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The history of the Alabama claims - Continued. page 2


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The Alabama Claims were dealt with in the first eleven articles of the Treaty of Washington. In the first article it was agreed, after the expression of regret before noticed, that the claims " generally known as the Alabama Claims " should be referred to a board of five arbitrators, of whom two were to be nominated by the high contracting parties, and the remaining three by the Emperor of Brazil, the King of Italy, and the President of the Swiss Confederation, respectively. In the second article it was provided that the arbitrators should meet at Geneva on as early a day as possible after their nomination, and proceed to examine and decide all questions that should be laid before them by the two Governments, each of which should also name an agent to attend the tribunal, and represent it generally in all matters connected with the arbitration. The next three articles prescribed the mode in which the case of each Government, with documents and evidence, direct and rebutting, should be laid before the tribunal.

The sixth article contained the three rules already referred to. " In deciding the matters submitted to the arbitrators, they shall be governed by the following three rules, which are agreed upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the arbitrators shall determine to have been applicable to the case.

" Rules. - A neutral Government is bound: -

  1. "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 to carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction 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.
  2. "Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.
  3. "To exercise due diligence in its own ports and waters, and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties."

To these rules the following curious proviso was appended: - "Her Britannic Majesty has commissioned her high commissioners and plenipotentiaries to declare that Her Majesty's Government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I. arose; but that Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agrees that, in deciding the questions arising out of those claims, the arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in those rules." At the end of the article it was stated that the high contracting parties agreed to observe these rules as between themselves in future; and to bring them to the knowledge of other maritime Powers, and invite them to accede to them.

The seventh article directed the arbitrators to make a separate finding in the case of each cruiser, as to whether Great Britain had or had not violated the obligations of neutrality in her regard. Should the tribunal find that Great Britain had failed to discharge her duty in any such respect, it was empowered to proceed, if it thought proper, to award a sum in gross, to be paid by Great Britain to the United States, in satisfaction of all the claims referred to it, such gross sum being payable in coin at Washington within twelve months after the date of the award. If, however, the tribunal, while finding that Great Britain had failed more or less to perform the duties incumbent upon her as a neutral, should prefer not to award a sum in gross, it was agreed (Article X.) that a board of three assessors, to be nominated respectively by the two Governments and by the Italian Minister at Washington, should be empowered to ascertain and determine what claims were valid, and what amount or amounts should be paid by Great Britain to the United States on account of the liability arising from such failure as to each vessel, according to the extent of such liability as decided by the arbitrators.

The claims of Canada on the United States, on account of depredations committed in the Fenian raid, were brought forward by the British commissioners, who desired that articles for their settlement should be inserted in the present treaty. But the American commissioners refused to enter upon the discussion of this particular class of claims, and the matter was not pressed.

The entire treaty was framed on the 4th May; on the 8th May it was signed, and the labours of the high commission terminated.

The Treaty of Washington was received, not, indeed, with acclamation, but with a discriminating approval, on both sides of the Atlantic. The Senate of the United States ratified it by a majority of fifty to twelve, rejecting some amendments brought forward by Mr. Sumner, who, with characteristic impetuosity, objected to the words of regret introduced in the preamble of the first article, as not being sufficiently apologetic. A long debate arose in the House of Lords, on the 12th June, upon the motion of Lord Russell, that an humble address should be presented to Her Majesty, praying Her Majesty not to ratify any convention for the settlement of the Alabama Claims which imposed as binding on the arbitrators any conditions or rules other than the law of nations, and the municipal law of the United Kingdom, as existing and in force at the time when the alleged violations of neutrality occurred. Lord Granville vindicated the conduct of the Government. With regard to the original proposal to negotiate, he said that, although at the end of 1870 the alarming state of Europe had made the Government desirous of closing all questions still open with the United States as soon as possible, that proposal did not emanate from us, the Government having adopted the opinion of his lamented predecessor, Lord Clarendon, that, after the failure of the Stanley-Johnson convention, the next proposal to negotiate should come from the United States. As to the Canadian elaims on account of the Fenian raid, Lord Granville said, " We did not press them, because, having arrived at a satisfactory arrangement on all the numerous and complicated questions at issue between us and the United States; and knowing that the opinion of the high commissioners, including that of Sir John Macdonald, was, that in the present state of parties it would be impossible to obtain from the United States a recognition of these claims, we had to consider whether we ought to destroy all the fruits of the high commission, and allow a third failure to be the result of the negotiation." He denied that the conduct of the British commissioners during the negotiation could be fitly described as a series of concessions. The claim to hold us responsible for the premature recognition of Southern belligerency was brought forward by the American commissioners, but abandoned in consequence of the resolute opposition of our negotiators. And speaking of Mr. Fish's large sketch of a host of enormous claims for " indirect losses " in the very beginning of the protocols, Lord Granville said, " These were pretensions which might have been carried out under the former arbitration [that arranged between Lord Stanley and Mr. Johnson]; but they entirely disappear under the limited reference, which includes merely complaints arising out of the escape of the Alabama," - he must have meant to add, " and other vessels of her class." General Schenck, the new American Minister, was present in the House of Lords during this debate, and his presence was referred to by Lord Granville in terms of elaborate compliment. Lord Granville, in expressing himself thus, did but interpret the treaty in the way in which it was at that time almost universally interpreted here; but we were all mistaken, as will appear in the sequel. The keen eye of Lord Cairns was not at fault even then. He quite agreed, he said, in the opinion that under the arbitration proposed by Lord Stanley and Lord Clarendon it was quite possible for the United States to have made extravagant claims. " But," he continued, " what is there in the present treaty to prevent the same thing? I cannot find one single word in these protocols or in these rules which would prevent such claims being put in and taking their chance, and under the treaty proposed by my noble friend (Lord Stanley) they could do no more."

Lord Derby, replying to Lord Granville, disapproved of the "quasi apology" contained in the treaty. He said that the Senate had rejected the former convention because they doubted whether the arbitrators appointed under it would, after all, decide in favour of the American claims. " They declined to play the game, unless they were made tolerably sure "beforehand that they would win." He complimented the American negotiators on the shrewdness and tenacity they had displayed, but could not congratulate the British commissioners on that display of "lamb-like meekness" which had led them to make concessions such as were never made before. As to the abandonment of the pretension to hold us responsible for the recognition of Southern belligerency, or of the claim to recover from us the cost of making good the constructive damage done to American trade, he regarded neither of these as a serious concession, because the Americans could never have thought for a moment that we should entertain such claims.

Lord Russell did not press his motion to a division, and in the Commons the merits of the treaty were not at that time' seriously discussed. In the course of the summer, the powers of nomination conferred by the treaty, with a view to the appointment of a board of arbitrators, were duly exercised. The United States nominated Charles Francis Adams, the able and vigilant American Minister in London during the war. Great Britain nominated Sir Alexander Cockburn, the Lord Chief Justice of England. The choice of the King of Italy fell on Count Frederic Sclopis, an ex-minister of state and senator of the kingdom of Italy, who was well known as the author of various writings of merit, in the field of history and jurisprudence. The President of the Swiss Confederation appointed M. Jacob Stœmpfli, who had once been President himself. Finally, the Emperor of Brazil nominated the Baron d'Itajuba, the Brazilian Envoy at Paris. Lord Tenterden, Assistant Under-Secretary in the Foreign Office, was appointed to be the English agent; and Mr. Bancroft Davis was named agent for the United States.

The first conference of the board of arbitrators took place on the 15th December, 1871. They immediate proceeded to constitute themselves into a tribunal, electing Count Sclopis as their president, and M. Favrot secretary. The agents of the two Powers then filed the respective cases of their Governments, together with corroborative documents. The American case, with its appendices, extended to eight octavo volumes, and filled more than five thousand pages. The British case was also tolerably voluminous, if taken in connection with its appendices, which filled four volumes. It will be observed that the United States appeared before the tribunal to some extent in the character of a plaintiff, and that their case might be regarded as their indictment against Great Britain. The British case, on the other hand, was prepared in ignorance of the exact line and range which the American complaints would take; it was therefore inevitable that much that was contained in the American case should be but imperfectly met in the British case. This had been foreseen and duly provided for at the time of the drafting of the treaty. The tribunal accordingly ordered the respective counter cases to be filed on or before April 15, and then adjourned till the 15th June. The counter cases, it will be seen, were answers to the respective cases; at the meeting of the 15th June the arguments on each side, answering the counter cases and arguing the whole question on the merits, were to be given in; and then the tribunal was to consider and pronounce its decision.

On the delivery of the American case to the tribunal on the 15th December, it was understood in England for the first time that the claims in respect of indirect - or, as Mr. Cushing# prefers to call them, national - losses, originally put forward by Mr. Fish at Washington, had not been withdrawn by the United States. The framer of the case divides the claims of the United States into five categories, as follows: -

  1. For direct losses, occasioned by the destruction of vessels and their cargoes, and other property, by the insurgent cruisers.
  2. For national expenditure in the pursuit of those cruisers.
  3. For loss in the transfer of the American commercial marine to the British flag.
  4. For enhanced payments of insurance.
  5. For the prolongation of the war, and the addition of a large sum to the cost of the war and the suppression of the rebellion.

The case itself furnishes a formal estimate of loss only under the first of these categories. The claims for compensation on account of loss of property occasioned by the cruisers amounted, up to the date of the Treaty of Washington, to about fourteen millions of dollars. The claim under the head of "pursuit of cruisers" could not be less, we are told, than " several millions of dollars." With regard to the loss under the head of transfer of commercial marine, the case quotes a speech of Mr. Cobden drawing a gloomy, we trust an overcharged, picture of the disastrous effect which the operations of the cruisers produced, in diminishing the number of ships sailing under the American flag. On this, and also on the following head, that relative to enhanced insurance, the case supplies some materials for forming a judgment, and then requests the tribunal to estimate the losses incurred. As to the fifth head, the case says, " After the battle of Gettysburg the offensive operations of the insurgents were conducted only at sea, through the cruisers;... the war was prolonged for that purpose; " in the hope, says the writer, on the part of the Confederates, of involving Great Britain in war with the United States. How unfair and untrue this account of the matter was, the reader has only to turn back to Chapters V. and IX. of this History to convince himself. Finally, the United States claimed (" Case," p. 479) interest on the full amount of their losses, occasioned, as they alleged, by British default, at the rate of seven per cent, per annum, from the 1st July, 1863, to the day when the award, if any were made, would be payable under the treaty. Their case was concluded with the expression of an earnest hope that the tribunal would, instead of referring the detailed examination of the claims to a board of assessors, exercise the power conferred upon it, to award a sum in gross to be paid by Great Britain to the United States.

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Pictures for The history of the Alabama claims - Continued. page 2

Geneva
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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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