we limited ourselves to the request of the tribunal. On the other side, new tables were put in with new and elaborate criticisms upon our list of claims. We did not object to this irregular criticism, but claimed the right of reply given by the treaty.

Award.

The tribunal, at length, announced that a result had been reachedthat fifteen and a half millions of dollars would be awarded as a gross sum, to be paid by Great Britain to the United States. It does not appear in the protocols how the arbitrators arrived at this amount. I am informed that it was reached by mutual concessions.

award a sum in gross.

The neutral arbitrators and Mr. Adams, from the beginning of the Determination to proceedings, were convinced of the policy of awarding a sum in gross. For some weeks before the decision was given, I felt sure that the arbitrators would not consent to send the case to assessors until they should have exhausted all efforts to agree themselves upon the sum to be paid. We therefore devoted our energies toward securing such a sum as should, be practically an indemnity to the sufferers. Whether we have or have not been successful can be determined only by the final division of the sum.

Counsel advised on

It is due to our counsel to state that in all the proceedings which were taken since their arrival in Europe no step was made withevery stage. out their advice and consent, and many important ones were taken on their suggestion and origination. That their labors have been incessant any one may imagine who sees the mass of able papers which came from their pens.

Independence and

arbitrators.

The opinions which the neutral arbitrators presented bear testimony to the sagacity, good judgment, and knowledge of ability of neutral the principles of law and fact at issue, which they brought to bear on the case, and to the untiring labor with which they mastered the varied and difficult questions submitted by the parties for their decisions. It only remains to say that they exhibited throughout marked patience and good temper, and that these admirable qualities were sometimes needed. These opinions will undoubtedly be read with interest. I take the liberty, in closing, to make a few remarks upon the main points at issue, as they are treated in the opinions of the different arbitrators.

Due diligence.

1. DUE DILIGENCE.

We maintained in the Case that the diligence of the neutral should “be proportioned to the magnitude of the subject, and to the dignity and strength of the power which is to exercise What was chained by it," (page 158,) and that it should be "gauged by the the United States. character and magnitude of the matter which it may affect, by the relative condition of the parties, by the ability of the party incurring the liability to exercise the diligence required by the exigencies of the case, and by the extent of the injury which may follow negligence," (page 152.) We thought, for instance, that it would not be just to hold Brazil, with its extended coast, sparse population, and feeble means of internal communication, and Great Britain, with its compact population, its net-work of railways and telegraphs, and its administrative system always under the control of the central government, to an identical standard of active vigilance.

Position of Great Britain. On the other side it was said:

Her Majesty's government knows of no distinction between more dignified and less dignified powers; it regards all sovereign states as enjoying equal rights, and equally

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, military force, or population.

Count Sclopis, in his opinion, says:

Views of Count Sclopis.

The words due diligence necessarily imply the idea of a relation between the duty and its object. It is impossible to define a priori and abstractly an absolute duty of diligence. The thing to which the diligence relates determines its degree.

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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:

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Decision of the tribunal.

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 neutrality issued by Her Majesty, on the 13th of May, 1861.

2. TOLERATION OF INSURGENT OPERATIONS IN ENGLAND, AND ENGLISH FEELING AGAINST THE UNITED STATES. Count Sclopis says, respecting this point:

Unfriendliness
Eugland.

Views of Count
Sclopis.

The British government was fully informed that the confederates had 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 had put themselves in communication with the English government. Lord Russell had received these confederate representatives in an unofficial 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 managing 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 favor of the insurgents. The Queen's ministers themselves did not disguise that in their opinion it would be very difficult 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 her 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.

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Views of Viscount

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 de'Itajuba. 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.”

Adams.

It would seem from some of Mr. Adams's expressions that he did not Views of 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 maintained his position as a judge between the two contending nations. Of him, 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.

3. DUTY TO DETAIN AN OFFENDING CRUISER WHEN IT COMES AGAIN WITHIN THE NEUTRAL'S JURISDICTION, AND EFFECT OF A COMMIS

SION UPON SUCH CRUISER.

Effect of mission.

૧

Position of United States.

com

the

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 construction 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.

British position.

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.

American rejoinder.

Views of Viscount d'Itajuba.

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.

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Count Sclopis says, on this point:

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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 consequences which it originally was intended to prevent ?

In the award the Tribunal says that

tribunal.

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 Decision of the commission which the government of the belligerent power, benefited by the violation of neutrality, may afterward have 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

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 coat. coal in British ports in greater quantities and with greater Position of the freedom, and with less restrictions than were imposed upon

United States.

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. Adams.

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:

Views of Conat Sclopis.

1 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:

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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. Stampfli.

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

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of operations.

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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.

set 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

Nashville, &c., not

Objections.

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 pon the Suniter, the decision of the tribunal of arbitration, not only the withstanding British claims growing out of the acts of the Florida, the Alabama, 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.

dissenting opinion.

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.

Britain.

sel.

His charges against

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 "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