Page:1902 Encyclopædia Britannica - Volume 25 - A-AUS.pdf/610

 560

ARBITRATION,

INTERNATIONAL

standard of justice is but another name for international law, that the particular recognized rules were but cases of the application of a more general rule, and that where the particular rules were silent the general rule applied. The practical effect of this contention appears to be that an international tribunal can make new law and apply it retrospectively. In spite of this ingenious argument, which was strenuously opposed by Sir Charles Kussell, the leading counsel for Great Britain, the judgment of the arbitrators was in favour of Great Britain on all points. It only remained for the arbitrators to consider the question of regulation which had also been submitted to them. Upon this point the arguments of the American counsel were allowed their due weight. A close time was appointed for sealing, the use of firearms was forbidden in Bering .Sea, and pelagic sealing was prohibited within sixty miles of the Pribyloff Islands. The award was signed and published on 15th August 1893. The question of damages which had been reserved was ultimately settled in 1897 by a joint commission appointed by the two powers in February 1896, the total amount awarded to the British sealers being $473,151.26. (B.) We pass now to State action on behalf of individuals. The following is an illustration of a dispute of this class, which was settled by arbitration nearly forty years after the occasion which gave rise to it. On the night of 26th The September 1814, during the war between Great “General Britain and the United States, the General ArmArmstrong, an American privateer, fired upon the strong.” boats of a British squadron which had just entered the port of Fayal, an island of the Azores group. The British squadron retaliated next day by cannonading the privateer within the limits of the port, and managed to destroy her. Fayal and its port were then, as now, Portuguese territory, and the United States claimed to be indemnified by the Portuguese Government for the loss of the privateer, on the ground that the local authorities had committed a breach of neutrality in not interfering on her behalf when the British squadron opened fire. By treaty of 26th February 1851, it was agreed to submit this claim to arbitration, and Louis Napoleon, then president of the French Republic, was chosen arbitrator. It was proved that the governor of Fayal was aware on 27th February of what was going on, but it was also proved that his protection had not been invoked by the American skipper until after the firing had commenced, and that he then at once sent a remonstrance to the British captain requiring him to cease hostilities. It was further shown that the guns of the fort were insufficient to allow of an armed intervention by the Portuguese. In these circumstances the arbitrator, while recognizing the principle that a neutral power is bound to make compensation to a belligerent whose property has been lost or destroyed within the neutral jurisdiction by the hostile action of the opposite belligerent, by his award of 30th November 1852 absolved the Portuguese Government from blame (partly on the ground that the appeal to the local authorities was too late, and partly on the ground that the governor had no force sufficient to enable him to interfere with effect). This arbitration had an interesting sequel. When the United States Government failed to obtain redress from the Portuguese, the owners of the privateer demanded it at the hands of their own Government, alleging that by espousing their cause in the arbitration proceedings the United States had admitted the claim against themselves. They succeeded in procuring both the House of Representatives and the Senate of the United States to pass a vote in their favour, but the claim was rejected by the Supreme Court on the grounds that it was bad, both in law and in morals. It is obvious that to have allowed it would have been to make a very awkward precedent. Governments would have to be very shy in future of arbitrating in such cases in the interests of private persons, if whenever the award proved adverse they were bound to compensate their clients out of the national exchequer. A far more famous arbitration on breaches of neutrality took place twenty years afterwards between the United States and Great Britain. It is instructive both from the historical and the legal point of view, and is, therefore, worth stating at some length.

In 1861, as is well known, the southern states of North America seceded from the rest on the slavery question and set up a separate government under President Jefferson Davis. Hostilities The..AIa„ beo-an with the capture of Fort Sumter by the Confeder- bama „ ates on 13th April 1861. On 19th April President Abraham Lincoln declared a blockade of the southern ports. On 14th May the British Government issued a proclamation of neutrality, by which the Confederates were recognized as belligerents. This example was followed shortly afterwards by France and other nations. The blockade of the southern ports was not at first effective, and blockade - running soon became an active industry. The Confederates established agencies in England for the purchase of arms, which they despatched in ordinary merchant vessels to the Bahamas, whence they were transhipped into fast steamers specially constructed for the purpose. But this was not all. In February 1862 they contracted for a gunboat, which they called the Oreto, to be built for them at Liverpool. Mr C. F. Adams, the United States Minister, having brought this circumstance to the notice of the British Government, an inquiry was ordered and the report was that the Oreto was a fast steamer, pierced for four guns and generally suitable for warlike purposes, but that she was destined for a firm in Palermo. This was enough to rouse suspicion, but no positive evidence was obtainable. On 22nd March the Oreto left Liverpool and was next heard of, not at Palermo, but at Nassau in the Bahamas. There she was seized by the Colonial Government, acting upon representations made by the British naval authorities. She was, however, released by the local courts on the ground that there was no conclusive evidence against her. She left Nassau in the company of a British-huilt ship, from which she received her armament at Green Kay, and entered the port of Mobile, whence she afterwards emerged under the name of the Florida as a fully equipped man-of-war commissioned by the Confederate Government. In October 1865 she was captured in Brazilian waters by a vessel of the United States. The case of the Alabama was still more remarkable. _ In June 1862 this ship, originally known as “No. 290,” was being built by Messrs Laird at Birkenhead. She was then nearly completed and was obviously intended for a man-of-war. On 23rd June Mr Adams forwarded to Earl Russell a letter from the United States Consul at Liverpool, giving certain particulars as to her character. This letter was laid before the law officers, who advised that, if these particulars were correct, the vessel ought to be detained. On 21st July sworn evidence, which was supplemented on 23rd July, was obtained and laid before the Commissioners of Customs (who were the proper authorities to enforce the provisions of the Foreign Enlistment Act of 1819), but they declined to move. On 23rd July the same evidence v’as laid before the law officers, wdio advised that there was sufficient ground for detention. By some accident, which has never been satisfactorily explained, but was probably connected with the severe illness of Sir John Harding, the Queen’s Advocate, the papers v'ere not returned till 29th July. Instructions were then issued to seize the vessel, but she had already sailed on the evening of the 28th. Although she remained for two days off the coast of Anglesey, there vras no serious attempt at pursuit. She afterwards made her way to the Azores, where she received her armament, which was brought from Liverpool in two Liitish ships. Captain Semmes there took command of her under a commission from the Confederate Government. After a most destructive career she was sunk off Cherbourg by the Kearsarge on 19th June 1864. Another vessel, the Sea King, which had been employed as a merchant ship, left London in October 1864 and was met at Madeira by the Laurel from Liverpool with men, arms, and officers. Her name was then changed to Shenandoah and the Confederate flag wras hoisted on board her. After a cruise of ninety days, during which she destroyed certain North American vessels, she put into Melbourne on 25th January 1865. In spite of the protest of the United States Consul she was allowed to remain till 18th February to effect repairs and to take on board considerable supplies of coal and provisions. She also contii ed to enlist forty-five men. Some investigation was made by the colonial authorities, but they were satisfied with her captain’s assurance that he had enlisted no one since her arrival. After a cruise in the Arctic Seas she returned to Liverpool in November 1865 and was afterwards handed over to the United States. On these facts the United States Government alleged against Great Britain two grievances, or sets of grievances. The first was the recognition of the southern states as belligerents and a general manifestation of unfriendliness in other ways. The second was in respect of breaches of neutrality in allowing^ Confederate vessels to be built and equipped on British territory. Correspondence ensued extending over several years. At length in February 1871 a commission was appointed to sit at Washington in order, if possible, to arrive at some common understanding as to the mode in which the questions at issue might be settled. With respect to the Alabama claims the British commissioners suggested that they should be submitted to arbitration. The