Papers relating to the foreign relations of the United States, transmitted to Congress with the annual message of the President, December 2, 1872, Part II, Volume IV

Mr. Davis to Mr. Fish .

Paris , September 21, 1872. (Received October 10, 1872.)

Award and protocols transmitted. Sir: I transmit herewith, in a separate inclosure, the original award of the tribunal of arbitration, and, in another separate inclosure, the original protocols of the conferences.

Having now conducted to a successful termination the interests intrusted to me by the President, I respectfully ask permission to make a statement respecting them.

Action of joint high commission on the indirect claims. At the conference of the joint high commissioners at Washington, in which the subject of the Alabama claims was first considered, the American commissioners, in their opening statement, defined the demands of the United States against Great Britain, growing out of the acts of the Alabama, and the other cruisers, which were to be the subject of the negotiations, in the following language, viz:

Protocol of May 4, 1871, and statement of claims. Extensive direct losses in the capture and destruction of a large number of vessels, with their cargoes, and in the heavy national expenditure in the pursuit of the cruisers; and indirect injury in the transfer of a large part of the American commercial marine to the British flag, in the enhanced payment of insurance, in the prolongation of the war, and in the addition of a large sum to the cost of the war and the suppression of the rebellion.

At the same time they indicated the manner in which some of these claims could be substantiated, viz: the claims for the loss and destruction of private property in the ordinary manner; the cost of the pursuit of the cruisers “by certificates of Government accounting officers,” and what they styled “indirect losses” by estimates. All the subsequent negotiations proceeded from this starting point.

In harmony with all previous action. It has been shown, beyond possible question, in the argument of General Cushing, Mr. Evarts, and Mr. Waite, presented to the tribunal on the 15th of June last, that this definition of our claims was in strict accordance with all previous negotiations between the two governments, with the action of the Senate of the United States, and with the official expressions of the President to Congress.

No exception taken by British commissioners. The British members of the joint high commission took no exception to the definition when it was made by their American colleagues. They acquiesced in it.

Definition of “Alabama Claims,” in the protocol, binding on the agent. When I had the honor to receive the directions of the President to prepare the Case of the United States for submission to the tribunal, I regarded myself as bound by the definition of the words “Alabama Claims” which the American commissioners had given in the opening conference, which they had adhered to throughout the negotiations, and which had been placed in the protocol by the joint act of all the commissioners. I looked in vain in the treaty for any waiver or remission of those claims. On the contrary, I found an express provision that the United States were to have the judgment of the tribunal on all their claims growing out of the acts of the cruisers.

Preparation of case.
Private claims classified as indirect. The question was a practical one: for the claims for “enhanced rates of insurance” were among those which had been classified as “indirect” in the statement, which bad received the approval of all the members of the joint high commission Many claims of this character were presented at the Department of State, and a circular was issued, under the immediate direction of the Secretary of State, informing claimants that all claims growing out of the acts of the cruisers would be presented to the tribunal, leaving that body to determine on their merits.

Employment of Mr. Beaman.
His fidelity. It was impossible for me to prepare the Case and at the same time, to direct in person the details of the arrangement of the evidence respecting the national and individual claims. Mr. Charles C. Beaman, jr., of New York, was employed to do the latter, under general directions from me, and did his work with admirable fidelity. Thus the evidence already collected, together with important new materials from the archives of the several Departments, and the proof of the losses suffered by individual claimants, were arranged and stated in the manner marked out by the American members of the joint high commission, viz:

1. Arrangement of the evidence. The evidence offered by individual claimants for the loss and destruction of property and for enhanced rates of insurance was analyzed and tabulated, and a full abstract of each case was prepared by the clerks.

2. The national claims for the pursuit of the cruisers were stated and tabulated at the Navy Department, and were inserted by us exactly as-received from that Department.

3. No proof was offered of the national losses by the transfer of the commercial marine, or by the prolongation of the war, but they were left to be estimated by the tribunal of arbitration, should Great Britain be found responsible for them.

Preparation of case—principles adopted. The Case, which was reserved for my own work, was constructed on the following theories of fact and of law—theories which have received the sanction of the eminent counsel of the United States; which have been adhered to in all the arguments, and which have, to no small extent, been adopted by the arbitrators:

(a) The tribunal a judicial body. That the tribunal of arbitration was a judicial body, substituted by the parties to take the place of force, and empowered to try and determine issues which otherwise could be settled (if at all) only by war.

(b.) Case to be stated frankly. That the injuries of the United States should be stated, therefore, with the fullness necessary to a determination in a court of law, and with the same frankness with which they would be stated in case of an appeal to force. I did not think that the United, States could obtain full justice at the hands of the arbitrators if any appreciable part of their wrongs were left untold.

(c.) Unfriendly course of Great Britain and British ministers. Want of due diligence That the government of Great Britain, by its indiscreet haste in counselling the Queen’s proclamation recognizing the insurgents as belligerents, by its preconcerted joint action with France respecting the declarations of the congress of Paris, by its refusal to take steps for the amendment of its neutrality laws, by its refraining for so long a time from seizing the rams at Liverpool, by its conduct in the affair of the Trent, and by its approval of the course of its colonial officers at various times; and that the individual members of the government, by their open and frequent expressions of sympathy with the insurgents, and of desires for their success, had exhibited an unfriendly feeling, which might affect their own course, and could not but affect the action of their subordinates; and that all this was a want of the “due diligence” in the observance of neutral duties which is required at once by the treaty and by international law.

What acts of subordinates a government not responsible for. It seemed to me that such facts, when proved, imbued with the character of culpable negligence many acts of subordinates in the British service for which, otherwise, the government might not be held responsible; as, for instance, acts of the collector of customs at Liverpool respecting the Florida and the Alabama; acts of the authorities at Nassau respecting the arming of the Florida at Green Bay, and subsequently respecting her supplies of coal; acts of the authorities at Bermuda respecting the Florida; and acts of the authorities at Melbourne respecting the Shenandoah. There were many such acts of subordinates which, taken individually and by themselves, would not form a just basis for holding culpable a government which was honestly and with vigilance striving to perform its duty as a neutral; but which, taken in connection with each other, and with the proofs of animus which we offered, establish culpability in the government itself.

(d.) Maintenance of insurgent administrative bureaus on British soil a want of due diligence. That the insurgents established and maintained, unmolested throughout the insurrection, administrative bureaus on British soil, by means of which the several cruisers were dispatched from British ports, or were enabled to make them bases of hostile operations against the United States, and that the British government was cognizant of it.

(e.) British denial of liability. That Great Britain, from the outset, denied, and to the last persisted in denying, that the departure of vessels like the Alabama and the Florida, under any circumstances, could be a breach of international duty; and had refused to exercise diligence to prevent such departure.

(f.) That in point of fact no such diligence had been exercised; and that, while there were particular facts as to each vessel, tending to fix responsibility upon Great Britain, these general indisputable facts were sufficient to carry responsibility for the acts of all the cruisers.

Submission of this part of case to publicists. The treatment of this line of argument exhausted five chapters of the Case. These five chapters were printed in a memorandum form, and were submitted to several gentlemen, some of whose names I may mention without violating confidence; only remarking, injustice to them, that they should not be held responsible for the views in this part of the Case, by reason of having read it in advance.

1. President Woolsey They were sent to President Woolsey, who made many valuable suggestions, most of which were adopted.

2. Mr. Beach Lawrence. Mr. William Beach Lawrence, the eminent publicist, permitted me to consult him, not only after these chapters were written, but also during their composition. I did not adopt his well-known views respecting the Queen’s proclamation and the unfriendliness of the British cabinet; nor do I suppose that he, knowing my convictions to be otherwise, had any idea that I would adopt them. I did, however, receive from him valuable hints, which improved the work.

3. Mr. E. R. Hoar. Mr. E. R. Hoar, one of the members of the joint high commission, read these chapters at my request, and expressed his general approval. I think that he made several suggestions, and that all were adopted.

4. General Cushing. The veteran statesman and scholar, General Cushing, made several valuable contributions, all of which were embodied in the work.

5. The Cabinet. The different members of the Cabinet were consulted, and, so far as they made suggestions, their views were adopted. It is within your own knowledge that I received several valuable contributions or hints from you.

Last, chapter not submitted for advice.
No claim made for a particular sum for indirect damages—tribunal asked to estimate. It was not until I had thus received and acted on the advice of a wide circle of statesmen, jurists, and publicists, competent to criticise the work, of whose patriotic desire to have the interests of their country represented with dignity at Geneva no one could doubt, that the final chapter of the work was written. This chapter contained the formal statement of the claims submitted for adjudication under the treaty. Among them were those which have since become known as “the indirect claims.” To prevent misapprehension it should be said that this chapter was not sent out for criticism as the others had been. The statements were presented in the exact language of the protocol made by the two parties jointly for the purpose of defining the claims to be submitted to the tribunal. They were accompanied by references to the proofs respecting the individual claims, and the national claims for the pursuit of the cruisers; and with a request that the tribunal would estimate the national losses in the transfer of the commercial marine, and in the prolongation of the war. And, in order that the statement might be complete, some reasons were added why, should the tribunal be of opinion that Great Britain was responsible for the prolongation of the war, the prolongation should be dated from July, 1863.

Delivery of the case at Geneva. The Case, as thus revised, was reprinted, and was, in accordance with the terms of the treaty, taken to Geneva, and there delivered to the arbitrators and to the British agent in the official English, (and also in a French translation, made for the convenience of the arbitrators,) together with seven volumes of accompanying documents, correspondence and evidence.

The language of the case tried. The facts which were disclosed in the Case were, undoubtedly, such as called for the reprobation of just-thinking persons; but these facts were told, so far as I was able to do so, in simple and temperate language, without harshness or violence. Nothing could have been further from my expectations than the outburst which followed.

Comments of the British press. In about a fortnight after we left Geneva, it began to be said in the London newspapers that the good faith of the British government was called in question in the American Case, and soon the whole press, with the exception of the newspaper universally recognized as the leading journal, opened an attack upon the chapter on unfriendliness.

The Standard thought we had “sacrificed the consistency and dignity of our pleadings to satisfy popular prejudice at home.” The Telegraph spoke of the “effrontery” with which the American demands were set forth, and said that “it must be borne in mind that General Grant seeks re-election.” The Saturday Review spoke of the narrative as “perverted and spiteful,” and “a malignant composition,” and said that “if the Americans wish to express still more hostile feelings, they must discontinue verbal controversy.” The Pall-Mall Gazette, usually fair and courteous, though hostile, charged that the claims had been bought up by “American legislators and officers of state even among the higher and more influential grade.” The Spectator charged us with “sharp practice,” and “a discreditable forcing of the natural meaning of the treaty in order to win popularity at the elections.” The Daily News called the claims “extravagant demands intended as an electioneering card,” and complained that the case was a “long and passionate pleading,” in which “chapter after chapter is devoted to the presumed motives of our [British] public men.”

In fact, fault was found indiscriminately with nearly everything in the Case except the one thing afterward made the main subject of complaint, namely, the allegation that it contained demands which were not included in the submission in the treaty. That was an objection which did not appear in the British press until weeks after the exchange of the documents at Geneva, and, so far as I am aware, was not taken by any person entitled to speak by the authority of the government until a still later day.

Action of the British government. Even as late as the middle of January negotiations were going on between the respective agents and counsel regarding the times and the manner of making supplemental arguments at Geneva, (should the tribunal call for any,) without an intimation that there might be a difference as to the subjects to be argued. It was not until the 3d of February that the ministry announced officially that they had not anticipated that the claims which have improperly become known as the “indirect claims” would be presented at Geneva.

Contemplated request for withdrawal of the American case Indeed, there is some evidence that the British government was occupied with the parts of the Case which had offended the British press; for I gather from General Schenck’s telegram of the 27th of February, reporting to you an interview with Lord Granville, that the cabinet had under consideration at one time the propriety of asking for the absolute withdrawal of the American Case, on other grounds than its presentation of the “indirect claims.”¹

Opinions of the Continental press favorable to the United States. For several weeks, I may say months, the London press continued to discuss our national claims. This discussion was conducted with a vehemence, and with insinuations or charges of bad faith, which attracted the attention of the Continental press. In all the principal capitals of Europe, the Alabama claims became the subject of comment. The unanimity of the verdict in favor of our construction of the treaty was as complete as was the unanimity of the English press in favor of Great Britain, and it was universally conceded that England could not retire from the arbitration without dishonor. I inclose a variety of extracts on this subject.

Exchange of the counter cases. During all this time I was occupied in Paris in the preparation of the counter-case, and the other duties of the agency. On the 15th of April I was able to comply with the requirements of the treaty and the directions of the tribunal by delivering the counter-case and accompanying documents to Mr. Favrot for the British agent and for the arbitrators. The volume of evidence accompanying the counter-case was selected and arranged under the directions of the counsel. At the same time I delivered French translations of these documents, and also two volumes containing French translations of selected pieces from the seven volumes of evidence submitted with the case in December.

Industry and zeal of the secretaries. This, and much of the subsequent work, could not have been completed in season had not the secretaries been willing, when called upon, to work day and night for the purpose.

Friendly views of the British agent. Lord Tenterden met me at Geneva in April with unreserve, and in the spirit of conciliation. Under instructions from his government, he lodged with the secretary of the tribunal a notice to the individual arbitrators of the action taken by Her Majesty’s government on the 3d of February, in order that the act of filing the British counter case should not be deemed to be a waiver of that action. But he did not conceal his own strong desire to save the treaty, and he left on my mind the conviction that the judicial solution which the tribunal subsequently made of the political difficulty raised by the British note of the 3d of February would be accepted by the British government.

The argument by the counsel regarded as masterly. The time between the 15th of April and the 15th of June was occupied by the counsel in the preparation of their argument. This argument has attracted great attention throughout Europe, and has received universal praise as a masterly vindication of our rights.

British move for long adjournment. On the 15th of June the tribunal re-assembled, the agents and counsel on both sides being present. The argument of the United States was duly delivered, (together with the French translation made for the convenience of the arbitrators;) but the British agent, instead of filing the British argument, asked for an adjournment of several months, in order to enable the two governments to arrange politically the questions in dispute.

Consequent negotiations.
Adjudication on the indirect claims. I had already discussed with General Gushing the probability of adjusting these differences by the action of the tribunal. Instead of assenting to the proposed adjournment, I therefore, with the full concurrence of the counsel, asked for an adjournment of two days, in order to give us time to consider the position. Before the tribunal convened again, steps were taken for removing the difficulty through the action of that body. In the proceedings which followed we acted as a unit on our side. Happily they resulted in a solution by the tribunal, which proved to be acceptable to both governments. The arbitrators announced their opinion that the claims known a the indirect claims did not constitute, on principles of international law applicable to such cases, good and sufficient foundation for an award of compensation or computation of damages between nations. On the side of Great Britain the solution was a practical one; no damages were to be awarded for this class of claims. On our side the solution was reached in the manner pointed out by the treaty, viz, by the action of the court. On the suggestion of the other side, this unofficial act was then formally entered as an official judgment, in the following language:

Count Sclopis, on behalf of all the arbitrators, then declared that the said several claims for indirect losses mentioned in the statement made by the agent of the United States on the 25th instant, and referred to in the statement just made by the agent of Her Britannic Majesty, are, and from henceforth will be, wholly excluded from the consideration of the Tribunal, and directed the secretary to embody this declaration in the protocol of this day’s proceedings.

Friendly feeling on both sides. In all these proceedings, I found the British agent and counsel sharing our sincere and earnest desire to save the treaty.

British argument filed. Motion for further argument. The British argument was next filed, with my consent, and an effort was then made on their side to re-open argument and secure a new hearing on the whole question. This was successfully resisted, and the tribunal took a recess for a fortnight.

On Monday, the 15th of July, it re-assembled. The efforts on the part of Great Britain to secure re-argument were renewed. The neutral arbitrators said that they had examined the whole case, and that they wanted no re-hearing. It was decided by the tribunal to give the opinion of the arbitrators seriatim on each cruiser, beginning with the Florida.

Opinions on the Florida. Sir Alexander Cockburn presented the facts and reasoning affecting this vessel at an’ extreme length, holding Great Britain free of blame. The other arbitrators held her responsible, reserving, however, the question as to the effect of a commission.

Sir Alexander Cockburn, then, in vigorous language, and with great warmth of manner, urged the tribunal to permit an argument upon the meaning of the words “due diligence,” upon the effect of a commission, and upon the law respecting the supplies of coal. The tribunal granted the request. I was, myself, in favor of allowing further arguments, within some defined scope. I thought that we had nothing to lose by an argument, in which we had the reply, in the hands of such masters of discussion as General Cushing, Mr. Evarts, and Mr. Waite.

Supplemental agreements ordered and made. The hearings were ordered, and, before the dissolution of the tribunal, arguments had been made (always on the suggestion of England) on the following points, the British counsel leading and ours following: 1, on the meaning of the words “due diligence;” 2, on the effect of a commission on the offending vessel; 3, on supplies of coal; 4,on the recruitment of men for the Shenandoah, at Melbourne; 5, on the effect of the entry of the Florida into the port of Mobile; 6, on the subject of interest; 7, on the general subject of the statement of claims. These arguments were presented generally both in the English and the French languages.

Decisions of the tribunal. The protocols which accompany this dispatch show the order in which these various papers were delivered, and the order in which the arbitrators considered the various cruisers. It was not until after the arguments on the first four subjects that the formal votes required by the treaty were taken separately upon the responsibility of Great Britain as to each cruiser. The tribunal decided unanimously that there was responsibility for the acts of the Alabama. Count Sclopis, Mr. Stämpfli, and Mr. Adams held that there was responsibility for the acts of the Shenandoah after leaving Melbourne, but not before. Great Britain was released from responsibility as to the other vessels, except the Florida; Mr. Adams holding that there was responsibility for the acts of the Retribution, and Mr. Stämpfli holding that there was responsibility for the acts of that vessel only so far as related to the Emily Fisher. The formal vote on the Florida was taken at a subsequent conference, after agument by counsel on the special question of the effect of the entry into Mobile. Count Sclopis, Viscount d’Itajuba, Mr. Stämpfli, and Mr. Adams held there was responsibility for her acts.

Damages The deliberations of the tribunal, on the subject of damages, were held with closed doors. The arbitrators asked each party for comparative tables, which were furnished. On our side, we limited ourselves to the request of the tribunal. On the other side, new tables were put in with new and elaborate criticisms upon our list of claims. We did not object to this irregular criticism, but claimed the right of reply given by the treaty.

Award. The tribunal, at length, announced that a result had been reached—that fifteen and a half millions of dollars would be awarded as a gross sum, to be paid by Great Britain to the United States. It does not appear in the protocols how the arbitrators arrived at this amount. I am informed that it was reached by mutual concessions.

Determination to award a sum in gross. The neutral arbitrators and Mr. Adams, from the beginning of the proceedings, were convinced of the policy of awarding a sum in gross. For some weeks before the decision was given, I felt sure that the arbitrators would not consent to send the case to assessors until they should have exhausted all efforts to agree themselves upon the sum to be paid. We therefore devoted our energies toward securing such a sum as should be practically an indemnity to the sufferers. Whether we have or have not been successful can be determined only by the final division of the sum.

Counsel advised on every stage. It is due to our counsel to state that in all the proceedings which were taken since their arrival in Europe no step was made without their advice and consent, and many important ones were taken on their suggestion and origination. That their labors have been incessant any one may imagine who sees the mass of able papers which came from their pens.

Independence and ability of neutral arbitrators. The opinions which the neutral arbitrators presented bear testimony to the sagacity, good judgment, and knowledge of the principles of law and fact at issue, which they brought to bear on the case, and to the untiring labor with which they mastered the varied and difficult questions submitted by the parties for their decisions. It only remains to say that they exhibited throughout marked patience and good temper, and that these admirable qualities were sometimes needed. These opinions will undoubtedly be read with interest. I take the liberty, in closing, to make a few remarks upon the main points at issue, as they are treated in the opinions of the different arbitrators.

1. Due diligence.

Due diligence
What was claimed by the United States We maintained in the Case that the diligence of the neutral should “be proportioned to the magnitude of the subject, and to the dignity and strength of the power which is to exercise it,” (page 158,) and that it should be “gauged by the character and magnitude of the matter which itmay affect, by the relative condition of the parties, by the ability of the party incurring the liability to exercise the diligence required by the exigencies of the case, and by the extent of the injury which may follow negligence,” (page 152.) We thought, for instance, that it would not be just to hold Brazil, with its extended coast, sparse population, and feeble, means of internal communication, and Great Britain, with its compact population, its network of rail way sand telegraphs, and its administrative system always under the control of the central government, to an identical standard of active vigilance.

Position of Great Britain. On the other side it was said:

Her Majesty’s government knows of no distinction between more dignified and less dignified powers; it regards all sovereign states as enjoying equal rights, and equally subject to all ordinary international obligations; and it is firmly persuaded that there is no state in Europe or America which would be willing to claim or accept any immunity in this respect, on the ground of its inferiority to others in extent, military force, or population.

Views of Count Sclopis. Count Sclopis, in his opinion, says:

The words due diligence necessarily imply the idea of a relation between the duty and its object. It is impossible to define a priori and abstractly an absolute duty of diligence. The thing to which the diligence relates determines its degree.* * * As to the measure of activity in the performance of the duties of a neutral, I think the following rule should be laid down; that it should be in a direct ratio to the actual danger to which the belligerent will be exposed through the laxity of the neutral, and in an inverse ratio to the direct means which the belligerent can control for averting the danger.

Decision of the tribunal. The Tribunal, in its award, says:

The due diligence referred to in the first and third of the said rules ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part.* * * The circumstances out of which the facts constituting the subject-matter of the present controversy arose were of a nature to call for the exercise, on the part of Her Britannic Majesty’s government, of all possible solicitude for the observance of the rights and duties involved in the proclamation of neutrality issued by Her Majesty, on the 13th of May, 1861.

Unfriendliness of England. 2. Toleration of insurgent operations in England, and English feeling against the United States.

Views of Count Sclopis. Count Sclopis says, respecting this point:

The British government was fully informed that the confederates had established in England a branch of their means of attack and defense against the United States. Commissioners representing the government of Richmond were domiciled in London, and had put themselves in communication with the English government. Lord Russell had received these confederate representatives in an unofficial way. The first visit took place on the 11th of May, 1861, that is to say, three days before the Queen’s proclamation of neutrality, and four days before Mr. Adams arrived in London as the minister of the United States. And further, the English government could not but know that great commercial houses were managing the interests of the confederates at Liverpool, a town which, from that time, was very openly pronounced in favor of the South. In Parliament itself opinions were before long openly expressed in favor of the insurgents. The Queen’s ministers themselves did not disguise that in their opinion it would be very difficult for the American Union to re-establish itself as before. * * * It results from this, in my opinion, that the English government found itself, during the first years of the war of secession, in the midst of circumstances which could not but have an influence, if not directly upon itself, at least upon a part of the population subject to the British Crown. No government is safe against certain waves of public opinion, which it cannot master at its will. I am far from thinking that the animus of the English government was hostile to the Federal Government during the war. Yet there were grave dangers for the United States in Great Britain and her colonies which there were no direct means for averting. England therefore should have fulfilled her duties as a neutral by the exercise of a diligence equal to the gravity of the danger. * * * It cannot be denied 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.

Views of Viscount d’Itajuba. Viscount d’Itajuba has not placed on record his opinion on this subject, unless it can be gathered from a single passage in his remarks upon the effect of a commission on an offending cruiser, when he says, “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 it exposes itself to having its good faith justly called in question by the other belligerents.”

Views of Mr. Adams.
His impartiality. It would seem from some of Mr. Adams’s expressions that he did not concur in these views of his colleagues. While regretting that he did not do so, because the views seem to me to be in accordance with the facts, and also in accordance with general principles which all maritime powers would desire to maintain, I must bear testimony to the perfect and dignified impartiality with which, not only in this respect, but throughout the proceedings, Mr. Adams maintained his position as a judge between the two contending nations. Of him, at least, it may be said that his love of country never controlled his sense of justice, and that at no time did he appear as an advocate.

3. Duty to detain an offending cruiser when it comes again within the neutral’s jurisdiction, and effect of a commission upon such cruiser.

Effect of a commission.
Position of the United States.
British Position. It was maintained in the American Case that, by the true construction of the second clause of the first rule of the treaty, when a vessel like the Florida, Alabama, Georgia, or Shenandoah, which has been especially adapted within a neutral port for the use of a belligerent in war, comes again within the neutral’s jurisdiction, it is the duty of the neutral to seize and detain it. This construction was denied by Great Britain. It was maintained in the British papers submitted to the tribunal, that the obligation created by this clause refers only to the duty of preventing the original departure of the vessel, and that the fact that the vessel was, after the original departure from the neutral port, commissioned as a ship of war protects it against detention.

American rejoinder. To this point we rejoined that a commission is no protection against seizure in such case, and does not operate to release the neutral from the obligation to detain the offender.

Views of Viscount d’Itajuba. The Viscount d’Itajuba seemed to favor the American, construction. He said:

According to the latter part of the first rule of Article VI of the Treaty of Washington, the neutral is bound also to use due diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, [viz, against a belligerent,] such vessel having been specially adapted, in whole or in part, within its jurisdiction to warlike use. * * * If, then, a vessel built on neutral territory for the use of a belligerent, fraudulently and without the knowledge of the neutral, comes again within the jurisdiction of the sovereign whose neutrality it has violated, it ought to be seized and detained.

Count Sclopis says, on this point:

It is on the nature of these special circumstances that the first rule laid down in Article VI of the Treaty of Washington specifically rests. The operation of that rule would be illusory, if it could not be applied to vessels subsequently commissioned. The object in view is to prevent the construction, arming, and equipping of the vessel, and to prevent her departure when there is sufficient reason to believe that she is intended to carry on war on behalf of one of the belligerents; and when probability has become certainty, shall not the rule be applicable to the direct and palpable consequences which it originally was intended to prevent?

In the award the Tribunal says that—

Decision of the tribunal. The effects of a violation of neutrality committed by means of the construction, equipment and armament of a vessel are not done away with by any commission which the government of the belligerent power, benefited by the violation of neutrality, may afterward have granted to that vessel; and the ultimate step by which the offense is completed cannot be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means of establishing his innocence. The privilege of exterritorality, accorded to vessels of war, has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principles of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality.

It will be observed that the Tribunal, instead of adopting the recognition by the Viscount d’Itajuba of a positive obligation on the part of the neutral to detain the vessel, in the case supposed, limited itself to expressing the opinion that, in such case, the neutral would have the right to make such detention.

4. Supplies of coal.

Supplies of coal Position of the United States. It was maintained in the American Case that the proofs showed that the insurgent cruisers were permitted to supply themselves with coal in British ports in greater quantities and with greater freedom, and with less restrictions than were imposed upon the United States; audit was insisted that, in consequence of these facts, there was an absence of neutrality, which made those ports bases of hostile operations against the United States under the second rule of the treaty.

On this point the award says that—

Decision of the tribunal. In order to impart to any supplies of coal a character inconsistent which the second rule, prohibiting the use of neutral ports or waters, as a base of naval operations for a belligerent, it is necessary that the said supplies should be connected with special circumstances of time, of persons, or of place, which may combine to give them such character.

It does not appear by the terms of the award that Great Britain is held responsible for the acts of any vessel solely in consequence of illegal supplies of coal. The question is, therefore, a speculative one, so far as relates to this controversy. The opinions of the four arbitrators who signed the award furnish, however, the explanation of what they mean when they speak of “special circumstances of time, of persons, or of place.”

Mr. Adams says:

Views of Mr. Adam. I perceive no other way to determine the degree of responsibility of a neutral in these cases, than by an examination of the evidence to show the intent of the grant in any specific case. Fraud or falsehood in such a case poisons everything it touches. Even indifference may degenerate into willful negligence, and that will impose a burden of proof to relieve it before responsibility can be relieved.

Count Sclopis says:

Views of Count Sclopis. I will not say that the simple fact of having allowed a greater amount of coal than was necessary to enable a vessel to reach the nearest port of its country constitutes in itself a sufficient grievance to call for an indemnity. As the lord chancellor of England said on the 12th of June, 1871, in the House of Lords, England and the United States equally hold the principle that it is no violation of the law of nations to furnish arms to a belligerent. But if an excessive supply of coal is connected with other circumstances which show that it was used as a veritable res hostilis, then there is an infraction of the second article of the treaty. * * * Thus, for example, when I see the Florida and the Shenandoah choose for their fields of action, the one the stretch of sea between the Bahama archipelago and Bermuda, to cruise there at its ease, and the other Melbourne and Hobson’s Bay, for the purpose immediately carried out, of going to the Arctic Seas, there to attack the whaling vessels, I cannot but regard the supplies of coal in quantities sufficient for such services, infractions of the second rule of Article VI.

Mr. Stämpfli says of the Sumter:

Views of the Stampfli. The permission given to the Sumter to remain and to take in coal at Trinidad does not of itself constitute a sufficient basis for accusing the British authorities of having failed in their duties as neutrals, because the fact cannot be considered by itself, since the Sumter both before and after that time was admitted into the ports of many other States where it staid and took in coal * * * so that it cannot be held that the port of Trinidad served as a base of operations.

But of the Shenandoah he says:

A supply of coal was not a necessary condition of neutral asylum, and in supplying her with so large a quantity of coal, the capacity of the ship for making war was increased just as much as by the recruitment of her crew which took place.

Views of Viscount d’Itajuba. The Viscount d’Itajuba, at the thirty-first conference, while signing the decision, remarked with regard to the recital concerning the supply of coals, that he is of the opinion that every government is free to furnish to the belligerents more or less of that article.

5. The municipal laws of England.

Municipal laws of England cannot be set up in justification. It was maintained in the American Case that the liability of Great Britain should be measured by the rules of international law; and that it could not be escaped by reason of any alleged deficiencies in any internal legislation enacted for the purpose of enabling the government to fulfill its international duties.

The pleadings and arguments on the part of Great Britain are filled with denials of this proposition in every possible way, from the opening Case to the last supplemental argument of Sir Roundell Palmer.

The award says, “the government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the insufficiency of the legal means of action which it possessed.”

6. The Sumter, the Nashville, &c.

The tribunal pass upon the Sumter, Nashville, &c., notwithstanding British objections. It was maintained in the American Case that, under the terms of the treaty of Washington the parties had agreed to submit to the decision of the tribunal of arbitration, not only the claims growing out of the acts of the Florida, the Alabama, the Georgia, and the Shenandoah, which originally proceeded from ports of Great Britain, but also all claims growing out of the acts of other cruisers, such as the Nashville, the Sumter, &c., which could in any way be shown to have used British ports as bases of supplies. The British Case and Counter Case strenuously contended that the submission was limited to the four vessels first above named. The tribunal unanimously, including Sir Alexander Cockburn, took no notice of this claim of Great-Britain, and considered all the claims presented and decided them upon their merits.

Sir A. Cockburn’s dissenting opinion. 7. The dissenting opinion of Sir A. Cockburn.

He is the representative of Great Britain. The frankness with which Sir Alexander Cockburn confesses in this opinion that he sat on the Tribunal, not as a judge, but as, “in some sense the representative of Great Britain.” one of the parties to the controversy, places before the world the knowledge of a fact of which, otherwise, it would have been better to take no public notice.

His charges against the American counsel The chief justice calls legal propositions made by General Cushing, Mr. Evarts, and Mr. Waite, over their signatures and under the responsibility of counsel, “strange misrepresentations,” and “assertions without the shadow of a foundation.” He says that “their imaginations must have been lively, while their consciences slept.” He finds in a portion of their argument “an extraordinary series of propositions,” and “the most singular confusion of ideas, misrepresentations of facts, and ignorance both of law and history, which were, perhaps, ever crowded into the same space.” He calls the part of their argument on which he was commenting, “an affront offered to this tribunal, by such an attempt to practice on our Supposed credulity or ignorance,” and says that he “is at a loss to understand how counsel, familiar with English law, can take upon themselves to make statements of this sort.”

They need no vindication.
No opportunity offered to consider the charges. I need not assume in the United States to vindicate the accuracy of statements or the soundness of reasonings which have the guarantee of the names of our distinguished counsel. The charges are sanctioned by the chief justice alone. I have no hesitation in expressing my conviction that they would have been indignantly repudiated by each and all of his colleagues had the paper in which they are made been publicly read, or had its contents been made known at the time when the Tribunal ordered it to be recorded. This voluminous paper was, in fact, not read in the Tribunal; its author presented it in bulk without any statement respecting its character; no one had any reason to imagine its contents; and it was not made public until several days after the dissolution of the Tribunal and the separation of its members. As Sir Alexander Cockburn says of the charges of unfriendliness which were made in the American Case against members of Lord Palmerston’s cabinet, “The world must judge between the accusers and accused.”

He charges the case with abuse and hostility. The British arbitrator also charges that the Case of the United States “pours forth the pent-up venom of national and personal hate.” He speaks of the “abuse” it “freely bestows,” and complains of the “hostile and insulting tone thus offensively and unnecessarily adopted toward Great Britain, her statesmen, and her institutions.”

The reason for those charges. These charges appear to be founded upon the proof of the desire of various members of the British government for the success of the insurgents in the South, taken from the mouths of the speakers and presented for the consideration of the Tribunal, and upon the legitimate application which was made of that proof in the issue respecting “due diligence” which was pending before the tribunal at Geneva.

The justice of the line of argument in the American case admitted. A complete vindication of the line of argument in the Case (if any were needed) could be drawn from Sir Alexander Cock-burn’s paper. “There can be no doubt,” he says, “that these speeches not only expressed the sentiments of the speakers, but may be taken to be the exponent of the sentiments generally entertained at that time;” and he adds, “though partiality does not necessarily lead to want of diligence, yet it is apt to do so, and in ease of doubt would turn the scale.” With such an admission as this, it is surprising that a man of the robust sense of the chief justice should have reproduced the rash imputations of the British press.

That I charged individual members of Lord Palmerston’s cabinet with a partiality for the insurgents, is true; equally true is it that I supported the charge by proof from their own lips.

But I never questioned their right to entertain such partiality, or to express it in any manner that suited them. I never even assumed to criticise its justice before a tribunal created to try other issues. I confined myself strictly to the issues before that body, and I argued that this partiality of individual members of the government would be apt to lead to want of diligence, and in case of doubt would turn the scale—a, line of argument which is now admitted to be just.

Lord Russell justifies it. If I argued that these acts of individual members of the British government were inconsistent with the “due diligence” required by the treaty, I did only what Lord Russell had said to Mr. Adams must be the inevitable result of an arbitration. “Have the British government acted with due diligence, or, in other words, with good faith and honesty?” was the question by which he said the liability of England was to be determined.

Lord Westbury justifies it. If I urged that, in any instance, the neutrality of Great Britain was not sincere, I did but pursue the line of argument which Lord Westbury had defended in advance in the House of Lords, and I did it nearly in his own language.

I find no fault that Sir Alexander Cockburn does not agree with me, and with most of the world outside of England, as to the force of the evidence which was presented respecting these points. That is a subject on which persons may honestly differ. But I must be permitted to express some surprise that a lawyer of his deservedly great reputation should have made such a disagreement the cause of totally unfounded allegations against the Case of the United States and its author.

With the exception of these personal remarks, this long dissenting opinion (twice the length of the American case) adds little or nothing new to the arguments previously put forth by Great Britain in vindication of her course toward the United States. There are several material errors in its statements of facts, but I shall not follow its example of injustice in attributing them to design. All right-thinking persons will heartily echo the wish with which the paper closes, “that in the time to come no sense of past wrong unredressed will stand in the way of the friendly and harmonious relations which should subsist between two great and kindred nations.”

Conclusion.
The results of the tribunal a vindication of the policy or arbitration. Thus, surrounded by difficulties, which at one time seemed insuperable, this great cause has reached its conclusion. Nations have, ere now, consented to adjust by arbitration questions of figures and questions of boundaries; but the world has had few, if any, earlier examples of the voluntary submission to arbitration of a question in which a deep-seated conviction of injuries and wrongs which no possible award could compensate, animated a whole nation. It is out of such sentiments and feelings that wars come. The United States elected the path of peace. Confident of receiving justice, they laid the story of their wrongs before an impartial tribunal. This story, so grievous in its simple truthfulness, threatened for a time to break up the peaceful settlement which the parties had promised each other to make. Notwithstanding all obstacles, however, the great experiment has been carried to a successful end; and hereafter it cannot be denied that questions involving national sentiment may be decided by arbitration, as well as questions of figures.

The commander who had been permitted, by Providence, to guide some of the greatest military events in history, has thus, in civil life, assisted in presenting to the nations of the world the most conspicuous example of the settlement of international disputes by peaceful arbitration.

It is within my personal knowledge that your own counsels have also had a large share in shaping this great result.

I have, &c.,

J. C. BANCROFT DAVIS.

Hon. Hamilton Fish,
Secretary of State.

1. “He [Lord Granville] then said to me that in his note of the 3d he had stated the views of Her Majesty’s government as to indirect claims; that there were other portions of [the] American Case they regret, and some of which appear to introduce matters not germane to reference; that he has not been able to consult cabinet here, but is individually prepared to recommend to them, and he thinks with reasonable expectation of success, that they should not press for withdrawal of American Case if the Government of the United States,” &c., &c.—(Correspondence respecting Geneva Arbitration, page 5.)