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the principles of international law; nor can the fact of the entry of the Florida into the confederate port of Mobile, and of its stay there during four months, extinguish the responsibility previously to that time incurred by Great Britain:
"For these reasons the tribunal, by a majority of four voices to one, is of opinion that Great Britain has in this case failed, by omission, to fulfil the duties prescribed in the first, in the second, and in the third of the rules established by Article VI of the treaty of Washington.
"And whereas, with respect to the vessel called the Shenandoah, it results from all the facts relative to the departure from London of the merchant-vessel the Sea King, and to the transformation of that ship into a confederate cruiser under the name of the Shenandoah, near the island of Maderia, 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 with 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 the Tuscaloosa (tender to the Alabama), the Clarence, the Tacony, and the Archer (tenders to the Florida), the tribunal is unanimously of opinion that such tenders or auxiliary vessels, being properly regarded as accessories, must necessarily follow the lot of their principals, and be submitted to the same decision which applies to them respectively.
"And so far as relates to the vessel called Retribution, the tribunal, by a majority of three to two voices, is of opinion that Great Britain has not failed by any act or omission to 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, the Nashville, the Tallahasee, 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, the Jefferson Davis, the Music, the Boston, and the V. II. Joy, respectively, the tribunal is unanimously of opinion that they ought to be excluded from consideration for want of evidence.
"And whereas, so far as relates to the particulars of the indemnity claimed by the United States, the 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 can not properly be made the subject of compensation, inasmuch as they depend in their nature upon future and uncertain contingencies:
The tribunal is unanimously of opinion that there is no ground for awarding to the United States any sum by way of indemnity under this head.
"And whereas, in order to arrive at an equitable compensation for the damages which have been sustained, it is necessary to set aside all double claims for the same losses, and all claims for gross freights,' so far as they exceed 'net freights;'
"And whereas it is just and reasonable to allow interest at a reasonable rate;
"And whereas, in accordance with the spirit and letter of the treaty of Washington, it is preferable to adopt the form of adjudication of a sum in gross, rather than to refer the subject of compensation for further discussion and deliberation to a board of assessors, as provided by Article X. of the said treaty:
"The tribunal, making use of the authority conferred upon it by Article VII. of the said treaty, by a majority of four voices to one, awards to the United States a sum of $15,500,000 in gold, as the indemnity to be paid by Great Britain to the United States, for the satisfaction of all the claims referred to the consideration of the tribunal, conformably to the provisions contained in Article VII. of the aforesaid treaty.
"And, in accordance with the terms of Article XI. of the said treaty, the tribunal declares that all the claims referred to in the H. Doc. 551-vol 7—68
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.""
Award of the Geneva Tribunal, signed at the Hôtel de Ville, of Geneva, Switzerland, Sept. 14, 1872, by Charles Francis Adams, Count Frederick Sclopis, Jacques Stämpfli, and Vicomte D'Itajubá, Papers relating to Treaty of Washington, IV. 49, 50.
As appears by the award, Sir Alexander Cockburn, though he concurred in allowing damages for the depredations of the Alabama, did not concur in all the reasoning of the other arbitrators. He therefore did not sign the award, but filed a paper containing an exposition of his reasons for dissenting from the award. (Moore, Int. Arbitrations, I. 652, 659.)
"In the arbitration, which took place at Geneva, the main contentions on each side, and the decisions, so far as any were given, were as follows:
"I. The United States contended that the three rules were in force before the treaty was made. Great Britain denied this, both in the treaty and in the papers submitted at Geneva. In the British counter case it was said: These rules go beyond any definition of neutral duty which, up to that time, had been established by the law or general practice of nations.' The tribunal did not notice this point; but Mr. Gladstone, in the House of Commons, on the 26th day of May, 1873, said with respect to it: Were they, as regards us, an ex post facto law? I say they were not. We deemed that they formed part of the international law at the time the claims arose.'
"II. The United States contended that the Government of Great Britain, by its indiscreet haste in counseling 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. They also contended 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 Cay, 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. They further contended that 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 were offered, established culpability in the government itself.
"The mode of stating the contentions on each side in these proceedings was peculiar. The two parties were, by the treaty, required to deposit their cases simultaneously; also in like manner their countercases (each of which was to be a reply to the case of the other), and their arguments on the cases, counter cases, and evidence. When, therefore, the theory of the attack in the case of the United States was developed, the theory of the defence in the case of Great Britain was developed simultaneously. In respect of the necessity of bringing home to the government itself the acts of the subordinates, it was identical in theory with the case of the United States. It said:
"A charge of injurious negligence on the part of a sovereign government, in the exercise of any of the powers of sovereignty, needs to be sustained on strong and solid grounds. Every sovereign government claims the right to be independent of external scrutiny or interference in its exercise of these powers; and the general assumption that they are exercised with good faith and reasonable care, and that laws are fairly and properly administered an assumption without which peace and friendly intercourse could not exist among nations-ought to subsist until it has been displaced by proof to the contrary. It is not enough to suggest or prove that a government, in the exercise of a reasonable judgment on some question of fact or law, and using the means of information at its command, has formed and acted on an opinion from which another government dissents or can induce an arbitrator to dissent. Still less is it sufficient to show that a judgment pronounced by a court of competent jurisdiction, and acted upon by the Executive, was tainted with error. An administrative act founded on error, or an erroneous judgment of a court, may, indeed, under some circumstances, found a claim to compensation on behalf of a person or government injured by the act or judgment. But a charge of negligence brought against a government can not be
supported on such grounds. Nor is it enough to suggest or prove some defect of judgment or penetration, or somewhat less than the utmost possible promptitude and celerity of action, on the part of an officer of the government in the execution of his official duties. To found on this alone a claim to compensation, as for a breach of international duty, would be to exact, in international affairs, a perfection of administration which few governments or none attain in fact, or could reasonably hope to attain, in their domestic concerns; it would set up an impracticable, and therefore an unjust and fallacious standard, would give occasion to incessant and unreasonable complaints, and render the situation of neutrals intolerable. Nor, again, is a nation to be held responsible for a delay or omission occasioned by mere accident, and not by the want of reasonable foresight or care. Lastly, it is not sufficient to show that an act has been done which it was the duty of the government to endeavor to prevent. It is necessary to allege and to prove that there has been a failure to use, for the prevention of an act which the government was bound to endeavor to prevent, such care as governments ordinarily employ in their domestic concerns, and may reasonably be expected to exert in matters of international interest and obligation. These considerations apply with especial force to nations which are in the enjoyment of free institutions, and in which the government is bound to obey, and can not dispense with, the laws.'
"III. It was maintained in the American 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' [p. 158], and that it should be gauged by the character and magnitude of the matter which it may 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' [p. 152].
"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. Due diligence on the part of a sovereign government signifies that measure of care which the government is under an international obligation to use for a given purpose. This measure, where it has not been defined by international usage or agreement, is to be deduced from the nature of the obligation itself, and from those considerations of justice, equity, and general expediency on which the law of nations is founded. The measure of care which a government is bound to