« iepriekšējāTurpināt »
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.
4. SUPPLIES OF COAL.
It was maintained in the American Case that the proofs showed that the insurgent cruisers were permitted to supply themselves with Supplies of coal. coal in British ports in greater quantities and with greater Position 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 that-
In order to impart to any supplies of coal a character inconsistent with the second rule, prohibiting the use of neutral ports or waters, as a base of naval Decision of the operations for a belligerent, it is necessary that the said supplies should tribunal. 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 illegal 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 place."
Mr. Adams says:
Views of Mr.,
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 Adams. 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:
Views of Conat Sclopis.
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 country constitutes in itself a sufficient grievance to call for an indemnity. As the lord chancellor 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 not of itself constitute a sufficient basis for accusing the British authorities of having failed in their duties as neutrals, because the fact cannot be considered by itself, since the Sumter both before and after that
Views of Mr. Stampfl
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
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 her crew which took place.
Views of Viscount d'Itajuba
The Viscount d'Itajuba, at the thirty-first conference, while signing the decision, remarked with regard to the recital concerning 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.
Municipal laws of
5. THE MUNICIPAL LAWS OF ENGLAND.
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 deficiencies in any internal legislation enacted for the purpose of enabling the government to fulfill its international duties.
eet up in justification,
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 tribunal pass the
Nashville, &c., not
6. THE SUMTER, THE NASHVILLE, &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 withstanding British claims growing out of the acts of the Florida, the Alabama, objections. the Georgia, and the Shenandoah, 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 and 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.
Sir A. Cockburn's 7, THE DISSENTING OPINION OF SIR A. COCKBURN.
He is the repre
The frankness with which Sir Alexander Cockburn confesses in this. opinion that he sat on the Tribunal, not as a judge, but as, sentative of Great"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.
His charges against the American coun
The chief justice calls legal propositions made by General Cushing, Mr. Evarts, and Mr. Waite, over their signatures and under the responsibility of counsel, "strange misrepresentations," and "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 argument "an extraordinary series of propositions," and "the most singular confusion of ideas, misrepre
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."
No opportunity of
I need not assume in the United States to vindicate the accuracy of statements or the soundness of reasonings which have the They need no vinguarantee 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 had fered 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 respecting 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.”
He charges case with abuse and hostility.
The British arbitrator also charges that the Case of the United States "pours forth the pent-up venom of national and personal hate." He speaks of the "abuse" it "freely bestows," and complains of the "hostile and insulting tone thus offensively and unnecessarily adopted toward Great Britain, her statesmen, and her
These charges appear to be founded upon the proof of the desire of various members of the British government for the success
The reason for
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 Geneva.
the American case
A complete vindication of the line of argument in the Case (if any were needed) could be drawn from Sir Alexander Cock- The justice of the burn's paper. "There can be no doubt," he says, "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 have 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 admitted to be just.
If I argued that these acts of individual members of the British govLord Russell us ernment were inconsistent with the "due diligence" required by the treaty, I did only what Lord Russell had said to Mr. Adams must be the inevitable result of an arbitration. "Have the British government acted with due diligence, or, in other words, with good faith and honesty ?" was the question by which he said the liability of England was to be determined.
If I urged that, in any instance, the neutrality of Great Britain was Lord Westbury not sincere, I did but pursue the line of argument which Lord Westbury had defended in advance in the House of Lords, and I did it nearly in his own language.
I find no fault that Sir Alexander Cockburn does not agree with me, and with most of the world outside of England, as to the force of the evidence which was presented respecting these points. That is a subject on which persons may honestly differ. But I must be permitted to express some surprise that a lawyer of his deservedly great reputation should have made such a disagreement the cause of totally unfounded allegations against the Case of the United States and its author.
With the exception of these personal remarks, this long dissenting opinion (twice the length of the American case) adds little or nothing new to the arguments previously put forth by Great Britain in vindication of her course toward the United States. There are several material errors in its statements of facts, but I shall not follow its example of injustice in attributing them to design. All right-thinking persons will heartily echo the wish with which the paper closes, "that in the time to come no sense of past wrong unredressed will stand in the way of the friendly and harmonious relations which should subsist between two great and kindred nations."
of the policy of
Thus, surrounded by difficulties, which at one time seemed insuperable, this great cause has reached its conclusion. Nations have, ere now, consented to adjust by arbitration questions of figures and The results of the questions of boundaries; but the world has had few, if any, tribunal and earlier examples of the voluntary submission to arbitration of a question in which a deep-seated conviction of injuries and wrongs which no possible award could compensate, animated a whole nation. It is out of such sentiments and feelings that wars come. The United States elected the path of peace. Confident of receiving justice, they laid the story of their wrongs before an impartial tribunal. This story, so grievous in its simple truthfulness, threatened for a time to break up the peaceful settlement which the parties had promised each other to make. Notwithstanding all obstacles, however, the great experiment has been carried to a successful end; and hereafter it cannot be denied that questions involving national sentiment may be decided by arbitration, as well as questions of figures.
The commander who had been permitted, by Providence, to guide some of the greatest military events in history, has thus, in civil life, assisted in presenting to the nations of the world the most conspicuous example of the settlement of international disputes by peaceful arbitration.
It is within my personal knowledge that your own counsels have also had a large share in shaping this great result.
I have, &c.,
Hon. HAMILTON FISH,
Secretary of State.
J. C. BANCROFT DAVIS.
II.-PROTOCOLS OF THE CONFERENCES OF THE ARBITRATORS..
Record of the proceedings of the tribunal of arbitration under the provisions of the treaty between the United States of America and Her Britannic Majesty, concluded on the 8th of May, A. D. 1871, at the first conference held at Geneva in Switzerland, on the fifteenth day of December, in the year of our Lord one thousand eight hundred and seventy-one.
The conference was convened at the Hôtel de Ville at Geneva, in compliance with notices from Mr. J. C. Bancroft Davis, agent of the United States, and Lord Tenterden, agent of Her Britannic Majesty, in the form following:
The undersigned having been appointed agent of the United States to attend the tribunal of arbitration about to be convened at Geneva under the provisions of the treaty between the United States and Great Britain of the 8th delivery of cases. of May last, has the honor to acquaint Count Sclopis that it is proposed by the Government of the United States that the first meeting of the tribunal should be held at Geneva, if not inconvenient to the arbitrators, on the 15th instant.
J. C. BANCROFT DAVIS.
The arbitrators who were present and produced their respective powers, which were examined and found to be in good and due form, were: Charles Francis Adams, esquire, the arbitrator named by the President of the United States of America; the Right Honorable Sir Alexander Cockburn, the Lord Chief Justice of England, the arbitrator named by Her Britannic Majesty; his excellency Count Sclopis, the arbitrator named by His Majesty the King of Italy; Mr. Jacques Stampfli, the arbitrator named by the President of the Swiss Confederation, and his excellency the Baron d'Itajubá, the arbitrator named by His Majesty the Emperor of Brazil.
J. C. Bancroft Davis, Esquire, attended the conference as the agent of the United States; the Right Honorable Lord Tenterden attended as the agent of Her Britannic Majesty.
Mr. Adams proposed that Count Sclopis, as being the arbitrator named by the power first mentioned in the treaty after Great Britain and the United States, should preside over the labors of the tribunal.
The proposal was seconded by Sir Alexander Cockburn, and was unanimously adopted, and Count Sclopis, having expressed his acknowledgments, assumed the presidency.
On the proposal of Count Sclopis the tribunal of arbitration requested the arbitrator named by the President of the Swiss Confederation to recommend some suitable person to act as the secretary of the tribunal. The Swiss arbitrator named M. Alexandre Favrot as a suitable person, and M. Alexandre Favrot was thereupon appointed by the tribunal of arbitration to act as its secretary during the conferences, and entered upon the duties of that office.
Mr. J.C. Bancroft Davis then presented in duplicate, to each of the arbitrators and to the agent of Great Britain, the printed case of the United