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The history of the Alabama claims - Continued.


The Alabama Claims. - III. - Recall of Mr. Motley. - Joint High Commission - Alabama Claims referred to it - Meets in February, 1871 - Progress of the Negotiation - British Commissioners propose Arbitration - Expression of Regret - Settlement of the Fisheries Question - Agreement to refer the San Juan Boundary Question to the Arbitration of the Emperor of Germany: History of that Question - Articles of Treaty for settling the Alabama Claims - Board of Arbitrators - The Three Rules - Proviso or Rider appended to them on the part of Great Britain - The Fenian Claims omitted from the Treaty - Treaty ratified by the Senate - Debate on it in the House of Lords - Lord Granville's Explanations: His Assertion of the Abandonment of the Indirect Claims - Perspicacity of Lord Cairns - Speech of Lord Derby. - Nomination of Arbitrators: They meet at Geneva - The Cases of the two Governments submitted - Order of Procedure - The American Case includes Claims for Indirect Losses - Sketch of the Contents of the British Case - Excitement in England on the Subject of the Indirect Claims - Negotiations for a Supplementary Treaty - The American Government in the Right - Counter Cases filed - Proceedings on 15th June - The Tribunal rules out the Indirect Claims - Both Governments accept the Decision - Opening of the Arbitration - Views of M. Staempfli - Unsuccessful Endeavour of the British Agent to obtain Time for Sir R. Palmer to prepare a fresh Argument - The Cases of the different Cruisers separately examined - The Tribunal requests the Opinion of Counsel - Deliberates with Closed Doors - Delivers its Decision - Termination of the Arbitration - Sir A. Cockburn's " Reasons for Dissenting." - Analysis of the Award- Observations upon it.
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III. Thus matters stood till the beginning of 1871, except that Mr. Motley was suddenly recalled towards the end of 1870. The impression was general, both in England and America, that the President had thought him too prone to a policy of compromise, and that he was to be replaced by a more unbending negotiator; and when, after much difficulty, the post was filled up by the appointment of a soldier - General Schenck - that impression naturally gathered strength. But, as it happened, the truth lay in the opposite direction. Mr. Motley was recalled because he had identified himself to such an extent with the extreme views and perfervid temper of Mr. Sumner, that he did not conform faithfully to his instructions, but indulged in phrases about " burning questions of grievance," and " the gravity of the occasion," which displeased the cool-headed and sagacious President. Grant had begun to perceive that it would not do to continue to place the conduct of England in conceding belligerent rights in the fore-front of the American case; since not only international law, but the similar behaviour of other neutral nations on the same occasion, made our conduct in that particular substantially unassailable. The damage caused - directly or indirectly - by the cruisers issuing from our ports was, he correctly perceived, the true ground of claim; and the alleged premature recognition was only to be used as evidence of an unfriendly animus, which would give an air of antecedent probability to the positive breaches of neutrality with which we were to be charged.

Towards the end of 1870, Mr. Gladstone's Government proposed the appointment of a Joint High Commission, to be held at Washington, for the settlement of the Fisheries question. In assenting to the commission, President Grant proposed that ail other matters of dispute between the two Governments, including the longstanding question of the Alabama Claims, should be referred to the same tribunal. To this, Lord Granville (who had succeeded the Earl of Clarendon at the Foreign Office) consented. It was agreed that five commissioners should be appointed on each side. For England the leading commissioner was Earl de Grey, to whom were joined Sir Stafford Northcote, Sir Edward Thornton, our Minister at Washington, Sir John Macdonald, a prominent member of the Canadian Government, and Professor Mountague Bernard, the author of the learned and dispassionate essay on British neutrality to which in the foregoing narrative we have had to make frequent reference. It was considered a politic stroke on the part of Mr. Gladstone, that by requesting one of the leaders of the Conservative party (Sir Stafford Northcote) to join the commission, he in some measure anticipated and disarmed the hostility which the Opposition might otherwise be tempted to raise in Parliament, and partially committed the other side of the House to acquiescence in any treaty that might be concluded. The American commissioners were Mr. Hamilton Fish, the Secretary of State, General Schenck (whose sailing was purposely postponed that he might serve on the commission), Mr. Ebenezer Hoar, Mr. George H. Williams, and Mr. Justice Nelson. A paragraph in the Queen's Speech stated that the arrangement made with America for the holding of the High Commission included all claims for compensation which had been, or might be, made by each Government, or by its citizens, upon each other. The commission, dated February 16th, 1871, giving power to Earl de Grey and the other commissioners to negotiate and conclude a treaty, was very full and large in its expressions; it stated that they were appointed "for the purpose of discussing in a friendly spirit with commissioners to be appointed on the part of our good friends the United States the various questions on which differences have arisen between us and our good friends, and of treating for an agreement as to the mode of their amicable settlement."

The Joint High Commission met and constituted itself at Washington, on the 27th February, 1871; the first full meeting was held on the 4th March. The Alabama Claims came up for discussion on the 8th March.

The American commissioners then stated the case of their Government, explaining the grounds on which the people of the United States conceived that they had just cause to complain of the conduct of Great Britain during the war, putting in a rough estimate of the direct losses which American commerce had sustained through the depredations of cruisers which had been fitted out, or armed, or equipped, or which had received augmentation of force, in the ports of Great Britain or her colonies; and adding that, " in the hope of an amicable settlement, no estimate was made of the indirect losses" - those alleged to have arisen through the enhanced rate of insurance, the transfer of American ships to foreign flags, and the prolongation of the war, all which grievous effects were ascribed to the cruisers; "without prejudice, however, to the right of indemnification on their account in the event of no such settlement being made." Finally, they expressed the hope that the British commissioners would be able to place upon record an expression of regret by Her Majesty's Government for the depredations committed by the vessels, the acts of which were under discussion.

The British commissioners replied, in accordance with their instructions, that they could not admit that Great Britain had failed in any of the duties imposed upon her by international law, nor that she was justly liable to make good to the United States the losses occasioned by the acts of the cruisers referred to. They reminded the American commissioners of various acts of the British Government, while the war was in progress, which argued, not merely an impartial, but a friendly animus towards the United States; such as the seizure of the Alexandra, and the iron-clads, and the acquisition, at a great cost, of control over the Anglo-Chinese flotilla, which it was apprehended might be employed against the United States. They added, however, that although Great Britain had consistently disavowed her liability, she had already shown her willingness to adopt the principle of arbitration, provided that a fitting arbitrator could be found, and an agreement arrived at as to the points which should be submitted to his decision. They, therefore, would abstain from replying in detail to the arguments urged on the other side, in the hope that a common understanding might be arrived at for the reference of the matters in dispute to an impartial umpire - a course which would tend to the maintenance of amity better than their continued discussion by the parties themselves.

There is something strange and unsatisfactory in this announcement, considered as the indication of a nation's policy. Let us consider in what cases arbitration is naturally and wisely resorted to in differences between individuals. Evidently it is in those cases where the law or the equity of the matter, or both, are doubtful; so that two honest and well-intentioned men, approaching the question from different sides, might easily differ in their appreciation of it. As then some bias towards a solution favourable to self-interest is to be apprehended in the great majority of men, the reference to a third party, who is wholly impartial, commends itself to reason as a good way of putting an end to the difficulty. But this is only where the question is really doubtful, and is felt by both parties to be so. If either party is persuaded that in equity the difference ought to be decided wholly in his favour, lie will not consent to its being referred to arbitration unless either he cannot lose, but may gain, from the result of the arbitration, or an adverse decision be immaterial to him, as affecting not at all, or only in an insignificant degree, his honour and his interest. Except in these two cases, he will maintain his position, and leave his adversary, if he thinks himself aggrieved, to his legal remedy.

The rights of the matter, if we substitute nations for individuals, appear to be much the same. The Americans might reasonably consent to refer the Alabama Claims to arbitrators, because, although they entertained a strong opinion that the equity of the case was all on their side, they, as the claimants of compensation, could not lose, but might gain largely, whatever were the decision of the arbitrators. England, on the contrary, if convinced that equity was on her side, and that the claims made on her were unfounded, had no reason to consent to arbitration. Whichever way the arbitration went, she might lose, but could not possibly gain. Nor, again, was an adverse decision immaterial to her; for, firstly, it would involve a heavy pecuniary mulct; and, secondly, it could not be to her honour to be found guilty of wrong-doing by an independent tribunal, after having roundly maintained the blamelessness of her conduct. Had the question been doubtful and difficult, whether viewed in its legal or in its equitable aspect, England might, on that ground, have reasonably consented to arbitration. But our commissioners took no such ground; they professed to believe the conduct of England above reproach; like lawyers pleading for a client, they made no concessions, not one damaging admission.

But in this case, whatever the real state of international law might have been at the time of the occurrences complained of, the equity of the matter, after the full investigation which it had received, was no longer doubtful. It surely did not become Great Britain to dispute that much laxity had characterised her administration with regard to the equipment and career of several of these vessels; or that, in consequence of this laxity, the Americans had suffered harm and loss. If this was clear, then it was also clear that England owed America reparation; and to dispute her liability to make it was neither just nor dignified. At any rate, if England denied that reparation was due, she should have held to that view at all hazards. But to say, " England owes you no reparation, but we don't mind referring the matter to arbitration," was simply, as the event proved, and as any clear-sighted man could have foreseen, to court humiliation. The tribunal decided that England did owe reparation, and that, not on mere technical grounds, but on grounds of equity and reason. The inference was unavoidable, for all those who accepted the verdict as just, that but for some dimness of moral vision in England's representatives at Washington, they would have seen matters in the same light as the foreigners who sat at Geneva.

But to return to the negotiation. To the proposal of the British commissioners to refer the question to arbitration, the American commissioners replied that they would only consent to this, provided the principles by which the arbitrators should be guided could first be made matter of agreement. They gradually developed their meaning, and it appeared that they desired the definition of new rules or principles of international law, laying down more strictly than before the duties of neutral Powers in time of war. Long discussions arose on this point. The British commissioners were willing to discuss and agree upon rules the observance of which should be held binding for the future; but they thought that the best mode of conducting an arbitration was, to submit the facts to the arbitrator, and leave him free to decide on them after hearing arguments. The American commissioners answered that they were willing to consider what principles should be laid down for observance in similar cases in future, provided that those principles, when agreed to, should be held retrospectively applicable to the facts in respect of the Alabama Claims. The British commissioners felt that they were being hard pressed, said that their instructions did not permit of their agreeing to the arbitrator being fettered by rules, and sought enlightenment from England through the Atlantic telegraph. At this period of the negotiation the communication through the cable between the British commissioners and the Home Government was nearly incessant. The rules of international law proposed by the American commissioners were now brought forward and copiously discussed. So far as is known, there was little difference of opinion in the High Commission as to the soundness of these rules in themselves, nor as to the expediency of adding them to the code of international law, for the future guidance of all nations willing to accept them. But it was strongly contended by the British commissioners that no such rules were recognised as binding upon neutrals at the time when the depredations of the Alabama and the other cruisers occurred; and that it was not just that the arbitrator should try the conduct of Great Britain under an ex post facto law. Upon this point our Government ultimately gave way, and the rules were embodied in the treaty, with a proviso, however, which we shall notice when we come to the examination of that instrument. The three rules were adopted in the session of the 5th April.

During the remainder of the month various arrangements as to the mode of appointing the arbitrator, and the form of procedure, were agreed to. The American commissioners about this time reverted to the expression of a hope, to which they had given utterance at the commencement of the proceedings, that Great Britain would signify regret for what had taken place. The British commissioners (who, it will be remembered, were in constant communication with London) replied that they were authorised to express in a friendly spirit the regret felt by Her Majesty's Government for the escape, under whatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by those vessels. The American commissioners accepted with great satisfaction this expression of regret, and said they felt sure it would be received as a token of kindness and goodwill by the Government and people of the United States. The articles of the treaty referring to the Alabama Claims were then agreed to.

The remaining clauses referred to the Fisheries question and to the San Juan boundary. The treaty conceded to American fishermen for ten years the right of sea fishery on the Canadian coasts, without restriction as to distance from shore. The river fisheries were, of course, reserved exclusively for British subjects. In return, Canadian fishermen might fish in like manner on American coasts down to the 39th parallel. As to the San Juan boundary question, Articles XXXIV. to XLII.

of the treaty established the following method for its solution. Our readers are probably aware that under the treaty signed at Washington in 1846, commonly called the Ashburton Treaty, the 49th parallel was fixed as the boundary between British and American territory, from a point near Lake Superior to the middle of the channel which separates Vancouver's Island from the mainland, and thence along the middle of the said channel to the sea. This, it should be observed, was, on the part of England, an important, many thought an excessive, concession, and one which involved great sacrifices; for the fertile lower valley of the Columbia river, and the valuable establishments of the Hudson's Bay Company near its mouth, and at Puget Sound, were by the treaty given up to the United States. When the line defined in the treaty was examined, it was found that, instead of there being one broad channel between Vancouver's Island and the main, as the contracting parties seem to have supposed, the whole space was, at one point, filled up with an archipelago of islands, with narrow channels dividing them. Of these channels the two most in use were the Haro channel, lying close to Vancouver's Island, and the Rosario channel, lying close to the mainland. The British authorities maintained that the Rosario channel corresponded best to the descriptive words of the treaty, and that the boundary-line ought to be run along it; the Americans similarly maintained that the Haro was the proper channel. The reader will perceive that if the Rosario channel were adopted, the archipelago of islands, many of which, particularly that called San Juan, were large and fertile, would fall to England; if the Haro, to America. Now, it was urged by many high authorities, considering the liberal concessions made by us at the time of the Ashburton Treaty, and the importance of the question to Canada, no British minister ought to have consented, under any circumstances, to accept the Haro channel as a boundary. The utmost limits to which concession ought to have gone should have been the acceptance of a compromise, so as to run the boundary along one of the narrow, deep-water channels which intersect the middle of the archipelago. In this way about one half of the islands composing the archipelago would have fallen to America; the other half, including San Juan, to us. Such were the views of those who opposed the policy of the Government. The British commissioners, however, were directed to consent to refer the question to the arbitration of the Emperor of Germany, and to refer it in that particular form which the American commissioners were instructed to require. No power of directing or suggesting any compromise whatever was to be left to the Emperor of Germany; he was simply, after hearing both sides, and taking any evidence he pleased, to decide, finally, and without appeal, which of the two claims, that fixing the boundary to the Rosario, or that fixing it to the Haro channel, was most in accordance with the true interpretation of the Treaty of 1846. In the course of 1872 the Emperor of Germany made his award, which was in favour of the American claim. The important island of San Juan, which in equity belonged to us as rightfully as the Isle of Anglesea was thus lost to Great Britain, and the command of Fuca Straits given up.

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Pictures for The history of the Alabama claims - Continued.

Geneva
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The San Juan question
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Sir Stafford Northcote
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Mr. Adams
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M. Staempfli
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Meeting of the arbitrators on the Alabama claims
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