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/ Book No

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THE

ALABAMA ARBITRATION

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THE

ALABAMA ARBITRATION

THOMAS WILLING BALCH

A. B. (Harvard),
Member of the Philadelphia Bar

Philadelphia

ALLEN, LANE & SCOTT

1900

^^i^lBRAR

APR 3 1968

%*,

TY Of ^^!:

■^^^^:

Prbss of

ALLEN, LANE & SCOTT,

Philadelphia, Pa.

INTRODUCTORY NOTE.

This is an attempt to tell the story of the Ala-
bama arbitration, as far as possible, in the words
of the participants in that drama. It is hoped the
work will be of use to historical students. My
brother, Edwin Swift Balch, Esq., has aided me in
one way or another in its preparation.

T. W. B.

Philadelphia, May 5th, 1900.

CHAPTER I.

OOON after the outbreak of hostilities in 1861 in
the United States between the Northern and the
Southern States over the Slavery question, the Con-
federate States, in order to injure the power of the
Union States by striking and destroying the mercan-
tile marine of the latter, sought with great energy,
tenacity and skill to create a navy sufficiently strong
to force the Union maritime commerce to seek the
shelter of a neutral flag. And in this course their
hasty recognition as belligerents by England helped
them very much.^ Fort Sumter fell April 13th, 1861;
President Lincoln issued his proclamation declaring a

^ The National and Private * ^Alabama Claims ' ' and their
''final and amicable settlement,^' by Charles C. Beaman, Jr.
Printed by W. H. Moore, Washington, D. C, 1871, pages, 7-48.
Correspondence concerning Claims Against Great Britain.
Volume VI. Washington: Government Printing Office, 1871,
page 4 et seq. Letter of " C." on The American Blockade
and Belligerent Rights in the London Daily News, Thursday,
October 19th, 1865 : reprinted in Correspondence concerning
Claims Against Great Britain. Volume IV. Washington :
Government Printing Office, 1869, page 257. Charles Francis
Adams, by his son, Charles Francis Adams. Boston and New
York, 1900, pages 168-172.

(I)

2 THE ALABAMA ARBITRATION.

blockade of the Southern ports on April 19th ; and
in spite of Earl Russell's promise to Mr. Dallas, the
American Minister, to wait to hear Charles Francis
Adams, the newly chosen representative to England
of the new Administration, the British Government
published, on May 13th, the very day of Mr. Adams's
arrival in London, the Queen's neutrality proclama-
tion recognizing the Confederates as belligerents.
That act was the first step that made it possible for
the latter to carry on from the shores of England a
naval war against the United States.

The first ship of war of any importance that flew the
Confederate flag on the high seas, was the Sumter? Un-
der the command of Raphael Semmes, who equipped
her and, at the end of June, 1861, took her successfully
out of New Orleans past the Union ships, she proved
for six months a scourge to Northern commerce.
She did not destroy many vessels, but she inspired
sufficient fear to Northern ship owners to cause many
of them to place their boats under the neutral flag of
England. Her career as a Confederate cruiser was
cut short at Gibraltar in January, 1862, when her com-

^ Memoirs of Service Afloat, during the War between the States,
by Admiral Raphael Semmes, C. S. N., Baltimore, 1869, pages
93-345 passim. Papers relating to the Treaty of Washington,
Volume I. Geneva Arbitration. Washington : Government
Printing Office, 1872, page 129.

THE ALABAMA ARBITRATION. 3

mander, finding it impossible to obtain coal, was forced
to have her sold. She was equipped in a Southern
port, and was accorded only such recognition by for-
eign nations as were in accord with the rules of in-
ternational law. But in the meantime, the Southern
Government was preparing to build in England, and
equip and man with English guns and English sea-
men, a fleet of sufficient strength to largely ruin the
United States mercantile marine.

Captain James D. Bullock, of the Confederate
States Navy, was the naval representative, and Messrs.
Eraser, Trenholm and Company were the financial
agents of the Confederate Government in England.
Captain Bullock first had built at Liverpool in 1861-62
the Oreto, subsequently known as the Florida? To
avoid suspicion it was given out that she was intended
for the Italian Government. But upon inquiry to
the Italian consul at Liverpool, he disclaimed all
knowledge of her; and the United States Minister
to England, Charles Francis Adams, informed Earl
Russell on February i8th, 1862, that she was in-
tended for the Confederate Government. On the

^Papers relating to the Treaty of Washington. Volume I.
Geneva Arbitration. Washington : Government Printing Office,
1872, page 133 et seq. The National and Private ^^ Alabama
Claims'' and their ''final and amicable settlement,'' by Charles
C. Beaman, Jr. Printed by W. H. Moore, Washington, D. C,
1 87 1, pages 49-68.

4 THE ALABAMA ARBITRATION.

2 2d of February the commissioners of customs re-
ported to the British Government that the Oreto
was built to carry gains, but that she then had on
board neither guns nor gun-carriages, and that she
was intended for the use of a Palermo firm. Again,
on March 26th, Mr. Adams called Earl Russell's atten-
tion to the probable destination of the vessel : but four
days before she had sailed with a general cargo, osten-
sibly for an Italian port. She next was heard of in the
West Indies at Nassau, New Providence. There she
aroused the suspicion of the American Consul and of
some British naval officers, who advised her detention.
Other vessels arrived from England with equipments
and guns. Finally she was seized; but the Vice-
Admiralty Court released her on the ground of lack
of evidence. She then sailed for Nassau, received her
armament at sea, and was christened the Florida.
From that time until October, 1864, when she was
captured by the United States ship of war Wachu-
sett, she destroyed many ships of the United States
merchant marine.

But it was the Alabama^ that of all the Confederate
cruisers did. the most to cause the transfer of United

* Memoirs of Service Afloat, during the War betwee^i the States,
by Admiral Raphael Semmes, C. S. N. Baltimore, 1869, pages
370-773, passim. Papers relating to the Treaty of Washington.
Volume I. Geneva Arbitration. Washington : Government

THE ALABAMA ARBITRATION. 5

States merchant vessels to the protection of the
English flag. She was better built, equipped and
commanded than any of the others to prey upon the
Union commerce. Captain Bullock contracted with
the Messrs. Laird of Birkenhead for her construction.
She was known as the ''290."^ No secret was made
of the purpose for which she was built. She was
launched on May 15th, 1862. The United States Con-
sul at Liverpool, Mr. Dudley, finding ample evidence
that she was intended as a vessel of war for the Con-
federate Government, sent it to Mr. Adams. On June
23d, Mr. Adams wrote to Earl Russell inclosing Mr.
Dudley's letter, and requested that action might be
taken either to stop the projected expedition, or else
to establish the fact that its purpose was not hostile to

Printing Office, 1872, page 146 et seq. The National and
Private ''Alabama Claims'' and their ''final and amicable
settlement'' by Charles C. Beaman, Jr. Printed by W. H.
Moore, Washington, D. C, 1871, pages 69-100. Charles
Francis Adams, by his son, Charles Francis Adams. Boston and
New York, 1900, page 306 et seq.

^The Alabama was known as the "290" because she was the
two hundred and ninetieth vessel that the Lairds built. It is a
curious coincidence that when, a few years since, Mr. Herbert,
then Secretary of the Navy of the United States, was to name
one of the great battleships building at Philadelphia by the
Cramps, he called her after his native State, the Alabama ; and
she, too, though quite unknown to the Secretary, was the two
hundred and ninetieth ship that the Cramps built, and was re-
corded in their books as *' No. 290."

6 THE ALABAMA ARBITRATION.

the United States. On July ist, the commissioners of
customs, to whom were referred Mr. Adams's letter to
Earl Russell and its inclosure, reported to the Gov-
ernment that the vessel was undoubtedly intended for
a warship, but that she had neither guns nor gun-car-
riages on board, and that their solicitor did not think
that there was any cause to detain her. The com-
missioners suggested also that the American Consul at
Liverpool should submit to them any further evidence
he might obtain. Mr. Dudley soon laid before the
commissioners a mass of evidence showing the true
state of affairs. The same evidence was submitted to
Mr. Collier, an eminent barrister, who, on July 23d,
gave his opinion that the *' 290 " should be detained.
The next day Mr. Adams sent Mr. Collier s opinion
and additional evidence to Earl Russell. While the
British Government was deciding what action it would
take in the matter, the ** 290," on July 29th, went to
sea without a clearance, ostensibly on her trial trip ;
she carried a party of ladies and gentlemen, but her
guests were sent back from the bar on a tug, and she
herself proceeded to a bay on the island of Anglesea.
The order for her detention arrived only after she had
sailed.^ She then proceeded to the Azores. There,

• When the Alabama escaped, the Confederate cause was at high-
water mark, and there were good reasons for believing that the
Union would be broken. But Meade's victory at Gettysburg and

THE ALABAMA ARBITRATION. 7

two English boats, carrying her armament and addi-
tional seamen, met her. After receiving from them
her equipment, the *' 290 " was turned over to Captain
Semmes and a crew composed almost entirely of Eng-
lishmen, who, on the broad Atlantic, christened her the

Grant's capture of Vicksburg at the beginning of July, 1863,
and the gradual, but steady ebbing, thereafter, of the tide of
Confederate power, undoubtedly influenced the action of the Brit-
ish Government. At the beginning of the following September
(1863), in spite of the ample evidence that Mr. Adams furnished
to Earl Russell of the ultimate destination and use of the two
iron-clad rams that the Lairds were building at Birkenhead for
the Confederates, Mr. Adams received from Earl Russell, on Sep-
tember 4th, a note dated the ist, in which the Earl said that under
the circumstances, " Her Majesty's Government are advised that
they cannot interfere in any way with these vessels." Mr. Adams,
seeing that one of the iron-clads was about to escape to sea much
in the same way that the Alabama had done, sent the following
vigorous communication to the Earl : —

" Legation OF the United States,

"London, September 5, 1863.

"My Lord: — At this moment, when one of the iron-clad
vessels is on the point of departure from this kingdom, on its
hostile errand against the United States, I am honored with the
reply of your lordship to my notes of the nth, i6th, and 25th of
July, and of the 14th of August. I trust I need not express how
profound is my regret at the conclusion to which her Majesty's
Government have arrived. I can regard it no otherwise than as
practically opening to the insurgents free liberty in this kingdom
to execute a policy described in one of their late publications in
the following language :

" * In the present state of the harbor defences of New York,
Boston, Portland, and smaller northern cities, such a vessel as

8 THE ALABAMA ARBITRATION.

Alabama. Then for nearly two years, under the
skilful command of her brave and able captain, the
Alabama, until her destruction by the Kearsarge off
Cherbourg, June 19th, 1864, became the terror of

the Warrior would have little difficulty in entering any of these
ports and inflicting a vital blow upon the enemy. The destruction
of Boston alone would be worth a hundred victories in the field.
It would bring such a terror to the ' ' blue-noses " as to cause
them to wish eagerly for peace, despite their overweening love of
gain, which has been so freely administered to since the opening of
this war. Vessels of the Warrior class would promptly raise the
blockade of our ports, and would even, in this respect, confer
advantages which would soon repay the cost of their construction.'
' ' It would be superfluous in me to point out to your lordship
that this is war. No matter what may be the theory adopted of
neutrality in a struggle, when this process is carried on in the
manner indicated, from a territory and with the aid of the subjects
of a third party, that third party to all intents and purposes ceases
to be neutral. Neither is it necessary to show that any govern-
ment which suffers it to be done fails in enforcing the essential con-
ditions of international amity towards the country against whom
the hostility is directed. In my belief it is impossible that any
nation, retaining a proper degree of self-respect, could tamely
submit to a continuance of relations so utterly deficient in reci-
procity. I have no idea that Great Britain would do so for a
moment.

*******

" I pray your lordship to accept the assurances of the highest
consideration with which I have the honor to be, my lord, your
most obedient servant,

''CHARLES FRANCIS ADAMS.

" Right Honorable Eari Russell, &c., &c., &c."

Mr. Adams's protest bore good fruit ; for a few days later he
received from Earl Russell the following note : —

THE ALABAMA ARBITRATION. 9

American seamen. She hoisted the British flag to
lure prizes to their destruction, was welcomed at
Cape Town, Singapore, and other British harbors,'
and practically drove the American flag from the

"Foreign Office, September 8, 1863.

*' Lord Russell presents his compliments to Mr. Adams, and has
the honor to inform him that instructions have been issued which will
prevent the departure of the two iron-clad vessels from Liverpool."

The English Government did not allow the vessels to sail to
enter the Confederate service, and subsequently bought them itself.

Papers relating to Foreign Affairs^ accompanying the Annual
Message of the President to the First session of the Thirty-eighth
Congress. Part L Washington : Government Printing Office,
1864, pages 357-360, 361-364, 367, 368. Charles Francis
Adams, by his son, Charles Francis Adams. Boston and New
York, 1900, pages 334-336, 341-344-

' The following letter from Dr. Edmund W. Holmes, of the
University of Pennsylvania — who was during a part of the Civil
War at Cape Town, South Africa, where his father. Captain Gid-
eon S. Holmes, was formerly the United States Consul — shows
how hostile British feeling was towards the Union cause : —

''Philadelphia, April 9th, 1900.

" My dear Sir : — I send you herewith the remarks about the
visit of the Alabama to Cape Town, as requested by you.

' * Upon the signal hill is the station from which approaching
vessels are signalled and reported down into the city by sema-
phore. From here, on that memorable day in '63, was announced
the approach of the luckless American bark The Sea Bride;
quickly followed by that of a steamer, under the British flag,
supposed to be the bi-monthly mail steamer of those days. Soon
the British flag changed to the Confederate colors and she proved
to be the cruiser Alabama. I arrived on horse-back, at Sea

lO THE ALABAMA ARBITRATION.

high seas to the shelter of the Union Jack. What
the United States lost, England gained. The feeling
in the United States towards England grew bitter.^
The Alabama was openly called a British pirate,^ and

Point in time to see her fire a shot and bring to The Sea Bride,
and put a prize crew aboard. Every American swore the bark was
within the three mile limit ; every Englishman swore she was
without these limits ; she was declared to be a lawful prize by the
British authorities.

* * I went aboard of the Alabama^ saw the mark of the un-
exploded shell of the Hatteras, which one of the junior officers
with great gusto declared if exploded would have ended the
steamer's career.

' ' I saw Captain Semmes in his cabin, with flowers piled higher
than his head surrounded by the elite of English aristocratic so-
ciety ; and when anyone talks now of British friendship I cannot
help thinking of this vessel, built in England, built with English
capital, armed with English guns, manned with English men to
prey upon the commerce of a friendly nation.

' • The day after the arrival of the Alabama in Table Bay the
merchants were gathered upon 'change, and in a bantering spirit,
taunted my father, Gideon S. Holmes, publicly upon the sucess-
ful career of the Confederate cruiser in evading the United States
men of war, when he replied : ' Well ! you dance now, but you
will pay the piper,' and the Geneva award was the fulfillment of
that prophesy. ** Yours truly,

*' E. W. HOLMES.

**Mr. T. W. Balch."

^Proceedings of the Chamber of Commerce of the State of New
York on the continued piracies of vessels fitted out in Great Brit-
ain upon American commerce. Saturday, February 21st, 1863.
New York, 1863.

* English Neutrality. Is the Alabama a British Pirate ? (By
G. P. Lowrey.) New York, 1863.

THE ALABAMA ARBITRATION. II

her successful destruction of American commerce
roused public opinion to fever heat.

American sentiment was well expressed in Lowell's
yonathan to yohn : —

' ' We own the ocean, tu, John :
You mus' n' take it hard,
Ef we can't think with you, John.
It's jest your own back-yard.
Ole Uncle S. sez he, * I guess,
Ef thet^ s his claim,' sez he,
'The fencin' -stuff '11 cost enough
To bust up friend J. B.,
Ez wal ez you an' me ! '

"Why talk so dreffle big, John,
Of honor when it meant
You did n't care a fig, John,
But jest for ten per cent, f
Ole Uncle S. sez he, * I guess
He's like the rest,' sez he:
'When all is done, it's number one
Thet's nearest to J. B.,
Ez wal ez t' you an' me ! ' "

Of the numerous other commerce destroyers flying
the Confederate flag for whose existence the United
States held Great Britain answerable, two, the Georgia
and the Shenandoah, gained a good deal of notoriety.
The former sailed before notice of her destination was
addressed to the British Government, but ample warn-
ing was given of the intended shipping of her arma-
ment to her ofl" the French coast for the British

12 THE ALABAMA ARBITRATION.

Government to have stopped the shipment. After
destroying many American ships, the Georgia returned
to Liverpool.^^ Thomas Baring, in a speech in Parlia-
ment on May 13th, 1864, thus described her career :^^
" At the time of her departure the Georgia was reg-
istered as the property of a Liverpool merchant, a
partner of the firm which shipped the crew. She re-
mained the property of this person until the 23d of
June, when the register was cancelled, he notifying the
Collector of her sale to foreign owners. During this
period, namely, from the ist of April to the 23d of
June, the Georgia being still registered in the name
of a Liverpool merchant, and thus his property, was
carrying on war against the United States, with whom
we were in alliance. It was while still a British vessel
that she captured and burned the Dictator, and cap-
tured and released, under bond, the Griswold, the same
vessel which had brought corn to the Lancashire suf-
ferers. The crew of the Georgia were paid through

'^^ Papers relating to the Treaty of Washington. Volume I.
Geneva Arbitration. Washington : Government Printing Office,
1872, page 1 56. The National and Private ' ' Alabama Claims ' '
and their ''final and amicable settlement,^'' by Charles C.
Beaman, Jr. Printed by W. H. Moore, Washington, D. C,

1871, pages 101-106.

^^ Papers relating to the Treaty of Washington. Volume I.
Geneva Arbitration. Washington : Government Printing Office,

1872, page 160.

THE ALABAMA ARBITRATION. 1 3

the same Liverpool firm. A copy of an advance note
used is to be found in the Diplomatic Correspondence,
The same firm continued to act in this capacity through-
out the cruise of the Georgia. After cruising in the
Atlantic, and burning and bonding a number of vessels,
the Georgia made for Cherbourg, where she arrived
on the 28th of October. There was, at the time, much
discontent among the crew ; many deserted, leave of
absence was given to others, and their wages were
paid all along by the same Liverpool firm. In order
to get the Georgia to sea again, the Liverpool firm
enlisted in Liverpool some twenty seamen, and sent
them to Brest. The Georgia left Cherbourg on a
second cruise, but having no success she returned to
that port, and thence to Liverpool, where her crew have
been paid off without any concealment, and the vessel
is now laid up. Here, then, is the case of a vessel,
clandestinely built, fraudulently leaving the port of her
construction, taking Englishmen on board as her crew,
and waging war against the United States, an ally of
ours, without once having entered a port of the power
the commission of which she bears, but being, for some
time, the property of an English subject. She has now
returned to Liverpool — and has returned, I am told,
with a British crew on board, who, having enlisted in
war against an ally of ours, have committed a misde-
meanor in the sight of the law."

14 THE ALABAMA ARBITRATION.

The Shenandoah^'^ was originally the Sea King, On
September 20th, 1864, she was sold to the father-in-
law of the managing partner of Fraser, Trenholm and
Company, and the transfer was registered the same
day. In October she cleared from London for Bom-
bay. About the same time a smaller steamer, carrying
her armament, sailed from Liverpool. They met at
Madeira where the Sea King, from that time known
as the Shenandoah, took on board her equipment.
She then cruised in the Atlantic and the Pacific for
ninety days, destroying many ships, when she arrived
at Melbourne. The news of her escape from Eng-
land had preceded her to Australia ; but, neverthe-
less, in spite of the protests of the American Consul,
she was allowed to make repairs, recruit her crew,
and replenish her supply of coal. Then the authori-
ties permitted the Shenandoah to sail to still further
harass and destroy American commerce.^* After de-
stroying a number of whaling vessels — some, owing

^^Papers relating to the Treaty of Washington. Volume I.
Geneva Arbitration. Washington : Government Printing Office,
1872, page 165. The National and Private "■ Alabama Claims'*
and their '' final and amicable settlement'' by Charles C. Beaman,
Jr. Printed by W. H. Moore, Washington, D. C, 1871, pages
107-149.

^^Papers relating to the Treaty of Washington. Volume I.
Geneva Arbitration. Washington : Government Printing Office,
1872, page 165 et seq. Letter of Mr. Adams to Earl Russell,

THE ALABAMA ARBITRATION. 1 5

to her captain's ignorance of the cessation of hos-
tilities, after the close of the war — she finally made
her way back to Liverpool, where her commander
gave her up to the British Government, by whom
she was transferred to the United States Consul.

The havoc and terror wrought by these vessels
ruined the mercantile commerce of the United States.^*
After Charles Francis Adams, who represented the
United States at the Court of St. James with ability
and dignity, had done everything possible to prevent
the escape of the Oreto and the Alabama, he sum-
marized with great vigor in a letter to Earl Russell
written on October 23d, 1863, the case for the United
States at that time against Great Britain. That letter
was as follows : —

"Legation of the United States.

(Received October 23.)

"London, October 23, 1863.

" My Lord : — It may be within your recollection that
in the note of the 1 7th of September which I had the

April 7th, 1865 ; Papers relating to Foreign Affairs, accom-
panying the Annual Message of the President to the First
Session Thirty-ninth Congress. Part I. Washington : Gov-
ernment Printing Office, 1866, page 578.

^* Speech of Richard Cobden delivered in the House of Com-
mons, May 13th, 1864.

l6 THE ALABAMA ARBITRATION.

honor to address to you in reply to yours of the 14th
of the same month, respecting the claim for the destruc-
tion of the ship Nora, and other claims of the same
kind, which I had been instructed to make, I expressed
myself desirous to defer to your wishes that they should
not be further pressed on the attention of Her Majesty^s
Government, so far as to be willing to refer the ques-
tion of the withdrawal of my existing instructions back
for the consideration of my Government. I have now
the honor to inform your lordship of the result of that
application.

"After a careful resurvey of all the facts connected
with the outfit and later proceedings of the gun-boat
' No. 290,' now known as the war-steamer Alabama, I
regret to report to you that the Government of the
United States finds itself wholly unable to abandon the
position heretofore taken on that subject.

" The reasons for this conclusion have been so often
explained in the correspondence which I have hereto-
fore had the honor to hold with your lordship touching
this case that I shall endeavor to confine myself to a
brief recapitulation.

*' The United States understand that they are at
peace with Great Britain. That peace is furthermore
secured by treaties which oblige both parties to refrain
and to restrain their subjects from making war against
each other.

THE ALABAMA ARBITRATION. I J

"They greatly regret to be compelled to admit the
fact that the vessel known first as the gun-boat, * No.
290,' and now as the Alabama, is roving over the seas
capturing, burning, sinking, and destroying American
vessels without lawful authority from any source recog-
nized by international law, and in open defiance of all
judicial tribunals established by the common consent
of civilized nations as a restraint upon such a piratical
mode of warfare.

*'That this vessel was built with the intent to make
war against the United States by British subjects, in a
British port, and that she was prepared there to be
armed and equipped with a specified armament adapted
to her construction for the very purpose she is now
pursuing does not appear to them to admit of dispute.

"That this armament and equipment, adapted to
this ship and no other, were simultaneously prepared
by British subjects in a British port, with the intent to
complete her preparation for her career, seems equally
clear. Furthermore, it is sufficiently established that
when this vessel was ready, and her armament and
equipment were equally ready, she was clandestinely
sent, by the connivance of her British holders, and
the armament and equipment were at the same time
clandestinely sent, through the connivance of the same
or other British subjects who prepared them to a com-
mon point outside of British waters, and there the

I 8 THE ALABAMA ARBITRATION.

armament and equipment of this vessel as a war-ship
were completed.

** This war-ship, thus deriving all its powers to do
mischief from British sources, manned by a crew of
British subjects enlisted in and proceeding from a Brit-
ish port, then went forth on her work to burn and de-
stroy the property of the people of the United States,
in fraud of the laws of Great Britain and in violation of
the peace and sovereignty of the United States. From
the earliest to the latest day of her career she does not
appear to have gained any other national character on
the ocean than that which belonged to her in her
origin.

*'From a review of all these circumstances, essential
to a right judgment of the question, the Government of
the United States understand that the purpose of the
building, armament, equipment and expedition of this
vessel, carried with it one single criminal intent, run-
ning equally through all the portions of this prepara-
tion, fully complete and executed when the gun-boat
*No. 290' assumed the name of the Alabama; and
that this intent brought the whole transaction in all
its several parts here recited, within the lawful juris-
diction of Great Britain, where the main portions of
the crime were planned and executed.

*' Furthermore, the United States are compelled to
assume that they gave due and sufficient previous

THE ALABAMA ARBITRATION. 1 9

notice to Her Majesty's Government that this criminal
enterprise was begun and in regular process of execu-
tion, through the agencies herein described, in one of
Her Majesty's ports. They cannot resist the conclu-
sion that the Government was then bound by treaty
obligations and by the law of nations to prevent the
execution of it. Had it acted with the promptness and
energy required by the emergency, they cannot but
feel assured the whole scheme must have been frus-
trated. The United States are ready to admit that it
did act so far as to acknowledge the propriety of de-
taining this vessel for the reasons assigned, but they
are constrained to object that valuable time was lost in
delays, and that the effort, when attempted, was toa
soon abandoned. They cannot consider the justice of
their claim for reparation liable to be affected by any
circumstances connected with those mere forms of pro-
ceeding on the part of Great Britain which are exclu-
sively within her own control.

** Upon these principles of law and these assump-
tions of fact resting upon the evidence in the case, I
am instructed to say that my Government must con-
tinue to insist that Great Britain has made itself
responsible for the damages which the peaceful law-
abiding citizens of the United States sustain by the
depredations of the vessel called the Alabama,

" In repeating this conclusion, however, it is not to

20 THE ALABAMA ARBITRATION.

be understood that the United States incline to act
dogmatically, or in a spirit of litigation. They desire
to maintain amity as well as peace. They fully com-
prehend how unavoidably reciprocal grievances must
spring up from the divergence in the policy of the two
countries in regard to the present insurrection. They
cannot but appreciate the difficulties under which Her
Majesty's Government is laboring from the pressure
of interests and combinations of British subjects ap-
parently bent upon compromising by their unlawful
acts the neutrality which Her Majesty has proclaimed
and desires to preserve, even to the extent of involv-
ing the two nations in the horrors of a maritime war.
For these reasons I am instructed to say, that they
frankly confess themselves unwilling to regard the
present hour as the most favorable to a calm and
candid examination by either party of the facts or the
principles involved in cases like the one now in ques-
tion. Though indulging a firm conviction of the cor-
rectness of their position in regard to this and other
claims, they declare themselves disposed, at all times,
hereafter as well as now, to consider in the fullest
manner all the evidence and the arguments which Her
Majesty's government may incline to proffer in refu-
tation of it ; and in case of an impossibility to arrive
at any common conclusion, I am directed to say there
is no fair and equitable form of conventional arbitra-

THE ALABAMA ARBITRATION. 21

ment or reference to which they will not be willing
to submit.^^

" Entertaining these views, I crave permission to
apprise your Lordship that I have received directions
to continue to present to your notice claims of the
character heretofore advanced, whenever they arise,
and to furnish the evidence on which they rest, as is
customary in such cases, in order to guard against pos-
sible ultimate failure of justice from the absence of it.

''In accordance with these instructions I now do
myself the honor to transmit the papers accompanying
the cases heretofore withheld, pending the reception
of later information.

*' I pray, &c.,

-CHARLES FRANCIS ADAMS." ^«

Earl Russell wrote to Mr. Adams three days later: —

"Foreign Office, October 26, 1863.
** Sir : — I have had the honor to receive your letter
of the 23d instant.

^^See Seward's letter of September 27th, 1865, to Adams,
post, page 66.

" The case of Great Britain as laid before the Tribunal of Ar-
bitration, convened at Geneva under the provisions of the treaty
between the United States of America and Her Majesty the
Queen of Great Britain, concluded at Washington, May 8th, 187 1.
Printed by order of Congress, U. S. A. Washington : Govern-
ment Printing Office, 1872. Volume III., page 490.

22 THE ALABAMA ARBITRATION.

"In that letter you inform me that you are in-
structed to say that the Government of the United
States must continue to insist that Great Britain has
made itself responsible for the damages which the
citizens of the United States sustain by the depre-
dations of the vessel called the Alabama,

" But toward the conclusion of your letter you state
that the Government of the United States are not dis-
posed to act dogmatically or in a spirit of litigation ;
that they desire to maintain amity as well as peace ;
that they fully comprehend how unavoidably reciprocal
grievances must spring up from the divergence of the
policy of the two countries in regard to the present
insurrection. You add, further on, that the United
States frankly confess themselves unwilling to regard
the present hour as the most favorable to a calm and
candid examination by either party of the facts or the
principles involved in cases like the one now in question.

" With this declaration Her Majesty's Government
may well be content to await the time when a calm
and candid examination of the facts and principles in-
volved in the case of the Alabama may, in the opinion
of the Government of the United States, usefully be
undertaken.

"In the meantime, I must request you to believe
that the principle contended for by Her Majesty's
Government is not that of commissioning, equipping,

THE ALABAMA ARBITRATION. 2$

and manning vessels in our ports to cruise against
either of the belligerent parties — a principle which was
so justly and unequivocally condemned by the Presi-
dent of the United States in 1 793, as recorded by Mr.
Jefferson in his letter to Mr. Hammond of the 13th of
May of that year.

"But the British Government must decline to be
responsible for the acts of parties who fit out a seem-
ing merchant ship, send her to a port or to waters
far from the jurisdiction of British Courts, and there
commission, equip, and man her as a vessel of war.

" Her Majesty's Government fear that if an admitted
principle were thus made elastic to suit a particular
case, the trade of shipbuilding, in which our people
excel, and which is to great numbers of them a source
of honest livelihood, would be seriously embarrassed
and impeded. I may add that it appears strange that
notwithstanding the large and powerful naval force
possessed by the Government of the United States, no
efficient measures have been taken by that Govern-
ment to capture the Alabama,

" On our part I must declare that to perform the
duties of neutrality fairly and impartially, and at the
same time to maintain the spirit of British law and
protect the lawful industry of the Queen's subjects,
is the object of Her Majesty's Government, and they
trust that the Government of the United States will

24 THE ALABAMA ARBITRATION.

recognize their earnest desire to preserve, in the
difficult circumstances of the present time, the rela-
tions of amity between the two nations.

"I am, &c., " RUSSELL." 1^

The unfriendly course pursued by the English
Government toward the Union States in permitting
the building of Confederate cruisers in English ports,
was forcibly brought to the attention of the people of
the North by the totally different policy followed by
the Russian Government. The Government of the
Tzar not only did not recognize the belligerency of the
Confederate States, ^^ but in addition, when there were
various credited rumors that the English and the
French Governments contemplated an intervention in
behalf of the Confederacy,^^ it sent a fleet under Admi-

" The case of Great Britain as laid before the Tribunal of Ar-
bitration^ convened at Geneva under the provisions of the treaty
betweeyi the United States of America and Her Majesty the
Queen of Great Britain^ concluded at Washington^ MaySthy i8yi.
Printed by order of Congress, U. S. A. Washington : Govern-
ment Printing Office, 1872. Volume III., page 505.

^^The case of Great Britain as laid before the Tribunal of
Arbitration, convened at Geneva. Washington : Government
Printing Office, 1872. Volume III. , page 46.

^^ Papers relating to Foreign Affairs^ accompanying the Annual
Message of the President to the First Session of the Thirty -eighth
Congress, Part I. Washington : Government Printing Office,
1864, pages I, 3.

The following extracts from the correspondence between Lord

THE ALABAMA ARBITRATION. 25

ral Popoff to San Francisco ^ and subsequently another

Palmerston and Lord John Russell in 1861 and 1862 will help to
explain the policy of the English Government during the ups and.
downs of the Union cause.

Referring to the strong opinion in May, 1861, of the French
Minister to Washington, Monsieur Mercier, in favor of raising the
blockade, Lord John Russell wrote on October 1 7th of that year
to Lord Palmerston : —

''There is much good sense in Mercier' s observations. But
we must wait. I am persuaded that, if we do anything, it must
be on a grand scale. It will not do for England and France to
break a blockade for the sake of getting cotton. But, in Europe,
powers have often said to belligerents, Make up your quarrels.
We propose to give terms of pacification which we think fair and
equitable. If you accept them, well and good. But, if your
adversary accepts them and if you refuse them, our mediation is
at an end, and you must expect to see us your enemies. France
would be quite ready to hold this language with us.

' ' If such a policy were to be adopted the time for it would be
the end of the year, or immediately before the meeting of Parlia-
ment."

The next year Pahnerston wrote to Russell : —

*'94 Piccadilly : September 14, 1862.

"My Dear Russell, — The detailed accounts given in the
Observer to-day of the battles of August 29 and 30 between the
Confederates and the Federals show that the latter got a very
complete smashing ; and it seems not altogether unlikely that still
greater disasters await them, and that even Washington or Balti-
more may fall into the hands of the Confederates.

* ' If this should happen, would it not be time for us to consider

^ Narrative of the Mission to Russia, in 1866, of the Hon.
Gustavus Vasa Fox. New York : D. Appleton and Company,
1873, pages 20, loi, 107, III.

26 THE ALABAMA ARBITRATION.

under Admiral Lessovsky to NewYork.^^ Indeed, it was

whether in such a state of things England and France might not
^address the contending parties and recommend an arrangement
upon the basis of separation ? * * *
* ' Yours sincerely,

^'PALMERSTON."

Earl Russell replied : —

''GoTHA, September 17, 1862.

"My Dear Palmerston, — ^Whether the Federal army is
destroyed or not, it is clear that it is driven back to Washington,
and has made no progress in subduing the insurgent States. Such
being the case, I agree with you that the time is come for offering
mediation to the United States Government, with a view to the
recognition of the independence of the Confederates. I agree
further, that, in case of failure, we ought ourselves to recognize
the Southern States as an independent State. For the purpose
of taking so important a step, I think we must have a meeting of
the Cabinet. The 23d or 30th would suit me for the meeting.

*' We ought then, if we agree on such a step, to propose it first
to France, and then, on the part of England and France, to Russia
and other powers, as a measure decided upon by us.

*• We ought to make ourselves safe in Canada, not by sending
more troops there, but by concentrating those we have in a few
defensible posts before the winter sets in.

♦ **«««*

*'J. RUSSELL."
Then Palmerston wrote : —

" Broadlands : September 23, 1862.
"My Dear Russell, — ^Your plan of proceeding about the
mediation between the Federals and Confederates seems to be ex-
cellent. Of course, the offer would be made to both the contend-

" Narrative of the Mission to Russia, in 1866, of the Hon.
Gtcstaviis Vasa Fox. New York : D. Appleton and Company,
1873, pages 21, 88, loi, 106, 107, no, 357.

THE ALABAMA ARBITRATION. 27

even hinted that Admiral Lessovsky had secret orders

ing parties at the same time ; for, though the offer would be as
sure to be accepted by the Southerns as was the proposal of the
Prince of Wales by the Danish Princess, yet, in the one case as in
the other, there are certain forms which it is decent and proper to
go through.

' ' A question would occur whether, if the two parties were to
accept the mediation, the fact of our mediating would not of itself
be tantamount to an acknowledgment of the Confederates as an
independent State.

* ' Might it not be well to ask Russia to join England and France
in the offer of mediation ? * * *

* ' We should be better without her in the mediation, because
she would be too favorable to the North ; but on the other hand
her participation in the offer might render the North the more
willing to accept it.

' ' The after communication to the other European powers
would be quite right, although they would be too many for media-
tion.

* ' As to the time of making the offer, if France and Russia
agree — and France, we know, is quite ready, and only waiting for
our concurrence — events may be taking place which might render
it desirable that the offer should be made before the middle of
October.

* * It is evident that a great conflict is taking place to the north-
west of Washington [Antietam], and its issue must have a great
effect on the state of affairs. If the Federals sustain a great de-
feat, they may be at once ready for mediation, and the iron should
be struck while it is hot. If, on the other hand, they should have
the best of it, we may wait awhile and see what may follow. * * *
* ' Yours sincerely,

'^PALMERSTON."

As, however, the Confederates were unable to follow up their
successes, and the Unionists had the larger population and

28 THE ALABAMA ARBITRATION.

that, in case of an attack upon the United States by a
foreign power, he should place his squadron at the
disposal of President Lincoln ; ^^ and, as at that time —

resources, it became more likely that the latter would ultimately
win. The British Cabinet, when it assembled towards the end of
October, 1862, decided to do nothing, and, a month later, it re-
fused to join France in the offer to mediate that Napoleon the
Third made.

The Life of Lord fohn Russell^ by Spencer Walpole. London,
1889. Second Edition. Volume II., pages 344, 349-352.

See also Charles Francis Adams, by his son, Charles Francis
Adams. Boston and New York, 1900, pages 280-290. '' Black-
wood's''' History of the United States, by Frederick S. Dickson.
Philadelphia: George H. Buchanan & Co., 1896. Blackwood's
Edinburgh Magazine. Volume 91 (January -June, 1862), pages
118, 129 ; volume 92 (July-December, 1862), page 646.

" The following letter from George Peirce, Esq. , of the Phila-
delphia Bar, throws light upon the attitude of Russia towards the
United States during the Civil War. Judge William S. Peirce sat
in the Court of Common Pleas of Philadelphia from 1866 to his
death in 1887. Andrew G. Curtin — "the War Governor" of
Pennsylvania — was Governor of the Commonwealth from 1861 to
1867. In 1869 General Grant appointed him Minister to Russia.

** Philadelphia,

** 15 March, 1900.

"My Dear Mr. Balch, — Many years ago my Father, the
late Judge Peirce, told me that there had come into a conversation
between him and Governor Andrew G. Curtin a question of the
attitude of Russia toward the United States during the Civil War,
and that Governor Curtin had given him certain details of very
great interest bearing on that question. Those details my Father
repeated to me, and it gives me great pleasure to set down for

THE ALABAMA ARBITRATION. 29

as Mr. Laird,^^ formerly of Laird Brothers, the build-
ers of the Alabama, had more than once shown — the

you here the story as told me by him. In order to understand
clearly a certain point referred to in it I should premise that, after
the war and during the presidency of General Grant, the Grand
Duke Alexis, a son of Czar Alexander II., came to this country
and when in Washington called on the President and was after-
wards, I think, entertained at a dinner at the White House. But
the President, unfortunately, overlooked making a formal call on
the Grand Duke, and at no time called on him either formally or
informally during his stay in Washington. His reception, how-
ever, by the people at all points visited by him was enthusiastic.
''Governor Curtin, who was the United States Minister to
Russia, said that when he was leaving Russia to return to this
country, he called to take leave of the Czar and, after a conver-
sation of a most friendly and cordial character, the Czar, in
bringing the interview to a close, requested the Minister to con-
vey to the people of the United States an expression of his kind
feeling and good will toward them. Governor Curtin thought it
strange that no message was sent the President, but said nothing
on the point, and then went to make his adieux to the Czarina.
She too was most friendly and on saying farewell, added, * Mr.
Minister, you bear with you my salutations and those of Russia
to the people of your country.' Governor Curtin said, * And is
there no message to the President ? ' ' No ;' replied the Czarina,
' there is not — my message is to the people. If you would know
the reason ask Gortschakoff.' And so the Governor went to see
Prince Gortschakoff — he would have gone in any event to say
good-bye — and asked him what it all meant and why there was
no word to the President. Whereupon M. Gortschakoff sent for

=^' Mr. John Laird, M. P., upon national defences. The
London Times of October 26th, 1863 \ Papers relating to Foreign
Affairs, accompanying the Annual Message of the President to
the Second Session, Thirty-eighth Congress. Part III. Wash-
ington : Government Printing Ofhce, 1865, pages 259, 260.

30 THE ALABAMA ARBITRATION.

English navy was inferior for defensive purposes to
that of the United States, the presence of Admiral

certain portefolios and, opening them, showed him : first, an au-
tograph letter from the Emperor Napoleon III. to the Czar, ask-
ing him to join France and England in an intervention between
the United States and the States in revolt and in a recognition
of the Confederacy: second, a copy of the Czar's answer de-
clining the Emperor's request and informing him that, if France
and England attempted to intervene, Russia would give active
aid to the United States : third, a copy of the instructions to the
Russian Admiral in American waters directing him to assemble
his fleet in the harbor of New York and, on any adverse demon-
stration made by France and England, to communicate at once
to the President of the United States, that the Russian fleet then
at New York was at the command of the Federal Government
and further, that, if money was needed it would be furnished,
that if more ships were wanted they would be sent, and that if
men were needed they would be forthcoming. ' This' , said M.
Gortschakofl, ' is what Russia did for you at a time of need.
Your people remember it and were kind when Alexis was
among them — your President seems to have forgotten it. And
so the message of my Masters was to your people alone.'

''Sometime after my Father told me this, I met Governor
Curtin at an entertainment and, in conversation with him, I men-
tioned the interest I took in the story repeated to me by my
Father, and Governor Curtin confirmed the details as here set
down by me.

' ' You may observe that, as I recall the story, the first paper
shown Governor Curtin by M. Gortschakofl" simply asked Russia
to join France and England. I do not recall any assertion that
the Emperor Napoleon stated that England was ready to join
France or had already joined her in the purpose. But cer-
tain correspondence at that time between Lord Palmerston and
Lord John Russell, which has very recently come to light, goes
far to show that the Emperor Napoleon had a very substantial

THE ALABAMA ARBITRATION. 3 1

Lessovsky and his ships in American waters was an
important factor in the game of international politics.

basis for a thought (I will not venture to say a promise) that he
could command the co-operation of England.

* ' I saw the Russian fleet in New York Harbor and remember
the demonstrations of welcome given its officers and men by our
people.

' * Sincerely yours,

''GEORGE PEIRCE.

''T. W. Balch, Esq'e."

Under the title, "What we Owe to Russia," an article —
written evidently, by some one who heard the above story, not
directly from Governor Curtin himself, but only at second or
even third hand — appeared in the New York Evening Express
of September ist, 1874, on the front page: — ''When Gov.
Curtin on the eve of his return to this country, went, in his ca-
pacity as Minister to Russia, to take formal leave of the Emperor,
the latter closed the conversation substantially in these words : ' I
wish, sir, that you would, on your return, express my hearty
thanks to the American people for the reception they have given
my son, the Grand Duke Alexis.' This, it will be remembered,
was shortly after General Grant had refused to return Alexis' call,
and the latter had left Washington in disgust. Gov. Curtin
noticed the Emperor's failure to send thanks to the Government
as well as to the people. He supposed, however, that it was a
slip of the tongue until the Empress bade him farewell in abnost
precisely the same words.

*******

' ' He was invited by Gortschakoff to a conference on the sub-
ject. Three books were brought in from the archives of the
Foreign Office. The first contained an autograph letter from
Napoleon III., asking Russia to join with England and France in
breaking up the Federal blockade and guaranteeing the independ-

32 THE ALABAMA ARBITRATION.

The fleet of Admiral Lessovsky, which consisted of
the Alexander Nevski, the Osliaba, the Peresvet, the
Variag, and the Vitiaz, arrived in the harbor of New
York in the autumn of 1863.^ The citizens and the

ence of the Confederacy. The letter asserted that England had
promised her co-operation, which was probably a lie. [Compare
the Palmerston-Russell correspondence on the question of inter-
vention, a7ite page 25, note 19.] The second contained the Em-
peror's reply. He flatly declined the alliance proposed by Na-
poleon, and declared that, in the event of any European inter-
ference in the War, Russia would actively aid the North. The
third book had within it copies of the sealed orders given to
the Russian Admiral, who, as our readers will remember, brought
his fleet into New York Harbor during the war. The orders di-
rected him to proceed at once with his whole available force, to
New York city ; to remain at anchorage there for some time ;
and, in the event of European interference, with the blockade, to
put himself and his whole force at the command of the Cabinet at
Washington, and promise abundant and speedy reinforcements."

" Harper s Weekly, for October 17th, 1863. Other Russian
war ships appear to have joined, subsequently, Lessovsky 's fleet
in American waters. La Politique Fra^igaise en Ameriquey
1861-1864, by Henry Moreau, Paris, 1864, page 71, foot-note.

On October 6th, 1863, Sumner wrote to John Bright: *'At
this moment I am more solicitous about France and England
than about our military affairs. In the latter there is a tempo-
rary check, and you know I said long ago that I was prepared
for further disaster ; but this can only delay, not change the
result. Foreign intervention will introduce a new, vast, and
incalculable element ; it would probably provoke a universal war.
You will observe the hobnobbing at New York with the Russian
admiral. Why is that fleet gathered there ? ' ' Charles Sumner ,
by Moorfield Story. Boston and New York, 1900, page 247.

THE ALABAMA ARBITRATION. 33

authorities of the city gave the Russians a grand
welcome. They showed the Russian officers over the
fortifications of the port, gave them a public reception
and held a military review in their honor ; ^ and the

** * ' Yesterday, our city gave proofs of the profound appreciation
by the American people of the friendly attitude which the Russian
Government has occupied toward our own, and especially since
the beginning of the Southern Rebellion. It was the occasion of
extending to Admiral Lessofsky (sic), and the officers of the Rus-
sian vessels of war now temporarily anchored in our harbor, the
hospitalities of the city, in accordance with the resolutions adopted
by the Common Council and approved by the Mayor. No unusual
effort had been given to give publicity to the proposed ceremonies,
and mere idle curiosity to see the military and civic display was
not sufficient to have drawn forth the immense concourse of
people which, with enthusiastic plaudits and shouts of welcome,
greeted our transatlantic visitors. The occasion was a grand
ovation, and in its proportions as well as the enthusiasm that
characterized it, was as gratifying to our distinguished guests as
it was unexpected." The A^a/ York Tribune^ October 2d, 1863,
page 3.

During the mission to Russia of the Hon. G. V. Fox, then
Assistant Secretary of the Navy, Captain Murray, in responding
at a banquet at the Merchant's Club of Saint Petersburg to the
toast, proposed by the Russians, ''The health of our masters,
the Officers of the American Navy," said in part : —

"In bringing across the ocean, the sympathies of a great
people, the vessels -of- war which I have the honor to represent
have come freighted with a cargo more precious than the wealth
of the Orient or the mines of California ; but we were not the
first to bear across the ocean wares as treasured. I shall never
forget the thrill of joy that pervaded America when the Russian
fleet, under Admiral Lessovsky, anchored in the harbor of New
York and spread the glad tidings that one great nation sided with

34 THE ALABAMA ARBITRATION.

significance of these festivities were the more marked
in that an English fleet, to whom only the usual cour-
tesies were extended, was also in the harbor at the time.
Afterwards Admiral Lessovsky took his squadron into
Chesapeake Bay and up the Potomac River ; and
President Lincoln and Secretary Seward gave the
Russians a most cordial welcome at Washington.^ In
view of the sympathetic attitude taken by the Russian
Government towards the United States from the be-
ginning of the Civil War on the one hand,^"^ and the

us in our troubles. It is always a pleasure to renew the remem-
brance of such national sympathy, and I am rejoiced that the
duty of toasting the Russian Navy has devolved on me. It is
always agreeable to drink to our friends, our sympathizers, our
alUes."

Narrative of the Mission to Russia, in 1866, of the Hon. Gus-
tavus Vasa Fox. New York : D. Appleton and Company, 1873,
page 162.

" Papers relating to Foreign Affairs accompanying the Anntial
Message of the President to the Second Session of the Thirty-
eighth Congress. Part III. Washington : Government Printing
Office, 1865, page 279.

*' Papers relating to Foreign Affairs accompanying the Annual
Message of the President to the First Session of the Thirty -eighth
Congress. Part II. Washington : Government Printing Office,
1864, pages 763, 765, 767, 769, 779. Abraham Lincoln, by John
G. Nicolay and John Hay. New York, 1890. Volume VI.,
pages 63-66. Charles Sumner, by Moorfield Story. Boston
and New York, 1900, page 339.

THE ALABAMA ARBITRATION. 35

Mexican expedition carried on by Louis Napoleon ^

^Quelques Pages d' Histoire Contemporaine, Lettres Poli-
tique s by Provost- Paradol. Paris, Michel L^vy Freres. Deuxi-
eme Serie, 1864, page 201 et seq. Troisieme S^rie, 1866, page
166. Commentaire sur les Elements du Droit International et
sur r Histoire des pr ogres du Droit des Gens de Henry Whea-
ton. PrhH^ d'une notice sur la carriere diplomatique de M.
Wheaton by William Beach Lawrence. F. A. Brockhaus,
Leipzig, 1869, Volume IL, pages 339-387, /^^j-zw.

The following letters from Richard Cobden to Charles Sumner
throw a flood of light on the Anglo-American relations during
the Civil War ; but some of the letters that passed between Lord
Palmerston and Lord John Russell (see ante page 25, note 19)
show that the English Cabinet was not nearly so friendly to the
Union as Cobden supposed,

"Athenaeum Club, London,
* ' Private. ' * 2 April, 1 863.

''My Dear Sumner.

"On receipt of your letter I communicated privately with
Lord Russell, urging him to be more than passive in enforcing
the law respecting the building of ships for the Confederate
government. I especially referred to the circumstance that it
was suspected that some ships pretended to be for the Chinese
government were really designed for that of Richmond, and I
urged him to furnish Mr. Adams with the names of all the ships
building for China and full particulars where they were being
built. This Lord Russell tells me he had already done, and he
seems to promise fairly. Our government are perfectly well in-
formed of all that is being done for the Chinese.

' ' Now there are certain things which can be done and others
which cannot be done by our government. We are bound to do
our best to prevent any ship of war being built for the Confeder-
ate government, for a ship of war can only be used or owned
legitimately by a government. But with munitions of war the

36 THE ALABAMA ARBITRATION.

and the building of the Alabama and other Confeder-

case is different. They are bought and sold by private merchants
for the whole world, and it is not in the power of governments
to prevent it. Besides your own government have laid down
repeatedly the doctrine that it is no part of the duty of govern-
ments to interfere with such transactions for which they are not
in any way responsible. I was therefore very sorry that Mr.
Adams had persisted in raising an objection to these transactions
in which by the way the North has been quite as miich involved
as the South. If you have read the debate in the House on
the occasion when Mr. Forster brought up the subject last week,
you will see how Sir Roundell Palmer, the Solicitor General,
and Mr. Laird the shipbuilder availed themselves of this opening
to divert attention from the real question at issue — the building
of war- ships to the question of selling munitions of war — in which
latter practice it was shown you in the North were the great
participators.

"You must really keep the public mind right in America on this
subject. Do not let it be supposed that you have any grievance
against us for selling munitions of war. Confine the question
to the building of ships in which I hope we shall bring up a
strong feeling on the right side here.

*' I remain truly yours,

"R. COBDEN."

'* MiDHURST, 22 May, 1863.
' * Private.

** My Dear Sumner.

* ' I called on Lord Russell and read every word of your last
long indictments against him and Lord Palmerston, to him. He
was a little impatient under the treatment, but I got through
every word. I did my best to improve on the text in half-an-
hours conversation.

Public opinion is recovering its senses. John Bull you know
has never before been a neutral when great naval operations have

THE ALABAMA ARBITRATION. 37

ate cruisers in England on the other hand, the public

been carried on, and he does not take kindly to the task. But
he is becoming gradually reconciled. He also now begins to
understand that he has acted illegally in applauding those who
furnished ships of war to prey on your commerce. It will not be
repeated. I cannot too often deplore the bungling mismanage-
ment on your side which allowed the two distinct questions of
selling munitions of war, and the equipping of privateers to be
mixed up together. It has confused the thick wits of our people,
and made it difficult for those who were right on this side on the
Foreign Enlistment Act to make the public understand the dif-
ference between what was and what was not a legal transaction.
In fact your Foreign Office played into the hands of our politicians
by affording them the means of mystification. If a plain, simple,
short and dignified declamation had been at first made against the
fitting out of ships of war, with clear statement of the law, and a
brief recital of what your government had done under similar
circumstances, to us, it would have been impossible for our
government to have resisted it. But when you opened fire on us
for not stopping the export of arms and munitions of war, you
offered an easy victory to our lawyers, and gave them an oppor-
tunity of escaping in a cloud of dust from the real question at
issue.

*******

* ' Yours very truly,

''R. COBDEN."

*'MiDHURST, Sussex, 7 Aug., 1863.
*'My Dear Sumner.

***** * *

' ' Though we have given you such good ground of complaint on
account of the Cruisers which have left our ports, yet you must
not forget that we have been the only obstacle to what would have
been aknost a European recognition of the South. Had England

38 THE ALABAMA ARBITRATION.

looked on the visit of the Russian fleet as a mark of
sympathy and encouragement.

joined France they would have been followed by probably every
other State of Europe, with the exception of Russia. This
is what the Confederate agents have been seeking to accomplish.
They have pressed recognition on England and France with per-
sistent energy from the first. I confess that their eagerness for
European intervention in some shape has always given me a
strong suspicion of their conscious weakness. But considering
how much more we have suffered than other people from the
blockade, this abstinence on our part from all diplomatic inter-
ference is certainly something to our credit, and this I attribute
entirely to the honorable attitude assumed by our working pop-
ulation.

***** * *

* ' Yours very truly,

''RIC. COBDEN."

The American Historical Review. Volume II. New York,
i897> pages 309, 311, 313-

CHAPTER II.

Towards the close of the Civil War, the temper of
the American people against England was thoroughly
roused, and a hostile demonstration at Washington
would have met with a hearty response throughout
the country.^^ The situation was not encouraging for

^^At the eleventh annual meeting of the National Association
for the Promotion of Social Science (September, 1867), Mr.
David Ross, of the English Bar, in discussing international arbi-
tration, said : —

''During a somewhat prolonged visit to the United States in
the year 1865, I talked freely and frequently with men of all con-
ditions of life in the Northern and Western States, and none of
them, so far as I can recollect, had the slightest ill-will to England
on account of the Trent affair, because they seemed to think
that England was right in the extreme course she adopted ; but I
met comparatively few who could talk with common patience of
the Alabama depredations, and I doubt if I met one who would
have raised his voice for peace if the President of the United
States had decided that redress must be had by war." Transac-
tions of the National Association for the Promotion of Social
Science. Edited by G. W. Hastings, LL. D. , General Secretary
of the Association. London : Longmans, Green, Reader & Dyer,
1868, page 174.

Sumner wrote to Cobden, on March i6th, 1863: *'I am
anxious, very anxious, on account of the ships building in Eng-
land to cruise against our commerce. Cannot something be

(39)

40 THE ALABAMA ARBITRATION.

a peaceful settlement. The English Government
throughout had assumed an attitude such as to pre-
clude, apparently, all hope of an adjustment.

In 1 864, Thomas Balch — a member of the Philadel-
phia Bar then residing at Paris, who was present at
Cherbourg during the fight between the Kearsarge
and the Alabama (June 19th, 1864)^ — proposed, after

done to stop them? Our people are becoming more and more
excited, and there are many who insist upon war. A very im-
portant person said to me yesterday : ' We are now at war with
England, but the hostilities are all on her side.' " Charles
Sumner, by Moorfield Storey. Boston and New York, 1900,
page 243.

Sumner wrote on August 4th, 1863, to John Bright: "The sec-
ond cause of anxiety is in our relations with England. Your gov-
ernment recklessly and heartlessly seems bent on war. * * *
A leading merchant said to me this morning that he would give
fifty thousand dollars for war between England and Russia, that
he might turn English doctrines against England. The feeling is
very bitter." Charles Sumner, by Moorfield Storey. Boston
and New York, 1900, page 246.

""On Thursday, June 30th, 1864, some of the American colony
in Paris gave a dinner, at short notice, to Captain Winslow, at
Phillippe's on the Rue Montorgueil, at that time the leading res-
taurant of Paris. Besides Captain Winslow and a few of his
officers, there were present : Mr. Dayton, the American Minister
to France, John Bigelow, the American Consul at Paris, Thomas
Balch, Mr. Beckwith, John Camac, Mr. Chadwick, G. H. Coster,
William L. Dayton, Jr., W. E. Johnston, Mr. Jones, Mr. Lang-
don, V. F. Loubat, John Monroe, Mr. Pennington, John Reu-
bell, George T. Richards, Joseph Swift, Stewart Thorndike, J. J.
Vanderkemp and others.

THE ALABAMA ARBITRATION. 4I

mature reflection and looking up precedents, to vari-
ous continental jurists, that the differences between the

The dinner that was served to, as one of the participants put
it, " Our Hero of the Kearsarge^ was as follows : —

Menu.

Potage a la Bisque et Consomm6 Quenelles et Laitues.

Relev6.

Turbot deux sauces. Filets Orly sauce tomates.

Jambon d'Yorck aux ^pinards.

Entries.

Filet de Boeuf ^ la jardiniere. Poulardes brais^es truffles.

C6telettes d'agneau Maintenon fin.

Salade a la russe; Mayonnaise de homard.

Punch a la Polonaise.

Rot.

Dindonneau nouveau. Canetons a la rouennaise.

Entremets.

Haricots flageoUets maitre d' hotel. ' Pois a la fran9aise.

Croutes a la parisienne et aux ananas.

Mac^doine de fruits glacis.

Dessert.

Mr. Dayton's letter accepting the invitation of the committee
was as follows : —

''Thursday, A. M.,
*'6 Rue de Presbourg.
" My Dear Sir, — It will give me, as well as my son, much
pleasure to join you at dinner at Phillippe's this (Thursday) even-
ing at six o'clock.

"Very truly yours,

"WILLIAM L. DAYTON.
* ' Thos. Balch, Esq. ,

"48 Av: Gabriel."

42 THE ALABAMA ARBITRATION.

United States and England arising out of the cruise of
the Alabama and kindred causes, should be argued be-
fore an International Court of Arbitration. In Novem-
ber, 1864, Mr. Balch, during a visit home, urged upon
some of his friends, among them General Nathanial P.
Banks, the submission of the Anglo-American differ-
ences to such a court.^^ General Banks requested Mr.
Balch to see President Lincoln, and arranged an inter-
view. The President questioned Mr. Balch, then lately
returned from Europe, largely about trans-Atlantic
affairs. The President ridiculed the Mexican Empire
and said that he considered it **a pasteboard concern
on which we won't waste a man nor a dollar. It will
soon tumble to pieces and, may be, bring the other
down with it." To Mr. Balch's suggestion that the
difficulties with England should be argued before a
Court of Arbitration, the President said that he thought
it might be possible in the future, that it was "a very
amiable idea, but not possible just now, as the millen-

^^ International Courts of Arbitration ^ by Thomas Balch, 1874.
Reprinted at Philadelphia, 1899. Henry T. Coates & Co., page
9, note 6.

General Nathanial P. Banks, who was elected Governor of
Massachusetts in 1857, 1858 and 1859, served three years in the
Civil War; in 1864 he was elected to Congress, and except that
he failed of re-election in 1872, continued to serve in the lower
House until 1877. For a number of years he was chairman of
the Committee on Foreign Relations.

THE ALABAMA ARBITRATION. 43

nium is still a long way off/' But he added : ''There
is no possible risk of a quarrel with England, as we
have enough on our hands. One quarrel is enough
for a nation or a man at a time." As to the proposed
Court of Arbitration he said: "Start your idea. It
may make its way in time, as it is a good one." On
arriving in London, on Christmas Day, 1864, Mr.
Balch spoke of it to several friends, but found no
one to treat it other than as the conceit of a well-
meaning enthusiast, except Richard Cobden.^^

'"'At the beginning of January, 1865, Richard Cobden wrote to
Mr. Balch :—

" MiDHURST, 3d January, 1865.

" My Dear Mr. Balch: — I was very sorry to miss the op-
portunity of seeing you in London. There are very many topics
on which I should have liked to have talked with you. * * * I
think it depends entirely on the discretion of your own authorities
at Washington to remain at peace with all the world until your
civil war is ended. I do not say that you have not grievances ;
but one quarrel at a time, as Mr. Lincoln says, is enough for a
nation or an individual. With the British Government I do not
think, on the whole, you have as much to be angry about as to be
grateful for what it has refused to do in conjunction with France
and other powers. Against individual British shipbuilders and
capitalists I admit you have very just grounds of grievance and
I have said as much publically. The French Government has no
doubt given you just ground of complaint by their occupation of
Mexico. But I don't think your Congress shows much wisdom
in trying to push Mr. Lincob into hostilities on that subject at
present, and I hope he will give the ' House ' a hint that they
may find full employment in domestic affairs, particularly in their

44 THE ALABAMA ARBITRATION.

Finally, Mr. Balch made his plan public in an open
letter. More than one editor refused to publish it.

finances, for the present. The Canadian affair will be peaceably
arranged. * * *

' ' My wife and daughter join me in kind remembrances to Mrs.
Balch and all your circle and I remain,

* * Very truly yours,

''R. COBDEN."

Here is an extract from another letter of Richard Cobden to
Mr. Balch:—

" MiDHURST, 17th Feb., 1865.
* * * -Jt * * *

* ' There never was a more absurd canard than that invented by
the Southern sympathizers — that England and France contem-
plated an intervention. And there is almost as great absurdity in
the programme which the same party has cut out for you when
the war ends — ^viz. , that you are to begin a war with France or
England or all the world. Now, I have a very different work in
store for you. When the war ceases, you will be like two line-of-
battle ships after a desperate struggle ; all hands will be required
to clear the wreck, repair damages in hull and rigging, look after
the wounded and bury the dead. There will be great suffering
among all classes before you return to a normal state of things.
You have been in a saturnalia of greenbacks and Government
expenditure, which may be likened to the pleasant excitement of
alcohol. But peace will be the headache after the debauch, with
the unpleasant tavern reckoning."

Some of the letters that passed between Lord Palmerston and
Lord John Russell upon the question of intervention show that
they thought of joining Napoleon the Third against the Union.
See ante, page 25, note 19.

The New York Tribune, April 21st, 1865, page 8. Interna-
tional Courts of Arbitration, by Thomas Balch. Edition of 1 899,
page 18, note 14.

THE ALABAMA ARBITRATION. 45

But Horace Greeley, who feared no unpopularity
where a cause was entitled, as he thought, to a hear-
ing, gave it a place in the columns of the New York
Tribune^ May 13th, 1865.^ The letter was addressed
to the able and conscientious correspondent of that
journal at Paris, Mr. W. H. Huntington, and was as
follows : —

"ENGLAND AND THE UNITED STATES:
"A letter from Thomas Balch.

"Paris, March 31st, 1865.

**My Dear Sir, — You asked me to put in writ-
ing the observations which I made to you yesterday
touching the outstanding questions between England
and the United States. I should be sorry to make
you read all that you so kindly listened to. It would
be to tax you rather too severely. But the current of
my remarks was to this effect :

"I. That both England and the United States pre-
ferred claims which, if not judiciously managed, might
and perhaps would lead to war.

^ This letter will be found in the New York Tribune of May
13th, 1865, on the fourth page, in the upper right hand comer.
The Tribune of that date can be found in the New York Public
Library (Astor, Lenox and Tilden Foundations), in a number
of other American libraries, and in the British Museum.

46 THE ALABAMA ARBITRATION.

**II. That the American claims were chiefly the
depredations of the Alabama^ whilst it seemed from
the tenor of Mr. Layard's recent speech, that the
British claims were also such as to rest upon ques-
tions of law. Neither set of claims was strictly na-
tional ; they were rather those of individuals, mer-
chants, shipowners, and others.

"III. That as to such claims, war was a barbarous
manner of enforcing them ; that the most successful
war would after all be a most expensive and unsatis-
factory process of litigation; and that the civilized
and Christian way of ascertaining their validity and
extent should be by arbitration.

"IV. That the best manner of composing such a
Court of Arbitration would be, that each party should
select some competent jurist, those two to select an
umpire. The claims to be presented, proved and
argued before this Court, whose decisions should be
final and without appeal.

"V. That such a proposition, proceeding from our
Government, would, without doubt, receive the coun-
tenance and support of all intelligent Englishmen. It
is true that some of the speeches recently made in
Parliament about us and Canada are of a nature to
discourage such expectations. On the other hand, it

THE ALABAMA ARBITRATION. 47

must be borne in mind that these gentlemen form a
class apart ; that it is their political faith to believe and
say unseemly things of Republican institutions, of the
men, habits of life, and principles of action developed
under them. But it was long ago that the wisest of
men gave us the measure of such people, and the
experience of mankind has confirmed his judgment.

**VI. Such a proposition from our Government
would at once quiet all the foolish alarms which have,
or appear to have, taken possession of so many persons
in England. It would also uphold and strengthen all
the advocates of progress. It would give greater force
to their arguments in favor of just reforms and liberty ;
and this not only in Great Britain, but throughout
Europe. The abandonment of the old system of arbi-
tration by a reference to a Sovereign, more or less
unfit from the very nature of his position, and the
introduction of a tribunal, almost republican in its
character, whose decisions would have a weight as
precedents, an authority heretofore unknown as expo-
sitions of international law, would be no trifling events
in the march of Democratic Freedom.

"VII. Such a proposition would also be in accord
with our traditional policy of peace and goodwill
towards men.

48 THE ALABAMA ARBITRATION.

" The most serious objection that has been urged,
so far as I have heard, against such a Court of Ar-
bitration, is the difficulty of finding gentlemen not
already biased by their feelings or in some way
committed in their opinions.

"This objection applies, however, in a measure, to
all human tribunals ; it would apply to arbitration by
a sovereign, and would leave us no solution other than
the dread arbitrament of war. For myself, I cannot
believe that there are not to be had in England and
America gentlemen of the requisite learning, experi-
ence, and impartiality for a position so dignified and
useful. At all events, there are many eminent men
in Europe in every way qualified for this high duty. I
have in my mind's eye a Swiss publicist, who, after
having filled the most responsible stations at home, is
now worthily representing his people in their most
important diplomatic post.^ The decisions rendered
by him and gentlemen like him would be such as two
great and free nations could accept with satisfaction.
I dare say he has friendly feelings towards the Repub-
lic, but he cannot be wanting in like sentiments for the
old Champion of Liberty. The preferences of such
enlightened statesmen could not possibly be of a char-

•* This referred to that most worthy, high-minded gentleman,
Dr. Kern, formerly President of the Federal Council, but then
Minister to France.

THE ALABAMA ARBITRATION. 49

acter to influence their judgments, and the parties
most interested might well be content to abide their
award.

*' Believe me, my dear sir, yours sincerely,

-THOMAS BALCH."^

'*In 1874, Professor James Lorimer, the Regius Professor of
Public Law and of the Law of Nations in the University of Edin-
burgh, wrote to Mr. Balch a letter concerning International Arbi-
tration, in which he said : —

* * Considering the interest which is everywhere taken in Inter-
national Arbitration at present, and more especially with a view
to the discussion that will take place at the meeting of the Inter-
national Institute at Geneva in October, I think it very desirable
that you should republish the letter which you addressed to the
'New York Tribune' in 1865, adding to it such suggestions as
your observation of subsequent events may enable you to offer.

'* I do not know to what extent that letter, or anything else
you said or did, may have led to the negotiation of the Treaty of
Washington, by which the threatened war between our countries
is believed by many to have been averted ; but certain it is, that
the letter was a very remarkable anticipation of the treaty which
was negotiated six years afterward. The tribunal which you
suggested almost exactly corresponded to that appointed under
Article XII. of the Treaty, and even the great tribunal which sat
at Geneva under Article I. was only a fuller realization of your
original conception, by a larger infusion of the neutral element
than you had contemplated, into the Court. In this respect it
certainly was an improvement. But for the presence of the
neutral judges it is doubtful if the work would have been brought
to a successful issue, and I think it very worthy of consideration
whether, on all future occasions, the Commissioners ought not to
be appointed exclusively from neutrals. ' '

See the New York Tribune y April nth, 1874. International

50 THE ALABAMA ARBITRATION.

The publication of this letter proved that the propo-
sition was not popular at that time in the United States.
Writing seven years later of this event Mr. Balch said :
**At home I was met in a less satisfactory manner.

Courts of Arbitration by Thomas Balch, 1874. Reprinted at
Philadelphia, 1899, Henry T. Coates & Co., page 28.

In the above letter Professor Lorimer points out how closely
Mr. Balch' s suggestion was followed in the Treaty of Washington,
as may be seen by a comparison of the letter printed in the
Tribune on May 13th, 1865, and Articles XII. and I. of the
treaty.

In Article XII. of the Treaty of Washington (1871), after a
statement of some matters other than the Alabama claims that
should be referred for settlement to three Commissioners, pro-
vision was made for the appointment of the Commissioners in the
following manner : ' ' One Commissioner shall be named by the
President of the United States, one by Her Britannic Majesty, and
a third by the President of the United States and Her Britannic
Majesty conjointly ; and in case the third Commissioner shall not
have been so named within a period of three months from the date
of the exchange of the ratification of this treaty, then the third
Commissioner shall be named by the Representative at Washing-
ton of His Majesty the King of Spain. In case of the death,
absence, or incapacity of any Commissioner, or in the event of any
Commissioner omitting or ceasing to act, the vacancy shall be
filled in the manner hereinbefore provided for making the original
appointment ; the period of three months in case of such substitu-
tion being calculated from the date of the happening of the
vacancy. ' ' Treaties and Conventions concluded between the United
States of America and other Powers since fuly 4th, 1776. Depart-
ment of State. Washington : Government Printing Office, 1889,
page 484.

In Article I. , the Court of Arbitration to consist of five Arbitra-
tors to try the ''Alabama Claims " was provided for as follows : —

THE ALABAMA ARBITRATION. 5 1

The Civil War was near its end, and the passions
aroused by it were at their highest. I received more
than one angry rebuff, and sometimes the contempt
which the idea excited was not always civil. Some
good people went so far as to say that I had lived so

' * One [Arbitrator] shall be named by the President of the
United States ; one shall be named by Her Britannic Majesty ;
His Majesty the King of Italy shall be requested to name one ;
the President of the Swiss Confederation shall be requested to
name one ; and His Majesty the Emperor of Brazil shall be re-
quested to name one.

* ' In case of the death, absence, or incapacity to serve of any
or either of the said Arbitrators, or, in the event of either of the
said Arbitrators omitting or declining or ceasing to act as such, the
President of the United States, or Her Britannic Majesty, or His
Majesty the King of Italy, or the President of the Swiss Confed-
eration, or His Majesty the Emperor of Brazil, as the case may be,
may forthwith name another person to act as Arbitrator in the
place and stead of the Arbitrator originally named by such head
of a State.

* * And in the event of the refusal or omission for two months
after receipt of the request from either of the high contracting
parties of His Majesty the King of Italy, or the President of the
Swiss Confederation, or His Majesty the Emperor of Brazil, to
name an Arbitrator either to fill the original appointment or in
the place of one who may have died, be absent, or incapacitated,
or who may omit, decline or from any cause cease to act as such
Arbitrator, His Majesty the King of Sweden and Norway shall be
requested to name one or more persons, as the case may be, to
act as such Arbitrator or Arbitrators.' ' Treaties and Conventions
concluded between the United States of America and other Powers
since July 4, 1776. Department of State. Washington : Gov-
ernment Printing Office, 1889, page 479.

52 THE ALABAMA ARBITRATION.

long abroad that I had become *a Britisher/

Not encouraging for my idea of a mild-mannered way
of cutting the knot of difficult national questions."
Still Mr. Balch did not despair, and continued to work
among his friends and acquaintances, both at home
and abroad, and soon he found in Professor James
Lo rimer, of the University of Edinburgh, and Pre-
vost-Paradol, of V Academie Frangaise, two powerful
helpers.^

** James Lorimer, Regius Professor of Public Law and of the
Law of Nations in the University of Edinburgh, was born in
1818 and died in 1890. He was a founder of V Institut de Droit
International, and the author of The Institutes of Law as de-
termined by the Principles of Nature (1872), The Institutes of
the Law of Nations: A Treatise of the Jural Relations of
Separate Political Communities (1883-84), and several other
valuable books on social science and international law. Lucien
Anatole Pr^vost-Paradol, the brilliant author of Quelques Pages
d^ Histoire Contemporaine (i 862-1 866) and La France Nouvelle
(1868), and a member of V Academie Frangaise, was the leading
writer in the Journal des Debats against the Empire. In the days
of the Imperial censorship, as some one said, " Pr6vost-Paradol
excellait avec J. J. Weiss dans Tart de tout faire entendre sans
tout exprimer." Subsequently, when Ollivier assumed the re-
sponsibilities of Government under the liberal Empire, Pr^vost-
Paradol accepted the post of Minister to Washington.

CHAPTER III.

On August 30th, 1865, Earl Russell in a long re-
view of the acts and rights of the two Governments
in the controversy between them, referred to Mr.
Adams's remark upon arbitration in the latter's letter
of October 23d, 1863, and said: —

"In your letter of October 23, 1863, you were
pleased to say that the Government of the United
States is ready to agree to any form of arbitration.

" Her Majesty's Government have thus been led to
consider what question could be put to any Sovereign
or State to whom this very great power should be
assigned.

"It appears to Her Majesty's Government that
there are but two questions by which the claim of
compensation could be tested. The one is : Have
the British Government acted with due diligence, or,
in other words, with good faith and honesty, in the
maintenance of the neutrality they proclaimed ? The
other is : Have the Law Officers of the Crown prop-
erly understood the Foreign Enlistment Act when
they declined, in June 1862, to advise the detention
and seizure of the * Alabama' and on other occasions

(53)

54 THE ALABAMA ARBITRATION.

when they were asked to detain other ships build-
ing or fitting in British ports ?

"It appears to Her Majesty's Government, that
neither of these questions could be put to a foreign
Government with any regard to the dignity and char-
acter of the British Crown and the British nation.

**Her Majesty's Government are the sole guardians
of their own honor. They cannot admit that they
may have acted with bad faith in maintaining the neu-
trality they professed. The Law Officers of the Crown
must be beld to be better interpreters of a British
statute than any foreign Government can be presumed
to be. Her Majesty's Government must therefore
decline either to make reparation and compensation
for the captures made by the 'Alabama' or to refer
the question to any foreign State.

'' Her Majesty's Government conceive that if they
were to act otherwise, they would endanger the posi-
tion of neutrals in all future wars.

" Her Majesty's Government are, however, ready
to consent to the appointment of a Commission to
which shall be referred all claims arising during the
late civil war, which the two Powers shall agree to
refer to the Commissioners." ^^

" The Official Correspondence on the Claims of the United
States in respect to the ''Alabama.'' (Published by Earl Rus-
sell.) London: Longmans, Green & Co., 1867, page 147.

THE ALABAMA ARBITRATION. 55

On September 17th, 1865, Francis Lieber, the inter-
national law publicist, addressed to Secretary Seward
an open letter on arbitration which was printed in the
New York Times, of September 2 2d.^ Mr. Lieber
suggested that the questions at issue should be sub-
mitted to the law faculty of some continental univer-
sity, like Heidelberg or Leyden. His letter was as
follows : —

'INTERNATIONAL ARBITRATION.

**A letter to Hon. William H. Seward, Secretary of State,
by Francis Lieber.

"Dear Sir: Permit me to address to you in the
form of a letter, some remarks on a subject which de-
serves the attention of every American citizen and
every lover of right and progress. You, Sir, at the
head of our foreign affairs, influencing and guiding,
in a great measure, our highest transactions abroad
and at home, will, I respectfully trust, pardon me for
sending forth this letter with your name as that of
its public recipient, since its topic is international
arbitration.

'^ There is a copy of the New York Times of September 22nd,
1865, in the New York Public Library (Astor, Lenox and Tilden
Foundations). For an account of Francis Lieber and his work
see Francis Lieber, by Lewis R. Harley, Ph. D. , New York :
The Columbia University Press, 1899.

56 THE ALABAMA ARBITRATION.

" The United States have large claims upon Great
Britain for the injury done them by the armed vessels
fitted out against them in English ports contrary to
the laws of neutrality. On the other hand it is under-
stood that Great Britain exhibits counter claims against
the United States. The subject is in every respect, a
serious one. How are such claims and counter claims
to be settled?

"International disputes of a grave character can
only be concluded in one of the following four ways :
The discussion may be drawn on for so long a time
that greater questions arise in the course of events,
and the original subject is dropped by its mention be-
ing omitted in a new treaty which may be concluded.
This has happened, indeed, but such a settlement by
default as it were, is not likely to occur again, in mod-
ern times, when the parties at issue are large and
powerful nations, and the subject in question is of
commensurate magnitude.

** Or, the contending governments may diplomati-
cally settle their difficulties and seal the settlement
by special treaty. It is not probable either that
America and England will arrive at a conclusion of
their differences by this means ; certainly not within a
reasonably short time. All protraction, however, of
international difficulties, especially between great
nations destined to have the closest intercourse, is

THE ALABAMA ARBITRATION. 57

both injurious and dangerous. It interferes with the
international spirit of peace, without which a purely-
formal peace, that is mere non-existence of war,
amounts only to international quiescence shorn in a
great measure of the best realities of peace. This
is especially the case with all those nations who ac-
knowledge that the first and perhaps the highest law
of modern extending civilization is the commandment
that there shall be an increasing and widening family
of nations, bound together by the great law of nations.
At any rate this communication is written on the sup-
position that the present English-American disagree-
ment will not be settled by diplomatic transactions,
or cannot thus be concluded within any reasonable
period of time.

'' The third way of stopping international discussion
is war. A discussion may certainly thus be stopped
for a time, but neither party can expect the settlement
of pecuniary claims by rushing into war, since new
claims would necessarily arise, and each belligerent
would be obliged to incur expenditures greater than
any indemnities claimed of the opponent before the
war. Neither ourselves nor the English would expect
to indemnify themselves by conquest, which, more-
over, is generally a poor indemnification, so far as the
settlement of pecuniary claims is concerned. The
enormous sums which Napoleon drew by way of

58 THE ALABAMA ARBITRATION.

* contributions/ from the conquered countries, did
not lessen the heavy taxation in France, made neces-
sary by his wars. Going to war with England on ac-
count of our pecuniary claims would simply amount
to the attempt of killing a fly, crawling on a costly
piece of sevre, by throwing a stone at the insect, from
fear that it may soil the precious vase.

'* There remains, then, arbitration only, as the
fourth method of ending international differences.
International arbitration, freely resorted to by power-
ful governments, conscious of their complete inde-
pendence and self-sustaining sovereignty, is one of
the foremost characteristics of advancing civilization —
of the substitution of reason, fairness and submission
to justice, for defying power or revengeful irritation.
It belongs to modern, indeed to recent times ; yet
although it is a noble characteristic of the more recent
times, it still bears uncouth features of coarser periods,
and demands improvement and development. The
law of nations is awaiting them.

'' The administration of all law may be said to
originate with arbitration, and all law, as it develops
itself further and further, largely returns to courts of
arbitration, justly and beautifully called, in French
and German, Courts of Peace. The Roman civil law
acknowledged arbitration. The courts of arbitration,
with elected and non-professional judges, to whom

THE ALABAMA ARBITRATION. 59

parties voluntarily go to obtain equitable arbitra-
ments, with the exclusion of professional counsel,
have spread all over Prussia, Denmark, and other
countries, settling annually immense amounts in liti-
gation.

" The ancient Greeks, with their many city-states
and confederacies of the same language and religion,
and with a similar culture, knew, if not of interna-
tional, yet of inter -statal arbitration — temporary com-
missions appointed by contending cities, to whose
judgment the parties swore to submit. For, it will
be hardly necessary to state, that the characteristic
feature of these arbitrations is the voluntary sub-
mission of the parties to a freely chosen judge, with
a binding and solemn promise of the litigants to
abide in good faith by his adjudication.

*' That international arbitrament, however, which
consists in a sovereign power chosen by two contend-
ing equally sovereign powers, or by governments rep-
resenting entire nations, rendering judgment, and
this judgment being submitted to in good faith by
two potent sovereigns — this arbitration belongs to the
most recent times, and is considered by international
jurists, and by the students of the history of civiliza-
tion, one of the encouraging signs of real progress.

'* So far, however, monarchs have been almost ex-
clusively chosen as arbiters, which is inconvenient on

6o THE ALABAMA ARBITRATION.

several accounts. It may happen that the parties
may be unable to unite in the election of a monarch
or government, suiting both alike. The present case
between the United States and Great Britain seems
a case in point. We would probably select none but
the Emperor of Russia, if we were at all willing to
submit our case to a European government, and
if we were convinced of a sufficient acquaintance
with the law of nations as well as with maritime
law in the officials of that high military govern-
ment; while Russia, in all probability, would not
suit Great Britain.

''The other and great inconvenience in selecting a
monarch as arbiter is the fact that the only one who
is publicly known as the judge, is the very one who,
in the course of things, does not occupy himself with
the case, cannot do so, and is not expected by any
one to do so.

*' When an international difficulty is brought before
a monarch, or even before the chief representative of
a republic, who is now always the chief executive, what
is the course which things take? The Minister of
Justice, or some similar high functionary, is directed
to take the case in hand ; he appoints some counsel-
lor or other officer, possibly a committee, to make a
report to him, which he lays before the nominal arbi-
ter. Those who really decide the case are unknown,

THE ALABAMA ARBITRATION. 6 1

or at least bear no public, and feel no last responsi-
bility. In many cases of this sort exist the grave
inconvenience and serious inconsistency of handing
over questions of the highest law and most elevated
justice to an executive and not to an authority of judi-
cial renown and responsibility. How much easier
would be the acquiescence in the judgment; how much
more becoming to civilized communities, and how
much nobler in every way would be the selection of
judges from among jurists of a high reputation for
their comprehensive knowledge and unyielding loyalty
to justice and jural truth ! There is, probably, no
fair-minded Englishman or American who would not
submit the whole amount of the claims in question far
more readily to a Hugo Grotius, than to the ruler of
any empire now existing. Still, it may be observed
that there is not always a Hugo Grotius at hand ; nor
can individuals, however unsullied in reputation and
resolute in speaking out what is right, be expected,
in all countries, to be able wholly to separate them-
selves from government pressure. It would be diffi-
cult, in the present state of our civilization, to make
two contending nations agree on a single person,
not a monarch, and assign to a living jurist that
authority which the Congress of Vienna granted,
among others, to Grotius, freely quoted in that great
international council. Nor would it be easy to

62 THE ALABAMA ARBITRATION.

persuade a private individual to serve as umpire,
could the contending parties be made to agree as to
the desirable international judge ; but could they not
be induced to agree to lay the whole subject at issue
before the law faculty of some foreign university, if
both parties are sincerely disposed to obtain only
what is due to them and what is strictly right ? The
members of such a faculty are generally men who
have already made a name which they hope will go
down to posterity in law and its literature ; they know
the whole weight and meaning of a grave decision in
the highest regions of the law, and would be conscious
that in an international case their decision, while
probed and scanned by the foremost intellects of their
race, would pass over as part and parcel into that law
which prevails between independent nations, which is
enforced by equity and reason, and is gradually ex-
tending even beyond that race which happily created
it : for, I am writing this paper, when not only the
Turks, Egypt and Persia have given in their adhesion
to many of the main points of our law of nations, but
when a translation of Wheaton s Law of Nations into
Chinese has arrived in this country, and is now in the
library of your department.

'Tn the present case it is taken for granted that
neither party desires nor hopes to be able to outwit
the other. The American and the English nations are

THE ALABAMA ARBITRATION. 63

too great to descend to diplomatic artifice; and if
there were no objection to such a course or to such
attempts, on the ground of international high-mind-
edness and equity, prudence and expediency alone
would dictate to abandon so unworthy a desire. The
American and English are people at once too clear-
sighted and too stubborn ; too much on a level of in-
tellect and civilization, and they agree too much in
their knowledge and conceptions of justice, law and
fairness, to hope much from diplomatic cunning or
from successful overreaching. But if they really wish
to settle their differences on the principles of law, it
may be asked whether there is a single English-speak-
ing man on this side of the Atlantic, or on the eastern
side, who would doubt that such a faculty of law as
that of the University of Berlin, with the international
jurist Heffter in it ; or if Prussia were considered too
much of a great Power, the law faculty of Heidelberg
or of Leyden would be a fitter body to decide our
differences than any Emperor or any republic. A
republic could not decide the case as a republic, but
must hand it over to some commission. A law
faculty, especially that of a renowned university in a
minor State, seems to form a tribunal fitter than any
other that can be imagined for many, perhaps most, of
the great international cases. It would seem almost
made for so high a function, and the selection of a

64 THE ALABAMA ARBITRATION.

law faculty as a court of international arbitration,
would be a measure worthy of being inaugurated by
the two freest large nations, and whose governments
are to be numbered, in diplomacy, among the least
unreasonable and uncandid ones.

"Let the United States and Great Britain agree
upon the University ; let them obtain the permission
of its government to appeal to the law faculty, which
would doubtless be readily granted; let the two
powers distinctly settle the remuneration which each
in equal shares is to grant to the faculty, excluding
all other immediate or prospective presents or dis-
tinctions ; let each contending party appoint its com-
missioners, as many as each party chooses, and no-
body would doubt that a just judgment would be
obtained.

" The compensation out of place, as it would seem
in an international case, is nevertheless taken into
consideration here, for the reasons that the case at
issue would occupy a very large space of time of the
high judges ; and in order to forestate every particle
of that machinery which consists in part of ribbons
and orders, snuff-boxes and titles, presents of money
or land, direct or prospective. Not that such judges
would be likely to be swayed by means of this kind in
their judgment. That tribunal, with nations for its
clients, would doubtless be conscious of standing, in

THE ALABAMA ARBITRATION. 65

turn, before a greater tribunal — before their pro-
fession in all history ; but all seeming attempt or faint
suspicion of an attempt at lowering so great a court
to common diplomacy ought to be kept far away.

*' Great universities have been appealed to in
former times, though it was generally in theological
matters. Within the different countries, such as
France or Germany, they have indeed been appealed
to, and still are occasionally so, at least in the last
mentioned country, in civil and penal matters. Why
should we not seize upon these institutions, them-
selves characteristic of our own civilization, in inter-
national matters? The adoption of the proposed
plan would be a signal step in the progress of the
race. There is no nobler sight than the strong — be
they single men or nations — ^laying down their
strength like a sword by their side, saying : ' We
will abide by the judgment of the just; let justice
be done.'

" This proposition does not interest my mind by
the charms of novelty. I communicated a similar one
to a prominent statesman in Congress as far back as
the time of the Oregon question, and it was clearly
elicited in my mind when the decision of King Will-
iam of the Netherlands, concerning the northeastern
boundary became known in this country. Circum-
stances did not call for a closer consideration, but I

66 THE ALABAMA ARBITRATION.

now venture to lay it before you, Sir, in a more elab-
orate form, and try to attract the attention of the
public to it through your eminent name.

"Whether the two nations to whom the spread of
civilization over the globe has been assigned more
than to any other people, will accept this way of
settling differences in the present case or not, there is
no doubt in my mind that the Cis-Caucasian race will
rise, at no very distant day, to the selection of such
umpires, far more dignified than a crowned arbitrator
can be.

'* I have the honor to subscribe myself, with the
highest regard,

**Your very obedient servant,

-FRANCIS LIEBER.

"Washington, D. C, Sept. 17, 1865."

On September 27th, 1865, five days after the pub-
lication of Mr. Lieber's letter to Secretary Seward,
the latter wrote to Mr. Adams : —

"In a note of yours to Earl Russell, written so long
ago as the 23d of October, 1863, in regard to the
difficulties in our relations then developed, you
remarked as follows : ' I am directed to say there is
no fair and equitable form of conventional arbitra-
ment or reference to which they,' the United States,
* will not be willing to submit.'

THE ALABAMA ARBITRATION. fj

** Earl Russell at this late day recalls the friendly
remark thus incidentally made by you, and, manifestly
treating it in the character of a formal proposition for
arbitration still existing, if not newly tendered, states
reasons why such a mode of adjustment would not
be acceptable to her Britannic Majesty's government.
You are authorized, therefore, to say, that whatever
may have heretofore been or might now have been
thought by us of umpirage between the two powers,
no such proposition for arbitration of the existing
differences will henceforward be insisted upon or
submitted to by this government.

" In disallowing our assumed proposition for arbi-
tration, Earl Russell distinctly declares that Her Maj-
esty's government must decline to make reparation
or compensation for the captures which were made
by the Alabama,

" Nevertheless, Earl Russell announces that Her
Majesty's government are ready to consent to the
appointment of a commission, to which should be re-
ferred all claims which have arisen during our civil
war, and which the two powers should agree to refer
to the commission.

"Earl Russell is understood by us, in submitting
this proposition, as implying, that among those claims
which Her Britannic Majesty's government would not
agree to refer to such a joint commission are the

68 THE ALABAMA ARBITRATION.

claims heretofore presented in behalf of American
citizens or others for redress and reparation in cases
of captures and spoliations made by the Alabama, and
other vessels of her class, including even the Shenan-
doah, now still engaged in the same work of depreda-
tion, which piratical vessels, as is alleged by the United
States, were fitted out, manned, equipped, and de-
spatched by British subjects in British ports." ^^

Earl Russell, on October 14th, 1865, i^^ ^ supple-
mentary letter to Mr. Adams, further explained his
proposal, in his letter of August 30th preceding, for
the appointment of a Commission. The English
Foreign Secretary said : —

"Foreign Office, Oct. 14, 1865.

** Sir : — I have thought it best to wait for the answer
to the reference you have made to your Government
before replying to your last letter.

"■ But I observe that you have not clearly under-
stood my proposal for the appointment of a Com-
mission.

"- That proposal is made in the following terms : —

'' ' Her Majesty's Government are ready to consent

^^ Papers relating to Foreign Affairs accompanying the Annual
Message of the President to the First Session Thirty-ninth Con-
gress. Parti. Washington : Government Printing Office, 1866,
page 565.

THE ALABAMA ARBITRATION. 69

to the appointment of a Commission to which shall
be referred all claims arising during the late civil
war which the two Powers shall agree to refer to
the Commissioners/

"There are, I conceive, many claims upon which
the two Powers would agree that they were fair sub-
jects of investigation before Commissioners.

''But I think you must perceive that, if the United
States Government were to propose to refer claims
arising out of the captures made by the Alabama and
Shena7idoah to the Commissioners, the answer of Her
Majesty's Government must be, in consistency with
the whole argument I have maintained, in conformity
with the views entertained by your Government in
former times.

" I should be obliged, in answer to such a proposal,
to say — ' For any acts of Her Majesty's subjects com-
mitted out of their jurisdiction, and beyond their con-
trol, the Government of her Majesty are not respon-
sible.'

" I should S9.y further, that the appointment of a
Commission for such purpose would not be consistent
with any practice usual among civilized nations, and
that it is a principle well known and well understood
that no nation is responsible for the acts of its citizens
committed without its jurisdiction, and out of the
reach of its control.

70 THE ALABAMA ARBITRATION.

" I should have cleared up this point before, but I
thought that the words * which the two Powers shall
agree to refer to the Commissioners * would put an
end to any doubt upon the subject. I am, &c.,

- RUSSELL."^

On October 17th, 1865, Mr. Adams replied to
Earl Russell's letters of August 30th and October
14th as follows : —

"Legation of the United States,

"London, October 17, 1865.

"My Lord, — I have the honor to acknowledge
the reception of your note of the 14th instant, ex-
planatory of some portions of a preceding one dated
August 30 last.

" This has reached me just in season to enable me
to dispense with the necessity of soliciting precisely
that information. For although the Government
which I have the honor to represent had already
understood your Lordship's note as substantially in
the same sense, it has instructed me to ask the con-
firmation of it which has now been supplied.

*^The Official Correspondence on the Claims of the United
States in respect to the ''Alabama.'' (Published by Earl Russell.)
London: Longmans, Green & Co., 1867, page 165.

THE ALABAMA ARBITRATION. 7 1

" I am now directed to inform your Lordship that
the contents of your note of August 30 have re-
ceived the most careful consideration.

"With regard to the reference which you were
pleased to make to a friendly remark contained in the
note which I had the honor to address to your Lord-
ship on October 23, 1863 — ^apparently considering it
in the light of a formal proposal for arbitration — I
am now desired, in view of the reasons given by your
Lordship why such a mode of adjustment would not
be acceptable to Her Majesty's Government, to state
that, whatever may have heretofore been, or might
now be, thought by the President of umpirage be-
tween the two Powers, no proposition of that kind for
the settlement of existing differences will hencefor-
ward be insisted upon, or submitted on the part of
my Government.

*'The proposal of some form of Commission made
by your Lordship still remains under consideration.
To the end that my Government may be the better
enabled to make a satisfactory reply to it, I am still
under the necessity of soliciting more information in
regard to the precise nature of the claims which Her
Majesty's Government is disposed to agree to con-
sider. I am instructed to venture so far as to ask the
favour of your Lordship to distinguish as well what
among the classes of claims it is willing, and what it

72 THE ALABAMA ARBITRATION.

would not be willing, to refer to the proposed Com-
mission.— I pray, &c.

-CHARLES FRANCIS ADAMS.'"^

A month later, Mr. Adams declined in behalf of
his Government, Earl Russell's proposal to submit
some of the claims pressed by each Government
against the other to the consideration of a joint
commission. Writing to the Earl of Clarendon,
Mr. Adams said: —

** Legation of the United States,

** London, November 21, 1865.

'' My Lord, — I have the honor to inform your
Lordship that the notes elicited by the proposal for
a Commission to consider certain classes of claims
growing out of the late difficulties in the United
States, made by your predecessor, the Right Honor-
able Earl Russell, in his letter addressed to me on
August 30 last, have received the careful considera-
tion of my Government.

"Adhering, as my Government does, to the opinion
that the claims it has presented, which his Lordship

** The Official Correspondence on the Claims of the United
States in respect to the ''Alabama^ (Published by Earl Russell.)
London : Longmans, Green & Co., page 166.

THE ALABAMA ARBITRATION. 73

has thought fit at the outset to exclude from consid-
eration, are just and reasonable, I am instructed to
say that it sees now no occasion for further delay in
giving a full answer to his Lordship's proposition.

''I am directed, therefore, to inform your Lordship
that the proposition of Her Majesty's Government
for the creating of a joint Commission is respectfully
declined. I pray, &c.

-CHARLES FRANCIS ADAMS." ^^

*^ The Official Correspondence on the Claims of the United States
in respect to the ''Alabama.'' (Published by Earl Russell.)
London : Longmans, Green & Co., page 223.

CHAPTER IV.

There was a growing, uneasy feeling in England
that Earl Russell's abrupt and absolute refusal to
discuss the question of liability by England for the
Alabama claims was a mistake.*^ In this view the
English were confirmed by the visit at several of their
ports of the double-turretted monitor, Mtantonomoh,'^
She crossed the Atlantic without trouble, bearing to
Russia on a special mission the Hon. Gustavus Vasa
Fox, the Assistant Secretary of the Navy. English
naval experts freely acknowledged that there was no
ship in the English navy that could compete with the

" This was evidenced in a letter, supposed to be written by Mr.
Olyphant, a member of Parliament, who had traveled in the
United States in 1865, that appeared in the London Times on
August 20th, 1866. It treated of the neutrality laws ; and, after
referring to the strong feeling of resentment that existed in the
United States against Great Britain on account of the fitting out
of the Confederate cruisers in English ports, deplored the rejec-
tion by Lord Russell of all attempts to settle the difficulties by
arbitration.

^Narrative of the Mission to Russia, in 1866, of the Hon.
Gustavus Vasa Fox, New York : D. Appleton & Company,
1873, pages 39, 40, 43.

(74)

THE ALABAMA ARBITRATION. 75

Miantonomoh ; and as there were a number of others
like her in the United States Navy, Great Britain, at
that time, was not mistress of the seas. An article in
the London Times, of July 17th, 1866, showed well
the impression the Miantonomoh made upon Eng-
land : —

''The royal visitors at Sheerness on Saturday, as
well as the numerous pleasure-parties flocking thither
on the same errand, saw a very extraordinary, and —
we wish we could not feel it — a portentous spectacle.
They saw a fabric, something between a ship and a
diving-bell — the Romans would have called it a tor-
toise— almost invisible, but what there was of it ugly,
at once invulnerable and irresistible, that had crossed
the Atlantic safely, and was anchored in our waters,
with the intention of visiting Russia. Round this
fearful invention were moored scores of big ships, not
all utter antiquities, but modern, for there were among
them steamships, generally screws, and therefore none
of them more than twenty years old. These ships
form a considerable portion of the navy of this great
maritime power, and there was not one of them that
the foreigner could not have sent to the bottom in five
minutes, had his errand not been peaceful. There
was not one of these big ships that could have
avenged the loss of its companion, or saved itself
from immediately sharing its fate. In fact, the wolf

76 THE ALABAMA ARBITRATION.

was in the fold, and the whole flock was at its
mercy." ^

The advisability of reopening the subject became
by the latter half of 1866 a topic of general discus-
sion in the English press ; and the Government —
Lord Stanley had succeeded Earl Russell as For-
eign Secretary — was understood to favor an amica-
ble settlement of the question. The Prime Minis-
ter, Earl Derby, gave countenance to such a view
in a speech at the Mansion House.'*^ The Times in
several leaders supported the view that Earl Russell
had rejected Mr. Adams's demands on rather narrow
grounds, and urged that the claims were '' not for-
gotten by the American people," and that they never
would be forgotten until they were submitted to
'' some impartial adjudication." *^

Meanwhile Lord Stanley instructed the British
Minister at Washington to propose to the American
Government a limited form of arbitration : this dis-

" Narrative of the Mission to Russia^ in 1866^ of the Hon.
Gustavus Vasa Fox. New York : D. Appleton & Company,
1873, pages 48, 49.

*^ Papers relating to Foreign Affairs, accompanying the Arinual
Message of the Preside7it to the Second Session, Fortieth Congress.
Government Printing Office, 1868, part I., page 25.

*^ The London Times, November 17th, 1866; January 4th,
1867.

THE ALABAMA ARBITRATION. 77

patch, which was as follows, the English Minister,
Sir Frederick Bruce, communicated to Mr. Seward
on January 7th, 1867 : —

"Foreign Office, November 30, 1866.
******
"It is impossible for Her Majesty's present ad-
visers to abandon the ground which has been taken
by former Governments, so far as to admit the liabil-
ity of this country for the claims then and now put for-
ward. They do not think that such liability has been
established according to international law or usage ;
and though sincerely and earnestly desiring a good
understanding with the United States, they cannot
consent to purchase even the advantage of that good
understanding by concessions which would at once
involve a censure on their predecessors in power,
and be an acknowledgment, in their view uncalled
for and unfounded, of wrong-doing on the part of the
British Executive and Legislature. But, on the other
hand, they are fully alive to the inconvenience which
arises from the existence of unsettled claims of this
character between two powerful and friendly Govern-
ments. They would be glad to settle this question,
if they can do so consistently with justice and national
self-respect ; and with this view they will not be dis-
inclined to adopt the principle of arbitration, provided

78 THE ALABAMA ARBITRATION.

that a fitting arbitrator can be found, and that an
agreement can be come to as to the points to which
arbitration shall apply.

**Of these two conditions, the former need not be
at present discussed : the latter is at once the more
important and the more pressing.

'* With regard to the ground of complaint on which
most stress is laid in Mr. Seward's despatch, viz., the
alleged premature recognition of the Confederate
States as a belligerent Power, it is clear that no refer-
ence to arbitration is possible. The act complained
of, while it bears very remotely on the claims now in
question, is one as to which every State must be
held to be the sole judge of its duty ; and there is, so
far as I am aware, no precedent for any Government
consenting to submit to the judgment of a foreign
Power, or of an international Commission, the ques-
tion whether its policy has or has not been suitable
to the circumstances in which it was placed.

**The same objection, however, does not neces-
sarily apply to other questions which may be at issue
between the two Governments in reference to the
late war; and with regard to these, subject to such
reservations as it may hereafter be found necessary to
make, I have to instruct you to ascertain from Mr.
Seward whether the United States' Government will
be prepared to accept the principle of arbitration, as

THE ALABAMA ARBITRATION. 79

proposed above. Should this offer be agreed to, it
will be for Mr. Seward to state what are the precise
points which, in his opinion, may be, and ought to be,
so dealt with. Any such proposal must necessarily
be the subject of deliberate consideration on the part
of Her Majesty's Government ; but they will be pre-
pared to entertain it in a friendly spirit, and with the
sincere desire that its adoption may lead to a renewal
of the good understanding formerly existing, and as
they hope, hereafter to exist, between Great Britain
and the United States.

" I am, &c.,

- STANLEY." ^

January 12th, 1867, Mr. Seward wrote to Mr.
Adams that the United States would not object to
arbitration if the British Government desired it, but it
declined arbitration with the limitations that Lord
Stanley imposed.*^

At the request of Professor James Lorimer of the
University of Edinburgh, Mr. John Westlake — a prom-
inent member of the English Bar and the Foreign

*^A Historical Account of the Neutrality of Great Britain
during the American Civil War by Mountague Bernard. Lon-
don: Longmans, Green, Reader & Dyer, 1870, page 483.

*• Papers relating to Foreign Affairs accompanying the Annual
Message of the President to the Second Session, Fortieth Congress,
Washington : Government Printing Office, 1868, part L, page 45.

80 THE ALABAMA ARBITRATION.

Secretary of the National Association for the Promo-
tion of Social Science — had reprinted — March 15th,
1867, i^ Social Science^ the bi-monthly publication of
the association — the letter that Mr. Thomas Balch of
the Philadelphia Bar, had addressed on March 31st,
1865, to the New York Tribune and which was
printed in that journal on May 13th following.

The editor of Social Science placed it under the
title, '' England and the United States," and said :
** We have been asked to re-publish the following im-
portant letter, addressed to the editor of the New
York Tribune!' Among the members of the associa-
tion in 1867, were the Right Hon. Sir Stafford North-
cote, Bart., M. P., one of the negotiators of the Treaty
of Washington (1871), Earl Russell, Lord Brougham,
John Stuart Mill, M. P., John Laird, M. P. (formerly
of Laird Brothers, the builders of the Alabama), and
many other members of Parliament, David Dudley
Field of the New York Bar, and Baron von Holtzen-
dorff of Berlin. Soon after the republication of the
letter in Social Science, a number of continental ju-
rists— Edouard Laboulaye, Henry Moreau,^^Friederich

^Social Science, March 15th, 1867, pages 201, 202 ; there is a
copy in the British Museum.

" ''Paris 9 Oct. 1874.

"370 rue St. Honor6.
"My dear Balch, — Many thanks for your kind souve-
nir. I perused with the greatest interest and satisfaction your

THE ALABAMA ARBITRATION. 8 1

Kapp, von Holtzendorfif and others — approved Mr.
Balch's proposal to refer the ''Alabama claims " to
the decision of an International Court of jurists.^ Mr.
George H. Yeaman, then the United States Min-
ister at Copenhagen, also favored the idea.^ At the

remarkable pamphlet on International Courts of Arbitration^ and
found you have given full evidence o{ yoxxr paternal right on this
service which ended so happily both for America and England,
the quarrels springing from the Alabama matter and the San
Juan Boundaries. I thank you also for having mentioned my
name in such an honorable company, with the publicists who
have illustrated the dark points of International Law.

''HENRY MOREAU,

''Avocat a la cour d' Appel.'^

This letter of Henry Moreau is written in English. Monsieur
Moreau was a distinguished member of the Paris Bar, of the
Society de la Legislation Compar^e, and the author of La Poli-
tique Fran false en Amerique, 1861-1864. (Paris, 1864).

^^International Courts of Arbitration. Edition of 1899,
page 15.

^ Mr. Yeaman sent the following letter to Mr. Balch : —
''Legation of the United States,

"Copenhagen, 26 March, 1867.

" Dear Sir : — I have read with much interest your letter of
the 13 May, 1865, to the Editor of the New York Tribune, and
now republished in the ' Social Science ' for this month, which
you have kindly sent me. In that letter you propound what
seems to you the best method of amicably settling the pending
controversies between the United States and Great Britain.

* ' Omitting all discussion of the propriety and feasibility of now

82 THE ALABAMA ARBITRATION.

eleventh annual meeting of the Association, that was
held at Belfast in September, 1867, one of the subjects
discussed was : " Is it desirable to establish a general
system of International Arbitration, and if so on what
principle should it be organized?" Mr. Field presided

referring the matters in dispute to arbitration, the mode you ad-
vocate, I only desire to express my decided approbation of your
suggestion as to the mode of selecting and organizing tribunals of.
arbitration, in cases where the powers interested agree to a refer-
ence. That the tribunal or arbiter shall not be the executive head
of a government, but a small number of jurists of acknowledged
character and learning.

* ' I have never believed in the durability and efficacy of any
of the schemes for an international tribunal to settle all disputes
and prevent all wars. Whether it is well or unfortunate, it is
quite clear that in the present stage of the development and
practice of political science, there can be no reference but by
agreement, and the agreement must be had in each case as it
arises, and the tribunal or arbiter must be selected for the occa-
sion.

* * While this remains the only practicable mode of securing the
benefits of a reference, every sound reason is against the ordinary
plan of selecting a crowned, or other executive head of a govern-
ment, and sustains the plan of selecting a tribunal composed of
those who make the understanding and the elucidation of law, in
its largest sense as the science of justice, the study of their lives.

" It is no disparagement of those generally found at the heads
of the executive governments of the civilized world, to say that
they are not generally those best acquainted with jurisprudence ;
and that every government, of whatever form, nearly always con-
tains within its limits, a number of jurists more learned in their
profession and better qualified by their habits of thought to con-
duct such an investigation than the executive head of that govern-

THE ALABAMA ARBITRATION. 83

over the debate of this question. Lord Hobart and
David Ross of the British Bar read papers ; a number
of members joined in a general discussion of the sub-
ject ; and Mr. Field at the close summed up the de-
bate. In speaking of the possibilities of finding arbiters

ment. Neither is it any impeachment of their probity or their
desire to render a just judgment to say that executive rulers, are,
from their position, more apt to be influenced by motives of
policy, or of personal or political partiality, than a court of inter-
national jurists would be ; while some, who might render real
service in that capacity, would occasionally decline to act on ac-
count of the delicate embarrassment in which any action might
involve them. And those who consent to act, no doubt often re-
fer the case, for investigation and advice, to a subject of their own
selection, one unknown to the parties, at least not agreed upon
by them ; and though the award may come formally as from the
crown, it is really the opinion of some person not embraced in the
reference and who neither incurs blame nor makes reputation by
his judgment. Thus the parties are put in the position of abiding
by the award of one selected for them by another ; they know not
what influenced the selection, and however learned the advisor may
be, the parties have not had the advantage of a consultation and
comparison of views. These objections manifestly do not apply
to the case of an umpire selected in advance by referees in view
of the possibility of their own disagreement.

* ' Thus the advantages of learning, and of freedom from all
improper influences are on the side of a select committee or board
of jurists. From their breasts selfishness, jealousy, partiality
and refined policy, as applied to the matter before them, are
all excluded. They work out their conclusions in the light of
usage, precedent, right reason, natural right, science. What of
ambition they may have is constrained to be innocent and lauda-
ble, for it can only be gratified by building a reputation, which, in

84 THE ALABAMA ARBITRATION.

Other than crowned heads or executives of Republics,
he referred to the proposals of Mr. Balch and Mr.
Lieber. Mr. Field said : ** I think we may say that it
is agreed on all hands that it is desirable there should
be a system of arbitration, and if a system of arbitra-
tion, a general one, by which, I suppose, is meant that

their vocation, can have no other foundation than justice and
truth. The judgments of such tribunals would be sought for and
recognized as the highest evidence of what the law is ; and they
would develop, polish, and make symmetrical the law of nations,
as the judgments of Hardwick, Eldon, and Mansfield have done
the law of England, and as the judgments of Kent, Marshall and
Story have done the law in the United States.

* * I have been much impressed with your observation that this
* would be no trifling event in the march of Democratic Freedom.'
It would accelerate and illustrate the progress of democratic free-
dom, a freedom that is far more secure against license than any
scheme of personal government or irresponsible power can be,
because it would be a tribute to the domination of mind, intelli-
gence, reason, science, over accident, force and tradition in the
affairs of men. The struggle for that domination is the begin-
ning, and its full consummation is the highest and fairest fruit of
democracy. If that element in government has been the most
rare and the least successful, it is because that while appearing to
be the most simple, it is really the most difficult, and it is the
most difficult because the conditions of its success are the highest
and the least frequent among men.

"Very respectfully,

' * Your obedient servant

"GEO. H. YEAMAN.
' ' Thomas Balch, Esq. ,
"Paris."

THE ALABAMA ARBITRATION. 85

it should be agreed among civilized nations that war
should not take place between them until they had
offered to submit the matter in disagreement to an
impartial arbiter. Then it is said, however, how is an
impartial arbiter to be found? I will say that it seems
to me we are not confined in that to princes or gov-
ernments. In this very matter of the Alabama, it has
been suggested that, if arbitration is agreed upon, the
question should be referred to the arbitration of the
most eminent jurists in the German universities,^ as
persons having the requisite knowledge, as having by
their position no cause for partiality, and as having
characters to maintain, which will be guarantee for the
efforts they will make to give a just decision. It has
also been suggested that in the dispute between Eng-
land and America relative to the Alabama, the Gov-
ernment of Switzerland should be arbiter.^^ I am
confident impartial persons can be found somewhere
in the world to decide between two nations."^

The English press gave the subject more and more
attention. At the end of January, 1868, Mr. Westlake

^Seepage 63.

^See page 48.

" For the discussion, including the remarks of Mr. Field, see
Transactions of the National Association for the Promotion of
Social Science. Belfast Meeting, 1867. Edited by G. W.
Hastings, LL. D., London, 1868, pages 254-259.

86 THE ALABAMA ARBITRATION.

wrote a long letter upon "the Alabama Claims" to
the Editor of the London Daily News ;^^ it was pub-
lished in that paper on January 24th, and was as
follows : —

"The Alabama Claims.

** Zi? the Editor of the Daily News,

"Sir — Will you allow me a few words about the
Alabama Claims ? Whether the principle of arbitra-
tion should have been admitted is, perhaps, not quite
so clear as its advocates suppose, but, since our
Foreign Secretary has admitted it, I apprehend that
both the honor and the interests of the country re-
quire that such admission should not be practically
withdrawn, through a difference about the form of the
issues, which I believe might be easily settled, if
some misapprehension that still seems to exist about
them were removed.

"In whatever form the reference be made, the
points for the arbiter to consider, if he is to give a
just deliverance, are these : —

"I. Is England liable to the United States in
damages for the sailing of the Alabama from the
Mersey ?

"2. Are those countries which received the Ala-

"The London Daily News, Friday, January 24th, 1868, page
5, columns 2 and 3 : there is a copy in the British Museum.

THE ALABAMA ARBITRATION. 87

bama in their ports liable to the United States in
damages for so doing?

"3. If the general answer to the second question
should be in the negative, then does it make any dif-
ference in the case of England that the expedition of
the Alabama from Liverpool was an offense against
England on the part of the so-called Confederate
States? That is, was it competent to England, as
against the United States, to condone that offense,
instead of avenging it by arresting the Alabama?

** 4. If any of the above questions should be an-
swered in favor of the claimants, then to assess the
damages payable by England, having a special refer-
ence to the second question, and to the facts as to the
ports in which the Alabama was received.

" Now, it is supposed that, while upon the second
question, the arbitrator would have to decide on the
propriety of the Queen's proclamation, by which the
fact of a war existing in America was recognized ; and
it is said to be derogatory that we should submit the
policy of this country to any such decision. I will first
observe that it is not the propriety in policy of the
Queen's proclamation, but its justifiableness in law,
that can even indirectly come in question ; and if it
is derogatory to refer that point, then it must also
be derogatory to refer the justifiableness in law of
those acts of omission through which the British

88 THE ALABAMA ARBITRATION.

government is charged with having rendered the
Alabama s escape from the Mersey possible. But,
further, the proclamation can, upon the second ques-
tion, in no way come before the arbitrator at all, not-
withstanding that his decision may indirectly show
what he would have thought of it, if it had been
before him. For the deliverance must be, whether
England is liable in damages for receiving the Ala-
bama in British ports ; and one must be ignorant of
the first elements of law to suppose that if England
would have been so liable independently of the proc-
lamation, we can escape such liability by means of
the proclamation, a purely British act to which the
United States were not a party. The law officer,
secretary of state, or minister, who may be charged
with preparing the British case to be laid before the
arbitrator, will have to show a similar state of facts to
that which, on this side of the Atlantic, has always
been deemed to justify the proclamation. I say a
similar, not the same, because he will have this ad-
vantage— that he need not confine himself to the
facts which existed at the date when this proclamation
was issued ; but may include those which existed at
the time when the Alabama was received in British
ports. It will also be open to him to use all those
arguments which, with regard to the proclamation,
have been drawn from the blockade. He may show

THE ALABAMA ARBITRATION. 89

that the United States had captured neutral vessels
beyond a marine league from shore, or within that
distance from the coast of which they were not in
possession, and had also announced that they were
prepared to make such captures, and had by such
announcement interfered with neutral commerce to a
greater extent than even by the captures themselves ;
and he may argue that, as such captures are per-
mitted only by the laws of war, the United States are
estopped from denying that the Alabama was a law-
ful belligerent. In short, the business of our repre-
sentative, so far as concerns the second question, will
be to show that the Alabama bore a lawful belligerent
commission, justifying her reception in neutral ports ;
or, if not, that at least the United States are estopped
from saying that she did not. And if he refers for
this purpose to the Queen's proclamation, not only
will he absurdly pretend to bind the claimants by that
to which they were not a party, but he will abandon
the impregnable ground on which a proclamation
itself has always been justified — namely, that it treated
the Confederates as the belligerents which they were,
but neither did nor could make them belligerents. As
to any chance which there may be of the proclamation
being drawn into question on the first head, as having
incited to the building and sending out of the Alabama y
I think we may safely leave that pretention to the

90 THE ALABAMA ARBITRATION.

summary justice which any honest arbitrator, — and if
we do not believe him honest, we shall not accept
him — will do upon it if it should be put forward. It
would be beneath us to stipulate the exclusion of such
a plea ; besides that, if any one really believes there
is a point in it, we could no more claim to exclude it
than any other point.

**I have already alluded to the question whether the
principle of arbitration should have been admitted in
this case : the considerations which arise on that point
can be appreciated now the issues have been placed
distinctly before the reader. International arbitration
is of great value in disputes of fact, as in boundary
cases ; sometimes also in those cases from which un-
fortunately far the larger number of wars arise, that
do not turn on international law at all ; but on what
some nation deems to be necessary for its honor or
security. It is of use, again, where claims, of which
the principle is admitted, are extravagant in amount,
or are pushed with unnecessary harshness. But it is
a long step to take from those cases, to admit that
arbitration is the true remedy in disputes as to inter-
national law. The law declared on such a reference
would be open to all the objections which lie to judge-
made law in municipal jurisprudence, with the ad-
ditional one of the difficulty in finding a good arbitra-
tor. For instance, if the dispute relates to maritime

THE ALABAMA ARBITRATION. 9 1

law an inland power will not fully appreciate its prac-
tical bearings, and a maritime power will probably,
without actual dishonesty, be influenced by its own
interests, which can hardly fail to be affected by the
question one way or the other. It were much to be
desired that disputes about international law should
be referred to congresses of the great powers, who
might decide them in a legislative rather than a judi-
cial manner.

"The first question in the present case — that of the
liability of a nation to pay damages for an escape like
the Alabama s from the Mersey — is a difficult and not
unimportant legal one. Supposing the arbitrator to
be of opinion that the designs of the British govern-
ment were perfectly fair, and its conduct on the whole
successful in preventing the escape of cruisers, so that
no casus belli existed, he will then have to say whether
the obligation of a nation with regard to the neutrality
of its soil amounts to an absolute insurance of such
neutrality, so that damages may be claimed for a
breach, even though the case be such as would not
justify a war, if damages were offered. If this question
were now raised for the first time it would be much
easier to answer it in the affirmative than it is under
the actual circumstances — that the United States them-
selves repudiated such an obligation when claimed
against them by Portugal, in respect of the captures

92 THE ALABAMA ARBITRATION.

made during the South American civil war, by cruisers
which sailed from their ports. For the point to be re-
ferred to an arbitrator instead of being declared or en-
acted in Congress, is the same thing as if a colony,
instead of deciding in legislative assembly whether
Lord Campbell's Act, whereby the liabilities of rail-
way companies were so greatly increased, should be
adopted, were, after the occurrence of numerous ac-
cidents, suddenly to refer the question of its adoption
to the decision of an arbitrator on the next accident.
The third question is also a legal one of novelty and
difficulty, and may turn out to be the most important
in the reference. But in the present case it appears
to me to be now too late to put forward these con-
siderations, though note may be taken of them for
the future. A reference of the Alabama claims was
refused by Earl Russell, on grounds which can
hardly be deemed satisfactory, and has since been
conceded in substance by Lord Stanley. It is not
likely that the reference of legal questions to an arbi-
trator, wrong as it may be in principle, will in the
actual instance lead to great mischief. The issues
are not really difficult to settle, and involve nothing
derogatory to England. The proclamation about
which so much has been said is not direcdy involved,
while an indirect judgment on it is so necessarily in-
volved in the question of the Alabama s commission,

THE ALABAMA ARBITRATION. 93

as justifying her reception in British ports, that it can-
not be evaded if the claims are to be referred at all.
The only practical questions, then, which appear to
me to remain, are those of settling the form of the
reference and choosing the arbitrator; and to these I
earnestly desire that both governments should address
themselves with all candor and sincerity. Let the
issues be clear, precise, and appropriate, so the deliv-
erance of them will most tend to take out the sting
from the feelings of both sides, and to leave interna-
tional law, and the habits of conducting international
relations, in a better plight and condition than that in
which they were found.

** I am, &c.,

-JOHN WESTLAKE.^
**Lincoln's-Inn, Jan. 23."

^ John Westlake, Q. C, since 1888 Professor of International
Law in Cambridge University, published in 1858 A Treatise on
Private International Law, or the Conflict of Laws, which he
rewrote entirely in 1880 ; in 1894 he published Chapters on the
Principles of International Law. He was the Foreign Secretary
of the National Association for the Promotion of Social Science,
and President of its Jurisprudence Department at the Birmingham
meeting in 1884. He is a member, and was President at the
Cambridge meeting in 1895, of V Institut de Droit International.

CHAPTER V.

On the 6th of March, 1868, there was a debate
in the House of Commons on the Alabama claims.
Mr. Shaw-Lefevre (Liberal), who during the Civil
War sympathized with the Union cause, moved
an address calling for the publication of papers
relating to the Alabama claims. The Foreign Sec-
retary, Lord Stanley, Mr. W. E. Forster, Mr.
Mill and most of the members who spoke, fa-
vored, at the same time that they insisted on the
safeguarding of the rights of England, the adop-
tion of a conciliatory policy towards the United
States.^^

In June, 1868, President Johnson appointed Mr.
Reverdy Johnson, of Maryland, to succeed Mr. Adams
who had resigned in December, 1867, but had con-
tinued until May, 1868, at the post he had filled
with such marked ability and success, and main-
tained during the course of difficult negotiations
the high diplomatic traditions left him by an hon-
ored sire and grandsire. Mr. Johnson arrived in

"The London Times, March 7th, 1868, page 6.

(94)

THE ALABAMA ARBITRATION. 95

England with instructions to seek for an amicable
arrangement of several vexatious questions, such
as naturalization and the San Juan water boundary,
then existing between the two countries. He ne-
gotiated for many months with Lord Stanley and
his successor in the Foreign Office, Lord Claren-
don. At length, on January 14th, 1869, the John-
son-Clarendon convention providing for the settlement
of the Alabama claims was signed. It provided that a
commission of four members should sit at Washington,
that each power should name two commissioners, that
all the claims of subjects of either country against the
other nation should be submitted to the four commis-
sioners ; and that if in any case the commissioners
failed to come to an agreement, they should choose
an umpire, but if they did not agree in their selection,
then each side should name an umpire, and then from
these two persons an umpire should be chosen for
each particular case in which the commissioners failed
to agree.

When the convention came up for ratification in the
United States, it met with strong opposition. Charles
Sumner, Senator from Massachusetts, the Chairman
of the Committee on Foreign Affairs, delivered, in ex-
ecutive session, on April 13th, 1 869, a strong speech
against ratifying the convention. Senator Sumner
first of all said, that the Committee would not hesitate

9^ THE ALABAMA ARBITRATION.

to advise the Senate to reject the treaty and then he
went on to say : — ^

" A treaty which, instead of removing an existing
grievance, leaves it for heart-burning and rancor, can-
not be considered a settlement of pending questions
between two nations. It may seem to setde them, but
does not. It is nothing but a snare. And such is
the character of the treaty now before us. The mas-
sive grievance under which our country suffered for
years is left untouched ; the painful sense of wrong
planted in the national heart is allowed to remain.
For all this there is not one word of regret or even of
recognition ; nor is there any semblance of compensa-
tion. It cannot be for the interest of either party
that such a treaty should be ratified. It cannot pro-
mote the interest of the United States, for we natur-
ally seek justice as the foundation of a good under-
standing with Great Britain ; nor can it promote the
interest of Great Britain, which must also seek a real
settlement of all pending questions. Surely I do not
err when I say that a wise statesmanship, whether on

^ Appendix to the Congressional Globe : Containing Speeches y
Important State Papers and the Laws of the First Sessio?i, Forty-
first Congress. City of Washington : Office of the Congressional
Globe, 1869, pages 21-26, passim.

Speech of Hon. Charles Sumner on the fohnson- Clarendon
Treaty for the Settlement of Claims. Delivered in the U. S.
Senate. Boston, 1870.

THE ALABAMA ARBITRATION. 97

our side or on the other side, must apply itself to find
the real root of evil, and then, with courage tempered
by candor and moderation, see that it is extirpated.
This is for the interest of both parties, and anything
short of it is a failure.

**If we look at the negotiation, which immediately
preceded the treaty, we find little to commend. You
have it on your table. I think I am not mistaken
when I say, that it shows a haste which finds few pre-
cedents in diplomacy, but which is explained by the
anxiety to reach a conclusion before the advent of a
new Administration. Mr. Seward and Mr. Reverdy
Johnson both unite in this unprecedented activity,
using the Atlantic cable freely. I should not object to
haste or to the freest use of the cable, if the result
were such as could be approved; but, considering the
character of the transaction, and how completely the
treaty conceals the main cause of offence, it seems as
if the honorable negotiators were engaged in huddling
something out of sight.

" The treaty has for its model the Claims Conven-
tion of 1853. To take such a Convention as a model
was a strange mistake. This Convention was for the
settlement of outstanding claims of American citizens
on Great Britain, and of British subjects on the
United States, which had arisen since the treaty of

98 THE ALABAMA ARBITRATION.

Ghent in 1815. It concerned individuals only and
not the nation. It was not in any respect political ;
nor was it to remove any sense of national wrong.
To take such a Convention as the model for a treaty,
which was to determine a national grievance of tran-
scendent importance in the relations of two countries,
marked on the threshold an insensibility to the true
nature of the difference to be settled. At once it
belittled the work to be done.

'*An inspection of the treaty shows how from be-
ginning to end it is merely for the settlement of indi-
vidual claims on both sides, putting both batches on
an equality — so that the sufferers by the misconduct of
England may be counterbalanced by British blockade-
runners. It opens with a preamble, which, instead of
announcing the unprecedented question between the
two countries, simply refers to individual claims which
have arisen since 1853 — which was the last time of
settlement — some of which are still pending and re-
main unsettled. Who would believe that, under these
words of common-place, was concealed the unsettled
difference which has already so deeply stirred the
American people, and is destined until finally ad-
justed to occupy the attention of the civilized world?

**The provisions of the treaty are for the trial of
these cases. A commission is constituted, which is

THE ALABAMA ARBITRATION. 99

empowered to choose an arbitrator ; but, in the event
of a failure to agree, the arbitrator shall be deter-
mined *by lot* out of two persons named by each
side. Even if this aleatory proceeding were a proper
device in the umpirage of private claims, it is strangely
inconsistent with the solemnity which belongs to the
present question.^^ The moral sense is disturbed by
such a process at any stage of the trial ; nor is it sat-
isfied by the subsequent provision for the selection of
a sovereign or head of a friendly State as arbitrator.

" The treaty not merely makes no provision for the
determination of the great question, but it seems to
provide expressly that it shall never hereafter be pre-
sented."

Then Summer went on to state the case against
England. He showed how the Civil War began, how

'^Sumner wrote on January 13th, 1867, to George Bemis : —
' ' There are difficulties in the way of finding an arbitrator.
What power would dare to decide against England? What
power would dare to decide against the United States ? Whom
will England accept that we will accept? On another occasion
Lord Lyons told me that England would accept Switzerland, and
I drew up and reported a resolution authorizing the submission.
But the war soon diverted attention, and that resolution was
never acted on. It was on the San Juan difficulty ; but there Eng-
land was anxious simply for a settlement. What say you to a
commission of wise men ? Who shall they be ? Will the country
be contented with such a submission? Seward thinks not."
Memoir and Letters of Charles Sumner, by Edward L. Pierce.
Boston, 1893. Volume IV., page 312.

lOO THE ALABAMA ARBITRATION.

England in hot haste recognized the Confederate
States as belligerents, and how the Alabama was built
and put to sea. He continued : —

**The case is not yet complete. The Alabama,
whose building was in defiance of law, international
and municipal, whose escape was *a scandal and re-
proach,'^^ and whose enlistment of her crew was a fit
sequel to the rest, after being supplied with an arma-
ment and with a rebel commander, entered upon her
career of piracy. Mark now a new stage of com-
plicity. Constantly the pirate ship was within reach
of British cruisers, and from time to time within the
shelter of British ports. For six days unmolested
she enjoyed the pleasant hospitality of Kingston, in
Jamaica, obtaining freely the coal and other supplies
so necessary to her vocation. But no British cruiser,
no British magistrate ever arrested the offending ship,

•' In a letter to Lord Lyons, dated March 27th, 1863, Earl
Russell, in relating a conversation he had with Mr. Adams, wrote
among other things : —

' ' I said that the Cabinet were of opinion that the law [the
English municipal law] was sufficient ; but that legal evidence
could not always be procured. That the British Government
had done everything in its power to execute the law ; but I
admitted that the cases of the Alabama and Oreto were a scandal,
and, in some degree, a reproach to our laws."

The Official Correspondence on the Claims of the United States
in respect to the 'Alabama.' (Published by Earl Russell). Lon-
don : Longmans, Green & Co., 1867, page 67.

THE ALABAMA ARBITRATION. I OX

whose voyage was a continuing ' scandal and reproach '
to the British Government.

** The excuse for this strange license is a curious
technicality, as if a technicality could avail in this case
at any stage. Borrowing a phrase from that master
of Admiralty jurisprudence, Sir William Scott, it is
said that the ship ' deposited ' her original sin at the
conclusion of her voyage, so that afterwards she was
blameless. But the Alabama never concluded her
voyage until she sank under the guns of the Kear-
sarge, because she never had a port of her own. She
was no better than the Flying Dutchman and so long
as she sailed was liable for that original sin, which had
impregnated every plank with an indelible dye. No
British cruiser could allow her to proceed, no British
port could give her shelter, without renewing the com-
plicity of England.

"The Alabama case begins with a fatal concession,
by which the rebels were enabled to build ships in
England, and then to sail them, without being liable
as pirates ; it next shows itself in the building of the
ship, in the armament, and in the escape, with so much
of negligence on the part of the British Government
as to constitute sufferance, if not connivance; and then,
again, the case reappears in the welcome and hospi-
tality accorded by British cruisers, and by the magis-
trates of British ports, to the pirate ship, when her

I02 THE ALABAMA ARBITRATION.

evasion from British jurisdiction was well known.
Thus, at three different stages, the British Govern-
ment is compromised : first, in the concession of ocean
belligerency, on which all depended ; secondly, in the
negligence which allowed the evasion of the ship, in
order to enter upon the hostile expedition for which
she was built, manned, armed, and equipped; and
thirdly, in the open complicity, which, after this evasion,
gave her welcome hospitality and supplies in British
ports. Thus her depredations and burnings, making
the ocean blaze, all proceeded from England, which
by three different acts lighted the torch. To England
must be traced, also, all the wide-spread consequences
which ensued.

"I take the case of the Alabama, because it is the
best known, and because the building, equipment, and
escape of this ship were under circumstances most ob-
noxious to judgment ; but it will not be forgotten, that
there were consort ships, built under the shelter of
that fatal proclamation, issued in such an eclipse of
just principles, and, like the ships it unloosed, * rigged
with curses dark.* One after the other, ships were
built ; one after the other, they escaped on their
errand; and, one after the other, they enjoyed the
immunities of British ports. Audacity reached its
height when iron-clad rams were built, and the per-
versity of the British Government became still more

THE ALABAMA ARBITRATION. IO3

conspicuous by its long refusal to arrest these de-
structive engines of war, destined to be employed
against the United States. This protracted hesitation,
where the consequences were so menacing, is a part
of the case.

*' It is plain that the ships were built under the safe-
guard of this ill-omened proclamation ; which stole
forth from the British shores, and afterward enjoyed
the immunities of British ports, were not only British
in origin, but British in equipment, British in arma-
ment, and British in crews. They were British in
every respect, except in their commanders, who were
rebel, and one of these, as his ship was sinking, owed
his safety to a British yacht, symbolizing the omni-
present support of England. British sympathies were
active in their behalf. The cheers of a British pas-
senger ship crossing the path of the Alabama en-
couraged the work of piracy, and the cheers of the
House of Commons encouraged the builder of the
Alabama^ while he defended what he had done and
exclaimed, in taunt to him who is now an illustrious
member of the British cabinet, John Bright, that he
' would rather be handed down to posterity as the
builder of a dozen Alabamas, than be the author of
the speeches of that gentleman * crying up ' the insti-
tutions of the United States, which the builder of the
Alabama, rising with his theme, denounced ' as of no

I04 THE ALABAMA ARBITRATION.

value whatever and as reducing the very name of
Hberty to an utter absurdity,' while the cheers of the
House of Commons echoed back his words. Thus
from beginning to end, from the fatal proclamation to
the rejoicing of the accidental ship, and the rejoicing
of the House of Commons, was this hostile expedi-
tion protected and encouraged by England. The
same spirit, which dictated the swift concession of
belligerency, with all its deadly incidents, ruled the
hour, entering into and possessing every pirate
ship."

Then Senator Sumner spoke of the reparation due
from England to the United States. He estimated the
losses that the Confederate cruisers inflicted on the
tonnage of the United States at about 5(^15,000,000.
Next he went on to describe the ** national claims "
or '' indirect claims ;" and said : —

*'I refer, of course, to the national losses caused by
the prolongation of the war and traceable directly to
England. Pardon me if I confess the regret with
which I touch this prodigious item ; for I know well
the depth of feeling which it is calculated to stir. But
I cannot hesitate. It belongs to the case. No candid
person, who studies this eventful period, can doubt
that the Rebellion was originally encouraged by hope
of support from England ; that it was strengthened at
once by the concession of belligerent rights on the

THE ALABAMA ARBITRATION. IO5

ocean ; that it was fed to the end by British supplies ;
that it was encouraged by every well-stored British
ship that was able to defy our blockade ; that it was
quickened into renewed life with every report from the
British pirates, flaming anew with every burning ship ;
nor can it be doubted that without British interven-
tion the Rebellion would have soon succumbed under
the well-directed efforts of the National Government.
Not weeks or months, but years were added in this
way to our war, so full of the most costly sacrifice. The
subsidies which in other times England contributed to
continental wars were less effective than the aid and
comfort which she contributed to the Rebellion. It
cannot be said too often that the naval base of the
Rebellion was not in America, but in England. The
blockade-runners and the pirate ships were all Eng-
lish. * * * Mr. Cobden boldly said in the House
of Commons that England made war from her shores
on the United States, 'with an amount of damage to
that country greater than in many ordinary wars.'
According to this testimony, the conduct of England
was war; but it must not be forgotten that this war
was carried on at our sole costs. The United States
paid for a war waged by England upon the National
Unity."

After referring to " the multitudinous blockade-
runners" that issued from English ports and stating

I06 THE ALABAMA ARBITRATION.

the rule of damages in the case, Senator Sumner sum-
marized the case against England thus : —

** Applying this rule to the present case, the way is
clear. Every British pirate was 2. public nuisance, in-
volving the British Government, which must respond
in damages, not only to the individuals who have suf-
fered but also to the National Government, acting as
paterfamilias for the common good of all the people.

** Thus by an analogy of the Common Law, in the
case of a public nuisance, also by the strict rule of the
Roman Law, which enters so largely into International
Law, and even by the rule of the Common Law relat-
ing to damages, all losses, whether individual or
national, are the just subjects of claim. It is not I
who say this; it is the law. The colossal sum-total
may be seen, not only in the losses of individuals, but
in those national losses, caused by the destruction of
our commerce, the prolongation of the war, and the
expense of the blockade, all of which may be traced
directly to England ;

'illud ab uno
' Corpore, et ex una pendebat origine bellum.'

Three times is this liability fixed ; first, by the con-
cession of ocean belligerency, opening to the rebels
ship-yards, foundries, and manufactories, and giving to
them a flag on the ocean ; secondly, by the organiza-

THE ALABAMA ARBITRATION. IO7

tion of hostile expeditions, which, by admissions in
Parliament, were nothing less than piratical war on
the United States with England as the naval base ;
and, thirdly, by welcome, hospitality, and supplies ex-
tended to these pirate ships in ports of the British
empire. Show either of these and the liability of
England is complete. Show the three and this Power
is bound by a triple cord."^^

^ Moorfield Storey, for many years closely connected with Sen-
ator Sumner, says of this speech: —

' * Notwithstanding its few pacific words the speech seemed
hardly calculated to promote a settlement. England had re-
luctantly consented to arbitrate, and now her most conspicuous
friend among American statesmen replied that her concession
was idle, and that the claims of the United States exceeded in
character and magnitude anything that her statesmen, had
imagined possible. In it Sumner took no new position ; his
opinions had already been stated fully, and in fact our govern-
ment had taken the same ground ; but the English had not re-
alized what we meant. As Sumner wrote to Lieber somewhat
later : * I have made no demand, not a word of apology, not
a dollar ! nor have I menaced, suggested, or thought of war.
* * * My object was simply to expose our wrongs as plainly,
but as gently, as possible. * * * Xo my mind our first duty
is to make England see what she has done to us.'

* * Sumner accomplished this object completely. He instructed
England, and he satisfied America.

* ' Two years later Sir Stafford Northcote wrote to Mr. Sumner,
after reading the speech again : ' Though I must own your
speech was somewhat sharp, I verily believe that it taught us a

I08 THE ALABAMA ARBITRATION.

The Senate refused, with only one dissenting vote,
to ratify the treaty. In communicating in a dispatch
of April 19th, 1869, to Mr. Reverdy Johnson the re-
jection of the treaty, Hamilton Fish, the new Secretary
of State, wrote that President Grant was not without
hope that the two countries might yet find an amicable
and satisfactory means of adjusting the controversy.
When Mr. Johnson communicated this to Lord Clar-
endon, the latter said that Her Majesty's Government
desired that all difificulties between the two nations
should be settled honorably, and that the relations
between the two countries might be most friendly and
amicable.^

In May 1869, Mr. Thomas Balch, who had returned
home for a time, discussed at Washington, with
Senator Sumner ^ and also with Secretary Fish and

valuable lesson in that respect, and that we may say of it, fidelia
vulnera amantis.^

''Mr. Sumner's course was justified by the event, and the
words, which seemed likely to prevent an adjustment, paved the
way to a real settlement as he intended." Charles Sumiier, by
Moorfield Storey. Boston and New York, 1900, pages 367, 368.

^Correspondence concerning Claims Against Great Britain,
Volume III. Washington: Government Printing Office, 1870,
pages 786, 787.

^ Senator Sumner and Mr. Balch were personal friends for
many years, and the following letters throw light on Senator
Sumner's views upon the Alabama question and English opinion,
after the rejection of the Johnson-Clarendon Convention.

THE ALABAMA ARBITRATION. IO9

President Grant,^ the possibilities of settling the Ala-
bama controversy in a peaceable manner, and urged
upon all three the submission of the whole question
to the decision of a Court of Arbitration composed

** Washington,

"24th May, '69.
'* Dear Mr. Balch,

'' I have read these enclosures with interest. I remember Mr.
B.'s father — as Mead Beaumont,' and was familiar at the time
with his most expensive party contest.

' * The view of yr. correspondent is sensible. I now under-
stand what D' Israeli meant when he called 'that wild

man.' But all England seems to be ' wild.'

' ' Sincerely yours,

"CHARLES SUMNER."

Washington,

" ist June, '69.

* * Thanks for this letter, which shows returning reason in Eng-
land. Is it not strange, the scene of the last month? Will
Englishmen ever do me justice ?

''Ever Yours,

"CHARLES SUMNER."

"Washington,

"6th June, '69.
" My Dear Mr. Balch,

* ' Calm the English and teach them to be just. lis veuleut
Hre libres et ne saventpas Hre justes. These were the words of
old Sieyes.

"Think of their press attacking a speech for weeks which it

** Manuscript notes of Mr. Balch.

no THE ALABAMA ARBITRATION.

exclusively of jurists ; he deprecated also any further
attempt to press the question of the recognition in
the Queen's Proclamation of the Confederate States
as belligerents.®^

never laid before its readers. Of course, every article was a mis-
representation. < < Yours sincerely,

''CHARLES SUMNER.*'

** Washington,

** nth June, '69.
•* Dear Mr. Balch,

*******

' ' Was there ever such a foolish six weeks as England has
passed misrepresenting a speech which their press did not publish !
Their case is not improved. Sooner or later they will be obliged
to listen. « < Sincerely yours,

''CHARLES SUMNER."

"Washington,

" 15th June, '69.
"Dear Mr. Balch,

' ' The Seward dispatch is well known. It is one of those
early docts. which show that he did not understand the case any
more than the English understand it now. Was England ever

before so false and mean ? The mean are always false.

*******
' ' Faithfully yours,

"CHARLES SUMNER.

* ' One of my correspondents says that Sir Henry B. [probably
Sir Henry Bulwer] is the only Englishman who has kept his
temper and is fair minded now."

*^The following extract is taken from notes written in 1872 by
Mr. Balch upon the Alabama question: —

' ' In Mauran vs. the Insurance Company, we had ourselves

THE ALABAMA ARBITRATION. I I I

In the spring of 1869, John Lothrop Motley, the
eminent historian, succeeded Mr. Johnson as Minister
to England. Mr. Fish in his instructions to Mr.
Motley sought to keep three objects in view : — First,
to show that the rejection of the Johnson-Clarendon
Convention for the settlement of claims, was not an
unfriendly act ; second, to propose a suspension of
discussion until public feeling had grown more calm ;

recognized the Belligerent Status of the South, four days after
the Queen's Proclamation. Apart from this decision I was and
am among the American lawyers who maintain that the alleged
offense in the Queen's Proclamation was not an offense by Inter-
national Law ; and, accordingly, in my interviews with Mr. Sum-
ner and others during my visit in Washington, I deprecated any
further attempt to moot this point."

Compare '*Mauran vs. Insurance Company," 6 Wallace's
United States Supreme Court Reports^ pages i, 2, 13 et seq. :
''Fifield vs. Insurance Company," 47 Pennsylvania State ^ page
1 66 : ' * Charles E. Dole and another vs. The New England Mutual
Marine Insurance Company," "The same vs. The Equitable
Safety Insurance Company," 6 Allen (Massachusetts), page 373 :
and Commentaire sur les Elements du Droit International et sur
I ' Histoire des Progres du Droit des Gens de Henry Wheaton,
by William Beach Lawrence; Leipzig: F. A. Brockhaus, 1868.
Volume L, pages 184, 185.

See also, by George Bemis, Esq., Hasty Recognitiony pub-
lished at Boston, May 30th, 1865: British Neutrality — Hasty
Recognition of Rebel Belligerency and Our Right to Complain
of it; from the New York Times, March i6th, 1868. Re-
printed in Correspondence concerning Claims Against Great
Britain. Volume IV. Washington : Government Printing Office,
1869, pages 12-46.

112 THE ALABAMA ARBITRATION,

and third, to make it clear that the United States did
not base its claims for damages against England on the
latter' s recognition of the Confederate States as bel-
ligerents,^ Mr. Fish instructed Mr. Modey after the
latter's arrival in London to inform Lord Clarendon
that any future negotiations concerning the Alabama
claims would be conducted at Washington. Sir John
Rose, a member of the Canadian Ministry, arrived in

^Mr. Fish in his instructions to Mr. Motley on May 15th,
1869, wrote: —

' * The President recognizes the right of every power, when a
civil conflict has arisen within another State, and has attained a
sufficient complexity, magnitude and completeness, to define its
own relations and those of its citizens and subjects toward the
parties to the conflict, so far as their rights and interests are
necessarily affected by the conflict.

* ' The necessity and the propriety of the original concession of
belligerency by Great Britain at the time it was made have been
contested and are not admitted. They certainly are question-
able, but the President regards that concession as a part of the
case only so far as it shows the beginning and the animus of that
course of conduct which resulted so disastrously to the United
States. It is important, in that it foreshadows subsequent events.

* ' There were other powers that were contemporaneous with
England in similar concession, but it was in England only that
the concession was supplemented by acts causing direct damage
to the United States. The President is careful to make this dis-
crimination, because he is anxious as much as possible to simplify
the case, and to bring into view these subsequent acts, which are so
important to determining the question between the two countries. ' '
Correspondence concernmg Claims Against Great Britain.
Volume VI. Washington: Government Printing Office, 1871,
pages 3, 4.

THE ALABAMA ARBITRATION. I I 3

the summer of 1869, ostensibly to arrange some
commercial matters, but really to sound the United
States Government upon the possibility of settling
the Alabama claims.^^ Mr. Fish told Sir John Rose
that some time must elapse to allow the irritation
that Senator Sumner's speech had caused in Eng-
land to quiet down, and "that when the excitement
subsided the appointment as special envoy of some
man of high rank, authorized to express some kind
word of regret, would pave the way for a settlement ;
and he outlined to Sir John the exact scheme for set-
tlement which was adopted a year and a half later."
President Grant in his message to Congress, De-
cember 5th, 1870, spoke with regret of the failure of
the two Governments to come to some understanding
on the subject. Early in January, 1871, Sir John Rose
again visited Washington on a confidential mission.*^^

*^ Mr. Fish and the Alabama Claims. A Chapter in Diplo-
matic History, by J. C. Bancroft Davis. Boston and New York,
i893» pages 44-46.

The celebrated international jurist, Dr. Bluntschli, professor at
Heidelberg, reviewed in 1870 for La Revue de Droit international
et de legislation compar^e (Bruxelles) the Alabama question in an
article entitled. Opinion impaHiale sur la Question de F Alabama
et sur la Maniere de la Resoudre.

'° Mr. Fish and the Alabama Claims. A Chapter in Diplo-
matic History, by J. C. Bancroft Davis. Boston and New York,
1893, pages 59-64. Memoir and Letters of Charles Sumner, by
Edward L. Pierce. Boston, 1893. Volume IV., page 467.

114 THE ALABAMA ARBITRATION.

After twenty months of intermittent secret negotia-
tions, an accord was finally reached, which found formal
expression in four notes that passed between Sir Ed-
ward Thornton, the English Minister at Washington,
and Secretary Fish.^^ In a note of January 26th, 187 1,
Sir Edward Thornton proposed to Mr. Fish the ap-
pointment of a Joint High Commission to settle the
northeast fisheries and any other outstanding differ-
ences between the two countries. Four days later
Secretary Fish wrote to Sir Edward, that the President
approved of the proposal, but it was essential to in-
clude the Alabama claims in the suggested settlement.
Two days later, the English Minister replied that his
Government would be pleased to have the Alabama
claims submitted to the same Joint High Commission,
provided that all other claims by British and American
citizens arising from the acts of the Civil War were
similarly referred. On the 3d of February, Secretary
Fish wrote to the English Minister, that the President
assented to the proposal to refer to the same Com-
mission all claims of citizens of either nation growing
out of acts committed during the Civil War.

" The National and Private ''Alabama Claims^' and their
"■final and amicable settlement'' by Charles C. Beaman, Jr.
Printed by W. H. Moore, Washington, D. C, 1871, pages
308-310. Correspondence concerning Claims Against Great
Britain. Volume VI. Washington : Government Printing
Office, 1 87 1, pages 15-18.

CHAPTER VI.

The Joint High Commission was organized at Wash-
ington on February 27th, 1871^^ The representatives
of the United States were Hamilton Fish, Secretary
of State, Mr. Justice Nelson of the Supreme Court,
General Robert C. Schenck, just appointed Minister
to England, Ebenezer Rockwood Hoar, of Massachu-
setts, and George H. Williams, of Oregon. The
representatives of Great Britain were Earl de Grey
and Ripon, a member of the English Cabinet, Sir
Stafford Henry Northcote, of Her Majesty's opposi-
tion. Sir Edward Thornton, Minister at Washington,
Professor Mountague Bernard of Oxford University,
and Sir John A. Macdonald, the Premier of Canada.
Finally, after many and long deliberations, the Com-
missioners agreed upon and signed on the 8th of
May, 1 87 1, the treaty that became known by the name
of the city, where they negotiated — the Treaty of
Washington.

" Papers relating to the Treaty of Washington. Volume I.
Geneva Arbitration. Washington : Government Printing Office,
1872, page 9 et seq. Mr. Fish and the Alabama Claims. A
Chapter in Diplomatic History^ by J. C. Bancroft Davis. Boston
and New York, 1892, page 70 et seq.

(115)

Il6 THE ALABAMA ARBITRATION.

The treaty consisted of a preamble and forty-three
articles. The preamble and the first eleven articles
related to the Alabama claims. The next six articles,
from twelve to seventeen, both included, referred to
claims of citizens of the United States against Eng-
land and of claims of British subjects against the
United States arising from acts committed against
the person or property of such individuals during the
course of the Civil War. Then the succeeding arti-
cles beginning with the eighteenth and ending with
the thirty-third, provided for the settlement of the
North Atlantic fisheries; the navigation of the St.
Lawrence, the Yukon and other rivers, of Lake Michi-
gan, and of certain canals ; for a system of bonded
transit; for certain features of the coasting trade;
and for the exemption from duty of lumber cut in
United States territory along the St. John River and
floated down to the sea. The remaining articles,
except the last, that related to the exchange of ratifi-
cation, arranged for the submission to the arbitration
of the Emperor of Germany of the San Juan water
boundary between the Territory of Washington and
British Columbia.

The provisions of the treaty relating to the Ala-
bama claims met in substance the requirements laid
down by Senator Sumner in his speech in opposi-
tion to the Johnson-Clarendon Convention.

THE ALABAMA ARBITRATION. II 7

The first article referred to the power that the Eng-
lish Government had granted to its commissioners
" to express, in a fi'iendly spirit, the regret felt by
Her Majesty's Government for the escape of the
Alabama and other vessels from British ports, and
for the depredations committed by those vessels."

Then, further, instead of leaving the choice of an
arbitrator to the chance of lot, the same article pro-
vided for the constitution of a Court of Arbitration
to hear and try the case, in the following manner : —

'* Now, 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,
which are not admitted by Her Britannic Majesty's
Government, the High Contracting Parties agree that
all the said claims, growing out of acts committed by
the aforesaid vessels, and generically known as the
* Alabama Claims,' shall be referred to a Tribunal of
Arbitration, to be composed of five Arbitrators, to be
appointed in the following manner, that is to say :
One shall be named by the President of the United
States ; one shall be named by Her Britannic Majesty;
His Majesty the King of Italy shall be requested to
name one ; the President of the Swiss Confederation
shall be requested to name one ; and His Majesty the
Emperor of Brazil shall be requested to name one.

" In case of the death, absence, or incapacity to

Il8 THE ALABAMA ARBITRATION.

serve of any or either of the said Arbitrators, or in
the event of either of the said Arbitrators omitting or
declining or ceasing to act as such, the President of
the United States, or Her Britannic Majesty, or His
Majesty the King of Italy, or the President of the
Swiss Confederation, or His Majesty the Emperor of
Brazil, as the case may be, may forthwith name another
person to act as Arbitrator in the place and stead of
the Arbitrator originally named by such Head of a
State.

" And in the event of the refusal or omission for
two months after receipt of the request from either of
the High Contracting Parties of His Majesty the King
of Italy, or the President of the Swiss Confederation,
or His Majesty the Emperor of Brazil, to name an
Arbitrator either to fill the original appointment or in
the place of one who may have died, be absent, or in-
capacitated, or who may omit, decline, or from any
cause cease to act as such Arbitrator, His Majesty the
King of Sweden and Norway shall be requested to
name one or more persons, as the case may be, to
act as such Arbitrator or Arbitrators."^^

The next four articles provided for the meeting of
the Court at Geneva, for the limit of time and manner

''^Papers relating to the Treaty of Washington, Volume I.
Geneva Arbitration, Washington : Government Printing Office
1872, page 12.

THE ALABAMA ARBITRATION. II9

of preparing the cases and counter cases, and the pres-
entation of arguments on each side.

In the sixth article the two powers agreed upon
three rules that should apply to the case. The three
rules were as follows :

" A neutral Government is bound —

'* First, to use due diligence to prevent the fitting
out, arming, or equipping, within its jurisdiction, of
any vessel which it has reasonable ground to believe
is intended to cruise or to carry on war against a
Power with which it is at Peace ; and also to use like
diligence to prevent the departure from its jurisdiction
of any vessel intended to cruise or carry on war as
above, such vessel having been specially adapted, in
whole or in part, within such jurisdiction to warlike use.

** Secondly, not to permit or suffer either belliger-
ent to make use of its ports or waters as the base of
naval operations against the other, or for the purpose
of the renewal or augmentation of military supplies or
arms, or the recruitment of men.

** Thirdly, to exercise due diligence in its own ports
and waters, and, as to all persons within its jurisdic-
tion, to prevent any violation of the foregoing obliga-
tions and duties." ^^

These rules were followed with a declaration in the

'^^Papers relating to the Treaty of Washington. Volume I.
Geneva Arbitration. Washington : Government Printing Office,
1872, pages 14, 207 et seq.

I20 THE ALABAMA ARBITRATION.

same article by the English Government that it did
not assent to the '* rules as a statement of the princi-
ples of International Law which were in force at the
time " the Alabama claims arose, but in order to
strengthen "the friendly relations between the two
countries, * * * ^-j^^ Arbitrators should assume
that Her Majesty's Government had undertaken to
act upon the principles set forth '* in the rules.

The other five articles — from seven to eleven both
inclusive — related to the manner of rendering the
decision, the part each nation should bear of the ex-
penses of the Court, that a majority of the Court
should decide, and that the decision should be final.

These eleven articles secured a decision upon all
claims national as well as individual growing out of
the acts committed by the Confederate cruisers, and
" generically known as the Alabama claims." The
United States Senate confirmed the treaty. May 24th,
Senator Sumner voting for it.

In England there were signs of relief that a plan
for the settlement of the Anglo-American differences
at length was agreed upon : but there was also some
criticism of the treaty. Earl Russell attacked it in
the House of Lords, June 12th, 1871. The three
rules were criticised severely : it was said that they
would prevent neutral traders from selling arms and
munition of war in the ordinary course of commerce.

THE ALABAMA ARBITRATION. 121

The United States chose for their agent Mr. J. C.
Bancroft Davis, to whom they entrusted the preparation
of their case : for their counsel they appointed Will-
iam M. Evarts, Caleb Gushing, and Morris R. Waite,
afterwards Chief Justice of the Supreme Court.

Great Britain entrusted the preparation of her case
to the Lord Chancellor, with the assistance of Lord
Tenderden and Professor Bernard: she named Sir
Roundell Palmer as her counsel.

In accordance with the provisions in Article I. for
the appointment of the members of the Tribunal, the
President of the United States named as arbitrator
Charles Francis Adams, who during the long course
of the war and for more than two years after repre-
sented and defended American interests with such rare
courtesy and ability ; the Queen of England chose
Sir Alexander Cockburn, Lord Chief Justice of Eng-
land; the King of Italy appointed Count Frederic
Sclopis, a distinguished judge and lawyer of European
reputation ; the President of the Swiss Confederation
chose Monsieur Jacques Staempfli of Berne, who had
served three times as President of the Confederation ;
and the Emperor of Brazil named Marcos Antonio
d'Araujo, Baron d'ltayuba, Brazilian Minister at
Paris. ^^

'^ The Treaty of Washington, its Negotiation, Execution, and the
Disctcssion relating thereto, by Caleb Gushing. New York : 1873,
pages 26, 78-94.

CHAPTER VII.

On December 15th, 1871, in the "Salle des Con-
ferences " at the Hotel de Ville of Geneva, the Court
met and organized with Count Sclopis as president.^^
After a speech of Count Sclopis, opening the pro-
ceedings, the agents of the two litigant nations pre-
sented the case of their respective countries to the
Court. The Tribunal then ''directed that the re-
spective counter cases, additional documents" et
cetera should be presented on or before the 15th of
April following. On December i6th the Court met
and adjourned until June 15th, 1872.'^^

When the contents of the American Case became
known, the English press commented at first severely
on the chapter on *' unfriendHness '' ; gradually, how-
ever, the English journals dropped their attacks on
that part of the case to criticise the ** indirect claims"

'* Papers relating to the Treaty of Washington. Volume IV.
Geneva Arbitration. Washington : Government Printing Office,
1872, page 14. The Treaty of Washington^ its Negotiation,
Execution, and the Discussion relating thereto, by Caleb Gushing,
New York : 1873, page 74 et seq.

" Papers relating to the Treaty of Washington. Volume IV.
Geneva Arbitration. Washington : Government Printing Office,
1872, page 16.

(122)

THE ALABAMA ARBITRATION. I 23

that the United States put forward.''^ In January,
1872, the comments on that subject became in some
cases severe, and the English papers generally said
that something must be done to guard England
against any possibilities of being called upon to pay
damages for the indirect claims.

The Queen, in her speech to Parliament on the 6th
of February said :

" The arbitrators appointed pursuant to the Treaty
of Washington, for the purpose of amicably settling
certain claims known as the Alabama claims, have
held their first meeting at Geneva.

" Cases have been laid before the arbitrators on
behalf of each party to the treaty. In the Case so
submitted on behalf of the United States, large claims
have been included which are understood on my part
not to be within the province of the arbitrators. On

'* The claims as stated by the American Commissioners were
classified as follows :

" I . The claims for direct losses growing out of the destruction
of vessels and their cargoes by the insurgent cruisers.

** 2. The national expenditures in the pursuit of those cruisers.

' ' 3. The loss in the transfer of the American commercial
marine to the British flag.

* ' 4. The enhanced payments of insurance.

'*5. The prolongation of the war and the addition of a large
sum to the cost of the war and the suppression of the rebellion."

Papers relating to the Treaty of Washington. Volume I.
Geneva Arbitration. Washington : Government Printing Office,
page 185. lb., Volume IV., pages 4, 5.

124 THE ALABAMA ARBITRATION.

this subject I have caused a friendly communication
to be made to the Government of the United States.*'

When the Treaty of Washington was completed,
the American Commissioners thought it distinctly
provided, and the English Commissioners thought it
as distinctly did not provide, to refer the " indirect
claims " to a Court of Arbitration.*^^

When the two Governments understood that they
held different views on that point, their respective
agents conferred and discussed frequently the sub-
ject with the object of avoiding a clash upon that ques-
tion, and the consequent failure of the arbitration. A
satisfactory settlement of the differences was most
difficult. When the Tribunal reconvened, on June
15th, Lord Tenderden, instead of delivering the
printed argument of England, asked the Court to
adjourn for eight months.^ The same day, Mr. Davis

'• Life, Letters and Diaries of Sir Stafford Northcote, First
Earl of Iddesleigh, by Andrew Lang. Edinburgh and London,
1890, vol. IL, pages 5-13, passim. Mr. Fish and the Ala-
bama Claims. A Chapter in Diplomatic History, hy J. C.
Bancroft Davis. Boston and New York, 1893, pages 74-82,
89-96. Papers relating to the Treaty of Washington. Volume
IL Geneva Arbitration. Washington : Government Printing
Office, 1872. Pages 434, 593-604. Charles Sufnner, by Moor-
field Storey. Boston and New York, 1900, pages 368, 369.

^Papers relating to the Treaty of Washington. Volume IV.
Geneva Arbitration. Washington : Government Printing Office,
1872, pages 6, 17, 18.

THE ALABAMA ARBITRATION. 1 25

and Lord Tenderden had an interview, and then, after
many pourparlers during the next few days, between
Mr. Davis and Mr. Adams and the American coun-
sel on the one side, and Lord Tenderden and Sir
Roundell Palmer on the other side, the two agents
came to an agreement.^^ On June 19th, Count
Sclopis, as head of the Tribunal, embodied it in
formal words. He said, on behalf of all the mem-
bers of the Court, that, without expressing any
opinion on the point in difference as to the meaning
of the treaty, the Court thought, individually and
collectively, that the '' indirect claims " did not con-
stitute, upon the principles of International Law
applicable to such cases, good grounds for an award
of damages between nations, and, upon such princi-
ples, the Tribunal, even if there were no disagreement
between the two litigant governments as to the com-
petency of the Court to decide thereon, would exclude
them altogether in making its award.^^ This announce-

^^ Papers relating to the Treaty of Washington. Volume IV.
Geneva Arbitration. Washington : Government Printing Office,
1872, pages 6, 19. Mr. Fish and the Alabama Claims. A Chap-
ter in Diplomatic History^ by J. C. Bancroft Davis. Boston and
New York, 1893, pages 98-102. Charles Francis Adams ^ by his
son, Charles Francis Adams. Boston, 1900, pages 394, 395.

^'^The TrecUyof Washington, its Negotiation, Execution, and the
Discussion relating thereto, by Caleb Gushing. New York : 1873,
page 69 et seq.

126 THE ALABAMA ARBITRATION.

ment practically ended the subject; for at the next
meeting of the Tribunal, a few days later, Mr. Davis
informed the Court that, inasmuch as it was of the
opinion that it did not have jurisdiction to try the
" indirect claims," his Government had empowered
him to say that it would not press those claims further,
or urge them as a consideration in any award that the
Court might decree.*^ Two days afterwards, Lord
Tenderden, in behalf of Great Britain, said that in
consequence of the decision of the Court that it had
not jurisdiction to try the '* indirect claims " and the
statement of the American agent on the subject, his
Government had instructed him to request leave to
withdraw the application for an adjournment and to
present the British printed argument. This request
was readily granted, and the case proceeded.^

Then, after holding many sittings to hear the argu-
ment of counsel, the Court rendered its decision on
September 14th, 1872. As to the Alabama the Tri-
bunal was unanimous that England had failed to ful-
fill the duties prescribed by the first and the third of

^Papers relating to the Treaty of Washington. Volume IV.
Geneva Arbitration. Washington : Government Printing Office,
1872, page 21.

THE ALABAMA ARBITRATION. \2J

the three rules established by the Treaty of Washing-
ton. In the case of the Oreto, the Court held, Sir
Alexander Cockburn dissenting, that Great Britain
had failed to perform the duties prescribed by the
three rules. As to the Shenandoah , the Court de-
cided by three votes to two. Sir Alexander Cock-
burn and Viscount d'ltajuba dissenting, that Eng-
land had failed to fulfill her duties according to the
three rules in the case of that vessel, ''from and
after her entry into Hobson's Bay," and that Great
Britain was responsible, therefore, for the acts of the
Shenandoah after her departure from Melbourne on
February i8th, 1865.^

As to the Tuscaloosa, the Clarence, the Tacony,
and the Archer, tenders either of the Alabama or the
Florida, the Court was unanimous that such auxiliary
vessels "must necessarily follow the lot of their prin-
cipals." Concerning the Georgia, the Sumter, the
Nashville, the Tallahassee, and the Chickamauga, the
Tribunal was unanimously of the opinion that Eng-
land was not responsible. And the Court held. Sir
Alexander Cockburn dissenting, that Great Britain

^Papers relating to the Treaty of Washington. Volume IV.
Geneva Arbitration. Washington : Government Printing Office,
1872, page 8 et seq., 15-/^8 passim, ^get seg., 230-544.

The Treaty of Washington, its Negotiation, Execution, and the
Discussion relating thereto, by Caleb Gushing. New York : 1873,
pages 126-149.

128 THE ALABAMA ARBITRATION.

was liable to the United States in damages for the
losses inflicted upon the latter's commerce by the
Confederate cruisers built in England to the amount
of fifteen million five hundred thousand dollars
($15,500,000), payable in gold. Sir Alexander Cock-
burn filed a separate opinion stating his reasons for
disagreeing from the judgment of the majority of
the Court.

Thus, after many anxious years, when at times the
feelings on both sides of the Atlantic ran high, a burn-
ing question of difference between two powerful na-
tions— that, had it continued to smoulder, would cer-
tainly have imbittered their relations and might very
likely have led to war between them — was eliminated,
through a course of action alike honorable to both
sides, in a peaceful manner from the sphere of their
every-day relations.

APPENDIX,

APPENDIX.

DECISION AND AWARD.

Made by the tribunal of arbitration constituted by virtue of the first
article of the treaty concluded at Washington the 8th of May,
iSyiy between the United States of America and Her Majesty the
Qv£en of the United Kingdom of Great Britain and Ireland.

The United States of America and Her Britannic
Majesty having agreed by Article I. of the treaty con-
Recital of eluded and signed at Washington the

t^hTrrearof ^^^ ^^ ^^^^ ^^7i> to refer all the
Washington, claims '^generically known as the Ala-
bama claims ** to a tribunal of arbitration to be com-
posed of five arbitrators named :

One by the President of the United States,
One by Her Britannic Majesty,
One by His Majesty the King of Italy,
One by the President of the Swiss Confederation,
One by His Majesty the Emperor of Brazil ;
And the President of the United States, Her
Appointment Britannic Majesty, His Majesty the
ofarbitrators. Y^xng of Italy, the President of the Swiss
Confederation, and His Majesty the Emperor of

(131)

132 THE ALABAMA ARBITRATION.

Brazil having respectively named their arbitrators,
to wit :

The President of the United States, Charles Francis
Adams, esquire ;

Her Britannic Majesty, Sir Alexander James Ed-
mund Cockburn, baronet, a member of Her Majesty's
privy council, lord chief justice of England;

His Majesty the King of Italy, His Excellency
Count Frederic Sclopis, 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, M.
Jacques Staempfli ;

His Majesty the Emperor of Brazil, his Excellency
Marcos Antonio d'Araujo, Viscount d'ltajuba, a
grandee of the Empire of Brazil, member of the
council of H. M. the Emperor of Brazil, and his
envoy extraordinary and minister plenipotentiary in
France.

And the five arbitrators above named having as-
Organization sembled at Geneva (in Switzerland) in
of tribunal. ^^e of the chambers of the Hotel de Ville
on the 15th of December, 1871, in conformity with
the terms of the second article of the Treaty of Wash-
ington, of the 8th of May of that year, and having
proceeded to the inspection and verification of their
respective powers, which were found duly authenti-

THE ALABAMA ARBITRATION. 1 33

cated, the tribunal of arbitration was declared duly
organized.

The agents named by each of the high contract-
ing parties, by virtue of the same Article II., to
wit :

For the United States of America, John C. Ban-
croft Davis, esquire ;

And for Her Britannic Majesty, Charles Stuart
Aubrey, Lord Tenderden, a peer of the United King-
dom, companion of the Most Honorable Order of the
Bath, assistant under-secretary of state for foreign
afeirs ;

Whose powers were found likewise duly authenti-
Delivery of cated, then delivered to each of the arbi-
cases. trators the printed case prepared by each

of the two parties, accompanied by the documents,
the official correspondence, and other evidence on
which each relied, in conformity with the terms of the
third article of the said treaty.

In virtue of the decision made by the tribunal at
Delivery of i^^ first session, the counter-case and addi-
counter-cases. tional documents, correspondence, and
evidence referred to in Article IV. of the said treaty
were delivered by the respective agents of the two
parties to the secretary of the tribunal on the 15th of
April, 1872, at the chamber of conference, at the
Hotel de Ville of Geneva.

134 THE ALABAMA ARBITRATION.

The tribunal, in accordance with the vote of ad-
Delivery of journment passed at their second session,
arguments. held on the 1 6th of December, 1871, re-
assembled at Geneva on the 15th of June, 1872 ; and
the agent of each of the parties duly delivered to each
of the arbitrators, and to the agent of the other party,
the printed argument referred to in Article V. of the
said treaty.

The tribunal having since fully taken into their con-
Deliberations sideration the treaty, and also the cases,
of tribunal. counter-cases, documents, evidence, and
arguments, and likewise all other communications
made to them by the two parties during the progress
of their sittings, and having impartially and carefully
examined the same,

Award. Has arrived at the decision embodied in
the present award :

Whereas, having regard to the Vlth and Vllth
articles of the said treaty, the arbitrators are bound
under the terms of the said Vlth article, '*in decid-
ing the matters submitted to them, to be governed
by the three rules therein specified and by such prin-
ciples of international law, not inconsistent therewith,
as the arbitrators shall determine to have been ap-
plicable to the case ;"

THE ALABAMA ARBITRATION. 135

And whereas the "due diligence" referred to in

Definition of ^^^ ^^^^ ^"^ ^^^^^ ^^ ^^^ ^^^^ rules OUght

due diligence, to be exercised by neutral governments
in exact proportion to the risks to which either
of the belligerents may be exposed, from a fail-
ure to fulfill the obligations of neutrality on their
part ;

And whereas the circumstances out of which the
facts constituting the subject-matter of the present
controversy arose were of a nature to call for the ex-
ercise on the part of Her Britannic Majesty's govern-
ment of all possible solicitude for the observance of
the rights and the duties involved in the proclamation
of neutrality issued by Her Majesty on the 13th day
of May, 1861 ;

And whereas the effects of a violation of neutrality
Effect of a committed by means of the construction,
commission, equipment, and armament of a vessel are
not done away with by any commission which the
government of the belligerent power, benefited
by the violation of neutrality, may afterwards have
granted to that vessel ; and the ultimate step,
by which the offense is completed, cannot be
admissible as a ground for the absolution of
the offender, nor can the consummation of his
fraud become the means of establishing his inno-
cence ;

136 THE ALABAMA ARBITRATION.

And WHEREAS the privilege of exterritoriality ac-
^ . . , corded to vessels of war has been admitted

Exterritorial-
ity of vessels into the law of nations, not as an absolute

right, but solely as a proceeding founded

on the principle of courtesy and mutual deference

between different nations, and therefore can never be

appealed to for the protection of acts done in violation

of neutrality ;

And whereas the absence of a previous notice can-
Effect of want ^^^ ^^ regarded as a failure in any consid-
of notice. eration required by the law of nations, in
those cases in which a vessel carries with it its own
condemnation ;

And whereas, in order to impart to any supplies
Supplies of ^^ ^^^^ ^ character inconsistent with the
coal. second rule, prohibiting the use of neutral

ports or waters, as a base of naval operations for
a belligerent, it is necessary that the said supplies
should be connected with 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
Alabama^ it clearly results from all the

Responsibility '

for acts of the facts relative to the construction of the ship
a ama. ^^ ^^^^ designated by the number "290" in
the port of Liverpool, and its equipment and arma-
ment in the vicinity of Terceira through the agency

THE ALABAMA ARBITRATION. 1 37

of the vessels called the Agrippina and the Bahamay
dispatched from Great Britain to that end, that the
British government failed to use due diligence in the
performance of its neutral obligations ; and especially
that it omitted, notwithstanding the warnings and
official representations made by the diplomatic
agents of the United States during the construction
of the said number "290," to take in due time any
effective measures of prevention, and that those
orders which it did give at last, for the detention of
the vessel, were issued so late that their execution
was not practicable ;

And WHEREAS, after the escape of that vessel, the
measures taken for its pursuit and arrest were so im-
perfect as to lead to no result, and therefore cannot
be considered sufficient to release Great Britain from
the responsibility already incurred ;

And WHEREAS, in despite of the violations of the
neutrality of Great Britain committed by the "290,"
this same vessel, later known as the Confederate
cruiser Alabama, was on several occasions freely
admitted into the ports of colonies of Great Britain,
instead of being proceeded against as it ought to have
been in any and every port within British jurisdiction
in which it might have been found ;

And whereas the government of Her Britannic
Majesty cannot justify itself for a failure in due dili-

138 THE ALABAMA ARBITRATION.

gence on the plea of insufficiency of the legal means
of action which it possessed :

Four of the arbitrators, for the reasons above
assigned, and the fifth for reasons separately assigned
by him,

Are of opinion —

That Great Britain has in this case failed, by omis-
sion, to fulfill the duties prescribed in the first and
the third of the rules established by the Vlth article
of the Treaty of Washington.

And WHEREAS, with respect to the vessel called

the Florida, it results from all the facts relative

And of the ^^ ^^ construction of the Oreto in

Florida, the port of Liverpool, and to its issue
therefrom, which facts failed to induce the author-
ities in Great Britain to resort to measures ade-
quate to prevent the violation of the neutrality
of that nation, notwithstanding the warnings and re-
peated representations of the agents of the United
States, that Her Majesty's government has failed
to use due diligence to fulfill the duties of neu-
trality ;

And WHEREAS it likewise results from all the facts
relative to the stay of the Oreto at Nassau, to her
issue from that port, to her enlistment of men, to her
supplies, and to her armament, with the co-operation
of the British vessel Prince Alfred, at Green Bay,

THE ALABAMA ARBITRATION. 1 39

that there was negligence on the part of the British
colonial authorities ;

And whereas, notwithstanding the violation of the
neutrality of Great Britain committed by the OretOy
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 the judicial acquittal of the Oreto
at Nassau cannot relieve Great Britain from the re-
sponsibility incurred by her under the principles of
international law ; nor can the fact of the entry of
the Florida into the Confederate port of Mobile, and
of its stay there during four months, extinguish the
responsibility previously to that time incurred by
Great Britain :

For these reasons.

The tribunal, by a majority of four voices to one,
is of opinion —

That Great Britain has in this case failed, by
omission, to fulfill the duties prescribed in the first,
in the second, and in the third of the rules estab-
lished by Article VI. of the Treaty of Washington.

And whereas, with respect to the vessel called
And of the the Shenandoah, it results from all the
ffterrelvtg f^^^^ relative to the departure from Lon-
Melbourne. don of the merchant-vessel the Sea King,
and to the transformation of that ship into a con-

140 THE ALABAMA ARBITRATION.

federate cruiser under the name of the Shenandoah,
near the island of Madeira, that the government of
Her Britannic Majesty is not chargeable with any
failure, down to that date, in the use of due dili-
gence to fulfill the duties of neutrality;

But WHEREAS it results from all the facts con-
nected with the stay of the Shenandoah at Mel-
bourne, and especially with the augmentation which
the British government itself admits to have been
clandestinely effected of her force, by the enlistment
of men within that port, that there was negligence
on the part of the 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
the three rules of Article VI. in the Treaty of Wash-
ington, or by the principles of international law not
inconsistent therewith," in respect to the vessel
called the Shenandoah, during the period of time an-
terior to her entry into the port of Melbourne ;

And, by a majority of three to two voices, the tri-
bunal decides that Great Britain has failed, by omis-
sion, to fulfill the duties prescribed by the second and
third of the rules aforesaid, in the case of this same
vessel, from and after her entry into Hobson's Bay,
and is therefore responsible for all acts committed by

THE ALABAMA ARBITRATION. I4I

that vessel after her departure from Melbourne, on
the 1 8th day of February, 1865.

And so far as relates to the vessels called —
And of the ^^^ Tusca/oosa, {tender to the Alabama,)

Tuscaloosa, The Clarence,

Clarence,

Tacony, and ihe Tacony, and

Archer. -pj^^ Archer, (tenders to the Florida)

The tribunal is unanimously of opinion —
That such tenders or auxiliary vessels, being prop-
erly regarded as accessories, must necessarily follow
the lot of their principals, and be submitted to the
same decision which applies to them respectively.
And so far as relates to the vessel called Retribution,
The tribunal, by a majority of three to two voices,
is of opinion —

No responsi- That Great Britain has not failed by
RetribtUion ^ ^^V ^^^ ^^ omission to fulfil any of the
Georgia, duties prescribed by the three rules of
Nashville, Article VI. in the Treaty of Washington,
Tallahassee, ^^ |^ ^^ principles of international law

or Chtcka- j r r

mauga. not inconsistent therewith.

And so far as relates to the vessels called —

The Georgia,

The Sumter,

The Nashville,

The Tallahassee, and

The Chickamauga, respectively.

142 THE ALABAMA ARBITRATION.

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 the
three rules of Article VI. in the Treaty of Washington,
or by the principles of international law not incon-
sistent therewith.

And so far as relates to the vessels called- —
The Sallie, The Sallie,

jeffersofiDavis. The Jefferson Davis,
Music, "^ -^-^

Boston, and The Music,

tek^'iS'ocon- The Boston, and
sideration. The V. H. Joy, respectively.

The tribunal is unanimously of opinion —
That they ought to be excluded from consideration
for want of evidence.

And WHEREAS, so far as relates to the particulars of
the indemnity claimed by the United States, the costs
_, . , of pursuit of the Confederate cruisers

Claims for * ^ ^

cost of pursuit are not, in the judgment of the tribunal,
owe . properly distinguishable from the gen-
eral expenses of the war carried on by the United
States :

The tribunal is, therefore, of opinion, by a major-
ity of three to two voices —

That there is no ground for awarding to the
United States any sum by way of indemnity under
this head.

THE ALABAMA ARBITRATION. 1 43

And WHEREAS prospective earnings cannot properly
. , , be made the subject of compensation, in-

And for pros- "^ ^

pective asmuch as they depend in their nature

earnings. upon future and uncertain contingencies :

The tribunal is unanimously of opinion —

That there is no ground for awarding to the United
States any sum by way of indemnity under this head.

And whereas, in order to arrive at an equitable
Net freights compensation for the damages which have
only allowed, 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 ;"

And whereas, it is just and reasonable to allow in-
terest at a reasonable rate ;

And whereas, in accordance with the spirit and
letter of the Treaty of Washington, it is preferable to
adopt the form of adjudication of a sum in gross,
rather than to refer the subject of compensation for
further discussion and deliberation to a board of as-
sessors, as provided by Article X. of the said treaty :

The tribunal, making use of the authority conferred

upon it by Article VII. of the said treaty,
115.500,000 . .

compensation by a majority of four voices to one, awards

to the United States a sum of 55^15,500,000

in gold, as the indemnity to be paid by Great Britain

to the United States, for the satisfaction of all the

144 THE ALABAMA ARBITRATION.

claims referred to the consideration of the tribunal,
conformably to the provisions contained in Article VIL
of the aforesaid treaty.

And, in accordance with the terms of Article XL
The payment ^^ ^^^ ^^^^ treaty, the tribunal declares
to be a bar. t^^t "all the claims referred to in the
treaty as submitted to the tribunal are hereby fully,
perfectly, and finally settled."

Furthermore it declares, that '* each and every one
of the said claims, whether the same may or may not
have been presented to the notice of, or made, pre-
ferred, or laid before the tribunal, shall henceforth be
considered and treated as finally settled, barred, 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 conformity with the provisions
of Article VII. of the said Treaty of Washington.

Made and concluded at the Hotel de Ville of
Geneva, in Switzerland, the 14th day of the month of
September, in the year of our Lord one thousand
eight hundred and seventy-two.

CHARLES FRANCIS ADAMS.
FREDERIC SCLOPIS.
STAEMPFLI.
VICOMTE d'ITAJUBA.

INDEX

INDEX.

PACE

Adams, Charles Francis 2, 3, 4, 5, 6, 7, 8, 9,

14, 15, 21, 35, 53, 66, 68, 70, 72, 73, 79, 81, 94, 121, 125
Alabama, The 4, 5, 6, 7, 8, 9, 10,

15, 16, 17, 18, 19, 22, 23, 36, 39, 40, 46, 54, 67, 68,
69, 74, 80, 85, 86, 87, 88, 89, 92, 94, 95, 100, loi,
102, 103, no, 112, 113, 114, 116, 117, 120, 123, 126, 127

Alexander Nevski, The 32

Alexander the Second 29, 30

Alexis, Grand Duke 29, 31

Balch, Thomas 40, 42, 43,

44, 49, 50, 52, 80, 81, 84, 108, 109, no

Banks, General N. P 42

Baring, Thomas 12

Bemis, George 99, in

Bernard, Professor Mountague 115, 121

Bright, John 32, 103

Bruce, Sir Frederick 77

Bullock, Captain James D 3, 5

Cape Town 9

Clarendon, Lord 95, 108, 112

Cobden, Richard 35j 36, 37> 38, 39, 43, 44, io5

Cockburn, Sir Alexander 121, 127, 128

Collier, Mr 6

Curtin, Governor Andrew G 28, 29, 30, 31

Cushing, Caleb 121

Dallas, Mr 2

Daily News, the London 86

Dayton, William L 40, 41

Davis, J. C. Bancroft 121, 124, 125, 126

Derby, Earl 76

Dudley, Mr 5, 6

(147)

1 48 INDEX.

PAGB

Evarts, William M 121

Field, David Dudley 80, 82, 83, 84

Fish, Hamilton 108, iii, 112, 113, 114, 115

Florida, The 3, 4, 127

Forster, William E 94

Fox, Hon. Gustavus Vasa 74

Eraser, Trenholm & Company 3>i4

Georgia, The 11, 12, 13

Gettysburg 6

Gortschakoff, Prince 29, 30

Grant, General 7, 108, 109, 113

Greeley, Horace 45

Grey and Ripon, Earl de 115

Hammond, Mr 23

Hatteras, The 10

Hoar, Ebenezer Rockwood 115

Hobart, Lord 83

Holmes, Dr. Edmund W 9

Holtzendorff, von 80, 81

d'ltajub^, Baron 121, 127

Jefferson, Thomas 23

Jonathan to John 11

Johnson, Reverdy 94» 97) 108, iii

Kapp, Friederich 81

Kearsarge, The 8, 40, 41

Laboulaye, Edouard 80

Laird, John 28, 36, 80

Lairds, Messrs 5, 7

INDEX. 149

FAC»

Lawrence, William Beach iii

Lessovsky, Admiral 26, 27, 32, 33, 34

Lieber, Francis 55, 66, 84, 107

Lincoln, President i, 28, 34, 42, 43

Lorimer, Professor James 49» 50. 52, 79

Lowell, James Russell 11

Macdonald, Sir John A 115

Meade, General 6

Melbourne 14

Mexican Expedition 35, 42

Miantonomoh, The (monitor) 74» 75

Moreau, Henry 32, 80, 81

Motley, J. L iii, 112

Napoleon the Third 30, 31, 35

Nelson, Mr. Justice 115

Northcote, Sir Stafford 80, 107, 115

Oreto, The (The Florida) 3, 4, 15, 100

Osliaba, The 32

Palmer, Sir Roundell 36, 121, 125

Palmerston, Lord 25, 26, 30, 35, 36

Peirce, George 28, 31

Peresvety The 32

Popoff, Admiral 25

Provost- Paradol 35, 38, 52

Ripon, Earl de Grey and 115

Rose, Sir John 112, 113

Ross, David 39, 83

Russell, Earl . 2, 3, 4, 5, 6, 7, 8, 9, 14, 15, 21, 24, 25, 26,

30, 35, 36, 53, 66, 67, 68, 70, 72, 74, 76, 80, 92, 100, 120
Russian fleet 24, 30, 33, 38

1 50 INDEX.

PAGE

Sea BridCy The 9

Schenck, General 115

Sclopis, Count Frederic 121, 122

Semmes, Captain 2, 4, 10

Seward, Secretary 34, 55, 66, 77, 78, 79, 97

Shaw-Lefevre, Mr 94

Shenandoah, The {The Sea King) ... 11, 14, 68, 69, 127

Singapore 9

Social Science . 80

Staempfli, Jacques 121

Stanley, Lord 76, 79, 94, 95

Sumner, Charles 32, 35, 36,

37, 95, 99, 104, 106, 107, 108, 109, no

Sumter, Fort i

Sumter, The 2

Tenderden, Lord 121, 124, 125

Thornton, Sir Edward 114, 115

Three Rules, the 116

Trent, The 39

Tribune, the New York 45, 80

Variag, The 32

Vicksburg 7

Vitiaz, The 32

Wachusett, The 4

Waite, Morris R 121

Warrior, The 8

Westlake, John 79, 85, 93

WiUiams, George H 115

Winslow, Captain 40

Yeaman, George H 81, 84

"290" {The Alabama) 5, 6, 7, 16, 17

JX Balch, Thomas Willing

238 The Alabama arbitration

1900

PLEASE DO NOT REMOVE
CARDS OR SLIPS FROM THIS POCKET

UNIVERSITY OF TORONTO LIBRARY

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