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treaty as submitted to the tribunal are hereby fully, perfectly, and finally settled.'

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"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:

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"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.'

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"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

use in order to prevent within its jurisdiction certain classes of acts, from which harm might accrue to foreign states or their citizens, must always (unless specifically determined by usage or agreement) be dependent, more or less, on the surrounding circumstances, and can not be defined with precision in the form of a general rule. It would commonly, however, be unreasonable and impracticable to require that it should exceed that which the governments of civilized states are accustomed to employ in matters concerning their own security or that of their own citizens.'

"The tribunal in its award said:

"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 the circumstances out of which the facts constituting the subjectmatter 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 day of May, 1861.'"

Davis, Notes, Treaty Volume (1776-1887), 1363–1365.

For further discussions of the phrase "due diligence," see Moore, Int.
Arbitrations, I. 572, 610, 612, 654; IV. 4057-4082.

The three rules of the treaty of Washington were at the very outset discredited in England by the declaration inserted in the treaty that Her Majesty's Government, while agreeing to them as rules of decision, could not assent to them as a statement of principles of international law which were in force at the time when the Alabama claims arose. As the result of this declaration the view was generally accepted, in spite of the opinions which Sir Roundell Palmer and others had expressed to the contrary, that the rules as a matter of course imposed upon Great Britain as a neutral new and intolerable burdens; and when the adverse award was rendered it was generally ascribed to this cause, though it was also supposed that the arbitrators had in their award so interpreted the rules as to make them even worse than they were in their naked form. Nor was indiscriminate criticism of this kind confined to England. In the United States adherents of the theory that a loose and nominal neutrality, gauged by convenience and inclination, is the kind most conducive to international peace, as well as those who, while taking a more rigid view of the duties of neutrality, thought the rules too sweeping, began to take alarm and to utter warnings against making the duties of neutrals so onerous as to render the state of belligerency preferable to that of neutrality. And yet it is difficult to find among these utter

ances a serious attempt to establish specific objections either to the rules or to the award.

Prof. E. Robertson, referring in the Encyclopædia Britannica to the three rules and the award, says:

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These rules, which we believe to be substantially just, have been unduly discredited in England, partly by the result of the arbitration, which was in favour of the United States, partly by the fact that they were from the point of view of English opinion ex post facto rules, and that the words defining liability (due diligence') were vague and open to unforeseen constructions; for example, the construction actually adopted by the Geneva tribunal that due diligence ought to be exercised in proportion to the belligerent's risk of suffering from any failure of the neutral to fulfil his obligations."

These observations are very fully sustained by the opinions of publicists. At the session of the Institute of International Law at Geneva in 1874 a report was made by a commission, of which Bluntschli was reporter, which had been appointed to examine the three rules. The principal paper was presented by Calvo, who, after examining international transactions and the legislation of particular states, and citing the opinions of Klüber, G. F. de Martens, Fiore, Pando, Bello, De Cussy, Hautefeuille, Heffter, Bluntschli, Gessner, Hall, Ortolan, Massé, Halleck, and other publicists, concluded that "incontestably the three rules do not constitute a new obligation in the law of nations ; but on the contrary they merely affirm preexisting principles consecrated for many years by numerous acts and by the legislation and practice of nations."

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Professor Lorimer, of Edinburgh, assailed the rules on the significant ground that neutrality itself was by no means a constant duty, but altogether circumstantial. He also suggested that by cutting off

@ XIII. 196, Article International Law.

These observations are in striking contrast with those of Sir Henry Maine (International Law, 216), who declares that Great Britain " was penally dealt with for a number of acts and omissions, each in itself innocent." The grounds of this singular statement are not disclosed. It could hardly have been made as the result of an examination of the cases of the Alabama, the Florida, and the Shenandoah, which were the only vessels in respect of which Great Britain was held liable. On September 19, 1872, The Nation (XV. 180), referring to the Geneva award, very pertinently said: "No hardship or inconvenience can ever result to any government from being held bound to prevent what England permitted to occur with regard to the fitting out of that ship [the Alabama]. . . . The case of the Oreto, afterward the Florida, was nearly as bad. . .. The Shenandoah was received at Melbourne with welcome and rejoicings which it is no exaggeration to call wild. . . . The tribunal imposes no new or heavy burden on neutrals in deciding that what occurred at Melbourne made the English Government liable for all the damage done by the Shenandoah afterwards."

c Rev. de Droit Int. VI. 453.

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