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a delay arising from such a cause could not properly have been attributed to want of due diligence; the lack of diligence on which his judgment is based is to be found farther back. It was the duty of the Collector of Customs at Liverpool, as early as the 22nd of July, to detain this vessel. When, for his better guidance and protection, the collector sought the directions of his superiors, it became the duty of the Commissioners of Customs at once to direct the seizure to be made. Misled by advice which they ought to have rejected as palpably erroneous, they unfortunately refused to cause the vessel to be seized. The matter properly belonged to their department; it was competent to them to act independently of any other department of the State ; and the case was too clear to require the opinion of the law officers, although, after the decision of the Commissioners, it might well be deemed proper on the part of the heads of the Government to consult the law officers before acting in opposition to it. The mistake was such as to carry with it legal responsibility as its consequence. But the want of due diligence did not stop here. The vessel might have been seized in Moelfra Bay, if the opinion of the law officers had been promptly communicated to the Customs authorities.
The next case is that of the “ Shenandoah,” which is discussed at
On the question of damages, Sir Alexander Cockburn's conclusions, so far as they differ from those of the other arbitrators are governed by the preceding views. On the review of the whole case, Sir Alexander remarks, “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 have hereinbefore called attention, I 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 unaltered. 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 'Shenandoah,' 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 unjust.”
The statement of Sir A. Cockburn has been given thus in long extracts, because, while in itself more interesting to English readers than the others, it gives a fuller and more detailed summary of the arguments on both sides than can be elsewhere found. That of Mr. Adams, the American arbitrator, is also marked by great ability, and takes rather the politician's than the lawyer's view of the questions at issue, as was most advantageous to the side which he represented. He laid especial stress on the general disinclination of our scattered home and colonial local authorities to assist in any way the cause of the North, and their readiness in sheltering their partiality under any shadow of legal or administrative justification. "On a calm examination of the evidence presented to us in the case of the 'Alabama') respecting the measures taken by the authorities charged with the duty of prevention, it really looks as if they had chosen to look any way for it rather than the right way.
“It is alleged that the escape of this vessel was effected earlier than originally contemplated, by reason of the reception by the managers of intelligence from London of the intent of the Government to detain her. This statement appears in the deposition of one of the persons who served as an officer on board from the start and during the whole of her first cruise. Certainly a delay of five whole days in announcing a decision might furnish ample opportunity for active sympathisers, of whom there was notoriously an abundance in that capital, to watch and report every symptom of change that might be gathered from sources of authority. Even the fact of the long delay itself might be construed as ominous. Of the causes of that delay no absolute knowledge has ever yet been completely obtained. Neither is it deemed expedient here to enter into any examination of it. It is sufficient to the present purpose to say that the omission to act in season was due to causes wholly within the province of her Majesty's Government to control, and that the failure is one which must entail the responsibility for the great injuries that ensued, not upon the innocent parties whom it was the admitted duty of that Government to have protected, but upon those through whom the injuries became possible.
“It thus appears, that this vessel was built and fitted up with the intent to carry on war with the United States, in the kingdom of Great Britain, in violation of her laws; and that, notwithstanding the evidence of the fact was established so far in the opinion of her Majesty's law officers as to justify detention, by reason of the absence of due vigilance, not without suspicion of connivance on the part of some of her Majesty's officers, and of an extraordinary delay in issuing the necessary orders at the most critical moment, the vessel was suffered to escape out of the jurisdiction; that her armament, her supplies, and her crew were all provided and transported from her Majesty's kingdom without the smallest effort to investigate their nature or their purposes; that though orders were freely given for the detention of the vessel at any of the colonial ports at which she might arrive, the first time that she did actually appear she was received and recognized with all the honours due to the marine of a recognized belligerent Power, without the smallest manifestation of dissatisfaction with the gross violation of laws that had entailed upon her Majesty's Government a grave responsibility to a Power with which she was at peace.
“Thus it appears to me beyond a doubt that in the case of the 'Alabama,' Great Britain,' by her omission to exercise due diligence in preventing the fitting out of this vessel, which it had reason to believe intended to cruise against a Power with which it was at peace, has failed to fulfil the duties set forth in the first article prescribed to the arbitrators as their guide under the terms of the Treaty of Washington."
Then follow (in the order given in the Gazette) the statements of Viscount Itajubà and M. Staempfli. Some criticism was expended at the time on a singular misstatement, through inadvertency, of some of the facts of the "Florida” case by the latter of these diplomatists; but it cannot be said that it was such as to impair the reasoning on which his judgment is founded. The statement of Count Sclopis, the President, concludes the papers. These three are all given in the French language. In respect of the case of the “ Florida,” he observes that certain errors which he notices may have been those of the local authorities at Melbourne, but that “in the affairs of customary administration, and in all which relates to the execution of special regulations, the responsibility for the acts of all subaltern agents, when a controversy arises between two sovereign States, must rest with those who hold the superior government” – a dictum which certainly does not hold out much prospect of success, in future arbitrations in similar cases, to the holders of a vast colouial empire like ours. In the matter of the “ Alabama," he held that our Government was gravely and directly in fault. He entered into a minute discussion of the question, What constitutes “due diligence” according to the meaning of the Treaty of Washington? and laid it down that “the neutral Power cannot, in such a case, discharge himself of responsibility by having exacted of the belligerent sufficient proof to support a regular procedure before the tribunals. This would reduce the belligerent to the same condition with a private citizen of the neutral country. The law of nations (le droit des gens) does not content itself with these narrow measures of precaution. It requires greater liberality of proceeding. It is not only the comity of nations which claims this indulgence; it is the real need which nations have of mutual aid and protection to maintain their independence and guarantee their security.” This passage is quoted because it exemplifies, better perhaps than any other, the difference between the view commonly taken of this series of questions by English statesmen, from Lord Russell downwards, and that which prevailed with the arbitrators.
The Chancellor of the Exchequer (Mr. Lowe) criticized the proceeding of the arbitrators in thus giving the reason of their several judgments, in a speech delivered on the occasion of his being presented with the freedom of the city of Glasgow (Sept. 27). Passing on to allude to the Geneva award, he remarked that he conceived it to be the duty of this country to obey that award without cavil or comment; and that, though he was happy to see that such was the opinion of Lord Chief Justice Cockburn, he regretted that his learned friend had not taken the course of simply signing the award with the other arbitrators, instead of having published his argument. He also regretted that the arbitrators of Geneva should have felt it necessary to deviate from the practice of ordinary arbitrators, and to give the reasons of their award. With regard to the principles of international law which the arbitrators had laid down, he did not consider that this country was bound by those principles. In connexion with this subject, he noticed the feature of the American constitution which necessitated foreign treaties being submitted to the Senate, and took occasion to condemn the views of those persons in this country who held that treaties should be submitted to Parliament.
Such was the termination of the proceedings, hitherto unexampled, under the arbitration clause of the Treaty of Washington. The decision of disputed points between nations has been on many previous occasions entrusted by mutual consent to a neutral sovereign, but never before to a tribunal of learned men specially named for the purpose, and with the form and method of a public legal controversy.
The Mixed Commission, appointed to sit at Washington for the settlement of English claims arising out of the civil war, disposed of 130 such claims before the end of the year, and then adjourned to January, 1873.
It remains to notice the effect of the Treaty of Washington and the proceedings under it, so far as concerned the Dominion of Canada. It has already been stated that the negotiators on the side of Great Britain did their best to import into the Treaty the claims for compensation on account of the losses inflicted on Canada by the Fenian raids; but that, finding the objections of their American colleagues to this course insuperable, those claims were withdrawn. By that Treaty it was finally arranged that the fishermen of the United States should enjoy, in common with British subjects, the use of the coast fisheries of Canada, omitting, however, the fisheries in rivers and estuaries, which were still reserved to British fishermen, similar privileges being granted to British subjects on the eastern sea-coasts of the Union as far south as lat. 39o, maintaining, however, the reservations as to places which are specified in the former treaty of 1854. But, inasmuch as the concession thus made by Great Britain was asserted by us to be of greater
value than that made in return by the United States, commissioners were to be appointed to assess the amount of compensation which might be due to the British Government-representing in this matter Canada—on full inquiry. Three commissioners to be appointed, one by each Government, and one by the Governments conjointly, and to meet at Halifax for the purpose. Certain stipulations were added as to the navigation of the St. Lawrence, and of certain American waters, by the subjects of the two countries; and others to regulate transit trade. These articles were to take effect as soon as laws were passed to enforce them by the two countries and by Canada, and were to last for ten years, and remain in force afterwards only subject to notice on either side.
The provisions of the Treaty met, as might be expected, with considerable disapproval in Canada. The Canadian Government objected that “the principal cause of difference between Canada and the United States (the danger from Fenian raids) has not been removed by the Treaty, but remains a subject for anxiety:" and that "a cession of territorial rights of great value has been made to the United States (namely, the coast fishery), not only without the previous assent of Canada, but contrary to the expressed wishes of the Canadian Government.” They complained that the only substantial advantage which the States could offer them, namely, freedom of trade, had been persistently withheld. “What," they said, “the Canadians were willing to accept as an equivalent for the fisheries was the concession of certain commercial advantages; and it has therefore been most unsatisfactory to them that her Majesty's Government should have conceded the use of the inshore fisheries for considerations which are deemed wholly inadequate. They have failed to discover, that in the settlement of the so-called “ Alabama' claims, which was the most important question in dispute between the two nations, England gained such advantages as to be required to make further concessions at the expense of Canada.” (Minute of Canadian Privy Council, July 28, 1871.)
Although, however, the view of the subject thus taken by the Canadian Government was at once natural and just, yet the subsequent course of events showed that although seriously, it was not very strongly, entertained. In point of fact, the admission of America to the coast fisheries interested not Canada in general, but Nova Scotia, New Brunswick, and Prince Edward's Island ; and the inhabitants of these maritime provinces, though they cherished their exclusive privileges, perhaps were not long in discovering that considerable compensation might be expected for them, not, probably, in the counter privilege conceded to them on the American side, but in the continuance of the stimulus to local trade which the partial and temporary concession of those privileges had already produced. Ultimately, the Canadian Government offered (by minute of 20th January, 1872) to be satisfied with “an imperial guarantee,” to the extent of 4,000,0001., “ to a portion of the loan which it will be necessary for Canada to raise in order to procure the construction of