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DECISION AND AWARD
Made by the Tribunal of Arbitration constituted by virtue of the first Article
of the Treaty concluded at Washington the 8th of May, 1871, between Her Majesty the Queen of the United Kingdom of Great Britain and Ireland and the United States of America.
Her Britannic Majesty and the United States of America having agreed by Article I. of the Treaty concluded and signed at Washington the 8th of May, 1871, to refer all the claims “generically known as the Alabama Claims" to a Tribunal of Arbitration to be composed of five Arbitrators, named:
One by Her Britannic Majesty,
and Her Britannic Majesty, the President of the United States, H. M. the King
of Italy, the President of the Swiss Confederation, and H. M. the Emperor
of Brazil, having respectively named their Arbitrators, to wit: Her Britannic Majesty :
Sir Alexander James Edmund Cockburn, Baronet, a Member of Her Maj
esty's Privy Council, Lord Chief Justice of England; The President of the United States :
Charles Francis Adams, Esquire ; His Majesty the King of Italy: His Excellency Count Frederic Sclopis of Salerano, a Knight of the Order
of the Annunciata, Minister of State, Senator of the Kingdom of Italy; The President of the Swiss Confederation :
Mr. James Stæmpfli; His Majesty the Emperor of Brazil: His Excellency Marcos Antonio d'Araujo, Viscount of Itajubá, a Grandee
of the Empire of Brazil, Member of the Council of H. M. the Emperor of Brazil, and his Envoy Extraordinary and Minister Plenipotentiary in
France; And the five Arbitrators above named having assembled at Geneva, in Switzerland, in one of the Chambers of the Hôtel de Ville, on the 15th of December, 1871, in conformity with the terms of the Second Article of the Treaty of Washington ‘of the 8th of May of that year, and having proceeded to the inspection and verification of their respective powers, which were found duly authenticated, the Tribunal of Arbitration was declared duly organized.
The Agents named by each of the High Contracting Parties, by virtue of the same Second Article, to wit: For Her Britannic Majesty : Charles Stuart Aubrey, Lord Tenterden, a Peer of the United Kingdom,
Companion of the Most Honorable Order of the Bath, Assistant Under
Secretary of State for Foreign Affairs; And for the United States of America:
John C. Bancroft Davis, Esquire; whose powers were found likewise duly authenticated, then delivered to each of the Arbitrators the printed Case prepared by each of the two Parties, accompanied by the documents, the official correspondence, and other evidence on which each relied, in conformity with the terms of the Third Article of the said Treaty.
In virtue of the decision made by the Tribunal at its first session, the Counter-Case, and additional documents, correspondence, and evidence, referred to in Article IV. of the said Treaty, were delivered by the respective Agents of the two Parties to the Secretary of the Tribunal on the 15th of April, 1872, at the Chamber of Conference, at the Hôtel de Ville of Geneva.
The Tribunal, in accordance with the vote of adjournment passed at their second session, held on the 16th of December, 1871, reassembled at Geneva on the 15th of June, 1872; and the Agent of each of the Parties duly delivered to each of the Arbitrators and to the Agent of the other Party the printed Argument referred to in Article IV. of the said Treaty.
The Tribunal having since fully taken into their consideration the Treaty, and also the cases, counter-cases, documents, evidence, and arguments, and likewise all other communications made to them by the two Parties during the progress of their sittings, and having impartially examined the same,
Has arrived at the decision embodied in the present Award :
Whereas, having regard to the Sixth and Seventh Articles of the said Treaty, the Arbitrators are bound under the terms of the said Sixth Article,“ in deciding the matters submitted to them, to be governed by the three Rules therein specified, and by such principles of International Law not inconsistent therewith as the Arbitrators shall determine to have been applicable to the case;"
And whereas the “due diligence" referred to in the first and third of the said Rules ought to be exercised by neutral Governments in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part;
And whereas the circumstances out of which the facts constituting the subject-matter of the present controversy arose were of a nature to call for the exercise on the part of Her Britannic Majesty's Government of all possible solicitude for the observance of the rights and the duties involved in the Proclamation of Neutrality issued by Her Majesty on the 13th day of May, 1861;
And whereas the effects of a violation of neutrality committed by means of the construction, equipment, and armament of a vessel are not done away with by any commission which the Government of the belligerent Power benefited by the violation of neutrality may afterward have granted to that vessel: and the ultimate step, by which the offense is completed, can not be admissible as a ground for the absolution of the offender; nor can the consummation of his fraud become the means of establishing his innocence;
And whereas the privilege of exterritoriality accorded to vessels of war has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality;
And whereas the absence of a previous notice can not be regarded as a failure in any consideration required by the law of nations in those cases in which a vessel carries with it its own condemnation ;
And whereas, in order to impart to any súpplies of coal a character inconsistent with the second Rule, prohibiting the use of neutral ports or waters as a base of naval operations for a belligerent, it is necessary that the said supplies should be connected with special circumstances of time, of persons, or of place, which may combine to give them such character;
And whereas, with respect to the vessel called the Alabama, it clearly results from all the facts relative to the construction of the ship at first designated by the “No. 290” in the port of Liverpool, and its equipment and armament in the vicinity of Terceira, through the agency of the vessels called the Agrippina and the Bahama dispatched from Great Britain to that end, that the British Government failed to use due diligence in the performance of its neutral obligations; and especially that it omitted, notwithstanding the warnings and official representations made by the diplomatic agents of the United States during the construction of the said “No. 290," to take in due time any effective measures of prevention, and that those orders which it did give at last for the detention of the vessel were issued so late that their execution was not practicable;
And whereas, after the escape of that vessel, the measures taken for its pursuit and arrest were so imperfect as to lead to no result, and therefore can not be considered sufficient to release Great Britain from the responsibility already incurred;
And whereas, in despite of the violations of the neutrality of Great Britain committed by the “290," this same vessel, later known as the Confederate cruiser Alabama, was on several occasions freely admitted into the ports of Colonies of Great Britain, instead of being proceeded against as it ought to have been in any and every port within British jurisdiction in which it might have been found;
And whereas the Government of Her Britannic Majesty can not justify itself for a failure in due diligence on the plea of the insufficiency of the legal means of action which it possessed;
Four of the Arbitrators, for the reasons above assigned, and the fifth for reasons separately assigned by him, are of opinion,
That Great Britain has in this case failed, by omission, to fulfill the duties
prescribed in the first and the third of the Rules established by the Sixth Article of the Treaty of Washington.
And whereas, with respect to the vessel called the Florida, it results from all the facts relative to the construction of the Oreto in the port of Liverpool and to its issue therefrom, which facts failed to induce the Authorities in Great Britain to resort to measures adequate to prevent the violation of the neutrality of that nation, notwithstanding the warnings and repeated representations of the Agents of the United States, that Her Majesty's Government has failed to use due diligence to fulfill the duties of neutrality;
And whereas it likewise results from all the facts relative to the stay of the Oreto at Nassau, to her issue from that port, to her enlistment of men, to her supplies, and to her armament with the co-operation of the British vessel Prince Alfred at Green Cay, that there was negligence on the part of the British Colonial Authorities;
And whereas, notwithstanding the violation of the neutrality of Great Britain committed by the Oreto, this same 'vessel, later known as the Confederate cruiser Florida, was nevertheless on several occasions freely admitted into the ports of British Colonies;
And whereas the judicial acquittal of the Oreto at Nassau can not relieve Great Britain from the responsibility incurred by her under the principles of International Law; nor can the fact of the entry of the Florida into the Confederate port of Mobile, and of its stay there during four months, extinguish the responsibility previously to that time incurred by Great Britain :
For these reasons,
That Great Britain has in this case failed, by omission, to fulfill the duties prescribed in the first, in the second, and in the third of the Rules established by Article VI. of the Treaty of Washington.
And whereas, with respect to the vessel called the Shenandoah, it results from all the facts relative to the departure from London of the merchant vessel the Sea King, and to the transformation of that ship into a Confederate cruiser under the name of the Shenandoah, near the island of Madeira, that the Government of Her Britannic Majesty is not chargeable with any failure, down to that date, in the use of due diligence to fulfill the duties of neutrality;
But whereas it results from all the facts connected with the stay of the Shenandoah at Melbourne, and especially with the augmentation which the British Government itself admits to have been clandestinely effected of her force by the enlistment of men within that port, that there was negligence on the part of the Authorities at that place:
For these reasons,
That Great Britain has not failed, by any act or omission, to fulfill any of the duties prescribed by the Rules of Article VI. in the Treaty of Washington, or by the principles of International Law not inconsistent therewith, in respect to the vessel called the Shenandoah, during the period of time anterior to her entry into the port of Melbourne.
And by a majority of three to two voices, the Tribunal declares that Great Britain has failed, by omission, to fulfill the duties prescribed by the second and third of the Rules aforesaid, in the case of this same vessel, from and after her entry into Hobson's Bay, and is therefore responsible for all acts committed by that vessel after her departure from Melbourne on the 18th day of February, 1865. And so far as relates to the vessels called
(Tenders to the Florida),
That such Tenders or auxiliary vessels, being properly regarded as accessories, must necessarily follow the lot of their Principals, and be submitted to the same decision which applies to them respectively.
And so far as relates to the vessel called the Retribution,
That Great Britain has not failed, by any art or omission, to fulfill any of the duties prescribed by the three Rules of Article VI. in the Treaty of Washington, or by the principles of International Law not inconsistent therewith. And so far as relates to the vessels called
The Chickamauga, respectively,
That Great Britain has not failed, by any act or omission, to fulfill any of the duties prescribed by the three Rules of Article VI. in the Treaty of Washington, or by the principles of International Law not inconsistent therewith. And so far as relates to the vessels called
The V. H. Joy, respectively,
And whereas, so far as relates to the particulars of the indemnity claimed hy the United States, the costs of pursuit of the Confederate cruisers are not, in the judgment of the Tribunal, properly distinguishable from the general expenses of the war carried on by the United States,