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ARTICLE IV.-THE TREATY OF WASHINGTON IN 1871.

II.

THE GENEVA ARBITRATION.

THE claims generically known as the "Alabama claims," after vain attempts to have them settled, were at length submitted to a Tribunal of Arbitration. It is not our intention to retrace the course of negotiation until it came to this successful end. On the part of the United States untenable ground was taken in regard to the Queen's proclamation at the beginning of our war. On the part of Great Britain, there was a feeling that municipal law was the measure of international duties, and a seeming willingness that this country should fall to pieces, which gave rise here to indignation and disgust. The war came to a close with the union preserved; cotton was exported; intercourse and industry returned into their old channels. Meanwhile that healthy opinion in regard to the breadth of international obligation, which such men of state as Cobden, and such jurists as Phillimore, had professed, found other open advocates. Even members of the cabinet expressed regret at the escape of the vessels that violated the laws of neutrality. It was felt that in another turn of things the United States would observe their neutrality law with one eye shut. Expeditions on the land must follow the same rule as those on the sea. Who could tell what unneutral want of due diligence, what boldness in relying on the carelessness of officials in the United States, what Fenian raids, what chronic hostile feeling, the conduct of England might provoke.

Exemplo quodcunque malo comittitur, ipsi
Displicet auctori.

One evidence of a wiser state of feeling in Great Britain was the appointment of a Neutrality Laws Commission in 1867, which after twenty-four meetings reported in 1868.* This

* This report, with a valuable appendix on the neutrality laws of other countries, was published at the time by itself, and was afterward, with the same supplement, annexed to Vol. iii. of the British case before the Tribunal of Geneva.

body, consisting of some of the leading publicists of the kingdom, as Phillimore, Twiss, and Vernon Harcourt (Historicus), as well as of eminent judges, and of lawyers, such as Roundell Palmer, with one warm friend of the United States, Mr. W. E. Foster, represented, of course, various shades of opinion, and sought for light from various persons who were not members of the Commission. The report recommends, among other things, that any person, within her Majesty's dominions, who shall fit out, arm, dispatch or cause to be dispatched, or shall build or equip any ship "with intent or knowledge that the same shall or will be employed in the service of any foreign power in any war being waged" against any belligerent power not at war with Great Britain; or shall commence or attempt to do, or shall aid in doing, any of these acts, every person so offending shall be deemed guilty of a misdemeanor. Extensive powers also are given to the Secretary of State, or other persons beyond the seas having chief authority, to issue a warrant for the arrest, search, and detention of such ships, until they can be condemned or released by process of law. The owners or agents can apply for their release, and the nearest Court of Admiralty is to act upon the application, with the usual Admiralty appeal to the Privy Council. But from this resolution are excepted foreign commissioned ships, and also those foreign non-commissioned ships,* coming into the country under stress of weather, upon which "no fitting out or equipment of a warlike character shall have taken place in the country."

Two other special recommendations made by the commission deserve notice. One is that prizes, "not entitled to recognition as commissioned ships of war," when captured by vessels violating the neutrality of Great Britain, shall, if brought within British jurisdiction, on due proof in the Admiralty Court, at the suit of the original owner or his agent, be restored. This is not to hold, however, when the ship is brought into the realm without due notice of the unlawful fitting out of the capturing vessel. The other is that no vessel of a bel

* We remark in another place on this exception, as it appears in the foreign enlistment act of 1870. It greatly injures the law.

ligerent, built, equipped, fitted out, armed, or despatched contrary to the act, shall in the time of war be admitted into any British port.

Mr. Vernon Harcourt dissented from this report, as it respects the building of vessels. A law, constituting this, under the conditions supposed, a misdemeanor, would, he thought, be difficult of execution; would impose a new responsibility by its non-execution; would be odious within the country, and if not executed, give just ground of complaint to foreigners; and would put the trade of the country at an uncalled for disadvantage. A foreigner is unable to see the great benefit of building ships of war within any given jurisdiction, especially if a license is to be purchased for this by paying fifteen and a half million of dollars. And if a ship of war cannot legally be dispatched, why allow it to be built, unless for the purpose of putting a temptation to commit a misdemeanor before the righteous soul of a shipbuilder of Birkenhead.*

Other persons who were consulted by the commission, expressed very strict notions of the duties of neutrals. Sir Robert Phillimore would be expected to do this, in regard to munitions of war obtained by a belligerent within a neutral territory, since in his commentaries (iii, § 230, 233) he had a number of years since advanced the same opinion. He says that "in the memoire justificatif [i. e., the memorial written by Gibbon, the historian], it will be seen that England then considered that the permission, accorded by the French government for the export of munitions of war from French ports to the revolted colonies, was one justifying cause of the war which England had declared against France." And although a neutral may be impartial in allowing both belligerents to supply themselves with the means of mutual destruction within the neutral territory, yet the theoretically equal permission to both belligerents may be practically illusory and false. He adds, that to such a degree "may the advantage of this permission preponderate in favor of one belligerent over the other," "that it may be a necessary measure of

* For a good suggestion made by the same gentleman, in regard to ships taking commissions on the high seas, see pp. 299-300, infra.

defence on the part of one belligerent to make war upon the country which supplies his adversary with the means of prolonging the contest."

Another eminent legal gentleman, Mr. Rothery of Doctor's Commons, goes still farther in his view of what neutrals owe to their position of neutrality. He raises the question, whether it would not be expedient to prohibit altogether the building of ships of war by private shipbuilders, without the express permission of the government. He would have not only the building of ships made illegal without such sanction, but the export also of munitions of war to the belligerents, "and possibly also, and within certain conditions, the precarious and demoralizing trade of blockade running." He would allow the diplomatic agent of a friendly State, equally with the government, to initiate in the Court of Admiralty proceedings under the neutrality laws; and, lest this should be objected to as a great power given to an agent of a foreign State, he remarks that, "the same power is given to a common seaman whose wages exceed fifty pounds, to any person who has rendered service, in the nature of salvage, to a ship, and to any person who has sustained loss or injury by a collision with a ship." Still further, in the case of a vessel of war escaping from a British port, whether fully equipped for war or not, and thereupon commencing depredations on the commerce of a friendly State, he proposes, if she should receive a commission, to regard this as a proof, that the State which had commissioned her connived at her violation of neutrality, had knowingly violated a neutral sovereign's rights, and had in the transaction made Great Britain a base of operations against its enemy. There would then be a perfect right to demand satisfaction for the outrage; to demand that the vessel should be restored to British jurisdiction; to refuse it admission into British waters, and to lay hands on it, if it voluntarily came thither. "The fact of the violation of neutral rights by its escape, would be a warrant for its condemnation; the ship would have been ipso facto forfeited to the neutral State, and would remain so forfeited, into whosesoever hands it passed. To hold that its character would be purged by the completion of the voyage or by its being taken into the service of the bellig

erent, is founded on entire misapprehension," he thinks;—" it is the belligerent who has committed the offence, and it does not rest with him to condone it."

This opinion favors a stricter neutrality than most persons, even in this country, would be willing to advocate, especially in the matter of furnishing munitions of war to belligerents; but if it is not in that point conformable to the law of nations, we believe that the law of nations would be improved by being made to conform to the opinion.*

The report of the neutrality commission was not acted upon in Parliament until the year 1870, and a law founded on it was. passed, August 9, at the time when Prussian armies were on their victorious march into France. It is a great improvement on the old law, but in exempting any commissioned ship, of any foreign State or body invested with belligerent power, from forfeiture for violating its provisions, may prove a source of new difficulties hereafter.

A few months after this the proposal was made by the British government to that of the United States, to appoint a Joint High Commission for the purpose of settling the questions that had arisen, respecting the fisheries on the coasts of British America, as well as all those which affected the relations of the United States toward her Majesty's possessions in that part of the world. The United States modified this proposition, so as to include the claims generically known as the Alabama claims; the enlarged plan of work for the High Commission was accepted, and out of this grew the treaty of Washington.

It was originally hoped that the two powers might come to some understanding, within the Commission itself, about the claims just spoken of, without resorting to further measures; but this was found to be impossible, and so resort was had to an arbitration, which was to be guided in its judgments by. three important rules laying down the duties of neutral States, and by other principles of international law not inconsistent with them. The offer of arbitration came from the British Commissioners, the three rules from the American.

of

This plan of arbitration was hailed with joy by all lovers peace, and many seemed to feel that it betokened a new era

*Comp. New Englander, for July, 1869, p. 619.

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