No. 16.
Mr. Fish to General Schenck.

No. 181.]

Sir: I have given very careful attention to the note of the 20th March, addressed to you by Earl Granville, professing to state the reasons which induced Her Majesty’s Government to make the declaration contained in his previous note to you of 3d February, that, in the opinion of Her Majesty’s Government, it is not within the province of the Tribunal of Arbitration at Geneva to decide upon the claims for indirect losses and injuries put forward in the Case of the United States.

His Lordship declares this statement to be made upon the invitation which this Government appears to have given. I should regret that what was intended only as a courteous avoidance of the naked presentation of a directly opposite opinion to that which had been expressed on behalf of the British Government, un sustained by any reasons, should have subjected His Lordship to the necessity of an elaborate reply. It was not the desire of this Government to invite any controversial discussion, nor have they now any wish to enter upon or continue such discussion.

Some remarks, however, appear in the note of His Lordship which seem to require a reply.

It opens with a seeming denial of the accuracy of my assertion that claims for indirect losses and injuries are not put forward for the first [Page 461] time in the “Case” presented by this Government to the Tribunal at Geneva—that for years they have been prominently and historically part of the “Alabama claims”—and that incidental or consequential damages were often mentioned as included in the accountability.

It cannot be supposed that His Lordship intends more than to say that the claims for indirect or national losses and injuries were not “formulated” by this Government, and the amount thereof set forth in detail and as a specific demand, tor he admits that on the 20th November, 1862, within a few weeks after the “Alabama” had set out on her career of pillage and destruction, Mr. Adams suggested the liability of Great Britain for losses other than those of individual sufferers. In his note of that date to Lord Russell, Mr. Adams stated that he was instructed by his Government to “solicit redress for the national and private injuries already thus sustained.”

On the 19th February, 1863, Mr. Seward instructed Mr. Adams that “this Government does not think itself bound in justice to relinquish its claims for redress for the injuries which have resulted from the fitting out and dispatch of the Alabama in a British port.”

As the consequences of this fitting out began to develop themselves, and their effects in encouraging the rebellion became manifest, Mr. Adams, in an interview with Lord Russell, indicated them (as described by the latter in a letter to Lord Lyons under date of 27th March, 1863) as “a manifest conspiracy in this country (Great Britain) to produce a state of exasperation in America, and thus bring on a war with Great Britain, with a view to aid the Confederate cause.”

In a note dated April 7, 1865, addressed to Lord Russell, Mr. Adams, after complaining of the hostile policy, pursuant to which the cruisers were fitted out, says, “That policy I trust I need not point out to your Lordship is substantially the destruction of the whole mercantile navigation belonging to the people of the United States.” “It may thus be fairly assumed as true that Great Britain, as a national power is, in point of fact, fast acquiring the entire maritime commerce of the United States.”

That Lord Russell regarded this as the foundation of a claim for damages for the transfer of the commercial marine of the United States to the flag of Great Britain is apparent, in his reply to Mr. Adams, under date of May 4, 1865, when he says: “I can never admit that the duties of Great Britain toward the United States are to be measured by the losses which the trade and commerce of the United States may have sustained.”

Again, on the 20th May, 1865, Mr. Adams, writing to Lord Russell, distinctly names indirect or consequential losses. His language is, “that, in addition to this direct injury, the action of these British-built, manned, and armed vessels has had the indirect effect of driving from the sea a large portion of the commercial marine of the United States, and to a corresponding extent enlarging that of Great Britain;” that “injuries thus received are of so grave a nature as in reason and justice to constitute a valid claim for reparation and indemnification.” In the same note he says, “The very fact of the admitted rise in the rates of insurance on American ships only brings us once more back to look at the original cause of all the trouble.”

It is difficult to imagine a more definite statement of a purpose to require indemnification.

On the 14th February, 1866, after the presentation of the above-recited complaints, Mr. Seward, writing to Mr. Adams, said: “There is not one member of this Government, and, so far as I know, not one citizen of the United States, who expects that this country will waive, in any [Page 462] case, the demand that we have heretofore made upon the British Government for the redress of wrongs committed in violation of international law”

And again, on the 2d May, 1867, Mr. Seward writes to Mr. Adams: “As the case now stands, the injuries by which the United States are aggrieved are not chiefly the actual losses sustained in the several depredations, but the first unfriendly or wrongful proceeding, of which they are but the consequences.”

His Lordship also admits the mention, by Mr. Reverdy Johnson, in March, 1869, of a “claim for national losses,” which Lord Clarendon, in a paper published in the British Parliamentary Papers, “North Americano. 1, 1870,” page 18, defines “national indirect, or constructive claims.”

On 15th May, 1869, 1 instructed Mr. Motley that this Government, in “rejecting the recent Convention, abandons neither its own claims nor those of its citizens.”

Lord Clarendon, in a dispatch of June 10, 1869, to Mr. Thornton, mentioned that Mr. Motley had assigned, among the causes which led to the rejection of the Johnston-Clarendon treaty, that the “Convention was objected to because it embraced only the claims of individuals, and had no reference to those of the two Governments on each other.”

On 25th September, 1869, writing to Mr. Motley, I said: “The number of ships thus directly destroyed amounts to nearly two hundred, and the value of the property destroyed to many millions. Indirectly the effect was to increase the rate of insurance in the United States, and to take away from the United States its immense foreign commerce, and to transfer this to the merchant-vessels of Great Britain.” “We complain of the destruction of our merchant marine by British ships.” “The President is not yet prepared to speak of the reparation which he thinks due by the British Government for the larger account of the vast national injuries it has inflicted on the United States.”

In the same instruction I also wrote what seems pertinent to the present phase of the question between the two Governments: “When one power demands of another the redress of alleged wrongs, and the latter entertains the idea of arbitration as the means of settling the question, it seems irrational to insist that the arbitration shall be a qualified or limited one.”

Lord Clarendon wrote to Mr. Thornton, on 6th November, 1869, that he was officially imformed by Mr. Motley that while the President at that time abstained from pronouncing on the indemnities due for the destruction of private property, he also abstained from speaking “of the reparation which he thinks due by the British Government for the larger account of the vast national injuries it has inflicted on the United States.”

Lord Clarendon, in some “observations” on my note, (Blue Book, North America, No. 1, 1870, page 13 et seq.,) dwelt at length on my allegation of national or indirect injuries, and characterized them as “claims,” and resisted them as such. And in an instruction to Mr. Thornton, of 12th January, 1870, he recognizes the paper as relating to the “Alabama claims.” (Blue Book, North America, No. 1, 1870, page 20.)

It cannot be denied that these public or national claims (now called “indirect”) were prominently before the Senate of the United States when the Convention of 14th January, 1869, was under advisement in that body, nor that they were subsequently actively canvassed before [Page 463] the people of both countries, and especially by the press of Great Britain.

It is equally indisputable that in my note to Mr. Motley, of September 25, 1869, to which Lord Clarendon replied, there was presented the reparation which the President thought “due by the British Government for the vast national injuries it had inflicted on the United States.”

The 36th Protocol of the Joint High Commission shows that the indirect losses were distinctly presented to the notice of the British Commissioners in the very beginning of the negotiations on the subject, and that they remained unchallenged to the signing of the treaty.

At every stage, therefore, of the proceedings, from November, 1862, when Mr. Adams “solicited redress for the national injuries sustained,” to the date of the Treaty, this Government has kept before that of Great Britain her assertion of the liability of the latter for what are now termed the “indirect injuries.”

The President now learns for the first time, and with surprise, that Her Majesty’s Government accepted his suggestion that the proposed Commission should treat for “the removal of 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,’” in the full confidence that no claim would be made by the United States for the national losses which had been continuously presented.

It is not to be denied that “differences” had arisen between the two Governments respecting these claims, and the Treaty attests that the two Governments were desirous to provide for amicable settlement of all causes of difference, and for that purpose appointed their respective Plenipotentiaries. It is thus declared in the outset that the agreements which are about to be formulated are not intended to be an “amicable settlement,” but are intended, on the contrary, “to provide for a speedy settlement.” The subject of the submission in a solemn Treaty will not be narrower than the declared object sought to be accomplished in the reference, and that object was declared to be the removal of all complaints and claims.

The Treaty also attests that the differences which had arisen, growing out of the acts committed by the several vessels which had given rise to the claims generically known as the Alabama claims, still exist, and that in order to remove and adjust all complaints and claims, “all the claims growing out of the acts committed by the aforesaid vessels, and generically known as the Alabama claims, shall be referred to a Tribunal of Arbitration.”

You can bear witness that not even an intimation of the character now put forward by Earl Granville was made at any time during the deliberations of the Joint High Commission.

If Her Majesty’s Commissioners were appointed, entered upon, and continued the negotiations with this Government under instructions and with the conviction that the correspondence between Sir Edward Thornton and myself did not cover, and was not intended to cover, “as a subject of negotiation, any claim for indirect or national losses,” the withholding of such instructions, and the abstaining from the expression of such conviction on their part, was most unfortunate; and the absence of any dissent or remonstrance against this class of the claims, either when first formally presented to the Commissioners, or during the whole negotiation, or in the Protocols, is most remarkable.

These claims were presented to the British Commissioners as solemnly, [Page 464] and with more definiteness of specification, than were presented by them to the American Commissioners the claims for alleged injuries which the people of Canada were said to have suffered from what was known as the Fenian raids; yet, while the American Commissioners formally objected to the claims for the Fenian raids, as not embraced in the scope of the correspondence which led to the formation of the Commission, and recorded on the Protocols their unwillingness to enter upon the consideration, each time that they were referred to, the British Commissioners, from the first to the last, took no exception and recorded no objection to the presentation made by the American Commissioners of the claims generically known as the Alabama claims, which stand in the Protocol as a “genus” or class of claims, comprehending several species, and among them enumerating specifically the claims for indirect losses and injuries.

The positive exclusion by the Protocol of one class of claims advanced would seem to be conclusive of the non exclusion of the other class advanced with greater definiteness and precision, but with respect to which no exception was taken, and no dissent recorded.

It is difficult to reconcile the elaborate line of argument put forward by Earl Granville to show a waiver of claims for indirect losses, with the idea that at the outset of the negotiations Her Majesty’s Government did not consider the matter of public or national injuries as the basis of an outstanding claim against Great Britain on the part of the United States.

If these claims had (as Lord Granville’s note implies’, even if it does not assert) no existence in fact, and had never been “notified” or presented, and were not within the jurisdiction of the Joint High Commission, why is so much stress laid upon their assumed relinquishment?

If, on the other hand, they had existence in fact, if they had (as the references which I have made to a correspondence extending over a long series of years establish, I think, beyond the possibility of doubt) been frequently and persistently presented and notified to the British Government, why is not their positive exclusion from the reference to the arbitration shown? Why should an important class of claims, measured in their possibilities, according to the estimate of the British press, by fabulous amounts, be left to an inferential exclusion?

What interest, upon Lord Granville’s theory, could Great Britain have in the proposed abandonment of such claims, or why offer any consideration therefor?

How can Her Majesty’s Government contend, at the same moment, that the preliminary correspondence excluded the indirect or national losses, and that the possibility of admitting such claims as a subject of negotiation had never been entertained by Great Britain, and on the other hand that they offered and considered the “amicable settlement” of the Treaty, with its expressions and its recognition of certain rules, as the consideration and the price paid for a waiver of those claims by the United States?

I should not feel justified in referring to the expressions used by Earl Granville and other eminent members of the British Parliament in their legislative capacities, but for his own reference thereto, and for the responsibility to which His Lordship attempts to hold you for your presence at one of their sessions, and to which I shall again refer.

But the reference made by Earl Granville to the debate in the House of Lords on the 12th of June, and his own declaration on that occasion, that “they (the indirect claims) entirely disappear,” strengthens the [Page 465] position of this Government that they had been presented and were recognized as part of the claims of the United States.

A disappearance certainly implies a previous appearance.

Lord Cairns, long accustomed to close judicial investigation and the critical examination of statutes and of treaties, did not agree to the proposition that there had been a relinquishment of the claims. He declared that there could not be found “one single word * * which would prevent such claims being put in and taking their chance under the Treaty.”

If, therefore, you were present through the whole of the debate, you heard advanced in the House of Lords as well the opinion held by the United States as that now put forward in behalf of Great Britain.

It is true that Mr. Adams did not “define or formulate” claims for national losses. He did, however, “notify” them to Her Majesty’s Government. During the war these claims were continually arising and increasing, and could not then be “defined,” and the time for “formulating” them would not arise until a willingness to enter upon their consideration arose.

It is to be remembered that in the spring of 1863 Her Majesty’s Government exhibited some impatience when Mr. Adams communicated losses, and claims of indemnfication therefor, and Lord Russell, Tinder date of 9th March of that year, wrote to Mr. Adams that “Her Majesty’s Government entirely disclaim all responsibility for any acts of the Alabama, and they hoped that they had already made this decision on their part plain to the Government of the United States.”

In July, 1863, Lord Russell referred Mr. Adams to his note of 9th March, and repeated the disclaimer of all liability 5 and on the 14th September, in still more marked language, he expressed the hope “that Mr. Adams may not be instructed again to put forward claims which Her Majesty’s Government cannot admit to be founded on any grounds of law or justice.” Lord Russell’s replies to Mr. Adams afford the answer to Lord Granville’s remark that “no claims (except direct claims) were ever defined or formulated.”

But although the United States, under these circumstances, could not consider that hour as the most favorable to a calm examination of the facts or principles involved in cases like those in question, and notwithstanding these admonitions, it became imperative on Mr. Adams still to present complaints.

On 30th December, 1862, he had complained of acts with the intent to “procrastinate the war.”

On March 14, 1863, he wrote to Lord Russell that “the war had been continued and sustained by the insurgents for many months past mainly by the co-operation and assistance obtained from British subjects in Her Majesty’s kingdom and dependencies.” He repeats a similar complaint on 27th March, and again on 28th April, coupled with the suggestion of the responsibility attending those who “furnish the means of protracting the struggle,”

At no time during the occurrence of the events which gave rise to the differences between the two Governments did the United States fail to present ample and frequent notice of the nature of the indirect injuries, or of their inclusion in the accountability of Great Britain.

Lord Granville admits that Mr. Johnson proposed the national claims in March, 1869. I mentioned them in my instructions to Mr. Motley, in May, 1869, and again in that of September of that year. Although I made no claim or demand for either direct or indirect injuries, I did present the vast national injuries, so that Lord Clarendon, in his reply, [Page 466] manifested no difficulty in discerning that the United States did expect, and would demand, the consideration of national, indirect, or consequential losses.

I can therefore have no doubt whatever that the assertion in my instruction to you of 27th February, commented upon by Lord Granville, does “accurately represent the facts as they are shown in the correspondence between the two Governments.”

Earl Granville endeavors to limit the nature and extent of the claims,, by an argument based upon the “expression” the “Alabama claims,” which (he says) first occurs in a letter which he designates. It may be true that this “expression “appeared for the first time, in the official correspondence, in the letter and at the date indicated but His Lord ship overlooks the fact that in this letter the language used is “the so-called Alabama claims,” showing evidently the adoption, for convenience, of a then familiar term in common use, designating by a short generic, name the whole class and variety of claims, for the various injuries of which the United States had, at different times, made complaint.

The question, however, is not what was understood by the expression “Alabama claims,” in 1867, but what the same expression implied in 1871, when introduced into the Treaty. It might not be difficult to show that the expression had in 1867 acquired a definite sense far more comprehensive than that to which Earl Granville desires to restrict it. It is impossible to deny that in 1871 it was as comprehensive in signification as the United States claim it to have been.

The official correspondence of this Government, which was published, and is within the knowledge of Her Majesty’s Government, included the indirect injuries under the expression “the Alabama claims.” They were prominently put forward in the debates and the public discussions on the rejection of the Johnson-Clarendon treaty. The American press abounded in articles setting them forth as part of the “Alabama claims.”

The President enumerated them in his annual message to Congress in December, 1869.

The British press, in the summer of 1869, and subsequently, discussed most earnestly the indirect losses under the title of “Alabama claims.”

Continental jurists and publicists discussed the national claims on account of the prolongation of the war under the head of “Reclamations” having “qu’un rapport indirect, et nullement un rapport direct avec les déprédations réellement commises par les croiseurs.”

In the year 1870, Professor Mountague Bernard, subsequently one of the Commissioners on the part of Her Majesty, and whose name is signed to the Treaty, published a very able but intensely one-sided and partial defense of the British Government, under the title of “A Historical Account of the Neutrality of Great Britain during the American Civil War.” The XIVth chapter of this work, as appears in the table of contents, is entitled the “Alabama claims.” Under this head he presents the demand made by the United States for redress for “the national as well as the private injuries.” Professor Bernard knew the extent of our complaints and of our demands. In this work he summarizes an instruction from this Department to the Minister of this country in Great Britain as presenting “the opinion of this Government” that the conduct of England “had been a virtual act of war.” He says, “The estimate which the American Government has thought fit to adopt of its own claims * * * is not favorable to a settlement;” that among the reasons for the rejection of the Convention of January 14, 1869, was the fact that it embraced only the claims of individuals [Page 467] and had no reference to those of the two Governments on each other. He sets forth that the President assigned, among the reasons for his disapproval of that Convention, that “its provisions were inadequate to provide reparation for the United States in the manner and to the degree to which he considers the United States entitled to redress,” and that the President further declared that he was not then (1869) “prepared to speak of the reparation which he thinks due by the British Government for the larger account of the vast national injuries it has inflicted on the United States.” And, further, that this Government held that “all these are subjects for future consideration, which, when the time for action shall come, the President will consider with sincere and earnest desire that all differences between the two nations may be adjusted amicably and compatibly with the honor of each and to the promotion of future concord between them.”

With this knowledge of the demand for “national” redress; that the American opinion regarded the conduct of Great Britain as “a virtual act of war;” with the expressed opinion that the American estimate of its claims was extravagant; with the knowledge that a previous Convention had recently been rejected, because, among other reasons, “it embraced only the claims of individuals, and had no reference to those of the Government; that the President expected reparation for the vast national injuries” which Great Britain had inflicted on the United States, and that he “held all these subjects for future consideration when the time for action shall come;” when “the time for action” did come, Professor Bernard, bringing this knowledge, appeared as one of Her Majesty’s Commissioners to treat on these very subjects.

It would be doing great injustice to the other eminent and distinguished statesmen and diplomatists who were his associates on the British side of the Commission, to entertain the belief that they brought less knowledge on these points than was held by Professor Bernard.

I hold that enough has been shown to establish that the British Commissioners who negotiated the Treaty did not enter upon the important duty committed to them in ignorance of the nature or of the extent of the claims which the American Government intended to present and to have settled.

Earl Granville’s effort to limit and confine the meaning of the expression “the Alabama claims” might induce one who had not the text of the Treaty at hand to suppose that the reference to the Tribunal of Arbitration was limited by the restricted meaning which he attempts to give to the phrase “Alabama claims.” But the words of the Treaty impose no such limitation; they are that, “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.’ 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 which are not admitted by Her Majesty’s Government, the High Contracting Parties agree that all the said claims growing out of the acts committed by the aforesaid vessels, and generically known as the ‘Alabama claims,’ be referred,” &c.

All the claims growing out of the acts committed, &c., are the subject of reference.

That which grows out of an act is not the act itself; it is something consequent upon or incident to the act—the result of the act; and whether the claims to which Her Majesty’s Government now takes exception [Page 468] be the results of the acts committed by the vessels is, in the opinion of this Government, for the decision of the Arbitrators.

After the positive declaration of Earl Granville that it “never could have been expected” that Her Majesty’s Government would accept the proposition of payment of a gross sum in satisfaction of all our claims, it is apparent that an exposition, at this time, of the reasons which led the President to hope that the amicable settlement which he proposed, coupled with the suggestion of large pecuniary concessions on our part, would be made, will not tend to remove the differences now existing between the two Governments respecting the jurisdiction of the Geneva Tribunal.

I as deeply regret that Her Majesty’s Government cannot understand upon what that hope was founded as I deplore what now appears to have been the predetermination of Her Majesty’s Government to reject every proposal which involved an admission of any liability on the part of Great Britain.

Another proposal, having no similitude to the previous one submitted by us, was made by Her Majesty’s Commissioners. They accepted, without objection, the American statement of the subject-matter in dispute, as it was made, and they proposed, instead of the “amicable settlement’’ offered by the American Commissioners, “a mode of settlement” by arbitration, a litigation, a lawsuit in which Great Britain should deny all liability to the United States for all the injuries complained of. After sundry modifications, their proposal was accepted by the United States, who were thus compelled to bring before the Tribunal the same presentment of their losses which they had laid before Her Majesty’s Commission. The subject-matter of the submission made by the American “Case” tothe Geneva Tribunal differs in no particular from that which was accepted as the statement of the American claims, without objection on the part of the British members of the Joint High Commission.

The President is now, for the first time, authentically informed that a waiver by this Government of the claims for indirect losses which were formally presented was, in the opinion of Her Majesty’s Government, also contained in this second proposal, was a necessary condition of the success of the negotiation, and that “it was in the full belief that this waiver had been made that the British Government ratified the Treaty.” Such a relinquishment of a part of the claims of this Government is now made by Earl Granville the pivot and real issue of the negotiation. He appears to imply that the price paid by Her Majesty’s Government to obtain that waiver was the concession referred to in His Lordship’s note, and which, he says, would not have been expected by this Government “if the United States were still to be at liberty to insist upon all the extreme demands which they had at any time suggested or brought forward.”

Here, again, is a clear intimation that Her Majesty’s Government were not in ignorance of the character of our demands, but that they were well “known,” and that the consideration to be paid for their waiver (whether real or imaginary) had been deliberately determined.

Is it not surprising that such “extreme demands” should be waived on the one hand, and such “concessions” made on the other, without a word of reference or suggestion that the one was conditioned on the other?

You can bear witness that at no time during the deliberations of the Joint High Commission was such an idea put forward by Her Majesty’s Commissioners.

The Protocols are utterly silent on the subject.

[Page 469]

That no such relinquishment was incorporated into the text of the Treaty is clear enough. Why not, if thus deemed at the time, by Her Majesty’s Government, the hinge and essential part of the Treaty?

What are termed the “concessions” on the part of Great Britain appear in the Treaty. If the relinquishment by the United States of a part of their claim was the equivalent therefor, why is not that set forth? Throughout the Treaty are to be found reciprocal grants or concessions, each accompanied by its reciprocal equivalent.

How could it happen that so important a feature of the negotiation, as this alleged waiver is now represented to be was left to inference, or to argument from intentions never expressed to the Commission or the Government of the United States until after the Treaty was signed?

The amplitude and the comprehensive force of the first article (or the granting clause) of the Treaty did not escape the critical attention of Her Majesty’s Commissioners; but was any effort made to limit or reduce the scope of the submission or to exclude the indirect claims?

You were informed in my instruction of February 27 that this Government does not consider the Treaty as of itself a settlement, but as an agreement as to the mode of reaching a settlement. To that opinion the President adheres. He cannot admit that the treaty provision for a settlement is in substance or legal effect the same as the “amicable settlement” spoken of in the conference held on the 8th of March, as is set forth in the Protocol. The differences between the two stand out clear and broad. One would have closed up, at once and forever, the long-standing controversy; the other makes necessary the interposition of friendly Governments, a prolonged, disagreeable, and expensive litigation with a powerful nation, carried on at a great distance from the seat of this Government, and under great disadvantages; and, more than all, it compels the re-appearance of events and of facts, for the keeping of which in lifeless obscurity the United States were willing to sacrifice much, as they indicated in their proffer to accept a gross sum in satisfaction of all claims.

The United States can assent to no line of argument which endeavors to transfer the waiver of claims for indirect injuries (implied from their withholding the estimate of the amount of such claims) from the rejected proposal of the American Commissioners for a settlement, “à’l’amiable,” by the Joint High Commission, and to incorporate it “sub silentio” in the arbitration proposed by the British Commissioners. The offer of this Government to withhold any part of its demand expired and ceased to exist when the acceptance of the proposal which contained the offer was refused. It was never offered except in connection with the proposal that the Joint High Commission should agree upon a gross sum to be paid in satisfaction of all the claims, and then it was repelled. It was never again suggested from any quarter. It is impossible for Her Majesty’s Government to fix upon a moment of time when there was an agreement of the contracting parties respecting such a waiver as that to which Earl Granville refers.

To the suggestion of doubt contained in the note of Lord Granville, whether “it would be advantageous to either country” to treat claims of the nature of those now under discussion “as proper subjects of international arbitration,” I can only reply that, for all practical purposes, argument upon this question is suspended, inasmuch as, in our judgment, Great Britain and the United States have bound themselves respectively by the Treaty to make such submission.

The first Article of that solemn instrument recites and declares that “all the said claims growing out of acts committed by the aforesaid vessels, [Page 470] and generically known as the ‘Alabama claims,’ shall be referred to a Tribunal of Arbitration.” Earl Granville admits that the foregoing are “the words in which the subject-matter of the reference to arbitration agreed upon is defined.”

If the “Case” of the United States, as presented at Geneva, contain claims not “growing out of acts committed” by the aforesaid vessels, then such claims are not within the reference, and must be so adjudged. In like manner, if any of the claims set forth in the American Case were not, at the date of the correspondence between Sir Edward Thornton and myself (in January and February, 1871,) “generically known” as part of the Alabama claims, they are not within the jurisdiction of the Tribunal, and must be so adjudged.

The President admits, unreservedly, that every item of the demand presented at Geneva must, within the meaning of the Treaty, be a “claim;” that it must be one of the claims “generically known as the Alabama claims,” and that it must “grow out of” the acts committed by the vessels which have given rise to the claims thus generically known.

Which of the claims presented by the United States at Geneva answers these requirements, and is well founded according to the true intent and meaning of the Treaty, is not to be determined by either party litigant, but is a question for the Tribunal to decide.

I have already referred to the comprehensiveness which the expression “Alabama claims” had acquired when it was used in the correspondence, and was incorporated in the Treaty in 1871.

Lord Granville says: “The word generically naturally signifies that all the claims intended were ejusdem generis.” His argument would require them to be ejusdem speciei.

The word was designedly used to embrace a “genus”—a class of claims divided into several species. “Genus est id, quod, sui similes communione quadam specie autem differentes, duas aut plures complectitur parties.”

The direct losses from destruction of property are of one species; they differ in dates, localities, and amounts; they do not differ in character or in “species.”

Referring to my remark in the note to you of 27th February, that the indirect injuries are covered by one of the alternatives of the Treaty, Earl Granville does not perceive what “alternative” in the Treaty covers these claims.

This Government is of the opinion that they are covered by the alternative power given to the Tribunal of Arbitration, of awarding a sum in gross, in case it finds that Great Britain has failed to fulfill any duty, or of remitting to a Board of Assessors the determination of the validity of claims presented to them, and the amounts to be paid.

By the Article VII, “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.”

If Great Britain be found by the Tribunal to have failed of any of its duties, it is clearly within the power of the Tribunal, in its estimate of the sum to be awarded, to consider all the claims referred to it, whether they be for direct or for indirect injuries; there is no limitation to their discretion and no restriction to any class or description of claims.

The United States are “prepared to accept the award, whether favorable or unfavorable to their views.” They are confident “that it shall be just.”

[Page 471]

Earl Granville refers to the allusion made in my instruction to you -of 27th February, to the presentation by Her Majesty’s Agent to the Claims Commission now sitting in this city of a claim for a part of the Confederate cotton loan, the express exclusion of which from the consideration of the Commission his Lordship admits had been mutually agreed upon in the negotiations which preceded the appointment of the High Commissioners, and was provided for by the wording of the Treaty.

He thinks, however, that there is no analogy between the proceedings before the Washington Commission and those before the Geneva Tribunal; such, at least, appears to be the inference to which his argument is intended to lead.

He cites from Article XIV the power given to the Claims Commissioners “to decide in each case whether any claim has or has not been duly made, preferred, and laid before them, either wholly or to any extent, according to the true intent and meaning of the Treaty,” and he adds that “no similar words” are used as to the powers of the Geneva Tribunal.

It is true that “no similar words” are used, but his Lordship has overlooked the much broader and more comprehensive powers given to the Geneva Arbitrators by the words in Article II authorizing them “to examine and decide all questions that shall be laid before them on the part of the Governments of the United States and of Her Britannic Majesty, respectively.”

These grants of power are to be taken in connection with the subject-matter referred.

The subject-matter of the reference to the Washington Commission is the claims for alleged wrongful acts by either Government upon the persons or property of individuals or of corporations, citizens or subjects of the other Government.

Articles XII and XIV prescribe certain requirements as to the manner, the channel, and the time of presentation of the claims to be examined.

The words “made, prepared, and laid before” have no possible reference to the nature, the character, or the ground-work of the claim, and can be construed only as applying to each claim, which is a proper subject of reference, the test of the requirements of the Treaty, with respect to the manner, the channel, and the time of its being brought before the Commission.

The subject-matter referred to the Arbitrators at Geneva is “all the claims growing out of acts committed by the vessels which have given rise to the claims generically known as ‘the Alabama claims,’ 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.”

In connection with such claims, and with the purpose expressed in the Treaty, the Arbitrators have the broad grant of power to “examine and decide all questions that shall be laid before them on the part of” either Government.

If Lord Granville can find in the words he has quoted power in the Washington Commission to determine whether or not a claim presented is within its jurisdiction, it will be difficult to deny the same power to a Tribunal to which the more comprehensive grant is made in the words of the Article II.

The allusion in my instruction of 27th February to the Confederate cotton loan was to the fact that a claim, one of a class for whose exclusion [Page 472] his Lordship admits that expressions had been used in the negotiations which preceded the appointment of the High Commission, and were also used in the Treaty, was presented by Her Majesty’s Government, (for by the Treaty a claim can only be laid before the Commission on the part of the Government,) and that, when the United States-remonstrated and requested the British Government to withdraw the claim, their remonstrance was unheeded, and the claim was pressed to argument; that the United States demurred before the Commission to-its jurisdiction, and the decision of the Commission disposed of what might have been a question of embarrassment.

The claim was put forward as a test case, and was one of a class involving upwards of fifty millions of dollars.

My allusion to it was not in the nature of a complaint of its presentation. Earl Granville has kindly furnished certain dates. From his note we find that it was on the 21st November that he learned that the United States remonstrated against the presentation of this class of claims; that prior to the 6th December he had ascertained from Sir Edward Thornton (who it is known had left England on his return to the United States as early as the 28th day of November) that claims of this class were intended to be excluded, and that the Treaty contained words inserted for that object; that the remonstrance and request of the United States were not considered by Her Majesty’s Government until the 11th of December; that a decision thereon was not made until the 14th, (on which day, 1 may add, the Agent and Counsel of the British Government brought the case to trial in Washington,) and that the announcement of the decision of Her Majesty’s Government was not made to you until the 16th December, two days after the case had been adjudged.

These dates illustrate my allusion to this case. The United States calmly submitted to the Commission the decision of its jurisdiction over a claim involving in its principle the question of liability for many millions of dollars, which, it is admitted, had been expressly agreed to be withheld from the province of the Commission, and thereby avoided jeoparding the Treaty, and the serious embarrassment which might have resulted from their undertaking to become the judges in their own behalf.

I cannot pass over without notice the allusion made by Earl Granville to your presence in the House of Lords on the occasion of the-debate of the 12th of June last, and the fact that you did not at any time challenge either of the conflicting interpretations of the Treaty expressed on that occasion. I may add that similar reflections upon the conduct of this Government in that relation, uttered by prominent statesmen and newspapers in Great Britain, have been made public,, and thus brought to my notice.

To all of these it is sufficient to say that the President does not hold it as any part of his duty to interfere with the differences in the Parliament, or the public press of Great Britain, respecting the true construction of the Treaty. The utterances in Parliament are privileged; the discussion in that high body is looked upon by us as a domestic one, of which this Government has no proper cognizance. If it is bound to take notice, it has the right to remonstrate.

To concede either to a foreign State would be, on the part of a Parliamentary Government, the abandonment of the independence which is its foundation and its great security and pride.

Had you interfered, therefore, either to remonstrate or to demand explanation, you would have exposed yourself and your Government to the very just rebuke which the United States have had occasion to [Page 473] administer to diplomatic agents of foreign Governments, who, in ignorance or in disregard of the fundamental principles of a Constitutional Government with an independent legislature, have asked explanations from this Government concerning the debates and proceedings of Congress, or of the communications by the President to that body.

You had a right to assume that if Her Majesty’s Government desired any official information from you or your Government respecting the Treaty, or desired to convey any information to you or to your Government, they would signify as much in the usual forms of diplomatic intercourse, as was done by Lord Granville in his note to you of February 3. Certain it is that it would have been in violation of recognized diplomatic proprieties had you, on the occasion referred to, taken sides with either of the opposing views of the Treaty uttered on that occasion in Parliament.

Further than this, it appears to me that the principles of English and American law (and they are substantially the same) regarding the construction of statutes and of treaties and of written instruments generally would preclude the seeking of evidence of intent outside the instrument itself. It might be a painful trial on which to enter, in seeking the opinions and recollections of parties, to bring into conflict the differing expectations of those who were engaged in the negotiation of an instrument.

While the United States have nothing to fear from departing from the eminently just rule of law to which allusion has been made, it abstains from such departure.

Very much of the matter so elaborately and ingeniously presented in the memoranda attached to the note of Earl Granville could be fitly and appropriately addressed by the British Government to the Tribunal which is to pass upon the points presented therein. It would require amplification, if not correction of statement, to make it present all the facts essential to a correct judgment, and might require a reply before that Tribunal. It would certainly require explanation as to many of its presentations, and its logic would be denied; but it does not seem to require a reply from me in the form of diplomatic correspondence.

As to what is contained in Part III of that Memorandum, I repeat in substance what I mentioned in my note to you on this subject, of 27th February, that the indirect losses of this Government by reason of the inculpated cruisers are set forth in the American “Case” as they were submitted to the Joint High Commission in the first discussion of the claims on March 8, and stand in the Protocol approved May 4. They were presented at Geneva, not as claims for which a specific demand was made, but as losses and injuries consequent upon the acts complained of, and necessarily to be taken into equitable consideration in a final settlement and adjudication of all the differences submitted to the Tribunal. The decision of what is equitable in the premises, the United States, sincerely and without reservation, surrender to the arbitrament designated by the Treaty.

What the rights, duties, and true interests of both the contending nations, and of all nations, demand shall be the extent and the measure of liability and damages under the Treaty, is a matter for the supreme determination of the Tribunal established thereby.

Should that august Tribunal decide that a State is not liable for the indirect or consequential results of an accidental or unintentional violation of its neutral obligations, the United States will unhesitatingly accept the decision.

Should it, on the other hand, decide that Great Britain is liable to this [Page 474] Government for such consequential results, they have that full faith in British observance of its engagements to expect a compliance with the judgment of the Tribunal which a solemn Treaty between the two Powders has created in order to remove and adjust all complaints and claims on the part of the United States.

To the judgment of the Tribunal when pronounced the United States will, as they have pledged their faith, implicitly bow. They confidently expect the same submission on the part of the great nation with which they entered into such solemn obligations.

I am, &c.,