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.

ward by the United States.

The causes of complaint put forward by the United States GovernCauses of com- ernment 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 commerce 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.

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

anent, 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."

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.1

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."

Diff culty arising from the treaty.

The effect of this part of the treaty is to place this tribunal in a position of some difficulty. Every obligation for the non-fulfillment of which redress can be claimed presupposes a 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

Treaty of Washington, Article VI.

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 "any 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 hereinbefore 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

tuted a violation of neutrality, for which Great Britain can be held liable, are questions which are left to be decided and must be decided according to the rules of international law alone.

But when we have to deal with the far more important question of the liability of Great Britain by reason of the omission to use "due diligence" to prevent the equipment of vessels of war in her ports, as required by the treaty, we find nothing in the treaty to direct us as to the meaning of that term, especially as regards the degree of diligence which is to be understood to be required by it.

Left in this difficulty, we must endeavor to determine for ourselves the extent and meaning of the "due diligence" by which we are to test the alleged shortcomings of the government of Great Britain. For, it is plain that the standard of "due diligence" ought not to be left to the unguided discretion of each individual arbitrator. The municipal law of every country, wherever diligence is required by the law, whether in respect of obligations arising out of contract, or in regard to the due care which every one is bound to exercise to avoid doing harm to the persons or property of others-ne alienum lædat-prescribes some standard by which the necessary degree of diligence may be tested.

Dealing here with a matter appertaining to law, it is to juridical science that we must look for a solution of the difficulty. And since we have to deal with a question of international law, although, it is true, of an exceptional character, it seems to me that it will be highly useful to endeavor to form a clear view of the reciprocal rights and duties between belligerents and neutrals, created by international law generally, and of the diligence necessary to satisfy the obligations which that law imposes. I cannot concur with M. Staempfli, that, because the practice of nations has at times undergone great changes, and the views of jurists on points of international law have often been and still are conflicting, therefore there is no such thing as international law, and that, consequently, we are to proceed independently of any such law-for such is the effect of his reasoning, if I understand it rightly-according to some intuitive perception of right and wrong, or speculative notions of what the rules as to the duties of neutrals ought to be. It seems to me that when we shall have ascertained the extent to which a neutral state is responsible, according to the general law of nations, for breaches of neutrality committed by its subjects, and the degree of diligence it would be called upon to exercise under that law, in order to avoid liability, we shall be better able to solve the question of what constitutes due diligence in the terms of the treaty of Washington. That treaty may have admitted a liability in the respect of the equipment of ships where none existed by international law before, as I certainly think it has; but the degree of diligence required of a neutral government to prevent breaches of neutrality by its subjects must be determined by the same principles, whatever may be the nature of the particular obligation.

Besides the necessity of thus considering the relation of belligerents and neutrals with reference to the subject of "due diligence," we have further, in order to satisfy the exigency of the articles of the treaty, to consider whether, besides in the omission of "due diligence," Great Britain has failed to fulfill any duty imposed by any principle of international law not inconsistent with the rules laid down. It is clear also that, with reference to the other heads of complaint, our decision must necessarily depend entirely on the rules of international law applicable thereto. It seems to me, therefore, desirable, in the first place, to endeavor to take an accurate survey of the law by which the relative

rights of belligerents and neutrals are fixed and determined, as essential to the solution of the questions we are called on to decide.

I proceed, therefore, to consider the subject of neutral obligations in time of war.

Elements of neu trality.

Neutrality may be said to be the status of a country relatively to two others which are at war with one another, while it remains at peace with both, and gives assistance to neither. The last-mentioned condition is plainly an essential element of that which goes before it; for, to give assistance to either of the belligerents would be indirectly to take a part in the war, and would afford a sufficient reason to the one whose enemy was thus assisted, for having recourse to force to prevent such assistance from being given.

It is obviously immaterial in what form the assistance is rendered, so Obligations of the long as its purpose and effect is to add to the means of the neutral state. belligerent for the purpose either of offense or defense. Troops, men, horses, ships, arms, munitions of war of every kind, money, supplies-in short, whatever can add to the strength of the belligerent for the purpose either of attack or defense-are things that cannot be supplied by a neutral state to either belligerent without forfeiting the character of neutrality and the rights incidental to it.

In like manner the neutral sovereign cannot allow the use of his territory for the passage of troops of either belligerent, still less allow it to be used by either as a base of hostile operations. He cannot lend

his ships for the transport of troops, arms, or munitions of war, or even for the transmission of dispatches. Whatever restrictions, in the exercise of his territorial rights, he imposes on the one belligerent, he must impose on the other also; for restraints-however lawful and proper in themselves-enforced as against the one, dispensed with as regards the other, are indirectly assistance given to the one so favored.

Obligations of the

state.

Whatever obligations attach by the general principles of the law of nations to the state or community, as a whole, are equally subjects of a neutral binding on its subjects or citizens. For the state or community is but the aggregate of its individual members, and whatever is forbidden to the entire body by that law, is equally forbidden to its component parts. In this sense, and in this sense only, can it be said that international law-in other words, the common law of nationsforms part of the common law of England; for the greater part of the rules of international law, by which nations now consent to be bound, are posterior in date by many centuries to the formation of the common law of England. Nevertheless, Great Britain forming part of the great fraternity of nations, the common law adopts the fundamental principles of international law, and the obligations and duties they impose, so that it becomes, by force of the municipal law, the duty of every man, so far as in him lies, to observe them; by reason of which any act done in contravention of such obligations becomes an offense against the law of his own country.

Liability of the

subjects.

But the subject who thus infringes the law of his own country by violating the neutrality which that law enjoins him to mainstate for acts of its tain, is amenable for his offense to the law of his own country alone, except when actually taking part in the war as a combatant, when, of course, he is liable to be dealt with according to the laws of war. The offended belligerent has otherwise no hold on him. International law knows of no relations between a state and the subjects of another state, but only of those which exist between state and state. But this being so, the belligerent, against whom a breach of neutrality has been committed by the subject of a neutral