Annex 2. Reasons of Sir Alexander Cockburn for dissenting from the THE indirect claims at first insisted on by the Government of the United States eing now out of the question, we have to deal with the claims for damages, "growing ut of the acts" of certain specified vessels, as to which it is alleged that, by reason of ome default on the part of the Government of Her Majesty the Queen of England, hese vessels were enabled to take and destroy ships and cargoes belonging to citizens f the United States. The causes of complaint put forward by the United States' Government may be lassed under the following heads: 1. That by reason of want of due diligence on the part of the British Government, essels were allowed to be fitted out and equipped, in ports of the United Kingdom, 1 order to their being employed in making war against the United States, and having een so equipped, were allowed to quit such ports for that purpose. 2. That vessels, fitted out and equipped for the before-mentioned purpose, in ontravention of the Foreign Enlistment Act, and being therefore liable to seizure under hat Act, having gone forth from British ports, but having afterwards returned to hem, were not seized as they ought to have been, but having been allowed hospitality 1 such ports, were suffered to go forth again to resume their warfare against the ommerce of the United States. 3. That undue favour was shown in British ports to ships of war of the Conederate States, in respect of the time these ships were permitted to remain in such orts, 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 ase 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 ere enabled, it is alleged, to do damage to the commerce of the United States; and ompensation is claimed in respect of the damage so done. The Treaty of Washington, from which our authority is derived, lays down, for our uidance in dealing with and deciding on these claims, certain rules as to the ligations of Great Britain as a neutral State, which for the purpose of this bitration are to be taken to have been binding on it. Not, indeed, that the British Government admits that these rules form part of e law before existing between nations. On the contrary, it is expressly stated that Her Britannic Majesty has commanded Her High Commissioners and Plenipotentiaries declare that Her Majesty's Government cannot assent to the foregoing Rules as a atement of principles of international law which were in force at the time when the aims mentioned in Article I arose, but that Her Majesty's Government, in order to ince its desire of strengthening the friendly relations between the two countries, and making satisfactory provision for the future, agrees that, in deciding the questions tween the two countries arising out of those claims, the Arbitrators should assume at Her Majesty's Government had undertaken to act upon the principles set forth in ese Rules. And the High Contracting Parties agree to observe these Rules as tween themselves in future, and to bring them to the knowledge of other maritime owers, 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 Causes of complaint brought forward by the United States. Rules of the Difficulty arising from the Treaty. within its jurisdiction, of any vessel which it has reasonable ground to believe i intended to cruize or to carry on war against a Power with which it is at peace; an also to use like diligence to prevent the departure from its jurisdiction of any vess intended to cruize 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 r 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 al persons within its jurisdiction, to prevent any violation of the foregoing obligations! and duties."* With these Rules before it, the Tribunal is directed to determine, as to each vesse "whether Great Britain has, by any act or omission, failed to fulfil any of the duties. set forth in such Rules, or recognized by the principles of international law not incon sistent with such Rules." The effect of this part of the Treaty is to place this Tribunal in a position of som difficulty. Every obligation, for the non-fulfilment of which redress can be claime presupposes a prior existing law, by which a right has been created on the one sid and a corresponding obligation on the other. But here we have to deal with obligation assumed to have existed prior to the Treaty, yet arising out of a supposed law created fo the first time by the Treaty. For, we have the one party denying the prior existence 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 a 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 k decided according to the true principles and rules of international law in force an binding among nations, and the duties and obligations arising out of them, at the tim when these alleged causes of complaint are said to have arisen. b 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, t arbitration; but the Commissioners of the United States refused to "consent t submit the question of the liability of Great Britain to arbitration unless the principle which should govern the Arbitrator in the consideration of the facts could be fir agreed upon." In vain the British Commissioners replied that they "should willing to consider what principles should be adopted for observance in future, br that they were of opinion that the best mode of conducting an arbitration was submit the facts to the Arbitrator, and leave him free to decide upon them afte hearing such arguments as might be necessary." The American Commissioners replie that they should be willing to consider what principles should be laid down f observance in similar cases in future, but only with the understanding that "ar principles which should be agreed upon should be held to be applicable to the fac 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 t 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 Grea Britain as to matters arising out of the civil war: they were willing that if, throug any errors or shortcomings on the part of British Authorities, injury had been cause to American subjects, full redress should be afforded; they were willing that th question should be determined by an independent and impartial Tribunal; and thou they would naturally have preferred that the matters in dispute between the tw countries should be decided by what they believed to be the rules of Internationa * Treaty of Washington, Article VI. Law governing the case-rather than that, if the decision should be in favour 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 herein before referred to, this observation does not indeed apply. Whether vessels, which might originally have been seized, should have been so dealt with when they re-entered British ports, or whether they were protected by the commissions they had in the meanwhile 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 constituted 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 liligence which is to be understood to be required by it. Left in this difficulty, we must endeavour 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 liligence 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 endeavour 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 ind still are conflicting, therefore there is no such thing as international law, and hat, 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 liligence 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 erms of the Treaty of Washington. That Treaty may have admitted a liability in respect of the equipment of ships, where none existed by international law before, as I Elements of neutrality. Obligations of the neutral State. Obligations of the subjects of a neutral State. Liability of the State for acts of its subjects. certainly think it has; but the degree of diligence required of a neutral Governmen 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 fulfil 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 endeavour 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. 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 long as its purpose and effect is to add to the means of the belligerent for the purpose either of offence or defence. 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 defence, 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 despatches. 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 themselvesenforced as against the one, dispensed with as regards the other, are indirectly assistance given to the one so favoured. Whatever obligations attach by the general principles of the law of nations to the State or Community, as a whole, are equally 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 nations-forms 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, 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 offence against the law of his own country. the But the subject, who thus infringes the law of his own country by violating the neutrality which that law enjoins him to maintain, is amenable for his offence 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 State, as distinguished from the State itself, may have a right to hold the State responsible and to look to it for redress. For the State, that is, the community as a whole, is bound to restrain its individual members from violating obligations which, as a whole, it is bound to fulfil. Not, however, that the responsibility of the State for the acts of its subjects is absolute and unlimited. Reason has set bounds to a responsibility which would otherwise be intolerable. For it must be remembered that the consequence of a violation of neutrality is the right of the offended belligerent to treat the offending neutral as an enemy, and declare war against him. He is not bound to accept pecuniary amends as an alternative. Now, reason points out that the Government of a country can only be held responsible for breaches of neutrality committed by its subjects, when it can reasonably be expected to prevent them. There are things which a Government can prevent, and others which it cannot. It can prevent things that are done openly and in defiance of the law. The open levying of men, and expeditions departing from its territory by land or water, are things which a Government would properly be expected to prevent, and for which, if not prevented, it would be answerable. But a Government could not be so held in respect of things it cannot prevent ; such as the conduct of individual subjects in enlisting or serving in the land or sea force of a belligerent; or things done clandestinely or surreptitiously, so as to elude observation or detection notwithstanding the exercise of proper diligence to prevent the law from being broken. But then the exercise of such diligence is part of the duty of a Government, and the condition of its immunity. If this diligence has been wanting, a belligerent has just cause to hold the neutral State responsible for wrongful acts done by its subjects in violation of neutrality, and from which he, the belligerent, has suffered. We are thus brought face to face with the all-important question of what is this "diligence" which a Government is thus bound to exercise to prevent breaches of neutrality by its subjects. I shall endeavour presently to grapple with that question; but I prefer first to complete my survey of the relative rights and obligations of belligerents and neutrals. And as the principal complaint against the British Government relates to vessels of war furnished by its subjects to the Confederate States, I shall, in the first place, apply myself to the question how far the subjects of a neutral State can, consistently with the obligations of neutrality, supply a belligerent with articles of warlike use in the way of trade and business. of trade. For, thus far we have been dealing with assistance rendered to one belligerent Rights of neutral against another, animo adjuvandi, for the direct purpose of enabling him to overcome subjects in respect or resist his opponent. Very different considerations present themselves when we have to deal with assistance furnished to a belligerent, not animo adjuvandi, with the object of enabling him to overcome his enemy, but animo commercandi-in the way of trade and commerce. to trade. Here a broad and important distinction between the State and its subjects presents Difference between itself. The former, generally speaking, cannot, consistently with neutrality, under any a State and its circumstances, supply to one of two belligerents articles which may be of use to him subjects in regard in carrying on war. For, as Governments do not engage in trade, save in exceptional cases of very rare occurrence—as, for instance, when a Government disposes of ships for which it has no use-nothing supplied by a Government to a belligerent can be supplied otherwise than animo adjuvandi, that is, for a purpose inconsistent with neutrality. But its Subjects stand, in this respect, on a very different footing. The Subject, indifferent to both the belligerent parties, may be willing to sell to either articles of warlike use in which he is in the habit of dealing. Assistance, and sometimes very material assistance, is thus afforded to a belligerent, who, by this means, is enabled to carry on war. Is assistance thus afforded, not animo adjuvandi, but animo commercandi, a breach of neutrality, or is it to be considered as within the right of the neutral subject? Now, the subjects of a neutral State having in time of peace the right of carrying on trade with the belligerent, on what ground of reason or justice, it may be asked, should their right of peaceful trade be taken away, and their interests thus be damaged by reason of a war which they have had no share in bringing about, and in which they have no concern? The condition of neutrality, in not supplying anything to either belligerent with the object of assisting him against the other, or which would not be as readily supplied to the other, being observed, what reason can be suggested why the |