1

almost twice as much as the Case of the United States, the paper dealt in sweeping and oftentimes violent criticisms of men and things, which even Sir Alexander Cockburn's colleagues did not wholly escape. While he described himself in two places as sitting on the tribunal "as in some sense the representative of Great Britain," he deprecated the limitations imposed upon the arbitrators by the rules of the treaty;2 represented Mr. Staempfli as maintaining that "there is no such thing as international law," and that the arbitrators were to proceed "according to some intuitive perception of right and wrong, or speculative notions of what the rules as to the duties of neutrals ought to be;" charged counsel of the United States with "the most singular confusion of ideas, misrepresentation of facts, and ignorance, both of law and history, which were perhaps ever crowded into the same space,” and with affronting the tribunal by attempting to "practice" on its "supposed credulity or ignorance;" and animadverted upon the Case of the United States as seeming "to pour forth the pent-up venom of national and personal hate."5

That Sir Alexander Cockburn deemed it incumbent upon him, as a member of a tribunal judicial in its nature, before which his government was ably represented by an agent and counsel, to adopt the tone of partisan controversy betrayed a defect in judgment as well as in temper. In speaking as a member of the tribunal of arbitration he ought at least to have remembered that the weight which an expression of opinion derives from the judicial position of him who utters it is worse than lost when the speaker proclaims, by word or by act, that he has put off the character of the judge for that of the advocate. No doubt the feeling of resentment which Sir Alexander Cockburn professed, on account of the charges of hostile motives and insincere neutrality made in the American Case, was genuine. But in its Counter Case the British Government distinctly refused to reply to these charges, saying that if they were of any weight or value the proper reply to them would be found in the proofs. If the British Counter Case and the British argument were defective because they were free from vituperation, it was not the place of an arbitrator to attempt to supply the omission. Nor should Sir Alexander Cockburn have for

1 Papers relating to the Treaty of Washington. IV. 286, 313.
2 Id. 231.
+ Id. 286.
5 Id. 311.

3 Id. 233.

gotten that in the case of the Alabama, whose career formed the type, just as her name afforded the description, of the Confederate cruisers and their depredations, the evidence was so overwhelming that he himself, while maintaining that "a mere error in judgment" did not amount to negligence, was compelled to declare that it was "impossible to say that in respect of this vessel there was not an absence of 'due diligence' on the part of the British authorities."1

In this relation it is proper to advert to the Arbitrators' Expres- opinions of the arbitrators on the question of sions as to British British feeling toward the United States durFeeling. ing the civil war. The only arbitrator, except Sir Alexander Cockburn, who undertook specially to discuss this question was Count Sclopis; but there are expressions on various aspects of the subject in the opinions of the other arbitrators. Count Sclopis, while "far from thinking that the animus of the English Government was hostile to the Federal Government during the war," said that "there were moments when its watchfulness seemed to fail and when feebleness in certain branches of the public service resulted in great detriment to the United States." The circumstances during the first years of the war-the establishment of Confederate agencies in England, the presence and reception of Confederate representatives, the interests of great commercial houses at Liverpool where opinion was openly pronounced in favor of the South, and public expressions, even by the Queen's ministers, as to the improbability of the reestablishment of the Union-were, he thought, such as must have influenced, if not the government itself, at least a part of the population. Under

1

1 Papers Relating to the Treaty of Washington, IV. 459, 460. Mr. Cushing, in his Treaty of Washington, 128, states that Sir Alexander Cockburn, as soon as the tribunal was declared dissolved, abruptly left the room "without a word or sign of courteous recognition for any of his colleagues," and "disappeared in the manner of a criminal escaping from the dock, rather than of a judge separating, and that forever, from his colleagues of the bench;" and he then proceeds to characterize Sir Alexander's conduct and "dissenting opinion" in terms of which the foregoing comparison furnishes an example. A leading journal, in a review of Mr. Cushing's book, observed that, while the British arbitrator's conduct was irregular and unsuitable, Mr. Cushing might have shown the fact without resorting to "invectives." (Rev. de Droit Int. VI. 154.) Sir Alexander's "irregularities" were indeed little commended, but much censured in the London press. (Cushing's Treaty of Washington, 130, et seq.)

these circumstances, and in view of the dangers to which the
United States was exposed in Great Britain and her colonies,
the government should, in his opinion, have fulfilled its duties
as a neutral" by the exercise of a diligence equal to the occa-
sion." 1
As to the existence or nonexistence of unfriendly feel-
ing, Viscount d'Itajubá expressed no opinion; but in speaking
of the duty of a neutral to detain a vessel which had departed
in violation of its neutrality, when such vessel came again
within its jurisdiction, he said: "By seizing or detaining the
vessel the neutral only prevents the belligerent from deriving
advantage from the fraud committed within its territory by
the same belligerent; while, by not proceeding against a guilty
vessel, the neutral justly exposes itself to having its good faith
called in question by the other belligerent."2 Sir Alexander
Cockburn himself, while denying the existence of partiality or
of willful negligence on the part of the British Government,
declared that, "though partiality does not necessarily lead to
want of diligence, yet it is apt to do so, and in a case of doubt
would turn the scale."3 At various places, in the cases of the
Florida, the Alabama, the Shenandoah, and the Retribution,
Mr. Adams resorted to evidences of sympathy with the Con-
federacy on the part of the local officials as an explanation
of the lack of due diligence shown on certain occasions. Espe-
cially is this so in respect of the action of the customs authori-
ties at Liverpool in the cases of the Florida and the Alabama,
and of the authorities in the Bahamas in the cases of the Flor-
ida and the Retribution. But as to the British Government
itself, he expressed the opinion that its failure to adopt ade-
quate measures to prevent the escape of the Florida and the
Alabama from England was due to the conception which it
entertained in the earlier stages of the war, that its obliga-
tions as a neutral were discharged by the pursuit of a passive
policy-a policy that stopped with the investigation of evi-
dence furnished by agents of the United States, and origi-
nated no active measures of prevention. "Much as I may see
cause," said Mr. Adams in his opinion in the case of the Flor-
ida, "to differ with him (Lord Russell) in his limited construc-
tion of his own duty, or in the views which appear in thes
papers to have been taken by him of the policy proper to be
pursued by Her Majesty's government, I am far from drawing

1 Papers relating to the Treaty of Washington, IV. 9.
2 Id. 97-98.

3 Id. 313.

any inferences from them to the effect that he was actuated in any way by motives of ill will to the United States, or indeed by unworthy motives of any kind. If I were permitted to judge from a calm comparison of the relative weight of his various opinions with his action in different contingencies, I should be led rather to infer a balance of good will than of hostility to the United States."1

Attitude of Mr.
Adams.

The attitude of Mr. Adams as a member of the tribunal of arbitration merits more than passing notice. To say that the neutral arbitrators performed their duty with intelligence and impartiality is only to do them justice; but they had no temptation to be partial. But Mr. Adams was appointed by one of the parties to the controversy, and each opinion that he expressed directly affected the interests of his own government. Yet, after following his course through published and unpublished records, from the time of his appointment as arbitrator till he signed the award at Geneva, I venture to say that on no occasion did he betray a spirit of partiality. This fact appears the more remarkable when we consider that the very questions on which it finally became his duty to pronounce judgment were discussed by him through a long and exciting period of contention as the diplomatic representative of the United States.

*

1 Papers relating to the Treaty of Washington, IV. 162. Cobden, in a letter to Sumner of May 2, 1863, touching the fitting out of Confederate cruisers in England, said: "I have reason to know that our government fully appreciates the gravity of this matter. Lord Russell, whatever may be the tone of his ill-mannered despatches, is sincerely alive to the necessity of putting an end to the equipping of ships of war in our harbors to be used against the Federal Government by the Confederates. He was bona fide in his aim to prevent the Alabama from leaving, but he was tricked and was angry at the escape of that vessel. If Lord Russell's despatches to Mr. Adams are not very civil he may console himself with the knowledge that the Confederates are still worse treated." (Am. Hist. Rev. II. 310.) In the same letter Cobden stated that he had urged Lord Russell to be "more than passive in enforcing the law respecting the building of ships for the Confederate government. I especially referred to the circumstance that it was suspected that some ships pretended to be for the Chinese Government were really designed for that of Richmond, and I urged him to furnish Mr. Adams with the names of all the ships building for China and full particulars where they were being built. This Lord Russell tells me he had already done, and he seems to promise fairly. Our government are perfectly well informed of all that is being done for the Chinese."

His conception of his office was expressed in one of his opinions. "The arbitrators," he said, "appear to me at least to have a duty to the parties before the tribunal to state their convic. tions of the exact truth without fear or favor." Guided by a clear, accurate, and discriminating perception, Mr. Adams performed this duty with the utmost fidelity; and at the conclusion of his labors he received the commendation of Her Majesty's government as well as of his own.3

lic.

5

In the United States the award of the triReception of the bunal of arbitration was received with satisAward by the Pub-faction, though during the pendency of the proceedings the course of the government, especially in regard to the presentation of the indirect claims, was made the subject of attacks which the progress of a Presidential contest did not tend to mollify. In England public opinion, as reflected by the press, was somewhat divided, it being influenced, no doubt, as in the United States, to some extent by party feeling. The Times viewed the settlement of the question with profound satisfaction, while the Standard was fierce in denunciation of it." The Telegraph declared that the victory had been magnificent, though it was England that must pay the bill. The Saturday Review thought the result "profoundly mortifying to Englishmen." The Daily News said that the arbitrators had done better for the parties than they could have done for themselves. The Morning Post referred to the whole transaction as "a bungled unsettling settlement." The Morning Advertiser characterized what was said in defense of the treaty and arbitration as "wild, sentimental rubbish."9 The London Observer hailed the award as a triumph of the cause of peace.10 The Nonconformist said that the Geneva arbitration had rendered a service to civiliza

Papers relating to the Treaty of Washington, IV. 228.

2 Papers Relating to the Treaty of Washington, II. 584.

3 Papers Relating to the Treaty of Washington, IV. 546. See, for acknowledgments of the services of the neutral arbitrators, For. Rel. 1872, pp. 109, 320, 648.

Mr. Fish and the Alabama Claims, 104.

5 September 9, 10, 14, 16, 17, 18, 19, 23.

6 September 10, 12, 16, 17, 18.

7 September 9, 16, 17.

8 September 9, 16.

9 September 9.

10 September 8.