The history of the Alabama claims - Continued. page 4
The tribunal, after the lodgment of the arguments, adjourned to the 15th July. On that day M. Staempfli produced the programme before referred to, and proposed to take up the case of some one vessel, and consider whether on that vessel Great Britain was responsible to the United States. The British arbitrator opposed this, and moved that the tribunal should first of all discuss and settle the general principles by which it would be guided in its decision. But the other arbitrators were of the opinion of M. Staempfli, and Sir A. Cockburn's motion was overruled. The case of the Florida was then entered upon. Sir A. Cockburn first read his opinion on this case; then Mr. Adams, Baron d'Itajuba, and Count Sclopis successively read their opinions. On the 19th July the case was adjudged, the tribunal deciding by a majority of four to one that Great Britain had been guilty of a want of due diligence in regard to the Florida. After a short adjournment the tribunal met again on the 25th July. On the motion of the Baron d’Itajuba, the counsel for Great Britain were requested to give in a statement in elucidation of the following three points: -
The statement required was handed in a few days afterwards. Meantime the case of the Alabama was proceeded with, being treated in the same way as that of the Florida. The arbitrators all agreed that Great Britain had failed in due diligence in regard to this vessel, but Sir A. Cockburn came to this conclusion on grounds somewhat different from those which commended themselves to the majority of the arbitrators. The Baron d’Itajuba at the time expressed his adhesion to the statement of Sir A. Cockburn - so, at least, it is stated by Mr. Cushing; but in the final award he adhered to the views of the majority respecting the Alabama. Then the cases of the Shenandoah, the Georgia, and other vessels were successively examined. Separate decisions having been arrived at respecting all the vessels for whose proceedings it was sought to hold Great Britain responsible, the tribunal voted on the 26th August, the British arbitrator alone dissenting, to deliberate thenceforward with closed doors, as it was now its object to consider its award. The deliberations of the tribunal had never been public from the first; that is to say, reporters for the press, and all other persons not officially connected with the arbitration, had been excluded; but the agents and counsel on both sides had, by the invitation of the arbitrators, remained in attendance. These last also were now excluded, during the period from the 26th August to the 14th September.
On Saturday the 14th September, the tribunal met, this time with open doors, for its thirty-second and last session. The Hall of Conference was crowded with ladies, English and American spectators, and distinguished natives of Geneva. The President produced the Act of Decision, and directed the Secretary to read it in English, which was done. The originals of the act or award, in duplicate, were signed by four of the arbitrators, Count Sclopis, M. Staempfli, the Viscount d’Itajuba, and Mr. Adams, and a copy delivered to each of the agents. A third original, similarly subscribed, was destined to be preserved among the archives of the Council of State of Geneva. Sir A. Cockburn declined to sign the award, and presented a statement of his reasons for dissenting from it, which the tribunal ordered to be received and recorded as an annex to the protocol of that day's proceedings. Then Count Sclopis, in a final address, declared the labours of the arbitrators to be terminated, and the tribunal dissolved. Salvos of artillery greeted the announcement that the blessed labours of the "peacemakers " had had a successful issue, and the flags of Switzerland and Geneva were unrolled between the banners of England and the United States.
Mr. Cushing indulges in terms of unmeasured denunciation when speaking of the reasons for dissent submitted by the Lord Chief Justice. The act of that distinguished and able judge he describes as " a dishonourable imposition on the tribunal and on both Governments;" he declares "that 'the reasons are "false as reasoning," "a nisi prius argument," full of " unjudicial violence and extravagance," &c., &c. So voluminous an argument, Mr. Cushing thinks, ought to have been laid before the arbitrators while the proceedings were pending, and not reserved to the end. But separate opinions were duly offered by the Lord Chief Justice as the arbitration proceeded; nor can we see anything inconsistent with his judicial position in his desire - like any other judge who dissents from the opinion of the majority of his brothers on the bench - to support his dissent from the award by a detailed and fully reasoned statement. To say that lie treats the matter like an advocate seems to us untrue. He finds Great Britain guilty of negligence in regard to the escape of the Alabama; and, in the case of the Florida, although he will not go to that length, he says that in his opinion she ought to have been condemned by the Admiralty Court at Nassau, and that there was " a miscarriage of justice in her acquittal." As to the Shenandoah, he certainly says that he "cannot too strongly express his dissent from the opinion of the majority;" but if he was right and they were wrong, the expression of his decided opposition derogated in no way from his judicial character. The highest authorities in England regard Lord Chief Justice Cockburn's protest as a piece of masterly argument, expressed in a lofty strain of judicial eloquence.
The reader may find the following analysis of the award useful. After the usual formal recitals, the tribunal states that, having impartially and carefully examined the cases, counter cases, arguments, and all other communications laid before them on the part of the two Governments, -
" Whereas the arbitrators are bound by the Treaty of Washington to direct their judgment by the three rules specified in Article VI. of that treaty, and by such principles of international law not inconsistent therewith as the arbitrators shall determine to have been applicable to the case;
" And whereas 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 fulfil the obligations of neutrality on their part;
* * * * * * * * * *
"And whereas the effects of a violation of neutrality, committed by means of the construction, equipment, and armament of a vessel, are not done away by any commission which the Government of the belligerent Power benefited by the violation of neutrality may afterwards have granted to that vessel; and the ultimate step, by which the offence 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;
"And whereas the privilege of exterritoriality 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;
" And whereas the absence of a previous notice cannot be regarded as a failure in any consideration required by the law of nations in those cases in which a vessel carries with it its own condemnation;
" And whereas, in order to impart to any supplies of coal a character inconsistent with 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 places, which may combine to give them such character;
"And whereas Great Britain was guilty of a want of due diligence in regard to the building, escape from her jurisdiction, and arming of the Alabama;
" And whereas, in despite of the violations of the neutrality of Great Britain, committed by the Alabama, this same vessel... 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 the 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 fulfil the duties prescribed in the first and the third of the rules established by the sixth article of the Treaty of Washington."
Upon somewhat similar, but more special grounds, the tribunal, in the case of the Florida, was of opinion, by a majority of four voices to one, that Great Britain had failed to fulfil the duties prescribed by all three rules. The finding with regard to the Shenandoah we quote in extenso: -
" 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 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 to fulfil any duty prescribed by the three rules or by international law, in respect of the Shenandoah, previous 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."
In the next paragraph the tribunal decides unanimously that the tenders to the Alabama and Florida " must necessarily follow the lot of their principals, and be submitted to the same decision which applies to them respectively."
Then follow paragraphs in which the tribunal exempts Great Britain from responsibility, so far as relates to the vessels called the Retribution, the Georgia, the Sumter, the Nashville, the Tallahassee, and the Chickamauga.
The costs incurred by the American Government in pursuit of the cruisers, being the second head of the claims of the United States, are then disallowed, as not properly distinguishable from the general expenses of the war. The personal claims, also included among the direct losses by the United States, and which were founded on an assumed loss of profits and wages to American citizens through the captures effected by the cruisers, were disallowed by the tribunal, on the ground that " prospective earnings cannot properly be made the subject of compensation, inasmuch as they depend in their nature upon future and uncertain contingencies."
Having thus passed judgment upon the various claims submitted to it, the tribunal proceeds to make its award of compensation. Discreetly withholding the calculations by which it has attained the result, the tribunal merely states that the same losses must not be paid for twice over, and that interest must be allowed at a reasonable rate; and then, using the authority conferred upon it by the seventh article of the treaty to award a sum in gross, by a "majority of four voices to one, awards to the United States the sum of 15,500,000 dollars 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."
All claims known under the name of the " Alabama Claims" are then declared to be fully, perfectly, and finally settled, and the signatures of the four arbitrators follow, the British arbitrator having, as was mentioned before, refused to sign.
We have now brought the history of the Alabama Claims, and of the negotiations and other international transactions which grew out of them, to a termination. To a citizen of the United States it is a narrative which must convey almost unqualified satisfaction. In spite of some recklessness of assertion on the part of its agents, and some measure of extravagance in the extent to which it carried its claims, it must be said of the American Government that it knew what it wanted, and pursued its object temperately and steadily, with a sincere and. laudable desire to avoid the calamity of war, but with a firm resolution never to desist from the prosecution of its claims until it had obtained redress,---By the award of the arbitrators this persistence was justified in the face of Europe and of the world, and we cannot wonder if the 14th of September was to an American citizen a day of proud and joyful emotion. The feelings of Englishmen were of a mixed nature. All rejoiced that the causes of difference between two nations which have every motive to be friends were removed; but some people in England could not but feel that the finding of the tribunal was not very honourable to the nation, which had repudiated its liability for certain acts and omissions, which now were declared by an independent tribunal to have been culpable and injurious. How, then, had this English nation been brought to such an undesirable position? Those who took this view found the reasons, partly in the wrongful acts of British subjects, violating their country's neutrality during the war for the sake of gain, partly in a series of mistakes committed by our Government. First of all, the lax administration of Earl Russell during the war led to the abuse of our neutrality in the escape of war-vessels which ought to have been better watched, and prevented the adoption of active measures stringent enough to repress the evil. Secondly, it was a great error on the part of Earl Russell to reject peremptorily as he did the first application of the American Government for redress. Thirdly, the plan of arbitration agreed to in 1868 was abandoned by Mr. Gladstone's Government, and a new plan accepted which had not the advantages of the first. Under the Derby-Johnson convention the reference to arbitration was limited; the arbitrators were only to be called in to decide those points which the commissioners on both sides should by common consent refer to them. An unlimited reference of all the American claims to arbitration seemed to imply (so those who objected to the arbitration argued}- - first, an incapacity on the part of the British Government, to form and hold a decided opinion as to the plain right and wrong of cases where they had all the materials and every facility for forming a correct judgment; secondly, the decision by foreigners of points affecting the honour and good faith of British officials in distant countries, which no one could so well judge of, or was so bound to uphold, as the British Government itself. Fourthly, from the primary error of consenting to an unlimited arbitration flowed naturally the error of submitting the case of the Shenandoah to the decision of the tribunal. In the facts connected with the transformation of that vessel into a cruiser, and her departure from England, the non-liability of England to censure was recognised unanimously by the arbitrators. But they found, by a majority of three to two, that there was negligence on the part of the Melbourne authorities, and condemned Great Britain accordingly. Now our Government knew perfectly well that the Melbourne Government had not been negligent, and deserved no censure; and it was neither fair to the authorities -there, nor consistent with the dignity of this country, to allow their conduct to be called in question. - Some of the arbitrators do not seem to have understood English manners or the English language sufficiently to -estimate aright the intentions and acts of the Melbourne Government. We have seen (page 514) that the Executive Council decided that Lieutenant Waddell should be " requested to reconsider " his determination not to allow his ship to be searched, and that meantime the permission for repairs was suspended. The council made use of this expression, partly because they were not certain of the law, partly because it was a courteous way of giving time to the commander to reflect, under the pressure of the suspension, on the consequences of his conduct. M. Stsempfli describes this by the words, "Decision du conseil de faire prier [the italics are M. Staempfli's] Waddell de revenir sur sa resolution " - " Decision of the council to cause Waddell to be begged to alter (or, recede from) his resolution." M. Staempfli no doubt believed himself to be rendering the English words correctly; but we see that his translation in fact gives them a turn which they have not in the original. Again, he says that the suspension was withdrawn " sur les simples representations de Waddell;" but the documents in his hands proved that this was not so. A reference to our account of the Shenandoah's stay at Melbourne, a few pages back, will show what actually occurred. Many other instances of extraordinary inaccuracy in M. Staempfli's judicial opinions are cited by the Lord Chief Justice.
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