Siesracraneboccnbes Garnell Law School Library Cornell University Library JX 238.A7 1873 The Treaty of Washington:its negotiation i Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http :/Awww.archive.org/details/cu31924017526934 THE TREATY OF WASHINGTON: - ITS NEGOTIATION, EXECUTION, AND THE DISCUSSIONS RELATING THERETO. BY CALEB -CUSHING. ye NEW YORK: HARPER & BROTHERS, PUBLISHERS, FRANKLIN SQUARE. 1873. JOS 39/3 - Entered according to Act of Congress, in the year 1873, b HARPER & BROTHERS, In the Office of the Librarian of Congress, at Washingt INSCRIBED, IN TESTIMONY OF PROFOUND RESPECT, COUNT FREDERIC SCLOPIS, OF SALERANO, SENATOR OF THE KINGDOM OF ITALY. CONTENTS. PAGE CHAPTER I. INTRODUCTION... .ccsscvcseccsecuccecsseeeseeens 9 CHAPTER II. ALABAMA CLAIMS........... cece cccccese ee ceeees 15 Conduct of Great Britain toward the United States during the late OUT) Wil i is shoe ste oat Ses as Lb dee eee eeeaeen sors ereseers 15 Negotiations by Mr. Seward .,...........cceseceeecccceuceeeeneerees 17 Policy of President Grant.........cccccceeeccceesececeeeeeceseeess 18 Overtures by Great Britain.............../ Cbajsccioas 803 5 aE 8 AA OS 20 Stipulations respecting the Alabama Claims.............0000eeeeees 21 Arrangements of Arbitration............cccceccccceccueeececeueeeces 26 The American Case ........ccscssscenseccescecseeseccceeasanes dais 30 Explanation of Objections to the American Case.................-+ 33 Aeiistians respecting the National Claimisinns saws sswes scenes wens sas 34 Cause of this Agitation............ Pitt te ences eee ee et eetea tener aes 39 Discussion between the two Governments......... fesiats © aan a ean tie 42 English Misconception of American Sentiment...............00.0008 48 Attitude of the American Government ........ 0.00.0... cece tee eees 52 Action of the American Agent and Counsel............seee eee eens 55 Presentation of Counter-Cases....ssssscesseerseneees Ss seman bans OO 57 CONTENTS. PAGE Negotiations for a Supplemental Treaty. ........sseeseeneeeeereeres - 62 Presentation of Arguments for the United States.......... ais cians 66 Decision of the Arbitrators respecting National Losses...........+ 69- Seat of the Arbitration...........ccsceseeeeees seaiighedatadiebaacens G4 Count Frederic Sclopis........... sinsa ago dip oescecaiesniai ase d AONE SINTON ties 47 Myr. Steempilh jews stsss geaae omen aaennale gas satiees Goyer ore ve ones 80 Viscount of Itajubd......... ecveialans Sietuistauaesouais Guise twisting 300-2 TENS seems 8+ Sir Alexander Cockburn...........ceecceeeeeeeeeeeeeteereeeseneeee 86 Mr, Charles Francis Adams............0ecs ence cree eeee eect ec ennee 93 Secretary of the Tribunal..............0sseseeeeeeeeee ees ais eibbieewiatale 94 Agents and Coumnsel...........seee cece eee ence eeeeeeerenes ies tentisse OL Efforts of the British Government to obtain Reargument.......... 99 Rules concerning the Conferences of the Tribunal................. 106 Discussions of the Tribumal...............ccececcaeceeceeeeeeeeeece 109 - Sir Alexander Cockburn’s Call for Reargument............0eceeeee lll Case of the Florida decided...... sca wrath orate weblvatuleaiite amine a 114 Special Arguments ordered on Certain Points.................0005 117 Case of the Alabama decided ........ 0... :.cceeeeeece es eeeeeeeeeee 118 Case of the Shenandoah decided......... Tahires Wesns see RE Resse 120 The Special Arguments............ 0... cece cee e eee ceee eee eeeeaee . 121 Question, of Damagesins savin sie ssinsig seins siestae siacesia y eriaies agracns eaveaiais we 124 Final Judgment of the Tribunal............. 2. cece cece eee ee ee eee 125 Announcement of the Decision ........ 00... eee ecee eee e eee e teens 126 Conduct of the British Arbitrator ........ccccccsccucceecceeceeeece 128 CONTENTS. vii Sir Alexander Cockburn’s Reasons for Dissent .............00c0008 Ges Review of Sir Alexander Cockburn’s ‘‘Reasons”..............00005 130 Opinions of the other Arbitrators........... Suse ae erie desea wists 149 Review of the Decision of the Tribunal on National Losses....... 153 Decision as to Private Losses .............ccecccceesecceceeceecees 159 Eiblect: sO the: AWaTd os: scenes conmiinae dude gccunmasewinareeaneawore 164 Walidity: of the: Award) ween icsscwisaiss bsiciesie nasons cuiuariaivw-eregainainaieneets 167 Filibuster Objections....... sictlalalhreeae sieyenite atet apateyeered Ps snes 177 Sale of Arms not affected by the Treaty or the Award........... 180 Question of Supplies of Coal......cscscseseccesseeseenstabvsswcneas 180 What the United States have gained by the Award............... 184 CHAPTER III. MISCELLANEOUS CLAIMS.......00.000000065 187 ‘Treaty Provisl0nsoaces aces nacnussaseaadieaawaingiaaie wile vaasuiaerien 187 Private Claims on Governments .............ccecceeeeee cess ceeeeee 189 Usefulness of Mixed Commissions ........-...0.ceeeeeereeeeeeees oo 193 Other Forms of Arbitration ..........0. cece cee e seen cence eee ee eenee 195 Tendency of Reason and Justice to prevail over Force............ 197 Theory of Arbitration.............cecee cece ee eects eee eeee eee eens 200 Wisdom of the present Mixed Commission.........-+.seseeseseees 201 CHAPTER IV. THE NORTHWESTERN BOUNDARY-LINE.. 203 Provisions of the Treaty ......ceecceecceen cee cseeeen eee enneenees (208 History of the Question. .....sssecssecccececereceeeeseeseereenens 205 The Awatdsi.oceccinccewvrssees ebis ac has casesannorans scolSiie ora tatata ase hive. 221 vill CONTENTS. PAGE CHAPTER V. THE FISHERIES .......ccccesecseeeencsentenseees 226 History of the Question ..... Sele seiuislesad eae aetna 226 Provisions of the Treaty of Washington.........:+ssseseceeeeeeene 237 Probable Amount of Indemmity............c..esceeeceeseee econ eens 239 CHAPTER VI. COMMERCIAL INTERCOURSE AND TRANS- SOT TA TOL OIN sis ssacte ripe ea azasasbonda stakes deahoas aot abba edi estos este Meo 241 DE PCAGY PYOVISIONS jcisse sisings isi cinte x pas puiaictntagn aveain isis nrenaer viele ie acetainw ie 241 Relation of the British Provinces to the United States............ 247 APPENDIX.—THE TREATY OF WASHINGTON............. 257 THE DECISION AND AWARD..........0..0055 275 THE TREATY OF WASHINGTON. " CHAPTER I. INTRODUCTION. Tue Treaty or Wasuineton, whether it be regard- ed in the light of its general spirit and object, of its particular stipulations, or of its relation to the high contracting parties, constitutes one of the most nota- ble and interesting of all the great diplomatic acts of the present age. It disposes, in forty-three articles, of five different subjects of controversy between Grest Britain and the United States, two of them European or imperial, three American or colonial, and some of them of such nature as most imminently to imperil the precious peace of the two great English-speaking nations. Indeed, several of these objects of controversy are questions coeval with the national existence of the United States, and which, if lost sight of occasionally in the midst of other pre-occupations of peace or war, yet continually came to the surface again from time 10 THE TREATY OF WASHINGTON. to time to vex and disturb the good understanding of both Governments. Others of the questions, al- though of more modern date, incidents of our late Civil War, were all the more irritating, as being fresh wounds to the sensibility of the people of the United States. If, to all these considerations, be added the fact that negotiation after negotiation respecting these ques- tions had failed to ‘resolve them in a satisfactory manner, it will be readily seen how great was the diplomatic triumph achieved by the Treaty of Wash- ington. . It required peculiar inducements and agencies to accomplish this great result. Prominent among the inducements were the pacific spirit of the President of the United States and the Queen of Great Britain, and of their respective Cabi- nets, and the sincere and heartfelt desire of a great majority of the people ef both countries that no shadow of offense should be allowed any longer to linger on the face of their international relations. Great Britain, it is but just to her to say, if not con- fessedly conscious of wrong, yet, as being the party to whom wrong was imputed, did honorably and wisely make the decisive advance toward reconciliation, by consenting to dispatch five Commissioners. to Wash- ington, there, under the eye of the President, to treat with five Commissioners on behalf of the United States. Diplomatic congresses have assembled on previous occasions to terminate the. great wars of Europe, or INTRODUCTION. 11 to maintain and consolidate peace in America. And conferences, like those of Vienna, of Aix-la-Chapelle, ‘of Paris, may have embraced the representation and settled the interests of a larger number of nations; but they did not consist of higher personages, nor did they treat of larger matters than did the conference of Washington. On the part of the United States were five persons, —Hamilton Fish, Robert C. Schenck, Samuel Nelson, Ebenezer Rockwood Hoar, and George H. Williams,— eminently fit representatives of the diplomacy, the bench, the bar, and the legislature of the United States: on the part of Great Britain, Earl De Gtey and Ripon, President of the Queen’s Council ; Sir Staf- ford Northcote, ex-Minister and actual Member of the House of Commons; Sir Edward Thornton, the uni- versally respected British Minister at Washington ; Sir John Macdonald, the able and eloquent Premier of the Canadian Dominion; and, in revival of the good old time, when learning was equal to any other title of public honor, the Universities in the person of Professor Mountague Bernard. With persons of such distinction and character, it was morally impossible that the negotiation should fail: the negotiators were.dound to succeed. Their reputations, not less than the honor of their respective countries, were at stake. The circumstances involved moral coercion, more potent than physical force. The issues of peace and of war were in the hands of those ten personages. ‘They were to illustrate the eternal truth that, out of the differences of nations, competent 12 THE TREATY OF WASHINGTON. statesmen evolve peace; and that it is only by the incompetency of statesmen of one side or the other,— that is, their ignorance, their passion, their prejudice, their want of forecast, or their willfully aggressive ambition,—that the unspeakable calamities of war are ever thrust on the suffering world. Neither Mr. Fish nor Earl De Grey, nor their respective associates, could afford to take on their consciences the respon- sibility, or on their characters the shame, of the non- success on this occasion of a last effort to renovate and re-establish in perpetuity relations of cordial friendship between Great Britain and the United States. And, if they needed other impulse to right conclusion, that was given by the wise and firm direc. tion of the President, here in person, and of the Queen, here in effect through the means of daily telegraphic communication. . Happily for the peace of the two countries and for the welfare of the world, the negotiators proved equal to the emergency, in courage: as well as in statesman- ship. The Government and the people of Great Brit- ain had learned to regret sincerely the occurrence of the acts or facts which had given such deep offense; and which had done such serious injury, to the United States; and, moreover, the. Government and people of this country had come to desire, with equal sincerity, that some honorable solution of the existing difficul- ties might be found, so as to leave room for the un- obstructed action here of the prevailing natural tend- ency toward unreserved intellectual and commercial association with Great Britain. Material interests, INTRODUCTION. 13 social sentiments, incidental circumstances, all invited both nations to cordial reunion. In the face of many difficulties, the Commissioners, on the 8th of May, 1871, completed a treaty, which received the prompt approval of their respective Governments; which has passed unscathed through the severest ordeal of a temporary misunderstanding between the two Governments respecting the con- struction of some of its provisions; which has already attained the dignity of a monumental_act in.the esti- mation of mankind; and which is destined to occupy. hereafter a lofty place | in the history of the diplomacy and the international jurisprudence of Europe and America. Coming now to the analysis of this treaty, we find that Articles Ito XI. inclusive make provisions for the settlement by arbitration of the i injuries alleged to have been suffered by the United States. in conse: quence of the fitting.out, arming, or equipping, in the ports of Great Britain, of Confederate cruisers. to make war on the United States. Articles XII. to X VIL. inclusive make provision to ‘settle, by means of a mixed Commission, all claims on either side for injuries by either Government to the cit- izens of the other during the late Civil War, other than claims growing out of the acts of Confederate cruisers disposed of by the previous articles of the Treaty. Articles XVIII. to XXV. inclusive contain provi- sions for the permanent regulation of the coast fish- eries on the Atlantic shores of the United States and of the British Provinces of Quebec, Nova Scotia, and 14 “THE TREATY OF WASHINGTON. New Brunswick, and the Colony of Prince Edward's Island [including the Colony of Newfoundland by Article XXXII]. Articles XXVI. to XXXIIL inclusive provide for the reciprocal free navigation of certain rivers, includ- ing the River St. Lawrence; for the common use of certain canals in the Canadian Dominion and in the United States; for the free navigation of Lake Mich. igan; for reciprocal free transit across the territory either of the United States or of the Canadian Do- minion, as. the case may be: the whole, subject to legislative provisions: hereafter to be enacted by the several Governments. Articles XXXIV. to XLIL provide for determining by arbitration which of two different channels be- tween Vancouver's Island and the main-land consti-- tutes the true boundary-line in that region of the territories of the United States and Great Britain. Each of these five distinct classes of questions will receive separate consideration. ALABAMA CLAIMS. 15 CHAPTER II. ALABAMA CLAIMS. CONDUCT OF GREAT BRITAIN TOWARD THE UNITED STATES DURING THE LATE CIVIL WAR. Ar the conclusion of the Civil War, intense feeling of indignation against Great Britain pervaded the minds of the Government and Congress, of the United States, and of the people of those of the States which had devoted themselves to maintaining in arms the integrity of the Union against the hostile efforts of the Southern Confederation: We charged and we believed that Great Britain and her Colonies had been the arsenal, the navy-yard, and the treasury of the Confederates. We charged and we believed that Confederate cruisers, which had.depredated largely on our ship- ping eal maritime commerce, never could have taken and never held the sea, but for the partiality and gross negligence of the British Government. We charged and we believed that but for the pre- mature recognition of the belligerence of the Confed- erates by Great Britain, and the direct aid or sup-. plies which were subsequently furnished to them in British ports, the insurrection in the Southern States never would have assumed, or could not have retained, 16 THE TREATY OF WASHINGTON. those gigantic proportions, which served to render it so costly of blood and of treasure to the whole Union, and so specially disastrous to the Southern States themselves. We charged and we believed that, in all this, Great Britain, through her Government, had disregarded the obligations of neutrality imposed on her by the law of nations to such manifest degree as to have af- forded to the United States just and ample cause of war. The United States, througheall these events, with William H. Seward, as Secretary of State, and Charles Francis Adams, Minister at London, had not failed to address continual remonstrances to the British Gov- ernment, demanding reparation for. past wrong and the cessation from continuous wrong: which remon- strances did, in fact, at length awaken the British Government to greater vigilance in the discharge of its international duties, but could not induce it to take any step toward reparation so long as Earl Rus- sell [then Lord John Russell], by whose negligence or misjudgment the injuries had happened, remained in charge of the foreign affairs of the Government. That statesman, while, on more than one occasion, expressly admitting the wrong done to the United States, still persisted, with singular obtuseness or narrowness of mind, in maintaining that the honor of England would not permit her to make any reparation to the United States. _ Never, in the history of nations, has an occasion ex- isted where a powerful people, smarting under the ALABAMA CLAIMS, 17 consciousness of injury, manifested greater magnanim- ity than was displayed in that emergency by the United States. We had on the sea hundreds of ships of war or of transport; we had on land hundreds of thousands of veteran soldiers under arms; we had officers of land and sea, the combatants in a hundred battles: all this vast force of war was in a condition to be launched as a thunderbolt at any enemy; and, in the present case, the possessions of that enemy, whether conti- nental or insular, lay at our very door in tempting helplessness. But neither the Government and people of the United States, nay, nor their laurel-crowned Gener- als and Admirals, desired war as a choice, nor would accept it but as a necessity; and they elected to con- tinue to negotiate with Great Britain, and to do what no great European State has ever done under like cir- ‘cumstances,—that is, to disarm absolutely, and make thorough trial of the experiment of generous forbear- ance before having recourse to the dread extremity of vengeful hostilities against Great Britain. NEGOTIATIONS BY MR. SEWARD. The event justified our conduct. To the prejudiced and: impracticable Lord Russell, there succeeded in charge of the foreign affairs of the British Govern- ment, first, Lord Stanley [now the Earl of Derby], and then the Earl of Clarendon, who, more wise and just than he, successively entered upon negotiations with the United States on that very basis of arbitra- B 18 THE TREATY OF WASHINGTON. tion which he had so peremptorily rejected, but which Mr. Seward persisted in asserting as wise in itself and honorable to both Governments. Those negotiations failed. But the rejection by the Senate of the Clarendon-Johnson Treaty, with Mr. Sumner’s commentary thereon, if it had the ap- parent effect, at first, of widening the breach between the two countries by the irritation it produced i En- ‘gland, yet ultimately had the opposite effect by fore- ing on public attention there a more general and clearer perception of the wrong which had been done to the United States. POLICY OF PRESIDENT GRANT. At this stage of the question, President Grant came into office; and he and his advisers seem to have well judged that it sufficed for him, after giving expres- sion fully and distinctly to his own view of the questions at issue, there to pause and wait for the tranquillization of opinion in England, and the prob- able initiation of new negotiations by the British Government. It happened as the President anticipated, and with attendant circumstances of peculiar interest to the United States. During the late war between Germany and France, the condition of Europe was such as to induce the British Ministers to take into consideration the for- eign relations of Great Britain; and, as Lord Gran- ville, the British Minister of Foreign Affairs, has him- self stated in the House of Lords, they saw cause to ALABAMA CLAIMS. 19 look with solicitude on the uneasy relations of the British Government with the United States, and the inconvenience thereof in case of possible complica- tions in Europe. Thus impelled, the Government dispatched to Washington a gentleman, who enjoyed the confidence of both Cabinets, Sir John Rose, to as- certain whether overtures for re-opening negotiations would be received by the President in spirit and terms acceptable to Great Britain. It was the second time, in the present generation, that the foreign policy of England had been directed by a sense of the importance to her of maintaining good relations with the United States; for, by argu- ing from that point, France, at the opening of war with Prussia, induced the British Government to de- sist from those excessive belligerent pretensions to the prejudice of neutrals, which in former times had served to embroil her with both France and the Unit- ed States. There is another fact, which, in my opinion, power- fully contributed to induce this overture on the part of the British Government, although it was not spok- en of in this connection by Lord Granville. I allude to the President’s recommendation to Congress to ap- point a commission to audit the claims of American citizens on Great Britain growing out of the acts of Confederate cruisers, in view of having them assumed by the Government of the United States. In this in- cident there was matter of grave and serious reflection to Great Britain. On arriving at Washington, Sir John Rose found 20 THE TREATY OF WASHINGTON. the United States disposed to meet with perfect cor- respondence of goodwill the advances of the British Government. OVERTURES BY GREAT BRITAIN. Accordingly, on the 26th of January, 1871, the British Government, through Sir Edward Thornton, formally proposed to the American Government the appointment of a joint High Commission to hold its sessions at Washington, and there devise means to settle the various pending questions between the two Governments affecting the British possessions in North America. To this overture Mr. Fish replied that the President would with pleasure appoint, as invited, Commission- ers on the part of the United States, provided the de- liberations of the Commissioners should be extended to other differences,—that is to say, to include the dif- ferences growing out of incidents of the late Civil War: without which, in his opinion, the proposed Commission would fail to establish those permanent relations of sincere and substantial friendship between the two countries which he, in common with the Queen, desired to have prevail. The British Government promptly accepted this proposal for enlarging the sphere of the negotiation, with the result, as we have already seen, of the con- clusion of the Treaty of Washington. ALABAMA CLAIMS. ; 21 STIPULATIONS RESPECTING THE ALABAMA CLAIMS. The Treaty begins by describing the differences, which we are now considering, as differences “ grow- ing out of the acts committed by the several vessels, which have given rise to the claims generically known as’ the Alabama Claims ;” which, are further de- scribed as “all the said claims growing out of acts committed by the aforesaid vessels, and generically known as the Alabama Claims.” Note that the subject of difference is stated in terms of absolute, although specific, universality, as a// the claims on the part of the United States growing out of the acts of certain vessels. No exception is made of any particular claims growing out of those acts. And reference is not made to certain admitted claims by the British Government: on the contrary, it is ex- pressly declared in the Treaty that the “complaints” and “claims” of the United States, without any dis- crimination between them, “are not admitted by the British Government.” At the same time, the British Commissioners, by authority of the Queen, express, “in a friendly spirit, the regret felt by Her Majesty’s Government for the escape, under whatever circumstances, of the Alabama and other vessels from British ports, and for the dep- redations committed by those vessels.” Whereupon, “in order to remove and adjust all complaints and claims on the part of the United States, and to provide for the speedy settlement of such claims,” the contracting parties agree that all 92, THE TREATY OF WASHINGT the said claims, growing out of acts committed by the aforesaid vessels, and generically known as the A/a- bama Claims, shall be referred to a Tribunal of Ar. bitration to be composed of, five Arbitrators, appoint- ed in the following manner,—namely, one by the Pres- ident of the United States, and one by the Queen of the United Kingdom, with request to the King of Italy, the President of the Swiss Confederation, and the Emperor of Brazil, each to name an Arbitrator ; and, on the omission of either of those personages to act, then with a like request to the King of Sweden and Norway. The Treaty further provides that the Arbitrators shall meet at Geneva, in Switzerland, at the earliest convenient day after they shall have been named, and shall proceed impartially and carefully to examine and decide all questions which shall be laid before them on the part of either Government. In deciding the matters submitted to the Arbitra- tors, it is provided that they shall be governed by certain rules, which are agreed upon by the parties as rules to be taken as applicable to the case, and by such principles of international law, not inconsistent therewith, as the Arbitrators shall determine to have been applicable to the case, which rules are as. fol- lows: “ A neutral Government is bound— “First, to use due diligence to prevent the fitting out, arm- ing, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace: and also to use like diligencé to prevent the departure from its ju- ALABAMA CLAIMS. 23 risdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use. “Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men. “Thirdly, to exercise due diligence in its own ports and wa- ters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.” Great Britain, it is added in the Treaty by way of explanation, can not assent to the foregoing rules as a statement of principles of international law which were actually in force at the time when the claims in question arose; but,in order to evince her desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, she agrees that, in deciding the questions aris- ing out of such claims, the Arbitrators should assume that she had undertaken to act upon the principles set forth in these rules. And the Parties proceed to stipulate to observe these rules as between themselves in the future, and to bring them to the knowledge of other maritime Powers, and to invite the latter to accede thereto. In respect of procedure, the Treaty provides that each of the two Parties shall name one person to at- tend the Tribunal as its agent or representative ; that the written or printed case of each of the two Parties, accompanied by the documents, the official correspondence, and other evidence on which each relies, shall be delivered in duplicate to each of the 24 THE TREATY OF WASHINGTON. Arbitrators and to the agent of the other Party, as soon as may be after the organization of the Tribu- nal; that within four months after the delivery on both sides of the written or printed case, either Party may, in like manner, deliver in duplicate to each of the said Arbitrators and to the agent of the other Party a counter-case, and additional documents, cor- respondence, and evidence, in reply to the case, docu- ments, correspondence, and evidence so presented by the other Party; that it shall be the duty of the agent of each Party, within two months after the ex- piration of the time limited for the delivery of the counter-case on both sides, to deliver in duplicate to each of the said Arbitrators and to the agent of the other Party a written or printed argument showing the points and referring to the evidence upon which his Government relies. No express provision for the appointment of coun- sel appears in the Treaty; but they are recognized in the clause which declares that the Arbitrators may, if they desire further elucidation with regard to any point, require a written or printed state- ment or argument, or oral argument, by counsel upon it; but in such case the other Party shall be enti- tled to reply either orally or in writing, as the case may be. Finally, with reference to procedure, it is stipu- lated that the Tribunal shall first determine as to each vessel separately, whether Great Britain has, by any act or omission, failed to fulfill any of the duties set forth in the Treaty rules, or recognized by the ALABAMA CLAIMS. 95 principles of international law not inconsistent with such rules, and shall certify such fact as to each of the said vessels. This decision shall, if possible, be reached within three months from the close of the argument on both sides. In case the Tribunal finds that Great Britain has failed to fulfill any duty or duties as aforesaid, it may, if it think proper, proceed to award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it; and in such case the gross sum so awarded shall be paid in coin by the Government of Great Britain to the Government of the United States, at Washington, within twelve months after the date of the award. 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 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 aris- ing from such failure, as to each vessel, according to the extent of such liability as decided by the Arbi- trators. This Board to be constituted as follows: One member thereof to be named by the United States, one by Great Britain, and one by the Repre- sentative at Washington of the King of Italy. In conclusion, the Parties engage to consider the result of the proceedings of the Tribunal of Arbitra- tion and of the Board of Asséssors, should such Board be appointed, “as a full, perfect, and final set- 96 THE TREATY OF WASHINGTON. tlement of all the claims” in question; and further engage that “every such claim, whether the same may or may not have been presented to the notice of, made, preferred, or laid before the Tribunal or Board, shall, from and after the conclusion of the proceedings of the Tribunal or Board, be considered and treated as finally settled, barred, and thenceforth inadmissible.” ARRANGEMENTS OF ARBITRATION. The appointment of Arbitrators took place in due course, and with the ready good-will of the three neu- tral Governments. ‘The United States appointed Mr. Charles Francis Adams; Great Britain appointed Sir Alexander Cockburn; the King of Italy named Count Frederic Sclopis; the President of the Swiss Confed- eration, Mr. Jacob Stempfli; and the Emperor of Brazil, the Baron d’Itajuba. Mr. J. C. Bancroft Davis was appointed Agent of the United States, and Lord Tenterden of Great Britain. The Tribunal was organized for the reception of the case of each Party, and held its first conference on the 15th of December, 1871. On the motion of Mr. Adams, seconded by Sir Alexander Cockburn, it was voted that Count Sclopis, as being the Arbitrator named by the first Power mentioned in the Treaty after Great Britain and the United States, should preside over the-labors of the Tribunal. I observe in passing, as will be more distinctly seen ALABAMA CLAIMS, 27 hereafter, that the personal fitness of Count Sclopis also rendered it eminently proper that he should pre- side; for he was the senior in age of all the Arbitra- tors, of exalted social condition, and distinguished as a man of letters, a jurist, and a statesman. On the proposal of Count Sclopis, the Tribunal of Arbitration requested the Arbitrator named by the President of the Swiss Confederation to recommend some suitable person to act as the Secretary of the Tribunal. Mr. Steempfii named for this office Mr. Alexandre Favrot, and he was accordingly appointed Secretary. The printed Case of the United States, with accom- panying documents, was filed by Mr. Bancroft Davis, and the printed Case of Great Britain, with docu- ments, by Lord Tenterden. The Tribunal made regulation for the filing of the respective Counter-Cases on or before the 15th day of April next ensuing, as required by the Treaty; and for the convening of a special meeting of the Tribu- nal, if occasion should require; and then, at a second meeting, on the next day, they adjourned until the 15th of June next ensuing, subject to a prior call by the Secretary, if there should be occasion, as provided for in the proceedings at the first Conference. The record of these, and of all the subsequent Con- ferences of the Tribunal, is contained in alternate Pro- tocols, drawn up both in French and in English, veri- fied by the signatures of the President and Secretary, and of the agents of the two Governments. In these opening proceedings, that is, at the very 28 THE TREATY OF WASHINGTON. earliest moment possible, signs became visible of the singular want of discretion and good sense of the “enfant terrible,” ostentatiously protocoled “ Lord Chief Justice of England,” whom the British Govern- ment had placed on the Tribunal. The vernacular tongue of Count Sclopis was Ital- ian; that of the Baron d’Itajubé, Portuguese; and that of Mr. Stempfli, German. Count Sclopis spoke and read English, and Mr. Steempfli read it. All the Arbitrators, however, were well acquainted with French; and it was in this language that they com- municated with one another, whether in social inter- course or in the discussions of the Tribunal. Thus, we had before us a Tribunal, the members of which did not either of them make use of his own language in their common business; but met, all of them, on the neutral ground of the common diplomatic lan- guage of Europe. In this connection it was that the United States enjoyed their first advantage. Our Government did not need to wait until the organization of the Tribu- nal to know in what language its proceedings would be conducted ; and, in prevision of this fact, it ordered the American “Case” to be translated from the En- glish into French, so as to be presented simultaneous- ly in both languages at the meeting of the Tribu- nal: the exigency for which was not anticipated, or, if anticipated, was not provided for, by the Brit- ish Government. The American “Case” and documents are contain- ed in eight volumes octavo, which consist in all of ALABAMA CLAIMS. 99 5442 pages, as reduced to a common standard, that of the printing by Congress. The British “Case” and documents fill, in the re- print by Congress, three volumes octavo, consisting of 2823 pages. Perusal of the American and British Cases, and of their accompanying documents on both sides, brings us to consideration of the peculiarities in the course of argument and trial prescribed by the Treaty. In effect, the United States were the plaintiffs, and Great Britain the defendant, in a suit at law, to be tried, it is true, before a special tribunal, and deter- mined by conventional rules, but not the less a suit ‘at law for the recovery of damages in reparation of alleged injuries. In common course, the plaintiff’s counsel would open his case and put in his evidence; the defendant’s counsel would then open the defense and put in de- fensive proofs; and, after the close of the testimony on both sides, the defendant’s counsel would argue in close for the defense, and then the plaintiff’s counsel in final close for the plaintiff. Here, on the contrary, the defendant’s opening argu- ment and defensive proofs went in at the same time as the plaintiff’s opening argument and proofs, each under the name of the “Case” of the respective Party. The British Case, of course, could not answer the American Case, save by conjecture and anticipation founded on common knowledge of the subject-matter. The respective Counter-Cases of the Parties were to go in together, in like manner, in April, and their 380 THE TREATY OF WASHINGTON. respective Arguments in June: so that the Counter- Cases would on each side be response to the prévious Cases, and the Arguments to the previous Counter- Cases. This course of presentation was in no sort prejudi- cial to the United States, as plaintiffs, and was exceed- ingly advantageous to Great Britain, as defendant. THE AMERICAN CASE. Nevertheless, when our “Case” went in,—that is to say, the opening argument for the United States,—its true character as such was misapprehended in En- gland, where it seemed to be forgotten that the time and place for replying to it were in the British Coun- ter-Case, and not in the newspapers of London or in the British Parliament. Similar misconception occurred subsequently with regard to the American Argument; the Counsel for Great Britain thinking that he ought to have the op- portunity of replying, as will be explained hereafter, and losing sight of the fact that the British Govern- ment had already argued the matter three times in “ Case,” “ Counter-Case,” and “ Argument.” As to the American Case, it seemed to fall into the adversary’s camp like a bomb-shell, which rendered every body dumb for a month, and then produced an explosion of clamor, which did not cease for three or four months, and until the final decision of the Tribunal of Arbitration. The leading journals of England, whether daily or weekly, such as the London Times, Telegraph, and ALABAMA CLAIMS. 81 News, the Saturday Review, the Spectator, the Pall Mall Gazette, the Manchester Guardian, and other British journals generally, are certainly conducted with great ability, and are second, in character and in value, to no others in Europe. In view of which it must be confessed that the outery which they made against the American Case seemed to me at the time to be altogether unworthy of them and of England. It was my opinion on reading the American Case for the first time, and is my opinion now, after re- peated readings, that it is not only a document of signal ability, learning, and forensic force,—which, in- deed, every body admits,—but that it is also temper- ate in language and dignified in spirit, as becomes any state paper which is issued in the name of the United States. I do not mean to say that it is so cold a document as the British Case. Warmth or coldness of color is a matter of taste, in respect of which the United States have no call to criticise Great Britain, and Great Brit- ain has no right to criticise the United-States. We may presume that, in the exercise of its un- questionable right, the Government of the United States made up its Case in the aim of convincing the Arbitrators, and not with any dominant purpose or special expectation of pleasing Great Britain. But there is no just cause of exception to the gen- eral tenor, spirit, or style of the American Case. Its facts are pertinent ; its reasonings are cogent ; its con- clusions are logical: and in all that is the true ex- planation of the emotion it occasioned in England. 82 THE TREATY OF WASHINGTON. Intelligent people there, on reading the American Case, then opened their eyes universally to the fact that Great Britain was about to be tried before a high court constituted by three neutral Goyernments. That was not an agreeable subject of reflection. In- telligent Englishmen also, on reading the American Case, began to be uneasily conscious of the strength of the cause of the United States. And that was not an agreeable subject of reflection. For a good cause, in a good court, seemed likely to result in a great in- ternational judgment adverse to England. The specific objections preferred were quite futile. Thus, complaint was made because the Case charged the British Ministers with unfriendliness to the United States for a certain period of the Civil War. But the charge was proved by citing the declarations of those Ministers; it was not, and could not be de- nied by any candid Englishman; it is admitted by Sir Alexander Cockburn in the dissenting opinion which he filed at the close of the Arbitration. And the charge was pertinent, because it explained the negligent acts of subordinate British authorities, as at Liverpool or Nassau: which acts could not be otherwise explained unless by suggesting a worse imputation, namely, that of hostile insincerity on the part of the Ministers. If there be any person at the present day, who is inclined to call in quéstion the truth of the foregoing remarks, he is earnestly entreated to read the Amer- ican Case now, in the light of the adjudged guilt of the British Government, and he will then see ample’ ALABAMA CLAIMS. 33 cause to approve the reason, the dignity, and the tem- per of that Case. EXPLANATION OF OBJECTIONS TO THE AMERICAN CASE. The truth undoubtedly is, that discontent with the Treaty itself had much to do in England with objec- tions to the “Case.” The British Ministers had ne- gotiated the Treaty in perfect good faith, and in well- founded conviction of its wisdom, of the justice of its provisions, and of its not conflicting with the honor either of Great Britain or of the United States. Par. liament had accepted the Treaty without serious op- position, and with but little debate, except on the very trivial party question whether it was more or less favorable to Great Britain than the conventions negotiated by Lord Stanley and the Earl of Claren- don. And Great Britain, as a nation, had, beyond all peradventure, heartily approved and welcomed the conclusion of the Treaty. But, on reading the American Case, and reflecting on the constitution -of the proposed Tribunal, many Englishmen yielded to a sentiment of undue estimate of English law and English lawyers, as distinguished from the laws and the lawyers of Continental Europe and of Spanish and Portuguese America, England has good reason to be proud of her legal institutions and. of her jurists, and, of late years, she has learned to regard the common law with some abatement of that fetichism of devotion which was taught by Coke and by Fortescue. But the statesmen appointed by the three neutral Governments to act as Arbitrators C 84 THE TREATY OF WASHINGTON. at Geneva, and who, it was clearly seen, would be the effective judges in the cause, were not likely to share the English opinion of the common law of England. And these three Arbitrators were persons outside of the range of the observation, knowledge, or apprecia- tion of most Englishmen, who felt undefined distrust of men whom they did not and could not know as, they knew Englishmen and Americans. Nay, En- glishmen were heard to say, in conversation, that they would prefer a tribunal made up of Englishmen and Americans. We shall fully comprehend how strong this sentiment was among average Englishmen, when we remember that expression was given to it in the House of Lords by the Marquess of Salisbury, who, notwithstanding his high intelligence, and the cos- mopolitan experience which men of his rank possess, could characterize as wnknown, and, therefore, as ob- jectionable, an actual Embassador in France, an ex- President of Switzerland, and a Senator and ex-Min- ister of Italy with fame as a jurist and historian per- vading Europe. It was a sentiment which Sir Alex- ander Cockburn betrayed in his deportment and language at several meetings of the Tribunal. These, however, were but the transitory incidents of popular emotion and public discussion, and of sec- ondary significance. AGITATION RESPECTING THE NATIONAL CLAIMS. But the agitation which soon followed, on the sub- ject of certain of the claims-set forth in the Case of the United States, arose at once to national impor: ALABAMA CLAIMS, 85 tance. I allude, of course, to what was frequently spoken of as the question of “indirect claims.” The expression is incorrect, and, if admissible as a popular designation, it must not be permitted to pro- duce any misconception of the true question at issue. It would be less inaccurate to speak of them as “claims for indirect or constructive losses or damages,” which is the more common phrase in the diplomatic papers; and less inaccurate still to say “remote or consequen- tial losses and damages.” But, in truth, none of these expressions are correct, and the use of them has done. much to obscure the actual point of controversy, and to divert the public mind into devious paths of argu- ment or conclusion. When, in the instructions to Mr. Motley of Septem- ber 25th, 1869, President Grant caused the British Government to be informed, through the Secretary of State, of the nature of the grievances of the United States, he employed the following language: “The President is not yet prepared to pronounce on the question of the indemnities which he thinks due by Great Britain to individual citizens of the United States for the de- struction of their property by rebel cruisers fitted out in the ports of Great Britain. “Nor is he now prepared to speak of the reparation which, he thinks due by the British Government for the larger ac- count of the vast national injuries it has inflicted on the United States. “Nor does he attempt now to measure the relative effect of the various causes of injury, whether by untimely recognition of belligerency, by suffering the fitting out of rebel cruisers, or by the supply of ships, arms, and munitions of war to the Con- federates, or otherwise, in whatsoever manner. 36 THE TREATY OF WASHINGTON. “Nor does it fall within the scope of this dispatch to discuss the important changes in the rules of public law, the desirable. ness of which has been demonstrated by the incidents of the last few years, now under consideration, and which, in view of the maritime prominence of Great Britain and the United States, it would befit them to mature and propose to the other States of Christendom. “All these are subjects of future consideration, which, when the time for action shall arrive, the President will consider with sincere and earnest desire that all differences between the two nations may be adjusted amicably and compatibly with the honor of each, and to the promotion of future concord between them; to which end he will spare no effort within the ‘range of his supreme duty to the right and interests of the United States.” The British Government was in this way distinctly notified that, in addition to the question of indemni- ties to individual citizens for the destruction of their property, the United States were entitled to repara- tion “for the larger account of the vast national in- juries” inflicted on them as a Government. That the British Government so understood the matter is proved by the tenor of the elaborate respon- sive paper, styled “ Observations,” appended to Lord Clarendon’s dispatch to Sir Edward Thornton of the ensuing November; and our national claims are spe- cifically commented on in those “ Observations.” It is immaterial how these national losses came afterward to be designated by the title of construct: ive or indirect; yet such is the fact. Now, it is perfectly clear that national claims are not claims for indirect or constructive loss, any more than individual claims are. In fact, throughout the ALABAMA CLAIMS. 87 legal discussions before the Tribunal, the British Gov: ernment steadily maintained that all the claims of in- dividual citizens for the destruction of their vessels by Confederate cruisérs were in the nature of con- structive, indirect, remote, and consequential injuries or losses, and, therefore, not recoverable in law, either by the rules of the common law of England or of the civil law as practiced on the Continent. Nothing could more clearly show the inapplicability and equivocation of the phrase “indirect” claims or losses to designate any of the contents of the Treaty of Washington. Manifestly, while private losses are supposable which may be direct to individual citizens, national losses are supposable which may be direct to the na- tion. On the other hand, private losses are supposa- ble as well as national, which any jurist or any court would pronounce to be indirect, remote, or consequen- tial in their nature. All the discussion on this question asserts or ad- mits impliedly that the capture of a private mer- chant’s vessel by a Confederate cruiser inflicted direct loss or damage on the citizen-proprietor. Was not the loss or damage occasioned by the capture of a Government vessel equally a case of direct loss to the Government? Most assuredly. Pursue the inquiry one step further. If, in a war carried on by land between two States, one of them invades the other and devastates the territory there- of, is not that a case of direct injury to the invaded State? If the hostilities in question be purely mart- 38 THE TREATY OF WASHINGTON. time, as in the example of the imperfect or guas? war between the United States and France in the closing years of the last century, can it be denied that the injuries done to either nation*by such hostilities on the se@ involve direct national as well as private injuries 2 On first impression, therefore, it might seem that the British Government and British opinion ran wild in the chase of shadows, and combated a creature of mere imagination in quarreling with this part of the American Case at all, and, still more, in contending that on this account Great Britaih could be justified in revoking the arbitration agreed upon,—that is, in effect, violating the Treaty. The Treaty referred to the Tribunal of Arbitration, in terms unequivocal, all claims of the United States growing out of the acts committed by certain vessels, and generically known as “Alabama Claims.” It might need to go outside of the Treaty into antece- dent or contemporaneous diplomatic correspondence in order to ascertain the meaning of the phrase “_Ala- bama Claims;” but, in so doing, it would incontro- vertibly appear, at every stage of such correspond- ence, that national as well as individual claims were comprehended, and were all confounded together, and, indeed, without mention of individual claims, in the designation of “claims on the part of the United States.” "Whether any of the claims so preferred on the part of the United States were for losses indirect or conse- quential would be an ordinary question of jurispru- ALABAMA CLAIMS. 39 dence, for the decision of the Tribunal of Arbitration, and could not be a question affecting the integrity or force of the Treaty. No expression or even intimation of the question of “ direct or indirect” appears on the face of the‘Treaty. And, in the long diplomatic correspondence which. ensued on this subject, it was conclusively demon- strated by Mr. Fish, and was, in effect, admitted by Lord Granville, that no agreement, promise, or under- standing existed on the part of the Commissioners to qualify the clear and explicit language of the Treaty. CAUSE O¥ THIS AGITATION. Hence we might well infer or believe that the su- perficial or apparent question, which so agitated peo- ple of high intelligence and practical sense like the English, was not the real or true one. It was not. And, in order to understand the causes of the storm of discussion which broke over England when the tenor of the American Case came to be fully appre- hended there, and of the real consternation which seemed to prevail on the subject, it is necessary fo take into consideration certain facts wholly independ- ent of the American Case and the Treaty. On occasion of the rejection by the United States of the Johnson-Clarendon Treaty, with Mr. Sumner’s speech as a commentary on that act, England came distinctly to comprehend, what she had been fre- quently told before but would not believe, that the United States attributed the prolongation of our Civ- il War largely to her premature recognition of the 40 THE TREATY OF WASHINGTON. belligerence of the Confederates, and to the conse- quent facility of the latter to obtain supplies; and also, though less so, yet in an appreciable degree, to the naval warfare which the Confederates carried on against us from the basis of operations of the ports of Great Britain. Careful perusal of the instructions to Mr. Motley would have shown that the President of the United States, while persisting to claim reparation for all in- juries done by Confederate cruisers, whether to indi- viduals or to the nation, did not insist on the recog- nition of belligerence as a continuing subject of claim of Great Britain. Conscious of this distinction, while the American Commissioners would not relinquish claim on account of any thing done by Confederate cruisers, the British Commissioners were content with stipulations of in- demnity, which covered all national claims of the last category, but did not reach back to claims on account of the unreasonableness and prematurity of the proc- lamation of the Queen. That is what is meant by Mr. Bernard in his lect- ure at Oxford, where he speaks of the specific char- acter of the stipulations: they were specific, confined to acts of the Confederate cruisers. And the point is clearly evolved in the debate in the House of Lords on occasion of the presentation of the Treaty, when Lord Russell objected that it was no better for Great Britain than the Johnson-Clarendon Treaty, and Lord Granville replied that it was better, because, while it includes claims on account of acts of cruisers, it does ALABAMA CLAIMS. 41 not include claims on account of the Queen’s proclama- tion recognizing the belligerence of the Confederates, Nevertheless, when, in England, the argument of the American Case had been read and pondered,— when it was perceived that this argument impiited to Great Britain constructive complicity with the Con- federates by reason of the culpable negligence of the British Government to arrest the enterprises of such vessels as the Alabama, the Llorida, and the Shenan- doah,—and, finally, when it was thus understood that, in preferring claim for all the loss or injury growing out of the acts of those cruisers, whether to the Gov- ernment or to private citizens, the United States did, in express terms as well as in legal intendment, hold the British Government responsible for prolongation of our Civil War and the cost of its prosecution,— when all these relations of the subject came to be un- derstood, the public mind in England, and especially the commercial mind, recurred at once to the event which constituted at the time the dominant pre-occu- pation of Europe, namely, the war indemnity of six milliards so recently imposed by Germany.on France. In view of this, a panic terror seemed to seize upon London, similar to what occasionally occurs in New York and other great money centres, producing a state of demonstrative emotion, which, to calm ob- servers outside of such centres, looks like the spas- modic agitation of men who have lost their senses, rather than intelligent human action. Such, indeed, is all panic terror, as exemplified by numerous his- torical incidents of the contagious influence, both in 49 THE TREATY OF WASHINGTON. peace and war, of the most trivial causes and the most absurd illusions. On the present occasion, London appears to have been shaken and tossed by the intense fear of Great Britain being in turn called upon to pay some indefi- nite milliards of war indemnity to the United States. DISCUSSION BETWEEN THE TWO GOVERNMENTS. The British Government was very slow to take this infection of popular fear and commotion. The American Case was duly filed on the 15th of Decem- ber. Many copies of it were in the hands of the British Ministers in a few days thereafter. We do not hear of any particular disturbance of mind on the part of the Ministers until the beginning of Feb- ruary, that is, the lapse of six or seven weeks, when the American Minister, General Schenck, telegraphed to Mr. Fish as follows: “London journals all demand that the United States shall withdraw claims for in- direct damages, as not within intention of treaty. Ministry alarmed.” 'To which Mr. Fish responded by telegraph as follows: “There must be no with- drawal of any part of the claim presented. Counsel will argue the case as prepared, unless they show to this Government reasons for a change. The alarm you speak of does not reach us. We are perfectly calm and content to await the award, and do not an- ticipate repudiation of the Treaty by the other side.” And in these two telegrams we have the history of the whole interval of time prior to the next meeting of. the Tribunal. Newspapers in England lashed ALABAMA CLAIMS. 43 themselves into a “fine frenzy.” Ministers and the Parliament, instead of manfully taking a stand at the outset in opposition to the popular current of delu- sion and passion, got alarmed and lost their heads, and said and did some things not creditable to the British Government. In the United States, on the other hand, sundry persons were officiously over-zeal- ous on the wrong side; the newspaper press was a little flustered; and some things were written and published which it would have been better not to write and publish; but the public mind maintained its equilibrium, content, on the whole, to await the progress of the arbitration: while the President, the Secretary of State, with his colleagues of the Cabinet, and the Congress, remained “perfectly calm,” stand- ing always on the stipulations of the Treaty, and never believing it would be broken or disregarded by Great Britain. In my opinion, the contrast at this time between the attitude of the British Government and that of the American Government deserves a few words of commentary. It is not uncommon in England to suppose and to say that demagogy, that is, factious appeal to popular prejudice and passion, is a conspicuous feature of political action in the United States. It seems to be supposed also that demagogy here pleases itself especially with accusations of Great Britain. Mean- while, it is complacently assumed that self-possession and stability, with unexceptional amiability toward the United States, characterize political action in 44 THE TREATY OF WASHINGTON. Great Britain. I think the absolute reverse of all this is the truth. In Great Britain the political institutions of the country are indefinite, unwritten, unfixed, without a positive stand-point any where, shifting from day to day; consisting, in form, of Kings, Lords, and Com. mons, without any visible lines of limitation between them, and resolved to-day into an omnipotent Parlia- ment, one branch of which, the House of Commons, arrogates to itself the character of a constituent na- tional convention to impose on King and Lords any change in the national institutions it sees fit, and as- suming to itself the function, by means of a guasé committee of its body, to control absolutely the ad- ministration, both foreign and domestic, of Great Britain. This quasi committee of the House of Commons, to be sure, has associated with it another guas? com- mittee of the House of Lords: which, all together, formerly called Ministers of the Crown, now take to themselves, in the very text of treaties as well as in domestic affairs, the revolutionary title of the “ Brit- ish Government.” But, while the theoretical power of the Crown is nominally exercised by a joint committee of both Houses of Parliament, it is vested, in fact, in the com- mittee of the House of Commons, which, upon all oc- casions, whether of ordinary administrative matters or of the frequently recurring radical changes in the political institutions of the country, constantly and loudly defies and overbears the House of Lords. ALABAMA CLAIMS. AD5 If any simple-minded person in the United States happens to cherish those romantic illusions respect- ing the constitution of England which he may have acquired from perusal of the Commentaries of Sir William Blackstone, he has but to turn over the leaves of some volume of Hansard’s Debates in Par- liament, or peruse authoritative disquisitions on the subject, like those of May and of Bagehot, to discover that, in knowledge and reading at least, he has not yet emerged from the mythical epoch of the political history of England. Now, the submergence of the power of the Crown in Parliament, and of that of Parliament in the House of Commons, and the commitment of all these powers to transitory nominees of the House of Commons, are facts which, combined, have produced the result that government in England is at the mercy of every gust of popular passion, every storm of misdirected public opinion, every devious impulse of demagogic agita- tion,—nothing correspondent to which exists in the United States. Mr. Gladstone is Prime Minister of Great Britain, —that is to say, of three hundred millions of men, ag- gregated into various States of Europe, Africa, Amer- ica, Asia, and Australasia. But he holds all this pow- er at the mere will of a majority of the House of Com- mons. He must consult their wishes and their prej- udices in every act of his political life. If he con- ceives a great idea, he can not make any thing of it until after he shall have driven it into the heads of three or four hundred country gentlemen, which are 46 THE TREATY OF WASHINGTON. not always easily perforable either by eloquen¢e or by reason. And during the progress of all great measures, including especially foreign negotiations, which require to be left undisturbed in their prog- ress from germination to maturity, he is subject to be goaded almost to madness every day by vicious in- terpellations, not only on the part of members of the Opposition, but even his own supporters in the House of Commons. How different is the spectacle of government in the United States! Here, the President,—that is, the Prime Minister of the sovereign people,—is placed in power for a fixed period of time, during which he is politically independent of faction, and can look at the temporary passions of the hour with calmness, so as to judge them at their tfue value, and accept or reject their voice according to the dictates of public duty and the command of his conscience. Neither he nor any of the members of his Cabinet are subject to be badgered by factious or unreasonable personal inter- rogation in either house of Congress. Moreover, the House of Representatives does not presume to set itself up as the superior either of the President or of the Senate. Nor is the Senate in the condition of being terrified from the discharge of its duty by threats on the part of the President or of the House of Representatives to subjugate its free will at any moment by thrusting into it a batch of twenty. new administration Senators. Least of all does the House of Representatives presume to possess and ex- ercise the powers of a constituent national convention, ALABAMA CLAIMS. AT to change in its discretion the constitution of the United States. Thus it was that, in the matter of the discussion of this Treaty, Mr. Gladstone and the other Ministers were tossed to and fro on the surging waves of pub- lic Opinion, and pestered from day to day in Parlia- ment, while solicitously engaged in reflecting how best to keep faith with the United States and at the same time do no prejudice to Great Britain. If, at that period, the Ministers said in debate any thing unwise, any thing not strictly true or just,—Mr. Glad- stone did, but Lord Granville did not,—let it not be remembered against them personally, but charged to the uncontrollable difficulties of their position, and the signal defectiveness and intrinsic weakness of the or- ganic institutions of Great Britain. During all that period of earnest discussion on both sides of the ocean, it was to me, as an American, matter of the highest thankfulness and gratulation and’ patriotic pride, to see the Government of the United States,—President, Secretary of State, Cabinet, Congress,—continue in the even tenor of their public duty, calm, unrufiled, self:possessed, as the stars in heaven. The Executive of the United States is, it is true, by its very nature, a thoughtful and self-con- tained power. Congress, on the other hand, is the field of debate and the place where popular passions come into evidence, as the winds in the cave of Aolus. But, on this occasion, no more debate occurred in either House than that least possible expression of opinion, which was necessary to show accord with the 48 THE TREATY OF WASHINGTON. Executive. Even the Opposition, to its honor be it said, conducted itself with commendable reserve and consideration. How different from all this was the spectacle exhibited by the British Parliament! ENGLISH MISCONCEPTION OF AMERICAN SENTIMENT. I contradict, with equal positiveness, the suggestion that demagogic agitation in the United States feeds itself largely on alleged hatred of Great Britain. I think topics of international reproach are more com- mon in England than here.’ The steady current of emigration from England, Scotland, and Ireland to the United States, and especially at the present time from England, is not a grateful subject of contempla- tion in Great Britain. England perceives, but not with perfect contentedness, that the British race in America bids fair soon to exceed in numbers and in power the British race in Europe. And, above all, the gradually increasing force of those factions or parties in Great Britain, which demand progressive enlargement of the basis of suffrage, equal distribu- tion of representation, vote by ballot, the separation of Church and State, subdivision of the great prop- erties in land, cessation of hereditary judicial and po- litical power, intellectual and social elevation of the disinherited classes,—I say such parties or factions, in appealing to the institutions of the United States as a model, provoke criticism of those institutions on the part of the existing depositaries of property and polit: ical power. Owing to these, and other causes which might be indicated, it seems to me that the United ALABAMA CLAIMS. 49 States encounter more criticism in Great Britain than Great Britain does in the United States. Moreover, it should be borne in mind that much of the inculpation of Great Britain which is perceived in the United States proceeds from British immigrants,— largely Irish, but in part Scottish and English,—who, like other Europeans, are but too prone to come here with all their native political prejudices clinging to them; who not seldom hate the Government of their native land; and who, of course, need time to cease to be Europeans in spirit and to become simply Amer- icans. And it would not be without interest in this relation to see how many of such persons, in the news- paper press or elsewhere, say or do things tending to cause it to be supposed that opinion in the United States is hostile to Great Britain. There is one other class of facts which it is proper to state in this relation, and particularly proper for me to state. The successful revolution of the thirteen Colonies was an event most unacceptable, of course, to England. We, the victors in that contest, should not murmur if resentful memories thereof lingered for some time in the breasts of the defeated party. I think, however, such feelings have ceased to manifest themselves in England. It is to quite other causes, in my opinion, that we are to attribute the successive controversies between the two countries, in which, as it seems to me, the greater wrong has in each case been on the side of England. I think we did not afford her suffi- cient cause of complaint for continuing in hostile oc- D 50 THE TREATY OF WASHINGTON. cupation of the Northwestern Territory for so many years after we had made peace. I think she was wrong in issuing the notorious Orders in Council, and in the visitation of our ships and impressment of our seamen, which morally constrained us, after exhaust- ing all other means of redress, to have recourse to war. I think she was wrong in contending that that war extinguished the rights of coast fishery assured to us by the Treaty of Independence. I think she was wrong in the controversy on the subject of colo- nial trade, which attained so much prominence during the Presidency of John Quincy Adams. I think she was wrong in attempting to set up the fictitious Mos. quito Kingdom in Central America. I think she was wrong in the so-called San Juan Question. And so of other subjects of difference between the two Gov. ernments. Now, it has happened to me, in the course of a long public life, to be called on to deal officially, either in Congress, in the Cabinet, or at the Bar, with many of these points of controversy between the two Govern- ments, of which it suffices to mention for example three, namely: 1, the Question of British Enlistments; 2, the Hudson’s Bay Company; and 3, the Alabama Claims. In regard to the first of these questions, the United States, and the persons who administered the Govern- ment, were so clearly right that, although the British Government, in its Case, improvidently brought into controversy at.Geneva, by way of counter-accusation, the general conduct of the United States during the ALABAMA CLAIMS. 51 war between Great Britain and Russia, and although we replied by charging in response that the only vio- lations of neutrality committed in the United States during that war were committed by Great Britain herself, yet in the subsequent discussions not a word of self-justification on this point was preferred by the British Government. In regard to the second of the questions, a member of Parliament [ Mr. Hughes], in ignorance of the facts, it is to be presumed, undertook to impugn the con- duct of the Counsel of the United States, and to draw inferences therefrom prejudicial to the conduct of the United States in the Arbitration at Geneva. In re- sponse to this complaint, it suffices to say that, on oc- casion of a settlement of the claims of the Hudson’s Bay Company and of its shadow, the Puget’s Sound Agricultural Company, by mixed commission, under the treaty of July, 1863, it devolved on me, in behalf of the United States, to assert, and to prove to the satisfaction of the Commission, that the pretensions of the Hudson’s Bay Company were scandalously un- just, and founded on premises of exaggeration and usurpation injurious té Great Britain and to the Ca- nadian Dominion, as well as to the United States. I have no reason to regret or qualify any thing said or done by me in that affair. As to the third of these questions, namely, the A/a- bama Claims, it seems difficult to comprehend how persistent demand of redress. on the part of the United States can be complained of by any candid English- man now, when the judgment of the Tribunal of Ar: 52 THE TREATY OF WASHINGTON. bitration establishes the fact of the long denial of jus- tice by Great Britain in this behalf,—a fact admitted also by so prejudiced a person as Sir Alexander Cock. burn, who speaks as [“in some sense” at least] “the representative of Great Britain.” I confidently maintain, therefore, that neither the British Government nor the people of Great Britain had any just cause, in the course of these transactions, to find fault with the spirit, temper, or language either of the Government or the Agent or Counsel of the United States. To the contrary of this, it seems to me that on our side alone is the good cause of com- plaint in these respects. ATTITUDE OF THE AMERICAN GOVERNMENT. As respects the deportment of the two Governments in this crisis, certain it is that the conduct of that of Great Britain, in resting upon the American Case for nearly seven weeks, and then abruptly breaking out, in the Queen’s speech from the throne and in debate in Parliament, with objections to that Case, without previous statement thereof in diplomatic communica: tion, was uncourteous toward the United States. The diplomatic discussion which ensued, beginning with Lord Granville’s note of February 3, 1872, and terminating with the dispatch of Mr. Fish of April 16, 1872, may now be read, not with composure only, but with supreme satisfaction, by any citizen of the United States. The Secretary of State [Mr. Fish] demon- strates to conviction the utter baselessness of the pre- tension of the British Government that the so-called ALABAMA CLAIMS. 53 indirect claims were not within the letter or spirit of the Treaty of Washington. And he repels through- out, peremptorily but dispassionately, the call of the British Government on the United States to withdraw this class of claims from the consideration of the Tri- bunal. In fine, the position of the United States is plainly expressed in different parts of the dispatches of Mr. Fish, as follows: “They [the United States] desire to maintain the jurisdiction of the Tribunal of Arbitration over all the unsettled claims, in order that, being judicially decided, and the questions of law involved therein being adjudicated, all questions connected with or arising out of the Alabama Claims, or ‘ growing out of the acts’ of the crnisers, may be forever removed from the pos- sibility of disturbing the perfect harmony of relations between the two countries... . “ What the rights, duties, and true interests of both the con- tending nations, and of all nations, demand shall be the extent, and the measure of liability and damages under the Treaty, is a matter for the supreme determination of the Tribunal estab- lished thereby. “Should that august Tribunal decide that a State is not lia- ble for the indirect or consequential results of an accidental or unintentional violation of its neutral obligations, the United States will unhesitatingly accept the decision. “Should it, on the other hand, decide that Great Britain is liable to this Government for such consequential results, they have that full faith in British observance of its engagements to expect a compliance with the judgment of the Tribunal, which a solemn Treaty between the two Powers has created in order to remove and adjust all complaints and claims on the part of the United States.” The American Government could not avoid feeling that the public discussion, which the British Minis- ters had seen fit to excite, or, at any rate, to aggravate, 54 THE TREATY OF WASHINGTON. and “the discourteous tone and minatory intimations of the Ministry,” imposed on the United States a dif ferent line of action from that, which might have been adopted by them in response to a calm presentation by the British Government of its construction of the Treaty. In this relation there is another class of facts which, as it seems to me, deserves mention. Of the five American Commissioners engaged in the negotiation of the Treaty of Washington, two, the Secretary of State [Mr. Fish] and our Minister at London [General Schenck], were officially occu- pied in discussing the question on the American Case raised by the British Government. The published dispatches show with what signal ability they dis- charged this delicate duty. Meanwhile, the three other Commissioners, Mr. Justice Nelson, Mr. Hoar, and Mr. Williams, although impliedly accused on the other side of taking some advantage of the unsophis- ticated innocence and simplicity of the British Com- missioners, yet maintained perfect self-control in the matter, speaking only when officially called upon to speak, and otherwise leaving the subject where it be- longed,—in the hands of their Government. | The conduct, on the other hand, of some of the British Commissioners was less reserved than that of the American Commissioners. Professor Bernard got completely off the track of reason and sense in a lect- ure which he delivered at Oxford. Sir Stafford Northcote let off a very inconsiderate speech at Ex- eter. And Sir Edward Thornton made a not very ALABAMA CLAIMS. Bb considerate one at New York. But Earl de Grey and Ripon, who had now become Marquess of Ripon, deported himself with admirable dignity. It was, in- deed, wittily said, or reported to have been said, by Mr. Lows, that Lard Ripon was going about very stele at the stomach of a marquisate, which he would be glad to throw up; but the reproach was wholly un- deserved. Lord Ripon manfully maintained silence while to speak would have been unwise; when at length it became expedient to speak, he did so with discretion and with judiciousness, beyond what ap- peared in the speeches of some other members of the Government. ACTION OF THE AMERICAN AGENT AND COUNSEL. Whilst all these discussions were going on in Great Britain and the United States, we, the Agent and Counsel of the United States, were busily occupied, partly at Washington but chiefly at Paris, in the study of the British Case and the preparation of the American Counter-Case. We had fixed on Paris for our head-quarters, as a neutral city, as a great centre of international jurisprudence and diplomacy, and as a place in easy communication with London and with Washington. From | this ground of vantage we could observe and estimate correctly the current of discussion in America, in Great Britain, and on the Continent of Europe. Speaking for myself, at least, let me say, it appear- ed to me that much of what was being said in En- 56 THE TREATY OF WASHINGTON. gland, whether in Parliament or in the Press, was un- seasonable or indiscreet; much of it factious toward. the British Government itself; much of it disrespect- ful to the American Government; but none of it of any ultimate importance or consequence in regard to either Government, for the following reasons: 1. Both Governments sincerely desired peace. Great Britain could never have retreated from the Arbitra- tion in violation of the Treaty, whatever the Press might say, and whoever should be in.power as Min- ister. 2. Freedom of debate is essential to freedom of in- stitutions. To be sure, the Press in Great Britain, and somewhat, but less so, in the United States, is prone to take upon itself rather lofty airs, and to speak of public affairs quite absolutely, as if it were the Government. But nobody is deceived by this, not even the Press itself. We, the English-speaking nations, thank heaven, possess the capability of living in the atmosphere of oral and written debate. It was safe to predict that howmuchsoever Mr. Gladstone and Lord Granville might feel annoyed by the din of words around them, it would not induce them to break faith with the United States. 3. It was not the voice of the English. Press which could seriously affect us. We looked rather to the state of opinion in the French, German, and Italian speaking countries of Europe, which, on the whole, though differing as to the legal right of the United States to recover on the national claims, yet decisive- ly agreed with us in affirming that those claims were ALABAMA CLAIMS. 57 comprehended within the scope of the Treaty as main- tained by the United States. What Europe dreaded, what all European opinion sought to prevent, was a rupture between Great Brit- ain and the United States, to disturb the money- market of Europe, and impede the payment by France of the indemnity due to Germany. And all men saw that the United States must and would resent the refusal by Great.Britain to observe the stipulations of the Treaty of Washington. PRESENTATION OF COUNTER-CASES. Such were the circumstances, in the presence of which arrived the time, namely, the 15th of April, at which the two Governments were to file at Geneva their respective Counter-Cases. The British Government was so solicitous to fulfill on its part all the stipulations of the Treaty, that it caused special inquiry to be made whether the Amer- ican Government had any objection to Great Brit- ain filing her Counter-Case without prejudice to her position regarding consequential damages; to which Mr. Fish replied that the British Government was bound to file its Counter-Case, but its doing so would not prejudice any position it had taken, nor affect any position of the United States. Accordingly, on the 15th of April, the Counter- Cases of Great Britain and the United States were duly filed, with express reservation of all the rights of both Governments. The British Counter-Case, consisting of four vol- 58 THE TREATY OF WASHINGTON. umes folio, contains little new matter, being in part, at least, defensive argument in response to the Amer- ican “Case.” The American Counter-Case, consisting of two volumes folio, replies argumentatively to the British “Case,” and brings forward a large body of docu- mentary proofs, responsive to matters contained in that “Case,” which, although utterly foreign to the question at issue, required to be met, because con- sidered material by Great Britain, namely, allegations of default on the part of the United States in the execution of their own neutrality laws, to the preju- dice of other Governments. The introduction of all this matter into the British Case, the iteration of it in the British Counter-Case and the British Argument, and the extreme promi- nence given to it, as we shall hereafter see, by the British Arbitrator, serve to illustrate the singular unreasonableness and injustice of the angry com- plaints emitted in England against the American Case. The American Case contains no suggestion which is not strictly pertinent to the issues raised by the Treaty. It discusses the conduct of the British Gov- ernment relatively to the United States during our Civil War, with strict application to the “Alabama Claims.” It charges that, in those transactions, the British Government was guilty of culpable omission to observe the requirements of the law of nations as respects the United States, and with responsible neg- ligence in the non-execution of the neutrality laws of ALABAMA CLAIMS. 59 Great Britain. That was the very question present- ed by the Treaty. Great Britain professed to be so much offended by the character of certain of the proofs adduced in the American Case,—rigorously pertinent to the question as all those proofs were,—that she would not suffer any appropriate answer to those proofs to be brought forward in her Counter-Case or in her Argument: it was not compatible with selfrespect,—it would be giving dignity to undignified arguments,—we were told by the British Press. Meanwhile, the very mat- ter which the British Government could not conde- scend to notice was both material and important to such a degree as very much to inflame the temper and exercise the ingenuity of Sir Alexander Cockburn, the “representative” of Great Britain at Geneva. Now, the American Case, if conceived in any other spirit than that of just and fair exposition of the pre- cise issue,—question, that is, whether the British Gov- ernment had or had not incurred responsibility for its want of due diligence in the matter of Confederate cruisers fitted out in the ports of Great Britain,—I say, if the American Government, in the preparation of its Case, had not been animated by the spirit of perfect fairness and justness, it might have gone into the inquiry of the political conduct of Great Britain in other times, and with reference to other nations, in the view of imputing to her Aadctual disregard of the law of nations in illustration of her present conduct toward the United States. We might have charged that, while her statesmen contend that they could do 60 THE TREATY OF WASHINGTON. nothing outside of an Act of Parliament, they had no such Act until 1819, and were therefore, prior to that time, confessedly impotent, and we might have added willfully so, to observe the duties of neutrality; we might have scrutinized her national.history to select conspicuous examples of her acts of violence, in: dis- regard of the law of nations, against numerous States, including ourselves; we might have appealed to ev- ery volume of international law in existence, from the time of Grotius to this day, and cited page after page to the conclusion of the unjust international policy of Great Britain; and we might have argued from all this to infer intentional omission of the British Gov- ernment to prevent the escape of the Alabama and the Florida. But such arguments, you will say, would have been forced, remote, of doubtful relevance, and of a nature offensive to England. Be it so: they would, if you please, have been irrelevant, impertinent, offensive. And no such arguments are found in the American Case. But such are the arguments which pervade the British Case, Counter-Case, and Argument, and the opinions of the British member of the Tribunal. In- stead of defending its own conduct in the matter at issue, the British Government travels out of the record to find fault with the conduct of the United States at other times, and with respect to other na- tions. It presumes to take upon itself the function of personating Spain, Portugal, Nicaragua, and to drag before the Tribunal at Geneva controversies between ALABAMA CLAIMS. 61 us and other States, with which that Tribunal had no possible concern,—which it could not pretend to judge,—and of such obvious irrelevancy and imperti- nence that not one of the Arbitrators condescended to notice them except Sir Alexander Cockburn. The presentation in the British Case of considera- tions of this order, worthless and absurd as argu- ment, and wantonly offensive to the United States, was, in my judgment, an outrageous act, compared with which, in possible susceptibility of blame, there is nothing to be found in any of the affirmative doc- uments presented by the American Government. It was the cause of a singularly perverse incident, namely, complaint of the British Press against the American Argument for imputed wnkindness in al- luding to subjects, which had been forced upon our attention by the British Case. I mention these circumstances for the purpose of showing how relatively unjust it was to impute of- fensiveness of spirit and language to the American Case in view of the much more objectionable things in the British Case; and for the further purpose of pertinently stating that it was undignified for Great Britain to complain of the manner in which the Agent or Counsel of the United States might see fit to ar- gue our cause, as it would be for the American Gov- ernment to undertake to prescribe limits of discre- tion in this respect to the Agent or Counsel of Great Britain. Thus, the 15th of April, looked forward to with so much apparent dread by the British Government, 62 THE TREATY OF WASHINGTON. passed away, leaving the great question unsettled, in what manner ultimately to deal with the claim for national losses preferred by the United States. NEGOTIATIONS FOR A SUPPLEMENTAL TREATY. A new series of events then happened, which occu- pied the period intervening between the 15th of April and the 15th of June. It occurred to the two Governments that the diff- culty might be disposed of by the exchange of diplo- matic notes, which, in laying down a definite rule of reciprocal international right on the subject of such losses, should reserve or leave unimpaired the present pretensions of both Governments. The British Gov- ernment would not admit that it was the intention of. the Treaty to cover national losses; the United States insisted that it was, and refused to do any act incompatible with this construction of the Treaty; and, therefore, they would not withdraw any part of the American Case, nor disavow the opinion that it was within the province of the Arbitrators to consid- er all the claims, and to determine the liability of Great Britain for all the claims, which had been put forward by the United States. But the American Government had not asked for pecuniary damages in its “Case” on account of that part of the claims called the indirect losses; it only desired a judgment there- on, which would remove them for all future time as a cause of difference between the two Governments. To hold that this class of claims was not disposed of by the Treaty, is, Was not a subject for the con: ALABAMA CLAIMS. . 63 sideration of the Tribunal of Arbitration,—was to infer that they remained open and unadjusted, and suscep- tible of being hereafter brought forward anew by the United States as an object of reclamation against Great Britain. One great inducement to the Treaty would thus be defeated, namely, the establishment of perfect concord and peace. In view of which it was thought expedient to endeavor to adjust the present dispute by informal stipulations on the part of the two Governments. This well-intentioned effort failed, because of the persistent contention of the British Government that the Treaty excluded from the Arbitration the claims for national losses advanced by the United States. Further reflection on the subject satisfied the Amer- ican Government that nothing short of a new treaty could dispose of the question on the premises of the pending negotiation, it being clear that the President of the United States could not of himself withdraw claims which were in his opinion justified. by the Treaty of Washington. Thereupon the President requested of the Senate an expression of their disposition in regard to advis- ing and consenting to the formal adoption of an arti- cle of treaty proposed by the British Government, to the effect of stipulating that he would make no claim on the part of the United States in respect of the so- called indirect losses before the Tribunal of Arbitra- tion, in consideration of an agreement between the two Governments, the essence of which was set forth in a preamble to the effect that 64 THE TREATY OF .WASHINGTON. “Such indirect claims as those for national losses stated in the Case presented on the part of the Government of the United States . . . should not be admitted in principle as growing out of the acts committed by particular vessels, alleged to have been enabled to commit depredations on the shipping of a bel- ligerent by reason of such want of due diligence in the per- formance of neutral obligations as that which is imputed by the United States to Great Britain :” which proposed agreement the preamble proceeds to state, in the form of two separate declarations,—one by Great Britain and one by the United States— each of them intelligible only by reference to pre- vious parts of the preamble: the whole to the con- clusion that the President shall make no claim, on the part of the United States, in respect of the indi- rect claims as aforesaid, before the Tribunal of Arbi- tration at Geneva. The Senate, thinking that the recitals in the pre- amble were not sufficiently explicit to furnish to the: United States satisfactory basis of transaction, pro- posed the following substitute : “Whereas both Governments adopt for the future the prin- ciple that claims for remote or indirect losses should not be admitted as the result of failure to observe neutral obligations, so far as to declare that it will hereafter guide the conduct of both Governments in their relations with each other. Now, therefore,” etc. But the Senate’s redaction of the article rendered its meaning too clear to be agreeable to the British Government, which, as was shrewdly said of it in Paris at the time, doubted whether release from claim of reparation for the present wrong done by Great ALABAMA CLAIMS. 65 Britain to the United States might not be purchased too dearly by conceding to the United States, in con- sideration theréof, indefinite and unlimited exemption from responsibility for wrongs of the same nature to be ‘inflicted in all future time by the United States on Great Britain. _ Further interchange of dispatches on this subject followed, the British Government insisting on modifi- cation. of the terns of an pigposed oy the Senate. But Congress ee now y adjourned, ‘The. 13th of June was impending, on which day the United States must of necessity present their final argument or lose their hold on’ the Treaty. If, at’ the commencement of the difficulty, the British Govemmett had proposed to. the American Government to agree to postpone the proceedings of the Tribunal and take time for negotiation in the usual way, a new. treaty might have been concluded as contemplated by the: two Governments. » Such treaty, requiring ‘careful cdn- sideration _of phraseology, with discussion and expla- nations regatding the same, could not be ‘conéluded in haste ‘by means of telegraphic communication: be: tween London and Washington. The spectacle exhibited by the two Governments at this time was one of profound interest to the whole world. They were inspired by friendly sentiments on each side. , They differed in regard to the. construction of .a treaty: which neither desired’ to: break. . Diplo: matic correspondence had failed to bring them into concord of opinion. They endeavored to reconcile E 66 THE TREATY OF WASHINGTON. this difference by supplemental treaty. Only a few weeks remained in which to negotiate; and the parties were separated by thousands of miles of ocean. It was necessary, therefore, to negotiate, if at all, by telegraph,—an operation quite as novel as had been that of conducting the business of government in France by means of pigeons or balloons during the siege of Paris. But, before it was possible for the parties to conclude a treaty by telegraph, the fatal day arrived, greatly to the embarrassment of the British Government. PRESENTATION OF ARGUMENTS FOR THE UNITED STATES, For the course of the United States in this exigen- cy was plain before them: it was to present their final Argument to the Tribunal of Arbitration, in con- formity with their own conception of their rights, just as if there were no controversy on the point between them and Great Britain. The President of the United States was immova- bly fixed in the purpose not to withdraw the contro: verted claims, nor to abstain from making claim be- fore the Tribunal in respect to the so-called indirect losses, except in consideration of a new treaty regard- ing the same, satisfactory to himself and to the Senate of the United States. In a dispatch of the Secretary of State to the Min- ister at London, of the 28th of May, 1872, the induce: ment and hject of the United States, in persisting to retain these claims before the Tribunal, are summa- rily stated as follows: ALABAMA CLAIMS. 67 1. “The right under the Treaty to present them. 2. “To have them disposéd of and removed from further con- troversy. 3. “To obtain a decision either for or against the liability of a neutral for claims of that description. 4. “Tf the liability of a neutral for such claims is admitted in the future, then to insist on payment by Great Britain for those of the past. * 5. “Having a case against Great Britain to have the same principle applied to it that may in the future be invoked against the United States.” Of these considerations, the last four, it is obvious, are the complete justification of the insertion of our national claims in the Treaty and of their presenta- tion in the “ Case.” Hence the duty of the Agent and Counsel of the United States, having charge of the judicial investi- gation pending before the Tribunal of Arbitration, remained the same in the interval between December 15th, 1871, and June 15th, 1872, whatever diplomatic discussions or negotiations might be going on between the two Governments. Our instructions were defi- nite and peremptory, as the British Government well understood, to prepare the Counter-Case for the Unit- ed States, and the final Argument, on the, premises of the Treaty as construed by the United States and as explained in the American Case. Our Counter- Case was prepared accordingly, as already stated, and filed in English and in French before the Tribunal. And in like manner we prepared our final Argument. This Argument, consisting of an octavo volume of 495 pages, after discussing fully the various questions of fact and of law involved in the submission to arbi- 68 THE TREATY OF WASHINGTON. tration, proceeds to examine the particular claims, na- tional as well as individual,—to maintain the jur ‘ellie tion of the Tribunal over both classes of claims,—and to argue the nature and degree of the responsibility of Great Britain to the United States in the premises. In fine, the Argument is co-extensive with the “ Case.” We repaired to Geneva in due, time, and at the meeting of the Tribunal on’ the 15th we presented our Argument as required by the Treaty, and, for the better information of the Tribunal, in French as well as in English. That is to say, the Government of the United States, through the means of its official Agent, complied with that last command of the Trea- ty of Washington, in virtue of which the Tribunal of Arbitration became formally seized and possessed of all our claims, national as well as private, precisely as if no controversy on the subject existed between the two Governments. The United States were in condi- tion to invoke the judgment‘of the Tribunal, whether Great Britain appeared or not; for Counsel had am- ple authority of legal doctrine at hand to show that the Tribunal would have power to act even in the absence of Great Britain. In the anticipation of this contingency, the British Government requested that of the United States to concur in making a joint application to the Tribunal for an adjournment of eight months, in order to afford to the two Governments sufficient time for further negotiation, Mr. Fish replied that the Government of the United States had no reason to desire such ad- journment, although the’ Government intended, and ALABAMA CLAIMS. 69 instructed its Agent, to assent to a motion for ad. journment on the part of Great Britain, provided the British Argument were filed in good faith, without offensive notice, or other objectionable accompani- ment. Thus it became necessary for the British Govern- ment to decide for itself how to act in the premises. The course adopted by it was to withhold its Argu- ment, and to file a statement, setting forth the recent negotiations ‘for the solution of the difficulty between the two Governments, and the hope that, if time were afforded, such a solution might be found practicable ; and thereupon to move an adjournment of eight months, with reserve of all rights in the event of an agreement not being finally arrived at, as expressed in the note which accompanied the British Counter-Case. DECISION OF THE ARBITRATORS RESPECTING NATIONAL : LOSSES. These acts having been performed, the Arbitrators adjourned, first to the 17th, and then to the 19th of June, in order to afford time for reflection to them- selves and:to the two Governments. It will be taken for granted that in the interval be- tween the 15th and the 19th of June communications by telegraph passed between the respective Agents and their Governments, and consultations took place between the Counsel of both sides and the respective Agents, either orally or in writing, and, with more or less formality, among the Arbitrators, the result of which was announced by Count Sclopis as follows: 50 THE TREATY OF WASHINGTON. “The Arbitrators do not propose to express or imply any opinion.upon the point thus in difference between the two Governments as to the interpretation or effect of the Treaty, but it seems to them obvious that the substantial object of the adjournment must be to give the two Governments an op: portunity of determining whether the claims in question shall or shall not be submitted to the decision of the Arbitrators, and that any difference between the two Governments on this point may make the adjournment unproductive of any useful effect, and, after a delay of many months, during which both nations may be kept in a state of painful suspense, may end in a result which it is to be presumed both Governments would equally deplore, that of making this arbitration wholly abor- tive. This being so, the Arbitrators think it right to state that, after the most careful perusal of all that has been urged on the part of the Government of the United States in respect of these claims, they have arrived, individually and collective- ly, at the conclusion that these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations; and should, upon ‘such princi- ples, be wholly excluded from the consideration of the Tribu- nal in making its award, even if there were no disagreement between the two Governments as to the competency of the TriSunal to decide thereon. With a view to the.settlement of the other claims, to the consideration of which by the Tri- bunal no exception has been taken on the part of Her Britan- nic Majesty’s Government, the Arbitrators have thought it de- sirable to lay before the parties this expression of the views they have formed upon the question of public law involved, in order that, after this declaration by the Tribunal, it may be considered by the Government of the United States whether any course can be adopted respecting the first - mentioned claims which would relieve the Tribunal from the necessity of deciding upon the present application of Her Britannic Maj- esty’s Government.” Count Sclopis added that it was the intention of the Tribunal that this statement should be consid- ALABAMA CLAIMS. val ered for the present to be confidential,—that is, sub- ject, to the discretion of either of the two Govern. ments. But what is the “question of public law involved 2” Is it the question of claim for indirect or consequen- tial damages, as argued by the British Government? By no means. Observe, no suggestion of any distinction between direct and indirect claims is to be found in the decla- ration of the Arbitrators. And their declaration can not be explained by reference to any such order of ideas. The significant words are: “These claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations.” Why do they not? Because they are indirect? Because they.are consequential? No such objection is intimated. But although, in making this declaration, a mere conclusion of mind, the Arbitrators abstained at the time from assigning any reasons for such conclusion, yet they supplied this omission subsequently, as we shall plainly see when we come to review the ensem- ble of all the acts of the Tribunal. We shall then be able to appreciate the importance and value of this declaration to the United States. The Counsel of the United States advised the ac- ceptance of this declaration by the Government, as follows: 72 THE TREATY-OF WASHINGTON. ““ We are ‘of opinion that the announcement this day made by the Tribunal must be received by the United States as de- terminative of its judgment on the question of public law in- volved, as to which the United States have. insisted on taking the opinion. of the Tribunal. We advise, therefore, that it should be submitted to, as precluding the-propriety of further insisting upon the claims covered by. this declaration of the Tribunal, and that the United States, with a view of maintain- ing the due course of the arbitration on the other claims with: out adjournment, should announce to the Tribunal that the said claims covered by its opinion will not be further insisted upon before the Tribunal by the United States, and may be excluded from all consideration by the Tribunal in making its award.” In response, the Secretary of State communicated the determination of the President, as follows: “T have laid your telegrams before the President, who di- rects me to say that he accepts the declaration of the Tr ribunal as its judgment upon a question of public law, which he had felt that the interests of both Governments required should be decided, and for the determination of which he had felt it important to present the claims referred to for the purpose of taking the opinion of the Tribunal. “This is the attainment of an end which this Government had in view in the putting forth of those claims. We had'no desire for a pecuniary award, but desired an expression by the Tribunal as to the liability of a neutral for claims of that char- acter. The President, therefore, further accepts the opinion and advice of the Counsel as set forth above, and authorizes the announcement to the Tribunal.that he accepts their decla- ration as determinative of their judgment upon the important question of public law as to which he had felt it his duty to seek the expression of.their opinion; and that, in accordancé with such judgment and opinion, from henéeforth he regards the claims set forth in the Case presented on the part. of the United States for loss in the transfer of the American commer- cial marine to the British.flag, the enhanced payment of insur- ance, and the prolongation of the war, and the addition’ of.a ALABAMA CLAIMS. 13 large sum to the ¢ost, of the war and the suppression’ of the Rebellion, as adjudicated and disposed of; and that, consequent- ly, they will not be further insisted upon before the Tribunal by the United States, but are henceforth excluded from its con- sideration by the Tribunal in making its award.” ° This conclusion was announced to the Tribunal by the Agent of the United States on the 25th of June in the following words : ' ¢The declaration made by the Tribunal, individually and ‘collectively, respecting the claims ptesented by the United States for the award of the Tribunal for, first, the losses in the transfer of the American commercial marine to the British flag ; second, the enhanced payment of insurance ; and, third, the pro- longation of the war, and the addition of a large sum to the cost of the war and the suppression of the Rebellion, i is accepted by the President of the United States as determinative of their judgment upon the i important question of public law involved.” 2 On the 27th, the British Agent announced the ac quiescence of his Government in this arrangement, withdrew his motion of adjournment, and filed thé British Argument. And in this manner the controversy, which for so many months had engrossed the attention of the two Governments, was finally disposed of as the Govern- ment of the United States had constantly contended it should be [unless otherwise settled by treaty ],— that is, by the declaration of the judgment or-opinion of the Arbitrators, in such form as to constitute, in effect, a rule of law, morally binding on Great Britain and the United States. The President of the Tribunal, Count Sclopis, then proceeded to pronounce an appropriate and well- written discourse, expressing satisfaction at the re- 74 THE TREATY OF WASHINGTON. moval of all obstacles to the free action of the Tribu- nal, and commenting on the political relations of the Treaty of Washington, preparatory to the considera. tion of: the other questions submitted to the Arbitra- tors. SEAT OF THE ARBITRATION. And here, before proceeding to explain and to dis. cuss the subsequent acts of the Tribunal, it seems convenient to pause, in order to speak of the scene of action and of the Tribunal, to which the eyes of all nations were attracted, and especially those of the people of England and of America. It was most fit and proper to select Switzerland as the country, and Geneva as the city, in which to hold the sessions of the Tribunal. In fact, Switzerland, at the same time that it is the land of hospitality, inviting the frequentation of all the world by its picturesque scenery, the beauty and sublimity of its lakes and mountains, is also the land of neutrality par excellence. No other country pos- sesses in the same degree these qualities conjoined. In no other country was it possible to avoid all in- vidious local suspicion, and to be exempt from any possible political influence foreign to the objects of the Arbitration. The selection was peculiarly agreeable to the United States, by reason of the striking similarity between our institutions and- those of Switzerland. Both Governments cultivate a policy of international neutrality: the one, by reason of its isolation and re ALABAMA CLAIMS. a5 moteness from the Old World, and the other because of its geographical position in the midst of the great military Powers of Europe. Both Governments are federal; and Switzerland, not content with those modifications .of her’ system of government adopted in the year 1848, which did so much to assimilate her political organization to that of the United States, now manifests the purpose to amend that Constitution so as to make it still more like to ours. In both countries the force of public life pervades society like the blood in the human system, so that every citizen is an active mentber of the Republic. Hence it is impossible to an intelligent American to avoid entertaining warm sympathy for the Swiss Confederation. Geneva is a cosmopolitan city, — situated in the very heart of Europe,—distinguished for the intelli- gence of its inhabitants and their love of liberty. It is city, in respect of the commodities of life: it is country, in so far as regards the locality and the sur- rounding natural objects, Lake Leman, the Jura, and the Alps. The Federal Government, as well as that of the Canton of Geneva, appreciated the honor of being the seat of this great international Tribunal, and did not fail to welcome most cordially the two Governments, their Agents and their Counsel, by conspicuous mani- festations of political as well as of personal considera- tion. The Cantonal Government at Geneva hastened to provide suitable accommodations for the Tribunal in ‘the Hotel de Ville of that city; it afforded to the mem- "6 THE TREATY OF WASHINGTON. bers of the Tribunal and to the representatives of thé two Governments access to numerous official exhibi: tions and entertainments; and, at a suitable time, it made for us a special fostival at Geneva, as the Fed. eral Government did at Interlaken and at Berne. Switzerland, and Geneva especially, looking at the several acts of arbitration provided by the Treaty of Washington as constituting great steps in the prog: ress of public peace, welcomed us the more heartily because of the recent organization there of a society, whose objects are defined by its title of “Comité In- ternational de Secours aux Militaires Blessés.” This society had acquired universal respect by its acts of disinterested philanthropy in the late war between. Germany and France. Its symbol of the red. cross had been the harbinger of relief to many-a suffering victim of battle. It was organized under the’ Pres: idency of that General Dufour who, in 1847, had led to victory the forces of Switzerland against the Seces: sion [Sonderbund] Cantons. And men could not fail to note the coincidence, when they saw this great Tribunal of Arbitration organized under the auspices of the victorious commander of our own Union forces [General Grant], as the International Commission for the Succor of the Wounded had been under the auspices of the veteran General Dufour. It was im- pressive to see the greatest Generals of the two coun- tries laboring to diminish the chances and lighten the evils of war. The Tribunal of Arbitration occupied the same gl in the Hétel de Ville which had just before been oc ALABAMA CLAIMS. 77 cupied by the Society for the Succor of the Wounded : a room of moderate dimensions, but adequate to the purpose, fitted up ‘with elegance and good taste, not, however, specially for the Commission or Tribunal, but for ordinary uses of the City or Canton, indicated by its title “Salle des Conférences.” The Hotel de Ville is a structure in the Florentine style of architecture, situated on the summit of the old Geneva, and which is occupied both by munic- ipal officers of the City and by the executive and leg. islative authorities of the Canton. COUNT FREDERIC SCLOPIS. Here, then, in the “Salle des Conférences” of the Hotel de Ville, at Geneva, the Tribunal assembled to listen to the opening discourse of the President, Count Sclopis, and to take up the business remaining for the consideration of the Arbitrators. ‘ Count Sclopis, in this discourse, expressed belief that the meeting of the Tribunal indicated of itself the impression of new direction on the public policy of nations the most advanced in civilization, and ‘the commencement of an epoch in which the spirit of moderation and the sentiment of equity were begin- ning to prevail over the tendency of the old routines of arbitrary violence or culpable indifference. He signified regret that the pacific views of the Congress of Paris had not been seconded by events in Europe. He congratulated the world that the statesmen who directed the destinies of Great Britain and the United States, with rare firmness of conviction and devotion 78 THE TREATY OF WASHINGTON. to the interests of humanity, resisting all temptations of vulgar ambition, had magnanimously and coura- geously traversed in peace the difficulties which had divided them both before and since the conclusion of the Treaty. He quoted approvingly the opinion ex. pressed by Mr. Gladstone, on the one hand, and by President Washington, on the other, in commendation of the policy of peace, of justice, and of honor in the conduct of nations. And he proclaimed in behalf of his colleagues, as well as of himself, the purpose of the Tribunal, acting sometimes with the large percep- tion of statesmen, sometimes with the scrutinizing eye of judges, and always with a profound sentiment of equity and with absolute impartiality, thus to dis charge its high duty of pacification as well as of jus- tice to the two Governments. The discourse was worthy of the occasion and of the man. Count Frederic Sclopis of Salerano, Minister of State and Senator of the new Kingdom of Italy, has attained the ripe age of seventy-four years in the as- siduous cultivation of letters, and in the discharge of the highest political and judicial functions. The countryman and the friend of Count Cavour, it was his fortune to co-operate in the task of the unification of Italy under the leadership of the House of Savoy. This great military House, with its enterprising, ambitious, and politic instincts, second in fortune only to the Habsburgs and the Zollerns, rose in the elev- enth century, on the ruins of the Burgundians, to the possession of the passes of the Valaisian, Cottian, and ALABAMA CLAIMS. 19 Graian Alps, and of the Gallic territory on both shores of Lake Leman, and at length to the possession of extensive Italian territories, denominated Piedmont by relation to the Alps and the Apennines, the nucleus of the present Kingdom of Italy. Tt needs to conceive and picture to the mind’s eye the Alpine‘cradle of this adventurous and martial, but cultivated race of Italianized Savoisian princes, nobles, and people—the fertile, but ravaged valleys of the Rhone, the Arve, the Albarine, the Arc, and the two Doras; the castellated heights of L’Ecluse, Mont- mélian, and La Brunnetta; the vine-clad hill‘sides and the lofty cols dominated by the giant peaks of Mont Blanc and Monte Rosa; the sepulchral monuments of Haute-Combe and of Brou, and the rich plains along the Italian foot of the Alps,—in order to comprehend the growth to greatness of sovereigns such as Vittorio Emanuele, supported by such generals as Menabrea and Cialdini, and statesmen and magistrates such as Azeglio, Balbo, Sclopis, and especially Cavour. Like his compatriot, the Marquis d’Azeglio, Count Sclopis is eminent as an author. Of his published writings, some are in French, such as “ Marie Louise Gabrielle de Savoie” and “Cardinal Morone.” But his most important works are in Italian; and above all, the learned “Storia della Legislazione Italiana,” the last edition of which, in five volumes, is a most in- teresting and instructive exhibition of the successive stages of the medieval and modern legislation of all the different States of Italy. Such was the eminent personage who presided. over 80 THE TREATY. OF WASHINGTON. and conducted the deliberations of the Tribunal, and who represented and spoke for it on ceygmonial occa, sions: a man of large stature and dignitied presence; of the high breeding of rank, but without pretensive- ness; cordial and kindly in social intercourse; the impersonation, as it were, of the intellect and the cul- ture of Continental Europe. MR. STEMPFLI. Sitting by the right hand of Count Sclopis, as next to him in precedence, not by reason of age,—for he. was the youngest member of the Tribunal,—but as representing the local Government, Switzerland, was Mr. James [or, in German, Jacob] Stempfli: a genu- ine representative of democratic institutions,—sprung from the people—the son of his own works,—clear- headed, strong-minded, firm-hearted,—somewhat post: tive,—not prone to talk except when talk was of the essence of things, and then briefly and to the point,— in a word, a man of the very stuff out of which to make Presidents of Federal Republics.. ‘ Mr, Stempfli is a German Swiss of the Canton of Berne, who has risen from the humblest to the highest condition in his country by mere force of intellect and indomitable will. Born in 1820, admitted to the Bar in 1848, he came forward at once as an advocate, and as.a journalist of radical opinions, and speedily at- tained distinction. In 1846 we find him a conspicu- ous member of the Council of State, directing the finances, and laboring to organize a central military force. In 1847 he represented the Canton of Berne ALABAMA CLAIMS. 81 in the Diet, and was active in asserting the rights of the Federation against the seceding States of the Sonderbund. He served in that war as Treasurer and Paymaster-General of the Army. Displaced for a while, he resumed the practice of his profession as advocate, but soon returned to power, in 1851, as Pres- ident of the National Council, where he continued to be distinguished as a close reasoner and incisive speak- er, full of intelligence and of resources, supported by great energy of character. In 1856, he was elected President of the Confederation, and again in 1859, and the third time in 1862: these repeated but . terrupted re-elections illustrating the Swiss Constitu- tion, according to which the President is elected for one year only, and can not be re-elected for the next succeeding year, but is otherwise re-eligible without limitation. Events of great importance to Switzer- land occurred in the years of the administration of Mr. Steempfli; among others, the separation of Neu- chatel from Prussia, the war in Italy, and the annexion of Savoy to France. His theory of executive action was characteristic of the man, namely, “ When peril is certain, it is better to advance to meet it, rather than timidly to await its approach.” In fine, prepa- ration and decision are the distinctive traits of all the official acts of Mr. Steempfii. There is one peculiarity in the political character of Mr. Steempfli, which belongs to him, indeed, as a Swiss, namely, definiteness and affirmativeness in the matter of international neutrality and morality. Switzerland no longer permits capitulations of for- 82 THE TREATY OF WASHINGTON. eign enlistment: they are expressly forbidden by the Federal Constitution. Her laws punish as a crime all violation by individuals of the international rights - of foreign Powers.. Her neutrality is active, not pas- sive,—preventive, as’ well as punitive. She has no maritime relations, it is true; but, in dealing with un- lawful equipments or expeditions by land, she ob- serves rules of neutrality which are applicable, in the- ory and practice, equally to equipments or expedi- tions for naval warfare. Our own temporary act of 1838, which comprehends vehicles [on land] and ves- sels [on water] in the same clause of criminality, af: fords complete answer to those Englishmen who have superficially assumed that because Switzerland is not a maritime Power, she [or a statesman of hers] could not competently judge the case of the Alabama or the Horida. Diligence to execute the law,—vigilance to prevent its violation,—is the same in Switzerland as in Italy or Brazil, in Great Britain or the United States. And the position of Switzerland, which, re- quires of her the spontaneous execution of her nev- trality. laws, had evident effect on the mind of Mr. Steempfli to produce those conclusions of his against Great Britain, which, as we shall see in the sequel, were so grossly misapprehended and so angrily re- sented by Sir Alexander Cockburn. At the time when the Swiss Government invited Mr. Stempfli to act as. Arbitrator for Switzerland under the Treaty of Washington, he had full occupa- tion in public or private affairs as a member of the National Council and as President of the Federal ALABAMA CLAIMS. 83 (Eidgenossische) Bank established at Berne. On receiving the respective “Counter-Cases” of the two Governments, which in effect closed the proofs on both sides, te took a characteristic step in order to be prepared for action in June. As you sail up the Lake of Thun toward Unter seen or Interlaken, you note on the left the precipi- hond addeA ‘mountainside ct Beatenberg. Here, high up in a rural hamlet, hidden among ‘the treés, with the beautiful lakes of Thun and Brienz at his feet, and the magnificent spectacle of the Oberland, terminating at the remoter Berner Alps, —in those balmy Alpine days when spring is passing into: sum- mer, and all earth is a paradise of verdure and of ani- mation,—here Mr. Stempfli secluded himself from the social disfractigns and cares of business at Berne, and dedicated himself to. the mastery of the “ Alabama Claims.” In such a blessed retreat even law-books might lose their dullness, and diplomatic corr espond- ence, depositions, and legal pleadings be invested with the charmed reflection of the matchless scenery of lakes, fields, ‘hamlets, cities, mountains, and. rivers, glittering. in: the sun, and resting in the hérizon at the snow-crowned heights of the Jungfrau. And so it seems to have been. For good St. Bea- tus blessed the mountain labors of Mr. Steempfli, and he came to Geneva in due’time with full abstracts of evidence and elaborately written opinions on the main questions at.issue before the Tribunal, to the ap- parent surprise of Sir Alexander Cockburn, who, con- fidently relying on the rupture of the Arbitration, as 84 THE TREATY OF WASHINGTON. he himself avowed, had not yet begun to examine the cause, and seemed to suppose that every body else ought to be as neglectfully ignorant of it as himself; which sentiment betrayed itself on variaus occasions in the sittings of the Tribunal. VISCOUNT OF ITAJUBA. On the left of Count Sclopis sat the Arbitrator named by the Emperor of Brazil, the Viscount of Itajuba. The people of the United States do not seem to be generally aware how much of high cultivation, es- pecially [but not exclusively] in the departments of diplomacy and jurisprudence, exists in those countries of America which were colonized by Spain and Por- tugal. Nevertheless, on careful consideration of the sterling merits of such historical writers as the Mexi- can Lucas Alaman,—such authors of international ju- risprudence as the Chilean Bello, the Argentine Calvo, or the Peruvian Pando,—such writers of belles-lettres, of travels, or of statistics, as the Colombians, Samper and Perez,—such poets as the Brazilian Magalhaens, -—such codes of municipal law as those of the States of Cundinamarca and. of Mexico or.of the Argentine Confederation, and of other Republics of Spanish America,—we should be compelled to admit that lit- erature and science are not confined to our part of the New World. And, among all these new Powers of America, there is not one more deserving of respect—Empire and not Republic though it be—than Brazil, in view of ALABAMA CLAIMS: 85 the magnitude of its territory, the greatness of its re- sources, its military strength and successes, its enlight- ened and reforming chief ruler, the substantial liber- ality of its political institutions, and the unbroken domestic tranquillity of its independent life, so strik- ingly in contrast with the revolutionary agitations of most of the Spanish-American Republics. Marcos Antonio d’Araujo belongs to that numer. ous body of jurists and statesmen, the natural growth of parliamentary’ institutions based on popular elec- tion, who do honor at the present time to Brazil. He filled in early life the chair of Professor of Jurispru- dence in the University of Pernambuco. His first diplomatic appointment was that of Consul-General of Brazil in the Hanse Towns, with residence at Ham- burg. After that he held successively the offices of Minister or Envoy at Hanover, at Copenhagen, at Berlin, and finally at Paris. At the time of his ap- pointment as Arbitrator he was Envoy Extraordi- nary and Minister Plenipotentiary of Brazil in France, by the tjtle of Baron d’Htajubd, and he was made a Viscount during the progress of the Arbitration. With exception, therefore, of the judicial studies and occupations of his youth, the Viscount of Itajuba is a diplomatist, having passed nearly forty years of his life in the discharge of diplomatic functions in different countries of Europe. He possesses all the qualities of his chreer and station, namely, courteous and attractive manners, intelligence disciplined by long experience of men and affairs, instinctive appreciation of principles and facts, and the ready expression of: 86 THE TREATY OF WASHINGTON. thought in apt language, but without the tendency to run into the path of debate or exposition, which ap. peared in the acts of some of his polenenes of the Tribunal of Arbitration. In comparing Mr. Stempfli, with his deep-brown complexion, his piercing dark eyes, his jet black hair, his quick but suppressed manner, and the Viscount of Itajubé, with his fair complexion and his air of gentleness and affability, one, having no previous knowledge of their respective origins, would certainly attribute that of the former to tropical and passion- ate America, and that of the latter to temperate and calm-blooded Europe. SIR ALEXANDER COCKBURN. On the extremes of the Board, Mr. Adams to the right and Sir Alexander Cockburn to the left, sat the American and British members of the Tribunal. Sir Alexander Cockburn represents a family of some distinction, the Cockburns of Langton. His father was British Minister in Colombia, and one of his uncles was that Admiral Sir George Cockburn, whose service in American waters during our last war with Great Britain has left some unpleasant traces or memories in the United States. His mother seems to have been a French lady, being described by Burke as “ Yolande, dau. of Viscomte de Vignier - of St. Domingo.” He was born in 1802, called to the bar in 1829, became distinguished as a , bariistar entered Parliament, and, after passing through the routine offices of Solicitor and Attorney General, was ALABAMA CLAIMS. 87 made Chief Justice of the Court. of Common Pleas in 1856, and of the Queen’s Bench in 1859, which place he still fills. He presided for sixteen years in the common-law courts of England without being raised to the peer- age. It is unnecessary to. speculate on the reasons for this unusual, if not unprecedented fact. His political career dates from his zealous defense of Lord Palmerston in the affair of the notorious David Pacifico. This person was an adventurer of doubtful nationality and of bad character, in whose behalf the navy of Great Britain, under Lord Palmer- ston’s direction, seized the Pirseus, captured Greek merchant-vessels, and threatened Athens. The ground of claim was alleged destruction of property by a mob. Pacifico claimed, according to the official statement of the case by the British Government, £4916 on ac- count of furniture and other personal effects, which he originally stated at only 5000 francs, and £26,618 16s. 8d. on account of papers. It is very doubtful whether the claim was a proper subject of interna- tional reclamation. But, after a three months’ block- ade, Greece submitted to pay £5000, of which £4720 was either falsehood or consequential damages; and afterward, on examination of the case in Lisbon, a commission awarded the petty sum of £150 in full satisfaction of the pretended loss of £26,618, induced perhaps by political reasons rather than by conviction of any rights of Pacifico. The conduct of Lord Palmerston and the British Government in this affair nearly involved Great Brit- 88 THE TREATY OF WASHINGTON. ain in a war with France and Russia. The French Embassador retired from London to Paris for the purpose of personal communication on the subject with his Government. Count Nesselrode on behalf of Russia remonstrated in a dispatch, which the Lon. don Times. characterized as reproachful, irrefutable, and just, and as profoundly affecting the peace of Eu- rope and the dignity of Great Britain. The united voice of Europe and America has condemned the con- duct of Great Britain in this affair. The House of Lords closed an historic debate by a vote of censure of the Government. In the Commons, the last words of Sir Robert Peel were raised in protest against this outrage on the rights of other nations; the morn. ing dawned on a protracted session of the House before he recorded his vote of condemnation; in the afternoon of the same day he met with the accident which closed his honorable life. Mr. Gladstone in the same debate said that the claim was “on the very face of it an outrageous fraud and falsehood ;” that “it was mere falsehood-and imposture,” and that “ a great- er iniquity had rarely been transacted under the face — of the sun.” Sir Alexander Cockburn was then without parlia- mentary distinction or political advancement. With ‘the devotion of a Dalgetty, he placed his lance at the service of a chief, regardless of the merits of the cause. He was soon rewarded for his services by appointment to the office of Solicitor-General, from which he was promoted step by step, with unexam- pled celerity, to his present position: ALABAMA CLAIMS. 89 Since he became the head of the Queen’s Bench he has occasionally appeared in the field of letters on questions connected with municipal or public law, but not in a way to invite respect at home, or attention beyond the limits of Great Britain. A few years ago he published a monogram on the subject of nationality, in which he reproduced in an abridged form [but quite incorrectly, as the remarks of a most. competent judge, Mr. Beach Lawrence, on droit Caubaine, tend to show] the matter contained in the report of a commission appointed by the Goy- ernment to inquire into and report upon the-laws of naturalization and allegiance in England. Again, when it was proposed to arraign Nelson and Brand as criminals in England for acts committed in Jamaica under proclamation of martial law, Sir Alex- ander Cockburn delivered a voluminous charge to the ‘grand jury, which he afterward published with addi- tions and notes, notwithstanding the partiality and the urgency of which, the grand jury refused to find a bill; and it must be confessed that, as a charge, it was pas- sionate, vague, declamatory, and confused; and as an exposition of law, it is valueless when compared with the treatises of Mr. Finlason, in England, and of Mr. Whiting, in America, on the same subject. This “charge, and some proceedings by which it was followed, provoked much criticism. Mr. Ga- thorne Hardy, for instance, called attention to the fact that the Chief Justice “vacillated,” that he “went from one side to another,” so as to render it doubtful what his opinions really were; and Mr. ‘90 THE TREATY OF WASHINGTON. Hardy, as well as Mr. Mill, who spoke on the other side of the general question, said that the charge was “not law,” and was “without legal authority.” Mr. Finlason, a most competent authority, said that, “al- though the charge dealt so largely in denunciation,” it was “utterly indeterminate and indecisive ;” that “it avowed a state of entire doubt;” that, though “there was much denunciation of law laid down [by others], there was no positive declaration of law laid down by the Chief Justice.” The same writer also points out grave mistakes of history as well as errors of law in this charge, Thus, the Chief Justice as. sumes, as a cardinal thought, that martial Jaw and military law are one and the same thing: a mistake, which implies extraordinary confusion of mind, for- getfulness of his own official opinions in the inci- dents of the rebellion in Ceylon, and ignorance of the most commonplace events of English history, for instance, as detailed in Hallam and Macaulay. I allude to these criticisms for the reason that, as will appear in the sequel, the same singular intellect- ual traits and moral characteristics of the Chief Jus: tice, which became conspicuous at Geneva, had shown themselves on the Queen’s Bench, and had attracted the notice of his fellow-countrymen. I refer to this charge for another cause. It is diffi- cult for many reasons to measure the exact personal value of ordinary legal opinions delivered, in the course of adjudication, by any judge of the Queen's Bench. All such difficulties cease when he goes out of his way to deliver a demonstrative charge to a ALABAMA CLAIMS.. 91 grand jury on one of the semi-political questions of. the day, and especially when such charge is carefully revised for the Press, with additions and annotations by himself. Then we have the most satisfactory means of estimating the mental character of that judge. And such is the case here, to the effect of lowering greatly our estimation of re Chief Justice. A later incident in his judicial career also throws some light on his character, and deserves notice in this connection. When it was proposed to commence proceedings against Governor Eyre, growing out of what. had been done in Jamaica under the same proclamation, Mr. Justice Blackburn delivered a charge to the grand jury, in the course of which he said: “As to the judges of my own court, the Lord Chief Justice, my brother Mellor, my brother Lush, and my broth- er Hannen,... yesterday I stated to them the effect of what I am now stating to you, and they all ap- proved of it, and authorized me to say,—of course, not relieving me from my responsibility, or absolitély binding them, for of course they have not considered it so thoroughly and judicially as I have been obliged to do,—still they authorize me to say they agree in my view of the law, and thought it right.” A week later, when the case had been entirely dis. posed of, the Chief Justice, while sitting on the Bench, denied, with unseemly warmth of language and manner, that he had assented to the law as laid down by Mr. Justice Blackburn; but explained the alleged difference of opinion in such obscure lan- 92 THE TREATY OF WASHINGTON. guage as to render it scarcely intelligible. Mr. Jus. tice Blackburn replied, reiterating in temperate lan. guage his statement that the Chief Justice had ex. pressly assented to the legal doctrine of the charge, and his colleagues, Justices Mellor, Lush, and Han- nen, gave no support to the denial made by the Chief Justice. The qualities of character exhibited in this inci- dent were the occasion at the time of unfavorable commentary on the part of the British Press and public. Sir Alexander Cockburn had seemed, on superfi- cial view, a fit person to take part in the important duties committed to the Tribunal of Arbitration, He carried thither the prestige of judicial rank, as the head of one of the most venerable courts of Europe. And he was thorough master of the language in which the discussions of the Tribunal were con- ducted. But, unfortunately,.it would seem that neither the original constitution of his mind, nor the studies, pur- suits, or habits of his life, had fitted him for calm, im- partial, judicial examination of great questions of public law. The same traits of confused’ thought, equivocation in matters of law, tendency to declama- tory denunciation of adversary opinions, which pro- voked and justified the criticisms of Mr. Finlason, Mr. Gathorne Hardy, and others, and which prompt- ed conflict with Mr. Justice Blackburn, reappeared in more vivid ¢olors at Geneva. Of the offensive singularities of his deportment as ALABAMA CLAIMS. 93 Arbitrator, we shall have but too much necessity to speak in describing the acts of the Tribunal. MR. CHARLES FRANCIS ADAMS. In the American Arbitrator, Mr. Charles Francis Adams, the Tribunal had a member worthy of the companionship of Count Frederic Sclopis. In the United States, persons have been found so foolish as to reproach Mr. Adams because of the his- torical eminence of his father and of his grandfather, and even because of the intelligence and cultivation of his sons: as if it were a crime in a Republic for a father to have a good son, or a son a good father, or to live in the holy atmosphere of a succession of wise and virtuous mothers. Besides, if it be meritorious to rise to distinction from lowliness and poverty, it is not less so to resist and overcome the obstacles to. personal distinction created by parental station or wealth. In this, which is the only correct view of thessubject, all men are selfmade. The attributes of Mr. Charles Francis Adams are his own: distinguished parliamentary ca- reer in the Legislature of the State of Massachusetts and in the Congress of the United States,—literary merits of a high order as displayed in his“ Life and Writings of John Adams,”—able diplomatic repre- sentation of his Government in Great Britain during the whole dark period of our Civil War. He pos- sessed qualities, acquirements, and experience, general and special, which seemed to invite his appointment as American Arbitrator; and in the dischar¥e of the 94 THE TREATY OF WASHINGTON. duties of the office he did. honor to the Tribunal and to the United. States. The deportment of Mr. Adams as a member of the Tribunal was unexceptionably dignified, manly, cour. teous, even when compelled on more than one occa- sion'to notice rude acts or words of Sir Alexander Cockburn. While the conduct of the latter was too frequently on the comparatively low plane of the nis: prius attorney of a party before a court, the conduct. of the former was uniformly on the higher one of a member of the court and a judge. Hence, in the same degree that the personal influence of Mr. Adams, by reason of his recognized impartiality and integrity, was beneficial to the United States, on the other hand, the influence of Sir Alexander .Cockburn, by reason of his petulant irritability and unjudicial partisanship of action, was unfavorable to Great Britain. Such, then, were the Arbitrators representing the: five Governments SECRETARY OF THE TRIBUNAL. Their Secretary, Mr. Alexandre Favrot, was a gen- tlemanly person of literary attainments and profes- sion, actually residing in Berne, but born in the French-speaking Canton of Neuchatel, who had be- come perfectly acquainted with the English language bya sojourn of several years in England. AGENTS AND COUNSEL. The Agents of the two Governments, Lord Tenter- den and Mr. Bancroft Davis, were peculiarly qualified ALABAMA CLAIMS. 95 for the places they filled, both of them having served in similar capacities. in the foreign Department of their respective Governments, and both having assist- ed in the negotiation of the Treaty of Washington. Their friendly personal relations were advantageous in facilitating the movement of business before the Arbitration. Mr. Bancroft Davis deserves particular mention. Englishmen may criticise the American “ Case,” the labor of preparing which devolved chiefly on him; but its indisputable merit should draw to him the applause of every American. His literary accom- plishments, his previous diplomatic experience, his knowledge of men and things in Europe, and his de- voted and untiring attention to the public interests, were singularly useful to the United States. Of the persons or qualities of the Counsel of the United States, Mr. Morrison R. Waite, Mr. William M. Evarts, and the writer of this exposition, it would be unbecoming, as it is quite. superfluous, here to speak. In this rélation, however, it is proper to call atten- tion to two facts or incidents of national interest or concernment. In the first place, to the honor of the President of the United States be it said, in the selection of Coun- sel by him, as for instance in the invitation to Mr. B. R. Curtis, considerations of party were not allowed to exert controlling authority. Secondly, the Counsel themselves emulated the catholic spirit of the President in subordinating all 96 THE TREATY OF WASHINGTON. personal considerations to the single object of win- ning a great cause, the greatest ever committed to the charge of members of the Bar, and pending in the highest court ever organized, namely, the suit of the United States against Great Britain before the Tribunal of Arbitration. Although diverse in their habits of mind, and in their lines of experience and action, they acted as a unit in the determination. of advice to be given from time to time to the Govern- ment or its Agent ;—in the preparation of the printed Argument required by the Treaty, a document of five hundred pages, to be signed by them jointly ;—and in the subsequent preparation of a number of joint or separate Arguments in compliance with the require: ments of the Arbitrators. We may appeal to those Arguments as the tangible proof, at any rate, of our concurrent and united dedication, during nine months of continuous and solicitous thought or labor, to the discharge of our duty to our Government and our country, as Counsel under the Treaty of Washington. Sir Roundell Palmer alone appeared before the Tribunal as ¢0 nomine Counsel of Great Britain; but Mr. Mountague Bernard, elevated to the office of a law-member of the Queen’s Council, sat by his side at the Counsels’ table, and also Mr.Cohen. The hand of the latter was apparent in the estimates and ex- hibits presented to the Tribunal to guide them in the determination of the damages to be awarded to the United States. The recent promotion of Sir Roundell Palmer to the pre-eminent post of Lord Chancellor, by the title ALABAMA CLAIMS. 97 of Lord Selborne, is the appropriate consummation of a professional and parliamentary career of distin- guished ability and of unstained honor. In conduct- ing the deliberations of the House of Lords; in pre- siding over the High Court of Chancery; in partic. ipating in the affairs of the Cabinet; in guiding the conscience of the Queen through the embarrassments which now beset the English Church, we may be sure that Lord Selborne will join to the high authority of a skillful debater and a learned jurist the still higher authority of a sincerely conscientious statesman, so as to add incontestable force to Mr. Gladstone’s Ministry. And all that authority, we may confidently assume, will be used in the promotion 0: maintenance of amicable relations between Great Britain and the United States. This account of the personnel of the Arbitration would be imperfect without mention of the younger but estimable persons who constituted the staff of the formal representatives of the two Governments, namely: on the part of the United States, Mr. C. C. Beaman, as solicitor, and Messrs. Brooks Adams, John Davis, F. W. Hackett, W. F. Pedrick, and Edward TT. Waite, as secretaries; and on the part of Gréat Brit- ain, in the latter capacity or as translators, Messrs: Sanderson, Markheim, Villiers, Langley, and Hamilton. If the labors of these gentlemen were less conspicuous than those of the Agents and Counsel, they were scarcely less indispensable; and they all deserve a place in the history of the Arbitration. A single observation will close up these personal G 98 THE TREATY OF WASHINGTON. sketches, and bring us to the consideration of the ul- terior proceedings of the Tribunal. Occasionally, but not frequently, at the present day, we hear in the United States ungracious suggestions touching the personal deportment of Englishmen. No such observations, it is certain, are justified by any ex- perience of the city of Washington. The eminent persons, who, in the present generation, have repre- sented the British Government here, whether in per- manent or special missions, such as Sir Richard Pack- enham, Lord Napier, Lord Lyons, Sir Frederick Bruce, and Sir Edward Thornton, of the former class, and Lord Ashburton, the Earl of Elgin, Earl De Grey, Sir Stafford Northcote, Mr. Mountague Bernard, Sir John A. Macdonald, and Lord Tenterden, of the latter class, with the younger persons of their respective suites, and so many others who have visited this city, were unmistakably and with good cause popular with the Americans. Indeed, it is rather in Continental Europe, and especially in France, and by no means in the United States, that overbearingness or un- courteous deportment toward others is regarded as a trait of Englishmen. And it is agreeable to remember that, of the ten Englishmen with whom we of the United States came in daily contact at Geneva, and sometimes in circum- stances of contentious attitude of a nature to produce coolness at least, all but one were uniformly and un- exceptionably courteous in act and manner,—and that one Chief Justice of the Queen’s Bench. Is a holder of the office of Chief Justice emanci- ALABAMA CLAIMS.. 99 pated from all social bonds? It is not so with Chief Justices in America; nor was it so in former days in Great Britain, according to my recollection of the great judges, the Eldons, the Tenterdens, and the Stowells, who then presided over the administration of the common law, and of the equity and admiralty jurisprudence of England. Has the human race there degenerated? I think not: no possible judicial ten- ure of office could transform or deform a Roundell Palmer into an Alexander Cockburn. EFFORTS OF THE BRITISH GOVERNMENT TO OBTAIN REARGUMENT. The Tribunal and the persons attending it are now before us, and we resume its proceedings.at the point where we left them, namely, the session of the 27th of June, at the close of the address of Count Sclopis. The “Argument,” filed in behalf of the United States on the 15th of June, was prepared and deliv- ered in strict conformity with the stipulations of the Treaty. It was, in effect, the closing argument on the whole case, consisting of an abridged view of the facts on both sides as presented in their “Cases” and “ Counter-Cases,” with appropriate discussion of the questions of law which the claims of the United States involved. We followed the ordinary routine of judi- cial controversy, and the course of common-sense and of necessity, in giving a complete résumé of our Case in the final “Argument,” as contemplated and pre- scribed by the Treaty. The “Case” and “Counter-Case” of each side had 100 THE TREATY OF. WASHINGTON. sufficiently indicated the scope of inquiry or debate, and defined its limits. Within those ‘limits all perti- nent law, history, and reason lay at the command of the Counsel of the United States, as of those of Great Britain. If we, the Counsel of the United States, had neglected at the proper time to avail ourselves of the great stores of knowledge and of reason accessible to us, we could not expect to supply the deficiencies of our “Argument” by filing a new one as the means of response to, and commentary on, the British “ Argu- ment.” Such procedure was not authorized,—it was plainly forbidden,—by the Treaty. It avails nothing to say that the course prescribed by the Treaty is wnusual: such was the will of the two Governments. Doubtless they had good reasons, and among them, perhaps, was the very purpose of not having final “Arguments,’—that is, the third argu- ment in effect on both sides,—consist of a mere debate of reply and rejoinder betwixt Counsel. Great Britain had no cause or excuse for misappre- hension in this respect, although both Government and Counsel had, it is true, fallen into the. careless way of speaking of the “Summary” to be filed on the 15th of June. Nay, the paper filed by Great Britain is expressly entitled “Argument or Summary.” If argument and summary are synonymous terms, then it is tautology and bad taste to employ them both to designate the same document. If they mean different things, then it is misleading to employ the term sum- mary at all; for summary is not the language nor the sense of the Treaty. The Treaty requires each Agent ALABAMA CLAIMS. 101 to deliver “a written or printed arguméit showing the points and referring to the evidence upon which his Government relies.” Do these words imply a weak or imperfect argument? Do they define the number of pages to be occupied? Do they require either of the parties to leave out his strong points? Of course not. And if the Treaty said “summary,” —which it does not,—who shall say what is a fit swm- mary of some twenty volumes of evidence and of legal discussions, such as the two “Cases” and “ Counter- Cases” comprehend? The United States had the right to judge for themselves what exhibition of “points” and what “evidence” to submit to the Ar- bitrators. The British Government must have been dissatis. fied with its own argument. That is clear, and is the only sufficient explanation of the earnest and persist- ent efforts of Sir Roundell Palmer to obtain permis- sion to reargue the cause. There was no misappre- hension on the part of the British Government as to the more or less fullness of argumentation admissible in the so-called “Argument ° for there is notable similitude in this respect on both sides in the intro- ductory language of the final “Arguments” of the two Governments. We believed at the time, and all the subsequent occurrences tended to prove, that as the British Government had underestimated the force of our cause until the “Case” came into their hands, so they did not appreciate the amplitude of our law and our evidence until they read our “ Argument.” And strange, almost incredible, though it be, the 102 THE TREATY OF WASHINGTON. British Government would seem to have supposed that the United States were to discuss and confute the British “Counter-Case” in the American “Counter. Case ;” that is, to make reply to an elaborate argu. ment on the law and the facts [for such is the British “ Counter-Case” | without seeing it or possessing’ any knowledge of its contents. Manifestly, no complete and systematic final “Argument” on the part of the United States was possible without previous thought- ful knowledge of the British “Counter-Case.” And yet Sir Roundell Palmer, in expressing desire to an- swer our “Argument,” reasoned expressly on the im- plication that it ought to have been “a mere comple. ment of previous documents.” No such idea certainly is conveyed by the Treaty; and the implication is contrary to reason and the very nature of things. Sir Roundell Palmer entered on the question the moment it became reasonably certain that the Arbi- tration would proceed. On the 29th of June he pro- posed to-us, informally, to arrange for reargument of the cause, he to have until the end of the first week of August to prepare his Argument, and we to the end of August to prepare areply. The effect of this would be a suspension of the sittings for more than ten weeks, and a prolongation to that extent [and perhaps much more] of the absence of the American Arbitrator, Agent, and Counsel from their country. In other respects the proposition involved much in- equality; for it would have given to the British Counsel nearly six weeks at his own home in London, with books, assistants, translators, and printing-oflices - ALABAMA CLAIMS.. 103 at his command,—in a word, the whole force of the British Government at his back, in which to write and print his Argument; while it would have afforded to the American Counsel less than four weeks for the same task, in which to prepare and print our Argu- ment in both languages, with no libraries at hand, no translators, no printers, thrown wholly on our per- sonal resources away from home in the heart of Eu- rope. The Counsel of the United States desired no re- argument of the cause. We found nothing in the British Argument which we had not anticipated and disposed of to our own satisfaction. Not that we feared reargument: on the contrary, we felt such com- plete confidence in our rights as to be sure not to lose, and to hope rather to gain, by further discussion. Hence we did not desire nor seek reargument, al- though perfectly ready for it if called upon in con- formity with the Treaty. Our objections were to the delay and to the departure from the conditions of the Treaty. According to the explicit language of the Treaty, “the decision of the Tribunal shall, if possible, be made within three months from the close of the ar- guments on both sides ;” and the prescribed day “for the close of the arguments on both sides” is the 15th of June. Suppose that, by agreement of the two Gov- ernments,—it could not be done by Counsel without consent of their Governments,—“ the close of the arguments” had been postponed to the 31st of Au- gust, as proposed by Sir Roundell Palmer. In that 104 THE TREATY OF WASHINGTON. event the Arbitrators could not in reason or decency have commenced their deliberations until the 1st of September; they might well have taken, as they did in fact take, three months to complete their delibera- tions; and thus the Arbitrators and the American Counsel [but not the English] would have been de- tained at Geneva until the 1st of December, and there. fore would not have been able to reach their homes until January. But the reargument proposed by Sir Roundell Palmer was contrary to the Treaty, which in express terms closes the rights of the two Governments as to hearing, and admits further discussion on their part only at the requisition of the Arbitrators, “if they: desire further elucidation in regard to any point.” [Art.V.] Which manifestly intends, not reargument of the cause, but solution of any doubt, which, after the completion of the arguments, may occur to the Tri- bunal. No consent of Counsel could annul the stip. ulations of the Treaty. Of course, for reasons of right as well as expedien- cy, we declined to accede to the proposition of Sir Roundell Palmer. Nevertheless, at the meeting of the 27th, immedi- ately after the conclusion of Count Sclopis’s discourse, Lord Tenterden presented a motion on the part of Sir Roundell Palmer for leave to file a written argu- ment in answer to the Argument of the United States delivered on the 15th, and requesting adjournment. for that purpose until August. Sir Roundell Palmer read a brief of the points he desired to argue, which ALABAMA CLAIMS. 105 covered in effect all the points of the American “Case” and “ Argument,’”—-that is to say, it implied a com- plete reargument of the whole cause. It amounted to assuming or admitting that no sufficient or proper defense had yet been made by the British Govern- ment. ; We, in behalf of the United States, proceeded to prepare a reply to this motion. We took it up point by point, and showed by citation of pages that every one of the proposed points had been largely and amply discussed already by Great Britain in her “ Case,” “ Counter-Case,” and “ Argument ;” that noth- ing new could be said on these points; and that, in fact, the very object proposed was to reiterate ar- guments already adduced, but to do it in the inad- missible form of mere criticism of the American Ar- gument, And we cited the Treaty to show that the discussion proposed was contrary to the explicit con- tract of the two Governments. Meanwhile the Tribunal proceeded to decide, on suggestion of Mr. Adams, that the proposed argument was inadmissible, and that Counsel had no right to address the Tribunal unless required by it so to do for the elucidation of any point under the Sth article of the Treaty. At the next meeting of the Tribunal, on the 28th, Sir Alexander Cockburn presented a list of eight points covering in effect the points of the rejected motion of Sir Roundell Palmer, and moved that the Tribunal require of the Counsel of the two Govern- ments written or printed arguments on the said points; 106 THE TREATY OF WASHINGTON. but the Tribunal decided not at present to require such arguments. Whether the motion of Sir Alexander Cockburn was prompted by Sir Roundell Palmer, in order to afford to the latter the desired opportunity to criti- cise the American “ Argument,’—or whether it was a spontaneous one arising from the former’s not hav. ing studied the case, and his consequent ignorance of the fact that most of the questions proposed had al. ready been amply and sufficiently discussed by both Governments,—does not distinctly appear. Proba- bly both motives co-operated to induce the motion. Subsequent incidents throw some light on this point. Meanwhile it was plain to infer from the observa- tions of the other Arbitrators, and from their deci- sion, that they were better informed on the subject than Sir Alexander Cockburn. RULES CONCERNING THE CONFERENCES OF THE TRIBUNAL. The Tribunal next decided that the Agents should attend all the discussions and deliberations of the Conferences, accompanied by the Counsel, except in case where the Tribunal should think it advisable to conduct their discussions and deliberations with closed doors. The practical effect of this resolution, when connected with a resolution adopted at a subsequent meeting in regard to the course of proceeding, was to enable and require the Agents and Counsel to assist at the judicial consultations of the Tribunal: it being understood, of course, that none others should be pres- ent save the representatives of the two Governments. ALABAMA CLAIMS. 107 The Tribunal then authorized publicity to be given to its declaration and to the declarations ofthe two Governments, relative to the national claims of the United States: after which it adjourned to the 15th of July. Heretofore, either by intimation to the Secretary, and to the Agents and Counsel, or by formal resolu- tion, the Tribunal had signified its desire that the proceedings should not be committed to publicity, unless by the will of the respective Governments. Of course, reporters for the Press, and other persons not officially connected with the Arbitration, were ex- cluded from the sittings of the Tribunal. This re- serve or secrecy of proceeding was inconvenient to the many respectable representatives of the Press of London and New York, persons of consideration, who had come to Geneva for the purpose of satisfying the public curiosity of the United States and of England regarding the acts of the Tribunal; but was dictated, it would seem, rather by considerations of delicacy toward the two Governments, than by any reluctance on the part of the Arbitrators to have their action made known day by day to the world. It was a tri- bunal of peculiar constitution and character; its members were responsible in some sense each to his own Government, and also to the opinion, at least, of the litigant Governments; its proceedings were not purely judicial, but in a certain degree diplomatic; and a large part of the proceedings were in the na- ture not so much of action as of judicial consultation, which it might well seem unfit to communicate to the 108 THE TREATY OF WASHINGTON. general public as they occurred, although perfectly fit to be thus communicated to the respective Govern. ments. The Tribunal reassembled on the 15th of July. Down to this time all the proceedings of the Arbitra. tors were in their nature public acts, or they have been made public through the respective Govern. ments. All such acts were recorded in the protocols, Hereafter, we shall have, in addition to the acts of the Tribunal recorded in protocols, a series of pre- visional opinions, which were also printed and dis. tributed [or should have been] according to express order of the Tribunal. These opinions of the Arbi- trators, as well as their official acts, have already been made public by both Governments. But, incidentally to such acts and opinions, there was much oral debate from time to time at the suc. cessive Conferences of the Tribunal. At these de- bates, the Agents and Counsel of both Governments were required to assist, by resolution of the Tribunal. Assisting, we necessarily heard what was said by the respective Arbitrators. We were expected to hear, it is presumable, and also to understand: otherwise, why required to attend ? Are these debates, which occurred in the presence of so many persons, Agents, Counsel, and others, to be regarded as confidential and unfit to be disclosed now? Forget them, we can not, even if copious notes of the most important debates did not exist to aid and cor- rect mere memory. Is it, then, improper to speak of them? I think not. I conceive that any of us, who ALABAMA CLAIMS. 109 possess knowledge of those debates, have perfect right to refer to them on all fit occasions. I propose, however, on the present occasion, to ex- ercise this right sparingly, and that only in two rela- tions, namely, first, very briefly, where such reference involves mere formality, and is almost inseparable from acts recorded in the protocols; and, secondly, with a little more fullness at the close, and with some retrospection, for the purpose of explaining the final act of the British Arbitrator. DISCUSSIONS OF THE TRIBUNAL. At the meeting of the 15th, discussion arose imme- diately as to the method and order of proceeding to be adopted in the consideration of the subjects refer- red to the Tribunal. Mr. Steempfli then suggested that in his opinion the proper course was to take up the case of some vessel, as expressly. required by the Treaty, and consider whether on that vessel Great Britain was responsible to the United States. He had directed his own in- quiries in this way, and in this way had arrived at satisfactory conclusions. His plan had been to select a vessel,—to abstract the facts proved regarding her, —and then to apply to the facts the special rules of the Treaty. Debate on this proposition ensued between Sir Alexander Cockburn, on the one hand, and the rest of the Arbitrators on the other hand; the former de- siring to have preliminary consideration of “ princi- ples,” that is, of abstract questions of law, and the lat- 110 THE TREATY OF WASHINGTON. ter insisting that the true and logical course was that of the Treaty, namely, to take up a case, to examine the facts, and to discuss and apply the law to the facts thus ascertained, as proposed by Mr. Stempfii. Finally it was concluded, on the proposition of Count Sclopis, to follow substantially the programme of Mr. Steempfli, that is, to take up the inculpated ves. sels, serzatim, each Arbitrator to express an opinion in writing thereon, of such tenor as he should see fit, but these opinions to be provisional only for the pres. ent, and not to conclude the Arbitrator, or to prevent his modifying such opinion, on arriving at the point of participation in the final decision of the Tribunal. On the 16th, consideration of the programme of Mr. Steempfli was resumed. It consisted of the fol- lowing heads, which deserve to be set forth here, in order to’ show how thoroughly the subject had been examined and digested by Mr. Steempfli. “ (A.) Indications générales : J. Question & decider. 2. Délimitation des faits. 3. Principes généraux. “(B.) Décision relative 4 chacun des croiseurs. Observations préliminaires : 1. Le Sumter. (a) Faits. (6) Considérants, (c) Jugement.” [Follow the names of the other vessels, with similar sub-di- vision of heads of inquiry.] “(C.) Détermination du Tribunal d’adjuger une somme en blo. “(D,) Examen des éléments pour fixer une somme en bloc, “(E.) Conclusion et adjudication définitive d’une somme en bloc.” ALABAMA CLAIMS. 111 The completeness and exactness of this programme are self-evident; and by these qualities it really im- posed itself on the Tribunal, in spite of all objection, and of occasional temporary departures into other lines of thought. There will be occasion hereafter to remark on the precision and concision of the opin- ions of Mr. Steempfili. SIR ALEXANDER COCKBURN’S CALL FOR REARGUMENT. Sir Alexander Cockburn then renewed his propo- sition for a preliminary argument by Counsel, set- ting forth analytically the various objects of inquiry involved in the claims of the United States, and con- cluding as follows: “That, looking to the difficulty of these questions, and the conflict of opinion which has arisen among distinguished ju- rists on the present contest, as well a8 to their vast importance in the decision of the Tribunal on the matters in dispute, it is the duty, as it must be presumed to be the wish, of the Arbi- trators, in the interests of justice, to obtain all the assistance in their power to enable them to arrive at a just and correct conclusion. That they ought, therefore, to call for the assist- ance of the eminent counsel who are in attendance on the Tri- bunal to assist them with their reasoning and learning, so that arguments scattered over a mass of documents may be pre- sented in a concentrated and appreciable form, and the Tribu- nal may thus have the advantage of all the light which can be thrown on so intricate and difficult a matter, and that its pro- ceedings may hereafter appear to the world to have been char- “acterized by the patience, the deliberation, and anxious desire for information on all the points involved in its decision, with- out which if is impossible that justice can be duly or satisfac- torily done.” “To obtain all the asszstance in their power to en- 112 THE TREATY OF WASHINGTON. able them to arrive at a just and correct conclusion,” —“to call for the assistance of the eminent counsel who are in attendance on the Tribunal to assist them with their reasoning and learning.” Analyzing the proposition, and omitting the intro. ductory and concluding phrases of more or less irrel- evant and diffuse appeal to extraneous considera. tions, the essence of the proposition is to call on Counsel to assist the Tribunal, “so that arguments scattered over a mass of documents may be presented in a concentrated and appreciable form.” Now, passing over the looseness and inaccuracy of expression in this statement, it plainly is incorrect in substance. The considerations of law or fact neces- sary for the instruction of the Tribunal are not “ scat- tered over a mass of documents ;” they ave “ presented in a concentrated ... form” [we do not say apprecia- ble, because that is not a quality intelligible as ap- plied to form] in the three arguments of each of the Governments,—that is to say, “Cases,” “Counter- Cases,” and “ Arguments.” The proposition betrays singular confusion of mind on the part of a nisi prius lawyer and judge. The subjects or elements of ar- gument are, it is true, “scattered over a mass of doc uments ;” but it is quite absurd to apply this phrase to the Arguments themselves, in which the two Govy- ernments had each labored, we may suppose, to ex- hibit their views of the law and the facts in a man- ner to be readily comprehended and appréciated by the Tribunal. In the Arguments proper, filed on the 15th of June, each Agent ] had, as the Treaty requires, ALABAMA CLAIMS. 113 delivered “to each of the said Arbitrators and to the Agent of the other party a written or printed argu- ment showing the points and referring to the evi- dence on which his Government relies.” These “ Ar- guments” were freshly in the possession of the Arbi- trators. To call on Counsel, for the reason assigned, to reargue the matters therein argued, was just as unreasonable as it would be for a judge presiding at a hearing jn common law, equity, or admiralty, to call on the counsel, who have just finished their ar- guments, to do, something for the “assistance” of the Court,—it would be difficult to ‘see what,—to the end “that arguments scattered over a mass of documents may be presented in a concentrated and appreciable form.” And if in this case such arguments had been filed in print, it would be natural for counsel to say that they had just done the thing required of then, as the Court would perceive if it would please to read those arguments: which, in the present case, it would seem, Sir Alexander had neglected to do; and, instead of doing it, he had got bewildered by plung- ing unpreparedly into the “ mass of documents” filed by the two Governments. After discussion, the Tribunal decided to proceed with the case of the /orida, according to the pro- gramme of Mr. Stzmpfli, that is, in effect, overruling the motion of Sir Alexander Cockburn. The Tribunal, it would seem, could not perceive the advantage of discussing speculative general ques- tions, as in a moot court; and, more especially, ques- tions of law, which had already been discussed abun- H 114 THE TREATY OF WASHINGTON. dantly in the appropriate place and time, that is, in the successive Cases and Arguments of the two Gov. ernments. CASE OF THE ‘‘FLORIDA” DECIDED. The Axbitrators then met on the 17th, and pro. ceeded to take up the case of the Plorida. On motion of Sir Alexander Cockburn, it was or. dered by the Tribunal that the provisional opinions or statements to be read by the Arbitrators should be printed, and distributed to the Arbitrators and to the Agents and Counsel of the two Governments. Mr. Steempfli’s opinion or statement had been read already, and was in print. After some incidental discussion among the Arbi- trators, Sir A. Cockburn began the reading of his opinion on the case of the Florida. The Tribunal met again on the 19th, and Sir Alex. ander Cockburn proceeded to read another portion of his opinion in the case of the PVorida. Then, after some debate, caused by irregularities of speech or conduct on the part of Sir Alexander, Mr. Adams proceeded to read the commencement of his opinion in the matter of the Florida. On the 22d, the case of the Florida was concluded. Sir Alexander Cockburn and Mr. Adams completed the reading of their opinions, and the Baron d'Itajuba and Count Sclopis both read theirs. The result was to convict Great Britain of culpable want of due diligence in the matter of the HVorida by the con- current provisional opinions of four of the Arbitra- ALABAMA CLAIMS. 115 tors, with a dissenting opinion from the British Ar. bitrator. The Florida, it will be remembered, was a steam gun-boat, built at Liverpool by Miller & Sons, on contract with the Confederate agent Bullock, for the warlike use of the Confederates. Miller & Sons falsely pretended that she was being built for the Italian Government by arrangement with Messrs. Thomas & Brothers of Liverpool and Palermo, one of whom expressly and fraudulently confirmed the false representation of Miller & Sons. The British Gov- ernment, although repeatedly warned of the dlegal character of this vessel by the diplomatic and con. sular authorities of the United States, shut its eyes to the transparent falsehood and fraud of Miller & Sons and of Thomas, and took no proper and sufii- cient measures to investigate her character and to prevent the violation of the laws of the kingdom. She sailed from Liverpool without obstruction, cleared by the name of Oreto, unarmed, it is true, but ac- companied by another vessel containing her arma- ment, called the Bahama. The Oreto next makes her appearance at Nassau, where she proceeded further to equip and arm as a man-of-war. The naval authorities at Nassau were unanimous in denouncing her illegal character, but the civil authorities, perverted by their sympathies, could with difficulty be persuaded to act against her. When they did act, she was acquitted by the local Admiralty Court, in the teeth of the facts and the law, either corruptly, or with inexplicable ignorance 116 THE TREATY OF WASHINGTON. of their duty on the part of the Court and of the attorney representing the Government. No appeal was taken by the Government. The Oreto then threw off all pretensions of. inno. cence; she openly completed her: equipment, arma. ment, and crew, partly at one place and partly: at an. other, under the eye of the colonial authorities; and proceeded to cruise and to make prizes as an avowed man-of-war by the name of //orida. Meanwhile, with the illegality of her operations in England, and also in the Bahama Islands, now notorious and admitted, she continued to come and go in British ports, and to obtain supplies there as her base of operations, without interference on the part of the British Government. On these facts, the three neutral Arbitrators and Mr. Adams convicted the British Government of want of due diligence, and of disregard otherwise of the Rules of the Treaty, notwithstanding that the Florida had entered and remained some time in the Confed- erate port of Mobile. Their several opinions were precise, definite, clear, and with positive conclusion, as to all the material points of the case, in favor of the United States. Sir Alexander Cockburn’s adverse opinion was a verbose special plea—which, while admitting all the material facts charged, and conceding the palpable fraud practiced by Miller & Sons and Thomas,—the original guilt of the vessel,—the absurdity of the ac tion of the Admiralty Court of Nassau,—the illegal equipments at Nassau and elsewhere in British ports, —and the continued use of British ports as a base of ALABAMA CLAIMS. 117 operations,—could not discover in these incidents any negligence or any violation of neutrality on the part of the British Government. Sir Alexander chose not to remember that the. affair of the Oreto or Florida was, from the beginning to the end, according to the confession of Lord John Russell himself, a scandal and a reproach to the laws of Great Britain, and still more, we may add, a scandal and a reproach to cer- tain of the British Ministers, of whose honor Sir Alex- ander assumes to be the special champion. When Count Sclopis had concluded the reading of his opinion, Sir Alexander Cockburn renewed his mo- tion for the hearing of Counsel; but was again over- ruled by the Tribunal, which assigned for its next Conference the consideration of the case of the Ala- bama. SPECIAL ARGUMENTS ORDERED ON CERTAIN POINTS. The Tribunal met again on the 25th; and the Bar- on @’Itajubé then made a precise and formal propo- sition, calling on the Counsel of Great Britain fora eave or printed Statement or Argument in elucida- tion of three questions of law, namely : “1, The question of due diligence treated in a general man- ner. “2. The effect of commissions possessed by Confederate ves- sels of war which had entered into British ports. “3. The supplies of coal furnished to Confederate vessels in British ports.” And with liberty to the Counsel of the United States to reply either orally or in writing as the case may be. This proposition was adopted by the Tribunal. 118 THE TREATY OF WASHINGTON. In so far as regards the first point, the call for Ar. gument was obviously induced by a desire to put an end to the unseemly importunities of Sir Alexander Cockburn; for the Arbitrators had in effect again and again declared that in their judgment there was no occasion for elucidation or further discussion of the general question of due diligence; that the Tri. bunal did not desire any theoretical discussions of abstract questions; and that the practical question of due diligence had been already discussed to satiety in the several Cases and Arguments filed by the re. spective Governments. We shall perceive in the se- quel how well-founded were the objections of the Tri- bunal in this respect; and how devoid of any useful object or purpose had been the ill-digested calls of Sir Alexander Cockburn. To the other questions propounded by the Baron dItajub4, no objection could be made: they were fit subjects of the “elucidation” contemplated by the Treaty. . CASE OF THE ‘‘ ALABAMA” DECIDED. The Arbitrators then proceeded to read alphabet- ically their opinions in the case of the Alabama,—that is to say, Mr. Adams, Sir Alexander Cockburn, Count Sclopis, and Mr. Stempfli read argumentative state- ments at length, and the Baron d’Itajubd expressed his concurrence in the statement made by Sir Alex- ander Cockburn. In this case the Arbitrators were unanimously of opinion, —the British Arbitrator: equally with his ALABAMA CLAIMS. 119 colleaguegy—that the British Government had been guilty of culpable want of the due diligence required, either by the law of nations, the Rules of the Treaty, or Act of Parliament. In fact, this vessel had been built and fitted out in Great Britain in violation of her laws, with intent to carry on war against the United States; evidence of this fact had been submitted, sufficient, in the opinion of the Law Officers of the Crown, to justify her de- tention; notwithstanding which, by reason of absence of due vigilance, and not without suspicion of conniv- ance on the part of public officers, and with extraor- dinary delay in issuing necessary orders, she was suf: fered to go unmolested out of the immediate jurisdic- tion of the British Government. Her armament, sup- plies, and crew were all procured from Great Britain. And, in like violation of law, she was received and treated as a legitimate man-of-war in the colonial ports of Great Britain. Sir Alexander Cockburn was constrained to admit want of due diligence as to the case of the Alabama, in three distinct classes of facts, each one of which sufficed to establish the responsibility of the British Government. If Sir Alexander had any good cause to accuse his colleagues, as he did, of precipitancy and want of knowledge or practice of law, because they came to provisional conclusions in the case of the Mlorida without waiting to hear Sir Roundell Palmer, surely the British Government had reason to attach the same censure to him in the case of the Alabama. 120 THE TREATY OF .WASHINGTON. How could he presume to condemn Great Britain in this behalf, ignorantly, blindly, in the dark, and with- out assistance of the “reasoning and learning” of the. eminent Counsel in attendance on the Tribunal ? But even Sir Alexander Cockburn could no longer resist the force of conviction, nor help admitting the truth of the allegation of the United States, their Agent and Counsel, imputing culpable negligence to his Government. The United States had, not with. out cause, brought the British Government to the bar of public opinion and of the Tribunal of Arbitration; himself now confessing it, their Agent and Counsel had not been engaged, as he had charged, in prefer. ring “false accusations, unworthy of them and of their Government.” And if the proved and admit. ted truth of these accusations implies impeachment of the personal honor of any British Minister or Min. isters, that is not the fault of the American Govern- ment, its Agent or Counsel, but of the British Gov- ernment, whose violation of neutrality is at length conceded even by Sir Alexander Cockburn. In the ultimate judgment of al] the Arbitrators, the condemnation of the Alabama and the Florida carried with it the condemnation of their respective tenders, namely, the Zuscaloosa, the Clarence, the Tu- cony, and the Archer. CASE OF THE “SHENANDOAH” DECIDED. There remained but three vessels as to whose re- sponsibility we had reason to have hopes, namely, the Georgia, the Retribution, and.the Shenandoah ; ALABAMA CLAIMS. 121 and with confident expectation only as to the Shen- andoah after she left Melbourne. Without pausing here to consider particularly the Retribution and the Georgia, suffice it to say that eventually they were rejected; but the Shenandoah, after special explana- tions in writing submitted by the Counsel of the two Governments, was held responsible by vote of three of the Arbitrators, Count Sclopis, Mr. Steempfli, and . Mr. Adams. As the Shenandoah, after increasing her armament at Melbourne, had made many captures at the very close of the war, when her cruise could not be of any possible advantage to the Confederates, her exoneration by the Tribunal would have been: justly regarded by us as an act of great injustice to the United States. THE SPECIAL ARGUMENTS. It remains next to speak of the successive Argu- ments of Counsel before the Tribunal, as well those heretofore indicated as others called for in the sequel. On the 25th of July, as we have seen, the Tri- bunal voted to require from the Counsel of Great Britain a written or printed Argument touching cer- tain points. On the 29th, Lord .Tenterden announced that he had delivered the required Argument of the British Counsel to the Secretary of the Tribunal. The copy thus delivered was in manuscript. As subsequently printed, it consists of 43 folio pages. The replies of the American Counsel, each of them addressing the Tribunal separately, were. presented 122 THE TREATY OF WASHINGTON. on the 5th, 6th, and 8th of August, consisting alto. gether of 47 pages of the same folio impression. dt would not be convenient, and it does not come within my plan, to discuss the Arguments of Counsel on either side, except where some particular point of such Argument calls for notice. Hence, as in the- case of the general Arguments of April and of J une, so as to the special Arguments called for by the Tri- bunal, it will be sufficient to enumerate them, and to give to them their proper place in the history of the Arbitration. The first Argument of Sir Roundell Palmer, how- ever, calls for some observations. Of his 43 pages, 31,—say three quarters,—are de- voted nominally to the question of due diligence gen- erally considered. Now, in the previous regular Arguments, each Gov- ernment had fully discussed this question, and had, as if by common consent, concluded in express terms that it neither required nor admitted any further dis- cussion. That conclusion was correct. Accordingly, most of these 31 pages are occupied with matters re- motely, if at all, connected with the question, What constitutes due diligence ?—such as [copying, word for word, sundry marginal notes] rules and principles of international law; express or implied engagements of Great Britain ; effect of prohibitory municipal laws; the three Rules of the Treaty; the maxims cited by the United States from Sir Robert Phillimore on the question, Otvitas ne deliquerit an cives; for what pur- ' pose Great Britain refers to her municipal laws; doe- ALABAMA CLAIMS. 123 trine of Tetens as to municipal laws in excess of ante- cedent international obligations; the arguments as to the prerogative powers belonging to the British Crown; the true doctrine as to the powers of the Crown under British law; the British Crown has power by common law to use the civil, military, and naval forces of the Realm to stop acts of war within British territory; the preventive powers of British law explained; examination of the preventive pow- ers of the American Government under the Acts of Congress for the preservation of neutrality :—and so of diverse other questions discussed “by Sir Roundell Palmer under the head of due diligence generally considered. Very generally, it is clear. Nay, 13 of the 31 pages devoted to the question of “due dil- igence generally considered” are occupied with ex- amination of the laws and political history of the United States, in continuance and iteration of the groundless and irrelevant accusations of the Ameri- can Government introduced into the British Case and Counter-Case. Now Sir Roundell Palmer is, omniwm consensu, at the head of the British Bar in learning, intelligence, and integrity; and we may be sure that arguments addressed by him to the Tribunal would be the best that such a lawyer, so high in mental and moral qual- ities, or that any living lawyer, be he who he may, could devise or conceive. The British Arbitrator had gone “clean daft” in the hope deferred of hearing him. He himself had been earnestly seeking to be heard by the Tribunal for more than a month; he had com. 124 THE TREATY OF WASHINGTON. templated being heard for many months. And the result of all this meditation, and of all this earnest desire to serve his country, was a series of arguments mostly immaterial to the issue, as the final judgment of the Tribunal plainly shows, and coming in after the main question had been actually settled in the cases of the Alabama and the Florida. That is to say,— and it is in this relation the point is introduced,— the claims of the United States rested on a basis which all the great forensic skill and ability of Sir Roundell Palmer could not move,—which commend- ed itself to the éonfidence of the neutral Arbitrators, —and which even extorted the reluctant adhesion of the prejudiced British Arbitrator. Subsequently, on requirement of the Arbitrators, we discussed, in successive printed Arguments, the special question of the legal effect of the entry of the Florida into Mobile; the question of the recruit- ment of men for the Shenandoah at Melbourne; and the question of interest as an element of the indemni- ty due to the United States. QUESTION OF DAMAGES. Meanwhile, the Tribunal had voted definitively on the question of the liability or non-liability of Great Britain for the acts of the cruisers named in the “Case” of the United States, in the terms which will appear in explaining their final judgment. They had also voted on several of the incidental questions, such as the abstract question of due diligence, entry into Confederate ports, commission, and supply of coal, ALABAMA CLAIMS. 125 raised by successive requirements of the Tribunal. They had thus arrived at the point of discussing matters, which only affected the form and the amount of the judgment to be rendered against Great Britain. And here, on the 26th of August, the Tribunal voted to deliberate with closed doors, in spite of the objection of Sir Alexander Cockburn. Thenceforth, and until the final Conference of the 14th of September, the Tribunal sat with closed doors, that is, without the assistance of the Agents and Counsel. Down to this time, the Agent, Counsel, Solicitor, and Secretaries of the United States had been assid- uously occupied in preparing, copying, translating, and printing Arguments and other documents for the use of the Tribunal. And even when the regular dis- cussions were ended, we had still to attend to the laborious task of preparing schedules of the claims of the United States in response to argumentative estimates filed by the British Government. FINAL JUDGMENT OF THE TRIBUNAL. On the 9th of September the Arbitrators defin- itively adopted the Act of Decision, which had been considered at the preceding Conference, and ordered it to be printed. They also resolved that the Decis- ion should be signed at the next Conference, to be held with open doors, and they then adjourned to the 14th. 126 THE TREATY OF WASHINGTON. ‘ANNOUNCEMENT OF THE DECISION. On Saturday, the 14th of September, the Tribunal assembled at the hour of adjournment,—half-past twelve o'clock. The Hall of Conference was crowded at this hour with the Arbitrators and the gentlemen attached to the Arbitration, the ladies of their respect- ive families, the members of the Cantonal Govern- ment, representatives of the Press of Switzerland, the United States, and Great Britain, and gentlemen and ladies among the most estimable of the private cit- izens of Geneva. The day was beautiful; the scene imposing and impressive. But the British Arbitrator, Sir Alexander Cockburn, remained unaccountably ab- sent, while curiosity grew into impatience, and impa- tience into apprehension, until long after the pre- | scribed hour of meeting, when the British Arbitrator finally made his appearance. The official action of the Conference commenced with the accustomed formalities. The President then presented the Act of Decision of the Tribunal, and directed the Secretary to read it in English, which was done: after which duplicate originals of the Act were signed by Mr. Adams, Count Frederic Sclopis, Mr. Steempfli, and Viscount of Itajubé; and a copy of tite Decision, thus signed, was delivered to each of the Agents of the two Governments re- spectively. Another original was subscribed in like manner, to be placed, together with the archives of the Tribunal, among the archives of the Council of State of the Car- ton of Geneva. ALABAMA CLAIMS, 127 Sir Alexander Cockburn, as one of the Arbitrators, declining to assent to the Decision, presented a state- ment of his “Reasons,” which, without reading, the Tribunal ordered to be received and recorded. Thereupon, in an appropriate address, Count Sclopis declared the labors of the Arbitrators to be finished, and the Tribunal dissolved. The discourse of Count Sclopis was immediately followed by salvos of artillery, discharged from the neighboring site of La Treille by order of the Can- tonal Government, with display of the flags of Geneva and of Switzerland between those of the United States and of Great Britain. It is impossible that any one of the persons present on that occasion should ever lose the impression of the moral grandeur of the scene, where the actual rendition of arbitral judgment on the claims of the United States against Great Britain bore witness to the generous magnanimity of two of the greatest na- tions of the world in resorting to peaceful reason as the arbiter of grave national differences, in the place of indulging in baneful resentments or the vulgar ambition of war. This emotion was visible on almost every countenance, and was manifested by the ex- change of amicable salutations appropriate to the separation of so many persons, who, month after month, had been seated side by side as members of the Tribunal, or as Agents and Counsel of the two Governments; for even the adverse Agents and Coun- sel had contended with courteous weapons, and had not, on either side, departed, intentionally or con- 128 THE TREATY OF WASHINGTON. sciously, from the respect due to themselves, to one another, and to their respective Governments. CONDUCT OF THE BRITISH ARBITRATOR. To the universal expression of mutual courtesy and reciprocal good-will there was but one exception, and that exception too conspicuous to pass without notice, The instant that Count Sclopis closed, and before the sound of his last words had died on the ear, Sir Alexander Cockburn snatched up his hat, and, with- out participating in the exchange of leave-takings around him, without a word or sign of courteous rec- ognition for any of his colleagues, rushed to the door and disappeared, in the manner of a criminal escaping from the dock, rather than of a judge separating, and that forever, from his colleagues of the Bench. It was one of those acts of discourtesy which shock so much when they occur that we feel relieved by the disap- pearance of the perpetrator. SIR ALEXANDER COCKBURN’S REASONS FOR DISSENT. The British Arbitrator, who, so frequently in the course of the Conferences, acted as a party agent rather than a judge, had been occupying himself in the preparation of a long Argument on the side of Great Britain, in which he throws off the mask, and professedly speaks as the representative of the Brit- ish Government. He withheld this Argument from the knowledge of the Tribunal at the proper time for its presentation as the “Reasons” of an Arbitrator. At the last moment,—without its being read to the ALABAMA CLAIMS. 129 Tribunal, or printed for the information of Agents and Counsel, as a resolution of the Tribunal, adopted on his own motion, required,—he presents this Argu- ment as his “Reasons . . . for dissenting from the Decision of the Tribunal of Arbitration.” The title of the document is a false pretense, as we shall con- clusively show in due time: the act was a dishonor- able imposition on the Tribunal, and on doth Gov- ernments, Great Britain as much as the United States. ; In point of fact, the document filed by Sir Alexan- der was in large part of such a character that, if it had been offered for filing at any proper time, and with opportunity to persons concerned to become ac- quainted with its contents, it must [as declared by the Secretary of State of the United States in his dis- patch to the American Agent of October 22, 1872] have been the plain duty of the American Agent to object to its reception, and of the Tribunal to re- fuse it, as calculated and designed to weaken the just authority of the Arbitrators, as insulting to the United States in the tenor of much of its contents, and as in- jurious to Great Britain by its tendency to raise up obstacles to the acceptance of the Award, and to pro- duce alienation between the two Governments. The document consisted, in part, of the opinions of Sir Alexander Cockburn on the several vessels, copies of which he ought to have delivered in print to the Agent and Counsel of the United States, in conform- ity with his awn resolution, but which he failed to do, thus depriving the American Government of ad- i , 130 THE TREATY OF WASHINGTON. vantages in this relation to which it was entitled, and which the British Government in fact enjoyed by reason of the more loyal conduct of the other Ar- bitrators. He discusses these vessels with great prolixity, St) as to fill 180 pages folio letter-press, while the corre- spondent opinions of all the other Arbitrators united occupy only 66 pages, the difference being occasioned partly by the number of letters and other papers in- terjected into his opinions, and partly by the diffuse. ness and looseness of his style and habit of thought, as compared with theirs. The residue of Sir Alexander’s document, consist- ing of 116 pages, is devoted partly to the discussion of the special questions, in all which he is inordinate- ly prolix, and partly to a general outpouring of all the bile ‘which had been accumulating on his stom- ach during the progress of the Arbitration. SIR ALEXANDER COCKBURN’S ‘‘ REASONS.” Let me dispose once for all of these “Reasons” and their author, in order to arrive at subjects of more importance and interest. The matter of the docu- ment, and the consideration it has received in En- bland, require that it should be examined and judged from an American stand-point. Apart from the unjudicial violence and extrava- gance of these “ Reasons,” it is remarkable how in- consistent, how self-contradicting, how destitute of logical continuity of thought, how false as reasoning, as well as irrelevant, is most of the matter. ALABAMA CLAIMS. 1381. The Reasons are on their face, and as the London Press could not fail to perceive and admit, “an elab- orate reply to the American Case” [that is to say, an advocate’s plea], “rather than a judicial verdict.” | Lelegraph, September 25. | It is, in truth, a mere nisi préus argument, not up to the level of an argument in danc; inappropriate to the character of a judge; and which might have been quite in place at Geneva as an “Argument” in the cause, provided any British Counsel could have been found to write so acrimoniously and reason so badly as Sir Alexander, To establish these positions, it would suffice to cite some of the criticisms of the London Press. The Zélegraph [September 26] argumentatively. demonstrates the palpable fallacy of the reasoning by which Sir Alexander endeavors to excuse the ad- mitted violation of law and the want of due dil: gence of the British Government.in the case of the Florida, especially at Nassau. The News [September 26] condemns and regrets the declaration made by Sir Alexander in his “ Rea- sons” twice, where he speaks of himself “sitting on the Tribunal as in some sense the representative of Great Britain,” and contrasts this with the sounder view of his duty expressed in Parliament by Lord Cairns. Compare, now, this observation of the News with certain pertinent remarks of the Zélegraph [Septem- ber 25]. Speaking of Mr. Adams, it says: “He put aside the temper of the advocate when he took his 132 THE TREATY OF WASHINGTON. seat on the Bench, and he performed the difficult duty with the impartiality of a jurist and the delicate honor of a gentleman.” And this well-merited commenda- tion of Mr. Adams is prefatory to the exhibition of Sir Alexander Cockburn retaining still “the temper of an advocate when he took his seat on the Bench,” and not performing his duties “with the impartiality of a jurist and the delicate honor of a gentleman,” but to the contrary, as shown by his deportment at Gene- va, and authenticated under his own hand in these “ Reasons.” There is no escape from the dilemma: it was hou- orable to Mr. Adams to act as a “judge” at Geneva; and, of course, to act as a mere “advocate” was dis- honorable to Sir Alexander Cockburn. And thus we may comprehend at a glance, what seems so-remarkable to the Zélegraph [September 26], that when we pass from the printed opinions of the three neutral Arbitrators, whose “fairness” nobody disputes, and from those of the impartial “jurist” and honorable “ gentleman,” Mr. Charles Francis Ad- ams, to the “Reasons” of Sir Alexander Cockburn, “We seem to go into another climate of opinion. ... We find different premises, a different bias, a differ- ent logic, and we might almost say different facts.” So it is, indeed; and the explanation is obvious. The “ dimata” se Count Sclopis, Baron d’Itajubd, Mr. Steempfli, and Mr. Adams, was that of fairness, judl- cial dignity, impartiality, gentlemanly honor, such as belonged to their place as Arbitrators: the “climate” of Sir Alexander Cockburn was that of a self-appoint- ALABAMA CLAIMS. 133 ed “advocate,” making no pretensions to “fairness” or “impartiality,” but, with the “premises,” “bias,” “log- ic,” and “facts” of such an advocate, drawing up a paksionaté, rhetorical plea, as the oficions “ represent- ative of Great Britain.” As such “representative of Great Britain,” if he be not promptly disavowed by the British Government, it will be found that his “Reasons” lay down many positions which may somewhag embarrass present or subsequent Ministers. The News notices numerous contradictory opinions or conclusions which appear in the “Reasons.” In one place Sir Alexander. complains that any Rules are laid down by the Treaty, and in another place ex- presses the conviction that it is well to settle such questions by Treaty Rules. “He complains... that the Arbitrators have not been left free to apply the hitherto received principles of international law, and that they have; that rules have been laid down, and that they have not; that definitions have been framed, and that they have not been framed.” Here is most exquisite confusion of ideas. It is the very same extraordinary and characteristic method of thinking and writing which Mr. Finlason had ex- hibited at length, and which Mr. Gathorne Hardy pointed out-in the case of the Queen against Nor- ton: the “inflammatory statements,”—the “extraju- dicial denunciation,” the “extra-judicial declamation,” the going “from one side to another,” and the say- ing “it is” and.“it is not” upon every point of law. The perfect similitude of these repulsive features of 184 THE TREATY OF WASHINGTON. the “Charge” and the “Reasons” can not be accident- al: it must have its cause in idiosyncrasies of mental constitution. This vacillation or contradictoriness of opinion, which strikes the News so much, pervades the “ Rea- sons.” Thus Sir Alexander admits want of due diligence in the matter of the Alabama, and yet stoutly denies that the United States had any good cause of com- plaint against Great Britain. He insists that Minis. ters were to officiate within the limits of municipal law, and yet admits that such is not the law of na- tions, the force of which he also recognizes. He de- nies that the Ministers can lawfully exercise any pre- rogative power in such matters, and yet justifies and approves the exercise of it [although too late] in the case of the Shenandoah. The News also calls attention to Sir Alexander's “ disaffection to the conditions under which he dis- charges his task, a task voluntarily accepted with full knowledge of those conditions.” “He criticises adversely the Treaty of Washington: ... these criti- cisms seem to us to be eatra vires. A derived author- ity ought surely to respect its source. ... Other con- siderations than those laid down for him have certain- ly been present to the mind of Sir Alexander Cock- burn,” ete. There is manifest justness in this criticism. What business had Sir Alexander to indulge in continual crimination of the Treaty of Washington, while act- ing as Arbitrator under it, and possessing no pow- ALABAMA CLAIMS. 1385 er or jurisdiction except such as the Treaty confers? To do so was indecent in itself, and could have no ef: fect other than to embarrass the British Government. With his habitual inconsistency of thought, to be sure, he advises submission to the judgment of the Arbitrators, while exhausting himself in efforts to shake its moral strength and that of the Treaty. The Times [September 28] plainly sees that the “Rea- sons” of Sir Alexander “will be duly turned to ac- count by Opposition critics.” And perhaps that was one of the objects Sir Alexander had in view, in thus usurping the function to judge the Treaty under the cover of acting as Arbitrator to judge the specific questions submitted by the Treaty. The Zimes admits that the “severity of the criti- cism passed by the Chief Justice on the United States and their Agents, and even on his colleagues, may, from a diplomatic point of view, be some ground for regret ;”... that “perhaps he was too ready to ‘con- sider himself the representative of England;” that. “perhaps he takes more than a judicial pleasure” in one argumentative suggestion; and that “he dwells, perhaps, with something too much of the delight of an advocate” on some other point; and in each one of these admissions, qualified as they are, we perceive recognition of the fact that, in his “Reasons,” Sir Alexander does not speak as an international Arbi- trator, or manifest the qualities which ought to char- acterize a Chief Justice. The WVews indicates other singular traits of “irrel- evance” and confusion of mind in the “ Reasons.” 136 THE TREATY OF WASHINGTON. Examination of the substance of the “ Reasons” leads to still more unfavorable conclusions. While the Chief Justice exhausts himself in fault- finding with the Counsel of the United States, it is observable that he seldom, if ever, grapples with their arguments, but shoots off instead into epithets of mere vituperation. Indeed, if it were worth while, it would be easy to show that he did not really read that which he so intemperately criticises. And when he under- takes to deal with the text, it is only in the disingen- ‘uous manner of picking out here and there a detached paragraph or phrase for comment, regardless of the context or the general line of argument. Nevertheless, when he has occasion to differ in opinion with the Counsel of the United States, such is the perverted state of passion and prejudice in which he thinks and writes, that he imputes to us in- tention to practice on the “supposed credulity and ignorance” of the Tribunal. We were not amenable in anywise to the British Arbitrator; but, if we had been barristers in his own Court of whom such things were said by him, it would have been an example of judicial indecency to parallel which it would be necessary to go back to the days of infamous judges like Jeffreys or Scroggs. Let Sir Alexander be judged by his own rule. Cramming, as he did at Geneva, in the preparation of his “ Reasons,” he examined superficially and wrote precipitately: in consequence of which he copied from the Arguments for the British Government pal- pable errors, which were exposed and corrected in ALABAMA CLAIMS. 137 the Arguments for the United States. Thus it is that he falls into the mistake of asserting a false construc. tion of an Act of Congress, by having a mutilated text before him, quoting a part of a sentence, which may or may not justify his construction, and sup- pressing the context and the sequent words of the same sentence, which clearly contradict his construc- tion. Acting on his own theory of blind prejudice, we should be compelled to assume that on this occa- sion he perpetrates a deed of deliberate bad faith, with intention to practice on the “supposed credulity and ignorance” of the people of Great Britain. Why did the British Arbitrator put together such a mass of angry, irrelevant, confused, and contradict- ory declamation against the American Government, and denunciation of its Agent and Counsel? To vin- dicate the honor of British statesmen, Sir Alexander declares, in a speech at a banquet in London [ Novem. ber 4th], against unjust charges coming from the American Government. But that should have been done by speech or otherwise, as Str Alexander Cock- burn professedly, and in England, and not under the false pretense of an Arbitrator at Geneva. And vi- olent denunciation of our Case or Arguments consti- tutes no answer to our charges. And in such vituper: ation of the American Agent and Counsel, Sir Alexan- der not only throws off all pretense of judicial charac- ter, and assumes the tone of a mere advocate, but he acts the part of an advocate in temper and manner such as the proper Counsel of the British Govern- ment could not have descended to. Indeed, the 138 THE TREATY OF WASHINGTON. “Reasons” proceed from beginning to end on the hy. pothesis that the British Agent and Counsel had neg. lected their duty ; that neither the Case, Counter-Case, nor Argument of the British Government, by whom- soever prepared, nor the several supplementary Argu- ments filed by Sir Roundell Palmer in his own name, contained a proper exhibition of the defenses of the British Government; and more especially that Agent and Counsel alike had all been false to their country’s honor in not vindicating it against the charges of the Americans. In view of-this dereliction of duty, Sir Alexander volunteers to supply, more swo, the place of Counsel, and to respond to the American Agent and Counsel. Against what charges? The existence of an un- friendly state of mind toward the American Govern- ment in Parliament, or in some of the British Colo- nies at the period in question? Sir Alexander ad- mits the fact in stronger terms than we had charged it.—Failure to exercise due diligence in arresting the equipment of Confederate cruisers to depredate on our commerce? Sir Alexander admits and proves it, under three heads, as to the Alabama, and only es- capes the same admission as to the /Vorida by tech- nicalities as unsatisfactory to impartial minds in En. gland as in America—As the London Télegraph says, in another relation, Sir Alexander, whilst indignantly protesting against our accusation of British officers, admits their failure to do their duty, which is the foundation of the accusation. But for that marvel- ous confusion of ideas which distinguishes Sir Alex- ALABAMA CLAIMS. 1389 ander, even he must have seen that, in confessing and proving the guilt of his Government, he estops him. self from denying the justice of the accusation pre- ferred by the United States. But the point of honor was considered when the Treaty was signed. How strangely Sir Alexander forgets the attitude in which this objection stands in Lord Russell’s correspondence with Mr. Adams. If there was any question of honor in the controversy, that it was which forbade a treaty of arbitration, as Lord Russell constantly maintained. But three suc- cessive Foreign Ministries, represented by Lord Stan- ley, Lord Clarendon, and Lord Granville, had rightly decided that the question at issue did not involve the honor of the British Government. Sir Alexander wastes his words over a dead issue, utterly buried out of sight by the stipulations of the Treaty of Wash: ington. Mr. John Lemoinne expresses the judgment of Eu- rope, and anticipates that of history, in condemning Sir Alexander’s “vehemence of polemic and bitter- ness of discussion, so extraordinary in an official doc- ument.” Strangely enough, the Saturday Leview, which pre- tends to see “scurrility” in the American Case and Argument, where it does not exist, is blind to it in the “ Reasons,” where it is a flagrant fact. Meanwhile, there is nothing accusatory of Great Britain in the American Case;—there is nothing of earnest inculpation of the British Government in the American Argument,—which is not greatly exceeded 140 THE TREATY OF WASHINGTON. by extra-judicial accusation and inculpation of tle United States in the “ Reasons” of Sir Alexander. And it is amusing to read the imputations of “ con- fusion,” “vague and declamatory,” “ignorance of law and history,” which he applies to the American Coun- sel, in view of what his own countrymen say of his own methods of argumentation. Indeed, it would seem that the hard words of Mr. Finlason and others concerning him had made such effectual lodgment in his brain that, whenever he writes, they rush forth hap-hazard to be applied*by him without reason or discrimination to any occasional object of argument or controversy. If, like Mr. Charles Francis Adams, Sir Alexander had simply prepared brief and temperate opinions on all the questions, whether favorable or not to the United States, both Governments would have been left in an amicable mood. As it is, in professedly throwing off the character of a judge,—which. alone belonged to him of right,—of certain specific charges of the United States against Great Britain, submitted to him by the Treaty of Washington,—and in under- taking to become the mere accuser of the United States—he does but insult the American Govern- ment, while subjecting his own Government to much present inconvenience and great future embarrass- ment. There is one particular feature of the “Reasons” too remarkable to be overlooked. In reading these “ Reasons” carefully, one can not fail to be struck by the frequent manifestation of the ALABAMA CLAIMS. 141 disposition of Sir Alexander Cockburn to stop and turn aside in order to criticise Mr. Steempfli. Mr. Steempfli, in conformity with the vote of the Tribunal, printed his provisonal opinions, and deliv- ered them to the other Arbitrators from time to time, and to the respective Agents and Counsel. Sir Alexander Cockburn disingenuously suppressed his provisional opinions until the last moment, and ' then filed a single copy only of the mass of matter, general and special, entitled “Reasons,” which appears in print for the first time in the London Gazette. Now, in the provisional opinions of Mr. Stempfii, it is quite possible there may have been some error of statement. Sir Alexander takes pains to affirm it. But, if there be any such, it is quite immaterial, and does not affect any important conclusion either of fact or of law. Sir Alexander also committed errors of this class in the provisional opinions which he read. Some of them were noted at the time, and are still remember- ed. These errors may have been corrected in the print which we now have. Indeed, the manuscript shows numerous corrections. Nevertheless, but for the suppression of fzs provisional opinions, his col- leagues might have interlarded their provisional or revised opinions with similar captious criticisms of him. It is presumable that they did not think it be- coming or fair to do this; and it was to the last de- gree unfair { in Sir Alexender to do it, in a document foisted into the record, as it was, at the instant of ad- journment, and immetintely compel off without being 142 THE TREATY OF WASHINGTON. actually filed with the Secretary or otherwise placed in the archives of the Tribunal. Now, in the early pages of his “ Reasons,” he im. putes to Mr. Steempfli the having said “that there is no such thing as international law, and that conse- quently we [the Arbitrators] are to proceed inde. pendently of any such law,” and “according to some intuitive perception of right and wrong or speculative notions, ete.” The imputation is calumnious. No such statement appears in any of the printed opinions of Mr.Stempfli; no such declaration was ever made by him orally at any of the Conferences. The declaration of Sir Al- exander in this respect is but a sample of the rash- ness and inaccuracy of representation which pervade the “ Reasons.” ‘What Mr. Steempfli says on the general subject of “international law,” in so far as regards the matters before the Tribunal, is as follows: “Principes généraux de droit. “Dans ses considérants juridiques, le Tribunal doit se guider par les principes suivants :— “1, En premier lieu, par les trois Régles posées dans l’Article VI. du Traité, lequel porte ane, —et cetera. “D’aprés le Traité ces trois Regles raitieatet sur les principes que Yon pourrait déduire du droit des gens historique et de la science. : “9, Le droit des gens historique, ou bien la pratique du droit des gens, ainsi que la science et les autorités scientifiques, peuvent étre considérés comme droit subsidiaire, en tant que les principes 4 appliquer sont généralement reconnus et ne sont point sujets & controverse, ni en désaccord avec les trois Régles ALABAMA CLAIMS. 143 cidessus. Si lune ou autre de ces conditions vient 4 manquer, est au Tribunal d’y suppléer en interprétant et appliquant les trois Régles de son mieux et en toute conscience.” At the time when Sir Alexander sent to press his misrepresentation of the opinions of Mr. Stempfli, he had in his hands the authentic statement thereof as printed at Geneva. ‘There is no excuse, therefore, for this malicious and dishonorable endeavor of the British Arbitrator to prejudice the character of the Swiss Arbitrator in Great Britain. Nevertheless, Mr. Stzempfli, according to Sir Alex- ander, having cut adrift from all positive law, adopts instead “speculative notions,” or “some éntuttive per- ception of right and wrong ;” and such ideas Sir Al- exander repudiates: or, as the London Zélegraph has it, “the Chief Justice, armed with sarcasm as well as logic, runs full tilt against that doctrine:” to wit, the doctrine, still in the words of the Zédegraph, “ that the duties which nations owe to each other must be de- termined by the light of intuitive principles of jus- tice.” The Telegraph goes on, with truth and reason, to say that, after all, Mr. Steempfli is right, if he insists that “the rules of fair dealing, which we term inter- national law, are not law zn the same sense as the pos- itive edicts of the common law; for the essence of such edicts is that they come from a lawgiver in the form of a parliament or a sovereign: the rules of in- ternational justice are simply the code which experi- ence and the judgment of able men have shown to be fair or expedient, but every civilized country feels ‘them to be not less binding on that account.” With- 144 THE TREATY OF WASHINGTON. out pausing to consider whether these observations are perfectly accurate or not as a definition of the law of nations, we may assume that they are substantially so, and suffice at any rate to show clearly the uncan- did spirit of Sir Alexander’s criticism of the imputed language of Mr. Steempfli,—a criticism which calls to -mind a similar unjust and vicious reproach cast by Junius on Lord Mansfield. The actual statement of Mr. Steempfli, as we have seen, was unexceptionably accurate and precise, in so far as regarded the matters before the Tribunal. Meanwhile, Mr. Steempfli may have said orally, what he says here in print, that in many supposable cases of deficient explicitness either of the conventional rules or of the historic law of nations, “c’est au Tri- bunal d’y suppléer en interprétant et appliquant les trois régles de son mieux et en toute conscience.” That is what the Viscount of Itajubdé says in one of his opinions, namely, that a certain doctrine, assert- ed by the British Government, “ froisse la conscience.” It is what Count Sclopis intends, when he says, “ Les nations ont entre elles un droit commun, ou, si on aime mieux, un lien commun, formé par Véguité et sanc- tionné par le respect des intéréts réciproques;” and that such is the spirit of the Treaty of Washington, “qui ne fait que donner la préférence aux régles de léquité générale sur les dispositions d’une législation particuliére quelle qu’elle pute étre.” That is “the universal immutable justice,” which in all systems of law, international or national, distinguishes right from wrong, and to which the United States appealed in ALABAMA CLAIMS. 145 addressing the Tribunal of Arbitration. And it is the negation of all these great principles of “justice,” “equity,” or “conscience,” which pervades the “ Rea- sons” of Sir Alexander Cockburn: in reflecting on which, the mind irresistibly reverts to that same line of reasoning which astonished the world in his par- liamentary advocacy of David Pacifico. And now, who is injured by Sir Alexander’s acri- monious arraignment of the United States in the last hour of the Arbitration? It does not successfully maintain the honor of the British Ministers; for it recognizes their failure to exercise due diligence, whether tried by the Treaty Rules, by the law of na- tions, or by the Act of Parliament. Does it influence the action of the Tribunal? No: that was consum- mated already. Does it injure the American Govern- ment, its Agent and Counsel? No: so far as regards us, it does but prove that the American Agent and Counsel have done their duty regardless of the vin- dictive ill-will of the British Arbitrator, and that the United States have been successful to such a degree as to throw the Chief Justice of England into ecstasies of spitéful rage, in which he strikes out wildly against. friend and foe alike, but chiefly against his own Gov- ernment, in his desultory criticism as well of the Treaty of Washington as of the judgment of the Tri- bunal of Arbitration. For the British Government, we know, has no dis- position to repudiate the Treaty, and it accepts the Award in good faith, and desires that it should be ac- cepted by the people of Great Britain. It can not be K 146 THE TREATY OF WASIIINGTON. agreeable to the British Government to have all the old debate reopened by the Chief Justice—to have the Treaty, its Rules, the Arbitration, and the Award, made by him the subject of profuse denunciation,—to have an arsenal of weapons, good, bad, or indifferent, collected by him for the use of the Opposition in Par. liament. . Nor can it be agreeable to see the Arbitrator they had appointed demean himself so fantastically, and, as the English Press is constrained to admit, in a manner so painfully in contrast with the dignity and judicial impartiality of the American Arbitrator. The Chancellor of the Exchequer [Mr. Lowe] gave utterance to these sentiments of grief and regret in a speech at Glasgow on the 26th of September, as fol- lows: “T conceive our duty to be to obey the Award, and to pay whatever is assessed against us without cavil. or comment of any kind. [Cheers.] Iam happy to say that such is the opin- ion of my learned friend, the Lord Chief Justice. But I must say, with the greatest submission to my learned friend, that I wish his practice had accorded a little more accurately with his theory. He has advised us to submit, as I advise you to submit, to the Award, and not only to pay the money, hut to forego for once the national habit of grumbling—[laughter]— and to consider that we are bound in honor to do what we are told, and that, having once put the thing out of our power in the honor able and the high-minded way in which the nation has done, the only way in which we should treat it is simply to obey the Award, and to abstain from any comment whatever as to what the Arbitrators have done.. [Cheers.] But, if my learned friend the Lord Chief Justice thought so,I can only very: much regret that he did not take the course of simply signing the Aw vard with the other Arbitrators, it being perfectly ALABAMA CLAIMS. 147 well known that he differed from them in certain respects, which would appear by the transactions of the Award. I think it is a pity when the thing is decided, when we are bound to act upon it, and when we are not really "sustified, in any feeling of honor or of good faith, in making any reclamation or quarrel at all with what has been done, that he should have thought it his duty to stir up and to renew all the strong arguments and con- tests upon which these Arbitrators have decided. [Cheers. ] I think if it was his opinion that we ought to acquiesce quietly and without murmur in the Award, he had better not have pub- lished his argument, and, if he thought it right to publish his argument, he had better have retrenched his adviee itself as to the arbitration.” Mr. Lowe can not help seeing that the “ Reasons” are not an opinion, but an “argument,” and an “ argu- ment” adverse to the conclusions of the writer. Thus, it would appear, such is the eccentric mental constitution of the Chief Justice, that while he is in- capable of going through any process of reasoning without inconsistencies and selfcontradictions at ev- ery step, so he can not perform an act, or recommend its performance, without at the same time setting forth ample reasons to forbid its performance. In the recent debate in Parliament, to be sure, on the Queen’s speech, some of the members of both Houses, especially of those in Opposition, speak in terms of laudation of the “ Reasons” of the Chief Jus- tice. Lord Cairns, on this occasion, seems to have for- gotten what he had said, on a previous occasion, of the ‘judicial impartiality to be expected of an arbitrator. And Mr. Vernon Harcourt, in defending the Chief Justice against what the Chancellor of the Exchequer had said of him at Glasgow, unconsciously falls into 148 THE TREATY OF WASHINGTON. the error of characterizing him as “ the representative of the Crown, sent forth to discharge his duty to his Sovereign and maintain the honor of his country :” which affords to Mr. Lowe opportunity of responding triumphantly as follows: “T have not spoken of the Lord Chief Justice in the lan- guage in which the honorable and learned gentleman has spoken of him, and which filled me with unbounded astonish- ment. The Lord Chief Justice was sent to Geneva as an Ar- bitrator to act impartially, and not to allow himself to be biased by the fact of his being an Englishman, but to give his judgment on what he thought to be the merits of the case, That is my belief with regard to the Lord Chief Justice, with regard to whom J am arraigned by the honorable and learned gentleman as having treated him disrespectfully. But how does the honorable and learned gentleman himself speak of the Lord Chief Justice? He says that learned Judge was a plen- ipotentiary,—that is to say, that he went to Geneva to do the work of England, and not to decide between two parties im- partially, but to be biased in his course, and to go all lengths for England. The conduct of the Lord Chief Justice negatives such a statement, because in some respects the learned lord went against us, Then the honorable and learned gentleman said that the Lord Chief Justice was sent to Geneva to defend the honor of this country; but the fact is that he was sent to ar- bitrate, and Sir Roundell Palmer and others were sent to defend the honor of the country. Jt would be a libel on the Lord Chief Justice to insinuate that he would undertake the office of going to Geneva nominally in the character of Arbitrator, but really to act as an advocate and plenipotentiary for this country.” It is difficult to judge how much of what Mr. Lowe said on this occasion was intended as sincere defense of the Chief Justice, and how much was mere sarcasm. But this uncertainty is due to the ambiguous and equivocal conduct of the Chief Justice himself, and ALABAMA CLAIMS, 149 to his own. declaration that, while engaged in writ- ing an extra-judicial pamphlet, under the false pre- tense of its being the act of an Arbitrator, he was really speaking as the Representative of Great Brit- ain. That was the mistake of the Chief Justice. It was competent for him, after running away from the Tribunal as he did, to publish in England the con- tents of the first part of the “Reasons” as a personal act. It was dishonorable in him to smuggle it into the archives of the Tribunal, and to publish it in the London Gazette as the official act of an Arbitrator. In view of all these incidents, and of the extraordi- nary contrast between the conduct of Mr. Adams and Sir Alexander Cockburn, as admitted by Englishmen themselves, it is easy to comprehend that, while the former has been honored with the express official commendation of doth Governments, the latter, by wantonly insulting his fellow-Arbitrators and_ the United States, has, while receiving partisan praise in Parliament, rendered it difficult, if not impossible, for him to receive the hearty approval even of his own Government. OPINIONS OF THE OTHER ARBITRATORS. The other Arbitrators also placed on record their separate opinions as finally corrected, all which de- serve notice. Each of these opinions consists of an affirmative exposition of the views of the Arbitrator who speaks. Count Sclopis, Mr.Stempfli, the Vicomte d’Itajubd, and Mr. Adams, each of them states his con- clusions founded on the documents and arguments be- 150 THE TREATY OF WASHINGTON. fore the Tribunal. Neither of them seems to have imagined that the cause of truth or of justice would have been promoted by going outside of the docu- ments and arguments submitted, in order to criticise or cavil at the opinions of the British Arbitrator. ‘We begin with Mr. Adams. His opinions are of some length; and, although containing correct state- ments of local law where such statements were mate- rial, yet deserve to be regarded in the better light: of diplomacy and of international jurisprudence. He does not descend from the Bench into the arena of the Bar. If he had seen fit to do this, he might have dis- covered quite as much inducement to acrimony and acerbity of discussion in the wanton accusations of the entire political life of the United States, which the British Case, Counter-Case, and Argument con- tain, as Sir Alexander did in any thing which the Cases and Argument of the United States contained. But he yielded to no such temptation. “He put aside the temper of the adyocate,” as the Zélegraph truly says, to speak “ with the impartiality of a jurist and the delicate honor of a gentleman.” Accordingly, his opinions are without blemish either in temper or in language. He finds want of due diligence in the matter of the Alabama: and so did the British Ar- bitrator. He finds extraordinary disregard of law in the matter of the Florida: and so did the British Arbitrator. He finds a series of acts of scandalous wrong perpetrated by officers of the British Govern- ment in both these cases: and so did the British Ar- bitrator. He can not, as the British Arbitrator does, ALABAMA CLAIMS. 151 find justification for the acts of negligence of British Colonial authorities in the matter of the Shenandoah or that of the Retribution. And, as might have been anticipated, his conception of the duties of a State suppose a higher standard of national morality than that recognized by the BritisheArbitrator. Mr. Steempfli’s opinions are also of considerable length, but differ from those of Mr. Adams, especially in the form, which is that customary among the jurists of the Continent. He also, while confining himself to the most rigorous deductions of international law, in discussing the acts of the inculpated Confederate cruis- ers, yet writes like a statesman, habituated to breathe the air of that “climate” of “the impartiality of a jurist and the delicate honor of a gentleman” which was not the “climate” of the British Arbitrator. The opinions of the Vicomte d’Itajuba are very brief, but in the same form of analysis as the opinions of Mr. Stempfli. It 1s to be noted, however, that, be- yond stating his reasoning and conclusion as to each. of the inculpated cruisers, he speaks of only one of the special questions argued, namely, that of the effect to be given in British ports to the Confederate cruisers exhibiting commissions. As to this point he con- cludes as follows: “La commission dont un tel navire est pourvu, ne suffit pas pour le couvrir vis-d-vis du neutre dont-il a violé la neutralité, Et comment le belligérant se plaindrait-il de lapplication de ce principe? En saisissant ou détenant le navire, le neutre ne fait qu’empécher le belligérant de tirer profit de da fraude com- mise sur son territoire par ce méme belligérant; tandis que, en ne procédant point contre le navire coupable, le nettre 152 THE TREATY OF WASHINGTON. s’expose justement 4 ce que l'autre belligérant suspecte ca bonne fot.” In these observations, we see that the Vicomte d’Itajubé appeals to the same“ intuitive perceptions of right” which are so unpalatable to the British Ar. bitrator, The Vicomte d’Itajubd does not give us any opin- ion on the subject of “due diligence generally consid- ered:” which tends to prove that his call for argument on that point was not induced by any need on his part for elucidation of Counsel. The opinions of Count Sclopis,—not only those in which he judges the particular cases, but especially those in which he discusses the questions of public law, as to which mere opinéon was drawn from the Ar. bitrators, virtually at the instance of Great Britain,— are instructive and interesting disquisitions, of per- manent value as the views of an erudite legist and a practiced statesman. ‘The paper on due diligence is remarkable for its profound and comprehensive view of that subject in its higher relation to the acts of sovereign States. In this paper, he thoroughly exposes the fallacy of the argument of Sir Roundell Palmer, which would lower the generality and the greatness of the Treaty Rules to the level of the municipal law of Great Britain. And now, having reviewed the stipulations of the Treaty in this respect, the debates attending it both before and after its conclusion, the proceedings of the Tribunal of Arbitration, and the separate opinions of the Arbitrators, we come to the consideration of what ALABAMA CLAIMS. 153 they actually decided, the immediate effect of the De- cision, and the general relation thereof to Great Brit- ain, to the United States, and to the other Govern- ments of Europe and America. REVIEW OF THE DECISION OF THE TRIBUNAL ON NATIONAL LOSSES. To begin, let us see what was the true thought of the Tribunal regarding the class of claims, as to which the British Government displayed so much superfiu- ous emotion subsequently to the publication of the American Case, and which the Tribunal passed upon, in effect, without previous decision whether they were or were not embraced in the Treaty. I have already called attention to the fact that no consideration of direct or indirect, immediate or conse- quential, appears in that opinion of the Tribunal. The Arbitrators express a conclusion, not the reasons of the conclusion, We might, it is true, easily infer those reasons from the language in which the conclu- sion is expressed. That language excludes all such trivial questions as whether “direct” or “indirect,” and invokes us to seek for the unexpressed reasons 1n some higher order of ideas. Meanwhile we have, at length, in the final “Decision,” means of ascertaining the whole thought of the Tribunal. The Arbitrators had to pass on a claim of indemni- ty for the costs of pursuit of Confederate cruisers by the Government :—a claim admitted to be within the jurisdiction of the Tribunal, and which the Tribunal rejects on the ground that such costs “are not, in the 154 THE TREATY OF WASHINGTON. judgment of the Tribunal, properly distinguishable from the general expenses of the war carried on by the United States.” Here, the major premise is assumed as already de- termined or admitted, namely, that “the general ex- penses of the war” are not to be made.the subject of award. Why not? Because such expenses are in the nature of indirect losses?. No such notion is in- timated. Because the claim, as being for zndirect losses, is not within the purview of the Treaty? That is not said or implied. Because such a claim is be- yond the jurisdiction of the Tribunal? No: for the Tribunal takes jurisdiction and judges in fact. The question then remains,—why is a claim for. losses pertaining to the general expenses of the war to be rejected ? There can be no mistake as to the true answer. It is to be found in the preliminary opinion ae essed. by the Arbitrators. The Tribunal, in that opinion, says that fie contro- verted [the so- called indirect] claims “do not consti- tute, upon the principles of international law. applica- ble to such cases, good foundation for an award of compensation or computation of damages between na- tions.” Why does not the injury done to a nation by the destruction of its commerce, and by the augmenta- tion of the duration and expenses of war, constitute “a good foundation for an awar d of compensation or com- putation of damages between nations?” The answer is that such subjects of reclamation are “ not properly distinguishable from the general expenses of war.” ALABAMA CLAIMS. 155 Let us analyze these two separate but related opinions, and thus make clear the intention of the Tribunal. It is this: The injuries done to a Belligerent by the failure of a Neutral to exercise due diligence for the prevention of belligerent equipments in its ports, or the issue of hostile expeditions therefrom, in so far as they are in- juries done to the Belligerent in its political capacity as a nation, and resolving themselves into an element of the national charges of war sustained by the Bel- ligerent in its political capacity as a nation, do not, “upon the principles of international law applicable to such cases” [excluding, that is, the three Rules], constitute “good foundation for an award of compen- sation or computation of damages between nations.” Such, in my opinion, is the thought of the Arbitra- tors, partially expressed in one place as to certain claims of which they did not take jurisdiction, and partially in another place as to others of which they did take jurisdiction,—the two partial statements be- ing complementary one of the other, and forming to- gether a perfectly intelligible and complete judgment as to the whole matter. The direct effect of the judgment as between the United States and Great Britain, is to prevent either Government, when.a Belligerent, from claiming of the other, when a Neutral, “an award of compensation or computation of damages” for any losses or additional charges or “ general expenses of war,” which such Bel- ligerent, in its political capacity as a nation, may suf: fer by reason of the want of due diligence for the 156 THE TREATY OF WASHINGTON. prevention of violation of neutrality in the ports of such Neutral. That is to say, the parties to the Treaty of Washington are estopped from claiming compensation, one of the other, on account of the na- tional injuries occasioned by any such breaches of neutrality, not because they are ¢nzdirect losses,—for they are not,—but because they are natzonal losses, losses of the State as such. And each of us may, in controversies on the same point with other nations, allege the moral authority of the Tribunal of Geneva. But, while natzonal losses incurred by the Bellig- erent as a State in consequence of such breaches of neutrality are not to be made the subject of “com. pensation or computation of damages,” all private or individual losses may be, under the qualifications and limitations as to character and amount found by the Tribunal, and which will be explained in treating - that part of the Decision. These conclusions are the inevitable result of care- ful comparison ‘of the several claims with the several decisions. True it is, the national claims of indem- nity for the cost of the pursuit of the Confederate cruisers happened to come before the Tribunal asso- ciated with strictly private claims, and the strictly private claims on account of payment of extra war premiums associated with national claims; but these are perfectly immaterial incidents, which do not in any way affect appreciation of the opinions of the Tribun§l. Another subject. of. reflection suggests itself, in comparing the respective decisions on national and ALABAMA’ CLAIMS. 157 on private losses, produced by the failure of a Neu- tral to maintain neutrality. We asserted the responsibility of Great Britain for the acts of such of the Confederate cruisers as came within either of the three Rules, just as if those cruisers had been fitted out or supplied by the-Brit- ish Government, to the extent at least of the prizes of private property which those cruisers made. That was the theory of imputed responsibility. Any cruis- er enabled to make prizes by the fault of the Brit- ish Government was to be regarded as pro tanto a British cruiser, and Great Britain, in the words of the British Counter-Case, “treated [in that respect] as a virtual participant in the war.” The Tribunal seems to have so held; that is, in regard to the losses of individual citizens of the United States. Moreover, it was argued on both sides, as by com- mon consent, that the question between the two Governments was one of war, commuted for indem- nity. “Her [Great Britain’s] acts of actual or constructive com- plicity with the Confederates,” says the American Argument, “gave to the United States the same right of war against her, as in similar circumstances she asserted against the Nether- lands. “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.” This position is clearly stated in the British Coun- ter-Case as follows: ' “Her Majesty’s Government readily admits the general 158 THE TREATY OF WASHINGTON. “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 prin- “ciple analogous to this; the society of nations, as well as that “which unites the individual members of each particular com- “monwealth.” Now the capture of private property on the seas, it can not be denied, is one of the methods of public war. Whether such capture be made by letters of marque, or by. regular men-of-war, is immaterial ; in either form it. increases the resources of one Belliger- ent and it weakens those of the other; and if the Neutral fits out [or, in violation of sewer duty, suf fers to be fitted out in its ports, which is the same thing] cruisers in aid of one of the Belligerents, such Neutral becomes a virtual participant in the war, not only prolonging it and augmenting its expenses, but perhaps producing decisive effects adverse to: the other Belligerent. ‘These are the national losses, or, as the British Government insists, the indirect, losses, inflicted by neglect or omission to discharge the ob- ligations of neutrality. ‘ In deciding that such losses,—that, in general, the national charges of war,—can not by the law of nations be regarded as “good foundation for an award of compensation or computation of damages between nations,” the Tribunal in effect relegated that question to the unexplored field of the discre- tion of sovereign States. Claims of indemnity for the national losses grow- ALABAMA CLAIMS. 159 ing out of a state of war being thus disposed of, we arrive at the great class of private losses, which chief: ly occupied the time of the Tribunal. DECISION AS TO PRIVATE LOSSES. The Arbitrators, assuming that, pursuant to the command of the Treaty, they are to be governed by the three Rules, and the principles of international law not incompatible therewith, proceed to lay down the following prefatory positions, namely : 1. “The ‘due diligence’ referred to in the first and third of the said Rules, ought to be exercised by neutral Governments in exact proportion to the risks to which either of the Belliger- ents may be exposed from a failure to fulfill the obligations of neutrality on their part. 2.“ The circumstances, out of which the facts constituting the subject-matter of the present controversy arose, were of a na- ture to call for the exercise on the part of Her Britannic Maj- esty’s Government of all possible solicitude for the observance of the rights and the duties involved in the proclamation of neutrality issued by Her Majesty on the 13th day of May, 1861. 3. “The effects of a violation of neutrality committed by means of the construction, equipment, and armament of a ves- sel are not done away with by any commission which the Gov- ernment of the belligerent Power benefited by the violation of neutrality may afterward have granted to that vessel; and the ultimate step, by which the offense is completed, can not be admissible as a ground for the absolution of the offender; nor can the consummation of his fraud become the means of estab- lishing his innocence. 4.“ The privilege of ex-territoriality accorded to vessels of war has been admitted into the laws of nations, not as an ab- solute right, but solely as a proceeding founded on the princi- ple of courtesy and mutual deference between different na- tions, and therefore can never be’ appealed to for the protec- tion of acts done in violation of neutrality. 160 THE TREATY OF WASHINGTON. 5. “' The absence of a previous notice can not be regarded as a failure in any consideration required by the law of nations, in those cases in which a vessel carries with. it its own con- demnation, 6. “In order to impart to any supplies of coal a character. inconsistent with the second*Rule, prohibiting the use of neu- tral ports or waters, as a base of naval operations for the Bel- ligerent, it is necessary that the said supplies should be con- nected with special circumstances of time, of persons, or of place, which may combine to give them such character.” Keeping in view these rules of construction, the Tribunal proceeds to judge the British Government in regard to each of the Confederate cruisers before them, As to the Alabama, originally “No. 290,” construct- ed in the port of Liverpool and armed near Terceira, through the agency of the Agrippina and Bahama; dispatched from Great Britain to that end, the Tri- bunal decides that the British Government failed to use due diligence in the performance of its neutral obligations: 1. Because “it omitted, notwithstanding the warnings and official representations made by the diplomatic agents of the United States during the construction of the said ‘ No. 290,’ to take in due time any effective measures of prevention, and that those orders which it did give at last, for the detention of the vessel, were issued so late that their execution was not prac- ticable ;” 2. Because, “after the escape of that vessel, the meas- ures taken for its pursuit and arrest were so imperfect as to lead to no result, and therefore can not be considered sufficient to release Great Britain from the responsibility already in- curred ;” 8. Because, “in despite of the violations of the neu- trality of Great Britain committed by the ‘ 290,’ this same ves- sel, later known as the Confederate cruiser Alabama, was on several occasions freely admitted into the ports of Colonies of ALABAMA CLAIMS. 161 Gréat Britain, instead of being proceeded against, as it ought to have been, in any and every port within. British jurisdiction in which it might have been found;” 4. And because “the Government of her Britannic Majesty can not justify itself for a failure in due diligence on the plea of the insufficiency of the legal means of action which it possessed.” As to the Florida, originally called Oreto, the Tri- bunal decides that the British Government failed to use due diligence to fulfill its duties: 1. Because “it results from all the facts relative to the con- struction of the Oreto in the port of Liverpool, and to its issue therefrom, which facts failed to induce the Authorities in Great Britain to resort to measures adequate to prevent the violation of the neutrality of that nation, notwithstanding the warnings and repeated representations of the Agents of the United States ;” 2. Because “it likewise results from all the facts rela- ‘tive to the stay of the Oreto at Nassau, to her issue from that port, to her enlistment of men, to her supplies, and to her arma- ment with the co-operation ‘of the British vessel Prince Alfred at Green Cay, that there was negligence on the part of the British Colonial Authorities ;” 3. Because, “ notwithstanding the violation of the neutrality of Great Britain committed by the Oreto, this same vessel, later known as the Confederate cruiser Lorida, was nevertheless on several occasions freely admitted into the ports of British Colonies ;” and, 4. Because “the judicial acquittal of the Oreto at Nassau can not relieve Great Britain from the responsibility incurred by her under the principles of international law; nor can the fact of the entry of the Florida into the Confeder: ate port of Mobile, and of its stay there during four mopths, extinguish the responsibility previous to that time incurred by Great Britain.” As to the Shenandoah, originally called the Sea King, the Tribunal decides that the British Govern- ment is not chargeable with any failure in the use of due diligence to fulfill the duties of neutrality respect- L 162 THE TREATY OF WASHINGTON. ing her during the period of time anterior to her en- try into the port of Melbourne: but— “That Great Britain has failed, by omission, to fulfill the du- ties prescribed by the second and third of the Rules aforesaid, in the case of this same vessel, from and after her entry into Hobson’s Bay, and is therefore responsible for all acts commit- ted by that vessel after her departure from Melbourne, on the 18th day of February, 1865,” The Tribunal further decides as to the Tuscaloosa, tender to the Alabama, and as to the Clarence, the Tacony, and the Archer, tenders to the Florida : “That such tenders or auxiliary vessels being properly re- garded as accessories, must necessarily follow the lot of their principals, and be submitted to the same decision which ap- plies to them respectively.” As to the other vessels accused, namely, the etrv- bution, Georgia, Sumter, Nashville, Tallahassee, and Chickamauga, the Tribunal decided “that Great Brit- ain has not failed, by any act or omission, to fulfill any of the duties prescribed by the three Rules of Article VI. in the Treaty of Washington, or by the principles of international law not inconsistent there- with.” Thus far the Tribunal had dealt only with the con- siderations of law and of fact applicable to the gener- al question of the naked legal responsibility of Great Britain. As preparatory to the ulterior question of the sum to be awarded to the United States by way of indem- nity, the Tribunal decides; 1. “That prospective earn- ings can not properly be made the subject of compen- ALABAMA CLAIMS. 163 sation, inasmuch as they depend in their nature upon future and uncertain contingencies ;” 2. “In order to arrive at an equitable compensation for the dama- ges which have been sustained, it is necessary to set aside all double claims for the same losses, and all claims.for ‘gross freights’ so far as they exceed ‘net freights;’” 3. “It is just and reasonable to allow in- terest at a reasonable rate.” Finally, the Tribunal, deeming it preferable, in ac- cordance with the spirit and the letter of the Treaty of Washington, to adopt the form of adjudication of a sum in gross rather than to refer the subject of compensation to Assessors, concludes as follows: “The Tribunal, making use of the authority conferred upon it by Article VII. of the said Treaty, by a majority of four voices to one, awards to the United States the sum of fifteen millions five hundred thousand dollars in gold as the indemni- ty to be paid by Great Britain to the United States for the satisfaction ofall the claims referred to the consideration of the Tribunal, conformably to the provisions contained in Article VII. of the aforesaid Treaty. “ And, in accordance with the terms of Article XI. of the said Treaty, the Tribunal declares that ‘all the claims referred to in the Treaty as submitted to the Tribunal are hereby fully, perfectly, and finally settled.’ “Furthermore, it declares that each and every one of the said claims, whether the same may or may not have been presented to the notice of, or made, preferred, or laid before the Tribunal, shall henceforth be considered and treated as finally settled, barred, and inadmissible.” It deserves to be remembered that the British Ar- bitrator, and he alone, refused to sign the Decision. No good reason appears to justify this refusal, seeing 164 THE TREATY OF WASHINGTON. that the signature is but authentication, and the body of the Decision sets forth all the differences of opinion existing among the Arbitrators. Thus, Mr. Adams and Mr, Steempfli were overruled on two questions; and yet they signed the Act. So the Vicomte d’Ita- Juba was overruled on the great question of the lia- bility of Great Britain for the Shenandoah; and yet he signed the Act. In separating himself from his colleagues in this respect, the British Arbitrator ex- hibited himself as what he was, as most of his ac. tions in the Tribunal demonstrated,—as his subse- quent avowal established,—not so much a Judge, or an Arbitrator, as the volunteer and officious attor- ney of the British Government. _EFFECT OF THE AWARD. In reflecting on this Award, and seeking to deter- mine its true construction, let us see, in the first place, what it actually expresses either by inclusion or ex- clusion. . The Award is to the United States, in conformity with the letter of the Treaty, which has for its well- defined object to remove and adjust complaints and claims “on the part of the United States.” But the history of the Treaty and of the Arbitra- tion shows that the United States recover, not for the benefit of the American Government as such, but of such individual citizens of the United States as shall appear to have suffered loss by the acts or neglects of the British Government. It is, however, not a spe- cial trust legally affected to any particular claim or ALABAMA CLAIMS. 165 claimants, but a general fund to be administered by the United States in good faith, in conformity with their own conceptions of justice and equity, within the range of the Award. If, according to any theory of distribution adopted by the United States, the sum awarded prove inadequate, we have no claim on Great Britain to supply the deficiency : on the other hand, if the Award should prove to be in excess, we are not accountable to Great Britain for any balance. On this point, precedents exist in the diplomatic his. tory of Great Britain herself. The Tribunal does not afford us any rules of limit- ation affecting the distribution of the Award, un- less in the declaration that “prospective earnings,” “double claims” for the same losses, and “claims for gross freights, so far as they exceed net freights,” can not properly be made the subject of compensation,— that is to say, as against Great Britain. Nor does the Tribunal define affirmatively what claims should be satisfied otherwise than in the com- prehensive terms of the Award, which declares that the sum awarded is “the indemnity to be paid by Great Britain to the United States for the satisfac. tion of all the claims referred to the consideration of the Tribunal, conformably to the provisions contained in Article VII. of the aforesaid Treaty.” The Arbitrators,—be it observed,—do not say for the satisfaction of certain specific claims among those referred to the consideration of the Tribunal, but of “qil-the claims” so referred conformably to the pro- visions of the Treaty. 166 THE TREATY OF WASHINGTON. Now, the practical question which arises is wheth- er the schedules of claims, which were presented to the Tribunal as documentary proofs on the part of the United States, are conclusive, either as to what they contain or what they do not contain, to establish rules of distribution under the Award. This point is settled by what occurred in discus- sions before the Tribunal. Great Britain had presented a table, composed in large part of estimates, appreciations, and arbitrary or suppositious averages: in consequence of which the United States presented other tables, to which the British Agent objected that these tables compre- hended claimants, and subjects of claim, not comprised in the actual schedules filed by the United States: to which the American Agent replied by showing that the Tribunal had before it, in virtue of the Treaty, all the reclamations made by the United States in the interest of individuals injured, and comprised un- der the generic name of Alabama Claims [le tribunal reste saisi de la question de toutes les réclamations faites par les Etats-Unis dans Vintérét des individus lésés, et comprises sous le nom générique de réclama- tions de 2’ Alabama]. Some discussions on the same subject afterward oc- curred between Mr.Stempfli and Sir Alexander Cock- burn, which conclusively prove that the result reached did not accept as binding either the tables presented by the United States or the deductions therefrom claimed by Great Britain. The estimate of Mr. Stempfli seems to have been the basis of conclusion ; ALABAMA CLAIMS. 167 and that estimate is founded on dividing the differ- ence between the American estimate of $14,437,000, and the British estimate of $7,074,000, the mean of which is $10,905,000: which mean does not in any sort represent the actual claims of the United States, Indeed, one of the Arbitrators expressly declared that, in arriving at a conclusion, the Arbitrators were not to be regarded as making an assessment, or con- fining themselves to the schedules, estimates, or tables of either of the two Governments. Whether the sum awarded be adequate, depends, in my opinion, on whether distribution be made among actual losers only and citizens of the United States, ALIDITY OF THE AWARD. The principles of the Award are in conformity with the Rules of the Treaty, which do but embody in pre- cise language the traditional policy, inaugurated by Washington with the active support of Jefferson, pro- fessed by every successive President of the United States, and authenticated by repeated Acts of Con- Tess, That Great Britain loyally accepts the Award, and will in due time pay to the United States the amount awarded, it is impossible to doubt. The Queen’s speech, at the opening of the present session of Par- liament, not only declares the acquiescence of the British Government in the Award, but also recom- mends speedy payment in conformity with the tenor of the Treaty. And while prominent members of both Houses, 168 THE TREATY OF WASHINGTON. such as the Earl of Derby, the Marquess of Salisbury, and Lord Cairns, in the House of Lords, and, in the House: of Commons, Mr. Disraeli, Mr. Horsman, and others, spoke complainingly of the Treaty, and of the new Rules, rather than of the Award, yet Lord Gran- ville, the Marquess of Ripon, and the Lord Chancel- lor, in one House, and Mr. Gladstone, Mr. Laing, Mr. Lowe, and others, in the other House, defended the whole transaction with its results, as alike beneficial to Great Britain and the United States. Among the discontented persons is Mr. Laird, who a himself characterized as one of those who prefer « private gain to public honor,” and who seems to think that the Government of ‘that day did not i- vestigate him and his family so much as:it might and should have done to the end of detecting and expos- ing the false pretenses with which they covered up the illegal destination of the Alabama. Lord Redes. dale also continues to mourn over the insensibility of the British Government to his partnership argu- ment, and refuses to be comforted, although the Gov- ernment did, in fact, present the argument with all possible seriousness in the British Counter-Case and elsewhere, in season to have it distinctly responded to by the Counsel of the United States (Argument, p. 479 and seg.), and considered or not considered by the Tribunal. The elaborate speeches of the Earl of Derby and Mr. Disraeli sufficiently indicate the footing on which objection to the Treaty and to the Award is to be placed in England. Little is said in criticism of the ALABAMA ‘CLAIMS, 169 amount awarded as indemnity. Earl Granville, in- deed, does not fail to remind the Earl of Derby of the admission made by the latter in the House of Com- mons, to the effect that the Americans were very likely to establish their claims, or some of them at least, and to get their money. This admission on the part of Lord Stanley evinced his manliness and truth- fulness. Even the Chief Justice at Geneva was forced to concede the responsibility of Great Britain for the acts of the Alabama, and did not very skillfully es- cape making the same concession as to the Florida. The marvel is, that Lord Russell should have so persistently refused to agree to any terms of redress, when he himself could write to Lord Lyons on the 27th of March, 1863, “that the cases of the Alabama and Oreto were a scandal, and, in some degree, a re- proach to our laws.” I demand of myself sometimes, in reflecting on the strange obstinacy of Lord Russell in this respect, as contrasted with the conduct of the Earl of Derby, the Earl of Clarendon, and Earl Gran- ville, whether there be not some mystery in the mat- ter, some undisclosed secret, some unknown moral co- ercion, to account for and explain the conduct of Lord Russell? The extraordinary incident of the failure of the Government to obtain from the Law Officers of the Crown any response to the call for their opin- jon in season to detain the Alabama,—which incident Sir Roundell Palmer vainly attempted to explain at Geneva,—would really tend to make one suspect that some member of the Government more powerful than himself had defeated those good intentions of Lord 170 THE TREATY OF WASHINGTON. Russell, with which he is credited: by Mr. Adams, May it not have been, must it not have been, Lord Palmerston? Is Earl Russell solely responsible for the deplorable errors of that Administration ?* * I repeat, in Great Britain issue is not to be made on the pecuniary part of the Award, but on the construction of the opinions expressed and the legal conclusions arrived at by the Tribunal of Arbitration. The opinions of a the Arbitrators in the case of the Alaba- ma, including that of the British Arbitrator, are concurrent to the effect that, by reason of the mendacity of her builders, the Lairds, co-operating with corruption, negligence, or stupidity on the part of the Board of Customs, the British Government was made responsible for the depredations committed by her on the commerce of the United States. But the circumstances of the actual escape of the Alabama reveal a singular imperfection in the administrative mechanism of the British Government. On the 23d of July, 1862, the British Government was aroused from its indifference in regard to the equipment of the Alabama, by receiving from Mr. Adams, with some other papers, an opinion of a Queen’s Counselor, Mr., now Sir Robert, Collier, to the effect that, if the Alabama were suffered to de- part, the Board of Customs and the Government would incur “heavy responsibility.” The case had become urgent. The Alabama might sail at any moment. Lord John Russell has- tened to hide himself under the robes of the “ Law Officers of the Crown,”—that is to say, Sir John Harding, the Queen’s Ad- vocate-General; Sir William Atherton, the Attorney-General ; and Sir Roundell Palmer, the Solicitor- ‘General. But the oracles did not speak until the 29th of July, and then advised detention ; in consequence of which, on the morn- ing of that day, the Alabama, whose managers appear to have had intimate knowledge of every step taken or not taken by the Government, departed from Liverpool. Lord John Russell, in a conference with Mr. Adams on the 31st of July, imputed this misadventure to “the sudden devel- ALABAMA CLAIMS. 171 It deserves to be noted in this relation that: al- though Edwards and possibly some other of the pub- opment of a malady of the Queen’s Advocate, Sir John D, Harding, which had utterly incapacited him for the transaction of business, This,” he added, “had made it necessary to cull in other parties [he does not say, others of the Law Officers], whose opinion had been at last given for the detention of the gun-boat.” The Counsel of the United States, in their Argument, invite attention to the unsatisfactoriness of this explanation. They found in the Documents annexed to the British Case eight opinions of the “ Law Officers of the Crown,” prior to that of July 29th, all of which, except one dated June 30th, are signed by Sir John Harding, and also either by Sir William Atherton or by Sir Roundell Palmer. Thereupon, we inferred that the Queen’s Advocate had become sick on or before the 30th of June; and we also inferred that “it was not necessary on the 29th of July to call in new parties, but only to call upon the old.” These inferences were legitimate, and were confirmed in the sequel by the highest authority. But thereupon the British Arbitrator, after speaking of the last inference as “an ungenerous sneer,” remarks: “The unworthy insinuation here meant to be conveyed is, that Lord Russell stated that which was untrue,—an insin- uation which will be treated as it deserves by every one who knows him. It is obvious that Mr. Adams must, in this par- ticular, have misunderstood his Lordship.” The Chief Justice unconsciously admits that if Lord Russell said this, “he stated that which was untrue,” and expects us to disbelieve Mr. Adams in order to shield Lord Russell. I prefer to believe Mr, Adams. Nay, the statement imputed to Lord Russell by Mr. Adams is in substance reaffirmed and adopted in the British Case [p.118]. The senseless prejudice which fills the mind of the Chief Justice in reference to the United States, their Agent, and their Counsel, is rendered the more conspicuous here by the fact that, when he threw out this “ ungenerous sneer” and this “ un- 172 THE TREATY OF WASHINGTON. lic officers, whose negligence or fraud has reflected so seriously on the British Government, may have been worthy accusation” of his against the American Counsel, he had before him a statement on the subject, presented to the Tribu- nal of Arbitration by Sir Roundell Palmer, as follows: “Sir John Harding was ill from the latter part of June, 1862, and did not, after that time, attend to Government business. It was not, however, known, until some weeks afterward, that he was unlikely to recover; nor did the disorder undergo, till the end of July, such a development as to make the Government aware that the case was one of permanent mental alienation. “ Although, when a Law Officer was ill, he would not be troubled with ordinary business, it was quite consistent with probability and experience that, in a case of more than usual importance, it would be desired, if possible, to obtain the ben- efit of his opinion. Under such circumstances, the papers would naturally be sent to his private house; and, if this was done, and if he was unable to attend to them, some delay would necessarily take place before the impossibility of his attending to them was known. “Tord Russell told Mr. Adams [July 31, 1862] that some delay had, in fact, occurred with respect to the Alabama in consequence of Sir John Harding’s illness. He could not have made the statement, if the fact were not really so; because, whatever the fact was, it must have been, at the time, known to him. The very circumstance that Sir J. Harding had not already advised upon the case in its earlier stage might be a reason why it should be wished to obtain his opinion. “Sir J. Harding and his wife are both [some years since] dead; so are Sir W. Atherton [the then Attorney-General] and his wife; no information, therefore, as to the circumstances which may have caused delay, with respect to the delivery at their private house, or the transmission and consideration of any papers on this subject, can now be obtained from them. “The then Solicitor-General was Sir R. Palmer, who is able to state positively that the first time he saw or heard of the. papers sent to the Law Officers [7. ¢., all three Law Officers] on ALABAMA CLAIMS. 173 dismissed, yet it does not appear that any of the guilty parties, sugh as Laird, Miller, Thomas, Prioleau, the 23d and 25th or 26th of July, was on the evening of Mon- day, the 28th of July, when he was summoned by the Attor- ney-General, Sir W. Atherton, to consider them in consultation, and when the advice to be given to the Government was agreed upon.” Sir R. Palmer thinks it his duty to add, that ‘no Gov- ernment ever had a more diligent, conscientious, and laborious servant than Sir W. Atherton; and that it is in the last degree unlikely that he would have been guilty of any negligence or unnecessary delay in the consideration of papers of such im- portance,” We thus learn that in the latter part of June, as the Amer- ican Counsel had supposed, Sir John Harding was unable to attend to the business of the Government. Next, we are in- formed that the papers might have been sent to his private house, to remain there unattended to; but é¢ is not asserted that they were so sent in fact. Nay, we are left to conjecture that they might have been sent to the house of Sir William Ather- ton; but it is not asserted that they were. Indeed, Sir Roundell Palmer speaks of “the delivery at their private house,” mean- ing apparently “houses.” Next, we are asked to believe that, because of the death of “Sir J. Harding and his wife,” and that of “Sir W. Atherton and his wife,” no means exist to explain the fatal delay in this case, by reason of which so much loss and shame have been brought on Great Britain. Was it ever before imagined that the death of an Advocate- General or an Attorney-General, and their wives, should leave a Government wholly without means of knowledge on such a subject, or should be put forward to explain such delay of ac- tion on the part of Ministers ? Who carried the papers to the house either of Sir John Harding or Sir William Atherton, or both? Why did Lord Russell permit six days to elapse without inquiring for the an- swer to his reference when every hour was pressing for action ? Who brought the papers away from the place in which they were, whether the house of Sir J. Harding, or the house of Sir 174 THE TREATY OF WASHINGTON. or other Englishmen, whose false representations de- ceived the British Government, and involved Great W. Atherton, if they ever went to either? Why were they not sent to the house of Sir Roundell Palmer? How did they ulti- mately get into the hands of Sir William Atherton and Sir Roundell Palmer ? Now, whatever Sir Roundell Palmer says I believe; and his declaration shows that there is no more reason to suppose the papers were sent, either to Sir J. Harding or to Sir W. Ather- ton, of which nothing is known, than that they were sent to Sir R. Palmer himself, to whom we know they were not sent, as he positively declares. Observe that Sir R. Palmer takes pains to commend the dili- gence, conscientiousness, and industry of Sir W. Atherton, from which it is plain to infer that he never received ‘the papers. Of course, the allusion to the death of him and his wife is as little to the purpose as that to the death of Sir J. Harding and his wife, or the insanity of Sir J. Harding. Another observation. According to Sir Roundell Palmer’s statement, there were two successive references to the Law Officers,—on the 23d and the 25th or 26th. He implies that each of these references might have been communicated to Sir J. Harding and to Sir William Atherton. He does not spe&k of the insane Sir J. Harding alone, as Lord Russell does; but is careful to make excuse in like manner for the sane Sir W. Atherton. Now, when he was called in for consultation on the evening of the 28th, did it not occur to him to inquire why these sets of papers, each one of which ought to have been communicated to Aim at their respective dates, were not so communicated ? Why speculate on the effects of the insanity of Sir J. Harding or the integrity of Sir W. Atherton? Why not as well lay before us conjectural inferences founded on the diligence or uprightness of him, Sir R, Palmer? Should not the suppression of the papers as to himself have suggested to him that they had been suppressed as to Sir J. Harding and Sir W. Atherton ? We revert now to Lord Russell’s statement to Mr. Adams, ALABAMA CLAIMS. 175 Britain in this perilous controversy with the United States, have ever been punished in any way. Indict- that the delay was caused by the insanity of Sir J. Harding, which made it necessary to call in other parties. What other parties? Why, forsooth, the other two “Law Officers of the Crown” disguised by Lord Russell under the designation “other parties.” But Sir R. Palmer assures us that the pa- pers [if, indeed, they were sent at all] must have been sent originally “to the Law Officers, ¢.¢., all three Law Officers.” Lord Russell therefore had no more right to impute the delay to Sir J. Harding than to Sir W. Atherton; for, even to this day, Sir R. Palmer can not say to which of the two, if to eéi- ther, the delay is imputable. And yet Lord Russell implies that the delay was occasioned by the insanity of Sir J. Har- ding, while neither he nor Sir R. Palmer ventures to affirm that the papers were ever sent to Sir J. Harding. In view of all these imperfect and irreconcilable statements, the presumption remains that some person in the Government had the means of traversing its intention, and withholding these papers from all the three Law Officers until the Alaba- ma was ready to sail, I do not say Lord Russell was that person; but I think he knows who it was; and if he desires to vindicate his honor, of which he and the Chief Justice say so much, he will best do it, not by “sneers” at the American Counsel, but by disclosing the name of the person in the For- eign Office who thus betrayed and dishonored the Govern- ment. All questions depending on this incident are now termi- nated. But the incident itself has permanent value as illus- trating the weakness of the British Government on the side of its so-called “ Law ‘Officers,’—that is, busy members of the Bar, distracted by their private practice, but in whose opin- ions the Government lives and moves; who have “ papers sent” to them by the Government in every great emergency, without their being actual and ever present members of the Government, like the “ Law Officers” of the United States. Here, in the United States, as in the case of the Maury, for 176 THE TREATY OF WASHINGTON. ments were, indeed, found against some inferior per. sons, but not against the responsible authors of the loss ‘and shame. which the Alabama and the Florida brought on Great Britain. Traces occasionally appear in the journals of London of some discontent on the part of tax-payers, who are now called on to respond to the United States for the dishonorable gains of the Lairds and the Millers. Expressions of sentiment in this respect appear in the recent debates in the House of Commons. Indeed, ifan account were taken of the injury inflicted on the British people by the actual losses in Confederate bonds purchased in Great Britain, and the profits lost on bonds of the United States not purchased there and sold instead in Ger- many; the losses on British ships and cargoes cap- tured in attempting to run the blockade of Southern ports; the payment by the Government to the United instance, “papers are presented to the Secretary of State by the British Minister on the 11th day of October, 1855, alleg- ing unlawful equipment in violation of neutrality by that ves- sel; the papers are sent to the Attorney-General on the 12th, and on the same day orders are given by telegraph to amar go the vessel, and are actually executed on the 13th at New York, Mr. Fawcett has not without reason called the attention of the House of Commons to this defect in the conduct of the law business of the British Government. The reply that the At- torney or Solicitor General should be allowed to continue in private business, in order to possess competent knowledge for the conduct of the business of the Government, is quite pre- posterous; it would be just as reasonable to insist that the Lord Chancellor or the Chief Justice of the Queen’s Bench must continue at the Bar. ALABAMA CLAIMS. 177 States of indemnity for the captures made by the Ala- bama, the Florida, and the Shenandoah; the rise in the cost of cotton and naval stores, and the conse- quent losses to commerce, to manufactures, and to la- bor, in Great Britain, occasioned by the prolongation of our Civil War: in reflecting on all this, it will be perceived that the hasty issue of the Queen’s Procla- mation, which gave to the Confederates a standing in Great Britain, and the means and spirit to continue hostilities, was an ill-advised measure, hardly less in- jurious to Great Britain than it was to the United States. These are matters which, as questions of di- plomacy between the two Governments, the Treaty of Washington and the Award of the Tribunal close up; but they remain as historical facts, full of admoni- tion to all Governments. Discite justitiam moniti. FILIBUSTER OBJECTIONS. Do the Rules, as construed by the Decision of the Treaty, disclose that due diligence, voluntary dili- gence, in the discharge of neutral duties, has relation to the exigency, and that the failure therein is not ex- cusable by the insufficiency of statute means of action? So thought Washington and Jefferson. They aeted, when no statute existed. It avails nothing to say that ours is a constitutional government, with legal forms which impede administrative action. If Con- gress has not imparted to the Executive adequate powers,—if, for want of such fit legislation, the Exec. utive can not act effectively in some given cases to prevent illegal expeditions, —if, in consequence there- 178 THE TREATY OF WASHINGTON. of, the subjects of any friendly State are injured,—if in a word, we should be so foolish as to insist on the privilege of possessing laws designedly imperfect, and which thus favor the violation of law, and which are insufficient to enable the President to discharge the international obligations of the United States — then it is proper that we should pay for the enjoy- ment of such a privilege by answering to any friendly Power for the injurious consequences of our self-im- posed impotency to perform the necessary duties of an independent sovereign State. There is no difficulty whatever in the question. If, on the one hand, in the case of war between two other Powers, the United States desire and intend to be neutral, it is to be hoped they will not suffer themselves to be misled by the interests of some ship- builders, or the wild schemes of some band of advent- urers, foreign or doméstic, or even by the sentiment of sympathy for this or that foreign cause, into per- mitting violations of the law of the land and of the rights of other States. If, on the other hand, the United States at any time desire or intend to go to war with some foreign Power, whether for induce- ments of sentiment or for objects of ambition, it is to be hoped they will manfully say so, in the face of the world, and will not sneak into national hostilities by means of the expeditions or equipments of private persons, citizens or foreigners, conducting war in dis- guise while the Government falsely pretends to be at. peace. All such “national activities,”—that is, acts of filibusterism,—whether fraudulently encouraged or ALABAMA CLAIMS. 179 insufficiently discouraged by any Government, are in- deed -fettered by the three Rules, as they were al- ready, so far as morality or law could do it, being classed by statute with piracy, perjury, arson, murder, and other kindred “ Pleas of the Crown.” True, there is tendency of opinion in the United States, as there is in Great Britain, to think that, all Yebellion is pre- sumptively wrong at home, and that all rebellion is presumptively right every where else; but that is a theory which has its inconveniences. In a word, there is no possible view of the subject in which jilibuster- ism is not a crime and a shame, without even the mean excuse of possible but dishonorable benefits to the United States. At all times, under all adminis- trations, private equipments in our ports, for the pur- pose of hostilities against any country with which we were at peace, have been treated as what they are, criminal violations of the law of the land and of the law of nations. Statesmen, jurists, and tribunals are all of accord on this point. Contracts for such equip- ments are “so fraught with illegality and turpitude as to be utterly null and void.” ... “There can be no question of the guilt and responsibility of a Govern- ment which encourages or permits its private citizens to organize and engage in such predatory and unlaw- _ ful expeditions against a State with which that Gov- ernment is at peace.” ... “This principle is univers- ally acknowledged by the law of nations. It lies at the foundation of all Government. It is, however, more emphatically true in relation to citizens of the United States.” Such was the doctrine of the United 180 THE TREATY OF WASHINGTON. States of old: such is their doctrine now, neither more nor less by reason of our negotiation with Great Britain. SALE OF ARMS NOT AFFECTED BY THE TREATY OR THE AWARD. Some persons have supposed that the Treaty affects the question of the sale of arms or munitions of war to a Belligerent. That is an error. Wherever, as be- tween the parties to the Treaty, the sale of arms was lawful before, it is lawful now; wherever it is unlaw- ful now, it was unlawful before. That is a question to which the action of the German Embassador in Great Britain during the late war between France and Germany has drawn the attention of all Europe, and which is certain to acquire importance in any future great war; but it is not touched, in fact, by the Treaty of Washington, and did not come before the Tribunal of Geneva. QUESTION OF SUPPLIES OF COAL. One specific objection to the Rules of the Treaty, and only one, of any apparent force, has passed under my observation, that of the Austrian statesman, Count von Beust: the suggestion, namely, as to the second Rule, relative to coaling and refitting in neutral ports, which, it is alleged, “gives to England, through her possession of neutral stations in all parts of the world, a palpable advantage over other States, which have not the same facilities at command.” This objection is one of apprehension, rather than ALABAMA CLAIMS. , 181 of fact. When the United States and Great Britain shall, in conformity with the Treaty, bring the new Rules to the knowledge of other maritime Powers, such Powers will of course present for consideration all proper objections or qualifications to those Rules. Count von Beust goes on to speak of the declara- tion made by Austria, Prussia, and Italy in 1866, which indicates that he was considering the subject in the relation of contraband rather than of simple re- fitting in neutral ports. But the precise question of the supply of coal in neutral ports is not prejudged by the Treaty of Washington, nor by the opinions of the Tribunal of Arbitration. The United States are quite as much interested in having access to supplies of coal “at neu- tral stations in all parts of the world” as Austria, or Prussia, or Italy; and we may presume that Count Sclopis did not fail to reflect on the interests of Italy in this behalf. One of the “Considérants” of the Award had for its special object to prevent misconstruction of the second Rule. We quote it as follows: “In order to impart to any supplies of coal a character in- consistent with the second Rule, prohibiting the use of neu- tral ports or waters as a base of naval operations for a Bellig- erent, it is necessary that the said supplies should be connect- ed with special circumstances of time, of persons, of place, which may combine to give them such character.” Count Sclopis explains the force of the Decision as follows: “Quant 4 la question de Vapprovisionnement: et du charge- ment de charbon, je ne saurais la traiter que sous le point de 182 THE TREATY OF WASHINGTON. vue d’un cas connexe avec l’usage d’une base d’opérations na- vales dirigées contre un des Belligérants, ow @’un cas flagrant de contrabande de guerre. Je ne dirai pas que le simple fait @avoir alloué une quantité de charbon plus forte que celle né- cessaire aux vaisseaux pour regagner le port de leur pays le plus Voisin, constitue 4 lui seul un grief suffisant pogr donner lieu & une indemnité. Ainsi que le disait le Chancelier d’ Angleterre, le 12 Juin, 1871, 4 la Chambre des Lords, l’Angleterre et les Etats Unis se tiennent également attachés au principe pratique qu'il n’y a pas violation du droit des gens en fournissant des armes aux Belligérants. Mais si cet excédant de proportion dans l’approvisionnement de charbon vient se joindre 4 d’autres circonstances qui marquent qu’on s’en est servi comme d’une veritable res hostilis, alors il y a infraction 4 la deuxiéme Régle de l Article VI. du Traité. C’est dans ce sens aussi que le méme Lord Chancelier expliquait dans le discours précité la portée de la derniére parte de la dite Régle.” The same point is treated by Mr. Adams as fol- lows: “The supply of coals to a Belligerent involves no responsi- bility to the Neutral, when it is made in response to a demand presented in good faith, with a single object of satisfying a le- gitimate purpose, openly assigned. , “On the other hand, the same supply does involve a respon- sibility if it shall in any way be made to appear that the con- cession was made, either tacitly or by agreement, with a view to promote or complete the execution of a hostile act. “Hence I perceive no other way to determine the degree of the responsibility of a Neutral in these cases, than by an exam- ination of the evidence to show the intent of the grant in any specific case. Fraud or falsehood in such a case poisons every thing it touches. Even indifference may degenerate into will- ful negligence, and that will impose a burden of proof to excuse it before responsibility can be relieved.” Mr. Adams, it will be noted, dwells on the ques- tion of zntent in this matter, as he does, indeed, in ALABAMA CLAIMS. 183 each one of his opinions, to the contrary of the line of reasoning followed by the British Arbitrator. Finally, in assenting to the Decision, the Viscount of Itajubé remarked that, “ with regard to the supply of coal, he is of opinion that every Government is free to furnish to the Belligerents more or less of that article.” Thus, the tenor of the Decision of the Tribunal, and the commentaries of the Arbitrators thereon, combine to show that the second Rule can not have the effect ascribed to it by Count von Beust. Besides which, the latter greatly errs in supposing that the numerous naval stations possessed by Great Britain in different parts of the globe give to her so much advantage to the prejudice of other maritime Powers. She pays dearly for such benefits as she herself derives from those establishments, in the cost of maintaining them, whether in peace or in war; and if, while in a state of neutrality herself, she re- fuses hospitality to others [and she must do it to all, if she does to one], she forces other Powers to ac- quire similar establishments to be conducted with equal exclusiveness, or she is constrained to incur the risk of the charge of partiality as between several Belligerents. Hence, it is not for the interest of oth- er Powers to overstretch the responsibilities of Great Britain in this respect; and it is for her interest to deal justly and impartially with such other Powers. Great Britain was not condemned by the Tribunal ‘because of the supply of coals-to Confederate cruisers in her Colonial ports, nor merely because those cruis- 184 THE TREATY OF WASHINGTON. ers were permitted to pervert the privilege of hospi- tality into making a base of operations of Nassau or of Melbourne. The recognized fault in the matter of the Shenandoah was mainly the augmentation of her crew at Melbourne, and the addition of equip- ments, without which she could not have operated as a cruiser in the North Pacific. In the case of the Alabama, and especially that of the Floréda, the fault was in allowing them to come and go unmolest- ed, and even favored, in the Colonial ports, when the British Government could no longer pretend to be ignorant of their originally illegal character, nay, when it was now fully aware of what Mr. Adams calls the “continuous, persistent, willful, flagrant false- hood and perjury,” and the “malignant fraud,” which attended the equipment of the Confederate cruisers in Great Britain. It was this class of facts, and not any such secondary consideration as the supply of coal, which turned the scale against Great Britain in the opinions of the Arbitrators. No: neither the Treaty of Washington, with its Rules, nor the Decision of the Tribunal of Geneva, has inaugurated any new policy of neutrality in the United States, nor created for them any rights or any duties not previously possessed by and incum- bent on the Government. WHAT THE UNITED STATES HAVE GAINED BY THE AWARD. What, then, it may be asked, have the United States gained by the Treaty of Washington, and by the Arbitration ? ALABAMA CLAIMS. 185 We have gained the vindication of our rights as a Government; the redress of the wrong done to our citizens; the political prestige, in Europe.and Amer- ica, of the enforcement of our rights against the most powerful State of Christendom; the elevation of maxims of right and of justice into the judgment-seat of the world; the recognition of our theory and poli- cy of neutrality by Great Britain; the honorable con- clusion of a long-standing controversy and the ex- tinction of a cause of war between Great Britain and the United States; and the moral authority of hav- ing accomplished these great objects without war, by peaceful means, by appeals to conscience and to rea- son, through the arbitrament of a high international Tribunal. That war, the great curse and scourge of mankind, will utterly cease because of the present successful instance of international arbitration, nobody pretends. Questions of national ambition or national resent- ment,—conflicts of dynastic interest,—schemes of ter- ritorial aggrandizement,—nay, deeper causes, resting in superabundant population or other internal facts of malaise, misery and discontent,—will continue to produce wars to the end of time. “Non, sans doute,” says M. de Mazade,—speaking of the acts of the Tribunal,—“la guerre n’est point bannie de ce monde, elle n’est pas remplacée par un tribunal de concilia- tion faisant rentrer au fourreau les épées impatientes d’en sor- tir: ce n’est pas moins un événement caractéristique et heu- reux que le succés de ce tribunal d’équité, de cette sorte de jus- tice internationale.” . .. We, Great Britain and the United States, have in 186 THE TREATY OF WASHINGTON. this matter shown that even a question affecting, or supposed to affect, national honor, may be settled by - arbitration ; and if we have not effected the establish- ment of international arbitration as the universal substitute for war, we have co-operated to prove by our example that the largest possible questions be- tween contending Governments are susceptible of being settled by peaceful arbitration. As Lord Rip. on truly says, in so doing, we have taken a great step in the direction of the dearest of all earthly blessings, the blessing of peace. Let us hope that other nations. may follow in our footsteps. Great Britain, to her honor be it said, has been true in this respect to the engagements she en- tered into at the Conferences of Paris. If we of the British race are more capable of reasoning in the midst of passion than others, then ours be the glory. In all this, the sacrifices of feeling have been on the side of Great Britain. We owe the acknowledg- ment to her, in all sincerity. Standing, as we now do, side by side, with every cloud of offense removed from between us,—two peoples, as Mr. Gladstone has well said, on whom the seal of brotherhood has been stamped by the hand of the Almighty himself,—we may-proudly point in unison to the homage we have both rendered to the cause of peace and humanity in the hall of arbitration at Geneva. MISCELLANEOUS CLAIMS. 187 CHAPTER MII. MISCELLANEOUS CLAIMS. TREATY PROVISIONS. Tue Treaty goes on to provide, in Articles XII. to XVIL inclusive, that all claims on the part of corpo- rations, companies, or private individuals, citizens of the United States, upon the Government of Great Britain, arising out of acts committed against the persons or property of citizens of the United States, during the period between April 13, 1861, and April 9, 1865, inclusive, not being claims growing out of the acts of the vessels referred to in the previous articles of the Treaty; and all claims, with the like excep. tion, on the part of corporations, companies, or private individuals, subjects of Great Britain, upon the Gov- ernment of the United States, arising out of acts com- mitted against the persons or property of subjects of Great Britain during the same period, shall be refer- red ‘to three Commissioners to be appointed, one by each of the two Governments, and the third by the two Governments conjointly: these Commissioners to meet at Washington, there to hear, examine, and decide upon such claims as may be presented to them by either Government. The stipulation, it will be perceived, does not cover 188 THE TREATY OF WASHINGTON. all existing claims of citizens or subjects of the one Government against the other, but only claims for acts committed against persons or property on either side between certain defined dates—that 3s, during the pendency of actual hostilities in the United States. It is a provision, supplementary in effect to the pre- ceding clauses of the Treaty, conceived in the appar- ent intention of thus closing up all subjects of conten- tion growing out of our Civil War. The Commission was duly organized by the ap- pointment of Mr. Russell Gurney, Commissioner on the part of Great Britain, and Mr. James S. Frazer, on the part of the United States, and of Count Corti, Envoy Extraordinary and Minister Plenipotentiary of Italy, Commissioner named conjointly by the two Governments. The Treaty contains detailed provisions for the prosecution of the business before the Commission, to be completed within two years from the day of their first meeting; and the contracting parties engage to consider the decision of the Commissioners absolutely final and conclusive on each claim decided by them, —to give full effect to such decision without any ob- jection, evasion, or delay whatsoever,—and to consid- er every claim comprehended within the jurisdiction of the Commissioners as finally settled, barred, and thenceforth inadmissible, from and after the conclu- sion of the proceedings of the Commissign. The Commissioners assembled at Washington on the 26th of September, 1871, and are assiduously en- gaged in the determination of the claims submitted MISCELLANEOUS CLAIMS. 189 in conformity with the Treaty, having before them as Agent for the United States, Mr. Robert S. Hale; as Agent for Great Britain, Mr. Henry Howard; with Mr. James M. Carlisle as Counsel, and Mr. Thomas C. Cox, Secretary to the Commission. The Commission will undoubtedly complete its du- ties within the time prescribed by the Treaty. PRIVATE CLAIMS ON GOVERNMENTS. The intimate relation, which exists between the different States of Christendom at the present time, has resulted in the necessity of providing special means for adjudicating the private claims of the citi- zens or subjects of one Government against another. It is one of the incidents of the gradual tendency of modern nations to substitute reason for force, and ar- bitration for war. The subject has not yet obtained from publicists and legislators the attention which, by reason of its great practical importance, and its intrinsic interest as an element of civilization, it deserves. It may well receive consideration here, both in itself and in its relation to other congenial stipulations of the Treaty of Washington. All the Powers of Christian Europe and America are of accord, and stipulate in their treaties of amity and commerce, to permit to one another’s subjects free ingress, residence, sojourn, and traffic in their respective territories, on the same footing with the inhabitants thereof, and with subjection to the laws of the land,-more or less complete, according to local 190 THE TREATY OF WASHINGTON. regulations and to the tenor of treaties. Total exemp- tion from the local Jaw is maintained only by the subjects of Christian States in countries outside of Christendom. In most of the countries of Christendom foreigners . are protected in their personal rights equally with the inhabitants, and, if wronged, have access to the tribunals for redress, even against injuries by the lo- cal Government itself. Generally, indeed, it may be said, with truth, that the rights of a foreigner are better protected than those of the inhabitants of the country itself; for, in addition to the tribunals of the country where he so- journs, the foreigner has the benefit of the Minister and Consuls of his own country. Of this favor the foreigner has occasional need, it is true; but it is a privilege susceptible of great abuse, by reason of the extravagant pretensions occa- sionally made by persons who may suffer any real or apparent wrong, and who are prone to elevate trivial grievances into international questions, to the annoy- ance of all Governments, and to the peril of the pub- lic peace. Most of such subjects of complaint are capable of being settled by the local tribunals, and ought to be. The laws of Rome lie at the founda- tion of the jurisprudence of all Europe and America alike; the forms of judicial administration are sub- stantially similar in all the States of both Continents; and in many of the cases of alleged wrong to foreign- ers, and of call for diplomatic intervention, the affair is one which, if at home in his own country, the party MISCELLANEOUS CLAIMS. 191 would never dream of withdrawing from the courts of law to make the alleged injury a subject of claim against his Government. And it would greatly tend to the harmony of States and the peace of the world, if treaty stipulations were entered into in order to di- minish the extent and restrain the frequency of such private claims on foreign Governments. In the present condition of things, every Govern- ment is forced by private importunity into becoming too often the mere attorney of the claims of its citi- zens against foreign Governments, in matters where the party aggrieved, if aggrieved, has ample means of redress before the tribunals, and where his grievance does not in the slightest degree affect the honor of his own Government. These observations apply especially to incidents occurring in times of peace, in which times the acts of willful injury, done by any Government to foreigners sojourning under its treaty protection, are few in number compared with the injuries done to its own subjects or citizens, by any, the best administered Government either of Europe or America. On such occasions, the injured party not seldom exaggerates his case, and, by appeals to the sentiment of ctizen- ship in his own country, seeks to force his Govern- ment to interpose in his behalf, so as to obtain for him summary redress by diplomatic means in disregard of the local law. Meanwhile, in times of war, the resident or sojourn- ing foreigner is still more solicitous to be exempt from those ordinary consequences of military operations to 192 THE TREATY OF WASHINGTON. which the inhabitants of the country are subject, and his solicitude is in proportion to the injuries to which he is thus exposed. This fact became conspicuous in the late war between Germany and France, and led to many complaints on the part of British subjects voluntarily residing at the seat of war, which con- strained Lord Granville to disabuse them of the idea that armies in the field were to fold their arms and cease to act, lest by chance they might, in the heat of action, disturb the peace of mind, or damage the prop- erty or person, of some commorant Englishman. Incidents of this nature are most of all frequent in times of civil war, especially in those countries of Spanish America, where militarism prevails, and the regular march of civil institutions is interrupted by military factions headed by generals, in contention with one another, and with the constituted authorities of the Government. For injuries thus done to its subjects, residing or ‘sojourning in a foreign country, every Government possesses of course the right of war or of reprisals, which, in effect, is the same thing, being the adoption of force as a remedy in lieu of reason: a method of redress for private injuries, which, however common formerly, is contrary to all the prevalent notions of international justice in our day. Hence, while it is the right and duty of every Gov- ernment to interpose on proper occasion, through its Ministers or Consuls, or otherwise, on the happening of any injury to its citizens or subjects abroad, yet the recurrence to force as a means of redress is admis- MISCELLANEOUS CLAIMS, 193 sible only in very rare and exceptional cases of ag. gravated wrong committed by the authorities of the foreign Government. The Government aggrieved in the person of its subject obtains, in many cases, the redress of the par. ticular injury by more or less earnestness of diplo- matic remonstrance. , If, however, redress be delayed for some sufficient cause to excuse the delay, and cases of alleged injury are thus accumulated, indemnity for the injuries done will be procured by diplomatic negotiation, if the in- jured Government be patient and persistent; for, much as there may be of evil in the world, and fre- quently as nations depart on occasion from the rule of right, yet, after all, the sense of justice among men and the conscience of nations prevail to such extent that, in the end, in most cases, mere appeals to reason suffice to obtain voluntary reparation at the hands of the injuring Government. Thus, without war, and without threat of war, the United States have obtained, by treaty, payment of indemnity, for injuries to citizens of the United States, from other Governments, such as France, Denmark, the Two Sicilies, Spain, with provision for the distri- bution of such indemnity, among our citizens, by our- selves, through the agency of commissioners appointed under Act of Congress. USEFULNESS OF MIXED COMMISSIONS. In other controversies of this class between the United States and foreign Governments, where agree- N 194 THE TREATY OF WASHINGTON. ment as to the nature of.the injury or amount of the indemnity could not be arrived at, mixed commis- sions have been established by treaty in numerous in- stances, to judge and decide the questions at issue be- tween the-two contending Governments. On three several occasions, within a brief period, the United. States and Great Britain have had re- course to the international tribunal of a mixed com- mission for settlement of unliquidated claims of citi- zens or subjects of one country against the Govern- ment of the other, namely, by the Treaty of July 26, 1853; by that of July 1, 1863; and by the present Treaty of Washington. Other examples of this occur in our earlier history. And the United States have had treaties of a similar character with the Mexican Republic, with the Republic of New Granada, with that of the United States of Colombia, and with the Republics of Costa Rica, Venezuela, and Peru. An eminent French publicist, M. Pradier Fodéré, observes: “T/arbitrage, trés-usité dans le moyen-dge, a été presque entiérement négligé dans les temps modernes; les exemples d’arbitrage offerts et acceptés sont deve- nus de plus en plus rares, par l’expérience des incon- vénients qui semblent étre presque inséparables de ce moyen, ordinairement insuffisant par le défaut d’un pouvoir sanctionnateur. Lorsque les grandes puissan- ces constituent un tribunal arbitral, ce n’est ordinaire- ment que pour des objets d’intérét secondaire.” As to the absence of any power to compel observ- ance of the award of an international tribunal, it may MISCELLANEOUS CLAIMS. 195 suffice to say that the “pouvoir sanctionnateur” is in the treaty of arbitration, which nations are quite as likely to observe as they are to observe any other treaty. It is that question of good faith among na- tions upon which the peace of the world stands. Undoubtedly, cases occur in which the internation- al discord or debate turns on questions where the na- tional honor or dignity is directly in play, and where the controversy becomes a matter of personal senti- ment; and in such cases it may not be easy to ob- tain an agreement to arbitrate. Such, indeed, was the view of Earl Russell, as we have already seen, with reference to the imputed want of due diligence of the British Government in the matter of the Alabama and the /lorida. But the influence of time, which softens sensibilities and resentments, and the preva- lence at length of the mutual desire of peace, may overcome even the most serious apparent obstacles to friendly arbitration, as the conduct of Great Brit- ain in expressing her regret for the incidents of which the United States complained, and in referring the whole subject to the Tribunal at Geneva, seems to demonstrate. OTHER FORMS OF ARBITRATION. Many instances have occurred in the present centu- ry of another form of arbitration, differing materially from mixed commissions, namely, submission to a sin- gle arbiter or tribunal, with complete authority to decide the subject of controversy. Thus, in 1851, France and Spain referred to the ar- 196 THE TREATY OF WASHINGTON. bitration of the King of the Netherlands the question of responsibility for certain prizes, an incident of the intervention of France in the affairs of Spain in the. time of Ferdinand VII. In 1827, Great Britain and the United States referred a question of boundary to the King of the Netherlands. In 1843, France and England submitted a question of indemmnities claimed by British subjects to the King of Prussia. In 1844, France and Mexico submitted a similar question to the Queen of Great Britain. In 1852, the United States and Portugal submitted to the Emperor of the French the question of the responsibility of Portugal for the destruction of an American. letter-ofmarque by the English in the port of Fayal. In 1858, the United States and Chile submitted a question of pri- vate loss to the decision of the King of the Belgians. In 1862, a difference between some English officers and Tecal Brazilian authorities was submitted to the arbitration of the King of the Belgians by Great Britain and Brazil. In 1867, Great Britain and Port- ugal submitted a question of territory to the decision of the United States. In 1870, Brazil and the United States referred a question of damages to.the decision of Sir Edward Thornton, the British Minister. In 1864, Great Britain and Peru submitted a question of private claims to the judgment of the Senate of the free city of Hamburg. We shall presently have to speak of a fact of the same class in the question referred by Great Britain and the United States to the Emperor of Germany by the Treaty of Washington. MISCELLANEOUS CLAIMS. 197 One of the earliest of our conventions of this nature was contained in the Treaty of 1818, in execution of an article of the Treaty of Ghent [1815], by which the United States and Great Britain stipulated to re. fer a certain question of indemnities to some friend- ly Sovereign or State. Afterward the Emperor of Russia was selected as such arbitrator, and rendered an award against Great Britain, in general terms, by reason of which it became necessary to provide by a second treaty [1822] for the appointment of a com- missioner and arbitrator on the part of the United States, and a commissioner and arbitrator on the part of Great, Britain, to assemble at Washington and as- sess damages under the umpirage of the Minister of the mediating Power accredited to the United States. This example is curious and instructive, seeing that the debtor Government, so to speak,—Great Britain,— in order to give effect to its engagement at Ghent entered into three successive international compacts with the United States,—one to appoint an arbiter, another to name him, and a third to give effect to his award. There could be no better illustration of the moral force of treaties of arbitration in the estimation of modern States. TENDENCY OF REASON AND JUSTICE TO PREVAIL OVER FORCE. These many examples, it seems to me, tend to man- ifest the increasing desire of modern nations to ter- minate all their controversies, if possible, by friendly means rather than by force. Where they can not 198 THE TREATY OF WASHINGTON. agree between themselves, they establish a mixed commission or appoint an arbitrator or arbitrators. On such occasions the contending parties do not se- lect an arbitrator in consideration of his being power- ful, like an Emperor of the French or an Emperor of Germany, but because of confidence in the ‘impartial- ity of the arbiter, as when great States refer a ques- tion to relatively feeble Sovereigns, like the King of the Netherlands or the King of the Belgians, or to the Senate of a little Republic like Hamburg, or even to five individual judges, like the Arbitrators of Ge- neva, or to a single person like Sir Edward Thornton. Nay, j in further proof of the availableness of this method of settling national disputes, we have Great Britain and the United States, in spite of their own particular quarrel, each trusting the other in a ques- tion between either of them and another Power. The same disposition of mind on the part of mod- ern Governments, that is, the assumption that a se- lected international judge or arbitrator will decide impartially, whether he be powerful or weak, and of whatever nationality he may be, appears in the con- stitution of mixed commissions. Generally these commissions consist of two commissioners, one ap- pointed by each of the respective Governments, with authority given to the commissioners to select an um- pire to determine any differences which may arise be- tween them; or sometimes the umpire is agreed on by the two Governments. Now, in the very heat of our late controversies with Great Britain, we consented to accept the British MISCELLANEOUS CLAIMS, 199 Minister, Sir Frederic Bruce, as umpire between us and the United States of Colombia. And at the same period of time, Great Britain accepted Mr. B.R. Curtis, of Massachusetts, as umpire under the Treaty for set- tling the claims of the Hudson’s Bay Company against the United States. And in this case, be it remember- ed, the Commissioners, just men boik, Sir John Rose and Mr. Alexander S. Johnson, agreed on their award ‘without troubling Mr. Curtis. Under the previous claims’ Treaty between Great Britain and the United States, the two Governments in the first instance agreed on ex-President Van Buren as umpire, and, on his declining, they chose Mr. Bates, an American Banker residing in London. Under the claims’ Treaty between the United States and New Granada, an American, Mr. Upham, of New Hampshire, was umpire; and another American, Dr. Francis Lieber, of New York, under the recent Treaty between the United States and the Mexican Republic. Strongest of all is the case of the Treaty between Paraguay and the United States, which submitted their controversy to an American citizen, Mr. Cave Johnson, of Tennessee, as sole arbiter, and he decided against the United States. Is it possible to misapprehend the moral of such facts? In all these various aspects of the subject, do we not perceive the sense of justice tending every day to penetrate deeper and deeper into the councils of nations, and the voice of reason, of which interna- tional Jaw is the expression, influencing more and more the action of Governments ? 200 THE TREATY OF WASHINGTON. THEORY OF ARBITRATION. Sovereign States, it has been said, should be trust- ed to do justice spontaneously, and without humbling themselves to be judged by an arbitrator. It might with just as good reason be said that all men should be trusted to do justice spontaneously, and without humbling themselves to be judged by a tribunal. The experience of mankind contradicts each of these propositions. Diverse views of the facts, and of the rules of right applicable to the facts, to say nothing of prejudice, passion, pride of opinion, are inseparable from human affairs, because they are conditions of the human mind, influencing the actions as well of men in political society as of individual men.