it did give at last, for the detention of the vessel, were issued so late that their execution was not practicable;

And whereas, after the escape of that vessel, the measures taken for its pursuit and arrest were so imperfect as to lead to no result, and therefore cannot be considered sufficient to release Great Britain from the responsibility already incurred;

And whereas, in spite of the violations of the neutrality of Great Britain, committed by the "290," this same vessel, later known as the Confederate cruiser Alabama, was on several occasions freely admitted into the ports of colonies of Great Britain, instead of being proceeded against as it ought to have been in any and every port within British jurisdiction in which it might have been found;

And whereas the government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the plea of insufficiency. of the legal means of action which it possessed:

Four of the arbitrators for the reasons above assigned, and the fifth, for reasons separately assigned by him, are of opinion that Great Britain has in this case failed, by omission, to fulfill the duties prescribed in the first and the third of the rules, established by the sixth article of the treaty of Washington.

And whereas, with respect to the vessel called the Florida, it results from all the facts relative to the construction of the Oreto in the port of Liverpool, and to its issue therefrom, which facts failed to induce the authorities in Great Britain to resort to measures adequate to prevent the violation of the neutrality of that nation, notwithstanding the warnings and repeated representations of the agents of the United States, that Her Majesty's government has failed to use due diligence to fulfill the duties of neutrality;

And whereas it likewise results from all the facts relative to the stay of the Oreto at Nassau, to her issue from that port, to her enlistment of men, to her supplies, and to her armament, with the cooperation of the British vessel Prince Alfred, at Green Cay, that there was negligence on the part of the British colonial authorities;

And whereas, notwithstanding the violation of the neutrality of Great Britain, committed by the Oreto, this same vessel, later known as the Confederate cruiser Florida, was, nevertheless, on several occasions freely admitted into the ports of British colonies;

And whereas the judicial acquittal of the Oreto at Nassau cannot relieve Great Britain from the responsibility incurred by her under the principles of international law; nor can the fact of the entry of the Florida into the Confederate port of Mobile, and of its stay there! during four months, extinguish the responsibility previously to that time incurred by Great Britain:

For these reasons the tribunal, by a majority of four voices to one, is of opinion, that Great Britain has in this case failed, by omission,

to fulfill the duties prescribed in the first, in the second, and in the third, of the rules established by Article VI of the Treaty of Washington. And whereas, with respect to the vessel called the Shenandoah, it results from all the facts relative to the departure from London of the merchant vessel, the Sea King, and to the transformation of that ship into a Confederate cruiser under the name of the Shenandoah, near the island of Madeira, that the government of Her Britannic Majesty is not chargeable with any failure, down to that date, in the use of due diligence to fulfill the duties of neutrality;

But whereas it results from all the facts connected with the stay of the Shenandoah at Melbourne, and especially with the augmentation which the British government itself admits to have been clandestinely effected of her force, by the enlistment of men within that port, that there was negligence on the part of the authorities at that place:

For these reasons the tribunal is unanimously of opinion, that Great Britain has not failed, by any act or omission, "to fulfill any of the duties prescribed by the three rules of article VI in the Treaty of Washington, or by the principles of international law not inconsistent therewith," in respect to the vessel called the Shenandoah, during the period of time anterior to her entry into the port of Melbourne; And, by a majority of three to two voices, the tribunal decides that Great Britain has failed, by omission, to fulfill the duties prescribed by the second and third of the rules aforesaid, in the case of this same vessel, from and after her entry into Hobson's Bay, and is, therefore, responsible for all acts committed by that vessel after her departure from Melbourne, on the 18th day of February, 1865.

And so far as relates to the vessels called the Tuscaloosa (tender to the Alabama), the Clarence, the Tacony, and the Archer, (tenders to the Florida), the tribunal is unanimously of opinion, that such tenders or auxiliary vessels, being properly regarded as accessories, must necessarily follow the lot of their principals, and be submitted to the same decision which applies to them respectively.

And so far as relates to the vessel called Retribution, the tribunal, by a majority of three to two voices, is of opinion, that Great Britain has not failed, by any act or omission, to fulfill any of the duties prescribed by the three rules of article VI in the Treaty of Washington, or by the principles of international law not inconsistent therewith. And so far as relates to the vessels called the Georgia, the Sumpter, the Nashville, the Tallahassee, and the Chickamauga, respectively, the tribunal is unanimously of opinion, that Great Britain has not failed, by any act or omission, to fulfill any of the duties prescribed by the three rules of article VI in the Treaty of Washington, or by the principles of international law not inconsistent therewith.

And so far as relates to the vessels called the Sallie, the Jefferson

Davis, the Music, the Boston, and the V. H. Joy respectively, the tribunal is unanimously of opinion that they ought to be excluded from consideration for want of evidence.

And whereas, so far as relates to the particulars of the indemnity claimed by the United States, the cost of pursuit of the Confederate cruisers are not, in the judgment of the tribunal, properly distinguishable from the general expenses of the war carried on by the United States:

The tribunal is, therefore, of opinion, by a majority of three to two voices, that there is no ground for awarding to the United States any sum by way of indemnity under this head.

And whereas, prospective earnings cannot properly be made the subject of compensation, inasmuch as they depend in their nature upon future and uncertain contingencies:

The tribunal is unanimously of opinion that there is no ground for awarding to the United States any sum by way of indemnity under this head.

And whereas, in order to arrive at an equitable compensation for the damages which have been sustained, it is necessary to set aside all double claims for the same losses, and all claims for "gross freights," so far as they exceed "net freights";

And, whereas, it is just and reasonable to allow interest at a reasonable rate;

And, whereas, in accordance with the spirit and letter of the Treaty of Washington, it is preferable to adopt the form of adjudication of a sum in gross, rather than to refer the subject of compensation for further discussion and deliberation to a board of assessors, as provided by article X of the said treaty:

The tribunal, making use of the authority conferred upon it by article VII of the said treaty, by a majority of four voices to one, awards to the United States a 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, conformably to the provisions contained in article VII of the aforesaid treaty.

And, in accordance with the terms of article XI of the said treaty, the tribunal declares that "all the claims referred to in the treaty as submitted to the tribunal are hereby fully, perfectly, and finally settled."

Furthermore, it declares that "each and every one of the said claims,. whether the same may or may not have been presented to the notice of, or made, preferred, or laid before the tribunal, shall henceforth be considered and treated as finally settled, barred, and inadmissible." In testimony whereof this present decision and award has been made in duplicate, and signed by the arbitrators who have given their assent

thereto, the whole being in exact conformity with the provisions of article VII of the said treaty of Washington.

Made and concluded at the Hotel de Ville of Geneva, in Switzerland, the 14th day of the month of September, in the year of our Lord one thousand eight hundred and seventy-two.

I am of opinion that the right of territory is to be reckoned from those islands. That being established, it is not denied that the actual capture took place within the distance of three miles from the islands, and at the very threshold of the river. But it is said that the act of capture is to be carried back to the commencement of the pursuit, and that if a contest begins before, it is lawful for a belligerent cruiser to follow, and to seize his prize within the territory of a neutral state. And the authority of Bynkershoek is cited on this point. True it is, that that great man does intimate an opinion of his own to that effect; but with many qualifications, and as an opinion, which he did not find to have been adopted by any other writers. I confess I should have been inclined to have gone along with him, to this extent, that if a cruiser, which had before acted in a manner entirely unexceptionable, and free from all violation of territory, had summoned a vessel to submit to examination and search, and that vessel had fled to such places as these, entirely uninhabited, and the cruiser had without in

8 The three rules of the Treaty of Washington, as they are generally called, were the subject of much discussion at the time of their promulgation. Great Britain declared that they did not state the duties of neutrals as they were at the time of the adoption of the rules. The opinions of publicists were divided. There is, however, no difference of opinion at the present day. They are admitted to state correctly the duties of neutral nations in time of war, and they are in substance incorporated in articles 5 and 8 of Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval War, signed at The Hague, October 18, 1907.

For the text of this Convention, see Appendix, p. 1158.

"Warships building to the order of a belligerent in neutral yards must obviously be detained, and likewise any which there is reason to believe are destined for his use. Thus Great Britain, on the outbreak of the SpanishAmerican War, prevented the departure of the Brazilian battleships, Amazo

For the facts of this case and the portion of the opinion relating to accre tion, see ante, p. 195.

jury or annoyance to any person whatever, quietly taken possession of his prey, it would be stretching the point too hardly against the captor, to say that on this account only it should be held an illegal capture. If nothing objectionable had appeared in the conduct of the captors before, the mere following to such a place as this is, would, I think, not invalidate a seizure otherwise just and lawful.

But that brings me to a part of the case, on which I am of opinion that the privateer has laid herself open to great reprehension. Captors must understand that they are not to station themselves in the mouth of a neutral river, for the purpose of exercising the rights of war from that river, much less in the very river itself. It appears from the privateer's own log-book that this vessel has done both; and as to any attempt to shelter this conduct under the example of King's ships, which I do not believe, and which, if true, would be no justification to others, captors must, I say, be admonished that the practice is altogether indefensible, and that if King's ships should be guilty of such misconduct, they would be as much subject to censure as other cruisers. It is unnecessary to go over all the entries in the log. The captors appear by their own description to have been standing off and on, obtaining information at the Balize, overhauling vessels in their course down the river, and making the river as much subservient to the purposes of war, as if it had been a river of their own country. This is an inconvenience which the states of America are called upon to resist, and which this court is bound on every principle to discourage and correct. With respect to one vessel, it appears that the Bilboa, under Spanish colors, and an undoubted Spanish ship, had been captured and carried into the river; and it was stated in an affidavit which was exhib-. ited to account for the absence of the usual witnesses in that case, that the prisoners had escaped. The cause was brought on upon the evidence of the releasing witnesses under this representation. It now appears by an entry in this log "that the prisoners were set on shore"; an act highly unjustifiable, in its own nature, independent of the deception with which it has been accompanied. The prisoners are the king's prisoners, and captors are particularly enjoined by the instructions not to release any prisoners belonging to the ships of the enemy, and they violate their duty whenever they do. When I advert to the imposition that has been put upon the court in that transaction, how can I trust myself to any representation coming from the same per

nas and Almirante Abrew, which had been sold to the United States. Higgins, Hague Peace Conferences, p. 466 (1909). And this should apply equally to merchant ships, which it is known are intended to be converted by the belligerent into commerce destroyers, as in the case of the four liners sold to Russia in 1904 by the Hamburg-Amerika and North German Lloyd Steamship Companies and absorbed into the Russian volunteer fleet. Brassey's Naval Annual, 1904." J. A. Hall, The Law of Naval Warfare, 151, 152 (1921).

SCOTT INT.LAW-54