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next meeting of the arbitrators you stated that that "declaration made by the tribunal, individually and collectively," * * * was "accepted by the President of the United States as determinative of their judgment upon the important question of public law involved."
Entry of judgment
At the next meeting, the agent of Her Britannic Majesty read a statement that Her Majesty's government, being informed of on the indirect claims. the statement made by you at the previous meeting, assumed "that the arbitrators will, upon such statement, think fit now to declare that the said several claims are, and from henceforth will be, wholly excluded from their consideration, and will embody such decla ration in their proctocol of this day's proceedings;" which declaration, at this request of the agent of the British government, was made, thus excluding, by the act of the tribunal, from future consideration claims which, until then, had been the subject of controversy. This conclusion may be regarded as decisive of the non-admissibility of claims for such remote or consequential losses as the foundation of a demand for compensation in damage as between nations, under the principles of international law. These controverted claims being thus eliminated, the tribunal proceeded to the consideration of the other claims, and of the case, counter case, and arguments on either side, and on the 14th of September declared that Great Britain had, with respect to three of the vessels and four of their tenders, of which complaint had been made, failed to fulfill duties toward this Government, and awarded the payment to the United States of the sum of $15,500,000 in gold, as the indemnity to be paid by Great Britain to the United States for the satisfaction of all the claims referred to the consideration of the tribunal.
Effect of this judgment.
The award of the tribunal.
The dignity, imparti
Your report bears testimony to the high character, the patient labor, the learning, impartiality, and dignity of bearing of the ality, and bearing of the eminent persons named as arbitrators by the friendly pow by Italy, Switzerland, ers which complied with the joint request of this Government and that of Her Britannic Majesty.
Mr. Adams receives
Mr. Adams, on this as on all occasions of his public service, fulfilled the expectations to which his appointment gave rise. It is tanne Majesty and of gratifying to know that his course, and the ability displayed by him, have received the acknowledgment of Her Majesty's government, to which the President has united his acknowledgment. I find on reference to the protocol No. 32, accompanying your report, and containing a record of the proceedings of the tribunal opinions of Sir Alex of arbitration on the 14th of September, that after the signature of the decision and award of the tribunal by the four assenting arbitrators, and after the same had been delivered to the agents of the two governments, Sir Alexander Cockburn, the arbitrator named on the part of Great Britain, having declined to assent to that decision, made a statement of his own, which the tribunal ordered to be recorded as an annex to the protocol.
read or made known to
It does not appear by the protocol that the document which was thus opinion not ordered to be annexed was read at the time. Indeed, your his colleagues, report on the subject shows that that paper was presented at the last moment of the final sitting of the tribunal, and that the contents thereof were not made known to the other members of the tribunal or to the agent or counsel of the United States.
I cannot doubt that if you had had the opportunity to become ac quainted with the contents of this extraordinary document should have tesnob you would have felt it your right and duty to object to the reception and filing of a paper which would probably not
If the contents had been known it jected to.
have been officially received by the tribunal had an opportunity been afforded to invite their attention to some of its reflections on this Government, its agent, and counsel.
It is not my intention to discuss or to comment upon the tone and character of this very remarkable paper, professedly submitted to one of the highest tribunals the world has witnessed, sitting to decide some of the gravest and most important questions ever submitted to peaceful decision.
But in this paper (which is officially, published in a supplement of the London Gazette, dated September 24, 1872) Sir Alexander Sir A. Cockburn proCockburn professedly and avowedly speaks of himself on two occasions as "sitting on this tribunal as in some sense Great Britain. the representative of Great Britain."
fesses to speak as the representative of
The Government of the United States here has no occasion to pass judgment on this attitude of the arbitrator named by Great Britain. I take the fact as I find it. I perceive that Sir Alexander Cockburn, while advancing as public law opinions which are "published by authority" of the British government, professes to be in some sense the representative of that government. It is in this sense that he speaks in the expression of his reasons for dissenting from the decision of the other members of the tribunal, and, therefore, the Government of the United States may rightfully take him at his word as speaking for Great Britain.
The positions which he thus maintains in behalf and as the representative of his government deserve to be noted for their value in possible future questions.
Resume of the positions he maintains as the representative
He holds that whatever restrictions the neutral in the of Great Britain. exercise of his territorial rights imposes on the one belligerent, he must impose on the other also.
As the discussion grows out of the case in which one of the belligerents is a legitimate Government, in treaty-amity with the neutral, and the other a rebel in arms against that legitimate Government, it is to be assumed that the proposition applies with especial force to such a case.
He maintains as a rule that the government of a country can only be held responsible for the breaches of neutrality committed by its subjects when it may reasonably be expected to prevent them. Such a rule seems to favor neutral right in the same degree that it diminishes neutral obligation, which it measures by the vague standard of what is reasonable.
He maintains the right of the subjects of a neutral to supply to the belligerent any objects available for warlike purposes, including as well ships of war (even armed ships) as arms and munitions, provided the same be done animo commercandi and not animo adjuvandi.
A rule so unqualified, and subject only to the belligerent right of blockade and of capture for contraband, is a very broad assertion of neutral right.
In discussing the question of due diligence, and doing so with the actual case in his mind, he reduces as far as he may the standard of diligence in favor of the neutral.
He insists on the right of the neutral when called upon to restrain its subjects to proceed in conformity with the spirit of its legal institutions, according to its established system of official routine, with such legal advice as the government is accustomed to receive.
He maintains that the neutral government is not to be held responsible for error in judgment, nor for declining to seize a vessel at the instance of the belligerent on merely suspicious circumstances, seemingly
inadequate to convict, nor for miscarriage of justice through some mistake of the courts, nor for error of judgment on the part of subordinate officers of the government.
His views relative to the alleged unfriendliness of the British minister toward the United States and that of the British subjects and colonies, amounts to complete justification of any degree of sympathy on the part of the authorities or subjects of a neutral government in favor of the rebels of any other government, and tends to exonerate governments and subjects alike from any obligation of good-will toward a treaty friend, the suffering legitimate Government.
His conclusions on the question of recognition of belligerency ac corded to rebels in arms preclude any possible exception on the score of prematureness or other circumstances.
His response to the allegation in the case of the United States, that Great Britain, including her colonies, was the arsenal, the navy-yard, and the treasury of the insurgents, assumes that on recognition of the belligerency of rebels they became possessed of equal right with the legitimate Government in the ports of the neutral. And yet the coucession of belligerency to insurgents does not, in his view, give to the legitimate Government any cause of complaint against the neutral gov ernment.
He unequivocally justifies the use of the ports of the Bahamas and of Bermuda as entrepôts for blockade-running cargoes, and the transshipment of the latter into lighter craft, thus favoring neutral right and protecting the exercise of that right in a manner most favorable to a feeble belligerent, and especially to insurgents as against their govern
He maintains the right of the neutral government to abstain from the exercise of spontaneous activity for the repression of attempts of its subjects to violate neutrality, and to require the representative of a belligerent power asking the aid of the government to make out a case for the application of the law, just as it is left to do to an ordinary individual who desires to put the laws in motion in order to obtain redress in his own behalf.
There are other assertions of important neutral right, but these are among the most important. They seem all to be available in a possible future to the United States. They are announced by the "representative" of the British government in the tribunal at Geneva, and are "published by authority" of that government, without dissent or quali fication.
Effect of this con
It is not my present purpose to discuss these various positions. Some of them are in evident conformity with the views of public troversy in defining policy hitherto expressed or practiced by the United States, obligations. but not always admitted by Great Britain, while some of them are in qualification, if not in substance, the result of modern events, and especially of recent controversy between the United States and Great Britain. It needs but the most cursory glance at the mass of correspondence and of other documentary matter submitted to the tribunal of arbitration to see how thoroughly the remonstrances and protestations of the Government of the United States against the conduct of Great Britain have quickened and stimulated the European, and above all the British, mind into more careful examination and more complete perception of the rights and obligations of neutral powers, for the question of rights is inseparable from that of obligations. In every case of war we have to consider alike what are the rights of the neutral as against both belligerents, and what are its
duties as respects either belligerent. In effect, the occurrence of war between any two powers involves more or less modification of the freedom of action of the neutral, either by land or by sea. But freedom of action is the general right of every sovereign power, although in time of war such power yields a portion of its freedom, that is, of its general right, to the just demand of one or the other of the belligerents. It should be expected to yield the least possible of that general freedom that will allow it to be neutral in fact, for this constitutes the obligation of the neutral. On the other hand, each belligerent is entitled to demand of the neutral in profession that it should be neutral in fact. The United States have had occasion to look practically at both sides of the question, and therefore sometimes to assert neutral duties, while more generally asserting neutral rights and the policy of peace, to such extent and under such circumstances as to have rendered the United States the champion of neutral rights, and thus by moral influence to have acted potentially on the course of events in Europe.
History repeats itself.
I cannot err, therefore, in thinking it important to note memory the positions in this respect maintained by the "representative" of the British government at Geneva, and that representative the Lord Chief Justice of England. I am, sir, your obedient servant,
Hon. J. C. BANCROFT DAVIS,
de., &c., dc.
The importance of the representative of the British government.
noting the views of
VI.-REPORT OF THE COUNSEL OF THE UNITED STATES.
WASHINGTON, November 25, 1872. (Received November 26.) SIR: We have the honor to report that, in conformity with your instruction of the 8th of December, 1871, we repaired to Europe at as early a day thereafter as possible, in the discharge of our duty as counsel of the United States before the tribunal of arbitration established by the treaty of Washington.
While occupied in the preparation of the Counter Case of the United States and of the general argument, in their behalf, we found it advantageous to dwell in Paris for convenience of access to books of diplomacy and jurisprudence, and also of ready communication with London and with Washington.
In June we proceeded to Geneva, and continued there until the close of the proceedings before the arbitrators, occupied in constant attendance on them, and in the preparation and presentation of various additional arguments in response to such arguments as had been specifically required of Great Britain by the tribunal. We refer the Department to the Counter Case and documents accompanying the same, to the main argument in behalf of the United States, to the successive subsequent arguments, and to the correspondence of the agent of the United States, for complete information regarding our acts as counsel for the Government.
In now terminating our connection with this great international cause, we beg to be allowed to express the hope that the President will see in the final award of the tribunal proof that we have not been wanting to the important trust which he confided to us.
And we remain, &c.,