Front Page Titles (by Subject) chapter 16: International Law - The Story of the Law
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
chapter 16: International Law - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
The great lawyer who was chancellor of France, D’Aguesseau, was the first to suggest that the law regarding the relations of states toward each other which by a misapplication of the term had come to be called the law of nations, would much better be described by the phrase “the law between nations.” Bentham took this suggestion and translated it into the words “international law,” leaving the expression, the law of nations, to revert to its old meaning in the Roman law. It was once commonly supposed that international law was an invention of the modern world, but it is now very well settled that the Greeks by agreements among various of the city-states regulated the rights of the citizens of one city-state in the dominions of another state. They had well-developed laws or customs regarding ambassadors and the making of treaties between states. There was a large body of ancient custom regarding the Amphictyonic Council. In the Amphictyonic League there was an opportunity for a federated league of Greek states, but nothing came of it. The Romans had very strict customs regarding the making and ratifying of treaties. There was a special college of priests which had the care of the approving of all treaties. One custom among the Romans added much to the responsibilities of ambassadors in the negotiating of treaties. If a duly accredited envoy made a treaty which the Roman Senate refused to ratify, it was considered that every obligation was met by the surrender of the ambassador to those with whom he had negotiated. One settled rule with the Romans was that they would never make peace as long as any foreign power had a foothold in Italy. After Rome by her victory over the Carthaginians drove the African power out of Sicily and Spain, she evolved a sort of ancient Monroe Doctrine for Europe. She announced that it was her settled policy that no African or Asiatic power could acquire or hold any territory in Europe. For this principle she began her wars with Mithridates the Great and with the successors of Seleucus in Syria. Another of her propositions was that Rome guaranteed every one of her allies against attack. The opening of Caesar’s wars in Gaul was caused by, or at least excused by, the attack of the Helvetians upon tribes in alliance with Rome, and the assault of Ariovistus upon allies of the Roman people. Rome always fought until she made her propositions of international law accomplished facts.
After Rome gained her final supremacy international law was not heard of for hundreds of years, for the simple reason that the whole of the civilized world was under Roman rule and there was no occasion for an international law. All necessary law between states was supplied by the Romans. After the barbarians had overrun the Western Empire and were jeopardizing the remainder of the Roman power in the East, the Pope made constant efforts toward peace, at least among the feudal lords, and the Truce of God was one of these efforts. Rules of international law slowly began to emerge, but with great difficulty. There was a constant desire among better men to reach some basis of peace and the Duc de Sully at the end of the sixteenth century made an effort to restore the Roman peace by a League of Nations.
In the meantime a school of Dutch and French lawyers produced a great development of what is more strictly called international law. The Roman term law of nations meant not the rules between nations, but those general principles of private law which were recognized by all civilized nations to govern the private rights of citizens. This use of the term became lost and the law of nations was applied as a term to describe the law among or between nations. The Dutch jurist De Groodt, whom we call Grotius, did not use the term “law of nations” or “international law.” He called his book “The Law of War and Peace” (“De Jure Belli et Pacis”). He made up from the general principles of the Roman law and from agreements between nations, and from some ancient material governing the law of heralds and ambassadors, a system of principles to govern nations in their conduct toward one another, in a condition of war or of peace. But this kind of law continued to improve with many things well defined until after the Napoleonic wars. Vattel’s book, called “The Law of Peoples,” summed up the usages to his time.1 Our Constitution made the treaties of this country with foreign countries a part of the supreme law of the land. Existing international law was expressly recognized in that document. Our Supreme Court in an early decision held that the recognized usages of international law among civilized nations were a part of the law of the land, to which all our courts would give effect. The same result had been reached in England.
Private international law was to receive an unexampled expansion in our own country, by reason of a peculiar construction from the very first put upon our constitutional form of government. It was held, whether wisely or unwisely need not be considered, that although to foreign nations this Union presented the aspect of one single sovereignty, yet, except as the relations of the states toward one another were controlled by the Federal Constitution and the laws thereunder, all of the states were to be considered toward one another as foreign states. The Constitution had provided for records of the state being proven and receiving recognition in all other states and had provided for an extradition of those charged with crime. It had the general provision that the citizens in each state should enjoy the privileges and immunities of citizens of the several states, but the tribunals of the states were at the same time justified in acting as if the rules that controlled them in private law would be the same as those which would be applied between two foreign states. The one great modifying principle was that which arose from the provision in the Federal Constitution which gave the Federal government control of interstate commerce.
It was at first supposed that in all other instances the Federal courts must apply the rules in any state that the state courts would follow. After a while the Supreme Court evolved another rule for Federal tribunals. It was that in rules of general law the Federal courts would not apply the varying law of particular states as to a transaction otherwise governed by the law of a particular state, but would follow their own ideas of what was the proper rule of law.2 We may take an instance. In Illinois, where the courts held for a long time that a check was a pro tanto assignment of a deposit in the bank against which the check was drawn, the Federal courts would not follow such a rule in Illinois, but would follow the general and more intelligent rule, that a check took no effect upon the bank deposit until the check was either accepted or paid by the bank where the deposit was against which the check was drawn. There has thus grown up a large body of transactions in regard to which the Federal courts will not follow the law of the state in which the transaction occurs, unless the rule of that state is considered to be correct. It will be seen that this is a sort of Roman pretorian law.
In another department of law the Federal government treats the states in just the same fashion that the states in Italy subject to the Holy Roman Empire were said to be related to each other. Bartolus in the Middle Ages said that those states in their disputes with each other could not give law unto themselves. So the states of the Union in their disputes with each other cannot insist upon their own laws. The Supreme Court in such cases will use such principles of general law as it deems applicable, and will pay no attention to the laws of the states that are litigating.
It is a dogma of our constitutional law that the various states are sovereign toward each other, but here is an instance where they are compelled to submit to a superstate law imposed upon them by the Supreme Court, although no such law exists by legislation or by any other force than accepted custom, as it is laid down by the Supreme Court. No one would deny that in such cases the rulings of the Supreme Court have the force of law, although the method of using coercive force is problematical. The German Kohler likens the law of federated states to what he calls supernational law, by which he means international law.
There was a court of the United States before the Constitution was adopted. Under the Articles of Confederation a prize court sat at Philadelphia and decided cases which had been reported. This court decided in a case that has been followed by our Supreme Court that no one nation can vary a rule of international law. Doubtless our Supreme Court would take the same view of the ruling regarding the Appam, a vessel lying in an American harbor.3 The German prize court took jurisdiction because the Appam could not be brought within the jurisdiction of the court. This amounts to the staggering assertion that a court has jurisdiction because it has not jurisdiction. How incredibly plain such law is!
The development of international law was very marked during the century after the Napoleonic wars. Many matters were supposed to be settled in that department of law until the Great War of 1914. It is noticeable that during our Civil War the Supreme Court of the United States, on the analogy of an older case by Lord Stowell, developed as a part of the international law of blockades the doctrine of ultimate destination. The blockade runners, when the whole coast of the Southern Confederacy was blockaded, attempted to avoid the blockade by landing contraband goods in Mexico to be trans-shipped across the Mexican border. The goods, however, were held to be lawful prize when taken on the high seas before reaching the Mexican port. Similarly, goods ostensibly billed to Nassau were held to be lawful prize, when the fact was that they were designed to be trans-shipped at Nassau to run the Union blockade of southern ports.4 The diplomatic writing during the Great War emanating from our foreign affairs office regarding these matters of international law is futile in its maladroitness. The doctrine in international law of ultimate destination may now be considered settled.
The operations of Confederate cruisers during our Civil War were destructive of American commerce. Those cruisers were the Alabama, the Florida, and the Shenandoah. It must be said that the American war vessels did not show much capacity for following up those vessels. Toward the end of the war the Alabama was destroyed in the English Channel. The fate of the Florida was curious. Toward the close of the war she put into a Brazilian port. An American war vessel following her lay outside waiting to sink her; but she did not come out. At last the American vessel steamed into the port and anchored near the Florida. The Brazilian authorities appeared with admonitions to keep the peace, but to support their remonstrances they had a wholly inadequate array of little gunboats. The American commander, however, seemed to be in a peaceful frame of mind and there was no sign of hostilities. Most of the crew of the Florida went ashore. The American vessel by some occult process seemed to be edging over nearer to the Florida and at last without any overt act of hostility a tow line appeared on the Florida, attached strangely enough to the American vessel. Soon the American vessel steamed out of the harbor with the Florida in tow, until at last the vessels disappeared from the view of the indignant Brazilians.
The Federal government, of course, promptly disavowed the act of the American commander and engaged to return the Florida to the Brazilian port. This was the news that greeted the officer with his two vessels when they appeared off the capes at the mouth of Chesapeake Bay. Acting under orders, the vessels turned into the Chesapeake and proceeded up the Bay, but the Florida was reported to have sprung a leak. She sank in the middle of the Bay. There she yet reposes. The officer was by a gesture cashiered, but he afterwards unaccountably appeared as a rear admiral. This episode was intensely humorous at the Geneva arbitration, when cited to show the lax ideas entertained by our country on international law.
As soon as the Civil War was over and the French Emperor had been required to withdraw his troops from Mexico, leaving poor Maximilian to his fate, the United States began insistent demands upon England for reparations on account of the depredations of the Confederate cruisers. The English with their incorrigible tendency in American affairs to put their money on the wrong horse and their naïve affection for the South as advocating free trade, had greatly incensed the North by their conduct during the war. Gladstone, whose judgment was uniformly bad in foreign affairs, had used some very offensive language. The bitterness felt toward England throughout the North had become intense, and there was very much reason for it. At last, while Hamilton Fish was Secretary of State, a treaty was concluded in May, 1871, at Washington, by which the dispute was to be arbitrated by a tribunal to assemble at Geneva. The treaty established certain rules, which, with the rules of international law not inconsistent with them, were to govern the tribunal in its deliberations as to the duty of Great Britain regarding the Confederate cruisers. In December, 1871, in the Hôtel de Ville at Geneva, the Alabama Arbitration Tribunal assembled. The history of this noted arbitration has never been well understood in this country.5
The United States was represented by William M. Evarts of New York, then entitled to be called the head of the American Bar. He was supported by Caleb Cushing of Massachusetts, whom President Grant afterwards nominated for the Chief Justiceship of the United States. Before the war Cushing’s political career had been anathema to all the Massachusetts people who looked to Senator Sumner for a guidance almost divine. During the war Cushing had furnished to the administration much legal material of which there was constant need, but of which Secretary Seward had not the least inkling. Some one, however, produced a letter written by Cushing which was a mere letter of introduction just before the war, but it effectually ruined for the second time his chance to be Chief Justice. Cushing at Geneva could talk in the language of the various arbitrators, even in Spanish and Italian. Evarts and Cushing were supported, but at a long interval, by Morrison R. Waite of Ohio, whom President Grant after his failure with Cushing successfully nominated for the Chief Justiceship. Grant seemed to regard the lawyers in the light of faithful military officers whose success entitled them to the highest reward in his gift.
The rules formulated in the treaty by worthy English and American gentlemen without any apparent accurate knowledge of international law were that a neutral must use “due diligence” against “the fitting out, arming, or equipping” within its jurisdiction of any vessel which the neutral has “reasonable ground to believe” is intended to cruise or war against a Power with which it is at peace, and to use due diligence to prevent the departure from its jurisdiction of any vessel so intended if that vessel has been specially adapted in whole or in part within its jurisdiction to warlike use. The second rule, as afterwards amended by consent, because its original statement was absurd in the view of both sides to the controversy, forbade a neutral to suffer either belligerent to use its ports or waters as the base of warlike operations against the other or for the recruitment of men.
The first rule is crudely expressed and would have been much clearer if stated by a competent lawyer. As stated above it is inadequate in the phrase “reasonable ground to believe.” Does that expression cover the use of due diligence to discover whether a vessel is intended to cruise or make war, or is that phrase satisfied by mere passive waiting for information from the country about to be prejudiced, without active steps being taken to discover information? If the rule had read that a neutral must use reasonable diligence, first, to discover whether a vessel being fitted out, armed, or equipped in its jurisdiction is intended to cruise or war; secondly, to prevent the fitting out, arming, or equipping in its jurisdiction of such a vessel; thirdly, to prevent the departure from its jurisdiction of any vessel so intended, if that vessel has been specially adapted in whole or in part within its jurisdiction to warlike use, the rules would have been comprehensible and stated in ordinary legal terms.
The contention of the United States as to due diligence was that it must be proportioned to circumstances, and as to a reasonable ground of belief the position taken was that the use of reasonable diligence to form a ground of belief was required, while the English contention was that by our own national usage, as well as by international usage, due diligence had been defined in practice as that amount of care which nations ordinarily exercised regarding their own important affairs, and that, as to a reasonable ground of belief, no antecedent diligence was required for the formation of a belief. As the treaty stands, and under former international practice, and especially our own, one is compelled to acknowledge that the English contention was strictly correct.
A second case totally unprovided for in the first rule was this: Suppose a vessel to have been fitted out for war within the neutral jurisdiction and to have gotten away from the neutral’s port without any want of due diligence on the neutral’s part, is the neutral required by international law to treat such ship as a belligerent man of war after it has been commissioned by the belligerent power, or is it required to deny the ship access to its ports, or, if found within the jurisdiction, to prevent its departure, as if it had just been fitted out there, or does the fact that the ship has fraudulently escaped from the neutral territory and has been commissioned as a regular war vessel, require that it shall be treated by the defrauded neutral in its ports as a regular war vessel? All these inquiries were well known as likely to arise, yet upon the points the oracular treaty was dumb.
Whatever ground is taken it is apparent that these are all questions of fact or bare propositions of international law; motives, feelings, or public utterances in favor of one belligerent or the other can have no possible bearing. The second rule as formulated was so clearly in contravention of international law that it was amended by consent. It did not speak of due diligence, and the question upon the second rule was whether a neutral was an insurer against its ports being used for the recruitment of men, or whether it was sufficient that due diligence was used to prevent such recruitment after information gained. No one can tell what the conference actually decided upon this point.
By the treaty each government was to file at the opening of the tribunal a statement of its case and of its argument in support. The written statement of our case, it will appear, was indefensible. The conduct of the case by our government is not a very pleasant thing to contemplate, and it must be condemned. The condemnation extends not only to conduct during the arbitration but to a painful lack of dignity in choosing our own representative in the tribunal. To condemn one’s own country is always an invidious task, but patriotism does not require one to lie for one’s country unless one is an ambassador. In fact one may very well tell some truth regarding the arbitration, for very little will be found in the ordinary history as it is written in this country.
The American case was drawn by J. C. Bancroft Davis, who had had some experience in diplomacy but none in advocacy. He died as Reporter of the Supreme Court. If he had any legal talent neither his reports nor this arbitration discloses it. The main question to be settled was as to the Alabama, the Florida, and the Shenandoah, which had operated as Confederate cruisers. Numerous other vessels were spoken of in our statement, but as to some of them there was no evidence whatever, nor the slightest excuse for including them, while as to others England was so clearly not responsible for them that it is amazing to find them referred to at all.
The Alabama was built in England, adapted to a warlike use there and allowed to depart from its ports through the accidental sickness of a law officer, but after full warning to the English Government. The Florida case stood on different ground. It was built in England, partially adapted for warlike use there, left the English port without negligence on the part of England. It had then entered an English port, the harbor of Nassau. It was there seized by England but exonerated by the English Prize Court on the ground that it was not yet equipped as a vessel of war. It then on a barren island had received its armament, had immediately run through the blockading squadron into Mobile harbor, had there been commissioned as a war vessel, had then run out of the harbor through the blockading squadron a second time and afterwards had been allowed to enter English harbors and to coal as a bona fide man of war.
The only evidence of liability as to the Shenandoah was that she had enlisted a part of a crew in the English port of Melbourne, Australia, and departed upon her career of devastation among the American whalers.
The English Government could have urged that as to the Florida the United States had not performed its duty of keeping down the damages by reasonable care, although the English did contend that after the Florida had been allowed to run in and out of Mobile, England was no longer liable for its acts. By its own negligence our country had allowed the Florida to run in and out of a supposedly efficiently blockaded harbor, and, in the case of both the Florida and the Alabama, it had allowed those vessels to pursue their depredations without making any adequate pursuit by a sufficient fleet. One of the most difficult things to comprehend about our Civil War is the insufficient forces used in the pursuit of the cruisers. The Florida and the Alabama were allowed to sail the seas for over two years, to burn or sink or capture many vessels and to drive almost all of our merchant marine to the protection of the British flag, where our foolish navigation and marine laws have ever since compelled it to remain.
The tribunal was composed of Italy’s nominee, Count Sclopis, an Italian jurist of some reading, an urbane, verbose gentleman of polished manners but with rather muddy faculties. He spoke no English. The arbitrator named by Switzerland was Stämpfli; he was not a jurist and he had apparently a very bitter antipathy to England. He is accurately described in a private letter as “as ignorant as a horse and as obstinate as a mule.” He also did not speak English. The Brazilian arbitrator was Baron, afterwards Viscount, Itajubà, not a jurist. He was a man of calm and judicial temperament but he knew no English. His attitude, however, as to damages was shown by his statement to the English, “Vous êtes riches, très riches.” In other words his attitude was, “You are very rich and therefore should pay heavier damages than would otherwise be awarded.” England sent her leading jurist, Chief Justice Cockburn, but we were guilty of the inconceivably bad taste of sending not one of our jurists but Charles Francis Adams. He was the very man who as Minister to England had taken so large a part in these matters and whose mind was fixed upon all the questions to come before the tribunal. There has been a great deal of stupid ignorance printed in regard to the personnel of this board. But these are the facts. There was but one competent jurisconsult on it and that was Cockburn. It is worthy of notice that in the treaty of 1892 providing for the Fur Seal Arbitration, it was required that the arbitrators be jurisconsults of distinguished reputation and acquainted with the English language. It is unfortunate that those provisions were not in the treaty of 1871, but even in 1892 our government went so far as to class Senator Morgan as a distinguished jurisconsult!6
There were two glaring faults in the American case as stated, let us hope to the best of his ability, by Mr. Davis. The early part of his argument was devoted to an irrelevant but bitter attack upon England, to quoting the hostile words of Gladstone, Lord John Russell, and Palmerston, Liberal statesmen, who had all favored the Confederate cause; to asserting that England, desiring Southern success, had acted in bad faith, in precipitately recognizing the South as a belligerent, in assisting the blockade running, and in conniving at the fitting out of the cruisers. The treaty conceded that only negligence was involved while the argument asserted actual warlike operations. It is much like proving a negligent injury by an assertion of a premeditated assault with intent to commit murder.
The statement was full of bitter hostility and totally unworthy of such an occasion. It is apparent that all this rodomontade as to England’s irrelevant conduct in some other matter had nothing to do with the questions purely of fact which were being tried. This was all political buncombe intended solely for home consumption among the Fenians and Anglophobes in the approaching Presidential election of 1872. Any advocate worthy to represent us before an international tribunal should never have stooped to the sort of balderdash which if used in one of our courts in an ordinary negligence case would have at once been suppressed by the judge as prejudicial and clearly outside of the issues to be tried. It would be precisely as if, when Smith was suing Jones for negligence, Smith should complain to the jury that the son of Jones had spoken disrespectfully of Smith’s character, and that Jones had loaned money to Smith’s enemies.
The English case was drawn by Sir Roundell Palmer, one of England’s greatest advocates, afterwards Earl of Selborne and Lord Chancellor. It contained one part that was strongly objected to in the American reply. As bearing upon the questions of what was due diligence and of the existence of a reasonable ground of belief as to the character of a vessel, the English statement cited with particularity and care the practice of our government, first, in regard to the allowing of equipment and departure from our ports of war vessels to prey upon the commerce of Spain and Portugal in 1817 and 1818, with which countries we were then at peace; secondly, in regard to the filibustering expeditions of Walker against Central America and of Lopez against Cuba, which departed from our ports; thirdly, in regard to the Fenian raids on Canada.
The record cited was absolutely shameful. The English case showed beyond all question that the United States had always contended that a foreign government must furnish it with indubitable proof before it would act in detaining an alleged war vessel; and after a vessel had actually gotten away in fraud of our neutrality, that very vessel was permitted even to bring its prizes into our ports; as to the filibustering expeditions, war vessels were allowed to be equipped and men enlisted in our ports to war against a country with which we were at peace, because we insisted on the foreign government furnishing us with absolute proof before we would act; and as to the Fenian expeditions it appeared that men were openly enlisted in our cities and General Sweeney and other loud Fenians openly stated in the public press that the men were being gotten together and armed for a raid on Canada. Certainly this evidence was relevant to show how this country construed the phrase “due diligence” and to that extent it was proper to show that we were not in a position to ask another country to exhibit far greater diligence than we had ever shown in regard to our own ports. But we were anxious to forget the nightmare of our international conduct and earnestly objected. The attitude of the tribunal was shown by the decision early in the arbitration that all this evidence was inadmissible. On what ground the Board against the dissent of the English arbitrator so decided, it is impossible to conjecture. International law is always provable by international practice.
The concluding portion of Mr. Bancroft Davis’s statement almost wrecked the arbitration. For our government he put forward enormous claims of more than two billion dollars for indirect damages, so called, arising in a mingled way from the operations of the Confederate cruisers, from the blockade running and shipping of contraband of war, and from the general unfriendly conduct of Great Britain and its early recognition of the belligerency of the Southern States. The claims were stated as loss in the transfer of vessels from the American flag, enhanced payments of insurance on merchant vessels, and the prolongation of the war and delay in the suppression of the rebellion. It was perfectly plain, as Theodore D. Woolsey has pointed out, that such claims were negatived by the treaty, which allowed recovery for direct losses growing out of the operations of the cruisers in capturing, destroying, and burning vessels. It was also plain that the prior negotiations negatived any such indirect damages. No country could afford to submit to arbitration its liability for injuries of this wild and indefinite character or its governmental acts in recognizing belligerents. Every American who was informed knew that such claims were outrageous. President Grant spoke with contempt of the “indirect damage humbug.” Both Charles Francis Adams and Secretary Fish knew that the clams had no validity, yet our government did not dare to withdraw them on account of our internal politics.
These ideas had been encouraged for a long time by the folly of Secretary Seward’s diplomatic dispatches. He had contended from the first that European countries had no right to recognize the Southern Confederacy as a belligerent! He maintained that the cruisers were pirates and ought to have been treated in all ports as pirates! Yet he knew that we ourselves recognized the Southern Confederacy as a belligerent by blockading its ports and by exchanging prisoners with it. But this sort of statement had been circulated throughout the North until our people were wholly bewildered and had no proper idea of the international situation. If Seward was right, we had no excuse for blockading the South and the whole blockade was illegal. The Supreme Court of the United States decided against Seward’s conception; but four dissenting justices, Taney, Nelson, Catron, and Clifford, agreed that the North had no legal right to blockade the South. It was sheer nonsense to contend that a portion of the country with a de facto government maintaining large armies in the field was not a belligerent. Perhaps the day will come when some careful writer with the requisite knowledge of international law will properly expose the preposterous character of much of Seward’s diplomatic writings during the Civil War, but as it is, our delusions about our own history are such that Seward is looked upon as a great and capable foreign secretary.
The Geneva Conference was left at an impasse created by Mr. Davis’s brief. The English refused to proceed. At last it was decided to repudiate Mr. Davis and his claims. But instead of openly withdrawing the claim, Charles Francis Adams, our arbitrator, was driven to propose that the Board should unanimously announce that the indirect claims could not be considered, and this is the best commentary upon the amazing impropriety of Mr. Davis’s conduct. When this announcement was made the reply statements had been filed. Sir Roundell Palmer never noticed those parts of the American statement which have been noted as so inexcusable. The arbitration tribunal proceeded to consider and make its decision in regard to the various issues. Having made its decision, it called for further arguments, but this was a mere gesture. The decision was already made, but arguments in writing were delivered from both contestants. Mr. Evarts spoke once, but he was not understood by three members of the Board, for he spoke English.
The award was made holding England responsible for the Alabama, and the Florida, with their tenders, and for the Shenandoah, after she had recruited men at Melbourne. The amount of the award was $15,500,000, but the damages claimed for national pursuit of the cruisers and for prospective earnings of vessels destroyed were disallowed. The sum given was no doubt grossly excessive, although Stämpfli wanted to make it much larger. No persons have yet been found with sufficient damages to exhaust the award, and a large part of it has been devoted to purposes clearly not within the purposes of the award.
The arguments of the different counsel may be read in the four-volume book published by our government, entitled “The Geneva Arbitration.” Those of Sir Roundell Palmer will be found models of good English, clear statement, and fair argument. Mr. Evarts was worthy of his great reputation. Caleb Cushing was mediocre, while Mr. Waite was negligible, although his service as counsel paved the way for his selection as Chief Justice of the United States.
The different arbitrators delivered opinions. That of Count Sclopis lays down a rule which every one has condemned. Those of Mr. Stämpfli and Viscount Itajubà are curious reading, since neither of these gentlemen knew anything about the international law that he was discussing. Mr. Adams’s opinion is not that of a jurist and parts of it are not in very good taste.
From the lawyer’s standpoint the real legal document in the case is Chief Justice Cockburn’s dissenting opinion. Here is something worthy of study. He no doubt felt justified under the circumstances in assuming an advocate’s attitude. He had the example of Charles Francis Adams. When at the bar Cockburn was perhaps the most impressive and powerful barrister in England, and at Geneva he fully sustained his great fame. He accomplished only one thing so great as this dissenting opinion, and that was his marvelous summing up of the evidence in the famous prosecution of the Tichborne claimant. He fully argued the whole arbitration. His grasp of the propositions of law, his wide acquaintance with the authorities, his unfailing memory of facts, never missing a document or any evidence bearing upon the particular issue, his enlivening sarcasm, restrained but cutting, upon Mr. Davis’s performances, his exposure of the pitiful bid for the favor of the Brazilian, his contemptuous refutation of Stämpfli, make a presentation from the English standpoint that dwarfs every other utterance in the case. He is here the advocate par excellence, preëminently the kind of intellect which sees through the innumerable details to the few controlling facts, around which he masses the evidence with the artistic power of a masterly pleader.
He discusses first his strongest position, the Florida, and his skill in argument enables him to demolish the contention of the other arbitrators. There he is unanswerable. He proves by international law that when the Florida became commissioned as a Confederate cruiser, whatever her prior status had been, she was entitled to recognition as a man of war, and he proves it by an American case. As to the Alabama he frankly states his own opinion that England was liable. As to the Shenandoah he proves the contention that England was required only to exercise due care in preventing the enlistment of men, and he proves it by the use of American precedents. When a competent historian, in an adequate way, comes to write the story of the Geneva Arbitration, Cockburn’s surpassing feat of advocacy will receive its fitting tribute.
It cannot be said that the Geneva Arbitration added much knowledge to the science of international law, beyond the fact that it has ever since rendered this country perfectly scrupulous in its duties as a neutral. One occurrence during the Civil War was of some importance. Commodore Wilkes in command of the San Jacinto stopped on the high seas the British steamer Trent and took from her the Confederate envoys Mason and Slidell who had escaped through the blockade to Havana. He brought them as prisoners to this country. Secretary Seward, who had a sort of genius for getting on the wrong side of a legal question, took the position that the seizure was entirely justifiable, but President Lincoln, better advised by Caleb Cushing and Lieber,7 moderated Seward’s bellicose attitude. The envoys were surrendered and Seward wrote a letter to appease his wounded feelings, in which he asserted that the English position was precisely that which this country had always supported but which England had constantly denied. There was some truth in the statement, but Seward’s information probably came from Cushing and Lieber in the State Department.
One curious arbitration with Great Britain is a matter that most Americans at the present day would be glad to forget. In the War of 1812 a large number of slaves had followed away the British troops. The Treaty of Ghent that closed the War of 1812 provided for an arbitration of this matter. Slavery being involved, the government followed up this matter with almost religious enthusiasm. After many years England paid $1,204,960, rather than return black men, who had once breathed English air, and were therefore free, to slavery in the “land of the free.” It was such things as this that made England so skeptical regarding the American attitude toward slavery.
In 1872 the German Emperor arbitrated the war boundary between Vancouver Island and that part of the United States which was the Territory of Washington. In 1877 an award required the United States to pay $5,500,000 to Canada for trespasses by Americans upon Canadian fishing rights. It would seem that those covetous Yankees could have been kept away from the Canadian fishing grounds for less money, especially when the government was to pay the bill and leave the depredators with their ill-gotten gains.
With Canada we have had a number of arbitrations. Besides the two spoken of, the Alaskan boundary as to the Canadian territory was determined in 1903. The final fisheries arbitration in 1910 ended in another award. But one of the most important from the standpoint of international law was the Fur Seal Arbitration in 1893. There was in this arbitration a splendid display of forensic oratory between James C. Carter for the United States and Sir Charles Russell for the English—or perhaps a better term would be the Canadians, since they have proven themselves a great nation by self-sacrifice and dauntless valor on many a stricken field.
The Pribilof Islands belong to the United States. The seals always resort to those islands to bear their young at a certain season of the year. At another season of the year they seek the mainland. Mr. Carter evolved the novel proposition that these seals, which were wild animals, and in which no individual could have a right of property until capture, as all law, Roman, English, and American, unquestionably decided, were yet the property of the United States as a species of national property. His whole argument was based upon the fact that the herds resorted to the Pribilof Islands to bear their young. If this proposition was sound it followed that the herds remained our national property even when away from the Islands. Hence when they resorted to the mainland the hunters who killed them were trespassing upon our national property. But a purpose on the part of the animals to feed on the mainland was as important as a purpose of production of progeny; both were entirely natural processes and one had no precedence over another. But the whole proposition was entirely unsound, and would instantly become so if it were applied to wild fowl or birds.
Mr. Carter was a great lawyer with much subtlety of analysis, but he had not the robustness of intellect of Sir Charles Russell. Any one with an ordinarily acute mind can detect the flaws and fallacies in the Carter argument. One naturally wonders how any set of sound lawyers could have supposed that other acute minds would accept such a proposition. But it is to be said that this position was taken in default of a better one that had been adopted. An unscrupulous Russian had sold to gullible representatives of our government a set of forged Russian documents. They were quoted from at length in the brief of facts filed by us, but just before the hearing it was admitted that the documents never had had any authenticity and were gross frauds. The treaty of 1892 which provided for the arbitration required that the arbitrators should be jurisconsults of distinguished reputation. Our country chose such a jurisconsult as one and Senator Morgan as the other arbitrator. Our jurisconsult, of course, voted against our country, but Senator Morgan found no difficulty in voting for us. He may therefore pass as one who would be called at this day “one hundred per cent American.”
This country was really a party to the arbitration of the Venezuela boundary with Great Britain in regard to which President Cleveland startled the country by assuming such a warlike tone. After all the excitement and misleading of the country by a dependence on baseless claims of Venezuela we had the mortification of having Chief Justice Fuller and Justice Brewer, jurisconsults in fact, decide against the unsupportable pretensions. The worst of it was that we had taken the position in defense of a rascally government, which would never have appealed to us if it had not been in the wrong. Canning, the English Foreign Secretary, claimed that he invented the Monroe Doctrine in the grandiloquent phrase: “I called a new world into existence to redress the balance of the old.” Perhaps he did so, but John Quincy Adams, our Secretary of State, claimed it as his own invention. If Canning did invent the doctrine the Venezuela case would simply prove the cynical old saw, “Chickens come home to roost.” If Canning could have foreseen what the Monroe Doctrine would turn out to be, he certainly would not have been so temerarious in his claim.
Some rules of international law that were supposed until 1914 to have been well settled were rapidly unsettled during the Great War. Until our entry into the war it is plain that our diplomatic writing needed a Caleb Cushing in the background. We may take the case of the Lusitania’s destruction. It is a good instance of writing first and trying to think afterwards. The sequence of events will show these facts. On February 4, 1915, the German government officially announced to our government, first, that it would sink all enemy merchant vessels in British waters without taking any steps whatever to provide for the safety of passengers or crews, and, second, that it might, or its submarine officers might, by mistake torpedo a neutral vessel. The astounding proposition was the announced readiness and intention to sink a British merchant vessel with American passengers on board without warning and without providing in any way for the safety of the passengers. A possible mistake against an American vessel was a minor matter, practically immaterial under the situation where all Americans crossing the ocean were traveling on British passenger ships.
On February 10, 1915, our government protested against sinking neutral vessels or endangering American lives on neutral vessels but said nothing of American lives on British passenger vessels, thereby impliedly admitting the right to sink without warning English passenger liners with Americans on board. This was the “strict accountability note” that was afterwards sought to be considered a protest against the sinking of the Lusitania as a British liner with American passengers. It was nothing of the kind. So far as Germany was concerned, she had the right to claim that we in our note conceded that she was acting within her rights in sinking an enemy merchant vessel without warning even if Americans were aboard.
Just prior to this time the captain of the Lusitania on a prior voyage, at the request of American passengers to save their own lives supposed to be in imminent danger, had run up the American flag. On February 10, 1915, our country protested to England against the action of the captain of the Lusitania in having hoisted the American flag to save Americans at their own request. The State Department showed that it had full knowledge of the contingency of a number of Americans being on a British liner, and for a second reason Germany was entitled to assume that America conceded her monstrous claim. It probably is the fact that our State Department was no better informed, and actually thought that under international law such a massacre of neutrals was justifiable.
But to put the matter fully, Germany on February 16, 1915, reasserted without qualification her intention emphatically expressed for the second time to sink British passenger vessels with Americans on board. This note was not then answered and a second opportunity was lost to put the country right. The Lusitania was about to sail from New York with many American passengers. Sometime after April 22, 1915, the German Ambassador, von Bernstorff, drew up and dated April 22, a notice antedated as of April 22, addressed to all Americans traveling to England on an English passenger vessel that they were to be killed on the high seas without warning. Early on May 1, 1915, he published in the daily papers the notice signed “Imperial German Embassy.” The Lusitania sailed at one o’clock on May 1, and our government, knowing that many Americans were on board and that the German embassy had published a notice that they were to be killed, knowing, too, that the hour of sailing would be wirelessed to submarines lurking in ambush to kill American citizens peacefully and lawfully upon the high seas, sat supinely helpless, failed to call von Bernstorff to account, failed to send an actual warning to Germany, failed to denounce the expressed purpose of Germany. Everything considered, this is the worst failure in our diplomatic history, for a proper protest would have been effective, as the sequel showed.
Then in due course “according to program” on that direful morning of May 7, 1915, came the frightful slaughter of so many Americans, ruthlessly butchered to make a German holiday. At once came the explosion of wrath, horror, and bitter resentment and the government at last discovered in the disgust of the voters that it is contrary to the law of nations for Germany to sink on the high seas an English passenger vessel carrying American passengers, and that it was the duty of the government to protect its citizens on the open main. A protest should have been made in reply to both the German notes of February fourth and February sixteenth. It has not even been noticed that in the meantime our government wholly sacrificed the right to protest the sinking of an English merchantman carrying American goods. On that morning when the Lusitania was sinking to her grave Charles Frohman said as he bravely faced his fate: “Why fear death? It is life’s most beautiful adventure.” He went down with the ship, and he now “in yonder stars mayhap may know” what frightful destruction legally uninformed diplomatic writing may cause.8
But the Lusitania sinking settled in international law that a merchantman carrying neutral passengers cannot be lawfully sunk except after providing for the safety of passengers and crew. In this rule Germany has concurred. The further point whether neutral goods are protected provided they be not contraband will need some further elucidation.
Events that have occurred in connection with the making of peace after the late war are too recent to give as yet any proper perspective for the purposes of international law. But it may be said here that the claim of a state like China against the justice of extra-territoriality raises the question anew of how it will be possible for business to be transacted by foreigners in China under a system of half-barbarous law which is not sufficiently civilized to furnish rules applicable to the transaction of the business. Japan, of course, was able to achieve the astonishing feat of converting almost overnight a medieval group of laws into a system as thoroughly modern as any on the globe. It has laws to cover the widest ramifications of a modern industrial system in connection with a highly developed trade and commerce. From the standpoint of the history of jurisprudence it may well be doubted that any other country than Japan could have made in a few years a transformation that staggers belief. But China is in a very different case. If it is to carry on trade without granting extra-territorial rights to resident foreigners, if it expects to invite foreigners to do business in China without granting them extra-territorial law, China must transform its laws to suit the conditions of modern business and commerce. No country can enter the number of civilized nations when its population cherishes the hatred of other nations that characterized a barbarian tribe in its feeling toward all other tribes.
The history of the human race and the necessities of a social existence in contact with other nations teaches that among nations the same regard for justice must apply as that which applies in a civilized state among individuals. The primary notions of freedom and of readiness to grant equality and of respect for the equal rights of others are precisely as binding among nations as they are among individuals. In order that all should be equal before that international law which is the ligament of justice that holds nations together, any particular nation to claim an equality must be ready to concede it to others. It must make its own people respect the rights of other nationals. A country which cannot do this must be denied an equal place with other nations. This is the principle of justice applicable to nations as well as to individuals. The Elizabethan Hooker has put this controlling consideration in the finest way: “For seeing those things which are equal must needs all have one measure, if I cannot but wish to receive all good, even as much at every man’s hand as any can wish unto his own soul, how should I look to have any part of my desire herein satisfied, unless myself be careful to satisfy the like desire, which is in other men?”
[1. ]Emmerich de Vattel (1714–67). —C. J. R., Jr.
[2. ]This was the rule of Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), since overruled in Erie Railroad v. Tompkins, 304 U.S. 64 (1938). —C. J. R., Jr.
[3. ]See The Appam, 243 U.S. 124 (1916); see also James Brown Scott, “The Case of The Appam,” American Journal of International Law 10 (1916): 809–31. —C. J. R., Jr.
[4. ]See especially The Prize Cases, 66 U.S. (1 Black) 635 (1862); The Peterhoff, 68 U.S. (1 Wall.) 28 (1866); and The Bermuda, 68 U.S. (1 Wall.) 514 (1868). —C. J. R., Jr.
[5. ]For further discussion of the significance of the Alabama Arbitration Tribunal and additional bibliographic references, see J. W. H. Verzijl, International Law in Historical Perspective, vol. 10: The Law of Neutrality (Leyden: Sijthoff, 1979), pp. 116–20. —C. J. R., Jr.
[6. ]Senator John Tyler Morgan (1824–1907), Democrat from Alabama. Senator Morgan’s role in the Pribilof Islands negotiations is discussed infra, p. 408. —C. J. R., Jr.
[7. ]Francis Lieber (1800–72). —C. J. R., Jr.
[8. ]Charles Frohman (1860–1915), a leading theater impresario of the late nineteenth and early twentieth centuries. —C. J. R., Jr.