TOPICS OF THE DAY.
SIR A. COCKBURN'S JUDGMENT.
SLR A. COCKBURN'S judgment is hardly as wise as- it is able. It has a little too much of the flavour of an Advocate's speech. In his examination of the often very complex facts no one could be more accurate and more candid, but in the conduct of the argument, and still more in the moral and rhetorical parts of his judgment, he seems to allow himself a good deal of the freedom of a mouthpiece of Great Britain, and especially of Lord Russell under whose foreign administration these disputes arose. We confess we think this unfortunate. Not that Sir A. Cockburn goes a bit too far,—his language does not indeed go far enough for the truth,—in condemning the spirit and the licence of state- ment of the American Case. If he could have got his colleagues to join in expressing disapprobation of the character impressed upon that Case by the keen but un- scrupulous lawyers who prepared it, every one would have rejoiced, and a very salutary influence might have been exerted on like international proceedings for the future. But if this was impossible, it seems to us that a rebuke ad- ministered by the British Arbitrator alone, was wanting in the weight which could alone make such a rebuke advisable, and is more likely to be regarded in those quarters where chiefly it was wanted as the outbreak of national feeling, than as the judicial utterance of an impartial intelligence. Since our advocates and agents, following the deliberate judgment of the Government, had maintained a complete silence in re- lation to these charges of insincere neutrality and general unfriendliness by which the American agents sought to bolster up their sometimes defective evidence, it was hardly wise for the only one of the Judges who could be regarded as biassed in the matter to break that silence. Nor are we inclined to think Sir A. Cockburn's animated and in the main well-deserved panegyric on Lord Russell particu- larly well advised. Mr. Adams' anxiously candid testi- mony to Lord Russell's impartiality, nay, to the evidence which his actions gave of "a balance rather of good-will than of hostility to the United States," will do a great deal more to re-establish Lord Russell's reputation for uprightness of purpose in America, where alone it was in danger, than any encomium by Sir A. Cockburn, in whose month it is a little too likely to be attributed to strong tacit sympathy with the statesman who resisted the Washington Treaty from the first, threw all the difficulties in his power in the path of the Ministers who had negotiated it, and strove pertinaciously through a great part of last Session rudely to cut the knot of the misunderstandings to which it had given rise. Indeed, Sir A. Cockburn does not take much pains to conceal his dislike to the Three Rules ' embodied in the Sixth Article of the Washington Treaty, and the obvious fault running through his judgment is this,—that he endeavours persistently to minimise their effect almost up to the point of ignoring the rules altogether. No doubt, in the case of the Alabama he does admit that the neglect which led to the escape of the vessel is a neglect for which we are pecuniarily liable under the new ex post facto international rules, while it would have been culpable indeed, but not a sabject for reclamations under the international law actually governing our relations with America at the time of the escape. But this is the only practical effect he gives to these rules. In the case of the Florida and Shenandoah, he manages to ignore them on such general reasoning as the following :—It is true that we have admitted that the new obligations shall be considered as binding on us before we had ever thought of .assenting to them, but still, in estimating what amount of diligence from us in observing these obligations was due,' we cannot but take into account that these obligations were not then known to us ; and less diligence than that which would have been 'due' if we had known at the time of the extent of our inter- national obligations, should suffice when it is considered that practically we did not then regard ourselves as subject to any such obligations at all. Sir A. Cockburn, in fact, wants to measure the 'dueness' of our diligence with the same leni- ency with which St. Paul measured the unrighteonsness of Gentiles who had not the law, but yet "were a law unto them- selves." He would grant for the purposes of his judgment that we ought to have observed the rules, bin would deny that we ought to have thrown as much energy into the observance of them as we might have been expected to throw, if we had then been as consciously "under the law" as we
are now. "It seems to me," says the Lord Chief Justice, "that though by the Treaty of Washington it must be taken
that Great Britain was bound to use due diligence to pre- vent the equipping of ships as a matter of neutral obligation, and not as a mere matter of municipal law, yet that in deter- mining whether due diligence was then applied or not, we must look to the relative positions of the parties at '
the time, and insist on no more than would have. satisfied the exigency of obligations then existing.
Morally, in judging the conduct of the Government of that time, we are assuredly bound to do so." Yes, but the ques- tion submitted to him was not in any respect a moral one.. We submitted to give the new rules an ex post facto applica- tion for our own sakes, and as a fair equivalent for the- acceptance of them by the United States for the future.. What we said in effect was, that the new rules were for both our interests, but that it was not very reasonable to expect the- United States to bind themselves by these rules for the future- without having had any of the advantages of them in the past, and that, therefore, in order to give the United States strong motive for acceding to them, we would agree to apply them to our own conduct during the war. That was, no
doubt, a liberal offer, for it was pretty clear that the United States would benefit by them, while any prospective advantage to ourselves was still distant and problematic ; but it was not in any sense quixotic generosity; it was simply accepting an imme- diate disadvantage in our suit with the United States as an insurance against future risks,—i.e.,it was a policy not of quixo- tic generosity, but of enlightened caution.
And of course, if this was to be the bargain, we could not maintain that our conduct ought to be judged by standards. which would have been fair enough if there had been no bar- gain. It was a part of our bargain to assume that we were under the Three Rules,—and it is surely a complete ignoring of the bargain to attempt, with the Lord Chief Justice, to escape from the effect of this concession, by interpreting as "due diligence under the circumstances, what, if we had previously- agreed to the rules, even he would not have regarded as 'due' at all. His position is intelligible enough, though its- motive seems to us to be an animus of disgust towards the three ex post facto rules forced upon him. He maintains that while the law against equipping war-ships in neutral territory was solely a municipal and not an international obligation, it was quite enough to wait till the consul or minister of the aggrieved power brought us evidence that the municipal law was being violated, He admits that that would not have been enough in relation to an international obliga- tion. To ensure loyalty to such an obligation we ought our- selves to have instituted the most active precautions. But he asserts that in judging the discharge of a municipal obligation which we have only now agreed to treat as inter- national, we ought to admit as sufficient a measure of precaution only suitable to the lower or municipal order of obligations. In the case of the Alabama, he agrees that our neglect was real neglect, even if we consider the scale of the. obligation itself as only municipal, and therefore he would give damages. But in the case of the Florida and Shenandoah, the law, regarded as a municipal law, was, he thinks, acted on with " due " diligence,—diligence adequate to the kind of obligation at that time attached to it,—and therefore he will not give damages, though possibly he might have done so had we really known at the time that the obligation was of the international order. Now this seems to us to be playing fast and loose with the sixth article of the Treaty. If for good and sufficient reasons of our own we agreed to be judged ex post facto by the rules, and made no sort of condition that the word 'due' should be construed rather in relation to the code of municipal than to the code of international duty, we have no sort of business now to get out of them on this side-wind. Yet it is as plain as possible that Sir A. Cockburn does judge both the ease of the Florida and that of the Shenandoah by the less stringent obligations which he thinks lay upon us in relation to the execution of a municipal law. No one who reads the evidence carefully can doubt that if the trial of the Florida at Nassau had been conducted under the exigency of a stringent international obligation, she would have been condemned at Nassau, and even if not there condemned, would have been detained till the result of an appeal to the Judicial Committee had been heard.
The Lord Chief Justice admits most candidly that there was "a failure of justice" at Nassau, that the law was badly interpreted, and that the judgment would not hold water. Does he imagine for a moment that in a matter held to be of stringent international obligation, the Governor would not have appealed, and detained the vessel pending the appeal ? So in the ease of the Shenandoah, he does not deny that the Confederate commander disregarded our regulations, that the vessel was manned from Melbourne, and made efficient as a war vessel by being so manned, and that the Governor of Victoria could have prevented this if he had carried out the energetic policy on which he at fist resolved. The Confederate Commander who refused to let the Colonial authorities search the vessel for British subjects 44 who had been shipped as sailors, would have been per- fectly powerless had the Governor persisted in interdicting all aid to the ship in the way of the necessary repairs, and had held to this order till the commander consented to give us ample security that no British subjects shoUld be recruited for the Confederate Navy within our territory. Had our Colonial authorities looked upon the matter as one of stringent international obligation,—as the Treaty requires us to consider it,—that course would have been taken, and the Shenandoah would never have recruited a single seaman in Melbourne. As it was, " due " diligence, in the international sense, was clearly not used, and hence the condemnation of the Shenandoah.
On one point, however, Sir A. Cockburn's argument appears to us, we confess, quite unanswerable,—we mean in relation to the decision of the Arbitrators that we were then bound to seize for breach of our neutrality, and without notice even, ships-of-war bearing the Confederate commission, so soon as they reached a British port. Sir Alexander Cockburn argues very justly that to put this interpretation on the second part of the first rule is simply to put violence upon its obvious signifi- cance :- "It is absurd to suppose that, if it had been intended that Great Britain should be held liable for not having seized these vessels on their re-entering her ports, this would not have been expressly stated ; especially when it is remembered that this might have been virtually to admit liability in respect of all these vessels, if shown to have been specially adapted for war within British territory ; for every one of them returned to a British port at an early period of its career. It is plain that it never could have entered into the mind of the British Ministry that the Rule would be treated as applicable to anything beyond the first departure of the vessel. The moral bearing of the question has been admirably pointed out in Sir R. Palmer's argument : --4 It would have become the plain duty of any neutral State which had entered into such an engagement to give notice of it beforehand to all belligerent Powers, before it could be put in force to their prejudice. It is impossible that an act which would be a breach of public faith and of international law towards one belligerent, could be held to consti- tute any part of the "diligence due" by a neutral to the other belli- gerent. The Rule says nothing of any obligati= to exclude this class of vessels, when once commissioned as public ships-of-war, from en- trance into neutral ports upon the ordinary footing. If they were so excluded by proper notice, they would not enter ; and the Rule (in that case) could never operate to prevent their departure. If they were not so excluded, instead of being "due diligence," it would be a flagrant act of treachery and wrong to take advantage of their entrance, in order to
effect their detention or capture. Can Her Majesty be supposed to have consented to be retrospectively judged as wanting in due diligence, because, not having excluded these Confederate ships-of-war from her ports by any prohibition or notice, she did not break faith with them, and commit an outrage on every principle of justice and neutrality by their seizure? The Rules themselves had no existence at the time
of the war ; the Confederates knew, and could know, nothing of them; their retrospective application cannot make an act ex post facto "due," upon the footing of "diligence," to the one party in the war,
which, if it had been actually done, would have been a wholly unjustifi- able outrage against the other.' In truth, this contention on the part of the United States is entirely an after-thought. During the whole course of the war, amid the numerous demands and reclamations made by the United States' Government and its Representatives, it never occurred to them, so far as I am aware, to suggest to Her Majesty's Government to detain these vessels on their entering British ports. The conclusion, then, at which I arrive, is that, even if Great Britain had a right by international law to seize these vessels, she was not bound to do so, and in common honour could not have done so without giving notice; that the United States had no right to insist on
the seizure of them, and, at all events, never having attempted to do so, can have no right now to claim damages by reason of its not having been done."
We do not go so far as to say with Sir Roundell Palmer, that Great Britain had not the right to inflict this penalty for the breach of our neutrality laws by the United States. We think she had, if she pleased. But to maintain that we undertook, in agreeing to the first rule, to accept a verdict of guilty for not doing so, seems to us one of the most wonderful bits of forced interpretation to which a grave and conscientious fibunal ever gave its sanction. io
But on the whole, the Lord Chief Justice's argument, able as it is, and valuable as it is as a judicial discussion of some of . the most important principles of international law, is seriously "warped by the evident distaste of the lawyer for the British concessions which he was bound to interpret, and by the fixed purpose to reduce them to a minimum which runs through this printed speech. But the passage which we most regret in it is that in which, by way of repudiating the charge of British unfriendliness to the North, he practi- cally justifies an attitude of mind on the part of our nation which we thought at the time and still think one of the most discreditable to the ruling classes of our people,—for the people themselves were not infected by it,—of which history has any record. When Sir A. Cockburn asserts that "eleven great provinces, with a population of several millions, forming fully one-fourth of the Union, impelled by the con- viction that the political views of the majority of the Federal States were, if not antagonistic, at all events inconsistent with their interests, desired to separate themselves from the Union to which they were bound by the tie of a voluntary Con- federation," and alleges this as an adequate justification of the sympathy felt for them in England, he must know perfectly well that the majority of the population in those eleven great pro- vinces—the Negro population—entertained no such desire ; that on the contrary, they thought their interests absolutely bound up with the North, and so bound up for the very reason for which the ruling minority desired separation,—namely, because the North was the only barrier between the Negroes and a destiny of cruel and hopeless slavery. It is not by such representations as this that the Lord Chief Justice will vindi- cate the impartiality of feeling of the ruling classes in Great Britain at the beginning of the war. There was no such im- partiality of feeling. Our rulers were wise enough and equitable enough to hold us practically aloof from this most immoral of causes, and the bias of feeling, however discredit- able, is no matter for international remonstrance. But it is a fatal mistake in the Lord Chief Justice to vindicate a state of mind over which the sooner history draws a veil, the better will it be for the reputation of that British Parliament and middle-class, who were then watching with eager, but most perverted feelings the development of the greatest war of principle that the world has ever seen.