Page images

judgment of the Tribunal, properly distinguishable from the general expenses of the war carried on by the United States."

Here, the major premise is assumed as already determined or admitted, namely, that “the general expenses of the war” are not to be made the subject of award. Why not? Because such expenses are in the nature of indirect losses? No such notion is intimated. Because the claim, as being for indirect losses, is not within the purview of the Treaty? That is not said or implied. Because such a claim is beyond the jurisdiction of the Tribunal? No: for the Tribunal takes jurisdiction and judges in fact. The question then remains,--why is a claim for losses pertaining to the general expenses of the war to be rejected ?

There can be no mistake as to the true answer. It is to be found in the preliminary opinion expressed by the Arbitrators.

The Tribunal, in that opinion, says that the controverted [the so-called indirect] claims “ do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations." Why does not the injury done to a nation by the destruction of its commerce, and by the augmentation of the duration and.expenses of war, constitute "a good foundation for an award of compensation or computation of damages between nations?” The answer is that such subjects of reclamation are “not properly distinguishable from the general expenses of war.”

Let us analyze these two separate but related opinions, and thus make clear the intention of the Tribunal. It is this:

The injuries done to a Belligerent by the failure of a Neutral to exercise due diligence for the prevention of belligerent equipments in its ports, or the issue of hostile expeditions therefrom, in so far as they are injuries done to the Belligerent in its political capacity as a nation, and resolving themselves into an element of the national charges of war sustained by the Bel: ligerent in its political capacity as a nation, do not,

upon the principles of international law applicable to such cases" (excluding, that is, the three Rules), constitute “good foundation for an award of compensation or computation of damages between nations."

Such, in my opinion, is the thought of the Arbitrators, partially expressed in one place as to certain claims of which they did not take jurisdiction, and partially in another place as to others of which they did take jurisdiction,—the two partial statements being complementary one of the other, and forming to. gether a perfectly intelligible and complete judgment as to the whole matter.

The direct effect of the judgment as between the United States and Great Britain, is to prevent either Government, when a Belligerent, from claiming of the other, when a Neutral,“ an award of compensation or computation of damages” for any losses or additional charges or“ general expenses of war," which such Bel. ligerent, in its political capacity as a nation, may suffer by reason of the want of due diligence for the

prevention of violation of neutrality in the ports of such Neutral. That is to say, the parties to the Treaty of Washington are estopped from claiming compensation, one of the other, on account of the national injuries occasioned by any such breaches of neutrality, not because they are indirect losses,—for they are not,—but because they are national losses, losses of the State as such. And each of us


in controversies on the same point with other nations, allege the moral authority of the Tribunal of Geneva.

But, while national losses incurred by the Bellig. erent as a State in consequence of such breaches of neutrality are not to be made the subject of “compensation or computation of damages," all private or individual losses may be, under the qualifications and limitations as to character and amount found by the Tribunal, and which will be explained in treating of that part of the Decision.

These conclusions are the inevitable result of careful comparison of the several claims with the several decisions. True it is, the national claims of indemnity for the cost of the pursuit of the Confederate cruisers happened to come before the Tribunal associated with strictly private claims, and the strictly private claims on account of payment of extra war premiums associated with national claims; but these are perfectly immaterial incidents, which do not in any way affect appreciation of the opinions of the Tribunal.

Another subject of reflection suggests itself, in comparing the respective decisions on national and

on private losses, produced by the failure of a Neutral to maintain neutrality.

We asserted the responsibility of Great Britain for the acts of such of the Confederate cruisers as came within either of the three Rules, just as if those cruisers had been fitted out or supplied by the British Government, to the extent at least of the prizes of private property which those cruisers made. That was the theory of imputed responsibility. Any cruiser enabled to make prizes by the fault of the British Government was to be regarded as pro tanto a British cruiser, and Great Britain, in the words of the British Counter-Case, “ treated [in that respect as a virtual participant in the war.” The Tribunal seems to have so held; that is, in regard to the losses of individual citizens of the United States.

Moreover, it was argued on both sides, as by common consent, that the question between the two Governments was one of war, commuted for indemnity.

“Her Great Britain's acts of actual or constructive complicity with the Confederates,” says the American Argument,

gave to the United States the same right of war against her, as in similar circumstances she asserted against the Netherlands.

“We, the United States, holding those rights of war, halve relinquished them to accept instead the Arbitration of this Tribunal. And the Arbitration substitutes correlative legal damages in the place of the right of war."

This position is clearly stated in the British Counter-Case as follows:

“Her Majesty's Government readily admits the general

[ocr errors]

"principle that, where an injury has been done by one nation “to another, a claim for some appropriate redress arises, and “that it is on all accounts desirable that this right. should be “satisfied by amicable reparation instead of being enforced by war. All civil society reposes on this principle, or on a prin

ciple analogous to this; the society of nations, as well as that “which unites the individual members of each particular com6 monwealth.”

[ocr errors]
[ocr errors]


Now the capture of private property on the seas, it can not be denied, is one of the methods of public

Whether such capture be made by letters of marque, or by regular men-of-war, is immaterial; in either form it increases the resources of one Belligerent and it weakens those of the other; and if the Neutral fits out [or, in violation of neutral duty, suffers to be fitted out in its ports, which is the same thing] cruisers in aid of one of the Belligerents, such Neutral becomes a virtual participant in the war, not only prolonging it and augmenting its expenses, but perhaps producing decisive effects adverse to the other Belligerent. These are the national losses, or, as the British Government insists, the indirect losses, inflicted by neglect or omission to discharge the obligations of neutrality.

In deciding that such losses,—that, in general, the national charges of war,-can not by the law of nations be regarded as “good foundation for an award of compensation or computation of damages between nations,” the Tribunal in effect relegated that question to the unexplored field of the discretion of sovereign States.

Claims of indemnity for the national losses grow

« PreviousContinue »