DIPLOMATIC CORRESPONDENCE AND FOREIGN RELATIONS. 



243 



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 as- 

 sessors 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 suc- 

 cessful, can be determined only by the final division 

 of the sum. 



It is due to our counsel to state, that in all the pro- 

 ceedings 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. 



The opinions which the neutral arbitrators pre- 

 sented, bear testimony to the sagacity, good judg- 

 ment, 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 undoubted- 

 ly be read with interest. I take the liberty, in clos- 

 ing, to make a few remarks upon the main points at 

 issue, as they are treated in the opinions of the dif- 

 ferent arbitrators. 



1. -Due Diligence. 



We maintained in the case that the diligence of 

 the neutral should " be proportioned to the magni- 

 tude 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 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" 

 (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 com- 

 munication, and Great Britain, with its compact 

 population, its net-work of railways and telegraphs, 

 and its administrative system always under the con- 

 trol of the central government, to an identical stand- 

 ard of active vigilance. On the other side it was 

 said: 



Her Majesty's Government knows of no distinction be- 

 tween more dignified and less dignified powers; it re- 

 garde 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 Eu- 

 rope or America which would be willing to claim or ac- 

 cept any immunity in this respect, on the ground of its 

 inferiority to others in extent, military force, or popula- 

 tion. 



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 impos- 

 sible to define a prion and abstractly an absolute duty 

 of diligence. The thin? to which the diligence relates 

 determines its decree. * * * * As to the measure of ac- 

 tivity in the performance ot the duties of a neutral, I 

 think the following rule should be laid down: that it 

 should he 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. 



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 govern- 

 ments hi exact proportion to the risks to which either 

 of the belligerents may be exposed from a failure to ful- 

 fil the obli-jrations 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. 



2. Toleration of Insurgent Operations in England, 

 and English Feeling against the United States. 



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 defence against the United 

 States. Commissioners representing the Government of 

 Richmond were domiciled in London, and had put them- 

 selves in communication with the English Government. 

 Lord Russell had received these Confederate representa- 

 tives in an unofficial way. The first visit took place on 

 the llth 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 Govern- 

 ment could not but know that great commercial houses 

 were managing the interests of the Confederates at Liver- 

 pool, a town which, from that time, was very openly pro- 

 nounced in favor of the South. In Parliament itself, opin- 

 ions were before long openly expressed in favor of the in- 

 surgents. The Queen's ministers themselves did not dis- 

 guise that, in their opinion, it would be very difficult for the 

 American Union to reestablish itselfasbeiore. * * * * it 

 results from this, in my opinion, that the English Govern- 

 ment found itself, during the first years of the war of se- 

 cession, 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 Govern- 

 ment 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 cer- 

 tain branches of the public service resulted in great 

 detriment to the United States, 



Viscount d'ltajuba 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 advan- 

 tage from the fraud committed within its territory 

 by the same belligerent; while, by not proceeding 

 against a guilty vessel, it exposes^ itself to hamng its 

 good faith justly called in question by the other oelli- 



It would seem from some of Mr. Adams's expres- 

 sions 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 t\yo 

 contending nations. Of him, at least, it mav 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 wlien it comes 



again within the Neutral' >s Jurisdiction, and Effect 



of a Commission upon such Cruiser. 



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 



