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The history of the Alabama claims - Continued. page 3


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The British case sets out by carefully limiting the scope of the arbitration to claims in respect of losses " growing out of " the acts of certain vessels. The only vessels in respect of which correspondence had arisen between the Governments, and complaint had been made by the United States, were the Florida, the Alabama, the Georgia, and the Shenandoah. On one occasion since the war mention had been made in an American despatch of the Sumter, but no claims had been made in respect of her acts. " The Queen's Government therefore assumes, as the basis of the proceedings, that the only question for the arbitrators is - Whether and how far England has been guilty of a breach of international law, with respect to those four vessels, and is liable to the claims growing out of their acts? "

In order to illustrate the difficulty under which a neutral Government often finds itself in restraining its citizens from giving active aid and support to a belligerent, and also to mitigate any adverse impression which the facts connected with the Alabama and Florida might produce on the minds of the arbitrators, by showing that the United States had been in former times at least equally negligent of international duty, the British case entered in some detail into the history of transactions which occurred in the course of the war between Spain and her revolted colonies between 1815 and 1820. At that time Spain complained bitterly of the laxity which allowed vessels, built and armed in ports of the United States, and largely manned by American citizens, to escape from American jurisdiction, and carry on war against her on behalf of the insurgent colonies. The introduction of such considerations into the British case is said by Mr. Cushing to be " worthless and absurd as argument," and to have been, altogether, " an outrageous act." It is true that the non-fulfilment by America of the duties of neutrality fifty years ago was no excuse for Great Britain's not having fulfilled them now; yet the production of these historical passages was not irrelevant, if they were calculated to impress upon the tribunal the great difficulty, in spite of the best intentions on the part of the central power, of controlling the cupidity and partisanship of individuals.

The Ministry were dispersed for the Christmas holidays, and little attention seems to have been paid to the American case before the middle of January, 1872. When its contents were known, feelings of dissatisfaction and anxiety pervaded the public mind. It dawned upon us that England was being put upon her trial; that the plaintiff was demanding an enormous sum in damages; and that we knew little about the composition of the judicial bench. The Times estimated the total claim of the United States, including that for indirect losses, at about two hundred millions sterling. But this estimate we believe to have been greatly exaggerated. Mr. Cushing contrasts with great complacency the calm and dignified attitude maintained during the next four or five months by the American Government and people, with the excitement, panic, and fluster which in his view took possession of all ranks of English society. Most people in England certainly thought that we had been less fortunate in our diplomatic representatives at Washington than the United States; that we had been outgeneralled in the negotiation, and that our Government had shown a rare capacity for blundering and misunderstanding; but as we had not the slightest intention of paying for indirect losses, whatever the tribunal might do, there was less excitement than Mr. Cushing supposes, and no alarm whatever. It would be needless to enter in detail into the narrative of the various expedients which were devised or suggested, with the view either of inducing the American Government to come round to the opinion of our ministers, that the treaty and protocols, rightly interpreted, excluded and were meant to exclude these claims; or, if that were found impossible, to negotiate a supplementary treaty getting rid of them. To the first alternative the American Government steadily declined to accede; the second they were willing to agree to. Difficulties, however, arose, which had not been overcome when the tribunal met on the 15th June, and at once set matters right by ruling out the claims. These resultless negotiations have lost all interest; but the question may still be asked - Which was really in the right, the American Government which considered that the treaty did not exclude claims for indirect losses, or the British Government which maintained that it did exclude them? To this question most persons would reply, that undoubtedly, as a matter of argument, the American Government was right. Mr. Fish, at the opening of the protocols, expressed the readiness of the United States to withdraw these claims, if an " amicable settlement " could be arrived at by the High Commission. " Exactly so," say the partisans of the exclusion theory; "and what more amicable settlement could there be than the agreement to refer the claims of the United States to arbitration, as was done by the treaty?" But this is not what was meant by Mr. Fish. He meant to say, " If we can settle this matter amicably together, now and here, you owning that reparation was due to the United States, and we desiring to remove all causes of difference and replace the nations on their old footing of friendship, in that case we will say nothing about indirect or constructive losses, but merely ask you to pay for the actual damage done by the cruisers which were allowed to escape out of your harbours." The British commissioners rejected this mode of settlement. As we have seen (see ante, p. 524), they would not admit that Great Britain lay under any liability for the acts of the cruisers, and this in the same instrument (for the treaty and protocols may be taken together as forming one instrument) in which they expressed the regret of the Government for their escape. They allowed the words to be used in the first article, with reference to all the claims therein referred to, " which are not admittedby Her Britannic Majesty's Government" Surely it is an abuse of language to say that claims which " are not admitted " have been amicably settled. The reference to arbitration involved considerable delay and great expense; it conceded nothing, but simply substituted arbitration for war, - a humane and civilised substitution, we grant, but one no more to be confounded with an " amicable settlement " than war itself. It seems that the ministers, and the commissioners likewise, were so possessed with the idea that they were inaugurating a great epoch, in which peaceful arbitration was to take the place of war, that they failed to weigh their words with sufficient care, or to appreciate the exact bearing of each step in the transaction.

On the 15th April the counter cases were filed on both sides, with express reservation of all the rights of both Governments. The special meaning of the reservation on the part of Great Britain was this - that our putting in a counter case was to be without prejudice to the position which we had taken up, that claims for indirect losses were excluded by the treaty from the consideration of the arbitrators. Two months after the presentation of the counter cases, on the 15th June, the tribunal sat again, and the United States, as was prescribed by the treaty, filed their argument. This was a printed volume of 495 pages, drawn up by the American counsel, Messrs. Waite, Evarts, and Cushing, in which the facts and arguments of the British counter case were replied to at great length. It dealt with both classes of claims, national as well as individual, being, in fact, co-extensive with the original case. The British Government, on the plea that the negotiation with the United States respecting the elimination of the former sort of claims was still pending, withheld its argument, but filed a statement before the tribunal, shortly describing the difficulty which had occurred, and moving an adjournment of the arbitration for eight months, within which time it was expected that a fresh understanding and a new point of departure would be arrived at between the two Governments.

The tribunal adjourned till the 19th June to consider the unexpected turn which affairs had taken. On that day they met again, and Count Sclopis read a paper, the effect of which was to eliminate the claims for indirect losses from the arbitration. " The arbitrators," it was said, " wish it to be understood that, in the observations which they are about to make, they have in view solely the application of the agent of Her Britannic Majesty's Government, which is now before them, for an adjournment." The statement proceeds to enumerate the classes of claims, the presentation of which had caused a difference between the two Governments, and continues: " This being so, the arbitrators think it right to state that, after the most careful perusal of all that has been urged on the part of the Government of the United States in respect of these claims, they have arrived, individually and collectively, at the conclusion that these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations, and should upon such principles be wholly excluded from the consideration of the tribunal in making its award, even if there were no disagreement between the two Governments as to the competency of the tribunal to decide thereon."

It will be noticed how prudently and warily this decision was expressed. The tribunal abstained from entering upon the question, disputed between the two Governments, whether or not these claims were inadmissible under the Treaty of Washington; much less did it offer any opinion as to their intrinsic character, whether just or unjust, moderate or excessive. It simply decided that, according to international law, such claims could not form a good foundation for an award of damages as between nations. Now this was a matter on which it was evidently within the competency of the tribunal to pronounce an opinion; and, this being so, the character of the eminent men who sat as arbitrators imparted great weight and cogency to their unanimous sentence. Accordingly, the American counsel telegraphed to Washington the contents of the arbitrators' statement, and advised that it should be acceded to. Mr. Fish telegraphed back that the President accepted this decision, and from henceforth " regards the claims set forth in the case presented on the part of the United States for loss in the transfer of the American commercial marine to the British flag, the enhanced payments of insurance, and the prolongation of the war, and the addition of a large sum to the cost of the war and the suppression of the rebellion, as adjudicated and disposed of; and that consequently they will not be further insisted on before the tribunal by the United States."

Thus were the " indirect claims " (as they were usually but incorrectly called) swept out of the case and disposed of. The direct losses occasioned by the depredations of the cruisers, and the expenses incurred in the pursuit of them, were now the only matters in respect of which claims lay before the tribunal for adjudication. The British agent (June 27) announced the acquiescence of his Government in the decision, withdrew his motion of adjournment, and filed the British argument.

Geneva, with its intellectual and cosmopolitan society, and Switzerland, with its ancient and recognised neutrality, were well chosen as the city and the country in which this international trial should be held. The cantonal Government warmly entered into the plans of the parties to the treaty, welcomed the arbitrators to their city, and placed a large and suitably arranged chamber in the Hotel de Tille - the Salle des Conférences - at their disposal. On the same day on which the British motion of adjournment was withdrawn, the President, Count Sclopis, " a man of large stature and dignified presence," read the opening discourse. M. Staempfli, who sat on the right hand of the President, is said to have had "a deep brown complexion, piercing dark eyes, jet black hair, and a quick but suppressed manner; " so that any one who entered the hall in ignorance of the nationality of the arbitrators would have been more likely to set down Helvetia's representative as having been nursed under tropic suns, than the fair complexioned Brazilian, with " an air of gentleness and affability," who represented the rising empire in the west. In the interval between December and June, Staempfli had deeply studied the cases and counter cases, had thought out a programme of operations for the tribunal, and written out carefully reasoned opinions on the salient points of the controversy. As a Republican, his sympathies naturally inclined him to side with the United States; not, of course, to an extent incompatible with judicial impartiality; and, as a Swiss Republican, his pre-conceptions are said to have been, in this particular question, specially unfavourable to England, and for the following reason. Switzerland, a weak state surrounded by great military Powers, cannot afford to pass just neutrality laws, and trust their rigid execution to the chapter of accidents; its Government must spontaneously enforce upon its citizens obedience to those laws, or the Republic would be continually getting into difficulties with foreign Powers. In England, on the other hand, the attitude of the Government has been wont hitherto to be passive; if some private individual, or one of the belligerents, puts the law in motion, or urges the Government to do so, the intention of the Legislature in favour of neutrality is executed; but not otherwise. And this, though not to be justified on strict views of international duty, has been natural with us, just as an active attitude has been natural with Switzerland, because it has not been an obvious, pressing, national interest with us to prevent our neutrality from being abused.

Each side, as we have seen, had filed its argument by the 27th June. But the article of the treaty directing this appears to have been diversely understood by the two parties. The American counsel, besides meeting in their argument the various opposing statements, whether of law or of fact, contained in the British counter case, re- argued the whole question at great length, and pressed upon the tribunal the American view of its merits with the greatest cogency that they could command. On the other hand, the British argument, which was simply entitled " Argument or Summary," was short and meagre; it aimed merely at summarising arguments which had before been advanced in the case and counter case; and it was felt, or imagined, that the British view of the question, if this were the final word upon it, would be placed at some disadvantage before the tribunal when opposed to the eloquent and forcible argument of the American counsel. Sir Roundell Palmer therefore - who had been appointed counsel to Her Majesty's Government - endeavoured to arrange with the counsel on the other side for an adjournment, so that he might have time to prepare a fresh argument; and when this did not succeed, Lord Tenterden formally moved that the arbitration should be adjourned till August, to give time to Sir Roundell Palmer to prepare a written argument in reply to that put in by the United States. The tribunal decided that there should be no adjournment. The treaty provided for no further arguments being laid before the tribunal, after the filing of the arguments which were due on the 15th June, except on particular points on which the arbitrators might themselves desire to be assisted by hearing the opinions, written or oral, of counsel. If the tribunal had allowed time for Sir Roundell Palmer to prepare an argument which the treaty did not contemplate, the American counsel must have had time to prepare a reply, and then there might have been a rejoinder and a sur-rejoinder with equal propriety, and so the arbitration might have run on to infinity.

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