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the duties prescribed by the first and third rules of the Treaty of Washington. Sir Alexander Cockburn agreed, but differed in his
A similar decision (four against one) was pronounced in the case of the “ Florida,” under the second and third rules of the same articles. In the case of the “Shenandoah,” they held, unanimously, that Great Britain had not failed in any duty with respect to her, prior to her arrival at the port of Melbourne ; but (by majority of three against two—Count Sclopis and Sir A. Cockburn) that she had so failed after the said arrival. As to the “ Retribution,” that Great Britain had not failed -- by three to two. As to the “Georgia' the “Sumter," the “Nashville,” the “ Tallahassee," and the “ Chickamauga,” respectively, the same finding, unanimous. And, by a majority of four voices against one, they awarded to the United States a sum of 15,500,000 dollars in gold, " for the satisfaction of all the claims referred to the consideration of the Tribunal, conformably to the provisions contained in Article VII. of the said Treaty.”
The “reasons” of the several Arbitrators for their judgment were stated at length, and published. That of Sir Alexander Cockburn occupies two hundred and fifty folio pages in the Supplement to the London Gazette ; and, whether it may or may not command in all points the assent of the reader, furnishes at all events a most striking example of legal acuteness and power of general reasoning, applied to a series of complicated and momentous questions. To an Englishman with an Englishman's prepossessions, its vigorous language may naturally have appeared irresistible. It does not follow that it would commend itself equally to the judgment even of impartial foreigners. His energetic disclaimer of unfavourable sentiments on the part of England towards the North in the great struggle could meet among them with little response; and their inference that her conduct towards the North in the matters before the Tribunal had been influenced by such sentiments could not be shaken by simply denying their existence. Moreover, the whole fabric of Sir Alexander's arguments appears founded on certain prescriptive principles of English jurisprudence, which require strict proof as against one put on his trial where strong presumptions would satisfy foreign courts trained under a different law of evidence; and its effectiveness therefore was of that kind which depends in some degree on the preparation of the mind to receive it.
He begins by regretting that the whole subject-matter of this great contest, in respect of law as well as of fact, was not left open to the Court, to be decided according to the true principles and rules of international law in force and binding among nations, and the duties and obligations arising out of them at the time when these alleged causes of complaint are said to have arisen. When, however, the Queen's Government gave way to the desire of the United States, and consented to make the “three rules” the
1 See " Annual Register for 1871," p. 294.
measure of past obligations, it was a great and generous concession. But although a special liability has been admitted by treaty; it will still be necessary to resort to general international law in order to determine the degree of diligence required of a neutral Government. In discussing the elements of neutrality, he takes occasion to remark 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 which are done openly and in defiance of the law. But a Government could not be held liable 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. A very elaborate review follows of the opinions of Galliani, Lampredi, Azuni, Massé, Ortolan, Heffter, Bluntschli, Phillimore, and Hautefeuille as to the restrictions to which a neutral's trade is subject, and it is observed that their differences of opinion arises from the different point of view from which each party considers the question. The one party assume that to supply a belligerent with articles of warlike use, though in the way of trade, is to take part in the war; assuming which, they say, with truth, that it is the same thing whether the objectionable articles are sold to the belligerent in the country of the neutral or in his own. The other party, starting from the principle that, according to natural justice, the rights of the neutral should be left free and untouched by the wars of others, look on the existing restraints on the freedom of his commerce as encroachments on his rights, and, considering these restraints as arising entirely from convention, deny the illegality of any trade which the actual practice of nations does not prevent. The great authority of Chancellor Kent, and of the majority of writers, is in favour of the latter view. Sir A. Cockburn lets it be seen throughout that he inclines to the view most favourable to the liberty of neutrals. From his review of the present state of international law, Sir A. Cockburn draws the inference that the American allegation that the English Foreign Enlistment Act is only a recognition of duties imposed by international law is untrue.
In discussing the question what constitutes due diligence, Sir A. Cockburn appeals to the opinions of eminent Continental jurists, and stoutly contends against the doctrine on which the award is apparently based. A Government has a right to execute its neutrality laws by a procedure in harmony with its own institutions, and these will be different under despotic and free Governments. “ It is to be remembered that a Government cannot be taken to guarantee the event; in other words, to be answerable at all hazards and under all circumstances for a breach of neutrality by a subject, if it occurs. In spite of the law, and of the vigorous administration of the law, offences will take place, and neither at home nor abroad can rulers be held, under all circumstances, answerable to those who suffer from them. All that can be expected of the Government of a country is that it shall possess reasonable means to prevent offences, and use such means honestly and diligently for the benefit of those who are entitled to its protection. The terms of the Treaty, which require no more than due diligence,' exclude all notion of an absolute unconditional responsibility. This is evidently the meaning of an observation of the British counsel at the close of the fifth section of his argument on due diligence,' which the President of the Tribunal appears to have found some difficulty in understanding." The complaint of the American Government that our Foreign Enlistment Act is less stringent than theirs is shown to be unfounded, as also the statement that it is less so than those of the chief European States. The conduct of the United States in respect of its obligations to neutrality is then investigated with results not favourable to that Government.
The Government, though bound to prevent any known violation of the law, was, he holds, under no obligation to a belligerent to enforce the law for his benefit, and incurred no liability to such belligerent for not doing so, so long as the law was not enforced against the latter any more than against his enemy. Any hostile expedition permitted to leave the shores of Great Britain, which the Government by the exercise of reasonable diligence could have prevented, would have amounted to a breach of neutrality, for which it might have been held responsible. But for the mere equipping of a vessel, by shipbuilders in the way of trade, though intended for a belligerent, the Government would not be responsible; and though every Government is, no doubt, bound to prevent infractions of the law, so far as it knows of them and can prevent them, still this general duty which it owes to its own country is obviously a very different thing from the responsibility it incurs as representing the State, in relation to a foreign Power. In the one case, the maintenance of the law is left to the ordinary authorities, and to the individuals who have occasion to seek protection or redress from its operation ; in the other, the action of the Government by its immediate officers becomes necessary for its own protection. No doubt, as a matter of comity, and from a sense of justice, a Government would pay ready attention to the representatives of a belligerent power complaining of an infraction of the municipal law in a matter in which the interests of the belligerent were affected—more especially in a matter lying, as it were, on the confines of municipal and international law-and would call into action the preventive powers it possessed, to keep the law from being broken. But, under such circumstances, it might fairly leave to the representative of the belligerent to make out a case for the application of the law, just as it is left so to do to an ordinary individual who desires to put the law in motion in order to obtain redress on his own behalf. Hence, no doubt, had arisen the practice, common to the Governments both of the United States and Great Britain, of requiring the representative of a belligerent Power, invoking the aid of the Government, to produce evidence by which the action of the executive, when brought to the test of judicial inquiry, can be justified and upheld.
It is obvious that the degree of active diligence which could reasonably be expected from a Government under such circumstances is very different from what it would be bound to exercise in order to prevent a violation of neutrality, according to the law of nations, for which, as a Government, it would be properly responsible to a belligerent State. Though, by the Treaty of Washington, it must be taken that Great Britain was bound to use due diligence to prevent the equipping of ships as a matter of neutral obligation, and not as a mere matter of municipal law, yet that in determining whether due diligence was then applied or not, we must look to the relative position of the parties at the time, and insist on no more than would have satisfied the exigency of obligations then existing. Morally, in judging the conduct of the Government of that time, we are assuredly bound to do so.
Sir A. Cockburn now passes to the particular vessels charged. We only notice here those vessels as to which his judgment differs from that of his colleagues. The first case is that of the “Florida," or “Oreto.” Sir A. Cockburn's conclusions are that “the equipping of this vessel not amounting to a violation of neutrality, but simply to a breach of the Foreign Enlistment Act, the Government had no authority to seize it by the mere exercise of the prerogative of the Crown, or by virtue of any executive power. Its powers were derived from the Act of the 59th of George III., the Foreign Enlistment Act. There was not evidence on which to seize this vessel and to ask for her condemnation under the Foreign Enlistment Act. There were no means of obtaining such evidence except by the exercise of inquisitorial powers which the Government did not possess. It was not incumbent on the Government of Great Britain to ask for, or on Parliament to grant, powers inconsistent with the established principles of British law and government, and with the general institutions of the country. It cannot properly be imputed to the Government, as want of due diligence, that it did not endeavour to obtain such powers when the existing law had hitherto proved sufficient. It would be in the highest degree inequitable and unjust to hold the contrary in favour of the United States, when the law of the latter was substantially, if not absolutely, the same as that of Great Britain, and therefore could have afforded no more efficacious means of prevention than that of Great Britain.". At Nassau the "Florida” was seized, and proceedings were taken in the Admiralty Court of the Bahamas for her condemnation. She was, however,
acquitted, as Sir A. Cockburn thinks, by a miscarriage of justice. He defends, nevertheless, the integrity of the prosecution and of the court, which was governed by a mistaken view of the law.
“But it is said, in the second place, that the equipment and sending out of an armed vessel from the port of a neutral being a violation of its territory and neutral rights, and therefore a hostile act, Great Britain had the right to seize these vessels on their again coming within her jurisdiction, and was bound to do so, to prevent them from continuing to make war on vessels of the United States. The answer of the British Government is threefold—1st. That it had not the right, according to international law, to seize these vessels, seeing that when they came again into British ports, they were admitted as the commissioned ships of war of a belligerent State. 2ndly. That, independently of the foregoing ground, the British Government could not as a neutral Government, seize a ship of war of a belligerent State for that which was not a violation of neutrality, but only of its own municipal law. 3rdly. That even if it had the right, it was under no obligation to exercise it. The first of these grounds depends on the effect of the commissions which these vessels had in the meantime received from the Government of the Confederate States as ships of war. Now, it must be taken as an unquestionable fact that these ships were built, or equipped, for the de facto Government of the Confederate States, and were employed by it as regular ships of war, under the command of officers regularly commissioned. Hereupon two questions present themselves. Were these commissions valid? If so, what was their effect as to affording impunity to a vessel, thus commissioned, from seizure by the Government of Great Britain ? No doubt, the effect to be given to the commission of a belligerent Government must depend on its power to act as a Government. And I repeat what I have before endeavoured to make good : namely, that where an integral portion of a nation separates itself from the parent State, and establishes a de facto Government of its own, excluding the former Government from all power and control, and thereupon a civil war ensues, a neutral nation is fully justified in recognizing the Government de facto as a belligerent, though it has not as yet acknowledged it as a nation; and that from the time of the acknowledgment of its belligerent status, the Government de facto acquires, in relation to the neutral, all the rights which attach to the status of a belligerent of an established nationality. The practice of nations has been uniform on this point; all the maritime nations concurred in according to the Confederate Government the status and rights of a belligerent. The commissions of the Confederate States must, therefore, be taken to have been valid, and to have had the same force and efficacy as the commissions of any recognized Government would have had.”
The case of the “ Alabama " is brought into a much shorter compass than that of the “ Florida,” Adverting to the fact that the legal opinion for which the Government was waiting was delayed through the illness of Sir John Harding, Sir A. Cockburn says that