XIII.—Nature and amount of damages claimed by the United States.

I.—Prefatory considerations.

1. The Counsel of the United States assume that, in the foregoing observations, and the proofs which they have adduced and expounded, they have established the responsibility of the British Government in the premises.

General conclusions.

The legal character of this responsibility is defined by the Treaty of Washington. It is matter of express contract between the two Governments.

The contracting parties, in the first place, agree to certain “Rules,” by which the conduct of the British Government in the premises is to be judged. These “Rules” constitute the principles, upon which it is to be conventionally assumed that the British Government acts, as to the questions here at issue. These “Rules” profess to define the general obligations of a neutral Government. They expressly set forth to what such a government is bound. They are understood by the tenor of the treaty to define expressly what the British Government was bound, in the occurrences debated, to do or not to do with respect to the United States.

2. The Counsel of the United States have applied these Rules to the acts of commission or omission of the British Government, with conclusion as follows:

(a) The British Government did not use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of certain vessels, which it had reasonable grounds to believe were intended to cruise or carry on war against the United States.

(b) The British Government did not use like diligence to prevent the departure from its jurisdiction of certain vessels to carry on war against the United States, such vessels having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

(c) The British Government did permit or suffer the belligerent Rebels of the United States to make use of the ports or waters of Great Bitain as the base of military operations against the United States, or for the purpose of renewal or augmentation of military supplies or arms, or the recruitment of men for naval warfare.

(d) The British Government did not use due diligence in its own ports and waters, and as to all persons within its jurisdiction, to prevent any violation of the stipulated rules, (Article VI.)

(e) Finally, the British Government has failed to fulfill certain duties, recognized by the principles of international law, not inconsistent with the foregoing “Rules.”

3. We think we have shown that the British Government is responsible under these Rules for all, or at any rate for certain, of the cruisers in question. If the Arbitrators come to the same conclusion, then they are to award a sum in gross for the claims referred to them, to be paid by Great Britain to the United States; or, after deciding the failure of the British Government to fulfill its duties as aforesaid, they may remit the question of amount to assessors [Page 187] to determine what claims are valid, and what amount shall be paid 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, (Article X.)Great Britain responsible for the acts of the cruisers.

Thus it appears that the Treaty provides, by various forms of expression, that the liability of Great Britain to pay follows on the conviction of Great Britain of failure to perform her duty in the premises, in conformity with the law of nations and the contract “Rules.”

4. What is the measure of this liability? Such is the question which remains to be discussed.Measure of liability considered.

The Counsel of the United States respond to this question in general terms as follows:

The acts of commission or omission charged to the British Government in the premises constituted due cause of war; in abstaining from war, and consenting to substitute indemnity by arbitration for the wrongs suffered by the United States at the hands of Great Britain, the United States are entitled to redress in damages, general and particular, national and individual, co extensive with the cause of war, that is to say, sufficient to constitute real indemnification for all the injuries suffered by the United States.

The Tribunal, in order to give such complete indemnity to the United States, would have to take up and consider each one of the heads of claim set forth in the American Case.Claims of losses set forth in the American Case.

These are:

(a) The claims for private losses growing out of the destruction of vessels and their cargoes by the insurgent cruisers.

(b) The national expenditures in pursuit of those cruisers.

(c) The loss in the transfer of the American commercial marine to the British flag.

(d) The enhanced payments of insurance by private persons.

(e) The prolongation of the war, and the addition of a large sum to the cost of the war, and of the suppression of the Rebellion.

5. All these claims are, as we conceive, clearly comprehended in the positive terms of the Treaty.

Whether any of such claims, or any part of them, are so remote in their nature in relation to the acts of the Confederate cruisers as to demand rejection by application of the rule of ordinary law, “Causa proxima, non remota spectator,” is a juridical question to be argued as such before the tribunal on the facts, not a question of the tenor of the Treaty.These claims all comprehended in the terms of the Treaty.

6. All the claims enumerated are of losses “growing out of the acts” of the Confederate cruisers; all of them are the actual consequences of those acts; whether to be allowed as proximate consequences, or to be disallowed as remote consequences, it is for the Tribunal to decide.

Such comprehensiveness of the Treaty is, in the opinion of the Counsel of the United States, the apparent meaning of the Treaty; it is the only grammatical meaning, it is the logical meaning, it is the true meaning of the Treaty.

The Treaty, in words of unmistakable universality, submits to the Tribunal all differences, all claims, all questions growing out of the acts of the cruisers under consideration.

The language is unequivocal. There is no exception of any particular class or speciality of “difference,” “of claim,” of question, “growing out of the acts of such cruisers.” Not a word is said of direct claims, or of indirect claims. If any such exception were contemplated or intended by either party, he abstained from inserting it, or any hint of it, in the Treaty itself.

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II.—QUESTION OF JURISDICTION.

The Agent of the British Government, by a letter communicated to the Arbitrators on the 15th of April, informed them that a misunderstanding had arisen between the two Governments as to “the nature and extent of the claims referred to the Tribunal;” and the Agent of the United States in reply reserved to his Government the right to vindicate the disputed jurisdiction of the Tribunal before the Arbitrators. This we shall now proceed to do.

1. The British Government contends that certain so-called “indirect claims” are not included in the Arbitration. We contend that the Treaty itself contains no sentence, expression, or word, to justify this assumption. On that point we appeal to the text, inspection of which is decisive and conclusive of the question.Great Britain contends that the claims styled “indirect” are not within the scope of the Arbitration.

2. The British Government in effect seems to admit that the text of the Treaty is all-comprehensive in description of the nature of the claims, as claims growing out of the acts of certain vessels, and leaving no subject of inquiry, save in the descriptive words “generically known as Alabama claims,” that is, by reference to the principal vessel of the class.The term “indirect” not found in the Treaty.

But this expression, “genetically known as Alabama claims,” does not involve any question of “direct” or “indirect.” No such distinction is implied in the words themselves, or in the context.

3. Accordingly, the British Government insists, not so much on the language of the Treaty, as what they intended when they assented to it.Rejoinder of the United States to the British assumption.

To this assumption it is obvious to reply, first, that no such intention is expressed in the Treaty; that such intention was not the understanding of the United States; that if Great Britain had any such intention she should have insisted on its insertion in the Treaty; that as both parties used the same language, there could be no room for misapprehension in this respect; that the intention of parties to a contract is recorded in the contract; and that if, by reason of equivocal language, any doubt arises, it is not for either of the parties to assume to decide the question, but it is a question for the decision of the Tribunal.

The Counsel of the United States are, however, prepared to show that Great Britain had ample notice of the extent of the submission as it was understood by the United States; that is to say, the claims of the United States, in the whole extent of the American Case, were again and again presented to the consideration of the British Government, both before and during the negotiation of the Treaty, as appears by the documents annexed to the Case. This we shall presently proceed to show.

4. Before doing this, we call more particular attention to the equivocal nature of the expression “indirect damages” or “direct damages,” as employed by the British Government. “Indirect,” as used in this controversy, is equivalent to “national.”

To what injuries or losses do these words refer? Remote consequential injuries or losses? By no means; but chiefly to the immediate national injuries suffered by the United States.

The discussions on the part of the British Government are founded upon the assumption that the injuries which one nation does to another as a nation are indirect injuries. We think that such injuries are, on the contrary, emphatically direct in their very nature.

5. To the specification of such claims, when they come to be considered in detail, objection may be made, that such or such particular loss is remote [Page 189] and not proximate; but that is a question which arises in the consideration of the facts. It in no respect affects the generality or comprehensiveness of the expression “all claims growing out” of certain acts.

6. In order to demonstrate that the British Government ought not to have been ignorant of the precise claims now objected to, under whatever name the subject of negotiation, we now proceed to cite the documentary proofs.

(a) The Joint High Commissioners, in their negotiations which preceded the Treaty of Washington, made use of the terms “indirect losses” and “direct losses,” and these terms were subsequently transferred from the protocols of the conferences of the negotiations to the American Case.The word “indirect” used in the negotiation which resulted in the treaty.

(b) In the public discussions which have since arisen, the terms have apparently been received in a different sense from that in which they were employed by the negotiators, and accepted by the two Governments.Used in the same sense in this discussion.

It has been assumed by many persons, who were but partially acquainted with the history of the negotiations, that the United States are contending before this Tribunal to be indemnified for several independent series of injuries; whereas they do, in fact, ask reparation but for one series of injuries, namely, those which they, as a Nation, either directly or through their citizens, and the persons enjoying the protection of their flag, have suffered, by reason of the acts committed by the several vessels referred to in their case, which are generically known as the Alabama claims. When the Treaty was signed, both parties evidently contemplated a discussion before the Arbitrators of all the damages which could be shown or contended to have resulted from the injuries for which the United States were seeking reparation.

(c) In order to bring any claim for indemnity within the jurisdiction of the Tribunal, the United States understand that it is necessary for them to establish: 1st, that is a claim; 2d, that at the date of the correspondence between Sir Edward Thornton and Mr. Fish, which led to the Treaty, it was generically known as an Alabama claim; and, 3d, that it grows out of the act of some one of the vessels referred to in their Case. They also understand that the Tribunal of Arbitration has full jurisdiction over all claims of the United States which can be shown to possess these three attributes.What claims are within the jurisdiction of the Tribunal.

A review of the history of the negotiations between the two Governments prior to the correspondence between Sir Edward Thornton and Mr. Fish, will show the Tribunal what was intended by these words, “generically known as the Alabama claims,” used on each side in that correspondence.Resume of negotiations respecting Alabama claims.

(d) The correspondence between the two Governments was opened by Mr. Adams on the 20th of November, 1862, (less than four months after the escape of the Alabama,) in a note to Earl Russell, written under instructions from the Government of the United States. In this note Mr. Adams submitted evidence of the acts of the Alabama, and stated: “I have the honor to inform your Lordship of the directions which I have received from my Government to solicit redress for the national and private injuries thus sustained.”1 Mr. Adams, November, 1862, asks “redress for private and national injuries.”

Thus the Government of the United States in the outset notified Her Majesty’s Government that it would expect indemnification from Great Britain for both the national and the individual losses, and Lord Russell met this notice on the 19th of December, 1862, [Page 190] by a denial of any liability for any injuries growing out of the acts of the Alabama.1 Liability denied by Great Britain.

When this decision was communicated to the Government of the United States, Mr. Seward informed Mr. Adams that that Government did “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.” This statement could have referred only to the claims for national and for individual redress which had been thus preferred and refused.United States refuse to relinquish their claims.

As new losses from time to time were suffered by individuals during the war, they were brought to the notice of Her Majesty’s Government, and were lodged with the national and individual claims already preferred; but argumentative discussion on the issues involved was by common consent deferred.2 Many claims lodged during the war, but discussion deferred.

In the course of these incidents, Mr. Adams had an interview with Earl Russell, (described in a letter from Lord Russell to Lord Lyons, dated March 27, 1863,) in which, referring to the well-known and permitted conspiracy organized in Great Britain to carry on war against the United States through a naval marine created in British waters, and to the means ostentatiously taken to raise money in London for that purpose, he said, that there was “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 mew to aid the Confederate cause.” And on the 23d of October in the same year, (1863,) Mr. Adams proposed to Earl Russell for the settlement of these claims “some fair and conventional form of arbitrament or reference.”3

It does not appear that during the war the exact phrase “Alabama claims,” was used in the correspondence between the two Governments. But it does appear that, in the note in which the claims of United States for the injuries growing out of the acts of the Alabama itself were first preferred, the United States presented the claims of their citizens for the losses in the destruction of the Ocmulgee, and some other vessels, by the Alabama, and also their own claim for national injuries caused by the acts of the same vessel; and that liability for all such injuries being denied by Great Britain, and re-asserted by the United States, the discussion was reserved for a more convenient time by common consent.Reasons all the calling “Alabama claims”.

When, as already stated, new injuries were received from the acts of other vessels, as well as from acts of the Alabama, claims therefor were added to the list to be all taken up together when the time should arrive. The fact that the first claim preferred grew out of the acts of the Alabama explains how it was that all the claims growing out of the acts of all the vessels came to be “generically known as the Alabama claims.”

On the 7th of April, 1865, the war being virtually over, Mr. Adams renewed the discussion. He transmitted to Earl Russell an official report showing the number and tonnage of American vessels transferred to the British flag during the war. He said, “The United States commerce is rapidly vanishing from the face of the ocean, and that of Great Britain is multiplying in nearly the same ratio.” “This process is going on by reason of the action of British subjects in co-operation with emissaries of the insurgents, who have [Page 191] supplied from the ports of Her Majesty’s Kingdom all the materials, such as vessels, armament, supplies, and men, indispensable to the effective prosecution of this result on the ocean.” He asserted that “Great Britain, as a national Power, was fast acquiring the entire maritime commerce of the United States by reason of the acts of a portion of Her Majesty’s subjects, engaged in carrying on war against them on the ocean during a time of peace between the two countries and he stated that he was “under the painful necessity of announcing that his Government cannot avoid entailing upon the Government of Great Britain the responsibility for this damage.” 1 In April, 1865, United States renew discussion. Responsibility of Great Britain re-asserted.

Lord Russell evidently regarded this as an unequivocal statement of a determination to hold Great Britain responsible for at least a portion of the national injuries growing out of the acts of the cruisers. He said, in reply, “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 have sustained.”2 Denial of liability

Mr. Adams, in his reply on the 20th of May, repeated the demand. He referred to the destruction of individual vessels and cargoes, and said 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.” He declared that “the very fact of the admitted rise in the rate of insurance on American ships only brings us once more back to look at the original cause of the trouble;” and he again said, that “the injuries thus received are of so grave a nature as in reason and justice to constitute a valid claim for reparation and indemnification.”3 May, 1865, the United States classify claims as “direct” and “indirect,” and demand reparation for all.

It will be observed that the attention of Her Majesty’s Government is thus called in terms to a distinction, which has since become the subject of some controversy, between what were styled “direct” and what were styled “indirect” injuries, and that it was made clear beyond a question that the United States intended to claim remuneration for all.

Lord Russel so understood it, and said in reply:

It seems to Her Majesty’s Government that, if the liability of neutral nations were stretched thus far, this pretention, new to the law of nations, would be most burdensome, and indeed most dangerous. A maritime Nation, whose people occupy themselves in constructing ships and cannon and arms, might be made responsible for the whole damages of a war in which that Nation had taken no part.4 Great Britain denies liability for indirect and refuses arbitration for direct claims.

Referring to the offer of arbitration, made on the 26th day of October 1863, Lord Russell, in the same note, said:

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.5

(c) This terminated the first stage of the negotiations between the two Governments. They commenced with the demand on the part of the United States for remuneration for national and for individual losses growing out of the acts of the Alabama, and a denial of the liability on the other side. This was followed up by similar demands for injuries growing out of the acts of other vessels, and by a proposal to submit the claims to arbitration.

The negotiations were closed by the repudiation of any possible liability [Page 192] of Great Britain for national injuries, as being a doctrine “most dangerous” to neutrals, and by the refusal to arbitrate the question of the captures of vessels and cargoes of individuals made by the Alabama.

It will be observed that Lord Russell here uses the word “Alabama” in a generic sense. The note of Mr. Adams to which he was replying complained of “the burning and destroying on the ocean a large number of merchant-vessels and a very large amount of property belonging to the people of the United States by a number of British vessels.”1 The Parliamentary paper from which this extract is cited is styled “Correspondence respecting the Shenandoah.” Mr. Adams’s note refers to the acts of the Shenandoah, the Florida,2 and the Alabama.3 Lord Russell’s note also refers to the Oreto4 and the Shenandoah.5 It is evident therefore that when he denies liability and refuses the arbitration as to the acts of the Alabama, he uses the word “Alabama” in a generic sense.Lord Russell the author of the term “Alabama claims.”

The conclusion is irresistible either that the Alabama then stood as the generic representative of all the vessels, or, on the other hand, that Lord Russell first endowed the word Alabama with a generic sense.

(d) The evidence before the Tribunal does not show the use of the exact expression “Alabama claims” before October 4, 1866. It then appeared in a leader in the London Times, in the course of which, after referring to the “so-called Alabama claims” it is said: “The loss occasioned by American commerce in consequence may be damnum sine injuriâ, and therefore no ground of a legal action, and yet it may be a wise act of courtesy to waive the benefit of this plea.” It follows from this, that at that early day the phrase “Alabama claims” had become so well known as to be styled “so-called.”This term well known in October, 1866.

Great Britain having thus possessed herself of a large part of the American commercial marine, through the acts of the cruisers dispatched from her ports to carry on war against the United States, and having refused not only to make indemnity therefor, but also to submit the question of her liability to arbitration, Lord Russell next proposed, with what makes approach at least to audacity, “the appointment of a commission to which shall be referred all claims arising during the late civil war, which the two Powers shall agree to refer,” excluding of course the Alabama claims; in other words, that the extravagant claims of British subjects upon the United States should be recognized, while the grave injuries to the United States and their citizens should be ignored. Great Britain also proposed to guard against a possible retransfer of the commercial marine to the United States under the same circumstances, when England should be a belligerent and the United States should be neutral, by letting “by-gones be by-gones,” “forgetting the past,” and, “as each had become aware of defects that existed in international law,” “attempting the improvements in that code which had been proved to be necessary.”6 Lord Russell proposes to let by-gones bc by-gones.

Mr. Seward in reply 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 case, the demands that we have heretofore made upon the British Government for redress of wrongs committed in violation of international law. I think that the country would he equally 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 [Page 193] Majesty’s Government, and these claims are refused to be made the subject of friendly but impartial examination.”1 United States decline to waive any of their claims.

(e) In the summer of 1866 a change of Ministry took place in England, and Lord Stanley became Secretary of State for Foreign Affairs in the place of Lord Clarendon. He took an early opportunity to give an intimation in the House of Commons that should the rejected claims be revived, the new Cabinet was not prepared to say what answer might be given them; in other words, that, should an opportunity be offered, Lord Russell’s refusal might possibly be reconsidered.The Stanley-Johnson convention.

Mr. Seward met these overtures by instructing Mr. Adams, on the 27th of August, 1866, “to call Lord Stanley’s attention, in a respectful but earnest manner,” to “a summary of claims of citizens of the United States, for damages which were suffered by them during the period of the civil war,” and to say that the Government of the United States, “while it thus insists upon these particular claims, is neither desirous nor willing to assume an attitude unkind and unconciliatory toward Great Britain.” He also said that he thought that Her Majesty’s Government could not reasonably object to acknowledge the claims.2

Lord Stanley met this overture by a communication to Sir Frederick Bruce, in which he denied the liability of Great Britain, and assented to a reference, “provided that a fitting Arbitrator can be found, and that an agreement can be come to as to the points to which the arbitration shall apply.3

A long negotiation ensued. In the course of it Mr. Seward wrote to Mr. Adams thus, on the 22d of May, 1867:

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.

(f) These negotiations were conducted in London, partly by Lord Stanley and partly by Lord Clarendon, on the British side, and partly by Mr. Adams and partly by Mr. Reverdy Johnson, on the American side. In Washington Mr. Seward remained the Secretary of State. Great Britain was there represented, first by Sir Frederick Bruce, and afterward by Sir Edward Thornton.

(g) As the first result of these negotiations, a convention known as the Stanley-Johnson convention was signed at London on the 10th of November, 1868. It proved to be unacceptable to the Government of the United States. Negotiations were at once resumed, and resulted on the 14th of January, 1869, in the Treaty known as the Johnson-Clarendon convention.The Johnson-Clarendon convention.

(h) This latter convention provided for the organization of a mixed commission with jurisdiction over “all claims on the part of citizens of the United States upon the Government of Her Britannic Majesty, including the so-called Alabama claims, and all claims on the part of subjects of Her Britannic Majesty upon the Government of the United States which may have been presented to either Government for its interposition with the other since the 26th July, 1853, and which vet remain unsettled.”4

Lord Granville subsequently said, in the House of Lords, of these two conventions, “the former convention provided (Article IV) that the Commissioners shall have the power to adjudicate upon the class of claims referred to in the official correspondence between the two Governments as the Alabama [Page 194] claims. The latter (Article I) provided that 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 the citizens of the United States upon the Government of Her Britannic Majesty, including the so-called Alabama claims, shall be referred to commissioners, &c. Both conventions purposely avoided defining what constituted the Alabama claims, and admitted almost unlimited argument as to what the Alabama claims were. Both conventions were also open to the objection (at that time unavoidable) that there was no check on the award of the final Arbitrator, who might have given damages to any amount.”1 Lord Granville thinks it admits unlimited argument as to the extent of Alabama claims.

It is clear, therefore, that up to the conclusion of the Johnson-Clarendon treaty in January, 1869, there was no doubt in England that the term “Alabama claims” was understood as including the claims for the national injuries.

(i) It was supposed in America that it was not stated in sufficiently unequivocal terms in the Johnson-Clarendon Treaty that the national claims should be considered by the Arbitrators; and there were many signs that the Treaty, in consequence of that belief, would not receive the assent of the Senate. Mr. Reverdy Johnson, hearing of this, wrote an elaborate defense of himself, which has been seized upon by Her Majesty’s Government as proof that the United States had at no time claimed to receive indemnity for the national injuries which they have suffered. But the foregoing résumé of correspondence between the two Governments shows that, if Mr. Johnson made such a statement, he did it under a misapprehension. The error was never communicated to Her Majesty’s Government. On the contrary, only a few days later he wrote to Lord Clarendon in exactly the opposite sense. He said, referring to a claims convention between the two Governments in 1853, mar time neither Government, as such, made a demand upon the other; but that, as my proposition assumes, is not the case now. The Government of the United States believes that it has in its own right a claim upon the Government of Great Britain.”2 The convention not acceptable to the United States. Mr. Johnson informs Lord Clarendon that the United States have claims of their own on Great Britain

(j) Her Majesty’s Government also received the same intelligence about that time from other sources.

Its Minister at Washington, on the 2d of February, 1869, communicated to it the action of the Senate Committee on Foreign Relations. “Mr. Sumner,” he said, “brought forward the above-mentioned convention, and after making a short comment upon its contents, and stating that it covered none of the principles for which the United States had always contended, recommended that the committee should advise the Senate to refuse their sanction to its ratification. Mr. Sumner was authorized to report in that sense to the Senate.”3 On the 19th of April Mr. Thornton also advised Lord Clarendon of the rejection of the Treaty. “Your Lordship perceives,” he said, “that the sum of Mr. Sumner’s assertion is that England * * * is responsible for the property destroyed by the Alabama and other Confederate cruisers, and even for the remote damage to American shipping interests, including the increase in the rate of insurance; that the Confederates were so much assisted by being able to get arms and ammunition from England, and so much encouraged by the Queen’s Proclamation, that the war lasted much longer than it would otherwise have done, and that we ought therefore to pay imaginary additional expenses imposed upon the United States by the prolongation of the war.”4 Sir Edward Thornton advises Lord Clarendon that the convention is rejected because it is thought that it does not include the indirect claims.

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(k.) This may be called the end of the second stage of the history of the negotiations. It commenced with an intimation from Great Britain that a proposal from the United States would be listened to. In its progress negotiations were opened, which ended in a convention providing for the submission of claims of citizens of the United States against Great Britain, including the Alabama claims. This convention, in the opinion of Lord Granville, admitted unlimited argument as to what the Alabama claims were. The Treaty was rejected by the Senate of the United States, because, although it made provision for the part of the Alabama claims which consisted of claims for individual losses, the provision for the more extensive national losses was not satisfactory to the Senate. It is clear that, by this time, if not before, the phrase “Alabama claims” was understood on both sides as representing all the claims against Great Britain, “growing out of” its conduct toward the United States during the insurrection. A portion of these claims had been, throughout the discussions by Mr. Seward and Mr. Adams, grounded on the unnecessary Proclamation recognizing the insurgents as belligerents. The remainder rested on the acts of the cruisers. All were alike known as Alabama claims.

At this stage of the history, General Grant became President.Mr. Motley informs Lord Clarendon that the United States do not abandon the national claims.

On the 15th of May following Mr. Fish instructed Mr. Motley to say to Lord Clarendon that the United States in rejecting the Treaty “abandoned neither its own claims nor those of its citizens.1 Again, on the 25th of the following September, Mr. Motley was instructed by Mr. Fish in a dispatch, of which a copy was to be given to Lord Clarendon, to say that the President concurred with the Senate in disapproving the convention which had been rejected; that “he thought the provisions of that convention were inadequate to provide reparation for the United States, in the manner and to the degree to which he considered the United States were entitled to redress;” but that “he was not prepared to pronounce on the question of the indemnities which he thought due to individual citizens of the United States * * * nor of the reparation which he thought due by the British Government for the larger account of the vast national injuries it had inflicted on the United States.”2 And that the Johnson-Clarendon convention did not afford sufficient redress for the national injuries.

In an elaborate paper styled “Observations” upon Mr. Fish’s dispatch to Mr. Motley, of the 25th of September, 1869, which was appended to Lord Clarendon’s dispatches of November 6, 1869, to Sir Edward Thornton, the subject of the national, now called indirect, claims was fully considered in a way which must satisfy the Arbitrators that the British Government understood the nature, character, and extent of those claims. It is difficult when reading these observations, and the dispatch which called them out, to understand how Lord Granville could commit himself to the statement, in one of his recent dispatches, that “There was not a word in any letter preceding the Treaty to suggest any indirect or constructive claims; and the only intimation the British Government had had was from the speech of Mr. Sumner.3 The indirect claims as considered by Lord Clarendon.

It seems to us that these incidents are decisive of the whole controversy.

(l) In the following December the President thus alluded to the subject in his annual message to Congress:

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The provisions [of the Treaty] were wholly inadequate for the settlement of the grave wrongs that have been sustained by this Government as well as by its citizens. The injuries resulting to the United States by reason of the course adopted by Great Britain during our late civil war; in the increased rates of insurance, in the diminution of exports and imports, and other obstructions to domestic industry and production; in its effects upon the foreign commerce of the country; in the decrease of the transfer to Great Britain of our commercial marine; in the prolongation of the war; and the increased cost (both in treasure and lives) of its suppression; could not be adjusted and satisfied as ordinary commercial claims which continually arise between commercial nations. And yet the convention treated them simply as such ordinary claims, from which they differ more widely in the gravity of their character than in the magnitude of their amount, great as is that difference.President’s message to Congress, December, 1869.

And still again, in his annual message to Congress in December, 1870, the President referred to the subject with similar precision and particularity of statement, as cited in a previous part of the present Argument.1 Same in 1870.

It cannot, therefore, be doubted that, in the beginning of the year 1871, it was well understood by both Governments that the United States maintained that Her Majesty’s Government ought, under the laws of nations, to make good to them the losses which they had suffered by reason of the acts of all the cruisers, typically represented by the Alabama—whether those losses were caused by the destruction or vessels and their cargoes; by the prolongation of the war; by the transfer of the commerce of the United States to the British flag; by the increased rates of insurance during the war; by the expense of the pursuit of the cruisers; or by any other of the causes enumerated in the President’s message to Congress in 1869. Nor can it be doubted that they intended to reserve the right to maintain the justice of all these claims when opportunity should offer, nor that they regarded all these several classes of losses as embraced within the terms of the general generic phrase “Alabama claims.” It is also equally clear that the claims for compensation founded upon the Queen’s Proclamation were abandoned by President Grant.In January, 1871, the words Alabama claims were understood to include all claims of the United States against Great Britain, both national and individual.

(m) At that time, the condition of Europe induced Her Majesty’s Ministers to consider the condition of the foreign relations of the Empire. They found that their relations with the United States were not such as they would desire to have them; and they induced a gentleman, who enjoyed the confidence of both Cabinets, to visit Washington for the purpose, in a confidential inquiry, of determining whether those relations could be improved.2 Negotiations opened at Washington.

(n) It was not the first time that Great Britain had had cause solicitously to ask herself whether she might not have need of the good will of the United States.Reasons which induced those negotiations.

At the opening of the war between France and Great Britain on the one hand, and Russia on the other, the Emperor Napoleon found himself greatly embarrassed by England’s traditional attitude of exigency toward neutrals, so contrary to the traditional policy of France. The Foreign Minister, M. Drouyn de Lhuys, labored in correspondence with the British Government to induce the latter to relinquish her own policy and accept that of France. To effect this object, the great lever employed by M. Drouyn de Lhuys was the apprehension entertained in Great Britain of the possible attitude of the United States. He explains the matter as follows:

Ce qui touchait particulièrement le gouvernement anglais, c’était la crainte de voir l’Amérique incliner contre nous et prêter à nos ennemis le concours de ses hardis volontaires. [Page 197] La population maritime des États-Unis, leur marine entreprenante, pouvaient fournir à la Russie les éléments d’une flotte de corsaires, qui, attachés à son service par des lettres de marque, et couvrant les mers comme d’un réseau, harcèleraient et poursuivraient notre commerce jusque dans les parages les plus reculés. Pour prévenir ce danger, le cabinet de Londres tenait beaucoup à se concilier les bonnes dispositions du gouvernement fédéral. Il avait conçu l’idée de lui proposer, en meme temps qu’au gouvernement français et à tous les états maritimes, la conclusion a un arrangement, ayant pour but la suppression de la course et permettant de traiter comme pirate quiconque, en temps de guerre, serait trouvé muni de lettres de marque. Ce projet, qui fut abandonné dans la suite, témoigne de l’inquiétude éprouvée par les Anglais.1

How M. Drouyn de Lhuys worked on this state of mind of the British Government appears by the following extract from a dispatch from him to the French Minister at London, M. Walewski:

Les États-Unis enfin sont prêts, je ne saurais en douter, à revendiquer le rôle que nous déclinerions et à se faire les protecteurs des neutres, qui eux-mêmes recherchent leur appui. Le cabinet de Washington nous propose en ce moment de signer un traité d’amitié, de navigation et de commerce, où il a inséré une série d’articles destinés à affirmer avec une autorité nouvelle les principes qu’il a toujours soutenus et qui ne different pas des nôtres. Le principal secrétaire d’état de sa Majesté britannique comprendra que nous n’aurions aucun moyen de ne pas répondre favorablement à l’ouverture qui nous est faite, si la France et l’Angleterre, bien que se trouvant engagées dans une meme entreprise, affichaient publiquement des doctrines opposées. Que les deux gouvernements, au contraire, s’entendent sur les termes d’une déclaration commune, et nous pouvons alors ajourner l’examen des propositions des États-Unis. Il me paraît difficile que ces considérations ne frappent pas l’esprit de Lord Clarendon.2

These and like representations on the part of M. Drouyn de Lhuys, induced Great Britain to come to an arrangement with France.

(o) Not insensible to such motives, Lord Granville, pending the late war between France and Germany, dispatched a confidential agent to America to re-open negotiations with the United States.

This gentleman arrived in Washington early in January, 1871, and found the Government of the United States so disposed to meet the advances of Her Majesty’s government that, before the end of the month, Sir Edward Thorton was able to propose to Mr. Fish “the appointment of a Joint High Commission” to “treat of and discuss the mode of settling the different questions which have arisen out of the fisheries,” &c.3 Preliminary proposals and correspondence.

Mr. Fish replied, accepting the proposition upon condition that “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,’” should also be “treated of by the proposed Joint High Commission.”4 The proposed commission to treat of the Alabama claims.

Sir Edward Thornton, on the 1st of February, answered that “it would give Her Majesty’s Government great satisfaction if the claims were submitted to the consideration of the same High Commission.”5

The President of the United States, under the provisions of the Constitution, nominated to the Senate for its approval five commissioners to serve in the Joint High Commission on the part of the United States, and transmitted to the Senate the correspondence between Mr. Fish and Sir Edward Thornton, to explain the proposed duties of the nominees. Upon this explanation the Senate gave its assent to the several appointments; and thereupon the appointees each received a commission authorizing him “to treat and discuss the mode of settlement of the different questions [Page 198] which shall come before the said Joint High Commission.”1 The British Commissioners received a broader power, which was stated to be conferred upon them “for the purpose of discussing in a friendly spirit” “the various differences which have arisen” between Great Britain and the United States, “and of treating for an agreement as to the mode of their amicable settlement.”United States commissioners appointed and confirmed on the correspondence, and their powers limited by it.

Taking these powers and the correspondence between Mr. Fish and Sir Edward Thornton together, it is evident that each Government contemplated that all the differences between the two Governments within the range of the correspondence were to be discussed with a view to reaching a mode of settlement.

Among the Commissioners named on the part of the United States was Mr. Fish, the Secretary of State, one of the parties to the preliminary correspondence which led to the Treaty; and among those on the part of Great Britain was Sir Edward Thornton, the other party to that correspondence.

(p) The subject of the Alabama claims was opened at the fourth conference by an elaborate statement from the American commissioners.2 The Alabama claims.

They stated that “in consequence of the course and conduct of Great Britain during the Rebellion” the United States had sustained a great wrong, and had also suffered “great losses and injuries upon their material interests.” Thus, in the outset, they drew a distinction between certain political differences which had been the subject of some correspondence between the two Governments, and the material losses and injuries which could be estimated and indemnified by pecuniary compensation. They then went on to state their views more in detail as to such losses and injuries.The American commissioners state their understanding of the meaning of those words.

In order to bring them within the letter of the correspondence, and to define their understanding of the meaning of the language there used by Mr. Fish and by Sir Edward Thornton, they began by tracing these losses and injuries to the Alabama and the other cruisers. They said that “the history of the Alabama and other cruisers which had been fitted out, or armed, or equipped, or which had received augmentation of force in Great Britain, or in her ‘colonies,’ showed the losses and injuries for which they are claiming indemnification.”

They then said that the damage which they had suffered from these injuries was two-fold: 1st. That which had proximately resulted from the acts of the cruisers, “the capture and destruction of a large number of vessels with their cargoes,” and “the heavy expenditures in the pursuit of the cruisers;” and 2d, other injuries resulting less directly, though not less certainly—namely, “the transfer of a large part of the American commercial marine to the British flag,” “the enhanced payments of insurance,” “the prolongation of the war,” “and the addition of a large sum to the cost of the war, and the suppression of the rebellion.”

Thus Mr. Fish, one of the parties to the preliminary correspondence, and his colleagues, explained to Sir Edward Thornton, the other party to the correspondence, and to his colleagues, that the history of the cruisers showed all these losses and injuries; in other words, that they all grew out of the acts of those cruisers.

The American Commissioners next expressed their conviction that the history of the cruisers showed “that Great Britain, by reason of failure in the proper performance of her duties as a neutral, had become justly liable for the acts of those cruisers and of their tenders.”

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They then turned to the consideration of the damage which the United States had suffered from this class of injuries. They stated the amount of the claims for the destruction of private property which had up to that time been presented. They indicated a manner in which the amount of the expenses for the pursuit of the cruisers could be ascertained. They added that they had not yet made an estimate of the other damages less proximately resulting from the injuries complained of, because they “hoped for an amicable settlement.” This, however, was not to prejudice them “in the event of no such settlement being made.” They thus distinctly declared that these classes of injuries also were capable of being estimated and pecuniarily indemnified; and they reserved the right to claim such indemnity.They propose a mode of ascertaining the amount of the damages.

They closed their elaborate statement by proposing that the desired amicable settlement should be made within the walls of the room in which the conference was held, by means of an agreement “upon a sum which should be paid by Great Britain to the United States in satisfaction of all the claims and interest thereon.”And that payment thereof should be made.

Such an arrangement, in connection with the other provisions of the Treaty, would indeed have constituted a settlement, and an amicable one. It would have been a settlement, because, being a discharge of the obligation, it would have ended all controversy. It is not an amicable settlement, it is not in any sense a settlement, to engage in a protracted lawsuit, as the two Governments have been constrained to do, in consequence of the British Government refusing to enter into the amicable arrangement proposed by the United States.This would have been, an amicable settlement;

It has been asserted that this proposal was a “waiver” of the claims classed as “indirect.” So far from that being the case, the proposal contemplated that the payment of a gross sum was to be made and accepted as a “satisfaction of all the claims.” Such a payment and such an application of the payment are utterly inconsistent with the idea of a waiver of any of the claims.But no waiver of any class of claims.

The attitude of Mr. Fish on this occasion, and of the other. American Commissioners, was in perfect accord with the constant previous attitude of the American Government, as explained by Mr. Seward in his dispatch to Mr. Adams of January 13, 1868.1

Lord Stanley seems to have resolved that the so-called Alabama claims shall be treated so exclusively as a pecuniary commercial claim as to insist on altogether excluding the proceedings of Her Majesty’s Government in regard to the war from consideration in the Arbitration which he proposed. On the other hand, I have been singularly unfortunate in my correspondence if I have not given it to be clearly understood that a violation of neutrality by the Queen’s proclamation, and kindred proceedings of the British government, is regarded as a national wrong and injury to the United States.

The British commissioners without delay declined the American proposal for an amicable settlement.The proposal declined;

Sir Edward Thornton, the other party to the preliminary correspondence, and his colleagues, listened without objection to Mr. Fish’s definition of the sense in which the phrase “Alabama claims” had been used in that correspondence; nor did they at any time take exception to it, or propose to limit it. On the contrary, they expressly declined to reply in detail to the statement of the American Commissioners.Without exception to the definition of the term “Alabama claims.”

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After rejecting the “amicable settlement.” proposed by the American Commissioners, the British Commissioners next suggested the substitution of a litigious “mode of settlement” in its place, viz, a lawsuit or arbitration, wherein all liability to the United States for the injuries complained of should be denied and contested.A reference proposed by Great Britain.

The American Commissioners regarded this as a very different adjustment from the one which they had proposed. They unwillingly, and under conditions, accepted the British suggestion to refer to Arbitrators the full statement of injuries which they had just made, and which the British Commissioners had received without cavil.Unwillingly accepted by the United States.

(q) After a discussion of several weeks the Joint High Commissioners agreed upon a Treaty.The Treaty of Washington.

The preamble of this instrument recites that “the United States of America and Her Britannic Majesty, being desirous to provide for an amicable settlement of all causes of difference between the two countries, have for that purpose appointed their respective plenipotentiaries.”Meaning of “amicable settlement”

This statement is recitative and historical, and must be taken to be strictly true in the sense in which it was written.

It therefore does not lie in the mouth of either party to the Treaty to deny that each Government, in appointing its Commissioners, desired to provide for an amicable settlement of the San Juan water boundary, of the navigation of the Saint Lawrence, of the Canadian fisheries, of the navigation of Lake Michigan, of the use of the navigable rivers in Alaska, and of the claims of British subjects for losses arising out of acts committed against their persons or their properties, as well as of the Alabama claims.

But when it is attempted to confine the words of this preamble to a single one of the subjects grouped in the Treaty, and to transfer the operation of its language from the Governments of whom the affirmations are made to subjects disposed of in the treaty, it is an evident perversion of the purpose which the parties had in view. For the Treaty itself immediately makes it clear that the parties did not understand that the arragement as to the Alabama claims was an “amicable settlement.”

It is declared that the agreements in this respect are made in order “to provide for the speedy settlement of such claims.” If an “amicable settlement” of these claims had just been made, it is not to be supposed that the parties would enter into a formal agreement for their “speedy settlement” in the future.

The means for reaching this speedy settlement form the subject of the enacting clause of the Treaty. It is there provided “that all the said claims growing out of the acts of the aforesaid vessels, and generically known as the ‘Alabama claims,’ shall be referred to a Tribunal of Arbitration.”Claims for reference under the Treaty.

This language is nearly identical with the language of the correspondence between Mr. Fish and Sir Edward Thornton; by referring to what has preceded the Arbitrators will see that the change is one of taste, not of sense; of form, not of substance.The same which were described in preliminary correspondence.

We look in vain in it for a waiver of any of the demands made by Mr. Fish at the fourth conference. If the parties, after such specific notice, had intended to withdraw from the scope of the Arbitration any of those demands, or to provide that any of the injuries [Page 201] to the United States growing out of the acts of the cruisers were not to be considered by the Arbitrators, the limitation would undoubtedly have found a place in this part of the Treaty. It is clear, therefore, that there was no such purpose.No waiver of indirect claims.

Having provided a manner for giving the Tribunal jurisdiction over the subject of the reference, the Treaty next defines the extent of that jurisdiction.

The Arbitrators are to determine, 1st, whether the United States have suffered any of the specified injuries, that is, any injuries growing out of the acts committed by the cruisers; 2d, whether Great Britain is liable to indemnify the United States for any of those injuries, and if so, for which ones; and, 3d, it is provided that, in case the Tribunal finds that Great Britain has failed to fulfill any duty or duties as aforesaid, it may, if it thinks 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; but it is nowhere stated or intimated that in reaching that gross sum any part of the injuries to the United States which may be shown to grow out of the acts of the cruisers are to be or may be disregarded by the Arbitrators. Mr. Montague Bernard in his lecture on the Treaty has fairly admitted this. He says:Powers of the Tribunal. Power to assess damages not limited.

The Treaty of Washington is carefully trained to embrace only specific claims, such as had previously become known to both Governments under the name of the “Alabama claims,” for losses and damages caused by the acts of certain vessels, of which the Alabama was the typical instance; further, the losses must be such as can be fairly ascribed to some failure of duty on the part of England in respect of these vessels; and in making an award each vessel is to be taken separately. But, beyond this, the Treaty does not define, by express words of limitation, the nature of the losses on account of which compensation may be awarded, should the Arbitrators decide that any compensation is due. On this single point a disagreement has arisen between the two Governments.1 Views of Mr. Bernard.

That is true; the Treaty does not contain any express words of limitation. Nor does it contain any words to imply or suggest limitation. On the contrary the words are unequivocally and explicitly general, not to say universal, as comprehending all claims of the “specific” class; that is, “Alabama claims.” The assumption that there is such limitation is a contradiction of the express language and the plain meaning of the Treaty.

It appears from all this that the Arbitrators received by the Treaty full jurisdiction over all the claims presented and defined by the American Commissioners at the opening of the fourth conference. This conclusion receives a significant support from the twelfth article of the Treaty. That article provides for the creation of another and an independent Tribunal, which is also to have juridical powers for finding injuries and awarding damages. The claims to be submitted to such Tribunal are defined to be “claims on the part of corporations, companies, or private individuals, citizens of the United States, upon the Government of Her Britannic Majesty,” and “claims on the part of corporations, companies, or private individuals, subjects of Her Britannic Majesty, upon the Government of the United States.” Great care is thus taken to limit the jurisdiction of the tribunal created by Article XII to the consideration of injuries suffered by individuals, companies, or corporations. But the Tribunal of Arbitration at Geneva is invested by the terms of Article I with the jurisdiction over “all the claims on the part of the United States growing out of the acts” committed by the cruisers. The limitation to individual claims which is found in the twelfth article, is not found in the first article. On the contrary [Page 202] the language widens out with the evident purpose of enabling the court to become possessed of complete jurisdiction of the case.Twelfth article of the treaty.

(r) Four of the five British Commissioners have made public statements regarding these negotiations. No two of them agree.

Sir Stafford Northcote for instance has said, that “the Commissioners were distinctly responsible for having represented to the Government that they understood a promise to be given that these claims were not to be put forward, and were not to be submitted to Arbitration.”1 Sir Stafford North cote.

But Lord Ripon says:

If Her Majesty’s Commissioners had been induced by any such understanding to employ language which in their judgment admitted these claims, they would be liable to just and severe blame.2 Lord Ripon.

And yet Mr. Montague Bernard says, as if in apology for the language of the Treaty:Mr Bernard.

It is often necessary for the sake of agreement to accept a less finished or even less accurate expression instead of a more finished or more accurate one, and which must be construed liberally and reasonably, according to what appears to be the true intention of the contracting parties.3

All reasoning from recollections and understandings ought to disappear in reading the protocol of the second conference of the Joint High Commission, where it is stated that “at the commencement of the conference the United States High Commissioners called attention to the provision in the Constitution of the United States, by which the advice and consent of the Senate is required for the ratification of any Treaty which may be signed under the authority of the President.”Evidence from Protocol II.

It ought not to be credited that Her Majesty’s High Commissioners, after such a notice, would have been content to rely upon any promise of the American Commissioners to protect Great Britain against a class of claims which, without, such promise, were apparently included in the operative words of the Treaty sent to the Senate for its constitutional action. This conclusion is strengthened by the fact that Lord Ripon, Sir Stafford Northcote, and Mr. Montague Bernard left the United States before the Senate had acted upon the Treaty, and had no opportunity to know what affected the action of that body.

They proceeded to England. Soon after their arrival there the Treaty became the subject of discussion in each House of Parliament.4 Debate in Parliament.

Earl Granville, in the House of Lords, made a speech, in which he used expressions which have since been much commented upon. He said that “the pretensions” advanced by Mr. Fish “entirely [Page 203] disappear under the limited reference which includes merely complaints arising out of the escape of the Alabama.” Could anything have been more inaccurate than this brief, even bald, expression? We shall soon notice this speech further. At present it is sufficient to say that Lord Granville himself probably would not now contend that it was in any sense a correct statement of the effect of the operative clause of the first article of the treaty. Lord Cairns immediately challenged it. He said:Lord Granville.

I quite concur in the opinion that, under the Arbitration proposed by my noble friend, the late Foreign Secretary, and Lord Clarendon, it was quite possible for the United States to have made extravagant claims. But what is there in the present Treaty to prevent the same thing? I cannot find one single word in these protocols or in these Rules which would prevent such claims being put in and taking their chance, and under the Treaty proposed by my noble friend they could do more. There is this difference in a controversy of this kind between leaving all questions open to an Arbitrator or Arbitrators in whom you have confidence, and in referring these questions to these arbitrators with certain cut and dried propositions unfavorable to your views of the case. Suppose I charge a man with burning my house, and tell him that I hold him answerable for all the damages that ensue; and he said, “You have no power whatever. I happened to be passing at the time, and I saw a great number of men attacking your house and burning it. It was not in my power to prevent them doing it. I am sorry to see what happened, and I will refer the whole question to Arbitration.” I should be quite willing to say, I am perfectly prepared to refer the question to Arbitration if there is an article in the agreement providing that any person passing by while other persons were setting fire to my house, and did not stop them, is answerable for all the civil consequences of the house improperly being destroyed. Of course, if a man is so foolish as to consent to such an arrangement, he must not be surprised when he is made responsible for all the damage.Lord Cairns says the indirect claims in eluded in the treaty

These remarks of Lord Cairns were the only ones made during that debate which can aspire to be regarded as a criticism upon the operative part of the first section of the Treaty. They were full, precise, learned, and not open to doubt. Lord Ripon, who had negotiated the Treaty, was present at that debate. Lord Granville, who had from day to day, through the Atlantic cable, instructed Lord Ripon and his colleagues in the course of the negotiations, was also present. The Duke of Argyll, the Lord Chancellor, and Lord Kimberley, all Cabinet Ministers, were there. Did any or either of them dissent from Lord Cairns’s opinions? If they did, the official records of the debates do not show it, although all of them spoke in the debate.His construction not questioned

So far as the views of Lord Ripon can be gathered from a speech made by him in the same debate, they were in accord with those of the United States. He said:Lord Ripon’s views.

Now, so far from our conduct being a constant course of concession, there were, as my noble friend behind me (Earl Granville) has said, numerous occasions on which it was our duty to say that the proposals made to us were such as it was impossible for us to think of entertaining. Nothing can be more easy than to take the course adopted by my noble friend opposite, (the Earl of Derby,) and to say that all the demands we resisted were so preposterous that it would have been absurd to entertain them, while those upon which concession was made were the only ones really in dispute. My noble friend says that no Arbitrator would have entertained a claim for what the Americans term our premature recognition of belligerent rights and the consequent prolongation of the war. That may be true; but in the convention to which my noble friend appended his name, it would have been open to the Americans to adduce arguments on that point.

Is it not the fair, is it not the only conclusion to be derived from this language, that, while in the Treaty the United States abandoned their “claims for the premature recognition of belligerent rights, and the consequent prolongation of the war,” they adhered to all the claims growing out of the acts of the cruisers as they had been defined in the protocol ? Expressio unius, exclusio alterius.

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In the debate in the House of Commons, on the 4th of August, Sir Stafford Northcote spoke. His speech was reported in the Times of the next day. He said, regarding the previous conventions:Sir Stafford Northcote.

They [the United States] might have raised questions with regard to what they called England’s premature recognition of belligerency, and the consequential damages arising from the prolongation of the war, and with regard also to other questions which this country could not have admitted. Instead of this being the case, however, the Treaty, as actually concluded, narrowed the questions at issue very closely by confining the reference solely to losses growing out of the acts of particular vessels, and so shutting out a large class of claims upon which the Americans had heretofore insisted.

Thus, according to Sir Stafford Northcote, also, the claims abandoned by the United States were those “growing out of” “the premature recognition of belligerency.” He evidently did not think that they had abandoned any of their claims “growing out of the acts of the vessels;” otherwise he would have said so. On the contrary, he said that the “large class of claims upon which the Americans had heretofore insisted” were to be “shut out,” not because they were expressly excluded by the terms of the Treaty, but because, “by confining the reference solely to losses growing out of the acts of particular vessels,” the parties had, in his judgment, made it impossible for the United States to connect the objectionable claims with what the treaty pointed out as the only cause of the injuries which the Arbitrators could regard.

The United States thought that it was possible to make such a connection, and so they stated in their Case. The conflicting revelations of the several Commissioners which have followed, justify Sir Stafford Northcote in his remark, that “in order to maintain a thorough good feeling between the two countries, it was better * * * that the public of England and America should see the result at which the Commissioners had arrived, without going into all the questions raised and discussed in the course of the negotiations.”

More than that, they show the wisdom of the decision of Her Majesty’s Government, announced by Lord Granville in his speech in the following language:

At their very first meeting the American and the British Commissioners came to an agreement that they would keep secret their discussions, and that, though accounts of them would be communicated to their respective Governments, yet they were to be considered as confidential, and not to be published. I may add, that I have not the lightest doubt of the wisdom of the course pursued by the British and American Commissioners. They had thirty-seven long sittings; and I will venture to say that if every one of the ten Commissioners—not to mention the two able secretaries—had thought it incumbent upon them to show their patriotism and power of debate for the admiration of the two hemispheres, the thirty-seven sittings would have been multiplied by at least ten times, while the result of their deliberations would have been absolutely nil. I think the Commissioners on both sides acted advantageously to their respective Governments. The representations of both displayed great zeal, ability, patience, temper, and an honest desire to come to some compromise, even though the difficulties appeared at first sight to be irreconcilable. The noble earl (Earl Russell) thinks that whenever the Americans proposed anything it was immediately accepted. This, however, was by no means the case. The fact is, that the Americans, in perfect good faith, laid down a great many conditions which the British Commissioners at once declined to accede to, and even refused to refer for consideration to the Government at home. Many other propositions that were made were referred back to Her Majesty’s Government, the commissioners thinking it their duty to inform Her Majesty’s Government that upon their answer in the affirmative or negative the continuance of the negotiations might depend. In considering several of those questions Her Majesty’s Government felt that there would be a great responsibility in breaking off the negotiations, and that in such an event ridicule almost would be brought upon the Commissioners and ourselves. Nevertheless, we at once declined to yield in every case where we deemed it our duty not to yield. With regard, however, to other points, such as those relating to forms of expression, and which did not conflict with the real objects of the Treaty, we willingly either acquiesced in the proposal or else made counter proposals, which were met in the same spirit of fairness by the American Commissioners.

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When Lord Cairns heard this statement he said, this is “a Treaty upon which the Government did not merely give a final approval, but for the daily composition of it they were virtually responsible.” The Counsel of the United States, therefore, feel themselves justified in asssuming that such masters of the English language as Mr. Gladstone, Lord Granville, the Lord Chancellor, the Duke of Argyll, and other members of the British Cabinet, must have been aware of the extent of the operative words of the first article of the Treaty, and must have seen that it contained no waiver of the indirect claims, or limitation of the powers of the arbitrators. They did not object to it, and it must have been because they felt that they had protected Great Britain by the condition which they had imposed upon the United States, obliging them to trace all their complaints of injury to the acts of the cruisers as the originating cause of the damage.Conclusions.

(s) The signature of this Treaty terminated the third stage of the negotiations between the two Governments. It left the Parties solemnly bound to invite other Powers to join them in creating a Tribunal to take jurisdiction of “all the said claims growing out of acts committed by the aforesaid vessels, and generically known as the ‘Alabama claims.’”

To bring a complaint within that definition, it must be a claim; that is, an injury for which the United States demand pecuniary compensation. The evidence is overwhelming that from the commencement they have demanded compensation for their national injuries, as well as for the injuries to their citizens, growing out of the acts of the vessels.

It must also have been generically known as an Alabama claim. The evidence is equally conclusive that the American Commissioners understood that the national and private injuries set forth in the American statement at the fourth conference were so generically known, and that Her Majesty’s Commissioners, to say the least, ought to have known it.

The claim must also grow out of the acts of the cruisers. That is a fact which the United States will be held bound to establish in these proceedings to the satisfaction of the Arbitrators.

(t) The United States, without suspicion that this palpable sense of the Treaty would be called into question, prepared and presented their Case to the Tribunal in December, on that theory.The American Case stated the claims in the language of the joint high commissioners.

After stating in that document in detail the principal reasons which induced them to think that Great Britain is justly liable to them for the injuries growing out of the acts of the cruisers, they presented the statement of those injuries in the precise language and form in which their Commissioners had stated them to the British high Commissioners, introducing nothing new, and varying in no respect from what had already been introduced and agreed upon.

They offered evidence which might enable the Arbitrators to determine the amount of the injuries which they had suffered by reason of the loss and capture of the vessels and cargoes belonging to their citizens, or by reason of the increase in the rates of insurance, or by reason of the expense to which they had been put in the pursuit and capture of the vessels.

As to the transfer of their commercial marine to the British flag, they offered no evidence; but they said that they ?asked the Tribunal to estimate the amount which ought to be paid to them” for that transfer.

Neither did they offer evidence of the damages to them from the prolongation of the war. They said “it is impossible for the United States to determine; it is, perhaps, impossible for anyone to estimate with accuracy the vast injury which these cruisers caused in prolonging the war.” They [Page 206] contented themselves, therefore, with stating reasons why (should the Tribunal hold that Great Britain is liable to make compensation to them for this class of injuries) the month of July, 1863, should be taken to be the time from which the war was prolonged by the acts of the cruisers; and they added that the Tribunal would be thus “able to determine whether Great Britain ought not, in equity, to reimburse to the United States the expenses thereby entailed upon them.”

(u) Fifty days after Her Majesty’s Government was made acquainted with the interpretation of the Treaty set forth in the American Case, it took exception, and averred that it had not expected to find claims preferred against it for increased rates of insurance, for the transfer of the commercial marine, and for the prolongation of the war.Long delay in objecting to it by Great Britain.

The United States had no intelligence before the 3d of February of this construction of the Treaty by Her Majesty’s Government. They think it fair to argue that a long silence on so vital a question as the extent of this submission implies some doubt in the mind of the parties remaining silent as to the justice of their conclusions. In a similar case between private parties, it might well be assumed that so long a delay in communicating the views of a party situated as Her Majesty’s Government was, after full knowledge of the views of the other party, would be deemed to be a waiver of the right to object.

(v) It has been said that the Treaty of Washington involved several concessions on the part of Great Britain, which were the supposed price paid for the abandonment of the national claims of the United States.Supposed concessions to the United States in the treaty.

1. It has been assumed that the declaration of certain principles to govern the Tribunal was a concession to the United States. But, unfortunately for this theory, it is stated in the British Case that these principles are “in substantial accord with the principles” of the general system of international law; and further, Lord Ripon, the chief of the British High Commissioners, has said that “Great Britain accomplished a signal benefit in binding the American Government by rules” from which “no country on the face of the earth is likely to derive so much benefit as England.”The rules.

2. It is said that the expression of regret for the escape of the cruisers was a concession; but it cannot be supposed that in the friendly expression of regret for the escape of the cruisers Her Majesty’s Government bargained for the withdrawal of claims which they regarded as dangerous to them.Expression of regret.

3. Acquiescence in the refusal to consider the Fenian claims in the Joint High Commission has been put forward as another concession. But the evidence shows that this class of claims was not embraced in the correspondence on which the Joint High Commission was founded, and therefore could not be considered, although in presenting it Her Majesty’s Government recognized the propriety of presenting claims for national as distinguished from claims for private injuries.Fenians.

In fact, Fenian claims for national injuries were presented by the British Commissioners. They are thus defined in the instructions to the British Joint High Commissioners:

In connection with the claims of British subjects, there is a claim on the part of the dominion of Canada for losses in life and property, and expenditures occasioned by the filibustering raids on the Canadian frontier, carried on from the territory of the United States in the years 1868 and 1870.1

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The presentation of these claims to the Joint High Commissioners of the United States is recorded in the following words in the protocol:

At the conference on the 4th of March, * * the British Commissioners proposed that the Joint High Commission should consider the claims for injuries which the people of Canada had suffered from what were known as the Fenian raids.

At the conference on the 26th of April, the British Commissioners again brought before the Joint High Commission the claims of the people of Canada for injuries suffered from the Fenian raids. They said they were instructed to Resent these claims, and to state that they were regarded by Her Majesty Government as coming within the class of subjects indicated by Sir Edward Thornton in his letter of January 26th as subjects for the consideration of the Joint High Commission.1

The American Commissioners replied that they were instructed to say that the Government of the United States did not regard these claims as coming within the class of subjects indicated in that letter as subjects for the consideration of the Joint High Commission, and that they were without any authority from their Government to consider them. They therefore declined to do so.

At the conference on the 3d May, the British Commissioners stated that they were instructed by their Government to express their regret that the American Commissioners were without authority to deal with the question of the Fenian raids, and they inquired whether that was still the case.

The American Commissioners replied that they could see no reason to vary the reply formerly given to this proposal.

The British High Commissioners said that, under these circumstances, 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 this as a portion of the claims were of a constructive and inferential character.

No argument, therefore, can be drawn from any supposed concessions by Great Britain, to justify that power in denying the jurisdiction of this Tribunal over the national claims which were presented, and persisted in, by the United States. Nor can it be assumed that Her Majesty’s Government objected on principle to a class of claims which, in a parallel case, Commissioners were presenting and urging upon the United States.

(w) Whatever doubt, if any, may ever have existed, or have been set up on the part of Great Britain, as to the true tenor of the written Treaty, no such doubt can reasonably exist at the present time.Conclusions.

While Mr. Gladstone, in the House of Commons, was asserting in such positive terms that the so-called indirect claims are excluded by the unequivocal and positive language of the Treaty, and denying that the Treaty could possibly receive any other construction, Lord Derby, in the other house, admitted that the Treaty was susceptible of the construction placed upon it by the United States; and in a later debate both Lord Derby and Lord Cairns in unequivocal language supported the same views.

All delusion on that point is now dispelled. No statesman in Great Britain would probably now make the assertion made by Mr. Gladstone, in February, in the House of Commons.

The Treaty speaks for itself. It is universally conceded that its natural construction is that put upon it in the American Case. Discussion of the subject has advanced so far at least towards dispelling misapprehension.

(x) Neither the hypothesis of Mr. Bernard, nor that of Sir Stafford Northcote, is produced in the celebrated debate in the House of Lords, which has already been alluded to, and which has been adduced by the [Page 208] British Government as notice to the United States, because of the alleged presence of Mr. Schenck, the American Minister.

In the first place, the expressions of Lord Granville on that occasion did but very obscurely refer to the question of the so-called indirect claims. He said:Lord Granville’s speech.

The noble Earl said that the United States has made no concessions; but in the very beginning of the protocols, Mr. Fish, renewing the proposition he had made before to much larger national claims, said:

“The history of the Alabama and other cruisers which had been fitted out, or armed, or equipped, or which had received augmentation of force in Great Britain or in her i colonies, and of the operations of those vessels, showed extensive direct losses in the capture and destruction of a large number of vessels with their cargoes, and in the heavy national expenditures in the pursuit of the cruisers; and indirect injury in the transfer of a large part of the American commercial marine to the British flag, in the enhanced payments of insurance, in the prolongation of the war, and in the addition of a large sum to the cost of the war and the suppression of the Rebellion; and also showed that Great Britain, by reason of failure in the proper observance of her duties as a neutral, had become justly liable for the acts of those cruisers and of their tenders; that the claims for the loss and destruction of private property which had thus far been presented amounted to about $14,000,000 without interest; which amount was liable to be greatly increased by claims which had not been presented.”1

These were pretensions which might have been carried out under the former Arbitration; but they entirely disappear under the limited reference which includes merely complaints arising out of the escape of the Alabama.2

Now there are some things quite remarkable in this part of Lord Granville’s speech—the only part which refers to the subject.

In citing the statement made by the American Commissioners, (not Mr. Fish,) which appears in the protocol of May 4, 1871, he stops at the word “presented,” noted with a period, as if it were the conclusion of the statement of the American Commissioners; while in the text there is a semicolon after the word “presented;” and the sentence concludes with the following words:

That the cost to which the Government had been put in the pursuit of the cruisers could easily be ascertained by certificates of Government accounting officers; that in the hope of an amicable settlement, no estimate was made of the indirect losses, without prejudice, however, to the right to indemnification on their account in the event of no such settlement being made.

Now the concluding words of the sentence, thus omitted by Lord Granville, contradict the intention which is ascribed to the American Commissioners, and thus annihilate the foundation for the subsequent remarks that these “pretensions entirely disappear under the limited reference which includes mere complaints arising out of the escape of the Alabama.”

Lord Granville does not say, with Mr. Bernard, that the supposed limitation of the reference consists of inaccurate language, purposely used in the spirit of diplomacy; nor does he say, with Sir Stafford Northcote, that the limitation is to be found in some unrecorded understanding of Commissioners; but he assumes to find the limitation in the express words of the Treaty.

This is done by assuming that the Treaty itself “includes merely complaints arising out of the escape of the Alabama.” This assumption is entirely unfounded; for the Treaty submits “all the said claims, growing out of acts committed by the aforesaid vessels, and generically known as the ‘Alabama claims;”’ which is a very different thing from the recital in Lord Granville’s speech.

Indeed, taking that speech as a whole, it is by no means clear that Lord Granville intended to set up any other limitation in the Treaty than such as would exclude claims on account of premature recognition of the [Page 209] belligerence of the Confederates by Great Britian. This hypothesis would explain his reference to claims connected with the cruisers.

We have sufficiently demonstrated, we think, that neither this phrase, nor any other contained in the Treaty, justifies the construction put upon it by Lord Granville.

In comparing what was said in this debate in the House of Lords by Lord Granville and Lord Cairns, with what is said by Sir Stafford Northcote in his speech, and Mr. Bernard, in his lecture, we think we see the explanation of all misconceptions respecting the scope of the treaty prevailing in Great Britain.Explanation of the misunderstanding.

The Johnson-Clarendon Treaty did not exclude from consideration, at least by words of express exclusion, claims of the United States on account of the premature recognition by Great Britain of the insurgents. Undue generality of language was imputed to that Treaty by members of either house of Parliament. When the Treaty of Washington came under discussion in Parliament, Lord Granville said, and said truly, that in this respect the Treaty of Washington had advantages over the Johnson-Clarendon Treaty. The former did not, like the latter, comprehend the belligerency question as a ground of claim. Lord Granville proved this by reference to the protocols and also to the Treaty, which in terms confines the American reclamation to losses growing out of the acts of cruisers of the Confederates designated by the typical name of the Alabama.

Mr. Bernard spoke in the same sense when he said in the remarks already quoted that the claims submitted were specific, (which is true,) as they are only the class of claims which grew out of the acts of the cruisers.

When Sir Stafford Northcote speaks of an “understanding” or a “promise” in limitation of the American claims, he confounds the two totally distinct questions of claim on account of the Queen’s Proclamation and the national injuries occasioned by it, and the claims on account of the insurgent cruisers and the national injuries occasioned by their acts. It was understood, and it is understood, that the former class of injuries are not comprised in the Treaty, but are in effect excluded by the express language of the Treaty, which confines reclamation to acts of the Confederate cruisers. It was understood, and it is understood, that the claims of the United States under the Treaty are co-extensive with losses growing out of the acts of the Confederate cruisers without limitation, because such is the express stipulation of the Treaty. Sir Stafford Northcote’s memory is at fault in suggesting that any understanding existed, or that any promise was ever made to prevent the United States from presenting claims for national injuries in this behalf. These, and the claims of private persons, are two classes of claims which had been previously presented by the American Government, and had been insisted on by it, in all the correspondence and acts associated with the Treaty of Washington.

(y) We think the Arbitrators must conclude that Her Majesty’s Government is in error in assuming that this august Tribunal is excluded from the consideration of any class of claims brought before it by the Case of the United States. The previous negotiations of the parties, the history of the cliams, the explicit declarations of the American negotiators in the conferences of the Joint High Commission, the proceedings in both Houses of Parliament, the long delay of the British government in acting upon the American Case after they knew its contents, the natural and only reasonable construction of the language of the Treaty itself—all strengthen this belief.Resume.

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(z) When two Nations have agreed by Treaty to submit to arbitration a question of national wrong between them, such agreement takes the place of war. If therefore it could by ingenious reasoning be made to appear (which we deny) that the British construction of this Treaty might possibly be maintained as plausible, yet we conceive that this Tribunal will, in the general interest of peace, feel itself not only authorized, but required, to so construe the Treaty as to take to itself the decision of every question pertinent to the issues, which, left unsettled, could lead to war. (a a) Pradier Fodéré, in one of his notes to Vattel, makes the following observations:Arbitration takes the place of war. The Tribunal the judge of its own powers. Pradier Fodere.

L’ arbitrage, très-usité dans le moyen-âge, été presque entierement négligé dans les temps modernes; les exemples d’arbitrages offerts et acceptés sont devenus de plus eu plus rares, par l’experience des inconveniénts qui semblent être presque inséperables de ce moyen, ordinairement insuffisant par le défaut d’un pourvoir sanctionateur.

Los que les grandes puissances constituent un tribunal arbitral, ce n’est ordinairement que pour des objets d’intérêt secondaire.1

Yet all men are of accord to look to international Arbitration as one of the means of diminishing wars, and much had been expected as an example from the present Arbitration.

The principle of international arbitration is well defined by Calvo, as follows:

L’arbitrage international dérive de la même, cause et repose sur les mêmes principes que l’arbitrage privé en matière civile ou commerciale. Il en diffère en ce que celui-ci est susceptible d’homologation par un tribunal ordinaire, qu’il est absolument obligatoire et que l’exécution en peut être toujours suivie par les voies de droit commun. Entres les états, le principe de souveraineté et d’indépendance réciproque n’admet en cette matière qu’une obligation morale de s’incliner devant les résultats de l’arbitrage sollicité; aussi, avant de recourir à ce mode de solution et pour mieux assurer le but définitif que l’on poursuit, est-il d’usage que les parties en présence signent ce qu’en langage de droit ou appelle un compromis, c’est-àdire, une convention spéciale qui précise nettement la question a débattre, expose l’ensemble des points de fait ou de droit qui s’y rattachent, trace les limites du rôle dévolu à l’arbitre et, sauf les cas d’erreur matérielle ou d’injustice flagrante, implique l’engagement de se soumettre de bonne foi à la décision qui pourra intervenir.2 Calvo.

Neither party loses anything by such good faith. The nature of the contract of international arbitration affords perfect remedy to either party, in the contingencies in which either is wronged, namely:

1°. Si la sentence a été prononcée sans que les arbitres y aient été suffisamment autorisés, ou lorsqu’elle a statué en dehors ou au-delà des termes du compromis;

2°. Lorsque ceux qui ont rendu la sentence se trouvaient dans une situation d’incapacité légale ou morale, absolue ou relative, par exemple, s’ils étaient liés par des engagements antérieurs ou avaient dans les conclusions formulées un intérêt direct ignoré des parties qui les avaient choises;

3°. Lorsque les arbitres ou l’une des parties adverses n’ont pas agi de bonne foi;

4°. Lorsque l’un ou l’autre de états intéressés dans la question n’a pas été entendu ou mis à même de justifier de ses droits;

5°. Lorsque la sentence porte sur des questions non pertinentes;

6°. Lorsque sa teneur est absolument contraire aux règles de la justice et ne peut, dès lors, faire l’objet d’une transaction.3

Conspicuous among causes of exception, is the case of “a sentence which bears on questions not pertinent.” But neither party can anticipate that the arbiters will undertake to decide any question beyond their competency.4

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(b b) Great Britain entered into an engagement to submit all the points in question to the Tribunal. We only ask the Tribunal to exercise the measure of jurisdiction which has been conferred upon them.

We assume that the Arbitrators have the power in the first instance to judge of their own competency, both in point of the scope of the Treaty and of the possible action of either Government.

The effect of the Treaty is to create a tribunal with complete jurisdiction of the subject-matter. It differs from a tribunal established by municipal law in two respects: first, that as Arbiters they do not possess the power of causing the execution of their sentence;1 and, secondly, that constituting an international tribunal, no such authority exists to enforce their sentence as in the case of arbitration under municipal law.

In fact, the sanction of the acts of the Tribunal is the faith of the Treaty.

(c c) That the Tribunal possesses power to pass on the question of its competency is a conclusion of general law; otherwise it would be a council of mediation, not a tribunal of arbitration. It is a conclusion also from the tenor of the particular Treaty, which commits to the Tribunal, not only “all differences” and “all claims,” but “all questions” submitted by either Government.

This conclusion is in perfect consonance with pure reason. We shall not assume that either Government maintains that, where one of the parties to a contract suggests doubt as to the meaning of some clause such expression of doubt dissolves the contract. That is contrary to law and to reason. If it were admitted between individuals, no man could ever be compelled to execute a contract. If it were admitted between nations, it Would be idle to enter into treaties; for then if, after treaty concluded, one power regrets its engagement, it needs only to proclaim a difference of intention, and thus to frustrate the rights of the other Power.

(d d) Indeed, if we may regard the pertinent explanations of Mr. Bernard, there is general reason for submitting the construction of treaties to the judgment of arbiters, and special reason in regard to the present Treaty. He says of treaties generally:Mr. Mountague Bernard.

I may permitted to observe, in passing, before taking leave of this part of the subject, that a treaty is an instrument which you cannot send to be settled in a conveyancer’s chambers, nor commit to a knot of wrangling attorneys; no, not even to the family solicitor. It is an instrument in the framing of which the sensitive and punctilious self-respect of governments and nations has to be consulted, and discussion must never be suffered to degenerate into altercation; in which it is often necessary for the sake of agreement, to accept a less finished or more accurate one: and which must be construed liberally and reasonably, according to what appears to be the true intention of contracting parties. In all this, there is no excuse for equivocal expression, and no defense of such ambiguities can be founded on it; but of apparent faults of expression it has often been, and often will be, the unavoidable cause.2

These expressions seem to be introduced as an apology for some intentional obscurity of language in the present Treaty. We do not so regard the matter. The history of the negotiations in this case abundantly shows that every word of the Treaty was well weighed by the British Ministers before it was signed by their Commissioners.

However this may be, if, as Mr. Bernard says, in order to conform to the delicacies of diplomatic intercourse and of international negotiation, it was necessary to employ in the Treaty unfinished language, inaccurate language, “faults of expression,” to say nothing of equivocal language, then there is all the more reason why the United States should [Page 212] ask the Tribunal to dispel the doubts which were created by the British Commission, for the benefit of the British Government.

If, contrary to our belief, the language of the Treaty be vague or equivocal, or if it rests on understandings unwritten, the question should be judged by the Tribunal, in whose judgment both parties ought to have implicit confidence. Should the judgment involve any act ultra vires, then will be the time for the injured party to refuse to accept such judgment, if the injury is great enough to justify so extreme a remedy.

(e e) The United States therefore adhere to the Treaty as of their own right; they adhere to it as the greatest, perhaps, of all modern efforts, to establish the principle of international arbitration; and they adhere to it in the sentiment of profound consideration for this august Tribunal, and for the sovereign States which have been pleased to accept their delicate duties in this behalf at the common solicitation of Great Britain and the United States.

And here we dismiss all considerations of this order, and, maintaining the competency of the Tribunal, we proceed to the question of the amount of damages claimed by the United States.

III.—MEASURE OF DAMAGES.

The responsibility of the British Government having, as we think, been established as law and as tact, we shall assume also, in what follows, that that responsibility has been proved to be co-extensive with the wrong; that is, it is a responsibility for the acts of the Confederate cruisers in question to the extent of the provisions of the Treaty.Rules for measuring damages.

1. The next inquiry is of the application of this responsibility to the facts, and the induction of the amount of damages for each specific head of injury.

We submit the following rules of judgment in this respect:

(a) When the demand of damage is founded on a tort, as distinguished from a contract, severity is to be shown toward the wrong-doer, and the losses which the injured party has suffered are to be appreciated with liberality for the purpose of indemnification.Severity to be shown to the wrongdoer in claims founded on torts.

Infractions of contract are to be anticipated, in view of the too prevalent carelessness of men in this respect, the possibility of which will, therefore, have been foreseen and taken into consideration by the other party.

But when there is violent wrong, it is a fact beyond prevision, which of course occasions more perturbation and derangement of the affairs of the injured party, and which has a character of perversity more grave than that involved in the mere non-execution of a contract. Of course, reparation should be exacted with more rigor.

(b) When the damage claimed is founded on a tort, the culpable animus of the wrong-doer constitutes an element of the question of damage. In such cases the injured party is entitled to damages beyond the amount of actual loss, in the nature of exemplary or punitive damages.The animus of the wrong-doer an element of damage.

The doctrine in this respect, as understood in Great Britain and the United States, is stated by an American author as follows:

“In these actions all circumstances of aggravation go to the jury.

“The necessary result of this rule is that all the attendant circumstances of aggravation [Page 213] which go to characterize the wrong complained of may be given in evidence; and so it has been held, both in England and in this country. Indeed, it may he said that in cases of tort, where no fixed and uniform rule of damages can be declared, the functions of the court at the trial of the cause are mainly to the reception and exclusion of evidence when offered either by way of aggravation or mitigation, and to a definition of the line between direct and consequential damage.”1

On this point there is unanimity of opinion among jurists, both of the common law, as in Great Britain and the United States, and of the civil law, as in the countries of the Roman law in Europe and America.2

The illustration of this rule, as among private persons, also applies to governments.

“In fact,” says Mayne, “if any other rule existed, a man of large fortune might, by a certain outlay, purchase the right of being a public tormentor. He might copy the example of the young Roman noble mentioned by Gibbon, who used to run along the Forum, striking every one he met upon the cheek, while a slave followed with a purse, making a legal tender of the statutory shilling.”3

(c) Distinctions arise in regard to the relation of the loss or damage and the act of injury, by reason of which reparation is demanded, which require attention, especially in view of the question of whether direct or indirect damages, which figures in the present case.The relation between the injury and its cause.

This distinction is raised in various forms of expression, the party of whom damages are demanded seeking to diminish the amount by alleging that they are consequential or remote, or indirect or not immediate.

All damages are claimed as a consequence of the act of wrong, and in that sense consequential, and therefore discussion necessarily ensues as to the more or of less remoteness, or indirectness, or immediateness of the consequence.

(d) But each of these conditions is, of itself, uncertain, vague, and sometimes incapable of precision, which has led to the endeavor to state the doctrine with more exactness, as calling for the inquiry whether the damage complained of is the natural and reasonable result of the wrong-doer’s act; and it is settled that it may be deemed of that character if it can be shown to be such a consequence as, in the ordinary course of things, would follow from those acts.4 Whether the natural result of the wrong-doer’s act.

In truth, every cause has a series of effects; or, to speak more accurately, each effect becomes itself a cause; and so on, from cause to effect, in a longer or shorter series of alternations between cause and effect, according to the particular circumstances.

(e) If law givers and jurists had been able to say that all damages for wrong should stop at the first effect of the cause, the definition of the rule would be less vague than it is in the common expression; but even then it would be necessary to reflect that the cause does not necessarily operate in a single line only, but frequently in several lines: it may operate in diverse directions, and produce many immediate and direct effects, as by radiation from the common centre of the causa causans, like a stone cast into water.

Of course, the solution of the problem becomes more and more difficult in proportion to the multiplicity of these different lines of action in which the primitive causes operate to produce effcts, which are themselves [Page 214] new causes, and all of them the natural, not to say necessary, consequences of the one definite act of wrong.

(f) As a given event may be, and often is, produced by a plurality of causes working together, so may a wrong be the effect of the action of two or more persons. In such case, the injured party has right of redress against all and each of the wrong-doers, although neither of them may be morally accountable for all the injury, and some one of them may have contributed to the injury in a comparatively small degree. But it is no defense for any of the wrong doers to say, “I did but co-operate with others, and that in a comparatively small degree, to inflict the injuries.”

Whether the effect complained of be or not directly connected with the cause, whether it be proximate or remote, whether the reputed injury be or not the natural and logical consequence of the alleged act of wrong, all these are in part questions of fact, which cannot be reduced to absolute precision, but of which the competent tribunal must judge.

Thus, in the example so much discussed by writers on the civil law, suppose that the buildings, cattle, and horses of a cultivator are destroyed by the malicious or culpable negligence of another, so as to establish the right of indemnity against the author of the conflagration, how far shall the demand of damages extend?

Reparation must at least comprehend all which it costs to rebuild the farm-buildings and to procure the same number and quality of cattle and horses, and the personal inconvenience and derangement caused by the conflagration.

But the destruction of the buildings and cattle has interrupted cultivation and deprived the proprietor of his expected crop. Shall this, too, be included in the indemnity?

And the interruption of culture and the losses incidental thereto embarrass the proprietor, so that, in the course of the expenditure to which he is subjected in the purchase of materials of construction and cattle and horses, he becomes indebted; the failure of his crop deprives him of the expected means of payment; his creditors come upon him and seize and sell whatever he has, and thus he becomes ruined and reduced to absolute destitution.

All these disasters are the manifest consequence and effect of the acts of the incendiary. Is the incendiary responsible for them all? Or is he only responsible for the value of the things consumed? Are the subsequent losses, which are confessedly the natural consequences of the act of wrong, so remote or indirect as to relieve the incendiary of responsility therefor?

The law does not require that the damage recoverable shall be the necessary effect of the cause,—that is, an effect impossible to prevent; it does not require that the damage recoverable shall be the first effect of the cause,—but only that the damage shall have efficient cause in the act of wrong.

And the party injured is not to be deprived of redress, if he failed to employ extraordinary means to arrest the progress of his losses and diminish their amount, provided he took the ordinary steps of prudence to that end.1

All these, we repeat, are considerations of fact, which the competent tribunal judges according to the circumstances and which do not admit of absolute legal conclusions of law.

(h) Damages, reparation, indemnity, all these are terms to describe [Page 215] the same thing. Indemnity includes both lucrum cessans and damnum emergens. It includes also moral as well as material damage.1 And it involves injury to persons as well as things.Damages should be an indemnity.

But, in all cases, the question of the amount of damage and its equivalent in pecuniary reparation becomes one of fact for the consideration and the equitable determination of the competent tribunal, as illustrated by the numerous cases, especially at common law, in which revision of sentence is called for on account of erroneous verdicts of damage.Whether so or not a question of fact.

2. We proceed to apply these considerations to the several heads of injury to the United States growing out of the acts of the Confederate cruisers sub lite, and the consequent damages due by Great Britain, discussing these points in the order in which they appear in the American Case.Application of principles.

(a) The United States claim indemnity for actual property of the Government in vessels destroyed, and for immediate personal injuries to the officers and crews, caused by the Confederate cruisers, the responsibility for whose acts we have in previous discussion attached to Great Britain.As to personal injuries.

In our enumeration of the particular facts, we have considered the case of each cruiser in respect of which we claim; we have proceeded to connect each of those cruisers with the British Government, so as, in our opinion, to establish its failure to fulfill the Rules of the Treaty in regard to the several cruisers; and we have treated fully the question of diligence as to each of these cruisers, as required by the Treaty Rules.

(b) The property destroyed consisted, first, of vessels, with their apparel, equipment, and armament, belonging to the Government of the United States.As to property of the United States destroyed.

Statements in detail of the losses of this class, officially certified either by the Secretary of the Treasury or the Secretary of the Navy, according as the vessels appertained to one or the other branch of the public service, appear in the appendix to the American Case.

There is no question here of indirect or direct damages, notwithstanding some vague suggestions to that effect in the British Counter Case.

If a ship destroyed at sea is not a case of direct loss, then there is no sense in language and no reason in law.

What amount of damage is due in such a case? Surely the value of the thing destroyed is the minimum of such amount, even throwing out of question the element of wrong and looking at it as one of simple negligence.

How shall the value of the thing destroyed be ascertained? We present official certificates of the value, and we confidently submit, as between governments, that such official statements are to be received as fact. The British Counter Case undertakes to contradict such official certificates by means of opinions of the British Admiralty. We reject all such opinions. We refuse to recognize them as available in any sense to detract from the authentic proof contained in the authoritative documents offered by the American Government.

(c) The United States claim indemnity in like manner for vessels and other actual property or private citizens of the United States destroyed, and for immediate personal injuries to the officers and crews, caused by Confederate cruisers, the responsibility of whose acts we have, as we think, already attached to the British Government.As to property destroyed and injuries inflicted upon citizens of the United States.

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The nature of these reclamations is explained in the American Case and in the appendix thereto, especially in the seventh volume, and in supplementary documents there will be found detailed statements, made on oath, with valuations and other particulars, for the information of the Tribunal.

The British Counter Case undertakes to control the facts thus set forth, and to do so by means of estimates, made by British subjects at the request of the British Government.

The Counsel of the United States respectfully submit that the claims of the United States in this behalf, vouched as they are, cannot be met by any such conjectural estimates as are put in by the British Government.

The United States, in those documents, have exhibited the value of the property captured or destroyed as the primary element and lowest measure of damage and of consequent reparation. Justice, we conceive, and the universal practice of nations, demand thus much, at least, of indemnity for wrong.

(d) The United States also claim payment of the expenses incurred by the Government in pursuit of the Confederate cruisers in question; of which expenses an account is given under the authority of the proper department of the United States.As to expenses in pursuit of the cruisers.

In this case, as in that of public vessels captured, we deny that the authentic accounts of the American Government can be controlled, as the British Counter Case undertakes to do, by conjectural estimates of officers of the British Government.

We conceive this damage to come within the most rigorous rules of direct damage.

Indeed, Mr. Gladstone himself, in specifying the contents of the two classes of damage, direct and indirect, as he regards them, places the cost of pursuit in the first category.1

We disregard the suggestion, offered in the Counter Case of the British Government, that the United States are in fault for not having sooner captured the Alabama and Florida, or having tailed to capture other cruisers of the Confederates. The injured party, as we have already argued, is not held to take extraordinary measures to counteract the wrongful acts of the injuring party, but only ordinary measures. The evidence in the American Case and Counter Case shows that the United States did make great efforts and a diversion of forces for suppression of the Rebellion, at a large expense, for the pursuit of the Confederate cruisers in question; but if they had made none the omission could not be justly alleged in defense by Great Britain. This very objection on the part of the British Government confirms our claim of indemnity in this behalf. If it was the duty of the United States to pursue a Confederate cruiser, this duty being imposed upon us by the culpable conduct of the British Government, surely we have a perfect right to call on Great Britain to pay the expenses of such pursuit, in which we were only protecting ourselves against the effects of the delinquencies of the British Government.

The British Counter Case argues at some length against all claims on the part of the United States on account of the Confederate cruisers, even conceding that by failure to use due diligence Great Britain shall have incurred the culpability contemplated by the Treaty Rules.

To much of this argument we have already replied, either in the statement of general propositions or in particular commentary. We proceed to make other appropriate comments thereon.

[Page 217]

In reading this denial in the British Counter Case of any responsibility on the part of Great Britain, notwithstanding there should be established legal responsibility, we could not but reflect on what has been admitted in this respect by most intelligent members of Parliament, including successive Cabinet Ministers.

Mr. Cobden’s memorable remarks on this point, while the occurrences were passing, are quoted in the American Case. We requote only his statement as to actual losses by capture as follows:

“You have been carrying on hostilities from these shores against the people of the United States, and have been inflicting an amount of damage on that country greater than would he produced by many ordinary wars. It is estimated that the loss sustained by the capture and burning of American vessels has been about $15,000,000, or nearly £3,000,000 sterling. But that is a small part of the injury which has been inflicted on the American marine.”1

That was in 1864. Several years afterward, when there had been time for reflection, Lord Stanley said:

I have never concealed my opinion that the American claimants, or some of them at least, under the reference proposed by us, were very likely to make out their case and get their money. To us the money part of the affair is inappreciably small, especially as we have on our side counter claims, which, if only a small portion of them hold water,—and you can never tell beforehand how these matters will turn out,—will reach to a considerable amount, and form a by no means unimportant set-off to the claims preferred against ns. But, I think, if matters were fairly adjusted, even if the decision went against us, we should not be disposed to grudge the payment. The expense would be quite worth incurring, if only in order to obtain an authoritative decision as to the position of neutrals in future wars. 2

Mr. Forster said, in the same debate:

“They should further consider whether arbitration was the means of settling the matter. Tremendous injury had been inflicted on American citizens by means of the attacks upon their ships, and if the present misunderstanding was not settled upon a principle which would carry with it the feeling and moral sense of both countries, there was reason to fear that whenever we engaged in war we would suffer in the same way.”

Earl Russell has himself said, in a passage hereinbefore quoted from the preface to the edition of his speeches:

“Great Britain might fairly grant a sum equivalent to the amount of losses sustained by the captures of the Alabama.”

Will strict juridicial inquiry into the law and facts sustain the seopinions of Lord Stanley, Mr. Forster, and Lord Russell? We think it will.

First. The Treaty itself seems to require an award of pecuniary reparation. It stipulates that—

In case the Tribunal find that Great Britain has failed to fulfill any duty or duties as aforesaid, it may, if it thinks 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, (Article VII.) It further stipulates 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. (Article X.)

All these expressions, we submit, imply an award of substantial damages and satisfaction of all losses growing out of the acts of the Confederate cruisers, provided the finding of the Tribunal, on the question of fulfillment or non-fulfillment of duty, be adverse to Great Britain.

We dismiss, therefore, the question whether or not a conviction of guilty conduct is to go without any responsibility in damages, as argued by the British Counter Case, and we do not perceive any legal force in the arguments which the Counter Case adduces to this effect.

[Page 218]

The captures, it is said, were made by citizens of the United States. Of what avail here is that fact? Does the British Government intend to be understood as maintaining that all violations of neutrality on behalf of Rebels are taken out of the grasp of the law of nations? Is that to be held as the deliberate thought of Great Britain, the mistress of so many millions of discontented inhabitants of conquered States?Alleged condonement by the United States.

Next, it is said that the United States have condoned the wrongs done to them by their Rebels, and “that they have been re-admitted to their former full participation in the rights and privileges of the Federal Constitution.”

How does Great Britain know that, what right has she to know it, in a matter of Treaty obligations between the two Governments? If the consideration is of any force whatever, it strikes at the question whether Great Britain is responsible to the United States in case she did, or omitted to do, any of the actions forbidden or commanded by the Rules of the Treaty of Washington.

The Treaty does not provide by way of exception that if such acts done or committed in violation of neutral duty are done or omitted on behalf of Rebels, they shall involve no responsibility to the legitimate sovereign, or that such responsibility shall be measured by the more or less severity with which that sovereign shall see fit to treat his Rebels. On the contrary, the Rules are absolute in their terms, and adopted with specific reference to the questions of neutrality violated to the advantage of Rebels and the disadvantage of their sovereign.

Great Britain can set up no such defense. It involves considerations which she ought to have reflected on when she hastened to raise the Confederates into the status of international belligerents. In so doing she gave to them the means of doing injury to their sovereign, it is true, but for which that sovereign could and did take redress against them, when he saw fit, by exercise of the rights of war as well as the rights of sovereignty.

But Great Britain, by the course of policy she adopted, chose a condition, in which, whatever wrongs she or her subjects might suffer at the hands of the Confederates, she had no possible recourse, either against them or their sovereign; but in which she herself was responsible to that sovereign for whatever she might do in aid of such rebels, in violation of the law of nations or of Treaty.

Great Britain placed herself in that condition of her own free election, and against the will of the United States. She must take the consequences.

Her acts of actual or constructive complicity with the Confederates gave to the United States the same right of war against her as in similar circumstances she asserted against the Netherlands.

We, the United States, holding those rights of war, have relinquished them to accept instead the arbitration of this Tribunal. And the Arbitration substitutes correlative legal damages in the place of the right of war.The arbitration substitutes damages in the place of reparation by war.

This proposition is unequivocally admitted in the Counter Case as follows:

Her Majesty’s Government readily admits the general principle that, where an injury has been done by one nation to another, a claim for some appropriate redress arises, and that it is on all accounts desirable that this right should be satisfied by amicable reparation, instead of being enforced by war. All civil society reposes on this principle, or on a principle analogous to this; the society of nations, as well as that which unites the individual members of each particular commonwealth.1 Reply to arguments in the British Counter Case.

[Page 219]

The principle being thus admitted, no casuistry can serve to prevent its application to the present claims of the United States.

That, as the Counter Case suggests, the instruments of the injury done were the cruisers and their officers and crews, is immaterial to the question. Responsibility for the acts of those cruisers, by the very terms of the Treaty, is imposed on Great Britain, if she be found in fault according to the agreed Rules.

If it were otherwise, then no responsibility could ever devolve on any Government for breaches of neutrality produced by its neglect; for the Government is not in its own person the actual cruiser which sinks and burns; it is, however, the constructive captor by the spirit and the letter of the Treaty.

The British Counter Case argues that Great Britain ought not to be held responsible for all the acts of the cruisers during the entire voyage of each, because they enjoyed hospitality in ports of other countries. Unfortunately for the argument, Great Britain never did anything to stop the cruisers, as she did in the affair of Terceira; she continued to allow them to obtain supplies in her ports to the last, without which they could not have kept the seas; and although with knowledge of the positive guilt of the cruisers, by reason off their violation of her laws, she persisted in treating them as legitimate cruisers, when she might and should have arrested them whenever they entered into her jurisdiction, or have forbidden them to re-enter and practically outlawed them, as Brazil did, to punish the lesser act of abusing the hospitality of the Empire. But the neglect of duty on the part of Great Britain continued as to most, if not all, the cruisers of the Confederates to the very end.

The Counter Case argues that losses and specific captures, actually suffered by the United States, are not to be indemnified, because the liability of Great Britain disappears “among the multitude of causes, positive or negative, direct or indirect, distant or obscure, which combine to give success to one belligerent or the other.” If this argument were adduced to the question of the responsibility of Great Britain to the United States for the prolongation of the Rebellion, we could comprehend its meaning without admitting its application or force. But as applied to actual captures, and the loss thereby produced, the argument seems to be destitute of reason. On such premises no belligerent could be held to restitution of a wrongful capture, and no neutral could ever be held responsible toward either belligerent; for a “multitude” of secondary facts always enter into every discussion of responsibility for wrong, and especially for wrongs in time of war. The common sense of mankind oversteps all such immaterial incidents, and goes direct to the prime author of the wrong; the Government which wrongfully did, or wrongfully permitted, the act impugned, the expedition from her ports of the “floating fortress,” as the Counter Case properly calls the wrongdoing instrument of the guilty Government.

Claims like the present, says the Counter Case, have rarely been made, and, as the British Government thinks, never conceded or recognized.

It might suffice to reply that no such case, on so large a scale, has ever occurred, except in the controversy between Great Britain and France in 1776, and then Great Britain declared war. But the precise question arose and was duly adjusted between the United States and Spain. And the relations of Governments do not depend on mere precedent, but still more on right.

The Counter Case deprecatingly doubts whether “the greatness of the loss is to be regarded as furnishing the just measure of reparation without regard to the venial character of the default.”

[Page 220]

We deny that there is here any actual question of default of “venial character.” The defaults charged, and, as we think, the defaults proved, are grave, serious, capital. And we deny that there is any possible question of the “venial character of the defaults,” or that the loss can be measured by any such consideration. Punishment by penal laws may be graduated in this way, according to the greater or less degree of guilt; but indemnity for wrong cannot be: if you destroy my ship, my house, or my horse, by culpable carelessness, it is no answer to say that you might have been more careless—nay, that you might have acted with deliberate malice.

If there he responsible wrong, whether it be the greatest possible wrong, or a degree less than the greatest possible, still the indemnity follows as a legitimate and just consequence. Such, indeed, is the tenor of the Treaty, which attaches responsibility to mere want of “due diligence,” and does not require that Great Britain should have been guilty of the utmost conceivable degree of willful negligence which could by possibility be committed by any Government.Indemnity should follow injury.

(f) The Case of the United States desires the Tribunal to award a sum in gross in reparation of the losses complained of; and the Counsel request this, assuming the Tribunal shall be fully satisfied that the said losses are properly proved indetail, and that the sum total thereof, as claimed, is due by Great Britain.Award of a sum in gross.

In that contingency the Counsel assume that interest will be awarded by the Tribunal as an element of the damage. We conceive this to be conformable to public law, and to be required by paramount considerations of equity and justice.It should include interest.

Numerous examples of this occur in matters of international valuation and indemnity.

Thus, on a recent occasion, in the disposition by Sir Edward Thornton, British Minister at Washington, as umpire, of a claim on the part of the United States against Brazil, the umpire decided that the claimants were entitled to interest by the same right which entitled them to reparation.1 And the interest allowed in this case was $45,077, nearly half of the entire award, ($100,740.)The case of the Canada.

So in the case of an award of damages by the Emperor of Russia in a claim of the United States against Great Britain, under the Treaty of Ghent, additional damages were awarded in the nature of damages from the time when the indemnity was due.2 In that case Mr. Wirt holds that, according to the usage of nations, interest is due on international transactions.Award under the Treaty of Ghent.

In like manner, Sir John Nicholl, British Commissioner in the adjustment of damage between the United States and Great Britain, under the Jay Treaty, awards interest, and says:Award under the Jay treaty.

To re-imburse to claimants the original cost of their property, and all the expenses they have actually incurred, together with interest on the whole amount, would, I think, be a just and adequate compensation. This, I believe, is the measure of compensation usually made by all belligerent nations for losses, costs, and damages occasioned by illegal captures.3

(g) If the Arbitrators are not satisfied with the proofs presented by the United States, and entertain doubt as to the sums to be awarded in each case of private loss occasioned by Confederate cruisers, as to which the responsibility of the British Government [Page 221] attaches according to the Rules of the Treaty, then the Counsel of the United States respectfully submit that it may be the duty of the Tribunal, after finding the fact of the fault of Great Britain in the premises, to refer the assessment of the damages to the Assessors provided for by Article X of the Treaty, with such instructions as to the extent of the liability as the Tribunal shall see fit to give to such Assessors.Contingent reference to assessors.

We cannot admit that Great Britain shall appoint ex-parte Assessors to control the statements and proofs of the United States. That she in effect undertakes to do in the arbitrary estimates of officials or private persons contained in her Counter Case, as in the nature of proofs contradictory of the official statements and private affidavits or other proofs presented by the United States. If these formal statements on the part of the United States do not suffice, and estimates are needed, the Counsel of the United States respectfully insist that such assessments must be made by the official Assessors of the Treaty.

(h) In the Appendix to this Argument will be found special discussion of the merits of these claims of private persons with reference to the criticism of the British Counter-Case thereon. to which we respectfully solicit the attention of the Tribunal. (See Appendix to this Argument, Note D.)Claims of private persons.

We come now to the class of claims, some private, some general, which in recent discussions between the two Governments are objected to by Great Britain as being “indirect.”The indirect claims.

These are:

(1) The enhanced rates of insurance in the United States, occasioned by the Confederate cruisers in question, involving great pecuniary loss to the citizens of the United States.Enhanced rates of insurance.

Certain it is, this injury was actual, and a loss “growing out of the acts” of the Confederate cruisers by necessary relation of cause and effect, and it followed immediately on the appearance of those cruisers.

(2.) Transfer of the maritime commerce of the United States to Great Britain.Transfer of United States commerce to British flag.

This was a national loss “growing out of the acts” of the cruisers, and having them for its distinct and sole cause.

It was a loss to the United States constituting gain to Great Britain. We do not say that she was culpably negligent of the obligations of neutrality in order that she might thus gain thereby, but we do say that the loss to us, and the gain to her, were the necessary and immediate effect of her negligence in that respect.

(3.) The prolongation of the war of Rebellion in the United States.Prolongation of the war.

The admitted gravity of the injury thus suffered by the United States, and the supposed enormous magnitude of the sum requisite to indemnify the United States in the premises, have caused this head of claim, as stated in the American Case, to be conspicuous in the recent discussions between the two Governments, and to become the subject of special commentary on the part of eminent publicists and public men in Europe.

It is the claim which presents itself to the minds of all as the “indirect claims” of the United States.

Whatever we may further have to say regarding the distinction of indirect and direct, in the consideration either of the general or of the particular question of damages, we desire to have regarded as applicable mainly to this claim.

In stating our views of the general subject of damages we frankly recognized the existence of the distinction in law between damages [Page 222] proximate or direct and damages remote or indirect, admitting the force and the validity of the distinction.

But we took care to state at the same time that the distinction is altogether uncertain, not to say, in many cases, shadowy; that the dividing line can no more be drawn in the abstract than the line between the contiguous colors of the spectrum; and that in private controversies the attempt to make the discrimination generally results in a question of fact for the determination of the competent tribunal.Whether too remote for consideration to be determined by the tribunal.

The idea is well expressed by Mr. Pradier Fodéré, as follows:

Mais l’élévation des primes d’assurance amenée par les déprédations certaines et répétées de corsaires, mais la prolongation de la guerre due aux succès de ces derniers, pourraient être, sans trop forcer l’appréciation, considérées comme des suites prochaines, et, sinon nécessaires et uniques, du moins naturelles, de la faute du neutre. Il y a là, du reste, une série de considérations à peser, à étudier. La règle absolue, c’est qu’on ne peut équitablement et raisonnablement imposer la responsabilité des dommages indirects. Mais étant donnés tels dommages causés et éprouvés, quels d’entre eux sont directs, quels sont indirects? On ne peut pas le dire d’avance: c’est une question à examiner, en descendant dans les détails et en discutant les causes de chaque dommage.1 Views of M. Pradier Fodere.

What M. Pradier Fodéré says in this respect is fully justified by all the special discussions of the question in the jurisprudence of Great Britain and the United States, as well as of other countries of Europe and America. The well-considered treatise of Mr. Mayne, and the still ampler and more complete treatise of Mr. Sedgwick, contain abundant proof on this point.

The Counter Case of the British Government exhibits an apt illustration of this point, in arguing that even the claims for property actually destroyed by the Alabama are indirect claims, and therefore to be rejected by the Tribunal. It is not worth while to add to what we have already said on that argument. We suppose it assumes that negligence is the cause and escape the direct effect, so that the captures are the indirect effect; which is equivalent to saying that he who by malice or gross negligence discharges a loaded gun into a crowd is not responsible for the deaths or wounds he inflicts, because the injury done is the effect of the action of the ball, which is a secondary cause, and not of the act of negligence or malice which did but apply a match to the gun.

The Counsel of the United States would not need to have recourse to any such subtleties to show that the acts of the Confederate cruisers inflicted an injury on the United States in contributing to the prolongation of the war, and that such injury was a direct injury of Government to Government. Nor would it be any answer to say that this injury was but a contributing fact among other and even greater causes of the damage.General considerations.

Nor would it suffice to reply that the exact amount of the damage is difficult to fix. When a traveler is injured by reason of want of due diligence on the part of the managers of a railroad, it is no defense to say that it is difficult to fix the true value of his arm or his leg, or the money compensation of a long fit of sickness. That is a problem, like others of the same nature, which finds its solution every day in the ordinary courts of justice of all countries.

One nation invades another, and inflicts losses by acts of war on land. If they choose to make peace on the condition of the invader indemnifying the losses of the invaded, the sum which ought to be paid is debatable; but certainly it can be determined. So if two co-operating nations invade another, the sum of injury done by one of them as distinguished [Page 223] from the other is determinable, if not with exactness, yet approximately, like most other unliquidated damages; to say nothing of the question of exemplary damages in the cases of tort, which run together in the discretion and conscience of the competent tribunal.

But there is war on sea as well as on land. A war maybe exclusively maritime, like that between France and the United States. Such a war consists in the combat or capture of ships. Yet such a war inflicts national injuries and losses independent of the value of vessels destroyed, and if terminated by the payment of indemnities for the cost of the war, either by one or by several parties belligerent, the sum of the reparation can be calculated and determined.

Such is the relative predicament of Great Britain and the United States. We have been injured as a nation by acts of a maritime war happening, as the Counsel think they have proved, by the culpable and responsible negligence of the British Government. The wrong is direct as between the two nations.

We think we have distinct right of substantial indemnity in this behalf.

When a nation inflicts a wrong on a nation, is it due reparation to pay the price of certain ships destroyed? Surely not, any more than the fine paid by the wealthy Roman to repair the insults he inflicted on every person he met in the forum.

But considerations of large import in the sphere of international relations, of which the Government of the United States is the rightful judge, forbid their Counsel to press for extreme damages on account of the national injury thus suffered by the nation itself, through the negligence of Great Britain. Nevertheless, holding that in view, we have maintained in this Argument the plentitude of the jurisdiction of the Tribunal, because, in the judgment of the United States, such is the tenor and intent of the Treaty of Washington; and because they desire the judgment of the Tribunal on this particular question, for their own guidance in their future relations with Great Britain.United States do not desire extreme damages. The jurisdiction of the question belongs to the Tribunal.

They contend that the question of damages, as whether direct or indirect, is a juridical one, not one of the Treaty.

The United States did not insist on the absolute generality of scope which distinguishes the Treaty, with unreasonable expectations of having extravagant damages awarded by the Tribunal. Their object was a higher one, and one more important to them, and, as they conceived, to Great Britain.

It is not for their interest to exaggerate the responsibilities of neutrals; but only, in the sense of their action in this respect throughout their whole national life-time, to restrain the field of arms and enlarge that of peace, by establishing the rights and the duties of neutrality on a basis of truth and justice, beneficial in the long run to all nations.

If, as a juridical question under this Treaty, the Tribunal shall conclude that Great Britain is not bound to make reparation to the United States for general national injuries occasioned by the negligence of the British Government to fulfill neutral obligations in the matter of Confederate cruisers, it will say so; and, in like manner, if, as a juridical question, under the Treaty, the Tribunal shall conclude to the contrary and award damages in the premises, the United States will accept the decision as a final determination of the fact and the public law of the questions arising under the Treaty.

The United States desired that the Treaty should be a full and final [Page 224] settlement of all differences between the two nations, which it would not have been if the larger national claims, so long and so steadily insisted on by us, had been excluded from the scope of the Treaty, and so left to be a recurring subject of grief and offense in the minds of the people of the United States. They desired also that great principles of neutral obligations and neutral duty should issue from this High International Tribunal, representing five great Constitutional Nations, to serve as instruction and example to all nations, in the large interests of civilization, of humanity, and of peace.Without an adjudication upon it there will not be a lull settlement of all differences.

We, the Counsel of the United States, have acted accordingly, in the advocacy of the rights of the United States; earnestly and positively maintaining the principles involved in this Arbitration, but regarding the mere question of the amount of national damages to be awarded as secondary to the higher consideration of the welfare and the honor of the United States.

We now bring to a close this Argument on behalf of the United States, “showing the points and referring to the evidence” which we think should lead to an award by the Tribunal of reparation and indemnity from Great Britain, commensurate with the injuries the United States have suffered and the redress they are entitled to demand.Conclusion.

We shall not find in recent history any example of two powerful nations, with so weighty a matter of difference between them, submitting the measure of right and wrong, of injury and redress, in the great controversy, to any intermediary arbitrament. When their own reason and justice did not enable them to concur in accepting a fit solution of the grave dispute it has too often been left to work ill-will and estrangement between them, or led to open rupture of their peace.

The benevolent and sagacious counsels of the two governments have triumphed over the obstacles and resisted the dissuasions which have heretofore proved too strong to be overcome, and the success of this great example, so full of promise of peace and justice among nations, now rests with the Tribunal.

In the wise administration of this elevated and benign trust, for the welfare of the world confided to this august Tribunal, the Arbitrators will find no surer guide or support than a consideration of the ill consequences which would follow from a disappointment of the high hopes which, on all sides, attend this great experiment.

So far as the parties to this controversy are concerned, they are equally interested that the award should receive the moral acceptance of the people of both nations, as an adequate and plenary settlement of the matter of difference between them.

The people of the United States have definitely formed their opinions as to what the action of Her Majesty’s Government, now under judgment, was, as matter of fact, and as to the magnitude and permanence of the injuries which they, their property, and their prosperity, have suffered therefrom. They naturally look, therefore, with chief interest to the award of this Tribunal as a decision upon the question of the rightfulness of such action of Her Majesty’s Government, and by consequence of the rightfulness of such action in the future, should occasion arise for its imitation by the United States or other Powers.

This principal question having been determined, if Great Britain is held responsible for these injuries, the people of the United States expect a just and reasonable measure of compensation for the injuries [Page 225] as thus adjudicated, in the sense that belongs to this question of compensation, as one between nation and nation.

The disposition of this controversy by the Tribunal upon principles adequate to its profound interest to the Parties, and in the observant eyes of other nations, gives the best hope to the civilized world of a more general adoption of the arbitrament of reason, instead of force, in the disputes of nations.

And for the rest, the permanent and immutable principles of Justice are adequate for this, as for every other, situation of human affairs; for this, as for every other, Tribunal instituted in its name and for its maintenance. Justice—universal, immutable Justice—is wholly indestructible by the changing fortunes of States or by the influence of all-devouring time,

Casibus haec nullis, nullo delebilis aevo.

In this spirit we humbly submit the whole subject to the enlightened judgment of the Tribunal.

C. Cushing.
Wm. M. Evarts.
M. R. Waite.
  1. American Appendix, vol. iii, pp. 72, 73.
  2. American Appendix, vol. iii, p. 83.
  3. Mr. Adams to Earl Russell, Am. App., vol. ii, p. 641.
  4. Am. App., vol. ii, p. 182.
  5. Am. App., vol. i, p. 290; vol. iii, p. 522.
  6. Ibid., vol. i, p. 526.
  7. Am. App., vol. in, p. 553.
  8. Ibid., p. 361.
  9. Ibid., p. 562.
  10. Brit. App., vol. iv, paper v, p. 10.
  11. Ibid., p. 11.
  12. Ibid., p. 12.
  13. Ibid., p. 22.
  14. Ibid., p. 3.
  15. Lord Clarendon to Sir F. Bruce, Brit. App., vol. iv, paper 5, p. 164.
  16. Mr. Seward to Mr. Adams, Feb. 14, 1866, vol. iii, Am. App., p. 628.
  17. Am. App., vol. iii, pp. 632–636.
  18. Ibid., p. 652.
  19. Am. App. vol. iii, pp. 752, 753.
  20. Hansard, ubi supra.
  21. Am. App., vol. iii, p. 780.
  22. Ibid., p. 772.
  23. Ibid., p. 784.
  24. Am. App., vol. vi, p. 1.
  25. Ibid., p. 13.
  26. Appendix to British Case, vol. iv, No. 1, p. 19.
  27. Ante, p. 18.
  28. Statement by Lord Granville, Hansard, vol. ccvi, p. 1842.
  29. Drouyn de Lhuys, Les neutres pendant la guerre d’Orient, p. 14.
  30. Ibid., p. 28.
  31. Brit. App., vol. iv, paper ii, p. 1.
  32. Ibid.
  33. Ibid., p. 3.
  34. Brit. App., vol. iv, paper xii, p. 6.
  35. Ibid., p. 8.
  36. Am. App., vol. iii, p. 688.
  37. Lecture on the Washington Treaty, May 28th, 1872, London Times, 29th May, 1872.
  38. London Times May 28, 1872. Sir Stafford Northcote explains his meaning in a note read by Lord Derby in the House of Lords, and printed in the London journals of the 9th of June, 1872:

    “It has been supposed, and you seem to have supposed, that I said that an understanding existed between the British and the American negotiators that the claims for indirect losses should not be brought forward, and it has been inferred from this that we, relying upon that understanding, were less careful in framing the Treaty than we should otherwise have been.

    “That is incorrect. What I said was that we had represented to our Government that we understood a promise to have been given that no claims for indirect losses should be brought forward. In so saying I referred to the statement voluntarily and formally made by the American Commissioners at the opening of the conference on the 8th March, which I for one understood to amount to an engagement that the claims in question should not be put forward in the event of a Treaty being agreed on.”

  39. London Times, June 5, 1872.
  40. London Times, ut supra.
  41. House of Lords, Hansard, N. S., vol. 206.
  42. Brit. App., vol. iv.
  43. Sir Edward Thornton, in his note of the 25th of January, proposed a settlement of the questions “with reference to the fisheries on the coast of Her Majesty’s possessions in North America, and as to any other questions between them which affect the relations of the United States towards those possessions.”
  44. Parl. Paper, No. 3, (1871,) p. 8.
  45. Hansard, vol. ccvi, p. 1851.
  46. Vattel, Droit des gens, éd. P. Fodéré, tom. ii, chap, xviii, sec. 329, note.
  47. Calvo, Droit international, éd. fr., 1870, tom. i, p. 791.
  48. Calvo, ibid., p. 766. Compare Heffter, Droit international, liv. ii, s. 1095; Bluntschli, Code de Droit international, liv. i, s. 667.
  49. Pradier Fodéré, La Question de l’Alabama et le Droit des gens; Pierantoni, Gli arbitrati internazionali e il trattato Washington.
  50. Mellii, Institutiones juris civilis Lusitani, lib. i, tit. 4, sec. 21.
  51. Lecture on the Treaty of Washington, May 28, 1872, London Times, May 29, 1872.
  52. Sedgwick on the Measure of Damages, p. 528.
  53. Sourdat, Traité de la Responsabilité, tom. i, p. 97; Sedgwick on Damages, ch. xviii.
  54. Mayne on Damages, p. 14.
  55. Ibid., p 15.
  56. Sourdat, De la Responsabilité, tom. i, p. 96.
  57. Sourdat, De la Responsabilité, tom. i, p. 224.
  58. See Mr. Gladstone’s speech, London Times, February 7, 1872.
  59. Hansard, third series, vol. clxxv, p. 496; App. to American Case, vol. v, p. 509.
  60. Hansard, vol. cxc, p. 1150; App. to American Case, vol. v, p. 708.
  61. Page 130.
  62. Indemnity case of ship Canada, United States Documents, December 15, 1870, p. 153.
  63. Opinion of Attorney-General of the United States, vol ii, p. 20.
  64. Ibid., p. 31. See also Story, Conflicts of Laws, § 307.
  65. Pradier Fodéré, La question de l’Alabma, p. 37.