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fore the Tribunal. Neither of them seems to have imagined that the cause of truth or of justice would have been promoted by going outside of the docu. ments and arguments submitted, in order to criticise or cavil at the opinions of the British Arbitrator.
We begin with Mr. Adams. His opinions are of some length; and, although containing correct statements of local law where such statements were mate. rial, yet deserve to be regarded in the better light of diplomacy and of international jurisprudence. He does not descend from the Bench into the arena of the Bar. If he had seen fit to do this, he might have discovered quite as much inducement to acrimony and acerbity of discussion in the wanton accusations of the entire political life of the United States, which the British Case, Counter-Case, and Argument contain, as Sir Alexander did in any thing which the Cases and Argument of the United States contained. But he yielded to no such temptation. “He put aside the temper of the advocate," as the Telegraph truly says, to speak with the impartiality of a jurist and the delicate honor of a gentleman.” Accordingly, his opinions are without blemish either in temper or in language. He finds want of due diligence in the matter of the Alabama: and so did the British Arbitrator. He finds extraordinary disregard of law in the matter of the Florida: and so did the British Arbitrator. He finds a series of acts of scandalous wrong perpetrated by officers of the British Government in both these cases: and so did the British Arbitrator. He can not, as the British Arbitrator does, find justification for the acts of negligence of British Colonial authorities in the matter of the Shenandoali or that of the Retribution. And, as might have been anticipated, his conception of the duties of a State suppose a higher standard of national morality than that recognized by the British Arbitrator.
Mr. Stæmpfli's opinions are also of considerable length, but differ from those of Mr. Adams, especially in the form, which is that customary among the jurists of the Continent. He also, while confining himself to the most rigorous deductions of international law, in discussing the acts of the inculpated Confederate cruisers, yet writes like a statesman, habituated to breathe the air of that “climate” of “the impartiality of a jurist and the delicate honor of a gentleman” which was not the climate" of the British Arbitrator.
The opinions of the Vicomte d'Itajubá are very brief, but in the same form of analysis as the opinions of Mr. Stæmpfli. It is to be noted, however, that, beyond stating his reasoning and conclusion as to each of the inculpated cruisers, he speaks of only one of the special questions argued, namely, that of the effect to be given in British ports to the Confederate cruisers exhibiting commissions. •As to this point he concludes as follows:
"La commission dont un tel navire est pourvu, ne suffit pas pour le couvrir vis-à-vis du neutre dont-il à violé la neutralité, Et comment le belligérant se plaindrait-il de l'application de ce principe ? En saisissant ou détenant le navire, le neutre ne fait qu'empêcher le belligérant de tirer profit de la fraude commise sur son territoire par ce même belligérant; tandis que, en ne procédant point contre le navire coupable, le neutre s'expose justement à ce que l'autre belligérant suspecte sa bonne foi."
In these observations, we see that the Vicomte d'Itajubá appeals to the same “intuitive perceptions of right” which are so unpalatable to the British Arbitrator.
The Vicomte d'Itajubá does not give us any opinion on the subject of " due diligence generally considered:” which tends to prove that his call for argument on that point was not induced by any need on his part for elucidation of Counsel.
The opinions of Count Sclopis,—not only those in which he judges the particular cases, but especially those in which he discusses the questions of public law, as to which mere opinion was drawn from the Ar. bitrators, virtually at the instance of Great Britain,are instructive and interesting disquisitions, of permanent value as the views of an erudite legist and a practiced statesman. The paper on due diligence is remarkable for its profound and comprehensive view of that subject in its higher relation to the acts of sovereign States. In this paper, he thoroughly exposes the fallacy of the argument of Sir Roundell Palmer, which would lower the generality and the greatness of the Treaty Rules to the level of the municipal law of Great Britain.
And now, having reviewed the stipulations of the Treaty in this respect, the debates attending it both before and after its conclusion, the proceedings of the Tribunal of Arbitration, and the separate opinions of the Arbitrators, we come to the consideration of what they actually decided, the immediate effect of the De cision, and the general relation thereof to Great Britain, to the United States, and to the other Governments of Europe and America.
REVIEW OF THE DECISION OF THE TRIBUNAL ON NATIONAL
To begin, let us see what was the true thought of the Tribunal regarding the class of claims, as to which the British Government displayed so much superfluous emotion subsequently to the publication of the American Case, and which the Tribunal passed upon, in effect, without previous decision whether they were or were not embraced in the Treaty.
I have already called attention to the fact that no consideration of direct or indirect, immediate or consequential, appears in that opinion of the Tribunal. The Arbitrators express a conclusion, not the reasons of the conclusion. We might, it is true, easily infer those reasons from the language in which the conclusion is expressed. That language excludes all such trivial questions as whether“ direct” or “indirect," and invokes us to seek for the unexpressed reasons in some higher order of ideas. Meanwhile we have, at length, in the final “Decision," means of ascertaining the whole thought of the Tribunal.
The Arbitrators had to pass on a claim of indemnity for the costs of pursuit of Confederate cruisers by. the Government:-a claim admitted to be within the jurisdiction of the Tribunal, and which the Tribunal rejects on the ground that such costs “are not, in the
judgment of the Tribunal, properly distinguishable from the general expenses of the war carried on by the United States.??
Here, the major premise is assumed as already determined or admitted, namely, that “the general expenses of the war” are not to be made the subject of award. Why not? Because such expenses are in the nature of indirect losses? No such notion is intimated. Because the claim, as being for indirect losses, is not within the purview of the Treaty? That is not said or implied. Because such a claim is beyond the jurisdiction of the Tribunal? No: for the Tribunal takes jurisdiction and judges in fact. The question then remains, --why is a claim for losses pertaining to the general expenses of the war to be rejected?
There can be no mistake as to the true answer. It is to be found in the preliminary opinion expressed by the Arbitrators.
The Tribunal, in that opinion, says that the controverted [the so-called indirect] claims “do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations." Why does not the injury done to a nation by the destruction of its commerce, and by the augmentation of the duration and expenses of war, constitute “ a good foundation for an award of compensation or computation of damages between nations?” The answer is that such subjects of reclamation are not properly distinguishable from the general expenses of war."