Cape, then to retain her" till she might be handed over to someone possessing "authority from Captain Semmes, of the Alabama, or from the government of the Confederate States, to receive her."

Runners.

The Case of the United States now resumed Confederate Blockade the history of army purchases and blockade running. On the 3d of November 1863 Mr. Adams laid before Earl Russell new proofs to show the establishment at Bermuda of an insurgent depot of naval stores. On the 27th Earl Russell answered that Her Majesty's government did not consider that it could properly interfere in the matter. Other representations to the same effect were made by Mr. Adams, who closed the discussion by calling Earl Russell's attention to the condition exacted from all vessels in trade with the insurgent ports, that one-half of the tonnage of each vessel might be employed by the Confederate government for its own use both on the outward and homeward voyage; to which Earl Russell replied that, admitting all the facts stated to be true, there was nothing in them worthy of attention, since Her Majesty's subjects were "entitled by international law to carry on the operations of commerce equally with both belligerents, subject to the capture of their vessels and to no other penalty." Evidence was again and again laid before Earl Russell to show that these blockade runners were, in fact, transports of the insurgents, carrying their funds for Liverpool, and bringing back arms and munitions of war, and that the operations of these vessels were clearly within the terms of the foreign-enlistment act. On the 15th of March 1865 Mr. Adams complained of this matter for the last time. The United States steamer San Jacinto, having been wrecked on the Bahamas, and her officers and crew having found shelter at Nassau, the American man-of-war Honduras was sent there for the purpose of paying in coin the claims for salvage. The United States consul in vain asked permission for the Honduras to enter the port, although the Confederate cruiser Florida had, less than six months before, remained eleven days at Bermuda, and taken on board a full supply of coal. Mr. Adams stated to Earl Russell that this incident had made a painful impression in the United States, especially as there was not a day during the month in which it happened when thirty-five vessels engaged in breaking the blockade were not to be seen flaunting their contraband flags in that port. Neither had its

hospitality been restricted to that "hybrid class" of British ships running its illegal ventures on joint account with the insurgent authorities in the United States. The Chameleon, before known as the Tallahassee, and still earlier as a British steamer fitted out from London to play the part of a privateer out of Wilmington, was lying at that very time in Nassau, relieved, indeed, of her guns, but still retaining all the attributes of her hostile occupation; and only a few days earlier the steamer Laurel had reappeared at Nassau, after assuming the name of the Confederate States, and had not only been received there, but commissioned with a post mail to a port of Her Majesty's Kingdom.

Careers of the Confederate Cruisers.

In the fifth chapter the Case of the United States completed the discussion of the matters "wherein Great Britain failed to perform its duties as a neutral," by tracing the origin and career of each of the "Confederate cruisers," the Sumter; the Nashville; the Florida and her tenders, the Clarence, the Tacony, and the Archer; the Alabama and her tender the Tuscaloosa; the Georgia; the Tallahassee, or the Olustee; the Chickamauga; and the Shenandoah. The facts in these cases and the arguments upon them are discussed in the Digest.

Question of Damages.

The sixth and last chapter of the American Case is entitled: "The tribunal should award a sum in gross to the United States." The claims of the United States were classified as follows:

"1. The claims for direct losses growing out of the destruction of vessels and their cargoes by the insurgent cruisers. "2. The national expenditures in pursuit of those cruisers. "3. The loss in the transfer of the American commercial marine to the British flag.

"4. The enhanced payments of insurance.

"5. The prolongation of the war and the addition of a large sum to the cost of the war and the suppression of the rebellion."

The claims for direct losses were subdivided into:

"1. Claims for destruction of vessels and property of the Government of the United States.

"2. Claims for the destruction of vessels and property under the flag of the United States.

"3. Claims for damages or injuries to persons, growing out of the destruction of each class of vessels."

The government vessels destroyed were of two classes, those under the charge of the Treasury Department and those under the charge of the Navy Department. Evidence was presented to enable the tribunal to determine the amount of damage which should be awarded for the destruction of vessels or property, whether of the government or of private persons. A detailed statement was presented of the amount of the national expenditures in pursuit of the Confederate cruisers. The total amount of the claims submitted, so far as they were definitely estimated, was $26,101,907.31, exclusive of interest. This sum was composed of two principal items, $7,080,478.70, representing the expenses incurred by the United States in fitting out vessels to cruise for the Alabama and other Confederate cruisers, and $19,021,428.61, representing the amount claimed for the seizure, detention, and destruction of vessels by those cruisers. The latter item included claims for increased war premiums.

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Of the "national" or "indirect" claims no estimate was made. A statement by Mr. Cobden in the House of Commons, in 1864, was brought to the attention of the tribunal, to show the losses suffered by the United States in the transfer of the American commercial marine to the British flag. And it was said to be "impossible for the United States to determine," and perhaps impossible for anyone to estimate with accuracy, the vast injuries which these cruisers caused in prolonging the war." By the battle of Gettysburg in July 1863 the aggressive force of the insurrection on land was crushed. Thereafter "its only hope lay in prolonging a defense until, by the continuance of the permitted violations of British neutrality by the insurgents, the United States should become involved in a war with Great Britain." In pursuance of this policy the Confederate authorities "withdrew their military forces within the lines of Richmond, and poured money into Bullock's hands to keep afloat and increase his British-built navy, and to send it into the most distant seas in pursuit of the merchant marine of the United States."

On the amounts which should be allowed in respect of the several losses and injuries complained of, the American Case asked for interest to the day when the award was payable by the terms of the treaty-twelve months after the date of the award. The rate of interest asked for was 7 per cent, the legal rate in New York, and July 1, 1863, was suggested as an "average day" from which the interest should be computed.

Theory of the American Case.

The theories of law and of fact on which the Case of the United States was constructed were succinctly explained by Mr. Davis, its author, in his final report as agent of the United States at Geneva.1 Setting out with the assumption that the "tribunal of arbitration was a judicial body, substituted by the parties to take the place of force, and empowered to try and determine issues which otherwise could be settled (if at all) only by war," the author of the Case deemed it necessary, in order that full justice might be done, that the injuries of which the United States complained should be stated "with the fullness necessary to a

1

1 Papers Relating to the Treaty of Washington, IV. 2. Various statements having been made as to the authorship of the Case of the United States, it is proper to say that it was the work of Mr. J. C. Bancroft Davis, the American agent. (Mr. Fish and the Alabama Claims, 86.) In Appleton's Cyclopædia of American Biography the authorship of the Case is ascribed to the late Chief Justice Waite. It is probable that this erroneous statement was due to an inadvertent supposition that the Case was prepared by the American counsel at Geneva, of whom Mr. Waite was one. It is certain that that eminent man never authorized such a statement himself. On the contrary, when, on a certain occasion, I referred to his part in the litigation at Geneva, he disclaimed with characteristic modesty any credit for the result, and declared that in his opinion the success of the United States was largely due to Mr. Davis, who, as he said, not only prepared the American Case, but infused life into the American cause to the end. When the first five chapters of the Case were completed they were submitted, in the form of a printed memorandum, to President Woolsey, of Yale, Mr. William Beach Lawrence, Mr. E. R. Hoar, and Mr. Caleb Cushing. President Woolsey "made many valuable suggestions, most of which were adopted." Mr. Lawrence, who was consulted during the composition of the chapters, as well as afterward, gave "valuable hints, which improved the work." Mr. Hoar "expressed his general approval," and made several suggestions, which were adopted; and Mr. Cushing "made several valuable contributions, all of which were embodied in the work." Different members of the Cabinet were also consulted, "and, so far as they made suggestions, their views were adopted." "Several valuable contributions or hints" were also received from Mr. Fish. After the first five chapters were thus considered and revised, the sixth and final chapter, containing the formal statement of claims, was written; but, not being argumentative in character, it was not sent out for criticism as the other chapters had been. (See Report of Mr. Davis, Papers Relating to the Treaty of Washington, IV.3.)

Mr. George F. Edmunds, in his memorial address on Mr. Fish before the legislature of New York, referring to Mr. Davis as the author of the American Case, expressed the opinion that "no stronger statement of the position and rights of the United States could have been set forth by anyone." (Proceedings of the Legislature of the State of New York in Memory of Hon. Hamilton Fish, 48.)

determination in a court of law, and with the same frankness with which they would be stated in case of an appeal to force." In this view of the subject, the inquiry as to the attitude and the animus of the British Government toward the United States during the civil war became of the utmost importance, especially as affecting the question whether that government had used "due diligence" in the performance of its neutral duties. was not denied that there were many "acts of insubordinates which, taken individually and by themselves, would not form a just basis for holding culpable a government which was honestly and with vigilance striving to perform its duty as a neutral." Yet these same acts might, when taken in connection with each other, and with proof of animus, establish culpability in the government itself. Thus, it might be argued that the British Government would not be responsible for such acts, taken by themselves, as those of the collector of customs at Liverpool respecting the Florida and the Alabama, of the authorities at Nassau respecting the arming of the Florida at Green Cay, and subsequently respecting her supplies of coal, and of the authorities at Melbourne respecting the Shenandoah. But these acts were, it was maintained, all imbued with the character of culpable negligence, when it was shown "that the Government of Great Britain, by its indiscreet haste in counseling the Queen's proclamation recognizing the insurgents as belligerents, by its preconcerted joint action with France respecting the declarations of the Congress of Paris, by its refusal to take steps for the amendment of its neutrality laws, by its refraining for so long a time from seizing the rams at Liverpool, by its conduct in the affair of the Trent, and by its approval of the course of its colonial officers at various times; and that the individual members of government, by their open and frequent expressions of sympathy with the insurgents, and of desire for their success, had exhibited an unfriendly feeling, which might affect their own course, and could not but affect the action of their subordinates."

Moreover, it was contended "that while there were particular facts as to each vessel tending to fix responsibility upon Great Britain," the general facts that "the insurgents established and maintained, unmolested throughout the insurrection, administrative bureaus on British soil, by means of which the several cruisers were dispatched from British ports or were enabled to make them bases of hostile operations against the