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THE

TREATY OF ¥ASIIINGTOK

ITS

NEGOTIATION, EXECUTION,
AND THE DISCUSSIONS IlELATLXG THERETO.

DY

CALEB GUSHING.

NEW YORK:
IIAUTER & BIIOTIIKUS, rUBLISIIEIlS,

FRANKLIN SqUAnL.

1S73.

Entered accoriling to Act of Congress, in the year 1873, by

IIAKPEU & BROTHERS,

lu the Office of the Librarian of Congress, at "Wasbinr'tou.

cirr

MARSARET W. CUSMIMC
JAN. 26, 1938

INSCRIBED,
IN TESTIMONY OF PROFOUND RESFECT,

TO

COUXT FREDERIC SCIOPIS, OF SALERAXO,

MINISTER OF STATE,
SENATOR OF THE KINGDOM OF ITALY.

CONTENTS.

FAOE

CHAPTER I. INTRODUCTION i>

CIIArTER II. ALABAMA CLAIMS 1^

Conduct of Great Britain toward the United States during the lato

Civil War 1-'

Negotiations by Mr. Seward ^ 7

Policy of President Grant '3

■ Overtures by Great Britain 20

StipidatJons respecting the Alabama Chiims -I

Airangements of Arbitration 2G

Tiie American Case 20

Explanation of Objections to the American Case 33

Agitation respecting the National Claims 3t

Cause of this Agitation ^'^

Discussion between the two Governments 42

English Misconception of American Sentiment -iS

Attitude of the American Government C2

Action of the American Agent and Counsel "<>

Presentation of Counter-Coses *"

vi CONTENTS.

r Ad r.

N'cgotifttions for ft 8ii]ii)IcmcnUil Treaty (j-

rrcscntaiiou of Arguments for tlio UiiiieJ States.... 00

Decision of the Arbiinitors respecting National Losses O'J

Scat of tlie Arbitration 74

Count Frederic Sdopis 77

Mr. Stacmpfli 80

Viscount of Itajubii. 84

Sir Alexander Cockburn 80

Mr, Cliftrlett rruntin Atlanii* l'«l

Secretary of the Tribunal ^4

Agents and Counsel ^ ^

EiTorts of the British Government to obtain Urnrgumcnt 'JD

Kulcs concerning tlio Contcrences of the Tribunal 1 00

Discussions of the Tribunal 10^

Sir Alexander Cockbuin's Cull for licargumcnt HI

Case of the Florida decided 1 1 4

Special Arguments ordered on Ccrlcin Toints 117

Case of the Alabama decided • 118

Ca.«0 of the Shenandoah decided 120

The Special Arguments 1-1

Question of Damages 121

Final Judgment of the Tribunal 125

Announcement of the Decision 123

Conduct of the Dritish Arbitrator 128

^<

CONTENTS. vii

r.voK

8ir Alcxnmlor CockbunrH IlcuHons for Dissent IL'S

licvicw of yir Aloxaiidcr Cockljuni'ij "Kciisdiis" i;3()

Opinions of the other Arbitrators 1 1'j

Keview of tlio Decision of the Tribunal ou National Losses 153

Decision ns to rrivato Losses lo3

Efiect of tlie Award.-. \Gl

Vftlidity of the Award 1 G7

Filibuster Objections 177

Sale of Anns not alTuoted by the Trcaiy or tlio Award LSD

Question of Supplies of Coal .' 1 SO

Wiiat llio United States have gained by the Award 181

CIIAPTEll IIL MISCELLANEOUS CLAIMS 187

Treaty rrovisions ; 187

Privato Claims on Governments 189

Usefulness of Mixed Commissions 103

Otiier Forms of Arbitration 10."»

Tendency of Reason and Justice to prevail over Force 107

Theory of Arbitration 200

^Yisdom of the present Mixed Commission 201

CHAPTER IV. THE NORTHWESTERN BOUNDARY-LINE.. 203

Provisions of the Treaty 203

Ilistorj- of the Question 205

Tho Award 221

viii CONTENTS.

PAQB

CHAPTER V. THE FISHERIES 22(}

llislor)- of the Question 220

Provisions of tlio Treaty of Wasliington 237

I'rtilMiMo Aiiiiiiiiii iif ttiiliMniiii^. . > ........,, '.'.'til

CIIArTKIl VI. COMMEIICIAL INTE/lVOUIiSE AND TIUXS-

POHTATION 241

Treaty rrovisions 24 1

Relation of tbo British rrovinccs to the United States 247

AITENDIX.— r///; TREATY OF WASHINGTON. 257

TUE DECISION AND AWARD 275

THE

TREATY OF WASIIINGTOK

CHAPTER I.

INTRODUCTION.

The Treaty of AVasiiington, ^vlletlle^ it be regard-
ed in the ligbt of its general sj^irit and object, of its
particular stipuLatious, 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 dilTerent
subjects of controversy between Great Britain and
the United States, two of tlieni 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 Avith 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 Tllli THEATY OF WASHINGTON.

to time to vex aud disturb the crooii. uuderstandiiii::.
of botli Governmeuts. Others of the questions, al-
thougli of more modern date, incidents of our late
Civil War, were all the more irritating, as l)oing 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 iu a satisfactory
manner. It will be readily seen how great was the
diplomatic triumph achieved by the Treaty of Wash-
iuirton.

It required pccidiar inducements and agencies to
accomplish this great result.

Prominent among the inducements were the pacific
spiiit of the President of the United States and the
Queen of Great Britain, and of their respective Cabi-
nets, and the sincei'e and heartfelt desire of a great
majoi'ity of the people of 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 Avisely
make the decisive advance toward reconciliation, by
consenting to dispatch five Connnissioners 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 Euroj^e, or

INTRODUCTION'. H

to maintain and consolidate peace in America. And
conferences, like those of Vienna, of Aix-la-Chapelle,
of Palis, may Lave embraced tlie representation and
settled the interests of a larger nnmber of nations; Imt
tbey 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, Ivobert C. Schenck, Samuel Nelson,
Ebenezer llockwood Hoar, and George H.Williams, —
eminently lit representatives of the diplomacy, the
bench, the bar, and the legislature of the United
States : on the part of Great Britain, Earl De Grey
and Kipon, 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 resjiected 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 necrotiators were hound 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 thediflerences 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 ^vant of forecast, or their willfully aggressive
ambition, — that the unspeakable calamities of war are
ever tlirust on tlie sutferiug world. IS^either 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 Arm direc-
tion of the President, hero in person, and of the Queen,
here in ellect 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 o^
this country had come to desire, with ecpial 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, ^vhich
received, the prompt approval of their respective
Governments; which has j)assed unscatlied 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 tlie international jurisprudence of Europe and
America.

Coming now to the analysis of this treaty, we find
that Articles I. to XI. inclusive make provisions for
tlie settlement by arbitration of the injuries alleged
to liave 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 XVII. 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 fri'owins: 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, Xova Scotia, and

14 ■ THE TREATY OF WASHINGTON.

New Brunswick, and tLc Colony of Prince Edward's
Island [including the Colony of Newfoundland by
Article XXXII.].

Articles XXVI. to XXXIII. inclusive provide for
the reciprocal free navigation of certain rivers, includ-
ing'- the Iliver St. LaAvrence ; 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, sul)ject to
legislative provisions hereafter to be enacted by the
several Governments.

Articles XXXIV. to XLII. provide for determining
by arbitration whicli of two dilVerent channels be-
tween Vancouver's Island and the main-land consti-
tutes the true boundary. line in that region of the
territoi-ies of the United States and Great Britain.

Each of these five distinct classes of cpiestions will
receive separate consideration.

ALAB.UIA CLAIMS. . 15

CHAPTER 11.

ALABAMA CLAIMS.

CONDUCT OF GREAT BRITAIN TOWARD THE UNITED STATES
DURING THE LATE CIVIL WAIi.

At file conclusion of tlie 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 AvhicU
had devoted themselves to maintainincr in arms the
integrity of the Union against the hostile etlbrts of
the Southern Confederation.

AVe charged and we believed that Great Britain
and her Colonies had been the arsenal, the navy-yard,
and the treasury of the Confederates.

AVe chaim'd and we believod that Confederate
cruisers, which had depredated largely on our shipr
ping and maritime commerce, never could have taken
and never held tlie 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 wdiicli were subsequently furnished fo them in
British ports, the insurrection in the Southern States
never would have assumed, or could not have retained,

IG THE TREATY OF WASHINGTON.

those gigantic proportions, wLicli served to render it
so costly of blood and of treasure to the whole Union,
and so specially disastrous to the Southern States
themselves.

AVe charged and we believed that, in all this, Gi'eat
Britain, through her Governnicnt, had disregarded
the obligations of neutrality imposed on her by the
law of nations to such manifest decrree as to have af-
forded to the United States just and amj)le cause of
'svar.

The United States, through all these events, with
"William II. 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 "vvrong and
the cessation from continuous wront^: which remon-
strances did, in fi\ct, 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 llus-
sell [then Lord John Russell], by whose negligence or
misjudgment the injuries had happened, remained in
charrre of the foreiirn 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 Jtonor 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 poweiful people, smarting under the

ALABAMA CLAIMS. 17

consciousness of injury, ninnifested grcfiter magnanim-
ity than "Nvas displayed in that emergency by the
United States.

We had on the sea lumdreds of ships of war or of
transport ; we had on hand liundreds of thousands of
veteran sokliers under arms ; we had ofllcers of huul
and sea, the combatants in a hundred battles : all this
vast force of war was in a condition to be launched
as a tlauiderbolt 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
liel]>lessness.

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 necjotiatc 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 gi.'uerous forbear-
ance before having recourse to the dread extremity
of ven!:i:eful hostilities acjaiust Great Britain.

NEGOTLVTIONS BY MU. SEWARD.

The event justified our conduct. To the prejudiced
and impracticable Lord llussell, there succeeded in
charice of the foreiirn 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 lie, successively entered upon negotiations
with the United States on that very basis of arbitra-

B

;^S THE TIU:ATY OF WASHINGTON.

tlon ^vllloh lie liad so pcivmptoi-ily rejected, but wliicli
;Mi'. Sew.'iril persisted in asserting as \viso in itself and
honorable to both Ciovcrnnients.

Tiiosc negotiations u\iled. But the rejection by
the Senate of the Clarendon -Johnson Treaty, ^vith
^[r. Svunner's conunentary thereon, if it had the ap-
parent ellect, at lirst, of widening the breach between
tiie two countries by the imtation it produced in En-
gland, yet nltiniately had the opposite elVeet by forc-
ing on public attention there n more general and
clearer ])erception of the urong which had been done
to the United States.

I'OLirY OK riU:slI)KNT CilJANT.

At this stage of the question. President Grant cuino
into olllee; and he and his advisers seem to havi' well
judged that it sulViced 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
Ciovernment.

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 ]\Iinisters to take into consideration the for-
eign relations of Great Britain ; and, as Lord Gran-
ville, the British ^Minister of Foreign Ailairs,has him-
self stated in the House of Lords, they saw cause to

ALABAMA CLAIMS. 1^

look Avitli solicltiulc on tlio uneasy relations of the
Britlsli (rovcrnnicnt Avitli the United States, and the
inconvenience thei'cof in case of possible conipli-.-a-
tions in Europe. Thus impelled, the (lovernnient
dispatched to AVashington a gentlenian, who enjoyed
tlic conlidence of both Cabinets, Sir John Ivose, to as-
certain whether o\-crtures for re-opening negotiations
would 1)0 received l)y the President in spirit an<»
terms acceptable to Great lii'itain.

It was the second time, in the present generatitiM
that the Ibreign policy of .I'higland had been directed
by u HenM(( of the imj)ortan('(^ to her of niuiiita'i'iiig
good relations \vith l\\v. United KStatch ; i<>r, by ai';,Mi-
ing from that ])oint, J^'rance, at the o])ening of war
with I'j'ussia, induced ihe Jiriti.sh (lovernment lo de-
Hi.st from those excessive belligerent ])retensions to
the i)rejudice of rcutrals, wlilch in foi'mer times had
served to embroil her with both France and the Unit-
ed States.

There is another fact, which, in my opinion, powei--
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 Gi'anville. J allude
to the President's recommendation to Corgress to ap-
point a commission to audit the claims of Aniericaii
citi7X'ns on Great I^ritain 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 c'rave and serious reflection
to Great Britain.

On arrivins? at Washintrtou, Sir John Rose found

20 THE TREATY OF WASHINGTON.

tlie United States disposed to meet witli perfect cor-
rcspoudencc of good-will the advances of the Britisli
Government.

OVF.RTUUES DY GREAT IIRITAIN.

Accordingly, on the 2(3th of Jannary, 1S71, the
British Government, throngh 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 rpiestions between the two
Governments allVcting the British possessions in
North Arvicrica.

To this overture ]Mr. Fish r(»i)lied that the President
would with i)leasure appoint, as invited. Commission-
ers on the part of the United States, provided the de-
liberations of the Commissioners should be extended
to other dilVcrences, — that is to say, to include the dif-
ferences growing out of incidents of the late Civil
War: without which, in Ids 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.

llie British Government promptly accepted this
proposal for enlarging the sphere of the negotiation,
with the result, as we have already seen, of the cou-
elusion of the Treaty of Washington.

ALABAMA CLAIMS. 21

STIPULATIONS RESPKCTIXG THE ALABAMA CLAIMS.

Tlio Treat}' begins by describiug the diiVerences,
^vllicll ^\•e arc now considering, as differences " grow-
ing out of tlio acts committed ]jy the several vessels,
wliicli 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 genetically
kno^vn as the Alabama Claims.''''

Note that the subject of difference is stated in terms
of absolute, although specific, nniversality, as all the
claims on the part of the United States growing out
of the acts of certain vessels. No c.xcejition is made
of any particular claims growing out of those acts.
And i-eference is not made to certain admitted claims
by tlie 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, "arc not admitted by the
British Government."

At the same time, the Biitish 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

22 THE TREATY OF WASHINGTON.

the said claims, growing out of acts committed by the
aforesaid vessels, and generically kuown as the Ala-
havia Claims, shall be referred to a Tribunal of Ar-
bitration to be composed of five Arbitrators, a])point-
cd in the following manner, — namely, one by the Pres-
ident of tlie United Scates, and one by the Queen of
the United Kii-^gdom, with re(|uest to the King of
Italy, the President of the Swiss Confederation, and
the Enijieror of Brazil, each to name an Arbitrator;
and, on the omission of either of those personages to
act, then Avith a like request to the King of Sweden
and Norway.

Tlie 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 imjiartially and carefully to examine
and decide all questions which shall be laid before
tliem on the part of eitiier Government.

In deciding the matters submitted to the Arbitra-
torsj it is provided that they shall be governed by
certain rules, whidh 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 tliligcncc to prevent the littinrj out, arm-
inij, or equipping, -within itf. jurisdiction, of any vessel wliieh it
lias reasonable ground to believe is intended to cruise or to
carry on war against a Power Mith which it is at peace; and
also to use like diligence to prevent the departure from its ju-

ALABA^IA CLALMS. 23

rioulction of any vessel intcndcHl to cruise or carry on war as
above, such vessel liaving been specially adapted, in whole or
in part, witiiin o'lch jurisdiction, to Avarlike use.

" •Secondly, not to i>ormit or sutler either belligerent to make
use ofils ports or waters as the base of naval operations against
tiio otlicr, 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 tlie foregoing rules as
a statement of principles of international law wliicli
"were actually in force at the time when the claims in
question arose; but, in older to evince her desire of
strengthening the friendly relations between the two
countries, and of malting 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 priucijnes
set forth in these rules.

And the Parties proceed to stipulate to observe
these rules as between themselves in the future, and
to brimx 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: Tilt: TREATY OF WASHINGTON.

Arbitrators and to tlie agent of tlie otlicr Party, as
soon as may "be after the organization of tlie Tribu-
nal; that ^vitllin four months after the tlelivery on
both sides of the ^v]•itteu or printed case, either I'arty
may, in like manner, deliver in duplicate to each of
tlic 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 ai'gument showing
the points and referi'ing to the evidence upon which
Lis Government relies.

No express provision for the appointment of coun-
sel ai»pears in the Treaty ; but they are recognized
in the clause which declares that the Arbitrators
may, if -they desirq further elucidation with regard
to any point, requiro a wi-itten or printed state-
ment or argument, or oral argument, by counsel npon
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 Triljunal shall first determine as to
each vessel separately, whether Groat Britain Las, by
any act or omission, failed to fulfill any of the duties
set forth in the Treaty rules, or recognized by the

ALABAMA CLAIMS. 25

principles of international law not inconsistent with
sucli rules, and shall certify such fact as to each of
the said vessels. This decision shall, if possible, he
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 AVashington, 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 th;it
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 fjiilure, 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 Bepre-
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 Assessors, should such
Board be appointed, " as a full, perfect, and final set-

20 THE TREATY OF WASHINGTON.

tlcincnt of all tLc claims" in qiicstiou ; and further
engage that " every such claim, Avhethcr the same
may or may not have been presented to the notice
of, made, preferred, or laid heforc the Tribunal or
Board, shall, from and after the conclusion of the
])roceedings of the Tribunal or Board, be considered
and treated as fnially settled, barred, and thenceforth
inadmissible."

AUHANGEJIENTS OF AniUTRATION.

The aj)j)ointnient of Arbitrators took place in duo
course, and with the ready good-will of the three neu-
tral (lovernments. The United States ajipointed 'Mv.
Cliarles Francis Adams; Great Britain a])pointed Sir
Alexander Cockburn ; the King of Italy named Count
Frederic Sclopis ; the President of the Swiss Confed-
eration, ]\[r. Jacob St.Tm})!!! ; and the Emperor of
Brazil, the Baron d'ltajubji,

ISh: J. C. Bancroft Davis was appoin^.ed Agent of
tlie United States, and Lord Teuterden of Great
Britain.

The Tribunal was organized for the reception of
the case of each Piu'ty, and held its first conference on
the loth 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
Tril)unal.

I observe in passing, as will be more distinctly seen

VT-

ALABAMA CL/^IMS. 27

hereafter, tliat tlic personal fitness of Count Sclopis
also rendered it eminently proper that lie should pre-
side; for he was the senior in age of all tlic 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
Presidrnt of the Swiss Confederation to reconunend
some suitable person to act as the Secretaiy of the
Tribunal. Mr. Stanni^lli named for this olHcc Mr.
Alexandre Favrot, and he was accordingly appointed
Secretary.

Tlie printed Case of the United Slates, with accom-
panying documents, was filed by jNIr. 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 \mtil the
loth of June next ensuing, subject to a prior call by
the Secretary, if there should Ix; 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, ven-
fied by the signatures of the President and Secretary,
and of the agents of the two Governments.

lu these opening proceedings, that is, at the very

28 THE TREATY OF WASHINGTON.

earliest moment possible, signs became visible of
tlie siuiruiar want of discretion and trood sense of
the "enfani terrible," ostentatiously ^j/'o^-to/cy/ "Lord
Cliief Justice of En^rland;' whom the r>ritish Govern-
ment liad placed on the Tribunal.

The vernacular tongue of Count Sclopis was Ital-
ian; tliat of the Baron d'ltnjulju, Portuguese; and
that of Mr. Sticmplli, (lerman. Count Sclopis spoke
and read English, and ]\Ir. Stiemplli read it. All the
Arbitrators, liowever, were well acquainted with
French; and it was in tliis language that they com-
municated with one another, whether in social inter-
course or in tlu' discussions of the Tribunal. Thus,
Ave had befoi-e lis a Tribunal, the member^ of which
did not either of them make use of his own language
in their conunon Inisiness; 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 \uitil the organization of the Trilni-
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 uot provided for, by the Brit-
ish Govermnent.

The American " Case " and documents are contain-
ed in eiirht volumes octavo, which consist in all of

ALABAMA CLAIMS. 20

5442 pages, ns reduced to a common standard, that of
the printing by Congress.

The I^ritisli "Case" and documents fill, in tlic re-
print by Congress, three volumes octavo, consisting of
2823 pages.

Perusal of the American and British Cases, and of
their accompanying documents on Loth sides, brings
ns to consideration of the peculiarities in the course
of argument and trial presci'ibed by the Ti'caty.

In ellect, the United States were the i)lainti}ls, 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 recoveiy of damages in reparation of
alleged injuries.

In connnon course, the jjlaintilV's counsel Avould
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 ])lainti[l''s counsel
in final close for the plaintifi'.

Here, on the contrar}^, the defendant's opening argu-
ment and defensive proofs went in at the same time
as the ])laintiif's opening alignment and proofs, each
imder the name of the "Case" of the respective Party.

The Britisli Case, of course, could not answer the
American Case, save by conjecture and anticipation
founded on common knowled2:e of the subject-matter.

The respective Counter-Cases of the Parties were
to go in together, in like manner, in April, and their

30 TIIi: TUKATV OF WASHINGTON.

respective ArLCuuieiits in June : so tlmt iLo Counter-
Case3 "would on each side be response to tlie previous
Cases, and the Arguments to the previous Counter-
Cases.

Tills course of presentation -was. in no sort prejudi-
cial to the United States, as plaintlfls, and was exceed-
ingly advantageous to Great Britain, as defendant.

THE AMERICAN CASE.

Nevertheless, when our " Case " went in, — tliat 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 j-jlace for re])lying to it were in the l^ritish Coiui-
ter-Casc, and not in the ne\vs])a])ers of London or in
the Ih'itish Parliament.

Similar misconception occurred subsequently with
r(\gard to the An^.erican Argument; the Counsel for
(Jreat I>i-itain thinking that lie ought to liavc the op-
l^ortunlty of replying, as will be e\i)lained hereafter,
and losing sight of the fact that the British Govern-
ment had already argued th.e 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 dundj for a month, and then j^roduccd
an ex])losion of clamor, which did not cease for three
or four months, and \intll the final decision of the
Tribunal of Arbitnition.

The leading journals of ICngland, wliethcr daily or
weekly, such as the London Times, Telegraph, and

ALABAMA CLAIMS. Gl

News, tlic Saturday Kevlew, llic Spcctatoi-, llic Pall
jNIall Gazette, the jManchestcr Guardian, and otlicr
Britisli journals generally, are certainly conducted
■with great ability, and are second, in cliaracter and in
value, to no others in Europe. lu view of Avhicli it
must be confessed that the outcry which they made
against the American Case seemed to me at the time
to be altogether unworthy of them and of England.

It ^va9 my opinion on reading the American Case
for the first time, and is my opinion now, after re-
l)eated 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 tempcr-
ftto in language and dignified in si)irit, as becomes
any state paper which is issued in the name of tlu-
United States.

I do not mean to say that it is so cnhl 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 Bi-itain, and Great Brit-
ain has no ri'dit to criticise the United States.

AVe 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 don\inant ])urpose or
special expectation of pleasing Great Britain.

But there is no just cause of exception to the gen-
eral tenor, sjiirit, or stylo of the American Case. Its
fiicts are pertinent ; its reasonings are cogent; ilsccm-
clusiouH are logical: and in all that is tlio true ex-
planation of the emotion it occasioned in England.

02 THE THE AT V 01' WASHINGTON.

Intclligviit IK'0])](.' llieiv, oil reading tlic American
Case, tlieii opened tlieir eyes universally to the fact
that Great Britain was about to he tried beibre a lii<di
court constituted by three neutral Governments.
That was not an agreeable subject of reilection. 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 Avas not
an agreeable subject of reilection. 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 charired
the i^ritish Ministers uiih unfiiendliness to the
United States for a certain jieriod of the Civil AVar.
])Ut the charge Avas ])roved by citing the declarations
of those ^Ministers; it Avas not, and could not be de-
nied by any candid Englishman; it is admitted by
Sir Alexander Cockburn in the dissenting 02)inion
which \\v fdi'd at the close of the Arbitration. And
the charge was pertinent, because it e.\])lained the
ncLrliirent acts of subordinate liritish 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 Tdinisters.

If there be any person at the present day, Avho is
inclined to call in question the truth of the foregoing
I'cmarks, he is earnestly entreated to read the Amer-
ican Case now, in the light of the adjudijed (juilt of
the British Government, and lie will then see ample

ALABAMA CLAIMS. 03

cause to approve tlic reason, tbe dignity, and the tem-
per of that Case.

EXPLANATION OF OnjECTIONS TO' THE AMERICAN CASE.

Tlie truth undoubtedly is,. that discontent Avith the
Treaty itself liad much to do in England Avitli objec-
tions to the " Case." Tlie British Ministers had ne-
gotiated tlie Treaty in perfect good faith, and in well-
ft)muled conviction of its ^visdonl, of the justice of its
provisions, and of its not contlicting -with the lionor
either of Great Britain or of the United States. Par-
liament had accepted the Treaty without serions oj)-
position, and -with but little debate, except on the
very trivial lyarty question Avhether it was more or
less favorable to Great r)ritain than the conventit)ns
negotiated by Lord Stanley and the Earl of Claren-
don. And Great Britain, as a nation^ had, beyond
all ■i")crad venture, heartily approved and welcomed
the conclusion of the Treaty.

But, on reading the American Case, and reflecting
on the constitution of the jn-oposed Tribunal, many
En-^dishmen vielded to a sentiment of undue estimate
oU'JngUah law and 'K)i<jlhli 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 Ic.irned
to rcirard the common law with some al)atemcnt of
that feticJa\wi of devotion which was taught by Coke
and by Fortescue. But the statesmen appointed by
the three neutral Governments to act as Arbitrators

C

34 Tin: THI-.ATY OF WASHINGTON'.

at Gi'iicvn, nnd wlio, it was dearly seen, would l^e tlie
eflectivc judges iu the cause, were not likely to share
the English opinion of tlic common law of England.
And these thi'ee Arbitrators were persons outside of
the range of the o])servation, 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 lieard to say, in conversation, that they
would juvfer a tribunal made up of Englishmen and
Ain'.'rieans. We shall fully comprehend how strong
this sentimeni Avas among average Englishmen, when
we rememlver that ex])ression was given to it in the
House of Lords by tin; Mar([uess of vSalisbury, who,
uotwithstandinLT his lii'di intelliLCence, and tlie cos-
mopolitan experience which men of his raidv possess,
could ehai'acterize as 'tinliuurn, and, therefore, as ob-
jectionable, an actual Embassador in France, an cx-
President of Swit/.erland, 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
lanii-uaire at several meetinijs of the Tribunal.

These, however, were but the transitory incidents
of ]>opular emotion and public discussion, and of sec-
ondary significance.

AGITATION llKsrKCTING TIIIO 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. 35

tance. I nllucle, of course, to ^vllat was fivr|ueiitly
spoken of us the question of "indirect claims."

The expression is incorrect, and, if admissi])le as a
popular designation, it must not be permitted to pro-
duce any misconception of the true question at issue.
It woulel be less inaccurate to speak of them as "claims
for indire(it or constructive losses or damages," which
is the more common phrase in the di])lomatic pa])ers;
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 publif! mind into devious paths of argu-
ment or conclusion.

When, in the instructions to Mr., T^Iotley of Septem-
ber 25th, ISGO, President Grant caused the British
Government to be informed, tlirougli tlie Secretary
of State, of the nature of the grievances of the United
States, he employed the following language :

"The President is not yet ])rcj)arcM] to ])roiK)uncc on tlio
question of the indemnities -whieli ho tiiinl<s due by Great
Britain to individual citizens of tlic United States for tlio de-
struction of their yiroperty by rebel cruisers fitted out in tlie
ports of Great Britain.

"Xor is he now prej)ared to speak of the reparation Mhich
lie thinks duo by the IJritisli Government for tlic Jai'irer ac-
count of tiic vast national injuries it has inflicted on the United
States.

"Xor does he attempt now to measure the relative eflecl of
the various causes of injury, whether by untimely recognition
of belligerency, by suflering the fitting out of rebel cruisers, or
li)y the supply of ships, arms, and munitions of war to the Con-
fcdcratcsi, or otherwise, in whatsoever manner.

so Tin: TREATY OF WASHINGTON.

" Xor (loos it I'lil uilliiu the scope oflliis (lisji.'itcli to disci'.ss
tlic iinporl.'uil cliaiim's in tliti nilcs orimblic law, the dcMii'iiblo-
)iosH (»r wliic'ii lias hit'M (U-iiionstratod by tlio inciik'iitH of tlio
last Ilmv years, tiow \iii»lfr consideralion, and uliicli, in view of
the inaritinio proininenoc of (lioat Uritain iind the United
States, it avouUI befit tlieni to mature and propose to the otlicr
States of Cliristendoin.

"All these are subjects of future consideiatioii, which, when
the time for action shall arrive, tlie President will consider
with sincere and earnest desire that all ditlerenccs between
the two nations )iiay l)e adjusted amicably and compatibly
with tlio honor of each, and to the promotion of future concord
between them; to which end ho will spare no elVort within the
range of his supreme duty to the right and interests of the
United States."

The IJritisli Government was in this way distinctly
notified tliut, in addition to the question of indemni-
ties to individual citizens for tlic destruction of their
property, tlie United States were entitled to re])ara-
tion ''for the larger account of the vast national in-
juries'' inllieted on them as a Government.

Tliat the British Government so luulerstood the
matter is proved by the tenor of the elaborate respon-
sive i)aper, styled " Observations," appended to Lord
Clarendon's dispatch to Sir Edward Tliornton of the
ensuing November; and our national claims are spe-
cifically conmu'uted 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 chiims are. In fact, througliout the

ALABAMA CLAIMS. 07

legal (ViMcussions liefure tlio Tribunal, the lirltifsli Gov-
enuncnt steadily luaiiitaincd that all th(^ claims of in-
dividual citizens lor the destruction of their vessels
Ly Confederate cruisers ^verc in the natun; of con-
structive, indirect, remote, and consc(|uential injuries
or losses, and, therefore, not recoverable in la^v, either
by the rnlea of the conunon law of England or of the
civil law as practiced on the Continent. Nothing-
could iore clearly show the inai)plieability and
equivc .ation of the })hrase "indirect" claims or losses
to designate any of the contents of the Treaty of
AVashimiton.

jManifestly, while private losses are supposable
which may be direct to individual citizens, national
losses arc supposable which may be direct to the na-
tion. On the other hand, ])rivate losses are supposa-
ble as well as national, which any jurist or any court
would pronounce to be indirect, remote, or conserpun-
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
Cfovernment vessel equally a case of direct loss to
i\\Q 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 mari-

3S 'IHi: TKKATY OF WAMIINGTOX.

time, as in tlie oxanij)le of the iini)ei1ect or (luasi war
In'twi't'ii tlie United States and France in the closinix
years of the hist century, can it be denied that the
injui'ies done to either nation by suoli liostib'ties on
the sea involve direct national as well as private
injuries?

On lirst impression, therefore, it niii^ht seem that
the Ihitish Government and British o])inion ran wild
in the chase of shadows, aiul 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 Britain could be justified
in revoking the arbitration agreed uj->on, — that is, in
elfect, violating the Treaty.

The Treaty referred to the Tril)uiial of Arbitration,
in terms unequivocal, f/^^ claims of the Uuitcd States
[jvow'uKj Old of the acts committed Z-// certain vessels,
and' (fcnericaUij known as ^''Alabama Claimsy It
might neeU to go outside of the Treaty into antece-
dent or contemporaneous diplomatic correspondence
in Older to ascertain the meaning of the j>hrasc ^^Ala-
/n(ma Claims;" but, in so doing, it would incontro-
vertibly ajijieai", at every stage of such correspond-
ence, that natio)i(d as Avell as individual claims were
conq>rehended, 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 tlie part
of the United States were for losses indirect or conse-
quential would be au ordinary question ofjurispru-

ALABAMA CLAIMS. 39

deuce, for the clecision of the Tribunal of ArLitrntlou,
and could not be a question ailecting 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 di])lon)atic correspondence which
ensued ou this subject, it was conclusively demon-
strated by j\[r. Fish, and was, in effect, admitted by
Lord Grai..ville, that no agreement, promise, or nnder-
standing existed on the part of the Commissioners to
qualify the clear and explicit language of the Treaty.

CAUSE OF THIS AGrfATION.

Hence we miirlit well infer or believe that tlie su-
perficial or apparent question, which so agitated jk'O-
pie of high intelligence and practical sense like the
Entrlish, was not tlie real or true one. It was not.
And, in order to understand the causes of tlie storm
of discussion wliich broke over Enirland wlien tlie
tenor of the American Case came to be fully apj'>re-
hended there, and of the real consternation which
seemed to prevail on the subject, it is necessary to
take into consideration certain facts wholly independ-
ent of the American Case and the Treaty.

On occ.'.sion of the rejection by the United States
of the Johnson-Clarendon Treaty, with ]\Ir. Sumner's
speech as a commentary on that act, England canie
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.

belli <.,^'ivncc of the Conrudomtcs, and to tlio conse-
quent facility ot' llic latter to obtain .supplies; and
also, though less so, yet in an ap})reciablo degree, to
the naval warfare which the Confederates carried on
against us from the basis of operations of tl^e ports
of Great Britain.

Careful perusal of the instructions to ^Iv. jNIotley
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, di<l not insist on the recog-
nition of V)el) gerencc as a continuing subject of claim
of (ircat Britain.

Conscious of this distinction, while the American
Commissioneis would not relinquish claim on account
of any thing done l)y Confederate cruisers, the British
Conunissioners were content with stij)ulations of in*
denuiity, which covered all national claims of the last
category, but did not reach back to claims on account
of tlic uni'eaMonaldenesM and i)i'em/iturity f»f th(( i)roc-
lamati(»n of tlie (^ueen.

Tiiat is \\\u\i is meant by ^Fr. Bernard in his lect-
ure at Oxford, where he sjieaks of the sjKcijic char-
acter of tlie stiiudationsi they wOi'o Hjiecilic, confined
fo acts of the Confederate cruisers. And tin? ])oint
is clearly involved in the debute in the House of Lords
(in ocv'asion of the pi'es«'ntatit)n of the Treaty, wlien
Lord Uussell objccteil that it was lio better for CJreat
Britain than the Johnson-Clarendon Treaty, and Lord
Ciranvilh' replied that it was better, because, while it
includes claims on account of acts of cruisers, it does

^VLABAMA CLAIMS. 41

not include claims on account of the Queen's proclama-
tion rccofaiizinj;; tlic belliirerence of the Confederates.

Nevertheless, when, in England, the an/tuiiait of
the American Case liad been read and pondered, —
^\•hen it was perceived that this argument inij)uted to
Great Britai;i co)istnicth'G cowpUcitij with tlie Con-
federates by reason of the culpable negligence of the
liritish Government to arrest the enter])riscs of such
vess(!ls as the AhiUuna^ the Florida,, and tlie Slieiian-
tloah, — and, finally, when it was tlius understood tliat,
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 JStates did,
in express terms as well as in legal intendment, hold
the ]5ritisli Government respunsi})l(' fur prolongation
of our Civil War and the cost of its prosecution, —
wlien all these relations of the subject came to be un-
derstood, the public mind in I'higland, and especially
the commercial mind, recurred at once to the event
wliich constituted at the time the domiiwmt pre-occu-
])atlon of iCurojie, namely, the war indemnity of six
milliards so I'ecently imj)osed by (lermany on I'l'ance.

In view of this, a panic terror seemed to sel/e upon
Lon»lon, similar to what occasionally occurs in iVew
York and other great money centres, ])roducing a
state of demonstrative emotion, which, to calm ob-
servers outside of such centres, looks like the sjtas-
modic agitation of men who have lost their si-nses,
rather than intelligent human action. Such, in<leed,
is all ])anie terror, nn exemplilled by numerous his-
torical incidents of the contagious inlluence, both in

42 THE TREATY OF WASIIDCGTOX.

peace and war, of the most trivial causes and tlie
most al)sard illusions.

On the present occasion, London appears to have
Leen shaken and tossed by the intense fear of Great
Britain being in turn called upon to pay some indefi-
nite milliards of war iudenmity to the United States.

DISCUSSION HETWKEN THE TWO GOVERNMENTS.

The British Government was very slow to take
this iiifccnon of popidar fear and commotion. Tho
Ameiic'in Case was duly filed on the 15th of Decern-
])QV. jMany copies of it were in the hands of tho
British jNlinisters in a few days thereafter. We do
not hear of any particular disturbance of mind on
the part of the ^linisters until the beginning of Feb-
ruary, that is, the lapse of six or seven weeks, when
the American ^Minister, General Schenck, telegraphed
to ^Ir. Fish as follows: " London journals all demand
that the United States shall withdraw claims for in-
direct damages, as not within intention of treaty.
Jfitu'.sfrf/ ahiDnoV To which jNIi". Fish responded
by telegra])h as follows: "There must be no with-
drawal af any part of the claim presented. Counsel
Avill argue the case as prej^ared, unless they show to
this Government reasons for a change. The alai'iu
you speak of does not reach us. AVe arc 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 freiL-'-y." Ministers and the
Parliament, instead of manfully taking a stand at tlie
outset in opposition to tlie popular current of delu-
sion and passion, got alarmed and lost their heads,
and said and did some thincrs not creditable to the
British Government. In the United States, on the
other liand, sundry persons were officiously over-zeal-
ous on the wrong side ; the newspaper press was a
little jlustered ; and some things were written and
published which it woultl liavc 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 believinir it would be broken or disrec-arded
by Great Britain.

lu 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 deniagogi/, 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 witli accusations of Great Britain. jMean-
wiiile, it is complacently assumed that self-possession
and stability, with unexceptional amiability toward
the United States, chai'acterizc political action in

^*i^.:

4-1 THE THEATY OF WASHINGTON. *

Great Britain. I tliiiik tlic absolute reverse of nil
this is the truth.

lu (ircat ])ritaiu the political institutioiiM of tlio
couutiy aru iiulefMuto, iiirvritten, unfixctl, without a
])ositlve 8tand-j)oint any where, shifting from day to
(lay; eonsiistlng, in foi'in, of Kings, Loixls, and Com-
mons, with(.)ut any visible lines of limitation between
them, and resolved to-day into an omnipotent Tarlia*
ment, one branch of which, the House of Commons,
arrogates to itself the character of u constituent na-
tional convention to im])ose on King and Lords any
change in the national institutions it sees fit, and as-
suming to itself the function, l)y means of a quasi
conwnittee of its body, to control absolutely the ad-
ministration, both foreign and domestic, of Great
Britain.

This qu((s} committee of the House of Commons,
to be sure, has associated with it another quasi com-
mittee of the House of Lords: which, all together,
formerly called ^Ilnisters of the Crown, now take to
themselves, in the very text of treaties as "well as in
domestic aflairs, 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. 45

If any siniple-niindcd person in the United States
happens to oherish those romantic illusions res])ect-
inir tlie constitution of Enirland wliich lie may have
ac([ulred from i)erusal of the Commentaries of Sir
William lilackstone, he has but to turn over the
leaves of some volume of Hansard's Debates in Par-
liament, or i>eruse authoritative (liscpiisitions on the
subject, like those of i\Iay an<l of JJagehot, to discover
'that, in knowledge and reading at hast, he has not
yet emerged from the mytliical epoch of the political
Instory of England.

Now, the submei'gence of the ])ower of the Crown
in Parliament, and of that of Parliament in the House
of Commons, and the commitment of all these j)Owcrs
to transitory nominees of the House of Commons, are
facts which, combined, have produced the result that
fjoveniinoU 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 iii. the
United States.

Mr. Gladstone is Prime Minister of Great Britain,
— that is to say, of three hundred mdlions of men, ag-
gregated into various States of Europe, Africa, Amer-
ica, Asia, and Australasia. But he holds all this pow-
er at the mce 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 liundred country gentlemen, which are

40 THE TREATY OF WASHINGTON.

not always easily ])evfovahle eitlier Ly eloquence or
].)y reason. An 1 during the progress of all great
measure.^^, including especially foreign negotiations,
which require to Lc left undisturbed in tlieir prog-
ress from gennination to maturity, he is subject to be
goaded almost to madness every day by vicious in-
teri)ellation.^, not only on the ])art of members of the
O])position, but even his own supporters in the House
of Commons.

IIow ditVerent is the s])ectacle of government in
the United States ! Here, the President, — that is, the
Prime ^Minister of the sovereign people, — is jdaced in
power for a fixed j)eriod of time, during which he is
politically independent of faction, and can look at the
temporary passions of the hour with calnuiess, so as
to judge them at their true value, and accept or reject
their voice according to tlie dictates of public duty
and the command of his conscience. Neither he nor
any of the mem])ers of his Cabinet are subject to be
badgered by factious or unreasonable j)ersonal inter-
rogation in either house of Congress.

Moreover, the House of Kepresentatives does not
]n-esume to set itself up as the supei-ior either of the
President or of the Senate. Nor is the Senate in the
condition of l)ein!:i: terrified from the discharire of its
duty by threats on the part of the President or of the
House of Ilejn-csentatives to subjugate its free will at
any iuomcnt by thrusting into it a batch of twenty
new administration Senators. Least of all does the
House of Kej^resentatives presume to posscsH and c.v-
ercise the powers of a constituent national convention,

ALABAMA CLAIMS. 47

to clian£rG in its discretion tlic. constitution of tlie
United k5tates.

Thus it was tliat, in the matter of the discussion of
tliis Treaty, Mr. Gladstone and the otlier Ministers
were tossed to and fro on tLe 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, — ^Ir. Glad-
stone did,l)ut Lord Granville did not, — let it not be
remembered against them personally, but charged to
the uncontrollable di^liculties of their position, and the
siiinal defectiveness and intrinsic weakness of the or-
ganlc 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 liighest thankfulness and gratulatlon
and patriotic pride, to see the Government of the
United States, — President, Secretary of Stalv., Cabinet,
Congress, — continue in the even tenor of their public
duty, calm, unruffled, self-possessed, as the stars in
heaven. The Executive of the United States is, it is
true, by its very nature, a thoughtful and selfcon-
tained power. Congress, on +he other liand, is the
field of debate and the place where popular passions
come into evidence, as the winds in the cave of ylv^Ius.
But, on this occasion, no more debate occuri'cd in
cither House than that least pos.sible expression of
opinion, which was necessary to show accord with iho

48 Tin: TUKATY OF WASIIINGTOX.

Executive. Even ilie Opposition, to its honor be it
said, conducted itself with comniendaLlc reserve and
consideration. How dill'erent from all tliis was the
spectacle exhibited by the British Parliament!

KNGLISII MISCONCm'TION 01' AMKRICAN SKNTIMKNT.

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 toj)ics of international reproach arc more com-
mon in England than liere. Tlic 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 sulyect of contempla-
tion in Great Britain. England perceives, but not
with i)orfect contentcdness, that the British race in
America ])ids fair soon to exceed in numbers and in
power the British race in Europe. And, above nil,
the gradually increasing force of those factions or
parties in (Jreat Hritaiii, which denmnd progressive
enlargement of the basis of suiTrage, e(|ual distribu-
tion of representation, vote by ballot, the separation
of Church and State, sul)division of the great ])rop-
erties in land, cessation of hereditary judicial and po-
litical ])ower, intellectual and social elevation of the
disinherited classes, — I say such i)arties or factions, in
appealing to the institutions of the United States as
a model, provoke criticism of those institutions on the
l^art of the existing depositaries of property and polit-
ical power. Owing tc these, and other causes which
might be indicated, it seems to me that the United

ALABAMA CLAIMS. 4«J

States encounter more criticism in Great Britain than
Great Britain does in tlic United States.

]\Ioreover, it should be borne in mind that much of
tlie inculpation of Great Britain which is perceived in
the United States ])roceeds from British immigrants, —
largely Irish, but in part Scottish and English, — who,
like other Europeans, are but too prone to come hei'e
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.

Tliere 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 unaccei)tablc, of course, to England.
We, the victors in that contest, should not munnur if
resentful memories thereof lin^jered for some time in
the breasts of the defeated party. I think, however,
such feelings have ceased to manifest themselves in
lOngland. It is to quite other causes, in my opinion,
that wo 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 aflbrd her suffi-
cient cause of complaint for continuing in hostile oc-

D

50 THE TRL.*TY OF WASHINGTON.

cupatiou of tl)e Nortlnvestcni Territory for so many
years after avo had made peace. I tliink she was
wron<T in issuinir the notorious Orders in Council, and
ill 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 extinguislied the rfghts 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 slic
was wrong in attempting to set up the fictitious ]\Ios-
(piito Kingdom in Central America. I think she was
wrung in the so-called San Juan Question. And so
of other subjects of dilVerencc between the two Gov-
ernments.

Now, it has liappened to me, in tlie course of a long
public life, to bo called on to deal ofhcially, either in
Congress, in the Cabinet, or at the Bar, with many of
tlieso ])oint!4 of controversy between tlio two (Jovern-
ments, of which it HuOices to mention for e\am])le
three, namely : 1, the Question of British Knlistmcnts;
2, the Hudson's Bay Comi)any ; and 3, the Alabanm
Claims.

In regard to the first of these questions, the United
States, and the ])ersons 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 bctVveen Great Britain and Ilussia, and altliongli
we replied by charging in i-csponse that the only vio-
lations of neutrality committed in the United States
during that war were conuuitted 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. lluglies"|, in ignorance of tlie facts,
it is to be ])resumed, \indertook 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 sufliccs to say that, on oc-
casion of a settlement of tlie claims of the Hudson's
Bay Company and of its shadow, the Buget's Sound
Agricultural Company, by mixed commission, under
the treaty of July, 180.'), it devolved on me, in behalf
of the United States, to assert, and to prove to the;
satistaction of the Conunission, that tlie jiretcnsions of
the Hudson's Bay Com})any were scandalously un-
just, and founded on i)i'emises of exaggeration and
usurpation injurious to Great liritain and to the Ca-
nadian Dominion, as well as to tlie United States.
I luive no reason to regivt or (pudify any thing said
or done by me in that alfair.

As to the third of these questions, namely, tlie A^a-
hama Claims, it seems diAicult to comprehend how
persistent demand of redress on the part of the United
States can be complained of by any candid English-
man noiL\ when the judgment of the Tribunal of Ar-

52 THE tui:aty of Washington.

bitration cstablislics tlic fact of tlic long tlenii'l 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 (Jreat Britain."

I confidently maintain, therefore, that neither the
British Government nor the people of Great Bi'itain
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.

A'rriTUDE OK THE AMERICAN GOVERNMENT.

As respects the deportment of the two G&venimenls
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 sj)eech from the throne and in debate
in Parliament, Avitli objections to that Case, without
previous statement thereof in diplomatic communica-
tion, was uncourteous toAvard the United States.

The dijdomatic discussion which ensued, beginning
with T^ord Granville's note of February 3, 1872, and
terminating Avitli the dispatch of ^Ir. Fish of April IG,
1872, may now be read, not with composure only, but
with sui)i'eme satisfaction, by any citizen of theUnited
States. The Secretary of State []SIr. Fish] demon-
sfrates 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
IJritisli 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 i\Ir. Fish, as follows :

"Thoy [tlio United States] desire to maintain the jurisdiction
of the Tribunal of Arbitration over all the unsettled claims, iu
order that, being judicially decided, and tlic questions of law
involved therci'i being adjudicated, all questions connected
■witli or arising out of the Alabama Claims, or 'growing out of
the acts' of tlic cruisers, may be forever removed from the pos-
sibility of disturbing the perfect liarmony 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 Treatv, is
a matter for the euprcmc determination of the Tribunal estab-
lished thereby.

"Should that august Tribunal decide tliat-a State is not lia-
ble for the indirect or consequential results of an accidental or
unintentional violation of its neutral obligation:;, the United
States will unhesitatingly accept the decision.

"Should it, on the other hand, decide that Great IJritaiu is
liable to tins Government for such consequential results, they
have that full faith in British observance of its engagements t<^
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 ])art of
the United States."

The American Government could not avoid feelino:
that the public discussion, which the British Minis-
ters had seen fit to excite, oi*, at any rate, to aggravate,

54: THE TUKATV OF WASi: INGTON*.

nial "llio discoiirtcKUH touu Jiiid jiiiuMlory iiitinuitioiiH
of the ^linistiy," iin])oscd on tlic United States a dif-
ferent line of action from tliat, wliicli might have been
adoj)ted 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 Avhich,
as it seems to me, deserves mention.

Of the five American Commis.sionei'H engaged in
the negotiation of the Treaty of Washington, two,
the Secretary of State [Mr. Fish] and our IMinister
at London [General Schenck], were oflicially occu-
pied in discussing the question on the Amei'ican Case
raised by the British Government*. The })ublislied
dispatches show uith what signal ability they dis-
changed this delicate dutv. iNIeanwhile, the three
other Commissioners, "Mv. Justice Nelson, Mr. Hoar,
and Mr. Williams, although inipUcdJtj accused on the
other side of taking some advantage of the nnsophis-
ticate<l innocence and simplicity of the British Com-
missioners, yet maintained perfect self-control in the
matter, speaking only when oflicially called npon to
speak, and otherwise leaving the subject where it be-
longed,— in the liands 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 irot
completely otY the track of reason and sense in a lect-
ure Avhich lie delivered at Oxford. Sir Stafford
Xorthcote let off a very inconsiderate speech at E.\«
eter. And Sir Edward Thornton made a not very

ALABAMA CLAIMS. ° 55

coiiHidrnito om! at Now York. Jiiit JCurl do (Jivy
and llipon, who Lad now become ]\Iarquess of Ilipon,
deported Limself with admirable dignity. It was, in-
deed, "wittily said, or reported to Lave been said, by^
Mr. Lowe, that Lord Ki])()n was going about veiy sick
at tLe stomacL of a niarquisate, wLicL Le would be
glad to tLrow up; but the reproacL'was wholly un-
deserved. Lord Eij)on manfully nu'iintained sik'ncu
wLilo to speak woukl liave 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
Oovernmeut.

ACTION OF THE AMERICAN AGENT AND COL'NSEL.

"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-

50 Tin: THICATY OF WASHINGTON.

glaiul, wliethcr in rarllament or in the Press, was un-
seasonable or indiscreet; uiueli of it factious toward
the British (lovernincnt itself; mucli 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, wluUever the Press
might say, and whoever should be in ])ower as jNIin-
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 alfairs quite absolutely, as if it were
the Government. ]5ut uobody 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 liowmuchsoever jNIr. Gladstone
and Lord Granville might feel annoyed by the din
of words around them, it would not induce them to
break faith Avith the United States.

3. It was not the voice of the I'^ixjlkh Press which
could seriously aflect us. AVe looked rather to the
state of opinion in the French, German, and Italian
speaking countries of Europe, which, on the whole,
thouLch ditlerinfc as to the lecjal ric:ht of the United
States to recover on the national claims, yet decisive-
ly agreed with us in affiniiing that those claims were

ALABAMA CLAIMS. 57

compi't'lientled wltliiu the scope of the Treaty as mahi-
tained by tlie United States.

Wliat Europe dreaded, wliat all European opinion
sought to prevent, was a rupture between XJreat Brit-
ain and the United States, to disturb tlie 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 l)y Great Britain to observe the stipulations
of the Treaty of Washington.

rUKSENTATION OF COUNTER-CASKS.

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
iiftect 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 TiiK tui:atv 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 argiuiientatively to the British
"Case," and brings forward a large body of docu-
mentary proofs, responsive to matters contained iu
that "Case," which, although utterly foreign to the
(piestion at issue, re([uired to be met, because con-
sidered material ])y Great Britain, namely, allegations
of default on the i)art of the United States in the
execution of their own neutrality laws, to the preju-
dice cf other Governments.

The introduction of all this matter into the British
Case, the iteration of it in the British Counter-Case
and the British Argiunent, 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 tlic angiy com-
plaints emitted in England against the American
Case.

The American Case contains no suir2:cstion 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 AVai", with strict application to the '■'■Alabama
claims." It charges that, in those transactions, the
British Government was guilty of culpable omission
to observe the re(piirements of the law of nations as
resjiects the United States, and with responsible neg*
ligencc in the nou-execution of the neutrality laws of

ALABAMii CLAIMS. 50

Great Britain. That was tlic very question present-
ed by the Treaty.

Great Britain professed to be so nuicli offended ])y
tlie charaeter of eertain of the proofs adduced in the
American Case, — rigorously pertinent to tlie 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 Avitli self-respect, — it would be
giving dignity to undignified arguments, — we were
told by the British Press. Meanwhile, the very mat-
ter Avhicli 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 iSir 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 liad not incurred responsibility fur
its want of due dilii^ence 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, liad not been animated by the spirit of
perfect fairness and justness, it ini(/1it liave 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 lier luthitual disregard of the
law of nations in illustration of her present conduct
'toward the United States. Wc might liave charged
that, while her btatcsmen contend that they could do

GO Tin: THKATY OK WASHINGTON.

notliing outsiilc of an Act of Parlianiont, tlioy liad no
such Act until 1810, and were tliereforc, i)rior to that
tiiiu*, confossL'dly ini])()tent, and wc might liavc added
uillfidly so, to oIjsctvc the duties of neutrality; wc
might have scrutinized lier national liistory to select
conspicuous e.\am])les of her acts of violence, in dis*
regard of the law of nations, against numerous States,
including ourselves; wo might luive api)ealed to ev-
ery volume of international law in existence, from the
time of (J rutins to this day, and cited page after page
to the conclusion of the unjust internatiomd policy
of (Jreat Hritain ; and wc might have argued from all
this to infer intentional omission of the British Gov*
ernment to prevent the escape of the Ahdxinia and
the FionWd.

iUit such arguments, you will say, would have hecn ,
forced, remote, of doubtful I'elevanco, and of a nature
ulVensive to England, lie it so: they would, if you
please, have been irrelevant, impertinent, otlensive.
And no such arguments arc 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 liiembcr of the Tribunal. In-
stead of defending its own conduct in the matter
at issue, the British Govermnent travels out of the
record to ilnd faidt 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

ALAJIAMA CLAIMS. 01

US ftiul oUiur States, uith ulilch tliat Tribunal liad
no ])0S8ible concern, — whicli it could not ]irctonil to
judge, — and of such obvious irrelevancy and imperii-
iiencc tliat not one of tlie Arbitrators condescended
to notice llieni except Sir Alexander Cockburn.

The ])resentation in tlio l^ritisli 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 net, coni])ared
with whicli, in jwsslble susceptlltility of blame, there '.f^..
is nothing to be found in any of the alllrmatlve doc-
uments i)rescnted by the American Government.

It was the cause of a singularly perverse incident,
namely, complaint of the l^rltlsli Press against the
American Argument for im])utcd 'Uii/cin(hic\^s in al-
luding to subjects, whicli had been forced upon our
attention by the British Case.

I mention these circumstances for the pui'pose of
sliowlng how relatively unjust it was to imi)ute of-
fenslveness 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 miirht see fit to ar-
gue our cause, as it would bo for the American Gov-
ernment to undertake to ]-)rescribo limits of dlsci'e-
tion in this respect to the Agent or Counsel of Great
Britain.

Thus, the 15th of April, looked forward to with so
much apparent di'cad by the British Government,

02 THE TREATY OF WASHINGTON.

passed away, leaving tlio great question unsettled, in
Avliat manner nltiniately to deal with the claim for
national losses preferred by the United States.

NKCIOTIATIONS 1011 A .SUITLEMENTAL TREATY.

A new series of events then ha])pened, which occu-
pied the period intervening between tlie loth of April
and the lolh of June.

It occurred to the two Governments that tlie dlfli-
culty might be disposed of by the exchange of diplo-
matic notes, which, in laying down a definite rule of
reciprocal internatiomJ I'ight on the subject of such
losses, should reserve or leave imimjiaired the ])rescnt
jiretensions of both Ciovernments. The Britit^h Gov-
ernment would not admit tiuit it was the intention
of the Treaty to cover national losses; the United
States insisted that it was, and refused to do any act
incomi)atible with this construction of the Treaty;
and, therefore, they woidd not withdraw any part of
the American Case, nor disavow the ,oj)inion that it
was within the province of the Arbitrators to consid-
er all the claims, aiul to determine the liability of
(treat liritain 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 woidd remove them for all future time as a
cause of dilfercnce between the two Governments.
To liold that this class of claims was not. disposed of
by the Treaty, — that is, was not a subject for the con«

ALABAMA CLAIMS. C3

sidoratioii of the Tribunal of Arbitration, — was to infer
that tliey 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 i)art of the
two Governments.

This well-intentioned eflbrt failed, because of the
persistent contention of the British Government that
the Treaty excluded from the Arl/itration the claims
for national losses advanced by the United JSti.tes.

yurther rellection on the subject satinfled 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 iritlidrax)
claims which were in liis opinion justified Ijy the
Treaty of Wasliington.

. Thereupon the President requested of the Senate
an expression of their dis])osition in regard to advis-
ing and consenting to the formal adoj)tion of an arti-
cle of treaty proposed by the Britisli Government, to
the eflect of stipulating that lie 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 set4brth
in ft preamble to the efiect that

C-i THE TREATY OF WASHINGTON.

"Such iinlircct claims as tliose for national losses stated in
the Case jucsented on the i)ait ol'tlic Government of tlie United
States . . . should not be admitted in princij)le as growing out
of the acts committed by particular vessels, alleged to have
been enabled to commit dejjredations on the shij)ping of a bel-
ligerent by reason of such want of due diligence in the per-
formance of neutral obligations as that whiclj is imputed by the
United Slates to <ireat Jiritain :"

wliich ])roposcd agivcment the prcamLle proceeds to
state, in the foiin of two separate declarations, — one
l)y Great Britain and one by the United States, —
each of them intelligible only by reference co pre-
vions i)art8 of the preamble : the whole to the cou-
clnsion t^.at the Piesident shall make no claim, on
the part of the United States, in respect of the indi-
rect clamis as aforesaid, before tlie Tribunal of Arbi-
tration at Geneva.

Tiie Senate, thinking that the recitals in the pre-
amble were not sulliciently exj)licit to furnish to the
United States satisfactory basis of transaction, pro-
loosed the following i.;ubstitute :

"Whereas both Ctoveriimeuts adopt for the future the prin-
ciple that claims for remote or indirect losses should not bo
admitted as the result of failure to observe neutral obligations,
so far as to declare that it Mill hereafter guide the conduct of
both (loverjiments in their relations with cacli other. Now,
tlicrcforc," 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 cime, doubted whether release from claim
of reparation for the present wrong done by Great

ALABAMA CLAIMS. 05

Britain to the United States niiglit not be purchased
too dearly by conceding to the United States, in con-
sideration thereof, indefinite and unlimited exemption
from responsibility for "wrongs of the same nature to
be infiicted in all future time by the United States
on Great Britain.

Further interchange of dispatches on tliis sultject
followed, the British Government insisting on modifi-
cation of the terms of arrangem'ent proposed by the
Senate.

But Congress had now adjourned. The loth 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 difiiculty, the British Government 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
liave" been concluded as contemplated by the two
Governments. Such n treaty, re(|uiring careful con-
sideration of phraseology, with discussion and e\j)la-
nations regarding the same, could not be concluded
in haste ])y 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 difiered 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

GO THE tui:aty of wasiiingtox.

this diiTercncc l)y siippleiueutal treaty. Only a few
weeks remained in wliieli to negotiate ; and the
parties were separated Ijy thousands of miles of
ocean. It was necessary, therefore, to negotiate, if at
all,l>y telegraph, — an operation quite as novel as had
been that of conducting the business of government
ill l'Vanc(» by means of j)ige()ns or balloons during the
siege of J'aris. Hut, befu'e it was ])ossible for the
parties to conclude a t ^Mty by telegi'a])h, the fatal
day arrived, greatly .o the embarrassment of the
British Government.

I'IUCSKNTATIONOf AUfiUMMNTS l-Oll TUK UNITKl) HTATi:s.

Yov the course of the United States in this exigen-
cy was j)lain before them: it w/is to present their
linal Argunu'iit t(^ the Tribunal of Arbitr/ition,in con*
formity with their own conception of their rights, just
as if ther(! were no conti'oversy on the point between
them and (Jreat liritain.

The President of the United States was inunova-
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 i\Iin-
ister at London, of the 2Stli of ^lay, lo72, the induce-
ment and object of the United States, in persisting to
retain tlieso claims before the Tribunal, are summa-
rily stated as follows :

ALABAMA CLAIMS. G7

1. "Tlic right under tlic Treaty to present lliem.

2. "To have iheni disposed of and removed from Anther con-
trove rs\'.

3. "To obtain a deeision either for or against the liability of
a neutral for claims of that description.

4. "If the liability of a neutral for such claims is admitted
in the future, then to insist on payment by Great JJiitain for
those of the i)ast.

T). "llavini; a case against (!roat lliilaiii to have the saiuo
principle ajjplied to it that may in the future be invoked against
the United States."

Of tlicso considerations, the last four, it is oLvioiis,
ai't^ tlie complete jiistlficjition of the insertion of our
nutiontil claims in tbe Treaty and of tlieir presenta-
tion in tlie^Case."

II(!nce the duty of the Agent and Counsel of the
United States, liaviiig eliarge oi the judicial investi-
gation pending before tlu; Triliunal of Arl)itrati<->n,
remained the same in the interval between l)ecend)er
ITitli, 1871, and June lotli, 1S7:2, wliatevcr diplomaiie
discussions or negotiations mi<2;ht be iroincr on Ijetween
the two Governments. Oiu' instructions were defi-
nite and peremi")tory, as the British Government well
understood, to prepare the Counter-Case for the Unit-
ed States, and tke final Argument, on the premises
of the Treaty as construed by the United States and
as explained in tlic American Case. Our Counter-
Case was prepared accordingly, as already stated, and
filed iu Encrlisli and in French before the Tribunal.
And in like manner we prepared our final Argument.

This Argument, consisting of an octavo volinue of
495 pages, after discussing fully the various questions
of fact and of law involved iu the submission to arbi-

GS THE TREATY OF WASHINGTON.

tration, proceeds to examine the partlciilai' claims, na-
tional v.z well as individual, — to maintain the jurisdic-
tion of the Tribunal over both classes of claims, — and
to argue the nature and degree of the responsibility
of (ireat Britain to tlie United States in the premises.
In fine, the Aigument is co-extensive with the " Case."
AVe repaired to Geneva in due time, and at the
meeting of the Tribunal on the 15th we presented
our Argument as re([\iired by the Treaty, and, for the
better information of the Tribunal, in French as well
as in English. Tiiat is to say, the Government of
the United States, through the means of its official
Agent, complied Avith 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 claiiH'4, national as well as private, precisely as
if no conti'oversy on the subject existed between the
two Governments. The United States were in condi-
tion to invoke the judgment of the Ti'ibunal, 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 montlis, in oi'der to aftbrd
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. 09

instructetl its Agent, to assent to a motion for ad-
journment on the part of Gi'eat Britain, provided the
British Argument -were filed in good faith, without
oflcnsive notice, or other ohjectionaLle accompani-
ment.

Tlius it l)ecame necessary for the British Govern-
ment to decide for itself how to act in the premises.
Tlie course adopted by it was to withhold its Argu-
ment, and to file a statement, setting forth the recent
negotiations for the solution of tlie difficulty between
the two Governments, and the hoi)e that, if time were
afibrded, 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 tlie British Counter-Case.

DKCLSION OF Tlin AimiTRATOUS RESPECTING NATIONAL

LOSSK.S.

Tliesc acts having been performed, the Arbitrators
adjourned, first to the iTth, and then to the 10th of
June, in order to atlbrd 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 10th of June communications
by telegraph passed between the respective Agents
and their Governments, and consultations took place
between the Counsel of botli 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 :

70 TlIK TREATY OF WASHINGTON. '

"Tl.o Arbitrators <1 j not ])roi)osc to express or imply any
opinion iii)on llic jwint thus in dilVcrcncc between tbo two
(iovcrninciits as to the interpretation or eflect of tlic Treaty,
but it seems to them obvious tliat tlic substantial object ot"
the adjourniiK'nt must be to give the tsvo (.Jovernments an ojv
port unity of detcrminintc "whetiicr tlic claims in question shall
or shall not be submitte*! to the decision of the Arbitrators,
and that any tlilVerence between the two (lovernmenls on this
jioint may make tlie adjournment uiijiroduclive of any useful
efl'ect, and, after a delay of many nuniths, during which both
nations may be kept in a state of painful suspense, may end in
a result which it is to be ])resumed both Governments would
equally deplore, that of makiuj^ this aibitration wholly abor-
tive. This being so, the Arbitrators think it right to state
that, after the most careful jtcrusal of all that has been urged
on the part of the (Tovernment of the United .States in rcs])ect
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 apjdicablc to such cases,
good foundation for an award of conijicnsation or computation
of damages between nations; and should, uj)on sucli princi-
)des, be wholly excluded from the consideration of the Tribu-
nal in making its award, even if there were no disagreement
between the two (lovernments ns to the conijx'tejicy of the
Tribunal to decide thereon. AVith a view to the settlement
of the other claims, to the consideration of which by the Ti'i-
bnnal no exce])tion has been taken on the part of Her IJritan-
nic Majesty's (lovernment, the Arbitrators have thought it de-
sirable to lay before the ]>artie3 this exju'cssion of the views
they have formed upon the question of ]Md)lic law involved, in
order tiiat, alter this declaration by the Tribunal, it may bo
considered by the Government of the United States Avhether
any course can be adoj)ted res))ecting the first- mentioned
claims wliich would relieve the Tribunal from the necessity of
deciding npon the ])resent api)lication of Her Britannic iMaj-
csty's Government."

Count Sclopis added tli.it it "was tlic intention of
the Tribunal that this statement sliould be consid-

ALABA5IA CLADIS. 71

orcd for the present to be confidential, — that is, suL-
ject to the discretion of either of the two Govern-
ments.

But wliat is tlie " question of puLlic law involved 'C
Is it the question of claim for indirect or consequen-
tial damages, as argued by the British Government i
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 arc: "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."

AVhy do they not? Because they are indirect?
Because they arc consequential? No such objection
is intinuited.

But although, in malving 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 ])lainly see when we come to review tlic en.sc)/i'
Lie of all the acts of the Tribunal. ^S^e 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 :

;2 Tin: THE AT Y 01- WASHINGTON'.

" Wu arc of ojiiiiion tliat tlic announcement this ilay made
liy the Tribunal must be roceivoa by tlic United States as dc-
tcrminativc of its judL^'ment on the ([uestion of i)ublic law in-
volved, as to whicii llie United States have insisted on taking
tlie opinion of the Tribunal. "NVe advise, therefore, thai it
should be hubmilted to, as jtreelnding the itropriely of further
insi.H(iii'4 \i].on the claims covered by this deelarati(MJ of tho
Tril)uual,aud that the United Slates, with (i view of maintain-
in;4 the due course of the arbitration on the other claims with-
out adjournnu-nt, shotild announce to the Tribunal that tho
Kaidclain\s covereil by its opinion will not be further insisted
tipon before the Tribunal by the I'nited States, and may bo
cxeluiled from all consideration l)y tho Tribmial in making its
nward,"

In ivsjionso, ilio St'ci'ctuiy of State coimnmiicftted
tlu; dt'tcnniiiatlon of tlio President, ny follows:

"I have laid your telegrams before the President, who di-
rects nu' to say tliat he a'-eepts the declaration of the Tribunal
as its juduinent »ipon u (piestion of public law, which he had
felt that the interests of both (5overnn\ei\ts re(piired slio\dd
be .derided, and Ibr th(^ delermiiuit ion of which he had felt it
important to ju-esent the eluims I'efei'red to for the purjiose of
taking the opinion of the Tribunal.

"This is the attainntent of an end which this CJovernincnt
liad in view in the putting forth of those claims. AVe had no
desire for a jjccuniary award, but desired an exjircssion by tho
Tribunal .as to the liability of a neutral for claims of that char-
acter. The IVcsident, therefore, further accepts the opinion
and advice of the Counsel as set forth above, and authorizes
the ann(unicement to the Tribunal that le accepts their decla-
ration ns determinative of their judgment upon the important
(piestion of puhlic law ns to -which ho iuid felt it his duty to
K'ck the expression of their opinion; ami that, in accordance
with such judgment ami opinion, fron\ hencefoi'th ho regards
the claims set I'orth in tho Case presented on tho part of tho
United States for loss in the transfer of the American commer-
cial marine to the British Hag, tho enhanced payment of insur-
ance, and tho prolongation of tho war, and tho addition of a

ALABAMA CLAIMS.

Iar2;c suin to tlio cost of tlio war mul tl>c Piipprcsslon of tlic
]{t'bclliot), as adjudicated and disposed of; aiid tliat, coiisc(|iu'nt-
]y, tliey ^vill not be fiirllier insisted upon before the Triljunal
by llie United StatcH, but arc licjiceforth excluded from its con-
sideration by the Tribunal in making its award."

Tills conclusion ■was announced to tlic Ti'll>unal liy
ihv. Af'cnt of the United SStatea on the 2.jtli ot' June
in tlic followino: words :

"Tiie declaration made l)y the Tribunal, individually and
collectively, respecting the claims presented by the I'nileil
►States for the award of the Tribunal for, lirst, the h)s>es in the
transfer of the American commercial marine to the British thi:^';
second, the enhanced [)ayment of insurance ; and, third, ih^' pro-
loni,'ation of the war, and the addition of u lari^c sum to tlie
cost of the war and the suppression of the Kebellion, is accepted
by the President of the United States as dtli'iininative of their
judj^ment upon the important question of public law involved."

On tlic iJTtli, tlie ]>rilish Ai^ent njinounccd the ac-
(luicscence ol' liis Ciovei'nnient in tliis arraiiLrcincnt,
witlidrew his motion of adjournment, and Tiled the
British Ar^Munent.

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, l)y the declai'ation of the judgment or opinion
of the Arbitrators, in such form as to constitute, in
elVect, A rule of law, morally binding on Great Britain
and the United States.

The President of the Tribunal, Count Sclo])is, then
proceeded to pronounce an ap}n'0])riato and well-
written discourse, expressing satisfaction at tlic re-

74 Tin: tukaty of Washington.

nioval of all oljstaclos to tlio free action of the Tribu-
nal, ami coniineiitiug on the political relations of the
Treaty of AVashiiigton, preparatory to the connidera-
lion of the other questions submitted to the Arbitra-
tors.

SKAT OF TIIF AIUIITIIATION.

And here, Ijefore proceeding, to CNjdain and to dis-
cuss' the subsefpicnt acts of the Tribunal, it seems
convenient to pause, in order to speak of the scene
of action and of the Ti'iljunal, to Avhich the eyes of
all nations were attracted, and especially those of the
pcoj)le of England and of America.

It was most fit and proper to select Switzerland
as the country, and (Jeneva as the city, in which to
hold the sessions of the Trilninal.

In fact, Switzerland, at the same time that it is tho
land of ]iosj)itality, inviting tho fre([uentation of all
the world by its picturesque scenery, the beauty /unl
sublimity of its lakes and mountains, is also the land
of neutrality jntr c<rcellcncc. Xo other country pos-
sesses in the same degree these qualities conjoined.
In no other coiuitry was it ])ossible to avoid all in-
vidious local suspicion, and to be e\enq)t fj'om any
]K)ssil»le political iniluence foreign to the objects of
the Arbitration.

Tlie selection was peculiarly agreeable to tho
United States, by ivasou of th(! striking similarity
between our institutions and those of Switzerland.
lioth Governments cultivate a policy of international
neutrality: the one, by reason of its isolation and re-

ALABAMA CLAIMS. 75

niotcncss from the Old World, niul the other l)ecau.sc
of its geographical position in the midst of the groat
military Powers of Europe, l^oth Governments arc
federal; and Switzerland, not content with thoso
modifications of her system of government adopted
in the year 1848, which did so much to assimilate
her ])olitical oigaiiization to that of the United
States, now manifests the i)urposo to amend that
Constitution so as to make it still more lil<e to ours.
In both countries the force of public life pervades
tioeiety like the blood in the human system, so tliat
every citizen is an active member of the llepublle.
Hence it is impossible to an intelligent American to
avoid entertaining warm sympathy for the Swiss
Confederation.

Geneva is u cosmo])olitan city, — situated in the
very heart of Kui'ope, — distinguished for the intelli-
gence of its inhabitants and their love of liberty. It
is c/Vy, in respect of the connnodities of life: it is
coKiitrij, in so far as regards the locality and tlie sur-
rounding natural objects, Lake Leman, tlie Jura, and
the Alps.

The Federal Government, as well as that of the
Canton of Geneva, api)reciated the honor of l)eing the
seat of this great international Ti'ibunal, and did not
fail to welcome most coi'dially tlie two Governnu'nts,
their Agents and their Counsel, by cons])ic'uoiis mani-
festations of]»olitical as well as of personal considera-
tion. The Cantonal Government at Geneva hastened
to provide suitable accoiinnodations for theTribunal in
the Hotel do Ville of that city; it allbrded to the mem-

7G Tin: TRKATY OF WASHINGTON.

bcrs of tlic Tribunal and to tl»c rcprosontatlvos of tlic
two Goycrnnicnts ucooss to nunuTous odiclal exhibi-
tions and cntiM'taininonts; and, at a suitable time, it
made for us a special festival at (leneva, as the Fed-
eral (iovei'nmcnt did at Interlaken and at Berne.

Switzerland, and Geneva esj)(H'ially, looking at tlio
several acts of arbiti'ation provided l)y the Treaty of
Washington as constituting grert stei)s in tlie jtrog-
ress of j)ublie i)eaee, welcomed us the more heartily
because of the recent organization there of a society,
w]io>e objects are defined by its title of "Comite In-
ternational dc Secours aux Militaires Blesses." This
society had acquii'ed universal respect by its acts of
disinterested i)hilanthrojiy in the late war between
Germany and France. Its symbol of the red cross
liad been the harbin<:ct;i' of relief to many a suilerinoj
victim of battle. It was organized under the Pres-
idency of that General Dufour Avho, in 1847, had led
to victory the forces of Switzerland against the Seces-
sion I Sonderbun<l] Cantons. And men could not fail
to note the coincidence, when they saw this great
Tril)\nial of Arbitration organized under the ausjMces
of the victorious conunander of our own Union forces
[General Grant], as the International Commission for
tlie Succor of the AVounded had been luuler the
auspices of the veteran General Dufour. It ^vas 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 ball
in the Hotel de Ville which had just before been oc-

ALABAMA CLAIMS. 77

cupiod by the Society for the Succor of tlic AVouiuled ;
n room of moderato dimensions, but adc<]uate to the
purpose, fitted up with elegance and good taste, not,
however, specially for the Commission or Trilninal,
but for ordinary uses of the City or Canton, indicated
by its title "Salle des Conferences."

The Hotel de Yille is a structure in the Florentine
style of architecture, situated on the sunuuit of the
old (ieneva, and which is occu])ied both by munic-
ipal ollicers of the City and by the executive and leg-
islative authorities of the Canton.

COUNT FREDERIC SCLOPIS.

Here, then, in the "Salle des Conferences" of the
Hotel de Villc, at Geneva, the Tri])unal assembled to
listen to the opening discourse of the Pj-esideut, 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 s])irit of
moderation and the sentiment of equity were begin-
ning to prevail over the tendency of the old routines
of arbitrary violence or culpable indlfterence. lie
signified regret that the pacific views of the Congress
of Paris had not been seconded by events in Europe,
lie congratulated the A\orld that the statesmen who
directed the destinies of Great Britain and the United
States, with rare firmness of conviction and devotion

7S TIIK TREATY OF WASHINGTON.

to the interests of luiniaiilty, resisting all temptations
of vulgar ambition, had magnanimously and coura-
geously traversed in peace the dilHculties which had
divided them both before and since the conclusion of
the Treaty. lie quoted api>rovingly the oi)inion ex-
]^ressed 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 inqiartiality, thus to dis-
charge i(s 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, i\Iinister 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 tlie friend of Count Cavour, it was
liis fortune to co-operate in the task of the unification
of Italy under the leadershiii of the House of Savoy.

This great military House, with its enterprising,
ambitious, and politic instincts, second in fortune only
to the llabsburgs and the Zollerns, rose in the elev-
enth century, on the ruins of the Burgundians, to tlio
possession of the passes of the Valaisian, Cottian, and

ALABAMA CLAIMS. 70

Gralaii Alps, and of tlie Gallic tciTitory on botli
shores of Lake Leinan, 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.

It 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, noljles,
and people, — the fertile, but ravaged valleys of the
Rhone, the Arve, the Albarine, the Arc, and the tvro
Doras ; the castellated heisihts of L'Ecluse, ]\[ont-
mclian, and La Brunnetta ; the vine-clad hill-sides and
the lofty cols dominated by the giant peaks of ^Mont
Blanc and ]\[onte Rosa; the sepulchral monuments of
Ilaute-Combeand of Brou, and the rich plains along
the Italian foot of the Alps, — in order to oomjirehend
the growth to greatness of sovereigns such as Vittorio
Emanuele, supported by such generals as ]\[enabrea
and Cialdini, and statesmen and magistrates such as
Azeglio, lialljo, Sclopis, and especially Cavour.

Like his compatriot, the ]\lar(piis d'A/eglio, Count
Sclo])is is eminent as an authoi'. Of his published
M-ritings, some arc in French, such as " Marie Louise
Gabriellc de Savoie" and "Cardinal ]\[orone.'' But
liis most important woi'ks arc in Italian ; and above
all, the learned " Storia della Legislazione Italiana," ^*r-.
the last edition of which, in five volumes, is a most in-
teresting and instructive cxhil>ition of the successive
stages of the medi;eval and modern legislation of all
the different States of Italy.

Such was the eminent personage who presided over

so Tin: TUiCATv or Washington.

and coiuluoti'd tiie Jelil)Ci'.'itioii8 of tlic Tribunal, and
wlio rcprosonted and s])oke for it on ceremonial occa-
sions: a man of large stature and dignified presence;
of the high breeding of rank, but without pretensivc-
ncss; cordial and kindly in social intercourse; tlic
impersonation, as it were, of the intellect and the cul-
ture of Continental Europe.

MR. STyEMriLI.

Sitting by the right hand of Count Sclopis, as next
to him in precedence, not by reason of age, — for he
-was the youngest mcml)er of the Tribunal, — but as
representing the local Cro\x*rnment, Switzerland, was
Mr. James |or, in German, Jacob] Sta^mpfli: a genu-
ine represen^1tive of democratic institutions, — sprung
from the people, — the son of his own works, — clear-
headed, strong-minded, firm-hearted, — somewhat posi-
tive,— not prone to talk except when talk Avas of the
essence of things, and then briefly and to the point, —
in a word, a man of the very stuff out of Avhich to
make Presidents of Federal Republics.

]\Ir. StaMuplll is a German Swiss of the Canton of
Berne, who has risen from the humblest to the highest
condition m his country by mere force of intellect and
indomitable will. Born in 1820, admitted to the Bar
in 18 b^, he came forward at once as an advocate, and
as a journalist of radical opinions, and sj)eedily at-
taincil distinction. In ISK) we fmd him a conspicu-
ous member of the Council of State, directing tho
finances, and laboring to organize a central military
force. In 1847 he represented the Canton of Bcrno

ALABAMA CLAIMS. §1

in the Diet, and was .active in assertiucc the iv'-hts of
tlie Federation against the seceding States of the
Sonderbund. lie served in that war as Treasurer
and Payniaster-Gei eral of the Army. Displaced for
a while, lie resnnieci 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 185G, he was elected
President of the Confederation, and a^ain m 1850,
and the third time in 18G2: these repeated but in-
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 otherwi.se re-eligible without
limitation. Events of great importance to Switzer-
land occurred in the years of the administration of
'Mr. Stiumpfli; among other.«, 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 ])eril
is certain, it is better to advance to meet it, rather
than timidly to await its aj)proach." In ?i\\Q, j^ repa-
ration and decision are tlie distinctive traits of all the
oflicial acts of }»lv. St;em])fli.

'J'lien; i.s one jK-culiarity in the jiolitical character
of iSIr. Stiemplli, which belongs to him, indeed, as a
Swiss, namely, definiteness and allirmativeness in
the matter of international neutrality and moralit}-*
Switzerland no longer permits capitulations of for^

F

82 THE TREATY OF WASHINGTON'.

cigu enlistment; tliey are cx])ressly forbidden Ly tlio
Federal Constitution. Iler laws punish an a crime
all violation l»v individuals of the international rifrlits
of foreign Powers. Iler 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 etpiipments or expeditions l»y land, she ob-
serves rules of neutrality which are api)licable, in the-
ory and i)ractice, erpially to equipments or expedi-
tions lor naval warfare. Our own temporary act of
1S3S, which comprehends vehicles [on landj and ves-
sels [on water] in the same clause of criminality, af-
fords comjjlete answer to those Englishmen who have
superficially assumed that because 8\vitzerland is not
a maritime Powei', she [or a statesman of hers] could
not competently judge the case of the Alahcona or
the FJovida. Diligence to execute the law, — vifdlance
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 neu-
trality laws, had evident eflect on the mind of IMr.
StuMnplli to produce those conclusions of his against
Great Britain, which, as we shall see in the sequel,
were so grossly niisajiprehended and so angrily re-
sented by Sir Alexander Cockburn.

At the time when the Swiss Government invited
Islw StaMuptli 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. S3

(EidgcnossiscLe) Bank establislied at Berne. On
receiving tlie rcf^pcctivc " Counter-Cases" of the two
Governments, wliicli in effect closed the proofs on
both sides, lie 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-
tous wooded mountain-side of Beatenberg. Here,
high up in a rural hamlet, hidden among the trees,
with the beautiful lakes of Thun and Brieuz 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 a\[r. Sta^mpili secluded himself from tlio
social distractions 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 correspond-
ence, depositions, and legal pleadings be invested witli
the charmed reflection of the matchless scenery of
lakes, fields, hamlets, cities, mountains, and rivei^,
irlitterinc: in the sun, and restinc: in the horizon at
the snow-crowned heights of the Jungfrau.

And so it seems to have been. For good St. Boa-
tus blessed the mountain labors of iSlr. Sta^mpfii, and
ho 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

gj. Tin: TREATY OF WASHINGTON.

lie liliusulf avowal, liml not yet begun to examine tlie
cause, and seemed to suppose that every body else
ou<;bt to be as neglectTully it^Mioi'ant of it as himself:
whicli sentiment betrayed itself on various occasions
in the sittings of the Tribunal.

VISCOtNT OK ITA.IL'nX.

On the left of Couut Selopis sat the Arbitrator
named by tlie Emperor of Hrazil, the Viscount of
ItajubA.

The pcoi)le of tlie United States do not seen\ to be
generally aware how much of high cultivation, es-
pecijiUy [but not exclusively] in the departments of
diplomacy and jurisprudence, exists in tliosc countries
of America which were colonized by Spain and Tor-
tULjal. Nevertheless, on careful consideration of tiie
sterling merits of such historical writers as the INIexi-
can T.ucas Alaman, — such authors of international ju-
risprudence as the Chilean Bello, the Argentine Calvo,
or the Peruvian Tando, — such writers of belles-lettres,
of travels, or of statistics, as the Colombians Samper
and Perez, — such ])oets as the Brazilian ]\Iagalhaens,
— such codes of municipal law as tliose of the States
of Cundinamarca and of ]\Iexico or of the Argentine
Confederation, and of other Picpublics of Spanish
America, — we should be compelled to admit that lit-
eratin-e and science are not confmed to our part of
the New World.

And, amon^r all these new Powers of America, there
is not one more deserving of respect, — Empire and
not Republic though it be,— than Brazil, iu view of

ALABAMA CLAIMS. S5

tlio magnitiulo of its territory, tlic greatness of its re-
sources, its military j^tri'iigtli and sucecsses, its onliglit-
ened and I'efornrnig cliief ruler, tlie suljstautial liber,
ality of its politieal institutions, and the unbroken
•domestic ti'anquillity of its inde])endent life, so strik-
ingly in contrast with the revolutionary agitations of
most of the Spanish-Ainerican Kei)ublies.

^farcos Antonio (VAraujo belongs to that numer-
ous l)ody of jurists and statesmen, the natural growth
of parliamentary institutions based on ])opular elec-
tion, ^vll0 do honor at the present time to Hra/il. lie
filled in early life the chair of iVofessor of Juris])i'u-
dencc in the University of rernamhuco. His i'lv^t
diplomatic appointment "vvas that of Consul-(»eneral
of Brazil in the Ilansc Towns, with residence at Ham-
Ijurg. After that he held successively the ollice.^ of
Minister or Envoy at Hanover, at Copeidn\L,^'n, at
]5erlin, and finally at Paris. At the time of his ap-
pointment as Arbitrator he was Envoy Extraordi-
nary and i\Iinister Plenipotentiary of Pii'azil in France,
Ly the title of liaron d'ltajuba, 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
liis life in the discharge of diplomatic functions in
difterent countries of Europe. lie possesses all the
qualities of his career and station, namely, courteous
and attractive manners, intelligence disciplined by long
experience of men and aflairs, instinctive appreciation
of jirinciples and focts, and the ready expression of

go THE TREATY OF WASHINGTON.

tliouglit in apt language, but without the tendency to
run into tlie path, of debate or exposition, whicli ap-
peared in tlie acts of some of liis colleagues of the
Tribunal of Arbitration.

In comparing Mr. Sta3mpfli, with his deep-brown
complexion, his piercing dark eyes, his jet black hair,
his (piick but suppressed manner, and the Viscount
of Itajubii, Avith his fair com])lexion and his air of
gentleness and aflability, one, liaving 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.

snt ali:xanih:r cockburn.

On the extremes of the Eoard, ]\Ir. 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 Cock])urns of Langton. Ilis
father was British Minister in Colombia, and one of
his uncles was that Admiral Sir George Cockburn,
whose service iu American waters during our last
war with Great Britain has left some unpleasant
traces or memories in the United States. Ilis mother
seems to have been a French lady, being described
by Burke as " Yolande, dau. of Viscomtc de Vignier
of St. Domingo." lie was 1)orn in 1S02, called to
the bar in 1820, became distinguished as a barrister,
entered Parliament, and, after passing through tlic .
routine offices of Solicitor and Attorney General, waa

ALABAMA CLAIMS. ST

made Chief Justice of tlie Court of Common Pleas
ill 185G, and of the Queen's Bench in 1S50, uhich
place he still fills.

lie 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.

Ilis political career dates from hiS zealous defense
of Lord Palmerston in the affair ('f the notorious
David Pacifico. This person ■was an adventurer of
doubtful nationality and of bad character, in whose
behalf the navy of Great Pritain, under Lord Palmer-
ston's direction, seized the Piranis, captured Greek
merchant- vessels, and threatened Athens. The ground
of claim was alleged destruction of ])roperty by a mob.
Pacitico claimed, according to the official statement of
the case by the British Government, £4010 on ac-
count of furniture and other personal effects, which
he originally stated at only 5000 francs, and £20,018
lO^f. S<'/. on account of papers. It is very douljtful
Avhether 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 cither 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 £20,018, 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-

SS Till: TKEATY OF WASHINGTON.

aiii in a "svar Mitli France antl Russia. The Frcncli
Eniljassador retired from London to Paris for tLe
piir[)ose of personal coninumication on the su])ject
Avitli his Government. Count Xesselrode on behalf
of Russia remonstrated in a dispatch, -which tlie Lon-
don Tunen eharacteriz.ed as re])roacliful, irrefutable,
and just, and as profouu'liy ailecting the peace of Eu-
rope and the dignity of Great Britain. Tlie united
voice of Europe and America has condemned the con-
duct of Great Britain in this alfair. Tlie House of
Lords closed an historic debate by a vote of censure
of the Govcrnnunit. Li the Commons, tiie last words
of Sir Robert Peel were raised in protest against tliis
outrage on the rights of otlier nations ; tlie morn-
ing dawned on a ])rotracted session of the .'viouse
before lie recorded his vote of condemnation ; in tlic
afternoon of the same day lie met with the accident
which closed his honorable lift*. ]Mr. Gladstone in the
same debate said that the claim Avas "on the very face
of it an outrageous fraud and falsehood;" that "it
was mere falsehood and imposture," and that " a great-
er ini(piity had rarely been transacted under the face
of the sun."

Sir Alexander Cockburn w-as then without jiarlia-
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. lie was soon rewarded for his services by
appointment to the ofiice of Solicitor-General, from
which he was promoted step by step, with unexam-
pled celerity, to his present position.

ALABAMA CLAIMS. SO

Since lie became the liead of the Quceii\s Beiicli lie
has occasionally appeared in the field of letters on
questions connected with municipal or public law, but
jiot 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, ]\[r. Beach Lawrence, on
droit cCauhaine, tend to show] the matter contained
in the report of a commission appointed by the Gov-
ernment to inquire into and report upon the laws of
naturalization and allei:ci''^iice in En«i'iand.

Again, when it was proposed to arraign Nelson and
Brand as criminals in En^rland for acts committed in
Jamaica under proclamation of mai'tial law, Sir Alex-
ander Cockburn delivered a voluminous charge to the
grand jury, which he afterward puljlished with addi-
tions and notes, notwithstanding the partiality and the
ui'gency of which, the grand jury refused to find a bill ;
and it nuist 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 ^Ir.
AVhiting, in America, on the same suliject.

This charge, and some proceedings by which it
was followed, ])rovoked much criticism. ^Ir. Ga-
thorno Hardy, for instance, called attention to the
fact that the Chief Justice "vacillated," that he
"went fi'om one side to another," so as to render it
doubtful what his opinions really were; and Mr.

90 Tin-: TUEATY OF 'WASHINGTON.

Ilanly, as avoU as ]\[r. j\II11, ^vllo spoke on tlie other
side of the general question, said that the charge was
"not law," and was "without legal authority." j\Ir.
Fiulason, a most coinj)etent authority, said that, " al-
tliou'di tlie eliarrre dealt so larjzely 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 [l)y
others], there was no positive declaration of law laid
down by the Chief Justice." The same writer also
l)oints out grave mistakes of history as well as errors
of law in tliis charge. Tluis, the Chief Justice as-
sumes, as a cardinal thought, that mat'tial law and
luilltanj law are one and the same thing: a mistake,
which implies extraordinary confusion of mind, for-
getfulness of his own ollicial opinions in the inci-
dents of the rebellion in Ceylon, and ignorance of
tlie most commonplace events of English history, for
instance, as detailed in Ilallam and ]\Iacaulay.

I allude to these criticisms for the reason that, as
will appear in the sequel, the same singular intellect-
\ial 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 chai'ge for another cause. It is difli-
cult for many reasons to measure the exact iKvmnal
value of ordinary legal opinions delivered, in the
course of adjudication, by any judge of the Queen's
Bench. All such dilUcultics cease when he goes out
of his way to deliver a demonstrative charge to a

ALABAMA CLAIMS. 91

grand jury on one of tlie seml-pollticat' questions of
the day, and especially Avlien sucli cLarge is carefully
revised for the Press, with additions and annotations
by liiuiself. Then we have the most satisfactory
means of estimatinix the mental character of that
judge. And such is the case here, to the effect of
lowering greatly our estimation of the 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 l^yre, growing out of what had
Leeu done in Jamaica under the same i)roclamation,
Mv. Justice Blackljiu-n 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 resi)onsibility, or absolutely
binding them, for of course they have not considered
it so thoroughly and judicially as I have been
obliged to do, — still they authonze me to say they
agree in my view of the law, and thought it right."
A week later, when the case liad been entirely dis-
posed of, the Chief Justice, while sitting on the
Bench, denied, with imseemly warmth of lajiguage
and manner, that lie had assented to the law as laid
down by j\[r. Justice. Blackburn ; but explained the
alleged difference of opinion in such obscure Ian-

92 Tin: theaty of Washington.

guagc as to render it scarcely intelligible. Mr. Jus-
tice Blackburn replied, reiterating in temperate Ian-
fruacre Lis statement that the Chief Justice liad ex-
pressly assented to the legal doctrine of the charge,
and his colleagues, Justices jNIellor, L\ish, and Han-
uen,gave no suj)port to the denial made by the Chief
Justice.

Tlie qualities of character exhibited in this inci-
dent Avere the occasion at the tinie of unfavortable
commentary on tljc part of the British Press and
j)ublic.

Sir Alexander Cockburn had seemed, on sujierll-
ciul view, u lit pel son to taUe j)urt in the im]»()rtanti
duties committed to the Tribunal of Arlntration. IIo
carried thither the prestige of judicial rank, as the
head of one of tlu; most venerable courts of Europe.
And he was thorouirh master of the lanrjuaire in
which the discussions of the Tribunal were con-
ducted.

But, unlbrtunately, it would seem that neither the
original constitution of his mind, nor the studies, pur-
suits, or liabits 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 denimciation of adversary opinions, which pro-
voked and justified the criticisms of Mr. Finlason,
^Ir. Gathorne Hardy, and others, and which prompt-
ed contiict with ]Mr. Justice Blackburn, reappeared
in more vivid colors at Geneva.

Of the oftensive singularities of his deoortiuent aa

ALABA^[A CLAIMS. 9;j

Arbltnator, we sluill have but too much necessity to
sjjeak iu describing the acts of the Tribunal.

iAIU. CIIAHLES FUANXIS ADAMS.

In the American Arbitrator, Mr. Charles Francis
Adams, the Tribunal had a memljer worthy of the
companionship of Count Frederic Sclopis.

In the United States, persons have been found so
foolish as to reproach Mr. Adams ))ecause of the his-
torical eminence of his father and of his grandfather,
and even because of the intelligence and cultivation
of Ids sons: as if it were a crime in a Kepublic for a
f/ither to liave a L^ood son, or a son a good father, or
to live in the ludy atmosphere of u succession of wi.ie
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 tlie obstacles to personal distinction
created l^y parental station or wealth. In this, which
is the only correct view of the subject, all men are
selfniade. The attributes of j\Ir. 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 durin^r
the whole dark period of our Civil AVar. lie pos-
sessed qualities, acquirements, and experience, general
and special, Avhich seemed to invite liis appointment
as American Arbitrator; and iu the discharge of the

94 TIIIO TKKATY OF WASHINGTON.

duties of the ollice he did liouor to tlie Tribunal and
to the United States.

The deportment of ^Ir. Adams as a member of the
Tiibunal 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. AVhile the conduct of the latter was too
fre(piently on the comparatively low plane of the nlil
prins attorney of a party before a court, the conduct
of the former was uniforndy on the higher one of a
member of the court aiid a judge. Hence, in the
same degree that the })ersonal inlluence of Mr, Adams,
byi'eason of his recognized impartiality and integrity,
was l)eneficial to the United States, on the other hand,
the inlluence 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 TUinUNAL.

Their Secretary, ^Iv. Alexandre Favrot, was a gen-
tlemanly person of literary attainnients 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
by a sojourn of several years in England.

AGENTS AND COUNSEL.

The Agents of the two Governments, Lord Tenter-
den and jMr. Bancroft Davis, were peculiarly qualified

ALA 15 AM A CLAIMS. 05

for the places they filled, Loth 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 M-ere advantageous
iu facilitatiuo; the movement of business before ilia
Arbitration.

iVIr. 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-
pli.>^hments, his previous diplomatic experience, his
knowledge of men and things in J'hu'opc, uid his de-
voted and untiring attention to the ])ubllc interests,
were singularly useful to the United States.

Of the persons or rpialities of the Counsel of the
United States, Mr. ^lorrison II. AVaite, ISlv. AVilliam
M. Evarts, and the writer of this exposition, it would
be unbecoming, as it is cpiite superiluous, here to
speak.

In this relation, 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 i\Ir. B.
11. Curtis, considerations o'i party were not allo^ved to
exert controlling authority.

Secondly, the Counsel themselves emulated the
catholic spirit of the- President in subordinating all

90 Tin: TllI'.ATY OK WASHINGTON.

l)ersonal cousiiU'ratlons to tlic single object ot' win-
ning a groat canse, tlu' greatest ever (ioniniitted to the
cliarge of inenibers of the Bar, and pending in the
liiglu'st court ever organized, namely, the suit of
the United States against Great Britain Lefore the
Tril)unal of Arbitration. Although diverse in their
liahits 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-
uient or its Agent ;— in the preparatiou of the printed
Argument required by the Treaty, a document of five
Inmdred pages, to be signed by them jointly; — and in
the subsequent preparation of a number of joint or
separate Arguments in comjdiance with the require-
ments of the Arbitrators. ^Vo may appeal to those
Arguments as the tangii)le proof, at any rate, of our
concurrent and united dedication, during nine months
of continuous and solicitous thought or laboi-, to the
discharge of our duty to our Government and our
country, as Counsel under the Treaty of Washington.

Sir Ivoundell Palmer alone appeared before the
Tribunal as co nomine Counsel of Great Britain ; but
^U: ]\IountaLCue J5ernard, elevated to the ofiice of a
law-URMuber of the Queen's Council, sat by his side at
the Counsels' table, and also ^Ir. 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

ALA HAM A CLAIMS. 07

of Lord Solbornc, Is tli(^ jippi'o])rIatc consuinnuitlon of
a professional and parliamentary career of di^tin-
giiisliod aljility and of unstained honor. In conduct-
ing tbc deliberations of the House of Lords; in pre-
siding over the High Court of Chanci-ry; in partic-
ipating in the aflairs of the Cabinet ; in guiding the
conscience of the Queen tlirough the enibaiTassments
wliicli now beset the English Churcli, we may bo sure
that Lord Sclborne will join to the high autliority of
a skillful debater and a learned jurist the still higher
authority of a sincerely conscientious statesman, so as
to add incontestable force to j\Ir. Gladstone's ^Ministry.
And all that authority, we may confidently assume,
will be used in the promotion or 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, i\Ir. C, C.
Beaman, as solicitor, and ^Messrs. Broohs Adams, Jolin
Davis, F..W.nackett,AV.F.Pedrick, and Edward T.
Waite, as secretaries; and on the part of Great Brit-
ain, in tlie latter capacity or as translators, ]\Iessrs.
Sanderson, Markheim,Villicrs, Langley, and Hamilton.
If tlie 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 u]) these personal

G

9S THE TUKATY OF WASHINGTON.

bkt'tclies, and bring us to the consideration of tlie ul-
terior proceedings of the Tribunah

Occasionally, but not fre(|uently, at the present day,
Ave liear in the United. States ungracious suggestions
touching the personal deportment of Englishmen. Tso
sucli observations, it is certain, are justified liy any ex-
jK'rience of llie city of Washington. Tlie eminent
l)ersons, who, in the i)resent generation, have rc]'i-e-
sented the British Government liere, wliGther in per-
manent or sjK'cial missions, such as Sir liichard Pack-
cnham, Lord Xa])icr, Lord Ly()ns,Sir Frederick Bruce,
and Sir Edward Thornton, of the former class, and
Lord Ashburton, tlie Earl of Elgin, Earl De Clrey,
Sir Stafl'ord Northcote, Mr. ^lountague Bernard, Sir
Jolin A. ^lacdonald, and Lord Tenterden, of tlie latter
class, witli the younger persons of their respective
suites, and so many others who have visited this city,
were \mmistakably and with good cause popular with
the Americans. Luleed, it is rather in Continental
Europe, and especially in France, and by no means
in .the United States, that overbearingness or un-
courteous dejiortment toward others is ivgarded 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 cortact at Geneva, and sometimes in circum-
stances of contentious attitude of a nature to produce
coolness at least, all but one were unifonnly and un-
cxceptionably courteous in act and manner, — and that
one Chief Justice of the Queen's Bench.

Is ft holder of the office of Chief Justice cmanci-

ALABAMA CLAIMS. 00

pated from all social bonds? It is not so ultli Chief
Justices in America ; nor Avas it so in former days in
Great Britain, according to my recollection of tlie
great judges, the Eldous, the Tenterdens, and the
Stowells, who then presided over the administration
of the common law, and of the crpiity and admiralty
jurisprudence of Knghuid. lias the human race there
degenerated? I think not: no possible judicial ten-
ure of otlicG could transform or deform a Houndcll
Palmer into an Alexander Cockburn.

EFFORTS OF THE IJIUTISII GOVERNMENT TO OBTAIN
REARGUJIENT.

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 tlie stipulations of the
Treaty. It was, in elfect, 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. AVe followed the ordinary routine of judi-
cial controversy, and the course of conunon-sense and
of necessity, in giving a complete n'sunia of oiu* Case
in the final "Argument," as contemiilatcd and pre-
scribed by the Treaty.

The "Case" and "Countcr-Case" of each side had

100 'IHi: TUKATV 01' WASHINGTON.

Hiillu-irntly iiul'icateil tlio scope of inquiry or dcljiitc,
and (U'ilni'd its liniits. AVilliin tliosc limits all i)(;rti-
ncnt law, lii.slory, and reason lay at the connnand ot'
the Coiinst'l of the United States, as of those of (Jreat
Britain. If we, the Connsel of the United States, liad
neglected at the pro})er time to avail ourselves of the
irreat stores of knowlcdire and of reason accessible to
us, we could not expect to Bup])ly the deficiencies of
our ".Vrgunicnt" by filing a new one as the means of
response to, antl commentary on, the Jiritish "Argu-
ment." Sueli ])rocedure was not authorized, — it was
]»lainly forbidden, — by the Treaty.

It avails nothing to say that the course prescribed
by the Treaty is niifisiud: such was the will of the
two Governments. Doubtless they had good reasons,
and among them, perliaps, was the very i)urposc of
not having final *'Ai'g\unents," — that is, the M/r^^ argu-
ment in cllcct on both sides, — consist of ft mere debate
of reply and rejoinder betwixt Counsel.

(Ireat Britain had no cause or excuse for misappre- .
hension in this respect, although both (lovernment
and Counsel had, it is true, ^allcn 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 ov Summary^ If
at'(jumc)it and sununar]/ are synonymous terms, then
it is tautology and bad taste to emidoy them both to
designate the same document. If they mean difierent
things, then it is misleading to employ the term sum-
mary at all ; for suminarj/ is not the language nor the
sense of the Treaty. The Treaty requires each Agent

ALABAMA CLAJMS. 101

to (lt'livoi'"a ^vl•ittcll or printed argument .showing
tlic points and referring to tlic evidence ii[)on wliieli
liis (Jovernnient relies." Do tliese words ini}>ly a
•weak or imperfect argument? Do tlicy deli-ne ilie
luuuljer of pages to he occupied? Do tliey re([uire
eitlicr of tlie parties to leave out liis strong points i
Of course not. And if the Treaty said "sununary,"
• — wliicli it does not, — who shall say what is a fit sn/,/.
mari/ of some twenty volumes of evidence and of Icgak-
discussions, such as the two "Cases" and "Countrr-
Cases" comprehend ? The United States had the
I'ight to judge for themselves what exhibition of
"points" and what "evidence" to suljmit to the Ar-
bitrators.

The British Government must have been dissiff/.s-
fud with its own argument. That is clear, and is the
only suflicient explanation of the earnest and per.>i>t-
cut cllbrts of Sir lloundell 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 subserpient occurrences tended to prove, that as
the British Govermnent had nnderestimated the force
of our cause nntil the " Case " came into their hands,
so they did not appreciate the amplitude of oui* law
and our evidence nntil they read our "Argument."

And strange, almost incredible, though it bo, the

102 Tin: TREATY OF WASHINGTON'.

British Ciovcrnnicnt avouUI seem to Lave supposed
that the United States were to discuss and coniute
the Britisli " Counter-Case" in tlie American " Counter-
Case ;" that is, to make reply to an elaborate argu-
ment on the law and the facts [tor sucli is the British
"Counter-Case"] without seeing it or possessing any
knowledge of its contents. j\Ianifestly, 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 tSir Ruundell Palmer, in expressing desire to an-
sii'o' our "Argument," reasoned expressly on the im-
plication that it ought to have been "^/ mtre conq^Je-
■nictit ofj^i'ct'ioKS tJoemncntsy No such idea certainly
is conveyed by the Treaty; and the implication is
contrary to reason and the very nature of things.

Sir lloundell Palmer entered on the question the
moment it became reasonably certain that the Arbi-
tration would proceed. On the 20th of June he pro-
])Osed 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 pirpare a rei)ly. 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 ncarhj six iccel'S at his own home in London,
with books, assistants, translators, and printing-offices

ALABAMA CLAIMS. 103

at Ills command, — in a word, the whole force of the
Britisli Government at his Lack, in which to write
and print his Argument ; while it would have atlordcd
to tlic American Counsel less than, four weeks for the
same task, in which to prepare and pnut 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 rc-
arcrument of tlie cause. AVe found uotiruK' in the
British Argument which we had not anticipated and
disposed of to our own satisfaction. Not that we
feared reai'gument: on the contrary, we felt such com-
plete confidence in our rights as to l)e 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 possilde, be
made within three months from the close of the ar-
guments on both sides;" and the prescribed day "for
the close of the artcnments 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
argiuuents" had been postponed to the 31st of Au-
gust, as proposed by Sir Kouudell Palmer. In that

l().[. Tin: tiu:aty ok Washington.

event tlic Arl/itrutors coulJ not in reason or tleccncy
lia\'e commenced ilicir deliberations until the 1st of
September; tlicy might well have taken, as they did
in fact take, three months to complete their delibera-
tions; and thus the Arbitrators and the Auieriafii
Counsel I but not the English] would liavc been de-
tained at (Jeneva until the 1st of December, and there-
fore would not luive been able to reach their homes
until January.

l>ut the reargument proposed by Sii* Iloundell
Palmer was conti'ary to the Treaty, which in express
terms closes the rights of the two Governments as to
hearing, and admits further discussion on their i)art
only at the rcfpiisition of the Arbitrators, "if they
desire further elucidation in regard to any point."
[Art. v.] AVhich manifestly intends, not reargument
of the cause, but solution of any doubt, which, after the
comj^letion of the arguments, may occur to the Tri-
bunal. No consent of Counsel could annul the stij)-
ulations of the Treaty.

Of course, for reasons of right as well as expedien-
cy, we declined to accede to the proposition of Sir
Koundell Palmei*.

Ncvertlieless, at the meeting of the 27th, immedi-
ately after the conclusion of Count Sclopis's discourse,
Lord Tenterden i>resented a motion on the pai't of
Sir Koundell Palmer for leave to file a written argu-
ment in answer to the Avgument of the United States
delivered on the 15th, and requesting adjournment
for that purpose until August. Sir Koundell Palmer
read a brief of the points he desired to argue, which

ALAHA^rA CLAIMS. 105

covered in eflect all tlic points of tlic American " Case"
and "Argument," — that is to say, it im])li('d a com-
plete reargumcnt of the Avhole cause. It amounted
to assuming or admitting that no sufticient or proper
defense had yet been nnide by the British Govern-
ment.

We, In behalf of the United States, proceeded to
prepare a re[)ly to this motion. AVe tuok it uj)
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 wc cited the Treaty to show that tlie
discussion proposed was contrary to the explicit con-
tract of the two Governments. '

]\[eanwhiln tlie Triljunal jirocecded to decide, on
suggestion of Mr. Adams, that the proposed argument
was inadmissible, and that Counsel had no right to
address the Tribunal unless rerjuired by it so to do
for the elucidation of any point under the 5th article
of the Treaty.

At the next meeting of the Tribunal, on the 2Sth,
Sir Alexander Cockbui'ii presented a list of eight
points covering in etlect the points of the rejected
motion of Sir lloundell Palmer, and moved that the
Tribunal require of the Counsel of the two Govern-
ments written or printed arguments on the said points;

lOG THE TREATY OF ■WASHINGTON.

but the Tribunal decided not at present to require
such arguments.

AVhellicr the motion of Sir Alexander Cockburn
was ]U'onipted by Sir lloundell Palniei*, in order to
allbrd to the latter tlic desired opportunity to criti-
cise llic American "Argument,'' — or whether it was
a spontaneous one arising from the former s not liav-
ing studied the case, and his consequent ignorance of
the fact that most of the questions proposed had al-
ready been amply and sufllciently discussed by both
(fovernments, — does not distinctly a])pear. Proba-
bly both motives co-operated to induce the motion.
Subsequent incidents tlirow some light on this point,
^leanwliile it was i)lain 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.

KULKS CONCr.UNING THE CONFEUENTES OF THE TRIRUNAL.

The Tril)unal next decided that the Agents should
attend all the discussions and deliberations of the
Cor.ferences, accompanied by tlie Counsel, excejit in
case where the Trilninal should think it advisaljle to
conduct their discussions and deliberations with closed
doors. The practical efiect of this resolution, Avhen
connected with a resolution adopted at a subsecpient
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
luiderstood, of course, that none others should be pres-
ent save the representatives of the two Governments.

ALABAMA CLAIMS. 107

The Tribiuifil then autliorlzcd piiLlicity to Lc given
to its declaration and to the decLirations of the two
Governments, rehitive to the national claims of the
United States: after which it adjourned to the loth

of July.

Heretofore, either Ly intimation to the Secretary,
and to the Agents and Counsel, or by formal resolu-
tion, the Tribunal had signitied 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 Xew York, jiersons 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 l)y 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 ^vas 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 lai'ge part of the proceedings were in the na-
ture not so much of action as of judicial consultation,
which it midit well seem unfit to conmiunicate to the

iOS Tin: TKKATY OF WASHINGTON.

general piiLlie as tliey occiiri'ed, altliougli perfectly fit
to be thus coiiuiiunicated to the resj)ectivc Govern-

'lUv Tribunal reassembled on tlic 15111 of July.
Down to tliis time all the pi'oeccdingM of the Arbitra*
turs weri! in their nature i)ublie aets, or they have
been maile ])ubHe through the respective (Joveni-
ments. All sueh aets were recorded in the' protocols.

ircrcaflcr, we shall have, in addition to the acts of
the Tribunal I'econled in ]>rotocols, a series of \)Vo-
visional opinions, which were also printed and dis-
tributed I or should liavc been] according to express
order of the Tribunal. These opinions of the Arbi-
trators, as well as their olVicial acts, have already been
made jvublic by both Govcrnir.ents.

r>ut, incidentally to such acts and opinions, there
was nuich oral debate l'.*(~>m lime to time nt the suc-
cessive ( onferences of the '^JVibunal. At these de-
bates, the Agents and Counsel of both (lovermneuLS
^vere riMjulred to assist, by rt'solution of the 'J'ribunal.
Assisting, we necessarily heard what was said by tho
respective Arbitratoj-s. Wc were expected to hear,
it is i)resiuuabh', and also to luulerstand: otherwise,
wliy re(iuired to attend i

Arc these debates, which occurred in the presence
of so many persons, Agents, Counsel, and others, to be
regarded as confidential and unht to be disclosed now?
Forget them, Ave 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 J I think not. I conceive that any of lis, wlio

ALAllAMA CLAIMS. IQO

possess knowledge of tliose debates, liavc perfect right
to refer to tbeiii on all fit occasions.

I propose, liowevcr, on tlic present occasion, to ex-
ercise this riglit sparingly, and that only in two rela-
tions, namely, llrst, very briefly, where sncli reference
involves niei'o Ibrniality, and is almost inscjiarable
from acts recorded in tlic protocols; and, secondly,
with a little mure fullness at the close, and with some
retrospection, for the ])nr])osu of cx[>laining 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.

j\lr. Stivmpfli tlien suggested tliat in his opinion the
proper course was to take uj) tin; case of some vessel,
as e.\])ressly I'equii'cd by the Treaty, and consider
whether on tliat vessel (ireat Britain was res])on.>Ible
to thc^ United States, lie had directed liis own in-
([uiries in this way, and in this Avay Iwid arrived at
satisfactory conclusions. His plan liad been to select
ft vessel, — to aljstract the facts pi'oVed regarding her.
— and then to Apply to the facts the special rules of
the '? leaty.

Deijate on this proposition ensued between Sir
Alexander Cockburn, on the one liand, and the rest
of the Arbitrators on the other Iiand ; the fornrcr de-
siring to liave preliminary consideration of "princi-
])les," that is, of abstract (questions of law, and the hit-

110 THE TREATY OF WASHINGTON.

tcr insisting tliat tlic true and logical course was that
of the Treaty, namely, to take up a case, to examine
the f-icts, and to discuss and ap})ly the law to the
facts thus ascertained, as proposed by i\Ir. St{em])fii.

Finally it Avas concluded, on tlie proposition of
Count Scloj)is, to follow substantially the i)rogramme
of ^Mr. St;emptli, that is, to take up the inculpated ves-
sels, scriafiifi, each Arbitrator to express an opinion
in writing thereon, of such tenor as he should see fit,
but these opinions to ha jyroviaioual 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 IGth, consideration of the programme of
^\\\ 8tiem])Hi was resumed. It consisted of the fol-
lowing heads, Avhich deserve to be set forth here, in
order to show how thoi'oughly the subject had been
examined and digested l)y Mr. Staiuipfli.

" (A.) Indications gcm'ralcs :

1. (^noslion ;i decider.

2. Delimitution dcs fails.
.3. Princij)cs gcni'raux.

" (R) Dccisiun relative a cliacun dcs croisciuu
Observations preliminaires*.
1. I^c Sinntor.
{(t) Fails.
{It) Consideranls.
(o) Juc;cnienl."
[Follow llie names of llio oilier vessels, with similar sub-di-
vision of heads of inquiry.l
" (C.) Determination diiTribnnal d'adjiigcr unc sommc en bloc.
"(D.) Exanicn des elements j)our fixer unc sommc en bloc.
" (E.) Conclusion et adjudication definitive d'unc sommc en
bloe."

ALABAMA CLAIMS. HI

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 thouglit. There uill be occasion hereafter
to remark on the precision and concision of the opin-
ions of Mr. Staimpfli.

Sril ALEXAXDEIl COCKDURN'S CALL FOR REARGUMENT.

Sir Alexander Cockburn then renewed his ])ropo-
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 tlic tlitliculty of tlicsc questions, ami the
conflict of opinion Avliich has arisen among distinguislicd ju-
rists on the present contest, Tis well .as to their vast importance
iu the decision of the Tribunal on the matters in dispute, it is
the duty, as it must be presumed to be the -wish, of tlie Arbi-
trators, in the interests of justice, to obtain all the assistance
in their power to enable them to anivc 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 learnincr, 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 ditlicult a matter, and that its pro-
ceedings may liereafler appear to the Avorld to have been cliar-
acteri/.cd by the jiatience, the deliberation, and anxious desire
for information on all the points involved in its decision, with-
out which it is impossible that justice can be duly or satisfac-
torily done."

" To obtain all the assistance iu their power to en-

112 THE TllEATY OF WASHINGTON.

able t]i('in to anive at a just and correct couclusioti,"
— " to call lor the a>>8i-'<fa/ice of the emiueut counsel
who ai'e iu attenilaiicc on the Tribunal to assiat them
with their reasonint' and learniuir."

Analyzing the proj)osition, and omitting the intro-
ductory and concluding phrases of nioi'e or less iiTcl-
evanl and dilVuse appeal to extraneous considera-
tions, the essonce of the proposition is to call on
Counsel to assist the Tribunal, " so that arguments
scattered over a mass of documents may be presented
iu a concentrated and ap])reciable form."

Now, passing over the looseness and inaccuracy of
expression in this statement, it plainly is incorrect iu
substance. The considerations of law or fact neces-
sary for the instruction of the Tribunal are //at "scat-
tered over a mass of documents ;" they are " presented
in a concentrated . . . form" [we do not say appncia-
hie, because that is not a cpiality intelligible as ap-
plied to/o/7// 1 in the three arguments of each of the
Governments, — that is to say, "Cases," "Counter-
Cases," and " Ai-guments." The proposition betrays
singular confusion of mind on the part of a nisi j>ri'us
lawyer and judge. The subjects or elements of ar-
gument are, it is true, "scattered over a mass of doc-
uments;" l)ut it is fpilte absurd to ap])ly this phrase
to the Arguments themselves, in which the two Gov-
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 appreciated by
the Tril»\inal. In the Arguments proper, filed on the
15th of June, each Agent had, as the Treaty reciuires,

ALABAMA CLAIMS. 113

delivered " to eacL of tlic said Arljitrators and to tlie
Agent of tlie other j^arty a \vritteu or printed argu-
ment showing the ])oints and referring to the. evi-
dence on whicli his Government relies." These " Ar-
guments " were freshly in the possession of the Arbi-
trators. To call on Counsel^/br tJie reason cn^signed,
to reargue the matters therein argued, was just as
unreasonable as it would be for a judge presiding at
a hearing in 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 them,
as the Court w'ould perceive if it would please to
read those arguments: which, in the present case, it
M'ould 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 Triliunal decided to proceed
with the case of the Florida, according to the pro-
gramme of Mr. Sta)mpfli, that is, in efiect, 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 abuu-

li

114 T.'E THEATY OF WASIIINGTOX.

ilautly ill the appropriate place and time, that is, in
the successive Cases and Arguments of the two Gov-
eriimcnts.

CAi^r: OF TIIK "FLOHIDA" DFrinKI).

Tlic Arbitrators then met on the 17th, and pro-
ceeded to take up the case of the Florida.

On motion of Sir Alexander Cockburn, it was or-
dered by the Tribunal that tlie provisional opinions or
statements to be read by the Arbitrators should be
printetl, and distributed to the Arbitrators and to the
Agents and Counsel of the two Governments.

]\[r. St;\}mptli's opinion or statement had been read
already, and was in j>rint.

After some incidental discussion amonir the Arbi-
trators, Sir A. Cockburn began the reading of his
opinion un 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 Florida.

Then, after some debate, caused by irregularities of
speech or conduct on the part of Sir Alexandei-, jMr.
Adams proceeded to read the conunencement of his
opinion in the matter of the Florida.

On the 22(1, tlie case of the Florida was concluded.
Sir Alexander Cockburn and ^Mr. Adams completed
the reading of their opinions, and the Baron d'ltajuba
and Comit Sclopis both read theirs. The result was
to convict Great Britain of culpable want of due
diligence in the matter of the Florida by the con-
current provisional opinions of four of the Arbitra-

^MtauMMMM

AI^\.BAMA CLAIMS. 115

tors, witli a dissenting opinion from tbe British Ar-
bitrator.

The Florida, it will bo renienibereil, was a steam
gun-boat, built at Livcrpoul by ]\Iiller 6z Sons, on
contract with tlie Confederate agent Bullock, for the
warlilvc use of the Confederates. Miller 6z Sons
falsely pretended that she was being built for the
Italian Government by arrangement with Messrs.
Thomas tt Brothers of Liverpool and Palermo, one of
whom expressly and fraudulently confirmed the lalse
representation of Miller k; Sous. The British Gov-
ernment, although repeatedly warned of the iUegal
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 ct
Sons and of Thomas, and took no proper and suffi-
cient measures to invcstiijatc her character and to
prevent the violation of the laws of the kingdom.
She sailed from Liverpool without obstruction, cleared
by the name of Onto, unarmed, it is true, but ac-
companied by another vessel containing her arma-
ment, called the Jhduiiua.

The Ordo next makes her appearance at Nassau,
where she proceeded further to equip and arm as a
man-ofwar. The naval authorities at Nassau were
unanimous in denouncing her illegal character, but
the civil authorities, perverted by their yi/uijHdliiv-'^,
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

IIG Tin: TUKATY OF WASHINGTON.

of llic'ir duly on ilio i)m't of tlio Court ami of tlii'
utloi'iicy i'"i)ivs('iitIiiL,' (lio Oovt'i'inuciit. No njipcal
Wii^ taken liy Ihu (lovi'i'uiuciil.

'J'lui Ordo tlicii tlii'c'W oil' all iJi't'tcnsions of liino'
orntv; sIk' ojH'iily c'(>iiii^)U'teil licr i'(]ui])iiKjiit, anna*
UR'ut, and crow, i)artly aL one j)lacc and partly at an-
otluT, under tlio eye of the colonial authorities; and
l^roceeded to cruise and to make prizes as an avowed
man-of-war by tlie name i}^ FloriJa. i\reanwliile,wlth
the illes;ality of lier operarKjus in England, and also
in the J>aliania If<lands, now notorious and admitted,
hho continued to come and go in JJritiwh ])orts, and to
obtain supi)lies there as her base of operaiions, witliout
intert'-'iH'nce on the part of the British Government.

On these facts, the three neutral Arbitrators and
^Ir. Adams convicted tlu' Jjritish Ciovernment of want
of due diliix<^'ncc, and of disrcLjard otlierwise of the
Kules of the Treaty, notwlllistanding tlwit the Flovhla
had entered and remained some time in tho Confed*
crate ])ort of Mobile.

Their several o]»lnions were precise, definite, clear,
and with ])ositive conclusion, as to all the material
jjoints of the case, in favor of the United States.

Sir Alexander Cockbunfs adverse opinion Avas a
verbose special plea, — wliicli, wliile admitting all the
material facts charged, and conceding the jmlpable
fraud ])raeticed by jMiller tt Sons and Thomas, — the
original guilt of the vessel, — the absurdity of the ac-
tion of the Admiralty Court of Nassau, — the illegal
ecpdpments at Nassau and elsewliere in British ports,
— and the continued use of British ports as a base of

ALABAMA CLAIMS. • n;

o])L'i'utlunM, — could iiol (lisL'ovci* in tlioso iiicidi'iils any
m'gllgeiioc or any violation of neutrality on tliu pait
of (ho Ih'iti.sh (ittvcrniiKMit. Sit' Aloxaiuk'i' cIkimi iidt
to I'L'nienilK'i' that tlio allair of tlio Onto or Florlidt
way, Ironi the licginniiig to the cmuI, according to tin-
confession of Lord John llusscll liiniself, a ycandal
and a reproach to the lawa of Great Britain, and still
more, wo may add, a scandal and a reproach to cer-
tain of the British ^linisters, of whose honor fSlr Alex-
ander assumes to he the s])ecial champion.

Wlien Count Sclopis had concluded the reading of
his opinion, Sir Alexander Cockbui'n renewed his mo-
tion for the heariiif' of Counsel; but was airain over-
]'uled by the Tribunal, "vvhich assigned tor its next
Conference the consideration of the case of the Ala-
d(Un((.

SIMU'IAL AUCiUMKNT.S OUDKIiKl) ON (TJlTAIN I'OINTS.

Th(? Tribunal met again on the 2oth ; and the Bar-
on dTtajubii then made a i)reeise and formal propo-
sition, calling on the Counsel of (treat Jh'itain for a
written or })rintetl 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 cfTect ofconiniissions possessed by Confederate ves-
sels of war MJiieli had entered into Hritish ]»ort.s.

•'0. The HUjiplieH of coal furniHhetl to Confederate vessels in
IJritish ports."

And with liberty to the Counsel of the United States

to reply cither orally or in writing as the case may be.

This proposition was adopted by the Tribunal.

lis TIIH TUKATV OF WASHINGTON.

Ill SO far as ro^^'\l•(l.s tlie first ])(/int, tlie call for Ar-
guincHt- was obviously indiuHMl hy a dcslro to put an
end to the imscondy iiiii)()rtiuuti(,'.s of Sir Aloxandor
Cockburn ; for the Arbitrators liad in clfcct again
a?id again declared that in their judgment there was
^(0 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 (piestion
of due diligence had been already discussed to satiety
in the several Cases and Arguments filed by the re-
spective Governments. Wc shall j)crceive in the se-
quel how well-founded Averc the objections of the Ti'i-
bunal in this respect ; and how devoid of any useful
object or ])urposo Jiad been the ill-digested calls of
Sir Alexander Cockbui'n.

To the other (piestions proj"»ounded by the Baron
d'ltajubji, no objection coidd be mad(! : they were fit
subjects of the "elucidation" contemplated by the
Treaty.

CASK OF TUH "ALAHAMA" DFXIDKD.

The Arbitrators then proceeded to read alphabet-
ically their opinions in the case o^ the AIi(ha ma, — that
is to say, ]\[r. Adams, Sir Alexander Cockburn, Count
Sclopis, and jSIr. StaMuptU read argumentative state-
ments at length, and the Baron d'ltajubd 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 liis

ALABAMA ,CLAIMy. HO

colleagues, — tliat the Britisli Government liatl Lccn
guilty of cul])ul)lc want of the due diligence rc(i\iired,
either by the law of nations, the Kules of the Treaty,
or Act of Parliament.

In fact, this vessel liad been Ijuilt and fitted out in
Great Britain in violation of her laws, Avith intent to
carry on war against the United States ; evidence of
this fact had been submitted, suflicicnt, in the opinion
of the Law Oflicers of the Crown, to justify her de-
tention ; notwithstanding wliich, 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 necessaiy orders, she was suf-
fered to go unmolested out of the immediate jurisdic-
tion of the British Government. Iler 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 ])orts
of Great liritain.

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 Florida
without waiting to hear Sir Iloundell Palmer, surely
the British Government had reason to attach the
same censure to him in the case of the Alabama.

120 THE THEATY OF ;VASIIINGTON.

How could he presume to condemn Great Britain in
this IjchaU*, ignorantly, Llindly, in tlie dark, and ^vith•
out assistance of the " reasoning and learning" of the
eminent Counsel in attendance on tlie Tribunal ?

But even Sir Alexander Coclvljurn could no longer
resist tlic force of conviction, nor help admitting the
trutli of tlic allegation of tlie United States, tlieir
Agent and Counsel, imputing culpable negligence to
his Government. The United States had, not with-
out cause, brought the r)ritish 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, nnwortliy of them and of
their Government." And if the proved and admit-
ted truth of these accusations implies impeachment
oi i\\{i }-)crHonal honor of any Bi'itish ^Minister or ^\'\\\-
istrrs, that is not tlio fault of tlie Annn'ican Govern-
ment, its Airent or Counsel, but of the British Gov-
ornment, whose violation of neutrality is at length
conceiled even by Sir Alexander Cockburn.

In the ultimate judgment of all the Arbiti'ators,
the condemnation of the Alabama and the Florida
carried with it the condemnation of their respective
tenders, namely, the Tuscaloosa^ the Clarence, the Ta-
coni/,[iud t\\Q 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 Hctrihutlon, and the Shenandoah ;

ALABAMA CLALMS. 121

and with confident expectation only as to thoS It en-
andoah after she left iSIelboni'ne. Without pausing
here to consider particularly the Jutrilmtioii and the
Georgia, sullice it to say that eventually they were
rejected; hut the ShciKdidoaJi, after special explana-
tions in writing submitted by the Counsel of the two
GoN'crnnientH, was lield responsible by vote of three
of the Arbitrators, Count Sclopis, ]\Ir. Stiemplli, and
]\Ir. Adams. As the Shenandoah, after increasing
lier Jirmament at jMclbourne, had made many captures
at the very close of the war, when her cruise could
not be of any possible advantage to the Confederates,
lier exoneration by the Tribunal would have been
justly regarded by us as an act of great injustice to
the United States.

Tiiic si'EciAL AllOL^^[I■:^•Ts.

Jt remains next to speak of the successive Argu-
ments of Counsel before the Tril)unal, as well those
lieretofore indicated as othei'S called for in the se(iu»'l.

On the 'Jijth of July, as we have se(.'n, 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 Tcnterdeu 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 Ti'ibunal separately, were presented

122 THE TREATY OF WASHINGTON.

on tlie 5tli, Gtb, and Stli of August, consisting alto-
gether of 47 pages of the same folio impression.

It would not be convenient, and it does not come
witliin my })lan, to discuss the Arguments of Counsel
on eitlier side, except where some particular point of
sucli Argument calls for notice. Hence, as in the
case of the general Arguments of April and of June,
so as to the special Arguments called for by the Tri-
bunal, it Mill be sufficient to enumerate them, and to
give to them their pro])er place in the history of the
Arbitration.

The first Argument of Sir Roundell Palmer, how-
cvei', calls for some observations.

Of his 43 pages, 31, — say three rpiarters, — are de-
voted no}>iinaU>/ to the question of due diligence gen-
erally considered.

Now, in the previous regular Arguments, each Gov-
ernment had fully discussed this question, and hail,
as if by connnon consent, concluded in ex])ress terms
that it neither required nor admitted any further dis-
cussion. That conclusion was cori'cct. Accordingly,
most of these 31 pages are occupied with matters re-
motely, if at all, connected with the q\iestion, AVhat
constitutes due diligence? — such as [copying, word for
woril, sundry marginal notes] rules and principles
of international law ; express or implied engagements
of Great Britain ; eflect of prohibitory municipal laws;
the three llules of the Treaty; the maxims cited by
the United States from Sir Kobert riiillimore o^ the
question, Ci vitas ne (hliqucvit an civcs; for what pur-
pose Great Britain refers to her mynicipallaws ; doc«

ALABAMA CLAIMS. I03

trine ofTeteus as to iimnlcipal 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,
jjower by common law to use the civil, military, and
naval forces of the llealm 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 lloundell
Palmer under the head of due diligence generally
considered. \ery r/cneralli//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.

IS^ow Sir lloundell Palmer \H,oinniiim consensu, at
the head of the British Bar in learninir, intelliirence,
and integrity; and we may be sure that arguments
addressed by him to the Tribunal would be the best
that such a lawyer, so liigli 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.
lie himself had been earnestly seeking to be heard
by the Tribunal for more than a month ; he had com-

liit Tin: thi:aty of Washington.

ti'iuphrAil being heard lor many moiitlic. And tlio
result of all this meditation, and of all this earnest
de'^ii-c to serve his conn try, was a series of arccunients
mostly immaterial to the issue, as the final judgment
of the Tril)unal plainly shows, and coming in alter the
main question had been aetually settled in the cases
of the Alahama and \\\^i Florida. That is to say, —
and it is in this relation the ])oint is introduced, —
the claims of the United States rested ou a basis
which all the great forensic skill and ability of ISir
Koundell Palmer could not move, — which commend-
ed itself to the conlidence of the neutral Arbitrators,
— and which even extorted the reluctant adhesion of
the prejudiced J'ritish Arbitrator.

Subsequently, on requirement of the Arljitrators,
we discussed, in successive printed Arguments, the
special '(question of the legal cfiect of the entry of
i\\<i Florida into ^Mobile; the (juestion 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.

]\Ieanwhile, the Tribunal had voted definitively on
tlie (piestion of the liability or nondiability of Great
Britain for the acts of the ci'uisers 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 tiie Tribunal.
Tliey had thus arrived at the point of discus;«ing
matters, whicli only affected the form and the amount
of the judgment to be rendered against CJreat Britain.

And here, on the 2Gth of August, the Tribural
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 Se])tember, the Tribunal sat with closed doors,
tliat is, without the assistance of the Atrents and
Counsel.

Down to this time, the Agent, Counsel, Sollcitoi-,
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 re<:adar 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 JUDGMKNT OF TIIK TIUBUNAL.

On the 0th of Septen:iber 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
lield with open doors, and they theu adjourned to the
1-Ath.

\*!^

12G TIIK TREATY OF WASHINGTON.

ANNOUNCEMENT OF THE DECISION.

0:i Saturday, tlio 14tli of Septomljer, tbe Tribunal
asseniljlc'd at the liour of adjourniuont, — lialfpast
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 meml)ers of the Cantonal Govern-
ment, rejMvsentatives of the Press of Switzerland, tlie
United States, and Great liritain, and gentlemen and
ladies among the most estirrable of the private cit-
izens of Geneva. The day was beautiful ; the scene
imi)osing and impressive. But the British Arl)itrator,
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 olVicial action of the Conference conuuenced
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 Avas done: after which dujilicate
originals of the Act were signed by ^Ir. Adams, Count
Frederic Sclopis,i\Ir.Sta3mptli, and Viscount of Itajubu;
and a copy of the 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 Can-
ton of Geneva.

ALABAMA CLAIMS. 127

Sir ij^lexander Cockburn, as one of tlie Arbitrators,
tlecliniug to assent to tlie Decision, presented a state-
ment of bis "Iveasons," wLicli, witbout reading, tbe
Tribunal ordered to be received and recorded.

Thereupon, in an approjiriate address, Count Sclopis
declared the labors of the Arbitratoi's to be finished,
and the Tribunal dissolved.

The discourse of Count Sclopis was immediately
followed by salco-'^ of artillery, discharged from the
neighboring site of La Treille by order of the Can-
tonal Government, with display of tlie ilags 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 gi-andeur 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 indulc-inc: in baneful resentments or the vulcrar
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, liad been seated side l)y 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 'i'"'' TUKATY OK WASHINGTON.

sciously, from the respect due to tlieinselve\ to one
another, and to their respective Governments.

CONDUCT OF THE niUTISII AUIUTUATOH.

To the \inlversul expre.s?sion of mutual courlcsy and
reciprocal good-will there was l)ut one exception, and
that exception too conspicuous to pass without notice.

Tlie instant that Count Sclopis closed, and before
the soiuid of his last words had died on the ear, Sir
Ah'xandcr Cockbui'n Hiialclied \\\) hin lial, and, willi-
out i>articipulin^ 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 escai)ing
from the dock, rather tlian of a judge separating, and
that forever, from his colleagues of tlie Bench. It was
one of tiiosc acts of discourtesy which shock so much
when they occur that we feel relieved by the disaj)-
pearance of the peritetrator.

Mil AI,r,XANI)i:U COCKHl'llNS UKA.SONS TOU DISSKNT.

The Jhilish Arbitrator, wlio, so frecpiently in the
course of the Conferences, acted as a l)arty agent
rather than ajvulge, liad been occupying himself in
the prej)aration of a lov.g Argument on the side of
Great Britain, in which he throws oif the mask, and
profiMrf/Zi/ speaks as the representative of the I>rit'
isli Government. He withheld this Argument from
tljo knowledge of the Tribunal at tlic proper time
for its presentation as the "Reasons" of an Arbitrator.
At the lasit moment, — without its being read to tho

ALABAMA CLAIMH. lljO

Tribunal, or i)rliited for the iiitbnnatiou of Agents
and Counsel, as a resolution of the Tribunal, adopted
oil liis own motion, rc(juircd, — lie presents this Argu-
ment as his "Keasons . . . for dissenting from the
Deeision of the Ti'ibunal 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 hoth Gov-
ernments, Great Britain us nmch as the United
States.

\\\ ])</uit of fact, the document filed by Sir Alexan-
der was in lai'ge ]iart of such a character that, if it
liad been oU'enid ibr filing at any i)roper time, and
with o})portunity to persons concerned to become ac-
quainted with its contents, it must [as declared by
the Secretary of State of the United States in liis dis-
patch to the American Agent of October "12, 1872]
have been tho plain duty of the American Agent
to obji'ct to its rece])tion, and of the Tril)unal to I'e-
fuse it, as calculrtted and designed to weaken tlie ju>t
authoi'ity of the Arbid'ators, as insidting to the United
States in the tenor of much of its C(Uitents, and as in-
jurious to (treat liritain by its tendency to i-aise \\\)
obstacles to the acceptance of tjjo Award, and to pro-
duce aliemitioii between the two Governments.

The document consisted, in part, of the opinions of
Sir Alexander Cockbiu'n on the several vessels, co])ies
of which he ought to liavo delivei-ed in ])i'int to the
Agent and Counsel of the United States, in conform-
ity M'ith his own resolution, but which he failed to
do, thus depriving the American Government of ad-

I

130 THE TUKATY UV WASIilXGTOX.

vantages in llils ri'lation to wliicli it was entitled,
and AvlTu'li the Jiritisii (lOvernnuMit in fact enjoyed
by reason ot' the more loyal condnct of the other Ar-
bitrators.

He disicnsses thejse vessels "with grea^, jjrolixity, so
as to till ISO pages folio letter-press, while the corre-
spondent opinions of all the other Arbitrators united
occupy only OG pages, the ditlerence being occasioned
partly by the inunber of letters and other papers in-
tei'jected into his (.)i)inions, and partly by the dill'use-
ness and looseness of his style and habit of thouiiht,
as coni])ared with theirs.

The residue of Sir Alexander's document, consist-
ing of IIG Images, is devoted partly to the discussion
of the special questions, in all which ho is inordinate-
ly prolix, and partly to n genei'al outpouring of all
the bile whicli had been accumulating on his stom-
acli during the progress of the Arbitration.

sill ALi:XANI)i:U COCKHUUX'S "REASONS."

Let me dispose once for all of these "Keasons" 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-
gland, require that it should be examined and judged^
from an American stand-point.

Apart from the unjudicial violence and extrava-
gance of these " Keasons," 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. 1,3X

The Keasons arc on tlicir face, and as tlie London
Press could not fail to jicreeive and admit, "an elalj-
orate re])ly to tlic American Case" [tliat is to say, an
advocate's pleaj, " rather than a judicial verdict."'
\_Tdc(jvaph^ JSeptemljcr 25.]

It is, in truth, a mere nlxl priua argument, not up
to the level of an argument in hanc; inappropriate
to the cliaracter of a judge; and which rniglit 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 ll'Ie'jrapli [Septendjer 2G] ai'gumentatively
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 dili-
gence of the British Government in the case of the
J'loruhf, especially at Nassau.

The Kews [September 20] condemns and regrets
the declaration made by Sir Alexander in his "liea-
sons" twice, where he speaks of himself "sitting on
the Ti'ibunal 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 Xeu'.'i with
certain pertinent remarks of the Tdegrcq)h [Septem-
])er 25]. Speaking of ^Mr. Adams, it says : " He put
aside the temper of the advocate when he took his

132 Tin: TUEATV OF WASHINGTON.

seat oil llu; lU-ncl), ami lie performed tlic dillicult duty
witli tlie impartiality of a jurist and the delicate honor
of a </( iitJoixmr And this Mell-meritcd commenda-
tion of Mr. Adams is })refatory to the exhibition of
Sir Alexander Coekburn retaining still "the temper
of an advocate wiien lie took his scat on the lieneli"
and not ])erformin^' his dulies "with the; inipartijdity
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
" Ivcasons."

Tliere is no escape from the dilennna: it was hon-
orable to ]\Ir. Adams to act as a "judge" at (ieneva;
and, of course, to act as a mere "ailvocate" was dis-
honorable to Sir Alexander C'ockl)urn.

And thus we may compivhend at a glance, what
s(.'t'ms so remarkable U> the l[l((jra])h [Se])tend)er 'JO |,
that when we pass fi'om the jM'inted opinions of the
three neutral Arbitrators, whose "fairncns" nol)ody
disputes, and iVom those of the impartial "jurist"
and hoiiorabh' "gentleman," ^Ir. Chai'les 1^'i'ancis Ad-
ams, tt) the "llcasoiis" of Sir Ah'xander Cockburn,
*' We seem to go into another climate of opinion. . . .
AVe find dilferent i)remiscs, a diflerent bias, a dilTer-
ent logic, and W(^ might almost say diflerent facts."
So it is, indeed; and the explanation is obvious.
The "climate" of Count Scioj\is,"])aron d'ltajubu, ^Ir.
Stjvmptli, and I\rr. Adams, was that of fairness, judi-
cial dignity, impartiality, gentlemanly honor, such as
belonged to their ])lace as Arbitrators: the "climate"
of Sir Alexander Cockburn was that of a self-appoint-

ALABAMA CLAIMS. 13.3

ed "advocate," making no pretensions to "fairness" or
"impartiality," but, witli tlie "])remises," "l/ias," '• log-
ic," and "facts" of sucli an advocate, drawing np a
passionate, rhetorical plea, as the oflicious "I'cpresent-
jitivc of Great I^ritain."

As siich " i'('presi'iitallv(! of Circat I'ritaiii," il'lic In*

ni)t ])r()Uiptly disavowed l)y tlie Jh'ilish CJovorunu'nt,

it will bo found that liis " Reasons" lay down many

■positions -which may somcwliat embarrass present or

subsequent jMinisters.

The jVc'Cs notices numerous eontradlctoiy opinions
or conclusions which appear in tlie "lieas')ns." Jn
one place Sir Alexander eomi)lains that r/////llules are
laid down by the Treaty, and in another jilace ex-
presses the conviction that it is well to s(itlle such
(pU'stions by Treaty llules. " He complains . . . that
till! Arbitrators have not been left free; to a])i)ly the
hitherto received ])rincij)les of international law, ami
that tliey have; that ruh's have been laid down,
and that they have not; that deilnltions have been
framed, and tiiat they have not been framed." Here
is most ex(piisite confusion of idi-as. It is the very
same extraordinary and characteristic method of
thinhinir and writing:; which i\lr. Finlason had ex-
hibited at length, and which ]Mr. Gathorne Hardy
pointed out in the case of the Queen against Nor-
ton: the "intlammab'^ry statements," — the "extra-ju-
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

104 'I'll' TUI:ATV of WASHINGTON.

tlie ''C'liarLTc*' and the "Itcnsons" can not Lc accldcDt-
al : It must liave its cause in idiosyncrasies of mental
constitution.

Tliis vacillation or contradictoriness of opinion,
Avhicli strikes the ^Teics so mudi, pervades tlic "Kea-
sons."

Thus Sir Alexander admits want of due diligence
in the matter of the Ahilxoiia, and yet stoutly denies
that the United States had any trood cause of com-
l)laint against (Jreat l)ritain. lie insists tliat j\Iinis-
tci's were to olViciate witliin the limits of municii)al
law, and yet admits that such is not the law of na-
tions, the lorce of which he also recognizes. lie de-
nies that the Ministers can lawfully exercise any pre-
rogative power in such matt<'rs, and yet justifies and
a}ii)roves the exercise of it [although too late] in the
casi" of the SJicnandoah.

The jS\'}rs also calls attention to Sir Alexander's
" disalTection to the conditions under which he dis-
charges his task, a task voluntarily accepted with
full knowledge of thosi' conditions." "lie criticises
advei'sely the Treaty of AVashington : . . . these criti-
cisms seem to lis to be cxtrd vires. A derived author-
ity ought surely to resjiect its source. . . . Other con-
siderations than those laid down for him have certain-
ly been present to the mind of Sir Alexander Cock-
burn," etc.

There is manifest justness in this criticism. AVhat
business had Sir Alexander to indulge in continual
crimination of tlie Treaty of Washington, while act-
ing as Arbitrator under it, and possessing no pow-

ALABAMA CLAIMS. 135

or or jurisdiction except such as tlie Treaty confers?
To do so Avas indecent in itself, and could Lave no ef-
fect other than to embarrass the British Government.
With his habitual inconsistency of thought, to be
sure, he advises submission to tlie judgment of the
Arbitrators, Avhile exhausting himself in efforts to
shake its moral strength and that of the Treaty. The
Tiiius [September 28] jdainly sees that the "Ilea-
sons" of Sir Alexander "will be duly turned to ac-
count by Opposition critics." And perhaps that was
one of the ol)jects Sir Alexander had in view, in thus
usurping the function to judge the Treaty under the
cover of acting as Arbitrator to judge the s])eciric
rpiestions submitted by the Treaty.

The Times admits that the "severity of the criti-
cism passed by the Chief Justice on the United States
and their Agents, and even on his coUear/ues, 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, rpialifiled as they are, we perceive
j-ecognition of the fact that, in his "Kcasons," Sir
Alexander does not speak as an international Arbi-
trator, or manifest the qualities which ought to char-
acterize a Chief Justice.

The JVews indicates other singular traits of " irrel-
evance" and confusion of mind in the " Keasons."

100 Tin: THHATY OF WASHINGTON.

Exaiuination of tlio substcaiicc of tlie " Ixeasons"
leads to still more unfavorable conclusions.

While the Chief Justice exhausts himself in fault-
fuulimr with the Counsel of the United States it is
observable that he seldom, if ever, grapples with their
ar*^umcnts, but shoots olf instead into e])ithets of mere
vituperation. Indeed, if it were worth while, it would
]){i easy to show that he did not really read that which
he so intemperately criticises. And when he under-
takes to deal with tiie text, it is only in the disingen-
uous manner of i)ickingout here and there a detached
paragra])h or phrase for conunent, regardless of the
context or the ireneial line of argument.

Nevertheless, when he lias occasion to diller 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 imj)utes to us in-
tention to 2)racfice on the " supposed credulity and
it^norance" of the Tribunal.

AVe were not amenable in anywise to the l^ritisli
Arbitrator; but, if we had been barristers in his own
Court of whom such things were said by him, it would
liave been an exam])le of judicial indecency to parallel
which it would bo necessary to go back to the days
of infamous judges like JetlVeys or Scroggs.

Let Sir Alexander Ix; judged by his own I'ule.
Ci'a?nnii/i(/,aii lie did at (Jeneva, in the preparation of
his "Iveasons,'' he examined suiKM-ficially and wrote
precipitately : in consequence of which he copied
from the Arguments for the British Government pal-
pable errors, which Avere exposed and corrected iu

ALABAMA CLAIMS. 107

tlie Arguments for tlic United States. Thus it is that
he falls into the mistake of asserting a fake construe-
tion of an Act of Congress, by having a mutilated
text before him, quoting a part of a sentence, Avhich
may or may not justify his construction, and sup-
pressing the context and the secpient words of the
name sentence, -which clearly contradict his construc-
tion. * Acting on his own theory of Llind prejudice,
we sliould be compelled to assume that on this occa-
sion he perpetrates a deed of deliberate bad faith,
■with intention to j)i -a dice on the "supposed credulity
and ignorance" of the people of Great Britain.

AVhy did the British Arlntrator put together such
a mass of angry, irrelevant, confused, and contradict-
ory dt'clamatiou against the American Govei-nment,
and denunciation of its Agent and Counsel ? To vin-
dicate the Iioiior of British statesmen, Sir Alexander
declare?, in a speech at a banquet in London [Novem-
ber 4th], against unjust charges coming from the
American Government. But that shoidd have been
done by speech or otherwise, as Sir AIc\ra)i(kr Coch
hum i)rofessedly, and in England, and not nnder the
false pretense of an Arbiti'ator 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 oiY all pretense of judicial cliarac-
tcr, 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

108 Tin: TKKAT* or ^vasiilngton.

"Koasous" i)roci'c(I from beginning to oiul on the liy-
})0tliesi8 tliat the British Agent and Counsel had neg-
lected their duty ; that neither the Case, Counter-Case,
nor Aigunient of the British Government, l)y Avliom-
soever pre])ared, nor the several sui)})lementary Argu-
ments fded by Sir Boundell Palmer in his own name,
contained a i)roj»er exhibition of the defenses of the
Britisli Government; and more especially that Agent
and Counsel alike had all been false to their country's
•Itoiior in not vindicating it against the charges of the
Americans. In view of this dereliction of duty. Sir
Alexander volunteers to supply, more sua, the place
of Counsel, and to respond to the American Agent
and Counsel.

Against what cliarges ? The existence of an un-
friendly state of mind toward th? American Govern-
ment in Parliament, or in some of tlie British Colo-
nies at the period in question ? Sir Alexander ad-
mits the fact in strontrer terms than we had charired
it. — Failure to exercise due diligence in arrestinix the
equipment of Confederate cruisers to depredate on
our conunerce? Sir Alexander admits and proves it,
under three heads, as to tlic Ald/xo/irr, and only es-
capes the same admission as to the I'lori'hi by tech-
nicalities as unsatisfactory to impartial minds in En-
gland as in America.— ^As the London Tcle(/raj)h says,
in another relation, Sir Alexander, whilst indignantly
protesting against our accusation of Bi'itish oliicers,
admits their failure to do their duty, which is the
foundation of the accusation. JUit for that marvel-
ous confusion of ideas which distlncruishes Sir Alex-

ALABAMA CLAIMS. 139

findei", even he must have seen that, in confessing and
prorinfj the guilt of liis Government, he estops him-
self from denying the justice of the accusation pre-
ferred hy the United States.

But the point of honor Avas considered wlien the
Treaty was signed. How strangely Sir Alexander
foi'gets the attitude in which this objection stands in
Lord IvusselTs correspondence with Mr. Adams. If
tliere was any question of honor in the controversy,
that it wao which forbade a treaty of arbitration, as
Lord llussell constantly maintained. But three suc-
cessive Foreign j\Iinistries, 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-
iniiton.

iMr. 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 oflicial doc-
ument."

Sti'angcly enough, the Saturday Ilevieiv, m hich pre-
tends to see " scurrility" in the American Case and
Argument, where it does not exist, is blind to it in
the " Itcasons," where it is a flagrant fact.

j\[eanwhile, 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 TU1:ATV of WASHINGTON.

by cxtra-jivllcial accusation nnd inculpation of tl.c
United States in the "Koasons" of Sir Alexander.

And it i.s anui.sing to read tlic imputations of " con-
fusion,'^ " vai^uo and declamatory," " ignorance of law
and history," which he applies to the Amei'Ican Coun-
sel, in view of what his own countrymen say of his
own methods of argumentation. Indet^d, it would
seem that the hard words of ^Ir. Finlason and others
concerninir him had made such ClVectual lodgment in.
his Lrain that, whenever ho writes, they rush forth
liap-hazard to Le applied by him without reason or
discrimination to any occasional oliject of argument
or controversy.

If, like ^Ii'. Charles Fi'aneis Adams, Sir Alexander
had simply j^rejjared brief and temjierate o])inions on
all the ([uestions, whether favorable or not to the
United States, both (Jovernments would have been
left in an amicable mood. As it is, in ])rofessedly
throwing oil" the character of a judge, — which alone
belonged to him of right, — of certain BjK'cific charges
of the United States against (treat ]»ritain, submitted
to him by the Treaty of Washington, — and in under-
takinLr to become the mei'o accuser of the United
States, — ho does but insult the American Govern-
ment, while subjecting his own (iovernment to much
present inconvenience and great future endjarrass-
ment.

There is one ])articular feature of the "llcnsons'*
too remarkable to be overlooked.

In reading these "IJeasons" carefully, one can not
fail to bo struck by the fre(pient manifestation of the

ALABAMA CLAIMS. 141

disposition of Sir Alexaiuler Cockburn to stop and
turn aside in order to criticise ^Ir. StaMnpili.

]\Ir. StJunipHi, in contbrniity -with tlie vote of tlio
Tril)unal, printed liis 2^roV(sional oj)inions, and deliv-
cre(i tlieni to the other Arbitrators from time to time,
anil to the respective Agents and Counsel.

Sir Alexander Cockburn disingenuously suppressed
Ids provisional opinions until tiie last moment, and
then fded a suujle co])y only of the mass of matter,
general and special, entitled "lleasons," which appears
in print for the first time in the London (razitfe.

Now, in the provisional opinions of Mr. Stienij*!!!,
it is quite possil)le there nniy have been some error
of statement. Sir Alexander takes pains to afilrm it.
But, if there be any such, it is quite Innnaterial, and
does not aflect any important conclusion either of fact
or of law.

Sir Alexander also committed errors of this class in
the provisional opinions v)h(rh lie rcxuL S(^me of
them were noted at the time, and arc still remember-
ed. Tliese errors may have becMi corrected in the
print which we now have. Indeed, the ntdnuscript
shows numerous corrections. Nevertheless, but ior
the suppression of hin ])rovisioMal oj)iMions, his col-
leagues might have interlarded tlieir provisional or
revised opinions with similar captious criticisms of
him. It is i>resumable that tliey did not think it be-
coming or fair to do this; Jind it was to the last de-
gree \mfair in Sir Alexander to do it, in a docunient
foisted into the record, as it M-as, at the instant of ad-
journment, and inimediatehj carried ojf without being

142 Tin: trf.atv of Washington.

actually filed with tlie Secretary or otherwise placed
in the archives of the Tribunal.

Now, iu the early pages of his " Jvcasons," he im-
putes to ^[r. Stiuniptli the liaving said "that there is
110 such thing as international law, and that conse-
quently we I the Arljiti'ators] nrc io proceed indi;.
])endently of any such law," and "according to some
intuitive perce])tion of right and wrong or speculative)
notions, etc."

The imputation is calumnious. No such statement
a]»])ears in any of the printed opinions of ^Ir.Stiemj)ili;
no such declaration was ever made by him orally at
any of the Conferences. The declaration of Sir Al-
exander iu this respect is Init a sample of the rash-
ness and inaccuracy of i'e])resentatioii ^vhich pervade
the " Kcasou'*."

What M .Sti\Mni)t]i says on the general subject of
"international la^^■," in so far as regards the matters
before the Tribunal, is as follows:

"Principo8 Eje-m'raux <le droit.

" Dans scs coiis'ulOranls jmidiqucs, Ic Tribunal doit sc guidcr
jiar Ics ))rinoipo3 Puivants: —

" 1. Kii pri'Miicr lieu, ]iar Ic-s trois l»i'i;lo8 posers dans rArticlc
VI. dii Traiti', U'cjucl j)oitc que, — ct cetera.

" D'apivs Ic Traiti' ces trois Ueixlcs pic-valcnt Piir k-s princii>os
que Ton iioiinait dcduirc du droit dcs gens liistorique et do la
science.

" 2. Lo droit dcs gens liistorique, on bicn la j)rali([uo du droit
dcs gens, ainsl quo la sciencu et les autorites pcicntifiqucs,
)^euvent etrc consideres conuno droit Bubsidiaire, en tant que
les principes a appliquer sent generalerncnt rcconnus ct no sont
point sujcts a controversc, ni en dcsaccord avcc les trois Regies

ALABAMA CLAIMS. . 143

cldcssus. .Si I'linc on Tanlrc do ccs coiulitions vient a inanqiicr,
c'cst an Tribunal d'y siippicer en intcrprOtant ct ajiplicpiant k-s
trois ]U'glcs do 8on inicux et en toutc conscience."

At tlio time Avlien Sir Alexander sent to press Lis
misrepre.seiit.'ition of the opinions of j\[r. St;eni})tli, lie
had in liis hanijs the anthcntic statement thereof
as printed at Geneva. There is no excuse, therefore,
for this malicious and dishonorahle endeavor of the
British Arbitrator to preju<lice the character of the
Swiss Arbitrator in Great Britain.

TSevertheless, iSlv. Stiempfli, according to Sir Alex-
ander, having cut adrift from all positive law, adopts
instead " speculative notions," or " some /iitiddre per-
ception of right and ^vrong;■' and such ideas Sir Al-
exander re})udiates: or, as the London Tele(jrapli has
it, "the Chief Justice, armed ^vith sarcasm as well as
loi^ic, runs full tilt asiainst that docti'ine:" to Avit, the
doctrine, still in the words of the Tth'jrapli, " that the
duties which nations owe to each other nuist be de-
termined by the light of intuitive principles of jus-
tice." The Telegraph goes on, with trutli and reason,
to say that, after all, ]\Ir. St;empfli is right, if he insists
that *'the rules of fair dealing, which we term inter-
national law, are not law /// tJie same sense as the i)os-
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 ex])eri-
encc 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-

l-i-t THE THEATY OF WASHINGTON.

out jiaHsiiiL; to consider ■wlictlier tlicse observations
nrc piTtV'ctly accurate or not as a tlcfinltlon of tlic law
of nations, we may assume tliat tliey are substantially
so, and sullicc at any rate to show clearly tbe iirican-
did spirit of Sir Alexander's criticism of the imputed
'languai^e of ]Mr. Sticmpili, — a criticism which calls to
mind a similar unjust and vicious reproach cast by
Junius on Lord Mansfield.

The actual statement of ISlv. StuMnpili, as we have
seen, M'as ime\cei)tionably accurate and ])recise, in so
far as rei^'arded the matters before the Tribunal.

^Ieanwhile,Mr. J>t;empHi may have said orally, what
lie says here in ])rint, that in many supposable cases
of deficient e.\])licitnesH either of the conventional
rules or of the historic law of nations, "cVst au Tri-
bunal d'v sujvplcer en interpretant ct appliquant les
trois rei^les de son mieux et en (oute C(')isckn(:e.^''

That is what the Viscount of Itajuba says in one
of his opinions, namely, that a certain doctrine, assert-
ed by the British (rovernment, *' froisse la conscience."
It is what Count Sclopis intends, when he says, " Les
nations out entre elles nn droit commun, ou, si on aime
mieux, un lien vommnu, foritic ^xw rcqnile et sane-
tionne ]\'ir le ivsjK'ct des interets recipro([ues;" and
that such is the s]">irit of the TVeaty of AVashington,
"([ui ne fait (]ue donner la preference aux regies de
rtMjuite generale sur les dispositioiis d\nie legislation
particidiere quelle qu'cUe puisse etre." That is "the
luiiversal innnutable justice," which in all systems of
law, intei'iiational or national, distinguishes right fi'om
wrong, and to which the United States aj[)pealed in

ALABAAIA CLAIMS. 145

addressing: tlie Tribunal of ArLitration. And it is
the negation of all these great principles of "justice,"
"efpiity,"or " conscience," Avliich pervades tlie"l\ea-
sons" of Sir Alexander Cockburn : in reflecting on
Avliicli, tlic mind irresistibly reverts to tliat same line
of reasoninii: Avliicli astonished the "world in Iiis par-
liamentary advocacy of David Pacitico.

And now, wlio is injured by Sir Alexander's acri-
monious arraitriiment 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,
"vvliether tried by the Treaty Kules, by the law of na-
tions, or by the Act of rarliament. Does it intkience
the action of the Tribunal 2 No : that was consum-
mated already. Does it injure tlieAmerican Govern-
ment, its Agent and Counsel ? No : so far as regards
us, it docs 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 Cliief Justice of England into ecstasies
of spiteful rage, in which he strikes out wildly agalnrt
friend and foe alike, Init chietly 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, ^vtt know, has no dis-
position to repudiate the Treaty, and it accepts tlie
Award in good faith, and desires that it should be ac-
cepted by the people of Great Britain. It can not be

K

MO Tlir. TUKATV OF WASHINGTON.

ni^rcrahlc to tlie Iii'itlsh (lovci'iuiiciit to liavc all the
old (It'l^atu roopuncil l)y tlic Chirt' Justice, — to liavo
tlio Treaty, its JviileM, the Arbitration, and tlic Award,
made by Jiini the i^ubjeet of profuse denunciation, — to
have an arsi-nal of weapons, goc.nl, bad, r)r indill'erent,
collected liy liini for the use of the Opposition in J'ar-
lianu-iit.

Nor can it be agreeable to sec tlie Arbitrator they
had aj)])ointed demean liimself so fantastically, and,
as the j'higli>h Pivss is constrained to admit, in a
manner so painfully in contrast with the dignity and
judicial impartiality of the American Arbitrator.

The Cliancellor of the Kxcherpicr [Mr. Lowe] gave
utterance to these sentiments of tri-ief and reirret in a
sj)eech at Glasgow on the 2Gth of September, as fol-
lows :

"I conceive our duty to 1)C to oljcy llio Award, and to pay
wliatcvcr is assessed ai:;ainst \is witlioul cavil or coinineiit of
any kind. [C'iicers.] 1 am Jiapjiy to say that Kucii is llic 0[nu-
ion of iriy learned friend, the Lord Chief Justice. 15nt I ninst
say, Vvilh tlie ;;reatest hubinissiun to my learned friend, tliat I
wish liin jiractice had accorded a lillle moic accnrately with
his theory. He lias advised n» to Kubmit, us I advise you to
Hnhmit, to the Award, and not only to i)ay the money, but to
IbrcLit) fiir once the national habit of ^rnnd)linf; — Ihui'^hter]—
ami to CDnsiiler that we are bound in honor to do what we are
t(»ld, and that, having onei' put the thin;^ out of our power in
tlic honorable and the hii^h-minded way in which the nation
has done, the only way in which wc should treat it is simply
to obey the AwarV and to abstain from any comment wliatever
as to what tlu^ Arbitrators have done. [Cheers.] But, if my
learned friend the Lord Chief Justice thought Bo, I can only
very much regret that he did not take the course of simply
signing the Award with the other Arbitrators, it being perfectly

ALAnA>rA CLAIMS. 147

well known that lie dinVrcil from llicin in ocrtiiin rospccis, wliii'h
would iippcar ])y tlic transactions ol'llio iVward. I iliink ii is a
jiity wlion the thiiM^ is docidiMl, wIilmi wo arc liouml to act iijum
it, and when avc arc not really jiislilicd, in any Icelin^^ oI'Iiouim-
or ot' ^ood faitii, in niakin.i; any reclamation or iiuarrel at all
with what lia.s been done, that he hlutnld have thou;4ht it his
dlily to stir up and to renew all the stroni^ arL,MitnentsQand con-
tests U])on which these ^Vrhitrators have decided. [C"heer>. j
I think if it was Ids opinion that we ou;4lit to aiMpiiescc (piii'tly
and without niurinur in the Award, he had Ijelter not have pub-
lished his argument, and, it' he thouu:ht it right to jjublisii his
argument, lie had better have retrenched his advice ifself as to
the nrbitration,"

]\[r. Lowe can not liclp seeing that the "Heasons"
are not an opinion, but an "argiunent," anil an "argu-
ment" adverse to the (onclusions of tlie writer.

Thus, it would appear, sucli is tlie eccentric menial
constitution of the Chief Justice, that while he is in-,
capable of going through any process of reasoning
without inconsistencies and self-contradictions at ev-
ery step, so he can not perform an act, or reconnnentl
its performance, without at tlie 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 Ijoth
Houses, especially of tliose in Oj)}H)sition, speak in
terms of laudation of the '* lleasons" 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
bad said of him at Glasgow, unconsciously fidls into

148 I'HK TKEATY OF WASHINGTON.

the error of cliaracterlzlng lilni as " the representative
of the Crown, sent fortli to discharge liis duty to liis
Soverei'-'-u and maintain the lionor of his country."
which alVords to Mr. Lowe opportunity of responding
triumphantly as follows:

"I li.ivc not spoken of the Lord Chief Justice in tlio Inn-
crunL;c in Avliieli the lionorablc .and lcarnc<l gentleman lias
ppoken of him, and •which filled nic 'with unbounded astonihh-
nicnt. Tlie Lord Ciiief Justice was sent to Geneva as an Ar-
l»itrator to act impartially, and not to allow liimself to be
biascii by the fact of his beincj an Englishman, but to give liis
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 I am arraigned by the honor.ablc and learned
gentleman as having treated him disrespectfully. ]jut how
does the honorable and learned gentleman himself speak of the
.Lord Chief Justice? lie says that learned Judge was a i)len-
ipotenti.afy, — tliat is to say, tliat he went to Geneva to do the
work of England, and not to decide between two parties im-
]iartially, but to be biased in his course, and to go all lengths
lor England. The conduct of the Lord Chief Justice negatives
such a statement, because in some respects the learned lord
went against ns. Then the lionorablc and learned gentleman
said that the Lord Chief Justice Avas sent to Geneva to defend
the honor of this country; but the fact is that Ac xcaa sent to ar-
bilratc^ and l>ir Jloiimldl Palmer and ot/icrs were sent to defend
t/te /lonor oft/ic country. Jl icordd be a libel on the Lord Chuf
Justice to insinuate that he irould iindertalKe the office of (join g
to Genera noniinalbj in the character of Arbitrator, but rcalbj
to act as an advocate and idcnipotodiary for this country.''''

It is difficult to judge how much of what Mr. Lowe
salel on this occasion Avas 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

ALABA^L^. CLALMS. 140

to Lis own cicclaratloii tliat, wlillo engaged in writ-
ing an extra-judicial pamplilct, under the false pre-
tense of its Leinix tlie act of an Arbitrator, he was
really speaking as the Kepresentative of Great Brit-
ain. That was the mistake of the Chief Justice. It
was competent fur him, after running away from the
Tribunal as lie did, to publish in England tlie con-
tents of tlic first part of the "Keasons" as a personal
act. It was dishonorable in him to smuggle it into
the arcliives of the Tribunal, and to piddish it in the
London Gazette as the ofliciai act of an Arbitrator.

In view of all these incidents, and of the extraordi-
nary contrast between tlie conduct of ^Mr. Adams and
Sir Alexander Cockburn, as admitted l)y Englishmen
themselves, it is easy to comprehend that, while the
fonner has been lionored with thi^ express ofliciai
commendation of loth 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 ' 's own
Government.

OPINIONS or THE OTHER ARBITHATORS..

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,]\Ir.St.Tmpfli,theYicomte
dTtajuba, and Mr. Adams, each of them states his con-
clusions founded on the documents and arguments be-

150 THE TREATY OF WASHINGTON.

fore tlie Tribunal. Ncitlicr of tliem sccins to Lave
isnagined lliat tlie cause of truth or of justice Avould
have been ])romoted by going outside of the docu-
ments and arguments submitted, in order to criticise
or cavil at tlie opinions of the British Arbitrator.

We begin with ^Nlr. Adams. His oi)inions 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
dii)lon;acy and of international jurisprudence, lie
does nut descend from the Bench into the arena of the
Bar. If he had seen fit to do this, he might have dis-
covered (piite as •much inducement to acrimony and
acerbity of discussion in the wanton accusations of
the entire political life of the United States, Avliich
tlie 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.
Cut he yielded to no such temptation. "lie j)ut
aside the temper of the advocate," as the Telegraph
truly says, to speak " with the impartiality of a jurist
and the delicate honor of a frentleman." Accordimrlv,
his opinions are without blemish either in temper or
in language. He finds want of due diligence in the
matter of the Ahdama: 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 oilicers of the British Govern-
ment in bcUi these cases: and so did the British Ar-
bitrator. He can not, as the British Arbitrator docs,

AJvABAMA CLAIMS. 15 1

find justification for tlie acts of ncfrli^ronce of Briti^li
Colonial authorities in tlie matter of the SJienandoali
or that of the Reirihid'wn. And, as might have been
anticipated, his conception of the duties of a State
suppose a higher standard of national morality than
that recognized ])y the British Arbitrator.

j\Ir. Stu'm]){li's opinions arc also of considerable
length, but differ from those of Mr. Adams, especially
in the form, Avhich is that customary among tin; jurists
of the Continent. lie 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 Arljitrator.

The opinions of the Yicomte d'ltajubu are very
brief, but in the same form of analysis as the opinions
of i\Ir. St;\3mpfli. It is 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 fpiestions 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 coniniission Jont \\\\ tcl navirc est poiu'vn, nc sufKt pns
■j/our Ic couvrir vis-a-vis ilu ncutro tlont-il a viole la ncutralilo.
^.♦, comment Ic bcfligorant sc plaindrait-il do rapjilicatiou do
«'c principo? En saisissant ou dotcnant Ic navirc, lo noiitrc nc
iait cpi'ompoclicr Ic bclligorant dc tircr profit do lafrandc com-
inisc 8ur son tcrritoirc par cc memo bclligorant; tandis que,
en nc procodant point centre Ic navirc coupablc, Ic noutre

152 Tin: TREATY OF WASHINGTON.

s'cxposc justcnicnt t\ cc que I'autrc bnlli^cranl suqKctc sa
bonne /oi.''^

Ill tlicse observations, "vvc see tliat the Vicomtc
iVItajuljii appeals to tlic same "intuitive pcrccjitions
of right" which arc so unpahitable to the British Ar-
bitrator.

The Viconite iVItajubu does not give lis any o])in-
ion on tlie sul)ject of "due diligence generally consid-
ered f which tends to prove that his call for ai'gunient
on tliat point was not induced by any need on his
jxart for elucidation of Counsel.

The opinions of Count Sclopis, — not only those in
whicii he judges the particular cases, but especially
those in which he discusses the (jucstions of public
law, as to which nicru oj)iulon was drawn i'roni the Ar-
bitrators, virtually at the Instance of (ireat Jh'Italn, —
lu'c instructive and interesting dis(|uisitions, of j)(!r-
niancnt value as the views of an erudite legist and a
practiced statesman. The paper on due diligence If^
remarkable for its })rofound 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 Koundell Palmer,
which Would lower the generality and the; greatness
of tlu! Treaty llules to the level of the munici]»al law
of Great Britain.

And now, having reviewed the stipulations of the
Treaty In this rcsjicct, the debates attending it both
before and after its conclusion, the proceedings of the
Tribunal of Arbitration, and the separate opinions of
the Arbitrators, m'o come to the consideration of wlmt

ALABAMA CLAIMS. 153

tliey actually tleclded, tlie immediate efiect 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.

iu:vn:w of the decision of .the tiudunal on national

LOSSES.

To begin, let us sec what was the true thought of
the Tribunal regarding the class of claims, as to which
the British Government displayed so much supertlu-
ous emotion subseipicntly to the })ublication of the
American Case, and which the Tribunal passed upon,
in elVect, without previous decision whether they were
or were not emln'accd ir. the Treaty.

I liavc already called attention to the fact that no
consideration o? (//'net or indiro'l^ inu/io/icitc <»r co/tst:-
rji/()i(ic(/, appears in that opinion of the Tribunal.
The Arbitrators express a conclusion, not the reasons i.*^,,
of the conclusion. AVe might, it is true, easily infer
those reasons from the laniiuaire in which the conelu-
slon is expressed. That language excludes all such
trivial questions as whether "direct" or "indirect,"
and invokes us to seek for the luiexpressed reasons in
some higher order of ideas. Meanwhile we have, at
lengtli, in the Anal "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
tlic 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 'iHJ' TliKATV OF WASHINGTON.

jiulgincnt of lliu Triljiinal, pro^K'rly tlistlnguiblialjle
I'ruiu till' general expenses of tlie war carried on "by
tlie United States."

lleiv, tlie ihajor premise is assumed as already do-
termineil or admitted, namely, that "the general ex-
penses of tlic war" are not to be made the subject of
award. AVhy not':! Because such expenses are in
tlie nature of ///'//Va'^ losses? Xo such notion is in-
timated. Because the claim, as Leing for indtrcd
losses, is not within the purview of the Treaty ? That
is not said or implied. Jk'cause such a claim is be-
yond the jurisdiction of the Tribunal? No: for the
Tribunal takes jiu'isdiction and judges in fact. The
(juestion then remains,— why is a claim for losses
l)ertaining to the general expenses of the war to be
rejected ?

Tliere can be no mistake as to the true answer. It
is to b'j found in the preliminaiy oj/mion cx]»ressed
by the Arbitrators.

The Tribunal, in that oi)inion, says that the contro-
verted [the so-called indirect] claims "do not consti-
tute, upon the principles of international law a])plica-
ble to such cases, good foundati(»n for an award of
com])ensation or computation of damages between na-
tions." AVhy 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 award of compensation or com-
putation of damages between nations V The answer
is tliat such subjects of reclamation arc " not properly
distinguishable tVom the general expenses of war."

ALABAMA CLAIMS. 155

Let us analyze tlicsc two separate Init related
opinions, and thus make clear the intention of tlic
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 equipiuents in its ports, or the issue of
liostile 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 t\iQ principles of international laui ai)plical)le
to such cases" [excluding, that is, the three lUiles],
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
clainiH of which they did not take jurisdiction, and
])aj'tially in another place as to others of which they
did take jurisdiction, — the t\vo partial statements be-
ing complementary one of the other, and forming to-
gether a perfectly intelligilde and complete judgment
as to the whole nuitter.

The direct efl'ect of the judgment as between the
United States and Great Britain, \^ to prevent either
Govemunent, when a Belligerent, from claiming of the
othei", Avhen 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 duo diligence for the

150 'I'li^ tui:aty of Washington.

pivvontlon of violation of neutrality in tlic ports of
such Neutral. Tliat is to say, the i)arties to tlic
Treaty of "Wasliington are estopped froni claiming
compensation, one of the other, on account of the n.'v
tional injuries occasioned by any such breaches of
neutrality, not because they are iudurd losses, — for
they are not, — but because they arc uatloual losses,
losses of the State as such. And each of us may, in
controversies on the same point Avith other nations,
allege iWinond authority of the Tribunal of Geneva.
But, while national losses incurred by the Bellig-
erent as a State in conse(iuence of such breaches of
neutrality are not to be made the siibjcct of "com-
pensation or computation of damages,'\ill 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 of
that part of the Decision.

These conclusions are the inevitable result of care-
ful comparison of the several claims with llie several
decisions. True it is, the mttioual claims of indem-
nity for the cost of the pursuit of the Confederate
cruisers hai)pened to come before the Tribunal asso-
ciated with fe.rictly private claims, and the strictly
2))'ivate claims on account of payment of extra war
premiiuns associated with national claiins ; but these
are perfectly immaterial incidents, which do not in
any way affect appreciation of the oj)inions of the
Tribunal.

Another subject of reflection suggests itself, in
comparing the respective decisions on national and

ALABAMA CLAIMS. i:

-»!

on private lossesi, i)ro(luced hy (lie failure of a Xcii-
tral to maintain neutrality.

We asserted the responsibility of Great Britain
for tlic acts of such of the Confederate crui>;ers as
came •within either of the three llules, just as if those
cruisers liad been fitted out or supjdied by the Brit-
ish Government, to the extent at least of the prizes
of private j)roperty "whicli those cruisers made. That
■\vas the theory of imputed responsibility. Any cruis-
er enabled to make prizes by the fault of the Brit-
ish Government was to be j'cgarded as ^^ro tan to a
British cruiser, and Great Britain, in the words of
the Bi'itish Counter-Case, " treated [iu 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.

i\Ioreovei*, it was argued on both sides, as by com-
mon consent, that the question between the two
Governments was one of war, conunuted for indem-
nity.

"Ilcr [Hrcit r»nlniirs] nets of actual or constructive coni-
])licity uilh the Confederates," pays tlie Anierieau Ari^unieut,
"gave to tlic United Slates the same riglit of uar against lier,
.IS iu similar circumstances she asserted against tlie Xetlier-
lands.

"We, the Ignited States, holding tliosc riglits of war, have
relinquished tliem to accept instead tlic Arbitration of this
Tribunal. And the Arbitration substitutes correlative legal
damages in the place of the right of war."

This position is clearly stated iu the British Coun-
ter-Case as follows :

"Ilcr Majesty's Government readily admits the geuci'al

15S

Tin: TllEATY OF \YASIIINGTON.

"principle lliat, wlicrc 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. AVhether such capture be made by letters of
manpi", or by regular men-of-war, is innnaterial ; in
eithev fonn it increases the resources of one Belliger-
ent and it weakens those of the other; and if the
Neutral fits cut |or in violation of neutral duty, suf-
iers to be lilted 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 ])roducing decisive eflects adverse to the
other Belligerent. Tiiese are the national losses, or,
as the British Government insists, the indirect losses,
intlicted 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 eftect relegated
that question to the unexplored field of the discre-
tion of sovereign States.

Claims of indemnity for the national losses grow-

alada:ma claims. 150

ing out of a state of war being thus disposed of, we
arrive at tlie great class of private losses, ^vbicb chief-
ly occupied the time of the Tribunal.

DECISION AS TO TKIVATE LOSSES.

The Arbitrators, assuming that, pursuant to the
command of the Treaty, they are to be governed by
the three llulcs, and tlie principles of international
law not incompatible therewith, proceed to lay down
the following prefatory positions, namely :

1. "Tlic 'due diligence' referred to in the first .'\nd third of
the said llulcs, ought to be exercised by neutral Go.erunicnts
in exact proportion to tiic risks to ■which either of the IJelligcr-
cnts may be exposed from a failure to fulfill tiic obligations of
neutrality on their part.

2. " The eircunislances, out oi^ wliieh the facts constituting the
fiubject-niatter of the i)resent controversy arose, were of a na-
tui'e to call for the exercise on tlic part of Her llritannic ^laj-
csty's Government of all j)0ssible solicitude for the observance
of the rights and the duties involved in the proclamation of
neutrality issued by Iler 3I.ijesty on the 1.3th day of ^Nlay, 1861.

3, "The elfects 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 ■whicli the Gov-
ernment of the belligerent I'ower benetited by the violation of
neutrality may afterward have granted to that vessel; and the
ultimate 8te)>, by which the offense is completed, can not be
admissible as a ground for the absolution of the oliendor; nor
can the consummation of his fraud become the means of estab-
lishing liis innocence.

4. "The privilege of cx-tenitoriality accorded to vessels of
war lias been admitted into the laws of nations, not as an ab-
solute right, but solely as a proceciling founded on tlie princi-
ple of courtesy and mutual deference between ditferent na-
tions, and therefore can 3ievcr be aj)pcaled to for the protcc-
lion of acts done in violation of neutrality.

IC^Q THE TUKATY OF WASHINGTON.

r>. "The !il)souce uf a previous notice can not be rcgardcil as
ft failure in any consi<leration required by the law of nations,
in tli()>e casc's in Avhicli a vessel carries Avitli it its own con-
(.k-ninatioii.

0. "In order to iinitart to ariy supplies of coal a character
inconsistent with the second llule, prohibitin:; the use of neu-
tral ports or waters, as a base of naval operations for the Del-
li"erent, it is necessary that the said supplies should l;c con-
neeteu with special circumstances of time, of ])ersons, or of
place, which may combine to give them such character."

K(3C'i>ing in view these riil-js of construction, tlie
Tribunal proceeds to judge the Britisli Government
in re^^•\rd to each of tlie Confederate cruisers "before
them.

As to tlie Alahama, originally "No. 200," construct-
ed in tlie ])urt of Liverpool and armed near Terceira,
througli tlic agency oi {\\q. A(jrij>piint and JSiduoncf^
dlsi)atched from (Jreat Britain to that end, tlu; Tri-
bimal decides that tlie British Government failed to
use due diligence in the performance of its neutral
obliLcations:

1. Tiecause " it omitted, notwithstanding the warnings and
olVu'ial rei)resentalions made by the diplomatic agents of tho
I'niled States during the construction of the said 'No. 290,' to
take in d\ie time any ctVectivc measures of pre'cntion, and that
those orders which it did give at last, for the detention of tho
vessel, were issued so late that their execution was not prac-
ticable;" 2. Uccause," 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 suflicicnt
to release (ireat Uritain from tho responsibility already ii>-
ciirretl;" .T. Uecanse, *' in despite of the vio ations of the neu-
trality of (treat Britain conunitted 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

ALADAMA CLAIMS. 101

Great 15rilain, instead of being j)rocee<leil against, as it ouglit to
liavc been, in any and every port •within Britisii jurisdiction
in Avhich it miglit have been Ibimd ;" 4. And because " tlie.
Government oi'lier IJritannic ^lajesty can not justify itself fur
a failure in due diligence on the i)lea of the insutHcicncy of tliC
legal means of action which it possessed."

As to tlie Florida^ originally called Oreto^ the Tri-
Ijunal 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 Orcto in the i)ort of Liverpool, and to its issuo
therefrom, Mliich facts failed to induce the Authorities in Great
Britain to resort to measures adequate to ])revent the violation
of the neutrality of that nation, notwithstanding the warnings
and repeatetl representations of the Agents of the United
States;" 2. l>ccausc"it likewise results irom all the facts rela-
tive to the stay of the Orcto at Nassau, to her issue from that
port, to her enlistment of men, to her supplies, and to her arma-
ment Avith the co-operation of the r>riiish vessel Prince Alfred
•xi Green Cay, that there was negligence on the ])art of the
British Colonial Authorities ;" 3. Because, " notwithstanding
tlic violation of the neutrality of Great Britain committed by
the Orcto, this same vessel, later known as tlic Confederate
cruiser l-'lorida, was nevertheless on several occasions freely
admitted into the ports of British Colonies ;" and, 4. Because
"the judicial acquittal of the Orcto at Nassau can not relieve
Great Britain from the responsibility incurred by her under tlic
l)rinciples of international law; nor can the fact of the entry
of the J'^loridd into the Confederate port of ^lobile, and of its
stay there during four months, extinguish tlie 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

IQ2 Tilt: TKKATY OF WASHINGTON.

iuf^" lier diiriiu'- the period of time anterior to her en-
try into the port of Melbourne : but —

"That Croat ISritain lias failed, by omission, to fulfill the du-
ties ])rescribcd by the second and tliird of tlic liules aforesaid,
in the case of this same vessel, from and after her entry into
llohsoifs ]>ay, and is therefore rcsponnildc for all acts commit-
ted by that vessel after her departure from Melbourne, on the
18th day of February, 18G5."

The Ti-ibunal farther decides as to tlic Tuscctloosa,
tender to the Ah(I>aina, and as to the Clarence, the
Tifcont/, and the .^^ I /v//c/', tenders to the Florida:

"That such tenders or auxiliary vessels bein^^ properly rc-
<;arde<l as accessories, must necessarily follow the l;t of their
principals, and be submitted to the same decision -which ap-
plies to tiiera respectively."

As to the other vessels accused, namely, the Jidri-
biffioft, Ocpvgia, Sumter, Nashville, Tallahassee, and
Chid'amavga, the Tribunal decided " that Great Brit-
ain has not failed, by any act or omission, to fidfdl
any of the duties prescribed by the three Ivules of
Article VI. in the Trerty of AVashington, or l)y the
principles of international law not inconsistent there-
with.^'

Thus far the Tril)unal 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-

««9MNtf**!'^'^*!!^

"■.i:^-^

ALABAJLi CLAIMS. 103

sation, inasmuch as they depend in their nature upon
future and uncertain contingencies;" 2. "In order to
arrive at an ccpiltaljle compensation for the dama-
ges "svhich liavc 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 sj)irit and the letter of the Treaty
of Washington, to adopt the form of adjudication of
a sum in gross rathf ' than to refer the subject of
com2">en sation to Assessors, concludes as follows:

"TIic Tribunal, making use of the authority confcrrcil upon
it l)y Article Yll. of the said Treaty, by n majority of lour
voices to one, awards to the United States the sum ofJlftecu
millions five liundred thousand dollars in gold as the indemni-
ty to be paid by Great l^ritain to the United States for the
satisfaction of all the claims referred to the consideration of the
Tribunal, conformably to the provisions contained in Article
VII. of the aforesaid Treaty.

"And, in accordance ■\vit»h 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 arc hereby fully,
perfectly, and finally settled.'

" Furthermore, it declares that each and every one of the said
claims, Avhethcr 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 iuadmissiblc."

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

104 TIIH THKATY OF WASHINGTON.

tliut the signature is but aiitlientlcation, and the body
of the Decision sets fortli all the diU'ereuces of opinion
existing; among tlie Arl)itrat(~>rH. Tlius, ISlv, Adams
and Mr. Sta-mjilli were ovci'i'idc*! on two (jucstionM;
and yet they signed the Act. ISo the Vieonite d'lta-
jul);i was overruled on the great (|uestion of the lia-
bility of (ireat IJi'itain for the SliendndodJi) and yet
lie signed the Act. In t'ej)arating himself from Ins
colleagues in this respect, the British Arbitrator ex-
liibiled liimsiilf as wliat he was, as most of his ac-
tions in the Tribunal demonstrated, — as his 'oubse-
quent avowal established, — not so much a .Tudge, or
an Arbitrator, as tlie voUuiteer and oflicious attor-
ney of the iiritish (lovernment.

KI-Fi:CT OF TIIK AWARD.

«

In reileeting on this Award, and seeking to deter-
mine its true construction, let us see, in tlie first jdace,
what it actually ex[)resses either by inclusion or ex-
elusion.

The A^\•ard is to the United States, in conformity
with the letter of the Treaty, wliieh has for its well-
defined object to rem(n-e and adjust complaints and
claims "on the part of the United States."

Jiut th(i histoiy of the 'JVeaty and of the Arbitra-
tion shows that the United States recover, not for tlio
benefit of the American Government as such, but of
such individual citizens of the United States as shall
appear to have sutfered loss ])y the acts or neglects
of the British Government. It is, however, not a sjie-
cial trust legally affected to any particular claim or

ALABAMA CLAIMS. 105

cLiIm.ints, but n, general fund to Lc atlministered l>y
the United States in good faitL, in conformity with
tlieir own concej)tion9 of justice and equity, within
tlie range of tin; Awai'd. If, according to any tlieory
of distribution ado])ted Ijy the United States, the
sum awarded j)rove inadequate, we have no chum on
(ireat Britain to suj)ply tlie deiiciency : on the other
hand, if tlie Award should prove to Ix! in excess, we
ai"e not accountable to Great Britain for any balance.
On this point, j)recedents exist in tlie dii)loinatic his-
tory of (treat Jiritain lierself

The Tribunal does not aiford us any rules of limit-
ation affectlnix the distribution of the Award,- un-
less in tlie declaration that "prospective earnings,''
"double claims" for the same losses, and "claims for
j^ross freinrhts, so far as they exceed net freiirhts," can
not properly be made the subject of compensation, — ■
that is to say, as against Great Britain.

Nor does the Tribunal define allirmatively what
claims should be satisfied otherwise than in the com-
ju'ehensivc terms of the Award, which declares that
the sum awarded is "the indemnity to be ])aid by
Great Britain to the United States for the satisfac-
tion of all the cliff HIS nfcrml to the coHHlderathm of
the 'rrlliiiiKtl^ conformably to the ])rovisionH. cont/iined
in Article Vlf. of the aforesaltl 'IVeaty."

The Arbitrators, — be it observed, — do not say for
the mtif<facti<»i of certain (specific claiin.s ainowj tJio.se
referred to the consideration of the Tribunal, but of
" all the claims " so referred conformably to the pro-
visions of the Treaty.

1(50 THE TUEATY OF WASHINGTON.

Now, tlic practical question wliicli arises is wlietli-
or the sclicduk's of claims, Avhicli were presented to
tlic Tribunal as docnnientary pj'oots on the part of
tl»c United States, arc conclusive, either as to what
they contain or wliat they do not contain, to establish
ruK's of distribution under the Award.

Tliis point is settled by what occurred in discus-
sions before the Tribunal.

Great Britain had presented a table, composed in
large part of estimates, ap])reciations, and arbitrary
or suppositious averages: in consequence of M-ldch
the United States presented other tables, to w!iich
the British Agent objected that these tables compre-
liended claimants, and subjects of claim, not compiised
in tlie actual schedules filed by the United States: to
winch tlic American Agent replied by showing that
the Tribunal had before it, in virtue of tlie Treaty,
all the reclamations made by the United States in
the interest of individuals injured, and comprised un-
der the generic name oi AJdlxnna Claims [le triljunal
reste saisi do la ([ucstion de tontes les reclamations
faites par les Etats-Unis dans Tinteret des individus
loses, et comprises sous le nom generique dc reclama-
tions dc VAhtlxnua].

Some discussions on the same subject afterward oc-
curred between ]\lr.Sta'mpHi and Sir Alexander Cock-
burn, which conclusively prove that the result reached
did not accept as binding either the tables pi'csented
by the United States or the deductions therefrom
claimed by Great Britain. The estimate of j\Ir.
StiempHi seems to have been the basis of conclusion ;

ALABAMA CLAIJIS. 107

and that estimate is founded on dividing the diiVcr-
cncc between tlie American estimate of JiNl4,4:o7,0<)0,
and the jjritisli estimate of )i^7,07•l,000, the inean of
wliicli is Ji>10/.)05,U00: wliicli mean does not in any
sort represent the actual claims of the United States.

Indeed, one of the Arbitrators e\])ressly dcchircd
that, in arriving at a conclusion, the Arbitrators were
not to be regarded as making an assessnicut, or con-
fining themselves to the schedules, estimates, or tables
of either of the tv^o Governments.

Whether the sum a^varded be adequate, depends, in
.my opinion, on "whether distribution be made among
actual losei"i onhj and citizens of the United /Stated.

ALIDITV OF TIIIC AWAUD. •

The principles of the Award are in conformity with
the llules of the Treaty, which do but embody in j)re-
cise language the traditional policy, inaugurated by
Washington with the active supjwrt of Jell erson, pro-
fessed by every successive President of the United
States, and authenticated by repeated Acts of Con-
gress.

That Great Britain loyally accepts the Award, and
will in due time pay to the United States the amount
awarded, l^ is impossible to doubt. Tlie Queen's
si^eech, at the opening of the present session of Par-
liament, not only declares the acrpiicscence 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,

108 'i'li' ruicA'iv or wasiiingtox.

siK'li as tlie Earl of Dorhy, the ^Marquess of Salisbury,
ami Lor4 Cairns, in tlio House of Lords, and, in the
House of Conunons, ^Ir. Disraeli, ^Ir. Ilorsnian, and
others, spoke coniplainingly of the Treaty, and of the
new Kules, i-ather than of the Award, yet Lord Gran-
ville, tlie iMarquess of llipon, and the Lord Chaneel-
lor, in one House, and ^Ir. Gladsto)ie, ]\Ir. Laing, Mr.
Lowe, and otliers, in the other House, defended the
■whole transaetion with its results, as alike beneficial
to Great Britain and the United States.

Among the discontented persons is ]Mr. Laird, who
finds himsolf characterized as one of those who prefer
"j)rivate gain to ])ublic honor," and who seems to
think that the Government of that day did not in-
vcstlfjate him and his family so much as it might and
sliould have done to the end of detecting and expos-
ing the false })retenses with whicli they covered up
the illegal destination of the Alabama. Lord Redes-
dale also continues to mourn over the insensibility
of the Hritish Government to his partnership argu-
ment, and refuses to be comforted, althougli the Gov-
ernment did, in fact, ])resent the aigument with all
possible seriousness in the British Counter-Case and
elsewhere, in season to have it distinctly responded
to by the Counsel of tlie United States (Argument,
p. 470 and scq.^, and considered or not considered by
the Tribunal.

The elaborate speecbes 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 CLAnrs. 1G9

amount .iwartled as iiuleinnity. Earl Granville, in-
deed, does not fail to remind the Earl of DerLy of tlic
admission made by the latter in the House of Com-
mons, to the cftect tliat the Americans Mere very
likely to establish tlieir claims, or some of them at
least, and to get their money. This admission on the
part of Lord Stanley evinced his manliness and trutli-
fulness. Even the Chief Justice at Geneva Avas forced
to concede the responsibility of Great Britain for the
acts of the Ahdxnna, and did not very skillfidly es-
cape making the satne concession as to the Floridu.

Tlie marvel is, that Lord Russell should have so
persistently refused to agi-ec to any terms of redress,
when iic himself could write to Lord Lyons on the
27th of March, 18G3, " that the cases of i\\Q Alahama
and Ovcto were a scandal, and, in some degree, a re-
]u-oach to our laws.'' I demand of myself somciim^.^,
in reflecting on the strange obstinacy of Lord llus.sell
in this respect, as contrasted with the conduct of the
Earl of Derby, the Earl of Clarendon, and Earl Gi-an-
ville, whether there be not some mystery in the mat-
ter, some uiuliscloscd secret, some unknown moral co-
ercion, to account for and explain the conduct of Lord
Kussell? The extraordinary incident of the failure
of the Government to obtain from the LaAv Ollicers
of the Crown any response to the call for tlu'ir opin-
ion in season to detain the Alahama, — which incident
Sir Iloundell 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 Tin- TUKATY OF WASHINGTON,

Kusst'l], witli wliicli lie is credited Ly 'Mv. Adams,
^[jiy it not linve l>een, must it not liuve been, Lord
Palmerston 1 Is Karl Russell solely rcsponi;ible for
tlie deplorable errors of that Administration 1 *

* I repeat, in (Ircat ]>ritain issue is not to be made on the
|icc\uiiary part ot' tlie Award, but on tlie construction of the
opinions cxjircsscd and tiic legal conclusions arrived at by the
Tribunal of Arbitration.

Tlie opinions ol\(ll the Arbitrators in the case ot' the -lA/i'-'a-
»»(^, includiuLj that of the IJritish Arbitrator, are concurrent to
the ellcct that, by re.'.son of the mendacity of her builders, the
Lairds, co-o))cratini:; with corruption, negligence, or stupidity
on the jiart of the Uoard of Customs, the British Government
Avas made responsible for the doprodationa committed by licr
on the commerce of the United .States.

13ut the circumstances of the actual escape of th.e Alabama
reveal a singular im])erfection in the administrative mechanism
of the Ibiti^h (lovernnicnt.

On the 23d of July, 1802, the British Government -was
aroused from its indilVerenee in regard to the equipment of tho
Alabama, by receiving iVom Mr. Adains, with some other
jiajters, an opinion of a (^"'^'(^•I's Counselor, ]\Ir., now Sir Ilobcrt,
Cullier, to the ellVct that, if the Alabama were sutVered to de-
part, the Board of Cu.stoms and the Government would incur
"heavy responsibility." The case had become urgent. The
Alabama might sail at any moment. Lord John JJussell has-
tened to hiile himself under tho robes of the "Law OniccrS of
the Crown," — that is to say, Sir John Harding, the Queen's Ad-
vocate-General; Sir "William Athciton, the Attorney-General;
and Sir Uoundell I'abner, the Solicitor-General.

]bit the oracles did not speak until the 20lh of July, and
then advised ddcntio.i ^ in consequence of which, on tlie morn-
iiKj of that (la>/, i\\Q Alabama, whose managers ap])ear to have
had intimate knowledge of every step taken or not taken by
the Government, departed from Liverpool.

Lord John KusscU, in a conference with Mr. Adams on the
31st of July, imputed this misadventure to "tho sudden dcvcl-

ALABAMA CLAIMS. 171

It deserves to be noted iu tliis leliition that al-
tliongli Edwards and possibly some otLer of the pub-

ojimciit of a malfidy of llie Queen's Advocate, 81i- John D.
Ilardiiii^, Avliicli liad utterly incaj)acitcd liim for the transaction
of business. This," lie added, " liad made it necessary to cull
in other parties [lie docs not say, others of tlic L<iw Ojfii:ers\
■whose opinion had been at last given for the detention of the
gun-boat."

The Counsel of the United States, in tlieir Ari^unient, invito
attention to the unsatisfactoriness of this explanation. They
found in the Documents annexed to the British Case eight
oi)inions of the "Law OtHcers of the Crown," p.-ior to that of
July 20th, r?// of which, cxccjit one dated June ^Oth, are signed
by Sir John Harding, and also cither by Sir AVilliani Athurton
or by Sir lioundijll rainier. Thereupon, we inferred that the
Queen's ^Vdvocate had become sick on or before the 30th of
June; and avc also inferred that "it was not necessary on the
2nth of July to call in new jiartics, but only to call upon the
old." Tlicsc inferences were legitimate, and were confirmed in
the sequel by the highest authority.

r>ut thereupon tlic British Arbitrator, after speaking of the
last inference as " an ungenerous sneer," remarks :

"The unworthy insinuation here meant to be conveyed is,
that Lord llussell stated that Avhich was untrue, — an insin-
uation which Avill be treated as it deserves by every one who
knows him. It is obvious that ]\[r, Adams must, in this i)ar-
ticular, have misunderstood his Lordshiji."

The Chief Justice unconsciously admits that if Lord Russell
paid this, "iic stated that which was untrue," and ex]>ccts us to
disbelieve ]Mr. Adams in order to shield Lord Kussell.

I prefer to believe ^Ir. Adams. Xay, the statement imputed
to Lord llussell by jMr. Adams is in substance reajjlr/ned and
adopted in the British Case []i.ll8].

The senseless prejudice Avhich tills the mind of the Chief
Justice in reference to the L'nited States, their Agent, and their
Counsel, is ■ rendered the more conspicuous here by the fact
that, wlien ho threw out this " ungenerous sneer" and this " un-

v*^

172 THE TUEATV OF WASHINGTON.

lie ofliccrs, Avliose negligence or fraud lias reflected so
seriously on the British Goverumeat, may have been

\vortliv accusation" of l»is against llic American Counsel, he liad
before him a statement on tlie s\ihject, jiresentcd to tlic Tribu-
nal of Arbitration by Sir IJoundell Talmer, as follows:

" Sir John 1 larding was ill from the latter part of June, 1802,
and did not, after that lime, attend to Government business.
It was not, however, known, until some weeks afterward, that
lie was unlikely to recover; nor did the disorder undergo, till
the end of July, such a development as to make the Government
aware tliat tlic case was one of ]icrmanent mental alienation.

"Altliough, when a Law Otlicer was ill, he would not be
troubled w itli ordinary business, it was quite consistent with
jirobability and expei'iencc that, in a case of more than usual
importance, it would be desired, if jiossible, to obtain the ben-
ctit of his opinion. X'ndcr such circumstances, the papers
would naturally be sent to his juivatc liouse; and, if this was
done, an.l if he was unabU- to attend to them, some delay would
necessarily take i)lace before the imi)0ssibility of his attending
to them was known.

"Lord Kussell told ^Ir. Adams [July 31, 18021 that some
delay had, in fact, occurred with respect to the Alabama in
conse<picnce of Sir John Harding's illness. lie 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. Tiic very circ\imstance that Sir J. Harding had not
already advised upon the case in its earlier stage might be a
reason Avhy X should be wished to oi)tain liis oi)inion.

•'Sir ...Harding and his wife are both [some years sincel
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 ihc 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 II. Palmer, who is able
to state positively that tlic first time liC saw or heard of the
papers sent to the Law Ollicers [/. c, all three Law Olliccrs] on

ALABAMA CLAIMS. 173

dismissed, yet it does not appear that any of the
guilty parties, sucli as Laird,^i\Iiller, Thomas, Frioleau,

the 23cl jiiul 25tli or 2Gtli of July, was on the evening of ]Mon-
day, llic 2Hl\\ of July, Avhcn lie was Rummoncd by the Atlor-
ney-(icncral, HirW. Athcrton, to consider thcui in consultation,
and •when the advice to be given to the (Government was agreed
upon." Sir Jl. Palmer thinks it his duty to add, that '' no Gov-
ernment ever had a more diligent, conscientious, and laborious
servant tlian Sir W. Atherton ; and that it is in the last degree
unlikely that he would liave been guilty of any negligence or
unnecessary delay in the consideration of papers of such im-
portance."

"We tluis learn that in the latter part of June, as the Amer-
ican Counsel had 8»i])posed, Sir John Harding was unable to
attend to the business of the Government. Xext, we are in-
formed that the ]iapers might have been sent to his jirivate
house, to remain there unattended to ; but it is iwt asserted (hat
they iccre so sent in fact. Nay, we are left to conjecture that
they migid have been sent to the house of Sir WiUiani Ather-
ton ; but it is not .asserted thutt they irerc. Indeed, Sir KoundcU
]*almer speaks of "the delivery at (heir private house," mean-
ing apparently " liouses." Next, we arc 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
iljc 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 au Attorney-General, and their wives, should leave
a Government wholly without means of knowledge on such a
subject, or should be ])ut forward to explain such delay of ac-
tion on the part of ^linisters?

Who carried the papers to the house cither of Sir John
Harding or Sir William Atherton, or both? AVhy did Lord
Russell permit six days to elaj>se without inquiring for the an-
swer to his reference Avhen every hour was pressing for action ?
Who brought the papers away from the jilace in which they
were, whether the house of Sir J.Harding, or the house of Sir

174 THE TllKATY OF WASHINGTON.

or otlicr Kni;lishiiK'n, uliosc false rcproscntations de-
ceived tlie ihitisli CIoverniiK'ut, and involved Great

W. Atliorton, if llicv ever went to citlicr? "\V)»y ■were tlicy not
sent to the lionso of Sir Uoundell Palmer? How did tliey ulti-
juately ,t,'et into tlic hands of Sir William Athcrton and Sir
Koundell Tahner?

>,'ow, whatever Sir Tioundell Palmer says I believe; and liis
declaration shows that there is no more reason to 8ii])iwse the
liaj>ers were sent, either to Sir J. Harding or to Sir AV. Athcr-
ton, of whicli iiothincj is known, than that they were sent to
Sir K, Palmer liimself, to wliom wc know they were not sent,
as lie ])osilively declares.

Observe that Sir K. I'almer takes pains to cojnmend the dili-
gence, conscientiousness, and industry of Sir W. Athcrton, from
which it is jtlain 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 i)uri)Ose as that to the deatli of Sir J. Harding and
his wile, or the insanity of Sir J. Harding.

Another observhtipn. According to Sir Koundell I'almer's
statement, there were two Rucccssivo references to the Law
Othccrs,— on the 23d and the 2oth or 2Gtl). He implies that
each of these references 7)iif/ht have been communicated to Sir
J. Harding and to Sir "William Athcrton. He does not spe.ak
of the insane Sir J. Harding <donc, as Lord Kussell docs; but
is carifiil to make excuse in like manner for tlic sane Sir W.
Athcrton. 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 him at tlieir respective dates, were not so
communicated ? Why speculate on the cflccts of tlic insanity
of Sir J. Harding or the integrity of Sir W. Athcrton? AVhy
not as well lay before us conjectural inferences founded on tho
diligence, or uprightness of him, Sir K. Palmer ? Should not tho
{i.upprcssion of tlic papers as to himself have suggested to him
that they liad been suppressed as to Sir J. Harding and Sir W.
Athcrton ?

Wc revert now to Lord llusscU's statement to Mr. Adams,

ALABAMA CLAIMS. IT

Britain in this perilous controversy ^vith tlie United
States, Imve ever Ijeenjiunislicd in any way. Indiet-

Ibrxt the delay -w.-xs caused by tlic insanity of Sir .T. Harding,
xchich vuulc it necessary to call in other parties. "Wliat oilier
parties? Why, Ibrsooth, ibc other two "Law OlVicers of the
Crown" dis<;uised by Lord Itussell under the designation
"other parties." l>ut Sir K. I'abner .issures us that the pa-
pers [if, indeed, they were sent at all] must have been sent
originally "to the Law Ofiiccrs, i.e.^all three Law Ollicers."
Lord liussell therefore liad no more right to impute the delay
to Sir J, ITarding than to Sir AV. Atherton ; for, even to this
day, Sir K. I'almer can not say to which of the two, if to ci-
ther, the delay is imputable. And yet Lord Kussell implies
that the delay was occasioned by the insanity of Sir J. Har-
ding, while neither lie nor Sir K.l'almer ventures to aflirm that
the pajjcrs 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 Oihccrs until the Alaha-
ma was ready to sail. I do not say Lord HusscU was that
person; but I think ho 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 tlio Americ.an
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 arc ncnv termi-
nated. ]5>it 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 Avhose opin-
ions the Government lives and moves; who have "papers
sent" to them by the Government in cvei'y great emergency,
Avithout their being actual and ever present members of the
Government, like the "Law Officers" of the L'nited States.
Here, in the United States, as in the case of the Maimj, for

170 TIIK TREATY OF WASHINGTON.

«

iiionts wviv, indci'cl, found aguiiiHt soino inferior per-
sous, but not against tlie responsible authors of tlie
loss and shame which tlie Alabama and the Florida
brought on Great Britain. Traces occasionally a])pear
in the journals of London of some discontent on the
])art of tax-payers, who arc now called on to respond
to the United JStates 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, if an account were taken
of the injury inflicted on the British people by the
actual losses in Confederate bonds purchased in Great
l^ritain, and the profits lost on bojids of the ignited
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
l)orts ; the payment Ijy the Government to the United

ini^tancr, *' i>ai)ors are iJiTscntrd to the Secretary of State by
llie l>rilisl\ Minister on the iltli day of October, 185'), alleg-
iiiLC unlawt'iil etiuipincnt in violation of neutrality by that ves-
sel; tlie itai)er.s arc sent to tlic Attorney-General on the 12th,
iin<» on the name day orders arc given by teleL;rai)h to enibar-
)li, the vessel, and are actually executed on the 13th at New
York.

^Ir. I'^awcelt has n(»t without reason called tlio attention of
the House of Conuuons to this defect in the conduct of the law
business of the IJritish (Jovcnniicnt. The reply that the At-
torney or Solicitor (Jeneral sliould be allowed to continue in
jtrivate Imsiness, in order to jtosscsH compdcut k)ioirlc(hjc for
tlie conduct of the business of the Government, is quite pre-
posterous; it would be just as reasonable to insist tliat the
Lord Chancellor or the Chief Justice of the Queen's Bench
must continue at tho Bar.

ALAUAMA CLAIMS. 177

States orindi'mnlty lor the captures made by tlie AJit-
b(ini((,i\\.ii Florida^ and the hiheuandoah ' tlie rise in
tlie 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 ^vill Ijc
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 Brita.in 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 tiie Triljunal close
up; but they remain as historical facts, full of admoni-
tion to all Governments. JJisciie jiiditidin moiiiti

FiLinusTi:ii onjixrrroNs.

Do the Hules, as construed ];y 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 failui'c therein is not ex-
cusable by the insufliciency of .sfdfufe means of action i
So thouglit Washington and Jell'ei'son. Tliey acted,
wlien no statute existed. It avails nothing to say
that ours is a constitutional government, witli legal
forms which imi)edc administrative action. If Con-
gress has not imparted to the Executive adequate
jiowers, — if, tor want of such fit legislation, the Exec-
utive can not act effectively in some given cases to
prevent illegal expeditions, — if, in couseqlience there-

M

178 Tin: TUKATY OF WASHINGTON.

of, the suLjcots of any friendly Statu are injured, — if,
in a Avord, we sliould ]je so foolish as to insist on
the ])rivilege of jiossessing laws designedly imperfect,
and which thus favor the violation of law, and which
are insulliciint to enabh; the President to dischai'ire
the international obligations of the United States, —
then it is proper that we should pay for the enjoy-
ment of such a j)rivilege by answering to any friendly
Power t'or the injurious consequences of our selfim-
])()sed ini])()tency to perform the necessary duties of
an indej)endent sovereign State.

There is no dilliculty 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 Avill not suifer
themselves to be misled by the interests of some ship-
builders, or the wild scliemes of somcl)and of advent-
urers, foreign or domestic, or even by the sentiment
of synqiathy for this or that foreign cause, into per-
mittini? violations of the law of the land and of the
riglits of other States. Jf, on the other hand, the
United States at any time desire or intend to go to
war with soiiie foreign Power, whether for induce-
ments of sentiment or for objects of ambition, it is to
be ]io])cd they will manfully say so, in the face of the
world, and will not sneak into national hostilities by
means of the expeditions or e(jui]iments 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
o^JiUlfUsterism, — whether fraudulently encouraged or

«> ALABAMA CLAIMS. 170

insufliciently dlscourag-^d by any Government, are in-
deed fetteved by the three Ivules, as tliey were al-
ready, so far as morality or law conld do it, heing
classed by statnce witli i)iraey, pei;jnry, arson, murder,
and other kindred " Pleas of tlie Crown." True, there
is tendency of opinion in the United States, as there
is in Great Britain, to think that all rebellion is j)re-
sumptively wrong at home, and that all rebellion is
presumptively right every where else; but that is a
tlieoiy which has its inconveniences. In a word, there
is no possildc view of the subject in which Ji/ibu.sfr r-
■i'sni is not a crime and a shame, without even the
moan excuse of possible but dishonor;djle benefits to
the United States. At all times, under all admiiiis-
trations, private ofjuipments in our ports, for the pur-
pose of hostilities against any country with which wo
were at peace, liave 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 lor such equip-
ments are "so fraught with illegality and tur]>itude
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 i)rlvate citizens
to organize and engage in such predatoiy and unlaw-
ful expeditions against a State with which that Gov-
ernment is at peace." . . . "This i)rincij>le 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

1^0 TllK TKKATV OF WAlSllINGTUX. «

States of old : huoIi is Ihuir docti'Iiio now, ucltlicr
luoro nor less by reason ot' our iiogotiatioii with Great
liritain.

SALi: OK AIIMS NOT AKri'-CTi:!) HY TIIK TIUCATY Oil Till-:

AWAIU).

Sonic ])oi'sons have sui)pose(l tliat tlie Treaty adeets
the (luestioii of the sale ot' anus or nninltioiis ot" ^var
to a iielligerent. That is an error. AVherevei', as be*
tween the j)arties to the Treaty, the sale of arms uas
lawful before, it is lawl'ul now; wherever it is unlaw-
ful now, it was \inlawfiil befoi'e. ^J'hat is a (juestion
to whieh the action of the (Jcnuan .lOnibassailor • in
(ii'cat Britain during' the late war bet^vecn hVaiieu
And (Jennany has (b'awn the attention of all Europe,
and ANhich is certain to ac(]uire iin])ortanco in any
future great war; but it is not touched, in fact, by the
Tivaty of AVashington, and did not coiuo before the
Tiibunal of Geneva.

QUESTION OF Sri'l'LIES OF COAL.

One Pi)ecific objection to the llules of the Treaty,
and only one, of any a]>i)arent force, has passed under
my observation, that of the Austrian statesman, Count
von Beust : the suggestion, namely, as to the second
Ivule, relative to conVuuj and rofittiuij in neutral ports^
which, it is alleged, " gives to England, through her
pes .;»ssion of neutral stations in all jiarts of the world,
a pali)able advantage over other States, which Lave
not the same facilities at command."

This objection is one of apprehension, rather than

A LA HAM A CLAIMS. [si

of laot. WluMi till! Unltocl States and Gi\!at r»ritaiii
sliall, ill (?()iili)rinity witli tlio Treaty, l)rliig tlu; new
IJules to tliu knowledge ot' other niaritinu! 1*oW(M's,
Hueli I\)wers will of course ])re.sent Ibr et»nsIderatiou
all |)i'0])er oltjeetions oi' (jualilieations to those Uides.

Count von Heust goes on to speak ot' the declara-
tion n)ad(! l)y Austria, Prussia, and Italy in lb(W>,
which indicates that lie was considering the subject
in thc! relation or(Vy;//'/Y//;^///r/i'atlier than ot*siin])lo re-
fitting in neutral i)orts.

J)ut the precise (juestion of the su]>ply of coal in
neutral jjorts is not prejudged l»y the 'iVeaty of
Washington, nor by the o])inions of the Tribunal of
Arbitration. The United States are (piitc; as much
interi'sted in having .iccess to suj)])lies of coal "at n(,'U-
tral stations in all ])arts of the world" as Austria, or
Prussia, or Italy; and we may ]>resume that Count
Scloj)isdid not fail to reflect on the interests of Italy
in this V)ehalf.

One of the "Considerants" of the Award had fur

its special object to prevent misconstruction of the

second Ilule. AVe quote it as follows :

"III order to iinp.irt to .any RUj>plios of coal .1 clirir.icter in-
oonsistcnt Mith the hccoihI Kulo, proliibiting the use of neu-
tral ports or w.atcrs Jis .1 b.asc of n.av.nl oper.ntions for .1 Ik'llig-
crent, it is necoss.iry iliat tlio said supplies sliouUl Lc connect-
ed witli special circumstances of time, of persons, of place,
■which may combine to give tliem such character."

Count Sclopis explains the force of the Decision as

follows :

"Quant a la question de I'ajiprovisionncment ct du charge-
ment dc charbon,jc no saurais la traiter que sous Ic point do

1S2 'J'H' TKEATY OF WASHINGTON.

vue iVwn cas connoxc .ivcc rusacjo d'luu! base (Voin'rations na-
valcs diriiiOos contre run dcs nL-lligi'vaiUi?, on (Vtoi cas flagrant
dc contralxtndc dc <juerrc. .To iic dirai jtas que Ic siiiij»Ie fait
U^woir allouc uiic (iuanlilo de charboii ])liis I'ortc que cel'c m'-
ccssaire anx vaisseaiix pour rcgac;ncr le port de Icur pays le ]»lus
voisin, constituc ;\ lui seul uu grief sutlisant i)our doniier lieu ii
line iudemnite. Aiiisi que le disait Ic Chaiieelier d'Angleterre,
le 1'2 Juiii, ISTI, a la Cliaiiibre des Lords, rAiigletene et les
Ktats Unis sc tiennent egalenieiit attaches au i)iiucipe luaticpie
qu'il ii'y a ])as violation du droit des gens cii fournissant des
arnu's aux Helligerants. ]\Iais si cet excedant dc proportion
dans rai>provisionneinei\t de cliarbon vieiit se joincire a d'autres
circonslanees cpii marquent qu'on s en est s'jrvi eonunc d'uno
veritable rcK hoxtUix^ alors il y a infraction ;i la deuxienic Regie
de TArliele VI. du Traite. C'est dans cc sens anssi que le memo
Lord Cliancelier explifpiait dans le discours iirecite la portec
de la dernierc i»arte de la dite Kegle."

The same point is treated by j\Ir. Adams as fel-
lows :

"The supply of coals to a l)elligerent involves no responsi-
bility to the Neutral, when it is made in resjionse to a deman<l
jtresented in good faith, Avith a single object of satisfying a Ic-
gilii late ])urpose, 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 maile, either tacitly or by agreement, with a view
to ])rt)mt)te or complete the execution of a hostile act.

"llenee I ])erceive Jio other way to determine the degree of
the responsibility of a Neutral in these cases, than by an exam-
inatiiin of the evidence to showthe intent of the grant in any
siieeille case, l-'raud or falsehood in such a case jioisons every
thing it touches. Even inditVerence may ib'generate into will-
ful negligence, and that will impos^e a burden of i)roof to excuse
it before responsibility can be relieved."

^\y. Adams, it will be noted, dwells on the qties-
tion of intent in this matter, as he does, indeed, iu

ALABAMA CLAIMS. 1S3

each one of Lis o})Inions, to the contrary of the line
of reasoning foUowed by the British Arbitrator.

Finally, in assenting to the Decision, the Viscount
of Itajubii remarked that, "with regard to the supply
of coal, he is of opinion that every Government is
fveo to furnish to the Belliirerents more or less of
that article."

Thus, the tenor of the Decision of the Tribunal,
and the commentaries of the Arbitrators thereon,
coml)ine to show that the second Ilule can not have
the cfiect ascribed to it by Count von Beust.

Besides which, the latter greatly errs in supposing
that the nunjerous naval stations possessed by Great
Britain in ditfei-ent ])arts of the globe give to her so
much advantage to tiie prejudice of other maritime
Powers. She pays dearly for such benefits as she
lierself 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 docs to one], she forces other Powers to ac-
.quire similar establishments to be conducted with
equal excluslveness, or she is constrained to incur the
risk of the charge of. partiality as between several
Belligerent'^. 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
berau.<e of the supply of coals to Confederate cruisers
in lier Colonial ports, nor merely because those cruis-

1S4: THE THEAIY OF WASHINGTON.

ers Avcrc permitted to pervert tlic privilege of lio.sj)i-
tality into making; .1 base of operations of Nassau or
of Melbourne. The recognized fault in tlie matter
of the SIufi((/i(f(>ah was mainly the augmentation of
lier crew at Melbourne", and the aildition of equip-
ments, witliout whie'i she could not have operated as
a crMi>er in the North Pacific. In the case of the
Ahihdiiia, and especially that of the Florida . the
fault was in allowing thein to come and go unmolest-
ed, and even favored, in the Colonial ports, when the
British GovernmiMit could no longer pretend to be
ignorant of their originally illegal character, nay,
when it was now fully aware of Avliat ]Mr. Adams
calls the "continuous, persistent, willful, flagrant false-
hood and perjury," ami the "malignant fraud," whic}i
attended the ecpiiinnent of the Confederate cruisers
in (Jreat l^ritain. It was this class of facts, and not
any such secondary consideration as the Hujii)ly of
coal,M-hich tiu'ncd tlie scale against Great Britain in
the opinions of tlic Arbiti'ators.

No: neither .he Treaty of ^Washington, witli its
Kules, n(U' the Decision of the Tribunal of Geneva,
lias inaugurated any new policy of neutrality in the
Uidted States, nor created for them any rights or
any duties not previously possessed by and incum-
l)ent on tbe Government.

WHA'r •mv. uNirKi) states have gained iiy the awaud.
What, then, it may be asked, have the United
States gained by the Treaty of Washington, and by
the Arbitration ?

ALABAMA CLAIMS. 1S5

AVc have irahied the vindication of our licrlits as
a Government; the redress of the urong done to our
citizens; the political prestige, in Europe and Amer-
ica, of the enforcement of our rii^-hts ajiainst tlic 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 l)y (Jreat Britain ; the lionoraLle con-
clusion of a long-standing controvei'sy and the ex-
tinction of a cause of war Ijetween Great Ih'itain and
the United States; and the moral authority of hav-
ing accomplished these great ohjects without war, by
peaceful means, by appeals to conscience and to rea-
son, tl^^^uo-h the arbitrament of a hiirh international
Trilninai.

That war, the great curse and scourge of mankind,
will utterly cease because of the present successful
instance of international arbitration, nobody pretends.
Questions t)f national aml)ition or national resent-
ment,— conllicts of dynastic interest, — schemes of ter-
ritoi'ial aggrandizement, — nay, deeper causes, resting
in Hupei'alnindant pop\dation or other intei'nal facts
of DKiIaise, misery and discontent, — will continue to
produce wars to the end of time.

"Noil, sans doutc," says ^\. ile i\razatlp, — spctkinc,' of tlic
notH of tlio Tribunal, — *' la t^ui-nv nVnl pfdnt l»annio «k' cc
niondo, olio n'osL jias vcnii)laore par un tribunal do concilia-
lion faisant rcntrcr au founrau Ics v\wv» iiniiationlcs dVu sor-
lir: CO n'ost pas molns un ('•vi'ncniont carac'ti'risli([»JO vi lu-u-
rcux que Ic succos dc cc tribunal dV'<piilc', de ccltc sorlc do jus-
tice internationalc." . . .

AVe, Great Britain and the United States, have in

IgQ Tin: TRKATV OF WASHINGTON.

this matiiT sliown that even a (piestlon aflectlng, or
sii})})usc'(l to alU'c't, national honor, may Lc scttk^cl l)y
arbitration ; and if we liave not cirected the establish-
ment of international arbitration as the nniversal
su))stitnte for war, we have co-operated to })i-()vc l>y
onr example that the largest i)ossible (piestions be-
tween contendinfjr (lovernnicnts arc snsee])tible of
being settled by i)eaceful arbitration. As Lord Kip-
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.
Li 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 cloutl of oflense removed
from between us, — two peoples, as Mr. Gladstone has
Avell said, on whom the seal of brotherhood lias 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. IS^

CHAPTER III.

MISCELLANEOUS CLAIMS.

TREATY rnovisiONs.

The Treaty goes on to provide, in Articles XII. to
XVII. inclusive, that all claims on the pai't of corpo-
rations, companies, or private individuals, citizens of
the United States, upon the Government of Great
Britain, arisincr out of acts committed ai^ainst the
persons or property of citizens of the United States,
during the per'od between A})ril 18, lSGl,and April
0, 1805, 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 cor])orations, companies, or pi-ivate
individuals, subje'cs 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 Conmiissioners 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 then\
by either Government.

The stipulation, it will be perceived, does not cover

188 TIIK TItKATV OK WASHINGTON'.

all existing claims of citizens ov subjects of tlio one
(rovernnK'iit .ML^ainst tlie otlier, but only claims fur
nets committetl aj^'ainst persons ( r ])r()perty on either
side between certain (leHne<l dates, — that is, during
tli«' jM-ndeney of actual hostilities in tlie United States.
It is a provision, supplementary in ell'ect to the j>re-
ceding clauses of the Treaty, conceived in the a])})ar-
ont intention of thus closing uj-> all subjects of conten-
tion LrrowiuiT out of our Civil War.

The Commission Avas duly organized by the np-
])ointmcnt of jMr. Kussell CJurney, Commissioner on
tlie part of (Jreat I'ritain, and Mr. James 8. I'^'azer,
on the ])art of the I'nited States, and of Count Corti,
Envoy K.xtraordinary and Minister IMcnipotentiary
of Italy, Connnissioner named conjointly by the two
Governments.

Tlie 'JVeaty contains detailed ])rovisions for the
prosecution of the business before the Comnwssion, to
be comj)leted -within two years from the day of their
first meeting; and the contracting j)arties engage to
consider the decision of the Connuissioners .absolutely
final and conclusive on each claim decided by them,
— to give full etVect to such decision without any ob-
jection, evasion, or delay Avhatsoever, — and to consid-
er every claim comprehended within the jurisdiction
of the Conunissioncrs as finally settled, barred, and
thenceforth inadmissible, from and after the conclu-
sion of the proceedings of the Commission.

The Connuissioners assembled at Washington on
the 2(Uh of September, 1<S71, and are assiduously en-
gaged in the determination of the claims submitted

MISCKLLANKUUS CLAIMS. iJSO

in conformity witli the Treaty, liaving before tlieni as
Airent for tlie United States, Mr. llobert S. Hale; as
Agent for Great Britain, ]Mr. Henry Howard; with
jMr. James ^l. Carlisle as Counsel, and ]\lr. Thomas C.
Cox, Secretary to the Connuisslon.

The Commission will undoubtedly complete its du-
ties within the time pi escribed by the Treaty.

rUIVATK CLAIMS ON GOVKUNMKNTS.

The intimate relation, Avhicli exists between the
dlflerent States of Christendom at the ])resent time,
lias resulted in the necessity of providing special
means for adjudicating the private claims of the citi-
zens or subjects of one (iovernment 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 Icfdslators the attention which, by reason of its
o-reat 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 trallic in their
respective- territories, on the same footing with the
inhabitants thereof, and with subjection to the lavrs
of the laud, more or less complete, according to local

190 Tin; TliKATY OK WASllINOTOX.

ivgulalloMs and to tlio tenor of treaties. Total oxcnip-
tiou iVom the loeal law is iiiaintained only })y the
sul^jects of Christian States in countries outside of
Christendom.

In iiio^^t of the countries of Cliristcndoni foreigners
[ivv i)rotected in their i)ersonal I'iglits ecjually witii
the inhabitants, and, if wronged, have access to the
tribunals tor redress, even against injuries by the lo-
cal (iovernnient itself

Generally, indeed, it may be said, with trutli, that
the ]"ights of a foreigner are better protected than
those of tlie iidiabitants of the country itself; for, in
adtlition to tlie triljunals of tlie country where lie so-
joui'ns, the foreign(>r has the benetlt of the jMinister
and Consuls of his own ccnintry.

Of this I'avor the foreigner has occasional need, it
is true; but it is a privilege susceptible of great
abuse, by reason o^ the extravagant pretensions occa-
sionally made by jiersons who may sufl'er any real or
aj)parent wrong, and who are prone to elevate trivial
grievances into international cpiestions, to the annoy-
ance of all (lovernments, and to the peril of the pub-
lic pea'?e. ]\[ost of such subjects of complaint ai'c
capable of being settled by the local tribunals, and
ought to be. The laws of Kome lie at the founda-
tion of the jurisprudence of all Europe and America
alike; the Ibrms of judicial administration are sub-
stantially similar in all the States of both Continents;
ajul 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

MISCKLLANKOUS CLAIMS. 101.

would novor dream of willidniAving from the courts
of law to make the alleged injury a sul>ject of claim
against liis Government. And it would greatly tend
to the harmony of States and the peace of the worhl,
if treaty stipulations were entered into in order to di-
minish the extent and I'estrain the frecpiency 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 tlie claims of its citi-
zens airainst foreiij-n Governments, in matters where
the party aggrieved, if aggrieved, has ample means of
redress before the tribunals, and where liis grievance
does not in the slii^i-litest deii:ree affect the honor of his
own (Jovei'nment.

These observations aj)j)ly especially to incidents
occurring in times of peace, in Avhich times the acts of
willful injury, done by any Government to foreigners
sojourning under its ti'eaty ])rotection, are fi!W in
number compared with the injuiies done to its own
snbjects or citizens, l)y 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 cithfu-
ship in his own country, seeks to force his Govern-
ment to interj)ose in his behalf, so as to obtain for him
sunnnary redress by diplomatic means in disregard
of the local law.

Meanwliile, in times of war, the resident or sojoui-n-
ing foreigner is still more solicitous to be exempt from
those ordinary consequences of militaiy operations to

"- ^

102 Tin: Tui:A'rv of Washington.

wliich ilie inli;il)i(:ints of tlie country are siiLject, and
liis solicitude is in j)ro])ortioii to tlie injuries to wliicli
he is tlius exposed. Tliis fact becanic conspicuous
in till- late war between Germany and France, and led
to iuany 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 lieat of
action, disturb the peace of min-^ or damage the prop-
erty or person, of some conunorant Englishman.

Incidents of this nature are most of all frecpient in
times of civil wai', especially in those counti'ies of
Spanish America, where nnli/arism ])revails, and the
regular march of civil institutions is interru])te(.l by
military fact'uns headed by generals, in contention
Mith 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 I'ight of war or of reprisals,
which, in elVect, is the same thing, being the adoption
of force as a renu'dy 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 CLALMS. 193

sible only in very rare and exceptional cases of ag-
gravated wrong committed by the autliorities of tlie
foreign Government.

Tlie 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 thei'e may be of evil in the world, and fre-
quently as nations dei)art on occasion from the rule
of right, yet, after all, the sense of justice among men
and the conscience of nations jirevail to such extent
that, in the end, in most cases, mere appeals to reason
suffice to obtain voluntary reparation at the hands of
tlie 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, s\icli 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

104: TIIK TREATY OF WASHINGTON.

mcnt as to tlic nature of tlie injury or amount of
the indemnity could not l)e arrived at, mixed commis-
sions have been establislicd by treaty in numerous in-
stances, to judge and decide the (juestions at issue be-
tween the t^vo contcndinc; Governments.

On three several occasions, within a brief j)eriod,
the United States and (ireat Britain have liad re-
course to the international tribimal of a mixed com-
mission for settlement of uidiquidated claims of citi-
zens or sul)jects of one country against the Govern-
ment of the other, namely, V)y the Treaty of July 2G,
1S53; by that of July 1,180.'}; and by the jiresent
Treaty of Washington. Other examples of this occur
in our earlier history. And the United States have
liad treaties of a similar character ■with the jNIexicau
liCpiiblic, with the lve])ublic of N(;w Granada, with
that o^ the United States "of Colombia, and with the
Republics of Costa Rica, Venezuela, and Peru.

An eminent French publicist, M. Pi-adier Fodcre,
observes :

"L'arbitrage, tres-iisite dans le moyen-age, a etc
presque cntierement neglige dans ies temps modernes;
Ics exemples d'arbitrage otlerts et acceptes sont deve-
nus de ])lus en plus rares, par Texperience des ineon-
venients ([ui sendjlent etre ])i'es(iue inseparables de co
moyen, ordinairement insufrisant par le defaut d'un
pouvoir sanctionnatcur. Lorsquc Ies grandes puissan-
ces constituent nn trilmnal arbitral, ce n'est ordinaire-
ment que pour des objets d'interet secondaire."

As to the absence of any power to compel observ-
ance of the award of au iuternatioual tribunal, it may

MISCELLANEOUS CLAIMS. 105

suffice to say that tlie "pouvoir sanctionnateur" is in
tlie treaty of arbiiratiou, -vvliieli nations are quite as
likely to observe as they are to observe any other
treaty. It is that question of good faitli among na-
tions upon wliicli the peace of tlie world stands.

Undoubtedly, cases occur in which the internation-
al discord or debate turns on questions ^vhere 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 Ilussell, as we have already seen, with
reference to the imputed want of due diligence of the
British Government in the matter of the Alahania
and the Florida. 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 ARniTRATION.

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-

100 Tin: -nu'.ATY of Washington.

bitratiou of the King of tlie Netlicrlauds tlie question
of rci^ponsibility for certain prizes, an incident of tlie
Irrterventiun of France in tlie alfairs of Sj)ain in the
time of Ferdinand VII. In 1827, Cii'eat Britain and
the United States referred a (piestion of boundaiy to
the King of the Netherlands. In 1843, France and
England submitted a ([uestion of indemnities claimed
by Hritish subjects to the King of Prussia. In 1844,
France and Mexico submitted a similar question to
the Queen of Great I^ritain. In 1852, the United
States and Portur'al submitted to the Emperor of the
French the (piestion of the responsibility of Portugal
for the destruction of an American Ictter-of-marque
by the Fhiglish in the port of Fayal. In 1858, the
United States and Chile submitted a (jucstion of i)ri-
rate loss to the decision of th<! King of the Belgians.
In 18G2, a ditVerence between some English olhcers
and local Brazilian authorities was submitted to the
arbitration of the King of the Px'lgians by Great
Britain and Brazil. In 1807, 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 ([uestion- of damages to the decision
of Sir Edward Thornton, the British i\linister. In
1804, Great Britain and Peru submitted a question
of private clr-ims to the judgment of the Senate of
the free city of Hamburg.

AVc shall presently liave 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 AVashingtou,

misci:llani:ous claims. io7

One of tlie earliest of our conventions of tbis nature
Avas contained in the Treaty of 1818, in execution of
an article of the Treaty of Ghent [1S15], by ^vhich
the United States and Great Britain stipulated to re-
fer a certain (juestion of indeiiiniLies to sonic friv-nd-
ly Sovereign or State. Afterward the Emperor of
Kussia 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 aad arbitrator on the part of the United
States, and a commissioner and arbitrator on the })art
of Great Britain, to assemble at Washington and as-
sess damacres under the umpiraixe of the ^Minister of
the mediating Power accredited to the United States.
This exnmple is curious and instructive, seeing that
the debtor Government, so to speak, — Great Britain, —
in order to give eflect 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 elTect to his
award. There co\ild be no better illustration of the
moral force of treaties of arbitration in the estimation
of modern States.

TENDENCY OF KEASON AND JUSTICE TO PREVAIL OVEll

FOIICE.

These many examples, it seems to me, tend to man-
ifest the increasing: desire of modern nations to tcr-
minate all their controversies, if possible, by friendly
means rather than by force. Where they can not

19S '11 1 1: TKKATY 01' WASHINGTON.

a<'Tee between tluMiisolves, tlicy establish a mixed
commission or apjioiut an arbitrator or arbitrators.
On sncli occasions the contending parties do not se-
lect an arbitrator in consideration ot* his being power-
ful, like an Emperor of the French or an Emperor of
(rermany, bnt because of confidence in the impartial-
ity of the arljiter, 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 Ke])ublic like Hamburg, or even
to iive individual judges, like the Arbitrators of Ge-
neva, or to a single p<'rson like Sir Edward Thornton.
Nay, in further proof of tLe availableness of this
method of settling national disputes, we have (Jreat
Britain and the United States, in spite of their own
]>articular quarrel, each trusting the other in, a ques-
tion between either of them and another Power.

Tl»e same disposition of mind on the part of mod-
ern (lovernmcnts, that is, the assiunjition that a se-
lected international judge or arbitrator will decide
inijiartially, whether he be powerful or weak, and of
whatever natior»ality he may be, appears in the con-
stitution of mixed commissions. Generally these
conunissions consist of two commissioners, one ap-
j)ointetl l)y each of the respective Governments, with
authority given to the commissioners to select an um-
l)Ire to determine any differences which may arise be-
tween them ; or sometimes the umpire is agreed on
by the two (jrovernments.

Now, in the very heat of our late controversies with
Great Britain, we consented to accept the Biitish

MISCELLANEOLS CLAIMS. 19^

Minister, Sir Frederic Bruce, as umpire between U5
and the United States of Colombia. And at the same
period of time, Great Britain accepted Mr. B.R. Curtis,
of Massachusetts, as umpire imder the Treaty for set-
tling the claims of the Hudson's Bay Comjtany against
the United States. And in this case, be it remember-
ed, the Commissioners, just men both. Sir John Bose
and ^Ir. Alexander S.Johnson, agreed on their award
without troubiin;:: ]^Ir. Curtis.

Under the pr<v-.us claims' Treaty between Great
Britain and tlie United States, the two Governments
in the fii^st instance agreed on e?*-President Van Buren
as umpire, and, on his declining, they chose ]\Ir. Bates,
an American Banker residing: in London.

Under the claims' Treaty between the United States
and New Granada, an American, ^Ir. Upham, of Xew
Hampshire, was umpire ; and another American, Dr.
Francis Lieber, of Xew York, under the recent Treaty
between the United States and the ]Mexican Bepublic.

Strongest of all is the caao of the Treaty between
Paraguay and the United States, which submitted
their controversy to an .American citizen, ^Ir. Cave
Johnson, of Tennessee, as sole arbiter, and he decided
aizainst the L' lited States.

Is it possib t to misapprehend the moral of such
facts i In all these various aspects of the subject, do
we not perceive the sense of justice tending ever}'
day 10 penetrate deeper and deejier into the councils
of nations, and the voice of reason, of which interna-
tional lav: is the expression, influencing more and
more the action of Governments \

200 'i'JIl^ TWIIATY OF WASIIIXGTOX.

Tlir.nUY OK AUniTUATION.

Sovereign States, it lias been said, slioiild be trust-
ed to (1(^ justice s])ontaueously, and v»itl»out h\uubling
tliemsclves to be judged by an arbitrator. It might
"vvith just as good reason be fcaid tliat all men should
be trusted to do justice spontaneously, and \vithout
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 aj-)])licable 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. Ad-
mit iliat in a m.'ijority of cases reason will prevail to
prevent or to settle controversies between individual
persons ; but reason does not suffice in all cases, and
it is for such exceptional cases that tribunals of jus-
tice exist, without which, in the attem];t of men to
right themselves, society would be dissolved into a
state of anarchy and bloodshed. The considerations
which recommend the establishment of tribunals hav-
ing autliority as such within the limits of eacli sov-
ereign State, are still more cogent when applied to
sovereign States themselves, which, having no com-
mon superior, must of necessity determine their dif
ferences by war, unless they accept the mediation of
some friendly Power to restore concord between them,
^ or unless they recur to arbitration, by mutual consent,
in one form or another according to circumstances, as

MISCKLLANKOUS CLAIMS. 201

the United States and Great Britain linve done ])y the
Treaty of Washington.

So many cxani})luH of arl)itration between Govern-
nienls, Avithin a recent ])eri()d, contribute to ])rove that
]\r. I.Vadie': lAjdere errs in assuming that in our day
" oU'ers ot'arbitrati(jn nnuk' and acce])ted are becoming
more and more rare." On the contrary, this iiustliod
of terminating national dilferenees may now be re-
garded as permanently fixed in the international juris-
prudence of Euroi)e and America.

WISDOM OF THE rRKRENT .AIIXKl) COMMISSION.

I conclude, tlierefore, that the United States act-
ed wisely iu submitting the claims of British sub-
jects to a mixed commission by the Treaty of
AVas]iin2;ton.

Some persons in the United States, with disposi-
tion to criticise the Treaty of Washington, have sug-
gested that this Commission may result in finding a
large balance of many millions due from the United
States to Great Britain.

I think the supposition is altogether gratuitous,
and that no such considerable balance will l)e found
to be due. If it .should l)e so, however, tlie fact will
in no sort detract from tlie credit belonging to the
Treaty. If the Government of the United States, in
the course of its eflbrts to suppress insurrection, shall
have done injury to the subjects of Great Britain for
which we are justly resjionsible by the law of nations,
it is altogether proper that we .should pay whatever
indemnity therefor may be found due by the judg-

202 Tin: theaty of Washington.

iiRMit of a l.'iwfiilly cuiistitutcd iutcrnational tribunal,
siR'li as tlio jtrcsciit Conunission.

CitizL'iis of tlio United Sf^.tcs are not slow to in-
volve the intervention of tlieir (xovernment in behalf
of any American injured in tlie progress of civil war
in other countries, and on sucli occasions to talk loud-
ly of ^^ outridjcs to citizens:" let us do as wc would
be done by, and concede that Great Britain is entitled
tc judicial examination of the cases of her subjects
alleging injury by the occurrences of civil war in the
United States.

THE NOllTIIWliSTEUN liOUNDAUY-LINE. 203

CHAPTER IV.
THE NORTinVESTEUN BOUNDARY- LINE.

I'KOVISIONS OF THE TREATY.

The Articles of tlie Treaty from XXXIV. to XLII.
iuclusive dispose of the long-standing dispute be-
tween the United States and Great Britain reirardino:
the ti'iie Avater-lino by which the Territory of AVash-
ington is separated from Vancouver's Island.

The subject of the controversy, and the agreement

for its termination, arc set forth as follows:

"Whereas it was fitipulatcJ l)y Article I. of tlic treaty con-
oluiled at ^Va^^llilll:;tOIl on the Ifith ot'.Tiine, ls40, between the
ITniled States ami Her J»ritaiuiic iNIajesty, that the line of
Loundary between the territories of the United States and tliosc
of Her Uritannic ^Majesty, from the point on tlic forty-nintli
parallel of north latitude up to which it liad already been as-
certained, sliould bv continued westward along the s^aid paral-
lel of north latitude ' to the middle of the channel which sepa-
rates the continent from Vancouver''8 Island, and thence south-
erly, through the middle of the said channel and of Fuca Straits,
to tlie Pacific Ocean ;' and whereas the Commissioners api)oint-
cd by the high contracting I'arties to determine that ])ortion
of the boundary a\ hich runs southerly through the middle of
the chanxicl aforesaid, were unable to agree upon the same ;
and whereas the Government of Her Uritannic iMajesty claims
that such boundary-line should, under the terms of the treaty
nbove recited, bo run through the Kosario Straits, and the Oov-
crnment of tho United States claims that it should be run
tlirough the Canal do Ilaro, it is agreed that the respective

204 TIIK TIJKATV OF WASHINGTON.

claims oC the (Jovoniinoiil of tlio I'liilt'd States niitl of tlio Ciov-
cniiiU'iil of UiT r>rit.'\r.:Mt.; iMajosty nliall bo hulmulto<l to tlio
nrbilralioii ami award of His Majt'siy the Mmpcror of (iormaiiy,
wlio, IiaviiiLj r(.\L,'anl lo llio abovo-iiiontione'd Arliclo of the said
Treaty, shall deeidu thereui>oii, liiially and •without appeal,
Avliieh of those elaims is most in aoeordaiice ■with the tiaie iii-
tetpretatlon of tiie Treaty of Jime 1 "», 1840."

StibsccnuMit ai'ticlos prescribe tliat tlic qtiestioii
sliall be discussed at Berlin by tlie actual diplomatic
Itepresentatives of the respective (lovcrnmeiits, either
tirally or by written armunent, as and wlien the Arbi-
traior shall see fit, either before the Arbitrator him-
self, or before a person or persons named by him for
that purpose, and either in tlio presence or the absence
of cither or both Agents.

A previous arrangement in a treaty negotiated by
the Earl of Clarendon and ]\Ir. Johnson for referrin^r
the suliject to the arbitration of the President of the
S.viss Confederation had been rejected by the Senate
of the United States, not on account of any objection
to the particular arbitrator, but for other considera-
tions.

There is good cause for the suggestion of Lord ISIW-
ton that the Senate of the United vStates considered
our " right to the disputed territory so extremely clear
that it ought not to be submitted to arl)itration."
That, indeed, is the tenor of Senator Howard's speech
on the subject, the publication of which was author-
ized by the Senate. Such a view of a question of
right may be admissible on the part of a private in-
dividual, who, in a clear case, may prefer a suit at law
in the courts of his country to a'bitration; but it is

TIIH NUUTIIWKSTKUN IJOUNDAUY - LINK. '20o

^\']\o\]y iiia])])lioHblo to iiution.s, wliicli, if thoy oan not
agree mid ^vill not arbitrate, have no re.sourco left
save wai*.

But this was not the only consideration -wliich in-
duced tlic Senate to refuse its assent to tliat treaty.
TLero were objections to tlie/cr//i of submission.

IHSTOliY or TllF. CiUKSTlON.

The controversy to uliicli tliesc treaties refer is one
of tlie leavings of the last war between the UniU'il
States and Great i^ritain, and l»as its roots far back in
the circumstances of the i)rimitive colonization of
North America by Europeans.

When the K' igs of tlic little island of Britain, in
virtue of some of their sul)jects having coasted along
a part of the Atlantic shores of America, assumed to
concede to the Colonies of Massachusetts and Virginia
grants of tei-ritory extending by parallels of latitude
westwai'd to the Pacific Ocean, and covering the un-
explored inunensity of the Continent, and on tlie prem-
ises of sovereignty and jurisdiction as good as their
title to the manor of East Greenwich in Kent, — it
was only men's universal ignorance of geography
which saved the act from the imputation of wikl ex-
travagance.

But such grants, and the pretensions on wliich they
were founded, were the logical consequence of the
theories of colonization and conquest' pursued in the
New World by S])ain, Portugal, and France, as Avell
as England, and formed the basis of the power of;
Great Britain in North America, and eventually of

20G TiiK tui:aty of Washington.

tliat of tlic United State?^. It was tlic assumption
that discovery by any European State, followed by
occupation on the sea-coast, carried the possessions
of such State indefinitely landward until they met
the possessions of some other European State.

At the same time, France had entered into America
bv the waters of the St. Lawrence, had ascended that
river to the Lakes, had then descended by the iSIissis-
sipi>i to the site of the future New Orleans, and had
tluis laid the foundation of a title not only to the ex-
plored territories watered by the St. Lawrence or in
front of it on tlic sea-coast, but also to undefined, be-
cause unknuv.n, regions beyond the jNIississippi,

• Hence arose tlie first great questions of boundary
in North America, tliose between England, France,
and Spain, wliicli were settled by the Peace of Utrecht.
France retained possession of the territories on the
St. Lawrence and the ^lississippi; wdiilst England
retained her country of Iludson^s J5ay and her Prov-
inces on the Atlantic coast, and acquired Nova Scotia
and Newfoundland. [Treaty of Utrecht, March 31-
Aprilll,iri.'l]

. Subsequently, the fortunes of war made England
mistress of tlie Canadian and coast establishments of
France, leaving to tlio latter only the territory beyond
the ^lisslssippi. [Treaty of Fontainebleau, Nov. 3,
1702, and Treaty of Paris, Feb. 10, 17G3.]

^leanwhile, Spain continued, willi but brief inter-
ru])tion, in undisputed sovereignty of the two Floridas,
and of the vast provinces of New Spain, of undefined
extension west and noi-th toward the Pacific.

THE NOHTIIWESTEUN BOUNDARY -LINE. 207

Thus, when the Tliirtecn Colonies obtaineel inde-
pendence, and treated for the partition between tlieni
and (ireat Britain of the British empire in America,
eacli took the part of wliich they respectively held
constructive jurisiliction, according to its recognized
limits in time of peace, — that is to say, Great Britain
retained for lierself the territoi'ies which she had con-
qnered from France, and relincpiished to the Thirteen
Colonies all the territory which she had theretofore
claimed as hers against France by title of colonization
and possession.

The new R«'pnblic thus became the sovereign of a
magnificent territory regarded in the comparison with
European st Jidards of magnitude, and also of intrin-
sic value r jd resources unsurpassed by the posses-
sions of any European State.

But, even with such limits, we felt cribbed and con-
fined from the first: for the statesmen of the United
States had clear perception not only of what "sve pos-
sessed as territoiy, but also of what we needed to
possess in order to be a first-rate Power in America.

We found ourselves blocked in on the North by
the British possessions, which also oversluidowed us,
on the East, and which were at that time of sutlicient
relative strength to constitute an object of solicitude
to u.s so long as they remained in the hands of Great
Britain.

"Westward, we Averc hemmed in along the ^Missis-
sippi by the French, who also held the njouths of
that I'iver, and baiTed us from access to the sea in
that direction.

OQy THE TliKATY OF WASHINGTOX.

On tlie South, Spain sliiit us up on the side of the
Gulf of Mexico.

It was ini])ossi])le in this state of tilings that the
United States could attain the development to Avhieh,
in other res])eets, they had the right to as2)ire, Ijy rea-
son of the fertility of their soil, tlieir numerous rivei's,
and their eonnnanding position in the temperate zone
of America.

But the cession of Louisiana to the United States
by the voluntary act of France, — the most splendid
concession ever made by one nation to another, — jn'o-
duced a revolution in the condition of America. We
thus ac(piired territory of indefinite limits westward,
with such limits on the south as the j)retensions of
S])ain woidd allow, an<l witli limits north only where
sui)erior claim of right on the part of Great Britain
intervened, namely, tlie parallel of forty-nine degrees
established between Fi'ance and Great Britain by the
Treaty of Utrecht.

President Jefierson lost no time in asserting the
rights of the United States in the interior of the
Union, and at the same time acquiring knowledge of
the CGuntiy'' by means of tiie celebrated expedition of
Lewis and Clark. Theretofore the only knowledge
we possessed of the great chain of the Kocky ]\lount*
ains, and of the country or even the name of the coun-
try of Oregon beyond, was founded on the narration
of Jonathan Carver, or other information derived
from the Lidians.

"\Ve were thus enaljled to comprelienu the relation
of Louisiana to the shores of the Pacific, and to see

TIIK KOUTHWKSTEUN BOUNDAUY -LINE. 200

t] at t]ie Iviver Columljia, first entered by Captain Holj-
ert Gray of tlie American ship Coluvihia, of Boston,
in 1792, and named by him, and afterward l)y the
Englisli exj)lorei', Captain Vancouver, was *' tlie great
river of tlie West," the Oregon of Carver.

Tliat coast liad already been ex])lored with nioi'e
or less of diligence by Spanish navigators, fitted out
by the Viceroys of New Spain, wlio gave to many of
the islands, straits, and channels the names they still
retain ; and Spain, if any Power anterior to the Unit-
ed States, had title by discovery in those parts of
America.

But the earliest settlement on that coast was the
factory of Astoria at the mouth of the lliver Colum-
bia, established by John Jacob Astor.

Then came the war between the United States and
Great Britain : the first elTect of which, as to the pi'cs-
ent fpiestion, was the military occupation of Astoria
and of the country on the banks of the Columbia by
British forces : subsequently to which, on the conclu-
sion of peace, although Astoria was surrendered to us
in obedience to the stipulations of the Treaty of Ghent,
yet Great ]5ritain set up claim to the valley of the
Columbia as against the United States, and, indeed,
to all the country intervening between the actual oc-
cupations of Spain to the south in Califoi-nia,and those
of Kussia to the north in Sitka.

Claims of Great Britain in tliis rpiarter, with but
weak foundation, had already been asserted against
Spain to the south of the Kiver Columbia.

Controversy on the subject between the United

0

210 Tin: TUKATY OF WASHINGTON.

8tates autl Great Britain was siispendi3d by the Treaty
of October 20, IS 18. By that treaty it was stipula-
ted that from tlie Lake of the "Woods to the " iStony
^lountaius," tlie line of deiiiarkatiuu between tlie pos-
sessions of the two countries in America shouhl l)e
the forty-ninth i)arallel of hititude. westward to the
Stony Mountains.

Tilt' United States mij^ht well liave insisted on pro-
ceodluL,' dm' west fi'om tlie most northwestern point
of the Lake of the Woods, the terminal point in that
direction of the Treaty of Independence, which is
uearer the parallel of 50°; but, in early unsuccessful
negotiations on this subject under President Jeflerson,
wc liad agreed to adopt the 40th parallel, and that
agreement was renewed by the Treaty of 1818, in obc»
dience to the assiuiiption that this line had been es-
tablished by the Treaty of Utrecht.*

* The "Treaty of IVncc ami Amity" between France and
Ejii^land contains tlio following provision [Art. X.] :

"(Juant aux liniites cntro la IJaic do Hudson ct les licux ap-
partenans u la l^'rance, on cwt convcim reciproquenicnt (pi'll
sera nomine incessamment des CommiBsaircs, q\\\ le:i detcr-
niineront dans Ic icrme d'un an: . . . les niemcH Conimissaircs
nuront Ic ponvoir do reglcr pareillctnent les limitcs enlrc les
aulres colonies Franc/aises ct HritannicpicH dans co pays-lA." —
Dumonl, t.viii., pt. 1, p. na2-3:]H.

Mr. Bancroft, misled by Mr. Grccnliow, says of tliis arti-
cle:

"On the Gulf of ]\Icxico, it is certain that Franco claimed to
the Del Xortc. At the northwest, where its collision would
Imvo been witi the jiossessions of iho Company of Hudson's
Bay, no treaty, no connnission, ajipears to have fixed its liin*
its."— liancrolVi* History^ vol. iii.,p, UI3.

THE NOirnnVESTERN BOUNDARY -LINE. 211

It was further pi'ovided^by tlio same treaty that
the country chiimed by either Party westward of the
Stony ^Mountains, with its harbors, bays, and creeks,
and the navigation of all rivers within the same,
should be free and open for the term of ten years to
the vessels, citizens, and subjects of the two Powers :
it beincr understood that this aii^reement should be
without prejudice to any exclusive claim of either, or
to the claim of any other Power.

This treaty, which regulated the occupation of Or-
egon for so many years, although apparently equal on
its face, was very unequal, as Wv"' shall see, in fact, by
reason of the Avhole country being inuuediately over-
run and almost exclusively occupied by the Hudson's
Bay Company.

But the pretensions of the United States received
notable reinforcement through the Treaty between

j\[r. Madison had previously said, as if not perfectly certain
of the iact : o

" Tlicrc is reason to believe that the boundary between Lou-
isiana and ll'.e l>ritish territories north of it was actually fixed
by Connnissioners apjjointed under the Treaty of Utrecht, and
that the boundary was to run from the Lake of the ^yoods
Avcstwardly on latitude 49°." — American IState Topers, Forci^/n
Ajf'airs, vol. iii., p. 00.

The point was settled, however, by inquiries made by ^h'.
i^Ionrou at r^onddu. lie says:

"Conunissaries were accordingly apjtointed who executed
the stipulations of the treaty in establishing the boundaries of
Canada and Louisiana by a line beginning on the Atlantic at
ft capo or ])roniontory in 58° 30' north lafiiiide; thence south-
M-estwardly to the Lake ^listosin ; thence fartiier southwest to
the latitude 40° north, and along that line indefinitely." —
American tSlatc I\tj>cr«, I'orci[fn Aj/'aim^wl iii., p. 07.

wjo TIIK Tin.ATV Ul' WASlIIMiTOX.

^^paiii and the United Status of Fehniary 22, 1810,
by \vLicli tlio tbriiier ceded to tlic latter tlie two
Kloridas, carrying our territory down to the Gulf of
Mexico, and by wliicli also a line of deniarkation was
run between the territories of the respective Parties
M-est of the jMississippi. This line, connnencing on
the Gulf of ]\rexico at the mouth of the Kiver iSabine,
proceeds l)y that river, the Ked Ivivei", and the Arkan-
sas, to its source in latitude 42° north; "and thence
by that parallel of latitude to the South Sea." And
S])aiu expressly ceded to the United States all her
"I'ights, claims, and ])retensions to any territories east
and north of the said line, as thus defined and de-
scribed by the treaty." To the rights, claims, and
jiretensions of the United States on the northwest
coast we could now add those of Spain.

But another pretender to i-ights on that coast now
apiu\\red in the person of Russia, uhose actual occu-
l)ation came down to the parallel of i)4° 40'; and
thereupon it was agreed between llussla and the
United States by Treaty of April 17, 1S24, that the
latter woidd not permit any settlement by its citizens'
on the coast or islands north of that degree, and that
no subjects of t.ic Ibrmer should be permitted to settle
on the coast or islands south of the same degree.
Xeillier GovuJMiment, however, inuh-rtook to make
any cession to the other. Nor was the country south
of the line described as a territory or possession of
the United States.

During the next year, llussia and Great Britain
concluded a treaty for the demarkatiou of the limits

Tin: NUll'niWKSTKItX HOUNDAHV - LINK. 21.')

iK'tu'ccii tliem in tlic sjiino (|imrtt'i' \)y ix liiu; Aylilcli,
beginning in 54° 40' at the southernmost point of
Prince of Wales Island, was made to run oblicjuely to
strike the main-land at latitude ;jG°, and then to pro-
ceed parallel to the "windings of the coast at the dis-
tance of not exceedinir ten marine leairues therefi'om
along the sunnnit of the coast mountains to its inter-
section Avitli the 141st degree of longitude at ]\Iount
Sb. Elias, and thence due north along that meridian to
the Frozen Ocean.

It has been too nnich the j)ractic(^ of I'ritlsh na\'i-
gators and Jiritish map-makers to alllx i'higlish names
to places previously visited and named Ijy other
Europeans, and to found thereon claims of discov-
eiy. Kuglish nanus are scattered along the coast of
Ivussian America, — such as Cook's Inlet, Prince Wil-
liam Sound, King George III. Archi|)elago, Prince
of Wales Archipelago; — but no British claims of
l)rior exploration could prevail here against the
claiins of possession as well as discovery presented
Jjy liussia.

In this treaty, each Government speaks as the ]")ro-
prietor and sovereign of the respective teiTitories ;
and it is this treaty which defines and marks out the
Territoiy t)f Alaskn, as now held l)y the Unit<'^^. olates
under ivcent cession from Kussi/i.

hi this condition stood the title. for more than
twenty years: the United States claiming from the
latitude of 42° to that of 54'' 40', in virtue, first, of
their own discoveries and settlement, and of the right
of the extension of Louisiana until it should reach the

214: TIIK Tin: AT V OF WASHINGTON.

ocean or some recognized i)osscssioii of another Power,
and, secondly, in virtue of tlie discoveries and I'iglits
of extension of Spain; and Great Britain claiming in
virtue of discovery and possession, and of rights of ex-
tension of her actual admitted j)ossessions in America.

Tims we arrive at the cpiestion of what her actual
admitted possessions were: which is the key to the
Treaty of June 15, 184(5, the interi)retation of which
was referred to the Emjieror of Germany.

On the restoration of Charles II,, j)i'ojects of colo-
nization and of remote conniiercial or speculative en-
ter])rises, which had been suspended in England dur-
ing the Civil War, began to be resumed with new
zeal, comprehending as well the Elist as the AVest
Imlies.

Among the great territorial charters of tliat day,
one of the most interesting is that of the Hudson's
Bay Company, l)y which the King granted to sundry
persons, including the Prince I\U])ert, the Duke of
Albemarle, the Eail of Craven, l>.ord Arlington, Lord
Ashley, Sir John Bobinson, Sir Edward llungerford^
and others | in part, it will be perceived, the same per-
sons wlio obtained a grant of the two Carolinas],

"Tlio sole trade and commerce of all tliosc seas, straits, bays,
rivers, lak^s, creeks, and sounds, in Avliatsoevcr latitude tlicy
shall lie, tliat lie -w itliin tlic entrance of tlie straits coninionly
called Hudson's Straits, to!j;etlier with all the lands and tcrli-
tories upon tlic countries, coasts, and contines of the seas, bays,
lakes, rivers, creeks, and sounds aforesaid, that are not already
actually possessed by or granted to any of our subjects, or
possessed by the subjects of any other Christian Trince or
►State, with tlic fishing of all sorts of lish, whales, sturgeons, and

THE NOllTinVESTKHN IJOUNDAKY -LINE. 21 r>

all Other royal fislics in the seas, bays, inlets, and rivers within
tlic ])rcniises and the fish therein taken, together Avith tlic roy-
alty of the sea upon tlie coasts within the limits atbrosaid, and
all mines royal, as well discovered as not discovered, of gold,
silver, gems, and precious stones, to he found or discovered
within the territories, limits, and places aforesaid, and that the
said land be from henceforth reckoned and reputed as one of our
Plantations or Colonics in America, called 'Kupcrt's Land.'"

Tliii^ concession was induced, as the preamble of
the r^arter sets tbrtb, by the reason that the parties

" Have, at their own great cost and charges, undertaken an
expedition for Hudson's Uay, in the nortlnccsl part of America,
for the discovery of a new passage to the South Sea, and for
the finding some trade for furs, minerals, and other considerable
commodilics, and by such their undertaking have already made
such discoveries as do encourage them to proceed farther in
pursuance of their said designs, by means wliereof there may
probably arise ve»y great advantage to' us and our Kingdom."

The Company's Cliartcr, in common with otliers of
tliat period, conveyed to them the right to hold tlie
territory granted with all rights and jurisdictions ap-
pertaining thereto, as of the manor of East Green-
wich in Kent ; the Company became lords and pro-
prietors of Kiipert's Land on condition of a yearly
payment to the Crown of " two elks and two black
beavers;" and nolegal impediment existed to the es-
tablishment on Hudson's Bay of a local political gov-
ernment such as existed in IMassachusetts or Virgin-
ia : but, in rellectinf; on the slow growth of the P^rit-
ish Colonies in the more temperate latitudes ot ^oith
America, it will be readily seen that no colonization
could be effected on the frozen and desolate shoi-es
of Hudson's Bay. In effect, the Company very soon

21 G THK THF.ATY OF WASHINGTON.

rcsolveil itst'lf into a more commorcial mulertaking
for trade in the lurs of the vast region in the sj)ace
between Canada or New France and the Arctic Sea,
inhabited only by wandering bands of Indians.

AVhen the great Succession AVar broke out, involv-
ing all Europe, it could not fail to reach America;
for the posses5;ions of three of the four ])rincipal
powers i-ngagod, — France, Great Britain, and Spain,
— ^.occupied alternate points on tlie coast of the At-
lantic. The French, of course, endeavc red to avail
themselves of the opportunity to drive out or to
Aveaken the English on ])oth sides of them, and es-
pecially in Ivuj^ert's Land, which they invaded and
partly comiuered, but restored by the subsequent
Treaty of Utrecht.

After this time, tbe Company, safe in its arctic sol-
itudes, prospered without check lor a century, filling
Eupert's Land with forts and factories, and engross-
ing the fur trade of North America.

Thereupon a rival Company entered tlie field, un-
der the auspices of the Province of Canada, founding
its enterprise on the assertion that Rupert's Land
had only a limited extension south and v:«.»st, to cov-
er no more than the water-shed terminatin<:C <it Ilud-
son's Bay, with no rights or jurisdiction southward
and westward to the great Lakes and the Kocky
Mountains.

After a long and violent controversy, the North-
west Fur Company was by agreement of parties
merged to the Hudson's Bay Company.

The combined influence of the parties interested in

THE XORTinVESTKRN BOUNDARY-LIXK. 217

tlic aggregate Company enabled it to obtain for a
term of years, first in. 1821, and afterward in l8oS,
exelusive rii^iit to trade "with the Indians in certain
parts of Xorth America not belonging to Prince Ku-
l)ert's Land.

The regio.i of conntry thus opened by license ex-
clusively to the Hudson's Bay Company is described
in tlie license of 1S38 as follows:

"Tiic exclusive pilvilepje of tradini; -witli tlio Indians in all
8ueh i>:xrts of North Ainoiica to tlie norllnvard ami to tiio wcst-
■\vaicl ol'tlie lands and territories belonging to the United States
of America as should not ibrni part of any of our provinees in
Xorth America, or of any lands or territories belonging to the
paid United States of America, or to any European Government,
State, or Power."

In so far as these licenses affected only the region
■west and south of Hudson's Bay depending on Lake
A\'innipeg, Lake Atliabasca, the two Slave Lakes, and
other lands east of the Ilocky Mountains, they did
not concern the United States.

But in so far as they aflected the region west of
the Kocky ^Mountains, vsuch a license is in plain viola-
tion of treaties with the United States. Tlic Queen
oTEnMand could cjivc a license in that rejrion to the
Hudson's Bay Company exclusive of (dl other J'JiKjJisli-
men; but she could not give any to exclude citizens
of the United States. That, indeed, the grant does
not profess to do; but, in etfect, it did that and more;
for in tlie hands of the Company it was "a charter
of licensed usurpation and pillage in the whole of
the described region of North America." The Com-
pany established forta or jiosts at every eligible or

218 THE TWEATV OF WASHINGTON.

strategic point Letween tlie moiiiitaius and the sliores
of tlic Pacific; their servants kilh'd the fur-bearing
animals; tlicy cut and cx])ortcd. the tiuiLer; and,
by means of its w.^alth and organization, the Com-
pany mono]K)lized the commerce and the resources
substantially to the exclusion for a long time of the
people of the United States.

But at lenirth some settlements of Americans had
been commenced in Oregon ; and the attention of
Congress was called to the usurpations of the Hud-
son's Bay Company by Mr. Benton, Mr. Linn, and the
■writer of these pages : in conse(|uence of which steps
were taken to put an end to the joint occu])ation of
Oregon. In f-'ct, the Company liad now set up the
most extravagant i)reten.siuns, exaggerating a mere li-
''ense to trade into a grant of proprietorship to the
\>'hole of the immense region south and Avest of Ru-
pert's Land, to the dissatisfaction of the peo])le of
Canada as well as of the United States. For it was
the interest of the Company to retain the whole
country occupied by them in the condition of a mere
hunting-field, and fpiite \ininhabited except by vassal
Indians: while the Canadians desired that it shoufd
be opened to colonization, so as to add to the materi-
al resources and political force of the Canadian Prov-
inces. Parliamentary inquiry into the rights of the
Company was instituted ; it was imperatively instruct-
ed by Sir Edward Bulwer Lytton [afterward Lord
Lytton], Colonial ^Minister [whose dis])atches show
that he was not less eminent as a statesman than as
a poet and a novelist], to desist from all general pre-

THE NORTHWESTERN BOUNDARY -LINE. 210

tensions of proprictorsliip founded upon license to
trade ; its license was revoked ; it was compelled to
yield up Oregon to tbe United States; and it was
iialf- persuaded and Lalf- constrained to sell its cluar-
tered rights to the Canadian Dominion, and to slirink
into comparative insignificance in America.

AVlien the Government of the United States enter-
ed into necrotiations with Great Britain for termina-
ting the joint occupation of Oregon, tlie machinations
of the Hudson's Bay Company were the great disturb-
ing fact which for a long time prevented the conclu-
sion of a treaty and its due execution.

i\Iean while the two Governments, after extraordi-
nary contention, at length arrived at a settlement of
another Ijoundary fpiestion, which had rcmaini;d o])en
ever since the Treaty of Independence, namely, the
boundary -line on the northeast between the British
possessions and the United States [Treaty of Novem-
ber 20,1842].

The duration of the Treaty of 1818 was limited to
ten years. As the expiration of this time approached,
the Amei'can Government ofiered to settle the ques-
tion of Oregon by extending the line of 40° to the
Pacific Ocean, and announced this as "our ultimatum."
The British Government o>>jected that this line would
cut off the southern part of Vancouver s Island. AVe
replied by proposing to yield this part for an equiv-
alent. But it w\as for the interest of the Hudson's
Bay Company, which was in practical possession of the
whole country, to defeat this attempt at settlement,
and it was defeated, and the United States reluctant-

220 TIIK THKATV OF WASHINGTON.

ly Consented to tlie prolongation of the nominal joint
occ'in)ation.

But the discussions in Congress heretofore men-
tioned, and tlie disposition of Americans to settle in
Oregon, had, in 1S12, rendered the joint occupation
intolerahle to the people of the United States, and
the negotiation for settlement was renewed on the
l)remises of the -PJth j)ai'allel. The Ijaleful intluenco
'of tlie Hudson's r)ay Company caused the negotiation
to tli'ag on for the ])eriod of four years; when the
Treaty of 184G was at length concluded, yielding to
Great I^ritain the southernmost extremity of Van-
couver's Island.

It was the question of Vafieouvers Island which
chiefly occupied the succeeding negotiators. To run
the line on the 4*.>th parallel to the sea, and " thence
l)y the Canal de Ilaro and Straits of Fuca to the
ocean," was Lord Aberdeen's proposition to jSIr.
]\IcLane. And the same \inderstanding of the (pies-
tion, — that is, to concede; toGreatBritain "Vancouver's
Island, and nothing else south of latitude 4'J°," — per-
vades the dispatches and debates on both sides. And
on such premises, notwithstanding much opposition
in Congress and out of it, the United States acceded
to these tei-ms as a measure of peace and of concilia-
tion toward Great Britain.

But strife was unexpectedly renewed two years
afterwai-d by Lord Palmerston, or by Lord John Bus-
sell, who had succeeded as Premier to Sir Robert Peel,
and their action has kej)t np dispute on the subject
between the two Governments for more than twenty

THE NOIiTIIWESTEHN BOUNDARY -LINE. 221

years solely on account of pretensions wLIcli or.gLt not
to have been I'aised, and the injustice of which has now
at length been demonstrated by the Award of the
Emperor of Gei'many. If this Award be unwelcome
to the })coj)le of Great Britain, no feeling of unkind-
ness in that respect should be attached by them to
the United States. The Canal de Ilaro was undoubt-
edly intended by the negotiators of the Treaty of
184G as the water-boundary in that quarter: that in-
tention accords with the obvious and only reasonable
signification of the language of the treaty.

THE AWA1{D.

This conclusion is clearly and conclusively proved
in the Memorial presented in the name of the Amer-
ican Government to the Geiman Emperor by the
American Plenipotentiary and Agent, Mr. Geoi'ge
Bancroft, and in his Ke])ly to the Case of Great
Britain.

jMr. Bancroft was pre-eminently fitted for the per-
formance of this duty. Possessing intellectual quali-
ties of a high order, and particular personal estimation
at the Court of Berlin, he enjoyed the advantage of
having been a member of the Cabinet under whose
auspices the Treaty of 184G was negotiated, — of sub-
sequently representing his Government at the Court of
St. James at the time when the present controversy
commenced, — and of being thoroughly master of all
the older diplomatic incidents of the question by his
studies as the historian of the United States. Of the
value of all these qualifications to his Governmcat on

222 Tin: treaty of Washington.

tlic present occasion, -we liave the proof in two most
coinj)lete and most convincing arguments which he
addressed to tlie Emperor of Germany.

The Agent on tlie part of Great Bi-itain was Ad-
miral James C. Prevost, wlio had been tlie Commis-
sioner of liis Government, in association with ^h:
Archibald Cami)belJ, Commissioner of the United
States, for determining and marking the line of bound-
ary ])iescribed by the (reaty, and who, of course, pos-
sessed all the special knowledge recpiisite for tho
preparation of any possi))le argument in HU])port of
the pretensions of (treat Britain.

The Emperor, it appears, referred the arguments on
both sides to three 'experts, Dr. Grimm, Dr. Kiejiert,
and Dr. Goldschmidt, personages among the most
eminent of his subjects in jiu'isprudcncc and in sci-
ence, ui)()n whose report he decided on tho 21st of
October, 1.S72, in the terms of the reference, that tho
claim of ilie United States to have the line drawn
through the Canal do Ilaro is most in accordance
with the true interpretation of tho treaty concluded
on the l^th of June, 1S4G, between Great Britain and
the United States.

"This Award," says the President's i\Iessage of De-
cember 2, 1872, "confirms the United States in their
claim to tlio important archipelago of islands lying
between the* continent and Vancouver's Island, which
for more than twenty-six years [ever since the ratifi-
cation of tho treaty] Great Bi'itain had contested, and
leaves us, for the jird time in the lti)<tonj of the United
States as a nation, without n (picstiou of disputed

THE NOUTIIWESTERN UOUNDARY-LINE. 223

boundary between our territory and the possessions
of Great Britain on tins continent."

In recent debates in the House of Lords, tlie Earl
of Lauderdale criticised the Treaty of Washington
in severe terms, partly on the assuni])tion that the
United States have in reserve new claims respecting
the northwestern boundary-line. He is mistaken.
Nothing remains but cpiestions of hydrography fur
Commissioners to detennine, whicli there is no dilli-
culty in doing; and ari'angements have already been
made ])y tlie two Gov(!rnments for the a])pointment
and oi'ganization of the requisite Commission.

In conclusion, let me say that Great Britain has no
cause to regret the adverse conclusion of this contro-
versy. The conditions of the Treaty of 1 840 involved
positive concession on the part of the United States,
if not as to the general lino, yet in giving n]) the
whole of the Island of Vancouver Avithout any com-
pensation. AVe certainly did not mean at tlie same
time to give np the important island of San Juan, and
various other islands intervening between tliat and
the main-land, which would liave been the effect of
admitting the Straits of Uosario as the water-bound-
ary. AVc knew that ])rior to and during the negotia-
tions the Canal de llaro was expressly mentioned
and always understood as the true channel, corre-
sponding to the desire of the British Government to
seciu'c Vancouver's Island.

To Great Britain it can be of no possible conse-
quence which of the lines uf boundary should be es-
tablished. AVhat possessions remain to her on the

22-i THE TREATY OF WASHINGTON.

iiortliwcst coast of Aincrica, Vancouver's Island and
British Columbia can not ever be of special in)j)or-
tauce to her cither as a military post or as a colony.
Nor can they be of any militanj advantage to tho
Canadian Dominion, and may, on the contrary, con-
stitute in her hands a temptation to needless expense
in fortifications, notwithstanding which, owing to tho
remoteness of those countries by land and tlieir in-
accessibility to her by sea, the Dominion would find
them ([uite untenal)lo in the j)resence of the jiowerful
American States on the shores of the Pa^ilic Ocean.

To the United States, on the other hand, it is im-
j)()rtant to have had the question decided in our favoi*.
Wo are now a real j)osver on the Pacific coast, which
Great 15ritain is not and can not Ije. Holding tho
Territory of Alaska to the north of the British pos-
sessions, the Territory of Washington, the State of
Oregon, and the great and rich State of California
ceded to us by the ^lexican Bepublic, with the grow-
ing States and Territories on their rear, it would have
been to us intolerable to be excluded from the great
channel between Vancouver's Island and the. main-
land, or to traverse it only \uider the guns of British
fortresses on that island. Such a settlement would
liave had in it tho germs of war: the present affords
assurance of stable peace.

lla]ii)ily the United States and Great Britain are
now delivered from the complications in their rela-
tions occasioned by the e2*orbitant power of the Hud-
son's Bay Company. By other provisions of the same
Treaty of 184G, the United States had made to Great

TllK XUUTIIWKSTEUX BOUNDAKY-LINE. 2'2o

Britain tlie concession of recognizing cert.iin preten-
sions of that Company in Oregon and Washington,
founded on mere encroachment, and, in order to be re-
lieved of tliesc pretensions, paying to tlie Company a
small sum in satisfaction of its claims, aljout one tenth
of what was demanded for it in the name of the Brit-
ish Government.

Lord ^lilton expresses the opinion that "On [iji/.sl
aiuU</uit((l>l(; solution of the so-called San Juan Water-
houndavy Q»uestion depends the future, not only of
liritish ColumLia, but also of the entire British ])os-
sessions in North America." By "just and eijuitable
solution" he means, of course, decision in favor of
Great Britain. If the premises are correct, then the
conscfpiences are a fact accomplished. But he over-
estimates the value of the Archipelago of iSan Juan, to
Great Britain. His opinion assumes what is im])ossi-
ble, the acquisition of considerable intrinsic strength
on tlie part of British Columbia, sustained by railroad
connection with th(^ Provinces of Ontario and Quebec.
But what would avail, in a military point of view, a
railroad runniuii; throucjh a thousand miles of com-
paratively uninhabited country within easy reach at
every point to the armies of the United States ? I
think the future of the British possessions in Xorth
America depends on a diflerent oi'der of facts, of which
something will be said in another cha])ter in speak-
ing of the commercial relations of the United States
and the Canadian Dominion.

P

22G * '^^^^ TREATY OF WASHINGTON.

CIIAPTl^U V.

THE FISHKIilES.
IIISTOUY OF TJIK QUESTION.

The Tiieaty of Ixi>Ki'ENi)E\rE was, I rcpont, a vir-
tual partition of the l>riti;^]i Eni])irc in America be-
tween tlic Metropolis and the Tliirtecn United Col-
onies. It was not a treaty Ibunded on military/ pos-
session : for the Colonies had no such possession save
along the coast of the Atlantic Ocean, and Great
Britain occupied several posts north and west of
the Ohio and on the Great Lakes. The theory of the
treaty was to recognize the Colonies as sovereign ac-
cording to their j)olitical limits as fixed by charter
and V)y the public law of J^^ngland.

In conformity with thih theoiy, the treaty stipu-
lates that the United States shall continue in the en-
joyment of the coast fisheries, as follows :

"Article Til. It is agreed that the peojdc oftlte United States
sliall continue to enjoy vuiinolcsted the viglit to take iisli of ev-
ery kind on tlic Grand IJank, and on all the other hanks of Xew-
fuiindland ; also in the (tulf of St. Tiawrence, and at all other
])laces in the sea Avhcre the inhabitants of both eotwitries used
at any time lierctolbre to fish ; and also that the inhabitants of
tlic United States shall have liberty to take fish of every kind
on such part of the coast of Newfoundland as IJritish tishernien
Bhall use [but not to dry or cure the same on that island]; and

Tin: risiiKuiES. 227

nlso on the coasts, Lays, nml creeks of all other of Ills I'.ritannic
]Nrajesty's doininioiis in vVnierica; ami thai the American li^^h-
ennen HJiail have liberty to dry ami cure tish in r>..y of the nn-
tettled bays, harbors, and creeks of Nova Scotia, ]\Iagdalen U\-
ands, and Labrador, soloni^ as the same shall remain unsettled;
bnt so soon as the same or cither of them shall be settled, it
hhall not be lawful for the said fishermen to dry or cure lish at
tljc.said settlement, M'ithout a previous agreement for that i»ur-
l>ose M-ith the inhabitants, proprietors, or possessors of the
ground." *

Notwithstanding tlie absolute terms of tliis trcaty
in regard to tlie (jiiestion of jieace, there survived on
both sides so niucli of irritation, and so many points
of mutual relation remained uncertain, that the treaty
■was in some respects little more than a truce. AVe
had special cause to complain of the persistent occu-
pation of northwestern posts by Great Britain, and its
elYect on^the Indians within our lines. On the other
hand, to say nothing of minor matters, when the wars
of the French Kevolution commenced, and the French
Kepublic undertook to use our ports as the ])ase of
naval operations against Great Britain, the latter
Power took umbrage of course ; and it was only the
firm attachment of President Washington to peace,
which prevented these difficulties from fatally em-
broilini^ the two countries, and which led to the con-
elusion of the Treaty of December 10, 1704, as the
similar spirit of President Grant led to the conclusion
of the Treaty of Washington.

During the next ten years, the United States labor-
ed to maintain their neutrality in the presence of the
universal war by land and sea Avhich i-aged between
the great European Powers. Both France and En-

22S 'i'lIE TUEATV OF WASHINGTON.

glaiul gave to us good cause of runture ; we barely
escaped war Avith PVance in 179S; we were forced
into war with England in 1S12; and in the course
of all these events the hand of the Government was
restrained, if not jiaralyzed, by the factious force of
si///ij>((f/i/c.s in the United States, on the one side for
France and on the other for England. Hence, alike
in the (ji«(sf war^with the former, and the declared
war with the latter, the results as to the United States
were uncertain, imperfect, trivial even, compared with
the great objects which might have been acconqjlish-
ed by united counsels.

On the side of France, however, it must be admit-
ted that our disj)osition to avoid pushing matters to
extremities contributed to gain for us the immense
benefit of the acquisition of Louisiana. ,

Afterward, although the Berlin and jMilan Decrees
of France and the Orders in Council of Great Britain
constituted each alike good cause of war with eithei',
yet the United States held back at vast sacrifice, until
continued assertion of the right to impress seamen on
board of our merchant ships, and, indeed, to visit our
ships-of-war, and other exaggerations of belligerent
right, forced us into war with Great Britain.

The treaty by which that war was concluded is
one of the most unsatisfactory in Lhc annals of the
United States. It was absolutely silent in regard to
all the sjuljjects of controversy which had occasioned
the war. Nothinrc is said of the bellirjerent cncioach-
ments of Great Britain on the neutral ri^chts of tlie
United States, nothing of maritime search, nothing of

THE FISIIEIUES. 220

the impressment of real or pretended Britlsli subjects
on board ships of the United States. And it lett
room, by its silence, for Great Britain to raise ques-
tion of our right to participate in the coast fisheries,
\vhich question, although dealt with from time to time
in successive treaties, has more than once seriously
endangered the peace of the two Governments.

Does war have the elTect of annulling all existing
treaties 1 A general answer to this question is given
by one of the most authoritative of modern publicists
[Calvo] as follows :

"If the treaty of peace modifies anterior treaties, or express-
ly declares the renewal of them, the dispositions of the treaty
of peace arc thereafter to constitute the law; but if no partic-
ular mention is made in this respect, the anterior treaties must
necessarily continue to have full force and effect. In order
that they should be deemed definitively abroijated, it -would
be recpiisite that they shall not only be suspended by tlic war
but annidled in fact, as in the case of treaties of alliance of
which the raison (VCtrc ceases at the end of the war: 't would
bo requisite, indeed, that tlicir contents should bo incompatible
witli the stipulations of the treaty of ))eace, which occuis, fur
e.\an^l)le, in what regards ancient treaties relative to the de-
limitation of frontiers l)etween two States."

The Supreme Court of the United States lays down

the law as follows:

" Wc think that treaties stipulating for permanent rif/Jds and
general arrangements, and professing to aim at peri)ctuity, and
to deal with the case of war as ■well as of ])eace, do not cease
on the occurrence of war, but are, at most, only suspended
while it lasts ; and unless they arc waived by the parties, or
new and repugnant stipulations are made, t/iei/ rcvioe in their
operations at the return of peace." ^

Such has been the received doctrine in the United

230 'f'"' TRKATY OF WASHINGTON.

States, to the clVect tliat war does not, as an aljsolute,
universal rule, abrogate existing treaties, regardless
of tlieir tenor and ])articular contents; and it is the
only doctrine comi^atible witli reason, justice, common*
sense, and tlie diplomatic history of Europe.

But the British Government, in the celebrated dis-
l>atch to ^Ir. Adams of October 30, IS 15, signed by
Lord 15athurst, and understood to be the composition
of ^Ir. Canning, declared the position of Great Britain
to be : " She knows no exception to the rule that all
treaties are p\it an end to by a subsequent war be-
tween the same parties." This proposition, in its nb-
soluteness of ex})ression, if it is intended as an .asser-
tion of any established practice of nations, jr any rec-
ognized doctrine of the law of nations, is unfounded
and unauthorized. Many treaties are made precisely
for the case of war, and only become cflicacious in
virtue of the existence of wai*. The assej'tion of Lord
I>athurst is altogether too broad, as Dr. Bluntschli
demonstrates.

Xeverthcless,acting on such extreme premises, Great
Britain pretended that our riglits of fisliery had been
abrogated by the wai", and were not revived l)y peace;
and that this effect was the true interpretation of the
omission to mention the sul)ject in the Treaty of
Ghent.

Tiie Conunissloners of the United States who ne-
gotiated the Treaty of Glient Avei'e men of unques-
tionable patriotism and of the highest character and
intelligence: it would be out of jdace hero to reopen
the dispute as to certain special causes of the failure

THE FISHERIES. 231

of the Commissi )ners to secure in that treaty recog-
nition of the fishery 1-ights of the United States. But
it is due to tlie memory of the American Conniiission-
ers, and especially to ]\Ir. Gallatin, ]\Ir. Adams, and
]\Ir. Bayard, to say that, in all the negotiation at (Ihent,
they and their associates were hamj^ered by the dis-
couraged state of mind of the American Government,
embarrassed, as it .was, by political difficulties at
heme, and alarmed, if not terrified, by the triumph of
Great B''itain in Spain and France, and the total over-
throw of Napoleon, which seemed to leave the Brit-
ish Government free to dispatch overwhelming forces
of sea and land against the United States.

The autunui siibsequent to those events was the
darkest period in the history cf the country. Noth-
ing but the shock produced- by the great change in
the whole face of aifaii"s in Europe could have extort-
ed from the American Government those final instruc-
tions to our Conunissioners, wliich authorized them
to a""ree to the sf((li(.^ tjtio ante bclhnii as tlie basis of
negotiation, — Mdiich spoke of our right to the fisheries,
and of our fi/reign commerce, in crpiivocal terms, —
and wliich, indeed, left tlie Commissioners free to con-
clude such a treaty as tlieir own judgment should
approve under existing ch'cumstances, ])rovided only
they saved the rights of the United States as an inde-
pendent nation.

How difterent might and would have been those
instructions, had the Government but struggled on a
little lonf^er a^^ainst the adverse circumstances of the
hour I Courage and procrastination would have made

232 THE TUKATY OF WASHINGTON.

US master.^ of the situation, aud euabled us to dictate
tonus to Great Britain.

Keniember that the Treaty of Ghent was signed on
the 24th of December, 1S14, and that the disastrous
defeat of the British forces attacking New Orleans oc-
cui-red a tbrtniglit afterward, on the 8th of January,
LSI 5. This event, if tlie negotiation at Ghent had
remained open, could not but have strengthened the
American (Jovernment; and, two months later, all
the dlflicultics in its path would have been removed
l)y the landing of Napoleon at Golf Jouan []\[arch 1,
IS 15] and the renewal of the war in Europe.

But the pretension of Great Britain, that the war
had abrogated any part of the Treaty of Indepen-
dence, was evidently untenable; and the justice of
the cause of the United States was so manifest that,
after three or four years of discussion, the Bi'itish
Government agreed to the express recognition of oiu*
fishery rights as follows [Treaty of October 20,1818]:

"Wlicrcas (liilVrciiccs li.ivo arisen respecting; tlic lil)orty
claimed by tlic United States, for the inhabitants thereof, to
take, dry, and cure iisli on certain coasts, bays, liarbors, and
creeks of His IJritannic ]\I;ijesty's dominions in America, it is
agreed between the higli contracting ])arties tliat tlic inhabit-
ants of the said United States tiha'd liavc, forever, in connnon
•with the subjects of His IJritamiic ^Majesty, tlic liberty to take
fish of every kind on that ])art of the sonthcrn coast of New-
foundland which extends from Cape Kay to the IJamcau Isl-
ands, on the western and northern coast of Xewfoundland
from the said Capo I{ay to the Quirpon Islands, on llio shores
of the ]\Iagdalen Islands, and also on the coasts, bays, harbors,
and creeks from iMount .Toly, on the southern coast of Labra-
dor, to and throush the Straits of Ucllcislc, and thence north-

THE FISIIEKIES. 233

waixlly iuJofiiiitoly along tlio coast, -vvltliout prcjiuVico, liow-
ever, to any ot'tlic cxclnsivc riglUs of tlic lliulson's Day Coni-
])any. And that the American fishermen shall also have lib-
erty, forever, to dry and cure lish in any of the unsettled bays,
liarbors, and creeks of the southern part of the coast of New-
foundland, Iiereabovc described, and of the coast of Labrador;
\nv, so soon as the same, or any ]>ortion thereof, shall l)e settled,
it shall not be lawful for the said fishermen to dry or cure tish
at such portion so settled, -without iircvious agreement for such
juirposc with the inhabitants, proprietors, or jiossessors of the
ground. And the United States hereby renounce, forever, any
liberty heretofore enjoyed or claimed by the inhabitants tiiere-
of to take, dry, oi' cure fish on or williin three marine miles
of any of the coasts, bays, creeks, or harbors of His Ibitannio
^lajesty's dominions in America, not included within the above-
mentioned limits : IVovided, however, that the American fisher-
men shall be ])ermitted to enter such bays or harbors for the
jiurposc of shelter and of repairing damages therein, of purchas-
ing wood, and of obtaining water, and for no other purpose
whatever. But they shall be under such rcs'rictions as may
be necessary to prevent their taking, dvyiiicr, or curing fisli
therein, or in any other manner whatever abusing the ]uivi-
legca hereby reserved to them."

In virtue of tliese treaty provisions, citizens of tlie
United States continued to fish on the coasts of the
Britisli Provinces witlioiit interru])tion for some twen-
ty years, when question was raised as to their riglit
to fisli within the bays or indents of tlie coast, in
consequence of an opinion of the Law Officej-j of tlic
Crown tliat the expression " three marine miles of
any of the coasts, bays, creeks, or harbors," witliin
whicli citizens of tlie United States were excluded
from any right of fishing on the coast of British Anier-
ica,intends miles "to be measured from the headlands,
or extreme points of land next the sea or the coast, or

231 Tin: tkkatv oi- Washington.

of tlie entrance of Lays or indents of tlie const," a;ad
that, consnjiK'nlly, American iislicrnien liad no riglit
to enter bays, there to take fish, although tlie fishing
might be at a greater distance than three miles from
the sliure of the bay.

This (»])inion,be it observed, maki'S no distinction
between close bays and ojien ones, lavge indents of
the coast and small ones, and, if carried into elVect by
the l)iitisli Government. Mould exclude citizens of the
United States from a large jiart of the produetfve fish-
inggrounds on the coast of Uritish America,

Xo\v, strange to say, this opinion of the Law OAicer;*
of tlie Crown is based on a mere blunder of theirs,
or, to say the least, on a iietion, or a bald interi)olation.

After stating their conclusion, they assign, as the
sole reason of it :

*' Ah [llint is, bccaitsc] we nro of oitinioii that llic tcnii ' lu'.'ul-
laiid ' is iisoil ill llie trcUy to I'xpiVhs llio pari of tlio luiul
wo liavc licforo incnlionetl, including ti)e interior of llic bays
and the indents of the coasts."

It is not true that "tlie term 'headland' is used in
tlie treaty to express the i)art of the land we have
])i'fore mentioned.''

Neither the term "headhnnd" nor any word of simi-
lar signification is to be found in the treaty. Tlic
Law Gflicers of the Crown undertook to construe the
treaty without reading it, and by this presumptuous
carelessness caused the British Crovernment to initi-
ate a series of measures of a semi-hostile character,
which came veiy near producing another war be-
tween Great Britain and the United States.

THE I'ISIIEHIKS. 23'}

It may 1)0 ([uite ailmisslljlc for tlio British (lov-
crnniL'iit, as they arc accustomed to do, to throw
ulf all their resj)oiislb\lities on the "Law OtUccrs
of the Crown," when the question is one of mere
domestic I'dation ; but it is dangerous for that
Government to do so in matters alfectiug other Gov-
ermnents.

Wc have already had occasion to comment on the
very extraordinary circumstances attending the fail-
lire of the Law OAleers of the Crown to report upon
the case of the ^'l/(^/'(//y^cr, and its disastrous iuilueucc
on the conduct of the Government.

As to the opinion of the " Law OHlcers of the
Crown " in construction of the fishery clauses of the
treaty of 181S, it is diihcult to say which pro-luccd
the more amusement or amazement in the United
States, the fact that the "Law Ofllcers" should inter-
polate a phrase into the treaty in order to give to
their o])inion its sole foundation to stand upon, or
that the British Government should placidly accept
such fallacious and baseless reasoning without chal-
lenge, and proceed in obedience to it to enter into hos-
tile maritime operations, and hurry on to the vei'ge
of war a!]:ainst the United States.

After much agitation and discussion, however, the
question was settled for the time being by articles
of the Treaty of Septendjer 0, 1854, commonly called
the lleciprocity Treaty, as follows :

"Article I. It is agreed by tlic liigli contracting Parties tliat,
in addition to tlic liberty secured to the United States lislierni. n
by tlic above-mentioned Convention of October 20,1818, of

/

23G TIIK TUKATV OK WASHINGTON.

takinu:, ouriiii;, and drying' fisli on certain coasts of the Ilritish
Xortli Anu'iicaM Colonics tlicrciu dctincd, the inhabitants of
the I'nitcd Slates shall liave, in comtnon ■with the subjects
of Her llritannic Majesty, the liberty to take lisli of every kind,
cxcei)t .shcll-lith, on the sea-coasts and sliores, and in the bays,
liarbors, and creeks of Canada, New JJrunswick, Nova Scotia,
Prince I'Mward's Ishuid, an I of tlie several islands thereunto
adjacent [and, by another article, Xewfoundlandj, without bc-
ini; restricted to any distance from the sliore, -vvitli permission
to land njion the coasts and sliores of those Colonies and the
islands thereof, and also upon the I\Ia<,'dalen Islands, for the
juirposo of dryini,' their nets and ciirint; tlieir fish; jirovided
that, in so doini;, they do not interfere with the ri«,'hts of pri-
vate j)roperty, or with IJritish ilhhermen In the peaceable fiso
of any part of the name coast in their occupancy for the same
purpose.

•"It is understood that the abovc-inenlloned liberty applies
solely to the sea-lishery, and that the salmon and shad fisheries,
and all fisheries in rivers and the mouths of rivers, are liereby
reserved exclusively for Jbilish fishermen."

Similar provision was made in Article II., vvitli \\]'o
c.xcoption, lor the adniisyiou of British subjects to
take fish on a part of the sea-coasts and shores of the
United States.

It Avas further agreed that Commissioners should
be appointed, who shall

" Kxamine the coasts of the Xorth American provinces and
of the United States embraced within the provisions of the
first and second articles of this treaty, and shall designate the
l)laccs reserved l>y the said articles from the common right of
fishing therein."

But these provisions were temporary only, being
subject to be terminated on a year's notice, after the
expiration of ten years, and the treaty was in fact

iilM>WMMMMiMUHailiiiiliii(&>

TIIK FISHERIES. 237

dcnoiincc'd on the ITtli of i\[arcli, 18G5, and expired
on tlio iVth of Mai -li, 180G.

In truth, tlie United States liad piircliafied tLe fisli-
ery provisions of this treaty Ly otlier provisions to
the ellect that certain enumerated articles of the
growtli and produce of the British Colonies of Cana-
da, New Brunswick, Nova Scotia, Prince Edward's
Island, and Newfoundland, or of the United States,
.^houkl Ijc "admitted into each country res])eclively
free of duty."

r>{d the reclprociti/ here was nearly nominal, the .
great henellts of the })rovision inuring to the British
Colonies. The fisheries had come to be the incident
of a lai'ger question, namely, that of the terms of com-
mercial intercourse between the United States and
the Jiritish Colonies in North America.

Dissatisfaction in the United States Avith this state
of things led to the denouncement of the treaty, and
to the revival of a controversy l)etween the two (rov-
crnments regai'ding the fisheries: which controversy
was terminated Ly the Treaty of AVashingtou.

PRO VISIONS OF THE TREATY OF WASHINGTON.

By Articles XVIIL, XIX., and XX., the fishery
stipulations of the Treaty of September 0, 1854, are \
in substance revived, with further provision for the
appointment of a Commission to settle any outstand-
ing question as to the " places " of fishery reserved by /
either Government.

It is further agreed that fish - oil and fish of all
kinds, except fish of the inland lakes and of the riv-

23S 'i'lH' TKKATV OF WASlIINUTv)N.

CVS falling into tlK'in,and except fish preserved iu oil,
Leing the i)n)(liie(! of the fisheries of the United
^States, or of the Dopiinion of Canada, or of Prince
Edward's Island, shall be admitted in each country
respectively free of duty.
Then follows:

"^Vrticle XXII. Iii.isniuch ns it is nsscrtcd l)y llic Govcrii-
incnt of Ilcr liritaiinic .Al.'ijcsty that lite ]nivilcgcs acronk-d
to till' citiziMis of liio Unitfd States under Article XVIII. of
lliis Tieaty are of -jfreater value than those accorded hy Arti-
cles XIX. and XXI. of this Treaty to the subjects of Her Uri-
taimic Majesty, and tliis assertion is not admitted b>^ the (lov-
erinnent of the United Stales, it is further aj^reed that Com-
missioners shall he ai)]iointed to determine, having re^^'aiil to
the ])rivileges accorded by the United Stales to the subjects
of Her r.ritannic ^lajesty, as stated in iVrlieles XIX. and XXI.
of this Treaty, the amount of any compensation >vhieh,in their
opinion, ou^ht to bo paid by the (Jovcrnmcnt of llie I'nited
Stalr-s to the (iovcrnm'ent of Her IJritannic Majesty in return
for the privileges accorded to the citizens of the United Stales
under Article XVIII. of this Treaty ; and that any sum of
money uhich the said Commissioners may so award sliall be
]>aiil by the United States (iovcrnment, in .1 giOss sum, wilhiu
twelve months after such Award shall have been given."

The Commissioners referred to in this article arc
to be appointed, one by each of the two Govern-
ments, and the third by the two Governments con-
jointly, or, in case of disagreement between them, by
the ^Minister at London of the Emperor of Austria
and Hungary. The Commission is to sit at Halifax,
in the Province of Nova Scotia.

AVith this i)rovision ends the list of Govcniineuts
concerned in this truly international Treaty, Avhich, iu
the interests of peace, engages the co-operatiou of

TIIK FISIIHUIKS. 230

eight sovcivigii States, iianiely, Italy, Switzerlaiul,
Brazil, Swctleii and Norway, Spain, Austria and
Hungary, Great Britain, and the United States.

riiOHABLE AMOUNT OF INDKMNITV.

The peculiarity of the arrangement, we see, is that
the United States are to make compensation to Gi-eat
Britain for any excess in V(dae of the privileges of
fishery accorded to the United States above tho^e
accorded to Great Britain. One party asserts, the
other denies, such excess of value.

This cpiestion involves examination of facts, but -it
also suggests in([uiiy of right.

AVhat are the privileges which the United States
acfpiire under Article XVIII. of the Treaty of Wash-
ington ? Certiiinly not any which they possessed al-
ready.

Now, in virtue of subsisting stipulations of the
Treaty of 1818, we possessed the recognized right of
fishery along the coasts, and in the bays, harbors, and
creeks of British North America, subject, in so far as
regards the present question, only to the renunciation
which we made in that treaty of the liberty previ-
ously enjoyetl or claimed, to take, dry, or cure fish on
or withifi tlwce marine miles of the coasts, bays,
creeks, or liarbors of certain defined 2?arfs of the
shores of British America. The Treaty of Washing-
ton removes this limitation. Hereafter we are to
fish on the sea-coasts and shores, and in the bays,
harbors, and creeks, previously subject to limitition
of three marine miles, " without being restricted to

/

N

240 Tin: ti{i:atv of Washington.

any distance from tlie sliore." But we are not re-
quired to pay for any relinqui^sliinent ou tljc part of
(treat Britain of the fictitious claim founded on the
erroneous oj)inion of tlie Law OlTicers of the Crown,
whicli, on tlie false as8um})tion that "headlands" are
mentioned in the Treaty of 1S18, extends an imagi-
nary line seaward three marine miles from each cape
of bays and indents of the caast, joins the extremities
of those two lines by a straight line, and then re-
quires our iishermen to keep outside of this connect-
ing line. Deluded by that opinion, the British Gov-
ernment, indeed, absurdly undertook to exclude us
by force from the Bay of Fundy, but failed to main-
tain its pretension in that respect.

What we purchase is the right to enter and fish with-
in the three marine miles of the t<IiO?'es at the bottom
r>f' certain haifujia rhors^ and creehH (from which alone
we were excluded by the Treaty of 1818), disregard-
ing wholly the opinion of the Law Otlicers of the
Crown. Looking at the clause under consideration,
in this its only proper light, it is plain that it can
not impose any serious chai'ge on the United States.

COMMEUCIAL I^'Tt:UC0Ull5E AND TBANSrORTATION. 211

CHAPTER VI.

CO^^DIERCIAL INTERCOURSE AND TRANSPOR-
TATION.

TREATY I'UOVISIOXS.

Sundry stipulations of tlic Treaty wliicli relate to
rights of navigation, and of transport by land or water,
— to concessions of commercial intercourse and trans-
it,— or to the free interchange of objects of produc-
tion,— are divisible into, first, jn'rinanent i)rovisions,
and, secondly, temporary ])rovisionH.

1. Of permanent provisions Ave have the folluwing:

[r/] Great Britain engages that the navigation of
the lliver St. Lawrence, ascending and descending,
from the point where it ceases to foi'm the boundaiy
between the two countries, shall forever remain free
and open for the purpose of conu)ierce to the citizens
of the United States [Art. XXVI.]. .

The United States encrafre tliat the Rivers Yukon,
Porcupine, and Stikinc, in Alaska, ascending and de-
scending from, to, and into the sea, shall forever re-
main free and open for the pui'pose of commerce to
the subjects of Great Britain [Art. XXVI.].

Rights of local police and regulation are reserved
by each Government.

l_b\ The United States engage that the subjects

• Q

242 Till-: TKKATY OV WASHINGTON'.

of Great Britain sliall eiij<^y tlic use of tlic St. Clair
Flats' Canal on tcnn^ of cM^nality with the inhabitants
of the Tnitcd lState^> [Art. XXVlI.].

\r\ The United States enirage to urge on the State
Ciovei'nnicnts, and (Jrcat Britain en<:a<'e.s to in'ire on
the Dominion of Canada, to secnre eaeli to the .snl>
jects or citizens of the other the use on equal terms
of the several canals connected with the lakes or riv-
ers traversed Ly or contiguous to the l)Oundary-lino
between the ])ossessions of tlie high contracting Par* •
ties [Art. XXVII.].

All thtse are provisions "which bring the United
States and the; Domiiiion of Canada into fixed rela-
tions independent of and superior to all questions of
Gorc-rnmenf.s'.

2. Of temporary provisions we have the following:

{((] Tiie navigation of Lake ^Michigan is declared
free and open for the purposes of commerce to the
subjects of (ireat Britain [Art. XXVIII.].

\/>\ (toods, wares, and merchandise arriving at the
ports of Xew York, Boston, Portland, or such other
ports as the President may designate, and destined
for the British possessions in Xorth America, may be
entered at the j)ro]ier custom-house without ]>ayment
of duties, and conveyed in transit through the terri-
tory of the United States [Art. XXIX.].

And, in like manner, goods, wares, and merchandise
arriving at any of the ports of the Britisli possessions
in Xorth America, and destined for the United States, •
may be entered at the proper custom - house, and
conveyed in transit without the payment of dnties

COMMF.UCIAL INTIiUCOUKSE AND TRANSrOKTATION. 2.^3

tlirougli the said possessions; and goods, "wares, and
nieroliandise may be conveyed in transit witliout pay-
ment of duties, from tlie United States tliroiigli the
said possessions to otlier places in the United States,
or for export fi'om jiorts in the said possessions [Ait.
XXIX.|.

All these rights of transit are, of course, subject to
such regulations for the protection of the revenue as
the resj)cctive Governments may pi'escri))e.

[<■•] Great Britain engages to urge on the Dominion
of Canada and the Province of New Brunswick that
no export duty or other duty shall be levied on tim-
ber cut in that part of the American territory in the
State of ]\Iainc watered l)y the liiver St. John and its
tributaries, and iloated down that river to the sea,
when the same is shipped to the United States {y^mi
the Province of New l)runswick.

[^/] Subjects of Great Britain may carry in British
vessels, without payment of duty, goods, Avares, or
merchandise fi'om one port or place within the terri-
tory of the United States upon the St. Lawrence, the
Great Lakes, and the rivers connecting the same, to
another port or place within the territory of the
United States, provided that a portion of such trans-
portation is made through the Dominion of Canada
by land carriage and in bond [Art. XXX.].

Citizens of the United States may carry in United
States vessels goods, Avares, or nuTchandise from one
port or place within the British possessions in North
America to another port or place within the said
jiossessions, pi-ovided that a portion of such transpor-

MBiaiL'

04.^ TIIK TUKATY Or WASHINGTON.

tat Ion is made tlirougli tlic tcMTitory of tlic Uuited
States by land carriage and in Iwnd [Art. XXX.].

The United States engage not to impose any export
dnties on goods, wares, or mercliandise carried under
this article through the territory of the United
States; and (ireat Britain engages to urge the Do-
minion of Canada and the other British Colonies not
to impose any export duty on goods, -wares, or mer-
chandise carried under this article.

It heing v.nderstood that these respective rights of
transit are to he regidated hy the two Governments;
and tliat on the part of the United States the right
of transit will he sus])ended unless the Dominion of
Canada should establish the ('xomj>tion from export
duties required, and uidess the Dominion shall open
its canals on (Mpial terms to citizens of the United
States, and ludess the Dominion and the Province of
X\'W Brunswick shall free from all duties the tindjcr
cut on the St. John in the State of Maine and exi)ort-
ed to the United States [Arts. XXX. and XXXI.].

All the ])rovisions of the Ti'eaty from Articles
XVIII. to XXI. inclusive, and Article XXX.,— that is
to say, the articles regarding the fisheries and j'cclp-
rocal right of transit, — are to take oifect so soon as the
laws reijulred to cany them into operation shall have
been ]>assed by th(^ Parliament of (Jreat Pirltaln, by
that of Canada, and by the Legislature of Pj'ince Kd-
ward's Island, on the one liand, and ]»y the Congress
of the United States on the other.

Such assent having been given, such articles shall
remain in force Ibr the period of ten years from the

^i^tmt/UUttmiiililink

COMMKRCIAL INTERCOURSE AND TRANSPORTATION. 245

diiUt at wliicli they may come into operation, and fur-
ther until the exjiiration of two years after either of
the Parties sliall liave given to tlie other notice of its
desire to tenninate the same: -svliich either may give
at tlie end of tlie said ten years or at any time after-
ward [Art.XXXIII.].

Temporary as tliese ])rovisions are, or at least ter-
minable at the will of either Party, they are cfpiitable
in themselves, and advantageous Loth to the United
States and the Canadian Dominion ; and, like the
permanent provisions of the Treaty explained in this
chapter, they tend to draw the two countries closer
and closer together.

The germ of the Treaty of Washington, it is to be
remembered, was the suggestion of the British Gov-
ernment throuiili Sir John Kose, ft former Canadian
i\linistcr, whose proposal related oidy to ])ending
([Uestions all'ecting the I»ritisli jiossessions in North
America, not (ireat Britain herself.

What these questions were we partly understand by
the stipulations of the Treaty, the ^vhole of which, ex-
ce])t those growing out of incidents of the late Civil
War, are of interest to Canada, including the maritime
Provinces ])rimarily if not ext'lusively, although re-
quiring to bo treated in the name of (ii'eat Hritain.

To tlie arrangements actually made, Canada would
jiave preferred, of course, revival of the I^lgin-Marcy
Bcciprocity Treaty, involving the; admission into each
country, free of duty, of numerous articles, being the
growth and produce of the British Colonies or of the
United States. It was the desire of Canada to have

•Jli; Tin; Tlil.ATV ok WASIIINliTOX.

]>r()vi>l()n nmdc lor uUcl^ciI claiiiis on nccoiint of tlic
acts of lli(.' l'\'niaiis. iJut tlic L'nitt'd States would
Hut llslt'ii to L>itliL'i' of these proj)o.sitlons : so tliat tlie
])(jniiiiloii liad oj)jiortiinity to allef.^c that she was
saei'ilieed to tlie Meti'oj)olis, and thus to o])tain, l)y
way of compeiisatioii, tlie miaraiity on tl)(! i)art of tlie
Jmj)eriai (lovernnient of a larL,a* loan tor th(! construe-
tinn of the jji-oposed trans-eoiilinental railway iVoni
the (ireat Lakes to the Paeilie Ocean.

In sonic respects, tin- arrani^^ements wo have been
considering resemble those of the lleciprocity Treaty ;
but they are much uiore conii)reheuslve, and they are
better in other respects.

AA'e have j)laced the fpiestion of the fisheries on an
indei)endent looting. If the American fisheries are of
inferior value to the Britisli, — whicli we do not con-
cede,— then ^ve arc to ])ay the difl'erence. I5ut the
fishery (piestion is no more to be employed by the
Dominion of Canada, as it lias ])vvn lieretofore, either
as a menace or as a lure, in the ho})e of thus inducing
the United Slates to revive the llecijirocity Treaty.

A])ait fi'niii other new jirovlsioiiM in tlu? Treaty of
Washington of less moment, there is the all-import/uit
one, stii»ulating for I'cciproeal I'ight of commercial
transit for suT)j«'ets of (treat Britain through the
United States, hnd Ibr citizens of the United States
through the Dominion: in view of which Sir John
^Facdonald has no cause to I'cgret liis partici]iation
in the negotiation of the Tre.'ity.

Sir StalVord Northcote, in the late debate on the
Queen's ypcech, repels with foive and truth the sug-*

CUMMl'.UflAI. INTKliCOUUsK AM) TKANSl'OllTATloN. ^2[7

ffQHi'um of Lord i^ury that tlu; Treaty of AVasliingtoii
is iiiijust to Canada, lli; sliows, on tlio contrary, that
the Treaty \h Ijenelieial and aecei)tal)le to tlie I)t)niin-
ion, specifying particidai's, and citing tlie apj)r()l)atoiy
votes of the legislative assemblies of the Canadian
and maritime 1^'ovinces.

13nt the United States \vill never make another
treaty of reci])i'ocal free importation, uithc)nt includ-
ing jnanufactures and various other objects of the
])roduction of the United States not com])rehended in
the schedule of the Elgin-iMarcy Treaty. In fine,
Canada must expect nothing of this nature short of a
true zollverelii involving serious modifications of the
commercial relations of Canada to Great Britain.

RKLATION OF THE liUITISII IMKA'INCES TO THE UNITED -

lSTATi:s.

The Dominion of Canada is one of those " Posses-
sions," as they are entitled, of Great Britain in Amer-
ica, ^vhich, like Jamaica and other West India Islands,
have ceased to be of any economic value to her save
as markets, — which in tlnit I'cspcct wctuld lie of al-
most as much value to her in a state of independence,
— wliich she has invited and encouraged to assinnc
the forms of semi-indei»endent pai'liamcntary govern-
ment,— M-hich, on the whole, are at all times a chaige
to her rather than a profit, even in time of ])eace, —
whicli would be a burden and a source of embari'ass-
ment rather than a force in time of war, — and which,
therefore, she lias come to regard, not with complete
carelessness perhaps, but with sentiments of kindli-

248 THK Tlir.AlY OF WASIIINGTOX.

nc'ss and good-will, ratler tliaii of th« jealous tcna-
oiuusness of Hovorcigii ]>ow(.'r. AVhon tiie Dominion
nliall cxpivss di'siro to ])iit on tlie dignity of a sover-
eign State, she Avill not encounter any obstacles on
the j)ai't of the Metropolis.

In regard to the Dominion of Canada, as to the
Colonies of Australasia, the power of the Metro])olis
appears tliere chiefly m the person of the Govcrnoi*,
and in the occasional annulment of laws of the local
legislatures deemed incomj)atil>le with those of the
Empire. On the other hand, the Colonies, which iiavo
necessary relations of their own with neighboring
CTOvernments, as in the case of Canada relatively
to the United States, can not treat thereon them-
selves, as their interests requii-e they should, but
•must act through the intervention of the Metrojiolis,
which, in this res])ect, may have other intei'ests of its
own superior and perhaps injurious to those of tho
Colonies.

^leauwhile the Dominion has now to provide for
the cost of her own military defense, and that, not
against any enemies of her own, but against possible
enemies of the ;Moth(!r Country. The complications
of Kuro])ean or of Asiatic politics may thus envelop
tlic Dominion in disaster, for causes wholly foreign to
lier, as much so as if she were a sovereign State. In
such an emergency, the Dominion would be temj)ted
to assume an attitude of neutrality, if not of indepen-
dence.

All these considerations show liow slender Is the
tie which attaches the Dominion to Great Britain.

COMMKUCIAL INTKUCOUUSK AND TRANSrOUTATION'. 04;)

Tho entire liistoiy of all European Colonics in
America proves that the sentiment o'l mttionalltif^ that
is, of attaclnnent to the Mother Country, is very weak,
and readily yields i)lace to other sentiments ot'am1»i-
lion, intei'est, or passion, so as to produce feelings of
hostility Letween the inhaljitants of the ^Ieti'u])olis
juid those of the Colonies more intense than such as
exist between either of them and the inhabitants of
other countries. This fact is particidarly remarkable
in the incidents of revolution in Spanish America, ex-
ample of which we have now before the eyes in tiie
insurrection which rages in Culja. But the same fact
ajjpears distinctly in the past history of British
America. And there is no reason to suppose that
the sentiment of mere lof/cdti/^ thai is, political attach-
ment to the ^[other Country, is any more strong at
present in the Bominion of Canada than it formerly
was in the British Colonics now constitutincj the
United States.

M. II. Blei'/y, in a very insti'uctive essay on the
Colonies of the British Empire, discussing the rpiestion
whether the lOnglish beyond sea arc likely to remain
attached to England by recollections of family or of
country, observes with great truth that " the very
aptitude for colonization of which the ICnglish art!
so proud could not exist without implying a cer-
tain inmuciance of f^imily on their part and disdain
of their native country."

How true is this remark! It is illustrated by
contrasting the devoted attachment of the Fjench to
France, who in our day send so few colonists to

250 Tin: tki:atv of Washington.

Aiiici'ioa, aiul those clilctly Basques, wlule liiindi'cd.s
of tliousaiuls annually emigrate from Great lii'itain.

Lof/al Canadians, that is, loyal to Great Britain,
must of necessity take into account this fact, which ts
of the very essence of British colonization in Amer-
ica. They are also comjielled to regai'd another se-
rious fact of the same order of ideas, namely, the con-
tinual emigration from Canada to the United States,
not only on the ])art of recent immigrants from (Jreat
Britain, but, — which is more noticeable as a sign of
the times, — the emigration of old Canadians, natives
of the soil, in spite of all the eflbrts of the Govern-
ment to check and discouras^e it.

On the other hand, the liistory of all European col-
onization shows that a time comes when the ^lother
Country grows more or less indilferent to the f;ite of
her Colonies, which time appears to have arrived in
Gi-eat Ih'itain as respects the Dominion.

When Canada comjdains [without cause] that
her A\ ishes have been disregarded and her intei'ests
jtrcjudiccd by the stipulations of the Treaty of
AVashington, the great organ of oj)iniou iu England
re] dies :

"From this day forth look after your own busi-
ness yourselves: you are big enough, you are strong
enough, you are intelligent enough, and, if there were
any deficiency in either of these points, it would be
su])plied by the education of selfrellance. AVe are
both now in a false position, and the time has ar-
lived \vhen we should be relieved from it. Tal'e vp
your freedom : your days of aj^prenticci^luj} are over.''''

COMMKUCIAL INTKUCOUUSK AND TUANsroUTATIUN. U51

Instances might be cited of the cxpresf?ion of sini-
ihar idens in Pailianient.

Loyalists in Canada must remember another thing.
]\Iontesquieu, with the singular penetration Avliich
distinguislied him, perceives that England imparts to
her Colonies "la forme de son Government," by
means of which "on verroit se former de grands peu-
]>les dans les forets memes (pi'elle enverroit habiter."
But the parliamentary form of Government, which
lias contributed so greatly to the growth and strength
of Bi-ltisli Colonies, gave to them facilities of success-
ful rebellion,— that is, of separation from tlu; ^Nletrop-
olis^ — which no other form of government could im-
part, and the absence of whicli in Spanish America
[and now in Cul)a] has done so much to impede and
obstruct their separation from Spp:u. AVe had ex-
perience of this in our Kevolution, where each of the
Colonies had a governmental organization so com-
])lete that, in order to be independent tie facto, it
needed only to i<li!p off the British Governor. The
same fact was api)arent in our Secession War, as AI.
de Tocrpievillc had predicted. And, at this time, the
Dominion of Canada needs only to substitute for a
British Governor one of her own choice to become
a sovereign State organized as completely as Great
Britain herself.

There is another class of considerations of great
iniportance.

AVar between the United States and Great Britain
is now a contingency almost inadmissible as supposi-
tion, and so, of course, is ^var between the United

2r,2 Tin: theaty of wasiiingtox.

States and Canada, a possession of Great Britain.
Nevertheless, tlic capability of a country to main-
tain itself l)y force, if need be, is one of the elements
of its political life, and therefore can not l)e over-
looked in considering the condition of the Domiinon
of Canada.

In regard to Canada the intpiiry is the more impor-
tant, seeing that nnlitary force depends in part on
geographical facts, Avhich, in her case, equally as to
peace or wai, and for the same reasons, place her at
disadvantage on the side of the United States.

Tlie British I'ossessions in North America, bes^in-
ning with Newfoundland on the Atlantic Ocean, and
endi g with Q'leen Charlotte's Island on the Pacific,
extend across tiio continent in its broadest i)art, a
distance of 80° of longitude, but in a high latitude,
occupying the wh'^»h> of the countiy north of the ter-
ritory of the United States. Tlie space thus descrii)ed
looks large on the map; but the greater pait of it is
beyond the limit of the groAvth of trees, and much of
the ivsidue is too cold to constitute a chosen residence
for lCuroj)eans.

In a woi'd, the Dv)minion stretches along thousands
<»f miles, without caj)ability of extension on the one
side, where it meets the frozen north, or on the other,
where it is stopped by the United States. As a
country, it resembles a mathematical line, having
length without breadth.

^Meanwhile, owing to their internal position, their
northern latitude, and the geographical configuration
of the whole country, the two great Provinces of On-

COMMKUCIAL INTERCOURSE AND TH.vNSrORTA TION. 2oi,

tario and Quebec liav< no access to the sea iu tLe long
■winter, save tlirougli the Unitetl States.

Thus, it' it be possible to conceive of two countrie?',
whicli w6ul(l a])pear to be naturally destined to con-
stitute one Government, they are the United States
and tlie British Provinces, to the special advantage
of the latter ratlier than the former.

AVc therefore can atford to wait. AVe have nothing
to apprehend from the Dominion Pacific Ivailway: if
constructed, it will not relieve Ontario and Quebec
from their traimit dependence on the United States.
AVe ■welcome ever^ sign of prosperity in the Domin-
ion. AVith the natural limitations to her growth, and
the restricted capacity of her home or foreign mar-
kets, her prosperity will never be sufficient to prevent
her landowners and her merchants from lookinfj wist-
fully toward the more progressive population and the
more capacious markets of the United States. Iler
conspicuous public men may be sincerely loyal to the
British Crown ; many of the best men of Alassachu-
setts, New York, and Vii'ginia were so at the ojiening
of the American Bevolution ; but neither in French
Canada, nor in British Canada, nor in the maritime
Provinces, do any forces of sentiment or of interest
exist adequate to withstand those potent natural and
moral causes, or to arrest that fatal march of events,
which have rendered nearly all the rest of America
independent of Europe, and can not fail, sooner or
latei-, to reach the same consummation in the Domin-
ion of Canada.

The spirit of independence is a rising tide, in Can*

2o-i Tin-: TIU'.ATY OF '.VASmXGTON.

ada as olsewlicre in America, wliicli you sec lii its re-
sults, if not in its jirogress. It is like the advancement
ot'tlie sun in tlie sky, imjierceptible as movement, Init
plain as to stages and ultimate destination. *It is not
an etFect actively ]>roduced by the United States. It
is an event which we n'ould not precij)itate by violence
if we could, and which we scarcely venture to say we
wish fur, lest in so doing we sliould possibly wound
respectable susc('i)tibilities ; Init which we neverthe-
less exi)ect to hail some day with liearty gratulation,
as an event auspicious alike to the Dominion and to
the United States.

If Lord Milton's appreciation of the course of events
be correct, — and no j)erson has written more intelli-
gently or ft)rcibly on the Jjn'f/'s/i side of these ques-
tions than he, — the consuunnation is close at hand.
Arguing from the British stand-point of the San Juau
Questi<)n,hc says:

"TfCircat r»iitnin retains tlio Tslaml of S:ui Juan ami tlic
snialU'r islands of the arclii])olago lyitig west of the compromise
•^liatnu'l jHuj.dsctl l)y Lord Knsscll, loi^ctlier witli I'alos Island
:.nd tilt' Siuia fjronp, she will ])r('sorve licr jiowcr n])(>n tjjc
I'aritic, and will not in any way intorfoio with or menace the
liarbors or seas whieh aiipcrlain to the United States, It", on
liic otlicr liand, tliese islanils should bcconte Tnitcd States ter-
vitory, the higliwny from the IJritish possessions on the main-
land will he commanded hy, and be at the n)ercy of tliat
I'owor. . . .

"Such a condition of aiTalrs must inevitably force Ibitish
Columbia into the United Stales federation; and the valuable
district of the Saskat<hi'wan . . . must, ex necessitate rci, fol-
low the fortunes of Ibilish Columbia. Canada, excluded from
the I'acific, and shut in on two sides by United Stales terri-
tory, mnst eventually follow (he same course.'*

COMJIEUCIAL INTKUCOUUSK AND TKANsrOUTATION. 255

In contemplation of tlicse results, it: is difficult to
see how «iny American should fail on reflection to
approve the Treaty of Washington.

"Two i-ival Powers," says Provost Paradol, "but which arc
hut one at tlie point of view of race, of languacjc, of customs, and
of h^ws, itrcdominatc on this |(]:uict outside of Eiuojie. . . .
])ostMiy has ])ronouiiced ; and 1 no parts of the Avorhl at least,
AuK.rica and Oeeanica, beloni; without remedy to tlie Uiitish
race. . . . IJut the actual ascendancy of that race is but a feeble
image of wliat a near future reserves to it."

The time is not remote Avheii the United States
and the Dominion of Canada will be associated in
these great destinies, whether in close alliance or in
more intimate union, it matters little: when "Amer-
ica,"' like "Italy," shall cease to be a mere geograph-
ical denomination, and will comprehend, in a mighty
and proud Kepuldic, the whole condjined I^ritish
race of North Amei'ica.

But. fdorious as such a consummation would l)e, I
• would not have it to be save with the cordial con-
currence of the people of the Dominion, and the con-
tented acquiescence; at least of Great Britain. There
is many a page of suj)orlative ti'iiunph in the annals
of the British Isles, — that England, Scotland, and Ire-
land of which we in the Xe\v World once were, —
but not one of her days of victory can ecpial in lustre
that of the day when Great Britain, not less proud
of us, " the fairest of lier daughters," than of hei'sclf,
shall extend the riirht hand of welcome and atlection
to United America.

APPENDIX.

TREATY BETWE1^:N THE LWITED STATES
AND GUExVT BlUTAIX.

CoNCLUi»i:i» Mav 8, 1H7I ; IUtmicationh IvMiiANoiiu Jlnk 17, 187l ;
I'llUCLAIMLI) Ji;i-Y 4, 1B71.

liY THE rUIvSIDKNT OF TIIK UNITi:!) HTATi:s Or AMKUICA.
A rilOCLAMATIOX.

Wiir.iir.AS n Ticniy, hctuccii tlic United Stnti'.s of Aniciicii iiiul Ilcr Miijcsty
tho Queen of the United Kiii>;iloni of (ireat Iliituiii and Iidund, conioniiug the
ficttlcincnt of nil niiixcs of diHercnrc hctwccii llio two conntiicst, was (•(iiicIiido<l
and hijjned at Wasliin^jton hy tlio U\^\i Coinmissioncrs ai.d ricniiioteritiailes
of tlie re«iK'ctivo (io\LTnnientM on tlio ci^'litli day of May last; wlmli Treaty
i«, word for word, n.s followw :

The U'niied Statcn of Ainorlca and Her Ilritaniiie Mjijcsty, licitiK dcsiniiis to
provide for an ainii'ahlo Hettlcinent of idl cau.ses of iHU'ereiice lietween tlie two
conntricH, Inivc for that purpose njipointcil their respective. l'leniii<)teiitiaries,'lliat
is to say: tho I'rcsidcnt of the United States lias appointed, on tho part of the
United States, ns Conunissioners in n Joint Ilif^li Commission and I'ienipoton-
tiaries, Hamilton Kish, Secretary of Slate; Ifohert C'linvmiiiK ScluMick, I'jivoy
ICxtraordinary and Minister I'lenipotentiary to (ireat Ilriiain; Samuel Xelscm,
an Assoeiato JuHtico of the Supremo Court of the U'nited Staton ; l'',lieHe/,er
IJoekwood Hoar, of A[assaehusctts ; and (io<ir^'0 Henry William", of {)rej;on ;
and Her Hritannie Majesty, on her part, has apjiointed as her Hi^di Commis-
sioners and ricnii)Otcntiarics, the Higlit Iloiiorahlo (icorj^c I'Vcdcrick Samuel,
Karl do Grey aiul Karl of l{i])on, Viscount (iodorich, Baron (iraulham, a I>ar-
onet, ft I'ecr of the United Kingdom, Lord I'rcsideut of Her .lajcsty's Most
Honorahlo I'rivy Council, Knight of tho Most ^■oMo Order of the Garter,
etc., etc. ; tho Kight Honorahle Sir StatVord Henry Norlhcotc, Hnronet, ono of
Her Majesty's Most Honorahlo I'rivy Council, a Memher of I'arlianient, a Com-
panion of tho Most lloiiorablo Order of tUo JJatli, etc., etc. ; Sii* KdwarJ Thoni-

K

-1 ^'" '/

258 Arrr.NDix.

ton, KiiiK'it roinniaiiilor of ilio Afo-t lIcmoraMi' Onlcr of tlio Hulli, Ifcr Mnjos-
tv's Kiivoy l'',xtrnonlimin' ami Miiii-'liT rUMiipotoiitiaiy to tlu! United SnutM
(if AintM-icu ; Sir iFoliii iMi'xandor Macdoiialil, Kiii^'lil Coininandcr of llio Most
ll<inonilpl«' OrdiT of tlio Kalli, u infinluT of Her MajtwiyV I'livv Conncil for
Canada, and Mini-liT of .liistid- and Aitorncy-dcncnd of llcr MajcxtyV Do-
minion of ( 'anada ; and Monnta;,'iie llcinaid, Ktiiuiie, ( liirliclc I'litfi'ssor of In-
tcinalionul Law in llic l'niviM>ily of Oxford.

And tlio said l'lcni|tr)ti'ntiaiiiw, after liavinKONflninK»'d lliclr fall |io\voi-«,«ldi'li
«(Mo I'oiind to l>o in di.u and iifoiier form, liavc iijjtocd lu mid i-oiieindcd tlio
foliowitig nrlicloit i

AuTii i.i; I,
Wlii'nat dillVivncciliavo arisen liclwccn llie (iovprnmont of llio I'liitod StatP«4
and till' (ioM'rinniMit of Her Mrilannie Majesty, ami xtill exi'*!, ^'nivvliiK out, of
tlio «et< «oinmiilei| liy llie neverid ve«Kei« wliiili luivu j,'ivon riso to tlio {luim-i
tjoneriiaily known a* ilie 'MAi'/'k/ci CliUinH!"

And >%liere.M Her Mrilannie .Majesty lias antliori/.ed lier llij^li Conimi'.'.ionerrt
and rietniioieniiiiries to esiire"-*, in a friemlly h|iirii,lln) reniei fell liy Her Maj-
esty's (ioviMiiinont I'or the i-seaiie, nnder wlialever eireninstanees, of llui Alu-
liaiim \»nd otiier vi;»sels from llrilisli ports, and fur tlio deiircdiitioiiH eoinmitted
by tlioso vessels ;

Now, In order lo rcmovo and adjust nil eoinplaintK and claims on tlie |iart
(if the I'niled Sfatos, i\iul to jirovido for the speedy HCttlement of nneli claims,
Miiieli are not edMiiiu'd liy ller IJritannie MaJeslyV (iovornment, llio lliKli*'"!!-
Iraetiiij; Parties aK'ree that all the Mini claims, ^rowiiij; out of m-ts eomniilteil
liv the iifures.iid ve-els and ^enerieally known as the ''Alnlxtmit {"laiins," ftliall
he relVrri'd to a 'rrilimid of Arhiiialion to he composed of (ivo Arhitrators, lo ho
appointed in the following manner, that Is lo say: One shall ho named liy llio
rrc'ideiil of the rniled Slates; one shall l'(f named hy Her Uritannic .Majesty;
His .Miije»ly the Kin^ of Italy shall he leijiiested to namo one; the l're«ident
of the Swiss ('(aifedeniiion shall he reipiesied to namo oiio ; and His .Majesty the
llinporor (if llra/.il shall ho reipiesied to iniMie ono.

In eain of iho death, ahsenee, or ineaiiaeity to nervo of any or eiiher of the
• jiaid Arhitrators, or, in the event of eiiher of tln^i naid Arhltralors omilliiiK' or
(lecliiiin;; or ceasiii;; to act as such, the rresidenl of iho I'liited Stales, or Her
llritannie Maj('«iy, or His Majesty the Kiii); of Hnly, or llio 1 'resident of tlio Swixs
('onfi-di'iatioi^or His Majesiy ih(> I'.mperor of llra/.ll, as tho caso may lie, may
fiirihwiili namo anoiher person In ad as Arhitralor In llio plaeo and slead of
the Arhitralor (iiiK'iiialiy named hy mich Head of a Stato.

And in the event of {he rel'iisal or omission for two monllis after receipt of tho
rcipu'Nt from t-itlur of the Hi^rh Contractiii;; Parties of His .Majesty the Kin^
(if liuly, or tho rresidfiit of tho .Swiss Confederation, or His Majesty tho ICm-
pcror of llnuil, to namo an Arhitralor cither to (ill the orininnl appointment or
in the jiluco of ouc who lua^ have died, ho absent, or incnpacitntcd, or who nuiy

THE TREATY OF' WASHINGTON. 250

omit, (lorliiio, or frnm any cause roix^c to net ns fiiicli Ari)itratoi*, His Majosty
tlio Iviii^ of Sweden ami Noiway ?>liall lio rer|uestc(l tn name one or tnure |>cr-
HOiid, iiH tlio CISC may bo, to act iv« taieli Arliitralor or Ailiitrator.s,

Aktu'i.i; II.

Tlio ArliilratnrM nball meet at (ieiiuva, in Swit/.eiland, at tlio earliest coiiven-
iiMil (lay aCier tliey hIimII have lioeii iiiimed, and hIiuII |iroe.;i d imparl ially and
earefiilly to ONiimino and deeido all i|iii'sli(>ns tliat sIimII Ih'. I.iid helnro tliein nii
tlio |iait of llio (iovornmonis of the I'nitod Males and Her iliilaiiiije Mnjesiy re-
H|ieeiivo!y. All iiiiostloiis eoiisidored liy llio Triluiiial, iiit liidiiiK llio llnal awan',
oliall lio decided liy ii majority of all llio ArliilnilorM,

I'.aeli of tliu HIkIi Conlraelin^' I'arliox hindl also name ono ]iersnn to attend
tlij Triliniial in* ilH nt;eiit to rt'iircscnt It Kt'i'L'rally In all mattcri* eoiinceloi wiili
tliu arliltralioii,

AllTIOI.IJ III.
Tlio wrilion or prliKed easo of oaeli of llio two I'ariieH, neeompanled liy flio
doeiimenlH, lite ollicial eorreM|iiiii(leneo, and other e\ ideneo on widili each relies,
xlinll lio delivered in diiiilieato lo eiwli of tho Arliilralorx and lo the a;,'eiu of
tlio other I'arly as nooii as iiniy ho afier tlio or>;i'iii/.iiiion of tlio 'I'rllninal, hut
within a jioriod iiol oxeeedin;,' h'w months from the date of llio c.\eliaii;,'e ni' tho
nitillcationt* of tlilM Treaty,

Airrici.i; IV',

Wilhiii four months nfier tlio delivery on Imlli i-iiles df the written or i>iiiiiid
ease, oiihor Tarty muy, in like mnnner, deliver in dii|ilieato to each of liie said
Arhitrators, iiimI to tho a^ent of ilio other I'arty, a coimU'r-easc, and aiUliiioiial
doennients, eorres[ionden('o, and cvidenee, in reply to tho case, tloeiinients, corro-
spoiidenee, and ovideneo so prosonlod hy the other I'arly.

Tlif Arliitratorn may, lio\\evor, extend tho time for «Ielivoriii;; such eoniiter-
easo, doenmenlH, eorrespundeneo, and eviileneo, wli'M, in llieir jndj^meiif. it I'O-
t'onies necessary, in eoiiHeciiieni'o of the distaiieo of the place from which tho ovi-
deneo to ho presented is to he procured.

If in Iho ease Hiilpiiiilled to tho Arhilrators oiihor I'arly shall havo spciitied
or alluded to any report or dociimenl in i|s own oxelnsivo possession wiihmit aii-
iiexlii>{ (I copy, such I'arty nhall ho lioimd, if tho other Tarty thinks pn per to
apply for it, to furnish that I'arly with ii copy thereof; and either Tarty may
eall upon llio other, iIii-ohkIi Iho Arhilrators, to prodiico llio oriKimiU or eeriilled
t'o|iles of any papers adduced nx evidence, Klvinj,' in each instaneo siieh renMin-
nblo notico iih tho ArbitratorH may rer|iiiru.

AuTici.i; V.
It shall be tho duty of tho ORcnt of each Tarty, within two months after the
oxpirnlion of the time limited for the delivery of tho coimter-cnsc on both sides,

2G0 APPENDIX.

to deliver in diiiilicnte to catli of tlic siiitl Aibitnitors nml to tlio ngciit of tlio
otlicr jmrt} ii written w juiiited urjjuiiiciit fallowing tiic points nnd referring to
the evidence uimiu wliieli his Go>crnnicnt relies; and llio Arbitrators may, if
tiiey <le>ire fiirilier elucidation vviiii regard to any jioint, reipiirc a written or
printed ^taten.cnt or ar;,'unienl, or oral arKuinent l>y conni'el upon it; but in such
ease tlic other I'arty shall he entitled fo reply cither orally or in writing, as the
case may he.

AnTici.i; VI.
In docidin;^ tlic mailers suhmilted to the Arbitrators, they sliall he governed
hy the fillowing three rules, which are agreed upon hy the Iligli Contracting
Parties as rules to he taken as apjilicahic to the case, and hy wuch principles of
International l^aw not inconsistent therewith ns the Arbitrators shall determine
to have been ai)plicablc to the case.

KULES.

A neutral Govcrnmont is bound —

First, to use due diligence to prevent the fitting out, arming, or crpilpplng,
within its jurisdiction, of any vessel which it has reasonalilo ground to believe is
intended to cruise or to carry on war against a Power with which it is at
j)eace ; and also to use liko diligence to prevent the departure from its jurisdic-
tion of any vessel intended to cruise or carry on war as above, such vessel hav-
ing been specially adapted, in whole or in part, within such jurisdiction, to war-
like use.

{secondly, not to iiormit or sulVor cither belligerent to make use of its ports or
waters as the base of naval ojicralions against the other, or for the puri)osc 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 waters, and, as to all
persons within its jurisdiction, to i)rcvent any violation of the foregoing obliga-
tions and duties.

llcr IJritannie .Afajesty has commanded her High Commissioners and I^leni-
potcntiaries to declare that Her Majesty's (lovcrnmcnt can not assent to the
foifgoing rules as a statement of principles of International Law which were
in force at the time when the claims mentioned in Article I. arose; but that
Her Majesty's GovciTinient, in order to evince its desire of strengthening the
friendly rclatiiuis between the two countries and of making satisfactory provis-
ion for the future, agrees that, in deciding the fpiesiions between the two coun-
tries arising out of thnsv' cl.iiiiis, the Arbitrators should assume that Her Maj-
csty'i (iovernmeni had under' ikcn to act upon the luinciplcs set forth in these
rules.

/ n<l the High Contracting Parties agree to observe Mieso ndcs as botwocn
themselves in future, and to bring them to the knowledge of other maritime
Powers, and to invite them to acccdp to thciij.

Tin: TREATY OF ■WASHINGTON. OQi

AUTICI.K VII.

The ilcfi.sion of tlic Ti-ilmnul slinll, if possiljlc, be made uitliin tlirc ' months
from tlie chisc of iho ar^'imu'iit on hotli sides.

It .slmil be made in writing and dated, and hindl lie signed !)}• tlio Aibitiators
wlin may assent to it.

The said Tiiliiniai shall fust determine ns to cacli vessel se]>aratelv wliotlior
fireat Hritain has, \>y any act or omission, failed to fidl'ill any of tlie duties set
forth in the foregoing three rules, or recognized by the iirincijiles of Internation-
al I,aw not inconsistent with sncli rules, ami shall certify such fact as to each
of the said vessels. In case the 'I'ribuiial find that Great liritain has t'ailod to
fuhill any duty or duties as aforesaid, it may, if it tliink proper, i)rocccd to award
a sum in gross to be paid by (Jreat IJritain to the United States for all the
claims referred to it; nnd in su?h case the gross sum so awarded shall be paid
in coin by the Government of Great Britain to the Government of the United
^^tates,nt Washington, within twelve months after the date of the a.vard.

The award shall be in duplicato, one cojiy whereof shall be delivered to tliC
agent of the United States for his Government, and the other copy shall be de-
livered to the agent of Great Britain for iiis Government.

AnTicr.E VIII.
Knell Government shall pay its own ngcnt, nnd provide for the proper remu-
ncratiim of the counsel employed by it and of the Arbitrator appointed by it, and
for the expense of preparing nnd submitting its case to the Tribimal. All other
expenses connected with the arbitration shall be defr.nyed by the two Govern-
ments in equal moieties.

AnTirt.E IX.
The Arbitrators shall keep an acciiiate record of their proceedings, and may
nppoint nnd employ the necessary olTiccrs to assist them.

AUTICLE X.

In cnsc the Tribunal finds that Great Britain has failed to fidfill any duty or
duties ns aforesaid, nnd does not award n sum in gross, the High Contracting
Parties agree that n Board of Assessors shall l>e ajipointed to ascertain and de-
termine what claims are valid, nnd what am(Jimt or amounts shall be [paid by
Great Britain to the United States on nccount of the liability ari-irig frr>m
Buch failure, as to each vessel, according to the extent of such liability as* de-
cided by the Arbitrators.

The Board of Assessors shall be constituted as follows: One member there-
of shall be named by the I'resident of the United States, one member thereof
shull be named by Her Britannic Majesty, nnd one member thereof shall be

2 02 APPENDIX.

named l)y tlic ncprc?cntativc nt WasliiiiKton of His Majesty the Kinii: of Italy ;
and in fu.-c of a vacamy linii[iiMiiiig from any cause, it sliall bo filled in tlic
same mauiicr in Avhicli tiie uri;^inal a|i]iuiiitnient was made.

As soon as jiossililc after sucii nominations tlic Board of Assessors bliall he
organized in Washington, with jiower to hold th'iir sittings there, or in New
York, or in lJo,--ton. 'I'he memhcrs thereof shall severally snhseriho n solemn
ucelaratiiin that they will impartially and careluUy examine and decide, to the
Iwst of their judgment and according to justice and e(|nity, nil matters suhmit-
led to them, and shall forthwith proceed, iimlcr such rules and regulations as
they may ])rescril>e, to the investigatioi' of tlie chdms which shall he i)resented
to them liy tiie Govcvnment of the I'liitcd States, and shall cxaiiiine and de-
cide upon them in such order and manner us they may think jtrojier, hut upon
such e\idencc or iirt'ormation only ns shall he furnixhed hy or on hchalf of the
Governments of the United States and of (Jrcat Hritain respectively. They
shall be bound to hear on each separate claim, if rei|uircd, one person on he-
half of each Government, as counsel or agent. A mnjoiity of the Assessors in
each case shall be sullicient fur u decision.

'J"hc decision of the Assessors shall be given upon each claim in writing, and
shall be signed by them resj'cctively and dated.

Kvery claim siiall 1 e lU'cscnted to the Assessors w ithin six months from the
day of their (irst meeting ; b\it they nuiy. for good cause shown, extend the time
for the presentation of any claim to a fui ther iieriml not exceeding three numths.

'Ihe. Assessors shall report to each (iovernment at or before the cx])iration
of one year froin the dale of their first meeting the amount of claims decided
by them up to the date of such report ; if finther claims then remain ninlecided,
they slnill make a further rejiort at or before the expiration of two years from
the date of sucii first meeting; and in case any chiinis remain undetermined at
that time, they shall make a final report within a further ]>eiind of six mouths.

Tlie report or rejiorls shall be made in duplicate, and one co]iy thereof sludl
Ik; delivered to the Secretary of Slate of the United States, and one co|>y there-
of to Ihe Hepreseutalive of Her Hritannic Majesty at Wasliitigton.

All sinus of money which may bo awai'dcd under this article shall be payablo
ot Washington, in cfiin, within twelve monilis after the delivery of each report,

Tho Hoard of Assessors may cini)loy such deiks as they shall think neces-
sary.

'I'hc expenses of the Board of Assessors shall bo borne equally by the two
Governments, and paid from tinie to time, as may be found expedient, on the
j'.rodiiction of accounts ccrtilied by the Board. The remuneration of the As-
sessors shall also bo paid by the two Governments in equal moieties in n simi-
lar luanner.

AnTirt,i; XI,
The High Contrnclir.^ Parties engage to consider Iho result of the proceed-
ings of the Tribunal of Arbitralion and of the Board of Assessors, should such

Till-: THEATY OF WASIIINGTOX. 203

lloavil lie niipointcil, n.s a full, {icrfeft, nml final settlement of all tlic claims
licreinhefore icfcned to ; and fiirtlicr engage that every such claim, whothor
the same may or may not have been I'resentcd to tlie notice of. made, jirofer-
rcd, or laid hcfore the Trihunal or Uoard, shall, from and after the conclusion
of the jiroceedings of the Trilainal or lU)ard, lie considered uad treated as ri-
uolly settled, barred, and tlienccfurth inadmissible.

AuTici.i; XII.

Tlic High Contracting Parties agree that idl claims on tho part of coqior.v
tions, companies, or private individuals, citizens of the United .'states, upon the
Government of Her IJritannie JIajesty, arising out of act.s committed against
the persons or property of citizens of the Unitetl .vtates during the jicriod be-
tween the thirteenth of April, eighteen Inmdred and sixty-one, and the ninth
of Ajiril, eighteen linndred and'sixty-five, inclusive, not being claims growing
out of the acts of the vessels referred to in Article I. of this Treaty, and all
claims, with the like excciition, on the jiart of corjiorations, companies, or pri-
vate individuals, subjects of Her IJritannie Majesty, upon the Goverimicnt of
the United States, arising out of acts committed against the persons or prop-
erty of subjects of Iler IJritannie Majesty dining the same peiiod, which mav
have been presented to either Government for its interjxisition with the other,
nnd which yet remain unsettled, as well as any other such claims which may be
l)rcsented within the time specified in Article XIV. of this Trc4ity, shall be re-
ferred to three Commissioners, to be appointed in the following manner, that is
to say: One Commissioner shall be named by the Tresidcnt of ilie United
States, one by Her Hritannic Majesty, and a third by the I'rcsident of the
United States and Iler Britannic Majesty conjointly; and in case the third
Commissioner shall not have been so m>med wiiliin a jieriod of three months
from the date of the exchange of the ratifications of this Treaty, then the
third Commissioner shall be named by the ]{cprescntativc at Wasuington
of His Majcstv the King of Spain. In case of the death, absence, or inca-
pacity of any Commissioner, or in the event of any Commissioner omitting
or ceasing to act, the vacancy shall be filled in the manner hereinbefore pro-
vided for making the original ai)pointment ; the period of three months in case
of such substitution being calcidated from the date of the happening of the
Tacancy.

The Commissioners so named sliall meet at Washington at tlie earliest con-
venient period after they have been respectively named ; and shall, before \<ro-
cccding to any business, make ami sid)scribe n solemn declaration that they
will imi)artially and carefully examine and decide, to the best of their judgment,
nnd according to justice and cipiity, all such chiims as shall be laid before them
on the ])art of tho Governments of the United States and of Her IJritannie Maj-
esty, respectively ; and such declaration shall bo entered on the record of their
inocccdings.

204 Ari'KNDIX.

AitTin.i; XIII.

Tlio Cotuniis.Hionors shall tlicii forili\>illi ]iri)i'C(>il to tlio invcsiij^ation tif ilio
claiiujt wliicli t-liall 1)0 ]>ie>*ciit(.'(l ti) tliciii. Tiii'v Nliall iiivc'stij;ate anil dcciWo
giicli claims ill such order and Mich niaiiiicr as fiicy may think propor, hut iiiimi
Ruch e\idoiiceor infonnutioii only as ^hal) he fiiniishoil hy or uii hclialf of the
rc«|ieciivc (iovoniniciits. They hIiiiII he liound to receive and cdiisidor all writ-
ten ddciinients or ."tatements which may he [Mcsenled to them hy or on hclialf
(if the rcs|icctive (iovernments in support of, or in answer to, any claim, and to
liear, if re<piiied, one person on each side, on helialf of each (iovernment, as
counsel or njjciit for such (iovernment, on each and every separate claim. A
majority of the ("ommissioner.s hhall lie Miflicieut tor uii award in each case.
The award shall he j;iven upon each chdm in writing', and shall he signed hy
the Commissioners assenting; to it. It shall he competent for each (iovernment
to Jinmo one |)crson to attend the Commissioners a^^ its n^ent, to present mid
jmpport claim* on its helialf, and to answer claims made upon it, nnd to rcprc-
»icnl it generally in all matters connected with the investigation and decision
thereof.

The High Contraciiiig I'artics herchy engage to consider the decision of tho
Commissioners as ahsoliitely Hiial and cfinchisivc iijioii each claim dccitlctl upon
hy them, and to give full elVect to such decisions without nny ohjecti'ju, ovn-
»i(»n, or delay whatsoever.

AllTICI.K XIV.

I'.vcry claim shall he proscnicd to the Comniissionors witiiiii six months from
the <lay of their first meeting, unlesV in nny case where reasons for delay shall
he cstahlishcd to the satisfaction of the Commissioners, nnd then, nnd in nny
nucli case, the jiOriod for iircsen;ing the claim mny he extended hy them to nny
time not exceeding three months longer.

The Commissioners shall ho hound to examine nnd decide upon every claim
within two years from the day c.f their first meeting. It shall he competent
for tlic (Commissioners to decide in each case whether any claim has or has not
l>cen duly mude, ].ref(Tied. and laid hefnre them, either wholly or to nny nnd
what cxicnt, according to the true inleut nnd meaning of this Treaty.

AllTKI.K XV.
All sums of money which may he nwarde<l hy the Commissioners on account
of any d lim shall he juiiil hy tho one (iovernmcit to the other, as tho case may
1k3, within twelve mcniths after the date of the final award, without interest, nnd
without nny deduction save ns specified in Article XVI. of this Treaty.

Autici.e XVI.
The (^oirmissioners shall keep an nccurato record nnd correct minutes or
notes of all their proceedings, with the dales thereof, nnd mny n|ipoiiit nnd em-

THE THKATY OF WASIIINGTOX. OQo

pldv a secretary, nml nny otlicr ncrcssilry (ifliccr or oflictTs, to ns.-i.Ht tlicm ia
the tnuisaclicin of the liiisiiic.H.s wliirli imiy come licfore thom.

I''.a('li {idvcriiiiinit t-hall piiy its own ('oiiiiiii?<si(,iicr ami n;,'oiit or coimsd.
AU otlier expenses sliall ho dofniyed liy iliu two (ioveniinents in e<iniil moieties.

'I'hc wiioic exiienses of the <'oinniission, iiiehuiin;,' eontin^jent exjienses, sliail
ho (lefiayed iiy a ralahle dethietion on tlie anionnt of tlic sums awarded hy tlic
Conmiissioners, provided always liiat sneii dediielion siiall not exceed tlio rate
of live per cent, on tiio sums so awarded.

AitTin.i; XVir.
Tlio Iligii rontrnclin),' rnriies en^ajje .'o consider tlic result of the proreed-
ings of this Commission ns a fidl, jierfect, and liiud settlement of all sueh claims
as arc mentioned in Article XII. of ihis Treaty upon cither (iovernment ; ami
further en;,'n>;e that every such claim, whether or not the same may huv<; hecn
)ircsented to thu notice of, made. ))iclerred, or laid hefore the said Comnission,
tthall, from and after the conclnsinn of the proceedings of the >'aid O'lninission,
1)0 considered and treated n» liindly settled, harred, and thencefurth nadmis-
8iblo.

AiiTici.i; XVIII.

It is agreed hy the High Contracting Varties that, in nddltion to the I herty
secured to the United States fishermen Ity the Convention hetwecn tlie l' lited
States and Great IJritain, signed at London ihi tho 'jnih day of Octoher, I ■^IM,
of taking, curing, and drying fish on certain coasts of the Jlritish North Anier-
ican Colonics therein dclined, the inhahitants of tho I'nited .^taies .shidi lii.vc,
in common with the snhjects of Her ISrilannic Majesty, the lii)erfy, for the ierm
of years mentioned in Article XXX II I. of this Treaty, to take lish of every
kind, except shell fish, on the sea-coasts and shores, a. id in the hays, harbors,
nnd creeks, of the l'rovi?)ccs of (Juchec, Xova Scotia, and New iJrunswii k,aiid
the Colony of I'rincc ICdward's Island, and of the several islands thereunto ad-
jacent, uithout being restricted to any distance from the shore, with )icrmis.>.i(ni
to land upon the said coasts and shores nnd islands, nnd also niM>n the Magda-
len Islands, for the piiqioso of drying tlijir nets nnd curing their fish; piovidcd
that, in so doing, they do not interfere with the rights of i>rivatc jiroperty, or
with llritish fishermen in the peaceable use of any part of the said coasts in
their occupancy for tho same ]>ur))ose.

It "is understood that the above-mentioned liberty applies solely to the sea
fishery, nnd that the salmon nnd shad fisheries, and nil (jther fisheries in rivers
nnd tho mouths of rivers, arc hereby reserved exclusively fur llritish fishermen.

AnTici.K XIX.
It is agreed by the High Contracting Parties that British subjects shall have,
in common w iih the citizens of the United States, the libeify, fur the term of

2riG AITKNDIX.

yours mentioned in Article WXIII. of tliis Treaty, to tako fi.>h of every kinil,
cxce|it ^tll•ll-li^ll, on ilic eastern cca-ida^tH and hliorcM of tlio I'liited States
north of tlic ililriy-iiinlli jiandlel of noriii Ijititndo, and on tlio «liore!* of tlic huv-
cral island.". tlierouniD adjacent, nnd in tlni liayx, liarborH, and crcckn of tlio
miid sca-ioast.t and hlion-s of the 1,'nited SliitcM and of the said iHlunds, without
l)cin;< rostiicied to any di^lancc! from iho nliorc, with jiorniisHion to land upon
tho Kaid coa.xt.s of tlio I'liited Stal<'K an<l of the inlands aforenaid, for the pur-
]iot>c of drying their nets and ciiriii^ their (i^h ; |inivided that, in mi dniii^, they
do not inteiferi', witli tho rights of privati! |irii|icrty, or with tho ll.'honncMi of tlm
I'nited States in tho peacealilo nso of any jiart of tlio naid coasts in their oeeu-
j'aney for the same pnrpose.

It is understooil iluit the nliove-inentioned liherty apjilios solely to the Fcn
fishery, and that salmon and jiiad fisheries, and all other lisheries in rivers and
months of rivers, nro licreby reserved exclusively for fishermen of tho United
States.

Ar.nci.K XX
It is nj;rccd that the i)laccs designated by the Commissioners appointed un-
der the I'irst Article of the Treaty between the United States and Great Hritain,
concluded at Washington on the oth of June, 18."i4, upon the coi'sts of Her IJri-
tannic Majesty"-! Dominions atid tho United States, as places res'^rvcd from tho
cnnmion right of lishing under that Treaty, shall he regarded as iii like maimer
reserved fiom tho common right of fishing under tho ]>roccding irtides. In
case any rpiesiiun should arise hefween the (iovcnimcnts of tlio I'nited States
and of Her lliitannie Mnjesty as to the coininon right of fishing in places not
thus designated as reserved, it ii agreed that a Commission nhall ho ap|)oiiited
to designate such places, and shall ho constiti't(!d in tho same manner, and have
the same ]>owers, duties, and aulhoiity us tho Commission appointed under tho
gnid First Article of tho Treaty of tho .Itli of iFuno, lHol.

AllTICI.K, XXI.
It is agrecil that, for the term of years mentioned in Artielo XXXIII. of this
Treaty, fish-oil and fish of all kinds [except fish of the inland lakes, and of tho
rivers falling into them, and cxceiit fish preserved in oil], being the jiroducc of
the fisheries of the I'nited Stales, or of the Dominion of Canada, or of I'rinco
Kdward"s Island, shall be admitted into each country, respectively, free of duty.

AltTK IK XXII.

Inasmuch as it is asserted by the Government of Ilcr Uritannic Majesty that

the privileges accorded to the cit'zcn- of the United States under Article XVIII.

of this Tfeafy arc of greater value than those accorded liy Articles XIX. and

XXI. of this Treaty to tho ituhjocts of Her IJritaiinic Majesiy,aiid this usscrtiou

TIIK THKATY OF WASHINGTON. 0^37

is not ndinittcd hy the flovcriinicnt of tlic Uiiiicil States, it is fiirtlicr ?if;rcci.l
tliitt C'(lln1ni^.Hi(llle^H sliail lie a|i|)oiiiteil to tlctermiiie, liavin^ regard to tlic privi.
le^Oi aieordod \>y tlic I'nited Slates to tlic siilijectf, ofller iW-itaiiiiie Miiji.-ty, us
tttated ill Articli's XIX. and XXI. of this 'I'reaty, the amount of any coinpcn.-a-
tiiiii which, ill their oiiinioii, (Might to he jiaid hy the G(jverniiient of tiic United
Stales to the (iovermnent of Her Hritannie Majesty in return for the pphileges
accorded to llic citizens of the United States under Anide X\'II1. of this
Treaty ; and that any sum of money wiiich tlio said Commissioners ina\ so
award hhall he |)aid hy the U'nileil Slates (iovernment, in a gross sum, wiiliia
twelve months after siicli iiwurd shall have been given.

AnTici.i: XXIir.

The Coir.missioncrs referred to in the jneccding article ^llall he ajipointed In
the following nninncr, that is to say : One Uomnussioncr shall he nainetl hy the
I'residcnt of the United States, one hy Her Uritannie Majesty, and a third hy
the I'residcnt of the United States and llcr Hritaiinic ^lajesty conjointly; and
in case the third Commissioner shall not have been so named within a jicriod
of thice months from tlic date when this article shall take etl'ect, then the tiiird
Comini>sioiier shall he named hy the Kepresentativc at London of His JIajesty
the luiijieror of Austria and King of Hungary. In case of the death, ah.-ence,
or incajiacity of any Commissioner, or in the event of any C(jmmis.>ioiier omitting
or ceasing to act, the vacancy shall he filled in the manner lieieinheforc jiro-
vided for making the original a|>|iointment, the jieriod of three months in case of
such snhslitniion lieing calculated from the date of the ha]iiieningof the vacancy.

The Commissioners so luimcd shall meet in the City of Halifax, in the I'rov-
ince of Nova Scotia, at the earliest convenient period after they have hecn rc-
ppcctively named, and shall, before jirocccding to »iny laisiness, make and sub-
scribe a solemn declaration that they will imiiartially and carefully examine
and decide the matters referred to them to the best of their Judgment, and ac-
cording to justice and ciiuity ; and such declaration shall be entered 011 the
record of their jiroceedings.

ICacli of the High Contracting Parlies shall also name one jtcrson to attend
the Commission as its agent, to represent it generally in all matters connected
with the Commission.

AllTICLK XXIV.

The proceedings slinll he conducted in such order as the Conimii-sioncrs ap-
pointed under Articles XXII. and XXIII. of this Treaty shall detcnnine. They
phidl be boniul to receive such oral or written testimony as either Government
may present. If cither Party shall olVer oral testimony, the other Tarty shall
have the right of cross-examination, under such rules as the Commissioners
hIuiU jirccribe.

Jf III the case oubinltted to the Cutninissloncrii cither Tarty shall have speci-

2GS i\rri:Ni)ix.

ficil or nlliidoil to nny icjiort or tlociiincnt in its own exclusive possession, with-
out aiinexin;: ii co])_v, sucii I'arty .sliiiii be hound, if the otlier rtiity tliinks jirop-
cr ti) ni'i'ly for it, to furnisli that I'arty with n copy thereof; nnd citlier I'arty
may call ujion tlic oilier, through the Commissioners, to ]>roiiuco the origiiuils
or certified co])ics of any i)aiier» aihhiceil ns evidence, givinjj in each instance
audi reasonahle notice as the I'oinmissioncrs may rctiuirc.

The case on ciMicr siiie shall he dosed within n j)eriod of six motiihs from
the date of the orj;ani/.ntion of the C'ominis-'ion, and the Commissioners shall
he '•e<picsted to >;ive their award as soon as ]>ossihle thereafter. The aforesaid
j>eriod of six months may he extended Inr three months in case of a vacancy oc-
curring; ainon;^ the Connnissioners under the circumstances contcmpluted in
Article XXIII. of this Treaty.

AltTICI.K XXV.

The Commissioners shall keep an accurate record and correct minutes or
notes of nil their proccedinf,'s, with the dates thereof, and may appoint ami em-
ploy n f^crrctnry, and any other necessary ollicer or ofliccrs, to assist them in tlio
transaction of the husiness which may come heforc thcin.

Kach of the 111^11 Contrnctinfj I'arties shall pay its own Commissioner and
ngent or counsel ; all other cxj)cnscs shall he defrayed by the two Governments
in etjual moieties.

AllTlCI.K XXVI.

The navi;;Mtii)n of the I{ivcr St. Lawrence, ascending nnd descending, from
the forty-lifih jiarallcl of north latitude, where it ceases to form the houndary
between the two countries, from, to, and into the sea, shall forever remain fico
nnd open for the jiurposes of commerce to the ciii/.ens of the I'nitcd States, sub-
ject to anv laws and regulations of (ireat Ilritain, or of llic Dominion of Canada,
not inconsistent with such privilege of free navigation.

The navigatimi of the l{ivcrs Yukon, rorcupine, nnd Stikine, ascending nnd
descending, from, to, nnd into the sea, shall fv)revcr remain free nnd open for the
I)ur]K)ses of cnmincrcc to the subjects of Iler IJritnnnic Majesty nnd to the cit-
izens of the United .States, subject to nny laws and regulations of either country
within its own territory not inconsistent with such privilege of free navigation.

AnTiri.t: XXVII.
The Ciovenimcnt of Her Britannic Majesty engages to urge upon the Govcrn-
nient of the l)i>minion of Canada to secure to the citizens of the Uniteil States
the use of the Wetland, S;. Lawrence, and other cannls in the Dominion on tenns
,of c<iunlity witli the inhabitants of the Dominion ; and the Government of flio
United States engages that the subjects of Her Hritnnnic ^lajesty shall enjo}*
the use of the St. Clair Flats' Canal on terms of c<pndily with the inhabitants
of the United States, and further engages to urge upon the Jstnto Governments

THE TREATY OF WASHINGTON. 200

to secure to tlic siil)ject.s of Her Hiitannic Majesty tlic use of tlie several State
citnalH connected with tlie navigation of the hikes or rivers traversed by or con-
tiguous to tlie boiimhiry-liiic lictween tiic Possessions of tlic High Contracting
I'arties, on terms of cijuulity with the iuliubitants of tlic United States.

AitTicLi; NXVHI.

The nnvij^ntion of Lake Michigan shall also, for the term of years mentioned
in Article XXXHI. of tiiis Treaty, lie tree and ojien for the IlllrlPo^cs of com-
merce to tlie subjects of Her JJritaiinic Majesty, subject to any l.iws and rc^;-
nlations of the United States or of tlie States bordering thereon not incoiivist-
cut with such jirivilcge of free navigation.

Autici.i; NX IX.

It is agreed that, for the term of years mcntioncil in Article XXXIII. of this
Treaty, goods, wares, or merchandise arriving ai the jiorts of New York, Hos-
ton, nnd Tortland, and any other jiorts in the United .States w liich have been or
may, from time to lime, be specially designated by the I'residcnt of tho United
States, nnd destined for Her Uritannic ^lajestv's I'osscssions in North Ameri-
ca, may be entered at the proper custom-house and couvcyeil in tr.ip.^it, with-
out the imymcnt of duties, through the territory of the United States, under such
rules, regulations, and conditions foV the jirotection of the revenue as the Gov-
ernment of the Uniteil States may from time to time prescribe; and, under like
rules, regulations, and conditions, goods, wares, or merchandise may be con-
veyed in transit, witbniit the payii-eut of duties, from sucli rosses^ioiis through
the territory of the United States for export iVom the said ports of the United
States.

It is further agreed that, for the like period, goods, wares, or merchandise
ftiriving at any of tho ))orts of Her IJritnnnic Majesty's Possessions in North
America, and destined for the United States, may be entered at the proper cus-
tom-house and conveyed in transit, without tho payment of duties, through tho
said Possessions, under such rules and regulations and conditions foi the [pro-
tection of the revenue as the Goveiuincnts of the said I'osscssions m.i}- from
time to time prescribe ; and, under like rules, regulations, and condition, goods
wares, or merchamlise may be conveyed in transit, w ithout jiaymcnt of diitic,
from the United States through tlu said Possessions to other places ia the
United States, or for export from jwns in the said I'osscssions.

AnTicr,.-. XXX.
It is agreed that, for the term of yc:.rs mentioned in Article XXXHI. "f
this Treaty, sidijcets of Her IJritannic Majesty may carry in British vessels,
without payment of duty, goods, wares, or merchandise from one port or jdaco

i>70 ArPENDIX.

witliiii llic territory of llio rnitc.l Stiitiw uiion tlio St. Lnwroiirp, tlic drcnt
l^iki's ami llic rivers coiiiioctiii;; llic funic, to iiiKitlier jiort or yUna wiiliin tlio
territory of tlio I'liitcil .Stilted n* nfuiesaiil : rrovi.leil, tlml it portion of Mich
tran^iiortiitioii ii niutlc tliroiiK'li the Doininioii of Caiiathi hy laiul rarriaK'e aiul
in homl, iiii.lcr fiicii riilci ami reKulalions a?* may ho n^jreeil ni>oii lictwecii
the (io\crnmenl of ller Uritaiinie Majesty and the (.lovcrnmeiit of the Uiiilcil
States.

(.'iti/.ens of the Uiiiteil SfUcs may tor the like jierioil rnrry in United States
vessels, wiihont payment of duty. K'M'ds, wares, or merchandise from one jiort
or iilaco witliiii tiic I'osscssions of llcr MritaMiiic Majesty in Nortii America to
another port or jilacc within the said Possessions: I'rovided, that n portion of
such tran-|iortation is made throuj;h the territory of the United States hy land
carriage ami in l.oiid, under such rules and ie>;ulaiioiis as may he iiKieed upon
W'tween the (lovernment of the United State.s and the (Joveriiment of ller llri-
tunnie Majesty.

The CJovernment of the United States further en;;a;;es not to impose any cx-
jiort duties on K"<'ds, wares, or merchandise carried under this article throuf,di tlic
territory of tlie United States ; and llcr Majesty ".s (iovcrnmcnt engages to urgo
the I'arliament of the Dominion of Canada and the Legislatures of the othci*
Uolonies not to imi)nsc uny export duties on goods, wares, or merchandise car-
ried under this article; and the (Government of the United States may, in case
sut h cxjiort duties are imposed hy the Dominion of Canadn, suspend, during tho
jicriod that such duties arc imjioscd, the right of earning granted under this
article in favor of the suhjects of Her llritannic Majesty.

The (iovernment of the United Stales may suspend the right of carrying
grantetl in favor of the suhjects of llcr Hritannic Majesty under this article, in
case the Dominion of Canada should at any time deprive the citizens of tho
United Sfitc-- of the use of the canals in the said Dnminion on terms of e<iual-
itv with the inhahitants of tlic Dominion, as provided in Article XXV'II.

AiiTici.r, XXXI.
The r.overnment of ller Britannic :Majesty furtlier engages to ur/,c upon tho
Tarliament of the Dominion of Canada and the Legislature of New Brunswick
that no export dutv, or other duty, slwdl he levied on luinhcr or timher of any
kind cut on that porti(m of the American territory in the State of Maine watered
hv the Kiver St. .John and its trihutarics, and floated down that river to tho
sea, when the same is sliipi>ed to the I'nited States from the I'rovinco of Now
Brunswick. And, in case any such cxj-ort or otiicr duty continues to he levied
after the expiration of one year from the date of the exchange of the ratifica-
tions of this Treaty, it is agreed that the (iovernment of the United States may
suspend the right of carrying hercinheforc granted under Artide XXX. of this
Treaty for sueji period as such export or other duty may be lev led.

THE TRKATY OF WASHINGTON.

iiTl

AuTicr.i; XXX IF,
It i« fiirllicr n^vpcd tliat the in-ovi^^iniM iiml bti|)iilali()ii.s of Artifice XVIII.
to XXV. of tlii.-* Tivaly, inclusive, hUM cxtciul lo ihu Colony of Ncwfoiniillainl
M) fur ii.H tlu'y uio apiilu nlile. Hul if tlic IininTial I'arliaiiuMit, tliu I.c^'iolatiiro
of Ncwfoiiiulland, or tlic Coiiktohs of tlio I'liitctl .Slalom, slmll not omhracc tlic
("olony of Nfwfoiinilhuul in tiicir laws cnartcil for farryin^' tlie fi(rc;;oin;,' arti-
cles into ciVcct, then this article shall he of no cnect ; Init tlic omission to make
provision hy law to give it cllert, hy cither of the le(;islativc hotiiey aforesaid,
sliuil not in any way impair any other articles of this Treaty.

AuTin.i; XXXI I [.
Tiio forc,','oing Articles XVIII. to X.W., inclnsivo, anil Article XXX. of
tills Treaty, shall take cli'cct as soon as the laws reiiuired to carry them Into
oi-era-ion shall have been jmssed l)y the Imperial I'arliament of CJreat Hritain,
hy the I'arliament of Canada, and liy the Legislature of I'rinco Edward's Isl-
and on iho one hand, and hy the Congress of the United States on tlie otlier.
Snch as-viit liavinj; been given, the said articles sliall remain in fcirce for the
period of ten years from tlic date at which tlicy may come into operation ; and
further until tlie cxjiiration of two years after cither of the Hi^'h ('(intmciing
I'arties shall liavc given notice to the other of its wi>h to terminate the same;
each of the High Contracting Parties lieing at lihcrty to gi\c such notice to tho
other at the end of the said period of ten years or at any time afterward.

AiiTin.K XXXIV.
Whereas it was stipnlated hy Article I. of the Treaty conclnded at Washln;;-
tnn on the loth of Jnnc, imr., between the United States and Her Britannic
Majesty, that the line of bonndary between the territories of the United States
and those of Her Britannic Majesty, from the point on the forty-iiintli parallel
of north latitude up to which it had already been ascertained, sIkmiKI be con-
tinued westward along the said jmrallel of north latitude "to tlic middle of tlie
channel which separates the continent from Vanconvcr's Island, and thence
southerly, through the miildle of the said clianncl and of Fuca Straits, to the
Pacific Ocean;" and whereas tiie Commissioners appointed by the two High
Contracting Parties to determine that jiorlion of the boundary which runs
southerly through the middle of the channel aforesaid were unable to agree
upon the same; and whereas the riovcrimicnt of Her Britannic Majesty claim:)
tlMt such boundar}'-lino should, imder the terms of tlic Treaty above recited,
be run tlirongh the liosario Straits, and the Government of the United States
claims that it should be run through the Canal de Haro, it is ngixcd that the
respective claims of tlic Government of the United States and of the Govern-
ment of Her Britannic Majesty shall be submitted to tho arbitration and award

272 ArrENDix.

of His Miijosty tlie Kinperor of Cicrmnny, wlio, having rcgrtrJ to tlic nbovc-
incutioneil iirtirle of the said Treaty, shall decide tlicieupon, fiimlly and witli •
ont ai>i>eal, v\hiili of those rhiiins is most in ttccordaticc with the tmc interpre-
tation of tlic Treaty of June 15, li*i6.

AuTici.i: XXXV.
The nw.ird of His Majesty the Kni|i(M-or of Gcnnnny shall he considered as
alisnliilcly tlnal and (•oniluj.ive ; and full etl'ect siiall 1)C given to such award
wiiliont anv otijcction, evasion, or delay whatsoever. Snih decision shall he
given in writing and dated; it shall he in whatsoever form His Majesty nuiy
dioosc to adopt ; it shall he delivered to the Hcpresentativcs or otlier pnl)lic
Agents of the United States and of (Jreat Uriinin, respectively, who maV he actn-
nlly at IJerlin, and shall he considered as ojicrativc from the day of the date of
the delivery thereof.

Aiiticm; XXXVI.

The written or printed case of each of the two Partie!", accompanied hy the
evidence tdVercd in support of the snine, shall he laid hcforc His Majesty tiie
Knijieror of (K-rinany within si:-v months from the tlate of the exchange of ;hc
ratilicalions of this Treaty, and a opy of .such case and evidence shall he com-
nuKiicated hy each I'arty to the other, through their respective l{cpresentativcs
at Hcilin.

Tiie Higli Contracting I'arties nwy inchiilo in the evidence to he considered
hv the Arhitrator such documents, ollicial correspondence, and other olhcirl or
jiuhlic statements hearing on the suhject f>f the reference as they mi\y consider
necessary to the support of their respective cases.

After the written or printed case .shall have heen communicated hy each
Tartv to the other, each I'arty shall have the power of drawing up and laying
hefore the Arhitrator a second and defiitilivc statement, if it think fit to do so,
in rejilv to the case of the other ]iarty so communicated, which definitive state-
ment shall lie so laid hefore the Arliitrator. and also he mutually communicated
in the same manner as aforesaid, hy eacii I'arty to the other, within six months
from the date of laying the lirst statement of the case hefore the Arhitrator.

AiiTici.i; XXXVir.
It", in the case suhmitted to the Arhitrator, either I'arty shall specify or allude
to any rei)ort or document in its own exclusive jiossession without annexing a
copy, such I'arty shall he hound, if the other Party thinks proper to apply for
it, to funiish that Tarty with n copy thereof, and cither Party may call ujion
the other, through the Arhitrator, to produce the originals or certified copies
of anv jiapers adduced as evidence, giving in each instance such rcasonahlc no-
tice as the Arbitrator may recpiire. And if the Arbitrator should desire fur-

Tin: TREATY OF WASHINGTON. 273

tlicr cliiciilatinn or cvidcnre with regard to nny jioint contained in the state-
ments laid before liini, he ;;!iall be at liberty to require it from either i'arty, and
lie shall be at liberty to hear one counsel or agent for each Tarty, in rclatiou to
nny matter, and at such time, and in such manner, ns he may think fit.

AnricLB XXXVIII.
Tlie IJcprc.cntatives or other i)ublic Agents of the United States and of
Great Britain at IJerlin, respectively, shall be considered ns the Agents of their
respective Governments to conduct their cases before the Arbitrator, who shall
bo requested to address all his connnunications, and give all his notices, to such
Keprcscntatives or other j)nblic Agents, who shall rejirescnt their respective
Governments generally in all matters connected with the arbitration.

Article XXXIX.
It shall be competent to the Arbitrator to proceed in the said arbitration, and
nil matters relating thereto, as and when he shall see fit, cither in person, or by
ft person or jmrsons named by him for that puri)Osc, cither in the presence or
nbscnce of cither or both Agents, and cither orally or by written discussion or
otherwise.

AnricLE XTj.
The Arbitrator may, if he think fit, appoint n sccrctarj- or clerk for the
purposes of the jiroposed arbitration, at such rate of remuneration as he shall
tiiink proper. This, and all other cxi)ensc3 of and connected with the said ar-
bitration, shall be j)rovidcd for ns hereinafter stApulated.

AUTICLK XLI.

The Arbitrator shall be requested to deliver, together with his award, an ac-
count of all the costs and cxjicnses which he may have been put to in relarion
to this matter, which shall lortiiwith be rcjiaid by the two Governments in equal
moieties.

AnriCLE XLII.
The Arbitrator sliall bo requested to give his award in writing ns early as
convenient al'tcr the whole case on each side shall have been laid before Lim,
and to deliver one copy thereof to each of the said agents.

AnricLE XLIII.
The present Trcntv shall bo duly ratified by the President of the United
States of America, by and with the advice and consent of the S;cnatc thereof,

s

i,*--

274 AITENDIX.

nml hv llor Urifnnnic ^^njcsfy; nnd the ratificftiinns i«lmll ho cxchnngcd cither
nt 'Wasliington or at London witliin six moiitiis trum the date hereof, or earlier
if jKOssiMc.

In fiiiih wlicrcof, \vc, the rcppcctivc rienipotcntiarics, have signed tliis Treaty
and have licrcunto alhxcd our seals.

Done in diiiijicato at Washington the eighth day of May, in the year of our
Lord one thousand eight hundred and scvcnty-onc.

[.„ J,] Hamilton Tisii.

[,,.!,.] KOUT. C. SCHESCK.

[l. 8.] SAMtKL NkI.SON.

[l. s.] KnKNEZKU KOCK^VOOD IIOAR.

^L. gj Gko. II. WlM,TAM8.

[l. g.] . De Guey & liiroN.

n . g,] Ktaffoiid II. Noiithcote.

n g 1 EdWD. TllORNTOX.

[l, g.] John A. Macoonalp.

[l. g.] MOLNTAOUE UeUNAUP.

And whereas tlic said Treaty has hccn duly ratified on both parts, nnd the
respective ratifications of the same were exchanged in the city of London, on
the seventeenth day of June, 1871, by Robert C. Schcnck, Envoy Extraordinary
and Jlinister rienipotentiarj- of tlic United States, and Earl Granville, Her
Majesty's Principal Secretary of State for Foreign AtTairs, on the part of their
respective Governments :

Now, therefore, ho it known that I, Ultsses S. Ghant, rrcsidcnt of the
United States of America, have caused the said Treaty to be made public, to
the end that the same, and every clause nnd article thereof, may bo observed
and fulfilled with good faith by the United States and the citizens thereof.

In witness whereof, I liave hereunto set my hand and caused the seal of the
United States to bo allixed.

Done at the City of Waj*hington this fourth day of July, in the year of our
\a)T<1 ono thousand eight htmdred and Hcventy-onc, nnd of tlio Indo-
'•' pcndencc of the United StatCJ the nincty-Bixth.

U. 8. GlUNT.

By the President :

IIamiltos Fish,

Secretarif o/ Slate.

TUE DECISION AND AWARD. 275

DECISION AND AWARD

Afitdc 1)1/ the Tribunal of Arhilrntion constituted hy virtue of the jlrst Article
of the Treaty concluded at Was/iinrflon the Sth of Mmj, 11^71, between Her
M'ljrsfi/ the Queen of the United Kin'jdom of (Jrcat Britain and Ireland
and the United States of America.

Ilcr Ikitannic Majesty find the United States of America having agreed by
Article I. of tiie Treaty concUulcd and signed nt Wasliington tlic Hth of ^lay,
1871, to refer all th.c claims "gcncrically known as tlic Altibama Claims" to a
Tribunal of Arbitration to be composed of five Arbitrators, named :
One by Her Bt-itannic Majesty,
One by the President of the Uniteu States,
One by His Majesty the King of Italy,
One by the Trcsidcnt of the Swiss Confederation,
One by His Majesty the Emperor of Brazil ;

and
Ilcr Britannic Majesty, tlic President of the United States, II. M. the King
of Italy, the President of the Swiss Confederation, and II. M. the Emperor
of Brazil, having respectively named their Arbitrators, to wit:
Her Britannic Majesty :

Sir Alexander James Edmund Cockburn, Baronet, a Member of Her Maj-
esty's Privy Council, Lord Chief Justice of England ;
The President of the United States :
Charles Francis Adams, Es(iuire ;
His Alajcsty the King of Italy :

His Excellency Count Frederic Srlopis of Salerano, a Knight of the Order
of the Annunciata, Minister of State, Senator of the Kingdom of Italy ;
The President of the .Swiss Confederation :

Mr. .lames Stu'mptii ;
His Majesty tli3 Emperor of Brazil :

His l'',xreilency Miinios Antonio d'Aranjo.Viscoimt of Itnjiibii, a Orandec
of the ICmi)iro of Brazil, Member of the Council of II. M. the l'.ni[)cror
of Brazil, and his Envoy Extraord! lary and Minister I'lenipotcniiary in
France ;
And the five Arbitrators nbovo named having nssombled at Geneva, in Switz-
erland, in one of the Chambers of the Hotel de Viilc, ou the l.'ith of December,
1M71, in conformity with the terms of the Second Article of the Treaty of Wash-
ington of the 8tli of May of that year, and having proceeded to iho inspection

27G AITENDIX.

nml vcrificntidn of tlicir respective powers, wliicli were found duly autlicnticntcd,
the Tril)iiiml of Ailiitnitiou wns (k'( lured duly orj^anizcd.

'J'lie AkciiIs niuued liy eacii of ilic High Contracting rnrties, by virtue of the
sonic Second Article, to wit :

i'oT Her Uritanuic Mjijcsly :

Cliiirles Stuiirt Auhrey, Lord Tenterden, n I'ecr of the United Kingdom,
Coinpanicn of the Most Ilonorulile Order of iho Bath, Assistant Under-
Secretary of State for Foreign AU'airs; ^

And for the United States of Aniericu:
John C. Hancroft Davi^, I'.siiuirc;
whose powers were found likewise duly nutiionticafed, then delivered to each of
tlio Arliitrators tlie printed Case prepared liy each of the two I'arlies, nccoinpa-
iiieil by the docnineuts, the olllcial conesjioudciue, and other CNidenco on which
each relied, in conformity with the terms of the 'I'ldrd Article of the siiid Treaty.

In virtue of the decision i.ia'lc hy the Trilamal at its first fcssion, the Coun-
ter-rase, and addiii.iual docimicnts, correspondence, and evidence, referred to in
Article IV. of the. saiil Treaty, were delivered liy the respeclivn /\gcnts of tho
two I'artics to tho Secretary of the Trihuiinl on the l.'tli of j\pril, 1H72, at tho
Chamhcr of ('(inference, at the Hotel de \'illo of (ieneva.

The Triliuual, in accordance w iih tho vole of adjournment jmssed at their
second session, held on the lOth of Dcccmher, 1871, rcassenihled at (ieticva on
the l.'ith of June, 1H72; and the Agent of each of flic I'arties duly delivered to
ojich of tho Arbitrators and to the Agent of the other I'arty the printed Argii-
mcMt referred to in Article IV'. of llio said Treaty,

Tlie'l'ribuual having ^ince fully taken into their consideration tho Treaty, and
also the rases, counter-cases, documents, evidence, and arguments, and likewise
nil otlier communications n.ade to tlicin by tho two I'artics during tho progress
of their sittings, ami hnving impartially examined llin sumo.

Has arri\ed at the decision embodied in the present Award:

VVhcreas, having regard to the Sixth and Seventh Articles of the said Treaty,
tho Arbitrators are bound under tho terms of tho wiid Sixth Article, "in decid-
ing the matters submitted to them, to bo governed by t'lC three ]{ules therein
specified, and by such jirinciples of International Law not inconsistent tlicro-
with as the Arbitrators shall determine to have been applicable to tho case;"

And whereas the "duo diligence" referred to in the first and third of tho
said Hulcs ought to bo exercise<l by neutral fiovcrnments in exact proportion
to tlio ri!<ks to wliich cither of ilio belligerents may bo exposed from a failure to
fulliU the (ibiigations of neutrality on their part ;

And whereas ilio circumstances out of which tho facfH constituting tho sub-
ject-matter (.^■ the present controversy arose were of a nature to call for tho
exercise on tho part «)f Her Uritanuic Majesty's (Joverument of all [lossililo so-
licitude for tho observance of tho rights and the duties involved in the I'roc.a-
malion of Neutrality issued l>y Her Majesty on the l.'ith day of Mav, IHCI ;

And whcrciis the clVects of n violation of neutrality committed by moans of

THE DIVISION \'SD AWARD. 077

the constnirtion, equipment, niul arTnnmoni; of n vessel nrc not done nway with
by any commission >vlii(.'h tlic Ciovcrnment of tlio beilij^ercnt I'ower benefitoil
by tiio violation of neutrality may aftcrwuril have granted to tliat vessel: and
the uliiniato t«tep, by wliiili tlic olVonsc is completcil, can not be admissible ns
ft ground for the absolution of tlie olVender ; nor can llio consummation of his
fraud bccoino the means of estai)lisiiing bin innocence;

And whereas the jirivilege of exterritoriality accortled to vessels of war has
been admitted into the law of nations, not ns an absolute ri|;ht, but nolely ns a
l)rocceding fiumded on the principle of courtesy and mutual deference between
dilTercnt nations, and therefore can never bo njipealed to for the j>rofection of
nets done in violation of neutrality ;

And whereas the absence of a previous notice can not be regarded as a fiil-
nre in any considerali(ni rei|uired by the law of luitions in those cases in wiiich
a vessel carries with it its own condeinnatioii ;

And whereas, in order to impart to any Fupplics of coal a character incon-
sistent witii the second Unle, i)rohiliiting the use of neutral ports or waters as n
base of naval operation.' for n belligerent, it is necessary that the said sujiplics
phould be connected witn special circumstances of time, of persons, or of place,
which may combine to give them such character;

And whereas, with respect to the vessel called the Aluhnma, it clearly results
fronj nil the facts relative to the construction of the ship at first designated by
the "No. 21K)" in tho j)ort of Liveri>ool, and its ctpiijimcnt and armament in
the vicinity of Terceira, through the agency of tho vessels called the A</rij>/iiiirt
and tho linhnmii di.spatchcd fron\ (Ircat Hritain to that end, that the Urili>h
(lovcrnincnt failed to use duo diligence in tlie perfi)rmiiiice of its neutral obli-
galions; and especially llial it omiKcd, notwithstanding the warnings and ulli-
citd rcprescnhitions juado by the diplomatic agents of the United .^tates during
tho constructitin of tho said "No. 2'.)0," to take in due lime any edeciivc meas-
ures of prevention, and that those orders which it did give at last for the deten-
tion of tho vessel were issued so late that their execution was not jiractieable ;

And whereas, after the escape of that vessel, the measures taken for its pursuit
nnd arrest were so imperfect ns to lead to no result, and therefore can not be con-
sidered sulVicient to release Great llritain from the rcs])onsibiIity alrea<ly incurred ;
And whereas, in despite of the violations of the neutrality of (ireat IJntain
committed by the "'-';»0," this same vessel, later known ns the Confederate cniiser
y1/((/<nmfj, was on several occasions freely admitted into the ports of Colonies cjf
Great Hritain, instead of being ])roccc(led against ns it ought to have been in any
nnd every jiort within Hritish jurisdiction iu which it might have been found ;

And whereas tho Government of Iler iiritaimie Majesty can not justify itself
for a failure in tluc diligence on llio plea of tho insufliciency of the legal means
of action Mhich it possessed ;

I'onr of tho Arbitrators, for tho reasons nbovo nssigiicd, nnd the fifth for rea-
sons fsepnrately assigned by him, nrc of opinion,
That Gront Uritnin lins in ihia cnsc failed, by omission, to fidfill tho duties

278 Al'I'l'^NDIX.

prcsciil)Ctl ill the first nml tlic third of tlio Uulcs established hy tho Sixth Arti-
cle of the Treaty of Wa>hiiij;ton.

And \vlicrc;is, with rcsiioct to tlio vessel called tlio Florida, it results from
nil the tarts relative to the coiistriiction of the Orcto in the jiort of Liverjiool
and to its issue tiicrefroin, which facts failed to induce tho Authorities in (Jreat
Britain to resort to nieiisurcs a<lei|uate to ]ircvent the violation of tho neutrality
of that nation, notwithstanding the warniiij^s and repeated rc])rcscntations of tho
A>,'ents of the United States, that lier Majesty's Government has failed to use
duo ililij^encc to fidlill tho duties of neutrality ;

And whereas it likewise results from all the facts relative to tho stay of tho
Ordo nt Nassau, to iier issue from that port, to her enlistment of men, to her
sujiplie', and to her nrniamcnt with tho co-operation of tho IJritish vessel Prince
Alj'rfd at Green Cay, that there was nejjligencc on the part of the British Colo-
nial Authorities ;

And whereas, notwithstanding; the virdation of the nontrality of Great Britain
committed hy the Orcin, this same vessel, later known as the Confederate cruiser
Florida, was nevertheless on several occasions freely admitted into the ports of
British Colonies ,

And whereas tho judicial ncfjuittal of tho Orcto at Nassau can not relievo
Great Uiitain from tho responsii)ility incurred hy her under the i)rinciples of
International Law; nor can the fact of tho entry of tho Florida into tho Con-
federate jiort of Mohile, and of its stay there during' four months, extinguish tho
rcsponsil)iliiy jucviously to that tin<o incun-cd hy Great Britain :
For these reasons,

The Trihunal, hy a majority of four voices to one, is of oi)inion,

That Great Hritain has in this case failed, hy omission, to fulfill the duties
lirescril)cd in the first, in the second, and in the third of the Rules established
by ArtideVI.of tho Treaty of Washington.

And whereas, with respect to the vessel called the Shnmniloafi, it results from
all the facts relative to the departure from I^ndon of tho merchant vessel tho
Ski Kin;/, and to the transformation of that ship into a Confederate cruiser
under the name of the S/itiifindoa/i, near tho island of Madeira, that tho Gov-
ernment of Her nritannie Majesty is not chargeable with any failure, down to
that date, in the use of due diligence to fuhill the duties of neutrality ;

But whereas it results from all the facts cfinnccted with the stay of tho Sfirn-
andoah at Melliourne, and csjiecially with tho augmentation which tho British
G<nermnent itself admits to have been clandestinely ciVeetcd of her force by tho
enlistment of men within that port, that there was negligence on tho part of tho
Authorities at that place:
For these reasons,

The Tribunal is unanimously of opinion,

That Great Britain has not failed, by any act or omission, to fulfill any of
the duties prescribed by tho Bules of Article VI. in the Treaty of Washington,
or by the principles of International Law not inconsistent therewith, in respect

THE DECISION AND AWARD. 270

to tlic vessel called tlic Shenandoah, during the period of time anterior to her
entry into tlic jiort of Melbourne.

And liy ii inujority of tinx'o to two voices, the Tribunal declares that Great
Britain has failed, by omission, to fultill the duties prescribed by the secoml n:id
third of tlic Rules aforesaid, in the case of this same vessel, from and after her en-
try into Ilobson's Bay, and is therefore responsible for all acts committed by that
vessel after her departure from Melbourne on tho 18th duy of Ecbruury, I8G5.
And Ko far ns relates to tho vciiticls called
Tho 'J'linralodsn
(Tender to tho /I /(/6ama),
The Clarence,
The Taeony, and
The Archer

(Teiulers to the Floridu),
The Tribunal is imanimously of ojiinion,

That such Tenders or auxiliary vessels, being properly regarded as accesso-
ries, must necessarily follow the lot of their Principals, and be submitted to the
same decision whicli aii]ilies to them respectively.

And so far ns relates to tho vessel called the Retribution,
The Tribunal, by ti majority of three to two voices, is of opinion,
That (Jreat Britain Iins not failed, by nny net or omission, to fulfil' any of
the duties jircscribed by the three Hules of Article VI. in the Treaty of Wash-
ington, or by the ja-inciples of International Law not inconsistent therewith.
And so far ns relates to the vessels called
The (fcorijia,
The tSiimIrr,
The Xdfhrille,
The Tiilldhasscr, nnd
The Chicktiniaur/rr, respectively,
The Tribunal is iinaniinously of opinion.

That Great Britain has not failed, by any net or omission, to fulfill nny of
the duties prescrilied by the three Biiles of Article VI. in the Treaty of Wash-
ington, or by the principles of Intcrnntionnl Lmv not inconsistent ihcrcwidi.
And so far ns relates to tlic vessels called
The Sd/lic,
The Jefferson Davis,

The Music, 0

The Boston, nnd
Tho V. If. Jo;/, respectively,
The Tribunal is unanimously of opinion.

That they ought to bo excluded from consideration for want of evidence.
And whereas, so far ns relates to the particulars of the indemnity claimed by
the United States, the costs of pursuit of the Confederate cruisers arc not, in
tho judgment of the Tribunal, jiropcrly distinguishable from the general ex-
penses of tho war cn-rricd gn by tho United States,

2S0 APPENDIX.

The 'riiliiiiinl is thcicforc of opinion, liy n nmjority of flircc to two voices,

'I'lmt tlicie is no jjionnil for uwarUiiig to tlio United Sxates nny sum by way
of iniliMniiity under this head.

Ami wlierens ]pros|'ccti\o earnings can not iimiorly lio made tlio sulijcct of
conipen.-atiijn, inasnnich as tiiey dejicnd in their nature upon future mid uncer-
tain contingencies,

Tlie Tiiliiinal is unanimously of opinion,

']lii\i there is no ground for awarding to the United States nny sum hy way
of indemnity under thi> liead.

And wliereas, in order to arrive nt an crpiitalile competiKation for tlio dam-
ages «liicli Inive iK-en hustained, it is necessary to net aside all double claims for
the same losses, and uU claims for "gross freights" bo far as they exceed "net
freights;"

And wliereas it is just and rea.oiuilile to allow interest at a reasonable rate;

And whereas, in accordance with the spirit and the letter of the Treaty of
Washington, it is laeferablc to adopt the form of adjudication of a sum in gross,
rather than to rclor the subject of coinjicnsatiiin fur further discussion and de-
liberation to a Hoard of Assessors, as provided by Article X. of the said 'I'reaty :

The Tribunal, nniking use of the authority conferred upon it by Article VII.
of the said 'I'lcaty, by u maji.inty of four voices to one, awards to the United
States the sum of tit'leen milli'iiis live hundred thousand Dollars in gold as the
indemnity to be jiaid by Great Britain to the United States for the satisfaction
of all the claims referred to the consideration of the Tribunal, conlbimably to
the i)rovisions contained in Article VII. of (he aforesaid Treaty.

And, in accordance with the terms of Article XI. of the paid Treaty, the Tri-
bunal declares that all the claims referred to in the Treaty ns submitted to the
Tribimal are hereby fully, pertVctly, and (inally settled.

Furthermore, it declares that each and every one of the said claims, whether
tlic sanu- may or nniy not have been presented to the notice of, made, jjreferred,
or laid bet'iire ihe Tribunal, shall hencclorlh bo considered and treated as finally
settled, i)arred, and inadmissible.

In Testimony whereof this present Decision and Award has been made in
duplicate, and signed by the Arbitrators who have given their assent thereto,
the whole being in exact confonnity with the provisions of Article VII. of tho
said Treaty (>( Washington.

Made and concluded nt the Hotel do Ville of dcnevn, in Switzerland, tlio
1 1^1 day of the month of September, in tho year of our lyord one thousand eight
hundred and seventy-two.

(Signed) C. r. Ai)AM«.

(Signed) Fhkdi-kic ScLoris.

(Signed) ST-i-;MrKi,i.

(Signed) Vicomto d'lxAJUui.

r