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." Occupying three times as much space as the opinions of all the other arbitrators together, and 2 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;" 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 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 In this relation it is proper to advert to the Arbitrators' Expres- opinions of the arbitrators on the question of sions as to British British feeling toward the United States durFeeling. ing 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 1Papers 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.) these circumstances, and in view of the dangers to which the United States was exposed in Great Britain and her colonies, the government should, in his opinion, have fulfilled its duties as a neutral "by the exercise of a diligence equal to the occasion." As to the existence or nonexistence of unfriendly feeling, Viscount d'Itajubá expressed no opinion; but in speaking of the duty of a neutral to detain a vessel which had departed in violation of its neutrality, when such vessel came again within its jurisdiction, he said: "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, the neutral justly exposes itself to having its good faith called in question by the other belligerent."2 Sir Alexander Cockburn himself, while denying the existence of partiality or of willful negligence on the part of the British Government, declared that, "though partiality does not necessarily lead to want of diligence, yet it is apt to do so, and in a case of doubt would turn the scale."3 At various places, in the cases of the Florida, the Alabama, the Shenandoah, and the Retribution, Mr. Adams resorted to evidences of sympathy with the Confederacy on the part of the local officials as an explanation of the lack of due diligence shown on certain occasions. Especially is this so in respect of the action of the customs authorities at Liverpool in the cases of the Florida and the Alabama, and of the authorities in the Bahamas in the cases of the Florida and the Retribution. But as to the British Government itself, he expressed the opinion that its failure to adopt adequate measures to prevent the escape of the Florida and the Alabama from England was due to the conception which it entertained in the earlier stages of the war, that its obligations as a neutral were discharged by the pursuit of a passive policy-a policy that stopped with the investigation of evidence furnished by agents of the United States, and originated no active measures of prevention. "Much as I may see cause," said Mr. Adams in his opinion in the case of the Florida, "to differ with him (Lord Russell) in his limited construction of his own duty, or in the views which appear in thes? papers to have been taken by him of the policy proper to be pursued by Her Majesty's government, I am far from drawing 1 Papers relating to the Treaty of Washington, IV. 9. 3 Id. 313. any inferences from them to the effect that he was actuated in any way by motives of ill will to the United States, or indeed by unworthy motives of any kind. If I were permitted to judge from a calm comparison of the relative weight of his various opinions with his action in different contingencies, I should be led rather to infer a balance of good will than of hostility to the United States." 1 Attitude of Mr. The attitude of Mr. Adams as a member of the tribunal of arbitration merits more than passing notice. To say that the neutral arbitrators performed their duty with intelligence and impartiality is only to do them justice; but they had no temptation to be partial. But Mr. Adams was appointed by one of the parties to the controversy, and each opinion that he expressed directly affected the interests of his own government. Yet, after following his course through published and unpublished records, from the time of his appointment as arbitrator till he signed the award at Geneva, I venture to say that on no occasion did he betray a spirit of partiality. This fact appears the more remarkable when we consider that the very questions on which it finally became his duty to pronounce judgment were discussed by him through a long and exciting period of contention as the diplomatic representative of the United States. 1 Papers relating to the Treaty of Washington, IV. 162. Cobden, in a letter to Sumner of May 2, 1863, touching the fitting out of Confederate cruisers in England, said: "I have reason to know that our government fully appreciates the gravity of this matter. Lord Russell, whatever may be the tone of his ill-mannered despatches, is sincerely alive to the necessity of putting an end to the equipping of ships of war in our harbors to be used against the Federal Government by the Confederates. He was bona fide in his aim to prevent the Alabama from leaving, but he was tricked and was angry at the escape of that vessel. If Lord Russell's despatches to Mr. Adams are not very civil he may console himself with the knowledge that the Confederates are still worse treated.” (Am. Hist. Rev. II. 310.) In the same letter Cobden stated that he had urged Lord Russell to be "more than passive in enforcing the law respecting the building of ships for the Confederate government. I especially referred to the circumstance that it was suspected that some ships pretended to be for the Chinese Government were really designed for that of Richmond, and I urged him to furnish Mr. Adams with the names of all the ships building for China and full particulars where they were being built. This Lord Russell tells me he had already done, and he seems to promise fairly. Our government are perfectly well informed of all that is being done for the Chinese." |