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I have now traveled through the wide range of this inquiry, partly
in order to place the facts, over which a cloud of prejudice
has been raised, in their true light; partly to explain the reasons which prevent my concurring in the award which the majority of the tribunal have thought it right to pronounce.
The result is that, while I differ from the grounds on which the decision of the tribunal in the case of the Alabama is founded, nevertheless, owing to the special circumstances to which I bave hereinbefore called attention, I concur in holding Great Britain liable in respect of that ship.
With respect to the Florida, on the best judgment I can form upon a review of all the facts, the charge of want of due diligence is not made out. I cannot concur in thinking that anything was left undone by the government of Her Majesty which could be reasonably expected of them, or the omission of which can justly subject them to the charge of want of due diligence and care. I cannot agree that the law of Great Britain should have been changed because of the breaking out of the civil war. First, because the existing law was adequate to all that could reasonably be expected ; secondly, because, at all events, there was at the time no reason for believing it other than sufficient; lastly, because even if the law might have been improved and the hands of the Executive strengthened with advantage, the United States could have no possible right to expect any amendment of the British law so long as their own remained waltered.
As to the Shenandoah, I cannot express too strongly my dissent from the decision of the majority.
Not concurring in the decision as to the Florida and Shenandoahı, I cannot, of course, concur in awarding the sum which is to be paid on account of the damage done by them.
Even if this were otherwise, I should still hold the amount awarded greater than it should have been.
Lastly, under the very special circumstances out of which these claims have arisen, it appears to me that the allowance of interest was uncalled for and wnjust.
But while the award of the tribunal appears to me to be open to these exceptions, I trust that, by the British people, it will be accepted with the submission and respect which is due to the decision of a tribunal by whose award it has freely consented to abide.
The United States, on the other hand, having had the claims of their citizens for losses sustained considerately weighed, and compensation awarded in respect of them, will see, I trust, in the consent of Great Britain to submit these claims to peaceful arbitration, an honest desire on her part to atone for any past errors or omissions which an impartial judgment might find to have existed—and will feel that all just cause of grievance is now removed—so that, in the time to come, no sense of past wrong remaining unredressed will stand in the way of the friendly and harmonious relations which should subsist between two great and kindred nations.
A. E. COCKBURX. GENEVA, September 14, 1872.
V.-REPLY OF THE SECRETARY OF STATE, ACKNOWLEDGING
THE RECEIPT OF THE REPORT OF THE AGENT OF THE
Acknowledging the receipt of the report.
DEPARTMENT OF STATE,
Washington, October 22, 1872. SIR: I have received your report of the date of September 21, with the accompanying protocols and award and opinions of the arbitrators. I congratulate you most cordially upon the termination of your arduous and ably-conducted labors and upon the success which has attended the arbitration. The Presi. dent directs me to convey to you and to the counsel who attended the tribunal on the part of the United States, and to the other gentlemen who were engaged with you at Genera, the expression of his thanks and high appreciation of the great ability, learning, labor, Th-President's ap and devotion to the interests, the dignity, and honor of the proval. nation which each in his appropriate sphere has made so successfully conducive to the very satisfactory result which has been reached. This result may be summarily stated thus: The United States claimed that Great Britain had, during the recent rebellion in this country, failed, by act and by omission, to fulfill toward this Government the duties due from one state to another, and that she was liable in damages to make good the losses resulting directly from the acts of several vessels which had been fitted out and had been allowed to depart from her ports in violation of such duties. The United States also deemed it important to obtain from the tribunal an expression of opinion whether certain claims for 'indirect or remote losses, which had been advanced at the time of their occurrence, and had been the subject of much diplomatic correspondence, as well as of public discussion, and which had not been elimiaated in the previous negotiations from the matters of difference between the two governments, did or did not constitute good foundation for demand or award of damages between nations.
Great Britain denied that she had failed of any duty toward this Gov. ernment, or that she was liable to make good any losses resulting, either directly or indirectly, from any such acts.
The questions at issue between the two governments were by the treaty referred to the decision of the High Tribunal which convened at Geneva.
The arbitrators, having the case and the counter case of both governments and the argument of the counsel of the United States before them, at their session on the 19th of June stated arbitruturs ou the lui. that, “after the most careful perusal of all that has been urged on the part of the Government of the United States in respect of these claims, they have arrived, inilividually ani collectirely, at the conclusion that these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between natious." At the
The action of the
Effect of this judgment.
The anard of the tribunal.
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."
At the next meeting, the agent of Her Britannic Majesty read a stateEntry of judgmene ment 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 declaration 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 pro
ceeded 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. 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. hy hul switzerland, ers which complied with the joint request of this Govern
ment and that of Her Britannic Majesty. Mr. Adams, on this as on all occasions of his public service, fulfilled
the expectations to which his appointment gave rise. It is gratifying to know that his course, and the ability displayed
by him, have received the acknowledgment of Her Majesty's government, to wbich 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 Alx 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, baving 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. It does not appear by the protocol that the document which was thus
ordered to be annexed was read at the time. Indeed, your
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 tribnnal 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 baktench you would have felt it your right and duty to object to the
reception and filing of a paper which would probably not
Mr. Adama receives the thanks of Her Bri tannie Majesty and of the President.
This opinion not read or made known to bis colleagur
contents had known it
Sir A. Cockburn pro
Resume of the poRitions he maintains at the representative
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 subinitted 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 Cockburn professedly and avowedly speaks of himself on feuce to speak as the two occasions as “ sitting on this tribunal as in some sense the representative of Great Britain."
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 au. thority” 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.
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 unqualitied, 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.
lle 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 mis. take 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 col. onies, 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 accorded 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 justities 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 government.
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 “ representa: tive" of the British government in the tribunal at Geneva, and are 66 "published by authority" of that government, without dissent or qualification. It is not my present purpose to discuss these various positions. Some
of them are in evident conformity with the views of public trovare in de fining policy hitherto expressed or practiced by the United States,
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 glauce 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 erery case of war we have to consider alike what are the rights of the neutral as against both belligerents, and what are its
Effect of this con.
neutral rights and obligations.