REVUE CRITIQUE DE Législation et de Jurisprudence. THE GENEVA AWARD. On the 14th day of September last, the arbitration tribunal sitting at Geneva, awarded to the United States the sum of $15,500,000, in settlement of the claims, commonly known as the Alabama Claims. This judgment was rendered by a majority of the Court, Sir Alexander Cockburn concurring, on other grounds, with respect to the privateer Alabama. As might have been expected, this decision has not satisfied all parties. The English Conservative Press, which has uniformly denounced the Liberal Cabinet for the manner in which the Treaty of Washington has been carried out, looks upon it as a national humiliation; and that portion of the American Press which is hostile to the administration of President Grant, loudly asserts that the United States have gained nothing after all. It would seem, however, to the disinterested looker-on that these complaints are unfounded. It is not of the judgment rendered, but of the Treaty under which it was rendered, and especially of the erroneous opinions held by the law officers of the Crown with respect to the duties of neutrals, that the English public has a right to complain. The principle of the responsibility of neutrals, once conceded by England, as it was under the Treaty, nothing remained for the arbitrators, but to decide whether the British Government had acted with "due diligence," and if not, to determine the amount of the damages suffered by the United States. The Americans, again, should be the last to express dissatisfaction with the result of the proceedings at Geneva; for not only is the Treaty itself a great triumph for them and the world at VOL. II. AA No. 4. large, but the award gives them the full amount of their direct claims. At the sitting of the Joint High Commission, on March 8th, 1871, the American Commissioners stated "that the claims "for the loss and destruction of private property, which had "thus far been presented, amounted to about fourteen millions "of dollars, without interest." These claims constitute all that the Geneva Court could adjudicate upon; for the national losses, -such as the expenses incurred in the pursuit of the privateers, -forming the Indirect Claims, were thrown out, in June last, by the Court, as inadmissible, as well under the Treaty as in International Law. The Geneva award has been published in full in a supplement to the London Gazette of the 26th of September last, together with the opinions or reasons of the arbitrators. These opinions are generally brief; that of Sir Alexander Cockburn, however, occupies 250 pages of the Gazette. Its length is not however a matter of surprise, when we consider that nearly one-half of it is devoted to considerations which did not affect the case, such as hostile criticisms of the three rules of neutrality assented to by Great Britain and a passionate vindication of English honour. In one place, he says: "Sitting on this Tribunal as in some sense the representative of Great Britain, I cannot allow these statements to go forth to the world without giving them the most positive and unqualified contradiction. They are wholly uncalled for, as being unnecessary to determine the question whether, in particular instances, Great Britain had been wanting in diligence; they are not only unjust, but in the highest degree ungenerous-I use the mildest expression I can find— on an occasion when Great Britain is holding out the hand of friendship and conciliation to America, and though, perhaps at a heavy sacrifice, is seeking to bury all sense of past grievance by submitting the claims of the United States to peaceful and friendly arbitration. But it is not only that th se observations are ungenerous and unjust. There is in this extraordinary series of propositions the most singular confusion of ideas, misrepresentation of facts, and ignorance, both of law and history, which were perhaps ever crowded into the same space; and for my part I cannot help expressing my sense, not only of the gross injustice done to my country, but also of the affront offered to this Tribunal by such an attempt to practice on our supposed credulity or ignorance." The better to demonstrate this generosity, the learned Chief Justice sharply criticises the three rules of neutrality which the Treaty made it his duty to carry out, not to criticise. He says: "I cannot but think, that it is 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." Having sketched the history of The Treaty of Washington, and reviewed the opinions of many writers on International Law, as well as the practice of Great Britain and of the United States with respect to the duties of neutrals, the Lord Chief Justice comes to the conclusion that the three rules in question are contrary to the law of nations:: "It seems to me, therefore, that the law relating to contraband of war must be considered, not as arising out of obligations of neutrality, but as altogether conventional, and that by the existing practice of nations the sale of such things to a belligerent by the neutral subject is not in any way a violation of neutrality. Then how stands the matter as to ships of war? In principle, is there any difference between a ship of war and any other article of warlike use? I am unable to see any. Nor can I discover any difference in principle between a ship equipped to receive her armament and a ship actually armed. A ship of war implies an armed ship, for a ship is not actually a ship of war till armed. Of the authors I have cited, and who hold ships of war to be contraband of war, no one of those who wrote before these disputes between the United States and Great Britain had arisen, with the exception of M. Hautefeuille, makes any distinction between ships equipped to receive their armaments and ships actually armed. M. Hautefeuille, who, as we have seen, refuses to a ship equipped for armament, but not armed, the character of contraband, treats the equipping and arming as a violation of neutrality; but he gives no reason and cities no authority, and seems to me herein I say it with the utmost respect-inconsistent with himself." It may not be devoid of interest to note the definition of In'ternational Law laid down by the Lord Chief Justice, and the degree of authority which he allows to text writers in cases of international disputes. He says: "The great authority of Chancellor Kent and of the majority of writers is in favour of the latter view. But, in truth, the question does not depend on the lucubrations of learned professors or speculative jurists. However authoritatively these authors may take upon themselves to write, and however deserving their speculations may be of attention, they cannot make the law. International Law is that to which nations have given their common assent, and it is best known as settled by their common practice. When the authority of M. Rolin Jacquemyns as to the culpability of Great Britain is cited, I must protest against the question being determined not according to existing positive law,' but to the opinion of savans as to what the law should have been, or should now be made." Passing over other portions of the argument of the English arbitrator, which are of minor importance and of little or no interest from a legal point of view, we come to that part wherein he defines and explains what constitutes "due diligence." This was the important, the only question of law, under the Treaty, coming within the province of the Geneva Court. It is also a point of deep interest in private jurisprudence; and this consideration, combined with the general attention which the award has attracted throughout the Dominion, has induced the writer to publish the opinions of all the arbitrators on the point. D. GIROUARD.. Montreal, December 1st, 1872. "DUE DILIGENCE." Sir ALEXANDer Cockburn:— "I proceed then to consider what is this 'due diligence' which the British Government admits that it was bound to apply to prevent the fitting-out and equipping of the vessels in question. I apprehend that such diligence would be neither greater nor less than any other neutral Government would be bound to apply to the preventing of any breach by its subjects of any head of neutral duty prescribed by International Law. The difficulty of the position is, that the question has not hitherto come within the range of juridical discussion on subjects connected with International Law. Hitherto, where a Government has acted in good faith, availing itself fairly of such means as were at its disposal, it has not been usual to consider it responsible to a belligerent Government for acts of its subjects that might have eluded its vigilance, or to submit the degree of diligence exercised by it to judicial appreciation. And no country has insisted more strongly on this as the limit of national responsability than that of the United States. We must endeavour to find a solution for ourselves. As I have already observed, I cannot agree that the question of what is due diligence' should be left to the unassisted mind of each individual Arbitrator; nor can I agree that the solution is to be found in the facts of each individual Case; and though Judges may be often disposed to apply the maxim, to which our honourable president has more than once referred, ex facto jus oritur, it is, I think, one which must not be pushed too far. I agree with M. Troplong, who, writing on this subject with reference to civil law, after referring to the different opinions of jurists on the subject of diligence, says:— Il est vrai que jusqu'à présent les Tribunaux se sont montrés assez indifférents sur ces disputes de la chaire; mais peut-être pourrait-on leur faire le reproche de n'avoir amorti la vivacité de la question, qu'en étouffant tout ce qui est discussion de système et point de droit, sous la commode interprétation des faits, et sous un équitable mais facile arbitraire. Néanmoins, dans cette matière, comme dans toutes les autres, il y a des règles qu'il faut se garder de dédaigner: elles aident le magistrat, elles font luire de précieuses lumières pour ceux qui ont mission de discuter sur les faits et de les juger. Ces règles m'ont paru simples et judicieuses; je vais les exposer comme je les entends dans tous les cas, et dussé-je me tromper, je prie le lecteur de ne pas m'adresser, comme fin de non-recevoir, le reproche de me livrer à d'oiseuses disgressions. De tous les systèmes, le moins excusable, à mon avis, c'est celui qui, sous prétexte de fuir l'esprit de système, se fait une loi de n'en avoir aucun.' "It seems to me, therefore, right, before proceeding to deal with the facts, to seek in the domain of general jurisprudence for principles to guide us in judging how far the obligations of Great Britain have or have not been satisfied. No branch of law has been the subject of more discussion among juridical writers than that of diligentia and its correlative culpa, the latter being neither more nor less than the absence of the former. . . . . The jurists of the 17th century, among whom Vinnius occupies a prominent place, divided the diligentia and corresponding culpa of the Roman Law into three degree. Thus we have culpa lata, levis, levissima, taking the intermediate degree, or culpa levis, as being the absence of the diligence which a man of ordinary prudence and care would apply in the management of his own affairs in the given circumstances of the case. Though attacked by Donellus, this tripartite division of diligence and default held its ground among juridical writers for a considerable time; but on the formation of the French Code, the practical good sense of those by whom that great work was carried out, so visible in their discussions, induced them to discard it, and to establish one common standard of diligence or care as applicable to all cases of civil obligation-namely, that of the bon père de famille, the diligens pater familias of the Roman digest. The Code Napoléon has been followed in the Codes of other countries. Among others the Austrian Code has lately adopted the same principle." French, German and American authorities are then cited. Quoting from Mr. Justice Story, Sir A. Cockburn continues:--"Common or ordinary diligence is that degree of diligence which men in general exert in respect to their own concerns. It may be said to be the common prudence which men of business and heads of families usually exhibit in affairs which are interesting to them; or, as Sir William Jones has expressed it, it is the care which every person of common prudence and capable of governing a family takes of his |