Seward when he received it, and was also signified to the governor by the Duke of Newcastle, on behalf of the government at home. This stimulated the authorities to efforts to seize and to prosecute the chief offenders still hanging about the place. It was clear they were British subjects, guilty of something very like piracy, as well as of forgery and fraud. Of the judicial proceedings that followed I desire to speak with the moderation due to the courts of a foreign nation. But I could only repeat the remarks which I made in regard to this matter in my review of the case of the Florida. The arbitrators appear to me at least to have a duty to the parties before the tribunal to state their convictions of the exact truth, without fear or favor. In the performance of my share of it, I cannot omit to point out-(1,) the evasion of the important witnesses when they were wanted, and their re-appearance in perfect security afterward; (2,) the refusal of the collector at Long Cay, the most important and responsible agent of the government in the transaction, to appear at first; and (3,) the absence of all testimony as to the facts within his knowledge when he actually appeared; (4,) the avoidance of all testimony of the same kind on the part of Burnside, the magistrate of Inagua, whose first report, made to the governor, showing his knowledge of them, is among the papers before us; (5) the straw-bail required of the principal culprit by the court, and his ready forfeiture of it when he pleased; (6,) the intimation of Governor Rawson, that if it had been £1,000 instead of £100, it would have been equally supplied to him, if required to save him; and, lastly, the acquittal of the criminal by reason of the disappearance of the most important witness for his condemnation; all together present a more melancholy and scandalous spectacle of the paralysis of a judicial tribunal than has ever before been met with, at least in my experience.

The fact is too plain that the population of Nassau and its vicinity

quand il le reçut, et le duc de Newcastle donna à entendre la même chose au gouverneur de la part du gouvernement de l'Angleterre. Ceci poussa les autorités à faire leurs efforts pour saisir et pour poursuivre les principaux coupables qui rôdaient toujours autour de l'ile. Il était clair qu'ils étaient sujets anglais, coupables de quelque chose qui ressemblait beaucoup à de la piraterie, aussi bien que de faux et de fraude. Je désire parler des poursuites judiciaires qui suivirent avec la modération dûe aux cours d'une nation étrangère. Mais je ne pourrais que répéter les remarques que j'ai faites à l'égard de cette matière dans ma revue du cas du Florida. Les arbitres me semblent avoir, envers les parties qui sont devant ce tribunal, au moins le devoir d'exposer leurs convictions de l'exacte vérité sans peur ni partialité. Dans l'accomplissement de ma tâche, je ne puis omettre d'indiquer:

1. L'évasion des témoins importants quand on eut besoin d'eux, et leur réapparition en parfaite sécurité plus tard.

2. Le refus du receveur de Long Cay, l'agent le plus important et le plus responsable du gouvernement dans cette transaction, de paraître d'abord.

3. L'absence de tout témoignage, quant aux faits à sa connaissance, lorsqu'il parut effectivement.

4. Le silence de Burnside, le magistrat 'd'Inagua, sur tout témoignage de la même nature, et pourtant son premier rapport au gouverneur, attestant sa connaissance des faits, est parmi les documents devant nous.

5. La caution insignifiante exigée du principal coupable par la cour, et la facilité avec laquelle il y manqua quand il le jugea bon.

6. Le sentiment du gouverneur Rawson que, s'il s'était agi de £1,000 au lieu de £100, on les lui aurait également accordées, si cela avait été nécessaire pour le sauver et enfin, l'acquittement du criminel à cause de la disparition du témoin le plus important pour sa condamnation.

Le tout ensemble présente un spectacle plus triste et plus scandaleux de la paralysie d'un tribunal judiciaire qu'aucun de ceux qui se soient jamais présentés, au moins à ma connaissance.

Le fait est clair que la population de Nassau et de son voisinage, était devenue si

had become so completely demoralized by-familiarity with the fraudulent transactions constantly passing before their eyes, as well as the unusual profits accruing therefrom to themselves, that they were neither in a condition nor in a disposition to visit with harshness any crime, however flagrant, that could be associated, however remotely, with the operations of the insurgents in their waters.

It appears to me to be clear that the collector of the port of Long Cay failed in due diligence when he omitted to give any report whatever to the governor of the flagrant acts committed by Locke in forging the signature and attempting to represent the person of another man, as well as in conspiring, in defiance of the authorities, to obtain false salvage, by force of arms, of an innocent party.

It appears to me that the magistrate of Inagua failed in due diligence when he omitted to give immediate notice to the governor of the facts which he only reported when specially called upon by him three weeks afterward.

It appears to me that the governor failed in due diligence when he omitted to take notice of the presence of a vessel of the insurgents, in the port, which was expressly prohibited to enter it by the instructions of the government at home.

By reason of that failure, he further failed in due diligence in informing himself of the reasons which had brought that vessel, as well as its prize, the Hanover, into the port-facts which could not have failed to become known to him had he instituted a faithful investigation.

It appears to me that the attorney-general failed in due diligence when he gave his first opinion, declining to act against the men whom he had reason to believe criminals, as well as in all the subsequent proceedings which he instituted against them in the court.

For these acts of omission and commission, the nation injured can look for reparation only to the government holding the supreme authority over the territory wherein they happened. It clearly appears that no energy existed in any official quarter to maintain neutrality.

complétement démoralisée par l'habitude des transactions frauduleuses qui se passaient sans cesse devant ses yeux, et par les bénéfices inusités qu'elle en retirait, qu'elle n'était ni en état ni en disposition d'agir avec sévérité contre tout crime, quelque flagrant qu'il fût, que l'on pouvait rattacher, même d'une manière éloignée, aux opérations des insurgés dans ses eaux.

II me paraît clair que le receveur du port de Long Cay a manqué aux dues diligences" en omettant de donner au gouverneur aucune nouvelle quelconque des actes flagrants commis par Locke, en contrefaisant la signature et en essayant de jouer le rôle d'une autre personne, aussi bien que du complot en défi des autorités pour obtenir d'une partie innocente de faux droits de sauvetage par les armes.

Il me semble que le magistrat d'Inagua a manqué aux "dues diligences" en négligeant de donner immédiatement connaissance au gouverneur des faits qu'il ne rapporta que lorsqu'il y fut spécialement invité par lui, trois semaines plus tard.

Il me semble que le gouverneur à manqué aux "dues diligences dues diligences" en négligeant de remarquer la présence dans le port d'un vaisseau des insurgés, auquel il était expressément défendu d'entrer par les instructions du gouvernement de l'Angleterre.

En suite de cette négligence, il manqua plus tard aux "dues diligences" en s'informant des raisons qui avaient amené ce vaisseau, aussi bien que sa prise, le Hanover, dans ce port, fait qui n'aurait pas manqué d'arriver à sa connaissance, s'il avait fait une investigation consciencieuse.

Il me semble que l'attorney-general a manqué aux "dues diligences" en donnant son premier avis, refusant d'agir contre les hommes qu'il avait des raisons de croire criminels, aussi bien que dans toutes les mesures subséquentes qu'il prit contre eux dans les cours.

Pour ces actes d'omission et de commission, la nation lésée ne peut demander réparation qu'au gouvernement exerçant l'autorité suprême sur le territoire où ils se sont passés. Il ressort clairement qu'il n'y eut nulle énergie dans aucune des régions officielles pour maintenir la neutralité.

Hence my conclusion is, that a liability is clearly imposed upon Her Majesty's government, in the case of the Retribution, under the terms of the treaty of Washington..

Dès lors ma conclusion est qu'une responsabilité est clairement imposée au gouvernement de sa Majesté, dans le cas de la Retribution, d'après les termes du traité de Washington.

OPINIONS OF SIR ALEXANDER COCKBURN.

The indirect claims at first insisted on by the Government of the United States being now out of the question, we have to deal with the claims for damages, "growing out of the acts" of certain specified vessels, as to which it is alleged that, by reason of some default on the part of the government of Her Majesty the Queen of England, these vessels were enabled to take and destroy ships and cargoes belonging to citizens of the United States.

Causes of comward by the United States.

The causes of complaint put forward by the United States Governernment may be classed under the following heads: plaint brought for- 1. That by reason of want of due diligence on the part of the British government, vessels were allowed to be fitted out and equipped, in ports of the United Kingdom, in order to their being employed in making war against the United States, and, having been so equipped, were allowed to quit such ports for that purpose.

2. That vessels fitted out and equipped for the before-mentioned purpose, in contravention of the foreign-enlistment act, and being therefore liable to seizure under that act, having gone forth from British ports, but having afterward returned to them, were not seized as they ought to have been, but, having been allowed hospitality in such ports, were suffered to go forth again, to resume their warfare against the commerce of the United States.

3. That undue favor was shown in British ports to ships of war of the Confederate States in respect of the time these ships were permitted to remain in such ports, or of the amount of coal with which they were permitted to be supplied.

4. That vessels of the Confederate States were allowed to make British ports the base of naval operations against the ships and com-. merce of the United States.

Owing to all or some one or other of these causes, vessels of the Confederate States were enabled, it is alleged, to do damage to the commerce of the United States; and compensation is claimed in respect of the damage so done.

treaty of

The treaty of Washington, from which our authority is derived, lays down, for our guidance in dealing with and deciding on Washington. these claims, certain rules as to the obligations of Great Britain as a neutral state, which for the purpose of this arbitration are to be taken to have been binding on it.

Not, indeed, that the British government admits that these rules form part of the law before existing between nations. On the contrary, it is expressly stated that "Her Britannic Majesty has commanded her high commissioners and plenipotentiaries to declare that Her Majesty's government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I arose, but that Her Majesty's govern

ment, in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agrees that, in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that Her Majesty's government had undertaken to act upon the principles set forth in these rules. And the high contracting parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them."1

The rules in question are as follows:

A neutral government is bound

First. To use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

Thirdly. To exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.I

With these rules before it, the tribunal is directed to determine as to each vessel, "whether Great Britain has, by any act or omission, failed to fulfill any of the duties set forth in such rules, or recognized by the principles of international law not inconsistent with such rules."

a

The effect of this part of the treaty is to place this tribunal in a position of some difficulty. Every obligation for the non-ful- Difficulty arising fillment of which redress can be claimed presupposes from the treaty. prior existing law, by which a right has been created on the one side and a corresponding obligation on the other. But here we have to deal with obligations assumed to have existed prior to the treaty, yet arising out of a supposed law created for the first time by the treaty. For we have the one party denying the prior existence of the rules to which it now consents to submit as the measure of its past obligations, while the other virtually admits the same thing; for it "agrees to observe the rules as between itself and Great Britain in future, and to bring them to the knowledge of other maritime powers, and invite them to accede to them "—all of which would plainly be superfluous and vain if these rules already formed part of the existing law recognized as obtaining among nations.

It is, I cannot but think, to be regretted that the whole subject-matter of this great contest, in respect of law as well as of fact, was not left open to us, to be decided according to the true principles and rules of international law in force and binding among nations, and the duties and obligations arising out of them, at the time when these alleged causes of complaint are said to have arisen.

From the history of the treaty of Washington we know that it was proposed by the British commissioners to submit the entire question, both as to law and fact, to arbitration; but the commissioners of the United States refused to "consent to submit the question of the liability of Great Britain to arbitration unless the principles which should govern the arbitrator in the consideration of the facts could be first agreed upon." In vain the British commissioners replied that they "should be willing to consider what principles should be adopted for observance in

any

future, but that they were of opinion that the best mode of conducting an arbitration was to submit the facts to the arbitrator, and leave him free to decide upon them after hearing such arguments as might be necessary." The American commissioners replied that they should be willing to consider what principles should be laid down for observance in similar cases in future, but only with the understanding that 66 principles which should be agreed upon should be held to be applicable to the facts in respect to the Alabama claims." The British commissioners and government gave way, possibly without fully appreciating the extent to which the principles of which they were thus admitting the application would be attempted to be carried in fixing them with liability.

How this apparent anomaly arose is plain. Her Majesty's government, animated by a high sense of justice and by an earnest desire of conciliation, were anxious to remove every possible cause of complaint or sense of wrong which the Government and people of the United States had, or believed themselves to have, against Great Britain as to matters arising out of the civil war; they were willing that if, through any errrors or shortcomings on the part of British authorities, injury had been caused to American subjects, full redress should be afforded they were willing that the question should be determined by an inde pendent and impartial tribunal; and though they would naturally have preferred that the matters in dispute between the two countries should be decided by what they believed to be the rules of international law governing the case, rather than that, if the decision should be in favor of Great Britain, the American people should feel that the contest had not been determined according to what, in their view, were the principles applicable to it, Her Majesty's Government gave way to the desire of that of the United States, and consented that the rules by which it was agreed that the duties and obligations of the two nations should be governed in any future case should be taken to be the measure of the past obligations and duties of Great Britain with reference to the subject-matters of the dispute.

It was a great and generous concession, and though the effect of it might be a pecuniary sacrifice on the part of Great Britain, it was one which was cheerfully made on the one side, and I trust will not fail to be appreciated in the same generous spirit on the other.

If, however, the differences which have unhappily arisen between the United States and Great Britain were to be determined, not according to the rules of international law which the arbitrators to be agreed on should determine to be applicable to the case, but according to rules to be settled by the contending parties themselves, then I cannot but wish that the framers of this treaty had been able to accomplish the difficult task, now left to us, of defining more precisely what is meant by the vague and uncertain term "due diligence," and had also set forth the further "principles of international law, not inconsistent with the rules laid down," to which reference is made as possibly affecting the liability of Great Britain.

To some of the heads of complaint herein before referred to, this observation does not indeed apply. Whether vessels, which might originally have been seized, should have been so dealt with when they reentered British ports, or whether they were protected by the commissions they had in the mean while received from the confederate government; whether confederate ships of war were permitted to make British ports the base of naval operations against the United States; whether the accommodation afforded to them in British ports consti