Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 7, 1874
General Schenck to Mr. Fish.
London , June 3, 1874. (Received June 15.)
Sir: Mr. Anderson, member of Parliament for Glasgow, has again been calling attention in the House of Commons to the treaty of Washington, and complaining that no provision was made for compensation to British subjects who suffered losses by the Alabama and other confederate cruisers. Mr. Bourke, under-secretary of state for foreign affairs, replied and explained. The discussion took place yesterday. I send the report of it, extracted from the proceedings of Parliament, published in the Times of this morning, which may be worth preserving, not so much from any interest or importance attaching to the subject itself, or the points presented, as for the way in which it illustrates the temper and tone of feeling prevailing here.
I have, &c.,
[From the Times, Wednesday, June 3, 1874.]
Mr. Anderson rose to call the attention of the house to losses sustained by British subjects not compensated under the Washington treaty, and to damages done to British subjects by the Alabama, and to move a resolution. He expressed his regret at the lateness with which this motion came before the house, but it was owing to circumstances beyond his control that he did not bring it forward last session; and he still felt that, injustice to certain parties, he was bound to proceed with it even at this late stage. In doing so he did not wish to attack the policy of the Alabama treaty, nor in any way to blame the late government for having made it; on the contrary, he thought that in making it we set a noble example to the world of two great nations undertaking to settle their difference by the arbitrament of reason rather than [Page 515] by that of the sword. It was a great example, which would yet bear good fruit. He did not think our having made great concessions in that treaty was a subject of regret. It only showed our magnanimity, for it required greater courage to make concessions than to fight for them. But he did blame the late government to a certain extent for not allowing that treaty to be discussed before it was ratified. Parliament was sitting at the time, and they refused the appeal made to permit its discussion in a somewhat high-handed manner. The discussion which was held was little better than a hollow sham. In this way had arisen one of those mistakes he would have to point out, which might have been corrected had it been discovered before the ratification. The claims he “had to urge were of three classes, although his resolution referred to only one of them. The first class was a very large one. It consisted of British subjects who held property in the Confederate States before the war, enjoying the protection of the law and institutions of the United States. The United States Government certainly ought to have compensated British subjects who lost their property in that way. The more that Government insisted the war was not a civil war, but a rebellion, they were bound to recognize that right. They had consistently refused to compensate their own loyal subjects for the damage done to them by the confederates; but a great change was going on with reference to that matter, and the probability was that before long the United States Legislature would take into consideration the necessity of compensating their loyal subjects for damage done during the rebellion by the confederates; and if they did so, he hoped Her Majesty’s government would insist on their compensating British subjects also. There were many instances of damage done to the property of British subjects by the Federal Army—property destroyed after the 9th of April, 1865, when General Lee surrendered. These claims would have been good, but they were barred by the date absolutely fixed by the treaty. The United States court, in litigation between the citizens of the United States, recognized the termination of the war as the 20th of August, and he was therefore at a loss to understand how, in the face of that fact, our negotiators could consent to the date of the surrender of General Lee as the termination of the war, when Jeff. Davis’s capture was not effected till a month later, and the surrender of the last confederate army six weeks afterward. On this point the chancellor of the exchequer, one of our negotiators, admitted that a “mistake” had been made. He said he believed that both parties really meant honestly to include all damage done to British subjects during the whole period of the war; but the English negotiators persisted in calling it a civil war, whereas the United States negotiators would not admit of any term but rebellion; and, as the treaty was likely to fall through, neither term was used, but dates were suggested, to which the English negotiators assented, without its having ever occurred to them how far they were really concerned with the beginning or end of the war. If a “mistake” had occurred, why, when pointed out, was it not rectified? The dates of the treaty had been most rigidly observed; and many claims were barred by that circumstance. In one instance a British subject had been imprisoned for 107 day, only 22 of which were within the treaty, and the remainder were to be uncompensated. There was a case of a British subject whose mills in Georgia were burned down on the 17th of April, only a few days after the date fixed by the treaty, and yet the claim was entirely debarred from compensation. The United States Government were aware that wrong had been done in this matter, and he quoted an extract from the last presidential address to show that President Grant was still willing to consider the claims of British subjects arising outside the dates of the treaty. He was told when in Washington that it was very likely a supplemental commission would be appointed to look into those claims, and he hoped the government would use what influence they had at Washington to see that the supplemental commission was honestly and really intended to deal fairly with these cases. He now came to the third class of claims to which his resolution applied—the class of British merchants who had British goods in American ships destroyed by the Alabama. In many cases we had actually paid for the loss of the American ship and the American goods on board, while the British merchant having goods on board was not paid. The number of the last class of cases was very small—he believed only three or four; but they were very important to the sufferers. One of them was that of a firm of British merchants who had shipped about £4,500 worth of grain and flour in an American vessel. Before doing so they went to the British consul and asked his advice whether it was necessary to insure against war-risks, and the consul told them it was not, as Great Britain was not at war with any power at that time; and that his indorsement of the bill of lading, with the consular seal attached, would be a sufficient protection to British goods even in an American ship. The firm took his advice, and the result was that the ship was met by the Alabama, and though the bill of lading was shown to Captain Semmes, he did not care a straw about the goods being British, but sent the ship to the bottom. Another case was that of Messrs. Hamilton & Co., of Belfast, who shipped £6,000 worth of grain in the Lafayette, which was also destroyed by the Alabama. We had paid the American owners for the ship and the American merchants for a part of the cargo, and it was only the part of the property which belonged to the Messrs. Hamilton for which compensation was not given. The question there involved was what was right in justice [Page 516] and equity rather than according to the mere letter of the law. The arbitrators having decided that we were wrong in allowing the Alabama to escape, we ought equally to pay for all the direct consequences of that wrong, whether the victims were British or American subjects. If it was said that the treaty having been made with America, we ought to pay for the losses of American subjects only, and not for those of our own subjects. He maintained that that was an unworthy view to take of our duty, and one that would hardly satisfy the national conscience. The honorable member concluded by moving:
“That in the opinion of this house it is wrong in principle that individual subjects should be left to suffer severe loss through a national wrong; and, therefore, seeing Great Britain has been adjudicated to have been in the wrong in permitting the escape of the Alabama, and has compensated American subjects for all the consequences of that wrong, British subjects who have similarly suffered from the Alabama should be similarly compensated.”
Colonel Mure, in seconding the resolution, appealed earnestly to the house to deal with that matter as a question of natural justice and equity, and not of mere law, and to treat the losses of men whose misfortunes had arisen from the laches of the officials who had permitted the Alabama to escape from this country not only in a fair but in a generous spirit.
Mr. Bourke said it was not his intention to follow the honorable member for Glasgow into his criticism either upon the Washington treaty itself or upon the conduct of the late government in not submitting that treaty to the house before its ratification. The honorable member had divided his motion very properly into three distinct branches, viz, first, the losses sustained by British subjects in the Confederate States; next, other losses of British subjects; and, lastly, losses connected with the Alabama claims. As to the losses arising in the Confederate States, they had been brought before the commission and adjudicated upon by it; and the reason why the commission did not think they came within the terms of the treaty was because the commissioners were of opinion that “the United States could not be held liable for injuries caused by the acts of rebels over which they could exercise no control, and which they had no power to prevent.” That was a judicial decision given by the commissioners, and of course it would be perfectly useless now for us to repudiate one of the most important provisions in the treaty which was carried out by the commissioners. With regard to the losses sustained by British subjects under the treaty, they were confined “to two dates—the 13th of April, when the first gun was fired from Fort Sumter, and the 9th of April, 1865, the date of the surrender of General Lee’s army. It was believed by every one that no claims Could arise that were not included within those two dates. Since the signature of the treaty, however, other claims had, no doubt, come to the knowledge of the foreign office. All these were submitted to the law-officers of the Crown, and some were submitted to the Government of the United States through the British minister at Washington. The stipulations of the treaty of Washington were not intended to cover all such claims, and it was understood that if there were other claims not included within the two dates in question, they might be brought forward at some other time. That was not only the opinion of the British law-officers, but also of those of the United States, and these claims, therefore, remained to be settled. President Grant, in a recent message, said:
“I recommend legislation to create a special court, to consist of three judges, who shall be empowered to hear and determine all claims of aliens upon the United States arising out of acts committed against their persons or property during the insurrection. The recent reference under the treaty of Washington was confined to claims of British subjects arising during the period named in the treaty; but it is understood that there are other British claims of a similar nature arising after the 9th of April, 1865, and it is known that other claims of a like nature are advanced by citizens or subjects of other powers. It is desirable to have these claims also examined and disposed of.”
Since that message had been sent a bill had been introduced into Congress establishing a court before which the claims of British subjects, as well as those of other powers, could be heard and determined. Another bill, having the same object, was also before Congress, and, if either passed, peremptory instructions had been sent to Sir E. Thornton that all claims made by British subjects outside the dates mentioned should be preferred before that court as soon as it should be constituted. Even if this court should not be established, these claims, like all claims which one civilized nation might have upon another, would remain, and it would be the duty of our diplomatic representatives to bring them under the notice of the United States Government. And he could assure the honorable member that every just and reasonable argument that could be urged in their support should be employed. As this was the first occasion on which the transaction of the business of claims made before the commission had been mentioned in that house, he trusted he should not overstep his duty if he offered his humble tribute of admiration to his right honorable friend the recorder of London for the admirable manner in which he had performed the functions intrusted to him. Hear, hear.) There might be a difference of opinion respecting the treaty, but there could be none as to the sacrifices made by his right honorable friend, or the great tact, [Page 517] patience, legal ability, experience, and authority he had displayed. (Hear, hear.) The qualities he had brought to bear were, indeed, the rarest and most eminent quailties of the judicial mind. The house would, he trust, pardon him if he availed himself of this opportunity of expressing his belief that the services of his right honorable friend were regarded with affection, gratitude, and respect by his countrymen. (Hear, hear.) He now approached the most important branch of the motion before the house, which was framed on a misconception. It was assumed that Great Britain had been adjudicated in the wrong. That was not the case. Great Britain had been adjudicated liable to pay; and why? Because she had undertaken to be judged for this purpose by three rules which had not before been in existence. Even if it were assumed, for the sake of argument, that Great Britain had been adjudicated to be in the wrong, it might be asked, “Between whom?” She had been adjudicated to be in the wrong between herself and the United States, but never between herself and her own subjects. The principle was solely applicable to international disputes, and in no sense applicable to questions arising between Great Britain and her own subjects. All such disputes must be settled by the municipal law of the country. The alleged wrong consisted in allowing a ship that was hostile and injurious to the commerce of the United States to escape from our shores. The injury complained of was an international injury, and the national wrong, if any, was committed by Great Britain against the United States. Upon what principle could Great Britain be adjudged liable to pay? As these disputes must be settled by municipal law, Great Britain could not be adjudged in the wrong between herself and her own subjects. No government was liable for the assumed negligence of its officers. If the honorable member’s motion were carried, and if a government were liable for the negligence of its own officers, any person suffering from the depredations of a pirate might claim compensation from the House of Commons. The principle might be carried a step further, and it might be alleged that, as burglaries were owing to the negligence of the police, the government might be asked to pay for every robbery and burglary committed in the country. It must also be remembered that if our own merchants were to be paid for the losses they had sustained from shipping their goods in American bottoms, we must also compensate the merchants of other nations who had suffered similar losses. They must all regret the losses of these British merchants, but he could not help remarking that those losses would not have been sustained if they had taken the ordinary precautions of business men. The honorable member for Renfrewshire gave the house to understand that the British consul at New York indorsed the bills of lading of certain merchants, and thus gave, as it were, a guarantee that their goods would not be captured. He should like, he confessed, to hear Mr. Archibald’s account of that transaction. He was one of the best men of business in either country, and he thought there must be some mistake. He could quite understand some of these merchants going to the British consul and asking him to tell them whether, if he indorsed these bills of lading, that would not show that they were the goods of British subjects. If the United States or the Confederate States had been parties to the declaration of the treaty of Paris, that a neutral flag should cover an enemy’s goods, there would have been sortie use in such an indorsement. The United States and the Confederate States had, however, never been parties to that declaration, and the war was carried on irrespective of the treaty of Paris. Considering that these gentlemen were well aware that the Alabama was at sea, and that a great many other cruisers, legitimately commissioned, were roving about the sea, and knowing also that their goods were liable to capture if they were sent to sea in American bottoms, it would have been supposed that, as men of business, they would take the obvious precaution either of insuring their goods against war-risks or of shipping them in English bottoms. He hoped he had satisfied the house that the motion of the honorable member ought not to be adopted, based, as it was, upon unsound and fallacious grounds, and pledging the house, as it did, to an unlimited, undefined, and unjustifiable expenditure of public money.
The motion was negatived without a division.