Lapas attēli

Views of Count Scloris.

subject to all ordinary international obligations; and it is firmly persuaded that there is no state in Europe or America which would be willing to claim or accept any immunity in this respect, on the ground of its inferiority to others in extent, inilitary force, or population.

Count Sclopis, in his opinion, says: The words due diligence necessarily imply the idea of a relation between the duty and its object. It is impossible to define a priori aud abstractly an absolute duty of diligence. The thing to which the diligence relates determines its degree. As to the measure of activity in the performance of the duties of a neutral, I think the following rule should be laid down; that it should be in a direct ratio to the actual danger to which the belligerent will be exposed through the laxity of the neutral, and in an inverse ratio to the direct means which the belligerent can control for averting the danger.

The Tribunal, in its award, says:

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.

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 duties involved in the proclamation of peutrality issued by Her Majesty, on the 13th of May, 1861.

Decision of the tri




Infrieudliness of


View of Count


Count Sclopis says, respecting this point: The British government was fully informed that the confederates bad established in England a branch of their means of attack and defense against the United States. Commissioners representing the government of Richmond were domiciled in London, and bad put themselves in communication with the English government. Lord Russell had received these confederate representatives in an unofticial way. The first visit took place on the 11th of May, 1861, that is to say, three days before the Queen's proclamation of neutrality, and four days before Mr. Adams arrived in London as the minister of the United States. And further, the English government could not but know that great commercial houses were managivg the interests of the confederates at Liverpool, a town which, from that time, was very openly pronounced in favor of the South. In Parliament itself opinions were before long openly expressed in faror of the insurgents. The Queen's ministers themselves did not disguise that in their opinion it would be very difticult for the American Union to re-establish itself as before.

It results from this, in my opinion, that the English government found itself, during the first years of the war of secession, in the midst of circumstances which could not but have an influence, if not directly upon itself, at least upon a part of the population subject to the British Crown. No government is safe against certain waves of public opinion, which it cannot master at its will. I am far from thinking that the animus of the English government was hostile to the Federal Government during the war. Yet there were grave dangers for the United States in Great Britain and ber colonies which there were no direct means for averting. England therefore should have fulfilled her duties as a neutral by the exercise of a diligence equal to the gravity of the danger.

It cannot be denied that there were moments when its watchfulness seemed to fail and when feebleness in certain branches of the public service resulted in great detriment to the United States.

Viscount d'Itajuba has not placed on record his opinion on this subject, unless it can be gathered from a single passage in his remarks upon the effect of a commission on an offending cruiser, when he says, "By seizing or detaining the vessel the neutral only prevents the belligerent from deriving advantage from the fraud committed within its territory by the same belligerent; while, by not proceeding against a guilty vessel it exposes itself to having its good faith justly called in question by the other belligerent."

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Views of Viscount de 'Itajubas

Views of Adams

It would seem from some of Mr. Adams's expressions that he did not

Mr. concur in these views of his colleagues. While regretting

that he did not do so, because the views seem to me to be in accordance with the facts, and also in accordance with general principles which all maritime powers would desire to maintain, I must bear

testimony to the perfect and dignified impartiality with

which, not only in this respect, but throughout the proceedings, Mr. Adams inaintained his position as a judge between the two contending nations. Of bim, at least, it may be said that his love of country never controlled his sense of justice, and that at no time did he appear as an advocate.

His impartiality.




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Position of United States


British position.

American rejoinder.

Views of Viscount

It was maintained in the American Case that, by the true construction of

the second clause of the first rule of the treaty, when a vessel like the Florida, Alabama, Georgia, or Shenandoah, which has been especially adapted within a neutral port for the use of a

belligerent in war, comes again within the neutral's jurisdiction, it is the duty of the neutral to seize and detain it. This con

struction was denied by Great Britain. It was maintained

in the British papers submitted to the tribunal, that the obligation created by this clause refers only to the duty of preventing the original departure of the vessel, and that the fact that the vessel was, after the original departure from the neutral port, commissioned as a ship of war protects it against detention. To this point we rejoined that a commission is no protection against

seizure in such case, and does not operate to release the neutral from the obligation to detain the offender.

The Viscount d'Itajuba seemed to favor the American

construction. He said: According to the latter part of the first rule of Article VI of the Treaty of Washington, the neutral is bound also to use due diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, (viz, against a belligerent, ] such vessel having been specially adapted, in whole or in part, within its jurisdiction to warlike use.

If, then, a vessel built on neutral territory for the use of a belligerent, fraudulently and without the knowledge of the neutral, comes again within the jurisdiction of the sovereign whose neutrality it has violated, it ought to be seized and detained.

Count Sclopis says, on this point: It is on the nature of these special circumstances that the first rule laid down in Article VI of the Treaty of Washington specifically rests. The operation of that rule would be illusory, if it could not be applied to vessels subsequently commissioned. The object in view is to prevent the construction, arming, and equipping of the vessel, and to prevent her departure when there is sufficient reason to believe that she is intended to carry on war on behalf of one of the belligerents; and when probability has become certainty, shall not the rule be applicable to the direct and palpable coasequences which it originally was intended to prevent ?

In the award the Tribunal says that-
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 bave granted to that vessel ; and the ultimate step by which the offense is completed cannot 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. The privilege of exterritorality, ac

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Decimion tribunal

corded 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 principles 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.

It will be observed that the Tribunal, instead of adopting the recognition by the Viscount d’Itajuba of a positive obligation on the part of the neutral to detain the vessel, in the case supposed, limited itself to expressing the opinion that, in such case, the neutral would have the right to make such detention.



L'nited States.

It was maintained in the American Case that the proofs showed that the insurgent cruisers were permitted to supply themselves with coal in British ports in greater quantities and with greater patron of the freedom, and with less restrictions than were imposed upon the United States; and it was insisted that, in consequence of these facts, there was an absence of neutrality, which made those ports bases of hostile operations against the United States under the second rule of the treaty:

On this point the award says thatIn order to impart to any supplies of coal a character inconsistent with the secon« 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.

It does not appear by the terms of the award that Great Britain is held responsible for the acts of any vessel solely in consequence of ille. gal supplies of coal. The question is, therefore, a speculative one, so far as relates to this controversy. The opinions of the four arbitrators who signed the award furnish, however, the explanation of what they mean when they speak of “special circumstances of time, of persons, or of

Derson of tribunul.


View of Mr.

V.Ws of Connt Sclopis

Mr. Adams says:

I perceive no other way to determine the degree of responsibility of a neutral in these cases, than by an examination of the evidence to show the intent of the grant in any specific case. Fraud or falsehood in such a case poisons everything it touches. Even indifference may degenerate into willful negligence, and that will impose a burden of proof to relieve it before responsibility can be relieved.

Count Sclopis says:

I will not say that the simple fact of having allowed a greater amount of coal than was necessary to enable a vessel to reach the nearest port of its conntry constitutes in itself a sufficient grievance to call for an indemnity. As the lord chandellor of England said on the 12th of June, 1871, in the House of Lords, England and the United States equally hold the principle that it is no violation of the law of nations to furnish arms to a belligerent. But if an excessive supply of coal is connected with other circumstances which show that it was used as a veritable res hostilis, then there is an infraction of the second article of the treaty. Thus, for example, when I see the Florida and the Shenandoah choose for their fields of action, the one the stretch of sea between the Bahama archipelago and Bermuda, to cruise there at its ease, and the other Melbourne and Hobson's Bay, for the purpose immediately carried out, of going to the Arctic Seas, there to attack the whaling vessels, I cannot but regard the supplies of coal in quantities sufficient for such services, infractions of the second rule of Article VI.

Mr. Stämpfli says of the Sumter:

The permission given to the Sumter to remain and to take in coal at Trinidad does pot of itself constitute a sufticient basis for accusing the British authorities of having failed in their duties as neutrals, because the fact can- Stampila not be considered by itself, since tlie Sumter both before and after that

Views of Mr.

time was admitted into the ports of many other States where it staid and took in coal

so that it cannot be held that the port of Trinidad served as a base of operations.

But of the Shenandoah he says: A supply of coal was not a necessary condition of neutral asylum, and in supplying her with so large a quantity of coal, the capacity of the ship for making war was increased just as much as by the recruitment of ber crew which took place. The Viscount d'Itajuba, at the thirty-first conference, while signing

the decision, remarked with regard to the recital concern

ing the supply of coals, that he is of the opinion that every government is free to furnish to the belligerents more or less of that article.


View of Viscount d'Itajuba

Municipal laws of



It was maintained in the American Case that the liability of Great Bri

tain should be measured by the rules of international law; and England cannot be that it could not be escaped by reason of any alleged defi

ciencies in any internal legislation enacted for the purpose of enabling the government to fulfill its international duties.

The pleadings and arguments on the part of Great Britain are filled with denials of this proposition in every possible way, from the opening Case to the last supplemental argument of Sir Roundell Palmer.

The award says, "the government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the insufficiency of the legal means of action which it possessed."


The tribuna pass

on the Nuhville, &c.


It was maintained in the American Case that, under the terms of the

treaty of Washington the parties had agreed to submit to Sumter the decision of the tribunal of arbitration, not only the uithoutanding British claims growing out of the acts of the Florida, the Alabama,

the Georgia, and the Shenandoal, which originally proceeded from ports of Great Britain, but also all claims growing out of the acts of other cruisers, such as the Nashville, the Sumter, &c., which could in any way be shown to have used British ports as bases of supplies. The British Case aud Counter Case strenuously contended that the submission was limited to the four vessels first above named. The tribunal unanimously, including Sir Alexander Cockburn, took no notice of this claim of Great Britain, and considered all the claims presented and decided them upon their merits. - A Cockburn's 7. THE DISSENTING OPINION OF SIR A. COCKBURN. The frankness with which Sir Alexander Cockburn confesses in this

opinion that he sat on the Tribunal, not as a judge, but as, eta we upo Corrie in some sense the representative of Great Britain," one of the

parties to the controversy, places before the world the knowledge of a fact of which, otherwise, it would have been better to take no public notice. The chief justice calls legal propositions made by General Cushing, Mr.

Evarts, and Mr. Waite, over their signatures and under the the American coun: responsibility of counsel, strange misrepresentations," and

6 assertions without the shadow of a foundation.” He says that “their imaginations must have been lively, while their consciences slept.” He finds in a portion of their arguments an extraordinary series: of propositions," and "the most singular confusion of ideas, misrepre

disyenting opinion.

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He charges the case witli abuse and hostility.

sentations of facts, and ignorance both of law and history, which were, perhaps, ever crowded into the same space.” He calls the part of their argument on which he was commenting, “ an affront offered to this tribunal, by such an attempt to practice on our supposed credulity or ignorance," and says that he is at a loss to understand how counsel, familiar with English law, can take upon themselves to make statements of this sort."

I need not assume in the United States to vindicate the accuracy of statements or the soundness of reasonings which have the guarantee of the names of our distinguished counsel. The dication charges are sanctioned by the chief justice alone. I have no hesitation in expressing my conviction that they would have been indignantly repudiated by each and all of his colleagues bad frred to consider the the paper in which they are made been publicly read, or had its contents been made known at the time when the Tribunal ordered it to be recorded. This voluminous paper was, in fact, not read in the Tribunal; its author presented it in bulk without any statement respect. ing its character; no one had any reason to imagine its contents; and it was not made public until several days after the dissolution of the Tribunal and the separation of its members. As Sir Alexander Cockburn says of the charges of unfriendliness which were made in the American Case against members of Lord Palmerston's cabinet, “The world must judge between the accusers and accused.”

The British arbitrator also charges that the Case of the United States "pours forth the pent-up venom of national and personal bate." He speaks of the "abuse” it “freely bestows,” and complaius of the "hostile and insulting tone thus offensively and unnecessarily adopted toward Great Britain, her statesmen, and her institutions."

These charges appear to be founded upon the proof of the desire of various members of the British government for the success of the insurgents in the South, taken from the mouths of those charges. the speakers and presented for the consideration of the Tribunal, and upon the legitimate application which was made of that proof in the issue respecting “due diligence” which was pending before the tribunal at Genera.

A complete vindication of the line of argument in the Case (if any were needed) could be drawn from Sir Alexander Cockburn's paper. “There can be no doubt,” he says, 6 that line of argument in these speeches not only expressed the sentiments of the admitted. speakers, but may be taken to be the exponent of the sentiments generally entertained at that time;" and he adds, “though partiality does not necessarily lead to want of diligence, yet it is apt to do so, and in case of doubt would turn the scale.” With such an admission as this, it is surprising that a man of the robust sense of the chief justice should hare reproduced the rash imputations of the British press.

That I charged individual members of Lord Palmerston's cabinet with a partiality for the insurgents, is true; equally true is it that I supported the charge by proof from their own lips.

But I never questioned their right to entertain such partiality, or to express it in any manner that suited them. I never even assumed to criticise its justice before a tribunal created to try other issues. I confined myself strictly to the issues before that body, and I argued that this partiality of individual members of the government would be apt to lead to want of diligence, and in case of doubt would turn the scalea line of argument which is now aclmitted to be just.




The justice of the

the American case

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