No. 47.
Earl Granville to Sir E.
Thornton.1
The following dispatch was published in the supplement to the London Gazette, May 17, and communicated, in accordance with instructions from his Government, by Sir Edward Thornton, in a note dated May 31, 1872. (Received June 1.)
[Page 505]Sir: Her Majesty’s Government have refrained from continuing an argumentative discussion with the Government of the United States upon the scope and intention of the Articles in the Treaty of Washington relating to the Arbitration on the “Alabama claims.”
There are, however, some passages in Mr. Fish’s dispatch on this subject of the 16th ultimo, upon which it seems desirable that, for your own information, and for use in any future communications with the Government of the United States, you should be put in possession of the views of Her Majesty’s Government.
In the first place, Mr. Fish takes exception to the assertion in my letter of the 20th of March, that although it is true that, in some of the earlier letters of Mr. Adams, , vague suggestions were made as to possible liabilities of this country, extending beyond the direct claims of American citizens for specific losses arising from the capture of their vessels by the “Alabama,” “Florida,” “Shenandoah,” and “Georgia,” no claims were ever defined or formulated, and certainly none were ever described by the phrase “Alabama claims,” except these direct claims of American citizens.
Mr. Fish states that I cannot be disposed to intend more than to say that the claims for indirect or national losses and injuries were not “formulated “by the United States Government, and the amount thereof set forth in detail and as a specific demand.
I did not, however, confine myself to saying that no claims of this nature were ever defined or formulated, but added that no such claims have ever been “described “as “Alabama claims.”
Mr. Fish admits that the claims for indirect or national losses were not formulated or defined, but proceeds to cite various passages in the correspondence in which he considers that they were brought forward. He does not mention one instance in which they were described as “Alabama claims.”
The fact is that, throughout the correspondence, the representations made by the United States Government respecting the actual claims for injuries sustained by American citizens from the depredations of the “Alabama” and other cruisers were interspersed with complaints of the supposed premature recognition of the belligerent rights of the Confederate States by the issue of Her Majesty’s Proclamation of Neutrality, and of the proceedings of blockade-runners.
Nearly all the passages cited by Mr. Fish will be found, when read with their context, to have reference to these complaints, and to the indefinite suggestions of liability founded on them. On the other hand, on turning to the Memorandum, inclosed in my letter of the 20th of March, it is apparent that the phrase “Alabama claims “has uniformly been used to distinguish the actual claims on account of the acts committed by the “Alabama “and the other cruisers from these complaints of the “attitude “assumed by Great Britain.
Mr. Fish lays great stress on the statement in Mr. Adams’s letter of the 20th November, 1862, that he was instructed to “solicit redress for the national and private injuries already thus sustained.” The injuries thus sustained were, as appears by the inclosures in Mr. Adams’s letter, the destruction of the “Ocmulgee,” and other vessels by the “Alabama.” As already pointed out in the Memorandum, Mr. Adams spoke merely of the “depredations committed on the high seas upon merchant-vessels “by the “Alabama,” and of “the right of reclamatiom of the Government of the United States for the grievous damage done to the property of their citizens,” and referred to the Claims Commission under the Treaty of 1794 as a precedent for awarding compensation. There is not a word in the letter to suggest any indirect or constructive claims.
In the dispatch of the 19th of February, 1863, Mr. Seward, in a similar manner, uses the term “its claims “with obvious reference to the claims put forward by the United States on behalf of American citizens; those, indeed, being the only claims that had been indicated in the correspondence between Mr. Adams and Lord Russell to which he was alluding.
I must remark that this dispatch of the 19th of February, 1869, was not communicated to the British Government.
Mr. Fish has omitted some important words in the next passage which he adduces from Lord Russell’s dispatch to Lord Lyons on the 27th of March, 1863.
The dispatch gives an account of a conversation with Mr. Adams, at the close of which Lord Russell said that it was his belief “that if all the assistance given to the Federals by British subjects and British munitions of war were weighed against similar aid given to the Confederates, the balance would be greatly in favor of the Federals.”
Mr. Adams totally denied this proposition. “But above all,” he said, “there is a manifest conspiracy in this country, of which the Confederate Loan is an additional proof, to produce a state of exasperation in America, and thus bring on a war with Great [Page 506] Britain, with a view to aid the Confederate cause, and secure a monopoly of the trade of the Southern States, whose independence these conspirators hope to establish by these illegal and unjust measures.”
Mr. Fish omits the words “of which the Confederate Loan is an additional proof,” which, taken with the context, show that Mr. Adams was then speaking, not of the case of the “Alabama,” but of the assistance in money and materials which he considered was improperly rendered to the Confederate States by blockade-ruuning and the Cotton Loan.
Mr. Adams’s letters of the 7th of April and 20th of May, and Lord Russell’s letter of the 4th of May, 1865, are commented on in the Memorandum, Part II, and it is unnecessary for me to make any further observations on them, as Mr. Fish does not reply to those which I have already offered. Whatever may have been the purpose to require indemnification, no claim was presented or notified, and the grievances of which complaint was made were in no way identified with the “Alabama claims.”
The dispatch of the 14th of February, 1866, was not communicated to Her Majesty’s Government; but, on referring to the 3d volume of the Appendix to the American Case, p. 628, in which it is given, it appears to refer to the possibility of fresh negotiations in regard to a revision of the Neutrality Laws and to Lord Russell’s refusal of arbitration. Both these subjects are referred to at page 625, and the dispatch accordingly concludes, after the paragraph quoted by Mr. Fish, by saying, “I think that the country would be unanimous in declining every form of negotiation that should have in view merely prospective regulations of national intercourse, so long as the justice of our existing claims for indemnity is denied by Her Majesty’s Government, and those claims are refused to be made subject of friendly but impartial examination.”
There can be no pretense that the claims which Lord Russell refused to submit to arbitration extended to indirect claims. The proposal arose in connection with “a claim for the destruction of the ship ‘Nora’ and other claims of the same kind,” (see Mr. Adams’s letter of the 23d of October, 1863,) and Lord Russell, in reply to it, stated that Her Majesty’s Government must decline “either to make reparation and compensation for the captures made by the ‘Alabama,’ or to refer the question to any foreign State.”
I have already pointed out that no importance can be attached to the claims of private citizens being spoken of by Mr. Seward as “our claims.” The “claims of citizens of the United States against Great Britain for damages, &c, by means of deprecations upon our commercial marine committed on the high seas by the ‘Sumter,’ the ‘Alabama,’ the ‘Florida,’ the ‘Shenandoah,’” &c., of which a summary was annexed to the dispatch from Mr. Seward to Mr. Adams, of the 27th of August, 1866, communicated to Lord Stanley, and which are undeniably private claims, are mentioned in that dispatch as “the claims upon which we insist,” and “our claims.”
The next dispatch referred to, that from Mr. Seward to Mr. Adams, of the 2d of May, was likewise not communicated to Her Majesty’s Government. The context clearly shows that the “injuries” from “the first unfriendly or wrongful proceeding” referred to the “concession of belligerency.” Mr. Seward, in a preceding paragraph, says, “I feel quite certain that the balance of faults has been on the side of Great Britain. First, the concession of belligerency ought not to have been made; second, upon our earnest appeals it ought to have been earlier rescinded.” The dispatch goes on to state the conviction of the American people that the “proceedings of the British Government in recognizing the Confederacy were not merely unfriendly and ungenerous, but entirely unjust.”
In another part of Mr. Fish’s dispatch complaints (not claims) are noticed as having been made by Mr. Adams on the 30th of December, 1862, 14th and 27th of March, 1863, and 28th of April.
The “acts” complained of in the first extract will be seen, on reading the entire passage, to have been that “vessels owned by British subjects have been and are yet in the constant practice of departing from British ports laden with contraband of war and many other commodities, with the intent to break the blockade and to procrastinate the war.”
The dispatch of the 14th of March, 1863, refers to certain intercepted correspondence relating to the proceedings and supposed intentions of Confederate agents, blockade-runners, and to the Cotton Loan.
The complaint on the 27th of March, as I have already explained, also referred to the Cotton Loan and to these proceedings of Confederate agents.
The dispatch of the 28th of April begins, “I am instructed to inform your Lordship that the Government of the United States has heard with surprise and regret of the negotiation of a loau in this city,” and proceeds to state that “this transaction must “bring to an end all concessions, of whatever form, that may have been heretofore made for mitigating or alleviating the rigors of the blockade in regard to the shipment of cotton;” and concludes, “I am sure that it is with the greatest reluctance it” [the United States Government] “finds itself compelled, by the offensive acts of apparently irresponsible parties, bent upon carrying on hostilities under the shelter of neutrality, [Page 507] to restrict rather than to expand the avenues of legitimate trade. ‘The responsibility for this’ [i. e., for this restriction] ‘must rest mainly upon those who, for motives best known to themselves, have labored and continue to labor so strenuously and effectually to furnish the means for the protraction of the struggle.’”
I have reviewed the passages cited by Mr. Fish in support of his argument, that the “Alabama claims” included other claims than those for the actual losses of American citizens, in order to show how little support they afford to it; but this is almost superfluous, as a conclusive answer is afforded by the very volume of dispatches from which Mr. Fish has taken these extracts.
Mr. Reverdy Johnson, in a dispatch to Mr. Seward dated February 17, 1869, (page 767,) containing a report of his negotiations with Her Majesty’s Government, states:
“I hear that in some quarters objections are made to the Claims Convention, for which I was not prepared.
- “1. It is said, I am told, that the claims to be submitted should not be all that have arisen subsequent to July, 1853.
- “2. That no provision is made for the submission of any losses which our Government, as such, may have sustained by the recognition of the insurgents as belligerents, and the depredations upon our commerce by the ‘Alabama’ and other vessels. * * *
“As regards the second objection,” he urges, “I am at a loss to imagine what would be the measure of the damage which it supposes our Government should be indemnified for. How is it to be ascertained? By what rule is it to be measured? A nation’s honor can have no compensation in money, and the depredations of the ‘Alabama’ were of property in which our nation had no direct pecuniary interest. If it be said that those depredations prevented the sending forth of other commercial enterprises, the answer is twofold: first, that if they had been sent forth, the nation would have had no direct interest in them; and, second, that it could not be known that any such would have been undertaken. Upon what ground, therefore, could the nation demand compensation in money on either account? And if it was received, is it to go into the Treasury for the use of the Government, or to be distributed among those who may have engaged in such enterprises, and how many of them are there, and how are they to be ascertained? France recognized the insurgents as belligerents, and this may have tended to prolong the war. This, too, it maybe said, was a violation of her duty, and affected our honor. If we can claim indemnity for our nation for such a recognition by England, we can equally claim it of France. And who has suggested such a claim as that?
“But the final and conclusive answer to these objections is this:
“1. That at no time during the war, whether while the ‘Alabama’ and her sister ships were engaged in giving our marine to the flames, or since, no branch of the Government proposed to hold Her Majesty’s Government responsible, except to the value of the property destroyed, and that which would have resulted from the completion of the voyages in which they were engaged. The Government never exacted anything on its own account. It acted only as the guardian and protector of its own citizens, and therefore only required that this Government should pay their losses, or agree to submit the qnestion of its liability to friendly arbitrament. To demand more now, and particularly to make a demand to which no limit can well be assigned, would be an entire departure from our previous course, and would, I am sure, not be listened to by this Government, or countenanced by other nations. We have obtained by the Convention in question all that we have ever asked; and with perfect opportunity of knowing what the sentiment of this Government and people is, I am satisfied that nothing more can be accomplished. And I am equally satisfied that if the Convention goes into operation, every dollar due on what are known as the ‘Alabama claims’ will be recovered.”
If Mr. Johnson was mistaken in the view thus decidedly expressed, it might be expected that some notice would have been taken of so important an errors But Mr. Seward’s reply of March 3, 1869, gives no intimation of any dissent whatever. He writes, “Your dispatch No. 112 of the 17th ultimo, relative to the Protocol and Convention recently signed by you on behalf of this Government, has this day been received and submitted to the President. He directs me to to say, in reply, that it is regarded as an able and elaborate paper, arid would have been communicated to the Senate had it not reached here at the close of the present session, and that of his Administration.”
Thus, according to an uncontradicted statement in an official dispatch from the United States Minister in London to the Government at Washington, officially published by the United States Government, that Government had never exacted anything on its own account,” and the claims, “known, as the ‘Alabama claims’” had been limited during the whole war, and in the subsequent negotiations up to February, 1869, to the claims for the value of the property destroyed, and that which would have resulted from the completion of the voyages in which the captured vessels were engaged.
Mr. Johnson confirmed the statement in his dispatch, in a letter to Mr. J. A. Parker, published in the “New York Journal of Commerce,” 30th November, 1870: “My instructions, [Page 508] as did those of Mr. Adams, looked exclusively to the adjustment of individual claims, and no alleged commission or omission of the British Government of her duty to the United States pending the war was given in any part of the correspondence between the two Governments as having any influence upon other than individual claims.”
It is not easy to understand how a class of claims which had been known under one appellation for seven years could have suddenly acquired a far wider and more onerous significance.
Mr. Fish relies on Mr. Reverdy Johnson’s proposed amendment of the Clarendon-Johnson Convention, on these public or national claims having been prominently before the Senate when that Convention was under advisement, (by which it is to be presumed he refers to Mr. Sumner’s speech, the only part of the proceedings which was published,) on the President’s Message of December, 1869, and on his dispatch to Mr. Motley of the 25th of September, 1869.
Mr. Johnson’s proposal, however, was not to include national claims under the head of “Alabama claims,” but to superadd them by inserting certain words after the words “agree that,” in the first Article of the Convention.
Had his proposal been adopted, the Article would have stood thus: “The High Contracting Parties agree that”—here comes the insertion—“[all claims on the part of Her Majesty’s Government upon the Government of the United States, and all claims of the Government of the United States upon Her Majesty’s Government, and] all claims on the part of subjects of Her Britannic Majesty upon the Government of the United States, and all claims on the part of citizens of the United States upon the Government of Her Britannic Majesty, including the so-called ‘Alabama claims,’”&c.
Mr. Johnson avowedly made this proposal, as Lord Clarendon informed you in his dispatch of the 22d of March, 1839, to introduce “claims to compensation on account of the recognition by the British Government of the belligerent rights of the Confederates, “which the British Government might balance by “claims to compensation for damages done to British subjects by American blockades, which, if the Confederates were not belligerents, were illegally enforced against them.”
Mr. Johnson’s belief was that the Convention was unacceptable because it did not include national claims on account of the recognition of belligerent rights, which he purposely distinguished from the “Alabama claims,” and was in no respect therefore inconsistent with his dispatch of the 17th February, limiting the meaning of that expression. The information on which he founded that belief was derived, as he reported to Mr. Fish on the 9th of April, 1869, from a private source; and his suggestion made in the same dispatch, that instructions should be given to him to endeavor to supply the omission, was not favorably entertained by the United States Government, who telegraphed in reply that “as the Treaty was then before the Senate no change was deemed advisable.”
The only intimation, as I have stated, which Her Majesty’s Government possessed of the propriety of making any demands for national losses having been debated or considered by the Senate, was, by the publication of Mr. Sumner’s speech, in which he urged that England was liable for national injuries of the most extensive character but these injuries were rhetorically deduced, chiefly from the Proclamation of Neutrality, and the supplies furnished through the blockade.
The effect of Mr. Sumner’s speech in England was reported by Mr. Johnson to Mr. Fish on the 10th of May: “If an opinion may be formed from the public press, there is not the remotest chance that the demands contained in that speech will ever be recognized by England. The universal sentiment will be found adverse to such a recognition. It would be held, as I hear from very reliable source, to be an abandonment of the rights, and a disregard of the honor of this Government.”
Her Majesty’s Government never learned that Mr. Sumner’s views were indorsed by the Government of the United States.
Mr. Fish next mentions his instructions to Mr. Motley, of the 25th of September. These instructions, however, were not communicated to Her Majesty’s Government,, and when Mr. Motley told Lord Clarendon on the 10th of June, 1869, 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; and, lastly, that it settled no question, and laid down no principle,” he proceeded to speak of the “risk and responsibility” incurred by a Government which conferred belligerent rights, and thus his representations naturally connected themselves with Mr. Johnson’s proposal with regard to the mutual claims of the two Governments.
Mr. Fish admits that, in his dispatch of the 25th of September, he “made no claim or demand for either direct or indirect injuries.”
These indirect injuries could not therefore have received the designation of “Alabama claims” from that dispatch.
Indeed, on examining the extracts which he gives from it with their context, it is apparent that the “vast national injuries” which he states that he presented in it are ascribed to other causes than the acts committed by the Confederate cruisers.
[Page 509]The first extract, beginning “The number of our ships thus directly destroyed,” &c., follows a paragraph complaining of the Proclamation of Neutrality: “In virtue of the Proclamation, maritime enterprises in the ports of Great Britain, which would otherwise have been piratical, were rendered lawful, and thus Great Britain became, and to the end continued to be, the arsenal, the navy-yard, and the treasury of the Confederacy.
“A spectacle was thus presented without precedent or parallel in the history of civilized nations, Great Britain,” &c.
The second extract runs thus:
“We complain that the insurrection in the Southern States, if it did not exist, was continued, and obtained its enduring vitality by means of the resources it drew from Great Britain. We complain that by reason of the imperfect discharge of its neutral duties on the part of the Queen’s Government, Great Britain became the military, naval, and financial basis of insurgent warfare against the United States. We complain of the destruction of our merchant marine by British ships, manned by British seamen, armed with British guns, dispatched from British dock-yards, sheltered and harbored in British ports. We complain that, by reason of the policy and acts of the Queen’s Ministers, injury incalculable was inflicted on the United States.”
The third extract, respecting the vast national injuries, is followed in the dispatch by a passage explaining the various causes of injury, which Mr. Fish has omitted to notice: “Nor does he attempt now to measure the relative effect of the various causes of injury, as whether by untimely recognition of belligerency, by suffering the fitting out of rebel cruisers, or by the supply of ships, arms, and munitions of war to the Confederates, or otherwise, in whatsoever manner.”
Lord Clarendon’s memorandum of observations on Mr. Fish’s dispatch, like the dispatch itself, touched on various topics beside that of the Confederate cruisers, and Her Majesty’s Government cannot admit that, because Mr. Motley read a dispatch to Lord Clarendon on the 12th of January, 1870, stating that Mr. Fish had not included it “among the papers respecting the ‘Alabama claims,’” therefore all the subjects mentioned in it were “Alabama claims.”
Still less can they admit that because Mr. Bernard, in the 14th chapter of his work, gave certain extracts from Mr. Fish’s dispatch, under the head of “Alabama claims,” that dispatch became the standard by which the claims known as the,” Alabama claims” was to be measured. It happens moreover that, in the extracts given by Mr. Bernard in the chapter to which Mr. Fish refers, the three passages cited by Mr. Fish in his present dispatch as relating to indirect injuries and national losses are omitted.
It only remains to notice the President’s Message of December, 1869. This Message does not mention the “Alabama claims,” but speaks of the “injuries resulting to the United States by reason of the course adopted by Great Britain during our late Civil War.”
I have thus been able to show, upon the testimony of Mr. Reverdy Johnson, the American Minister, corroborated on examination by the extracts cited by Mr. Fish, that for the first seven years of the discussion up to 1869, none but direct claims were “known as ‘Alabama claims;’” and that in the only authoritative document in which national indirect injuries were mentioned, up to the time of the recent negotiation, they were not described as “Alabama claims,” or as claims of any description.
Mr. Fish states that “continental jurists and publicists discussed the national claims on account of the prolongation of the war under the head of ‘réclamations,’ having ‘qu’un rapport indirect, et nullement un rapport direct avec les déprédations réellement commises par les croiseurs.’”
The quotation appears to be taken from a pamphlet by Dr. Blüntschli, entitled “Opinion impartiale sur la question de ‘l’Alabama’ et sur la maniére de la résoudre.” In this pamphlet Dr. Blüntschli reviews the various points mentioned by Mr. Sumner in his speech in the Senate on the 13th of February, 1869, including the recognition of belligerency. In the sixth section he discusses the effects attributed by Mr. Sumner to the acts of the “Alabama” and other vessels, and states that all the effects are attributable, in the first place, to the cruisers themselves, and not to the British Government. “Sa faute ne consiste pas à avoir équipé et appareillé les corsaires, mais à n’avoir pas empêché leur armement et leur sortie de son territoire neutre. Mais cette faute1 n’a qu’un rapport indirect et nullement un rapport direct avec les déprédations réellement commises par les croiseurs.”2 Dr. Blüntschli’s remark did not, therefore, relate to claims for indirect losses, nor does the word “réclamations” occur in the sentence, in the paragraph, or in the whole section from which the quotation is taken. All that he says is that the default on the part of Great Britain, by which the cruisers escaped, has but an indirect, and in no way a direct, connection with the depredations actually committed by them.
Mr. Fish gives as a reason for no claims for national losses having been “defined” or [Page 510] formulated, that Lord Russell objected, in July, 1863, to any claims being put forward. As Mr. Adams continued to present claims for the destruction of property by the “Alabama” in August, September, and October of that year, and numbers of similar direct claims have since been presented, Her Majesty’s Government are unable to see the force of this argument.
Whatever may have been the reason, the fact remains, that up to the time of the arrival of the British High Commissioners at Washington, the term “Alabama claims” had a recognized and well-known meaning as direct claims, and that no other claims had been presented to the British Government. Nor, indeed, were these other claims even then presented.
The American High Commissioners, as appears by the 36th Protocol, stated that the history of the “Alabama,” and other cruisers, showed extensive direct losses, and indirect injury, and that Great Britain had become justly liable for the acts of those cruisers and their tenders; that the claims for the loss and destruction of private property, which had thus far been presented, amounted to about 14,000,000 dollars, and “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 “indirect losses” were thus mentioned, not as claims, but as grievances, and were mentioned only to be withdrawn from discussion.
Mr. Fish says that it is unfortunate that the British High Commissioners did not remonstrate against the presentation of these claims, and “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 on 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 answer to this is, that no mention is made in the Protocol of “claims generic-ally known as the ‘Alabama claims,’” or of any specific enumeration of them, or of any such presentation at all. All that occurred was the above-mentioned statement that the history of the “Alabama” and other cruisers showed indirect injuries, followed by the waiver of the indemnification on their account, in the hope of an amicable settlement.
The British High Commissioners thereupon took the natural course of not “entering upon a lengthened controversy” upon the barren question of injuries for which they believed no claim was presented, and these indirect losses and injuries were never, as you are aware, again brought forward by the American High Commissioners, nor did they re-appear until they were revived in the case presented by the United States Agent at Geneva, on the 15th of December.
Mr. Fish could not have been ignorant, from the report to which I have already referred, which he had received from Mr. Johnson, and from the discussions in the public press, of the feeling in England with regard to the exaggerated pretensions in Mr. Sumner’s speech; and when he intended to introduce as “Alabama claims” similar claims of equally onerous character, it is much to be regretted that he and his colleagues did not explain more clearly that by “an amicable settlement” they meant one particular form of settlement, and that if the British High Commissioners did not acquiesce in it, they would bring forward the constructive claims, for which an enormous indemnity might be held due.
Instead of this, the American High Commissioners made a statement which was accepted by the British High Commissioners and read by Her Majesty’s Government, and, as far as they are aware, by the press and public of both countries, in a sense which, it is now stated, the American High Commissioners never intended it to bear, but which, until the interpretation appeared in the American Case, seemed the only sense in which it could be read.
Her Majesty’s Government cannot accept the view which Mr. Fish appears to entertain that a negotiation must necessarily be a matter of bargain, in which a concession on one side is to be set off in each instance against a concession on the other. The waiver of the constructive claims was, as I stated to General Schenck, a requisite preliminary to the negotiation, because Her Majesty’s Government could not (as the Government of the United States must have been aware then, and must have since become convinced) have assented to any mode of settlement which comprised these constructive claims, upon which the opinion of this country had already been pronounced so strongly when they were raised by Mr. Sumner.
Mr. Fish asks, “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 Commissioners or the Government of the United States until after the treaty was signed?
“The amplitude and the comprehensive force of the 1st 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?”
[Page 511]The answer to this is that, in the first place, the British High Commissioners believed that after the waiver they were agreed with the United States High Commissioners upon the basis of the terms of the submission; and, in the second place, that they did limit the scope of the submission.
The British High Commissioners, in the information which they have furnished to Her Majesty’s Government, both during the negotiation and since the presentation of the American Case, have uniformly maintained that the claims for indirect losses were not included, nor intended by them to be included, in the terms of the submission to arbitration, and you are aware that the British High Commissioners objected to the adoption of a form of reference to the Arbitrators, which might from its vagueness be taken to permit the introduction of such claims, and that it was not until after lengthened discussion in the Commission that the terms of reference as they now stand in the Treaty were settled.
Her Majesty’s Government cannot acknowledge that the nature of the claims submitted was left to inference. On the contrary, the precise claims referred to arbitration were closely defined and limited.
Mr. Fish writes as though the reference to arbitration comprised “differences” and “complaints,” and “all claims;” but the British High Commissioners especially guarded against this. The claims submitted must be both “claims growing out of the acts committed by the aforesaid vessels,” i. e., “Alabama” and other cruisers, and claims “generically known as the ‘Alabama claims.’”
The use of the words “acts committed” admittedly excludes the questions of blockade-running and concession of belligerent rights from the arbitration, and the specification of the claims as “claims generically known as the ‘Alabama claims’” limits them to the class of direct claims; which it has, I trust, been abundantly shown were alone known at the time as “Alabama claims.”
Mr. Fish attaches some importance in support of his views to the words “growing out of” and “generically,” but the first phrase is taken from Mr. Adams’s letter of the 31st of October, 1863, when, in forwarding “a number of memorials and other papers connected with the depredations of the vessel formerly called the “Oreto,” and now the “Florida,” he observed that “the conclusion to which it would seem that both Governments arrive in regard to the disposition to be made of the claims growing out of the depredations of the ‘Alabama’ and other vessels issuing from British ports appears to render further discussion of the merits of the question unnecessary No mention whatever of indirect or constructive claims had been made at this time, and the claims to which Mr. Adams referred are manifestly the claims for actual damages.
When the same expression is used again it must be taken to have the same meaning.
I will not follow Mr. Fish into the etymology of the word “generically.” “Generically known as the ‘Alabama claims’” seems to be the same as the “class of claims known as the ‘Alabama claims,’” the phrase used in the Stanley-Johnson Convention, and serves to distinguish this class of claims from every other class of claims which the United States Government might have to prefer. The “Alabama claims” have been designated as a “class of claims” to avoid the misapprehension, which at one time, seemed to have occurred to Mr. Seward, that the words “Alabama claims” might be construed as meaning only claims on account of injuries sustained from the one vessel “Alabama.” The phrase itself goes very far to define its own limited meaning; for, while it is quite intelligible that, for brevity’s sake, the name of one vessel should stand for others of a particular class, of which it is the principal example, it appears to be contrary to all reason that the name of such a particular ship should be used to> describe claims for general national losses, such as those for the decline of the commercial marine of the United States and the prolongation of the war.
Mr. Fish, with reference to the remark in his dispatch of the 27th of February, that the indirect claims are covered by one of the alternatives of the Treaty, states that the Government of the United States are “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.”
The VIth Article of the Treaty, after stating the three Rules, proceeds: “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 . . . . agrees that in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume,” &c.
Article VII provides that “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 three foregoing Rules, or recognized by the principles of international law not inconsistent with such Rules, and shall certify such fact as to each of the [Page 512] 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 for all the claims referred to it.”
All the claims must mean all the “claims mentioned in Article I.”
Mr. Fish admits that the indirect losses are not covered by what he terms the other “alternative” of the Treaty, viz, the provision in Article X, that “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.”
Mr. W. Beach Lawrence, the distinguished American publicist, in a letter dated the 20th ultimo, and published in the Springfield Independent, observes: “As in each case determined against Great Britain, the Board of Assessors are, by Article X, to ascertain and determine the amount which 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, there would seem to be no room for indirect damages. Besides the difficulty of deciding on a claim indeterminable in its nature, there would be the further embarrassment of apportioning the amount of injury growing out of the acts of each vessel in the general account. Is it possible that the Assessors are to decide what part of the prolongation of the war is to be assigned to each vessel? I am aware that there is a provision that the Arbitrators may, after they have decided as to each vessel separately, award a sum in gross for all the claims referred to them. I cannot, however, perceive how that provision in any wise extends the scope of the power of the Tribunal.” Her Majesty’s Government cannot perceive it either.
By both Articles VII and X, the Arbitrators are to determine the extent of the liability of Great Britain as to each vessel, i.e., as to each cruiser separately. Throughout, the claims are strictly connected with the acts of the cruisers. Mr. Fish acknowledges that, if the claims are considered in detail, the indirect losses cannot be taken into account; and yet, as he states, they have been “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 on a final settlement and adjudication of all the differences submitted to the Tribunal.”
I have already pointed out that “claims” and not “differences” have been submitted; and Mr. Fish’s contention would amount to this, that, in awarding damages for a specific want of due diligence in regard to a particular vessel, the Arbitrators should take into consideration a variety of grievances not necessarily connected with that vessel, and which could not be made matters for a claim if examined in detail, and award a gross sum not proportioned to the want of diligence or to the injury -thereby occasioned, but swelled by the amount of all the injuries and losses of which the United States may have complained in all the correspondence of which the history of the cruisers forms part.
That is to say, that the Arbitrators should give judgment in one matter and inflict a penalty for another matter. A principle so contrary to the ordinary practice of jurisprudence could not have been presumed by the British High Commissioners, or by Her Majesty’s Government, to have been intended to be introduced, unless the intention was explained to them; but, from first to last, no mention of indirect losses was made in connection with the payment of a gross sum.
If the American High Commissioners desired that the alternative of the award of a gross sum should cover the claims for indirect losses, why were they not more explicit? and why did they not require some provision to be made in the Treaty to explain this for the guidance of the Arbitrators?
Mr. Fish says that “the claims for indirect losses were presented to the British Commissioners as solemnly 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.”
But the indirect losses were never “presented” as “claims,” and are even now said not to be “presented as claims” for which a specific demand is made; while the Fenian raid “claims” were proposed for consideration on the 4th of March; again “brought before” the High Commission on the 26th of April, when the British negotiators said that “they were instructed to present these claims,” and it was not until the 3d of May that they said that “they would not urge further that the settlement of these claims should be included in the present Treaty. And that they had the less difficulty in doing so, as a portion of the claims were of a constructive and inferential character.”
Thas while the American indirect losses were only mentioned once, and then as it were incidentally, the Fenian raid claims were repeatedly and formally presented, and when their withdrawal from the negotiation was agreed to at its close, it was with a remark which could have had no just bearing, had not it been believed that all constructive [Page 513] and consequential claims had been withdrawn and excluded on the American si de also.
Mr. Fish expresses doubts as to the points raised in my letter of the 20th of March, that the Washington Claims Commissioners have, and the Arbitrators have not, power to decide upon the extent of their own jurisdiction, and that no words similar to those conferring that power are to be found in the articles relating to the Geneva Arbitration.
It will be seen, on comparing the Treaty of Washington with the Claims Convention between Great Britain and the United States of the 8th of February, 1853, that the words which I had quoted from the XIVth Article of the former are identical with the words used in the IIId Article of the latter, under which the Claims Commissioners were empowered to give, and did undoubtedly give, decisions as to the extent of their jurisdiction; as for instance, in the claims for Texas bonds of James Holford’s executors, and Philip Dawson, and for Florida bonds of Heneage W. Dering, and in other eases. (See Senate Executive Documents, No. 103, 34th Congress, 1st session, pp. 63, 64.)
The Articles engaging to consider the results of the proceedings of the Tribunal, and of the Claims Commission, respectively, as final settlements, Articles XI and XVII, are also adopted from the Convention of 1853, Article V; and had it been desired to give the same powers of jurisdiction to the Arbitrators as to the Commissioners, a clause similar to that in the XIVth Article would have been inserted to express it.
In the absence of such a clause the jurisdiction of the Arbitrators remains restricted to the particular claims “known as Alabama claims,” submitted to them in Article I.
Her Majesty’s Government cannot admit that a power which, when it is designed to be given to the Claims Commissioners in one part of the Treaty is given in express words, can be inferentially assumed to be given in another part of the Treaty to the Arbitrators, by assigning a broad signification to the term “question” in the lid Article.
The questions which the Arbitrators are to examine and decide are obviously all questions that may be laid before them by the respective Governments, in preferring and refuting the particular claims on which their judgment is requested, and the Article must be read in connection with the succeeding Articles III, IV, and V, providing how the Cases, Counter Cases, evidence, and arguments are to he brought before them.
Mr. Fish cannot mean that the Arbitrators may decide “any questions “not coming within the terms of the reference to the Tribunal. If that were to be the case, Her Majesty’s Government might bring forward as a set-off against the “Alabama claims” the questions of the injury done to British trade by the blockade, or the Fenian raids, or possibly other questions. In short, a scope would be given to the Arbitration which the United States Government could not have contemplated, and would probably be unwilling to admit.
Mr. Fish states that “the United States calmly submitted to the Commission the decision of its jurisdiction “over the Cotton Loan Claims; but this statement does not appear to be at all borne out by the “Argument for the United States on motion to dismiss” these claims.
The United States Agent moved for the dismissal of the claim, as not being included under the Treaty, and plainly notified that the United States refused to permit it to be considered as included; his argument being that there was a constitutional provision which prevented the payment of such claims, that this was known to the American Commissioners when negotiating the treaty, to the American Government when accepting it, and to the Senate when ratifying it, and that it was impossible for the United States to pay or to consider the question of paying the claims.
“It must be borne in mind,” he said, “that at the time of this correspondence, as well as at the time of the conclusion and ratification of the Treaty, the Constitution of the United States contained an express prohibition of the assumption or payment of these debts by the United States, or by any State. That every officer of the United States, executive, legislative, and judicial, was thus bound by the supreme law of the land and by his oath of office to treat as utterly null any provision of any Treaty or statute in contravention of that constitutional prohibition, under penalty of impeachment or its equivalent.”
The Agent concluded by asking “the dismission of the claim on the ground specified in his motion.”
In short, he positively declared that no award unfavorable to the United States would, or could, have been accepted and paid.
There are several other statements made by Mr. Fish which are open to reply, but I have considered it sufficient, for the purposes of this dispatch, to confine my comments to those which bear more immediately on the negotiation and interpretation of the Treaty.
I am, &c.,