LORD COCKBURN'S VINDICATIONS

Grey River Argus, Volume XII, Issue 1385, 8 January 1873, Page 2

LORD COCKBURN'S VINDICATIONS

Lord Chief Justice Cockburn has published his weighty "Reasons" for dissent from the award of the Geneva Tribunal in the Gazette, and the statement occupies no less than 253 pages of close print. These " Reasons" are received with interest scarcely inferior to that accorded to the Judgment itself. Hi 3 acquittal , of England on most, of the charges will at least act as a salve to our national pride, which was a little wounded by some parts of the award, even though we fully acknowledge its substantial Justice, and its authority as a settlement. The statement contains a masterly and elaborate vindication of the British Government from the charge of baviog exhibited "studied unfriendliness " towards the United States Government during the civil war, and made England the navy yard of the Confederate States," though but two ships were actually built in our yards. With the treaty, as well as his colleagues' application of it to the particular charges, Sir A. Cockburn finds fault. He expresses regret that we ever consented to be tried by any rules or principles save those which were in force at the time of our alleged offences. He is sorry that the framers of the treaty did not define the vague and uncertain term, "due diligence," as well as the further " principles of international law . not inconsistent with the rules laid down." The result of this omission was that if international law did not clear up the matter— and one of the arbitrators, M. Staempfli, seems to have horrified our representative by his positive opinion that it did not exist — the arbitrators" were necessitated to trust to their own unaided instinct of right and wrong. At the beginning of the document the Chief Justice pleads powerfully for the freedom of neutrals in time of war. He says: — " The authors who desire to put further restraints on the free commerce of neutrals than international law has done appear to me to think too much of the interests of belligerents, who are the disturbers of the world's peace, and to be too unmindful of the interests of neutral nations, who are simply seeking occupation for their industry and commerce, indifferent by ! whom they are employed." He cites with approbation Jefferson's saying, that "it would be hard in principle, and impossible in practice," to prevent the citizens of a neutral Power vending and exporting arms to a belligerent State. But, of course, when a hostile expedition is fitted out and about to be despatched from our shores, it is our duty to exercise *' due diligence 1 ' to prevent its escape — to "possess reasonable means to prevent offences, and use such means diligently and honestly for the benefit of those who are entitled to their protection." Now, our Foreign Enlistment Act of 1819, tie means in question was reasonably rigorous ; that it did not work perfectly was no. flagrant offence. At this part of the argument, and against the American advocate, Sir A. Cockburn appeals to the. conduct of America towards Spain and Portugal, observing that "after these details it can admit of no doubt that the history of the United States has been marked, not only by the most systematic privateering, but also by a series of hostile expeditions carried out in the most determined manner by American citizens against the the territories of neighboring and friendly nations." From numerous, considerations he deduces the principle that, the equipping of vessels being only an offence against municipal law and not against the law of nations, we were bound to use a lower degree of "diligence" than if we had been responsible to a foreign State. Now, . applying this principle in the first instance to the , Florida, he decides that, with the insufficient information in our possession at the time of the sailing of that vessel from Liverpool, it was impossible to seize her in accordance with English rules of cvi/ dence. He cannot agree that we should have changed our laws upon .the spot in order to please America, or that America' had any right to expect us to do so -while

her own laws remained unaltered. As to the Shenandoah, he Bays.— -"She had been neither equipped nor armed, nor specially adapted, wholly or in part, for warlike use in British territory, nor was the sale of her to a belligerent on the high seas any violation of the rights of Great Britain as a neutral. To have seized her therefore would have been utterly unjustiable." His lordship very strongly opposed the payment of interest, as will be seen in the subjoined resume of his decision. "The result is that, while I differ from the grounds on which the decision of the Tribunal In the case of the Alabama is founded, nevertheless, owing to the special circumstances to which I have hereinbefore called attention, I concur in holding Great Britain liable in respect of that ship. With respect to the Florida, on the best judgment I can form upon a review of all the facts, the charge of want j of due diligence is not made out. I cannot concur in thinking that anything wa3 left undone by the Government of her Majesty which could be reasonably expected of them, or the omission of which can justly subject them to the charge of want of due diligence and care. I cannot agree that the law of Great Britain should have been changed because of the breaking out of the civil war. First, because the existing law was adequate to all that could reasonably be expected ; secondly, because, at all events, there was at the time no reason for believing it other than sufficient ; lastly, because even if the law might have been improved and the hands of the Executive strengthened with advantage, the United States could have no possible right to expect any amendment of the British law so long as their own remained unaltered. As to the Shenandoah, X cannot express too strongly my dissent from the decision of the majority. Not concurring in the decision as to the Florida and Shenandoah, I cannot, of course, concur in awarding the sum which is to be paid on account of the damage done by them. Even if this were otherwise, I should still hold the amount awarded greater than it should have been. Lastly, under -the very special circumstances out of which these claims have arisen, it appears i^o me that the allowance of interest was uncalled-for and unjust." Notwithstanding these conclusions, his lordship hopes that the award will be accepted by the British people with submission and respect, and that the United States will see, in the consent of Great Britain to submit these claims to peaceful arbitration, an honest desire on her part to atone for any past errors or omissions, and will feel that all just cause for grievance is now removed, "so that in the time to come no sense of past wrong unredeemed will stand in the way of the friendly and harmonious intercourse which should subsist between two friendly nations." This temperate, firm, and luminous judgment may be open to criticism, but it will be sure to rank among the most famous judicial productions, and will often be cited with admiration and respect.