Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part II, Volume I

[9] *Case of the United States.

[undated.]

Part I. Introduction

In the spring of the present year (1871) five Commissioners on the part of Great Britain and five Commissioners on the part of the United States of America met at Washington in a body, which, when organized, was known as the Joint High Commission, in order to discuss, and, if possible, to arrange for, the adjustment of several causes of difference between the two Powers.

Meeting of the Joint High Commissioners at Washington.

Among the subjects which were brought before that body by the United States were the differences which arose during the rebellion in the United States, and which have existed since then, growing out of the acts committed by the several vessels, which have given rise to the claims generically known as the Alabama Claims.”¹

[10] The sessions of the Joint High Commission were many in number, and were largely devoted to the consideration of the differences referred to in Mr. Fish’s letter to Sir Edward Thornton, from* which the above-cited quotation is made. The High Commissioners, in the protocol of their thirty-sixth conference, caused to be recorded a statement of their negotiations on this subject, in the following language:

Protocol of the conferences as to the Alabama Claims. [11] “At the conference held on the 8th of March the American Commissioners stated that the people and Government of the United States felt that they had sustained a great wrong, and that great injuries and losses were inflicted upon their commerce and their material interests by the course and conduct of Great Britain during the recent rebellion in the United States; that what had occurred in Great Britain and her colonies during that period had given rise to feelings in the United States which the people of the United States did not desire to cherish toward Great Britain; that the history of the Alabama and other cruisers, which had been fitted out, or armed, or equipped, or which had received augmentation of force in Great Britain or in her colonies, and of the operations of those vessels, showed extensive direct losses in the capture and destruction of a large number of vessels, with their cargoes, and in the heavy national expenditures in the pursuit of the cruisers, and indirect injury in the transfer of a large part of the American commercial marine to the British flag, in the enhanced payments of insurance, in the prolongation of the war, and in* the addition of a large sum to the cost of the war and the suppression of the rebellion; and also showed that Great Britain, by reason of failure in the proper observance of her duties as a neutral, had become justly liable for the acts of those cruisers and of their tenders 5 that the claims for the loss and destruction of private property which had thus far been presented amounted to about fourteen millions of dollars, without interest, which amount was liable to be greatly increased by claims which had not been presented; that the cost to which the Government had been put in the pursuit of cruisers could easily be ascertained by certificates of Government accounting officers; that, in the hope of an amicable settlement, no estimate was made of the indirect losses, without prejudice, however, to the right to indemnification on their account in the event of no such settlement being made.

“The American Commissioners further stated that they hoped 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 whose acts were now under discussion. They also proposed that the Joint High Commission should agree upon a sum which should be paid by Great Britain to the United States, in satisfaction of all the claims and the interest thereon.

[12] *“The British Commissioners replied that Her Majesty’s Government could not admit that Great Britain had failed to discharge toward the United States the duties imposed on her by the rules of International Law, or that she was justly liable to make good to the United States the losses occasioned by the acts of the cruisers to which the American Commissioners had referred. They reminded the American Commissioners that several vessels, suspected of being designed to cruise against the United States, including two iron-clads, had been arrested or detained by the British Government, and that that Government had, in some instances, not confined itself to the discharge of international obligations, however widely construed, as, for instance, when it acquired, at a great cost to the country, the control of the Anglo-Chinese Flotilla, which, it was apprehended, might be used against the United States.

[13] “They added that, although Great Britain had, from the beginning, disavowed any responsibility for the acts of the Alabama and the other vessels, she had already shown her willingness, for the sake of the maintenance of friendly relations with the United States, to adopt the principle of Arbitration, provided that a fitting Arbitrator could be found, and that an agreement could be come to as to the points to which arbitration should apply.*They would, therefore, abstain from replying in detail to the statement of the American Commissioners, in the hope that the necessity for entering upon a lengthened controversy might be obviated by the adoption of so fair a mode of settlement as that which they were instructed to propose; and they had now to repeat, on behalf of their Government, the offer of arbitration.

“The American Commissioners expressed their regret at this decision of the British Commissioners, and said further that they could not consent to submit the question of the liability of Her Majesty’s Government to arbitration unless the principles which should govern the Arbitrator in the consideration of the facts could be first agreed upon.

“The British Commissioners replied that they had no authority to agree to a submission of these claims to an Arbitrator with instructions as to the principles which should govern him in the consideration of them. They said that they should be willing to consider what principles should be adopted for observance in future; but that they were of opinion that the best mode of conducting an arbitration was to submit the facts to the Arbitrator, and leave him free to decide upon them after hearing such arguments as might be necessary.

[14] “The American Commissioners replied that they *were willing to consider what principles should be laid down for observance in similar cases in future, with the understanding that any principles that should be agreed upon should be held to be applicable to the facts in respect to the Alabama Claims.

“The British Commissioners replied that they could not: admit that there had been any violation of existing principles of International Law, and that their instructions did not authorize them to accede to a proposal for laying down rules for the guidance of the Arbitrator, but that they would make known to their Government the views of the American Commissioners on the subject.

“At the respective conferences on March 9, March 10, March 13, March 14, the Joint High Commission considered the form of the declaration of principles or rules which the American Commissioners desired to see adopted for the instruction of the Arbitrator and laid down for observance by the two Governments in future.

“At the close of the conference of the 14th of March, the British Commissioners reserved several questions for the consideration of their Government.

[15] “At the conference on the 5th of April, the British Commissioners stated that they were instructed by Her Majesty’s Government to declare *that Her Majesty’s Government could not assent to the proposed rules as a statement of principles of International Law which were in force at the time when the Alabama Claims 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, agreed that, in deciding the questions between the two countries arising out of those claims, the Arbitrator should assume that Her Majesty’s Government had undertaken to act upon the principles set forth in the rules which the American Commissioners had proposed, viz:

“‘That a neutral Government is bound,

• “‘First, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure from its 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.
• [16] “‘Secondly, 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.
• “‘Thirdly, to exercise due diligence in its own ports or waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.’

“It being a condition of this undertaking that these obligations should in future be held to be binding internationally between the two countries.

“‘It was also settled that, in deciding the matters submitted to him, the Arbitrator should be governed by the foregoing rules, which had been agreed upon as rules to be taken as applicable to the case, and by such principles of International Law, not inconsistent therewith, as the Arbitrator should determine to have been applicable to the case.

“The Joint High Commission then proceeded to consider the form of submission and the manner of constituting a Tribunal of Arbitration.

“At the conferences on the 0th, 8th, 9th, 10th, and 12th of April the Joint High Commission considered and discussed the form of submission, the manner of the award, and the mode of selecting the Arbitrators.

“The American Commissioners, referring to the hope which they had expressed on the 8th of *March, inquired whether the British Commissioners were prepared to place upon record an expression of regret by Her Majesty’s Government for the depredations committed by the vessels whose acts were now under discussion; and the British Commissioners replied that they were authorized 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.

[17] “The American Commissioners accepted this expression of regret as very satisfactory to them and as a token of kindness, and said that they felt sure it would be so received by the Government and people of the United States.

“In the conference on the 13th of April the Treaty, Articles I to XI, were agreed to.”

The Treaty of Washington. The Treaty referred to in this statement was signed at Washington on the 8th day of May, 1871, and the ratifications thereof were exchanged at London on the 17th day of the following June. The articles which relate to this subject are the following;

“Article I.

[18] “Whereas differences have arisen between the Government of the United States and the Government, of Her Britannic Majesty, and still exist, *growing out of the acts committed by the several vessels which have given rise to the claims generically known as the ‘Alabama Claims;’

“And whereas Her Britannic Majesty has authorized Her High Commissioners and Plenipotentiaries 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:

“Now, in order to remove and adjust all complaints and claims on the part of the United States, and to provide for the speedy settlement of such claims, widen are not admitted by Her Britannic Majesty’s Government, the High Contracting Parties agree that all the said claims, growing out of acts committed by the aforesaid vessels, and generically known as the ‘Alabama Claims,’ shall be referred to a Tribunal of Arbitration, to be composed of five Arbitrators, to be appointed in the following manner, that is to say: One shall be named by the President of the United States; one shall be named by Her Britannic Majesty; His Majesty the King of Italy shall be requested to name one; the President of the Swiss Confederation shall be requested to name one; and His Majesty the Emperor of Brazil shall be requested to name one.

[19] *“In case of the death, absence, or incapacity to serve of any or either of the said Arbitrators, or in the event of either of the said Arbitrators omitting or declining or ceasing to act as such, the President of the United States, or Her Britannic Majesty, or His Majesty the King of Italy, or the President of the Swiss Confederation, or His Majesty the Emperor of Brazil, as the case may be, may forthwith name another person to act as Arbitrator in the place and stead of the Arbitrator originally named by such Head of a State.

“And in the event of the refusal or omission for two months after receipt of the request from either of the High Contracting Parties of His Majesty the King of Italy, or the President of the Swiss Confederation, or His Majesty the Emperor of Brazil, to name an Arbitrator, either to fill the original appointment, or in the place of one who may have died, be absent, or incapacitated, or who may omit, decline, or from any cause cease to act as such Arbitrator, His Majesty the King of Sweden and Norway shall be requested to name one or more persons, as the case may be, to act as such Arbitrator or Arbitrators.

“Article II.

[20] “The Arbitrators shall meet at Geneva, in Switzerland, at the earliest convenient day after *they shall have been named, and shall proceed impartially and carefully to examine and decide all questions that shall be laid before them on the part of the Governments of the United States and Her Britannic Majesty, respectively. All questions considered by the Tribunal, including the final award, shall be decided by a majority of all the Arbitrators.

“Each of the High Contracting Parties shall also name one person to attend the Tribunal as its agent to represent it generally in all matters connected with the arbitration.

“Article III.

“The written or printed case of each of the two Parties, accompanied by the documents, the official correspondence, and other evidence on which each relies, shall be delivered in duplicate to each of the Arbitrators and to the agent of the other Party as soon as may be after the organization of the Tribunal, but within a period not exceeding six months from the date of the exchange of the ratifications of this Treaty.

“Article IV.

[21] “Within four months after the delivery on both sides of the written or printed case, either Party may, in like manner, deliver in duplicate to each *of the said Arbitrators, and to the agent of the other Party, a counter-case and additional documents, correspondence, and evidence, in reply to the case, documents, correspondence, and evidence so presented by the other Party.

“The Arbitrators may, however, extend the time for delivering such counter-case, documents, correspondence, and evidence, when, in their judgment, it becomes necessary, in consequence of the distance of the place from which the evidence to be presented is to be procured.

“If in the case submitted to the Arbitrators either Party shall have specified or alluded to any report or document in its own exclusive possession, without annexing a copy, such Party shall be bound, if the other Party thinks proper to apply for it, to furnish that Party with a copy thereof; and either Party may call upon the other, through the Arbitrators, to produce the originals or certified copies of any papers adduced as evidence, giving in each instance such reasonable notice as the Arbitrators may require.

“Article V.

[22] “It shall be the duty of the agent of each Party, within two months after the expiration of the time limited for the delivery of the counter-case on both sides, to deliver in duplicate to each of *the said Arbitrators and to the agent of the other Party a written or printed argument, showing the points and referring to the evidence upon which his Government relies; and the Arbitrators may, if they desire further elucidation with regard to any point, require a written or printed statement or argument, or oral argument by counsel upon it; but in such case the other Party shall be entitled to reply either orally or in writing, as the case may be.

“Article VI.

“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—

• [23] “First, 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.
• “Secondly, 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.
• “Thirdly, 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.

[24] “Her Britannic Majesty has commanded 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 between the two countries arising out of those claims, the Arbitrators should assume that Her Majesty’s * Government had undertaken to act upon the principles set forth in these rules.

“And the High Contracting Parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime Powers, and to invite them to accede to them.

“Article VII.

“The decision of the Tribunal shall, if possible, be made within three months from the close of the argument on both sides.

“It shall be made in writing and dated, and shall be signed by the Arbitrators who may assent to it.

[25] “The said Tribunal shall first determine as to each vessel separately whether Great Britain has, by any act or omission, failed to fulfill any of the duties set forth in the foregoing three rules, or recognized by the principles of International Law not inconsistent with such rules, and shall certify such fact as to each of the said vessels. In case the Tribunal find “that Great Britain has failed to fulfill any duty or duties as aforesaid, it may, if it think proper, proceed to award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it and in such case the gross sum so awarded shall be paid in coin by the Government of Great Britain to the Government *of the United States, at Washington, within twelve months after the date of the award.

“The award shall be in duplicate, one copy whereof shall be delivered to the agent of the United States for his Government, and the other copy shall be delivered to the agent of Great Britain for his Government.

“Article VIII.

“Each Government shall pay its own agent and provide for the proper remuneration of the counsel employed by it and of the Arbitrator appointed by it, and for the expense of preparing and submitting its case to the Tribunal. All other expenses connected with the arbitration shall be defrayed by the two Governments in equal moieties.

“Article IX.

“The Arbitrators shall keep an accurate record of their proceedings, and may appoint and employ the necessary officers to assist them.

“Article X.

[26] “In case the Tribunal finds that Great Britain has failed to fulfill any duty or duties as aforesaid, and does not award a sum in gross, the High Contracting Parties agree that a Board of Assessors shall be appointed to ascertain and determine what *claims are valid, and what amount or amounts shall 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 Board of Assessors shall be constituted as follows: One member thereof shall be named by the President of the United States, one member thereof shall be named by Her Britannic Majesty, and one member thereof shall be named by the Representative at Washington of His Majesty the King of Italy; and in case of a vacancy happening from any cause, it shall be filled in the same manner in which the original appointment was made.

[27] “As soon as possible after such nominations the Board of Assessors shall be organized in Washington, with power to hold their sittings there, or in New York, or in Boston. The members thereof shall severally subscribe a solemn declaration that they will impartially and carefully examine and decide, to the best of their judgment and according to justice and equity, all matters submitted to them, and shall forthwith proceed, under such rules and regulations as they may pre-scribe, to the investigation of the claims which shall be presented to them by the Government of the United States, and shall examine and decide upon them in such order and manner as they may think *proper, but upon such evidence or information only as shall be furnished by or on behalf of the Governments of the United States and of Great Britain respectively. They shall be bound to hear on each separate claim, if required, one person on behalf of each Government, as counsel or agent. A majority of the Assessors in each case shall be sufficient for a decision.

“The decision of the Assessors shall be given upon each claim in writing, and shall be signed by them respectively and dated.

“Every claim shall be presented to the Assessors within six months from the day of their first meeting, but they may, for good cause shown, extend the time for the presentation of any claim to a further period not exceeding three months.

“The Assessors shall report to each Government, at or before the expiration of one year from the date of their first meeting, the amount of claims decided by them up to the date of such report; if further claims then remain undecided, they shall make a further report at or before the expiration of two years from the date of such first meeting; and in case any claims remain undetermined at that time, they shall make a final report within a further period of six months.

[28] “The report or reports shall be made in duplicate, and one copy thereof shall be delivered to the *Secretary of State of the United States, and one copy thereof to the Representative of Her Britannic Majesty at Washington.

“All sums of money which may be awarded under this Article shall be payable at Washington, in coin, within twelve months after the delivery of each report.

“The Board of Assessors may employ such clerks as they shall think necessary.

“The expenses of the Board of Assessors shall be borne equally by the two Governments, and paid from time to time, as may be found expedient, on the production of accounts certified by the Board. The remuneration of the Assessors shall also be paid by the two Governments in equal moieties in a similar manner.

“Article XI.

[29] “The High Contracting Parties engage to consider the result of the proceedings of the Tribunal of Arbitration and of the Board of Assessors, should such Board be appointed, as a full, perfect, and final settlement of all the claims hereinbefore referred to; and further engage that every such claim, whether the same may or may not have been presented to the notice of, made, preferred, or laid before the Tribunal or Board, shall, from and after the conclusion of the proceedings of the Tribunal *or Board, be considered and treated as finally settled, barred, and henceforth inadmissible.”

What the United States will attempt to establish. In accordance with the provisions of Article III of the Treaty, the United States have the honor to lay before the Tribunal of Arbitration this their “Printed Case,” accompanied by the documents, the official correspondence, and other evidence on which they rely. They propose to show, by a historical statement of the course pursued by the British Government toward the United States, from the outbreak of the insurrection in the Southern States of the United States, that there was on the part of the British Government a studied unfriendliness or fixed predisposition adverse to the United States, which furnished a constant motive for the several acts of omission and commission, hereinafter complained of, as inconsistent with its duty as a neutral.

Having adduced the evidence of tips fact, the United States will next endeavor to indicate to the Tribunal of Arbitration what they deem to have been the duties of Great Britain toward the United States, in respect to the several cruisers which will be named in this paper.

[30] They will then endeavor to show that Great Britain failed to perform those duties, both generally and specifically, as to each of the cruisers; and that such failure involved the liability to remunerate *the United States for losses thus inflicted upon them, upon their citizens, and upon others protected by their flag.

Lastly, they will endeavor to satisfy the Tribunal of Arbitration that it can find, in the testimony which will be offered by the United States, ample material for estimating the amount of such injuries, and they will ask the Tribunal to exercise the powers conferred upon it by Article VII of the Treaty, in awarding “a sum in gross, to be paid by Great Britain to the United States, for all the claims referred to.”

Evidence and documents, and how referred to. In April, 1869, the President communicated to the Senate a mass of official correspondence and other papers relating to those claims, which was printed in five volumes. These, and two additional volumes, containing further correspondence, evidence, and documents accompany this case. The whole will form “the documents, the official correspondence, and the other evidence on which [the United States] relies,” which is called for by Article III of the Treaty. Reference will be made throughout this paper to these volumes thus: “Vol. I, page 1,” &c., &c., &c. The United States understand, however, that they may, under the terms of the Treaty, present hereafter “additional documents, correspondence, and evidence,” and they reserve the right to do so.

1. Mr. Fish to Sir Edward Thornton, January 30, 1871, Vol. VI, page 16.