leaving Melbourne. "And whereas, with respect to the vessel called the 'Shenandoah,' it results from all the facts relative to And of the Shenandoah after the departure from London of the merchantvessel 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 fulfil 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 fulfil 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 fulfil 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 And of the Tuscaloosa, Clarence, Tacony, and Archer. "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 No responsibility for the voices, is of opinion Retribution, Georgia, Sumter, Nashville, Tallahassee, or "That Great Britain has not failed by any act or omission to fulfil 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 Sumter, 5627- -42 "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 fulfil 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, Jefferson Davis, Music, Boston, and V. H. Joy not taken into consideration. "The Sallie, "The Jefferson Davis, "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. allowed. "And whereas, so far as relates to the particulars of the indemnity claimed by the United States, the Claims for cost of pursuit not costs 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 uncer And for prospective earnings. tain 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. Net freights only allowed. "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 ma$15,500,000 compensation jority 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 awarded. 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 The payment to be a bar. 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 Hôtel 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. "CHARLES FRANCIS ADAMS. "FREDERICK SCLOPIS. "STÄMPFLI. "VICOMTE D'ITAJUBÁ.” The paper which Sir Alexander Cockburn Sir Alexander Cock- asked leave to have incorporated with the burn's Dissent. record was not annexed to the official protocol handed to the agent of the United States; but on the 24th of September 1872 there appeared in a supplement to the London Gazette a paper entitled "Reasons of Sir Alexander Cockburn for dissenting from the award of the tribunal of arbitration;" and a copy of this number of the Gazette was transmitted to the agent of the United States as the paper that should have been annexed to the protocol' After reading the document thus published, Mr. Fish declared that if the agent of the United States had had an opportunity to become acquainted with its contents at Geneva he doubtless would have felt it his "right and duty to object to the reception and filing of a paper which would probably not have been officially received by the tribunal had an opportunity been afforded to invite their attention to some of its reflections on this government and its agent and counsel."2 Occupying three times as much space as the opinions of all the other arbitrators together, and 1 Papers relating to the Treaty of Washington, IV. 48. 2 Id. 546 547. almost twice as much as the Case of the United States, the paper dealt in sweeping and oftentimes violent criticisms of men and things, which even Sir Alexander Cockburn's colleagues did not wholly escape. While he described himself in two places as sitting on the tribunal "as in some sense the representative of Great Britain," he deprecated the limitations imposed upon the arbitrators by the rules of the treaty;2 represented Mr. Staempfli as maintaining that "there is no such thing as international law," and that the arbitrators were to proceed "according to some intuitive perception of right and wrong, or speculative notions of what the rules as to the duties of neutrals ought to be;"3 charged counsel of the United States with "the most singular confusion of ideas, misrepresentation of facts, and ignorance, both of law and history, which were perhaps ever crowded into the same space," and with affronting the tribunal by attempting to "practice" on its "supposed credulity or ignorance;" and animadverted upon the Case of the United States as seeming "to pour forth the pent-up venom of national and personal hate."5 4 That Sir Alexander Cockburn deemed it incumbent upon him, as a member of a tribunal judicial in its nature, before which his government was ably represented by an agent and counsel, to adopt the tone of partisan controversy betrayed a defect in judgment as well as in temper. In speaking as a member of the tribunal of arbitration he ought at least to have remembered that the weight which an expression of opin1on derives from the judicial position of him who utters it is worse than lost when the speaker proclaims, by word or by act, that he has put off the character of the judge for that of the advocate. No doubt the feeling of resentment which Sir Alexander Cockburn professed, on account of the charges of hostile motives and insincere neutrality made in the American Case, was genuine. But in its Counter Case the British Government distinctly refused to reply to these charges, saying that if they were of any weight or value the proper reply to them would be found in the proofs. If the British Counter Case and the British argument were defective because they were free from vituperation, it was not the place of an arbitrator to attempt to supply the omission. Nor should Sir Alexander Cockburn have for 1 Papers relating to the Treaty of Washington. IV. 286, 313. 3 Id. 233. +Id. 286. gotten that in the case of the Alabama, whose career formed the type, just as her name afforded the description, of the Confederate cruisers and their depredations, the evidence was so overwhelming that he himself, while maintaining that "a mere error in judgment" did not amount to negligence, was compelled to declare that it was "impossible to say that in respect of this vessel there was not an absence of due diligence' on the part of the British authorities."1 sions as to British Feeling. In this relation it is proper to advert to the Arbitrators' Expres- opinions of the arbitrators on the question of British feeling toward the United States during the civil war. The only arbitrator, except Sir Alexander Cockburn, who undertook specially to discuss this question was Count Sclopis; but there are expressions on various aspects of the subject in the opinions of the other arbitrators. Count Sclopis, while "far from thinking that the animus of the English Government was hostile to the Federal Government during the war," said 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." The circumstances during the first years of the war-the establishment of Confederate agencies in England, the presence and reception of Confederate representatives, the interests of great commercial houses at Liverpool where opinion was openly pronounced in favor of the South, and public expressions, even by the Queen's ministers, as to the improbability of the reestablishment of the Union-were, he thought, such as must have influenced, if not the government itself, at least a part of the population. Under 'Papers Relating to the Treaty of Washington, IV. 459, 460. Mr. Cushing, in his Treaty of Washington, 128, states that Sir Alexander Cockburn, as soon as the tribunal was declared dissolved, abruptly left the room "without a word or sign of courteous recognition for any of his colleagues," and "disappeared in the manner of a criminal escaping from the dock, rather than of a judge separating, and that forever, from his colleagues of the bench;" and he then proceeds to characterize Sir Alexander's conduct and "dissenting opinion" in terms of which the foregoing comparison furnishes an example. A leading journal, in a review of Mr. Cushing's book, observed that, while the British arbitrator's conduct was irregular and unsuitable, Mr. Cushing might have shown the fact without resorting to "invectives." (Rev. de Droit Int. VI. 154.) Sir Alexander's "irregularities" were indeed little commended, but much censured in the London press. (Cushing's Treaty of Washington, 130, et seq.) |