TOPICS OF THE DAY.
THE GENEVA JUDGMENT AND THE FUTURE.
THE Geneva Judgment can hardly be expected to.be at first received in England with much gratulation. There is no denying that on some points all Englishmen who have studied the subject must feel that the substantial victory remains with the United States, and this not merely on points which we had fully intended to submit to arbitration, but on at least one important point relating to the interpretation of the Treaty, which we had steadfastly denied that we did intend to submit to arbitration. As was repeatedly pointed out in the long discussion concerning the Indirect Claims, there was no clause in the Treaty providing that the Arbitrators should themselves determine all disputes as to the meaning of that part of the Treaty with which they were concerned. And now it appears that on one point at least of considerable importance and of large pecuniary consequences to our- selves, the Arbitrators have not only decided against us, but have done so on the strength of a particular inter- pretation of the Treaty entirely repudiated by our Foreign
Office. We do not complain of this. On the contrary, our Government acted perfectly right in not insisting in this matter on its right to be bound only by the sense in which our statesmen really accepted the engagements of the Treaty. International arbitration would never be really possible, unless on all points of secondary importance considerable latitude were allowed to the Arbitrators to construe the meaning of the engagements taken in the sense which appears to them most reasonable. The question of the Indirect Claims was of such paramount and lasting importance, that it would have been simply absurd to allow them to be slipped into a Treaty from which they had been intentionally, as we supposed, excluded. That would have been about as wise as for a man, after agreeing to arbitration about a matter involving the tenth of his yearly income at most, to permit his adversary to in- clude incidentally a question affecting his solvency. But on secondary points, such as the one to which we refer, it was undoubtedly right to let the Arbitrators, in the honest exercise of their discretion, put upon the Treaty a meaning contrary to that really assigned to it by our Foreign Office at the time of its execution ; for without giving some discretion of this kind, no arbitration could suc- ceed. Still it cannot be expected that we should not feel mortified at discovering that a part of the language of the Treaty has been turned against us by virtue of an interpreta- tion which our statesmen strenuously disown. And this has certainly been the case. In agreeing to the first of the famous " Three Rules," without which no decision against us could have been gained at all, our Government consented that one principle by which its conduct should be tried, just as if it had been a recognised principle of inter- national law during the war, should be as follows : —That a neutral Government is bound " to use due diligence to prevent the fitting-out, arming, or equipping within its jurisdiction of any vessel which it has reasonable ground to believe is intended to cruise or carry on war against a Power with which it is at peace, and also to use like diligence to prevent the departure from its jurisdic- tion of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction to warlike use." Now, one of the first great questions which arose was whether this rule covered the case of a vessel which, having origin- ally violated our neutrality and escaped from our juris- diction, at some subsequent period, even though after re- ceiving its commission as a ship-of-war by the belligerent power, again asked our hospitality. That was the American interpretation, while the British interpretation of the rule was explicitly against any such understanding of it. We said in our Counter-Case,—" The undue extension which it is proposed to give to the first rule does not accord with its plain and natural meaning, was never contemplated by the Government of Her Britannic Majesty, and is altogether re- pudiated by Great Britain." It is clear, the Counter-Case asserts, that the rule applies only "to a departure following the special adaptation, whilst the hostile purpose still rests in intention, and the vessel may still, by due diligence, be pre- vented from quitting the neutral territory to carry that pur- pose into execution," and that, and that alone, was the sense in which, according to our Foreign-Office, the rule authoritatively interpreted in the American sense by the Arbitrators, who lay down in their recitals the following principles
:- "Whereas the effects of a violation of neutrality committed by means. of the construction, equipment, and armament of a vessel are not done. away with by any commission which the Government of the belligerent Power benefited by the violation of neutrality may afterwards have- granted to that vessel ; and theultimate step, by which the offence is completed, cannot be admissible are ground for the absolution of the. offender, nor can the consummation of his fraud become the means of establishing his innocence. And whereas the privilege of exterritoriality- accorded to vessels-of-war has been admitted into the law of nations, not ao an absolute right, but solely as a proceeding founded on the. principle of courtesy and mutual deference between different nations,. and therefore can never be appealed to for the protection of acts done in• violation of neutrality," —and the Arbitrators make these principles the ground' upon which they condemn us explicitly for not seizing- the Alabama and the Florida when they entered our• colonial ports after their first escape, and not proceeding- against them "in any and every port within British jurisdic- tion " in which they might have been found. Nor can there be the least doubt that the "lump sum" awarded for both these vessels was greatly increased by our failure to detain, them in our colonial ports after they had fully assumed their- belligerent character. Now, of course the Americans cannot expect us to be exactly pleased at this use of words which we. intended and agreed to in one sense, to bring home to us an. act of negligence which our lawyers honestly thought not only no act of negligence, but a mere compliance with the general rules of international law laid down for the guidance of neutrals towards the cruisers of belligerent States. It seems. certain that our authorities really would have thought them- selves guilty of violating the duties of impartial neutrals, had they seized the Alabama or the Florida, after they had been- commissioned by the Confederate States, for having evade& our laws in their first escape from Liverpool. And most assuredly they did not mean, in agreeing to the first rule, to agree- to any such construction of it as would hold them responsible for not so acting. To find ourselves saddled with a consider- able addition to the pecuniary damages imposed upon us, by virtue of this new interpretation of an ambiguous rule, cannot but be a little trying to our national pride.
Nevertheless, we hold not only that the Government did quite right in making no remonstrance against this unexpected interpretation of our meaning, but that on the whole, if we are to regard, as we must regard, this arbitra- tion more in the light of a satisfactory definition of inter- national law for the future,—with ex post facto bearings. agreed to by us only in order that we might not seem to have made concessions exactly at the moment at which we had: ceased to profit by refusing them,—we have very good reason. to be satisfied with the nature of the rule laid down. The United States had argued for the right to seize ships-of-war- which had violated neutral laws, only in case they were com- missioned by no established and recognised Government. Had the United States' Government itself contracted secretly for ships-of-war to be built and escape from our ports,. which ships they had afterwards commissioned, they would not concede that such ships we should be justified in seizing, upon any future visit to our ports ; for in this, case, they argued, our true remedy would be against
the Government, not against the ships themselves. But. as against a Government not yet formally recognised,. only admitted to the rights of belligerency, they maintained that the only proper course was to regard the vessels them- selves as responsible for the wrong. In other words, they would not have justified us in seizing any commissioned vessels of their own which had escaped from our ports,. nor, had they been neutral and we belligerent, would. they have considered themselves warranted in seizing any vessels of ours which had escaped from their ports.. They could only admit the justification of that prompt and unceremonious remedy, as against a struggling Govern- ment not yet recognised by the community of States. Now it is obvious, we think, that the rule against vessels which abuse the hospitality of a neutral should be universal, because it will so very much diminish the future temptation to com- mit the offence in question. If the remedy is not, in the case of established Governments, to be against the vessels themselves whose owners break the neutrality laws, but only against the Governments which procure and commission them, there might still be plenty of temptation for regularly estab- lished Governments to embark in such enterprises as those of was agreed to by Great Britain. It has, however, been the Confederate States. There might be sufficient reason to As to the other great principle laid down by the Arbi- bauchery than the old public elections, but how much trators, that a neutral's " due diligence " in preventing the of this is due to the abolition of nomination-days, with building and escape of war-vessels intended for a belligerent their licensed orgies, and how much to the Ballot, seems at " ought to be exercised in exact proportion to the risks to present exceedingly questionable. There can be no doubt but which either of the belligerents may be exposed for a failure that at Preston the Conservatives contrived to have an elec- to fulfil the obligations of neutrality on their part," we feel tion as full of those little electric shocks which result from the same kind of embarrassment as several of our contem- the frequent display of party returns of the state of the poll, poraries. If you are to measure due diligence ' only by the as ever were the old elections ; nor is it easy to see how the result, without regard either to what events it was reasonable mere secrecy attaching to the authentic Ballot-papers, except to anticipate, or what you might reasonably be expected to do, so far as it discouraged the expenditure of party money on it might surely be maintained that it would have been refreshments and beer, should have had much to do with the nothing more than due diligence ' in the United States to greater order and quiet of the day. Indeed, the Tory papers have kept the whole Canadian border lined with troops intended very candidly boasted that the Ballot had not diminished the to prevent the Fenian raids. To measure due diligence ' resources of corruption at all. " We do not believe for a solely by the risks to the suffering belligerent is often to moment," says the Standard, "that it [the Ballot] will render measure by what the neutral has no possibility of knowing. bribery or intimidation impossible, or put a check upon frau- The Alabama might, by some mischance, have destroyed a dulent voting. On the contrary, we see very little reason to great part of New York ; should we, therefore, have had to doubt that in all respects it will provide facilities both for pay for the rebuilding of New York, without any relation to violating the law and evading detection and punishment. For the fact that it is obviously the duty of the United States instance, there are no means whatever for preventing the to guard against such surprises ? The rale of due diligence,' wholesale system of bribery known as paying for results,' as laid down by the Arbitrators, is unintelligible and abso- by which the body of voters holding the balance of power lately inapplicable to the emergencies of the future. between Liberals and Conservatives will be enabled to sell
But, on the whole, both England and America have every itself to the highest bidder. Against these drawbacks we are right to be thankful for the issue of the Arbitration. Nor can asked in fairness to accredit the Ballot Act with having done we agree with M. John Lemoinne, the'able editor of the Debats, away with rowdyism and violence, and having made elections that this first success of a great international arbitration peaceful and orderly. We admit it, but," &c. Now, we being solely due to the fact that neither England nor the must remark on that, that the new orderliness of elections will United States wished to quarrel, the pacific result is an pretty certainly not last, if the Standard's first inference is accident without meaning for the world at large. No just, and bribery and intimidation on the large scale may still doubt it would be absurd to suppose that because we have be successfully pursued. We do not say with the Standard settled this little difference with our American cousins, and that they may, but we do say that the new quietude at Ponte- agreed to pay three millions odd sterling rather than fract and Preston was, as far as any reasonable mind can see, let it cause bad blood between us, therefore France wholly due (1) to the abolition of nomination-days, which and Germany will settle the difference about Alsace and Lor- has nothing to do with the Ballot, and (2) to the general raine in the same fashion, and the reign of everlasting peace impression that intimidation, bribery, and treating would be be proclaimed. We are perfectly aware of the difference be- useless under the new law. If the Conservatives have shown, tween a bitter national fend and a vexatious national mis- as they claim to have shown, that this is not so, that the state understanding, and do not at all believe that quarrels of the of the poll can be quite sufficiently well known from hour former kind will be settled in our day,—or in any day to hour to render the unlawful procuring of votes in which there is n9 strong military force behind inter- worth while, — that there are methods by which the national tribunals,—by arbitration. But not the less will money's worth can be received for the money in spite the example of England and America make a profound of the secrecy of individual votes, and finally, as seems impression on the world. It will no longer be thought probable from a letter in Thursday's Times, that " the dishonourable to refer secondary disagreements, not yet illiterate voter" may be bribed after the old fashion, and his grown to the full dimensions of a bitter quarrel, to vote publicly secured for the bribing party,—then we main- a fair arbitration. The respect for arbitration will gain tain that there is absolutely no reason to suppose that the by the happy results of this great negotiation, and little by quiet and order of the day will outlast the illusion as to the little we may hope to see international differences adjusted uselessness of the old illicit practices. Let there be once with more equity and less outpouring of blood. The first negotiations set on foot for "paying by results," or in any other step is always the most difficult. The knowledge that Eng- way for obtaining voters' support, and we shall in all land has deliberately paid more than three millions sterling probability have all the violence and excitement back again. as damages in order to settle a difference in which she had Hence even as to the new mode of taking votes, we maintain strenuously maintained that she was not in fault, will be a that the new experiments are quite indecisive. They show great encouragement to large States accused of wrong to waive that the new method will be far more orderly and decent, if fanciful considerations of honour for a substantial gain of the impression as to the hopelessness of illicit practices sur- equity, and to small States to act with that temper and con- vives the complete mastery of the method. But if not,—aa sideration which may gain from an impartial Court a judg- our Conservative contemporary maintains,—then there is no meat in their favour. It is the arrogance of great countries reason to look for the permanence of the new order and in international quarrels, and the hopelessness of small coun- decency. Negotiations for buying the unprincipled electors tries, which together produce so many dangerous imbroglios. who boast that they can turn the scale of parties and for secur-
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