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HISTORY AND DIGEST "t
OF THB
INTERNATIONAL ARBITRATIONS TO
WHICH THE UNITED STATES
HAS BEEN A PARTY,
TOGETHER WITH
APPENDICES CONTAINING THE TREATIES RELATING TO SUCH
ARBITRATIONS, AND HISTORICAL AND LEGAL NOTES ON
OTHER INTERNATIONAL ARBITRATIONS ANCIENT AND
MODERN, AND ON THE DOMESTIC COMMISSIONS
OF THE UNITED STATES FOR THE ADJUST-
MENT OF INTERNATIONAL CLAIMS.
i
JOHN BASSETT NIOORE,
HamtlUnt Fish Professor of International Law and Diplomacy, Columbia Vnix'ersity,
JSleTV York; Associate of the Institute of International Im7v; sometime Assnt-
ant Secretary of State of the United States; author of a work on
Extradition and Interstate Rendition, of American
Motes on the Conflict of Laws, etc.
IN SIX VOLUMES.
Volume 1.
WASHINGTON :
GOVERNMENT PRINTING OFFICE.
1 898.
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TABLE OF CONTENTS.
Chaptbb I.
Page.
Thk Saint Croix River: Commission Under Article V op the
Jay Trp:aty 1
Original Boandaries of the United States 1
Article II. of Treaty of 1783 1
Uncertainty of the Descriptions 2
Importauce of the River Saint Croix 2
Mitchell's Map of 1755 3
Rivers Magagaadavic and Schoodiac 3
Action of Nova Scotia and Massachusetts 4
Proposals of the United States 5
Provisions of the Jay Treaty 5
Appointment of Commissioner hy the United States 5
Appointment of Commissioner by Qreat Britain 6
Preliminary Meeting of Commissioners 7
Appointment of American Agent 8
Appointment of British Agent 9
American Commissioner Proceeds to Hal i fax * 9
Formal Meeting of American and British Commissioners 10
Question as to Powers of a Majority of the Commission 10
Qnestion as to Legal Constitution of Commission 12
Selection of the Third Commissioner 13
Formal Organization of the Commission 15
Investigation of Claims 16
Delay in Arguments of Agents 17
Meeting of Commission at Boston 18
Deposition of President Adams 18
Depositions of Indians 20
Deposition of Jay 20
Letter of Franklin 22
Arguments and Documentary Proofs 23
Incompleteness of Surveys 23
Marking of the Saint Croix's Source 23
Meeting of the Commission at Providence 24
Questions Discunsed 24
Intention of the Treaty of Peace 24
The Historical Saint Croix 25
The Boundaries of Nova Scotia 25
Fulfillment of the Treaty of Peace 27
Decision of the Commission 27
ui
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IV CONTENTS.
Page.
Declaration 29
Report of Mr. Benson 32
CHAPTEB II.
Islands in the Bay of Fundy : Commission undbr Article IV.
OF THE Treaty of Ghent 45
Stipulation as to Islands in the Treaty of Peace 45
The King-Hawkesbury Convention 45
Provisionsof the Treaty of Ghent 46
Appointment of a Commissioner by Great Britain 48
Appointment of a Commissioner by the United States 48
Instrnctions of the British Commissioner 49
British Commissioner's Doubts as to Grand Menan 49
Grant of Nova Scotia to Sir William Alexander 50
Commissions of Governors of Nova Scotia 51
Organization of the Commission 52
Secretary to the Commission 52
American and British Agents 52
Question as to British Agent's Commission 53
Claims of the Agents 53
Agreements as to Evidence 53
Arguments of the Agents 54
Replies and Close of Argument 54
Agreement of the Cpmmissioners 55
Signature of the Award •. 60
Expenses of the Commission 61
Letter of the Commissioners and Text of Award 61
Announcement of the Award to Congress 63
Marking of the Water Boundary 63
Chapter III.
The Northeastern Boundary: Commission itnder Article V.
OF the Treaty of Ghent 65
Line in Dispute 65
The •'Highlands " 66
Views of Mr. Sullivan 66
Instructions of Mr. Madison 67
Mistake as to the "Highlands" 68
King-Hawkesbury Convention 68
Revision of Boundary Proposed at Ghent 69
Agreement to Arbitrate 70
Article V. of Treaty of Ghent 70
Appointment of Commissioners 72
Meeting of Commissioners 72
Choice of a Secretary 72
British Agents v 72
Adjournment of Commissioners 73
Difficult Nature of Questions to be Decided 73
Reassembling of Commissioners : American Agent 74
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CONTENTS. V
Commencement of Surveys 74
Meeting of the Commissioners at Burlington 74
Meetings at Montreal and St. Regis 75
Appointment of New Secretary 75
Meetings at New York and Boston : Change in Secretaries 75
Completion of Surveys : Meeting in New York 75
Claims and Arguments of Agents 76
Delays and Expenses of the Commission 76
Prospective Disagreement of Commissioners 77
Northwest Angle of Nova Scotia 78
Northwestemmost Head of Connecticnt River 80
Forty-fifth Parallel of North Latitude 80
Final Disagreement of Commissioners 81
Commissioners' Reports 82
Adjournment of Commission 83
Chaptee IV.
The XORTHIBASTKRN BOUNDARY*. ARBITRATION UNDER THE CON-
VENTION OF September 29, 1827 85
Admission of Maine as a State 85
Disputes between Maine and New Brunswick 85
Aroostook and Madawaska Settlements 85
Arrest of John Baker 86
Negotiations of Mr. Gallatin 87
Convention of 1827 88
Official Maps 89
Limitation of Time for Arbitration 90
Powers of the Arbitrator 90
King of the Netherlands Chosen as Arbitrator 90
Statements of the Parties 90
Design of the Treaty of 1783 91
Ancient Grants 91
Sagadahock 92
Charter of Massachusetts Bay 92
Province of Nova Scotia • 93
Treaty of Paris of 1763 93
Establishment of the Province of Quebec 93
Boundaries of Nova Scotia , 94
Instructions of Congress for Treaty with Great Britain 95
Terms "Atlantic Ocean " and "Sea'' 95
Northwest Angle of Nova Scotia 96
Final Instructions of Congress 96
Report of Special Committee 97
Negotiations at Paris 97
Conclusion of the Treaty of Peace 1)9
Erection of Province of New Brunswick 100
Division of Province of Quebec 100
American Statement before the Arbitrator 100
Question of the "Highlands'' 100
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VI CONTENTS.
P«go.
Northwest Angle of Nova Scotia 101
Term* 'Atlantic Ocean" 101
Ancient Provincial Boundaries 103
Maps from 1763 to 1783 103
Mars Hill 103
North westernmost Ilead of Connecticut River 104
Forty-fifth Parallel of North Latitude 106
British Statement before the Arbitrator 106
Northwest Angle of Nova Scotia 106
Term *' Atlantic Ocean" 107
Design of the Treaty of 1783 108
Limits of Massachusetts Bay : Fief of Madawaska 109
Madawaska Settlement 109
Term** Highlands" 109
Summary of British Argnments as to the Maine Boundary 1 10
North western moat Head of Connecticut River Ill
Forty-fifth Parallel of North Latitude 112
American Definitive Statement 113
Inadmissibility of British Claim 113
Design of the Treaty of 1783 113
Term "Atlantic Ocean" 114
Term "Highlands" 114
Fiof of Madawaska 115
Madawaska Settlement 116
Second British Statement 116
Intention of the Treaty of 1783 116
Ancient Boundaries 117
Maps from 1763 to 1783 118
Forty-fifth Parallel of North Latitude 119
Award of the Arbitrator 119
Analysis of Award 136
Recommendatory Character of Award : Protest of Mr. Preble 137
Mutual Waiver of Award 138
Negotiations of United States with Maine 138
Proposal of Messrs. Livingston and McLane 139
British Proposal for Division of Territory 139
United States' Proposal of the St. John 139
State of Case during Van Buren's Administration 140
Report of Feathers tonhaugh and Mudge 141
Suggestion of Mr. Hale 143
New Surveys by the United States 144
Border Strifes 145
The "Restock War" 145
Mediation of General Scott 146
Mr. Webster's Mode of Procedure 147
Appointment of Lord Ashbnrton 147
Commissioners Appointed by Maine and MasHachusetts 147
Mr. Webster's Plan of Settlement 148
Territorial Results to Maine 150
Navigation of the St. John 150
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C0NTEKT8. VII
Compensation of Maine and Massachusetts 151
Signature of Treaty 151
Provisions of the Treaty 151
Criticism of Treaty in United States and Great Britain 153
Execution of the Provisions of the Treaty 154
The "Red Line" Map 164
Map used by American Commissioners in 1782 156
Boundary between Canada and New Brunswick 157
Interprovincial Arbitration 160
Chapter V.
BOUNDABY ThBOUGH THK SIVER ST. LaWREKCS AND LaKBS ONTA-
RIO, Erie, and Huron : Commission Under Article VI. of thk
Treatt of Ghent 162
Course of the Boundary '.... 162
Provision for Arbitration 162
American Commissioner 163
British Commissioner 163
First Meeting of Commissioners 163
Selection of Secretaries 164
American Agent 164
Beginning of the Line Determined 164
British Agent 165
Changes in the Board 166
Agreement of CommissionerB 165
Principles of Decision 166
Award 166
Free Navigation of Channels 170
Chapter VL
BOL'NDARY FROM LaKE HURON TO THK MoST NORTHWESTERN PoiNT
OF THE Lake of the Woods: Commission Under Article VII.
OF the Treaty of Ghent 171
Agreement of Arbitration 171
Commencement of Proceedings 171
Instructions to Surveyors 172
Prosecution of Surveys 172
Islands in i^t. Mary's River 173
TheNeebish Channels 173
Rules of Decision : Viewsof American Commissioner 174
Rules of Decision : Views of British Commissioner 175
Relative Positions of Commissioners 176
St. Greorge'H Island : British Commissioner's Claim 176
St. George's Island : American Commissioner's Claims 177
Line from Isle Royale to Lac la Pluie 180
Isles Philipeaux and the Long Lake 180
Kaministiqnia River : Claim of Ara<»rican Commissioner 180
St. Louis River : Views of American Commissioner 181
Pigeon River 182
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VIII CONTENTS.
Page.
St. Louis River : Claim of British Commissioner 182
Disagreement as to St. George's Island 184
Agreement on Line from St. George's Island to Isle Roy ale 185
Disagreement as to Line from Isle Royale to Lac la Plnie 185
Agreement on Line from Lac la Plnie 187
Propositions of Compromise 188
Closing Sessions of Commissioners - 189
Expenses of Commission 190
Final Reports and Adjournment 190
Negotiations of Mr. Webster and Lord Ashburton 191
Webster- Ashburton Treaty 193
Comments on the Settlement 194
Treaties of 1854 and 1871 195
Ohapteb VII.
The San Juan Water Boundary: Arbitration under Arti-
cles XXXIV.-XLIL OF THE Treaty of ^ay 8, 1871 196
Boundary from Lake of the Woods to Rocky Mountains 196
Boundary Westward of Rocky Mountains 196
Indefiniteness of Water Boundary 197
Grounds of American Territorial Claim 198
Grounds of British Territorial Claim 199
Early Negotiations 201
Negotiations at Ghent 202
Convention of 1818 202
Ukaseof 1821 204
Rush's Negotiations at London 206
Line of 540 40' 207
Gallatin's Negotiations: Joint Occupation 208
Calhoun -Pakenham Negotiations 209
"Fifty-four Forty or Fight" 210
Mr. Buchanan's Proposals 210
Attitude of Great Britain 211
Mr. McLane's Negotiations 212
Termination of Joint Occupation , 212
The Oregon Treaty 213
Views as to Water Boundary 213
Doubt Raised as to Boundary 215
Bancroft- Palmerston Correspondence 215
British Proposal for Marking Boundary 216
Disputes as to Jurisdiction 217
Commissioners for Running the Line 218
Meeting and Instructions of Commissioners 218
Disaixreement as to W^ater Boundary 219
British Commissioner's Views 219
American Commissioner's Views 220
British Commissioner's Reply 221
American Commissioner's Answer 221
Rejection of Compromise 221
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CONTENTS. IX
Page.
Biitiiih Commissioner's Special Instructions 222
Military Occapation of San Jnan Island 222
Delays in Negotiation 223
Johnson-Clarendon Convention 223
Joint High Commission, 1871 224
Preliminary Disenssions 224
New Evidence - 224
Proposals and Counterproposals 226
Emperor of Germany as Arbitrator 227
American Agent 227
British Agent 228
Presentation of Cases 228
The Emperor's Award 229
Acceptance of Award 231
Definition of Water Boundary 231
Other Boundaries 235
Chapter VIII.
Claims of the Hudson's Bay and Puget's Sound Agricultural
Companies: Commission under the Treaty of July 1; 1863.. . 237
Legal Status of the Claimants 237
The Companies' Possessions 237
Treaty of 1846 238
Companies' Complaints 239
Offer of Sale to United States 239
Treaty of Arbitration 239
American Commissioner 240
British Commissioner 240
Organization of the Commission 240
Counsel 240
Rules 241
Memorials of Claimants 241
Selection of Umpire 241
Taking of Testimony 241
Arguments 242
Amendment of Memorial 243
Close of Cases 243
Oral Arguments 243
Admission of New Evidence 244
Opinions and Award of Commissioners 244
Grounds of Award 244
Claims of Hudson's Bay Company 245
Argument of Company's Counsel 246
Reply of United States Counsel 248
Claim of Puget's Sound Agricultural Company 249
Opposition of United States Counsel 249
British Commissioner's Opinion on Hudson's Bay Company's Claims. 250
Rights of the Company 250
Obligation of the United States - 251
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X CONTENTS.
Page,
Duration of Company's Rights 252
Amouut of Compensation 253
Navigation of Columbia River 253
Posts, Lands, Trade, and Loss and Damage 254
Disrefrard of Prior Offers of Compromise 254
Evidence as to Property and Damages 255
Reasons for Agreeing on Award 255
United States Commissioner's Opinion 256
Convention of 1827 256
Position of the Company in Oregon 257
Possessory Rights 260
Duration of Rights 260
Obligations of the United States 261
Amount of Compensation 261
Navigation of Columbia River 262
British Commissioner's Opinion on Claim of Puget's Sound Agricul-
tural Company 262
Property and Damage 263
Company's Legal Status 263
Measure and Amount of Compensation 263
United States Commissioner's Opinion 266
Article IV. Treaty of 1846 266
Extent of Company's Possessions 267
Amount of Compensation 268
Text of Award 268
Performance of Award 269
Chapter IX.
Impediments to the Recovery of Debts: Commission under
Article VI. op the Jay Treaty 271
Debts Due to British Subjects 271
John Adams's Opinion " 271
Provisions of Treaty of Peace 272
Inexecution of the Treaty 273
Adoption of the Constitution 273
Gouverneur Morris's Negotiations 274
Jay Treaty 275
Compensation of Creditors 275
Provision for Mixed Commission 276
Powers of Commissioners 276
Finality and Payment of Awards 277
Expenses and Vacancies 277
Legislation of Congress 277
American Commissioners 278
British Commissioners 278
Choice of Fifth Commissioner 279
Agents and Secretary 279
Installation of Commission 280
Submission and Examination of Claims 280
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COPtTEIHTS. XI
Qnestion as to Finality of Awards 280
SoQth Carolina Installment Laws 282
Discnssion of General IMnciples 283
Mr. Macdonald's "Notes" 283
Opposition to the *'Notea" 285
Practical Difficaltiee 286
CnDnlngham's Case 287
Allowance of Interest 287
Impending Crisis 288
Caae of Bishop Inglis 288
Withdrawal of American Commissioners 290
Case of Andrew Allen 290
Final Meeting and Raptnre 292
Pickering's Explanations 293
Action of Lord Gren%'ille 294
New Convention Proposed 295
Protest of Lord Grenville 295
Marshall's Reply 296
Negotiations for Settlement 297
Convention of Janaary 8, 1802 298
Chapter X.
TaE Rights ani> Dutibs op Neutrals: Commission Ukdkr Arti-
cle VII. OF THE Jay Treaty 299
Belligerent Pretensions: French Decrees 299
Order in Council, Jnne 8, 1793 300
Protestof United States 302
Order as to Freight and Expenses 303
Order in Council, November 6, 1793 304
Order in Council, Januarys, 1794 305
Jay's Instructions 306
Jay-Grenville Negotiations 307
Article VII 309
Prospective Operation 310
Order in Council, April, 1795 310
Neutrality of United States 310
Course of Genet 311
Decision of June 5, 1793 312
Genet's I^isregard of Decision 312
Action of United States 313
Notes of August 7 and Septembers, 1793 314
Stipulations of Article VII 315
Cases Included 316
Constitution of Commission 316
Powers of Commission 316
Paj'^ment of Awards 317
British Commissioners 317
American Commissioners, Christopher Gore 317
William Pinkney 318
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XII CONTENTS.
Page.
First Meeting of Commissioners 320
Choice of Fifth Commissioner 320
Qualification of Commissioners 321
Notice of Organization 320
Secretary and other Officers 322
Agents 322
Assessors 322
Difference as to Commission's Jurisdiction 324
Loughborough's Opinion 326
Resumption of Proceedings 327
Awards and Delays 328
Notice as to Proofs 329
Question as to Exhausting Judicial Remedies 332
Caseof the "Sally" 333
Opinion of Mr. Gore 335
Arrangement as to Judicial Remedies 335
Effect of Arrangement 336
Business in the Courts 336
Suspension of Board's Proceedings 337
Resumption in 1802 339
Allowance of Interest 339
Illegality of Provision Orders 340
Close of Proceedings 341
Amount of Business Transacted 341
Statement of Mr. Cabot 343
Results of Commission 344
Expenses ^ 344
Immunities of Commissioners 345
Chapter XI.
Difference as to the Treaty of Ghent: Award op the
Emperor of Russia; Mixed Commissions; Domestic Commis-
sions 350
1. Award of the Emperor of Russia.
Possession of Slaves by British Forces 350
Restoration of Property 351
Question as to Private Property 351
Obligation as to Slaves 352
Position of United States .^53
Protocols at Ghent ^ 353
Position of Great Britain 354
Reply of United States ' 356
Great Britain's Modified Position 357
Arbitration Discussed 357
Agreement of Arbitration 358
Award 359
2. Mixed Commissions under Convention of June 30 (July 12), 1822.
Average Value and Claims 363
Two Boards 364
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CONTENTS. Xm
2. Mixed CoinmiBsiona under Convention of Jane 30 (July 12), 1822 — Page.
Continued.
Board under Article II 364
Board under Article III 365
"Definitive List" of Claims 365
Meeting of Board under Article II 366
Secretary and Other Officers 366
Agent of United States 367
Procedure 367
Evidence and Deliberations 367
Qnestion as to Functions of Board 369
Agreement as to Average Value 369
Meeting of Board Under Article III 370
Receipt of ''Definitive List" 370
Omitted Claims 371
Rules of Procedure 371
Docnmentary Kvidence 372
Further Proof '... 373
Powers of Attorney 373
Disagreements of Commissioners 373
Omitted Claims 373
British Evidence 374
Allowance of Interest 374
Dauphin Island 377
Clay's Offer of Settlement 377
British Reply 379
Continued Disag^ement of Commissioners 380
Gallatin's Negotiations 380
New Convention 381
Adjournment of Board 382
3. Commission under Act of March 2, 1827.
Organization 383
Procedure 383
Omitted Claims 384
Conflicting Interests of Claimants 384
Views of Commissioners 386
Close of Commission 389
Chaptkb XII.
The Loki>on Commission of 1853-1855: Convention between
THE United States and Great Britain of February 8, 1853.. 391
Provisions as to the Choice of Umpire 391
Efforts to Choose an Umpire 392
Agreement on Mr. Van Buren 395
Declination of Mr. Van Buren 397
Selection of Joshua Bates 398
The Commissioners 400
The Agents 402
Private Counsel 404
Organization of Commission 404
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XIV CONTENTS.
Page.
Cooperation of Umpire and Commissioners 404
Jurisdiction of the Commission 405
Procedure 406
Provision as to Expenses 406
Extension of the Conmiission 406
Adjonmment of Commission 407
American Claims 407
Cases of ''Comet "and "Ecomium" 408
Cases of the ''Enterprise" and the "Hermosa" 409
Caaeof the"Cresle"... 410
British Claims 412
Comprehensiveness of the Settlement 412
Case oftho Schooner "Lord Nelson" 413
Presentation of Claim by one Government to the Other Unnecessary . 413
Payment of Commission's Expenses 415
List of Claims Before the Commission 419
Chapter XIII.
Reserved Fisheries under the Reciprocity Treaty op 1854 . 426
Treaty of 1783: Convention of 1818 426
Reciprocity Treaty 426
Provision for a Commission 427
Beginning of Commission's Work 427
Season of 1856 428
Designation of an Umpire 429
Commissioners' Work in 1857 430
Delivery of Umpire's Awards 431
Views of United States Commissioner and Surveyor 433
Progress of Commission's Work 436
Changes of Commissioners 437
Close of Commission's Work 438
Report of Mr. Cutts 438
Duties of the Commissioners 438
What Coasts were and were not to be examined 439
The ( -haracter and Extent of the Examination to be Made 440
The Terms UHcd in the Treaty, their Definition and Application 441
The Umpire and his Awards 442
Records of the Commission 443
Results 444
The River St. Lawrence ' 445
Work Left Unfinished ! 445
Causes oftho Delay 445
Expenditures 446
Appendix No. 1 •. 446
Appendix No. 2 447
Text of tlio Umpire's Award 449
No. 1. Vernon 459
No. 2. Orwell 459
No. 3. Seal 460
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CONTENTS. XV
Text of the Umpire's Award — Continned. Vmg^
No. 4. Pinnette 400
No.5. Mamty 460
No. 6. Cardigan 461
No. 7. Bonghton 461
No. 8. Fortune 461
No. 9. Souris 462
No. 10. St.Peter's 1. 462
No. 11. Tryon 462
No. 12. Crapaad 463
No. 13. Winter 463
No. 14. Hunter 463
No. 15. Stanley 464
No. 16. Ellis 4ft4
No. 17. Foxley 464
No. 18. Pierre Jacques 465
No. 19. Brae 4^5
No. 20. Percival 4a5
No. 21. Enmore 466
No. 22. Ox 4(^6
No- 23- Haldiman 466
No. 24. Sable 466
The Miramichi 467
The Buctonche 471
Declarations of the Commissioners 473
No. 3. The River Piscataqua 473
No. 4. The River Merrimack 474
No. 5. The River Ipswich 474
No. 6. The River Taunton 474
No- 7. The River Seekonk, or Providence 475
No. 8. The River Dunk 475
No. 12. Choice of Umpire 475
No. 13. Oath of the Umpire 476
No. 14. Rivers Restigonche, Bathharst, Pokemouche, Tracadie,
TabusintaCy Kouchibouguaoy RichibnctO; Peticodiac,
Shepody, DackviUe, Musquash, Lepran, Magaguada-
vic, Minudie 476
No. 15. Rivers Cocagne, Shedtae, and St. John 477
No. 16. The Rivers Saco, Kennebeck, Penobscot, Union, and
Machias, in the State of Maine 478
No. 17. The Rivers Salmon, Shubenacadie, Avon, and Comwallis,
in the Province of Nova Sootia 479
No. 18. The Rivers Sissiboo and Tuskeet, in the Province of
Nova Scotia 470
No. 19. The River Liverpool, in the Province of Nova Scotia.. . 480
No. 20. The Rivers Le Have and Gold, in the Province of Nova
Scotia 480
No. 21. The River Saint Mary's, in the Province of Nova Scotia . . 480
No. 22. The River Pictou, in the Province of Nova Scotia 481
No. 23. The River Wallace, in the Province of Nova Scotia 481
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XVI CONTENTS.
Declarations of the CommisBionerB — Continued. Paj^.
No. 24. The Rivers Pugwash andPhilip, in the Province of Nova
Scotia 481
No. 25. The Pawcatuck River, the Boundary between the States
of Connecticut and Rhode Island 482
No. 26. The River Thames, in the State of Connecticut, United
States 482
No. 27. Connecticut River, in the State of Connecticut 482
No. 28. The Honsatonic River, in the State of Connecticut 482
No. 29. The Rivers Vernon, Orwell, Seal, Cardigan, Fortune,
Souris, Tryon, Winter, Hunter, Stanley, Ellis, Pierre
Jacques, Percival, Enmore, and Haldiman, in Prince
Edward Island 483
No. 30. The Murray River, in Prince Edward Island*. 484
No. 31. The Bough ton or Grand River, in Prince Edward Island. 484
No. 32. The Foxley River, in Prince Edward Island , 485
No. 33. The River Sydney, in the Island of Cape Breton, in the
Province of Nova Scotia 485
No. 34. The Rivers Mire and Grand, in the Island of Cape Bre-
ton, Province of Nova Scotia 485
No. 35. The River Des Habitans, in the Island of Cape Breton,
Province of Nova Scotia 486
No. 36. The River Mabou, in the Island of Cape Breton, Province
of Nova Scotia 486
No. 37. The River Marguerite, in the Island of Cape Breton,
Province of Nova Scotia 486
No. 38. The River Hudson, in the State of New York, United
States 487
No. 39. The River Saint Lawrence, in the Province of Canada. . 487
No. 40. The Rivers Moisic, Chattie, Saint Anne, Mont Louis, and
Magdalen, Province of Canada 487
No. 41. The Rivers Saint John and Minganm, on the North Coast
of the Gulf of Saint Lawrence, and the River Jupiter,
in the Island of Anticosti, Province of Canada 488
No. 42. The River Fox, in the Island of Anticosti, Province of
Canada 489
No. 43. The Rivers Dartmouth, York, and Saint John, in the
Peninsula of Gasp^, Province of Canada 489
No. 44. The Rivers Grand, Bonaventure, and Grand Casca
. Pediac, Province of Canada, and River Caraquette,
Province of New Brunswick 490
No. 45. The Rivers Cocagne, Shediac, and Saint John, in the
Province of New Brunswick 490
No. 46. The Rivers Susquehanna, North East, Elk, and Sassafras. 491
No.47. Patapsco River 491
No. 48. Chester River 492
No.49. Severn River 492
No. 50. Choptank River 492
No. 51. Patuxent River 493
No. 52. Nantiooke River 493
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CONTENTS. XVII
Declarations of the Commissioners — Continued. Page.
No. 53. Pocomoke River 493
No. 54. Delaware River 493
No.55. River Exploits 494
No. 56. Rivers Gambo and Terra Naeva 494
Chapter XIV.
The Geneva Arbitration.
Situation at Close of Civil War 495
Earl Russell's Rejection of Arbitration 496
Feeling in England 497
Official Expressions 498
Lord Stanley's Proposal 499
Mr. Seward's Reply 499
Mr. Seward's Position on the Belligerency Question 499
Mr. Seward's Suggestion 500
Naturalization Question 501
Resignation of Mr. Adams 501
Mission of Reverdy Johnson 501
Mr. Johnson's Negotiations 503
Objections to Claims Convention 503
Johnson-Clarendon Convention 504
Mr. Seward's Satisfaction 506
Unpropitious Conditions 507
Rejection of the Convention 507
Comments of Lord Clarendon and Mr. Johnson 508
Mr. Sumner's Speech 509
''National Claims" 511
Instrnctions to Motley 512
Motley's Interview with Lord Clarendon 516
Withdrawal of Negotiations from London 519
Unofficial Negotiations 519
Annual Message of 1870 520
Sir John Rose's Second Visit 521
Memorandum of January 11, 1871 523
Mr. Sumner's Memorandum 525
Memorandum of Mr. Fish 526
Conference of January 24, 1871 529
Communication to Lord Granville 530
Lord Granville's Response 531
Accord as to Negotiation 532
The Joint High Commission 535
Procedure of the Commission 537
Instructions of British Commissioners 539
Instructions of the American Commissiuners 540
Mr. Fish's Statement of March 8 541
Definition of Neutral Duty 541
Agreement as to the "Alabama" Claims 543
Subsequent Conferences 544
Signature of the Treaty 546
5627 II
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XVIII CONTENTS.
Provisions as to "Alabama'' Claims 547
Other Subjects Incladed 553
Approval of the Senate 553
Sensation of Relief 554
Criticism of the Treaty 554
Question as to the "Three Rules" 555
Personnel of the Arbitration 556
Neutral Arbitrators 557
Arrangement of the Preliminaries 558
Opening of the Arbitration 559
Count Sclopis as President i 559
Appointment of Secretary 560
Presentation of Cases 560
Case of the United States 560
Chapter on British Unfriendliness 560
Recof^nition of Belligerency 562
The Declaration of Paris 563
Trent Case 565
Expressions of Public Men 565
Neutral Duties ^ 567
Royal Commission of 1867 568
Recognitions of Neutral Duty 570
The Three Rules 572
"Due Diligence" 572
The First Rule 573
The Second Rule 574
The Third Rule 575
The Rules and International Law 575
Effect of Belligerent Commissions 576
The "Santissima Trinidad" 576
The "Gran Para" 577
The "Rappahannock" 578
Enumeration of Neutral Duties 579
Failures to Perform Neutral Duties 580
The Port of Nassau 581
Hospitalities to the Confederates 582
Toleration of Bullock's Transactions .' 583
Case of the "Alexandra" 586
"Lairds' Ironclads" 583
The "Tuscaloosa" at Cape Town 587
Confederate Blockade Runners 588
Careers of the Confederate Cruisers 589
Question of Damages 589
Theory of the American Case 591
The British Case 593
Propositions of International Law 593
Development of War of Secession 594
Proclamation of Neutrality 595
Case of the Sumter 595
The "Georgia" and the "Nashville" 597
Confederate Complaints 598
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CONTENTS. XIX
Page.
International Rights and Duties 598
Character of American Complaints 601
British Laws 603
Contraband and Blockade Running 604
Action on Specific Complaints 605
Action on Complaints 607
The Anglo-Chinese Flotilla 608
The " Florida," "Alabama," "Georgia," and " Shenandoah " 609
Meaning of "Due Diligence" 610
Counter Cases 611
American Counter Case 611
Status of Confederate Agents 612
Effect of Commissions 612
"Due Diligence" 612
Acts of Partiality 613
Prohibitory Legislation 613
Action on American Complaint 614
Concluding Considerations 615
British Counter Case 615
Limits of Neutral Duty 61b
Hospitalities to Belligerents 617
Duty to Detain Belligerent Vessel , 618
Neutral Duties Historically Tested 618
Traffic in Contraband 619
The Nassau Trade 621
Hospitalities to Confederates 622
Measure of Damages 623
Criticism of the American Case 623
Alarm as to the "Indirect Claims" 624
British Government's Action 625
Debate in the House of Lords 625
Debate in the Commons 626
Statements of British Commissioners 627
Statements of American Commissioners 628
A Case of Misunderstanding 628
Statement of March 8, 1871 629
Conference of April 6 -631
Conference of April 8 632
Draft of Articles 634
Discussion of Draft 635
Construction of Treaty in America 637
Construction of Treaty in England 638
Arguments against American Construction 639
Lord Tenterden's Suggestion 641
Proposals by Mr. Fish 641
Adjournment of Tribunal Requested 642
Mr. Adams's Views 642
Negotiations at Geneva 643
Declaration of the Arbitrators 646
New General Arguments Refused 647
Procednreof the Tribunal 648
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XX CONTENTS.
Page.
Aononncement by Mr. Staempfli 648
Case of the "Florida" 649
Special Arguments 649
Decision of Questions of Liability 650
Agreement on a Gross Sum 651
Preparation of the Award 652
Close of the Tribunal 652
Award of the Tribunal 653
Kecital of Provisions of the Treaty of Washington 653
Appointment of Arbitrators 653
Organization of Tribunal 653
Delivery of Cases 654
Delivery of Arguments 654
Deliberations of Tribunal 654
Definition of Due Diligence 654
Effect of a Commission 655
Exterritoriality of Vessels of War 655
Effect of Want of Notice 655
Supplies of Coal 655
Responsibility for Acts of the "Alabama" 655
And of the "Florida" 656
And of the " Shenandoah " after Leaving Melbourne 657
And of the "Tuscaloosa," "Clarence," "Tacony," and "Archer". 657
No Responsibility for the "Retribution," "Georgia," "Sumter,"
" Nashville," " Tallahassee," or " Chickamauga" 657
The "Sallie," "Jefferson Davis," "Jusic," "Boston," and "V. H.
Joy" not Taken into Consideration 658
Claims for Cost of Pursuit not Allowed 658
And for Prospective Earnings 658
Net Freights only Allowed 658
Fifteen Million Five Hundred Thousand Dollars Compensation
Awarded 658
The Payment to be a Bar 659
Sir Alexander Cockbum's Dissent 659
Arbitrators' Expressions as to British Feeling 661
Attitude of Mr. Adams 663
Reception of the Award by the Public 664
Payment of the Award 665
Expenses of the Arbitration 666
Failure to Request Accession to the Three Rules 666
The Three Rules and the Award * 670
An Incident of the "Alabama's" Escape 678
Chapter XV.
Civil War Claims: Treaty between the United States and
Great Britain, OF May 8, 1871 683
Proposal as to Civil War Claims 683
Claims Distinct from "Alabama" Claims 683
Analysis of Claims 684
Proceedings of the Joint High Commission 685
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CONTENTS. XXI
Page.
Ckims for Slaves 685
Fenian Raids 686
Agreement upon Articles 687
Esclnsion of Fenian Kaid Claims 687
Articles Xn.,XVIL, Treaty of Washington 688
Limitation as to Presentation of Claims 688
Duration of CommiBsion 689
Order of Procedure 689
Majority l>eci8ion 689
Agents and other Oflficers 689
Expenses 689
Provision as to Payment of Awards 690
Basalts of the Commission to be Final 61<0
Appointment of Commissioners and other Officers 690
Organization of Commission 691
Appointment of Secretary 691
Sessions in Washington 691
Sessions at Newport 691
Reports of the Agents 692
Business Transacted 692
Disposition of Claims 693
Case of the ''Springbok'' 694
The Confederate Debt 695
General Character and Condact of Business 695
Expenses 696
Associate Counsel 696
Taking of Testimony 696
Special Acknowledgments of Aid 697
Awards, Separate and Final 697
Paymentof FinalAward 69:>
Case of Phelps r. McDonald 699
Chapteb XVL
The Halifax Commission 703
Negotiations of 1782 703
The Treaty of 1782-83 704
'Rights'' and "Liberties" 705
The Fisheries and the Mississippi at Ghent 705
L<»rd Bathurst's Position as to " Rights" and " Liberties" 707
Controversies of 1815-1818 708
Convention of 1818 708
Imperial Act of 1819 710
Nova Scotian "Hovering Act" 710
Headland Theory— Gut of Canso—Question of Traffic 711
Reciprocity Treaty of 1854 711
Termination of Reciprocity Treaty 712
Licensee 712
Dominion Legislation 712
Position of the Imperial Government 712
Instructions of 1870 713
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XXII CONTENTS.
Page.
Action of Colonial Authorities 713
The Joint High Commission 714
Instructions of British Commissioners 714
Instructions of American Commissioners 714
Deliberations of the Joint High Commission 716
Refusal to Renew Reciprocity Treaty 716
The Inshore Fisheries 717
Reciprocity Proposals 718
Final Arrangement 718
Articles X VIII.-XX V., Treaty of Washington 719
Restoration of Fishing Liberties 719
Reservations 720
Free Admission of Fish and Fish Oil 720
Arbitration as to Question of Compensation 721
Provisions for a Mixed Commission 721
Powers of Commissioners 722
Duration of Commission 722
Newfoundland 722
Provisional Proposals 722
Adoption of Legislation 723
Reciprocity Negotiations 724
Appointment of the Halifax Commissioners 725
British Commissioner and Agent 727
American Commissioner and Agent 727
Third Commissi(mer 727
President; Secretary 728
Procedure 728
Affidavits 728
Rules 728
Meeting of the Commission 729
Evidence 729
British Counsel 729
British Case 730
American Counsel 730
Other Officials 730
Reading of Cases and Answers 730
Taking of Testimony 731
Order of Arguments 731
Jurisdiction of Commission as to Questions of ''Commercial Inter-
course" 732
Decision on Commercial Question 734
Close of Evidence 735
Oral Arguments '. 736
Contentions of the Two Governments 736
British Case ; Value of the Coast Fisheries 736
The Liberty of Inshore Fishing 736
The Liberty to Land 737
Transshipment and other Privileges 737
Establishment of Stations 738
Free Markets 738
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CONTENTS. XXIII
Benefits of the Protective Service 738
Compensation Claimed 738
Claim of NewfonndlaDd 739
Aggregate British Claims 739
Answer of United States 740
Value of Inshore Fisheries 740
The Mackerel Fisheries 741
Advantages to British Fishermen 741
Inshore Fisheries of United States 742
Remission of Duties 742
Reeapitnlation 742
Briefon Territorial Waters 743
British Beply 744
Question of Territorial Waters 744
Closing Arguments 744
Award 745
Reservation hy American Agent 746
A^ionmment 746
Ahsenoe of any Dissenting Opinion 746
Qnestion as to Mr. Delfosse 746
Documents and Proceedings of Commission 747
Appropriation for Payment of Award 748
Representations of Mr. Evarts 748
Reply of Lord Salishary 750
Payment of the Award f. 752
Ghapteb XVII.
Fur Skal Arbitration 755
The Rnssian-American Company 755
Ukase of 1821 756
Protest of the United States 756
Protest of Great Britain : Agreement to Negotiate 759
Instmctions to Mr. Middleton 759
Convention of 1824 760
Rosso-British Convention of 1825 762
Ceflsionof Alaska to the United States 763
Legislation of the United States 763
Act of 1889 764
Lease of the Seallslands in 1870 767
Mr.Bontwell's Letter of 1872 767
Mr.French's Letter of 1881 769
Mr. Manning's Letter of 1886 769
Seizures in 1886 770
Lack of Officialln formation as to Seizures 771
Orders for Release of Vessels 772
Request for Assurances against Seizures in Future 773
Reception of Judicial Proceedings at Washington 773
Seizures in 1887 774
Condemnation of Vessels 776
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XXIV CONTENTS,
Nonexecntion of Orders of Release 775
PropoBal for Protection of Fur Seals by Joint Action 776
Responses of Foreign Governments 776
Great Britain's Response 777
Mr. Bayard's Proposals for an Arrangement 777
Negotiations in London 781
Suspension of Negotiations 782
Suggestion of Mr. Phelps 782
Circumstances under wliich Negotiations were Suspended 784
Renewal of Seizures in 1889 784
Positions of Mr. Blaine 785
Negotiations at Washington 787
Sir Julian Pauncefotc's Proposal of a Commission of Experts and a
Modus Vivendi 788
Rejection of the Proposal 789
Formal Protest against Further Seizures 790
Conditions Proposed by Lord Salisbury 792
Lord Salisbury's Argument on Questions of Right 793
Mr. Blaine's Argument as to Russian Rights in Bering Sea 794
Lord Salisbury's Answer and Offer of Arbitration 795
Mr. Blaine's Reply ; the ** Pacific Ocean ; " Questions for Arbitration. 796
Agreement on a Modus Vivendi 797
Agreement for a Commission of Experts 798
Conclusion of a Treaty of Arbitration 799
Questions of Right and of Regulations 800
Question of Damages 801
Joint Commission of Expert* 802
Discussion as to a New Modus Vivendi 802
New Modus Vivendi and the Question of Damages 804
Constitution of the Tribunal of Arbitration 805
Delivery of Cases 806
Question as to the British Case and the Order of Procedure 806
Report of Joint Commission of Experts 808
Delivery of Counter Cases 809
Meeting of the Tribunal of Arbitration 809
Case of the United States 810
Forgery of Translations 814
The British Case 816
Counter Case of United States 821
Russia's Action in 1892 823
British Counter Case 826
Printed Argument of Mr. Carter ; the Nature of Law 827
Questions of Jurisdiction and of Property 830
Questions of Property and Protection 831
The Institution of Property 833
Extent of Dominion Over Things 834
Application of Principles to the Fur Seals 835
Mr. Phelps's Written Argument 839
Defense and Jurisdiction 840
Right of Visitation and Search in Time of Peace Asserted 842
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CONTENTS. XXV
Pftge.
British Claim of ImpTesBment 843
Extraterritorial Operation of Statntee and Regulations 843
Character of the United States Claim 844
Farther Arguments for the United States 844
Printed Argument of Great Britain 845
Nature of the Fur Seal 846
Questions of Property and Protection 847
The Lawfulness of Taking Seals on the High Seas 848
Question of Protection Apart from Property 849
Mr. Carter's Oral Argument 849
Husbandry in Respect of Animals 850
Application of Doctrines to the Fur Seal 851
Limitations on the Dominion over Things 852
Difference between Seals and Certain Wild Animals 854
The Duty of Protection and the Laws of the United States 856
The Rights of the United States and the Question of Monopoly 858
The Right of the Indians to take Seals 860
Property in the Industry on the Pribilof Islands 864
The Right to Protect the Industry 864
The Case of Oyster, Pearl, and Coral Beds 865
The Nature of the Protection Required 866
Self-Defense in Time of Peace 868
Revenue Legislation 868
Extent of United States Claim 869
Oral Argument of Sir Charles Russell 870
The Nature of International Law 870
The Question of Pelagic Sealing 872
Motives of the United States 875
Novelty of Claim of United States 876
Property in Seals and Seal Herds 876
Seal Hunting by Indians 877
Classification of the Seal , 879
Absence of Care by Man 879
The Animus Revertendi 881
The Right of Property Ratione Soli 881
The Nature of the Seal 882
The Question of Identification 884
Property Dependent upon Municipal Law 884
The Question of "Husbandry" 886
Limitations of the Dominion over Things 887
The Sealing Industry 889
Right to Protect the Industry 892
Examination of the Authorities cited by the United States 895
The Claim of Impressment 898
Examination of Analogies 899
The Argumentum ad Hominem ; the Pearl Fisheries 901
Position of United States as to Visitation and Search 902
Question as to Mr. Elliott's Report 904
Question as4o Procedure 907
The Functions of the Agents and Counsel 910
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XXVI CONTENTS.
Page.
Shorthand Reports 910
Questions Addressed by Arbitrators to Counsel 911
Admission of Docaments 911
Illness of an Arbitrator 912
Absence of a Cosecretary 912
Sessionsof the Tribunal 912
Order of Oral Arguments 912
Conclusion of Hearing 913
Deliberations Concerning the Award 914
Russian Rights of Jurisdiction and Fishing in Behring Sea 914
Recognition of Russian Rights by Great Britain 916
The Phrase '' Pacific Ocean " and Russian Rights after 1825 916
Transfer of Russian Rights to the United States 917
The Rights of Protection as to Fur Seals 917
The Limits of Territorial Waters 920
The Rights of Individuals as to the Taking of Seals 921
The Question of Regulations 922
Draft of Articles 925
First Article 925
Second Article 925
Third Article 927
Fourth and Fifth Articles 927
Sixth Article 927
Seventh Article 927
Eighth Article 927
Ninth Article 928
Adoption of the Regulations 929
Declarations Respecting the Regulations 929
Damages and Findings of Fact 929
Settlement of the Final Award 930
Signing of the Award and Declarations 931
Open Session and Adjournment 931
Text of the Award 935
The Result of the Award 957
Damages 960
Chapter XYIII.
Question of a Permanent Treaty of Arbitration between
THE United States and Great Britain 962
Chapter XIX.
Spanish Spoliations: Commission under Article XXI. of the
Treaty between the United States and Spain of October
27,1795 * 991
Belligerent Spoliations 991
Thomas Pinkney's Mission to Spain 992
Position of Spain 992
Particular Complaints 994
Ultimate Disposition of Complaints 996
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CONTENTS. XXVII
Proposal of Arbitistion 996
DiBcussion of Stipulations 997
Conclusioii of a Treaty 998
Article XXI 999
Proceedings of Commission 1000
Results of Commission 1004
Chaptbb XX.
Cask of thk "Colonkl Llotd Aspikwall'* 1007
Seizure of the Vessel HW7
The Vessel's Detention 1007
Protest of Mr. Fish 1008
Order of Release 1009
Delays in Execntion of the Order 1010
Final Arrangement for the Release 1011
Release of the Vessel 1013
Arbitration as to Damages 1013
Arbitrators and Umpire 1013
Umpire's Award 1014
Ghaptsb XXL
Spanish Claims Commission: Aorkxmsnt of February 12, 1871. 1019
Revolation in Spain 1019
Insurrection in Cnba 1019
Captain-General Dnlce 1020
The Spanish "Volunteers" 1020
Decrees as to Infidencia 1021
Dennneiation of Intercoorse with Enemies 1021
Decree as to Alienation of Property *. 1022
Proclamation of Connt Valamseda 1023
The Central Republican Junta 1023
Embargo of Estates 1025
Proposals for Cuban Independence 1026
Mission of Mr. Forbes 1028
Arrival of General Sickles in Madrid 1027
Conditions Proposed by General Prim 1027
Withdrawal of Oflfer of Mediation 1028
Spanish Forces in Cuba 1029
Complaints of the United States 1029
Demands for Redress 1032
Negotiations of General Sickles 1033
Statementof Mr. Sagasta 1034
Question as to Embargoed Estates 1035
Cases of Arrest 1037
Conditions of Redress 1037
Reply of General Sickles 1037
Urgent Proposals for a Mixed Commission 1038
Difficulty as to Military Tribunals 1038
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XXVIII CONTENTS.
Page.
Change in the Spanish Government 1040
Conclusion of an Agreement 1040
The Natnralization Question 1041
Object of the Commission 1045
Organization of the Commission 1046
Taking of Testimony in Cuba 1048
Adjournment 1049
Results in Forty-two Cases 1049
Summary of Commission's Work 1050
Expenses 1052
Payment of Awards 1052
Concluding Details 1053
Chapter XXII.
Cask of the "Masonic" 1066
Seizure of the " Masonic'' 1055
Diplomatic Protests 1056
Diplomatic Correspondence 1056
Administrative and Judicial Proceedings 1057
Discussions at Madrid 1059
Agreement of Arbitration 1060
Selection of an Arbitrator 1060
The Award 1062
Grounds of the Award 1064
Paymentof the Award 1069
Chapter XXIII.
Case op the Brig "General Armstrong:" Convention be-
tween THE United States and Portugal op February 26,
1851 1071
Hostilities at Fayal 1071
Intervention and Report of Governor Ribeiro 1072
Report of Mr. Dabn ey 1074
Protest of Captain Reid 1075
Report of Captain Lloyd 1076
Affidavit of Lieutenant Faussett 1077
Captain Lloyd's Account of the Brig's Destruction 1078
Defenseless Condition of Fayal 1079
Claim against Portugal 1079
Correspondence at Rio de Janeiro 1080
Revival of the Claim 1082
Instructions of Mr. Webster 1085
Decisions of Mr. Upshur and Mr, Calhoun 1086
Action of the Senate ^^ 1087
Course of Mr. Clayton /\ 1089
Portugal's Final Offer of AThif^^'''^fi 1^1
Mr. Webster's Acceptance of 4 ^^ jjtion 1092
Award of tiieArbitrafor.... %i^^ _ 1092
Protest on behalf of the C}fi]j'^s^^ ^'\ 1097
Appeal to Congreas ^ ^%^^ ^^' ^^^
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CONTENTS. XXIX
Page,
Debate in the Senate lOUJI
Reference to the Coart of Claims 1102
Opinion of Jadge Blackford 1102
Qaeetion aa to First Aggression 1102
Liability of Portugal 11(0
Propriety of Arbitration 1106
Liability or United States HOB
Charges of Mismanagement 1105
Powers of Government 1107
A Qaestion of Bounty 1108
Views of Judges Scarbnrgh and Gilchrist 1108
Final Payment of the Claim 1109
Question of Neutral Obligation 1115
Case of the ''Kearsarge" 1117
Use of Neutral Territory as Base of Operatious 1119
Exception Suggested by Bynkershoek 1120
Belligerent Duty of Restitution 1122
The Question of Neutral Duty 1123
Opinion of Sir Leoline Jenkins 1124
The Affair at Lagoe 1126
Results of Precedents 1128
American Precedents 1129
Chapter XXIY.
Fbknch and Amrricax Claims Commission: Conyention of Jan-
uary 15, 1880 1133
Conclusion of the ConTeotion 1133
Jurisdiction of the Commission 1134
MisceUaneons Provisions 1135
Act to Execute the Convention 1135
Organization of the Commission 1136
Inspection of Papers 1137
Cessation of Functions of French Commissioner 1138
Taking of Testimony 1140
Withdrawal of Claims 1141
Power of Commission to Determine its own Jurisdiction 1 143
Question as to Territorial Jurisdiction 1145
Extension of the Commission 114H
Second Extension 1147
Adjournment and Final Award 1148
National Character of Claimants 1150
Mr. Boutweirs Report 115i)
Expenses of the Commission 1159
Delays in Transaction of Business 1161
Chapter XXY.
The Carlos Butterfield Claim: Convention between the
United States akd Denmark of December 6, 1888 1185
Agreement of Arbitration 1185
Notification of the Arbitrator 1186
Antecedents of the Claim 1187
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/
XXX CONTENTS.
The Alleged Seizure and Detention 1189
The Firing into the '*Ben Franklin" 1195
Argament in Support of the Claim 1198
Argument Against the Claim 1200
Award 1203
Ohaptee XXVI.
United States and Mexican Claims Commission: Convention
OF April 11,1839 1209
Revolutions in Mexico 1209
Claims of the United States 1212
The Gorostiza Pamphlet 1213
Mr. Van Bnren's Measures 1214
Opinions in Congress 1215
Negotiation of a Convention 1216
Convention of April 11, 1839 1218
Provision for an Umpire 1218
Provision for Payment of Awards 1219
Act of Congress 1219
Meeting of the Commission 1220
Question as to Oaths 1221
Organization of the Board 1223
Appointment of Umpire 1224
Controversies as to Functions and Procedure 1224
Order of Examination of Claims 1225
Character of the Board's Functions 1226
Question of Access to the Board 1227
Rules Adopted 1228
Mode of Presenting Claims 1229
Disposition of Cases 1230
Reports to the Umpire 1230
End of the Commission 1231
Unfinished Business and its Cause 1232
Suspension of the Board's Sessions 1235
Disposition of Papers 1236
Services of the Umpire 1237
Baron Roenne's Reports 1238*
Jurisdiction of the Board 1241
Interest 1243
Liability of Belligerents 1243
General Character of Claims 1244
Delays in Payment 1244
A New Claims Convention 1246
The Mexican War 1246
Payment of Liquidated Claims 1248
Treaty of Guadalupe Hidalgo 1248
Act of March 3, 1849 , 1249
Provisio;! as to Contested Rights 1250
Organization of the Board 1251
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CONTENTS. XXXI
Page.
Further Record 1252
Close of the CommisBion ^ 1253
Amount Awarded 1253
Interest 1254
Awards 1254
Opinions 1254
Sessions 1254
Memorials 1254
Disposition of Claims 1254
The Gardiner Case 1255
Criticism of Commission 1261
Decisions as to Powers and Jurisdiction 1267
Procednre and Practice 1269
Effect of Convention of 1839 1273
Claim of Aaron Leggett 1275
Contract Claims 1279
Chaptbb XXYII.
United States and Mexican Claims Commission: Convention
OF July 4, 1868 1287
General Arbitral Agreement 1287
Pressure of Foreign Claims 1288
Convention between France, Great Britain, and Spain 1289
Hostile Operations 1290
Claims of the United States and Mexico 1291
Convention of July 4, 1868 , 1292
Provisions as to the Commissioners 1293
Provisions as to an Umpire 1293
Mode of Investigating Claims 1294
Record of Proceedings 1295
Provisions as to Expenses 1295
Act of Congress 1295
First Meeting of the Commissioners 1296
Extensions of the Commission 1297
Changes in the Commission 1299
The Umpires 1299
The Agents 1303
The Secretaries 1305
Suspension of the Commission 1305
Disposition of the Indian Depredation Claims 1307
Last Meeting of the Commissioners 1309
Final Proceedings of the Umpire 1309
Disposition of Claims 1310
Mode of Paying Awards 1315
Interest 1317
Pecuniary Results of the Commission 1319
Weil and La Abra Cases 1324
Commissioners' Opinions on the Weil Claim 1324
Umpire's Award 1326
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XXXII CONTENTS.
Pag«.
Commissioners' Opinion on La Abra Claim 1327
Umpire's Award 1328
Refusal of a Rehearing 1329
Reservation by Mexico 1330
Act of June 18, 1878 1332
Mr. Evarts's Report 1334
Judicial Proceedings Attempted by Mexico 1336
Payments on Weil and La Abra Awards 1336
Convention for a Rehearing 1337
Refusal of Mandamus by Supreme Court 1338
Rejection of the Convention 1339
Report of Committees on Foreign Relations 1340
Other Committee Reports 1343
Mr. Bayard's Report 1343
Second Refusal of a Mandamus 1345
Report on La Abra Claim 1347
Acts of 1892 1347
The* 'Pious Fund" 1348
Jurisdictional Questions 1352
Procedure and Practice 1355
Arbitral Provisions as to Boundaries 1358
Chapter XXVIII.
The Panama Riot and Other Claims: Conventions between
THE United States and New Granada of September 10, 1857,
AND the United States and Colombia op February 10, 1864. 1361
I. Convention of 1857 1361
Terms of the Convention 1361
The Panama Riot 1362
The Treaty of 1846 1366
The Acknowledgment of Liability 1367
Organization of the Commission 1371
Mr. Leavenworth's Commission 1371
Appointment of Umpire 1372
Question as to the Ratification of the Convention 1372
List of Claims 1373
The Presentation of Riot Claims 1375
Liability for Riot Claims 1378
Matters of Procedure 1380
Interest 1381
Adjournment X3f<2
Mr. Leavenworth's Report 1384
Claims and Awards 1385
Interest 1386
Opinions 1387
Contested Awards 1387
Insufficiency of Time 1387
Records of the Commission 1390
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CONTBirrB. XXXIII
n. ConTention of 1864 1396
New Commiasion 1396
Meeting of the New CominiaBion 1397
Selection of an Umpire 1397
The *<Uiiipire Cases" 1397
Protest of Mr. Hurtado 1401
Mr. Leavenworth's Connter Protest 1403
Statement of Mr. Upham 1405
Diplomatic Discnssion 1405
Reservation of Payment 1407
Submission to New Commission 1407
Cases of La Constancia, Good Retnm, Medea, and John D.
Danels 1407
Caseof Gibbs 1410
Proceedings and Adjournment of Commission 1411
Capitation Tax Case 1412
Besnltsof the Commission 1415
Ohapteb XXIX.
Case of the "Montijo'': Aorbkmknt bitwebn the United
States and Colombia of August 17, 1874 1421
Seizure of the*' Montijo" 1421
Bepreeentations to Colombia 1422
Presentation of Claims 1423
Agreement of Arbitration 1424
Proceedings of the Commission 1426
Award of the Umpire 1426
Points of Agreement 1427
Reasons of the Colombian Arbitrator 1429
Question of Domicil 1430
Question of Neutral Conduct 1431
Nationality of the Crew 1433
Question of Military Justification 1434
Questions of Evidence 1434
Question as to Navigation License 1436
The Effect of Amnesty 1438
National Kesponsibllity for State Acts 1439
Opinion of the Arbitrator of the United States 1442
Grounds of Decisions 1443
Disallowance of Interest 1445
Amount of the Award 1445
Payment of the Award 1446
Ghapteb XXX.
Case of the Brio "Macedonian:" Convemtion between the
United States and Chile of November 10, 1858 1449
Origin of the Case 1449
Coxtespondence at Santiago 1452
Mr. CarvaUo's Mission 1453
6627 ^m
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XXXIV CONTENTS.
Page.
Chilean Statement 1463
Answer of Mr. Gillett 1456
Subsequent Correspondence 1468
Convention of Arbitration 1459
The Arbitrator's Acceptance • 1461
Submission of Cases 1462
Rendition of the Award 1462
Text of the Award 1463
Ohapteb XXXI.
United States and Chilean Claims Commission: Convention
OF August 7, 1892 1469
Provisions for Arbitration 1469
Organization of the Conmiission 1470
Adoption of Rules 1470
Meeting of October 9 1473
Public Sessions 1473
Question as to Private Counsel 1473
Final Session 1474
Agent's Report 1480
Chapter XXXII.
Cliam of the United States and Paraguay Navigation Com-
pany: Commission under the Convention between the
United States and Paraguay of February 4, 1859 1485
Origin of the Company 1485
The Company's Misfortunes 1485
Difficulties of Company's Agent 1486
Case of the "Water Witch" 1487
Treaty of 1853 1489
Nonpresentation of the Company's Claim 1491
Message of President Buchanan 1492
Joint Resolution of Congress 1493
Expedition to Paraguay 1493
Provision for Arbitration 1494
Organization of the Commission 1496
Statement of the Claimants 1496
Statement of Paraguay 1499
Award ^ 1500
Opinion of Mr. Johnson 1502
Mr. E.A.Hopkins 1602
Policy of President Carlos Antonio Lopez 1502
Aid Extended to the Company 1503
Jurisdiction of the Commission 1504
Various Demands of the Company 1507
Questions of Liability 1612
Charges of Expulsion 1514
Case of Mr. Hopkins's Brother 1615
Acts of Ajinoyance 1516
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CONTENTS. XXXV
Provocfttionfl 1616
Groandlessness of Charge of Ezpnlsion 1519
The Company's Property and its Disposition 1522
Concluding Observations 1528
President Buchanan's Annoyance 1538
Comments on the Award 1540
Suspension of the Claim 1542
Renewal in 1885 1543
The Case of the Paraguayan Jewels 1545
GHAPTSB XXXIII.
Claimb against Costa Rica: Coitvkmtion bbtwsxn thx Ukitbb
States and Costa Rica of July 2, 1880 1551
Provisioiis for Arbitration 1551
Organization of the Commission 1652
Session of March 12 1553
Appointment of Umpire 1553
Transaction of Bnaineas 1554
Adjournment 1554
ConmiiBflioners' Report 1565
The Umpire's Report 1657
Records of the Conmiission 1557
The Belligerency Question 1558
Chapter XXXIV.
EcuADOBiAN Claims Commission: Convention bbtwvkn the
United States and Ecuador of November 25, 1862 1569
Provisions of the Convention 1569
Constitution of the Commission 1571
Results of the Commission 1572
Cases of ''Medea" and <' Good Return'' 1672
Question as to the Survival of Treaties 1674
Mr. Hassaurek's Report 1675
Chapter XXXV.
The Santos Case: Convention between the United States
AND Ecuador of February 28, 1893 1579
Arrest and Imprisonment of Mr. Santos 1579
Request for Release 1580
Reply of Ecuador 1581
Further Action 1581
Mission of Mr. Flores 1582
Release of Mr Santos 1584
Question of Citizenship 1585
Convention of Arbitration 1587
Settlement of the Claim 1588
Arbitrator's Award 1591
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XXXVI CONTENTS.
OHAPTEB XXXVL
Cases op the "Georgiana" and the '* Lizzie Thompson:"
Contention between the United States and Peru of
December 20,1862 1593
The Vivanco InBurrection 1593
The "Georgiana" and the " Lizzie Thompson " 1585
Protest of Mr. Clay 1595
Correspondence at Washington 1597
Opinion of Attorney-General Black 1602
Mr. Osma's Reply 1604
Opinion of Mr. Keverdy Johnson 1606
Snmmary of Argnments 1606
Knptureof Diplomatic Relations 1606
Agreement of Arbitration 1610
Declination of the Arbitrator to Act 1611
Abandonment of the Claims 1612
Case of Raborg 1613
GnAPTBR XXXVIL
Peruvian Claims Commission: Convention between the
United States and Peru of January 12, 1863 1615
Provisions of the Convention 1615
Organization of the Commission 1616
Selection of an Umpire 1617
Secretaries and Agents 1617
Proceedings of the Commission 1618
Final Report 1619
Case of the "Alleghanian" 1621
Case of Louis Brand 1625
Case of Henry E. Kinney 1626
The Alsop Claims 1627
Case of Crosby 1629
Claims of £aston, Barney, and Allen 1629
The Montano Case 1630
Chapter XXXVIII.
Peruvian Claims Commission : Convention between the United
States AND Peru OF December4, 1868 1639
New Claims Convention 1639
Jurisdiction of the CominiQ^ion 1639
Organization of the CoflnQ.jon 1640
SeleotioBof Umpirea .. ^ 1641
ProceedingaoftheCot^i^:'^'''' 1641
Appointment of a 8peci^Si(^^ /iUioner 1642
PriDciples of Deoiaioti ^ Q^tP' 1W3
Rate of ^SxchoDge . ^ '**^ 0^^ ^ ^ - ■ ^^^
Mr. Vidal'a Heport, ""*^*, '^ • '^ •' 1645
ClBiwg3sraiastPeru''^-s ^\ y " ''' 1645
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C0KTENT8. XXXVII
Protests 1647
Defects in Jarisdiotion 1647
The Bar of the Convention 1648
Sessions and Expenses 1648
The Montano Claim 1649
Acknowledgments of Courtesies 1649
Claim of WendeU 1649
Claim of Hevner 1660
Claims of Rosenwig and others 1651
Cases Nos. 4, 5, 6, 11, 13, 14, and 15 1652
Case of Bnden & Co 1668
Case of George Hill 1665
Case of R.T. Johnson 1656
Chapter XXXIX.
Claims against Vbnrzusla: Commission Under the Convbn-
tions between the united states and venezuela of april
25, 1866, December 5, 1888, March 15, 1888, and October 5, 1888. 1669
Conmiission of 1867-^ 1659
Charges of Frand 1660
Investigation 1661
Joint Resolution of 1883 1663
Negotiations 1665
Report to Congress 1669
Mr. Rice's Report 1669
Convention of December 5, 1885 1674
Convention of March 15, 1888 1674
Organization of Commission 1676
General Qnestions 1677
Results of the Commission 1689
Action on "Old Cases" 1691
Chapter XL.
Cuum of the Venezuela Steam Transportation Company:
Convention between the United States and Venezuela
OF January 19, 1892 1693
Exceptional Character of the Claim 1693
Antecedents of the Claim 1693
Navigation of the Orinoco 1696
The Claimant Company 1698
The "Blues'' and the "Yellows'' 1699
Seizure of the "Hero" 1699
Seizure of the "Notrias" 1700
Seizure of the "San Fernando" - 1700
Second Seizure of the "Nutrias" 1701
Refosal to Grant Clearances 1701
The Perez Concession 1701
Diplomatio Correspondence 1702
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XXXVin CONTENTS.
Page.
Mr. Flail's InstruotionB 1702
Reply of Venezuela 1702
Farther Correspondence 1704
Joint Resolution of 1890 1706
Execution of the Resolution 1706
Convention of Arbitration 1709
Appointment of Commissioners 1710
Organization of the Commission 1711
Statement of Claim 1712
Answer of Venezuela 1715
Hearings 1716
Argument for the United States 1716
Argument for Venezuela 1719
Final Argument 1722
Award 1723
Dissenting Opinion 1724
Chapter XLI.
Cask op the Whale Ship "Canada": Protocol between the
United States and Brazil of March 14, 1870 1783
Wreck of the "Canada" 1733
Diplomatic Correspondence 1734
Agreement of Arbitration 1735
Questions at Issue 1736
Award 1742
Chapter XLII.
Claims of Pellftier and Lazare: Protocol between the
United States and Hayti of May 24, 1884 1749
Terms of the Submission 1749
Evidence 1750
Counsel 1760
Rule of Decision 1750
Beginning of the Arbitration 1751
Opening of the Pelletier Case 1751
Order of Proof 1751
Taking of Testimony 1752
Close of the Pelletier Case 1756
Case of Lazare 1756
The Awards 1757
Impugnment of the Awards 1793
Mr. Bayard's Report 1793
Pelletier Case 1794
Lazare Case 1800
Gratification of Hayti 1804
Subsequent Action 1805
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CONTENTS. XXXIX
Ohapteb XLIU.
Thk Casx of Chablbs Adbiak Van Bokkklcn: Pbotocol
BKTWXKK THK Umitbd Statbs AND Hatti OF Mat 24, 1888 1807
Origin of the Case 1807
Request for Helease 1809
Haytian Response 1811
Claim for Redress 1812
ArbitraUon 1812
Opinion of the Arbitrator 1813
Statement of Claim 1818
Proceedings and Pleadings 1813
Statement of Facts 1814
Arrest and Imprisonment 1815
Decisioa of the Civil Court 1816
Decision of Court of Cassation 1817
Diplomatio Intervention 1817
Prisoner's Release 1818
Demand for Damages 1818
Questions to be ilrbitrated 1819
Contentions of the Hay tian Government 1821
Judicial Character of Treaties 1830
Case of Napier V. Riobmond 1830
Caseof ChaUierv.Ovel 1836
Cai«e of Balestrin v. Anbert 1837
Case of Maryat r. Wilson 1839
The Head-Money Cases 1841
Treaty of November 3, 1864 1842
Judgments of the Haytian Courts 1843
Cession de Biens 1847
Interpretation of Treaties 1848
Inconsistent Positions of Hayti 1851
Award 1852
Payment of the Awacd 1852
Ohapteb XLIV.
MiNOB OR PkndinoCases 1855
1. The Savage Claim 1855
2. The Asbmore Fishery 1857
3. Riots at Port an Prince 1859
Civil Commotions 1859
Mixed Commission 1860
The Williams and Foumier Claims 1861
4. The KellettCase 1862
5. The Delagoa Bay Railway 1865
Annual Message of December 1, 1890 1865
Prior Negotiations 1865
Nomination of Arbitrators 1872
Conelnaion of aProtoeol 1872
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XL CONTENTS.
5. The Delagoa Bay Railway^Contiiiaed. PagB.
Order as to Prooeduie 1876
Pleadings 1878
Memorial of the United States 1878
Portngnese Answer 1883
Opinion of MM. Lyon-Caen and Renault 1891
Opinloneof M. Melli 1896
Present Status of the Arhitration 1899
6. The Cheek Claim 1899
The Siamese Reply 1907
Chapter XLV.
The Bulama Arbitration: Protocol bbtwbbn Great Britain
and portuoai. of january 13, 1869 1909
Subject in Dispute 1909
Diplomatic Discussion of 1864 1910
The Portuguese Title 1910
The British Title 1912
Agreement of Arbitration 1914
Arbitral Proceedings 1914
Mr. Davis's Report 1916
Award 1920
Chapter XLVI.
Thb Middlb Chaco Arbitration : Treaty between the Argen-
tine Republic and Paraguay of February 3, 1876 1923
Territory in Dispute 1923
Submission of Cases 1924
Paraguayan Claim 1928
The Argentine Claim 1936
Summary of Arguments 1940
The Award 1943
Chapter XLVII.
The Costa Rican-Nicaraguan Boundary: Treaty of December
24,1886 1946
Proceedings 1945
The Award 1964
Further Arbitration 1967
Chapter xlviii.
The Misionks BouNDAj^y. Tb*aty between the Argentine
RBPUBUC and BraZxi^ -. fi^PTEMBER 7, 1889 1969
Treaty of Arbitration. , ^^ 1969
RepreeeDtativeeoftheA^"-, ^ t'lRepublic and Brazil 1969
Tbe Argentine Caae..^^^i^^p^ 1970
^*/* ^ ^i^^
""X^"""
Span/sbViacoretjaa^'/^^s .'\ 1970
^^ao^i'ow^an «et*«,''^r»*:„^ 1974
Google
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CONTENTS. Xlil
Page.
POrtngaefle Aggreeeioiis 1975
Treaties between Spain and Portugal 1976
Mapof the Conrte 1978
Treaty of 1761 1978
Nollifieation of the Treaty of 1750 1979
Treaty of 1777 1979
Treaty of 1778 1981
Demarcation of 1789-1791 1981
The Uti Possidetis 1982
Treaty of 1857 1983
Beopeningof Controversy in 1876 1984
Renewed Negotiations 1986
Action of the Brazilian Bepnblic 1987
Alleged Possession by Brazil 1987
The Case of Brazil: Question to be Decided 1989
The Rivers Pepiry and Santo Antonio 1990
Bases of Decision • 1991
Treaty of Tordesillas 1992
Enlargement of Brazilian Boundaries 1993
Treaty of 1750 1995
The Map of the Courts 1997
Instructions of 1751 1998
Special Instructions of 1758, and the Interpolation as to the Pepiry . 1999
Contents of the Special Instructions of 1758 2000
Demarcation of 1759-60; the Pepiry 2002
The Santo Antonio 2008
Objections to the Demarcation of 1759-60 2003
The Bearing of the Map of the Courts 2004
Treaty of 1777; Demarcation of 1759-60 Ratified 2008
Spanish Instructions of 1778-79 2010
Proceedings of the Commissioners: The Pepiry-Guacn Identified. . . 2010
Question raised by the Spanish Commissioner in 1789 2011
Nonapproval of the Spanish Government 2012
Misuse of the Term'* Misiones*' 2013
Route of Cabezade Vaoa 2015
Date of the Argentine Claim 2016
Brazilian Settlements 2017
Argentine Maps 2019
Concluding Observations 2020
The Award 1 2020
Reception of the Award 2023
Question as to the Exchange of Cases 2025
Chapter XLIX.
Arbitrations bbtore United States Ministers 2027
I. The Cravairola Boundary 2027
Subject of Controversy 2027
Arbitral Proceedings 2028
The Award 2028
Execution of the Award 2048
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XUI CONTENTS.
Page.
2. Caae of Cotesworth d& Powell 2060
ProYisioDB for Arbitration 2050
Origin of the Claim 2050
Constitution of the Commisaion 2051
Award 2050
8. Chilean-Peravian AccoantB 2085
4. BritUh-Honduranean Mixed Commiflsion 2106
5. The Dnndonald Claim 2107
Ohapteb L.
Genb&al Abbitratiok 2109
Case of Cermti 2117
Behring Sea Damage Commission 2123
Chapter U.
Procbdurb 2l38
1. Rules of Conmiissions.
Early Commissions 1 2133
Commission under the Act of March 3,1849 2133
London Commission of 1853 2137
New Granadian Conmiission 2138
Costa Rican Commission 2141
Mexican Commission of 1868 2144
Peruvian Commission of 1868 2167
Spanish Commission of 1871 2169
Orders as to Translations 2171
The Taking of Testimony 2171
Submission of Matters to the Umpire 2173
Taking of Testimony in Cuba 2174
Rules as to Additional Articles of 1881 2181
Special Orders 2182
Special Orders as to the Snbcommission 2182
Special Orders as to Printing and Translations 2183
Decisions on Questions of Procedure 2184
Finality of Umpire's Decisions 2184
Reopening of Arbitrator's Decision 2187
Umpire's Functions 2188
Question as to the Adyocates Appearing before the Umpire 2190
Identity of Cases , 2193
Admission of New Evidence 2200
American-British Commission of 1871 2201
French and American Claims Commission 2211
The y eneznelan Conmussion, Convention of 1885 2226
Chilean Commission, Convention of 1892 2231
Paraguayan Commission, Convention of 1859 2235
The Hudson's Bay Commission 2236
Venezuelan Commission, Convention of 1891 2238
2. Authority to Present Claims.
Anthority of Administrators 2239
Anthority of a Public Administrator: Case of Wiltz 2218
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CONTENTS. XLUI
'^2rAiifhorit7 to Preeent Claims — Continned. Pftge.
Rightof an Administratrix: Caseof Mrs. Willett 2254
Bight of an Executor 2258
3. Eyidence.
Question as to New Evidence before the Umpire 2259
Lack of Evidence in Support of Claim 2261
Ex parte Proofs; Murphy's Case 2262
Mr. Goode's Dissenting Opinion 2272
Ex parte Proofs: Thomdike's Case • 2274
Ohapteb LII.
PowsR OF Abbitratobs to Dstssmins Questions as to thbir
owx JuBifiDicnoN 2277
Ohapteb LIIL
Intxrvention :
1. The Right to Intenrene 2313
2. Nationality of the Interest Involved 2322
3. Questions of Allegiance and Protection under the Acts for the
Distrihution of the Geneva Award 2349
4. Assigrnment of Claims 2381
5. Change in Claimant's Nationality 2401
. 6. Power to Settle Claims 2419
Chapter LIV.
Nationautt :
1. Citizenship by Birth 2449
2. Citizenship by Naturalization 2465
3. Citizenship of Married Women 2483
4. Citizenship of Children 2506
5. Citizenship by Annexation 2509
6. Double Allegiance 2518
7. Proof of Citizenship 2531
8. Declaration of Intention 2549
9. Abandonment or Forfeiture of Citizenship 2560
10. Impeachm«nt of Naturalization 2583
Chapter LV.
DOMIOH. 2657
Chapter LVL
RERUirCIATIOir OR FORFBTTURB OF THE RiGHT TO NATIONAL PRO-
tboikh:
1. Acceptance of a Privateering Commission 2729
2. Contract for Biilitary Service 2752
3. Engaging in an Unlawful Expedition 2758
4. GiTing Aid and Comfort to the Enemy 2779
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XLIV CONTENTS.
Renukgiatiok or Forfeiture op the Right to National Pro-
TBCTiON^Continued.
5. Trading with the Enemy 2800
6. Acceptance of an Office or Agency 2819
7. Taking Part in Politics 2823
8. Engaging in the Slave Trade 2824
9. Question of Belligerent Habitoncy 2825
Ohapteb LVII.
Acts op Authorities:
1. Who may be Considered as "Authorities" 2859
2. Persons Engaged in Insurrection or Revolution 2972
3. Acts of Soldiers 2992
4. Unlawfid Killing by Soldiers 9002
5. Acts of Civil Authorities 3008
6. Mobs 3027
7. Duty of Protection 3031
8. Miscellaneous Cases 3043
Ohapter LVII I.
Denial op Justice:
1. Cases under Article VII. of the Jay Treaty 3073
2. Right to Legal Process 3119
3. Pursuit of Judicial Remedies 3126
4. International Effect of Judicial Sentences 3160
Ohapteb LIX.
Arrest, Imprisonment, and Detention:
1. By Civil Authority 3235
2. By Military Authority 3265
Chapter LX.
Expuubion 8333
Chapter LXL
Revenue Cases 3361
Chapter LXIL
Forced Loans 3409
CHAPTER LXIII.
Contract Claims:
1. Cases under the Q^ ^tion between the United States and
Mexico of April. /^>^^g 3425
2. Conamiaaion ^Dd^j. .^> lif^ ^ of March 3, 1849 3429
3. Convention bet^ ^^ A^ \)n\ted States and Great Britain of
^^^^^^ 8, i^^^tl f'^ 3458
^/'
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CONTENTS. XLV
Fftge.
Contract Claims — Continaed.
4. Conyention between the United States and Pern of January 12,
1863 3460
5. Convention between tbe United States and Mexico of Jaly 4,1868. 3462
6. Article XIII. of tbe Treaty of Washington of May 8, 1871 3484
7. Convention between the United States and France of Jannary
15,1880 2486
8. Convention between the United States and Veneznela of Decem-
ber 5, 1885 3491
9. Convention between the United States and Chile of Angnst 7,
1892 3569
Ohapteb LXIV.
Bond Cases. I. 3591
Chapter LXV.
Wab Claims:
1. Commencement of War 8665
2. Destmctiou of Property by Military Operations 3666
3. Appropriation of Property 3714
4. Captured and Abandoned Property 3745
5. Confiscation Acts 3750
6. Embargoes of Property in Caba under the Decrees of 1869 3754
7. Miscellaneous Cases 3783
8. Conclusion ofPeace 3793
Ohapteb LXVI.
Pbizb Cases:
1. Probable Cause ...*. 3815
2. Contraband 8843
3. Blockade 3885
4. Claims for Damages for Alleged Unlawful Warning Off 3923
6. Doctrine of Continuous Voyage 3928
6. Capture in Neutral Waters 3935
7. Sale of Belligerent Ship in Neutral Port 3957
8. Miscellaneous Cases 3958
Ohaptbb LXVII.
Nbutralitt:
1. Cases under Article VII. of the Jay Treaty 3967
2. Cases under the Treaty between the United States and Mexico
of July 4, 1868 4027
3. Cases under Article XII. of the Treaty of Washington of May
8,1871 4042
Ohapteb LXVIII.
Nbittbalitt: The Geneva Abbitration:
1. Due Diligence 4057
2. Duty to Detain an Offending Cruiser when it Returns to the Neu-
tral Jurisdiction, and the Effect of a Commission on such
Cmiser 4082
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XLVI CONTENTS.
Pa<:e.
Neutrality: The Geneva Arbitration— Continoed.
3. Supplies of Coal 4097
4. International Law, and not Municipal Law, the Measure of Neu-
tral Duty 4101
6* English Feeling toward the United States, and Toleration of
Confederate Operations in England 4109
6. Damages 4112
7. Deoisions aa to Particular Cruisers 4120
Chapter LXIX.
Limitation and Prescription , 4179
Chapter LXX.
Measure of Damages *. 4206
Chapter LXXL
Interest 4313
Chapter LXXn.
Miscellaneous Cases 4329
Appendix I.
Domestic Commissions for the Ai>ju8tment of International
Claims 4397
chapter a.
French Indemnity: Convention of April 30, 1803 4399
Treaties of 1778 4399
Treatment of Prizes 4399
Foreign Privateers 4399
The Alliance 4399
Consular Convention of 1788 4400
Powers of Consuls 4400
Commercial Discontents 4400
Gouvemeur Morris 4401
Proffer of Commercial Negotiation 4402
Revolution of August, 1792 4403
War between France and Great Britain 4403
Appointment of Genet 4404
Genet's Departure for the United States 4404
Question as to Genet's Reception 4406
Proclamation of Neutrality 4406
Coarse of Genet on his Arrival 4406
France's Position as to Treaties of 1778 4406
The Territorial Guaranty 4407
Genet's Official Reception 4409
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CONTENTS. XLVII
Pag«.
ControTeny with Genet 4409
Gfenete Keoidl 4410
Geoet*8 Defense 4410
Coutinued Violations of Soyereignty 4411
Decree of May 9, 1793 4412
Decreeof July 27, 1793 4413
Morris's Recall 4414
Appointment of Monroe 4414
Skipwith'8 Report 4414
Decree of Jannary 4, ^95 4414
France's Complaints 4415
Decreeof July 2, 1796 4419
Decrees of Special Agents 4419
Refasal to Receiye Pinckney 4420
Decreeof March 2, 1797 4421
Mission of Pinckney, Marshall, and Gksrry 4422
The X.Y.Z. Episode 4423
Decree of Janaary 17,1798 4425
Diplomatic Rnptnre 4425
Measures of Hostility 4426
Talleyrand's Overtures 4427
Mission of Ellsworth, Dayie, and Murray 4427
Instructions 4427
Bonaparte as First Consul 4429
Negotiations 4429
Difference as to the Treaties of 1778 4429
French Propositions 4430
Treaties and IndemnitieB Postponed 4431
Convention of September 30, 1800: Article II 4431
Debts and Captured Property 4431
Other Stipulations 4431
Expnnction of Article II 4431
Execution of the Convention 4432
Nouezecution by France 4432
Retrocession of Louisiana to France 4433
Claims and New Orleans 4433
Louisiana Cession 4434
Claims Commission 4434
Appointment of Commissioners and Agent 4436
Difflcoltiesof Commissioners 4436
The "Conjectural Note" 4436
Examination of Documents 4436
Classification of Claims : 4436
Rales of Procedure 4437
Erroneous Classifications 4438
Difficulties in Examining Claims 4439
Commissioners' Controversy with Livingston 4439
DefectiTcness of the Convention 4440
Omitted Claims 4441
Rules of Decision 4442
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XLVIII CONTENTS.
Page.
Forma of Oertiflcates 4442
Right of Final Deoiaion 4444
Commissioners' Adjoarnment 4444
Resaltsof Conyention 4445
CHAPTER B.
French Indemnity : Convention with France op July 4, 1881 . . 4447
Renewal of Belligerent Depredations 4447
British Blockades 4447
The Berlin Decree i 4448
Application of the Decree 4449
The Antwerp Cases 4450
Orders in Coancil 4450
Milan Decree 4451
Answer to American Remonstrance 4451
Embargo of 1807 4451
TheBayonne Decree 4452
Noninteroonrse Act of March 1, 1809 4452
Reprisals on American Property 4452
Rambouillet Decree 4453
Repeal of Noninterconrse Act 4454
Cadore's Letter of August 5, 1810 4454
Fancied Revocation of French Decrees 4454
Noninterconrse with Great Britain 4454
An Erroneous Assamption 4455
Gallatin's Negotiations 4456
French Connter Claims 4467
Article VII of the Louisiana Treaty 4457
Claim of Beaumarchais 4458
Instructions of Mr. Rives 4458
Mr. Rives's Negotiations 4459
Conclusion of a Convention 4400
Provision for a Commission 4461
Appointment of Commissioners 4461
Rules of Procedure 4462
Papers Relating to Spanish Claims 4462
Worlt of the Commission 4463
Delay in Execution of Convention 4463
Jackson's Recommendation of Reprisals 4464
Action of the Senate 4464
Action of the House 4466
Action in France ^ 4466
Message of December 7 [g35 4466
DiplomatioBuptare ^^ ' , 4467
Britisb Afedja^/on...^*'**' "] 4467
PaymentoflDdemnili''-^^'''. 4468
AnalyBis of jiward8 *.^^' " 4468
^'^^^e'aNotas.,/^^^^ . ^- 4471
^^^^^^^Chr^teto;^./^ . ^'\ 4472
• V
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CONTENTS. XLIX
Page.
Meuiiiigof Toim ''Property" 4472
Agency of Franee 4473
Case of Holland 4473
Manlcipal Begolations 4476
The St. Domingo Casee 4476
QQeetionsof International Law 4477
Berlin Decree 4479
Milan Decree and Secaptnres 4479
Character of Iignriee Indemnified 4480
Claims Benonnced 4481
Proofs of Ownership 4481
Case of Insurers 4481
Measnre of Damages 4482
CHAPTER C.
INDXMNITT UNDER THB FLORIDA TSBATT 4487
War between Spain and Great Britain 4487
Pickering's Beport on Depredations 4487
Madison's Report 4487
Pinckney's Instmotions 4488
Spanish Blockades 4488
Sabjeote to be Arbitrated 4489
Pinckney's First Proposal 4489
Objections of Spain 4489
Conclusion of aConTention 4490
Pinckney's Explanationti 4490
Postponement of Action by the Senate 4491
Further Negotiations 4491
Final Action of the Senate 4492
Exchange of Ratifications Suspended 4492
Saspension of Diplomatic Relations 4493
Decree of February 19, 1807 4493
Decree of January 3, 1808 4494
Revolt of Spanish Colonies in America 4494
General Morillo's Decrees 4494
Proposals of John Quincy Adams 4495
De Onis's Counter Proposal 4495
Subsequent Negotiations 4496
The Florida Treaty 4496
Ratification of the Treaty 4497
Mutual Renunciations of Claims 4498
Assumption of Claims by United States 4499
Legislation for Executing the Treaty 4600
Appointment of Commissioners 4500
Organization of Commission 4501
Rales of Procedure 4501
Completion of the Board's Labors 4502
TheM^ade Claim 450~^
Question as to Contract Claims i"^^^
6627 IV • ^^
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L CONTENTS.
Pageu
Bejeotion of Mr. Meade's Liquidated Demand 4505
Failure of the Claim 4605
Awards Inconclusive as to Private Interests 4606
Finality of Board's Action 4606
Custody of the Board's Records 4607
Commissioners' Final Report 4507
CHAPTER D.
Eabt Aia> West Florida Claims 4519
Question as to West Florida 4519
Provision for Occupying East Florida 4519
Instructions to Mathews and McKee 4520
Action of Mathews 4520
Revocation of Mathews's Powers 4521
Injuries to Inhabitants of East Florida 4521
Invasion of West Florida in 1814 4522
West Florida and the Seminole War 4523
Satisfaction Promised by the United States 4524
Legislation by Congress 4524
Claims Prior to 1818 Rejected by the Treasury 4525
Decisions on Various Claims 4525
Appeal of Claimants to Congress 4526
Adverse Reports 4526
Mr. Everett's Favorable Report 4527
Mr. Archer's Reports 4528
Provision for KaHt Florida Claims 4528
Adjudication of Claims 4528
Action of the Treasury Department 4529
Disallowance of Interest by the Treasury 4529
Contention of Claimants 45S0
Amoant of Interest Disallowed 45£0
Later Discussions of Interest Question 4530
CHAFfER E.
The Van Ness Convention 4533
New Claims against Spain 4533
Decrees of Blockade 4633
Position of Spain 4534
Anglo-Spanish Conventions 4534
Presentation of American Claims 4534
Mission of Mr. Van Ness 4535
Spanish Contentions 4535
Offer of Basis of Negotiation 4535
Appointment of Mr. Zea 4536
Note of Mr. Van Ness 4536
Discussion of Terms of Settlement 4537
Acceptance of the Spanish Offer 4537
^S^nature of the Convention 4538
N*^ution of the Convention 4538
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CONTENTS. LI
Pag*.
Appointment of Commiflsioner 4538
Boles of Procednie 4539
Seaaione of the Board 4540
Extension of Time 4540
Principlesof Decision 4541
Final Beport 4542
Bejeoted Claims 4546
Payments on the Awards 4547
CHAPTER F.
The Daihsh Imbbmmitt: Cowkntiok of March 28, 1830 4549
Beserration of Claims 4549
Origin of the Claims 4549
Privateering Instmctions of 1810... 4550
Bemonstrances 4550
Miasionof Mr. Enring 4550
Sabseqnent Negotiations 4552
Mr. Wbeaton's Mission 4653
Mr. Wheaton's Argument 4555
Conclnsion of a Convention 4563
Terms of the Convention 4563
Act of Congress 4564
Organization of Commission 4565
Boles 4565
Notice of Organization 4566
Second Session 4566
Third and Fourth Sessions 4567
Fifth and Sixth Sessions 4567
Seventh Session 4568
Boles of Decision 4568
FinalBeport 4569
The Bergen Prizes 4572
CHAPTER G.
Thb Neapolitan Indebinity: Convention of October 14, 1832.. 4575
Invitation to American Merchants 4575
Confiscations 4575
Unjnstifiahle Proceedings 4576
Pinkney's Negotiations 4576
The Neapolitan Argument 4577
Appleton's Negotiations 4578
Benewal of Negotiations 4578
Note of the Prince of Cassaro 4578
Argument of Mr. Nelson 4579
Conclnsion of a Convention 4581
Terms of SetUement 4581
Modification as to Payment 4581
Establishment of aCommission 4581
Organization of the Commission 4582
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LIT CONTENTS.
Rules 4fi82
Seoond Session 4683
Orders of December 12. 1838 4584
Extension of Commission 4584
Foorth and Fifth Sessions 4585
Sixth Session 4585
Principles of Decisions 4585
Pilchard Cases 4686
Final Report 4587
CHAPTER H.
The Pkrdvian Indemnity: Convention between the United
States and Peru op March 17, 1841 4581
Claims Included 4591
Negotiation of the Convention 4581
Delays in the Exchange of Ratifications 4592
Distribution of the Fund 4592
Disallowance of Interest 4594
Case of the'* Esther" 4595
Case of the Ship ** General Brown" 4598
Case of the Brig "Elizabeth Ann" 4800
Case of the Ship "Catharine" 4801
The Schooner " Henry " and Other Cases 4601
Case of the "Macedonian" 4602
Acts of the Spsnish Authorities 4608
List of Awards 4603
CHAPTER I.
The Brazilian iNDEBiNiTY : Convention op January 24, 1849 4609
Terms of the Convention 4609
Legislation 4609
Organization of the Commission 4609
Extensions of the Commission 4610
Case of the Schooner "John S. Bryan" 4613
Casoof the "Aspasia" 4614
Caseof the Schooner "Hope" 4614
Case of the Brig "Toucan" 4615
Caseof the Ship" Tarquin" 4617
Summary of Awards 1 4619
CHAPTER J.
The Chinese Indbmnitv : Convention between the United
States and China of November S, 1858 4627
Origin of the Fund 4627
Distribution of the Fund 4628
Claims Allowed 4628
Interest 4629
Caseof the" Caldera" 4629
Claim of Nott & Co 4636
Betam of the Remainder of the Fund 4638
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CONTENTS. Lin
CHAPTER K.
Thx "Ai^AlBama" Claims Courts:
1. The Fint Court
Constitation of the Court 4839
Freeentation and Diapoeition of Clmims 4640
Powers of the Court 4640
Jurisdiction of the Court 4640
Allowance of Interest 4641
Counsel Fees 4641
Certification and Payment of Judgments 4641
Salaries of Officials 4642
Personnel of the Court 4642
Organization and Rules 4642
Delay in Presentation of Claims 4644
Rules for Taking Testimony 4645
Extension of Time 4646
Further Extensions of Time 4647
Summary of the Court's Work 4648
Serrices of Counsel 4648
Testimony 4648
Mode of Trial 4649
The "Trinity Masters" 4649
Serrices of the Clerk 4649
Opinions of the Court 4649
Powers of the Judges 4649
Claimants, Who Were 4660
National Losses 4651
Ii^uries tothePerson 4652
Claims of Insurers 4662
Meaning of "True Allegiance" 4652
Who were Entitled to Protection 4653
Losses "Directly Resulting" 4653
Right of Assignee to Recover 4654
Action of Court on Counsel Fees 4654
Filing of Claims 4655
Questions of Practice 4655
Verification of Claims 4656
Balance in the Treasury 4657
Contest oyer the Fund 4658
Contentions of Various Interests 4659
2. The Second Court
Actof June5, 1882 4669
Constitution of the New Court 4660
Jurisdiction of the Court 4660
Distinction in Payment of Judgments 4661
Judgments and Interest 4661
Personnel of the Court 4661
Organization of the Court : Additional Legislation 4662
Expenses of the Court 4662
Work of the Court 4664
Payment of Judgments 4664
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LIV CONTENTS.
The ''Alabama" Claims Comtrs— Contmned. Page.
2. The SeooDd Court — Continued.
Bulesof Procedure 4665
Procedure as to War PremiuniB 4668
Practice as to Amendments 4670
Order of Business 4670
Meaning of Protection of United States 4672
What Constituted a "Confederate Cruiser'' 4673
Meaning of ''High Seas" 4677
Claims of Insurance Companies 4678
Losses "Directly Resulting" 4678
The Bankruptcy Question 4679
Nonhankrupt Assignments 4679
Verification of Claims 4680
Time of FUing Claims 4683
Case of Disbarment 4684
Appendix IL
Trkaties rblahno to Arbitrations to which thk Unttbd
States has bkrn a Party
Argentine Republic. (See Brazil and Paraguay.)
Brazil and the United States, March 14, 1870 4687
Brazil and the Argentine Republic, September 9, 1889 4688
Chile and the United States :
November 10, 1858 4689
August 7, 1892 4691
Colombia and the United States :
September 10, 1857 4694
February 10, 1864 4696
Colombia and Great Britain, December 14. 1872 4697
Colombia and the United States, August 17, 1874 4698
Colombia and Italy, August 18, 1894 4699
Costa Rica and the United States, July 2, 1860 4701
Costa Rica and Nicaragua, December 24, 1886 4704
Denmark and the United States, December 6, 1888 4710
Ecuador and the United States:
November 25, 1862 4711
February 28, 1893 4713
France and the United States:
January 16, 1880 4716
July 19,1882 4718
February 8, 1883 4719
Great Britain and the United States :
November 19, 1794 4720
Marchl5,1798 4725
January 8, 1802 4727
December 24, 1814 4728
October 20, 1818 4733
June 30, 1822 4734
November 13, 1826 4738
September 29, 1827 4740
February 8, 1853 4743
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CONTENTS. LV
Great Britain and the United State»--Con tinned. PAge.
Jnlyl7,1864 4746
Jnne5, 1854 4747
Jnly 1,1863 4749
May 8, 1871 4751
Jannary 18, 1873 4758
Febmary 29, 1892 4759
Aprill8, 1892 4763
Febrnary8, 1896 4764
Hayti and the United States:
May 28, 1884 4768
March20. 1885 4769
May 24, 1888 4770
Mexico and the United States :
Aprilll, 1839 4771
Jnly4,1868 4773
AppU19, 1871 4776
November 27, 1872 4777
November 20, 1874 4778
April 29, 1876 4779
Paraguay and the United States, Febraary 4, 1859 4781
Paragnay and the Argentine Republic, February 3, 1876 4783
Pern and the Uuited States:
December 20, 1862 4785
January 12, 1863 4786
December 4, 1868 4788
Portugal and the United States, February 26, 1851 4791
Portugal and Great Britain, Jannary 13, 1869 4793
Portugal, the United States, and Great Britain, June 13, 1891 4795
Spain and the United Btates :
October 27, 1796 4796
August 11,1802 4798
February 22, 1819 4799
February 11-12, 1871 4802
February 23, 1881 4804
May 6 and December 14, 1882 4806
June 2, 1883 4807
Venezuela and the United States :
April 25, 1866 4808
Decembers, 1886 4810
March 15, 1888 4815
October 5, 1888 4816
Jannary 19, 1892 4818
Appendix UI.
HisTOSiCAL Notes 4821
1. Arbitration Prior to the Nineteenth Century
Arbitration in the East and in Greece 4821
Arbitration under the Boman Empire 4821
Arbitration in the Middle Ages and in more recent times 4825
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LVI CONTENllg.
1. Arbitration Prior to the Nineteenth Centnry — Continued. Pa^
Additional Cases 4881
Qreat Britain and the Netherlands 4884
The Netherlands andPortngal 4849
2. Arbitrations of the Nineteenth Centnry
International commissions in relation to rivers 4861
Argentine Repnbllc and Chile 4854
Austria and other Powers: Right of property in the Duchy of
Bouillon 4855
Austria and other Powers : Cantons of Tessin and Uri 4856
Austria-Hungary and Chile 4856
Chile and Belgium 4856
Chileand Italy 4856
Chile and Sweden and Norway 4857
Chileand Switzerland 4857
China and Japan 4857
Colombia and Costa Rica 4857
Colombia, Ecuador, and Peru 4857
Colombia and Venezuela 4858
KhediyeofEgyptandM.de Lesseps 4862
Khedive of Egypt and Foreign Powers 4862
France and the Allied Powers (1814) 4862
Franceand Chile 4862
France, Chile, and Peru: Arbitration of claims on guano funds. 4863
France and Hayti 4864
France and Mexico 4865
France and the Netherlands 4866
France and the Netherlands: Award of the Emperor of Russia
as to the boundary between France and Dutch Guiana 4869
France and Nicaragua : Case of the "Phare'\. 4870
France and Spain : Questions of Prize 4873
France and Venezuela 4877
France and Venezuela: Award of the President of the Swiss
Confederation in the case of Fabiani 4878
Germany and Chile 4916
Great Britain and Brazil: Case of the ''Forte" 4925
Great Britain and Chile 4928
Great Britain and Chile, and Chile and Sweden and Norway . . . 4930
Great Britain and France 4986
Great Britain and France : British Mineral Oil Claims 4988
Great Britain and France 4989
Great Britain and France : The Newfoundland Fishery 4939
Great Britain and Germany: Arbitration as to the Island of
Lamu 4940
Great Britain and Hayti 4947
Great Britoin and Liberia 4948
Great Britain and Mexico 4948
Great Britain and the Netherlands : Case of the " Costa Rica
Packet" 4948
Great Britain and Nicaragua 4954
Great Britain and Nicaragua 4966
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CONTENTS. I4VII
2. Arbitration of the Nineteenth Century— Continued. Page.
Great Britain : Boundary of the Proyinoe of Ontario 4966
Qreat Britain and Peru 4967
Qreat Britain and Portugal 4979
Great Britain and Portugal 4984
Great Britain and Portugal 4985
Great Britain and the South African Republic 6015
Great Britain and Spain 5016
Great Britain and Spain 6017
Great Britain and Venezuela 5017
Haytiand San Domingo r--*- ^^^
Italy and Brazil 5018
Italy and Portugal 5021
Japan and Pern : Caae of the "Maria Lnz" 5034
The Netherlands and the Dominican Republic: Case of the
"Havana Packet" 5036
The Netherlands and Venezuela 5037
Peru and Bolivia 5041
Portugal and the Congo 5041
Two African Tribes 5041
3. Mediation
TheSeistan Boundary 6042
The Boundary between Greece and Turkey 5042
Fyi Land Claims 5043
The Caroline Islands 5043
TheLoochoo Question 5046
Spanish Peace Conference 5048
4. Plans for Permanent Arbitration
Rules proposed by the Institute of International Law 6058
Rules proposed at the Columbian Exhibition in 1893 6062
Resolution adopted by the Interparliamentary Conference at
Brussels in 1895, concerning the establishment of a Permanent
Court of International Arbitration 6064
Proposal of the New York State Bar Association 5066
Additional Notes : Bering Sea Damage Commission 5067
The Cheek Case 5068
The Costa Rica - Nicaraguan Boundary: (General Alexander's
Award 5074
Case of the "Havana Packet": Award 5080
A table of cases reported and of cases cited will be found at the end of
volume 5, preceding the general index.
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LIST OF ILLUSTRATIOIJrS.
Page.
Extract from Mitchell's Map of the British and French Dominions
in North America 1
Flan of the Bivers Scoodio and Magagaadavio, and of Passama-
qnoddy Bay 30
Map of the northern part of Maine and of the adjacent British
ProTinces 85
Extract from Hale's Map of New England 148
Graham's Map of the Northeastern boandary 149
£xtractfrom the Oswald Map 156
Map of Lake Superior, extracted from Mitchell's Map 180
Map of VanoouTer, 1798 196
Map of Washington Soond and approaches 219
Map of the Straits of San Juan de Fnca, showing the international
boundary 231
Map showing the relation of the United States to the British West
India colonies 581
Sketch of the British Coast, showing the relative positions of Liver-
]M>oly Beaumaris, Moelfra Bay, and Point Lynas 584
Facsimile of the certificate of deposit used in paying the Geneva
award 664
Facsimile of the bond in which the Geneva award tand was in-
Tested 666
Map of New Brunswick, Nova Scotia, Newfoundland, and Prince
Edward Island, showing fishing rights 703
Map of Bering Sea 755
Map showing the Island of Bulama and the contiguous shore 1916
Map of Southern Brazil, showing territory contested by the Argen-
tine Republic and Brazil, as well as that contested by the Argen-
tine Republic and Paraguay 1969
Map of the Courts, 1749 1978
Maps under articles YI. and YII. of the Treaty of Ghent:
L No. I. — Iroquois or St. Lawrence : Sheak, Barnhart, Corn-
wall, and Bug Islands, etc
2. No. II. — ^Iroquois or St. Lawrence : L'Isle au Longue Sault
Sup^rienre, etc
8. No. III. — Iroquois or St. Lawrence, 1817: L'Isle an Rapid
Flat, Nut Island, Goose-Neck Island, etc
4. No. rv. — ^Iroquois or St. Lawrence : Isle au Gallop, Isle Tons-
saint, etc
ux
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LX LIST OP ILLUSTRATIONS.
Maps nnder articles VI. and YII. of the Treaty of Qhent— Contiiined. Paga
5. No. y. — Iroquois or St. Lawrence, 1818: Township of Au-
gusta, etc
6. No. YL— Iroquois or St. Lawrence: Township Elizabeth-
town, Township of Hague, etc
7. No. VII.— Iroquois or St. Lawrence, 1818: Tar, Grenadier,
and Indian-Hut Islands, etc
8. No. YIII.— Iroquois or St. Lawrence, 1818: Wells' Island.. .
9. No. IX. — Iroquois or St. Lawrenoe, 1818: Grindstone I
10. No. X.-— Iroquois or St. Lawrence, 1818: Grand Isle, Howe
Island, etc
11. Lake Ontario
12. Ontario, 1819: IsleTonly or Amherst, Grand Island, Dnok
Islands, etc
13. No. I.— Niagara, 1819: Queenstown, Lewiston, Yonngstown,
Fort George, Lake Ontario
14. No. II. — ^Nlagara: Iris Island
15. The Second Section of the Survey of 1819: Grand Island,
etc
16. No. lY.— Niagara, 1819: Lake Erie, Bird, Squaw, Straw-
berry, and Grand Islands, etc
17. Lake Erie: Sandusky Bay, Long Point, etc
18. South West End of Lake Erie: Miami Bay, The Bass Islands,
Point Pele Island, etc
19. No. I.— Detroit, 1820: Grosse Isle, etc
20. No. II.— Detroit, 1820: Fighting I.
21. No. III.— Detroit, 1820: Hog Island, Isle a la Peche, Lake
St. Clair, etc
22. Lake St. Clair
23. River St. Claire (Double Sheet)
24. The Fifteenth Section; No. 1, Lake Huron: St. Joseph,
Drummond, Lesser Manitou, and Greater Manitou Islands.
25. St. Joseph, Drummond, and Little Manitou Islands, etc
26. No. 1.— Map of the River Salute Marie: Isles St. George,
St. Tammany, St. Joseph, etc
27. No. 2. Continuation of the Map of the River Salute Marie..
28. No. I.— St. Tammina and St. Joseph Islands, Muddy Lake..
29. No. II.— George or Sugar Island, St. Tammina Island, St.
Joseph Island
30. No. III. — George or Sugar Island, Lake George, etc
31. No. lY. — George or Sugar Island, Lake George, etc
32. No. Y.— River St. Marie, etc
33. No. YL— River St. Marie
34. No. YII.— Lake Superior, River St. Marie
35. No. YIII— Lake Superior, etc
36. No. IX.— River St. Louis, Lake Superior
37. No. X.— River St. Louis
38. No. XL— River St. Louis
39. No. XII.— Lake Yermillion
40. No. XIII.— Arrow Lake, Mountain Lake, Pigeon River, Lake
Superior, etc
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LIST OF ILLUSTRATIONS. LXI
MmpB under sriioles VI. and VII. of the Treaty of Ghent-^ontinaed. Page.
41. No. 14. — ^Moo-koo-man or Knife Lake, Cypreas Lake, Kaseiga-
nagah Lake, Red Ground or Gnn Lake, etc
42. Lake Kasieganagah
43. No. 15. — ^Neqnawkaan or Lac-la-Croix, Crooked Lake, Paa-
soo-me-nansak-a-kagan or Lao de Bois Blanc
44. Lao la Croix
45. No. 16. — Sand Point Lake, Crane Lake, Greater Vermillion
River, etc
46. No. XVU. -River Nameukan
47. No. 18. — Koocheche, Sakahagan or Rainy Lake, Wapees-
kartagar or Rainy Lake, Lao Travene, Lake Nemenkan,
etc
48. No. XIX. — ^Koocheche or Rainy Lake, Rainy River, etc
49. No. XX.— Rainy River
50. No. XXI. — Kooohecke or Rainy Lake
51. No. XXII.— Koooheche or Rainy Lake
62. No. XXm.— Kaminitik or Lake of the Woods
53. No. XXIV.— Par.Pe-Qnaw-Uugar-Sa.Ka.Ha.GaB or Lake of
the Woods
54. No. XXV.— Kaminitik or Lake of the Woods, the North-
western Point
55. No. XX VI.— Kaminitik or Lake of the Woods
56. No. 8. — ^Map of Isle Royale in Lake Superior, etc
57. No. 4. — Map of a part of eertain surveys along the water
eommunications northward of Lake Superior: Grand
Portage, Pigeon River, etc
58. No. 5.— Continuation of the map of water communications
northward of Lake Superior: Flint Lake, Lac a la Rose,
Arrow Lake, etc
59. No. 6.— Continuation of the map of water communications
northward of Lake Superior : Lake Saisaginega
60. No. 7. — Continuation of the map of water communications
northward of Lake Superior: Sturgeon Lake, etc
61. No. 8. — Continuation of the map of water communications
northward of Lake Superior: Lac a la Croix, etc
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TABLE OF CASES REPORTED,
Page.
Abbiatti V. yenesa«lft 2347
Abrego,Ca8eof 3808
AoosUy Foster V. Mexico 2463
Acottoy Foster V.Spain 2347
Adam V. IT. S 3086
Adama V. Mexioo 3066
Ada,the 8143
Adelao 8158
Adlamv.U.S 2652,3307
Ag]iea,the(twooftbi8]iame) 8150
Agnirre V. 17. S ....> 1307
Aigbnrth,tbe 3158
AixiA,the 2600
Ainaa V. Hezioo 2610
AlAbama,the 4144
Albion, the 420,3150,4388
Alert, the 3150.4287
AlezttDder^a Case 2588,2601,2604
Alexandra, the 586
Alleganean, the 1621,4832
Allen*aCaae 1630
Alsop'aCaae 1627
Alvareav. Mexico 1858,3426
Amador V. U. S 4028
Amatt.Mexloo 1351,1357
Amelia, the 417,8157
Amer. and Hex. S.S. Co. V.Mexico... 2038
Anahnacthe 3065
Ani^yav.U.S 3804,3805
Andara. attorney, 0. 17. S 3006
AnciTa V.Mexico 2453
AnderMm & Thompson v. Mexico 2317,
3470, 2482, 2402, 2725, 3785
Andrews V.Mexico 2760,3228
Angarica V.Spain 2621,8764
Anglo-Mexican Mint Co., Case of the. 425
Ann*, the 8160
Anne Sophia, the 3160
AnnO'Hara 8688
Ann, the 4846
Antoinette V. Mexico 8065
Arango V. Spain 2772,2777
Aroev.U.S 4028
Archer, the 4120
Archibald Gzacie, the 2545,2758
Arctic the 8160
Azgimant,fhe 8157
Paga
Argaa,the 418»4344
Ariel, the 8157,4208
Arizona Mining Co. V.France 3864
Arkwrightv.n.S 8747
Armendaris, Pedro, Heirs of, v. The
United Stotes,iro. 308 8728
Ashley V. Great Britain 4054
Ashtonv.U.S 8288
Aspasia,the 4614
Aspinwall V. Venesuela 8616
Aspinwall V.Mexico 8878
Atkinson v.U.S 8670
Atlantic & Hope Ins. Co. v. Ecuador. . 8821
Atwood'sCase 410
Atwoodv. Mexico 8248
Aubrey v.U.S 2611
Aagnsta,the 4846
Antrey V. Mexico 8678
B.
BagdadCases 4041
Bailey d^Leetham v.U.S 8781
BaiUiev.U.S 4306
Baker dt Co., Case of. 422
Baker V. Mexico 8668
Baldwin*s Case 8186
Baldwin's Tebnantepec Case 2850
Baldwin V.Mexico 2760,8285
Ballaid v.U.S 4670
Ballentine V. Mexico 2768
Bangs & Soatbmayd's Case 8666
Bank of Hartford V. Mexico 8478
Bank Shares, Case of the 8703
Banshee, the 8150
Barclay v.U.S 2721,8677
Bardin V. Mexico 8780
Barlow V. France 8486
Barnes V. Mexico 1358,82^.7
Bainey's Case 1630
Bamsleyv.U.S 8677
Baron de Castine, the 4308
Baron Benfew, Case of the 428,8408
Barrett v.U.S 8800
Barrington V. Mexioo 8674
Barrios V. Mexico 3685
Barron, Forbes & Co, v. U. S 8518, 2625
Barry v. u.S .•*•.•.....•.••..•......■ 8280
T.YTTT
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Lxnr
CASES REPORTED.
Page.
Barthnm V. Spain ^. 3270
Bartlett & Barge V. Mexico 3721
Bftxterv. Mexico 2934
BealeB, Nobles &. Garrison v. Yene-
saela 8348
Scale's Case 2669
Bebianv.TT.S 3316
Becker V. Mexico 1353
Beloher^s Case 2695
Belden'sCase 8308,3714,3808
Benjamin V. Mexico 2756
BenneU V.Mexico 8249,3688
Bensley's Cases 3016, 3017, 3018
Benson & Lasarte's Case 2390
Bercier & Laborde o. U. S 8706
Berg V.Mexico 2166,2720
Berronv. CS 3960
Bertberand V. Mexico 2485
Bertraodv.U.S 3705,3711
Betsey, tbe 2278,2291,2825,2838,
2847, 2854, 3160, 3161. 3180, 3207, 4205
Bettiker V. Venezuela 2348
Beyansv.IJ.S 4679
Bevittv.U.S 3288
Bienooort «. Mexico 2483,2818
Binneyv.U.S 3282
Biscoffv.U.S 4673
Bister V.Spain 2454.2565
Black and Stratton v. Mexico , 3138
Black v.U.S 424,3677
Blake V. Mexico 2756
Blese Mote, Case of 1185
Blobm V. Mexico 3247
Blnmenkron v. Mexico 1353, 2978, 3667
Blumbardt V.Mexico 3146
Bogy V.Mexico 2769
BoUe'sCase 3243
Booth v.U.S 3292,3677
Borden V. Chile 3281
Borron v.U.S 3680
Bosqne*8Case 3394
Bostock, Case of 3688
Bottom1ey*8 Case 425
Bouillotte's Case 2650
BoTvden v.U.S 8308
Boven V. Mexico 2482,3721
Bowie v.U.S 2486
Bowley A; Co. V.Costa Rica 3032
Boyd v.U.S 2465
Boyne,the 3923
Brach V.Mexico 3423,3726
Bradboiy et al. V. Mexico 3783
Bradbury's Case 422
Bradley, Flannagan & Clark v. Yen-
ezaela 3564
Brainard & Co., Case of 3417
Brain'sCase 3278
Braithwaite v.U.S 8737
Brand, Lonis, Case of 1625
Pagf».
Brand V.U.S 2487
Brannan V. Mexioo 2787
BradaU'sCase 3666
Breeze'sCase 8336
Brent's Case 3266
BrlIliaDt.the 8150
Brissot, Amelia de. v. Yenezuela. . 2949. 2071
Brito V.Spain 3252
Broadbent's Case 425
Brockway V. Mexico 2534
Bronner V. Mexioo 3134
Brookline,the 419
Brooks V. Mexioo 2871,8672
Brook v.U.S..^ 3738
Brown & Sharp v. U. S 3675,
3679,3680,3883
Bmgere v.U.S 3753
Bryant V. Mexico 3247
Buck and Spofford V. U. S 4272
BnenteUov.U.S 3669,8670
Bam*s Case 8844
Bum V.Mexico 2978,8140
Burr V.Mexico 2885
Butterfield Sl Bros., Case of 423, 8474
Buxton V. Mexioo 8014
Buzzi'sCase 2613
Byrne v.U.S 3677
C.
Cabases v.U.S 2543
Cabias V. Spain 8S53
Cadiz, Ann Eulogia Garcia, v. Yen*
ezuelA 4100
Cahill V.Spain 8066
Cairev.Mexico 2150
Cairns & Co. v.U.S 8670
Calder,the 4820
Calderwood,execatrix, v.U.S.... 2485,3685
Callaghan's Case 1274
Calmont & Co. v.U. S 3064
Campbell V. Gordon 2509
Campbell V. Mexioo 3721
Campbell V. Spain 2772,2777
Campbell V. U. S 2000
Camy v.U.S 8308
Canty v.U.S 3300
Carew v.U.S 8209
Carillo y O'Farrill V. Spain 2337
Carlock V. Mexioo 2006
Carmalt v.U.S 8157.3680
Carmody v.U. S 8287
Caroline Knight, the 417
Caroline V.Brazil 1342,
2052.2067.2082,8418
Carpiette V. Mexico 8725
Carson v.U.S 8167
Carteret's Case ....^ 427
Casanova v. Spain 2337. 2671, 8277, 8853
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CASES REPORTED.
LXV
Page.
CaaaidyiJ.TJ.S 2380,4672
GaateUinft V. n. S 2999
CMtel o. Yenezaela 3710
CKttro V. Mexico 281«
CaihariDa EUzabeth, the 4274
Catharine Angnsta, the 1185
Catharine, Case of the 4601
Cartheras v. Mexico 3134
Catlin V . Mexico 2756
Central Sc S. Am. Tol. Co. v. Chile 2938
Ceaenaetal.r.U.S 4029
Chaclwick V. U. S 4656
Champion, Case of the 2322, 3900
Chance, the 8189
Chapman V. Mexico 2769
Charlotte, the 418
Chaee, Franklin V. Mexico 3469
Chase, Heiena D. v. Mexico 2885
Chase's Case 3336,3340
Chavez v.U.S 2509
Chenery V. Mexico 3470
Chickamauga, the 4173
Chile V. Edwards et al 2940
China, Case of the 4602
Chopin v.U.S 2506
Chourrean v.V.S 1168, 3705, 3711
Christian's Case 3242
Cicero, the 419
Circassian, the 3911
City of Berne v. The Bank of England 3560
City of Zacaaltipan, Case of 3803
Clarence,the 4129
CUrk,Caseof.... 1651,2729
Clark V. Tenezaela 4394
Clarke'sCase -424
Clavel «. Mexico 3141
Clay V.Mexico 2872
Clearj-, Case of 3688
Cleopatra, the 3428
Cleworth «. U. S 3675
Clow's Case.. ^ 3657
Colby r.U.S 4288
Colev.Mexlco 2468,
3422, 3423, 3670, 3721, 3785
Collie r.U.8 3679,3680
Collier v. Mexico 3244
Columbian Bond Cases 8612
Commonwealth, the 4288
Compton V. Spain 3779
Confidence, the 422,3063
Conroe v. Mexico 8004
Constancia, the 2729
Constitution, the 3958
Cook's Case 419,2313,3735
Cooke's Case 2659
Cooper V. Mexico 4039
Cootey V. Mexico 2770
Cordillera Mining Co. v. Mexico . . 3721, 3785
Cdrdobs, Case of 3803
5627 V
Page.
Corporation of Be3niosa o. U. S 4041
Corwin v. Venezuela 3210, 3220
Cossack, Case of the 3043
Costanza v. Mexico 2482
Costa V. Mexico 3724
Cotesworth, Powell & Pryor Case of. 422
Cotton Goods, Case of the Duties on . 425
Couch V. Mexico 1354
Coulon r. U. S 1164
Couturon v. Mexico 1353
Cox V.Spain 22W
Coxv.U.S 3678
Craig tj. Mexico 2768
Cramer V. Mexico 3250
Crawford v.U.S 3286
Creighton et al. r. U. S 3158
Creole, the 417,2708,4376
Crook's Case 4151,4390
Crosby Sc Co., Case of 1651
Crothers v. Mexico 2977
Crowther t>. U. S 3304
Crutohett r. U. S 2728,3734,3735
Cubbertson V. Mexico 2997
Cnculla V. Mexico . 2800, 2815, 2873, 2881, 3477
Camming r.U.S 2976,3681
Curry v.Spain 3270
Cyrus, the 416
B.
Danel's Case 1387, 1398, 2729
Danford, Knowlton &, Co. v. Spain 3148
Daring, the 4379,4382
Dartmouth's Case 424
Dashing Wave, the 3935,3948
Dawson's Case 414,421
Deanv.U.S 3309
DeBazau t). Spain 2341
De Brissot's Case 2456
Defiance, the 8159
De Hammer v. Venezuela 2949, 2971
Do Leon t\ Mexico 2696
De Lespes v. Mexico 1357
Delgado v. Spain 2259, 2690, 3763
De Luna r. Spain 3276
Denisv.U.S 2512
Dennis v. Mexico 2997
Dennison v. Mexico 2766
Derbec r.U.S 3020
De Rijon V. Mexico 8348
Dering's Case 421
De Rojas r. Spain 2337,2341
De4l>ois's Case 3390
Deucntte r.U.S 2582
Deutz V. Mexico 3247
D.F. Keeling, the 3159
Dewhurst & Emerson v. Mexico 3628
De Witt r. Mexico 3466
Dey'sCase 3434
Diana, the 3073,3827,3832
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Google
LXVI
CASES REPORTED.
Page.
Dickens r. Mex ico 30:J7
Didier ». Chile 4329
Dlmond's Case 2386
Dinictor.the 418
Divine t>. Mexico 2981
Dixon ©.Mexico 3014
Dodf^e tJ. C h i le 300 1
Dolan V. Mexico 2767
Dolphin, the 3159
Domin^raez i'. Spain 2593, 3764
DonnellH v. Y enezuela 3545
Donoughhor. Mexico 3012
Dorris V. Mexico 3002
Donglaa,the 417
Dresch r. Mexico 3669
Drcssel f. Mexico 2938,3417
Dresr.U.S 3742
DriggH V. Yenezaela 2261, 3125
Druckenfeld.the 425
Du Boia t>. Chile 3712
Diiboia t>. r. S 3742
DuboatJ.U.S 1165,1171,3319
Dticoing's Case 3345,3409
Dunbar &, Belknap v. Mexico 2998
Duncan's Case 3426
Duuford's Case 424
Du Pon t, do Nemours & Co. v. Mexico . 3616
Dusenberg v. Mexico 2157
Dutrieux tJ. U. S 3702
E.
Eagle, the 3159
Eakinr.r. S 2819
Easton's Case 1629
East's Case 3339
Eayres V. Mexico 3043
Echo, the 3159
Eckford's Case 3429
Eclip8e,the 3397
Edwards V. Spain 3268
Egsart's Case 1652
Ehlor'sCase 2531,3409
Eigendorffr. Mexico 2507,2717,2974
Eldrodge's Case 3460
Eldridger.U.S 4653
Electric Spark, the 4290
Elizabeth Ann, the 4600
Elizabeth, the 4001
Elkins's Case 34:^0
Ellert v. Mexico 2756
Elliott t?. Mexico 2481,3721
Ellsworth r. U. S :{308
Elvira, the 419
Emerson v. Mexico 3474
Emily Banning, the * " , , 1356, 1356
Emma Henry, the '" _ 3159
Empress, the "••.'" r^g^
Eneaav.TJ.S *'*••,,'" _, 3232
Page,
Enterprise, the 410.4349
Espindola, Case of 3803
Essex, the 3901
Esther, the 459
Evans (Maurice) <fe Co., Case of 420
Evelina, the 419
Expulsion Cases 3333
Faoerr.U.S 3290
, Fair American, the 3369
Fame, the 3100
Fanny, the 2779,3150,3992
Felix, the 2800
j Fcreira, Case of 4522
' Ferert>. Mexico 2720
FerrI v.XJ.S 2241
I Fidelity, tlie 416
Finn v. Venezuela 2348
Fisher r.U.S 3158,4284
Fitch r. Mexico 3476
i Fleury t>. Mexico 1353,2156,2720
' Florida Bond Cases 415,3594
Florida, the 3159,4129
, Flying Fish, the 4602
I Focke V.Mexico 2720
Forbes & Parker's Case 2606
Forbesu. U. S 3680
Forestall's Case 2800
Forge et Flls i>. U. S." 2781
ForwoodD.U.S 3307
Foster V. Mexico 3349
Foster t>. Spain 2998
Foucher t>. U. S 2512
Foulke v. Spain 2334
Fox's Case 3336
Fox, the (1 Edwards, 314) 842
Frances and Eliza, the 4^
Frazier D.Mexico 2978
Frear r. France 1158.3488
Frelinghuysen v. Key (110 V. S., 63) . . 1339,
1800
Fretz V. Colombia 2560
Friendship, the 4024,4599
Friery t?. Mexico 4036
Fritot u. Spain 3271
Oflgnet V. Mexico 2462
Gahagan r. Mexico 3240
Galer.U.S 3299
Galveston Bay and Texas Land Com-
pany's Case 3434
Gauiet>. Mexico 2885
Gannett p. U.S 4295,4304
(lardiner Case 1255
GametttJ.r.S 4653
Garrison t>. Mexico 1356,3129
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N
CASES REPORTED.
LXVII
Page.
Garyv.U.S 2532
Gana V.Mexico 3038,3720
Ganav.TT. S 3717
Gaatulam V. r. S 2534,4028
Gatter i>. Mexico 2548,3267
General Browu. the 4598
General MoreloB, the 30l5
General Pike, the 4228
Geohegan r. U. S 4683
George, the 597,3957,4167
Gerard, Caae of 3948
GermanJa Co. V. Mexico 3785
Gesiena fieligonda, the 3957
Gibbes'sCase 1387,1388,1410.3243
Oibbs 0. Mexico 8347
GiddingB V. Mexico 4379
Gilea V. France 3703
Gillilanw.U.S 4242
Gilmore V. Costa Sica 2538
Gianer'sCase 3330
Glen&Co..Caaeof 424
Glen V.Mexico 3138
Glover «. IT. S 2398
Godfrey. Pattiaon & Co. ». U. S 422, 336
Goldbeck V. Mexico 2507
Gomez, Criado y, V. Spain 2624
Gonzalea V. U. S 2824,2885
Good Return, the 1387, 1398, 1572, 2729
Goodridge T. U. S 4670
Goodnun V. France 3964
Goach V. Mexico 2713
Gorin y Pinto V. Spain 2629,2635
Gowen & Copeland v. Venezaela 3354
Grace & Co. V. Chile 2781
Grace, Michael, Case of 3688
Grange, the 3968
Grannard*8 Caee 1652
Grant's Case 3747
Grapeahot, the 2777
Great Western S. 8. Co. v. U. S 421, 3365
Green's Case 424
Green r. Mexico 2756,3130,4345
Grenada Packet, the 4020
Greyhound, the 3159
Griffin V.Spain 3252
Griswold V. U. S 3434,4678
Gtosthwaite, the 425
Grosv. Mexico 2720,2771
Gaerrav. I7.S 4029
Guzman, Case of 3803
:h.
Haddonv.U.S 3679,3680,3682
Haggerty's Case 2661
Hale V.Mexico 1357,3722
HaUeyv.U.S 2241
Hall's Case 424
flallv.U.S 3083
Page.
Halpinv. Mexico 2885
Halstead V. Mexico 3243
Hammaken v. Mexico 1355. 3470
Hammer's Case 2456
Hammond V.Mexico 3241
Hannav.U.S 2982
Hannnm v. Mexico 3243
Hardy's Case 1651
Hargon'sCase 1267,1279.2327
Harmony 'h Case 3044
Harriett, the 3394
Harresi, the 4653
Haskins v, U. S 4303
Hatteras, the 4661
Haven et al. r. U. S 4287
Haycock v.F.S 3157
Hayden'sCase 2995
Hayes's CaMe 3456,3688
Heidsieckv. U.S .^18
Henderson V. r. S 3727
Henning v. Mexico 1353
Henry, the 4601
Henry Thompson, the 1251, 3382
Herald, the 424
Hennon. the 3425
Hermosa,the 419,4374
Hero, the 418
Hevner'sCase 1650
Hiawatha, the 3902
Hickman r. Mexico 3423
Hicks r. Mexico 3422,3721
Highlander, the 4272
Hilja, the 3923
HiU's Case 1655
Hill V.Mexico 3065
Hill V. U.S 3296
Hodgskin V. Chile 3571
Hoirord, James, Case of the Exe<-u-
torsof 414,421
Hollenbeck's Case 3716
Hollins Sc McBlair v. Venezuela 3545
Homan's Case 3409
Hope, the 4614
Horatio, the 302 1
Houghton's Case 4231.43^7
Howard v. Mexico 2462
Howland v. Mexico 3227
Hubbell V. Great Britain 3484
Habbell v. T. 8 4242, 4243, 4274, 4277
Hudson's Bay Company, Case of the. 420,
422, 423, 3458
Hughes's Case 2972
Hngo, Guardian of Hiwelotf, r. Mex-
ico 2717
Hunter's CaHC 3426
Huotr.U.S 1164,1179
Hurst V. Mexico 2707
Hylas,the 3395
Hynemanv.U.S 4292,4653
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Lxvni
CASES REPORTED.
I. Page.
Idler V. Venezuela 3491
Ignacior.U.S 4656
Importers' Case 2331
Industry, the 3045,3159
Irene,the 421
Irvin& Co.r.U.S 2987
Isaao McKini, the 2815
Isaac's Case 1652
Isabel,the 3159
Israel «. Mexico 3247
ItaU,the. 3067
Iturria v. Mexico 2824, 3464, 3468
J.
Jabez Snow, the 4272
Jackson Ins. Co. r. Mexico 4325
Jackson u.U.S 3301
Jacobs r.U.8 3080,3688
Jamaica, the 3983
James Maury, the 4228
James Mitchell, the 421
Jane, the 3119
Jansen v. Mexico 2902
Jardelr.U.S 3699
Jarnianv.n.8 3308
Jaroslowsky v. Mexico 2818, 3145
Jarrers, Case of 2324
Jarr V.Mexico 2707
J. C. Roker, the 3159
Jeanneaud V. n. S 3000,3711
Jeannotat v. Mexico 3673
Jemot D.Spain 3271
Jennings, Laughland & Co 3135, 3130
John A. Robb, the 417
John S. Bryan, the 4613
Johnson's Case 421,1656,3031
Johnson V. Mexico 2817
Johnson r. U.S 3726
Johustou, Adra. of Wallace, Case of.. 2800
Johnston v. Mexico 3673
John, the 416,3793
John W.,the 3159
Jonan v. Mexico 3251
Jones's Case 3018,3410,3560
Jones, the 416,3046
Jones V. Spain 3253
Joseph Albino, the 420
Joseph Cowperthwaite, the 418
Jubilee,the 419
Julia, the 3159
Julius and Edward, tlie 418
Jnli UH Caesar, the 2535, 3S99
J imtina, the 4303
K.
Kearney v. Mexico 3467, 3468
Kellar v. Mexico 3065
Kemer's Case 3343
Page.
Eemm v. Mexico 2997
Kennedy & King v. Mexico 3144, 3474
Kenworthy's Case 421
Kerford &. Jenkin v. U. S .... 423, 2700, 3785
Kern v. Mexico 2719
Kidder's Case 3343.3410
King, admr.,r. V. S 3150
King & Co. r. Spain 3148
Kinney'sCase 1626
Knackev. Mexico 2938
Knowles, Caae of 3748
Knowles «. U. S 3748
Knoxv. Mexico 2166
Koszta's Case 2708
Kuhnagel's Case 2547,2848
L..
Labaan, the 3791
La Constaucia, the 1387,1398
Lacoste v. Mexico 2661, 3347. 3722
LaCrioUa 3150
Lady Shaw Stewart, Case of the 421
Lafler's Case 3340
Lagnemene's Case 3027
Lake Erie Raid Cases 4054
Lake v.Mexico 2754
Lamar, Ri vas y, v. Spain 2780, 3780
Lambayeque Riots, Claims growing
outofthe 1652,1653,1656
Landreau Claim 3571
Lane et al., assignees of the Atlantic
Mutual Ins. Co., c. I'.S 3735,4678
Lanfrancor. Mexico 2997
Laplace, Cose of 8232
LargomarMino, Case of. 2602
Latham r. Mexico 1357
Lauer r. Mexico 3247
Laurent, the Messrs., Case of 422,
2071,2723,2725
Laurie&Co.e.l'.S 2987
Lavell.Caseof 3688
Lavigne r. Spain 2454,2565
Lawrence.the 419,2424
Lawrence r. Mexico 2885
LobretP.U.S 2488.2573
Lee'sCase 3347
Leggett's Case 1276
Leithardt r. Mexico 3138
LeMoier.r.S 3232,3311
Lepoiut's Case 1652
Le Q iiesnc et al ., Case of 3948
Loviu Lank, the 416
Lewis v. U.S 2357,3019
Levy tJ. U.S 2508,2514,3285
Liano, Caseof 2601
Lida, the 3159
Lightr. Mexico 3484
Lillian, the 8169
Digitized by
Google
CASES REPORTED.
LXIX
Page. 1
LiMidi v. Mexico 1363,2483.2485.2589
Liuie, the 3159 |
LotMck dt Co., Case of 420 j
Lockr.U.S 37«7
Loehr ti. Venezuela 2348
Lohee V. Mexico 2885
Longoriar. U.S 2611,2997 I
LongstToth V. Mexico 3783
Lord Nelson, the 421,4390 '
Lord'rtCaae 3434
Lonisa, the 4325
Loaiaiana. the 3901
LoTell'aCaae 3310,3398,3410
Lovettv. Chile 2990
Lowe V. Spain 3269
Lucy, the 3159
Lynn V. Spain 2570,3353
M.
Mabel, the 3159
MacauUyr. U.S 3679
Macedonian, the 4002 '
Machadov. Spain 2567,3273
MaciasT.Sikain 2509.3773,3775
MacLeanev.U.S 4657 i
Madane.Spain 2638,3781 \
Hanasaee & Co. V. Mexico 3423,3462 '
Mantin V. Mexico 2540 '
Maria Dolores, the 417 ,
Marie Amelie Laplante, Case of 8232
Mari6 V.Mexico 3378
Marin V. U.S 2885
Markav. Mexico 3722
Marshall f. Mexico 3724 ,
Martin V. Mexico...'. 2167,2612
Martin «. U.S 3679
Mary Anne,the 424
Mary Lowell, the 2772
Mary Stewart, the 8169 '
Mary, the 4326
Maaaioott'a CaM 3374
Maaaon 9. France 3966
Maaoon V. Mexico 2542,3474
Matamoraa, the 3159
Matea 17. Mexico 2461 '
Mather & Glover v. Mexico 3231, 3232 I
Maxan r. Mexico 2485,3808 '
Maxwell V. U.S 3750
May, Administrator of Slocum, Case
of
MeAUen'a Case 2823
McCabev.U.S 3295 :
MeCalmont, GreaTes Sl Co., Case of 422. 2860 \
MeCaanv.U.S 3294 !
McClare et al. V. Great Britain 417 <
McCready v. Mexico 25;k], 2771 I
McCnrdy e. Mexico 2.00 |
McDonald V. U.S 3680,3681,3682,368:}
MoDoweU4(Ha]Uday,CMeof 3948 1
Page.
McElhoae V. U. S 8747
McGawv.Galbraith 2708
McGlinchy's Case 420
MoGrady 4l Wilson V. Mexico 2961
MoHugh'sCase 8278
McKonny e. Mexico 2881
McKeownv. C.S 8311
McLennan V. U. S 3158
McLeod's Caae 423,2419,3168
McManus v. Mexico. . . . 2720, 3411, 3416, 3422
McMillan V. U. S 3677
McStear.U.S 2380
McVeyv.U.S 8299
Meade'sCase 3430
Meansv.U.S 3706
Mechank;,the 3210,3221
Medea, the 1387,1398.1572,2729
Medina Sc Sons v. CosU Rica . 2315, 2483, 2583
Meleudes V. U. S 2546,4028
Mercury, the 3043
Menaase & Co. V. Mexico 3468
Mengr.U.S 3689,3711
Mexican Bond Case 3616
Michel V. Mexico 3670
MilatoTitch V. Mexico 2468
Miller Mackintosh's Case 421
MiUer'sCase 3336
Milhf r V. Mexico 13.57, 2706. 2974. 3417
Mills V.Mexico 3033
Miluerv.U.S .' 3299
Milo.the 4228
Mlnnie,the 8168
Mitchell V. Mexico 4227
Moke V.Mexico 2819,3411,3417
Molifere V.Spain 3033,3263
Monill V. Mexico, No. 891 34<38
Monmouth, the 3923
MontanoCase 1630,1649
Mont^o V. Spain 2646, o277
Montgomery v. Spain 3272
Montgomery v. U. S 4657
Montjoy's Case 1052
Mora Sc Arango v. Spaio 2336,
2397, 2642, 3782
Morrissey V. Mexico 2720
Morrison s Case 2325
Morton V. Mexico 2477
Moses's Case 3395
Moses V. Mexico 3127,3465,3468
MoBsman v. Mexico 4180
Mottev.C.S 2572
Moiutery v. Mexico 2467
M. S. Perry, alias Salvor, the .... 3158, 3159
Mugneraa V. U. S 4037,4041
Munroev.U.S 3300
Murphy's Case 424,3343
Murphy V.Chile 2762
Murray v. Mexico 2720
MurUv.U.S 82M
Digitized by V^OOQlC
LXX
CASES REPORTED.
N.
Page.
Nancy, the, (Stewart, administrator) . 2725,
8814
Naphegyi V. Mexico 2609
Napier, the 3J52
Nashville, the 5»7,il26
Naude i>. Mexico 1353
Nautilas Submarine Pearl Fishing
Company V. Mexico 1356,3251
Negretew.U.S 4029
Nelly, the 3159
Nelson, the 3735
Nelson r. Mexico 2532
Neptune, the 3076,
3083, 3093, 3843, 3856. 3875, 4216, 4224
Newton t>. Mexico 2997,3465,3469
Nichohjon r.U.S 3298
Nlcrosir.U.S 2581
Nile, the 4228
Nolan V. Mexico. . . 3147, 3302, 3423. 3484, 3721
Nora,the 4298
N. & S. American Construction Co. v.
Chile 2218
Norton v. Mexico 1355, 2160, 2163, 2467
NottdtCo. ». China 46:{6
Nougu6r.U.S 2578
Nastre, executor, V. Spain 2624
O.
O'Connor i>,U.S 2987
O'Dwyer i'. Venezuela 3668
O'Fhigherty i?. Mexico 8318
Oldfield & Co., Case of 423
Olivares, Ca8e of 3803
Olive Branch, the 419
Oliver's Case 3427
Omerr.U.S 1164,1179
O'Mulligan ». U. S 3295
Only Son, the 417,3404
Ophir.the 3045
Oribe tJ. the U. S 2997
Oriente, the 3229,3960
Ortega V. Spain 2502
Ort<?ga». U. S 4027
Osbom©. U.S 4657
Ostaee,the 3941
P.
Pacheco t?. Mexico 3467
Pacific Mills t?. U. S 4073
Pacific Mutual Ins. Co. r. U. S 4678
Paciflque.the 3159
Pagliari v. ACexioo 2468
Palacios V. Mexico 3423
Pallas, the 416,4:{45
Parker t>. Mexico 2996
Parrenin v.V.S 1164, 1179. 2572
Parrott's Ca«e 1269,
2381, 2384, 8009, 3385, 8410, 3429, 3808
Parrv.U.B 8302
Page.
Parsons V. Mexico 3044
Patmos,the 4370
Patterson's Case 424,2780
Patrick B. Hayes, Case of t he 3302
Patrickr.r.S 3287
Payan,Ca8eof 3232
Pearl.the 425
Peck V. Venezuela 2257
Pedro V.Spain 2568
Peeler r. Mexico 2938
Peopleof Cinecoev.U.S 3127
Perche's Case 2401
Perdreauville, R. M. A. do. Case of 8232
Perz V.Mexico 2718,3803
Perrodin.the 3232
Perry v. Mexico 4346
Peru, the 4«2
Peterhoff, the 3209,3838
Petit r.U.S 2579
Phelps V. Mexico 2756
PhiUIppi V. U. S 3706
Phillips V. Spain 8350
Phillips V. U. S 4299,4654
Phipps V.Mexico 3468
Piedras Negras, Case of the 3035
Pierce V. Mexico 8252
Piker. U.S 2300,4653
Pilchard Cases 4585
Pilgrim, Case of the 4025
Piatt & Duncan, Case of 421
Pollock, later Halley, administratrix,
v.U.S 2239
Poloney v. Mexico 2548.2720
Poly V.Spain 3764
Pond V.Mexico 3464,3489
Pope's Case 2979
l*orter v. Mexico 2998
Portuondo v. Mexico 3007
Portuondo v. Spain 2565
Potter V. Mexico 4226
Potts'sCase 424
Powers V. Spain 3274
Pradel v. Mexico 1355. 2543, 3141, 3423
Pnits'sCase 3886,2900
Pratt V. Mexico 3141
Pratt v.U.S 3280
Price V. Spain 2565
Pride, the 3150
Prieto V. Spain 2339
Prim V. Mt»xi.:o 2482
Prince Leopold, the 3158
Prosperity, the 425
Pnividcnoe, the 4027, 4594
Pngos r. Mexico 2548,2720
Putegnat's Heirs v. M exico 3718
R.
Kahming v.U.S 3282
Rampart, the 4603
Rappahannock, the 578
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CASES REPORTED.
LXXI
Page.
Bawdonv.Teneziiela 2949,2971
Reading v.U.S 3283
Bmdv.Chile 3711 '
Bebecca Adams, the 2758
Rebecca, the 3008
Kedgate v. U. S 3308
Reed & Frey V. Mexico 8132
Retribution, the 4161
Reville V. U. S 3805
Reynosa, Corporation of, V. U. S 1356
Rhino v.U.S 1350,4653
Ricardi'sCase 3028
Ricev.Mexico 3248
Richardson V. Mexico 3374
Richardii'a Case ai34
Richmond, the 4300
Rider's Case 420
Riggs V. Mexico 3668
Riley o. IT. S 3295
Roach v.U.S 4395
Rocket,the 419
Robert 9. Mexico 2477
Robeson V. U. S 4651
Robinet's Case 2337
Robinson Crasoe, the 4602
Robinson's Case 2389,3410
Robinson V. Mexico 3038,4029
Rochereanv. U.S 3739
Rodrignez v. Spain 2335,2336
Roehampton, the 4020
Rollers & Bros. v. Great Britain 410
Rogers's Case 424
Romain v. Mexico 2885
Roncari v.Mexico 2885
Roaario Mining Co. v. Mexico 301 5
Roaenwig's Case 1651,1652
Rose V.Mexico 2532,3417
Rongh Rice Cases 2703
Rowland's Case 3458
Rozasr. Spain 2646,3124
Rnden'sCase 1653
RogKles r.U.S 3157
Ruiz, Celso, Case of 3803
Roia, Jesus, Case of 3803
Rutyr.TJ.S 2410
Ryder's Case 2332,3423
RyeiBon V. U. S 3152
8. I
Saint Albans Said Cases 4042
Saint Croix, the 3301
SaUy,the 2304,
2305, 2306, 3101, 3108, 3817, 3820
Saltpeter Cases 4379
Salvor, the 3158
Samuel v. Mex ico 3868
Sanders & Sons 0. U. S :i2i)0
SandoTsl et al., Case of 2323
Page.
San Pedro V.Spain 3354
Santangelo's Case 2549,2551,3333
Sara Starr, the 3158
Barton's Case 3121
Sanlnler's Case 3715
Science, the 425,3935.3950
Schaben V. Mexico 2541,2696
Schatzell's Case 3836
Schleintng & Pentenreider v. Mexico. 2818
Schieffelin's Case 418
Schllnger v. Mexico 8571
Schreck v. Mexico 2720
Schreiber ». U. S 2350,4653
Schnltz V. Mexico 2885,2978
Scott's Case 3388
Scott, the 3890
Scott 9. Mexico 2817
Scott r. U.S 2528,3300
Scottv. Venezuela 4392
Seamew, the 418
Selkirk v. Mexico 3130
Selway r. Chile 2557,3002
Serrano, Dolores Carillo de, r. T. S . . . 3803
Sharpev.U.S 2548
Shattuckv. Mexico 3668
Sharer V. U.S 3286
Shaw's Case 423,425,3265
Shenandoab, the 4174
Sherman's Case 3278,4242
Shields V. Chile 2557
Shipowners' Society, Case of the 425
Shrigley tJ. Chile 3711
Shnmaker v. Mexico 3472
Siempre Viva Mining Co. e. Mexico . . 3784
Silva r. Mexico 2977
Simoni V. Spain 2346
SimoDSon v. Mexico 3724
Simpson & Pitman 3948
Simpson v. U. S 3299
SimH'sCose 3427
Sinaloa Silver-Mining Co. v. Mexico . . 3139
Sir Robert Peel, the 423
Sir William Peel, tlie 3935
Slocnm V. Mexico 4325
Slociim V. Mexico 2:582, 2385, 3160
Smallr.r.S 46.>0
Smith & Mason v. Mexico 3143
Smith, later Ferris, admin intrator, v.
U.S 2239. 3;no, 4656
Smith's Case 3:]:{9,3456
Smith V. Mexico 2720, 3146, 3374. 3720
Smythoe.U.S 3678
Snow & Burgess V. Mexico 4181
South American S. S. Co. v. U. S 3067
South Sea, the 4275
Speaknian v. Spain 2777
Silencer v. Mexico 2768
Si>erres ». Mexico 3038
Speyers v. Mexico 2539. 2868. 2870
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Google
LXXII CASES REPORTED.
Page.
Splendid, the 3384,3714,4285
Springbok, the «86,e»4.3928
Springer V. Mexico 3247
Sprotto, assignee of Hellman, v. Mex-
ico 2715
Paget
Tigris, the 418
Time, the 81S9
Tipton's Case 2545
Togno'sCase 3345
Tongnev.n.S 3875
Stackpole's Case 2456, Tooraen r. U. S 2488
Stackpole V. Venesuela 2949-2971 Topa£,the 2992
Staudish V. Mexico 3004, Torre & Laboardette v. Mexico 2816
Starr & Merrltt, Case of 3417 Torres r. The U. S 3803
Steele u. Mexico 2885 Toucan,the 4615
Steelman V. Mexico 3465; Tread w^ell & Co. v. Mexico 3468
Steinthal r. Mexico 2540 | Trevino r. U. S 4041
Sterling r. U. S 3686' Trevisco «. U. S 2581
SteUon V. Mexico 3131 I Trinidad and San Jos6 Silver lining
Stetsonr.U.S 4332 1 Co.i>.Mexico 8785
Stevenson's Case 3339 | Trinity Land Company's Case 8434
Stevens «. U. S 2360,3343,4679 , Triflerr. France 3906
Stewartv.U.S 2989 Tripler v. Mexico 2823,2997
StUlman's Case 3343.4346 Tristram Shandy, the 8159
Stone ». Mexico 3348 Trookr.U.S 3677
Storyr.Spain 3269 ; Trumball r. Chile 3255,3569
Stotlr.U.S 3286; Tubal Cain, the 3793
Stovinv.n.S..... 3283 ^ Turner & Benshaw v. Mexico ... . 3806,3808
Strother's Case 3336 Turner's Case 8126,8735
Stuckle u. Mexico 2935 | Tumerr.U.S 3684
Sturm V. Mexico 2756' Turpin v. Mexico 1354
SaranersCase 3434
Tuflcaloosa, the 587,4144
Twohig r. Mexico 3247
Tylerr.U.S 4673
Sumpter V. Mexico 3088,3267
Sumpter.the 595,4121 '
Sunbearo.tbe 3159 i
Susannah,the 4348 U.
Susan, the 3885 Uhde's Case 423,2691.2700,3401
Svift^the 3159 1 Ulrick's Case 3484
Swiftr.U.S 4679 Underhill's Case 3433
Symer.U.S 8290 ' Union Ins. Co. ». Mexico 8373
I Union Land Company's Case 8434
^' Union Mutual Ins. Co. U. S 4678
Tacony.the 4129 j Union,the 421
Talisman.the 4289 , U. S. v. Guinet, Wharton's State
Tallahassee, or Olnstee, the 4171, Tna]8,93 3961
Tarqain,the 4615 | Upton, jr., r.U.S 4289
Taunsr.U.S 8035 i
Taussig r. Mexico 3472 1 ^'
Taylor's Case 423,3232,4290 Vall^o r. Mexico 2534,3474
Tehuantepec Ship Canal Co. V. Mexico 3132 | Yanstavaren's Case 3388
Templar, the 4379 Vego r. Mexico 1355,3423
Tepeyac,the 3428' Venezuelan Bond Cases 2616
Terry & Angus's Case 2993 < Vergil's Case 4390
TexanSter,the 2360 | Vernon r. U. S 3304
Texas Bond Cases 414.3591 Vesseron v. Mexico 2975
Vidalr.U.S 2999
Vilhireslt.TheU.S .-... 2997
Thames and Mersey Insurance Com-
pany, (Limited), the, and the British
and Foreign Marine Insurance Com-
pany (Limited) et al., claimants for
cargo 3948
Thatcher V.Mexico 3251
Thompson's Case 2667, 3410, 3484
There de Lespes V. Mexico 3466
Thorndike V. ChUe 2274
Viszaya v. Mexico 2720
Volant, the 8935,3950
Vola8ia,the 416
W.
Walker Expedition Cases 4028
Walker t.U.S 2901
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CASES REPORTED.
LXXIIl
Page.
Walker V. Venezuela 3568
Wallace V. Mexico 275«,8475
Walleyes Ceae 3340
Walsh V.Mexico 2878
Wander, the 3159
Wardv.U.S 3731
Warner v.U.S 2582,2545,4028
Warren V. Mexico 3247
Waahington, the 418,4342
Wasp, the 4602
Wataon, executor of Meigga, v. Chile . 2258
Wataon'sCaae 421
Waydell^ Co. V.Spain 3255
Weheter, admr., V. Mexico 3004
Weilv.Mesico 1653,34213671
Welle, Fargo & Co. v. Chile 3744
WeUh& Allen v. Mexico 1356
Wendell'B Caae 1649
Wenkler 9. Mexico 1355.2482
Weeche V. Mexico 1353
Wethered's Caae 3339
Wheeler & Anderaon v. Mexico 3718
Whit<>v.U.S 3299
Whitfield V. Mexico 1354
Whiting V. Mexico 3348
Whitoee V. Mexico 3372
Whitney^ Caae 3434
Whittyv.TJ.S 2820
Whyte'MCaae 424
Widman V. Mexico 3467
Wildenhna a Caae 1797
Wilkinson V. Mexico 2720
Wilkinaon V. r. S 3736
Willet V. VenesaeU 2254, 3711, 3743
WOliam Lee, the 3406
William L.Richardaon, the 3962
Wniiama V. Mexico 2720
Williama v. U. S. . . 2349, 4650, 4651, 4652. 4653
Willjama V. Venezuela 4181
William Yeaton, the 2944
Wlllia V.Mexico 2482,3725
WiU o' the Wisp, the 3158
WiUnatnn et al. V. France 3864
Page.
Wi]aon,Joaeph,Cftaeof 420
Wilson's Case 3021
Wilson r. Chile 2553
Wilson V. Mexico 1354.3360
Wilson V. Spain 2454,3675
Wilts, public admluistrator, v. U. S . . . 2243
Winged Racer, the 4242
Wipperman V. Mexico 3039
Wulfe p. Mexico.. ..t 2539
Wood, Alfred T.. Caae of 421
Wood & Heyworth V. U. S 3680,3681
Woodhonae V. Mexico 2938
Woodruff v.Venesiiela 3564
Worth r.r.S 2350.4653
Wright's Case 3344
Wulflng V. Mexico 3117,3784
WnlfT V.Mexico 1353
Wyeth V.Spain 2777
Wyman V. Mexico 2978
X.
Ximenea V. Mexico 4040
Y.
York, the * 4378
Young Dickson, the 421
Young, James, Caae of 417
Young's Case 2752
Young, Smith &, Co. r. Spain . 3147. 3764, 4327
Young V. Mexico 1353. 2485, 2823, 3423
Yzquiedo V. Spain 2340
Z.
Zacharie'n Case 2885,3958
Zacualtiapan Casoii 3798
Zaldivar V. Mexico 2982
Zaldivar v. Spain 2630
Zander's Case :J432
Zenea V.Spain 2570,2626
Zerman'nCaHO 2758,.3:J48
Zazenean's Case 3336
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TABIiE OF CASES CITED.
A.
Page.
Abby, the, 5 Rob., 251 3916
Adams v. The Penn. Ins. Co., 1 Rawle,
97 4267
Adams o. Warren Ins. Co., 22 Pick.,
163,165 4263,4264
Adela, the. 6 Wall., 206 3159
Admiral, the, 3 Wall., 603, 614 3916
Albratchet v. Sassmann, 2 Yesey &
Beames, 823 2673,2723
Alexander, the, 1 Gall., 532 2807
Allen V. Mackay, 1 Spragne's Ded-
8ion8,219 4261,4275
Amedie, the, 1 Dod., 84, note 4361
Amelie, the, 6 Wall., 18 2362
American Ins. Co. v. Ihiiiham &.
Wads worth. 12 Wendell, 463 4304
Amiable ^Tancy, the, 3 Wheat., 546 . . 4245,
4246,4250,4256,4284
Amory v. Flyn, 10 Johns., 102 839
Amory v. McGregor, 15 Johns., 24 4253
Amy Warwick, 2 Sprague's Decisions,
123 3916
Anderson's Case, 9 Wall., 56 2361, 2367
Andromeda, the, 2 Wall., 481 ... . 2361, 2367
Ann, the, 1 Dod., 221 2673,2679
Anna, the, 5 C. Bob., 373 744, 1122, 3945
Anna Catharina, the, 6 C. Rob., 10 . . 2679,
3934, 4261, 4274, 4284
Anna Maria, the, 2 W^heat., 327
(1817) 4246,4256,4284
Anne Caroline, the, 2 Wall., 538 . . 4244, 4275
Anne, the. 3 Wheat., 435, 447 1097,
3945,3948
Ann Green, the, 1 Gall., 274 . 3307, 4262, 4264
Antelope, the, 10 Wheat., 66. 122 . . . 821. 3916
Apollon, the, 9 Wheat., 362 4247, 4256
Aqnila, the, 1 C. Rob., 37 4950
Argo, the, Spinks, 375 4277, 4282
Ariel the, 11 Moore's P. C. 119, 131 .. . 2363
Arrogante Barcelones, 7 Wheat., 496 . . 11 30
Arthur, the, IDods., 423, 425 3916
Arthur v. Homer, 96 IT. S., 137 1826
Ashbnmer v. Balchen. 7 N. Y., 262 4264
Attorney -General v. Lock wood, 9 M.
& W., 378,395 3634
Aiib^Tt ». Gray. 3 B. & S. (Q. B.), 163,
179 4382
B.
Page.
Balgorry, the, 2 Wall., 474 2361, 2367
Bailey V. Damon, 3 Gray, 92 4264
Balestrini v. Aubcrt, Journal du
Palais, an 1873, 37 1837
Baltica, the, 11 Moore's P. C. R., 141,
145 8958
Baltimore, the, 8 Wall., 877, 386 .. . 4247, 4261
Banton v. Wilson, 4 Texas, 400, 404 2404
Bartlett v. Budd, 1 Lowell, 223 4844
Beer Co. v, Massachusetts, 97 U. S.,
25 1721
Beers, etc., v. State of Arkansas, L. C.
P. Co., book 15, 991 3842
Bella Guidita, the, 1 C. Rob., 174 4036
Bello Corunnes, the, 6 Wheat., 152. .. . 2748
Bell V. Cunningham, 8 Peters, 69 4245
Bell V. Reid, 1 Manle &, Selw., 726. 2679, 2723
Bemon, the, 1 C. Rob., 102 2376
Bennet, 1 Dodson's Roport, 175, 179 .. . 2362
Bermuda, the, 3 WaU., 514, 557 2361,
3931, 3948
Betsy, 1 Mason's Rep., 354 841
Bischoff V. Wethered, 9 \Yall., 812 ... . 3511
Bixby V. Franklin Ins. Co., 8 Pick., 86. 2362
Blades v. Higgs, 12 C. B. N. S., 501, 512. 839
Blakey v. Dixon, 2 Bos. & Pull., 321 .. . 4277
Blanchard v. Fearing, 4 Allen, 118 2362
Board of Public Works v. Columbia
College et al., 17 Wall., 521 3511
Brodor's Lust, the, 5 Rob., 6, note 4382
Boswell's Lessee v. Otis, 9 How., 336. . 3307
Bremen Flugge, the, 4 C. Rob., 90 4261
Brimont, Gaston de, v. Penniman, 10
Blatchf.C.C.R.,436 2605
British Consul v. Ship Mermaid, Bee.,
69 3981
Brobst V. Brock, 10 Wall., 519 2361
Brogden v. Walker, 2 Harris Sc J.
(Md.),285 2362
Bourne v. Ashley, 1 Lowell, 27 4244
Brown v. Aspden, 14 How., 25 4655
Brown ©.United States, 8 Cranch. 1 10. 3834,
3682, 3747
Bruce, in re, 2 C. & J., 436 2700
Mnnicipal Permanent Investment
Building Society v. Kent, L. R., 9
App. Case^ 260, 278 3634
LXXV
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Google
LXXVI
CASES CITED.
Page.
Barton v. Barton, 1 Keyea, 350 2250
Bntler v. Goreley, 146 U. S., 803 4650 ,
4661, 4670
C.
Caldera Cases, 15 C. Cls. R., 546 2940
Caleb, the M. M., Case of, 10 BlatcL.
C.C.Itep.,467 4245
Calvin's Case, 7 Coke, 1, 5 2611, 3307
Campbell v. Gordon, 6 Cranch, 176 ... . 2639
Campbell v. Prescott, 15 Ves., 500 3414
Canada, the. 1 Lushington, 586. .. . 4275, 4277
Carleton v. Biokford, 13 Gray, 591 3511
Carrington v. Merchants' Ins. Co., 8
Peters, 495, 517 3952
Carson v. Marine Ins. Co., 2 Wash.*
C.C.,46a 4259
Carter v. B arris, 10 Smede & Mar.
(Miss.), 527 2362
Caswell V. Keith, 12 Gray, 351 2362
Catbarina, Elizabeth, the, 1 Acton,
309 4262,4284
Catlin V. Gladding, 4 Mason, 308 3307
Cavan v. Stewart, 1 Stark, 525 351 1
Cayaga, the, 14 Wall., 270 4275, 4282
Challier v. Ovel, Joamal dn Palais, an
1830,272 1836
Chapman v. Tnmer, 1 Call, 244 2361
Charming Betsy, the, 2 Cranch. 64 2402,
2573, 2722, 2724, 2726, 4246, 4256, 4284
Cheminant v. Pierson, 4 Tannt.. 357 .. . 3278
Cheriot v. Foussat, 3 Binney, 220, 252 . . 2940
Cheshire, the, 3 Wall., 231 2361
Chester, the,2 Dallas, 41 2679
Child V. Greenhill, 3 Croke, 533
Choctaw Nation v. U. S., 119 U. S., 1 . . . 1679
Church V. Hubbart, 2 Cranch, 187 744,
839, 841, 844, 3515
Circassian, the, 2 Wall., 135, 156 3299,
3911, 3916
City of Berne v. The Bank of England,
9 Ves., 347 1604.3553
Clark V. Washington Ins. Co., 100
Mass., 509 2362
Clarkson «. Phoenix Ins. Co., 9 John-
son, 1 4293
Coffin V. Newburyport Ins. Co., 9
Mass., 436 4259
Cohons r. Virginia, 6 Wheat., 264 3642
Collins V. Blantem, 2 Wilson (K. B.),
347
Colombian Government, The, v. Roth-
schild, 1 Sim., 94, 100 3560
Colonel Ledyard, the, 1 Spragne, 530. . 4244
Colombia, the, 1 Rob., 154, 156 3917
Comegys t;. Vasse, 1 Peters, 193, 210 .. . 1 15 J,
2405, 3916, 4506, 4679
Commercen, the, 2 Gallison, 261 4262
Commerceu, the, 1 Wheat., 382 4276
Page.
Commissioners v. Deverenx, 13 Sim.,
14,29 2700
Commonwealth v. A ves, 18 Picker-
ing's Reports, 193. 216 4366
, Commonwealth v. HoUoway, 2 Sergt.
I and Rawle, 305 . . * 4367
I Cooley, In re, 6 Dem. Sur.,77 4679
, Coolidge V. Inglee, 13 Mass., 26 2362
I Coolidge 1?. Kew York Fireman's Ins.
j Co.. 14 Johnson, 308 4304
^ Copenhagen, the, 1 C. Rob., 289, 291. . . 4261,
4276, 4283
! Corier Maritime, 1 C. Rob., 287 4239
I Countess de Conway's Case, 2 Knapp
I (P. C), 364 2694, 2723, 2726, 3673, 3680
Cress V. Harrison, 16 How., 164 3916
, Cronsdcn et al. v Leonard, 4 Cranoh,
] 434 3215,3217
Crow Dog, Case of, 109 U. S., 556 1«:6
D.
Dabney v. Green, 4 Hen. & Mnrof., 101
Davidson v. Sharpe, 0 Ired. L., 14 3511
Davies v. Powell, Willes, 46 832, 839
Dawson's Lessee v. Godfrey, 4 Cranch,
321 2516
Dawson v. Jay, 3 De G. M . & G., 764 . . . 267S
Deacon r. Oliver et al., 14 How., 610 .. . 8478
' Deanv.M*Ghie,4Bing.,45 2361
De Armas v. Mayor, 5 Miller (La.), 132 250
Del Col V. Arnold, 3 Dallas, 333 4256
DeLonguemere v. The Phtenix Ins.
I Co., 10 Johns., 127 4263
I De Lovio v. Boit, 2 Gallison, 398. 462. . 744
' De Mattos v. Gibson, 1 Johns, and
' Hemming's Reports, 79 2361, 2372
Der Mohr, 4 C. Rob., 314 4262,
4276,4283,4344
, Despardr.Walbridge,15N.Y.,374... 2362
Despatch, the, S wabey, 138, 220 4065
, Desvernine r. The Bark Matilda, 6
Blatchf. C. C, 520 3020
De Wiitz v. Hendricks, 9 Moore Com-
I roon Picas and Exchequer Chamber
I Reports, 586 2940,3480
I Diana.the,l Dod.,95 4361
Dickinson v. Kitchen, 8 El. & Bl., 789. 2351,
2372
, Diekelman's Case, 92 U. S., 520. .. . 1688. 8767
*Diligentia,the,id.,412 3946
Direct U. S. Cable Co. v. Anglo- Ameri-
can Tel. Co.. Law Reports, 2 App.
I Cas.,394 744,4837
I Doet.Acklara,2B.&C.,779.*. 2528
Dole V. New England ^lutnal Marine
Dm. Co., 2 Clifford, .194 4304
, Dorothy Foster, the. 6C. Robinson, 88. 4283
I Dos Hermanos, the, 2 Wlieat., 76, 77. . . 38C7
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Google
CASES CITED.
LXXVIl
Page.
Dowel! V. Cardwell, 4 Sawyer, 217, 228. 3623
Drammond'H Case, 2 Knapp's P. C,
- 295. . . . 2601 . 2604, 2673, 2680, 2723, 2725, 2726
Dana, the, 5 (Irish) Jnr. (N. S.), 284. . - 4065
Dasarv.Miirgatroyd,lWa8h.C.C.,13 4244
E.
Eagan's Case, 5 Blatch., C. C. K., 319,
320 3299
Earl <»f Abergavenny v. Abergavenny,
8C.B.,768 839
Ebers &. ErafEta v. United Ins. Co., 16
John8.,128 2158
Edye v. Robertaun , 1 12 TJ. S. , 580 . . . 1 841 , 1842
Egbert v. The Baltimore and Ohio R. R.
Co., 2 Benedict, 223, 225 ... . 4261, 4275, 4282
Eliza Ann. the, 1 Dodson, 244 3945
Eliza, the, 2 Gall., 4 2807
Elizabeth, the, 1 Acton, 10 3941
Elphinstone v. Bedreeohund, 1 Enapp,
316 4035
Ely V. MoGnire, 2 Ohio, 223 2362
Embden, the, 1 C. Rob., 13 2376
Emily, the, Olcott, Adm., 132 4066
Empress, the Bark, Blatch. P. C. , 659 . . 3916
Endraught, the, 1 O. Rob., 17 2376
Erwin «. U. S., 97 U. S., 392 4679
Essex, .he, 5 C. Rob., 309 4447
Esaon v. Tarbell. 9 Cushing, 407 .. . 2362, 2372
European, etc., Co. v. Royal Mail, etc.,
Co.. 4 Cay & Johnson, 676 8361
Exchange, the, v. McFaddon, 7 Cr.,
116 3643,4083,4087
F.
FavoritJK the, 18 Wall., 598 4275, 4282
Ferris v. Coover, 10 Cal., 589 2361
Fleming v. Page, 9 How., 603 3916, 4035
Filer v. United States, 9 Wall., 45 3735
FindUy V. The Ship William, 1 Peters
Adm.,12 3971
Fire Queen, the, 1 Gall., 267 2724
Fitzsimmona v. The Newport Ins. Co.,
4Cranch,185 3916
Foltina, the, 1 Dodson, 450, 451 4035
Forbes v. Aspinali, 13 East., 323 4267
Forbes v. Cochrane, 2 B. & C, 448 4369
Forbes v. Cowie, 1 Camp., 520 4267
Fortuna, the, 1 Dod., 81 2363,
2371, 2375, 4244, 4262, 4361
Foster v. KeUson, 2 Peters, 253. . . . 1841, 4631
Fowler v. Stoneum, 11 Tex., 478 2362
Fox V. HardinfiT^ 7 Cashing, 516 4264
Frances, the, 8 Cranch, 335 ; s. c. 1 Gall.
C. C.R., 614. 2158, 2679, 2722, 2724, 2725, 3307
Francis and Eliza, the, 8 Wheat. , 398 . . 4355
Franciska, the, 10 Moore's P. C. R.,
73,87 2989
Page.
Francisko, the, 10 Moore's P. C. R., 37. 3916
Frederick Molke, the, 1 C. Rob., 72. . , . 3916
Fuller V. Parrish, 3 Mich., 211 2362
G.
Galatea, the, 6 Benedict^ 259 4261
Gardoreo. Columbian Ina. Co., 7 Johns.,
514 3060
I Gardner v. Cazenove et al., I H. &. N.,
I 423 2361
I Gardner v. Village of Newburgh, 2
I Johns. Ch., 162, 165 3414
Gazelle, the, 2 W. Rob., 279 4239,
4244, 4261, 4275
' Gelston v. Hoyt, 13 Johns. (N. Y.), 561 2362,
2373
I Genesse's Case, 2 Knapp, 345 2685
George, the, 1 Wheat., 408 3767, 4066
I Gertmde, the, 3 Storj, 68 4355
Geyer v. Michel, 3 Dallas, 285 3981
I Gillingham v. Dempsey, 12 Serg. & R.,
, 183,188 4253
j Gill V. Oliver's Executors, 11 How.,
' 529 2750,3478,3916
Girard v. Ware, Peters's Circuit Court
' Reports,142 4293
Glass V. The Sloop Betsey, 3 Dallas, 6. 3978,
, 4014
Glauous, the, 1 Lowell. 366, 371. . . . 4247, 4261
Goede Hoop, the, Ed wards, 327 4587
' Goffr. Kilts, 15 Wend., 550 839
Gold Hunter, the, 1 Blatch. & H., 300,
I 308 4244
Goold V. Shaw, 1 Johnson's Cases, 293. 4294
Gracie v. New York Ins. Co., 8 Johns.,
I 237 3916
Granite City, the, Blatchf. Prize Cases,
355 3159
I Gran Para, the, 7 Wheat., 471 576,
I 3981,4083
I Grant V. U.S. Court of Claims, 41, 50.. 3414,
3682, 3747
I Grapeshot, the, 9 Wall., 129 3299
I Gray et al. v. Wain, 2 Sergeant &
Rawle,229 4246
I Gray v. Bartlett, 20 Pick ., 186 2361
Gray Jacket, the, 5 Wall., 342 2989, 3916
' Great West. Ins. Co. r. U. S., 112 U. S.,
I 193,197 1800
I Green v. Kopke, 36 Eng. Law and £q.,
I 396,399 3546
j Griffin v. Colver, 16 N. Y., 489. 4243
I Grim v. Phoenix Ins. Co., Johnson,
451 4304
Grisar r. McDowell, 6 Wall., 363, 379 . . 2708
Guier v. O'Daniel, 1 Binney, 349 2158
Guild t>.U.S.,lWoodb.&M., 29 4684
Gunn r. Barry, 15 Wall., 610 2399
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LXXVIII
CASES CITED.
H.
Piige.
Hahxi«.Corbett,2Bing.,a05 4304
Hall V. FraDkliD, 3 M. & W., 259 3620
Hamilton, the, 3 C. Bob.. 107 4276, 4284
Hanuam v. Hockett, 2 Bam. Sc Cress.,
934,943 844
HardiDg v. Cobarn, 12 Met., 833 .. . 2362, 2372
Haiiord v. V. S., 8 Crancb, 109 1826
Harmony, the, 1 GaU., 123 2722, 3307
Hart V. Delaware Ins. Co., 2 Wash. C.
C.,346 4283,4264,4267
Hat«h V. Smith and Trnstees, 6 Mass.,
42 2362
Hauenstein v. Lynham, 100 U. S., 483,
484 1678,1841,2573
Havelock v. Hanoill, 8 Term Beports,
277 4304
Hay worth v. Worthington, 5 Blaok.,
861 2861
Heard v. Holman, 19 C. B. N. S., 1 . . 4243, 4245
Hearne v. Wiggington, 6 Maddock's
(:h.Rep..ll9 3414
Hendrick. the, Acton's Rep., 322 4587
Heroine, the. 1 Benedict, 226 4261,
4275,4276.4282
Hiawatha, the, Blat«hf. Prise Cases, 1 . 3902
Hiawatha, the, 2 Black., 635 3003
Hickman v. Jones, 9 WaU., 197 4675
Hillier V. the Allegheny Coanty Mutual
Ins. Co., 3 Pa. State R., 470 4294
Hill r. Epley, 31 Penn St., 331 2361
Hill V. United States, 8 C. Cls. R., 470 . . 3916
Hoffhian V.Hoffman, 46 N.Y., 30 3511
Hoffhung, the, 6 C. Rob., 231. 383 4355
Hogan V. Jackson, 1 Cowper, 299, 304 . . 3414
Holbrook, adm., v. U. S., 21 Ct.Cls., 434,
438 3212
Holman v. Johnson, 1 Cowper, 343 1800
Hoop, the, 1 C. Rob., 190, 219 2807, 4261
Horn V. Keteltas, 46 N. Y., 605 2362
Hotchkiss V. Hunt, 49 Maine, 213 23C2
Howard r. Odell, 1 Allen, 85 2362
Hudson V. Guestier, 6 Craiich, 281 . . 841, 3916
Hunter v. Fry, 2 Bam. & Aid., 421 ... . 4264
Huntington «. Texas, 16 Wall., 402 4675
Hunt V. Robinson, 1 Texas, 748 3450
Hyatt r. Taylor, 42 N. Y., 258, 259 3634
Indiana, the. 1 Abb. Adm., 330 4066
Indian Chief, the, 1801, 3 C. Rob.,
12 2673, 2674, 2686, 2722, 2724, 3307
Inglis V. The Sailors' Snug Harbor,
3 Pet., 99 2528.2601,3307
Insurance Co. v. Tweed, 7 Wall., 44 . . . 4304
Isabella, the Amiable. 6 Wheat.. 1 . . . . 3217
Isabella Thompson, the, Blatchf. Prize
Casen, 377, 3 Wall., 155 3159
Itinerant, the, 2W. Rob., 236, 240 4066
J.
Page.
Jackson v. Beach, 1 Johns. CMoe, 399,
401 2708
Jemmy, the, 4 C. Rob., 31 235L 2367
Jenny, the. 5 Wall., 183 2361, 2367
Jewett V. Miller, 10 N. Y., 402 2361
Johnson o. Mcintosh, 8 Wheat., 543 .. . 250
John,the,2Dodson,336 3794,3795
Jones V, Blum. 2 Rich. (S. C). 475 2361
Jones V. Vanzandt, 2 McLean, 596 4366
Joseph, the, 1 GaUison, 545 2812
Joshua Barker, the, 1 Abb. Adm., 215. 4244
JuflVow Maria Schroeder, the, 8 Rob.,
147,163 4355
K.
Kane V. McCarthy, 63 N.C, 299 2155
Keeble V. Hickeringill. 11 East., 574 . 839, 844
Kelly V. Harrison, 2 Johns. Cases, 29 . . 2484
Kelly V. Owen, 7 Wall., 496 . . .22.55. 2487, 2489
Kennett v. Chambers, 14 How. , 38, 44. . 1604,
2940
Kerr «. Kerr, 41 Jf. Ym 272 8511
Kerswill r. Bishop, 2 C. & Jor., 529 2361
Kimball's Case, 5 C. Cls.. 252 3736
Kingsbury v. Mattocks, 81 Me., 310 .. . 4679
King, the, in his office of admiral, v.
Property Derelict, 1 Haggard's
Adm., 383 4950
Knox V.Lee, 12 Wall., 457 4675
li.
La Abra Silver Mining Co. «. Freling-
huysen, 110 U. S., 63 1339
La Amistad de Rues, 5 Wheat., 385. . . 1130,
4246,4256
Lacourv.N.Y.,3I>uer,406 4243
La Flora, 6 C. Rob., 1, 3, and note in
index, 2.
La Jeune Eugenie, 2 Mason, 409, 468 . . 828,
3916
Lake, the, 2 Wall., Jr., 52 4248
Lamb r. Durant, 12 Mass., 54 2362
Landes v. Brant, 10 How., 348, 369 2706
Laugton r. Horton, 5 Bear., 9 2361
La Peyre v. United States in U. S. Sup.
Ct., MS. Opin. nut yet reported 3916
Leeds V. Amherst, 20 Beav., 239 4243
Le Louis, 2 Dod.. 210 .... 821, 3916, 4361, 4950
Leonard v. Grant, 6 Sawyer, 603, 609 . . 2256
Leonard v. Nye, 125 Mass., 455 4679
Le Roy V. United Ins. Co., 7 Johns.. 343 42.')9
Lewis'r. Rucker, 2 Burr., 1167, 1168. . . 4258
Lilla, the, 2 Sprague, 177 4675
Lincoln v. Wri«:ht, 23 Penn ., 76, 82 ... . 2361
Liotanl v. Graves. 3 Caine, 226. 239. . . . 3916
Lively, the, IGall., 315 4238.
4244, 4247, 4256, 4270
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CASES CITED.
LXXIX
Pago.
LiTiev.Jaii80D,12EMt.,«48 4293
LiviDgston v. Columbian lus. Co., 3
Johns.. 4fl 4264
Livingston v. Maryland Ins. Co., 7
Cranch, 506 2158,
2679, 2726, 8307
lasette, the, 6 Bob., 387 3916
Long's Case, 2 Knapp's Privy Council
Reports, 51 2680
Long r. Duff, 2 Bos. & PuU., 209 2362
Los Dos Hermanos, 2 Wheat., 76 2679
Lotty , the, OlcoU, Adni ., 329 4065
Lowell V. Shaw, 15 Maine, 242 2362
Lacena v. Crawford, 3 Boa. & Pull., 75. 4263
Lucy, the, 3 C. Rob. Adm., 208 4276
Luther V. Borden, 7 How., 1 3324
M.
Mandrau) v. Willes, 3 Bam. Sc Aid.,
353 4361
Madeiros v. Hill, 8 Bing., 231 3952
David C. Magoun v. New England Ma-
rine Ins. Co., 1 Story, 167 4304
Maley v. Sbattnck, 3 Cranch, 458 2679,
4244,4246,4256
Manchester v. Massachusetts, 139
U.S., 240 841
Manning v. French, 140 Mass., 391 ; 21
N.E.,945 4685
Manning v. Leighton (Yt.), 26 Atl.,
258 4679,4681
Margaret, the, 9 Wheat., 421 2362, 2371
Maria, the, 5 Rob., 365 3916,3933
Marianua Flora, the, 11 Wheat., 1 . . . . 840,
3916, 1097
Mark v. PelU 1 Johns. Ch., 594 2361
Marryatt r. Wilson, 1 B. & P., 430 1839,
1840, 2528, 2722
Martha, the, 3 C. Rob., 107 4276, 4284
Martin ». Waddell, 16 Pet., 367 744
The Maryland Ins. Co. v. Woods, 6
Cranch, 29 3916
Mary, the, 9 Cranch, 142 3215
Mary, the, 1 Gall., 206 3217, 4277, 4355
Mary, the, 1 Spragne, 17 4274
Masterton v. The Mayor of Brooklyn,
7HiU.61,62 4245
Matchless, the, IjHagg. Adm., 97 2673,
2679, 2689, 2722
Mo A fee v. Crofford, 13 How., 447 4303
McBlair v. Gibbes, 17 How., 232, 249 . . . 2751
McConneU «. Hector, 3 B. & P., 113 . . . 2679,
2681, 2694, 2723, 2726
McCone v. McMichadl, 29 Georg., 312 . 2361
McGaw V. Ocean Ins. Co., 23 Pick., 405.
409 4263
McGregor v. Kilgore, 6 Ohio, 358 4245
Meade v. XT. S.,2 Nott. & Huntington,
224 4606
Page.
Meade t>. U.S., 9 Wall., 691 4506
Medbury v. N. Y. & E. R. R., 26 Barb.,
564 424.-»
Medeiros v. HiU, 8 Bing., 231 3901)
Mellona, the, 3 W. Rob. , 7, 13 40U6
Mentor, the, 1 C. Rob., 151 3795. 37S6
Miller v. U. S., 11 WaU., 268, 301 .. . 3770, 4675
Milligan's Case, 4 Wall., 2 3299
Milnor r. Metz, 16 Pet., 221 4679
Minerva, the, 6 Rob., 396, 397 3958
Mitchell V. Harmony, 13 How., 115, 133 . 2989,
3414,3682,3767
Mitchell V. U. S., 9 Peters, 711 250
Mitchell V. U. S., 21 WaU., 350 2609
Montoya et al. v. London Assurance
Co.. 4 Eng. Law and Eq., 500 4304
Moodiev. Betty Cathcart, Bee, 292.... 3981
Moodie v. Ship Brothers, Bee, 76 3981
Moodie v. The Ship Alfred, 3 Dallas,
807 3981
Moodie v. The Ship Phcebe Anno, 3
Dallas 319 8981
j Moorhousev. Lord, 10 H.L. Cases, 272. 2611
Mdstyn 9. Fabriga8,Cowper, 161,165.. 4035
I Mowry r. Wood. 12 Wis., 413 2362
', Maxon v. The Fanny, 2 Peter's Adm.,
I 309 3971
Mrs. Alexander's Cotton, 2 Wall., 404,
417. .. . 2722, 2724, 3681, 3694, 3746, 3747, 3748
Mulligan's Case, 4 WaU., 2 3324
Murray v. Schooner Charming Betsy,
2 Cranch, 64 2310,2679
Mutual Safety Ins. Co. v. The ship
George, Olcott's Reports, 157 4246
Myer8t?.WUli8,17C.B.,77 2361
N.
Nancy, the, Stewart's Rep. (Nova
Scotia Admiralty), 49 2722
Napier et al. v. Duke of Richmond,
Journal du Palais, an. 1839, II, 208 . 1830
Narragansett, the, 1 Blatch., 211. . 4243, 4244
Nasbt). WUliams (Comet v.WilUama),
20 Wall.,226 3511
Nathaniel Hooper, the, 3 Sumn., 542 . . 4277,
4282
Nat. Bank of Washington v. Texas,
20Wall.,372 4675
Naylor v. Taylor, 9 Barn. Sc Cress.,
718 3952
Neptunus, the, 3C. Rob., 110, 173. . 3909, 3917
Nereide, the, 9 Cranch, 388 319, 3628
Nesbitt V. Lushington, 4 T. R., 783. . .. 3554
New Haven Steamboat <k Transpor-
tation Co. V. Vanderbilt, 16 Conn.,
420 4244
New Jersey, the, Olcott, 444 4244
New World, the, v. King, 16 How.,
469 5038
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LXXX
CASES CITED.
Page. I
NovelU V. Rossi, 2 B. & Ad., 757 3511 |
Nnestra Sefiora de Begla, the, 17 t
Wall.,29,30 1016,4276,4284 j
Ocean Ins. Co. v. PoUeys, 13 Peters,
157 2362 I
Ocean Queen, the, 5 Blatch.. 493 . . 4247, 4257 |
Odin, the, 10. Rob., 208 2679
Oelricks v. Ford, 23 How., 49-65 3546 I
Ogden V. Saunders, 12 TVheat., 213, 259 2399 I
Oliverar. The Union In. Co., 3 Wheat.,
183 1719 I
Ormsby et al. v. Ihniscn, 34 Penn. St., {
462 2361 ■
Orpheus, the, 1871, 3 Law Reports (Ad-
miralty), 308 4275
Oscanyan v. Arms Co., 103 U. S., 261 . . 2749
Ouachita Cotton, the, 6 WaU., 521, 531. 2989, I
3299 I
^- I
Packet de Bilboa. the, 2 C. Rob., 133 .. . 2361
Parham v. 3 usUces, 9 Ga., 341 1721
Parlement Beige, the, 5 Prob. Div., 197 3643 |
Patrick v. Commercial In. Co., 11 |
Johnson, 9 4304
Pearl, the, 5 C.Rob., 224 3159,4276
Peisch V. Ware, 4 Cranch, 347 4355
l»ennoyerf>.Neff,95U.S.,714 3511 i
Penny wit «. Foote, 27 Ohio St., 600. .. . 3514 |
Peterhoff;the,5Wall.,28 2722,
2724,3838,3939,3948 ^
Peters v. Warren In. Co., 14 Peters, 99. 4304
Phelps V. McDonald, 99 U. S., 298. . 699, 4679
Philips r. Ledley, 1 Wash., 226 23C2 |
Plcard V. McConnick, 11 Mich., 68 . . . 2362
Pizarro, the, 2 Whwit., 227. . . .685, 2722, 2726
Pollaidr.BeU,8T.R..434 4361
Polly, the, 2 C. Rob., 361 3933, 4447
Pott««.Bell,8T.R.,648 2807
Powers t>. Manning, 154 Mass., 370, 28
N.E., 290 4M6
Pratt V. Harlow, 16 Gray , 379 2362
President, the, 5 Rob. Rep., 277 2673,
2679, 2686, 2689, 2722
l*riest V. Cummings, 16 Wend., 617 . . . 2708
Prigg V. Tlie Commonwealth of Penn-
sylvania. 16 Peters, 539, 606. 3623, 4365, 4367
Prince v. V. S., 2 GaU., 204 4355
The Prize Cases, 2 Black., 635 2984,
3765, 3909, 3916, 4035
Progress, the, Edwards, 210 4282, 4284
Prosper, the, Edw. Ad., 72-76 4244
l*nbUo Schools r. Walker, 9 Wall., 603 . 4655
Pullerr. Laniforth, 1 1 East, 232 4264
Purissima Concep«:ion, the, 6 Rob., 45. 3945
Q.
Queen v. Kevn, L. R. 2, Exch. Div.,
ey 743,744,841
Queen v. The Guardians of Stepney
Union, 9L.R. Q.B., 383,395 3623
R.
Page.
Race Horse, the 3 C. Rob., 101 42T6
R. R. Co. V. Pittsburg, 104 Penn. St.,
522,543 3634
Ralston v.The State Righta.Crabbe. 22 . 4244
Rapid, the, 1 Gallison, 295 2812
Rebecca, the, 1 Blat«h. & H., 347 4244.
4261, 4275
Reedt>.0ewett,5Me.,96 2362
Reeside v. Walker, 11 How., 272 3642
Reg. r. Barbara, 8 B. & C , 99 3634
Reg.r. Cunningham, Bell Crown Caaes,
72 1797,4337
Reg. V. Manning, 2 Carr. & Kir., 887 .. . 2256
Reg. r. Tannton, 9B.6c C. 831, 836 3626
Reusse v. Myers, 3 Campb. (N. P.),475. 2381
Rhode Island, the, 2 Blatch., 113 . . 4243, 4745
Rhode Island V.Massachusetts, 4 How-
ard, 591, 639 2404,4186
Richardson v. Nourse, 3 B. & Aid.. 237. 4254
Richards v. McDaniel, Nott Sc Mo-
Cord's Rep., vol. 2, 351 2584
Rich mond, the, 9 Cranch, 102 3848
Riley v, Hartford Ins. Co., 2 Conn., 368,
373 4263,4267
Ringv. Franklin, 2 Hall (X. Y.), 9. 2361, 23T2
Robinson v. Manf. Ins. Co., 1 Met., 143. 4263,
4264
Rogers v. Beard, 36 Barbour, 31 4302
Rolla, the, C C.Rob., 364 3916
Rose V. Himely, 4 Cranch, 241, 272 844,
1604, 2813, 3071, 3560, 3768, 3916, 4950
Ross V. Nor veil, 1 Wash. ( Va. ) , 14 2S62
Rudlugv. Smith, 2 Hagg. Consist, 371,
382 4035
Rustomjee v. Queen, L. R., 1 Q. B. D.
(1876), 487. k. 1338
S.
Sally Magee, the, Blatchf . Prize Cases,
382 3159
Sally, the, 8 Cranch, 382 2812
Sausom, the. 6 Rub. ,410 4480
Santissima Trinidad, 7 Wheat. , 283 . . . 576,
i 3215,3981,4083,4364
I Saul r. His Creditors, 5 Mart. (La.)
I N.S.,569 4365
I Savage v. Pleasants, 5 Binn., 403 4304
Schibsby v. Weatenholz, L. R., 6Q. B.,
I 155...' 3511
I Si^clis Geschwist-eru, the, 4 C. Rob-. 100 2361
So Willi's Falls Bridge v. Fisk., 3 Fos-
ter. 171 4243
Shanks r. Dupont, 3 Peters, 242, 246 . . 1678.
, 2460,2484,2492,2601
Sharpe v. Brice, 2 W. Bl., 942 4243
I Sharpt?. U.S. Ins. Co., 14 Johns., 201.. 2362
I Shaw V. Gould, L. R. 3 H. 1.. 55, App.,
457 »11
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CASES CITED.
LXXXI
SbelbjTill«, etc. B. R. Co. v. Lewark,
4liid.,471 4244
Sherman v. Wells, 28 Barb., 403 4245
Smnickaon v. Johnson, 2 Harrison
(N.J.),129 3414
Sir William Peel, the, 5 Wall., 517 ... . 3936
Smith r. Condry, 1 How. (U. S.), 28 . . . 4245,
4257
Smith V. McGnire, 3 Hurls. & N., 554 . 4261
Smooths Case, 13 WalL, 36, 45 3414
Snell V. Delaware Ins. Co., 4 Dall., 430 . 4244.
4259
Soipe, the, 1 Edwards, 381, 382 842
Sociele. the, 9 Craneh, 209 4277, 4284
South Sea v. The Clara Sjmes, Swa-
be/s Reports, 141 4282
Sprattv.Spratt, 4 Peters, 303 2618
Springbok, the, Blatchf. Prize Cases.
434 1 3928
Spring v. Haskell, 4 Allen. 1 12 4245
Stark V. Chesapeake Ins. Co., 7 Craneh,
420 2839
State V. Hallett, 8 Ala. Rep., 159 3307
State V. StoU, 17 Wall., 425 1828
State p. Xew Orleans Navigation Co.,
11 Martin (La.), 309. 313 3598, 3603
Steere«.Steere,5JohnB. Ch..l 2361
Steinkaoler's Case, 15 Op. Atty. Gen.,
15 2601,2604,2613
St John V. N. Y., 6 Dner, 315 4248
Stw Lawrence, the, 8 Craneh, 434 2812
St Lawrence, the. 1 GaU., 467 2807
Stone V. Mississippi, 101 T7. S., 814 ... . 1721
Storrs V. Barker, 6 Johns. Ch., 16^170 . 2361
Strong p. Stewart, 4 Johns. Ch., 167. . . 2361
Sturgess v. Bissell, 46 N. Y., 462 4245
Sneoession of De Circ6, 41 La. An.,
506 1153
Sacoeas, the, 1 Dods., 131, 134 842,
2363,2371,2375,3916
Sackley v. Belafleld, 2 Caine's Cases,
221 4304
Satliff V. Forgey, 1 Cowen, 89 2708
Swans, the, 7 Coke, 15, b 839,885
T.
Tabbe v. Bendelack, 3 B. & P., 207, n . . 2723,
2726
Taber et al.v. Jenny et al., 1 Sprsgue,
315 4247
Talbot V. Janson, 3 Dallas, 133. .. . 2255, 3981
Talbot V, Seeman, 1 CYanch, 137 4488
Taylor v. Barclay, 2 Sim., 213
Taylor v. Morton, 2 Curt. (TJ. S. C.
CU.),454 1841
Teresita, the, 5 Wall., 180 3952
Texas v. White, 7 Wall., 700 3916, 4675
Thirty Hogsheads of Sugar v. Boyle,
9CraDch,191 829,3216,3916
5627 VI
I Page.
I Thompson v. Hopper, 1 Ellis, Black-
bum & Ellis, 1038 4304
; Thompson V. Whitman, 18 Wall., 457.. 8514
' Thomyris, the, Ed wards's Reps., 17... 3933
Thorington r. Smith, 8 WaU., 1, 9 1720,
i 3266,4035
I Tilton V.Nelson, 27 Barb., 595 2361
Trende Soetre, the, 6 Rob.. 390, n 3916
Trident the, 1 Spink's SccL and Adm.
Rep., 217, 222 4065
• Triquet v. Bath. 3 Bnrrowa. 1478 849
, Tudor V. Macomber, 14 Pick, 34 4245,
I 4246,4253
Twee Gebroeders, Edwards, 95 1120,
2471,3945
Tyler v. Strang, 21 Barb., 198 2362
U.
Udny V. XJdny, L. R., 1 Scotch and Di*
vorce Appeals, 186^-1869, 441 2611,
2700, 2413
r. S., ex rel. Angarica, v. Bayard, 127
U.S.,251 1053
U. S., ex rel. Boynton, v. Blaine, 139
U.S.,306 1347
U. S. p. Arredondo. 6 Pet., 691, 709 2404
U. S. p. Beebe, 127 U. S.. 338, 347 4193
I U. S. P. Bevans, 3 Wheat., 336, 387 744
U. S. V. CastUlero, 2 Black., 17 2519
U. S. p. Diekelman, 92 U. S., 520 .. . 1597, 3272
U. S. p. Ferrelra, 13 How., 40 4531
U. S. V. Grnsh, 5 Mason, 290, 298 744
' t'. S. p. Guillem, 11 How., 47, 60 8307
IT. S. r. Hunter, 5 Mason, 62 4679
U. S. V. KelUr, 11 Bissell, 314 2255
U.S. p. Klein, 13 Wall., 128. . . 2414, 3682, 3747
I U. S. p. La Abra Silver Mining Co.. 29
I C.Cls.,432 „ 1348
U. S. P. Lane. 8 Wall., 185 2989
I U. S. p. Lee, 106 U. S., 196 3643
I U.S.P.O'K€efe,ll Wall.,178,179 3414,
j 3735, 3746
I r.S. p. Palmer, 3 Wheat, 610, 644 2984,
3213, 3560
I TT. S. p. Percheman, 7 Pet., 51, 57 3769
' U.S.P.Prioleau,35L.J. (Ch.)N.S.,7.. 253
I 3554, 4331
I TT. S. P. Rice, 4 Wheat, 246 3916,4035
' U. S. p. Trumbull, 48 Fed. Rep., 94 4331
U. S. p. Vaca, 18 How., 556 3524
r.S.P.Weil,29C.Cls.,523 1348
I U. S. P. Young, 94 U. S., 258 3768
! Usher p. Noble, 12 East., 639 4246, 4258
I V.
I Vallee p. Dumerguo, 4 Exc, 289 3511
I Van Rensselaer v. Kearney, 11 How.,
I 297 2361,2370
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Lxxxn
CASES CITED.
Page.
Yaagbaa, the, and Telegraph, 14 Wall.,
258 4245,4247,4257
Vavaa»eurr.Krnpp,9Ch.Div.,351... 3643
Yeazie v. Somerby , 5 A lien, 280, 281 . . . 2362
Venice, the, 2 Wall., 258, 259 2722,
2724, 3690. 3913. 3916
TeniiB, the, 8 Cranch. 253 2402,
2679, 2722, 2724, 3299, 3307
Vigilantia, the, 1 C. Bob., 1 2375, 3934
VlrgU,the,7 Jar.,1174 4065
Voorhees v. Bank of the TT. S., 10 Pet.,
449 3626
Yoa V. The IT. S. Ina. Co., 1 CaineA's
Caaea,YII 3916,4304
Yriendachap, the, 4 C. Rob., 166 3934
Yrow Anna Cathorina, the, 5 C. Rob.,
161,167 1122,2375,2724,3945
Yrow Elizabeth, the, 5 C. Rob.. 2 2375
Vrow Henrica, the, 4 C. Rob., 343. 4261, 4262
W.
Walter r. Post, 6 Duer, 363-373 4243
Wendo ver v. Hogebooni , 7 Johna., 308 . 2362
Ward V. Beck, 13 C. B. (N. S.), 668 2362
Ware w. Wlaner, 4 McCrary, 66 2255
War Onakan, the. 26 C.Rob., 299 4480
Warren v. Franklin Ina. Co., 104
Ma88.,518 4246,4259
Waten, Casea of, 4 C. Cla. R., 389 3735
Waters v. Merchanta' Louiaville Ina.
Co., 11 Pet., 213 4304
Watkinaon v. Loughton, 8 Johna., 213. 4253
Pftg«.
Wataon v. Ins. Co. of I^orth America,
lBinney,47 3916
Wayman v. Southard, 10 Wheat.. 1 . . . 3626
Weld «. U.S., 23 C. Cla., 126 4663
Weaton t>. Penuiman, 1 Mason, 306 — 2361,
2372
Whitfield V. Parfltt 4 De Gex & Smale,
240 2361
William Bagaley, the, 5 Wall., 377,
410 2363,2371
WiilianiBon v. Barrett, 13 How., 101 .. . 4239,
4243, 4244, 4245, 4261, 4273, 4282
Williamaon v. the Brig Betsy, Bee, 67. 3981
Williamau- Bank of Michigan (7 Wen-
deU,539) 3598,3803
Williams v. Brnffy, 96 U. S., 176 4331
WUliams v. Gibbes. 17 How., 239, 262 . 2731
WilUams v. Heard, 140 U. S., 529 4661
Williams v. Reynolds, 34 L. .T. Q. B.,
221 4246
Williaon v. Patteaon, 7 Taaiit.. 439. ... 2673
Wilson r. Marryat, 8 T. R., 31 2413,
2673,2679,2725,2728
Winter v. Haldiniand, 2 B. & Ai., 649 . 4258
Woodruff V. HalHey, 8 Pick., 333 2362
Wood r. Carpenter, 101 U. S., 135, 139 . 4187
Wright «. Ross, 36 Cal., 414 2362
Y.
Toung'a Case, 97 U. S., 39 1721
Yrisarri «. Clement, 2 Carr. & P., 223 . 2940
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Google
LIST OF AUTHORITIES.
A.
Abbott on Shipping.
A Collection of Sandry Pablioations and Other Documents in Relation to
the Attack made during the late War upon the private-armed Brig
General Armstrong. New York, 1833.
Acts, Ordinances, and Resolves of the General Assembly of the State of
Sonth Carolina, Passed in the Year 1784.
Adams, Charles Francis, The Struggle for Neutrality in America, an
address by.
Adams, Henry, History of the United States.
Writings of Gallatin.
Adams, John Qnincy, Diary.
Addison on Torts (3rd ed. ).
Ahrens, Cours de droit naturel on de philosophic du droit, complete, dans
les principales mati^res, par des apt^ryus historiques et politiqnes.
A General Collection of Treaties of Peace and Commerce. London, 1732.
4 vols.
Allen, Battles of the British Navy (ed. 1853).
A Memoir of Judge White, with Selections irom his Speeches and Corre-
spondence, by Mrs. Scott, one of his descendants. Philadelphia, 1856.
(Hugh Lawson White.)
American Historical Review.
American Law Register.
American State Papers, Foreign Relations.
American State Papers, Naval Affairs.
Amory's Life of James Sullivan. Boston, 1859.
Angell on Carriers.
Annario de Ambos Mundos, Nicaragua.
Annual Register (Dodsley's).
Appendix and Documeats Annexed to the Memoir filed by the Minister of
Paraguay on the question submitted to Arbitration. New York, 1878.
Appleton's Annual Encyclopsedia.
Archiva de Indias de Sevilla, Registro de Reales C^dulas, Cartas y Expe-
dientes del Presidente y Oidores de la Audiencia de Guatemala, files
for 1694r-ie96, 1726-1736, 1758-1771.
Argentine Republic, Reports of the Ministry of Foreign Relations of the.
Amanld on Insurance, edition of 1872.
Atlantic Monthly.
Lxxxm
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LX:XXIV LIST OF AUTHORITIES.
Aubry et Rau, Conrs de droit civil fran^ais, 1869.
Austin on Jurisprudence.
Ayliflfe, New Pandect of Roman Civil Law.
Ayon, CoDsideraciones sobre la cuestion de limites territoriales entre las
Republicas de Nicaragua y Costa Rica, Managua, 1872, Imprenta ''£1
Centro Americano."
Azara, Don Felix de, History of Paraguay.
Voyages iu South America.
PoBthumouB Memoirs on the Agricultural Condition
of the Rio de la Plata.
Azuni, Droit Maritime de V Europe.
B.
Bacon (Matthew), Abridgment of the Law.
Bacon (Sir Francis), Works.
Bancroft, History of Alaska.
History of Oregon.
History of the Northwest Coast.
Barbeyrao, Supplement au Corps Universel Diplomatique.
Bar's International Law.
Baudry-Lacartinerie, Precis de Droit Civil, 1882,
Beaman's The National and Private Alabama Claims and their Final and
Amicable Settlement.
Beawes, Lex Mercatoria Rediviva. London, 1771.
Beecher's Voyage to the Pacific and Behring Strait.
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Bello, Principios de Derecho Intemacioual.
Bell's Weekly Messenger, London.
Bemis, George, American Neutrality : Its Honorable Past, Its Expedient
Future. Boston, 1866.
Benjamin, L. N., Opinion of Sir Hugh Cairns and Mr. Reilly, given iu
March, 1865, on the Application of the Canadian Government, and
published in the St. Albans Raid, compiled by. Montreal, 1865.
Beuoist, C, La Politique.
Bentham, False Manner of Reasoning in Matters of Legislation.
Benton's Thirty Years' View.
Bernard's Neutrality of Great Britain.
Best on Evidence.
Bigelow on Estoppel.
Billault, "The French in Mexico;" speech in the Corps Legislatif, Febru-
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Blackstone, Commentaries.
Blaine's Twenty Years of Congress.
Blumer-Morel, Handbuch des schwelzerischeu Bundesstaatsrechts, 2 ed.
Bluntschli, Das Moderne Volkerrecht.
Le Droit International Codifi<^.
''Opinion impartiale sur la question de I' Alabama et sur la
mani^re de la r^soudre." Reprinted at Berlin, 1870, from
the Revue de Droit International.
Boletin de la Revista General de la Legislacion y Jurisprudencia.
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LIST OF AUTHORITIES. LXXXV
BonnefonZy L.. Will there be Wart Analysis of the elements which con-
stitnte, respectively, the power of England and the United States.
By an Adopted Citizen. New York, February, 1846.
Bossnet, D6fen8e de la Declaration de TAssembl^e G^n^rale du clerg^ de
France de 1682.
Boston Monthly Magazine.
Bonllenois, Traits de la Personality et de la r^alit^ des lois, coutnmeS| ou
statats, par forme d'obseryations, 1766.
Bouvier's Law Dictionary.
Bowyer, Modem Civil Law.
Universal Public Law.
Bracton, De Legibns et Consuetndinibus Anglias. Ed. by Twiss, London,
1878-1881.
British and Foreign State Papers (Hertslet's).
British Blue Books.
British Counter Case and Papers, Geneva Arbitration. American reprint.
British Statutes
Browne's Civil and Admiralty Law.
Bulletin des lois.
Bullock's Secret Service of the Confederate States in Europe.
Bnlwer's Life of Lord Palmerston.
Bnrke's Works.
Bnrlamaqui, Principes du Droit de la Nature et des Gens.
The Principles of Natural and Politic Law. (Nugent, 1823.)
Burrage's St. Croix Commission, read before the Maine Historical Society,
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Bynkershoek, Quaestionum Juris Publici libri duo, quorum primus est De
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Cabe^a de Yaca, Alvar Nufiez. Comentarios. Yalladolid, 1555.
Calvo, Derecho Intemacional te6rico y practico de Enropa y America.
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Le Droit International th^orique et pratique, pr^c6d6 d'un exposd
historique des progres de la Science du droit des gens; 3"^*^ 46.,,
compl6t6e. 4v. 8vo. Paris, 1880.
Dictionnaire de Droit International public et priv<^.
Manuel de Droit International. Paris, 1884.
Camillus (Hamilton) on Jay Treaty.
Canadian Sessional Papers.
Card, Konard de, Les Destinies de TArbitrage International.
Camazza-Amari, Traits de droit international, trad. Montanari-Revest.
Cassiodorus. Opera.
Chateaubriand, Le G^nie du Christ i an isme.
Chitty on Contracts.
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Church, George £., ''Mexico: Its Revolutions.'' New York, 1866.
Cicero, De Legibus.
De Officiis.
De Republics.
Pro Balbo.
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LXXXVI LIST OF AUTHORITIES.
Circulars and Decrees of the Captain-Oeneral of the Island of Cuba.
New York, 1869.
Clercq, de, Recueil des Trait^s de la Oance. 10 vols. 8vo. Paris,
1864-1872.
Cobbett's Letters on the late War between the United States and Great
Britain . (New York, 1815. )
Coccejus, Baron Henricas de. Grotins lUnstratns, sen Commentarii ad H.
Grotii de jure belli ac pacis libros tree, 1748.
Cockburn on Nationality.
Code of Nicaragua.
Code of Procedure of California.
Code of Procedure of Louisiana.
Code civil allemand.
Code civil franyais.
Cod! go de Comercio of Colombia.
Coggeshall's History* of American Privateers.
Coke's Littleton.
Coleccion de Docnmentos Relativos ^ la Expnlsion de los Jesnitas de la
Reptiblica Argentina y del Paraguay, en el reinado de Carlos III. ; con
introduccion y notas por Francisco Javier Brabo, Comendador de
nnmero de la Real Orden Americana de Isabel la Cat61ica. Ya prece-
dida de la Autobeografia y retrato del Colector. Madrid. (Estable-
cimiento tipogrdfico de Jose Maria Perez. Corredera b^ja San Pablo
No. 27, 1872.)
CoUeccion Legislativa de EspaQa, 1852.
Colquhoun's Roman Civil Law.
Comyn's Digest.
Congressional Documents, Executive Reports, and Miscellanies.
Congressional Globe.
Constitucion Polftica de Peril Reform ad a an 1860.
Consular Regulations of the United States.
Convencion Internacional entre los Gobiernos de Nicaragua y Costa Rica
y Don Felix Belly para la canalizaciou del Istmo. Managua, Imprenta
del Progreso, frente al Palacio Nacional, 1859.
Cook, Voyage tc the Pacific Ocean, 1776-1780. London, 1874.
Cooley's Constitutional Limitations, ed. of 1883.
Cooper's Statutes of South Carolina.
Cooper's Justinian.
Coues's Expeditions of Zebulon Montgomery Pike.
History of the Expedition under the Command of Lewis and Clark.
Courtenay, Memoirs of Sir William Temple.
Coxe's Judicial Power and Unconstitutional Legislation.
Creasy's International Law.
Cruise on Real Property.
Curtis' Life of Buchanan.
Life of Webster.
Cnshing's Treaty of Washington.
Cussy, de. Phases et Causes C^l^bres du Droit Maritime des Nations.
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Customs Regulations, Treasury Department.
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IJ8T OF AUTHORITIES. LXXXVII
D.
Dalloz, Jnrispradence G<^n^rale.
Dana's Wheaton.
Dante, De Monarchia.
Darras, Histoire de T^glise.
DavU, BaDcroft, JoarDal of the Joint High CommisBion. (MS.)
Mr. Fish and the Alabama Claims.
Treaty Notes.
Davis' International Law.
Deane's Law of Blockade.
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Delmolomby Zachariae.
Demangeat, Charles (editor), Traitd du droit international priv<^, par
Foelix. Quatrieme ddition. 8vo. Paris, 1866'.
Demersay, Alfred, Histoire physique, (Scouomiqueet politique du Paraguay
et des ^^tablissements des J^suites. 1860. 2 vols.
Dep6sito hidrogriifico, Madrid.
Demburg, Pandekten. 3. Aufl. 1892.
Descripcion del Reino de Guatemala, printed at Guatemala, 1850.
Despa«;net, Cours de Droit International Public.
Diario Oficial of Bogota.
Dicey on Domicil.
Dickinson, Daniel S., Life, Letters, and Speeches of.
Dictionary of the (French) Academy.
Digesto Italiano.
Diplomatic Correspondence of the United States, 1861-1869.
Dixon, Abridgment of the Maritime Law; comprising General and Par-
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Salvage; to which is added the General Duties of Masters and Own-
ers, with a copious appendix, containing several useful and legally
approved forms. 8vo. Norfolk, 1858.
Documentos relatives a la reclamaciun intentada por la legacidn de los
Estados Unidos de America en Caracas, d favor del Ciudadano Norte-
americano Hancox, 6 de la Compafiia de Transporte por Vapor de
Veneznela. Pnblicacion Oficial Caracas, imprenta y litograffa de
Gobiemo Nacional. 1890.
Documentos relatives d las ultimas negociaciones entre Nicaragua y
Costa Rica sobre limites Territoriales, Canal interoce^nico. Managua,
1872.
Documents and Proceedings of the Halifax Commission.
Dod's Journal of Martha Pintard Bayard.
Domat's Civil and Public Laws, Strahan's ed. (1732).
Dubois, Pierre, Des Recuperatione Terre Sancte (edited by Ch.-V. Lang-
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Dner ou Insurance.
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Du Mont, Corps Universel Diplomatique.
Dyer, Modem Europe.
Eastern Argus, the, Portland, Me.
Egger, £tndes Historiques sur les Traitcs Publi<^8 chez les Grecs et chez
lea Romaius, depuis les temps les plus anciens jusqn'aux premiers
ai^clea de Vhie chr^tienne. 1866.
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LXXXVIII LIST OP AUTHORITIES.
£1 Paraguayo Indipendiente.
Emerigon on iDsurance.
Encifio, Snma de Geographia que trata de todas las parti das yprorinci as
del mundoy 1819; e Grancisco Falero (Falleiro), del tratado de la
esphera y del arte del marear . . . 1535.
Encyclopiedia Britannica.
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Ezecntlve Journal of the Senate of the United States.
F.
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Felice, de. Lemons de Droit de la Nature et des Gens.
Feudally Philip R., United States Attorney for the District of Columbia,
Argument of, on the Trial of George A. Gardiner in the Criminal
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Washington, 1853.
Ferguson, Manual of International Law.
Fernandez, Leon, Coleccion de Documentos para la Historia de Costa Rica.
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Fishery Industries of the United States.
Fitzmaurice's Life of Shelburne.
Flassan's Diplomatie Frangaise.
Foelix, Tratado de Derecho Interuacional Privado. Madrid, 1860.
Foreign Relations of the United States, 1870-1898.
Forum, The.
Foster's Federal Practice.
Francis's Opinions and Policy of Lord Palmerston.
Franklin, Works; ed. by Sparks.
Funck-Brentano et Sorel, Precis du Droit des Gens.
Fur-Seal Arbitration.
Fuzier-Herman, Code civil annot^.
G.
Gaceta de Nicaragua.
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Gardner^R Institutes of International Law, public and private, as settled
by the Supreme Court of the United States, and by our republic, with
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Gerber, Grundziige eines Systems des deutschen Staatsrechts.
Gessner, Le Droit des Neutres sur Mer.
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Greenleaf on Evidence.
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LIST OF AUTHORITIES. LXXXIX
Grigsby's Disconrse on the Life and Character of the Hon. Littleton
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Grotlos, De Jure BelJi ac Pacis.
Le Droit de la Guerre et de la Paix, ed. Barbeyrac.
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Gnizot, L' l^glise et la Soci<^t^ Chri<^tienne.
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H.
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Historia General de las Islas Occidentales.
Hind, Henry Youle, An Exposition of the Fisheries Commision Frauds.
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the Revista Trimestral do Instituto Historico (leographico 6 Etno-
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Jadicial Review, The.
Justinian, Institutes.
K.
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La Tour, De la Mer Territoriale.
Laurent, Etudes sur THlstoire de 1' Humanity.
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Laws of the Commonwealth of Pennsylvania, Dallas's edition.
Laws of the State of New York, ed. 1886.
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Lom6nie's Beaumarchais and His Times.
London Daily News.
London Morning Advertiser.
London Morning Chronicle.
London Morninij^ Post.
London Nonconformist.
London Observer.
London Saturday Review.
London Spectator.
London Standard.
London Telegraph.
London Times.
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O.
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Opinious of the Attorney -General of the United States.
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CHAPTER T.
THE SAINT CROIX RIVER: COMMISSION UNDER
ARTICLE V. OF THE JAY TREATY.
^^And that all disputes which might arise in
'fSeU tedSuteT ^^^'^^^^^^^ *^® subject of the boundaries of the
' said United States may be prevented, it is
hereby agreed and declared, that the following are, and shall
be their boundaries, viz." Such are the introductory words of
the second article of the treaty of i>eace signed at Paris Sep-
tember 3, 1783, by D. Hartley on the part of Great Britain, and
by John Adams, B. Franklin, and John Jay on the part of the
United States. Then follows the description of the boundaries,
which is the same as that contained in the second of the pro-
visional articles of peace signed at Paris November 30, 1782, on
the part of Great Britain by Richard Oswald, aud on the part
of the United States by John Adams, B. Franklin, John Jay,
and Henry Laurens. This description is as follows:
Artieifi IL f Treatv *' From the northwest angle of Nova Scotia,
f 1788 ^^^* *^^^ angle which is formed by a line drawn
^ due north from the source of Saint Croix River
to the Highlands; along the said Highlands which divide those
rivers that empty themselves into the river St. Lawrence, fyom
those which fall into the Atlantic Oceau, to the northwestern-
most head of Connecticut River; thence down along the mid-
dle of that river, to the forty-fifth degree of north latitude;
from thence, by a line due west on said latitude, until it strikes
the river Iroquois or Cataraquy; thence along the middle of
said river into Lake Ontario, througli the middle of said lake
until it strikes the communication by water between that lake
and Lake Erie; thence along the middle of said communication
into Lake Erie, through the middle of said lake until it arrives
at the water communication between that lake and Lake Huron;
thence along the middle of said water communication into the
Lake Huron; thence through the middle of said lake to the
water communication between that lake and Lake Superior;
thence through Lake Superior northward of the Isles Royal
and Phelipeaux, to the Long Lake; thence through the middle
1
5627 1
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2 INTERNATIONAL ARBITRATIONS.
of said Long Lake, and the water commuuication between it
and the Lake of the Woods, to the said Lake ot the Woods;
thence through the said lake to the most northwestern point
thereof, and from thence on a due west course to the river
Mississippi; thence by a line to be drawn along the middle of
the said river Mississippi until it shall intersect the northern-
most part of the thirty-tirst degree of north latitude. South,
by a line to be drawn due east from the determination of the
line last mentioned, in the latitude of thirty-one degrees north
of the Equator, to the middle of the river Apalachicola or Cata-
houche; thence along the middle thereof to its junction with
the Flint River; thence straight t<» the head of St. Mary's
Kiver; and thence down along the middle of St. Mary's River
to the Atlantic Ocean. East, by a line to be drawn along the
middle of the river St. Croix, from its month in the Bay of
Fundy to its source, and from its source directly north to the
aforesaid Highlands, which divide the rivers that fall into the
Atlantic Ocean from those which fall into the river St. Law-
rence ; comprehending all islands within twenty leagues of any
part of the shores of the United States, and lying between
lines to be drawn due east from the points where the aforesaid
boundaries between Nova Scotia on the one part, and East
Florida on the other, shall respectively touch the Bay of Fundy
and the Atlantic Ocean ; excepting such islands as now are, or
heretofore have been, within the limits of the said province of
Nova Scotia."
This definition of the boundaries of the
^"*]^i!^^°' *^* United States, far from preventing disputes,
was exceedingly fruitful of them. When it
was made, most of the country through which the lines were
to run had never been surveyed, and the maps of it were nec-
essarily inaccurate. Parts of the boundary were declared to
be "too imperfectly described to be 8uscei)tible of execution."^
But, apart from the uncertainty resulting from the absence of
accurate topographical knowledge, the possibilities of dispute
were enlarged by the fact that the negotiators of the treaty
made no official record of their intentions. Though the same
map was used by both sides in the negotiation, on no copy of it
were the lines intended by the negotiators jointly and formally
entered, and no map was officially attached to the treaty.
Almost immediately after the ratification of
^^rcroi?** the treaty of peace, disputes as to the bound-
ary began to arise. The first grew out of the
designation of the River St. Croix as a part of the line. By
1 Message of Presideut Jefferson to Congress, October 17, 1803, Am. State
Papers, For. Rel. 1.62.
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THE SAINT CROIX COMMISSION. 6
recurring to the language of the treaty it will be seen that the
northern boundary of the United States begins, in its westward
course, at " the northwest angle of Nova Scotia,'* which is de-
scribed as "that angle which is formed by a line drawn due
north from the source of the Saint Croix Eiver to the High-
lands;" and that the eastern boundary is a line "to be drawn
along the middle of the River St. Croix from its mouth in the
Bay of Fundy to its source, and from its source directly north
to the aforesaid Uighlands," etc. Thus the St. Croix possesses
a double importance. It not only forms a i)art of the eastern
boundary, but it also serves as a basis for the determination of
the northern boundary.
On Mitchell's map of 1755, which was used
^^^^\r6S^^^ by the negotiators of the treaty of peace, and
of which a copy is inserted at the beginning of
this chapter, the River St. Croix appears as a stream of con-
siderable volume, having its source in a lake called Kousaki
and its mouth at the eastern head of what is now known as
Passamaquoddy Bay, though on the map the greater part of
the bay has no separate designation and appears merely as a
part of the Bay of Fundy. To the westward on the same
map is another stream called the "Passamacadie" (Passama-
quoddy), emptying into a small bay or estuary of the same
name. But, while Mitchell's map was correct in representing
two streams of some magnitude as falling into the body of
water commonly known as *Passamaquoddy Bay, it did not
give their true courses or positions, nor was there in the region
any river then commonly known as the St. Croix. This name
originated with the early French explorers, from whose charts
it was transferred to later maps, on which it was given first
to one stream and then to another; and in all these maps, in-
cluding that of Mitchell, the topography of the region was
inaccurate.
Of the two principal streams that fall into
^'^IS^*'^'' Passamaquoddy Bay, that to the east was
known in 1782, as it is still known, by the In-
dian name of Magaguadavic; that to the west as the Schoo-
diac, Scoudiac, or Schoodic;. These are the only streams of
any magnitude that fall into the Bay of Fundy west of the
River St. John. The Magaguadavic, or eastern river, like the
St. Croix of Mitchell's map, pursues from its mouth a course
generally west of north, but, unlike the latter, it divides near
Digitized by LjOOQIC
4 INTERNATIONAL ARBITRATIONS.
its source into two branches, each of which has its head in
a lake. The Schoodiae, wholly unlike the Passamacadie of
Mitchell, after pursuing for some distance from its mouth a
crooked course, generally west-northwest, divides into two
branches, one of which extends to the north, under the name
of the Ghiputneticook, and the other in a course generally
somewhat west of south to a tangled chain of waters called the
Schoodiae Lakes. The United States claimed the Magagua-
davic as the St. Croix of the treaty, and the head of its west-
ern lake as its source. Great Britain claimed the Schoodiae
as the trae St. Croix, and the most remote waters of the lakes
at the head of its western branch as its source. Thus, while
the mouths of the Magaguadavic and Schoodiae lie about
nine miles apart, the distance between lines drawn due north
from their alleged sources was quite fifty miles, and the area
of the territory involved was from seven thousand to eight
thousand square miles.
Immediately after the ratification of the
^^d)^!^!^^ treaty of peace the authorities of Kova Scotia,
treating the liiver Schoodiae as the St. Croix
of the treaty, made grants of land on its eastern bank to
loyalist refugees who fornaed there the settlement of St.
Andrews. This proceeding attracted the attention of Con-
gress and of the authorities of Massachusetts, and the latter
appointed a commission of three persons — two of whom were
Oenerals Lincoln and Knox — to make an investigation. These
commissioners, besides visiting Passamaquoddy Bay, obtained
statements from John Adams and John Jay, and also from
John Mitchell, then a resident of Chester, New Hampshire,
who was employed by Governor Bernard, of Massachusetts,
in 1764 to ascertain the river known under the name of the
St. Croix; and they reported that, though the map used by
the negotiators was defective, the Magaguadavic was the
river intended by the treaty. Mr. Adams in his statement
took the ground that as the Eiver St. Croix on Mitchell's map
was the river nearest to the St. John, the Magaguadavic, as
being nearer to the St. John than the Schoodiae, should be
accepted as the boundary. The uncertainties of the situation
and the views of the British authorities and surveyors were
very fairly stated in a letter of Gen. Eufus Putnam to a com-
mittee of the Massachusetts legislature of December 27, 1784.^
>Ain. state Papers, For. Eel. I. 93.
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THE SAINT CROIX COMMISSION. 5
As it was impossible to determine with abso-
u^ted suites ^^^® certainty what river was intended in the
treaty under the name of the St. Croix, Con-
gress, on the recommendation of Mr. Jay, who was then Sec-
retary of Foreign Affairs, resolved that the minister of the
United States at London should be instructed to bring the
question to the attention of the British Government, and, if
an adjustment by negotiation could not be effected, to propose
a settlement by commissioners. Instructions were accordingly
sent, bntnothmg could at the time be accomplished; and on
the 9th of February 1790, during the second session of the
first Congress under the Constitution, Washington submitted
the matter to the consideration of the Senate with an expres-
sion of his opinion that all questions between the United
States and other nations should be speedily and amicably
settled.' On the 12th of March the Senate advised that effec-
tual measures should be taken to settle all disputes in regard
to the line, and that "it would be proper to cause a repre-
sentation of the case to be made to the court of Great Britain,
and if said disputes can not be otherwise amicably adjusted,
to propose that commissioners be appointed to hear and
finally decide those disputes, in the manner pointed out in
the report of the late Secretary of the United States for the
Department of Foreign Affairs of the 21st of April, 1785."*
The question, however, still remained unsettled when, in
1794, Mr. Jay went to England to negotiate for the general
adjustment of differences. On the 19th of November 1794 he
concluded a treaty, the fifth article of wliich reads as follows;
. . .^, "Whereas doubts have arisen what river
/^Twatv was truly intended under the name of the
*y ^' Eiver St. Croix, mentioned in the said treaty
of peace, and forming a part of the boundary therein described ; '
that question shall be referred to the final decision of com-
missioners to be appointed in the following manner, viz:
"One commissioner shall be named by His Majesty, and one
by the President of the United States, by and with the advice
and consent of the Senate thereof, and the said two commis
sioners shall agree on the choice of a third ; or, if they can not
so agree, they shall each propose one person, and of the two
names so proposed one shall be drawn by lot in the presence
of the two original commissioners. And the three commis-
sioners so appointed shall be sworn, impartially to examine
and decide the said question, according to such evidence as
1 Am. State Papers, For. Rel. I. 90-99.
«MS8. Dept. of State.
Digitized by LjOOQIC
6 INTERNATIONAL ARBITRATIONS.
shall respectively be laid before them on the i)art of the British
Government and of the United States. The said commission-
ers shall meet at Halifax, and shall have power to adjonrn to
such other place or ])laces as they shall think fit. They shall
have power to appoint a secretary, and to employ such sur-
veyors or other persons as they shall judge necessary. The
said commissioners shall, by a declaration, under their hands
and seals, decide what river is the River St. Croix, intended
by the treaty. The said declaration shall contain a description
of the said river, and shall particularize the latitude and
longitude of its mouth and of its source. Duplicates of this
declaration and of the statements of their accounts, and of
the journal of their i)rocee(lings, shall be delivered by them
to the agent of His Majesty and to the agent of the United
States, who may be respectively appointed and authorized to
manage the business on behalf of the respective Governments.
And both parties agree to consider such decision as final and
conclusive, so as that the same shall never hereafter be called
into question, or made the subject of dispute or difference
between them." ^
Under this article the President of the
Appointment of Com- ^^j.^^^j States on the 1st of A])ril, 1796,
niiMioner by tno '
United States. named as commissioner General Knox, but he
dei'lined to serve on the ground, among others,
that he had a personal interest in the result of the controversy.
The President then, on the 2l8t of May, appointed David
Howell, a <'itizen of Rhode Island, who had been attorney-
general of the State and a member of its supreme court. Mr,
Howell was a graduate of Princeton College, and held for a
number of years the chair of mathematics and natural philoso-
phy, and also that of law, in Brown University at Providence.
He was at one time a member of the Continental Congress.
He had a reputation for talents and learning, and was cele-
brated for wit and anecdote.
On the part of Great Britain the commis-
AppointmentofCom- .^^^j. j^pp^iij^ed by the King was Thomas
misaoner by Great _^ _ « . ,. ^^ tV^ . ^ ^ «
Britain. l^arclay, of Annapolis, Nova Scotia, who had
won the rank of colonel as a volunteer in the
British forces during the American Revolution. At the out
break of the war he was living in Ulster County, New York,
of which State he was a native, when he was driven from his
'In a letter to Kdiniind Randolph, Secretary of State, on the day of tln'
signature of tlio treaty, Mr. Jay, relVjrring to the lifth article, observe<l
that in the discussions before the commissioners the old FYench claims
might be revived, and that the United States must adhere to MitchellB
map. The Vice-President, he said, perfectly understood the bnainesa.
(Am. State Papers, For. Rel. I. 503.)
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THE SAINT CBOIX COMMISSION. 7
borne on account of his royalist sympathies. At the close of the
war he, with many other proscribed loyalists, sought a home
iu Nova Scotia, where he practiced his profession of the law
(which he had studied under John Jay) and where he became
a member and afterward speaker of the provincial assembly.
His appointment as commissioner to settle the dispute as to
the St. Croix River was the beginning of a long career as the
representative of his government in various capacities in the
United States or in relation to American affairs.^
In May 1796, Mr. Barclay being in New
Frdinunaiy Meeting y^^j^ ^^ private business, Mr. Pickering, who
was then Secretary of State, suggested that it
would be well for him to meet Mr. Howell, the American com-
missioner, with a view to choose a third commissioner and a
secretary, as well as a man of science to ascertain with pre-
cision the latitudes and longitudes of the mouth and source of
the St. Croix. Though the treaty indicated that the first
meeting of the commissioners in the execution of their official
functions should be at Halifax, Mr. Pickering did not con-
sider this indispensable.' Mr. Barclay, while withholding his
own opinion on the question, found himself precluded by his
instructions from acting officially until he had met the Ameri-
can commissioner at Halifax, but he consented to hold with
Mr. Howell a private interview, in which they might freely
though informally discuss their future proceedings and come
to some determination respecting the persons mentioned by
Mr. Pickering.^ This conference took place at Boston on the
27th of June, 1796. Several persons were named for third
commissioner, and among those suggested by Mr. Howell was
Egbert Benson, of New York, who was Mr. Barclay's cousin
of the half blood, his father having been a half-brother of Bar-
clay's mother. No choice, however, was made, and, in the
expectation that it would be necessary to resort to lot, it was
agreed that each side should name *' three able and respectable
characters,^ from the list of whom tlie opposite party should
strike the names of two, and that the two remaining names
should be put into a box and one drawn out for the third
commissioner.^
1 Rivea's Correspondence of Thomas Barclay.
« Id. 48, 49.
3 Id. 49, 50.
^Id.61.
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8 INTERNATIONAL ARBITRATIONS.
Meanwhile each government had appointed
^^^ ^Lent. *^ agent to represent it before the commis-
sioners. On the part of the United States the
agent chosen was James Sullivan, a citizen of Massachusetts,
and a native of the District of Maine, of which he was the
historian.^ His commission bears date May 21, 179(}. A law-
yer by profession, Mr. Sullivan held numerous posts in the
public service, being at divers times a member of the general
court of Massachusetts, a member of the committee of public
safety, a judge of the supreme judicial court, a member of Con-
gress, and governor of his native commonwealth. He was also
president of the Historical Society of Massachusetts. At the
time of his appointment as agent of the United States before
the St. Croix Commission he was attorney-general of Massa-
chusetts.* He applied himself to his new duties with great
diligence.
' History of the District of Maine, by James Salliyan, Boston, 1795.
-^ Mr. Pickering, Secretary of State, in his instrnctions to Mr. Sullivan,
said: *'Your researches as the historian of the District of Maine, yoar
reputation as a lawyer, and your official employment as the attorney-gen-
eral of Massachusetts, the State directly and most materially interested
in the event, have designated you as the agent of the United States to
manage their claim of boundary where their territory joins that of His
Britannic Majesty, in his province of New Brunswick, formerly a part of
his province of Nova Scotia. You are apprised that the question to be
examined and decided is stated in the iifth article of the treaty of amity,
commerce, and navigation between the United States and His Britannic
Majesty. The quantity of land the title of which depends on this decision
is an object so interesting as to demand an accurate and thorough inves-
tigation of the claims of the two nations. It is supposed that yon are
already possessed of important documents concerning them ; but it is desir-
able that you should diligently inquire and search for any others which
public records or other repositories, public or private, may have preserved.
The pending decision is to b© final. Great industry, therefore, will be
necessary to collect, and much diligence and ability required to arrange
and enforce, the evidence in support of the claim of the United States.
Besides written documents, it is possible that living witnesses, if carefully
sought for, may yet be found whose testimony may throw much light on, if
not positively establish,' our claim. To obtain these, if they exist, as well
as all written documents, the President relies on your diligent research
and inquiry; and in the application of them to support the interests of the
United States he assures himself of the utmost exertion of your ability.^'
(Amory's Life of James SuUivan, I. 307, 308.) *'Two of the council, two
of the senate, and one of the most eminent of the law counsel in the
State of Massachusetts, '* says Mr. Barclay, ''were assigned to assist Mr.
Sullivan in collecting documents and evidence, and in preparing the case
Digitized by LjOOQIC
THE SAtNT CROIX COMMISSION. 9
The agent of Great Britain was Ward Chip-
A^mitoent o jj^.^^ ^j^^ g^jg^ ^^^ ^ native of Massachusetts,
Bntiih agent. '
Like Mr. Barclay, he had espoused the royalist
cause in the Bevolution, had served in the British army, and
at the close of the war had sought refuge in Nova Scotia, taking
up his residence in St. John, then in Nova Scotia, but which
was later to be included in New Brunswick. At the time of
his apx)ointment as British agent before the St. Croix Commis-
sion he was solicitor-general of New Brunswick, of which prov-
ince he was afterwards chief justice and president.^
On the 12th of August 1796 Mr. Howell,
^ot^Tpro^^!!^ Mr. Sullivan, Mr. Webber, i)rofes8or of as-
HaMfox. tronomy at Harvard College, and other mem-
bers of the American party sailed from Boston
for Halifax in an American sloop called the Portland Packet.
As no commercial intercourse was at the time allowed between
and arguments ou this important question.'' (Rives's Correspondence of
Thomas Barclay, 67.) Amory, in his Life of Sullivan, I. 322, says that
"Colonel Pickering • * * procured for Sullivan mjinyvaluahle hooks,
and among others, after sending for them without success to Europe, bor-
rowed from the library of Jefferson copies of Charaplain and L'Escarbot."
* Burrage^s " St. Croix Commission," read before the Maine Historical
Society February 6, 1895. Mr. Barclay, in a letter to Lord Grenville, of
August 30, 1796, says : "I have industriously exerted myself since I had the
honor of receiving his Majesty's Commission in procuring for the Consid-
eration of Mr. Chipman His Majesty's Agent such papers proofs and docu-
ments as conld throw light upon the subject in controversy, but I find his
zeal and industry in the fulfillment of the duties of his appointment, and
his thoro'ugh knowledge of the subject will relieve me from every appre-
hension that anything will be omitted in procuring or aiTanging the evi-
dence in support of the Claims of the British Government which can in
any degree tend to elucidate their justness or force." (Rives's Corre-
spondence of Thomas Barclay, 58.) Burrage, in his "St. Croix Commis-
sion," page 5, says that Mr. Chipman, in the collection of evidence, had
"the as-^istance of Phineas Bond, the British Consul at Philadelphia;
Robert Pagan, a judge of the Court of Common Pleas (of New Brunswick),
and others." Among the "and others" there seems to have been a person
who WS18 able to supply the British minister and British consul at Phila-
delphia, in the early stages of the business, with copies of pjipers ou which
the United States relied, and probably with a copy of its claim. This
person and the papers furnished by him are referred to in several letters
of Mr. Bond, the British consul, to Mr. Barclay. The latter, however,
cautioned Bond against him, saying that ho was "a man of duplicity and
not to be trusted." Bond feebly excused him, saying that the "person"
referred to did not, in the present instance, conceive that he betrayed any
confidence, but, on the contrary, "professed that Truth alone was thi.
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10 INTERNATIONAL ARBITRATIONS.
the United States and British North America in American
bottoms, and there was risk of interruption by hostile craisers
if the party sailed in a British vessel, Great Britain being then
at war with France, the Portland Packet was chartered
8i>ecially for the voyage. She arrived at Halifax on the 16th
of August. Her passengers were received with great hos-
pitality and handsomely entertained, especially by the refu-
gee loyalists.^
Ou the 2l8t of August Mr. Barclay came up
^°™* . *^?S .? from Annapolis, and on the following day had
iah CommiBtioiiera. ^^^ ^^^^ official meeting with Mr. Howell. Mr.
Chipman did not appear till the 24th of August
When the commissioners exhibited their
« V 4^«-*.- commissions it was found that the commission
ers of a Migonty « ^-. ^r i /.
oftheCommiMlon. ^f Mr. Howell, after reciting the provisions of
the treaty, authorized him, in general terms,
" with the other Commissioners duly sworn to proceed to decide
the said question and exactly perform all the duties conjoined
and necessary to be done to carry the said fifth article into
complete execution'," while the King's commissi<m to Mr. Bar-
clay declared, *' We will give and cause to be given full force
and effect to such final decision in the premises as by our said
Commissioner together with the other two commissioners above
mentioned or the major part of the said three Commissioners,
shall duly be made according to the Provisions of the said
Treaty." Mr. Barclay, observing this variance, requested Mr.
Howell to bring it to the notice of his government, in order
that his commission might be made to conform to that of the
British commissioner. Mr. Howell, who doubtless was not
aware of the fact that on the 26th of the preceding July the
Attorney- General of the United States, Mr. Lee, had advised
the Secretary of State that the concurrence of all three com-
missioners was necessary to a decision,* declined to accede to
this request, declaring that it was not only his own opinion
but that of every man in office in the United States with whom
object of his luvestigation/' Bond not unnaturally concludes tfiis enplie-
raiatio defense of the '' person" by declaring: '* Knowing Him as well as I
did, tbere was little Danger tbat our Cause should suffer by a Surcharge of
Confidence.*' ( Rives's Correspondence of Thomas Barclay, 47, 48, 52-^,
54-66,60,64,71.)
^ Amory's Life of James Sullivan, I. 320.
' 1 Opinions of the Attorneys-General, 66.
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THE SAINT CROIX COMMISSION. 11
he had conversed oil the subject, that a declaration ander the
hands and seals of a majority of the commissioners would be
final and conclusive.^ Relying on this declaration, and on his
own opinion as to the proper construction of the article, Mr.
Barclay decided to proceed with the arbitration, and referred
the question to his government. Lord Grenville, though he
considered the variation "extremely unimportant in itself,^'
instructed the British minister at Philadelphia, Mr. Listen, to
propose an exchange of declarations to the effect that the de-
cision of a majority of the commissioners would be accepted
as valid, at the same time observing that no decision cjould be
rendered but in the presence of the three commissioners.^ Mr.
Listen, on reading his instructions, failed to perceive the point
in doubt, and based his representations on the absence from
Mr. Howell's commission of an explicit declaration that the
United States would give the final decision of the commis-
sioners "full force and efl'ect," with the result "that Colonel
Pickering was a little hurt as well at the imputation of inaccu-
racy or insutticiency thus cast on an instrument which had
been carefully drawn up by himself, as at the surmise that ap-
peared to be started respecting the sincerity and good faith of
the Government of the United States." " I did not, therefore,"
says Mr. Liston, "insist upon any changes being made in Mr.
Howell's commission, and contented myself with a general dec-
laration, made to me by authority, that the President would
give the decision of the commissioners full force and effect."^
* Mr. Barclay to Lord Grenville, August 30, 1796, Rives's Correspondenoe
of Thomas Barclay, 57.
' Rives's Correspondence of Thomas Barclay, 72.
5 Mr. Liston to Mr. Barclay, October 30, 1797, Rives's Correspondence of
Thomas Barclay, 77. Mr. Liston broaght the snbject before Mr. Pickering
in a note of April 1, 1797, in which, after quoting from the commissions,
he said: ** It is by command of my snperiors, sir, that I state this circum-
stance to yon, not doubting that I shall receive assurances that whatever
difference there may be between the tenonr of Mr. Howell's commission
and that of Mr. Barclay, the American Government is no less determined
than that of Great Britain to consider as final and conclusive the decision
of the three commissioners in question or a majority of them respecting
the River St. Croix in the Treaty of Peace, and that the President will
readily take every step that may be necessary to give full force.and effect
to their award on that subject whatever it may be.'' It is to he observed
that the assurance asked for by Mr. Liston applied as well to the deci-
sion of the three commissioners as to that of a majority of them. In his
reply of April 3, 1797, Mr. Pickering refers to Mr. Liston's note as relating
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12 INTERNATIONAL ARBITRATIONS.
Ill another letter to Mr. Barclay of June 11, 1798, only four
months before the decision of the commissioners was rendered,
Mr. Liston said: ^<I shall now take an opportunity of explain-
ing the matter to Colonel Pickering; though the distance of
time is so great and the dissatisfaction showed by him was so
slight, that it is hardly worth while to return to the subject" '
It does not appear that the subject was mentioned again.
On the 26th of August Messrs. Barclay and
aaMtumM to Legal jg^^^^ requested the agents to attend and
Coostitation of , . , * , ^ ,
Commifldon. ad Vise them as to how far the two commis-
sioners might proceed in the discharge of their
duties before the appointment of a third. As has been seen, tbe
treaty provided that the ^^ said Commissioners" should meet at
Halifax, and should have power to adjourn to such other
place or places as they should think fit; and that they should
have power to appoint a secretary and to employ such sur-
veyors or other persons as they should judge necessary. Mr.
Barclay, when in the United States, considered that he was
prevented by his instructions from acting officially till he had
met the American commissioner at Halifax. Mr. Sullivan had
held a different interpretation of the treaty, maintaining that
the meeting required to take place at Halifax was a meeting of
the three commissioners, and that the commissioners appointed
by the two governments might select a third prior to any meet-
ing at Halifax. He had expressed this opinion to Mr. Barclay
and Mr. Howell at Boston. But, while recalling this opinion,
" to the difference in the forms of the commissions/' hut does not advert
to the words ''a majority of them.'' He merely says that Mr. Howell's
commission is ** deemed adequate/' and declares : "The award of the com-
missioners will derive its binding force fV>om the treaty itself, which bein^
by our Constitution a supreme law of the land, the President is of course
to take care that it he faithfully executed. This is his constitutional duty,
sanctioned by his solemn oath the force and effect of which can by no
declaratory words be increased. Nevertheless, to evince the candour of
the American Government, and to satisfy that of Great Britain, the Presi-
dent has no hesitation to assure his Britannic Majesty, that the Qoveni-
ment of the United States, agreeably to the stipulation of the treaty, * will
consider the decision of the CommissionerH aforesaid as final and conclu-
sive, so as the same shall never thereafter be called in question, or made
the subject of dispute or difference between them,' and that in conformity
with his duty as the Chief Executive power of the United States, he will
give to that decision its full force and effect." (MSS. Dept. of State.)
' Rives's Correspondence of Thomas Barclay, 86.
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THE SAINT CBOIX COMMISSION. 13
he now suggested that, as it had been determined at Boston
that the commissioners required to meet at Halifax were the
commissioners appointed by the two governments, they had the
power under the treaty to appoint a secretary, order a survey,
and adjourn. Mr. Ghipman took the opposite view, holding
that the two commissioners might when at Boston have
selected a third ; that the meeting required to be at Halifax
was a meeting of the three; and that the two could perform no
official act without the third. To this view both commissioners
now assented. In this predicament Mr. Sullivan, perceiving
that it might become necessary either to prolong the business
till 1798 or else to take a third commissioner from Kova Scotia
or New Brunswick, on the 27th of August filed a memorial, to
which the British agent assented, proposing that the two com-
missioners, in order to save time, should direct the surveys to
be commenced and certain other preliminary matters to be
attended to.* The commissioners answered: "The two com-
missioners now present do not consider themselves without
the presence of the third as having authority to give an
official answer to the above memorial, or to order a survey
agreeably to the treaty of amity etc., relating to this case.
But as a survey will be necessary in the business, and
the having it effected this season will hasten the decision, we
in our individual capacity advise the agents to proceed to
have a survey made and to procure artists agreeably to the
proposals contained in the said memorial.''^ On the receipt
of this advice the agents agreed forthwith to have surveys
made of Passamaquoddy Bay, its islands and shores, and of the
rivers Schoodiac and Magaguadavic and their branches, and
to have the latitude and longitude of the mouths of the
rivers determined, in the hope that the field work might be com-
pleted before the winter set in.^
On the day on which this agreement was
SeieetioiioftheThird ^^^ched, Mr. Howell reported that from "the
good disposition manifest" in the discussions
between Mr. Barclay and himself as to their powers and duties
and as to the preliminaries, he was led to hope that they would
^ Mr. Sallivan to Mr. Pickering, Secretary of State, August 27, 1796, MSS.
Dept. of State.
•MSS. Dept. of State.
»Mr. Howell to Mr. Pickering, Secretary of State, August 27, 1796, MSS.
Dept. of State.
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14 INTERNATIONAL ARBITRATIONS.
be able "to agree ou a geutletnaii of respectability for the third
commissioner" without resorting to the alternative of a lotJ
On the 30th of August they agreed on Egbert Benson, whose
name was suggested by Mr. Howell at Boston in the preceding
June. "After a Weeks communication at Halifax," wrote Mr.
Barclay, "the American Commissioner and myself agreed in
the Choice of Egbert Benson of the City of New York Esq'
as the third Commissioner — A Gentleman of undoubted Ability
and Integrity, and who from being a near relation was brought
up in my fathers family. I found it impracticable for M'
Howell the American Oom"^ and myself ever to agree upon any
other person, and that unless I joined in the appointment of
Judge Benson, we must proceed to the unpleasant alternative
of balloting for a third Commissioner. To this I am extremely
averse, from a conviction that by this measure the question
would be decided rather by lott, than on its meiits — I was
convinced of the Justice of His Majestys Claim, and the
indisputable authorities that could be adduced to support it.—
To leave it therefore to a ballot, would be putting what I looked
on as a certainty in hazard, a game I by no means conceived
myself authorized to play. — It is true the American Commis-
sioner gave me the namesof twoor three Gentlemen in England,
one of whom he was willing should be oi)posed to M' Benson,
but these Gentlemen, I learned were warm minority men, and
I did not conceive it probable they would leave their pursuits
and cross the Atlantic, on such a question and under our
nomination. — Thus circumstanced I jtldged it most for His
Majestys interest to give up the only possible objection to
M' Benson, tliat of his being an American, under the hope of
having a cool, sensible, and dispassionate third Commissioner —
His future conduct I trust will prove the propriety of my
determination." ^
Mr. Benson, who was a native of New York and a graduate
of King's College, was at one time a judge of the supreme
court of New York, of which State he was the first attorney-
general. He was subsequently a judge of the circuit court of
the United States. That his appointment as third commis-
sioner was warmly approved by Mr. Sullivan, the agent of the
' Mr. HoweH to Mr. Pickering, Secretary of State, August 27, 1796, MSS.
Dept. of State.
«Rives'8 Correspondence of Thomas Barclay, 62,63.
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THE SAINT CROIX COMMISSION. 15
United States, is shown by the following letter to John Jay,
who was then governor of the State of New York:
" Halifax, 30th August^ 1796.
'' Sir : The controversy respecting that part of the boundary
between the United States and the Dominions of his Britannic
Majesty, which is on the river St. Croix, is now a matter of
some moment. The Commissioners have proceeded with that
good humor and candour on the subject which seemed to
promise a happy & amicable termination of the dispute. In-
stead of casting lots, they have taken the first idea of the
Treaty of November 1794, and have elected a third Commis-
sioner; Judge Benson is the only gentleman in whom they
could unite.
"They have sent him a commission by tliis conveyance, and
a vessel to bring him on. I earnestly hope that your Govern-
ment will allow him to attend upon it, and that all his friends
who wish the late Treaty wiih Great Britain to be carried into
effect in such a manner as to assure the peace and happiness
of our country will use their influence with him to accept the
api>ointment. A letter which I have written to him by this
conveyance will I believe satisfy him that the task will not
be so arduous as he may at first imagine. Should he decline
the i)roces8, the consequence will inevitably be, that two men
will be put in the box on whom no confidence will be placed
by the other side, tlie conse(]uence of which is easily seen
without any explanation. 1 am Sir with great respect,
" Your Excellency's most obedient and most humble servant,
"Jas. Sullivan.
" His Excellency Governor Jay."
After the selection of a third commissioner
^ar^*^OMQ^^*^ the agents proceeded to Passamaquoddy Bay
to institute the surveys. They were soon
followed by the two commissioners, who, in order to avoid
compelling the agents to atten<l at Halifax, adjourned to St.
Andrews, where they notified Mr. Benson to meet them on the
3d of October. On the 4th of October the three commissioners,
baving met at that place, were duly sworn, according to the
provisions of the treaty, before Robert Pagan, a justice of the
court of common pleas for the county. They then appointed
Edward Winslow, of Fredericton, New Brunswick, but formerly
of Plymouth, Massachusetts, as their secretary, and received
the memorials of the agents, Mr. Sullivan claiming the
Magagaadavic and Mr. Chipman the Schoodiac.
Digitized by LjOOQIC
16 INTERNATIONAL ARBITRATIONS.
"The 5th" [of October], says Mr. Barclay,
^^ca^ ^ ° "^® made au attempt to proceed up the River
Scoodiac claimed by the Agent of His Majesty
as the true St. Croix, but the Wind failing we were compelled
to return to St. Andrews; after which the board met, confirmed
the surveys commenced under the mutual agreement of the
Agents and taking the future operations of the surveyors under
our control established rules and orders for their direction and
government; ascertained their pay per day and that of the
chainmen and laborers under them &c. &c. On the 6th the
Commissioners attended by the Agents went to view the mouth
of the Eiver Magaguadavic claimed by the American Agent
as the St. Croix intended in the treaty of Peace and the Island
which he said had been named by the Sieur de Monts in 1604,
lifle de 8t. Croix, The 7th we had a view of the Isle de St.
Croix in the River Scoodiac as shown us by His Majestys
Agent with the small Island in its front and as much of the
River as he said he conceived necessary to be seen to evince
that the Islands and River corresponded with the description
given by L'Escarbot and Champlain french Historians, who
attended the Sieur de Monts in his Voyage to that part of
North America in 1604, and on our return we examined under
oath in the Evening a number of Indians produced on the part
of the united States — On the 8th the board established rules
and regulations for authenticating Records and other public
documents to be given in Evidence, with several other neces-
sary orders and resolutions, particularly one directing a survey
to be made of the bay of Passamaquoddy, the Islands therein,
the Brooks and Rivers that discharge themselves into it and
all the Mountains, high lands or head lands which present
themselves to view in proceeding up the bay to either of the
rivers in question, representing their Shapes and appearances
respectively as they make or appear in proceeding to and up
each of the Rivers in question.
" Having examined the Surveyors as to the probable period
when their surveys would be completed and finding they could
not be effected until late the next Autumn and the Agents
having stated by a joint memorial that it would be out of
their power to deliver in the Arguments on which their claims
were founded until they were possessed of these Surveys, the
board adjourned to the second Tuesday in August next, then
to meet at Boston in the State of Massachusetts for the pur-
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THE SAINT CROIX COMMISSION. 17
pose of examiniDg witnesses and to adjourn from thence to such
place as bis Majesty's agent should think necessary for exam-
ining any other witnesses he might wish to produce. The
weather from the 20th of September to the 8th of October was
so unfavorable as to prevent the Gentlemen employed from
ascertaining the longitude of the mouth of either of the Eivers
and the Season being far advanced we gave up the pursuit
until next Spring. The Surveyors will probably continue at
Work to the 10th of November, at all Events they will remain
in the field until driven in by Snow and extreme cold."^
Amory, in his Life of Sullivan, gives substantially the same
account of the proceedings at St. Andrews as Mr. Barclay.
He says that Howell and Sullivan explored by boat the rivers
claimed as the St. Groix. They found the western stream large
and navigable far up; the eastern small, and interrupted a few
miles up by falls. Indian chiefs came down the bay and con-
firmed the information obtained in 1764 as to the Magagua-
davic. Judge Benson arrived on September 25, and the whole
party explored together for ten days the bays, rivers, and
islands. In the River Schoodiac they visited an island which
answered the descriptions of L'Escarbot, Charlevoix, and other
French writers of the Isle de St. Croix, where De Monts passed
the winter of 1604. On this island they found the remains of
an old fortification.^
Mr. Sullivan, in a staten\eut as to the pro-
* ^fAffl*^"^^^* ceediugs of the commissioners published in
Boston in the spring of 1797, said it was de-
cided that the arguments of the agents should be in writing,
and that the argument of the agent of the United States
should be forwarded to the British agent by the 1st of Febru-
ary 1797. The arguments of the agents seem, however, to
have been delayed by the incompleteness of the surveys. In
concluding his statement Mr. Sullivan says: "Why shall not
all the nations on earth determine their disputes in this mode,
rather than choke the rivers with their carcasses, and stain the
soil of continents with their slain f The whole business has been
I)roceeded upon with great ease, candor, and good humor." '^
' Mr. Barclay to Lord Grenville, October 24, 1796, Rives's Correspondence
of Thomas Barclay, 65, 66.
' Amory *ft Life of Sullivan, I. 320 et seq.
» Amory's Life of Sullivan, L 325.
5627 2
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18 INTERNATIONAL ARBITRATIONS.
In July 1797 a party of Passamaqnoddy
eeting o mmia- ^j]j|gfg Q^bme to Boston to testily as to the tra-
ntm ftt BofltozL
ditional names of the rivers in dispute. The
commissioners, owing to the indisposition of Mr. Benson, were
a week late in assembling. They met at a building on Water
street, near Fort Hill.^ Their principal object in meeting at
Boston was to facilitate the examination of witnesses whose
testimony the agent of the United States desired to obtain.
Among these witnesses were President Adams and Governor
Jay.* It seems that Mr. Sullivan had represented to Mr. Chip-
man that the plenipotentiaries who signed the treaty of peace
of 1783, having Mitchell's map before them, intended as the
St. Croix the first river westward of the St. John ; and that not
only Mr. Adams and Mr. Jay, the surviving American pleni-
potentiaries, but also Mr. Hartley, the British plenipotentiary,
and Lord St. Helens, who was present at the negotiations as
Alleyne Fitzherbert, and Mr. Whitefoord, who was secretary
to the British commissioner at the negotiation of the prelimi-
nary treaty of peace, would attest the fact.^
On the 15th of August the commissioners
^*^dent°Ac^xM^*" proceeded to Quincy and took the deposition
of President Adams, but the purport of his
testimony was merely that the commissioners intended to
adopt the limits of Massachusetts Bay and the St. Croix River
mentioned in its charter, and that, while this river "was sup-
posed to be delineated on Mitchell's map," there was no under-
standing that the map was to be decisive. The text of the
deposition was as follows:
" John Adams, President of the United States of America,
appeared before the Board and (being sworn) was examined as
a witness to the following Interrogatories, viz: Interrogatories
by the Agent of the United States.
"1st. What Plan or Plans, Map or Maps, were before the
Commissioners, who formed the Treaty of Peace in 1783 between
His Britannic Majesty and The United States of America!
^^Ansicer. Mitchell's map was the only map or plan, which
was used by the Commissioners at their public Conferences,
though other maps were occasionally consulted by the Ameri-
can Commissioners at their lodgings.
> While the commissioners were in BoHton they attended a dinner to
Prenident Adams, at Faneuil Hall.
2 Mr. Barclay to Lord Grenville, September 8, 1797, Rivea's Correspond-
ence of Thomas Barclay, 73.
^ Rives's Correspondence of Thomas Barclay, 66.
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THE SAINT CROIX COMMISSION. 19
"2d. Whether any lines were marked at that time as desig-
nating the boondaries of The United States upon any, or upon
what mapf
^^Aiiswer. Lines were marked at that time as designating the
boundaries of The United States ui)on Mitchell's map.
"3rd. What Bivers were claimed to, or talked of, by the
Commissioners on either side^ as a proi>08ed boundary, and for
what reason?
^^Ansicer. The British Commissioners first claimed to Pis-
eataqua Kiver, then to Kennebec, then to Penobscot, and at
length to St. Croix, as marked on Mitcheirs map. One of the
American Ministers at first X)roposed the Kiver St. John's, as
marked on Mitchell's map, but his Colleagues, observing, that,
as St. Croix was the liiver mentioned in the charter of Mas-
sachusetts Bay, they could not justify insisting on St. John^s
as an ultimatum — he agreed with them to adhere to the chiirter
of Massachusetts Bay.
"4th. Whether a copy of a patent to Sir William Alexander,
or any Act of Parliament of Creat Britain were before the said
Commissioners at that time, or spoken of, or relied upon,
by the Commissioners on the part of His Britannic Majesty!
^^Ansvrer. It was very probable that the patent of King
James to Sir William Alexander, and that an act or acts of
Parliament might be produced and argued on, but I do not
recollect, at this time, any particular use that wivs made of
them. Nothing was ultimat^jly relied on, which interfered
with the Charter of Massachusetts Bay.
"r)th. Generally, what plans, documents, and papers were
before the said Commissioners, when the said Article of the
same Treaty was formed?
^^Ansicer, No other plan than MitchelFs map that I recol-
lect. Documents from tlie public offices in England were
brought over and laid before us; in answer to which we pro-
duced the memorials of Governor Shirley and Mr. , and
the counter memorials of the French Commis" at Paris, in
a printed quarto volume, a re]X)rt of Mr. Iluchinscni to the
General Court printed in a Journal of the Uouse of Repre-
sentatives, not many years from 1760, though I cannot now
recollect the precise year, and certain proceedings of (lovern-
ors Pownall and Bernard, recorded also in the Journals of the
House of Representatives, and the charter of Massachusetts.
" Gth. What were the lines claimed on each side and how
was the matter ultimately settled!
^^Annwer. Answered in part under the 3rd question. The
ultimate agreement was to adhere to the Charter of Massachu-
setts Bay and St. Croix River mentioned in it, which was sup-
posed to be delineated on Mitchell's map.
" 7th. Whether it was agreed to let the matter of boundary
between the State of Massachusetts and the Province of Nova
Scotia remain as the same had been conceived to be ?
^^Ansfver, Answered under the 3rd and Gth questions.
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20 INTERNATIONAL ARBITRATIONS.
^'Interrogatory by the Commissioners,
'* In explanation of your answer to the 3rd Interrogatory
proposed by the Agent on the part of the United States, do
you know whether it was understood, iutended or agreed,
between the British and American Commissioners, that the
River St. Croix as marked on Mitchell's map, should so be the
boundary as to preclude all inquiry respecting any error or
mistake in the said Map, in designating the River St. Croix!
Or was tliere any, if so, what understanding, intent, or agree-
ment, between the Commissioners relative to the ease of error
or mistake in the said Mai^T
'^ Answer. The case of such supx)08ed error or mistake was
not suggested, consequently, there was no understanding,
intent, or agreement expressed respecting it."
The Indians swore that there was a tradition
DepontionB of ^^^^^ ^^ ^^^^^ wiutered in the Schoodiae, but
Indians. '
erected a cross on the Magaguadavic, whicli
alone had been called the St. Croix. This statement was sub-
stantially the same as that made by Indian chiefs to Mitchell
in 1764. The British agent, after examining the affidavits
presented by the agent of the United States, agreed to their
being filed de bene esse, conceiving that they contained little or
nothing material to the issue. As to the use of Mitchell's
map by the plenipotentiaries who signed the treaty of peace,
and their alleged understanding touching the river intended
under the name of the St. Croix, the apprehensions created
by Mr. Sullivan in the minds of the British commissioner and
British agent were dispelled by the deposition of Mr. Adams,
as well as by a letter from Mr. Jay, who wrote in the same
sense as Mr. Adams testified.^ Subsequently Mr. Jay made
the following deposition :
"The answer of John Jay, who was one of
Deposition of Jay. the American Commissioners, by whom the
Treaty of Peace between Great Britain and
the United States was negotiated, to the interrogatories put
to him, at the instance of the Agent on the part of the United
States, by the Board of Commissioners for ascertaining the
River St. Croix, intended in and by the said Treaty.
"The said John Jay, having been duly sworn, answers and
says, — that, in the course of the said negotiations, difficulties
arose respecting the eastern extent of The United States; that
Mitchell's Map was before them, and was frequently consulted
for geographical information; that in settling the eastern
' Mr. Jay to Mr. Sullivan, July 28, 1797, Correspondence of John Jay,
IV. 228.
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THE SAINT CROIX COMMISSION. 21
boundary line (described in the Treaty), and of which the
River St. Croix forms a part, it became a question which of
the rivers in those parts was the true River St. Croix, it
being said that several of them had that name; that they did
finally agree, that the River St. Croix laid down in Mitchell's
Map, was the River St. Croix which ought to form a part of
the said boundary line. But whether that river was then so
decidedly and permanently adopted, and agreed upon by the
parties as conclusively to bind the two nations to that limit,
even in case it should afterwards appear that Mitchell had
been mistaken, and that the true River St. Croix was a dif-
ferent one from that which is delineated by that name on his
Map, was a question or case which he does not recollect nor
believe was then put or talked of.
* "By whom iu particular that Map was then produced, and
what other Maps, Charts and Documents of State were then
before the Commissioners at Paris, and whether the British
Commissioners then ])roduced or mentioned an Act of Parlia
ment respecting the boundaries of Massachusetts, are circum-
stances which his recollection does not enable him to ascer-
tain. It seems to him that certain lines were marked on the
copy of Mitchell's map, which was before them at Paris, but
whether the Map mentioned in the Interrogatory as now pro-
duced, is that copy, or whether the lines said to appear in it
are the same lines, he cannot without inspecting and examin-
ing it, undertake to judge.
"To the last interrogatory he answers, that for his own part
he was of opinion, that the easterly boundaries of the United
States ought, on principles of right and. justice to be the same
with the easterly boundaries of the late Colony or Province of
Massa(;busetts.
"Although much was said and reasoned on the subject, yet
he does not at this distance of time remember any particular
and explicit, declarations of the Parties to each other which
would authorize him to say that the part of the said line
(described in the Treaty) which is formed by the River St.
Croix, was mutually and clearly conceived and admitted to be
also a part of the eastern boundary line of Massachusetts.
" He doubts there having then been very clear conceptions
relative to the just and precise easterly extent of Massachu-
setts; for he has reason to believe, that respectable opinions
in America at that time considered the River St. John as the
proper eastern limit of The United States.
"John Jay.
"Sworn this 21st of May 1798 before me,
"Egbert Benson.''
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22 INTERNATIONAL ARBITRATIONS.
To complete the evidence of the American
Letter of FranUiiL commissioners of 1783, we print the following
letter from Franklin to Jefferson:
"Philadelphia, April 8th j 1790.
"Sir: I received your letter of the 31st past, relating to
encroachments made on the Eastern Limits of the United
States by settlers ander the British Government, pretending
that it is the Western and not the Eastern River of the bay
of Passamaquoddy, which was designated by the name of St.
Croix in the Treaty of Peace with that nation; and request-
ing of me to communicate any facts which my memory or
papers may enable me to recollect, & which may indicate the
true river the commissioners on both sides had in view, to
establish the boundary between the two nations. Your lettea*
found me under a severe fit of malady, which prevented my
answering it sooner, or attending indeed to any kind of busi-
ness. I can assure you that I am perfectly clear in the remem-
brance that the map we used in tracing the boundary was
brought to the Treaty by the Commissioners from England,
and that it was the same that was published by Mitchell above
20 years before. Having a copy of that map by me in loose
sheets, I send you that sheet which contains the bay of Pas-
samaquoddy, where you will see that part of the boundary
traced. I remember too that in that part of the boundary, we
relied much on the opinion of Mr. Adams, who had been con-
cerned in some former disputes concerning those territories.
I think therefore that you may obtain still further lights from
him. That the map we used was Mitchell's map. Congress
were acquainted at the time by a letter to their Secretary for
Foreign Affairs, which I suppose maybe found upon their files.^
" 1 have the honor to be with the greatest esteem and respect.
Sir, Your most obedient & most humble servt
"B. Franklin.
"Hon. T. Jefferson,
''Sec. of State:'
•The letter referred to by Krauklin as that by which CongreBS was
acqnaiuted that the plenipotentiaries used Mitcheirs map is a letter sent
by Adams, Franklin, and .lay to Livinjjston, Secretary of Foreij^n Affairs,
December 14, 17S2, in wliich they say: *^The map used in the course of
onr negotiations was Mitchell's." (Wharton's Dip. Cor. Am. Rev. VI.
133.) Mr. Sullivan, in a letter to Judge Parsons, referring to the deposi-
tions of Adams and Jay, said: '*Mr. Adams and Mr. Jay testify that
they were governed by Mitehell's map, lint add (strangely) that the
bounds of the charter of Massaehusctts were intended, when in fact the
charter of 1692 (sic) was bounded on the gnlf and river St. Lawrence.
All Nova Scotia was, by the eharter of William and Mary, a part of Mas-
sachusetts, and separated from it after the Treaty of Ryswick, in 1700, or
about that time. The letters and papers were mentioned and produce<l.
There have great difficulties resulted from that expression in these testi-
monies.'' (Amory's Life of Sullivan, I. 328.)
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THE SAINT CROIX COMMISSION. 23
While the commissioners were at Boston
^^'^OTto "pioofc'*' *^^ agents, besides submitting arguments, filed
numerous documentary proofs. Among the
documents presented by the agent of the United States was a
copy of Mitchell's map found in the office of the Secretary of
State of the United States, which was said to be the copy used
by the American plenipotentiaries at Paris and on which the
boundary was marked with a pen or pencil. Among the docu-
ments presented by the British agent were extracts from
Ohamplain and facsimiles of his maps. The American agent
objected to receiving these extracts and facsimiles, and de-
manded the production of the originals.*
After a session of several weeks the com-
oomp etenen o j^iggiQ^^pg adjourned to meet at Providence,
Khode Island, on the first Monday in June
1798. The reason for this adjournment was the fact that,
owing to unfavorable weather, the surveyors and astronomers
had been unable to complete their labors, and were still at
work. It was agreed that as soon as the surveys were com-
pleted a general map of all the rivers and of Passamaquoddy
Bay should be made by the surveyor-general of New Bruns-
wick, and that a copy of it should be delivered to each of the
agents to enable them to perfect their arguments and replies.^
It has been seen that the treaty required
Wngo t e t ^jj^ commissioners in their final declaration to
CrOiZ'g Sonroe. . , . , , . , , , , ,
particularize the latitude and longitude both
of the source and the mouth of the river which should be
decided to be the St. Croix. Owing to the delays in the field
work the commissioners while at Boston advised the agents
to recommend it to their governments to dispense with the
ascertainment of the latitude and longitude of the source.
They conceived that if the latitude and longitude of the mouth
were ascertained, "a minute description of the courses and
distances from thence to its source would completely answer
every purpose intended and identify the source beyond the
possibility of future doubt.'' ^ In accordance with this view
instructions were sent to Mr. King, the minister of the United
States at London, who on the 15th of March 1798 concluded
1 RiveH's Correspondence of ThomaH Barclay, 76.
«Ick 75.
»Mr. Barclay to Mr. LUton, May 2, 1798, KiveH's Correspondence of Thomas
Barclay, 80.
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24 INTERNATIONAL ARBITRATIONS.
with Lord Grenville an "explauatory article" by which it was
agreed that the commissioners, instead of particularizing the
latitude and longitude of the source, might describe the river
in such other manner as they might judge expedient; and it
was also agreed that, as soon as might be after the decision of
the commissioners was rendered, the two governments should
concert measures to erect and keep in repair a suitable monu-
ment at the place ascertained and described to be the source
of the River St. Oroix.^
^Notwithstanding the conclusion of this con-
Meeting of the Com- vention, the surveys which still remained to
miHion at Provi- ^^ executed were not completed in time for the
deuce.
reassembling of the commissioners in June.
This circumstance induced Mr. Sullivan to apply for a post-
ponement, and the meeting at Providence was finally deferred
till September. On the 22d of that month the argunients of
the agents, which were exceedingly voluminous, were closed,
but the maps compiled from the surveys by the surveyor-
general of New Brunswick did not reach Providence till the
15th of October. On that day the commissioners entered upon
the consideration of their decision, which was rendered on the
26th of October.'
The grounds of the decision are fully dis-
QueetioiiB DiBdused. closed in statements of the commissioners, as
well as in the correspondence and arguments
of the agents. There were four questions, more or less distinct,
which it was necessary to consider. These were: (1) The inten-
tion of the framers of the treaty of peace; (2) the historical
Kiver St. Croix; (3) the boundaries of Nova Scotia; (4) the ful-
fillment of the conditions of the treaty of peace, with which
the Eiver St. Croix was connected.
(1) As to the intention of the framers of
S«^*of Peaoe ^^^ treaty of peace, n#Tliing decisive was
ascertained. It has already been seen that
the depositions of Messrs. Adams and Jay, and the letter of
Franklin to Jefferson, contained nothing conclusive. It was
stated, and was not denied, that Mitchell's map was used by
the negotiators; but the answer of Adams and of Jay to the
question whether the liiver St. Croix as marked on that map
'Am. State PaperR, For. Rel. II. 183-185; TreatieK and Couveutions of
the United Staten, 1776-1887, p. 396.
' Kives's Correspondence of Thomas Barclay, 94.
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THE SAINT CROIX COMMISSION. 25
was so adopted as to preclude subsequent inquiry as to
whether it was the true St. Croix was that the question of
error in the map was not suggested. Both of them, and espe-
cially Adams, seemed to give paramount importance to tlie
easterly boundary of the province of Massachusetts Bay as
the controlling consideration with the negotiators. Though
Adams in his letter of October 25, 1784,^ adverted to the fact
of there being on Mitchell's map two rivers falling into the
unnamed body of water now known as Passamaquoddy Bay,
of which the St. Croix was the more eastern, neither he nor
Jay mentioned this circumstance in his deposition as one that
was considered in the negotiations.
(2) As to the historical St. Croix, the writ-
The ICfltorioal St. . ^ ^ i ^ rt -i i u.
^^ ings of the early French voyagers proved to
be decisive with the commissioners. Mr.
Howell at first, and till near the close of the arbitration, hehl
to the Magaguadavic, but before the close of the arguments
he fixed on the north branch of the Schoodiac as the St. Croix.^
The claim to the Magaguadavic as the true St. Croix rested
chiefly on Indian tradition. Tlie writings of Champlain left
no doubt that the island St. Croix on which De Monts wintered
in 1604 was one of the islands in the mouth of the Schoodiac.^
(3) It having been determined that the River
""JjJJ^^^' Schoodiac was the true St. Croix, it yet re-
mained to decide what constituted that river
above its mouth. It lias been seen that the Eiver Schoodiac
at some distance from its mouth divides into two branches, one
of which, proceeding north under the name of Chiputneticook,
opens out into a series of lakes, while the other, after proceed-
ing generally southwest, enters a tangled chain of waters cfilled
Schoodiac Lakes. The question arose as to which of these
two branches was the St. Croix, and, if either the one or the
other was taken, what was its source — whether where it first
entered a lake, or where the chain of lakes had its most remote
spring. In order to determine this question the British agent
appealed to the grant of Nova Scotia made by James I. to
Sir William Alexander in 1621. In this grant the Eiver St.
Croix is made the western boundary of ]Srova Scotia, "e^ ad
' Am. state Papers, For. Rel. I. 91.
« Amory's Life of SuUivan, I. 331.
^Ainory'e Life of Sallivau, I. 326; Rives's Correspondence of Thomas
Barclay, 75; Statement of Egbert Benson, infra, 33.
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26 INTERNATIONAL ARBITRATIONS.
scaturiginem remotissimam sive fontem ex occidentali parte qus-
dem qui se prunum predicto fluvio immiscet,'^^ or, in English, "to
the most remote spring or fountain from the western side
thereof which first mingles itself with the aforesaid river." The
iiiteri)retations of this clause differed. The British contended
that it meant the most western spring whose waters found
an outlet in the river. The Americans contended that it
meant not the most western spring, but the most remote
spring from the sea which found an outlet in the river from
its western side.^ The commissions of the governors of Nova
Scotia, however, from 1763, the date of its final cession by
France to Great Britain, did not use the language of Sir
William Alexander's grant, but described the boundary merely
as proceeding to the " source" of the River St. Croix. Kow, as
to what constituted the source of the river, the commissioners
differed. Mr. Howell contended that the Chiputneticook, as
the branch of superior magnitude, was the true continuation
o^the St. Croix. Mr. Barclay and Mr. Benson took the ground
that the continuation of the Schoodiac which formed the
western branch, and which had always retained the same
Indian name as the lower waters, was the real St. Croix; but
they differed in regard to its source. Mr. Barclay went for the
source to the most remote western spring of the tangled chain
of lakes. Mr. Benson, on the other hand, contended that the
word " source" meant a very different thing from "the most re-
mote spring or fountain" mentioned in Sir William Alexander's
grant ; that a chain of lakes could not be called a river, and that
he could not go beyond Lake Genesagaragum-siss, the first lake
into which the Schoodiac entered, for the St. Croix's source.*
Mr. Howell employed the same mode in arguing for the source
of the Chiputneticook in the first lake which it entered. "I had
labored from the first in our discussions," he says, "to prove
that the source of either branch must lie where it lodges itself
in waters of a different denomination. In this opinion we all
seemed at length to agree; they [Barclay and Benson] for the
issuing of the waters of the western branch out of the Lake
Genegenasarumsis (if I si>ell it rightly), and I for the issuing
of the north branch out of the^r*^ lake.^^^
1 The significance of these variant interpretations will be seen by refer-
ring to the map at tho beginning of Chapter IV. infra.
2 Mr. Barclay to Lord Grenville, November 10, 1798, Rives's Correspond-
ence of Thomas Barclay, 91.
*Mr. Howell to Mr. Pickering, Secretary of State, January 3, 1799,
Amory's Life of Sullivan, I. 331.
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THE SAINT CBOIX COMMISSION. 27
(4) The British agent and British commis-
Tr»»tr"f P * sioner found support for their claim to the
most remote western spring as the source of
the St. Croix iu the argument that this construction best ful-
filled the conditions of the treaty of i>eace with which the River
St. Croix was connected. JBy that treaty the boundary is de-
fined as proceeding "from the northwest angle of Nova S<!otia,
viz, that angle which is formed by a line drawn due north from
the source of St. Croix River to the Highlands; along the said
Highlands which divide those rivers that empty themselves
into the river St. Lawrence from those which fall into the
Atlantic Ocean." A line drawn due north from the source of
the Chipntneticook would, said the British representatives,
strike the highlands at a point where they divided rivers flow-
ing into the River St. Lawrence from rivers falling into the
Gulf of St. Lawrence or the Bay of Chaleurs. On the other
hand, a line drawn from the most northwestern spring that
found an outlet through the St. Croix — a spring not far from
the Penobscot — would strike highlands that fulfilled the con-
ditions of the treaty of peace, by dividing rivers emptying into
the River St. Lawrence from rivers falling into the Atlantic
Ocean.^ Such a line would, said the British agent, also leave
each party in the exclusive possession of tlie rivers rising
within its territory, with the single excei)rion of the River
St. John.* To this the agent of the United States replied tha'
as yet neither the northwest angle of Nova Scotia nor the
highlands had been ascertained and determined, and conse-
quently that nothing could be predicated of them.^
Finally, as Mr. Howell informs us, Mr. Bar-
Decmun of t e m- ^, came to Mr. Bensou on the western branch
of the Schoodiac, at the point where it enters
Lake Genesagaragum-siss. To this effect a declaration was
drawn up for the purpose of a decision;* but in this declara-
tion Mr. Howell refused to unite.'^ On the 23d of October,
' Rives's Correspondenro of Thomas Barclay, 68, 70.
« Am. State Papers, For. Rel. VI. 913-921.
^Appendix No. 2 to the Second British Statement before the King of the
Netherlands, under the convention of September 29, 1827.
^Am. State Papers, For. Rel. VI. 922.
^"The three Commissioners agroed that the Schoodiac is the St. Croix
truly intended, etc. The remaining question regarded the source only.
Mr. Benson and Mr. Barclay persued the south branch for the source and
Mr. Howell pernued the north. He very fortunately fixed himself at the
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28 INTERNATIONAL ARBITRATIONS.
however, Mr. Liston happened to come to Providence on his
way southward. He first met Mr. Sullivan, who informed him
of the state of the business, and later in the day he had a
conference with Mr. Chipman and Mr. Barclay, during a part
of which Mr. Sullivan was present. Before the conference
was over they all agreed, as a matter of negotiation and ac
commodation, to take the northernmost source of the Cbipnt-
neticook as the source of the St. Croix, Mr. Liston assuming
responsibility for this conclusion on the part of Great Britain.*
By this decision, which made the boundary run in a north-
westerly direction to the source of the St. Croix, the due
north line from that point ran 9 miles to the westward of the
British military post at Presque Isle, and intersected the River
St John 4 miles to the westward of the Grand Falls and 135
miles above Fredericton. A due north line from the eastern
end of Lake Genesagaraguui-siss, though it would have given
to (ireat Britain some territory to the west of the Chiputneti-
cook, would have intersected the St. John so as to leave the
military post at Presque Isle and the Grand Falls within the
United States. With Mr. Sullivan the prevailing considera
tion in taking a more westerly boundary from the source of
the St. Croix seems to have been to save grants of land which
plai'e where the river issues from the first lake on the south of a long chain
of lakes which lie in nearly a northwest course above it. This reduced
13euson to a situation not quite agreeable, for he not only went to the
south branch with Barclay alone, but he went through a great extent of
the country, if he went to the western lake. He therefore on the same
idea which held Howell to the place where the river is lost in the first
lake took his stand at the first lake on the south branch. Barclay came
to him there, perhaps to prevent his going back to Howell; they in fact
agreed to take a north line from the east end of that lake about nine miles
west of the forks, and crossing the first point of the north branch forming
a lino by point of compass from the Schoodiac south branch to the High-
lands; on this I applied to the English Agent and convinced him that
such a line would be no settlement of the controversy; but he said he
co'.ild not prevail on Barclay to give it up, unless he would assume the
respouHlbility of the measure, and though he was convinced that it was
for the interest of his nation to do it, yet he was afraid to interpose. I
conversed freely with Benson and he intimated that as the source was
rather a matter of accommodation he would yield in a great measure to
the other two where they were united. Thus we stood on the 22d instant
and a declaration was formed, not engrossed, for two of the commissioners
to sign." (Mr. Sullivan to Mr. Pickering, Secretary of s^tate, October 25,
1798, MSS. Dept. of State.)
^ Rives's Correspondence of Thomas Barclay, 89.
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THE SAINT CROIX COMMISSION. 29
had been made to individuals by the State of Massachusetts
southward of that point, in the region just west of the Chiput-
neticook.^ The country to the north was as yet for the most
part practically unexplored, and little value was attached to
it as compared with the region nearer the sea. Moreover, it
was by both sides deemed advantageous to secure as long a
line as x)os8ible of natural boundary.*
The declaration of the commissioners is as follows: ^
"Declaration of the Commissioners under
Declaration. the Fifth Article of the Treaty of 1 794, between
the United States and Great Britain, respect-
ing the true Eiver St. Croix, by Thomas Barclay, David Howell
and Egbert Benson, Commissioners appointed in pursuance of
the oth Article of the Treaty of Amity, Commerce, and Navi-
gation, between His Britannic Majesty and the United States
of America, finally to*decide the question, ' What River was
1 Rives's Correspondence of Thomas Barclay, 87, 88 ; Amory's Life of
Sallivan, I. 330, 332.
* Mr. Howell, in a letter to Mr. Pickering, Secretary of State, of Janu-
ary 3, 1799, referring to the condition of things just prior to the arrival
of Mr. Liston, says: " While things were in this posture, something like a
negotiation, started by Judge Sullivan, and, I believe, assented to by Mr.
Liston * * * carried them to the north branch, and induced me to
agree with them in our final result; to induce me to which. Judge Sullivan
read to me your letters to him, in which you contended that the source of
a river must be at the most remote waters which flow in [to] it. It must
be allowed that there is room for debate and for a diversity of opinion on
this question, >vhether the source of the north branch is the first lake, or
where we have flxed it. I consider it as a fortunate circumstance that all
the claims of individuals are quieted; and the satisfaction expressed by
both agents gave reason to hope that the parties more immediately inter-
ested would readily acquiesce in our result." (Amory's Life of Sullivan,
L332.)
"Mr. Howell declined being a party to the declaration until it was en-
grossed and ready for execution. He then reluctantly directed his name
to be inserted in the Declaration, which he eventually signed. « * «
By the present decision all grants under the Crown are secured. The
mast country preserved and about nine-tenths of the Lands in dispute
confirmed to the King; in addition to all which the Chiputuatecook put-
ting the Grant of Alexander out of the Question, is beyond all doubt the
principal feeder of the River St. Croix, and of course the Branch on which
the Source is to be found and from its direct course an infinitely prefera-
ble national boundary to the upper part of the Scoudiac.'' (Mr. Barclay
to Lord Grenville, November 10, 1798, Rives's Correspondence of Thomas
Barclay, 93.)
' MSS. Dept. of state. The declaration has been printed, but not with
entire accuracy, in Am. State Papers, For. Rel. VI. 921, and elsewhere.
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30 INTERNATIONAL ARBITRATIONS.
truly intended under the name of the lliver Saint Croix men-
tioned in the treaty of Peace between llis Majesty and the
United States, and forming a part of the boundary therein
described.'
"DECLARATION.
"We, the said Commissioners, having been sworn 'impar-
tially to examine and decide the said question, according to
such evidence as should respectively be laid before us, on the
part of the British (lovernment, and of the United States,' and
having heard the evidence which hath been laid before us, by
the Agent of His Majesty, and the Agent of the United States,
respectively appointed and authorized to manage the business
on behalf of the respective Governments, have decided, and
hereby do decide, the liiver, hereinafter particularly described
and mentioned, to be the River truly intended under the name
of the River Saint Croix, in the said Treaty of Peace, and
forming a i)art of the boundary therein described; that is to
say, the mouth of the said river is in Passamaquoddy Bay, at
a point of land called «]oe's Point,' about one mile northward
from the northern part of Saint Andrew's Island, and in the
latitude of forty-live degrees five minutes and five seconds
north, and in the longitude of sixty-seven degrees twelve
minutes and thirty seconds west, from the Royal Observatory
at Greenwich, in Great Britain, and tliree degrees fifly-four
minutes an<i fifteen seconds east from Harvard College, in the
University of Cambridge, in the State of Massachusetts, and
the course of the said river up from its said mouth, is northerly
to a point of land called the Devil's Head, then turning the
said point, is westerly to where it divides into two streams, the.
one coming from the westward, and the other coming from
the northward, having the Indian name of Chiputnaticook or
Chibuitcook, as the same may be variously spelt, then up the
said stream, so coming from the northward to its source, which
is at a stake near a Yellow Birch Tree, hooped with iron, and
marked S. T. and J. H. 1797, by Samuel Titcomb and John
Harris, the Surveyors employed to survey the above mentioned
stream, coming from the northward. And the said River is
designated on the Map hereunto annexed, and hereby referred
to as farther descriptive of it, by the letters A B C D E F G
H I K and L, the letter A being at its said mouth, and the
letter L being at its said source; and the course and distance
of the said source from the Island, at the confluence of the
above-mentioned two streams, is, as laid down on the said
map, north five degrees and about fifteen minutes west, by
the magnet, about forty-eight miles and one quarter.
"In testimony whereof, we have hereunto set our hands and
seals, at Providence, in the State of Rhode Island, the twenty-
^This is **Ive'» Point'' in some of the copies of the award, but in the
original it is properly given as Joe s Point.
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I
i Digitized by VjOOQ IC
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a
[l. S.l
u
L. S.
u
L. S.
THE SAINT CROIX COMMISSION. 31
flftli day of October, in the year one thoasaud seven handred
and uinety -eight.
Thomas Barclay,
David Howell,
Egbert Benson.
"Witness, Ed. WiNSLOW,
" Secretary to the Commissioners.^^
On the day on which the declaration was
^^^^'^^^ executed, Mr. Sullivan made the following
report of his agency : *
" Providence J25th Octr. 1798.
" Sir: The decisive declaration of the Commissioners is now
executed and delivered to me fixing the river Schoodiac as St.
Croix and the most remote wsiter of the Chaputnaticook or
north branch for its source. 1 shall forward it with eight vol-
umes containing the joui*nals and arguments in tlie cause. I
shall also forward at the same time the accounts vouchers and
the books you procured for me. 1 should go on myself but my
health is so much affected with toil and anxiety that I could
not endure the journey. I hope ray son will undertake it for
me. The enclosed schedule will show you what the expenses
have amounted to and to which there is yet some items to be
added before the Commissioners separate. By this you will see
that I have paid and there has been allowed. .... $15, 559. 33
I am ordered to pay 4, 244. 59
Making in whole 19, 803. 92
"There is my private account yet to be added for advances
inobtainingevidence assistance in copying maps, arguments&c.
*' I shall therefore pursuant to your directions in your last
letter draw on you for five or six thousand dollars and procure
the money at the bank.*
1 MSS. Dept. of Stat«. In a letter to Mr. Sullivan of June 22, 1796, Mr.
Pickering said that Mr. Hazard, of Philadelphia, had mentioned some
French books relating to the contestation of the St. Croix between the
English and the French in 1750-1753, when Governor Shirley, of Massa-
chusetts, went to Paris as one of the commissioners. The books were en-
titled ''Memoires des Commissaires du Koi et de ceux de sa Majosto
Britannique sur les possessions et les droits respectifs des deux conronnes
en Am^riqne, avec les actes publics et pieces jastificatives." (MS. Dom.
Let. IX. 174.) June 25, Mr. Pickering wrote again, saying that the books,
on examination, appeared to relate chiefly to ''Acadie, according to its
ancient Limits." (Id. 186.) July 23, 1796, he sent the books to Mr. Sul-
livan, together with ''a memoir of Dr. WiUiam Smith concerning the
River St. Croix." (Id. 228.)
> Congress by an act of March 19, 1798 (1 Stats, at L. 545), appropriated
$12,(X)0to defray ''the extraordinary expenses of ascertaining the River
St. Croix." By an act of March 2, 1799, the sum of $25,000 was appropriated
for ** farther expenses" in carrying the treaty into effect. (1 Stats, at L. 723. )
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32 INTERNATIONAL ARBITRATIONS.
" I have macb regretted that this was not settled by nego-
ciatioii in order to save expense; but am now convinced that
no uegociation could have brought the English Government
east of the west lake of the Scoodiac south branch. The ex-
penses could not have been lessened otherwise than by omit-
ting the survey of the Megaguadavit but that would have been
the giving up a cause or rather a point in the cause in which
the Government of Massachusetts has been perseveriugly zeal-
ous. The expense attending that survey is not an object, and
indeed the whole expense is not more than has usually hap-
I)ened in the controversy of Provincial or State lines.
'' I have the honor to be with all respect, your most humble
serv^,
'* Jas. Sullivan.
'« llouble. Mr. PiCKERiNa,
" Secretary of State.^
(P. S.) ^' There is yet perhaps a matter not compleatly settled.
hy the treaty the United States are bounded east on the river
St. Croix. The commissioners have fixed the mouth of the river
at St. Andrews point. If the bay of Passamaquoddy is not con-
sidered as sea a negociation may be yet necessary. You will
see in the journal when it reaches you that I filed a memorial
urging the Commissioners to fix the mouth between Deer &
Moose Islands or between Deer Island and State point in the
Bay of Fundy, but they declined it under an idea that unless
Passamaquoddy was a section of the bay of Fundy the St.
Croix had no mouth in that Bay."
Mr. Benson made an elaborate report to the
^^el^n * President of the United States, a copy of which
is printed as Appendix XXXVI. to the defini-
tive statement of Messrs. Gallatin and Preble, submitted to
the King of the IN^etherlands as arbitrator under the convention
between the United States and Great Britain of September
29, 1827. Subsequently Mr. Benson presented a copy of his
report, somewhat revised, to the Massachusetts Historical
Society, in whose records (October, 1887) it is published, with
comments by Mr. Justin Winsor, who brought it to the society's
attention. But while the report is in some respects improved
by the revision, one interesting passage in the original, show-
ing the principle on which Benson adopted the compromise ais
to the source of the St. Croix, is omitted. The present reprint
is from a duplicate original among the i)apers presented by the
editor of the correspondence of Thomas Barclay to the Maine
Historical Society.
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THE SAINT CROIX COMMISSION. 33
"REPORT
Made to the President of the United States of America^ by Egbert
Benson^ Esquire^ one of the Commissioners appointed pursuant
to the fifth Article of the treaty of Amity ^ Commerce and Nav-
igation^ between His Britannic Majesty and the said States^
respecting the Proceedings of the said Commissioners,
"On the Qtwstion between his Britannic Majesty and the
United States of America, <what Kiver was truly intended
under the name of the River 8aint Croix,' mentioned in the
Treaty of Peace of the 3d November, 1783, and forming a part
of the boundary therein described, referred to the final deci-
sion of Commissioners by the fifth Article of the Treaty of
Amity, Commerce and Navigation, of the 19th November,
1704, the Scudia^was claimed on the part of his Majesty, and
the MagagtMMUivic on the part of the IJnited States. Bounda-
ries of the United States described in the treaty of peace,
' from the Northwest angle of Nova Scotia, viz* that angle
which is formed by a line drawn due North from the source of
Saint Croix River to the Highlands, along the said Highlands
which divide those rivers that empty themselves into the Eiver
Saint Lawrence from those which fall into the Atlantic Ocean,'
then follow the northern, western, and southern boundaries,
and then *east by a line to be drawn along the middle of the
River Saint Croix from its mouth in the Bay of Fundy to its
source, and from its source, directly north to the aforesaid
Highlands which divide the Rivers that fall into the Atlantic
Ocean from those which fall into the Eiver Saint Lawrence.'
" Boundaries in the Grant for Nova Scotia, by King James
to Sir William Alexander, of the 10th September, 1621, trans-
lated from the Latin — * All and singular, the lands, continents,
and Islands, situate and lying in America, within the heacl
land or promontory called Cape 8able, lying near the Latitude
of forty three degrees, or thereabout, from the Equinoctial
line towards the North, from which promontory stretching to-
wards the shore of the sea by the west, to a bay commonly
called 8t Mary^s Bay^ and then towards the North by a direct
line, passing the Entrance or mouth of that Great Bay, which
runs into the Eastern Quarter between the Territories of the
Souriquois and Etchemins, to a River commonly called by the
Name of St. Croix, and to the most remote Spring or Fountain
thereof from the Western Quarter which first mingles itself
with the aforesaid Kiver, thence by an imaginary direct line,
which may be conceived to go through the Land, or Run to
wards the North to the nearest Bay, River or spring, discharg-
ing itself in the Great River of Canada, &c. &c. which certain
lands shall in all future times enjoy the name of Nova Scotia
in America.'
^ " It is here to be noted, that on the Conquest of Canada^
56?7 3
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34 INTERNATIONAL ARBITRATIONS.
and the final cession of that Country to the Crown of Great
Britain in 17G3, the Highlands abovementione<l and referred to,
were established as a Southern boundary of the Colony of
Quebec; that JS^ova Scotia hath accordingly from that time
hitherto been described in the Commissions to the Governors,
* as bounded on the Westward by a line drawn from Cape
Sable across the Entrance of the Bay of Fundy to the mouth
of the River Saint Cmix, by the said River to its source, and
by a line drawn due North from thence to the Southern
Boundary of the Colony of Quebec; to the Northward, by the
said Boundary, &c. &c. &c.' — That from the description in the
Commissions it appears a construction had been given to an
evident ambiguity in the Grant for Nova Scotia, in respect to
the source of the River Saint Croix, and the course of the line
from it; and hence it is, that at the time of the Treaty of
Peace, the Highlands, instead of the River Saint Lawrence,
formed the north side, and a line directly to, or du^ North, the
West side of the North- West angle of Nova Scotia, and that
the Source of the River Saint Croix, from which the line was
to run, or be drawn, was the Source generally^ or that source
which should be found to be eminently or emphatically so re-
gardless of the position of it, or the place or qvarter where it
might be, or the distance, when compared with any other source
before the waters from it mingled themselves with the River.
"A River being expressed in the Treaty, the Instrument, and
it not being expressed as it is, either by mistake ov fraud, the
River so expressed must be adjudged to be the River intended.
This is assumed as unquestionable; the River is expressed to
be 'That River, a line drawn due North from the Source of
which forms the West side of the ^^orf/t-West angle of Nova
Scotia.' The identity of the River Saint Croix expressed in
the Treaty, and the River Saint Croix expressed in the Grant
for Nova Scotia, is assumed as also unquestionable; so that
the River to be sought for, is the River intended in the Grant.
The two following i)ropositions, are therefore stated, and the
proofs subjoined — 1st. That the River intended under the name
of the River Saint Croix, in the Grant for Nova Scotia, is the
River which was feo named by the Sieur De Monts, 1604. And
2ndly. That the Scudiac is the River which was then so
named. ^
' In tbo revised version of Benson's report in the records of the Massa-
chusettvS Historical Society tills ])aragraph is as follows : '* It is now to be
stated that the River is descrihed or expresned in the Treaty of 1783, as
*that River a 7-t'He drawn due north from the Source of which forms the
west side of the north tvest Angle of Nova Scotia;' and that the following
Points arc assumed as being nnqucstionable. 1** That tht^ River was not
expressed as it is. either by Mistake or Fraud — 2'*'y Thnt the River expressed
must therefore ho adjudged to be the River intended — S'^'y That the River
expressed in the Treaty of 1783, and the River expressed in the Grant of
Nova Scotia, are the same River; and 4^'''y That consequently, the River,
to be sought for, must be the River intended in the Grant; the following
Proposition of Fact is therefore advanced, an<l the Proofs subjoined, viz*,
That tlic Freucli colonists, in 1604, named a certain hlandj lying in what
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THE SAINT CROIX COMMISSION. 35
<^ Extracts from a pablication by Sir William Alexander, in
London, 1624, nnder the Title of encourcbgement to Colonies,
' Monsieur De Montes, procuring a Patent from King Henry
the Fourth, of Canada from the 40*'' degree Eastward, com-
prehending all the bounds that now is between Kew England,
and New Scotland (after that Queen Elizabeth had formerly
given one thereof, as belonging to this Crown by Chabot's dis-
coverie,) did set forth with a hundred persons fitted for a plan-
tation, carried in two Ships.' After a brief relation of the
voyage from France to Port Royal, he proceeds, * After this,
having seen Port Royal, they went to the River called by them
Sante Croix, but more fit now to be called Tweede, because it
divides New England from New Scotland, bounding the one of
them upon the East and the other upon the West side thereof;
here they made choice of an isle that is within the middle of
the same, where to Winter, building Houses sufficient to lodge
their number.' He concludes his relation by mentioning —
'That in the end, finding that a little Isle was but a large
prison, they resolved to return unto Port Royal.' Speaking
of the limits of his Patent, he says — ' leaving the limits to be
appointed by his Majesty's pleasure, which are expressed in
the Patent granted unto me under his great Scale of his King-
dom of Scotland, marching upon the West towards the River
of St. Croix, now Tweed, (where the Frenchmen did designe
their first habitation) with New England, and on all other
parts it is compassed by the Ocean and the great river of
Canada.' To this publication a Map is annexed, in which a
River is laid down under the name of TtceedCj as a boundary
between New England and New Scotland, and doubtless in-
tended to represent the Saint Croix. The Voyage of De Monts
above referred to by Sir William Alexander, was in the Spring
of 1604, and has been written by two different cotemporary per-
sons, Champlain, who was with him, and Lescarhot^ who came
out to VAcadie in 1606, with Poutrincourt^ the Successor of
De Monts in the attempt to settle, and was himself the next
year at St Croix. The British Commissaries, in the Memorials
between them and the French Commissaries, concerning the
limits of Nova Scotia or Acadia, printed in London in 1755,
say, — 'The most ancient Chart extant, of this Country, is that
which Escarbot published with his History in 1609.' And a
book published in London that Year by P, Erondelle^ under the
title of Nova Francia, cfeo. translated out of the French into Eng-
lish^ is evidently a translation of this first Edition of IP Escarbot,
Champlain published in 1613. From these writers, therefore,
undoubtedly Sir William Alexander obtained his information
of the Voyage of De Monts, and of the country. They relate
is properly an Am^ of the Bay of Passamaq noddy, but by them considered,
aud accordingly denomiuatt'd River ^ thelHland of St. Croix; that the Name
was almost instanih/ applied indiHcriminatelff as well to the Hirer as to the
Island; that the /^itvris the same River intended nnder that Name in the
Grant for Nova Scotia; and when distini^uished by it's supposed Indian
^ame, and b^ wbicb it is moru generally known, is called the JScudia^,''
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36 INTERNATIONAL ARBITRATIONS.
that De Monts, after visiting several places on the Eastern
Shore of the Bay of Fundy, and among them the Bay of Saint
Mary and Port Royal, came, on the 24"» June, to the River
Saint John; and the following Extracts from them, contain
the voyage thence, and other subsequent Transactions mate-
rial in the present enquiry.
^'Champlain, Edit. 1613. *From the River Saint John we
were at four Islands, on one of which we were ashore, and there
found a great abundance of Birds called Margos, of which we
took a number of Young ones, as good as Young pigeons. The
Sieur Poutrincourt was near losing himself there, but finally re-
turned to our bark, as we were going to search for him round the
Island, which is three leagues distant from the main land.
Further to the west, there are other Islands, one containing six
leagues, called by the savages Manthane, to the South of which
there are, among the Islands, many good ports for Vessels.
From the Isles of Margos we were at a River in the main land,
which is called the River of the Etcliemins, a Nation of Savages
80 named in their own Country ; and we passed by a great num-
ber of Islands, more than we could count, pleasant enough,
containing some two Leagues, others three, others more or less.
All these Islands are in a Bay which contains, in my judgment,
more than 15 leagues in circumference, in which there are a
number of convenient places to put as great a number of Ves-
sels as one pleases, which in their Season abound in fish, such
as God, Salmon, Bass, Herrings, Haitans, and other fish in
great numbers. Making West North West through these
Islands, we entered into a Large River which is almost half
a league broad at its entranwe, where having made a league or
two, we found tuo Islunds, the one very smallj near the shore
on the Westj the other in the Middle, which may have eight or
nine hundred paces in circumference : The banks of which are
Rocky, and three or four Toises high, except a small place, a
point of Sand and Clay which may serve to make bricks and
other Necessary things. There is another sheltered place to
put Vessels, from eighty to one hundred tons^ but it is dry at Low
Water. The Island is filled with Firs, Birches, Maples and
Oaks, — of itself, it is in a good situation, and there is only one
side where it slopes about forty paces, which is easy to be
fortified; the Shores of the Main land, being distant on each
side about nine hundred or a thousand paces. Vessels cannot
j)as8 on the River but at the mercy of the Cannon on the Island,
which is the place we judged best, as well for the situation,
the goodness of the Country, as for the communication we pro-
posed to have with the savages of the Coasts, and the interior
Country, being in the midst of them. This place is named by
the name of the Island Saint Croix. Passing higher up, one sees
a great Bay, in which there are two Islands, one high, the other
low; and three Rivers, tico of a middling size, one going off
towards the East, and the other to the North, and the thinl is
large^ which goes to the West, This is that of the Etchemins^
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THE SAINT CROIX COMMISSION. 37
of which we have spoken above; going into it two leagues
there is a, fall of water, where the Savages carry their Canoes
by Land, about five hundred paces, afterwards re-entering it,
from which afterwards, crossing over a small space of Land,
one goes into tlie liiver Norembeque and of Saint John.
"*ln this place of the Fall, which the Vessels cannot pass,
because there is nothing but Rocks, and that there is not more
than four or five feet Water in May and June, they take as
great abundance of Bass and herring, as they can lade in their
Vessels. The Soil is very fine, and there are about fifteen or
twenty acres of Land cleared, where the Sieur de Monts sowed
some grain, which came up very well. The Savages stay here
sometimes five or six weeks during the fishing Season. All
the rest of the Country is a very thick forest. If the land was
cleared, grain would grow there very well. This place is forty
five degrees and one third of Latitude, and the Variation of the
Magnetic needle is seventeen degrees and thirty two minutes.
Not having found a place more fit than this Island, we began
to make a barri(;ade on a small Island, a little separated from
the Island, which served as a platform for our cannon. Every
one employed himself so faithfully, that in a little time it was
rendered a defence; then the Sieur de Monts began to employ
the workmen to build the houses for our abode. After the
Sieur de Monts had taken the place for the Magazine, which
was nine toises long and three broad, and twelve feet high, he
fixed on the plan of his own lodging, which was immediately
built by good workmen. He then assigned to each his place.'
* We then made some gardens as well on the main land as on
the Island.'
*"The Sieur de Mons determined on a change of place, and
to make another habitation to avoid the cold, and evils which
we had in the Island St. Croix, Kot having found any port
which was projier for us then, and the little time we had to lodge
ourselves, and to build houses for that purpose, we caused two
Barks to be equipped, on which was hiden the Carpenters'
Work of the Houses of Saint Croix, to be carried to Port Koyal,
twenty five leagues from thence,'Where we judged an abode
would be more mild and temperate.' In his Edition of 1632,
after the above passage, where he mentions the Latitude and
Variation of the needle, he adds, 'In this place was the habi-
tation made in 1604.' — And then immediately commences
another chapter as follows —
" * Fi'om the said River St. Croix, continuing along the coast,
making 25 Leagues,' we passed by agreat numberof Islands, &c.
*<L'Escarbot Edition, 1618. — 'Leaving the Kiver Saint John,
they came following the Coast, at twenty leagues from thence,
in a great River (which is properly sea) where they encamped
in a small Island, in the middle of it« which being found strong
by nature and of easy defence, besides that the season had
begun to pass, and therefore it became them to think how they
were to be Lodged without going further, they resolved to stay
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38 INTERNATIONAL ARBITRATIONS.
there/ — 'The Company staid there in the middle of a Large
Uiver, where the wind from the North and Korth-West blows
at pleasure, and because at two leagues above there are some
streams, which coming crosswise do discharge themselves into
this large arm of the Sea. This Island, the Ketreat of these
French, was called Sainte Croix, twenty- five leagues more dis-
tant than port Eoyal.' * Before we speak of the return of the
ships to France, it becomes us to say that the Island of Saint
Croix is very difficult to be found by one who has never been
there: for there are so many Islands and great Bays to pass
before one comes there, that I am astonished how anyone had
the patience to penetrate so far to go to find it. There are three
ovfour mountains high above the others on the Coasts, but on
the North part from where the River comes down, there is a
pointed one more than two leagues distant. The woods of the
Main land are handsome and high to admiration and so is the
herbage; there are streams of Fresh Water very agreeable,
where many of the people of the Sieur de Monts did their
work and hutted there. As to the nature of the Soil, it is very
good, and happily fruitfull; for the Sieur de Monts, having
caused a piece of land to be cultivated and sown with Eye, (£
have not seen any wheat there) he had not the means to attend
to its maturity to gather it, the grain which fell, had notwith-
standing grown and shot up again wonderfully, so that two
years after we gathered of it as fair, large and heavy as any in
France, and which this soil has produced without culture, and
at present it continues to increase every Year; the said Island
is about half a french League in circuit, and at the end towards
the sea there is a Hillock, and as it were a separate small
island where the said Sieur de Monts placed his cannon; and
there is also a small chapel built in the fashion of the savages,
at the foot of which there are so many muscles as to be won-
derfull, which may be gathered at low water; but they are
small.
" * During the said voyage, the Sieur de Monts worked at his
fort, which he had seated at the End of the Island opposite
the place where we have said he lodged his Cannon, whicli was
prudently considered, to the end to command the River up and
down ; but there was one inconvenience that the said Fort was
on the side to the North without any shelter except the trees
which were on the Bank of the island, all of which thereabout
he had forbid to be cut down. Without the Fort the Swiss
had their Barracks, whicli were large and ample, and some
small ones making an appearance like a suburb; some had their
huts on the main Land, near the Stream, but within the Fort
were the Lodgings of the said Sieur de Monts, made of fair
and SkilfuU carpentry with the banner of France on the Top.
In another Part was the Magazine, where was deposited the
the safety and life of all; also of good carpentry and covered
with shingles, and opposite \a) the Magazine were the Lodgings,
and Houses of the Sieur DPOrville Champlain, Champdore^ and
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THE SAINT CROIX COMMISSION. 39
other persons of distinction; opposite to the Lodgings of the
said Sieur de Monts was a covered gallery, to exercise for
ainaseinent, or for the Workmen when it rained; and between
the said Fort and the Platform of the Cannon, all was tilled with
Gardens. The Severe season being passed, the Sieur de
Monts, tired of his sorrowful abode of Saiute Croix, deter-
mined to search for another Port in a Country more warm and
more to the south. Having seen the Coast of Malatarre, and
with much labour, without finding what he desired, he deter-
mined to go to Port Royal, to make his stay there, and wait
untill he should have the means to make a more ample discov-
ery : So everyone was employed to bind up his pack, and they
demolished what they had built with infinity of labour, except
the Magazine, which was too large to be transported.'
*^ Subsequent to the View of the mouths of the Rivers in
question, and the adjacent Objects, by the Commissioners, at
the instance of the Agents, in the Fall of 1796, the Edition of
Champlain^ of 1613, was procured from Europe, containing a
Map of the Isle tiainte Croix, a copy of which is hereunto an-
nexed, and a Search having been then made by digging into the
Soil on the Island called Honey or DociaSj Island, Bricks, char-
coal, spikeK, and other artificial articles have been found, and
evident foundations of buildings have been traced. Whoever
will compare these proofs with the Bay of Passamaquady,
including the Islands and Rivers in it, will perceive that they
result in demonstration that the Island St. Croix, and the River
Saint Croix, intended by them, are respectively Bone Island,
and the River Scudiac, comprehending in the latter the arm of
the Bay, or as it is expressed by L'Escarbot, Sea^ between where
the mouth of the River has been decided to be, at Joe's Point,
and where it turns to the westward at the Devils headj as being
at the time when the name of Saint Croix was originally given
to the Scudiac, then actually, however improperly, conceived to
be a portion of it and accordingly denominated River; and
here it would seem that there would have been an end of the
Question. But the Agent on the Part of the United States
stated *that Mitchells Map published, in 1755, was before the
Commissioners who negotiated and concluded the provisional
Treaty of Peace at Paris in 1782; from that they took their
Ideas of the country, upon that they marked the dividing line
between the two nations, and by the line marked upon it their
intention is well explained, that the River intended by the
Name of the Saint Croix, in the Treaty, was the Eastern River
which empties its waters into the Bay of Passamaquady.'
"And he thereupon offered in Evidence the Testimony of
the Three American Commissioners, as contained in the follow-
ing depositions of two of them, and letter from the other, to
Mr. Secretary Jefferson, of the 8th of April, 1790, and also a
Map of Mitchell, as the Identical Copy which the Commis-
sioners had before them at Paris, having been found deposited
in the Office of Secretary of State for the United States, and
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40 INTERNATIONAL ARBITRATIONS.
having the Eastern Boundary of the United States, traced on
it with a pen or pencil, through the middle of the Kiver Saint
Croix, as laid down on the Map, to its source, and continued
thence Korth, as far as to where most probably it was sup-
posed by whoever it was done. The highlands mentioned in
the treaty are — ^
^'President Adams^ Deposition.
" ^ Mitchells Map was the only map or plan which was used
by the Commissioners at their public conferences, tho' other
Maps were occasionally consulted by the American Commis-
sioners, at their Lodgings; the British Commissioners at first
claimea to Piscataqua Eiver, then to KeDnebeck,then to Penob-
scot, and at length agreed to Saint GroiXj as marked on Mitch-
ells map, one of the American Ministers at first proposed the
Eiver Saint Johns, as marked on Mitchells map; but his col-
leagues observing that as Saint Crotj? was the River mentioned
in the Charter of Massachusetts Bay they could not justify
insisting on Saint Johns, as an ultimatum, he agreed with them
to adhere to the Charter of Massachusetts Bay; but whether
it was understood, intended, or agreed between the British and
American Commissioners, that the Eiver Saint Crour, as marked
on Mitchells map, should so be the boundary as to preclude all
enquiry respecting any Error or mistake in the said Map, in
designating the Eiver Saint Croix, or whether there was any,
and if so, what understanding, intent, or agreement between
the Commissioners relative to the case of Error or mistake in
this respect, in the said Map, that the case of such supposed
error, or mistake, was not suggested, and consequently there
was no understanding, intent or agreement expressed Respect-
ing it.'
" Governor Jay^s Deposition,
^^ <In the course of the negotiations, difficulties arose respect-
ing the Eastern boundary of the United States. Mitchells
map was before them, and frequently consulted for Geographical
information. In settling the boundary lines (described in the
Treaty) and of which the River Saint Croix forms a part, it
became a question, which of the Eivers in those x>arts was the
true Eiver Saint Croix, it being said that several of them bad
that name. They did finally agree that the River St. Croix
laid down in Mitchells Map, was the Eiver Saint Croix which
ought to form a part of the said boundary line; but whether
that Eiver was so decidedly and permanently adopted and
agreed upon by the parties as conclusively to bind the two
'This Bentence is incomplete in the original, just as is here indicated,
and it was so printed by Gallatin sind Preble without comment. Obviously
a blundering scrivener, in copying Benson's draft, robbed the preceding
sentence of a part of its final clause, which should read, '^as far as to
where most probablv it was supposed by whoever it was done the high*
lands mentioned in the treaty are."
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THE SAINT CROIX COMMISSION. 41
nations to that limit, even in case it should afterwards appear
that Mitchell had been mistaken, and that the trueEiver iSaint
Croix was a different one from that which is delineated by that
name in his Map, is a question or a case which he does not recol-
lect, nor believe, was then put or talked of. For his own part,
he was of opinion that the Easterly boundaries of the United
States, ought, on principles of Right and Justice, to be the
same with the Easterly boundaries of the late Colony or Prov-
ince of Massachusetts.'
** Dr, FranMifCs Letter.
"* I received your letter of the 31»* past, relating to the en-
croachments made on the Eastern Limits of the United States,
by settlers under the British Government, pretending that it
is the Western and not the Eastern river, of the Bay of Pas-
samaquady, which was designated by the name of Saint
Croix in the Treaty of Peace with that Nation, and requesting
me to communicate any facts which my memory or Papers may
enable me to recollect, and which may indicate the true River
the Commissioners had in view to establish as a boundary be-
tween the two nations. I can assure you that I am perfectly
clear in the remembrance that the Map we used in tracing the
boundary between the two nations, was brought to the Treaty,
by the Commissioners irom England, and that it was the same
that was published by Mitchell, above twenty Years before.
That the Map we used was Mitchells Map, Congress was
acquainted at the time by a letter to their Secretary for
• foreign affairs, which I suppose may be found upon their flies.'
"The Agent on the part of his Majesty having excepted to
these proofs, on the ground that the matter to be proved by
them was not admissible in Evidence, they were received, sub-
ject to the eventual opinion of the Board on the Question,
whether they were to be retained or rejected? A Boundary
line which Mitchell has on his Map, is the only indication of
the River he intended by the Saint Croix; his intent or Mind
in this respect cannot be discovered from the relative situation
of the River, or of the Lake, laid down as its source, or from
the course or length of the River, or the form or magnitude of
the Lake, or indeed from the supposed representations of any
natural or sensible objects; that part of the Map which con-
tains the Bay of Passamaquady, and the Rivers issuing into it,
being, as to such objects, erroneous or imperfect in the ex-
treme : — ^The Boundary line alluded to, is drawn along the West-
em Bide of the River Saint Croix to the Lake as its source, and
thence round along the Southerly and Westerly sides, and so
fiar along the Northerly side of the Lake, nntill it comes to the
most Northern Part of it, and thence it is direct towards the
Northj *to the River St. Barnabas, being the nearest river dis-
charging itself into the great River of Canada? This Line was
certainly intended to represent, what was esteemed at the time
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42 INTERNATIONAL ARBITRATIONS.
to be the boundary of Nova Scotia, from the mouth of the St.
Croix to the River Saint Lawrence.
"The Map and the other proofs connected with it, therefore,
instead of being of any avail to the party exhibiting them,
they are in confirmation of the very principle of the claim of
the opposite Party, that the River intended in the Treaty, is the
River intended in the Grant for Nova Scotia; the reasoning
from them being briefly that the immediate Agents who made
the Treaty, intended the River which was intended by Mitchell
and that he intended the River which was intended in the
Grant for Nova Scotia; so that, as will doubtless be perceived,
any further consideration of these proofs, or a decision of the
question respecting them, reserved for the opinion of the Board,
became unnecessary.
" With respect to the source of the River, the difficulties which
occurred in determining it may easily be imagined.
"In all cases it would be difficult to determine the Source of
a River, when it is to be ascertained to a precise spot^ to a point
from which a line is to be drawn.
"If it is to be ascertained, or as it maybe phrased,/ouiid, as
a previously assumed Station,m a boundary, Evidence of where
strangers reputed it to be, or where parties intended it should
be deemed to be, might be proper, and under the circumstances
of the case, to be adopted as that which ought to be preferred,
and as competently decisive.
"No such Evidence, however, existed in the present Instance
the several Branches and head waters of the River have
remained unexplored, and the adjacent country unsettled, and
almost unfrequented; so that the only knowledge of the River,
from the Falls in it upwards was scarcely more than what was
primitively communicated to the first voyagers there, by the
aborigfnal savages; namely, that from the Head Waters to the
West, there was a portage to the Norembeque, now Penobscott,
and from those to the North, there was one to the St. John; let
it suffice therefore to intimate, that the reference, as it respected
the Source of the River, being as it were an appeal to mere
judgement or opinion, is in that view analogous to cases of
assessment of damages not capable of being liquidated by
calculation^ or definite Rule, and therefore to be assessed accord-
ing to discernment^ or discretion; a latitude of arbitrament is
in such cases supposed to be permitted to the Jurors, but as
they must at the same time agree in ^precise sum, accommoda-
tion of sentiment among them to a degree is necessary, and con-
sequentlyjustifiable. There is still a question concerning the
boundary between the two nations, in that quarter, and origi-
nating also in the Treaty of peace ; but partaking of the nature
of an omitted case can be settled only by negotiation, and
compact.
"The Treaty supposes the Saint Croix to issue immediately
into the Bay of Fundy, and of course, that there would be an
entire sea board Boundary, if it may be so expressed, between
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THE SAINT CROIX COMMISSION. 43
the termination of the Southern, and the commencement of
the Eastern boundary of the United States; and it also in-
tended, that where tlie Eastern boundary passed through the
waters which were navigable, that both nations should equally
participate in the navigation. The Question then is, How is
the boundary in the intermediate space between where the
mouth of the St. Croix hath been decided to be, and the Bay
of Fundy, to be established, most consistent with the Treaty?
In auvswer to which it may be suggested, that the boundary
should be a line, passing through one of the passages between
the Bay of Fundy and the Bay of Passamaquady; that the
west passage being unfit for the purpose, having a Bur across
it, which is dry at low water, the next to it must be taken, and
the line may be described — Beginning in the middle of the
Cbannel of the Eiver St. Croix, at its mouth ; thence direct to
the middle of the Channel between Point Pleasant and Deer
Island; thence through the middle of the Channel between
Deer Island on the East and North, and Moose Island and
Campo Bello Island, on the West and South, and round the
Easteni Point of Campo Bello Island, to the Bay of Fundy.
"October 25th, 1799. The Commissioners decided the
Scudiac^ and the northern Branch of it, to be the River in-
tended in the Treaty under the name of the St. Croix, and
that its mouth was at Joes point."
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CHAPTER II.
ISLANDS IN THE BAY OF FUNDY: COMMISSION
UNDER ARTICLE IV. OF THE TREATY OF GHENT.
By tlie second article of the treaty of peace
"'J^J^^^^^^ of 1783 « the eastern boundary of the United
of Feooe. States was declared to comprehend " all islands
within twenty leagues of any part of the shores
of the United States, and lying between lines to be drawn due
east'^ from the middle of the mouth of the River St. Croix "in
the Bay of Fundy," and from the middle of the mouth of the
River St. Mary's in the Atlantic Ocean, " excepting such islands
as now are, or heretofore have been, within the limits of the
said province of Nova Scotia." The negotiators of the treaty
of peace seem to have considered Passamaquoddy Bay either
merely as a part of the Bay of Fundy, or else as the mouth of
the St. Croix River.^ But, however this may be, the decision
of the commissioners under Article Y. of the Jay Treaty, that
the Sclioodiac was the true St. Croix and that its mouth was
at Joe's Point, left most of the islands in Passamaquoddy Bay
to the south of a line drawn east from the middle of the river's
mouth; and, as these islands were within twenty leagues of
the shores of the United States, the only question that re-
mained to be determined was whether they were within the
limits of the province of Nova Scotia. The same question
arose in regard to the island of Grand Menan, in the Bay of
Fundy proper.
It appears that soon after the conclusion of
e Khig- w es- ^^^ treaty of peace conflicting claims of sover-
eignty and jurisdiction arose in regard to some
of the islands in Passamaquoddy Bay. Moose, Dudley, an<l
> Supra, p. 2. « Am. State Papers, For. Rel. I. 93.
45
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46 INTERNATIONAL ARBITRATIONS.
Frederick islands were claimed by tbe British as well as by
tbe America!) authorities.^ In 1801 Kafas King, then minister
of the United States in London, was instructed to enter into
negotiations for the settlement of the question of title to the
islands and of the navigation of the channels between them.^
On the 12th of May 1803 he concluded with Lord Hawkes-
bury a convention, by Article I. of which it was provided that
"the boundary between the mouth of the river St. Croix and
the Bay of Fundy" should be "a line beginning in the middle
of the channel of the river St. Croix, at its mouth, as the
same has been ascertained by the commissioners ai)pointed for
that purpose;" that this fine should run "thence through the
middle of the channel between Deer island on the east and
north, and Campo Bello island on the west and south, and
round the eastern point of Campo Bello island, to the Bay of
Fundy;" and that "the islands and waters northward and
eastward of the said boundary, together with the island of
Campo Bello," should belong to New- Brunswick, and "the
islands and waters southward and westward of the said
boundary, except only the island of Cami)o Bello," to Massa-
chusetts.^ Though this division of the islands formed the
basis of the settlement that was finally made, the treaty never
was ratified. An amendment by the Senate in regard to an-
other matter was not accepted by the British Government,
and in consequence the convention failed. A similar arrange-
ment attempted by Messrs. Monroe and Pinkney and Lords
Holland and Auckland, in 1807, also came to naught through
the failure of the negotiations of which it formed a part.
During the war of 1812 the British seized
^ "? ° * and held possession of Moose Island, on which
Eastport stands; and at the treaty of peace
concluded at Ghent on December 24, 1814, though the negotia-
tion was conducted on the basis of the statun quo ante helium^
they refused to restore it. While therefore it was generally
stipulated that all territory, places, and possessions taken by
either party from the other during the war should be restored,
it was specially provided that such of the islands in Passama-
quoddy Bay as were claimed by both parties should remain in
> Am. state Papers, For, Kel. I. 9?, 96; II. 5J<6.
2Mr. Madison, Sec. of State, to Mr. King, July 28, 1801, Am. State
Papers, For. Rel. II. 585.
3 AiQ. State Papers, For. Rel. II. 584.
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ISLANDS IN PA8SAMAQUODDY BAY. 47
the possession of the party in whose occupation they might be
at the time of the exchange of the ratifications of the treaty,
without prejudice to the rights of either party, till the question
of title should be settled.* For such a settlement, however,
Article IV. of the treaty provided in the following manner:
'^Whereas it was stipulated by the second article in the
treaty of peace of one thousand seven hundred and eighty-
three, between His Britannic Majesty and the I7nited States
of America, tliat the boundary of the United States should
comprehend all islands within twenty leagues of any part of
the shores of the United States, and lying between lines to be
drawn due east from the points where the aforesaid boundaries,
between Nova Scotia on the one part, and East Florida on the
other, shall respectively touch the Bay of Fundy and the
Atlantic Ocean, excepting such islands as now are, or hereto-
fore have been, within the limits of Nova Scotia; and whereas
the several islands in the Bay of Passamaq noddy, which is part
of the Bay of Fundy, and the Island of Grand Menan, in the
said Bay of Fundy, are claimed by the United States as being
comprehended within their aforesaid boundaries, which said
islands are claimed as belonging to His Britannic Majesty, as
having been, at tlie time of and previous to the aforesaid
treaty of one thousand seven hundred and eighty-three, within
the limits of the Province of Nova Scotia: Tn order, therefore,
finally to decide upon these claims, it is agreed that they shall
be referred to two Commissioners to be appointed in the fol-
lowing manner, viz: One Commissioner shall be appointed by
His Britannic Majesty, and one by the President of the United
States, by and with the advice and consent of the Senate
thereof; and the said two Commissioners so ap])ointed shall be
sworn impartially to examine and decide upon the said claims
according to such evidence as shall be laid before them on the
I)art of His Britannic Majesty and of the United States
respectively. The said Commissioners sliall meet at St.
Andrews, in the Province of New Brunswick, and shall have
power to adjourn to such other place or places as they shall
think fit. The said Commissioners shall, by a declaration or
' " The exception of Moose Island from the general restoration of territory
is the only point on which it is possible that we might have obtained an
alteration if we had adhered to our opposition to it. The British govern-
ment had long llnctnated on the question of peace; a favorable account
from Vienna, the report of some success in the Gulf of Mexico, or any
other incident, might produce a change in their disposition; they had
already, after the question had been referred to them, declared that they
could not consent to a relinquishment of that point. We thoughtrit too
hazardous to risk the peace on the question of the temporary possession of
that small island, since the question of title was fully reserved, and it was
therefore no cession of territory." (Mr. Gallatin to Mr. Monroe, Sec. of
State, Ghent, December 25, 1814, Adams's 'vVritiugs of Gallatin, I. 646.)
Digitized by LjOOQIC
48 INTERNATIONAL ARBITRATIONS.
report under their hands and seals, decide to which of the two
contracting parties the several islands aforesaid do respectively
belong, in conformity with the true intent of the said treaty
of peace of one thousand seven hundred and eighty-three.
And if the said Commissioners shall agree in their decision,
both parties shall consider such decision as final and conclusive.
It is farther agreed that, in the event of the two Commissioners
differing upon all or any of the matters so referred to them, or
in the event of both or either of the said Commissioners refus-
ing, or declining, or wilfully omitting to act as such, they shall
make, jointly or separately, a report or reports, as well to the
Government of His Britannic Majesty as to that of the
United States, stating in detail the points on which they differ,
and the grounds upon which their respective opinions have been
formed, or the grounds upon which they, or either of them,
have so refused, declined, or omitted to act. And His Britannic
Majesty and the Government of the United States hereby
agree to refer the report or reports of the said Commissioners
to some friendly sovereign or State, to bo then named for that
purpose, and who shall be requested to decide on the differences
which may be stated in the said report or reports, or upon the
report of one Commissioner, together with the grounds upon
which the other Commissioner shall have refused, declined or
omitted to act, as the case may be. And if the Commissioner
so refusing, declining or omitting to act, shall also wiU'ullj'
omit to state the grounds upon which he has so done, in
such manner that the said statement may be referred to such
friendly sovereign or State, together with the report of
such other Commissioner, then such sovereign or State shall
decide ex parte upon the said report alone. And His Britannic
Majesty and the Government of the United States engage to
consider the decision of such friendly sovereign or State to be
final and conclusive on all the matters so referred.''^
Appointment of a Under this article the King of Greiit Britain
Commissioner by on September 4, 1815, appointed as commis-
Great Britain. sioncr Thomas Barclay, who had served in a
similar capacity under Article Y. of the Jay Treaty. It ap-
pears, however, that the commission of Mr. Barclay did not
reach New York, where he then held the post of British consul-
general, till the 7th of August in the following year.*
As commissioner on the part of the United
Appointment of a gtates. President Madison on January 16,
SrSitTstatlr ^^^^' appointed John Holmes, a resident of
Massachusetts, but of that part of the State
which was soon afterwards to become the State of Maine.
' Article A'lII. of the treaty contains certuin provisions as to procedure.
2 Kives's Correspondence of Thomas Barclay, 370,
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ISLANDS IN PASSAMAQUODDY BAY. 49
After having served for several terms in the legislature of
Massachusetts, Mr. Holmes was in 1817 elected to Congress.
On the admission of Maine ab a State, in 1820, he was elected
to the United States Senate, where he served till 1833.'
On the 4th of September 1815 Lord Castle-
in^MtioDs of Uie ^^^^^^ dispatched to Mr. Barclay, in relation to
lioner "^""^ ^^® question under the fourth article, the fol-
lowing instructions:
"With regard to the regulation of your conduct in bringing
to a favorable issue the first question namely, whether the sev-
eral Islands in the Bay of PaSsSamaquoddy and in the Bay of
Fundy belong of right to the United States or to Great Brit- '
ain ; it may be necessary that you keep in mind (altho' in decid-
ing upon it you are solely to be led by the Evidence that will
be adduced in favour of the Claims of other countries [sic]) that
His Majesty's right to those Islands is supposed to be founded
on the Second Article of the Treaty of Peace of 1783 which
excepted from the line 20 leagues from the line of Coast, by
which it was then agreed to fix that side of the Boundary of
the United States, such Islands as now are or heretofore have
been within the Limits of Nova Scotia. — And that the Islands
in question did come within the Limits of that Province, will
be proved not only from the Circumstance of the Jurisdiction
which the Government of Nova Scotia always was in the habit
of exei^cising over the Inhabitants up to the Peace of 1783, but
more forcibly from the fact that the original Patent or Grant
(an extract of which I enclose) of the said Province made by
King James the 5*'' to Sir William Alexander in 1621, after
tracing the Boundaries of the United States {sic) in it's cir-
cumference proceeds to include in it all Islands &c., within Six
Leagues of any part of the circumference.
" It cannot also have escaped your recollection that in the
discussion in which you were engaged with the United States in
1796 and which terminated in your fixing the mouth of the Kiver
St, Croix at Joes Point, the point now at issue was in some
degree decided, a reference to the Proceedings of the Commis-
sioners at that period will prove that the objection made to
that decisiou on the part of the American Agent was that he
(sic) conferred upon Great Britain the possession of the very
Islands now under dispute, and he on that ground argued
the' ineffectually the impropriety of the decision itself."
In acknowledging the receipt of these in-
Biitiih ComiiiiMioii. gtructions Mr. Barclay, while expressing the
t*. ^^ ** opinion that th«* principles on which they were
founded were, with respect to the islands in
iRives's Correspondence of Tliomaa Barclay, 357; Willises History of
the Law, the Conrttt, and the Lawyers of Maine, 275.
5627 4
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50 INTERNATIONAL ARBITRATIONS.
Passamaquoddy Bay, perfectly correct and such as coold not
be controverted, yet disclosed an apprehension that it would
be ^^ difficult for His Majesty's Agent to support with equal
evidence His Majesty's claim to the Island of Grand Manan in
the Bay of Fundy, an island of far more national importance,
than any of the others." *
The grant of Nova Scotia to Sir William
Grant of Nova seotia Alexander in 1621, to which Lord Castle-
id "^ d **" reagh referred, is printed in the original Latin
in the evidence accompanying the statement
submitted on the part of the United States to the King of the
Netherlands under the convention of 1827, to which we shall
refer hereafter. ^ By this grant there were conveyed under the
name of Nova Scotia to the grantee, his heirs or assigns in in-
heritance, <^all and singular the lands, continents and islands
situate and lying in America within the headland or promon-
tory commonly called Cape Sable, lying near 43^ north latitude,
or thereabout; from which promontory stretching westwardly
along the seashore to the roadstead of Saint Mary, commonly
called St. Mary's Bay, and thence toward the north by a straight
line crossing the entrance or mouth of that great ship road
which runs into the eastern tract of land between the countries
of the Souriqums and the Etchemins to the river commonly
called St. Croix, * * * j including and comprehending
within the aforesaid seashores and their circumferences from
sea to sea, all lands and continents with the rivers, streams,
bays, shores, islands or seas lying near or within six leagues
of any part of the same on the western, northern or eastern
parts of the said shores and precincts." The "great ship
road" referred to is the Bay of Fundy. A line drawn across
its mouth from St. Mary's Bay to the mouth of the river decided
under Article V. of the Jay Treaty to be the true St. Croix,
just touches the island of Grand Menan.
At this point two questions arose: First, Did the words
"within six leagues of any part of the same" only mean w^ithin
six leagues of the " seashores," or did they also mean within six
leagues of the "circumferences" and "precincts," so as to in-
clude islands such as Grand Menan, lying less than six leagues
to the west of the line drawn from St. Mary's Bay to the Kiver
' Rives's Correspondence of Thomas Barclay, 371.
-Chapter IV
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ISLANDS IN THE BAY OF FUNDY. 51
St. Croix? And second, Were the limits mentioned in tlie
Alexander grant the true limits of the province?
The language by which the boundary was
OommiMimu of Gov- defined in this grant was not adhered to in the
ernorso ova commissions given to the British governors.
In the commission to Montague Wilmot of
November 21, 1763, it was declared that although the province
"hath anciently extended and doth of right extend" to the
westward "as far as the river Pentagonet or Penobscot, It
shall be bounded by a Line drawn from Cape Sable across the
entrance of the Bay of Fundy to the mouth of the River
St. Croix," etc. Nothing was said as to the islands westward
of this line. In the commission to Lord William Campbell of
August 11, 1765, the province was "bounded on the Westward
by a line drawn from Cape Sable across the entrance of the
Bay of Fundy to the mouth of the Kiver St. Croix • • •,
to the Eastward by the said Bay (of Chaleurs) and the Gulph
of St. Lawrence to the cape or promontory called Cape Breton
in the Island of that name including that Island the Island of
St. John and all other Islands within six Leagues of the coast
and to the Southward by the Atlan tick Ocean from the said cape
to Cape Sable," etc. This restriction to the eastern **coa8t"
of the provision including all islands within six leagues
may also be found in the commission to Wilmot, to which we
have just referred. The same definitions of the boundary were
preserved in the commission to Governor Francis Legge of
July 22, 1773.' They do not comprehend the island of Grand
Menan. It seems that the governor and council of Nova
Scotia granted a reservation of the island to Sir William
Campbell in 1773 till the King's pleasure should be known.^'
' Appendix 15, Stateiiicnt of the United States before tlie King of the
Netherlands, 1829; printed, but not published.
■^Rives's Correspondence of Thomas Barclay, 373. In a letter to Lord
Castlereagh of August 12, 1816, Mr. Barclay, referring to the commissions
of the provincial governors, said : " From those commissions it would
appear that the Islands within six leagues of the coast are confined to the
coast on the Eastern side of the Province of Xova Scotia. The Commis-
sions refer to Islands on the Kast and South sides of the Province, but
are silent with respect to those on tlie West Side. I attribute this to inat-
tention in those who framed the commissions. At that period it was not
perhaps considered necessary to be critically particular in such descrip-
tions m commissions to Governors, the Limits and appendages of tlie
respective provinces had been declared, but had never been surveyed and
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52 INTERNATIONAL ARBITRATIONS.
Owing to adverse winds and to calms, which
^^^*j^ * * delayed the cominissioners at Portland, they
did not reach St. Andrews till the 22d of Sep-
tember 1816, six days later than the day they had appointed
for their first meetiu^^ They held their first session on the
133d of September, when they exhibited their commissions and
took an oath of oflice, which was administered to them by
Hugh Mackay, esq., one of His Majesty's justices of the peace
and of the inferior court of common pleas for the county of
Charlotte, in the province of New Brunswick.^
The commissioners ai)pointed as their secre-
^"*^.^.^**^°'' tary Anthony Barclay, a son of the British
commissioner, at a salary of five hundred
pounds sterling a year.
As agents there appeared on the part of the
encuian n United States James Trecothick Austin, of
Agents. '
Massachusetts, and on the part of Great
Britain Ward Chipmau, who acted as agent for that govern-
ment under Article V. of the Jay Treaty. Austin was a lead-
ing member of the bar of Massachusetts, and from 1832 till
1843 was attorney-general of the State. His commission as
agent was given by the President of the United States, who
appointed him by and with the advice and consent of the
Senate on the 11th of April, 1816. When Mr. Chipman ap-
defined by actual lueasnreuient. His Majesty'H Mininters could not have
intended to take these Islands from the jurisdiction of Nova Scotia with-
out either erecting theui into a distinct colony, which would have been
ridiculous, or annexing them to the, then, Province of Massachusetts.
Neither of these was the case, it therefore follows that they remained part
or parcel of Nova Scotia under the (irant to Sir \Villiam Alexander. Be-
sides it required express words to take those Islands formerly declared to
appertain to Nova Scotia, from it: and your Lordship will presently per-
ceive that on a nearly similar occasion in contracting the Western Limits
of Xova Scotia express words were used in the commission to Governor
Wilmot." (Id. 374.)
'The outh was as follows: "You do solemnly swear, impartially to
examine and decide the claims to be submitted to you, under the Fourth
article of the Treaty of Peace and Amity concluded at Ghent, on the 24th
day of December 1814, between His Hritanuie Majesty .ind the United
States of America, acconling to such evidence as shall be laid before you
on the part of his said Britannic Majesty, and of the said United States
respectively. So help me (iod.'' The certificate of the due administration
of this oath, under the hand and seal of the justice, was filed with the
proceedings of the commissioners.
Digitized by LjOOQIC
ISLANDS IN THE BAY OP FUNDY. 63
peared before the board his commission was contaiued in a
letter from Lord Batliurst, His Majesty's prin-
<^6Bt]aiiastoBntiBii . ^ g^.(>j.gtary of state for the war and colo-
nial department, dated at Downing street,
July 12, 1815, and conveying "the commands of His Royal
Highness " to proceed to St. Andrews as soon as he should
hear of Mr. Barclay's arrival there, "in order to act as agent
to the Commission."^ Mr. Holmes objectecl to this authority
because it was not under any official seal, and because Lord
Bathurst's signature was not followed by his offi<'ial titk».
It was iiiially agreed that Mr. Ghipman sh<mld be recognized
us British agent, but that he should subsequently produce a
formal commission. Such a commission was issued by the
King on January 24, 1817, empowering both Ward Ghipman
and his son, who bore the same name, to act, jointly or sever-
ally, as agents or agent of Great Britain.^ Both the Ameri-
can agent and the British agents, and the secretary to the
commission, were sworn by Mr. Justice Mackay to the faith-
ful performance of their duties.^
On the 24th of September the agents filed
M \^ ^ their respective clahns. That of the agent of
the United States embraced all the islands in
Passamaquoddy Bay and the island of Grand Menan as being
within twenty leagues of the United States and included within
their boundaries, and as not being excepted from those terri-
torial limits by any provision of the treaty of peace. The
British claim embraced the same islands on the ground that
they were within the limits of Nova Scotia and therefore ex-
cepted by the treaty of peace from the territory of the United
States.^
The agents agreed that, in case it should
^^^.. become expedient for either of them to take
the depositions of witnesses in the district
of Passamaquoddy, reciprocal notices of the examination,
together with copies of the interrogatories to be put, should
be duly given. It was also agreed that the plan of the rivers
Schoodiac and Magaguadavic, with their ])rincipal branches,
including the Bay of Passamaquoddy and the adjacent coast
and islands, compiled by order of the board under Article Y.
of the Jay Treaty by George Sproule, esq., surveyor-general of
I MSS. Dept. of State.
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54 INTERNATIONAL ARBITRATIONS.
New Brunswick, and a survey of Passamaquoddy Bay and its
islands made in 1772, sbould be admitted as evidence before
the commission^
After the reception of the claims of the
^^^^'^^^^^ ® respective governments the commissioners
adjourned till the 28th of May 1817, when it
was agreed that they should meet at Boston to receive the
arguments of the agents. Mr. Chipman, however, owing to
an attack of gout and to adverse winds, di<l not appear till the
3d of June, and no business was transacted till the 9th. On
that day Mr. Austin filed his memorial or argument and an
appendix, all in manuscript, together with the depositions of
certain persons taken pursuant to previous agreement. He
then proceeded to read his memorial, arguing as he went along,
and concluded the presentation of his case on the 10th of Jane.
On the 11th of June Mr. Chipman presented his memorial,
documents, and dej>ositions, and proceeded with his argument,
which he completed on the same day.^
At their sixteenth meeting, which was held
Sep esan ose ^^^ ^^^ ^^^^ ^^. j^^j^^^ ^^^ commissioners, after
Argument. . ^ '
making certain orders as to the payment of
expenses, adjourned to meet again at Boston on the 25th of
September, in order to afford the agents time to reply to each
other's arguments. Owing to the fact that he had been elected
to Congress, Mr. Holmes consented to this delay with i-eluc-
tance. The board, however, reconvened at the appointed time
and heard the agents' replies. Mr. Chipman opened on the
» MSS. Dept. of State.
'Mr. Barclay, in a letter to Lord Castlereagh of Jnne 5, 1817, saye:
" The arguments ou the part of both nationH will I hope be read over by
the 12**» current, that on the part of the United States is uunecesKirily
diffuse; after which the Agents will require some time to prepare replies
each to the others arguments, so that a short adjonrumeut will probably
take place. Mr. Chipman bas at my request introduce<l in his memorial
the Arguments used by Comrs. Shirley and Milday in their negotiations
at Paris in 1750 and the extract of the council miniues in 1763, although
he is of opinion, in which I concur, that the claim ou the part of Him
Majesty, must and will eventually rest on the Grant to Sir Wni. Alexander
in 1621. I confess my principal inducement for incorporating in the pres-
ent case, the Arguments used by the Commissioners at Paris in 1750, is
founded more ou the effect it may produce ou the friendly Power to 'whom
the case may be referred, in the eveutof the Commissioners not being able
to agree in a decision, than ou the Comiuissiouers in the first Instance.^
(Rives's Correspondence of Thomas Barclay, 379.)
Digitized by LjOOQIC
ISLANDS IN THE BAY OF FUNDY. 55
26th of September aud closed on the 29th; Mr. Austin opened
on the following day and concluded on the Ist of October.
But, in spite of the fact that tbeir arguments and documents
filled more than 2,000 folio pages, both the agents requested a
further hearing and for that purpose asked for an adjournment
till the following spring. It seems that neither the British
commissioner nor the British agent thought a rejoinder neces-
sary or desirable,' though Mr. Holmes had a somewhat contrary
impression as to their inclination. Mr. Holmes understood Mr.
Barclay to say that he had heard enough, but was unwilling to
refuse a farther hearing; and he was disi)Osed to consider Mr.
Barclay as "refusing, declining or omitting to act,'' if, after hav-
ing declared that he had heard enough, he should still insist on
affording an opportunity for further argument.^ It is probable
that Mr. Barclay, perceiving Mr. Holmes's great anxiety to com-
plete the business before the assembling of Congress, in which
he considered that he could not take his seat without vacat-
ing his api)ointment as commissioner,^ was disposed to let this
motive operate in favor of an agreement, and therefore did
not himself betray any impatience, though, being doubtful
" whether another commissioner would possess that candor and
discrimination" which he had always observed in Mr. Holmes,
he was desirous of concluding the affair with him. On the 8th
of October, however, the commissioners determined that in
their memorials and replies the agents had '' done honor to
themselves and justice to their respective Governments," and
that it was "therefore inexpedient that they should be further
heard."*
On the following day the commissioners
AgiMmen o reached an agreement. The steps by which
it was brought about have been detailed
by Mr. Barclay.'
"In the discussion which took phu^e between the Commis-
* Rives's Correspondence of Thomas Barclay, 389.
« Mr. Holmes to Mr. Adams, Sec. of State, Oetohor 2, 1817, S. Ex. Doe.
97, 20 Cong. 2 sess. lu this letter Mr. Holmes said there was no prospect
that the commissioners woald agree.
3 The Constitution of the United States, Article I. section 6, provides
that " no Person holding any Office ander the United States, shall be a
Memher of either House dnring his Continuance in Office.''
^MSS.Dept. of State.
*Mr. Barclay to Lord Castlereagh, October 25, 1817, Rives's Correspond-
ence of Thomas Barclay, 389.
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56 INTERNATIONAL ARBITRATIONS.
Bioner on the part of the United States and myself, in the
interval from the 2iid to the 9th of October," says Mr. Barclay,
'^ I endeavored to convince him, that by the express words
used in the Grant of King James to Sir William Alexander in
1621, to wit, ^ncludens et comprehendens intra praedictas
maris oras littorales ae earum circumferentidSy a mari ad mare,
omnes terras continentes cam fluminibus, torrentibus, sinibas,
littoribus, insulis, aut maribns jacentibus prope ant infra sex
]eucas ad aliquam earundem partem ex occidentali, boreali, vel
orientali partibus orarum littoralium et praecinctuum earun-
dem ^^^ all the Islands in the Bay of Passamaquoddy and the
Island of Grand Manan in the Bay of Fnndy were included
within the Limits of that Grant. For that although a line
drawn from Cape St. Marys (one of the boundary lines described
in the Grant to Sir William Alexander) to the River St. Croix
would not include all the Islands within it; still a parallel Line
six leagues distant to the South West would embrace them —
and that the Words *sex leucas' referred to ^ earum circumfer-
entias' and ' Praecinctuum earundem,' and not to *oras littor-
ales' nor ^orarum littoralium.' — That the Line from St. Marys
Bay to the River St. Croix was the 'eircumferentias' and the
'praecinctuum' mentioned in the Grant, and that the 'sex leu-
cas' was to be extended from that Line and not from the Coasts
or Shores of Nova Scqtia. — To this the American Commissioner
replied, tliat It was unnecessary for him and me to enter upon
the construction given by me on the Words of the Grant, as
the Crown had decided it repeatedly in the Commissions to the
Governors of Nova Scotia, wherein the Limits of Nova Scotia
were defined; and he referred to the Commission to Montague
Wilmot Esq', in 17G3, wherein all Islands on the North and
East within six Leagues of the Coasts, are declared to be within
the Limits of Nova Scotia, and to the Southward all Islands
within forty leagues of the Coast, but that to the Westward no
mention was made of Islands in the Commission to Mr. Wilmot,
1 In the print of the grant laid before the King of the Netherlands by
the American agents under the convention of 1827 this passage is the same,
except as to some unimpurtaut abbreviations of words which are fnlly set
on t in Mr. Barclay's quotation . The passage translated i nto English reads,
'' including and comprehending within the aforesaid seashpres and their
circnmferenceN, from sea to sea, all lands and continents with the rirera,
streams, bays, shores, islands or seas lying near or within six leagnea of
any part of the same on the western, northern, or eastern parts of the said
shores and precincts/'
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ISLANDS IN THE BAY OF FUNDY. 57
nor ill any other of the Commissions to the Governors of Nova
Scotia; if, therefore, ho were to allow this as an accidental
omission, I conld not in justice require him to admit more than
was given on the North and East, which would be all Islands
within six leagues of the Western part of the Coast of Nova
Scotia, and that this would comport with the Words of Sir Wil-
liam Alexanders Grant ' infra sex leucas ad aliquam earundem
partem ex occid entali, boreali vel orien tali partibus ' &c &c &c, —
but that the sfx Leagues must be measured from the Shores and
Coasts, and not from the circumferences of the Boundaries. — I
suggested that the Commissions were generally x>enned in haste
by Clerks in the public offices, and intended merely as instruc-
tions to Governors, net as acts which were to bind his Majesty
on other points and the foreign powers; because, if Declara-
tions contained in such Commissions could not bind foreign
Powers, it was unreasonable, that the Power making such Dec-
larations and possibly with private views, confined to its own
Subjects, should be bound thereby. In support of this Doc-
trine, I stated several cases, and in some measure brought the
American Commissioner to think there was not so much weight
in his objection, as he originally imagined. I assured, and
endeavored to convince him, that from the Evidence before the
Board, it was manifest, that all Islands i n question were included
in the Grant to Sir William Alexander, and consequently ap-
pertained to His Majesty; and called on him to unite with me
in decision to that effect. This he of course declined ; remark-
ing that such a decision would deprive the United States of
Moose Island and the two adjoining small Islands named Dud-
ley and Frederick, which had been decided to them by the Con-
vention or Treaty in 1803 and by the Supplemental Treaty in
1807, neither of which it was true had been ratified on the part
of the United States, but that they were evidence, that Great
Britain either considered these Islands to belong to the United
States, or was willing to acknowledge them as such, provided
the United States would relinquish claim to all the other Is-
lands in the Bay of Passaniaquoddy. He added that although
he was determined not to execute a decision whereby all the
Islands in question were to be adjudged to belong to His
Majesty, yet he was willing to come to a determination which
should comport with the principles agreed upon by Earl Liver
I)ool, then Lord Hawkesbury, and Mr. King In 1803, and by
Lord Holland and Lord Auckland and Mr. Monroe and Mr.
Digitized by LjOOQIC
68 INTERNATIONAL ARBITRATIONS.
Pinkiiey in 1807. That if I would not consent to this, he was
ready to report, jointly or separately, stating the points ou
which we differed, and the grounds on which our respective
opinions had been formed, and to leave it to the two Govern-
ments to refer the report to some friendly Sovereign or State
for decision, — which decision could not possibly be more ad-
verse to the claims of the TJnited States and might be more
favorable, than that I had proposed. That where nothing more
could be lost, and something might be gained, it was his duty
to refer the question to the Tribunal pointed out by the Treaty
in the event of the Commissioners not coming to a decision.
In adjourning for that day (the 5th of October) I communicated
tlio substance of the conferences, which had taken ])1ace be-
tween the Commissioner on the part of the United States and
myself, to Ilis Majesty's Agent. His opinion coincided with
mine in the following particulars. — That in the event of the
report being referred to a friendly Sovereign, it would natu-
rally be placed by him, in the hands of one of His Ministers,
or Law officers, with directions to examine the reports, and to
recommend the decision which ought to be made. — That it was
probable that either from want of time, or other cause, the
attention necessary to form a correct opinion might not be
given, or that the Arguments in the report might not be fully
comprehended; and that such Sovereign being called upon by
both nations, in the character of a Friend, would probably
adopt the Terms agreed upon (though not ratified) by the two
nations, in the Convention of 1803 and supplemental conven-
tion in 1807. That if this should be the Line pursued by such
friendly Power, still it would remain a matter of doubt to
whom it would decide the Island of Grand Manan to belong. —
That this Island was of more value to His Majesty, in i>oint
of Territory, than all the Islands in the Bay of Passama-
quoddy; and in a military and naval Point of View of much
greater importance. — That it commands the North West Side
fof ] the Bay of Fundy, is immediately opposite that part of
the American Coast, where the waters which pass into and out
of the Bay of Passamaquoddy at a place called West-quoddy
passage and — that His Majesty by being possessed of this
Island, would have it in his power, in the event of a War, to
prevent American Privateers from sheltering themselves in
that Passage and to protect the Province of New Brunswick
and that part of Nova Scotia which lies in the Bay of Fundy —
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ISLANDS IN THE BAY OF PUNDY. 59
That uuless tlie six leagues should be measured from the lino
described in the Grant to Sir William Alexander, from St.
Marys Bay to the River St. Croix, this Island would not be
comprehended within the Limits of Nova Scotia, but only a
small part of it, — and that the friendly power mip^ht i)ossibly
decide in favor of the United States, or that the small portion
of it belonged to His Majesty, and the remainder to those
States — that either event would be extremely prejudicial to His
Majesty's Interest — that in the number of unpleasant conse-
quences which would attend a reference to a friendly Sovereign
or State, independently of the uncertainty of the decision, are
the time it would occupy, and the expense attending such an
appeal.
" His Majesty's Agent further agreed with me, that Mooae
Island is of no moment to His Majesty. It had never been
granted by him to any of his Subjects: on the contrary the
State of Massachusetts had granted it to citizens of the United
States — admitting that the friendly Sovereign should decide,
that this Island did belong to His Majesty, the present Pos-
sessors would, on taking the Oaths of Allegiance, be confirmed
in their titles to the Lands they held, while their sentiments
would probably remain favorable to the Interests of the United
States, and from their having access to His Majestys other
Territories, would in time of War have it in their power to
communicate information to His Majesty's Enemies. That
this Island lay within less than half a mile of the American
Shores, and consequently was at any moment liable to be taken
X)OS8ession of, unless defended by strong works, and a compe-
tent Garrison — That it was not worth this expense, nor, indeed
either in an agricultural point of view, or for a fishery, of any
value to the Crown. — ^That Frederick and Dudley Islands,
adjacent thereto, were merely Eocks in the Bay of Passama-
quoddy, extremely small and incapable of improvement, or
indeed, of being made useful in any manner whatever. If an
amicable decision could be effected by giving Moose Island
with Dudley and Frederick Islands, its natural appendages to
tiie United States, His Majesty's Agent thought it would be
an advantageous adjustment on the part of His Majesty, and
infinitely preferable to leaving the question to be decided by
a friendly Sovereign. Accordingly when I met the American
Commissioner on the 6*** day of October, I stated to him, thnt
I had reflected on what he had suggested, and notwithstand-
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60 INTERNATIONAL ARBITRATIONS.
ing my conviction that His Majesty's claim to all the Islands
was supported by incontrovertible evidence, that I was willinjj,
in order that a decision might be made in preference to a report,
to yield up a part of the Islands claimed by His Majesty, to
wit, Moose Island and Dudley and Frederick Islands, on con-
dition that all the other Islands in the Bay of Passamaquoddy,
and Grand Manan, should be decided to belong to His Majesty.
He appeared astonished that either myself, or his Majesty's
Agent, had ever been serious in the claim for Grand Manan:
represented its lying directly opposite the American Shores,
and without the Limits of Sir William Alexanders Grant,
except a fractional part of it; and that he never could consent
to decide that this Island belonged to His Majesty. To these
remarks I replied, by declaring, that unless he acceded to my
last proposal, the appeal should be made to a friendly Sover-
eign or State. Eventually he agreed to give up Grand Manan,
l)rovided I would add the Island of Campo Bello to the three
I had offered to give to the United States. I told him he had
my ultimatum, an ultimatum I had brought myself with much
difficulty to offer, while under a conviction that His Majesty's
Title to Moose, Dudley and Frederick Islands was beyond dis-
pute— It was not until the morning of the 9^**, that I could
induce the Commissioner on the part of the United States to
agree to the Terms I had proposed, and then with great reluc-
tance and apparent Hesitation, and only on condition that I
would unite with him in a Letter to both Governments, ex-
pressive of our opinion that the Eastern Passage from the Bay
of Passamaquoddy was common to both nations. This letter
lie penned while I wrote the decision, but the Letter was so
corrected by me, as to render it a mere matter of opinion, not
official, on the part of the commissioners and consequently not
binding on either of the nations. Still I beg leave to observe
to your Lordship that I think the United States, in justice,
and for preserving harmony between the two nations, should
be permitted the use of this Eastern Passage, or outlet into
the Bay of Fundy."
The commissioners held their last meeting
^^ilrf'*^^ in Boston on October 11, 1817. They next
met in the city of New York, pursuant to their
adjournment, on the 24th of November, when their award,
engrossed on parchment, was duly executed, and the secretary
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ISLANDS IN THE BAT OP P0NDY.
was (lire4^!tM to deliver it in (lupUcate ta each of the two
agents, Ou the 14tli of October Mr, Holrties had written to
Mn AdamiSi who was then Se^.Tetsiry of State, that the coin-
roissioiiers had pmci^ediHl amioably ami liad conio to adecii^ion,
and that they wonld meet in l^ew York on the 1^4th of Novem
h^.T for the porpose of concluding it* Though the decision
was not, he said, 8o lavonilde to the United States as ] perhaps
it should be, yet it was, he trusted, better than to disagree^
and one that comported with the honor and intorej^ts of the
United States, On the 24th of November Mr. Holmes resigned
his con]mi3siooer8bipJ
By the aecounta presented by the agentis, it
appeared that tlu^ total contingent ex:penseH
of the commission, induding the salary of the
secretary, which were apportiotnible between the two govern-
ments in equal moietiei*, amounted to only $5,91)7.-8*^
The commissioners communicated their deci-
Letter of tbeCommii- ^j^^ ^^ ^^^^ ^^^^ governments with a join t letter,
A*'^,^*^ "* * of which the copy addresi^ed to tlie Secretary
of State of the United States \s as follows:
Exponsfli of the
Commitaion.
"ITew YorKj Novemher 24^ 1817.
^^SrE: The undersigned Oommissionersj appointed by % irtae
of the fonrth artitde of the treaty of Ghent, have attended to
the duties asaigued them ; and have decided that Moose Island^
Dudley Is^land, and Frederick Island, in the Bay of Passama-
(pioddy, which is part of the Bay of Fundy, do each of them
belong to the United States of America j and that ali the other
i si a M d s i n the Bay of P assa m aq uo d il y , a n d t h e I si a 1 1 d o f G n ii i d
Men an in the Bay of Fimdy, do each of them belong to Ilia
Bn tannic Majesty, iu conformity with the true intent of the
second article of the treaty of peace < if one thousand seven
hnndred and eighty three. The Gommisaioners have tlie honor
to enclose herewith their deeis^iou.
^^In making this decision it became necessary that each of
the Commissioners Bhonld yield a part of his individual opin-
ion. Several reasons induced tliera to adopt this measure;
one of which was the impression and belief that the navigable
waters of the Bay of Pa^ssamaqumldy, which, by the treaty of
1 S, Ex. Doc. 97, 20 Cong. 2 aeofl.
*For appTOpriatioiifl, mm 3 Stiite* at U 283, 35a, 432*
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Google
62 INTERNATIONAL ARBITRATIONS.
Ghent, is said to be part of the Bay of Fundy, are common to
both parties for the )>ari>08e of all lawful and direct commani-
catioD with their own territories and foreign ports.
"The undersigned have the honor to be, with perfect respect,
sir, your obedient and humble servants,
*'J. Holmes.
"Tho. Barclay.
"The Hon. John Quincy Adams,
Secretary of State,^
" Decision of the Commiissioners under the fourth article of the
Treaty of Ghent. Nov. 24, 1817.
"By Thomas Barclay and John Holmes, Esquires, Commis-
sioners, appointed by virtue of the fourth article of the treaty
of peace and amity between His Britannic Majesty and the
United States of America, concluded at Ghent on the twenty-
fourth day of December, one thousand eight hundred and four-
teen to decide to which of the two contracting parties to the
said treaty the several islands in the Bay of Passamaquoddy,
which is part of the Bay of Fundy, and the Island of Grand
Menaii, in the said Bay of Fundy, do resi)ectively belong, in
conformity with the true intent of the second article of the
treaty of peace of one thousand seven hundred and eighty-
three, between his said Britannic Majesty and the aforesaid
United States of America.
" We, the said Thomas Barclay and John Holmes, Commis-
sioners as aforesaid, having been duly sworn impartially to
examine and decide upon the said claims according to such
evidence as should be laid before us on the part of his Britan-
nic Majesty and the United States, respectively, have decide<1,
and do decide, that Moose Island, Dudley Island, and Fred-
erick Island, in the Bay of Passamaquoddy, which is part of
the Bay of Fundy, do, and each of them does, belong to the
United States of America; and we have also decided, and
do decide, that all the other islands, and each and every of
them, in said Bay of Passamaquoddy, which is part of the Bay
of Fundy, and the Island of Grand Menan, in the said Bay of
Fundy, do belong to his said Britannic Majesty, in conformity
with the true intent of the said second article of said treaty of
one thousand seven hundred and eighty-three.
" In faith and testimony whereof we have set our hands and
aflftxed our seals, at the city of New York, in the State of New
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iSLANtM! m THE BAY OF FUNDY. 63
York^ in tho Uiiitefl States of Amerk-a, tliiw tweuty-fourtli <lay
of November, in the year of our Lord one thousand ei^^lit hiiii
dred and aeveiiteeu.
^^[^EAi.] John, Holmes
*'[seal] Tho. Bakclay."
'* Witiiess;
** jAMTiS T. AUflTIN, A0t. IT, S, A,
Preaideut Monroe^ in his aunnal message of
AzLiiouiioeminit at j^^^^^^^^j. ^ ^g^j expressed " satisfaeti.ui^'
that the commissioners '^ to whom it was
referred to decide to wliich party the several islands in the
Bay of Passamaqiiocldy belong^ed" had ** agreed od a rei>orrj
by T^hicli all the iglnnd?^ in the possession of each party before tlie
late \mr have been decreed to it ;" but be did uot expressly refer
to the [sland of Grand Menan, a eircimistance whieli led the
Britisli commissioner to xsnrniise that the Preaideut '* felt sore on
the point.^ * The British eommfssiouer undoubtedly exhibited
much ability ainl skill in his negotiatious with Mr. Hohnes,
" You kuf ^w," Maid Mr, VVebnter, ^* we think that Graud Menan
shoald have been assigned to us»^'
Tiiough the ownership of the islands was
Tkiflg e *^thus detcrntined, no step was taken to mark
Boii]3,djirv4
the water boundary till 18U1. On the 22d of
July 1892 a treaty was concluded between the United States
and Great Britain^ by Article II. of wliich the high con trusting
parties agreed to appoint two commissioners, one to be named
' TbiK <leciwji*ti is pnuted in the vtilniiv© of Troatit^ft «iid ConveriMuni!^ ol'
the United Stiites, uinl in the Ara. Stute r'aperH, For* Rel. IV. 171, St-e, nUo,
H©rt*ii?t'8 Br. A. For. State Pft]>er;i, IV.K(}5; V/U>8. Th© njeraorials, ar^^u-
muDtit, aud exUiliits are in tbt^ Departitieat of State. Aiuong the papers
ara eight luauuampt voInmcHj na follo^va: (L) Metuonnl uf Aniertean
Claiin, Part L, tlpvi>tcd to ftliowjtig that the iahiiids were part of Ma^na-
ctiUKettft; (2} MemnHal of Americiin Claini, Pnrt IL, devot^pd to ?iji exani-
inaftoii of the extent nnd limits of Nova 8cotin, for the piiryiose of showinf^
that thL' ialautiB were not within that provliicL^; (3) Appt;iidl^ to AuieHcan
Memoriar; (4j Miip a€coru|>unvin>( Ameiicau Meioorial; (5) Memorial of
Oritisli Clsiitn; (6) Ajnen(![m Koply to British Memorhd; ^7) British Ruply
to Am^rit^uu Motnorinl; j8) AppeocUx to British Jieply. The memorials
and replii'S arc elaborate and exUaiif^tive,
' Hi\ rs'» Cijrrtsapnndenci.' of ThoTtiJiK Harclay* 39J(.
^Mr, Webiitor to 31 r, Graj, May 11, 1H41, VVebetar^a i'dvate Correspond-
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64 INTERNATIONAL ARBITRATIONS.
by each party, "to determine upon a method of more accu-
rately marking tbe boundary line between the two countries in
the waters of Passamaquoddy Bay in front of and adjacent to
Eastport, in tbe State of Maine, and to place buoys or fix such
otber boundary marks as they may determine to be necessary."
"Each government," tbe article also provides, "shall pay the
expenses of its own commissioner, and [the] cost of marking
tbe boundary in such manner as shall be determined upon
sball be defrayed by the High Contracting Parties in equal
moieties."
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I
CHAPTEE III
Tim NOirre EASTERN boundary: COMMISSrOK
UNDER AUTIOLE ¥• OF THE TREATY OF GHENT.
The dei3i8iOJi of tiie commiHsioiieiK under
Lin* in Biipnte, Article IV. of tbe Treaty of Ghent, the hm-
tory of which is narrated in tlie i>re«.^ediiig
chapter, rdsirked Uttle actual x»'o^i"*i^''^^ in the det-erniiuiitioii of
tbe boiiiidary hue which the treaty of peace of 1783 had estab-
Ikhedp J'y tliat treaty the boiuidiiriVs of the tJiiited States
w*ere, as we have seen,' dechired to run: ^^Froiii tlte northwest
angle of Nova Scotia, viz. that au|^le which is forrtied by a line
drawn due ncnth from the Nomx-e of Saint Croix River to the
llil^hhinds; ak>ng the said Oigldands which diviile those rivers
that empty tliemgelve^^ int<:» the river ^t. Lawrence, from thoj^e
which fall into the Atlantic Ocean^ to the north western most
heiul of C'onnecticnt River; thence down along the middle of
that river^ to tiie torty-iifth degree of north latitnde; from
thence, by a line dne we»tou said latitude^ until it strikes the
river Iroquois or Cataraqny J • * • East^ by a line to he
drawn along the middle of the river St. Croix, from itti moutli
in the Bay of Fuiidy to It^ source, and from its source directly
north to the afore fciaid Highlands, which divide the rivers that
fall into the Atlantic Ocean ttom those whTch fall into the
river St. Lawrence, '^ The line thus defined comprises that
section of the liotiudary which was involved ttt what came to
l>e known as the Northeastern Bouiulary ynestioii — a dispute
which^ first arising as to what constituted the 'Miorthwest
angle of Nova Scotia" and the ** Highhiuds^'* spread from point
to point till it embraced Nub?itantialty the whole of the line
fnuti tlie source of the 8t* Croi!t River, as determined by the
comaiiEEiouera under Article V< of the Jay Treaty, to the point
1 Chapter I.
5027-
65
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66 INTERNATIONAL ARBITRATIONS.
where the forty- fifth parallel of north latitude strikes that part
of the St. Lawrence which was called by the Indians the
Iroquois or Gataraquy.
An attentive examination of the clauses
The^'HighiandB." above quoted will show that, in running the
line in question, the basal fact to be deter-
mined was the position of the highlands. The northwest angle
of Nova Scotia is said to be formed by a line " drawn due north
from the source of the Saint Croix Eiver to the Highlands,"
and it is along these highlands that the line to the northwest-
ernmost head of the Connecticut River is to run. On Mitch-
ell's map no such range of highlands as the treaty contemplates
appears, but the negotiators apparently assumed that a con-
tinuous or practically continuous ridge of ground would be
found to divide the rivers emptying themselves into the River
St. Lawrence from those falling into the Atlantic Ocean.
On a map published in 1795 in a work by
lews 0 . u - jjj^^^jj^ Sullivan, 1 who subsequently acted as
agent for the United States under Article V.
of the Jay Treaty, there is a continuous ridge of mountainous
territory running almost in a straight line along the River St
Lawrence, and marked "High Lands being the boundaiy line
between the United States and the British Province of Quebec."
But, in his argument before the commissioners under the Jay
Treaty, Mr. Sullivan declared that the question of the high-
lands was " yet resting on the wing of imagination,^ and that
the "point of locality of the northwest angle" was " to be the
investigation of the next century'' — a prophecy remarkably
fulfilled.
In 1802 Mr. Sullivan returned to the subject in a letter to
Mr. Madison,^ who, as Secretary of State, was then contem-
X)lating a negotiation with Great Britain for the settlement of
the boundaries. The line north from the source of the St.
Croix crossed the St. John, said Mr. Sullivan, a great way
south of any place which could be supposed to be the high-
lands; but, where the line would come to the northwest angle
of Nova Scotia and find its termination, it was not easy to dis-
cover. The boundary between Nova Scotia and Canada was
described in the King's proclamation in the same manner as in
' History of the District of Maiue.
«May 20, 1802, Am. State Papers, For. Kel. II. 587.
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THE NORTHEASTICRN BOUKDARIT- 67
the treaty of peace,^ but the conimiRHionera who were appointed
to settle that line had traverijied the country iu vain to find
the highlands designated as a Immidary, '* I have seen one
of them," continued Mr. Sullivanj ** who jii^n-eH with the
account 1 have had from tlie natives and others, tliat there
are no mountains or highlands im the st>uther]y t^ide of the
St. Lawrence, and northeastward of the river ChaudiiVe.
That, from the mouth of the St. Lawrence to that river, there
is a vast extent of high flat country, • * * being a morass
of millions of acres. • • * That the rivers orin^inatiiig in
this elevated swamp pass each i^tlior wi^ltj^ asuniler, many miles
iu opi)osite courses, some to the 8t. Lawreuce and 8ome to the
Atlantic Sea. Should this description be fouiuled in fact, noth-
iug can be effectively done, as tf> a Canada Vwe, without a com-
mission to ascertain and settle the phu-e of the northwest angle
of Nova Scotia, wherever tlnit may be agreed to he: if there
is no mountain or natural moiininent, an aitificial one nniy be
raised. From thence, the line westward to Couiiectieut river
may be established by artificial monunieutH erected at certain
distances from each other; * * * Though there is no such
chain of mountains as the plauH or maps of the (■cauitry repre-
sent under the appellation of the higlihinds, yet there are
eminences from whence an liorixon nuiy be matle to fix the
latitude from common quadrant ubsservations."
It was in the E*cnse of this letter that ^Ir.
instructioniofMr. Tyj^disou on the 8tU of June 1802 instructed
Kufus King, then minister of the Tuited
States at London, to enter upon lu'ij^otiati^nis for the adjust-
ment of the boundaries.* In lixin^^ the termiiuis i»f the line to
be run due north it had been found, said Mr. Madison, that the
"highlands'' had no definite existenre: and he therefore sug-
gested the appointment of a com mission siurilar to that uiuler
Article V. of the Jay Treaty, *no determine on a point most
pn)per to be substituted for the description in the second
'Mr. SnUivaii refers to the roj'nl prot'himittidn uf (h'trubor 7, 17(t3^ in
relation to the coiiDtries ceded by FraTHo Ut Urt^if lintsiin by tbe Troiity
of Paris of that year. By that prochiniiitinM the jmn hirr of Quebec was
boiin<led on the sonth by a line wliicb^ "'t ros^mg tbti Kiv'<-r St. Lnwrent-i^
and the Lake Champlain in forty- !ive ilffrrece nf ri^rlh liititndej paw^rs
along the highlands, which divide llie rivers that empty thenuselres into
the River St. Lawrence, from those which fall into the aeu/'
^ Am. State Papers, For. Rel. II. 585,
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68 INTERNATIONAL ARBITRATIONS.
article of the treaty of 1783, hayiug due regard to the general
idea that the line ought to terminate on the elevated groond
dividing the rivers falling into the Atlantic, from those empty-
ing themselves into the St. Lawrence. The commissioners
may," the instructions continued, "be also authorized to sub-
stitute for the description of the boundary between the point
so fixed, and the northwesternmost head of Connecticut river,
namely, a line drawn along the said highlands, such a reference
to intermediate sources of rivers or other ascertained or ascer-
tainable points, to be connected by straight lines, as will admit
of easy and accurate execution hereafter, and as will best
comport with the apparent intention of the treaty of 1783."
This suggestion, which originated with Mr.
"Hiehbm^" ^ S^l^ivan and accorded with his long-cherished
assumption that highlands meant a mountain-
ous ridge of land, conveyed the first ofiQcial intimation that
the line of the treaty of 1783 was incapable of execution and
that a new line might be substituted for it. Though the idea
underlying the intimation obviously was, that the substituted
line should be drawn as nearly as possible through the region
where the "highlands" had been supposed to exist, yet the
letter of Mr. Sullivan and the instructions of Mr. Madison,
having been communicated to Congress and thus made a mat-
ter of public record, conceded a point which it was never
possible to regain.^
On the 12th of May 1803 Mr. King and Lord
^^Ico^'eoticm"^ Hawkesbury concluded a convention by the
second article of which provision was made for
the appointment of a commission similar to that under Article
V. of the Jay Treaty "to ascertain and determine the said
northwest angle of Nova Scotia pursuant to the provisions of
the said treaty of peace: and likewise to cause the said bound-
ary line between the source of the Eiver St. Croix, as the
^Mr. Gallatin in a letter to Charles S. Davies of June 14, 1839, said:
''Governor Sullivan's blunder in that respect was the source whence arose
our difficulties, and which led our Government to declare, in fact, that in
its ox)iuion there were, in the topography of the county, obstacles to the
execution of the treaty." (Adams's Writings of Gallatin, II. 546. ) By the
act of April 3, 1802, the sum of $10,000 was appropriated to defray the
expense which might be incurred ''in ne<^otiating witli the government
of Great Britain, for ascertaining and establishing the boundary line
between the United States and the British Province of Uppei Canada. ''
(2 Stats, at L. 148.)
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THE NORTHEASTERN BOUNDARY. 69
same has beea determined by the commisaiouers appointed for
that parpooe, and the northwest angle of Nova Scotia, to be
run and marked according to the provisions of the treaty ii fore-
said." * Provision was also made for the ascertainmeii t of nth er
parts of the line between the United States and the British
possessions. But, in consequence of an amendnieut which the
cession of Louisiana caused the Senate of the United States
t4) adopt, the convention never wan ratified* A simihir tittein[>t
to effect a settlement by Messrs. Monroe and Piukney and Lords
Holland and Auckland in 1807 also {buffered defeat by reason of
an extrinsic cause.^
Thus it happened that when the Aiuericaii
^wBOMd^^ Ghent ^ndBritish lOUimiB-sioaers met atGlient in 1814
to conclude a second treaty of peace no [prog-
ress had been made toward the (letenniuation of the north-
eastern boundary. At the first conference, whicli was held on
the 8th of August 1814, the British commissioners i proposed
a "revision of the boundary line between tlie ISritiwh and
American territories, with a view to jirt^vcnt fat are uncer-
tainty and dispute;" a proposition whirli, in a note to the
American commissioners, they exi*hiined iis enibraciug *'sach
a variation of the line of frontier as may secure a direct ctmi-
munication between Quebec and Halifax/- To this i>roposi
tion the American commissioners replied that they had *^ho
authority to cede any part of the tt^rritory of the United
States; and to no stipulatton to that e fleet will they sub
scribe." The British commissioners explained that '*the
boundary of the District of Jlaint^ ^- had '^ never Ijccn correctly
ascertained; that the one asserted, at ])rcseut, hy the Ann-r-
ican Government, by which the direct communication between
Halifax and Quebec becomes intcrruptctl, was not in contem-
plation of the British Plenipotentiaries wlii» concluded the
treaty of 1783;" and that all they ref[uircd to be ''ccdetr' to
Great Britain was "that small portion of unsettled country
which interrupts the coniinnnicatinn between (iJncbec anil
Halifax, there being much donht whether it does not already
belong to Great Britain."^ It nnist be admitted that the prop-
ositions and the explanation!^ of the British connniHsioatTsdiil
> Am. State Papers, For. Rel. 11. .5S1.
« Am. State Papers, For. Rel. lU. 1B2-1&1.
'The negotiatioDS at Gbeot an- tli. tailed iu Aui. KLati^ Papc^r^, Fui-. If el.
III. 605-748; IV. 808-811.
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70 INTERNATIONAL ARBITRATIONS.
not fit well together. It was they themselves who broaght
forward the subject of the boaiidariea; and they at the outset
proposed a " variation " of the line for a specific purpose. Nor
had the American government " asserted " any boundary line
but in the language of the treaty of 1783.*
The American commissioners therefore ad-
Agreeawmt to Arbi- j^^^^^ ^^ their determination to make no ces-
crftv6i
sion of territory; and, the British proposition
to vary the line having been abandoned, they presented on the
10th of November a draft of " five articles, drawn on the prin-
ciples formerly adopted by the two powers for settling the
(juestion respecting the river St. Croix," for the ascertainment
and marking of the whole line from the source of the St. Croix
to the most northwestern point of the Lake of the Woods, as
well as for the determination of the ownership of the islands
in Passaniaquoddy Bay and of the island of Grand Menan.
These articles the British commissioners, with unimportant
modifications, accepted. In the treaty concluded at Ghent on
the 24th of December 1814 they appear as Articles IV., V., VL,
VII., and VIII. The proceedings under Article IV. in relation
to the islands have been narrated in the preceding chapter.
«^- 1 ^ #m. ^ Article V. relates to the northeastern bound-
Articie v. of Treaty ,
of Ghent ^''y question. Reciting that neither "that
point of the highlands lying due north from
the source of the river St. Croix, and designated in the former
treaty of peace between the two powers as the northwest angle
of Nova Scotia, nor the north westernmost head of Connecticut
River," had yet been ascertained; and that that part of the
' '* I believe that Great Britain is very desirous ofobtaininp^ the northern
part of Maine, say from about 47 north latitude to the northern extremity
of that diatrift as claimed by us. They hope that the river which empties
into Bay dcs Chaleurs, in the Gulf of St. Lawrence, has its sonrce so
far west as to intervene between the head waters of the river St. .John
and those of the streams emptying into the river St. Lawrence: so that
the line north from the source of the river St. Croix will first strike the
heights of land which divide the waters emptying into the Atlantic Ocean
(river St. John's) from those emptying into the Gulf of St. Lawrence
(River des Chaleurs), and afterwards the heights of land which divide the
waters emptying into the Gulf of St. Lawrence (River des Chaleurs) from
those emptying into the river St. I^awrence; but that the said Une never
can, in the words of the treaty, strike any spot of laud actually dividing
the waters emptying into the Atlantic Ocean from those which fall into the
river St. Lawrence." (Mr. (iallatin to Mr. Monroe, Sec. of State, Ghent,
Dec. 25, 1814, Adams's Writings of Gallatin, 1.646.)
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THE NORTHEASTERN BOUWDARY,
71
bonndary line '^wIihIi extentls from this source of the river
St- Croix directly north to tlie iLbovenieiitioned north wee^t
angle of Nova S(»otia, thence nloni^ the said lii^di lands wTiieh
divide those rivers that cinj^tv tljemselvew into the river St,
Lawrifuee from tliose whieli fall into the Athuitic Otean, to the
nortl I westernmost head of Conneetient river^ thence down
along the middle r>f that river to the Ibrty-fifth degree of north
latitude; theiu-e by a line due west on said hititude until it
strikes the river Iroijitois or Cafeiraqny," had mi yet been sur-
vryedj it waw provitled that for these several purposes two coin-
missi oners sliouhl l)e appointed, one by His Britannic Majesty
and one by the President of the United .States, by and with
I he adviee and consent of the Senate thereof, who slionhl be
sworn iinx^^i'^i'^'Lv to exaniiiu^ niul d**cide njion the matters sub*
mitted to them aiH'orditi*^ t^* sncii evitleni-e as shonbl belaid
before them on the part of His llritannf*^ Tilajesty and of the
I'nited States respertively* It was farther provided that the
eonnnissioners shoakl iiu'ct at St* AatirewSj Ne%v Brmisw*ick,
and that they should have povTcr tt» adjourn Uy sucli other
place or phices as they should think lit; that tliey sliould have
*^ power to ascertain arul determine the pijiots above mentioned^
in couforuiity with tlu^ provisions of the said treaty of peace''
of 1783, and shonld **caase the boutulary aforesaid, from the
source of tlie river 8t.('r(u:c to the river Irot|Uois or < ■ataraqiiyj
to be surveyed and marked according to the said provisions;'^
and that they should *Mnake a laaii of the saitl boundary, and
annex to it a declaration under their hands and seals, certifying
it to he the true map of tlie said Itoundary, and particnhiriziug
the latitude and longiluile of the northwest angle of Nova
Hcotirt, of tl»e north westernmost lieail of Connecticnt Kiver,
and of such other points of the said boundary as they may
deem projajr/* This rnap an<l dcchinition the contracting
parties agreed to consider *'as tjualiy and conclusively fixing
the said boundary." But, in the event of the cumniissiouera
di tier rag. it wa^ [irovid^^d that they should make, jointly or
iieparately, a report or reports to their govern rnt^uts, stating
In detail the points? of difterence and the grounds on which
their respective oiuuions had been formed; and the contracting
parties agiTCd to refer the report or re]K.>rt8 to Siome frieiuUy
sovereign or state for fiTial decision. It should be observed
that the *^point of the highlands" designated as the *Miorthwest
angle of Kova Bcotia,-' and the i>oint designated as the north-
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72 INTERNATIONAL ARBITRATIONS.
westernmost head of Connecticut Ki ver, were treated as matters
to be " ascertained and determined,'' while the establishment of
the rest of the line was treated as a mere matter of surveying.
As commissioner on the part of Great Brit-
^^SSTei^' ain George III. on September 4, 1815, ap-
pointed Thomas Barclay, who was by the same
commission constituted the representative of Great Britain
also under Article IV. relating to the islands.^ On the part
of the United States President Madison apiK)inted as com-
missioner under Article V. Cornelius P. Van Ness. His
commission, issued by and with the advice and consent of the
Senate, bears date April 3, 1816. Mr. Van Ness, who was a
native of New York, was at the time of his appointment a cit-
izen of the State of Vermont, of which he subsequently became
chief justice and governor. During the administrations of
Jackson he was minister to Spain, where he concluded the
convention of February 17, 1834, for the settlement of claims.
As the commissioners under Article V., like
eeung 0 ommis- ^^^^^ under Article IV., were required to hold
nonen. '
their first meeting at St. Andrews, Mr. Bar-
clay, who was a commissioner under both articles, arranged
for the assembling of both commissions at the same time. He
met the United States commissioners, Messrs. Holmes and
Van Ness, at Portland, in Maine, from whence they sailed
September 17, 1816.* Arriving at St. Andrews on the 22d,
they held their first meeting on the following day. The com-
missioners under Article V. were sworn by Mr. Justice Mackay
in the same form as the commissioners under Article IV.^
The commissioners under Article V. chose
Choioe^a Secre. ^^^^^ ^ ^^^^^^ ^ ^.^.^^^ ^^ ^^^ United States,
as their secretary, at an annual salary of £500.^
As agent on the part of Great Britain Ward
British Agents. Chipman appeared, and exhibited as his author-
ity a letter in the same form as that which he
produced as agent under Article IV. The difficulty was set-
tled in the same way, by the subsequent production of a com-
mission issued by George III. on the 24th of January, 1817,
appointing Ward Chipman and Ward Chipman, jr., to act,
* Supra, p. 48.
«S. Ex. Doc. 97, 20 Cong. 2 sess.
^ Supra, p. 52.
«MSS. Dept. of State.
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THK NO ETH EASTERN BOUNDARY. 73
jdiiiMy or separately, as Britisb a^eiite;.' At tlie finst isessfoii of
tht! camiuissioiiers no agent appeared on the part of tLe Uuited
States.
On tlie 24th of September ISU* the coiimiis-
A^jonnimwito am- j^j^q^i.^ ,^^f^^,^ .^ (.^y^^ thiv8' session Hdjoiirued.
Not only had the snrveyora not arrived^ Imt
the season wivs too tar advanced to begin surveying for the
year; and tis the firist work reiiriired of the coniniiiision wae
to have exphiratlous and siirvt^ya made of the praetically
unknown wilderness througli whicli tlm line was to rnn^ and
as it was the opinion of tlie beat informed i version b that, owing
to the snows remaining in t Ije WMods and tlie streams beiJig enr-
charged with water, the held operations con hi not be begun
till the following summer, the commissioners adjoanied to
meet in Bosto3i on the 4th of June, when the surveyors were
directed to attend and receive such instruction's and orders ub
might be thought itei-eBsary.^
The BritiKh foreign office, taking aw even
Difficult NatuTO of ^f^p^, simple view of tlie matter than the
eiieitionstoii«De- tj^g^^^i^j^^j^ .^^ Ghent, pronounced the estab-
linhment of the whole of the northeastt^rn
boundary **a mere operation of survey/- in regard to which it
was not necessary to give the British ci>muiissioner any '^specific
i n st i*u ct io n s . ■ ' •* T h e B ri t i si i c< » m m i ssi on e r , \u j w e ver, ^ as better
informed- While the running of a lino due north from the
source of the Kiver St, Oroi^ was, he said, ** ccrt^nnly a simple
operation^'Vyet it was very doubtful whether iiighlands such a^
would tsatisfy tlie treaty of ITH^i would be found on rnnning
that line; nor was he, he adiled, lesH apprehensive, admitting
that such highlands were fonnd, that a diflicultcpiestion would
arise with respect to what stream constituted the uiU'thwest-
ernmost head of Couiu^cticut Iviver, Theso dithcnlties re-
moved, the execution of tlie remainder of tlie line would be
l»lain and easy; but he feared that one or both of the points
al>ove mentioned would '* prove insuperable to the Commis*
sioners, aiul that recourse must be had to a reference, on the
reiM>rts of the Commissi oners, to some friendly sovereign or
^ MS8. n«pl. of f^tivtv^. Supra, t>' ^<
'MS8. Do|»t. of 8tfttfl.
"Lord Civ^tlcreagli t<> Mr. tJarcUy, September t4, 1815^ Hivea^n Cor«j-
fipoiiileiii.-o of Tliomxit BAiclay, 36t<.
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74
INTERNATIONAL ARBITRATIONS.
State; or some amicable adjustment of the line take place
between his Majesty and the United States.'' * The forebod-
ings of the British commissioner proved to be more than well
founded, for the difUculties that arose beiore the boundary was
adjusted comprehended even the forty-fifth parallel of north
latitude.
On the 4th of June 1817 the commissioners
Beaiiembiing of pursuant to their adjournment met in Bos-
ton, where William C. Bradley, of Vermont,
Commiiiionen:
American Agent
Commenoement of
Sorveyi.
appeared before them as agent on the part of
the United States, with a commission from President Madison
dated Febuary 7, 1817.
After conferring for several days, the agents
on the 0th of June jointly presented to the
board a draft of instructions for the sur-
veyors of the respective governments. This draft was, after
some amendment, approved; and on the 14th of June the
commissioners adjourned to meet on the 5th of the following
May in New York, unless they should in the mean time fix
another day and place of meeting.^ The American commis-
sioner desired tha; the ascertainment of the boundaries should
begin at the River Gataraquy on the forty-fifth parallel of
north latitude. This pro|)Osition was, however, opposed by
the British cjommiSvsioner, who was instructed to delay the
astronomical observations till a gentleman for that particular
service ariived from England. It was therefore decided to
begin operations at the source of the St. Croix, and for that
purpose two parties of surveyors were sent out with chain
bearers and axmen, one to press forward to endeavor to dis-
cover the highlands and the other to proceed by actual
admeasurement.^ The former party was under the charge of
Colonel Bouchette, as chief surveyor on the part of Great
Britain, and Mr. Johnson, as chief surveyor on the pai'tof the
United States.
Instead of meeting at New York, the corn-
Meeting of the Com- missioners by agreement held their next ses-
miwMnersatBnr. ^j^^ ^^ Burlington, Vt., on the 15th day of
May 1818, it having become necessary that a
meeting should be held at St. liegis on or about the 1st of
June for the purpose of commencing the survey of the line
* Mr. Barclay to Lord Castlereagh, August 12, 1816, RlveB'S Corre-
spondence of Thomas Barclay, 371, 375.
«MSS. Dept. of State.
'Rives's Correspondence of Thomas Barclay, 379-381.
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THE NORTH EASTEKN BOUNDARY. 75
between the rivers Iroquois and CotnjectieiitJ Aa tlie Messrs.
CliipiuaiL^ the British agents, bad not yet arrived from New
Bninswii'k, tbe board adjourned to the 18th of May, wlieii
tliey api^earefh Several days were ^petit in the adjustmeut of
aiicamits.
On the 2.^d day of May Mr, Onie ressigned
Meetings at Montreal ^^^ ^^^^ ^^^, HOen^tary arul Ward Chininaii, in,
and St. Eega». ,
was made secretary pro temptire.
Oil the 21Hh of May tbe commis^ioiierft niet at Motitreal, and
they sabseqiieutly held neveral ineetiugs at ^t. Keg is, but the
work of the eotnniission was somewhat dehiyed by the hite
arrival of Mr, Ilassler^, the chief astroiiouier on the part of the
United Statics, who had been ilL
On the 12 th of June the coin mission era ap
Appdntm«ntofiisw ^^^^^^.^^ Robert Tillott^on a8 secretary, ill phiee
of Mr* Onie, and adjourued to meet at New
York on the 30th of Novetnber.
Before tliat day arrived it waa ascertained
Meetiiigii at Hew ^jjj^^_ ^^^^ astromMncrs atid surveyors eoiil*l not
m An ^ ^' ]j^ ready to report, and the reasaeinbUog of
^jiei. the board was [mstponed tdl May 3, IHVX On
that day the boarrl met in New York; Itnt, as
t h e sti r vey s w e re n o t ye t eo m pi e t ed , tl i e co m n i i ss i o n erw aft er
holding several sessions and if^siiing fresh instruetions to the
surveyors adjourned to meet at Boston ou the tirst Moriday in
May 1820,
By an agreement modifying the order of adjournment, the
board next met at Boston on the llth of May instead of on the
first Monday in that niontlh Hamuel Hale was appointed setv
retury in phice id" Mr, Tillotson, who had resigned to aceejit
the district attorneysliip of the United States for the southern
district of New York, and oit the 2d of June the board ad-
journed t*^ meet at Ninv York on the 23d of the foHowiug
October, This meeting wiw* subsequently posti^oned till the
23d of November.
On the 25th of that month the board decided
Cempletioii of Sut- ^j^j^j- h^, further surveys were necessary, and
iT^ Torfc^^ ^ ordered tbe agents to attend at the next meet-
ing prepared with their arguments; and ou the
27th of November the board a<Ijourned to meet again in New
• MSS, Bopt, of State.
' Ferdinand R. Ba«Aler^ tbe tlrst Siuioriiitenddut af tke Coast Survey of
the Uiy ted States.
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7fi
INTERNATIONAL ARBITRATIONS.
Claimt and Aiga-
ments of Agents.
York on May 14, 1821, iu order to afford the agents time for
preparation. On that day the board convened in Kew York
to hear argument.
On the 24th of May the agents of His Britan-
nic Majesty presented a memorial iu which
they stated that they were prepared to file a
claim in respect of the northwest angle of Kova Scotia, but
that the agent of the United States had declined to take corre-
si)onding action on that subject. On the following day the
American agent replied, objecting to the taking up of a single
question as being contrary to a prior agreement between the
agents not to discuss i>articular points but to argue the whole
subject before the board in all its parts. On the 9th of June
an adjournment was taken till the 1st of August. When the
board reconvened the controversy as to procedure was renewed,
with man}^ criminations and recriminations as to the responsi-
bility for the delays that had supervened in the execution of
the work of the commission. Arguments, however, were also
made on the merits of the case, and the board, after adjourn-
ing on the 14th of August, met again on the 20th of September
and sat till the 4th of October, when the arguments, which had
been characterized by not a little acrimony, were brought to
a close, and the commissioners, who were unable to agree,
adjourned till the following year in order to prepare their
separate reports.^
The discussion by the agents of the respon-
f ^c^ miilri"*" «it>ility for delays doubtless was prompted by
tlie complaints made both in the United States
and in England of the slowness and the expenses of the
**mere operation of survey" which the commission was insti-
tuted to perform. On December 14, 1820, President Monroe
sent to the House of Representatives a detailed statement of
the expenses under the Treaty of Ghent, by which it appeared
that the amount expended under Article V. for the j^ears 1816
to 1820, inclusive, was $99,099.10, for which the two govern-
ments were jointly liable.^ A select committee of the House, to
whom the message was referred, deemed this amount exorbi-
tant and adverted to the failure of the two governments defi-
nitely to regulate expenditures.^ Most of the expenditures
» Am. state Papers, For. Kel. VI. 138.
«Am. State Papers, For. Rel. V. 50.
'Feb. 3, 1821, Am. State Papers, For. Rel. IV. 647.
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THE NOBTHEASTERN BOUNDAEY. 77
were, Uowever, quite necessary ♦ The requisite surveyH turned
out to be inuL'li more ehibonito and costly tLan was auHcipated.
**Thi* obstacles to be encountered," said Mr* Van Nesui, **Ijave
been great and numerous. The whole extent of the eouutry
from the srntrce of the river St, Croix, north, to the river St.
Lawrence^ and between that line and the head of Couiiecti'
mit ri%^er, m <>ne vast and entire wikleniesSj inliabited by no
liuman being, except a few savages, and, in one s|iot, a few
Freuchmeu/' '
PiwpectivB Biift- -^^ the surveys progresBed the presumptive
gr^ement of Com- possibility of au agreement of the commii^-
iniMioiierB. si^mer^ l^a'atlually disappeared. Colonel Bou^
chette, wlio is reprei^ented ms having been ** bullied*- by the
Amerkau surveyor, and who was later discharged from the
servit-e, seems iu au early stixge of the surveys, when the ex-
ploration trom tiio i^imreo t>f thts 8t, Croix had proceeded
about one liundred miles to the uorthj to have recommended
* Am. State Pjj|HirH, For. KoL 1 V, tMft. By an act of March 3, 1821, 3 Statu,
»t L,iUOt it wan prtividml tbuti^auh cciiiiniissiotit^rauil eueh a^ent niulertho
Treaty of Gbeiit ftUtvuld be c^u titled U\ receive for Lis t*er vices imrfarm^
b<?forc JaDanry 1, 18^1^ uot Du>re than W t-WJ a jeart In fuU romiioni^tion
fur all KLTvicea anil iier!«ona1 t^xpeiiBeEt, nnd after tlint (livtts i^oi moTotbun
$2,oOli ih yciitr» tind that for ii«t tnoro limn two yearfi. For appropriatioufi,
eeo 3 SLaU. at L. 422, Mil, ti7.\ 702. Tho following aro notim of tht^ surveyt*
umler AttU^ln V* : The Jirst HI* iniles north of thn 8k Croix^ to the Re^ti-
giHichc, by Mr. Boncbett*;, Ilritibh, ami Mr* Johnson, Anim^icim, aiirvuyori
ill IHlT; th© remaindt^r to Bt^aver Stniani, a tributary of the St. Lawreuoo,
inJiHili^H from tb*a St, Croix, by Mr, .loUnsoii anil Mr, Odell (British) ilk
1818* Thi* northern oxt.Temity of ihi* ilne-Dorlh line was exnnrined again
ill 1820 by \>r. Tiarks, British astro nonierT and Mr. Bnnihatn^ Ant or! ran
aurvoyor. Mars Hill waw visit«d in 18111 by Mr, Odell and Mr. l*artrid^o,
American fiorvoyor. Mr. JobtiBon In 1H18 vinitml Ore^n Mo nn tain and the
TeniiacoiiMa I'orta^e, wbi^b wan a|;aiu*.*?iaraitjc'd by Mr. PartrblKa iu 1819.
In ISlfl Messrs* i'artrid^R and thlell ascendetl th« Aroostook; Mr* Iliiutisr
(Ainericaii) iiacended the rivi'T AUgiiaflb to ita soiirco, crt^ssml tbo HritiKh
lioe at the UmUa/.n^kMn* Portatfe, aftci?fnled tlie northwi^st hruiioh of the
Pi?oob»('ot-, from t-heHnnacook I^ako to it^ »oiin e, and dcascendtid tho river
to it«t conllnenct.^ with tbi.^ Matawamfctm^ j Mr. CaDipbeiH ( liritisb ) proi'©LHl*?d
from the BrbotMliai; to tbi' Matawaiiikeag, tberite np the Fenoh^eot^ and
visited Mount K&tabdJo, In 1K20 Mr, Odol! and Mr, Lorin^ (Amerieau)
visited this Tuountajo and snrveyed on the F'enobHf^ot and Alignash ; Mr.
Hunter and Mr. Losh (Firitish) surveyed on tho weat and Bontb brauchea
of the 8t. John ^ Mr. Burnham nnd Mr, ('aHil«j (Briiihb) fiiirTcyed Metjar-
loett^ Portftg*>j Mr. Campbijll and Mr. Odell explored difrerent parfc* of
the PeoobACot; Messrs. Bnrubam and Tiarks examin<)d Tiiladi and Green
River portages, and Meaars. Bumham and Carlile the River Onelle. In
th© diflerent years thare were surveys of various high lauds*
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78
INTERNATIONAL AHBITRATION6.
the fixing of the northwest angle of Nova Scotia at the i)oint
where the due-north line intersects the River Eestigouche,
which flows into the Bay of ChaleursJ This recommendation
the British commissioner held in abeyance, and when the
surveys were pushed farther he rejected it.
The treaty of 1783 places, as we have seen,
irortiiwe.t Angle of ^jj^ northwest angle of Nova Scotia at the
Hova Scotia. **
point where "a line drawn due north from the
source of the St. Croix Kiver" strikes the '* highlands which
divides those rivers that empty themselves into the river St.
Lawrence, from those which fall into the Atlantic Ocean." By
the surveys it was found that the north line, passing along the
eastern base of Mars Hill, forty miles north of the source of the
St. Croix, reached at that point a high elevation, and descend-
ing thence into the valley of the St. John, crossed that river
nearly forty miles ftirther on; that it rose again, about ninety-
seven miles north of the source of the St. Croix, to a ridge
dividing tributary streams of the St. John from the waters of
the River Restigouche; and that, proceeding thence across
several upper branches of the Restigouche, it reached, at a
distance of 143 miles from the source of the St. Croix, the
head of the River Metis, which flows into the River St. Law-
rence, and there struck for the first time a ridge that turns
waters into the latter river.
The American agent claimed this point as the northwest
angle of Nova Scotia. The British agent contested it on two
grounds — first, that the ridge, being a mere watershed, did not
possess either that elevation or that continuity which was
essential to highlands; and second, that, as it divided the
waters of the Metis from waters of the Restigouche, which
falls through the Bay of Chaleurs into the Gulf of St. Law-
rence, and not into the ''Atlantic Ocean," it could not be said
to ''divide those rivers that empty themselves into the river
St. Lawrence, from those which fall into the Atlantic Ocean."
The British agent claimed Mars Hill as the desired point;
and while it must be admitted that he supported it by remark-
able dexterity of reasoning, it must also be conceded that he
did not exceed in that respect the requirements of his preten-
' Mr. Barclay to Mr. ChipmaD, November 8, 1817, Rives's Correspondence
of Thomas Barclay, 395; same to same, December 6, 1817, p. 398; see, also,
pp. 378, 396, 400, 402.
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THE NORTHEASTERN BOUNDARY. 79
sion. MarH mil is iu every direction at least a hniidred miles
distant from tbe sources of any of the rivers that empty
into the Kiver St. Lawrence. The only streams it divides are
two small tributaries of the liiver St. John, which flows into
the Bay of Fundy. So that, according to the British agent's
contention in regard to the liestigouche, Mars Hill does not
divide rivers falling either into the River St. Lawrence or into
the Atlantic Ocean. It was preeminent for fulfilling none of
the conditions of the treaty of 1783, except, perhaps, that it
was a high elevation. But the British agent met this difficulty
by interpreting the treaty ac^cording to its ''spirit'' and not its
letter. The words "north to the Highlands" in the treaty of
1783 were, he said, evidently intended to mean that the line
shoald terminate whenever it reached highlands which "in
any part of their extent" divided the waters therein mentioned.
It was not necessary that they should |)osseHS this charac-
teristic "in their whole extent." The words "which divide
those rivers" merely meant "where they divide those rivers."
"Where" the highlands divided rivers emptying themselves
into the River St. Lawrence from those falling into the Atlantic
Ocean i)roperly so-called, the line was to follow such highlands;
but where they did not so divide rivers the line was at any
rate to follow "highlands." To exemplify and strengthen his
interpretaticm, the British agent proposed that the language
of the treaty should be reversed, and that the line, instead of
beginning at the northwest angle of Nova Scotia, should bo
traced "from the north westernmost head of Connecticut, nloug
the highlands which divide those rivers, &c. to the northwest
angle of Nova Scotia, viz. that angle which is formed by a line
drawn due north from the source of the St. <^roix River to the
Highlands." Tracing the line thus, it proceeded from the Con-
necticut River coincidently with the line claimed by the United
States for a distance of about eighty miles, if measured in a
straight line from ]>oint to point, to a place called Metjarmette
Portage, dividing the source of the northwesternmost branch
of the Penobscot River, which falls into the Atlantic Ocean,
from the source of a tributary of the River Chaudi^re, which
falls into the River St. Lawrence. From this point the line
proceeded to Mars Hill along highlands which divide either
tributaries of the Penobscot from those of the St. John
or tributaries of the St. John from each other. To these
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INTERNATIONAL ARBITltATIONS.
Head of Connecti-
oat Biver.
arguments of the British agent the British commissioner added
the suggestion that the treaty, in directing that the due-north
line should be run to the highlands, meant the first highlands
or elevation to be met. The British as well as the American
line may be seen on the map at the beginning of the next
chapter.
As to the northwesternmost head of Con-
Northwesternmost uecticut Eiver the American and British lines
also differed, the American agent claiming the
head of Hall's Stream and the British agent
a different stream.
But the most surprising difference was that
Srth^ItiSf ^^^^^ ^^^^® ^^ regard to the forty-fifth parallel
of north latitude. In 1817 Andrew Ellicott,*
who was then acting as astronomer on the part of the United
States, ascertained the point where that parallel of latitude
strikes the Cataraquy and marked it with a stone monument.
He found the point to be within two or three feet of the place
of its supposed true location. But in the autumn of 1818 Dr.
Tiarks and Mr. Hassler, then the British and American astron-
omers, discovered, apparently to the consternation of both of
tliem, that just east of Lake Ghamplain the true parallel lay
about three-fourths of a mile south of the <'01d Line,'' which
was surveyed in the preceding century. Less than half a mile
to the south of this line lay the fort at Rouse's Point, which
had been constructed by the United States at a cost of a million
dollars and which was believed to be of great strategic value;
and near by was a new work in course of construction ; so that
it seemed tliat both forts were on British territory. The astron-
omers at first kept their discovery a profound secret, except
from the agents of their governments, fearing that its dis-
closure might cause a local uprising.^ There was no doubt,
however, as to the fact. The old line was in certain parts erro-
neous. The American agent, Mr. Bradley, endeavored to meet
the emergency by claiming that geocentric instead of observed
' Mr. EUicott was at this time professor of mathematics at West Point.
He was born in Bucks Co., Pa., Jan. 24, 1754. His father was one of the
founders of Ellicott City (then EUicott's Mills), near Baltimore, Md. His
services to the United States were numerous. He died Aug. 29, 1820. See
Coues's Expeditions of Zebu Ion Montgomery Pike, II. 656.
■^Mr. Tiarks to Mr. Barclay, October 15, 1818, Rives's Correspondence of
Thomas Barclay, 402; Diary of John Quincy Adams, October 28, 1818.
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THE NORTHEASTERN BOUNDAItf. - 81
latitude should be taken, witli the result of tlirowitj^ the par-
allel about thirteen mile^i mn-ih of t!ie tvna latitiul©,'
On the 1st of April 1822 the comuiissiouers
Final Disaffro6xiioiit . * - itr ^^^ i
, „ r . met again in New York and onterod upon their
01 coinini<ip oners. ^ , .
final ses^sion. Ou tliii l.'lth of the month, ! lay-
ing deliberated on tbe questions at issue, they filed the follow-
ing notes, which had been exehanijed in the precedin^^ year:
** New YoitK, ^ftk October 18J?1.
"The arguments of the A^^entB under Uie 5th article of the
Treaty of Ghent on the ponits in et»rjtroversy having elosed,
Mr. Barclay one of the CoiiiniiKsioners to whiim tht^ def^i»iou
of said i>oints is referred, her^^hy stiites to Air, Van Ne.s8 the
other Commissioner that <iii the finest ion aH to the i^urthwest
angle of Nova Scotia he is of opinion that tljat jjoiut ou^^'lit to
be established at or near a Hunuitain or hill called Mans Hill
distant about forty mile?* on a due uorth line from the snuree
of the River St. Croix, ami about thirty-seven miles south of
the River St. John.
"2ndly. That on the question as to the north west^.^rn most
head of Connecticut River, he is td" oiJiiuon that it is situate
at the north westernmost stream whieh eiuj^ties into the third
lake of Connecticut River, north of the ioth de|;?ree of north
latitude.
*'3rdly. He is of opinion that the point established by Dr.
J. C. Tiarks His Majesty's Astnuiomer, on *^eo<^raidiieal prin-
ciples to be the 45th degree of iiortii latitude ou Cminectit/ut
River, is the point which ou^ht to be estatdished by the Com-
missioners, as the said 45th degree of North latitude ou the
said River.
"4thly. That the mode or principles ou which the parallel of
the said 45th degree of Latitude ougrht to be run, siirveyed
and marked, should be according t^> ordinary geographical
principles.
'^Tho, Barclay;'
"New Yohk, Oeiober iih^ 18:21.
"The arguments of the Agents under tlie Tdli article of the
Treaty of Ghent on the points in cfjutroversy having clijscd,
Mr. Van Ness one of the Couiniissiouers to whcnn tlie decision
of the said points is referred, ht-reby states to Col. JSarelay the
* Geocentric latitude, which ia bimofl qu tlio idet% that the eurth in a
sphere, is *'the angle that thi? line to the eurth*H reotpr makej* with ttie
plane of the equator" (Standurd J)jcf. "■ Latitudti"). This ar^am«!iit was
put forward by Mr. Bradley qu th« mii^gOHtion of Mr. IlftH^lcr. Mr. Van
Ness did not sustain it, and tht^ Gr*veni!ii<Mit nT thi^ riiited States dl-vot
adopted it. (Adams's Writings nf UaUittiti, IL 401-4, 40t>.)
5627 6
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INTERNATIONAL ARBITRATIONS.
other Commissioner, that on the question as to the northwest
angle of Nova Scotia, he is of opinion that that point oaght to
be fixed at a place about one hundred and forty-four miles due
north from the source of the River St. Croix, and about sixty-
six miles north of the river St. John and that on the question
as to the north westernmost head of Connecticut River he is of
opinion that that point ought to be established at the head
of the west branch of Indian Stream; and that these opinions
he will report to the two Governments agreeably to the pro-
visions of the said treaty.*
"As to the questions which have been made by the Agents
relative to the Boundary from Connecticut river, to the River
St. Lawrence or Iroquois, Mr. Van Ness will inform Col. Bar-
clay by the first day of November next, whether he shall
consider it necessary to report any opinion on that subject, and
if so, he will state to the Col. that opinion.
«C. P. Van Ness.^
" Burlington, November lOy 1821.
"The Honble Thos. Barclay.
" Dear Sir : Yours of the 22nd of October has been duly
received.
"I have concluded that it will not be necessary for me to
report any opinion on the questions which have been made
relative to the Boundary Line from Connecticut River to the
River Iroquois.
"I intended to have made this communication sooner, but
have been unavoidably prevented from doing it before.
"I am, very respectfully, your obedient servant,
"C. P. Van Ness."
Commisuoners'
Beporti.
Besides filing these disagreeing opinions,
the commissioners presented their re8i>ective
reports, for the preparation of which they had
adjourned in the preceding October. These reports were, in
accordance with the provisions of the treaty, transmitted to
the contracting governments. They exist in manuscript in the
Department of State, that of the British commissioner, partly
because it incorporates copious extracts from the arguments
of the agents, being much the longer. The substance of both
reports was printed as Appendix LIU. of Gallatin and Preble's
* It has been seen that the agent of the United States claimed the head
of Halls Stream as the north westernmost head of Connecticut River. Mr.
Van Ness, however, decided in favor of Indian Stream, thongh it was le,ss
advantageous to the United States, because Halls Stream empties into the
Connecticut just below the "old line" of forty-five degrees.
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THE NORTHEA8TEHN BOUNDARY.
83
A^'onmment of
Commiiflipzi.
Definitive Statemeut to the King of the Netlierlauds as arbi*
trator uuder the cooventioa of 1837*^
After exehangrn^g their reports the eommis-
sionera certified to the i^orrectueas of the 8i?ere-
tary's journal, and adjouiiied ^* subject to the
pleasure of the two goYennneuts, whether in any event to hold
any further meet lugs <ir perforin any further ser vices*''*
' See AdaniB^B \Vritin|rs of Gfil latin, 11, 40B, 408. Mr, Gallatin, who was
very firmly convinc^t'd at" the JiiHlice of the claim of tUe UDitffl fitutes as
to the Maino boundary, proiionucod Mr. Viin Nenbs^s report **roiiclu*tive and
remarkatilj wi^M drawn/' On the other hatut, he cunsnres the ari^tmient
of Mr. ChtpmaiL as''' a t^sBiie of uufuuiiderl assertiDUS mid glaring sopbra^
tty,^* and th*? report of tht^ lUitiah cotiLniiH<iLo[ier as '^standalotm/* (Id, 357, )
Mr, Van Kess wholly rejected the ootion of Mr» Bull i van that the t^rni
^MitghlandEt" meahlT necessarily, .i pe<uiUarly elevated or a mounti&iuotia
tract.
'A Hit of the very volunniioiis documents in the Departniont of State
belonging to this conr mission iitsiy l>e Jjuirtd in Am. State Taiiers, For. ReL
VL 926-J127* They eom]jri&6j among oth^r thinr^s, the folh^tt-ing volumes:
(1) Journal of the Commission ; (2) (luima of the Aginiti*; (3) Aimnt^re of
Agents^ {i) JJe[iliea of Agents; (5) («eiieral Appi^iidix; (6) Appendix to
British Keply ; (7) Keport of Commisstoner Van Nenaj (S) liepurt of His
B ri tan n ic M aj eaty *m C oin missioutiirt
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^
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ill
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OHAPTEE IT.
1? IfORTHEASTEKN BOUNDARY: ARBITRATION
INDEB THE CONVENTION OF SEPTEMBER 29,
827.
Thefuiture of the commissioners nnder Arti-
liMoa «f VaiiM. ^,jj y ^^j. jjj^. Treaty of Client to reudfr a (le<;i-
j^ioii ou til© iiortlieai^terii bouiKlary ijiiestioii
losiui iipnit the two governments the duty of referring the
sports of the snid caimnisisioners to some friendly aovereigii
state to be then named for that puri^ose."^ The indeflrnte-
\B of this provision bred delay, %vhieh served only tocomijli-
e the diffleiilties of a settlement. By aets of June 10, 1810^
I February 25^ 18L*0, the commouwealtli of Massac^huaetts
isented that the District of Maine sliould bo erected into a
ite; and by an uet of Congress of March 3^ 1820, Maine was
mitt^d as ii member of the Union from the 15th of the same
nth*
Soon afterwards dtaptites be^an to multiply
mtes between [jj regard to the contested territory, and the an-
[ainft and N*w ^j^^jj^j^ji^g ^f Maine and New Brunswick were
often involved in controversy* In Jnnnary
i5 a committee of the senate of Maine made a report in
icli it was alleged tlnit persons from New Eninswiek had
in guilty of encroaching and cutting timber on the territory
th:it State/^ Wlien the matter was brought to itt4 attention
5 British (iovernment promised that encroachments on the
iiiowledged territory of the l-nited States should cease}
bnt it claimed that the Aroostook and Mada-
Mtook and Mad- ^.^^^^ settlements, which were treated by the
committee ot the Maine senate as lying witliin
^t State, were within the British jarisdictioDp It declared
IM«
iTrt?iity ot Deoemlipr 24, \HU, Article IV,
*Br. attd Fi>r, ijtiilu PapetB, XV* 469,
S&
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86 INTERNATIONAL ARBITRATIONS.
that the Madawaska settlement was established under a crown
grant made thirty years before, and that as late as 1810, when
the settlement had been established upwards of twenty years,
no claim to it had been advanced by the United States. The
Aroostook settlement was asserted to be British on the gronnd
that it lay north of the range of highlands which the line
north from the source of the St. Croix reaches at Mars Hill.*
Moreover, the British Government complained that two Amer-
ican citizens, representing themselves as agents of Massachu-
setts, which, in consenting to the separation of Maine, retained
an interest in the wild and uncultivated lands of the district,
had been circulating notices on the rivers St. John and Mad-
awaska to the effect that they were authorized to make grants
in those regions. The United States, after seeking information
of the local authorities, answered that the acts complained of
were purely precautionary, for the purpose of avoiding any
impairment of the claims of Maine and Massachusetts; and it
was suggested that till the question of title was settled both
governments should pursue a system of forbearance and mod-
eration.* At length a common understanding was reached
that, pending negotiations, no exercise of exclusive jurisdic-
tion by either party should have tlie effect of changing the
j state of the question of right which was to be definitely settled.
It was hoped that this agreement would prevent collisions, but
in spite of it they continued to occur.^
The arrest of John Baker by the authorities
I Arreft of John ^^ ^^^ Brunswick in 1827 in the Madawaska
settlement gave rise to an animated corres-
I pondence. The United States contended that the settlement
'i on the Madawaska was an unauthorized intrusion on the prop-
j erty of Massachusetts by individuals after 1783, and that it
I was not till 1790 that New Brunswick assumed to make grants
I to the intruders. A demand was made for Baker's release,
I together with reparation for his arrest and imprisonment,
and for the abstention by New Brunswick from acts of exchi-
I sive jurisdiction in the disputed territory till the question of
title should be decided.^ The British Government answered
that Baker had from 1810 to 1820 resided in New Brunswick
1 Br. and For. State Papers, XV. 474.
2 Br. and For. State Papers, XV. 476, 478, 487.
« Am. State Papers, For. Rel. VI. 626.
^ Br. and For. State Papers, XV. 494, 507, 565.
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THE NORTHEASTERK BOUNDARY.
87
I Canada J that in 1820 he went to the MadawHska settle-
nt and lived on land granted bj New Brunswick, and tliat
had obtained the government bounty on the cultivation of
lin; that as lato as lS2li he had apijlied to the British
:horities for the enforcement of British laws; that he wai*
ilty of acts of outrage ami sedition, ami that the British
thorities shonld be permittiHl, pciiditig a settlement of the
BHtion of title, to continue the exercist3 of jiirisdictiou over
ritory held for a long time by them. New Brunswick had,
was said, discoutinued the issuing of liceus^es for the cut-
g of timber in the district in questiou.' Tliua not only w^ere
i diiiereue.es of the eommissionerB under Article V. of the
eaty of Ghent transferred to the domain of diploinaey,
t they were also exposed to the hiizardi^ of local rivalries,
litical and x>ersonal.
Meanwhile negotiations were undertaken for
^otiatioits of Kr,
GaUatln.
' the settlement of the bt>uudary. In 1820 Al-
bert Oallatin, who was one of the commiRsiou-
i of the United States at (Ihtmt in 1814, ^veut to England
minister of the United States charged with the tluty of
ran gin 1^ various questions t>f diftcrence. In regard to the
rthcasteru bmindary, he was iuatructed to endeavor to have
e subject referred for direct negotiation to ^X^ishington^ but,
case the att*^mpt sht^nkl fail, to agree ad referendum on a
itemeut of the controversy to be submitted to arbitration.
was found necessary to adopt the latter course. In the
iiferences on the various (|uestions of difference, the British
jverjiment was represented by two plenipotentianes, Messrs.
lurles (.irant, aftcrwanl succeeded by William Uuskisson,
id Henry Unwiu Adding ton; and, although the formal nego-
itious on the northeastern boundary wore brief, tJie iutbnnal
scnssiou^ were tedious and protracted, Mr, Gallatin being
indi plagued not only by the letters of Mr, 8nllivau and Mr,
ailisnu;^ wliich had been published in the United States,
It ill so by Mr. Adtliugton, wliom lie prononnt'cd ^'extremely
nmiimgc^able/'' Several si>vereigns were considered as arbi-
\iti>T, among them the King of Prussia and the Emperor
Ku^asin, but no agre<nucnt on this subject was reached.
Br. and For. State Pnperij 3tV. 507, 5€^, Sue, also, Am. State Papers,
r. Kel Vt. K^, 1015 ; S, Ex. Doo, 130, 20 Cong. I a^aaa, ; H. Ex. Doc. 278>
Supra, pp. m-^.
n
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88 INTERNATIONAL ARBITRATIONS.
Mr. Gallatin proposed that in order to avoid topographical
disputes the two governments should agree on a general map
of the country, and this proposal was accepted.^ On the
18th of August 1827 he addressed a note to the British pleni-
potentiaries, inclosing a project of a treaty of arbitration.
At the seventeenth conference the British plenipotentiaries
opened the subject, referring to Mr. Gallatin's note, and at the
nineteenth conference a convention was agreed on.^ It was
signed September 29, 1827. Receiving the approval of the
President,^ it was transmitted to the Senate, whose advice and
consent to the exchange of the ratifications was duly given.*
By this convention the contracti ng parties en -
Conyentionof 1827. gaged, as soon as its ratifications should have
been exchanged, to proceed in concert to choose
some friendly sovereign or state as arbiter, and to use their
best endeavors to obtain a decision within two years after the
arbiter should have signified his consent to act. But, for that
part of the Treaty of Ghent which stipulated that the reiwrts
of the commissioners, if they disagreed, should be presented to
the arbitrator, the convention substituted a new mode of pro-
cedure. The reports of the commissioners and the documents
thereto annexed being, said the convention, " so voluminous
and complicated as to render it improbable that any sovereign
or state would be willing or able to undertake the office of inves
tigating and arbitrating upon them," it was agreed " to sub-
stitute for those reports new and separate statements of the
respective cases, severally drawn up by each of the contracting
parties, in such forms and terms as each may think fit.'' It
was further agreed that these statements, when prepared,
should be mutually communicated to each other by the con-
tracting parties within fifteen months after the exchange of
the ratifications of the convention, and that, after such com-
munication had taken place, the parties should have the right
to draw up definitive statements, which should be mutually
communicated by each party to the other within twenty-one
months after such exchange of ratifications.
In order that the statements of the contracting parties might
be prepared with full knowledge, it was provided that each
» Adams's Writings of Gallatin, II. 308, 309, 331, 361, 363, 369, 388.
8 Am. Stat© Papers, For. Rel. VI. 643, 700-705.
^Adams's Writings of Gallatin, II. 398.
^For later comments on the convention by Gallatin, see Adams's Writ-
ings of Gallatin, II. 544-545.
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THE NORTHEASTERN BOUNDARY.
89
f should, \ritbiii liiiso months aftor tbe exchange of the
[oatioim uf the (loHventiuu, coniiimiijciite to tbe other all
eiice iiiteufled to be adduced in support of its daini beyond
wliich w^us contained iu tbe [lapers of the eorumissiou
)V Article V. of tbe Treaty of Glieut, and that eauli of the
ics should be bound, on the application of tbe other, made
in six montlis after snrb cxehaugeof ratJiicatioiiH, to^ave
:beiitick copies of such iudividually ispecititid aetn of a
iek uatni^, relating to the territory in cinestion, intended
^ laid as eviilouue before the Arbiter, as have been ij^siied
*r tiie authority, or are in the exclusive posseswion, cif eaeli
f^ It was fnrtber provided that no uiapSy siirveysj or
trraphieal evideuce sbouhi be adduced by either party be-
I what was stiiJiilated in the eon vent ion itself, \m\v any
i evidence other than that luuhially emuuuiuirated or
led for, and that each party Hhould have full x>ower to
rjjurate in i>r anin^x to either its hrst or i^etMjnd statement
l>ortiou of the repoj ts and aeeunjpauying ijapers of the
miss i oners u rider Article V, of the Treaty of Ghent, or of
ither evidence inutually eoinniunicati*d or applied for.
The {joininissioners under Article V* of the
ffimal M&pi, Treaty r»f Gheiit were uiuible to agree even on
a ^anicral topo^craphical mai» of the territory
isimte. Tbe eonv^ention supplied this defect. Itpiovided
Mite helps map, by which tlie franiers of tbe treaty of
were ''acknowledpHl to have regiUated their joint and
lal proceA^dlii^s," and a map marked A, which had been
ed on as a delineation uf the water i-onrses and of tbe
uU*d boundary lines, Hbouhl be annexed to tbe statements
n* contracting parties^ and should be tbe only maps to
!onsidercd as evidence, mutually acknowledged by the
rsu'ting parties, of the topography of tlje country.* The
raeting imrties were, however, perndttcd to annex to their
?inents other maps and transcripts of nnip A witli lines
esenting the highlands or other features of the eoiintry
aimed by them, it being agreeii that snch maps and tran-
>tH sbouhl be rautnally communicated by each party to the
r within nine tnimths after the exchnngc of the ratifira-
i of the convention, and be subject to such objrctions and
rvations as the other party might deem it expedient to
e.
^ Mn|t A a|ipeaTfl at the ^itai^inuing of tbii i^Uaptef.
Digitized byi
90
INTERNATIONAL ARBITRATIONS.
, \ , The i)eriod within which the completed
*AT^rati * Statements of the contracting parties, with
the accompanying documents, should be pre-
sented to the arbitrator was fixed at two years after the
exchange of the ratifications of the convention, unless the
arbitrator should not within that time have been selected and
have consented to serve, in which case it was stipulated that
the papers should be laid before him within six months after
the time when he should have consented to act. It was also
provided that the statements and accompanying documents
should be laid by the contracting parties before the arbitrator
jointly and simultaneously.
In order to facilitate the attainment of a
Powers of tiieArbi- gound and just decision the arbitrator was
authorized, by a requisition simultaneously
made to both parties, to call for further elucidation or evidence
in regard to any specific point contained in any of the statements
submitted to him; and in sucli case each party was i)ermitted
to bring farther evidence, and to make a reply to the specific
questions propounded by the arbitrator, such evidence and
replies to be immediately communicated by each party to the
other. To the same end it was stipulated that, in case the
arbitrator should find the topographical evidence laid before
him insuflicient for the i)urposes of a sound and just decision,
he should have the power to order additional surveys to be
made of any portions of the disputed boundary line or terri-
tory as he might think fit; and that such surveys should
be made at the joint expense of the contracting parties, and
should be considered as conclusive by them.
The ratifications of the convention were
^?'^1.^**^*^ exchanged at London on the 2d of April 1828.
It was carefully drawn, and its provisions were
ami)le for the purposes for which it was de-
signed. No stii)ulation was wanting to enable the arbitrator
to reach " a sound and just decision." As arbitrator the con-
tracting parties agreed on the King of the Netherlands,' who
duly consented to act.
The statements and definitive statements of
^**p!^ ^ * *^® contracting parties were duly submitted
to the arbitrator, those of the United States
being prepared by Mr. Gallatin, with whom was associated
lands Chosen as
Arbitrator.
» Am. State Papers, For. Rel. VI. 643.
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THE NORTHEASTERN BOUiNDARY.
91
n Pitt Preble, a citizen of Maine. Seldom has a qnea-
^en so thoroughly discussed as was this disjmted bound-
On Jantmry 5, 1838, a joint select committee of the
tuie of Maine made a report on it, which was very full
hiiustive,* Within three years, the unpnblished reports
X'uujents under the Treaty of Ghent having been cast
IS ^'so volnininous and complicated'' as to diaconrage
oration, new statemcntSj composed witii great ability
sirniug, were substituted for all that had ^one before.
Htateuicnts, which were |>rinted but not yiubti^hed, were
up in a volume of which there are only a lew cypies in
ice. In order to understand the case in its various
s as it came before the King of the Netherlands, it is
ary, in addition to the history of the com mission under
^ V. of the Treaty of Glient, which is narrated in the
ing chapter, to present a brief account of the origin of
estious at issue, and a Hummary of the f^tateuieiits sub-
by the contracting governments to the arbitrator.
It was the ilesign of the treaty of peiice of
f thalrettty j^7g;:j 1^^ leave the United States iu the posses-
*^*^* sion of the boundaries which properly belonged
m when they were colonies nnder the British Crowiu
esign was, as will hereafter be shown, the basij< of the
ion finally adopted; and it is therefore necessary, in
that the subject may be uudersto<jd, to recur to the
I acts in which the lines originated*
By the grant made by James I. to Sir Wil-
ffltSrwite. Ham Alexander on September 10, 1031, Nova
Scotia was bounded on the west by the river
nonly called ^L Croix," and from the most remote source
lug on its western side by an imaginary direct line toward
>rtli to the nearest ship road, river, or spring emptying
into the great river of Oaoada (the St, Lawrence), and
thence proceeding cast ward ly along the seashores of the
vev of Canada,'' along a course described* By a charter
'il 3, 1030, Charles I, granted to Sir Perdinando Gorges
rovince or county ijalatiue fvf Maine, which, botinded
e west by the River Piscataijua, extended uortlieast
the seacoast to the River Sagadahock, the name of the
fttin ftay» he d«voti^il nearly two yeiira to the (iiibjei't, bofttowing on
thiie than h« ever did on anj oth^r qiieetioa* (Adams's WritingB oX
n, ir.r>4IK)
Slate PapetSp Fot. ReL VL 89^-045.
Digitized by ^
92
INTERNATIONAL AEBITEATI0N8.
Kennebec below the confluence of the Androscoggin, and n
the Sagadabock to the "Kynybecky" (Kennebec) River, an
from thence aloug a described course. The territories include
in this grant were conveyed by Gorges to John Usher on Marc
13, 1677, and were by the latter conveyed on the 16th of tt
same month to the Massachusetts Bay Company.
It will be observed that between the ten
SagadahodL tories thus granted there is a region, lyin
between the St. Croix and the Kennebec, i
considerable dimensions. It is called on the old maps, inclu<
ing Mitchell's, Sagadahock, the name by which the lowi
waters of the Kennebec were desiguated. This region, whic
the name of Maine afterward came to include, was granted o
March 12, 1664, by Charles II. to his brother James, Duke <
York, by the description — "all that part of the maine land <
New England beginning at a certaine place called or knowi
by the name of St. Croix next adjoyning to New Scotland i
America and from thence extending along the sea coast into
certain place called Petuaquine or Pemaquid and so up tl
River thereof to the furthest head of ye same as it teudet
northwards and extending from thence to the Eiver Kinebeqi
and so upwards by the shortest course to the River Canad
northward.'' On the 29th of June 1674 the Duke of Yoi
obtained a confirmation of this grant from Charles II., and c
the accession of the Duke to the throne as James II. it wi
merged in the Crown. The reason for this confirmation ws
the fact that by the Peace of Breda of July 21, 1667, the KiE
of Great Britain agreed to restore to the King of France tl
territory of Acadia, or Nova Scotia, The confirmation affirmc
the fact that, according to the British view, Nova Scotia di
not extend to the westward of the St. Croix.
On the 7th of October 1691 William ar
^^'^^'ttL^^"^^" M^ry, Great Britain and France being then s
war, granted the charter of the province <
Massachusetts Bay. By this charter they *' will and ordaii
that the Territories and Colonyes commonly called or knowi
by the names of The Colony of Massachusetts Bay and Coloi
of New Plymouth the Province of Main The Territory calk
Accadia or Nova Scotia and all that Tract of Laud lyin
between the said territories of Nova Scotia and the said Pro'
inceof Main be united erected and incorporated. And WeeD<
by these Presents unite erect and incorporate the same ini
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r»
ir,
THE NortTHEASTEKN BUUNDABY.
93
tee of If ova
Scotia.
all Province by the nsime of Our Province of MasaacLu-
3iiy ill New Kiijjriaud,-' But by tbe Peace of Kyawiek ot'
liber 10, 1G97, Greafc Britaiti agreed to restore all places
France possessed before the declaratiou of war, France
g a reci pi ocal prora ise. By these reciprocal en g^agemen ts
tjcotia remaiiieil wti^h France, and was therefore excepted
the '-Province of Massachusetts Bay in Kew England,"
thiia comprised '' the Terr i tor ic;^ and Colony ea com tnoidy
or know lie by the nam en of The Colony of Massac huisetts
lid Colony of New Plymouth the Province of Main • ♦ *
1 tliitt Tract of Land lying between the said territories
va Bcotia and the said Province of Main,"
By the Treaty of Utrecht of March 31, ITl^l,
Nova Bcotia or Acadia was retroceded by
France to Great Britain, but it was not re-
to the province of Massachusetts Hay, being erected
separate province. The commission of its first governor,
rd Phillips, issued September 11, 1710, mei^ely tlescrtbes
he *' province of Nova Scotia or Accadie in Anierica.*'
inie words are preserved in the commissions of the gov-
i (^f the province down to 17t>l,
In 17ftl a uioTnen toils change took plat^e in
the territorial possessions of the European
|>owers in America, By the Peace of Paris
lOtli of February between Fram^e, Oreat Britain, and
, not only did Nova Scotia or Acailia rest under Brit-
vereifirnty, bat Canada, the island of Cajte Breton, and
I islands and coasts in the gulf and river 8t. Lawrence
i under the same dominion and were lost to the French
I, largely as the result of the exertions of the British
sts in America. It now became necessary to provide
imeuts for the new possession s^ and in so doiug atten-
as naturally paid to boundaries.
By a royal proclamation of Ot^tober 7, 1763,
establishing a government for the province
r of Fam of
1763.
ImitDt of the
Be of Quebec,
of <incbec, the boundary of that province is
bed as a line drawn from the south end of Lake Nipissin
the liiver St Lawrence and Lake Champlain in forty-
egrees of north hititnde, and '^ along the Higli Lands
divide the Kivers that empty themselves into the said
St* Lawrence from those which fall into the Hea and also
the North Coast of the Bay des Chaleurs and the coast
P
Digitized b
94
INTEKNATIONAL AEBITBATI0N8.
i4
of the Gulph of St. Lawrence to Cape llosieres." By the ac
of 14 Geo. III. cap. 83 (1774), "for making? more effectual pro
visiou for the Government of the Province of Quebec,^ tin
province is "bounded on tlie South by a line from the bay o
Chaleurs, along the highlands which divide the rivers tlia
empty themselves into the river St. Lawrence from those whicl
fall into the Sea, to a point in forty-five degrees of north lati
tude, on the eastern bank of the river Connecticut, keeping
the same latitude directly west." The location and the reasoi
of this boundary are quite clear. The object was to include ii
the province of Quebec, to which the French population wa
confined, the basin of the St. Lawrence, which was already
partly inhabite<l by persons of that race. It included in th(
province of Quebec that basin and the country north of th(
Bay of Chaleurs.
Having ascertained the boundary estab
^"^wti^' ^""^^ ^^^^^^ ^y *^® British Government for the prov
ince of Quebec, let us turn again to Novj
Scotia, which originally extended, as we have seen, to the Bive
St. Lawrence. On the 21st of !N'ovem])er 17G3, six weeks afbe
the publication of the royal proclamation in regard to Quebec
a commission was issued to Montague Wilmot as governor o
Nova Scotia. By this commission it is provided that th<
province of Nova Scotia "shall be bounded" to the northwan
"by the Southern Boundary of our Province of Quebec as fa
as the western extremity of the Bay des Chaleurs," and to th^
eastward " by the said Bay and the Gulf of St. Lawrence.
To the westward it is said that, " although our said proving
hath anciently extended and doth of right extend as far as th<
river Pentagonet or Penobscot It shall be bounded by a lin<
drawn from Cape Sable across the entrance of the Bay o
Fundy to the mouth of the Biver St. Croix by the said rive
to its source and by a Line drawn due North from thence to th(
Southern Boundary of our colony of Quebec." The scheme o
these boundaries is exceedingly simple and definite, and is se
forth, as it was understood at the time, on a map in Dodsley'
Annual Register for 1763.
Such were the British definitions of the boundaries when ii
1782 the American and British plenipotentiaries entered a
Paris on negotiations for a treaty of peace. Let us examine
now, the instructions of the American plenipotentiaries an<
trace the course of the negotiations.
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THE NOKTHEA8TERN BOUNDARY.
95
Oil tlio 14th of Augftist 1T79, mx weeks \m
Icm of Con- ^^^.^, ^y^^ clioice of a minister, OongreSi* adopted
°^tB^*u2 itistr net ions for a treaty of peace with Greiit
Britain* In these iustracHoits the boundaries
llnifceil Statea were ileUued a8 follows ;'
le boundaries of these Stiites are as follows, viz ; Tbeee
[ ate bouuded uortlij by a line to be drawn from the
wG^t angle of Nova Scotia alfnipt tliei highlands whieh
h those livers whieh empty themselves into the river St,
iHce, froTn those whieh fall into the Atlantic oeeaii, to
r til western moBi head of Conneetieut Kiver; theiiee down
the middle of that river to the forty iifth degree of north
le; thenee due west in the latitude forty-five degrees
from the equator to the north westernmost side of the
St, Lawrence or Cadaraqui; tlienee straight to the south
f NeiiisBing; and thenee straight to the source of tlie
Mississippi: we^t, by a line to be drawn along the mid-
the river Mississippi, from its source to where the said
hall intersect the thirty tirst degree of north latitude:
^ by a line to be drawn due east from the terminatiim of
ne' last mentioned in the latitude of thirty^one degrees
from the equator to tlie middle of tlie river Appahichi-
)V Uatahouchi j thenee along tlie mid<lle thereof to its
on with the Flint Kiver; thence straight to the head of
ary's River; and tlienee down Jilong the middle of St.
s River to the Atlantic oceau: and east, by a line to be
1 along the middle of St. John's river from its source to
rjiith in the bay of Fundy, comprehending all islands
1 twenty leagues of any part of the shores of the United
ij and lying betweeti lines to be drawn due east from the
i where the atbresaid boundaries between Kova Scotia on
le part, and Bast Florida on the other part, shall reapec-
touch the bay of Fnndy and Atlantic ocean, ^
By these instructions it is to be observed
"At «^^^« ii^^f^ ^i^^ Unttetl States are said to be bounded
ou the north "by a line ta be drawn from the
west angle of Nova Scothi along tlie liighlands which
b those rivers whieh empty themselves into the river St.
snce, from those whieh fall int4> the Atlantic oeean,^* and
[^ east '* by a line to be drawn along the middle of St.
s river from its source t-o its mouth in tlie bay of Fundy,''
lescriptiou here given of the ''highlands^* which form
»rtherii boundary of the IJnitt^d States, diliers from the
ptiou given in the CJuebee proelamatioti and the Quebec
r«t JtMiruiilw uf CiJi»j?n»N», Ktir, Alt, IL 225-22G; Aim. Stat© Ptiperij
>L VL 86ti| VVhartuii'a Dip. Uor. Am* Urn, ill. 301.
Digitized t
96
INTERNATIONAL ARBITRATIONS.
act of tbe " highlands " which form the southern boundary ol
that province, only in the use of the term "Atlantic Ocean''
instead of the term "sea." In the proclamation and act ol
Parliament the description is "the highlands which divide the
rivers that empty themselves into the river St. Lawrence, from
those which fall into the Sea."
The point from which the boundary of the
Hor^wwtA^ieof ^^.^^^ States was to be drawn along the
Hova Sootia.
"highlands" was designated in the instruc
tions as the "northwest angle of Nova Scotia;" and thij
angle obviously was formed by the contact of the eastern
boundary of the United States, which was also the west-en
boundary of Kova Scotia, with the "highlands" running west
ward from the Bay of Chaleurs and forming in part tht
northern boundary of the United States and of Nova Scotis
alike. But how was it that the "source" of the St. Johi
could form such an angle! This question may be answered bj
looking at Mitchell's map, on which the Kiver St. John, when
it strikes the due north line from the source of the St. Croix
branches to the north as well as to the west, the northeri
branch finding its origin in a body of water called Lak<
Medousa, which lies on the same due north line, close by th<
head waters of streams falling into the River St. Lawrence
Here evidently was the " northwest angle of Nova Scotia'
mentioned in the instructions.
For the boundaries above outlined, and al
Final Li8tructioii§ of ^1^^ countries and islands Iving within them
the representative of the United States wai
instructed strongly to contend; but he was authorized, if tin
line to be drawn from the mouth of Lake Nepissing to th<
head of the Mississippi could not be obtained without con
tinning the war for that purpose, to agree to some other Mm
between that point and the Mississippi, provided no part of i
should be south of the forty-fifth parallel of north latitude
In like manner he was also empowered, if the eastern bound
ary as described could not be obtained, to agree that it shouk
be adjusted by commissioners " according to such line as shal
be by them settled and agreed on as the boundary betweei
that part of the State of Massachusetts Bay, formerly caUe<
the Province of Maine, and the colony of Nova Scotia, agree
ably to their respective rights."
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THE NORTHEASTERN BOUNDARY. 97
On the 15th day of Jane 1780 Congress adopted final in-
structions to Adams, Franklin, Jay, Laurens, and Jefi'erson,
who had been chosen as peace commissioners, in which they
were authorized " to secure the interest of the United States
in such a manner as circumstances may direct, and as the state
of the belligerent and the disposition of the mediating x>owers
may require," " provided that Great Britain be not left in
possession of any part of the Thirteen United States."*
On the 16th of August 1782 a special com-
^^mmitt»r^ mittee consisting of Messrs. Carroll, Randolph,
and Montgomery made a report to Congress of
certain facts and observations, which they recommended should
be referred to the secretary for foreign affairs, to be by him
digested, completed, and transmitted to the plenipotentiaries
for negotiating a peace, for their information and use. In this
report the historical facts of the boundary are reviewed, and it
is said that the country called Sagadahock ^^cannot be proved
to extend to the river St. John as clearly as that of St. Croix."
It is stated, however, that in the altercation between France
and Great Britain in 1751 the southwest boundary of Nova
Scotia was asserted by the latter to be the Pentagonet or Penob-
scot River.* Indeed, the chief if not the only uncertainty in
regard to the confines of Nova Scotia, apart from that due to a
lack of topographical knowledge, grew out of the rival claims
pat forward by France and Great Britain with a view to
enlarge their respective boundaries and limit each other's
possessions.
When negotiations for a treaty of peace be-
Hegodadons at ^^^^ ^^^ United States and Great Britain
Pans.
were begun at Paris in the summer of 17S2,
Adams was detained in the Netherlands, Laurens ha<l re-
signed his commission, and Jefferson had declined to serve.
The United States were therefore represented by Franklin
and Jay; Great Britain by Richard Oswald. On the 8th of
October 1782, the very day on which Adams triumphantly
concluded a treaty of amity and commerce and a convention
' Wharton'8 Dip. Cor. Am. Kev. IV. 504-505.
'^ Secret Journals of Congress, Foreign Ait'airs, III. 161-171. See a report
of the legislature of Massachusetts of October 27, 1781, laid before Con-
gress November 17, 1781, on boundaries. (Am. Stjito Papers, For. Rel. VI.
866.) See, also, Livingston to Franklin, January 7, 1782, Wharton's Dip.
Cor. Am. Rev. V. 87-97.
5627 7
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98 INTERNATIONAL ARBITRATIONS.
concerning recaptures with their High Mightinesses the States
General of the United Netherlands, the peace coramissionert^
at Paris agreed on certain articles in the first of which the
boundaries of the United States were defined in accordance
with the American commissioners' claims — on the north hy
the highlands, from the northwest angle of Nova Scotia to the
Connecticut Iliver; from the Connecticut to the St. Lawrence,
by the forty-fifth i)arallel of north latitude; from the St. Law
rence by a straight line to the south end of Lake Nepissing,
and thence to the source of the Mississipju ; and on the east
by a line to be drawn along the middle of the St. John Kivei
from its source to its mouth in the Bay of Fundy. The fol
lowing note, however^ was added to the articles: "Alteratioi
to be made in the treaty respecting the boundaries of Novt
Scotia, viz: East, the true line between ^vhich and the Unitei
States shall be settled by commissioners as soon as con
veniently may be after the war.''^ Oswald sent the article!
thus amended to his Court for approval. "He thinks the]
will be approved there," wrote Franklin, "but I have som<
doubts. In a few days, however, the answer expected wil
determine. By the first of these articles the King of Grea
Britain renounces for himself and successors all claim an<
pretension to dominion or territory within the thirteen Unite(
States; and the boundaries are described as in our instrnc
tions, except that the line between Nova Scotia and Ncd
England is to be settled by commissioners after peace.''*
Franklin's augury proved to be correct. After several week
the articles were returned by Mr. Strjichey, an under secrc
tary, who was evidently charged to correct Oswald's yieldinj
disposition. By this time John Adams had arrived from th
Netherlands and assumed the functions of a peace commit
siouer. On October 30 and the three following days the negc
tiators held formal conferences, at which Oswald was assists
by Strachey and also by a Mr. Roberts, a clerk from the oflSc
of trade and plantations, who endeavored to argue away th
limits of Massachusetts.^ Adams was prepared to maintaii
the claim of Massachusetts to the St. Croix, but not beyond it
1 Wharton's Dip. Cor. Am. Rev. V. 806-808.
2 Franklin to Livingston, Sec. of For. Aff., Oct. 14, 1782, Wharton's Dij
Cor. Am. Rev. V. 811.
'Adams to Livingston, Sec. of For. Aff.. Oct. 31, 1782, Wliarton'8 Oij
Cor. Am. Rev. V. 839; Amory's Life of Sullivan, I. 311.
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THE NORTHEASTERN BOUNDARY. 99
believing that to be the true eastern boundary. On the 5th of
November Strachey returned to England with new articles
that had been agreed on.' In these articles the American com-
missioners, accepting the line described in the commission of
JVEontague Wilmot, governor of Nova Scotia, in 1763, as the
western limit of that province, agreed to take the St. Croix
Eiver and a line due north from its source as the eastern
boundary, up to the x>oint where it intersected the highlands
dividing rivers falHng into the Atlantic Ocean from those
emptying themselves into the River St. Lawrence. From this
X>oint, which was designated as the northwest angle of Nova
Scotia, the boundary followed the highlands down to the
northwesternmost head of Connecticut River, and, proceeding
down the middle thereof to the forty-fifth parallel of north lati-
tude, followed that parallel to the Mississippi.'^ It was, how-
ever, left optional with the British Government to substitute
for the forty-fifth x)arallel in a i>art of its course a line through
the middle of the Great Lakes.'' All the lines here referred to
were marked on a map, and it was, says Fitzmaurice,^ " the
loss of this map, with the line marked out as finally agreed
upon, which led to the difficulties terminated in 1842 by the
Ashburton Treaty '^ — the difficulties we are now discussing.
To the "loss" of this map we shall advert hereafter.
The British ministry, while not approving
*°*Tp ^ * *^® ^i^i^s proposed for the boundaries, decided
to close the negotiations rather than, by de-
laying a settlement till after the assembling of Parliament,
incur the risk of bringing before that body the various (jues-
tions at issue, and especially that of compensation for the
loyalists.^ They therefore dispatched Strachey to Paris with
a new set of articles, in which the alternative offer of a line
through the middle of the Great Lakes was adopted, the rest
I Wharton's Dip. Cor. Am. Rev. V. 845, 8.-31-852; VI. 112.
« Wharton's Dip. Cor. Am. Rev. V. 851.
3 Adams to Livingston, Sec. of For. Aflf., November 6, 1782, Wharton's
Dip. Cor. Am. Rev. V. 856. See, also, Id. 872-873, 875-876, 878; VI. 47;
Fitzmaurice's Life of Shelbiirne, III. 294. "I despatch," wrote Strachey
to the British ministers, "the bonudary line originally sent to you by Mr.
Oswald and two other lines proposed by the American Commissioners
after my arrival at Paris. Either of these yon are to choose. They are
both better than the original line, as well in respect to Canada, as to
Nova Scotia.'* (Fitzmaurice's Life of Shelbnrne, III. 294-295.)
*U{e of Shelburne, III. 295.
» Wharton's Dip. Cor, Am. Rev. VI. 72.
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100 INTERNATIONAL ARniTRATIONS.
of the boiiiularies remaiiiingf as previously settled at Paris.
The new artieles, which were coinmiinicated by Oswald to the
Aiiieriean cominissioners at a conference on the 25th of Novem-
ber, ended the discussion as to boundaries.' The article on
that subject was embodied as Article II. in the provisional
articles of peace which were signed November 30, 1782, and
which were made definitive September 3, 1783.2
In 1784 the British Crown took from Nova
Erection of Provmce g^^^j^^ ^ j^.^^ ^,^^^ ^^ j^^ territory which has since
of Kew Bnmswiok. * *'
formed the province of New Brunswick. In
the commission of Thomas Carleton as captaiu-g^eneral and
governor- in-chief of New Brunswick of August 10, 1784, the
new province is '4)ounded on the westicard by the mouth of
the River Saint Croix by the said liiver to its source and by a
line drawn due north from theuce to the southern boundary of
(mr province of (Quebec to the northward by the said boundary
as far as the western extremity of the Bay des Chaleurs." The
same language is employed in commissions to Carleton's suc-
cessors in 1807, 1811, 181G, 1818, and 1810.
By the act of 31 Geo. III. cap. 31 (1791), and
^'™orQue^^'' the order in council of August 24, 1791, the
l)r()vince of (Quebec was divided into Up|)er
and Lower Canada, the latter retaining so far as it extended
the southern limits of the x)rovince out of which it was fonued.
Such is an outline of the history of the boundaries in regard
to which the King of the Netherlands was called upon to render
a decision.
In the American statement laid before the
Ameiicaii Statement ^.^bitrator the case was treated under three
before the Arbitrator.
heads :
1. The northwest angle of Nova Scotia and the highlands.
2. The northwesternmost head of Connecticut liiver.
3. The boundary line fnmi the Connecticut Biver, along the
forty-fifth parallel of north latitude, to the Biver St. Lawrence,
called in the treaties Iroquois or Cataracjuy.
As to the first (juestion, it was declared that
'ffiffW^ds ^ the fundamental point was the highlands. It
was there that the northwest angle of Nova
Scotia must be found. It must be formed by the intersection
'Wharton's Dij). Cor. Am. Rev. VI. .72, 74.
"Adams, Franklin, and Jjiy to Livingston, Sec. of For. Afl*., Dec. 14, 1782,
Wharton's Dip. Cor. Am. Kev. VI. 131-133.
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THE NORTHEASTERN BOUNDARY. 101
of the lines constituting? tlie northern and western boundaries
of Kova Scotia. The highlands contemplated by the treaty
were highlands which, at a point due north from the source of
the River St. Croix, divided rivers falling into the Atlantic
Ocean from those emptying into the liiver St. Lawrence; high-
lands extending eastwardly from that point (the northwest
angle of Nova Scotia), and continuing for some distance in
that direction to divide waters in tlie same manner, vso as to
form there the northern boundary of Nova Scotia; highlands
extending, also, south west wardly from the same i)oint, and
dividing rivers in the same manners all the way to the north-
westernmost head of Connecticut River. In the treaty the
term "highlands" and the words "highlands which divide
the rivers" were inseparable. Avoiding the words mountains,
hills, or other terms which might have referred to the peculiar
nature of the ground, the treaty used the general expression
highlands as applicable to any ground along which the line
dividing the rivers should be found to pass. The mere fact
that such ground was necessarily UKu-e elevated than the riv-
ers and the country adjacent to their banks entitled it to the
designation of highlands.
There were only two plaices, said the Ameri-
HortiiwertAngle of ^.^^ statement, on the line due north from the
Kovft BootiE.
source of the St. Croix which divided rivers
thus falling in different directions, and in which those rivers
had their respective sources. About 97 miles from the source
of the St. Croix the due north line reached a ridge or high-
land which divided the tributary streams of the liiver St. John,
which falls into the Bay of Fundy, from the waters of the
River Restigouche, which falls through the Bay of Chaleurs
into the (iulf of St. Lawrence. In its farther north course the
same line, after crossing several upi>er branches of the Res
tig(mche, reached, at a distance of abont 144 miles from the
source of the St. Croix, the highlands '.vhich divide the waters
of the Restigouche from the tributary streams of the Kiver
Metis, which falls into the River St. Lawrence. There was,
declared the American statement, no possible choice but be-
tween these two places. The northwest angle of Nova Scotia
must of necessity be found at one or the other.
The selection between these two places evi
^"ocean"*" ^ dcntly depended, said the Americ^au statement,
upon what the treaty meant by rivers that
empty themselves into the River St. Lawrence and by rivers
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102
INTERNATIONAL AKBITRATIONS.
that fall into the Atlantic Ocean. The first class embrace
only the rivers flowing into a specially designated river, an
obviously could not be so construed as to include any river
that did not empty themselves into the river thus designatec
It must be inferred that all the rivers met by the due-nort
line which did not actually empty themselves into the Rive
St. Lawrence were by the treaty considered as falling int
the Atlantic Ocean.
This conclusion, said the American statement, perfectl
accorded with what was generally understood by the ten
"Atlantic Ocean." The term "sea'Mn its general sense en
braced the whole body of salt waters. Its great subdivision
were designated by the names Atlantic Ocean, Pacific Oceai
etc. Each of them generically embraced all the bays, gulfj
and inlets formed by the indentures of its shores or by ad jj
cent islands. In the case under consideration not only wa
the generic appellation "Atlantic Ocean" contrasted with th
River St. Lawrence alone, but every river which could hav
been contemplated by the framers of the treaty as falling int
the Atlantic Ocean fell into it through some intermediat
gulf or bay known— and in Mitchell's map specifically desij
nated — by a distinct name; as, for example, the River Rest
gouche, through the Bay of Ohaleurs and the Gulf of Si
Lawrence; the River St. John, through the Bay of Fund}'
the rivers Magagnadavic and Schoodiac, through the Bay <
Passamaquoddy and the Bay of Fundy ; the Penobscot, throng
the bay of the same name; the Kennebec, through the Sagi
dahock Bay; and the Connecticut Hiver, through Long Islan
Sound. So that if the rivers which fell into the Atlanti
Ocean through a gulf, bay, or inlet known by a distinct nam
were not under the treaty of 1783 rivers falling into the Atlai
tic Ocean, there was not a single one that could have bee
contemplated by the treaty to which the description appliec
The mention of the Gulf of St. Lawrence once by its specia
name in another portion of the treaty relating to the fisherie
could not narrow the meaning of the words "rivers fallin
into the Atlantic Ocean." The northwest angle of Nova Sec
tia was therefore formed by and determined to be at the intei
section of the line drawn due north from the source of th
River St. Croix with the highlands dividing the tributar
streams of the Restigouche, which falls into the Atlanti
Ocean, from the tributary streams of a river emptying itse!
■^
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THE NORTHEASTERN BOUNDARY. 103
iuto the Biver St. Lawrence, and presumed, according to the
map A, to be the River Metis.
The American statement next discussed the
^1^^^ qaestiou of the ancient provincial boundaries,
and, maintaining that the ancient boundaries
were preserved by the treaty of peace, endeavored to prove that
the line of the treaty was the same as that which had for twenty
])reoeding years been assigned by the British Government to
Nova Scotia. The only object in mentioning the northwest
angle of Nova Scotia was, said the American statement, to
identify the highlands described in the proclamation of 1763
and the act of 1774 as the southern boundary of the province
of Quebec with the highlands contemplated by the treaty of
1783 as forming on the north the northwest angle of Nova
Scotia. The only difference was that the rivers intended to be
distinguished from those emptying into the River St. Law-
rence were described in the proclamation and the act as falling
into the "Sea," while in the treaty they were described as
falling into the "Atlantic Ocean."
In order to show that the line claimed by the
^ 1788 ^ United States coincided with the ancient pro-
vincial boundaries, there was exhibited with
the American statement a large number of maps published
between 1763 and 1783, in which the highlands forming the
southern boundary of the province of Quebec appeared to be
identical with those claimed by the United States as their
northern boundary. In these maps the course of the line from
the source of the St. Croix is in every instance northward,
crosses the River St. John, and terminates at the highlands in
which the rivers that empty into the River St. Lawrence
have their sources; and in every instance tlie northwest angle
of Nova Scotia is laid down on those higlilands, where the
northern line terminates. Four maps published in London
between the signing of the preliminary and the definitive
treaty of peace between Great Britain and the United States
showed the same lines.
As to Mars Hill, the American statement said
Kan WXL that it neither divided nor was near any waters
but some small tributary streams of the River
St. John; that it was at least a hundred miles distant from the
source ot any of the rivers emptying themselves into the River
St. Lawrence; that no highlands extended or could extend east-
Digitized by LjOOQIC
104
INTERNATIONAL ARBITRATIONS.
wardly from it so as to form the northern boundary of Nova
Scotia; that to couteud for it was to claim that Nova Scotia
had no northwest angle, and that toward the west the British
line could fulfill the conditions of the treaty only from the point
where, 115 miles in a straight liue from Mars Hill, it divided
the northwestern source of the Penobscot from the source of
the Chaudiere.
As to the northwesternmost head of Con-
Horthwesternmost uecticut Eiver, the American statemeut said
Hea4 of Connecti- ^^^^ ^^^^ ^^^ branches of that river, which
cut River. '
were imperfectly known in 1783, had been sur-
veyed by order of the commissioners under Article V. of the
Treaty of Ghent. Fourof them were found to have their sources
in the highlands, namely. Halls Stream, Indian Stream, Perrys
Stream, and ]\iain Connecticut, or main stream of Connecticut
River. From its peculiar chara€teristic the last branch might
be called the Lake Branch or Stream. Indian Stream, Perrys
Stream, and the Lake Stream all united about two miles north of
the forty-fifth parallel of north latitude, and thus united they
were known at the date of the treaty of 1783 by the name of
Connecticut liiver at the place where the river was then sup-
posed to cross that parallel. The mouth of Ualls Stream,
already known by that name in 1783, was about a quarter
of a mile south of that place, but half a mile north of
the point which, from later and more correct observations,
appeared to be in latitude 45°. The source of the luiddle
branch of Halls Stream was the northwesternmost head of all
the branches above mentioned, and it had accordingly been
claimed by the United States as the true northwestern head
contemplated by the treaty; but the commissioner of the
United States under the fifth article of the Treaty of Ghent
held that the head of the west branch of Indian Stream was the
true northwesternmost head of Connecticut River intended by
the treaty. The British commissioner claimed that the source
of the northwesternmost brook which emptied itself into the
upper lake of the most eastern branch, being that designated
as the Main Stream or Lake Stream of Connecticut River, was
the northwesternmost head contemplated by the treaty. He
based this claim principfilly on the ground that this branch
was in fact the main branch of Connecticut River, and had for
an indefinite length of time been exclusively distinguished by
that name. This allegation was denied by the United States.
>
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THE NORTHEASTERN BOUNDARY. 105
But, assaming it to be troe, the American stateineut contended
that the use of the term "north western most," which necessarily
implied that more than one head was contemplated, and that
the selection was to depend neither on the size nor the name
of the branch but on its relative situation, iiroved that no
branch, even though emphatically called the main branch, was
entitled to exclude any other as the ''head of the river." The
upper branches of Connecticut River north of the forty-fifth
parallel were not laid down correctly on Mitcheirs map, nor
were any of the branches distinguished on it by a special name.
The fair inference was that the most westerly branch north of
the forty fifth parallel was the source intended.
The reason why the commissioner on the part of the United
States under Article V. of the Treaty of Ghent decided in
favor of Indian Stream to the exclusion of Halls Stream was,
said the American statement, that the boundary line between
the provinces of New York and Quebec had been surveyed in
1 772 from Lake Champl?in to Connecticut River, along the forty-
tifth parallel of north latitude, and that according to that sur-
vey Halls Stream, which then received its distinctive name, w as
understood to unite itself with the main river just south of the
forty-fifth parallel. The commissioner on the part of the United
States conceded that the boundary line where it met the forty-
fifth parallel must be in the middle of the stream which at that
point was, prior to the treaty of 1783, recognized as the main
Connecticut River. It had been shown that this argument was
not conclusive, but, should it prevail, Indian Stream, which was
free from all objections, and the whole course of which was
north of the forty-fifth parallel, must be considered as the north-
westernmost head of Connecticut River contemplated by the
treaty.* It must also be observed, said the American state-
ment, that the exi)ression ''north westernmost" was restrained
by the provisions of the treaty to a head which had its source in
the " highlands." The northwesternmost brook which em])tied
itself into the upper lake of the lake branch, and which was
claimed by Great Britain as the northwesternmost head of the
river, had its source, not in the highlands which divided rivers
emptying themselves into the River St. Lawrence from rivers
falling into the Atlantic Ocean, but in a highland which divided
^ Mr. Gallatin thougl^t it safer to insist on Indiiin Stream, thoagh on map
A he had laid down Halls Stream as the boundary claimed by the United
States. (Adams's Writings of Gallatin, II. 406.)
Digitized by LjOOQIC
106
INTERNATIONAL ARBITRATIONS.
two rivers falling into the Atlantic Ocean. With respect to
the highlands specified in the treaty, the soorce claimed by
Great Britain was, said the American statement, the north-
easternmost head of the river.
As to the boundary westward from the
Foi^-Mth Parallel Connecticut River to the St. Lawrence, the
of Horth LaUtade. , . . , , , , .
American statement said that by an order in
council of July 20, 1704, the Connecticut River was declared
to be the boundary between the provinces of New York and
New Hampshire from the northern boundary of the province of
Massachusetts Bay to the forty-fifth degree of north latitude.
On August 12, 1768, this parallel was confirmed as the boundary
between the provinces of New York and Quebec. Between
the years 1771 and 1774 the line was surveyed and marked; it
was completed in October 1774. It had ever since been the
basis of jurisdiction and of grants of land, and at the time of
the treaty of peace it was established and in full force. Never-
theless, the Treaty of Ghent declared that the boundary from
the source of the St. Croix River to the River St. Lawrence
had not been surveyed, and, according to the observations of
the astronomers under that treaty, the forty -fifth parallel
appeared to be about three-fourths of a mile south of the old
line both on Connecticut River and Lake Champlain, though
it coincided with that line on the River St. Lawrence. It was
submitted whether it was not the true intention of the Treaty
of Ghent that the boundary should be surveyed only where it
had not already been run and markeil, and whether the line
formerly surveyed and established between the provinces of
Quebec and New York was not, within the true intent and
spirit of the same treaty, excepted from the provision which
directed the boundary to be surveyed.
The British statement, like that of the
United States, discussed the case under its
Britiih Statement be-
fore the Arbitrator.
three general heads:
1. The northwest angle of Nova Scotia.
2. The northwesternmost head of Connecticut River.
3. The line to be drawn from the Connecticut River along
the forty-fifth parallel of north latitude to the River St. Law-
rence, called in the treaties Iroquois or Cataraquy.
Great Britain, it was said, ''contends that
^'''v^Ts^l^''^ the point thus described (as the northwest
angle of Nova Scotia) is found at or near an
elevation called Mars Hill, which is situated in a due-north line
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THE NOBTHEASTERN BOUNDARY. 107
drawn from the source of the St. Croix River and south of the
River St. John; that the highlands intended by the treaty are
those extending from that i)oint to the Connecticut River; and
that the rivers Penobscot, Kennebec, and Androscoggin are
the rivers falling into the Atlantic Ocean which are intended
by the treaty to be divided from the rivers which empty them-
selves into the river St. Lawrence.''
The highlands claimed by the United States,
Ocean'' ^^ ^^® British statement, at the point where
they were intersected by a line due north from
the source of the St. Croix, and for some distance westward,
divided waters emptying into the River St. Lawrence from
waters flowing into the Bay of Chaleurs and the Gulf of St.
Lawrence, or else through the River St. John into the Bay of
Fundy, while the highlands referred to in the treaty were said
to divide waters flowing into the River St. Lawrence from those
flowing into the "Atlantic Ocean.'' This was, said the British
statement, "the cardinal point of the whole of this branch of
diflTerence." ' The highlands must divide waters flowing into
> Tbc origin of this point, which indeed was sure to be rnised in any
close and minute controversy on the subject, may be definitely traced. It
was first raised under Article V. of the treaty of 1794. In a letter to Mr.
Chipnian, the British agent nnder that article, of November 9, 17i)6, Mr.
Barclay, the British commissioner, said: "There is another i)oint which I
am endeavoring to ascertain, which if it turns out as I have reason to believe
it will, must be decisive in our favor.— The lino from the Source of the St.
Croix you will recollect, is by the Treaty of Peace to run 'due North to tbe
HighlandH which divide those Rivers which fall into the Atlantic Ocean
from those which fall into tho Rirer St, Laurence.* Now by an inspection
of Capt. Spronles Map it appears to me, that a line drawn due North from
the source even of the Cheputnaticook will strike the River Restigouche
which runs into the Bay of Chaleurs, and of course /a//8 into the Gulph of
Saint. Lawrence; such a line therefore will not answer tho description of
the Treaty, much less will a line drawn from the Source of the Magagua-
davic or any other source eastward of the Source of the Cheputnaticook, —
but a line drawn due north from the Source of the Scoodiac will run to the
westward of the sources of all the Rivers that fall into the Gulph of St. Laic-
rence, and will of course extend to the Highlands mentioned. — The idea
was first hinted to me by Mr. Owen. I have communicated it to Governor
Carleton, and requested that he will have the line run this winter due
North from the source of the Cheputnaticook to see where it will strike
and that we may have evidence of the fact if it proves to be in our favor : —
and if it should not, I think such a line must be run hereafter from the
Source of the Magaguadavic, as I am satisfied that it will upon this prin-
ciple, clearly show that this cannot be the river. Let me know your opin-
ion of this hint. I think we should at jiresent keep it secret, I have
intimated as much to the governor." Mr. Barclay recurs to the point in a
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108
INTERNATIONAL ARBITRATIONS.
' iH'
the River St. Lawreuce from waters falling not into the Gulf of
St. Lawrence or the Bay of Fundy, but into the Atlantic Ocean.
That the Bay of Fundy was not intended to be comprehended
in the Atlantic Ocean was, the British statement maintained,
shown by the treaty itself, which in the article in question spe
cifically distinguished them by describing the mouth of the St.
Croix River as being in the Bay of Fundy. It was also the con-
stant usage of geographers to apply specific names to branches
or inlets of the sea for the purpose of presenting them as objects
of distinct and separate consideration. In Mitchell's map and
in many public documents the Bay of Fundy and the Gulf of
St. Lawrence were distinguished from the sea or ocean.'
The original intent of the treaty, said the
'^^oMTM^^*^ British statement, was not to include the St.
John in the class of rivers falling into the
Atlantic Ocean. The River St. Croix, which was described
as having its mouth in the Bay of Fundy, was assigned as the
extreme eastern limit of the United States. From the north
west angle of Nova Scotia the whole line was to be traced
westward. It was intended at this initial i)oint of the bound-
ary to divide from each other at their sources the several great
rivers assigned to each power. The only rivers that could
have been intended tx) be divided by the highlands were those
which emptied themselves between the meridian of the St. Croix
eastward and of the head of the Connecticut River westward,
thus securing to each power the whole of each river emptying
within its territory. The line contended for by the United
States would divide the St. John in the middle of its course.
Moreover, there was, the British statement maintained, irre-
fragible proof that the negotiators of 1782, and especially the
American, had no thought of including the St. John among
letter to Mr. Hammond of November 20, 1796. (Rives's Corn'spondence of
Thomas liarclay, 68, 70.) Mr. Cbipmau, as "we have seen, argued the ques-
tion before the commissioners, Mr. Sullivan, the American agent, replying.
(.Suj>ra, Chapter I.)
'This same argument was used by Mr. Blaine, though with greater
difficulty, in the Bering Sea correspondence. In the treaty between the
United States and Russia of April 17, 1824, the langnage of which was
then in question, it was provided that the citizens or subject's of the con-
tracting parties should be neither disturbed nor restrained, either in navi-
gating or in fishing, or in the power of resorting to the coasts, **in any
part of the Great Ocean, commonly called the Pacific Ocean or South
Sea." The British statement under the convention of 1827 did not, how-
ever, deny that the Bay of Fundy was a ''part" of the Atlantic Ocean,
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THE NORTHEASTERN BOUNDARY.
109
9 rivers which were designated as falliug into the Atlantic
lean. Referring to the instructions of Congress of August
, 1779, the rejection by the British Government of the line
the St. John, and the subsequent reduction of the boundary,
3 British statement, tacitly assuming that the westerly
anch of the St. John on Mitchell's map was the St. John
^nded in the instructions, declared that no claim was ever
Kle by the United States from first to last to any territory
rth of it, and that, when the original plan was abandoned
d a new and more contracted line adopted, the boundaries
opted must have lain within the line of that river,
liti of Mawachu- I'he British statement also endeavored to
BttsBay: Fief of show that the limits of the province of Mas-
Udawaska. sachusetts Bay never extended to the line
kimed by the United States. The fief of Madawaska, which
LS within that line, was, said the statement, originally
anted in 1G83, eight years prior to the charter of Massachu-
:t8 Bay, to a British subject by the governor of Canada,
lich was then a French province. The province remained
bject to France till 1763. During that entire period the fief
Madawaska had preserved its individuality under the orig-
il grant, and had always been within the jurisdiction of
Canada. Moreover, the Madawaska settle-
ment, though.it was a totally ditt'erent thing
from the fief of Madawaska, being a modern
lony planted subsequently to 1783, was also within the line,
d was in the de facto possession of Great Britain, In the
icial census of the United States of 1810 no mention was
wie of it. In 1820 it was included, but it was stated in the
jsus that the inhabitants "supposed they were in Canada."
Referring to the term ''highlands," the Brit-
»rm '< Highlands.'* ish statement contended that it signified not
lands which merely divided rivers flowing in
posite directions, but high and elevated lands which, though
ey need not constitute an absolutely unbroken and continuous
Ige, must display a generally mountainous character. Under
Is view Great Britain maintained that the point called Mars
ill was the point of departure of the highlands, both because
its elevated character and because it was the first real eleva-
m met by the due-north line from the source of the St. Croix
ver. The surveys under Article V. of the Treaty of Ghent
d, said the British statement, established the fact that a
nerally hilly country extended from that point toward the
adawaska SetUe-
ment
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110
INTERNATIONAL ARBITRATIONS.
eastern branch of the Penobscot, connecting itself with a
mountainous tract of country which was well known in 1782
and long before by the distinctive appellation of *' The Height
of Land,'' and which had been described in many public docu-
ments as dividing the waters that fell into the Atlantic Ocean
from those that fell into the Eiver St. Lawrence to the tcest
of the sources of the Kiver St. John and the western head of
the Penobscot. Not one-third, it was declared, of the line
claimed by the United States could be shown to run along
lands which could properly be called <• highlands."
In fine, the British statement maintained:
Summary of BritUh ^' That the Bay of Fundy, as mentioned in
Arguments at to the treaty of 1783, was intended to be separate
the Maine Bound- and distinct from the Atlantic Ocean ; and that
*^- that the Eiver St. John, which falls into the
Bay of Fundy, was intended, on that as well as on other
grounds, to be excepted from the class of rivers described in
the treaty as falling into the Atlantic Ocean ; and consequently
that the highlands described in the treaty must lie to the
southward of that river.
2. That in 1782 the only ground on which the United States
claimed the territory in question was that it formed a part of the
province of Massachusetts Bay; that the utmost claim then
made extended only to the line of the River St. John; and
that in the course of the negotiations this line was materially
contracted.
3. That, far within the line claimed by the United States as
the boundary of the province of Massachusetts Bay, Great
Britain held an extensive hereditary seigniory, the fief of
Madawaska, indisputably Canadian in origin and always since
1683 under the jurisdiction of Canada.
4. That Great Britain had constantly exercised an actual
and unquestioned jurisdiction in the disputed territory from
the peace of 1783 to that of 1814, having held during that
period uncontested de facto possession of other parts of the
country than the hereditary seigniory above mentioned.
5. That the highlands claimed by Great Britain as those
designated in the treaty of 1783 conformed in every particular
to the conditions therein imposed, while those claimed by the
United States conformed neither in position nor in character
to those conditions.
On all these grounds Great Britain claimed that the point
>
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THE NORTHEASTERN BOUNDARY,
111
ignated in the treaty of 178;^ as the nortLweist angle of
;a St'Otia slioukl bo at or uear Mars llillj and that from
\ point the lino t^bould be traced south of the St. Jobn to
north westernmost head of tbe Connecticut Uiver, alnn^jthe
d8 of tb© rivers Penobscot, Kennebec, and Andrc^moj^^gin,
cb fall into tbe Atlantic Ocean, substantially aa the line
i dcKseribed on tbe oDicial map, denoniinated A, which was
exed to tbe c^mvention*
As to tbe north westernmost head of Con-
hwwtermmoit nectirut liiver, Great Britain maintained that
jad or Coimwti- ^^^ treaty meant that bead wbich,of all tbe
heudw abovt^ tbt* highest point "wbere tho river
iimea tbe distinguishing tilh^ of the Connecticutj should be
[jd to lie in tbe most northwesterly direction relative to tbe
n stream. Toward the npiier part of the river several
lauis fall intu it fnmi various (piarters* Of these streams,
> — Halls Stream and Inilian Stream, buth coming from tbe
tlnvest — ^^join the main river a little above the true tbrty-
1 |varallel of uurth latitutle, which is tbe oxtrenie southern
lit of tbe boundary of tbe British possessjonis aBs^igned
the treaty on that river, Tlie main Uiver Connecticut, bow-
r, retains its name and comparative volume* far above the
ution of these two streams with it, np to a lake called Con-
ticut Lake, above which there are smaller lakes. Tbe river
ch issues from Connecticut Lake bad, said tbe British state-
it, always been kno%irn by the soh^ name of Connecticut
er. threat Britain therefore claimed the springdiead of the
st northwestern water which found its way into Connecticut
Le as the north westernmost bead of Connecticut River, from
snce the line was to be tnu'cd down along tbe mi (bile of that
sr to the forty litltb degree of north latitude* Great Britain
nt;uned that no stream which joine4l tbe Connecticut Kiver
>w the ]ioint where it was known by that distinctive appel-
on couM be a^^suined to be tbeCoiinecticut Kiver^ nor could
head of such a stream be taken as the liead of the river
If. If such were tbe case, the beads of the Ilhine w^juld
e to be searched for in different parta of Europe instead of
:.he range of the St. Gothard Mountains, where they had
lerto been taken to be situated. Tbe Americau commis
ter and the American agent under tbe fifth article of tbe
aty of Ghent were, said the British statement, actually at
iaiice a3 to the north westernmost bead of the Counecticut
Digitized b]
112
INTERNATIONAL ARBITRATIONS.
t|*
liiver, the latter having declared for Halls Stream, tbe former
for Indian Stream. Tbe Government of the United States had
adopted the views of the agent by adhering to Halls Stream
as the boundary now claimed. In this relation the British
statement observed that the old forty-fifth parallel, which was
erroneously laid down half a mile north of the true latitude on
the Connecticut River, crossed Halls Stream above its junction
with the Connecticut River. The United States had objected
to the general rectification of the boundary along the forty-
fifth parallel, but, though they adhered to that objection, they
still maintained their claim to Halls Stream. This boundary
could never strike the real Connecticut at all. The British
claim was that the northwesternmost head of Connecticut
River meant the northwesternmost head of waters tributary
to Connecticut Lake.
As to the boundary westward from Con nee t-
^oS^lItitad? ^^"^ ^^^^^' ^^® ^^^^^^ required that the line
should be drawn due west on the forty-fifth
parallel of north latitude till it struck the St. Lawrence. Of
these ])lain and explicit stipulations, said the British statement,
Great Britain desired the strict and faithful execution. In
the year 1818, it being discovered that the old line was in many
places more or less defective, and that at Rouses Point, near
the outlet of Lake Champlain, it was so unusually inaccurate
that its rectification would leave the American forts erected
there on British territory, the eli'ectual prosecution of the sur-
veys was discontinued, and the American agent in his argu-
ment before the commissioners in 1821 maintained that no
fresh survey was intended by the treaty of such parts of the
boundary as were laid down between the provinces of Quebec
and New York while yet both were British, but only of those
parts where the line had not alreadj'^ been marked. The
American agent at the same time declared that if this fact were
not accepted by the commissioners he should be compelled to
require the parallel to bo laid down according to what he
termed the principles of ''geocentric latitude" as distinguished
from "observed latitude," the practical effect of which woukl
be to throw the forty-fifth parallel thirteen miles farther to the
north than the true latitude. The treaty, said the BritisL
statement, required a single line, that of the true forty-fifth
parallel of north latitude.
HLALllllfl
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THE NORTHEASTERN BOUNDARY.
113
»iican DefiBitiLve
Statement.
Both governineuts presented second or de-
finitive statements to the arbitrator.
The first question at issue between the two
rernineuts was, said the American definitive statement,
ether the highlands described in the treaty as dividing rivers
ptying themselves into the Kiver St. Lawrence from those
ling into the Atlantic Ocean actually need not, as the Brit-
contention implied, for tliree-fiftlis of their extent divide the
ers that were specified. In order to support this extraor-
lary pretension it was incumbent on Great Britain, before
i assumed to search for the intentions of the negotiators, to
)w that the terms of the treaty were susceptible of the
aning which she ascribed to them. This she had not at-
tempted, but she had appealed from the letter
BritbTciai^^ of tlie treaty to what was improperly called
its spirit. Even admittinjj: that there was
ne foundation for her position in rej::ard to the terms *'Atlan-
Ocean'^ and "hij»:hlands,^' the line claimed by her would
II fail to answer the requirements expressly i)rescribed by
) treaty.
The ]kitish statement had declared that,
^of HM^"^*^ there being in 17S2-83 no certain and acknowl
edged boundary between (Canada and Quebec,
man knew where the northwest angle of Nova Scotia really
s, and that the negotiators therefore proceeded by other
des to express their governments' intention, which was to
e to each power en tire possession of the rivers having their
utlis within its territory. There were, however, said the
oerican definitive statement, at the time of the treaty cer-
n and acknowledged boundaries between Canada and Nova
)tia, and, though the precise spot where the northwest angle
Nova Scotia would be found was not known, it was sup-
ped that all that would be necessary to ascertain it was
> mere operation of surveying. The alleged intention of
) negotiators was disproved not only by the fact that they
ablished the boundary on specific points, but also by tlie
[5umstance that various parts of the boundary, such as the
ty fifth parallel, intersected streams and lakes, thus dividing
^m between the two countries. All the inconveniences
;ribed to such a division of the St. John applied with
ireased force to the Kiver St. Lawrence and the extensive
5027 8
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14
INTERNATIONAL ARBITRATIONS.
Term **Atlazilic
Ocean/'
(countries situated ou its waters. In fact, the due north line
from tlie source of the St. Croix crossed no less than three trib-
utary streams of the St. John before it reached Mars Hill.
As to the term "Atlantic Ocean," the Amer
ican definitive statement argued at lengtlj
that the words ''rivers which fall into the
Atlantic Ocean" embraced rivers falling: into that ocean
through either of i*s two inlets, the Bay of Fundy and the
Gulf of St. Lawrence, botli according to the usual sense of geog
raphy, according to common language, and according to official
documents. As to the description of the St. Croix in the
treaty as having its mouth in the Bay of Fundy, to which the
British statement adverted, tlie American definitive statement
maintained, on the strength of various British documents, that
the argument was groundless, the terms "Atlantic Ocean,''
"Atlantic Sea," "Western Ocean," or "Western Sea" having
been used in such documents so as to embrace bodies of watei
in America bearing distinct names, such as Massachusetts Bay,
the Bay of Fundy, and the Gulf of St. Lawrence. In describ-
ing the St. Croix the treaty of 1783 had simply adhered to
the description found in the grant to Sir William Alexander
and in the commissions of the governors of the province, from
the language of which it was not advisable to depart.
As to the intentions of the negotiators of 1782-83, the Amer-
ican definitive statement found in the original proposition ol
the American commissioners conclusive proof that the St. John,
thougli it was therein mentioned as having its mouth in the
Bay of Fundy, was classed with the rivers falling into the At
lantic Ocean. In that proposition the boundary was formed
on the north "by a line to be drawn from the northwest angle
of Nova Scotia alon(} the highlands which divide those rivers
which empty themselves into the River St. Lawrence, from
those wliicli fall into the Atlantic Ocean," and on the east "bj
a line to be drawn along the middle of the St. John River /rowi
its source to its mouth in the Bay of Fundy." Obviously the
only Atlantic river turned by the highlands at the source oi
the St. John was the St. John itself.
As to the highlands, the American defini
Term "Highiandi." tive statement maintained that the supposi
tion in the British statement that the name
"height of land" given to a portion of the highlands dividing
the waters of the Connecticut and Kennebec from those oi
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THE NORTHEASTERN BOUNDARY. 115
the St Lawrence was an appellation i>eculiarly applicable to
that portion was altogether erroneous. The only colorable
authority for the supposition was that of Governor Pownall,
who used the terms "height of land^' and "highland" synony-
mously, as generic expressions, descriptive of ground separat-
ing the sources of rivers,* In every British act designating
the southern boundary of the province of Quebec, or of Lower
Canada, it was described as being along "the highlands which
divide,^' etc.; yet the committee of the executive council of
Quebec, in a report of 1787, spoke of it as "the height of
land."
As to the fief of Madawaska, the Ameri-
FiAfof MadawadoL can definitive Statement denied that a grant
to a French subject by a French governor of
Canada could affect the limits of the United States founded
on the charter of Massachusetts Bay. It was notorious that
France, at the time of the British conquest of Canada, claimed
the whole of the country watered by the River St. John and
its tributary streams as a i)art of New France, and doubtless
many French grants were made below the southern boundary
of the British province of Canada. How far these grants
were respected was best known to Great Britain. The fact
that the last French possessor of the fief of Madawaska had
the sagacity to dispose of his claim, just after the conquest, to
the first British governor of Quebec probably was the reason
why this solitary grant had escaped the general wreck of
French concessions in that quarter. But, though the grant
was held by a feudal tenure, it did not appear that the British
purchasers had ever performed any of the conditions pertain-
ing to such tenure in relation to the government of (Juebec
or of Lower Canada. No ac^ts of jurisdiction appeared to
have been exercised over the fief by either of those govern-
ments. In reality, the only basis of the claim of acts of juris-
diction was the fact that certain transfers or leases relating
to the fief between British subjects were recorded in an office
in Quebec, in which it was shown that French concessions
known to be without the boundaries of the province had also
been admitted to record.
• Examples were quoted from Pownall's Middle BritiMh American Colo-
nies, published in 1776, pp. 10, 13, 17, etc. Extracts are alwo made from
McKenzie's History of the Fur Trade, published in 1802, pp. 28, 32, 35,
40, etc.
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116
INTERNATIONAL ARBITRATIONS.
The Madawaska settlement, which was
Madawaika Setue- ^|.^,j,^| |,j ^|jg British Statement as being
ment. "
actually under British jurisdiction, afforded,
said the American definitive statement, no evidence of an inten-
tion on the part of the government of New Brunswick prior
to the Treaty of Ghent to extend its jurisdiction over the con-
tested territory. The French settlers who made it at first
established themselves farther down the St. John. When the
British,. after the Treaty of 1783, extended their settlements^
up that river the French settlers removed upward to the mouth
of the Madawaska. At that time the true St. Croix was unde
termined and the situation of the due-north line was unknown.
It was only since the survey of the line in 1817-18 that the
exercise of jurisdiction by New Brunswick had been complained
of. From 1704 to 1814 that government had granted no land
in the contested territory to any one. The British agent under
Article V. of the Jay Treaty, who was a distinguished inhab-
itant and public officer of New Brunswick, admitted in his
argument that the due-north line must cross the St. John, an
admission which, as agent under Article V. of the Treaty of
Ghent, he sought to explain away. The pretension of Great
Britain to the contested territory was first made known to thr
United States at Ghent, when the British plenipotentiaries
proposed to vary the boundary so as to secure to Great Britain
a direct communication between Quebec and Halifax.
The American definitive statement closed with brief discus-
sions of the questions as to the north westernmost head of
Connecticut River and the forty-fifth parallel of north latitude.
The second or definitive British statement
did not follow the controversial form, but in
the main presented a supplementary view of
the British case.
Taking up, as first in order, the question of
^^a^'of 178?* *^*^ northwest angle of Nova Scotia, the second
British statement observed that the claims of
the two governments involved a diflerenee of 105 miles on a
due-north line and a tract of territory 10,705 square miles in
extent. Both parties agreed tliat, in order to determine the
true situation of the point of departure, the highlands intended
by the treaty must first be determined. When the peace was
concluded a considerable part of the frontier territory was
altogether unknown, or at best imperfectly explored. It was
Second BritLsh State-
ment
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THE NORTHEASTERN BOUNDARY.
117
ipossible for the negotiators of 1783 to describe the boundary
ronghout its whole extent in such terms as to leave no room
r hesitation or dispute, but it was not impossible to show
[lat was the intention of the treaty. The intention of the
Baty was: (1) To define exclusively the limits of the United
ates; (2) to define them peremptorily; (3) to define them in
ch manner as to promote the "reciprocal advantage and
iitual convenience" of both countries. Such being the
[>tives of the contracting parties, it was inconceivable that
e British Government could have intended to carry the
undary line to the north of the River St. John, thus iucur-
ig not merely the loss of a certain number of square miles,
it the surrender of direct communication between Nova Scotia
d Canada to the United Stiites. The American statement
emed to recognize the justice of leaving to each party its
rers. This was a principle of the utmost importance, and it
aid be preserved only by establishing the highlands south of
e River St. John. With respei^t to the question of high-
nds, it sufficed to quote, as to Mars Ilill, the statement of the
inerican surveyor that the south i)eak was " 175 feet higher
an the north peak, and about 1,000 feet above the general
7e\ of the a<ljacent country." This description was decisive
the superior height of Mars Hill. The question of the
rthwest angle of Nova Scotia was subordinate to that of
e highlands. The place of that angle was unknown in 1783.
le charter of Massachusetts, as the United States interpreted
would fix it on the right bank of the St. Lawrence. The
oclamation of 1703, and the Quebec Act, as interpreted by
e United States, would place it on certain highLands south
the rivers that fall into the St. Lawrence. The first j^ro-
sal of the American negotiators at Paris would place it at
e source of the River St. John. The fact was that the north-
ist angle of Nova Scotia was yet to be formed, and this had
en admitted by high American authority.
According to the American statement, said
ident Boandaries. the second British statement, the line due
north from the source of the River St. Croix
tended 144 miles north of that point. It intersected the main
aunel of the St. John and several other streams, and termi-
ted at a place destitute of any marked elevation between
e of the branches of the Restigouche and the s<mrce <»f a
ream falling into the St. Lawrence, and presumed to be the
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118
INTERNATIONAL ARBITBATIONS.
lliver Metis. The United States bad labored to show that
this line and the line mentioned in the treaty were identical
with the boundaries that subsisted between the British prov-
inces of Nova Scotia, Quebec, and Massachusetts Bay. But
this supposed identity was a mere matter of conjecture. The
object of the treaty of peace was to settle the boundaries of
tlie United States without regard to British boundaries. If
the negotiators of the treaty had intended to adopt a line sup-
posed to have previously existed, they might have satisfied
themselves with running the line due north from the St. Croix
River to the southern boundary of the province of Quebec;
but they resolved not to trust to any such vague and arbitrary
line, but to establish peremptorily a new line based on real
interests. Had they adhered to the basis of the ancient bound-
aries, in regard to which there had been many disputes, the
negotiations might have been protracted to an indefinite length.
To the allegation in the American Htatement
^ 17W ^ *'^^^ ^^^® maps comprehending the disputed
territory which were known to have been pub-
lished between 1763 and 1783 carried the boundary line, as
described in the royal proclamation of the former year, alon^
the highlands to which the claim of the United States particu-
larly applied, the second British statement replied: (1) That in
these maps the highlands were represented by a line of visible
elevation contrary to the true character of the country, as
since ascertained; (2) that in some of them the line of visible
elevation was made to intersect waters of the St. John, or of the
St. Lawrence, or of both, thus disproving any intention of its
having been traced upon the principle of dividing those waters:
(3) that no maps were to be received as awf^ori^y but Mitchell's
map and the map A ; (4) that the old maps were eo])ied from
one another, so that no additional evidence could be drawn
from their coincidence; and (5) that the selection by the nego-
tiators of Mitchell's map, which was published before the proc-
lamation of 17(13, materially contributed to show that the line
found on the later maps was not that on which the boundary,
as defined in the treaty, was meant to be established.
The second British statement laid great stress on the preju-
dice which would be occasioned to the British provinces by
allowing the American claim.
In respect of the question of the north westernmost head of
Connecticut Kiver, the second British statement added noth-
ing material to what was set forth in the first.
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THE NORTHEASTERN BOUNDARy.
119
As to tbeft>rty ftftli jiarnllel of north latitude,
r-flfth Parallel ^he secoiul British statement said that Groat
ortiL Latitndo.
Britain did not deny tliat the old line between
York and Quebec was connidercd accurate in the year
, when it was finished. i>ut It wius rapahle of proof that,
before the conclusion of the Treaty of Ghent, both gov^
lents had received information which must haye altered
• opinions respecting tht^ *'(MTect execiitioii of the Hue,
State of Vermont seemed t*) have been tl»e first to sui^peet
iccura(5y of the line. In l^t the ^^(jvcrnmeut of that State
iged Dr. Williams, the hi>>torrau and philosopher of Ver-
t, to ascertain the correctness of its northern boniHlary,
eported that the line as drawn deviated to the southward
le true parallel, and that it eut oft" in its ea.stern prolonga
more than 600 square miles (»f Vermouths territory. Nn
stance was shown on the part of tlie United States to the
blishment of the true line till some time after it was ktjnwn
the changes produced by the operation wouhl l»e mainly
nst their interests, print- jpaUy by the loss (^f the fortilica-
\ at Rouses Point. ^
I the 10th of January 1831 the jirbitrat^u' rendered the
wing award:
*' Nous, GUI LL A UM H, par la frmee de Dieiu
rd of the ApM- j^j j^g Pays Bas, Prints d'Dran^^e-Nassau,
'* Grand Due de Ijn.vejnbunrjr, i^v. &e. &e,
Lyant accepts les fonctions rrarbitrateur, c[ni Nous unt ete
L*rees par la note du (Jhar^*' d'AHaiies des lOtals Unis
nerique, et par celle de rAmbassadenr extraordinaiie el
ipotentiaire de la Grand Hretagiie, a Notre MinistriMb^s
ires Etrangeres, en date du Iii Janvier 18i*J*, d'apri's Taitr
lu traits de Gand, du 2-1 Deeembre 181 1, et Tart: I. de
>nvention conclue entre ees l*uissanees a Londres le L*l>
When at Ghent it was not known tt> mi% and I lielieva tiiy collua^nt*K
tvo h«en also unacquainted with the f&ct, that tbts iMiiiiularji^liins
een the then proviufes of N(nv York ami tjiii.-Ui'n had bui-ii oHk ijilly
yed, with the sanction of the Cruwii uti4 Ijy tbci rumj^eteut jtruviiifial
>rities. The treaty accordingly aHHiuiies and declams us ji fiict whjit
act really true, that no part ai* tlio liiit^ frtjiii tho sourc<? of tUo rivi'r
roix to the river St. Lawreui^e had lu-eu sitrseyetl. I perceive no
circumstance on which to groiiml our i-1aiju to the old line ; and ih*^
nent, founded rather on eqiiitalih* coii8ideratitiiift» i^* fiir fnim bejn^
usive. I need hardly add tlisirt tlm prL^teiiBUin drawn front the gco-
ic latitude is altogether unti'ir;j1jlej ftud th;it ii ifl a iiiiittiT of re^^rer
it ever was atlvanced." (Mi, rSalhvtin to Mr. Vnn Ness, March 22,
Adams's Writings of GallatLu, IL 106,)
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120
INTERNATIONAL ARBITRATIONS.
Septembre 1827, dans le differend, qui s'est <^lev^ entre Elles
aa sujet des limites do leur possessions respectives.
"Anim^sdudesir 8incerederepondrei>arune decision scmpu-
leiise, et impartiale i\ lacontiance,qu'Ellcs Nous out temoiguee,
et de leur donner ainsi un nouveau gage du haut prix que Nous
y attaclions.
"Ayant a cet effet diiinent examine, et mfirement pes^ le con-
tentu du premier expose, ainsi que de Pexpose definitif du dit
ditt*(6rend, que Nous out respectivement remis le ])reniier Avril
de Tannoe 1830 I'Envoye extraordinaire et Ministre plenipo-
tentiaire des Etats Uni8<rAm6rique, etl'Ambjissadeur extraor-
dinaire et plenipotentiaire de sa Majeste Britanuique, avec
toutos les pieces, qui y out et<^ jointes A. I'appui :
" Voulant accomi)lir aujourd'hui les obligations, que nous ve-
nous de con tracter par Tacceptation desfonctions d'arbitrateur
dans le susdit differend, en i>ortant a la connaissance des deux
hautes parties iuteress^es le resultat de Notre examen, et Notre
opinion sur les troi points, dans lesquels se divise de leur coni-
mun accord la contestation.
'•Consid^:rant,
"que les trois points precit^s doivent etre jugi^s d'apres les
traiti^s, actes et conventions conclus entre les deux Puissances,
savoir le traite de paix de 1783, le traits d'araitie, de commerce
et de navigation de 1794, la declaration relative jY la riviere St.
Croix de 171)8, le traite de pfiix signe a Gand en 1814, la con
vention du 20 Septembre 1827, et la carte de Mitcbell, et la
carte A citees dans cette convention :
"D6CLARONS, QUE
" Quant an premier point, savoir la question, quel est I'endroit
designedans les traites, comme I'AngleNord-Ouest de la Nou-
velle Ecosse, et quels sont les highlands separant les rivieres,
(lui se ddcliargent dans le fleuve St. Laurent, de celles tombant
dans rOcean Atlantique, le long desquels doit etro tiree la
ligne de limites depuis cet Angle jusqu'j\ la source Nord-Ouest
de la riviere Connecticut.
"Considkrant:
"que les liautes j)arties interess^es reclamant respectivement
cette ligne <le limites an midi et au nord de la riviere St. John,
et ont indique cliacune sur la carte A la ligne, qu'elles de
mandent.
"CONSID^UANT:
"que selon les exemples allegues, le terme highlands s'applique
non seulement a un pays montueux, ou elev^, niais encore sY un
terrain, qui, sans etre montueux, s^pare des eaux coulant dans
une direction ditf'erente, et qu'ainsi le caractere plus ou moins
montueux, et elev6 du pays, a travers lequel sont tirees les
Digitized by
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THE NORTHEASTERN BOUNDARY,
121
X lignes respectivement reclaraties au Nord et an Midi de
iviere St. John, ne saurait iaire la base d'niie *>ption entre
8.
Que le texte dii second article du tTaltr do paix dv 178:i
rodiiit oil partie les expressiouH, dortt oil n'Qst anttTienre-
it servi dans la proclamation de 17G3, (*t dans I'actB i\v
»l)ec de 1774, pour indiquer les liniiteH uuMidionales <]ii
ivernement de Quebec, depuis Ir la(^ rhampUiiu, 'in torty-
1 degrees of North latitude aluiig ilui highlands, which
ide the rivers, that empty themselves irjtt> the river St.
erence, from those, which Ikll into the sea, and alsu alon^^
North coast of the Bay des Ciialenrs/
Qu'eu 17G3, 1765, 1773 et 178ii il a ete etabli, que la nmivellfi
►sse serait born^e au Nord, jnsqira Textreinite Oeeidentale
a baiedesCbaleurs par la liniite nn'^n^Honaledela pro^inee
Quebec, que cette delimitation se retronve ponr la ]>rovrnei^
Quebec dans la commission dn <Joavenienr iH}nt''ral de
'*bec de 178G, on Ton a fait usage des terrrn^s tie hi iH'oehnna
I de 17(>3, et de Tacte de Qut'bec de 1774, et. ilans les Colli-
sions de 1786 et posterieures des Gonveriienrt* dn noiiveaii
LURwick pour cette derni^re iirnviiiee, ninsi ^u^^ «lan8 un
nd nombre de Cartes ant^iienres, (*t jHKsterieures an trait<^
1783, et que Particle premier iln dft traite cite noniina-
>ment les Etats, dont rindepetnJanee est leeounne:
Mais que cette mention nirnpltque i)oint Tentiere coinei
ce des limites entre les deux Vu issatnies, reghk^s par Tart irle
^ant, avec Tancienne delimitation des provinces Aiiglaises,
t le maintieii n'est pas mentionnr- dans le traite ile 178-'^, et
par ses variations continnelles, et par rin certitude, qni
tinua d'exister si sou ^gard, provotjua de tempi* it autre des
trends entre les autorit^s pn^vineiales,
Qu'il resulte de la ligne tire*^ par h* traite de 17S.1 a travers
grands lacs «a TOuest du Heme St, Lanrent, mie deviatir»n
anciennes chartes provineiales, en cc rpii eoiiceme les
ites.
Qu'on chercherait en vain u s'expliqner, ponrqnoi, si Vau
3ndait maiutenir rancieune <h'*limitatit>ri ]>rovin4^iiile, Ton a
jisement fait usage dans la jn'»goeiation de 17S:t de la rarte
Mitchell, public^e en 1755, et par eoiistM|iieiJt anteritnue a hi
damation de 1763, et {\ rAilo de fjtiebee de J 771,
Que la Grande Bretagne proposa d'abord la rivirrc^ IMscatji-
pour limite j\ Test des Etats I.Jois, et ensuife ii\ieeepta
la proposition de faire fixer j^his tard la limite du Maine^
le Massiichusetts bay.
Que le traite de Gand stipnlii un nonvel «xarnen sur les
X, lequel ne pouvait s'appliquer a uue limite liist(>rique, on
dnistrative,
et que des lors Fancienne deliniitHtion des javivim-es Ang-
*s n'offre pas non plus une base t]v (ierisiiin.
Quelalongitude de Tangle Ntu ,1 ( >nesL de la non vc Ile Eco^^
Digitized by
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'8
122
IKTERNATIONAL ARBITRATIONS.
itiL^
laquelle doit coincider avec celle de la source de la riviore
St. Croix, fat seulement fixee par la dt'claratioii de 1798, qui
iudiqua cette riviere.
"Quo le traits d'amiti^, de commerce et de navigation de 1794
mentionne le doute, qui s'etait cleve j\ IVgard de la riviere St.
Croix, et que les premieres instructions du Congres lors des
negociation8,dont resulta le traite de 1783,placent le dit angle
h la source de la riviere St. John.
"Que la latitude de cet an^rle so trouve sur les bords du St.
Laurent selon la carte de Miti-liell, reconnue pour avoir r^gle
de travail combing, et officiel des n^gociateurs du traits de
1783, au lieu qu'en vertu de la delimitation du Couvernement
de Quebec, Ton devrait la cherclier aux highlands sepc^nt les
rivieres, qui se decbargent dans la riviere St. Laurent, (le'celles
tombant dans la mer.
"Que la nature de terrain h Test de I'angle precit^ u'ayant
pas ^te indiqu^e dans le traite de 1783, il ne s'eu laisse pas
tirer d'argunient pour le fixer de preference dans tel endroit
plut6t que dans un autre.
" Qu'au surplus si Ton croyaitdevoir le rapprocherde la source
de la riviere St. Croix, et le cbercber par exemple i\ Mars hill,
il serait d'autant plus possible, que la limite du nouve;iu
Brunswick tiree de h\ au Nord-Est donnat i\ cette province
plusieurs Angles Nord-Ouest, situes davantage au Nord, et a
I'Est selon leur ])lus grand c^Ioignement de Mars hilly que le
nombre <le degres de Tangle mentionne dans le traite^ a ^t^
passi^ sous silence.
"Queparconst^quentl'angleNord-OuestdelanouvelleEcosse,
dont il est ici question, ayant 6t6 inconnn en 178^3, et le trait*^
de<iand Payant encore dcclar6 non constate, la mention decet
angle historique <lans le traiU? de 1783 doit etre consid^r^e
comme une petition de principe, (pie ne pr^sente aucune base
de decision, tandis que si on I'envisage comme un point topo
grapbicpie, efi egard j\ la definition, 'viz, that angle, which is
formed by a line drawn due north from the source of the St.
Croix river to the highlands,' il forme simplement I'extr^mite
de la ligne 'along the said highlands, which divide those
rivers, that empty themselves into the river St. Lawrence, from
those which fall into the Atlantic Ocean,' — extremite que la
mention de Tangle Nord Guest de la nouvelle Ecosse ne con
tribue pas ^ con stater, et qui, etant A. trouver elle nieme ne
saurait mener i\ la dccouverte de la ligne, qu'elle termine.
"Enfin que les argumens tires des droits de souverainetr
exerces sur le fief de Madawaska, et sur le Madawaska Settle
ment, admis meme que cet exercice fut suffisamment prouviS
ne peuvent point decider la question, par la raison que ces
deux<!'tablissemens n'embarassentqu'un terrain partieldecelui
en litige, que les hautes parties intJ'ressees ontreconnu lepays
situeentreles lignes respectivementreclam^es par elles, comme
fesjint un objet de contestation, et (]u'ainsi la possession ne
saurait etre censee deroger au droit, et que si Fou ecarte
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THE NORTHEA8TERK BOUNDARY. 123
Tancienne deliniitation des provinces alleguee en favear de la
ligne reclam^e an Nord de la riviere St. John, et sp^cialement
celle mentiouu^e dans la proclamation de 1763, et dans I'acte
de Quebec de 1774^ Ton ne saurait admettre j\ I'appui de la ligne
demand^e an midi de la riviere St. John, desargumens tendant
:\ prouver, <|ue telle partie du terrain litigieux appartient an
Canada, on an nouveau Brnnswick.
''CONSID^BANT:
"que la ((uestion, depouillee des argnmens non d^cisifs tires
<lu caractere plus on uioins niontueux de terrain, de Tancienne
delimitation des provinces, de Tangle Kord-Ouest de la nouvelle
Ecosse, et de Tctat de i)088ession, se r^duit en derniere analyse
i\ cellessi, quelle est la ligne tir^e droit an Nord depuis la
source de la riviere St. Croix, et quel est le terrain, n'importe
quMl soit montueux et elev^, on non, ({ui depuis cette ligne
jusqu'cY la source Nord-Ouest de la riviere Connecticut, s^jpare
les rivieres se dechargeant dans le fleuve St. Laurent, de celles,
qui tonibent dans I'Ocean Atlantique; que les hautes parties
interess^es ne sont d'accord, que sur la circonstance, quo la
limite 'X trouver doit etre determin^e par une telle ligne, etpar
un tel terrain, qu'elles le sont encore depuis la declaration de
1798 sur la r^»ponse a faire i\ la premiere question, i\ Texcep-
tion de la latitude, fi laquelle la ligne tiri^e droit au Nord de la
source de la riviere St. Croix doit se terminer, que cette lati-
tude coincide avec rextr(»miU» du terrain, qui depuis cette*. ligne
Jusqu'ii la source Nord-Ouest de la riviere Connecticut scpare
les rivieres, se dechargeant dans le fleuve St. Laurent, de celles
qui tombent dans I'Oc^an Atlantique, et que des lors il ne
reste, qu'a determiner ce terrain.
"Qu'enselivrantjicetteoperation,ontrouved'unc6ted'abord,
que si par Fadoption de la ligne reclamee au Nord de la riviere
St. John, la Grande Bretagne ne pourrait pas Ctre estimee ob-
tenir un terrain de nioindre valeur, que si ello cut accepte en
1783 la riviere St. John pour frontiere, eii ^gard i\ la situation
du pays entre les rivieres St. John et St. Croix dans le voisi
nage de la mer, et li la possession des deux rives de la riviere
St. John dans la derniere partie de son cours, cette compen-
sation serait cependant dc^'truite par I'interruption de la com-
munication entre le Has Canada, et le nouveau Brunswick,
sp^cialement entre Quebec et Fredericton, et qu'on cherche-
rait vainement, quels motifs auraient determine la Cour de
Londres Ji consentir a une sembhible interruption.
" Que si, en second lieu, en opposition a ux ri vieres se decharge
ant dans le fleuve St. Laurent, on aurait convenablement d'a-
pres le langage usite en geographic, pu comprendre les rivieres
tombant dans les baies de Fun<ly et des Chaleurs, avec celles si»
jettant directement dans TOcean Atlantique, dans la denomina-
tion g^'m^riqne de rivieres tombant dans TOcean Atlantique, il
serait hasardeux de ranger dans Fespece parnii cette categoric
Digitized by LjOOQIC
124
INTERNATIONAL ARBITRATIONS.
les rivieres St. Jolin et Restigouclie, quo la ligne r^clam^e ai
Nord de la riviero St. John separe imm^diatenient dea rivi^rei
86 decliargeau t dans le fieuve St. Laurent, non pas avec d'autres
rivieres coulant dans I'Oe^an Atlantique, mais seules, et d'ap
pliquer aiusi, en interpretant la delimitation fix^e parun trait^
ou cliacjuo expression doit compter, t\ deux cas exchisivenieul
speciaux, et on il ne s'agit i)as du genre, une expression gen6
rique, qui leur assignerait un sens plus large, ou qni, (^tendm
aux Scnudiacj Lakes, Penobscot et Kennebec, qui se jetteni
directeiiient dans TOc^an Atlantique, etablirait lo jiriiicipe, que
le trait4'i do 1783 a entendu des highlands separant aussi bier
rnediatement, qu'imin^diatement, les rivieres so deebargeani
dans le fleuve St. Laurent, de cellos, qui tonibent dans I'Ocear
Atlantique, principo ^galement realise par les deux lignes.
*^Troisi^menient, quo la ligne r^clann e au Nord do la rivien
St. John no s^paro i)a8 memo iumi^diatement les rivieres s<
dechargeant dans lo Heuve St. Laurent, des rivieres St. Johi
et Ristigouche, nmis seuloment des rivieres, qui so jettont dani
le St. Jolin et Kistigouche, i\ roxcoption do la derniere partic d<
cetto ligno i)res des sources do la riviero St. John, et qu'ains
l>our arriver j\ TOc^an Atlantique les rivieres separees par cett<
ligne do cello so dechargeant dans lo fleuve St. Laurent, om
chacuno besoin do deux iiitermediaires, savoir les unes de h
riviere- St. John, et de bai© Fundy, et les autres de la rivieri
liistigouche, et do baio des Chalours;
^^ilt do Tautre,
*• qu'on no pent expliquer sufllsamment, comment si les hautei
parties contractantes out entendu t'tablir en 178.3 la limite ai
midi do la riviero St. John, cetto riviere, a laquello lo terraii
litigieux doit en grande partio son caractero distinctif, a ^t*
neutralise 0, et niiso hors do cause,
"Que lo verbo *divido' parait exiger la contiguite des objets,
qui doivont etro ' divided.'
"Quo la dito limite form© seuloment a son extr^mit<5 occiden
tale la separation iinm<'*diato entro la riviere Mettjarmette, el
la source Nord Ouest du Penobscot, et ne separe que mediate
nient les rivieres so dechargeant dans lo fleuve St. Laurent
(les eaux du Kennebec, du Penobscot, et <le8 Scoudiac Lakes.
tandis que la limit© r^clam^*© au Nord de la riviere St. John
separe immediatement les eaux des rivieres Ristigouche el
St. John, et rnediatement les Scoudiac Lakes et les eaux de."
1 ivieres Penobscot et Kennebec, des rivieres se dechargeant
<lans le fleuve St. Laurent, savoir les rivieres Beaver, Metis,
Uimousky, Trois i)istoles. Green, du Loup, Kamouiaska, Quelle,
Bras St. Nicholas, du Sud, La Famine et Ohaudiore.
"Quo memo en mettant hors do cause les rivieres Ristigouche
et St. John, i)ar 1© motif, qu'elles no pourraient etre cens^^ef
tomber dans TOcean Atlanti(|ue, la ligno septentrionale sf
trouverait encore aussi pres des Scoudiac Lakes, et des eaus
du Penobscot, et du Kennebec, quo la ligne meridional© de*
rivieres Beaver, Metis, Rimousky et autres, se dechargeant
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THE NORTHEASTERN BOUNDARY.
125
\ le fleuve St. Laurent, et formerait aussi bien que Fautre
B^paratiou mediate eutre celles-ci, et les rivieres tombant
; rOct^an Atlaiitique.
le la reucoutre ant^rieurede la limite m^ridiouale, lorsque
b source do la riviere St. Croix, ou tire uue ligne au Nord,
rait seuleineut lui assurer uu avautage accessoire sur
re, dans le cas, ou Tune et I'autre limite r^uuisseut au
e degr6 les qualit<^.s exigees par les trait^s.
; que le sort assigiie i)ar celui de 1783 au Connecticut, et
it. Laurent menie, ^carte la supposition que les deux
sauces auraient voulu faire tomber la totalito de chaque
re, depuis son origine jusqu'slt son embouchure, en partage
ue, ou i\ I'autre.
SIDlfeRANT :
le d'apres ce qui i>r<^cMe, les argumens all^gu^s de i)art
autre, et les pieces exliib^es i\ I'appui, ne peuveut etre
[i(3S assez preiK)nd('Tan8 pour detenniner la preference en
iir d'une des deux lignes, respect! veinent r^claniees liar
lautes parties iiiteress»>es, coniine limites de leur jmsses-
j depuis la source de la riviere St. Croix Jusqu'ii la source
I Ouest de la riviere Connecticut; et que la natnre du
rend, et les stipulations vagues, et non suffisanunent deter-
esdu traite de 1783 n'adinettent pas d'adjuger Tune ou
re de ces lignes j\ I'une des dites pjirties, sans blesser les
iipes du droit, et de Pequite envers I'autre.
3IDERANT :
le la question se r^duit, comme il a etc expriin<3 ci-dessus i\
loix a faire du terrain Sf'*parant les rivieres, se dechargeant
le fleuve St. Laurent de celles, qui tombent dans TOceaii
ntique, que les liautes parties interessc^'es se sont entendues
card du cours des eaux, indiqu6 de coinraun accord sur la
B A, et pr^sentant le seul element de decision.
(|ue des lors les circonstances, dont ddpend cette decision,
luraient etre eclaircies davantage, au moyeu de nouvelles
jrches topographiques, ni x)ar la production de pieces
elles.
S SOMMES D'AVIS:
L'il conviendra d'adopter i)our limite des deux Etats une
I tiree <lroit au Nord depuis la source de la riviere St.
c jusqu'au point, ou elle couj)e le milieu du thalweg de la
re St. John, de hi, le milieu du thalweg de cette riviere en
jmontant jusqu'au point, on la riviere St. Francis se
arge dans la riviere St. John, de la, le milieu du thalweg
riviere St. Francis en la remontant jusqu'iY la source de
anche la jilus Sud Ouest, laqnelle source Nous iiidiquons
1 Carte A par la lettre X, authentiqu^^^e par la signature
otre ministre des affaires (itrangeres, de h\ une ligne tiree
^ rOuest Jusqu'au point, oil elle se r^unit i\ la ligne
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Ill
ti
126 INTERNATIONAL ARBITRATIONS.
r^clam^e par lea Etats Uuis d'Aiuerique, et tracee sur la Car
A, de 1}\ cette lipriie.jusqu'au point, oii d'apms cette carte, el
coincide Jiveccelle deinandc^e par la Grande Bretagne, et de lA
ligne indiqueo sur la dite Carte par les deux Puissances jusqu
la source la plus Nord Ouest de la riviere Connecticut.
Quant au second point, savoir la question, quelle est
source la plus Nord Onest {Northwesternmost head] de larivic
Connecticut.
CONSIDl&RANT :
Que pour r^soudre cette question, il s'agit d'opter entre
riviere de Connecticut Lake, Perry's stream, Indiiin Streai
et Hall's Stream.
CONSID^RANT :
Que d'apres I'usage adopts en geographic, la source et le 1
d'une riviere sont indiqu^s par le nom de la riviere attache^
cette source, et j\ ce lit, et ])ar leur plus grande importau
relative comparee H celle d'autres eaux, communiquant av
cette riviere.
Consid6rant :
Qu'une lettre officielle de 1772 mentionne dej^ le nom <
Hall's brook, et que dans une lettre officielle post(^»rieure de
racuieannee du mcme inspecteur, on trouve Hall's brook repi
sente conime une petite riviere tombant dans le Connecticut
Que la riviere, dans laquelle se trouve Connecti<'ut Lak
parait plus consid(5rable, que Hall's, Indian ou Perry's streai
que le Connecticut Lake, et les deux lacs situes au Nord <
celui-ci, semblent lui assigner un plus grand volume d'ea
qu'aux trois autres rivieres, et qu'en I'admettant comme le
du Connecticut, on prolonge davantage ce fleuve, que si l'<
donnait la prefi^rence {\ une do ces trois autres rivieres.
Enfin que la carte A ayant 6t6 reconnue dans la conventit
de 1827 comme indiquant le cours des eaux, rautorite de cet
carte semble s'^tendre (''galement A. leur denomination, ^
qu'en cas de contestation tel nom de riviere, ou de lac, si
lequel on n'efit pas 6t6 d'accord, efit pu avoir 6Ui omis, que
dite Carte mentionne Connecticut Lake, et que le nom de Co
necticut Lake implicpie Tapplication du nom Connecticut a
riviere, qui traverse le dit lac.
Nous SOMMES D'AVIS:
que le ruisseau situ^ le plus au Nord Ouest de ceux, q
con lent dans le ])lus septentrional des trois lacs, dont le derni
porte le nom de Connecticut Lake, doit ^tre considc^r^ comme
source la plus Nord Ouest [Xorihipesternmost head) du Co
necticut.
Et quant au troisieme point, savoir la question, quelle est
limite k tracer depuis la riviere Connecticut le long du pam
lele du 45e degr^ de latitude septentrionale, jusqu'au fleuve S
Laurent, nomme dans les traitcs Iroquois, ou Cataraquy.
Digitized by VjOOQ IC
THE NORTHEASTERN BOUNDARY.
127
NSId6b ANT :
lue les liaiites parties iiit^ressi^es diff'^reut d'opiuion, sur la
estioii de savoir, si les trait<^s exigent uu iiouveau lev^ de
ite la ligne de limite depuis la riviere Connecticut, Jusqu'au
live St. Laurent, uonimt* dans les trait^s Iroquois ou Cata-
juy, ou bien seuleuient le complement des anciens lev^s
>vinciaux.
nsid*:rant:
jue le cinquieme article du traitc de Gand de 1814, ue stipule
Int, qu'ou levera telle partie des liniites, qui u'aurait pas ct^
eejusqu'ici, niais declare que les limites n'ont pas 6t6 levies,
(''tablit, qu'elles le seront.
jju'en eflfet ce leve dans les rapi>orts entre les deux Puissances
it etre cens^ n'avoir pas eu lieu depuis le Connecticut
iquM la riviere St. Laurent, noinnieedans les trait(''S Iroquois
Cataraquy, vu que Tancien lev6 s'est trouve inexact, et avait
i ordonnc^ non par les deux Puissances d'un commuu accord
js par les anciennes autorites provinciales.
Ju'il est d'usage de suivre en fixant la latitude, le principe
latitude observ(^'e,
5t que le Gouverneinent des Etats ITnis d'Am^rique a etabli
taiues fortifications H Tendroit dit Rouse's point, dans la
rsuasion, que le terrain fesait partie de lenr territoire, — per
isiou suffisannnent h^gitinn'e par la lignerrputee jusqu'alors
Tespondre avec le 45e degre de latitude septentrionale.
►us SOMMES D'AVIS:
Ju'il conviendra de i>roceder {\ de nouvelles operations pour
surer la latitude observee, afin de tracer la limite depuis la
iere Connecticut, le long du parallele de 45e degr6 de lati-
le septentrionale jusqu'au iieuve St. Laurexit nomme dans
trait^s Iroquois ou Cataraquy, de nianiere cependant, qu'eu
It cas^Tendroit dit liouse's point, le territoire des Etats Unis
Lmerique s'^tendra Jusciu'au fort qui s'y trouve etabli, et
nprendra ce fort, et son rayon kilometrique.
Aiinsi fait et donne sous Notre Sceau Royal a La Haye, ce dix
ri vier de I'an de grace Mil Huit Cent Trente Un, et de Notre
^ne le dix huitieme.
Signe) GuiLLAUMB
Signe) Verstolk de Soelen .
Le Ministre des Affaires Etrangeres,
Tranilation of
Award.
"William, by the Grace of God, King of the
Netherlands, Prince of Orange-Nassau,
Grand Duke of Luxembourg, &c. &c.
* Having accepted the functions of Arbitrator conferred upon
by the note of the Charge d' Affaires of the United States
America, and by that of the Ambassador Extraordinary and
3nipotentiary of Great Britain, to our Minister of Foreign
i
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128
INTERNATIONAL ARBITRATIONS.
Affairs, under date of the 12tb January, 1829, agreeably to tl
5th Article of the Treaty of Ghent, of the 24th December, 181
and to the Ist Article of the Convention concluded betwee
those Powers, at London, on the 29th of September, 1827, i
the difference which has arisen between them on the subject <
the boundaries of their respective possessions:
'< Animated by a sincere desire to resi)ond, by a scrupuloti
and impartial decision, to the confidence they have exhibite
in us, and thus to give them a new proof of the high value w
attach to it:
'* Having, to that end, duly examined and maturely weighc
the contents of the First Statement, as well as those of tli
Definitive Statement of the said difference, which the Envo
Extraordinary and Minister Plenipotentiary of the Unite
States of America, and the Ambassador Extraordinary an
Plenipotentiary of His Britannic Majesty, respectively deli^
ered to us on the 1st of April of the year 18^30, with all tli
documents thereto annexed in sujiportof them:
*' Desirous of fulfilling, at this time, the obligations ^
contracted in accepting the functions of Arbitrator in tt
aforesaid difl'erence, by laying before the two High Intereste
Parties the result of our examination, and our opinion on tt
three points into which, by common accord, the contestation
divided :
''Considering that the three points above mentioned ougl
to be decided according to the Treaties, Acts and Conventioi
concluded between the two Powers; that is to say, the Treat
of Peace of 1783, the Treaty of Friendship, Commerce an
Navigation of 1794, the Declaration relative to the river S
Croix of 1798, the Treaty of Peace signed at Ghent in ISl
the Convention of the 29th September, 1827; and Mitchell
Map and the Map A referred to in that Convention :
"We declare, that,
"As to the first point, to wit, the question, what is the plat
designated in the Treaties as the Northwest Angle of No\
Scotia, and what are the Highlands dividing the Kivers thj
empty themselves into the Kiver St. Lawrence from those whir
fall into the Atlantic Ocean, along which is to be drawn tl
line of boundary from that angle to the North westernmost hea
of Connecticut River:
'^Considering:
"That the High Interested Parties respectively claim thj
line of boundary at the south and at the north of the river S
John; and have each indicated ni>on the Map A the lit
which they claim :
"Considering:
"That, according to the examj^les given, the term Highlani
applies not only to a hilly or elevated country, but also to Ian
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THE NORTHEASTERN BOUNDARY.
129
f
icb, without being billy, divnlyi* wixters tlowiiijr in dittereiit
ections; and therefore that tlic mure or le.s*j hilly iiiid eleviited
iracter of the country throujrli which are drawn the two lines
pectively claimed, at the north and at thi^ Hontfj of the
er St. John, cannot form the basis of itchuice between tltern ;
'That tlie text of the 2nd Arti<-le f^l' the Treaty f>n7S.S reciti^s,
part, the words previously (ksed iii tlic rroclamation of
13 and in the Quebec Act ol 1774 to indicate the s^ioutljcni
indaries of the (xovernmeiii of (Jnhoc> from Lake Cham-
in, 'in forty- five degrees of North latitmle, along the high-
ds which divide the rivers that cinpfy thrnmelveM into tlie
er St. Lawrence, from those wliii^h fall into the Sea, and also
ng the North Coast of the K;*y ih%s <'haleurs;'
•That in 1763, 17(55, 1773, and^ I7S2, it was established tiiat
va Scotia should be bounded al the north, as fai- as the we^t
extremity of the Bay des Cliah^urs, by t lie sraithern bound-
' of the Province of Quebec; that this delimitation is again
nd, with respect to the Province of Quebec, in the Couimis-
II of the (lovernor General t^f *^>ucbec of 178(s wherein the
guage of tlie prochimation of lT<i3, and of the (^hiebec Act
1774, has been used, as also in the Commissions n\' lT8<i and
ers of subsetjuent dates of the iioveniors of New Bnins-
:k, with respect to the last iiuMitioneil Province, as well as
I great number of maps anteiitn- and |»ostt^rior to the Treaty
17S3; an<l that the 1st Article of the said Treaty specifies,
name, the States whose indcj^endenct^ is a<kii()wlcdged;
■But that this speciticatimr docs nut imply the entire
ncidence of the boundaries between the two Powers, as set-
1 by tlie succeeding Article, with the arjciejit delimitation of
I British Provinces, whose in'cscrvation is not inentiune*! in
\ Treaty of 1783, and which, (^wiiig to its cordinual (;lianges,
1 the uncertainty which eoutinuod to exist res]H*cting it,
ated from time to time diffeienees between the Pnjviufiai
ihorities;
'That there results from the lijie drawn under the Treaty of
►.3, through the great Lakes, west of the river 8t, Lawrence,
eparture from the ancient Provineial charters, with regard
those boundaries;
^That one would vainly attc^nipt to explain why, if the inteu-
ti was to retain the ancient I'rovineial boundary, Mitcheirs
.p, published in 1755, and eonscrjneutly auteiior to the
>clamation of 1763, and to tlie tjuebee Act of 1771, was pre-
ely the one used in the negotiation nf 1TS3;
'That Great Britain proposed, at lirst, tlie river l*iscata<jua
the eastern boundary of the Uiiited iSrates; iuu\ did not sub-
[uently agree to the proposition to eause the boundary of
,ine, or Massachusetts Bay, to be aseertained at a later
•iod;
'That the Treaty of Ghent stipulated for a new exaniinati*in
the spot, which could not he aijplicable to an liistoiieal
administrative boundary;
5627 9
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130 INTERNATIONAL ARBITRATIONS.
"And that, therefore, the ancient delimitation of the British
Provinces, does not, either, aftbrd the basis of a decision;
"That the longitude of the northwest angle of Nova Scotia,
which ought to coincide with that of tlie source of the St,
Croix river, was determined only by the Declaration of 1798,
which indicated that river;
"That the Treaty of Friendship, Commerce, and Navigation
of 1794, alludes to the doubt which had arisen with respect to
the river St. Croix; and that the first instructions of the Con-
gress, at the time of the negotiations, which resulted in the
Treaty of 1783, locate the said angle at the source of the river
St. John.
"That the latitude of that angle is upon the banks of the
St. Lawrence, according to Mitchell's Map, which id acknowl-
edged to have regulated the joint and official labors of the
negotiators of the Treaty of 1783; whereas, agreeably to the
delimitation of the Government of Quebec, it is to be looked
for in the highlands which divide the rivers that empty them-
selves into the river St. Lawrence, from those which fall into
the sea;
"That the nature of the ground east of the before mentioned
angle not having been indicated by the Treaty of 1783, no
argument can be drawn from it to locate that angle at one
place in preft^rence to another;
"That, moreover, if it were de<emed proi)er to place it nearer
the source of the River St. Croix, and look for it, for instance, at
Mars Hill, it would be so much the more possible that the
boundary of New Brunswick, drawn thence northeastwardly,
would give to that province several Northwest angles, situated
farther north and east, according to their greater remoteness
from Mars Hill since the number of degrees of the angle
referred to in the Treaty is not mentioned;
"That, consequently, the Northwest angle of Nova Scotia,
here alluded to, having been unknown in 1783, and the Treaty
of Ghent having again declared it to be unascertained, the
mention of that historical angle in the Treaty of 1783 is to be
considered as an evasion of the question {peUfion depr\ndpe\
aifording no basis for a decision ; whereas, if considered as a
tojmgraphical ])oiut, having reference to the definition, viz:
'that angle which is formed by a line drawn due north from
the source of the St. Croix liiver to the Highlands,' it forms
simply the extreujity of the line 'along the said Highlands,
which divide those rivers that empty themselves into the river
St. Lawrence, from those which fall into the Atlantic Ocean/
an extremity which a reference to the Northwest an g^ of Nova
Scotia does not contribute tx> ascertain, and which stfll remain-
ing itself to be found, cannot lead to the discovery of the line
which it is to terminate;
"Lastly, that the arguments deduced from the rights of sov-
ereignty exercised over the Fief of Madawaska, and over the
Madawaska Settlement — even admitting that such exercise
Digitized by LjOOQIC
THE NORTHEASTERN BOUNDARY.
131
3re suflBciently proved — cannot decided the question, for the
asou that those two settlements embrace only a portion of
e territory in dispute, and that the High Interested Parties
tve acknowledged the country lying between the lines re-
ectively claimed by them, as constituting a subject of contcs-
tion, and that therefore possession cannot be considered as
rogating from the right; and that if the ancient delimitation
the Provinces adduced in support of the line claimed at the
>rth of the river St. John, and especially that which is men-
)ned in the Proclamation of J 763, and in the Quebec Act of
74, be set aside, there would be no ground for admitting,
sui)port of the line claimed at the south of the river St.
>hn, the arguments tending to prove that that part of the
rritory in disi)ute belongs to Canada or to New Brunswick:
JONSIDERING :
"That the question, divested of the inconclusive arguments
awn from the nature, more or less hilly, of the ground, — from
e ancient delimitation of the Provinces, — from the Northwest
gle of Nova Scotia, and from the actual possession, resolves
;elf, in the end, into these questions: What is the line drawn
le north from the source of the river St. Croix, and what is the
ound, no matter whether hilly and elevated or not, which, from
at line to the Northwestern most head of Connecticut river,
vides the rivers that empty themselves into the river St.
kwrence from those which fall into the Atlantic Ocean ; That
e High Interested Parties only agree upon the fact that the
undary sought for must be determined by such aline, and by
ch ground ; that they further agree, in view of the Declaration
1798, as to the answer to be given to the first question, with
& exception of the latitude at which the line drawn due north
>m the source of the St. Croix river is to terminate; that said
;itude coincides with the extremity of the ground which, from
at line to the North westernmost source of Connecticut river,
k^ides the rivers which empty themselves into the river St.
,wrence from those which fall into the Atlantic Ocean; and
at, therefore, it oidy remains to ascertain that ground;
^' That on entering ui)on this operation, it is discovered, on
3 one hand :
'First, that if, by adoi)ting the line claimed to the north of
3 river St. John, Great Britain cannot be considered as
taining a territory of less value than if she had accepted in
i3 the river St. John as her frontier, yet, that, taking into
jw the situation of the country lying between the rivers St.
hu and St. Croix in the vicinity of the sea, and the possession
both banks of the river St. John in the lower part of its
irse, this compensation would nevertheless be destroyed by
3 interruption of the communication between Lower Canada
d New Brunswick, especially between Quebec and Fred-
cton; and that one would vainly seek to discover what motive
Digitized
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132 INTERNATIONAL ARBITRATIONS.
could have determined the Court of London to consent to such
an interruption:
'' That if, in the second place, in contradistinction to the rivers
that empty tliemselves into the river St. Lawrence, it had been
po8sible,agreeably to thelanguageordinarilyusediu geography,
to comprehend the rivers falling into the Bays of Fundy and
des Chaleurs with those emptying themselves directly into the
Atlantic Ocean, in the generic denomination of rivers falling
into the Atlantic Ocean, yet it would be hazardous to include
in that category the rivers St. John and Eestigouche, which
the line claimed at the north of the river St. John divides
immediately from rivers emptying themselves into the river St.
Lawrence, not with other rivers ftUling into the Atlantic Ocean,
but alone; and thus to apply, in interpreting the delimitation
established by a Treaty, where each word must have a meaning,
to two strictly special cases, and where no mention is made of
the genus, a generic expression which would ascribe to them
a broader meaning, or which, if extended to the Schoodiac
Lakes, the Penobscot and the Kennebec, which empty them-
selves directly into the Atlantic Ocean, would establish the
l)rincii)le that the Treaty of 1783 meant highlands which divide,
as well mediately as immediately, the rivers that empty them-
selves into the river St. Lawrence from those which foil into the
Atlantic Ocean — a princij)le equally realized by both lines:
" Thirdly: That the line claimed at the north of the river St.
John does not divide, immediately, the rivers that empty them-
selves into the river St. Lawrence from the rivers St. John and
Restigouche, but only Rivers that empty themselves into the
St. John and Restigouche, with the exception of the last j>art
of said line, near the sources of the river St. John; and that
hence in order to reach the Atlantic Ocean, the rivers divided
by that line from those that empty themselves into the river
St. LaAvrence, each need two intermediate channels, to wit:
some, the river St. John and the Bay of Fundy ; and the others,
the river Restigouche and the Bay des Chaleurs:
"And on the other hand,
" That it cannot be sufficiently explained how, if the high
Contracting Parties intended in 1783 to establish the bound-
ary at the south of the river St. John, that river, to which the
territory in dispute is in a great measure indebted for its dis-
tinctive character, has been neutralized and set aside:
" That the verb 'divide' appears to require the contiguity of
the objects to be Hlivided : '
" That the said boundary forms at its western extremity, only,
the immediate separation between the river Mettjarmette, and
the Northwesternmost head of the Penobscot, and divides,
mediately, only the rivers that empty themselves into the river
St. Lawrence from the waters of the Kennebec, Penobscot,
and Schoodiac Lakes ; while the boundary claimed at the north
of the river St. John divides, immediately, the waters of the
Digitized by LjOOQIC
THE NORTHEASTEEEK BOUNDARY.
133
Ts Restigouche and St. John, ami mediiitely the Schoodiac
:es and the waters of the rivers Ptmoljsa)t nuil KeijnetxH%
Q the rivers that empty themselven into thi^ river 8t> liiiw-
3e, to wit: the rivers Beaver, Metis, Hiinousky, Trois Pis
s, Green, Du Loup, Karaouraskji, Oiielle, Hraa 8L Nicholas,
8ud, La Famine and Chaudiert- :
That even setting aside the rivers lies tii^^mi die and St, Joliii,
the reason tliat they could not btM^ousiileied as laHiiii;' int^j
Atlantic Ocean, the northern line would still he as neai-
he Schoodiac Lakes, and to the watt^rs <jf tiie PeiMjl>seot
. of the Kennebec, as the southern line would lie tt> tUr
jrs Beaver, Metis, Rimousky, and others tluit eiupty tlierri-
^esinto the river St. Lawrence; iiiid wmild, a» well ua the
Br, form a mediate separation between the^e and the rivers
ing into the Atlantic Ocean:
That the prior intersection of tlie southern boundary by a
> drawn due north from the S0Il^ei^ nf tin' St, Croix river,
Id only secure to it an accessory julvaiitii^^e over flu* other,
ase both the one and the other boundary should t^ouibiiie,
he same degree, the qualities re<|uiit'd by flie Treaties:
And that the fate assigned by that of 1783 to th** Conneeti-
, and even to the St. Lawrence, jHerhnlef^ the suppositicm
b the two Powers could have iat-emh^d to surnMider the
)le course of each river from its source to its uiuuth to the
re of either the one or the other:
3NSIDEUING :
That, in view of what precedea, the arfjunTent.s adduced on
ler side, and the documents exhibited in sujUKvrtof theni.t-au^
be considered as sufficiently prepoinlerating to determine a
ferencoin favor of either one of the two lines respectively
med by the High Interested Parties, an the boundaries cif
ir possessions, from the source ot i lie river *St, Croix to tln^
'th westernmost head of the Connect ieut river; and tliat the
ure of the difference and the va^^ue and not sullicieiitly
Brminate stipulations of the Treaty of 178-1, do not permit ns
tward either of those lines to one <ir tiie naid Parties, with
violating the principles of law and equity with regard to
other :
ONSIDERING :
That, as has already been said, the question rosnlveR itself
> the selection of ground dividing the rivers that empty
aiselves into the river St. Lawrence from tliose that Ihil
i the Atlantic Ocean; that the lligli Interested Parties are
eed with regard to the course o! tlie streams deliiieattMl by
imon a<*.cord on the Map A and afl'ording the (»nly basin
i decision ; '
And that, therefore, the circuInstanc€^^4 n[K>n which surh
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134 intp:rnational arbitrations.
decision depends could not be further elucidated by means
of fresh topographical investigation, nor by the production of
additional documents:
<'Wk are of opinion:
" That it will be suitable (il conviendra) to adopt, as the bound-
ary of the two States, a line drawn due north from the source
of the river St. Croix to the point where it intersects the mid-
dle of the thalweg^ of the river St. John; thence, the middle
of the thalweg of that river, ascending it, t/O the i>oint where
the river St. Francis empties itself into the river St. John;
thence, the middle of the thalweg of the river St. Francis,
ascending it, to the source of its southwesti'rnmost branch,
which source we indicate on the Map A by the letter X,
authenticated by the signature of our Minister of Foreign
Affairs; thence, a line drawn due west, to the point where it
unites with the line claimed by the United States of America,
and delineated on the Map A; thence, by said line to the point
at which, according to said map, it coincides with that claimed
by Great Britain; and thence, the line traced on the map by
the two Powers, to the northwesternmost source of Connecti-
cut River.
"As regards the second point, to wit: the question, which is
the Northwesternmost head of Connecticut river:
" Considering :
" That, in order to solve this question, it is necessary to choose
between Connecticut-lake River, Perry's Stream, Indian Stream
and Hall's Stream :
'^Considering:
"That, according to the usage adopted in geography, the
source and the bed of a river are denoted by the name of the
river which is attached to such source and to such bed, and by
their greater relative importance, as compared to that of other
waters communicating with said river:
"Considering:
" That an official letter of 1772 already mentions the name of
Hall's Brook, and that, in an official letter of subsequent date,
in the same year, Hall's Brook is represented as a'small river
falling into the Connecticut;
"That the river in which Connecticut Lake is situated ap-
pears more considerable than either Hall's, Jndian or Perry's
Stream; that Connecticut Lake and the two Lakes situated
northward of it, seem to assign to it a greater volume of water
than to the other three rivers; and that by admitting it to be
the bed of the Connecticut, the course of that river is extended
^ The deepest cbanuel of a river.
Digitized by LjOOQIC
THE NORTHEASTERN BOUNDARY.
135
ther than it would be if a preference were given to either
the other three rivers;
* Lastly, that the Map A having been recognized by the
nvention of 1827 as indicating the courses of streams, the
thority of tliat map would likewise seem to extend to their
pellation, since in case of dispute such name of ri veror lake,
ipecting which the parties were not agreed, might have
en omitted; that said map mentions Connecticut Lake, and
it the name of Connecticut Lake implies the applicability of
3 name of Connecticut to the river which Hows through the
d lake:
(Ve are of opinion:
'That the stream situated farthest to the northwest among
>se whicii tall into the northernmost of the three Lakes, the
it of which bears the name of Connecticut Lake, must be
nsideied as the northwestemmost head of Connecticut river.
■'And as to the third point, to wit : the question, What is the
imdary t^ bo traced from the river Connecticut, along the
ndlel of the 45th degree of north latitude, to the river St.
Avrence, named in the Treaties Iroquois or Cataraguy:
Considering:
•' That the High Interested Parties diifer in opinion as to the
estion — Whether the Treaties require a fresh survey of the
lole line of boundary from the river Connecticut to the river
. Lawrence, named in the Treaties Iroquois or Cataraquy, or
iiply the completion of the ancient provincial surveys:
Considering;
'< That the fifth article of the Treaty of Ghent of 1814 does
t stipulate that such portion of the boundaries as may not
ve hitherto been surveyed, shall be surveyed; but declares
at the boundaries have not been, and establishes that they
all be, surveyed:
^' That, in effect, such survey ought, in the relations between
B two Powers, to be considered as not having been made from
BConnecticuttothe river St. Lawrence, named in the Treaties
>quoi8 or Cataraquy, since the ancient survey was found to
incorrect, and had been ordered, not by a common accord
the two Powers, but by the ancient provincial authorities:
''That in determining the latitude of places it is customary
follow the principle of the observed latitude;
"And that the Government of the United States of America
s erected certain fortifications at the place called Rouse's
unt, under the impression that the ground formed part of
eir territory — an impression sufficiently authorized by the
'cumstance that the line had, until then, been reputed to
rrespoud with the 45th degree of north latitude:
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136 INTERNATIONAL ARBITRATIONS.
'< Wb are of OPINION :
"That it will be suitable to i)roceed to fresli operations to
measure the observed latitude in order to mark out the bound-
ary from the river Connecticut along the parallel of the 45th
degree of north latitude to the river St. Lawrence, named in
the Treaties Iroquois or Cataraiiuy, in such manner however
that, in all cases, at the place called House's Point, the terri-
tory of the United States of America shall extend to the fort
erected at that place, and shall include said fort and its Kilo-
metricul radius (rayon Kilometriquc,)
"Thus done and given under our Royal Seal, at the Hague,
this tenth day of January, in the year of our Lord one thousand
eight hundred and thirty-one, and of our Reign the eighteenth.
" William.
"Verstolk van Soelen,
"T/^ Minisfer of Foreign Affairn,^
Analyzing this award, we find that as to the
AnalyiU of Award, line from the northwest angle of Nova Scotia
to the north westernmost hejwl of Connecticut
River, the arbitrator held (1) that the term ^Miighlands" was
applicable to ground which, without being mountainous or
hilly, divided rivers flowing in opposite directions; but (2) that
it was not shown that the boundaries described in the treaty
of 1783 coincided with the ancient limits of the British prov-
inces; and (3) that neither the line of highlands claimed by
the I ' nited States nor that claimed by Great Britain so nearly
answered the requirements of the treaty of 1783 in respect to
the division of rivers as to g\\^. a i)reference to the one over
the other. Abandoning therefore the attempt to determine
this part of the boundary according to the treaty of 1783, he
recommended a line of convenience.
As to the uorthwesternmost head of Connecticut River, he
held that it was the stream farthest to the northwest among
those that fall into the northwestern most of the three lakes,
the last of which bears the name of Connecticut Lake.
As to the forty-fifth parallel of north latitude, the arbitrator
held that it should be determined by the customary principle
of observed latitude, without regard to prior surveys, but
expressed the opinion that the ITnited States should be left in
the possession of the fort at Rouses Point.
Estimating the disputed territory to contain an area of
12,027 square miles, or 7,097,280 acres, the award of the arbi-
trator gave to the United States 7,908 square miles, or 5,061,120
Digitized by VjOOQ IC
THE NORTHEASTERN BOUNDARY. 137
acres, and to Great Britain 4,119 square miles, or 2,63(),160
acres*
On the 12th of January 1831 Mr. Preble,
Beoommendatory ^]^q ^g^ f^y^^^^ eiivoy extraordinary and niin-
Awaid*Prot«Ltof ^*^^'** plenipotentiary of the United States at
Mr. Preble. The Hague, addressed to the minister for
foreign affairs a note respectfully protesting
against the award, and reserving the rights and interests of
the Unite<l States, on the ground that the proceedings of the
arbitrator constituted a departure from his powers. The ques-
tion where the boundary should run, said Mr. Preble, if the
treaty of 1783 could not be executed, was one which, he
believed, the United States would submit to no sovereign.
As to the opinion of the arbitrator that the ranges of high-
lands respectively claimed by the United States and Great
Britain comported equally well in all respects with the lan-
guage of the treaty, Mr. Preble said he did not intiMid to
question its correctness. But when the arbitrator proceeded
to say that it would be suitable to run the line due north from
the source of the Kiver St. Croix, not " to the highlands which
divide the rivers that fall into Atlantic Ocean from those
which fall into the river St. Lawrence," but to the center of
the Kiver St. John, thence to pass up that river to the month
of the Biver St. Francis, thence up the Kiver St. Francis to
the source of its southwestern most branch, and from thence
by a line due west to the highlands claimed by the United
States, and only from that point along the highlands de
scribed in the treaty, thus abandoning the boundaries of the
treaty and substituting for them a different line, Mr. Preble
said it became his duty, *' with the most perfect respect for
the friendly views of the Arbiter, to enter a l*rotest against
the proceeding, as constituting a departure from the powers
delegated by the High Interested Parties, in order that the
rights and interests of the United States may not be supposed
to be committed by any piesumed acquiescence on the part of
their Representative near His Majesty, the King of the
Netherlands." ^
The British Government, while perceiving
Mutuai^^ Mver 0 ^j^^^ ^j^^ award was recommendatory rather
than decisive, expressed its acquiescence in
it, but authorized its minister at Washington privately to
' S. Ex. Doc. 3, 22 Cong. 1 sess.
Digitized by LjOOQIC
138 INTERNATIONAL ARBITRATIONS.
intimate to the United States that it would not consider th^
formal acceptance of the awiird by the two governments as
precluding modifications of the line by mutual exchange and
concession.' The Government of the United States for a time
hesitated. Mr. Preble's protest was imide without instruc-
tions,^ and President Jackson was inclined to accept the award
lie afterward regretted that he had not done so.^ The award
was, however, unsatisfactory both to Maine and to Massachu
setts, and on December 7, 18:51, the President submitted tbe
question of its acceptance or rejection to the United Stiites
Senate. The Senate in June 1832, by a vote of 36 to 8,
resolved that tlie award was not obligatory, and advised the
President to open a new negotiation with Great Britain for
the ascertainment of the line.* The British Government,
though it declined to consider the question of the navigation
of the St. John in connection with the boundary question,
promised to enter upon the negotiations in a friendly spirit;
and it was agreed that both sides should in the mean time re-
frain from exercising any jurisdiction beyond the boundaries
which they actually possessed.^
Meanwhile the Government of the United
Negotiations of gtates entered into an unsuccessful negotia
unitedstateswith ^.^^^ ^.^j^. ^^^ ^^^^^ ^^ Maine, with a view to
Maine. '
obtain a free hand for effecting a settlement.
It was proposed that the legislature of Maine should provision-
ally surrender to the United States all territory id aimed by the
State north of the St. John and east of the liiver St. Francis,
Maine to be indemnified by adjoining territory for the ultimate
loss of any part of the territory thus surrendered, and, so far
as the adjoining territory should prove inadequate, by Michigan
lands, at the rate of a million acres of such lands for the whole
of the territory surrendered, the lands thus appropriated to \h}
sold by the United States and the proceeds paid into the
treasury of Maine. An agreement or '* treaty" to this effect was
actually signed in 18.'52 by Edward Livingston, Secretary of
State, Louis McLane, and Levi Woodbury, on the part of the
United States, and by William Pitt Preble, Ruel Williams,
and Nicholas Emery, on the part of Maine. It never ^as rat-
' Br. and For. State Papers, XXII. 772, 776, 783.
- S, Ex. Doc. 3, 22 Cong. 1 scss.
^Curtis's Life of Webster, II. 139.
< Br. aucl For. State Papers, XXII. 788, 850, 871,
* Br. and For. State Papers, XXII. 788, 795.
Digitized by LjOOQIC
THE NORTHEASTERN BOUNDARY. 139
ified. Nor did the fact that it was concladed become public
till long after the transaction had failed.^
In April 1833 Mr. Livingston made to the
Proposal of Heoin. British minister at Washington a proposal
liYingftoaandHc ^^^^^ ^j^. Q^llatin once declared to be "in-
Lane.
comprehensible."* He proposed that, in con-
nection with the appointment of a commission of European
experts, fresli surveys should be miule, and that if it should be
found that the line due north from the source of the St. Croix
would not reach the highlands described in the treaty of 1783,
a line should be drawn from tlie source of the St. Croix directly
to such highlands, whatever its direction might be.^ This propo-
sition was further explained by Mr. McLane, Mr. Livingston's
successor. Tlie first duty of the commissioners, said Mr. Mc-
Lane, would be to find the highlands, whether north or south
of the St. John ; and it would then be their duty to draw a line
from the monument at the head of the St. Croix to that point
in the highlands which should be nearest to a due-north line,
but not in any case to deviate to the eastward.*
The British Government, thinking that
British Proposal for nothing could be accomplished by a new con)-
▼mon 0 em- mij^g^j^^jj .^q^| further surveys, unless the parties
could previously agree as to i^hat were *' riv-
ers falling into the Atlantic Ocean,''* now formally withdrew
its offer to accept the compromise recommended by the King of
the Netherlands, and proposed to divide the territory by tak-
ing the River St. John, from its intersection by the due-north
line to its southernmost source, as the boundary."
The President declined this ])rofk)sal, but
United States' Pro- offered to Solicit the consent of Maine to make
posai of the St ^^^ g^. j^j^^ ^^^^ ^^^ source to its mouth the
JohiL
boundary.' To this offer the British rei)re-
' S. Ex. Doc. 4ai, 25 Conij. 2 sees.
'^Mr. GaUatin to Mr. Davies, June 14, 1839, Adains'ti Writings of Gallatin,
11. 546.
'Br. and For. State Papere, XXII. 804, 812.
' Br. and For. State Papers, XXII. 818-^20. Mr. Gallatin said that Mr.
Livingston and Mr. McLane ** sadly departed" from the true ground,
"simply because they did not take the trouble to examine the question."
(Letter to Mr. Howard, Nov. 5, 1840, Adams's Writings of Gallatin, II. 549.)
»Br. and For. State Papers, XXII. 826, 857.
'•Mr. Bankhead, British charg<«, to Mr. Forsyth, Sec. of State, Dec. 28,
1835. (Br. and For. State Papers, XXIV. 1179.)
' Br. and For. State Papers, XXII. 1184; XXV. 903; S. £x. Doo, 319, 25
Cong. 2 <
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140 INTERNATIONAL ARBITRATIONS.
sentative at once replied that be was convinced bis govern-
ment would never agree to it.* On the 15tb of June 1836 tbe
correspondence was communicated to tbe Senate.^
Tbus tbe negotiations stood at tbe close of
state of Caae daring President Jackson's administration, wben tbe
*" -^^' tbread was taken up by President Van Buren.
minifltratioii.
In bis first annual message of December o,
1837, President Van Buren adverted to the subject and ex-
presse<l the bope tbat *'an early and satisfactory adjustment'^
of it would be effected.^ On tbe 20tb of Marcb 1838 be
sent a message to tbe Senate, witb recent correspondence
between the Secretary of State, Mr. Forsytb, and tbe Britisb
minister, Mr. Fox.* By tbis correspondence it appeared tbat
tbe question of a new commission was still i)ending, tbougb
neitber party seemed to entertain strong bopes tbat sucb a
mode would, if tried again, be successful. It also appeared
tbat Mr. Forsytb bad sougbt tbe opinion of tbe government
of Maine as to tbe suloption of a new conventional line as tbe
only amicable way of settling tbe dispute except by an arbi-
tration. Governor Kent submitted tbe question to tbe legis-
lature, wbicb on tbe 23d of Marcb 1838 resolved (I) that it
was not expedient to assent to tbe Federal Government's treat-
ing for a conventional line, but tbat tbe State would insist
on tbe line establisbed by tbe treaty of 1783; (2) tbat tbe State
bad not assented to tbe appointment of an arbitrator under
tbe Treaty of Gbent, and was not prepared to consent to tbe
appointment of a new one; (3) tbat tbe Senators and Repre-
sentatives of Maine in Congress be requested to urge tbe pas-
sage of a bill tben pending for tbe survey of tbe boundary;
and that, if tbe bill sbould not during tbe current session of
Congress become a law, and tbe Government of tbe United
States sbould not before tbe 1st of September, eitber alone or
in conjunction witb Great Britain, appoint a commission to
make a survey, it sbould be tbe imperative duty of the gover-
nor to appoint commissioners for ascertaining, running, and
locating tbe line, and to cause it to be carried into operation.^
' Br. aud For. State Papers, XXII. 1187.
-The int'ssage and correspondence were ])nbliBlied, much, it seenin, t^*
the annoyance of tbe President and tbe Secretary of State. (Br. and For.
State Papers, XXV. 907-908.)
"Br. and For. StaUi Papers, XXV. 916-917.
^S. Ex. Doc. 319, 25 (^ong. 2 sesa.
'•On July 4, 1S38, tb(^ Corunilttee on Foreign Relations of the United
States Senate reported adversely tbe bill directing tbe President to ransf*
tbe boundary to be *' surveyed aud marked." (S. Rep. 502, 25 Cong.
2 seas. )
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THE NORTHEASTERN BOUNDARY.
141
Negotiations for aiiotlier arhitmtioti hui
Sia'ih**?^'d g"^8^^<l a^^n^ ^^^ *^^I"e^ "«*'l**^ y^*^l*^t ^^^t^*
fudge. raany projects and coiHitei-[»nijec(H,' and ia the
mean time new but indep<Muh*rjt .snrvey.s wem
ide by both governments. In ISIlfl JMeissr^. Feat 1 lers ton-
ugh and Mudgo surveyed a part of the t territory in dispute
* the Britisli Oovernment and subseqiUMitly presented their
ill-known report, in which they took the ground that all
ior lines were erroneous, and i)roposed a new one.* By the
ant of James I. to Sir William Alexander, Novsl Seoiia was,
we have seen, bounded on the west by a line drawn from
. Marys Bay *^ versus septentrionem" (toward the uortli)
•ectly across the mouth of the Bay of I'undy to the Bt.
oix River, and thence up that river to the ri^motest source
spring on its western side; and from that ]K>iiit by an imagf-
ry direct line ''versus septentriouetii" to the nearest slui>
id, river, or spring emptying itself \utf> the Itiver St* Law
ice. Messrs. Featherstonhaugh and Mml^tuliseovered that
a words "versus septentrionem,'' which liad always been
inslated "toward the north," really meant 'Miorthwest.'-
ich was, in fact, the direction of the line fnnu St, ^^arys Kay
the St. Croix laver; and such abo, tliey argued, was the
'ection of the line from the mouth of that river to tlie tnie
irce or spring mentioned in the grants which, thou^^h eitlier
sunderstood or disregarded by Ike coTttmissioners innh-r
•tide V. of the Jay Treaty, evidently intended tlie weKteni
)8t waters of the Scoodeag (Schotuliae) hikes, *^1 laving
iched the most remote spring where the land iiortage be
18, we find," they said, "the old course rtTfutH m'ptcnfrtmtem,
north-west, again enjoined, and direeted to he rolhnve<l by a
*aight hue drawn in that direction tu the nearest naval sta-
in, river, or S[)riug, discharging itself into the great river <>t
^nada. Such a course leads directly to tlie (»ast bj-anclu s
the Chaudiere, which are in the 4Ctli parallel of uortli lati-
lie, and on the ancient confines of Acadia/' Here they
md a starting point from which to follow the highlands.
Webster's Works. VI. 89-98.
George WiUiam Featherstonhaugh, who i& refbrrud to iti the text, hi lii^
ly life spent many years in North Americu. In 1k;W-:15 ho jnmU* for ibv
ir Department of the United States a geol«»jriciil iQsjwctjoTi nf parts of
I West; and in his reports, which were printed by order of Coni^n-Rs, he is
icribed as "United States Geologist." He [irojccted a geological map
the United States. After he completed his labors as a commifijiioucir for
I British Govt^mment in relation to the uortbeasteru boundary^ he ^vao
K>inted a British consul in France, where in i860 he ilted.
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142 INTERNATIONAL ARBITRATIONS.
As to the highlands, Messrs. Featherstouhaugh and Madge
said that the Green Mountains, whicli ran from south to north
between the rivers Hudson and Connecticut, divided at the
forty-fourth degree of north latitude into two branches, of
which the southern, proceeding northeasterly, separated the
head waters of the Chaudiere from those of the Connecticut,
the Kennebec, and the western branches of the Penobscot.
This was, they maintained, the ridge designated in the x)roc]a-
mation of 1763; and, though toward the east its height was
diminished, it continued to form the ^^axis of maximum eleva-
tion," and farther on its course toward the Bay of Chaleurs
attained an altitude of 2,000 feet. This axis of maximum ele-
vation they presented "as the true Highlands intended b}' the
2nd article of the treaty of 1783, uniting to the character of
* Highlands,' as contradistinguished from lowlands, the condi-
tion required by the treaty, of dividing the * rivers that empty
themselves into the river St. Lawrence from those which flow
into the Atlantic Ocean, to the uorthwesternmost head of
Connecticut lliver.'"
As appears by the map at the beginning of this chapter, the
line of Messrs. Featherstouhaugh and Mudge int-ersects the
highlands claimed by Great Britain before the King of the
Netherlands. Nor does it in th€f whole of its northeasterly
course from the source of the Chaudiere touch any stream
flowing into the River St. Lawrence, or, for a large part of the
way, run within a hundred miles of them, or in fact " divide,
intersect, or touch any other rivers than the St. John, and the
tributary streams of that river, or those which fall into the Bay
des Chaleurs." ^
In the Westminster Review for June 1840 Mr. Charles
Buller, it is said with the approval of Lord Palmerston,* pro-
posed yet another line. Admitting that the lines of the treaty
of 1783 were not new lines, but were those intended by the
proclamation of 1763, the act of 1774, and the commissions of
the governors of Quebec and Nova Scotia, he argued that the
principal object of the boundary was to connect the head of
the Connecticut River with the head of the Bay of Chaleurs,
This connection he proposed to make by drawing a straight
line from the source of the Restigouche to the head of the
Connecticut.
' Gallatin's The Right of the United States of America to the Northeast-
ern Boundary Claimed by Them, 151.
"North American Review (1843), LVI. 467.
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143
In the American Almanac for 1840 there is
^'^g^ * a temperate and intelligent article by Mr.
Nathan Hale, who was then the editor of the
ffon Daily Advertiser, Admitting, said Mr. Hale, that
St. John was a river falling into the Atlantic Ocean in the
se of the treaty, yet the place claimed by the United States
the terminus of the due-north line divided waters flowing
) the liiver St. Lawrence from waters flowing into the Bay
Chaleurs. There was no reason to presume that the
ners of the treaty supposed that the waters of the liesti-
iche would be intercepted by the due-north line, nor was
re satisfactory ground for regarding that river, whose gen-
I course was toward the River St. Lawrence rather than
ard the Atlantic Ocean, and which actually fell into the
if of St. Lawrence near the river of that name, as belong-
to the class of rivers that fall into the Atlantic Ocean as
tinguished from those that empty themselves into the River
Lawrence. There appeared therefore, said Mr. Hale, to
no good reason why the range of highlands which ran
ween the sources of the Restigouche and the River St.
;vrence should be assumed to be the highlands intended by
treaty; and the fact that the United States claimed them
^ht have given rise to the impression of the King of the
bherlands that the line was not susceptible of a literal and
Kit interpretation and execution. The true mode of inter-
ting the treaty was to ascertain the southern boundary of
ebec. This boundary ran along the highlands from the
y of Chaleurs to the source of the Connecticut River. In
\ commission to Sir Guy Carleton, governor of Quebec,
April 23, 1786, it was defined as " a line from the Bay of
aleurs along the highlands which divide the rivers that
pty themselves into the river St. Lawrence from those which
[ into the Atlantic Ocean, to the northwesternmost head of
Qnecticut river." These highlands, said Mr. Hale^ were
;ily traced in a single but irregular range from the most
•thwestern source of the Connecticut to the sources of the
stigouche, and formed the boundary delineated in Hale's
,p of New England, first published in 1826. It was the only
ineation that could be made according to the literal a:id
ict interpretation of the treaty. The due-north line should
Tefore terminate at these highlands, and not, as claimed by
\ United States, after crossing them.
I
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144 INTERNATIONAL ARBITBATIONS.
On tlio 20tU of July, 1840, Congress appro-
^^uSteTstote.^* priated $.25,000 for an "exploration and sur
vey " of the boundary line between the States
of Mjiine and Xew Hampshire and the British provinces, and
of the luljiicent country.' Under this act Jauies Kenwick,
James I). Graham, and A. Talcott were appointed as commis-
sioners. They were instructed (I) to explore and survey the
lines respectively claimed by the United States and Great,
Britain, and (2) to examine and report upon the arguments con-
tained in the report of I^Iessrs. Featherstonhaugh and Mudge.
Their first report bears date January G, 1811.^ It was neces-
sarily imi)erfect. They found and identified the iwiut deter-
mined upon under Article V. of the treaty of 1794 as the source
of the St. Croix, and prosecuted their surveys as far as the
season would permit. An additional appropriation of $75,000
was niiwle in February, 1841,'' i:i order tliat the work inigiit be
completed. On January 4, 1842, the comnussioners presented
a statement of what they had done, showing that their task
was not yet finished. Only SI miles of the meridian north
from the monument at the source of the St. Croix had been
surveyed, leaving 64 miles yet to be explored; tiie fine claimed
by Great Britain, and the line of Messrs. Featherstonhaugh and
Mudge, had for the most part been surveyed, but had not yet
been united ; and a pjirt of the highlands claimed by the United
States near the source of the liimouski had not been reached.
Various other points remained to be determined; and they
subniitted estimates for another appropriation to enable them
to complete their surveys and office work.* On March 31, 1842,
however, they presented what proved to be their last report.
It covered all their operations up to that time, and contained
an able refutation of some of tlie positicms of Messrs. Feather-
stonhaugh and Mudge, and particularly of their "axis of maxi-
mum elevation," which was found to represent eminences
separated one from another by spaces of comi)aratively low
and often swampy country so extended as to preclude the idea
of a continuous range of liighlands in the direction represented
upon the map of those commissioners.'
' 5 stats, at L. 402.
' II. Ex. Doc. 102, 26 Conjr. 2 sess.
=^ 5 Stats, at L. 413.
••S. Ex. Doc. 97, 27 Cong. 2 seas. The amount asked for was $55,801.75.
'' II. Ex. Doc. 31, 27 Cong. 3 acss. This report does not contain (iraham's
map of the disputed boundary, printed by order of the Senate in 1843.
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THE NORTHEASTERIf UOUHDARY.
145
While tlje ne^'otiatious aad mirveyn wore
arder fltrifea. tlrii^^^in^ along ulVaira on the border olteu
gave riso to anxiety. In 18^31 tbe iittemptof
iiiu peraoriJ^ to br>M an ele<*tion at tie KetMeinejit (vf Mada
ka under the laws of Maine led to tbeir arrest and trial hy
autborities of Kevv Brunsiwick, Tbey were couvicted and
e!iee*l to fine and imprisonment^ Imt were afterwanl re-
i?d on llie requestof tbe Uiirted Htate.s, their actKni having
I diaav^owed by tbe antbortties of MaioeJ Dispntes a« to
Hlietion eon tinned to oecnr/ In 183<> one Ah^xauder Kea*
anadran Jnstiee of tlie pence, and one or more associates
3 arrested by a party under the eomniundof an otlicer of
New Hampshire militia for attempting to execute proceBis
lie Indian Stream territory, win eh, oii the supposition that
bead of Halls Streatn was tbe bonnilary <»f tlie Tuited
:es, was witbm tbe American .jurisdictiun*^ la 18:J7 one
nexer Greely, who was engaged in taking a census for the
e of Maine in tbe Madawas^ka settlement, was arrested by
authorities of New B runs wick on the ground that be was
incting bis operation on Bntisii territory.^ Id the same
* a report that a niihvay wa^ [jrojeeted from Quebec to St,
liews, th rough the di imputed territory, under the patronage
je authorities of Canada j New Briiiiswiek,and Nova Scotia,
0 rise to a protest on the part of tbe fTniietl States, Tbe
ish Government directed tbe colonial autborities to cans©
operations within thedisimted territory to be discontinued-*
In 1838-39 what was known as the ** Rcstook
^E«Btook War/' war" broke out in the district bordering on the
River Aroostook. A laud agent sent by the
e of Maine with a posse to arrest British subjects who
9 cutting the tine timber in that district A^as seized and
risoned by the authorities of New Brunswick, Other
sts folio wed^ and something like a border war began.
, Ex. Doc- 3, 22 Cong. 1 sew,
r. *ad For. State Papi^ri*. XXll, lOaO; XXIII. 404, 426,
r. iUid For. Stall.' Papers, XXVll. Ji(29.
> Es. Doc- l2iK 2j llmii;;. 2 bcm. ; fir. aud For. Stat© Pfip«f«, XXVII.
[135- Coiii^ress oti July 7, 1838, appropriated #I/17o to rcimburbo tbe
) of Maiuu for aUosvanct!!) to Grei'i> tur Uiu siUlWiiigB utjil lo»»va in
011^011431^ of hU imprinotiniuut, aud to John Baker and othent I'or usim*
?aaf*p.
r. and For- Stat^ Papers, XXV* 93», B43,
5027
-10
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146 INTERNATIONAL ARBITRATIONS
Maine raised an armed civil x)os8e, and erected fortifications
in the territory. "There was Fort Fairfield, Fort Kent, and I
do not know what other fortresses,'' said Mr. Webster, "all
memorable in history." ^ The legislature of the State placed
$800,000 at tlie disposition of the governor, to be used for mil-
itary defense. Bills were passed by Congress authorizing the
President to call out the militia for six months and to accept
60,000 volunteers, and placing at his order an extra credit of
$10,000,000.2
General Scott was dispatched to the scene
Mediationiof General ^^ difficulty, but as a minister of peace rather
than of war. Before the end of March 1839
he brought about an arrangement between the authorities of
Maine and New Brunswick for the preservation of peace till the
question of jurisdiction might be settled. He invited from
the lieutenant-governor of New Brunswick a declaration to the
effect that it was not the intention of his government, without
renewed instructions from the home government, to seek to
take military possession of the disputed territory, or to endeavor
by military force to expel therefrom the armed civil posse
or the troops of Maine. If such a declaration should be re-
ceived, he intimated that the governor of Maine would declare
(1 ) that it was not his intention, without renewed instructions
from the legislature, to attempt by arms to disturb New Bruns-
wick in the possession of the Madawaska settlements, or to
attempt to interrupt the usual communications between that
province and Her Britannic Majesty's upper i)rovinces ; (2) that
he was willing, pending negotiations between the United States
and Great Britain, to let the question of possession and juris-
diction remain as it stood — Great Britain in fact holding i>08-
session of one part of the territory, and Maine in fact hold-
ing possession of another part, while each denied the other's
right of possession — and (3) that, with this understanding, he
would withdraw the military forces of the State from the dis-
l)uted territory, leaving, under a land agent, only a small civil
posse, armed or unarmed, to protect the timber recently cut
and to prevent future depredations. These declarations were
mutually and promptly made.^
» Webster's Works, V. 93.
«5 Stats, at L, 355.
3 Scott's Autobiography, II. 331-351.
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THE NORTHEASTERN BOUNDARY. 147
Such was the situation when Mr. Webster
^'J^^^J^ ill March 1S41 assumed charge of the Depart-
ment of State. To him the disputed boundary
was not a new question;' andj though the two governments
seemed to be committed to the phm of new surveys and new
attempts to arbitrate, he desired to try a "shorter way."^ He
intimated to the British minister at Washington that he was
willing to attempt a settlement by direct negotiation;^ and
early in the following year he learned, with surprise as well as
with satisfaction, that the British Government
Appomtoentof Lord ^^^ determined to send out Lord Ashburton
as a special minister, with full powers to set-
tle the boundary and all other questions in controversy between
the two governments.* Lord Ashburton arrived in Washing-
ton on the 4th of April 1842, and was presented to the Pres-
ident on the Cth.*
Mr. Webster now set about obtaining the
Commifldonen Ap- appointment of commissioners on the part of
^dM ^h *tta* ^^^ssachusetts and Maine with full authority
to represent those States at Washington.^ In
the case of Massachussetts this was easily accomplished. The
governor, who had already been invested by the legislature
with powers sufficient ibr the purpose, appointed as commis-
sioners Abbott Lawrence, John Mills, and Charles Allen.^ In
Maine it was necessary to convene the legislature; and, in
order that the matter might be properly conducted, Mr. Web-
ster in May paid a visit to Boston, and through «Tared Sparks,
who went as his representative to Augusta, took counsel with
the governor and leading members of the legislative assembly.
The governor was invested with the necessary power, but in
the resolution by which it was conferred tbe claim of the State
to the disputed territory was reasserted; and it was declared
that no concession made by Great Britain within that terri-
tory could be regarded as an equivalent for anything yielded
^Curtis's Life of Webster, II. 2-3.
2 Webster's Private Correspondeiu-e, II. 1()2.
3 Webster's Works, VI. 270.
^Webster's Private Corresiioncbmee, II. 113, 114, 120.
»Ciirtis'8 Life of Webster, II. 9«.
« Webster's Works, VI. 272.
7 Webster's Private Correspoudence, II. 119; H. Ex. Doc. 2, 27 Cong. 3
sees. 61.
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14S INTERNATIONAL ARBITRATIONS.
within it by Maine. These instructions, by excluding any
compromise of tlie territorial claims of Maine, rendered it
necessary to seek extrinsic compensation for anything that
might be conceded within her asserted limits. The commis-
sioners appointed on the part of Maine were William Pitt
Preble, Edward Kavanagh, Edward Kent, and John Otis.'
The Maine commissioners arrived in Wash-
^onjttflelL^" ington on the 12th of June, and those of
Massachusetts on the 13th; and on the latter
day Lord Ashburton addressed to Mr. Webster his first
official note on the boundary. The negotiations and corre-
spondence continued for some time without result. Lord
Ashburton proposed that the St. John should, from its inter-
section by the line due north from the source of the St. Croix,
form the boundary, except that the portion of the Madawaska
settlement south of the river should remain with Great Britain.
If this was conceded he was willing to yield the strip between
the old line and the true line of the forty-fifth parallel, and to
grant the privilege of floating timber down the St. John to its
mouth free of duty. The Maine commissioners decHned this
offer, and proposed to follow the St. John to a point three
miles above the mouth of the Madawaska, thence to draw a
direct line along the latter river to Long Lake, and from the
latter point to the entrance of the River St. Francis into
Lake Pohenagamook, and then on to the highlands separat-
ing the waters of the River Du Loup from those of the St.
Francis. On the 3d of July Mr. Webster thought that he was
'^not out of the woods on the boundary business.'" Indeed,
the triangular discussion seemed t-o be in danger of drifting
back into the old slough of geographical and historical con-
troversy. To avert this calamity Mr. Webster abandoned
written communications, and held with Lord Ashburton "full
and frequent conferences." In a few days the question was
practically settled ; and on the 15th of July Mr. Webster com-
municated to the Maine commissioners the terms which he
and Lord Ashburton thought eligible. Before the negotiations
• Cnrtis's Life of Webster, II. 98-102; Webster's Private Correspondence,
11.128,131. The legisbiture of New Hampshire passed a resolution re-
questing the Senators and Representatives of the State in ConjrroBs to
take such measures as might be necessary to sustain its interests in the
dispute. They submitted a statement to Mr. Webster. (H. Ex. Doc. 2, 27
Cong. 3 sess. 97.)
* Webster's Private Correspondence, II. 135.
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THE NORTHEASTERN BOUNDARY.
149
igan Mr. Webster was prepared to recommend that Great
ntain should be allowed to retain "her old and convenient
mmunication between the provinces,'' and even to hold all
e Madawaska settlements on the United States side of the
Btherlands line if the United States could obtain as equiva-
Qcs the right to convey lumber and produce from all the
ibutaries of the St. John to its mouth with no other tax
toll than was levied on similar British articles, and a
ssion of territory on the west side of the St. Jolni and east
the line running north from the source of the St. Croix.*
L the negotiations however the idea of territorial exchanges
arS abandoned, and a dififerent mode of compensating Maine
id Massachusetts was adopted. It was agreed to take as the
Kindary north from the source of the St. Croix the line run
id marked by the surveyors of the two governments in 1817
id 1818, to the middle of the channel of the St. John,
''hile this line was not entirely accurate, the errors in it
ere so inconsiderable that Mr. Webster did not deem their
►rrection a sufficient object to justify the disturbance of
le grants and settlements that had been made in reliance
K)n it.^ From the point where this north line strikes the
iddle of the channel of the St. John, it was agreed that the
)undary should follow the middle of the main channel of
lat river to the mouth of the River St. Francis; thence
> the middle of the channel of the St. Francis, and of the
kes through which it flows, to the outlet of Lake Pohenaga-
ook; thence southwesterly, in a straight line, to a point on
le northwest branch of the River St. John, which point should
3 ten miles distant from the main branch of the St. John, in
straight line, and in the nearest direction, provided that if
ich point should be found to be less than seven miles from the
rarest summit or crest of the highlands dividing the rivers
nptying themselves into the River St. Lawrence from those
» Mr. Webster to Mr. Everett, April 25, 1842, Webster's Private Corre-
ondence, II. 120, 122.
■^ The deflection in the "due-north" line as previously surveyed, though
ight, had th(3 effect of making the elevation of the line at the latitude
Mara Hill much greater than that of the true line. Major Graham
und in 1841 that the true line passed that latitude at an elevation of only
feet above the level of the monument at the source of the St. Croix;
at its greatest elevation in passing over any spur connected with Mars
ill was only 63 feet above that level ; and that, beyond that spur, the line
II below the level of the monument at several points before reaching the
xxMtook.
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150 INTERNATIONAL ARBITRATIONS.
falling into the St. John it should be made to recede down the
northwest branch of the St. John to a point seven miles in a
straight line from such summit or crest; thence in a straight
line, in a coarse about south 8^ west, to the point where the
parallel of latitude of 46^ 25' north intersects the southwest
branch of the St. John; thence southerly, by that branch, to
its source in the highlands at the Metjarmette Portage; thence
down along the highlands that divide the waters emptying
themsi*lves into the River St. Lawrence from those falling into
the Atlantic Ocean, to the head of Hall's Stream; thence down
the middle of that stream to the intersection of the old line
surveyed and marked by Valentine and Collins, previously to
1774, as the forty-fifth parallel of north latitude, and which
had been known as the line of actual division between the
States of New York and Vermont on one side and the province
of Canada on the other; and from such point of intersection
west, along that dividing line, as previously known and under-
stood, to the Iroquois or St. Lawrence River.
In communicating this line to the Maine
em n ts commissioners for their consideration as the
to Maine.
most advantageous that could be obtained,
Mr. Webster observed that the territory in dispute contained
12,027 square miles, or 7,01)7,280 acres; that by the line pro-
posed there would be assigned to the United States 7,015
square miles, or 4,489,000 acres, and to England 5,012 square
miles, or 3,207,080 acres; that by the award of the King of
tlie Netherlands there were assigned to the United States
7,908 scjuare miles, or 5,001,120 acres, and to England 4,119
square miles, or 2,030,100 acres; that the territory proposed
to be relinquished south of the line of the King of the Nether-
lands was the mountain range from the upper part of the St.
Francis River to the meeting of the two contested lines of
boundary at the Metjarmette Portage, in the highlands, near
the source of the St. John ; that this mountain tract contained
893 S(iuare miles, or 571,520 acres; and that of the general
division of the territory it might be said that, while the por-
tion remaining to the United States was in quantity seven-
twelfths, in value it was at least four-fifths of the whole.
On the other hand, said Mr. Webster, if this
''^'^^Joh^^ ^^® line should he agreed to on the part of the
United States, the British minister would, as
an equivalent, stipulate, first, for the use of the St John for
the conveyance of the timber growing on any of its branches
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THE NORTHEABTEBN BOUNDARY. 151
to tide water ou tbe same terms as British timber, and for the
surrender to the United States of Booses Point and the lauds
formerly supposed to be within the limits of New Hampshire,
Vermont, and iN'ew York, but really lying to the north of the
true forty-fifth parallel. Perhaps, also, the disputed boundary
in Lake Superior might be so adjusted as to leave a contested
island in the possession of the United States. These territo-
rial cessions would inure partly to the benefit of the States
of New Hampshire, Vermont, and New York, bnt principally of
the United States. The consideration however on the part of
England for making them would be the miinner agreed on for
adjusting the eastern boundary. The price of them would
therefore in fairness belong to the two States interested in
that boundary. Under the infiuence of these considerations,
Mr. Webster said he was authorized to say that, if the com-
missioners of Maine and Massachusetts would
Componiatlon of aggent to the line proposed, the United States
ttT^ "^ would undertake to pay to those States the
sum of $250,000, to be divided between them
in equal moieties, and also to undertake the settlement and
payment of the expenses incurred by them in maintaining
the civil posse and in prosecuting a survey which they had
found it necessary to make.*
On these terms, with the addition of $50,000
Signature of Treaty, to the compensation offered to Maine and Mas-
sachusetts, a settlement was finally effected
with the assent of the commissioners of those States.* The
treaty was signed on the 9th of August.
By its first article, the northeastern boundary is defined in
the manner which has been described.
By the third article it is provided that the
^^^^^ ^® navigation of the St. John, where that river
is declared to be the boundary, shall be free
and ox)en to both parties; that "all the produce of the forest,
in logs, lumber, timber, boards, staves, or shingles, or of agri-
culture, not being manufactured, grown on any of those parts
of the State of Maine watered by the river St. John, or by its
tributaries, of which fact reasonable evidence shall, if required,
be produced, shall have free access into and through the said
river and its tributaries, having their source within the State
^ Mr. Webster to the Maine commisfliouers, July 15, 1842. (Webster's
Works, VI. 276.)
« H. Ex. Doc. 2, 27 Cong. 3 sess. 31.
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152 INTERNATIONAL ARBITRATIONS.
of Maine, to and from the seaport at the mouth of the said
river St. John's and to and around the falls of the said river,
either by boats, rafts, or other conveyance; that when within
the province of New Brunswick, the said produce shall be
dealt with as if it were the produce of the said province; that,
in like manner, the inhabitants of the territory of the upper
St. John, determined by this treaty to belong to Her Britannic
Majesty, shall have free access to and through the river, for
their produce, in those parts where the said river runs wholly
through the State of Maine; Provided, always, that this agree-
ment shall give no right to either party to interfere with any
regulations not inconsistent with the terms of this treaty which
the governments, respectively, of Maine or of New Brunswick
may make respecting the navigation of the said river, where
both banks thereof shall belong to the same party.'"
By the fourth article provision was made for the confirmation
of grants of land previously made by either party in territory
which by the treaty falls within the dominion of the other, as
well as for the confirmation of all equitable possessory claims,
arising from the possession and improvement of any lot or
parcel of land by the person actually in possession, or by those
under whom he claimed, for more than six years before the
date of the treaty.
• On May 16, 1844, Mr. Calhoun, who was then Secretary of State,
instructed Mr. Everett to bring to the attention of Her Majesty's gov-
ernment the fact that the legislature of New Brnnswick had imposed an
export duty of a shilling a ton on all timber shipped from any port in the
province, the authorities of Maine contending that the duty contravened
the provision of Article III. of the treaty of 1842 as to " free access"
to the port at the month of the St. John for Maine lumber and prod-
uce. Lord Aberdeen on the 9th of December replied that it was no viola-
tion of the treaty, as American and Canadian articles were treated alike,
the treaty providing that Maine lumber and produce should, "when
within the provinceof New Brunswick, be dealt with asif itwc^ethe]lrod-
uco of the said province.'' Great Britain had, said Lord Aberdeen, given
a liberal construction to this article by allowing the ])roduce of Maine,
when once brought within the province of New Brunswick, to be exported
thence, and import>ed into England and the British Possessions, on pay-
ment of the same duties as the produce of the province itself. (Br, and
For. State Tapers, LI. 934,) By article XXXI. of the treaty of May 8, 1871,
Great Britain engaged "to urge upon the Parliament of the Dominion of
Canada and the Legislature of New Brunswick, that no export duty, or
other duty, shall be levied on lumber or timber of any kind cut on that
portion of American territory in the State of Maine watered by the river
St. John and its tributaries, and floated down that river to the sea, when
the same is shipped to the United States from the province of New Bruns-
wick."
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THE NORTHEASTERN BOUNDARY. 153
By the fifth article provision was made for the distribution of
the ^^ disputed territory fund," which consisted of moneys
received by the authorities of New Brunswick from charges for
the cutting of timber in the disputed territory, with a view to
prevent depredations on the forests, and the proceeds of which
it was agreed should subsequently be paid over to the parties
interested, in the pro|X>rtions to be determined by the final set.
tlement of the boundary. It was stipulated that a correct
account of all receipts and payments of this fund should be
delivered to the United States, and that the proportion of the
amount due thereon to Maine and Massachusetts should be
paid to the United States. Of this fund the United States
agreed to pay over to those States their respective portions, and
further to satisfy their claims for expenses incurred by them, in
protecting the disputed territory and making a survey thereof
in 1838. Beyond this the United States agreed " with the States
of Maine and Massachusetts to pay them the further sum of
three hundred thousand dollars, in equal moieties, on account of
their assent to the line of boundary described in this treaty, and
in consideration of the conditions and equivalents received
therefor from the Government of Her Britannic Majesty." This
last stipulation Lord Ashburton was at first disinclined to
admit into the treaty, since it was in fact an agreement between
the United States and the States of Maine and Massachusetts.
Mr. Webster however convinced him of the propriety of retain-
ing it, at the same timeexpressly declaring that no responsibility
on account of it could be incurred by the British Government.*
By the sixth article of the treaty provision was made for the
joint establishment by two commissioners, one to be appointed
by each government, of the boundary described in the first
article.*
On the 11th of August the treaty was com-
CritieUmof Twatyin municated by President Tyler to the Senate,^
United StfttM and « • ^ . •■ . »
Great B tain. where its provisions, not only m respect of
the boundary but of the slave trade and the
> Webster's Works, VI. 289.
"The correspondence between Mr. Webster and Lord Ashbnrton leading
np to the conclusion of the treaty may be found in Webster's Works, VI.
270; Br. and For. State Papers, XXX. 136 ; H. Ex. Doc. 2. 27 (^ong. 3 sess. 31.
''Webster's Works, VI. 347. As to President Tyler's helpful attitude
and iuHuence in the negotiation, see Cnrtis's Life of Webster, II. 105; Mr.
Webster to President Tyler, August 24, 1842, Webster's Private Corre-
spondence, II. 146.
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154 INTERNATIONAL ARBITRATIONS.
extradition of criminals, were severely criticised. But, in
spite of this opposition, the Senate on the 20th of August gave
its advice and consent to the exchange of the ratifications by a
vote of 39 to 9J In England the treaty was assailed as the
"Ashburton capitulation."^ Lord Palmerston even went so
far as to make the fact that Ashburton had an American
wife^ a ground of attack on the negotiations.*
Nevertheless, the treaty wa« duly carried
Execution of the j^to effect. On the 28th of June 1847 Col. J.
Provudons of the B^^j^^jall Estcourt and Mr. Albert Smith, re-
Treaty. . i -■ t^ . . , i .
spectively the British and American commis-
sioners to run the line described in the first article of the
treaty, signed at Washington their final report, at the conclu-
sion of which they say ^< that the most perfect harmony has
subsisted between the two commissioners from first to last, and
that no differences have arisen between the undersigned in the
execution of the duties entrusted to them.''*
Any history of the settlement of the north-
The *< Bed Line" ^1.1 ■.. ^ i-. ^ •
j^ eastern boundary dispute would be incom-
plete which omitted to mention the question
that arose as to maps. As has been seen, the map used by the
negotiators of 1782-83 was Mitchell's,® but no copy with the
lines marked on it was annexed to the treaty. When the con-
clusion of the provisional articles of peace became known.
Count Vergennes, the French minister for foreign affairs, sent
to Franklin a copy of a map, with the request that he would
mark the boundaries of the United States upon it. By whom
the map was made does not appear, nor whether the maker
> Webster's Private Correspondence, II. 146. After his return to the
Senate, Mr. Webster, on April 6 and 7, 1846, made an elaborate defense of
the treaty. (Webster's Works, V. 78. )
'^ Lord Ashburton to Mr. Webster, January 2, 1843, Webster's Private Cor-
respondence, II. 162.
3 Lord Ashburton married a Miss Bingham, of Philadelphia.
4 Sanders's Life of Lord Palmerston, 91; Francis's Opinions and Policy
of Lord Palmerston, 443; Lord Palmerston on the Treaty of Washingtoti
(a collection of articles published in the London Morning Chronicle ironi
Sept. 19, to Oct. 3, 1842, the authorship of which was popularly ascribed
to Lord Palmerston). See Bulwer's Life of Lord Palmerston, III. 61, 113,
118. See, also, as to the reception of the treaty in England, Curtis's Life
of Webster, II. 147, 150-152, 155-162.
6 Br. and For. State Papers, LVII. 823, 832; XXX I IL 763-806; Curtis's Life
of Webster, 11. 204-205.
« Wharton's Dip. Cor. Am. Rev. VI. 131, 133.
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THE NORTHEASTERN BOUNDARY. 155
was of English, French, or other nationality. On the 6tli of
December 1782 Franklin returned the map after having, as
he said, marked the limits of the United States *' with a strong
red line." ' Early in 1842 Jared Sparks, while pursuing his
researches among the i)apers relating to the American Revo-
lution in the archives of the French department of foreign
alfairs, discovered Franklin's letter to Vergennes. Imme-
diately instituting a search, he found among the 60,000 maps
in the archives a small map of North America by D'Anville
<lated 1746, with a red line upon it apparently drawn with a
hair pencil or a pen with a blunt point, and apparently intended
to indicate the boundaries of the United States.^ Besides
this line there was nothing whatever to identify the map with
the map marked by Franklin. In reality, it made the north-
eastern boundary run even below the line claimed by Great
Britain westward from Mars Hill.' Sparks however at once
sent a copy of the map to Mr. Webster, who, after inspecting
it, instructed Mr. Everett to " forbear to press the search after
maps in England or elsewhere."* Mr. Webster retained the
copy in his possession, but exhibited it only to the Maine
commissioners and later to the Senate. That it bore any rela-
tion to the negotiations of 1782 and 1783 is more than doubt-
ful.'* This was strongly intimated by Benton in the debates on
the treaty.^ But when, through the publication of the debates
in the Senate, the use made by Mr. Webster of the map became
known he was vigorously assailed for not having exhibited it
to Lord Ashburton, whom he was charged with having over-
reached/ Mr. Webster very appropriately replied that he did
not think it a very urgent duty on his part to go to Lord Ash-
burton and say that a doubtful bit of evidence had been found
in Paris, out of which he might perhaps make something to
the prejudice of the United States, or from which he might set
up higher claims for himself, or obscure the whole matter still
further.^ But it must have been known, at least to some of
» Wharton'8 Dip. Cor. Am. Rev. VI. 120.
2 Sparks, North American Review (1843), LVI. 470-471.
3 North American Review (1843), LVI. 468.
^Curtis's Life of Webster, IL 103.
^ Winsor's Narrative and Critical History of America, VII. 180, et seq.
« Benton's Thirty Years' View, IL 422.
' Curtis's Life of Webster. IL 132, 134, 149, 154, 155, 159-162, 167.
» Proceedings of the New York Historical Society, April 15, 1843, p. 67;
Webster's Works, U. 145.
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156 INTERNATIONAL ARBITRATIONS.
Mr. Webster's and Lord Ashburton's detractors in England,
that there then existed in the foreign office, to which it had
been removed from the British Museum, ^ tlie veritable copy of
Mitchell's map used in the negotiations of 1782 with Oswald's
line, and sAao the line finally agreed on marked upon it. This
map was exhibited by Lord Aberdeen to Mr. Everett at the
foreign office in March 1843.* It was subsequently restored to
the British Mu eum, where it is now preserved.^ A copy of
Mitchell's map, with Oswald's tirst li ne marked upon it, was found
in 18^3 among the papers of Mr. Jay.^ This line runs along the
St. John from its mouth and follows the north branch to the
head of Lake Medousa, where it turns westward, and, on its
course to the head of Connecticut River, skirts the sources of
the streams that empty themselves into the River St. Lawrence.
It has been seen that Egbert Benson, in his
Map ufled by Amer- report under Article V. of the treaty of 1794,
*^ ,1?]?*""*"^" said that the commissioners under that article
en in 178£.
had before them the copy of Mitchell's map
used by the negotiators of the treaty of peace, with the lines
of the boundary marked upon it.* This map, he said, was
obtained from the Department of State. It probably was the
one referred to by a writer in 1820, who said : " We have our-
selves seen the very copy of the map which was used at the
conference at Paris, with the lines in pencil yet hardly obliter-
' Beiiton'8 Thirty Years' View, 11.422.
^Mr. Kverett, in a dispatch of March 31, 1843, describes the map thas:
"It is a copy of Mitchell in fine preservation. The boundaries between
the l^ritish and French Possessions, * as tixed by the treaty of Utretch/
are marked upon it in a very faU distinct line, at least a tenth of an inch
broad, and those words written in several places. In like manner the line
giving our boundary as we have always claimed it, that is, carrying the
northwestern angle of Nova Scotia far to the north of the St. .Johns, is
drawn very carefully in a bold red line, full a tenth of an inch broad ; and
in four different places along the line distinctly written 'the boundary
described by Mr Oswald.' What is very noticeable is, that a line narrower,
but drawn with care with an instrument, from the lower end of Lake
Nipissing to the source of the Mississippi, as far as the map permits such
a line to rnu, had ou'^e been drawn on the map, and has since been par-
tially erased, though still distinctly visible." (Bentou^s Thirty Years'
View, 11.671.)
»Fitzmaurice's Life of Shelbiirne, III. 205, 324, note.
^Proceedings of the New York Historical Society, April 18, 1843, with a
"Memoir on the Northeastern Boundary,'* by Mr. Gallatin, and aspeech by
Mr. Webster.
6 Supra, pp. 3£M0.
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THE NORTHEASTERN BOUNDARY. 157
ated." ^ The responses elicited by inquiries addressed to the
Department of State some years ago by Mr. Justin Winsor,'
and lately repeated by myself, tend to show that the map has
been lost. It seems to have disappeared at some time after
1828. Early in November in that year Mr. Gallatin, who was
then engaged in preparing the American statement for sub-
mission to the King of the Netherlands, visited the Depart-
ment of State, and one of his first acts on his arrival was to
make inquiry for the map said to have been offered in evidence
in 1798. The chief clerk, Mr. Brent, immediately produced a
copy of Mitchell's map as the identical map in question.
*' There had been traced on it," says Mr. Gallatin, " originally
with a pencil and over it with a pen, the boundary of the
United States in conformity with their claim.'' It was, how-
ever, decided not to produce it before the arbitrator. Though
Mr. Brent was convinced from tradition, and though there
could under all the circumstances be little doubt that it was
the map laid before the commissioners in 1798, there was no
indorsement or certificate on it to show by whom it was depos
ited in the Department of State, nor could any letter annonn
cing its transmission be found; and it was thought to be
improper as well as impolitic to attempt to support the claim
( f the United States by equivocal or disputable evidence.
There was no knowledge or recollection in the Department of
the map sent by Franklin to Jefferson in April 1790.^
After the settlement of the northeastern
Boimdazy between boundary question, steps were taken by the
^AdA uid Hew Bj.i|.|g|j Government to bring to a close the
long-pending dispute as to boundaries between
the provinces of Canada and New Brunswick, the political
successors in that quarter of the ancient provinces of Quebe<;
and Nova Scotia. In this dispute the two British provinces
respectively took the positions of Great Britain and the United
States on the northeastern boundary question, Canada claim-
ing a line drawn northeastwardly from Mars Hill, while New
Brunswick claimed substantially the same line as that which
had been contended for by the United States; and they main-
tained their respective pretensions with as much pertinacity as
the two national governments had done. So "opposite" were
> Samuel L. Knapp, Boston Monthly Magazine (1826), 573.
'Narrative and Critical History of America, VII. 181.
* Proceedings of the New York Historical Society April 15, 1843, pp. 48-49.
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158 INTERNATIONAL ARBITRATIONS.
their "views both of principles and of fact,'^ that the home
government, deeming the prospect of an adjustment in any
other manner "entirely hopeless," determined effectually to
intervene; and for that i)urpo8e appointed in 1846 a commis-
sion composed of Captains Pipon and Henderson, of the royal
engineers, and Mr. Johnstone, attorney-general of Nova Scolia,
to report on the question whether there was any line that
could be drawn which would satisfy "the strict legal claims"
of both provinces, and, if no such line could be discovered, to
report "how a line could be drawn which would combine the
greatest amount of practical convenience to both provinces
with the least amount of practical inconvenience to either;
adverting at the same time to such interests (if there be any
such) as the Empire at large may have in the adjustment of
this question."* In 1847 Captain Pipon, who died in the pre-
ceding year, was succeeded by Major Robinson, also of the
royal engineers. During the summers of 1843 and 1847 topo-
graphical surveys were made by the engineer officers of the
territory in dispute. On July 20, 1848, the three commission-
ers, Messrs. Robinson, Henderson, and Johnstone, made their
report, which is a clear, concise, able statement of the ques-
tion to which it relates.2 Referring to the Quebec proclamation
of October 7, 1763, the Quebec act of 1774, and the commis-
sions of the governors of Nova Scotia and New Brunswick, as
establishing and defining the boundary in dispute, they found
(1) that Canada should be bounded on the south "by the north
coast of the Bay of Chaleurs as far as its western extremity,"
and from such western extremity by a line "along certain high-
lands to the forty- fifth degree of north latitude;" (2) that the
"highlands" in question should be those that were described
in the proclamation of 1763 as "the highlands which divide
the rivers that empty themselves into the River 9t. Lawrence
from those which fall into the sea;"^ and (3) that such high-
I Mr. Gladstone, colonial seeretary, to Earl Cathcart. governor-general
of Canada, Jnly 2, 1846, Blue Book, '^ Canada and New Brunswick Bound-
ary," July 11, 1851, p. 81.
' Blue Book, ** Canada and New Brunswick Boundary," 86.
3 In reply to an intimation on the part of Canada that the word '^sea^'
in the proclamation of 1763 might be read ''Atlantic Ocean,'' the com-
missioners observed that the word ''sea" was "alike appropriate through-
out the whole course of the boundary," since it comprehended the
Atlantic Ocean, the Bay of Fundy, the Gulf of St. Lawrence, and the Bay
of Chaleurs, while the term "Atlantic Ocean" would apply only to "a
part of the boundary."
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THE NORTHEASTERN BOUNDARY. 159
lands existed and were those claimed by New Brunswick. The
commissioners therefore reported that a line could be drawn
which would satisfy the strict legal claims of each province.
But they further reported (1) that, westward of the due-north
line from the source of the St. Croix, there lay a tract of coun-
try, between the highlands and the boundary of the United
States under the treaty of 1842, "which in 1763 formed part
of the ancient territory of Sagadahock," and *' which, accord-
ing to the strict legal rights of the provinces, belongs to
neither;" (2) that the line of boundary demanded by the strict
legal rights of the provinces was at variance with the actual
I)Ossession of both, and with their mutual advantage and con-
venience; (3) that each i)rovince had exercised jurisdiction
and extended its settlements for a considerable distance along
the River Eestigouche, which had thus practically become to
that extent their boundary; (4) that, as an attempt to alter
this practical and subsisting division could not fail to be inju-
rious, it would be proper that a large part of the territory
north of the Restigouche, though strictly belonging to N*ew
Brunswick, should be confirmed to Canada; (5) that a consid-
erable portion of the territory west of the due-north line, and
belonging to neither province, might be beneficially assigned
to New Brunswick, since it was chiefly settled under the
authority of that province, was connected with it by natural
communications, and had actually been in its possession and un-
der its jurisdiction. Under their instructions to consider ques
tions of convenience, the commissioners therefore recommended
"That New Brunswick should be bounded on the west by the
boundary of the United States, as traced by the Commissioners
of Boundary under the Treaty of Washington, dated August
1842, from the source of the St. Croix to the outlet of the Po-
henagamook, thence northeasterly, by prolonging the straight
line which has been laid down on the ground as the boundary
of the United States, between tbe Iron Monument at the north-
west branch of the River St. John, and the Iron Monument at
the said outlet of Lake Pohenagamook, until the line so pro-
longed shall reach the parallel of 47^ 50' of north latitude,
thence by a line due east to that branch of the Restigouche
River called the Kedgewick or Grande Fourche, then along
the centre of its stream to the Restigouche River, then down
the centre of the stream of the Restigouche River to its mouth
in the Bay of Chaleurs, and then through the middle of that
bay to the Gulf of St. Lawrence, giving to New Brunswick
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160 INTERNATIONAL ARBITRATIONS.
the islands in the said Elvers Kedgewick and Kestigouche to
its mouth at Dalhousie." In explanation of this recommenda-
tion the commissioners stated that the territory west of the
due-north line, and belonging strictly to neither province,
comprised 4,400 square miles, of which the proposed boundary
gave 2,300 to New Brunswick and 2,100 to Canada, while of
the territory north of the Kestigouche strictly belonging to
New Brunswick 2,660 square miles were assigned to Canada.
The fiefs of Temiscouata and Madawaska, though strenuously
contended for by Canada, fell principally to New Brunswick.
The commissioners stated that the inhabitants of these seign-
iories were "few, not exceeding twenty families of poor, humble
settlers.^'
The executive council of New Brunswick
interproniuttai ^^y^g^^ ^]^^f^ ^^^^ recommendation of the com-
ArDitmtion. , . i , . ,
missioners should be "received as an equitable
settlement of the question so long pending;'' but, as the execu-
tive council of Canada found themselves " unable to recognize"
its "justice or equity," the British Government suggested that
the matter be referred to arbitration. This suggestion was
accepted, and it was agreed that the arbitration should be held
in London. As arbitrators New Brunswick and Canada respec-
tively selected Dr. Travers Twiss and Thomas Falconer, esq.,
and these two chose as third arbitrator Judge Stephen Lush-
ington, of the admiralty court. On the 17th of April 1851
Messrs. Lushington and Twiss, Mr. Falconer dissenting, ren-
dered an award, which was duly carried into effect.' By this
award New Brunswick is bounded on the west by the bound-
ary of the United States as traced under the treaty of 1842,
"from the source of the St. Croix to a i>oint near the outlet of
Lake Pech-la-wee-kaa-co-nies, or Lake Beau." From this i>oint
the province is bounded by a straight line to a point a mile
south of the southernmost point of Long Lake; thence by a
straight line to the southernmost point of the fiefs Madawaska.
and Temiscouata, and along the southeastern boundary of
these fiefs to their southeast angle; thence by a meridional
line northward till it meets a line running east and west, and
tangent to the height of land dividing the waters flowing into
the Biver Eimouski from those tributary to the St. John;
thence along this tangent line eastward till it meets another
» Br. and For. State Papers, XL. 850; XLIV. 685.
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THE NORTHEASTERN BOUNDARY. 161
meridional line tangent to the height of land dividing waters
flowing into the River Rimouski from those flowing into the
Restigouche River, thence along this meridional line to the
forty eighth parallel of latitude, along that parallel of latitude
to the Mistouche River, and down the center of the stream of
that river to the Restigouche; thence down the center of the
stream of the Restigouche to its mouth in the Bay of Chaleurs,
and thence along the middle of that bay to the Gulf of St.
Lawrence. By an act of Parliament of August 10, 1857, it is
explained that the "River Mistouche'' in the award shall be
taken to be the stream which crosses the forty-eighth parallel
of latitude and from thence flows into the Restigouche, and
which is otherwise called the "Patapedia."*
The line thus established is substantially the same as that
which was recommended by the royal commissioners in 1848,
except that it gives the fiefs of Temiscouata and Madawaska
to Canada. It was '< founded," said Judge Lushington, in a
statement of the grounds of the award, "as far as possible
upon the principle of possession, a principle laid down by Lord
Hardwicke in the Baltimore case as the true principle to govern
all questions of disputed boundary.''
1 Br. and For. State Papers, XLVII. 523. See, for the joint report of
Commissioners Sniiili and Estcourt on the Northeastern Boondary, Rich-
ardson's Messages and Papers of the Presidents, IV. 170.
5627 11
Digitized by VjOOQ IC
CHAPTER Y.
BOUNDARY THROUGH THE RIVER ST. LAWRENCE
AND LAKES ONTARIO, ERIE, AND HURON: COM-
MISSION UNDER ARTICLE VL OF THE TREATY
OF GHENT.
Having traced tbe settlement of the eastern
Course of the Bound. ^^^ northern boundary of the United States
from the Bay of Fundy to "the point where
the forty-fifth degree of north latitude strikes the river
Iroquois or Cataraquy," we now proceed to extend the line
from that point westward. By the treaty of 1783 the bound-
ary from the point in question to Lake Superior is declared to
be "along the middle of said river (Iroquois or Cataraquy)
into Lake Ontario, through the middle of said lake until it
strikes the communication by water between that lake and
Lake Erie, thence along the middle of said communication
into Lake Erie, through the middle of said lake until it arrives
at the water communication into Lake Huron, thence through
the middle of said Lake to the water communication between
that lake and Lake Superior."
By the sixth article of the Treaty of Ghent
^^. ' it was recited that "doubts have arisen what
was the middle of the said river, lakes and
water communications, and whether certain islands lying in
the same were within the dominions of His Britannic Majesty
or of the United States j'' and in order that these doubts might
be finally decided, it was provided that they should be referred
to two commissioners, to be appointed, sworn, and authorized to
act, except as otherwise specified, in the same manner as the
commissioners under Article V.^ It was further provided that
the commissioners should meet in the first instance at Albany,
in the State of New York, and should have power to adjourn
* Supra, p. 70.
162
Digitized by LjOOQIC
BIVEB AND LAKE BOUNDARY. 163
to SQcli other place or places as tbey should think fit; that
they should, "by a report or declaration, under their hands
and seals, designate the boundary through the said river,
lakes and water communications, and decide to which of the
two contracting parties the several islands lying within the
said rivers, lakes and water communications, do respectively
belong, in conformity with the true intent of tbe said treaty
of one thousand seven hundred and eighty-three,'^ which des-
ignation and decision tbe parties agreed to consider as final
and conclusive; and that, in the event of the two commis-
sioners difi*ering, or both or either of them refusing, declining,
or willfully omitting to act, such reports, declarations, or state-
ments should be made by them, or either of them, and such
reference to a friendly sovereign or state should take place, as
were prescribed in the fourth article of the treaty. Various
matters of procedure were regulated by the eighth article.
Under the sixth article President Madison
*™i^iiflr "*"***" appointed as commissioner on the part of the
United States Peter B. Porter, of Niagara
County, New York.^ His commission, issued by and with the
advice and consent of the Senate, bore date January 16, 1816.
Ilis oath of oflSce was taken before Smith Thompson, chief
justice of New York, whose official character was certified by
the governor of the State.
On the part of Great Britain George III.
' *«iiiMr""** appointed as commissioner John Ogilvy, of
Montreal. His commission bore date June 30,
1816. His oath of office was taken at Quebec, before Jonathan
Sewell, chief justice of the province of Lower Canada.
The conmiissioners held their first meeting
Rnt Meeting of ^^ j^n^^j^j ^n the 18th of November 1816, and
lawti iQi im (mien.
as the board had not been organized they
confined themselves to the arrangement of preliminary mat-
ters.^ Besides presenting their credentials and oaths of office,
they adopted resolutions as to the employment of surveyors,
boatmen, and other persons necessary to be employed in the
**' Peter Bnel Porter was the founder of the well-known family who
owned bo much of the land about Niagara Falls. He was a native of Con-
necticut, was lor two terms a member of Congress, and served with some
credit in the war of 1812. He was active in promoting the Erie Canal,
and died in 1844. ' Rives's Correspondence of Thomas Barclay, 357.)
''Except where otherwiHe indicated, this narrative is based on the MS.
Joarnal of the commission in the Department of State.
Digitized by LjOOQIC
164 INTERNATIONAL ARBITRATIONS.
determination of the boundary. It was also resolved that
each commissioner should name, with the approbation of the
other, a person to serve either as secretary or as assistant sec-
retary, and that it should be determined by lot in which
capacity the two persons so named should respectively serve.
In this arrangement the commissioners were influenced by the
belief that it would greatly conduce to the expedition as well
as the accuracy of their operations, and they agreed to recom-
mend to their respective governments that both persons should
receive the same pay and emoluments. In order to prevent
unnecessary delay it was resolved that the next meeting should
be on the spot where active duty was to commence, and the
commissioners accordingly adjourned to meet at St. Begis on
the 10th of the following May.
The commissioners met at St. Eegis on the
Beiection^f^Becreta- ^^^ ^^ ^^^ jg^^ ^^ Oglivy proposed Ste-
phen Sewell, of Montreal, for secretary or as-
sistant secretary, as should be determined by lot, and Mr.
Porter in like manner proposed Maj. Donald Fraser. The lot
resulted in the appointment of Mr. Sewell as secretary and of
Mr. Fraser as assistant secretary. Each was allowed an annual
salary of $2,200. On the 26th of May they presented their
oaths of office, taken before a Canadian justice of the peace.
Oaths in a form prescribed by the commissioners were in like
manner taken by the surveyors and assistant surveyors.
At the meeting on the 26th of May Samuel
American Agent Hawkins appeared and presented a commis-
sion issued by the President of the United
States, by and with the advice and consent of the Senate,
appointing him as agent on the part of the United States.
At a meeting held at Point Amity on the
Beginning of ^e gg^h of May it was resolved that the boanl
Line determined.
would proceed to ascertain the i>oint at which
the forty-fifth parallel of north latitude, continued westward
from the Connecticut River, strikes the River Iroquois or Gata-
raquy. As this was a point in common under Articles V. and
VI., it being the placQ where the lines to be run under the two
articles connected, the commissioners under Article VL, at
a meeting at Point Peace, June 3, 1817, directed their secre-
tary to address a letter to the commissioners under Article V.,
proposing a meeting of the two boards at Bt. Regis for the
purpose of determining the point in question by joint action.
On the 8th of August the commissioners under Article YL
Digitized by LjOOQIC
BIVEE AND LAKE BOUNDABT. 165
received a letter, dated the 14th of Jaly, from Colonel Barclay,
oue of the commissioners under Article V., indicating accept-
ance of the proposal.' Owing to the delay in the arrival of
the British astronomers, the joint meeting of the boards did
not take place till Jane 1818. The determination of the point
nimle by Andrew Ellicott, the American astronomer, in the pre-
ceiling year was found to be correct.
At a meeting of the commissioners under
^*" Article VI. at Hamilton, Ontario, on June 1,
1818, John Hale appeared and presented a commission as
British agent.
From 1819 to 1821 various changes occurre<l
Chafes m e .^ ^j^^ constitution of the board. In June
1819 Stephen Sewell resigned the position of
secretary and was succeeded in it by Donald Fraser, whose
place as assistant secretary was filled in the following June
by the apx)ointment of Dr. John Biggsby.
On the 28th of September 1819 Mr. Oglivy, the Britisli
commissioner, died at Amherstburgh, near Detroit, of a fever
coiitracted among the St. Clair iiats. He was succeeded by
Anthony Barclay, of Annapolis, Nova Scotia, a son of Thomas
Barclay, British commissioner under Article V. Anthony
Barclay appeared and presented his credentials and oath of
office at a meeting of the board on June 3, 1820, at Grosse Isle.
At a meeting at Black Bock on May 7, 1821, Joseph Dela-
fiehl appeared and presented a commission as agent of the
United States, in place of Samuel Hawkins.
On the 12th of November 1821, at a meet-
^^^uTl^^^ ing of the board in the city of New York, the
surveyors stated that the maps of the survey
along the whole line were ready for inspection. The agents
respectively presented claims to the islands lying in the mouth
of the Detroit River, the American agent to Bois Blanc,
Sugar, and Story islands, and the British agent to the two
latter. After holding several meetings in New York, the com-
missioners adjourned to Philadelphia, where they met on the
29th of January 1822. On the 5th of February Mr. Porter
presented a statement of his views, and Mr. Barclay a reply;
and they also prepared a Joint statement, setting forth the
differences between them. They then adjourned to meet on the
^Rives's CorreanoDdence of Thomas Harclay, 385.
Digitized by LjOOQIC
166 INTERNATIONAL ARBITRATIONS.
3d of June at Utica, N. Y. On June 18, 1832, they reached an
agreement. They held their last meeting under Article VI. on
the 22d of June.
.In reaching their decision the commission-
«P «■ 0 - ^j.g proceeded without any fixed rule, except
that the line should invariably be a water line,
and therefore should not divide any island. But difficulties
naturally arose not only out of questions touching the assign-
ments of islands, but also out of questions touching the water
communications and their navigation. At the sessions of the
commissioners in the city of New York in the autumn of 1821
it was proposed to them that they should make with their
final award, a joint declaration to the efiect that they had
acted on the principle that the navigation of all the lakes,
rivers, and water communications through which, by the treaty
of 1783, the boundary was to pass should continue open and
free to the citizens and subjects of the two powers, unaffected
by the course of the line established by the award, it being
understood that the proposition should receive the assent of
the two governments before the declaration was made. It
was believed that such a declaration would not only facilitate
the conclusion of an award, but would also tend to prevent
future difficulties as to the right of navigation. It seems,
however, that while the proposition was acceded to by the
President of the United States, the British minister at Wash-
ington, to whom it was presented, declined to sanction it on
the part of his government, on the ground that such a declara-
tion by the commissioners might serve to cast doubt on what
was a matter of right; and the commissioners were left to
trace the line in accordance with their views of the require-
ments of their commissions.
During their deliberations on the award, Mr. Porter pro-
posed that the commissioners should be governed by certain
rules, but Mr. Barclay declined to give them a "distinct and
positive recognition," on the ground that cases might occur in
the course of the proceedings in which the restrictions imposed
by fixed rules might prove to be inconvenient.^
The award of the commissioners was as fol-
Awara.
lows:
"The undersigned Commissioners, appointed, sworn and au-
thorized, in virtue of the sixth article of the treaty of peace and
» H. Ex. Doc. 451, 25 Cong. 2 «e88. 6-10. Infra^ p. 174.
Digitized by LjOOQIC
RIVEB AND LAKE BOUNDARY. 167
amity between His Britannic Majesty and the United States
of America, conclnded at Ghent, on the twenty-fourth day of
December, in the year of our Lord one thousand eight hundred
an<l fourteen, impartially to examine, and, by a report or dec-
laration, under their hands and seals, to designate ' that por-
tion of the boundary of the United States from the point where
the 45th degree of north latitude strikes the river Iroquois or
Gataraqua, along the middle of said river into Lake Ontario,
through the middle of said lake until it strikes the communica-
tion, by water, between that lake and Lake Erie; thence, along
the middle of said communication, into Lake Erie, through the
middle of said lake, until it arrives at the water communication
into Lake Huron; thence, through the middle of said water
communication, into Lake Huron; thence, through the middle
of said lake, to the water communication between that lake
and Lake Superior;' and to 'decide to which of the two con-
tracting parties the several islands, lying within the said rivers,
lakes and water communications, do respectively belong, in con-
formity with the true intent of the treaty of 1783:' Do decide
and declare, that the following described line, (which is more
clearly indicated on a series of maps accompanying this report,
exhibiting correct surveys and delineations of all the rivers,
lakes, water communications and islands, embraced by the
sixth article of the treaty of Ghent, by a black line shaded on
the British side with red, and on the American side with blue;
and each sheet of which series of maps is identified by a certifi-
cate, subscribed by the Commissioners, and by the two princi-
pal surveyors employed by them,) is the true boundary intended
by the two before mentioned treaties, that is to say :
r^^ '^ «« J "Beginning at a stone monument, erected
Defimtiaa of Bound- ^^ ^^drew Ellicott, Esquire, in the year of our
^^' Lord one thousand eight hundred and seven-
teen, on the south bank, or shore, of the said river Iroquois or
Gataraciua, (now called the St. Lawrence,) which monument
bears south seventy-four degrees and forty-five minutes west,
and is eighteen hundred and forty yards distant from the stone
church in the Indian village of St. Eegis, and indicates the
point at which the forty-fifth parallel of north latitude strikes
the said river; thence, running north thirty-five degrees and
fortv five minutes west, into the river, on a line at right angles
with tlie southern shore, to a x>oint one hundred yards south of
the op])osite island, called Cornwall Island; thence, turning
westerly, and passing around the southern and western sides
of said island, keeping one hundred yards distant therefrom,
and following the curvatures of its shores to a point opposite
to the northwest corner, or angle, of said island; thence to and
along the middle of the main river, until it approaches the
enstern extremity of Barnhart's Island; thence northerly,
along the channel which divides the last-mentioned island from
the Canada shore, keeping one hundred yards distant from the
island, until it approaches Sheik's Island ; thence along the mid-
dle of the strait wMch divides Barnhart's and Shefks island, to
Digitized by V^OOQ IC
168 INTERNATIONAL ARBITRATIONS.
the channel called the Long Sault, which separates the two last
mentioned islands from the Lower Long Sault Island ; thence
westerly (crossing the centre of the last mentioned channel)
until it approaches within one hundred yards of the north shore
of the Lower Saalt Island; thence np the north branch of the
river, keeping to the north of, and near, the Lower Sanlt Island,
and also north of, and near, the Upper Sanlt (sometimes called
Baxter's) Island, and south of the two small ishinds, marked
on the map A and B, to the western extremity of the Upper
Sault, or Baxter's Island; thence passing between the two
islands called the Cats, to the middle of the river above ; thence
along the middle of the river, keeping to the north of the small
islands marked C and D; and north also of Chrystler's Island
and of the small island next above it, marked E, until it ap-
proaches the northeast angle of Goose Neck Island; thence
along the passage which divides the last-mentioned island from
tbe Canada shore, keeping one hundred yards from the island,
to tbe upper end of the same; thence south of, and near, the
two small islands called the Nut Islands; thence north of, and
near, the island marked F, and also of the island calle<l Dry or
Smuggler's Island ; thence passing between the islands marked
G and 11, to the north of the island called Isle au Rapid Plat;
thence along the north side of the last-mentioned island, keep-
ing one hundred yards from the shore to the upper end thereof;
thence along the middle of the river, keeping to the south of,
and near, the islands called Cousson (or Tussin) and Presque
Isle; thence up the river, keeping north of, and near, the sev-
eral Gallop Isles, numbered on the map 1 , 2, 3, 4, 5, 0, 7, 8, 9, and
10, and also of Tick, Tibbet's, and Chimney Islands; and south
of, and near, the Gallop Isles, numbered 11, 12, and 13, and
also of Duck, Drummond, and Sheep Islands; thence along the
middle of the river, passing north of island No. 14, south of 15,
and 16, north of 17, south of 18, 19, 20, 21, 22, 23, 24, 25, and 28;
and north of 2G, and 27; thence along the middle of the river,
north of Gull Island, and of the islands No. 29, 32, 33, 34, 35,
Bluff Island, and No. 39, 44, and 45, and to the south of No. 30,31,
36, Grenadier Island, and No. 37, 38, 40, 41,42, 43, 46, 47, and 48,
until it approaches the east end of Well's Island ; thence to the
north of WelPs Island, and along the strait which divides it
from Rowe's Island, keeping to the north of the small islands
No. 51, 52, 54, 58, 59, and 61, and to the south of the small
islands numbered and marked 49, 50, 53,55,57, 60, and X, until
it approaches the northeast point of Grindstone Island ; thence
to the north of Grindstone Island, and keeping to the north
also of the small islands. No. 63, 65, 67, 6S, 70, 72, 73, 74, 75, 76,
77, and 78, and to the south of No. ()2, 64, 66, 69, and 71, until it
approaches the southern point of Hickory Island; thence pass-
ing to the south of Hickory Island, and of the two small islands
lying near its southern extremity, numbered 79 and 80; thence
to the south of Grand or Long Island, keeping near its south-
ern shore, and passing to the north of Carlton Island, until it
Digitized by LjOOQIC
RIVER AND LAKE BOUNDARY. 169
arrives opposite to the southwestern point of said Grand Island
in Lake Ontario ; thence passing to the north of Grenadier, Fox,
Stony, and the Gallop Islands in Lake Ontario, and to the south
of, and near, the islands called the Ducks, to the middle of the
said lake; thence westerly, along the middle of said lake, to a
point opposite the mouth of the Niagara River; thence to and
up the middle of the said river to the Great Falls ; thence up
the Falls, through the point of the Horse Shoe, keeping to the
west of Iris or Goat Island, and of the group of small islands
at its head, and following the bends of the river so as to enter
the strait between Navy and Grand Islands; thence along tlie
middle of said strait to the head of Navy Island ; thence to the
west and south of, and near to, Grand and Beaver Islands, and
to the west of Strawberry, Squaw, and Bird Islands, to Lake
Erie; thence southerly and westerly, along the middle of Lake
Erie, in a direction to enter the passage immediately south of
Middle Island, being one of the easternmost of the group of
islands lying in the western part of said lake; thence along the
said passage, proceeding to the north of Cunningham's Island,
of the three Bass Islands, and of the Western Sister, and to
the south of the islands called the lien and Chickens, and of
the Eastern and Middle Sisters; thence to the middle of the
mouth of the Detroit River, in a direction to enter the channel
which divides Bois Blanc and Sugar Islands; thence up the
said channel to the west of Bois-Blanc Island, and to the cast
of Sugar, Fox, and Stony Islands, until it approaches Fighting
or Great Turkey Island; thence along the western side, and
near the shore of said last-mentioned island, to the middle of
the river above the same; thence along the middle of said river,
keeping to the southeast of, and near. Hog Island, and to the
northwest of, and near, the island called Isle a la Pache, to
Lake St. Clair; thence through the middle of said lake, in a
direction to enter that mouth or channel of the river St. Clair,
which is usually denominated the Old Ship Channel; thence
along the middle of said channel, between Squirrel Island on
the southeast, and Herson's Island on the northwest, to the
upper end of the last-mentioned island, which is nearly oppo-
site to point Aux Chenes, on the American shore; thence along
the middle of the river St. Clair, keeping to the west of, and
near, the islands called Belle Riviere Isle, and Isle aux Cerfs,
to Lake Huron ; thence through the middle of Lake Huron, in
a direction to enter the strait or passage between Drummond's
Island on the west, and the Little Manitou Island on the east;
thence through the middle of the passage which divides the
two last-mentioned islands; thence turning northerly and west-
erly, around the eastern and northern shores of Drummond's
Island, and proceeding in a direction to enter the passage be-
tween the Island of St. Joseph's and the American shore, passing
to the north of the intermediate islands No. 61, 11, 10, 12, 9, 6, 4,
and 2, and to the south of those numbered 15, 13, 5, and 1 ; thence
up the said last-mentioned passage, keeping near to the island
Digitized by LjOOQIC
170 INTERNATIONAL ARBITRATIONS.
of St. Joseph's, and passing to the north and east of Isle a la
Crosse, and of the small islands numbered 16, 17, 18, 19, and
20, and to the south and west of those numbered 21, 22, and
23, until it strikes a line (drawn on the map with black ink
and shaded on one side of the point of intersection with blue,
and'on the other with red,) passing across the river at the head
of St. Joseph's Island, and at the foot of the Neebish Kapids,
which line denotes the termination of the boundary directed to
be run by the sixth article of the treaty of Ghent.
«. .^ . "And the said Commissioners do further
^^?^ decide and declare, that all the islands lying
in the rivers, lakes and water communications,
between the before-described boundary-line and the adjacent
shores of Upper Canada, do, and each of them does, belong
to His Britaunic Majesty, and that all the islands lying in the
rivers, lakes and water communications, between the said
boundary line and the adjacent shores of the United States, or
their territories, do, and each of them does, belong to the
United States of America, in conformity with the true intent
of the second article of the said treaty of 1783, and of the sixth
article of the treaty of Ghent.
'^ In faith whereof we, the Commissioners aforesaid, have
signed this declaration, and thereunto affixed our seals.
" Done in quadruplicate at Utica, in the State of New York,
in the United States of America, this eighteenth day of June,
in the year of our Lord one thousand eight hundred and twen-
ty-two.
"[SEAL.] "Peter B.Porter.
"[SEAL.] "Anth: Barclay."
In connection with this award it is to be
Free Havigatian of observed that by Article VII. of the Webster-
Ashburton treaty of August 9, 1842, it is
"agreed that the channels in the river St. Lawrence on both
sides of the Long Sault Islands and of Bemhart Island, the
channels in the river Detroit on both sides of the island Bois-
Blanc, and between that island and both the American and
Canadian shores, and all the several channels and passages
between the various islands lying near the junction of the
river St. Clair with the lake of that name, shall be equally free
and open to the ships, vessels, and boats of both parties."
Digitized by LjOOQIC
CHAPTER VI.
BOUNDABY FROM LAKE HURON TO THE MOST
NORTHWESTERN POINT OF THE LAKE OF THE
WOODS: COMMISSION UNDER ARTICLE VII. OF
THE TREATY OF GHENT.
By Article VII. of the Treaty of Ghent it
^^'^'T^V^ ' was agreed that when the commissioners un-
der Article VI., whose proceedings have just
been narrated, should have executed the duties assigned to
them under that article, they should be " authorized upon
their oaths impartially to fix and determine, according to the
true intent of the said treaty of peace of one thousand seven
hundred and eighty-three, that part of the boundary between
the dominions of the two Powers which extends from the water
communication between Lake Huron and Lake Superior, to
the most northwestern point of the Lake of the Woods, to de-
cide to which of the two parties the several islands lying in
the lakes, water communications and rivers, forming the said
boundary, do respectively belong, in conformity with the true
intent of the said treaty of peace of one thousand seven hun-
dred and eighty- three; and to cause such parts of the said
boundary as require it to be surveyed and marked." It was
further agreed that the commissioners should, "by a report
or declaration under their hands and seals, designate the
boundary aforesaid, state their decision on the points thus
referred to them, and particularize the latitude and longitude
of the most northwestern point of the Lake of the Woods, and
of such other parts of the said boundary as they may deem
proper." Such designation and decision the parties agreed to
consider as final and conclusive. In the event of the commis-
sioners diflfering, provision was made for the reference of the
subject to a friendly sovereign or state.
By the treaty, by the commissions and ap-
^^"^^^^ ** pointments under it, and by the legislation
adopted to carry it into eflfect, the proceedings
under Articles VI. and VII. were treated as one connected
171
Digitized by LjOOQIC
172 INTERNATIONAL ARDITKATIONS.
transaction. As soon therefore as Messrs. Porter and Bar-
clay had concluded their proceedings under Article VI., by
their award at Utica on the 18th of June 1822, they issued
instructions to the surveyors as to the work under Article
VII. ; and when they adjourned on the 22d of .Tune it was to
meet again whenever they should he required to do so by either
cx)inmissioner, on information received from the surveyors or
the agents. Ko change was made in the personnel of the com-
mission, except that Richard Williams succeeded John Biggsby
as assistant secretary.
By the instructions given to the surveyors
^"^ they were required, after passing Lake Supe-
rior, to ascertain the position of Long Lake,
or if no lake of that name was to be found, the chain of waters
supposed to be referred to in the treaty by tliat designation;
and if they should discover, as it was said they probably
would, that those waters did not communicate with Lake
Superior, to ascertain what rivers or bodies of water, divided
by a height of land, and emptying, one into Lake Superior
and the other into the Lake of the Woods, approximated most
nearly to the line intended by the treaty.
During the summers of 1822 and 1823 the
surveyors went over the route from the start-
ing point to the Lake of the Woods. Report-
ing the results of their operations at a meeting of the board at
Albany, in February 1824, they were instructed as early as
practicable in the si)ring to complete the surveys yet required
along the water communication from the mouth of Pigeon
River to the most northwestern point of the Lake of the Woods.
The survey of this part of the line was reported to the board
at a meeting at Montreal in October 1824, and there seemed to
be a probability that the estuary at the mouth of Pigeon River
would be agreed on as the Long Lake, and the route known
as the Grand Portage as the line intended by the treaty. But
here the commissioners divided and issued separate instructions
for further surveys, the British commissioner directing the sur-
vey of the Fond du Lac or St. Louis River route to the south
of the Grand Portage and the American commissioner taking
a route to the north of it, based on the avSsumption that Dog
Lake, on the River Kamanistiquia, was the Long Lake of the
treaty.
Digitized by LjOOQIC
LAKE AND LAND LINE. 173
The surveys baving been completed and tbe
^•"•'y" arguments of tbe agents concluded, tbe com-
missioners endeavored to leacb an agreement,
but on two points they were unable to do so. The first diflfer-
euce arose at the beginning of the line in St. Mary's River, the
water communication between Lake Huron and Lake Superior.
In this river there are numerous small islands, but also three
large ones, namely, St. Joseph's, containing 141.9 square miles,
or 90,816 acres; St. George's or Sugar Island, containing 40.5
square miles, or 25,920 acres; and St. Tammany's Island (so
named by the commissioners out of compliment to the United
States, St. Tammany being the Indian saint of New England,
but now commonly called Encampment Island), containing
15.5 square miles, or 10,164 acres. In drawing the line under
Article VI., which terminates at a point in the Neebish Ohan-
nel, near Muddy Lake, at the head of St. Joseph's Island,
the commissioners assigned this island to Great Britain. In
commencing the line under Article VII. they assigned the
Island of St. Tammany without controversy to the United
States; but as to St. George's, or Sugar Island, they were
unable to agree.
By the islands of St. Tammany and St.
^^^^^'^^" George (the latter of which lies north of the
former) and the adjacent main shores, the
water communication at the Neebish Rapids is formed into
three channels, respectively designated as Eastern Neebish,
Middle Neebish, and Western Neebish. Of these the Eastern
Neebish, which passes into Lake George on the eastern or
Canadian side of St. George's Island, is the only one navigable
for ships. The Middle Neebish, while navigable for boats,
is obstructed by shoals and rocks, and the Western Neebish
is navigable only for canoes. Moreover, above the point where
the islands of St. Tammany and St. George form the three
channels in question, the water communication between Lake
Huron and Lake Superior is divided by St. George's Island
into two parts or channels only, one of which, called Lake
George, lies on the eastern or Canadian side and is entered
by the Eastern Neebish, and the other of which lies on the
western or American side and is entered either by the Middle
or the Western Neebish. The former is not only by far the
larger both in superficial extent and in depth, but is the only
one navigable for ships of the larger class, the American being
known as the canoe channel.
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174 INTERNATIONAL ARBITRATIONS.
Mr. Porter, the American commissioner,
BniM of Deoision: claimed tlie Eastern Neebish and Lake George
commiM^*"***" as the boundary, on grounds which may be
briefly explained. In the proceedings under
Article VI. he drew up and informally proposed to his col-
league the following rules:
1. That the boundary from St. Regis to Lake Superior should
invariably be a water line.
2. That where there was but one navigable channel it should
be pursued without reference to its size or its contiguity to one
or the other shore.
3. That where there were two navigable channels the line
should be carried through the one having the greater quantity
of water.
4. That where there were three or more channels the line
should pass along the one nearest to the center, provided a
good navigation should thereby be left to each party.
5. That where there was no navigation the line should be
run only with reference to a fair division and proper location
of the territory.
Mr. Porter admitted that Mr. Barclay, the British commis-
sioner, declined to yield a distinct and positive recognition of
any of these rules, except the first, on the ground that cases
might occur in which, from peculiar interests and localities, a
departure from abstract principles might be desirable, and in
which the restrictions imposed by them might prove to be
inconvenient; yet he claimed that the proceedings under Arti-
cle VI. were in fact governed by the rules proposed by him,
with the exception of some trifling deviations intended to
accomplish the design of the fifth rule — a satisfactory division
of territory.
Applying these rules to the case in question, the first occa-
sioned no disagreement, since it was mutually conceded that
the line was not to cross St. George's Island, but was to pass
through either the eastern or the western channel. But by the
second rule, said Mr. Porter, the case was precisely decided,
and ill accordance with it the eastern or navigable channel must
be taken as the boundary. The third and fourth rules, though
not precisely applicable, yet in principle supported the claim
to that channel. The fit^h also would be better fulfilled by its
adoption; for, as St. Joseph's Island had been given to Great
Britain and St. Tammany's to the United States, the only ap-
proach that could be made to an equal division of the island
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LAKE AND LAND LINE. 175
territory in St. Mary's River would be by giving St. George's
also to the latter country.
Mr. Barclay, admitting that the Eastern
BiUm of Bedslon: j^^eebish was alone navigable for the larger
ComDdfld "*^ class of trading vessels employed in those re-
gions, bnt observing that just above was the
Sault Ste. Marie, by which navigation was interrupted, main-
tained that St. George's Island should be allotted to Great
Britain. The commissioners, in determining the boundary
under Article VI., practically adopted, said Mr. Barclay, two
rules :
1. That islands intersected by a middle line, measured equi-
distant between the main shores, were to be apportioned in
quantity (of extent) as equally as possible between the two
nations, according to the proi)ortions failing on the respective
sides of such equidistant line.
2. That wherever an island was intersexjted by such a middle
line into two unequal parts (which was generally the case when
an island was intersected), the nation on whose side the larger
portion lay was entitled to elect to retain the whole, the nation
on whose side lay the smaller portion being entitled, in the
future appropriation of islands, to credit for the portion so
surrendered; or, if the latter nation so desired, the nation
having the larger portion was i)ermitted to surrender it and
receive an equivalent elsewhere; and the line was to be settled
accordingly.
Mr. Barclay admitted that Mr. Porter in terms declined to
establish these rules, but claimed that <*he afterwards fully
adopted them in practice." There was, said Mr. Barclay, only
one case under Article VI. in which the American commissioner
refused to abide by th^m, and that related to three very small
islands, called Sugar, Fox, and Strong islands, in front of
Amherstburg, in the Detroit River. These islands the British
Government, rather than interrupt the amicable negotiations
for an award, directed its commissioner to surrender, which he
did with a formal written declaration that he " did not thereby
depart from any of the principles which, as His Majesty's com-
missioner, he had asserted and which formed the general prac-
tical basis of the arrangement, so far as the said boundary had
been agreed upon." Besides this case, however, Mr. Barclay
observed that there might have been << one or two other instances
under the sixth article wherein islands which would have been
intersected by an equidistant middle line, so as to throw a
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176 INTERNATIONAL ABBITBATIONS.
large i)ortioii on one side, were yet allotted to the other side,
and where the boundary line was conducted accordingly. This
was done where a party required territory to make up its
amount of intersected islands in which there may previously
have been produced a deficiency, in consequence of the other
party having received a whole island or whole islands by
reason of the greater part thereof happening to be on its side
of the equidistant line."
Thus both the commissioners stood in respect
Relative Pontiim» of ^^ ^^|^g ^^^ ^^^ sskUie iK)sition. Ea<;h had pro-
posed rules which the other refused formally
to adopt; each claimed that the rules which he proposed were
afterward in fact observed by the other; and both were to a
great extent right. Tbe rules proposed by them were not
wholly irreconcilable. While Mr. Porter seemed to assign a
greater importance to the question of navigation than Mr.
Barclay did, yet he admitted that deviations were made from
his own rules for the purpose of securing an equal division of
territory; and in reaching an agreement under Article VI. each
commissioner doubtless secured enough concessions to lead
him to think that his own rules were practically admitted by
the other. What one regarded as an abatement from his own
rules the other regarded as an acknowledgment of his.
Applying his own rules to St. George's
**Bri^^Co^m°*' Island, Mr. Barclay maintained that by both
rionar'BCiaiiiL " ^^ them Great Britain's title was clear. The
greater part of St. Tammany's Island lay on
the American side of the equidistant line, and it was at once
allotted to the United States. The greater part of St. George's
fell on the British side, and should be allotted to Great Britain,
both for that reason and as compensation for the surrendered
portion of St. Tammany's. The award under Article VI. itself
showed, said Mr. Barclay, that the commissioners had carried
the line " through the middle" of the chain of water commu-
nication, altogether disregarding the principle of a channel
forming a boundary. Thus in the River Iroquois the upper
Long Sault Island, the lower Long Sault Island, and Barn-
hart's Island were allotted to the United States because they
lay mostly on the American side of an equidistant line, though
the only navigable channel in descending the river lay between
them and the American main shore. So, in the case of the
islands at the head of Lake St. Clair, the line was conducted
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LAKE AND LAND LINE. 177
through the channel which passed as nearly as possible equi-
distant from the respective main shores, though the channel
used by large vessels was contiguous to the American main
shore. In order however to {ivoid the objection that the ces-
sion of St. George's Island would leave the ship channel
entirely within British territory, Mr. Barclay proposed that if
the American commissioner would consent to establish the
line through the Middle Neebish channel and the Sugar Rapids
and give St. George's Island to Great Britain, he would stip-
ulate that the Eastern l^eebish should remain free for the com-
merce of both nations, provided the American commissioner
would make a similar stipulation as to the channel south of
Barnhart's Island and the two Long Sault islands and the
channel contiguous to the American main shore connecting
the River St. Clair with Lake St. Clair. The fact that the
American commissioner had declined this proposition was,
said Mr. Barclay, an additional reason for giving Great Brit-
ain the power to control the navigation at the St. Mary's
River. In this relation Mr. Barclay observed that Mr. Porter,
in their conferences under Article VI., oflered to declare in
writing that the appropriation of the islands in the Long Sault
was made with the understanding that the several channels
were common to the use of both nations. This suggestion Mr.
Barclay said he declined at the time, on the ground that, as
the channels were free to both governments by the law of
nations, it was jsuj^erfluous for the commissioners to declare
them to be so. Mr. Barclay also contended, on the strength
of Vattel, De Martens, and Grotius, and of the language used
by Mr. King and Lord Hawkesbury in their unratified con-
vention of 1803, that a line equidistant from the main shores
was the true middle intended by the treaties describing the
boundary; and it was, he said, the line which had been
adopted iiot only under Article VI., but also under Article
VII., so far as the commissioners had been able to agree.^
In response to these arguments Mr. Porter,
8t Geoige'B Island: referring first to the islands at the head of
AmericaaCommis- j^^^^ g^ ^^^^ observed that the River St.
I10lll6r 8 dainiB.
Clair discharged itself into the lake of that
name by eight or ten different channels; that the boundary
was there drawn through the navigable channel nearest to the
center of the group of islands, though in such a manner as to
iH. Ex. Doc. 451, 25 Cong. 2 sess.
5627 12
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178 INTERNATIONAL ARBITRATIONS.
give Great Britain probably two-thirds of the insular territory,
and that the line there drawn involved no principle that would
require the cession of St. George's Island to Great Britain.
As to Barnhart's Island and St. George's Island, there was,
said Mr. Porter, but one i)oint of resemblance — that they were
both considerably removed from the center of the rivers in
which they respectively lay, Barnhart's Island lying near the
British shore, and having much the larger quantity and extent
of water on the American side, while in the case of St.
George's Island the situation was reversed. But it would be
found, on an examination of the whole range of the boundary,
that the decision made in respect of Barnhart's Island was an
exception to the rule, which had been followed in nearly all
other cases, to take the larger channel where there were two.
The reason for this exception Mr. Porter explained by saying
that at the head of the River St. Lawrence there was a large
and valuable island called Grand Isle, or Long Island, con-
taining upward of 30,000 acres and nearly in the center of the
river, with equally good navigation on either side; that it lay
abreast of the British town, fortress, and shipyard of Kingston,
and that the British commissioner was desirous of possessing
it both on account of its situation and its valuable timber.
There was, however, great difficulty in finding an equivalent
for it without infringing the rights of navigation in parts of
the river which are entitled to be called navigable waters.
But there was a large island, containing about 18,000 acres, in
the Niagara River, and there were the Sault Islands and Barn-
hart's Island, lying in that part of the St. Lawrence called the
Long Sault, where the current was so rapid and precipitous
that no ship could ent^r it, though boats and rafts of timber
might with some hazard descend it on the American side.
Absolved thus from the question of navigation, the two Sault
islands, Barnhart's Island, and the island in Niagara River were
given to the United States as compensation for Grand Isle.
As to the two rules put forward by the British commis-
sioner, Mr. Porter observed that there was nothing in their
spirit or in their practical results that was essentially incon-
sistent with those acted on by himself, and he contended that
if they were applied St. George's Island would be appropriated
to the United States. Owing to the irregular and awkward
shape of the river where it embraced that island, it was impos-
sible to trace an equidistant line. But there was another
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LAKE AND LAND LINE. 179
middle line ascertainable on strictly scientific principles, which
woald effect a more sensible and practicable division of the
area than a zigzag equidistant line. This was a line from a
point in the center of the river, immediately above where it
branches in order to pass the island, to another point in its
center immediately below where the two branches again unite,
drawn in such a manner as to divide the whole space, by the
shortest and most direct route compatible with the object, into
two equal quantities. Such a line would throw nearly three-
fourths of the island into the United States.
In this relation Mr. Porter observed that there was an evi-
dent omission in the treaty of 1783 and in the Treaty of Ghent
in regard to the boundary through the water communication
between Lake Huron and Lake Superior. They described the
boundary as "passing through Lake Huron to the Avater com-
munication between that lake and Lake Superior; thence" —
leaping over the water communication, as if it were a mathe-
matical point — " through Lake Superior." The commissioners,
treating this omission as a mere inadvertence, had interpreted
the treaty as if the line had been continued on *' through" this
water communication, in the same phraseology as was uni
formly applied to every other water communication — that is to
say, "through the middle." Jn the exercise of the same lati-
tude of interpretation, they had the right to select the place,
within the omitted space or interval, where the lines of the two
articles of the treaty should be divided; and they might with
as much propriety have fixed it at either end, as at any inter-
mediate point. Indeed, the most obvious place for the division
was at the Sault Ste. Marie, where the river is single and nar-
row, and the bisecting line would be short and determinate;
and that point would probably have been selected if the season
had not closed upon the surveyors when they were about 20
miles short of it. Had this or the opposite end of the strait
been taken, all the three large islands would have fallen under
one article; and then, if St. Joseph's Island had first been
appropriated to Great Britain, the argument now used in claim-
ing St. George's for that government would, said Mr. I*orter,
have applied with augmented force in demanding it for the
United States. Though the surveys of St. Tammany's and St.
George's islands were not completed at the time of the closing
of the i)roceeding8 under the sixth article and the allotting of
St. Joseph's Island to Great Britain, he possessed very correct
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180 INTERNATIONAL ARBITRATIONS.
information as to their extent and situation, and could not
doubt that at the proper time they would both be assigned to
the United States.
The second point of difference between the
to Lac 1 PI ^ commissioners related to the boundary from a
point near Isle Eoyale in Lake Superior to the
Chaudiere Falls in Lac la Pluie, which is situated between
Lake Superior and the Lake of the Woods. Mr. Porter claimed
that tlie line should be drawn from the point named, north-
ward of Isle Pat6, to and through the Kamainstiquia River,
Dog Lake, and Dog Eiver, keeping the most continuous chain
of water communication to the Chaudiere Falls; Avbile Mr.
Barclay claimed that the line should run north and west of
Isle Royale, thence southwestwardly to and through Fond
du Lac to the St. Louis River, and thence up that river and
over its grand portage by the most continuous water commu-
nication to the falls in question.
By the treaty of 1783 the boundary is de-
th Lo^^LiJk*^ scribed as passing '^'through Lake Superior
northward of the Isles Royale and Phelipeaux,
to the Long Lake; thence through the middle of said Long
Lake, and the water communication between it and the Lake
of the Woods, to the said Lake of the Woods." The commis-
sioners agreed as to Isle Royale, which they located near the
northwestern coast of Lake Superior, but they were unable to
find any places known as the Isles Philipeaux and the Long
Lake. Mr. Porter however was of opinion that the Isles
Philipeaux were a cluster or rather a succession of small
islands, of which the Isle Pat6 was the most considerable,
extending along the lake coast from northeast to southwest,"
and situated between Isle Royale and the main shore, and by
consequence that the boundary must pass to the *• northward **
of them also. And he was further of opinion that the Long
Lake of the treaty was a sheet of water called by the inhab-
itanis and traders of the country Dog Lake, lying in the inte-
rior and forming part of the River Kamanistiquia, through
which it discharges into Lake Superioi* a little to the north-
ward of Isles Royale and Pat6.
The first objection to the boundary claimed
Kamanistiquia ijy ^^^^ British commissioner was, said Mr.
AmYrican^Com- ^^^^^^7 that, after passing to the northward
misnoner. ^^ ^^le Royale, it returned southwardly and
westwardly" through Lake Superior, in order
to reach the River St. Louis, and thus made it appear that the
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•nc£^ Copy 04 far as it
J}€and Thampsoiy
A** C Sury^ to tfu Boards of'
Conunission 6.C. 7 Jr^ of ifu^ Btaiy of Ctmnt^.
<^sU dM Tofuurt.
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LAKE AND LAND LINE. 181
framers of the treaty of 1783 twice traversed the whole breadth
of the lake for no other conceivable purpose than to place the
inconsiderable territory of the Isle Royale within the limits of
the United States. If, on the other hand, the Kamanistiqaia
route were adopted, the description of the treaty woukl be
consistent and harmonious. A straight line through Lake
Superior, from St. Mary's Ri^er to the mouth of the Kamanis-
tiqaia, would intersect the Isle lioyale, while the most direct
water route between the two points would be to the north
rather than to the south of Isle Royale and of Isle Patd and
and its consorts. This argument would also apply with nearly
equal force in favor of the Kamanistiquia route as contrasted
with the mouth of Pigeon River and the beginning of the
Grand Portage, the most direct water route from which to
the St. Mary's River would pass to the south rather than
to the north of Isle Royale. Moreover, the route from the
mouth of the Kamanistiquia to the Lake of the Woods by
Dog Lake or Long Lake and Lac la Pluie was probably the
best, and afforded a more continuous water communication
than any other in the country. It was probably the route of
the French traders, and was still used by the English.
The only evidence, said Mr. Porter, adduced
St. Louis Eiver: |j^ gxipport of the St. Louis River route was
Viewso encan ^^mp^jg^^i {^^ ancient maps and in two letters
addressed to Mr. Hale, the British agent, in
1824, by Mr. McGillivray, a very resi)ectable and intelligent
British subject. The maps however seemed to militate against
the claim. They all represented the St. Louis as emptying
itself into the extreme southwestern bay or T)rojection of the
lake called Fond du Lac, and as much the longest stream dis-
charging itself into Lake Superior; and they all concurred in
giving it the name St. Louis. If the framers of the treaty had
intended this river, would they not have so expressed them-
selves? On the other hand, the Kamanistiquia was a small
stream in reference to the quantity of water it discharged, and
in shape partook as much of the character of a lake as of a
river, sometimes spreading into a broad, still sheet of water
and at others contracting into a narrow river or rapid, and
rendering appropriate the name of lake or river.
The letters of Mr. McGillivray, who was long at the head of
the British ^Northwest Company, trading with the Indians, Mr.
Porter considered decisive against the St. Louis River, since
they indicated that the writer believed the boundary intended
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182 INTERNATIONAL ARBITRATIONS.
by the treaty to be identified with the " Grand Portage route,"
a route well-known to northwestern traders as commencing at
a point on Lake Superior near the mouth of Pigeon River,
called by Mr. McGillivray Riviere aux Tourtres, which empties
into Lake Superior abreast of the Isle Royale, and about
eighty leagues northeast of the St. Louis or Fond du Lac.
On MitchelFs map, which was used by the
Pigeon Eiver. negotiators of the treaty of 1783, Long Lake
is located at the mouth of Pigeon River, and
partly for this reason Mr. Porter proposed to abandon his claim
to the mouth of the Kamanistiquia, where most of the early
geographers placed the Long Lake, and where a lake actually
existvS, provided the British commissioner would consent to
run the line from the mouth of the Pigeon River or Reviere
aux Tourtres up the middle of that river, and thence through
the most continuous water communication to Lac la Pluie.
The British commissioner, on the other hand, offered to aban-
don the St. Louis River if Mr. Porter would accept the Grand
Portage route, commencing on Lake Superior about six miles
southwest of the mouth of Pigeon River, and thence up that
river by the Portage route, alternately by land and water to
Lac la Pluie. This was tlie route assumed by Mr. McGillivray.
But though the difference between the commissioners was thus
greatly narrowed, and rendered of small consequence territori-
ally, Mr. Porter declined the offer on the ground that the treaty
required a water communication wherever one could be found.
He also declined a subsequent proposition of his British col-
league to take a water line commencing in the mouth of Pigeon
River, and thence proceeding to Rainy Lake, with a stipulation
that the Grand Portage route should be made free and com-
mon for the use of both parties, on the ground that such a
stipulation would involve the exercise of powers not confided
to him by his commission.
As to the St. Louis River route, Mr. Barclay
St Lonig Biver: ^^id that as the Tsles Philipeaux laid down
^ ™. ^ " on Mitchell's map and mentioned in the treaty^
did not exist, the next point to search for
after leaving Isle Royale was the Long Lake. At the meeting
of tlie commissioners at Montreal on October 25, 1824, the
agent of the United States presented a memorial praying
the board to proc^eed at once to determine what was meant by
the Long Lake, and submitted an argument and documents to
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LAKE AND LAND LINE. l83
show that it was at the month of Pigeon Eiver. At this time
the American commissioner, said Mr. Barclay, seemed to be in
accord with the agent, bnt the British commissioner declined
to settle the point till the whole boundary was surveyed and
ready for adjudication; and subsequently it suited the Amer-
ican agent to abandon the Pigeon River, and urge a route by
the Kamanistiquia forty miles farther north, in which he was
supported by the American commissioner.
Mr. Barclay supported the St. Louis River route on live '
separate grounds, which were:
1. That it afforded the most ostensible Long Lake. The
words of the treaty describing this section of the boundary
were, " through Lake Superior, northward of the Isles Royale
and Phelipeaux, to the Long Lake." In all other parts of the
treaty, descriptive of the line between the lakes, the terms
employed were, " through said lake to and through the water
communication into the lake," etc. The omission of the words
" water communication " indicated that the lake intended by
the treaty immediately united with Lake Superior, without
any contracted separation. The St. Louis River answered the
description, since, after expanding iuto a lake, it discharged
itself iuto Lake Superior, not by a bay, as did Pigeon River,
or by a continuous stream, but by a narrow mouth formed by
two mere points of land.
2. That it was an ancient commercial route. This qualifica-
tion, it was admitted, was also possessed by the Pigeon River
route; but Pigeon River exhibited no such Long Lake as the
treaty described, the only body of water in the whole course
of its communication between Lake Superior and Lac la Pluie
that could pretend to such a description being Crooked Lake,
and the waters connected with it, west of the Height of Land.
The Kamanistiquia River was not an ancient route, nor had it
any Long Lake, connected with Lake Superior, without con-
tracted water communication; Dog Lake, which was claimed
by the American commissioner, being nearly eighty miles up
the river, along which the traveler was required to traverse
numerous portages. It had been known as " Lac des Chiens,"
or Dog Lake, from the time of the earliest settlements, and its
form did not entitle it to be called the Long Lake.
3. That it was the most navigable, and interrupted by few
portages. It was also more direct, if considered with reference
to the voyage from the Sault Ste. Marie, than either of the
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184 INTERNATIONAL ARBITRATIONS.
other routes described. In these respects the route by the
Grand Portage and Pigeon Eiver was next to be preferred,
even according to the principle which the American com-
missioner pretended to contend for, of "the most direct and
continuous water communication.''
4. That it was anciently called "The Lake, or St. Louis
River." It was so denominated on many ancient maps.
5. That the language of the treaties implied that the bound-
ary west of the Isle Royale should run to the south thereof.
The language of the treaty, after mentioning the water com-
munication between lakes Huron and Superior, was " thence
through Lake Superior northward of the Isles Royal and
Phelipeaux." If the Long Lake, to which the line was next
directed, was supposed to lie north of Isle Royale, it was dif-
ficult to understand why the course of the boundary was
8i>eciflcally described as "northward" of that island, since
that would be its natural direction.
On the 23d of October 1826, at a meeting
^?*^^^*"J^held in the city of I^ew York, the commis
St Oeorge*8 Island. . , . . ,
sioners, with a view to prevent any misunder-
standing as to the opinions which they respectively maintained,
and to form a basis for the separate reports which, in cjise of
disagreement, they were required to make, caused to be entered
in their journal the result of their deliberations by describing
the course so far as they had agreed, and specifying the points
on which they could not agree.^ Following the line, from the
termination of their labors under Article VI., they described
their disagreement at the beginning of the line under Article
VILthus:
" That the commissioners disagree as to the course which
the boundary line should pursue from the termination thereof,
under the Gth article of the Treaty of Ghent, at a point in the
Neebish channel, near Muddy Lake, to another point in the mid-
dle of J!5t. Mary's river, about one mile above St. George's or
Sugar island; the British commissioner being of opinion that
the lineshouldbe conducted from thebeforementioned term Jiat-
ingpointof the boundary line under theCth article, being at the
entrance from Muddy Lake into the ship channel, between St.
Joseph's island and St. Tammany's island, to the division of
the channel at or near the head of St. Joseph's island; thence,
between St. George's island and St. Tammany's island, turning
westwardly through the middle of the Middle li^eebish, pro-
ceeding up to and through the Sugar rapids, between the
1 Br. and For. State Papers, LVII. 803 ; H. Ex. Doc. 451, 25 Cong. 2 sees.
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LAKE AND LAND LINE. 185
American main shore and the said ^t. George's island, so as
to appropriate the said island to his Britannic Majesty: and
the American commissioner being of opinion that the line
should be conducted from the beforementioued terminating
point of the boundary under the 6tii article, into and along the
shi]) (channel between St. Joseph's and St. Tammany's islands,
to tlie division of the channel at or near the head of St. Joseph's
island; (concurring thus far with the British commissioner;)
thence, turning eastwardly and northwardly around the lower
end of St. George's or Sugar island, and following the middle
of the channel which divides St. George's island, tirst from St.
Joseph's island, and afterwards from the main British shore, to
the before mentioned point in the middle of St. Mary's river,
about one mile above St. George's or Sugar island, so as to
appropriate the said island to tlie United States."
From the point last named to a point near
Agreement on line Xsle Roy ale, in Lake Sui)erior, the commis-
from St George's gjongrs agreed. They expressed their agree-
IilandtoIileSoy- ^ ^,
^^ men t thus:
" That, in the opinion of the commissioners,
the following described line, which is more clearly indicated by
a series of mups prepared by the surveyors, and now on the
files of this board, by a line of black ink, shaded on the British
side with red, and on the American side with blue, is, so far
as the same extends, the true boundary intended by the trea-
ties of 178;5 and 1814; that is to say, beginning at a point in
the middle of St. Mary's river, about one mile above the head
of St. George's or Sugar island, and running thence, westerly,
throngli the middle of said river, passing between the groups
of islands nnd rocks which lie on the north side, and those wliich
lie on the south side of the Sault de Ste. Marie, as exhibited on
tlie maps; thence, through the middle of said river, between
points Iroquois and GrosGap, which are situated on the oppo-
site main shores, at the head of the river St. Mary's, and at
the entrance into Lake Superior; thence, in a straight line,
through Lake Superior, passing a little to the south of isle
Cariboiuf, to a point in said lake, one hundred yards to the
north and east of a small island named on the map Chapeau,
and lying opposite and near to the northeastern point of isle
Royaie."
From the point last mentioned to another
BiBagreement as to point designated on the maps at the foot of
linefromUleKoy. Qijj^^^j^re Falls, in Lac la Pluie, situated be-
ale to Lao la Flnie r \
tween Lake Snpericu' and the Lake of the
Woods, the commissioners again disagreed. The American
commissioner declared that in his opinion the line between
these two points ought —
"to proceed from the said point in Lake Superior, and, passing
Digitized by V^OOQ IC
186 INTERNATIONAL ABBITRATIONS.
to the north of the island named on the map ^Pat6,' and the
small group of surrounding islands which he supposes to be
the islands called Philipeaux in the treaty of 1783, in a direc-
tion to enter the mouth of the river Karaanistiquia, to the
mouth of said river; thence, up the middle of the river, to
the lake called Dog Lake, but which the American commis-
sioner supposes to be the same water which is called in the
treaty of 1783 Long Lake; thence, through the middle of Dog
or Long Lake; and through the middle of the river marked on
the maps Dog River, until it arrives at a tributary water which
leads to Lacdel'Eau Froide; thence, through the middle of
said tributary water, to its source in the highlands which
divide the waters of lake Superior from those of Hudson's
bay, near Lac de FEau Froide; thence across the height of
land, and through the middle of the lakes and rivers known
and described as the ^oUl road' of the French, to the river
Savannah; and thence, through Uie middle of the Savannah, to
Mille Lac ; through the middle of Mille Lac, and its water com-
munication with LacDarade; through the middleofLacDarade,
and its water communication with Lac Winnebago; through
the middle of Lac Winnebago, and its water communication
with Sturgeon lake; through the middle of Sturgeon lake, and
the Riviere IVIaligne, to Lac s\ la Croix; through the middle of
Lac A, la Croix, and its water communication with Lake Name-
can, to Lake Namecan; thence, through the uiichlle of Lake
Namecan, and its water communication with Lac la Pluie, to
the point in Lac la Pluie where the two routes assumed by the
commissioners again unite, as represented on the maps."
The British commissioner expressed the opinion that the line
ought, from the point of its commencement, to pass north of
Chapeau Island and Isle Royale; thence west of Isle Royale
through the middle of Lake Superior, and north of the islands
called the Apostles, through the middle of the Fond du Lac, to
the middle of the sortie or mouth of the estuary or lake of the
St. Louis River; thence up the middle thereof and through
various channels to the Grand Portage of about 11,915
yards on the north side of the river and its falls; thence by
this portage, the middle of the river, the Portage des Cou-
teaux, and the middle of the river again, to its junction with the
Riviere des Embarras; thence by the middle of the latter river
and various lakes and portages to the Portage of the Height of
Land; thence by this portage, the Vermilion River, and cer-
tain portages, to the Great Vermilion Lake; thence by this
lake, the Vermilion River again, and certain portages to Crane
Lake; thence through the middle of that lake and of Sand
Point Lake and its strait or river, into Lake Namecan; thence
Digitized by LjOOQIC
LAKE AND LAND LINE. 187
by the middle of this lake and the river to the nearest channel
to Lac la Pluie.
On the rest of the boundary under Article
^mi«wia°Pime* ^^^' ^^^"^ ^^^ ^* Pluie to the northwestern-
most head of the Lake of the Woods, the com-
missioners agreed. They described the line thus :
"Beginning at a point in Lac la Pluie, close north of island
marked No. 1, lying below the Chaudiere ialls of lake J^am-
ecan; thence, down this channel, between the islets marked
No. 2 and No. 3; thence, down the middle of said channel, into
La<5 La Pluie, westward of island No. 4; thence, through the
said lake, close to the south x>oint of island No. 5; thence,
through the middle of said lake, north of island No. G, and
south of island No. 7 ; thence through the middle of said lake,
to the north of islet No. 8, and south of islands No. 9, No. 10,
No. 11, and between islands No. 12 and No. 13; thence, south
of islands No. 14 and No. 15; thence, through the middle of
said lake, north of a group of islands, No. 16; tlience, south of
a group of rocks, No. 17 ; thence, south of a group of islets, No.
18; thence, north of an islet, No. 19; thence, through the mid-
dle of said lake, to the south of island No. 20, and all its con-
tiguous islets; thence, south of island No. 21, and midway
between islands No. 22 and No. 23 ; thence, southwest of island
No. 24; thence, north of island No. 25; thence, through the
middle of said lake, to its sortie, which is the head of the Riv-
iere La Pluie; thence, down the middle of said river, to the
Chaudiere falls, and having a portage on each side; thence,
down the middle of said falls and river, passing close south of
islet No. 26; thence, down the middle of said Kiviere la Pluie,
and passing north of islands No. 27, No. 28, No. 29, and No. 30 ;
thence, down the middle of said river, passing west of island
No. 31 ; thence, east of island No. 32 ; thence, down the middle
of said river, and of the Manitou rapid, and passing south of
No. 33 ; thence, down the middle of said river, and the Long
Sault rapid, north of island No. 34, and south of islets No. 35,
No. 36, and No. 37 ; thence, down the middle of said river, pass-
ing south of island No. 38; thence, down the middle of said
river, to its entrance between the main land and Great Sand
Island, into the Lake of the Woods ; thence, by a direct line to
a point in said lake, one hundred yards east of the most eastern
point of island No. 1 ; thence, northwestward, passing south of
islands No. 2 and No. 3; thence, northwestward of island No.
4, and south westward of islands No. 5 and No. 6 ; thence, north-
ward of island No. 7, and southward of islands No. 8, No. 9, No.
10, and No. 11 ; thence, through the middle of the waters of this
bay, to the northwest extremity of the same, being the most
northwestern point of the Lake of the Woods. And from a
monument erected in this bay, on the nearest firm ground to
the above northwest extremity of said bay, the courses and
Digitized by LjOOQ IC
188 INTERNATIONAL ARBITRATIONS.
distances are as follows, viz: 1st. N.,5Go W., 156.6J feet: 2d.
N.,6oW.,8GU feet; 3d. N., 28o W., 615.4 feet; 4th. N.,27o 10'
W., 495.4 feet j* 5th. K, 5o 10' E., 1,322J feet; Gth. N., 7o 45' W.,
493 feet ; the variation being 12^ east. The termination of this
Gth or last course and distance, being the above said most
northwestern i)oint of the Lake of the Woods, as designated by
the 7th article of the treaty of Ghent ; and being in the latitadc
forty-nine degrees twenty-three minutes and fifty-five seconds
north of the eqaator; and in longitnde, ninety-five degrees
fourteen minutes and thirty-eight seconds west from the observ-
atory at Greenwich."
Having thus entered their points of agree-
^'^ro^M ^' nient and disagreement, the commissioners
caused to be entered in the journal certain
propositions, made by each of them during their oral discus-
sions, of lines different from those assumed in their preceding
joint declaration. These proi)ositions, which were declared to
have been submitted by way of compromise, in the desire to
avoid the delay and expense of a reference to a third party,
were expressed in the journal thus:
''Mr. Porter (adhering inflexibly to his opinion that the
boundary ought to be run through the channel which divides
St. George's Island, in the River St. Mary's, from the British
shore, so as to appropriate that island to The United States,
inasmuch as the establishment of tiie line through the Amerl
can channel, which is much tlie smallest branch of the river,
would have the effect to throw the only navigable communica
tion for lake vessels, exclusively within the territories of one
of the parties, and thereby violate a principle, the strict
observance of which is in his view more important to the
interests of both Governments, than any other consideration
connected with the fair adjustment of the boundary and from
which he has never departed) proposed to his colleague that,
in regard to their differences respecting the Boundary between
Lake Superior and theChaudiere Falls in Lac la Pluie (St.
George's Island being first appropriated to The United States^
they should both relinquish the lines which they had respec-
tively assumed, and adopt in lieu thereof the following route,
namely :
'^ Beginning at the point in Lake Superior described as 100
yards distant from the island name<l Chapeau, near the north-
east end of lie Koyale, and proceeding thence to the mouth of
the Pigeon River, on tlie nortliwestern shore of the lake, enter
and ascend the niiddle of that river, and leaving it at its junc- ^
tion with Arrow River, proceed to Lake Namecan and Lac la *
Pluie, by the most direct and most continuous water commu-
nication, as delineated on the reduced map on the files of this
board to which reference was already made.
Digitized by LjOOQ IC
LAKE AND LAND LINE. 189
" The British Commissioner, on the other haijd, still main-
taining the chiim of Great Britain to St. George^s Island, and
to the establishment of the line through the middle Neebish,
and the Sugar Eapids, as before set forth, stated to his col-
league the necessity of his adherence to the same, as he con-
sidered that the application of the same principles which under
Article VI. of the Treaty of Ghent, appropriated Barnhart's
Island in the St. Lawrence, and the Islands at the head of
Lake St. Clair, lying between the boundary line as there set-
tled, and the American main shore to Tlie United States,
would in this instance require St. George's Island to be allotted
to great Britain.
" Mr. Barclay, however, impressed with the propriety not
only of dividing the doubtful territory between the two Gov-
ernments, but also of preserving the navigation free to both
nations, proposed to stipulate with the American Conimis-
siuner, upon condition of his agreeing to fix the boundary in
the Middle Neebish and Sugar Eapids, and to allot St. George's
Island to (ireat Britain, that the Channel through the East
Neebish and Jjiike George should remain free for the fair and
lawful commerce of both nations, provided the Commissioner
of The United States would guarantee the like with respeitt
to the channel running on. the south-east side of Barnhart's
Island, and to that channel, tlirough the islands of Lake St.
Clair, which is contiguous to the American mainland, and
which is commonly used becanse it is the easiest and safest.
And as to the proposition of Mr. Porter to conduct the line
'from Lake Superior to the mouth of Pigeon River; thence
through the middle of said river, proceeding to Lac la Pluio
by the most direct and continuous water communication,' Mr.
Barclay consented to adopt a route from Lake Superior, by
the Grand Portage, to Pigeon River, and thence by the most
easy and direct route to Lac la Pluie, provided the American
Commissioner would consent that tlie boundary should be
conducted from water to water, overland, through the middle
of the old and accustomed portages, in those places where
from falls, rapids, shallows, or any other obstruction, the
navigation and access into the interior by water, are rendered
impracticable."^
The. matter just detailed, which the com-
Clonng BeMicmi of njij^gioQ^pg caused on the 23d of October 1826
Oommitsionen.
to be entered in their journal, they transmitted
to their governments, and on the 10th of November they ad-
journed till the 1st of March in the following year, in order
that they might have an opportunity to receive instructions.
Their meeting was postponed till October 22, 1827, when the
»Br. and For. State Papers, LVII. 810-811.
Digitized by LjOOQIC
190 INTERNATIONAL ARBITRATIONS.
board assembled again in New York, on the request of Mr.
Barclay. The two commissioners, the agent of the United
States, and the principal surveyor on the part of Great Britain
attended. The services of Mr. Hale, the British agent, were
terminated on the 5tli of April 1827. Many maps were sub-
mitted in quadruplicate as of October 23, 182G. Since the last
meeting each commissioner had proposed a compromise which
the other had not accepted, and the British Government had
directed Mr. Barclay to close the commission in the manner
indicated by the treaty. Mr. Barclay signified his willingness
to do this so soon as the final accounts could be audited.
Mr. Porter, believing an amicable adjustment of the whole
line at that time to be desirable, said he felt a strong disposi-
tion to attain that object by mutual and liberal concessions
of opinion in regard to dift'erences which did not materially
affect any great and leading interest of the other party; but
that, as his colleague persisted in his claim to run the line
through the west channel of the St. Mary's River, opposite to
St. George's Island, he perceived no hope of an agreement,
and would prepare to submit his separate report.
Meetings of the commissioners were held on
ExpenBesof CommiB- ^he 23d, 24th, and 25th of October, and on
the last- mentioned day they presented their
accounts. The whole expense under Articles VI. and VII.
amounted, on the part of the United States, to $84,786.19J,
and on the part of Great Britain to $93,310.31. The excess
of the British expenditure being $8,530.12, it was ordered
that the American commissioner draw on his government for
$4,265.00, in order to balance the accounts.'
On the 27th of October 1827 the commis-
FinalKeporteand gioners agreed that their resi^ective reports,
joTininieii . witnessed by one or both of the secretaries,
should be exchanged in New York. On the 24th of December
they met in New York for that purpose, and after exchanging
their reports adjourned sine die.^ The report of Mr. Porter
is dated at Black Rock, N. Y., December 12, 1827, and is wit-
nessed by Donald Fraser, secretary to the commission ; Mr.
Barclay's report is dated at New York, October 25, 1827, and
' Br. and For. State Papers, LVII. 822, 823. See, also, as to expeDditiires,
Am. State Papers, For. Rel. V.50; 3 Stats, at L. 288,358,422,561,673,762;
4 Id. 16, 91, 148, 214.
* Br. and For. State Papers, LVII. 823.
Digitized by LjOOQIC
LAKE AND LAND LINE. 191
is witnessed by Richard Williams, the assistaut secretary.^
The substance of them is given above, in the summary of the
commissioners' arguments for the routes for which they respec-
tively contended.
After the exchange of the rei)orts of the
Kegotiatioiii of Mr. commissioners in New York, no discussion as
Zhtoto^* ^'* to the boundary under Article VII. seems to
have taken place between the two govern-
ments for a period of ten years. ^ The dispute as to the north-
eastern boundary question overshadowed the differences as to
the line under Article VII. In 1839 and 1840 those differences
formed the subject of a correspondence, but it was not till 1842
that they were settled. In a note to Lord Ashburton of the
16th of July in that year Mr. Webster, after describing a line
for the northeastern boundary, observed ; " It is probable, also,
that the disputed line of boundary in Lake Superior might be
so adjusted as to leave a disputed island within the United
States." In his reply of the next day Lord Ashburton said he
was prepared to give up the " first point," as to the Island of
St. George, which was " the only object of real value in this
controversy." As to the second difference, he proposed a line
" from a point about six miles south of Pigeon River, where
the Grand Portage commences on the lake, and continued
along the line of said portage, alternately by land and water,
to Lac la Pluie, the existing route by land and by water remain-
ing common to both parties." Lord Ashburton added, how-
ever, that in making the important concession of the island of
St. George he must attach to it a condition of accommodation
in two points. He said :
'^The first of these two cases is, at the head of Lake St.
Clair, where the river of that name empties into it from Lake
Huron. It is represente<l that the channel bordering the
United States coast in tliis part is not only the best for navi-
gation, but, with some winds, is the only serviceable passage.
I do not know that, under such circumstances, the passage of
» H. Ex. Doc. 451, 25 Cong. 2 seas.
2 In response to a resolntion of the House of Representatives of May 28,
1838, caHing for any information and correspondence relating to Article
VII., President Van Bnren on the 2nd of tho foUowing July transmitted to
the House a report of the Secretary of State, accompanied with the sepa-
rate reports of the commissioners, and stating that they contained '' all
the information on the subject on the files of the Department.'^ (H. Ex. Doc.
451; 25 Cong. 2 sess.)
Digitized by LjOOQIC
192 INTERNATIONAL ARBITRATIONS.
a British vessel would be refused ; but, on a final settlement
of the boundaries, ifc is desirable to stipulate for wbat the
commissioners would probably have settled, had the facts
been known to them.
*' The other case, of nearly the same description, occurs on
the St. Lawrence, some miles above the boundary at St. Regis.
In distributing the islands of the river, by the commission-
ers, Barnhart's Island and the Long Sault Islands were assigned
to America. This part of the river has very formidable rapids,
and the only safe passage is on the southern or American side,
between those islands and the mainland. We want a clause
in our present treaty to say tlial, for a short distance, namely,
from the upper end of Upper Long Sault Island to the lower
end of Barnhart's Island, the several channels of the river
shall be used in common by the boatmen of the two countries.'' *
Mr. Webster readily conceded that the channels on either
side of the Long Sault Islands in the St. Lawrence, and the
passages between the islands lying at or near the junction of
the River St. Clair with the lake of that name, should each
be free and open to the vessels of both countries, and asked
that, reciprocally, American vessels should, in proceeding from
Lake Erie into the Detroit River, have the privilege of
passing between the Bois Blanc, an island belonging to Great
Britain, and the Canadian shore, the deeper and better chan-
nel being on that side.^ In respect of the line northward of
the Isle Royale, he proposed that it should run to the mouth
of Pigeon River. There was, he said, reason to think that
" Long Lake," in the treaty of 1783, meant merely the estuary
of the Pigeon River; and this opinion was strengthened by
the fact that the words of the treaty seemed to imply that the
water intended as "Long Lake" was immediately joining
Lake Superior. But he thought it right that the water com-
munications and portages between this point an<J the Lake of
the Woods should make a common highway, where necessary,
for the use of the subjects and citizens of both governments.
These terms Lord Ashburton accepted, at the same time
observing that provision for the greater facility of the navi-
gation of the St. Lawrence, of the two passages between the
upper lakes, and of the passage i^om Lake Erie into the
Detroit River, must be secured by declaring the several pas-
sages in those i)arts free to both parties, and that the free use of
« Webster's Works, VI. 281.
« Webster's Private Correspondence, II. 140 ; Webster's Works, VI. 284.
Digitized by LjOOQIC
LAKE AND LAND LINE. 193
the navigation of the Loug Sault passage in the St. Lawrence
mnst be extended to below Barn hart's Island for the purpose
of clearing the rapids.
-Br ,^ . ^v_ These suggestions ,were incorjwrated in the
j^j^. treaty which was signed on the 9th of August
1842. The provisions relating to the bound-
ary in question are comprised in the second and seventh
articles, the former of which adopts the line of the commis-
sioners under Article VII. of the Treaty of Ghent, so far as
they agreed upon it,^ and for the rest fixes the boundary as it
has just been described. The text of the articles is as follows :
"Article II.
"It is moreover agreed, that from the place where the joint
commissioners terminated their labors under the sixth article
of the treaty of Ghent, to wit, at a point in theNeebish Channel,
near Muddy Lake, the line shall run into and along the ship-
channel between St. Joseph and St. Tammany Islands, to the
division of the channel at or near the head of St. Joseph's
Island; thence, turning eastward ly and northwardly around
the lower end of St. George's or Sugar Island, and following
the middle of the channel which divides St. George's from St.
Joseph's Island; thence up the east Neebish Channel, nearest
to St. George's Island, tlirough the middle of Lake George;
thence, west of Jonas' Island, into St. Mary's Kiver, to a point
in the middle of that river, about one mile above St. George's
or Sugar Island, so as to appropriate and assign the said island
to the United States; thence, adopting the line traced on the
maps by the commissioners, thro' the river St. Mary and Lake
Superior, to a point north of He Koyale, in said lake, one hun-
dred yards to the north and east of He Chapeau, which last-
mentioned island lies near tlie northeastern point of He Royale,
where the line marked by the commissioners terminates; and
from the last mentioned point, southwesterly, through the mid-
dle of the sound between lie Royale and the northwestern
main laud, to the mouth of Pigeon lliver, and up the said
river, to and through the north and south Fowl Lukes, to the
* Mr. Fish, in an instruction to Mr. Moran, at London, of May 21, 1869,
acknowledges the receipt of a dispatch from Mr. Reverdy Johnson of
April 23, with copies of five maps, the originals and duplicates of which
were prepared by the commission under Articles VI. and VII. of the Treaty
of Ghent, and says: ^'That commission having failed to come to an agree-
ment as to a part of the line intended l>y the 7th article of the Treaty of
Ghent, these maps of survey which they prepared were referred to by the
negotiators of the Treaty of Washington, as the means of indicatiufr the
boundary agreed upon in the 2nd article of that Treaty." (M8S. Dept.
of Btate.)
6637 13
Digitized by LjOOQIC
194 INTERNATIONAL ARBITRATIONS.
lakes of the height of land between Lake Superior and the
Lake of the Woods; thence, along the water communication
to Lake Saisaginaga, and through that lake; thence, to and
through Cypress Lake, Lac du Bois Blanc, Lac la Croix, Little
Vermillion Lake, and Lake Kamecan and through the several
smaller lakes, straits, or streams, connecting the lakes here
mentioned, to that point in Lac la Plnie, or Rainy Lake, at the
(/handiere Falls, from which the commissioners traced the line
to the mr)st northwestern point of the Lake of the Woods;
thence, along the said line, to the said most northwestern point,
being in latitude 49° 23' 55" north, and in longitude 95° 14' 38"
west from the observatory at Greenwich; thence, according to
existing treaties, due south to its intersection with the 49th
parallel of north latitude, and along that parallel to the Rocky
Mountains. It being understood that all the water communi-
cations and all the usual portages nlong the line from Lake
Superior to the Lake of the Woods, and also Grand Portage,
from the shore of Lake Superior to the Pigeon River, as now
actually used, shall be free and open to the use of the citizens
and subjects of both countries.
"Article VII.
"It is further agreed that the channels in the river St. Law-
rence on both sides of the Long Sault Islands and of Barnhart
Island, the channels in the River Detroit on both sides of
the island Bois Blanc, and between that island and both the
American and Canadian shores, and all the several channels
and passages between the various islands lying near the junc-
tion of the river St. Clair with the lake of that name, shall be
equally free and open to the ships, vessels, and boats of both
parties."
In the message with which the treaty was
^T^r^ ^4^^ submitted to the Senate it was observed that
SetUement.
the region of country on and near the shore
of Lake Superior, between Pigeon River on the north and
Fond du Lac and the River St. Louis on the south and west,
embraced, northward of the claim set up by the British com-
missioner under the Treaty of Ghent, a territory of 4,000,000
acres, considered valuable as a mineral region, while from the
height of land at the head of Pigeon River westerly to the
Rainy Lake the country was understood to be of little value,
being described as a region of rock and water. The message
also explained the provisions of the treaty relating to the com-
mon navigation of certain channels — a measure rendered neces-
sary in order to secure the use of the water communication
through the Great Lakes to both parties.
Digitized by LjOOQIC
LAKE AND LAND LINE. 195
By Article IV. of the reciprocity treaty of
^Md W7i!*^ 1854 the right to navigate both the River St.
Lawrence above the point where it ceases to
be the boaiidary and the canals in Canada used as part of tiie
water communication between the Great Lakes and the At-
lantic Ocean was temporarily secured to the citizens and in-
habitants of the United States. By Article XXVI. of the
Treaty of Washington of May 8, 1871, the same right as to the
St. Lawrence is secured in perpetuity. By Article XXVII.
the British Government engaged to urge upon the government
of the Dominion of Canada to secure to the citizens of the
United States the use of the St. Lawrence, Welland, and
other canals in the Dominion on terms of equality with its
inhabitants; and the United States engaged to permit British
subjects to use the St. Clair Flats Canal on terms of equality
with the inhabitants of the United States, and also to urge
upon the State governments to secuie to British subjects in
the same manner the use of the sevenil State canals connected
with the navigation of the lakes or rivers traversed by or con-
tiguous to the boundary. By Article XXVIII. the right to
navigate Lake Michigan for commercial purposes was secured
to British subjects for a limited term.^
'See, in relation to the subject of this chapter, the International Boun-
dary of Michigan, by Annah May Soule. (Reprinted Irom Michigan
Pioneer aud Historical Collections, XXVI.)
Digitized by LjOOQIC
CHAPTER VII.
THE SAN JUAN WATER BOUNDARY: ARBITRA-
TION UNDER ARTICLES XXXIV.-XLII. OF THE
TREATY OF MAY 8, 1871.
By the convention signed at Loudon Octo-
Boundary from Lake ^er 20, 1818, by Albert Gallatin and Richard
IL^^kI^^ Rush ou the part of the United States and by
Frederick John Robiuson and Heury Goul-
buru ou the part of Great Britain, the boundary between the
territories of the United States and those of His Britannic
Majesty, from the most northwestern point of the Lake of the
Woods to the Stony or Rocky Mountains, was fixed at the
forty-ninth parallel of north latitude. And iu case it should
be found that the most northwestern point of the Lake of the
Woods was not on that parallel, it was provided that a line
should be drawn from that point due north or south, as the
case might be, till it should intersect the parallel, and that
from such point of intersection the boundary should be con-
tinued due west along the forty-ninth parallel to the Stony
^lountainsJ
On the 15th of June 1846 James Buchanan,
^^T^BwiJ^mI^*- Secretary of State of the United States, and
i^i^jj, Richard Pakenham, British minister at Wash-
ington, concluded a treaty for the adjustment
of differences between the two countries '^respecting the sover-
eignty and government of the territory on the northwest coast
of America, lying westward of the Rocky or Stony Mountains."
The territory thus referred to is that which was known at the
'Article II. In connection with this chapter, see Bancroft's History of
Oregon, and his History of the Northwest Coast; Benton's Thirty Years'
View; Greenhow's History of Oregon and California; Twiss's Oregon Ter-
ritory; Gallatin's Oregon Question; Curtis's Life of James Buchanan;
Cones's History of the Expedition under the Command of Lewis and Clark ;
Maine's International Law; Br. and For. IState Papers, L. 796; LV. 743,
1211, 1284 ; LIX. 21 ; LXII. 188.
196
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THE SAN JUAN WATER BOUNDARY. 197
time as the Orepron territory, embracing what is now comprised
in British Cohimbia and the States of Washington, Oregon, and
Idaho. It was bounded, according to the claim of the United
States, by the forty-second parallel of north latitude on the
south, by the line of 54° 40' on the north, and by the Eocky
or Stony Mountains on the east. It embraced, roughly speak-
ing, an area of G00,000 square miles. Over all this territory
the United States claimed to be the rightful sovereign. This
claim was disputed by Great Britain. The treaty of June 15,
1846, was intended to terminate the dispute by a nearly equal
division of the territory. The first article, by which the
dividing line was defined, reads as follows:
" From the point on the forty-ninth ]>arallel of north latitude,
where the boundary laid down in existing treaties and conven-
tions between the United States and Great Britain terminates,
the line of boundary between the territories of the United
States and those of Uer Britannic Majesty shall be continued
westward along the said forty-ninth parallel of north latitude
to. the middle of the channel which separates the continent
from Vancouver's Island; and thence southerly through the
middle of the said channel, and of Fuca's Straits, to the Pacific
Ocean : Provided, however, that the navigation of the whole of
the said channel and straits, south of the Ibrty-ninth parallel
of north latitude, remain free and open to both parties."
This article, so far as it described the bound-
tarBo Aa ary On land along the forty-ninth parallel of
north latitude, was definite, and the line only
required to be surveyed ; but an examination of the text in con-
nection with a map of the coast will disclose the fact that the
language relating to the water boundary was not definite. Just
below the forty-ninth parallel of north latitude, where it strikes
the Gulf of Georgia, there is an archipelago, commonly called
the Haro Archipelago, consisting of a large number of small
islands, between which there are several channels that connect
the waters of the Gulf of Georgia with the waters of the Straits
of Fuca. At the time when the treaty was made only two of
these channels had been surveyed and marked. These were the
Canal de Haro, named after its Spanish explorer, and a chan-
nel to the east, which was variously known as Rosario Strait, as
Ringgold's Channel, sometimes as Vancouver's Straits or Chan-
nel, and by Spanish navigators as the Canal de Fidalgo. But,
in spite of its wealth of names, this eastern channel, though
designated as the Canal de Fidalgo on the Spanish admiralty
charts, was not designated by name on any of the general maps
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198 INTERNATIONAL ARBITRATIONS.
of the nortli west coast likely to have been used by the neg:otia-
tors of the treaty of 1846. On the chart of Vancouver, which
doubtless was used by the British Government, the Oanal de
Haro is marked as the Canal de Arro, the phonetic reproduc-
tion in English of its Spanish name. The Bosario Strait is not
denoted on Vancouver's chart by any name, but is marked by a
line as the channel through which Vancouver sailed from the
Straits of Fuca to the Gulf of Georgia. When we consider these
facts, it is obvious that the language of the treaty left room for a
dispute as to what channel was intended by " the channel which
separates the continent from Vancouver's Island.^ An exam-
ination of the history of the negotiations will also show that
there was no express understanding between tlie two govern-
ments at the time the treaty was concluded ns to the channel
that was intended. Although the language employed was not
free from doubt, that which has so often happened in the nego-
tiation of treaties happened again. The negotiations had, after
many years of controversy, reached a critical stage, when both
parties were desirous of securing an amicable result, but appre-
hensive lest any delay might jeopardize and prevent it. At
such a conjuncture it has not infrequently happened that a
treaty has been signed without any disclosure of the uncer-
tainty as to its meaning which either or both of the parties may
have felt.
The boundary question submitted under the
^I!^riaia!^ Treaty of Washington of 1871 to the arbitration
of the Emperor of Germany was the last point
of difference in a territorial contest the origin of which must be
sought in the struggles of England, France, and Spain for em-
pire in America. By th e secon d article of the treaty of i)eaee be-
tween the United States and Great Britain concluded November
30, 1782, and made definitive Septembers, 1 783, it was provided
that the northern boundary of the United States should pass
through the Great Lakes tx) the Lake of the Woods, and thence
through the latter "to the most northwestern i^oint tliereof,
and from thence on a due west course to the river Mississippi.''
By the fourth article of the treaty of 1794, commonly called the
Jay Treaty, it was declared to be uncertain whether the Mis-
sissippi extended so far north as to be intersected by a line
drawn due west from the Lake of the Woods in the manner
prescribed, and a joint survey of the line was provided for.
This survey never was made; and by the fifth article of a
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THE SAN JUAN WATER BOUNDARY. 199
convention concluded by Lord Hawkesbury and Rafus King on
the 12th of May 1803 it was provided that, in view of the un-
certainty as to the extent of the Mississipxn northward, the
boundary should be " the shortest line" that could be drawn
"between the northwest j>oint of the Lake of the Woods and
the nearest source of the Mississippi."
Before this convention could be acted upon by the Senate the
treaty with France of April 30, 1803, for the cession of Loui-
siana was confirmed. By this transaction the United States
acquired a vast region west of the Mississijipi. Whether it ex-
tended beyond the Kocky Mountains is a question as to which
the authorities are not in accord ; but there were other grounds
on which the United States claimed territory on the Pacific.
In 1792 Capt. Robert Gray, of the American ship Columbia^
entered and explored the Kiver of the West, which he named
from his ship, the Columbia Kiver.^ On the 18th of January
1803 President Jeff'erson sent a confidential message to Con-
gress recommending that an appropriation be made for western
exploration, and in the following summer Lewis and Clark set
out on their memorable expedition, in which, after having trav-
ersed the country west of the Mis8issi])pi, they entered the
main branch of the Columbia and descended the river to its
mouth. In 1811 John Jacob Astor, an American merchant,
formed at Astoria a fur-trading settlement. This settlement
was occupied by the British during the war of 1812, but at the
conclusion of peace was restored to the United States, in
accordance with the requirements of the treaty.* But in ad-
dition to these acts of discovery and occupation, the United
States, by a trt^aty concluded February 22, 1819, acquiretl all
the rights of Spain to territory on the Pacific north of the
forty-second parallel of north latitude.
On the part of Great Britain, the first sub-
^!r^* \r» ' stantial claim of title was based on the explo-
TamtonBi daun.
rations of Captain Cook in his third voyage to
the Pacific. The Spanish explorations of the coast preceded
this voyage by many years, but the Spaniaids formed no settle-
ments north of California. In 178G an association of British
merchants resident in the East Indies conceived the project of
'After Captain Gray's death the log of the ship ColnmMa was used by
his family as waste paper. Au extract from it iiui'lo in 1816 is ull that
remains of its contents. (S. Rep. 470, 25 Coug. 2 sess.)
-Am. State Papers, For. Rel. 8r>2-«5(>.
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200 INTKRNATIONAL ARBITRATIONS.
opening a trade to the northwest coast of America for the pur-
pose of supplying the Chinese market with furs. To this end
they established in 1788 a settlement at Nootka Sound. In
the following year a Spanish officer, in command of a frigate of
twenty-six guns, took possession of the buildings and lands and
seized two British vessels. The British Government demanded
reparation, which Spain, by a treaty concluded October 28,
1790, commonly called the Nootka Sound convention, granted.
By this treaty it was agreed that the buildings, lands, and
vessels taken from the British should berestored, and that the
respective subjects of the contracting i)arties should not be
disturbed or molested in navigating or fishing in the sea, or in
landing on the coasts in places not already occupied for the
purpose of carrying on commerce with the natives or of making
settlements.^ In 1793 explorations of parts of the coast were
made by Vancouver, and in the same year Alexander Mackenzie
traversed the continent from the east, exploring the territory
north of the valley of the Columbia. About the same time
settlements were made in that territory by the Hudson's Bay
Company.
From this brief summarj' of the grounds on which the United
States and Great Britain based their pretensions to the Oregon
territory, the case appears to have been eminently one for dip-
lomatic compromise. The original claim of Spain, by virtue of
the discovery of America and the bull of Pope Alexander VI.
of 1493, to all of the western hemisphere that was not allotted
by the Pope to Portugal, was disregarded by other European
powers. Colonies were planted both by England and by
France all the way from the Floridas to Hudson's Bay,* and
the early charters granted by the British Crown purported
to operate from the Atlantic to the Pacific. A stronger Spanish
^ Annual Register, 1790, p. 91.
2 By the treaty between Great Britain and Spain of July 18, 1670, Article
VII., it was "agreed, that the Most Serene King of Great Britain, bis
Heirs and Successors, shall have, hold, keep, and enjoy forever, with ple-
nary right of Sovereignty, Dominion, Poseession, and Propriety, all those
Lands, Kegions, Islands, Colonies, and places whatsoever, being or sita-
ated in the West Indies, or in any part of America, which the said King
of Great Britain and his Subjects do at present hold and possess, so as that
in regard thereof, or upon any colour or pretence whatsoever, nothing
more may or ought to be urged, nor any question or controversy b© ever
moved concerning the same hereafter.'' (Br. and For. State Papers, I.,
Part 1, p. 609.)
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THE SAN JUAN WATER BOUNDARY. 201
claim than that above mentioned was that based on the explo-
rations and assertions of sovereignty by the early Spanish nav-
igators on the northwest coast ; but, though the United States
placed great stress on this source of title after its acquisition
of the Spanish rights in 1819, it is clear that both the United
States and Great Britain had made claims of discovery and
occupation which impugned the Spanish title.
In resuming the thread of the diplomatic
Xarly iTflgotiatLoiu. negotiations, which was dropped at the con-
clusion of the Hawkesbury-King convention in
1803, it is important to bear in mind the dates of the principal
acts by which the United States acquired itsclaims totheOregon
territory, viz, the exploration of tlie Columbia River by Cap-
tain Gray in 1792, the conclusion of the Louisiana Treaty in
1803, the expedition of Lewis and Clark of the same year, the
settlement at Astoria in 1811, and the treaty with Si>ain in
1819. In consequence of the conclusion of the Louisiana Treaty,
the Senate advised that the Hawkesbury-King convention
should be ratified without the fifth article, relating to bound-
aries. Great Britain declined to accept this amendment,^ and
the subject remained in suspense till 1807, when Messrs. Mon-
roe and Pinkney endeavored to adjust it. Oii the Slst of
December 1806, the commercial articles of the Jay Treaty
being about to expire, they signed, as commissioners of the
United States, with Lords Holland and Auckland as British
commissioners, a treaty of amity and commerce. After this
treaty was concluded the British commissioners proposed cer-
tain additional and explanatory articles, by the fifth of which
it was provided that the forty-ninth iiarallel of north latitude
should form the boundary westward from the Lake of the
Woods "as far as the territories of the United States extend
in that quarter," provided that nothing in the article should
be construed "to extend to the northwest coast of America,
or to the territories belonging to or claimed by either party, on
the continent of America, to the westward of the Stony
Mountains." The American commissioners objected to the
words " as far as the territories of the United States extend
in that quarter," and proposed to omit them. The British
commissioners in turn proposed to substitute the words,
1 Treaties and Conventions of the United States, 1776-1887, p. 1324; Am.
State Papers, For. Rel. II. 584 ; III. 90-97.
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202 INTERNATIONAL ARBITRATIONS.
"as far as their said respective territories extend in that
quarter," and to this proposal the American commissioners
assented. The proviso in regard to territories westward of the
Stony Mountains they accepted in the form in which it was
proposed.^ The Government of the United States accepted
the article as thus agreed upon, though it expressed a desire
for the omission of the proviso on the ground that it was
unnecessary and could have "little other effect than as an
offensive intimation to Spain" that the claims of the United
States extended "to the Pacific Ocean." llowever "reason-
able" such claims might be "compared with those of others,"
it was, said Mr. Madison, impolitic, especially at that time, to
strengthen Spanish jealousies of the United States.* The
additional and explanatory articles, however, were not con-
cluded. President Jefferson refused to submit the treat^^ itself
to the Senate, on the ground that it contained no renunciation
by the British Government of the claim of impressment, and
tlie negotiations at London came to an end.
In the negotiations at Ghent the Ameri-
^^GhenT* * ^^^ plenipotentiaries proposed, in respect of
boundaries, the article agreed on by the com-
missioners of the United States and Great Britain in 1807. The
British plenipotentiaries offered in turn the article first pro-
posed by the British commissioners. Lords Holland and Auck-
land, with an additional paragraph stipulating for free access
by British subjects through the territories of the United States
to the Mississippi, and for the free navigation of that river.
In the conferences that ensued the substance of an article, so
far as it related to the boundary line, was agreed upon; but as
the American plenipoteniaries would not accede to the addi-
tional paragraph, the article was finally omitted altogether.^
The next attempt to settle this boundary
ConventioiL of 1818. question was made during the negotiations
that resulted in the conclusion of the treaty
between the United States and Great Britain of October 20,
1818. John Quincy Adams, in his instructions to Messrs. Gal-
latin and Rush of July 28, 1818, observed that by correspond-
ence with the Spanish minister at Washington it appeared
» Am. State Papers, P'or. Rel. III. 165.
" Papers relating to the Treaty of WashingtoD, V. 23-24 ; Am. State Papers,
For. liel. III. 185.
3Am. State Papers, For. Rel. IV. 377.
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THE SAN JUAN WATER BOUNDARY. 203
tbat the claims of Spain to territ^ory on the Pacific extended
to the fifty-sixth degree of north latitude, but he also observed
that there was a Russian settlement in latitude fifty-five and a
temporary lodgment connected with it as far south as the forty-
second degree. It was not known, said Mr. Adams, on what
grounds the British contested the settlement at Astoria, which
was formed before the war, and broken uj) by the British
sloop of war Raccoon in the course of it, but which was restored
in consequence of the treaty of peace, Mr. Adams authorized
Messrs. Gallatin and Ensh to accept the line agreed on in 1807.
When on the 20th of October 1818 a convention was con-
cluded, the forty-ninth parallel of north latitude was adopted
as the line from the Lake of the Woods to the Rocky Moun-
tains, but no agreement could be reached as to the boundary
westward. The American plenipotentiaries proposed to ex-
tend the line along the forty-ninth parallel due west to the
Pacific Ocean. That line, they said, had, in pursuance of
the Treaty of Utrecht, been fixed indefinitely as the bound-
ary between the northern British possessions and those of
France, including Louisiana^ now a part of the United States;
and so far as discovery gave a claim, the title of the TJnited
States to the whole country on the waters of the Columbia
was, they argued, indisputable, since the river was discovered
by Captain Gray, an American, and was first fully explored
by Lewis and Clark. Moreover, tlie settlement at Astoria was,
they maintained, the first permanent establishment made in
that quarter. The British plenipotentiaries, on the other hand,
asserted that former voyages, and principally that of Captain
Cook, gave to Great Britain the rights derived from discovery,
and they also alluded to purchases from natives south of the
Columbia, which they alleged had been made before the Amer-
ican Revolution. They did not make any formal proposal for
a boundary, but intimated that the Columbia was the most
convenient that could be adopte<l, and that they would not
agree to any arrangement that would not give them a harbor
at the mouth of that river in common with the United States.^
At the fifth conference the British i)lenipotentiaries proposed
an article to the effect that the country lying between the
forty-fifth and forty-ninth parallels of latitude should be open
to the trade and commerce of both parties, without prejudice
' Am. State Papers, For. Rel. IV. 381.
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204 INTERNATIONAL ARBITRATIONS.
to the claims of either of them to its possession.^ The Amer-
ican commissioners declined to accept any arrangement which,
without settling the (jnestion of title, might seem to imply a
renunciation by the Ignited States of any of its claims to ter-
ritorial sovereignty ; and in the end it was agreed that any
territory claimed by either party should for a period of ten
years be free and open to both parties, without prejudice to
cither's claim of sovereignty. This agreement was embodied
in Article IIL of the convention, which reads as follows:
"It is agreed, that any country that may be claimed by either
party on the nothwest coast of America, westward of the Stony
Mountains, shall, together with its harbors, bays, and creeks,
and the navigation of all rivers within the same, be free and
open, for the term of ten j'ears from the date of the signature
of the present convention, to the vessels, citizens, and subjects
of the two Powers: it being well understood, that this agree-
ment is not to be construed to the prejudice of auy claim, which
either of the two high contracting parties may have to any part
of the said country, nor shall it bo taken to affect the claims of
any other Power or State to any part (»f the said country; the
only object of the high contracting ])arties, in that respect,
being to prevent disputes and ditferenccs amongst themselves.^-
Before the term for which this .article was to
TTkaae of 1821. remain in force had half expired, the question
of territorial rights on the northwest coast of
America was suddenly revived by the famous ukase of 1821,
by which the Emperor of Russia assumed to exclude foreigners
from carrying on commerce and from navigating and fishing
within a hundred Italian miles of the coast from Bering Straits
down to the fifty-first parallel of north latitude. As the ukase
was founded upon and necessarily carried with it an assertion
of title to all the territory north of that parallel, both the United
States and Great Britain protested against it. Their protests
were received by Russia in a friendly spirit, and it was agreed
that an effort should be made to settle the territorial claims of
the parties by negotiation. By this time the United States
had, as we have seen, by the treaty of February 22, 1819,
acquired all the territorial rights of Spain on the Pacific north
of the forty-second parallel of north latitude. On the 22d of
July 1823 Mr. Adams, in an instruction to Mr. Rush, then
minister of the United States at London, authorized him ''to
stipulate that no settlement shall hereafter be made on the
1 Am. State Papers, For. liel. IV. 391.
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THE SAN JUAN WATER BOUNDARY. 205
northwest coast or on any of the islands thereto adjoining by
Russian subjects south of latitude of 65^, by citizens of the
United States north of latitude oio, or by British subjects
either south of 51° or north of 55o. 1 mention the latitude of
Sio,'^ said Mr. Adams, "as the bound within which we are
willing to limit the future settlement of the United States, be-
cause it is not to be doubted that the Columbia River branches
as far north as 510, although it is most probably not the Taco-
ncsche Tesse of Mackenzie. As, however, the line already runs
in latitude 49^ to the Stony Mountains, should it be earnestly
insisted upon by Great Britain, we will consent to carry it in
continuance on the same parallel to the sea." ^ "The right of
the United States," said Mr. Adams in another i)lace, "from
the forty-second to the forty-ninth parallel of latitude on the
Pacific Ocean we consider as un(iuestionable, being founded,
first, on the acquisition by the Treaty of February 22, 1810, of
all the rights of Spain; second, by the discovery of the Colum-
bia River, first from sea, at its mouth, and then by land by Lewis
and Clark ; and, third, by the settlement at its mouth in ISll."^
On December 17, 1823, Mr. Rush had an
Euah's HegotaationB .^^^^j^^j^^^ ^^,.^^ -^j^. canning, who was then
indisposed, at Gloucester Lodge, the latter's
residence. This interview was solicited by Mr. Canning in
order that he might learn the views of the United States in re-
gard to the northwest coast before preparing his instructions
on the subject to the British ambassador at St. Petersburg. A
map of the coast was produced, find Mr. Rush pointed ont the
lines by which the claims of the T7nited States were bounded.
"Mr. Canning," says Mr. Rush, "went into no remarks, beyond
simply intimating that our claim seemed much beyond any-
thing England had anticiiiated. I said that I had the hope
of being able to show its good foundation when the negotia-
tion came on. Further conversation of a general nature i)assed
on the subject, and on coming away I left with him, at his
request, a brief, informal statement of our claim in writing."^
In this memorandum Mr. Rush said that the United States
would agree to make no settlement north of 51^ on Great
Britain's agreeing to make none south of that line or north of
•Am. State Papers. F<»r. Hv\. V. 1 1(1, 118.
«Am. State Papers, Tor. Uv\. \. iVA't-VM.
3 Residence at the Court of London, II. 83
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206 INTERNATIONAL ARBITRATIONS.
550. "What can this intend!'' asked Mr. Canning, in a per-
sonal note to Mr. Eash. "Our northern question is with
Russia, as our soutberu with the United States. But do the
United States mean to travel north to get between us and
Russia? and do they mean to stipulate agjiinst Great Britain
in favor of Russia; or to reserve to themselves whatever Rus-
sia may not want!" Mr. Rush answered that it was even so;
that the line of 55° was supposed to be the southern limit of
Russia, it being the boundary within which the Emperor Paul
granted certain commercial privileges to his Russian- American
Company in 1799; that 51^ was taken as the northern limit of
the United States in order to include all the waters of the
Columbia River, and that the United States did not intend to
concede to Riussia any system of colonial exclusion above 55^
or to deprive themselves of the right of traflBc with the natives
above that parallel. Mr. Canning acknowledged the receipt
of this explanation by saying that he would take it, "like the
wise and wary Dutchman of old times, ad referendum and ad
considerandum.^^ ^ Subsequently to this informal discussion,
President Monroe's message of December 2, 1823, was pub-
lished, in which it was announced that the American conti-
nents would not be considered as subjects for future coloniza-
tion by European powers. Mr. Canning inquired of Mr. Rush
as to the precise nature and extent of this principle, of which
he said he had not previously been aware. Mr. Rush replied
that he had had no instructions on the principle since it was
proclaimed in the message, but that he would be prepared to
support it when the negotiations came on. Mr. Canning then
said he would be under the necessity of addressing to Mr.
Rush an official note on the subject, prior to writing to the
British ambassador at St. Petersburg, or else of declining to
join the United States in the negotiation with Russia, as the
United States had proposed; and that he would prefer the
latter course, since he did not desire to bring that part of
the message into discussion for the present, as England must
necessarily object to it. Mr. Rush replied tliat he was entirely
willing that the negotiation should take that course, so far
as he had any claim to speak. To this position Mr. Rush was
impelled, as he explained to his own government, chiefly by
the consideration that, if a negotiation between the three
nations as to the northwest coast should take place at
^ Residence at the Court of London^ II. 84, 86.
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THE SAN JUAN WATER BOUNDARY. 207
St. Petersburg, the noii-eolonization principle, from which he
understood Russia also to dissent, might cause that power to
take the side of England against the United States.^ In con-
sequence, Mr. Hush entered upon a separate discussion with
Great Britain. The British plenipotentiaries, Messrs. Huskis-
sou and Stratford Canning, denied the validity of the claims
of Spain, as well as that of the claim of the United States
based on the alleged discovery of the Columbia River by Cap-
tain Gray, and declared that Great Britain considered the
whole of the unoccupied parts of America as being open to
her future settlement, including that portion of the north-
west coast lying between the forty-second and the fifty- first
degree of north latitude.^ The discussions proceeded to a
great length, and they were ended on the part of (Jreat Britain
by her plenipotentiaries oflering as the boundary the forty-
ninth parallel of north latitude to the point where it strikes the
northeastern most branch of the Columbia, and thence along
the middle of the Columbia to the Pacific Ocean, the naviga-
tion of that river to be free to the subjects and citizens of
both nations.' Mr. Rush, while rejecting this offer, consented
to alter his proposal so as to shift its southern line to the par-
allel of 49° in place of 51°. The British i)lenipotentiaries,
after considering this modification for a fortnight, rejected it,
and made no new proposal in return. This rejection was not,
however, in terms entered on the protocol.*
By the treaty between the United States
Line of 54"^ 40'. and Russia concluded April 17, 1824, the
northern limit of the claims of the United
States was fixed at 54^ 40' north latitude, it being agreed that
the citizens of the United States should not thereafter form,
under the authority of their government, any establishment
on the coast or the adjacent islands north of that line, and
that in the same manner Russian subjects should form no
establishment south of it. Thus Russia left it to the United
States and Great Britain to contest the territory south of
540 40', and the United States left it to Russia and Great
Britain to divide the teijritory to the north. This Great Brit-
ain and Russia did by the conventicm of February 28 (March
16), 1825.
* Residence at the Court of London, II. 86, 88.
- Id. II. 257.
3 Id, II. 270-271.
< Id, II. 272-273.
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208 INTERNATIONAL ARBITRATIONS.
Ill 182G Mr. Canning suggested to Rufus
GaUatin's Hegotia- King, who was then minister of the United
^*tiMi ^°™* ^*^^ States at London, that the negotiations be-
tween Great Britain and the United States
should be resumed.^ Mr. King, who was on the point of leav-
ing England, transmitted Mr. Canning's note to Washington.'-
Mr. Clay was then Secretary of State. He substantially re-
affirmed, for the guidance of Mr. Gallatin, who had succeeded
Mr. King in the mission to England, the instructions of Mr.
Adams to Mr. Eush ; but, while authorizing Mr. Gallatin to an-
nounce t he line of 49° as an ultimatum, said he might agree that
British subjects should have the right to navigate the Columbia
if that line should cross any of the branches of the river which
were navigable from the point of intersection to the ocean.^
The British plenii>otentiaries, Messrs. Huskisson and Adding-
ton, rejected this proposal on the ground, among others, that
the straight line had no regard to convenience, and mentioned
particularly that its cutting off the southern portion of Quadra
and Vancouver's Island was quite inadmissible.* Mr. Gallatin,
while not announcing 49° as an '^ultimatum," said that the
United States would adhere to that line as a basis. In em-
ploying, this form of expression he had in view the possible
^^ exchange of the southern extremity of Nootka's Island
(Quadra and Vancouver's), * * * for the whole or part of
the upper branches of the Columbia Elver north of that par-
allel." The British plenipotentiaries adhered substantially to
the line of the Columbia Kiver, offering the United States
above that line merely a detached portion of territory bounded
on tlie west by the ocean, on the north by Fuca's Straits, on
the east by the entrance of Admiralty Inlet and the peninsula
between that and Hoods Inlet, and on the south by a line
drawn thence to Gray's Harbor on the ocean. The British
plenipotentiaries dwelt on the excellence of the harbor of Port
Discovery, defended by Protection Island, which would thus be
secured to the United States. Mr. Gallatin rejected this pro-
posal at once, saying that it did not admit even of discussion as
to its details, as its principle was inadmissible. As the nego-
' Am. State Papers, For. Rel. VI. 645-646.
« Treaties and Conventions of the United States, 1776-1887, p. 1331, notes.
3 Am. State Papers, For. Kel. VI. 644-645.
* Am. State Papers, For. Rel. VI. 654.
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THE SAN JUAN WATER BOUNDARY. 209
tiators were unable to reach a settlement, they concluded on
August 6, 1827, a convention indefinitely extending the joint
occupation, subject to its termination by either party on twelve
months' notice. The conclusion of this convention " was rather
hastened than retarded by the death of Mr. Oanuinjj in August,
and the elevation of Lord Goderich to the post of Prime
Minister."^
The continuance of the joint occupation
J*™" ^ proved to be inconvenient and dangerous.
Settlers were beginning to occupy the territory
in large numbers, and they naturally looked to their respect-
ive governments for protection.* The Webster- Ashburton
Treaty, which was concluded on the 9th of August 1842, did
not provide for the adjustment of the dispute, and a proposal
made by the British minister at Washington later in the year
for the renewal of negotiations remained without result, though
President Tyler at one time contemplated sending a special
mission to England for the purpose of effecting a settlement.^
In 1844 Mr. Richard Pakenham arrived in the United States
as minister of Great Britain, and renewed in behalf of his
government the proposition to resume negotiations. Action
on this proposal was delayed by the killing of Mr. Upshur,
who was then Secretary of State, by the explosion of a gun on
board the United States man-of war Princeton,* After the
lapse of several months the negotiations were resumed by Mr.
Calhoun, who had succeeded Mr. Upshur as Secretary of State.
The propositions respectively advanced by the negotiators
were substantially the same as those discussed in London in
1827, Mr. Calhoun oliering the line of 49^, however, as an ulti-
matum. In January 1845, no agreement seeming to be
possible, Mr. Pakenham proposed to submit the dispute to
arbitration. This proposition Mr. Calhoun declined, saying
that it was the opinion of the President that it w(mld be inad-
visable to consider any other mode than negotiation, so long
1 Adamses Life of Albert Gallatiu^ 626.
* A select committee of the Uuited States Senate on June 6, 1838, reported
a bin to authorize the President to employ such parts of the Army and
Navy as he might deem necessary for the protection of the persons and
property of those who might reside in the territory. (S. Rei». 470, 25
Cong. 2 sess.)
'Curtis's Life of Daniel Webster, 11. 172.
^ Benton 'h Thirty Years' View, II. 567.
5627 U
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210 INTERNATIONAL ARBITRATIONS.
as there was a hope of arriving at a satisfactory settlement in
that way.^
Meanwhile the controversy was daily grow-
" Fifty-four Forty or . x a x i •
Fiffht" ^"^ more acute. A movement was made m
Congress to erect a Territorial government
without defining the domain over which its jurisdiction should
bo exercised. The Democratic convention that assembled at
Baltimore in May 1844 adopted a declaration popularly inter-
preted as meaning '^fifty-four forty or fight," to the effect that
the title of the United States 'Ho the whole of the territory of
Oregon" was "clear and unquestionable," and that "no part
of the same ought to be ceded to England, or any other power."
President Polk in his inaugural address made "the same decla-
ration in the very same words, with marks of quotation."*^ The
declaration was answered iu England in indignant tones. The
cry became general that war was "inevitable."^
Under the circumstances President Polk,
Mr. Bachanan's ajjj deference to what had been done by his
roposa . predecessors, and especially in consideration
that propositions of compromise had thrice been made, by two
preceding administrations, to adjust the question on the par-
allel of forty-nine degrees," deemed it to be his duty to make
another effort to settle.^ Accordingly Mr. Buchanan on the
12th of July 1845 proposed to divide the territory "by the
forty-ninth parallel of north latitude, ♦ ♦ ♦ offering at
the same time to make free to Great Britain any port or ports
on Yaucouver-s island, south of this parallel, which the British
Government may desire."^ This proposition, which did not .
include the free navigation of the Columbia, Mr. Pakenham,
without referring the matter to his government, on the 20th of
July rejected, saying that he hoped the American plenipoten-
tiary would "be prepared to offer some further proposals
* * * more consistent with fairness and equity, and with
the reasonable expectations of the British Government."*^ Ou
1 S. Ex. Dor. 1, 29 Cong. 1 aess. 161, 162.
- Webster's Works, 11. 321. See Blaine, Twenty Years of Congress, I.
51-56.
^ Will there be War? Analysis of the Elements which const! tnte, respec-
tively, the Power of England and the United States. By an Adopted
Citizen (L. Bonnefoiix), New York, February, 1846,
* S. Ex. Doc. 1, 29 Cong. 1 sesa. 10.
«/^. 169.
«/rf. 176,
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THE SAN JUAN WATER BOUNDARY. 211
the 30th of August Mr. Buchanan, after reviewing the contro-
versy at length and citing the language just quoted from Mr.
Pakenham's note, withdrew the proposition which the latter
had repulsed. Mr. Polk in his annual message to Congress on
the 2d of the following December recommended that the notice
required by the treaty of 1827 for the termination of the joint
occupation be given, after which it would be necessary to de-
termine whether "the national rights in Oregon must either
be abandoned or firmly maintained. That they cannot be
abandoned," he said, "without a sacrifice of both national
honor and interest, is too clear to admit of doubt." ^
The course of Mr. Pakenham in rejecting,
^^*Sitii^^* without reference, the proposal of Mr. Buch-
anan was not approved by the British Gov-
ernment. ' Mr. Pakenham endeavored to have the proposal
restored, but without success. The President refused to renew
the offer, determining after two Cabinet councils that it was for
the British Government to decide what further steps, if any,
they would take in the negotiation.^ In an interview on the
27th of December 1845 Mr. Pakenham, after urging again a
renewal of the offer of the forty-ninth parallel, handed Mr.
Buchanan a note in which it was stated that his government
had instructed him "again to represent in pressing terms, to the
Government of the United States, the expediency of referring
the whole question of an equitable division of the territory to
the arbitration of some friendly sovereign or state." In con-
versation Mr. Pakenham suggested as arbitrator the Kepublic
of Switzerland or the Government of Hamburg or Bremen. " I
told him," said Mr. Buchanan, "that whilst my own inclina-
tions were strongly against arbitration, if I were compelled to
select an arbitrator it would be the Pope. That both nations
were heretics, and the Pope would be impartial. He (Mr.
Pakenham) perceived, however, that I was not in earnest, and
suggested ^at the reference might be made to commissioners
from both countries. I told him I thought it was vain to think
of arbitration; because, even if the President Avere agreed to it,
which I felt pretty certain he was not, no such treaty could
pass the Senate."^ On the 3d of January 1846 Mr. Buchanan
formally declined the British proposal on the ground that it
» S. Ex. Doc. 1, 29 Confj. 1 eesa. 13.
^Curtis's Life of Bnchanan, I. 554.
3Cnrti8*8 Life of Bucbauan, I. 556,
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212 INTERNATIONAL AEBITBATIONS.
assumed that the title of Great Britain to a portion of the
territory was valid, and thus took for granted "the very ques-
tion in dispute." Mr. Pakenham then proposed to refer the
question of title in either of the two powers to the whole of the
territory; but this proposition also Mr. Buchanan declined J
On the 26th of February 1846 Mr. Buch-
ti ti * ^^ anan wrote to Mr. McLaue, who was specially
charged with the discussion of the question in
London, that the fact was not." to be disguised that, from the
speeches and proceedings in the Senate, it is probable that a
proposition to adjust the Oregon question on the parallel of
490 would receive their favorable consideration."^ On the
18th of May Mr. McLane reported that he had had with the
Earl of Aberdeen "a full and free conversation," and that in-
structions would be sent out to Mr. Pakenham by the steamer
of the following day to submit " a new and further proposi-
tion ♦ * ♦ for a partition of the territory in dispute."
"The proposition," said Mr. McLane, "most probably will
offer substantially — First. To divide the territory by the exten-
sion of the line on the parallel of forty-nine to the sea — that
is to say, to the arm of the sea called Birch's Bay; thence
by the Canal de Haro and Straits of Fuca to the ocean, and
confirming to the United States — what indeed they would pos-
sess without any special confirmation — the right freely to use
and navigate the strait throughout its extent. Second. To
secure to the British subjects * ♦ * in the region north
of the Columbia and south of the forty-ninth parallel, a per-
petual title to all their lands and stations of which they may
be in actual occupation; ♦ # ♦ Lastly. The proposition
will demand for the Hudson's Bay Company the right of freely
navigating the Columbia River." ^
On the 27th of April the President approved
Temmiauoxi 0 oint ^ jQ\j^f^ resolution by which he was authorized
"at his discretion" to give the requisite notice
of an intention to terminate the joint occupation under the treaty
of 1827. The resolution was first adopted in the House by a
vote of 154 to 54. In the Senate it was amended, on motion of
Mr. Reverdy Johnson, by the insertion of a preamble, in which
it was recited that the authority to give notice was conferred
1 Webster's Works, II. 324.
* Papers relating to the Treaty of Washington, V.47.
3 Papers relating to the Treaty of Washington, V. 50.
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THE SAK JUAN WATER BOUNDAKY. 213
on the President with a view that the attention of the govern-
ments of the two countries might be "the more earnestly di-
rected to the adoption of all proper measures for a speedy and
amicable adjustment'" of their "differences and disputes."^
Notice of abrogration of the treaty of 1827 was communicated
by Mr. McLane to Lord Aberdeen on May 22, 1846.*
On the 6th of June 1846 Mr. Pakenham pre-
The Ore^n Treaty, sented to Mr. Buchanan a draft of a treaty.
This draft the President, before authorizing the
Secretary of State to sign it, took the unusual course of sub-
mitting to the Senate. The Senate, after three days' delibei-a-
tion, by a vote of 37 to 12 advised that the proposal of the
British Government be accepted, and on the 15th of June the
treaty was signed without the addition or alteration of a word.^
After its signature it was again submitted to the Senate, which
gave its advice and. consent to the exchange of the ratifications
by a vote of 41 to 14.*
In a private and confidential letter to Mr.
^'"^^dlr^***' McLane on the 6th of June 1846, the day the
draft of the treaty was presented by Mr. Pak-
enham, Mr. Buchanan said: "The proviso of the first article
would seem to render it questionable whether both parties
would have the right to navigate the Strait of Fuca, as an arm
of the sea, north of the parallel of 49°; neither does it provide
that the line shall pass through the Canal de Arro, as stated
in your despatch. This would probably be the fair construc-
tion."* In a letter to Mr. John Randolph Clay on Saturday,
> 9 State, at L. 109.
« Br. and For. State Papers, LVI. 1406-1410.
3 For. Rel. 1873, Part 3, p. 310.
* Cnrtis'sLife of Buchanan, 1. 560 ; Benton's Thirty Years' View, II. Chap.
CLIX. 673. Mr. Webster, in a speech at a public dinner in Philadelphia,
December 2, 1846, said: *'Now, gentlemen, the remarkable characteristic
of the settlement of this Oregon question by treaty is this. In the general
operation of government, treaties are negotiated by the President and rat-
ified by the Senate ; but here is the reverse,— here is a treaty negotiated by
the Senate, and only agreed to by the President." (Webster's VVTorks, II.
322.) The debates in Congress on the questions connected with the treaty
may be found in the CongreKsional Globe and Appendix for the first ses-
sion of the Twenty-niutli Congress. On the 11th of May 1846 President
Polk sent his special message to Congress, asking for the recognition of a
state of war with Mexico, and on the following day an act was passed declar-
ing that war existed.
<^Carti8's Life of Bnchanan. I. 559-560.
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214 INTERNATIONAL ARBITRATIONS.
the 13th of Jane, Mr. Buchanan, referring to the fact that the
treaty would be signed on the following Monday, said: ''The
terms are, an extension of the 49th parallel of latitude to the
middle of the channel which separates the continent from Van-
couver's Island, thence along the middle of this channel and
the Strait of Fuca, so as to surrender the whole of that Island
to Great Britain."^ Mr. Benton, in a speech in the Senate in
advocacy of the ratification of the treaty, said: "The line
* * * follows the parallel of forty-nine degrees to the sea,
with a slight deflection through the Straits of Fuca to avoid
cutting the south end of Vancouver's Island. ♦ ♦ ♦ When
the line reaches the channel which separates Vancouver's Island
from the continent * ♦ ♦ it proceeds to the middle of the
channel, and thence turning sonth through the channel de
Haro (wrongfully written Arro on the maps) to the Straits of
Fuca; and then west through themiddleof that strait to the sea.
This is a fair partition of these waters, and gives us everything
that we want, namely, all the waters of Puget Sound, Hood's
Canal, Admiralty Inlet, Bellingham Bay, Birch Bay, and with
them the cluster of islands, probably of no value, between De
Haro's Channel and the continent."^ We have already quoted
the language used by Mr. McLane in describing, in his dis-
patch of the 18th of May, the proposition Lord Aberdeen
" most probably " would make. In his instructions of the same
day to Mr. Pakenham with which the draft of the treaty was
sent out. Lord Aberdeen described the line as running from
the seacoast '*in a southerly direction through the centre of
King George's Sound and the Straits of Fuca to the Ocean —
thus giving to Great Britain the whole of Vancouver's Island
and its harbors."^ On June 29, 1846, in the House of Com-
mons, Sir Robert Peel, iu tendering the resignation of his min-
istry, described the British offer as follows: "That which we
proposed is the continuation of the forty-ninth parallel of lati-
tude till it strikes the Straits of Fuca ; that that parallel should
not be continued as a boundary across Vancouver's Island,
thus depriving us of a part of Vancouver's Island; but that
the middle of the channel shall be the future boundary, thus
leaving us in possession of the whole of Vancouver's Island,
^ Curtis's Life of Bncbanan, I. 561.
«S. Ex. Doc. 29, 40 Cong. 2 seas. 68.
3S. Ex. Due. 29, 40 Coug. 2 sess. 81
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The SAN juaK water boundary. 215
with equal right to navigation of the Straits." ' It thus ap-
pears that while the language of the treaty was, as Mr. Buch
anan admitted, capable of more than one construction, the
object of the contracting parties in deflecting the boundary
southward from its course along the forty-ninth parallel was
to give the whole of Vancouver's Island to Great Brihiin.
On October 19, 1846, Mr. Boyd, charge
Doubt Baiaed at to d'affaires ad interim of the United States at
oundAzy. London, informed Mr. Buchanan that it had
recently come to his knowledge, through channels not directly
official, yet entitled to implicit reliance, that certain British
subjects were contemjdating the founding of a settlement on
Whidby's Island, one of the archipelago south of the forty-
ninth parallel, and that the government, which had been led
to expect a formal application for its sanction of such settle-
ment, had been thrown into doubt whether, according to the
boundary described in the recent treaty, that island would
fall within British or American jurisdiction. He thought the
British (lovernment would deeply regret the occurrence of any
difficulty in tracing the channel.
On the 3d of November George Bancroft,
Bancroft-PalmerBton ^^j^^ i,^^ become minister of the United States
rrespon ence. ^^ London, addressed to his government a
request for a traced copy, which he had caused to be made
while in the Navy Department, of Wilkes's chart of the Straits
of Haro. It had, he said, been intimated to him that ques-
. tions might arise with regard to the islands east of that strait;
and he asked authority to meet any such claim at the threshold
by the assertion of the central channel of the Straits of Haro
as the main channel intended by the treaty. He said he was
well informed that some of the islands were of value. On the
28th of December Mr. Buchanan sent him the chart in qnes
tion, and, calling attention to Mr. McLane's conversation with
Lord Aberdeen, said it was not probable that a claim *^ to any
island lying to the eastward of the Canal de Arro" would be
seriously preferred by the British Government. On the 20th
of March 1847 Mr. Bancroft reported that his attention had
again been called to the probable wishes of the Hudson's Bay
Company to get some of the islands properly belonging to the
United States. The ministry, he believed, had no such design.
' For. Rel. 1873, part 3, p. 309.
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216 INTERNATIONAL ARBITRATIONS.
but he was not so well assured that the Hudson's Bay Com-
pany was equally reasonable. On August 4, 1848, Mr. Ban-
croft wrote that the Hudson's Bay Company had been trying
to get a grant of Vancouver's Island. When he inquired from
curiosity about it, Lord Palmerston replied that it was an
affair that belonged exclusively to the colonial office; and he
then t-old Mr. Bancroft what the latter had not previously
learned, that a proposition had been made at Washington for
marking the place where the forty-ninth parallel touched the
sea, and for ascertaining the divisional line in the channel by
noting the bearings of certain objects. Mr. Bancroft observed
that on the mainland a few simple astronomical observations
were all that were requisite; that the waters of the Canal de
Haro did not require to be divided, since the navigation was
free to both parties, though of course the islands east of the
center of the channel belonged to the United States. Lord
Palmerston said he had no good chart of the Oregon waters,
and asked Mr. Bancroft to let him see the traced copy of
Wilkes's chart. Mr. BancToft sent it to him; and on the 3d of
November 1848, having obtained copies of further surveys from
the Navy Department of the United States, he communicated
them also to Lord Palmerston, with a note in which there is
the following sentence: "The surveys extend to the line of 49°,
and by combining two of the charts your Lordship will readily
trace the whole course of the channel of Haro, through the
middle of which our boundary line passes." Lord Palmerston
acknowledged the receipt of the charts on the 7th of Novem-
ber, and observed that the information contained in them
would no doubt be of great service to the commissioners who
were to be appointed under the treaty, "by assisting them in
determining where the line of boundary described in the first
article of that treaty ought to run."^
The proposal to mark the boundary to which
K kin B^**"da ^^ ^^^^^ Palmerston referred was submitted by
Mr. Crampton, British minister at Washing-
ton, to Mr. Buchanan on the 13th of January 1848. In the
letter in which the proposal was made, Mr. Crampton said
that, in regard to the water boundary, "a i)reliminary ques-
tion arises which turns upon the interpretation of the treaty
rather than upon the result of local observation and survey.''
The treaty referred to the channel which separated the
^ S. Ex. Doc. 29, 40 Cong. 2 sess. 84-85.
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THK SAN JUAN WATER BOUXDARY. 217
continent from Vanconver'a Island. Generally speaking, the
word channel, when employed in treaties, meant a deep and
navigable channel. In the present case it was, said Mr. Cramp
ton, believed that only one channel, namely, that which was
laid down by Yanconver in his chart, had in that part of the
gulf been surveyed and used, and it seemed natural to sup-
pose that the negotiators of the Oregon convention, in employ-
ing the word "channel," had that particular channel in view.
If this construction should be mutually adopted, no prelimi-
nary difficulty would exist, and it was to be wished that such
an arrangement might be agreed upon, since otherwise much
time might be wasted in surveying the various intricate
channels between Vancouver's Island and the mainland, and
some difficulty might arise ip deciding which of them ought to
be adopted for the boundary. The main channel marked in
Vancouver's chart was, indeed, said Mr. Crampton, somewhat
nearer to the continent than to Vancouver's Island, and its
adoption would leave on the British side of the line rather
more of the small islets with which that part of the gulf was
studded than would remain on the American side. But these
islands, he said, were of little or no value, and the only large
and valuable island belonging to the group, namely, Whidby's,
would of course belong to the United States. Accompanying
this letter of Mr. Crampton was a draft of instructions. In
this draft it was proposed that, as that part of the channel of
the Gulf of Georgia which lies nearly midway between the
forty-eighth and forty-ninth parallels of north latitude appeared
by Vancouver's chart to be obstructed by numerous islands,
which seemed to be separated from each other by small and
intricate channels as yet unexplored, it should mutually be
agreed that the line of boundary should be drawn along the
middle of the wide channel to the east of those islands, which
was laid down by Vancouver and marked as the channel which
was explored and used by the officers under his command.^
The negotiations were productive of no re-
^^^*di ti n* "**^ ^^^^' *^^ ^^^^ ^ period of almost ten years after
the conclusion of the treaty no effective steps
were taken by the coutniuting parties toward ascertaining the
boundary. Meanwhile, settlers were entering and occupying
the territory, and, besides the danger of collisions, the need
> 8. Ex. Doc. 29, 40 Con*?. 2 sess. 40-43.
Digitized by LjOOQIC
218 INTERNATIONAL ARBITRATIONS.
daily increased for the establishment of some recognized au-
thority. At its first session, in 1854, the legislative assembly
of Washington Territory assumed to incorporate San Juan
Island in one of the counties of the Territory.' In a letter of
July 4, 1855, Mr. Marcy, who had become Secretary of State,
instructed Governor Stevens that the officers of the Territory
should abstain from all acts on the disputed grounds which
were calculated to provoke conflicts, so far as it could be done
without imi)lying the concession of an exclusive right in Great
Britain, and on the 17th of July Mr. Marcy sent a copy of this
letter to Mr. Crampton.
On the 11th of August 1856 the President
Coxmnissloiidn for i ^ i •■ • -i i
amminff th Lixi ^PP^oved an act by which provision was made
for the appointme;it of a commissioner and a
chief astronomer and surveyor to cooperate with similar officers
to be appointed by the British Government in running a line.'
Under this act Archibald Campbell was appointed commis-
sioner and Lieut. John G. Parke chief astronomer and surveyor.
On the part of Great Britain, Gapt. James C. Prevost, li. !N^.,
was appointed commissioner and Capt. Henry Richards, R. N.,
second commissioner, whose duties, however, were those of
chief astronomer and surveyor. Mr. Campbell and Lieutenant
Parke were appointed to their respective positions on February
14, 1857. They left New York with their party on April 20,
and, proceeding by way of the Isthmus of Panama, reached
Victoria on the 22d of June. Captain Prevost had arrived at
Esquimault on the 12th of the same month. Captain Richards
did not arrive till the following autumn. The commissioners
each had a secretary, who, on the part of the United States,
was William J. Warren, and, on the part of Great Britain,
William A. G. Young.
The commissioners held their first meeting
Meeting and instruo- on the 27 til of June 1857 and exhibited their
rionen **"^"*^ instructions and powers. Mr. Campbell's in-
structions empowered him to determine and
mark the entire boundary line under the treaty of 1846. The
British commissioner's instructions were limited to the deter-
mination of the water boundary. It subsequently transi>ired
that the British commissioner had other instructions besides
those which he exhibited to Mr. Campbell on the 27th of June,
but he did not think that they enlarged his ])owers.
^S. Ex. Doc. 29, 40 Cong. 2 sess. 207.
ni Stats. atL. 42.
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Google
THE SAN JUAN WATER BOUNDARY. 219
The commissioners held six: formal meetings,
^.^^^J^^'^" ^ the last of which was on December 3, 1857,
Water Bomidary.
when they finally disagreed. The British com-
missioner proposed to refer their differences to the two govern-
ments for adjustment. Mr. Campbell declined to join in such
a reference, saying that each commissioner would of course
make a rei^ort to his own government.
While their conferences were in progress the
u ommunon- commissioners discussed their differences in a
formal correspondence, which disclosed the
points at issue and the various arguments by which each side
supported its claim — the United States to the Canal de Haro
and Great Britain to Bosario Strait. The argument of the
British commissioner was that there was but one navigable
channel between the continent and Vancouver's Island at the
forty-ninth parallel of north latitude, namely, the Gulf of
Georgia, and that in its waters would be found the initial point
of boundary. Carrying this line to the south to about 48^45',
tlie waters were studded with islands, through which it was
generally admitted that two navigable passages were to be
found. One, designated the Rosario Strait, was situated near
the continent. The other, called Canal de Arro, was found
'* nearer to Vancouver's Island." The wording of the treaty
provided that the channel forming the boundary line should
possess three characteristics: (1) It should separate the conti-
nent from Vancouver's Island; (2) it should admit of the
boundary line being carried through it in a southerly direction ;
(3) it should be a navigable channel. The British commis-
sioner admitted tliat the Canal de Haro answered to the third
requirement, though, from the rapidity and variableness of its
current and its lack of anchorages, it would, he maintained,
generally be avoided by sailing vessels, which would prefer
the Rosario Strait, which had, he said, been used by the ves-
sels of the Hudson's Bay Company since 1825. But the Canal
de Haro did not, he argued, meet the other two requirements
of the treaty. It did not {Separate the continent from Van-
couver's Island, the continent having already been separated
from that island by another navigable channel, the Rosario
Strait. Further, he argued, a line drawn through the Canal
do Haro must proceed for some distance in a westerly direc-
tion, while the treaty required that tlie line should run in a
southerly direction. He also maintained that, although there
were islands east of the Rosario Strait, yet between theni and
the continent there was no navigable channel.
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220 INTERNATIONAL ARBITRATIONS.
The argument of the AmericaD commissioner
dcmer'g Views ^^^ ' although there were several naviga-
ble channels connecting the Gulf of Georgia
with the Straits of Fuca, the Canal de Haro was preeminent in
width, depth, and volume of water, and was the one usually
designated on the maps in use at the time the treaty was under
consideration. Other navigable channels merely separated
groups of islands from each other; the Canal de Haro, since it
washed the shores of Vancouver's Island, was the only one
that separated the continent from that island. The objec-
tion that the Canal de Haro would not at some places carry
the boundary line southerly was declared to be groundless. It
was maintained that the word "southerly'' was not used in a
strict nautical sense, but as opposed to northerly, and it was
pointed out that the word " southerly " was applied in the treaty
to the Straits of Fuca as well as to the unnamed channel.
Passing from the geographical question to the intention of
the treaty, Mr. Campbell argued that it was conclusively shown
by contemporary evidence that the Canal de Haro was the
channel proposed by Great Britain and accepted by the United
States; and in this relation he referred to the report of Mr.
McLane to Mr. Buchanan, of May 18, 1846, to the submission
of this report by President Polk with the treaty to the Senate,
and to Mr. Benton's speech. The only claim, said Mr. Camp-
bell, that he had been able to iiud on the part of the British
Government that Kosario Strait was the channel was in the
note of Mr. Crampton to Mr. Buchanan, of January 13, 1848, in
which it was suggested that the channel intended by the treaty
was the nameless channel marked on the chart of Vancouver.
In making this suggestion, Mr. Crampton had observed that, as
it was believed that this channel was the only one in that part
of the gulf that had been surveyed and used, it "seemed
natural to suppose" that the negotiators, of the Oregon con-
vention, in employing tlie word "channel," had that particular
channel in view. Mr. Crampton did not attempt to assert that
the Rosario Strait was the channel intended in the treaty, or
that the "peculiar wording" of the treaty required, as the
British commissioner had contended, the adoption of that chan-
nel. Moreover, the claim that it was the only channel that had
been surveyed and used was obviously erroneous, since the
Canal de Haro had been surveyed and used by the Spanish
Government as well as by the Government of the United States.
Digitized by LjOOQIC
THE SAN JUAN WATER BOUNDARY. 221
As to the intention of tbe treaty, the British
Briti^ Ccmumnion- ^jQ^miggiQuer replied that Mr. McLane and Mr.
Benton were not the a<;tnal negotiators of the
treaty; that Mr. McLane merely said that the proposition
which he described would '^most probably" be made; that, in
reality, it was not made, and that the fact that no channel was
named in the treaty was evidence that the Canal de Haro was
not intended. To show that the Canal de Haro could not have
been the only channel considered in the United States as the
true channel at and after the making of the treaty, the British
commissioner cited a map of Oregon and Upper California
(published in the city of Washington in 1848) "drawn by
Charles Preuss, under the order of the Senate of the United
States," in which the boundary line ran through the Rosario
Strait; also "a diagram of a jwrtion of Oregon Territory," by
the surveyor general of Oregon, dated October 21, 1852, in
which the same line was laid down. The British commissioner
further said that his own opinion as to the true line had been
confirmed by his having been officially informed ''by high and
comi)etent authority" that Eosario Strait was the channel con-
templated by the British Government in the treaty. The
"authority" referred to, as was finally disclosed, was the Earl
of Clarendon, the British foreign secretary.
The American commissioner answered that
AmeriMn ominii- pp^^j^gjg „,j^p ^^s inaccurate, and was not
made with reference to the boundary ques
tion, and that while it di<l not draw the line through the Canal
de Haro, neither did it draw it through the Hosario Strait. As
to the map of the surveyor- general of Oregon, it bore no official
relation to tbe boundary question. The American commis-
sioner referred to a map jmblished by Arrowsinith in liOndon
in 1849, in which the Canal de Haro was given as the bound-
ary. The American commissioner also a<lverted to tin* fact
that the statement of the Earl of Clarendon, adduced by the
British commissioner, did not disclose the authority on which
it was based.
The British commissioner finally ofFerexl to
^^"^^"iJ^"'"" ^^^^^ *^® Gulf of Georgia as one channel, and
all the channels between the islands lying be-
tween that gulf and the Straits of Fuca as one channel, and to
make the boundary run through the middle of it, so far as
the islands would x)ermit, so as to give the island of San Juan
Digitized by LjOOQIC
222 INTERNATIONAL ARBITRATIONS.
to Great Britain and the rest of the islands to the United
States. This offer was made by the British commissioner with-
out prejudice to the right of his government to reject it. The
American commissioner refused to entertain it, being, as he
declared, unalterably convinced that the claim of the United
States to the Canal de Haro was perfect.
It has been stated that it was ascertained
Britiih Commi«tt<m- |,^ ^]^q course of the discussions between Mr.
Itelioti^^i"*^ ^ Campbell and Captain J^revost that the latter
bad instructions besides those which were ex-
hibited in the first instance to IVlr. Campbell. An extract from
his additional instructions was communicated by Lord Malmes-
bury to Mr. Dallas on February 22, 1851). In this extract it
was not asserted that the Rosario Strait was intend<^d as the
actual line of the treaty; but it was stated that a line drawn
down the middle of the Gulf of Georgia would pass just to the
eastward of the Matia group, at the head of the Rosario Strait^
and being prolonged from thence nearly due south would pass
through liosario Strait into the Strait of Juan de Fuca. It
appeared, it was said, to Her Majesty's Government that this
line was so clearly and exactly in accordance with the terms of
the treaty that it might be hoped that the British conimissioner
would have no difficulty in inducing the American commis-
sioner to acquiesce in it. If however, the instructions contin-
ued, the American commissioner would not adopt this line, the
British commissioner would be at liberty, if he should be of
opinion that the claims of Her Majesty's Government to Ko-
sario Strait could not be substantiated, to adopt any other
intermediate channel on which he and the United States com-
missioner might agree as substantially in accordance with the
description of the treaty.
After the close of their discussions the Amer-
tapy ocnpataon .^^^^ and British commissioners continued their
of San Juan Island. , . , ^ , ,
explorations and surveys of the waters and
islands involved in the dispute. In 1859 an incident occurred
of an exciting nature. The Hudson's Bay Company had an
establishment on San Juan Island ibr the purpose of raiBing
sheep, and on another part of the island there were twenty-
five American citizens, with their families. A pig belonging
to the company having been killed, one of the American citi-
zens was charged with having shot it; and a threat was made
by an officer of the company to arrest him and take him to
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THE SAN JUAN WATER BOUNDARY. 223
Victoria for trial under British law. Cliietty on the strength
of this incident General Harney, who commanded the military
forces of the United States in that quarter, on the 27th of July
assumed military occupation of the island with the declared
object of protecting the inhabitants against the incursions of
Indians and against the interference of the British authorities
in Vancouver in controversies between citizens of the United
and the Hudson's Bjiy Company. In the critical situation cre-
ated by this act, General Scott was, on the IGth of September
liS59, instructed to proceed to Washington Territory to assume
immediate command of the United States forces on thg Pacific,
and if possible to arrange for a joint occupation in the spirit
of Mr. Marcy's letter to Governor Stevens. General Scott
arrived on the scene in the latter part of October, and an
arrangement for the joint military occupation of the islands
was promptly concluded.*
During the years 1859 and 1860 the discus-
yi m egotia- ^.^^ ^^^ ^^ ^j^^ boundary was continued by Mr.
Cass and Lord Lyons, and on the 10th of De-
cember 1860 the latter, no approach to a direct agreement
having been made, proposed arbitration by the King of the
Netherlands, the King of Sweden and Norway, or the Presi-
dent of Switzerland. To this proposition no reply appears to
have been made, and for several years the discussion was dis-
continued.* In 1806 the attention of the Government of the
United States was recalled to the unsettled state of the ques-
tion by conflicts between its own civil and military authorities,
the latter being required to prevent the exercise of civil juris-
diction on the disputed islands, while the former insisted upon
exercising it and proceeded to punish those who prevented
them from doing so.
On the 14th of January 1869 Mr. Eeverdy
^ n ^ ^."" ^ Johnson and Lord Clarendon concluded a con-
Convention. . /. , , . . « , ,
vention for the submission of the boundary
question to the arbitration of the President of the Swiss Con-
federation. It authorized the arbitrator to determine the line
intended by the treaty of 1846, and, if he should be unable to
do so, to determine upon some line which, in his opinion, would
^A characteristic and amusing account of this incident may be found in
tlie Memoirs of Lieutenant-General Scott, LL.D., Written by Himself, II,
604-606.
' $. Ex. Doc. 29, 40 Cong. 2 sess. 5, 265,
Digitized by LjOOQIC
224 INTERNATIONAL ARBITRATIONS.
furnish ail equitable solution of the diflBculty and be the near-
est approximation that could be made to an accurate construc-
tion of the words by which the line was described.* This
convention was submitted to the Senate, but no vote on it was
taken. It was understood that it was not favorably regarded
by the Senate; and the period prescribed for its ratification
was i)ermitted to expire.^
When the Joint High Commission between
J«iiit High Commis- ^^^^ Uuited States and Great Britain met in
uon, 1871.
Washington in 1871, the subject of the north-
western boundary came before it as one of the unsettled ques-
tions which affected " the relations of the United States towards
Her Majesty's possessions, in Xorth America."^
On the loth of March the British commis-
Preliminarv Discus- «. xi • • ^^ j^»
. ^ sioners, in pursuance ot their instructions,
proposed that an arbitration of the question
should be effected on the basis of the Johnson-Clarendon con-
vention. This proposal the American commissioners declined,
at the same time expressing a wish that an effort should be
made to settle the question in the Joint High Commission.
The British commissioners assented to this, and set forth the
reasons which induced them to regard Eosario Strait as the
channel described in the treaty of 1846. The American com-
missioners replied, presenting the reasons which induced them
to regard the Canal de Haro as the true channel; and they
also produced in support of their views some originjil corre-
spondence of Mr. Edward Everett, to which no allusion had
been made in previous discussions of the question.
By this correspondence it appeared that Mr.
New Evidence. Everett, during his mission to England, from
1842 to 1845, frequently discussed the north-
western boundary with Lord Aberdeen on the basis of the
forty-ninth parallel, with such a deflection as to give all of Van-
couver's Island to Great Britain. It also appeared that during
the controversy preceding the conclusion of the treaty of 1840,
Mr. William Sturgis, of Boston, was in confidential correspond-
ence with Mr. Bancroft, his relative, then of President Polk's
Cabinet, and also with Mr. Joshua Bates, ot* London, a mem-
ber of the house of the Barings. In January 1845 Mr. Stur-
gis delivered a lecture on the Oregon question, the substance
1 Dip. Cor. ]86«, part 1, pp.400, 404.
' For. Kel. 1873. part 3, pp. 376, 405.
3 For. Kel. 1873, part 3, pp. 383-386.
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THE SAN JUAN WATER BOUNDARY. 225
of which was published in a pamphlets This pamphlet and
Mr. Sturgis's letters were communicated by Mr. Bates to Lord
Aberdeen, and Mr. Bates stated in one of his letters to Mr.
Stargis that Lord Aberdeen had informed him that he con-
sidered the pamphlet a fair, practicable, and sensible view
of the sabject, and that it had been read by all the ministers.
Mr. Everett, in a confidential dispatch to Mr. Calhoun of April
2, 1845, stated that " a person very high in the confidence of
the government, but not belonging to it," had informed him
that he considered Mr. Sturgis's view of the Oregon question
as fair and candid. In his pamphlet Mr. Sturgis took the
ground that both parties would attain their object in securing
a just result <'by adopting as the boundary a continuation of
the parallel of 49° across the Eocky Mountains to tide-water,
say to the middle of the 'Gulf of Georgia'; thence by the
northernmost navigable passage (not north of 49°) to the
Straits of Juan de Fuca, and down the middle of these Straits
to the Pacific Ocean 5 the navigation of the Gulf of Georgia,
and the Straits of Juan de Fuca to be forever free to both par-
ties, all the islands and other territory lying south and east of
this line to behmg to the United States, and all north and west
to Great Britain. By this arrangement," continued Mr. Stur-
gis, '* we should jield to Great Britain the i)ortion of Quadra
and Vancouver's Island that lies south of latitude of 49°,
which, in a territorial point of view, is of too little importance
to deserve a moment's consideration; and both parties would
secure for a considerable extent a well defined natural bound-
ary, about which there could hereafter be no doubt or dis-
put-e. Will Great Britain accede to this! I think she will."
In a letter to Mr. Archibald Campbell of May 29, 1858, Mr.
Everett, referring to the pam|)hlet and correspondence of
Mr. Sturgis, observed that as the ''radical principle" of the
boundary was the forty-ninth degree of latitude, and tlie only^
reason for departing from it was to give the whole of Van-
couver's Island to the party acquiring the largest pnrt of it,
"the deflection from the 49th degree southward should be
limited to that object, and the nearest channel adopted which
fulfills the above conditions."^
'The Oregon Qnestion: Sabstauce of a Lecture before the Mercantile
Library Association, Delivered January 22, 1845, by William Sturgis. Bok-
ton: Jordan, Swift & Wiley, 1845.
«S. Ex. Doc. 29, 40 Cong. 2 sens. 50-51; Papers relating to the Treaty of
Washington, V. 27-38.
5627 15
Digitized by LjOOQIC
i
226 INTERNATIONAL ARBITRATIONS.
The British commissioners found in theoorre-
^^tor^powdB"' spondence of Mr. Everett nothing to induce
them to change the opinion which they had
previously expressed, and they asked whether the American
commissioners had any further proposal to make. The Amer-
ican commissioners proposed to abrogate that part of the treaty
of 1846 which was in dispute and rearrange the boundaiy line.
This proposal the British commissioners at a subsequent con-
ference declined^ and on the 19th of April they offered to adopt
the middle channel — generally known as the Douglas Channel —
as that through which the boundary line should run, with the
understanding that all the channels through the archipelago
shguld be free and common to both parties. The American
commissioners declined this offer and proposed the Haro Chan-
nel, with a mutual agreement that no fortifications should be
erected by either party to obstruct or command it, and with
proper provisions as to any existing proprietary rights of Brit-
ish subjects in the island of San Juan. The British commis-
sioners replied that, convinced of the justice of their view of the
treaty, they could not abandon it except after a fair decision by
an impartial arbitrator. They therefore renewed their proiK)sal
of arbitration. The American commissioners replied that as
their last proposition, which they had hoped would be accepted,
had been declined, they would, should the other questions be-
tween the two governments be satisfactorily adjusted, agree to
a reference to arbitration to determine whether the line should
run through the Haro Channel or through the Bosario Strait,
upon condition that either government should have the right
to include in the evidence to be considered by the arbitrator
such documents, official corresjwiidence, and other official or
public statements bearing on the subject of reference as it might
consider necessary to the support of its case. To this condition
the British commissioners agreed ; but they proposed that the
arbitrator should have the right to draw the boundary through
anintermediatechannel. TheAmerican commissioners declined
this proposal, stating that they desired a decision, not a com-
promise. They also declined a proposal of the British commis-
sioners to declare the proper construction of the treaty of 1846
to be that all the channels were to be open to navigation by both
parties. They said that they did not so construe the treaty,
and therefore could not assent to such a declaration. This dis-
cussion continued till the 22d of April, when Articles XXXIV.
to XLII. of the treaty, for the arbitration of the controversy,
were agreed to.
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THE SAN JUAN WATEK BOUNDARY. 227
By these articles it was provided that the
^^T"!®!™"^ respective claims of the United States and
as Arbitrator.
Great Britain to the Canal de Haro and the
Uosario Straits should be submitted to the ^^arbitration and
award of His Majesty the Emperor of Germany," who should
decide, '' finally and without appeal, which of those claims is
most in accordance with the true interpretation of the Treaty
of June 15, 1846." It was also providetl that each party should
submit to the arbitrator a written or printed statement, and
that each should have the right to reply to the statement of
the other. The arbitrator was authorized to proceed in the
arbitration either in person or by a person or persons named
by him for that purpose.
The negotiations which resulted in the conclusion of this
agreement of arbitration justified, as may be surmised by the
foregoing summary of them, the contentious and almost tur-
bulent history of the subject. The difficulty in effecting a
settlement was enhanced by reports as to the strategic impor-
tance, from a military point of view, of the possession of San
Juan Island. In reality, this question of the water boundary
constituted one of the most troublesome of all the subjects
with which the Joint High Commission was required to deal,
and perhaps came nearer than any other to precipitating an
unsuccessful termination of its labors.^
For the conduct of its case before the arbi-
Ameriean Agent, trator the Government of the United States
chose as its representative George Bancroft,
who, by his historical studies, as well as by his practical famil-
iarity with the subject, which he gained as a member of the
cabinet of Polk and as minister of the United States in Lon-
don, was preeminently fitted for the task. When the case of
the United States was committed to his charge he was minister
at Berlin, a post in which he had already rendered illustrious
' Karl de Grey in the House of Lords, June 12, 1872, in defending the
Treaty of Washington, said that Earl Derby adopted an easy mode of
criticising the treaty in respect of qnestions which he did not desire to
disciiKS by merely dec hiring that they were of no importance and that they
could be settled with the utmoHt facility. "My noble friend," said Earl
de Grey, "took as an instance the caHe of the island of San Juan; but so
far from that question being settled with the utmost facility, it was one
of tliose which caused us the greatest troul)le. The United Stati'H com-
missioners raised great difKciilties on the subject, and we were obliged to
insist strongly upon the views of Her Majesty's Government with respect
to it." (Hansard, CCVI. 1865.)
Digitized by LjOOQIC
228 INTERNATIONAI. ARBITRATIONS.
services and which he continued to hold till his resignation of
it in 1874. "The treaty of which the interpretation is referred
to Your Majesty's arbitrament," said Mr. Bancroft in his memo-
rial to the arbitrator, *^ was ratified more than a quarter of a
century ago. Of the sixteen members of the British cabinet
which framed and presented it for the acceptance of the United
States, Sir Eobert Peel, Lord Aberdeen, and all the rest but
one, are no more. The British minister at Washington who
sigued it, is dead. Of American statesmen concerned in it, the
minister at Loudon, the President and Vice-President, the Secre-
tary of State, and every one of the President's constitutional
advisers, except one, have passed away. I alone remaiu, and
after finishing the three score years and ten that are the days
of our years, am selected by my country to uphold its rights.
Six times the United States had received the offer of arbitra-
tion on their northwestern boundary, and six times had refused
to refer a point where the importance was so great and the
right so clear. But, when consent was obtained to bring the
question before Your Majesty, my country resolved to change
its policy, and in the heart of Europe, before a tribunal from
which no judgment but a just one can emanate, to explain the
solid foundation of our demand, and the principles of modera-
tion and justice by which we have been governed. The case
involves question of geography, of history, and of international
law ; and we are glad that the discussion should be held in the
midst of a nation whose sons have been trained in those sci-
ences by a Carl Ritter, a Rauke, and a Hefl'ter."
The representative of Great Britain before
British Agent, the arbitrator was Admiral James 0. Prevost.
His connection with the subject related back
to the year 1856, when, a captain in the royal navy, he went
to the northwest coast as British commissioner to cooperate
with the commissioner of the United States in the demarca-
tion of the boundary. His knowledge of the controversy was
comprehensive and thorough, and, like that of Mr. Bancroft,
was enlivened by participation in the making of its history.
On the 29th of July 1871 Mr. Bancroft and
Preeentation of ^he British charge d'affaires at Berlin delivered
"^' at the foreign office formal notes, identical in
terms, addressed to Prince Bismarck, chancellor of the iSmpire,
requesting the Emperor to accept the oifice of arbitrator. On
the 1st of the following September Mr. Von Thile, the German
Digitized by LjOOQIC
TH15 SAK JUATT WATER BOUNDARY. 229
secretary of state, formally replied, eoDveyinj^ the Emperor's
acceptance. The American case, or memorial, was delivered
at the foreign office on the 12th of December, and the British
case on the 15th. The second and definitive statement of Great
Britain was presented in the same manner on the 10th of the
following June, and that of the United States on the 11th.'
In such hands as those of Mr. Bancroft and
* ™^ ' Admiral Prevost, it is needless to say that
nothing was lacking in the presentation of the
claims of either government. The first and final statements of
both governments, in which the arguments advanced in the
prior discussions were elaborated and supi)orted with great
ability, were, together with the accompanying evidence, refer-
red by the Emperor to three experts, Dr. Grimm, vice-president
of the supreme court at Berlin; Dr. Kiepert, the eminent pupil
of Carl Eitter; jind Dr. Goldschmidt, a member of the supreme
commercial court at Leipsic, each of whom made a report.
On the 21st of October 1872 the Emperor rendered an award,
holding that the claim of the United States that the boundary
should be drawn through the Ilaro Channel was ''most in ac-
cordance with the true interpretations" of the treaty of 1846.
The text of the award, in German and in English, is as follows:
Wir Wilhelm von Gottes Gnaden, Deutscher Kaiser, Konig
von Preussen, &c., &c., &c.
]S'ach Einsicht des zwischen den Regierungen Ihrer Briti-
schen Majestat und der Vereinigten Staaten von Amerika
geschlossenen Vertrages de dato Washington den Gten Mai,^
1871, Inhalts dessen die gedachten Regierungen die unter
ihnen streitige Frage: ob die Grenzlinie, welche nacli dem
Vertrage de dato Washington den loten Juni, 1846, nachdem
sie gegen Westen langs des 49ten Grades Ncirdlicher Breite
bis zur Mitte des Kanals, welcher das Festland von der Van-
couver Insel trennt, gezogeu worden, siidlich durch die Mitte
des gedachten Kanals und der Fuca Meerenge bis zum Stillen
Ocean gezogen werden soil, durch den Rosario-Kanal, wie
die liegierung Ihrer Britischen Majestiit beansprucht, oder
durch den Haro-Kanal, wie die Regierung der Vereinigten
Staaten beansprucht, zu ziehen sei, Unserem Schiedsspruche
unterbreitet haben, darait Wir endgiiltig und ohne Berufung
entscheiden, welcher dieser Anspriichemit derrichtigen Ausle-
gung des Vertrages vom 15ten Juni, 1846, am meisten im
Einklange stehe;
' Papers relating to thf Treaty of Washington, Y. 255-263.
'^ So in the original ; the correct date is May 8.
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230 INTERNATIONAL ARRITRATIONS.
Nach Anhorungdes Tins von den durch IJiis berufenen Sach-
iind Rechtekundigea iiber den Inhalt der gewechselten Denk-
schriften iind deren Anlagen eratatteten Vortrages,
Habeu den nachstehenden Scbiedsspruch genillt —
Mit der ricbtigen Auslegung des zwiscbeii den Kegierungen
Ibrer Britiscben Majestiit und der Vereinigten Staaten von
Amerika geschlossenen Yertrages de dato Wasbingfon den
15ten Juni, 1846, stobt der An8j)rucb der Regieruiig der Verei-
nigten Staaten am meisten im Einklnnge, dass die Grenzlinie
zwiscben den Gebieten Ibrer Britiscben Mjyeafiit und den
Vereinigten Staaten diircb den Haro Kanal gezogen: werde.
Urkundlieli uiiter IJiiserer Hocbsteigenbtindigen Unter-
scbrift und beigedrucktem Kaiserbcben Insiegel.
Gegebeu Berlin den 2 1 ten October, 1872.
[l. s.] Wilhelm.
[Translation.]
We, William, by the grace of God, German Emperor, King of
Prussia, &c., &c., &c.
After examination of tbe treaty concluded at Washington
on the 6tb of May, 1871, between tbe Governments of Her
Britannic Majesty and of tbe United States of America, ac-
cording to which tbe said Governments have submitted to our
arbitrament tbe question at issue between them, whether the
boundary lino which, according to the Treaty of Washington
of June 15, 1846, after being cfirried westward along tbe forty-
ninth parallel of northern latitude to the middle of the chan-
nel which separates tlie continent from Vancouver's Island, is
thence to be drawn southerly through the middle of the said
channel and of the Fura Straits to the Pacific Ocean, should
be drawn through the Rosario Channel as the (rovernmeiit of
Her Brijtannic Majesty claims, or through the Haro Channel
as the Government of the ITnitM States claims; to the end
that we may finally and without appeal decide which of these
claims is most i'U accordance with the true interpretation of
the treaty of June 14, 1846.
After hearing the report made to us by tbe experts and jurists
summoned by us upon the contents of tbe interchanged memo-
rials and their appendices —
Have decreed the following award:
Most in accordance with the true inter])retations of the treaty
concluded on the 15tb of June, 1<S46, between the Governments
of Her Britannic Majesty and of the United States of America,
is the claim of the Government of the Upited States that the
boundary-line between the territories of Her Britanni(5 Maj-
esty and the United States should be drawn tbrougb the Haro
Channel.
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Digitized by LjOOQIC
Digitized by V^OOQlC
THE SAN JUAN WATER BOUNDARY. 231
Authenticated by our (autographic signature and the impres-
sion of the imperial great seal.
Given at Berlin, October the 2l8t, 1872.
[L. S.J William.
"The award," said Mr. Bancroft, "was a
Aooeptanee of grievous disappointment to Admiral Prevost.
Award. » # # Up to the last moment he confidently
expex?ted a decision in his favor." * The British Government
was subsequently criticised in the House of Commons for hav-
ing agreed to limit the arbitration to the Eosario and Haro
channels, instead of leaving it open to the arbitrator to take an
intermediate channel. ^ But the award was promptly and fully
accepted, and both parties in the usual manner expressed their
thanks to the imperial arbitrator. The British Government,
on receiving a copy of the award, spontaneously directed the
withdrawal of the detachment of royal marines from San Juan
Island, and brought the joint occupation to an end.'
On the 10th of March 1873 a protocol was
Deflmtion of Water gigged at Washington by Hamilton Fish, Sec-
Boundary, retary of State, on the part of the United
States, and by Sir Edward Thornton, British minister to the
United States, and Admiral Prevost, boundary commissioner,
on the part of Great Britain, by which the San Juan water
boundary was ultimately fixed and determined. By this pro-
tocol the line was fully defined ; and it was also traced out and
marked on four identical charts, which were duly signed, and
of which two were retained by each government. A reproduc-
tion of this chart was printed, together with the protocol, in
the first volume of the Foreign Belations of the United States
for 1873. The protocol is as follows :
^'-Protocol of a conference at Washington^ March 10^ 1873 j respect-
ing the northwest water-boundary,
"Whereas it was provided by the first article of the treaty
between the United States of America and Great Britain,
signed at Washington on the 15th day of June, 1846, as follows :
"* Article I.
"'From the point on the forty-ninth parallel of north lati-
tude, where the boundary laid down in existing treaties and
conventions between the United States and Great Britain
» Papers relating to the Treaty of Washington, V. 268.
«For. Rel. 1873, I. ^57 ct seq.
3 Papers relating to the Treaty of Washington, V. 270-271.
Digitized by VjOOQ IC
232 IIJTERKATIONAL ARUITRATIONS.
terminates, the line of boundary between the territories of the
United States and those of Her Britannic Majesty shall be
continued westward along the said forty-ninth ])arallel of north
latitude, to the middle of the channel which separates the con-
tinent from Vancouver's Island ; and thence southerly, through
the middle of the said channel, and of Fuca Straits, to the
Pacific Ocean: Provided, however, Tliat the navigation of the
whole of the said channel, aud straits south of the forty-ninth
parallel of north latitude remain free aud open to both parties.'
"And whereas it was provided by the XXXlVth Article of
the treaty between the Qnited States of America and Great
Britain, signed at Washington on the 8th of May, 1871, as
follows:
"'Article XXXIV.
"'Whereas it was stipulated by Article I of the treaty con-
cluded at Washington on the 15th of June, 1846, between the
United States and Her Britannic Majesty, that the line of
boundary between the territories of the United States' and
those of Her Britannic Majesty, from the point on the 49th
parallel of north latitude up to which it had already been
ascertained, should be continued westward along the said
parallel of north latitude to the middle of the channel which
separates the continent from Vancouver's Island, and thence
southerly, through the middle of the said channel and of Fuca
Straits, to the I'acific Ocean; and whereas the commissioners
appointed by the two high contracting parties to determine
that portion of the boundary which runs southerly through
the middle of the channel aforesaid were unable to agree upon
the same; and whereas the Government of Her Britannic
Majesty claims that such boundary-line should, under the
terms of the treaty above recited, be run through the Rosario
Straits, and the Government of the United States claims that
it should be run through the Canal de Haro, it is agreed that
the respective claims of the Government of the United States
and of the Government of Her Britannic Majesty shall be
submitted to the arbitration and award of His Majesty the
Emperor (jf Germany, who, having regard to the above-men-
tioned article of the said treaty, shall decide thereupon, finally
and without appeal, which of those claims is most in accord-
ance with the true interpretation of the treaty of June 15,
1846.'
"And whereas, His Majesty the Emperor of Germany, has, by
his award. dated the 21st of October, 1872, decided that * Mit
der richtigen Auslegung des zwischen den Eegierungeu Ihrer
Britischeu Majestiitund der Vereinigten Staaten von Amerika
ges(;hlossenen Vertrages de dato Washington den 15 Juni,
1846, steht der Auspruch der Regieruug der Vereinigten
Staaten am meisten im Einklauge, dass die Greuzlinie zwischen
Digitized by LjOOQIC
THE SAN .TUAN WATER BOUNDARY. 233
den Gebieten Ibrer Britischei) Majestiit iiud den Vereinigteii
Staaten durch den Haro-Kanal gezogen werde.'
"The undersigned, Hamilton Fish, Secretary of State of the
United States, and the Right Honorable Sir Edward Thornton,
one of Her Majesty's Most Honorable Privy Council, Knight
Commander of the Most Honorable Order of the Bath, Her
Britannic Majesty's Envoy Extraordinary and Minister Pleni-
potentiary to the United States of America, and Eear- Admiral
James Charles Prevost, Commissioner of Her Britannic Majesty
in respect of the boundary aforesaid, duly authorized by their
respective Governments to trace out and mark on charts pre-
pared for that purpose, the line of boundary in conformity with
the award of His Majesty, the Emperor of Germany,and to com-
plete the determination of so much of the boundary-line between
the territory of the United States and the possessions of Great
Britain as was left uncompleted by the commissioners hereto-
fore appointed to carry into efifect the first article of the treaty
of 15th June, 1846, have met together at Washington, and have
traced out and marked the said boundary-line on four charts,
severally entitled, * North America, West Coast, Strait of Juan
de Fuca, and the channels between thecontinent and Vancouver
Id, showing the boundary line between British and American
possessions, from the admiralty surveys by Captains H. Kel-
lett, R. K, 1847, and G. H. Bichards, B. N., 1858-1862;' and
and having on examination agreed that the lines so traced out
and marked on the respective charts are identical, they have
severally signed the said charts on behalf of their respective
Governments, two copies thereof to be retained by the Govern-
ment of the United States, and two copies thereof to be
retained by the Government of Her Britannic Majesty, to serve,
with the 'definition of the boundary-line,' attached hereto,
showing the general bearings of the line of boundary as Ipjd
down on the charts, as a i>erpetual record of agreement between
the two Governments in the matter of the line of boundary be-
tween their respective dominions under the first article of the
treaty concluded at Washington on the 15th of June, 1846.
" In witness whereof, the undersigned have signed this i)roto-
col, and have hereunto afiixed their seals.
" Done in duplicate at Washington, this tenth day of March,
in the year 1873.
"Hamilton Fish.
"Edwd. Thornton.
"James C. Peevost."
^^Definition of the boundary -line.
SEAL.
SEAL.
SEAL.
" The chart upon which the boundary-line between the British
and the United States possessions is laid down is entitled
^ North America, West Coast, Strait of Juan de Fuca, and the
channels between the continent and Vancouver Id, showing the
Digitized by LjOOQIC
234 INTERNATIONAL ARBITRATIONS.
boundary-line between British and American possessions, from
the admiralty surveys by Captains H. Kellett, li. N., 1847, and
G. H. Richards, E. N., 1858-1862.'
"The boundary-line thus laid down on the chart is a black
line shaded red on the side of the British possessions, and blue
on the side of the possessions of the United States.
" The boundary-line thus defined commences at the point on
the 49th paralled of north latitude on the west side of Point
Roberts, which is marked by a stone monument, and the line
is continued aloni? the said parallel to the middle of the chan-
nel which separates the continent from Vancouver Island, that
is to say, to a point in longitude 123^ 19' 15" W., as shown in
the said chart. It then proceeds in a direction about S. 50^ E.
(true) for about fifteen geographical miles, when it curves to
the southward, passing equidistant between the west point of
Patos Island and the east point of Saturna Island, until the
point midway on a line drawn between Turnpoint, on Stewart
Island, and Fairfax Point, on Moresby Island, bears S. 68^ W.,
(true) distant ten miles; then on a course S. 78° W., (true) ten
miles to the said point midway between Turnpoint, on Stewart
Island, and Fairfax Point, on Moresby Island, thence on a
course about S. 12^ 30' E. (true) for about eight and three-quar-
ter miles to a point due east, one mile from the northernmost
Kelp Reef, which reef on the said chart is laid down a« in lati-
tude 480 33' north, and iu longitude 123° 15' west; then its
direction continues about S. 20^ 15' E., (true,) six and one-
eighth miles to a point midway between Sea Bird Point, on
Discovery Island, and Pile Point, on San Juan Island; thence
in a straight line S. 45° E., (true,) until it touches the north
end of the middle bank in between 13 and 18th fathoms of
water; from this point the line takes a general S. 28^ 30' W.
direction (true) for about ten miles, when it reaches the centre
of the fairway of the Strait of Juan de Fuca, which, by the
chart, is in the latitude of 48° 17' north and longitude 123^
14' 40" W.
" Thence the line runs in a direction S. 73^ W. (true) for twelve
miles, to a point on a straight line drawn from the lighthouse
on Race Island to Angelos Point, midway between the same.
" Thence the line runs through the centre of the Strait of Juan
de Fuca,^r«/, in a direction N. 80o 30' W., about 5f miles to
a point equidistant on a straight line between Beechey Head,
on Vaucxmver Island, and Tongue l^oint, on the shore of Wash-
ington Territory; second, in a direction N. 76° W., about 13 J
miles to a point equidistant in a straight line between Sher-
ringham Point, on Vancouver Island, and Pillar Point on the
shore of Washington Territory; third, in a direction N. 68o W.,
about 30| miles to the Pacific Ocean, at a point equidistant
between Bonilla Point, on Vancouver Island, and Tatooch Is-
land light-house on the American shore, the line between the
I)oints being nearly due north and south, (true,)
Digitized by LjOOQIC
THE SAN JUAN WATER BOUNDARY. 235
"The courses and distances as given in the foregoing descrip-
tion are not assumed to be perfectly accurate, but are as nearly
so as is supposed to be necessary to a practical definition of
the line laid down on the chart and intended to be the bound-
ary-line.
"Hamilton Fish.
" Edwd. Thornton.
" James G. Peevost."
In his annual message of December 2, 1872,
other BonndaTies. President Grant, referring to the award of the
Emperor of Germany, said: "This award con-
firms the United States in their claim to the important
archipelago of islands lying between the continent and Van-
couver's Island, ♦ ♦ • and leaves us, for the first time
in the history of the United States as a nation, without a
question of disputed boundary between our territory and
the possessions of Great Britain on this continent."^ When
this statement was made, the question which has since arisen
as to the boundary between Alaska and the British posses-
sions, from the southernmost point of the Prince of Wales
Island, in north latitude 54^ 40', to the fifty-sixth degree of
north latitude, under the treaty between Great Britain and
Russia of 1825, had not been raised. Moreover, the boundary
between the United States and the British possessions from
the northwest angle of the Lake of the Woods to the summit
of the Bocky Mountains, though it was clearly defined in the
second article of the treaty of October 20, 1818, had not been
r*urveyed and adjusted. By an act of Congress of March 19,
1872, entitled " An act authorizing the survey and marking
of the boundary between the territory of the United States
and the possessions of Great Britain from the Lake of the
Woods to the summit of the Rocky Mountains,'' the President
I Aannal Message, December 2, 1872. The disagreement of the commis-
sioners in 1857 as to the San Jnan wat«r boundary did not prevent the
running of the line under the treaty of 1846 from the Rocky Mountains to
the Gulf of Georgia. This line wns surveyed and marked by commission-
er!* prior to 1870. On February 24 in that year Mr. Fish, Secretary of
State, and Mr. Thornton, BritiHh minister, signed a protocol declaring
that seven maps, certified and authenticated under the signatures of
Archibald Campbell, Esquire, the commissioner of the United States, and
Col. John SummerBeld Haw^kins, Her Britannic Majesty\s commissioner,
and on which the boundary in question was traced, were approved, agrevd
to, and adopted by both governments. (Treaties and conventions of the
United States, 1776-1887, p. 440. )
Digitized by LjOOQIC
236 INTERNATIONAL ARBITRATIONS.
was authorized to cooperate with the Grovernment of Great
Britain in the appointment of a joint commission to determine
the boundary between these points. On the part of the United
States, Archibald Campbell was appointed commissioner; on
the part of Great Britain, Maj. D. E. Cameron ; and engineeer
officers were detailed for the performance of the work. The
labors of the commission were concluded in 1876. The final
records and maps were signed in London on the 29th of May
in that year, and a protocol wajs drawn up and signed setting
forth the commission's final proceedings. ''At the time of the
passage of the act of 1872 the boundary • • • from the
Atlantic to the northwest angle of the Lake of the Woods,
and the land line • • • from the summit of the Rocky
Mountains to the Georgian Bay'' had "been surveyed and
adjusted." *
» Report of Mr. Fish, Sec. of State, Feb. 23, 1877, S. Ex. Doc. 41, 44 Coog.
2 sesB. The statement that the line from the Atlantic to the northwest
angle of the Lake of the Woods had been ''surveyed and adjusted" was
not entirely accurate. Of the line from the Pigeon River to the Lake of
the Woods there has been no joint survey. (H. Report 1310, 54 Cong.
1 BOSS.) ''The Canadian government has not waited for a joint survey to
inform itself concerning the actual condition of the boundary, but it has
quietly sent out a party of surveyors at its own expense to trace the line
from Pigeon Point to the Lake of the Woods. The work was ordered by
the commissioner on international boundaries, and is in charge of A. J.
Brabazon, for the past three years engaged on the Alaskan boundary sur-
vey, who is now on the way to Ottawa to report. He is satistied that the
Treaty of Washington is in agreement with the physical features." (State-
ment of July 27, 1896. See Minnesota's Northern Boundary, by Alexander
N. Winchell, Minnesota Historical Society CoUeotious, Vol. Vlli. part 2,
p. 212.)
Digitized by LjOOQIC
CHAPTER Till.
CLAIMS OF THE HUDSON'S BAY AND PUGET'S
SOUND AGEIOULTURAL COMPANIES: COMMIS-
SION UNDER THE TREATY OF JULY 1, 18G3.
In tbe treaty of June 15, 1846, the history
ci **^ta * ^^ which has just been narrated, certain stipu-
lations were inserted for the protecrtion of the
Hudson's Bay Company and the Puget's Sound Agricultural
Company, two British organizations, whose interests the divi-
sion of the Oregon territory between two iude])endent powers
necessarily affected. The Hudson's Bay Company had large
possessions in the territory, and exercised important powers of
government. It possessed, under its charter, the power to
make ordinances for the government of the persons employed
by it, and also power to exercise jurisdiction in all matters,
civil and criminal. It obtained a grant in 1838, for a period of
twenty-one years, of an exclusive license to trade with the In-
dians in all such parts of North America north and west of the
territories of the United States as should not belong to the
British provinces in North America or to a foreign power, sub-
ject to the proviso that nothing in the grant should be con-
strued to authorize the company "to claim or exercise any
trade with the Indians on the northwest coast of America to the
westward of the Stony Mountains, to the prejudice or exclusion
of any of the subjects of any foreign States who, under or by
force of any convention for the time being between us and such
foreign States respectively, may be entitled to and shall be
engaged in the said trade." The Puget's Sound Agricultural
Company, which was an accessory organization formed for the
purpose of conducting agricultural operations, was organized
in December 1840 under the protection and auspices of the
Hudson's Bay Company.
Within that part of the Oregon territory
The Companies' ^^^.^j^ ^^^^ ^ ^^^ United States by the treaty
of 1846, the Hudson's Bay Company then
had thirteen establishments, the chief of which was Fort
237
Digitized by LjOOQIC
238 INTERNATIONAL ARBITRATIONS.
Vancouver, a fortified settlement, with tbe governor's house
and various other buildings. Besides this there were, in what
became the Territory of Washington, establishments at Cape
Disappointment, Chinook Point, Caweeman, Fort Colville, Flat
Heads, Kootenais, and Okauagan; and, in what became the
Territory of Oregon, at Fort Umpqua, Champooeg, Walla
Walla, Fort Hall, and Fort Boisee. The Puget's Sound Agri-
cultural Company had two establishments in Washington
Territory, Nisqually and the Cowlitz farms.
For the ])ratection of the interests of these
Treaty of 1846. companies three articles — those numbered II.,
III., and IV. — were inserted in the treaty of
1846. By Article II. it was provided that the navigation of
the great northern branch of the Columbia River, where it lies
within the United States, down to its entrance into the main
stream of the Columbia, and of the latter to the ocean, should
be free and open to the Hudson's Bay Company and to nW
British subjects trading with it, and that such subjects should,
with their goods and produce, be treated on the same footing
as citizens of the United States.
By Article III. it was provided that **in the future appropri-
ation of the territory south of the forty-ninth parallel of north
latitude, as provided in the first article of this treaty, the pos-
sessory rights of the Hudson's Bay Company, and of all British
subjects who may be already in the occupation of land or other
proi)erty lawfully acquired within the said territory, shall be
respected." With respect to the words " future appropriation
of the territory, * • • as provided in the first article of the
treaty," it should be observed that the first article merely pro-
vided for the drawing of the boundary line along the forty-
ninth parallel to the sea.
By Article IV. it was ])rovided that the ** farms, lands, and
other property of every description belonging to the Puget's
Sound Agricultural Company, on the north side of the Colum-
bia River, shall be confirmed to the said company," but that
in case '^ the situation of those farms and lands should be con-
sidered by the United States to be of public and political im-
portance, and the United States Government should signify a
desire to obtain ])ossession of the whole, or of any part there-
of, the property so required shall be transferred to the said
Government at a proper valuation, to be agreed upon between
the parties."
Digitized by LjOOQIC
Hudson's bay company claims. 239
Soon after the couclusioii of the treaty botli
"^1^ tfl °"^" ^^^^''^P^'^i^s began to complain of the iuvasion
of their rights and the destruction of their
property by settlers, and of the failure of the United States
to protect them in the rights and privileges which had been
guaranteed to them. They maintained that the ordinary resort
to the courts, to Avhich they were recommended, was insuffi-
cient, and that special measures should be adox)ted for their
protection.
Meanwhile, they offered to dispose of their
^tedStotoB*^ interests to the United States. They offered
to '^dispose of all their lands, buildings, live
stock, and other property of every description, together with
any rights or privileges attached thereto." In the estimate of
its " possessory rights " the Hudson's Bay Company included
" the right to cultivate the soil, to cut down and export timber,
to carry on the fisheries, to trade for furs with the natives,'' and
generally all other rights enjoyed at the time of the conclusion
of the treaty. Negotiations were begun with Mr. Buchanan,
as Secretary of State, in 1848, and were continued with his
successor, Mr. Clayton, in 1849, and with Mr. Webster in
1830,^ but without definite result. But as time wore on and
the country became more populous the difficulties of the com-
panies increased,* and at length provision was made for the ad-
justment of the whole subject.
A treaty " for the final settlement of the
^"^^ tion^"^" ^^^""® ^^ *^^ Hudson's Bay and Puget's Sound
Agricultural Conii)anies" was concluded by
Mr. Seward and Lord Lyons at Washington on the 1st of
July 1863. By this treaty it was recited that " by the 3d and
4th articles" of the treaty of 1846 certain rights (which were
described in the language of those articles) were guaranteed to
the companies, and that it was desirable that all questions be-
tween the United States and the companies with respect to the
" possessory rights and claims " of the latter should " be settled
by the transfer of those rights and claims to the Government of
the United States for an adequate money consideration." And
to this end it was agreed that the two governments should,
within twelve months after the ratification of the treaty, each
api^oint a commissioner *' for the purpose of examining and
' S. Ex. Doc. 20, 31 Cong. 2 sess.
«S. Ex. Doc. 37, 33 Cong. 2 seas.
Digitized by LjOOQIC
240 INTERNATIONAL ARBITRATIONS.
deciding ui)oii all claims arising out of the provisions of the
above-quoted articles of the treaty of June 15, 1846." The
commissioners were, at the earliest convenient period after
they were named, to meet in Washington and make and sub-
scribe a solemn declaration, and then to proceed to the selec-
tion of an umpire. If the commissioners could not agree in this
matter, the two governments were to invite the King of Italy
to make the selection, and the person so chosen was to make
and subscribe a solemn declaration in the same form as that
prescribed for the commissioners. Provisions were also made
in regard to procedure, the appointment of clerks, and the
X)ayment of all sums of money which might be awarded.
On the part of the United States the post
Ameri<»n Commis- ^f commissioner was offered to Daniel 8. Dick-
■^**^*'' inson, of New York, but he declined iV The
appointment was then conferred on Alexander S. Johnson, of
New York. His commission, which was dated July 6, 1864,
was issued during the recess of the Senate. A new commis-
sion was issued to liim, with the advice and consent of the
Senate, on the 0th of January 1865, after which he again made
and subscribed the solemn declaration prescribed by the treaty.*
On the part of Great Britain the commis
British Conunig- gioner was Sir John Rose, the eminent Cana-
"""**'' dian statesman who afterwards rendered im-
portant diplomatic services as a confidential agent of the
British foreign office in tlie informal negotiations leading up
to the establishment of the tJoint High Commission by which
the Treaty of Washington of May 8, 1871, was concluded.
The commissioners held their first meeting
Oiganintionofthe j^ the city of Washington on the 7th of Jan-
mmtunon. ^^^^.^ 1865, uud uftcr making and subscribing
the declaration required by the treaty chose as clerks George
Gibbs on the part of the United States and William Finlay
Gairdner on the part of Her Britannic Majesty.
Mr. Charles Dewey Day appeared as counsel
Counsel. for the Hudson's Bay and Pnget's Sound Ag-
ricultural Companies, Mr. Caleb Cnshing as
counsel for the United States. They each filed with the com-
mission a written authority, Mr. Cushing's being in the form of
an ofiicial letter from Mr. Seward of January 9, 1865, saying :
1 Life, Letters, and Speeches of Daniel S. Dickinson, 1. 16.
^MS. Journal of the Commission; Jaunary 10, I860.
Digitized by LjOOQIC
Hudson's bay company claims. 241
<' By direction of the Presideu t, you are appointed the counsellor
on behalf of this Government to represent it before the Joint
Commission under the convention between the United States
and Great Britain for the adjustment of the claims of the
Hudson's Bay and Puget's Sound Agricultural Companies."
Mr. Day's autliority was in the form of an official letter from
Mr. J. Hume Burnley, British charge d'affaires, of January 7,
1865, authorizing him to appear at the desire of the companies.
The commissioners adopted rules to regulate
Bulet. the transaction of business. These rules were
subsequently amended, chiefly by the addition
of certain regulations. They required one of the clerks to be
in daily attendance at the office of the commission, which,
until further orders, was established at No. 355 H street north-
west, in order to receive and file documents addressed to the
commissioners.
On January 9, 1865, the commissioners, on
^n^Ti^^ciBim-^l^Q application of Mr. Day, granted till the
22d of the following March for the filing of
memorials. On the 16th of March they extended the time,
with the consent of counsel, to the 15th of the next month.
On that day the memorials were presented and ordered to be
filed.
At their first meeting the commissioners
SelMtioii of Umpiire. discussed the selection of an umpire without
reaching a conclusion. On. the 21st of April
they jointly issued a commission to Benjamin K. Curtis, the
distinguished jurist, whom they had selected as umpire and
who had accepted the trust. On the 24th of April Mr. Curtis
subscribed the requisite declaration, which was tiled with the
commission on the 27th of the same month.
Between May 30, 1865, and May 10, 1867,
TakiiigofTMtiiiioiiy. no meeting of the commissioners is recorded.
The interval was employed by counsel in the
taking of testimony. By the rules of the commission all tes-
timony, unless otherwise specially ordered, was required to
be in writing, and on oath or affirmation administered accord-
ing to the laws of the place where the testimony was taken
by a person competent by such laws to take depositions. All
depositions were required to be filed with the clerks from time
to time as they were taken, and, in view of the large number
expected to be taken, specific directions were prescribed as
5627 16
Digitized by V^OOQ IC
242 INTERNATIONAL ARBITRATIONS.
to the manner in which they should be printed. It was also
ordered, on motion of counsel, that an order or commission
be issued for taking evidence on the part of both companies,
as well as of the United States, in the States of California
and Oregon, the Territory of Washington, and Vancouver
Island; that such order or commission be addressed to any
judge or clerk of a court of record. United States court com-
missioner, justice of the peace, or notary public; that the
witnesses produced by either party be examined and cross-
examined viva voce alter reasonable notice to either party;
that all objections to evidence and all other questions of law
or practice be reserved, and that the evidence, with all the
documents and papers and a report of all such objections, be
returned to the commissioners with all convenient diligence.
On May 11, 1867, the commissioners, who
Argamenti. had assembled on the i)reviou8 day, received
from counsel a report as to their respective
proceedings and a motion for the regulation of the arguments
to be submitted on each side. The report and motion were as
follows:
"To the Honorable the Commissionel's.
"The undersigned, counsel for the United States and the
claimants, respectfully represent:
"Provision was made at as early a day as possible after the
filing of the memorials of the claimants to take testimony on
both sides.
" In behalf of the claimants this was commenced at Victoria,
in British Columbia, August 5, 1865, and concluded at the city
of Washington, April 20, 1866.
"Testimony for the United States was commenced at the city
of Washington, May 7, 1866, and in the expectation of the
arrival of certain evidence from Oregon on or before June 30,
1867, may probably be closed at that time. If, however, the
counsel for the United States should find that further time is
necessary, he will make special application therefor to the
commissioners.
"At the same time, or as soon as may be convenient after
the close of the evidence on the part of the United States, the
counsel for the two companies will determine whether or not
to put in rebutting evidence and the time requisite for that
purpose.
" In anticipation of the conclusion of the testimony on both
sides, the undersigned now move the Honorable Commissioners
for permission to argue the two causes in print as follows:
"Mr. Day to file opening arguments for the Hudson's Bay
and Puget's Sound Agricultural Companies, severally, in a
period not exceeding two months after the day when the
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Hudson's bay company claims. 243
testimony on both sides shall have been completed, printed and
filed with the clerks of the commissioners.
"Responsive arguments in both causes by Mr. Gushing for
the United States shall be filed by him in like manner within
two months after the day when Mr. Day's opening arguments
shall have been filed.
"Closing arguments by Mr. Day for the Companies shall be
filed within two mouths after the filing of the arguments of
the United States.
"Oral arguments shall not be submitted unless the same
may be hereafter required by the commissioners.
"The respective counsel beg leave to state that the prepara-
tion of the two causes for hearing has been prosecuted with all
due diligence aiid with as much expedition as the numerous par-
ticular subjectsof inquiry, the remoteness from one another of
the places at which evidence was to be taken, and the interests
of the parties would permit; all ot which has been facilitated
by the disposition of counsel on both sides to arrange by con-
sent as to the times, places and manner of taking depositions.
"Evidence of the estimated amount of about 2,500 printed
pages, of which 1,400 are already in print, has been taken in
Kngland, in British Columbia, in Canada, in the Territory of
Washington, in the State of Oregon, New York, Pennsylvania,
Ohio, Michigan, Tennessee, North Carolina, Louisiana and
Florida, and at the city of Washington.
"C. Cushing, for the United States.
"Chs. D. Day, for the H. B. Co. & the P. S. A. Co."
And the commissioners ordered accordingly.
On June 10, 1868, Mr. Day gave notice of an
m riai^ ^ intention to ask leave to amend the memorial
in the case of the Hudson's Bay Company.
The motion was granted on February 23, 1869.
On January 26, 1869, Mr. Day addressed a
dote of Cases, letter to the commissioners, stating that the
closing argument of the claimants, in reply to
the responsive argument of the United States, had been trans-
mitted to Washington to be filed of record, and that three
copies were also sent to the address of each commissioner.
"The case," he added, "is thereby completed on both sides
according to the terms of the order made by the commissioners
on the 11th of May, 1867, «and I have the honor respectfully to
request that it may be taken into consideration, with a view
to final adjudication upon it."
On February 24, 1869^ the commissioners
Oral ArgamentB. granted a motion, which Mr. Cushing made on
the 10th of the preceding December, that he
be permitted to address them orally on the questions i>ending
in both cases. They api)ointed Friday, April 12, and the city
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244 INTERNATIONAL ARBITRATIONS.
of New York as the time and place for the hearing of such oral
arguments as the respective counsel might desire to address
to them.
On the same day (February 24, 1869) the
AdxniMDiOn of Ifow .i i • i -^r
^ commissioners granted a motion, which Mr.
Gushing made on the preceding day, for per-
mission to put in evidence certain papers communicated by the
minister of the United States in London showing the progress
and results of negotiations then i>ending between the Hudson's
Bay Company and the governments of Great Britain and Can-
ada for the cession of the rights of the company to Canada.
They granted this motion, with the proviso that any such evi-
dence should be communicated by Mr. Cushing to Mr. Day
on or before the 1st of the ensuing April, and that it should,
together with such written comments as counsel on either side
might see fit to append, be laid before the commissioners on or
before the 15th of the same month.
On September 10, 1869, the commissioners
opuuons an w ^^^ their opinions and rendered an award,
of CommiBsionen. _, , . , , ,
They decided that, ''as the adequate money
consideration for the transfer to the United States of America
of all the possessory rights and claims of the Hudson's Bay Com-
pany, and of the Puget's Sound Agricultural Company, under
the first article of the treaty of June 1st, 1863, and the third
and fourth articles of the treaty of June 15th, 1846, commonly
called the Oregon Treaty, and in full satisfaction of all such
rights and claims, there ought to be paid in gold coin of the
United States of America, at the times, and in the manner pro-
vided by the fourth article of the treaty of June 1st, 1863, on
account of the possessory rights and claims of the Hudson's
Bay Company Four Hundred and Fifty-Thousand Dollars; and
on account of the possessory rights and claims of the Puget's
Sound Agricultural Company the sum of Two Hundred Thou-
sand Dollars; and that, at or before the time fixed for the first
payment to be made in pursuance of the Treaty, and of this
award, each of the said Companies do execute and deliver to
the United States of America, a sufficient deed of traiisfer and
release," in a form which was annexed to the award.
The grounds on which this award was based
Oroonds of Award, may be collected from the memorials of the
claimants, the arguments of counsel, and the
opinions of the commissioners.
Digitized by LjOOQIC
Hudson's bay company claims. 245
The memorial on thi^ part of the Hudson's
^^* Co ^ '* ^^y Company * set forth that the governor
and company of adventurers of England trad-
ing to Hudson's Bay, commonly called the Hudson's Bay
Company, in the year 1846, and for a gi^eat number of years
previously, were in the full and free enjoyment, for their exclu-
sive use and benefit, of rights, possessions, and property of
great value in the territory on the northwest coast of Amer-
ica lying westward of the Rocky Mountains and south of the
forty-ninth parallel of north latitude. Such rights consisted
"as well in extensive and valuable tracts of land, whereupon
numerous costly buildings and enclosures had been erected and
other improvements had been made, and then subsisted, as of
a right of trade which was virtually exclusive, and the right of
the free and oi)en navigation of the River Columbia within the
said Territory." These rights, possessions, and proi)erty, as
the memorial declared, "had been acquired while the said
Territory was in the ostensible possession, and under the Sov-
ereignty and Government of the Crown of Great Britain, and
the company held and enjoyed the same, with the knowledge
and consent, and under recognitions, both express and implied,
of the Crown of Great Britain, and by persons acting under
its authority." Referring, then, to the first four articles of the
treaty of 1846, which are quoted above, the memorial declared
that—
"The rights which the United States were so held to respect,
and in the enjoyment of which they were bound to uphold and
maintain the Company, consisted of: —
"jPir«^. — The free and undisturbed possession, use and enjoy-
ment in perpetuity, as owners thereof, of all the i)osts, estab-
lishments, farms and lands held and occupied by them, for
purposes of culture or pasturage, or for the convenience of
trade, with all the buildings and other improvements thereupon.
^^Secondly. — The right of trade in furs, peltries and other
articles, within and upon the whole of the said Territory, and
the right of cutting timber thereupon, for sale and exportation.
^^ Thirdly. — The right to the free and open navigation of the
Columbia River, from the point at which the 49th parallel of
North latitude intersects the Great Northern branch of the
said river, down to the ocean, with a like free and open use of
the portages along the said line."
After averring that these rights had not been either protected
' Memorial and Argument on the part of the Hudson's Hay Company, Mon-
treal: John LoveU, 1868.
Digitized by LjOOQ IC
246 INTERNATIONAL ARBITRATIONS.
or respected by the United States, the memorial presented a
detailed account and valaation, under distinct Leads, of the
compensation claimed for injuries and for the transfer of all
rights and claims to the United States:
1. The first item was for the deprivation of certain lands
and trading stations, which were enumerated and valued. Of
these it was alleged that the company was deprived by set-
tlers claiming under the land laws of the United States, by the
action of the officers of the United States, and by the hostil-
ities between the United States and certain Indian tribes
which had, until the treaty of June 15, 1846, been under the
control of and at peace with the company. On this score the
company claimed the sum of £285,350, or $1,388,703.33.
2. The next item of damage was the loss of the right to
trade. This, it was alleged, had been virtually exclusive, and
had been destroyed by the deprivation of the lands and trad-
ing stations. For this the company claimed £200,000, or
$973,333.33.
3. The company also claimed damages for the relinquish-
ment and transfer to the United States of its right to the
free and open navigation of the Columbia Eiver. On this
score it claimed £300,000, or $1,460,000.
In all therefore the company claimed £785,350, or $3,822,-
036.67. But in the amended memorial this amount was in-
creased by the sum of £94,500, or $499,900, for the value of
certain lands alleged to have been undervalued in the memorial.
The memorial was signed by Mr. Day, as counsel for the
Hudson's Bay Compan3\
The argument of Mr. Day in support of the
Aipimento om- jn^,^^jpj.^i ^j^g f^n q^^^ exhaustive. Tracing
the history of the Hudson's -Bay Company
from the grant of its charter by Charles II. in 1670, he described
its rights of trade and proprietorship, as well as its rights of
political and civil administration. It was quasi-sovereign over
the territory it occupied, and it exercised its functions over
a very large portion of the territory that passed under the
exclusive sovereignty of the United States by the treaty of
1846. Immediately afterward the company began to feel the
effect of the change in its position on its business. It became
aware that "it was regarded by the American settlers and by
the public authorities with no favorable eye. Urgent repre-
sentations were made to the British (government, and from
Digitized by LjOOQIC
Hudson's bay company claims. 247
time to time by that Government to the United States, for
protection and redress, but with no satisfactory result; and
meanwhile the possessions guaranteed to the company were
becoming constantly less secure and deteriorated in value, by
the hostile and aggressive action to which they were exposed."
Passing to the question of the extent of the guaranty as-
sumed by the United States under the treaty of 1846 of the
"possessory rights" of the company, Mr. Day submitted five
propositions :
"I.
" That under the obligations assumed by the 3rd article of
the treaty of 1846, that * the possessory rights of the Hudson^s
Bay Company should be respected,' the United States were
bound to protect and maintain the claimants free from all
disturbance or aggression arising from the change of sover-
eignty, in the full and perpetual use and enjoyment of all the
possessory rights then held by them; with the exception of
such powers and privileges as made part of the essential pre-
rogatives of the new sovereignty.
"II.
"That under the expression ' possessory rights ' was com-
prehended everything of appreciable value, whether corporeal
or incorporeal, of which the Hudson's Bay Company was in
the possession and enjoyment in the ceded territory at the date
of the treaty consisting: —
"1. Of all their posts and establishments, with the buildings
and all the land attached to or used in connection with them,
and all the personal property.
"2. Of the right of trade.
"3. Of the right of navigation of the Columbia Eiver and
its tributaries.
"III.
" That the possessions, property and rights specified in the
foregoing proposition, were of the respective values stated in
the memorial, and in the motion in amendment thereof.
"lY.
"That the United States have not only failed to protect and
maintain the Hudson's Bay Company in its rights, but by their
officers and citizens acting under the authority of their Gov-
ernment or laws, have violated and usurped them.
"Y.
"That the United States are now liable to the Hudson's Bay
Company for the highest value of these rights, at any time
between the date of the treaty and the production of the
Digitized by LjOOQIC
248 INTERNATIONAL ARBITRATIONS.
present claim; wliich v^alue, with all damage and loss suffered
in consequence of such failure and aggression, ouglit to be the
measure of the adequate money consideration to be awarded
by this Commission."
Mr. Oushing, replying to the argument on
*ttate/co *el^* *^^*® ^^^^^ ^^ ^^*^ company, contended that, in
the first pla<5e, the obligation of the United
States was only to respect the company's possessory rights
upon their "future appropriation" of the territory, as provided
in the treaty, and that such appropriation would consist in the
United States doing one of two things: (1) Taking for its own
use such portions of the land as it would need for i)ublic pur-
poses, as military reservations, light-houses, etc.; (2) estab-
lishing its land system over the territory.
What, in the second place, was the meaning of the term
"possessory rights"! It meant, he contended, such rights as
grew out of the possession of property, real or personal. But
the company did not allege that its possessory rights in per-
sonal property had been violated by the United States, and
the discussion was therefore confined to the possessory rights
of the company in land.
In respect to " possessory rights" in land, it was observed that
the company had no fee-simple title to it, because such title
could be acquired, under the laws of England and of the
United States, only by grant ff om the sovereign authority, and
this the company did not pretend to have had. The company,
said Mr. Gushing, was in the territory only by virtue of the
license to trade. This created a mere tenancy at will, and the
license might expire either by the cessation of the interest
of the licensee, by revocation, or by expiration of the title of
the licensor. It was laid down as a familiar principle that
" the death of either party will of itself revoke it" (a license)*
By parity of reasoning the license of the company ended when
the sovereignty of Great Britain over the territ-ory ceased.
Pushed to their utmost limit, the "possessory rights" of the
company, Mr. Gushing contended, were only as follows:
a. Right to the possession of the land occupied by it at
time of the treaty.
b. Right to the use and fruit of the land occupied by it at
time of the treaty, in the same manner as it was used before.
c. To maintain possessory action against trespassers.
d. The duration of these rights to be commensurate with
Digitized by LjOOQIC
Hudson's bay company claims. 249
the license to trade under which the company discharged its
functions in the territory.
And even assuming that the license was not extinguished
by the a<5knowledgment of the sovereignty of the United
States over the territory, it ceased in 1859, the Crown having
rescinded it in 1858 in British Columbia.
The possessory rights of the company having been thus de-
fined, Mr. Cushing maintained that the obligation on the part
of the United States to respect them simply required that they
" should not, by any act of their own or their officers, invade
those rights; and that they should extend proper judicial rem-
edy for their protection." So far as the company complained
of unauthorized trespassers upon its possessions, the United
States was, said Mr. Cushing, in no sense responsible.
Mr. Cushing declared that $250,000 would be a large allow-
ance for the transfer of all the claims and rights of the Hud-
son's Bay Company to the^United States.
The memorial in the case of the Puget's
Claim of Puget'i Qound Agricultural Company, after reciting
un Agn ra ^^^^ fourth article of the treatv of 1846, set
Company. * '
forth that the United States had neither con-
firmed the company in the possession of its lands nor signified
any desire for a transfer of them, as provided in the treaty, at
a valuation, '^ and that by reason thereof, and of the acts and
])roceedings of officers of the United States, and of American
citizens, and of others assuming to act under the authority of
the laws, or of the Government of the United States, the
company were deprived of the use and enjoyment of a large
portion of their lands, farms, and other property, and of the
rents, fruits, and profits thereof; their pasturage was destroyed
or taken from them ; their live stock killed or driven off, and
wholly lost to them; and their entire business broken up or
rendered unprofitable." For these various losses the company
claimed £240,000, or $1,168,000. Many of the arguments used
in support of the claim of the Hudson's Bay Company were em-
ployed in the case of the Puget's Sound Agricultural Company.
Mr. Cushing opposed the claim on the
^StotwConnid*** g^^^*^"^ (^) ^^^^^ t^® company, having been
formed by the Hudson's Bay Company for
purposes which the latter could not rightfully pursue, and
having no charter from the Crown, was fraudulent in its origin
and had no legal existence; (2) that the obligation of the
Digitized by LjOOQIC
250 INTERNATIONAL ARBITRATIONS.
United States, under the treaty of 1846, to " confirm " it in
its farms, lands, and other property left open the question of
title; (3) that it had no le^al title to the lands which it occu-
pied, either by original grant from a sovereign authority or
by occupancy, the country being wild and under no civilized
government and the Indian title not extinguished;^ (4) that,
having no legal title, its only right to its lands was the "pos-
sessory right" of mere occupancy, which could apply only to
lands actually under fence, and for which the utmost that
could be claimed was payment for improvements; (5) that it
had no claim against the United States for alleged injuries to
personal property, such as horses, neat cattle, or sheep, since
it had, like other inhabitants of the country, a remedy in the
courts; (6) that if, and so far as, the United States applied its
land laws to the land claimed by the company the govern-
ment merely exercised proper rights of sovereignty in dis-
charge of its duty to all the inhabitants, including the company,
and in so doing benefited the company; (7) that the claims of
the company should on these grounds, and on the ground of
exaggeration by false testimony, be reprobated and rejecte<l.
In his opinion on the claim of the Hudson's
Britiih CommiMion- j^^y Company, the British commissioner said
or'B Opimon on ^^^^ j^^ proposed to confine himself to the con-
Hndson'sBayCom- ., . «
pany'B Claims. Suleratiou of two points, Viz:
"1st. — What were the rights of the Hud-
son's Bay Company as understood by the Treaty of lH46f
And what obligations did the United States of America
thereby assume in respect of them!
"2nd. What is now an adequate money consideration for
these rights and claims?
" I. — The powers of the Hudson's Bay Corn-
Bights of the Com- pany, as recognized by the Crown and the
pany. * Parliament of Great Britain, for many years
previous to the Treaty of 1846, were not merely those of a
trading company. Motives of public policy on the part of
Great Britain had prompted that Government to confer on the
Company, in the uncivilized territory over which they extended
their operations, authority of a Judicial, i)olitical and quasi-
sovereign character. So far from being considered as intruder^^
on the public domain, encouragement, in the shape of exclu-
sive rights of trade, and otherwise, .was held out to the Com-
pany as an inducement to carry their enterprise to regions into
1 Citing Johnson v. Mcintosh, 8 Wh«»aton, 543; Mitchell v. United States,
9 Peters, 711; Doclsley's Ann. Reg. 1763, p. 208 ; 4 Stats, at L. 730; De Armas
V. Mayor, 5 Miller (La.), 132.
Digitized by VjOOQ IC
Hudson's bay company claims. 251
which they might extend, and be the representatives of British
interests.
" The public faith, was, therefore, pledged towards the Com-
pany to secure just and friendly consideration for these inter-
ests, wherever the authority of England extended, and in
whatever form it might properly be exercised. • • •
*^ The rights and interests of the Company could hardly be
more comprehensively defined than by the expression 'possess-
ory rights.' They exercised no rights which they had not
acquired, and which they did not, long before the date of the
Treaty, possess, with the knowledge, and by the sanction, of
the Crown. I am unable to coincide with the argument of the
Counsel of the United States, that the expression ' possessory
rights' imported only such fixed improvements on land as a
tenant at sufferance might claim. I am, on the contrary, im-
l)e]led to adopt, as the legitimate interpretation, the general
view urged by the Claimants : that it comprehended all things,
corporeal and incori)oreal, of an appreciable character, of
which the Company had the enjoyment.
<< It is urged, however, that during the joint occupation pre-
ceding the Treaty of 1846, the United States were sovereign, dc
jurcj of the country over which the Hudson's Bay Company's
operations extended; that the convention of 1818 merely sus-
pended the exercise of such sovereignty; that Great Britain
could not confer, nor could the Hudson's Bay Company acquire
any rights in the interim, except those of ordinary occupants;
and that the Treaty of 1846 imposed no new obligation on the
United States, beyond what its laws extended to other persons
in the unauthorized possession of its public lands.
"The convention of 1818 cannot, in my opinion, be con-
strued to recognize, in either party, an exclusive right to the
territory, but, on the contrary, only to declare what the pre-
vious circumstances in relation to the country, and the cx>n-
current statement of the two governments imi>orted: that the
title of neither nation was clear. I do not, however, consider
it necessary to found an argument on this, because the lan-
guage of the Treaty of 1846 seems to me clearly to imply on
the part of the United States, an acknowledgment of, and to
concede a rightful iiossession and property in, the Hudson's
Bay Company, of the character I have defined, which the
Government of the United States assumed the important and
substantial obligation of respecting.
AW *« # ♦v "This obligation their Counsel contends was
uStklliutaf ^^^^^^^^ ^^ ^^^ United States Government, by
^ itself or its officers, refrained from direct vio-
lation of such riglits as the Treaty referred to, and permitted
the Company to exercise the judicial remedies customary to
the country.
" The Claimants contend for a broader view of the duty,
and that under the pecnlijir circumstances of the country, and
the x>osition in which the Hudson's Bay Companj'' was placed.
Digitized by LjOOQIC
252 INTERNATIONAL ARBITRATIONS.
tlie attitude taken by the Government and its officers in regard
to the rights of the Company under the Treaty, and the fact
that trespass and violation in every form were practised,
showed a substantial failure to respect, and accord that rea-
sonable measure of protection to their rights, which, in a
Treaty stipulation of this character, and with reference to
rights of so peculiar a nature, one nation has the right fx> look
for at the hands of another.
''It would be productive of no practical benefit to attempt
by general rules, to define the exact measure of duty devolving
on the United States in each particular case where a breach of
the Treaty stipulation is complained of.
"It was obvious at the time of the Treaty, that the position
of a foreign corporation, claiming to exercise almost every right
not incompatible with sovereignty, in the territory of the United
States, was an anomalous one, and one which would, as between
any nations, and even in a maturer state of society, have given
rise to innumerable difficulties that could neither be foreseen
nor guarded against.
"Those difficulties were aggravated in the present case by
the two-fold exercise of authority by the State and the Federal
Governments; by the rude and immature condition of society;
and by the spirit of individual liberty, bordering on lawlessness,
which exists in a new country. It is hardly ])08sible to inter-
pret the precise obligation which the words of the Treaty
import, without reference to the practical difficulties which
subsequently arose, and which could not then but have been
anticipated, and must be presumed to have been in the minds
of the high contracting parties. Keeping these considerations
in view, I regard the obligations of the United States under
the Treaty, to mean, that, cognizant of this state of things,
.they undertook the correspondingly extensive duty of seeing
that the Hudson's Bay Company should not suffer from them,
but that the Company would be maintained in the exercise of
their rights and property as fully and amply as they had been
previous to the Treaty. • • •
''Before entering on a consideration of the
Duration of Com- gecond branch of the case, it is proper to notice
patty's Bighte. ^jj^ objection taken as to the duration of the
Company's rights. It is contended on the part of the United
States that any rights which the Company might have had were
limited as to time, by the licenses of exclusive trade granted
by Great Britain, which finally expired in the year 1859, and
that after that day the Company's possession was without any
color of right whatever.
" I cannot acquiesce in this x>roposition. The licenses in my
opinion had for their object to prevent the danger to the peace
of the country, and the well being of the Indians, which might
have arisen from the competition of rival traders within the
territory. The rights which were recognized in the Company,
Digitized by LjOOQIC
Hudson's bay company claims. 253
as national pioneers, were both antecedent to, and independent
of, these licenses.
*' Their occupation of the lands, their trading, their posts and
other possessions, were not dependent on the license which only
superadded the privilege of exclusiveness in tavor of the Com-
pany, against all but the citizens of the United States. If, at
the expiration of the licenses, the British Government had not
seen fit to renew them, the rights, property, and interests of
the Company would not have been impaired, but must have
continued to be respected by the Crown on the grounds of
natural justice and equity, although the Company would have
been deprived of the power of excluding other British subjects
from trading in the country.
"Such is the aspect in which, according to my judgment, the
license of trade ought properly to be regarded.
Am t fCo - "^'' — The duty of ascertaining the adequate
onn 0 mpen- j^^jj^y consideration to be paid to the Hud-
■* "^ son's Bay Company by the United States is
one of extreme difficulty, — especially if the determination of the
sum is to depend on the legal appreciation of the evidence which
has been submitted to the Commissioners.
"The claim is presented to the Commissioners under certain
specified heads of demand, viz: —
"1st. The value of the various posts of the Company.
"2nd. The value of its trade.
"3rd. The value of the right of navigating the Columbia
River.
"4th. The loss and damage occasioned by the acts of the
United States.
"The means which have been afforded the Commissioners of
arriving at a conclusion on these ]ioints are: —
" 1st. The opinions of numerous witnesses w^ho have been
examined on both sides.
"2nd. The offers that have been made, as well on the part
of the United States as on the part of the Hudson's Bay Com-
pany, at various times since the date of the treiity.
"3rd. Other documentary evidence, and a varietj'^ of circum-
stances connected with the claim, bearing on the question of
value, which have taken x)lace since 1846.
__ . ^ . _ , " With reference to the item of claim founded
T w ^^ ^^^® "^^*^ ^^ navigating the Columbia River
maaiver. ^^^ ^^ ^^^ Treaty under which the Commis-
sioners exercise jurisdiction emiK)wers them to examine and
decide on all claims arising out of the 3rd and 4th Articles of
the Treaty of June, 1846.
"These articles relate to the possessory rights of the Hud-
son's Bay Company, and to the lands of the Puget's Sound Agri-
cultural Company only — and the stipulations relating to the
navigation of the Columbia River are to be found in another,
the 2nd Article of the Treaty of 1846.
Digitized by LjOOQIC
254 INTERNATIONAL ARBITRATIONS.
"No reference is made to the 2ud Article of the Oregon
Treaty in that under which the Coniinissioner» hold jurisdic-
tion. It would, therefore, appear that their functions are lim-
ited to a consideration of those claims only which arise out of
the provisions of the 3rd and 4th Articles.
"The Counsel for the Claimants, however, contends, that
even assuming the alternative that the right cannot now be
dealt with ^ as a distinct and independent ground of claim under
the 2nd Article of the Treaty, it is nevertheless a posHeasory
rights giving an enhanced value to all the other possessions of
the Company.'
" I have given my anxious consideration to the aspect of the
case with reference to the Columbia River, which is thus pre-
sented, and am compelled to adopt the conclusion that dealing
with any right of navigation secured by the 2nd article of the
Oregon Treaty must be considered as ultra vires of the Com-
missioners.
tt lAndM. Trad "^ therefore procccd to discuss the remain -
oiu, d», e, ijjg three items of claim presented to the Com-
and LoM and Dam- •• •^v i t* a\ r^ «
missioners, viz: the value of the Company's
*^' posts and lands, the value of the trade, and the
loss and damage resulting from the acts which have been com-
mitted. • • •
"The evidence of the Claimants, if it stood alone, might be
appealed to, to sustain an award of more than a million of dol-
lars; while the weight of the evidence adduced by the United
States would reduce the claim to a very insignificant sum.
n* ^ # tLi " Ofl'ers on the part of certain functionaries
^^ Ji o^ t^® United States were made at one time
Offers ©f compro- ^ pay $1,000,000 for the rights of the two Com-
""*• paiiies, including the navigation of the Colum-
bia River, as expressed in the draft of a convention prepared
by Mr. Webster in 1852; while at another time, in 18G0, the
company, through Lord Lyons, agreed to accept $500,000 as
in full for their demands.
" During the negotiations, various intermediate sums were
named as a proper indemiiity which it would be just to pay.
I cannot regard these negotiations as any evidence of the
appreciation by the Company of the true value of their rights.
The Company then had well grounded apprehension that they
might receive nothing. Congress had declined to vote any
sum whatever. The Company no doubt feared that the Treaty
stipulation could only be enforced at the risk of involving
national strife. They knew that private interests must suc-
cumb in the presence of, and to avert so vast a danger, and
were ready to accept anything which the British Government
might indicate its readiness to stand on. I am disposed,
therefore, to regard the wide range of these negotiations, and
the diversity in the sums offered and agreed to be accepted,
chiefly as indicative of the desire of the executive Governments
of both countries to arrive at some adjustment of a national
Digitized by LjOOQIC
Hudson's bay company claims. 255
controversy; and as evidence of the extreme difficulty of form-
ing an accarate estimate of the real value of the rights which
were in dispute.
E id t Dam- " ^^ ^^® recur to the Opinion of the witnesses
enee mo *^- y^g |^ ^i^^ value of the posts and land, and of
^^' the trade, those of the Claimants would fauly,
and after making very ample allowance for over estimate,
justify an award considerably in excess of the lowest sum
which the Company was at one time prepared to accept;
wliile in the opinion of the witnesses for the United States,
those items of cUiim are hardly of any appreciable value. It
cannot be denied but that during the interval which elapsed
between the date of the Oregon Treaty, and their final aban-
donment of the country, the Company suffered a series of
wrdngs in disregard of the Treaty stipulations, for which indem-
nity is properly due to them ; but it would serve no good pur-
pose to refer in detail to these acts of aggression, or to the
obstacles which from the first had been interposed in the
Company's way.
... "While I hold these general views with
seasons for A^mg j.^gp^^ ^^ ^^^ eights of the Claimants, and to
on war . the measure of indemnity they Ought to receive,
I am not indifferent to the great importance of arriving at a
conclusion in reference to the amount to be awarded, in which
both Commissioners may concur.
" It is obvious that in a case of this nature, where there is
ground for much honest diff'erence of opinion, both as to the
law and facts of the controversy, each Commissioner must be
prepared to make some concession in the views he holds, if a
common judgment is to be reached. There is no rule by which
the testimony can be appreciated, to warrant the conclusion
that a positive sum — no more and no less — is made out in proof.
Upwards of 170 witnesses from every part of the continent, and
in every possible sphere of life, have been examined in the two
claims before us; while the evidence both documentary and
other, with the arguments upon it, cover more than 3,500 pages
of printed matter. The number and character of these wit-
nesses; their means of information ; their disposition to view
the claims favorably or the reverse; the grounds they assign
in support of their opinions; the elements of value on which
each relies in support of his opinion, have all to be weighed and
often with reference to facts themselves controverted. By no
process of reasoning can I satisfy my mind that I ought to fix
on a particular sum, above or below which, within a reason-
able range, there would be error in going. • » •
'' My individual opinion would have been in favor of award-
ing a considerably larger sum to the Claimants, than that in
which my colleague is willing to concur. Yet the inherent
difficulties of the case, to some of which I have adverted, would
seem to impose on one seeking to perform his judicial func-
tions with impartiality, and to accomplish effectual results, the
Digitized by LjOOQIC
256 INTERNATIONAL ARBITRATIONS.
duty of not pushing to the limit of irreconcilable difference,
the opinion he holds ^ but on the contrary of modifying his
views to some extent within the range to which the testimony
may reasonably be held to apply, where he finds an honest
opinion, equally strong, adverse to his.
"After, much anxious and lengthy comparison of opinions
with my colleague, and on the fullest and most careful consid-
eration I have been able to give, 1 believe it to be my <luty to
acquiesce in the sum of Four Hundred and Fifty Thousand
Dollars in gold, as an adequate money consideration to be paid
to the Hudson's Bay Company for the transfer of the rights
and claims to the (iovernment of the United States, specified
in the Treaty of the 1st July 18G3 and do award that sum to
be paid accordingly in terms of the said Treaty."
The commissioner on the part of the United
United statM Com- g^^^^j^g j^f^^^. reciting the provisions of the
treaty of arbitration and the treaty of 1846, in
relation to the Hudson's Bay Company, said :
"These are the Treaty provisions which mainly control the
rights and claims upon which we are to pronounce. There are,
however, earlier arrangements between the two Governments
respecting the Northwest Territory which ought to be kept in
view.
"By the Convention of October 20, 1818, article 3, it was
agreed that any country that may be claimed by either party
on the northwest coast of America, westward of the Stony Moan -
tains, shall, tr>gether with its harbours, bays and creeks ^nd
the navigation of all rivers within the same, be free and open
for the term of ten years, from the date of the signature of the
present convention, to the vessels, citizens and subjects of the
two powers; it being well understood that this agreement is
not to be construed to the prejudice of any claim which either
of the two high contracting parties may have to any part of the
said country, nor shall it be taken to affect the claims of any
other power or state to any part of the said country; the only
object of tlie high contracting parties, in that respect, being
to prevent disputes and differences amongst themselves.
"Subseciuently on the (Jth of August, 1827,
Convention of 1827. by another convention, the third article of that
of 1818 was indefinitely extended and contin-
ued in force, subject, however, to be abrogated on twelve
months' notice by either party to the other. And it was fur-
ther declared that neither convention should be construed to
impair, or in any manner affect the clsiims which either of the
contracting parties may have to any part of the country west-
ward of the Stony or liocky M(mn tains.
"In connection with the negotiation of the convention just
mentioned, it is proper to notice the British statement an nexeil
to the protocol of the sixth conference, held at London Decem-
ber 16, 1826, between Messrs. Huskisson and Addington, the
Digitized by V^OOQlC
Hudson's bay company claims. 257
British Commissiouers, and Mr. Gallatiu, the minister plenipo-
tentiary of the United States. It is mainly a discussion of the
grounds of claim urged by the United States to the exchisive
sovereignty of the territory, and so far is not material to be con-
sidered. It contains also a statement of the views maintained
by the British Government in respect to the joint occupation
of the territory, which, in my judgment, have a bearing on the
questions before us.
"It commences by stating that, in proposing to renew the
arrangement for joint occupation for a further term of years,
the British Government regrets it has been found impossible
in the present negotiation, to agree upon a line of boundary
which should separate those parts of the territory, which might
thenceforward be occupied or settled by the subjects of Great
Britain, from the parts which would remain oi^en to occupancy
and settlement by the United States.
"After a discussion of the claims of the two countries, this
statement is made: * In the interior of the territory in question,
the subjects of Great Britain have had for many years numerous
settlements and trading posts: several of these posts on the
tributary streams of the Columbia, several on the Columbia
itself, some to the northward, and others to the southward of
that liver.' *It only remains for Great Britain to maintain and
uphold the qualified rights which she now possesses over the
whole territory in question. These rights are recorded and
defined in the convention of Nootka. They embrace the right
to navigate the waters of those countries, the right to settle in
and over part of them, and the right freely to trade with the
inhabitants and occupiers of the same. I'hese rights have been
peaceably exercised ever since the date of that convention ; that
is for a period of nearly forty years. Under that convention
valuable British interests have grown up in those countries.'
<To the interests and establishments which British industry
and enterprise have created, Great Britain owes protection.
That protection will be given as regards settlement and freedom
of tnule and navigation, with every attention not to infringe
the coordinate rights of the United States.'
« .X.. *xv « " Even ijrlor to the making of the first con-
Pontum of the Com- a > ^r • - ^ i* ^ ii_.-
. ^ vention of joint occupation, posts were held m
pany in regon. ^^^ ^^^^ try in q uestion, both by the N orth west
Company and the Hudson's Bay Company. These posts came
subsequently by agreement between the two Companies, into
the sole possession of the Hudson's Bay Company. These
establishments had been greatly increased in number and
value, before the period of the renewal of the convention for
joint occupation. At the time of the making of the Oregon
Treaty, they had been still further extended and improved, so
that the actual possessions of the Company and of the Puget's
Souml Agricultural Company embraced a very large and val-
uable property interest — in fact the most important and valu-
able of the civilized establishments within that territory. This
5627 17
Digitized by LjOOQIC
258 INTERNATIONAL ARBITRATIONS.
result had been facilitated by the Act of Parliauieiit of 1821,
which authorized the Crown to grant for a period not exceed-
ing 21 years the exclusive privilege of traduig with the Indians :
exclusive as against all British subjects, but not attempting
any interference with the rights of American citizens. In
pursuance of this Act, a grant was made of the exclusive trade
with the Indians, which became finally vested in the Hudson's
Bay Company, and which by renewal was in force in 184G,
when the Oregon Treaty was made, and by its terms was to
expire in 1850.
'* In addition to this right of exclusive trade with the Indians,
various powers and duties were, in pursuance of the Act of
Parliament referred to, conferred upon the Iludson's Bay
Company, having reference to an administration of justice and
government.
*^It thereby became a quasi -governmental agency of the
British Government over its subjects within that territory.
Under these favoring circumstances, the Company increased
largely in w^ealth and possessions, and was in great prosperity
at the conclusion of the Treaty of 184G.
" It will be observed tliat not only were the rights of Amer-
ican citizens not interfered with by the Act of Parliament but
no right was denied within the territory to any British sub-
ject, save that of trading with the Indians. The whole eflect
in this regard, therefore, of the Act of Parliament and the
grants made in pursuance of it, was to close the trade with
the Indians against all British subjects in favor of the Hud-
son's Bay Company. So far as we have been made aware,
there was no other legislation by either Government restrict-
ing its citizens or subjects from the full and free enjoyment of
al the rights embraced in the mutual declaration of the two
Governments, that the territory should be free and open to the
subjects and citizens of each. The declaration contains no
limit, upon the nature of the use to be made of the territory
by those who should resort to it, and in the absence of any
such expressed limit, the terms em])loyed should receive a
large and beneficial construction. They who went into the
territory were, I think, at liberty to make such use of it, as it
was found to be capable of, for trade and hunting if it were fit
for nothing better; for civilization and settlement if that were
found to be possible.
*'The maiu purpose and object of the reservation which ac-
companied the convention of joint occupation and its renewal,
Avas to save the question of ultimate sovereignty from prejudice.
And although the legal title to the land may be necessarily
included in the idea of sovereignty, so that, notwithstanding
settlement and improvement, the settler must be deemed to
hold subject to the final adjustment of the question of sovereign
dominion, it is not too much to say, that those who first appro-
priated the lands to the i>urposes and uses of civilized life,
would have acquired an equitable claim to consideration, iroia
Digitized by LjOOQIC
Hudson's bay company claims. 259
whichever party should in the end be found to be legally the
sovereign. Oertiiinly, each Government hoped by emigration
and settlement to strengthen itself in the territory, with a view
to the final adjustment of the question which was open between
them. And 1 tliink it can scarcely be supposed, that either
Government ever expected, that in a settlement of the disputed
sovereignty by negotiation, the other would be willing to aban-
don its citizens or subjects, as the case may be, without stipu-
lating for appropriate protection.
'*The Hudson's Bay Company had, in addition, peculiar
claims upon the protection of the British government under
whose sanction its establishments were formed. For while it
was carrying on trade, doubtless for its own benefit, it was also
the sole governmental agency of Great Britain in the vast region
in question. Its position of actual possession in tbe territory,
afforded the strongest ground for the expectation on the j>art
of that Government of maintaining its hold ui)on the territory,
at least to tbe Columbia liiver.
•'Under these circumstances, I think the British Government
was bound to afford it protection, and that the statement of the
British negotiators in 1827, as to the purpose of their Govern-
ment in that regard, does not go beyond the measure of obli-
gation due from it to the Company.
''Nor would tlie measure of that obligation have been h*8s, if
the territory had in the end fallen to Great Britain. The pos-
sessions of the Company in the territory, acquired with the
assent and sanction of the Government, and over which they
had first begun to extend the influences of civilization, could
not have been taken from them, without a violation of natural
justice. It is true that for the purposes of civil government,
and the convenient devolution of property, the title to land is
deemed to be derived from the sovereign, but its more natural
foundation is upon the enterprise and labor of those who first
subject it to cultivation and civilized use. So strong is the con-
viction of the justice of this view, in this country at least, that
the rights of original settlers have, I think, never been disre-
garded, and the laws have, from time to time, been modified
and moulded so as to protect this equitable right, even where
it had its inception without the sancticm of law. The same view
is, in my judgment, to be applied to the possessions of the Hud-
son's Bay Company in this territory, with respect to the British
Government.
" They were not held by grant from the Crown, but they
were held under circumstances which bound that Government
to maintain the Company in those possessions.
''Having thus stated as briefly as I am able, the condition of
the Hudson's Bay Conijiany at the time of the Oregon Treaty,
and its relations with tlie Government of Great Britain ami
the rights and duties growing out of those relations, I proceed
to consider the language of the Treaty, in its application to
these subjects.
Digitized by LjOOQIC
260 INTERNATIONAL ARBITRATIONS.
" The preamble, in substance, declares that
PoflseBsory Bights, the Treaty is an amicable compromise of the
rights imitually asserted over the territory,
and made to put an end to a state of doubt aud uncertainty,
respecting the sovereignty and government over it. This being
the dto'amtion of both (Tovernments neither is at liberty in
myjudgmtnr to go behind it, or to take ground in the con-
struction of the provisions of the Treaty, founded on the asser-
tion of a clear previous right. • * * Upon such amicable
compromise, it stood upon natural justice, that protection
should be extended to the subjects or citizens of either Gov-
ernment, found to be established within the line api)ropriated
to the other, and that the measure of that protection should
be equal to the rights of every sort, which existed under the
original government.
" We are not, however, left to determine what would be the
rights and duties of the parties, were the treaty silent upon
the subject. They have seen tit to declare, by the third article
of the Treaty, that the possessory rights of the Hudson's Bay
Company by name, as well as those of all British subjects,
having certain qualifications, should be respected.
" The plain object of this provision is to secure protection
for the parties, under the newly acknowledged sovereignty of
the United States. It should be construed with a view to the
futherance of that end, and so as to secure ample and complete
protection to the rights which were its object.
<*The stipulation for protection is the language of both Gov-
ernments, and therefore whatever possessory rights the Hud-
son's Bay Company had against either of them, whatever their
nature or completeness, whether they were of perfect or only
of imperfect obligation, capable of assertion through the judi-
cial power, or requiring legislative action to perfect them, they
are secured and established in right. And the Corann'ssioners
being empowered to deal with these questions according to
justice and equity, can dispose of them, unembarrassed by con-
siderations which might arrest the action of the ordinary judi-
cial tribunals, and require a resort to the power of legislation.
In my judgment then, as well for the reasons I have stated, as
for others ably set forth in the arcrument of the Claimants, the
possessory rights of the Hudson's Bay C^nnpany included all
their rights, save those which related solely to government
aud administration.
*'Upon the duration of their enjoyment of
Daradon of Eights, those rights, the language of the treaty im-
poses no limit. They did not derive them from
the exclusive license to trade with the Indians. The force of
that license was the exclusion of others. Had it failed of re-
newal before the treaty, none of their rights would have fallen
with it, save those of government and administration. They
would have remained in possession of the lands they oi'cupied,
of the right of trade in general, and of the right to trade with
Digitized by VjOOQ IC
HUDSON^S BAY COMPANY CLAIMS. 2G1
the Indians, in common with all other British subjects and
American citizens. And if the Government of Great Britain
had seen fit to assert its legal ownership of the land iK)sse8sed
by tlie Company, it could not have done so consistently with
equity and justice, without providing eomi>en8ation.
ouimti f th ''^^^ these rights were preserved to the Com-
UUedBtatet ^ pany, in my judgment, by the Treaty; and the
corresponding obligations were assumed by the
United States.
*'Upon the question whether these rights have been re-
spected, as the Treaty required, I do not propose to go into
detail. No one who reads the history of the aflFairs of the
Oompanj^ as related in the evidence, from the time of the
Treaty to the time when they by virtual compulsion abandoned
their establishments south of the American lino, can fail to
feel that such respect, as was in fact received, was scarcely
commensurate with tlie extent of the obligations of the Gov-
ernment of the United States. This result was due, in my
judgment, in great i)art to an erroneous view by the Govern-
ment of the United States, of the extent of its obligations.
It seems to have assumed, that it had no duty in the premises,
but to leave the Company to the assertion of its rights, in the
ordinary tribunals of the country; and that it was at liberty
to contine them to such rights as were thus capable of asser
tion ; and it finally arrived at the conclusion, that all the rights
of the Company terminated with the expiration of the period
named in its exclusive license to trade. 1 do not find that
from the time of the Treaty to the present, the Company has
voluntarily abandoned any ]>art of its ])ossession8 or rights,
and I cannot, therefore, on any such ground, diminish at all
the measure of redress, to which I conceive the Company to
be entitled.
"Coming then, in the last place, to the ques
^'^^ t3^^^^^' ^^^" ^^* ^^^® adequate money consideration
■* spoken of in the Ti eaty, for the transfer to the
United States, of all the rights and claims of the Hudson's Bay
Company, under the third article, I encounter serious embar-
rassments. • • • From a mere trifle on the one side, all
the way to the enormous sum demanded in the Claimants'
memorial, on the other, almost any sum could be supported by
testimony, free from criticism, affecting either the fidelitj' or
intelligence of the witnesses. ♦ • • Upon comparing my
views with those of my colleague, after we had each separately
deliberated upon the evid(^nco, I found that we differed in
amounts, and in the directions in which our views might natu-
rally be expected to incline. In every inquiry in respect to such
a subject as value, an uncertainty necessarily exists as to the
correctness of any ])articular determination. When upon ex-
amination, however careful, a value is set, it is not certain that
the decision is free from error, to a greater or less extent, and
the limit of this jwssible or probable error will be greater or
Digitized by V^OOQ IC
262 INTERNATIONAL ARBITRATIONS.
less, according^ to the number and relative certainty of tlie
several elements, wbich enter into the calculation. Takin^c this
view of the difference between my colleague and myself, 1 could
not feel so sure of the absolute correctness of my own valua-
tion, as to warrant me in refusing to yield in the direction of
his strong convictions, within what I conceived to be the limits
of my possible error, especially as I found him not unwilling,
on his part, to give due weight to the like considerations.
**1 considered, moreover, the period which has elapsed even
since the Treaty of July 1, 18(33, during which the Claimants
have been unavoidably delayed in the receipt of their compen-
sation, as properly bearing upon the amount now to be allowed.
Upon these grounds I have concluded to unite in an award of
Four Hundred and Fifty Thousand Dollars in gold coin of the
United States, to be paid according to the terms of the Treaty,
as being the a<lequate money consideration mentioned in the
Treaty for tlie transfer to the United States, of all the possess-
ory rights and claims of the Hudson's Bay Company, under
the third article.
. . '*It should be added, that our jurisdiction
Havigauon of Co- relating only to the third and fourth articles
xunbia Biver. ^^ ^|^^ treaty of Oregon, we have not consid-
ered in any aspect the navigation claims of the Hudson's Bay
Company, which are provided for in the second article."
^ .^. ^ ^ In considering the claims of the Puget's
British Commmis- ^ ^
lioner'B Opinion on Sound Agricultural Company, the British com-
Clalm of Puget'B missioner said that the same observations of a
Sound Agrioul- preliminary nature which were made in the
turai Company, opinion expressed in the case of the Hudson's
Bay Company would equally apply, and that the arguments on
both sides in that case might be read in connection with those
offered in the i>resent.
Continuing, ^hen, he said:
"The 4th article of the Oregon Treaty provi<les, that the
farms, lands, and other ])roperty of every description belong-
ing to the Company, on the north side of the Columbia River,
should be contirmed to them; but that Mn case the situation
of those farms and lands should be considered by the United
States to be of public and political importance, and the United
States Government should signify a desire to obtain i>os8ession
of the whole or any part thereof, the property so required shall
be transferred to the said Government at a proi)er valuation
to be agreed upon between the parties.'
"The two points which now present themselves for adjudica-
tion seem to me to be:
"I. — Of what do the farms, lands, and other property consist!
"II. — What is an adequate money considerati(m for their
transfer?
Digitized by LjOOQIC
HUDSON^S BAY COMPANY CLAIMS. 263
"The Claimants aver the property to consist of:
"Ist. A tract at Nisqually eontaiiiiii«: about
perty an 107,040 acres with buildings and improvements;
carnage. ,^,^^^^ rj.^^ j^^^^^ ^^ the Cowlitz Elver con-
taining about 3,572 acres with buildings and imi)rovement8;
"3rd. Live stock driven away or destroyed, and other per-
sonal property for the loss of which they claim compensation.
"The Counselforthe United States, however,
^^Btat' tsikes issue ou the existence of the legal status
^' of the Company, averring it to be a fraudulent
nnd illegal olfshootoftheHudson'sBay Company; denies thatthe
Treaty acknowledges any property whatever in the Company,
confirming only to it such property as it may prove lawfully
belonged to it ; insists that the proof of lawful ownership is in no
way dispensed with ; contends that if any compensation at all is
due it must be confined to improvements only, and to those on
lands actually enclosed; that no claim can be i)referred under
the Treaty for loss of live stock or other personal property; but
that if any loss in respect of these had been sustained, the Com-
pany could only have recourse to the courts of law, like other
inhabitants of the Territory of Washington.
" 1 have read and considered with much care the ingenious
argnments and the numerous authorities offered to sustain
these several ])ropositions. I fail to bo convinced of the legal
incapacity of the Company to acquire x)roperty. I can see no
ground whatever for attributing to it any fraudulent or even
(luestionable character. I consider that the treaty of 1846, as
well i\s that of 1803, conceded beyond all doubt, both in spirit
and in explicit terms, the right of the Company to possess its
lauds and property north of the Columbia liiver.
"The only questions involving serious diffi-
fcIT ti°^^^ culty or embarrassment in my mind are to
of mpema on. ^^g^^j.^ajn the extent and boundaries of the
farms, lands, and other property of the Company, and to de-
cide as to what is the i)roper valuation, or adequate money con-
sideration, to be paid on their transfer to the United States.
"The sources to which the Commissioners have to look for
guidance, in endeavoring to arrive at a just conclusion on
these points, are substantially the same as those to which ref-
erence has been made in the case of the Hudson's Bay Com-
pany. The same ditficulties attach to an intelligent .apprecia-
tion of the evidence offered in this case as in that, whether we
refer to the opinions and assertions of witnesses; to the weight
to be attached to the offers of comi)romise; or to the several
facts (such as the assessed value for taxation by the local au-
thorities, of the i>roperty) enumerated in the evidence, as bear-
ing both on the question of extent and value.
"The position of tiie Tnget's Sonnd Company under the
Treaty of 1846 was equally anomalous and unsatisfactory with
that of the Hudson's Bay Coin])any. It had in addition to
wait for the signification of a desire ou the part of the United
Digitized by V^OOQ IC
264 INTERNATIONAL ARBITRATIONS.
States to acquire its lands and property; and it was, in the
mean time, subject to the inroads of settlers claiming under
the local law.
"It was exposed to the same recurring acts of aggression
against which it was difficult to obtain protection from the
local tribunals; and the testimony produced from the local tri-
bunals, and the testimony produced by the claimants, evinces
a state of popular feeling within the Territory, against which
it seemed, from the outset, hopeless for the Company to eon-
tend. There is much force in the argument that the United
States, standing in the double relation of sovereign of the
newly acquired Territory, and purchaser, at option, of the
land, ought not to have the advantage of any deprWiation
consequent on its own acts. While giving due weight to
this aspect of the case, it would perhaps be of little avail,
practically, to refer in detail to the difficulties which beset the
Company from the year 1840 downwards, and which are so
pointedly enumerated in the evidence before the Commission-
ers. I propose to content mj^self with stating, in general
terms, the views I have formed touching the character and
extent of the proi)erty for which indemnity ought to be given,
and what I think has been shown to be the proper valuation
and measure of indeumity in respect of it.
'M have already stated it to be my opinion that the title was
recognized by the high contracting parties to be a right of own-
ership in the Company, and that the use of the word 'belong-
ing*' did not, as contended for by the United Stiites, imply a
restriction to such property as the Company could prove a
legal title to, or ownership in. The extent of its possessions,
however, was left undecided, and that question now presents
considerable difficulty in forming a correct judgment with ref-
erence to it.
" The Company carried on the work, not only of farming, but
of raising sheep and cattle. That business required the occu-
])ation and use of large tracts for pasturage; and this state of
things was known at the time of the Treaty of 1846. That
Treaty makes use of language which is manifestly intended to
include the lands, and all the property of every description
which the company used or possessed; and I cannot accept
the modified interpretation contended for by the United States,
that it meant to confirm only what the Company could prove
a legal ownership in ; or that in any case its claim must be con-
fined to such land as was actually closed. The Company had no
different title to the lands within enclosures, from what they
had to those over which their pastoral occupations extended.
Both rested on thefact of possession a nd use. Enclosures were
unnecessary either for the convenience of the company's busi-
ness, or as evidence of i)ossession in them, for there were no
other occupants in the country. Thoy alone possessed, and
the segregation of what they possessed by defined boundaries,
from other tracts, was a form wholly unsuited to the primitive
Digitized by V^OOQlC
Hudson's bay company claims. 265
condition of tbe territory. It is evident that in tlie contempla-
tion of both parties, this property was nnderstood to be exten-
sive, for it is anticipated in the language of the Treaty that they
might be ot i)ubiic and political importance. I am, therefore,
of opinion that the estimate of value should extend to, and be
held to include, all the lands in the geographical tract at Nis-
qaally, which the Company used for its agricultural and pas-
toral purposes.
" The farm and establishment at Cowlitz offer less difficulty
as to the question of boundary and extent; and I think the
Claimants have made out a satisfactory case to the x)ossessioa
of about 3,000 acres there.
*' It will be seen from the construction which in my judgment
should be given to the Treaty, with reference to the extent of
the Company's property for whicli indemnity is rightly due,
viz: that it comprehends all that the Company possessed for
agricultural, as well as for pasturage purposes; that applying
the evidence of record to those principles of construction, the
measure of indemnity should bo a large one.
*' I make due allowance for exaggeration of opinion on the
one side, and undue disparagement on the other; and I appre-
ciate the objections which attairh to adopting, as an absolute
criterion of value, the assessnient by the local authorities, of
the Company's proi)erty at Nisqually.
"The intrinsic difficulties in the way of a just estimation,
after a close and rigid scrutiny of the evidence, are very great,
even if there were no controversy on the construction of the
Treaty, as to the items to which tifio evidence should apply.
*'A comparison of views by the Commissioners has served
but to show how great the ditference of judgment may be, on
the conflicting and varied state of facts presented, even when no
other influence than that of a single-minded desire to appreciate
it intelligently and impartially inspires them.
"The rule which they have thought it their duty to be
guided by, has been to form what the sei)Jirate judgment of
each i)ointed at, as a fair estimate of value; and then, after
discussion, that each should acquiesce in such a reasonable
modification of opinion, within a certain range of value, as
might be necessary to arrive at a common coitclusion. This
would seem to be the only alternative oi)en, but that of remit-
ting the case to the single judgment of the umpire.
" While, therefore, according to my individual judgment,
the measure of compensation ought to be sensibly larger than
that which is arrived at, I iiave, on the whole, though with
some misgivings, felt it the i)art of duty, to acquiesce in a
modified amcmnt in order that the united award of the two
Commissioners might set at rest a controversy, which has been
already prolonged to an extent seriously injurious to tlie inter-
ests affected by it. I, therefore, decide, that the adequate
money consideration to be paid by the United States ot* Amer-
ica to the Puget's Sound Agricultural Company for the transfer
Digitized by V^OOQ IC
266 INTERNATIONAL ARBITRATIONS.
of their rights and claims to the United States, is Two Hun-
dred Thousand Dollarsin fi^old, and do accordini^ly award, that
that sum shall be paid, according to the terms of the Treaty."
In the case of the Puget's Sound Agricul-
TJnited States Com- tural Company, tliecommissiouer on the part of
muHdoner'8 Opin- ^^^^ ij„ited States, observing, as did the Brit-
ish commissioner, that much that had been said
in the discussion of the claims of the Hudson's Bay Company
was also applicable to the claims of the former company, said :
A*« 1 rir T f " Under the language of the fourth article
1846 f^^ tlie treaty of 1846], a question is raised,
whether that [the Puget's Sound] Company m
not bound to show a title anterior to the Treaty, valid in law
jigiiinst the Government of Great Britain. It is based upou
the fact that the Treaty speaks of farms, lands, and other
property ^ belonging' to the Company, and which it declares
shall be con tinned to them.
"The argument in favor of the construction of the Treaty
which I have adopted in the Hudson's Bay Company's case is
broad enough to include this also, and to impose upon us, as i\
duty, the application of these terms of the treaty to the farms,
lands, and other property at the time in the apparent owner-
ship of the Puget's Sound Agricultural Company. There was
never any grant of lands by the British (lovernment to this
Company, a fact in the knowledge of both Governments, and
the construction contended for would render the provision of
the Treaty illusory.
"If I may quote authority upon such a point, Vattel ssiys:
(Law of Nations, Book 'J, ch. 1 7, Par, 283.) ' We do not presume
that sensible persons had nothing in view in treating together,
or in forming any other serious agreement. The int>erpretation
which renders a treaty null and without etfect, cannot then be
admitted. It ought to be interpreted in such a manner, as that
it may have its ett'ect, ami not to be found vain and illusive.
It is necessary to give the words that sense, which ought to be
presumed most conformable to the intention of those who speak.'
in illustration of these principles he instances the case of the
Athenians, who after having promised to retire from the terri-
tories of their enen^y, remained in the country under the jjre-
tense that the lands actually occuj)ied by their army did not
belong to the enemy. He rejects this interpretation in lan-
guage more energetic than I wish to cite, and declares that
by the territory of the enemy ought manifestly to have been
understood everything comprehended in their ancient limits,
without excepting what had been seized during the war.
"Upon these princiides of interpretation, 1 have no hesitSr
tion in saying that the intent of the ])arties, as manifested by
the terms employed, included all the lands, which apparently
belonged to the Company. The term ^belonging' is not a condi-
Digitized by LjOOQIC
Hudson's bay company claims. 267
tioTi, and Imports none into the provisions. It is used merely as
a part of the descriptive designation of the property intended.
'*A question is also presented, as to the ex-
p ° °™^^^ tc"*i o** fc^<^ possessions of the Company, and
*^*'**"°'"' the outward indicia of proi)erty necessary to
bring any particular lands within the terms of the Treaty.
'* It should not be forgotten that at the ]>eriod when the Treaty
was made, the possessions of the lJnite<l States on the Pacific
coast were comparatively of trifling importance. California
had not been acquired, gold had not been discovered, and the
actual population of American citizens was very small. Apart
from the occupation by the two Companies, whose claims are
before us, most of the country was vacant. To require, under
these circumstances, such evidence of appropriation and pos-
session as are usual in settled countries, would be very unrea-
sonable. In settled countries, such evidence is required, be-
cause enclosures and other like marks of ownership are the
usual attendants upon proprietorship, and serve as notice to
others who may have or claim conflicting rights. In this wil-
derness they would have been mainly useless for any ]>urpose
of enjoyment by the Company of their lands, and idle for any
other i)urpose. It is enough if their lands were possessed in
any sense, by such appropriation to the uses of the Company,
as their circumstances called for. They had farms within en-
closures, and they grazed their extensive herds of cattle over
certain portions ofthe territory, near their main establishments,
and included all these lands within what they regarded and used
as their possessions before the Treaty.
^<I am satisfied from the evidence, that their claims to lands
both at Cowlitz and at Nisqually are not afterthoughts as to
their extent, but are substantially in accordance with the fact
as it existed at the time of the Treaty. Two considerations
strengthen me in this conclusion. The first is, that were their
possessions so limited in extent, as is claimed on behalf of the
United States, they could not have been deemed, in the then
condition of the country, of enough consequence to require a
provision, looking to their becoming of public and political im-
X)ortance, and providing in that event for their acquisition and
])urchase by the United States, It is only to a tract of country
of considerable extent that such terms can have been thought
applic^able. This is not a mere power of eminent domain by
which public necessity is provided for upon compensation made.
It is political importance which was in view.
"The next is, that the United States has never proceeded to
confirm to this company any lands whatever, as they stipulated
that they would. In the absence of such action on their part,
I think it my duty t^ extend to the Company the benefit of any
doubts which may ])os8ibly exist, as to the precise extent of
their possessions at the time of the Treaty.
*'I find no evidence that this Company has ever voluntarily
submitted to any dismemberment of its i)ossessions; and
Digitized by LjOOQIC
268 INTERNATIONAL ARBITRATIONS.
though it has, in fact, bet*n deprived of much the greater part
of all its lauds, I must consider its rights as standing uual
fected by everything which has taken place since the date of
the Treaty.
^ ^ -, "In considering the amount which onglit to
Amount of Compen- ^^ ^.^.^^ ^^ ^^^^ ^^^.^^^ ^^^^^^ ^^^ ^^^ ^^^.^^
** ^' guishnient of its chiims, and the acquirement
of its rights, 1 feel myself pressed upon by considerations of a
like nature to those which I have mentioned in discussing the
claims of the Hudson's Bay Company. The same diversity of
testimony, and the same difference of views between myself
and my colleague, as to questions of value, have existed in this
case as in that, and the same process of reasoning and reflec-
tion have lea me to unite with him in awarding to the Pnget's
Sound Agricultural Company the sum of Two Hundred Thou-
sand Dollars in gold, to be paid according to the terms of the
Treaty, as the adequate nioney consideration for the transfer
to the United States of all the possessory rights and claims of
the Tuget's Sound Agri(;ultural Company, under the fourth
article of the Treaty of Oregon."
The text of the award of the commissioners
Tezt^f Award. . , _^ ^^n^„.,
IS as follows:
"AWARD.
"At a Meeting of the Commissioners under the Treaty of July
1st, 18G3, between Her Britannic Majesty and the United States
of America for the tinal settlement of the Claims of the Hud-
son's Bay Comi)any and I'uget's Sound Agricultural Company
held at the City ot Washington, on the tenth day of Septem-
ber 18G0,
" Present:
".John Rose, Commissioner on the part of Her Britannic
Majesty,
"Alexander S. Johnson, Commissioner on the part of the
United States of America.
"The Commissioners having heard the allegations and proofs
of the respective parties, and the arguments of their respective
Counsel, and duly considered the smne, do determine and award
that, as the adequate money consideration for the transfer to
the United States of America of all the possessory rights and
claims of the Hudson's Bay Company, and of thePnget's Sound
Agricultural Company, under the first article of the Treaty of
June 1st, 1803, and the third and fourth articles of the Treaty
of .June irjth, 1840, commonly called the Oregon Treaty, and in
full satisfaction of all such rights and claims, there ought to be
paid in gold coin of the United States of Aujerica, atthe times,
and in the manner provided by the fourth article of the Treaty
of June 1st, 18()3, on account of the ])osscssory rights and claims
of the Hudson's Bay Company Four Hundred and Fifty Thou-
sand Dollars; and on account of the possessory rights and
Digitized by LjOOQIC
Hudson's bay company claims. 269
claims of tbe Pugel's Souud Agricultural Company tlie sum of
Two Huudred Thousand Dollars; and that, at or before the
time fixed for the first paymeuttobe made in pursuance of the
Treaty, and of this award, each of the said Companies do exe-
cute and deliver to the United States of America, a sufficient
deed of transfer and release to the United States of America,
substantially in the form hereunto annexed.
" In Testimony Whereof, We, the said Commissioners, have
set our hands to this award in duplicate, on the day and year,
and at the place aforesaid.
''John Kose,
"Alkxandeb S. Johnson.-'
"form of deed.
"Know All Men by these Presents; That the Pu(j:et's Sound
Agricultural Company, in pursuance of the Award of the Com-
missioners, under the Treaty between Her Britannic Majesty
and the United States of America, of the first day of July,
1863, which award bears date, September 10th, 1809, doth, by
these presents, transfer to the United States of America, all
the possessory rights and claiuis of the said Company men-
tioned and specified in the first article of the said Treaty, and
in the third and fourth articles of the Oregon Treaty therein
referred to; and also doth, by these presents, release unto and
infavorof the United Statesof America, alldaimsaud demands
founded upon, or growing out of the aforesaid provisions of
the said Treaties, or the i)ossessory rights and claims of the
said Company hereinbefore referred to.
" In Testimony whereof, the Puget's Sound Agricultural Com-
pany have, in due form of law, executed this de; d, at London,
this day of , eighteen hundred and
" The same form of deed, mutatis viutandiH^ is to be executed
by the Hudson's Bay Company,"
In accordance with the award transfers were
Performance of executed to the United States by the two com-
Award. "^
panics, and the money was duly paid by the
United States in two installments of $325,000 each.^ In the
payment of the second instalhneut a complication arose in
consequence of a claim by Pierce County, Washington Ter-
ritory, against the Puget's Sound Agricultural Company,
amounting to $61,305.22, for taxes. In appropriating the
money for the payment of the second installment under the
award. Congress provided that, before payment should be made
of the portion awarded to the Paget 's Sound Agricultural
' 16 Stats, at JL. 386, 419. The receipts in the Treasury are respectively
dated September 26, 1870, aud September 15, 1871.
Digitized by LjOOQIC
270 INTERNATIONAL ARBITRATIONS.
Coinpauy, "all taxes legally assessed upon any of the property
of said company covered by said award, before the same was
made, and still unpaid, shall be extinguished by said Pnget
Sound Agricultural Company ; or the amount of such taxes
ethall be withheld by the Government of the United States
i'l om the sum hereby appropriated," ^ The question thus raised
was submitted to the Attorney-General of the United States.
On the 7th of August 1871 he rendered an opinion to the effect
that the award shouUl be paid. The treaty of 18G3 stipulated,
he said, that the sums awarded under it should be paid in two
fixed installments "without any deduction whatever" (Article
IV.). If the proviso inserted by Congress in the appropriatiou
should cause the payment of a less sum than the amount
awarded, it would produce a breach of the treaty. The statute
should therefore be construed strictly, and be held to mean no
more than its language necessarily imported. Under this rule
the term " taxes," standing in an act of Congress, with nothing
in the context to enlarge its significathm, was construed to
mean United States as distinguished from State or Territorial
taxes. On the strength of this opinion, as the United States
had no claim against the company for taxes, the money was
])aid over "without any deduction whatever."*
1 16 Stats, at L. 419; H. Misc. Doc. 222, 42 Cong. 2 sees.
«For. Rel. 1871, pp. 532-540.
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CHAPTER IX.
IMPEDIMENTS TO THE RECOVERY OF DEBTS:
COMMISSION UNDER ARTICLE VI. OF TUE JAY
TREATY.
In the negotiation of the provisional articles
Debt8 Due to Brit- ^f peace between Great Britian and the
ish SabjeeU. ^
United States in 1782 it was found necessary
to adjust two questions which involved to a large extent the
pecuniary interests of British subjects. These were the (ques-
tion of either restoring the estates of the loyalists or aftbrding
indemnity for their confiscation and the question of securing
the payment of debts due to British subjects before the war.
While the conclusion of ponce would ouce more open the courts
of the country to British subjects, there existed on the statute
books of various States acts which were passed daring the
war, and which, remaining in force after its termination, would
continue to bar the recovery of debts. Chief among these
were the confiscation and sequestration acts, which authorized
the payment of debts due to British subjects into the State
treasuries and made such payment a full discharge of the
obligation of the debtor.^
When in the earlier stages of the negotia-
8 pin- |.|^jjg j^j. Paris the British commissioners de-
lom.
manded some provision to secure the payment
of debts as well as compensation for the loyalists, Franklin
and Jay answered that the matter was one that belonged
exclusively to the several States. When John Adams arrived
in Paris he announced a different opinion. '' In my first con-
versation with Mr. Franklin on Tuesday last,'' says Adams,
in his Journal of the Peace Negotiations, under date of Sun-
day, November 3, 1782,^ <* he told me of Oswald's demand of
the payment of debts and compensation to the Tories. lie
said their answer had been that we had not ])ower nor had
> Am. state Papers. For. Rel. I. 193-200.
> J. AdAHu's Works, 111. 300-301.
271
Digitized by VjOOQ IC
272 INTERNATIONAL ARBITRATIONS.
Congress. I told him I bad no notion of checitiug anybody.
Tbe questions of payinir debts and compensating Tories were
two. I had made the same observation tliat forenoon to Mr.
Oswald and Mr. Stra<5hey, in company with Mr. Jay, at his
house. I saw it struck xMr. Strachey with peculiar pleasure: I
saw it instantly smiling in every line of his face. Mr. Oswald
was apparently pleased with it, too. In a subsequent conver-
sation with my colleagues, I i)ro|)ose<l to them that we should
agree that Congress should recommend it to the States to open
their courts of justice for the recovery of all just debts. They
gradually fell into this opinicm, and we all expressed these sen-
timents to the English gentlemen, who were much pleased with
it, and with reason, because it silences the clamors of all the '
British creditors against the peace, and prevents them from
making common cause with the refugees."
When the treaty was concluded it went still
ProyisioM of Treaty ^-^^^.^^^^^ j^ ^^^J^ ^^^^^ ^^^^^ recommend : it took
of Peace. '
bold national ground. By its fourth article it
positively stipulated '^that creditors on either side shall meet
with no lawful iini>ediment to the recovery of the full value in
sterling money of all bona fide debts heretofore contracted.'*
"We have been informed," said the American commissioners
in communicating the treaty to their government, "that some
of the States had confiscated British debts; but, although each
State has a right to bind its own citizens, yet in our opinion it
appertains solely to Congress, in whom exclusively are vested
the rights of making war and i)eace, to pass acts against the
subjects of a power with which the confederacy may be at war.
It therefore only remained for us to consider whether this article
is founded in justice and good policy. In our opiniou no acts
of government could dissolve the obligations of good faith
resulting from lawful contracts between individuals of the two
countries prior to the war. We knew that some of the British
creditors were making common cause with the refogees and
other adversaries of our independence; besides, sacrificing pri-
vate justice to reasons of state and political convenience is
always an odious measure; and the purity of our reputation in
this respect in all foreign commercial countries is of infinitely
more importance to us than all the sums in question. It may
also be remarked that American and British creditors are
l)laced on an equal footing." *
i Wharton'B Dip. Cor. Am. Kov. VI. 132.
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OBSTRUCTION OF JUDICIAL REMEDIES. 273
But, though the treaty thus provided for
**!?* tv ^^ * ^^^ recovery of debts, the Government of the
United States was unable to execute it. The
States refused to repeal their iinpeditive enactments, and
the Suite courts continued to enforce them. The government
of the confederation was practically powerless, and unable to
iiflfbrd a remedy.
On the other hand, there were certain provisions of the
t eaty which the British Government refused to execute. By
the seventh article it was provided that His Britannic Majesty
should, " with all convenient speed, and without causing any
destruction, or carrying away any negroes or other property
of the American inhabitants, withdraw all his armies, gani-
sons a^id fleets from the said United States, and from every
post, place and harbour within the same." The British forces,
before and at the time of their withdrawal from certain places,
sent or carried away a large number of negroes, in violation, as
the United States maintained, of the treaty of peace.' But
from certain other places they refused to withdraw. The posts
at Detroit, Mackinaw, Fort Erie (Buffalo), Niagara, Oswego,
Oswegatchie, Point au Fer, and Dutchmans Point were
retained by them.'^
When the Constitution of the United States
^1*^^.^!: * was ratitied and the government under it
established, Washington took measures to se-
cure the execution of the treaty by Great Britain. Since the
conclusion of the pea<;e the relations between the two coun-
tries had been in a most unsatisfactory condition, which the
outbreak of the revolution in France had lately contributed
to aggravate. The British Government, alleging the failure
of the United States to fulfill its obligations, had declined
to reciprocate the act of the latter government when it sent
John Adams as minister to London ; and diplomatic intercourse
between the two countries had long since ceased. It was
]iope<l, however, in the United States, that the adoption of the
Constitution would remove all obstacles that existed in Amer-
ica to the restoration of good relations. By Article VI., clause
2, of that instrument, it was provided that **all Treaties made,
or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land, and the Judgea in
' Am. state Papers, For. Re). I. 206.
■^ Am. Stat* Papers, For. Rel. I. 190,
5627 i^
Digitized by LjOOQIC
274 INTKKNATIONAL ARBITRATIONS.
every State shall be boiiiul thereby, any Thing hi the Consti-
tution or Laws of any State to the Contrary notwithstanding."
The first object of this chiuse was to secure the execution of the
obligation imposed by the fourth articleof the treaty of peace;
indeed, it was the refusal of the State courts to execute this
article that h*d the convention to insert the specific provision
that all treaties ''made," or thereafter to be made, should be
bindhig on ''the Judges in every State," in spite of anything
in its constitution or laws to the contrary.^
Conceiving it to be desirable, however, to
^^"altiJr^' attempt the restoration of good relations with-
out incurring the risk of a rebuff, Washington
instructed Gouverneur Morris, who was expected soon to be
in London, to make inquiries as to the sentiments and inteu-
tions of the British Court as to the performance of the obliga-
t ons of the treaty of peace, touching the surrender of the fron-
tier posts and conipensation for negroes.^ Morris arrived in
Loudon on the 28th of March 1700 and lost no time in calling
ui)on the Duke of Leeds, who was then minister for forei^
affairs. Being cordially received, he assured the duke that
all obstacles to the recovery of British debts had been removed
by the Constitution and the organization of Federal courts,
and sought to learn the intentions of the British Government
as to the performance of its obligations under the treaty. The
duke took the ground tliat the stipulations of the treaty should
be performed in the order in which they were therein set forth,
and finally declared that it was the purpose of Great Britain
to retard the surrender of the i)osts till redress was granted
to British subjects. In this declaration Pitt concurred. Mor-
ris's negotiations continued through the summer of 1790 with-
out other result than the promise of the British Government
to send a minister to the United States.^ This promise was
fulfilled; but the negotiations which took i)lace from Novem-
ber 1791 to May 1792 between Mr. Jefferson, who was then
Secretary of State, and Mr. Hammond, the British minister,
on the subject of the execution of the treaty of peace pniduced
nothing more substantial than some voluminous diplomatic
notes.*
'Coxe's Ju«lici?il Power and Uncoustitntioiial Lotrislation, 272-2H1.
-WasLiiigioii to Monis, Octolier 13, 1781), Am. State Papers, For. Kel. I. 122.
^Aiii. Stale PaperH, For. Kel. I. 122 et ncq.
^Am. State Papers, For. Kel, 1. 188, 189, 190-103, 19^-200, 201-237,238,
Digitized by LjOOQIC
OBSTRUCTION OF JUDICIAL REMEDIES. 275
The iustractioiiH g:iven to Mr. Jay on the
Jay Treaty. subjei't of his mission to Enghviid in 17S)4
expressed the wish that the recovery of debts
due to British creditors might be treated as a judicial ques-
tion, and as such remitted to the c-ourts.* The British Gov-
ernment declined so to treat it, and the discussion was renewed
on the lines on which it had previously been conducted. In
regard to negroes, Lord Grenville took the ground that His
Majesty's government had incurred no liability.* On the 0th
of August 1794 Mr. Jay presented a series of articles which
included, among other things, the surrender of the posts and
compensation for debts.^ Aftt»r the exchange of various proj-
ects, a treaty was concluded on the lOth of November. Its
second article provided for the evacuation of the posts on or
before June 1, 17!)6. Its sixth article related to the question
of debts. In an explanatory letter to his government Mr. Jay
stated that this article was a sine qua non, and was intended
to i)romote that justice and equity which judicial proceedings
might be incai)able of aftbrding. The commissioners niight,
he said, do exactly what was right, according to the merits of
the several cases, paying due regaid to all the <;ircumstances.*
Reciting that ''it is alleged by divers Brit-
Com ensationo .^^^ merchants and others, His Majesty's sub-
jects, that debts, to a considerable amount,
which were bona fide contracted before the peace, still remain
owing to them by citizens or inhabitants of the United States,
and that by the operation of various lawful impediments since
the j)eace not only the full recovery of the said debts has been
delayed, but also the value and security thereof have been, in
several instances, impaired and lessened, so that, by the ordi
nary course of judicial proceedings, the British creditors can
not now obtain, and actually have and receive full and ade-
quate com]>ensation for the losses and damages which they
have tiiereby sustained," the sixth article stipulated ''that in
all such cases, where full conqKinsation for such losses and
damages can not, tor whatever reason, be actually obtained,
had and received by the said creditors in the ordinary course
of justice, the United States will make full and complet*?
• Am. state PaperH, For. Uel. I. 472.
•^ Id. 4«r>.
3 Id. 4^6
■* Id. 503.
Digitized by LjOOQIC
276 INTERNATIONAL ARBITRATIONS.
coiiipeusation to tbe said creditors;" but it also distinctly
declared that this stipulation ^Ms to extend to such losses only
as have^been occasioned by the lawful impediments aforesaid,
and it is not to extend to losses occasioned by such insolvency
of the debtors or other causes as would equally have operated
to produce such loss, if the said impediments had not existed ;
nor to such losses or damages as have been occasioned by
the manifest delay or negligence or wilful omission of the
claimant."
" For the purpose of ascertaining the amount
Provision for Mixed ^f^^y g^^J^ losses and damages," the article fur-
Commission. O 7
ther provided that five commissioners should
be appointed, two by His Majesty, two by the President of the
United States, by and with the advice and consent of the Sen-
ate thereof, and the fifth "by the unanimous voice of the other
four"; but in case they should not agree, the commissioners
on each side were to propose one i^erson, and, of the two so
proposed, one was to be drawn by lot in the presence of the
four original commissioners; and each of the five was required
to take an oath or affirmation in a prescribed form.
It was further provided that the commis-
Powers of commis- gi^ners should first meet in Philadelphia, but
BLoners.
should have power to adjourn from place to
place as they should see cause; that three of tliem should con-
stitute a board and "have power to do any act pertaining to
tbe said commission, provided that one of the commisioners
named on each side, and the fifth commissioner shall be pres-
ent;"and it was stii)ulated that all decisions should be made
"by the majority of the voices of the Commissioners then
present." Eighteen months from the day on which the com-
missioners should form a board and be ready to proceed to
business were assigned for receiving complaints and applica-
tions; but the commissioners were authorized in any particu-
lar case in which it should appear to be reasonable and just (o
extend the term for not more than six months. In "examin-
ing the complaints and applications so preferred to them," the
commissioners were "empowered and required • • • to
take into their consideration all claims, whether of principal
or interest, or balances of principal and interest, and to deter
mine the same respectively, according to the merits of the
aeveral cases, due regard being had to all the circumstances
Digitized by LjOOQIC
OBSTRUCTION OF JUDICIAL REMEDIES. 277
thereof, and as justice and equity shall appear to them to
require.'' They were also empowered to examine such persons
as should come before them, on oath or affirmation, and to
receive in evidence, when duly authenticated, "all written
depositions, or books, or papers, or copies, or extracts thereof."*
It was further provided that '*the award of
t f iT dl' ^^^*' ®**^^ commissioners, or of any three of them
as aforesaid," should "in all cases be final and
conclusive, both as to the justice of the claim, an<l to the amount
of the sum to be paid to the creditor or claimant;" and that
the United States should cause the sum so awarded to be paid
in specie to the claimant without deduction, at such time or
place as the commissioners should award, and on condition of
such releases or assignments by the claimant as the commis-
sioners should direct, provided that no such payment should
be fixed by the commmissioners to take place before twelve
months from the day of the exchange of the ratifications of the
treaty.
By the eighth article of the treaty it was
Expeiues an acan- pp^yi^igj ^ly^^^ ^l^^ commissioners should be re-
spectively x>Aid in such manner as the high
contracting parties should, before the exchange of the ratifi-
cations of the treaty, agree on; that all other expenses should
be jointly defrayed, and that in ease of the death, sickness,
or necessary absence of any commissioner his place should be
filled in the same manner as that in which he was appointed.
Theratificationsof the treaty were exchanged
Legislation of Con- ^^ l^jjj^^,^ ^,^ |.|j^ 28th of October 1795, and it
was proclaimed on the 20th of the ensuing
February. By an act of May G, 1796, Congress made an ap-
propriation toward defraying the expenses of carrying the
treaty into effect, and fixed the salary of the American com-
missioners under Article VI. at $4,445.^ By anotlier act, of
June 30, 1797,^ the President was authorized, by and with the
' The Attorney-General of the United States advised that this stipula-
tion touching the examination of witnesses and the admission of evidence
implied ^^that public officers should furnish copies of papers when de-
manded, and should assist in bringing forward testimony according to the
duties of their several stations; and« also, that individuals should not
refuse to give testimony '^ to fac^ilitate the execution of the article.
(Charles Lee, Attorney-General, to the President, January 3, 1798, 1 Op. 82. )
« I Stats, at L. 460.
n Stats, at L. 523.
Digitized by LjOOQIC
278 INTERNATIONAL ARBITRATIONS.
advice and consent of the Senate, to appoint an agent, who was
to be entitled "to a compensation at the rate of two thousand
dollars per annum," "to act in behalf of the United States,
under the direction of the Attorney-General," and it was made
"the duty of the Attorney-General to counsel such agent, and
to attend before said commissioners [under Article VI.], wlien-
ever any questions of law, or fact, to be determined by them,
shall render his assistance necessary." Moreover, the Attor-
ney-General was "authorized to employ such agents, in differ-
ent parts of the United States, as the business before the said
commissioners, in his opinion, shall make necessary, to be paid
according, to their services, at such rate as the President of the
United States shall direct." For his own services under the
act the Attorney- General was allowed "an additional 3omi)eii-
sation of six hundred dollars )>er annum."
The commissioners appointed on the part of
American CommiB- ^^^ United States were Thomas Fitzsimons,
SLonen. '
of Pennsylvania, and James Innes,of Virginia.
Their joint commission, issued by and with the advice and
consent of the Senate, bears date April 1, 1706. Mr. Innes
died on the 2d of August 1798 and was succeeded by Samuel
Sitgreaves, of Pennsylvania, who was appointed on the 11th
of that month and took his seat at the board on the 28th.*
The British commissioners, whose joint ap-
n mmiB- pQi^i^m^jj^^ ^^^^ ^jj,t,e September 7, 1795, were
Thomas Macdonald and Henry Pye Kicb.
^Mr. Macdonald, one of the British commissioners; referring to Mr.
Innes, after the latter's death, said: "Colonel Innes, * » * than
whom a man more truly honorahle never existed; who enjoyed the cor-
dial friendship of General Washington; had resigned the situation of
attorney-general of the State to which he belon^fed to hold a ]ilace in
the commission; and was distinguished as much for that frankiu'ss of
mind which disdained all finesse, as for a manly eloquence and correct
judgment.'* (A Brief Statement of Opinions Given in the Board of Com-
missioners, under the Sixth Article of the Treaty of Amity, Commerce,
and Navigation, with Great Britain, by One of the Conmiissioners. Phila-
delphia, 1800, p. 10.) Mr. Sitgreaves was born in Philadelphia in 1764;
settled in Easton, Pa., in 1786, and died there in 1824. A lawyer by pro-
fession, he was a member of the constitutionhl convention of Pennsyl-
vania in 1789-90; served in Congress from 1794 to 1796; in 1797 condnctetl
the impeachment of William Blount; in 1799 assisted in the prosecution
of John Fries for treason. (Wharton's State Trials, 206, 484, 491, 557,
577.) At the close of John Adams's administration he retired from pnblio
life.
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OBSTRUCTtON OP JUDICIAL REMEDIES. 279
Though complaints wore afterward made of Mr, Macdonald's
domineering temper, he came well recommended for amiability.^
The four original commissioners first met at
Choice of Fifth Com- ^^^ ^^^^^ ^^ ^^ Fitzsimons, in Philadelphia,
mutioxier.
on the 18th of May 1797, and after communi-
cating to each other their commissions, which were found to be
ill due form, adjourned to meet on the 25th of May for the pur-
pose of selecting a fifth commissioner. Findingon that day that
they could not agree in the choice of a person to fill the posi-
tion, "the said commissioners appointed by His Britannic
Majesty," so reads the record, "did propose, John Guillemard,
esquire, of London, at present in Philadelphia, and the said
commissioners appointed by the President of the United States,
as aforesaid, did propose Fisher Ames, esquire, of Massachu-
setts, and the said Henry Pye Kich, and James Innes, having
retired into another room, the said Thomas Ma(tdona1d, and
Thomas Fitzsimons, wrote down the names of the said two per-
sons so proposed, on separate slips of paper, which being rolled
up, and placed in an urn, were carried in the same, by the said
Thomas Macdonald, and Thomas Fitzsimons, into the presence
of the said other two commissioners; and the urn being there
delivered to the said James Innes, was by him presented to the
said Henry Pye Rich, who, in the presence of the said other
commissioners, drew from the same, the name of the said John
Guillemard, who was declared the fifth commissioner, under
the said article of the said Treaty. — ^These things were so done
at Philadelphia, and in the house of the said Thomas Fitz-
simons, this twenty-fifth day of May, One thousand seven
hundred and ninety-seven."*
Each party was represented by an agent.
Agents an ecre- ^he American agent being John Read, jr.; the
British agent, William Moore Smith. The
secretary of the commission was G. Evans.
' ''Mr. Macdonnltl, who isjnst on the ])oint of Hailing for America, I am
nc(|uainte<l with. If you Hhonhl meet him, I need not a8k you to attend
to him when I inform yon that he is an amiable, well-informed gentle-
man, and carries with him the best disposition towards our country."
(William Pinkney to W. Vans Murray. London, February 9, 1797, Pinkney's
Lifeof Pinkney,29.)
'^ The four original commisaioners, in thus determining who should be the
fifth commissioner, followt-d the plan whir'ii hail, as we shall see, been
adopted by the commissioners under 4he srventh article at London, each
side presenting a list of names, and then proposing the name which the
other Bide selected from i I.
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2 so INTERNATIONAL ARBITRATIONS.
Tlio first meeting of all the commissioners
^'^^^ ^'^' Avas held on May 29, 1797, and on that day the
board was duly constitated by the administra-
tion of the requisite oath to all the commissioners, in the pres-
ence of each other, by the president of the court of common
pleas for the first district of Pennsylvania, who met the com-
missioners at their office for that purpose.*
The commissioners adopted rules to regulate
BabmissioiiaiLd Ex- ^he transaction of business, and before the
amination o |.^pg^ ^^ ^^^ eighteen months prescribed by the
treaty for the reception of complaints and appli-
cations, which expired at the end of November 1798, claims to
the amount of $ 19,000,000 had been filed. The total was ulti-
mately swollen to about $25,000,000. The examination of the
claims began in January 1798, and was proceeded with for
eighteen months as rapidly as matters of routine, the disturb-
ance caused by the prevalence of yellow fever in Philadelphia,
and other interruptions would permit. On March 19,1798,^
Congress created a fund for the payment of awards by appro-
priating $300,000 for that purpose, and until the illness of Mr.
Innes the proceedings of the board do not appear to have been
attended with any personal friction between its members,
though, as was to be expected, their decisions had not all been
unanimous. Indeed, with perhaps two or three exceptions of
slight importance, the decisions had related to matters of prac-
tice. Comparatively a small part of the mass of the business
which at length came before the bojird appeared till toward
the close of the term of eighteen months prescribed by the
treaty for the reception of complaints and applicsitions.
In one case, however, the agent of the United
t **^ A d^ States excited some feeling by suggesting a
doubt as to the binding character of an awnrd
in contingencies which he strongly suggested as possible, if
' The oath prescribed by the treaty and takeu by the conimiasionerH was
in the following form: "f, A. n., one of the Commissioners a])pointed in
pursuance of the sixth article of the Treaty of Amity, Commerce and Navi-
gation, between His Britannic Majesty and the United States of Amerira
do solemnly swear (or affirm) that I will honestly, diligently, impariially
and carefully examine and to the bestofmyjudgment, according to justice
and efpiity, decide all such complaints, as under the said article shall be
preferred to the said Commissioners; and that I will forbear to act as a
Commissioner in any case in which I may be personally interested."
n Stats, at L. 545.
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OBSTRUCTION OP JUDICIAL REMEDIES. 281
not imminent. On tbis suggestion the board made the follow-
ing order:
"Commissioners' Office,
Philadelphia, April 18, 1798.
"In the Case of William Cunningham, and others.
"The Answer of the United States, signed by their Agent,
having in this case been ])rinted and laid before the board, —
Ordered, that the General Agent for the Claimants, or Attor-
ney for these claimants, have leave to see and reply to the
same within three weeks; but with the exception of the intro-
ductory argument *to impress on the commissioners (as it is
there said) the primary importance of understanding the limits'
of their duty, and instructing them, on the authority of Yattel,
and with reference to a supposed case of manifest and inten-
tional wrong, in the expediency of taking care that they do
not 'renew the dissensions between the two nations,' by decid-
ing in a manner so jialpably 'absurd.' or so clearly proceeding
from ^corruption, or flagrant partialiti/,^ as to entitle ^either
nation to disregard the award.^ The Board make no furtlier
animadversion on the above argument than thus to state its
import, and prohibit all allusion to sucii topics in future. They
know no jiolicy but that of justice, and look forward to no
consequence but the consciousness of having done their duty.
^^ Ordered, that the Eeply in this Case be printed; that this
Order be therein fully recited, and copies hereof served upon
the Agents for both i)arties."
This order was drawn by Mr. Macdonald. The Attorney-
General inquired whether it meant "that it belonged not to
the Board to consider what the United States might think of
their awards?" In answer to this inquiry Mr. Macdonald, "for
the purpose of preventing, if possible, every cause of irritation
or offence, and because the question had been put to the board,
in writing, by the Attorney General/' wrote a ])rivate note to
the agent of the United States, saying that, while he officially
had no concern with the question suggested in the answer in
Cunningham's case how far the two nations would be bound
by the awards of the board, privately he thought fit to declare
that, in his opinion, in which he had reason to believe every
member of the board agreed with him, "nothing could be more
completely erroneous than the argument there maintained, and
unfortunately exposed to the world in iirint ;" that men of honor
could not for one instant consider the question of consequences;
that, "if he had ever imagined there was room for such a ques-
tion, he certainly would not have coifsented to accept the situ-
ation of a Commissioner, to be employed in the frivolous occu-
pation of giving judgments, which were to have effect, or not.
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282 INTERNATIONAL ARBITRATIONS.
according to the pleasure of either of the parties;" that, iiii1e8S
the deviation from the cases submitted was manifeat^ such as,
in the language of Vattel, could not be *' rendered doabtfnl by
the dissension of the parties," the award was "binding on both
nations, without the smallest regard to wliat either of them
singly may think of it;" that, while "a void award might hy
possibility be made by the board, sucli for instance as an award
for confiscated land^ or on debts contracted after the ])eace,
and the like; which would be so manifestly out of the treaty
that there could be no 'dissension' uxK>n the subject," yet "men
of common understanding" could not give "a void award un-
der this treaty, without corrupt motives, because the deviation
must \)G palpahlej and of course intentional."
On the 13th of July 1708 the board took
*\, ^ , * " up the case of Strachan and Mackenzie, which
itaUmoiLt Laws. i > 7
was based on the operation of certain statutes
of the State of South Carolina, commonly called the " Install-
ment Laws." With the exception of the claim of Bishop Inglis,
which will be considered hereafter, it was the first case that
came before the board requiring the decision of an important
question.
By an ordinance of the legislature of South Carolina of
March 2G, 1784, it was provided that no suit on a debt con-
tracted by a citizen of any of the United States i)rior to
February 2G, 1782, should be commenced till January 1, 1785,
and that then only the interest which had accrued since
January 1, 1780, should be recovered. After January 1, 178C,
the rest of the interest became recoverable, and also the
principal; but the latter only in annual installments of one-
fourth.* Tliis act was altered as to the amounts and periods
of collectable instnllments by an act of March 28, 1787.* By
an act of November 4, 1788, all prior installment laws were
repealed, and an annual installment of a fifth was adopted as
the limit of recovery.^ Strachan and Mackenzie's claim con-
sisted of a series of accounts, extracted from their partnership
books in London, and ending in 1774, and of certain bonds,
which were produced before the board. It was substantially
admitted by the agent of the United States that a sum of
*Act8y Ordinances, an<l R('Holve.s of the General Assembly of the State of
Sontli Carolina, Passed in tlie Year 178-t, p. 81.
^Cooper's Statutes of South Carolina, v. 36.
»Id. 88.
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OBSTRUCTION OP JUDICIAL REMEDIES. 283
nearly £17,000 was due on December 31, 1774, but he con-
t(*nded that the loss charged did not arise from the operation
of the instalhnent laws, but from other causes wliich would
ecjually have operated to produce it. The board received writ-
ten evidence and examined witnesses, and, without dissent,
" Resolvedj that the laws of South Carolina, passed subse-
quent to the peace, and known under the denomination of the
iHHtallment LaicSy were lawful imi>ediments to the recovery of
debts secured by the treaty of peace; and in this case oi)erated
as such within the meaning of the sixth article of the treaty
of amity."
Thus far the commissioners had proceeded
^*^dX"'*'*^ fairly harmoniously, but at this point Mr.
Macdouald took a step which, however well
intended, opened the way to and indeed necessitated the
exchange of written arguments on general principles. He had
made it "a practice," as he himself says, "to throw out for
consideration such observations as occurred to him, at the
moment, on the reading of every paper or argument before the
Board." '*The same principle," he further observes, "which
forbade all official concern, respecting the reception or opera-
tion of an opinion, once maturely formed and conclusively
declared, suggested the wish, that all possible aid and informa-
tion sliould be previously obtained, and every opiK)rtuuity of
fair and friendly discussion employed;" and to this end he
" thought of collecting and exi>osing his observations more
distinctly to the view of all the members, as well as of himself,
by putting them in writing, and entering them on the minutes,
as matter for conference, when no other business (which was
frequently the case) hapi)ened to be ready at the sittings of
the Board." This idea was confirmed by the continued illness
of Mr. Innes, since "the disclosure might be convenient for
Mr. Fitzsimons, who ha<l on many i>oints expressed very differ-
ent sentiments from tlio other members of the Board."
On July 25, 1798, Mr. Macdonald took the
' "H toT^ ' contemplated step by laying before the com-
missioners certain "notes," as "the substance
of what he had occasionally, with great deference, submitted
to their consideration; and which he wished to have entered
in the minute book, as such; in order to subject them to that
close examinntion" which the "imiwrtance of the matter"
demanded, and his "desire to be explicit and cf)rrect" had
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284 INTERNATIONAL ARBITRATIONS.
'^prompted him to invite.'' In these "notes" there are the
following passages :
*' Under the fourth article of the treaty of peace, the x>oint8
of enquiry are these:
" First. Was the debt fairly contracted before the peace t
" Secondly, Did the whole, or any part of the full value of it,
in sterling money, remain unpaid to the creditor at tlie peace t
'' If these points are answered in the aflBrmative, nothing
can take the case out of the treaty of peace, hut the free, volun-
tary, and uucontrouled discharge of the creditor. A discharge
by act or operation of law, un8up))orted by such free and
voluntary act of the creditor, still leaves the debt within the
descri})tion of fairly contracted, and not fairly paid : and though
such discharge by mere operation of law, would be good
against an American creditor, it is of no avail against a
British creditor; for this plain reason, that the right of the
former is governed by the general law of the land, but that of
the latter l)y the specml law of national compact or treaty,
*'Tbe article contains no exception either as to the nature,
or to the amount of the debts thereby secured. The words are
incapable of any limited interpretation — ^all debts' of what-
ever nature — *all debts 'to their lull amount, principal and
interest, according to the original contract, or the law and
usage which then prevailed. This seems to be the necessary
exposition.
'' To the recovery of the full value, in sterling money, of all
such debts, /a/r/y contracted and not fairly paid, it was agieed,
and solemnly promised by the two nations, respectively, that
the British creditors should ' meet with no lawfnl impe<liment'
in America, and American creditors should meet with no law-
ful impediment, in Great Britain.
'^Tlie expression 'lawful impediment,^ 'i% as comprehensive,
as it is applicable to the subject.
** Every cause of delay is an impediment,
" p]very cause of delay arising positively, out of the operation
and ett'ect of law ; or negatively, from the defect of law, is a
/flir/t/Z impediment.
" The scope of the article obviously was, that the law, or the
defect of law, shouhl not, on either side, stand between the fair
creditor, and his unwilling debtor: that all laws which had
been passed against such recovery, shouhl be repealed; all
necessary means in law restored; all bars, by i>ast operations
of law, having a present effect, removed: that the administra-
tion of law in the courts of justice, should alibr<I a remedy for
the right, according to the original contract; which nothing, as
already stated, but the free, voluntary, and uucontrouled act
of the i)arty himself should be held to discharge — In short,
that creditors who had already borne their share of suffering,
under the common calamity of war, with all its train of inci-
dental evils, including the loss of trade and business, as well
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OBSTRUCTION OF JUDICIAL REMEDIES. 285
as the want of their money, should on tlie return of peace, find
their just riffhts, at least, entire; in the state in ./hich they
left them; witli the same means of making them eftectual;
and without any obstruction, or cause of delay, so far an
depended on the law,^
On the other hand, Mr. Mii<;donald said that the United
States might set up that tlie debt was uot bona fide contracted;
that the debtor was insolvent, or that for other cause the debt
could not be paid; or that the loss had been occasioned by
manifest delay or negligence or willful omission of the claim-
ant. But, while these things might be alleged in opposition
to liability ucder the treaty, tlie presumption was in favor of
tlie good faith of the transaction and the solvency of the
debtor, which would be assumed until disproved. "The case,''
he said, "must be a very strong one and clearly made out to
give power to the presumption that if the law had been free,
coercion would not have been efl'ectual." He also rejected any
general requirement of an application to the courts, in order
to test the possibility of recovery in the ordinary course of
judicial proceedings, saying that that was a question to be
determined by the commissioners as they might deem most
conducive to justice, and that the claimant was not bound to
attem[)t a partial recovery if there seemed to be impediments
to his obtaining full compensation in the ordinary course.
The 'notes" of Mr. Macdonald were communicated by the
American commissioners to Charles Lee, Attorney-General of
the United States, who on the 1st of the following October
replied in some "remarks."
Whatever color or support the terms of the
^oTtM^ * treaty may have lent to the general rules laid
down in the "notes" of Mr. Macdonald, they
excited a very strong antagonism on the part of the American
commissioners. So far as the question of applying to the
courts was concerned, the American commissioners had before
them the example of the commission then sitting in London
under the seventh article «>f the treaty. Claimants against the
British Government before that commission had been required
to pursue their remedies in the courts by prosecuting their
causes to a final conclusion, whether for complete or partial re-
covery, before the lords commissioners of ap])eal, notwithstand
ing that many of the doctrines enforced by the lords commis-
sioners were not in harmony with the principles enforced by the
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286 INTERNATIONAL ARBrrRATIONS.
board. Moreover, by a decision delivered at the February
terra, 1796, in tbe case of Ware v, Hylton,' the Supi'eme Court
of tlie United States had decided (though tlie decision was
not known to Mr. Macdouald when he prepared his" notes") that
tlie fourth article of the treaty of peace enabled British cred-
itors to recover debts previously contracted to them by citizens
of the United States, notwithstanding the fact that the debt
had been paid into the Qtato treasury during the war under
the authority of a State law of sequestration. This cast*,
arose upon the sequestration act of Virginia passed October
20, 1777, which, as was shown by (;ases before the commission-
ers in Phila<le]phia, had been one of the most mischievous in
obstructing the execution of the fourth article of the treaty
of peace. The circuit court of the United States for the
district of Virginia, holding the act to be valid, had decider!
that a debt which had been paid under it into the treasury of
Virginia could not be enforced by the creditor. The Supreme
Court on writ of error reversed the judgment of the circuit
court, on the ground that the act was in conflict with the
treaty, which was, under the Constitution of the United States,
the supreme law of the land.
The practical diflBculty of executing the sixth
PracUoai IMl&eiiitieB. article, unless good fiiith in the original trans-
action and continued solvency of the debtor
were presumed, became more apparent »s the business of the
board progressed. The t laims presented consisted largely of
merchants' accounts, and one case was cited as an exam])le in
which the claim was founded on retail debts alleged to be due
from several thousand persons. It became obvious that if
each case were examined on its merits — the course which the
rules proiK)sed in the "notes'' of Mr. Macdonald were designed
to avoid — the existence of the board must be indefinitely pro-
longed and its labors very great.
On the other hand, the amount of the claims submitted to
the board was very large and daily increasing, doubtless far
exceeding the total anticipated by either party to the treaty:
and the war that had intervened since the deb! s were contracttMl
had been attended in America with great injury to private for-
tunes. Unless the merits of each case were thoioughly ex
amined, it was clear that the Government of the Uniteil States
' 3 Dallas, 199.
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OBSTRUCTION OF JUDICIAL REMEDIES. 287
would be visitod, practically, with the penalty of paying all
private debts whose loss had been octcasioiied by the war, in
addition to those whose recovery had been defeated by legal
inii)edinients.
On the 6th of August 1798 the board took
Cnimingham'B Case, up tbe case of William CuDDingham & Co., to
which reference has heretofore been made.
The claim was based on various lawful impediments existing
in Virginin. The ngent of the United States maintained (1)
that there were then no legal impediments in Virginia to the
recovery of the debts; (2) that if such impediments had for-
njerly existecl the chiimants were bound to show, by evidence
of the solvency of the debtors at the time when such im))edi-
ments were in operation, that they could have recovereil pay-
ment if the legal impediments had not ])reveuted; (3) that
debts described as doubtful in lists made up in 1775, and not
alleged to have since become good, ought not to be admitted
by the board. The last point the board unanimously sustained.
The first and second ])oints were decided in favor of the claim-
ants; the commissioners, Mr. Fitzsimons dissenting, resolving
that there were lawful impediments in the case, and that to
such impediments all losses incurred through the lapse of time,
the loss of legal evidence, insolvency of debtors, or other cause
which occurred during the operation of the impediments, were
prima facie to be ascribed; and that it was for the United
States to show that the losses occurred from other causes. At
this time Mr. Fitzsimons was the only American comniissioner,
Mr. Innes having died four days previously, and his suc-
cessor, Mr. Sitgreaves, who did not appear at the board till
the 28th of August, not having as yet been appointed.
On the 18th of December 1798 the case of
AUowanw of Inter- vsTiUiam Cunningham & Co. came up in
another aspect, on a claim for interest on the
debts during the war. This claim was opposed both by the At-
torney-General and the agent of the United States on the gen-
eral ground that interest should not be allowed during the war.
The board however resolved, Mr. Fitzsimons and Mr. Sit-
greaves dissenting, that interest ought to be awarded ^'accord-
iug to the nature and import, express or implied, of the several
contracts;" but that in so deciding against a general objection
to the i)ayment of interest the board ''did not preclude, but
necessarily saved all objections to the payment of interest
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288 INTERNATIONAL ARBITRATIONS.
which may arise out of the contract, or other special circam-
stances of the case.''
Meanwhile, the affairs of the commission
Impending CrisiB. seem to have been approaching a crisis. Much
of tlie time of the board was consumed in the
discussion of general principles apart from individual cases,
and early in 1799 an impression began to prevail that there
would soon be a rupture. On the 5th of February Mr. Picker-
ing, who was then Secretary of State, informed Mr. King,
minister of the United States in London, that differences
among the commissioners doubtless would cause a suspension
of their proceedings. The claims, he said, not only immensely
surpassed any amount that was contemplated by the United
States, but were advocated on principles which where quite
inadmissible, since they in effect made the United States the
debtor for all the outstanding debts due to British subjects
and contracted before the treaty of peace.
On the 19th of February 1799, just two
Cawof BUhopinglis. weeks alter Mr. Pickering wrote to Mr. King,
the first open breach in the board occurred.
It took pla<!e over the claim of the Right Rev. Charles Inglis,
Bishop of Nova Scotia, for debts due on bonds. The claimant,
who was born in Ireland in 1734, came to America about 1759,
and in 1765 became assistant rector of Trinity Church, in the
city of New York. In 1775 he wrote, in reply to Paine's Com-
mon Sense, a pamphlet-^ which was burned by the Sons of Lib-
erty. After the Declaration of Independence he refused to
accede to Washington's request to omit the prayer for the King
and Queen from the service, and in August 1776 closed his
church and retired to Flushing, which was then in the posses-
sion of the British. After Washington's defeat on Long Island
he followed the royal army into New York, and in the follow-
ing year was chosen as rector of Trinity. Subsequently he
served as chaplain of a battalion of New Jersey volunteers,
and on the evacuation of New York in 1783 went to Halifax.
On the 22d of October 1779 the legislature of New York
passed an act of attainder and confiscation by which the
claimant and many other British subjects, including the Earl
' Am. Stat-o Papers, For. Rel. IT. 383.
2 Plain Truth Addressed to the Inhahitants of America; Containiu};
Remarks on a Late Pamy)hlet,intithMl Common 8e«8f; * ♦ * By Can-
didus. Philadelphia, 1775. See New York Tivies, May 2, 1897.
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OBSTRUCTION OF JUDICIAL REMEDIES. 289
of Dnnmore, Governor Tryon, and Sir Henry Clinton, who
were described as ^'persons holding or claiming property
within this State," were attainted of high treason for adhering
to His Britannic Majesty, and their estates, real and personal,
declared to be forfeited and confiscated.^
The case of Bishop Inglis first came before the board for de-
cisive action on three objections made by the agent of the
United States:
1. That the claimant, having been attainted by an act of the
legislature passed before the peace on acconnt of his adherence
to the King and being of that description of persons known as
loyalists or refugees, did not possess a character entitling him
to apx>ear before the board.
2. That the debts due to him having been confiscated, he
was not a creditor within the meaning of the fourth article
of the treaty of peace, but came only within the recommenda-
tory provisions of the fifth article, of which the board had no
cognizance.
3. That he was guilty of manifest negligence in not having
proceeded for the recovery of his debts and was bound still to
proceed at law for that purpose, having a remedy before the
board only for what he should be unable to recover by ordi-
nary legal process.
On the 2l8t of May 1798 the commissioners unanimously
decided the first and second points in favor of the claimant.
The third point they reserved for further consideration. After
several special arguments and much discussion it came up
again on the 19th of February 1799, when the majority of
the commissioners declared it to be clearly their opinion,
from the evidence before the board, ^Hhat at, and before the
date of the treaty of amity, the claimant could not have recov-
ered in the ordinary course of justice, and had not therefore
been guilty of negligence in not proceeding for that purpose;''
that "from the terms of the sixth, article, and the inconsistency
of the contrary position (as it appeared to them) with the whole
meaning and object of that article, the claimant was not now
obliged to go through a course of judicial proceedings, for the
purpose of trying the experiment, whether the courts would
1 Laws of the State of New York (ed. 1886), I. 173. The act specifiefl
among thoee attainted ^'Charles Inglis, of the said city [of New York],
clerk, and Margaret his wife."
5627 ^19
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290 INTERNATIONAL ARBITRATIONS.
decide differently from the decisions which had been given pre-
ceding the treaty of amity ;" and that, by the provisions of that
treaty, "a right to 'full and adequate' compensation from the
United States vested in those individuals, whose cases were
then within the description it contained; a right not contingent,
or fluctuating on future circumstances, but perfect and entire;
to be carried into effect, not according to the precarious result
of diflferent experimental proceedings, in their nature dilatory,
and tending from tlie costs of litigation, and the protraction of
dispute, to an increase of the evil; but, by one simple and
definitive course of remedy, prescribed jointly by the two na-
tions, in the spirit of friendship and pea<3e, for the purpose of
speedily putting an end to the only remaining cause of irrita-
tion and discontent; and to be exclusively administered by
arbitrators, whom they have mutually chosen, and invested
with ample powers, for that wise and amicable purpose.''
In order to prevent a vote on this resolution
Withdrawal of Messrs. Fitzsimons and Sitgreaves withdrew,
mencan om- ^.ij^j,jji„g ^j^g^^ ^jj^y y^^^e entitled to do so
under the provision of the treaty which re-
quired the presence of ''one of the commissioners on each
side, and the fifth commissioner," to authorize the transaction
of business. When the majority offered an explanatory reso-
lution to the effect that the resolution which tbey had just
offered '* did not affect the case, where there was no satisfac-
tory evidence, that the claimant could not at the date of the
treaty of amity, recover a full and adequate compensation, in
the ordinary course of judicial proceedings," Messrs. Fitz-
simons and Sitgreaves again withdrew. They seceded again
on the 2Gth of February, when the majority, with reference to
the case of Bishop Inglis, offered a resolution that each of the
five members of the board was " an arbitrator upon oath, to pro-
ceed diligently, and decide all questions, whether of interpre-
tation or of fiict, with perfect impartiality, and without any
regard to Ids original appointment, or the manner in which the
opinion he is bound in conscience to give, may aff'ect the interest
of the parties concerned." Thus, on the question of the duty
of the claimant to pursue judicial remedies, there came about
a complete deadlock.
Nevertheless, the board, in spite of several
*" In ^^ further interruptions, continued in session for
two months longer, a few claims being allowed
and some dismissed. But in July 1799 its meetings were finally
Digitized by LjOOQIC
OBSTRUCTION OF JUDICIAL REMEDIES. 291
suspended. On the 9th of that mouth the commissioners took
up the claim of Andrew Allen, based on the operation of an
act of the legislature of Pennsylvania of March 6, 1778, attaint-
ing him and certain other persons, as ^< subjects and inhabi-
tants* of the State of Pennsylvania," for the crime of high
treason, in having, ** contrary to the allegiance they owe to the
said state, joined and adhered to • • * . the army of the King
of Great Britain."^ The agent of the United States objected
to the claim, on the ground that, as the claimant was an inhab-
itant of the State of Pennsylvania at the date of the Declara-
tion of Independence, he was a subject of that State; that ''in
fact, the United States were independent so early as 1775, and,
on the ever glorious and memorable 4th of July 1776 they
solemnly and formally declared to the world that they were
independent;" that "the formal acknowledgment of his Bri-
tannic Majesty added nothing to their real Independence, and
if the treaty of peace had never been made, the Unit^ States
would have actually continued an independent nation, though
at war with Great Britain at this moment;" and that, "though
Andrew Allen, after being a subject of Pennsylvania, joined
the British forces in December 1776 and returned to his nat-
ural allegiance, this did not dissolve the right of Pennsylvania
to hold him as a subject, and as its subject to punish him."
The British commissioners maintained that Allen, being a nat-
ural-born British subject, and being found on the side of his
native allegiance at the peace, had not been deprived of that
character, and was entitled to appear before the board as a
claimant; and they offered a resolution, drawn by Mr. Mac-
donald, to that effect. To prevent a vote on this resolution
the American commissioners withdrew. On the 16th of July,
the resolution being again under discussion, Mr. Macdonald
expressed the opinion, in which Messrs. Eich and Guillemard
are said to have concurred, that the United States stood, from
the beginning of the Revolution down to the treaty of peace,
in a state of rebellion toward Great Britain, whatever may have
* As stated in the act, Allen ha<l been a "Member of the Congress of the
thirteen United Colonies, now States, of America, for Pennsylvania."
When the act was passed the British forces held Philadelphia, and it was
recited that the persons attainted 'S'^et remain with the said enemies in
the city and county of Philadelphia, where they daily commit divers trea-
sonable acts, without any sense of honour, virtue, liberty, or fidelity to
this State."
^ Laws of the Commonwealth of Pennsylvania; Dallas' ed., 1. 751.
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292 INTERNATIONAL ARBITBATI0N8.
been their relation toward otber powersJ On the annoonce-
inent of this declaration Mr. Sitgreaves withdrew from the
board. Mr. Fitzjsimons continued his attendance during the
day, but on the following day did not return. On the 19th of
July the two American commissioners addressed to Messrs.
Macdonald, Eich, and Guillemard a brief communication, stat-
ing that on a review of what had occurred at the meetings and
in the proceedings of the board, partly on a recent occasion,
it was improper for them, under the existing circumstances, to
give their further attendance. They promised in a future com-
munication more fully to explain the motives upon which this
determination had been taken.
On the 20th of July the three commissioners
eetingan ^ whom the above communication was ad-
AiiptnT6>
dressed made a reply, deprecating the with-
drawal of the American commissioners, and adverting to the
fact that Mr. Macdonald had lately given notice in the board
of an intended motion in relation to an alleged improper pub-
lication of certain papers touching the case of Bishop Inglis.
The American commissioners answered oji the 22d of July,
saying that the publication referred to was made in the first
instance by the general agent for the claimant, and stated that
they were willing to meet the board for the discussion of that
subject, as well as for the additional purpose of concluding an
award in another case, that of llanbury. On the 23d of July
Messrs. Macdonald, Rich, and Guillemard answered the Amer-
ican commissioners, charging tbe American agent with the
publication in the Inglis case, and concluding as follows:
"And now, gentlemen, we have only to say that, after what
has passed on this and other occasions, you can not but per-
ceive from the amicable tone and object of our correspondence
and the suggestion which we have now in particular submitted
to you, how little we suffer ourselves to be actuated by per-
sonal or national feelings against the straightforward course
of our duty. We have but one object, and with that object
we suffer no inferior considerations to interfere." An arrange-
ment was made for the meeting of the commissioners on the
31st of July to consider the controversy respecting the pub-
lication in the case of Bishop Inglis, but, as might have been
I Messrs. FitzsimoDS and Sitgreaves to Messrs. Macdonald, Rich, and
Guillemard. September 2, 1799. (MSS. Dcpt. of State.)
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OBSTRUCTION OP JUDICIAL REMEDIES. 293
anticipated from the character of the subject which they met
to discuss, the bitterness of feeling was only intensified, and
the sessions of the board were not resumed. On the 2d of
September 1799 the American commissioners transmitted to
Messrs. Macdonald, Bich, and Guillemard the promised expla-
nation of the causes of their abstaining from attendaDce. This
explanation was acknowledged by the three commissioners
to whom it was addressed in a letter bearing date the 4th of
September 1799, beginning as follows: "We had yesterday
the honor of receiving your letter of 55 pages, dated the 2d
instant," etc. On the 30th of the same month they addressed
to the American commissioners a still further reply, beginning
as follows: "Gentlemen, your suspension of our oflScial busi-
ness, having left us at leisure for inferior occupations, we have
again perused your long letter of the 2d instant." These let-
ters were both undoubtedly drawn by Mr. Macdonald, and
were largely devoted to the vindication of his personal conduct
at the board. In a similar vein Mr. Eich, in announcing his
intention to return to England, in consequence of the conduct
of the American commissioners, in a letter to his colleagues,
said: "From the unceasing labor of Mr. Macdonald and the
energetic exercise of his superior talents, the steady and warm
support of the fifth commissioner, and the aid which my feeble
talents allowed me to give, from the perfect harmony that sub-
sisted between us resulting from habits of daily communication
and mutual confidence, the great business we were charged
with might have advanced near to its conclusion had the other
gentlemen been actuated to an equal degree by motives of
honour, candour, and impartiality."
On the 4th of September 1799 Mr. Picker-
^* 'ti* ^"^ announced to Mr. King the dissolution of
the board, and, observing that there was no
probability that the business could ever be accomplished by
the present members, said: "Independently of the opinions
strongly expressed, which it would not be easy to retract,
there appears to be an incompatibility of temper; if I am
rightly informed, it would be difficult for any set of American
commissioners to act harmoniously with Mr. Macdonald unless
they possessed such meek and yielding dispositions as to sub-
mit implicity to his dogmas. Such meekness is in his col-
leagues, Mr. Rich and Mr. Guillemard; who though they
Digitized by LjOOQIC
294 INTERNATIONAL ARBITRATIONS.
appear, and I verily believe them to be, worthy men, have not
in a single instance dissented Ax>m Mr. Macdonald or started
an objection to anything he has advanced; so that it would be
perfectly equal, as to the final issue of their proceedings,
whether they continued members of the board, or that Mr.
Macdonald were authorized on every question to give three
votes. It has even appeared, as I have been informed, that
Mr. Guillemard, who, as an umpire should have kept himself
aloof, and formed his opinions upon discussions before the
board, has been so little aware of what propriety and dignity
imposed on him as a duty, that he has entered into the pri-
vate deliberations of the two British commissioners, and come
to the board with all the decisive prepossessions which such
private^ partial consultations were calculated to produce. If
I am rightly informed, Mr. Macdonald is not only thus pre-
dominant, but that, towards the American commissioners he
has been in the highest degree overbearing and arrogant, and
not very delicate towards-our country." '
Lord Grenville readily admitted that in his
^^ !iu opinion the British commissioners had pushed
their construction of the treaty too far in the
case of Bishop Inglis. There was not, he thought, sufficient
evidence that the claimant could not have recovered his debts
in the ordinary course of judicial proceedings. On the other
hand, he declared that the action of the American commis-
sioners would in great measure, if not wholly, defeat the ends
of the treaty. Early in the proceedings of the commission at
London, under Article VII. of the treaty, the British commis-
sioners had asserted the right to withdraw to prevent the
decision of cases which they did not consider to be within
the jurisdiction of the board; but Lord Chancellor Lough-
borough, to whom the question was referred, overruled them,
and they continued to give their .attendance. Lord Grenville
therefore protested against the course of the American com-
missioners at Philadelphia, and directed the British commis-
sioners in London to suspend proceedings under Article VII.
until the difficulty under Article VI. should be settled; and
he directed the British minister at Philadelphia to endeavor
to conclude an agreement on the subject.^
'Am. State Papers, For. Rel. II. 383. See, also, Mr. Pickering to Mr.
King, October 4, 1799, Id. 384.
« Am. State Papers, For. Rel. I. 51; II. 390, 391.
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Obstruction of judicial remedies. 295
On the 3l8t of December 1799 Mr. Picker-
^^PiS^^"" ing sent full instructions to Mr. King for the
purpose of proposing a new convention in
explanation and execution of Article VI.; and, among the
principles on which such a convention should be framed, he
specified the rule that it must api)ear that by the operation
of lawful impediments the claimant had sustained a loss which
he could not "at the time of the exhibition of his claim" re-
cover in the ordinary course of judicial proceedings. lie also
informed Mr. King that it had been deemed expedient to send
Mr. Sitgreaves to London to facilitate the conclusion of the
negotiations.^
Early in April 1800 Mr. King presented to Lord Grenville
a draft of a convention drawn in conformity with his instruc-
tions.'
Lord Grenville had little hope of the two
Protast of Lord
G viU governments ever agreeing on a construction
of the article, and continued to protest against
the secession of the American commissioners. Keferring to
the suspension of the board at Philadelphia, he said it hap-
pened that, in choosing a commissioner by lot, the lot under
Article VI. fell on a British subject, while that under Article
VII. fell on a citizen of the United States. In the course of
their proceedings the majorities of both commissions formed
their decisions on principles adverse to the opinions of the
government against which the claims were preferred. "The
awards of the commission under the seventh article have,
1 Am. State Papers, For. Rel. II. 384-485. Mr. Sitgreaves was promised,
when he went to London, the contiuiianco of his salary as a commissioner
at the rate of £1,000 a year and the expenses of his residence in
Europe and his journey to and fro. He returned to the United States on
Jnne 10, 1801, and his agent drew for his quarter's salary to June 30. Mr.
Madison, who was then Secretary of State, conceiving that, as the com-
mission under Article VI. had been suspended, Mr. Sitgreaves had no claim
for salary after his return, declined to allow anything thereafter, but told
Mr. Sitgreaves that, if he would state his account, deducting salary from
June 10 to June 30, and including his expenses, it should be paid. Mr.
Sitgreaves refused to do so, ronsideriug that he was entitled to the con-
tinuance of his salary under Article VI. till that article was finally super-
seded by the convention of Januar}- 8, 1802. In 1830 Mr. Sitgreaves's heirs,
who had put in a claim, were allowed his salary from April 1 to June 10,
1801, and his expenses. Congress appropriating therefor $10,445.56. (House
Report 54, 20 Cong. 2 sess. ; 6 Stats, at L. 446.)
« Am. State Papers, For. Rel. II. 394-398.
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296 INTERNATIONAL ARBITRATIONS.
nevertheless," said Lord Grenville, "been faithfully executed
by the British Government. The temporary difficulties which
arose in the execution of that commission led immediately to
amicable explanation between His Majesty's Government and
the minister of the United States ♦ ♦ ♦ ; and considera-
ble sums have actually been paid to American claimants in cases
where the award of the commissioners has rested on doctrines
which are decidedly held to be erroneous, and which would not,
therefore, have been recognized in any transaction with a foreign
state. In America, a contrary course has been pursued. The
two commissioners nominated on the part of the ITDited States
to the commission under the sixth article have finally claimed
the right to invalidate, by their dissent, both the principles and
the effect of the decisions of the majority, and have at length,
by completely withdrawing from the board, endeavored as far
as in them lay, to arrest all its proceedings. * * * It was
neither required nor even imagined that the opinions of either
commission could be unanimous on points on which the two
Governments had found it impossible to agree. In both of
them possible differences of opinion were foreseen, and they
were provided for in both by the stipulation which gave full
force and validity to the acts of the majority." The secession
of the American commissioners made it the duty, he said, of
the Government of the United States to appoint new ones.^
To the note of Lord Grenville, John Mar-
MazBhaU'i Sepiy. shall, who had succeeded Mr. PiDkering as Sec-
retary of State, replied that the Government
of the United States understood the treaty differently. The
provision declaring the decision of the board to be in all cases
final and conclusive was not understood to authorize "the arbi-
ters to go out of the special cases described in the instrument
creating and limiting their powers. The words ^all cases' only
mean those cases which the two nations have submitted to
reference. These are described in the preceding part of the
article, and this description is relied on, by the United States,
as constituting a boundary, within which alone the powers of
the commissioners can be exercised. This boundary has, in
our judgment, been so totally prostrated, that scarcely a trace
of it remains.'' While admitting that the decision of a minor-
ity was binding by the very terms of the treaty, Marshall
^ Lord Grenville to Mr. Ring, April 19, 1800, Am. State Papers, For.
Bel. II. 398.
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OBSTRUCTION OP JUDICIAL REMEDIES. 297
declared that <^it was not until a majority of the Board had
proceeded to establish a system of rules for the government of
their future decisions, which, in the opinion of this Government,
clearly comprehended a vast mass of cases never submitted to
their consideration, that it was deemed necessary to terminate
proceedings believed to be totally unauthorized, and which
were conducted in fcerms and in a spirit only calculated to
destroy all harmony between the two vations.'^ He therefore
instructed Mr. Eing,if it should be found impossible to negoti-
ate a reasonable explanatory article, to endeavor to agree on a
gross sum to be received as full compensation for all the claims
of the creditors.^
At one time Lord Grenville thought of send-
^*^^OT^t*' ^^ ^^^ ^^* "confidential characters" to America
for the purpose of facilitating the execution of
the treaty, with an eventual appointment as commissioners.
He was not inclined either to negotiate a new convention or to
discuss the question of a lamp sum. He at length decided,
however, very wisely, to try the latter alternative. In Decem-
ber 1800 Mr. King presented to him a paper in which it was
estimated that the claims against the United States would not
properly exceed £400,000.* This result was arrived at by assum-
ing that the amount of the debts due at the outbreak of the
war was equal to the average amount of British exports to the
colonies in one year prior to that event, which was estimated
at £2,311,498. From this amount Mr. King deducted one-half
on the score of what British creditors lost in consequence of
the insolvency of debtors, caused by the war and especially by
the operation of paper money, from the beginning to the end
of the conflict. This left £1,165,749. As in the majority of
States, including the large commercial towns, creditors had
experienced no material difficulty in recovering their debts, it
was reasonable, said Mr. King, to deduct half of that sum as
recovered since the war, leaving £677,874 unrecovered. To
this sum, however, he added interest, thus doubling it and re-
storing the amount due to £1,155,749. Of this he estimated
that creditors could, in the existing unobstructed course of jus-
tice, recover two- thirds, leaving not more than £400,000 due
from the United States.
1 Mr. Marshall to Mr. King, August 23, 1800, Am. State Papers, For. Bel.
11. 383, 386, 387.
'Am. State Papers, For. Rel. II. 390-400.
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298 INTERNATIONAL ABBITRATIONS.
By an analytical statement of the claims submitted to the
board in Philadelphia, it appears that their gross amount was
£5,638,692 8s. Id., which was calculated to be equivalent to
$24,809,969.37. It was admitted, however, that, as always
happens in such circumstances, the amounts of the several
claims were in many instances enormously exaggerated, and
the British Government offered to accept between a million
and two million pounds. On the 15th of June 1800 Mr.
Madison, who had become Secretary of State, instructed Mr.
King that not more than £600,000 would be paid,^ and, after
long and complicated negotiations in which John Anstey
assisted on the part of Great Britain,* the British Government
consented to accept that sum, if satisfactory terms could be
arranged for its payment, and recourse to the courts be secured
to creditors for the future.
Various projects of a convention on these
ConventiOTi ^ Jaiin- ^^^^^ i^^ere exchanged, but it was not until
January 8, 1802, that one was concluded. On
that day Lord Hawkesbury and Mr. King signed a convention
by which Article YI. of the treaty of 1794 was annulled, and the
sum of £600,000, payable at Washington in three equal annual
installments, and in money of the United States reckoned at
$4.44 to the pound sterling, was accepted in satisfaction of
what the United States might have been liable to pay under
that article.^ This sum, amounting to $2,664,000 was duly
appropriated and paid.* The Secretary of the Treasury was
authorized to cause the last installment to be paid in London.*
By Article XL of the convention, Article IV. of the treaty of
peace, so far as respected its future operation, was confirmed,
so that creditors on either side should in the future ** meet with
no lawful impediments to the recovery of the full value in
sterling money of their bona fide debts." **
lAm. state Papers, For. Rel. II. 389.
2 Am. Stat« Papers, For. Rel. II. 401-418.
3Am. 8tate Papers, For. Rel. II. 421-427.
"2 Stats, at L. 192; Am. State Papers, For. Rel. II. 62, 67.
»Act of March 3, 1805, 2 Stats, at L. 336.
« For appropriations to carry Article VI. of the treaty of 1794 into effect,
see the following acts: May 6, 1796, $80,808 (for Articles VI. and VII.), 1
Stats, at L. 460: March 2, 1799, $26,000, Id. 723; May 7, 1800, $52,556, 2 Id.
66; April 18, 1806, $7,750, Id. 389.
Digitized by LjOOQIC
OHAPTEE X.
THE EIGHTS AKD DUTIES OF NEUTEALS: COM-
MISSION UNDER ARTICLE VII. OF THE JAY
TREATY.
The first war between Great Britain and
twifowr P^ch ^r»"«® growing out of the French Revolu-
Decrees. ^^^^ ^^** characterized, as were other great
Euroi)ean straggles of the last and the begin-
ning of the present century, by exorbitant pretensions on the
part of the belligerent powers to regulate and control the trade
of neutrals. By a decree of the National Convention of May
9, 1793, the commanders of French ships of war and privateers
were " authorized to seize and carry into the ports of the repub-
lic, merchant vessels which are wholly or in part laden with
provisions, being neutral property, bound to an enemy's port,
or having on board merchandise belonging to an enemy.'' Mer-
chandise belonging to the enemy was declared to be "lawful
prize, seizable for the profit of the captor." Provisions, if
belonging to a neutral, were to be ''paid for at the price they
would have sold for at the port whither they were bound;" the
vessels, if neutral, were to be released as soon as the provisions
found on board should have been landed, or the seizure of the
merchandise effected; freight was in such case to be settlt*d
at the rate paid by the charterer, and proper compensation to
be granted by the tribunals for the detention of the vessels.
From this decree, however, the National (^/onvention, hopefully
looking to the United States as an *' ally" in the war, by another
decree of the 23d of May declared American vessels to be
exempt. In communicating these decrees to the Government
of the United States in September 1793 M. Genet, the French
minister, declared that the considerations which prompted the
second decree were, on the one hand, a disposition on the part
of France scrupulously to observe the treaties with the United
States^ and on the other ''the thorough confidence she has that
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300 INTERNATIONAL ARBITRATIONS.
the Americans will not abuse this privilege by carrying to her
enemies those productions by which they ought to assist in the
defense of a cause as much their own as hers." At the same
time he said he was ^'informed that the English Oovernment
have declared their determination to carry into the English
ports all the American vessels laden with provisions for the
ports of France." The French republic expected that the
United States would ^' hasten to take the most energetic meas-
ures to procure a recall of this decision ;" and if the measures
taken to that end should prove to be ** insufficient or fruitless,"
and the neutrality of the United States, as had previously
been the case, "serviceable" only to "the enemies of France,"
France would "exercise a very natural right in taking meas-
ures to prevent a consequence so injurious to her." ^
The determination of the British Govern-
^' ^ 1798°^ ment to which M. Genet referred was embodied
' in an order in council issued on the 8th of June
1793. By this order the commanders of His Majesty's ships of
war and privateers were authorized "to stop and detain all ves-
sels loaded wholly or in part with corn, flour, or meal, bound to
any port in France, or any port occupied by the armies of France,
in order that such corn, meal, or flour may be purchased on
behalf of His Majesty's government, and the ships be released
after such purchase and after a due allowance for freight," or
in order that the masters of such ships might, on giving due
security, "be permitted to dispose of their cargoes of corn,
meal, or flour, in the ports of any country in amity with His
Majesty." *
1 M. Genet to Mr. Jeflfereon, Sec. of State, September 27, 1793. (Am. State
Papers, For. Rel. I. 243-244.)
«The text of the order is as follows:
"George R. (l.8.)
^'Additional inatructions to the Commanders of His Majesty's Ships of War,
and Privateers that have or may have Letters of Marqtie against France.
Given at our Court at 8t. James's^ the Eighth Day of June, 1793, in the
Thirty-third Tear of our Reign.
"I. That it shall be lawful to stop and detain all Ships loadon wholly or
in part with Com, Flour, or Meal, bound to any Port in France, or any Port
occupied by the Armies of France, and to send them to such Ports as shall
be most convenient, in order that such Corn, Meal, or Flour may be pur-
chased on behalf of His Majesty's Government, and the Ships be released
after such Purchase and after a due Allowance for Freight; or that the
Masters of such Ships on giving due Security, to be approved of by the
Court of Admiralty, be permitted to proceed to dispose of their Cargoes
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NEUTRAL RIGHTS AND DUTIES. 301
These instructious, though dated the 8th of June, were not
issued to the admiralty till the 28th of the month.^ The
British Government assumed to justify them on the ground
that " by the law of nations, as laid down by the most modern
writers," and particularly by Yattel, all provisions were to be
considered as contraband, and as such liable to confiscation, in
the case where '^ the depriving an enemy of these supplies is
one of the means intended to be employed for reducing him
to reasonable terms of peace." '^The actual situation of
France," said Great Britain, " is notoriously such as to lead
to the employing this mode of distressing her by the joint
operations of the different powers engaged in the war; and the
of Corn, Meal, or Flour, in the Porte of any Country in Amity with His
Majesty.
''II. That it shall be lawful for the Commanders of His Majesty's Ships
of War and Privateers that have, or may have Letters of Marque against
France to seize all Ships, whatever be their Cargoes, that shall be found
attempting to enter any Blockaded Port, and to send the same for Con-
demnation, together with their Cargoes, except the Ships of Denmark and
Sweden, which shall only be prevented from entering on the first attempt,
but on the second shall be sent in for Condemnation likewise.
''III. That in case His Majesty shall declare any Port to be Blockaded,
the Commanders of His Majesty's Ships of War and Privateers that have,
or may have Letters of Marque against France, are hereby enjoined if
they meet with Ships at Sea, which appear from their Papers to be destined
to such Blockaded Port, but to have sailed from- the Ports of their
respective Countries before the Declaration of the Blockade shall have
arrived there to Advertise them thereof, and to Admonish them to go to
other Ports, but they are not to molest them aft€r>vards, unless it shall
appear that thej^ have continued their Course with intent to enter the
Blockaded Port, in which Case they shall be subject to Capture and Con-
demnation; as shall likewise all Ships, wheresoever found, that shall
appear to have sailed from their Ports, bound to any Port which His
Majesty shall have declared to be Blockaded, after such Declaration shall
have been known in tbe Country from which they sailed; and all Ships,
which in the coarse of the Voyage shall have received Notice of the
Blockade, in any manner, and yet shall have pursued their Course with
intent to enter the same.
The exception in the second paragraph of this order in favor of ships of
Denmark and Sweden was based on special treaty stipulations with those
powers. (Am. State Papers, For. Kel. I. 240.)
The text above given is taken from an apparently authentic copy of the
order in the records of the commission under Article VII. It substantially
accords with thotext printed in Am. State Papers, For. Rel. I 240.
^Mr. Pinckney to the Sec. of State, July .5, 1793. (Am. State Papers,
For. Rel. I. 241.)
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302 INTERNATIONAL ABBITRATION8.
reasoning which in these aathors applies to all cases of this
sort, is certainly much more api)Iicable to the present case, in
which the distress results from the unusual mode of war
employed by the enemy himself, in having armed almost the
whole laboring class of the French nation, for the purpose of
commencing and supporting hostilities against all the govern
ments of Europe; but this reasoning is most of all applicable
to the circumstances of a trade, which is now in a great meiis-
ure entirely carried on by the actually ruling party of France
itself, and which is therefore no longer to be regarded as a
mercantile speculation of individuals, but as an immediate
operation of the very persons who have declared war, and are
now carrying it on against Great Britain. On these considera-
tions, therefore, the powers at war would have been i)erfectly
justifiable if they had considered all provisions as contraband,
and had directed them, as such, to be brought in for confisca-
tion. But the present measure pursued by His Majesty's
Government, so far from going to the extent which the law of
nations and the circumstances of the case would have war-
ranted, only has i)revented the French from being supplied
with corn, omitting all mention of otJier provisions; and even
in respect to corrt, the regulation adopted is one which, instead
of confiscating the cargoes, secures to the proprietors, suppos-
ing them neutral, a fall indemnity for any loss they may
possibly sustain."^
On the other hand the United States declared
state ^ *^^* ^^® position that provisions were contra-
band *'in the case where the depriving an
enemy of these supplies is one of the means intended to he em-
ployed for reducing him to reasonable terms of peace,'^ or in any
case but that of a place actually blockaded, was *< entirely new;"^
that reason and usage had established " that, when two nations
go to war, those who choose to live in ])eace retain their natural
right to pursue their agriculture, manufactures, and other ordi-
nary vocations; to carry the produce of their industry, for
exchange, to all nations, belligerent or neutral, as usual; to ^o
and come freely, without injury or molestation; and, in short,
that the war among others shall be, for them, as if it did
not exist." To these mutual rights nations had allowed one
^Mr. Hammond, British minister, to Mr. Jeflerson, Sec. of State, Si^p-
tember 12, 1793. (Am. State Papers, For. ]?el. 1. 240.) The word "coru ''
comprehended the seeds of cereals generally, as wheat, barley, rye, and
oata, and more especially wheat. (Fiske, Discovery of America, 1. 182.)
Digitized by LjOOQIC
NEUTRAL EIGHTS AND DUTIES. 303
exception — that of famishing implements of war to the bellig-
erents, or anything whatever to a blockaded place. Imple-
ments of war destined to a belligerent were treated as contra-
band, and were subject to seiznre and confiscation. Corn,
flour, and meal were n'^t of the class of contraband, and con-
sequently remained articles of free commerce. The state of
war between Great Britain and France furnished neither bel-
ligerent with the right to interrupt the agriculture of the
United States, or the peaceable exchange of its produce with all
nations. Such an act of interference tended directly to draw
the United States from the state of peace in which they wished
to remain. If the United States permitted corn to be sent to
Great Britain and her friends, and refused it to France, such an
act of partiality might lead to war with the latter power. If
they withheld sup|)lies of provisions from France, they should
in like manner be bound to withhold them from her enemies
also, and thus to close to themselves all the ports of Europe
where corn was in demand, or else make themselves a party to
the war. This was a dilemma into which no pretext for forcing
the United States could be found. Great Britain might,
indeed, "feel the desire of starving an enemy nation; but she
can have no right of doing it at our loss, nor of making us the
instrument of it." ^
For the purpose of regulating the execution
Order asto Freight ^^ ^^^ ^^^^^ . ^^ council of the 8th of June 1793,
End EzpeiiBee.
the admiralty adopted an order to the effect
that freight and reasonable expenses should be allowed to all
masters of neutral ships, if no mala fides or prevarication should
appear or be justly presumed or suspected. Demurrage how-
ever was allowed as a reasonable expense only where the pro-
ceedings of the captor were unjust, irregular, or injurious, or
where the ship was unduly detained.*
' Mr. Jefferson, Sec. of State, to Mr. Pinckney, minister to England,
September 7, 1793, (Am. State Papers, For. Rel. 1. 239) ; same to Mr. Ham-
mond, British minister, September 22, 1793 (Id. 240). See also Mr. Pinck-
ney to Lord Grenville, undated (Id. 449) ; Mr. Hammond to Mr. Randolph,
Sec. of State, April 11, 1794 (Ibid.) ; Mr. Randolph to Mr. Hammond, May 1,
1794 (Id. 450).
'^ The text of the order of the admiralty is as follows :
**Ordered, That freight and reasonable expenses shall be allowed to all
masters of neutral carrier ships, and be a charj^e upon the cargoes, whether
condemned or restored, or ordered for further proof of neutral property:
Provided altoays, That no mala fidea, or i)revarication, shall appear, or b^
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304 INTERNATIONAL ARBITRATIONS.
On the 6th of November 1793 a new order
^ V ^t^o ^ iii council was issued by which British ships
▼ember 6, 1798. ^ , , , . ,
of war and privateers were directed to "stop
and detain all ships laden with goods the produce of any col-
ony belonging to France, or carrying provisions or other sup-
plies for the use of any such colony," and to " bring the same,
with their cargoes, to legal adjudication in our courts of
admiralty.''*
By the doctrine of the British prize courts known as the
Eule of the War*of 1756, because it was first applied in that
war, all trade was forbidden to neutrals in time of war that
was not open to them in time of peace.*
justly preHumed, or suspected, on the part of any neutral master, and that
such neutral master shall make oath that such freights are not already
paid for, or engaged to be paid for by the owners of the said cargoes, in
view of every event of capture, or otherwise. Demurrage shall be allowed,
and considered as a reasonable expense, only in cases where the ship shall
be pronounced to have been unjustly seized and brought in for adjudica-
tion, or bulk broken, and his Majesty's instructions disobeyed, or where
there has been actual and wilful damage done, and misusage of persons or
property by the captor, or when the time of detention for the purpose of
unlivery of the cargo, or repairing such damage, shall exceed the time
specified in the charter party, or when the neutral master shall not refuse
or neglect to take away his ship upon bail offered to be given by the cap-
tors for freight, and reasonable expenses. That, where the value of com,
and naval stores, sold to his Majesty, shall be decreed to be paid to any
neutral claimant, the owner, in cases where such corn, provisions, and
other naval stores, by any treaty or particular stipulation, shall be held
to he not contraband, and so not confiscable, the captor who shall have
brought in such privileged ships and cargoes, in consequence of his
Majesty's orders and instructions, and who shall have given bail to be
answerable, upon delivery of the same, for freight and reasonable expenses,
in case that any shall be allowed, shall be discharged from his bail; but
that the freight, and such reasonable expenses, shall be decreed to be added
to the price of the cargo, and to be paid for by his Mi^esty to the neutral
owner, in cases of restitution, and in cases of condemnation shall be added,
in like manner, to the price of the cargo, and paid to the captor by his
Majesty.
'* Freights and reasonable expenses, where captors and claimants can
not agree, shall be referred to be settled by the deputy registrar, and
merchants appointed by the court; the report, nevertheless, shall be sub-
ject to revisal by order of the court, upon objections made by either party."
(Am. State Papers, For. Rel. I. 315.)
lAm. State Papers, For. Rel. I. 430; Mr. Randolph, Sec. of State, to Mr.
Hammond, British minister. May 1, 1794 (Id. 450).
"^See MadiHon's "Examination of the British doctrine which subjects to
capture a neutral trade not open in time of peace.'' (Madison's Works,
U. 229.)
Digitized by LjOOQIC
NEUTRAL RIGHTS AND DUTIES. 305
The *' literal purport" of the order of November 6, 1793,
'^ went to destroy all neatral trade with the French colonies,
even that which had been allowed in time of peace." ^
Under it and the order of the 8th of Jane many American
vessels were captured and, with their cargoes, taken before
the admiralty courts for condemnation or such other sentence
as the nature of the case and the terms of the orders might
seem to justify.
The order issued on the 6th of November
^ ""s^rrS' ^'^^^ ^*® ^^^ published till the 23d of the fol-
lowing month. On the 8th of January 1794 it
was superseded by a new order in council, by which the direc-
tion to seize and bring in for legal adjudication ^'all ships
laden with goods the produce of any colony belonging to
France, or carrying provisions or other supplies for the use of
any such colony," was modified so as to include (1) ships
^4aden with goods the produce of the French West India
Islands, and coming directly firom any port of the said Islands
to any port in Europe;" (2) ships ^Maden with goods the
produce of the said islands, the property of which goods shall
belong to subjects of France;" (3) ships ^' found attempting to
enter any port of the said islands, that is or shall be blockaded
by the arms of His Majesty or his allies;" (4) and "all vessels
laden wholly or in part with naval or military stores, bound to
any port of the said islands."^
1 Hildreth, History of the United States, IV. 481.
>The text of the order is as follows:
"Georob, B.
**lMtruoHans to the commanders of our 8kip$ of war and privateora that have
or may have Utters of marque against France* Given at our Court at Si,
James's, the 8ih day of January, 1794,
. " Whereas by oar former instruction to the comiuanders of oar ships of
war and of privateers, dated the 6th day of November, 1793, we signified
that they shoald stop and detain all ships ladeu with goods and produce
of any colony belonging to France, or carrying provisions or other sup-
plies for the nse of any snch colony, and shoald bring the same with their
cargoes to legal adjudication : We are pleased to revoke the said instruc-
tion, and in lieu thereof, we have thought fit to issue these our instructions,
to be duly observed by the commanders of all our ships of war and priva-
teers that have or may have letters of marque against France.
"1. That they shall bring in for lawful adjudication all vessels, with
their cargoes, that are laden with goods the produce of the French West
India Islands, and coming directly from any port of the said islands to any
port in Europe.
**2, That they shall bring in for lawful a<ljndication all ships with their
5627 20
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306 INTERNATIONAL ARBITRATIONS.
While the order of January 8, 1794, was far from conceding
all that the United States claimed to be due under the law of
nations, yet it served to allay the excitement which the orders
of 1793 had produced, and to cause the abandonment of various
retaliatory measures which had been undertaken.^ It varied
the instructions of the bth of November (1) in substituting
"the French West India Islands" for "any Colony of France,"
of which there were some not islands and others not West
India Islands; (2) in limiting the seizure to produce "coming
directly " from any port of those islands ; (3) in limiting seizures
to vessels bound from those islands to any port "in Europe,"*
Of all the limitations the last was the most important, since it
permitted the importation of the produce of the French West
Indies into the United States, and its exportation from thence
to European ports. This indirect trade, though it involved
the payment of duties in the United States as the price of its
existence, soon assumed large proportions.^
In the instructions given by Edmund Ban-
Jay's instrnctions. dolph, as Secretary of State, to Mr. Jay, on
the 6th of May 1794, with reference to the
latter^s special mission to England, the first topic discussed
cargoes, that are laden with goods the produce of the said islands, the
property of which goods shall belong to subjects of France, to whatsoever
ports the same may be bound.
'^3. That they shall seize all ships that shall be found attempting to
enter any port of the said islands, that is or shaU be blockaded by the
aims of His Majesty or his allies, and shall send them in with their car-
goes for adjudication, according to the terms of the second article of the
former instructions, bearing date the 8th day of June, 1793.
"4. That they shall seize all vessels laden wholly or in part with Daval
or military stores, bound to any port of the said islands, and shall send
them into some convenient port, belonging to his Majesty, in order that
they, together with their cargoes, may be proceeded against according to
the rules of nations." (Am. State Papers, For. Rel. I. 431.)
1 By a joint resolution of March 26, 1794 (1 Stats, at L. 400), Congress laid
an embargo for thirty days on all ships and vessels in ports of the United
States bound for any foreign port or place. By a resolution of April 18
(Id. 401) this embargo was continued until May 25. (See Am. State Papers,
For. Rel. I. 474. ) By an act of Juno 4, 1794 (1 Stats, at L. 372), to continue
in force till fifteen days after the commencement of the next session of
Congress, the President was authorized to lay a similar embargo whenever
in his opinion the public safety should require it. By an act of May 22,
1794 (Id. 369), the exportation of munitions of war was prohibited for a
year, and their importation firee of duty was authorized for two years.
-Madison's Works, II. 313.
'^It was put an end to in 1806 by the decision of Sir WiUiam Soott in the
case of the Etufcx. (Adams's History of tbe United States, III. 44, 63, 416.)
Digitized by V^OOQlC
NEUTKAL RIGHTS AND DUTIES. 307
was that of 'tbe vexations aud spoliatious committed on our
commerce by the authority of instructious from the British
Government." For injuries committed under the order in
council of the 8th of June 1793, Mr. Jay was instructed that
one of the principles on which he was to demand compensation
was "that provisions, except in the instance of a siege,
blockade, or investment, are not to be ranked among contra-
band." The order of November 6 "filled up the measure of
depredation." "Compensation for all the injuries sustained,
and captures, will," said Mr. Randolph. " be strenuously pressed
by you."^
Mr. Jay made his first formal representation
Jay-OrenidUe Hego- ^^ j^^^^ GrenviUe on the 30th of July 1794. In
this representation he abstained from particu-
larizing or entering into the merits of cases, but proceeded on
the general ground that " under color of His Majesty's author-
ity and commissions," " great and extensive injuries" had been
done to American merchants, for which reparation could be
> '^Compensation for all the injuries sastained, aud captures, will be
strenuously pressed by you. The documents which the agent in the West
Indies is directed to transmit to London will place these matters in the
proper legal train, to be heard on appeal. It can not be doubted that the
British ministry will insist that, before we complain to them, their tribu-
nals, in the last resort, must have refused justice. This is true in general ;
but peculiarities distinguish the present from past cases. V^'hero the error
complained of consists solely in the misapplication of the law, it may be
corrected by a superior court; but where the error consists in the law
itself, it can be corrected only by the lawmaker, who, in this instance,
was the King, or it must be compensated by the Government. The
principle, therefore, may be discussed and settled without delay; and,
even if you should bo told to wait until the result of the appeals sbnll ap-
pear, it may be safely said to bo almost certain that some one judgment in
the West Indies will be confirmed; aud this will be sufficient to bring the
principle in question with the British ministry.
"Should the principle bo adjusted, as we wish and have a right to* ex-
pect, it may be advisable to employ some jiersou to examine the proper
offices in London, for such vessels as may have been originally tried or ap-
pealed upon, aud finally condemned. You will also reserve an opportunity
for new claims, of which we may all be ignorant for some time to come;
and if you should be compelled to loave the business in its legal course,
you are at liberty to procure professional aid at the expense of the United
States.
'' Whenever matters shall bo brought to such a point as that nothing
reuiains for settlement but the items of compensation, this may be en-
trusted to any skillful and confidential person whom you may appoint.
"You will mention, with due stress, the general irritation of the Unite<l
States at the vexatious, spoliations; captures, &c. And being on the field
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308 INTERNATIONAL ARBITRATIONS.
obtained only through '* the justice, authority, and interposition
of His Majesty." In some cases, as where property had been
condemned and sold and the proceeds scattered, it was imprac-
ticable to obtain a remedy by civil process; and it was neces-
sary to ^' confide in Uis Majesty's justice and magnanimity to
cause such compensation to be made to the innocent sufferers
as may be consistent with equity." In other cases it might be
^'expedient and necessary, as well as just, that the sentences
of the courts of vice-admiralty should be revised and corrected
by the court of appeals" in London. In such cases it was
hoped that it would appear reasonable to His Majesty to order
that the claimants, who ha<l not already done so, should be
admitted to enter there both their appeals and tbeir claims;
and, as the expenses and delays attending litigated suits were
grievous, it was desirable that a mode of proceeding as sum-
mary and inexpensive as possible might be devised.^
Lord Grenville answered that it was " His Majesty's wish
that the most complete and impartial justice should be done to
all the citizens of America, who may, in fact, have been injured
by any of the proceedings above mentioned." As to cases
where the parties had omitted to prefer claims, it was appre-
hended that the regular course of law was still open to them,
and that by preferring appeals to the commissioners of prize in
London against the sentences of the courts below, " the whole
merits of those cases may be brought forward, and the most
complete justice obtained." In cases where no ap[)eal had been
taken from the sentence of condemnation in the first instance,
His Majesty had referred it to the proper officers to consider a
mode of enlarging the time for receiving the appeals. In this
manner Lord (Jrenville said he had no doubt " a very consider-
able part of the injuries alleged to have been suffered by the
Americans may, if the complaints are well founded, be re-
dressed in the usual course of judicial proceedings, at a very
of negotiation you will be more able to judge, than can be prescribed now,
bow far you may state the difficulty which may occur in restraining the
violence of some of our exasiierated citizens.'' (Mr. Randolph to Mr. Jay,
May 6, 1704, Am. St:ite Papers, For Rel. I. 472.)
The ''agent in the West Indies," referred to in the foregoing extract was
Mr. N. C. Higginson, who was sent by the Government of the United States
to the British West India Islands to attend to the e:ises of American
vcMmds brought in under the or<l«-r8 in council.
' Mr. Jay to Lord Grenville, July 30, 1794. (Am. i5tate Papers, For. Rel.
1.481.)
Digitized by LjOOQIC
NEUTRAL KIGHTS AND DUTIES. 309
small expense to the partiesj and without any other interposi-
tion of His Majesty's Government than is above stated. Until
the result and effect of these proceedings shall be known, no
definitive judgment can," continued LordGrenville, '' be formed
respecting the nature and extent of those cases (if any such
shall ultimately be found to exist), where it shall not have
been practicable to obtain substantial redress in this mode.
But he does not hesitate to say, beforehand, that, if cases shall
then be found to exist to such an extent as properly to call for
the interposition of Government, where, without the fault of
the parties complaining, they shall be unable, from tchaiever
cireumstances, to procure such redress, in the ordinary course
of law, as the justice of their cases msLy entitle them to ex-
pect, His Majesty will be anxious that justice should, at all
events^ be done, and will readily enter into the discussion of the
measures to be adopted, and the principles to be established for
that purpose." ^
On the basis of this declaration the plenipotentiaries suc-
ceeded in agreeing on a measure of redress without entering
into a discussion of the particular principles on which relief
should be granted. On the 6th of August Mr. Jay proposed
that commissioners should be appointed for the purpose of
affording satisfaction for vessels and property illegally cap-
tured and condemned.' On the 30th Lord Grenville responded,
accepting the proposal to appoint commissioners, and offering,
for the definition of their functions and jurisdiction, an article
based on his previous note and couched in substantially the
same language as the article finally adopted.
This article forms the seventh of the treaty
Artide vn. concluded by Mr. Jay and Lord Grenville on
the 19th of November 1794. Eeciting that
^'complaints have been made by divers merchants and others,
citizens of the United States, that during the course of the war
in which His Majesty is now engaged, they have sustained
considerable losses and damage, by reason of irregular or
illegal captures or condemnations of their vessels and other
property, under color of authority or commissions from His
Majesty, and that from various circumstances belonging to
the said cases, adequate compensation for the losses and
' Lord Grenville to Mr. Jay, August 1, 1794. (Am. State Papers^ For.
Rel.I.481.)
^ Am. State Papers, For. Rel. I. 481.
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310 tNtSBI*ATtONAL ARBltBATIOl^S
damages so sustained caimot now be actually obtained, had,
and received by the ordinary course of judicial proceedings;
it is agreed, that in all such cases, where adequat-e compensar
tion cannot, for whatever reason, be now actually obtained,
had, and received by the said merchants and others, in the
ordinary course of justice, full and complete compensation for
the same will be made by the British Government to the said
complainants. But it is distinctly understood that this pro-
vision is not to extend to such losses or damages as have been
occasioned by the manifest delay or negligence, or wilftil omis-
sion of the claimant."
It was also agreed that not only all existing
Proipeotive Opera- ^ ^^^ ^^^ ^jj ^^^ should exist at the
turn. '
time of the exchange of the ratifications of
the treaty should be considered as being within the provisions,
intent, and meaning of the article.
This stipulation enabled the commission
A 'rUiTM ^^^^^ Article VII. to take cognizance of cases
that arose under an order in council, issued in
April 1795, about five months after the treaty was signed and
six months before the excliange of ratifications, which was
eflfected in London on October 28, 1795. The text of this order
was not published, but it was gathered from the cases that
arose under it that it directed His Majesty's ships of war and
privateers to stop and detain all vessels laden wholly or in part
with corn, flour, meal, or other articles of provisions and bound
to any port in France and to send them to such ports as might
be most convenient, in order that such corn or other articles
might be purchased in behalf of the government. Not long
afterward the order was revoked, and compensation for the
seizures which it occasioned was obtained under Article VII.
When Lord Grenville on the 30th of August
^^^2^^"^^* 1794 submitted to Mr. Jay a draft of an article
to provide for compensation for captures under
the orders in council, he included in it a stipulation to this
effect: <<And it is further agreed that, if it shall appear rhat, in
the course of the war, loss and damage has been sustained by
His Majesty's subjects, by reason of the capture of their vessels
and merchandise, such capture having been made, either with-
in the limits of the jurisdiction of the said States, or by vessels
armed in the ports of the said States, or by vessels commanded
or owned by the citizens of the said States, the United States
Digitized by LjOOQIC
U^EUTRAL RIGHTS AND DUTIES. 3ll
will make fall satisfaction for such loss or damage, the same
to be ascertained by commissioners, in the manner already
mentioned in this article."^
This proposal involved the interesting ques-
Conne of Genet tion of the enforcement by the United States
of its neutral policy in the pending war, as an-
nounced in President Washington's proclamation of April 22,
1793.* By this proclamation it was declared that in the "state *
of war" that existed "between Austria, Prussia, Sardinia, Great
Britain, and the United Netherlands, of the one part, and France
on the other," "the duty and interest of the United States
require, that they should, with sincerity and good faith, adopt
and pursue a conduct friendly and impartial toward the bellig-
erent powers." On the other hand, the Government of France
expected from the United States friendly aid, if not an open
alliance. This expectation filled the thoughts and governed
the course of the Citizen Genet, who was sent out in 1793 to
succeed M. Ternant as French minister to the United States.
Genet, having arrived in Charleston, South Carolina, in April,
the Government of the United States soon learned "that he
was undertaking to authorize the fitting and arming of vessels
in that port, enlisting men, foreigners and citizens, and giving
them commissions to cruise and commit hostilities on nations
at peace with usj that these vessels were taking and bringing
prizes into our ports; that the consuls of France were assum-
ing to hold courts of admiralty on them; to try, condemn,
and authorize their sale as legal prize; and all this before Mr.
Genet had presented himself or his credentials to the Presi-
dent, before he was received by him, without his consent or
consultation, and directly in contravention of the state of peace
existing, and declared to exist in the President's proclama-
tion, and incumbent on him to preserve, till the constitutional
authority should otherwise declare."^
The British minister, Mr. Hammond, complained of these
proceedings, and on the 15th of May Mr. Jefferson addressed
a remonstrance on the subject to the French minister. On
1 Am. State Papers, For. Bel. I. 488.
<Am. State Papers, For. Rel. I. 140. At this place will also be foand
HamiltoD's instructions to collectors of customs of August i, 1793, in which
the acts understood to be forbiddeu by a state of neutrality were defined.
3 Mr. Jefiferson, Sec. of State, to Mr. Morris, minister to France, August
16, 1793. (Am. State Papers, For. Rel. I. 167.)
Digitized by LjOOQIC
312 INTERNATIONAL ARBITRATIONS.
the next day the Oitizeu Geuet arrived in Philadelphia, and
on the 27th of May, after he had been received by th^ Presi-
deDt, he presented an answer in which he defended his pro-
ceedings and expressed the hope that, on reading it, the
government wonld ^^ return from the first impressions which
the reports of the minister of England appear to have made
on it.'' ^
On the 5th of Jnne Mr. Jefferson comma-
^^^^^Ttm'™** ^ nicated to the Citizen Genet the President's
formal opinion. Referring to the fact that the
Citayen Genet, one of the cruisers fitted out at Charleston, had
brought a prize into the port of Philadelphia, Mr. Jefferson
said that the President had carefully reexamined the subject,
and the result appeared to be that it was "the right of every
nation to prohibit acts of sovereignty irom being exercised by
any other within its liu.its, and the duty of a neutral nation to
prohibit such as would injure one of the warring Powers;"
that "the granting military commissions, within the United
States, by any other authority than their own," was ^^an in-
fringement on their sovereignty, and particularly so when
granted to their own citizens, to lead them to commit acts
contrary to the duties they owe their own country;" that
"the departure of vessels, thus illegally equipped, firom the
ports of the United States," would be but an act of respect,
and was required as an evidence of neutrality; and that it
was not doubted that they would be "permitted to give no
further umbrage by their presence in the ports of the United
States."'
Far from acquiescing in these conclusions,
^*of^D^S?*^ the Citizen Genet complained that the au-
thorities at Philadelphia had stopped the sale
of the ship William^ an English vessel which was captured by
the Citoyen Genet near Cape Henry on the 3d of May and
brought into Philadelphia on the 14th of the same month,
and that the authorities at New York had prevented the sail-
ing of an armed French vessel, fitted out in that port.^ He
also declined to restore the brigantine Fanny^ of London,
which was captured by the Sans Culottes, one of the Charles-
1 Am. State Papers, For. ReL 1. 149, 150.
s Am. State Papers, For. Rel. 1. 150.
^Citizen Qenet to Mr. Jefferson, June 14, 1793. (Am. State Papers, For.
Be]. 1. 152.)
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NEUTRAL RIGHTS AND DUTIES. 313
ton omisers, near Cape Henry on the 8th of May and brought
to Philadelphia. Moreover, the arming of vessels went on,
and captures continued to be made even after the 5th of June.
The Gitayen Genet seized on the 28th of June the brig Prince
William Henry; on the 4th of July the Lovely Lass, and on
the 24th of July the Jane^ of Dublin, all of which were brought
into port for condemnation and sale by the French consuls.'
Mr. Jefferson asked that they be not permitted to depart till
the President's ultimate determination in regard to them
should be made known. ^
On the 7th of August Mr. Jefferson Informed
Aetioo of United ^j^^ Citizen Genet that the President consid-
Statai. _v
ered the United States *^as bound, pursuant
to positive assurances, given in conformity to the laws of
neutrality, to effectuate the restoration of, or to make compen-
sation for, prizes which shall have been made of any of the
parties at war with France subsequent to the 5th day of June
last by privateers fitted oat of our ports;" that it was conse-
quently expected that he would " cause restitution to be made"
of all prizes so taken and brought in subsequent to that day,
in defect of which the President would consider it incumbent
upon the United States "to indemnify the owners of those
prizes, the indemnification to be reimbursed by the French
nation;" and that, "besides taking efficacious measures to pre-
vent the future fitting out privateers in the ports of the United
States, they will not give asylum therein to any which shall
have been at any time so fitted out, and will cause restitution
of all such prizes as shall be hereafter brought within their
I)ort8 by any of the said privateers." ^
Briefly to sum up what has been stated, it appears that
Washington on the 22d of April 1793 issued his proclamation
of neutrality; that on the 5th of June he formally made
known to the Citizen Genet his opinion concerning the neu-
trality of the United States and the latter's infractions of it;
that, in spite of this communication, farther offenses were com-
mitted by the capture and bringing in of the Prince William
Henryj the Lovely La>ss, and the Jane; that on the 7th of Au-
gust the government, while forbearing, from motives of policy.
I Am. state Papers, For. Rel. 1. 185.
'Note to the Citizen Genet, Jnly 12, 1793. (Am. State Papers, For. Rel.
1.163.)
» Am. State Papers, For. Rel. I. 167.
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314 INTliRNATIONAL ARBITRATIONS.
to take effectual lueasares to restore these vessels, asked the
French minister to restore them, but announeed that it would
itself cause restitution to be made of all such x)rizes as should
thereafter be brought within the i)orts of the United States
by any of the privateers in question.
On the 7th of August Jefferson also ad-
« ♦** vT^i-TM dressed a note to the British minister. Ham-
Beptemoer 5, 1793. ,.,.,, , ,
mond, in which he stated that measures were
being taken for excluding from all further a«ylum in the
ports of the United States vessels armed in them to cruise
against friendly nations, and for the restoration of the prizes
Lovely La^s^ Prince William Henry^ and the Jane^ of Dublin,
and that if the measures taken for their restitution should
fail the President considered it incumbent on the United
States to make compensation for them. This note he followed
up on the 5th of September 1793 with another, in which he
comprehensively defined the position of the United States.
Eeferring to the treaties of the United States with three of
the belligerent nations,^ by which the contracting parties were
bound to endeavor, '^by all the means in their power," each to
protect and defend in its ports or waters, or the seas near its
coasts, vessels and effects belonging to citizens of the other,
and to recover and cause to be restored to the right owners
any such vessels or effects as should there be taken from them.
Jefferson said :
"Though we have no similar treaty with Great Britain, it
was the opinion of the President that we should use towards
that nation the same rule, which, under this article, was to
govern us with the other nations, and even to extend it to
the captures made on the high aeas and brought into our
I)orts, if done by vessels which had been armed within them.
Having, for particular reasons, forborne to use all the means
in our power for the restitution of the three vessels mentioned
in my letter of August 7th, the President thought it incum-
bent on the United States to make compensation for them;
and though nothing was said in that letter of other vessels
taken under like circumstances, and brought in after the 5tb
June, and before the date of that letter, yet where the same
forbearance had taken place it was, and is his opinion, that
compensation would be equally due. As to prizes made under
the same circumstances, and brought in after the date of that
letter^ the President determined that all tlie means in our
> France, February 6, 1778, Art. VI ; Netherlands, October 8, 1782, Art. V ;
Prussia, September 10, 1785, Art. VII.
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i^EUTRAL kiGHtS AND DUTIES. Sl6
power should be osed for their restitution. If these fail, as
we should not be bound by our treaties to make compensation
to the other Powers, in the analogous case, he did not mean to
give an opinion that it ought to be done to Great Britain. But
still, if any cases shall arise subsequent to that date, the cir-
cumstances of which shall place them on similar ground with
those before it, the President would think compensation
equally incumbent on the United States. * * * Hence
you will perceive, sir, that the President contemplates restitu-
tion or compensation^ in the cases before the 7th of August,
and after that date, restitution, if it can be effected by any
means in our power; and that it will be important that you
should substantiate the fact, that such prizes are in our ports
or waters. • • * With respect to losses by detention,
waste, spoliation, sustained by vessels taken as before men-
tioned, between the dates of June 5th and August 7th, it is
proposed, as a provisional measure, that the collector of the
customs of the district, and the British consul, or any other
person you please, shall appoint persons to establish the value
of the vessel and cargo, at the times of her capture, and
of her arrived in the port into which she is brought, according
to their value in that port."^
Such was the origin and situation of the
*^^tide*viL'^^ claims of British subjects to which Lord Gren-
ville's proposal referred. It was decided to
include them in the treaty, and to adopt the letter of Mr. Jef-
ferson of the 5th of September as the rule by which they should
be determined. A stipulation was accordingly inserted in Ar-
ticle VII. to this effect:
**And whereas certain merchants and others. His Majesty's
subjects, complain that, in the course of the war, they have
sustained loss and damage by reason of the capture of their
vessels and merchandise, taken within the limits and jurisdic-
tion of the States and brought into the ports of the same, or
taken by vessels originally armed in ports of the said States:
It is agreed that in all such cases where restitution shall not
have been made agreeably to the tenor of the letter from Mr.
Jefferson to Mr. Hammond, dated at Philadelphia, September
^ Am. state Papers, For. Kel. I. 174. Hall, International Law, 550, 2d
edition, referring to this letter, says: "The policy of the United States
in 1793 constitntes an epoch in the development of the usages of neutrality.
There can be no doubt that it was intended and believed to give effect to
the obligations then incumbent upon neutrals. But it represented by far
the most advanced existing opinion as to what those obUgations were;
and in some points it even went further than authoritative international
custom has up to the present time advanced. In the main, however, it is
identical with the standard which is now adopted by the community of
nations.''
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316 INTERNATIONAL ARBITRATIONS.
/>, 1793, a copy of wliicli is annexed to this treaty; the oom-
])laint8 of the parties shall be and hereby are referred to the
Commissioners to be appointed by virtue of this article, who
are hereby authorized and retjuired to proceed in the like man-
ner relative to these as to the other eases committed to them."
In respect of these claims, as of those arisiug
CftMt ineiuded. under the orders in council, it was agreed that
not only existing cases, but also all such as
should exist at the time of the exchange of the ratifications
of the treaty shouM be considered '*as being within the provi-
sions, intent and meaning of this article." The ratifications
were exchanged October 28, 1795.*
For the purpose of ascertaining the amount
tatioii 0 m- ^^ iQgges and damages to be estimated under
the various engagements of Article VII., it was
provided that five commissioners should '^be appointed and
authorized to act in London, exactly in the manner directed
with respect to tliose mentioned in the preceding article;" that
is to say, that two commissioners should be appointed by His
Britannic Majesty, two by the President of the United States,
by and with the advice and consent of the Senate, and the fifth
by the unanimous voice of the other four; and in case they
should be unable to agree, that the commissioners named by
the two parties should respectively propose one person, and of
the two proposed one should be drawn by lot in the presence
of the four original commissioners.
It was further provided that after the com-
owen 0 ommifl- miggi^^n^pj, jj^c^ taken the requisite oath op
affirmation and were ready to proceed to busi-
ness, a period of eighteen months, which might in particular
cases be extended not more than six months, should be allowed
for receiving comi)Iaints and applications; that the commis-
sioners should "receive testimony, books, papers and evidence
in the same latitude, and exercise the like discretion and pow-
ers respecting that subject" as the commissioners under Article
^ Genet, in a letter to Jefferson of September 14, 1793, said that the priva-
teers fitted out in the Unit^wl States bad ''taken possession of' 50 vessels.
(Am. State Papers, For. Kel. 1. 184.) Hammond to Lord Qrenville, Novem-
ber 5, 1794, said that, between the outbreak of hostilities and Augaat 1,
1794, there were '' brouf^ht into the ports of the United States'' 76 ** Britiah
prizes," valued at £196,548, of which 46 were made by privateers fitted oot
in the United States. (Bncish Counter Case and Papers, Geneva Arbitra-
tion, Am. reprint, 608. Tables of captures down to October 1796 are
printed in this same volame, 60^-621.)
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NEUTRAL RIGHTS AND DUTIES. 317
Vh'y^ that they should ^^ decide the claims in question accord-
ing to the merits of the several cases, and to justice, equity
and the law of nations;" that the ^^ award of the said Commis-
sioners, or any such three of them as aforesaid, shall in all
cases be final and conclusive, both as to the justice of the
claim, and the amount of the sum to be paid to the claimant;"
and that the government against which the award should be
rendered should cause it to be paid to the
Payment of Awards, claimant in specie, without any deduction, at
such i)lace or places and at such time or times
as should be awarded by the commissioners, and on condition
of such releases or assignments to be given by the claimant as
the commissioners might direct.
On the part of Great Britain the original
Brituh Co on- cQ^jniissioners were John iJicholl, LL,D., an
en. ' '
eminent civilian, who then shared with Sir
William Scott the honors and practice of the admiralty courts,
and John Anstey. In November 1798 Dr. NichoU resigned to
accept the i)ost of King's Advocate before the High Gourt of
Admiralty, and was succeeded by Maurice Swabey, LL.D.,
who took his seat at the board on tlie 5th of the same month.^
On the part of the United States the com-
American ^^|^^^ missioners were Christopher Gore and William
pher Goie Pinkney. The former, who is popularly known
as the legal preceptor of Daniel Webster, had
already attained a foremost place at the Massachusetts bar.
Born at Boston on the 21st of September 1758, he graduated
at Harvard College in 1776, and subsequently entering upon
the practice of the law in his native city soon acquired a lucra.
tive practice. In 1789 he was appointed by Washington as the
first district attorney of the United States for Massachusetts,
and held that office until he was appointed in 1796 a commis-
sioner under Article VII. He remained in London until 1804,
when, having fulfilled his duties as commissioner and acted
during the last year of his residence in London as charge
d'affaires of the United States, he returned to Boston. In
1809 he became governor of Massachusetts, and held the office
^ Article VI., to which reference is here made, Htipulated that three com-
iiiissiouers should constitute a board, and have power to do any act pertain-
ing to the commission, provided that one of the commissioners named on
each side and the fifth commissioner should be present.
*-' Messrs. Gore and Pinkney to Mr. Pickering. Sec. of State, November
5, 1798. (MSS. Dept. of State.) See Southern Law Kev., O. S., III. 3.
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318 INTERNATIONAL ARBITRATIONS.
for a year. Subsequeutly be served in both branches of the
State legislature, and in 1813 was elected in place of James
Lloyd to the Senate of the United States, where he remained
until 1816.1
But of all the members of the board Mr.
wiUiam Pinkney. Piukney was in many respects the most inter-
esting. Never a seeker after preferment, he
was continually chosen, either by the sulfrages of his fellow-
citizens or by executive favor, to i)08ition8 of public trust and
responsibility, which he filled with distinction to himself and
advantage to his country. Boru at Annapolis, Maryland, on
the 17th of March 1764, and educated at King William School
in that city, he entered upon the study of medicine, but finding
it uncongenial soon abandoned it for that of the law. In 1788,
two years after his admission to the bar, he was elected a dele-
gate to the convention of Maryland which ratified the Constitu-
tion of the United States. In October of the same year he was
elected to the Maryland house of delegates, and in 1790 to the
House of Representatives of the United States, a position
which he subsequently declined for private reasons. In 1792
he was chosen a member of the executive council of Mary-
land, and for a time was president of that body. In 1805, the
year after his return as commissioner from London, he was
appointed attorney- general of Maryland. In the following
year he was selected by President Jefi'erson to assist Mr. Mon-
roe in his negotiations at London, and after the termination of
their joint mission remained as the minister of the United
States until 1811. Returning to the United States in June of
that year, in the ensuing September he was elected to the sen-
ate of Maryland and retained that post until the following
December, when he was appointed by President Madison
Attorney-General of the United States; but the passage of a
law requiring the Attorney-General to reside at the seat of
government soon compelled him to relinquish the office. In
the war of 1812 he raised a company at Baltimore for local
defense, and was severely wounded at the battle of Bladens-
burg. In 1815 he was elected a Representative in Congress
from the city of Baltimore, but iu the following year was ap
pointed by President Monroe as minister x>lenipotentiary to
Russia, and as special minister to the Court of Naples to obtain
^ Cyciopiedia of American Biography.
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NEUTRAL RIGHTS AND DUTIES. 319
iademnity for the illegal seizure aud confiscation of property
of American citizens by the government of Murat. In 1818
he voluntarily returned to the United States, and in the fol-
lowing year he was elected from Maryland to the Senate of
the United States, in which he took his seat January 4,
1820. He died at Washington February 25, 1822, the fatal
attack being induced by overexertion in the argument of a
cause before the Supreme Court of the United States.
From this brief outline of Mr. Pinkney's public services it
is evident that his preeminent success at the bar can be
accounted for only by the fact that to natural abilities of a
high order he united an ardent and unremitting diligence in
the study of his profession. His early education being defi-
cient as compared with that of some of the public characters
with whom he was thrown in contact on his arrival in London,
he employed an instructor and applied himself with assiduity
to scholastic studies, especially Latin, English literature, and
rhetoric. At the same time he steadily pursued the study of
the law, being constant in his attendance upon the courts, and
took lessons in oratory at the sessions of the House of Gom-
mous. Perhaps no stronger tribute ever was paid to his elo-
quence and skill as an advocate than that which was uttered
by Chief Justice Marshall in a formal opinion of the Supreme
Court: "With a pencil dipped in the most vivid colors," said
that great judge, referring to an argument of Mr. Pinkney's,
"and guided by the hand of a master, a splendid portrait has
been drawn, exhibiting this vessel and her freighter as form-
ing a single figure, composed of the most discordant materials,
of peace aud war. So exquisite was the skill of the artist, so
dazzling the garb in which the figure was presented, that it
required the exercise of that cold investigating faculty which
ought always to belong to those who sit on this bench, to dis-
cover its only imperfection; its want of resemblance.'"
The opinions delivered by Mr. Pinkney as a member of the
board of commissioners under Article VII. of the treaty of 1794
are worthy of his reputation. They are, as Mr. Wheaton said,
"finished models of judicial eloquence, uniting powerful and
comprehensive argument with a copious, pure, and energetic
diction.'" Especial mention may be made of his opinion in the
case of the Betsey^ Furlong, master, on the question of the
1 The Nereide, 9 Cranch, 388, 430.
» Life of Pinkney, 26.
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320 INTERNATIONAL ARBITRATIONS,
finality of the judgments of prize courts, and of that in the
case of the Neptune, Jeffries, master, a provision case involving
the question of contraband.
Mr. Gore landed at Dover June 21, 1796, and
^^*^^ffl!e*'^"^" *^^^^^^^ ^" London on the following day. On
the 23d he called on Mr. Piukney, who had pre-
ceded him, and on the 30th of June was presented by the latter
to Lord Grenville, with whom lie left a copy of his commission.
The first meeting of the American and British commissioners,
for the purpose of adjusting the preliminaries of their task, was
held on the IGth of August 1796 at the hoase of Dr. NichoU, in
Lincoln's Inn Fields, London.
On the 18th of August the commissioners met
Choioe of Fifth Com- . -, •» t% .m « « •
. . at the same place for the purpose of choosing
a fifth commissioner. For this office the com-
missioners on each side desired the selection of one of their own
countrymen, and to this end the American commissioners men-
tioned Mr. Starke, "a gentleman of the law from Virginia;"
Mr. I. C. Fisher, a merchant of Philadeliihia; Mr. Tudor, of
Boston, and Col. John Trumbull, of Connecticut. The British
commissioners also presented a list of four names, among which
were those of Drs. Swabey, Arnold, and Lawrence, all eminent
civilians. But, as neither side would yield to the other, it was
found necessary to resort to the alternative mode of choosing
by lot. The disadvantage which usually attends this method
is that each side names one of its partisans, so that the com-
missioner chosen by lot for the purpose of casting the decisive
vote is likely to be less fair and judicial than any of his asso-
ciates. The commissioners under Article VII. sought to avoid
this difficulty by arranging that, for the purposes of the lottery,
each side should propose a name from the list which the other
had prepared with a view to a common agreement. In execu-
tion of this plan the American commissioners chose from the
British list the name of Dr. Swabey, while the British commis-
sioners selected from the American list the name of Colonel
Trumbull. These names, having been written on ballots by
Mr. Gore and Dr. Nicholl, were <leposited in an urn, which was
taken into another room to Dr. Anstey and Mr. Pinkney, and
the urn being presented by Dr. Nicholl to Mr. Pinkney, the
latter drew out the name of Colonel Trumbull.*
^ Messrs. Gore and Pinkney to Mr. Pickering, Sec. of State, Augnst 27,
1796. (MSS. Dept. of State.)
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NEUTRAL RIGHTS AND DUTIES. 321
Apart from the fact of his being then in London, Colonel
Tromball doubtless owed his selection in a measure to the cir-
cumstance of his having accompanied Mr. Jay as secretary in
the negotiation of the treaty. His duties as commissioner were
performed with conscientiousness and not without credit, but his
tastes were for art rather than for law and diplomacy, and it is
as a painter of historical pictures that he is still remembered.^
Colonel Trumbull was duly notified of his
^**^^J^^'^°"" appointment, and having accepted it met the
other commissioners on the 25th of August,
when they were all qualified by taking an oath before the Lord
Mayor of London.*
The commissioners after qualifying took an
Hotioe ^J^^^K-ni"- office in Gray's Inn, and on the 7th of Septem-
ber published the following notice:
'<The commissioners appointed to carry into execution the
seventh article of the Treaty of Amity, Commerce and Naviga-
tion, between his Britannic Majesty and the United States of
America, hereby give notice that they have formed a board,
and will be ready to proceed to the business of their commis-
sion, on Monday, the tenth day of October next, at their office.
No. 5, Gray's Inn Square, Gray's Inn, London.
'< All persons having claims under said article will take notice
that by the provisions thereof, eighteen months from the day
on which the commissioners shall form a board and be ready to
proceed to business, are assigned for receiving complaints and
applications, and that the commissioners are authorized only
in particular cases, in which it shall appear to be reasonable
and just, to extend the said term of eighteen months, for any
term not exceeding six months, after the expiration thereof
"London, Sept. 7th, 1796."
^ See his Aatobiography, 190, 191. When this work was written he was
under the impression that the records of the commission, having been
deposited in one of the public offices at Washington, were destroyed by.
fire. The records, however, probably so far as they over were in the pos-
session of the United States, arc now in the Department of State, though
nnarranged and not even segregated.
3 Mr. Gore to Mr. Pickering, Sec. of State, August 26, 1796. The oath
taken by the commissioners was as follows :
''I, , one of the Commissioners appointed in pursuance of the 7th
article of the treaty of Amity, Commerce and Navigation between his Brit-
tanick Mi^esty and the United States of America, do solemnly swear that
I will honestly, diligently, impartially and carefully examine and to the
best of my judgment, according to the merits of the several cases and to
justice, E^juity and the Law of NntionH, decide all such claims as under
the said article shall be preferred to the said commissioners, and that I
will forbear to act as a commissioner iu auy case in which I may be per-
sonally interested." (MSS. Dept. of iState.)
5627 21
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322 INTERNATIONAL ARBITRATIONS.
When the commissioners, pnrsaant to this
^^'^^OfficS. ''^''' notice, assembled on the 10th of October, they
proceeded to appoint a secretary and other
necessary officers and establish rules, and to transact sach
other business as came before them.^
They chose as secretary Francis Moore, and appointed James
Western and Thomas Eobert Harris as clerks. On the 19th of
October these persons each took an oath of office and entered
on the discharge of their respective duties.*
Each government appointed an agent, whose
Agents. function it was to represent before the commis-
sion the interests of his government and the
claims of its citizens. In this capacity ]^athaniel Gostling, a
proctor of the court of admiralty, appeared on the part of
Great Britain. In a similar capacity Samuel Bayard, of Phila-
delphia, appeared on the part of the .United States.' After
retaining the place for about two years, he resigned it and was
succeeded by Samuel Williams, who was in turn succeeded by
G. W. Erving.*
In order to ascertain the amount of com-
Assesson. pensation that should be awarded in cases in
which any should be found to be due, the com-
missioners decided to adopt the procedure of the court of admi-
ralty and name two merchants, one from each nation, to act as
assessors, whose duties, as defined in the records of the com-
mission, were *' to ascertain the value at the time of capture,
^Trumbuirs Autobiography, 192, 193; Pinkney's Life of Pinkney, 25.
3MSS. Dept. of State.
3 Mr. Jay liaviDg suggested in the summer of 1794 that a person shoald
be sent to England to represeut the claims of American citizens before the
prize courts in that country, Mr. Bayard was selected for the purpose with
■the approbation of the merchants of Philadelphia interested in BritiBh
captures. He appears to have sailed in the ship Adriana on November 9,
1794; he landed at Falmouth and arrived in London in December. Mr.
Bayard was bom in Philadelphia January 11, 1767; graduated at Prince-
ton College in 1784, and read and practiced law in his native city. After
his return to the United States he became a judge of the court of common
pleas of Westchester County, New York. (Am. State Papers, For. Rel. I.
484,499,501; The Bayard Family of America and Judge Bayard's London
Diary of 1795-96, by Gen. James Grant Wilson, Huguenot Society, April 17,
1890; Dod's Journal of Martha Pintard Bayard.) There is a manuscript
volume of Mr. Bayard's reports as agent for prizes in London in the
Department of State.
-I Mr. Krvlngwas afterward minister of the United States at Copenliagen
and Madrid. There are commeudatory references to him in Wharton's
International Law Digest, III. App. 867, 881.
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NEUTRAL EIGHTS AND DUTIES. 323
and of the goods and merchandise at the port of destination,
at the probable time of arrival; the compensation to be paid
as demurrage to the claimant for detention, and what compen-
sation ought to be paid on account of damages alleged to have
been sustained by the vessel, and expenses necessarily incurred
by the owners by reason of the detention thereof, and of the
cargo ^ compensation for any loss or damage arising from the
necessary hypothecation of a vessel and cargo for the purpose
of enabling the charterer to obtain the security prescribed by
the sentence of a court, as a condition of the restitution ; the
difference between the sum paid by the British Government,
and the value of the cargo at the place of destination."
Samuel Gabot, an American merchant, was appointed to act
in this capacity on the part of the United States, and Alexan-
der Glennie, a British merchant, on the part of Great Britain.
On February 5, 1797, the day of their a[)pointment, they
attended and "took an oath carefully to examine all mat-
ters referred to them by the Board, and faithfully and impar-
tially to report upon the same according to their instructions
and the best of their skill and judgment." At the same time
the board ordered that a copy of every order of reference to
the merchants should be transmitted as soon as possible
to the agent for the claimants and the agent for the Crown,
and that as soon as the merchants shouhl have made their
report a copy of it and of the account or schedule therein
referred to should also be transmitted to the agents, who
should respectively be at liberty to file their objections to such
report within one week after it should have been made. It
was also ordered that the assessors should receive, according
to the usage of the court of admiralty of Gr(».at Britain, the sum
of five guineas for every case reported upon by them. Before
the conclusion of the labors of the commission Mr. Cabot
resigned his post, and Mr. Erving, who had been appointed
as agent was also designated by the Government of the
United States to act as assessor; but the commission declined
to receive him in that capacity, deeming it incompatible with
his functions as agent, and Mr. Erving on being informed of
their objection resigned his appointment as assessor. Mr.
Cabot was then induced to return to the post on the payment
of an annual salary of $1,500 in addition to the irregularly
recurrent fee of five guineas. The services which he rendered
in his capacity of assessor were not only laborious, but by
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324 INTERNATIONAL ARBITRATIONS.
reason of his experience and knowledge were also of great
value.*
The commissioners had not proceeded far
Bifferoioe "to Com- ^^ ^^^ deliberations when, in the case of the
miaioiiB Jansdio- ^^ -r^ * • •• •^ ■■•
^^ Betsey J Furlong, master, a violent dissension
arose as to the extent of their jurisdiction,
and their power to determine to what cases it extended. The
question on which this disagreement occurred was that of
the finality of the decrees of the English High Court of Appeals
in prize causes — the Lords Commissioners of Appeal — ^in af-
firming the condemnatory sentences of the prize courts. The
American commissioners maintained that such decrees could
not be regarded as final, since, if based on rules or on orders
in council that were violative of the law of nations, they merely
consummated the wrong of which the United States com-
plained and for which it had been promised compensation.
While the fifth commissioner coincided in this view, he was
deprived of the power to render a decision by the assertion by
the British commissioners of a right to withdraw from the
board, the treaty requiring at least one of the commissioners
on each side and the fifth commissioner to be present at the
performance of any act appertaining to the commission. In
this way the progress of the board was brought to a halt.^
In this dilemma Eufus King, who then represented the
United States at the Court of St. James, held on the 16th of
December 1796 a conference with Lord Grenville, in order to
ascertain how far the action of the British commissioners met
the approbation of His Majesty's government. Mr. King told
1 TrumbnU's Autobiography, 352-355.
2 On December 16, 1796, Messrs. Gore and'Pinkney wrote to the Secretary
of State of the United States that their opinions on the power of the board
to determine its own jurisdiction had been written, and would be pre-
sented to the British commissioners for their perusal. Subsequently they
reported that, when the opinions were offered, Mr. Aiistey declined to read
them on the ground that Lord Grenville desired that there might be uo
interchange of written opinions. Mr. NichoU, however, not deeming him-
self precluded from perusing them, Mr. Gore's was delivered to him. lu
returning it, some time after the objection to the board's proceeding had
been removed, Mr. NichoU made a memorandum in which he said that
^'the objection was not stated correctly in its full extent, at least so far
as regarded Dr. NichoU, and that from many parts of the remarks he con-
ceived that he must in various instances have been misapprehended by
Mr. Gore." (Messrs. Gore and Piukuey to the Sec. of State, July 29, 1797,
MiSS.Dept. of State.)
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NEUTRAL RIGHTS AND DUTIES. 325
Lord Grenville that in the class of actions wliich had been
decided in the high court of ap}>eals the British agent replied
that the commissioners had no jurisdiction, because the sen-
tences of that court were definitive; in the cases still pending
before the high court of admiralty and the high court of
appeals the agent took the ground that the commissioners
had no jurisdiction, because the claimants, if entitled to com-
pensation, might obtain it in the ordinary course of justice;
in the cases in which unsatisfactory decrees had been rendered
in the lower courts, but in which for various reasons appeals
had not been claimed or prosecuted, he contended that the
commissioners had no jurisdiction, because it was in conse-
quence of the neglect of the claimants if at length they were
unable to obtain compensation in the ordinary course of justice.
This, said Mr. King, practically excluded all the claims.
Lord Grenville, while professing a great desire that the treaty
should be executed, was unable to state what the final i)Osition
of the British Government would be. He thought there would
be great opposition to disturbing the sentences of the high
court of appeals, and suggested that cases might be admitted
in which evidence could be produced, or where the general
opinion prevailed, that it would be of no advantage to appeal,
and that possibly there might be other cases in which the com-
missioners could aflford relief. Lord Grenville also suggested
that the right to withdraw, which had been exercised by the
British commissioners, was perhaps countenanced by the stipu-
lation which required the presence of one commissioner at least
on each side, thus leaving with the respective governments the
power, by instructing their commissioners to withdraw, to
prevent the decision of questions not intended to be submitted
to them.
To this Mr. King replied that the commissioners were not to
be considered precisely as an appellate court, having authority
to reverse decrees rendered in His Majesty's courts of admiralty,
or to order the restoration of the thing which had been con-
demned by them. The remedy of the treaty was not resto-
ration, but compensation in the place of it — a remedy that
presupposed the sentence of condemnation to stand unreversed
as between the original parties, and the property to be vested
accordingly. But he did not think there was any doubt as
to the right to demand compensation for losses and damages
sustained by reason of the condemnation as well as of the irreg-
ular capture of the ships and cargoes.
Digitized by LjOOQIC
^26 tNTERNAtlONAL ARBITRATIONS.
Lord Grenville closed the conference by expressing a wish
that Mr. King would hold a conference on the subject with
the Lord Chancellor, I^oughborough, who had been consulted
in the negotiation of the treaty and had taken a deep interest
in its oi)eration.
On the following day Mr. King met the Lord
Loughborough's Chancellor at the Duke of Portland's, when
Opuuon. ^
his lordship, referring to the pending contro-
versy, expressed a desire for a conference and appointed a
meeting for the next morning. Mr. King waited on him accord-
ingly. The Lord Chancellor referred, as Lord Grenville had
•done, to an allegation in Mr. Bayard's memorials that certain
of the decrees of the high court of appeals were "illegal and
unjust." He said that he did not think an allegation in that
precise form was necessary in order to make out a case, and
that Mr. Bayard should take back or amend, and prefer in a
different form, his claim, so that it should adopt and follow the
terms of the treaty. On the other hand, he said : "These gen-
eral demurrers of Mr. Gostling are absurd, and he must take
them back. The reasons assigned by him against the jurisdic
tion of the commissioners, or in bar of the claim, are the very
cases which it was intended should be examined and decided
by the commissioners."
On the 26th of December, on the invitation of the Ijord
Chancellor, Messrs. Trumbull, Gore, and Pinkney accompanied
Mr. King to his lordship's house. His lordship, after the cus-
tomary salutations, observed that he had gone over all the
cases but one which had been presented to the commission-
ers, and that he thought they would fall into three classes:
(1) Cases of condemnation in the high court of appeals; (2)
cases in which there had been decrees of restitution, but with-
out costs or damages, or of condemnation without^freight or
costs; and (3) cases in which the right of appeal had been lost.
In respect to the first class the Lord Chancellor said that the
decrees must stand; that they settled the property and would
not be affected by any act of the commissioners. Neverthe-
less, there. might exist a fair and equitable claim upon the
King's treasury, under the provisions of the treaty, for com-
plete compensation for the losses sustained by such condemna-
tion. In respect to the second class, while the property was
restored, the claimant might not think this sufficient, and
might claim costs and damages; so the decree of condemnation
Digitized by LjOOQIC
NEUTRAL RIGHTS AND DUTIES. 327
might have been legal, but the claimant expected freight. The
captures under the order of the 6th of November fell within
this class. Again, the captor had color of authority to seize
and to send in for adjudication. The court would restore the
property, but would not condemn the captors in costs; and yet
it would be just that the claimants should receive costs and
damages. In respect to the third class, the court of appeals,
said the Lord Chancellor, were obliged in some instances to
refuse the appeal because, a limited time having been allowed
in which to prefer it and that time having expired, the captor
thereby acquired rights not within the discretion of the high
court of appeals to impair. Still the claimant might be able
in a satisfactory manner to account for his not having come
personally forward with the appeal. This was undoubtedly a
case within the provisions of the treaty. The property couhl
not be restored, but the full value might be awarded, and in
such cases it must be paid out of His Majesty's treasury. The
commissioners were not a court of appeals above the high
court of appeals. They were, however, competent to examine
questions decided by the high court of appeals, as well as all
other cases described in the treaty, and they could give
redress, not by reversing the decrees already passed and
re-storing the identical property, but by awarding comi)en-
sation.
On its being suggested that the same embarrassments as
had already occurred might arise in the future, if upon every
objection to the competency of the commissioners a reference
must be made to the respective governments for their instruc-
tions instead of such questions being decided by the commis-
sioners themselves, the Lord Chancellor said '-that the doubt
respecting the authority of the commissioners to settle their
own jurisdiction, was absurd; and that they must necessarily
decide upon cases being within, or without, their competency."
Soon after the conference with the Lord
B6rampti<mofPro- chancellor Parliament adjourned for the
Christmas holidays, and the business of the
commissioners remained suspended until the 24th of January,
when by appointment Mr. King met Lord Grenville at his
office, and the latter, expressing regret at the delays that
had taken place, said he hoped that the commissioners would
go on without further interruption ; that he had sent for the
British commissioners and had told them ^Hhat it was the
Digitized by LjOOQIC
328 INTERNATIONAL ARBITRATIONS.
opinion of the King's government, that they shonid proceed in
examining and deciding every question that should be brought
before them, according to the conviction of their consciences;
in doing which they would examine cases already decided, and
award on them and on all others, according to the provisions
of the treaty, which it would likewise be their duty to consider
and interpret." Lord Grenville added that it had not been
deemed advisable to put anything in writing, as that would
have the appearance of a new and explanatory article. After
further conversation in relation to the dispatch of business by
the high court of appeals the conference was brought to a
close. The board reassembled. The memorials of Mr. Bayard
and the demurrers of Mr. Oostling were withdrawn and new
papers filed, and the commissioners proceeded to make awards.'
After the reassembling of the board several
Award! and DeUys. cases were disposed of by Sir William Scott
and Dr. Nicholl, with the approval of the
board. The first formal awards were made on the 13th of
April 1797 by the concurrence of the two American commis-
sioners and the fifth commissioner. These awards were in the
case of the Betsey, Furlong, master, and of the Salltfj Ghoate,
master, in the former of which sentence had been rendered by
the high court of appeals. The progress of the board was,
however, greatly retarded in other cases by the absence of
1 This account of the controversy touchin^^ the Anality of the decrees of
the high conrt of appeals is taken from a mannscript report of Mr. King to
the Secretary of State of February 20, 1797. This being a contemporaneoiu
and official document, we have preferred it to the account given by Mr.
Trumbull ft*om recollection, which runs as follows:
" My opinion was decidedly with the American members. But I saw
distinctly, that in the eyes of the British gentlemen, the question was of
the deepest importance, and that a decision contradictory to their reveren-
tial estimate of the sanctity of the high court of appeal, would l^ submitted
to by them with extreme reluctance, if it did not produce a remonstrance
against our abuse of authority — a refusal to proceed in the business — ^ulti-
mately a dissolution of the commission ; — and thus, a renewal of angry dis-
cussion between the two nations. I therefore took time to consider, and
finally suggested, that the question shonid be submitted to the lord chan-
oellor (Loughborough) for his decision. He had taken a deep interest in
the negotiation of the treaty, and undoubtedly must know the intentions
of the parties. The British members of the commission readily acceded to
this proposal. An audi ence was asked of the lord chancellor, and obtained,
at which all the members of the board were present. The question was
stated by the senior British commissioner, on which the board requested
his lordship's opinion, and the answer was immediate and frank. ' The
Digitized by LjOOQIC
NEUTRAL BIGHTS AND DUTIES. 329
necessary proofs.^ This is an experience common to all claims
commissions^ and is dae in part to the negligence or ignorance
of claimants, and often in no small degree to the careless pre-
sentation of claims by one government to tlie other. The
American commissioners strongly complained of the inartifi-
cial and fragmentary form in which claims were brought before
the board, and advised that something be done in the United
States to inform parties of the requisite proofs and to impress
upon them the necessity of immediate and punctual attention
to the subject.*
In accordance with tliis advice, the Depart-
Votioe M to Prooft. ment of State issued on the 7th of September
1797 the following notice:
"A Detail of the Proofs necessary to be exhibited before the
Board of Commissioners appointed, under the 7th article of
the Treaty of Amity, Commerce and Navigation, between the
United States and Great Britain, to adjust the Claims of the
Citizens of the United States on Account of illegal Captures
and Condemnations of their vessels, or other Property.
" In all cases the process, that is, copies of the proceedings
in the vice-admiralty courts, or at least so much as is consid-
ered necessary before the Lords Commissioners, should be
brought forward to accompany the claim preferred to the
Board.
constraction of the American gentlemeu is correct. It was the intention
of the high contracting parties to the treaty, to clothe this commission with
pow^r paramount to all the maritime conrts of both nations — a power to
roTieW; and (if in their opinion it should appear just) to reverse the deci-
sions of any or of all the maritime courts of both. Gentlemen, you are
invested with solemn and august authority ; I trust that you will use it
wisely.' This decision of the chancellor terminated the difficulty, relieved
me from a situation of extreme delicacy, aud the board immediately pro-
ceeded in its duties.'' (Trumbull's Autobiography, 194-195.)
" Our commission has experienced some unexpected embarrassments, but
the government has removed them in a way highly honorable and satisfac-
tory. The King's agent objected to our Jurisdiction in a case — a leading
feature of which was that the Lords Commissioners of Appeal Aad affirmed the
ori^al condemnation. When the fifth commissioner, Oore, and myself wore
ready to overrule this objection, our right to decide upon our own jurisdiction
was brought into question! The government has said that both points
were against those who started them, and we are now prosperously under
way again. I have no fears of a fair execution of the seventh article by
this country." (Mr. Pinkney to Mr. Vans Murray, February 7, 1797, Pink-
ney's Life of Pinkney, 29.)
» The board took a recess from July 1797 to November 1, 1797.
3 Messrs. Gore and Pinkney to the Sec. of State April 13, 1797. (MSS.
Dept. of State.)
Digitized by LjOOQIC
330 INTERNATIONAL ARBITRATIONS.
"It is advisable, tliat in all cases the affidavit of the party,
his clerks and others knowing the traDsaction, also copies and
extracts of entries in the books of the party, made at the time
of and relating to the transaction, the truth of which should
be sworn to by his clerks, should be furnished to show that the
voyage and property were as the ship's papers declare them
to be.
"In many cases the party may hold letters and documents
from the shippers and others, written at the time of and con-
cerning the voyage, vessel and cargo, or either, which may be
in question, and which letters may serve to confirm or elucidate
other evidence. Should such be sent, accompanied by the
testimony of the party and his clerks, that they are true, or if
from any cause it may be inexpedient to send the originals, let
the attestation be to the truth of the copy, and that the original
contains nothing more as to that particular voyage or property.
It will also be well to state the reason why the original is not
sent.
" The foregoing will be highly useful in all cases, even in those
cases where there was no act done by the master or by others
to impair or lessen the force and weight of papers found on
board at the time of capture, and where the papers were com-
plete and genuine and the transaction on the face of it perfectly
fair.
"In all cases where the ship's papers were incomplete, where
the transaction was in any degree suspicious from the want of
papers ordinarily used and found on board vessels, or from any
act of the master or others in destroying or concealing papers,
or attempting to secrete property of the enemy, such extracts,
correspondence and affidavits, as aforementioned, will be indis-
pensable to show fully and clearly to whom the property
belonged and to remove all suspicions and doubts as to the
truth and fairness of the transaction.
" There are several classes of cases in which a charge may be
brought forward of wilful omission and neglect, and which
charge it will be necessary to remove.
"It should be understood in the United States, that in some
cases the party captured neglected to make a claim for his
property in the vice-admiralty courts; that in some, after hav-
ing made such claim there, he abandoned it; that in some after
having prosecuted in the vice-admiralty, he failed to claim an
appeal there, or give security for prosecuting his appeal; in
some, the party neglected to claim or enter his appeal in the
courts of appeal within the time limited by law, which time, in
cases where there was a claim filed in the vice-admiralty court,
is limited to nine months from the date of the sentence of the
vice-admiralty, and in cases where there was no claim in the
vice-admiralty, the time is limited to one year from the date of
the sentence. There was at the request of Mr. Jay, a prolon-
gation of the ordinary time for claiming appeals by special
order of his Britannic Majesty. There are others where the
party after having made his appeal neglected to take out the
Digitized by V^OOQ IC
NEUTRAL RIGHTS AND DUTIES. 331
usual process or to serve the same on the captors; and others
where the party did not bring forward copies of the proceedings
in the court of vice admiralty,
"Testimony should be furnished satisfactorily accounting
for the neglect or abandonment in the particular case, where
it happened, and such as will remove the presumption of * wil-
ful omission and neglect;' where there has been an omission to
claim in the vice-admiralty, or an abandonment of the claim
after being duly preferred, or a neglect to claim an appeal in
due season of law, or within the time allowed under the par-
ticular order of his Britannic Majesty, or to prosecute such an
appeal by not taking out and serving the usual process on the
captors, or by not biinging forward copies of the proceedings
in the court of vice-admiralty.
'• In cases where money has been expended in prosecuting for
the property in the vice-admiralty courts in the West Indies or
elsewhere, it is necessary that evidence should be furnishexl,
showing the amount expended and that it was of necessity.
The affidavit of the person paying or receiving the money, or
of those who were present at the payment, or knew of its
being paid, would be satisfactory. In cases where the vessel
has been hypothecated or property sold to provide the security
demanded for prosecuting appeals from the vice-admiralty
courts, evidence should be furnished that such hypothecation
or sale was necessary, the amount sold, the loss and damage
which accrued to the party from such sale or hypothecation.
Evidence of the price at which the property was sold, and that
at which it wouM have sold at the place of destination, when
the vessel would have probably arrived, had she not been
stopped, will show the loss sustained by the sale.
" In cases of demurrage, the loss may be proved by showing
what that vessel, or such a vessel, could have earned during
the detention. This may be by the testimony of those who
hired or let vessels at the time, by the expenses incurred in
victualling the crew, by the hazard to the vessel from the
nature and waters of the harbor or ports where she was detained.
" In cases Avhere a claim is preferred to the Board for compen-
sation, for a loss sustained by capture and condemnation^ the
value of the property at the place of destination at the prob-
able time of its arrival, had it not been prevented by capture,
may be proved by the affidavits of auctioneers, brokers and
others disinterested in the particular case, or in any cases
under the commission : prices current published at sucli times
and places, will afford very satisfactory evidence as to value.
Evidence should be obtained from all the considerable sea-
ports in the United States of the premium paid for insurance
from the various foreign ports, especially in the West Indies
or other foreign ports; .and where the party has insured his
property, he should prove the rate of premium at which he
insured it.
"Department of State, 7th September, 1797."
Digitized by LjOOQIC
332 INTERNATIONAL ARBITRATIONS.
The board proceeded without any notable
OnMtioii ai to Ex- incident until AprU 1798, when a new and
*•-"-**••■" Judicial . .. «•■•««. .r^,
senouB question of difference arose. On the
lOtb of that montb the period of eighteen
months expired within which, by the terms of the treaty, claim-
ants were required to present their x>etitions. When the day
arrived numerous cases still remained unacted upon by the
high court of appeals, and the competency of the board to pass
upon such cases, as well as upon cases in which^ a decree of
restitution having been made, the claimant had not pursued
his remedies against the captors, was immediately brought
into question.
The American commissioners, anticipating such a contin-
gency, had pressed the subject on the British commissioners
during the preceding winter, and had suggested the expediency
of reaching a decision before the term for the filing of claims
had expired. As this was not done the American agent, on
the 10th of April 1708, preferred to the board memorials in
behalf of all American claimants whose cases were qualified,
by the date of the capture, to admit of a complaint under
Article VII. ; and, as many of these cases were still untermi-
nated in the courts, the issue was at once sharply defined.
When the American commissioners announced their purpose
to press for the disposition by the board of claims preferred
in cases in which judicial processes had not been exhausted,
the British commissioners stated that if their colleagues per-
sisted in the attempt to decide such claims they would be com-
pelled to secede, since they believed that the commission had
no authority to render judgment on cases so circumstanced.
The formal consideration of the question was then adjourned,
and after several conferences it was agreed that the British
commissioners should make a statement of the facts to their
government, and at the same time say that the board would be
disposed to delay decision on all cases then pending before the
Lords Commissioners of Appeal until after their adjournment,
which usually took place in August, and on all other cases
until after the Ist of February 1700, unless sooner determined
by the courts, provided that the British commissioners would
concur in such decisions as the board should make.^
1 Messrs. Gore and Pinkney to the Sec. of State, June 8, 1798. (MSS. Dept.
of State.)
Digitized by LjOOQIC
NEUTRAL RIGHTS AND DUTIES. 333
Article VII. of the treaty, like Article VI., provided that
the govemments against which the claims were respectively
preferred should afford redress where full compensation could
not, ^^for whatever reason, be actually obtained, had and re-
ceived'' by the claimants "in the ordinary course of judicial
proceedings." On this question the positions of the commis-
sioners at Philadelphia and at London were precisely reversed.
At Philadelphia it was the British commissioners who con-
tended for immediate awards without requiring the claimants
to exhaust their judicial remedies. At London it was the
American commissioners who assumed this position. Both
were partly in the right and partly in the wrong. To render
awards where the claimants had a substantial judicial remedy
was to obliterate the resort to judicial channels. On the other
hand, to require the claimants to exhaust every possible judi-
cial recourse, whether it promised substantial redress or no,
would in many cases have had the effect of relieving the two
governments of responsibility for their wrongdoing at the
expense of the claimant and of working a denial of justice by
the delay of reparation.
The British commissioners duly reported the
Case of the *« saUy." matter to their government, but a definite re-
sponse not having been made, Mr. Pinkney, at
a meeting of the board on June 11, 1798, submitted in the case
of the Sally J Hayes, master, in which the Lords Commissioners
of Appeal had entered a decree of restitution, but in which the
ordinary remedies against the captors, subsequent to such a
decree, had not been tried, the following motion :
^^That it sufficiently appears in this Case that the claimant
could not at the time of concluding the Treaty actually obtain,
have & receive in the ordinary course of judicial Proceedings
adequate compensation for the loss & damage alleged to have
been sustained by the capture and condemnation complained
of according to the true intent and meaning of the 7th article
of the said Treaty, and that the Board do now proceed to
examine the Merits of this claim and determine whether the
claimant is entitled to compensation for said loss and damage."
At a meeting of the board on the 20th of June the British
commissioners moved that in lieu of the above resolution the
following should be adopted:
^^That as prceedings are still depending before the Lords
Oommissioners of Appeal, where the claimant may in the ordi-
nary coarse compel the sureties who have given bail to answer
Digitized by LjOOQIC
334 INTERNATIONAL ARBITRATIONS.
the appeal, or the owDers of the capturing Vessel, or the sure-
ties on grauting letters of marque, to carry into effect the
sentence of restitution pronounced in this case, it does not
snf!iciently appear that compensation might not at the time of
concluding the Treaty and cannot now be had and obtained in
the ordinary course of judicial proceedings.
^'That it is, in this case, the more incumbent on the claimant
to pursue his remedy against the private parties who are
answerable to him, as it does not sufficiently appear that he
has hitherto used due diligence in endeavoring to carry into
effect the sentence of restitution i)ronounced in his favour, lie
not having exhibited before the court any account of the valne
of the property decreed to be restored in order that such account
duly authenticated might be referred to the Registrar in the
usual way to ascertain such value, but has elected to await
the production in the first instance of the account of sales by
the captors and even for that purpose has suffered a greater
length of time to elapse than is satisfactorily shown to have
been necessarily consumed.
'^That the consideration of the Merits of the Claim be post-
poned for the present and until it shall farther appear that com
pensation cannot be obtained in the ordinary course of justice."
The question being put on the latter motion, it was deter-
mined in the negative. The question was then put on the prin-
cipal motion and carried in the affirmative.
Thereupon the British commissioners directed the following
declaration to be entered on the journals:
"The British Comrars. declare that they do not think them-
selves competent under the words of the treaty or the commis-
sion by which they act to take any share without the special
instruction of the King's Ministers in the decision of any cases,
in which the judicial proceedings are still pending in the ordi-
nary course of justice. But in order to obviate all difficulties
on this subject, they propose that a statement shall be made
by this Board and transmitted to Uis Majesty's Ministers, and
to the Minister Plenipotentiary ot'tlie United States of America,
in order that such arrangements may by mutual consent be
made on this head as may best pronjote the object of speedy
& impartial justice & good understanding. And in the mean
time they think it right to declare their readiness to proceed in
the cases now before the Board, not subject to this question."
The British commissioners accordingly moved —
"That a statement shall be made by this Board & transmitted
to his Majesty's Ministers, and to the Minister Plenipotentiary
of the United States, in order that such arrangements may by
mutual consent be made on this head as may best promote the
object of speedy & impartial justice and conduce to mutual
satisfaction & good understanding."
Digitized by LjOOQ IC
NEUTRAL RIGHTS AND DUTIES. 335
The question being put on this motion, it was decided in the
negative.
The British commissioners then moved —
"That copies of this days proceedings be made & transmitted
to His Majesty's principal Secretary of State for Foreign Affairs
and to the Minister Plenipotentiary of the United States of
America.''
This motion was agreed to, and the board adjourned to
Friday, the 22d of June.
At a meeting of the board on June 28 the
^"^ ® British commissioners, at the opening of the
proceedings, declared, in respect to the case
of the Sally^ Hayes, master, that the minutes of the session of
June 20 having been transmitted to His Majesty's secretary of
state for foreign affairs, and their judgment remaining unal-
tered, their assisting provisionally, and until they should have
received further instructions, at the proceedings of the com-
mission, in any case still pending in the ordinary course of
justice, was not to be understood as in any manner concluding
their own opinions as to the powers of the board, or the deter-
mination which might be taken on the subject by the two gov-
ernments. Mr. Gore then read an opinion on the declaration
of the British commissioners of June 20, and it was entered
on the record. It is printed in the digest.
At a meeting of the board on August 3, 1798,
Arrangement as to ^^ British commissioners announced that
Jadudal Bemedies.
they had been authorized to proceed to the
examination and decision of all claims x^referred to the com-
mission, where it should appear that the report of the regis-
trar and merchants, after a decree of restitution by the lords,
had been confirmed by that tribunal, although no further
judicial proceedings had taken place in consequence of the
confirmation. Dr. NichoU also stated that the Lords Com-
missioners of Appeal had passed an order that in all cases
decided before the Ist day of August, the captors should per-
emptorily produce the account of sales on or before the first day
of the next Michaelmas term; that in all cases to be heard
before the Ist of September the account of sales should be
produced before the 1st of the following January; and that in
all other cases the account of sales should be produced within
one month after the sentence of restitution, in default of which
the registrar, at the request of the claimant, was forthwith to
Digitized by LjOOQIC
336 INTEBNATIONAL ARBITRATIONS.
proceed to ascertain the value by the account produced by the
claimant, liable to the usual objection by the captors.^ After
these announcements, the board was adjourned to the 1st of
October, in order to aiibrd time for the disposition of cases
before the Lords.
The decision of the British Government was
EffiMt of Arrange- p^^^jy^ ^^^^j great satisfaction both by Mr.
King and by the American commissioners.
Taking the order of the Lords as part of it, it dispensed with all
proceedings in the ordinary course after a confirmation of the
report of value, and facilitated the procuring of that report by
removing the difficulty and delay which had been experienced
in obtaining the production of the account of the sales by the
captors. It enabled the board to make awards without await-
ing the interminable process to comx)el the captors to comply
with the decrees of restitution, the British Government, in vir-
tue of assignments, which were provided for in a clause in the
seventh article, taking upon itself to recover the property firom
the captors.*
This arrangement having been effected, the
^'""cOTtftaT *^ ^^^^ court of appeals was almost exclusively
occupied in disx^osing of the cases that fell
within the provisions of the treaty. For some time it had
I Messrs. Gore and Pinkney to the Sec. of State, August 4, 1798. (MSS.
Dept. of St4ite.)
'^Mr. King to the Sec. of State, August 3, 1798. (MSS.) The ordinary
course of proceediugs in the prize courts is set forth in a communication
made by Sir WiUiam Scott and Dr. NichoU to Mr. Jay, September 10, 1794.
(Am. State Papers, For. Rel. I. 494-496; 1 C. Rob. 389-394.) While the
controversy was pending in the summer of 1798 as to the i>owers of
the board in respect to cases still pending in the high court of appeal,
the same eminent i>ractitioners in the courts of admiralty presented the
following account of the ordinary proceedings following a decree of
restitution :
'' When a sentence of restitution has been obtained upon an appeal, the
llrst object is to ascertain the value of the property decreed to be restored,
for which purpose we understand that in the usual course of proceed-
iugs the claimant is entitled to an account of sales from the captor to be
within a short time exhibited on oath; which account of sales is open
to all objections that may be taken by the claimant: and the claimant is
likewise entitled to exhibit his account of what he deems to be the tme
value of the property restored, which is open in like manner to the objec-
tions of the captor. It is to be observed that the claimant is not boand
to call for the captor's account of sales, nor to wait until it is volun-
tarily produced, but may bring forward his own estimate of the value, |
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NEUTRAL EIGHTS AND DUTIES. 337
given special atteution to such cases, and since the beginning of
the year had decided 103 of them, in 61 of which there were
decrees of restitiitiou, in 21 orders for further proof, and in
4 condemnation as to part and orders for farther proof as to
the residue of the cargo. In an appeal for freight the appeal
was rejected, and there were 16 decrees of condemnation. Not
a little delay however was encountered In the high court of
admiralty, owing to the increasing age and infirmities of the
judge, Sir James Marriot. On the 16th of October 1798 he
resigned, and was succeeded by Sir William Scott, by whom
the business was promptly dispatched.
After the reassembling of the board in
^^"^^^^L^^^^* October 1798 its proceedings were continued
^'**^***^' till July 20, 1799, when the British commis-
sioners presented the following paper:
"20 July, 1799.
''Dr. Swabey and Dr. Anstey stated to the Board that they
had received his Majesty's commands intimating to them that
in consequence of information received from his His Majesty's
minister to the United States, that the proceedings of the
Board of commissioners appointed under the sixth article of
the treaty of Amity, Commerce and Navigation between His
Majesty and the United States are suspended by the refusal
and may claim to have that considered as the measure of the restitution^
subject to the objections of the captor.
*' The registrar, upon a view of the accounts, supported by such docu-
ments as the parties choose to bring in, determine in the first instance the
value; this report being liable to the revision of the court, on the objec-
tion of either party. If there is no exception taken to the report, or if
the exceptions are overruled, the report is then^ confirmed. The value
being thus ascertained, a motion issues against the captor and against the
sureties who had given bail to auswer the appeal to the extent of their
bond to bring in or pay over the value, within a time fixed within the dis-
cretion of the court. If any order made by the court upon the captors
either with respect to bringing in the account of sales, if the claimant
requires it, or with respect to bringing in the valae however fixed, is not
complied with, and no satisfactory reason for non-compliance is given, the
court at the prayer of the claimant, issues an attachment against the other
parties, which is executed by the claimant with such diligence as he can
use, wherever the parties can be found, and by any person the claimant
may entrust for that purpose, the usual and most advisable practice being
to employ the officer of the admiralty within that jurisdiction, where the
parties to be attached reside.
** In the case of King's ships, the remedy goes no further than by attach-
ing the commander and his sureties for answering the appeal.. In the case
of privateers it extends to the several owners, who are each bound to the
5627 22
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338 INTERNATIONAL ARBITRATIONS.
of the American commissioners to accede to the determination
of the majority of the members of the Board, and that no
award has hitherto been made to any of His Majesty's sub-
jects soliciting redress, under the said sixth article; it is His
Majesty's pleasare that they decline attending the meetings of
this Board, nntil they shall receive farther instructions upon
the subject; at the same time they are especially instructed to
accompany the communication of this intention on their part
with an express declaration that the King is determined to
fulfill with punctuality and good faith, the engagements which
His Majesty has contracted by his treaty with the United
States, and that whenever the obstacles which appear at pres-
ent to impede the progress of the Commission at Philadel-
phia shall be removed, they will be instructed to resume their
functions."
full extent of the value decreed to be restored, and to the general securi-
ties given at the time of obtaining letters of marque to the extent of their
bond; against whom a monition may beobtaiued as soon as an attachment
is issued against the captor and his sureties on the appeal, without the
necessity of proceeding to serve that attachment on either of them. If
this latter monition is not obeyed, an attachment may issue in like manner
against them. These attachments being in force, the coarse of legal
remedy is terminated.
''An exception to this mode of proceeding takes place where the prop-
erty has been sold, upon each party refusing to take it upon bail pursuant
to the provisions of the prize act, in which case the moneys arising from
the sale are ordered to be brought into court, and deposited by the regis-
trar in the Bank of England, or in some public securities at interest, and
the net proceeds of such sale are to be taken as the full value. A moni-
tion would issue against the persons in whose names the moneys were
deposited to bring them into court, or to pay them over to the claimant.
''If the claimant has. suffered the regular time of distribution to pass
without proceeding in liis appeal, and distribution has actually taken
place, the claimant is barred his regal remedy, otherwise a premature dis-
tribution will not protect the captor against the demand of the claimant.
"In case an inhibition be returned unserved, the captor being dead, a
new inhibition must be taken out against his representatives to the effect
of the former. If that inhibition be returned with a certificate that no
representatives are to ]>e found, proceedings may then be bad against the
owners of the privateer and the sureties to answer the appeal, but in the
case of King's ships against the sureties only.
" We have omitted to mention that if the proceeds can be shown to be
in the possession of any agent or other person whatever, a monition may
be obtained against such person to bring the proceeds into court.
"W. Scott.
"J. NiCHOLL.
"Commons, June 28th, 1798."
A consideration of this paper, in connection with the instmctions given
to the British commissioners for the government of their conduct at the
board, will disclose the substantial character of the relief afforded by the
action of the British Qovemment.
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NEUTRAL EIGHTS AND DUTIES. 339
Though the statement in the foregoing paper
1802°° *^*^ °^ award had been made to any claim-
ant under Article VI. of the treaty was not
entirely accurate, it is true that the board had been broken up
in the manner described, and that the result of the interrup-
tion was substantially such as was declared. The retaliatory
8usi)ension of proceedings under Article VII. continued for
more than two years and a half.^
On the 8th of January 1802 however Lord Hawkesbury and
Mr. King concluded a convention by which the claims under
Article VI. were settled for the sum of £600,000, and the arti-
cle itself, except so far as it defined the course of procedure
under Article VII., annulled. It was also provided that the
commissioners under the latter article should, immediately
after the signature of the convention, '^ reassemble and proceed
in the execution of their duties according to the provisions of
the said seventh article, except only that, instead of the sums
awarded by the said Commissioners being made payable at the
time or times by them appointed, all sums of money by them
awarded to be paid to American or British claimants, accord-
ing to the provisions of the said seventh article, shall be made
payable in three equal instalments, the first whereof to be paid
at the expiration of one year, the second at the expiration of
two years, and the third and last at the expiration of three
years next after the exchange of the ratifications of this con-
vention." These terms of payment were the same as those
prescribed in respect of the indemnity of £600,000 for the
claims under Article VI.
The ratifications of the convention were exchanged at Lon-
don on July 15, 1802, but in. accordance with its requirements
the commissioners under Article VII. reassembled on Monday,
the 15th of the preceding February, and proceeded in the
execution of their duties.^
Soon after the commissioners reassembled a
^ntewrt * question arose as to the allowance of interest
on claims during the period of the suspension.
It was finally resolved on the 30th of April, by the concurring
^ ''We have been stopped by the difliculties that have occurred under
the 6th article of the treaty, and not by anything depending on ourselves,
or connected with our own duties. * * * The commission in America
has been wretchedly bungled. I am entirely convinced that with dis-
cretion and moderation a better result might have been obtained.'' ( Wm.
Pinkney to J. Pinkney, August 27, 1800, Pinkuey's Life of Pinkney, 37.)
2 Messrs. Gore and Pinkney to the Sec. of State, February 17, 1802.
(MSS. Dept. of State.)
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340 INTERNATIONAL ARBITRATIONS.
votes of tlie two American commissioners and the fifth com-
missioner, that interest should be allowed for the whole period
from the time the claim arose to the date of the award. A
motion to this effect was made by Mr. Gore on the 16th of
April, and was supported by Mr. Pinkney in a forcible opinion
which is printed in the digest. The view stated by the British
commissioners was that, as the treaty of 1794 did not contem-
plate the interruption of the proceedings, it did not intend
to authorize the allowance of interest during such interrup-
tion ; and, moreover, that such an allowance of interest was
not provided for in the convention under which the board
reassembled.
Among the questions determined by the
*^ Ord "^ board, none was more elaborately argued than
that of the legality of the orders in council
which directed the stopping and detention of all vessels laden
wholly or in part with previsions and bound to any port in
France, and the sending of them to such ports as might be
most convenient, in order that such articles might be pur-
chased in behalf of the British (Government. An excellent
summary of the contentions on this subject, of the grounds on
which the legality of the order was maintained on the one
hand, and its illegality pronounced by the board on the other,
is given by Wheaton in his Elements of International Law.'
The first ground on which the orders were justified was that
at the time of their issuance and enforcement there was such
a prospect of reducing the enemy by fannne as made provisions
bound to his ports so far contraband as to justify their seizure
and appropriation by Great Britain, that government paying
the invoice price, a reasonable mercantile profit thereon, and
freight and demurrage. There was, so it was argued, support
for this view not only in the works of publicists, but also in
that stipulation of Article XVIII. of the treaty of 1794, which,
after reciting that there was '^difficulty" in "agreeing on the
precise cases, in which alone jjrovisions and other articles, not
generally contraband, may be regarded as such," required th;at
*' whenever any such articles, so becoming contraband accord-
ing to the existing law of nations," should for that reason be
seized, they should not be confiscated, but should be paid for,
and that the captors, or, in tlieir default, the government
^ Lawrence's editioD, 1855, pp. 555-56X.
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NEUTRAL RIGHTS AND DUTIES. 341
uuder whose authority they acted, should pay the masters
or owners of the vessels 'Hhe full value of all such articles,
with a reasonable mercantile profit thereon, together with the
freight, and also the demurrage" incident to the detention.
To this argument reply was made that the stipulation of Arti-
cle XVIII., since it referred to "the existing law of nations"
as the criterion, did not effect any alteration in the rules which
previously governed the subject; and that, according to those
rules, the prospect of reducing the enemy by famine must be
actual and immediate, as in the siege, blockade, or investment
of particular places, and not vague and impalpable. In the
case before the board there was no such prospect. While the
enforcement of the order was productive of inconvenience to
the enemy, there was no possibility of producing an actual
famine by it.
The second ground assumed in support of the orders was that
they were necessary to Great Britain, which was at the time
threatened with a scarcity of provisions. To this assumption
answer was made that the necessity which would warrant such
a method of supplying a nation's wants must be real and immi-
nent, and without other means of relief; that the offer of better
prices in English than in French ports would have attracted
importations; and that in reality after the orders were carried
into effect an offer by the British Government of a bounty on
imported articles soon caused the market to be overstocked.
With such arguments the contention that provisions had prop-
erly been treated as contraband was met and overcome. The
opinions of Messrs. Gore, Pinkney, and Trumbull in the case
of the Neptune^ printed in the digest, will more fully disclose
the various grounds on which the orders were determined to
be illegal.
The proceedings of the board were brought
cioMofProoeedmgs. to a close ou the 24th of February 1804, all
the business before it having been completed.*
The amount and progress of the business before it at various
stages of its existence are disclosed by reports made at the
periods of its suspension and conclusion.
When its proceedings were interrupted in
^"rJ^tS"*" ^^^^^ ^'^^^ ^*y ^^^ controversy touching the
disposition to be made of cases still pending
in the courts, the awards against Great Britain made and
' Messrs. Gore and Pinkney to Mr. Madison, Sec. of State, February 24,
1804. (M8S. Dept. of State.)
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342
INTERNATIONAL ARBITRATIONS.
completed by tbe board, and payable on tbe 5tb of that month,
amounted to £34,516 16s. 2^d., while the claims disposed of
outside by Sir William Scott and Dr. NichoU, in 39 cases for
costs and damages, amounted, with interest to the 5th of June,
to £24,669 7s. Id.* During the same period the records disclose
awards on British claims against the United States to the
amount of $33,590.60. Congress on January 15, 1798, appro-
priated $52,000 to pay awards of the commission.
When the proceedings of the board were suspended in July
1799 in consequence of the disruption of the commission at
Philadelphia, the whole amount of the business then trans-
acted, as shown by a statement made November 16, 1799, by
Mr. Trumbull to Mr. King, was as follows :*
American claims.
Cases.
Amount claimed.
Amount
awarded.
BiBmiftaed
37
£ t. d.
72,864 12 0
& s. d.
Withdrawn
i
Penilin ff
1,307,497 12 3
129,968 16 2
Awarded --
91.358 17 11}
Total
478
1,510,331 0 5
91,358 17 111
British claims.
Dismissed
10
43
5
£ 4t. d.
107,993 14 24
256.531 0 0
6.733 9 2
£ s. d.
Pending
Awarded
7,558 15 9
Total
58
371.258 3 4^
7,558 15 9
The amount of the awards against the United States was
given by the American commissioners as $33,594.64.
The awards against Great Britain after the reassembling of
the board in February 1802 amounted to £1,225,901 148. lOd.''
By the manuscript reports of Messrs. Gore and Pinkney it ap-
pears that from the time of reassembling to July 15, 1803, 467
such awards were made in 300 cases, the awards amounting to
£1,083,990 3s. 8d. Between July 15 and August 19, 1803, 23
> Mr. Cabot to Mr. Pickering, Soc. of State, July 28, 1798. (MSS. Dept.
of State.)
2 Trumbull's Autobiography, 263.
3 By an act of February 10, 1811 (2 Stats, at L. 647), Congress appro-
priated $22,392.67 to compensate Mr. Erving for the receipt and payment of
awards made in favor of American citizens while he was agent, at the
rate of 2| per cent on the amount of the awards actually received by him.
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Google
ifEUtBAL RIGHTS A^D DUttES. 343
awards were made, ainoanting to £89,341 4s. 3d. Subsequently
22 awards were made (in 22 cases), amounting to £51,660 16s.
lid. In all, between February 1802 and the final adjournment,
512 awards were made in favor of American claimants.
It has been seen that the awards in favor of British claimants
prior to the suspension of the board in 1799 amounted to
$33,594.64. ^ After the reassembling of the board in 1802 seven
awards were made against the United States, amounting to
$109,833.50. Of these awards, 1 was made prior to July 15,
1803; 2 between that date and August 22, and 4 subsequently.
Thus the total amount of the awards against the United States,
before and after the suspension of the proceedings of the
board, appears to have been $143,428.14.
By an act of November 16, 1803,* a sum not to exceed
$50,000 was appropriated to carry into effect Article VII,, and
the accounting oflScers of the Treasury were authorized to
allow interest, not exceeding 6 per cent, on one-third part of
the amount of any award made in pursuance of the article
and presented to the Treasury prior to the passage of the act,
to be calculated from the time when the award should have
been presented. By an act of November 24, 1804, a sum not to
exceed $70,000 was appropriated, generally, to carry the
article into effect.^
Mr. Trumbull states that in a copy of the
Cabot second volume of the Opinions of the Commis-
sioners, which was in his possession, there was
the following entry:*
"Mr. Samuel Cabot, who was one of the assess-
ors of the board, and who, from his other relations
to the claims of American citizens for compensa-
tion, on account of captures by British cruisers,
previous to the treaty of 1794, had an intimate
knowledge of all that was claimed and paid, states
that the amount awarded by the board, and paid
by the British government to have been in pounds
sterling £1, 350, 000
» By an act of March 3, 1801 (2 Stats, at L. 202), Congress appropriated
$58,864, in general terms, to carry the treaty into effect.
'2Stat8. atL. 248.
3 2 StatB. at L. 307. In an opinion of December 24, 1804, the Attorney-
General of the United States advised, in the case of an award against the
United States, that the government had only to see that the money was paid
to the persons in whose favor it was awarded, and that for the adjustment
of contested interests the parties mast resort to the courts. (1 Op. 153.)
^ Autobiography, 237,
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344 INTERNATIONAL ARBITRATIONS.
"Amounts recovered from the captors, on what
were called Martinique cases, meaning captures
in the West Indies £100,000
"Amounts produced to claimants from other
cases of restitution 160, 000
"That the vessels captured, under what were
called * Provision Orders,' viz — orders to capture
vessels bound to France, and laden with provi-
sions, were in number one hundred and twenty,
and that there must have been received from the
British government, at least £6,000 each 720, 000
£2,330,000"
"Amount in dollars, allowing five dollars to the
pound sterling $11, 650, 000
"This was," says Mr. Trumbull, "the state-
^*^^ ^ *" ment of Mr. Cabot, whose accuracy and knowl-
edge of the subject were beyond all doubt.
* ♦ • Prom the foregoing statement it appears, that the
large sum of eleven million six hundred and fifty thousand
dollars was recovered by American citizens from the hands of
British captors, by, or in consequence of, the abused treaty
of 1794, negotiated by Mr. Jay. The whole of this sum was
promptly and punctually paid to each complainant, or his
assignee; for, after a careful and accurate examination of the
merits of every case of complaint, the awards of the board
were made in favor of each individual, in the form of an order
to pay, and payable at the treasury of Great Britain ; nor do I
recollect even to have heard a single complaint, of the delay
of an hour, in any instance of an award presented for pay-
ment.'^ ^
The compensation allowed to the American
lemm, commissioners in London was $6,667.50 a year.*
Appropriations were duly made for the com-
pensation of the American commissioners and half the compen-
sation of the fifth commissioner, for the salaries of the assessor
and agents on the part of the United States, and for clerk hire
and contingent expenses. Large sums were expended in ob-
taining evidence in the West Indies. It was estimated that the
expenses of the United States under and in connection with
^Autobiography, 239.
« Act of May 6, 1796. (1 Stats, alb L. 460.)
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NEUTRAL RIGHTS AND DUTIES. 345
Article VII. up to July 1, 1800, amounted to $231,351.28. This
estimate was coustituted as follows:
Obtaining papers from the West Indies $24, 392. 98
Paid to Samuel Bayard 14, 551. 09
proctorsin London prior to August 19, 1797 . 32, 185. 40
Mr. Gore 28,333.32
Mr. Pinkney 29, 090. 85
Mr. Trumbull 23, 943. 97
Mr. Cabot 9, 883. 72
Samuel Williams 88, 727. 00
251, 108. 33
Oosts recovered in two suits, deducted 19, 757. 05
Total - 231, 351. 28
The amount subsequently expended does not appear.^
Soon after the arrival of Messrs. Gore and
ImxnimitiM of Com- -r^. i . -r ■■ ^^^r^
^^^ Pmkney m London m 1796 a question was
raised as to the immunities to which they were
entitled under the law of nations in their character of commis-
sioners. The consideration of this question was occasioned by
the fact that, on their arrival, one of them was required to pay
on articles brought with him duties which were not, under
similar circumstances, required of public ministers; and in
November of the same year officers of the government called
at their houses and took down their names and those of their
servants for enrollment in the militia. In consequence of these
incidents Messrs. Gore and Pinkney addressed to Mr. King a
letter, in which, without specifying the particular grounds of
1 See acts of May 6, 1796 (1 Stats, at L. 460), appropriating $80,808 to
defiray the expense of executing the treaty; March 3, 1797 (Id. 516), appro-
priating $50,000 for defraying expenses in connection with prize causes
pending in English and other admiralty courts; March 2,* 1799 (Id. 723),
appropriating $16,666.67 for salaries of the commissioners under Article
VJI.y and $9,833.33 for salaries, clerk hire, and contingent expenses of 'Hhe
two agents residing in England," in connection with the prize causes; May
7, 1800 (2 Id. 66), appropriating $16,444 for the commissioners and $9,000 for
the agents and their expenses; May 1, 1802 (Id. 188), appropriating for sal-
aries of the commissioners $24,066.67, and for the salaries and expenses of
''the agents of the United States in London and Paris/' $29,000; March 2,
1803 (Id. 215), appropriating for the salaries of the commissioners and
assessor, and for contingent expenses, $22,566.67, and for the salaries and
expenses of the agents in London an<l Paris, $29,000. At one time there were
agents for claims on account of spoliations at London, Paris, Copenhagen,
and The Hague. See acts of April 16, 1816 (3 Stats, at L. 283); March 3,
1817 (Id. 358) ; April 9, 1818 (Id. 423) ; April 11, 1820 (Id. 561).
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346 INTEKNATIONAL ARBITRATIOliS.
their inquiry, they claimed ^^the essential immunities attached
to public miuistei-s," and requested him to ascertain the opinion
of the government on the subject.^ Mr. King inclosed a copy
of the letter to Lord Grenville, saying that, though nothing ex-
plicit in relation to the privileges and exemptions of the com-
missioners had been settled between the two countries, he had
reason to believe that it would <^ correspond with the opinion
and practice of the Government of the United States, that the
persons acting as commissioners under the late treaty should
be exempt from those taxes and personal services of various
kinds to which the citizen subjects of the respective coun-
tries are liable." He requested Lord Grenville's opinion ou
the subject.*
Some time after this note was addressed to his lordship
Mr. Hammond, then under secretary, showed Mr. King an opin-
ion of the law officers of the Crown, to whom his note and the
letter of Messrs. Gore and Pinkney were referred, adverse to
the commissioners' claim of privilege; and on the envelope
inclosing the opinion there .was an indorsement by Lord Gren-
ville intimating that it might be advisable not to pursue the
question further. Mr. King however asked for an answer to
his note, and on January 20, 1797, received in reply the opinion
of the law officers, who at this time were Sir William Scott,
afterwai'd Lord Stowell, John Scott, afterward Lord Eldon, and
John Mitford, afterward Lord Redesdale. Their opinion bore
date December 22, 1796. Adverting to the fact that in the
1 The letter was as follows :
"Sir: Since our arrival in this country^ applications have been made to
us, for imposts and duties incompatible with the exemptions, to which we
consider oarselves entitled by our official character.
''Without any particular observations, your own mind will bo apprized
of the reasons, which led us to expect the essential immunities attached to
public Ministers ; and which, we can not but believe, will be satisfactory
to the British Ministry, if any doubt is entertained by them.
''A circumstance has recently occurred that renders it necessary as well
as prudent, that we should know the immunities & exemptions which we
may justly claim. We shall therefore, Kir, be much obliged, if yoa will
take an early opportunity of aacertaining the opinion of this Government
on the subject.
"We are, Sir, "C. Gork,
"The Hon. Rufus King, i&o., &c., &c."
3 Mr. King to Lord Grenville, November 29, 1796, MSS. Dept. of State.
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NEUTRAL RIGHTS AND DUTIES. 347
letter of Messrs. Gore and Pinkney the character of the appli-
cations to them for imposts and duties was not specified, but
were merely represented as incompatible with the exemptions
to which they considered themselves entitled by their official
character, they said:
''We apprehend Messrs. Gore and Pinkney have no letters
of credence to his Majesty, and have not been received by his
Majesty with the formalities usaally practiced in the reception
of foreign public ministers, but are in the character of Amer-
ican citizens, resident in this country, under the protection of
the American Minister, tho' invested by the United States
with the character of Commissioners for a special purpose,
under the stipulations of the late treaty between the two coun-
tries, authorizing a Commission of five persons of whom Mr.
Gore & Mr. Pinkney are two.
" The act of the 7 Anne 12 < for preserving the privileges
of ambassadors & other public ministers of foreign princes and
states,' applies only to ambassadors or other public ministers
of any foreign prince or state authorized, & received as such by
his Majesty, and we apprehend that as Mr. Gore & Mr. Pink-
ney have no letter of credence to his Majesty, and have not
been received with the formalities usually practiced in the
reception of foreign ministers, they cannot be deemed within
the protection of that act, so that any privileges and exemp-
tions which they can claim must we apprehend be founded
either on the general law of nations, as recognized by the laws
of this country, or by special provisions between the two coun-
tries, & due aathority acting thereon.
<' It seems therefore under all the circumstances highly expe-
dient that the nature & extent of the privileges & exemptions
claim'd by Mr. King on behalf of Messrs. Gore & Pinkney,
and the grounds on which he claims such privileges & exemp-
tions on their behalf should be clearly and explicitly stated to
enable us to form a proper judgment thereon, & under this
impression we take the liberty of suggesting to your Lordship
the propriety of requesting to have such statement before we
venture to give any opinion on a claim which appears to us
new in its circumstances and important in its consequence."
There does not appear to have been any further discussion
of the subject with the British Government, but in order that
they might not seem to have made ^< a claim entirely unibunded
in the law or practice of nations," Messrs. Gore and Pinkney
on the 7th of February 1797 addressed to Mr. King an elab-
orate exposition of their views on the subject. The privileges
and immunities to which they thought themselves entitled by
their office were, they said, *'an exemption from the jurisdic-
tion of the country, and from the payment of those taxes, to
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348 INTERNATIONAL ARBITBATI0N8.
which public ministers are not liable." The reasons on which
these exemptions were accorded to public ministers applied
equally to those who under the stipulations of a treaty were
to hear and decide upon claims against the government within
whose territory they resided. Nor could they hold them-
selves to be under the protection of the American minister.
It was the law that gave protection. They bore no relation
to the American minister that could insure it. They should
be independent of either government. As to what consti-
tuted a public minister, it was their opinion that if a person
had a letter of credence, a power, or some commission fipom the
sovereign of a country, if he was acknowledged and allowed
by the sovereign of the country to which he was sent in the
character communicated by his commission, and if his tnist
was to transact public affairs or business between nation and
nation, such person was " a public minister, under whatever
name, title, or style he may be authorized and commissioned,
altho' he have no letters of credence to the sovereign, or be
not received by him, with any particular formalities." '
In a letter to Mr. Pickering of July 29, 1797, Messrs. Gore
and Pinkney inclosed copies of the correspondence and of the
opinion of the law officers on their claim of privilege, and said:
*^The ojnnion of His Majesty's law officers rendered it proper
that the grounds on which we found our opinion should appear.
* * * And thus it remains. We are liable to pay all the
taxes that are assessed on British subjects; and we do pay
them of course. Whatever opinion we entertain of this pro-
cedure, we have not the smallest desire of ever again raising
the question. There is a personal delicacy which in our rela-
tion to the British Government absolutely forbids any further
discussion of it, either by ourselves or others." In conclusion
they suggest that in any future arrangements of a similar char-
acter it may be advisable to insert a clause expressly commu-
nicating the character and privileges of a jmblic minister to the
commissioners.
In the United States it has been the practice to extend to
persons acting in such a capacity as Messrs. (iore and Pinkney
the free entry of articles belonging to them, but this has been
' In the course of their exposition Messrs. Gore and Pinkney cited Vat-
tel, Book IV. sees. 25, 122; Wiquefort, Book 1. chap. 1, p. 2; chap. 5, pp.
30, 40, 41; Martens, 206, 207, 221; 3 Burrows, 1481, 1676; 4 BlackBtone's
Comm. 70.
Digitized by LjOOQIC
NEUTRAL RIGHTS AND DUTIES. 349
done as a matter of courtesy and not as a matter of right.
Whether such i>er8on8 would be accorded all the i)rivilege8
and immunities of diplomatic agents has never, I believe, been
determined, and may be doubted. In many cases the foreign
members of claims commissions in the United States have
been diplomatic officers; and in at least one case, that of the
commission under the treaty with Mexico of 1839, the foreign
goverment has specially invested its commissioners with a
diplomatic character in order that they might possess the im-
munities of public ministers.
Digitized by LjOOQIC
CHAPTER XL
DIFFERENCE AS TO THE TREATY .OF GHENT:
AWARD OF THE EMPEROR OF RUSSIA 5 MIXED
COMMISSIONS; DOMESTIC COMMISSIONS.
1. AWABD OF THE EMPEEOR OF RUSSIA.
During the war between tlie United States
by BritiBh Forces.
PoMawon of Slaves ^^^^ ^^^^^ Britain of 1812 the British naval
forces occupied numerous bays and rivers in
the United States, and debarked troops who established posts
at various places on the coast, near some of which there was
a large slave population.^ In time these naval and land forces
came into possession of a considerable number of slaves, some
of whom they received as voluntary fugitives, and others of
whom they took in predatory excursions. Others yet were
seduced to run away from their masters. On the 2d of April
1814 Admiral Cochrane, commanding His Majesty's forces on
the North American station, issued the following proclamation :*
^^ Whereas it has been representiid to me that many persons
now resident in the United States have expressed a desire to
withdraw therefrom, with a view of entering into his Majesty's
service, or of being received as Free Settlers in some of his
Majesty's Colonies
*' This is therefore to give notice
^^That all those who may be disposed to emigrate from the
United States will, with their families, be received on board
his Majesty's ships or vessels of war, or at the military posts
that may be established upon or near the coast of the United
States, where they will have their choice of either entering into
his majesty's sea or land forces, or of being sent as Free settlers
' Precis de la question, ou expo8<^ abr6g<S du diilerend qui est survenu
par rapport an premier article du trait<S de Gand, eutre les ^tats-Unis
d*AiD<$rique et I'Angleterre, aveo des pi^ces justificatives, h St.-P^ters-
bourg, 1821.
« Niles* Register, VI. 242,
350
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INDEMNITY FOR SLAVES. 351
to tbe British possessions in North America or the West Indies,
where they will meet with all due encouragement.
*' Given under my hand at Bermuda this 2nd day of April,
1814.
"Alexander Cochrane.
"By command of the Yice Admiral
"William Balhetchet."
Though this proclamation was not addressed eo nomine to
slaves, yet its meaning and object were manifest. Being widely
distributed by the British commanders, it had the effect of
attracting a considerable number of slaves, some of whom were
transported to the Bahamas or other British possessions, while
many remained with His Majesty's sea and land forces at their
stations and posts in the United States. This was especially
the case in the Chesapeake Bay and at Cumberland Island in
Georgia.
By Article I. of the treaty of peace concluded
Bettorationof Prop- ^^ ^^^^^ ^^ ^^^^ 24th of December 1814 it wjuj
orty.
provided that "All territory, places and pos-
sessions whatsoever, taken by either party from the other dur-
ing the war, or which may be taken after the signing of this
treaty, ♦ ♦ ♦ shall be restored without delay, and without
causing any destruction or carrying away any of the artillery
or other public property originally captured in the said forts or
places, and which shall remain therein upon the exchange of
the ratifications of this treaty, or any slaves or other private
property." It is to be observed that this provision limits the
obligation as to the artillery or other public property to such
as was originally captured in the fort or place to be restored
and still remained therein.
After the exchange of the ratifications of
^'^^te^Pto OTtT^" *^® treaty on February 17, 1815, commission-
ers were appointed on the part of the United
States to receive and make the necessary arrangements re-
specting the public and private projierty in the possession
of the British forces. When they came to execute this com-
mission they encountered on the i>art of the British command-
ers an opinion contrary to their own as to the construction of
the treaty. When applied to by the American commissioners
for the restoration of "all slaves, and other private property,
which may now be in possession of the forces of His Britannic
Majesty," Captain John Clavelle, who commanded in the Ches-
apeake, replied: "I understand the first article of the treaty
Digitized by LjOOQIC
352 INTERNATIONAL AKBITRATIONS.
relative to private and public property thus, viz, — 'AH territory,
places and possessions whatsoever taken from either party by
the other daring the war, or which may have been taken after
the signing this treaty, ♦ ♦ • ghall be restored without
delay and without causing any destruction or carrying away
any of the artillery or other public stores, or any slave^t or other
private property originally captured in the said forts or places
and which shall remain therein upon the exchange of the
ratification of this Treaty.' "
In other words, applying to private property
lifi^onasto ^^^ game limitation as was imposed on the
obligation to restore public property, Captain
Glavelle took the ground that the treaty meant that only such
slaves or other private property should be delivered up as were
'* originally captured" in the forts or places to be restored, and
as should still ^'remain therein upon the exchange of the rati-
fication of the treaty." At Tangier Island, for example, which
had been taken by the British during the war, the British
forces refused to restore the slaves then in tlieir possession
because they were not originally captured there. Still less,
they said, could they give up negroes on board of British men
of war. Such negroes not only could not be said to remain in
the forts or i)laces where they were originally captured, but by
entering into the British service they had made themselves
free. The same rule was applied as to slaves in Georgia,
Louisiana, and elsewhere. Slaves originally taken and still
remaining at the place where they were found at the exchange
of the ratifications of the treaty were delivered up; but those
that were taken or received from other places, or carried or
received on board of men of war, before the exchange of the
ratifications, were not delivered up.*
^Am. State Papers, Kor. Kel. IV. 106. A similar question arose under
the treaty of peace of 1783. {SuprUf p. 273, Am. State Papers, For. Rel. I.
122, 123, 485.) It was merged in the Jay Treaty of 1794. (S. Ex. Doc. 46, 31
Cong. 1 seas. ; Am. State Papers, For. Kel. 1. 518. ) lu Georgia many negroes
came into the possession of the British at Cumberland Island, which was
fortified by Admiral Cockbum after the battle of New Orleans. (Brenton's
Naval History, V. 203.) A British periodical in 1815 pablished the report
that *'au oflScor of rank " had restored 150 negroes in Georgia "contrary
to the faith" of Admiral Cochrane's proclamation. It commented upon
the alleged restoration as " an extraordinary transaction." (The Naval
Chronicle, XXIV, 213.)
Digitized by LjOOQIC
Pofltion of United
States.
INDEMNITY FOR SLAVES. 353
The GovernmeDt of the United States main-
tained that there was in the treaty a clear
distinction between the obligation as to public
and that as to private property, and that the stipulations
applied to the one could not be wholly applicable to the other.
The treaty provided that there should be no *' destruction or
carrying away any of the artillery or other public property
* • * or any slaves or other private property.^' The stipu-
lation as to the destruction of public property was, said the
United States, wholly inapplicable to slaves. It not infre-
quently happened that, in surrendering territory by a treaty of
peace, the party withdrawing stipulated a right to destroy the
fortifications in its possession and to carry away or destroy the
artillery and munitions of war in them ; but it was believed that
no example could be found of a stipulation to authorize the
destruction of private property of any kind, especially slaves.
Equally strange would be a stipulation not to destroy them.
Moreover, if slaves and other private property were placed on
the same footing as artillery and other public property, the con-
sequence would be that all would be carried away. Few, if any,
of the slaves were taken in forts or other xilaces where the
British troops happened to be at the exchange of the ratifica-
tions. The fact was well known to the negotiators of the treaty
that the greater number if not all the slaves referred to were
taken from proprietors inhabiting the country bordering on
the bays and rivers emptying into the Atlantic Ocean. The
United States, it was insisted, were "entitled to all the slaves
and other private property which were in the possession of the
British forces, within the limits of the United States, on the
exchange of the ratifications of the treaty, whether they were
in forts or British ships of war." *
The United States also maintained. that it
Protooole at Ohe&t was shown by the protocols of tlie conferences
at Ghent that it was not the intention of the
treaty to apply to private property tlie limitations affixed to
the duty to restore public property. In the first project of the
treaty, which was presented by the American plenipotentiaries,
there was the following passage: "AH territory, places, and
possessions, without exception, taken by either party from the
other during the war, or which may be taken after the signing
•Am. state Papers, For. Rel. IV. 106.
6627 23
Digitized by LjOOQIC
354 INTERNATIONAL AEBITBATIONS.
of this treaty, shall be restored without delay, and withoat
causiug any destruction or carrying away anyartillery or other
public property, or any slaves or other private property."
The British plenipotentiaries returned this project with the
following alteration or counter proposition: "All territory,
places and possessions, without exception, belonging to either
party, and taken by the other during the war or which may
be taken after the signature of this treaty, shall be restored
without delay and without causing any destruction, or carry-
ing away any artillery or other public property, or any slaves
or other private property, originally captured in the said forts
or places, and which shall remain therein upon the exchange of
the 'ratifications of this treaty."* The American plenipoten-
tiaries, on examining this clause, proposed to transpose the
words "originally captured in the said torts or places, and
which shall remain therein upon the exchange of the ratifica-
tions of this treaty,'' so as to place them after the words " public
property.^' This prox)osal the British plenipotentiaries agreed
to,^ and the treaty was so drawn. The United States claimed
that the history of the stipulation, as thus disclosed, rendered
it clear that the limitation, originally proposed by the British
plenipotentiaries, upon the restoration of private as well as of
public property was by the treaty confined to public property,
and that the obligation to restore slaves and other private
property was unaffected by it.
On the other hand, the British Government
^"^B^^tain ^ maintained that the construction contended
for by the United States would release the
stipulation respecting private property from all the conditions
under which public i)roperty was to be restored; that if the
words "carrying away" applied to private as well as to public
property, it was entirely arbitrary to say that the intervening
words did apply to the one but did not apply to the other,
though the words "carrying away" grammatically governed
both; that while the stipulation against the destruction of
property certainly applied to private property other than
slaves, the question whether it applied to slaves was ininiato-
rial, since the point in dispute related solely to slaves carried
away; that if the arbitrary construction contended for by the
United States were admitted, there would be no limitation as
1 Am. Stat© Papers, For. Rel. HI. 735.
» Am. Stat© Papers, For. I?el. III. 742.
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INDEMNITY FOR SLAVES. 355
to the place where private property was originally captnred,
nor as to the place from whence it was not to be carried away,
and that all merchant vessels captured on the high seas, and
tlieir effects, must be restored, even if they were not within
the limits of the United States at the time of the exchange
of the ratifications of the treaty, and that all carrying away of
private property, even from the commencement of the war,
would be rendered unlawful. It was indeed true, said the
British Government, that, according to the American con-
struction, the private property in contemplation was limited to
such as had been originally captured within the territories of
the United States, and to such as remained there, whether on
land, or in British ships of war, or in British vessels. But if
the treaty were examined it would be found to be impossible,
without such omissions and interpolations as could never hav^
been intended, to extract from it these limitations without
ascribing to the same stipulation the effect of placing private
and public property at once under the same and dissimilar
conditions. As to private property on shipboard, neither the
first article itself, nor any discussions concerning it, referred to
the restitution of such property; and the United States could
have no claim to property which had, previously to the
exchange of ratifications, been removed on shipboard, or which
could not be proved to have been at that time in places directed
to be restored.
As to the negotiations at Ghent, the British Government
contended tliat the transposition of the words "originally cap-
tured in the said forts or places, which shall remain therein,
upon the exchange of the ratifications of this treaty," so as to
make them follow immediately after the words "public prop-
erty," was a mere verbal alteration not at all affecting the
sense of the article; and that if the American plenipotentia-
ries entertained a different intention they did not disclose it.
Indeed, the British chargd at Washington declared that he
had no hesitation in stating his "belief founded on the best
means of information, that at the time the article was framed,
it was meant that the prohibition against carrying away slaves
and private property should be taken in connection with the
restoration of territory, places, and possessions; and that had
it been supposed by his Majesty's plenipotentiaries, at Ghent,
that the words were susceptible of the construction now given
to them, and that a claim would be founded upon them for the
Digitized by LjOOQIC
356 INTERNATIONAL ARBITRATIONS.
delivering up of persons who bad sought refuge daring the
war on board of British ships, their insertion would have been
decidedly objected to, and others proposed."*
To the argument that as the words "carry-
^^%utM^^^ ing away" applied to both members of the
sentence and both descriptions of property,
public and private, it was therefore arbitrary to say that the
intervening words applied to one but not to the other, the United
States replied that the fallacy of the argument consisted in the
inference that, because the verb was common to both descrip-
tions of property, the incidents exclusively applicable to one
species must also be made common to the other. Reduced to
a rule of grammar, this rule meant that whenever one verb
governed two substantives in the same sentence every epithet
^ipplied to either must be understood as also applying to the
other.
To the argument that unless the limitations as to time and
place applicable to public property were also applied to pri-
vate property, merchant vessels captured on the high seas and
their effects must be restored even if they were not within the
limits of the United States at the exchange of ratifications,
and that the obligation to restore might be carried back even
to the commencement of the war, the United States answered
that "there is a limitation of universal application to the mean-
ing of words, that they shall be understood with reference to
their subject matter. A stipulation to evacuate places with-
out carrying away private property, could certainly need no
qualifying limitation of time or place, to exclude the coustmc-
tion that those who evacuated should not carry away tkeir own
property; or property which was not in the place to carry
away. The words, without any expressed limitation, must in
common sense be applied to property in the place and not their
own. As to the merchant vessels and their effects captured on
the high seas, as they are by the general Laws of Nations prize
of war, they are from the time of capture considered, and by the
second article of the treaty are recognized, as the property of
the captors and as such could not be included in the stipulation
not to carry away private property, even though they might
have been, at the time of the ratification of the treaty, in
places to be evacuated."
As to the transposition of the words of the article by the
1 Am. state Papers, For. Rel. IV. 120, 126; Precis, etc. 15.
Digitized by LjOOQIC
INDEMNITY FOR SLAVES. 357
plenipotentiaries at Ghent, the United States maintained that
it was impossible for the British plenipotentiaries to have read
the article as d^a^vn before and after the transposition with-
out perceiving that the effect was to mark a clear and une-
quivocal distinction between public and private property, and
that if they had asked why the words should be transposed,
and why the restoration of public, but not of private, property
should be limited to such as was originally captured in the
place and remained there at the place, the reply would have
been: "Because public property was of course necessarily
taken with the place and might be disposed of at the pleasure
of the captor. But imvate property was not and could not be
lawfully taken with the place. With the exception of mari-
time captures, private property in captured places is by the
usages of civilized nations respected. None could lawfully be
taken; and the stipulation was that none should be carried
away. The very specification of slaves was such a disclosure
of the intention .of the American plenipotentiaries in this pro-
vision as took away from the British all reasonable claim to
the right of alleging that they considered the variation in the
wording of the article as merely verbal."
The British Government in the end modified
^'^ed^p^tioii *^^ position assumed by Captain Lavelle, and
sustained by Admiral Gockburn and Lord
Bathurst, that the obligation to restore slaves was limited to
such as were not only in the places directed to be restored at
the date of the exchange of the ratifications, but were also
originally captured there. In a note to Mr. Adams of April
10, 1816, Lord Oastlereagh declared that Hia Majesty's gov-
ernment had never resisted " the claim of the United States
to indemnification for slaves or private property belonging
to their citizens, which can be proved to have been in places
directed to be restored by the treaty of Ghent, at the date of
the exchange of the ratifications, and to have been afterwards
removed." But he at the same time decLired that he could not
consider '* any property which had been, previous to the rati-
fication of the treaty, removed on shipboard," as properly
forming a subject for a claim of restoration or indemnification.
In this conflict of opinion the United States
^^ offered to refer the question at issue to the
decision of some friendly power.* The British
Government was disposed to accept this proposition, with the
»Am. state Papers, For. Rel. IV. 126.
Digitized by LjOOQIC
358 INTERNATIONAL ARBITRATIONS.
modificatiou that the question should first be submitted to two
commissioners, according to the method adopted in the various
arbitral clauses in the Treaty of Ghent. For a time the sub-
ject remained in suspense. But in 1818, when Messrs. Galla-
tin and Rush undertook to adjust with Lord Castlereagh the
several points of differences between the two countries, they
included in their plan the controversy concerning the restora-
tion of '* slaves or other private property."^ In the course of
the subsequent negotiations Messrs. Gallatin and Hush offered
to submit the subject to commissioners.* The British i)leni-
I>otentiaries, Messrs. Robinson and Goulburn, proposed as a
substitute an article to refer it to a friendly sovereign. As
this was the mode originally suggested by the United States
the American plenipotentiaries accepted it, and proposed that
the Emperor of Russia be designated in the article as arbi-
trator.
This proposal was rejected on the ground that if the Em-
peror should be designated and should refuse to act the agree
ment would become null, and that it would be inexpedient to
include in the treaty a provision for such a contingency. The
selection of a sovereign was therefore left to be made by the
two governments at a future day.^
The article as finally agreed on forms Article
Agreem^t of ArW- y ^^ ^^^ convention concluded October 2(),
tration. ^
1818. After reciting the provisions of the
Treaty of Ghent, as to which the controversy had arisen, and
the fact that the United States claimed for their citizens, " the
restitution of, or full compensation for all slaves who at the
date of the exchange of the ratifications of the said treaty
were in any territory, places, or possessions whatsoever
directed by the said treaty to be restored to the United States,
but then still occupied by the British forces, whether siidi
slaves were at the date aforesaid on shore or on board any
British vessel lying in waters witliin the territory or jurisdic-
tion of the United States," the article provided that the differ-
ences which had arisen as to whether the United States were,
^« by the true intent and meaning of the aforesaid article of the
Treaty of Ghent, * * * entitled to the restitution of, or full
compensation for all or any slaves as above described," should
^ Am. state Papers, For. Rel. IV. 379.
2 Am. State Papers, For. Rel. IV. 385.
3Am. State Papers, For. Rel. IV. 381.
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INDEMNITY FOR SLAVES. 359
be referred " to some friendly sovereign or State to be named for
that purpose,'' whose decision should be " final and conclusive
on all the matters referred." ^
Under this provision the Emperor of Bussia
Award. was selected as arbitrator.* His consent to
act in that capacity having been obtained, the
subject was sul)ujitted to him and argued by means of memo-
rials presented by Mr. Henry Middletou and Sir Charles Bagot,
the American and British plenipotentiaries, respectively, at
St. Petersburg, through Count Nesselrode, the imx>erial min-
ister for foreign affairs. On the 22d of April 1822 the Emperor
communicated to tlie plenipotentiaries, through Count Nessel-
rode, his award, which was in the following terms :^
^"^ Count NcHHclroile to Mr, Middleton.
'* [Translation. J
" The undersigned. Secretary of State, directing the Imperial
Administration of Foreign Affairs, has the honor to communi-
cate to Mr. ]yiiddleton. Envoy Extraordinary and Minister
Plenipotentiary of the llnited States of America, the opinion
which the Enijieror, his master, has thought it his duty to
express upon the subject of the differences which have arisen
between the United States and Great Britain, relative to the
interpretation of the first article of the treaty of Ghent.
"Mr. Middletou is requested to consider this opinion as the
award required of the Emperor by the two Powers.
" He will doubtless recollect that he, as well as the Plenipo-
tentiary of His Britannic Majesty, in all his memorials, has
principally insisted on the grammatical sense of the first article
of the treaty of Ghent, and that, even in his note of the 4th
(10th) November, 1821, he has formally declared that it was on
the signification of the irortts in the text of the article as it now
is that the decision of His Imperial Majesty should be founde<l.
"The same declaration being made in the note of the British
Plenipotentiary dated 8th (20th) October, 1821, the Emperor
htwi only to conform to the wishes expressed by the two parties,
by devoting all his attention to the examination of the gram-
matical question.
" The above-mentioned opinion will show the manner in which
His Imperial Majesty judges of this question ; and in order that
the Cabinet of Washington may also know the motives upon
which the Emperor's judgment is founded, the undersigned has
» Am. State Papers, For. Kel. IV. 407.
2 Am. State Papers, For. Kel. IV. 645.
3 Am. State Papers, For. Rel. V. 220.
Digitized by LjOOQIC
360 INTERNATIONAL ARBITRATIONS.
hereto subjoined an extract of some observations upon the
literal sense of the first article of the Treaty of Ghent.
"In this respect the Emperor has confined himself to fol-
lowing the rules found in the words employed in drawing up the
act, by which the two Powers have required his arbitration,
and defined the object of their difference.
" His Imperial Majesty has thought it his duty, exclusively,
to obey the authority of these rules, and his opinion could not
but be the rigorous and necessary consequence thereof.
" The undersigned eagerly embraces this occasion to renew
to Mr. Middleton the assurances of his most distinguished con-
sideration.
"NESSELRODE.
" St. Petersburg, 22d April, 1822."
"his impkuial majk8ty*b award.
" [Translation.]
" Invited by the United States of America and by Great
Britain to give an opinion, as Arbitrator, in the differences
which have arisen between these two Powers, on the subject of
the interpretation of the first article of the treaty which they
concluded at Ghent, on the 24th December, 1814, the Emperor
has taken cognizance of all the acts, memorials, and notes in
which the respective Plenipotentiaries have set forth to his
administration of foreign aff'airs the arguments upon which
each of the litigant parties depends in support of the interpre-
tation given by it to the said ai tide.
*^After having maturely wei|^hed the obscivations exhibited
on both sides:
"Considering that the American Plenipotentiary and the
Plenipotentiary of Britain luive desired that the discussion
should be closed;
"Considering that the former, in his note of the 4th (ICth)
November, 1821, and the latter, in his note of the 8th (20th)
October, of the same year, have declared that it is npon the
construction of the text of the article as it stands, that the Arbi-
trator's decision should be founded, and that both have ap-
pealed, only as a subsidiary means, to the general principles of
the law of nations and of maritime law;
" The Emperor is of Oijinion * that the question can only be
decided according to the literal and grammatical sense of the
first article of the Treaty of Ghent.'
"As to the literal and grammatical sense of the first article
of the Treaty of Ghent:
" Considering that the stipulation upon the signification of
which doubts have arisen, is expressed as follows:
"*A11 territory, i)laces, and possessions whatsoever, taken
by either party from the other during the war, or which may
Digitized by LjOOQIC
INDEMNITY FOR SLAVES. 361
be taken after the signing of this treaty, excepting only the
islands hereinafter mentioned, shall be restored without delay,
and without causing any destruction or carrying away any of
the artillery or other public property originally captured in the
said forts or places^ and which shall remain therein upon the
exchange of the ratifications of this treaty^ or any slaves, or other
private property; and all archives, records, deeds, and papers,
either of a public nature, or belonging to private persons, which,
in the course of the war, may have fallen into the hands of the
officers of either party, shall be, as far as may be practicable,
forthwith restored and delivered to the proper authorities and
persons to whom they respectively belong,'
<' Considering that, in this stipulation, the words originally
captured^ and tchich shall remain therein tipon the exchange of
ratifications, form an incidental phrase, which can have respect,
grammatically^ only to the substantives or subjects which
precede;
" That the first article of the Ti^eaty of Ghent thus prohibits
the contracting parties from carrying away from the places of
which it stipulates the restitution, only the public property
which might have been originally captured ther-e, and tvhich should
remain therein upon the exchange of the ratifications^ but that it
I)rohibits the carrying away from these same places any j^rivate
property whatever;
" That, on the other hand, these two prohibitions are solely
applicable to the places of Avhich the article stii)ulates the
restitution ;
** The Emperor is of opinion :
" *That the United States of America are entitled to a just
indemnification, from Great Britain, for all private property
carried away by the British forces; and as the question regards
slaves more especially, for all such slaves as were carried away
by the British forces, from the places and territories of which
the restitution was stipulated by the treaty, in quitting the
said places and territories;
'* * That the United States are entitled to consider, as having
been so carried away, all such slaves as may have been trans-
ported from the above-mentioned territories on board of thQ
British vessels within the Avaters of said territories, and who,
for this reason, have not been restored;
" * But that, if there should be any American slaves who
were carried away from the territories of which the first article
of the Treaty of (ihent has not stipulated the restitution to the
United States, the United States are not to claim an indemni-
fication for the said slaves.' "
" The Emperor declares, besides, that he is ready to exercise
the office of mediator, which has been conferred on him before-
hand by the two states, in the negotiations which must ensue
between them in conseciuence of the award which they have
demanded.
" Done at St. Petersburg 22d April, 1822."
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362 INTERNATIONAL ARBITRATIONS.
'' Count XenHelrode to Mr Muldleton,
"[Translation.]
" The uiidorsi^Tied, Secretary of State, directing the Impe-
rial Adiiunistratioii of Foreign Afl'airs, lias, without delay, laid
l)efore the Emperor, his master, the explanations into which
the Ambassador of His Britannic Majesty has entered with
the Imi)erial Ministry, in conscijuence of the preceding conli-
dential oommunication which was made to Mr. Middleton, a8
well as to Sir Charles Bagot, of the opinion expressed by the
Emperor upon the true sense of the Ist article of the Treaty of
Ghent.
" Sir Charles Bagot understands that, in Tirtue of the deci-
sion of His Imperial Marjesty, 'His Britannic Majesty is not
bound to indemnify the United States for any slaves who,
coming from places which have never been occupied by hia
troops, voluntarily joined the British forces, either in conse-
quence of the encouragement which His Majesty's officers ha*!
offered them, or to free themselves from the power of their
master — these slaves not having been carried away from places
or territories captured by His Jiritannic Majesty during the
war, and, conseciuently, not having been carried away from
plac^es of which the article stipulates the restitution,'
^^ In answer to this observation, the undersigned is charged
by His Imperial Majesty to communicate what follows to the
Minister of the United States of America:
" The Emperor having, by the mutual consent of the two
Plenipotentiaries, given an opinion founded solely upon the
sense which results yrow the text of the article in dispute, does
not think himself called upon to decide here any question rel-
ative to what the laws of war i)ermit or forbid to the belliger-
ents; but, jilways faithful to the grammatical interpretation of
the 1st article of the Treaty of Ghent, His Imi)erial Majjesty
de(*lares, a second time, that it appears to him according to
this inter] )retation :
" *That, in (juitting the places and territories of which the
Treaty of Ghent stijmlates the restitution to the United States,
His Britannic Majesty's forces had no right to carry away
from these same places and territories, absolutely, any slave,
by whatever means he had fallen or come into their x)ower.
"^JUitthat if, during the war, American slaves had been
carried away by the English forces, from other places than
those of which the lYeaty of Ghent stipulates the restitution,
upon the territory, or on board British vessels, Great Britain
should not be bound to indemnify the United States for the
loss of these slaves, by whatever means they might have fallen
or come into the power of her officers.'
"Although convinced, by the previous explanations above
mentioned, that such is also the sense which Sir Charles Bagot
attaches to his observation, the undersigned has nevertheless
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INDEMNITY FOR SLAVES. 363
received from I lis Imi)erial Majesty orders to address the pres-
ent note to the respective Plenipotentiaries, which will prove
to them, that, in order the better to justify the confidence of
the two Governments, the Emi)eror has been unwilling that
the slightest doubt should arise regarding the consequences
of his opinion.
"The undersigned eagerly embraces this occasion of repeat-
ing to Mr. Middleton the assurance of his most distinguished
cx)usideration.
"NESSELKODE.
" St. Petersburg, 22d April, 1822."
By this award it appears that the i)oint of difference was
<lecided in favor of the United States. The Emperor held that
the limitations as to the restitution of public property bore no
relation to private property. The treaty, he said, prohibited
the carrying away of any private property whatever from the
places and territories of which tlie restitution was Btipulate<l
by the treaty 5 that the United States were entitled to consider
as having been so carried away all slaves which had been
transi)orted from those territories on board of British vessels
within the waters of such territories, and who, for that reason,
had not been restored, but not slaves which were carried away
from territories of which the Treaty of Ghent did not stipulate
the restitution. Besides rendering a decision on this point,
the Emperor delared that he was ready to exercise the office
of mediator in the negotiations which must ensue between the
United States and Great Britain in consequence of the award.
2. MIXED COMMISSIONS UNDER CONVENTION OF JUNE 30
(JULY 12), 1822.
The oiler of the Emperor to act as mediator was accepted by
both the parties to the arbitration, and on June 30 (July 12),
1822, a convention was concluded between them under his
mediation.^
By this convention the execution of the award
^^^^^Oaim "* "* ^^® ^^ ^ accomplished by two processes, the
first of which was the ascertainment of an
average value to be allowed as compensation for each slave
for which indemnification might be due; the second, the exami-
1 Am. state Papers, For. Rel. V. 214.
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364 INTERNATIONAL ARBITRATIONS.
nation of individual claims, in order to determine the number
of slaves and the amount of other property for which com-
pensation should be paid.
For these puri)oses the convention provided
Two BoardB. that each government shouldappointone"com-
mission er '' and one " arbitrator ; " that the two
commissioners and two arbitrators so appointed should "meet
and hold their sittings as a board in the city of Washington;"
that they should have power to appoint a secretary ; that before
proceeding to the other business of the commission they
should respectively take an oath or affirmation diligently, im-
partially, and carefully to examine, and to the best of their
judgment, according to justice and equity, to decide all matters
submitted to them under the convention. It was further pro-
vided that any vacancy occurring in the board should be filled
in the same manner as the original appointment. But in
reality the commissioners and arbitrators whose appointment
was thus authorized constituted two boards, for the perform-
ance, respectively, of the successive processes of ascertaining
the average value of slaves and determining the validity of
individual claims.
By Article II. of the convention it was pro-
Board Under Article ^^^^^^ ^j^.^^ j^ ^^ ^^^^ ^^^^ meeting of the board
consisting of the two commissioners and two
arbitrators the governments of the United States and Great
Britain should not have agreed on "an average value, to be
allowed as compensation for each slave for whom indemnifica-
tion may be due," in that case the "commissioners and arbitra-
tors" should "conjointly i^roceed to examine the testimony
which shall be produced under the authority of the President
of the United States, together with such other competent testi-
mony as they may see cause to require or allow, going to prove
the true value of slaves at the period of the exchange of the
ratifications of the Treaty of Ghent," and upon the evidence
so obtained "agree upon Jind fix the average value," But in
case "the majority of the board of commissioners and arbitra-
tors should not be able to agree respecting such average value,''
it was stipulated that a statement of the evidence produced,
and of the proceedings of the board upon it, should be com-
municated to the diplomatic representative of Russia in the
United States, who should render thereon a final decision.
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Board Under Article
ra.
INDEMNITY FOR SLAVES. 365
By Article III. of the convention it was pro-
vided that after the average value of slaves
should have been fixed the two commissioners
should constitute a board for the examination of individual
claims. They were however restricted to the consideration
of such clainiH as should be contained in a
* ^^^aiml^^" ""^ " definitive list," to be furnished by the Sec-
retary of State of the United States, '*of the
slaves and other private property for which the citizens of the
United States claim indemnification." Claims " not contained
in " this list the commission was " not to take cognizance of,
nor receive;" nor was the British Government to be required
to make compensation for them. On the other hand, His
Britannic Majesty engaged '^ to cause to be produced before
the commission, as material towards ascertaining fj^cts, all the
evidence of which His Majesty's Government may be in pos-
session, by returns from His Majesty's officers or otherwise, of
the number of slaves carried away.". The "evidence so pro-
duced, or its <lefectiveness," was not however to be allowed
to *' go in bar of any claim or claims which shall be otherwise
satisfactorily authenticated." By Article IV. of the conven-
tion the two commissioners were required to examine " all the
claims submitted, thro' the above-mentioned list, by the owners
of slaves or other property, or by their lawful attorneys or
representatives," and to determine them according to the
merits, under the rule expressed in their oaths, having regard
to the imperial award and the explanations accompanying it.
"And, in considering such clainis," the article further provided,
" the Commissioners are empowered and required to examine,
on oath or affirmation, all such persons as shall come before
them touching the real number of the slaves, or value of other
projierty, for which indemnification is claimed-, and also to
receive in evidence, according as they may think consistent
with equity and justice, written depositions or papers, such
dex>ositions or papers being duly authenticated, either accord-
ing to existing legal forms or in such other manner as the said
commissioners shall see cause to require or allow."
" In the event of the two commissioners not agreeing in any
particular case under examination, or of their disagreement
upon any question which may result from the stipulations of
this convention," Article V. provided that they should draw
Digitized by LjOOQIC
366 INTERNATIONAL AEBITKATIONS.
by lot the name of one of the two arbitrators, who, after having
^iven due consideration to the contested matter, should con-
sult with the commissioners, and that a final decision should
be given by the majority. It was stipulated that the arbi-
trator so acting with the commissioners should be vested
with the same powers and be bound by the same rules as a
commissioner, " and be deemed for that case a commissioner."
\^y Article VI. it was agreed that " the decision of the two
commissioners, or of the majority of the board, as constituted
by the preceding article," should "in all cases be final and
conclusive, whether as to number, the value, or the ownership
of the slaves or other i)roperty " for which indemnification was
to be made. And Ilis Britannic Majesty engaged " to cause
the sum awarded to each and every owner in lieu of his slave or
slaves or other property to be paid in specie, without deduc-
tion, at such time or times and at such place or places as shall
be awarded by the said commissioners, and on condition of
such releases or assignments to be given sis they shall direct:
Provided, that no such payment shall be fixed to take place
sooner than twelve months from the day of the exchange of the
ratifications of this convention."
The board of commissioners and arbitrators
^^^d^Artid n'^ ^^ ascertain the average value of the slaves
met in Washington on the 25th of August
1823. The commissioner on tlie part of the United States was
Langdon Chevcs;' tlie arbitrator, Henry Seawell.* On the
part of (Ireat Britain the commissioner was George Ja<*kson;
the arbitrator, John McTavivSh.-^
After each of the members had taken the
^"^offiMw ""^^^^ ^^'^^^^ prescribed by the convention the boanl
named James Baker as secretary, and also
appointed a clerk at a salary of $l,r>0() per annum. For the
1 Mr. Chi;vc9 was boni in South Carolina in 1776, in 1797 ho was admitUnl
to tho bar, in 1810 elected to Congress, aiul in 1814 chosen Speaker of the
House. In 1816 he was appointed a jndi^o of the snpreme court of hiH
native State. Subsequently he became president of the llnit-cd Stat4j.s
Bank, a position which ho resigned in 1822. When appoint-ed a comnii»-
sioner nnder the convention of 1822 ho was residing in Philadelphia, his
commission, which was isMucd February 12, 1823, describing him as a citi-
zen of Pennsylvania. He afterward returned to i^oiith Carolina, where
he died in 1857.
'*Mr. Scawell is described in his commission, which is dated Februarj"
12, 1823, as a citizen of North Carolina.
•'The connnisaion of Messrs. .Jackson and McTavish, which was issued
to them jointly, bears date April 15, 1823.
Digitized by LjOOQIC
INDEMNITY FOR SLAVES. 367
latter post Mr. Seawell nominated diaries Marby, of Nortji
Carolina, who was duly chosen.^
George Hay was appointed by the IMesi-
^*^«x^ ^ ^^©"t early in the sessions of the board to
Stat6B.
attend as agent of the United States, with a
view to facilitate such comiuunications between the board an<l
the Department of State as might be found expedient, and to
give the claims for indemnity such 8ui)port as from the neces-
sary absence of most of the individual claimants might be
necessary.*
A rule was adopted to the effect that the board
Procedure. would rcc^eive Jill communications through its
secretary and in writing only, while acting
under the second article of the convention, and that applicants
would be informed through the same channel from time to time
of its decisions. It was also decided that no public sessions
should be held under the second article, and that discussions:
in the board shoukl be carried on by conference and protoi'ol,
such documents to be inserted in the latt^er as either party
might deem necessary for the puri>ose of recording its senti-
ments in detail.
On the 26th of Angnst the board adjourned
Evideaee and De- ^.j^ ^j^^ .^^^^^ ^^^ ^,^^ ^^^^^ October, and when it
liberations. , . ,. , ^.
reconvened it directed! tlie secretary to inform
the Secretary of State that it was prepared to re(;eive what
ever cxmimunication he might deem it ijropcr to make, under
the authority of the President of the United States. On tlie
*J2d of October the Secretary of State, John Qnincy Adams,
transmitted to the board tlie papers in the possession of his
department, containing the testimony produced under the
authority of the President, going to prove the true value of
slaves at the period of the exchange of the ratifications of the
Treaty of Ghent; and on January 16, 18'J4, he communicated
a rei>ort in relation to the average value of slavi^s in Louisiana.
'Tlio board aubseqiiently appointed (jeorj^e Bedo and Lincoln Cbambor-
laiu aH inessongers, and Tobiiks Black as doorkeeper. By an act of* Marcb
3, 1823, ('ongress appropriated $20,000 to carry tbo convention into etVect.
(3 Stats, at L. 763.) April 12, 1821, it appropriated $2,500 in addition to
tbe nnexpended balance of the prior appropriation. (4 Id. 16.) . Appropria-
tions were subsequently made as follows: $12,000 February 25, 1825 (Id.
91); $10,387 March U, 1826 (Id. 146); $12,000 March 2, 1827 (Id. 214.)
«Mr. Adams, Sec. of State, to the Board, October 22, 1823. (MSS. Dopt.
of State.)
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368 INTERNATIONAL ARBITRATIONS.
Ou the 28th of January the board, having completed the
examination of this documentary evidence, directed its secre-
tary to inform the Secretary of State of the fact, and to inquire
whether it was intended to submit further testimony to the
board previously to its proceeding to deliberate on the ques-
tion of average value. On the 3d of February Mr. Adams
transmitted further testimony as to value, received since the
22d of October, and on the 6th of February certain documents
relating to the average value of slaves in South Carolina. On
the 12th of February the board, having completed the Exami-
nation of all the documentary evidence then submitted, ad-
journed till the 19th of that month, directing the secretary to
express to the Secretary of State the hope that it would com-
port with his convenience in the mean time either to furnish
the board with such final evidence as might enable it to pro-
ceed to deliberate on the question before it, or else to i>oint out
a definite time when such evidence might be expected, in order
that the necessity of frequent temporary adjournments might
be prevented. On the 20th of February the board received a
communication from Mr. Adams, saying that he expected to
be able to furnish by the 4th of March such evidence as would
render unnecessary any further delay in proceeding to a
decision. On the 17th of March the secretary of the board
again addressed the Secretary of State, referring to the fact
that the board had not received the final communication in
(luestion and that it was its intention to close all evidence and
proceed to the discussion of the question of average valu^ on
the 24th of March unless it should in the mean time receive
additional evidence or an intimation of a wish on the part of
the government that a further delay should be allowed to
intervene. In reply the board received a communication from
the Department of State to the effect that it was not intended
to submit any testimony which would delay the propose<l dis-
cussion beyond the 23d of March. Accordingly the British
members on the 25th of March proposed that, in consequence
of this communication, no further testimony relating to the
average value of slaves should be received from the Depart
ment of State unless the board should itself require it. The
board adjourned without deciding on this proposition, but on
the following day the American members offered to assent to
it, on condition that the board proceed without delay to the
determination of the (luestion of average value on the evidence
Digitized by LjOOQIC
INDEMNITY FOR SLAVES. 369
before it. The British meinbers declined to assent to this con-
dition and renewed their proposition of the preceding day;
but as the American members objected to it, it was not
agreed to.
On the 31st of March the American com-
ti^M^fBoard ^ luissioner and arbitrator submitted a paper in
which they declared that they would not
delay the deliberations of the board for the introduction of
further testimony on the part of their government unless there
should be occasion to reply to evidence that might be intro-
duced on the part of Great Britain; but that if the British
Government did not desire to introduce any they were ready
finally to close the testimony and to iiroceed judicially to con-
sider and decide the question of average value. When this
paper was submitted a discussion arose as to the character of
the board's functions, whether they were diplomatic or judicial.
On the following day, April 1, the British members presented
a declaration to the eflect that the refusal of the American
members to attempt to proceed by any other mode than that
of a directly judicial examination of evidence, imposed on them
the obligation of obtaining further testimony. The American
members laid before the board a counter declaration, stating
that they did not consider their functions as diplomatic, but as
in their nature judicial and enforced by the obligation of an
oath; yet that they did not consider their functions so directly
judicial as not to allow the exercise of such discretion as would
enable them to accept any just and equitable proposition which
the British commissioner and arbitrator might at any time be
pleased to submit, or which might grow out of their free con-
ferences; and they exi)res8ed their readiness to consider any
proposition which the British commissioner and arbitrator
might offer, and (always regarding the evidence adduced or to
be adduced as the basis of their proceedings and as the ground
of their authority) to agree to such proi)Osition if it should
appear to bo just and equitable.
After further conferences, at which no deci-
Agreemen as ^^^^ ^^^ reached, the British commissioner and
Average Valae. ^
arbitrator on the 29th of June laid before the
board a mass of evidence relating to the value of slaves,
embracing the period from May 1, 1814, to December 31, 1815.
It covered Delaware, Maryland, the District of Columbia, Vir-
ginia^ North Carolina, South Carolina, Georgia, Mississippi,
5627 24
Digitized by LjOOQIC
370 INTERNATIONAL ARBITRATIONS.
and Louisiana. At the same time the British commissioner
and arbitrator offered to close all testimony and to proceed to
discnsA and settle the question at issue. On the 13th of July
both sides agreed to treat the evidence as closed. The British
commissioner and arbitrator then suggested the expediency, as
a preliminary measure, of coming to some general understand-
ing as to the basis on which it might be desirable to proceed,
namely, whether the average value of the slaves should be deter-
mined by taking into consideration documents embracing all
the slaveholding States, or those States only from which bona
fide claims were preferred. The American commissioner and
arbitrator replied that, strictly speaking, there were no claims
before the board, and that they thought the correct course was
to take the testimony as a whole and consider it all together.
On the 11th of September the board unanimously agreed to
allow as compensation for each slave for whom indemnity
might be obtained under the convention, as follows: For
slaves taken from Louisiana, $580; from Alabama, Georgia,
and South Carolina, $390; from Virginia, Maryland, and all
other States, $280. Thus the functions of the board under
Article II. of the convention were completely discharged.
On September 13, 1824, the two commission-
Meeting of Board ^ ^^ Cheves and Mr. Jackson, notified the
Under Article m. ' '
Secretary ol State that, the average value of
slaves having been unanimously fixed under Article II. on the
11th instant, they had met under the new constitution of the
board, as prescribed by Article III. of the convention, and
were ready to receive and proceed to the examination of the
^< definitive list" whenever it should be submitted to them.
On the 10th of December the commissioners
^Sle^A^ received from the Secretary of State, Mr.
Adams, with a letter dated the 8th of that
month, the definitive list of the slaves and other private prop-
erty for which the citizens of the United States claimed
indemnification.* While the question of the construction of
Article I. of the Treaty of Ghent was pending before the
Emperor of Eussia, Mr. Adams, as Secretary of State, sent to
the governors of New Jersey, Delaware, Maryland, Virginia,
North Carolina, South Carolina, Georgia, Tennessee, Kentucky,
1 Am. state Papers, For. Rel. V. 800.
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INDEMNITY FOE SLAVES. 371
Mississippi) Louisiana, Alabama, and Missouri the following
circular:
<' Department of State,
" Washington, 22 March, 1821.
"Sib : — ^Tho question of the construction of that part of the
first article of the Treaty of Ghent, which stipulated that slaves
should not be carried away from the United States, by British
officers after the conclusion of the Peace, having been sub-
mitted by the American and British Governments to the
decision of the Bmperor of Eussia, the British Secretary of
State for Foreign Affairs has demanded that, in the event of
a decision in favour of the Construction insisted upon by the
United States, the full extent of the demand upon Great
Britain for restitution or indemnity for slaves carried away
should be made known as speedily as possible. I am directed
by the President to suggest that notice should be given to the
sufferers, to transmit without delay to this Department, authen-
ticated proof of the number of slaves carried away, and of their
value by the current prices at which they might have been
sold at the time when the loss was sustained, specifying the
name, age, sex, and value of ea€h individual slave lost.
"1 have the honor to be with great respect. Sir,
"Your humble and obedt. Servt."
On the 13th of December Mr. Adams trans-
Omitted ciaiau. mitted to the commissioners certain documents
pertaining to the claims submitted to their
consideration, and pointed out that some of the documents
related to cases which were to be added to the list transmitted
on the 8th of December, but which had been by inevitable
accident omitted at that time. The American commissioner
expressed the opinion that the cases which had been so omit-
ted from the definitive list should bo added to it. The British
commissioner, conceiving that the terms of Article III. of the
convention left no discretion in the matter, dissented from
that opinion. By a similar division of opinion several other
applications to add claims not contained in the definitive list
failed of approval.
On the 14th of December the commissioners
BniM of Procedure, resolved that they would, on each morning of
their meeting, sit with open doors for the pur-
X)ose of receiving proofs, motions, and other communications
from the claimants and their agents; that all motions should
be in writing, and if supported by arguments that such argu-
ments should also be in writing; that on a day thereafter to
Digitized by LjOOQIC
372 INTERNATIONAL ARBITRATIONS.
be appointed and announced the definitive list would be called
over in tbe presence of tbe claimants and their agents for the
purpose of ascertaining what persons were ready to submit
tbeir cases for examination and decision; and that the claim-
ants respectively, or tbeir agents upon producing a special
authority to that effect from tbeir principals, should be permit-
ted from time to time to take out of the office of the commis-
sioners their original documents and papers for the purposes
of investigation and examination, giving to the secretary an
engagement for their safe and punctual return within oue
month. This last resolution was subsequently modified by
striking out tbe words "for the purposes of investigation and
examination" and "one month," and adding at the end the
words "reasonable time, or whenever the board may specially
direct."
In regard to the authentication of evidence
^^ ' the commissioners diff'ered, though they agreed
on a rule which, while not expressly excluding
anything, prescribed a mode of authentication the observance
of which entitled depositions to admission. To this rule, how-
ever, Mr. Oheves assented with reluctance. It was at first
decided on motion of Mr. Neale, an agent for numerous claim-
ants, that depositions should be deemed duly authenticated
which should be taken before a notary public, judge, or justice
of the peace, provided they were accompanied either with a
certificate of the clerk of the county or district court within
which such officer resided, under the seal of the court and
signature of the clerk, certifying the signature of such notary
public, judge, or justice of the peace, and that he was bona
fide the character he represented himself to be, or by a certifi-
cate to the same efiect under the signature and seal of a con-
sul, vice-consul, or other British ftinctionary. It was agreed
that all other depositions should be decided upon, on the spe-
cial circumstances of each, whenever they should come under
consideration. Mr. Jackson however subsequently insisted,
either as an interpretation or as a modification of the rule, that
when the officer who took the deposition had no official seal,
as is the case with justices of the peace, the certifying official
should certify that the signature of such officer was genuine.
Mr. Cheves opposed this requirement on the ground that as it
necessitated on the part of the certifying official personal
knowledge of the signature or handwriting of the justice, it
Digitized by VjOOQ IC
INDEMNITY FOR SLAVES. 373
would in many cases be imi)08sible to comply with it. But he
at length concurred in the modification, holding that it did not
bind him to exclude depositions otherwise authenticated.
It was decided that any claimant might refer to and use as
evidence in his case, so far as it might be available, any
written documents or matter of proof which might have been
filed by any other claimant in the same or any other case.
The commissioners also determined, in a
Fortiier Proof, particular case, to afford an opportunity for
further i>roof on certain points. Mr. Cheves
expressed the opinion that further proof ought to be admitted
in all cases where it would promote justice without danger of
unreasonable delay. Mr. Jackson, while acceding to the re-
quest in the particular case, said he must protest against it on
general principles, in the hope that similar applications might
be precluded in the future.
On the 6th of January 1825 a question arose
Powen of Attorney, as to whether it was necessary for attorneys
for claimants to have a power of attorney.
The commissioners answered that the convention required the
claims to be submitted through the definitive list "by the
owners of slaves or other property, or by their lawful attorneys
or representatives," and that they had been unable to agree on
any means by which the requirement of a power of attorney
might be dispensed with.
Though the commissioners succeeded in
nuMgi^moiits 0 agreeing on some points, they soon began to
fall into difficulties which precluded any ad-
vancement of the purposes for which they were appointed.
Their first pronouced disagreement occurred
Omitted ciaiins. early in 1825 in regard to placing certain omitted
claims on the definitive list under peculiar cir-
cumstances. The papers in which the claims in question were
set forth accompanied the definitive list, but through the insid-
vert^nce or misunderstanding of the person who prepared it
were not entered upon it. As the commissioners were unable
to agree on the question of entering these claims, Mr. Cheves
moved that they proceed by lot to name one of the two arbitra-
tors, in order that the difference might be decided in conform-
ity with the provisions of Article V. of the convention. Mr.
Jackson declined to assent to this on the ground that under
that article the commissioners were authorized to call in an
Digitized by LjOOQIC
374 INTERNATIONAL ARBITRATIONS.
arbitrator only in the event of their '^not agreeing in any par-
ticular case under examiuatiou, or of their disagreement upon
any question which may result from the stipulations of this
convention," and that the subject of the present disagreement
neither arose in a particular case under examination nor re-
sulted from the stipulations of the convention. The demand
was, he said, not only not based on any stipulation of the con-
vention, but was opi)osed to its express provisions.
A similar disagreement occurred in regard
Br ituh Evidence, to evidence in the possession of the British
Government. As has been seen. Article III.
of the convention provided: "And His Britannic Majesty
hereby engages to cause to be produced before the commis-
sion, as material towards ascertaining facts, all the evidence
of which His Majesty's Government may be in i>osse8sion, by
returns from His Majesty's officers or otherwise, of the num-
ber of slaves carried away."
Early in the proceedings of the commission one of the attor-
neys for claimants asked that such evidence be produced.
The commission answered that the evidence in question was
not in its possession or power. Subsequently the British com-
missioner received from his government a mass of papers, con-
sisting of extracts from the log books of the vessels which
had carried slaves away, and other documentary evidence,
but not being authorized by his government to present the
papers to the commission in such manner that the claimants
might have access to them, he refused to deliver them to the
commission, except on condition that claimants should be de-
nied inspection of them until the testimony in their respective
cases should be closed. Mr. Cheves, on the other hand, main-
tained that one of the principal objects of the stipulation in
question was to supply all the evidence in the possession of
the British Government respecting the facts which were to be
proved, and which, as in the case of carrying away slaves,
it might be difficult to prove otherwise; and that the claim-
ants were clearly entitled, in making up their cases, to the
inspection of such evidence.
Another disagreement occurred in regard
^*^ter«It*' ^ ^ ^^® allowance of interest on claims. The
formal discussion on this subject began Feb-
ruary 25^ 1825, when Mr. Gheves submitted an opinion on the
claim of John Gowper, of Georgia, embracing (1) slaves carried
Digitized by LjOOQIC
INDEMNITY FOft SLAVfiS. 375
away from: St. Simon's Island; (2) consequent loss of crops
from 1815 to 1824; (3) interest at 8 per cent, the legal rate in
Georgia, on those items. Mr. Oheves held that the first item
was established. The second item he rejected as on its face
inadmissible. As to interest on the value of the slaves carried
away, he held that reasonable damages for the withholdment
of a right were necessary to compensate the sufferer for the
injury so sustained, and that such dauiages were measured in
the present case by interest at the legal rate in the State of
Georgia, where the slaves were taken. ^' A just indemnifica-
tion," said Mr. Cheves, "is the reestablishment of the thing
taken away, with an equivalent for the use of it during the
period of detention." This was also the general rule adopted
by claims commissions. In this relation he referred to the
proceedings under the sixth and seventh articles of the Jay
Treaty of 1794.
On the 16th of March Mr. Jackson replied. Adverting to
the fact that the question was not what slaves were carried
away from the territories or waters of the United States by
His Majesty's forces during the war, but whether the slaves
claimed in each particular case were so carried away after
the exchange of the ratifications of the Treaty of Ghent, he
said that he considered the evidence on this point unsatis-
factory. But he wouid meet the American commissioner on
the question of damages on the grounds the latter had taken.
These Mr. Jackson classed as follows: (1) Principles of jus-
tice and equity; (2) the authority of precedent; and (3) a rea-
sonable and necessary construction of the convention. The
last ground Mr. Jackson discussed first. After quoting the
language of the fifth article of the convention of October 20,
20, 1818, he said that on this article was founded the conven-
tion of St. Petersburg of 1822; and he contended that under
these conventions the value of the slaves was the compensation
to be made. This view was, he said, enforced by the provision
that the board should ascertain the average value of the
slaves. This being fixed, the only duty of the commissioners,
and their only power or authority, after procuring the list of
slaves provided for in the third article of the convention of St.
Petersburg, was to examine persons or receive depositions
touching the real number of slaves. If the convention in-
tended that the commissioners should allow damages as well
as the value of the slaves, it was inconceivable that the power
Digitized by LjOOQIC
376 INTERNATIONAL ARBITRATIONS.
should not have been given to the commissioners to ascertain
by evidence the amount of such damages; and if it was in-
tended that interest should be arbitrarily fixed upon as the
standard of damages it was equally inconceivable that the
convention should have been silent upon the subject.
Referring to precedents, Mr. Jackson adverted to a letter of
Mr. Jefferson, as Secretary of State, to Mr. Hammond, the
British minister, dated at Philadelphia May 29, 1792, in which
Mr. Jefferson, referring to claims growing out of impediments
to the recovery of debts under the treaty of peace of 1783,
argued that interest, not being part of the debt, was not allow-
able. Mr. Jackson admitted that under Article VI. of the
treaty of 1794 interest was allowed; but interest might, he said,
be considered ordinarily to attach to a debt as an incident, as
in cases under that Jirticle. The twenty- third article of the con-
vention between the United States and France of September
30, 1800, contained an express provision for interest. A similar
stipulation was contained in a subsequent treaty between the
same parties of April 30, 1803. On the strength of these stipu-
lations, Mr. Jackson said he was justified in contending that
whenever in a treaty the United Stated meant to stipulate for
interest they took care to include an express provision to that
effect. In regard to the proceedings of the commission under
the seventh article of the treaty of 1794, Mr. Jackson argued
that they could not be considered as a precedent, because that
article provided for full and adequate compensation not only
for losses but also for the damages sustained. Under these
stipulations, as he construed them, the value of the property
captured and condemned constituted the loss, and interest was
allowed as compensation for the damages sustained in conse-
quence of that loss.
Keferring to the grounds of justice and equity, Mr. Jackson
said that he could not treat the case, as the American commis-
sioners had done, as one between individuals. It did not
originate in any wrong conceded by Great Britain to have been
committed by her toward the United States, but simply in a
reference of a claim to the decision of the Emperor of liussia for
the purpose of cementing a good understanding. The slaves
came lawfully into the possession of His Majesty's forces,
flagrante hello. In such possession they were considered and
treated as free, and no use or profit was made of them. The
I)rotection promised them when they took refuge with the British
forces forbade their being delivered up.
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INDEMNITY FOR SLAVES. 377
Ou the 23d of March Mr. Cheves presented an answer to the
argument of the British commissioner, both on the question of
property in the slaves at the time of their taking away and on
the question of interest and damages.
Mr. Cheves offered to submit the question of interest to one
of the arbitrators, but Mr. Jackson declined to do so, on the
ground that interest was clearly excluded by the convention.
Yet another unyielding difference arose in
Dauphin iiiand. relation to Some of the Louisiana claims for
slaves carried away from Dauphin Island, in
Mobile Bay. This island was occupied by British forces during
the war, and was surrendered by them at its close; but Mr.
Jackson maintained that it was not, at the time of the exchange
of the ratifications of the Treaty of Ghent, lawfully a part of
the United States; that it was not an appendage of Louisiana,
but belonged to West Florida, which was not ceded to the
United States till 1819. This objection embraced perhaps the
greater part of the slaves alleged to have been carried away
from Louisiana. Mr. Cheves refused to discuss the right of the
United States to the island, but offered to refer the claims in
respect of which the question arose to one of the arbitrators.
This Mr. Jackson declined to do.
On April 27, 1825, the commissioners ad-
^^^*^^'^"^*' Journed to the 8th of the ensuing December,
partly for the purpose of affording an oppor-
tunity for the production of evidence. On the 10th of May, a
month after their adjournment, Mr. Clay, who had then become
Secretary of State, instructed Rufus King, the newly appointed
minister to England, to sound the British Government as to a
compromise of the claims by the payment of a gross sum of
money, and if this suggestion should not be favorably received
to " urge the British Government to infiise a better spirit into
their commissioner, and, especially, that they instruct him to
execute the fifth article of the convention according to its true
intent and meaning, by referring to the arbitrator all the ques-
tions on which he and Mr. Cheves have disagreed," and "all
other questions on which, from time to time, the commissioners,
during the future progress of the bofird, may, unfortunately,
happen to disagree." As to the basis of a compromise for a
lump sum, Mr. Clay said that the total number of slaves on the
definitive list was 3,(101. The entire value of all the property
for which indemnity was claimed, including interest, might be
Digitized by LjOOQIC
378 INTERNATIONAL ARBITRATIONS.
Stated at $2,693,120. If that sum could be obtained every
claimaut might be fully compensated. But, as so large a sum
could hardly be expected, Mr. Clay set forth his views as to the
deductions which would probably be made if the commission
should proceed to fulfill its duties. And first, as to slaves, he
said that upwards of 2,400 were carried away firom Maryland
and Virginia, and that of this number probably not more than
600 would be brought by the proof within the terms of the Treaty
of Ghent. Of the 1,201 left, after deducting 2,400 from the
whole number on the list, the greater part were taken from
Georgia and Louisiana, and all these were supposed to be com-
prehended in the provisions of the treaty. The slave account
might therefore, said Mr. Clay, be conjectured to stand thus:
500 from Maryland and Virginia, at $280 $140,000
250 from LouiBiaua, at $580 145,000
900 from Georgia, etc., at $390 351,000
Producing, without interest 63d, 000
Of the claims for personal property other than slaves the
estimated value was about 9500,000. But many of these claims
were, said Mr. Clay, clearly not within the terms of the Treaty
of Ghent. For example, there was a large item for tobacco
destroyed in 1814. It was believed that $250,000 was as large
an amount as would be obtained for all the property other than
slaves; and the total amount of all the private property of
every kind to be paid for might be assumed to be $886,000, ex-
clusive of interest. Ten years' interest, amounting to $531,600,
would bring the total up to $1,417,600. Mr. Clay however
observed that if the question of interest were submitted in each
case to the arbitrator, the amount might be less. The lot
would have to be cast in each case; and on the supposition that
the British arbitrator would be chosen as often as the Ameri-
can and that he would disallow the claim for interest, one-half
should be deducted from the preceding estimate, or $265,800.
Subtracting this from the aggregate above mentioned, it would
leave $1,151,800 as the highest sum which would probably be
awarded by the commission. This sum might therefore be
treated in the negotiation as a minimum. Mr. Clay observed
that in the estimates laid before Parliament for that year there
was an item of £250,000, to cover the awards of the commis-
sion. This was nearly the sum which the United States had
mentioned as a minimum.^ In the course of his instructions
1 Am. state Papers, For. Rel. VI. 344.
Digitized by LjOOQIC
INDEMNITY FOB SLAVES. 379
Mr. Olay clearly pointed out the vicious plan of the convention,
whereby the commissioners were required to cast lots for an
arbitrator in each case of difference; a plan likely to result in
confiised and contradictory decisions as well as in delay.^
The British Government did not receive Mr.
Brituh Reply. Clay's propositions with favor. On the con-
trary, Mr. Vaughan, the British envoy at
Washington, in a note to Mr. Clay of April 12, 1826, summed
up the result of the correspondence on the subject between
Messrs. King and Canning at London, by saying that His
Msyesty's government regretted to find themselves ^' under the
absolute impossibility of accepting the terms of compromise
off'ered by the envoy from the United States in London.'' Mr.
Vaughan furthermore declared that His Majesty's government
could not admit that the question of interest should be referred
to arbitration — that the demand for interest was unwarranted
by the convention, and was declared to be unfounded by the
law officers of the Crown.^ Mr. Clay, expressing surprise at
these declarations, pointed out that the question of interest
was not the only one which the British commissioner had reused
to refer, and that if his refusal to cooperate in the choice of an
arbitrator should be upheld it would virtually be making him
the final judge of every question of difiference that arose in the
joint commission.^ Mr. Vaughan in reply maintained that each
commissioner must judge for himself as to the course he would
take, and observed that while the British commissioner had
refused to refer certain questions, the American commissioner
had done the like in respect of the question as to the inspection
by claimants of the evidence in the i)os8ession of the British
Government.* Responding to this observation, Mr. Clay said
that the proposal of the British commissioner to refer the ques-
tion as to the inspection of the list of deported slaves was an
abstract proposal, there being at the time no case under exami-
nation to which it attached itself, and that at a subsequent
period of the proceedings the American commissioner ofiered
to refer that and every other question on which he and his col-
league might disagree to the arbitration prescribed by the
> Am. state Papers, For. Rel. VI. 339.
« Am. State Papers, For. Rel. VI. 746.
3»ir. Clay to Mr. Vaughan, April 15, 1826. (Am. State Papers, For. Rel.
VI. 746.)
*Am. state Papers, For. Rel. VI. 749.
Digitized by LjOOQIC
380 INTERNATIONAL ABBITRATIONS.
convention.^ There was also much discussion between Mr. Clay
and Mr. Yaughan of the subject of interest and of the sover-
eignty of Dauphin Island in 1815. On the question of interest,
Mr. Clay sought the opinion of Mr. Wirt, then Attorney-
(leneral, who advised that interest was a necessary part of the
indemnification awarded by the Emperor of Russia, and that
the refusal of the British commissioner to refer the point to one
of the arbitrators was not warranted by the convention.*
On the 8th of December 1825 the com-
Continued i^aipree- missioners, pursuant to their adjournment,
rioners ^"^'^'^ reconvened, but only to renew their disputes,
which often assumed the character of personal
controversy. By the refusal to refer questions to the arbi-
trators the provisions of the convention for the settlement of
differences between the commissioners were rendered wholly
nugatory. On one occasion Mr. Cheves proposed, aa Mr.
Jackson maintained that interest was excluded by the conven-
tion, to refer the simple question whether it was so excluded
to one of the arbitrators as a difference resulting from the
<' stipulations" of that instrument. This proposition also Mr.
Jackson declined.
On the 10th of May 1826 Albert Gallatin
**^ti ^^ *" ^^ commissioned as envoy extraordinary and
minister i)lenipot.entiary of the United States
to Great Britain. On the 21st of June Mr. Clay delivered to
him a copy of the journal of the commissioners, who had ad-
journed on the 10th of that month till the Cth of the following
December. It showed that they had since their last preceding
adjournment made not the "smallest advance" toward the
completion of the business before them. Mr. Clay instructed
Mr. Gallatin to consider the instructions addressed to Mr. King
on the subject as still in force and applicable to his mission;
but, if the British Government should still refuse either to com-
promise the claims or to instruct its commissioner to refer ques*
tions in dispute, to propose to submit the various points of
difference to the Emperor of Russia.^ Mr. Gallatin had his first
interview with Mr. Canning at the foreign office on the 1st of
August 1826, when Mr. Canning inquired whether he was not
authorized to settle the controversy as to the Treaty of Ghent
1 Am. State Papers, For. Rol. VI. 751.
2 1(1. VI. 050.
3 1(1. VI. 345.
Digitized by LjOOQIC
INDEMNITY FOB SLAVES. 381
by compromise. Mr. Gallatin replied that Le was, but that as
Mr. Ganning had simply rejected as inadmissible the proposal
made by Mr. King any overtures on the subject must come
from the British Government. Mr. Canning said that it ap-
peared to His Majesty's government that the sum demanded
by Mr. King was equal to the whole amount of the claims filed,
including interest.* Mr. Gallatin, however, adhered to his
determination not to discuss the question of amount till over-
tures on the subject had been made by Great Britain. He
discovered that while there was great reluctance to recede from
the ground already taken in support of Mr. Jackson there was
also a disposition to settle.'^ On the 13th of September Mr.
Gallatin reported that he had received private information
that the British Government was disposed to offer £250,000,
then equivalent to $1,188,000, a sum which, after making
allowance for the two years' interest which had since accrued,
was only a trifle below the amount named by Mr. Clay in his
instructions to Mr. King.^^ This sum Mr. Gallatin was author-
ized to accept.* But before this authorization was received the
British Government had made a formal offer of $1,200,000; and
Mr. Gallatin, basing his estimates on the instructions then in
his possession, had offered as an ultimatum to accept $1,204,900,
and the British Government had agreed to pay it."^
A convention to that effect was concluded
New Conyentioii. by Mr. Gallatin on the 13th of November 1826.
It provided for the payment of $1,204,960, cur-
rent money of the United States, in full satisfaction of all sums
claimed or claimable from Great Britain under the award of
the Emperor of liussia and the convention made to carry it
into eff^ect. It was i)rovided that this sum should be paid at
Washington in two equal installments, the first twenty days
after the British minister in the United States should have
been officially notified of the ratification of the convention by
the President, by and with the advice and consent of the
Senate, and the second on August 1, 1827. The convention of
1822 was annulled, save as to the second article, relating to
the average value of slaves, which had been carried into effect,
1 Am. State l^apors, For. Kel. VI, 1^47.
« Id. VI 348
= 1(1. VI. 349.
^Id. VI. 346.
Bid. VI. 352.
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382 FNTERNi^TlONAL ARBITRATIONS.
and as to so much of the third article as related to the defin-
itive list, which had also been executed.*
By Article Y. of Mr. Gallatin's convention it
*^cd"* * ^^® provided that from the day on which the
ratifications should be exchanged the joint
commission appointed under the convention of 1822 should be
dissolved. The ratifications were exchanged at London on the
Gth of February 1827, and the commissioners and arbitrators
were duly notified of the fact by their respective governments.
On the 26th of March Messrs. Jackson, Cheves, and McTavish
met, and, having declared the joint commission to be dissolved
in virtue of the article in question, adjourned sine die.
3. COMMISSION UNDER ACT OF MARCH 2, 1827.
On the 2d of March 1827* Congress passed an act to carry
the convention of November 13, 1826, into effect. This act
provided for the appointment by the President, by and with
the advice and consent of the Senate, of three commissioners
and one clerk, who should constitute a commission for the pur-
pose of carrying the act into effect. The records of the old
commission, so far as they were under the control of the
United States, were to be delivered to the new commission.
It was provided that the commissioners, or a majority of them,
with their clerk, should meet in Washington on the 10th of the
ensuing July, and proceed to the consideration of claims, allow-
ing such further time for the production of evidence as they
should think just. Compensation was provided for each com-
missioner at a rate of $3,000 a year, and for the clerk at the rate
of $1,500, during the continuance of the commission, which
was not, however, to last after the next session of Congress.
By section 9 it was provided that, as soon as any claim
should be adjudged valid and the principal amount be ascer-
tained, a sum equal to 75 per cent of the principal should be
paid on it, and that when the labors of the commission were
finished the balance of all sums adjudge<l to be due should be
paid if the fund permitted it; and if it did not, that the
remainder of the fund should be distributed in proportion to
the sums awarded. .
1 Am. State Papers, For. Eel. VI. 339. The protocol of the payment of
the first installment is printed at page 372 of that volume.
H Stats, at L. 219.
Digitized by LjOOQIC
INDEMNITY FOE SLAVES. 383
By section 12 it was provided that all claims deposited in
the Department of State which were by mistake omitted from
the definitive list delivered to the former commissioners should
be added to it for a^ustment with the claims previously
entered.
Under this act Langdon Oheves and Henry
QrgaauatUm. Seawell, who had served respectively as com-
missioner and arbitrator under the convention
of 1822, were appointed as commissioners, and with them was
joined James Pleasants, of Virginia.^ Aaron Ogden was ap-
pointed as clerk. They all met in Washington July 10, 1827,
the day fixed by the act, and severally took an oath of office
before William E. Mack, a justice of the peace for the District
of Columbia. On the 11th of July the commissioners promul-
gated rules to govern the transaction of business before them.
On the 13th of July an assistant clerk was appointed at a
salary of $600.
On the 12th of July some of the claimants
Prooednn. represented that, from the shortness of the
time since the transmission of the records and
documents from the office of the Secretary of State, they
could not be prepared on that day to announce whether or no
they were in readiness for trial, and requested that the calling
over of the definitive list might be postponed for the present.
The calling of the list was then postponed until the 13th at 10
o'clock a. m. An order was also made that the clerk be per-
mitted to furnish copies of any papers which were of record in
his office, the applicant paying a reasonable compensation for
such copies. An attorney for some of the claimants moved
that any claimant should be permitted to put down for exami-
nation and decision such part or parts of his claim, from time
to time as he might deem expedient, until his whole claim
should be disx>osed of. On this motion the board ordered that
claimants should be permitted to sever their claims, so far as to
separate slaves from other property, but not so as to put down
part of either.
■ Mr. Pleasants was born in Virginia in 1769, and was a first oousin of
Thomas Jefferson. By profession a lawyer, he was saccessively a mem-
ber of the legislature of Virginia, a Representative and then a Senator
in the Congress of the United States, and governor of his native State,
where he died in 1839.
Digitized by VjOOQ IC
384 INTERNATIONAL ARBITRATIONS.
Various claims accidentally omitted from
Omitted ciaimB. the definitive list were, under the provisions
of the act, placed on it, but the commission
refused to add any claim that was not so omitted. In conse-
quence certain claimants, whose papers were not filed in the
Department of State in time to be entered on the list, appealed
to Congress to direct that their claims be entered. These peti-
tions were adversely reported on the ground that the act was
intended merely to correct a clerical error in the Department
of State, and that it never was the intention of Congress to
sanction the insertion of claims which did not reach that
department till after the definitive list had been closed and
transmitted to the board under the convention of 1822J
The commission proceeded with the business
Conmcting Interests j^^^^qj.^ j^ ^j^-i^ diligence, but not without devel.
oping some differences of opinion among the
commissioners as well as some differences of interest among
the claimants. It was decided that Dauphin Island was in
1815 within the limits of the United States, and no differences
of opinion appear to have arisen in respect of the places from
which slaves were taken. But in respect of the time at which
they were carried away there was much difficulty in reaching
a conclusion. This difficulty especially affected what were
known as the Chesapeake claims, for slaves carried away from
those parts of Maryland and Virginia that border on the Chesa-
peake Bay. The length and circumstances of the British occu-
pation in those parts, and the fact that some of the slaves that
were taken there were sent away before the peace, served to
invest the subject with much uncertainty, for the dissipation
of which it was necessary to rely chiefly on British evidence.
By Article V. of the Gallatin convention it was provided that
the British commissioner should, on the dissolution of the joint
commission under the convention of 1822, make over to the
United States all the documents or x)apers (or authenticated
copies where the originals could not conveniently be made
over) which he had received from his government for the use
of the commission, conformably to the stipulations of the third
article of that convention. These documents and papers were,
however, found to be in many respects inconclusive and
unsatisfactory, nor did they embrace records which were sup-
1 Am. State Papers, For. Kel. VI. 821, 858.
Digitized by LjOOQIC
INDEMNITY FOR SLAVES. 385
posed to exist in some of the liritisii colonies in America show-
ing what slaves were carried away before the exchange of the
ratifications of the Treatyof (5 hent, especially from the Chesa-
peake. In this condition of things many Southern claims,
amounting to about $600,000, were allowed, and the claimants
received their 75 per cent., while the Maryland and Virginia
claims were held in suspense.' This circumstance gave rise to
a clash of interests among the claimants. As the principal of
the claims before the commission i^romised, in spite of Mr.
Clay's computation, to consume almost the whole of the fund,
leaving little or nothing for interest, those whose claims had
beenallowed sought tohavethetimeofthecommission extended,
in order that evidence in opposition to the Chesapeake claims
might beobtained from abroad ; and for this purpose they applied
to Congress. The Chesapeake claimants maintained that when
they had shown that their slaves were taken by the British
forces during the war they raised, in connection with such
other testimony as they had been able to present, a presump-
tion that the slaves remained in the United States till the rati-
licatiou of the treaty of peace, and that unless countervailing
testimony was produced their claims should be allowed with-
out further delay. On the other hand, certain agents for
Georgia and Louisiana claimants, in a memorial to the House
of Representatives, alleged that important testimony had been
obtained to show that the negroes captured in the Chesapeake
had, except such as were enlisted in the black corps, and a
few others, been sent away during the war by every oppor-
tunity, and consequently were not carried away after peace
was restored. This testimony, though taken in conformity
with certain rules of the commission, had, they said, by a
majority of its members been suppressed, on the ground that
it Avas not returned under seal according to the alleged practice
of all judicial tribunals. They contended that the time should
be extended to enable them to retake this testimony as well as
to obtain testimony from abroad. As an additional reason for
such an extension they said that a majority of the commission-
ers had exi)Osed the fund by deciding to admit hearsay testi-
mony and even the depositions of slaves in support of the
claims of their masters. By the opinions of the commissioners
it appears that Mr. Cheves opposed the admission of hearsay
»Am. State Papers, For. Rcl. VI. S55.
5627 25
Digitized by LjOOQIC
386 INTERNATIONAL ARBITRATIONS.
testiiiiouy as well as the testimony of slaves, while Messrs.
Seawell and Pleasants voted for the admission of both, as in
many cases the only evidence of certain facts that could be
obtained. As to what were called the suppressed depositions,
Mr. Cheves was in favor of admitting them, while Messrs. Sea-
well and Pleasants opposed it.^
In view of the conflicting x)ositions of the
Views of Comini*- (.jy^jmants, some desiring and other antagon-
izing an extension of the existence of the com-
mission, Mr. Wickliffe, chairman of the Committee of the
Judiciary of the House of llepresentatives, before whom the
matter was pending, sought to learn the wishes of the commis-
sioners. On the 19th of March 1828 Mr. Pleasants answered,
with the concurrence of Mr. Seawell, that as to the necessity of
an extension of the term of the commission the commissioners
had suggested nothing; that he supposed the design in extend-
ing the term was to enable a certain class of claimants, whose
cases had been decided and who had under the act of Congress
received 75 i)er cent of their principal, to procure testimony,
chiefly from abroad, to prevent claimants from Maryland and
Virginia, commonly called the Chesapeake claimants, from
establishing their claims, the immediate eff'ect of which would
be to stay the proceedings in many cases which were subjudice
and ready for hearing. The commission had, however, left it to
the claimants to consider the question of extension. The fund
would nearly or quite pay the principal amounts due for all the
slaves if, as was believed to be the fact, it should be found that
the other property for which claims were made was destroyed
before the peace and therefore did not come within the provi-
sions of the treaty. In the 75 i)er cent that had been paid out
no interest was included, the question of interest having in all
cases been reserved until it should be known whether the fund
would more than suffice to pay the whole of the principal. The
ground on which the 75 per cent had been adjudged to the
claimants who had received it was ''the evidence produced by
the claimants, positive or presumptive, to satisfy the commis-
sioners or a majority of them," that their claims came within
the i)rovisions of the conventions. The claims on the definitive
list numbered, said Mr. Pleasants, between 1,000 and 1,100.
Nearly 700 had been examined ; of these a number had been
^Am. State Papera, For. Kol. VI. §82-^92,
Digitized by LjOOQIC
INDEMNITY FOR SLAVES. 387
finally decided, except as to interest, and some had been
rejected, while tlie remainder (of the 700) were for the most part
'^partially decided, awaiting the decision of the question of pre-
sumptive evidence." The claims that had not been examined
were deferred, owing to the character of the evidence by which
they were supi)orted and the question whether it would prove
that the property was within the United States at the date of
the ratification of the Treaty of (ihent. This was, said Mi*.
Pleasants, ** precisely what the commissioners have to deter-
mine, it being, indeed, the pivot on which turns the successful
or unsuccessful decision of the claim." Mr. Pleasants added
that if the bill to extend the time so as to enable claimants to
obtain evidence from abroad should not pass, it might still bo
necessary to extend the term of the commission somewhat
beyond the rising of Congress, in order to enable the board to
complete the business before it. But on this point he said that
he could not speak with certainty at the moment.
Mr. Cheves i)resented a separate answer. He said that the
claims which had been examined, and which numbered be-
tween 600 and 700, were principally of two classes. The first
class consisted of those which had been allowed. These were
supported ''by specific testimony, positive or circumstantial,"
which had been "satisfactory to the board, or a majority of it,
l)roving that the slaves claimed in each case were within the
territory or waters of the United States at the date of the rati-
fication of the treaty." The second class consisted of claims
which had not been allowed, but which were kept under con-
sideration. The specific testimony sustaining these, except in
relation to slaves found on the " Halifax list," consisted only
of proof of the taking by the enemy at dif!'erent periods during
the war. "The taking," said Mr. Cheves, "appears to have
been principally between the beginning of June, 1813, and the
beginning of December, 1814; a few only were taken before
June, 1813, and a good many appear to have been taken as
late as the 6th of December, 1814." As to the slaves identified
on the " Halifax list," these being included in the second class
of examined claims, which were held under consideration, Mr.
Cheves observed that what was known as the "Halifax list"
was not one of the documents furnished by the British Gov-
ernment in executicm of the third article of the convention
of 1822, but one which the British commissioner placed in
the hands of the American commissioner at the time of the
Digitized by LjOOQIC
388 INTERNATIONAL ARBITRATIONS.
dissolution of the joint commissiou, with liberty to retain it,
if he thought proper to do so, but without stating how it was
procured or from whence it came, but treating it as an authen-
tic document. The American commissioner of course received
it. It purported to be ^'a return of American refugee negroes
who have been received in the ])rovince of Nova Scotia from
the United States of America between the 27th April, 1815,
and the 24th October, 1818." Mr. Cheves said, in conclusion :
"The claimants of the second class, contend —
"1. That, on principles of law, the proof of the taking at
any period during Ihe war throws the burden on the opposing
party of proving that the slaves claime<l were actually carried
out of the territory and waters of the United States before the
ratification of the treaty; and that, on failure to do so, these
claimants are entitled to a full participation in the fund.
" 2. That the proof of the taking at any time during the war,
with the circumstantial evidence that has incidentally come
before the board, and additional testimony which they have
tiled to sustain this proposition, authorizes the pre8umi)tion
that all the slaves contained in the second class remained in
the United States until the ratification of the treaty, auil
ought to be allowed. In the cases of more recent capture it
is urged that this presumption is the stronger.
*'3. It is contended that, in addition to this general pre-
sumption, the Halifax document should be taken in itself as
sufficient evidence that all those contained therein were taken
away after the ratification of the treaty.
"The claimants of the first class resist the first of these
propositions as unfounded in principle, and the second and
third as unsustained by the evidence relied upon. They
contend, on the contrary, that the evidence before the board
repels these presumptions; and they allege that they Ciiii
disprove them, if allowed time to procure the testimony, some
of which, they state, is to be obtained from abroad. The
object of the bill from the Senate is understood to be to grant
this time. On the merits of this bill I presume I am ncit
expected to give any opinion; but it is proper I should say
that, if it be rejected, some further time may nevertheless Ih5
necessary to close the business of the board, but whether any
lurther time will be necessary, or, if any, what time, I am at
l)resent unable to say. If a more partic>ular knowledge of the
points in controversy be desired, it will be obUiined by refer-
ence to the printed arguments of counsel on either side. The
first of these was filed by the claimants of the second class in
the beginning of November last, when these points were, for
the first time, submitted for hearing, although they had, at the
fii st nueting of the board, been mentioned as points that would
be raised.
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INDEMNITY FOR SLAVES. 389
"I believe tlie foregoing statement of facts affords tbe best
information I can give on tbe questions growing out of tbe reso-
lutions of tbe House of Representatives, except tliat wliicb
directs an inquiry 'wbetber tbe fund now remaining to be dis-
tributed by tbe Commissioners be sufficient to satisfy tbe prin-
cipal sum claimed for relugee slaves and otber property entered
on tbe definitive list V To tbis I reply tbat it is not sufficient,
and tbat tbe claims for slaves alone, (considering tbe decision
ot tbe board tbat claimants for slaves originally taken from
otber States, but found in Georgia, or tbe waters tbereof, at
tbe ratification of tbe treaty, sball be entitled to tbe Georgia
average,) if all claims for tbat species of property be allowed,
will alone absorb the wbole fund received from Great Britain.''*
On tbe 25tb of April 1828, many members of
Close of Commiiiioii. tbe House of Kepresentatives baving desired
a more explicit expression of tbe opinion of
tbe commission as to tbe proposed extension of its duration,
Messrs. Cbeves, Pleasants, and Seawell joined in a letter to
Mr. Wickliffe, in wbicb tbey said tbat two meii.bers of tbe
board, Messrs. Pleasants and Seawell, were of opinion ^'tbat
no extension of time for tbe purpose of obtaining testimony by
tbose wbose claims bave been allowed sbould be granted," and
» Am. state Papers, For. Rel. VI. 860-863. In the luaDUScript records of
the joint commission under Article III; of the convention of 1822 it
appears that on December 29, 1824, Messrs. Livingston, Johnson, and
Boaligny, attorneys for Louisiana claimants, iuc^uired whether proof of
slaves having been found on board of British vessels "at a time shortly
before the ratification of the treaty (of Ghent), will not throw the burden
of their having been removed subsequent to the ratiHcation on His
Britannic Majesty's Government ? " Mr. Jackson, tlie British commissioner,
replied that the question could become a matter of consideration only
when each case should be brought before the board, but that he had "no
hesitation in adding unequivocally his opinion that H. B. Majesty can
not under the convention be required to make compensation for any
slaves who shall not be proved by the claimants to have been within the
Territory or Waters of the United States at the moment of the exchange
of the ratifications of the Treaty of Ghent.*' Mr. Cheves, on the other
hand, though he did not feel at liberty "to declare any opinion" on the
question "until he had maturely considered it," said he could not hesitate
to declare "that according to his views of the nature and principles of
evidence, whether those of positive institution, or those which he con-
siders as belonging to immutable truth, there may be many cases in which
the precise proof which the British commissioner deems necessary, would
not be required.'' He concarred with the British conmiissioner "so far as
to be of opinion that the question propounded, being one concerning the
weight and effect of testimony, will most properly be left open till it
occurs in a particular case."
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390 INTERNATIONAL ARBITRATIONS.
that the other member, Mr. Chevea, was "of a contrary opin-
ion." But they were unanimously of opinion that, partly in
consequence of the suspension of the business of the board
while the bill to extend its duration had been under consider-
ation, some extension of the time beyond the probable sitting
of Congress would be necessary to enable it to close in a cor-
rect and deliberate manner the business before it, and that a
period earlier than the middle of August would not suflBce for
that purpose.^ Congress, practically adopting the view of the
majority of the commissioners in regard to the attempt to de-
feat the Chesapeake claims, passed an act, which was approved
Mi\y 15, 1828,2 and by which it was provided that the com-
mission should not continue after the 1st of the next Sep-
tember. The last meeting of the commission was held the
31st of August. It was then found that the sums awarded,
exclusive of interest, amounted to $1,197,422.18, which left
of the $1,204,960 directed to be distributed only the sum of
$7,537.82. Tliis sum the commission ordered ^' to be distributed
and paid ratably to all the claimants to whom awards have
been made."
' Am. state Papers, For. Rel. VI. 962.
M State, at L. 269.
Digitized by LjOOQIC
CHAPTER XII.
THE LONDON COMMISSION OF 1853-1855: CONVEN-
TION BETWEEN THE UNITED STATES AND GREAT
BKITAIN OF FEBRUARY 8, 1853.
Of the convention between theUnited States
which a mixed commission wtis constituted to
adjust all claims then outstanding between the two countries,
Mr. Seward once remarked that it "had the prestige of com-
plete and even felicitous success." ^ This happy result was
due, however, not so much to the particular provisions of the
convention as to the manner in which they were executed.
The convention provided for the appointment of two commis-
sioners, one to be named by the President of the United States
and one by Her Britannic Majesty, who should meet in London
at the earliest convenient period after they should have been
named, and who should, "before proceeding to any business,
make and subscribe a solemn declaration that they will impar-
tially and carefully examine and decide, to the best of their
judgment, and according to justice and equity, without fear,
favor, or afitection to their own country, upon all such claims
as shall be laid before them on the part of the governments of
the United Stjites and of her Britannic Majesty, respectively."
This requirement having been complied with, it was provided
that the commissioners should "then, and before proceeding
to any other business, name some third person to act as arbi-
trator or umpire in any case or cases on which they may them-
selves differ in opinion;" and that, "if they should not be able
to agree upon the name of such third person, they shall each
name a person; and in each and every case in which the com-
missioners may differ in opinion as to the decision they ought
to give, it shall be determined by lot which of the two persons
so named shall be the arbitrator or umpire in that particular
case." It thus appears that, in the event of the commissioners
» Mr. Seward to Mr. Reverdy JohnsoD, November 27, 1868. (Dip. Cor.
1868, parti, p. 380.)
391
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392 INTERNATIONAL ARBITRATIONS,
not agreeing on an umpire, tliey were thrown back on the plan
of repetitiously choosing one of two persons by lot in each ease
of diflference, which resulted so unfortunately in the case of the
joint commission under the convention of 1822, whose history
has been just narrated, and which, by rendering the applica-
tion of principles a matter of hazard, could scarcely fail, even
if the commissioners should faithfully give it effect, to produce
inharmonious decisions and contradictory results, yielding to
one claimant redress and denying it to another under precisely
similar circumstances. This aspect of the plan was well illus-
trated by Mr. Clay in his computation of the lump sum which
was accepted in lieu of the awards that might have been made
under the convention of 1822. In estimating the amount to be
paid as interest on the claims he deducted one-half on the
ground that, as one of two persons, respectively named by the
two governments, was to be chosen by lot as arbitrator in each
case of difference, it was to be assumed, on the supposition
that the lot would fall equally often on each person, that one
half of the suitors would obtain interest, while the other half
would not.
It was not a groundless assumption. The
KffBTte to Choose ^^uyg^^tj^n ^f 1353 however, afforded the com-
missioners an opportunity to agree on an
umpire, and fortunately both commissioners were duly im-
pressed with the great importance of the subject. The Amer-
ican commissioner, in a letter to his British colleague, said:
"By the terms of the Treaty for tlie adjustment of claims,
entered into between the United States and Great Britain, it is
provided that the Commissioners appointed by the respective
governments shall, before proceeding to any other business,
name some third person to act as Arbitrator or Umpire in any
case or cases in which they may themselves differ in opinion, and
that, if the Commissioners should not be able to agree on some
person, they should each name a person as Umpire, and that
the Umpire who should act, in case of any difference of opinion,
should be designated by lot.
"The Commissioners therefore have not only the duty de-
volved upon them, by the terms of the Convention, of a speedy
and impartial settlement, according to justice and equity, of
subsisting claims of citizens of either country on the Govern-
ment of the other, but also of constituting, in conformity to the
same principles of justice and equity, the tribunal which is to
be the ultimate arbiter in the decision of these claims. A
proper discharge of this duty is of vital consequence to the
success of the Convention.
"A disagreement as to the person who shall be selected as
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LONDON COMMISSION OF 1853. 393
Umpire, and the necessity of resorting to the contingency of a
Lot to coiistitate one in any given case, must detract greatly
from the moral eifect of any decisions made by the Commission.
"If the Commissioners disagree as to men from just cause, a
subsequent selection by either party of those men by lot neces-
sarily constitutes an unequal and unjust tribunal between the
parties, and the remaining forms of a trial might as well be
dispensed with.
"If they disagree, /rom any causej the Tribunal is necessarily
constituted of men unsatisfactory to the Commissioners, and
an adverse decision whether right or wrong would naturally
carry the impression to claimants that their cause was lost, not
from want of its justice, but for want of a fairly constituted
tribunal.
" Under these circumstances it is highly important that the
Commissioners should agree and to effect this, should adopt
such principles of selection in coming to a decision, as will be
most likely to ensure the appointment of an Umpire impartially
situated between the Governments and the Claimants, not
merely nominally, but actually so.
"This action of the Commissioners on this point is not only
important as regards the issue of this Convention, but its suc-
cessful organization may go far to establish the practice of
mutual arbitrations between our own Governments in future,
and between other Governments in similar claims.
" Such claims must necessarily arise from time to time under
the extended commercial relations of the two countries, and
the same difficulties of adjustment of them that have hereto-
fore existed will doubtless continue.
"The delays incident to official intercourse between Gov-
ernments, the frequent changes in Administrative Officers, the
difficulty in procuring appropriations through the respective
legislative branches of either Government for the payment of
claims if allowed, the fact that the allowance of such claims
for the most part is the impeachment of the just and proper
conduct of the Executive Officers themselves, and the fact
that the discussion ami allowance of claims are sometimes
embarrassed by partisan conflict and feelings, are circumstances
common to both Governments which tend greatly to dishearten
claimants, excite national animosities and render it desirable
that an equal and impartial Tribunal independent of any such
difficulties should be constituted, whose sole duty shall be, in
a judicial capacity, to adjust such claims.
" Our great aim then is to constitute a Tribunal, mutually
appointed, standing in a just and equal position between the
Governments and the Claimants, to adjust these matters; and
a failure to do this, is substantially a failure of the great ob-
jects of the Convi»ntion while it necessarily impairs the hopes
of all similar attempts at adjustment." ^
' Mr. Upham to Mr. Hornby, London, September 22, 1&53. (MSS. Dept. of
State.)
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394 INTERNATIONAL ARBITRATIONS.
As to the person who would satisfy these requirements, the
American commissioner said that the umpireappointed <^ should
be favorably known in America and have an established repu-
tation there for integrity and impartiality;" that, as the term
of the commission was limited, he should be immediately acces-
sible; that, in order to avoid the translation of evidence and
arguments, he should be able to speak and write English;
and that, from various considerations, including the fact that
his compensation would be very limited, he should have a resi-
dence in London. The American commissioner therefore
suggested for the place George Peabody, who, though an
American, had long resided and was permanently established
in London. He thought Mr. Peabody better suited to the
position than a person who was neither an Englishman nor
an American, since few foreigners in London were known in
America, except certain individuals who had ''come in col-
lision with their own governments," and who might therefore
be prejudiced against existing forms of government in Europe,
and the diplomatic representatives of other nations, who were
open to objection from the circumstance that claims similar
to those to be decided might be i)ending between the United
States or Great Britain and their own governments, as well
as from their oilQcial position and the intimate connections
between their governments find Great Britain.
Such were the views of the American commissioner as ex-
pressed both in his letters and in personal conferences with
the British commissioner.
While observing that the convention did not fix the com-
pensation of the umpire, and that the pecuniary question
would probably be a matter of secondary consideration, the
British commissioner, although agreeing that it was desirable
for the umpire to reside in London and to be thoroughly ac-
quainted with the English language, said that these x>oints
were in his opinion of less moment than *Hhe all important,
one of the umpire's possessing the qualification of being en-
tirely free from bias, either by reason of nationality, connection ,
or of any possibility of interest in the matters or questions to
be determined." With this view he suggested the names of
Count Stezlecki, M. Van de Weyer, the Chevalier Bunsen, the
Due de Broglie, the Due de Nemours, Prince Joinville, M,
Guizot, and M. Lamartine. M. Van de Weyer was then the
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LONDON COMMISSION OF 18a3. 395
minister of Belgium, and the Chevalier Bunsen the miui«terof
Praasia, in London; but tiie British roniuiissioner thought
that this fact ought not to be considered, since their literary
and social reputation entitled tliem '*to take rank amongst
that cltiss (»f citizens of the world in whom every nation takes
a pride, whose fame is the common property of all, and whose
feelings, sympathies, and interests maybe fairly considered as
not confined to one place or i)Cople, but equally and indiffer-
ently spread over the whole world." Nor could such men as
the French princes, the Due de Broglie, and MM. Stezlecki
and Lamartine have any bias on the claims in question. As
to Mr. Peabody, the British commissioner said that he did not
mean "for a moment to cast the slightest shadow on the repu-
tation of that gentleman, either as a citizen of the Unite<l
States, or as an American merchant residing" in London; he
had honorably earned a high character for integrity and up-
rightness, and retlected credit on the country of his birth ; but
he was "essentially an American, standing at the head of the
American commercial firms" in England, and looked upon "as
par excellence the representative of the American commercial
community" in that country. To take hini from that spliero
and put him in the post of umpire would be to place him in
an invidious position. Being doubtful as to the propriety of
choosing either a British subject or an American citizen, the
British comnn'ssioner said he had refrained from otticially re-
ferring to natives of Great Britain; but he suggested, as
among those whose character, re[)utation, independent station,
and social position placed them above all suspicion, Lords
Brougham, Truro, and St. Leonards, ex-Lord Chancellors of
Great Britain ; Mr. Justice Patteson, ex-judge of the Queen's
Bench; Thomas Babington Macaulay, George Grote, and
Thomas Baring. At the same time he thought it was among
foreigners, entirely indifferent to both countries, that an
umpire should be selected.^
The American commissioner would not ex-
Agreem^ <m r. ^j^jj^ foreigners, and expressed his sense of
the character and reputation of those whom
the British commissioner had mentioned; but he was still
deeply impressed with the difficulties of selecting one free from
the objections which he had previously stated. As to the
' Mr. Hornby to Mr. Upliain, September 27, 1853. (MSS. Dept. of State.)
Digitized by LjOOQIC
396 INTERNATIONAL ARBITRATIONS.
Britisli subjects who had been sn^rgested, he. fully eoncnrred
in all that had been said concerning them, and, were the hear-
ing in his own country, he should hardly object to some of
them. But the American claimaTits had (tome a long distance
to present their petitions, and might think it hardly equal if,
in addition to this circumstance, the umpire should be taken
. from England. In the belief that it would, under the circum-
stances, be more equal to select an umpire from America, the
American commissioner said that he might name a gentleman,
then on the Continent, but soon to return to London, who wcuM
compare favorably with an}' one who had been mentioned, whose
fanie was achieved, and who had no ambition to gratify " ex-
cept perhaps that of establishing a reputation for justice in
both hemispheres." He referred to Martin Van Buren, lately
President of the United States, and he also named, as persons
l)osses8ing an English as well as an American reputation,
Uichard Bush, Washington Irving, Bussell Sturgis, and
Thomas Asi)inwall, formerly American consul at lx>ndon and
for twenty years a resident there.'
On the other hand, the British commissioner said that, while
he was willing to admit the force of some of the observations
as to the national feelii»g which might possibly arise in America
regarding the fairness of decisions made in England, and at a
distance from the residence of the American claimants, he
could not admit as founded in reason or justified by experi-
ence the implication either that England exercised so vast an
influence on the rest of Europe as to render her cajiable, even
if she were so inclined, of prejudicing the interests of the peo-
ple of any other country in such questions as those involved
in the claims about to be submitted to decision, or that, in so
far as the illustrious foreigners whom he ha<l named were
concerned, her influence could in any instance warp their judg-
ments or give their minds an undue or improper bias, or that
any consideration, i)ublic or private, could induce men of such
high standing and universal fame to depart one hair's breadth
from that clear and straightforward course which an umpire
should pursue. '^ It was this conviction," continued the Brit-
ish commissioner,
"which led me to submit their names to you, and it is an
undoubted confidence in the integrity of the great men of your
' Mr. llpham to Mr. Hornby, October 3. 1853. (MSS. Dept. of State.)
Digitized by LjOOQIC
LONDON COMMISSION OF 1853. 397
country that indaces me to acquiesce in the nomination of Mr.
Martin Van Buren, and I do so the more readily because I can-
not but conceive that the man whom the citizens of so great a
country as the United States should have deemed worthy to
till the part of Chief Magistrate and Ruler, must likewise be
worthy of the confidence of a nation whose laws, sympathies,
and feelings are nearly identical with their own.
"Mr. Martin Van Buren's career and character are so well
known and esteemed in England, and his reputation as a states-
man, a lawyer and a gentleman, is so firmly established here,
that I do not hesitate to waive in his favor the more important
of the objections which I felt myself justified in making to the
appointment of an American to the othce of umpire under the
convention constituting the commission; and in so far as he
is concerned, I am willing to give up my own opinion on the
expediency of choosing that officer from a class entirely indif-
ferent bj' reason of nationality to the claimants of eithercountry.
" In thus acquiescing in the nomination of one of the gentle
men proposed by you, a countryman of your own, and also of
oue section of the claimants, I am actuated alone by the con-
sideration of his high personal qualifications, my full reliance
on your good faith, and my own desire to avoid the alternative
provided by the convention in case of a disagreement between
us on this important particular. To these considerations I look
for my justification with my countrymen, feeling assured that
in having acted on my own judgment for the best, I am en
deavoring, so far as it is in my power, to serve indifferently the
real interests of both sets of claimants."*
On the 13th of October 1853 the commis
V Biiren. sioners wrote to Mr. Van Buren, who was then
in Florence, apprising him of his selection as
umpire and expressing the hope that he might be able so to act.
On the 22d of October Mr. Van Buren replied, expressing his
regret to find himself constrained to decline the appointment.
He said :
"After spending the principal part of my life in the public
service, I have for several years withdrawn myself not only
from all personal participation in public affairs, but from at-
tention to business of every description, save only what has
been indispensable to the management of my private affairs.
By adhering to this course I have secured to myself a degree
of repose suitable to my age and condition, and eminently con-
ducive to my happiness, and nothing could be more repug-
nant to my feelings than to depart from it now. Still if the
matters in contestation consisted of a single question, which I
could dispose of by one decision, in case of difference between
the commissioners, I would not under the circumstances feel
* Mr. Hornby to Mr. Upham, October 11, 1853. (MSS. Dept. of State.)
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398 INTERNATIONAL ARBITRATIONS.
myself at liberty to decline the respousibility of the niiipirage.
But my knowledge of the character of joint commissions like
the present, and their almost invariable tendency to be kept
on foot long after the expiration of the time first agreed apou
for their conclusion, satisfies me that I ought not at my time
of life to accept a trust which, besides exposing me to serious
inconvenience, must control my personal movements for a con-
siderable length of time, and may postpone my return to the
United States to a period far beyond that which would be at
present anticipated."^
Mr. Van Buren having declined the post of
SAlactioQ of Joihiia • ^i a •
^ umpire, the American commissioner proposed
in his place Joshua Bates, of London, of the
firm of Baring Brothers & Co. *' Mr. Bates," said the Ameri-
can commissioner, ^^is an American born citizen, who in early
life gained such reputation for intelligence, energy, honorable
character, and business acquirements as to cause a demand
for his services in the leading banking house of this country
and the world. His long residence in England in that posi-
tion and his great success has established him here perma-
nently as his adopted home, and has given him a standing and
character that should impart full confidence to the claimants
of both countries, as well as to the governments themselves,
in the intelligence, integrity, and impartiality of his decisions.^'
In the nomination of Mr. Bates the British commissioner
concurred, "having every confidence in his integrity and un-
blemished reputation." The nominee was at once notified of
his selection, and duly accepted the trust; and, having received
a commission,^ he attended the meeting of the commissioners
» S. Ex. Doc. 103, 34 Cong. I sess. 456-457.
« Mr. Upham to Mr. Homby , October 31, 1853. (8. Ex. Doc. 103, 34 Cong.
1 sesB. 457.)
3 "To all and singalar to whom thesA presentn shall come, greeting:
^* Whereas, a convention wivs concluded and signed, at London, on the
eighth day of February, one thousand eight hundred and fifty-three,
between the United States of America and her Britannic Mi^esty, for the
adjustment of certain outstanding claims of citizens of either government
against the other, by which it is provided that one commissioner shall be
named by each of said governments, with power to investigate and decide
upon such claims, and that the said commissioners shall name some third
person to act as arbitrator, or umpire, in any case or cases on which they
may differ in opinion; and the honorable Nathaniel G. Tpham having been
appointed commissioner on the )>nrt of the United States, and Edmund
Hornby, esquire, on the part of her Britannic Majesty, and having been,
severally^ duly qualided and entered on the duties of their commisaiony
Digitized by LjOOQIC
LONDON COMMISSION OF 1853. 399
on November 14, 1853, aud made and sabscribed the solemn
declaration required by the convention.*
Joshaa Bates was born at Weymouth, Massachusetts, in 1788.
At the age of fifteen he entered the countiughouse of Mr. Wil-
liam E. Gray, an eminent merchant of Boston, and at one time
the largest shipowner in America. After some years he was
sent to Europe as Mr. Gray's agent, and established his head-
quarters in London. In the course of his business, which often
required him to visit the Continent, he attracted the favorable
regard of Mr. Peter Go^sar Labouchcre, a connection of the
Barings and head of the house of Hope & Co., of Amsterdam.
Through Mr. Hope he became associated in business with one
of the Barings, aud in time was admitted as a partner in the
house of Baring Brothers & Co., in which be at length became
the senior member and acquired his large fortune. In more
than one conjuncture his position, due not only to his extensive
connections in business, but also to his high personal character,
aDd OQ the tbirty-firHt day of October, 1853, having agreed on Joshua
Bates, esquire, of Londou, as arbitrator, or umpire:
''Now, therefore, be it known that we, the undersigned commissioners,
reposing especial trust and confidence in the impartiality, integrity, and
ability of said Joshua Bates, esquire, do hereby, by virtue of the authority
invested in us as aforesaid, appoint him arbitrator, or umpire, under said
conveution, and do authorize aud empower him to execute and fulfill the
duties of said office, with all the powers and privileges connected there-
with, according to the provisions of the convention.
''In witness whereof, we have hereunto severally affixed our signatures
this thirty- first day of October, one thousand eight hundred and fifty-three.
"Nathaniel G. Upham,
^*Commi99ianer on the part of the United States.
"Edmund Hornby,
"ComynissUmer on the part of Great Britain,*'
(S. Ex. Doc. 103, 34 Cong. 1 sess. 19. )
1 "I hereby solemnly declare that I will impartiaUy and carefully exam-
ine and decide, according to the best of my judgment and according to
justice and equity, without fear, favor, or affection to the government of
the United States or of her Britannic Majesty, all such claims as may be
submitted to me as arbitrator or umpire by the commissioners of the said
governments appointed for the adjustment of certain claims on the part
of citizens of either of the said governments against the other, under a
convention signed at London, February eight, one thousand eight hundred
and fifty -three.
"In witness whereof, I have, this fourteenth day of November, made and
subscribed this solemn declaration.
'*Jo6UUA Batksj."
(S. Ex. Doc. 103, 34 Cong. 1 sesis. 20.)
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400 INTERNATIONAL ARBITRATIONS.
enabled him to contribute to the good relations between the
country of his birth and that of his adoption. In 1852 he gave
the first effective impulse ''to the foundation on a broad basis
of the Boston public library by a gift of $50,000, which he
afterward more than doubled by the purchase and donation of
books." ^ The reading room in the new Boston public library,
as was that in the old, is called Bates Hall, in memory of Joshua
Bates. There are also two portraits of him in the library, one
of which hangs in the trustees' room.' It may be remarked
that Mr, Bates's only child, a daughter, was the wife of M. Van
de Weyer, the Belgian minister in London, who was suggested
by the British (commissioner as a desirable person for umpire.
A.S umpire, Mr. Bates, if possible, more than fulfilled tbe
exi)ectatious formed of him, and materially contributed to the
happy results of tiie commission. On many of the most
imi)ortant and delicate questions before the board it became
his duty to give the final decision. Though this circumstance
rendered his labors arduous and his responsibility great, he
decided all questions that came before him with promptitude,
and with a sound, impartial, independent judgment, and,
although provisi<»n was made by the convention tor the com-
pensation of the umpire, he declined to receive for his services
any remuneration whatever.
On the part of the United States the com-
The CommiMionerB. missioner was Nathaniel G. Upham, of New
Hampshire, a neighbor of President Pierce,
by whom he was appointed, by and with the advice and con-
sent of the Senate, on March 23, 1853. Mr. Upham wa« a
native of New Hampshire, having been born at Deerfield on
January 8, 1801; he died at Concord in 1869. A graduate of
Dartmouth College, he adopted the profession of the law, and
was for some years a judge of the supreme court of New
Ham])shire. Besides acting as commissioner under the pres-
ent convention, he was umpire of the commission under tbe
treaty between the United States and ifew Granada of Sep-
t^jnber 10, 1857.
On the part of Great Britain the commissioner was Edmund
Hornby, who was appointed by the Queen on August 26, 1853.
' A Memorial of .loRhua Bates from the City of Boston: Boston, 1865.
> llaQdbook of the New Public Library in Boston, 73,
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LONDON COMMISSION OF 1853. 401
Mr. Hornby was trained to the law and admitted as a bar-
rister. In 1855, after his service under the present convention,
he was appointed a commissioner on behalf of England to con-
trol the expenditnre of the Turkish loan. He also became
judicial assessor to the British consulate-general at Constanti-
nople. During the Crimean war he was sole arbitrator in all
questions arising between the British Government and the
contractors for supplies to the army in the East. From 1867
to 1864 he was judge of the supreme consular court of the
Levant at Constantinople. In 1862 he was knighted, and in
1865 he became judge of the British supreme court of China
and Japan. He was retired on a pension in 1876, and has
lately died. His last published work was a pamphlet contain-
ing an interesting plan for an international court of arbitration.'
The object of the tribunal, as described by the author, would
be not only to decide particular disputes, but also to build up
the system of international law. In this aspect the tribunal
would form a college as well as a court. For the purpose of
constituting it, nations would be divided into three classes,
according to their respective resources. Each nation would
be invited to nominate, for a period of at least ten years, a
member, not necessarily of its own nationality and not as its
representative, but as a person possessing proper qualifications
for membership. It would be left open to nations of the second
and third classes to nominate or not while adhering to the
scheme. The locality of the tribunal should be permanent,
and on quasineutral ground, such as Switzerland. Its site
should be declared extraterritorial, and its members and staff
invested with ambassadorial privileges. The members should
have the title of senators or of juriscouvsults, preferably the
former, and rank next to sovereign rulers; and they should
choose from their number a president annually, by secret bal-
lot, the i)erson so chosen to be eligible for reelection by a two-
thirds vote. They should be absolved from allegiance to any
earthly power, and forbidden to accept during life any title,
rank, decoration, or place from any one. For at least nine
months in each year they should reside at or near the seat of
the tribunal; their salaries should not be less than £10,000 a
year, and, if not renominated, they should receive a retiring
^ An International Tribunal, by Sir EUmund Hornby: London^ 1895.
5627 26
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402 INTERNATIONAL ARBITRATIONS.
pension of £3,000. ,Tlie tribunal should also have a chief sec-
retary, appointed for life, but removable by a two-thirds vote
of the senators. This secretary would have charge of the gen-
eral staff; his salary should be £5,000 and his retiring pension
£2,500. All expenses of the tribunal, Including the cost of suit-
able buildings, should be paid out of a common fund, to which
each first class power should contribute the same amount, and
the second and third class powers each a half and a third as
much, respectively. To the tribunal so created and maintained
would be referred "any and every question between the adher-
ing lowers on every failure by ordinary diplomatic effort to
effect a settlement.'' When necessary, a committee of the
senators, not including the nominees of the parties interested,
might establish a modus vivendi pending a final decision. This
decision should represent the absolutely free judgment of each
senator, and in order to avoid the exercise of personal influence
by one arbitrator over another in the rendition of final judg-
ments, each senator should, after the discussions were ended,
himself prepare a draft judgment which would be deposited iu
a common receptacle, like the Lion's Mouth at Venice, from
which it would be taken and printed anonymously. Each
senator, after he had been furnished with printed cupies of
all the draft judgments, would then settle and prepare his
own final judgment, which would be deposited and printed in
the same manner as the draft. The majority would become
the judgment of the tribunal. The publication of the several
judgments, unsigned or signed, would be within the control
of the tribunal. If, in case each adhering nation should
nominate a member, the number of senators should become
very large, a tribunal of first instance might in each case be
formed of seven members, two of whom should be of the nation-
ality of the disputants, the judgment of such tribunal to.be
subject to the revision of the rest of the senators. Such was
Sir Edmund Hornby's ''broad outline of an international court
or college for the determination of disputes between uatiouSy
and for the gradual development of a system of international
law."
The commissioners appointed as secretary or clerk Nathan-
iel L. Upham,
The convention provided that the commis-
The Agents. sioners should, if required, hear ''one person
on each side, on behalf of each government, as
counsel or agent for such government, on each and every
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LONDON COMMISSION OF 1853. 403
separate claim;" and each government was authorized "to
name one person to attend the commissioners as agent on its
behalf, to present and support claims on its behalf, and to
answer claims made upon it, and to represent it generally in
all matters connected with the investigation and decision
thereof." To discharge this duty on the part of the United
States President Pierce, on the 19th of April, 1853, appointed
John Addison Thomas, of New York.^
Mr. Thomas, who was born in Tennessee in 1811, graduated
at West Point, where he was successively an assistant instructor
ill infantry tactics, assistant professor of geography, history,
and ethics, and commaudant. In 1846 he resigned a captaincy
m the Army to practice law in New York City. Later in the
same year, the Mexican war haviug broken out, he became
colonel of the Fourth New Y'ork Eegiment; but it was not mus-
tered into service. After serving as agent under the present
convention, he became Assistant Secretary of State of the
United States, a post which he held till April 4, 1857.
As agent on the part of Great Britain, the Queen appointed
James Hannen, whose commission bore date November 16, 1853,
and whose recent death has deprived the English bench of one
of its ihoBt illustrious members.
> His commiBsion was as follows :
** Franklin Pierce, F^resident of the United States of America, to all who
shall see these presents, greeting:
"Know ye, that reposing special trust and confidence in the integrity
and ability of John A. Thomas, of New York, I do appoint him to be agent
of the United States under the convention with her Britannic >fajesty of
Febraary 8, 1853, on the subject of claims, and do authorize and empower
him to execute and fulfil the duties of that office according to law.
"And to have and to hold the said office with all the powers, privileges,
and emoluments thereunto of right appertaining unto him, the said John
A. Thomas, during the pleasure of the President of the United States.
" In testimony whereof I have caused these letters to be made patent
and the seal of the United States to be hereunto affixed.
"Given under my hand, at the City of Washington, the nineteenth day
of April, in the year of our Lord one thousand eight hundred and fifty-
three, and of the independence of th<) United States of America the seventy-
seventh.
"Fkanklin Pibrce.
"By the President:
"William L. Marcy,
'^Secretary of State,'*
(S. Ex. Doc. 103, 34 Cong. 1 sess. 19.)
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404 INTERNATIONAL AKBITRATIONS.
It is proper here to state that in varioas
Private Gouiuei. cases the commissioners heard private coansel
for claiman ts, such conusel being introduced to
the board by the agent of the government of which the claim-
ant was a citizen. Among the counsel who so appeared were
Messrs. Cairns, Reverdy Johnson, J. O. Bancroft Davis, and
Bolt, Q. 0.
The of&ce of the commission was established
^^'^^^^'^' at 9 Wellington Chambers, Lancaster Pla^e,
Waterloo Bridge, London. Here the commis-
sioners, on September 15, 1853, held their first formal meeting.
At this meeting they exchanged their commissions and, after
subscribing •the declaration required by the convention^ and
deliberating on the question of an umpire, they severally ad-
dressed to their respective governments a communication,
stating the time and place of the meeting and requesting that
notice be given to claimants of the pendency of the commission.
At a subsequent session of the board it was determined that
meetings would be held daily from 12 to 3 o'clock until other-
wise ordered. Bules also were adopted for the regulation of
business and the government of procedure.
Several cases were partially heard .before
Cooperatioii of TTm- ^jj^ umpire was selected. Subsequently, when
pxro an om certain cases were finally heard and the com-
noneTB. ''
missioners were unable to agree, the umpire
attended and the cases were argued before him. In many cases,
however, the hearing was held by the commissioners in the first
^ '' We, the undersigned commissioners, appointed in puraaanoe of a con-
vention for the adjostment of certain claims of citizens of the United States
on the British government, and of British subjects on the government of
the United States, concluded at London the eighth day of Febmary, one
thousand eight hundred and fifty-three, do severally and solemnly declare
that we will impartially and carefully examine and decide, to the beet of
our judgment and according to justice and equity, without fear, favor, or
affection to our countries, upon all such claims as shall be laid before ns
on the part of the governments of the United States and of her Britannic
Majesty respectively.
"In witness whereof we have, this fifteenth day of September, one thon-
sand eight hundred and fifty-three, made and subscribed this our solemn
declaration.
"Nathaniel G. Upham,
*' Commissioner on the pari of the United Statue.
"Edmund Hornby,
** Commissioner on the part of her Majesty J^
(S. Ex. Doc. 103, 34 Cong. 1 sess. 14.)
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LONDON COMMISSION OF 1853. 405
instance in the presence of the umpire.' The convention ex-
])ressly required that the umpire shouUl, if required, hear one
]>er8on on each side, on behalf of each government, and that
he should consult with the commissioners before rendering
his final decision. This provision, or rather the wise practice
under it, made the umpire substantially a member of the com-
mission and did much to obviate the inconveniences, the delays,
the double arguments, the waste of effort, the temptation to dis-
agree, and the opportunity and incentive to claimants to attempt
to concentrate personal influence, that generally and to some
extent inevitably result from having two or four commis-
sioners and an umpire, instead of a board of three or«^ve
commissioners.
The jurisdiction of the commission embraced,
. , * as it was defined in Article I. of the conven-
vftniTnifiiifT.
tion, '^all claims on the part of corporations,
companies or private individuals, citizens of the United States,
upon the government of her Britannic Majesty, and all claims
on the part of corporations, companies or pnvate individuals,
subjects of her Britannic Majesty, upon the government of
the United States, which may have been presented to either
government for its interposition with the other since the sig-
nature of the treaty of peace and friendship, concluded between
the United States of America and Great Britain at Ghent, on
the 24th of December, 1814, and which yet remain unsettled,
as well as any other such claims, which may be presented
within the time specified in Article III. hereinafter." By
Article III., to which reference was thus made, it was provided
that "every claim '^ should be "presented to the commissioners
within six months from the day of their first meeting, unless
in any case where reasons for delay shall be established to the
satisfaction of the commissioners or of the arbitrator or umpire,
in the event of the commissioners differing in opinion there-
upon ; and then, and in any such case, the x)eriod for presenting
the claim may be extended to any time not exceeding three
months longer." It was expressly agreed "that no claim aris-
ing out of any transaction of a date prior to December 24,
1814," should be admissible under the convention. The com-
missioners were required to examine and decide every claim
within one year from the day of their first meeting; and they,
and, in case they differed, the umpire, were empowered "to
»S. Ex. Doc. 103, 34 Cong. 1 sees. 44, 46, 48.
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406 INTERNATIONAL ARBITRATIONS.
decide in each case whether any claim has or has not been
duly made, preferred, and laid before them, either wholly, or
to any and what extent, according to the true intent and
meaning of this convention."
In the investigation and decision of claims
Prooednre. the commissioners were authorized to proceed
in such order and in such manner as they
might think proper, but upon such evidence or information
only as should be furnished by or on behalf of their respective
governments; and they were bound to receive and peruse all
written documents or statements which might be presented to
them by or on behalf of their respective governments in sup-
port of or in answer to any claim. All decisions of the com-
missioners or the umpire were required to be in writing, and
to be signed by them respectively, and were to be final and
conclusive on each claim decided by them.
. It was provided tliat all sums awarded by
^'^romM *** *^® commissioners, or by the umpire, on ac
count of any claim should be paid by the one
government to the other, as the case might be, within twelve
months after the date of the decision, without interest, and
without any deduction, except that the whole expenses of the
commission, including contingent expenses, should be defrayed
by a ratable deduction on the amount of the sums awarded,
provided always that such deduction should not exceed the
rate of 5 per cent on the sums awarded, any deficiency to be
defrayed by the two governments in equal moieties. As to the
amount of the expenses, the convention provided that, while
each government should pay its own commissioner, the salary
of each commissioner should be the same and should not
exceed $3,000, or £G20, ayear; that the salary of the umpire
should be determined by mutual consent at the close of the
commission; and that the salary of the clerk should not exceed
$1,500, or £310, a year.
As frequently happens in such cases, the
Eztemioii o t e J^I^Q^J^t; of business that came before the coni-
""' mission was much larger than was anticipated.
From the 15th of September 1853 to the 12th of June 1854 the
commission held sixty-seven sessions, and on the latter day
"took into consideration the propriety of requesting from the
two governments an extension of the time originally assigned
for the termination of the commission, the better to enable them
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LONDON COMMISSION OF 1853. 407
to dispose of the very great and unanticipated amount of busi-
ness which had devolved upon them; and a letter was drawn
up by them to the American minister, and to her Majesty's
principal secretary of state for foreign affairs, recommending
the extension of the commission for four months." In conse-
quence of this representation, Mr. Marcy, Secretary of State,
and Mr. Crami>ton, British minister, concluded at Washington
on July 17, 1854, a convention extending the existence of the
commission for a period not exceeding four months from the
15th of the following September, should such extension be
deemed necessary by the commissioners, or by the umpire, in
case of their disagreement. But it was agreed that nothing
in the new convention should in anywise alter or extend the
time originally fixed for the presentation of the claims.
After June 12, 1854, the commission held
Com^l^n^ sixty-seven sessions more, making in all from
the day of its first meeting a hundred and
thirty- four sessions. Its last meeting was on January 15, 1855.
On that day the commissioners met with the umpire for the
consideration of claims remaining undisposed of. This purpose
was accomplished by the announcement of the umpire's deci-
sion in two cases. Directions were given for the collection of
all accounts and expenditures incurred during the sittings of
the commission, and for the completion of its records and pro-
ceedings. The joint report of the commissioners to each of the
two governments was then drawn up and signed, and the busi-
ness of the commission terminated.
The whole number of claims presented to the
Amerioan ciaixns. commission was 115. Of these, some of which
embraced numerous items, 75 were against the
United States and 40 against Great Britain. Of their gross
amount no computation was made, and none is possible from
the records, but it reached far into the millions. Of the Ameri-
can claims against Great Britain, 12 were allowed, 27 dismissed,
and 1 withdrawn. In the claims that were allowed, 2 of the
awards were by the commissioners and 10 by the umpire. Of
the 27 claims that were disallowed, 23 were dismissed by the
commissioners and 4 by the umpire. The total amount awarded
to American claimants was $329,734.16, or, at the rate of ex-
change established by the commissioners of $4.84 to the pound
sterling, £68,131 7Jd.
The grounds of dismissal, in the cases in which any were
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408 INTERNATIONAL ARBITRATIONS.
assigned, were various ; but, except in certain cases where the
umpire delivered opinions, they were stated in such manner as
to disclose nothing of the reasoning. Of the claims that were
allowed, two were for customs duties improjierly collected, in
one case at the Bay of Islands, in New Zealand, in 1840 and
1841, and in the other at Halifax in 1822. In the latter case
the vessel, which had put in merely on her way to a market,
was required to enter and pay duties, and was thus forced to
di8X)ose of her cargo at a loss. Three claims were allowed on
account of wrongful seizures of vessels on the charge of being
engaged in the slave trade; three for the wrongful seizure of
vessels engaged in the fisheries adj^icent to the coasts of British
North America; and one for the capture of an American ves-
sel by a British ship of war on March 5, 1815, when x)eace ex-
isted by the terms of the Treaty of Ghent at the place where
the seizure occurred. The three remaining cases in which
awards were made in favor of American claimants were those
of the brigs Creole and Unterprisej and the schooner Hermosa.
These belonged to a series of cases which at the time of their
occurrence produced 'much excitement in the United States,
especially in the South, and threatened serious international
complications.
In 1831 the American brig Cometj while on
Caw^of "Comet" and ^ voyage from Alexandria, then in the District
"Enoominm." ^^ Columbia, to New Orleans, with a cargo of
slaves, the property of American citizens, was wrecked on the
Bahama banks. The slaves were saved and carried to the
island of New Providence, where they were libeled for for-
feiture under the British acts prohibiting the slave trade.
The libel was dismissed by the court, but the governor on his
own authority declared the slaves to be free, and refused to
permit the owners to take them from the island. Mr. Van
Bnren, who was then minister to England, was instructed to
lay the case before the British Government, with a strong
expression of confidence that the action of the governor would
be disavowed. On February 25, 1832, Mr. Van Bnren pre-
sented the case to Lord Palmerston, and asked that the slaves
be ordered to be restored and that a reasonable indemnity be
paid for their detention. The case was referred to the law
ofScers for their opinion, but though often urged to do so the
British Government failed to reply to Mr. Van Bnren's note.
In February 1833 the American brig Uneamiumj while on a
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LONDON COMMISSION OF 1853. 409
voyage from Charleston to New Orleans, with 45 slaves on
board, was wrecked at nearly the same place as the Comet.
The slaves were saved and taken to Nassau, where they were
liberated by the police magistrate against the protest of the
United States consul. On the 2d of Aagust 1834 Mr. Vail,
who was then charge d'affaires of the (Jnited States in London,
was instructed by Mr. Forsyth, then Secretary of State, to
press for an answer to Mr. Van Buren's note in the case of the
Oomety and also to call attention to the case of the Encomium.
On the 11th of May 1835, no answer in these
Cam of the "Bnter- ©ases having been received, Mr. Vail renewed
"Be** *^ * * ^^ subject, and also presented the case of the
brig Enterprise^ which while on a voyage from
Alexandria to Charleston in 1835, with 73 slaves on board, was
driven from her course by stress of weather and compelled to
put into the port of Hamilton, in Bermuda, for provisions. On
her arrival there she was seized by the colonial authorities, but
was afterward released. The custon^s authorities however de-
tained the ship's papers, in order to learn the pleasure of the
governor, and in the mean time a writ of habeas corpus, issued
by the chief justice, was served on the master, requiring him to
produce Che slaves, who on disembarking were taken from his
custody and set at liberty. Mr. Vail, in bringing the occur-
rence to the notice of the British Government, said it was the
third case "of an American vessel, pursuing a voyage recog-
nized as lawful by the legislation of the United States, and by
all the principles of public law, forced, by act of God, to seek,
in a British port, a refuge from the tempest, relief from star-
vation for her crew and passengers, and that aid, protection,
and hospitality,'' which were due to the distressed mariner
and the property in his charge, and which were in these cases
denied. On November 13, 1835, Lord Palmerston stated that
it had been de<uded to refer the whole subject to the judicial
committee of the privy council. - In 1836 Mr. Stevenson, who
had become the diplomatic representative of the United States
in England, twice pressed for a decision, his second note
bearing date December 13. On the 7th of February 1837 the
Senate of the United States adopted a resolution, which was
offered by Mr. Calhoun, asking the President for the corresjwnd-
ence ^Mn relation to the outrage committed on our flag and the
rights of our citizens, by the authorities of Bermuda and New
Providence, in seizing slaves on board the brigs Encomium
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410 INTERNATIONAL ARBITKATIONS.
and Enterprise^ engaged in the coasting trade, bat which were
forced by shipwreck and stress of weather into the ports of
those islands." To this resolution the President replied on
the 13th of the same month, transmitting the correspondence.'
In 1840 the Senate adopted a resolution declaring that, where
a vessel on the high seas, in time of peace, engaged in a lawful
voyage, was forced by stress of weather or other unavoidable
circumstance into the port of a friendly power, the country
to which she belonged lost '^ none of the rights appertaining to
her on the high seas, either over the vessel or the personal
relations of those on board."
On the 19th of October 1840 the American schooner Hermosa,
bound from Richmond, Virginia, to New Orleans, with a cargo
of 38 slaves belonging to a citizen of the United States, was
wrecked on the key of Abaco. Wreckers came alongside and
took oil' the master and crew and the slaves, and against the
wishes of the master, who desired to go to a port in the United
States, proceeded to Nassau, where certain magistrates in uni-
form, who represented themselves as officers acting under the
orders of the civil and military authorities, and who were accom-
panied by armed soldiery, came out to the vessel, and taking
forcible possession of the slaves transported them in boats to
the shore, where after some judicial proceedings they were set
free, against the remonstrance of the master of the Hermosa
and of the American consul.
The excitement created by these incidents
CaMof the "Creole." culminated in the case of the brig Creole^ which
sailed from Hampton Roads for New Orleans on the 27th of
October 1841, having on board 135 slaves. On the night of
the 7th of November a portion of the slaves revolted, wounded
the master, chief mate, and two of the crew, and murdered one
of the passengers, and having secured possession of the vessel
ordered the mate, under pain of death, to steer for Nassau,
where the brig arrived on the 9th of November. At first the
governor, on the request of the United States consul, sent a
file of soldiers on board for the purpose of preventing the escape
of the slaves and securing the murderers. But soon afterward
he summoned the consul to attend him, and in the presence of
the council, who were then in session, announccil that they had
come to the conclusion (1) that the courts of law had no juris-
» 8. Ex. Doc. 174, 24 Cong. 2 ses8.
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LONDON COMMISSION OP 1853. 411
diction over the alleged ofienses^ (2) that^ as an iuformation
had been lodged before him charging that a murder had been
committed on the vessel on the high seas, it was expedient that
the charge should be investigated, and that any persons found
to be implicated should be detained at Nassau to await the
instructions of the British (ioverumeut; and (3) that, so soon as
the examination should be completed all persons on board tlie
vessel not implicated in the alleged offenses must be released
from further restraint. An examination was begun on the 9th
of November, but on the 10th it was i)ostponed till the I2th,
when without any explanation it was abruptly terminated. On
the morning of that da^'^ the consul received information that
an attempt would be made to liberate the slaves by force. The
Americans in port had determined to furnish the necessary aid
to send the Creole and negroes to New Orleans, and the officers
and crews of two other American vessels had united with her offi-
cers, men, and passeugers for that purpose ; but, in the presence
of a great concourse on shore, a large number of colored per-
sons armed with bludgeons went out in boats to the brig and
anchored near by, and some of the clubs were passed on to
the slaves. At this conjuncture the attorney-general, accom-
panied by other colonial officers, went on board. The slaves
ideutitied as implicated in the mutiny were sent ashore, and
the rest being called on deck were told by the attorney-gen-
eral that they were free and at liberty to go wherever tliey
pleased. Assisted by the magistrates, they were transported
to the shore and conducted to the superintendent of police, by
whom their names were registered. They were tlius forcibly
taken from the custody of the master and liberated.
In the cases of the Comet and Encomium^ which respec-
tively occurred in 1831 and February 1833, Oreat Britain in
the latter part of President Van Buren's administration paid an
indemnity of $116,179.62.^ But in the cases of the EnterpriHe,
Hermosa, and Creole^ which occurred after August 1, 1834, when
the act of Parliament of August 28, 1833,' for the abolition of
slavery in the British colonies took effect, the British Govern-
ment refused to acknowledge any liability on the ground that
the slaves on entering British jurisdiction became free. The
United States, on the other hand, maintained that if a vessel
• H. Ex. Doc. 242, 27 Cong. 2 seas. ; Act of Feb. 18, 1843, 5 Stata. at L.
601.
« 3 and 4 William IV. ch. 73.
Digitized by LjOOQIC
412 INTERNATIONAL ARBITRATIONS.
were driven by necessity to enter the port of another nation
the local law conid not operate so as to afifect existing rights
of property as between persons on board, or their personal
obligations or relations under the law of the country to which
the vessel belonged. In the case of the Creole this argument
was emphasized by the fact that the vessel was brought into
British jurisdiction by means of a crime against the law of the
flag. The case gave rise to animated discussions in the Brit-
ish Parliament as well as in the Congress of the United States,
and came near breaking up the negotiations between Mr.
Webster and Lord Ashburton in 1842.^ The decision of the
umpire sustained the position of the United States.
Of the 75 British claims against the United
Britiiii Claims. States, 19 were allowed, 52 dismissed, and 4
withdrawn. On the claims that were allowed,
9 awards were made by the commissioners and 10 by the
umpire. Of the claims that were dismissed, 43 were disal-
lowed by the commissioners and 9 by the umpire. The total
amount of the awards against the United States was
$277,102.88, or £57,252 13s. 4d.
In most of the British cases in which the commissioners
concurred, the grounds of their decisions, in allowing or re-
jecting claims, were not disclosed; but where the umpire was
required to decide, his opinions were almost always formally
stated. Some of these opinions, just as in the case of the
American claims, related to important cases and important
questions. Among these may be mentioned the Florida and
Texas bonds cases, the case of Alexander McLeod, whose ar-
rest and trial in New York in connection with the destruction
of the steamer Caroline had created serious complications,^ and
the case of the Messrs. Laurent, involving the question of
domicil as affecting the right to governmental intervention.
It has been seen that no claim << arising out
m^Betd*^*^ ^^ *^^ transaction of a date prior to December
24, 1814," was admissible under the conven-
tion. Beginning with this date as a starting point, the higli
contracting parties by Article V. of the convention engaged
iCurtis'B Life of Webster, II. 54, 99, 104, 119, 120-122; Benton's Thirty
Years' View, II. 409; PhilHmoie, International Law, IV. 14; Webster's
Works, VI. 303; Opinion o/ Legar^s At. Gen., 4 Op. 98; Br. and For. State
Papers (1841-42), XXX. 181; Wheaton, Revue Fran^aise et £trang^re, IX.
345; Calvo, Droit Int., 3d ed. II. 269; Abdy's Kent (1878), 149.
«Ciirti6'B Life of Webster, II. 53, 61, 62, 61, 69, 85.
Digitized by VjOOQ IC
LONDON COMMISSION OF 1853. 413
to consider the result of the commission ^^as a fall, perfect and
final settlement of every claim npon either government arising
ont of any transaction of a date prior to the exchange of the
ratifications of the present convention;'' and farther engaged
" that every such claim, whether or not the same may have been
presented to the notice of, made, preferred, or laid before the
said commission, shall, from and after the conclusion of the
proceedings of the said commission, be considered and treated
as finally settled, barred, and thenceforth inadmissible.'' The
result of these stipulations was that every claim against either
government, whether presented to the commission or no,
arising out of any transaction between December 24, 1814, and
July 26, 1853, was either settled and determined or rendered
inadmissible as a subject of future international action.
Among the claims submitted to the comrois-
^*^Lofd HetoOTL^*' ®^^" ^*® ^"® ^^ ^^^ ^^"' •^*™®^ Crooks, owner
of the schooner Lord Nelson. It appeared that
the Lord Nelson was on June 5, 1812, thirteen days before the
declaration of war by the United States against Great Britain,
seized on Lake Ontario by the United States brig Oneida for
an alleged breach of the embargo laws and taken to Sacketts
Harbor, where after war was declared she was condemned
and sold as a prize and the proceeds paid into court. After
peace, Mr. Crooks claimed his property as having been cap-
tured in time of peace, and the court in 1818 ordered the pro-
ceeds to be paid over to him, when it was found that the clerk
in whose custody the money was had absconded, leaving no
assets. The claimant sought to bring his demand within the
period covered by the convention by founding it, not on the
original seizure of the vessel, but on the failure of the United
States to make effective the judicial decree of 1818. The um-
pire held that the claim was not within the jurisdiction of the
commission, the transaction in which it originated having
taken place at a time not covered by the convention.^
The commission had jurisdiction of all claims
Prewntatum of Claim u^hich may have been presented to either
to^*oth«^*©- government for its interposition with theother "
between December 24, 1815, and the expiration
of the period prescribed by the convention for
the presentation of claims to the commissioners; and by one
of the standing rules of the commission it was declared that
^MSS.Dept. of state.
Digitized by LjOOQIC
414 INTERNATIONAL ARBITRATIONS.
claims " presented to the commissioners by the agents of either
government will be regarded as presented by their respective
governments, in accordance with the provisions of the conven-
tion." Under these provisions the commission exercised juris-
diction withont regard to the fact that the claim had or had
not been presented by one government to the other. In the
Texas bond cases the agent of the United States argued tliat
the claim was legally agaiust the State of Texas, and as such
was not intended by the two governments to come within the
jurisdiction of the commission; and as moral evidence in sup-
port of this contention he adverted to the fact, as also did the
American commissioner, that the claim had not been brought
to the notice of either government, or made a matter of corre-
spondence between them, or included in any list of unsettled
claims at the date of the convention, but was presented by the
claimants to the foreign office in London after the commission
met, and was transmitted by the foreign office to the British
agent. The cases were ultimately referred to the umpire, the
commissioners having differed on the various questions in-
volved. In the printed report of the proceedings the awards
of the umpire in these cases are not given; but it is stated
that he dismissed the claims on the ground '^that cases of this
description were not included among the unsettled claims that
had received the cognizance of the governments, or were de-
signed to be embraeed within the provisions of the conven-
tion."^ Had this language been used by the umpire it could
hardly have been construed, in direct opposition to the explicit
provisions of the convention, to mean that a claim must have
been presented by one government to the other in order to
bring it within the jurisdiction of the commission. But the
printed report of the umpire's decision in these cases is inac-
curate. His formal awards are on tile, and in the one case, that
of the Executors of James Holford, No. 14, British docket-, he
held that the claim could not be entertained, <4t being for
transactions with the Independent Republic of Texas, prior
to its admission as a State of the United States;" while in the
other, No. 15, British docket, he held that the claimants, the
Messrs. Dawson, of Baltimore, had "no right to claim before
this commission, being according to the law of nations citizens
> S. Ex. Doc. 103, 34 CoDg. 1 boss. pp. 396, 426.
Digitized by LjOOQIC
LONDON COMMISSION OF 1853. 415
of the United States and not British subjects," and that, »' were
they British subjects, the claim being for transiictions with
the Independent Republic of Texas, before it became a State
of the United States^ the claim cannot be entertained by this
commission."^ Jurisdiction was therefore exercised by the
commission in dismissing both cases on the merits.
In the case of William Crooks and others against Great
Britain, in which the claim first assumed an int<;mational
aspect when it was presented through the American agent to
the commission, it never having been the subject of diplomatic
action, it was held that though the case was, in respect of the
manner of its presentation, within the commission's cognizance,
it was, as a matter improper for international adjustment, out-
side of their jurisdiction, no instance having been found "of
the interference of government with the question of ordinary
heirship and succession of estates in other jurisdictions.'" In
other words, it was held that though a claim might, in respect of
the date of its origination and the time and manner of its pres-
entation, be clearly within the jurisdiction of the commission,
it might in its nature be an improper subject for diplomatic
action and therefore unlit for the consideration of an interna-
tional tribunal.
In the Florida bond cases, in which the claim was first made
against the United States when it was presented by the British
agent to the commission, the claim was decided on its merits
and dismissed.^
The total expenses of the commission, includ-
*^?* J* "*"'"" iug the salariers of the commissioners during
Bion*8 ExpensM. ^ ^
the time of actual session, were £2,588 16s. 6d.
The umpire refusing to receive any compensation, the com-
missioners left it to the two governments to say when their
salaries should commence and terminate, and what traveling
expenses, if any, should be allowed. By the civil and diplo-
matic appropriation bill of March 3, 1855, Congress granted to
the American (commissioner and agent each the sum of $12,000
for their services and expenses.*
> MS8. Dept. of state,
s S. Ex. Doc. 103, 34 Cong. 1 sess. 169.
3 S. Ex. Doc. 103, 34 Cong. 1 sess. 165.
-•S. Ex. Doc. 103, 34 Cong. 1 sess. 80-81.
Digitized by VjOOQ IC
416 INTERNATIONAL ARBITRATIONS.
The following is a list of claims before tlie
i/iaims Jioiore _
the<
to aims ore ^.QnjmiggjQn^ showing the subject and the final
disposition of each one:
American claim* on Great Britain,
1. U. L. Rogers & Brothers, for return of customs duties assessed in
the Bay of Islands, New Zealand, in 1840 and 1841. Presented October
21, 1853; heard November 28; further affidavits filed February 23, 1854;
further heard February 27, and submitted. On November 4 the commis-
sioners disagreed as to the amount to be allowed; on December 7 the
umpire awarded $7,676.96.
2. Schooner Fidelityj Thomas Tyson owner, for seizure of the vessel at
Sierra Leone on a charge of smuggling. Presented January 24, 1854 ; heard
March 23 and submitted. On October 11, it appearing that the vessel was
discharged after a brief detention and that there was probable cause for
the seizure, the claim was disallowed.
3. Bark Jones, P. J. Farnham & Co. owners, for seizure at St. Helena
on a charge of being concerned in the African slave trade and for assess-
ment of costs on the vessel at Sierra Leone and sale of vessel and cargo.
Presented October 31, 1853; further papers presented November 28; heard
March 17 and 18, 1854; further affidavits filed April 11 and May 15. April
22 the commissioners, being unable to agree, severally delivered their opin-
ions, which were placed on file, and the case was committed to the decision
of the umpire. On November 29 the umpire awarded to the owners of
the Jone$ the sum of $96,720, and to sundry persons for ventures of goods
therein as follows, viz : to James Gilbert, the master, $1,863 ; to Cbenezer
Symonds, the mate, $842; to F. Sexton, the supercargo, $1,200; amounting
in all to the sum of $100,625.
4. Brig Cyrue, Peter C. Dumas owner, for seizure and detention of the
vessel by the brig of war Alerty on a charge of being concerned in the
slave trade. Presented March 14, 1854 ; heard August 2 and submitted ;
November 25, disallowed.
5. Schooner John, Reuben Shapely owner, for capture of the vessel by
the British ship of war Talbot, March 5, 1815, after the close of the war,
when peace existed by the terms of the Treaty of Ghent in the latitude
where she was seized. Presented March 14, 1854; heard May 10, and sub-
mitted. November 4 the commissioners disagreed on the amount of dam-
ages, and it was referred to the umpire. November 29 the umpire awarded
the sum of $13,608.22.
6. Schooner Levin Lank, James Sullivan owner. This vessel was sold by
her master and lessee to foreign persons on the coast of Africa. She was
afterward seized and condemned at St. Helena for being concerned in the
slave trade. Claim was made for her before the commission by her orig-
inal owner. Presented March 14, 1854; heard August 16 and submitted;
November 25, disallowed.
7. Brigantine Volufiia, John W. Disney and John Graham owners, for her
seizure in 1850, by the British steamer Rattler, while on a voyage from Rio
de Janeiro, on a charge of being concerned iu the slave trade, and for her
condemnation for having false papers. Presented March 14, 1854 ; heard
July 5 and submitted; further papers filed by leave July 6. November 25
Digitized by LjOOQIC
LONDON COMMISSION OF 1853. 417
the oommissioners disagreed on the allowance of the claim, and it was
referred to the umpire, who heard it Noveniher 27, and on Decemher 1
disallowed it.
8. The Only San, Fuller & Delano owners, for compelling the vessel to
be entered at Halifax and to pay duties in 1822, when she had put in
on her way to a market merely, whereby she was compelled to di8X)08e of
her cargo there at a loss. Presented March 14, 1854. November 13 the
commissioners disagreed on the allowance of the claim, and it was referred
to the umpire, who on December 14 awarded the sum of $1,000.
9. Ship Amelia f Robert Roberts owner, for capture by a British cruiser
while on her way from Puerto Rico to Gmulaloupe, on the 11th of Feb-
ruary 1815, and for her subsequent condemnation. Presented June 1, 1854 ;
heard June 3, and submitted. October 11, it appearing that the date of
tho capture of the vessel was prior to the ratification of the Treaty of
Ghent, the claim was disallowed.
10. John McClure and others. Presented March 14, 1854 ; heard on ques-
tion of jurisdiction August 17, and submitted. Claim for slaves alleged
to be owned by citizens of the Unite<l States in Florida while that Terri-
tory belonged to Spain, and which escaped from Florida to Cumberland
Island, and were taken away by the British authorities at the close of the
war of 1815. September 26, disallowed on the ground of want of jurisdic-
tion, and of an adjustment under the convention of 1822.
11. James Young. Presented by leave June 3, 1854; heard and sub-
mitted. Claim for slaves captured on the high seas during the war of 1812,
taken to the West Indies, and there disposed of by the British authorities.
October 11, disallowed.
12. Brig Creole, Edward Lockett and others owners of slaves on board.
Presented March 14, 1854; further papers filed May 23; heard June 3,
and submitted; further claims to property on board presented by leave
June 10 and 14, 1854. Claim for liberating slaved on board the vessel
at the Bahama Islands. September 26, the commissioners disagreed as
to the allowance of the claim, and it was referred to the umpire. January
9 the umpire awarded the sum of $110,330.
13. Bark John J, Robb, for the removal of a sailor from the vessel by a
British cruiser on the coast of Africa. The right to enter the vessel for such
purpose was disavowed; but it appearing on the evidence submitted that
the sailor, who had had some controversy with his captain, left the vessel
ultimately with the master's consent, the claim was disallowed. Presented
March 14, 1854; heard July 15 and submitted; October 11, disallowed.
14. Maria Dolores, William Taggart and others owners, for proceeds of
the vessel and cargo captured by a Bolivian privateer and brought into the
Barba<los, where the vessel and cargo were sold by the British colonial
authorities. Presented March 14, 1854 ; heard August 9 and September 25
and submitted. Held not to be within the jurisdiction of the commissioners.
15. Brig Douglas, Amos Frazar owner, for seizure and detention of the
vessel on a charge of being engaged in the slave trade. Presented April 22,
1854; further papers filed May 13; heard July 21 and submitted; Novem-
ber 25 the commissioners awarded $600.
16. Schooner Caroline Knight, George W. Knight and others owners, for
capture and sale of the vessel at Prince Edward Island in 1852. Presented
5627 27
Digitized by LjOOQIC
418 INTERNATIONAL ARBITRATIONS.
February 2, 1854; heard July 12 and sulmiittcd; October 10 tho coniini8>
sioners awarded $1,887.60.
17. The yessela Tigris and Seamew, Messrs. Brookhouse & Hunt owners,
for damages for seizure of the vessels iu 1840 by the British cruiser Jf'ater
Witch on the coast of Africa, and sending them to America for trial for
violation of the laws of the United States. Presented March 14, 1854;
submitted on the papers. October 28 the commissioners disagreed on the
amount of damages to bo allowed, and the case was referred to the umpire,
who December 14 awarded $24,006.40.
18. Schooner Pallaa, Edward Haskell and others owners, for illegal
seizure of the vessel off Chittican Bay and its detention during the fishing
season. Presented March 14, 1854; heard July 15 and August 1 and Bub<
mitted. October 28 the claim was referred to the umpire ; January 15, 1855,
it w<is disallowed for want of evidence.
19. Schooner ArguSy Doughty, muster, for seizure of the vessel on St.
Ann's bank by the British revenue cruiser Syiph and her remdval to Syd-
ney, Cape Breton, where she was subsequently sold. Presented March 14;
1854; heard July 15 and August 1 and submitted; heard before tbe umpire
October 11 and submitted. December 23 the umpire awarded $2,000.
20. The Julius and Edward^ Charles Tyng owner. Vessel seized by a
British cruiser and taken to Bremen. No evidence submitted; claim dis-
missed.
21. Schooner Hero, James B. McConuel. For seizure and detention of
the vesstd by Her Majesty's brig Lynx off the coast of Africa. Presented
March 14, 1854; submitted on the papers; November 25 disallowed.
22. Brig Charlott^f Hart, Sands, and othiirs owners. For seixure of the
vessel under legal process by a British claimant on the coast of Ireland
and her subsequent release bv the court of admiralty without costs for
her detention. Presented March 14, 1854; beard July 21 and submitted.
Claim disallowed on the ground of its being a controversy lietween private
individuals, settled by a competent court within whose Jurisdiction the
property was.
23. Henry H. Schieffelin. In this case an American vessel was seized
prior to the war of 1812, but though restitution was ordered she was,
during the war, confiscated. Claim was made for failure to obtain judi-
cial re<lress after peace. Presented by leave June 10 ; heard August 17
and October 4; disallowed for want of jurisdiction.
24. Schooner Washington, For capture and condemnation of tbe vessel
at Halifax by t.he British authorities in 1818. Presented March 14, 1854;
disallowed January 13, 1855, for want of evidence.
25. The Joseph Coxoperthxoait, William J. Smith and others owners. For
search and detention of the vessel by the governor of Cape Coast Castle.
Presented March 14, 1854; heard July 21. No evidence submitted; dis-
missed.
26. Schooner Washington, For the capture and condemnation of the
vessel at Halifax in 1843 by the colonial authorities for taking fish in
the Bay of Fundy when more than three miles from the shore. Presents
March 14, 1854; heard July 15 and August 1; September 26 the commis-
sioners disagreed as to the construction of the convention of 1818 ; Decem-
ber 23, the umpire awarded $3,000.
. Zl* Schooner Direotor, For the capture of the vessel in 1840 by the Britiah
Digitized by LjOOQIC
LONDON COMMISSION OF 1853. 419
armed vessel John and Louisa Wallis, for an alleged violation of the fisheries
convention of 1818. Presented March 4, 1854 ; heard Jnly 15 and August
1 ; September 26 the commissioners disagreed as to the construction of the
convention of 1818; January 13 claim disallowed by the umpire for want
of evidence.
28. George W. Atwood. The claimant chartered a British vessel to take
passengers and freight from England to California. Controversies having
arisen between him and the captain and passengers, Atwood appealed for
aid to the British minister at Rio de Janeiro. After various difficulties the
matters in controversy were there settled by arbitrators mutually appointed.
Presented March 14, 1854 ; submitted on the papers. Claim disallowed.
29. William Cook and others. Claim for the proceeds of the personal
property and effects of Mrs. Frances Mary Shard, deceased, which pro-
ceeds the cl.iimants alleged had gone into the treasury of Her Majesty's
government. July 23 the commissioners dismissed the claim for want of
jurisdiction.
30. Brig EnterprizCj Joseph W. Neal and others. Claim for damages for
slaves liberated under the laws of Bermuda, whither the vessel was driven
by stress of weather. Presented March 14, 18.54 ; further papers filed June
19; heard May 23 and 24 and submitted; heard before the umpire October
19 and 21. December 23 the umpire awarded to the Augusta Insuran<'e
and Banking Company the sum of $16,000 and to the Charleston Marine
Insurance Company the sum of $33,000.
31. Schooner llermosa. Claim for the liberation of slaves on board.
January 11, 1855, the umpire awarded the Louisiana State Marine and Fire
Insurance Company $8,000 and the New Orleans Insurance Company $8,000.
32. The Brookline. Damages were claimed for the taking from the ves-
sel, in British waters, of a deserter from a British ship of war who was
secreted on board the Brookline. Presented June 9, 1854 ; further papers
filed June 19 ; heard June 29 and submitted. October 11 claim disallowed.
33. Brig Evelina, It was alleged that the British ship of war Winchester
ran afoul of the brig in the English Channel in 1833. Presented March
14, 1854 ; heard October 6 ; January 8, 1855, disallowed.
34. Brig Latcrence, Edward Yorke and others owners. The brig was
seized at Sierra Leone in 1848 and condemned on a charge of being con-
cerned in the slave trade. January 13, 1855, the claim was disallowed by
the umpire.
35. Duties on woolen goods, Charles Barry, William Frost, and others
agents. Claims for return of duties levied on woolen goods by the Brit-
ish Government beyond those paid by citizens of other nations, contrary
to the treaty between the United States and Great Britain of 1815. Janu-
ary 13, 1855, the agent of the claimants informed the commissioners that
lie had effected a settlement with the government and desired to with-
draw the claims. Claims withdrawn.
36. The Cicero. Seizure and detention for alleged violation of revenue
laws. Dismissed for want of evidence.
37. The Jubilee. Claim for salvage; no evidence submitted; claim dis-
missed.
38. The Robert. Not sustained ; dismissed.
39. The Elvira. No evidence; dismissed.
40. The Olive Branch. No evidence; dismissed.
Digitized by LjOOQ IC
420 INTERNATIONAL ARBITRATIONS.
BritUh claims on the Uniied States,
1. William McGlinohy. For the seizure and detention of papers and
pei'HOual property not subject to duties by the United States rev.enue oili-
cers on the river St. John in the year 1845. Presented December 3, 1853;
heard April 5, 1854, and submitted. April 5, evidence having been sub-
mitted of the return and acceptance of the articles seized, the claim w'a«
dismissed.
2. Thomas Rider. For losses in consequence of arrest and detention by
the military authorities of the United States at Matamoras during a period
uf five and a half months in 1846. Presented January 27, 1854 ; heard
February 27. The commissioners awarded $625.
4. The Joseph Albino, William Allen owner. For injury and detention
of the vessel at San Francisco on a charge of violating the revenue laws
of the United States. Disallowed.
4. The Frances and Eliza, Christopher Richardson owner. For the
seizure of the vessel at New Orleans in 1819 and sale under a judgment of
the United States district court, which was subsequently reversed by the
Supreme Court of the United States. Presentt^d December 30, 1853; heard
March 6 and 15 and submitted; reopened for the admission of further tes-
timony and again submitted May 13, 1854. October 2S the commissioners
ilisagreed on the amount of damages to be awarded and the case was
referred to the umpire. November 29 the umpire awarded $34,227.
5. Ship Albion, John Lidgett owner, for seizure of the vessel by United
States officers of revenue for nonpayment of customs duties, for cutting
timber in Oregon, and for trading with the natives in violation of acts of
Congress. Presented January 20, 1854; heard April 3 and May 13 and
submitted. October 28 the commissioners disagreed as to the allowance
of the claim. December 1 the umpire awarded $20,000.
6. Messrs. Loback ^ Co. For the seizure of logwood at Tabasco by
American seamen during the Mexican war. Disallowed.
7. Hudson's Bay Company. For exemption from taxes on live stock in
Oregon and repayment of duties collected thereon. Withdrawn.
8. Hudson's Bay Company. For seizure of the steamer Heaver in Decem-
ber, 1851, in Oregon, on a charge of having violated the United States
rovenue laws. October 28 the commissioners disagreed as to the allow-
ance of the claim and it was referred to the umpire. November 29 the
umpire awarded $1,000.
9. Hudson's Bay Company. For loss occasioned by the seizure of their
schooner Cadboro, Withdrawn.
10. Hudson's Bay Company. For obstruction by United States revenne
ofBcers of rights of transportation by their vessel, the Prince of Wales,
under the treaty of 1846. Presented March 13, 1854; heard July 2!»;
October 11 disallowed.
11. Maurice Evans <& Co. For return of duties assessed by overvalua-
tion of wines and porter imported into New York City during 1850 and
1851. Claim disallowed.
12. Joseph Wilson. For arrest and detention in Michigan on a charge of
exercising authority as a. British land officer on an island alleged to be
within the limits of that State, afterward found to be within firitiah
Digitized by LjOOQIC
LONDON COMMISSION OF 1853. 421
jurisdiction. Heard April 8; farther affidavits filed July 12. Claim
disallowed.
13. Piatt & Duncan. For retnm of moneys alleged to have been illegally
obtained on an adjustment of suits brought against them by the United
States collector at New York City in 1840, on the charge of having entered
goods with false invoices. Presented March 15, 1854; heard July 1 and
submitted; reopened November 1 and again submitted. November 13
claim disallowed.
14. The Executors of James Holford, and other claimants. For money
due on bonds which were issued by Texas prior to its admission into the
Union and for the payment of which the Texas duties were pledged.
November 29 the claim was disallowed by the umpire.
15. Philip Dawson and others. Circumstances the same as in the pre-
ceding case. November 29 the claim was disallowed by the umpire.
16. The Lord Nelson, James Crooks owner. The circumstances of the
claim are given supra, p. 413. Disallowed by the umpire December 14, 1854.
17. Alfred T. Wood. For arrest in New Brunswick and removal to
Maine for offenses said to have been committed in that State. Disallowed.
18. Samuel C. Johnson. For arrest and prosecution at New York on
a charge of violating the emigrant passenger act. Claim disallowed.
19. The Union, Robert HoU, master. For damages on account of the
capture of this vessel by the United States sloop of war Peacock after
peace had taken effect where the capture was made. Claim disallowed.
20. Great Western Steamship Company. For return of duties on coal
entered and stored at Boston and consumed on outward-bound voyages of
thvxT steamers, on which a drawback was claimed. December 1, 1854, the
commissioners disagreed as to the amount to be allowed; December 14
the umpire awarded $13,500.
21. Heneage W. Dering and others. For sums due on bonds issued by
the Territorial government of Florida. December 14 claim disallowed by
the umpire.
• 22. The James Mitchell, Francis Ashley and others owners. Claim for
damages for the illegal detention and sale of a vessel and cargo. The
commissioners disagreeing as to the amount of damages to be allowed, the
umpire awarded $20,000.
23. The Young Dixon, Samuel Moats owner, for excessive tonnage duties
charged on the vessel by the customs officers at Phila<lelphia. Disallowed.
24. Francis Watson and others, for lands granted them in New Bruns-
wick, but by adjustment and location of the boundary line afterward
included in the State of Maine. Disallowed.
25. The Irene, Riddell Kobson owner, for seizure and detention of the
ve.ssel for violation of the emigrant passenger act. Dismissed.
26. Miller & Mackintosh, for damages for the seizure of wines at San
Francisco in 1849 by United States revenue officers. December 14 the
commissioners awarded $6,000.
27. Brig Lady Shaw Stetcari, George Buckham owner, for the alleged
illegal seizure and sale of the vessel at San Francisco by the United States
authorities. Presented December 3, 1854 ; heard May 13 and 15 and sub-
mitted. October 28 the commissioners disagreed on the amount of damages
to be awarded, and November 29 the umpire awarded $6,000.
Digitized by LjOOQIC
422 INTERNATIONAL ARBITRATIONS.
28. Godfrey, Pattison & Co., for the repayment of duties levied on goods
beyond those paid by citizens of other nations contrary to the treaty of
1815. Presented March 13, 1854 ; further memorial presented by leave Jnno
15; heard June 29 and submitted. January 13, 1855, the oommissionerM
awarded $61,689.54.
29. Messrs. Baker &, Co., for expulsion from Tampico by the forces of
the United States. Presented March 13, 1854. Clnim dismissed.
30. Messrs. McCalmont, Greaves &, Co., for the return of duties levied by
the United States military authorities at Vera Cruz during the Mexican
war through alleged mistake in the American tariff. Presented December
30, 1853; hoard April 22 and 25, 18.54, and submitte<l. December 1 the com-
missioners disagreed on the allowanc^c of the claim, and it was referred to
the umpire. Heard before the umpire January 7, 1855. January 8 the
umpire awarded the sum of $11,733.58.
31. Messrs. Calmont & Co., for the seizure of goods belonging to them by
the Mexicans while such goods wore under convoy of the United States
forces. Presented December 7, 1853; heard and subniitte^l; disallowed.
Further claim, for return of duties paid on the goods. Presented Decem-
ber 3, 1853; heard May 18, 1854. December 1 the comuiissioners disagreed
and the claim was referred to the umpire. The umpire heard the claim
December 7, and on December 26 disallowed it.
32. Messrs. Cotesworth, Powell & Pryor, for lands granted them in
Texas while Texas was under the government of Mexico. Prt^sonted
March 13, 1854 ; hoard before the commissioners and umpire November 20.
November 25 disallowed.
33. Messrs. T. & B. Laurent, for the seizure and confiscation by Gen-
eral Scott of a debt alleged to be dne from the Messrs. Laurent to the
Mexican Government on a contract for the ]»urchaso of real estate. The
validity of the contract was denied by that government, and the estate
which the Messrs. Laurent claimed was denied by a judgment of the Mex-
ican ctmrts. Presented January 16, 1K>1; qnestion of jurisdiction raised
April 5; heard and submitted. September 26 the commissioners, being
unable to agree, severally delivered their opinions, which were placed on
file, and the case was committed to the decision of the umpire. December
20 claim disallowed by the umpire.
34. Brigantine Confidence, Claim for the running down of the vessel
by the Uuited States frigate Contsiitation in the Straits of Gibraltar Decem-
ber 1, 1850. Presented February 17, 1854; heard June 10 and snbmittexl;
further papers filed by leave June 19 and October 6. Referred by the com-
missioners to the umpire. January 13, 1855, the umpire awarded the sum
of $9,946.20.
35. Samuel Bradburj', for the return of moneys alleged to have been
illegally obtained by the collector of customs at New York iu compromise
of a suit brought on a charge of having entered goods with false invoices.
Presented March 15, 1854 ; heard .January 6, 1855, and submitted. January
13 claim disallowed.
36. Hudson's Bay Company, for drawback of duties paid on goods at
Astoria in 1852 and reexported to Fort Vancouver. Presented March 13,
1854; heard July 29 and submitted. October 11 the commissioners
awarded the sum of $1,523.68.
Digitized by LjOOQIC
LONDON COMMISSION OP 1853. 423
37. Hudson's Bay Company, for supplieis furnished American volunteers
raised in Oregon on the breaking out of hostilities with the Indians and
expenditures incurred in the rescue of captives from the Indians prior to
the organization of the Territorial government. Presented March 13, 1854 ;
heard July 29 and submitted. December 1 the commissioners awarded the
sum of $3,182.21.
38. George Hpughtou, for the return of specie alleged to have been taken
on board a private vessel captured by a United States vessel of war. Jan-
uary 2, 1855, the commissioners awarded the sum of $2,500.
39. The liarou lienfreto, Duncan Gibbs owner, for seizure and detention
of the vessel at San Francisco. Presented March 6, 1854 ; heard March 21
and submitted. October 28, the commissioners disagreecl as to the amount
to be awarded, and ou December 23 the umpire awarded $6,000.
40. Alexander McLeod, for damages occasioned by his arrest, detention,
and trial in New York on a charge of being concerned in the destruction
s^fthe steamer Caj'oline, Presented March 13, 1854 ; statement made by
McISN«^by consent, September 27; heard before the commissioners and
umpire Do^iaij^erll. January 2, 1855, the conimiHs loners disagreed as to
the allowance on^k«i4|^im, and ou January 15 it was disallowed by the
umpire. ^^***^
41. Charles Uhde, for the seizure and alleged confiscation of merchandise
by the United Statos forces in Matamoras during the year 1846. Presented
June 14, 1854; heard January 8, 1855. January 9, the commissioners dis-
agreed, and on January 15 the umpire awarded the sum of $2,500.
42. The Sir liohert /V/, Jonas Jones and others owners, for destruction
of the v('B8el in the river iSt. Lawrence iu 1838 by persons alleged to be
citizens of the United States. Presented March 13, 1854; submitted on
the papers for decision December 9. January 2, 1855, disallowed.
43. Messrs. Butterfield «& Brothers, for the repayment of certain duties.
No evidence submitted. Dismissed.
44. J. P. Oldfield & Co., for the repayment of duties levied on goods
beyond those paid by citizens of other nations, contrary to the treaty of
1815. Presented May 23, 1854 ; heard July 8 and submitted. January 13,
1855, the commissioners awarded the sum of $3,099.54 to Charles Tamer,
official assignee of J. P. Oldfield, of Manchester, in full of the claim.
45. Charles Ken worthy (George II. Taylor, agent), for return of moneys
alleged to be illegally detained by the collector of cu8t.oms at Now York
on a charge of entry of goods with false invoices. Presented March 1.5,
1854 ; heard November 1 and submitted. November 13 claim disallowed.
46. James Shaw (Geor«xe II. Taylor, agent), for return of duties, as iu
No. 45. Presented March 15, 1854; heard November 4 and submitted.
November 13 claim disallowed.
47. John Taylor, jr., by his executors, Francis Shaw and others, for
return of moneys allo^^ed to bo illegally obtained by the collector of cus-
toms at New York, as a compromise of a suit brought on a charge of having
entered goods with false invoices. Presented March 15, 1854; heard Jan-
uary 6, 1855, and submitted. January 13 claim disallowed.
48. Messrs. Kcrford &. Jeiikiu, merchants in Zaeatecas, Mexico. Claim
for detention by the United States forces of the caravan of Kerford &,
Jenkin, conveying goods to the interior of Mexico during the year 1846.
Digitized by VjOOQ IC
424 INTERNATIONAL ARBITRATIONS.
Presented December 1, 1853; qaestions of jurisdiction raised; heard April
6; beard also on tbe merits June 24; heard before the umpire on its merits
November 15. November 13 the commissioners disagreed on the allowance
of the claim and the case was referred to the umpire. January 10, 1855,
claim disallowed by the umpire.
49. Charles Green, for the seizure of certain hardware at San FYaucisc-o
by United States revenue officers. Presented March 13, 1854, and submit-
ted oil the papers. October 10 claim disallowed.
50. William Patterson, for injuries alleged to have been received at
Matamoras from the forces of the United States. Presented February 23,
1854; heard and submitted. October 11 claim disallowed.
51. John Potts, for losses occasioned by the closing of his mint in Mexico
by the forces of the United States. Presented January 13, 1854. Claim
disallowed.
52. Messrs. Glen & Co., for the seizure of wines and other spirits at San
Francisco. Presented March 13, 1854 ; submitted on papers. October 18
claim dismissed as bein^ in progress of settlement by the Secretary of the
United States Treasury.
53. P. B. Murphy, for return of duties on brandy levied Jit San Fran-
cisco. Presented Mnroh 13, 1854. Claim withdrawn, the duties having
been refunded by the collector.
54. Charles B. Hall, for the illegal seizure of goods at Cincinnati by
United States custom-house officers. Presented March 13, 1854. Claim
withdrawik.
55. The Mary Anne^ for loss arising out of infringement of the emigrant
passenger act. Presented March 13, 1854. Claim disallowed.
56. The ship Herald , for injuries received at Marseilles by the United
States flloop-of-war Erie, Presented March 13, 1854; submitted on the
papers. Claim dismissed.
57. Hon. W. Black, for lands in Now Brunswick included by location
and adj ustment of tbe boundary line within the Stiite of Maine. Presented
March 13; submitted on the papers May 26. Claim disallowed.
58. Lord Carteret. Claim for lands granted to his ancestors in North
and South ('arolina and to which he alleged himself to be entitled. Pre-
sented January 9, 1854, and submitted on the papers. Claim disallowed.
59. P^arl of Dartmouth. Claim for lands formerly granted to him sitn-
ated in East Florida. Presented January 10, 1854, and submitted on tbo
papers. Claim disallowed.
60. The representatives of Col. Klias Dunford. Claim for lands formerly
granted to him in Florida. Presented March 13, 1851 ; heard May 26 and
submitted on the papers. Claim disallowed.
61. James H. Rogers, for the recovery of lands in Florida. Presented
March 15, 1854, and submitted on the pax>ers. Claim disallowed.
62. Thomas Whyte, for the recovery of lands in Florida. Preaented
March 13, 1854; heard May 26 and submitted. Claim disallowed.
63. G. Rotchford Clarke, for the recovery of lands in Vermont, or the
value thereof, granted to his ancestors by the State of New York prior to
the admission of Vermont into the Union, and which were claimed to be»
reserved to the proprietors under provisions of treaty between the Unit*^!
States and Great Britain. Presented March 13, 1854; heard May 5 and <>
on question of jurisdiction and submitted. Claim disallowed.
Digitized by VjOOQ IC
LONDON COMMISSION OF 1853. 425
64. Bark Pearl, James Tindall et al. owners, for the seizure and con-
fiscation of the vessel at San Francisco for alleged breach of the United
States navigation laws. Presented March 13, 1854 ; heard May 18 and sub-
mitted. October 28 claim disallowed.
65. Duties on cotton goods, Charles Wirgman, agent. Claim for return
of duties levied on cotton goo<ls beyond those paid by other nations, in
contravention of the treaty of commerce of 1815. Presented March 15,
1854; heard July 8 and submitted. January 13, 1855, claims in favor of
various persons were severally allowed by the connnissioners, amoontiug
in all to $29, 760.14. Claim, for return of duties, as above, by John A.
Hobson and Andrew Taylor. January 13 the commissioners awarded to
John A. Hobson the sum of $42.58 and to Andrew Taylor the sum
of $170.76.
66. Claim for return of duties levied on cotton goods, as in No. 65,
Andrew Mitchell, agent. January 6, 1855, claims in favor of various per-
sons were severally allowed by the commissioners, amounting in all to
$20,602,65.
67. George and Samuel Shaw, for return of moneys alleged to be illegally
obtained by the collector of customs at New York in compromise of a suit
brought on a charge of having entered goods with false iuvoices. Pre-
sented March 15, 18.54; heard January 6, 1855, and submitted. January 13
claim disallowed.
68. William Broadbent, for return of moneys as above, in No. 67. Pre-
sented March 15, 1854 ; heard January 6, 1855, and submitted. January
13, 1855, claim disallowed by the umpire.
69. William Bottomley, by his executors, for return of moneys, as in
No. 67. Presented March 15, 1854 ; heard January 12, 1855, and submitted.
January 13 claim disallowed.
70. The CroaihwaitCf Messrs. Stuart & Simpson owners, for seizure of
the vessel at New Orleans. Presented March 13, 1854. Dismissed.
71. Shipowners' Society, for seizure of a vessel in 1854. Presented
March 13, 1854. Dismissed.
72. The DruQkenfield, Messrs. David Lyon & Co. owners, for return of
discriminating duties. Presented March 13, 1854. Dismissed.
73. The Science^ Messrs. Wilson &. McClelland owners, for return of
duties levied on the vessel during the year 1846. Presented March 13,
1854. 1 )ismi6sed.
74. The ProBperxtyy Messrs. Musgrave owners, for excess of duties
imposed on the vessel. Presented March 13, 1854. Dismissed.
75. Anglo-Mexican Mint Company, for loss caused by an order of the
United States prohibiting the exportation of gold from Mexico. Presented
March 13, 1854. Dismissed.
Digitized by LjOOQIC
on AFTER XIII.
RESERVED FISHERIES UNDER TEE RECIPROCITY
TREATY OF 1854.
By Article III. of the treaty of peace between
Treaty<rfl788; Con-jjjg United States and Great Britain of 1783
vennon oi 1818. •■ - i rr • ^
it was agreed tiiat the people of the Umted
States should continue to enjoy unmolested the "right" to
"take fish" on the Banks of Newfoundland, in the Gulf of St.
Lawrence, and at all other places in the sea where the inhab-
itants of both countries had been stccustomed to fish; that they
should have "liberty'' to "take fish" on the coasts of New-
foundland and of the other British dominions in America; and
that they should, subject to certain conditions, also have
"liberty" to "dry and cure fish" in any of "the unsettled bays,
harbors and creeks of Nova Scotia, Magdalen Islands, and
Labrador." After the war of 1812 the British Government
maintained that these " libeities," which consisted of certain
privileges to be exercised within British jurisdiction, had been
terminated by the war; and on October 20, 1818, a convention
was concluded by which the United States renounced forever,
except as to the Magdalen Islands, the southern coast of
Labrador, and part of the coast of Newfoundland, "any liberty
heretofore enjoyed or claimed * * * to take, dry, or cure
fish on, or within three marine miles of any of the coasts, bays,
creeks, or harbors of His Britannic Majesty's dominions in
America."
The history of these stipulations and of the
Bedprodty Treaty, controversies that arose concerning them is nar-
rated in the chapteron the Halifax commission.^
It suffices for our present purpose to say that on June 5, 1854,
William L. Marcy, as Secretary of State of the United States,
and Lord Elgin, as the special representative of Great Britain,
1 Chapter XVI.
426
Digitized by LjOOQIC
RESERVED FISHERIES. 427
signed a treaty by which all diflferences touching the convention
of 1818 were temporarily merged in a reciprocal arrangement
embracing commerce and navigation as well as the fisheries.
The fisheries were treated of in the first and second articles.
By these articles the American fishermen were readmitted, so
long as the treaty should last, to the inshore fisheries which
the convention of 1818 had renounced; and on the other hand
tlie British fishermen were admitted to the inshore fisheries on
the eastern coasts of the United States north of the thirty-sixth
parallel of north latitude. But in each case it was expressly
declared that the "liberty" thus granted applied "solely to the
sea fishery," and that the "salmon and shad fisheries, and all
fisheries in rivers and mouths of rivers," were "reserved" by
each country "exclusively" for its own fishermen.
The places thus reserved from the common
^^"^Z^l^^"^ liberty of fishing were not specified; and "in
order to prevent or settle any disputes" con-
cerning them it was agreed by the first article of the treaty
that each of the high contracting parties should, on the appli-
cation of either to the other, ai)point a commissioner, for the
purpose of deciding upon all such places as were "intended to
be reserved and excluded from the common liberty of fishing."
The commissioners were required, before proceeding to any
business, to make and subscribe a solemn declaration to i)er-
form this service "impartijilly and carefully," "to the best of
their Judgment, and according to justice and equity, without
fear, fiivor, or affection to their own country." They were also
required to name an umpire, and if they could not agree upon
any person for that office, to cast lots. It was provided that
the decisions of the commissioners and of the umpire should
be given in writing in each case, and be signed by them
respectively; and the contracting parties engaged "to con-
sider the decision of the commissioners conjointly, or of the
Arbitrator or Umpire, as the case may be, as absolutely final
and conclusive in each case decided upon by them or him
resi)ectively."
The commission was organized in 1855. The
^^."".'"^ 1- ,"" commissioners on the part of the United States
and Great Britain were, respectively, G. G.
Oushman, of Maine, and M. H. Perley, of New Brunswick.
Richard D. Cutts, of the United States Coast and Geodetic
Survey, served as United States surveyor, and George H,
Digitized by LjOOQ IC
428 INTERNATIONAL ARBITRATIONS.
Perley, of New Brunswick, as British surveyor. Messrs. Cusli-
mau and Cutts arrived at Halifax August 25, 1855. They
sailed with the British commissioner and British surveyor from
that port for the river Miraniichi, but, encountering head
winds, put into the Bay of Buctouche, and examined the Buc-
touche River. The British commissioner desired to mark the
river from Glover's Point to the sand bar. The American
commissioner objected to this line because (1) it included the
whole of Buctouche harbor, and (2) did not indicate the moatli
of any one of the three rivers or streams falling into that har-
bor. The American commissioner contended that the mouth
of a river "is that part or channel of a river by which its
waters are discharged into the ocean or into a lake." Where
a river empties into a bay, he maintained that the mouth coukl
not include any i)art of the ocean or bay properly so called.
From Buctouche harbor the commissioners went to the Bay of
Miramichi, where again they disagreed, holding different views
as to the mouth of the river of that name. They agreed to
make some examinations on the coast of the United States
before the end of the season, but fjiile<l to do so.*
May «H, 1856, Mr. Perley, the British coni-
BOftlOn of 1856. . ■■ . -rrr 1 • .-m
missioner, arrived in vV ashmgton, the purpose
of his visit being to formulate a plan of work for the coming
season. In the absence of Mr. Cushman he conferred with Mr.
Cutts, and on the 8th of May a plan was agreed on. It was
arranged that the commission should meet in Boston on the
27th of May, and proceed from that point to designate the
rivers lying between York River, in Maine, and Cape May,
New Jersey, devoting to that task the months of May, June,
October, and November. They agreed to devote July, August,
and September to the British coasts.
The commission met in Boston on the 31st of May, and on
the 2d of June Mr. Cushman presented a list of fifteen rivers in
Massachusetts and New Hampshire, viz: Piscataqua, Merri-
mack, I])swich, Saugus, Mystic and Charles, Neponset, North
Kiver, Weweantic, Mattapoisett, Acushnet, Pamanset, Acoak
set, Taunton, Warren, Seekonk. From June 6 to June 25 the
coasts were examined, and Mr. Cushman withdrew from time
to time the Saugus, Mystic and Charles, Neponset, North
Kiver, Mattapoisett, Acushnet, and Pamanset. From the
* Mr. Cuehman to Sec. of State, December 17, 1855. (MSS. Dept. of State.)
Digitized by LjOOQIC
RESERVED FISHERIES. 429
26th to the 30th of June the conimiHsioners, at the Tremont
House, in Bostou, marked the mouths of the rivers Piscataqua,
in New Hampshire; Taunton, Merrimack, and Ipswich, in
Massachusetts; and Seekouk, in Bhode Island.
After the marking of these rivers the British commissioner
l)re8ented a list of thirty rivers in Prince Edward Island.
During July the American commissioner examined the most
important parts of the island, and met the British commissioner
at Charlottetown. The latter desired to reexamine some of the
streams, and he also declined at that time to present any rivers
in New Brunswick or Nova Scotia. The commissioners met
again at Bangor on the 25th of September, and remained in ses-
sion for three days. The British commissioner added a few
more streams to his list for Prince Edward Island. The Amer-
ican comniissioiier would allow only the Dunk, Eliot, Montague,
and Morel. The first three were marked, but the fourth was
placed among the contested cases, owing to a difference as to
tlie proper line. Mr. Cushman officially declined to recognize
twenty four of the so-called rivers presented by Mr. Perley in
i*riijce Edward Island, maintaining that tbey were only sea
creeks or inlets. Owing to this disagreement nothing was done
in October and November.'
After the suspension of the commission's
etigna o an i^^i^^^.g^ j^ October 1850, seven months elapsed
in which nothing was heard from the British
commissioner, and the commission did not meet again till July
1 7, 1857, when it reassembled at Eastport, in Maine. The first
thing necessary to be done was to name an umpire. Mr. Cush-
man named the Hon. Bion Bradbury, of Maine, and Mr. Perley
the Hon. John Hamilton Gray, of New Brunswick. The com-
missioners were unable to agree on either, and on the 20th of
July the names were placed in separate envelopes and the col-
lector of the port at Eastport was called in to make tlie selec-
tion. The lot fell on Mr. Grr.y, who on July 22 at St. John,
New Brunswick, in the presence of the United States consul and
the mayor of the city, made and subscribed the declaration
requiredby the treaty. The commissioners referred to him their
differences as to the rivers Buctonche and Miramichi and as to
twenty-four places in Prince Edward Island.
<Mr. Ciishiiiaii to Mr. Marcy, Sec. of State^ November 13, 1856. (MSS.
Dept. of State.)
Digitized by LjOOQIC
430 INTERNATIONAL ARBITRATIONS.
While the commissioners were at Eastport
CommissioneTs' Work «^ -r>i xjii*j.i*^ ^••
^ j^gg^ Mr. Perley presented a list of twenty-six nvers
in New Brunswick. The Uu ited States commis-
sioner and surveyor spent the rest of July, the month of August,
and a part of September on the New Brunswick coast, and pre-
pared an argument for the umpire in the oases pending before
him. On the 3d of October the commission met at the Tremont
House, in Boston, and entered upon the discussion of the New
Brunswick rivers. Mr. Perley finally withdrew the Eel, Jacciuet^
Gaspereau, Upper Salmon, Mispeck, Popologan, Digdequash,
and Bocabec. The commissioners agreed on the limits of reser-
vation in thirteen cases, the Restigouche, Bathurst, Poke-
mouche, Tracadie, Tabisintac, Kouchibouguac, Bichibucto,
Sackville, Peticodiac, Shepody, Musquash, Le Preau, and Mag-
agaadavic. The reservation at Minudie River, in Nova Scotia,
was also determined. In three cases, the Gocagne, Shediac, and
St. tlohn, the commissioners were at the time unable to agree.
The last of the New Brunswick rivers, the Oaraquette, Bay of
Ohaleurs, was reserved at Mr. Perley's request.
Mr. Cushman on the 17th of October presented a list of
thirteen livers in Maine, but Mr. Perley was not ready to enter
upon the consideration of them. They were examined during
the mouth by Messrs. Cushman and Cutts.
Apart from the cases before the umpire, the work remainhig
to be done by the commission included the examination of the
coasts of Canada, Nova Scotia, part of Newfoundland, and of
the United States from the Providence River to the thirty-
sixth parallel of north latitude, and it was estimated that at
the past rate of progress the accomplishment of the task would
require three years more.* The consumption of time involved
in the personal examination of the coasts led Mr. Cushman to
propose the use of charts in place of the actual inspection of
all the places sought to be reserved.^ Mr. Perley however
declined to concur on the ground that "such a procedure
would be in direct contravention of the Reciprocity Treaty .'*'
> Mr. Cushman to Mr. Cass, See. of State, December 18, 1857. (MSS. Dept.
of State.)
« Mr. Cushman to Mr. Perley, February 11, 1858. (MSS. Dept. of State. )
3 Mr. Perley to Mr. Cushman, March 30, 1858. (MSS. Dept. of SUte.)
Article I. of the treaty provided: **Such commissioners shall proceed to
examine the coasts of the North American proyiuces and of the United.
States," etc.
Digitized by LjOOQIC
RESERVED FISHERIES. 431
Od the 17tli of April 1858 the commission-
^^^*Zr!lIr^** ers met again at the Tremont House, in Bos-
ton, where they received the umpire's awards,
which were dated at St. John, New Brunswick, the 8th of the
same mouth. In respect of the twenty-four places in Prince
Edward Island, eighteen of the awards were in favor of the
British claim and six in favor of the American ; and the awards
in respect of the mouths of the rivers Miramichi and Buctonche,
in New Brunswick, were in favor of the lines claimed by Her
Britannic Majesty's commissioner. With these results the com-
missioner and surveyor of the United States were greatly dis-
satisfied; and in a communication to Mr. Cass of February 15,
1859, Mr. Cutts attacked the decisionson the ground of " flagrant
partiality," and suggested to the Department of State "the pro-
priety of calling the attention of Her Majesty's government to
the extraordinary chjiraeter of the awards and document jmb-
lished by the um[)ire, with a view to have all or a portion of the
cases reconsidered and appealed to some neutral authority." *
Mr. Dallas, then minister of the United States at London, was
instructed to lay the matter before Earl Russell, who was also
informed that the American commissioner would be directed
to suspend any proceedings toward carrying the awards into
eft'ect until the pleasure of Iler Majesty's government on the
subject should be known.' Earl Eussell replied in a note to
Lord Lyons of March 22, 18(>0.* In this note he approved the
awards of the umpire and declined to reopen the (uises to which
they applied J but with regard to the appointment of another
umpire he said :
"With respect to the question of appointing another Arbi-
trator in any future cases of ditterence which may arise between
the Commissioners, your Lordship will state to (General Cass
that Her Majesty's Government sincerely desire that the pro-
ceedings of the commission should be conducted with harmony
and good feeling, and that in cases in which the Commissioners
nniy disagree it is indifferent to Her Majesty's Government
who is selected to arbitrate between them, provided he be a
gentleman of strict integrity, and with a sufficient acquaint-
ance of the subject to be brought before him.
> MSS. Dept. of state.
'^Mr. Appleton, AsaiHtaiit Sec. of State^ to Mr. Hubbard, November II,
1859. (MSS. Dept. of State.)
Digitized by LjOOQIC
432 INTERNATIONAL ARBITRATIONS.
^<It will be a difficult matter to find a gentleman, possessing
the requisite qualifications for such an office in a superior degree
to Mr. Gray; but in view of the clearly expressed desire of the
Government of the United States, and out of friendly consider-
ation for that Government, Her Majesty^s Government will not
object to authorize Mr. Perley in any cases of future dift'erence
with his American colleague, to proceed, in concert with that
colleague, to the selection of a fresh arbitrator.''
In coming to this conclusion it is not improbable that Earl
Russell was influenced by consideration of the circumstances
under which the umpire was appointed. The treaty, aft«r pro-
viding for the appointment and qualification of the commis-
sioners, said:
- ^^The commissioners shall name some third person to act as
an Arbitrator or Umpire in any case or cases on which they
may themselves differ in opinion. If they should not be able
to agree upon the name of such third person, they shall each
name a person, and it shall be determined by lot which of the
two persons so named shall be the Arbitrator or Umpire in
cases of difference or disagreement between the Commissioners.
The person so to be chosen to be Arbitrator or Umpire shall,
before proceeding to act as such in any case, make and sub-
scribe a solemn declaration in a form similar to that which
shall already have been made and subscribed by the Commis-
sioners, which shall be entered on the record of their proceed-
ings. In the event of the death, absence, or incapacity of
either of the Commissioners, or of the Arbitrator or Umpire,
or of their or his omitting, declining, or ceasing to act as such
Commissioner, Arbitrator, or Umpire, another and different
person shall be ajjpointed or named as aforesaid to act as such
Commissioner, Arbitrator or umpire, in the place and stead
of the person so originally appointed or nametl as aforesaid,
and shall make and subscribe such declaration as aforesaid."
It would not be unreasonable to construe this provision as
authorizing the appointment of one umpire to determine all
cases of difference as they should arise. Nevertheless the
commissioners seem in the first instance to have acted on a
different construction of it. On June 19, 1857, Lord Napier
informed the Department of State that Mr. Perley, the British
commissioner, had nominated Mr. Gray as umpire. This nomi-
nation was made without consultation with Mr. Cushman, the
American commissioner, who seems to have contemplated the
selection of " some neutral authority; '' and when the commis-
sioners met at Eastport in July they chose an umpire in the
manner which has already been described.^ But before casting
' Mr. Cutts to Mr. Cass, Sec. of State, February 15, 1859. (MSS. Dept. of
state.)
Digitized by LjOOQIC
BESEBYED FISHEBIES. 433
lots tbe commissioners, according to Mr. Cashman's statement,
agreed ''that the umpire then to be selected shoald be ap-
pointed only for such cases of disagreement as had occurred
up to that date; that the appointment of the umpire then to
be selected should terminate on delivering his awards; and
that in any future case or cases of disagreement there should
be another and other determinations by lot for the choice of an
umpire." ^ Mr. Perley's version of the understanding, which,
like that of Mr. Gushman, was given immediately after the
delivery of the umpire's awards, was that it was " verbally
agreed" that "the cases then in difference should be referred
to the decision of the umpire then to be chosen," and that when
those were decided the commissioners " should, if so minded,
proceed to select another umpire, to whom further cases of dif-
ference should be referred." He said, however, that his atten-
tion had " since been drawn to the fact " that the cx)mmissioner8
'' were not competent under the treaty to make or carry out
such an agreement," and that they could not ''dismiss the
present umpire, or name another, except in the event of his
death, absence or incapacity, or his omitting, declining or
ceasing to act as such umpire."* Mr. Gushman declared that
the agreement was unqualified, and that he should insist on its
being carried into effect, and of this intention he formally noti-
fied both the British commissioner and the umpire.^ Under
these circumstances it was manifestly conducive to the har-
monious execution of the treaty to permit a new umpire to be
chosen, whatever may have been the views of either govern-
ment as to the true construction of the treaty.
The argument submitted by Mr. Gushman
ViewBof Unitedstates ^o the umpire bore date August 17, 1857.
^Bi^^r*"*' ^^^^ maintained that the twenty-four places
in Prince Edward Island claimed by the
British commissioner as rivers were either bays, harbors, or
creeks, and as such not intended to be reserved from the
common liberty of fishing. In support of this contention
it was argued (1) that in every case of doubt the treaty was
to be construed so as to secure the greatest possible liberty
of fishing and avoid misunderstandings; (2) that to treat
» Mr. Gushman to Mr. Perley, April 18, 1858. (MSS. Dept. of State.)
•Mr. Perley to Mr. Cuahman, April 19, 1858. (MSS. Dept. of State.)
»Mr. Gushman to Mr. Perley, April 26, 1858; same to Mr. Gray, April 27,
1858. (MSS. Dept. of State.)
5627 ^28
Digitized by LjOOQIC
434 INTERNATIONAL ARBITRATIONS,
brooks and inlets as rivers would require the marking of over
250 lines and lead to coufusiou; (3) that no imaginary fear
of smugglers or of competition by reason of fishermen enter-
ing the body of a county could avail as an argument for a
stringent operation of the granting terms, since no such fear
was entertained by the negotiators when they opened the
bays, harbors, and creeks to the fishermen of both countries.
As to the particular cases of disagreement, Mr. Gushman
quoted the description of Prince Edward Island given by
Captain (afterward Admiral) Bayfield in his sailing directions
for the Gulf of St. Lawrence, in which it was stated that the
island '4s 102 miles long, and in one part about 30 miles
broad, but the breadth is rendered extremely irregular by
large bays, inlets, and rivers, or rather sea-creeks, which pane,
trate the island so that no part of it is distant more than
7 or 8 miles from navigable water.'' It was contended that
the bodies of water claimed in this island by the British com-
missioner were chiefly salt creeks. A river, said Mr. Cush-
man, was in geographical science '*an inland current of fresh
water, formed by the confluence of brooks, small streams or
mountain torrents, flowing in a bed, and discharging into
some other river or lake, or into a bay, a gulf or the ocean.''
He maintained that the use of the word " creek " to denote a
small river was contrary to English usage and inadmissible in
geographical science, and that the word, as used in the conven-
tion of 1818 and the^ reciprocity treaty, signified " every inlet or
part of the sea, more or less extensive and navigable, and into
which no stream larger than a brook discharges." Prince
Edward Island, ^' long and narrow, intersected in all directions
by deep indentations of the sea, and with low laud at its eastern
and western extremity and along the coast," was, said Mr.
Gushman, characterized by '' the excessive number of bays,
harbors and creeks;" the extent of the country drained, the
irregularity of its form, and its generally level character for-
bade "the formation, or even the idea, of riversj" its "fresh
water streams," consequently, were "mere small brooks," oiteu
falling into a long, broad, deep creek or inlet of the sea, or into
a bay. In the twenty-four disputed cases the fresh-water
streams ranged from "1 to 6 miles in length, and from 15 feet
in depth to 3 inches deep to the smallest possible flow of
water;" and it was upon the existence of these "brooks,''
"dignified with the names of rivers," that a claim "to large
Digitized by LjOOQIC
RESERVED FISHERIEa 435
and navigable bodies of salt water" had been preferred.
Captain Bayfield bad called these bodies of water ''sea-creeks"
or " tide inlets," and had described them as having ''brooks,"
"small streams," or an "insignificant quantity of water at
their heads." Sir Charles A. Fitzroy, lieutenant-governor of
the island, in an official communication to the British Govern-
juent, referred to them as " strictly speaking narrow arms of
the sea." * Lord Glenelg, in his reply, alluded to them as " in-
lets of the sea."'- The term sea-fishery was, said Mr. Cush-
man, introduced into the reciprocity treaty for the purpose of
distinguishingriver or fresh- water fisheries, such as the salmon
and shad, from salt-water fisheries, and not for the purpose of
designating localities and confining fishermen to the deep sea.
The "coasts, creeks, bays and harbors "were opened to the
fishermen of both countries.
The umpire on the other hand held that it was not " the
absence or prevalence of fresh or salt water," nor "the height
or lowness of the banks," nor "the rise or fall of the tide, or
the fact there may be a little, if any, water when the tide is
out," that made a river; that an "important test" of a river
was the existence of a bar at the mouth of the stream, imply-
ing a conflict of forces and an effort of interior waters to force
their way out; that there were cases again where an estuary
gradually widened into the sea, leaving neither bar nor delta
to mark its outlet or determine its character; that the decision
on any such question must after all be more or less arbitrary,
and depend more or less on "the physical features of the sur-
rounding country, the impressions created by local inspection,
the recognized and admitted character the disputed i)laces
have always borne." The "rivers" of Prince Edward Island
must, said the umpire, necessarily .be small. But if weight
was to be given to official expressions, it would be found that
there was a long list of acts of the colonial legislature distin-
guishing the waters of the island as "rivers," "bays," "har-
bors," and "lesser streams," and establishing rights and
creating interests in them " entirely inconsistent with their
being aught but the internal waters and rivers of the island,
and directly at variance with the terms and character of legis-
lation which would have been used had they been considered
'arms' or mere 'inlets of the sea.'" The umpire also quoted
^Appendix D, Journal of Legislative Council, 1839.
« Ibid.
Digitized by LjOOQIC
436 INTERNATIONAL ABBITEATIONS.
from a letter from Admiral Bayfield explaining his use of the
term " sea-creeks."
Without quoting ftirther ft*om the awards of the umpire, it
is evident that the fundamental difference between his view
and that of Mr. Gushman was that the latter maintained that tLe
term "river" should be construed in the geographical sense of
an '^inland stream of fresh water" of some considerable mag-
nitude, while the umpire, relying upon other circumstances,
and largely upon the terms used in acts of local legislation,
construed the term as including what Mr. Gushman described as
" inland currents of salt water." Questions were also raised
by Mr. Gutts as to the consistency of the awards with one
another, but as the awards are herewith printed in full it is
unnecessary to enter into this subject.
As to the Hiver Miramichi, a special argument was submit-
ted by the American commissioner to the umpire. In this case
it was admitted that the stream was a river, but the commis-
sioners differed as to the line which should mark its mouth,
and it was upon this difference that the umpire was required
to decide. The line claimed by the United States was not at
the termination of the purely fresh-water stream, but twenty-
four miles lower down, where, at the mouth of " a long estuary
of brackish and finally salt water," the fresh water was ** en-
tirely lost in and absorbed by the sea." The British claim
and the decision of the umpire may be found in the latter's
awards. Mr. Gutts contended that the decision disregarded
the topography of the place, the opinion of Gaptain Bayfield,
and public acts and grants, to which great weight has been
given in other cases.^
After Earl Bussell's answer touching the
Progrew o minis- ^jj^pjj.^ qj^^ j^ig awards was received, the com-
S10XL8 Work. . , '
missioners proceeded to agree upon and mark
the mouths of the streams in Prince Edward Island which bad
been held to be rivers. Meanwhile, however, they had been
acting upon other places as to which they had not differed.
On April 19, 1858, Mr. Perley presented a list of twenty-two
rivers in Ganada to be examined. In May the River St. Croix
^ Mr. Cutts referred to the Revised Statutes of New Branswiok, I. ch. 1,
pp. 16, 17, 44. He quoted Captain Bayfield as saying: ''The Miramichi
river may be said to commence at Sheldrake Island; for below that point
the Inner Bay, with its low and widely receding shores, bears no i^oem-
blance to a river.''
Digitized by LjOOQIC
RESERVED FISHERIES. 437
was inspected, and from the 2d to the 7tli of June the commis-
sioners^ in session at Portland, agreed on all the Maine rivers.
On the 12th of June Mr. Perley submitted a list of seventy-
two rivers in Nova Scotia and Cape Breton.
On July 1, 1858, Mr. Cushman, who had re-
changMofCommi*. g|g^^^ ^^^ succeeded by Benjamin Wiggin
as commissioner.^ Mr. Wiggin spent July and
part of August in examining rivers in the United States.
From the 7th to the 12th of November he examined the rivers
flowing into Long Island Sound, and on the 13th of November
he met Mr. Perley at the St. Nicholas Hotel, in New York City.
During this session they agreed on all the rivers in Nova
Scotia. Nothing was done as to the rivers in Cape Breton.
Four Connecticut rivers were marked.
On March 9, 1859, John Hubbard was appointed United
States commissioner in place of Mr. Wiggin, resigned. The
coast of the United States from the St. Croix to the Hudson
had now been examined and the rivers marked, but nothing
had been done south of New York. In the British provinces
the rivers of New Brunswick and Nova Scotia had been marked
and those in Prince Edward Island examined, while the rivers
of Cape Breton, Canada, and Newfoundland yet remained to
be inspected. Owing to the continued suspension of the um-
pire cases, the commissioners were at this time unable to agree
on a plan of joint operations, and decided to proceed sepa-
rately. Mr. Hubbard examined the coasts of the United States
as far as the Susquehanna, and then proceeded to Cape Breton.
He also examined the river St. Lawrence. In November he
met Mr. Perley in Philadelphia.^ During the year 1860 Mr.
Hubbard reviewed the St. Lawrence and certain rivers along
the northern gulf coast of Canada from Mount Joly to Point
de >f onts, and also circumnavigated Newfoundland, and hav-
ing c;ompleted his field work he invited the British commis-
sioner to fix a time for deciding upon all places not already
marked. The commissioners met in Boston on the 15tli of
November. "We agreed and decided upon," says Mr. Hub
bard, *^all places that remained undetermined in Her Majesty's
Provinces, including the river St. Lawrence, and excepting
• Mr. Cnshman in a report of July 2, 1858, stated that the expenditures
of the commission during the three preceding years had been $26,999.29.
2 Mr. Hubbard to Mr. Cass, Sec. of State, December 10, 1859. (MSS.
Dept. of State.)
Digitized by LjOOQIC
438 INTERNATIONAL ARBITRATIONS.
only those of Newfoundland and those lying on the northern
Gulf coast of Canada between Mt. Joly and the western ex-
tremity of Anticosti. On the United States coast but one
was marked, the Hudson, making in all 45 rivers marked and
finally disposed of this year. Her Majesty^s commissioner re-
quires further time to bring his examinations up to ours."'
In March 1861 Mr. Hubbard was succeeded as commissioner
by E. L. Hamlin.
On the 12th of August 1862 Mr. Perley died, and his place
was not filled till the following year, when Joseph Howe, of
Nova Scotia, was appointed to succeed him.
This change caused much delay, since Mr.
aoMof Commisaicm'8 p^^^j^^ ^^ ^^^^^ ^ ^^^^^ ^^^j ^^ g^j^ ^^^^ ^^
which his successor could not, under the cir-
cumstances, avail himself. But when the treaty was termi
nated in 1866, all the delimitation had been completed except
on a small section of the southern coast of Newfoundland and
a section of the coast of Virginia.
After the commission had, by reason of the
Beport of Mr. Gatts. termination of the treaty, ceased to exist,
Mr. Cutts made the following general report
of its proceedings:
" Washington Oity, D. C, March 3Ut, 1866.
<' Hon. Wm. H. Seward, Secretary of State.
"Sir: I have the honor to submit the following £:eneral
Report of the proceedings and results of the Joint Fishery Com-
mission, appointed under the 1st Article of the Eeciprocity
Treaty between the United States and Great Britain, firam the
date of its organization in 1855, to the termination of the
Treaty, March 17th, 1866.
"DUTIES OF THE COMMISSIONERS.
" I. Each to subscribe a solemn declaration that ho would
impartially, &c., examine and decide upon all such places as
were intended to be excluded from the common liberty of
fishuig.
" II. To examine the coasts embraced within the provisions
of the Treaty.
"III. To decide upon what ^placcft^ were to be considere^l
as * Itivers' and intended to be reserved; and when any such
' Mr. Hubbard to Mr. Cass, Sec. of State, December 8, 1860. Mr. Porley
had not uxamined Newfoundland nor the coast of the Unit>ed States south
of the Hudson. There was a part of Canada also of which he had not
completed the examination. (Ibid.)
Digitized by LjOOQIC
REBEBVED FI8HERtES.
439
place shall be decided to be a river, to designate its extent,
or mark the seaward limits of its mouth.
'^ IV. To agree apon, or determine by lot, an Arbitrator or
Umpire to decide in any case or cases on which the Commis-
sioners may differ in opinion.
" V. To keep a record of the decisions of the Commissioners
and of the Umpire, each to be in writing, and to be signed by
them respectively.
"I.
" Under the 3d paragraph of the 1st Article, G. G. Oashman,
Esq., was api)ointed Commissioner on the part of the United
States, and Moses H. Perley, Esq., on the part of Great Britain.
^< The following memoranda will show their respective terms
of service, and of their successors in office.
** U, S, Commicsioner and Declaration.
Kamo.
G. G. CnBhTnan, Maine
lietO. Wicgin, Maine. .
John Ilubnard, Maine
£. L. Hamlin, Maine . .
Date of
Commisaion.
1855, Mar. 3
1858, June 22
1859, Mar. 9
1801, Mar. U
Date of
Declaration.
1855,Jalvl6
1858, Nov. 15
1859, May IL
1861, Mar. 28
Date
when service
ceased.
1858, Jnly 1
1859, March 4
1861. March 22
1866, March 31
' British Commissioner and Declaration,
M. H. Perlev, New Branswick
Jod. Ho wo, rf ova Scotia
1862, Aug. 12
1866.
" Dnring the entire periocl, Kichard D. Cutts, Esq., of Wash-
ington, served as the U. S. Surveyor, and George H. Perley
of New Brunswick, as the British Surveyor, attached to the
Commission.
"WHAT COASTS WERE AND WERE NOT TO BE EXAMINED.
" Under the 1st, 2d, and 6th Articles of the Treaty, the Oom-
raissioners were directed to examine the eastern coasts of the
United States, north of the 3Gth parallel of north latitude; and
the coasts of Canada, New Brunswick, Nova Scotia, Prince
Edward Island, and of the Island of Newfoundland, so far as
applicable, or, in other words, JiU the coasts of the British North
American Colonies which were not included within the provi-
sions of the 1st Article of the Convention of 1818.
"The first step, therefore, was to declare the exact limits of
the coasts defined in the Convention, with a view to tlieir exclu-
sion from the jurisdiction of the Commission. An additional
reason, if any was necessary, for such strict discrimination,
was the fact that our rights of fishery, on the coasts referred
Digitized by
Google
440 INTERNATIONAL ARBITRATIONS.
to in the Convention, were not only perfect, bnt were secared
'forever.'
''Upon examination, it was ascertained tbat, since 1818, the
eastern boundary of Canada had been extended from Katasb-
quan Pt. or Mt. loli, to auce au Sablon ; and that consequently,
the Canada of the Treaty included a section of the coast cov-
ered by the Convention. Notwithstanding this fact, the above-
mentioned section of the Canada coast and all of Labrador, as
well as the coast of Newfoundland extending from the Eameau
Islands to Cape Kay, and thence, along the western side, to
the Quirpon Islands, were carefully withdrawn by us from any
ofticial action on the part of the Commission. This course, so
plain and imperative, would not require to be even alluded to,
were it not that H. M. Commissioner had presented certain
rivers on those coasts to be marked, and had devoted a portion
of his time to their examination, altho' promptly and repeat-
edly notified that we should decline, as we did decline, to rec-
ognize any 'place' which he might oflFer to be reserved on the
coasts defined in the Convention of 1818.
"THE CSARACTBR AND EXTENT OF THE EXAMINATION TO
BE MADE.
"During the first season's operations in 1865, the field work,
under the guidance of H. M. Commissioner, was confined to an
actual survey of the River Buctouche, and to the examination
of the Miramichi, in New Brunswick. From the comparatively
slight progress made during that season, and from the desul-
tory character of the proceedings, it was clearly perceived that
to examine, in detail, 55(X) miles of coast, and to make a new
survey and chart of each of the 'places' which might be desig-
nated by either Commissioner to be reserved, wonld require
an amount of time, labor and expenditure, not authorized by
the temporary character of the Treaty, and, in no respect,
necessary for a strict and thorough performance of the duties
assigned to the Commission. Hence, on the arrival of H. M.
Commissioner at Washington, in May, 1856, the IJ. S. Sur-
veyor, with the approbation of the Department of State, pre-
sented to him a plan, introducing economy in the field work,
and order and system in the proceedings and expenditures of
the Commission.
"It was stated that the Provincial coasts had been carefully
surveyed by competent officers under the direction of the Brit-
ish Board of Admiralty ; that similar surveys had been made of
a large extent of the coast of the United States by the oflQcers
engaged in the survey of the coa^st, under the authority of
Congress 5 and that full and elaborate charts had been pub-
lished by our respective Governments. In view of these facts,
it was urged that in any case where the Commission x)oS8essed
an official chart of the 'river and its mouth,' no special resur-
vey was necessary. To this II. M. Commissioner agreed.
"It was also urged that the Commissioners should adopt, as
Digitized by V^OOQlC
RESERVED FISHERIES. 441
official, the charts of Bayfield aud of the Survey of the Coast;
should designate and mark thereon the reservations upon
which they could agree; and should visit such localities only
in regard to which there was a doubt, or a difference of opinion,
as to the character or extent of the * place.' While discussing
this proposition, in the presence of Mr. Marcy and Mr. Cramp-
ton, U. M. Commissioner gave to it a partial assent, but soon
afterwards declared that he considered it to be his duty to
make a personal examination of every locality which was, or
might be, intended to be reserved, and to this decision, he and
his successor adhered throughout.
"On our part, while we have made a general examination of
the coasts embraced within the provisions of the Treaty, and
a particular examination of such localities concerning which
special information was desired, we have, as a rule, depended
upon the official (charts, and, consequently, were prepared, years
ago, to close the business of the Commission.
"The additional proposal that the CommJlssiou should keep,
in duplicate, an official Journal of all its meetings and adjourn-
ments, proceedings, minor agreements and other matters inci-
dental to the main duty assigned to it by the Treaty, was not
accepted. It was, therefore, necessary to accomplish the same
object by means of official correspondence, reports, &c, two
volumes of which will accompany this Report.
"III.
"THE TERMS USED IN THE TREATY, THEIR DEFINITION AND
APPLICATION.
"As the Treaty declared that *bays,' harbors and 'creeks'
should be free, and that only * rivers and the mouths of rivers'
be reserved, it was advisable, at the very outset, to doflne the
precise meaning of these terms, in order that a * creek' might
not be reserved under the name of a 'river,' or a *bay,' as its
* mouth.' With this view, the terms, 'bays, creeks and rivers'
were interpreted in strict accordan(ie with the definitions given
to them by Geographical Science, and each body of water was
decided to be one or the other, on its own merits, irrespective
of the name found on the chart, or of the designation which
might be claimed for it by H. M. Commissioner.
"Numerous examples of what we believed to be a misappli-
cation of the t«rms and intention of the Treaty, occurred dur-
ing the different meetings of the Commission. In one instsince,
II. M. Commissioner presented 24 places on the little Island of
Prince Edward to be reserved as ' rivers.' In our opinion, they
were ^creeks.' He also offered the Bay of Bras d'Or, in the
Island of Cape Breton, to be excluded from the common lib-
erty of fishing, as tlie 'mouth' of various rivers. This claim
was so clearly unreasonable that we declined even to entertain
it. Somewhat similar claims were presented on other parts of
the Provincial coasts which, from one cause or another, were
afterwards withdrawn by II. M. Commissioner.
Digitized by VjOOQ IC
442 INTERNATIONAL ARBITRATIONS.
** It may be added that while thus resisting all attempts to
curtail the liberty secured to American fishermen on the coasts
of the Colonies, we applied uo principle or definition which we
did not apply to our own coasts, in favor of British fishermen.
"IV.
"THE UMPIRE AND HIS AWARDS.
"In consequence of the disagreements, above referred to,
between the two Commissioners, an Umpire was chosen, by
lor, July 20, 1857, with a previous understanding, however,
that a new Umpire should be agreed upon, or chosen, in case
of any future difference of opinion.
" The Umpire chosen was the Hon. John H. Gray of New
Brunswick, and to him were referred the 24 * places' on the
Island of Prince Edward, asserted by the British Commis-
sioner to be < rivers,' and, by us, to be inlets of the sea, or
'creeks;' and also the disagreements in regiUTd to the sea-
ward limits of the mouths of the Eivers Buctouche and Mira-
michi, in New Brunswick. At the same time, the U, S. Com-
missioner forwarded to the Umpire a communication in which
were given, in each case, 'the reasons upon which his own
decision had been based.
"The Umpire delivered his awards. May, 1858, at which date
his duties and term of office ceased.
"In six cases, the Umpire decided in favor of the United
States, and in all others, in favor of British fishermen. (See
Appendix No. 1.)
"These awards were not satisfactory, not so much from the
interests involved or their loss, as from their flagrant partiality,
taken in connection with the fact that the Umpire claimed to
be a permanent member of the Commission which, if by any
contingency should be allowed, would give him the decision in
other fore-shadowed cases of disagreement, in which the fish-
ermen of the United States were largely and deeply interested.
"A full report on the subject of the awards was made by the
U. S. Surveyor, in which the attention of the Department of
State was drawn to the above facts, with the suggestion that
the charge of flagrant partiality should be referred to the Brit-
ish Government for its friendly consideration. This course
was a])proved and adopted by the Department, and the result
was all that was expected or desired. The British Govern-
ment, while denying the partiality of the awards and claiming:
that they should be final and conclusive in accordance with
the provision in the Treaty to that effect, declared that it was
not averse to the appointment of another Umpire, should a
farther disagreement arise.
" In consequence of the firm attitude taken in these early
cases, the British Commissioner withdrew the claims he ha«l
advanced as to the mouths of the Rivers Shediac, Cocague and
Digitized by LjOOQIC
RESERVED FISHERIES. 443
St. John; gave up his intention of asserting that the mouth of
the Iliver St. Lawrence terminated at the Island of Anticosti ;
and, in fact, adopted a more just construction of the conces-
sions made to the fishermen of the United States.
"Y.
"RECORDS OF THE COMMISSION.
"In compliance Avith the 5th paragraph of
Rt^ccmiBookNo. I. the Ist Articlc, a record, in duplicate, was
kept of the decisions of the Commissioners, in
ea<*.h case, and signed by them respectively. In this book were
also recorded and subscribed the declarations made by the
Commissioners and the Umpire, before proceeding to any busi-
ness, as prescribed by the Treaty. The records are numbered
from 1 to 56 inclusive, and reference is made, in each, to the
corresponding and appropriate chart in Record Book, No. 2.
"The original copy of the awards of the Umpire, signed by
him, is already on file in the Department of State.
"No. 2 is a portfolio, containing 58 separate
Record Book No. 2. charts cousecutivcly numbered, and each sign-
ed by the Commissioners and Surveyors. They
show the lines which desigiiate the extent of the reservations,
according to the description given of them in the different
decisions, and therein referred to.
"These charts are, with few exceptions, of a most reliable
character, and, as previously stated, were adopted with a view
to save the labor and expense which would have attended new
surveys and detailed examinations by the Commission.
" Tliere are two original charts, one of the coasts of the
British North American Colonies, and the other of the coasts
of the United States, north of the SOth parallel, showing, at a
glance, the places reserved from the common liberty of fishing.
The reservations are marked in blue. The coasts are laid down
with great care and according to the latest surveys and deter-
minations of latitude and longitude, and in case the Treaty
had been continued, it was intended to suggest to the Depart-
ment the propriety of publishing the charts, on a reduced
scale, as well as the oificial records, and of directing that the
master of every vessel engaged in the fisheries, should provide
himself, before his clearance is granted, with copies of said
charts and descrijjtions. They would inform him where he
could fish and where he could not, and would also serve for '
the purpose of navigation.
" These two volumes contain copies of the cor-
(:orrcyipondeiic«s voi8. respondcncc and reports, and of other pai>ers
connected with the duties of the Commission.
"The following table will give the date and character of the
official reports, heretofore submitted to the Department. They
afford full information in regard to the meetings, proceedings
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444
INTERNATIONAL ARBITRATIONS.
and field operations of the ComnussiOn, and of the delays, at
different periods, in the transaction of its business.
Date of Report
1855, Doc. 17th.
1856. Nov.l3tli.
1856, May 7tb..
1856, Auk. 24...
1857, Dor. 18th.
1858, May 25th.
1858, June 3*1..
1859, Feb. 15th.
1859. Apr. 22a..
18.59, July 25th.
1859, Nov. 1st..
1859, Dec. 10th.
1860, Dec. 8th..
1861, Dec. 3lHt..
1863, Jan. iHt...
1864, Jan
1864, Dec. 17th
1865, Fob. 6th..
1866, Mar. 31 Ht
1866, Mar. 3lst.
Report —
By whom made.
Of operations from Aug., 1855, to date
Of operations from Dec, 1855, to date, including ■
Plan for system in proceedings, Ace of CommisMion..;
On the characU'r of the Prince Kdward Island rivers.
Of operations from Nov. 13. 1856 to dato
In recard to terra of serrioe ot Umpire !
Relative to the marking of the middle of St. Cn>ix. .1
On the awards of Umpire &, their partiality 1
Resume of the past proceedings of tlie Coiiim'n
On the liritish claim to the Bras d'Or
Of John Uulibard approving of U. S. Surveyor's
rt?port on the awards of Umpire.
Of oi)erations dnrlng preceding year
( )f operations during preceding year
Of operations during preceding year
Of operations d uring ]ireceding year
Of operations during preceding Vear
To Department on progress of the work
Of operations during preceding year
Of operations during preceding year ,
.\ general, stAtisticJii report of the proceedings and
result« of the Commission.
G. G. Cnshman.
G. G. Cushman.
Richd. D. Cutts.
Richd. D. Cutts.
(jr. Cr. Cushman.
G. G. Cushman.
G. G. Cushman.
Richd. D. Cutts.
Richd. D. Cutts.
Richd. D. Cut t«.
John Hubbard.
John Hnbbanl.
John Hubbard.
£. L. Hamlin.
£. L. Hamlin.
£. L. Hamlin.
Richd. D. CutU.
£. L. Hamlin.
£. L. Hamlin.
Richd. D. Cutts.
ii
BESUI.TS.
"The number of ^places' presented for examination on the
Provincial coasts amounted to 1(57, and on the coasts of the
United States, to 54.
'^Of these 221 places, 105 were reserved and excluded from
the common liberty of fishing under the terms of 'rivers, and
the mouths of rivers,' and the remainder were withdrawn by
the respective Commissioners, as either not coming within the
intention of the Treaty, or the jurisdiction of the Commission.
"The following table will show the number of places exam-
ined and of rivers and their mouths where boundaries were
determined, in each Province and State.
" For further details, reference is respectfully made to Appen-
dix No. 2, which will be found to be an Index, giving the name
of each river reserved, the number of the record and page of
the decision and by whom made, and also the number of the
chart, or plan, on which the boundary line is drawn.
Provin<"« or State.
Cjuiada
Island of Prince Kdward.
Kewfonndland
Kew Brunswick
Nova Scotia
Maine
Now Hampshire
Mnssachns('tt«
Rtiudo iHhmd
(jonnooticut
New York
Delaware
Marvland
Virginia
Number of
places ex-
amined.
221
Numl>er of
rivers
reserved.
IG
19
3
19
21
5
1
3
2
3
1
1
11
0
105
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RESERVED FISHERIES. 445
''From an examination of the official charts and Records of
the Commission, it will be ascertained that the intention of the
Treaty to reserve only 'rivers, and the mouths of rivers' has
been, with a few unimportant exceptions, strictly and fairly
carried out by the Commissioners.
"THE RIVER ST. LAWRENCE.
"Of all the questions which arose, the most important was
the determination of the mouth of the Eiver St. Lawrence.
During the discussion relating to the northeastern boundary,
Great Britain had indirectly claimed that the mouth of that
river was between Cape Kozier and the Mingan Islands; and,
until very lately, the Gazetteers and Charts assigned to it the
same extended limit. The British Commissioner under the
Reciprocity Treaty made claim to the same line, which, if
granted, would have excruded the fishermen of the United
States from a body of water larger than the Bays of Chaleur,
Fundy, Delaware and Chesapeake put together. To meet this
pretension, an argument was prepared, after a thorough inves-
tigation of the case, based upon the extent of country drained
by the inland current of fresh water; the amount of the dis-
charge and its efifects; the tides, freshets, currents, depth and
specific gravity of the water between the mouth of the Sague-
nay and the Island of Anticosti, showing that the mouth of the
Ittver St. Lawrence terminated at Pt. de Monts. The area
embraced between the two lines respectively claimed by the
United States and Great Britain, contained over 10,000 square
miles of deep sea, valuable for its fisheries.
"It was finally decided by the Commissioners that the mouth
of the river was at Pt. de Monts, and, consequently, that all
that body of water lying between Pt. de Monts and the Island
of Anticosti, constituted the northwest arm of the Gulf.
"WORK LEFT UNFINISHED.
"At the last meeting of the Commission, H. M. Commis-
sioner was unprepared to designate the places intended to be
reserved on a short section of the southern coast of Newfound-
land, or to mark the mouths of the Rivers Potomac, Kappahan
nock, York, and James, in the State of Virginia. At all other
points, the duty assigned to the Commission had been per-
formed.
"CAUSES OF THE DELAY.
"Among these may be mentioned the extreme view, taken
by H. M. Commissioner, of his duty under the Treaty to make
an examination in person of each 'place' intended, or having
any pretension to be reserved, without regard to the full and
reliable charts in our possession ; the death of Mr. Perley in
1862, and the time lost before his successor was appointed ; the
examination by H. M. Commissioner of coasts not embraced
within the provisions of the Treaty; and others of minor im-
portance^ alluded to in the different Reports.
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Uii
JNTEBNATIONAL ARBITRATIONS.
"Tbelleports submitted to the Department, from time to
time, will show the persistent efforts made, on our part, to hasten
and to close the business of the Commission, and the success
or failure which attended them, in each instance.
"EXPENDITURES.
"The expenses of the Commission have been comparatively
light. The U. S. Surveyor availed himself of the information
acquired previous to his appointment and while engaged in
the survey of the coast of the United States; and such expendi-
tures only were made by the U. S. Commissioner, on the
Provincial coasts, as were strictly demanded for the just and
intelligent performance of his duties. Indeed, for some years
back, no expenditures have been incurred beyond those barely
necessary for the existence of the Commission.
"I have the honor to be, very respectfully, your obdt. Ser't
"KiCHD. D. CUTTS,
" U. 8. Surveyor f &c.
"Appendix No. 1.
" Cases referred to an I7mpiref and hia decisions.
•• PLACES IN PR1:NCE EDWARD ISLAND.
Places.
Seal .
Vcmon .
Orwell .
Claim of the
British (^omniiHsioDcr.
Claim of the TTnited . „„^i , - tt™,.;-^
States Commi«8ioiier. ^^»"^ «^ Umpire.
Pinnette do .
To be "rivers," aod to Tobesoa '* creeks, "and
be reserved for the ex- | to bo open to the com-
clnsive use of British J mon liberty of fishing,
fishermen.
do ' do
do ' do
Murray.
.do.
Cardiffan do .
Bougnton do .
Fortune do .
SourCs do .
Tryon I do .
"Winter | do .
Hunter do .
Stanley do .
Ellis do.
Foxley do .
Pierre Jacq MOM do .
Peroival do .
Enmore do.
Ilaldiman do .
St. Peters do .
Crapaud .
Brae
Ox
Sable....
-do.
.do .
.do .
.do.
.do.
.do.
.do.
.do.
.do.
.do.
.do.
.do.
-do.
.do.
.do.
.do.
.do.
-do.
-do .
.do.
.do.
.do.
.do.
.do.
.do .
In favor of Great
Britain.
Do.
Do.
In favor of the
CTnited States.
In favor of Great
Britain.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
In favor of lh«-
United Stat4«.
Do.
Do.
Do.
Do.
Buctouche River
Miramichi River.
' PLACES IN 2S"EW BRUNSWICK.
Includes Buctouche
Harbor.
Includes tho inner Bay
of Miramichi.
I
Does not include Buc-
touche Harbor.
Does not include the in-
ner Bay.
In faTor of Great
Britain.
Do.
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reserved fisheries.
"Appendix No. 2.
447
*Iiivers and their mouths^ reserved from the common right of fishing thereiu,
under the Ut and 2d Articlea of the Treaty,
"BRITISH NORTH AMERICAN rJOLONIES.
Colony or State.
Name of River.
Canada
Do
Do
Do
Do
Do
Do
Do ;
Do
Do '
Do I
Do... I
Do '
Do I
A nticosti Islaud
Do
Prince Edward Is-
land.
Do
Do
Do
Do
Do
Do
Do
Do
Do
Do
Do
Do
Do
Do
Do
Do
Do I
Do
Newfoandland I
Do
l>o
New Brunswick
Do
Do
Do
Do
Do
Do
Do
Do
Do
Do
Do
Do
Do I
Do
Do
Do I
Do
Do I
Nova Scotia i
Do I
Do 1
Do I
St. LawTonce
Moiaic
St. John
Minigau
Chatte
St. Anne
Mt. Louis
Magdalen
Dartmouth
York
St. John-Qasp6
Grand
Bonaventnre
Grand Cascapediac. . .
Jnpiter
Fox...
Dunk.
Eliot.
Montague .
Vemou - . .
Cardigan .
Fortune .
Soaris .
Tryon .
Wmter .
Hunter .
Stanley .
Ellis....
Pierre Jacq ues . .
Percival
Enmore
Haldiman
Murray
BoQgb'ton
Foxley
Exploits
Gambo
Terra Nueva
Ristigouche
Bathurst
Caraquetto
Pocniouche
Tracadie
Tabiaiutac
Miramichi
Konchibouguac .
Richibacto
BnctOQche
Cocagne
Shediac ,
Sackville
Poticodiac
Shopody
St. John
Musquash
Leprean
Magagoadavic.
Phillip ,
Pugwash
Wallace
Pictou ,
Record Book-
No. 1.
_' ^^'^' I I>ocidedby-
^o-«i| Pago. !N?«M
record. | *» " plan. |
39
47
40
CoiuniisMiunors
40
48 '
41
Do.
41
50
42
1)0.
41
50
42
Do.
40
48
. 41
Do.
40
48 1
41
Do.
40
48
41
Do.
40
49 '
41
Do.
48
52 1
44
Do.
43
52
44
Do.
43
52
44
Do.
44
53 ,
8
Do.
44
53
8
Do.
44
53 1
8
Do.
41
50 1
42
Do.
42
51
-!:{
Do.
8
10
7
Do.
9
11 1
7 i
Do.
10
^2 ,
7 '
Do.
29
35 1
7 1
Unipiro.
29
35 ,
7 1
Do.
29
35 ,
7
Do.
29
:j5 1
7 ;
l>o.
29
36 ,
< 1
Do.
29
36 '
Do.
29
36 1
7
Do.
29
36
<
I>o.
29
36 1
7 I
Do.
29
36 ,
/
Do.
29
36 '
7
Do.
29
37 1
7
Do.
29
37
7
Do.
30
38 ,
31
Do.
31
3ft '
32
Do.
32
40 ,
33
Do.
&5
70
57
('oinniiHsioiiertt
56
71 1
58
Do.
56
71 ,
58
Do.
14
16
8
Do.
14
16 1
8
Do.
44
53 '
8
Do.
14
16
8
Do.
14
16 1
8
Do.
14
16 '
8
Do.
2
4 1
2
TiTipire.
14
16 ,
9
CoiuiiiisHioiierH
14
16 1
0
Do.
1
3 1
1
riiipiro.
45
55
45
CoaiiniM.>5ioiiei-s
45
55 \
46
Do.
14
17 1
10
Do.
14
16 '
10
Do.
14
17 1
10 1
Do.
45
55
47
Do.
14
17 1
11
Do.
14
17 1
11 1
Do.
14
17 ,
11 1
Do.
24
29
26 !
Do.
24
29 1
26 1
Do.
23
28
25 1
Do.
22
27
24 1
Do.
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448
INTERNATIONAL ARBITEATIONS.
*** liivem and their mouthn' rencrved from the common right offishimjihtmu,
under the let and i^d Articlee of the Treaty — Continued.
•'JJRITISH NOllTH AMERICAN COLONIES-Coutiuned.
Name of River.
Record Book-
Colony or Stato.
No. 1. 1 No. 2.
Decided by-
No. of
record.
Page.
No. of
plan.
Xova Scotia
St. Mary
21 26
20 , 25
20 1 25
19 94
23
22
22
21
20
20
19
19
19
19
10
34
35
35
Do
Gold
Do
Do
LeUave
Do
Do
LiiveriKtol
Do
Do
l.'nsliet
13
18
17
17
17
17
14
33
34
34
35
36
37
23
23
22
22
22
22
17
41
42
42
43
Do
Do
Sisibou
Do
Do
Com wallis
Do
Do
Ayod . . .....
Do
Do
Shubcnacadie
Do
Do
Salmon
Do.
Do
Minudie
Do.
Ctipe Breton iHland.
Do
Sydney
Do.
Mir6. .....:
Do
Do
Grand
Do.
Do
Des Habitana
Do
Do
Mabom
Mar|f uorite
44 1 37
45 . 38
Do
Do
Do.
•UNITED STATES.
Maine
Do
Do
Do
Do
New Hainpsbire
Mu8sacbuat;lt^
Do
Do
Ubode Island
Do
Connecticut
Do
Do
Now York
Delaware and New
Jersey.
Maryland
I)o
Do
Do
Do •....
Do
Do
Do
Do
Do
Do
Name of River.
Union
Machias
Penobscot . . .
Kennebec
Saco
PJHcataqua . .
Merrimac
Ipswich
Tannton
l*rovidence . .
Pawcatuck - .
Thames
Connecticut .
Housatouic . .
Hudson
Delaware....
Susquehanna
North East . .
Elk
Sassafras
Patapsco
Chester
Severn
Choptank —
Patnxent
Nanticoke —
Pocomoke —
Record Book-
No. 1.
No. of
recortl.
27
28
38
54
46
46
46
46
47
48
49
50
61
52
53 '
Paije.
I No.2 j
1 No. of ;
plan.
Deckled by-
20
20
20 I
20 I
20
5 ,
6
7
8
9
30
31
32
33
46
69
61
61
61
61
62
63
64
65
66
67
68
17 (
Commissioners.
18 1
Dow
17 1
Do.
16 1
Do.
15
Do.
3 1
Do.
4 '
I>o.
^ 1
I>o.
6 '
Do.
« 1
Do.
27
Do.
28
Do.
29
Do.
30 !
l>o.
39
l>o.
56 '
I>o.
1
I>o.
48 1
I>o.
48
Do.
48
Oo.
48
l>o.
49
I>o.
50
I>o.
51
13o.
52 '
I>o.
53 1
I>o.
54 ,
I>o.
55 '
I>o.
"It. 1>. c
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KESEKVED FISHERIES. 449
The awards of the umpire, which, as has
Awarf^"* ' be^n said, were dated at St. John, New Bruns-
wick, April 8, 1858, were as follows:
" By tbe 3rd Article of the Treaty of 1783 between Great Britain and the
United States it was stipulated, 'That the people of the United States
should continue to enjoy unmolested the right to take fish of every kind
on the Grand Bank, and on all the other Banks of Newfoundland ; also in
the Gulph of Saint Lawrence, and at all other places in the sea where
the inhabitants of both countries used at any time theretofore to fish.
That the inhabitants of the United States shall have liberty to take fish
of every kind on such part of the coast of Newfoundland as British fisher-
men shall use (but not to cure or dry them on the island) and also on the
coasts, bays and creeks of all His Majesty's dominions in America. And
that the American fishermen shall have liberty to dry and cure fish in any
of the unsettled bays, harbours and creeks in Nova Scotia, Magdalen Islands
and Labrador, so long as the same shall remain unsettled : but so soon as
the same or either of them shall be settled, it shall not be lawful for the
said fishermen to dry or cure fish at such settlement, without a previous
agreement for that purpose, with the inhabitants, proprietors, or possess-
ors of the ground.' The War of 1814 between Great Britain and the
United States, was held by the former to have abrogated this stipulation,
and the declaration of peace, and Treaty of Ghent, which subsequently
followed, were entirely silent on the point. This silence was intentional —
during the negotiations the question had been expressly raised, and the
claim of the United States to the continued enjoyment of the rights se-
cured by that stipulation denied. By the Convention of the 20th October
1818, the privilege of the Fisheries within certain limits was again conceded
to the United States — and the United States by that Convention 'renounced
any liberty before enjoyed or claimed by them, or their inhabitants, to take,
dry or cure fish, on or within three marine miles of any of the coasts, bays,
creeks, or harbours of any of the British dominions of America, not included
within that part of the Southern Coaat of Newfoundland extending from
Cape Ray to tbe Kameau Islands; on the Western and Northern Coast of
Newfoundland, from Cape Ray to the Quirpon Islands — on the shores of
the Magdalen Islands— and also on the coasts, bays, harbours, and creeks,
from Mount Jolly on the South of Labrador, to and through the Straits of
Bellisle, and thence Northerly along the Coast.' This concession was to
be without prejudice to any of the exclusive rights of the Hudson Bay
Company, and the American Fishermen were also to have the liberty, for-
ever, to dry and cure fish in any of the unsettled bays, harbours, and
creeks of the Southern part of the Coast of Newfoundland therein de-
scribed, and of the Coast of Labrador, but so soon as the same or any
portion thereof should be settled, it should not be lawful for the said Fish-
ermen to dry or cure fish at such portion so settled without previous
agreement for such purpose with the inhabitants, proprietors or possessors
of the ground; and was further subject to a proviso, that the American
Fishermen should be permitted to enter the bays and harbours in His
Britannic Majesty's dominions in America, not included within those limits,
'for the purpose of shelter, and of repairing damages therein, of purchas-
ing wood and of obtaining water, and for no other purpose whatever.
5627 29
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450 INTERNATIONAL ARBITBATIONS.
But they should be under such r(;striotions as might be necessary to pre-
vent their taking, drying or curing fish therein, or in any other manner
whatever abusing tlie privileges thereby reserved to them.'
''A difterence arose between the two countries, Great Britain contending
that the prescribed limits of 'three murine miles/ the line of exclusion,
should be measured from headland to headland, while the United States
Qovernmont contended it should be measured from the interior of the bays
and the sinuosities of the coasts. The mutual enforcement of these posi-
tions led to further misunderstandings between the two countries.
"To do away with the causes of these uiisunderstan dings, and to remove
all grounds of future embroilment, by the Treaty of Washington, June
5th 1854, it was by Article Ist agreed : — ' That in addition to the liberty
secured to the United States Fishermen by the abovementioned Convention
of October 20th 1818, of taking, curing and drying fish on certain coasts of
the British North American Colonies therein defined, the inhabitants of the
United States shall have, in common with the subjects of Her Britannic
Majesty, the liberty to take fish of every kind, (except shell fish,) on the
sea coasts and shores, and in the bays, harbours and creeks of Canada,
New Brunswick, Nova Scotia, Prince Edward Island, and of the several
Islands thereunto adjacent, without being restricted to any distance from
the shore, with permission to land upon the coasts and shores of those
Colonies, and the Islands thereof, and also upou the Magdalen Islands, for
the purpose of drying their nets and curing their fish; provided that in so
doing, they do not interfere with the rights of private property, or with
British Fishermen in the peaceable use of any parts of the said Coast,
in their occupancy for the same purpose.
'' ' It Is understood that the above mentioned liberty applies solely t^ the
Sea Fishery, and that the Salmon aud Shad Fisheries, and all Fisheries in
Rivers, and the mouths of Rivers, are hereby reserved exclusively for
British Fishermen.'
"By Article the 2nd:—
"'It is agreed by the high contracting parties, that British subjects
shall have, in common with the citizens of the United States, the liberty
to take fish of every kind, (except shell fish,) on the Eastern sea coasts
and shores of the United States, North of the 36th parallel of North Lati-
tude, and on the shores of the several Islands thereunto adjacent, and in
the bays, harbours aud creeks of the said sea coasts, and shores of the
said United States, and of the said Islands, without being restricted to
any distance from the shore, with permission to land upou the said coasts
of the United States, and of the Inlands aforesaid, for the ])urpose of dry-
ing their nets and curing their fish: provided that in so doing they do not
interfere with the rights of private property, or with the Fishermen of the
United States in the peaceable use of any part of the said coasts in their
occupancy for the same purpose.
"'It is understood that the above mentioned liberty applies solely to
the Sea Hshery; and that the Salmon and Shad Fisheries, and all Fish-
eries in Rivers, and the mouths of Rivers, are hereby reserved exclusively
for Fishermen of the United States.'
"By the 1st article it was also further agreed:— 'That in order to pre-
vent or settle any dispute as to the places to which the reservation of
exclusive right to British Fishermen contained in this Article, and that of
Fishermen of the United States, contained in the second Article, should
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RESERVED FISHERIES. 451
apply — each of the high contrncting parties, on the application of either
to the other, shsiU, within nix months thereafter, appoint a Commissioner.
The said Commissiouere hefore proceeding to any business, shall make and
Biihscrihe a solemn declaration that they will impartially and carefully
examine and decide to the best of tlieir judgment, and according to justice
and equity, without fear, favour, or affection to their own country, upon
all such places as are intended to be reserved and excluded from the com-
mon liberty of fishing under the said two articles.' In case of disagree-
ment, provision is made for an umpire, and the 'high contracting parties
solemnly engage to consider the decision of the Commissioners conjointly,
or of the arbitrator or umpire, as the case may be, absolutely final and
conclusive in each case decided upon by them, or him, respectively.'
'* By Article 5, the Treaty was to ' take effect as soon as the laws required
to carry it into operation should be passed by the Imperial Parliament of
Great Britain, and by the Provincial Parliaments of those British North
American Colonies which are affected by this Treaty on the one hand, and
by the Congress of the United States on the other.'
** It is understood that in making this last Treaty, neither Government
admitted itself to have been in error, with reference to the position it had
before maintained. The Treaty wiis emphatically an arrangement for the
future : ' The Government of the United States being equally desirous with
Her Msyesty the Queen of Great Britain (as declared in the preamble) to
avoid further misunderstanding between their respective citizens and sub-
jects, in regard to the extent of the right of fishing on the coasts of Brit-
ish North America, secured to each by Article I. of a Convention between
the United States and Great Britain, signed at London on the 20th day of
October 1818.'
"The Commissioners appointed under the provisions of this Treaty, pro-
ceeded to examine and decide upon * the places intended to be reserved
and excluded from the common liberty of fishing' under the Ist and 2nd
Articles. They differed in opinion as to the places hereinafter named, and
it has been submitted to me as the umpire under the j^rovisions of that
Treaty, to determine those differences.
" The copies of the Records of disagreement between the Commissioners,
transmitted to me, are as follows :
•' RECORD NO. 1.
" ' We, the undersigned, Commissioners respectively on the part of Great
Britain and the United States, under the Reciprocity Treaty concluded
and signed at Washington on the 5th day of June, A. D. 1854, having met
at Halifax, in the Province of Nova Scotia, on the 27th day of August, A.
D. 1855, thence proceeded to sea in the British Brigantine " Halifax," and
passing through the Strait of Canso, first examined the River Buctouche,
in the Province of New Brunswick.
" 'A survey was made of the month of the said River Buctouche by the .
Surveyors attached to the Commission, George H. Porley, on the part of
Great Britain, and Richard D. Cntts, on the part of the United States, a
plan of which, marked No. 1, and signed by the Commissioners respectively,
will be found in Record Book No. 2.
*'' We, the Commissioners, are unable to agree upon a line defining the
mouth of said River.
Digitized by LjOOQIC
452 INTERNATIONAL ARBITRATIONS.
" ' Her MajeBty^B ComniiBBioner claims that a line from Glover's Point t<»
the Southern extremity of the Sand Bar, (marked in red upon the afore-
said Plan No. 1,) designates the month of the said River Bnctouche; the
United States commissioner claims that a line from Chapel Point, hearing
South, 4^ West (magnetic), marked in hlue on the aforesaid Plan No. 1,
designates the mouth of said river; and of this disagreement record is
here made accordingly.
" * Dated at Bnctouche, in the Province of New Brunswick, this 19th
day of Septemher, A. D. 1856.
" * M. H. Pkkley, H, M. Commutsioner.
'^'G. G. CrsHMAN, U, S. Commissioner^
'• RECORD NO. 2.
"'We, the undersigned CommissionerM respectively, ou the part of
Great Britain and the United States, under the Reciprocity Treaty con-
cluded and signed at Washington ou the 5th day of June, A. D. 1854, hav-
ing examined the River Miramicrhi, in the Province of New Brunswick, are
unahle to a<;ree upon a line defining the mouth of said River.
"'Her Majesty's Commissioner claims that a line connecting Fox and
Portage Islands, marked in red. Plan 2, Record Book No. 2, designates the
month of the Miramichi River. The United Stat-es Commissioner clainiH,
that a line from Spit Point to Moody Point, marked in hlue on Plan 2,
Record Book No. 2, designates the mouth of said River; and of this disa-
greement, record is here made accordingly.
'' ' Dated at Chatham, on the Miramichi, in the Province of New Bruns-
wick, on this 27th day of Septemher, A. D. 1855.
*' ' M. H. Pkkley, TT. M, Commissioner.
*'*G. G. CusHMAN, U. S, Commissioner.'
"RECORD NO. 9.
" ' We, the undersigned. Commissioners under the Reciprocity Treaty
hotween Groat Britain and the United States, signed at Washington on
the 5th day of June, A. D. 1854, having examined the Elliot River, empty-
ing into Hillshorough Bay, on the Coast of Prince Edward Island; one of
the British North American Colonies, do herehy agree and decide, that a
line hearing North, 85^ East (magnetic;, drawn from Block House Point
to Sea Trout Point, as shown on Plan 7, Record Book No. 2, shall mark
the mouth, or outer limit, of the said Elliot River; and that all the waters
within, or to the Northward of such line, shall he reserved and excluded
from the common right of fishing therein, under the first and second arti-
cles of the Treaty aforesaid.
'^ * Her Majesty's Commissioner, in marking the ahove line, claims the
same as defining the joint month of the Elliot, York, and Hillsboron^li
Rivers.
'' 'The United States Commissioner agrees to the above line as the mouth
of the Elliot River only, not recognizing or acknowledging any other
River.
" ' Dated at Bangor, in the State of Maine, United States, this twenty-
seventh day of Septemher, A. D. 1856.
'*'M. II, Pkklky, //. M. Commissioner.
**'G. G. CusuMAX, U.S, Commissioner,*
Digitized by LjOOQIC
RESERVED FISHERIES. 453
RECORD NO. 10.
" * We, the iiDclersigned, Coiniiiissioners under the Reciprocity Treaty
between Great Britain and the United States, signed at Washington on
the 5th day of June, A. D. 1854, having examined the Montague River,
emptying into Cardigan Bay, on the Coast of Prince Edward Island, one
of the British North American Colonies, do hereby agree and decide, that
a line bearing North, 72^ East (magnetic), drawn from Grave Point to
Cardigan Point, as shown on Plan 7, Record Book No. 2, shall mark the
mouth, or outer limit, of the said Montague River ; and that all the waters
within, or to the Westward of such lino, shall be reserved and excluded
from the common right of fishing therein, under the iirst and second Arti-
cles of the Treaty aforesaid.
'''Her Majesty's Commissioner, in marking the above line, claims the
same as defining the joint month of the Montague and Brudenell Rivers.
'' 'The United States Commissioner agrees to the above line, as marking
the mouth of the Montague only, not recognizing, or acknowledging any
other River.
" * Dated at Bangor, in the State of Maine, United States, this twenty-
seventh day of September, A. D. 18-56.
'"M. H. Perley, H. M. CommisHoner.
"*G. G. CusiiMAK, U. S. Commisnoner:
"RECORD NO. 11.
" ' We, the undersigned, Commissioners under the Reciprocity Treaty
between Great Britain and the United States, signed at Washington on
the 5th day of June, A. D. 1854, having examined the Coasts of Prince
Edward Island, one of the British North American Colonies, are unable
to agree in the following respect: —
'* 'Her Majesty's Commissioner claims, that the undermentioned places
are Rivers, and that their mouths should be marked, and defined, under
the provisions of the said Treaty :
'"Vernon, Orwell, Seal, Pinuette, Murray, Cardigan, Boughton, Fortane,
Souris, St. Peter's (designated St. Peter's Bay on the Map of the Island),
Try on, Crapaud, Winter, Hunter, Stanley, Ellis, Foxley, Pierre Jacques,
Brae, Percival, Enmore, Ox, Haldiman, Sable.
"'The United States Commissioner denies that the above-mentioned
places are Rivers, or such places as are intended to be reserved and
excluded, from the common liberty of fishing.
'* 'Dated at Bangor, in the State of Maine, United States, this twenty-
seventh day of September, A. D. 185&.
"'M. H. Pkrlky, B. M, Commissioner.
" ' G. G. Cdshman, U. S. Commissioner,^
"It will thus be seen that the differences between the Commissioners
resolve themselves into two divisions: — Ist. Whether the twenty-fonr
places named in Prince Edward Island, or any of them, as is contended by
Her Majesty's Commissioner, are to be deemed Rivers, and therefore
reserved and excluded from the common liberty of the Fishery? Or
whether, as is contended by the United States Commissioner, these places,
or some of them, are not Rivers, and therefore open to the common liberty
Digitized by LjOOQIC
454 INTERNATIONAL ARBITRATIONS.
of the Fishery? 2ud. The Miramichi and Bactouche in New Brnnswick,
beinjj; admitted to be KiverB, by what lines are the mouths of those Rivers
respectively to be determined f
'* In coming to any conclusion on these points, it is unquestionably the
duty of the Umpire, to look at the spirit and object of the Treaty, —
the causes of difficulty it was intended to remove, — the mode of removal
proposed.
"The classes of fish sought for in the deep sea Fisheries ntrike within
'three marine miles ' from the shore; the ' Bays' within the headlands are
their places of resort, but unlike the salmon or the shad, they do not
ascend the Rivers, or particnlarly seek their entrances. To prosecnte the
Mackerel Fishery w^ith success, the right of fishing on the 'sea coast and
shores' within 'three marine miles,' and within the 'Bays,' with the privi-
lei;e of landing for drying nets and curing fish, was absolutely necessary;
tlu^ convenience of a ' Harbour,' and the right of fishing therein, desirable.
A 'ereok,' wliich Webster and Mannders both define to be, according to
FiUglitsh usage and etymology, 'a small inlet, bay or cove, a recess in the
shore of the sea, or of a river,' and which though 'in some of the American
States/ meaning a small River, Webster says, 'is contrary to English
usage, and not justified by etymology,' would also in many instances
afford accommodation. A right to the 'sea coast and Bhores' — to the
f Harbours' and the 'Creeks,' would thus afford the fisherman all that he
would require, and leave to the Rivers, rising far in the interior of the
respective countries, and flowing by the homes and the hearths of a dif-
ferent nation, the sacred character which wonld save them from the
stranger's intrusion.
" The Question then that first presents itself, are the twenty-four places
named, or any, and which of them, in Prince Edward Island, to be deemed
Riverst
"It is difficult to lay down any general proposition, the application of
which would determine the question. There is no limitation as to size or
volume; the Mississippi and the Amazon, roll their waters over one fourth
of the circumference of the earth. The ' Tamar,' the ' Ex,' and the ' Tweed '
would hardly add a ripple to the ' St. Lawrence,' yet all alike bear the
designation, are vested with the privileges, and governed by the laws and
regulations of Rivers. It is not the absence or prevalence of ftesh or
salt water; that distinction has been expressly ignored in the celebrated
case of Home against McKenzie on appeal in the House «if Lords.^ It is
not the height or lowness of the banks; the Rhine is still the same River,
whether flowing amid the mountains of Germany or fertilizing the low
plains of Holland. It is not the rise or fall of tide, or the fact that there
may be little, if any water, when the tide is out. The Stour and Orwell
in England, are dry at low water, yet they have always been recognized
and treated as Rivers. The Petitcodiac in New Brunswick, the Avon in
Nova Scotia, owe their width, their waters, their utility, entirely to the
Bay of Fundy ; yet their claim to be classed among Rivers has never been
doubted. The permanent or extraordinary extent of the stream, in cases
where not at all or but little influenced by the tides is no criterion. The
periodical thaws and freshets of Spring and Autumn in America make rivers
^ 6 Clark & Finelly's Repts. ; Angel on Tide Waters, 74.
Digitized by LjOOQIC
RESERVED FISHERIES. 455
of vast magnitude, nsefnl for a thousand commercial purpoBes, in places
where, when those thaws and freshets have passed away, their dry heds
are visible for weeks. The term ' flottable ' applied to snch streams, is well
recognized in the Conrtsof the United States, classing them among rivers,
and clothing the inhabitants upon their banks with the rights of riparian
proprietors, and the public at large with the privilege of accommodation.'
''An important test may be said to be the existence or nonexistence of
bars at the mouths of waters or streams running into the sea. The exist-
ence of such bars necessarily pre-snpposes a conflict of antagonistic
powers. An interior water forcing its way out, yet not of sufficient
strength to plough a direct passage through the sands accumulated by
the inward rolling of the sea, would necessarily diverge, and thus leave a
bar in front of its passage, just at that distance where the force of its
direct action would be expended. Some rivers, such as the Mississippi
and the Nile, make deltas, and run into the sea. In this ease, the extreme
land would give a natural outlet. Others again run straight into the sea,
without any delta, and without any estuary. In these cases, the bar at
the mouth would give a natural limit; but the bar at the mouth is equally
characteristic of its being a river. There are cases again, where the
estuary gradually widening into the sea, leaves neither bar nor delta to
mark its outlet, or determine its character. In such cases, for the latter
object, other grounds must be sought on which to base a decision ; and in
making the former, the exercise of a sound discretion could be the only
guide.
"The decision upon any snch question mnst, after all, be more or less
arbitrary. The physical features of the surrounding country, the impres-
sions created by local inspection, the recognized and admitted character
the dispnted places have always borne, constitute material elements in
forming a conclusion. The possibility that the privileges conceded by
this Treaty may be abused, can have no weight. There will doubtless be
found in both countries men who will disregard its solemn obligations,
and take advantage of its concessions, to defrand the revenue, violate
local laws, and infringe private rights, and in thus disgracing themselves,
affect the character of the nation to which they belong; they will, how-
ever, meet with no consideration at the hands of the honourable and right
thinking people of either country. The framers of this Treaty would not
permit such minor difficulties to stand in the way of the great object they
had in view, to cement the alliance, and further the commercial prosper-
ity of two Empires. Such difficulties can be obviated, if necessary, by
national or local legislation.
"The Rivers of Prince Edward Island, whether one or one hundred in
nnmber, must, as to length, necessarily be small. The Island is in no part
much over thirty miles in width, and the streams run through it, more or
less transversely, not longitudinally. Captain (now Admiral) Bayfield,
the accomplished hydrographer, and Surveyor of the Gulf of St. Lawrence,
thus describes it :
"'Prince Edward Island, separated from the Southern shore of the Gulf
of the St. Lawrence by Northumberland Straits, is one hundred and two
1 Rowe vs.- Titns, Kerr's Reports, New Bwk. Courts ; Angel on Tide
Waters, 79.
Digitized by LjOOQIC
456 INTERNATIONAL ARBITRATIONS.
miles long, and in one part about thirty miles broad; bnt the breadth is
rendered extremely irregular by large Bays, inlets, and rivers, or rather
sea creeks, which penetrate the Island, so that no part of it is distant more
than seven or eight miles from navigable water. Its shape is an irregular
crescent, concave towards the Gnlf, the Northern shore forming a great
Bay, ninety-one miles wide and twenty-two miles deep, out of which, the
set of the tides and the heavy sea render it very difiQcult to extricate a
ship, when caught in the Northeast gales which frequently occur towards
the fall of the year, occasionally blowing with great strength and duration,
and at such times proving fatal to many vessels.'^
''This passage has been particularly called to my attention in a very
elaborate and able statement of his views, placed before me by the United
States Commissioner, who further adds, 'that Sir Charles A. Fitzroy, the
Lieut. Governor of the Island of Prince £dward, in an official communi-
cation to the British Government, calls the Island Rivers "strictly speak-
ing, narrows arms of the sea;''' and that 'Lord Glenelg, in his reply,
alludes to them as ' ' inlets of the sea/' ' On examining the Records referred
to by the Commissioner,'^ I find the first to be a Despatch (in January
1858,) from Sir. Charles Fitzroy, to the Colonial Secretary, Lord Glenelg,
with reference to the reserves for Fisheries, contained in the original
grants in the Island, arising out of the Order in Council, under which
those grants were issued, and which was as follows : ' That in order to pro-
mote and encourage the Fishing, for which many parts of the Island are
conveniently situated, there be a clause in the grants of each Township
that abnts upon the sea shore, containing a reservation of liberty to all
His Majesty's subjects in general, of carrying on a free fishery on the coasts
of the said Townships, and of erecting stages and other necessary build-
ings for the said fishery, within the distance of five hundred feet from
high water mark.*
" He then states he enclosed for the information of the Government — 'a
return showing the several reserves for this purpose contained in the dif-
ferent Townships, from which it will appear that the reservation as con-
templated in the Order of Council has been strictly followed in only twelve
Townships. In thirty-two Townships the reservation is as follows — "and
further saving and reserving for the disposal of His Majesty, his heirs and
successors., five hundred feet from high water mark, on the coast of the
tract of land hereby granted, to erect stages and other necessary build-
ings for carrying on the Fishery;" of the remaining twenty-three Town-
ships, eighteen contain no fishery reservation; and of five no grants
whatever are on record.' And he then remarks : — ' By reference to a plan
of the Island annexed to the return, your Lordship will perceive that sev-
eral of the Townships which do contain reservations abut upon rivers
only, or more strictly speaking, narrow arms of the Sea.'
"Lord Glenelg, in his reply, (May 1^38,) says— 'It appears to me that
the reservation made of lands adjacent to the sea coast, or to the shores
1 Bayfield's Sailing Directions for the Gnlf and River St. Lawrence, part
3. p. 92.
3 Journals of the Legislative Council of Prince £d. Island, A. D. 1839.
Appendix D.
Digitized by LjOOQIC
RESERVED FISHERIES. 457
of inlets from the Sea, for the purpose of fishini^, so far as the right has
been reserved to the Queen's subjects roUectively, conBtitute[8] a prop-
erty, over which the power of the Crown is exceedingly questionable.'
*' It does not appear to nie that these passages bear the construction put
upon them, or were intended to designate the Islantl rivers generally, or
in any way determine their character. Is it not rather a mere qualiiied
mode of expression used at the time, without any definite object, or per-
haps if any, to avoid being concluded by either term? But if the use of a
term by one or two of the local authorities is to be deemed of such weight,
of how much more weight would be the continued use by the legislature
for years of a contrary termf There are Acts of the Assembly vesting
rights, imposing penalties, and creating privileges with reference to these
waters, under the name and designation of Rivers, to a series of which I
call attention, n»mely: — 10 Geo. IV., c. 11; 2 Wm. IV., c. 2 and 13; 3
Wm. IV., c. 8, 9, and 10; 5 Wm. IV., 3 and 7; 6 Wm. IV., c. 2.5; 7 Wm. IV.,
c. 23; 1 Vic, c. 19; 2 Vic, c 10; 3 Vic, c. 12; 4 Vic, c 16; 4 Vic, c 18;
5 Vic, c 9; 7 Vic, c 3; 8 Vic, c 20; 12 Vic, c. 18, c 35 and 22; 15 Vic,
c 34; 16 Vic, c 28. Also to the various reports of the Annual Appropria-
tions and Expenditures, to be found in the .Journals of the Legislature.
'K)u an examination of these Acts, it will be found that the Legislature
of the Island has by a continued series of enactments, extending over a
period of thirty years, legislated upon the * Rivers,' 'Bays,' 'Creeks,' 'Har-
bours,' and 'lesser streams' of the Island, recognizing their existence and
difference, appropriating the local revenues to their improvement, establish-
ing rights, and creating private interests with reference to them, entirely
inconsistent with their being aught but the internal waters and rivers of
the Island, and directly at variance with the terms and character of legis-
lation, which would have been used had they been considered ' arms ' or
mere 'inlets of the sea.' Such Acts by the Congress of the United States,
or by the respective Legislatures of the several States, on any matter
within their jurisdiction, would be regarded as conclusive of the character
of the subject legislated upon. The legislation of Prince Edward Island*
in pari materid, is entitled to the same consideration. The British Govern-
ment at the present day, neither legislates away, nor interferes with the
local administration of the affairs of the Colonies, litis very treaty is
dependent upon the action of the Provincial Parliaments, and based upon
the preservation of private rights. Can it be contended, or shall it be
admitted, that this Treaty abrogates the L<'gislation of years, ignores the
Laws of the Island, and by implication annuls rights and privileges the
most sacred a Colony can possess t Certainly not. If it be desirable from
the peculiar conformation of this Island and its waters, that the latter
should be viewed in a light different from that in which they have been
hitherto regarded, the local Legislature can so determine.
"In a very important decision of the Supreme Court of Iowa, reported
in the American Law Register, issued at Philadelphia, in August 1857, it
was determined, 'that the real test of navigability in the United States,
was ascertained by m«6, or by public act of declaration ; and that the Acts
and Declarations of the United States, declare and constitute the Missis-
sippi River, a public highway, in the highest and broadest intendment
possible.' Shall not therefore the public Acts and Declarations of the
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458 INTERNATrONAL ARBITRATIONS.
Legislature of Prince Edward Island be considered of some anthority in
determining what are the Rivers of that Island?— and particularly when
those Acts and Declarations were made long anterior to the present ques-
tion being raised f But might it not also be assumed, that where a country
had, by a long series of public documents, legislative enactments, grants,
and proclamations, defined certain waters to be rivers, or spoken of them
as such, or defined where the mouths of certain rivers were, and another
country subsequently entered into a Treaty with the former respecting
thoHO very waters, and used the same terms, without specifically assign-
ing to them a different meaning, nay, farther stipulated that the Treaty
Hhould not take effect in the localities where those waters were, until con-
firmed by the local authorities, might it not be well assumed that the defi-
nitions previously nsed, and adopted, would be mutually binding in
interpreting the Treaty, and that the two countries hail consented to
use the terms in the sense in which each had before treated them in their
public instruments, and to apply them as they had been previously
applied in the localities where usedt I think it might.
''Admiral Bayfield did not intend by the term 'sea creeks,' as he informs
me in reply to a communication on this subject, to convey the impression
contendedfor by the United States Commissioner, that they werenot Rivers.
He says, under date of 3d September, 1857: — 'With reference to the term
'*sea creeks,'* to which your attention has been called as having been nsed
by me at ptigc 92, and various other parts of the Directions, I have nsed
that term in order to distinguish the inlets from the small streams (dis-
proportionably small in summer) that flow through them to the sea.
" 'In the instances referred to, I mean by "sea creeks," inlets formed by
the combined action of the Rivers and the Tides, and through which those
rivers flow in the channels, more or less direct, and more or less plainly
defined by shoals on either side. Wherever there are bars across the inlets,
as is very generally the case, I consider the channels through those bars,
to form the common entrances from the sea to both Inlets and Rivers; for
it appears to me, that a River is not the less a River, becanse it flows
through a creek, an inlet, or an estuary. The point where the fresh water
enters the estuary, and mixes with the tide waters, may be miles inland,
but it does not, I think, cease to be a River until it flows over tts bar into
the Sea.'
"This view of Admiral Bayfield, that such waters do not lose their
character of Rivers becanse flowing through an inlet, or an estuary, is
confirmed by the principles laid down to determine what are 'navigable'
Rivers, in the technical sense of the term, as distinguished from its common
acceptation. To the extent that fresh waters are backwardly propelled
by the ingress and pressure of the tide, they are denominated navigable
Rivers; and to determine whether or not a River is navigable both in the
common law, and in the Admiralty acceptation of the term, regard must
be had to the ebbing and flowing of the tide. In the celebrated case of
the River Bann, in Ireland, the Sea is spoken of as ebbing and flowing in the
River, These principles are recognized in the Courts of the United States,
and the authorities collated, and most ably commented npon by Angel.
"Indeed, it would seem that the Commissioners themselves have not
attached to this term 'sea creek,' as nsed by Admiral Bayfield, the force
Digitized by LjOOQIC
RESERVED FISHERIES. 459
or character which it is now alleged it should bear, as they have by their
Record No. 10, under dnte of 27th of September 1856, transmitted to me, with
the other official documents in this matter, pronounced the 'Montagae' to
be a * River/ and determined upou its month, though ('uptain Bayfield, in
his Sailing Directions, before referred to, page 123, speaks of it as a ' sea
creek.' It has been urged, that if these places are declared to be Rivers,
and not creeks or harbours, then where are the creeks and harbours con-
templated by the Treaty. To this it may be answered, that this Treaty
does not contemplate Prince Edward Island alone — and even though none
such might be found within its narrow circle — yet they may be found in
numbers along the five thousand miles of coast, exclusive of Newfound-
land, which this Treaty covers, extending from 36th parallel of north
latitude in the Uniti'd States, to the furthest limits of Labrador.
'' With these ]>reliminary observations, I shall take up the disputed
places in Prince Edward Island, and proceed to decide upon them, in the
order in which they have been submitted :
••NO. l.-VERNON.
"I, the undersigned. Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examined the Vernon, in Prince Edward Island,
concerning which a difference of opinion had arisen between Her Majesty's
Commissioner and the Commissioner of the United States, as disclosed in
Record No. 11 of their proceedings, am of opinion that the Vernon is
entitled to be considered a River.
'' It has, at low tide, water for boat and shallop navigation. It has
good breadth, requiring a long and strong bridge to cross it. Vessels are
built two miles from its mouth. As you drive along its banks, there would
be no hesitation in speaking of it, were no question raised, as a River. It
would appear as if the salt w<iter were an intrusion into a channel, formed
and supplied by a running stream, enlarging and deepening the channel,
but finding it there, the banks and surrounding lands all bearing towards
the Vernon the same relative formation as the banks towards admitted
Rivers. It is spoken of in Bayfield's Sailing Directions as a River, and as
such in various Acts of Assembly.
"As such Arbitrator or Umpire, I decide that the Vernon is a River.
"Dated at Saint John, in the Province of New-Brnnswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
•NO. 2.-()RWELL.
"I, the undersigned, Arbitnitor or Umpire under the Reciprocity Treaty
concluded and signetl at Wushiugton ou the 5th day of June, A. D. 1854,
having proceeded to and examined the Orwell, in Prince Edward Island,
concerning which a difference of opinion had arisen between Her Britan-
nic Majesty's Commissioner and the Commissioner of the United States,
as is disclosed in Record No. 11 of their proceedings, am of opinion that
the Orwell is entitled to be considered a River.
"It is spoken of by Bayfield, in conjunction with the Vernon, as a
Kiver ; has been recognized as such in the Public Acts of the Island ; and
Digitized by LjOOQ IC
460 INTERNATIONAL ARBITRATIONS.
described under that designation, as a bonndary in the ancient grants, aa
far back as 1769.
"As such Arbitrator or Umpire, I decide that the Orwell is a River.
'M)ated at Saint John, in the Province of New- Brunswick, this 8th day
of April, A. D. 1858.
'•John Hamilton Gray.
•'N0.3.-SEAL.
** I, the undersigned. Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1K5I,
having proceeded to ana examined the Seal, in Prince Edward Island, con-
cerning which a difference of opinion had arisen between Her Britannic
Majesty's Commissioner and the Commissioner of the United States, as
disclosed in Record No. 11 of their proceedings, am of opinion that the
Seal is entitled to be considered a River.
''The Seal is spoken of by Bayfield as a River, and recognized as such in
the Public Acts of the Island. It is a small tributary of the Vernon, and
as such Arbitrator or Umpire, I decide it is a River.
''Dated at Saint John, in the Province of New- Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
"NO. 4.— PINNETTE.
" I, the undersigned, Arbitrator or l^nipire nnder the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examined the Pinnette, in Prince Edward Island,
concerning which a difference of opinion had arisen between Her Britannic
Majesty's Commissioner and the Commissioner of the United States, as
disclosed in Record No. 11 of their proceedings, am of opinion that the
Pinnette is a tidal basin or harbour; and as such Arbitrator or Umpire, I
decide that it is not a River.
"Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
•'N0.5-MURRAT.
" I, the undersigned, Arbitrator or Umpire nnder the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examined the Murray, in Prince Edward Island,
concerning which a difference of opinion had arisen between Her Britannic
Majesty's Commissioner and the Commissioner of the United States, as
disclosed in Record No. 11 of their proceedings, am of opinion that the
Murray is entitled to be considered a River.
"The Murray is a River, and entitled to be so considered, in view of its
abundant supply of fresh water, its formation, and deep and navigable
channel. By reference to the original grants in 17B9, of Lots 63 and 64,
bordering on the 'Murray,' it will be seen that the Crown at that early
day drew the distinction between the river, the harbour, and the sea
coast, and bounds these lots by the harbour and river, and by the sea
Digitized by CjOOQIC
RESERVED FISHERIES. 461
coast respoctively. It is also recognized in the Pablio Acts of appropria-
tion of the Island, under that designation.
'^As such Arbitrator or Umpire, I decide that the Murray is a River.
''Dated Saint John, in the Province of New-Brunswick, this 8th day of
April, A. D. 1858.
''John Hamilton Gray.
••no. 6— cardigan.
"I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washingtiin on the 5th day of June, A. D. 1854,
having proceeded to and examined the Cardigan, in Prince Edward Island,
concerning which a difference of opinion had arisen between Her Britan-
nic Majesty's Commissioner and the Commissioner of the United States,
as disclosed in Record No. 11 of their proceedings, am of opinion that the
Cardigan is entitled to be considered a River.
"It is so described by Bayfield. It bears a close resemblance to the
Montague and the Elliot, which have been declared by both Commission-
ers, as appears by RecordH Nos. 9 and 10, to be Rivers. It is so designated
by the Crown, in the grant of Lot 34 in 1769; and has been repeatedly
recognized as such by the Legislature.
" As such Arbitrator or llmpire, I decide the Cardigan is a River.
"Dated at Saint John, in the province of New -Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
•'NO. 7.— BOU(}HTON.
" I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th of June, A. D. 1854, hav
ing proceeded to and examined the Bonghton, in Prince Edward Island,
concerning which a difference of opinion had arisen between Her Britan
nic Majesty's Commissioner and tlie Commissioner of the United States,
as disclosed in Record No. 11 of their proceedings, am of opinion that the
Bonghton is entitled to be considere<l a River.
" It is deep and broad, affording accommodation for vessels, and facilities
for ship building, far in the interior. Its comparatively narrow entrance,
and bar across its mouth, are observable and striking characteristics. It
is described as such by the Crown, in the grant of Lot 56 in 1769; has been
repeatedly recognized by the Legislature, under the name of Grand River;
and by Bayfield in his Sailing Directions.
"As such Arbitrator or Umpire, I decide that the Bonghton is a River.
"Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
••NO. 8.-F0RTUNE.
" I, the undersigned. Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signe<l at Washington on the 5th day of June, A. D. 1854,
having profee<led to and examined the Fortune, in Prince Edward Inland,
concerning which a difference of opinion had arinen between Her Britannic
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462 INTERNATIONAL ARBITRATIONS.
Majesty's Commissioner and the Commissioner of the irnited States, as dis-
closed in Record No. 11 of their proceedings, am of opinion that the Fortune
is a River.
"As snch Arbitrator or Umpire, I decide the Fortune to be a River.
"Dated at Saint John, in the Province of New-BrunswicJc, this 8th day
ofApril, A. D. 1858.
"John Hamilton Gray.
"NO. 9.-S0URIS.
"I, the.nndersij^ned, Arbitrator or Umpire under the Reciprocity Treaty,
concluded »t Washington on the 5th day of June, A. D. 1854, having ])ro-
ceedod to and examined the Souris, in Prince Edward Island, concerning
which a difference of opinion ha<l arisen between Her Hritannic Majesty's
Commissioner and the Commissioner of the United States, as disclosed in
Record No. 1 1 of their proceedings, am of opinion that the Souris is en-
titled to be considered a River.
"The Souris is called by Baylield, ColviUe River.
"As snch arbitrator or Umpire, 1 decide that the Souris is a River.
"Dated at Saint John, in the Province of New- Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
'•NO. 10.— ST. PETER'S.
" I, the undersigned. Arbitrator or Umpire under the Reciprocity Treaty ,
concluded and signed at Washington on the 5th day of Juno, A. D. 1854,
having proceeded to and examined St. Peters, in Prince £dward Island,
concerning which a diftereuce of opinion had arisen between Her Britan-
nic Majesty's Commissioner and the Commissioner of the United States,
as disclosed in Record No. 11 of their proceedings, am of opinion that St.
Peter's is not entitled to be considered a River.
" It is claimed by Her Majesty's Commissioner, as a River; by the United
States Commissioner, as an inlet of the Sea, or at most a harbour. I think
the view taken by the United States Commissioner correct. It is certainly
not formed by the Morel, the Midgic. or the Marie, which run into it; and
the little stream called Saint Peter's at its head, is entirely unequal to the
task. It is also to be observed, that in the ancient grant of Lot 39, in
1769, it is given as a boundary under the designation of St. Peter's Bay;
and in the grants of Lots 40 and 41, in the same year (1769), partly border-
ing on, and partly embracing within their bonndaries, Saint Peter's Bay, it
is described (thongh inaccurately ns a boundary) as ' the Sea.' I do not
find it any where recognized in the legislation of the Island as a River;
but always as Saint Peter's Bay.
"As such Arbitrator or Um])ire, I decide that Saint Peter's is not a River.
"Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
••NO.ll.-TRYON.
" I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examined the Tryon, in Prince £dward Island,
Digitized by LjOOQ IC
RESERVED FISHERIES. 463
concerning which a difference of opinion had arisen between Her Britannic
Majesty's Commissioner and the Commissioner of the United States, as
disclosed in Record No. 11 of tbeir proceedings, am of opinion that the
Try on is entitled to be considered a River.
**As such Arbitrat.or or Umpire, I decide the Tryon to be a River.
** Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
"NO. 12.— CRAPAUD.
"I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examined the Crapaud, in Prince Edward Island,
concerning which a difference of opinion had arisen between Her Britannic
Majesty's Commissioner and the Commissioner of the United States, as
disclosed in Record No. 11 of their proceedings, am of opinion that the
Crapaud is not a River.
"As such Arbitrator or Umpire, I decide the Crapaud not to be a River.
•* Dated at Saint John, in the Province of New- Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
"XO. 13.— WINTER.
" I, the undersigned. Arbitrator or Umpire under the Recriprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examined the Winter, iu Prince Edward Island,
concerning which a difference of opinion had arisen between Her Britannic
Majesty's Commissioner and the Commissioner of the United States, as
disclosed in Record No. 11 of their proceedings, am of opinion that the
Winter is entitled to bo considered a River.
"Apart from its rise in the interior, and its abundant fresh water, its
channel* through Bedford Bay, (as it is called,) is marked and distinct —
showing a continuous flow or current of water, from the interior towards
the Sea; a channel bounded by shoals ; and proving by its deflected course,
that the breach in the sands on the sea shore, forming the entrance to the
so-called Bedford Bay, has been formed by the water seeking an outlet for
itself, not from the Sea making a passage in. In fact, if there were no
River or stream in the interior, of sufficient strength to make the outlet,
and keep it open, the water of the 8ea would only make the embankment
more solid, and there would be no bay or harbour at all.
"As such Arbitrator or Umpire, I decide the Winter to be a River.
" Dated at Saint John, in the Province of New-Brunswick, this 8th day
of AprU, A. D. 1858.
"John Hamilton Gray.
"NO. 14.— HUNTER.
" I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty,
coucluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examineil the Hunter, in Prince Edward Island,
concerning which a difference of opinion had arisen between Her Britannic
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464 INTERNATIONAL ARBITRATIONS.
Majesty's ComDiissioner and the Commissi ouer of the United States, as dis-
closed in Record No. 11 of their proceedings, am of opinion that the Hunter
is entitled to be considered a River.
"As such Arbitrator or Umpire, I decide that the Hunter is a River.
'' Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
*'JoiiN Hamilton Gray.
^'0. 15.-STANLEY.
*' I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examined the Stanley, in Prince Edward Island,
concerning which a difference of opinion had arisen between Her Britannic
Majesty's Commissioner and the Commissioner of the United States, as dis-
closed in Record No. 11 of their proceedings, am of opinion that the Stanley
is entitled to be considered a River.
''The Stanley is a full deep stream, having, if the expression may be
used, two or three heads and several affluents, and is surrounded, from its
sources to its outlet, by a succession of hills of rapid elevation and d&scent,
converging in many different parts towards the River, and affording by
their slopes, and the courses at their base, numerous feeders. Its large
tributaries, the Trent and Old Mill Rivers, help to swell its volume. It is
described as one of the boundaries of Lot 21 in the ancient grant of 1769,
and recognized by the Legislature under the designation of Stanley River.
''As such Arbitrator or Umpire, I decide the Stanley to be a River.
" Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
"John Ha.milton Gray.
"NO. 16.— ELLIS.
"I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examined the Ellis, in Prince Edward Island,
concerning which a difference of opinion had arisen between Her Britannic
Majesty's Commissioner and the Commissioner of the United States, as
disclosed in Record No. 11 of their proceedings, am of opinion that the
Ellis is a River.
" In the grants of Lots 14 and 16 in 1769, it is so described. A long suc-
cession of Legislative enactments so recognizes it. Its broad, deep chan-
nel; its abundant supply of fresh water; and the extent of country it
drains, leaves no question about it.
"As such Arbitrator or Umpire, I decide the Ellis to be a River.
" Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
"NO. 17.— FOXLEY.
" I, the undersigned. Arbitrator or Umpire under the Reciprocity Treaty,
conclnded and signed at Washington on the 5th of June, A. D. 1854, hav-
ing proceeded to and examined the Foxley, in Prince Edward Island, con-
cerning which a difference of opinion had arisen between Her Britannic
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RESERVED FISHERIES. 465
Majesty's Commissioner and the Commissioner of the United States, iis
disclosed in Record No. 11 of their proceedings^ am of opinion that tbc
Foxley is entitled to be considered a River.
"The Foxley is described as a River in the ancient grants in 1769.
"As such Arbitrator or Umpire, I decide the Foxley to be a River.
''Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
''John Hamilton Gray.
'•NO. 18.-PIERRB JACQUES.
"I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examined the Pierre Jacques, in Prince Edward
Island, concerning which a diflference of opinion had arisen between Her
Britannic Majesty's Commissioner and the Commissioner of the United
States, as disclosed in Record No. 11 of their proceedings, am of opinion
that the Pierre Jacques is entitled to be considered a River.
"As such Arbitrator or Umpire, I decide that the Pierre Jacques is a
River.
''Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
"NO. 19.— BRAE.
" I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examined the Brae, in Prince Edward Island,
concerning which a difference of opinion had arisen between Her Britan-
nic Majesty's Commissioner and the Commissioner of the United States,
as disclosed in Record No. 11 of their proceedings, am of the opinion that
the Brae is not entitled to be considered a River.
"As such Arbitrator or Umpire, I decide that the Brae is not a River.
"Dated at Saiut John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
' ^ J OHX Hamilton* Gka y.
"NO. 20— PERCIVAL.
"I, the undersigned. Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington ou tlie 5th day of June, A. D. 1854,
having proceeded to and examined the Percival, in Prince Edward Island,
concerning which a difference of opinion had arisen between Ht-r Majesty's
Commissioner and the Commissioner of the United States, as disclosed in
Record No. 11 of their proceedings, am of opinion that the Percival is a
River.
"The Percival is spoken of by Bayfield as a River. It is so described in
the grant of Lot 10, in 1769; and like the Stour and the Orwell in Eng-
land, owes its waters almost entirely to the Sea.
"As such Arbitrator or Umpire, I decide the l*ei<'ival to be a River.
"Dated at Saint John, in the Proviuco of New-Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
5637 30
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466 INTEBNATIONAL ARBITRATIONS.
"N0.21.-ENM0RE.
** I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854, hav-
ing proceeded to and examined the Enmore, in Prince Edward Island, con-
cerning which a difference of opinion ha<l arisen between Her Britannic
Majesty's Commissioner and the Commissioner of the I'^nited. States, as
disclosed in Record No. 11 of their proceedings, am of opinion that the
Enmore 18 entitled to be considered a River.
'* The Enmore was treated as a River m the grants of Lots 10 and 13, in
1769; is so recognized by Bayfield; and has a bar at its mouth, formed by
the conflict of the tides and the descending stream.
*' As such Arbitrator or Umpire, I decide the Enmore to l>e a river.
** Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
NO. 22.— OX.
" I, the undersigned. Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examined the Ox, in Prince Edward Island, con-
cerning which a difference of opinion had arisen between Her Britannic
Majesty's Commissioner and the Commissioner of the United States, as
disclosed in Record No. It of their proceedings, am of opinion that the Ox
is not entitled to be considered a River.
" As such Arbitrator and Umpire, I decide that the Ox is not a River.
*^ Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gbav.
NO. 23.-HALDIMAN.
" I, the undersigned, Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June. A. D. 1>^,
having proceeded to and examined the Haldiman, in Prince Edward Island,
concerning which a difference of opinion had arisen between Her Britan-
nic Majesty's Commissioner and the Commissioner of the United States, as
disclosed in Record No. 11 of their procee«lings, am of opinion that the
Haldiman is entitled to be considered a River.
"The Haldiman is described as a River in the grant of Lot 15, in 1769.
and is so regarded by Bayfield.
"As such Arbitrator or Umpire, 1 decide the Haldiman to be a River.
'• Dated at Saint John, in the Province of New- Brunswick, this 8th day
of April, A. D. 1858.
"John Hamilton Gray.
no. 24.— sable.
" I, the undersigned. Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1KV4,
having proceeded to and examined the Sable, in Prince Edward Island,
concerning which a difference of opinion Inul arisen between Her Britan-
nic Majesty's Commissioner and the CommisAioner of the United States, as
Digitized by LjOOQIC
RESERVED FISHERIES. 467
disclosed . in Record No. 11 of their proceedings, am of opinion that the
Sable id not entitled to be considered a River.
''Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, A. D. 1858.
*'JoHN Hamilton Gkay.
"PART SECOND.
"T now come to the second division, namely : — theMiramiohi and the Due-
toiichoy beini; admitted to be Rivers, which of the lines pointed out by the
Commissioners shall respectively designate the mouths of those Rivers f
"the miramichi.
"I, thfuindersigned, Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at Washington on the 5th day of June, A. D. 1854,
having proceeded to and examined the mouth of the Miramichi, in the
Province of New Brunswick, concerning which a difference of opinion had
arisen between her Britannic Majesty's Commissioner and the Commis-
sioner of the United States, as disclosed in Record No. 2of their proceedings,
declare ns follows:—
With reference to the Miramichi, it will bo seen by Record No. 2 — Her
Majesty's Commissioner claims, that a line connecting Fox and Portage
Islands, (marked in red. Plan No. 2, Record Book No. 2,) designates the
mouth of the Miramichi River. The United States Commissioner claims,
that a line from Spit Point to Moody Point, (marked in blue, Plan No. 2,
Record Book No. 2,) designates the mouth of said River.
" By the Treaty it is provided, that — ' the above mentioned liberty applies
solely to tlie Sea Fishery; and that the Salmon and Shad Fisheries, and
all Fisheries in Rivers, and mouths of Rivers, are reserved exclusively,'
«&c., <&c.
"The preceding portion of Article Ist, gives the right to fish *on the
sea coasts and shores, and in the bnys, harbours and creeks.'
"The Inner Bay of the Miramichi, and the Harbour of Buctouche, are,
among other grounds, claimed as coming within the definition of *Ba5's
and Harbours,' and it has been urged, that the clause just referred to, is
conclusive in favor of that claim, whether such .bay or harbour does or
does not constitute the mouth of a River.
"It is therefore necessary, before deciding which of the lines above
designated as the mouth of the Miramichi, is the correct one, to dispose of
this preliminary question, namely: — Does the mouth of a River forfeit its
exclusive character, under this Treaty, because it may constitute a bay, or
harbour? Is the restriction imposed, limited to particular fish, or locality ?
The spirit with which this Treaty w:is made, and the object it has in
view, demand for it the most liberal construction; but, consistently with
the most liberal construction, there are many wise and judicious reasons
why the exception should be made. The joint, or common, Fisher^' in
those places where the forbidden fish resort, would be a prolific cause of
dispute. The very fact, that alter the forbidtlen fish are named, there
should follow the significant exj>ression tliat all lisheries in those plaees,
should be reserved, is conclusive as to the idea predominant in the minds
Digitized by VjOOQ IC
468 INTERNATIONAL ARBITRATIONS.
of the framers of the Treaty. They wanted peace; they would not put
the Fishermen of the two nations together, on the same ground, where
they would have unequal rights. ConsideratiouB of a national, administra-
tive, or fiscal character, may have determined them to exclude the entrances
of the great thoroughfares into the respective countries, from a common
possession. There are large and magnificent bays and harbours, uncon-
nected with Rivers; there are bays and harbours dependent ui>on and
formed by mouths of Rivera. The terms are not indicative of locality.
Bays and harbours may bo found far up in the interior of a country; in
lakes or in rivers, and on. the sea-board. The 'mouths of Rivers' are
found only in one locality, namely, in that part of the River by which its
waters are discharged into the sea or ocean, or into a lake, and that part of
the River is by the express language of this Treaty excluded. Is the use
of a term which may be applicable to many places, to supersede that which
can only be applied to a particular place, when the latter is pointedly,
60 ft amtM«, excluded? But why should such a construction be required,
when the object of the Treaty can be obtained without it. The cause of
the difficulty was not the refusal to ]>ermit a common fishery within the
mouths of Rivers, but within three marine miles of the sea coast. That
difficulty is entirely removed, by the liberty to take fish 'on the sea coast
and shores, and in the bays, harbours and creeks, without being restricted
to any distance from the shore.'
''The position taken by the Comuiissioner of the United States, is
further pressed, upon the ground, — 'That the terms of a grant are always
to be construed most strongly against the granting party.' The applica-
tion of that principle to the present case is not very perceptible. This is
rather the case of two contracting parties exchanging equal advantages;
and the contract must be governed by the ordinary rules of interpretation.
Vattel says, — * In the interpretation of Treaties, compacts, and promises,
we ought not to deviate from the common use of the language, unless we
have very strong reasons for it.' And, — ' When we evidently see what is
the sense that agrees with the intention of the contracting parties, it is
not allowable to wrest their words to a contrary meaning.' It is plain
that the framers of this Treaty intended to exclude Che ' mouths of Rivers'
from the common possession. Ought we, by construing the terms of the
Treaty most strongly against the nation where the River in dispute may
happen to be, to 'wrest their words to a contrary meaning?' I think not.
"Mr. Andrews, for many years the United States Consul in New Bruns-
wick and in Canada, a gentleman whoso great researches and untiring
energies were materially instrumental in bringing about this I'reaty, and
to whom the British Colonies are much indebted for the benefits they are
now deriving and may yet derive from its adoption, thus speaks of the
Miramichi in his Report to his Government in 1852: — 'The extensive har-
bour of Miramichi is formed by the estuary of the beautiful River of that
name, which is two hundred and twenty miles in length. At its entrance
into the Gulf, this river is nine miles in width.
'"There is a bar at the entrance of the Miramichi, but the River is of
such great size, and pours forth anch a volume of water, that the bar offers
no impediment to navigation, there l>ein«j; sufficient depth of water on it
at all times for ships of six and seven hundred tons, or even more. The
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RESERVED FISHERIES. 469
tide flows nearly forty miles up the Miramichi, from the Gulf. The River
is navigable for vessels of the largest class full thirty miles of that dis-
tance, there being from five to eight fathoms of water in the channel ; but
schooners and small craft can proceed nearly to the head of the tide.
Owing to the size and depth of the Miramichi, ships can load along its
banks for miles.'
''In Brook's Gazetteer, an American work of authority , the width of the
Potomac, at its entrance into the Chesapeake, is given at seven and a half
miles.
'* In the same work, the month of the Amazon is given at ' one hundred
and fifty-nine miles broad.'
"In Harper's Gazetteer, (Edition of 1855,) the width of the Severn, at
its Junction with the British Channel, is given at ten miles across. That
of the Humber, at its mouth, at six or seven miles ; and that of the Thames,
at its junction with the North Sea at the Nore, between the Isle of Sheppey
and Foulness Point, or between ShcernesS and Southend, at fifteen miles
across. And the Saint Lawrence, in two different places in the same work,
is described as entering * the Gulf of Saint Lawrence at Gasp6 Point, by a
mouth one hundred miles wide.' And also that ' at its mouth, the Gulf
from Cape Rosier to Mingan Settlement in Labrador, is one hundred and
five miles in length.'
''Thus, width is no objection. The real entrance to the Miramichi is,
however, but one and a half miles wide. Captain Bayfield may, appar-
ently, be cited by both Commissioners as authority. He says, pages 30,
31 and 32:—
'*' Miramichi Bay is nearly fourteen miles wide from the sand-bars off
Point Blackland to Point Escuminac beacon, and six and a half miles deep
from that line across its mouth to the main entrance of the Miramichi,
between Portage and Fox Islands. The bay is formed by a semicircular
range of low sandy islands, between which there are three small passages
and one main or ship channel leading into the inner bay or estuary of the
Miramichi. The Negowac Gully, between the sand-bar of the same name
and a small one to the S. W., is 280 fathoms wide and 3 fathoms deep ; but
a sandy bar of the usual mutable character lies off it, nearly a mile to the
S. S. £., and had about 9 feet over it at low water at the time of our sur-
vey. Within the Gully, a very narrow channel only fit for boats or very
small craft, leads westward up the inner bay. The shoal water extends
li miles off this gully, but there is excellent warning by the lead here and
everywhere in this bay, as will be seen by the chart. Shoals nearly dry
at low water extend from the Negowac Gully to Portage Island, a distance
of 1^ miles to the 8. W. Portage Island is 4 miles long, in a S. W. by S.
direction ; narrow, low, and partially wooded with small spruce trees and
bushes. The ship channel between this Island and Fox Island, is 1^ miles
wide.
*' 'Fox Island. 3f miles long, in a S. S. E. direction, is narrow and par-
tially wooded; like Portage Island, it is formed of parallel ranges of sand
hills which contain imbedded drift timber, and have evidently been thrown
up by the sea in the course of ages. Tbese islands are merely sand-bars
on a large scale, and nowhere rise higher than 50 feet above tht* sea. They
are incapable of agricultural cultivation, but yet they abound in plants
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470 INTERNATIONAL ARBITRATIONS.
and Bhrabs suited to such a locality, and in wild frnits, snch as the blae-
berry, strawberry and raspberry. Wild fowl of varions kinds are also
plentifal in their season ; and so also are salmon, which are taken in nets
and weirs along the beaches outside the island, as well as in the gnllies.
'* * The next and last of these islands is Huckleberry Island, which is
nearly 1^ miles long, in a S. E. direction. Fox Gully, between Huckle-
berry and Fox Islands, is about 150 fathoms wide at high water, and from
2 to 2^ fathoms deep, but tlu^re is a bar outside with 7 feet at low water.
Huckleberry Gully, between the island of the same name and the main-
land, is about 200 fathoms wide, but is not quite so deep as Fox Gully.
They are both only tit for boats or very small craft; and the channels
leading from them to the westward, up a bay of the main within Huckle-
berry Island, or across to the French river and village, are narrow and
intricate, between flats of sand, mud, and eel-grass, and with only water
enough for boats. Six and a quarter miles from the Huckleberry Gaily,
along the low shore of the mainland, in an £. S. E. ^ E. direction, brinies
us to the beacon at Point Escnmenac, and completes the circuit of the bay.
** * The Bar of Miramichi commences from the S. E. end of Portage Island,
and extends across the main entrance and parallel to Fox Island, nearly 6
miles in a S. E. by S. direction. It consists of sand, and has not more than
a foot or two of water over it in some parts, at low spring tides.'
"He also says, pp. 37 and 39: —
"'The Inner Bay of Miramichi is of great extent, being about thirteen
miles long from its entrance at Fox Island to Sheldrake Island (where the
river may properly be said to commence), and 7 or 8 miles wide. The
depth of water across the bay is sufficient for the largest vessels that can
cross the inner bar, being 2f fathoms at low water in ordinary spring-
tides, with muddy bottom.
" 'Sheldrake Island lies ofi^ Napan Point, at the distance of rather more
than 3-quartcrs of a mile, and bears from Point Cheva) N. W. by W. If miles.
Shallow water extends far off this island in every direction, westward to
Bartiboque Island, and eastward to Oak Point. It also sweeps round
to the south and southeast, so as to leave only a very narrow channel
between it and the shoal, which fills Napan Bay, and trending away to the
eastward past Point Cheval, forms the Middle Ground alrea<ly mentioned.
Murdoch Spit and Murdoch Point are two sandy points, a third of a mile
apart, with a cove between them, and about a mile W. S. W. of Sheldrake
Island. The entrance of Miramichi River is 3-quarter8 of a mile wide
between these points and Moody Point, which has a small Indian church
upon it, and is the east point of entrance of Bartiboque River, a mile
N. W. by W. * W. from Sheldrake Island.'
" But a strong, and I may add, a conclusive point in showing the pas-
sage between Fox and Portage Island, to be the main entrance, or mouth of
the Miramichi, is the peculiar action of the tides. It is thus described by
Bayfield, p. 35:—
" ' The stream of the tides is not strong in the open bay outside the bar
of Miramichi. The flood draws in towards the entrance as into a funnel,
coming both from the N. E. and S. E. alougsliora of Tabisintac, as well as
from Point Escnmenac. It sets fairly through the ship channel aX the
rate of about 1^ knots at the black buoy, increasing to 2 or 2^ knots in
Digitized by LjOOQIC
BESERVED FISHERIES. 471
strong Bpring-tides between Portage and Fox Islands, where it is strongest.
The principal part of the stream continues to flow westward^ in the direc-
tion of the buoys of the Horse Shoe, although some part of it flows to the
northward between that shoal and Portage Island.'
'The etfect of this is thus singularly felt. A boat leaving Negouac to
ascend to Miramichi with the flood tide is absolutely met by the tide
flowing northerly against it nntil coming abreast of the Horse Shoe Shoal,
or in the line of the main entrance; and the boat at the Horse Shoe
Shoal, steering for Negouac, with the ebb tide making, would have the
current against it, though Negouac is on a line as far seaward as the en-
trance to the Portage and Fox Islands; thus showing conclusively that
the main inlet and outlet of the tidal waters, to and from the mouth or
entrance of the Miramichi, is between Portage and Fox Islands.
" As such Arbitrator or Umpire, I decide that a line connecting Fox and
Portage Islands, (marked in red. Plan No. 2, Record Book No. 2,) desig-
nates the month of the Miramichi River.
** Dated at Saint John, in the Province of New-Brunswick, this 8th day
of AprU, A. D. 1K)8.
"John Hamilton Gray.
"the buctouchk.
"I, the undersigned. Arbitrator or Umpire under the Reciprocity Treaty,
concluded and signed at VVatihington on the 5th day of June, A. D. 1854,
having proceeded to and examined the month of the River Buctouche,
in the Province of New Brunswick, concerning which a diilerence of
opinion had arisen between Her Britannic Majesty's Commissioner and
the Commissioner of the United States, as disclosed in Record No. 1 of
their proceedings. With reference to the Bnctouche it will be seen by
Record No. 1: — 'Her Majesty's Commissioner claims, that a line from
Glover's Point to the southern extremity of the Sand Bar, marked in red
on the Plan No. 1, designates the mouth of the said River Bnctouche.
The United States commissioner claims, that a line from Chapel Point,
bearing South 4^ West (magnetic), marked in blue on said Plan No. 1,
designates the mouth of said River.'
** On the subject of this River the United States Commissioner addresses
me as follows: — 'The red line extending from "Glover's Point," to the
Point of the "Sand Bar," is the line marked by Her Majesty's Commis-
sioner as designating the mouth of the River; in that line I could not
concur, because it excludes from the common right of fishing the whole of
Buctouche Harbour in contravention of the express words of the Treaty.'
* If it had been the duty and office of the Commissioners to indicate the
point which constituted the month of the Harbour, I should have been
disposed to acquiesce in the point and line thus denoted; but from the
proposition that it marks the entrance of these Rivers, or any one of them,
into the Sea, or Bay, or Harbour, and constitutes their mouth, I entirely
diasent.'
"With the views I have already expressed that the mouth of a River
does not lose its treaty character because it constitutes a harbour, it be-
comes important to determine which is the principal agent in forming
this harbour, the River or the Seaf If it is a mere indentation of the
Digitized by LjOOQIC
472 INTERNATIONAL ARBITRATIONS.
coast, formed by the sea, a creek, a bay, or harbour, unformed bj- and
iincoDnected with any River, one of those indentations in a coast, indebted
to the sea mainly for its waters, then plainly it is not intended or entitled
to be reserved ; but if on the contrary it is formed by the escape of waters
from the interior, by a River seeking its outlet to the deep, showing by
the width and depth of its channel at low water that it is not to the sea
it owes its formation, then plainly it is the month of a River and intended
to be reserved.
''Captain Bayfield describes the Buctonche as follows, pp. 53 and 54: —
'^'Bactouche Roadstead, off the entrance of Bnctouche River and in
the widest part of the channel within the outer bar, is perfectly safe for a
vessel with good anchors and cables; the ground being a stiff tenacious
clay, and the outer bar preventing any very heavy sea from coming into
the anchorage. It is here that vessels, of too great draft of water to
enter the river, lie moored to take in cargoes of lumber.
** ' Bnctouche River enters the sea to the S. £., through the shallow bay
within the Bnctouche sand-bar, as will be seen in the chart. The two white
beacons which I have mentioned, as pointing out the best anchorage in the
roadstead, are intended to lead in over the bar of sand and flat sandstone,
in the best water, namely, 8 feet at low water and 12 feet at high water in
ordinary spring tides. But the channel is so narrow, intricate, and encum-
bered with oyster beds, that written directions are as useless as the assist-
ance of a pilot is absolutely necessary to take a vessel safely into the River.
Within the bar is a wide part of the channel in which vessels may ride
safely in 2^ and 3 fathoms over mud bottom ; but off Giddis Point the
channel becomes as difficult, narrow, and shallow as at the bar. It is in
its course through the bay that the Buctonche is so shallow and intricate;
higher up its channel being free from obstruction, and in some places 5
fathoms deep. Having crossed the bar, a vessel may ascend about 10 miles
further, and boats 13 or 14 miles, to where the tide water ends.'
" By an examination of the channel we find miles up this River a deep
continuous channel of twelve, fifteen, twenty, twenty-four, and thirty feet,
down to Priest Point, varying from eighteen to twenty-four feet to Giddis
Point, and thence to a line drawn across from the Sand Bar to Glover's
Point, from seven to twenty feet, but of greater width. On the outside of
this channel, which is clearly defined, and between the Sand Bar and the
channel, we find mud fiats with dry patches and oyster beds, 'flats of mud
and ell grass, with dry patches at low water;' with depths from Priest
Point to the Sand Bar, varying from four to six feet, and from the channel
off Giddis Point to the bar, from one foot to three. On the other side of
the channel, from Priest Point and Giddis Point we find 'flats of mud and
weeds, with dry patches and oyster beds.' What has given depth and
breadth to this channel? The tide rises in this vicinity about four feet;
would that rise create a channel of the average depth above named? Can
there be any doubt that it is created by the great body of the river water
finding its way to the Seat The line from * Glover's Point to the Southern
extremity of the Sand Bar, marked in red on plan No. 1,' is claimed by Her
Majesty's Commissioner as the mouth of the River, and admitted by the
United States Commissioner as the month of the harbour; but if there
were no River here, would there be any harbonr at all f I think not, and
this fine therefore, while it constitutes the mouth of the harbour, also con-
stitutes the mouth of the River.
Digitized by LjOOQIC
BESERVED FISHERIES. 473
''This eonclasion is consonant with the conclusion at which the Com-
missioners themselves arrived, in the ciises of tbe Elliot and Montaj^ue
Rivers in Prince Edward Island, as shown by Records Nos. 9 and 10. The
harbours of Charlottetown and Georgetown are clearly within the lines
they have marked and designated as the months of those Rivers respec-
tively, and thus within the lines of exclnsion ; but if the express words of
the Treaty gave a right to such harbours, because ' harbours/ then why
did the Commissioners exclude them f And why should not the same prin-
ciple which governed the commissioners in their decision with regard to
those * harbours/ not (»ic) also govern with regard to Buctouche Harbour?
"As Arbitrator or Umpire, -I decide that aline from Glover's Point to
the Southern extremity of the Sand Bar, marked in red on Plan No. 1, in
Record No. 2, designates the month of the River Buctouche.
"Dated at Saint John, in the Province, of New-Brunswick, this 8th day
ofApril, A. D.1858.
".John Hamilton Gray.
"It may not come within the exact line of my duty, but I cannot for-
bear remarking, that the true benefits of this Treaty can only be realized
to the inhabitants of both countries by a course of mutual forbearance,
and enlightened liberality. Captious objections, fancied violations and
insults, should be discountenanced; and above all, there should be an
abstinence from attributing to either nation or ])eoplo, as a national feel-
ing, the spirit of aggression which may occasionally lead individuals to
act in direct contravention of its terms. Every friend of humanity would
regret further misunderstanding between Great Britain and the United
States. The march of improvement which is to bring the broad regions
of North America, between the Atlantic and Pacific, within the pale of
civilization, is committed by Providence to their direction ; fearful will
be the responsibility of that nation which mars so noble a heritage.
" Dated at Saint John, in the Province of New-Brunswick, this 8th day
of April, 1858.
"John Hamilton Gray."
On September 19, 1855, tbe commissioners
DeoUrations of the p^^j.^^^ tbeir disagreement as to tbe mouth
of tbe Buctouche Eiver. Tbeir last award,
wbich was made February 13, 1866, related to certain rivers in
Newfoundland. Tbe declarations of tbe commissioners, wbicb
include tbeir entries in the umpire cases as well as tbeir
awards, are as follows :
•*N0. 3.'— THE KIVER PISCATAQUA.
"We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, signed at Washington on
the 5th of June, A. D. 1854, having examined the Piscataqua River, on
» Declarations Nos. 1 and 2 are given («Mpro, 451-452,) in the umpire's
awards. The copy given in the awards is the British copy, in which the
British commissioner's contention and name have precedence. In the
United States copy of the declarations the United States coniuiissioner^s
contention and name have ))reoe(lence. It is superfluous to say that there
is no difierenoe in the substance of the declarations.
Digitized by LjOOQIC
474 INTERKATIONAL ARBITRATIONS.
the Coast of the United States, (the said River forming the boamlarjr
between the States of Maine and New Ham[)8hire,) Do hereby agree and
decide, th:it a line drawn from Frost Point to the Southern end of Wood
Island, and thence, to the Main Land, the said lino bearing N., 68"^ 45' £.,
(magnetic) an shown on the Plan 3, Record Book No. 2, shall mark the
mouth, or outer limit of the said Piscataqua River; and that all the waters
within, or to the westward of such line, shall be reserved and excluded
from the common right of fishing therein, under the first and second
articles of the Treaty aforesaid. — Dated at Boston, United States, on this
26th day of June, A. D. 1856.
*'G. G. CusHMAN, U, S, Commisnaner.
" M. H. Pkrlry, H, M. CommisaioiuT.
NO. 4.— THE RIVER MERRIMACK.
''We, the nndersigned, Comuiisaioners under the Reciprocity Treaty
between the United States and Great Britain, signed at Washington on.
the 5th day of June, A. D. 1854, having examined the Merrimack River, on
the Coast of the United States, the mouth of the said River being within
the limits of the State of Massachusetts, Do hereby agree and decide,
that a line bearing North, 10^ £., magnetic, from the easternmost of the
two Light Houses standing upon Plum Island, on the South side of the en-
trance to the said River, as shown on the Plan 5, Record Book No. 2, shall
mark the mouth or other limit of the said Merrimark River; and that all
the waters within, or to the Westward of such line, shall be reserved anil
excluded from the common right of fishing therein, under the first and
second articles of the Treaty aforesaid. — Dated at Boston, United States,
on this 26th day of June, A. D. 1856.
"G. G. CusHMAN, U, S. Commisaianer.
''M. H. Perlky, H. M. CommiMioner.
•'NO. S.-THE RIVER IPSWICH.
'*We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, signed at Washington on
the 5th of June, A. D. 1854, having examined the Ipswich River, on the
Coast of the United States, the said River being within the limits of
the State of Massachusetts, Do hereby agree and decide, that a line bear-
ing North, 30° 46' West, (magnetic) from the South point of the entrance
to said River, as shown on the Plan No. 5, Record Book, No. 2, shall mark
the month or outer limit of the said Ipswich River; and that all the
waters within, or to the Westward of such line, shall be reserved and ex-
cluded from the common right of fishing therein, under the first and second
articles of the treaty aforesaid. — Dated at Boston, United States, this 26th
day of June, A. D. 1856.
"G. G. CcsnMAN, U, S. Commi8$ioner.
" M. H. Perlky, ff. M, Commissioner.
"NO. 6.-THE RIVER TAUNTON.
*'We, the undersigned. Commissioners under the Reciprocity Treaty
between the United States and Great Britain, signed at Washington on
the 5th day of June, A. D. 1854, having examined the Taunton River,
emptying into Narragansett Bay, Coast of the United States, the said
Digitized by V^OOQlC
RESERVED FISHERIES. 475
River being within the limits of the State of MassachnsettSy Do hereby
agree and decide, that a line bearing Northwest and Southeast, (magnetic,)
drawn through the White Beacon, standiug nearlymidway of the entrance
to said River, and in front of the Sonthern end of the Town of Fall River,
)iH shown on the Plan 6, Record Hook No. 2, shall mark the mouth or outer
limit of the said Taunton River; and that all the waters within, or to the
northward of snch line, shall be reserved and excluded from the common
right of fishing therein, under the first and second articles of the Treaty
aforesaid. — Dated at Boston, United States, this 30th day of June, A. D. 1856.
"M. H. Pkkley, H. M, Commi8Bianer.
'*G. G. CusHMAN, U.S, Commissioner,
"NO. 7.-THE RIVER SEEKONK, OR PROVIDENCE.
"We, the undersigned, CommisKionerH under the Reciprocity Treaty
between the United States and Great Britain, signed at Washington on
the 5th day of June, A. D. 1854, having examined the Seekonk or Provi-
dence River, empyting into Narragansett Bay, Coast of the United States,
the entrance to said River being within the limits of the State of Rhode
Island, Do hereby agree and decide, that a line drawn from the Light
House on Nayatt Point, to Conmimicnt Point, bearing S., 70^ W., (mag-
netic) as shown on the Plan 6, Record Book No. 2, shall mark the month
or outer limit of the said Seekonk or Providence River; and that all the
waters within, or to the northward of such line, shall be retserved and
excluded from the common right of fishing therein, under the first and
second articles of the aforesaid Treaty. — Dated at Boston, United States,
on this 30th day of June, A. D. 1856.
'' G. G. CusHMAN, U, S. Commissioner,
" M. H. Pkrley, H, M. Commissioner.
"NO. 8— THE RIVER DUNK.
"We, the nndersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, signed at Washington on
tlie 5th day of June, A. D. 1854, having examined the Dunk River, empty-
ing into the Bedegue Bay, on the Coast of Prince Edward Island, one of
the British North American Colonies, Do hereby agree and decide, that a
line bearing north, (magnetic,) drawn from the Northern end of Indian
Island to Green Shore or Wharf, as shown in the Plan 7, Record Book No.
2, shall mark the month or outer limit of the said Dunk River; and that
all the waters within, or to the Eastward of such line, shall be reserved
and excluded from the common right of fishing therein, under the first and
second articles of the Treaty aforesaid. — Dated at Bangor, in the State of
Maine, United States, this 27th day of September, A. D. 1856.
"G. G. CusHMAN, r. S, Commissioner.
" M. H. Perley, H. M, Commissioner.
" NO. 12.«— CHOICE OF UMPIRE.
"We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, signed at Washington on the
5th day of June, A. D. 1854, having met at £a«tport, in the State of Maine,
' Declarations 9, 10, and 11 are given (supra, 462) in the awards of the
umpire.
Digitized by LjOOQIC
476 INTERNATIONAL ARBITRATIONS.
for tho purpose of choosing an Arbitrator or Umpire nnder the Ist Article
of the said Treaty to decide npon the d i saj^reemen t bet ween ns relative to
the River Buctouche, of which record was made on the 19th day of Sep-
tember A. D. 1855; as also upon the disagreement between ns relative lo
the River Miramichi, of which record w^as made on the 27th day of Sep-
tember A. D. 1855 : and likewise upon the disagreement between ns relative
to the Rivers of Prince Edward Island, of which record was made on the
27th day of September A. D. 1856; and each of us, the said Commissioners,
having named a person to act as such Arbitrator or Umpire, and not agree-
ing thereupon, it was determined by lot, as provided by the said Treaty,
that the Hon. John Hamilton Gray of St. John, New Brunswick, should
be such Arbitrator or Umpire to decide as aforesaid, of which record is
maAe accordingly. — Dated at Eastport, in the State of Maine, this 20th
dayof July, A. D. 1857.
"G. G. CUSHMAN, U. S. CammismoMT.
*'M. H. Perley, H. M. Commissioner.
"NO. 13.-0ATH OF THE UMPIRE.
''I, The Honorable John Hamilton Gray of the City of Saint John, in
the Province of New Branswick, the arbitrator and Umpire duly chosen
imder the first Article of the Treaty concluded between Great Britain and
the United States on the fifth day of June, in the year of Our Lord, One
Thousand eight hundred and fifty-four, do hereby solemnly declare, That
I will impartially and carefully examine and decide, to the best of my
judgment and according to justice and equity, without fear, favor, or
affection, to my own country, upon all such differences or disagreements
between the Commissioners under the said Treaty, as shall be submitted
to me ; and I make this Solemn declaration, as directed by the first Article
of the Said Treaty, and in accordance therewith.
"J. H. Gray.
"Subscribed in our presence and Sworn before Us, at the City of Saint
John in the Province of New Brunswick this Twenty Second day of July,
A. i). 1857.
"W. A. Smith,
'* Mayor of the City of Saint John, Prorince of New JSrunsuick.
"C. Whitakkr,
" U, *Sf. Consul St, John, X, B,
"XO. 14— RIVERS RISTIGOrCHE, BATHURST. POKEMOUCHE. TRACADIE,
TABCSINTAC, KOUCHIBOUCIDAC. RICHIBUCTO, PETICODIAC, SHEPODY.
SACKVILLE, MUSQUASH, LEPREAU, MAGAGUADAVIC, MlNUDIE.
"We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June A. D. 1854, having examined the River
Ristigouche, forming the boundary between Canada East and New Bruns-
wick; and also the Rivers Bathurst, Pokeniouche, North and South Tracadie,
Tabusintac, Kouchibouguac, Richibucto, Peticodiac, Shepody, Sackvilie,
Musquash, Lepreau and Magaguadavic, in the Province of New Bruns-
wick ; and also the Minndie River in the Province of Nova Scotia, do hereby
agree and decide that tho following described lines, as shown on Plans 8,
Digitized by LjOOQIC
RESERVED FISHERIES. 477
9, 10, and 11, Record Book No. 2^ shall mark the months or outer limits of
the said rivers, and that all the waters within said lines shall be reserved
and excladed from the common liberty of fishing therein, nnder the Ist
and 2d articles of the Treaty aforesaid.
^*Ri$Hg(mche River, — A line connecting Pt. Maguacha and Bonami rocks,
as drawn on Plan 8.
"Bathurai Biver. — A line connecting Pt. Alston and Pt Carron, as drawn
on Plan 8.
**FokeiHouche River. — A line across Pokemonche Gully, connecting the
sand bars, as drawn on Plan 8.
**Traeadie RiverSf North and South. — Lines across Tracadie North Gully
and Tracadie South Gully, connecting the sand bars, as drawn on Plan 8.
** TaJtusintao River. — A line across the Tabusintac Gully, connecting the
sand bars, as drawn on Plan 8.
"Kouchibouguac River. — A line across Kouchibonguac Gully, connecting
the sand bars, as drawn on Plan 9.
**Richibucto River. — A line drawn South, magnetic, from the North Bea-
con, on the end of Northern sand bar, as shown on Plan 9.
** Peiioodiiio River. — A line bearing S. 13" W. magnetic, and connecting
Cape Demoiselle and Pt. Marowgonin, as drawn on Plan 10.
**Shepody River. — A line from the northern side of Mary's Pt., bearing
N. 45" £. magnetic, to the point opposite, as drawn on Plan 10.
**SackvilJe River. — A line bearing S. 5P £. magnetic, from Pt. Aulao, as
drawn on Plan 10.
**MuBqu(uh River, — A line from Gooseberry Island Pt., bearing S. 73° E.
magnetic, to the western extremity of the point opposite, as drawn on
Plan 11.
**Lepreau River. — A line bearing North, magnetic, from the point of the
sand bar, on the Southern side of the River, to the opposite shore, as drawn
on Plan 11.
**MagagHadavic River. — Aline connecting McDermotts Head on the south
side and Mari's Pt. on the North shore, as drawn on Plan 11.
**Minud%e River, — A line from Pt. Minudie, bearing East, magnetic to the
opposite shore, as drawn on Plan 10.
*'Dated at Boston, in the State of Massachusetts, this seventh day of
October A. D. 1857.
**G. G. CusHMAN, U. S. CommisHoner,
*^ H. M. Perley, H, M, Commisaioner,
"NO. 15.-EIVERS COCAGNE, SHEDIAC, AND ST. JOHN.
"We, the undersigned. Commissioners, respectively on the part of the
United States and Great Britain, under the Reciprocity Treaty concluded
and signed at Washington on the 5th day of June A. D. 1854, having ex-
amined the Rivers Cooagne, Shediac and St. John, in the Province of New
Brunswick, are unable to agree upon the lines defining the mouths of said
Rivers, and of this disagreement, record is hereby made accordingly, and
as follows:
*^Cocagne River, — The United States Commissioner claims that a line
commencing at the end of Longs Wharf, and extending across the water to
the opposite shore, and in the direction of the Roman Catholic Church, and
Digitized by LjOOQIC
478 INTERNATIONAL ARBITRATIONS.
having N. 16^ 30' W. magnetic^ as drawn on Plan 12, Record Book No. 2,
designates the month of the Cocagne River.
** H. M. CommiMioner claims that a line connecting Renouard Pt. and
Pacqnet Pt. aa shown on said Plan 12, designated the month of the Cocagne
River.
**Shediac River, — The United States Commissioner claims that a line drawn
from the northern extremity of Porier Pt. marked A on Plan 13, Record
Book No. 2, to the opposite point, marked B, the said line having N. 28° E.
magnetic, designates the mouth of the Shediao River.
'' H. M. Commissioner claims that a line connecting Chene Pt. and Snake
Pt. as shown on said Plan 13, designates the month of the Shediac River.
*' St, John River. — The United States Commissioner claims that a line
connecting Negro Pt. and Red Head, as drawn on Plan 14, Record Book
No. 2, designates the mouth of the St. John River.
** H. M. Commissioner claims that a line connecting Sheldon Pt. and Inner
Mispeck Pt., as shown on said Plan 14, designates the mouth of the St.
John River..
<' Dated at Boston, in the State of Massachusetts, this seventh day of
October, A. D. 1857.
** G. G. CusiiMAN, U, S, Commiisioner,
'*M. H. Perley, H, M, CommiMioner,
•'2^0. 16.-THB RIVEKS SACO, KENNEBECK, PENOBSCOT, UNION, AND
MACHIAS, IN THE STATE OF MAINE.
<'We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, signed at Washington on
the 5th day of .June, A. D. 1854, having examined the Rivers Saco, Ken-
nebeck, Penobscot, Union, and Machias, the said Rivers being within the
limits of the State of Maine, United States of America, do hereby agree
and decide, that the following described lines, as shown on Plans 15, 16,
17, and 18, Record Book No. 2, shall mark the mouths or outer limits of the
said Rivers; and that all the waters within said lines shall be reserved
and excluded i'rom the common liberty of fishing therein, under the first
and second articles of the Treaty aforesaid.
•*«Soco River. — A line bearing S., 5^^ E., (magnetic) from Hotel Point to
the opposite shore, as drawn on Plan 15, Record Book No. 2.
*^Kennebeck River, — A line bearing S., 85^^ E., (magnetic) from the
Southern extremity of Hunnewell's Point to the Southern extremity of
Stage Island, as drawn on Plan 16, Record Book No. 2.
'^Penobscot River,— A line bearing North, 82" \V., (magnetic) from Old
Fort Point to the point on the opposite shore, as drawn on Plan 17, Reoord
Book No. 2.
^^ Union River, — A line bearing South, 87" E., (magnetic) from Wey-
mouth Point to the opposite point, as drawn on Plan 17, Record Book
No. 2.
^* Machias River. — A line bearing North 50"^ E., (magnetic) from Birrh
Point to the opposite point, as drawn on Plan 18, Record Book No. 2.
" Dated at Portland, in the State of Maine, this 5th day of June,
A. D. 1858.
"G. (}. CusHMAX, r. S. CommiJtgionrr.
**}i, M. Perley, H, M, Commimoner.
Digitized by LjOOQ IC
RESERVED FISHERIES. 479
"NO. 17.— THE RIVERS SALMON, SHUBENACADIE, AVON, ANDCORNWALLIS,
IN THE PROVINCE OF NOVA SCOTIA.
"We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 18.34, having examined the
River Salmon in the County of Col cheister; the River Shubenacadie, the
boundary between the Counties of Colchester and Hants; the River Avon,
iu the County of Hants ; and the River Cornwall is, in the County of King\
all being within the limits of the Province of Nova Scotia ; do hereby agree
and decide, that the following described Hues, as shown on Plan 19, Rec-
ord Book No. 2, shall mark the mouths or outer limits of said Rivers; .nnd
that all the waters within said lines shall be reserved and excluded from
the common right of fishing therein, under the first and second articles of
the treaty aforesaid.
'*Salmon River. — A line bearing North, (magnetic) from the Southern side
of the River to the opposite shore, as drawn on Plan 19, Record Book No. 2.
** Shubenacadie River,— k line bearing 8. 88° W., (magnetic) from the
Eastern side of the River to the opposite shore, as drawn on Plan 19, Rec-
ord Book No. 2.
**Avon River. — A line from Horton Bluff, bearing N. 76 E., (magnetic) to
Indian Point, as drawn on I'lan 19, Record Book No. 2.
**ComwalU8 Rirer. — A line from the Point on the Southern side of the
River to the opposite shore, bearing N., 27° W., (magnetic) as drawn on
Plan 19, Record Book No. 2.
" Dated at the City of New York, this 18th day of November, A. D. 1858.
** Benj'n WiGGiN, U. S. CommisHoner.
" H. M. Perley, //. M. Commissioner.
•NO. 18.— THE RITERS SISSIBOO AND TUSKEET, IN THE PROVINCE OF
NOVA SCOTIA.
''We, the undersigned. Commissioners under the Reciprocity Treaty
between the United States and Groat Britain, concluded and signed at
Washington on the 5th day of June, A. J). 1854, having examined the
River Sissiboo, in the County of Digby ; and the River Tnskect, in the
County of Yarmouth, both being within the limits of the Province of
Nova Scotia, do hereby agree and decide, that the following described
lines, as shown on Plan 20, Record Book No. 2, shall mark the mouths or
outer limits of said Rivers; and that all the waters within said lines shall
be reserved and excluded from the common right of fishing therein, under •
the first and second articles of the Treaty aforesaid.
**Sis8ihoo River.— A line from the Eastern side of the River, bearing S.,
39^ W., (magnetic) to the opposite shore, as drawn on Plan 20, Record
Book No. 2.
*' Tuskeet River.— A line from the Southern extremity of the Island, situ-
ated at the *' Narrows,'' bearing N., 86^ E., (magnetic) as drawn on Plan 20,
Record Book No. 2.
"Dated at the City of New York, this 18th day of November, A. 1). 18.58.
*• Bf.n.i'n Wiggix, U. S. CommiHsioner.
*'M. H. Pehley, ff. M. Commissioner,
Digitized by LjOOQIC
480 INTERNATIONAL ARBITRATIONS.
"NO. 19— THE RIVER LIVERPOOL, IN THE PROVINCE OF NOVA SCOTIA.
** We, the undersigned, CommiHBioners under the Reciprocity Treaty be-
tween Great Britain and the IJuited States, concluded and signed at Wash-
ington on the 5th day of June, A. IT. 1854, having examined the Liverpool
River, in the County of Queen's, I^ovince of Nova Scotia, do hereby
agree and decide, that a line from Fort Point bearing North (magnetic)
to the opposite shore, as shown on Plan 21, Record Book No. 2, shall mark
the mouth or outer limit of the said Liverpool River; and that all the
waters within, or to the westward of said line, shall be reserved and ex-
cluded from the Common right of lishiug therein, under the first and
second articles of the Treaty aforesaid.
''Dated at the City of New York, this 18th day of November, A. D. 1858.
"Benj'x Wiogin, U, S, Commi98i4m€r.
"M. H. Perley, H. M. Commistumer,
"NO. 20.— THE RIVERS LE HAVE AND GOLD, IN THE PROVINCE OF NOVA
SCOTIA.
*'We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examined the
rivers Le Have and Gold, in the County of Luenburg, Province of Nova
Scotia, do hereby agree and decide, that the foliow^ing described lines, as
shown on Plan 22, Record Book No. 2, shall mark the months or oater
limits of said Rivers; and that all the waters within, or to the North wanl
of said lines, shall be reserve<l and excluded from the common right of
ilshiug therein, under the first and second articles of the treaty aforesaid.
*'Le Hare River. — A line bearing N. 83^ W. (magnetic) from the Point
on the Eastern side of the River to the opposite shore, as drawn on Plan
22, Record Book No. 2.
" Gold River. — A line bearing >Vest, (magnetic) from the Point on the
Kastern side of the River to tbe opposite shore, as drawn on Plan 22,
Reiord Book No. 2.
"Dated at the City of New York, this 18ih day of November, A. D. 1858.
*'Benj'n Wiggin, r. S. C<niimi$9ioner.
*'H. M. Pebley, H. M, Commiationer.
" NO. 21.-THE RIVER SAINT MARY'S, IN THE PROVINCE OF NOVA SCOTIA.
''We, the undersigned. Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. I). 1854, having examined the River
Saint Mary's, in the County of Guysborough, Province of Nova Scotia, do
hereby agree and decide, that a line bearing S., 48^ W., (magnetic) drawn
from a Point on the Eastern side of the River to the opposite shore, as
shown on Plan 23, Record Book, No. 2, sliall mark the month or outer limit
of the said River; and that all the waters within, or to the Northward of
said line, shall be reserved and excluded from the common right of fishing
therein, under the first and second articles of the Treaty aforesaid.
** Dated at the City of Now York, this 18th day of November, 1858.
•'Bkx.i'n Wiggin, U. S, Commiasioner.
'*M. H. Pekley, if. if. Commitaioner.
Digitized by LjOOQIC
KESKKVED FISHERIES. 481
'•NO. 22.— THE RIVER PICTOU, IN THE PROVINCE OF NOVA SCOTIA.
•'We, tbo uudcrsigued, Comuiissiouers under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A/D. 1864, having examined the River
L*ictou, in the County of Pictou, Province of Nova Scotiu, do hereby agree
and decide, that a line bearing N., 21<^ 45' £., (magnetic) drawn from the
Light House on the South side of the entrance, to the Blulf on the oppo-
site shoie, us shown on the Plan 24, Record Book No. 2, shall mark the
mouth or outer limit of the said River; and that all the waters within, or
to the Westward of said line, shall be reserved and excluded from the
common liberty of fishing therein, under the first and second articles of
the Treaty aforesaid.
"Dated at the City of New York, this 18th day of November, A. D. 1858.
*^ Bknj'n Wiuoin, U, S. Commiaaioner,
" M. H. Pkrley, H. M, Comm%89umer.
"NO. 23— THE RIVER WALLACE, IN THE PROVINCE OF NOVA SCOTIA.
** We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5tb day of June, A. D. 1854, having examiued tlie Wal-
lace River, in the County of Cumberland, Province of Nova Scotia, do
hereby agree and decide, that u line bearing N., 14<^ £., (magnetic) drawn
from Caulfield Point to Palmer Point, as shewn on the Plan 25, Record
Book No. 2, shall mark the mouth or outer limit of the said River; and
that all the waters within, or to the Westward of said line, shall be
reserved and excluded from the common right of fishing therein, under
the first and second articles of the Treaty aforesaid.
" Dated at the City of New York, this 18th day of November, A. D. 1858.
Benj'n Wiggin, U. S. Commissioner,
M. H. Perley, H. M. Commissioner.
"NO. 24.--THE RIVERS PUG WASH AND PHILIP, IN THE PROVINCE OP
NOVA SCOTIA.
"We, the undersi^ruetl, Commissioners under the Reciprocity Treaty
between the United States and (ireut Britain, concluded and signed a
Washington on the 5t]i day of June, A. D. 1854, having examiued the
the Rivers Pug wash and Philip, in the County of Cumberland, Piovince
of Nova Scotia, do hereby agree and decide the following described lines
as shown on Plan 26, Record Book No. 2, shall mark the mouths or outer
limits of the said Rivers; and that all the waters within the said lines,
shall be reserved and excluded from the common right of fishing therein,
under the first and second articles of the Treaty aforesaid.
**Fugwash Hirer. — A line bearing North, 68^ West, (magnetic) connecting
Pinco Point and Fox Point, as drawn on Plan 26, Record Book No. 2.
**Fh%Up River.— A line bearing N. 28' 45' W^., (magnetic), connecting
Bergeman Point and Lewis Head, as drawn on Plan 26, Record Book No. 2.
'* Dated at the City of New York, this 18th day of November, A. D. 1858.
"Bknj'n W^iggin, U. S, Commissioner.
*'M. H. Perley, S. M. Commissions.
5627 31
Digitized by LjOOQIC
482 INTEKNATIONAL AUUITRATIONS.
•'NO. 25.-rHE PAWCATUCK RIVER. TBE BOITNDARV BETWEEN THK
STATES OF CONNECTICUT AND RHODE ISLAND.
"We, the underaignod, Commissioners uuder the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examine<l tbe
Pawcatuck River, separating the States of Connecticut and Rhode Island,
In the United States, do hereby agree and decide, that a line bearing S.,
39^ E., (magnetic) drawn from Pawcatuck Point to the opposite shore, as
shown on Plan 27, Record Book No. 2, shall mark the mouth or outer limit
of the said River; and that all the waters within, or to the Eastward of
said line, shall be reserved and excluded from the common right of ilsbing
therein, under the first and secoud articles of the Treaty aforesaid.
''Dated at the City of New York, this 18th day of November, A. D. 1838.
"Benj'n WiGGiN, U, 8. Commi89ioner.
"M. H. Perley, if. M, CommUsitmer.
"NO. 28.-THE RIVER THAMES, IN THE STATE OF CONNECTICUT, UNITED
STATES.
** We, the undersigned, Coumiissioners under the Reciprocity Treaty
betweeu the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examined the River
Thames, in the State of Connecticut. United States, do hereby agree and
decide, that a line bearing N., 83^ E., (magnetic^ drawn from Eastern Point
to the Light House opposite, as shown ou Plan 28, Record Book No. 2, shall
mark the mouth or outer limit of the said River; and that all the waten
within, or to the Northward of said line, shall be reserved and exclnde<l
from the common right of fishiug therein, under the first and second articlas
of the Treaty aforesaid.
** Dated at the City of New York, this 18th day of Noveml>er, A. D. 1858.
**Bknj'n Wiggin, U. S. Commisnouer,
"M. H. Perley, if. M, Commisnoner.
"NO. 27.-COXNECTICITT RIVER, IN THE STATE OF CONNECTICUT.
"We, the undersigned. Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examined the Con-
necticut River, in the State of Connecticut, United States, do hereby agree
and decide, that a line bearing S., 67^ W., (magnetic) drawn from Gris-
wold's Point to the Light House on Lyndes Point, as shown on Plan 29,
Record Book No. 2, shall mark the mouth or outer limit of the said River;
and that all the waters within, or to the N. rthward of said line, shall be
reserved and excluded from the common right of fi'shing therein, under
the first and second articles of the Treaty aforesaid.
•* Dated at the City of New York, this 18th day of November, A. D. 1858.
"Bknj'n Wiggin, V. S. Commisnoiier,
"M. H. Perley, JET. M, Commi8$ion€r,
"NO. 28. -THE HOUSATONIC RIVER, IN THE STATE OF CONNECTICUT.
''We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D; 1854, having examined the
Digitized by LjOOQ IC
UESERVED FISHERIES. 483
HonsatoDic Uiyer iu the State of Connecticut^ United States, do hereby
agree and decide, that a line bearing N., 39^ W., (magnetic) drawn from the
extremity of the Sand Point, on the Eastern side of the River, to the opposite
shore, as shown on Plan 30, Record Book No. 2, shall mark the month or
outer limit of the said River; and that all the waters within, or to the
Northward of said line, shall be reserved and excluded from the common
right of fishing therein, under the first and second articles of the Treaty
aforesaid.
''Dated at the City of New York, this 18th day of November, A. D. 1858.
"Benj'n Wigqin, U, S, CammisHaner.
''M. H. Perley, H, M. CommUsioner,
"NO. 29.— THE RIVERS VERNON, ORWELL, SEAL, CARDIGAN, FORTUNE,
SOURIS. TRYON, WINTER, HUNTER, STANLEY, ELLIS, PIERRE JACQUES,
PERCIVAL, ENMORE, AND HALDIMAND, IN PRINCE EDWARD ISLAND.
"We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, signed at Washington on
the 5th day of June, A. D. 1854, having examined the Rivers Vernon, Or-
well, Seal, Cardigan, Fortune, Souris, Tryon, Winter, Hunter, Stanley,
Ellis, Pierre Jacques, Percival, Enmore, and Haldimand, all lying within
the limits of the Island of Prince Edward, one of the British North American
Provinces, and which said places being the subject of a difference of opin-
ion, as exhibited in Record 11, were referred to an Umpire, appointed in
conformity with the Treaty, and by him decided to be Rivers, do hereby
agree and decide, that the following described lines as shown on Plan 7,
Record Book No. 2, shall mark the mouths or outer limits of said Rivers;
and that all the waters within the said lines, shall be reserved and excluded
from the common right of fishing therein, under the first and second arti-
cles of the Treaty aforesaid.
"Femon, Orwell, Seal. — A line bearing S., 71° 15' E., (magnetic) from
China Point to Port Selkirk, as drawn on Plan 7, Record Book No. 2.
**Cardigan, — ^A line bearing N., 49° 30' E., (magnetic) from Cardigan Point
to the point on the opposite shore, as drawn on Plan 7, Record Book No. 2.
'^Fortune, — A line bearing S.,39° 15' W., (magnetic) connecting the Sand
Spit on the Northern side of entrance, with the opposite shore, as drawn
on Plan 7, Record Book No. 2.
**Souris, — A line bearing N., 65° W., (magnetic) connecting the Sand Spit
on the Eastern side of entrance, with the opposite shore, as drawn on
Plan 7, Record Book No. 2.
** Tryon. — A line bearing S., 51° 15' E., (magnetic) connecting Tryon
Head with Birch Point, as drawn on Plan 7, Record Book No. 2.
" Winter. — A line bearing S., 74° E., (magnetic) connecting the two Sand
Points, as drawn on Plan 7, Record Book No. 2.
'^Hunter. — A line bearing N., 22° 30' W., (magnetic) connecting the West
end of Kustico Island with the opposite point, as drawn on Plan 7, Record
Book No. 2.
^^Stanley. — A line bearing N., 42° W., (magnetic) connecting the Sand
Spit on East side of entrance, with the opposit'C point, as drawn on Plan
7, Record Book No. 2.
*^ Ellis. — A line bearing N., 7° W., (magnetic) connecting Black Point
with Ferry Point, as drawn on Plan 7, Record Book No. 2.
Digitized by LjOOQIC
484 INTERNATIONAL ABBITRATIONS.
"Pien^e Jacques.— A line bearing N., 41° 15' E., (magnetic) connecting
the end of the long Sand Spit with the opposite shore, as drawn on Plan
7, Kecord Book No. 2.
*'Percival. — A line bearing 8., 56° 30' E., (magnetic) connecting Grand
Dike, on the West side of the entrance, with the opposite shore, as drawn
on Plan 7, Kecord Hook No. 2.
'^Enmore, — A line bearing S., 56*^ 30' E., (magnetic) being a prolongation
of the line marking the month of the Percival River, as drawn on Plan 7,
Kecord Book No. 2.
**ffaldimand, — A line bearing N., 67° 15' E., (magnetic) connecting the
Sand Spit on the West side of the -entrance with the opposite shore, as
drawn on Plan 7, Record Book No. 2.
*^ Dated at the City of Boston, United States, this 16th day of November,
A. D. 1860.
''John Hubbard, U. S. CommisHoiter,
'' M. H. Perlby, R. M, CommtMaioHer.
"NO.80.-THB MFRBAT RIVER, IN PRINCE EDWARD ISLAND.
"We, the undersigned. Commissioners under the Reciprocity Treaty
between the United States and Great Britain, signed at Washington on
the 5th day of June, A. D. 1854, having examined the River Murray, in
the Island of Prince Edward, one of the British North American Provinces,
do hereby agree and decide, that a line bearing North, (magnetic) drawn
from the Northern extremity of Old Store Point, on the South side of
entrance, to the end of the Sand Spit on the opposite shore, as shown on
Plan 31, Record Book No. 2, shall mark the mouth or outer limit of said
River; and that, all the waters within, or to the Westward of said line,
shall be reserved und excluded from the common right of fishing therein,
under the first Jind second articles of the treaty aforesaid.
*' Dated at the City of Boston, United States, this 16th day of November,
A. D. 1860.
John Hubbard, U, S. Commissioner,
M. H. Perley, B. M. Commissioner,
"NO. 31.-THE BOUGHTON OR GRAND RIVER, IN PRINCE EDWARD ISLAND.
*'We, the undersigned, Commissioners under the Reciprocity Treaty-
bet ween the United States and Great Britain, signed at Washington on
tiie 5th day of June, A. D. 1854, having examined the Boughton or Grand
River, in the Island of Prince Edward, one of the North American British
Provinces, do hereby agree and decide, that a line bearing N., 4^ £., (mng-
netio) drawn from the end of the Sand Spit, extending North wtirdly from
Solaniler Point, on the South side of the entrance, to the Ferry Road on
the opposite shore, as shown on Plan 32, Record Book No. 2, shall mark
the mouth or outer limit of said River; and that all the waters within, or
to the Westvvard of said line, shall be reserved and excluded from the
common right of fishing therein, under the first and second articles of the
Treaty aforesaid.
•' Dated at the City of Boston, United States, this 16th day of Novemlwr,
A. D. 1860.
'MouN Hubbard, U. S. Commissioner.
"M. II. Perley, H, M, Commissioner,
Digitized by LjOOQIC
RESERVED FISHERIES. 485
••NO. 32— THE FOXLEY RIVER, IN PRINCE EDWARD ISLAND.
"We, the undersigned, Commissioners under the Reciprocity Treaty
hetween the United States and Great Britain, signed at Washington on
the 5th day of June, A. D. 1854, having examined the River Foxley, in the
Island of Prince Edward, one of the British North American Provinces, do
herehy agree and decide, that a line hearing N., 22^ E., (magnetic) drawn
from Kildare Point, on the North side of entrance, to the point on the oppo-
site shore, as shown on Plan 33, Record Book No. 2, shall mark the month
or onter limit of said River; and that all waters within, or to the West-
ward of said line, shall he reserved and excluded from the common right
of fishing therein, under the first and second articles of the Treaty aforesaid.
'' Dated at the City of Boston, United States, this 16th day of November,
1860.
"John Hubbard, CT. S. Commissiofier.
"M. H. Pkrley, iT. Af. CommiaHoner.
"NO. 33.— THE RIVER SYDNEY, IN THE ISLAND OF CAPE BRETON, IN THE
PROVINCE OF NOVA SCOTIA.
''We, the undersigned, Commissioners under the Reciprocity Treaty
hetween the United States and Great Britain, concluded and signed at
Washingtoivon the 5th day of June, A. D. 1854, having examined the River
Sydney, in the Island of Cape Breton, Province of Nova Scotia, do hereby
agree and decide, that a line bearing N., 38" 30' W., (magnetic) drawn
from the Western extremity of the Southeast Bar to the Eastern end of the
Northwest Bar on the opposite shore, as shown on Plan 34, Record Book
No. 2, shall mark the mouth or outer limit of said River; and that all the
waters within, or to the Southward of said line, shall be reserved and
excluded from the common right of fishing therein, under the first and
second articles of the Treaty aforesaid.
'* Dated at the City of Boston, United States, this 16th day of November,
A. D. 1860.
"John Hubbard, U. S, Commiaaioner.
"M. H. Perlky, H, M, Commisaioner,
"NO. 34.-THE RIVERS MIR^ AND GRAND IN THE ISLAND OF CAPE BRE-
TON, PROVINCE OF NOVA SCOTIA.
"We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concladed and signed at
Washington on the 5th day of June, A. D. 1854, having examined the
Rivers Mir^ and Grand, in the Island of Cape Breton, Province of Nova
Scotia, do hereby agree and decide, that the following described lines, as
shown on Plan 35, Record Book No. 2, shall mark the mouths or outer
limits of said Rivers; and that all the waters within said lines shall be
reserved and excluded from the common right of tishing therein, under
the first and second articles of the treaty aforesaid : —
^* Mxr4 River, — k. line bearing N., 44^ E., (magnetic) connecting Mir<^
Point with the point on the opposite shore, as drawn on Plan 35, Record
Book No. 2.
Digitized by LjOOQIC
486 INTERNATIONAL ARBITRATIONS.
" Grand River. — A line bearing N., 53° SC E., (magnetic) connecting
Grand River Point with a point on the opposite shore, as drawn on Plan
35, Record Book No. 2.
^' Dated at the City of Boston, United States,, this 16th day of November,
A. D. 1860.
"John Hubbard, U. S, CommUaioner.
'* M. H. Perley, ff. M. Commissioner.
**HiO. 35.— THE RIVER DES HABITANS, IN THE ISLAND OF CAPE BRETON,
PROVINCE OF NOVA SCOTIA.
"We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examined the
River des Habitans, in the Island of Cape Breton, Province of Nova
Scotia, do hereby agree and decide, that a line bearing S., SfP E., (mag-
netic) drawn from River Point on the West side of .the entrance, to the
point on the opposite shore, as shown on Plan 36, Record Book No. 2,
shall mark the mouth or outer limit of said River; and that all the waters
within, or to the Northward of said line, shall be reserved and exclnded
from the common right of tishing therein, under the first and second
articles of the Treaty aforesaid.
'' Dated at the City of Boston, United States, this 16th day of November,
A. D. 1860.
"John Hubbard, U. S. Commissioner.
"M. H. Perley, H. M. Commissioner.
"NO. 38.— THE RIVER MABOU, IN THE ISLAND OF CAPE BRETON, PROV.
INCE OF NOVA SCOTIA.
"We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examined the
River Mabou, in the Island of Cape Breton, Province of Nova Scotia, do
hereby agree and decide, that a line bearing N., 52^ £., (magnetic) drawn
from the high bluff Point on the South side of entrance, to the southern
extremity of the Sand Point on the opposite shore, as shown on Plan 37,
Record Book No. 2, shall mark the mouth or outer limit of said River;
and that all the waters within, or to the Eastward of said line, shall be
reserved and excluded from the common right of fishing therein, onder the
first and second articles of the Treaty aforesaid.
'* Dated at the City of Boston, United States, the 16th day of November,
A. D. 1860.
"John Hubbard, U. S. Commissioner.
"M. H. Perley, H. M. Commissioner.
"NO. 37— THE RIVER MARGUERITE, IN THE ISLAND OP CAPE BRETON,
PROVINCE OF NOVA SCOTIA.
"We, the nndersignedj Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examined the
River Marguerite, in the Island of Cape Breton, Province of Nova Scotia,
do hereby agree and decide; that a line bearing N., 76^ dfy "W., (magnetic)
Digitized by LjOOQIC
UESERVFJ) FISHEBIES. 487
drawn from the end of the Sand Spit on the East side of the entrance, to
Lawrence's Point on the opposite shore, as shown on Plan 38, Record Book
No. 2, shall mark the month or outer limit of said River; and that all the
waters within, or to the Southward of said line, shall he reserved and
excluded from the common right of fishing therein, under the first and
second articles of the Treaty aforesaid.
" Dated at the City of Boston, United States, this 16th day of November,
A. D. 1860.
''John Hubbard, U. S, Cammi$9ioner,
''M. -H. Pkrlby, H, M, CammisMoner,
"NO. 38— THE RIVER HUDSON, IN THE STATE OF NEW YORK, UNITED
STATES.
"We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examined the
River Hudson, in the State of New York, United States, do hereby agree
and decide, that the two following described lines, to wit : — the first bear-
ing N., 5^ 30' £., (magnetic) drawn from the Northern end of Sandy Hook
to the Eastern extremity of Coney Island ; the second bearing S., 33^ 45' E.,
(magnetic) drawn from Fort Schuyler, on Throg's Neck, to the point on
the opposite shore, as shown on Plan 39, Record Book No. 2, shall mark
respectively the Southern and Eastern months or outer limits of said River;
and that all the waters within, or to the Westward of said lines, shall l>e
reserved and excluded from the oouimon right of fishing therein, under
the first and second articles of the Treaty aforcHaid.
" Dated at the City of Boston, United States, this 17th day of November,
A. D. 1860.
"John Hubbard, U. S. Commiasioner.
'<M. H. Perlby, if. M. Commisnoner,
"NO. 39.— THE RIVER SAINT LAWRENCE, IN THE PROVINCE OF CANADA.
'*We, the undersigned. Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examined the
River Saint Lawrence, in the Province of Canada, do hereby agree and
decide, that a line bearing N.,40o W., (magnetic) connecting Cape Chat
with Point de Monts, as shown on Plan 40, Record Book No. 2, shall mark
the month or outer limit of said River; and that all the waters within, or
to the Westward of said line, shall be reserved and excluded from the
common right of fishing therein, under the first and second articles of the
Treaty aforesaid.
*' Dated at the City of Boston, United States, this 19th day of November,
A. D. 1860.
"John Hubbard, U, S. Commisnoner.
"M. H. Pkrley, iT. M, Commisnotier.
"NO. 40.— THE RIVERS MOISIC, CHATTE, SAINT ANNE, MONT LOUIS, AND
MAGDALEN, PROVINCE OF CANADA.
"We, the undersigned. Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Digitized by LjOOQIC
488 INTERNATIONAL ARBITRATIONS.
Washington on the 5th day of June, 1854, having examined the Riyer
Moisic, on the North coaet, and the Rivers Chatte, Saint Anne, Mont
Ijouis, and Magdalen, on the 8oath coast of the North West Arm of the
Gulf of St. Lawrence, all heing within the limits of the Province of Can-
ada, do hereby agree and decide, that the following described lines, as
shown on Plan 41, Record Book No. 2, eball mark the months or enter
limits of said Rivers; and that all the waters within said lines shall be
reserved and excluded from the common right of fishing therein, under
the first and second articles of the Treaty aforeeaid: —
Afoisic. — A line bearing N., 64° 15' E., (magnetic) connecting Moisic Point
with the Sand Point on the opposite shore, as drawn on Plan 41. Record
Book No. 2.
^'Chatte. — A line bearing N., 82° 15' W., (magnetic) connecting the point
of land on East side of entrance, with the high bank on the opposite
shore, as drawn on Plan 41, Record Book No. 2.
'^ Saint Anne. — A line bearing N., 69° 15' W., (magnetic) connecting the
point of land on the East side of entrance with the high bank on the oppo-
site shore, as drawn on Plan 41, Record Book No. 2.
"ifc/bwi Louis. — A line bearing N., 52° 30' W., (magnetic) connecting the
Sand point on the Eaet side of entrance, with the opposite shore, as
drawn on Plan 41, Record Book No. 2.
^'Magdalen. — A line bearing N., 50° 30' E., (magnetic) connecting the
Sand}' Point on the South side of the entrance, with Cape Magdalen, as
drawn on Plan 41, Record Book No. 2.
" Dated at the City of Boston, United States, this 19th day of November,
A. D. 1860.
"John Hubbard, U. S. CommisHoner.
"M. H. Pkrley, H. M. Commiseioner.
•'NO. 41.— THE RIVERS SAINT JOHN AND MINGAN, ON THE NORTH COAST
OF THE GULF OF SAINT LAWRENCE, AND THE RIVER JUPITER, IN
THE ISLAND OF ANTICOSTI, PROVINCE OF CANADA.
"We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examined the Rivei*e
Saint John and Mingan, on the North Coast of the Gulf of Saint Law-
rence, and the River Jupiter, on the South sidi; of the Island of Anticosti,
all being within the limits of the Province of Canada, do hereby agree
and decide, that the following described lines, as shown on Plan 42, Record
Book No. 2, shall mark the mouths or outer limits of said Rivers; and that
all the waters within said lines shall be reserved and excluded from the
common right of fishing therein, under the first and second articles of
the Treaty aforesaid : —
**SaintJoKn. — A line bearing N., 63O30' W., (magnetic) connecting the
Sand point on the F^ast side of entrance, with the point of high land on
the opposite shore, as drawn on Plan 42, Record Book No. 2.
**Mingan. — ^A line bearing N., 70^ W., (magnetic) connecting Sea Trout
Point with Pouliot Point, as drawn cm Plan 42, Record Book No. 2.
**JupU€r. — A line bearing North, (magnetic) connecting the point of
Digitized by LjOOQIC
RESERVED FISHERIES. 489
beaoh on the South side of entrance, with the rocky blnff on the opposite
shore, as drawn on Plan 42, Record Book No. 2.
** Dated at the City of Boston, United States, this 19th day of November,
A. D. 1860.
"John Hubbard, U. S. CommisHonei:
"M. H. Perlky, H, M. CommUHoner.
"NO. 42— THE RIVER FOX, IN THE ISLAND OF ANTICOSTI, PROVINCE OF
CANADA.
"We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examined the
River Fox, in the Island of Anticasti, Province of Canada, do hereby agree
and decide, that a line bearing North, (magnetic) connecting the main
land with the point of sand on the Northern side of entrance, as shown on
Plan 43, Record Book No. 2, shall mark the month or outer limit of said
River; and that all the waters within, or to the Westward of said line,
shall be reserved and oxclnded from the common right of fishing therein,
under the first and se(H)nd articles of the Treaty aforesaid.
"Dated at the City of Boston, United States, this I9th day of November,
A. D. 1860.
"John Hubbard, U, S, Commisfiioner.
'* M. H. Pkruby, H, M, CommisHtoner.
"NO. 43.-THE RIVERS DARTMOUTH, YORK, AND SAINT JOHN, IN THE
PENINSULA OF GASPfi, PROVINCE OF CANADA.
"We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and Rigned at
Washington on the 5th day of June, A. D. 1854, having examined the
Rivers Dartmouth, York, and Saint John, in the Peninsula of Gaspd, I^ov-
ince of Canada, do hereby agree and decide, that the following described
lines as shown on Plan 44, Record Book No. 2, shall mark the mouths or
outer limits of said Rivers; and that all the waters within said lines shall
l>o reserved and excluded from the common right of fishing therein, under
tlie first and second articles of the Treaty aforesaid :—
*' Dartmouth.— A lino bearing S., 46° 30' W., (magnetic) from Point
i'unard to the rocky Point on the opposite shore, as drawn on Plan 44,
liccord Book No. 2.
"ForA:.— A line bearing N., 32° 30' W., (magnetic) connecting Point
r^ourde with the high rocky Point on the opposite shore, as drawn on Plan
44, Record Book No. 2.
**Saint John. — A line bearing N., 20° 30' E., (magnetic) connecting the
two long sand Points, as drawn on Plan 44, Record Book No. 2.
"Dated at the City of Boston, United States, this 19th day of November,
A. D. 1860.
** John Hubbaud, r. S. Commissioner.
" M. H. Perley, n. M, Commissioner,
Digitized by LjOOQIC
490 INTERNATIONAL ARBITRATIONS.
*NO. ii.— TBE RIVERS GRAND, BONA VENTURE. AND GRAND CASCA-
PBDIAO. PROVINCE OF CANADA, AND RIVER CARAQUETTE. PROV-
INCE OF NEW BRUNSWICK.
"We, the undenigned, Commissionen under the Reciprocity Treaty
between the United States and Great Britain, concladed and signed at
Waehington on the 5th day of June, A. D. 1854, having examined the
Rivers Grand, Bonaventore, and Grand Casoapediao, emptying into the
Bay of Chalenr, Province of Canada, and also the River Caraqnette, on
the Soath side of the same Bay, Province of New Brunswick, do hereby
agree and decide, that the following described linee, as shown on Plan 8,
Record Book No. 2, shall mark the mouths or outer limits of said rivers;
and that all the waters within the said lines shall be reserved and ex>
eluded from the common right of fishing therein, under the first and second
articles of the treaty aforesaid :— -
"Grand, — ^A line bearing £. and W., (magnetic) connecting the sand
Point on West side of entrance, with the opposite shore, as drawn on Plan
8, Record Book No. 2.
** Bonaventure, — Aline bearing N., 12^ W., (magnetic) connecting the two
Sand Spits, as drawn on Plan 8, Record Book No. 2.
"Grand Cateapediac. — A line liearing N., 4^ W., (magnetic) connecting
Richmond Point with the Point on the opposite shore, as drawn on Plan 8,
Record Book No. 2.
*'Caraqustte. — A line bearing S., 14P 45' W., (magnetic) extending from
Point Mizssenette to the opposite shore, and in the direction of the Catholic
Church on the South side of the entrance, as drawn on Plan 8, Record
Book No. 2.
" Dated at the City of Boston, ITnited States, this 19th day of November,
A. D. 1860.
"John Hubbard, U. S, Commissicnir,
"M. H. Pkrley, if. M, Commisnoner,
••NO. 46.— THE RIVERS COCAQNE, SHEDIAC, AND SAINT JOHN, IN THE
PROVINCE OF NEW BRUNSWICK.
"We, the undersigned. Commissioners under the Reciprocity I'reaty
between the United States and Great Britaiu, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having re-exumined the
differences of opinion as exhibited in Record 15 of this Book, in regard to
the mouths of the Rivers Cocagne, Shediac, and Saint John, in the Prov-
ince of New Brunswick, do hereby agree and decide, that the following
described linos, as shown on Plans 45, 46, and 47, Record Book No. 2, shall
mark the mouths or outer limits of the said Rivers ; and that idl the waters
within the said lines shall be reserved and excluded from the common
right of fishing therein, under the first and second articles of the treaty
aforesaid : —
"Cocagne. — A line commencing at the end of Longs Wharf, and extend-
ing across the water to the opposite shore, and in the direction of the
Roman Catholic Church, and bearing N., 16^ 30' W., (magnetic) as drawn
on Plan 45, Record Book No. 2.
"Shediac, — A line drawn from the Northern extremity of Porier Point,
marked A, to the opposite point marked B, and bearing N., 28^ £., (mag-
netic) as drawn on Plan 46, Record Book No. 2.
Digitized by LjOOQIC
RESERVED FISHERIES. 491
**Saint John, — A line extending from Sheldon Point to the sonthern
extremity of Partridge Island, and thence by another line from the last
named point to Cranberry Point, as drawn on Plan 47, Record Book No. 2.
"Dated at the City of Boston, United States, this 19th day of November,
A. D. 1860.
"John Hubbard, U. S. CommUsianer,
"M. H. Peruey, H. M, CommiMioner.
" NO. 46.— THE BIVERS SUSQUEHANNA. NORTH EAST, ELK, AND SASSAFRAS.
*'We, the nndersignett, Commissioners nnder the Reciprocity Treaty
lM>tween the United States and Great Britain, concluded and si^nied at
Wiishington on the 5th day of Jnne A. D. 1864, having examined the Riv-
ers Snsqnehanna, North East, Elk, and the Sassafras, all in the State of
Maryland, United States, do hereby agree and decide that the following
dc^seribed lines as shown on Plan 48, Record Book No. 2, shall mark ti.e
mouths or outer limits of said rivers, and that all the waters within said
lines shall be reserved and excluded from the common right of fishing
therein under the 1st and 2d articles of the Treaty aforesaid.
"Suaquehanna River,— Aline bearing N. 73° 15' E. Magnetic, drawn from
the Light-House at Havre de Grace on the West side of entrance, tu tlie
opposite bank, as shown on Plan 48 Record Book, No. 2.
** North East River, — A line bearing S. 61° E. Magnetic, drawn from Car-
penter's Point on the west side of entrance, to White Point, on the oppo-
site bank, as shown on Plan 48, Record Book No. 2.
''Elk River,— A line bearing N. 22° 20' W. Magnetic, drawn from Wroths
Point on the south side of entrance, to the Light-House on Turkey Pt. on
the opposite bank, as shown on Plan 48, Record Book No. 2.
"Sassafras River, — A line bearing S. 38° 15' W. Magnetic, drawn from
Grove Pt. on the north side of entrance, to the opposite bank, as shown on
Plan 48, Record Book No. 2.
" Dated at the city of Washington, United States, this thirteenth day of
February A. D. 1866.
''E. L. Hamun, U. S. Commissioner.
"Joseph Howe, H, M, Commissioner,
"NO. 47.— PATAPSCO RIVER.
"We, the undersigned, Commissioners nnder the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examined the
Patapsco River in the State of Maryland, United States, do hereby agree
and decide that a line bearing N. 9° 40' W. Magnetic, drawn from Bodkin
Point on the south side of entrance, to the Lower Light House on North
Pt. as shown on Plan 49, Record Book No. 2, shall mark the month or
outer limit of said river and that all the waters within or to the westward
of said line shall be reserved and excluded from the common right of
fishing therein under the 1st and 2d articles of the treaty aforesaid.
"Dated at the city of Washington, United States, this thirteenth day
of February, A. D. 1866.
"E. L. Hamlin, U, S, Commissioner.
"Joseph Howe, H, M, Commissioner.
Digitized by LjOOQIC
492 INTERNATIONAL ARBITRATIONS.
•♦NO. 48— CHESTER RIVER.
''We, the undersigned, Oommissiouers ander the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, 1854, having examined the Chester
River, in the State of Maryland, United States, do hereby agree and de-
cide that a line bearing N. 88^ E. Magnetic, drawn from Love Pt. on Kent
Island to the Northwestern point of East Neck Island on the opposite
shore as shown on Plan 50, Record Book No. 2, shall mark the month or
outer limit of the said river, and that all the waters within or to the south-
ward and eastward of said line shall be reserved and excluded from the
common right of fishing therein, under the 1st and 2d articles of the treaty
aforesaid.
** Dated at the city of Washington, United States, this thirteenth day of
February, A. D. 1866.
''E. L. Hamlix, U. S. Commisaioner.
"Joseph Howe, If. M. Commiasi&uer.
"NO. 49.— SEVERN RIVER.
*'We, the undersigned. Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed nt
Ws^hingtou on the 5th day of June, 1851, having examined the Severn
River in the State of Maryland, United States, do hereby agree and decide
that a line bearing N. 7^ W. Magnetic, drawn from Tally's Pt. on the south
side of entrance, to Qreensberry Pt. on the opposite shore, as shown on
Plan 51, Record Book No. 2, shall mark the mouth or outer limit of the
said river, and that all the waters within or to the westward of said line
shall be reserved and excluded from the common right of fishing therein
under the 1st and 2d articles of the treaty aforesaid.
** Dated at the City of Washington, United States, this thirteenth day of
February, A. D. 1866.
" E. L. Hamlin, U, S. CommUsioner.
" Joseph Howe, ff. M. CommisHoner,
"NO. 50._CHOPTANK RIVER.
'•We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States ami Great Britain, concluded and signed <at
Washington on the 5th day of June A. D. 1854, having examined the Chop-
tank River, in the State of Maryland, United States, do hereby agree and
decide that a line bearing N. 70^ E. Magnetic, drawn from Castle Haven
Pt. on the south side of entrance, to Chloras Point on the opposite shore,
as shown on Plan 52, Record Book No. 2, shall mark the mouth or outer
limit of the said river, and that all the waters within or to the southward
of said line shall be reserved and excluded from the common right of fish-
ing therein, under the 1st and 2d articles of the treaty aforesaid.
''Dated at the city of Washington, United States, this thirteenth day of
February, A. D. 1866.
'• E. L. Hamlin, U. S. Commissianer.
" .JosKPii Howe, H. M. Commiationer.
Digitized by LjOOQIC
RESERVED FISHERIES. 493
"NO.Sl.-PATtTXENT EIVER.
"We, the underfligned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and si^ed at
Washington on the 5th day of June, A. D. 1854, having examined the
Patazent River in the State of Maryland, United States, do hereby agree
and decide that a line bearing N. 59^ 15' W. Magnetic, drawn from the
northern extremity of Hog Island on the south Hide of the entrance, to
Drum Point on the opposite shore, as shown on Plan 53, Record Book No.
2, shall mark the mouth or outer limit of said river, and that all the waters
within or to the westward of said line shall be reserved and excluded from
the common right of fishing therein^ under the 1st and 2d articles of the
treaty aforesaid.
'^ Dated at tbe city of Washington, United States, this thirteenth day of
February, A. D. 1866.
" E. L. Hamlin, U. S, Commisaioner.
" Joseph Howe, H. M, Commissioner,
"NO. 52.— NANTICOKE RIVER.
"We, the undersigned Commissioners, under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on tlie 5th day of June, A. D. 1854, having examined the
Nanticoke River in the State of Maryland, United States, do hereby agree
and decide that a line bearing S. 86^ 20' E. Magnetic, drawn from Clay
Island Light House on the western side of entrance, to the opposite shore,
}is shown on Plan 54, Record Book No. 2, shall mark the mouth or outer
limit of said river, and that »11 the waters within or to the northward of
said line shall be reserved and excluded from the common right of fishing
therein, under the 1st and 2d articles of the treaty aforesaid.
''Dated at the city of Washington, United States, this thirteenth day of
February, A. D. 1866.
" E. L. Hamlin, U. S. Commissioner.
** Joseph Howe, H, M. Commissioner,
'•NO. 53.-POCOMOKE RIVER.
**We, the undersigned, Commissioners nnder the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington on the 5th day of June, A. D. 1854, having examined the Poco-
moke Kiver in the State of Marylantl, United States, do hereby agree and
decide that a line bearing S. 29^ 15' E. Magnetic, drawn from the point of
marsh on the north side of entrance, to the point on the opposite shore, as
shown on Plan 55, Kecord Book No. 2, shall mark the mouth or outer limit
of said river and that all the waters within or to the eastward of said
line shall be reserved and excluded from the common right of fishing
therein, under tbe 1st and 2d articles of the treaty aforesaid.
** 1 )ated at the city of Washington, United States, this thirteenth day of
February, A. D. 1866.
" E. L. Hamlin, U, S, Comminsioner,
"Joseph Howe, H, M. Commissioner,
••NO. 54.-DELAWARE RIVER.
"We, the undersigned. Commissioners under the Reciprocity Treaty
between the Uiiite<l States and Great Britain, concluded and signed at
Digitized by V^OOQ IC
494 INTERNATIONAL ARBITRATIONS.
Washin^fton on the 5th day of Jane A. D. 1854, havinjc examined the Tela-
ware River, separating the State of New Jersey from the State of Dela-
ware, United States, do herehy agree and decide that a line bearing N. 68^
30' £. Magnetic, drawn from Goose Point on the western shore, to Ben
Dayis Pt. on the opposite shore, as shown on Plan 56, Record Book No. 2,
shall mark the month or enter limit of said river, and that all the waters
within or to the northward of said line shall be reserved and excluded
from the common right of fishing therein, nnder the 1st and 2d articles of
the treaty aforesaid.
" Dated at the city of Washington, United States, this thirteenth day of
February, A. D. 1866.
"E. L. Hamlin, U. S. Commisnoner.
"Joseph Howe, H, M, Commissioner.
"NO. 55.— RIVER EXPLOITS.
"We, the undersigned. Commissioners nnder the Reciprocity Treaty
between the Unite<l States and Great Britain, concluded and signe<l at
Washington on the 5th day of June, A. D. 1854, having examined the River
Exploits on the northern coast of the Island of Newfoundland, do hereby
agree and decide that a line bearing S. 58^ 45' E. Magnetic, drawn from
the Rocky Islet on the west bank, to Burnt Arm Pt. on the opposite shore,
as shown on plan 57, Record Book No. 2, nhall mark the mouth or outer
limit of said river, and that all the waters within or to the southward of
said line shall be reserved and excluded from the common right of fishing
therein, under the 1st and 2d articles of the treaty aforesaid.
''Dated at the city of Washington, United States, this thirteenth day of
February, A. D. 1866.
"E. L. Hamlin, U. S. Commissioner.
"Joseph Howe, H. M. Commissioner,
"NO. 56.-BIVBRS GAMBO AND TEUUA XUEVA.
** We, the undersigned, Commissioners under the Reciprocity Treaty
between the United States and Great Britain, concluded and signed at
Washington, on the 5th day of June, A. D. 1854, having examined the
Gambo River, flowing into Freshwater Bay and the Terra Nueva River
falling into the middle arm of Bloody Bay, on the eastern coast of the
Island of Newfoundland, do hereby agree and decide that the following
described lines, as shown on Plan 58, Record Book No. 2, shall mark
the mouths or outer limits of said rivers, and that all the waters within
or to the westward and southward of said lines shall be reserved aud
excluded from the common right of fishing therein under the 1st and 2d
articles of the treaty aforesaid.
'* (iamho Hirer. — A line bearing S. 14° W. Magnetic, drawn from the
North Shore to a point on the opposite bank, as shown on plan 58, Record
Book No. 2.
'* Terra Nitera River, — A line bearing S. 58" 30' E. Magnetic, drawn from
the extremity of the long point on the western shore, to a point on the
opposite bank, as shown on Plan 58, Record Book No. 2.
''Dated at the city of Washington, United States, this thirteenth day of
February, A. D. 1866.
" E. L. Hamlin, U. S. Commissioner.
"Joseph Howe, H. M. Commissioner.^*
Digitized by LjOOQIC
CHAPTER XIT.
THE GENEVA AKBITBATION.
At no time siuoe the yeai- 1814 had the re-
Utaattim at cioM of j (.jons between the Uuited States and Great
Cvnl War.
Britain worn so menacing an aspect as that
which they assamed after the close of the civil war in the
United States. At various times during the intervening period
of half a century controversies had arisen and had been the
occasion of sharp contention, but they did not have their origin
in a deep and pent-up feeling of national injury such as that
which the conviction that the British Government had failed
to perform its neutral duties during the civil war produced in
the mass of the people of the United States. Nor did the
claims growing out of the civil war constitute the only subject
of disjmte between the two governments. The controversy as to
the San Juan water boundary, which was in train of settlement
before the war began, was now revived. Moreover, on the 17th
of March J 865, before the war had yet been concluded, notice
was given to the British Government, pursuant to a joint
resolution of Congress, of the intention of the United States
to consider the treaty of June 5, 1854, in relation to reciprocity
and the fisheries, as terminated, in accordance with its pro-
visions, at the expiration of twelve months from the date of the
notitication.* The termination of this treaty brought the two
governments face to face with old controversies, which had
themselves at times seemed to threaten hostilities; and, as if
further to complicate the situation, there came the outbreak of
Fenian ism, dragging with it the vexed question of expatriation,
which had formed a subject of contention in the disputes that
led up to the war of 1812. But of all the subjects in contro-
versy the most difficult was that which related to Great
Britain's conduct as a neutral, a subject that embraced not only
> Dip. Cor. 1868, part 1, pp. 93, 259 ; 15 Stats, at L. 566.
495
Digitized by LjOOQIC
496 INTERNATIONAL ARBITRATIONS.
the question of the rightfulness of her recognition of the Con-
federnte States as a belligerent, but also the question of her
liability for the depredations on American commerce, which
gave rise to the claims generically known as the Alabama
claims.
During the existence of the civil war the
Earl SoflseU's Eejeo- United States had the good fortune to be rep-
tionof At itrauon. p(>g^„^^(i r^^ London by a minister who, besides
inheriting the name, possessed much of the ability and more
than the tact and self control of our first diplomatic repre-
sentative at the Court of St. James. From the moment of his
assumption of his oflice, Charles Francis Adams had, with
ability and persistent firmness, sought to impress upon the
British Government the views held by the United States as- to
that government's failure to perform its neutral duties. In a
note to Earl Eussell of October 23, 1863, Mr. Adams, referring
to the difl'erences then developed, said: "I am directed to say
there is no fair and ecjuitable form of conventional arbitrament
or reference to which they (the United States) will not be will-
ing to submit."* Almost two years later, after the close of the
the war, Earl liussell, when replying to a statement by Mr.
Adams of the grievances of the United States, recalled this
remark and said :
'* 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, in good faith and honesty, in
the maintenance of the neutrality they proclaimed! The other
is. Have the law officers of the C'rown properly understood the
foreign enlistment act, when they declined, in June 1802 to
advise the detention and seizure of the Alabama^ and on other
occasions when they were asked to detain other ships, building
or fitting in British ports!
" It appears to Her Majesty's Government that neither of
these questi(ms could be put to a foreign government with any
regard to the dignity and character of the British Crown and
the British nation. Her Majesty's Government are the sole
guardians of their own honor. They can not admit that they
have acted with bad faith in maintaining the neutrality they
professed. The law officers of the Crown must be held to be
better interpreters of a British statute than any foreign gov-
ernment can be presumed to be. Her Majesty's Government
must therefore decline either to make reparation and compen
satiou for the captures made by the Alabama^ or to refer the
• Dip. Cor. 1865, part 1, p. 5(i5.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 497
question to any foreign state. Her Majesty's Government
conceive that if tliey were to act otherwise they would endanger
the position of neutrals in all future wars.
" Her Majesty's (ioverninent, however, are 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 pow-
ers shall agree to refer to the commission."^
These declarations of Earl Eussell led Mr. Seward not only
to decline his proi)osition for the creation of a joint commis-
sion, but also to say that whatever the United States had
thought or might still think as to ^^ umpirage between the two
powers," no such proposition as that made in 1863 would
thenceforward '• be insistetl ui)on or submitted to by this gov-
eniment."^ In a subsequent instruction to Mr. Adams, marked
" confidential," Mr. Seward said that there was not a member
of the government, nor, so far as he knew, any citizen of the
United States, wlio expected that the country would in any
case waive its demands ii\^n the British Government for the
redress of wrongs committed in violation of international law.^
Eai 1 Russell's absolute and abrupt refusal to
Feeling in England, discuss the <]uestion of liability fur the Ala
bama claims was felt in England to have been
a mistake.** It wjis perceived that the subject was one that
involved something more than the construction of British
statutes and the ({uestion of indemnities — that it involved sub-
stantial questions of law and practical questions of interna-
tional conduct which Her Majesty's Government might consider
without abating anything of ** the dignity and character" of
tlie Crown, and without. ceasing to be '* the sole guardians of
their own lienor." In the summer of 1866 the House of Rep-
resentatives of the United States unanimously i)assed a bill to
repeal the inliibitions in the neutrality laws against the fitting
out of ships for belligerents. The avowed object of this
measure was to gauge the future neutrality of the United
States by the course of conduct which resulted in the issuance
of the Alabama and other r^onfederate cruisers from British
1 Dip. Cor. 1865, part 1, p. 545.
« Mr. Seward to Mr. Adams, September 20, 1S65, Dip. Cor. 186.5, part 1,
p. 565; same to same, November 4, 1865, id. 630; see also Dip. Cor. 1865,
part 1, p. 613, aud Lip. Cor. 1866, part 1, pp. 1-28.
» Mr. Seward to Mr. Adams, February 14, 1866, Dip. Cor. 1866, part 1, p. 66.
* Mr. Adams to Mr. Seward, February 15, 1866, Dip. Cor. 1866, part 1,
p. 67.
5627 32
Digitized by LjOOQIC
498 INTERNATIONAL ARniTRATIONS.
ports to prey on American commerce.' The ultimate conse-
quences of such a form of retaliation it was impossible to esti-
mate; but it did not require much reflection to show that they
might be most disastrous.' As time wore on these obvious
considerations of interest, as well as the sincere desire felt by
many persons in England for more cordial relations with the
United States, began to And i)ublic expression. Late in
August 1806 a letter, probably written by Mr. Olypliant, a
member of Parliament, who had lately been in the United
States, appeared in the London Timesj in which the writer,
referring to the action of the Ilonseof Representatives and to
the refusal of Earl Kussell to arbitrate the Alabama cl<aims,
expressed the hope that it was not yet too late to retrieve that
statesman's errors.^
At this time Earl Eussell was no longer
Offldal SzpreMloii. foreign secretary, and liis successor, Lord Stan-
ley, was understood to be favorable to the ami-
cable settlement of the pending difiFerences/ By November
1866 the question of reopening the Alabama claims had not
only become a topic of general discussion in the English press,
but it was announced that the government contemjilated the
appointment of a royal commission to inquire generally into the
operation of the British neutrality laws.^ Indeed, Lord Derby,
the prime minister, at the inauguration of the lord mayor of
London, at Guildhall, on the 10th of that month, intimated
that a proi>osition for the arrangement of the differences touch-
ing the Alabama claims would be favorably entertained,^ and
this intimation was followed by leading articles in the ThneSj
in which it was suggested that Earl Russell's rejection of Mr.
Adams's demands proceeded on a "somewhat narrow and one-
sided view of the question at issue," which would in the end
make neutrals the sole judges of their own obligations,' and
that the claims would not bo forgotten by the American i)eople
till they had been '^ submitted to some imi>artial adjudication.''*
' Dip. Cor. 1866, part 1, pp. 156-166.
'^ Beiuis's Amorican Neutrality: Its Honorable Past, Its Expedient
Future (Boston, 1866), ably expressed the objections to the repeal of the
neutrality laws, and argued for their consolidation and improvement.
» Mr. Adams to Mr. Seward, Au«;nst 23, 1866, Dip. Cor. 1866, part 1, p. 174.
<Dip. Cor. 1866, part 1, pp. 147, 166, 177-203.
« Id. 212.
« Id. 210.
'Dip. Cor. 1867, part 1, pp. 1-3.
«Id. 43; London Ttm^«, January 9, 1867.
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THE GENEVA ARBITRATION. 499
On the 7tb of January 1867 Sir Frederick
^^^^^J^'^^ Bruce, the British minister at Washington,
communicated to Mr. Seward a copy of an
instruction of the 30th of the preceding November, in which
Lord Stanley said that while it was impossible for Her
Majesty's present advisers to abandoned the ground taken by
former governments so far as to admit liability for the Alabama
claims, they would not be disinclined to adopt the principle
of arbitration, provided that a fitting arbiter could be found,
and that an agreement could be reached as to tlie points to
which the arbitration should apply. But with regard to the
alleged premature recognition of the Confederates States as a
belligerent power, it was, be said, clear that no reference to
arbitration was possible, since the act complained of was one
as to which every state must be held to be the sole judge of
its duty. At the same time Lord Stanley called attention to
the numerous British claims growing out of the war.*
Wliile Mr. Seward did not object to the
Mr. Seward's Beply. remedy of arbitration, he declined to accept it
with the limitations which Lord Stanley pro-
posed. He insisted that the whole controversy should be sub-
mitted just as it was found in the correspondence between the
two governments, without imposing any conditions or restric-
tions on the arbitrator, and without waiving any principle or
argument on either side.^ The United States could not, said
Mr. Seward, waive before the arbitrators the position they had
constantly maintained from the beginning, "that the Queen's
proclamation of 18C1 which accorded belligerent rights to in-
surgents against the authority of the United States, was not
justified on any grounds, either of necessity or moral right, and
therefore was an act of wrongful intervention, a departure from
the obligation of existing treaties, and without the sanction of
the law of nations." ^
For this reason Mr. Seward declined Lord
Mr. Seward'gPoaition Stanley's proposition for a limited reference.
oiitheBeUiger«icy|3j^^. jt should be observed that, while he re-
fused to waive the question as to the general
course of conduct of the. British Government during the war,
» Dip. Cor. 1867, part 1, pp. 183, 188.
2 Mr. Sewjird to Mr. Adams, January 12, 1867, Dip. Cor. 1867, part 1,
pp. 45-45.
^ Same to same, November 29, 1867 (id. p. 179).
Digitized by LjOOQIC
500 INTERNATIONAL ARBITRATIONS.
he did not present it as a sabject for pecuniary reparation,
apart from the claims of indemnity for individual suflFerers.
On the contrary, he contended that it shouhl be presented to
the arbitrators as one of the ii^oundson which Great Britain's
liability to individual claimants might be maintained. In an
instruction to Mr. Adams of the 13th of January 1868 he
defined his position on the subject in these terms :
"Lord Stanley seems to have resolved that the so-called
Alabama claims shall be treated so exclusively as a pecuniary
commercial claim as to insist on altogether excluding the pro-
ceedings of Her Majesty's government in regard to the war
from consideration in the arbitration which he proi)Osed.
" On the otlier hand, I have been singularly unfortunate in
my correspondence if I have not given it to be clearly under-
stood that a violation of* neutrality by the Queen's proclama-
tion and kindred proceedings of the British Government is
regarded as a national wrong and injury to the United St^ites;
and that the lowest form of satisfaction for that national injury
that the United States could accept would l»e found in an in
demnity, without reservation or compromise, by the British
Government to those citizens of the United States who had
suflered individual injury and damages by the vessels of war un-
lawfully built, equipped, manned, fitted out, or entertained and
protex^ted in the British ports and harbors in consequence of a
failure of the British Government to preserve its neutrality."*
In the instruction from which the foregoing
iir.8ewMdB8ugge»-^^^^^g^ ^^ quoted Mr. Sewaid adverted to the
various questions, other than th<at of the AUi-
hayna clRimSy which were pending between the two governments,
and remarked that any one of them might '^ at any moment
become a subject of exciting controversy." The naturalization
question was, he said, "already working in that way." The
trial and conviction at Dublin, on a charge of treason-felony,
of certain Irish- Americans who had been engaged in a Fenian
expedition, and the judicial denial to them, on the ground that
they still remained subject to their original allegiance, of a
jury de medietate linguWy which would have been accorded to
a native citizen of the United States, had produced and was con-
tinuing to produce an excitement that, to borrow Mr. Seward's
picturesque phrase, extended '* throughout the whole country,
from Portland to San Francisco and from St. Paul to Pensa-
cola."' Under the circumstances, Mr. Seward intimated "that
»Dip. Cor. 1868, part 1, p. 141. *Id. 143.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 501
Her Majesty's Governmont, if desirous to lay a broad founda-
tion for friendly and satisfactory relations, might possibly think
it expedient to suggest a conference, in which all the matters
referred to might be considered together," and a "comprehen-
sive settlement" attempted " without exciting the sensibilities"
that were "understood to have caused that government to
insist upon a limited arbitration in the case of the Alabama
claims." Mr. Adams was instructed to communicate "these
explanations" to Lord Stanley informally, but with the distinct
understanding that the United States should not be considered
"as proposing to open a new negotiation in regard to the ques-
tions referred to, or any of them." *
Though public opinion in Great Britain was
ffataralintion dues- jaiiy becoming more favorable to the settle-
ment of the Alabama claims, the question that
caused at this particular juncture the most uneasiness in. the
United States was that of naturalization.' Tlie advocates of
the doctrine of voluntary expatriation were strengthened by
the eventful conclusion by George Bancroft, on the 22d of
February 1868, of the convention with the North German
Union, by which the naturalization of German subjects jn the
United States, after an uninterrupted residence of five years,
was recognized. Mr. Seward now suggested the settlement of
of the naturalization question between the United States and
Great Britain on the lines of this convention ; and he expressed
the opinion that if this should be done, and the San Juan ques-
tion should be referred for arbitiation to the Government of
Switzerland, the existing irritation would be so far relieved
that the Alabama and other claims could be adjusted in a
manner unexceptionable in either country.^
In December 18G7 Mr. Adams resigned the
"^'^Ad^''' *''• position which he had filled with so much
honor and usefulness, but his retirement from
his post was delayed till the following May.
On the 12th of June 1868 Mr. Reverdy John-
''^'^^i^n^^*'*^ ®^"' ^^ Maryland, a man eminent both in the
law and in politics, was commissioned for the
difficult task of acting as Mr. Adams's successor.
•Mr. Seward to Mr. Adams, Jannary 13, 1868, Dip. Cor. 1868, part l,p.l42.
' Same to same, March 7, 1868, Dip. Cor. 18(W, part 1, p. 159.
* Same to same, March 23, 1868, Dip. C(»r. 1868, part 1, p. 183.
Digitized by LjOOQIC
502 INTERNATIONAL ARHITRATION8,
Oil the 20tb of July iMr. Seward instructed Mr. Johnson as
to the adjustment of pending difi'erences. In the forefront he
placed the question of naturalization ; and Mr. Johnson was
directed to say to Lord Stanley that the President believed
that unless this difficulty could be removed any attempt to
settle other controversies w^ould be unavailing and therefore
inexpedient.
The second place in Mr. Johnson's instructions was given to
the San Juan water boundary; and it was stated that the
United States remained favorable to the adjustment of the
question by arbitration.
In the last place, Mr. Johnson was instructed that if he
should find the British (Tovernment prei)ared to adjust the
two preceding questions, he would then be expected to advert
" to the subject of mutual claims of citizens and subjects of
the two countries against the government of each other re-
spectively;" and in this relation Mr. Seward said:'
"The difficulty in this respect has arisen out of our claims
which are known and described in general terms as the A la-
bama claims. In the first place, Her Majesty's government not
only denied all national obligation to indemnify citizens of the
United States for these claims, but even refused to entertain
them for discussion. Subsequently Her Majesty's government,
upon reconsideration, proposed to entertain them for the pur-
pose of referring them to arbitration, but insisted upon making
them the subject of special reference, excluding from the
arbitrator's consideration certain grounds which the United
States deem material to a just and fair determination of the
merits of the claims. The United States declined this special
exception and exclusion, and thus the proposed arbitration has
failed.
"It seems to the President that an adjustment might now
be reached without formally reviewing former discussions. A
joint commission might be agreed upon for the adjustment of
all claims of citizens of the United States against the British
Government, and of all claims of subjects of Great Britain
against the United States, upon the model of the joint com-
mission of February 8, 1853, which commission was conducted
with so much fairness and settled so satisfactorily all the con-
troversies which had arisen between the United States and
Great Britain, from the peace of Ghent, 1814, until the date of
the sitting of the commission.
" While you are not authorized to commit this government
distinctly by such a proposition, you may sound Lord Stanley
upon the subject, after you shall have obtained satisfactory
I Dip. Cor. 1808, part 1, p. 33L
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 503
assuniuces that the two. more urgent controversies previously
mentioned can be put under process of adjustment in the man-
ner which I have indicated."
Mr. Johnson arrived in England in August,
' ^^ J^' *" and conducted his negotiations with Lord
gotiAtioiig.
Stanley with so much energy that on the 9th
of October they signed a protocol on the subject of naturaliza-
tion,^ on the 17th of the same month a protocol for the arbi>
tration of the San Juan boundary dispute,* and on the 10th of
November a convention concerning claims.^ Only one of these
instruments was destined to survive. The protocol on natural-
ization was substantially preserved in the convention on that
subject, concluded by Mr. Motley and Lord Clarendon at
London on the 13th of May 1870. The protocol touching the
San Juan boundary provided for the reference of the contro-
versy to *^ some friendly sovereign or state," and proposed to
invest the arbitrator with power, in case he should be unable
to reach a precise conclusion as between the claims of the con-
tracting parties, to "determine iipon some other line," which
would "furnish an equitable solution of the difficulty" and
would be the "nearest approximation that could be made to
an accurate decision of the point in dispute."
On the 26th of November Mr. Seward tele-
oijectioiui to cuinu graphed to Mr. Johnson: "Claims convention
nventioii. uuiegg amended is useless." This convention
provided for the submission of all claims of British subjects
against the United ^States, and of all claims of citizens of the
United States against Great Britain, to a tribunal of four
commissioners, two to be appointed by each government, which
was tx) sit in London. Though Mr. Johnson had not under-
stood that this question of place was important, Mr. Seward
now declared that in view of "highly disturbed national
sensibilities" Washington was "indispensable."*
The convention also provided for the determination of all
claims by a majority vote, except the Alabama claims. In re-
gard to these it was stipulated that in case the commission
should be unable to come to a "unanimous decision," they
should be referred to "some sovereign or head of a friendly
' Dip. Cor. 1868, part 1, p. 358. a Id. 371.
«Id.361. <Id.374.
Digitized by LjOOQIC
504 INTERNATIONAL ARBITRATIONS.
state," who slioulil l;e chosen for that purpose by the two
governments before any of this class of claims should be taken
into consideration by the comi^iissioners. In respect of all other
claims, the commissioners, if equally divided in opinion, were
authorized themselves to select an umpire; and it was i)ro-
vided that if they should bo unable to agree upon any such
person the commissioners on either side should name an umpire,
and that from the two persons so named an umpire should
be designated by lot in each particular case in which the com-
missioners might be unable to come to a decision. To these
provisions Mr. Seward objected, on the ground that they dis-
criminated against the Alabama claims, first, in that they
required the decision of the connnissioners upon any of those
claims to be unanimous; second, in that they prescribed a
different mode for the (choice of an umpire for tlie Alabama
claims from that i>rovided in respect of all other claims; third,
in that they required tbe umpire chosen for the Alabama claims
to be a sovereign or the head of a friendly state, while no such
liinitntion was made in regard to any other class of claims. To
the i)rovision authorizing the choice of an umpire by lot for
the decision of claims other than the Alabama claims Mr.
Seward did not object.
The convention also provided that neither government
should make out a case in support of its i)osition touching the
Alabama claims, and that no person should be heard for or
against any such claim ; but that the ofUcial correspondence
already exchanged on the subject should alone bo laid before
the commissioners, and, in the event of their not coming to a
unanimous decision, before the umpire, withcmt arguments
written or oral, and without the production of any further
evidence. Mr. Seward objected to this provision, on the
ground that its ]>recautions against allowing as full a hearing
and examination of the Alabama claims as of all other claims,
American or British, would have the mischievous effect of
exciting unnecessary distrust among the people of the United
States, as well as among those of (treat Britain. ^
Before Mr. Johnson could act upon the
Johnson-daren on j^m<»,j(|,n^„ts re<)uired by Mr. Seward Lord
ConventioiL
Clarendon ha<l succeeded Lord Stanley as
foreign secretary. But a new convention, framed in accord-
i Dip. Cor. 1868, part 1, p. 381.
Digitized by LjOOQIC
THE GENEVA ARHITRATION. 505
auce with Mr. Seward's instructions, was signed by Mr.
Johnson and Lord Clarendon January 14, 1SG9; and on the
same day a convention was formally concluded for the reference
of the San Juan boundary question to the President of Ihe
Swiss Confederation, on the lines laid down in the protocol of
the 17th of the preceding October.'
The claims convention as it now stood, though it provided
for a board of four instead of two comn)is.sioners, followed in
irs general outlines the convention of February 8, 1853, which
Mr. Johnson was instruc^ted to use as a model. The Alabama
claims were not expressly referred to, and the modes prescribed
for the choice of an umpire applied uniformly to all claims. The
provision for the appointment of an umpire by lot, in each par-
ticular case of difference, in the event of the commissioners'
being unable to agree on one umpire for all cases, remained.
A similar provision may be found in the convention of 1853;'-
but it did not become necessary, in the proceedings under
that convention, to resort to it, since the commissioners were
so fortunate as to agree upon one umpire. For this reason
its unsatisfactory character was not demonstrated; but it is
scarcely necessary to i>oint out that the vibration of a tribunal
between two umpires is likely to i)roduce an undesirable vari-
ety in decisions, and that the haphazard method of casting
lots for an umpire in each case, without reference to the prin-
ciples involved in it, makes this tendency irremediable. The
Johnson-Clarendon convention, however, contained the further
provision that if the commissioners, or any two of them, should
think it desirable that a sovereign or head of a friendly state
should be umpire in any claim, the commissioners should re-
port the fact to their resi)ective governments, who should
within six months agree upon some such person, who should
be invited to decide upon such claim, and before whom should
be laid the official correspondence which had taken place be-
tween the two governments, and the other written documents
or statements which were presented to the commissioners in
respect of such claim. This provisioi>^ while not expressly
referring to the Alabama claims, was obviously designed to
take the place of the stipulation which the Johnson-Stanley
convention contained in relation to the umpirage of those
claims.
1 Dip. Cor. 18(», part 1, p. 400. ^ Supra, p. 391.
Digitized by LjOOQIC
506 INTERNATIONAL ARBITRATIONS.
Mr. Seward conveyed to Mr. Johnson **the
^^ ^fii^on ^^^ assurance of tbe President's high Batisiaction"
with the manner in which he had condncted
the negotiations, and Mr. Johnson confidently expressed the
opinion that if the claims convention should become operative
"every dollar due" on the Alabama claims would be "recov-
ered."^ Nevertheless it soon bec^ame evident that the conven-
tion would not be ratified. A premonition of its fate may be
read in a letter to Mr. Johnson of the 10th of February 1869,
in which Mr. Seward said : "The confused light of an incoming
administration is already spreading itself over the country, as
usual rendering the consideration of political subjects irksome
if not inconvenient. With your experience in legislative life,
you will be able to judge for yourself of the prospects of definite
action upon tbe treaties during the remainder of the present
session."*
» Dip. Cor. 1868, part 1, pp. 406, 418.
• Mr. Seward's attitude toward tbe negotiatioDS is shown in the following
letter :
"Department of State^
'* WashingUm, g6 October, 1868.
"Reverdy Johnson, Esq., etc., etc,, etc.:
'< My Dear Mk. Johnson : I thank you for your not-e of the 7th of Octo-
ber, giving explanations of tbe circumstances attending yonr speeches at
Sheffield, Leeds, and Worcestt^r. I have laid it before the President.
'^ Those speeches have fallen upon the ear of the American people in an
hour when party spirit is raging very blgh. The country, unadvised of
your power and instructions, and uninformed of tbe improved disposition
of the British Government, has been entirely unprepared for success in the
objects of your mission. As you may have noticed, an active criticism was
inaugurated by the press under a belief that to tbe failure of your negotia-
tions would be added the humiliation of your having unnecessarily lowered
the national attitude by your speeches. The cable reports bave already
broken this delusion in part. Your success in negotiating the claims con-
vention ought to remove it altogether.
"In the event of that success, however, yon may look out for another
change. Political adversaries, finding your negotiations crowned with
complete success, contrary to their own predictions, will begin to cavil at
the several treaties which you will have made, on tbe ground that they
fall short of what might and ought to have been secured. This is the
habitual experience of diplomacy.
''It was so with our German naturalization treaties; it was so with the
St. Thomas and Alaska treaties; it was so with Jay's treaty, and with tbe
treaty of Ghent. Nevertheless, I think that you may take all needed
encouragement.
Digitized by LjOOQIC
THE GENEVA ARBITUATION. 507
There were, however, other difficulties than
^""^"^J.^ ^' ^^^8® occasioned by "the confused light of an
incoming administration.'^ Though Mr. Sew-
ard was not unconscious that the conditions were not propitious,
his hopeful nature had led him to believe that the negotiations
would in the end be successful,^ and it is not improbable that
this hopefulness, reinforced by the wish to close an important
diplomatic chapter which he had himself so largely written, in
a measure accounts for the lack of preparation and preconcert
which the course of the negotiations in London betrays. But,
apart from these circumstances, a new class of claims, generic-
ally known as '* national claims'' or "indirect claims," of which
Mr. Sumner became the chief exponent, had begun to assume a
definite form in the United States. To these claims the John-
son-Clarendon convention did not refer.
On the 29th of March 1869 Mr. Johnson ten-
v^tion^ dered his resignation of the office of minister
to England, to take efi'ect at such time as might
be designated. Before taking this step, however, he had pro-
posed to Lord Clarendon, with a view to meet objections in
the United States, to include in the claims convention all
claims of either government, as well as of their citizens or
subjects. This proposal was made by Mr. Johnson under his
"The^treaties wiU prove satisfactory in the end, and the wisdom of tlie
speecheH you have made will thus be fully vindicated by the achievements
which follow them.
'*I am, my dear Mr. Johnson, very sincerely yours,
"WiLUAM H. Skward."
(MSS. Dept. of State.)
^ In the London Times of March 26, 1872 (page 10, column 5), while the con-
troversy was pending as to the competency of the tribunal of arbitration
under the treaty of Washington to entertain the indirect claims, of which
much will 1)0 said hereafter, there is an extract from a conversation with
Mr. Seward, published in the New York Herald, in which, referring to the
controversy in question, he is reported to have said : '' Well, sir, I do think
that the Johnson-Clarendon treaty was the best treaty that could have
been negotiated, ami having rejected that, they ought to be precluded
from making any more treaties for the settlement of the Alabama claims.
My opinion is that the treaty which I negotiated failed because of the pas-
hIous and prejudices engendered between the two countries, llie settle-
ment of the Alabama claims is reserved for the future. The time has not
yet arrived, because those passions and prejudices have not yet sufficiently
subsided.^'
Digitized by LjOOQIC
508 INTERNATIONAL ARBITRATIONS.
general powers, and not in pursuance of specific instnictioDs;
and on the 10th of April ho telegraphed to Mr. Fish, who had
then become Secretary of State, that lie thoaght the amend-
ment could be secured. On the 12th of April Mr. Fish replied
that as the treaty was before the Senate no change in it was
deemed advisable; and on the 19th he informed Mr. Johnson
of its rejection by the Senate on the 13th of the month, lii
communicating this information Mr. Fish said:
<' The vote of the Senate in opposition to the ratification of
the convention was imicticnlly unanimous, there being only 1
in favor of it and 44 against it. The President, however, is not
without hope that upon a further consideration by the two
governments of the questions involved in the negotiation they
may still be found to be susceptible of an amicable and satis-
factory adjustment. ''
To this declaration of the President's iiosi-
Comznenu of Lord ^i^^, which was duly communicated by Mr.
Clarendon and Mr. j^,],,^^,^^,, ^o the British Government, with the
Jonnion.
notification that the convention had been re-
jected. Lord Clarendon replied :
" In the hoi>e thus expressed by the President, I have the
honor to state to you that Her Majesty's Government cordially
concur. During your residence in this countrj'' you must have
had abundant evidence that it was the desire of the government
and tiie people of England tliat all difterences between the two
countries should be honorably settled, and that their relations
with the United States should be of a most iriendly charai^ter."
In a subsequent dispatch to Mr. Fish, Mr. Johnson, referring
to the proposition he had made to Lord Clarendon for a modi-
fication of the convention, said:
*' Whether such a modification would have rendered the con-
vention acceptable to the President and Senate I can not know.
I deem it my duty, however, to add that such a modification
can not now be obtained. I think that this is owing to the
publication of Mr. Sumners speech, which has not only had an
unfavorable eflfect upon the government, but upon the i>eople
of this country. If an opinion may be formed from the public
I)ress, there is not the remotest chance that the demands con-
tained in that speech will ever be recognized by England. Tbe
universal sentiment will be found adverse to sucli a recogni-
tion. It W4)ul(l be held, as I hear irom every reliable source, to
be an aband(mment of the rights and a disregard of the honor
of the government." ^
1 May 10, 1896, MSS. Dept. of State.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 509
Whether Mr. Johnson could have obtained the modification
which he proposed if Mr. Sumner's speech had not been pub-
lished is perhaps more than doubtful. Wlien he telegraphed
to Mr. Fish on the 10th of April, he was laboring under a mis-
apprehension. In a note of the 8th of April Lord Clarendon,
while observing that Mr. .Johnson's proposal "involved a wide
departure from the tenor and terms of the convention of 1853,"
to which Mr. Johnson had, in compliance with his instructions,
"constantly pressed IJer .Majesty's Oovernment to adhere as
necessary to insure the ratification of a new convention by the
Senate of the United States,*^ added: "No undue importance
is attached to this deviation, but I beg leave to inform you
that in the opinion of Her ^fajesty's Government it would serve
no useful purpose now to consider any amendment to a con-
vention which gave full effect to the wishes of the United
States Government and was approved by the late President
and Secretary of State, wlio referred it for ratification to the
Senate, where it appears to have encountered objections the
nature of which has not been ollicially made known to Her
Majesty's Government." When Lord Clai'cndon said that "no
undue importance" was "attached to this devitaion," Mr.
Johnson, perhaps not unnaturally, understood him to refer to
the precise deviation which had been proposed, and it was
upon the strength of this understanding that he telegraphed
to Mr. Fish on the 10th of April. Lord Clarendon, however,
when made acquainted with the construction placed upon his
words, made haste to say that the meaning he intended to
convey was that Her .Majesty's Government did not think that
a rigid a«lherence to the terms and tenor of the convention of
1853 was material, but that he did not intend to imply that
the particular alteration jiroposed by Mr. Johnson would be
acceptable.^
Neveitheless it is true tliat the speech of
Mr. Sumnei's Speech. Mr. Sumner, which though made in executive
session was published with the authority of
the Senate, played a most important part in the subsequent
history of the Alabama claims. Not only was it received as
an expressicm of the grounds on which the convention was
rejected, and as formulating the demands on which the future
negotiations of the United States would be based, but it served
> Lord Clarendon to Mr. Johnson, April 16, 1869. (MSS. Dept. i»f State.)
Digitized by LjOOQIC
510 INTERNATIONAL ARBITRATIONS.
to set the standard of pablic expectation as to the terms tliat
would be exacted by the United States as the final conditions
of an amicable settlement.^ It is therefore important to un-
derstand the precise grounds on which the argument of Mr.
Sumner proceeded.
In the first place, Mr. Sumner objected to the convention on
the ground that, for the "massive grievance'' under which the
country had ''sufi'ered for years" and "the painful sense of
wr4)ng planted in the national heart," it offered "not one word
of regret, or even of recognition," nor "any semblance of com-
pensation." The convention was, lie said, obviously made for
the setlement of private claims, and even if the "aleatory
proceeding" of choosing an umpire by lot were a x>ropcr device
for the umpirage of private claims, it was stran^jely inconsist-
ent with the solemnity which belonged to the present question.
The convention, Mr. Sumner declared, made "no provision fur
the real question ; " and he then proceeded to set forth the
"true grounds of complaint" of the United States against
Great Britain. In this catalogue the first article was the eon-
cession to the Confederacy of "ocean belligerency," which was
described as " the first stage in the depredations on our com-
merce." Next came " the building of the pirate ships, one
after another," and their escape with so much of negligence on
the part of the British Government as to " constitute suffer-
ance, if not connivance," and "the welcome and hospitality
accorded" to them. Summing up these articles of coini>laint,
Mr. Sumner said:
" Thus at three different stages the British Government is
compromised : First, in the concession of ocean belligerency, on
which all depended; secondly, in the negligence whicli allowed
the evasioii of the ship, in order to enter upon the hostile expe-
dition 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
widespread consequences which ensued."
Mr. Sumner also referred to the "multitudinous blockade
runners from England" as " kindred to the pirate ships," since
»Mr. Pierce, in his Life of Sumner (IV. p. 389), quotes from Harper's
Weekliff March 16, 1872, the statement that this was ''the most popular
speech that he (Mr. Sumner) ever delivered."
Digitized by LjOOQIC
THE GENEVA AEBITRATION. 511
they <<were of the same bad family, having their origin and
home in England," and since they could not have sailed with-
out "the manifesto of belligerency." Proceeding then to the
reparation due from England, Mr. Sumner estimated the pri-
vate claims at about $15,000,000; but he said that, even in
respect of these, nothing was admitted by the convention; no
rale for the ftiture was established ; while nothing was said
"of the indignity to the nation, nor of the damages to the
nation."
The damages due to the nation Mr. Sumner
"Hationai Claim.." described as follows:
" How to authenticate the extent of national
loss with reasonable certainty is not without difficulty; but it
can not be doubted that such a loss occurred. It is folly to
question it. The loss may be seen in various circumstances:
as, in the rise of insurance on all American vessels; the fate
of the carrying*trade, which was one of the greatest resources
of our country; the diminution of our tonnage, with the cor-
responding increase of B**itish tonnage; the falling off in our
exports and imports, with due allowance for our abnormal
currency and the diversion of war. • • • Beyond the
actual loss in the national tonnage, there was a further loss
in the arrest of our natural increase in this branch of indus-
try, which an intelligent statistician puts at five per cent,
annually, making in 1866 a total loss on this account of
1,384,953 tons, which must be added to 1,229,035 tons actu-
ally lost. The same statistician, after estimating the value
of a ton at forty dollars gold, and making allowance for old
and new ships, puts the sum total of national loss on this ac-
count at $110,000,000. Of course this is only an item in our
bill. • • * This is what I have to say for the present on
national losses through the destruction of commerce. These
are large enough; but there is another chapter, where they
at e larger far. I refer, of course, to the national losses caused
by the prolongation of the war, and tniceable directly to Eng-
land. • • • 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 ocean, —
that it was fed to the end by British supplies, — that it was
encourajred by every well-stored British ship that was able to
defy our blockade, — that it was quickened into frantic life with
every report from the British pirates, flaming anew with every
burning ship. * • • Not weeks or months, but years,
were added in this way to our war, so full of costly sacrifice.
* • • The sa(;rifice of ])recious life is beyond human com-
pensation ; but there may be an approximate estimate of the
national loss in treasure. Everybody can make the calcula-
Digitized by LjOOQIC
512 INTERNATIONAL ARniTRATIONS.
tioii. I content myself with calling attention to the elements
which enter into it. Besides the blocka<Us there was the pro-
longation of the war. The rebellion was suppressed at a
cost of more than four thousand million dollars, a considerable
poition of which has been already paid, leaving twenty-live
hundred millions as a national debt to burden the people. If,
through British intervention, the war was doubled in duration,
or in any way extended, as can not be doubted, then is Eng-
land justly responsible for the additional expenditure to whicli
our country was doomed; and whatever may be tlie final set-
tlement of these great accounts, such must be the judgment
in any chancery which consults tlie simple equity of the case.''
After thus presenting the particulars of the national claims,
Mr. Sumner, in anticipation of an objection " that these national
losses, whether from the destruction of our commerce, the pro-
longation of the war, or the expense of the blockade," were
'* indirect and remote, so as not to be a just ground of claim,"
argued that "by an analogy of the common law in the case of
a i)ublic 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 relating to damages, all losses, whether
individual or national," were "the just subject of claim."'
'•Three times," he said, "is this liability fixed: First, by tlie
concession of ocean belligerency, opening to the rebels ship-
yards, foundries, and manufactories, and giving to them a tiag
on the ocean; secondly, by the organization of hostile expedi-
tions, 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
extended 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 c ord."^
On the 13th of April 1869, the day on which
insteuctioni to -^j^^^ Suniner's speech was made, Mr. J. Lothrop
Motley, the eminent historian and a personal
friend of Mr. Sumner, was commissioned as minister to England.
Mi\ Motley's instructions, however, were not completed till
more than a month afterward. Mr. Sumner was consulted in
regard to them,^ but as to the effect to be ascribed to the con-
cession by Great Britain of belligerent rights to the Confed-
erate States his view and that of Mr. Fish were radically
variant. As has been seen, Mr. Sumner's view was that the
'Siimuer^s Works, XIII, 53-93.
-Mr. Fish ami the Alabama Claims, by J. C. Hancrol't Davis, 30-37.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 513
liability of Great Britain for the losses he described was
"fixed: first, by the concessiou of ocean belligerency," and
that on this ground alone the "liability of England" would be
"complete." The view of Mr. Fish was expressed in his in-
structions to Mr. Motley, of the 16th of May 1809, as follows:
"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
it's own relations and those of its citizens and subjects toward
the parties to the conflict, so far as their rights and interests
are uecessaiily afiected 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
questionable, 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 dam-
age to the United States. The President is careful to make
this discrimination, because he is anxious as much as possible
to simplify the case, and to bring into view these subsequent
acts, which are so important in determining the question
between the two countries."^
Mr. Motley was instructed, in his ])rivate as well as his offi-
cial intercourse, to adopt this view, "and to place the cause of
grievance against Great Britain, not so much upon the Issu-
ance of her recognition of the insurgents' state of war, but
upon her conduct under, and subsequent to, such recognition."
In regard to the future course of the negotiations touching the
Alabama claims, he was instru4'<ted as follows:
"Your predecessor has already been directed to notify Lord
Clarendon that the Senate has refused its advice and consent
to the ratification of the convention signed at London on the
14th of January last for the settlement of all outstanding
claims.
" Under some circumstances the announcement made to your
predecessor of the rejection of this convention might be suffi-
' eient. But the magnitude of the claims involved and the
gravity of the questions depending between the two govern-
ments require more than the mere announcement, to which the
' S. Ex. Doc. 11, 41 ('ong. 8 seas. 4-5.
5627 :«
Digitized by LjOOQIC
514 INTERNATIONAL ARBITRATIONS.
delicacy of his own relation to the negotiation limited the
direction to him.
*'This government, in rejecting the recent convention, aban-
dons neither its own claims nor those of its citizens, nor the
hope of an early, satisfactory, and friendly settlement of the
questions depending between the two governments. You will
so say to Lord Clarendon, and, in your discretion, you may
further proceed to communicate the views given below.
''The terms of the convention, having by accident become
known to the public in this country before the action upon it
by the Senate, were disproved by the people with an approach
to unanimity that foreshadowed possibly even a less favor-
able vote on the question of its ratification than was actually
given.
'^This adverse Judgment, while unanimous, or nearly so, in
its conclusion, was not reached by any single train of argu-
ment, nor from any one standpoint of policy, nor with any
single standard of estimate of the claims either of the nation
or of its citizens, nor with the same degree of importance at-
tached to various points that have been discussed in the cor-
respondence referred to in the convention. Various sources
furnished currents running through differing and widely sep-
arated channels, but meeting to form one common stream of
thought.
^^Both with the people and in the Senate, different minds,
viewing it from different standpoints, each measuring by its
own standard and judging in its own way, arrived at the one
conclusion.
''The time and the circumstances under which the conven-
tion was negotiated were very unfavorable to its acceptance
either by the people or the Senate.
*'The nation had just emerged from its periodical choice of a
Chief Magistrate, and having changed the depositary of its
confidence and its power looked with no favor on an attempt
at the settlement of the great and grave questions depending
by those on the eve of retiring from power without consulting
or considering the views of the ruler recently intrusted with
their confidence and without communication with the Senate,
to whose approval the treaty would be constitutionally sub-
mitted, or with any of its members.
"It is wholly unnecessary to say to statesmen of the intelli-
gence which always marks those of the British Empire that the
rejection of a treaty by the Senate of the United States implies
no act of discourtesy to the government with which the treaty
may have been negotiated. The United States can enter into
no treaty without the a<lvice and consent of the Senate, and
that advice and consent to be intelligent must be discriminat-
ing, and their refusal can be no subject of complaint, and can
give no occasion for dissatisfaction or criticism.
"On the 12th of May 1803 a convention between the United
States and Great Britain for settling the boundaries of our
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 515
Dortbeastern and northwestern froutiers was signed at London
by Mr. Rufus King and Lord Hawkesbury, on the part of their
respective governments, and submitted to the Senate by Presi-
dent Jefterson, with a message of the 24th of October in that
year. The Senate approved of the convention, but upon the
condition that the fifth article should be expunged, a condition
which was never complied with.
"On the 31st of December 1806 Messrs. Monroe and Pinkney,
on our part, signed at London a treaty of amity, commerce, and
navigation with Great Britain. This instrument was not
acceptable to President Jefierson, as it contained no article pro-
viding for the security of United States seamen from impress-
ment. Consequently the treaty was never even laid before the
Senate for its consideration.
"A convention for the suppression of the African slave trade
was signed at London on the 13th of March, and submitted to
the Senate by President Monroe, with a message of the 2l8t of
May 1824. The convention, also, was approved by the Senate
with conditions which were not accepted by (Treat Britain.
"Upon one point the President and the Senate and the over-
whelming mass of the people are convinced, namely, that the
convention, from its character and terms, or from the time of
its negotiation, or from the circumstances attending its negotia-
tion, would not have removed the sense of existing grievance;
would not have afforded real substantial satisfaction to the
people; would not have proved a hearty, cordial settlement of
pending questions, but would have left a feeling of dissatisfac-
tion inconsistent with the relations which the President desires
to have firmly established between two great nations of common
origin, common language, common literature, common interests
and objects in the advancement of the civilization of the age.
"The President believes the rejection of the convention to
have been in the interest of peace, and in the direction of a
more i)erfect and cordial friendship between the two countries,
and in this belief he fully approves the action of the Senate.
That action is (juite recent and has been the cause of some
excitement and popular discussion on both sides of the Atlan-
tic, and ]>ossibly of some little disap])ointment, if not of irrita-
tion, in England. The tone of the press and the proclaimed
opinions of some public men in each country suggest that the
present is not the most hopeful moment to enter upon a renewed
discussion, either of the objections to the lately proposed con-
vention, or of the basis of a renewed negotiation. A suspension
of the discussion on these (luestions for a short time (but in
communicating with Lord Clarendon you will be particular to
assure him that the desire on our part is that this suspension
be limited to the shortest possible time consistent with its
object) will allow the subsidence of any excitement or irritation
growing out of the negotiation or of the rejection of the treaty —
will enable the two governments to ax)i)roach the more readily
to a solution of their dili'erences.
Digitized by LjOOQIC
516 INTERNATIONAL ARBITRATIONS.
"The President hopes that Her Majesty's Government will
view the propriety of the suspension in the same light in which
he proposes it, as wholly in the interest and solely with a view
to an early and friendly settlement of the questions between
the two governments.
^^ He hopes that when the question shall again be considered
it may comport with the views of Her ^lajesty's Government
to embra<te within the scope of the negotiation some agreement
by the two governments, defining their respective rights and
duties as neutrals in case the other government becomes unfor-
tunately involved in war with a third power.
"The absence of some agreement or definition on this sub-
ject was among the causes leading to the rejection of the recent
convention, under which, had it been adopted by the two conn-
tries, none of the grave (questions which have arisen would
have been passed upon by a tribunal whose decision either
party (much less other nations) would regard as authority, so
as to prevent repetition or retaliation. It miglit, indeed, well
have occurred in the event of tlie selection by lot of the arbi-
trator or umpire in different cases, involving, however, ])re-
cisely the same principles, that different awards, resting upon
antagonistic principles, might have been made.
"If, however, the two leading maritime commercial nations
of the world establish a rule to govern themselves, each with
respeet to the other, they may reasonably hope that their con-
clusion will be accepted by the other powers, and will become
for the future recognized as a part of the public law of the
civilized world."
While rejecting the claims convention, the Senate adopted
a resolution advising and consenting to the conclusion of a
treaty of naturalization on the basis of the protocol signed by
Mr. Johnson and Lord Stanley. Mr. Motley was furnished
with full i)owers to conclude such a treaty. On the convention
for the arbitration of the San Juan water bouudary, the Senate
did not come to a vote. Mr. Motley was instructed to com-
municate this fact to the British Government.
Mr. Motley had his first interview with Lord
^^^IV'Ia ^^•'^®'^ Clarendon on the lOtli of June, and, although it
with Lord Clarendon. ,. , ^ , . . ' , ' ^
did not affect the international result of the
negotiations, it illustrates the complications to which they
were exposed and forms an integral part of their history. Mr.
Motley, after comnuiuicating the i)urport 4)f his instructions
in regard to the naturalization question and the San Juan
boundary, proceeded to the subject of the rejected claims con-
vention. In so doing he declared that he was liilly sensible of
the "gravity of the occasion" and of the "contingencies'' that
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 517
would depend upon the negotiations concerning sucli *' burning
questions as those comprehended under the simple title of a
convention for the settlement of all outstanding claims.^' The
rejected convention would, be said, have ''covered up a griev-
ance which most certainly would have continued to rankle and
to fester beneath the surface," and those wounds '*must be
l)robed before they could be healed." Mr. Motley also ex-
pressed the conviction that the "aleatory process" provided
for the selection of an umpire was an unworthy method for
disposing of questions hinging on great principles of law and
"involving the welfare of nations and the contingencies of war
and peace."
In regard to the recognition of belligerency, Mr. Motley said
that the President recognized the right of a sovereign power
"to issue proclamations of neutrality" under proper conditions,
but that " such measures must always be taken with a full view
of the grave responsibilities assumed;" that "the famous proc-
lamation of neutrality of May 13, 1861," was not considered by
the United States as justifiable, but that the President desired
it to be used only as showing animus and "as being the foun-
tain head of the disasters which had been caused to the Amer-
ican people, both individually and collectively, by the hands
of Englishmen;" that other nations had issued proclamations
contemporaneously, or nearly so, with that of Great Britain,
but that from Great Britain alone had come "a long series
of deeds, injurious to the United States, as the fruits of the
I)roclaination."
In conclusion, Mr. Motley said that he meant to do his best to
bring about better relations, but that he did not disguise from
himself that "the path was surrounded by perils." It was, he
observed, sometimes thought puerile or unbecoming in political
or international affairs to deal with the emotions, the passions,
or sentiments; but enlightened statesmen, like those of Eng.
land, would never forget that "grave and disastrous misun-
derstandings and cruel wars resulted as often in history from
passionately excited emotions and injured feelings as from cab-
inet deliberations or political combinations." There was, he
declared, " much excitement of feeling and intensity of opinion "
in the United States in regard to the questions at issue, and be
deemed it his duty calmly but earnestly to call attention "to
this grave aspect of affairs." lie "confessed to a despondent
feeling sometimes as to the possibility of the two nations ever
Digitized by LjOOQIC
518 INTERNATIONAL ARBITRATIONS.
understanding each other,'^ or of "their looking into each
other's hearts." '
At the beginning of this interview Lord Clarendon referred
to Mr. Sumner's speech on the rejecteci claims convention, and
it is not improbable that his lordship assumed, as the confer-
ence progressed, that the views expressed in that speech had
been adopted as the basis of Mr. Motley's instructions. The
tone of these instructions was, however, wholly conciliatory.
In preparing them Mr. Fish liad kept three objects in view —
first, to show that the rejection of the claims convention was
not an act of unfriendliness; second, to suggest a suspension
of discussion till the prevailing irritation should subside;
and third, to make it clear that the government of the United
States did not base its claims against Great Britain on the
hitter's concession of belligerent rights to the Confederate
States. Of thcvse three points the last was the most impor-
tant, as well as the most troublesome. It was the most im-
l>ortant not only because it vitally affected the course of future
negotiations, but also because it involved a sovereign right
which it was the interest of all nations to preserve, and for the
exercise of which the Government of the United States now fore-
saw a possible occasion in the insurrection prevailing in Cuba.
It was the most troublesome, because it brought the adminis-
tration into conflict with those who considered the concession
of belligerency as a ground of claim.
It is not to be supposed that Mr. Motley willfully departed
from his instructions. He has declared — and his declaration
should be decisive — that he sincerely endeavored to carry
them out. But it is evident that Mr. Motley treated the ques-
tions at issue as an historian, rather than as a diplomatist.
Instead of refraining from discussion, he precipitated it, sug-
gesting ''the contingencies of war and peace," and confessing
to a "despondent feeling'' as to the "possibility of the two
nations ever understanding each other." In describing the
Queen's proclamation of May 13, 1861, as the "fountain head
of the disasters which had been caused to the American people,
both individually and collectively," he stated the position of
Mr. Sumner instead of that of Mr. Fish on the recognition of
belligerency; nor does he appear to have been conscious of the
radical difference between the views expressed by these states-
men on that subject.
1 S. Ex. Doc. 11, 41 Cong. 3 boss. 5-10.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 51 D
When President Grant became acquainted
Withdrawal of Hego-^i^l^ ^^^^ cliaracter of Mr. Motley's interview
t^cms m n- j^^ requested Mr. Fish to recall him. * Mr. Fish,
however, advised the course, which was taken,
of attracting Mr. Motley's attention to his departure from his
instructions and directing him to inform the minister for for-
eign aifairs that the negotiations on the subject of the Ala-
bama claims, whenever they should be renewed, would be
conducted in the United States. Even before the rejection of
. the Johnson-Clarendon convention, but when it was seen that
it was doomed to defeat, Mr. Fish exi)ressed to the President
the opinion that a pause must be taken in the discussion witli
Great Britain, and that when the excitement and agitation
which would follow the rejection of the convention had sub-
sided the United States should insist that any new negotiations
should be held in Washington.^ Mr. Motley's interview with
Lord Clarendon confirmed the wisdom, if it did not reveal the
necessity, of carrying out Mr. Fish's plan. A year later Mr.
Motley was recalled.
Meanwhile unofficial negotiations were in
^''''"IIJm'*^*^*" progress. In the summer of 1869 Sir John
Kose, ''who was then a menil)er of the minis-
try in Canada, and also a commissioner on the part of Great
Britain to settle the claims of the Hudson's Bay Company and
of the Puget Sound Company against the United States, came
to Washington * • * professedly to make some commer-
cial arrangements between the United States and Canada, but
really to sound our government as to the possibility of settling
the Alabama claims."* Indeed, Sir John seems to have acted as
a confidential intermediary of the British foreign office not only
to sound the government, but also to ascertain the state of
public feeling and to gather the opinions of leading members
of diff'erent political parties in the United States on that sub-
ject.^ In an interview with Mr. Fish in the summer of 1869,
Sir John Rose suggested the Duke of Argyle and Mr. Forster
as special envoys to the United States to treat on the pend-
ing diflFerences. Mr. Fish, however, though he had himself
suggested the idea of sending a special envoy to the United
* Mr. Fish to Dr. Lieber, May 30, 1871, Memorial Proceedings of the
New York Legislature, 1894, 45.
^ Mr. Fish and the Alabama Claims, 44.
•"» Speech of Earl Granville, London Times, June 13, 1871.
Digitized by LjOOQIC
520 INTERNATIONAL ARBITRATIONS.
States/ *-8aid the time had not arrived; that the British peo-
ple were too much irritated by the rejection of the treaty and
by Mr. Sumuer's speech," and that the American people "were
too much carried away with the idea of paying off the cost of
the war with the amoniit of damages that Mr. Sumner's speech
had made oat against Great Britain." Mr. Fish said ^<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 tlie way for a settlement; and
he outlined to Sir John the exact scheme for settlement which,
was adopted a year and a half later." =^
On the 2r)th of September 1869 Mr. Pish
istT*** ^ addressed to Mr. Motley an extended instruc-
tion, in which he fully set forth the injuries
which the United States felt they had sustained. This instroc-
tion Mr. Motley was told that he was at liberty to read to Lord
Clarendon,'^ but in a separate and confidential instruction of
the same day he was informed that he was to consider this
permission as a command.^ This step was followed by others.
The British minister at Washington, Mr. Thornton, under the
instructions of his government, conferred with Mr. Fish at the
Department of State, and efforts were made to find a common
ground of negotiation. Ttiis end, however, was not easily at-
tained. More than a year passed, and the two governments
were apparently still far apart in their views. In his annual
message to Congress of l)e(*eniber 5, 1870, President Grant
referred, with an expression of regret, to the fact that no con-
clusion had been reached. The cabinet of London, he said, so
far as its views had been expressed, did not appear to be will-
ing to concede that Her Majesty's Government was guilty of
any negligence, or did or permitted any act during the war by
which the United States had a just cause of complaint. "Our
firm and unalterable convictions," said President Grant, "are
directly the reverse;" and he then made a recommendation
» Mr. Fish, in a letter to Dr. Lieber, May 30, 1871, said: "The sending a
special mission — some person of high official rank — was suggested by me
in May 1869, and was the subject of cIoko confidential conversation and
correspondence with influential persons 4ii England as early as the Ist of
June 1869. The correspondence was ccm tinned in this mode nntil the Amit
ripened."
3 Mr. Fish and the Alabama Claims, 45-46.
«For. Rel. 1873, part 3, p. 336.
* MSS. Dept. of State.
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THE GENEVA ARBITRATION. 521
which could not fail to be impressive of the gravity of the situ-
atiou. "I therefore recommend to Cougresa," said the Presi-
dent, ^^to aathorize the appointment of a commission to take
proof of the amounts, and the ownership of these several claims,
on notice to the representative of Her Majesty at Washington,
and that authority be given for the settlement of these claims
by the United States, so that the government shall have the
ownership of the private claims, as well as the responsible con-
trol of all the demands against Great Britain. It can not be
necessary to add that, whenever Her Majesty's Government
shall entertain a desire for a full and friendly adjustment of
these claims, the United States will enter upon their considera-
tion with an earnest desire for a conclusion consistent with the
honor and dignity of both nations.''
On the 9th of January 1871 Sir John Rose
* -J. * **" again arrived in Washington on a confidential
mission. On the evening of the same day he
dined with Mr. Fish, Mr. Bancroft Davis, then Assistant Sec-
retary of State, being the only other guest. After dinner a
conference was held, which lasted till between two and three
o'clock in the morning. Mr. Davis has preserved the following
contemporaneous memorandum of it : ^
"MEMORANDUM OF POINTS TAKEN IN A (.CONVERSATION BE-
TWEEN SECRETARY FISH AND SIR JOHN ROSE AT MR.
fish's house JANUARY 9, 1871.
" Sir John Rose stated that he had been requested by the
British Government informally, unofficially, and personally,
as one-half American, one-half English, enjoying the confidence
of both governments, to ascertain what could be done for set-
tling the pending questions between the two governments ; and
that he was authorized to say that, if it would be acceptable
to the Government of the United States to refer all those sub-
jects to a joint commission framed soniething upon the model of
the commission which made the treaty of Ghent, he could say
that the British Government was prepared to send out such a
commission on their part, composed of persons of the highest
rank in the realm. He dwelt upon the importance of settling
these questions now. • ♦ • Mr. Fish replied that before
agreeing to go into such a commission there should be a cer-
tainty of success — for failure would leave things much worse
than they were before — and he asked whether, in going into a
commission, the British Government would be prepared to
admit a liability for what were known as the Alabama claims.
> Mr. Fish and the Alabama Claims, 59.
Digitized by LjOOQIC
522 INTERNATIONAL ARBITRATIONS.
^^ Sir John said that lie woald be wanting in frankness if he
did not state that such a concession would not be made; that,
in his own judgment, the Government of Great Britain would
be found to be liable for the damage committed by the A la-
hamdy and as to the other vessels it would be doubtful ; that the
government was prepared to agree to a submission to arbitra-
tion, either to continental jurists, or to a mixed court composed
of English and American jurists or to any other tribunal that
the two governments might agree upon; but that the feeling
in England was such that the government would not be sup-
ported in Parliament in agreeing to admit the liability for the
acts of the Alabama.
^^ Mr. Fish replied that with equal candor he must say that
this government would not, in his judgment, be supported by
the Senate or by the country in making a treaty which did not
recognize that liability; that under our Constitution one third
of the Senate and one Senator in addition could defeat a treaty;
that most of tbe present Senators had voted against the John-
son-Clarendon treaty, and were committed as to the liability of
England as to the Alabama ; that the discuvssion made at that
time had left a feeling among the people which would tend to
prevent any change in the vote of the Senate; that the changes
which were to be made in the Senate on the 4th of March
would probably not make much change in this respect; that
he thought that the nation might possibly be satisfied with a
recognition of liability for the acts of the Alabama, and be
reconciled to the submission of the liability as to the other
vessels; and that therefore unless Great Britain could concede
that point it would be useless to go into a commission.
"Sir John Rose endeavored at great length to combat these
views, and urged in a forcible way his own conviction that, if
the two nations once met in commission, the commissioners
would not part without agreeing to a settlement. He also
argued, quoting Mr. Lowe, that the people who furnished the
money for and superintended the fitting out of the A labama,
who were Americans, were now in the full enjoyment of their
rights as citizens of the United States, and that the question
was a domestic one between this government and its citizens.
" Mr. Fish replied that the British Government was estopped,
by the recognition of the South as belligerents, from denying
their character as public enemies. He repeated the necessity
for a recognition of liability as to the Alabama as a prelimi-
nary. He said that he did not ask England to humiliate her-
self— to say that her laws were inefficient, or her government
unfaithful'to its duties; that it seemed to him that England
might very well feel that, owing to the negligence or unfaith-
fulness of a local officer, this vessel had been allowed to escape
against the directions of the government, and that thereby
the government had become liable; and should couple this
statement with an expression of regret for what had taken
place to disturb the relations of the two countries, — that less
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 523
than this the United States ought not to be and would not be
satisfied with.
" Some discussion was also had as to the manner in which
the questions should be raised.
"Sir John Kose said that the British Government could not
take the initiative in the question of the Alabama claims, and
suggested that, in case the way for a settlement seemed clear,
the British Government should propose a commission for the
settlement of the Ban Juan boundary, the fisheries, and other
Canadian questions, and that the United States should accede,
provided the claims for the acts of the vessels should be also
considered. Mr. Fish assented to this."
On the 11th of January Sir John Eose called
MemorMidumof Jan-j^^ the Department of State and read to Mr.
uary 11, 1871. *^
Davis, confidentially, a paper which he had
prepared.' After reading this paper. Sir John left it with Mr.
Davis. It was returned by Mr. Fish on the following day,
*'with thanks, and with hopes.'''' Owing to its importance, it is
inserted here at length:
["Strictly confidential. — Mem.]
"The commissioners to treat on various questions ^of dif-
ference between the U. 8. & G. B.: — to provide by l*rotocoIs,
Treaties, or otherwise, means by which a fnll and final adjust-
ment and satisfactory determination of the same may take
place,' or some such words.
"The preamble of the English Com. to contain words of simi-
lar import to those which preceded the negotiations in 1814 as
to the desire of H. M. to put an end to these differences — ^to
lay, — upon a just and liberal basis which shall secure the rights
and interests of both nations, — the foundation of lasting bonds
of amity between them.
"Would not sending High Comrs. here be accepted as a
friendly advance in reference to past events, and wonld not
terms made in Washington through such a body be more likely
to be acceptable than the same terras would be if arranged in
England by ordinary diplomatic process!
"The commissioners by discussions and protocols would soon
limit the points of difference. The idea is, not that the High
Commissioners should adjudicate on the questions themselves,
but arrange by Treaties, modes or machinery of doing so.
"The great difficulty would probably be as to the mode by
which the question whether England was liable for the Ala-
hama^s depredations should be determined; — whether, if the
Commissioners disagreed, the decision should be left to a
friendly power to be chosen by the two govemments;-
' Mr. Davis MS. Jonmal.
Digitized by LjOOQIC
524 INTERNATIONAL ARBITRATIONS.
whether tbe opinions of a Body of eminent Jurists, including
American, English and Foreign, might not be taken on the
facts as they appear in the Diplomatic Correspondence t and be
the guide as to the existence and measure of liability, which
opinions should form the rule for the Mixe<l Commissioners, to
be named and suit judicially under the treaty.
^'It is hardly conceivable that High Commissioners meeting
in a pacific spirit, and selected specially with reference to their
acceptability to each country, should not find some method of
adjustment which would be satisfactory to both nations. They
would, of course, be subject to daily instructions from their
governments; and mutual concessions could be thought of to
meet the various cases of difficulty as they arose.
"It is not probable that their negotiations would be very
prolonged, as no questions of fact requiring evidence would
arise; and would it not be possible to bring the negotiations
to such a point as that the assent of the Senate to the results
might be obtained before it adjourned f
"Is it not desirable, also, if these general views are thought
favorably of, that they should be initiated before General
Schenck leaves! ^ The approaching fishing season may bring
renewed controversy and rouse feelings which may obstruct
pacific action in reference to the other more serious questions.
It would seem difficult now to recede from the policy of exclu-
sion,— at all events not unless a Conference on the subject had
actually begun.
"Then the English Parliament (iK)Ssibly an European Con-
gress) will be in session about the time the new Minister
arrives; and subjects of pressing exigency growing out of the
policy and views of the governments in reference to the Franco-
German war, — the action of Russia on the Black Sea question —
of Prussia on the Luxembourg Treaty, — the Army and Navy
organization, will so force themselves on the attention of Par-
liament and the Government that, however earnest their desire
might be to carry on immediate direct negotiations with Gen-
eral Schenck, much delay may unavoidably occur; and it is
impossible to say what may take place before the Autumn, the
period which we might naturally look to as that when diplo-
matic negotiations might make some ]>rogress.
"Supposing, then, that an attemx>t was made to have Sir
Edward Thornton authorized by cable, now, to propose such a
Commission with reference to all other subjects — omitting the
'Gen. Robert C. Schenck. After Mr. Motley was asked to resign Mr.
Frederick T. Frelinc^buyscu was nominated as minister to Kugland. His
nomination was promptly contiimed by tbe Senate, bat for personal rea*
sons he declined the post. (Mr. Fish to Mr. Frelinghnysen, Jnly 21, 1870;
Mr. Frelinghnysen to Mr. Fish, July 30, 1870. MSS. Dept. of State.) Gen-
eral Schenck was subsequently appointed. He was requested to delay his
departure for London, with a view to his becoming a member of the joint
commission. (For. Rol. 1871, p. 432.)
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 525
Alabama — and that the U. S. were to say they would only
agree, provided the Gominissioners were authorized to deal
with the A. and all the other subjects as well as with a view
to a comprehensive settlement; — might not the English Oom-
ihissioners come out at once, and would it not be politic that
General Schenck should be one of the American Commissioners
(as were the U. B. Minister to France and England on the
negotiations in 1814) !
'*The other alternative (which, however, involves the risks
attending delay and which would leave the proceedings with-
out the advantage of General S.'s presence here) would seem
to be that, if the plan now sketched out should be acceptable
to the Government of the United States, the proposals might
be made in England to General Schenck, instead of to the
Government here by Sir E. Thornton, and that his, General
Schenck 's, instructions, prepared with h^pecial reference to the
contingency, might authorize an immediate assent, so that
the Commissioners could leave England at an early day, and
the Senate might during the present session approve of those
whom the President might be pleased to name here.
"If this course were adopted, it would be desirable to accom-
pany it with some temporary arrangement whereby the risk of
fresh difficulties from the Fishery question during the coming
season should be prevented."
The negotiations had now reached a stage
^^ ^^^^^ * ™^ *^ which it became necessary, in order that
success might be assured, definitely to ascer-
tain the basis on which an agreement might be concluded with
a certain prospect of its ratification by the Senate. With this
view, Mr. Fish on the 15th of January called by appointment
at Mr. Sumner's house and laid before him, as chairman of the
Senate Committee on Foreign Relations, to which any treaty
would have to be referred. Sir John Eose's proposals. Mr.
Sumner on that day gave no answer; but on the 17th oT Janu-
ary he sent to Mr. Fish the following written response:
"MEMORANDUM FOR MR. FISH IN REPLY TO HIS INQUIRIES.
"(1) The idea of Sir John Bose is that all questions and
sources of irritation between England and the United States
should be removed absolutely and forever, that we may be at
peace really, and good neighbors; and to this end all points of
difference should be considered together. Nothing could be
better than this initial idea. It should be the starting point.
"(2) The greatest trouble, if not peril, being a constant
source of anxiety and disturbance, is from Fenianism, which
is excited by the proximity of the British flag in Canada.
Therefore, the withdrawal of the British flag cannot be aban-
Digitized by VjOOQ IC
526 INTERNATIONAL ABBITBATION8.
doned as a condition or preliminary of such a settlement as is
now proposed. To make the settlement complete the with-
drawal should be from this hemisphere, including provinces
and islands.
^^(3) No proposition for a Joint Commission can be accepted
unless the terms of submission are such as to leave no reason-
able doubt of a favorable result. There must not be another
failure.
*'(4) A discrimination in favor of claims arising from tlie
depredations of any particular ship will dishonor the clainiH
arising from the depredations of other ships, which the Ameri-
can Oovernment cannot afford to do; nor should the English
Government expect it, if they would sincerely remove all
occasions of difference.
'•0. S.
"17th Jan. '71.^'
What would have been the effect of a de-
Memoni^of Mr. ^^^^ ^^^ ^^^ withdrawal of the British flag
from the western " hemisphere, including prov-
inces and islands," as a "condition or preliminary" of such a
settlement as was proposed, it is not difficult to conjecture* ;
and, after reading the foregoing memorandum, Mr. Fish de-
termined to continue the negotiations on the lines on which he
had begun them, relying on his ability to gather sufficient sup-
port to overcome any opposition which he might encounter in
so doing. To this end he drew up a tentative memorandum of
a reply to Sir John Eose's proposals, which was as follows:'
[" strictly confideDtial.]
"MEMORANDUM (FOE CONSIDERATION BY H. F.)
" The Commissioners, or Envoys, or Plenipotentiaries (how-
ever called) on either side should be authorized and empowered
to treat of, settle and adjust all subjects of difference between
the two governments, so as to remove all sources of irritation
and to secure a substantial and lasting xieace and friendship
between the two countries.
" The precise language to be used in the Commissions, or
Preambles, or preliminary correspondence, or proposals, cannot
^ The Hon. Geo. F. Edmunds, in bis memorial address on Mr. Fish, before
the legislature of New York, referring to this stage of the negotiations, says :
''In doing this work Mr. Fish had to contend with some most astonishing
and extravagant propositions, insisted upon by some gentlemen high in
public life as a sine qua non of entering into any negotiations at all. ^>oDle
of them were such that there is good reason to believe that the mere
statement of them would have pat an end to all negotiations at onoe.^
(P. 47.)
»Mr. Davis' MS. Journal.
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THE GENEVA ARBITRATION. 527
be now determined; but, if the two governments desire a
friendly settlement of all differences and of all probable or
possible causes of difference, they will each naturally use lan-
guage looking to that end.
" No copy of the Powers of the British Commissioners who
negotiated the Treaty of Ghent is found in the Department of
State. The form stated in Sir John Hose's Mem. does not
appear objectionable; but, not having the * words which pre-
ceded the negotiations in 1814,' it is thought advisable not to
refer to a paper of which we have no copy.
*'The Government of the United States in all its branches
is desirous of an early, friendly, full, and complete adjustment
of all differences and of all questions of difference with Great
Britain, and of the removal of all causes likely to give rise to
differences or to irritation in the future.
" It is believed that the proposal by Great Britain to send
Commissioners here would be regarded and accepted a^ a
friendly advance in reference to past events.
'•• The idea that ' the High Commission should not adjudicate
on the questions themselves, but arrange by Treaties modes or
machinery of doing so,' is, perhaps, not fully understood. It is
supposed that, upon the questions (for Instance) of the Fisheries,
San Juan, the Navigation of the St. Lawrence, the admission
of liability of Great Britain for what are commonly known as
the ^Alabama Claims,' in whole, or in part, the definition of Pub-
lic Law or rule to be established between the two powers as to
maritime neutrality, &c., the negotiators (by whatever name
known) could and should themselves treat, adjudicate and
determine.
" If the idea be only that the High Commissioners are not to
adjudicate ui>on the amounts or validity of claims, but are
'to arrange by Treaties modes or machinery of doing so,' it is
approved.
*' Possibly the High Commissioners (this designation is used
throughout to indicate the Commissioners or Negotiators of
both and of each Power by whatever name commissioned) may
agree upon a gross or * lumping' sum to be paid to the United
States in satisfaction for what are known as the 'Alabama
Claims,' and for the expense to which the Government of the
United States was put in the pursuit and capture of the vessel
or vessels which intiicted the damage. If not, but if they
settle the question of liability, the amount of liability would
seem a i)roper subject for reference to a mixed commission with
judicial functions, and the composition or mode of forming
such mixed commission should be a subject of consideration
and agreement by the ' High Commission.'
*' Ou the subject of the 'Alabama Claims,' a reference, in case
one be agreed upon in any event, of the facts as they appear
in the Diplomatic Corresi)ondence, might operate unjustly.
Such facts as could be agreed upon by the ' High Commission '
might be submitted, as well as those which appear in the
Digitized by LjOOQ IC
528 INTERNATIONAL ARBITRATIONS.
Diplomatic Correspondence, and each party should be left at
liberty to prove other pertinent facts, and to present such
arguments in support of, or in opposition to each claim, as it
may desire.
"The great importance of arranging the Fisheries question
before the commencement of another season is fully appreci-
ated— indeed that importance can not be exaggerat.ed or
overstated.
<< If, therefore, the negotiations can be brought to such a
point as to secure the assent of the Senate of the United
States (and it cannot be too strongly enforced that without such
assent no Treaty or Negotiations can under the Constitution of
the United States become operative or binding upon the United
States) before it« jidjournment, it is greatly to be desired.
Every effort of the Execntive department of the Government
may be relied upon to meet any corresponding effort of the
Government of Great Britain to arrive at the earliest possible,
friendly, honorable, satisfactory solution of the questions which
exist between them.
" It is necessary and due to candor to note that unless Great
Britain is willing to have the ' High Commission ' declare her
liability for the depredations of the 'Alabama,' including the
expense of the Government of the United States in her pur-
suit and capture, and to express some kind words of regret
for past occurrences, it were better to take no steps — failure
would leave things worse than they are.
"It would be expected also that the principles on which the
liability for the * Alabama' may be admitted or declared, should
be applicable, so far as the fa<*.ta may justify or apply, to the
other cruisers.
" It is also due to candor to uotAi that the * Mem.' of Sir
John Kose has been submitted to tlie Chairman of the Sen-
ate Committee on Foreign Kelatious (to which Committee all
Treaties or Conventions are referred by the Senate before their
advice upon them), and that Senator has expressed the opin-
ion that the * withdrawal of the British flag cannot be aban-
doned as a condition or preliminary of such a settlement as is
now proposed. To make the settlement complete the with-
drawal should be from this hemisphere, including provinces
and islands;' he seems to think this necessary, in order Hhat
we may be at peace and good neighbors.'
"General Schenck's departure will be delayed for a short
time to ascertain whether the plan suggested by Sir John
Hose will be carried into effect.
"The proposed mode of introducing the proposition is
acceptable.
"The session of the Senate will probably not continue beyond
the latter part of March — it might possibly be continued if
the proceedings of the High Commissioners give promise of a
satisfactory conclusion.
**This body will not again cimveue after its adjournment in
Digitized by VjOOQ IC
THE GENEVA ARBITRATION. 529
the spring, until December next — in the meantime there will
be another Fishing season with its complications, if not its
perils. No Convention or arrangement can receive the sanction
of that body until December, unless entered into before the
middle or end of March.''
After preparing this memorandum, Mr.
Conftarenoe of Janu- j^^igi^ij^i^ consultations with leading Senators,
ary 24, 1871.
Nor did he confine himself to representatives
of his own party. He took counsel with Mr. Bayard and Mr.
Thurman, and perhaps with others on the Democratic side of
the chamber, and received assurances of support in his efforts
to bring about an amicable settlement. After a week wisely
and busily spent in thus making sure of his ground, he met
Sir John Rose again, and held with him a conversation, of
which Mr. Bancroft Davis, the only other person present,
made at the time the following record : ^
*' MEMORANDUM OF A CONVERSATION BETWEEN MR. FI«H
AND SIR JOHN ROSE, AT MR. FISH'S HOUSE, JANUARY 24,
1871.
^^ Mr. Fish stated that Sir John Rose's memorandum had
been carefully considered by himself; that there had been de-
lay in answering it, in consequence of dlDiculties and embar-
rassments with which Sir John Eose was familiar; that each
branch of the Government of the United States was anxious
to meet any friendly advance by Great Britain in such a cor-
dial way as to secure the establishment of permanent friendly
relations between the two countries, and to put a stop to all
sources of irritation; that he, Mr. Fish, had prepared what he
had thought might be a reply to Sir John Rose's Mem., but,
on reflection, and on consultation with some leading Senators
and others, it was thought best not to insist on certain matters
specifically therein referred to. Mr. Fish then read his mem-
orandum, commenting as he read. On the general subject of
the matters to be postponed for the consideration of the Judi-
cial mixed commission, explanations took place so that it
appeared that the understanding of Mr. Fish and Sir John
was alike on that point.
"With regard to the admission of the liability on the Ala-
bama cVaXmSy Mr. Fish said that on consultation he had con-
cluded that it was not best to make that specific statement;
but, instead, to say that it would be essential that some impor-
tant concessions should be made as to that class of claims, and
some expression of regret at what had occurred; that it had
been suggested that, if the Alabama claims were separated
> MS. Journal.
5627 34
Digitized by LjOOQIC
530 INTERNATIONAL ARBITRATIONS.
from those of the other vessels, it would secure the opi)08itioi]
of the holders of other claims to the assent of the Senate to
any treaty that mi^irlit be negotiated; and that, therefore, he
preferred to make the general statement that important con-
cessions must be made. Sir John Kose suggesteil that, if it
should be determined that such concessions should be made,
they could be made in the protocols as the results of the
deliberations; to which Mr. Fish assented.
'*Mr. Fish showed Sir John Rose, in confidence, the Mem. of
Mr. Sumner, which he read and returned. Mr. Fish then said
that it had been decided by this government that the best
interests of both countries demanded that, should Great Britain
send Commissioners out on the basis indicated, they should
be received by this government in the spirit in which they
were sent, and no effort spared to secure a favorable result,
even if it involved a conflict with the Chairman of the Com-
mittee on Foreign Relations in the Senate.
"Sir John Rose then said that he should at once communi-
cate by cable the result of the interview, and, as it was desira-
ble that there should be no misunderstanding of the scope of
Mr. Fish's observations, he wished to submit his dispatch to
Mr. Fish before sending it. Mr. Fish said that he should be
at Cabinet after twelve — then Sir John Rose could judge for
himself whether to lay before Mr. Fish what he had to say.
"Sir John Rose asked permission to take with him Mr. Fish's
memorandum. Mr. Fish gave his assent, it being xmderstood
that it was a crude paper, and did not represent Mr. Fish's
views except so far as it agrees with the purport of this
conversation.
"Sir John Rose asked if this government had any suggestions
to make as to the number of Commissioners on each side —
whether it was desirable to have the same number from each
government — that the British Government would probably
wish to name Sir Edward Thornton, and that it might also be
expedient to have Canada represented. Mr. Fish said that it
was immaterial, as each government would have but one vote,
and that tliis government also might find it convenient to have
a large number of Commissioners.
"•Mr. Fish again dwelt on the importance of an early organi-
zation of a Commission, if there was to be one — to which Sir
riohn Rose gave assent.''
The purport of this interview, comprehend -
ommmuca on o ^ ^^^^ substance of what Mr. Fish read from
Lord GranviUe, , . , ,, « , ,
his memorandum, as well as of what ne stated
orally, wns immediately communicated to Earl Granville, Her
Majesty's principal secretary of state for foreign affairs, in a
telegram signed by Sir Edward Thornton, of wliicli Sir John
Hose subsequently gave Mr. Fish a copy. In this telegram
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 531
it was stated that if Her Majesty^s Government would i)roi)08e
a high commission to treat on the subject of the fisheries and
on the other questions affecting the relations of the United
States to the British i>ossessions in North America the United
States would formally assent, on condition that the matters in
controversy commonly known as the Alabama claims should
be treated of by the commission and put in the way of final
and amicable settlement, the mode of settling all other claims
to be simultaneously, but separately, considered by the com-
mission; that while the United States cordially acquiesced in
this plan, they desired to say that no conclusion reached by
the commission would give public satisfaction, unless it in-
volved important concessions as to the liability of England
for the depredations of the Confederate cruisers generally,
embracing both individual losses and the cost of capturing
such cruisers, and that they would expect the British commis-
sioners to be confidentially instructed in this sense, and that
the United States also hoped that in the protocols some expres-
sion of regret, not inconsistent with the dignity of England,
nor involving an admission of national wrongdoing, might be
made.
Earl Granville willingly assented to these
^^ terms, excepting those that related to liability
for the acts of the Confederate cruisers. He
was prepared to express regret for the fact of the escape and
depredations of the Alabama, and he was ready to negotiate
as to the future obligations of maritime neutrality; but he
insisted on the arbitration of the points of law involved in the
Alabama question, and declared that Her Majesty's Govern-
ment could not adopt any foregone conclusion as to the pay-
ment of money. Under the circumstances Mr. Fish, having
frankly stated what the Government of- the United States
believed to be necessary to satisfy the country, but impressed
with the advantages that would attend a friendly discussion
by high commissioners at Washington, decided to postpone
for the moment the question of liability, leaving it to Her
Majesty's Government, in view of what had been said, to give
such instructions on that subject as might seem proper, in
the hope that the right feeling and judgment of the commis-
sioners, and the efforts of both governments, might lead to a
successful result.
Digitized by LjOOQIC
532 INTERNATIONAL ARBITRATIONS.
The accord thus reached was formally ex-
AfloordMtoHegoua- p,,^ggg^ ^^ f^^^ diplomatic notes, which Mr.
Fish has described as <'the official particalan«
of twenty mouths' secret diplomacy.'' * These notes were as
follows :
(1) ^'ir Edward Thornton to Mr. Fish.
^* Washington, January 26^ 1871.
"Sir: 1\\ compliance wich an instruction which I have re-
ceived from Earl Granville, I have the honor to state that Her
Majesty's Goveniment deem it of importance to the good rela-
tions which they are ever anxious should subsist and be
strengthened between the United States and Great Britain,
that a friendly and complete understanding should be come to
between the two governments as to the extent of the rights
which belong to the citizens of the United States and Her
Majesty's subjects, respectively, with reference to the fisheries
on the coasts of Her Majesty's possessions in North America,
and as to any other questions between them which affect the
relations of the United States toward those possessions.
*' As the consideration of these matters would, however, in-
volve investigations of a somewhat complicated nature, and as
it is very desirable that they should be thoroughly examined,
1 am directed by Lord Granville to propose to the Government
of the United States theappointmentof a Joint High Commis-
sion, which shall be composed of members to be named by
each government; shall hold its sessions at Washington, and
shall treat of and discuss the mode of settling the different
questions which have arisen out of the fisheries, as well as all
those which affect the relations of the United States toward
Her Majesty's possessions in North America.
" I am confident that this proposal will be met by your gov-
ernment in the same cordial spirit of friendship which has
induced Her Majesty's Government to tender it, and I can not
doubt that in that case the result will not fail to contribute to
the maintenance of the good relations between the two coun-
tries, which I am convinced the Government of the United
States, as well as that of Her Majesty, equally have at heart.
'' I have the honor to be, with the highest consideration, sir,
your most obedient, humble servant,
"Edward Thornton.
*' Hon. Hamilton Fish, d-c, d-v.
1 Mr. Fish to Dr. Lieber, May 30, 1871.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 533
(2) Mr. Fish to Sir Edward Thornton.
"Department of State,
" Waahington^ January 30, 1871.
'* Sir: I have the honor to acknowledge the receipt of your
note of January 2Q, in which you inform me, in compliance
with instructions from Earl Granville, that Her Majesty's Gov-
ernment deem it of importance to the good relations which
they are ever anxious should subsist and be strengthened
between the United States and Great Britain, that a friendly
and complete understanding should be come to between the
two governments as to the extent of the rights which belong
to the citizens of the United States and Her Majesty's subjects,
respectively, with reference to the fisheries on the coasts of
Her Majesty's possessions in North America, and as to any
other questions between them which affect the relations of the
United States toward those possessions; and further, that as
the consideration of these questions would involve investiga-
tions of a somewhat complicated nature, and as it is very
desirable that they should be thoroughly examined, you are
directed by Lord Granville to propose to the Government of
the United States the appointment of a Joint high commis-
sion, which shall be composed of members to be named by each
government; shall hold its sessions at Washington; and shall
treat of and discuss the mode of settling the different ques-
tions which have arisen out of the fisheries, as well as all those
which affect the relations of the United States toward Her
Majesty's possessions in North America.
" I have laid your note before the President, who instructs me
to say that he shares with Her Majesty's Government the appre-
ciation of the importance of a friendly and complete under-
standing between the two governments with reference to the
subjects specially suggested for the consideration of the pro-
posed joint high commission, and he fully recognizes the friendly
spirit which has prompted the proposal.
" The President is, however, of the opinion that without the
adjustment of a class of questions not alluded to in your note,
the proposed high commission would fail to establish the per-
manent relations and the sincere, substantial, and lasting
friendship between the two governments which, in common
with Her Majesty's Government, he desires should prevail.
" He thinks that the removal of the differences which arose
during the rebellion in the United States, and which have
existed since then, growing out of the acts committed by the
several vessels which have given rise to the claims generically
known as the Alabama claims, will also be essential to the
restoration of cordial and amicable relations between the two
governments. H e directs mo to say that, should Her Majesty's
Government accept this view of the matter, and assent that
this subject also may be treated of by the proposed high com-
mission^ and may thus be put in the way of a final and amicable
Digitized by VjOOQ IC
534 INTERNATIOXAL ARBITRATIONS.
settlement, this (Toyerumeut will, with inuch pleasure, appoint
high commissioners on the part of the United States to meet
those who may be appointed on behalf of Her Majesty's Gov-
ernment, and will spare no efforts to secure, at the earliest
practicable moment, a just and amicable arrangement of all
the questions whicli now unfortunately stand in the way of an
entire and abiding friendship between the two nations.
<<I have the honor to be, with the highest consideration, sir,
your obedient servant,
*' Hamilton Fish.
"Sir Edward Thornton, K. C. B., d-c, cC^c, dy.
(3) Sir Edward Tfwrntoti to Mr. Fish.
** Washington, i^efcrtmry i, 1871.
"Sir: I have the honor to acknowledge the receipt of your
note of the 3()th ultimo, and to offer you my sincere and cor-
dial thanks for the friendly and conciliatory spirit which per-
vades it.
" With reference to that part of it in which you state that the
President thinks that the removal of the differences which arose
during the rebellion in the United States, and which have ex-
isted since then, growing out of tlie acts committed by the
several vessels which have given rise to the claims generically
known as the Alabama claims, will also be essential to the
restoration of cordial and amicably relatioris between the two
governments, I have the honor to inform you that I have sub-
mitted to Earl Granville the opinion thus expressed by the
President of the United States, the friendliness of which, I
beg you to believe, I fully appreciate.
"i am now authorized by his lordship to state that it would
give Her Majesty's Cioveniment great satisfaction if the claims
commonly kiiown by the name of the Alabama claims were sub-
mitted to the consideration of tlie same high commission by
which Her Majesty's Government have proi)osed that the ques-
tions relating to the British possessions in North America should
be discussed, provided that all other claims, both of British
subjects and citizens of the United States, arising out of acts
committed during the lecent civil war in this country, are
similarly referred to the same commission. The expressions
made use of in the name of the President in your above-men-
tioned note with regard to the Alabama claims convince me
that the Government of the United States will consider it of
importance that these causes of dispute between the two coun-
tries should also, and at the same time, be done away with, and
that you will enable me to convey to my government the assent
of the President to the addition which they thus propose to
the duties of the high commission, and which can not fail to
Digitized by LjOOQIC
THE GENEVA ARBITRATIOK. 535
make it more certain that its labors will lead to tlie removal
of all diflferences between the two countries.
"I have the honor to be, with the highest consideration, sir,
your most obedient, humble servant,
''Edward Thornton.
"Hon. Hamilton Fish, tC-c, dr., tix*.
(4) Mr, Fi4fh to Sir Edward Thornton.
''Department op State,
*' Washington, February 5, 1871.
'' Sir : I have the honor to acknowledge the receipt of your
note of the 1st instant, in which you inform me that you are
authorized by Earl Granville to state that it would give Her
Majesty's Government great satisfaction if theclaims commonly
known by the name of the Alabama claims were submitted to
the consideration of the same High Commission by which Her
Majesty's Government have proposed that the questions rela- *
ting to the British possessions in North America should be
discussed, provided that all other claims, both of British sub-
jects and citizens of the United States, arising out of acts com-
mitted during the recent civil war in this country, are similarly
referred to the same commission.
"I have laid your note before the President, and he has
directed me to express the satisfaction with which he has
received the iutelligence that Earl Granville has authorized
you to state that Her Majesty's Government has accepted the
views of this Government as to the disposition to be made of
the so-called Alabama claims.
" He also directs me to say, with reference to the remainder of
your note, that if there be other and further claims of British
subjects, or of American citizens, growing out of acts commit-
ted during the recent civil war in this country, he assents to
the propriety of their reference to the same High Commission;
but he suggests that the High Commissioners shall consider
only such claims of this description as may be presented by the
governments of the respective- claimants at an early day, to
be agreed upon by the commissioners.
" I have the honor to be, with the highest consideration, sir,
your obedient servant,
"Hamilton Fish.
"Sir Edward Thornton, K. C. B,, dx,, c£y., dr."
On the 9th of February 1871 President
Co ^m' Grant sent to the Senate the names of five
commissioners, all of whom were promptly
confirmed. The joint high commission was organized on the
Digitized by LjOOQIC
536 INTERNATIONAL ARBITEATIONS.
27th of the same month. Of its personnel Mr. Bancroft Davis
has given the following account : ^
"The Secretary of State was chairman on the side of the
United States, and from the beginning to the end his was the
inspiring, regulating, and dominating mind. He formnlated
on behalf of the United States the plan for the settlement of
these long-standing and momentous difiPerences. To the end
he controlled the conduct of the American side in tbe conten-
tions at Geneva, and infused courage into thosei;yho were begin-
ning to wilt in face of the British outcry against the American
Case. He had the steadfast and loyal support of the President
throughout, and it was of inestimable value.
"Next Mr. Fish upon the American side was the venerable
Samuel Nelson, then the eldest justice in time of service, as
well as in years, upon the bench of the Supreme Court of the
United States. In politics he was opposed to the administra-
tion which invited him to serve his country as a member of
this commission, but he cheerfullj' complied with its request
His counsel was alwnys given when called for, and was never
overruled. His work there closed an honorable and almost
unparalleled career of nearly fifty years of judicial service.
When the Court m^t again he was retired at his own request.
"The other members of the commission on the American side
were Robert 0. Schenck, who had been api>ointed as minister
to Great Britain in the place of Mr. Motley, but had not yet
gone to his post; Ebenezer Rock wood Hoar, of Massachusetts,
at one time a judge of the supreme judicial court of that State,
and afterward Attorney-General of the United States at the
beginning of General Grant's administration; and George H.
Williams, of Oregon, who had just cea^sed to represent that
State in the Senate of the United States.
<^On the British side, at the head was Earl de Grey and
Ripon(soon to be known as the Marquis of Ripon), a member
of Mr. Gladstone's cabinet. Sir Stafford Henry Northcote,
member of Parliament from South Devon, was selected from
the opponents of Mr. Gladstone to be a member, as Mr, Justice
Nelson was from the opposition to General Grant. Sir Edward
Thornton, Her Majesty's envoy to the United States, held the
same position in the British ranks that General Schenck held
in ours. Professor jNIountague Bernard, of All Souls' College,
Oxford, and Sir John A. Macdonald, then premier of Canada,
completed the list of British members.
"Lord Tenterden, the under secretary' of state for foreign
affairs, served as secretary on the part of Great Britain. I
served in a similar capacity for the United States, as I held, at
that time, a similar position in the Department of State to that
held by Lord Tenterden in the foreign office."
^ Mr. Fish and the Alabama ClaimB, 70.
Digitized by LjOOQIC
THE GENEVA ARBITKATION. 537
^^^ When the joint high commission was organ-
'"* ized the British commission ca gracefully pro
posed that Mr. Fish shoald avt as presiding
officer. This proposition was declined, with appropriate ex-
pressions of appreciation, on the ground that the appoint-
ment of such an officer would entail an unnecessary formality
of procedure, the effect of which would be to obstruct the free
and direct interchange of views and thus to retard the prog-
ress of the commission. Another preliminary point of proce-
dure most judiciously determined by the commission was that
the daily protocol of its acts should be merely formal, and
should not contain any record either of the proi)Ositions made
or of the discussions upon them, <<so that as negotiations
went on the process of give and take, in mutual concessions,
should not be impeded by previous recorded action."^ Con*
ceming the wisdom of this determination, which was sig-
nally demonstrated in the result. Earl Granville has borne
this testimony: *'They (the high commissioners) had thirty-
seven long sittings, and I will venture to say that if every one
*Mr. Fish and the Alabama Claims, 70. The regular form of protocol
was as follows :
XIV. — ^PROTOCOL OF CONFERKNCE BETWRRN THK HIGH i'OMMISHIONKRS
ON THB PART OF THR UNITED STATKS OF AMERICA AND THE HIGH
COMMISSIONERS ON THE PART OF GREAT BRITAIN.
Washin<jt(>n, March 22y 1871,
The high commis-sioners having met^ the protocol of the conference
held on the 20th of March was read and confirmed.
The high commissioners then proceeded with the conHideration of the
matters referred to them.
The conference was adjourned to the 23d of March.
J. C. Bancroft Davis.
Trnterdrn.
xv.— protocol of conference between thb high commissioners
ON THB PART OF THE UNITED STATES OF AMERICA AND THE HIGH
COMMISSIONERS ON THE PART OF GREAT BRITAIN.
Washington, March S3, 1871.
The high commissioners having met, the protocol of the conference
held on the 22d of March was read and confirmed.
The high commissioners then proceeded with the consideration of the
matters referred to them.
The conference was ad^joume^l to the 25th of March.
J. C. Bancroft Davis.
Tbnterden.
Digitized by VjOOQ IC
538 INTERNATIONAL ARBITRATIONS.
of the ten comiiiissioners, not to mention the two able secre-
taries, had thought it incainbent upon them to show their
patriotism and power of debate for the admiration of the two
hemispheres, the thirty-seven sittings would have been multi-
plied by at least ten times, while the result of the delibera-
tions would have been absolutely nt/."^ All who are familiar
with the history of diplomatic negotiations, or who have had
exi)erienee in conducting them, will acknowledge the force of
Lord Granville's opinion. The proceedings of the joint high
commission, though, from the number and complexity of the
subjects to be treated, somewhat slow, yet, being free from
formality and from set controversy, either oral or written,
were characterized by directness, and by an effort to arrive at
conclusions. "We are on the best of terms," wrote Sir Staf-
ford Northcote, "with our colleagues, who are on their mettle,
and evidently anxious to do the work in a gentlemanly way,
and go straight to the point."^ "1 feel sure," says Mr. Ban-
croft Davis, "that every American member would have heart-
ily responded to these kindly words, and applied them to his
British colleagues."^ The American commissioners, however,
being near their government, were exempt from one inconven-
ience to which their British colleagues were subject. Since the
introduction of the telegraph the discretion with which diplo-
matic agents at a distance from their government were for-
merly intrusted has materially been curtailed, and negotiators
are required to make constant reports, and to act from hand
to mouth under the direction of their official superiors at
home. Eeferring to Earl de Grey's experience in this partic-
ular, Sir Stafford Northcote drops into rhyme:
"The U. S. Commissioners give him some trouble;
He don't blame them for that — its their duty, you know ;
And his Cabinet colleagues, they give almost double —
They do it from love, and he likes it — so, so!"**
'London Times, June 13, 1871.
'^Life, Letters, and Diaries of Sir Stafford Northcote, IL 16.
3 Mr. Fish and the Alabama Claims, 73.
^ Life, Letters, and Diaries of Sir Stafford Northcote, 11.18. Sir Stafford,
referring to the constant interference of the home authorities by cable,
observed that, if it should continue, the British commissioners would not
be able to respond to their American colleagues' "How do you dot'* with-
out telegraphing home for instructions. (P. 15.)
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 539
The general instructions of the British com-
. . missiODers, winch were signed by Lord Gran-
ville, bear date the 9th of February 1871.
They express an earnest desire that the negotiations "should
be conducted in a mutually conciliatory disposition, and with
unreserved frankness," and state that the "principal subjects"
of negotiations "will probably be:
"1. The fisheries.
"2. The navigation of the Eiver St. Lawrence, and privilege
of passage through the Canadian canals.
"3. The transit of goods through Maine, and lumber trade
down the River St. John.
"4. The Manitoba boundary.
"5. The claims on account of the Alabama, Shenandoah, and
certain other cruisers of the sostyled Confederate States.
"6. The San Juan water boundary.
"7. The claims of British subjects arising out of the civil
war,
"8. The claims of the people of Canada on account of the
Fenian raids.
"9. The revision of the rules of maritime neutrality."
In regard to the fifth head, it was pointed out in the British
instructions that the claims preferred on aecount of the Alabama
stood "on a diflferent footing to those arising from the captures
made by the other cruisers, in so far as the Alabama escaped
from Liverpool after evidence had been supplied by the United
States minister of the service for which she was intended."
Her Majesty's Government, it was stated, adhered to the prin-
ciple of arbitration for the settlement of these claims, and
would concur, if the United States proposed it, in jurists prop-
erly selected being made the arbitrators instead of a sovereign,
as in the Johnson-Clarendon convention. At the same time,
though arbitration was considered as the most appropriate
mode of settlement, the commissioners were instructed that
they were at liberty to transmit for the consideration of Her
Majesty's Government any other proposal which might be sug-
gested "for determining and closing the question of these
claims." "For the escape of the Alabama and consequent
injury to the commerce of the United States," the commis-
sioners were authorized to express the regret of Her Majesty's
Government "in such terms as would be agreeable to the Gov-
ernment of the United States and not inconsistent with the
position hitherto maintained by Her Majesty's Government as
Digitized by LjOOQIC
540 INTERNATIONAL ARBITRATIONS.
to the internatioual obligations of neutral nations." The Brit-
ish commissioners were also instructed that "it would be desira-
ble to take this opportunity to consider whether it might not
be the interest of both Great Britain and the United States to
lay down certain rules of international comity in regard to the
obligations of maritime neutrality, not only to be acknowledged
for observance in their future relations, but to be recommended
for adoption to the other maritime powers.'^*
Adverting in a supplementary instruction of the same
day to the revision of the rules of maritime neutrality, Earl
Granville said:
"I have to state to you that the extent to which a neutral
country may be hereafter held justly liable for the dispatch,
after notice, of a vessel under similar circumstances to those
in the case of the Alabama, can not be precisely defined in the
present stage of the controversy ; but there are other points in
which it may be convenient to you to be informed beforehand
that this government are willing to enter into an agreement.
These are:
"That no vessel employed in the military or naval service
of any belligerent which shall have been equipped, fitted out,
armed, or dispatched contrary to the neutrality of [a] neutral
state, should be admitted into any port of that state.
"That prizes captured by such vessels, or otherwise captured
in violation of the neutrality of any state, should, if brought
within the jurisdiction of that state, be restored.
"That, in time of war, no vessel should be recognized as a
ship of war, or received in any port of a neutral state as
a ship of war, which has not been commissioned in some port
in the actual occupation of the government by whom her
commission is issued.
"The first of these rules has been incorporated into the
foreign enlistment act, passed during the last year, and both
the first and second were included in the report of the royal
commission for inquiring into the neutrality laws.''^
The instructions of the American commis-
initmetioiii of the gioners, which were signed by Mr. Fish and
American Commi.-^^^^ date the 22d of February, were brief;
but they were accompanied by a confidential
memorandum, embodying very full references to corres|)ond-
ence in the Department of State, "and to the history of
several of the questions" which might be discussed by the
commission, viz :
"1. The fisheries.
"2. The navigation of the St. Lawrence.
^ Blue Book, North America, No. 3 (1871) ; For. Rel. 1873, part 3, pp. 373-377.
'^Blue Book, North America, No. 3 (1871) ; For. Rel. 1873, part 3, p. 377.
Digitized by V^OOQ IC
THE GENEVA ARBITRATION. 541
"3. Beciprocal trade between the United States and the
Dominion of Canada.
" 4. Northwest water boundary and the island of San Juau.
" 5. The claims of the United States against Great Britain
on account of acts committed by rebel cruisers.
" Claims of British subjects against the United States for
losses and injuries arising out of acts committed during the
civil war in the United States."
The discussion and treatment of these questions the Presi-
dent committed to the joint discretion of the American com-
missioners.^
The original statement in the joint high
^ o^lnA^"**** commission of the complaint of the United
States on the subject of the Alabama claims
was drawn up by Mr. Fish and was read by him on the 8th of
March. The text of it will be given hereafter, when we come to
the controversy that arose in regard to the "indirect claims,"
the term by which the claims discussed by Mr. Sumner as
" national claims ^ came to be known.
At the conferences on the 9th, 10th, 13th,
^^*^*^*^»Q^^*'**^ and Uth of March the joint high commission
was occupied with the consideration of a form
of rules for the definition of neutral duty, as desired by the
American commissioners.^ In the statement of principles read
by Mr. Fish on the 8th of March it was declared to be the duty
of a neutral (1) to use "active diligence" to prevent the "con-
struction, fitting out, arming, equipping, or augmenting the
force," within its jurisdiction, of a \essel whereby war was
intended to be carried on against a power with which it was at
peace; (2) to use like diligence, if such vessel should escape, to
arrest and detain her when she again came within its jurisdic-
tion; (3) to instruct its naval forces, in all parts of the globe,
to arrest and detain a vessel so escaping, wherever found upon
the high seas. It was also declared that a power failing to
observe either of these rules was justly liable for injuries and
> For. Rel. 1873, part 3, pp. 275-370.
•^Mr. Davis' MS. Joarual. At the conference on the 10th of March Mr.
Fish suggested, among other topics for consideration, privateering, the
exemption of private property at sea, and the prohibition of the destruc-
tion of property captared on the high seas "without adjudication by a
competent court. The British commissioners did not think that their
powers would justify their considering these points, and doubte<l the
wisdom of entering upon them while the principal questions before the
commission remained unsettled. (Ibid.)
Digitized by LjOOQIC
542 INTERNATIONAL ARBITRATIONS.
depredations committed and damages occasioned by sncb ves-
sel. The American commissioners regarded these rules as
existing rules of international law; the British commissioners
thought otherwise. On the 9th of March the latter presented
a paper, embodying their individual views, to the effect that a
neutral was bound (1) to take ^treasonable care" that no ship
employed or intended to be employed in the service of a bel-
ligerent should be "equipped for war or suffered to augment
her armament" within such neutral's territory, and (2) if a
ship which had been "equipped for war" in violation of neu-
trality should afterward be found within the jurisdiction, to
detain it, unless it had in the interval been "commissioned as
a public ship of war," or been "deprived of all military equip-
ment and bona fide converted into a ship of commerce." Sub-
sequently, after the American commissioners had presented
another draft of rules. Lord de Grey suggested that the term
"due diligence" be substituted for the term "active diligence;"
and it was done. Lord de Grey also asked whether the rules
l)resented by the American commissioners embodied principles
to which the United States would submit in ftiture. Mr. Fish
and Mr. Justice Nelson said that they were so regarded.
Objection was strongly made by the British commissioners
to including separately the "construction" of a vessel in the
prohibition against fitting out, arming, or equipping. Mr.
Justice Nelson said that, although the word "construction''
was not used in the statute of the United States, the court*
had held that it was covered by the term "fitting out," if the
construction was for hostile purposes. The British commis-
sioners, however, thought the word too broad, and it was ulti-
mately dropped.
Great difficulty was found in the discussion of the question
as to the duty of arresting a vessel that had escapeti and as to
when such duty terminated. In regard to the suggestion made
by the British commissioners on this subject on the 9th ot
March various proposals and counter proposals were made.
On the 14th of March the American commissioners presented
the following paper:
"I. A neutral government is bound to use due diligence to
X)revent the fitting out, arming or equipping within its juris-
diction of any vessel intended to cruise or to carry on war
against a power with which it is nt peace; and also to use like
diligence to prevent the departure from its jurisdiction of any
vessel intended so to cruise or carry on war, such vessel having
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 543
been specially adapted in whole or in part, within such juris-
diction, to warlike use, or armed, fitted out or equipped therein.
"II. A neutral is bound not to permit or suffer either bellig-
erent to make use of its ports or waters as the base of naval
operations, or as the place for the renewal or augmentation of
military supplies, or arms, or the recruitment of men.
"III. A neutral is bound to exercise due watchfulness over
its ports and waters, and over all persons within its jurisdic-
tion, to prevent any violation of the foregoing obligations and
duties.
"IV. A vessel which has departed from the jurisdiction of
a neutral government in violation of the neutrality thereof, if
afterward found within the jurisdiction of that government,
ought to be detained unless she have in the interval been duly
and lawfully commissioned as a public vessel of war; but if
she have been thus commissioned as a public vessel of war, and
be not detained, the national responsibility of such neutral
government continues in respect of injuries and losses occa-
sioned to the aggrieved belligerent subsequent to such depar-
ture, and until the original offense be deposited by the bona
fide termination of the cruise."
The fourth rule it was decided, after much discussion, to
omit. The first three rules the British commissioners took into
consideration and promised to submit to their government.
At the conference on the 5th of April the
<^AiIbun "^ciais^ British commissioners stated that they were
instructed to declare that they could not assent
to the proposed rules as a statement of principles of interna-
tional law which were in force at the time when the Alabama
claims arose, but that Her Majesty's Government, in order to
evince its desire of strengthening the friendly relations between
the two countries and of making satisfactory provision for the
future, agreed that in deciding the questions between the two
countries arising out of those claims the arbitrator should
assume that Her Majesty's Government had undertaken to act
upon the principles set forth in the rules in question. They
then presented a slightly amended draft of the rules, which
was agreed upon. This draft was as follows:
"That 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 carry on
war against a power with which it is at peace; and also to use
like diligence to prevent the dei)arture 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.
Digitized by LjOOQIC
544 INTERNATIONAL ARBITRATIONS.
^'Secondly. Not to permit or saffer either belligerent to
make use of its ports or waters as the base of Daval operations
against the other, or for the parpose of the renews! or ang-
mentation of military supplies or arms, or the recruitment €i
men.
'^Thirdly. To exercise due diligence in its own ports or
waters, and as to all persons within its jurisdiction, to prevent
any violation of the foregoing obligations and duties.
^^It being a condition of this undertaking that these obliga-
tions should in future be held to be binding internationally
between the two countries."
When the foregoing rules were adopted, it was also settled
that the arbitrator should be governed by such principles of
international law, not inconsistent therewith, as he should de-
termine to have been applicable to the case.
At the conferences on the 6th, 8th, 9th, 10th, and 12th of
April the joint high commission discussed the form of the sub-
mission, the manner of the award, and the mode of selecting
the arbitrators. The British commissioners, in response to the
inquiry of their American colleagues, stated that they were
authorized to express, in a friendly spirit, the regret felt by
Her Majesty's Government for the escape, under whatever cir-
cumstances, of the Alabama and other vessels from British
ports, and for the depredations committed by those vessels.
The American commissioners accepted this expression of re-
gret as very satisfactory to them and as a token of kindness,
and said that they felt sure it would be so received by the gov-
ernment and people of the United States.
In the conference on the 13th of April Articles I. to XI.
of the treaty, relating to the Alabama claims, were agreed to.*
After its agreement as to the arbitration of
SnbMqveiit Co er- ^^^ Alabama claims, the joint high commission
was occupied with the other questions referred
to it till the 3d of May.^ On the 4th of May the commissioners
met and directed the entry in the protocol of that day of a
1 Statement entered in protocol of May 4, 1871. (For. Rel. 1873, Part 3,
pp. 397-398.)
-^ It is needless to say that the labors of the commission were attended
with the iiHnnl social accessories. Lang, in his Life, Letters, and Diaries
of Sir Stafford Northcote (IL 12), says: *'In an enterprise like that of the
British commissioners political and social functions are so blended thai
it is difficult to keep their descriptions distinct. Dinner parties, danoee,
receptions, and a queer kind of fox hunt, with picnics and expeditions in
the beautiful Virginia country, alternated wi*th sesioas business and grave
discussion.''
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 546
sammary prepared by the protocolists of all the proceedings of
the commission. On the 6th of May the commissioners again
assembled.
^^Lord de Grey said that, as the joint high commission would
not meet again ♦ ♦ ♦ except for the porpose of signing
the treaty, he desired, on behalf of himself and his coUeagues,
to express their high appreciation of the manner in which Mr.
Fish and his American colleagues had, ou their side, conducted
the negotiations. It had been most gratifying to the British
commissioners to be associated with colleagues who were ani-
mated with the same sincere desire as themselves to bring
about a settlement, equally honorable and just to both coun-
tries, of the various questions of which it had been their duty
to treat, and the British commissioners would always retain a
grateful recollection of the fair and friendly spirit which the
American commissioners had displayed.
<^Mr. Fish, in behalf of the American commissioners, said
that they were gratefully sensible of the friendly words ex-
pressed by Lord de Grey, and of the kind spirit which had
prompted them. From the date of the first conference the
American commissioners had been impressed by the earnest-
ness of desire manifested by the British commissioners to reach
a settlement worthy of the two powers who had committed to
this joint high commission the treatment of various questions
of peculiar interest, complexity, and delicacy. His coUeagues
and he could never cease to appreciate the generous spirit and
the open and friendly manner in which the British commis-
sioners had met and discussed the several questions that had
led to the conclusion of a treaty which it was hoped would
receive the approval of the i)eople of both countries, and would
prove the foundation of a cordial and friendly understanding
between them for all time to come.
^^Mr. Fish further said that he was sure that every member
of the joint high commission would desire to record his appre-
ciation of the ability, the zeal, and the unceasing labor which
the joint protocolists had exhibited in the discharge of their
arduous and responsible duties, and that he knew that he only
gave expression to the feelings of the commissioners in saying
that Lord Tenterden and Mr. Bancroft Davis were entitled to,
and were requested to accept, the thanks of the joint high com-
mission for their valuable services and the great assistance
5627 36
Digitized by LjOOQIC
546 INTERNATIONAL ARBITRATIONS.
which they had reiidered with aiivarying obligingness to the
commission.
<*Lord de Grey replied, on behalf of the British commission-
ers, that he and his colleagues most cordially concurred in the
proposal made by Mr. Fish that the thanks of the joint high
commission should be tendered to Mr. Bancroft Davis and Lord
Ten terden for their valuable services as joint protocolists. The
British commissioners were also fully as sensible as their Ameri-
can colleagues of the great advantage which the commission
had derived from the assistance which those gentlemen had
given them in the conduct of the important negotiations in
which they had been engaged.
"Monday, the 8th of May, was appointed for the signature
of the treaty."^
On that day the commissioners met, accord-
^^T^^tv * * ^"^ ^ appointment. " We had a bright, sunny
day," says Mr. Davis,* **for the signature of
the treaty. The room was decorated with flowers. All the
young men from the British commission were present, and
nearly or (juite all the clerks from the Department. McCarthy
put on tlie seals in wax, and then the signatures were affixed
at a little table in the corner of the big room.^ I tossed up
with Tenterden for the order of signing, and he won. The last
signature was affixed at twelve minutes past eleven. Senators
Morton, Hamlin, Patterson, and Frelinghuysen arrived while
we were signing."
» Protocol of May 6, 1871.
>MS. Journal.
-< In Sir Stalford Northcote's Life, Lettors, and Diaries (II. 17), it is stated
that the clerk who affixed the seals wiis "awkward and nervoos, and Ten-
terden did not help to put him at his ease by dropping quantities of bom-
ing sealing wax on his fingers. The poor man was so much excited that
he burst into tears at the conclusion of the afl'air/' His grief was, how-
ever, at least in a measure assuaged by the action of the commissioners in
making him a present of money for the purchase of a memento. McCarthy,
the person referred to, was still in the Department when I entered it, in
1885, and he remained there till his death, about 1892. He was an Irish-
man, small in stature, and deformed from an affection of the spine ; and he
wn8 somewhat fond of usquebaugh. But he was a faithful and valuable
clerk, and, among other services that he performed, he brought order out
of the chaos of ''pub. docs.'' which had through a long course of yean ac-
cumulated in the Department of State.
Digitized by LjOOQIC
THE GENEVA AEBITBATION. 547
The treaty thas concluded, after more than
^"^^°»» a!diM^" ^^^ mouths of formal negotiation, was com-
X)rehensive in its character. It consisted of a
preamble and forty -three articles. The preamble and the arti-
cles relating to the Alabama claims were as follows:
"The United States of America and Her Britannic Majesty,
being desirous to provide for an amicable settlement of all
causes of difference between the two countries, have for that
purpose appointed their respective Plenipotentiaries, that is to
say: The President of the United States, has appointed on the
part of the United States a^ Commissioners in a Joint High
Commission and Plenipotentiaries, Hamilton Fish, Secretary
of State; Robert CummingSchenck, Envoy Extraordinary and
Minister Plenipotentiary to Great Britain; Samuel Nelson, an
Associate Justice of the Supreme Court of the United States;
Ebenezer liockwood Hoar, of Massachusetts; and George
Henry Williams, of Oregon; and Her Britannic Majesty on
her part has appointed as her High Commissioners and Pleni-
potentiaries, the Right Honourable George Frederick Samuel,
Earl de Grey and Earl of Ripon, Viscount Goderich, Baron
Grantham, a Baronet, a Peer of the United Kingdom, Lord
President of Her Majesty's Most Honourable Privy Council,
Knight of the Most Noble Order of the Garter, etc, etc.; the
Right Honourable Sir Stafford Henry Northcote, Baronet, one
of Her Majesty's Most Honourable Privy Council, a Member
of Parliament, a Companion of tlie Most Honourable Order of
the Bath, etc., etc.; Sir Edward Thornton, Knight Commander
of the Most Honourable Order of the Bath, Her Majesty's
Envoy Extraordinary and Minister Plenipotentiary to the
United States of America; Sir John Alexander Macdonald,
Knight Commander of the Most Honourable Order of the
Bath, a Member of Her Majesty's Privy Council for Canada,
and Minister of Justice and Attorney General of Her Majesty's
Dominion of Canada; and Mountsigue Bernard, Esquire,
Chichele Professor of International Law in the University of
Oxford.
"And the said Plenipotentiaries, after having exchanged
their full powers, which were found to be in due and proper
form, have agreed to and concluded the following articles:
"Article I.
" Whereas differences have arisen between the Government
of the United States and the Government of Her Britannic
Majesty, and still exist, growing out of the acts committed by
the several vessels which have given rise to the claims generic-
ally known as the 'Alabama Claims:'
"And whereas Her Britannic Majesty has authorized Her
High Commissioners and Plenipotentiaries to express, in a
Digitized by LjOOQIC
548 nrrEBNATIONAL abbitrations.
friendly spirit, the regret felt by Her Majesty's Government
for the escape, under whatever circamstaiices, of the Alabama
and other vessels from British ports, and for the depredations
committed by those vessels:
<^ Kow, in order to remove and adjnst 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 ont of the acts
committed by the aforesaid vessels and generically known as
the ^Alabama Claims,' shall be referred to a Tribunal of Arbi-
tration 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 Con-
federation shall be requested to name one; and His Mi^esty
the Emperor of Brazil shall be requested 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
Mi\je8ty, 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 originaUy
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 inca-
pacitated, 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.
"Article II.
"The Arbitrators shall meet at Geneva, in Switzerland, at
the earliest convenient day after they shall have been named,
and shall proceed impartially and carefully to examine and
decide all questions that shall be laid before them on the part
of the Governments of the United States and Her Britannic
Majesty respectively. AUquestionsconsideredbytheTribunal,
including the final award, shall be decided by a majority of all
the Arbitrators.
"Each of the High Contracting Parties shall also name one
person to attend the Tribunal as its agent to represent it
generally in all matters connected with the arbitration.
Digitized by LjOOQIC
THE GENEVA ABBITRATION. 549
"Article III.
"The written or printed case of each of the two Parties,
accompanied by the documents, the official correspondence,
and other evidence on which each relies, shall be delivered in
duplicate to each of the Arbitrators and to the agent of the
other Party as soon as may be after the organization of the
Trrbnnal, but within a period not exceediug six months from
the date of the exchange of the ratifications of this Treaty.
"Article IV.
"Within four months after the delivery on both sides of the
written or printed case, either Party may, in like manner,
deliver in duplicate to each of the said Arbitrators, and to the
agent of the other Party, a counter case and additional docu-
ments, correspondence, and evidence, in reply to the case,
documents, correspondence, and evidence so presented by the
other Party.
"The Arbitrators may, however, extend the time for deliv-
ering such counter case, documents, correspondence, and evi-
dence, when, in their judgment, it becomes necessary, in conse-
quence of the distance of the place from which the evidence
to be presented is to be procured.
"If in the case submitted to the Arbitrators either Party
shall have specified or alluded to any report or document in
its own exclusive possession, without annexing a copy, such
Party shall be bound, if the other Party thinks proper to apply
for it, to furnish that Party with a copy thereof; and either
Party may call upon the other, through the Arbitrators, to
produce the originals or certified copies of any papers adduced
as evidence, giving in each instance such reasonable notice as
the Arbitrators may require.
"Article V.
" It shall be the duty of the Agent of each Party, within two
months after the expiration of the time limited for the delivery
of the counter case on both sides, to deliver in duplicate to
each of the said Arbitrators and to the agent of the other
Party a written or printed argument showing the points and
referring to the evidence upon which his Government relies;
and the Arbitrators may, if they desire fiirther elucidation
with regard to any point, require a written or printed state-
ment or argument, or oral argument by counsel ux)on it; but
in such case the other Party shall be entitled to reply either
orally or in writing as the case may be.
"Article VI.
" In deciding the matters submitted to the Arbitrators they
shall be governed by the following three rules, which are
agreed upon by the High Contracting Parties as rules to be
Digitized by LjOOQIC
550 INTERNATIOKAL ABBrTSATIOMS.
taken as applicable to the case, and by snch principles of
international law not inconsistent therewith as the Arbitrators
sliall determine to have been applicable to the case:
" Rules.
"A neatral Government is bound —
" First, to use due diligence to prevent the fitting out, aim-
ing, or equipping, within its jurisdiction, of any vessel which
it has reasonable ground to believe is intended to cruise or to
carry on war against a Power with which it is at peace; and
also to use like 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 juri^iction, to warlike use.
'' Secondly, not to permit or suffer either belligerent to make
use of its ports or waters as the b8se of naval operations agamst
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 jurisdiction, to prevent
any violation of the foregoing obligations and duties.
" Her Britannic Majesty has commanded her High Commis
sioners and Plenipotentiaries to declare that Her Majestys
Government cannot assent to the foregoing rules as a state
ment of the principles of International Law which were in force
at the time when the claims mentioned in Article I arose, but
that Her Majesty's Government, in order to evince its desire
of strengthening the friendly relations between the two ooau-
tries and of making satisfactory provision lor the future, agrees
that in deciding the questions between the two countries aris-
ing out of those claims, the Arbitrators should assume that
her Majesty's Government had undertaken to act upon the
principles set forth in these rules.
"And the High Contracting Parties agree to observe these
rules as between themselves in future, and to bring them to
the knowledge of other maritime Powers, and to invite them
to accede to them.
"Article YII.
"The decision of the Tribunal shall, if. possible, be made
within three months from the close of the argument on boilt
sides.
" It shall be made in writing and dat«d, and shall be signer!
by the Arbitrators who may assent to it.
*"The said Tribunal shall first determine as to each vessel
separately whether Great Britain has, by any act or omission,
failed to fulfil any of the duties set forth in the foregoing thiee
rules, or recognized by the principles of international law not
inconsistent with such rules, and shall certify such fact as to
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 551
each of the said vessels. In case the Tribanal find that Great
Britain has failed to fulfil any duty or duties as aforesaid, it
may, if it tbink proper, proceed to award a sum in gross to be
paid by Great Britain to the United States for all the claims
referred to it; and in such case the gross sum so awarded
shall be paid in coin by the Government of Great Britain to
the Government of the United States, at Washington, within
twelve months after the date of the award.
" The award shall be in duplicate, one copy whereof shall be
delivered to the agent of the United States for his Govern-
ment, and the other copy shall be delivered to the agent of
Great Britain for his Government.
"Article VIII.
" Each Government shall pay its own agent and provide for
the proper remuneration of the counsel employed by it and
of the Arbitrator appointed by it, and for the expense of pre-
paring and submitting its case to the Tribunal. All other
expenses connected with the arbitration shall be defrayed by
the two Governments in equal moieties.
"Article IX.
" The Arbitrators shall keep an accurate record of their pro-
ceedings, and may appoint and employ the necessary officers to
assist them.
"Article X.
" In case the Tribunal finds that Great Britain has failed to
fulfil any duty or duties as aforesaid, and does not award a sum
in gross, the High Contracting Parties agree that a Board of
Assessors shall be appointed to ascertain and determine what
claims are valid, and what amount or amounts shall be paid by
Great Britain to the United States on account of the Uabihty
arising from such failure, as to each vessel, according to the
extent of such liability as decided by the Arbitrators.
"The Board of Assessors shall be constituted as follows:
One member thereof shall be named by the President of the
United States, one member thereof shall be named by Her
Britannic Majesty; and one member thereof shall be named by
the Representative at Washington of His Majesty the King
of Italy; and in case of a vacancy happening from any cause
it shall be filled in the same manner in which the original
appointment was made.
"As soon as possible after such nominations the Board of
Assessors shall be organized in Washington, with power to
hold their sittings there, or in New York, or in Boston. The
members thereof shall severally subscribe a solemn declaration
that they will impartially and carefully examine and decide, to
the best of their judgment and according to justice and equity.
Digitized by LjOOQIC
552 INTERNATIONAL ARBITRATIONS.
all matters submitted to them, and shall forthwith proceed,
under such rules and regulations as they may prescribe, to
the investigation of the claims which shall be presented
to them by the Government of the United States, an<l shall
examine and decide upon them in such order and manner as
they may think i)roper, but upon such evidence or information
only as shall be furnished by or on behalf of the Govennnents
of the United States and of Great Britain respectively. Tliey
shall be bound to hear on each separate claim, If required, one
person on behalf of each Government, as counsel or agent. A
majority of the Assessors in each case shall be sufficient for a
decision.
*'The decision of the Assessors shall be given upon each
claim in writing, and shall be signed by them respectively and
dated.
"Every claim shall be presented to the Assessors within
six months from the day of their first meeting, but they may,
for good cause shown, extend the time for the presentation of
any claun to a further period not exceeding three months.
"The Assessors shall report to each Government at or before
the expiration of one year from the date of their first meeting
the amount of claims decided by them up to the date of such
report; if further claims then remain undecided, tliey shall
make a further report at or before the expiration of two years
from the date of such first meeting; and in case any claims
remain undetermined at that time, they shall make a final
report within a further period of six months.
"The report or reports shall be made in duplicate, and one
copy thereof shall be delivered to the Secretary of State of
the United States, and one copy thereof to the Representative
of Her Britannic Majesty at Washington.
"All sums of money which maybe awarded under this Article
shall be payable at Washington, in coin, within twelve months
after the delivery of each report.
"The Board of Assessors may employ such clerks as they
shall think necessary.
"The expenses of the Board of Assessors shall be borne
equally by the two Governments, and paid from time to time,
as may be found expedient, on the production of accounts cer-
tified by the Board. The remuneration of the Assessors shall
also be paid by the two Governments in equal moieties in a
similar manner.
"Article XI.
i'Tlie High Contracting Parties engage to consider the result
of the proceedings of the Tribunal of Arbitration, and of the
Board of Assessors, should such Board be appointed, as a full,
perfect, and final settlement of all the claims hereinbefore
referred to; and further engage that every such claim, whether
the same mayor may not have been presented to the notice of,
made, preferred, or laid before the Tribunal or Board, shall.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 653
from and after the couclusion of the proceedings of the Tribunal
or Board, be considered and treated as finally settled, barred,
and thenceforth inadmissible."
Besides the Alabama claims, the treaty set-
er ui^6c tlement included the claims of citizens of the
United States (other than the Alabama claims)
and of subjects of Great Britain growing out of the civil war
in the United States (Articles XII.-XV1I.); the North Atlan-
tic fisheries (Articles XVIII.-XXY., XXXII., XXXin.); the
navigation of certain rivers and canals and of Lake Michigan
(Articles XXVI.-XXVIIL); the system of bonded transit
(Articles XXIX., XXX., XXXIII.); certain features of the
coasting trade (Articles XXX., XXXIII.) ; the exemption from
duty of lumber cut on American territory watered by the St.
John and floated down that river to the United States (Article
XXXI.), and the San Juan boundary (Articles XXXIV-XLII).
The forty-third article related to the exchange of ratifications.
On the 10th of May the treaty was sent to
^^^ amato' ^* *^® Senate, and, together with the protocols
of the proceedings of the joint high commis-
sion, was referred to the Committee on Foreign Eelations.^
Of this committee Simon Cameron was now chairman, having
been substituted for Mr. Sumner in that position in the preced-
ing March. Mr. Sumner, however, cast his vote for the treaty.
Indeed, an examination of its provisions in relation to the
Alabama question will show that they substantially meet the
requirements of his speech on the Johnson-Clarendon conven-
tion. They contain an expression of regret "for the escape,
under whatever circumstances, of the Alabama and other
vessels from British ports, and for the depredations committed
by those vessels;" they embrace a definition of the rules of
maritime neutrality; and they secure, at least as they were
construed by the Government of the United States, an arbitral
adjustment of all claims, whether individual or national,
"growing out of acts committed by the aforesaid vessels, and
generically known as the Alabama claims." The British com-
missioners, though their government had ordered them to
leave Washington "as soon as possible after the treaty was
signed," deemed it prudent to await the discussions of the
^ The text of the treaty was surreptitiously published in the New York
Tribune on the morning of the 11th of May. (S. Rep. 2, 42 Cong., special
sess.)
Digitized by VjOOQ IC
564 nrrEBKATioNAL arbitrations.
Senate upon it.^ It was formally approved by that body on
the 24th of May.
The snccessfal conclusion of the negotiations
BoiMtuni of Seli«f: broaght a sensation of relief in England as well
as in the United States. Mr. Moran, the charge
d'affaires ad interim of the United States at London, wrote, on
the 25th of May, that there was the most widespread feeling in
regard to the treaty as a measure to close all sources of dispute
between the two countries. He said there would be ^'some
opposition to the convention on the part of Lord Russell," but
that it would be ^< rather personal than a matter of principle;^
and that nothing he could say would prevent the acceptance
of the treaty.*
But while Lord Bussell was more radical
-^^ than others in his hostility to the treaty, he
was not alone in England in his criticism of
it. It was suggested that the second of the three rules of
neutral duty which it prescribed, forbidding a neutral "to
permit or suffer either belligerent to make Uvse of its ports or
waters • • • for the purpose of the renewal or augmenta-
tion of military supplies or arms,'' would prevent the sale by a
neutral, or in a neutral country, of arms and other military
supplies in the ordinary course of commerce. The apprehen-
sions on thfs subject, which were shared by Sir Boundell
Palmer, were deemed so serious as to lead Earl de Grey to
bring the matter unofficially to the attention of General Schenck,
who had then assumed charge oi' the American legation in Lon-
don.' Mr. Fish, however, met the suggestion by declaring that
the President understood and insisted that the rule did not
prevent the open sale of arms or military supplies in the ordi-
nary course of commerce, as they were sold to the United States
in England during the civil war, or in the United States or in
England during the Franco-German war; ano ^p naid that the
United States, in bringing the rules to the knowledge of other
powers and asking their assent to them, as the contracting
parties had agreed to do, would insist that such was their
proper meaning.*
> Life, etc., of Sir Stafford Northcote, 16,23.
« MSS. Dept. of State.
'Telegram, General Schenck to Mr. Fish, June 9, 1871. The ministry
had received nr»tire that they would bo interrogated in Parliament on this
point.
* Telegram, Mr. Fish to General Schenck, June 10, 1871.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 555
But the principal ground of attack upon
^^^rSree BnT ^^ ^^^ treaty was the declaration it contained by
the British commissioners, that the rules of
neutrality which it set forth, not only for the regulation of the
future conduct of the contracting parties, but also for the
determination of Great . Britain's liability for the Alahama
claims, were not assented to by Her Majesty's Government as
a statement of principles of International law in force at the
time when the claims arose. On the 12th of June 1871 Earl
Eussell moved, in the House of Lords, that an address be
presented to Her Majesty praying that she would be pleased
" not to sanction or to ratify any convention for the settlement
of the Aldbama claims,'' by which Her Majesty would *' approve
of any conditions, terms, or rules by which the arbitrator or
abitrators" would "be bound, other than the law of nations
and the municipal law of the United Kingdom existing and in
force at the period of the late civil war in the United States
when the alleged depredations took place." He declared that
to pay compensation for acts which were not against the law
of nations at the time of their commission looked like " paying
a sort of tribute in order to buy peace." He also criticised the
provisions of the treaty relating to the i)sheries, as well as the
omission to provide for the adjustment of claims for the Fenian
outrages.
On the other hand. Earl Granville declared that the three
rules were completely covered by the then recent act amend-
ing the British neutrality laws. This act, he said, even went
further than the rules; nor was there any country in the world
that had a " greater interest" than Great Britain " in escaping
such depredations as were committed by the Alabama.^ Earl
Derby thought that the treaty was a poor one, but that it
should be accepted as an accomplished fact. Earl de Grey
considered that the government had " accomplished a signal
benefit in binding the American government by rules" which
were "just and reasonable in themselves, and from which, in
case of future wars, * * * no country on the face of the
earth" was "likely to derive so much benefit as England her-
self." After further debate the motion of Earl Eussell was
put, and was negatived without a division. The Times^ com-
menting on the debate, said that the conclusion which must
be come to, after this full discussion, was that " the solid ad-
vantages" to be derived from the treaty greatly overbalanced
its deficiencies.^
» June 13, 1871.
Digitized by LjOOQIC
556 INTERNATIONAL ARBITRATIONS.
On the 4th of August 1871 Sir C. Addersley moved in the
House of Commons for the production of copies of any instruc-
tions given by Her Majesty's ministers to the commissioners
at Washington during the negotiations. This motion was
withdrawn after a debate in which the treaty was defended
by Mr. Gladstone, Sir Stafford Northcote, and Sir Roundell
Palmer. In regard to the three rules, Sir Boundell said that
he did not think that they went beyond the liability imposed
on Great Britain by her own municipal lawJ
On the 11th of August Earl Granville an-
^*'^Wteati<r*^" J^<>oiic®<i that the preparation of the British
Case had been confided to the Lord Chancel-
lor, who would be assisted by Lord Tenterden and Professor
Bernard; that Sir Roundell Palmer had consented to act as
counsel, and that Sir Alexander Cockburn had consented to
act as British arbitrator.* While Sir Koundell Palmer ap-
peared alone as British counsel, Mr. Mountagne Bernard and
Mr. Cohen sat by his side at the counsels' table at Geneva,
and << the hand of the latter was apparent in the estimates and
exhibits presented to the tribunal to guide them in the deter-
mination of the damages awarded to the United States."^
Lord Tenterden was appointed as agent for Great Britain.*
The preparation of the American Case was intrusted to Mr.
J. C. Bancroft Davis, who was selected for the post of agent
of the United States. Mr. Charles Francis Adams was ap-
I)ointed American arbitrator.* Mr. William M. Evarts, Mr.
Caleb Gushing, and Mr. Morrison R. Waite, afterward Chief
* The Timetf August 5, 1871. Sir Roundell Palmer, whose opinion on the
subject derived a double weight from his great abilities and his connec-
tion with the British Government' during the civil war in the United
States, said that the ''substance of the obligation'' imposed by the three
rules, ''as distinct from its foundation and origin,'' did not materially
differ from that imposed by the municipal law ot £ngland as it was inter-
preted and nnderstood by the government, and as the government actually
and in good faith at the time undertook to execute it. (Hansard, CCVIII-
894.) In the course of his speech Sir Roundell Palmer made some criti-
cisms on the Johnson-Clarendon c«mvention, to which Mr. Johnson pub-
lished a reply. (A Reply to a Recent Speech of Sir Roundell Palmer on
the Washington Treaty and the Alabama Claims: Baltimore, 1871.)
>The Times, August 12, 1871; For. Rel. 1871, pp. 480, 484, 493, 494.
3 Cnshing's Treaty of Washington, 96.
'^Earl Granville to General Sohenck, November 16, 1871, MSS. Dept. of
State.
*For. Rel. 1871, p.494.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 557
Jastice of the United States, acted as American counselJ Mr.
B. K. Curtis was also invited to act as counsel for the United
States, but he was unable to accept.^ Counsel were instructed
to secure, if possible, the award of a sum in gross.
According to the treaty there were to be, in
irentnd ArUtratois. addition to the arbitrators of the United States
and Great Britain, three neutral arbitrators,
of whom the King of Italy, the President oi' the Swiss Confed-
eration, and the Emperor of Brazil were each to be requested
to name one.^ The King of Italy named Count Frederic Sclopis,
of Salerano, minister of state, '^a member of an eminent Pied-
montese family, a senator of Italy, a distinguished judge, a
learned lawyer, a man of letters, whose name and reputation
were European." Among his numerous writings on jurispru-
dence is the Storio della Legislazione Italiana^ a voluminous
work, in which the successive stages of the medieval and
modern legislation of the various States of Italy are exhibited.
In person Count Sclopis " was tall beyond the ordinary height,
noble, and commanding. In character he was iirm, independ-
ent, upright, truthful. In manners he was a model for all
gentlemen."*
The President of the Swiss Confederation named Mr. Jacques
Staempfli, a German Swiss of the canton of Berne, an advo-
cate, journalist, and statesman, a member of the council of
state, a representative of Berne in the Diet, and three times
President of the Swiss Confederation. ''His theory of execu-
tive action was characteristic of the man, namely, ^ When peril
is certain, it is better to advance to meet it rather than timidly
to await its approach.' In fine, preparation and decisio^i^^ were
"the distinctive traits of all the official acts of Mr. Staempfli."*
The Emperor of Brazil named Marcos Antonio d'Araujo,
Baron d'ltajub^, who was in early life a member of the faculty
of law of Olinda. Having been appointed consul-general of
Brazil in the Hanse Towns, he successively held the offices of
I For instructions to connsel, see Mr. Fish to Mr. Cashing, December 8,
1872, For. Rel. 1872, part 2, II. 414; instructions to agent, id. 414.
'Cushing's Treaty of Washington, 95.
^ For identic notes requesting the appointment of the neutral arbitrators,
see For. Rel. 1871, pp. 460-452.
■•Mr. Fish and the Alabama Claims, 84; Cushing's Treaty of Washing-
ton, 79; Larousse, xiv. 409.
'^Cushing's Treaty of Washington, 80-81.
Digitized by LjOOQIC
558 INTERNATIONAL ARBITRATIONS.
minister or envoy at Hauover, Copenhagen, and Berlin; and
at the time of his appointment as arbitrator he was envoy
extraordinary and minister plenipotentiary of Brazil at Paris.
Daring the progress of the arbitration he was invested by his
Emperor with the title of Viscount*
^< This account of the personnel of the arbitration would be
imperfect without the mention of the younger but estimable
persons who constituted the staff of the formal representatives
of the two governments, namely: on the x)art of the United
States Mr. C. G. Beaman, as solicitor, and Messrs. Brooks
Adams, John Davis, F. W. Hackett, W. F. Peddrick, and Ed-
ward T. Waite, as secretaries; and on the part of Great Brit-
ain, in the latter capacity or as translators, Messi^s. Sanderson,
Markheim, Villiers, Langley, and Hamilton."^ Mr. Beanian
assisted Mr. Davis by arranging, under the latter's general
direction, the evidence presented with the American case
respecting the national and individual claims.^
On the 2d of December 1871 Mr. Davis ar-
Ar^ig«meiit j»f the ^.j^^^ j^^ FsLiis, where he found Lord Tenterden.
ProluninaziM.
On the 4th each of them, in his capacity as
agent, addressed notes to the several arbitrators notifying
them of the wish of his government that the conferences might
begin on the 15th of December. On the 13th Mr. Davis and
Lord Tenterden set out from Paris for Geneva in company with
Mr. Adams and Sir Alexander Cock burn. On the way they
discussed the organization of the tribunal and arranged the
preliminaries.
1 Cashing's Treaty of Washington^ 85. ''He possessed/' said Mr. Cash-
ing, ''courteous and attractive manners, intelligence disciplined by ]ong
experience of men and affairs, instinctive appreciation of principles and
facts, and the ready expression of thouj>:ht in apt language, but without
the tendency to run into the path of debate or exposition which appeared
in the acts of some of his collagaes of the tribunal of arbitration.
"In comparing Mr. Staempfli, with his deep-brown complexion, hia
piercing dark eyes, his jet black hair, his quick but suppressed manner,
and the Viscount of Itajub^, with his fair complexion and his air of gen-
tleness and affability, one having no previous knowledge of their respec-
tive origins would certainly attribute that of the former to tropical an«I
passionate America, and that of the latter to temperate and calm-blooded
Europe.''
"Cushing's Treaty of Washington, 97.
'Report of Mr. Davis, September 21, 1872, For. Rel. 1872, part 2, IV. 2;
Mr. Davis to Mr. Fish, November 13, 1871, For. Rel. 1872, part 2, IV. 413.
Mr. Beaman published in March, 1871, a volume entitled " The National
and Private Alabama Claims and their Final and Amicable Settlement,''
in which he presented a basis of possible adjustment.
Digitized by VjOOQ IC
THE GENEVA ARBITRATION. 559
On the afternoon of the 15th of December
^Ai^l^^ the proceedings of the arbitration were begun
by the informal examination of the powers of
the arbitrators, which were found to be in due form. The
scene of the meeting was the Hotel de Ville, which the cantonal
government of Geneva had placed at the disposal of the
tribunal. In the hall of this building, known as the '< Salle
des Conferences,'^ the meetings of the arbitrators were held
and the great questions submitted to them decided.
After the examination of th.e arbitrators' full
^'^'"i*'^^^ ** powers, Mr. Adams said that as neither he nor
Sir Alexander Cockburn could preside, it had
been thought advisable to invite the gentleman next in rank,
in the order named in the treaty, to preside over the meetings
of the tribunal. Sir Alexander Cockburn seconded the pro-
posal, not only, as he said, for the reason given by Mr. Adams,
but also because Count Sclopis was one of the most illustrious
jurists of Europe. Count Sclopis then took the chair, and in
returning his thanks he expressed the belief that ^'the meet-
ing of the tribunal indicated of itself the impression of new
direction on the public policy of nations the most advanced in
civilization, and the commencement of an epoch in which the
spirit of moderation and the sentiment of equity were beginning
to prevail over the tendency of old routines of arbitrary vio-
lence or culpable indifference. He signified regret that the
pacific object of the congress of Paris had not been seconded by
events in Europe. He congratulated the world that the states-
men who directed the destinies of Great Britain and the United
States, with rare firmness of conviction and devotion to the
interests of humanity, resisting all temptations of vulgar
ambition, had magnanimously and courageously traversed in
peace the difficulties which had divided them both before and
since the conclusion of the treaty. He quoted approvingly
the opinion expressed by Mr. Gladstone, on the one hand, and
by President Washington, on the other, in commendation of
the policy of peace, of justice, and of honor in the conduct
of nations. And he proclaimed in behalf of his colleagues, as
well as of himself, the purpose of the tribunal, acting some-
times with the large perception of statesmen, sometimes with
the scrutinizing eye of judges, and always with a profound
sentiment of equity and with absolute Impartiality, thus to
discharge its high duty of pacification as well as of justice
to the two governments."^
1 Coshiiig's Treaty of Washington, 77.
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560 INTERNATIONAL ARBITRATIONS.
After the discourse of Count Sclopis, Mr.
^^'*"^*"^^*' ^*^ Alexander Favrot, of Berne, was named by
Mr. Staempili, on the request of the arbitra-
tors, as secretary to the tribunal.
Mr. Davis and Lord Tenterden then, with
entationo j^j^ntic notes, presented the cases of their
respective governments, and the tribunal
'^directed that the respective counter cases, additional docu-
ments, correspondence, and evidence called for or permitted
by the fourth article of the treaty should be delivered to the
secretary of the tribunal at the hall of the conference in
the Hotel de Ville at Geneva, for the arbitrators and for the
respective agents, on or before the 15th day of April next."*
On the 16th of December the tribunal met again, and adjourned
till the 15th of the following June, unless sooner convened by
the secretary .2 Writing confidentially to Mr. Fish after this
adjournment, Mr. Davis said: "Thus far everything looks
well. The arbitrators are evidently impressed with the gravity
of the questions submitted to them, and approach the work
with a desire and ])urpose of dealing justly with both parties.
We can wish for nothing better than this.''*^
The Case of the United States opened with
"* "statL ^ ^^ introductory chapter, in which the provi-
sions of the treaty relating to the Alalmma
claims were set forth, together with the statements in the pro-
tocols of the joint high commission in regard to the negotiations.
The second chapter was entitled, '*The un-
^afirion^esT^ friendly course pursued by Great Britain
toward the United States from the outbreak
to the close of the insurrection.'' On the 6th of November
1860 Abraham Lincoln was, said the Case of the United States,
elected President of the United States in strict conformity
with the provisions of the Constitution and laws of the
country, on a platform which declared "that the normal condi-
tion of all the territory of the United States" was "that of
freedom," and which denied "the authority of Congress, of a
Territorial legislature, or of any individuals, to give legal exist-
ence to slavery in any Territory of the United States," the
word "Territory" being here used in the sense of an incipient
1 Protocol, For. Rol. 1872, part 2, IV. 16.
2 Id. 17.
3 December 16, 1871, MSS. DeT>t. of State.
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THE GENEVA ARBITRATION. 661
political organization which might at some future time become
a State. Soon afterward the people of South Carolina, through
a State convention, declared their purpose to secede from the
Union on the ground that the party about to come into power
had announced that the South should be "excluded from the
common territory." The State of Alabama, on the 11th of Jan-
uary 1861, through a convention in which the vot« stood 61
yeas to 39 nays, followed the example of South Carolina, giving
as the reason that the election of Tresident Lincoln *'by a
sectional party, avowedly hostile to the domestic institutions
(i. e., slavery) of Alabama," was " a political wrong of an insult-
ing and menacing character." The State of Georgia, after a
much greater struggle, took the same course, the final vote
being 208 yeas to 89 nays. Florida, Mississippi, Louisiana,
and Texas each framed an ordinance of secession from the Union
before the 4th of February, in each case with more or less
unanimity. On that day representatives from some of the
States which had attempted to go through the form of seces-
sion, and representatives from the State of North Carolina,
which had not at that time attempted it, met at Montgomery,
in the State of Alabama, for the purpose of organizing a pro-
visional government, and elected Jeft'erson Davis as the pro-
visional president and Alexander H. Stephens as provisional
vice-president of the proposed confederation. Jeft'erson Davis,
in accepting this office, on the 18th of February made a speech
in which the perpetuation of slavery was virtually admitted to
be the cause of the secession movement; and Mr. Stephens
explicitly declared that the "corner stone" of the new govern-
ment rested upon "the great truth" that the negro was "not
equal to the white man," and that slavery was "his natural
and moral condition." No other State passed ordinances of
secession till after the fall of Fort Sumter. Before that time
the people of Tennessee and Missouri voted by large major-
ities against secession; and in the States of North Carolina
and Virginia conventions were called which were known to be
opposed to the movement in South Carolina and the six States
bordering on the Gulf of Mexico, and which were still in ses-
sion when some of the events subsequently referred to took
place. A large minority, if not a majority, of the people of
the slave States known as Border States and of the mountain-
ous parts of the six States known as the Gulf States did not
desire separation. Their feelings were expressed in a speech
5627 36
Digitized by LjOOQIC
562 INTERNATIONAL ARBITRATIONS.
made by Mr. Stephens in the Georgia convention, before that
State passed the ordinance of secession and two months before
he accepted office at Montgomery, in which he declared that
the secession movement was without a "plea of justification,"
and challenged anyone to name "one governmental act of
wrong, deliberately and purposely done by the government of
Washington," of which the South had "a right to comi^lain.''
On tlie 9th of March, after the inauguration of President Lin-
coln, Mr. Dallas, then minister of the United States at LondoD,
was instructed to communicate to Lord Russell, Her Majesty^s
principal secretary of state for foreign affairs, the inaugural
address of the President, and assure him that the President
entertained full confidence in the speedy restoration of the
harmony and unity of the government. On the 9th of April
Mr. Dallas, complying with these instructions, pressed upon
Lord Eussell tlie importance of England and France abstain-
ing, "at least for a considerable time, from doing what, by
encouraging groundless hopes, would widen a breach still
thought capable of being closed." Lord Russell replied that the
coming of Mr. Adams, Mr. Dallas's successor, "would doubt-
less be regarded as the appropriate and natural occasion for
finally discussing and determining the question." The attack
on Fort Sumter, made by order of the government at Mont-
gomery, ended in the surrender of the garrison on the 13th of
April. On the l.lth the President issued a proclamation, call-
ing out the militia and convening an extra session of Congress
on the 4th of the approaching July. On the 17th of*April Mr.
Jefferson Davis gave notice that letters of marque would be
granted by tlic government at Montgomery. On the 19th Presi-
dent Lincoln issued a proclamation declaring that a blockade
of the ports within tlie States of South Carolina, Georgia,
Alabama, Florida, Mississippi, Louisiana, and Texas would
be established for the purpose of collecting the revenue in
the disturbed part of the country, and for the protection
of the public peace, and of the lives and properties of quiet and
orderly citizens, until Congress should assemble.
As the issuance of President Lincoln's proc-
Beoognition of Bel- i^mation of blockade on the 19th of April had
repeatedly been asserted as the reason why
Her Majesty's government was induced to confer upon the
insurgents in the South the status of belligerents, the Case
of the United States proceeded to argue that this assertion
was erroneous. Before any armed collision had taken place
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THE GENEVA ARBITRATION. 563
there existed, said the Case, an understanding between the
British and French governments, with a view to secure a simul-
taneous and identical course of action on American questions.
When the news of the bloodless attack upon Fort Sumter
became known in Europe, Her Majesty's government appa-
rently assumed that the time had come for the joint action
which had previously been agreed upon ; and without waiting
to learn the purposes of the United States, it announced its
intention to take the first step by recognizing the Insurgents
as belligerents. Ko complete official copy, declared the Ameri-
can Case, of the President's proclamation of blockade was
received by the British Government before the afternoon of the
11th of May 1861, ten days after Lord Russell had decided to
award the rights of belligerency on the ocean to the insur-
gents, eight days after the subject had been referred to the
law officers of the Crown for their opiuiou, and five days after
the decision of Her Majesty's government upon that opinion
had been announced in the House of Commons. Mr. Adams
arrived in London on the evening of the 13th of May, and in
spite of Lord Russell's voluntary promise to Mr. Dallas, the
Queen's proclamation of neutrality was issued on the morning
of that day. It was, said the Case of the United States, a
measure taken at a time when Her Majesty's government was
by no means certain, as was shown by speeches in Parliament
and diplomatic correspondence, that there was a war in the
United States; and it was taken in full view, as shown by offi-
cial documents, of the effect that it would have in promoting
the secessionist movement. The Ignited States, said the Case,
had made this review with no purpose of questioning the sov-
ereign right of Great Britain to determine for herself whether
the facts at that time justified the recognition of the insurgents
as belligerents, but because they had been forced to conclude,
from all the circumstances, that Her Majesty's government, in
acting upon such imperfect information as it possessed, and
in counseling France to take the same course, " was actuated at
that time by a conscious unfriendly purpose toward the United
States."
Nor did this precipitate and unfriendly act,
The Deelaration of ^^^^ ^i^^ Case of the United States, go forth
alone. On the 6th of May 1861, five days be-
fore the receipt of the authentic copy of the President's proc-
lamation, Lord John Russell instructed Lord Cowley, the
British ambassador at Paris, to ascertain whether the imperial
Digitized by V^OOQ IC
564 INTERNATIONAL ARBITRATIONS.
government was disposed to make a joint endeavor with Her
Majesty's government to obtain from each of the <^ belliger-
ents" a formal recognition of the second and third articles of
the Declaration of Paris.^ This proposition, which was concur-
red in by tbe imperial government, to open direct negotiations
with the insurgents, was the second step in the joint action
which had been agreed upon. Care was taken to prevent the
knowledge of it from reaching the Government of the United
States. On the 18th of May Lord Lyons, the British minister
at Washington, was instructed to encourage the Oovemment
of the United States in any disposition which it might evince to
recognize the Declaration of Paris in regard to privateering;
but he was told that Her Majesty's government could not accept
the renunciation of privateering on the part of the Government
of tbe United States if it was coupled with the condition that
Her Majesty's government should enforce its renunciation on
the Confederate States, either by denying their right to issue
letters of marque, or by interfering with the belligerent opera-
tions of vessels holding from them such letters of marque; and
the instructions closed by directing Lord Lyons to take such
means as he might judge most expedient to transmit to the
British consul at Charleston or Kew Orleans a copy of a pre-
vious dispatch' of the same day, in order that it might be com-
municated to Mr. Jefferson Davis at Montgomery. These
instructions were not to be shown to Mr. Seward, but a copy
was to be shown to Mr. Jefferson Davis. Such a use of the
British legation at Washington for such a puri)ose was, said
the Case, perhaps an act which the United States would have
been justified in regarding as a cause of war. It was, to say
the least, an abuse of diplomatic duties and a violation of the
duties of a neutral.
On the 5th of July Lord Lyons sent a copy of his instmc-
tions to Mr. Bunch, the British consul at Charleston, and ad-
vised him not to go to Kichmond, but to communicate through
» The four rules of the Declaration of Paris, of 1856, or© as follows :
*' 1. Privateering is, and remains abolished.
** 2. The neutral flag covers enemy's goods, with the exception of con-
traband of war.
'* 3. Nentral goods, with the exception of contraband of war, are not
liable to capture under the f>nemy's flag.
*' 4. Blockades, in order to bo binding, must be effective; that is to say,
maintained by a force sufficient really to prevent access to the coast of the
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 565
the goverDor of the State of South Carolina. Mr. Buuch at
once put himself and his French colleague in communication
with a gentleman who was well qualified to serve that pur-
pose, but who was not the governor of South Carolina. This
gentleman proceeded to Richmond, with Lord Lyons's letters
and Lord Russell's dispatch, and while there secured the pas-
sage in the insurgent congress of resolutions, partly drafted
by Mr. Jefferson Davis, which declared a purpose to observe
the second and third rules of the Declaration of Paris, but to
maintain the right of privateering, which had been abolished
by the first rule. In communicating this result to Lord Lyons
Mr. Bunch said that the wishes of Her Majesty's government
'^ would seem to have been fully met,'^ as no proposal was made
that the Confederate government should abolish privateering.
It could not fail to be observed, said the Case of the United
States, that the practical effect of this diplomatic effort to
secure the assent of the United States to all the rules of the
Declaration of Paris, which the parties to that declaration
had agreed to maintain as a whole and indivisible, while the
insurgent privateers were to be protected and their devasta-
tion legalized would, if it had been successful, have been the
destruction of the commerce of the United States or its trans-
fer to the British flag, and the disarming of a principal weapon
of the L^nited States on the o(;ean, should a continuation of
this course unhappily force the United States into a war with
(rreat Britain.
The partial purpose disclosed in the first
Trent Case. official act of the British Government after
the issuance of the proclamation of neutrality
was, continued the Case of the United States, also shown in
the conduct of that government a few months later in its per-
emptory demands and its ostentatious warlike preparations
in the case of Mason and Slidell, even after Her Majesty's gov-
ernment had received the assurance, promptly given by the
United States, that the act of its naval officer was unauthorized.
Such conduct formed a signal contrast with the course of Earl
Eussell in respect to Confederate cruisers, contracted for and
fitted out in British ports, even after overwhelming proof of
their complicity was laid before him.
. The feeling ofpersonal unfriendliness toward
'^en.^ ^ ^ *^® United States in the leading members of
the British Government was shown, said the
American Case, by their public utterances during a large part,
Digitized by V^OOQ IC
566 INTERNATIONAL ARBITRATIONS.
or the whole, of the period covered by the coinmissiou or omis-
sion of the acts complained of. Thns, in a public speech made
at Newcastle on October 14, 1861, and printed in the London
Times of October 16, Earl Russell declared that the contest in
the United btates was not ui>on the question of slavery, but
between parties who were contending, the one for empire and
the other for independence. As late as February 5, 1863, he
declared, in the House of Lords, that there would be one end
of the war that would prove a calamity to the United States
and to the world, and especially to the negro race, and ^Hhat
would be the subjugation of the South by the North." Mr.
Gladstone, then chancellor of the exchequer, in a speech at
Newcastle on the 7th of October 18G2, declared that the suc-
cess of the Southern States, so far as regarded their separa-
tion from the North, might be anticipated with certainty. In
a debate in the House of Commons on the 27th of March 1863,
Mr. Laird, the builder of the Alabama^ declared, amid pro-
longed cheering by a large portion of the House, that he would
rather be handed down to posterity as the builder of a dozen
Alabamas than as a man who (referring to Mr. Bright) applied
himself to ^'cry up the institutions of another country" (mean-
ing the United States), which, when they came to be tested,
were "of no value whatever, and which reduced liberty to an
utter absurdity." Various other ex[)ressions, some of Lord
Palmerston and of other members of Her Majesty's government,
were cited as showing feelings which could not but have influ-
enced the course of that government, and induced it to look
with disfavor upon efforts to repress the attempts of British sub-
jects and other persons to violate the neutrality of British soil
and waters in favor of the Confederates. Lord Westbury,
who was appointed Lord High Chancellor on the death of Lord
Campbell in June 1861, declared in the House of Lords in
1868, in regard to the claims of the United States, that " the
animus tciih which the neutral powers acted wa^ the only true
criterion.^'* " Such is the use," said the American Case, " which
the United States ask this tribunal to make of the foregoing
evidence of the unfriendliness and insincere neutrality of the
British cabinet of that day. When the leading members of
that cabinet are thus found counseling in advance with France
to secure a joint action of the two governments, and assenting
to the declaration of a state of war between the United States
and the insurgents before they could possibly have received
Digitized by LjOOQIC
THE GENEVA AHBITRATION. 567
intelligence of the purposes of the government of the United
States; when it is seen that the British secretary of state for
foreign affairs advises the representatives of the insurgents as
to the course to be pursued to obtain the recognition of their
independence, and at the same time refuses to await the arrival
of the trusted representative of the United States before decid-
ing to recognize them as belligerents; when he is found opening
negotiations through Her Majesty's diplomatic representative
at Washington with persons in rebellion against tlie United
States; when various members of the British cabinet are seen
to comment upon the efforts of the Government of the United
States to suppress the rebellion in terms that indicate a strong
desire that those efforts should not succeed, it is not unreason-
able to suppose that, when called upon to do acts which might
bring about results in conflict with their wishes and convic-
tions, they would hesitate, discuss, delay, and refrain — in fact,
that they would do exactly what in the subsequent pages of
this paper it will appear that they did do."
In the third chapter the Case of the United
Hentral DntiM. States discussed 'Hhe duties whicli Great
Britain, as a neutral, should have observed
toward the United States." Great Britain had herself acknowl-
edged, by her foreign-enlistment act of 1819, as well as by other
governmental acts, her obligation to discharge the duties of
neutrality. The acts which, if committed within the territory
of a neutral, were to be regarded as violations of its interna-
tional duties were enumerated in sections 2, 6, 6, 7, and 8 of
that statute, which, said the Case, recognized the following as
acts that ought to be prevented in neutral territory in time
of wai*:
" 1. The recruitment of subjects or citzens of the neutral, to be
employed in the military or naval service of a foreign govern-
ment or of persons assuming to exercise the i)owers of gov-
ernment over any part of foreign territory; or the acceptance
of a commission, warrant, or appointment for such service by
such persons; or the enlisting or agreeing to enlist in such
service; the act in each case being done without the leave or
license of the sovereign.
"2. The receiving on board a vessel, for the purpose of trans-
I)orting from a neutral port, persons who may have been so
recruited or commissioned; or the transporting such persons
from a neutral port. Authority is given to seize the vessels
violating these provisions.
<<3. The equipping, furnishing, fitting out, or arming a vessel,
Digitized by LjOOQIC
568 INTERNATIONAL ARBITRATIONS.
with intent or in order that it may be employed in the service
of such foreign government, or of persons assuming to exercise
the powers of government over any ])art of a foreign country,
as a transport or storeship, or to cruise or carry on war against
a power with which che neutral is sit peace; or the delivering a
commission for such vessel, the act in each case being done
without the leave or license of the sovereign.
"4, The augmenting the warlike force of such a vessel of war
by adding to the number of guns, by changing those on board
for other guns, or by the addition of any eijuipment of war, if
such vessel at the time of its arrival in the dominions of the
neutral was a vessel of war in the service of such foreign gov-
ernment, or of such ])ersons, the act being done without the
leave or license of the sovereign." ^
This statute was, said the Case of theUnited
^^■^^^^^^■^*'''°' States, by the construction of the English
courts stripi)ed of its eflfective power during
the insurrection. The United States repeatedly, but in vain,
invited Her Majesty's government to amend it. After the war,
however, the appalling magnitude of the injury inflicted by
> For purposes of comparison, the Case of the United States at this point
reproduced in a footnote the enumeration mado in President Grant's neu-
trality proclamation of October 8, 1870, in the Franro-CM-nnan war, of the
acta forbidden by the Jieutrality laws of the United States. This enumer-
ation was as follows:
" 1. Accepting and exercising a commission to serve either of the said
belligerents by land or by sea against the other belligen'nt.
'*2. Enlisting or entering into the service of either of the said belligerents
as a soldier, or as a marine or seaman on board of any vessel of war, letter
of marque, or privateer.
"3. Hiring or retaining another person to enlist or enter himself in the
service of either of the said belligerents as a soldier, or as a marine or sea-
man on board of any vessel of war, letter of marque, (»r privateer.
*U. Hiring another person to go beyond the limits or jurisdiction of the
United States with intent to bo enlisted as aforesaid.
'*5. Hiring another person to go beyond the limits of the United States
with the intent to be entered into service as aforesaid.
'^6. Retaining another person to go beyond the limits of the United
States with intent to be enlisted as aforesaid.
** 7. Retaining another person to go beyond the limits of the United States
with intent to be entered into service as aforesaid. (Hut the said act is
not to be construed to extend to a citizen or subject of either belligerent
who, being transiently within the United States, shall, on board of any
vessel of war, which, at the time of its arrival within the United States,
was fitted and equipped as such vessel of war, enlist, or enter himself, or
hire, or retain another subject or eiti/en of the same belligerent, who is
transiently within the United States, to enlist, or enter himself to serve
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 569
B.^'tisli- built aud BritislimaiiLed cruisers on the commerce of
the Tuited States seemed to have led the government to change
its course; and in January 1867 a royal commission of British
judges and lawyers was appointed which, after twenty-four
sittings, reported that the act might be improved by the enact-
ment of several provisions set forth in the report. Among
these, the commission recommended that it be made a statu-
tory ofiense to ''fit out, arm, dispatch, or cattse to he dispatched,
any ship, with intent or knowledge that the same shall or will be
employed in the military or naval service of any foreign power
in any war then being waged by such power against the sub-
jects or property of any foreign belligerent power with whom
Her Majesty shall not then be at war." It was also proposed
to make it a statutory offense to ^^ build or equip any ship with
the intent that the same shall, after being fitted out and armed,
either within or beyond Her Majesty^s dominions, be employed as
aforesaid; " and it was proposed tliat the executive should be
armed with summary powers similar to those conferred upon
Riich beUigerent on board Hocb vessel of war, if the United States shall
tbeu be at peace with snch belligerent.)
'^8. Fitting out and arming, or attempting to fit out and arm, or procur-
ing to be fitted oat aud armed, or knowingly being concerned in the furnish-
ing, fitting out, or arming of any ship or vessel, with intent that such ship
or vessel sball be employed in the service of either of the said belligerents.
**9. Issuing or delivering a commission within the territory or jurisdic-
tion of the United States for any ship or vessel to the intent tbat she may
be employed as aforesaid.
''10. Increasing or augmenting, or procuring to be increased or aug-
mented, or knowingly being concerned in increasing or augmenting the
force of any ship of war, cruiser, or other armed vessel, whicb at the time
of her arrival witbin the United States was a ship of war, cruiser, or armed
vesHel in the service of either of the said belligerents, or belonging to the
subjects or citizens of either, by adding to the number of guns of such
vessels, or by changing those on board of her for guns of a larger caliber^
or by the addition thereto of any equipment solely applicable to war.
" 11. Beginning or setting on foot or providing or preparing the means
for any military expedition or enterprise to be carried on from the territory
or jurisdiction of the United States against the territories or dominions of
either of the said belligerents."
After reproducing this enumeration the Case of the United States said:
" The Tribunal of Arbitration will also observe that the most important
part of the American net is omitted in the British art, namely, the power
conferred hy the eighth section on the Executive to take possession of and detain
a ship without judicial process, and to use the military and naval forces of the
Government for that purpose, if necessary."
Digitized by LjOOQIC
570 INTERNATIONAL ARBITRATIONS.
the President of the United States by the eighth section of the
neutrality act of 1818.^ These recommendations were, said the
Case of the United States, made with a view to give the laws
of the kingdom increased efficiency, and, in the language of
the commission, to bring them into full conformity with the
international obligations of England. The report of the com-
missioners was made in 1868. On the 9th of August 1870
Parliament passed an act to give it effect Soon afterwards a
vessel called the International was proceeded against for an
alleged violation of its provisions, before Sir Eobert Philli-
more, one of the commissioners who signed the report in 1868,
who declared that the statute was passed for the purpose of
enabling the government *'to fulfill more easily than hereto-
fore that i)articular class of obligations" arising out of a state
of neutrality.
The Case of the United States also referred
^^•~^^^' ''•''■ to the proclamation of neutrality of May 13,
1861, as also showing to some extent the Brit-
ish Government's sense of its duties toward the United States.
The proclamation appeared to concede that it was the duty of
^ Section 8 of the act of 1818 (3 Stata. at L. 449), now incorporated in the
Revised Statutes of the United States, reads as follows: "That in every
case in which a vessel shall be fitted out and armed, or attempted to be
fitted out and armed, or in which the force of any vessel of war, cruiser, or
other armed vessel, shall be increased or augmented, or in which any mili-
tary exx>edition or enterprise shall be begun or set on foot, contrary to the
provisions and prohibitions of this act ; and in every case of the capture of
a ship or vessel within the jurisdiction or protection of the United States
as before defined, and in every case in which any process issuing out of
any court of the United States shall be disobeyed or resisted by any per-
son or persons having the custody of any vessel of warj cruiser, or other
armed vessel of any foreign prince or state, or of any colony, district, or
people, or of any subjects or citizens of any foreign prince or state, or of
any colony, district, or people, in every such case it shall be lawful for
the President of the United States, or such other person as he shall have
empowered for that ])urpose, to employ such part of the land or naval
forces of the United States, or of the militia tLereof, for the purpose of
taking possession of and detaining any such ship or vessel, with her prize
or prizes, if auy, in order to the execution of the prohibitions and penalties
of this act, and to the restoring of the prize or prizes in the cases in which
restoration shall have been adjudged, and also for the purpose of prevent-
iug the carrying on of any such expedition or enterprise from the terri-
tories or jurisdiction of the United States against the territories or
dominions of any foreign prince or state, or of any colony, district, or
people, with whom the United States are at peace/'
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 671
a neutral to observe a strict neutrality as to both belligerents
during hostilities. It also recognized the principle that the
duties of a neutral in time of war do not grow out of and are
not dependent upon municipal laws. Other acts of the British
Government, indicating its sense of its duties as a neutral
toward the United States, were the several instructions issued
during the contest for the regulation of the of&cial conduct of
British naval officers and colonial authorities toward the bel-
ligerents. These various instructions recognized, said the
American Case, the following principles and rules:
" 1. A belligerent may not use the harbors, ports, coasts, and
waters of a neutral in aid of its warlike purposes, or as a sta-
tion or place of resort for any warlike purpose, or for the
purpose of obtaining any facilities of warlike equipment.
"2. Vessels of war of the belligerents maybe required to
depart from a neutral port within twenty-four ikours after
entrance, except in case of stress of weather, or requiring pro-
visions or things for the crew, or repairs; in which case they
should go to sea as soon as possible after the expiration of the
twenty -four hours.
"3. The furnishing of supplies to a belligerent vessel of war
in a neutral port may be prohibited, except such as may be
necessary for the subsistence of a crew, and for their immediate
use.
"4. A belligerent steam vessel of war ought not to receive in
a neutral port more coal than is necessary to take it to the
nearest port of its own country, or to some nearer destination,
and should not receive two supplies of coal from ports of the
same neutral within less than three months of each other."
The Case of the United States also referred to the course of
the British Government in 1793, in calling upon the United
States to perform their duties as a neutral during the war be-
tween England and France, and to the instructions which were
given by the United States on that occasion, and the President's
proclamation of neutrality then issued. The United States not
only recognized the obligations of a neutral, bul ultimately
made compensation for the violation of those obligations.
This occurred before the United States had any statute on the
subject, and when the general rules of international law
afforded the only definition of its duties. In 1794, however,
the Congress of the United States, on the application of Great
Britain, enacted a statute to prohibit unneutral acts under
heavy penalties. In 1818 a comprehensive act was passed, at
the request of the Portuguese Government. In 1838, on the
Digitized by LjOOQIC
572 INTERNATIONAL ARBITRATIONS.
occasion of tbe rebellion which broke oat in Canada in the
preceding year, Congress passed another act on tbe suggestion
of Great Britain. During the Crimean war the United States
effectively discharged their neutral obligations. In these
precedents the United States and Great Britain appeared, said
the Case of the United States, to have assumed the following
principles:
" 1. That the belligerent may call upon the neutral to enforce
its municipal proclamations as well as its municipal laws.
"2. That it is the duty of the neutral, when the fact of the
intended violation of its sovereignty is disclosed, either through
the agency of the representative of the belligerent or through
the vigilance of the neutral, to use all the means in its power
to prevent the violation.
"3. That when there is a failure to use all the means in the
I)Ower of a neutral to prevent a breach of the neutrality of its
soil or waters, there is an obligation on the part of the neutral
to make compensation for the injury resulting therefrom."
The latest official act of Her Majesty's gov-
The Three Eulet. ernment indicating the views of Great Britain
as to the duties of a neutral in time of war
was, said the Case of the United States, to be found in the
three rules contained in Article VI. of the treaty of Washing-
ton. It was true that the British negotiators had thought it
essential to insert a declaration on the part of their govern-
ment that they could not consent to these rules as a statement
of principles of international law which were in force at the time
when the claims under discussion arose. But the United States
were of opinion, not only that these rules were then in force,
but that there were also other rules of international law then
in force, not inconsistent with them, defining with still greater
strictness the duties of a neutral in time of war.
The rules of the treaty, said the Case of the
"Due nuigenoe." United States, imposed upon neutrals the obli-
gation to use due diligence to prevent certain
acts. These words were not regarded by the United States as
changing in any respect the obligations imposed by inter-
national law. "The United States," said the Case,^ "under-
stand that the diligence which is called for by the rules of the
treaty of Washington is a dtte diligence — that is, a diligence pro-
portioned to the magnitude of the subject and to the dignity
1 Citing VinniuB, Comment. a<l Inst. lib. 3, tit. 15; Ayliffe, Pandects, B. 2,
tit. 13, pp. 108-110; Wood's Institutes, 106; Hallifax's Civil Law, 78;
etc. etc.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 573
and s^fengwi of the power wliicli is to exercise it; a diligence
which shall, by the use of active vigilance, and of all the other
means in the jiower of the neutral, through all stages of the
transaction, prevent its soil from being violated; a diligence
that shall in like manner deter designing men from committing
acts of war upon the soil of the neutral against its will, and
thus possibly dragging it into a war which it would avoid; a
diligence which prompts the neutral to the most energetic meas-
ures to discover any purpose of doing the acts forbidden by
its good faith as a neutral, and imposes upon it the obligation,
when it receives the knowledge of an intention to commit such
acts, to use all the means in its power to prevent it. ^o dili-
gence short of this would be 'due;' that is, commensurate with
the emergency or with the magnitude of the results of negligence.
Understanding the words in this sense, the United States
finds them identical with the measure of duty which Great
Britain had previously admitted."
Under the first clause of the first rule, the
The First Buie. Case of the United States maintained that the
fitting out, or arming, or equipi)ing, each con-
stituted in itself a complete offense, while under the second
clause it was made the duty of the neutral " to prevent the
departure from its jurisdiction of any vessel intended to cruise
or carry on war • • # ^ such vessel having been specially
adapted^ in whole or in part, within such jurisdiction, to warlike
use.^ The reason for this second clause, the language of which
was much broader than that of the first clause, might, said the
American Case, probably be found in the desire of the negoti-
ators to avoid differences of interpretation in relation to the
words " fitting out" «ind '* equipping." In the United States
it was held that the construction of a vessel in neutral tei-ri-
tory in time of war which there was reasonable ground to be-
lieve might be used to carry on war against a power with
which the neutral was at peace was an act which ought to be
prevented, and that the constructing or building such a ves-
sel was included in the offense of fitting it out. In the case of
the Alexandra, however, in 1863, the British tribunals held
that proof of the construction of a vessel for hostile use against
the United States did not establish such an equipping, or
fitting out, or famishing as would bring the vessel within the
act of 1819. The tribunal of arbitration might therefore, said
the Case of the United States, infer that the framers of the
Digitized by LjOOQIC
574 INTERNATIONAL ARBITRATIONS.
treaty intended to make it clear that it was <^ the duty of the
neutral to prevent the departure from its ports of any vessel
that had been specially adapted for the hostile use of a bel-
ligerent, tohether that adaptation began when the keel icas laid to
a vessel intended for such hostile use^ or whether it was made in
later stooges of construction^ or in fitting out^ or in furnishing^
or in equipping^ or in arming^ or in any other way.'" And the
duty to detain and prevent the departure of such a vessel was
violated as often as she was permitted to enter and depart
unmolested from one of the neutral's ports.
As to the second rule, the Case of the United
ThA Seoond Bnie. States said that it was not understood ^^to
apply to the sale of mUitary supplies or arms
in the ordinary course of commerce," but " to the use of a
neutral port by a belligerent for the renewal or augmentation
of such military supplies or arms for the naval operations
referred to in the rule." " The ports or waters of the neutral
are not," continued the Case, ^' to be made the base of naval
operations by a belligerent. Vessels of war may come and go
under such rules and regulations as the neutral may prescribe;
food and the ordinary stores and supplies of a ship not of a
warlike character may be furnished without question, in quan-
tities necessary for immediate wants; the moderate hospitali-
ties which do not infringe upon impartiality may be extended,
but no act shall be done to make the neutral port a base of
operations. Ammunition and military stores for cruisers can
not be obtained there; coal can not be stored there for succes-
sive supplies to the same vessel, nor can it be furnished or
obtained in such supplies; prizes can not be brought there for
condemnation. The repairs that humanity demands can be
given, but no repairs should add to the strength or efficiency
of a vessel beyond what is absolutely necessary to gain the
nearest of its own ports. In the same sense are to be taken
the clauses relating to the renewal or augmentation of military
supplies or arms and the recruitment of men. As the vessel
enters the port, so is she to leave it, without addition to her
eflfecti ve power of doing injury to the other belligerent If her
magazine is supplied with powder, shot, or shells; if new guns
are added to her armament; if pistols, or muskets, or cutlasses,
or other implements of destruction are put on board; if men
are recruited ; even if, in these days when steam is a power, an
excessive supply of coal is put into her bunkers, the neutral
will have failed in the performance of its duty."
Digitized by VjOOQ IC
THE GENEVA ABBITRATION. 575
The third rule merely boand the neatral,
ThA Third Bnie. said the Case of the United States, to ase <' due
diligence" to prevent any violation of the obli-
gations and daties prescribed by the first and second rules.
It was maintained by the Case of the United
^tli^tt^aTLLi!*' ^^^^ ^^** *^® doctrines above set forth were
in harmony with the views of the best publi-
cists.^ Lord Westbury, who was lord high chancellor of Eng-
land during the civil war in the United States, said in a
debate in the House of Lords: ^^It was not a question whether
armed ships had actually left our shores; but it was a ques-
tion whether the ships with a view to war had been built in
our ports by one of two belligerents. They need not have
been armed; but if they had been laid down and built with a
view to warlike operations by one of two belligerents, and this
was knowingly permitted to be done by a neutral power, it was
unquestionably a breach of neutrality.'' ' If, said the Case of
the United States, it should be asserted that the construction,
or the fitting out, or the arming, or the equipment of a vessel
of war was to be regarded as falling within the category of
dealings in articles ordinarily esteemed contraband of war, the
United States might content themselves with a reference to the
history of the legislation of both countries. Such a vessel was
regarded as organized war, both by the practice of nations
and by the publicists.' The only respectable authority that had
been cited even apparently to the contrary was an observation
which Mr. Justice Story thrust into an opinion of the Supreme
Court of the United States in the case of the Santissima Trini-
dad.^ It was clear, however, that he intended to confine his
statement to the case of a vessel of war equipped and dispatched
as a commercial venture, without previous arrangement or un-
derstanding with the belligerent and at the sole risk of the
I Citing Haatefenille, Des droits et des devoirs des nations neutres (Paris,
1849), II. 79-^; Bhmtschli, Opinion impartiale sur la question de TAlabama
et snr la mani^re de la r<^80udre (reprinted at Berlin, 1870, from the Revue
de Droit International) ; M. Rolin-Jacquemyn's review of Bernard's Neu-
trality of Great Britain, Revue de Droit International, 1871; Ortolan,
Diplomatie de lamer, II. 208; Pierantoni, La Question Anglo- Americana
deir Alabama (Florence, 1870); Martens's Causes C^l^bres, 11.229; De
Cussy, Droit Maritime, 11. 402.
« March 7, 1868, Hansard, 3d series, CXCI. 346, 347.
» Hansard, 1830, XXIII ; Phillimore's Int. Law, 1. 229 ; Ortolan, Diplomatie
de la mer, II. 214; Heffter, Droit Int. (Bergson's ed.), 296.
^7Wheaton, 283.
Digitized by LjOOQIC
576 INTERNATIONAL ARBITRATIONS.
owner. On the very day after the case of the Santissima Trini-
dud was decided, Chief Justice Marshall, in a similar case of a
vessel built in Baltimore, pronounced theopinion of the Supreme
Court to the effect that the facts as to the vessel showed a vio-
lation of the laws of the United States in her original construc-
tion, equipment, and arming, and that, should the court decide
otherwise, the laws for the preservation of the neutrality of the
country would be completely eluded.^
It had, said the Case of the United States,
eeto iiigerent ^^^^^^ intimated in the course of the discua-
ComxniflsioziB.
sious upon the questions at issue, that the
power of the British Government to interfere with, to arrest,
or to detain either of the belligerent cruisers whose acts were
complained of ceased when it was commissioned as a man of
war, and that at the same time the liability of that government
for their actions then ceased. The liability to make compensa-
tion could not, however, be escaped in such a "frivolous way."
Few of the cruisers built and armed in Great Britain ever saw
the line of the coast of the insurgent States. The FloriAa^
indeed, entered the harbor of Mobile, but she passed the block-
ading squadron as a British man-of-war. In most cases the
commissions went out irom the branch office of the Confederate
navy department established at Liverpool, from which the
sailing orders of the vessels and the instructions to their com-
manders were issued. The comedy was played of completing
on the high seas what had been carried to the verge of com-
pletion in England. The parallel was complete between the
commissions in question and those issued by Genet in 1793,
which were disregarded by the United States at the instance
of Great Britain. The United States did not deny the force
of the commission of a man-of-war issuing from a recognized
power. But they cou6dently denied that the receipt of a
commission by a vessel like the Alabama^ the Floriday the
Georgia, or the Shenandoah exempted Great Britain from the
liability growing out of the violjition of her neutrality.
In this relation the Case of the United States
*-!L ^*^!^°^* discussed to the cases of the Santissima li'ini'
dad^ and the Gran Para? During the war
between the United States and Great Britain of 1812 a priva-
teer called the Monmouth was constructed at Baltimore and
I The Gran Para, 7 Wheaton, 471.
27 Wheaton,283.
3 Id. 471.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 577
cruised against the enemy. After the peace she was stripped
of her armameut and converted into a brig. She was subse-
quently loaded with munitions of war, armed with a portion of
her original armament, and sent to Buenos Ayres (which was
then a revolted colony of Spain recognized as a belligerent,
but not recognized as an independent government) to find a
market for her cargo. The supercargo was also authorized
"to sell the vessel to the Government of Buenos Ayres if he
could ohtcBin a suitahlfi price.^^ He did sell her, and she subse-
quently entered the service of that government as a man-of-
war. After she was thus commissioned she pat into a port
of the United States, where she enlisted thirty new men; and
she took with her when she put to sea the newly enlisted men,
and a tender which carried some mounted guns and twenty-five
men. After this addition to her power, assisted by the tender,
she captured the Spanish vessel Santissima Trinidad, and car-
ried her cargo into Norfolk, a port of the United States, where
the Spanish consul, acting on behalf of the owners of the prop-
erty, claimed restitution of it. The court decreed restitution
on the ground of an illegal increase of armament in the neutral
territory after the commission.
The case of the Oran Para was similar. The
The ^Oran Para/' Grail Para was a Portuguese vessel which
was captured by a Buenos Ayrean man-of-war
called the Irresistible. In this case Chief J ustice Marshall said :
" That the Irresistible was purchased, and that she sailed out
of the port of Baltimore, armed and manned as a vessel of war,
for the purpose of being employed as a cruiser against a nation
with whom the United States were at peace, is too clear for
controversy. That the arms and ammunition were cleared out
as cargo can not vary the case. Nor is it thought to be mate-
rial that the men were enlisted in form as for a common mer-
cantile voyage. There is nothing resembling a commercial
iid venture in any part of the transaction. The vessel was con-
structed for war, and not for commerce. There was no cargo
on board but what was adapted to the purposes of war. The
crew was too numerous for a merchantman, and was sufficient
for a privateer. These circumstances demonstrate the intent
with which the Irresistible sailed out of the port of Baltimore.
But she was not commissioned as a privateer, nor did she at-
tempt to act as one, until she reached the Biver La Plata, when
a commission was obtained, and the crew reenlisted. This
court has never dex^ided that the offense adheres to the vessel,
whatever changes may have taken place, and can not be depos-
ited at the termination of the cruise in preparing for which it
5627 37
Digitized by LjOOQIC
578 INTERNATIONAL ARBITRATIONS.
was committed ; and as the Irresistihle made no prize on her
passage from Baltimore to the Kiver La Plata, it is contended
that her offense was deposited ther%, and that the court can
not connect her subsequent cruise with the transactions at
Baltimore. If this were to be admitted in such a case as this,
the laws for the preservation of our neutrality would be com-
pletely eluded, so far as this enforcement depends on the resti-
tution of prizes made in violation of them. Vessels completely
fitted in our ports for military operations need only sail to a
belligerent port, and there, after obtaining a comniissiou, go
through the ceremony of discharging and reenlisting their
crew, to become perfectly legitimate cruisers, purified from
every taint contracted at the place where all their real force
and capacity for annoyance was acquired. This would, indeed,
be.a fraudulent neutrality, disgraceful to our own government,
and of which no nation would be the dupe. It is impossible
for a moment to disguise the facts that the arms and ammuni-
tion taken on board the Irresistible at Baltimore were takeu
for the purpose of being used on a cruise, and that the men
there enlisted, though engaged in form as for a commercial
voyage, were not .so engaged in fact. There was no commer-
cial voyage, and no individual of the crew could believe there
was one. Although there might be no express stipulation to
serve on board the Irresistible after her reaching the La Plata
and obtaining a commission, it must be completely understood
that such was to be the fact. For what other purpose could
they have undertaken this voyage! Everything they saw,
everything that was done, spoke a language too plain to be
misunderstood. • * • It is therefore very clear that the
Irresistible was armed and manned in Baltimore in violation
of the laws and of the neutral obligations of the United States.
We do not think that any circumstances took place in the
Kiver La Plata by force of which this taint was removed.''
The Case of the United States also referred
® " ook?*^^" ^^ *^^ ^^^^ ^^ *^® ^^PP^^^^^^^^} which was
the name given to a gunboat purchased of the
British Government in 1864 by persons who proved to be
agents of the insurgents. On the way from the Thames to
Calais, where the equipment was to be completed, "the name
of the vessel was changed to the Rappahannock^ the insurgent
flag was hoibted, an insurgent officer, holding an insurgent
commission, took the command, and the crew were mustered
into the service of the insurgents. On arrival at Calais at-
tempts were made to complete the equipment. The French
Government stopped this by placing a man-of-war across the
bow», and holding the vessel as a prisoner, and the Kappa-
hannock was thus prevented from destroying vessels and com-
jnerce sailing under the flag of a nation with which France
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 579
was at peace.'' The British Government *' itself recognized
the principle when it ordered the Alabama to be seized at
Nassau, and when it found fault with the governor of the Cape
of Good Hope for not detaining the Tuscaloosa at Gape Town."
"The principle for which the United States contend has there-
fore," said the Case, *'been recognized by Great Britain, Spain,
Portugal, France, and the United States."
In closing this branch of the subject the
tr^D tl ^^ Case of the United States laid down the fol-
lowing rules as having been established:
1. That it is the duty of a neutral to preserve strict and im-
partial neutrality as to both belligerents during hostilities.
2. That this obligation is independent of municipal law.
3. That a neutral is bound to enforce its municipal laws and
its executive proclamations; and that a belligerent has the
right to ask it to do so; and also the riglit to ask to have the
powers conferred upon the neutral by law increased if found
insufficient.
4. That a neutral is bound 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 in-
tended to cruise or to carry on war against a i)ower with
which it is at peace.
5. That a neutral is bound to use like diligence to prevent
the construction of such a vessel.
6. That a neutral is bound to use like diligence to prevent
the departure from its jurisdiction of any vessel intended to
cruise or carry on war against any power with which it is at
peace, such vessel having been specially adapted, in whole or
in part, within its jurisdiction to warlike use.
7. That a neutral may not permit or suflfer either belligerent
to make use of its ports or waters as the base of naval oper-
ations against the other.
8. That a neutral is bound to use due diligence in its ports
or waters to prevent either belligerent from obtaining there a
renewal or augmentation of military supplies, or arms for bel-
ligerent vessels, or the recruitment of men.
9. That when a neutral fails to Uvse all the means in its power
to prevent a breach of the neutrality of its soil or waters, in
any of the foregoing respects, the neutral should make com-
pensation for the injury resulting therefrom.
10. That this obligation is not <lischarged or arrested by the
change of the offending vessel into a x>ublic man-of-war.
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580 INTERNATIONAL ARBITRATIONS.
11. That this obligation is not discharged by a fraudulent
attempt of the offending vessel to evade the provisions of a
local municipal law.
12. That the offense will not be deposited so as to release
the liability of the neutral, eveu by the entry of the offending
vessel into a port of the bolligereut, and there becoming a man-
of-war, if any part of the original fraud continues to hang
about the vessel.
In the fourth chapter the Case of the
^*Hentoai^l^tiM™ United States discussed the particular matters
*^ wherein Great Britain failed to perform its
duties as a neutral." When the authorities at Kichmoud,
who had no ports of their own in which vessels could be built,
equipped, or fitted out, or into which prizes could be brought,
were sure that their right to carry on a maritime war would
be recognized by Great Britain, they sent Mr. J. D. Bullock, who
had been an officer in the Navy of the United States, to Great
Britain for the purpose of contracting for and superintending
the construction of men-of-war. Mr. North, also formerly of the
United States Navy, was empowered "to purchase vessels"
for the insurgents; and Mr. Caleb Iluse, formerly of the Ord-
nance Department of the Army of the United States, was sent
to London " for the purchase of arms and munitions of war."
They contiiiued to discharge their duties during most of the
struggle. The means for carrying on these operations were to
be derived from the proceeds of the Southern cotton crop, and
the insurgent agents established a credit in Liverpool upon
the faith of it. To carry out this plan a firm under the name
of Frazer, Trenholm & Co., composed of merchants from Char-
leston, South Carolina, established a branch in Liverpool.
This branch was in charge of Charles K. Prioleau, a member
of the Charleston firm, who became a naturalized British sub-
ject. The head of the firm, George A. Trenholm, remained in
Charleston, and became secretary of the treasury of the gov-
ernment at Kichmond. An arrangement was made by which
the cotton of the insurgent authorities was to be sent to Fi'a-
zer, Trenholm & Co., to be drawn against by the purchasing
agents of the insurgents. "Thus there was early established
in Great Britain," said the American Case, "a branch of the
war department of the insurgents, a branch of their navy
department, and a branch of their treasury, each with almost
l)lenaiy powers. These things were done openly and noto-
riously."
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Higrfize^^tf^C^^lC
THE GENEVA ARBITRATIOK. 581
In this way, said the Case of the United
The Fort of HusaiL States, blockade runners, beginning with the
steamer Bermuda^ were sent out by the Con-
federate agents. The difficulties, however, which the Bermuda
encountered in running the blockade led to the establishment
by the insurgents of a set of agents in the British West Indies.
Purchases made in England were sent to Nassau in British
bottoms and were there transshipped into steamers of light
draft and great speed, constmctiCd for the purpose, which
could carry coal enough for the short passage from Nassau to
Charleston, Savannah, or Wilmington. Mr. Lewis Heyliger,
of New Orleans, went to Nassau and remained there as the
agent and representative of the insurgents during the rebel-
lion. He obtained from the colonial authorities a modification
of the existing laws, so as to allow the privilege of breaking
bulk and of transshipment. This modification was all the in-
surgents wanted. It converted the port of Nassau into an
insurgent port, which could not be blockaded by the naval
forces of the United States. The Case of the United States
asked the tribunal to find that this act was a violation of the
duties of a neutral.
Not long afterward Earl Bnssell informed the lords commis-
sioners of the admiralty that, during the continuance of the
pending hostilities, no ship of war or privateer belonging to
either of the belligerents should be permitted to enter or
remain in Nassau or any other port or in the waters of the
Bahama Islands, except by special leave of the lieutenant-
governor or in case of stress of weather. Under this " unfriendly
order" vessels of war of the United States were, said the Case
of the United States, excluded from those waters, while they
were open to vessels of the insurgents, owned by the authori-
ties at Richmond, and bringing their cotton to be transshipped
into British bottoms to Frazer, Trenholm & Co., in Liverpool,
and in turn taking on board the cargoes of arms and munitions
of war which had been dispatched thither from Liverpool. At
the very time these things were going on, the colonial secretary
at Nassau declined to permit coal to be landed there for the
Government of the United States, except on condition that it
should not be reshipped or otherwise used in any manner which
might, in the opinion of the law authorities of the colony, involve
a breach of the neutrality proclamation of the 13th of May 1861 ;
and particularly that it should not be used for the purpose of
coaling or aftbrding facilities for coaling the vessels of war of
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582 INTERNATIONAL ARBITRATIONS.
the United States during tlie continuance of hostilities. The
sincerity of the colonial authorities might, said the Case of the
United States, be estimated by the fact (1) that, although the
Queen's proclamation inhibited Her Majesty's subjects from
breaking or endeavoring to break a lawful blockade, yet those
authorities, in order to prevent vessels engaged in that busi-
ness from being intercepted, permitted the cargoes to be trans-
shipped for that very purpose; (2) that they also, in opposition
to that proclamation, facilitated shipments of contraband ; and
(3) that, although the proclamation did not mention poal, and
although coal was not regarded by Her Majesty's government
as an article necessarily contraband of war, yet the Govern-
ment of the United States was forbidden by the colonial
authorities to deposit its coal at Nassau, except on condition
that it would not be used. The attention of Earl Russell was
called by Mr. Adams to the use which the insurgents were
making of the port of Nassau as a depot of supplies, and his
lordship replied that he had received "a report from the
receiver-general of the port of Nassau stating that no warlike
stores" had "been received at that port," and that "no muni-
tions of war " had " been shipped from thence to the Confed-
erate States." The failure of Her Majesty's government to
ascertain facts which were all within its reach, after Mr.
Adams had called attention to them, was, said the Case, a
neglect of the diligence which was "due" from Great Britain
to the United States, and tainted all the subsequent conduct
of Great Britain toward the United States during the struggle.
The instructions issued from the foreign
**c^iifed^*'tM. * ^ffi^®» prescribing the amount of hospitalities
to be extended to the belligerents, were sum-
marized in the Case of the United States as follows:
"1. No ship of war or privateer of either belligerent was to
be permitted to enter any port, roadstead, or water in the Ba-
hamas except by special leave of the lieutenant-governor, or in
case of stress of weather; and in case such permission should
be given, the vessel was nevertheless to be required to go to
sea as soon as possible, and with no supplies except such as
might be necessary for immediate use.
"2. No ship of war or privateer of either belligerent was to be
permitted to use British ports or waters as a station or place
of resort for any warlike purpose, or for the purpose of obtain-
ing any facilities of warlike equipment.
"3. Such ships or privateers entering British waters were to
be required to depart within twenty -four hours after entrance,
except in case of stress of weather, or requiring provisions or
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THE GENEVA ARBITRATION. 583
things for the crew or repairs; in which cases they were to go
to sea as soon as possible after the expiration of the twenty-
four hours, taking only the supplies necessary for immediate
use; they were not to remain in port more than twenty-four
hours after the completion of necessary repairs,
"4. Supplies to such ships or privateers were to be limited
to what might be necessary for the subsistence of the crew, and
to enough coal to take the vessel to the nearest port of its own
country or to some nearer destination ; and a vessel that had
been supplied with coal in British waters could not be again
supplied with it within British jurisdiction until after the ex-
piration of three months from the date of the last supply taken
from a British port."
Almost simultaneously, said the American Case, with the
announcement by Earl Eusseli of an imaginary condition of
affairs at Nassau, Lord Palmerston stated to Mr. Adams that
"it would not do for the United States ships of war to harass
British commerce on the high seas under pretense of prevent-
ing the Confederates from receiving things that are contraband
of war.'' Thus, in reply to the complaint of the United States
that the insurgents were making illegal use of the port of Nas-
sau, the British Government, through Earl Eussell and Lord
Palmerston, excluded United States vessels from that port,
where the truth of the allegations could best be examined, and
warned the United States not to attempt to prove them by
examining too closely, on the high seas, the vessels which sailed
under the British flag. When the transactions at Nassau had
become so notorious that they became " dangerous," the base
of operations was shifted to Bermuda.
Having traced the proceedings of the treas-
1 ^k^^TY^alct' " "^^ ^^^ ^^^^ department agencies established
' by the insurgents in Great Britain during the
years 1861-1862, the Case of the United States proceeded to
trace the transactions of the naval agencies under the direc-
tion of Bullock. Bullock established himself in Liverpool in
the summer of 1861, and on the 9th of October In that year
the drawings of the Alahama were signed by the Lairds, who
built her. A contract was also made about that time for the
construction of the Florida^ which prior to her departure from
British jurisdiction was known as the Oreto. Early in Feb-
ruary 1862 she began to take in coal; her gun carriages were
soon taken on board, in pieces, some in a rough state, and were
put in the hold, and a day or two later she received her pro-
visions. When she sailed she took a crew of 52 men and some
guns, and was in every respect a man-of-war, except that her
Digitized by V^OOQ IC
584 INTERNATIONAL ARBITRATIONS.
armament was not in place. In this condition she was con-
signed by Bullock to Heyliger, at Nassau. Mr. Adams twice
called the attention of Earl Bussell to the character and desti-
nation of the vessel, and Her Majesty's government had ample
time to ascertain her character and detain her.
The Alabama was a larger vessel, and the work on her pro-
gressed more slowly. She was launched on the 15th of May
1862, and her trial trip was made on the 12th of June. The
money for her was advanced by Frazer, Trenholm & Co. Cap-
tain Bullock went on board of her almost daily, and it was
even said in Liverpool that he was to command her. Mr.
Adams repeatedly called the attention of Earl Russel to what
was going on. <^The evidence of the criminal character of the
vessel became so overwhelming that Her Majesty's govern-
ment was at length induced to give an order for her detention.
Before the order reached Liverpool she had escaped. She ran
down to Moelfra Bay, on the coast of the Island of Anglesey,
and there took on board twenty or thirty men from the tug
Hercules^ with the knowledge of the British officials at Liver-
pool. She then sailed to the Azores, where she was met by
the Agrippina from London and the Bahama from Liverpool.
These vessels brought her officers, her armaments, and her
coal. The transshipments were made, and then the British
ensign was hauled down and the insurgent flag hoisted.'' In
the discussion that ensued Lord Bussell admitted that it was
"undoubtedly true that the Al^am^a was partly fitted out in
a British port."
The operations of Bullock were also manifest in other quar-
ters of the globe. Early in 1862 the insurgent steamer Sumter
was permitted to be sold at Gibraltar, against the protest of
the United States officials, under "a power of attorney from
a certain Bullock, who styles himself senior naval officer in
Europe." On August 21, 1862, Mr. Mallory, the Confederate
secretary of the navy, wrote to Mr. Jefferson Davis that a con-
tract had been made '^for the construction abroad and delivery
of six iron-clad steam vessels of war, at an estimated cost of
about $3,500,000."
On January 19, 1863, Mr. Seward transmitted to Mr. Adams
"a copy of some treasonable correspondence of the insurgents
at Richmond with their agents abroad," which, said Mr. Sew-
ard, threw " a flood of light upon the naval preparation they
are making in Great Britain." On the 9th of February these
papers were communicated by Mr. Adams to Earl Bussell, with
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Digitized by VjOOQ IC
THE GENEVA ARBITRATION. 585
the statement that they showed a deliberate attempt, to estab-
lish within the limits of the Kingdom "a system of action in
direct hostility to the Government of the United States," em-
bracing the building and fitting out of ships of war, and the
obtaining from Her Majesty's subjects of funds with which to
execute these hostile projects. A month later Earl Eussell
replied that the papers merely showed that certain instructions
had been given to the agents of the Confederate States, but
that they contained no proof that those agents had " brought
themselves within the reach of any criminal law of the United
Kingdom."
At one time after the escape of the Alabama the British
cabinet, said the Case of the UnitM States, seemed to enter-
tain the idea of amending the foreign-enlistment act. On
the 19th of December 1862 Earl Russell informed Mr. Adams,
in reply to the latter's representations, that Her Majesty's
go vemmen t were of '^ opinion that certain amendments might be
introduced into the foreign-enlistment act which, if sanctioned
by Parliament, would have the effect of giving greater power
to the Executive to prevent the construction in British ports
of ships destined for the use of belligerents," and he expressed
liis readiness to receive from Mr. Adams suggestions as to how
the British statute, as well as the neutrality laws of the United
States, might be improved. The Government of the United
States, though of opinion that its laws were sufficiently rigor-
ous, authorized Mr. Adams to confer with Earl Bussell. But
when Mr. Adams offered to confer, Lord Russell replied that
since his note was written the subject had been considered by
the cabinet, and the lord chancellor had expressed the opinion
that the British law was sufficiently effective, and that under
these circumstances he did not see that he could have any
change to propose. From this moment the British Govern-
ment, said the Case of the United States, "resisted every
attempt to change the laws and give them more vigor;" and
the United States were forced '^to believe that no complaints
would be listened to by Her Majesty's government which were
not accompanied by proof that the persons complained of had
brought themselves * within reach of the criminal law of the
United Kingdom.' " Yet Lord Russell, in a letter to Lord
Lyons, stated that he had admitted, in an interview with Mr.
Adams, "that the cases of the Alabama and Oreto were a
scandal and in some degree a reproach to our [British] laws."
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586 INTERNATIONAL ARBITRATIONS.
Encoaraged by the immunity afforded by
***^ diu"' **""^^^ decisions of Her Majesty's government,
the insurgent agents in Great Britain began,
said the Case of the United States, to extend their oi)erations.
Early in April 1863 a steamer called the Japan^ but afterward
known as the Oeorgia, left the Clyde with intent to depre-
date on the commerce of the United States. A small steamer
called the Alar, belonging to a British subject, was dispatched
with her armament and ammunition. They met off the French
coast, and in twenty-four hours the guns and ammunition were
transferred. In March 1863 a new gunboat, to be called the
Alexandraj was launched at Liverpool. Proceedings were
taken against her under the foreign-enlistment act, but,
though her hostile character was clearly proved, the jury,
under the construction of the law given by the court, promptly
returned a verdict in her favor. The judge said that a neutral
might "make a vessel and arm it, and then offer it for sale" to
a belligerent; that, afortiorij "if any man may build a vessel
for the purpose of offering it to either of the belligerent pow-
ers, • • *. may he not execute an order for it!" That
"to 'equip' is *to furnish with arms;'" "in the case of a ship
especially, it is to furnish and complete with arms;" that
" 'equip,' 'furnish,' 'fit out,' or 'arm,' all mean precisely the
same thing;" and he closed this branch of the case by saying,
"the question is whether you think that this vessel was fitted.
Armed she certainly was not, but was there an intention that
she should be finished, fitted, or equipped in Liverpoolf Be-
cause, gentlemen, I must say, it seems to me that the Alabama
sailed away from Liverpool without any arms at all ; merely a
ship in ballast, unfurnished, unequipped, unprepared; and her
arms were put in at Terc^nra, not a port in Her Majesty's do-
minions. The foreign-enlistment act is no more violated by
that than by any other indifferent matter that might happen
about a boat of any kind whatever." This ruling was not re-
versed, and stood as the law of England till after the close
of the civil war.
At the time it was made, two ironclads,
^ ^^ ' afterward known as "Lairds' ironclads," or
"Lairds' rams," were in course of construction at Birkenhead,
opposite Liverpool. The keel of one of them was laid in the
stocks from which the Alabama had been launched. Notorious
facts, showing their construction as Confederate men-of-war,
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THE GENEVA ARBITRATION. 587
were communicated by Mr. Adams to Earl Eassell on July 11,
1863, July 16, July 25, August 14, and September 3. In his
note of September 3 Mr. Adams said that he had been directed
"to describe the grave nature of the situation in which both
countries must be placed in the event of an act of aggression
committed against the government and the people of the
United States by either of these formidable vessels.'^ On the
4th of September he submitted evidence to show the prepara-
tion of one of the vessels for immediate departure. Late in
the afternoon of the same day Mr. Adams received a note from
Earl Eussell, dated the 1st, saying: "Her Majesty's govern-
ment are advised that they can not interfere in any way with
these vessels." On the 5th Mr. Adams replied, expressing his
"profound regret" at the conclusion at which Her Majesty's
government had arrived, and added : " It would be superfluous
in me to point out to your lordship that this is war." On the
8th of September Mr. Adams received a brief note in which
it was stated that instructions had been issued which would
prevent the departure of the two ironclads from Liverpool.
About this time, said the Case of the United
Ca eTo States, an event took place at the Cape of Good
Hope which tested afresh the purpose of Her
Majesty's government to maintain its neutrality. In August
1863 the Alabama arrived at Cape Town, and was soon fol-
lowed by the TuseaZoosa, a "prize" which she had captured off
the coast of Brazil, and which she affected to treat as a tender.
Though the Tuscaloosa had never been condemned, and still
had on board her cargo of wool, and though she had on board
only two guns, insufficient for any service other than that of
slight defense, she was admitted and treated as a man-of-war.
The British Government disapproved of this action and said
that the most proper course would have been " to prohibit the
exercise of any further control over the Tuscaloosa by the
captors, and to retain that vessel under Her Majesty's con-
trol and jurisdiction until properly reclaimed by her original
owners." These expressions were treated by the governor as
a censure, and the Tuscaloosa having again come within the
jurisdiction, he seized her and reported the facts to London.
Her Majesty's government disavowed this act, and directed
the governor, under "the peculiar circumstances of the case,"
to restore her "to the lieutenant of the Confederate States
who lately commanded her; or, if he should have left the
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588 INTERNATIONAL ARBITRATIONS.
Cape, then to retain her" till she might be handed over to
someone possessing ''authority from Captain Semmes, of the
Alabamay or from the government of the Confederate States,
to receive her."
The Case of the United States now resumed
Confederate Blockade the history of army purchases and blockade
Bmrnerg. rujiniug. Qn the 3d of November 1863 Mr.
Adams laid before Earl Russell new proofs to show the estab-
lishment at Bermuda of an insurgent depot of naval stores.
On the 27th Earl Russell answered that Her Majesty's govern-
ment did not consider that it could properly interfere in the
matter. Other rei)resentations to the same effect were made
by Mr. Adams, who closed the discussion by calling Earl
Russell's attention to the condition exacted from all vessels in
trade with the insurgent i>orts, that one-half of the tonnage
of each vessel might be employed by the Confederate govern-
ment for its own use both on the outward and homeward
voyage; to which Earl Russell replied that, admitting all the
facts stated to be true, there was nothing in them worthy of
attention, since Her Majesty's subjects were "entitled by inter-
national law to carry on the operations of commerce equally
with both belligerents, subject to the capture of their vessels
and to no other penalty." Evidence was again and again laid
before Earl Russell to show that these blockade runners were,
in fact, transi)orts of the insurgents, carrying their funds for
Liverpool, and bringing back arms and munitions of war, and
that the operations of these vessels were clearly within the
terms of the foreign-enlistment act. On the 1 5th of March 1865
Mr. Adams complained of this matter for the last time. The
United States steamer 8a7i JaxnntOy having been wrecked on
the Bahamas, and her officers and crew having found shelter
at Nassau, the American man-of-war Honduras was sent there
for the purpose of paying in coin the claims for salvage. The
United States consul' in vain asked x)ermission for the Hondu-
ras to enter the port, although the Confederate cruiser Floridn
had, less thjin six months before, remained eleven days at Ber-
muda, and taken on board a full supply of coal. Mr. Adams
stated to Earl Russell that this incident had made a painful
impression in the United States, especially as there was not a
day during the month in which it happened when thirty-live
vessels engaged in breaking the blockade were not to be seen
flaunting their contraband flags in that port. Neither had Its
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THE GENEVA AKBITRATION. 589
hospitality been restricted to that ^^ hybrid class" of British
ships running its illegal ventures on joint account with the
insurgent authorities in the United States. The Glhatneleon^
before known as the TallahoHHee^ and still earlier as a British
steamer fitted out from Loudon to play the part of a privateer
out of Wilmington, was lying at that very time in Nassau,
relieved, indeed, of her guns, but still retaining all the attri-
butes of her hostile occupation ; and only a few days earlier
the steamer Laurel had reappeared at Nassau, after assuniing
the name of the Confederate States, and had not only been
received there, but commissioned with a i)Ost mail to a port of
Her Majesty's Kingdom.
In the fifth chapter the Case of the United
Careen of the Con- g|.^^^g completed the discussion of the mat-
federate CmiBorB.
ters " wherein Great Britain fo^iled to perform
its duties as a neutral," by tracing the origin and career of
each of the "Confederate cruisers,'' the Sumter; the Nash-
ville; the Florida and her tenders, the Claretice, the Ta^onyj
and the Archer ; the Alabama and her tender the Ttutcaloona;
the Georgia; the Tallahassee, or the Olustee; the ChicJca-
mauga; and the Shenandoah. The facts in th€|^e cases and
the arguments upon them are discussed in the Digest.
The sixth and last chapter of the American
Qneeuoii of Dam- q^^^ ^^ entitled: "The tribunal should award
ages.
a sum in gross to the United States." The
claims of the United iStates were classified as follows:
"1. The claims for direct losses growing out of the destruc-
tion of vessels and their cargoes by the insurgent cruisers.
"2. The national expenditures in pursuit of those cruisers.
"3. The loss in the transfer of the American commercial
mairine 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
ret^llion."
The claims for direct losses were subdivided into:
"1. Claims for destruction of vessels and property of the
Government of the United States.
" 2. Claims for the destruction of vessels and property under
the flag of the United States.
"3. Claims for damages or injuries to persons, growing out
of the destruction of each class of vessels."
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590 INTERNATIONAL ARBITRATIONS.
The government vessels destroyed were of two classes, those
under the charge of the Treasury Department and those under
the charge of the Navy Department. Evidence was presented
to enable the tribunal to determine the amount of damage
which should be awarded for the destruction of vessels or
property, whether of the government or of private persons.
A detailed statement was presented of the amount of the
national expenditures in pursuit of the Confederate cruisers.
The total amount of the claims submitted, so far as they were
definitely estimated, was $26,101,907.31, exclusive of interest.
This sum was composed of two principal items, $7,080,478.70,
representing the expenses incurred by the United States in
fitting out vessels to cruise for the Alabama and other Con-
federate cruisers, and $19,021,428.61, representing the amount
claimed for the seizure, detention, and destruction of vessels by
those cruisers. The latter item included claims ibr increased
war premiums.
Of the " national '^ or '* indirect " claims no estimate was
made. A statement by Mr. Cobden in the House of Commons,
in 1864, was brought to the attention of the tribunal, to show
the losses suffered by the United States in the transfer of the
American commercial marine to the British flag. And it was
said to be "impossible for the United States to determine,"
and " perhaps impossible for anyone to estimate with accuracy,
the vast injuries which these cruisers caused in prolonging
the war." By the battle of Gettysburg in July 1863 the ag-
gressive force of the insurrection on land was crushed. There-
after " its only hope lay in prolonging a defense until, by the
continuance of the permitted violations of British neutrality
by the insurgents, the United States should become involved
in a war with Great Britain." In pursuance of this policy the
Confederate authorities '^ withdrew their military forces within
the lines of Richmond, and poured money into Bullock's hands
to keep afloat and increase his Britisli built navy, and to send
it into the most distant seas in pursuit of the merchant marine
of the United States."
On the amounts which should be. allowed in respect of the
several losses and injuries complained of, the American Case
asked for interest to the day when the award was payable by
the terms of the treaty — twelve months after the date of the
award. The rate of interest asked for was 7 per cent, the legal
rate in New York, and July 1, 1863, was suggest^id a« an
^'average day'' from which the interest should be computed.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 591
The theories of law and of fact on which the
Theory of Uie Amer- ^^^ ^^ ^^^ United States was constructed were
loaa Caso.
succinctly explained by Mr. Davis, its author,
in his final report as agent of the United States at Geneva.*
Setting out with the assumption that the *• tribunal of arbitra-
tion was a judicial body, substituted by the parties to take the
place of force, and emiK)wered to try and determine issues
which otherwise could be settled (if at all) only by war,'' the
author of the Case deemed it necessary, in order that full justice
might be done, that the injuries of which the United States
complained should be stated ^^with the fullness necessary tiO a
^ Papers Relating to tbe Treaty of Washington, IV. 2. Various statements
having been made as to the authorship of the Case of the United States, it
is proper to say that it was the work of Mr. J. C. Bancroft Davis, thu
American agent. (Mr. Fish and the Alabama Claims, 86.) In Apple-
ton's Cyclopsedia of American Biography the authorship of the Case is
ascribed to the late Chief Justice Waite. It is probable that this erroneous
statement was due to an inadvertent supposition that the Case was pre-
pared by the American counsel at Geneva, of whom Mr. Waite was one. It
is certain that that eminent man never authorized such a statement him-
self. On the contrary, when, on a certain occasion, I referred to his part
in the litigation at Geneva, he disclaimed with characteristic modesty any
credit for the result, and declared that in his opinion the success of the
United States was largely due to Mr. Davis, who, as he said, not only pre-
pared the American Case, but infused life into the American cause to the end.
When the first five chapters of the Case- were completed they were sub-
mitted, in the form of a printed memorandum, to President Woolsey, of
Yale, Mr. William Beach Lawrence, Mr. £. K. Hoar, and Mr. Caleb Cushing.
President Woolsey ''made many valuable suggestions, most of which were
a<lopted.'' Mr. Lawrence, who was consulted during the composition of
the chapters, as well as afterward, gave ''valuable hints, which improved
the work." Mr. Hoar "expressed his general approval,^' and made several
suggestions, which were adopted ; and Mr. Cushing "made several valuable
contributions, all of which were embodied in the work." Different mem-
bers of the Cabinet were also consulted, "and, so far as they made sugges-
tions, their views were adopted." "Several valuable contributions or
hints" were also received from Mr. Fish. After the first five chapters were
thus considered and revised, the sixth and final chapter, containing the
formal statement of claims, was written; but, not being argumentative in
character, it wiis not sent out for criticism as the other chapters had been.
(See Report of Mr. Davis, Papers Relating to the Treaty of Washington,
IV. 3.)
Mr. George F. Edmunds, in his memorial address on Mr. Fish before the
legislature of New York, referring to Mr. Davis as the author of the Amer-
ican Case, expressed the opinion that " no stronger statemen t of the position
and rights of the United States could have been set forth by anj-one."
(Proceedings of the Legislature of the State of New York in Memory of
Hou. Hamilton Fish, 48. )
Digitized by LjOOQIC
592 INTERNATIONAL ARBITRATIONS.
determination in a court of law, and with the same frankness
with which they would be stated in case of an appeal to force."
In this view of the subject, the inquiry as to tbe attitude and
the animus of the British Government toward the United States
during the civil war became of the utmost importance, especially
as afifecting the question whether that government had used
^*due diligence" in the performance of its neutral duties. It
was not denied that there were many '^acts of insubordi nates
which, taken individually and by themselves, would not form a
just basis for holding culpable a government which was honestly
and with vigilance striving to i)erform its duty as a neutral."
Yet these same acts might, when taken in connection with each
other, and with proof of animus, establish culpability in the
government itself. Thus, it might be argued that the British
Government would not be responsible for such acts, taken by
themselves, as those of the collector of customs at Liverpool
respecting the Florida and the Alabama, of the authorities at
Nassau respecting the arming of the Florida at Green Cay,
and subsequently respecting her sui)plies of coal, and of the
authorities at Melbourne respecting the Shenandoah. But
these acts were, it was maintained, all imbued with the char-
acter of culpable negligence, when it was shown "that the
Government of Great Britain, by its indiscreet haste in coun-
seling the Queen's proclamation recognizing the insurgents as
belligerents, by its i)reconcerted joint action with France
respecting the declarations of the Congress of Paris, by its
refusal to take steps for the amendment of its neutrality laws,
by its refraining for so long a time from seizing the rams at
Liverpool, by its conduct in the affair of the Trenty and by its
approval of the course of its colonial officers at various times;
and that the individual members of government, by their open
and frequent expressions of sympathy with the insurgents, and
of desire for their success, had exhibited an unfriendly feeling,
which might affect their own course, and could not but affect
the action of their subordinates."
Moreover, it was contended "that while there were particular
facts as to each vessel tending to IX-^ responsibility upon Great
Britain," the general facts that "the insurgents established
and maintained, unmolested throughout the insurrection, ad-
ministrative bureaus on British soil, by means of which the
several cruisers were dispatched from British ports or were
enabled to make them bases of hostile operations against the
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 593
[Tinted States, and that the British Government was cognizant
of it;" that *' Great Britain from the outset denied, and to the
hist persisted in denying, that the departure of vessels like the
Alabama and the Florida under any circumstances could be a
breach of international duty, and had refused to exercise dili-
gence to prevent such departure," and that ^< in point of fact
no such diligence hiui been exercised" — it was contended that
" these general indisputable facts were sufficient to carry re-
sponsibility for the acts of all the cruisers."
The British Case began with an exposition
The Bxitiali Case, of the subject- matter of the arbitration, as it
was " understood by the government of Her
Britannic Majesty." As to the claims embraced in the treaty,
it was said that the phrase "the Alabama claims" was under-
stood by Her Majesty's government to embrace all claims
"growing out of acts committed by" that vessel and by other
vessels which were alleged to have been procured, like the
Alabama, from British ports during the war, and under cir-
cumstances more or less similar. The only vessels, it was said,
in respect of the acts of which diplomatic claims had beeu made
by the Government of the United States were the Alabama
herself and the vessels formerly known as the Florida, the
Georgia, and the Shenandoah. On one occasion, since the close
of the war, the Government of the United States had men-
tioned a vessel called the Sumter as one of those in respect of
which it conceived itself to have claims against Great Britain.
But no claims in respect of the Sumter had been presented, nor
was Her Majesty's government aware of any grounds on which
such claims could be made with any show of reason.
The second part of the British Case opened
Propottticmsofinter- ^^^^ ^ statement of the following propositions,
which were said to be in accordance with the
principles of international law and the practice of nations:
" 1. It is the duty of a neutral government, in all matters
relating to the war, to act impartially toward the belligerent
powers; to concede to one what it concedes to the other; to
refuse to one what it refuses to the other.
" 2. This duty, inasmuch as it flows directly from the concep-
tion of neutrality, attends the relation of neutrality wherever
it exists, and is not afl'ected by considerations arising from the
political relation which before the war the belligerents may
have sustained to one another.
"3. Maritime war being carried on by hostilities on the high
5627 38
Digitized by LjOOQIC
594 INTERNATIONAL ARBITRATIONS.
seas, and through the instrameutality (ordinarily) of vessels
commissioned by public authority, a neutral power is bound to
recognize, in matters relating to the war, commissions issued
by each belligerent, and captures made by eaoh, to the sanie
extent and under the same conditions as it recognizes commis-
sions issued and captures made by the other.
" 4. Where either belligerent is a community or body of per-
sons not recognized by the neutral power as constituting a
sovereign state, commissions issued by such belligerent are
recognized as acts emanating, not indeed from a sovereign gov-
ernment, but from a person or persons exercising de facto^ in
relation to the war, the powers of a sovereign government.''
The British Case then referred to the seces-
Devrtopment of War ^.^^ movement, the attack on Fort Sumter, the
of oooessioii.
seizure by Virginia militia of Harpers Ferry,
and the proclamation of President Lincoln of April 15, 1861,
calling out the militia to the number of 75,000 men; to the
counter proclamation of Mr. Jeiiersou Davis, president of the
Confederate States, on the 17th of April, inviting applications
for letters of marque and reprisal; to the proclamation of
President Lincoln of April 19 for the blockade of the ports of
the seven States then in revolt; to his proclamation of April
27 extending the blockade to the ports of northern Virginia;
to the seizure of vessels and cargoes under these proclamations
of blockade, and their subsequent condemnation by the Su-
preme Court of the United states in the "prize cases," in which
it was declared that the proclamation of a blockade was "itself
official and conclusive evidence to the court that a state of war
existed which demanded and authorized a recourse to such a
measure under the circumstances peculiar to the case;" to the
note of Mr. Seward to Lord Lyons of May 1, 1861, referring
to the existing war and to the blockade of the ports of the
insurgent States; to the acts passed by the Confe<lerate con.
gress on May 6 and May 14, 1861, relating to letters of marque
and reprisal, and regulating the disposition of prizes; and to
the fitting out in the same mouth, or soon afterward, in the
Confederate ports, of a number of armed vessels, mostly of
small tonnage, which made a considerable number of captures,
among such vessels being the Calhoun^ the Jeff, DaviSy the
Savannah, the St, Nicholas , the Winslow, and the York, From
time to time other armed vessels were likewise sent out by the
Confederacy. The Sumter went to sea in June 1861; the Sallie
and the Nashville in October of the same year; the Ucho in
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 595
1862; the Retribution and the Boston in 1863; the Ghickamauga^
the Olutsee, and the Tallahassee in 1864. These vessels were
said to have taken from sixty to seventy prizes.
On the 14th of May 1861 Her Majesty's gov-
- ^!!«^ ^ ernment issued a proclamation of neutrality,
which, said the British Case, <^was published
fourteen days after the receipt in London of the news that Fort
Sumter had been reduced by bombardment, that the President
of the United States had called out 75,()00 men, and that Mr.
Jefferson Davis had taken measures for issuing letters of
marque; twelve days after receipt of intelligence that Presi-
dent Lincoln had published a proclamation of blockade; nine
days after a copy of that proclamation had been received from
Her Britannic Majesty's consul at New York, and three days
after the same proclamation had been officially communicated
to Her Majesty's secretary of state for foreign affairs by the
United States minister, Mr. Dallas." On the 1st of June 1861
Her Britannic Majesty's government issued orders by which the
armed ships of both belligerents were forbidden to carry prizes
into British waters. The Confederate government remon-
strated against these orders, and the Secretary of State of the
United States expressed his satisfaction with them as likely
to "prove a deathblow to Southern privateering." The gov-
ernment of the Emperor of the French issued a declaration of
neutrality on Juue 10, 1861; the Queen of Spain on June 17;
the government of the Netherlands in the same month, and
the Emperor of Brazil on August 1. Declarations, decrees, or
notifications were likewise issued by other maritime powers.
As illustrating the course pursued by Her
Case of the Sumter. Majesty's government, the British Case took
up the case of the Sumter, which sailed from the Mississipju
liiver on June 30, 1861, cruised for six months and captured
seventeen prizes. In the course of her cruise she entered the
dominions of Spain, the Netherlands, Venezuela, Great Britain,
Brazil, and France. She obtained coal and supplies at Cien-
fuegos, Oara9ao, Paramaribo, Trinidad, and Martinique suc-
cessively. On her arrival at Cienfuegos she had with her six
prizes, which she left behind lier when she sailed, and which
were subsequently released by order of the Captain-General
of Cuba, on the ground that they were captured within the
territorial waters of that island. She was admitted to the
Digitized by LjOOQIC
596 INTERNATIONAL ARBITRATIONS.
waters of Cura9ao on tbe written declaratioii of ber commander
that she was a ship of war duly commissioned by tbe govern-
ment of the Confederate States. In August she was admitted
to the port of Paramaribo, in Dutch Guiana, and coaled there,
remaining in port eleven days. The Government of the Neth-
erlands subsequently issued orders that no vessel belonging to
either belligerent should be allowed to take in more coal than
would suffice for twenty-four hours' consumption, or to remain
in port longer than f<5rty-eight hours. Before arriving at
Paramaribo the Sumter visited Puerto Gabello, in Venezuela,
and the British island of Trinidad. She remained at the latter
place six days and purchased from private merchants coal and
provisions. Permission to purchase coal from the government
stores was refused. What took place at Trinidad was brought
by Mr. Adams to the attention of Earl Russell on September
30, 1861. Earl Russell replied that the law officers of the
Crown had reported that the conduct of the governor of Trini-
dad was in conformity with Her Majesty's proclamation. The
Government of the United States not only sought to have the
Sumter treated as a pirate, but also complained of the length
of time she was permitted to remain at Trinidad. With a view
to prevent the recurrence of similar complaints, the British
Government, on January 31, 1862, issued orders absolutely
excluding belligerent vessels from the waters of the Bahama
Islands, except in case of stress of weather, or of special leave
granted by the lieutenant-governor. These islands being very
near to the American coast, access to them was of little impor-
tance to the armed vessels of the United States except in stress
of weather, while to vessels of the Confederate States it was of
great importance, the harbors of those States being generally,
though not always, effectively blockaded.
The orders thus issued were, the British Case declared, more
stringent and comprehensive than those of any other neutral
government. The Sumter, after leaving Trinidad, entered in
succession the ports of Paramaribo, in Dutch Guiana; of
San Juan de Maranham, in Brazil, where she remained ten
days; of Port Royal and St. Pierre, in Martinique; and of
Cadiz, where she remained fourteen days. She was four-
teen days in the waters of Martinique, and procured there,
under the written authority of the governor of the island,
a full supply of coal for a cruise across the Atlantic, together
with other supplies. A few days after her arrival the Iro-
quaiSy a man-of-war of the United States, entered Port Royal
Digitized by V^OOQlC
THE GENEVA ARBITRATION. 59*?
harbor, and, finding the Sumter^ complaine<l to the governor
of Martinique of her receiving Frencli protection. The gov-
ernor in reply offered the same hospitalities and facilities
to the Iroquois as were enjoyed by the Sumter. The captain
of the Iroquois was also informed that if the Sumter should
leave port before him he would not be permitted to depart
until twenty-four hours after her sailing. He left immediately
and cruised in the offing with the design of intercepting her,
till the night of November 23, 18()1, when she made her escape.
On January 18, 1862, she arrived at Gibraltar. The authori-
ties observed a neutral conduct in accordance with the Queen's
proclamation. The Sumter^ in accordance with the rule ob-
served throughout the war toward vessels of both belligerents
at all British ports, was refused permission to purchase coal
from the government stores, and she was unable to leave
Gibraltar for want of coal, the consul of the United States
having induced the merchants of the place to refuse to supply
her. On the 12th of February 1862 the United States man-of-
war Tuscarora arrived at Gibraltar and proceeded to coal at
the neutral port of Algeciras. Two other men-of-war soon
arrived, and the Sumter, being unable to escape, was sold at
public auction, after having been deprived of her armament, to
a British resident at Liverpool. The United States consul at
Gibraltar protested against the sale on the ground that it was
"for the purpose of avoiding a capture by the cruisers of the
United States." Complaint as to the sale was also made by
Mr. Adams to Earl Eussell, who replied that British naval
and military officers at Gibraltar had received instructions not
to give any protection to the vessel beyond territorial waters,
thus leaving it open to the vessels of the United States to
capture her and take her into a prize court. She sailed from
Gibraltar on February 7, 1863, and reached Liverpool on the
13th. She remained there till July 3, when she sailed as a
merchant vessel, without armament, and carrying as freight
some heavy ordnance, which could not possibly have been used
on board of her. While in port she was carefully watched, by
order of the British Government, as a precaution lest she
should be in any way armed or equipped for war. She was
wrecked at last in attempting to enter Charleston.
The course pursued by the British Govern-
the""^ir'h^e"* ment in this case was, said the British Case,
adhered to in 1864 in the case of the Confeder-
ate ship Georgia. But it was afterward judged expedient by
the government to prohibit vessels of war belonging to either
Digitized by V^OOQ IC
598 INTERN ATIONAt ARBITRATION'S.
belligerent from being dismantled or sold in British ])ort8;
although, as tlie British Case maintained, it was not the dntj^
of a neutral government to prohibit the sale in its territory of
a ship owned by a belligerent to a neutral purchaser. Under
certain circumstances, as in the case of a ship of war driven
by superior force to take refuge in a neutral port, such a sale
might be liable to be declared void by a prize court of the
other belligerent. But this was a jurisdiction, said the British
Case, exercised by prize courts alone, and the sale, until so set
aside, was valid everywhere, and operated to transfer the
property to the neutral purchaser.
The British Case also referred to the N^aaht^ille, which arrived
at Bermuda on October 30, 1862, having sailed from Charles-
ton on the 26th. A supply of coal from Her Majesty's dock-
yard was refused her. She secured a supply from a private
yard, and on November 21 arrived at Southampton, having
destroyed on her way an American packet ship. On Novem-
ber 22 she went into dock for repairs, and directions were sent
from the foreign office that she " should not be allowed to
equip herself more completely as a vessel of war, or to take in
guns or munitions of war." This measure was the subject of
an expression of satisfaction on the part of Mr. Adams.
From the beginning to the end of the war,
^"^^^i^te^""" said the British Case, Her Majesty's govern-
ment scrupulously observed in respect to ves-
sels entering British ports or waters under the flag of either
belligerent the duties of a neutral power. The United States
cruisers entered the ports and waters of Her Majesty's domin-
ions for coaling and other purposes more frequently than the
vessels of the Confederate States. The impartial neutrality
maintained in these respects by Her Majesty's government
was nevertheless a frequent subject of complaint by the Gov-
ernment of the United States, which continuea to insist that
Confederate vessels ought to have been treated as piratical, or
at least excluded altogether; while the Confederate 8tate.s
complained that the regulations enforced were unequal in
operation, and unduly disadvantageous to a belligerent whose
ports and coasts were under blockade.
The third part of the British Case related to
International Bighte u international rights and duties," and to *'the
and DutiM. , . , -, % -rr
powers which were possessed by Her Britannic
Majesty's government of preventing unlawful equipments, and
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 599
the manner and circumstances in and under which these powers
were exercised durinij: the war." Under this head the British
Case laid down the following general propositions :
'^ 1. A neutral government is bound to exercise due diligence,
to the intent that no place within its territory be made use of
by either belligerent as a base or point of departure for a mili-
tary or naval expedition, or for hostilities by land or sea.
*'2. A neutral government is not, by force of the above-
mentioned obligation or otherwise, bound to prevent or restrain
the sale within its territory, to a belligerent, of articles contra-
band of war, or the manufacture within its territory of such
articles to the order of a belligerent, or the delivery thereof
within its territory to a belligerent purchaser, or the exporta-
tion of such articles from its territory for sale to, or for the
use of, a belligerent,
"3. Nor is a neutral government bound, by force of the above-
mentioned obligation or otherwise, to prohibit or prevent ves-
sels of war in Ibhe service of a belligerent from entering or
remaining in its ports or waters, or from purchasing provisions,
coal, or other supplies, or undergoing repairs therein ; provided
that the same facilities be accorded to both belligerents indif-
ferently; and provided also that such vessels be not permitted
to augment their military force, or increase or renew their sup-
plies of arms or munitions of war, or of men, within the neutral
territory.
"4. The unlawful equipment, or augmentation of force, of a
belligerent vessel within neutral waters being an offense against
the neutral power, it is the right of the neutral power to re-
lease prizes taken by means or by the aid of such equipment
or augmentation of force, if found within its jurisdiction,
*^5. It has been the practice of maritime powers, when at
war, to treat as contraband of war vessels specially adapted
for warlike use and found at sea under a neutral flag in course
of transportation to a place possessed or occupied by a bellig-
erent. Such vessels have been held liable to capture and con-
demnation as contraband on proof in each case that the desti-
nation of the ship was an enemy's port, and provided there
were reasonable grounds for believing that she was intended
to be sold or delivered to or for the use of the enemy.
"6. Public ships of war in the service of a belligerent enter-
ing the ports or waters of a neutral are, by the practice of
nations, exempt from the jurisdiction of a neutral power. To
withdraw or refuse to recognize this exemption without previous
notice, or without such notice to exert, or attempt to exert,
jurisdiction over any such vessel, would be a violation of a com-
mon understanding, which all nations are bound by good faith
to respect.
" 7. A vessel becomes a public ship of war by being armed
and commissioned — that is to say, formally invested by order or
under the authority of a government with the charact-er of a
Digitized by V^OOQ IC
600 IKtEttNATIONAL AUBITRAT10K8.
sliip employed in its naval service and forming part of its
marine for purposes of war. There are no general rnles which
prescribe how, where, or in what form the commissioning mast
be effected so as to impress on the vessel tlie character of a
public ship of war. What is essential is that the appointment
of a designated officer to the charge and command of a ship
likewise designated be made by the government, or the proper
department of it, or under authority delegated by the govern-
ment or department, and that the charge and command of the
ship be taken by the officer so appointed. Customarily a ship
is held to be commissioned when a commissioned officer ap-
pointed to her has gone on board of her and hoisted the colors
appropriated to the military marine. A neutral power may
indeed refuse to admit into its own ports or waters as a public
ship of war any belligerent vessel not commissioned in a
specified form or manner, as it may impose on such admission
any other conditions at its pleasure, i)rovided the refusal be
applied to both belligerents indifferently; but this should not
be done without reasonable notice.
" 8. The act of commissioning, by which a ship is invested
with the character of a public ship of war, is, for that purpose,
valid and conclusive, notwithstanding that the ship may have
been at the time registered in a foreign country as a ship of
that country, or may have been liable to process at the suit of
a private claimant, or to arrest or forfeiture under the law of a
foreign state. The commissioning power, by commissioning
her, incori>orates her into its naval force; and by the same act
which withdraws her from the operation of ordinary legal proc-
ess assumes the responsibility for all existing claims which
could otherwise have been enforced against her.
"9. Due diligence on the part of a sovereign government
signifies that measure of care which the government is under
an international obligation to use for a given purpose. This
measure, where it has not been defined by international usage
or agreement, is to be deduced from the nature of the obliga-
tion itself, and from those considerations of justice, equity, and
general expediency on which the law of nations is founded.
" 10. The measure of care which a government is bound to
use in order to prevent within its jurisdiction certain classes
of acts, from which harm might accrue to foreign states or
their citizens, must always (unless specifically determined by
usage or agreement) be dependent, more or less, on the sur-
rounding circumstances, and can not be defined with precision
in the form of a general rule. It would commonly, however,
be unreasonable and impracticable to require that it should
exceed that which the governments of civilized states are
accustomed to employ in matters concerning their own security
or that of their own citizens. That even this measure of obli-
gation has not been recogiii;«ed in practice might be clearly
shown by reference to the laws in fon^e in the principal coun-
tries of Europe and America. It wonld be enough, indeed, to
refer to the history of some of these countries during recent
Digitized by V^OOQlC
THE GENEVA ARBItRATION. 601
periods for proof that great and enlightened states have not
deemed themselves bound to exert the same vigilance and
employ the same means of repression, when onterprises pre-
pared with their own territories endangered the safety of
neighboring states, as they would probably have exerted and
employed had their own security been similarly imperiled.
" In every country where the Executive is subject to the laws,
foreign states have a right to expect —
"(fl) That the laws be such as in the exercise of ordinary
foresight might reasonably be deemed adequate for the repres-
sion of all acts which the government is under an international
obligation to repress.
'*(&) That, so far as may be necessary for this purpose, the
laws be enforced and the legal powers of the government exer-
cised.
*<But foreign states have not a right to require, where such
laws exist, that the Executive should overstep them in a par-
ticular case in order to prevent harm to foreign states or their
citizens; nor that, in order to prevent harm to foreign states or
their citizens, the Executive should act against the persons
or property of individuals, unless upon evidence which would
justify it in so acting if the interests to be protected were its
own or those of its own citizens. Nor are the laws or the mode
of judicial or administrative procedure which exist in one coun-
try to be applied as constituting a rule or standard of com-
parison for any other country. Thus, the rules which exist in
Great Britain as to the admission and probative force of various
kinds of testimony, the evidence necessary to be produced in
certain cases, the questions proper to be tried by a jury, the
functions of the Executive in regard to the prevention and
prosecution of offenses, may differ, as the organization of the
magistrature and the distribution of authority among central
and local oflBcers also differ, from those which exist in France,
Germany, or Italy. Each of these countries'has a right, as well
in matters which concern foreign states or their citizens as in
other matters, to administer and enforce its own laws in its
own forum, and according to Its own rules and modes of pro-
cedure; and foreign states can not justly complain of this
unless it can be clearly shown that these rules and modes of
procedure conflict in any particular with natural justice, or, in
other words, with principles commonly acknowledged by civil-
ized nations to be of universal obligation.
**In connection with the foregoing propositions are to be
taken the three rules stated in Article *V1. of the treaty, and
accepted by Her Britannic Majesty's government in the man-
ner expressed in that article."
The case of a vessel dispatched from a
Chaneter of Amer- jj^^^pj^] p^^j^ ^ ^j. f^^^ ^^^ ^^g^ ^f ^ belligerent,
lean Complaints. «, , . , , . . '
after having been prepared withm the neutral
territory for warlike use, might, said the British Case, be
Digitized by LjOOQIC
602 INTERNATIONAL ARBITRATIONS.
regarded from two different points of view. The ship itself
might be regarded merely as an implement of war and an
article of contraband, or the preparation and dispatch of the
ship might be viewed as the commencement of a hostile
expedition. The difficulty in drawing the line between these
two classes of transactions was great in theory and still greater
in practice; and it was "enhanced to the utmost during the
civil war by tlie ingenuity and audacity of American citizens
who w^ere engaged in carrying on hostilities against the Govern-
ment of the United States, and who were desirous of availing
themselves for this purpose of the shipbuilding and manu-
facturing resources of Great Britain." The difficulties encoun-
tered by Her Majesty's government in this regard finally led
to an enlargement of the municipal law on the subject beyond
what had "hitherto been deemed necessary in any other
country." The acts of which the United States complained
were, said the British Case, of a class which had not commouly
been made the object of prohibitory legislation and which had
not, perhaps, when the war began, been directly prohibited
except in the United States and Great Britain. Laws were
not made till the necessity for them had arisen. The necessity
for neutrality laws early arose in the United States, first in
the war that began in 1793 between the French Eepublic on
the one hand and Great Britain and the Netherlands on the
other; and again in the war which broke out in 1810 between
Spain (afterward assisted by Portugal) and the Spanish colo-
nies in America. The laws passed to meet the exigencies which
then arose had been in force for many years, and had always
been held by the legislative authority in the United States
to be adequate for their purpose; yet vessels had "from time
to time been fitted out and armed within the United States to
cruise and commit hostilities against nations with which the
United States were at peace," and <* severe losses and injuries"
had been "inflicted on those nations by the depredations of
such vessels." Moreover, it had " been constantly held and
maintained by the United States" that the powers possessed
by the government to prevent the fitting out of vessels within
the national territory were such only as could be shown to be
vested in the government by the Constitution and laws for the
time being in force, and that, if these powers had been bona
fide exercised, the United States were not responsible for losses
inflicted by vessels fitted and armed within their territories.
Digitized by LjOOQIC
THl^ GENEVA ARBITRATION. 603
It had also been the practice of the executive authority in
enforcing the laws to act upon information afforded by foreign
consuls, or by other persons interested in preventing the acts
prohibited by law, and to require the persons furnishing such
information to produce evidence in support of it.
The British foreign-enlistment act of 1819
British Laws, was, said the British Case, modeled on the
neutrality act passed by the United States in
the preceding year; but, as regarded the matters in question,
it was "more stringent, rigorous, and comprehensive" than
the American law. During the forty-two years that elapsed
between its passage in 1819 and the year 1862 only one case
founded on an alleged violation of its provisions appeared to
have been brought to trial before a court. It resulted that
the law of Great Britain, as it existed at the time of the civil
war in the United States, was such as in the exercise of due
foresight might reasonably be deemed adequate for enabling
the British Government to perform its neutral obligations.
But, in connection with the terms of the law, the following
principles of the constitutional law of Great Britain were,
said the British Case, to be considered :
" 1. The Executive can not deprive any person^ even tempo-
rarily, of the possession or enjoyment of property, nor subject
hira to bodily restraint unless by virtue and in exercise of a
power created and conferred on the Executive by law.
"2. No person can be visited with a forfeiture of property,
nor subjected to any penalty, unless for a breach of a law, nor
unless such breach can be proved to the satisfaction of a com-
petent legal tribunal, by testimony given on oath in open court,
subject to the rules of procedure established here for the due
administration of justice. Every witness is liable to be cross-
examined by the accused party or his advocate.
" 3. No person can be compelled to answer a question put to
him in a court of law if the question is such that, by answer-
ing it, he would incur the risk of a penalty or of a prosecution
before a criminal tribunal. Statements on hearsay are not
admissible as evidence.
*' These general principles apply equally, whether the object
sought to be attained be the prevention or punishment of an
injury to the state, or to any citizen of the state, or to any
other person or persons whomsoever.
" It may be further observed that, during the whole period
to which the questions submitted to the arbitrators relate,
every case of alleged infringement of the British foreign- enlist-
ment act brought to trial within the United Kingdom was
required to be proved to the satisfaction of a jury."
Digitized by LjOOQIC
604 INTERNATIONAL ARBITRAftONd.
The blockiide of the Confederate ports, said
Contraband and ^j^^ British Case, maintained for a long time
Blockade Annning. '
very imperfectly, along a vast extent of coast,
offered extraordinary inducements to ]iersons to attempt to
elude it. For such attempts it was found profitable to con-
struct vessels of a peculiar class; and recourse was had for
this purpose to the shipyards of Great Britain, which were
accustomed to supply shipping to purchasers of all countries.
Her Majesty's government, though aware that the blockade
was for a considerable time not completely effective, re<»gnized
it from the first to the last. British subjects were warned that
attempts to trade with the blockaded ports would subject
them to the risk of the capture and confiscation of their prop-
erty. The government neither did nor could prohibit sub-
jects or persons within its dominions from engaging in trade,
or from selling or constructing or x)urchasing vessels adapted
for that purpose. By international law the right of blockade
and the enforcement of it belonged to the belligerent, and not
to neutral powers; and it followed that to the blockading
])ower must be left the task of making the blockade effective.
At all the principal seaports of Great Britain, said the Brit-
ish Case, the United States maintained consuls or consular
officers. It was the duty of these officials to keep a watchful
eye on whatever might tend to endanger the security or inter-
ests of the United States, and to communicate their informa-
tion to the minister of the United States at London. In the
course of the years 1861, 1862, 1863, 1864, and 1865 many rep-
resentations were addressed by Mr. Adams to Her Majesty's
government respecting vessels which he believed to be intended
to be used as privateers or commissioned ships of the Confed-
erate States in cruising and carrying on war against the United
States. To complaints of traffic carried on with blockaded
ports, or in articles contraband of war, it was answered, on the
part of Her Majesty's government, that these were enterprises
which Her Majesty's government could not undertake to pre-
vent, and the repression of which belonged to the United
States as a belligerent i)ower. Allegations, on the other hand,
that vessels were being prepared for cruising or carrying on
war were immediately referred to the proper officers of the
government at the several localities for careful investigation
and inquiry. If, on such in vestigation,lt jvppeared by sufficient
prhna facie evidence that any illegal svct was being or had been
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 605
committed, the vessels were forthwith seized aud proceedings
iustitnted according to law; if not, the result was at once
communicated to Mr. Adams, and directions were given to the
local authorities to watch closely the vessels as to which his
suspicious had been aroused.
The British Case then took up in detail the
AeUan on Spedflo yj^-jQ^g eases to which Mr. Adams called atten-
Coxuplaints.
tion. The first was that of the steamship Ber-
muda, which was intended for a blockade runner, and which
wiis captured and condemned by the United States on her
second voyage, after she had once succeeded in running the
blockade at Savannah. The vessels to which Mr. Adams next
called the attention of Her Majesty's government were the
OretOy or the Florida, and the Alabama, originally known as
No. 290. In November 1862 Mr. Adams made inquiry as to
a vessel then in course of construction at Glasgow; it was in
fact being built for Her Majesty's government. The next case
was that of the Georgiana. Investigations were made and the
result was communicated to Mr. Adams. The vessel was a
blockade runner, and sailed from Liverpool on January 21,
1863, with a general cargo for IN^assau, and thence for Charles-
t<m. In attempting to enter the latter harbor she was chased
and fired upon by the blockading vessels, and was run aground
and wrecked. On March 26, 1863, Mr. Adams called the atten-
tion of Earl Bussell to a vessel called the Phantom, and on
June 3, 1863, to a vessel called the Southerner, which were
alleged to be fitting out as privateers. Mr. Adams acknowl-
edged the readiness which Her Majesty's government mani-
fested in making the investigations he desired, and expressed
satisfaction with the assurances of its determination to main-
tain a close observation of future movements of an unusual
character that might justify suspicions of evil intent. The
Phantom was believed ultimately to have been used as a block-
ade rnnuer. She was never used for war. The Southerner,
on August 9, 1863, sailed from Liverx)ool to Alexandria, in
Egypt, and was employed in the Mediterranean in the convey-
ance of cotton and passengers. The next case was that of the
Alexandra, which was brought by Mr. Adams to the attention
of Earl Eussell on March 31, 1863. On April 5 the Alexandra
was, pursuant to the directions of Her Majesty's government,
seized by the officers of the customs at Liverpool under the
seventh section of the foreign-enlistment act. The case was
Digitized by LjOOQIC
606 INTERNATIONAL ARBITRATIONS.
tried in the court of exchequer before the lord chief baron
and a special jury. A verdict having been rendered in favor
of the persons claiming to be the owners of the ship, the Crown
sought to obtain a new trial. This application failed, as also
did a subsequent etfort to prosecute an api)eal before the conrt
of exchequer chamber. The costs and damages, amounting
to £3,700, were paid by the Crown, as the defeated party, to
the claimants of the ship. During the whole course of these
proceedings up to April 24, 18G4, the Alexandra remained under
seizure, in the possession of the officers of the customs. At
the end of that time, the Executive having ne legal power to
detain her, she came again into possession of the persons claim-
ing to be her owners, by whom she was sold to a merchant at
Liverpool. Her new owner changed her name to The Mary,
and after certain alterations she sailed from Liverpool for
Bermuda, and thence to Halifax. On her arrival at Halifax
Mr. Seward informed the British legation at Washington that
it was supposed that she was to be armed and equipped at
Halifax for the Confederate government. The lieutenant-
governor of Nova Scotia was immediately advised to that
effect. In November 1864 The Mary returned from Halifax to
Bermuda and then proceeded to Nassau, where proceedings
were begun against her for having taken on board at Bermuda
certain packages the contents of which suggested that the
design existed to employ her in the naval service of the Con-
federate States. On May 30, 1865, these proceedings were
terminated by her release. The war was then over. The
exx>ense of the colonial government incurred by the seizure
amounted to upward of £300.
The British Case next took up the case of the ironclad rams
El Tousson and El Monassir, commonly known as " Lairds'
ironclads.'' The history of these vessels has been stat^ in
the summary of the American Case. Orders to seize them
were issued October 9, 1863, and they remained under seizure
till May 1864, when they were sold to Her Majesty's govern-
ment for the sum of £220,000. The evidence which the gov-
ernment had up to that time been able to obtain was, said
the British Case, so imperfect as to make the event of a trial
doubtful; and in agreeing to the purchase Her Majesty's gov-
ernment was mainly actuated by a desire to prevent by any
means within its power, however costly, vessels of so formid-
able character, constructed in a British port, from passing
directly or indirectly into the hands of a belligerent.
Digitized by V^OOQ IC
THE GENEVA ARBITRATION. 607
The next case taken up by the British Case was that of the
Ganton, or Pampero. This vessel was brought to Earl Rus-
sell's attention by Mr. Adams in a note of October 17, 1863.
By the end of November inquiries directed by the government
had led to the production of some evidence that she was in-
tended for the Confederate service. On December 10 she was
seized by the collector of customs at Glasgow, and in April
1864, no defense having been made, was declared forfeited.
She remained under seizure till October 1865, when she was
given up to her owners, the war having long since been ended.
In 1864, said the British Case, representations were made by
Mr. Adams to Earl Russell respecting two vessels named the
Amphion and the Hawk; and in 1865 respecting three others,
the Virginiay the Louisa Ann Fanny j and the Hercules. In none
of these cases were any reasonable grounds of suspicion found
upon examination to exist, and none of the vessels was in fact
armed or used for the purposes of war.
After this review of the cases (except the
^**^**hi^ti**"'" ^^o^^^^ and the Alabama) brought before Her
Msyesty's government, the British Case de-
clared :
" 1. That in every case directions were given, without the
least delay, for investigation and inquiry on the spot by the
proper of&cers of government; and these officers were ordered
to keep a watchful eye on the suspected vessel; and the direc-
tions and orders so given were executed.
^^ 2. That in some cases the attention of the government had
been directed, before the receipt of any communication from
Mr. Adams, to vessels as to which there appeared to be ground
for suspicion.
<' 3. That as soon as any evidence was attained it was sub-
mitted without delay to the law officers of the Crown, and
they were called upon to advise as to the proper course of pro-
ceeding.
^^ 4. That in every case in which reasonable evidence could
be obtained the vessel was seized by the officers of the govern-
ment, and proceedings were instituted against her in the proper
court of law. By reasonable evidence is understood testimony
which, though not conclusive, offered nevertheless a reason-
able prospect that the government might be able, when the
time for trying the case should arrive, to sustain the seizure in
a court of law.
"5. That in several of the cases in which a seizure was made
the government found itself unable, or uncertain whether it
would be able, to sustain the seizure by sufficient evidence, and
was under the necessity of either releasing the vessel and pay-
ing the costs of the trial and detention, or of purchasing her at
the public expense.
Digitized by LjOOQIC
608 INTERNATIONAL ARBITRATIONS.
"6. That ill everyone of the cases euuinerated either the in-
formation furnished to the government proved to be erroneous,
and the supposed indlida of an unlawful intention to foe afoseut
or deceptive, or this intention was defeated or abandoned by
reason of the measures taken and the vigilance exercised by
Her Majesty's government.
" 7. That it is easy to infer special adaptation for war from
X>eculiarities or supposed j^eculiarities of construction which
are really eciui vocal; and such inferences are liable to be falla-
cious, especially in cases where the vessel is constructed with
a view to some employment which, though commercial, is out
of the ordinary course of commerce.''
In order to exemplify the anxiety of Her
^® ^^!^f^^*** Majesty's government to avoid anything that
might be thought to compromise its neutrality,
the British Case referred to the case of the Anglo-Chinese
flotilla. In March 18C2 the Chinese Government authorized
Mr. Lay, the inspector-general of Chinese customs, to purchase
a steam fleet for the Emperor's service. To this end Mr. Lay
entered into an agreement with Captain Osborn, of the British
navy, to take command of the fleet, and Her Majesty's gov-
ernment gave permission to enlist oflUcers and men for the
service. In September 1803 Captain Osborn arrived in China
with the flotilla, consisting of six vessels of war and two other
vessels. Differences having arisen as to the conditions under
which Captain Osborn was to hold his command, he suggested
that he would turn over the ships to the Chinese Government.
The British minister at Peking objected to this course, on the
ground that Her Majesty's government would not have con-
sented to the organization of the squadron unless on the under-
standing that it* was to be placed under the orders of an officer
in whose prudence and high character they had full confidence;
and he also reported to Her Majesty's government that the
ships were not such as the Chinese could manage, and that it
would not be safe to sell them on the coast, as they might fall
into the hands of hostile daimios in Japan, or be bought for
employment as Confederate cruisers in those seas. The min-
ister of the United States at Peking was also apprehensive as
to the latter contingency. It was subsequently arranged to
send part of the flotilla to England and to take the other part
to Bombay, and to sell them all on account of the Chinese Gov-
ernment. Captain Osborn took four of the vessels to Bombay
and the rest to England. Orders were, however, sent to Bom-
bay to permit one of the vessels there, which was a dispatch
Digitized by VjOOQ IC
THE GENEVA ARBITBATION. 609
T)oat, to be sold, care being taken to prevent lier from being
equipped as a vessel of wai*, or sold to either of the belligerent
parties in America; but the sale did not take place. The other
three vessels at Bombay were ordered to be retained. Of the
three vessels sent to England, one, which was a store ship, was
sold. The other three vessels, which were men-of-war, were
retained until the objections to their sale might be removed,
the expense of their detention being defrayed by Her Majesty's
government. After the close of the civil war in the United
States the Government of Egypt purchased the three vessels
which were detained in England. Of the four vessels at Bom-
bay, the Indian Government purchased two. The vessels
altogether brought £103,020 less than the value at which they
were estimated when they left China. This sum was paid by
Great Britain to the Chinese Government. Sir Frederick
Bruce, who was at that time British minister at Peking, writing
in December 1865 from Washington, to which place he had been
transferred, said that there was no doubt that agents of the
Confederate government were on the lookout to purchase the
more powerful vessels of the squadron from the Chinese; and
Mr. Adams, in a note to Lord Clarendon of December 28, 1866,
expressed the high sense entertained by the Government of
the United States of the friendly proceedings of Sir Frederick
Bruce, in China, in regard to the disposition of the vessels of
the flotilla.
Five parts (IV., Y., YI., VII., and VIII.) of
The "Florida," "Ala- ^]j^ British Case were devoted to an examina-
iaid"Bheiua^ah!" ^*^^ ^^ ^^^ cases of the Florida, the Alabamaj
the Oeorgiaj and the /Shenandoah. The facts
in these cases are discussed elsewhere. The conclusion at
which the British Case arrived was that, of the four vessels in
question, two — the Shenandoah and the Georgia — were never, in
any manner or degree, within the dominions of Her Majesty,
fitted out, armed, or equipped for war, or specially adapted
to warlike use; nor was any information respecting them con-
veyed to Her Majesty's government by the minister or the
consular of&cers of the United States, nor did any come to
the knowledge of that government, till they had respectively
departed from Her Majesty's dominions. The other two ves-
sels— the Alabania and the Florida — though suitable by their
construction for vessels of war, were not armed for war till
they had departed from British jurisdiction and had arrived
6627 39
Digitized by LjOOQIC
610 INTERNATIONAL ARBITRATIONS.
at places remote from and out of the control of Her Majesty's
government, nor till they had passed into the possession and
control of the Confederate government, through the latter's
agents. The crews of all the four vessels, though composed
partly of British subjects who had been induced by promises
of reward to take service when at a distance from England,
were actually enlisted on the high seas or elsewhere out of the
jurisdiction of Her Majesty's government; tte crew of the
Florida was chiefly enlisted in a port of the Confederate
States, which she entered and lay in before engaging in any
operation of war.
In conclusion (Part X.) the British Case con-
XMDiiig of "Due tended that there was no ground on which
'^*^***"®®" the United States could maintain a claim for
pecuniary indemnity. It had been seen that Her Majesty's
government, not content with performing its recognized inter-
national obligations, had on more than one occasion over-
stepped them, and had on two occasions voluntarily incurred a
large expenditure iu order to prevent vessels armed or built
for war in Great Britain from passing into belligerent hands.
On the other hand, a charge of injurious negligence on the
part of a sovereign government, in the exercise of any of the
powers of sovereignty, must be sustained on strong and solid
grounds. The general assumption that such powers were ex-
ercised with good faith and reasonable care ought to subsist
until it had been displaced by proof to the contrary. It was
not enough to show that a government had acted on an opin-
ion from which an arbitrator could be induced to dissent; or
that a judgment pronounced by a court of competent jurisdic-
tion, and acted upon by the Executive, was tainted with error;
or that there had been some defect of judgment or penetra-
tion, or somewhat less than the utmost possible promptitude
and celerity of action ; or that there had been some delay or
omission occasioned by mere accident; or that an act had been
done which it was the duty of the government to prevent On
the contrary, it was necessary to show that there had been ''a
failure to use, for the prevention of an act which the govern-
ment was bound to endeavor to prevent, such care as gov-
ernments ordinarily employ in their domestic concerns, and
may reasonably be expected to exert in matters of interna-
tional interest and obligation." These considerations, it was
said, applied with especial force to nations whose institutions
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 611
were free, and in which the government was bound to obey
and could not dispense with the law. Moreover, there had
been on the part of the United States an extraordinary re-
missness in employing their naval forces in the capture of the
vessels of whose acts they complained; and it was not reason-
able ^^ that a belligerent state, alleging itself to be aggrieved
by some imputed negligence of a neutral government, should
on that account claim indemnity from the neutral for losses in
the course of warlike operations which it had not actively and
diligently exerted itself to prevent and arrest."
After the filing of the Gases a controversy
Counter Caies. arose which, for a period of several mon ths, ren-
dered the continuance of the arbitration doubt-
ful. The details of this controversy, which related to the
"indirect claims" submitted by the United States, are given
hereafter. The contracting parties, however, in due time filed
their Counter Oases; the Government of Great Britain doing
so with the reservation that its action was not to prejudice
its x>osition that the indirect claims, which were not discussed
in its Counter Case, were not within the jurisdiction of the
tribunal.
The Counter Case of the United States,
encan nnter ^Yiich was prepared by the agent and coun-
sel of the United States at Paris, was very
brief and added little to the Case in the way of argument,
though it was accompanied with numerous documents. In re-
gard to the assumption in the British Case that the claims of
the United States were to be confined to those growing out
of the acts of the Florida^ the Alabamay the Georgia^ and the
Shenandoahj it stated that the claims growing out of the acts
of the other vessels mentioned in the American Case formed
part of the claims generically known as the Alabama claims,
and were enumerated in certain volumes which were printed
by order of the Senate under the title of " Claims of the United
States against Great Britain." These volumes were not only
submitted with the Case of the United States, but were, it was
believed, in the possession of the foreign office in London
before Her Majesty's high commissioners received their in-
structions; and they were on the table of the joint high com-
mission during (he negotiations which preceded the conclusion
of the treaty.
Digitized by LjOOQIC
612 INTERNATIONAL ARBITRATIONS.
As to the averment in several places in the
****"te'AMto^'" ^"^®^ ^^^ ^^^^ *^® ^^^ complained of were
committed by American citizens, the Oounter
Case of the United States asked the tribunal *^ to take note
that the ^American citizens' referred to were criminals in the
eye of American law at the very time when they were ele-
vated to the rank of recognized belligerents against the
United States by the act of Her Majesty's government." It
would therefore seem impossible "to impute to the United
States any consequences of responsibility«for the conduct of
the persons thus described as 'American citizens.'"
Moreover, said the Oounter Case, the British
eet of Com ^^^^ seemed to concede that a belligerent who
had wronged a neutral by violating its sover-
eignty and by forcing it to take part, indirectly, in a war,
might, nevertheless, by some subsequent act (such as commis-
sioning, outside the jurisdiction of the neutral, a vessel of war
unlawfully constructed within its jurisdiction), deprive the
neutral of the right to take cognizance of the original offense.
The United States suggested that such a right could not be
lost by the mere act of the offending belligerent. The conces-
sion that it could be so lost appeared to involve a claim that
vessels of rebels recognized as belligerents possessed an exemp-
tion from national jurisdiction, which should be accorded, if at
all, only to vessels of recognized sovereign powers, to which
political representations could be made in case of violations of
neutral sovereignty, and to ignore undoubted prerogatives
of the Crown to exclude armed vessels from the national
ports.
As to the operation of the words "due dili-
"Dne Diiigenoe." gen CO," the British Case, said the Counter Case
of the United States, set up as a measure of
care a standard which fluctuated with each succeeding govern-
ment in the circuit of the globe, viz, "such care as governments
ordinarily employ in their domestic concerns." The argument
of the British Case required a neutral to establish, as a founda-
tion for a claim for compensation, an absence of care "nearly
equivalent to willful negligence." * The United States did not
conceive that the law of nations tolerated the proposition that
1 See discuBsion of the subject of negligence in Bernard's Neutrality of
Great Britain daring the American Civil War^ 385.
Digitized by LjOOQIC
THE GENEVA ARBITBATION. 613
belligerents were required to sabmit without redress to the
injuries resulting from neutral negligence till it reached the
extremity suggested. The British Case seemed also to narrow
the international duties of a government to the exercise of the
restraining powers conferred upon it by municipal law, and to
overlook the obligation of the neutral to amend its laws when
they were insuflQcient.
As to the reference made in the British Case
Aeti of Partiality, to ^' armed ships fitted out and sent to sea
from ports in the Confederate States," during
and after May 1861, the Counter Case of the United States
said that there was no insurgent vessel preying on the com-
merce of the United States when the Florida or the Alabama
escaped from Liverpool. As to the course of other maritime
X)owers, it was pointed out that such powers recognized the
insurgents as lawful belligerents only after Great Britain,
the principal maritime power, had elevated them to that rank;
and it was denied that, having regard to the great disparity
of numbers between the vessels of the United States and
those of the insurgents, the United States enjoyed, as the
British Case claimed, to an equal extent with the insurgents
the hospitalities of the British ports, or that, without regard
to that disparity, those hospitalities were extended with an
impartial neutrality to each.
The Counter Case of the United States chal-
^^TatiOT^*^" ^^^^^ ^^® statement of the British Case that
the acts of which the United States com-
plained belonged to a class which had not commonly been
made the object of prohibitory legislation. Such acts appeared,
it was maintained, upon evidence before the tribunal, among
which was the report of the royal commission on the subject
of neutrality, to have been widely made the subject of positive
legislation, nor was there any country except Great Britain, so
far as the United States were advised, in which it had been
assumed that proceedings under the municipal or local laws
were the measure of neutral obligations toward other govern-
ments. And it was "emphatically" denied that the prohibi-
tory laws of the United States had, as was asserted in the
British Case, " been infringed by acts much more flagrant than
any of those now charged against Great Britain." With ref-
erence to the statement in the British Case that the foreign-
enlistment act of 1819 was more "stringent, rigorous, and
Digitized by VjOOQ IC
614 INTERNATIONAL ARBITRATIONS.
comprehensive" than the neutrality laws of the United States,
the Counter Case of the IJuited States made the following
comparison :
'' 1. Enlistments of British subjects only are made unlawful
by the British act; the American act, on the contrary, makes
all enlistments within the neutral jurisdiction unlawful, except
naval enlistments of subjects of the enlisting belligerent made
on the deck of a vessel of the belligerent while within the
neutral waters.
"2. By executive and judicial construction, the words
* equip,' 'fitted out,' and 'furnish' have received a much
broader meaning in America than in Great Britain, as the
United States have explained in their Case.
''3. The tenth and eleventh sections of the American act,
commonly known as the bondiug clauses, are admitted not to
be in the British act. And it is also admitted that these
clauses are intended to be preventive, not punitive. ^
''4. The eighth section of the United States act is also
omitted in the English act. This section, the practical opera-
tion of which is explained in the case of the United States, is
regarded by them as by far the most efficient part of the act
for the prevention of violations of neutrality."
Nor did the United States understand, said
AottoKm Amerioan ^^^ Counter Case, that it was true that "alle-
Complaint.
gations that vessels were being prepared for
^ The '' bonding clauses '^ are now incorporated in the following sections
of the Revised Statutes of the United States:
"Sec. 5289. [Act of 1818, sec. 10.] The owners or consignees of every
armed vessel sailing out of the ports of the United States, belonging
wholly or in part to citizens tliereof, shall, before clearing out the same,
give bond to the United States, with sufficieut sureties, in double the
amount of the value of the vessel and cargo on board, including her arma-
ment, conditioned that the vessel shall not be employed by such owners
to cruise or commit hostilities «again8t the subjects, citizens, or property
of any foreign prince or state, or of any colony, district, or people, with
whom the United States are at peace.
"Sec. 5290. [Act of 1818, sec. 11.] The several collectors of the cus-
toms shall detain any vessel manifestly built for warlike ])urp08e8, and
about to depart the United States, the cargo of which principally consists
of arms and munitions of war, when the number of men shipped on board,
or other circumstances, render it probable that such vessel is intended to
be employed by the owners to cruise or commit hostilities upon the sub-
jects, citizens, or property of any foreign prince or state, or of any colony,
district, or people with whom the United States are at peace, until the
decision of the President is had thereon, or until the owner gives such
bond and security as is required of the owners of armed vessels by the
preceding section.''
Digitized by LjOOQIC
THE GENEVA ARBITRATION, 615
crnising or carrying on war'' were in all cases followed by
seiznre of the vessels, when sufficient prima facie evidence of
the illegal purpose was famished. " They understand," said
the Coanter Case, '< exactly the contrary to have been the case;
that until the opinion of the law officers of the Crown, given
on the 29th day of July 1862 (the day of the escape of the
Alabama)^ all branches of Her Majesty's government held that
it was necessary, not only to establish a preparation for cruis-
ing or carrying on war, but also an actual arming of the offend-
ing cruiser in a British port, in order to justify seizure, and
that this prevailing opinion was afterward sustained in effect
by the courts of England in the Alexandra case, which is still
the unreversed judicial construction of the act of 1819."
In conclusion, the American Counter Case
Conoliidiiig Canader- presented thefollowing general considerations :
" 1. Both parties contemplate that the United
States will endeavor to establish in these proceedings some
tangible connection of cause and effect between the injuries for
which they ask compensation and the 'acts committed by the
several vessels,' which the treaty contemplates are to be shown
to be the fount of those injuries.
"2. The tribunal of arbitration being a judicial body, in-
vested by the parties with the functions necessary for deter-
mining the issues between them, and being now seized ot the
substance of the matters in dispute, will hold itself bound by
such reasonable and established rules of law regarding the
relations of cause and effect as it may assume that the parties
had in view when they entered into their engagement to make
this reference.
"3. Neither party contemplates that the tribunal will estab-
lish or be governed by rules in this respect which will either
on the one hand tend to release neutrals from their duty to
observe a strict neutrality, or, on the other hand, will make a
course of honest neutrality unduly burdensome."
The Counter Case of Great Britain, a com-
BxitLBh Coimtar Case, preheusive document of -about the same length
as the British Case, was, as has heretofore been
stated, filed without prejudice to the position assumed by Her
Majesty's government in the controversy then pending in rela-
tion to the '* indirect claims." While declaring that Her Majes-
ty's government was entitled to assume that the claims which
it would have to meet would be found to relate exclusively to
the Florida, the Alabama, the Georgia, and the Shenandoah, the
British Counter Case called attention to the fact that none of
Digitized by LjOOQIC
616 INTERNATIONAL ARBITRATIONS.
the other vessels on account of which the United States had in
its Case advanced claims was alleged to have been in any
manner armed, fitted oat, or equipped for war within British
territory. Three of them were said to have been captured,
armed, and employed as tenders by the officer commanding the
Florida during the cruise of that vessel, and one by the com-
mander of the Alabama. As to the Sumter and the NaehviUej
it was alleged only that they received hospitalities in British
ports. The Tallahassee and the Chickamaugaj though origi-
nally built in England, were employed in carrying cargoes to
and from ports of the Confederate States, and were converted
into cruisers by the Confederate government. As to the Retri-
butiorij it was merely alleged that her commander contrived on
two occasions to carry a prize captured by him on the high
seas into the territorial waters of a British island, and there to
dispose of or destroy the cargo. Besides these nine vessels
there had, said the British Counter Case, been introduced into
the list of claims losses for captures by two vessels named the
Boston and tbe Sallie, which were not mentioned in the Case,
and expenses said to have been incurred in the pursuit of a
third, the Chesapeake, as to which the Case of the United States
was equally silent. Her Majesty's government presumed that
this had been done through imadvertence.
After certain observations upon some of the
limits of Neutral • <■ i ^ a-, »
j^ evidence, and upon some of the opinions of
publicists, introduced by the United States,
as possibly being affected by partisanship or bias, the British
Counter Case proceeded to consider the propositions laid down
in the Case of the United States on the subject of neutral duty.
The British Government could not, it was said, admit without
very material qualifications the proposition that a neutral was
obliged to enforce its municipal laws, proclaraatioTis, and exec-
utive orders, though the belligerents might, if they thought
fit to do so, ask for any of these things; nor could it admit
as generally true the proposition that a belligerent power
had a right to call upon a neutral state to make changes in
its domestic legislation. Great Britain adhered to the three
rules of the treaty, and was ready to discuss their construc-
tion; but it could not admit the assumption ^^that whatever
is or was prohibited by British law or by the orders or proc-
lamations of the British Government ought, as against Great
Britain, to be held to be x)rohibited by the law of nations."
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THE GENEVA ARBITRATION. 617
The law of nations was ^^to be gathered, not from British
statutes or ordinances, but from the general consent of na-
tions, evidenced by their practice;'' and those statutes and
ordinances could be apx)ealed to only for the purpose of prov-
ing that the government was armed <^with sufficient power
to discharge its international duties, and not for the pur-
X>ose of extending, any more than of restricting, the range
of those duties." The British Government, said the Counter
Case, agreed that where appreciable injury had been directly
caused by the violation of a clearly ascertained national duty,
suitable reparation should be made to the injured party, but
not otherwise. Nor could Great Britain assent to the doctrine
that the default of a neutral power was not limited to the acts
done or omitted to be done on its part, within its own terri-
tory, but was to be deemed a continuing default, or series of
defaults, during the whole or some part of the subsequent
proceedings of the offending vessel beyond its jurisdiction.
And in determining the question of default or culpable negli-
gence, it should be kept in view that there would not be found
<<in text-books of acknowledged authority anterior to the civil
war,'' or "in the general practice of maritime nations," "any
proof or acknowledgment of a duty incumbent on neutral
governments to prevent their citizens or subjects from supply-
ing belligerents with ships adapted for warlike use," or " any
distinction drawn in this respect between the sale and delivery
of a vessel built to order and that of a vessel not built to
order."
With respect to the admission of belligerent
^^^^uf^ta!^ ^^ ships into neutral ports, the British Counter
Case maintained that it was within the abso-
lute discretion of the neutral government either to refuse admis-
sion or to grant it, and to "extend to vessels so admitted all
the ordinary hospitalities of a friendly port;" "provided only
that the same facilities be offered to both belligerents indiffer-
ently, and that such vessels be not permitted to augment their
military force, or increase or renew their supplies of arms or
munitions of war, within the neutral territory." No restric-
tions whatever, it was contended, were required to be placed
on purchases of provisions, coal, or any supplies other than
arms or munitions of war. So, also, belligerent ships might be
permitted to repair and refit, or to bring in prizes, or even to
sell them, though there could be no condemnation of them in
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618 INTERNATIONAL ARBITRATIONS.
the neatral port. These things, it was said, did not amount to
making of the port a << base of naval operations," which denoted
the use of neutral territory as a station or point of departure
from which to watch for and attack the enemy.
In regard to the duty claimed by the United
^Hff*** ^v^ ^i^ States to rest upon the neutral, under the second
rule of the treaty, not only not to extend hospi-
talities to, but to seize and detain, whenever it might enter the
jurisdiction, a belligerent vessel which had there been specially
adapted, in whole or in part, to warlike use, the British Counter
Oase contended that while such a vessel, having become liable
to seizure, could not relieve itself by moving from one place to
another within the national jurisdiction, as from Liverpool to
Queenstown or Nassau, yet it could not be seized after it had
outside of the jurisdiction duly entered the service of a belliger-
ent. '^ The A labama,^ said the Counter Case, "when she touched
for the first time at a port of a British colony, had for more
than six months been- commissioned and in active service as a
cruiser of the Confederate States; had, as such, fought a suc-
cessful action with a United States war steamer; and, as such,
had been received at the French island of Martinique, as she
afterward was at Fernando de Noronha, Bahia, atfd Cherbourg.
And, in matters relating to the war, it was the duty of Great
Britain, as it was the duty of all other neutral powers, to treat
the Alabama in exactly the same manner as, under correspond-
ing circumstances, they would have treated a public ship armed
and commissioned by a recognized sovereign state." ^ If, while
in neutral waters, a ship so commissioned committed a viola-
tion of neutrality, force might, said the Counter Case, undoubt-
edly be employed in any way which might be necessary "in
order to prevent or arrest the unlawful act or to compel her
departure. But redress ought not,'' it continued, " to be sought
against the ship itself; it should be sought, if needful, against
her government. A fortiori^ this is true if the offense were
committed before she arrived at the neutral port"
As illustrating the duties and practice of
^Z^ti^T^^ neutrality, and the difficulties and imperfec-
tions usually exhibited in its enforcement, the
British Counter Case reviewed a number of precedents which
had either been appealed to by the United States, or which
1 Citing Ortolan, Dip. de la Mer (4th ed.), II. 190.
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THE GENEVA ARBITRATION. 619
were found iu its history, as the case of the Swedish ships,^
violations of American neutrality in 1793 and 1794 and during
the war carried on by Spain and Portugal against the Spanish-
American colonies, and later violations of the same kind, in-
cluding the Lopez expeditions against Cuba, the Walker expe-
ditions against Mexico and Central America, the Fenian raids
into Canada, and the various criminal enterprises from 1869 to
1871 in aid of the insurrection in Cuba. From these examples
the following conclusions were deduced : 1. That the argument
of the United States that a neutral government was bound to
apply to the various duties which purported to be enumerated
in the three rules, when pushed even beyond the natural mean-
ing of the words, a diligence the most energetic, vigilant, and
exact, found no support in the history or in the practice of the
United States. 2. That the argument that compensation was
due, as of right, for any loss sustained in war by a belligerent
which might be traced to a relaxation of diligence in prevent-
ing violations of neutrality, whether sound or not, was not sup-
ported by any precedent. 3. That where compensation had
been claimed iu such cases it had been limited to values of
ships and cargoes captured by vessels unlawfully fitted out
and armed; and that the claim had never been admitted ex-
cept when such prizes had been brought by the captors within
the jurisdiction of the neutral power. 4. That there was no
trace of an obligation on the part of a neutral government to
seize and detain an armed ship entering its ports, commis-
sioned as a public ship of war, which had received any equip-
ment or any adaptation for war within its jurisdiction; that
while the Government of the United States in 1793 directed
that privateers which had violated its neutrality should not
have any asylum in its ports, it acknowledged no obligation to
do so, and that the exclusion seemed to have been "by no
means steadily enforced.^ Nor could Her Majesty's govern-
ment forbear to remark that the history of the subject was
"from first to last a history of unlawful enterprises originated
either in the United States or by citizens of the United States
in other countries."
The complaints of the United States in re-
^"^*t^f*°*^ gard to the traffic in munitions of war did not,
said the British Counter Case, fall within the
scope of the arbitration. No power had asserted the right of
^ Be Martens's Cansos C<^lM>re8, V. 229, ed. 1861.
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620 INTERNATIONAL ARBITRATIONS.
the neutral to traffic in contraband so strongly, unreservedly,
and consistently as the United States, and no nation bad more
freely acted upon it. The transportation of military supplies
was equally a contraband commerce, whether carried on openly
or covertly, from Liverpool or from London or from Nassau. At
the commencement of the war both belligerents resorted to
Great Britain for supplies of arms and military material. Prior
to May 1861 the Government of the United States sent agents
to England to purchase arms. Such agents were also sent out
by some of the States. Extra supplies of small arms, percus-
sion caps, cannon and other ordnance, saltpeter, lead, clothing,
and other warlike stores, representing a value of not less than
£2,000,000, of which £500,000 were for muskets and rifles alone,
were exported from England to the northern ports of the
United States during the civil war. Large quantities were
also purchased by the United States in France, Austria, and
other neutral countries. Some of the agents who effected the
purchases were officers in the military service; arrangements
were made for the regular shipment from England of the goods
purchased from time to time; payment was made through the
financial agents of the American Government in England. In
the sense in which the expressions were used in the Case of
the United States, that government, said the British Counter
Case, had in England during the civil war <^ a branch of its War
Department and a branch of its Treasury." As to what was
said of the firm of Frazer, Trenholm & Co., it was found that
Prioleau in fact settled himself as a merchant in Liverpool in
1854 and remained in England, except an absence of a few
months, till June 1863, when he applied for naturalization,
stating in his application that he had been a resident house-
holder for eight years, had married an English wife, and was
desirous of acquiring landed property in England and residing
there permanently. The hypothecation of stocks of cotton,
stored for exportation, and to be delivered after the conclusion
of the war, was a transaction which it was not the duty of the
British Government nor within its power to prohibit any more
than it was its duty or within its power to prohibit subscrip-
tions by British subjects to the war loans Issued by the United
States as well as by the Confederacy.*
> Cobdeii; in a letter to Samner of April 2, 18S3, referring, among other
things, to dealings in contraband, said: ''Now, there are certain things
which can be done and others which can not be done by a goTemmeni.
We are bound to do oar best to prevent any ship of war being built for
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THE GENEVA ARBITRATION. 621
As to the complaints touching the Kassan
The Kaaian Trade, trade, the British Counter Case referred to the
charge made by the United States that the
colonial government rescinded a previously existing prohibi-
tion against the transshipment of cargoes in order to facilitatic
blockade running. This charge, said the British Counter Case,
was based on "a loosely worded sentence occurring in a letter
purporting to be written by a Confederate agent,'' which letter
was said to be one of a large number << captured at the taking
of Bichmond and at other times." Her Majesty's government
had ascertained that the statement was erroneous. The fiscal
regulations of the colony prohibited the transshipment of goods
the Confederate goYernment, for a ship of war can only be used or owned
legitimately by a government. But with munitions of war the 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 governments 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 trans-
actions in which, by the way, the North has been quite as much involved
as the South. If you have read the debate in the House on the occasion
when Mr. Foster brought up the subject last week, you will see how Sir
Ronndell Palmer, the solicitor-general, and Mr. Laird, the shipbuilder,
availed themselves of this opening to divert attention from the real ques-
tion at issue— the building of war ships to the question of selling muni-
tions of war — in which latter practice it was shown you in the North
were the great particijiators. You must really keep the public mind right
in America on this sabject. 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 feel-
ing on the right side here.'' (Am. Hist. Rev. II. 309-310.)
In another letter, of May 22, 1863 (Id. 311), Cobden said: '<I can not too
often deplore the bungling mismanagement 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 difference
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 reclama-
tion 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 opportunity of escaping
in a cloud of dust from the real question at issue."
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622 INTERNATIONAL ARBITRATIONS.
unless they were landed for examination; but this prohibition,
which had generally been suspended as a matter of course in
the case of goods stated to be in transit, might in any case be
dispensed with by permission of the receiver-general, which
was frequently accorded during the war. The prohibition
itself was not removed or modified, and no change was made
in the regulations. That cargoes were in fact frequently trans-
shipped, either with or without au intermediate landing. Her
Majesty's government had no doubt. Yet the statement of the
administrator of the Bahamas, of November 20, 18G1, that no
warlike stores had been received at Nassau for shipment to the
Confederate States, was not ^^ the announcement of an imaginary
condition of affairs," but the truth at the time. The first ar-
rival of a vessel suspected of being loaded with arms and
munitions of war for the Confederate States was on December
9, 1861. But this fact did not call for inquiry on the part of
the British Government. '^ To repress the trade, so far as it
was not a bona fide trade between neutral ports carried on in
neutral ships, was the business, not of Great Britain, but of
the United States^ and they did repress it accordingly by a
strict and rigorous exercise of the belligerent rights of block-
ade, visit, search, and capture."
The complaints in the Case of the United
^"^^MwTt^ ^"^ ^^^^^ ^^ "excessive hospitalities" on the part
of the British authorities to Confederate cruis-
ers and of "discourtesies to vessels of war of the United States"
the British Counter Case examined with minuteness and pro-
nounced to be groundless. " During the course of the civil
war," said that document, " ten Confederate cruisers visited
British ports. The total number of such visits was twenty-
five, eleven of which were made for the purpose of effecting
repairs. Coal was taken in at sixteen of these visits, and on
sixteen occasions the limit of stay fixed by the regulations was
exceeded. • • • On the other hand, the returns which
have been procured of visits of United States vessels of war to
I)orts of Great Britain and the colonies, though necessarily im-
perfect, show an aggregate total of 228 such visits. On thir-
teen of these repairs were efiected; on forty- five occasions
supplies of coal were obtained; and the twenty-four hours'
limit of stay was forty- four times exceeded. • * • It is dif-
ficult, indeed, to avoid the conclusion that these complaints
spring from imperfect information. When, for example, it was
asserted that the cruisers of the United States were virtually
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THE GENEVA ARBITRATION. 623
excluded from the chief port of the Bahama Islands in favor
of the Confederate cruisers, and we discover that these islands
were thirty-four times visited by the former, while Nassau was
but twice visited by the latter; or, when the quantity of coal
obtained by Confederate ships is made a matter of complaint,
and we find that a single United States vessel, within six
weeks, contrived to procure from three British iK)rts more than
two-thirds of the amount ascertained to have been purchased
within Her Mi^esty's dominions by all the Confederate ships
together during the whole course of the war, can we doubt that
the Government of the United States is laboring under serious
misapprehensions!"
In respect of the claims for compensation,
Moaanre of Damages, the British Counter Case maintained that only
those could be taken into account which had
directly arisen from the capture or destruction, by one or more
of the cruisers enumerated in the British Case, of ships or prop-
erty owned by the United States or by citizens of the United
States, and that the extent of liability of Great Britain for such
losses could not exceed that proportion of them which might
justly be attributed to some specific failure or fiiilures of duty in
respect of such cruiser or cruisers; that the arbitrators should,
in determining these questions, take into account not only the
loss incurred, but the greater or less gravity of the default
itself, and all the causes which might have contributed to it,
and particularly whether the loss was in whole or in part due
to a want of reasonable activity and care on the part of the
United States; that claims for money alleged to have been ex-
pended in endeavoring to capture or destroy any Confederate
cruiser were not admissible; that claims for interest were not
admissible; and that, if the tribunal should award a sum in
gross, that sum ought to be measured by the extent of the lia-
bility which the tribunal might find to have been incurred by
Great Britain on account of any failure or failures of duty
proved against her.
When, soon after its presentation at Geneva^
^American Ca«e^ *^^ contents of the American Case became
public from copies distributed in the United
States and in England, it naturally became the subject of com-
ment in the columns of the press.^ In the English journals
the chapter on "unfriendliness" was made the subject of
^ Papers Relating to the Treaty of Washiugton, IV. 4-7.
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624 INTERNATIONAL ABBITBATION8.
special animadversion. The chapter on claims seemed at first
to attract less notice; it certainly was subjected to less criti-
cism. On December 28, 1871, the Morning Post said there was
'< an unpleasant rumor, as yet whispered only in ' unusually
well-informed circles/" that the American Case included a
claim for "prolongation of the war" and certain other claims,
which the writer described as Mr. Sumner's " indirect claims.''
"The extravagant nature of these demands," said the Morning
Postj " is the best assurance that the arbitrators, a majority of
whom are to make an award which is to be final, will refuse
to entertain them. But that they should be made, when their
rejection is certain, is not a pleasant circumstance." The Times
of January 2, 1872, said that all these "large" and " boundless
questions" might be "considered as before the arbitrators at
Geneva;" that, although the United States had not estimated
these damages, Great Britain could not let judgment go by
default; and that the safest as well as the most dignified course
would be " to stand upon sound legal principles, and to demur
to any such claims for indirect damage." On January 3 tlie
Daily News^ which subsequently became one of the most
extreme advocates of a withdrawal from the treaty, said:
" Happily claims such as these are no longer matter of con-
troversy between England and the United States. Confident
in our own rectitude, and in the substantial justice of our
cause, we have consented to refer it to a tribunal so constituted
as to insure the confidence of the world. We do not anticipate
its decision, but we shall be ready to accept its justice."
The first real alarm sounded in regard to
direct ci ' " ^" *^® indirect claims, and the first suggestion of
opposition to their arbitration, appeared in the
Morning Advertiser of January 4, 1872. " Had Great Britain,"
asked this journal, "ever agreed to refer such demands to arbi-
tration t " " If we have not^^ continued the writer, " then it [ the
Case of the United States] must either be at once withdrawn, or
we must withdraw from the treaty. If we liave — ^if imbeciles and
fools have so conducted our negotiations as to have put it in the
power of any authority whatever, even by possibility, to award
our national degradation and financial ruin — ^it becomes still
more necessary that the nation should resume a faculty it hiis
so fatally delegated to such crass incompetency, and repudiate
a jurisdiction it should never have acknowledged." The Daiijf
Telegraphy the Spectator^ the Times^ the OlobCj the PaU MaU
QazettCj the Observer^ the Standard, and other journals took
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THE GENEVA ARBITRATION. 625
up the discussion, some of them deprecating any violent agi-
tation, but all finally concurring in the view that something
should be done to avert all possibility of an award of damages
on the indirect claims.
It seems that at one time the cabinet had
" Acti™™*" ' under consideration the propriety of asking
for the withdrawal of the American Case, prob-
ably on account of certain statements in tlie chapter on '' un-
friendliness." But it was not until February 3, 1872, that Her
Majesty's government, in a note addressed by Earl Granville
to General Schenck, announced the opinion that it was not
within the province of the tribunal of arbitration at Geneva
to decide upon the claims for indirect losses. On the opening
of Parliament on February 6 the Queen's speech contained the
following announcement :
" The arbitrators appointed pursuant to the Treaty of Wash-
ington, for the purpose of amicably settling certain claims
known as the Alabaina 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 incUided which
are understood on my part not to be within the province of
the arbitrators. On this subject 1 have caused a friendly
communication to be made to the Government of the United
States.''
In the debate on this announcement in the
Debate m the House ^^^^^ ^^^ j^^^.^^^ ^^^^^^ j^^ j^^ y^r,^^^ declared
of Lords. '
that the indirect claims were "utterly inad-
missible and could not be for one moment entertained."
Viscount Powerscourt ** trusted that the so called Alabama
claims would soon be settled, and that a friendly understand-
ing miglit be arrived at."
Earl Granville referred to the statement which he had i)re
viously made on the subject, and said he trusted that he should
be able, when the proper time came, if it should be necessary,
to show ^' by reference to the particular words of the protocols
and treaty, to the statements of the commissioners, and to
former correspondence on the subject, not only what was our
intention, but also what wehad reason to sui)i)ose was the inten-
tion of the United States Government, and lastly, that the
claims objected to are excluded by the words of the treaty.'"^
'Hansard. ('('IX. 33.
5027 40
Digitized by LjOOQIC
626 INTERNATIONAL ARBITRATIONS.
Lord Derby said that while the Johnson-Clarendon conven-
tion ^<did not specially bar out these new and enormous claims
for indirect injuries," the ^^ first intimation the English public
received on that subject was contained in that remarkable
speech delivered by Mr. Sumner," after the negotiations were
ended.^
In the House of Commons on the same day
De te in the Com- ^^ Disraeli expressed the opinion that the
paragraphs in the Queen's speech were inade-
quate to the occasion. He had always been in favor of Mendly
relations with the United States, and, with the late Earl Derby,
was strongly opposed to the recognition of the Southern States,
for which some were at one time extremely anxious. He had
heard that the American Case had been in the possession
of certain persons in England for more than a month. It
demanded of the country a tribute greater than could be
exacted by conquest and which would be perilous to their for-
tunes and their fame.
Mr. Gladstone declared that the interpretation put upon the
treaty by Her Majesty's government was "the true and
unambiguous meaning of the words, and therefore the only
meaning admissible, whether tried by grammar, by reason, by
policy, or by any other standard," and that they reserved to
themselves "the right to fall back on the plea that a man or a
nation must not be taken to be insane, or totally devoid of the
gift of sense," since it would amount "almost to an interpre-
tation of insanity to suppose that any negotiators could intend
to admit, in a peaceful arbitration, • * * claims which not
even the last extremities of war and the lowest depths of mis-
fortune would force a people with a spark of spirit * * •
to submit to at the point of death." *
» Hansard, 3d series, CCIX. 38.
2 Hansard, 3d series, CCIX. 85, 86. The Times, in an editorial on Febru-
ary 7, 1872, expressed the opinion that Mr. Gladstone went too far in saying
that the treaty would bear only one interpretation. It thought that the
question must be settled by a subsidiary agreement, according to the Brit-
ish interpretation. On the same day the Pall Mall Gazette declared that it
was impossible to deny 'Hhat the American claims*' were "tenable under
the language of the treaty itself," though it was equally true that the same
language was not opposed to the British interpretation of the tme spirit
of the agreement.
The Berlin correspondent of the Daily News, Saturday, Febmary 10, 1873,
said : '' We have had a panic on our stock exchange, a panic occasioned by
that troublesome and interminable -iZaftawa question. * » • It began on
Thursday. Nobody wanted to buy, and everybody wanted to sell. • • *
United States bonds and other American stock could not be sold at all.**
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 627
By the speech of Earl Granville, as well as
^^oimSjrio^L by the remarks of the other speakers, it ap-
pears that the contention of Her Msyesty's
government that the indirect claims were not within the juris-
diction of the tribunal of arbitration rested upon the proto-
cols of the joint high commission and on the language of the
treaty itself. But, in a si)eech at Exeter on May 17, 1872,
while the controversy as to the claims was still pending, Sir
Stafford Northcote said that he and his colleagues "understood
a promise to be given that these claims were not to be put for-
ward, and were not to be submitted to arbritation."^ Subse-
quently, however, in a letter addressed to Lord Derby, and
read by the latter in the House of Lords, Sir Stafford North-
cote explained his meaning by saying that he referred to the
<^ statement voluntarily and formally made by the American
commissioners at the opening of the conference of the 8th of
March," and that he understood this statement "to amount to
an engagement that the claims in question should not be put
forward in the event of a treaty being agreed on." But, with
the other British commissioners, he had, he said, never for a
moment thought of relying upon that conclusion or upon any
other matter outside of the treaty itself; they thought that
the language of the treaty was sufficient, according to the
ordinary rules of interpretation, to exclude the claims for indi-
rect losses, and at all events the British commissioners meant
to make it so.*
In a speech in the House of Lords on June 4, 1872, the
Marquis of Kipon denied that the British commissioners at
Washington had relied on " a secret understanding subsisting
between them and the American commissioners that these
indirect claims would not be brought forward." " On the 8th
of March," he said, " as referred to in the protocol, these claims
were mentioned by the United States commissioners — men-
tioned in a manner which, in substance, is described in that
protocol on your lordship's table; and throughout the course
of the subsequent negotiations these claims were not again
brought forward." He also said that it was the object of the
British commissioners to employ language in the treaty which
excluded the claims.^
» Papers Relating to the Treaty of Waahiogton, II. 594.
"Sir Stafford H. Northcote to Lord Derby, Papers Relating to the Treaty
of Washington, II. 604.
"Papers Relating to the Treaty of Washington, II. 603.
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628 INTERNATIONAL ARBITRATIONS.
When the report of Sir Stafford Northcote's
statomentsof Ameri- speech at Exeter, to the effect that a promise
can ommiBiionen. ^^^ \)een given as to the indirect claims, was
received at Washington, Mr. Fish addressed a communication
to each of the American commissioners saying that he had
never heard of any such promise nor suspected anything of
tlie kind, and asking them to state their recollections on the
subject.^ Mr. Hoar answered that he never thought or sus-
pected that any such promise existed, or was understood by
anyone to exist; but that, on the contrary, he " always thought
and expected that those claims, though incapable from their
nature of computation, and from their magnitude incapable of
compensation, were to be submitted to the tribunal of arbi-
tration, and urged as a reason why a gross sum should be
awarded, which should be an ample and liberal compensation
for our losses by captures and burnings, without going into
petty details."^ Judge Nelson said that his recollection was
distinct that no such promise was in fact made.^ Messrs.
Schenck and Williams answered to the same efl'ect.^
When these responses were given it was
"V 3' ^ understood by the American commissioners
Btanding.
that Sir Stafford Northcote in his speech at
Exeter referred to some secret or personal promise, especially
as he also said that the difference which had arisen in relation
to the indirect claims raised "painful questions'' between the
British and the American commissioners. But the natural in-
ference from this language was afterward wholly negatived by
his letter to Lord Derby, as well as by the speech of the Mar-
quis of Ripon in the House of Lords, so that in the end the con-
troversy was narrowed down to the questions whetlier the
proceedings of the joint high commission of March 8, 1871, as
entered in the published protocol of the 4th of May, consti-
tuted an engagement on the part of the United States not to
present the indirect claims at Geneva, and whether the lan-
guage of the treaty itself excluded them from the jurisdiction
of the tribunal.
When we consider all the circumstances of the case, and the
character of the negotiators of the treaty, there can be no
' Mr. Fish to Judge Nelson, June 3, 1872, l*apers Relating to the Treaty
of Washington, II. 597.
- Papers Relating to the Treaty of Washington, II. 598.
•' Id. 599.
•Id. 599, 600.
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THE GENEVA ARBITRATION. 629
doubt that the diit'erence as to the question whether the
indirect claims were excluded was tlie result of a simple mis-
understanding. These claims formed a subject which the com-
missioners on both sides were more anxious to get rid of than
to discuss. By various utterances the American public had
been led to expect that they would be included in any refer-
ence to arbitration; and the American commissioners, while
regarding the claims as unsound, desired to have them dis-
posed of by the tribunal of arbitration. Understanding the
situation of the American commissioners, and being desirous
to conclude an arrangement, the British commissioners, think-
ing that the terms of the protocol and the language of the
treaty would be so construed as to exclude the indirect claims,
doubtless deemed it well to avoid any tittempt to secure from
the United States an express renunciation of them. This is,
it should seem, a fair statement of the respective positions of
the commissioners — positions perfectly comprehensible, and
not in any wise morally censurable. But as the course of the
United States, and of its agent at Geneva, in putting forward
the indirect claims has been severely criticised, it is proper to
present a review of the controversy as it appears in the records.
As has been seen, the national or indirect
statomen^ of March ^jj^jj^g ^^^.^ gj.g|. formulated in the speech of
Mr. Sumner, urging the rejection of the John-
son-Clarendon convention. They were diplomatically brought
to the attention of the British (iovernment by an instruction
from Mr. Fish to Mr. Motley of September 25, 1869, which was
read by Mr. Motley to Lord Clarendon.^ At the meeting of
tbe joint high commission on March 8, 1871, to which reference
has already been made, Mr. Fish opened the conference by
reading a statement of the American claims, which appears in
the protocol of May 4, 1871, as follows:
"At the conference held on the eighth of March the American
commissioners stated that the people and Government of the
United States felt that they had sustained a great wrong, and
that great injuries and losses were inflicted upon their com-
merce and their material interests by the course and conduct
of Great Britain during the recent rebellion in the United
States; that what had occurred in Great Britain and her
colonies during that period had given rise to feelings in the
United States which the peoi)le of the United States did not
»For. Rel. 1873, part 3, pp. 329, 335; Papers Relating to the Treaty of
Washiiigtou; II. 462.
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630 INTERNATIONAL ARBITRATIONS.
desire to cherish toward Great Britain; that the history of
the Alabama and other cruisers which had been fitted out,
or armed, or equipped, or which had received augmentation
of force in Great Britain or in her colonies, and of the opera-
tious of those vessels, showed extensive direct losses in the
capture and destruction of a large number of vessels with their
cargoes, and in the heavy national expenditures in the pursuit
of the cruisers, and indirect injury in the transfer of a large
part of the American commercial marine to the British fag,
in the enhanced payments of insurance, in the i)rolongation of
the war, and in tlie addition of a large sum to the cost of the
war and the suppression of the rebellion; and also showed
that Great Britain, by reason of failure in the proper observ-
ance of her duties as a neutral, had become justly liable for
the acts of those cruisers and of their tenders; that the claim's
for the loss and destruction of private property which had thus
far been presented amounted to about fourteen millions of dol-
lars, without interest, which amount was liable to be greatly
increased by claims which had not been presented ; that the
cost to which the government had been put in the pursuit of
cruisers could easily be ascertained by certificates of govern-
ment accounting officers; that in the hope of an amicable set-
tlement no estimate was made of the indirect losses, without
prejudice, however, to the right to indemnification on their
account in the event of no such settlement being made.
"The American commissioners further stated that they
hoped that the British commissioners would be able to place
upon record an expression of regret by Her Ma^jesty's govern-
ment for the depredations committed by the vessels whose acts
were now under discussion. They also proposed that the joint
high commission should agree upon a sum which should be
paid by Great Britain to the United States, in satisfaction of
all the claims and the interest thereon.
"The British commissioners replied that Her Majesty's gov-
ernment could not admit that Great Britain had failed to dis-
charge toward the United States the duties imposed on her by
the rules of international law, or that she was justly liable to
make good to the United States the losses occasioned by the
acts of the cruisers to which the American commissioners had
referred. They reminded the American commissioners that
several vessels, suspected of being designed to cruise against
the United States, including two ironclads, had been arrested
or detained by the British Government, and that that govern-
ment had in some instances not confined itselfto the discharge
of international obligations, however widely construed, as, for
instance, when it acquired at a great cost to the country the
control of the Anglo-Ghineseflotilla, which, it was apprehended,
might be used against the United States.
"They added that although Great Britain had, from the
beginning, disavowed any responsibility for the acts of the Ala-
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THE GENEVA AEBITRATION. 631
hama and the other vessels, she had already shown her willing-
ness, for the sake of the maintenance of friendly relations with
the United States, to adopt the priucipleof arbitration, provided
that a fitting arbitrator could be found, and that an agreement
could be come to as to the x>oints to which arbitration should
apply. They would therefore abstain from replying in detail to
the statement of the American commissioners, in the hope that
the necessity for entering upon a lengthened controversy might
be obviated by the adoption of so fair a mode of settlement as
that which they were instructed to propose; and they had now
to repeat, on behalf of their government, the offer of arbitration.
"The American commissioners expressed their regret at this
decision of the British commissioners, and said further that
they could not consent to submit the question of the liability
of Her Majesty's government to arbitration unless the princi-
ples which should govern the arbitrator in the consideration
of the facts could be first agi*eed upon."
On the 6th of April, rules for the govem-
A*rU?^ ment of the arbitrators having been agreed
upon, the British commissioners, who, with
some of the American commissioners, preferred the head of a
state as arbitrator, agreed to the proposition of Mr. Fish for a
tribunal of jurists, and the commissioners then entered upon
the question of the kind of award which should be made. This
involved the further question of the scope of the submission.
From the private journal kept by Mr. Bancroft Davis, the
American secretary, and written each day at the close of the
conference,! extract the narrative which follows of the discus-
sions of the commissioners.
The American commissioners desired that the arbitrators
should be empowered to award a gross sum. Lord de Grey,
while admitting that this process had its advantages, thought
that if a gross sum was to be named it was important to know
what elements should enter into it — what should be the meas-
ure of damages.
The American commissioners apprehended that there would
be great difficulty in defining any limitation ; the discussion
which would result would be long and unsatisfactory. They
suggested that the tribunal should take into consideration the
whole diplomatic correspondence, and such further facts and
documents and arguments as might be submitted by either
government, and apply to them the principles already agreed
upon, together with other principles of international law which
had not been discussed in the conference, and that the arbi-
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()32 INTERNATIONAL ARBITRATIONS.
trators, beine; judges both of fact and of law, could then deter-
mine what gross sum ought to be awarded for any violations
of law which might have occurred.
Lord de Grey replied that these suggestions opened a wide
Held. To speak frankly, he felt bound to say that the reference
should not be made so wide as to allow the arbitrator to take
a claim which had been put forward in the correspondence,
though he supposed not seriously, for compensation for the
expenses to which the United States had been i)ut by the pro-
longation of the war. It would not do to open the door to
vague claims.
Mr. Fish asked if he would exclude that claim. Suppose a
competent tribunal should decide that Great Britain was
liable; would Great Britain deny her liability!
Lord de Grey said he had certainly no authority to consent
to a reference of such a claim.
Sir Stafford ^'orthcote remarked that he did not think it
quite fair to refuse a limitation to the rule of damages, when
Great Britain had been restricted by the articles already
agreed to as to the denial of her original liability.
Lord de Grey said that they were beating about the bush
for words. If the American commissioners would put in shape
what they meant it was possible that the British commission-
ers would assent to it.
Judge Hoar asked why Lord deCirey would not state what
he wanted.
Lord de Grey replied, " I think it is for you to state. You
evidently have some definite view."
Judge Hoar said: *^No. We propose general suggestions,
and 3'ou indicate a desire to limit them. You should state
your limitations."
Lord de Grey thought it ver}^ desirable to keep on general
grounds, and to avoid diflQculties which were sure to arise if
they went much further into details.
The British commissioners retired for consultation, and on
their return suggested an adjournment, which was taken to
the 8th of April.
At the meeting on that day the American
^ A^^n^k ^ commissioners presented a draft of articles for
the submission of the Alabama claims. The
draft began: "The High Contracting Parties agree that all
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THE GENEVA ARBITRATION. 638
the differences between the two governments which arose
during the recent rebellion in the United States, growing out
of the acts committed by the several cruisers which have given
rise to the claims generically known as the Alabama claims, and
all such claims, shall be referred to five commissioners,'' etc.
Lord de Grey observed that this paragraph *^ made a pro-
vision for a reference of all diff'erences, and of all claims,"
thus drawing a distinction between differences and claims.
<' Difl'erences,'' he continued, " was a very wide word. It was
laid down in a subsequent part of the paper that the official
correspondence was to be laid before the arbitrator. In that
correspondence there had been at various times a variety of
points raised, some of vague descriptions, embodying demands
of the largest class." Lord de Grey pointed out that in the
letter of Sir Edward Thornton to Mr. Fish of February 1 it
was said that he was authorized to state that it '^ would give
Her Majesty's government great satisfaction if the claims
commonly known by the name of the Alabama claims were
submitted." This language, he urged, '» distinctly precluded
the submission of differences as distinguished from the Ala-
bama claims. * * • The words used were wide and vague
and capable of a meaning which he was confident the Amer-
ican commissioners did not intend to give them. He hoped
they would consent to use language guarding against a danger
which was to them a real danger.''
Mr. Fish in reply read from his letter of January 30 to Sir
Edward Thornton, in which he said that the President was of
opinion that " the removal of the differences which arose during
the rebellion in the United States and which have existed since
then growing out of the acts committed by the several vessels
which have given rise to the claims generically known as the
Alabama claims," would be essential to the restoration of
amicable relations. "Such questions," said Mr. Fish, "as had
been there alluded to had been raised, and such differences did
exist, and it was essential that they should be included in the
submission in order to remove all causes of difference."
Lord de Grey "feared if this was insisted on that the whole
labors" of the commission "might break down on this point."
It was, he declared, one thing to agree to treat of differences
and another thing to a;,nee to submit them all to arbitration.
Mr. Fish called attention to the fact that the particular class
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634 INTERNATIONAL ARBITRATIONS.
of claims to which Lord de Grey was supposed to allude as
being objectionable <<had not been put forward in the official
correspondence — had only been made the subject of rhetorical
efforts.'' And he again urged that " a partial submission would
probably produce dissatisfaction in both countries — certainly
in this country" (the United States).
A long discussion followed, which was terminated by Judge
Williams asking Lord de Grey "to state what specific amend-
ment he desired to make to tbe American proposition."
Lord de Grey said he desired the removal of the words "the
differences."
Rir. Fish replied, "If I understand you, you wish to confine
the reference to the Alabama claims."
Lord de Grey said, "Yes, substantially so."
"And leave all other questions open?" inquired Mr. Fish.
"No," answered Lord de Grey, "not exactly that. I sup-
pose they would be covered by the treaty, if we come to one."
Judge Hoar said he did not see how they could be, unless
they were stated in the treaty.
The American commissioners retired to consider the objec-
tion of Lord de Grey. After some discussion, Mr. Fish saw
Lord de Grey, who suggested that the draft should be altered
so as to read that the contracting parties "thought that it
was desirable that all differences, etc., should be settled, and
agreed to submit the claims." Mr. Fish did not like the word
"thought," and suggested instead the words "in order to re-
move" all differences. To this Lord de Grey assented.
Mr. Fish reported this proposition to the other American
commissioners, who were satisfied with it.
The commission then reassembled, and it was agreed, on
the suggestion of Lord de Grey, that the secretaries should
before the next meeting confer on the form of articles for a
treaty.
The secretaries accordingly spent the even-
Draft of Artioles. ing in conference on the subject, and afterward
Mr. Davis drew out a form of articles which
was duly communicated to the commissioners and formed the
basis of subsequent discussion. Its substantial coincidence,
in respect to the scope of the submission, with the treaty as
signed may readily be seen:
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THE GENEVA ARBITEATION.
635
ME. DAVIS'S DBAFT.
Whereas duringf the recent
Bebellion in the United States
dififerences arose between the
Government of the United
States and the Government of
Her Britannic Majesty, and
still exist, growing out of the
acts committed by the several
vessels, which have given rise
totheclaims generically known
as the Alabama claims ;
And whereas [insert expres-
sion of regret] it has been
determined, in order to remove
all such differences, and to
establish permanent good rela-
tions between the two Govern-
ments, and provide for the
speedy adjustment and settle-
ment of such claims :
The High Contracting Par-
ties therefore agree that all
the said claims growing out of
the acts committed by several
vessels generically known as
the Alabama claims shall be
referred, etc.
TREATY AS SIGNED.
Whereas differences have
arisen between the Government
of the United States and the
Government of Her Britannic
Majesty, and still exist, grow-
ing out of the acts committed
by the several vessels which
have given rise to the claims
generically known as the "Ala-
bama Claims";
And whereas [expression of
regret] : Now, in order to re-
move 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
HighContracting Parties agree
that all the said claims, grow-
ing out of acts committed by
the aforesaid vessels, and gen-
erically known as the "Ala-
bama Claims/' shall be re-
ferred, etc.
In the seventh article of Mr. Davis's draft
DiBoiiMion of Draft there was a provision to the effect that in case
the commissioners should tind Great Britain
guilty of a violation of neutrality in respect to any particular
vessel, the expenses of the United States for her pursuit and
capture should be paid by Her Majesty's government on the
presentation of the amount thereof certified by the proper
department of the United States Government.
On the 10th of April Lord Tenterden told Mr. Davis that
"Lord deGrey woulduever consent to send thislanguagehome;"
that the first article, in employing the word "claims," without
limiting them to the citizens of the United States, " was re-
garded as allowing such claims to go to arbitration;'' that if
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636 INTERNATIONAL ARBITRATIONS.
the language in question should be insisted on they might retort
in London by demanding a modification of the first article,
and that Lord de Grey regarded it as being better as it stood.
The American commissioners agreed to this, but on the 13th
of April the question of the national claim for the pursuit of
the cruisers again came up, in the discussion of the tenth arti-
cle of the draft, relating to proceedings before the assessors,
should such proceedings take place. Mr. Fish inquired whether
it was understood that the claims of the (Tovernment of the
United States for the pursuit and capture of the cruisers was
to be considered by the arbitrators and assessors.
Lord de Grey said that the language of the tenth article did
not enlarge the enacting words in the first article, and these
had already been settled and agreed to.
The enacting words, as they then stood, having been agreed
to on April 12, were :
" Therefore, in order to remove and adjust all complaints and
claims on the part of the United States, and to provide for the
speedy settlement of such claims, the 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," etc.
Mr. Fish observed that what Lord de Grey said was true;
but in connection with the tenth article it might be necessary
to provide for the proof of the class of claims in question.
The British commissioners retired to consult; and when they
returned Lord de Grey said that " they would not consent to
alter, to enlarge, or to open the words of the enacting clause
that had been already agreed to, and that if it was insisted
upon they should ask for an immediate adjournment."
The American commissioners then retired, and on returning
read the following paper:
^<We can consent to leave the language as it is upon the
articles as they are, observing that in so assenting we are not
to be in any wise understood to agree to a construction of tlie
article that will exclude the claims of the United States for
the pursuit of the vessels; but, on the contrary, we assent to
the language used because we consider it sufficient to include
all claims of the government which the arbitrators may find
just ; it being understood that the claim of the United States for
such pursuit is to appear in the protocol which is to be made
as having been expressly advanced and made by the United
States in the opening of this discussion."
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THE GENEVA ARBITRATION. 637
Lord de Grey said he understood that "the artic.es were to
be passed, subject to the arrangement of such a protocol at
some future meeting."
Immediately after the adjournment of the conference Mr.
Davis drew, under instructions, a draft of the proposed proto-
col, which, after revision by the American and British commis-
sioners, was formally agreed to on the 4th of May.
After careful consideration of these discus-
Constrnotioiio g^Q^g j^ the light of what subsequently oc-
curred, I confess that the impression made on
my own mind is that the British commissioners thought that
the treaty as agreed on excluded the indirect claims from refer-
ence to the arbitrators, while the American commissioners as
certainly entertained the opposite opinion. An eminent cor-
respondent who was in the United States just after the ratifi-
cation of the treaty by the Senate spent two days with Mr.
Sumner in Washington, and went over the treaty with him
almost line by line. At Mr. Sumner's house he met Mr. Gushing
and other gentlemen. Throughout all their conversations the
l>resentation of the indirect claims at Geneva was not merely
assumed, but asserted, and the shape they would take was
discussed. In subsecjueiit conversations with the President,
and with that one of the American commissioners who, per-
haps, "actually drew the greater part of the treaty," and with
Mr. Adams, the same view was invariably expressed. Ko one
suggested that the United States had abandoned the indirect
claims. Even General Butler, who bitterly assailed the treaty,
did not suggest it. No one hinted that the British commis-
sioners had been overreached or deceived, and no one supposed
that between them and the American commissioners there could
be any misunderstanding.' And yet such a misunderstanding
arose; and the fact that it did not develop itself to the minds
of the commissioners before the close of the negotiation was,
^ Mr. George W. Smalley, in the London Times, February 14, 1872. Mr.
Sniallt'y, in another letter, published in the Times of February 15, 1872,
said that in a conversation with tlio President, after the ratification of the
treaty, the President expressed **the satisfaction with which he had seen
a settlement reached, and the pride he took in the success of a policy
which had niarke<l his administration froui the beginning — a policy of
peace. Of war he had seen enough, and more than enough. His ambition
was to Mettle aU standing dispute s, and to take care that no new ones were
opened.'' The- President had a reputation for being taciturn, *'but for
once he spoke freely and warmly.''
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638 INTERNATIONAL ARBITRATIONS.
I tbink, due to tlie circumstance, which has heretofore been
noticed, that, deterred by the practical difficulties of the sub-
ject, neither side sought an explicit discussion of it. ^
In the debate on the treaty in the House of
Ti^IJIIrS^d. ^^^^ ^^ "^^^^ ^-' ^^^^' ^^^^ Granville read
from the protocol of March 8 the statement of
Mr. Fish that ^^ the history of the Alabama and other cruisers
* * * showed extensive direct losses » • * and indirect
injury in the transfer of a large part of the American com-
mercial marine to the British tlag, in the enhanced payments
of insurance, in the prolongation of the war, and in the addi-
tion of a large sum to the cost of the war and the suppression
of the rebellion," and said: '^ These were the pretensions which
might have been carried out under the former arbitration, but
they entirely disappear under the limited reference, which
includes merely complaints arising out of the escape of the
Alabama.^^^
Lord Derby considered the treaty a poor one, but thought
that, as it had been made, it should be accepted as an accom-
plished fact. The only concession, he said, of which he could
see any trace on the American side was " the withdrawal of
that utterly preposterous demand that we should be held
responsible for the premature recognition of the South as a
belligerent power in company with that equally wild imagina-
tion, which I believe never extended beyond the minds of two
or three speakers in Congress, of making us liable for all the
constructive damage to trade and navigation which may be
proved or supposed to have arisen from our attitude during
the war." ^
The Earl de Grey considered that the government had "ac-
complished a signal benefit in binding the American Govern-
ment by rules which are just and reasonable in themselves, and
from which, in case of future wars, * * * no country on the
* Mr. Fish, in a telegram to Oeuenil Sclienck of February 29, 1872, 8ai<l:
'^Whatever the Britinh coniiuissioDerH may have intended or thought
among themselves, they did not eliminate the claims for indirect losses,
they never asked us to withdraw them, nor did they allude to them directly
or in plain terms; and at't^r the deliberations of the joint commission
were closed, Tenterden and the British commissioners allowed them to ho
formally enumerated in statement of 4th of May without a word of dis-
sent." Papers Relating to the Treaty of Washington, II. 434.
2 Hansard, 3d series, CCVI. 1852.
« Id. 18ft4.
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THE GENEVA ARBITRATION. 639
face of the earth is likely to derive so mach benefit as England
herself."
Lord Cairns said he concurred with Earl Granville that
under the arbitration proposed by the late foreign secretary
and Lord Clarendon it was quite possible for the United States
to have made extravagant claims. ^' But," added Lord Cairns,
" what is there in the present treaty to prevent the same thing?
I can not find one single word in these protocols or in these
rules which would prevent such claims being put in and taking
their chance." '
In a debate in the House of Commons on August 4, 1871,
Sir Stafford Northcote said that the claims arising out of the
acts of the Alabama were most clearly defined in the treaty.
The Johnson-Clarendon convention, in his opinion, made it
possible to raise a number of questions which England was
not willing to submit to arbitration. ^^ They might," he said,
<<have raised the question with regard to the recognition of
belligerency, with regard to constructive damages arising out
of this recognition of belligerency, and a number of other
matters which this country could not admit. But if the honor-
able gentlemen will look to the terms of the treaty actually
contracted, they would see that the commissioners followed
the subjects very closely by making a reference only to a list
growing out of the acts of particular vessels, and in so doing
shut out a large class of claims which the Americans had
previously insisted upon, but which the commissioners had
prevented from being raised before the arbitrators."'
In the discussions in England which followed
Aifpunenu Againit tjj^ Queen's speech of February 6, 1872, great
gtroetion*" ^ stress was laid on two points. An appeal was
made to the preamble of the treaty to show
that the "amicable settlement" spoken of by Mr. Fish in his
statement of March 8 referred as well to any settlement that
might be made through the medium of arbitration as to an
agreement that might have been arrived at by the joint com-
^ In an extract in tbc London Times, March 26, 1872 (p. 10, column 5),
from a conversation published in the New York Herald, Mr. Seward is
reported to have said: **My position under the former (the Johnson-
Clarendon) treaty was that everybody who had suffered and is entitled to
any damages has a right to present his claims, whether they be consequen-
tial or direct damages/'
1 Hansard, 3<1 series, CC VIII. 900.
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640 INTERNATIONAL ARBITRATIONS.
mission and embodied in the treaty. This was the first point.
The second was the fact that the Government of the United
States had made no protest against tlie statements in Parlia-
ment as to the true interpretiition of the treaty, though, as was
often i)ointed out, General Schenck was present at the debate
in the House of Lords on the 12th of June.*
As to the expression "amicable settlement,^' the proper inter-
pretation of it seems to be that it referred, as Mr. Fish used it,
to a direct settlement by the commissioners. Mr. Fish said
that "in the hope of an amicable settlement no estimate was
made of the indirect losses, without prejudice, however, to the
right to indemnification on their account in the event of no
such settlement being made." In their reply to this statement,
the British commissioners disavowed any respousibility on the
part of Great Britain for the acts of the Alabama and the other
vessels, and made an offer of arbitration. The American com-
missioners "expressed their regret at this decision of the Brit-
ish commissioners." If the "amicable settlement" desired by
Mr. Fish included arbitration, there certainly was little mean-
ing in the American commissioners' expression of regret when
the British commissioners proposed that mode of settlement.
It seems that Mr. Fish used the term to describe a direct set-
tlement, at least of the question of liability, as distinguished
from contentious litigation before arbitrators.
To the failure of the United States to protest against what
was said in Parliament as to the true interpretation of the
treaty little importance can be attached. The opinion ex-
pressed by Lord Granville and the Marquis of llipon in the
Uonse of Lords was directly opposed by Lord Cairns, than
whom there was no higher authority in matters of legal con-
struction. And if questions arose as to the construction of
the treaty, was not the tribunal of arbitration the proi)er
authority to decide them f Was not the tribunal competent to
determine whether claims were or were not within its juris-
diction? It has been seen that this question arose under the
seventh article of the Jay Treaty, and that it was then
answered in the affirmative, though, in the contioversy which
arose concerning the sixth article of that treaty, it ai>pears
that the United States did not admit that the power of arbi-
trators to derermine their own jurisdiction was unlimited.
It is highly probable, and indeed some of the discussions
' Papers Relating to the Treaty of Washington; II. 427.
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THE GENEVA ARBITRATION. 641
clearly show, that as the indirect claims were traced by Mr.
Sumner to the recognition of belligerency, many persons sap-
posed that the disavowal of that pretension by the United
States signified the withdrawal of the claims. Bat it is obvi-
ous that the indirectness of the indirect claims was diminished
rather than increased by treating them as growing out of the
acts of the Confederate cruisers, whose depredations were
either the immediate or the proximate cause of all the injuries
of which the United States complained.
The same disposition of sincere amity that
^uJSn ""'' ^^ *^ *^® conclusion of the treaty saved it
from failure in the controversy that arose as
to its meaning. In April, when the time arrived, for the filing
of the Counter Cases, Lord Tenterden met Mr. Davis at Geneva
with unreserve and in a spirit of conciliation. Under instruc-
tions jfrom his government he lodged with the secretary of the
tribunal a notice to the individual arbitrators of the action
taken by Her Majesty's government on the 3d of February, in
order that the act of filing the British Counter Case should not
be deemed a waiver of that action; but he did not conceal his
own strong desire to save the treaty. He said that unless the
claim for the prolongation of the war was out of the way no
ministry in England could go on with the arbitration. Various
expedients were discussed, and Lord Tenterden finally sug-
gested that the arbitrators might come together of their own
motion before the 15th of June, for the avowed purpose of
relieving the two governments by the consideration in advance
of argument — subject to the right of either party to argue sub-
sequently—of the liability of Great Britain for the indirect
damages. To this suggestion Mr. Davis did not at the time
reply, though he regarded it with favor.*
Meanwhile the two governments were en-
J^^^u ^ deavoring to reach a final solution of the con-
troversy. In a telegram of March 1, 1872, Mr.
Fish instructed General Schenck to sound Lord Granville as
to the willingness of the British Government to withdraw their
construction of the treaty of 1846 as to the San Juan water
boundary, if the United States would withdraw their construc-
tion of the treaty of arbitration as to the indirect claims. This
proposition Lord Granville declined.^ On the 27th of April
iMr. Davis to Mr. Fish, April 17, 1872. (MS.)
2MSS. Dept. of State
5627 il
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642 INTERNATIONAL ARBITRATIONS.
Mr. Pish, after a conversation with Sir Edward Thornton, tele-
graphed to General Schenek that, while the United States had
not asked for pecuniary damages on account of the indirect
losses, it was deemed essential that the question be decided
whether claims of that nature could in the future be advanced
against the United States. He said that his conversation with
Sir Edward Thornton had induced the belief that the British
Government might make a proposal to the effect that Great
Britain would not advance such claims against the Uuited
States in the future, and that in consideration of such a stipu-
lation the Uuited States should not press for damages on
account of the indirect claims at Geneva. Mr. Fish said that
the President would assent to such a proposal.^
Negotiations were proceeding on this line
A4jonMient 0 y^Yieii the time arrived for the reassembling of
the tribunal of arbitration. Baron d'Itajub4
was in doubt about going to Geneva, unless requested to do
so.* Mr. Fisli instructed Mr. Davis to go to Geneva and, if
necessary, to give notice to the arbitrators that he expected to
be there; and notice was accordingly sent to each arbitrator
that the United States would be present at Geneva on the
16th of June, by their agent and counsel, and \frould be pre-
pared to present their argument and to submit themselves to
the further directions of the tribunal under the treaty. On
that day Mr. Davis appeared before the arbitrators and deliv-
ered the American argument. Lord Tenterden also appeared,
but instead of delivering the British argument he requested
the tribunal to grant an adjournment for a period of eight
months in order to enable the two governments to conclude
and ratify a supplementary convention. But, fortunately, a
solution of the difficulty was found on the line of the sugges-
tion made by Lord Tenterden in the preceding April.
It has heretofore been stated that the diffi-
Kt. Adanu'i Views, culty of the Government of the United States
in dealing with the indirect claims was not
due to any faith in their soundness, but to the difficulty in
getting rid of them. In an instruction to General Schenek of
April 23, 1872, Mr. Fish said that the United States "would
at any time willingly have waived the indirect claims for any
equivalent, or in connection with any settlement, had they
' Papers Relating to the Treaty of Washington, U. 477.
«Mr. Davis to Mr. Fish, June 11, 1872. (MS.)
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THE GENEVA ARBITRATION. 643
been asked so to do during the negotiation of the treaty."
Before Mr. Adams sailed for England a member of the Cabinet
had a conversation with him in Boston, in which Mr. Adams
expressed the opinion that, as a question of pablic law, a state
was not liable in damages for injuries, such as those enumerated
in the American Case, resulting indirectly from a failure to
observe neutral obligations; and Mr. Fish suggested that Mr.
Adams might find occasion, while in London, to interchange
opinions on this point with Sir Alexander Gockburu or some
member of the government, and that the assurance of an agree-
ment of the opinions of the American and British arbitrators
as to the question of liability ought to remove the apprehen-
sions of the British Government on the subject of a possible
award.^
When the arbitrators reassembled at Gen-
Negotiations at ^ ^^^ Adams, in view of the fact that the
two governments were endeavoring to dispose
of the indirect claims by negotiation, sought to secure the
assent of the British agent to the consideration and deter-
mination of the several questions of liability afi'ecting the
direct claims, leaving the question of the indirect claims for
further negotiation. On the 15th of June Mr. Davis, at the
request of Mr. Adams, had an interview with Lord Tenterden
on this proposal. His Lordship, who had been instructed to
secure an adjournment or to retire, expressed the individual
opinion that the course suggested by Mr. Adams would not be
entertained by the ministry; but he added: '* What does Mr.
Adams wantf If he means business he must go further. He
must have the indirect claims rejected.^' Lord Tenterden then
explained that he thought it probable that if the neutral
arbitrators would be willing to say that Great Britain could
not be held responsible for the indirect claims, the manifesta-
tion of such an opinion would induce the United States to
instruct their agent to say that they did not desire to liave
those claims further considered by the tribunal. He said there
was a strong feeling in England that the United States ex-
pected that the arbitrators would, while specifically rejecting
this class of claims, let them have weight when considering
other claims, and that some instructions would be desired to
answer that objection. Mr. Davis, who had already been try-
ing to induce the arbitrators to pass upon the indirect claims
1 MSS. Dept. of state.
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644 INTERNATIONAL ARBITBATIONS.
pending the motion for an adjoarnment, at once saw Mr.
Waite and Mr. Evarts (Mr. Gashing had gone to bed) and
told them what had taken place; and about midnight he had
another interview with Lord Tenterden, who came to say that
he had seen Sir Eoandell Palmer, and that the latter had made
a minute of three points which would have to be borne in mind
by the arbitrators in any such step as had been suggested.
These points Lord Tenterden was not authorized to communi-
cate officially, but he read them to Mr. Davis, who wrote them
down from his dictation. They were as follows:
<^1. That the arbitrators can not give any judgment on the
indirect claims, as not being submitted to them by both parties;
and that therefore any expression of opinion upon them at the
present time would be simply extrajudiciaL •
"2. That the British Government having expressly refused
to allow the indirect claims to be adjudicated upon by the tri-
bunal, it would not bexjonsistent with the duty of the British
arbitrator to take any part in any expression of opinion on the
subject.
<^3. That any expression on the subject would not be binding
upon either of the two governments unless assented to by both."
Early on the morning of June 16 Mr. Davis laid these points
before the counsel of the United States with some written com-
ments, in which c^ounsel concurred. It was agreed that Mr.
Evarts should see Sir lloundell Palmer and suggest that the
third point contained everything necessary for the protection
of either government, and that the statement of the points of
disagreement be omitted. Mr. Evarts saw Sir Boundell in the
evening, and he was understood to concur in the opinion that
the third point was all that need stand.
As soon as counsel had completed their examination of Sir
RoundelPs points Mr. Evarts and Mr. Davis called upon Mr.
Adams and laid the fiicts before him.
Mr. Adams concurred in the opinion expressed by Mr. Davis
that an adjournment such as was asked for would end in a
rupture, and declared that he would do all in his power to pre-
vent it. "He said,'' as reported by Mr. Davis in a contempo-
raneous memorandum,' "that he had had some conversation
with Mr. Fish before leaving Washington, in which Mr. Fish
had told him that he was willing to have the indirect claims
decidedly adversely, and that he had said to Mr. Fish chat in
his judgment they ought to be so disposed of; that Mr. Fish
^MS8.Dept. of state.
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THE GENEVA ARBITRATION. 645
had felt so mucli interest in the matter that he had sent a spe-
cial message to him in Boston, by Mr. Boatwell, to see Sir Alex-
ander Cockbarn in London and endeavor to arrange some way
to have it done; that he had seen some influential persons in
London on the subject, but had not seen Sir Alexander because
he did not think him the best person to see for that purpose;
that he had also seen General Schenck, who was then endeav-
oring to arrange the matter upon the basis of an interchange
of notes, and had handed him a paper containing the substance
of a declaration which at that time it was thought might be
desired from the arbitrators when they should assemble. Mr.
Adams read a portion of this draft, from which Mr. Evarts and
I gathered the opinion that it might be construed to imply a
doubt of the jurisdiction of the tribunal over the indirect claims,
and we so stated to Mr. Adams. He said at once that he had
no doubt himself on that point, that he thought them clearly
within their jurisdiction. Mr. Evarts, however, called his atten-
tion to some points in the argument of counsel bearing upon
this, and laying the foundation for the contemplated action of
the tribunal. It was then understood by us that Mr. Adams
was to see Count Sclopis and to ascertain whether the proposed
action would probably be taken."
On the afternoon of the 16th of June Mr. Adams called on
Mr. Davis and handed him a paper which was duly submitted
by the latter to the counsel of the United States. It was sub-
sequently amended by counsel and by Mr. Adams himself.
The purport of it was that the arbitrators should declare that
the indirect claims did not constitute in law a good founda-
tion for an award of compensation in money, and that the
tribunal would therefore be constrained to decide that Great
Britain could not be made responsible in damages therefor.
This paper was presented by Mr. Adams to Count Sclopis, who
assented to it. When the tribunal met on the 17th of June it
adjourned till the 19th, but the arbitrators unanimously agreed
in principle upon the disposition to be made of the indirect
claims. The American draft of the proposed declaration was
referred to the British arbitrator, to be handed to the British
agent and counsel, with the statement that the tribunal de-
sired, if possible, to have the declaration made in a form
acceptable to both parties. On the 18th of June a counter
draft was received from Sir Koundell Palmer, which was so
nearly acceptable that an agreement was soon reached.
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646 INTERNATIONAL ARBITRATIONS.
When the tribunal met on the 10th of June
Arbitrators * t3ount Sclopis, on behalf of all the arbitrators,
declared that, without intending "to express
or imply any opinion" upon the point of difference "as to the
interpretation or effect of the treaty," they had "arrived, indi-
vidually and collectively," at the conclusion that the indirect
claims "do not constitute upon the principles of international
law applicable to such cases good foundation for an award of
compensation or computation of damages between nations, and
should upon such principles be wholly excluded from the con-
sideration of the tribunal in making its award, even if there
were no disagreement between the two governments as to the
competency of the tribunal to decide thereon." This decla-
ration virtually disposed of the difficulty. On the 25th of
June Mr. Davis informed the tribunal that he was authorized
to say that, in consequence of the declaration of the arbitra-
tors, the claims in question would not be further insisted upon,
and might be excluded from all consideration in any award
that might be made. On the 27th of June Lord Tenterden
stated that he was authorized to say that Her Majesty's gov-
ernment found in the declaration of the arbitrators nothing to
which they could not assent consistently with the view of the
interpretation and effect of the treaty of Washington main-
tained by them, and that, being informed of the statement
made by the agent of the United States, and assuming that
the arbitrators would upon such statement declare that the
claims in question would be wholly excluded from their con-
sideration, and would embody such declaration in the protocol
of the day's proceedings, they had instructed him, upon this
being done, to request leave to withdraw the application for an
adjournment and to deliver the printed argument prepared on
the part of the British Government. Mr. Davis said he would
make no objection to the granting of the request of Lord Ten-
terden ; and Count Sclopis, on behalf of all the arbitrators,
then declared that the several claims for indirect losses would
be wholly excluded from the consideration of the tribunal, and
directed the secretary to embody the declaration in the proto-
col of the day's proceedings.^
* The claims thns excluded were those embraced in the following classes,
as stated iu the American Case : '* 3. The loss in the transfer of the Amer-
ican commercial marine to the British flag. 4. The enhanced payments of
insurance. 5. The prolongation of the war and the addition of a large
Digitized by V^OOQlC
THE GENEVA ARBITRATION. 647
Doubtless it was with a sense of great relief that the agent
of the United States on the afternoon of the 27th of June tele-
graphed to Mr. Fish : ^' British argument filed. Arbitration
goes on.'' *
At the conference of June 27, 1872, Lord
^Te^Jtofa^ Tenterden, as British agent, stated that Sir
Boundell Palmer, Her Britannic Majesty's
eoansel, would, with the permission of the tribunal, read a state-
ment of certain points as to which he desired to present further
argaments in answer to those contained in the argument of the
United States. Sir Boundell Palmer was permitted to read
the statement;' but, after he had concluded, Count Sclopis
announced that the tribunal had decided that, under Article Y.
of the treaty, the arbitrators alone had the right, if they desired
the further elucidation of any point, to require a written or
printed statement or argument, or oral argument, by counsel
upon it, and that it was not competent for the agents or
counsel to make requests of the nature of that in question.
Counsel for the United States prepared a reply to Sir Boundell
Palmer's statement; but, as his request was denied, the arbi-
trators also declined to receive the reply. ^ In view of this
decision, Sir Alexander Cockburn, as one of the arbitrators,
at the' conference on June 28 proposed to the tribunal to re-
quire a written or printed statement or oral argument by coun-
sel on eight groups of questions, substantially covering the
whole field of legal inquiry embraced in the arbitration and
traversed in the cases, counter cases, and arguments already
submitted. '^ This proposition virtually involved the reopen-
ing of the argument. The tribunal, Sir Alexander Cockburn
dissenting, declined to adopt it, but resolved to take up the
case of each vessel in regular order and dispose of it, instead
of entering into a preliminary reargument of general princi-
ples. An adjournment was then taken till the 15th of July. "^
sum to the cost of the war and the sappression of the rebellion." There
remained before the tribunal: ''1. The claims for direct losses growing
ont of the destraction of vessels and their cargoes by the insurgent crnisers.
2. The national expenditures in the pursuit of those cruisers."
^ Papers relating to the Treaty of Washington, II. 580.
'Papers relating to the Treaty of Washington, III. 875
3 Papers relating to the Treaty of Washington, III. 376.
* Papers relating to the Treaty of Washington, IV. 25.
*The tribunal decided that, in the course of its discussions and delibera-
tions, the agents should attend the conferences, accompanied by the coun-
sel for their respective governments, except when the tribunal should
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648 INTERNATIONAL ARBITRATIONS.
When the tribunal reassembled it took into
Prooedure of the eonsideration the question of procedure. Mr.
Staenipili presented a programme in which he
proposed that the tribunal should first consider facts and gen-
eral principles of law, and then take up the case of each cruiser
in regular order. Sir Alexander Gockburu, on the other hand,
sought to lead the tribunal to consider abstract questions of
law in advance of the facts respecting the vessels. It was
decided to follow the scheme of Mr. Staempfli, but this conclu-
sion was not reached unanimously. Sir Alexander Gockbum
strongly insisted on his own plan, and when Baron d'ltajuba
observed that mere theoretical discussions would consume
much time and be of little practical value, exclaimed : ^< Pro-
vided the principles are discussed. We are here qa judges, and
as such must deliberate slowly and not act hastily." To which
Count Sclopis replied: "It was not necessary for Loni Cock-
burn to state that we are here as judges. We all have felt
from the commencement and still feel a deep appreciation of
our duties as such. I have presided for many years in the
highest tribunal of my country. There the facts are univer-
sally discussed first, then the principles which govern them."
Count Sclopis also announced that on the question of ^'due
diligence" he had prepared his vote in writing.' In reality the
question of due diligence had been elaborately discussed in
the Cases and Counter Cases of the two governments, and in
the arguments already presented on their behalf.^
It was at the session of the 15th of July
^^'^u'sTfli^ that the arbitrators were first brought face to
face with the decision of the great questions
which they were appointed to try. When Mr. Staempfli sub-
mitted his programme, he stated that it embodied the order
which he had pursued in his examination of the evidence and
the arguments, and that he had arrived at conclusions on all
points, though he would not say that on consideration with
his colleagues they might not be changed. " It is impossible
to convey to you," said Mr. Davis, writing to Mr. Fish,^ " the
think it advisable to condact its discussions and deliberations with closed
doors. (Papers relating to the Treaty of Washington, IV. 26.) The tri-
bunal exercised its own discretion as to the publication of any parts of its
proceedings, which were usually secret. (Ibid.)
> Mr. Davis to Mr. Fish, July 16, 1872 (MSS. Dept. of State).
« Papers relating to Treaty of Washington, II. 380.
5 MSS. Dept. of State.
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THE GENEVA ARBITRATION 649
interest of the sceDe, especially when Mr. StaempHi made the
declaration that his own mind was nearly made up on the
question at issae." It seems that Mr. Staempfli, after he
received the Cases and Counter Oases of the two governments,
secluded himself in a mountain retreat in the Alps in order to
master them. In this way he was enabled to come to Geneva
<4n due time with full abstracts of evidence and elaborately
written opinions on the main questions at issue before the tri-
bunal to the apparent surprise of Sir Alexander Cockburn,
who, confidently relying on the rupture of the arbitration, as he
himself avowed, had not yet begun to examine the cause.'' '
On the 16th of July the tribunal decided to
Cawof the"iioridB."take up ou the following day the case of the
Florida. The consideration of this case occu-
pied the arbitrators from the 17th of July till the 22d. Sir
Alexander Cockburn read a long opinion, holding that Her
Majesty's government was free from all liability on account of
the acts of this vessel. Count Sclopis, Mr. Staempfli, Baron
d'ltajubd, and Mr. Adams all expressed contrary opinions,
reserving, however, the question of the effect of a commission.
Sir Alexander Cockburn then, in vigorous language, and with
great warmth of manner, urged the tribunal to permit an
argument on the meaning of the words ^' due diligence," on
the effect of a commission, and on the law respecting supplies
of coal.*
Neither the agent of the United States nor
Special Axgiinieiiti. the arbitrators were indisposed to hear further
argument within properly defined limits. The
treaty, however, after providing for the filing by each side of
a Case, a Counter Case, and an argument, did not permit either
government to offer anything more, but merely authorized the
arbitrators, if they desired "further elucidation with regard
to any point," to "require" an argument by counsel upon it,
allowing to the other party an opportunity to reply either
orally or in writing. In the exercise of this power the arbitra-
tors ordered from time to time, always on the suggestion of
Great Britain, special arguments (1) on the meaning of the
words " due diligence," (2) on the effect of a commission on an
offending vessel, (3) on supplies of coal, (4) on the recruitment
of men for the Shenandoah at Melbourne, (5) on the effect of
1 CushiDg's Treaty of Washington, 83.
'Papers relating to the lYeatj of Washington, IV. 7.
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650 INTERNATIONAL AEBITEATIONS.
the entry of the Florida into the port of Mobile, (6) on the ques-
tion of interest, and (7) on the general subject of the statement
of claims. In each instance the British counsel lead in the
discussion, and the counsel of the United States replied. To
the supplemental argument of British counsel ou the three
questions of due diligence, the effect of a commission, and sup*
plies of coal, an oral reply was made on the part of the United
States by Mr. Evarts,^ and a written reply by Mr. Gushing.
Mr. Waite presented a special written argument on the subject
of supplies of coal.
August 15, 1872, Lord Tenterden, as British agent, submit-
ted in respect of one of the vessels before the tribunal certain
documents showing that Her Majesty's government had done
certain things which the argument of the United States sug-
gested that that government ought to have done. The agent
of the United States said, in reply, that he had examined the
documents and that they contained nothing which he regarded
as important in itself, but that, as he could find no authority
in the treaty for the tribunal either to call for or to admit, new
evidence, he must leave the tribunal to act on the application
as its judgment might direct.
The tribunal decided to receive the documents.*
At its twenty-fifth conference, which was
^f iiaS*^''°* held on the 23d of August, after argument on
the first four questions above enumerated had
been concluded, the tribunal proceeded, in accordance with the
requirement of the seventh article of the treaty, "to determine
as to each vessel separately," whether Great Britain had
incurred any liability. This question was first put as to the
Sumter.
The tribunal unanimously answered, "Ko."
The same question was asked as to the N^mhrille^ and the
tribunal unanimously replied, *'No."
The same question was renewed as to the Retribution.
Mr. Adams answered: "Yes, for all the acts of this vessel."
Mr. Staempfli answered: "Yes, as to the loss of the Emily
Fisher.^
Sir Alexander Cockburn, Viscount d'ltajub^, and Count
Sclopis answered "No."
' The oral argament of Mr. Evarts, which was made in English, was
taken down in shorthand, and translated into French.
2 Papers relating to the Treaty of Washington, IV. 33.
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THE GENEVA ARBITRATION. 651
The same qaestion was asked as to the Georgia^ and the
tribunal unanimoasly answered "JS^o.''
The same qaestion was repeated as to the Tallahassee and
the Chickamauga, separately, and the tribunal unanimously
answered "Ko'' for each of these vessels.
The same question having been repeated as to the Alahamaj
the tribunal unanimously answered "Yes."
The same question was renewed as to the Shenandoah^ and
Mr. Adams, Mr. Staempfli, and Count Sclopis answered : " Yes }
but only for the acts committed by this vessel after her depar-
ture from Melbourne on the 18th of February 1865." Viscount
d'ltajub4 and Sir Alexander Oockburn answered "No."*
The final vote on the Florida^ which was postponed for the
completion of the special argument proposed by Sir Alexander
Gockbum on the efiect of her entry into the port of Mobile,
was taken on the 26th of August. All the arbitrators answered
"Yes/' except Sir Alexander Oockburn, who answered "No."*
The deliberations of the tribunal on the
AgreemoitoiiaOTOM g^^J,j^^;^ ^f damages were held with closed
doors, and I have not found any authentic
statement of all the precise grounds on which it arrived at
the sum embraced in its award. Some of the principles on
which it acted are disclosed in the Digest, but it is understood
that the exact amount awarded was the result of mutual con-
cession. "The neutral arbitrators and Mr. Adams," says Mr.
Davis, "from the beginningof the proceedings, were convinced
of the policy of awarding a sum in gross. For some weeks
before the decision was given I felt sure that the arbitrators
would not consent to send the case to assessors until they
should have exhausted all efforts to agree themselves upon
the sum to be paid. We therefore devoted our energies toward
securing such a sum as should be practically an indemnity to
the sufferers." ^ The determination to award a gross sum of
$15,500,000 was reached at the conference of the 2d of Septem-
ber by a msyority of four votes to one. Sir Alexander Oockburn
dissenting." ^
1 Protocol XXV. Papers Relating to the Treaty of Washington, IV. 36-37.
•Protocol XXVI. Id. 38.
3 Papers Relating to the Treaty of Washington, IV. 8.
*By Sir Alexander Cockbnrn's opinion it appears that the tribunal
allowed interest at the rate of 6 per cent, per annum in gold. (Papers
Relating to the Treaty of Washington, IV. 543.)
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652 INTERNATIONAL ARBITRATIONS.
At the thirtieth conl'ereuce, which was held
^6*1^^°^ on the 6th of September, the arbitrators pro-
ceeded to consider a draft of an award in
French, of which, at the request of the tribunal, Mr. Adams
and Sir Alexander Cockburn undertook to provide for the
translation into English. At the conference on the 9th of Sep-
tember the draft which was considered on the 6th was defi-
nitely adopted as the text of the award, Mr. Adams and Sir
Alexander Cockburn presenting the English translation; and
the tribunal resolved that the award should be signed at the
next conference, which was to be held on Saturday, the 14th
of September, at half-past twelve o'clock.
At the appointed hpur the tribunal as-
cioseoftlieTribimaL sembled, and for the first time the doors
were thrown open to persons other than those
connected, directly or officially, with the arbitration. The
cantonal government of Geneva were present in a body as
the guests of the tribunal. The proceedings of the day were
begun by the reading and signing of the protocol of the last
conference. When this preliminary was completed Mr. Fav-
rot, the secretary of the tribunal, read in a firm voice the
official copy of the award in English, << amid the profound
silence of the audience." The reading of the French text was
dispensed with, and the four arbitrators who concurred in the
award (Sir Alexander Cockburn dissenting) signed it " Count
Sclopis then, rising, took in his right hand the copy for the
United States, and in his left hand the copy for Great Britain,
and delivered them simultaneously" to Mr. Davis and Lord
Tenterden, respectively. Sir Alexander Cockburn handed in a
bulky paper, partly in print and partly in manuscript, which
he said contained his reasons for dissenting from the opinions
of his colleagues and which he desired to have annexed to the
protocol. Count Sclopis said that it would be done. The
tribunal then resolved to request the council of state at Geneva
to receive its archives, and after the protocol of the thirty-
second and last conference was drawn up and signed Count
Sclopis, in appropriate terms and amid salvos of artillery dis-
charged by order of the cantonal government, declared the
tribunal to be dissolved.
Thus came to an end an arbitration which, whether measured
by the gravity of the questions at issue or by the magnani-
mous and enlightened statesmanship which conducted them to
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THE GENEVA ARBITRATION. 653
a peaceful determinatiou, was justly regarded as the greatest
the world had ever seen.
. _^ *.,. -u_. The text of the award was as follows:
Awaid of the Tti-
^""^^ "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^ ld71j between the United States of America and Her
Majesty the Queen of the United Kingdom of Oreat Britain
and Ireland.
"The United States of America and Her Britannic Majesty
having agreed by Article I. of the treaty con-
tri5?Swi£f^or"''^' evaded and signed at Washington the 8th of
May, 1871, to refer all the claims *generically
known as the Alabama claims' to a tribunal of arbitration to
to be composed 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 Britannic
Majesty, His Majesty the King of Italy, the
Appointn^nt of .ruitr.tor. Pr^si^en t of thc Swiss Coiifederation, and His
Majesty the Emperor of Brazil having respectively named their
arbitrators, to wit:
" The President of the United States, Charles Francis Adams,
esquire;
"Her Britannic Majesty, Sir Alexander James Edmund
Cockburn, baronet, a member of Her Majesty's privy council,
lord chief justice of England;
"His Majesty the King of Italy, His Excellency Count
Frederick Sdopis, of Salerano, a knight of the Order of the
Annnnciata, minister of state, senator of the Kingdom of Italy;
"The President of the Swiss Confederation, M. James
Stampfii;
•"His Majesty the Emperor of Brazil, His Excellency Marcos
Antonio d'Araujo, Viscount d'ltajubd, a grandee of the Empire
of Brazil, member of the council of H. M. the Emperor of
Brazil, and his envoy extraordinary and minister plenipoten-
tiary in France.
"And the five arbitrators above named having assembled at
Geneva (in Switzerland) in one of the cham-
orK«.i««oaoftrib«n.i. ^^^^ ^^ ^^^ ^utcl dc Villc ou thc 15th of
December, 1871, in conformity with the terms of the second
article of the Treaty of Washington, 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-
cated, the tribunal of arbitration was declared duly organized.
Digitized by LjOOQIC
654 INTERNATIONAL ABBITBATIONS.
<<The agents named by each of the high contracting parties,
by virtue of the same Article II., to wit:
"For the United States of America, John C. Bancroft Davis,
esquire;
"And for Her Britannic Majesty, Charles Stuart Aubrey,
Lord Tenterden, a peer of the United Kingdom, companion of
the Most Honorable Order of the Bath, assistant under-secre-
tary of state for foreign affairs;
" Whose powers were found likewise duly authenticated, then
delivered to each of the arbitrators the printed
Delivery of ca«». ^^^^ prcparcd by each of the two parties, ac-
companied 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 its first
i>.iiv.ryofc<mnier^*««. scssiou, thc countcrcase and additional docu-
ments, correspondence, and evidence referred
to in Article IV. of the said treaty were delivered by the respec-
tive 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.
"The tribunal, in accordance with the vote of adjournment
iMivery «f argu.nenu. pass^d at thclr sccoud scsslon, held on the 16th
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 considera-
i>.nber«tio„s of tribunal. ^^^^ ^^^ trcaty, aud also the cases, 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,
" Has arrived at the decision embodied in the present award :
"Whereas, having regard to the Vltli and Vllth articles of
the said treaty, the arbitrators are bound under the terms of the
said Vlth article, 4n deciding the matters submitted to them,
to be governed by the three rules therein specified and by such
principles of international law, not inconsistent therewith, as
the arbitrators shall determine to have been applicable to the
case;'
"And whereas the ^due diligence' referred to in the first and
Definition of due diugenc, third of thc Said rulcs ought to be exercised
by neutral governments in exact proportion to
the risks to which either of the belligerents may be exposed,
from a failure to fulfil the obligations of neutrality on their
part;
"And whereas the circumstances out of which the facts con-
stituting the subject-matter of the present controversy arose
were of a nature to call for the exercise on the part of Her
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 666
Britannic Majesty's government of all i)ossible solicitude for
the observance of the rights and the duties involved in the
proclamation of neutrality issued by Her Majesty on the 13th
dayof May, 1861;
"And whereas the effects of a violation of neutrality com-
„ , , . . mitted by means of the construction, equip-
ment, 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
grouud for the absolution of the offender, nor can the consum-
mation of his fraud become the means of establishing his
innocence;
"And whereas the privilege of exterritoriality accorded to
vessels of war has been admitted into the law
^E^riiorwity of ve-etoof ^f uatlous, uot as au absolutc 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 not be
Effect of w«t of „otic. regarded as a failure in any consideration
required by the law of nations, in those cases
in which a vessel carries with it its own condemnation;
"And whereas, in order to impart to any supplies of coal a
suppii«.ofcoai. character inconsistent with the 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 cir-
cumstances 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 facts relative to
th?3S?r"' '"' "" "' the construction of the ship at first designated
by the number *290' in the port of Liverpool,
and its equipment and armament in the vicinity of Terceira
through the agency of the vessels called the 'Agrippina' and
the ^ Bahama,' dispatched irom Great Britain to that end, that
the British government failed to uso due diligence in the per-
formance of its neutral obligations; and especially that it
omitted, notwithstanding the warnings and official representa-
tions made by the diplomatic agents of the United States dur-
ing 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 imperfect as to lead
to no result, and therefore cannot be considered sufficient to
release Great Britain from the responsibility already incurred;
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656 INTERNATIONAL ARBITRATIONS.
"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;
^'Aud whereas the government of Her Britannic Majesty can-
not justiiy itself for a failure in due diligence 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 omission, to
ftdflll the duties prescribed in the first and the third of the
rules established by the Vlth article of the Treaty of Wash-
ington.
"And whereas, with respect to the vessel called the < Florida,'
it results from all the facts relative to the con-
Aad of the Florid.. structiou of thc 'Orcto' in the port of Liver-
pool, and to its issue therefrom, which facts failed to induce
the authorities in Great Britain to resort to measures adequate
to prevent the violation of the neutrality of that nation, not-
withstanding the warnings and repeated representations of the
agents of the United States, that Her Majesty's government
has failed to use due diligence to fulfil the duties of neutrality;
"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 cooperation of the British vessel 'Prince Alfred," at
Green Cay, that there was negligence on the part of the Brit-
ish colonial authorities;
And whereas, notwithstanding the violation of the neutrality
of Great Britain committed by the Oreto, 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 responsibility 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 mouths, 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
fulfil the duties prescribed in the first, in the second, and in
the third of the rules established by Article VI. of the treaty
of Washington.
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THE GENEVA ARBITRATION. 657
"And whereas, with resi)ect to the vessel called the 'Shen-
andoah,' it results from all the facts relative to
fc^rtagliJS^;"."**"^'*" the departure from London of the merchant-
vessel the 'Sea King,' and to the transforma-
tion of that ship into a confederate cruiser under the name of
the Shenandoah, near the island of Madeira, that the govern-
ment of Her Britannic Majesty is not chargeable with any
failure, down to that date, in the use of due diligence to fulfil
the duties of neutrality;
"But whereas it results from all the facts connected with
the stay of the Shenandoah at Melbourne, and especially with
the augmentation which the British government itself admits
to have been clandestinely effected of her force, by the enlist-
ment 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 fulfil any of the duties prescribed by the three rules of
Article YI. in the treaty of Washington, or by the principles
of international law not inconsistent therewith,' in respect to
the vessel called the Shenandoah, during the period of time
anterior to her entry into the port of Melbourne;
"And by a majority of three to two voices, the tribunal
decides that Great Britain has failed, by omission, to fulfil the
duties prescribed by the second and third of the rules afore-
said, 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 that vessel after her departure from Melbourne,
on the 18th day of February, 1865.
"And so far as relates to the vessels called —
"The Tuscaloosa, (tender to the Alabama,)
And of the TnacftlooM, CUr- i 4 T] i ft P, 1 a r ft Tl r»ft
•Dce, Tkoony, and Archer. -'■"0 V^ldlCUUC,
"The Tacony, and
"The Archer, (tenders to the Florida,)
"The tribunal is unanimously of opinion —
"That such tenders or auxiliary vessels, being properly re-
garded as accessories, must necessarily follow the lot of their
principals, and be submitted to the same decision which applies
to them respectively.
"And so far as relates to the vessel called ' Uetribution,'
"The tribunal, by a majority of three to two
iJJrUS5?'??r;i/sJ»;S: voices, is of opinion—
chidiiilvy'"''"**' " "That Great Britain has not failed by any
act or omission to fulfil any of the duties pre-
scribed by the three rules of Article VI. in the treaty of Wash-
ington, or by the principles of international law not inconsist-
ent therewith.
"And so far as relates to the vessels called —
"The Georgia,
''The Sumter,
5627 42
Digitized by LjOOQIC
658 INTERNATIONAL ARBITEATIONB.
"The Nashville,
"The Tallahassee, and
"The Chickamauga, respectively,
"The tribunal is uuanimoasly of opinion —
"That Great Britain has not failed, by any act or omission,
to fulfil any of the duties prescribed by the three rules of Ar-
ticle VI. in the treaty of Washington, or by the piiuciples of
international law not inconsistent therewith.
"And so far as relates to the vessels called —
"The Sallie,
Mode. Borton. mki V. H. Joy " Thc Jenerson Davis,
not Ukcn into oonadcrntioa. //mi-mr-
"The Music,
"The Boston, and
"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 in-
demnity claimed by the United Stat^, the
niiow™'""^"' **""** "' ^sts of pursuit of the confederate cruisers are
not, in the judgment of the tribunal, properly
distinguishable from the general expenses of the war carried
on by the United States:
"The tribunal is, therefore, of opinion, by a majority 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.
"And whereas prospective earnings cannot properly be made
Aadfor oRMcuvenrnin ^^^ subjcct of compcnsatiou, inasmuch as they
proqwcuvtrn giu ^^p^jj^ jj^ thclT uaturc upou futuro and anoer-
tain 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 compensa-
tion for the damages which have been sus-
N.tfrdgb*.oaiy.iiow«i. ^j^^^^ j^ jg neccssaTy 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 interest 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 assessors, 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, by a ma-
.w*"i3?'"* comp-n-ttoi jority of four voices to one, awards to Uie United
States a sum of $15,500,000 in gold, as the in-
demnity to be paid by Great Britain to the United States, for
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 659
the satisfaction of all the claims referred to the consideration
of the tribunal, conformably to the provisions contained in
Article VII. of the aforesaid treaty.
<^ And, in accordance with the terms of Article XI. of the said
treaty, the tribunal declai*es that ^ all the claims
The payment to b. a b«. j^^-^yp^^ ^ jjj ^jj^ trcaty HS submittcd to the
tribunal are hereby fully, perfectly, and finally settled.'
"Furthermore it declares, that 'each and every one of the
said claims, whetl^er the same may or may not have been pre-
sented to the notice of, or made, preferred, 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 con-
formity 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.
"Frederick Sclopis.
"Stampfli.
"ViCOMTE D'ItAJUBX."
The paper which Sir Alexander Cockburn
Sir Aleunder Cock- asked leave to have incorporated with the
* "^"^ record was not annexed to the official protocol
handed to the agent of the United States; but on the 24th of
September 1872 there appeared in a supplement to the London
Gazette a paper entitled " Reasons of Sir Alexander Cockburn
for dissenting from the award of the tribunal of arbitration;"
and a copy of this number of the Gazette was transmitted to
the agent of the United States as the paper that should have
been annexed to the protocol^ After reading the document
thus published, Mr. Fish declared that if the agent of the
United States had had an opportunity to become acquainted
with its contents at Geneva he doubtless would have felt it
his '^ right and duty to object to the reception and filing of a
paper which would probably not have been officially received
by the tribunal had an opportunity been afforded to invite
their attention to some of its reflections on this government
and its agent and counsel." ^ Occupying three times as much
space as the opinions of all the other arbitrators together, and
» Papers relating to the Treaty of Washington, IV. 48.
» Id. 546 547.
Digitized by LjOOQ IC
660 INTERNATIONAL ARBITRATIONS.
almost twice as much as the Case of the United States, the
paper dealt in sweeping and oftentimes violent criticisms of
men and things, which even Sir Alexander Cockburn's col-
leagues did not wholly escape. While he described himself in
two places as sitting on the tribanal <<as in some sense the
representative of Great Britain,''^ he deprecated the limita-
tions imposed upon the arbitrators by the rules of the treaty;'
represented Mr. Staempfli as maintaining that ^Hhere is no
such thing as international law," and that the arbitrators were
to proceed <^ according to some intuitive perception of right
and wrong, or speculative notions of what the rules as to
the duties of neutrals ought to be;"^ charged counsel of the
United States with <Hhe most singular confusion of ideas, mis-
representation of facts, and ignorance, both of law and his-
tory, which were perhaps ever crowded into the same space,"
and with affronting the tribunal by attemi)ting to "practice"
on its "supposed credulity or ignorance;"* and animadverted
upon the Case of the United States as seeming " to pour forth
the pent-up venom of national and personal hate."*
That Sir Alexander Cockburn deemed it incumbent upon
him, as a member of a tribunal judicial in its nature, before
which his government was ably represented by an agent and
counsel, to adopt the tone of partisan controversy betrayed a
defect in judgment as well as in temper. In speaking as a
member of the tribunal of arbitration he ought at least to
have remembered that the weight which an expression of opin-
ion derives from the judicial position of him who utters it is
worse than lost when the speaker i>roclaims, by word or by act,
that he has put off the character of the judge for that of the
advocate. IN'o doubt the feeling of resentment which Sir Alex-
ander Cockburn professed, on account of the charges of hostile
motives and insincere neutrality made in the American Case,
was genuine. But in its Counter Case the British Government
distinctly refused to reply to these charges, saying that if they
were of any weight or value the proper rei^ly to them would be
found in the proofs. If the British Counter Case and the British
argument were defective because they were free from vitupera-
tion, it was not the place of an arbitrator (o attempt to supply
the omission. Nor should Sir Alexander Cockburn have for-
» Papers relating to the Treaty of Washington. IV. 286, 313.
8Id.231. »Id. 233. ^Id. 286. »Id. 311.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 661
gotten that in the case of the Alabama^ whose career formed the
type, just as her name afforded the description, of the Confed-
erate cruisers and their depredations, the evidence was so over-
whelming that he himself, while maintaining that << a mere error
in judgment" did not amount to negligence, was compelled to
declare that it was ^' impossible to say that in respect of this
vessel there was not an absence of *due diligence' on the part
of the British authorities." ^
In this relation it is proper to advert to the
ArWtrstoirf Expree- opinions of the arbitrators on the question of
t^ ^ ^*^ British feeling toward the United States dur-
ing the civil war. The only arbitrator, except
Sir Alexander Cockburn, who undertook specially to discuss
this question was Count Sclopis; but there are expressions on
various aspects of the subject in the opinions of the other arbi-
trators. Count Sclopis, while "far from thinking that the
animus of the English Government was hostile to the Federal
Government during the war," said that " there were moments
when its watchfulness seemed to fail and when feebleness in
certain branches of the public service resulted in great detri-
ment to the United States." The circumstances during the
first years of the war — the establishment of Confederate agen-
cies in England, the presence and reception of Confederate
representatives, the interests of great commercial houses at
Liverpool where opinion was openly pronounced in favor of
the South, and public expressions, even by the Queen's minis-
ters, as to the improbability of the reestablishment of the
Union — were, he thought, such as must have influenced, if not
the government itself, at least a part of the population. Under
I Papers Relating to the Treaty of Washington^ IV. 459, 460. Mr. Cash-
ing, in his Treaty of Washington, 128, states that Sir Alexander Cock-
bum, as soon as the tribnnal was declared dissolved, abruptly left the room
"without a word or sign of courteous recognition for any of Jiis colleagues,"
and ''disappeared in the manner of a criminal escaping from the dock,
rather than of a judge separating, and that forever, from his colleagues of
the bench ;" and he then proceeds to characterize Sir Alexander's conduct
and *'dis8entinj opinion" in terms of which the foregoing comparison fur-
nishes an example. A leading journal, in a review of Mr. Cushing's book,
observed that, while the British arbitrator's conduct was irregular and
unsuitable, Mr. Cushing might have shown the fact without resorting to
''invectives." (Rev. de Droit Int. VI. 154.) Sir Alexander's "irregulari-
ties" were indeed little commended, but much censiired in the London
press. (Cushing's Treaty of Washington, 130, et seq.)
Digitized by LjOOQIC
662 INTERNATIONAL ARBITRATIONS.
these drcamstances, and in view of the dangers to which the
United States was exx>o8ed in Great Britain and her colonies,
the government should, in his opinion, have fiilfilled its duties
as a neutral <' by the exercise of a diligence equal to the occa-
sion.'' ^ As to the existence or nonexistence of unfriendly feel-
ing. Viscount d'ltsyub^ expressed no opinion ; but in speaking
of the duty of a neutral to detain a vessel which had departed
in violation of its neutrality, when such vessel came again
within its jurisdiction, he said: <^By seizing or detaining the
vessel the neutral only prevents the belligerent from deriving
advantage from the fraud committed within its territory by
the same belligerent; while, by not proceeding against a guilty
vessel, the neutral justly exposes itself to having its good fiaith
called in question by the other belligerent."^ Sir Alexander
Oockburn himself, while denying the existence of partiality or
of willful negligence on the part of the British Government,
declared that, ^^ though partiality does not necessarily lead to
want of diligence, yet It is apt to do so, and in a case of doubt
would turn the scale." ' At various places, in the cases of the
Florida, the Alabama, the Shenandoah, and the Retribution^
Mr. Adams resorted to evidences of sympathy with the Con-
federacy on the part of the local officials as an explanation
of the lack of due diligence shown on certain occasions. Espe-
cially is this so in respect of the action of the customs authori-
ties at Liverpool in the cases of the Florida and the Alahama,
and of the authorities in the Bahamas in the cases of the Flor-
ida and the Retribution, But as to the British Government
itself, he expressed the opinion that its failure to adopt ade-
quate measures to prevent the escape of the Florida and the
Alabama from England was due to the conception which it
entertained in the earlier stages of the war, that its obliga-
tions as a neutral were discharged by the pursuit of a passive
policy — a policy that stopped with the investigation of evi-
dence furnished by agents of the United States, and origi-
nated no active measures of xirevention. *' Much as I may see
cause," said Mr. Adams in his opinion in the case of the Flor-
ida, '^ to differ with him (Lord Eussell) in his limited construc-
tion of his own duty, or in the views which appear in thes3
papers to have been taken by him of the policy proper to be
pursued by Her Majesty's government, I am far from drawing
> Papers relating to the Treaty of Washington, IV. 9.
« Id. 97-98. a Id. 318.
Digitized by LjOOQIC
THE QENEYA ARBITRATION. 663
any inferences from them to the effect that he was actuated in
any way by motives of ill will to the United States, or indeed
by unworthy motives of any kind. If I were permitted to
judge from a calm comparison of the relative weight of his
various opinions with his action in different contingencies, I
should be led rather to infer a balance of good will than of
hostility to the United States.'' ^
The attitude of Mr. Adams as a member of
^ ' the tribunal of arbitration merits more than
passing notice. To say that the neutral arbi-
trators performed their duty with intelligence arid impartiality
is only to do them justice; but they had no temptation to be
partial. But Mr. Adams was appointed by one of the parties
to the controversy, and each opinion that he expressed directly
affected the interests of his own government. Yet, after fol-
lowing his course through published and unpublished records,
from the time of his appointment as arbitrator till he signed
the award at Geneva, I venture to say that oti no occasion did
he betray a spirit of partiality. This fact appears the more
remarkable when we consider that the very questions on which
it finally became his duty to pronounce judgment were dis-
cussed by him through a long and exciting period of conten-
tion as the diplomatic representative of the United States.
» Papers relating to the Treaty of Washington, IV. 162. Cobden, in a
letter to Sumner of May 2, 1863, touching the fitting out of Confederate
cruisers in England, said : " I have reason to know that our government
fully appreciates the gravity of this matter. Lord Russell, whatever may
be the tone of his ill-mannered despatches, is sincerely alive to the neces-
sity of putting an end to the equipping of ships of war in our harboi-s to be
used against the Federal Government by the Confederates. He was bona
fide in his aim to prevent the Alabama from leaving, but he was tricked
and was angry at the escape of that vessel. * * • if Lord Eussell's
despatches to Mr. Adams are not very civil he may console himself with
the knowledge that the Confederates are still worse treated.'' (Am. Hist.
Rev. II. 310.) In the same letter Cobden stated that he had urged Lord
Russell 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 informed of all that is being done for
the Chinese."
Digitized by LjOOQIC
664 INTERNATIONAL ARBITRATIONS,
His conception of his office was expressed in one of his opin-
ions. '^ The arbitrators," he said, '^ appear to me at least to have
a duty to the parties before the tribunal to state their convic.
tions of the exact truth without fear or favor." ^ Guided by
a clear, accurate, and discriminating perception, Mr. Adams
performed this duty with the utmost fidelity; and at tbe con-
clusion of his labors he received the commendation of Her
Majesty's government* as well as of his own.'
In the United States the award of tbe tri-
Beoeptioii of the bnnal of arbitration was received with satis
Award by the Pub- f^^j^QQ^ though during the pendency of the
proceedings the course of the government,
especially in regard to the presentation of the indirect claims,
was made the subject of attacks which the progress of a Pres-
idential contest did not tend to mollify.^ In England public
opinion, as reflected by the press, was somewhat divided, it
being influenced, no doubt, as in the United States, to some
extent by party feeling. The Times viewed the settlement of
the question with profound satisfaction,*^ while the Standard
was fierce in denunciation of it.® The Telegraph declared that
the victory had been magnificent, though it was England that
must pay the bill.'' The Saturday Review thought the result
"profoundly mortifying to Englishmen." The Daily Kews
said that the arbitrators had done better for the parties than
they could have done for themselves.® The Morning Post
referred to the whole transaction as "a bungled unsettling
settlement." ^ Tbe Morning Advertiser characterized what was
said in defense of the treaty and arbitration as "wild, senti-
mental rubbish."^ The London Observer hailed the award as
a triumph of the cause of peace.*** The Ifoncon/ormist said
that the Geneva arbitration had rendered a service tociviliza-
' Papors relating to the Treaty of Washington, IV. 228.
"Papers Relating to the Treaty of Washington, II. 584.
'Papers Relating to the Treaty of Washington, IV. 546. See, for ac-
knowledgments of the services of the neutral arbitrators, For. Rel. 1872,
pp. 109,320,648.
'I Mr. Fish and the Alabama Claims, 104.
« September 9, 10, 14, 16, 17, 18, 19, 23.
« September 10, 12, 16, 17, 18.
TSeptember9,16,17.
8September9,16.
9 September 9.
!<) September 8.
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THE GENEVA ARBITRATION. 665
tion extending beyond the limits of the two nations and of
the time and generation in which it was performed.^
By Article VIII. of the treaty the sum awarded
^*^wiLd. * ^^ *^^ tribunal was required to be "paid in
coin by the Government of Great Britain to the
Government of the United States within twelve months after
the date of the award." The award thus became payable in
Washington on or before September 14, 1873, and in course of
time there was much conjecture as to how so large an amount
of coin would be obtained and transferred. In the end the
payment was made without actually turning into the Treasury
any coin whatever. The Treasury Department was then en-
gaged, under the funding act of July 14, 1870,* in calling in
6 per cent bonds for redemption; and in order to facilitate
this operation it had established an agency in London, in charge
of two of its own officers, for the purpose of receiving any called
bonds and matured coupons held in Europe, as many of them
were. On the 30th of May 1873 the British Government entered
into a contract with certain bankers, by which the latter agreed
to provide the sum of $15,500,000 so that it should be avail-
able in gold coin in Washington on the 10th of the next Sep-
tember, either by deposits of coin in a prescribed manner or by
the purchase of bonds called for redemption in gold coin in
Washington on before the 13th of September. On the 6th of
June 1873 the Secretary of the Treasury issued a call for the
redemption of $20,000,000 of five-twenty bonds of the loan of
1862 on the 6th of the ensuing September. In due time the
bankers began to buy the bonds and pay for them, and as
they turned them over to the United States they received in
return coin certificates either of the Treasury at Washington
or of the subtreasury at New York. By the 6th of September
they had obtained sixty-eight such certificates, aggregating the
precise amountof the award. All that nowremained to be done
was to transfer the certificates through the British Govern-
ment to the United States ; and in order to facilitate this trans-
action the Treasury prepared a single coin certificate for
$15,500,000, payable to the order of the bankers, in exchange
for the sixty-eight certificates previously issued. This certifi-
cate the bankers indorsed to the joint order of the British
minister or charg6 d'affaires at Washington and the Brit-
ish consul-general at New York. Duly indorsed by these
1 September 11. ^ 16 Stats, at L. 272.
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666 INTERNATIONAL ARBITRATIONS.
officials to the order of Mr. Fisli, as Secretary of State, it was
delivered to the latter on the 9th of September. By Mr. Fish
it was indorsed over to the Secretary of the Treasury, and the
payment was complete.^
We give hereafacsimileof the certificate and its indorsements.
By an act of Congress of March 3, 1873,* it was provided that
immediately upon the payment of the award the money should
'^ be paid into the Treasury, and used to redeem, so fieu> as it may,
the public debt of the United States,'' and that an ^< amount
equal to the debt so redeemed" should be *4nvested in the 5
per cent registered bonds of the United States, to be held sub-
ject to the future disposition of Oongress," the object being to
secure for the time being the advantage to be derived from
substituting bonds drawing 5 per cent interest for outstanding
obligations drawing 6 per cent. In execution of this provision
the Secretary of the Treasury, when the coin certificate of
915,500,000 was delivered to him, issued to Mr. Fish a single
bond of the funded loan for the whole amount. This bond,
there being none engraved of the requisite denomination, was
^'elegantly written out with a pen, in exact similitude, orna-
mentation and all, with the engraved bonds of the same loan."^
A facsimile is here given of the face of the bond.
The total expenses of the arbitration
^Wtolti' ^* amounted, on the part of the United States,
'^' to the sum of $249,168.41. This included the
remuneration of counsel, who received $10,000 each, and
expenses. It was held by the Court of Claims that the
accounting officers of the Treasury possessed no authority to
charge the expenses of the arbitration to the Alabama ^nd
and deduct them from Che awards rendered in favor of claim-
ants by the Court of Commissioners of Alabama Claims.**
By Article VI. of the Treaty of Washington
FaUnre to Bequest ^jj^ high contracting parties agreed not only
on to e ^^ observe the three rules as between them-
Three Aulee.
selves in future, but also ^*to bring them to
the knowledge of other maritime powers, and to invito them
to accede to them." We have seen, however, that before the
1 n. Ex. Doc. 140, 44 Cong. 1 sesa ; Ilackott's Geneva Award Acts, 175.
n? Stats, at L. 601.
3 Mr. Richardson, ex-Secretary of tlio Treasury, to Mr. Hackett, Jnne 22,
1882, HacketVs Geneva Award Acts, 178.
< Weld V. United States, 23 Court of Claims, 126.
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THE GENEVA ARBITRATION. 667
exchange of the ratifications of the treaty a question arose as
to the proper construction of that clause of the second rule by
which the neutral was bound "not to permit or suffer either
belligerent to make use of its ports or waters ♦ * * for
the purpose of the renewal or augmentation of military sup-
plies or arms." This question arose in England very soon after
the conclusion of the treaty, and an effort was made to secure
the adoption by the Senate of the United States, simultane-
ously with its approval of the treaty, of a resolution setting
forth its opinion (1) that the acts prohibited by the clause in
doubt "were prohibited only when done for the service of a
vessel cruising or carrying on war, or intended to cruise or carry
on war, against either of the belligerents,'' and (2) that the
prohibition "did not extend to any exportation from the neu-
tral country of arms or other military supplies in the ordinary
course of commerce."* It seems that the second clause was
inserted in the resolution by Mr. Fish after consultation with
Judge Hoar.* The Senate gave its approval to the treaty, but
laid the resolution on the table; and the objection which the
British Government had encountered still remained. On the
9th of June 1871 General Scheuck telegraphed to Mr. Fish that
it seemed probable that, in order to remove "serious objec-
tions" to the ratification of the treaty, some declaration would
bave to be made so limiting the interpretation of the second
rule as not to restrict sales of arms or other military supplies
in the ordinary course of commerce, and he inquired whether
the President would authorize an expression to that effect in
bringing the rules to the knowledge of other maritime powers
and asking their assent to them. On the following day Mr.
Fish replied that the President understood and insisted that
the rule did not "prevent the open sale of arms or other mili-
tary supplies in the ordinary course of commerce," and that
the United States would, in bringing tlie rules to the knowl-
edge of other powers and asking their assent to them, insist
that such was their proper interpretation and meaning.^
On the 17th of June 1871, the day the ratifications of the
treaty were exchanged at London, Earl Granville sent to Sir
Edward Thornton a draft of a note to be used in presenting
the three rules to the several maritime powers. In this note
»Br. and For. State Papers, LXV. 393.
« Id. 399.
3S. £x. Doc. 2G, 45 Cong. 3 sess. 3.
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668 INTERNATIONAL ABBITRATIONS.
it was stated that the second rale was to be understood <<as
prohibiting the use of neutral ports or waters for the renewal
or augmentation of military supplies only when those acts are
done for the service of a vessel cruising or carrying on war, or
intended to cruise or carry on war, against another belligerent;
and not when military supplies or arms are exported for the
use of a belligerent power from neutral ports or waters in
the ordinary course of commerce.'' This clause, it will be ob-
served, was couched in substantially the same terms as the
resolution which had been prox)osed to the Senate, and which
that body had laid on the table; but Lrord Granville had not
been advised of the action of the Senate on the resolution.* Mr.
Fish, however, being desirous of avoiding the useof terms which
the Senate had practically rejected, proposed to substitute for
the clause in question the assurance expressed in his telegram
to General Schenck, that the second rule was not to be under-
stood as prohibiting '<the open sale of arms or other military
supplies in the ordinary course of commerce.'' Earl Granville
objected to the word "open," because it would seem to make
the government responsible for clandestine sales. Mr. Fish
intimated that he would be willing to omit this word; but he
strongly objected to the word " exportation" in Lord Granville's
draft. Lord Granville was willing to omit it.*
When the discussion had reached this stage and seemed
about to result in an agreement, it was interrupted by the
controversy as to the " indirect claims," and it was not resumed
till several months after the Geneva tribunal had rendered its
award. Meanwhile the situation had materially changed. It
seems that as early as March 11, 1872, Count Beust, the Aus-
trian ambassador at London, had written to Count Andrassy,
saying that Lord Granville desired to be informed as to Aus-
tria's view of the three rules; that Prince Bismarck had
expressed himself in a manner little favorable to them, inti-
mating that in order to render them acceptable they should be
extended so as to forbid the supplying of arms and other
munitions of war; but that Lord Granville had said that this
could not be done.^ On the 7th of October 1872 General
Schenck reported that Count Beust had in his correspondence
» Br. and For. State Papers, LXV. 399-400.
«Br. and For. State Papers, LXV. 400, 412, 415; S. Ex. Doc. 26, 45 Cong. 3
6688. 74.
* M. Henri de Kneserow, Revue de Droit Int. VI. 59, 62.
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THE GENEVA ARBITRATION. 669
with his government taken strong ground against the rules,
and that Count Bernstoff, the German ambassador, had told
Lord Granville that his government probably would oppose
the rules when they were proposed for its acceptance.^ But it
was the award at Geneva that served, more than anything
else, to prevent the joint submission of the rules by the United
States and Great Britain to the other maritime powers. On
the 21st of March 1873 a debate took place in the House of
Commons on a motion of Mr. Harvey for an address to the
Crown praying that Her Majesty in communicating the rules to
foreign powers would declare her dissent from the principles set
forth by the Geneva tribunal. Several speakers, among whom
was Sir W. Vernon Harcourt, spoke in condemnation of the
rules. Mr. Gladstone, then prime minister, declared that ^^ the
dicta of the arbitrators," their "recitals," and their ^^rationes
deddendV^ should not be allowed to enter into the question; but
he intimated that the attempt to place a "substantive inter-
pretation" on the rules in recommending them to other powers
would be open to objection.' There was much criticism of the
rules in the House of Commons again in the following May,
and on the 3d of November 1873, after the question of submit-
ting the rules had been revived by Mr. Fish, Lord Granville
instructed Sir Edward Thornton that, while Her Majesty's
government would not propose to fix, without the full concur-
rence of the Government of the United States, "any particular
interpretation of the rules, or any part of them," they would
think it necessary to guard themselves against any unintended
consequences which, as the result of the Geneva award, the
rules might be thought to involve.^ On the 18th of February
1874, just before leaving oflBce, Lord Granville had a conversa-
tion with General Schenck in which he suggested that, while
both governments should in submitting the rules "decline to
admit any construction x)ut on them by others," they should
also state that the rules embodied what the United States
maintained was international law before, and what Great Brit-
ain, though she was unable to admit that proposition, had
thought fit to incorporate in her own municipal law and to
endeavor to carry into effect when the rules did not exist.*
1 S. Ex. Doo. 26, 45 Cong. 3 sess. 22.
«Id.56.
3 Br. and For. State Papers, LXV. 424.
^ S. Ex. Doc. 26, 45 Cong. 3 sess. 69.
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670 INTERNATIONAL ARBITRATIONS.
With this conversation, the details of which were not reported
to the Government of the United States, the subject remained
in abeyance till the spring of 1875. It was subsequently intro-
duced on several occasions, in connection with the preparations
for the Halifax commission, but with no practical result. On
the 26th of July 1876 Sir Edward Thornton concluded a note
to Mr. Fish, containing a recapitulation of the negotiations,
with the statement that the delay in dealing with the matter
could not be laid to the account of Her Majesty's government.^
On the 18th of the following September Mr. Fish closed the
correspondence with a similar review, in which he endeavored
to show that, with the exception of the period during which the
controversy as to the indirect claims was pending, the United
States had always been willing to make the submission, but
that on various occasions, when the matter had been pressed,
Her Majesty's government had either suggested delay or had
abstained from giving a precise expression of its views. Mr.
Fish adverted to the fact that the same clause in the treaty
which bound the contracting pai^ties to observe the rules in
future also obliged them to present the rules to other powers.
"The stipulation," said Mr. Fish, "is regarded by the United
States as indivisible, so that a failure to comply with one part
thereof may, and probably will, be held to carry with it the
avoidance and nullity of the other." In conclusion he expressed
the wish of the United States to cooperate in the solution of
the question of submission.'
The three rules of the Treaty of Washing-
'^ ^^^^'^ ^^ ^^ ^®re at the very outset discredited in
England by the declaration inserted in the
treaty that Her Majesty's government, while agreeing to them
as rules of decision, could not assent to them as a statement
of principles of international law which were in force at the
time when the Alabama claims arose. As the result of this
declaration the view was generally accepted, in spite of the
opinions which Sir Eoundell Palmer and others had expressed
to the contrary, that the rules as a matter of course imi>osed
upon Great Britain as a neutral new and intolerable burdens;
and when the adverse award was rendered it was generally
ascribed to this cause, though it was also supposed that the
arbitrators had in their award so interpreted the rules as to
I S. Ex. Doc. 26, 45 Cong. 3 sosa. 76, 80.
'Id. 80. •
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THE GENEVA ARBITRATION. 671
make them even worse than they were in their naked form.
Kor was indiscriminate criticism of this kind confined to
England. In the United States adherents of the theory that
a loose and nominal neutrality, ganged by convenience and
inclination, is the kind most conducive to international peace,
as well as those who, while taking a more rigid view of the
duties of neutrality, thought the rules too sweeping, began
to take alarm and to utter wamiugs against making the duties
of neutrals so onerous as to render the state of belligerency
preferable to that of neutrality. And yet it is difficult to find
among these utterances a serious attempt to establish specific
objections either to the rules or to the award.
Prof. B. Robertson, referring in the Encyclopeedia Britan-
nica^ to the three rules and the award, says:
"These rules, which we believe to be substantially just,
have been unduly discredited in England, partly by the result
of the arbitration, which was in favor of the United States,
partly by the fact that they were from the point of view of
English opinion ex post facto rules, and that the words defining
liability ('due diligence') were vague and open to unforeseen
constructions; for example, theconstruction actually adopted by
the Geneva tribunal that due diligence ought to be exercised
in proportion to the belligerent's risk of suffering from any
failure of the neutral to fulfill his obligations."*
These observations are very fully sustained by the opinions
of publicists. At the session of the Institute of International
Law at Geneva in 1874 a report was made by a commission, of
1 XIII. 196, art. International Law.
'These observations are in striking contrast with those of Sir Henry
Maine (International Law, 216); who declares that Great Britain ^* was
penaUy dealt with for a number of acts and omissions, each in itself
innocent.'' The grounds of this singular statement are not disclosed. It
conld hardly have been made as the result of an examination of the cases
of the Alabama J the Florida, and the Shenandoah, which were the only
vessels in respect of which Great Britain was held liable. On September
19, 1872, The Nation (XV. 180), referring to the Geneva award, very perti-
nently said : '' No hardship or inconvenience can ever result to any govern-
ment from being held bound to prevent what England permitted to occur
with regard to the fitting out of that ship [the A labama'\ * * * Xhe cose
of the Oreto, afterward the FlortdUf was nearly as bad. * • * The Shen-
andoah * * * was received at Melbourne with welcome and rejoicings
which it is no exaggeration to call wild. « * * The tribunal imposes
no new or heavy burden on neutraln in deciding that what occurred at Mel-
bourne made the English Government liable for aU the damage done by the
Shenandoah afterward.''
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672 INTERNATIONAL ARBITRATIONS.
which Blnntschli was reporter, which had been appointed to
examine the three rules. The principal paper was presented
by Calyo, who, after examining international transactions and
the legislation of particular states, and citing the opinions of
Kliiber, G. F. de Martens, Fiore, Pando, Bello, De Oussy,
Hautefeuille, Heflfter, Bluntschli, Gessner, Hall, Ortolan,
Ma$s6, Halleck, and other publicists, concluded that ^4ncon-
testably the three rules » • » do not constitute a new
obligation in the law of nations » » » 5 but on the con-
trary they merely affirm preexisting principles consecrated for
many years by numerous acts and by the legislation and prac-
tice of nations." ^
Professor Lorimer, of Edinburgh, assailed the rules on the
significant ground that neutrality itself was by no means a
constant duty, but altogether circumstantial. He also sug-
gested that by cutting off military supplies wars might be
brought to an end before the belligerents were sufficiently
exhausted. Moreover, he thought the first rule capable of
being so applied as to prohibit commerce in ships between
belligerents and neutrals altogether, and objected to making
the intention with respect to a ship's use, rather than her
actual character, the test of neutrality.*
President Woolsey was of opinion that the rules represented
the duties prescribed by international law and that they were
correctly interpreted by the Geneva tribunal. He thought
that the commissioners who framed the treaty understood that
a vessel which ha<l been fitted out and armed and had then
escaped should be seized if she reentered the jurisdiction.
In this relation he pointed out that Lord Granville in his in-
structions to the British high commissioners of February 9,
1871, had said that Her Majesty's government was prepared
to accept the rule that no vessel in the military or naval service
of any belligerent which should have been ^'eciuipped, fitted
out, armed, or dispatched contrary to the neutrality of a neutral
state should be admitted into any port of that state," as well
as the rule that no vessel should be received as a vessel of war
in a neutral port which had not been commissioned in some
port in the actual occupation of the government by which her
commission was issued.^
1 Rev. de Droit Int. VI. 453.
8ld.542.
» Id. 559.
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THE GENEVA AKBITKATION. 673
M. Eolin- Jaequemyus, after an able analysis of the subject,
came to tbe conclusion that the rules did not constitute an
innovation. He commented on Lorimer's idea that a peace
must be regarded as delusive if concluded before the total ruin
of the combatants.^
William Beach Lawrence thought that the interpretation
given by the Geneva tribunal to the words "due diligence " ren-
dered the rules unacceptable. He thought that the declaration
that the diligence of the neutral government must be in exact
proportion to the risk to which the belligerents were exposed
would make neutrals guarantors of every injury which might
be inflicted on one of the belligerents by the use of the prop-
erty of the other belligerent which should be found in the
neutral jurisdiction.'
Prof. Mountague Bernard adhered to the view of his govern-
ment, as expressed in the treaty, of which he was one of the
signers, that the rules constituted an innovation.*^
Bluntschli, as reporter of the commission, summed up its
conclusions. He pronounced the paper of Calvo " very learned
and very judicious," and declared that it "demonstrated "that
the rules did not constitute an innovation, but on the contrary
embodied long recognized principles by which neutral states
had regulated their conduct. He dissented from Lorimer's
suggestion that it was good policy to prolong wars. He con-
curred with President Woolsey in the view that the rules
might be more definitely expressed and that " due diligence"
should be defined. He expressed general concurrence in the
views of Rolin-Jaequemyns, and dissented from the argument
of William Beach Lawrence.*
The institnte voted that the rules were only declaratory of
the law of nations; but, with a view to prevent controversies
as to their interpretation, referred them for revision to the
commission which had previously had them under examination,
at the same time adding to the commission four new members,
one of whom was Professor Westlake.*
" Rev. de Droit Int. VI. 561.
« Id. 574.
» Id. 575.
»Id. VII. 127.
^Id. VI. 606. The oommission as thua constituted was composed of
Bluntschli, reporter, and MM. Asser, Carlos Calvo, Lorimer, Mancinl,
Neumann, Kolin-Jaeqaemyns, Westlake, and Woolsey.
5627 43
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674 INTERNATIONAL ARBITRATIONS.
At the session of the institute at The Hague in 1875 Blunt-
schli submitted a project of rules, with certain observations and
proposed amendments presented by various members of the
commission.' The report was discussed on the 30th of August,
there being pi*esent M. Asser, counselor to the ministry of foreign
affairs, Amsterdam; Prof. Mountagne Bernard; M. Besobrasoff,
of St. Petersburg; Dr. Bluntschli, of Heidelberg; M. Brocher,
of the University of Geneva; Dr. Bulmerincq, counselor of
state, of Wiesbaden; David Dudley Field; Professor Lorimer;
Dr. Marquardsen, member of the Reichstag; Professor de Mar-
tens, of St. Petersburg; M. Moynier, of Geneva; Dr. Neumann,
member of the Austrian House of. Peers; M. de Parieu, mem-
ber of the French Senate and of the Institute of France; M.
Pierantoni, member of the Italian Parliament; M.Bolin-Jaeque-
myns, of Ghent; Sir Tra vers Twisa; Professor Westlake; and
MM. Den Beer Portugael, Hall, Holland, Rivier, and Alb^ric
Rolin. The institute, Messrs. Bernard, Lorimer, and Twiss
opposing, adopted the following rules:*
' <^I. L'liltat neutre desireux de demeurer en paizetamiti^
avec les bellig^rants et de jouir des droits de la neatralite, a le
devoir de s'abstenir de prendre li la guerre une part quelconque,
par la prestation de secours militaires h I'un des belligerants
ou k tous les deux, et de veiller i\ ce que son territoire ne serve
de centre d'organisation ou de point de depart a des exp(3di-
tions hostiles contre Tun d'eux ou coutre tous les deux.
"II. En consequence Pfitat neutre ne pent mettre, d'une
maniere quelconque, k la disposition d'aucuii des £ltats bellige-
rants, ni leur vendre ses vaisseaux de guerre ou vaisseaux de
transport militaire, non plus que le materiel de ses arsenaux
ou de ses magasins militaires, en vue de I'aider a. poursuivre la
guerre. En outre I'fitat neutre est tenu de veiller i\ ce que
d^autres personnes ne nietteut des vaisseaux de guerre k la
disposition d'aucun des I^tats belligerants dans ses ports ou
dans les parties de mer qui dependent de sa juridiction.
"III. Lorsque Pfitat neutre a connaissance d'entreprises ou
d'actes de ce genre, incompatibles avec la neutrality, il est tenu
de pendre les mesures necessaires pour les emp^cher, et de
iRev. de Droit Int. VII. 427.
' AnDuaire, 1. 139. Rivier, in his recent work on the law of nations, inti-
mates that these rules are not less liable to misinterpretation than the
three rules themselves. He observes that the communication of the three
rules to maritime powers with an invitation to accede to them would now
be superfluous, since no state would droam of contesting the principle they
contain, even though the manner in which it is expressed might be criti-
cised. (Principes du Droit des Gens, par Alphonse Rivier, II. 406; Paris,
1896.)
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THE GENEVA ARBITRATION. 675
poursoivre comiiie responsables lea iudividus qui violent les
devoirs de la neutrality.
"IV. I)e meme Tfitat neutre ne doit ni permettre ni sonffiir
que Tun des bellig^rants fasse de ses ports ou <le ses eaux, la
base d'op^rations navales contre I'autre, ou que les vaisseaux
de transport inilitaire se servent de ses ports ou de ses eaux,
pour renouveler ou augtnenter leurs approvisionnemeuts mili-
taires ou leurs armes, ou pour recruter des hommes.
"Y. Le seul fait niat(C'riel d'un acte hostile commis sur le
territoire neutre, ne snffit pas pour rendre respousable 1'£tat
neutre. Pour qu'on puisse admettre qu'il a viol6 son devoir,
il faut la preuve soit d'aue intention hostile (Dolus), soit d'une
negligeuce manifeste (Culpa).
''VI. La puissance les(;e par une violation des devoirs de
neutrality n'a le droit de considerer la neutrality coronie ^teinte,
et de recourir aux armes pour se defeudre contre I'fitat qui I'a
viol^e, que dans les cas graves et urgents, et seulement pen-
dant la dur^e de la guerre.
"Dans les cas pen graves ou non urgents, ou lorsque la
guerre est terniin^'e, des contestations de ce genre appartien-
nent exclusivement ^, la procedure arbitrale.
"VII. Le tribunal arbitral i)rononce ex bono et cequo sur les
dommages-iuterets que Pl^tat neutre doit, par suite de sa
responsabilit^, i)ayer si I'fitat \6s6, soit pour lui-meme, soit pour
ses ressortissants." ^
> I. The neutral state, desirous of maictaiDing peace and friendship with
the belligerents and of enjoying the rights of neiitrnlity, onght to abstain
from taking any part whatever in the war by furnishing military aids to
either or both of the belligerents, and to see to it that its territory does not
serve as a center of organization or point of departure for hostile ezpedi
tiouB against one or both of the belligerents.
II. Consequently the neutral state can not in any manner put at the dis-
position of any belligerent or sell to it ships of war or military transports
or material from its arsenals or military stores with a view to aid it in the
prosecution of the war. Moreover, the neutral state is bound to see to it
that other persons do not within itA ports or waters put vessels of war at
the disposition of any of the belligerents.
III. When the neutral state has knowledge of the enterprises or acts of
this character, which are incompatible with neutrality, it is bound to
take the necessary measures to prevent them, and to hold responsible the
individuals who violate the duties of neutrality.
IV. The neutral state ought not to permit or suffer the belligerents to
make its ports or waters the base of naval operations against each other,
or their military transports to use its ports or waters for renewing or
augmenting their military supplies or their arms, or for recruiting men.
V. The mere fact that a hostile act has been committed on the neutral
territory does not suffice to make the neutral state responsible. In order
to show that such state has violated its duty it is necessary to show either
a hostile intention (dolus) or a manifest neglect (culpa).
VI. The power injured by the violation of the duties of neutrality has
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676 INTERNATIONAL ARBITRATIONS.
Wharton, who had ouce gone so far as to declare that the
*' three rules" "placed limitations on the rights of neutrals
greater even than those England had endeavored to impose
during the Napoleonic wars,"' afterward stated* that "while
the weight of authority" was that "the rules themselves con-
tain propositions which are generally unobjectionable," such
was "not the case with the decisions of the majority of the
arbitrators, who interpret the 'rules' so as to impose on neu-
trals duties not only on their face unreasonable, but so oppres-
sive as to make neutrality a burden which no prudent nation,
in cases of great maritime wars abroad, would accept." As to
what was meant by " the decisions of the majority of the arbi-
trators" we are left to conjecture; but it would be unfair to
assume that the phrase was intended to apply to the result at
which the tribunal arrived with respect to the ^/a^^a^na, the
Floridaj and the Shenandoah after she left Melbourne.^ It
seems rather to have been intended to apply to the ^^rationes
decidendV^ of the arbitrators; and in this assumption we are
warranted by the fact that the passage in which the phrase in
question is found is preceded by various extracts in which
those reasons, especially on the question of diligence, are
criticised. For example, a passage from Creasy* is quoted,
in which four of the arbitrators are represented as having
"virtually" announced the "dogma" that in determining
whether a state is chargeable with negligence, "no regard
whatever is to be paid to the system of criminal process which,
a right to consider neutrality as broken, and to resort to arms to defend
itself against the state which has violated neutrality, only in grave and
urgent cases and only while the war is going on. In cases not grave or
urgent, or when the war has come to an end, disputes of this kind apjier-
tain exclusively to arbitral procedure.
VII. The arbitral tribunal pronounces ex bono et cequo on the amount
of damages which the neutral state ought, in view of its responsibility, to
pay to the injured state either for itself or its citizens.
I Commentaries on American Law, sec. 244. In the same section it was
also asserted that the rules had been '^ repudiated*' by Great Britain and
the United States and "rejected by all other powers."
«Int. Law Digest, III. 649.
'A recent English writer, whose pages bear evidence of a personal exam-
ination of the records, expresses a clear opinion, fur which he sets forth
his reasons, that Great Britain was responsible for these vessels on any
reasonable theory of due diligence. (Walker, Science of International
Law, 485, 490, 496.)
* International Law, 335.
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THE GENEVA ARBITRATION. 677
and which aloue, is recognized and i)ermitted by the fonda-
mental institutions of that state." Certain passages on the
subject of due diligence are also quoted from Sir Alexander
Gockburn's dissent, with comments from which it might be
implied that a majority of the arbitrators held that the neutral
must employ "perfect diligence."
Doubtless it is true that if we take particular expressions in
the individual opinions of the arbitrators and in the award, and
construe them without reference either to the context or to the
results at which the tribunal arrived, it may not be difBcult to
find matter for criticism. For example, the representation that
four of the arbitrators " virtually " announced a " dogma " sub-
versive of the legislative independence of states evidently is
based on their declaration in thecaseof the AZa^ama that "the
government of Her Britannic Majesty cannot justify itself for
a failure of due diligence on the plea of insufBciency of the
legal means of action which it possessed." It is not asserted
that this declaration actually contains the dogma in question,
but it is alleged that it "virtually" does so. On the other hand,
it may be said that the declaration was merely intended to ex-
press the sound general principle, peculiarly applicable to the
case of the Alabama^ which Earl Eussell had admitted to be a
"scandal and reproach" to British laws, that a government
can not be allowed to say, when called upon to perform its
international duties: "The laws do not permit me to do so."
It is a self-evident proposition that if a government may by
legislation fix the measure of what it owes to other states,
there is no such thing as international law or international
obligation. To say that a government can not "justify" a
failure in duty by pleading the " insufliciency " of its laws by
no means warrants the inference that, in determining whether
it has been negligent, " no regard whatever " is to be paid to
its system of criminal process.
We have referred to certain passages from Sir Alexander
Cockburn on the subject of due diligence. The rule laid down
in these passages and approvingly commented upon by Whar-
ton is that which the ^^diligens paterfamilias suin rebus adhibere
solet;^^ or in the form in which Wharton expresses it, "such
diligence as under the circumstances of the particular case
good business men of the particular class are accustomed to
show." To what extent does this differ from the rule laid
down by the four arbitrators! The award declares that the
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678 INTERNATIONAL ARBITRATIONS.
due dilifs^ence referred to in the rules << ought to be exercised
by neutral governments in exact proportion to the risks to
which either of the belligerents may be exposed from a failure
to fulfill the obligations of neutrality on their part." What is
the degree of diligence which the ^^ diligens paterfamilias^^^ or
the " good business man" is accustomed to show! Wharton,
in his work on Negligence, says that it is " proportionate to
the duty imposed; "^ that *^ the same act may or may not be
negligent as the probability of injury ensuing from it may be
greater or less;' and that in order "to avert the charge of
culpa levis^^ which he defines as the negligence of a good busi-
ness man in his specialty, the <' amount of care bestowed must
be equal to the emergency."^ Pollock* says that in determin-
ing the question of negligence, which is merely the contrary of
diligence, the " caution that is required is in proportion to the
magnitude and the apparent imminence of the risk." Gooley^
states that the "care and vigilance" required "may vary
according to the danger involved in the want of diligence."
These expressions may be considered as axioniatic. The exer-
cise of vigilance in proportion to the risk of injury is involved
in the very idea of diligence.
In 1893 an incident which was brought to
An Licidwit of the ^^^ notice of the tribunal of arbitration was
"Alabama's" Escape.
revived by a discussion in the House of Com-
mons. On March 17 in that year Sir Henry James, while
speaking in support of an appropriation to provide the law
officers of the Crown with a permanent office in London, re-
ferred to the escape of the A/a&awia, which, he said, was due to
the fact that one of the law officers to whom the papers in the
case were sent was at the time "reposing on the banks of the
river Wye." According to the statement of Sir Henry James,
this law officer "dispatched his opinion to London" "wrapped
in a brown paper parcel." This parcel " was followed by some
enterprising persons connected with the Confederate States,
and before the papers reached London their contents were
known to the agents of the Southern States," and "before the
advice contained in the papers could be acted upon," the Ala-
bama^ "half equipped, had left the Mersey."® In a letter sub-
> Sec. 48. * Law of Torts, 353, 372.
« Sec. 47. » Torts, 2d ed. 752.
» Sec. 53. « Hansard, 4th series, X. 427.
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THE OENEYA ARBITRATION. 679
Heqnently published in the Loudon Times,^ iu reply to one
appeariDg in that journal on the same day from Lord Selbome,
Sir Henry James accepts the former's statements as to the
details of the transaction, but says that in mitigation of his
inaccuracy he must say that the Queen's advocate, who was
then one of the law officers, had, he believed, a ^^ residence in
close proximity to the river Wye," and he adds: "Perhaps I
ought to give up the brown-paper covering without comment,
but I know that, when Sir William Harcourt and I, in 1873, ap-
pealed to the post-office authorities for the grant of an q^cial
bag, we were fortified by being under the impression that the
Alabama papers had not been sufficiently protected from the
action of enterprising agents."*
The circumstances narrated by Lord Selborne are substan-
stially the same as those disclosed before the tribunal of arbi-
tration. The law officers of the Crown in 1862 were Sir John
Domey Harding, Qneen's advocate; Sir William Atherton,
attorney-general, and Sir Koundell Palmer (afterward Lord
Selborne), solicitor- general. Evidence directly inculpating the
Alabama was communicated by Mr. Adams to the foreign office
on July 22 and July 24, 1862, and was sent by the foreign
office to the law officers on the 23d and 26th of the same month.
"All the law officers," says Lord Selborne, "were in London;
but Sir John Harding was then seriously ill, and incapable of
attending to business, his mind being disordered, and he never
afterward recovered. The consequence of his illness was a
delay of one or two days which would not otherwise have oc-
curred, the papers having been sent in the first instance to his
chambers or his residence." When they reached the hands of
1 March 24, 1893.
' See Ballock, Secret Service of the Confederate States in Europe, 1. 238,
260, 261 ; Semmes's Adventures Afloat, quoted in Papers Relating to Treaty
of Washington, I. 150; G. T. Fnllam, an ofQcer of the Alahamay quoted,
id. IV. 181. The statements made by these agents of the Confederacy as
to the source of their information as to the probable action of the govern-
ment touching the Alabama are vague. Bullock says he did not receive
his information from any officer of the government, but that his solicitor
at Liverpool "managed to point ont the particulars'' of some of the affida-
vits which were prepared for the United States consul there, and thought
they contained allegations which would at least induce the government to
detain the ship for investigation. Sinclair, in his Two Years on the Ala-
bama, 10, refers in a general way to the eeoape of the vessel, but throws
no new light on that subject.
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680 INTERNATIONAL ARBITRATIONS.
Sir William Atherton does not certainly appear, but it is prob-
able that it was on the 28th of July, as it was on the evening
of that day that he called Sir Roundell Palmer into consulta-
tion upon them in the Earl Marshal's room in the House of
Lords.^ They at once agreed upon an opinion that the vessel
should be seized, and this opinion was placed in the hands of
Earl Russell on the morning of the 29th of July, tbe day it
bears date. On July 31, 1862, Earl Russell told Mr. Adams
that there had been some delay in consequence of Sir John
Harding's illness. " Out of this state of facts," says Sir Henry
James, commenting upon them in the letter above mentioned,
"two questions, I think, naturally arise. First, where were
the papers between the 23d and the 29th (28th)! Secondly,
what occurred in consequence of that delay! I am unable to
answer the first question; yet I think it may be surmised that
the documents were either traveling from place to place or
were lying unheeded at the private residence of the Queen's
advocate. But I can answer the second question. The foreign
minister could take no action until he received the law officers'
opinion. In the British Case it is stated: 'The order of de-
tention, which came too late, was deferred only until the law
officers' opinion should be obtained.' During the interval be-
tween the 23d and the 29th of July the Confederate ag-ents
(to use the language of Mr. George Lefevre when speaking on
the subject in 1868) 'got wind' of probable coming events and
acted upon their fears. During the night of the 28th the Ala-
bama left the docks in which she had been lying, and at 10
o'clock on the morning of the 29th she sailed out to sea. The
order to detain the vessel arrived at Liverpool, according to
the British Case, in the afternoon of the 29th.''
In a subsequent issue of the Times^ a correspondent, Dr.
Henry Marshall, who writes as a friend of the late Sir Fitzroy
Kelly, says that the latter narrated to him how Lady Harding
"had shown herself a better wife than subject." The circum-
stances, as they are said to have been described by Sir Fitzroy
Kelly, were that at the time of the escape of the Alabama Sir
John and Lady Harding were residing at their house, called
Rockfields, on the banks of the Wye, near Monmouth, and Sir
John was beginning to show signs of insanity, which his wife
1 Papers Relating to the Treaty of Washington^ IV. 469.
« March 29, 1893.
Digitized by LjOOQIC
THE GENEVA ARBITRATION. 681
desired to keep secret, in the hope that he would recover.
'<The papers relating to the Alahama^^ says Dr. Marshall,
" were sent on from the address in London to Monmouth, and
were opened by Lady Harding, who managed to put off send-
ing any reply for three or four days, when a second and more
urgent communication compelled her to reveal that her hus-
band was not in a state of mental health to enable him to
reply."
Lord Selbome, replying to thcvse vstatements, says that while
he does not doubt that Sir Fitzroy Kelly related to Dr. Mar-
shall the story the latter remembered, he was convinced that
Sir Fitzroy Kelly could not have been accurate when he sup-
posed Sir John Harding to have been in Monmouthshire at the
time in questioTi, and the papers relating to the Alabama to
have been opened there by Lady Harding and sent up to the
Foreign Office by her on receipt of "a second and more urgent
communication," with the explanation that her husband was
not in a state of health to enable him to reply. If this had
taken place. Lady Harding's letter would, said Lord Selborne,
have been in the possession of the Foreign Office; and there
were more occasions than one on which it would have been
useful, and would certainly have been brought forward if it
had been received. From his communications with Lord Rus-
sell, Lord Hammond, and Sir Henry Layard, on several occa-
sions, Hammond and Layard being under secretaries, he was
satisfied that no such letter was ever received by that office.
And Sir Henry Layard believed that the papers were obtained
from Sir John Harding's private residence in London by the
help of a gentleman whom he (Sir H. Layard) named, now
dead. In conclusion, Lord Selborne says :
"1 can not, of course, take upon myself to say that Sir John
Harding may not have been in Monmouthshire during some
part of the month of July 1862, over the whole of which
his illness may in a greater or less degree have extended, as
the latest opinion which he signed for the Foreign Office was
dated on the .*30th of June that year. But 1 have always,
since the time in question, understood that he was actually
under care for an acute mental disorder at the time when the
pai)ers were sent for the law oflii^ers' o])inion on the 23d and
26th of July 1S62, and I have always believed, and still believe,
that he was then in London."
The curious incident thus discussed is interesting as showing
that the escape of the Alabama was, so far as the foreign office
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682 INTERNATIONAL ARBITBATI0N8.
was concerned, in a certain sense the result of an accident,
bat it does not affect the question of the British Government's
liability for the acts of the Alabama. While it may be argued
that the exercise of a ^^dne diligence" would not have per- .
milted so great and momentous a delay to result from one law
officer's illness, it is also true that the vessel should have been
seized before her de[)arture from Birkenhead, as well as after-
ward, by the customs authorities, to whom the duty of seizing
her specially <appertained, and who were competent to act inde-
pendently of any other department of the government. Such
was the opinion expressed by Sir Alexander Cockbuni, the
British arbitrator.^
^ Papers Relating to the Treaty of WashiDgtoo, IV. 460. DiscuMions of
the Geneva Arbitration or of the questions involved in it will be foand
in the following publications : Pradier-'Fod<^r<^, La Question de TAlabama
et le Droit des Gens; Rivier, L' Affaire de F Alabama et le Tribunal Arbitral
de Geiu've; Rolin-Jacquemyns, in the Revue de Droit Int., 1873; Ronard
de Card, Les Destinies di". PArbitrage International, 75; Kamarowski, Le
Tribunal International, 214; Calvo, Le Droit Int., 4th ed. III. 448; Fiore,
Nouveau Droit Int. Public, I. 130, 135; III. 464; De Martens, Traits de
Droit Int., III. 141; De Neumann, Droit des Gens Modeme, 139; Funck-
Brentano et Sorel, Prdcis du Droit des Gens, 459.
Certain facts which have heretofore escaped notice may be mentioned
in this note. An invitation to act as counsel for the United States at
Geneva was extended to Mr. William M. Meredith, of Pennsylvania, and
on the same day to Mr. Cushing. Mr. Meredith seems to have thought of
serving, but eventually found himself unable to do so. (Mr. Fish, Sec. of
State, to Mr. Meredith, October 16, 1871.) October 25, 1871, Mr. Evarta
and Mr. B. R. Curtis were asked to Kerve coigointly with Mr. Cushing,
but Mr. Curtis was unable to accept. November 18, 1871, the services of
Mr. Waite were solicited.
The room in which the meetings of the Geneva tribunal were usually
held was called the ** Salle des Mariages."
A picture of the Joint High Commission, painted by Mr. Frank B. Car-
penter, of New York, and entitled ''International Arbitration, Washing-
ton, 1871,'^ oame in 1891 into the possession of Her Britannic Migesty.
Digitized by LjOOQIC
CHAPTER XV.
CIVIL WAR CLAIMS: TREATY BETWEEN THE
UNITED STATES AND GREAT BRITAIN OF MAY
8, 1871.
In the formal correspondence that preceded
^TicLtoT^ the meeting of the Joint High Commission, by
which the Treaty of Washington of May 8,
1871, was negotiated, Sir Edward Thornton, when Mr. Fish
proposed that the Alabama claims should be included among
the subjects to be treated of, replied that it would give Her
Majesty's government great satisfaction to submit those claims
to the consideration of the commission, "provided that all
other claims, both of British subjects and citizens of the United
States, arising out of acts committed during the recent civil
war in this country', are similarly referred to the same commis-
sion.^'^ To this proposal the United States assented.^
In his instructions to the British commis-
"AUbMn^^Oai ^ sioners, Lord Granville expressed the expec-
' tatiou that the United States "would readily
consent to all claims of British subjects against the United
States, or of United States citizens against Great Britain, be-
ing referred to a mixed commission, formed of one commissioner
for each country and an umpire, as was done under the con-
vention of the 8th of February 1853.^" In the category of
claims of citizens of the United States, as used in this passage,
the Alabama claims were not included. They were discussed
in another part of the instructions. And wherever in this
chapter a reference is made to claims against Great Britain,
growing out of acts committed during the civil war, only claims
other than the Alabama claims will be intended.
» February 1, 1871, For. Rel. 1873, part 3, 266.
«Mr. Fish to Sir Edward Thornton, February 3, 1871-, For. Kel. 1873.
part 3, 267.
3 February 9, 1871, For. Rel. 1873, part 3, 376.
683
Digitized by VjOOQ IC
684 INTERNATIONAL ARBITRATIONS.
Mr. Fish appears to have contemplated the
AnaiyiU of ciaiini. possibility of a settlement of the claims now
in question by the Joint High Commission,
directly and conclusively, as between the two governments.
In his acceptance of Sir Edward Thornton's proposal he
suggested that the high commissioners should "consider only
such claims" as might be "presented by the governments of
the respective claimants at an early day, to be agreed upon
by the commissioners,"* and in the confidential memorandum
with which the American high commissioners were furnished
there was an exposition of the principles on which the claims
should be examined.' In this memorandum the claims of Brit-
ish subjects were discussed uuder three heads —
1. The injuries inflicted by the Confederate authorities or by
private citizens of the Confederacy.
In respect of thi$ class of claims the general proposition was
laid down "that no government is responsible for injuries done
to the inhabitants of the country, whether citizens or foreign-
ers, by rebels or by alien enemies exercising in the particular
locality or for the time being superior force against such
government."^
2. Claims growing out of captures by United States cruisers.
dn the subject of these claims a passage from Lord Mans-
field's memoir on the Silesian loan was cited, in which the
ground is maintained tluit " all a foreigner can desire is that
justice should be impartially administered to him, as it is to
the subjects of that prince in whose courts the matter is tried."
3. Claims for arbitrary arrests, compulsory military service,
and other alleged violations of the personal rights of British
subjects.
This subject was, said the memorandum, treated with sucli
general candor and fairness by Prof. Mountague Bernard, in
« For. Rel. 1873, part 3, 268.
« For. Rel. 1873, part 3, 362.
'On this proposition the following citAtionn were made: Lord Stanley,
June 17, 1870, Hansard, 3d series, III. 1306; Huiberford's Institutes, 509;
Vattel, Book 2, ch. 6, sec. 73; Phillimore Int. Law, J. sec. 218; Calvo,
Dereclio Internacional, I. 387; Torres Caicodo, Union Latino-Americano,
343, 348 (dispatches of Prince Scli wart zt»n berg to Baron Hotter, April 14,
1850, and Connt Nesselrode to Baron Bninnow, May 2, 1850); Mauran v.
Insurance Co., 6 Wallace, 14; Opinions of At. Gen. XII. 21; Mr, Marcy to
the Count de Sartiges^ Sen. £x. Doc. 9, 35 Cong. 1 seas*
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CIVIL WAR CLAIMS. 685
Chapter XVI. of his Neutrality of Great Britain during the
American Civil War, and by Mr. Abbott, in bis appendix to the
report of the royal commission on naturalization and allegiance,
that it seemed unnecessary to do more than refer to those pub-
lications. Attention was, however, called <'to some of the
authorities which established the liabiUty of persons domiciled
for commercial purposes in a belligerent region to be treated as
indistinguished from the active enemies iu the midst of whom
they are found.'''
The diplomatic correspondence in regard to these various
classes of claims during the progress of the civil war may be
consulted chiefly in the series entitled "Diplomatic Corre-
spondence," published by the Government of the United
States, beginning with the year 1861. In the publication for
the year 1864' there is a reprint of a British blue book relating
to the " Claims of British subjects against the United States
Government from the commencement of the civil war to the 3()th
of March 1864." In regard to the contents of this blue book,
the confidential memorandum given to the American high com-
Qiissiouers made the following observations :
<^An analysis of that document shows the following results:
*' Three hundred and twenty-one cases of the 450 therein
enumerated have been disposed of.
" Of these, 43 were cases in which the British Government
refused to interiere, on the advice of the law ofiicers of the
Crown.
" One hundred and sixty-seven cases have been condemned
by the prize courts of the United States. With the exception of
one case, that of the Springbok, the Department of State is not
aware of a disposition on the part of the British Government
to dissent to any final adjudication of the Supreme Court of
the United States in a prize case. The Supreme Court has in
several cases reversed condemnations made by the inferior
tribunals of prizes, in some of which Congress has made
appropriations for the indemnification of the owners of the
property captured.
" In most of the cases where it is stated that vessels have
been condemned, but that appeals are pending, the condemna-
tions by the courts below have been sustained.
Uvent'8 Comm. I. *75; Wildman, Int. Law, II. 49, 78; PhUlimore, Int.
Law, III. 128 ; Calvo, Derecho Int. 1. 292 ; The Pizarro, 2 Wheat. 246; Laur-
ent's Case, report of commission under treaty of 1853, 120; Earl Granville
to Lord Lj^ons, January 11, 1871, Bine Book No. 4 for 1871| Frauco-Germau
War.
« Part 1,736.
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686 INTERNATIONAL ARBITRATIONS.
" 111 63 cases it appears that property taken by the United
States has been restored, and that persons imprisoned, or said
to have been illegally enlisted, have been released.'' *
Such wjis the apparent state of the British
ProceedisgB of the claims at the time of the meeting of the Joint
i^Mion^ ™' ^^S^ Commission. The proceedings of that
body on the subject are sufficiently detailed in
the protocols of its conferences, as follows:
*'At the conference on the 4th of March it was agreed to
consider the subjects refeired to the Joint High Commission
by the respective governments in the order in which they
appeared in the correspondence between Sir Edward Thornton
and Mr. Fish, and to defer the consideration of the adjustment
of 'all other claims, both of British subjests and citizens of the
United States, arising out of acts committed during the recent
civil war in this country,' as described by Sir Edward Thornton
in his letter of February 1, until the subjects referred to in the
previous letters should have been disposed of.
''The American commissioners said that
Claims for Slaves, they supposed that they were right in their
opinion that British laws ])rohibit British sub-
jects from owning slaves ; they therefore inquired whether any
claims for slaves, or for alleged property or interest in slaves,
can or will be presented by the British Government, or in
behalf of any British subject, under the treaty now being
negotiated, if there be in tlie treaty no express words exclud-
ing such claims.
"The British commissioners replied that by the law of Eng-
land British subjects had long been prohibited from purchas-
ing or dealing in slaves, not only within the dominions of the
British Crown but in any foreign country; and that they had
no hesitation in saying that no claim on behalf of any British
subject, for slaves or for any property or interest in slaves,
would be presented by the British Government.
"Referring to the paragraph in Sir Edward
Fenian Balds. Thornton's letter of Jaiuiary 26, relating to * the
mode of settling the ditterent questions which
have arisen out of the Fisheries, as well as all those which
afTect the relations of the United States towards Her Majesty's
Possessions in North America,' the British commissioners i)ro-
posed that the Joint High Commission should consider the
claims for injuries which the people of Canada had suffered
from what were known as the Fenian raids.
"The American comnrissioners objected to this, and it was
agreed that the subject might be brought up again by the
British commissioners in connection with the subject referred
to by Sir Edward Thornton in his letter of February 1.
» For. Rel. 1873, part 3, 367.
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CIVIL WAR CLAIMS. 687
"At the confereuce on the 14th of April the
^^'^StidefT'^"^ Joint High Commission took into consicleration
the subjects mentioned by Sir Edward Thorn-
ton in that letter.
"The British commissioners proposed that a commission for
the consideration of these claims should be appointed, and
that the convention of 1853 should be followed as a precedent.
This was agreed to, except that it was settled that there should
be a third commissioner instead of an Umpire.
"At the conference on the 16th of April the Treaty Articles
XII. to XVII. were agreed to.
^ , . ^ - . "At the conference on the 26th of April the
^™T5J^ British commissioners again brought before
ciaimi. ^Yx^ Joint High Commission the claims of the
people of Canada for injuries suffered from the Fenian raids.
They said that they were instructed to present these claims and
to state that they were regarded by Her Majesty's Government
as coming within the class of subjects indicated by Sir Edward
Thornton in his letter of January 26, as subjects for the con-
sideration of the Joint High Commission.
"The American commissioners replied that they were in-
structed to say that the Government of the United States did
not regard these claims as coming within the class of subjects
indicated in that letter as subjects for the consideration of the
Joint High Commission, and that they were without any au-
thority from their government to consider them. They there-
fore declined to do so.
"The British commissioners stated that, as the subject was
understood not to be within the scope of the instructions of the
American commissioners, they must refer to their government
for further instructions upon it.
"At the conference on the 3d of May the British commis-
sioners stated that they were instructed by their government
to express their regret that the American commissioners were
without authority to deal with the question of the Fenian raids,
and they inquired whether that was still the case.
" The American commissioners replied that they could see
no reason to vary tlie rei)ly formerly given to this proposal;
that in their view the subject was not embraced in the scope
of the correspondence between Sir Edward Thornton and Mr.
Fish under either of the letters of the former; and that they
did not feel justified in entering upon the consideration of any
class of claims not contemplated at the time of the creation of
the present commission, and that the claims now referred to
did not commend themselves to their favor.
"The British high commissioners said that under these cir-
cumstances they would not urge further that the settlement
of these claims should be included in the present treaty, and
that they had the less difficulty in doing so, as a ])ortion of the
claims were of a constructive and inferential character."^
» For. Rel. 1873, part 3, 398.
Digitized by LjOOQIC
688 INTERNATIONAL AKBITRATIONS.
By the articles which were agreed to on the
Artideexn.-xvn., ^5^1^ ^f April, and which were duly inserted as
T^eaj^ of WaA- j^^^^^^^ xil. to XVIL, inclusive, in the treaty
concluded May 8, 1871, the high contracting
parties stipulated that '^all claims on the i)art of corporations,
companies, or private individuals, citizens of the United States,
upon the Government of Her Britannic Majesty, arising out of
acts committed against the persons or property of citizens of
the United States during the period between the 13th of April
1861, and tiie 0th of April 1865, inclusive," not being claims
growing out of the acts of the vessels that gave rise to the
claims generically known as the Alabmna claims, '^and all claims
with the like exception on the part of corporations, companies,
or private individuals, subjects of Her Britannic Majesty, upon
the Government of the United States, arising out of acts com-
mitted against the persons or property of subjects of Her Bri-
tannic Majesty during the same period, which may have been
l)resented to either Government for its interi)osition with the
other, and which yet remain unsettled, as well as any other such
claims whicli may be presented within the time sx)ecified in
Article XIV. of this Treaty, shall be referred to three Commis-
sioners, to be appointed in the following manner — that is to
say: One commissioner shall be named by tlie President of the
United States, one by Her J^ritannic 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 ratifications of this Treaty, then the
third commissioner shall be named by the Kepresentative at
Washin4fton of His Majesty the King of Spain."
Article XIV., which is referred to for the
^*™ta^^" mai *" P^^P^^^® ^^ defining the time allowed for the
presentation of claims, is expressed in substan-
tially the same terms as Article III. of the convention of Feb-
ruary 8, 1853. It provides that " every claim shall be presented
to the commissioners within six months from the day of their
first meeting, unless in any case where reasons for delay shall
be established to the satisfaction of the commissioners, and
then, and in any such case, the period for presenting the claim
may be extended by them to any time not exceeding three
months longer;" and it further empowers the commissioners
in each case to determine whether a claim has been duly laid
before them.
Digitized by LjOOQIC
Bnratioii of Ctommii-
CIVIL WAR CLAIMS. 689
The commissioners were required to meet in
the city of Washington, and, before proceeding
to any business, to ^' make and subscribe a sol-
emn declaration that they will impartially and carefully examine
and decide, to the best of their judgment, and according to jus-
tice and equity,'^ the claims laid before them. They were also
required to examine and decide upon every claim within two
years from the day of their first meeting.
It was provided that the commissioners
Older of Piooednre. should investigate and decide the claims pre-
sented to them '<in such order and in such
manner as they may think proper, but upon such evidence or
information only as shall be furnished by or on behalf of the
respective governments;" and that they should "be bound
to receive and consider all written documents or statements
which may be presented to them by or on behalf of the respec-
tive governments in support of, or in answer to, any claim, and
to hear, if required, one person on each side, on behalf of each
government, as counsel or agent for such government, on each
and every separate claim.'^
A majority of the commissioners was made
Majority Dedfum. Sufficient for an award in each case ; and it was
provided that the award should be given upon
each claim in writing, and should be signed by the commission-
ers assenting to it.
It was made "competent for each govern-
^^^" ^ ' ment to name one person to attend the com-
missioners as its agent to present and support
claims on its behalf, and to answer claims made upon it, and
to represent it generally in all matters connected with the
investigation and decision thereof.'' The commissioners were
authorized to "appoint and employ a secretary, and any other
necessary officer or officers, to assist them in the transaction of
the business that may come before them."
It was provided that each government should
Szpensef. pay its own commissioner and its own agent
or counsel; that all other expenses should be
defrayed by the two governments in equal moieties; and that
the whole expenses of the commission, including contingent
expenses, should be defrayed by a ratable deduction on the
amount of the sums awarded by the commissioners, provided
always that such deduction should not exceed the rate of 5 per
cent, on the sums so awarded.
5627 44
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690 INTERNATIONAL ARBITRATIONS.
All sums of money which might be awarded
^'^^^^Trf^lwiii^ against it, each government was required to
pay within twelve months after the date of the
final awards without interest, and without any deduction save
that specified in respect of expenses.
The high contracting parties engaged "to
Besnlts of ^«po"J- consider the decision of the commissioners
minion to be Finftl.
as absolutely final and conclusive upon each
claim decided by them, and to give full effect to such decisions
without any objection, evasion, or delay whatsoever ; " " to con-
sider the result of the proceedings of this commission as a full,
perfect, and final settlement of all such claims as are mentioned
in Article XII. of this treaty upon either government;^ and
further to treat "as finally settled, barred, and thenceforth
inadmissible" "every such claim, whether or not the same may
have been presented to the notice of; made, preferred, or laid
before the said commission."
The Hon. James Somerville Frazer, of War-
Appointment of gj^^^ ^^^^ ^f Indiana, and formerly a justice
^^OT^TOn**^^ of the supreme court of that State, was ap-
pointed as commissioner on the part of the
United States.*
The Eight Hon. Russell Gurney, M. P., a member of Her
Majesty's privy council and recorder of Loudon, was appointed
commissioner by the Queen of Great Britain.*
Count Louis Oorti, envoy extraordinary and minister pleni-
potentiary to the United States of His Majesty the King of
Italy, was appointed third commissioner by the President and
the Queen conjointly.^
As agent on the part of the United States, the President
named Mr. Robert Safford Hale, of the State of New York.
Mr. Hale also acted as counsel for the United States.
Mr. Henry Howard, one of the secretaries of the British lega-
tion in Washington, discharged the duties of agent for Great
Britain.
Mr. James Mandeville Carlisle, of Washington, acted as
counsel for the British Government.
I For. Rel. 1871, 481, 494.
3 For. Rel. 1871, 481, 492.
3 Sir Edward Thornton suggested Connt Corti on his own responsibUity ;
the President accepted, and the Qaeen approved. The Italian Government,
on being requested to do so, consented to Count Corti's aocepting the trust.
(For. Kel. 1871, 479, 480, 484.)
Digitized by LjOOQIC
CIVIL WAR CLAIMS. 691
The oommissioners, agents, and counsel above named con-
tinned in the discharge of their respective functions till the
close of the commission.
The first meeting of the commission was
^^°^^^J^^^^^°" held at the Department of State, in Washing-
ton, September 26, 1871.
Count Gorti, on the formal request of his associates, assumed
the presidency of the commission.
Mr. Thomas Campbell Oox, a clerk in the
Appom^ent of Seo- Department of State, was offered the post of
secretary, and after a day's delibration ac-
cepted it, Mr. J. D. McPherson having acted as secretary pro
tern, in the mean time.
Bules and regulations for the transaction of
Bides of Procedure, business, which were drawn up by counsel,
were . submitted to the commissioners and
adopted by them. From time to time such amendments were
made as circumstances seemed to require.
After the 27th of September 1871 the com-
***"T^^ ' "^issio^^rs held their oflQcial meetings at No.
703 Fifteenth street Northwest, in a house
which was by their order rented and fitted up as an office.
On the 12th of November 1872, however, having ascertained
that there was no probability of their business being com-
pleted before the following summer, they requested the agents
to communicate with their respective governments with a view
to the adoption of measures which would authorize the com-
mission to sit in some other place than Washington, in order
that it might end its labors within the time limited by the
treaty.
On the 18th of January 1873 an additional
Seanons at Hewport article to the treaty was signed, by which it
was provided that the sessions of the commis.
sioners need not be restricted to Washington, but might be
held at such other place in the United States as the commis-
sion might prefer. The ratifications of this article having been
duly exchanged, the commission decided to remove to New-
port, in the State of Rhode Island. On May 10, 1873, it held
its last session in Washington, adjourning on that day to meet
in Newport on the 3d of the following month. Having met on
that day, pursuant to adjournment, the commission continued
in session at Newport tiU the completion of its labors, on the
Digitized by LjOOQIC
692 INTERNATIONAL ARBITRATIONS.
25th of September 1873, when it rendered a final award against
the United States for the amount of the varions sums awarded
against that government.
Both Mr. Hale and Mr. Howard made fhll
^^^^ ® reports to their respective governments of the
proceedings of the commission. Mr. Hale's
report was published at the Government Printing Office in
Washington in 1874, and it forms a part of the third volame
of the Foreign Relations of the United States tor 1873. Mr.
Howard's report was presented to Parliament in 1874, and
was printed as Blue Book " North America No. 2 (1874).'*
Notices in regard to the presentation of
®*V^ claims to the commission were published both by
the United States and by Great Britain.* On
or before the 26th of March 1872, which was the last day for
the regular presentation of memorials -under the treaty, there
were filed in the office of the secretary of tbe commission 421
British claims and 18 American. In the next three months,
ending on the 26th of June 1872, during which new claims
might be presented only with the permission of the commis-
sioners, 57 additional British claims and 1 American claim
were filed, making in all 478 British claims and 19 American
before the commission.
The British claims, exclusive of interest, amounted to about
$60,000,000, and, including interest for the average time al-
lowed by the commission, to about $96,000,000. The Ameri-
can claims amounted to a little less than $1,000,000, exclusive
of interest.
Of the 478 British claims presented, 259 were for property
alleged to have been taken by the military, naval, or'civil
authorities of the United States and appropriated to the use
of tlie government; 181 were for property alleged to have been
destroyed by the military and naval forces of the United
States; 7 were for property alleged to have been destroyed by
the Confederate forces; 100 were for damages for alleged un-
lawful arrest and imprisonment of British subjects by the
authorities of the United States; 77 were for damages for the
alleged unlawfal capture and condemnation or detention of
British vessels, and their cargoes, as prize of war by the naval
I Howard's Report, 253-286.
Digitized by LjOOQIC
CIVIL WAR CLAIMS. 693
forces and civil authorities of the United States; 3 were for
damages for the alleged unlawful warning off of British vessels
by United States cruisers from coasts and ports not at the
time lawfully blockaded, and 34 were of a miscellaneous char-
acter. The records of the commission show that the sum of
the different classes of claims exceeded the entire number of
memorials filed. This circumstance is accounted for by the
fact that one memorial sometimes included two or more claims
falling under different classes.^
In the disposition of the British claims by
^"^^^ the commission, 1 was dismissed on account
of indecorous language in the memorial, with-
out prejudice to the presentation of a new memorial, which was
subsequently filecl; 28 were dismissed for want of jurisdiction;
260 were disallowed on the merits; 8 were withdrawn by the
British agent by leave of the commission, and 181 were
allowed, the awards in favor of the claimants amounting to
$1,929,819.
Of the claims of citizens of the United States against Great
Britain, 12 grew out of the St. Albans raid, and were for acts
of plunder alleged to have been committed in the town of St.
Albans, Vermont, in October 1864 by Confederate soldiers who
came by way of Canada; 1 was for a similar raid alleged to
have been executed on the American steamers Philo Parsons
and Island Qtieen on Lake Erie in September 1864; 4 were
for damages for the alleged unlawful detention of vessels laden
with saltpeter at Calcutta in January and February 1862,
under ordinances issued by the governor-general of India pro-
hibiting the exportation of that article; 1 was for injuries to
property on San Juan Island in 1862 and 1864 by the alleged
act or procurement of the commander of the British forces on
the island during its joint military occupation by the United
States and Great Britain, and 1 was for a royalty claimed
from the British Government for the use by that government
of an invention for the improvement of breech-loading firearms.
All the American claims were dismissed.
The entire number of cases, American and British, decided
by the commission, after deducting the eight claims that were
withdrawn by the British agent, was 489.
1 Hale's Report, 9.
Digitized by LjOOQIC
694 INTERNATIONAL ARBITRATIONS.
In Howard's report^ there i8 the following tabalar state-
ment of tlio manner in which the awards were made:
1. Unfavorable aicards in British cases. — 27ti signed by the
three commissioners; 17 signed by Commissioners Corti and
Frazer only.
2. Unfavorable awards in American cases. — 15 signed by the
three commissioners; 4 signed by Commissioners Corti and
Garney only.
3. Favorable aicards in British cases. — 85 signed by the three
commissioners; 94 signed by Commissioners Corti and Gnmey
only; 2 signed by Commissioners Corti and Frazer only.
Among the British claims unanimously dis-
***^ bok'' ^™*" ^^^^^®^ ^y *^® commission was that for the
cargo of the bark Springbol-j which was con-
demned, together with her cargo, by the district court of the
United States at New York.^ The Supreme Court of the United
States reversed the decree as to the vessel, but affirmed it as to
the cargo.' Damages were claimed before the commission both
for the detention of the vessel and the condemnation of the
cargo. The commission unanimously awarded t5,065 for the
detention of the vessel from the date of the decree of the dis-
trict court to the date of her discharge under the decree of tlie
Supreme Court.^ The claim for the cargo was unanimously
disallowed. This case has provoked more discussion than any
other prize case that arose during the civil war. The Spri$ig-
bok was captured while ostensibly on a voyage from London to
the British port of Nassau, in New Providence, before she
had reached her port of destination, on the ground that she
intended to run the blockade of the Confederate ports. The
Supreme Court found that Nassau was her real destination,
and therefore acquitted her, but affirmed the condemnation of
the cargo on the ground that it was intended to find its way to
some Confederate port, all Confederate ports being at the time
under blockade. The doctrine of continuous voyages was thus
applied to the cargo as distinct from the vessel on which it was
borne at the time of capture, and the character of the cargo
was adduced as evidence of its belligerent destination.' A
' Howard's Report, 5.
sBlatch ford's Prize Cases, 434.
35 Wallace,!.
* Hale's Report, 122.
•Wharton's Int. Law Digest, III. 394.
Digitized by LjOOQIC
CIVIL WAR CLAIMS. 695
brief of remarkable power, discussing the facts as well as the
law of the case, was prepared by Mr. William M. Evarts for
the claimant of the cargo before the commission. This brief,
however, was not filed till late in August 1873, when the com-
mission was striving to complete the business before it within
the few weeks that remained of its existence. A full report
of the case will be found in the accompanying digest.
The question of the liability of the United
^* ^D^?*"^ States for debts contracted by the Confederacy
was raised by the presentation to the commis-
sion of a claim against the United States for the payment of a
"cotton-loan bond" purchased by the claimant in 1864. Mr.
Hale, deeming the claim not to be within the terms of the
treaty, laid the matter before the Department of State, and
the British Government was asked to cause the claim to be
withdrawn. This request not having been complied with, Mr.
Hale moved that the claim be dismissed for want of jurisdic-
tion. December 14, 1871, the commission unanimously dis-
missed the claim on the ground " that the United States is
not liable for the payment of debts contracted by the rebel
authorities.^
Oeneni Charaetar ^® ^ *^® general character and conduct of
and Conduct of the business before the commission, Mr. Hale in
BngineM. Lis report' makes the following observations:
<^ The claim as presented by the claimant in his memorial and
proofs often gave the first and only information to the govern-
ment of the existence even of the claim, and involved an inquiry
into the facts of the case through very circuitous and difficult
channels. In such cases the government always stands at a
great disadvantage as against private claimants, who have full
knowledge .of all the circumstances of their own claims, when
actual and bona fide^ and of the proofs by which they may be
established, and who, in the case of fraudulent, simulated, or
excessive claims, have facilities in the manufacture of evidence
often very difficult to be exposed or rebutted by the agents
charged with the defense of the government, and acting
through secondary agents often at remote and almost inacces-
sible points.
" In view of the number and amount of the claims presented,
and the importance of the questions to be determined, the time
limited by the treaty for their examination and decision was
very short. Two years for the complete examination, trial, and
decision of all these cases, nine months of which time was
allowed (six absolutely, and three under limitation) for the
2 Hale's Report, 4-6.
Digitized by LjOOQIC
696 INTERNATIONAL ARBITRATIONS.
presentation of the claims by the claimant, constitated a shorter
time than should have been taken for the thorough and satis-
factory examination of all the cases.
" The fact that in this scanty time the government was en-
abled to make the examination and trial of the cases as thor-
ough as it was made, and to arrive at results so satisfactory, is
certainly a subject of congratulation, the awards maile by the
commission against the United States amounting to only about
two per cent, of the claims presented to.the commission against
them.
"The entire expense of the commission in-
EzpensM. curred by the United States, including com-
pensation of commissioners and officers of the
commission, of the agent and counsel before the commission
and his assistants and clerks, of counsel, agents, commissioners,
witnesses, &c., in taking testimony, and also printing and
incidental expenses, has been about $300,000, of which amount
about $50,000 will be reimbursed by the deduction from the
amount of the awards, pursuant to Article XVI. of the treaty.
All the memorials, evidence, and arguments were printed for
the use of the commission, the expense of printing being bonie
jointly and equally by the two governments. The entire printed
matter thus submitted, and now collated and bound, makes up
seventy-four octavo volumes, averaging about 800 pages each.
"In an early case before the commission, in-
AModate Couiuwi. volving the question of the eflfect of domicile
within the United States upon subjects of
Great Britain, by paramount allegiance, domiciled within the
United States, Hon. Bbenezer Eockwood Hoar, of Massachu-
setts, was retained by the government at my request as asso-
ciate counsel, and filed a very learned and valuable argument.
In a few other cases, not exceeding fifty in all, I was assisted
in the preparation of arguments by Gen. Benjamin S. Eoberts
and by Messrs. Edwin L. Stanton and A. S. Worthington, of
Washington, whose services were faithfully rendered and were
very valuable. With these exceptions the arguments in all the
British cases were prepared solely by myself.
^<In the taking of testimony a large number
Taking of Testimony, of counsel and agents were employed, under
my supervision, in the localities where testi-
mony was taken as above related. Among those who have
rendered faithful and efficient service in this way, I deem it not
invidious to mention Messrs. Kortrecht, Craft & Scales, of Mem-
phis, Tenn. ; Messrs. M. A. Dooley and William G. Hale, of New
Orleans, La.: Franklin H. Churchill, esq., of New York City;
Hon. D. H. Chamberlain, of Columbia, S. C; Marcus Doherty,
esq., of Montreal, P. Q., Canada; Hon. Andrew Sloan, of Savan-
nah, Ga. ; Horatio D. Wood, esq., of St. Louis, Mo. ; Frederick C.
Hale, esq., of Chicago, 111. ; Messrs. Speed & Buckner, of Louis-
ville, Ky.; Messrs. Bradley & Peabody, of Nashville, Tenn.;
and Gteu. H. B. Titus, of Washington, D. O.
Digitized by LjOOQIC
CIVIL WAR CLAIMS. 697
a 1*1-. ^ A *' Thomas II. Dudley, esq., late consul of the
SpecaalAcknowiedg- ^j^j^ed States at Liverpool, and Joseph Nunn,
ments of Aid. ^^^^^ United States vice- con sal- general at Lon-
don, also contributed largely, by their knowledge of the differ-
ent cases, and their diligence and assiduity in inquiry and
report upon the claims, to the successful defense of the United
States against many of the prize cases.
^^ In this connection, too, I should not fail to make mention
of the diligence, skill, and assiduity of Mr. Edward Hayes, my
stenographic clerk, during the whole period of my agency.
*'In conclusion, 1 can not forbear the expression of my great
satisfaction with the working of the commission, its perform-
ance of its arduous duties, and the result of its labors. The
thanks of both governments will undoubtedly be fully expressed
to the individual commissioners.
"My personal acknowledgments are especially due to his
excellency Count Oorti, the presiding commissioner, for the
marked and unfailing courtesy, kindness, and consideration
which I, in common with every other person connected with
the commission, received from him throughout the whole period
of our official intercourse. The wide knowledge of public law,
the sterling good sense and judgment in its application to the
facts of individual cases, the untiring labor bestowed in the
investigation alike of facts and principles, and the able, diligent,
and conscientious application of his powers, attainments, and
labors to the examination and decision of the cases before the
commission, merit recognition and acknowledgment from the
governments so largely indebted to him for the satisfactory
disposition of the numerous vexed questions between them sub-
mitted to the arbitrament of himself and his colleagues, to an
extent to which these expressions of mine do scant and feeble
justice.
"Mr. Justice Frazer, the commissioner named by the Presi-
dent of the United States, by his ability, impartiality, urban-
ity, and diligence, fully justified the wisdom of the President's
selection and the expectations of those previously acquainted
with his judicial abilities and career.
"I beg, also, to express my profound appreciation of the dili-
gence, faithfulness, and ability exhibited by Mr. Howard, Her
Majesty's agent, and by Mr. Carlisle, Her Majesty's counsel, in
the management of the cases before the commission on behalf
of the British Government, and to acknowledge my personal
obligations to each of those gentlemen for their unfailing
courtesy and fairness.''
Separate awards in duplicate were made by
aad'riiuiL™ the commissioners in respect of each claim, as
the cases were disposed of.
On the last day of their session they made a final award,
which was signed by all the commissioners.
Digitized by LjOOQIC
698 IKTEBNATIOKAL ARBITRATIONS
The duplicate originals of the final award and the duplicate
originals of the particular awards were delivered by the com-
mission, through its secretary, to the respective governments,
together with duplicate journals of the entire proceedings,
kept by the secretary and certified from day to day by the pre-
siding commissioner.
The final award of the commission is as follows:
"Oppioe op the Mixed Commission on
"British and American Claims,
" Under the Treaty op May 8, 1871,
^^ Newport R. I., September 25 j 1873.
^^ The undersigned Commissioners appointed under the Xllth
Article of the Treaty signed at Washington on the 8th day of
May 1871, between the United States of America and Her
Britannic Majesty, do now make their
"PINAL AWARD
of and concerning the matters referred to them by said Treaty
as follows, that is to say: —
" We award that the Government of the United States of
America shall pay to the Government of Her Britannic Mjyesty,
within twelve months from the date hereof, the sum of 1,929,819
dollars, in gold, subject to the deduction provided for by Article
XYI. of the Treaty aforesaid, for and in full satisfaction of the
several claims on the part of corporations, companies, or private
individuals, subjects of Her Britannic Majesty, upon the Gov-
ernment of the United States, arising out of acts committed
against the persons or property of subjects of Her Britannic
Majesty, during the period between the 13th day of April 1861
and the 9th day of April 1865, inclusive: said sum l^ing the
aggregate of the several separate awards upon such claims,
mi^e in writing, in duplicate, and signed by ns or such of us
as assented to said separate awards.
"And all other such claims on the part of subjects of Her
Britannic Majesty against the United States which have been
presented and prosecuted for our award, have been and are
hereby disallowed or dismissed, in manner and form as will
appear by the several separate awards in writing concerning
the same, signed as aforesaid.
^' Certain other claims on the part of subjects of Her Britannic
Majesty against the United States were also presented, but
were afterwards, and before any award was made thereon, with-
drawn by the Agent of Her Britannic Majesty, as will appear
by the record of the proceedings of the Commission, kept in
duplicate, and which will be delivered to each Government
herewith.
^^And we award that all claims on the part of corporations,
companies, or private individuals, citizens of the United States,
Digitized by LjOOQIC
CIVIL WAR CLAIMS. 699
upon tbe Government of Her Britannic Miyesty, arisinfi: oat of
acts committed against the persons or property of citizens of
the United States, between the 13th day of April 1861 and
the 9th day of April 1865, inclusive, not being claims growing
out of the acts of vessels referred to in the 1st Article of said
Treaty, have been and are hereby disallowed: separate awards
upon each of said claims having been made in writing in dupli-
cate, and signed by us, or such of us as assented to such sepa-
rate awards.
"And we refer to the several separate awards made and
signed as aforesaid, as a part of this our final award — it being
our intent that the proceedings of this Commission shall have
the force and effect named and provided in the XVllth Article
of said Treaty.
"L. OOETI,
"Russell Gurnet,
*^Jas. 8. Frazeb,
" Commissioners.^
The amount specified in the final award as
Payment ^Fin.1 ^^^ ^^^^ ^^^ United States to Great Britain
Award.
as the result of the decisions of the commis-
sion was duly paid in accordance with the terms of the treaty.^
Among the British subjects to whom awards
**iW)oniai* ^ ^®^® made by the commission was Augustine
E. McDonald, who obtained an allowance of
$197,190 on a cotton claim. Subsequently a bill in equity was
filed against him in the supreme court of the District of Colum-
bia by Thomas J. Phelps, and afterward by amendment Will-
iam White was made a party defendant. It appeared that in
1868 McDonard became a voluntary bankrupt in the United
States, and that Phelps was his assignee. In a schedule of
assets filed in February 1869 there was a << claim against Gen-
eral Osborne, of U. S. Army, and others," for burning 1,000 or
2,000 bales of cotton belonging to McDonald in Arkansas and
Louisiana in January and February 1865. In a duplicate
schedule the quantity was stated as 7,000 or 8,000 bales. This
claim was designated in the schedule as "worthless." In
March 1869 McDonald obtained his discharge, and afterward
Phelps, as his assignee, sold at public sale, under an order of
court, a lot of his accounts, notes, and judgments. At this
sale White purchased for McDonald, with money furnished by
him, all the uncollected accounts, including the cotton claim
described in the schedule, for the sum of $20.
1 For. ReL 1874, 570-572; Id. 1875, 1. 666w
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700 INTERNATIONAL ARBITRATIONS.
In his memorial to the commission McDonald alleged that
he purchased the cotton in the insurrectionary States uuder
permits from the Secretary of the Treasury and letters from
the President of the United States; that the laws authorizing
such permits were repealed before he could remove the cotton,
and that in consequence it was destroyed by the Federal Army.
These facts were not disclosed in the bankruptcy proceedings.
The bill in equity alleged that the claim thus presented to
and allowed by the commission, as arising from an apparent
breach of obligation by the United States, was not that de-
scribed in the schedule of assets; that tiie description in the
schedule and the designation of the claim as worthless were
calculated to mislead; that though the rules of the commis-
sion required all assignments of claims to be stated, none was
mentioned in the memorial, and that McDonald in fact recov-
ered on his original title and obtained the award upon it, and
not on that derived by purchase through White from Phelps
as assignee, and that the award ought to be paid to the
assignee for the benefit of the creditors.
The bill also set forth that McDonald had assigned the
award to White, and prayed for an injunction restraining them
or either of them from receiving the money, and for a decree
that the fund be held in trust for the creditors of McDonald,
subject to the rights of the assignee in bankruptcy.
Process was served on both McDonald anil White. They
answered, and the complainant filed a replication; and a tem-
porary injunction was awarded. Subsequently, by consent of
parties, a decree was made directing that one-half of the award
be received by the respondents to pay the expenses of prose-
cuting the claim, and that the other half be placed in the hands
of George W. Biggs as receiver. By consent of parties the
money was paid to him by the British agent, who was not a
party to tlie litigation and acted in the matter voluntarily.
The respondents then withdrew their answer and demurred
to the bill. The demurrer was sustained and the receiver was
directed to pay over to respondents the money in his hands.
From this decree the complainant took an appeal.
Before the Supreme Court of the United States the respond-
ents, supporting the judgment of the court below, argued (1)
that the sale of the claim to White and the Tatter's transfer of
it to McDonald were valid ; (2) that at the time of the sale the
claim was worthless, having only a i>ossibiIity of value; (3)
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CIVTL WAR CLAIMS. 701
that as the fdnd mast be considered as being in England^ no
interest in it passed to the assignee in bankruptcy; (4) that
the fund was uuder the control of the British Government for
purposes of distribution, and that the decree of a court of equity
in the United States could not operate upon it.
The appellant maintained (1) that McDonald had at the time
of his bankruptcy a valid claim against the United States; (2)
that this claim passed by the assignment; (3) that even if the
fund had been in England and in the hands of the British
Government, the parties were subject to the jurisdiction of the
court and could be compelled by process inpersoTiam to obey
its decree.
The court, Mr. Justice Swayne delivering the opinion, held
(1) that the claim passed by the assignment in bankruptcy,'
which under the law incsluded ^<all the estate, real and per-
sonal, of the bankrupt;" and (2) that without regard to the
question whether the order of sale of 1869 embraced the claim
under consideration, the sale was under the circumstances
invalid.
As to the objection that the suit was in effect a suit against
the British Government, the court said that the objection as-
sumed facts which had <^no existence;" that that government
was not, either in form or in substance, a party to the record;
that no final or coersive action was sought except against
McDonald and White; that though a receiver had been ap-
pointed, he " could do nothing without the voluntary concur-
rence " of the British agent ; that the money had been delivered
to the receiver by consent of parties; that no objection had
been heard **from any quarter" to placing the money in his
hands, and "certainly none" "in behalf of the sovereignty
whose rights are said to have been invaded." But even sup-
posing, said the court, that, as had been suggested, " the money
were in the British exchequer, at the seat of the home govern
nient, still the court below acquired jurisdiction of the parties
and of the cause, and had an important duty to perform." In-
ternational commissions usually decided only as to the validity
of the claim and the amount to be paid, and not as to. the own-
ership of the claim. "The validity of the claim," said the
court, "depends upon the law of nations; its ownership, upon
the local jurisprudence where the transfer is alleged to have
been made." Wherever the money was, the assignee was
entitled to have the question finally settled whether he or
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702 INTERNATIONAL ARBITRATIONS.
McDonald had the better right. ^^ Where the necessary par-
ties,'' the court concluded, " are before a court of equity, it is
immaterial that the res of the controversy, whether it be real
or personal property, is beyond the territorial jurisdiction of
the tribunal. • • • Without regard to the situation of the
subject-matter, such courts consider the equities between the
parties, and decree in personam according to those equities,
and enforce obedience to their decrees by process in per-
sonam, • • • The decree of the court below will be
reversed."
Mr. Justice Miller, with the concurrence of Mr. Justice Field,
dissented, on the ground (1) that the money in question was
awarded to Great Britain under the treaty; (2) that the courts
of the United States had no control "over the British Govern-
ment or its agents in the distribution of the fund awarded to
them ; " (3) that the record did not show that the fund in con-
troversy had ever been "voluntarily paid into court by the
agent of that government; " and (4) that the case constituted
"an indelicate attempt" by the courts of the country " to seize
in transitu^ for its own citizens," what the government had by
treaty "agreed to pay to another government for its subject"
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'^mtmmamm
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15
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CHAPTER XVI.
THE HALIFAX COMMISSION.
Among the sabjects discussed by the x>eace
Veg«tUitianiofl7a2. commissioners of the United States and Great
Britain at Paris in 1782, the two that were the
most strongly contested and the last disposed of were those of
the fisheries, and the compensation of the loyalists. The pro-
visional articles of peace were concluded November 30, 1782.
On the 25th of that month the British commissioners delivered
to the American commissioners a third set of articles, contain-
ing fresh prox>osals of the British ministry, and representing
the results of many weeks of negotiation. By the third article
it was prox>osed that " the citizens of the United States shall
have the liberty of taking fish of every kind on all the banks of
Newfoundland, and also in the Oulf of St. Lawrence; and also
to dry and cure their fish on the shores of the Isle of Sables and
on the shores of any of the unsettled bays, harbors, and creeks
of the Magdalen Islands, in the Gulf of St. Lawrence, so long
as such bays, harbors, and creeks shall continue and remain
unsettled; on condition that the citizens of the said United
States do not exercise the fishery, but at the distance of three
leagues from all the coast belonging to Great Britain, as well
those of the continent as those of the islands situated in the
Gulf of St. Lawrence. And as to what relates to the fishery
on the coast of the Island of Gape Breton out of the said gulf,
the citizens of the said United States shall not be permitted
to exercise the said fishery, but at the distance of fifteen
leagues from the coasts of the Island of Gape Breton." ^ This
proposal, by which the citizens of the United States were for-
bidden not only to dry fish on the shores of Nova Scotia, but
also to take fish within three leagues of the coasts in the Gulf
of St. Lawrence, and within fifteen leagues of the coasts of
Gape Breton outside of that gulf, was unacceptable to the
American commissioners. On the 28th of November, John
» Wharton's Dip. Cor. Am. Rov. VI. 74-76.
•703
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704 INTERNATIONAL ARBITRATIONS.
Adams drew up a counter project, which was submitted in a
conference of the commissioners on the following day. It
provided that the subjects of His Britannic Majesty and the
people of the United States should "continue to enjoy,
unmolested, the right to take fish of every kind, on the Grand
Bank, and on all the other banks of Newfoundland ; also in the
Gulf of St. Lawrence, and in all other places, where the inhabi-
tants of both countries used at any time heretofore to fish,"
and that the citizens of the United States should " have liberty
to cure and dry their fish on the shores of Cape Sables, and
any of the unsettled bays, harbors, or creeks of Nova Scotia,
or any of the shores of the Magdalen Islands, and of the
Labrador coast;" and that they should be "permitted, in time
of peace, to hire pieces of land, for terms of years, of the legal
proprietors, in any of the dominions of his Majesty, whereon to
erect the necessary stages and buildings, and to cure and dry
their fish." 1
One of the British commissioners objected
The Trea^ of 1782- ^ ^^^ ^^^^ ^^ ^^^ ^^^^ ^.^^^^^ j^ respect of the
taking of fish on the Grand Bank and other
banks of Newfoundland, in the Gulf of St. Lawrence, "and in
all other places, where the inhabitants of both countries used
at any time heretofore to fish." Another said that "the word
right was an obnoxious expression." Adams vehemently con-
tended for the right of the people of America to fish on the
banks of Newfoundland,^ and finally declared that he would
not sign any articles without satisfaction in respect of the
fishery. The British commissioners conceded the point, and
after many suggestions and amendments^ the following article
was agreed on :
"Article III.
" It is agreed that the people of the United States shall
continue to enjoy unmolested the right to take fish of every
kind on the Grand Bank, and on all the other banks of New-
foundland; also in the Gulph of St. Lawrence, and at all other
places in the sea, where tiie inhabitants of both countries used
at any time heretofore to fish; and also that the inhabitants of.
the United States shall have liberty to take fish of every kind
1 Wharton's Dip. Cor. Am. Rev. VI. 85.
« " Can there be a clearer right f '' exclaimed Adams. " In former treaties,
that of Utrecht, and that of Paris, France and England have claimed the
right and have used the word."
•VHiarton'B Dip. Cor. Am. Rev. VI. 86.
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THE HALIFAX COMMISSION. 705
on such part of the coast of Newfoundland as British fisher-
men shall use, (but not to dry or cure the same on that island ;)
and also on the coasts, bays and creeks of all other of his
Britannic Majesty's dominions in America; and that the
American fishermen shall have liberty to dry and cure fish in
any of the unsettled bays, harbours and creeks of Nova Scotia,
Magdalen Islands, and Labrador, so long as the same shall
remain unsettled; but so soon as the same or either of them
shall be settled, it shall not be lawful for the said fisliermen to
dry or cure fish at such settlement, without a previous agree-
ment for that purpose with the inhabitants, proprietors or
I)os8essors of the ground."
By this article it was agreed that the people
"Biffhts'' and "Lib- « ., tx -^ ^ t^. ^ ,11 ^ •
j^ V ^^ t^® United States should continue to enjoy
the ^' right" to take fish on all the banks of
Newfoundland and in the Gulf of St. Lawrence, and '* at all
other places in the sea," where the inhabitants of both coun-
tries had been accustomed to fish ; and that the inhabitants of
the United States should have the "liberty" to take fish on
the coast of Newfoundland and on the coasts, bays, and creeks
of all other of His Britannic Majesty's dominions in America,
and also the '^ liberty" to dry and cure fish, subject to the con-
ditions stated in the article.
When the plenipotentiaries of the United
The Fiaheries and States and Great Britain met at Ghent on the
^e HiMUHdppi at g^j^ ^^ August 1814 the British plenipotentia-
vnonXa
ries, after proposing three points tor discus-
sion, said that, before they desired an answer on those points,
" they felt it incumbent upon them to declare that the British
Government did not deny the right of the Americans to fish
generally, or in the open seas; but that the privileges formerly
granted by treaty to the United States of fishing within the lim-
its of the British jurisdiction, and of landing and drying fish on
the shores of the British territories, would not be renewed with-
out an equivalent." What they considered to be exclusively
British waters they did not state.' On the 19th of August they
also brought forward, as a subject of discussion, the free navi-
gation of the Mississi])pi, which had been secured to British
subjects by the treaty of peace of 1783.^ On the 10th of Novem-
ber the American plenipotentiaries submitted to the British
plenipotentiaries a project of a treaty; and in the note that
'Am. state Papers^ For. Rel. III. 705.
-1(1.710.
5627 45
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706 INTERNATIONAL ARBITRATIONS.
accompanied it they said they were "not authorized to bring
into discussion any of the rights or liberties" which the United
States had theretofore enjoyed in relation to the fisheries. The
project contained nothing either as to the fisheries or the Mis-
sissippi; but the British plenipotentiaries, in returning it,
inserted in one of the articles, relating to the boundary west-
ward from the Lake of the Woods, an amendment to the effect
that British subjects should have and enjoy the free naviga-
tion of that river.* The American plenipotentiaries offered to
enlarge this amendment by making it also provide that the
inhabitants of the United States should *' continue to enjoy the
liberty to take, dry, and cure fish in places witliiu the exclu-
sive jurisdiction of Great Britain," or else to omit the article
altogether.* In reply the British plenipotentiaries proposed,
while retaining the article, to substitute for the previous amend-
ments a stipulation embracing two clauses, one to the effect
that His Britannic Majesty would enter into negotiations with
the United States for the preservation to the latter of the "lib-
erty" in the fisheries, as stipulated by the treaty of 1783, in
consideration of " a fair equivalent" to be granted to the United
States "for such liberty as aforesaid;" and the other to the
effect that the United States would enter into negotiations as
to the terms on which the navigation of the Mississippi, as
stipulated in the treaty of 1783, should be preserved to His
Britannic Majesty.^ The American plenipotentiaries answered
that a stipulation that the parties would in the future negoti-
ate on the subjects in question was unnecessary; they were
willing to be silent in regard to both of them, or to agree to an
engagement, couched in general terms, so as to embrace all
subjects of difference not yet adjusted, or so expressed as not
to imply the abandonment of any right claimed by the United
States.^ Under these circumstances the British plenipoten-
tiaries withdrew their proposed stipulation, saying: "The
undersigned, returning to the declaration made by them on
the 8th of August, that the privileges of fishing within the lim-
its of the British sovereignty, and of using the British territo-
ries for purposes connected with the fisheries, were what Great
Britain did not intend to grant without an equivalent, are not
'Am. State Papers, For. Rel. III. 738,
« Id. 742.
8 Id. 743.
••Id. 744,
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'1
THE HALIFAX COMMISSION. 707
desirous of introduciDg auy article on the subject. With a
view of removing what they consider as the only objection to
the immediate conclusion of the treaty, the undersigned agree
to adopt the proposal made by the American plenipotenti-
aries ♦ ♦ • of omitting the 8th article altogether."^ Thus
it came about that the treaty concluded at Ghent on Decem-
ber 24, 1814, contained no mention either of the fisheries or of
the navigation of the Mississippi.
On the 19 th of June 1815 an American fishing
LordBathant*8Pofi- yessel, engaged in the cod fishery, was, when
and "Liberti »' ^^^^* forty- five miles ironi Cape Sable, warned
by the commander of the British sloop Jaseur
not to come within sixty miles of the coast. This act the British
Government disavowed j^ but Lord Bathurst is reported at the
same time to have declared that, while it was not the govern-
ment's intention to interrupt American fishermen *Mn fishing
anywhere in the open sea, or without the territorial jurisdic-
tion, a marine league from the shore," it ''could not permit
the vessels of the United States to fish within the creeks and
close upon the shores of the British territories."^ John Quincy
Adams, who was then minister of the United States in London,
maintained that the treaty of peace of 1783 "was not, in its
general provisions, one of those which, by the common under-
standing and usage of civilized nations, is or can be considered
as annulled by a subsequent war between the same parties."*
Lord Bathurst replied :
"To a position of this novel nature, Great Britain can not
accede. She knows of no exception to the rule, that all treaties
are put an end to by a subsequent war between the same par-
ties. ♦ ♦ » The treaty of 1783, like many others, contained
]>ro visions of different characters — some in their own nature
irrevocable, and others of a temporary nature. ♦ * ♦ The
nature of the liberty to fish within British limits, or to use
British territory, is essentially diff'erent from the right of inde-
l)endence, in ail that may reasonably be supposed to regard
its intended duration. * * * In the third article [of the
treaty of 1782-83], Great Britain acknowledges the right of the
United States to take fish on the Banks of New Foundland
and other places, from which Great Britain has no right to
exclude an independent nation. But they are to have the
» Am. State Papers, For. Rel. III. 744, 745,
nd.IV. 349.
3 Id. 850.
^ Id. 352.
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708 INTERNATIONAL ARBITRATIONS.
liberty to cure and dry tbem in certain unsettled places within
His Majesty's territory. If these liberties, thus granted, were
to be as perpetual and independent as the rights previously
recognized, it is difficult to conceive that the plenii>otentiaries
of the United States would have admitted a variation of lan-
guage so adapted to produce a difi'ereut impression ; and, above
all, that they should have admitted so strange a restriction
of a perpetual and indefeasible right as that with which the
article concludes, which leaves a right so practical and so
beneficial as this is admitted to be, dependent on the will of
British subjects, in their character of inhabitants, proprietors,
or possessors of the soil, to prohibit its exercise altogether. It
is surely obvious that the word right is, throughout the treaty,
used as applicable to what the United States were to enjoy, in
virtue of a recognized independence; and the word liberty to
what they were to enjoy, as concessions strictly dependent on
the treaty itself." ^
This position Great Britain continued to
^Tr^^""^ maintain. From 1815 to 1818 orders were is-
1815-1818.
sued by the British admiralty to seize Ameri-
can vessels found Ushiiig in British waters, and though these
orders were not continuously enforced, but Avere at various
times and for various periods, generally with a view to nego-
tiation, suspended, many seizures were actually made, and
much ill feeling was engendered.*
Such was the condition of things when, on
Convention of 1818. October 20, 1818, Albert Gallatin and Richard
Eush concluded the convention, the first arti-
cle of which reads as follows :
"Article I.
"Whereas differences have arisen respecting the liberty
claimed by the United States for the inhabitants thereof, to
take, dry, and cure fish on certain coasts, bays, harbours, and
creeks of Ilis Britannic Majesty's dominions in America, it is
agreed between the high contracting parties, that the inhabit-
ants of the said United States shall have forever, in conimon
with the subjects of His Britannic Majesty, the liberty to take
fish of every kind on that part of the southern coast of !New-
foundlaud which extends from Cape Kay to the Kameau Islands,
on the western and northern coast of Kewfoundland, from the
said Cape Hay to the Quirpon Islands on the shores of the
Magdalen Islands, and also on the coasts, bays, harbours, and
creeks from Mount Joly on the southern coast of Labrador, to
1 Am. State Papers, For. Rel. IV. 355, 356.
3 Memoirs of J. Q. Adams, III. 119, 2(55; IV. March 18, 1818.
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THE HALIFAX COMMISSION. 709
and through the Streights of Belleisle and thence northwardly
indefinitely along the coast, without prejudice however, to any
of the exclusive rights of the Uudson Bay Company : And that
the American fishermen shall also have liberty forever, to dry
and cure fish in any of the unsettled bays, harbours, and creeks
of the southern part of the coast of Newfoundland hereabove
described, and of the coast of Labrador; but so soon as the
same, or any portion thereof, shall be settled, it shall not be
lawful for the said fishermen to dry or cure fish at such portion
so settled, without previous agreement for such purpose with
the inhabitants, proprietors, or possessors of the ground. And
the United States hereby renounce forever, any liberty hereto-
fore enjoyed or claimed by the inhabitants thereof, to take,
dry, or cure fish on, or within three marine miles of any of the
coasts, bays, creeks, or harbours of his Britannic Majesty's
dominions in America not included within the abovementioned
limits; Provided however, that the American fishermen shall
be admitted to enter such bays or harbours for the purpose of
shelter and of repairing damages therein, of purchasing wood,
and of obtaining water, and for no other purpose whatever.
But they shall be under such restrictions as may be necessary
to prevent their taking, drying or curing fish therein, or in any
other manner whatever abusing the privileges hereby reserved
to them."
By this article the United States, as it appears, "renounce
forever, any liberty heretofore enjoyed or claimed by the inhab-
itants thereof to take, dry, or cure fish on, or within three
marine miles" of any of the "coasts, bays, creeks, or harbours"
of His Britannic Majesty's dominions in America, not included
within certain limits, within which the right to fish or to dry
and cure fish was expressly reserved by the convention.^
' '' Neither side yielded its convictions to the reasoning of the other.
This being exhausted, there was no resource left with nations disposed to
peace but a compromise. Great Britain grew willing to give up something.
The United States consented to take less than the whole. » * » The
most difficult part of our task was on the question of permanence. Britain
would not consent to an express clause that a future war was not to abro-
gate the rights secured to us. We inserted the word /ofcrrr, and drew up
a i»ap«>r to be of record in the negotiation, purporting that if the conven-
tion should from any cause be vacated, all anterior rights were to revive.
* * *' It was by our act that the United States renounced the right to
the iisheries not guaranteed to them by the convention. * * * We
deemed it proper under a threefold view : 1, to exclude the implication of
the fisheries being secured to us being a new grant; 2, to place the rights
secured and renounced, on the same footing of permanence; 3, that it
might expressly appear, that our renunciation w«as limited to three miles
from the coast." (Rushes Residence at the Court of London, Philadelphia,
1833, pp. 398-4(X). See, also, Am. State Papers, For. Rel. IV. 380-406.)
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710
INTERNATIONAL ARBITRATIONS.
Treaty of 1783, Ar-
ticle III.
II. Liberty. <
Convention of 1818, <
Article I.
II. Liberty.
Comparing the stipulations of the treaty of 1783 and the
convention of 1818 we have the following results:
I. Right to take fish —
1. On the Banks of Newfonndland ;
2. In the Cnlf of St. Lawrence; and
3. At all other pLnces in the sea.
'1. To take fish on the British cosufts
generally.
2. To dry and en re fish in any of the
unsettled bays, harbors, and creeks
of Nova Scotia, Magdalen Islands,
and Labrador.
I. Right remains as under treaty of 1783.
1. To take fish renonncod. except as to
(a) the southern coast of Newfoiuid-
land from Cape Ray to the Ramean
Islands; (&) the western and north-
em coasts of Newfoundland from
Cape Ray to the Qnirpon Islands;
(e) the shores of the Magdalen
Islands, and (d) the coast of Labra-
dor from Mount J0I3' eastwardly
and northwardly indefinitely.
To dry and cure fish renounced, ex-
cex)t aa to (a) the unsettled bays,
harbors, and creeks of the south-
ern coast of Newfoundland from
Cape Ray to tlie Rameau Islands,
and (6) the coast of Labrador.
On June 14, 1819, an act was passed by the
Imperial Act of 1819. Imperial Parliament to carry this article into
effect. It closely followed the language of the
article, and provided regulations and penalties for its enforce-
ment.^ After this act went into effect, several seizures were
made, and from 1824 to 1826 more or less correspondence took
place in regard to three vessels which, after being seized in the
Bay of Fundy, were rescued by a band of armed men from
Eastport, Maine.^
From that time down to 1836 little trouble
Nova8cotian"Hov. g^^^^ to have occurred. But in that ye^r
enng Act."
the legislature of Nova Scotia passed an act,
commonly called the *' Hovering Act," by which the hover-
ing of vessels within three miles of the coasts or harbors was
> Sahine's Fisheries, 394.
^Sen. Ex. Doc. 100, 32 Cong. 1 sess. 5, 11,54,55-58.
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THE HALIFAX COMMISSION. 711
soaght to be prevented by various regulations and penalties;^
and subsequently claims were asserted to
Headland Theory— exclude American fishermen from all bays
J^ J* *^*1~ ^"d even from all waters within lines drawn
Qnesuon of Traffic.
from headland to headland, to forbid them
to navigate the (lut of Canso, and to deny them all privileges
of traffic, including the purchase of bait and supplies in the
British colonial ports. From 1839 down to 1854 there were
numerous seizures, and in 1852 the home government sent over
a force of war steamers and sailing vessels to assist in patrol-
ling the coast.
With a view to adjust the various questions
^^l^^^J^^^^^ that had arisen, the British Government in
1854 sent Lord Elgin to the United States, on
a special mission, and on June 5, 1854, he concluded with Mr.
Marcy, who was then Secretary of State, a treaty in relation
to the fisheries, and to commerce and navigation. By the first
article of this treaty it was provided that, in addition to the
liberty secured to the United Stntes fishermen by the con-
vention of October 20, 1818, of taking, curing, and drying fish
on certain of the coasts of British North America, the inhab-
itants of the United States should have, in common with the
pubjects of His Britannic Majesty, " the liberty to take fish
of every kind, except shellfish, on the seacoasts and shores,
and in the bays, harbors, and creeks of Canada, New Bruns-
wick, Nova Scotia, Prince Edward's Island, and of the several
islands thereunto adjacent, without being restricted to any
distance from the shore, with permission to land upon the
coasts and shores of those colonies and the islands thereof,
and also ui)on the Magdalen Islands, for the purpose of drying
their nets and curing their fish; provided that, in so doing,
they do not interfere with the riglits of private property, or
with British fishermen in the peaceable use of any part of the
said coast in their occupancy for the same purpose."
The liberty thus defined applied solely to the sea fishery.
The salmon and shad fisheries, and all fisheries in rivers and
the mouths of rivers, were expressly reserved exclusively for
British fishermen.
On tlie other hand, it was provided by the second article of
the treaty, that British subjects should have, in common with
I Sen. £x. Doc. 100, 32 Cong. 1 ness. 108.
Digitized by LjOOQIC
712 INTERNATIONAL ARBITRATIONS.
the citizens of the United States, *'the liberty to take fish of
every kind, except shell-fish, on the eastern sea coasts and
shores of the United States north of the 3()th parallel of north
latitude, and on the shores of the several islands thereunto
adjacent, and in the bays, harbors, and creeks of the said sea
coast and shores of the United States and of the said islands,"
on precisely the vSame conditions, including the reservation of
the salmon, shad, and all river fisheries, as were made with
respect to the recii)rocal liberty secured to the American
fishermen liy the preceding article.
By the third article of the treaty, provision was made for
reciprocal free trade between the United States and the British
colonies in North America in various articles, being the growth
and produce of either country; and by the fourth article, cer-
tain stipulations were established as to the navigation of the
liiver St. Lawrence and Lake Michigan, and the use of such
Canadian canals as formed part of the water communication
between the Great Lakes and the Atlantic Ocean.
This treaty came into operation on March
Termination of Eeci- ^^ ^^.^ j^ ^^^^ terminated March 17, 1860,
procity Treaty. . ' , . , . . , , J^ .
in accordance with a notice given by the United
States in conformity with its provisions.^ From 1866 to 1869
the Canadian Government granted licenses to
lioeniet. American fishing vessels, at first at the rate of
50 cents and finally at the rate of $2 a ton for
the enjoyment during each season of the same liberties as they
had excise<l under the reciproc^ity treaty.^
In 1868, however, the Dominion Parliament
"^"^ti *^^* * passed an '^act respecting fishing by foreign
vessels," which was amended in 1870, and
which practically reenacted, with increased stringency of regu-
lations and penalties, the !N^ova Scotian statute of 1836.'
In 1870 the system of granting licenses was
Position 0 e mpe- ^ii^(.<)ntinued,* and a copy of a letter addressed
nal Government. ,. « ,
by the secretary ot state for the colonies to the
lords of the admiralty on April 12, 1S66, defining the views of
the British Government as to the construction of the conven-
1 Dip. Cor. 1865, part 1, 03, ISl, 259.
•^Dip. Cor. 1865, part 1, 2:r>; Papers relating to the Treaty of Washing-
ton, VI. 286.
'For. Rel. 1870, 408, 414.
* For. Rel. 1870, 408.
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 713
tion of 1818 was communicated to the United States. In this
letter it was said that Her Majesty's government were clearly
of the opinion that by the convention of 1818 the United States
had '* renounced the right of fishing, not only within three
miles of the colonial shores, but within three miles of a line
drawn across the mouth of any British bt^y or creek." But the
question, What is a British bay or creek? was one that had
been the occasion of diflSculty in former times. The letter said :
" It is, therefore, at present the wish of Her Majesty\s govern-
ment neither to concede nor for the present to enforce any rights
which are in their nature open to any serious question. Even
before the conclusion of the reciprocity treaty Her Majesty's gov-
ernment had consented to forego the exercise of its strict right
to exclude American fishermen from the Bay of Fundy, and they
are of opinion that during the present season that right should
not be exercised in the body of the Bay of Fundy, and that
American fishermen should not be interfered with, either by
notice or otherwise, unless they arc found within three miles of
the shore, or within three miles of a line drawn across the mouth
of a bay or creek which is less than ten geographical miles in
width, in conformity with the arrangement made with France in
1831). • * • Her Majesty's government do not desire that
the prohibition to enter British bays should be generally in-
sisted on, except when there is reason to apprehend some sub-
stantial invasion of British rights. And in particular they do
not desire American vessels to be prevented from navigating
the Gut of Oanso, (from whicli Her Majesty's government are
advised they may lawfully be excluded,) unless it shall appear
that this permission is used to the injury of colonial fishermen,
or for other improper objects."^
It appears that instructions were given in
Instructions of jgjo ^^t to scize any vessel unless it were
evident, and could be clearly proved, that the
offense of fishing had been committed and the vessel itself
captured within three miles of land.^ In view of the claims
previously made by the British (xovernment, the United States
recognized in the tenor of these instructions "a generous spirit
of amity."^ But subsequently, during the same season, it
was learned that tlio colonial authorities were
Action of Colonial asserting the right to exclude American fish-
n onties. ermen from entering the ports of tlie Domin-
ion, either for the purpose of obtaining bait or supplies or of
» For. Rel. 1870, 419-420.
-1(1.421.
» Id. 421-422.
Digitized by LjOOQIC
714 INTERNATIONAL ARBITRATIONS.
transshipping their cargoes of fish under the system of bonded
transit which had long been in existence.'
Wlien the Joint High Commission, which
The Joint High negotiated the Treaty of Washington, met on
CommiasioiL p^bruary 27, 1871, tbe dispute as to the fish-
cries was one of the subjects that had been ])laced witliin its
cognizance.
Tlie Britisli commissioners were instructed
LiatnictionB of Brit- that the two chief questions were: "As to
II mmiBs onen. ^ji^^ij^p ^j,^ expression * three marine miles
of any of the coasts, bays, creeks, or harbors of his Britannic
Majesty's dominions' should be taken to mean a limit of three
miles from the coast-line, or a limit of three miles from a line
drawn from headland to headland ; and whether the proviso that
* the American fishermen shall be admitted to enter such bays or
harbors for the purpose of shelter, and of repairing damages
therein, of purchasing wood, and of obtaining water, and for
no other purpose whatever,' is intended to exclude American
vessels from coming inshore to traffic, transship fish, purchase
stores, hire seamen, etc." While a preference was expressed
forthe conclusion of adefinite understanding upon the disputed
interpretation of the convention of 1818, the British commis-
sioners were anthonzed to propose that ''the whole question
of the relations between the United States and the British
possessions in North America, as regards the fisheries," should
be "referred for consideration and inquiry to an international
commission, on which two commissioners, to be hereafter ap-
pointed, in consultation with the government of the Dominion,
should be the British representatives." As it was not prob-
able that such a commission would be able to report, and that
a treaty could be framed, before the commencement of the
fishing season of 1871, the British commissioners were author-
ized to agree upon some means, by licenses or otherwise, by
which disputes might in the mean time be avoided.^
In the instructions to the American com-
instructioni of missioners, the following grounds were taken :
American commi.. 1. That the aequisition of the inshore fish-
sionen.
eries for the American fishermen was of more
importance as removing danger of collision than on account
' For. Rel. 1870, 422-434.
- Lord Granville to Her Majesty's Hi«^li Commissioners, February 9, 1871.
(Papers relating to the Treaty of Wasliinfrton, VI. 373-374.)
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 715
of its money value, the latter, probably, being overestimated
by the Canadians.
2. That the headland doctrine had no foundation in the con-
vention of 1818, and had been decided against Great Britain
in the case of the schooner Washington^ under the claims con-
vention of February 8, 1853.
3. That the assumption to prevent American ftsherinen from
purchasing bait, supplies, ice, etc., and from transshipping
their fish in bond, under color of the convention of 1818, was
never acquiesced in by the United States, and was carrying
out in practice provisions which the American plenipotentiaries
declined to insert in that convention.^
4. That as the mackerel fishery, out of which the trouble
mostly arose, had come into existence since 1818, it was a sub-
ject for consideration whether the convention was fairly appli-
cable to it.
For the adjustment of these questions it was suggested that
provision might be made, either —
1. By agreeing on the terms upon which the whole of the
reserved fishing grounds might be thrown open to American
fishermen, all obnoxious laws to be repealed, and the disputed
reservation as to ports, harbors, etc., to be abrogated; or,
'This allasion to the action of tho American plenipotentiaries is baHcd
on the exchange of certain propositions, leading np to the conchision of
the convention. In the article first proposed bj' the American plenipoten-
tiaries on September 17, 1818, the renunciation of the ri(;ht to fish within
three marine miles of the coasts, bays, creeks, and harbors, was followed
by the proviso that the American fishermen should bo permitted to enter
those places "for the purpose only of obtaining shelter, wood, water, and
bait, but under such restrictions as may be necessary to prevent their dry-
ing or curing fish therein, or in any other manner abusing the privilege
hereby reserved to them/' The British plenipotentiaries on October 0
presented a counter project, in which, after stipulating that United
States fishing vessels should have the liberty to enter bays and harbors
**for the purpose of shelter or of repairing damages therein, and of pur-
chasing wood and obtaining water, and for no other purpose," and that
"all vessels so resorting to the said bays and harbors" should bo "under
such restrictions as may be necessary to prevent their taking, drying, and
curing fish therein," they proposed to decl&re that it was "further well
understood" that the "liberty of taking, drying, and curing fish" inshore,
where it was granted by the article, should "not be construed to extend
to any privilege of carrying on trade with any of His Britannic Majesty's
subjects residing within the limits hereinbefore assigned to the use of tho
fishermen of the United States for any of the purposes aforesaid ; " that,
in order the more effectually to guard against smuggling, it should "not
be lawful for the vessels of the United States engaged in the said fishery
Digitized by V^OOQlC
716 INTERNATIONAL ARBITRATIONS.
2. By a^eeing u])on the construction of the dispated re-
nunciation, an<l upon the principles on which a line should be
run by a joint commission to mark the territory from which
the American fishermen were to be excluded; and by repeal
ing the obnoxious laws, and agreeing on the measures to be
taken for the protection of the colonial rights, such measures
to prescribe the penalties for the violation of those rights, and
to provide for a mixed tribunal for their enforcement. It
might also, said the American instructions, be well to consider
whether it should be further agreed that the fish taken in
the waters open to both nations should be admitted free of
duty into the United States and the British North American
colonies.^
The substance of the deliberations of the
Deiiberatioiis of J^)[l^t [Ugh Commission on the subject of the
the Joint Hig m- ^^^^^^1^^^ jg disclosed in the foltowing passage
from the protocol of its proceedings :
"At the conference on the 6th of March the British Commis-
sioners stated that they were prepared to discuss the question
of tlie Fisheries, either in detail or generally,
. . J^^Z, ^^ '^^ either to enter into an examination of
Keoprocity Treaty. ^,j^ respective rights of the two countries
under the Treaty of 181S and the general law of nations, or to
to have on board any goods, wares, or niorchandise whatever, except
such as may bo necessary for the prosecution of their voyages to and from
the said fishing-grounds," and that any United States vessel which con-
travened this regulation might be seiztul, condemned, and confiscated,
together with her cargo. On the 7th day of October the Amcricau pleni-
potentiaries replied that, whatever extent of fishing ground might be
secured to American fishermen, they were not prepared to accept it on a
tenure or on conditions different from those on which the whole had pre-
viously been held, and that making vessels liable to confiscation, in case
any articles not want<'d for carrying on the fishery shonld be found on
board, would expose the fishermen to endless vexations. The British
plenipotentiaries, in turn, on October 13, presented a draft of an article
which was accepted by the American plenipotentiaries, and which was
te,xtually embodied in the first article of the convention. It differs little,
so far as the present discussion is concerned, from the article submitted
by the Americjin plenipotentiaries on the 17th of September, except in the
omission of the word ''bait.'* The United States subsequently contended
that the "baif referred to was bait for cod, which was then caught in
the waters in question, and that it was not intended to prevent the pur-
chase in nritish ports of bait for the mackerel fishery, which did not begin
in those waters till s«»veral years afterward. (Papers relating to the
Treaty of Washington, VI. 280-282.)
' Papers relating to the Treaty of \V sushi ngton, VI. 287-288.
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 717
approach at once the settlement of the question on a comi)re'
hensive basis.
*' The American Commissioners said that with the view of
avoiding the discussion of matters which subsequent negotia-
tions might render it unnecessary to enter into, they thought
it would be preferable to adopt the latter course, and inquired
what, in that case, would be the basis which the British Com-
missioners desired to propose.
" Tfie British Commissioners replied that they considered
that the Reciprocity Treaty of June 5, 1854, should be restored
in principle.
*' Tlie American Commissioners declined to assent to a re-
newal of the former reciprocity treaty.
"The British Cominissioners then suggested that, if any
considerable modification were made in the tariff arrangements
of that Treaty, the coasting trade of the United States and of
Her Britannic Majesty's Possesbious in North America should
be reciprocally thrown open, and that the navigation of the
River Saint Lawrence and of the Canadian Canals should be
also thrown open to the citizens of the United States on terms
of equality with British subjects.
"The American Commissioners declined this proposal, and
objected to a negotiation on the basis of the Reciprocity Treaty.
They said that that Tieaty had proved unsatisfactory to the
people of the United States, and consequently had been termi-
nated by notice from the Government of the United States,
in ]>ursuance of its provisions. Its renewal was not in their
interest, and would not be in accordance with the sentiments
of their people. They further said that they were not at liberty
to treat of the o])ening of the coasting trade of the United
States to the subjects of ller Majesty residing in her Posses-
sions in North America. It was agreed that the questions
relating to the navigation of the River Saint Lawrence, and of
the Canadian Canals, and to other commercial questions attect-
ing Canada, should be treated by themselves.
"The subject of the Fisheries was further
* .**" " discussed at the conferences on the 7th, liOth,
®"®'- 22d, and 25th of March. The American Com-
missioners stated that if the value of the inshore fisheries could
be ascertained, the United States might prefer to purcliase, for
a sum of money, the right to enjoy, in perpetuity, the use of
these inshore fisheries in common with liritish fishermen, and
mentioned one million dollars as the sum they were prepared
to offer. The British Commissioners replied that this offer was,
they thought, whfJUy inadecpiate, and that no arrangement
would be acceptable of which the admission into the United
States free of duty offish, the x)roduceof the British fisheries,
did not form a part, adding that any arrangement for the
accjuisition by purchase of the inshore fisheries in i)erpetuity
was open to grave objection.
"The American Commissioners inquired whether it would be
Digitized by LjOOQIC
718 INTERNATIONAL ARBITRATIONS.
necessary to refer any arrangement for purchase to the Colonial
or Provincial Parliament.
"The British Commissioners explained that the Fisheries
within the limits of maritime jurisdiction were the property of
the several British Colonies, and that it would be necessary to
refer any arrangement which might affect Colonial property or
rights to the Colonial or Provincial Parliment ; and that legisla-
tion would also be required on the part of the Imperial Parlia-
ment.
Bed tv Pro- " During thevse discussions the British Com-
^"^1 missioners contended that these inshore fish-
^ ** eries were of great value, and that the most
satisfactory arrangement for their use would be a reciprocal
tariff arrangement, and reciprocity in the coasting trade; and
the American Commissioners replied that their value was over-
estimated ; that the United States desired to secure their enjoy-
ment, not for their commercial or intrinsic value, but for the
purpose of removing a source of irritation ; and that they could
hold out no hope that the Congress of the United States would
give its assent to such a tariff arrangement as was proposed, or
to any extended plan of reciprocal free admission of tlie prod-
ucts of the two countries; but, that, inasmuch as one branch
of Congress had recently, more than once, expressed itself in
favor of the abolition of duties on coal and salt, they would
propose that coal, salt, and fish be reciprocally admitted free;
and, that, inasmuch as Congress had removed the duty from a
portion of the lumber heretofore subject to duty, and as the
tendency of legislation in the United States was toward the
reduction of taxation and of duties in proportion to the reduc-
tion of the public debt and expenses, they would further pro-
pose that lumber be admitted free from duty from and after the
flrst of July, 1874, subject to the approval of Congi*ess, which
was necessary on all questions affecting import duties.
" The British Commissioners, at the conference on the 17th
of April, stated that they had referred this offer to their Gov-
ernment, and were instructed to inform the American Com-
missioners that it was regarded as inadequate, and that Her
Majesty's Government considered that free lumber should be
granted at once, and that the proposed tariff' concessions should
be supplemented by a money payment.
^' The American Commissioners then stated
Final Arrangement that they withdrew the proposal which they
had previously made of the reciprocal free
admission of coal, salt, and fish, and of liimber alter July 1,
1874; that that proposal had been made entirely in the interest
of a peaceful settlement, and for the purpose of removing a
source of irritation and of anxiety; that its value had been
beyond the commercial or intrinsic value of the rights to have
been acquired in return; and that they could not consent to an
arrangement on the basis now proposed by the British Com-
missioners; and they renewed their proposal to pay a money
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 719
equivalent for the use of the inshore fisheries. They further
proposed that, in case the two Governments should not be able
to agree upon the sum to be paid as such an equivalent, the
matter should be referred to an impartial Commission for
determination.
" The British Commissioners replied that this proposal was
one on which they had no instructions, and that it would not
be possible for tliein to come to any arrangement except one
for a term of years and involving the concession of free fish
and fish-oil by the American Commissioners; but that if free
fish and fish-oil were conceded, they would inquire of their
Government whether they were ])reparcd to assent to a refer-
ence to arbitration as to money payment.
" The American Commissioners replied that they were will-
ing, subject to the action of Congress, to concede fi^ee fish and
fish oil as an equivalent for the use of the inshore fisheries,
and to make the arrangement for a term of years; that they
were of the opinion that free fish and fish-oil would be more
than an equivalent for those fisheries, but that they were also
willing to agree to a reference to determine that question and
the amount of any money payment that miglit be found neces-
sary to complete an equivalent, it being understood that legis-
lation would be needed before any payment could be made.
... TTiTTTT- "The subject was further discussed in the
xxv.^'-ftfat of conferences of April 18 and 19, and the British
Washington.
Commissioners having referred the last pro-
posal to their Government and received in-
structions to accept it, the Treaty Articles XVIII. to XXV.
were agreed to at the conference on the 22d of April."
The articles thus agreed to were embodied in the treaty
which was signed at Washington on May 8, 1871.
By Article XVIII. it was provided that, in
. li^^es* ' addi^on to the liberty secured by the conven-
tion of 1818 of taking, drying, and curing fish
on certain coasts of the British North American colonies, the
inhabitants of the United States should have, in common with
the subjects of Her Britannic Majesty, the liberty, for the term
of years mentioned in Article XXXIII.^ of the treaty, "to take
fish of every kind, except shellfish, on the sea-coasts and
shores, and in the bays, harbors and creeks, of the Provinces
I This article provided that Articles XVIII. to XXV., inclusive, and Arti-
cle XXX. should go into operation as soon as the necessary laws should
have heen passed to give them efi'ect, and remain in force for ten years
thereafter, and further, until the expiration of two years after either party
should have notified the other of its wish to terminate thom, each party
being at liberty to give such notice at the end of the period of ten years
or at any time afterward.
Digitized by LjOOQ IC
720 INTERNATIONAL ARBITRATIONS.
of Quebec, Nova Scotia, aud New Brunswick, and the colony
of Prince Edward's Island, and of the several islands there-
unto adjacent, without being restricted to any distance from
the shore, with permission to land upon the said coasts aud
shores and islands, and also upon the Magdalen Islands, for
the purpose of drying tlieir nets and caring their fish; pro-
vided that, in so doing, they do not interfere with the rights of
private property, or with British fishermen, in the i>eaceable
use of any part of the said coasts in their occupancy for the
same purpose. " And it was provided that the liberty thus de-
fined applied solely to the sea-fishery, aud that the salmon and
shad fisheries, and all otlier fisheries in rivers and the mouths
of rivers, were reserved exclusively for British fishermen.
On the other hand, it was agreed by Article XIX. that Brit-
ish subjects should have, in common with the citizens of the
United States, and subject to such terms, conditions, and limi-
tations as were expressed in the preceding article, the liberty
to take fish, and to land for the purpose of drying nets and
curing fish, on the eastern seacoast and shores of the United
States north of the thirty-ninth parallel of north latitude, and
on the shores of the adjacent islands, and in the bays, harbors,
and creeks of such seacoasts and islands.
By Article XX. it was provided that the
BMervations. places designated by the commissioners ap-
pointed under Article I. of the Reciprocity
Treaty of June 5, 1854, upon the coasts of the two countries,
as places reserved from the common right of fishing under that
treaty, should in like manner be regarded as reserved from the
common right of fishing under the present article; and that,
in case any question should arise as to the common right of
tishing in places not thus designated as reserved, a commission
should be appointed to designate such places, in precisely the
same manner as under the treaty of 1854.
. . In addition to these stipulations, it was
Piah and Fi8h on. ^^^^^^ by Article XXI. that, for the term of
years mentioned in Article XXXIII. of the
treaty, ^* fish-oil and fish of all kinds, (except fish of the inland
lakes, and of the rivers falling into them, and except fish pre-
served in oil,) being the produce of the fisheries of the United
States, or of the Dominion of ('anada, or of Prince Edward's
Island," should*' be admitted into each country, respectively,
free of duty."
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 721
It being asserted by Great Britain, but not
ArUtratLon u to admitted by the United States, that the priv-
QuMtloii of Com- jjgg^g accorded to the citizens of the United
States under Article X YIII. of the treaty were
of greater value than those accorded to British subjects under
Articles XIX. and XXI., it was provided by Article XXII.
that commissioners should ^'be appointed to determine, having
regard to the privileges accorded by the United States to the
subjects of Her Britannic Majesty, as stated in Articles XIX.
and XXI. of this Treaty, the amount of any compensation
which, in their opinion, ought to be paid by the Government of
the United States to the Government of Her Britannic Majesty
in Return for the privileges accorded to the citizens of the
United States under Article XYIIL of this Treaty." It was
agreed that any sum of money which the commissioners might
80 award should be paid by the United States in a gross sum,
within twelve months after such award should have been given.
For the purpose of carrying into effect the
^i^dZmXaa^, foregoing agreement to arbitrate, provision
was made (Article XXIII.) for the appointment
of three commissioners, one to 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; or, in case they should not have named
him within a period of three months after the article took effect,
by the representative at London of His Majesty the Emperor
of Austria and King of Hungary. The commissioners were to
meet in Halifax, Nova Scotia, at the earliest convenient period
after they should have been named, and, before proceeding to
any business, to make and subscribe a solemn declaration that
they would impartially and carefully examine and decide the
matters referred to them to the best of their judgment, and
according to justice and equity, such declaration to be entered
on the record of their proceedings. Each government was
authorized to name one person to attend the commission as its
agent, to represent it generally in all matters connected with
the commission; and the commission was authorized to employ
a secretary and any other necessary officer or oflftcers to assist
it in the transaction of its business. Each of the high con-
tracting parties was to pay its own commissioner and agent or
counsel, and all other expenses were to be defrayed by the two
governments in equal moieties.
5G27 i«
Digitized by LjOOQIC
722 INTERNATIONAL ARBITRATIONS.
The commissioners were invested with i)ower
^'^*". to determine the order of their procedure.
They were required to receive sucli oral or
written testimony as either government might x>resent; and
if either party offered oral testimony, the other had the right
of cross-examination, under such rules as the commissioners
should prescribe. If, in the case submitted to tbe commission-
ers, either party specified or alluded to any report or document
in its own exclusive possession, without annexing a copy, such
party was bound, if the other saw fit to apply for it, to furnish
the latter with a copy; and either party was authorized to call
upon the other, through the commissioners, to produce the
originals or certified copies of any papers adduced as evidence,
giving in each instance such reasonable notice as the commis-
sioners might require.
It was further provided that the case on
Durauono mmi«- ^^^y^^j^ gj^j^ should be closed within a period
of six months from the date of the organiza-
tion of the commission, and that the commissioners should be
requested to give their award as soon as possible thereafter.
But it was agreed that the period of six mouths, for the closing
of the case on either side, might be extended for a period of
three months in case of a vacancy occurring among the com-
missioners.
By Article XXXII. of the treaty it was
Hewfoundland, agreed that the stipulation s of Articles XYIII.
and XXV., inclusive, should extend to the
colony of Newfoundland, so far as they were applicable; but
that, if the Imperial Parliament, the legislature of Newfound-
land, or the Congress of the United States should not em-
brace that colony in the laws passed to give those articles
effect, then the article (XXXII.) should be of no effect.
On May 8, 1871, the day on which the treaty
Provmonal Pro- ^^^ signed, Mr. Fish, in the name of the Presi-
dent, proposed to Sir Edward Thornton that,
pending the adoption of the legislation necessary to give the
fisheries articles effect, Her Majesty's government should be
prepared, in the event of the ratification of the treaty, to make
on their own behalf, and to urge the governments of the Do-
minion of Canada, Prince Edward Island, and Newfoundland
to make such relaxatioTis and regulations as might be neces-
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 723
sary to admit American fisliermeu to the liberty which they
would enjoy under the treaty, the Government of the United
States to admit British subjects to the exercise of the right of
fishing in the American waters specified in the treaty, and to
recommend that Congress authorize the refunding of duties
collected after July 1, 1871, on fish and fish oil the i)roduce of
Canada and Prince Edward Island, if a similar arrangement
was made with respect to the admission into the British pos-
sessions of fish and fish oil being the produce of the United
States.* Sir Edward Thornton, on behalf of his government,
accepted this proposal, saying, however, that the ultimate deci-
sion of the question of immediately granting fishing rights in
tbe British waters must rest with the colonial governments,
just as the refund of duties paid on fish in the United States
after the Ist of July was contingent on the action of Congress;*
and he subsequently stated that, though Her Majesty's gov
ernment continued to hold that, under the convention of 1818,
United States fishermen were prohibited from frequenting
colonial ports and harbors for any purposes but shelter, re-
pairing damages, purchasing wood and obtaining water, the
prohibition would not be enforced during the pending season,
and that American fishermen would be allowed to enter Cana-
dian ports for tbe purposes of trade and of transshipping fish
and procuring supplies, as well as to fish outside of the three-
mile limit in bays more than six miles wide at the mouth.^
On July 25, 1871, the government of Prince Edward Island
decided not to enforce the fishery laws during the pending
season and while the treaty was under consideration by the
colonial legislature.* The government of the Dominion, how-
ever, did not assent to Mr. Fish's proposal, and the proffered
arrangement consequently was not carried into eflPect.*
For a time the question raised as to the
Adoption of Legiaia- jurisdiction of the Geneva Tribunal to enter-
uon.
tain the indirect claims presented by the
United Sttites rendered it doubtful whether the Treaty of
Washington itself would ever go iiito operation. This obstacle,
' For. Rel. 1871, 485.
«For.Rel. 1871, 486.
»Sir Edward Thornton to Mr. Fish, For. Rel. 1871, 490.
^ For. Rel. 1871, 492.
»For. Rol. 1872, 215, 217, 219-222.
Digitized by LjOOQIC
724 INTERNATIONAL ARBITRATIONS
however, having been removed, legislation was in due time
adopted to put all the provisions of the treaty in force. Acts in
relation to the fishery articles were passed by the Imperial Par-
liament and l)y Canada and Prince Edward Island.' These
a<;ts were to take eflFect at a time to be appointed by proclama-
tion, in order that the beginning of their operation might be
simultaneous with that of the legislation to be enacted by
the United States. The corresponding legislation on the part
of the United States was adoi)ted on March 1, 1873, to take
effect on the 1st of the following July, the beginning of the
new fiscal year.^ On the 3d of March 1873 the committee
of the privy council of Canada recommended that, pending
the coming into force of the United States act, American ves-
sels should not be prevented from fishing within the three-mile
limit.3 On the 7th of June 1873 Mr. Fish and Sir Edward
Thornton signed at Washington a protocol in which, after
reciting the reciprocal legislation on the subject, they declared
that the fishery articles would take effect on the 1st of the fol-
lowing July.* The colony of Newfoundland, having passed the
necessary laws, was admitted to the benefits of the treaty and
the act of Congress on the Ist of June 1874.^
The appointment of the mixed commission
^*^^"^Tm**''^* under Article XXIII. of the treaty was post-
poned not only by the delay in the adoption of
the legislation required to give the fishery articles effect, but
also by the consideration of a draft of a treaty for the recip-
rocal regulation of trade between the United States and Canada,
with provisions lor the enlargement of the Canadian canals
and for their use by United States vessels on terms of equality
with British vessels. By the fourteenth article of this project
it was provided that when the ratifications of the new treaty
should have been exchanged and the necessary legislation
adopted to give it effect, the articles of the Treaty of Wash-
ington in relation to the Halifax commission should become
• For, Rel. 1873, 1. 402, 403, 407.
^ 17 Stats, at L. 482.
3 For. Rel. 1873,1.418,419.
4 Treaties and Conveutions, 1776-1887,498.
'^Treaties and Conventions, 1776-1887,499; For. Rel. 1873, I. 419, 427,
429; 1874, 554, 557,558, 559. All of Labrador, outside of the province of
Quebec, came into the arran<>;einent as part of the colony of Newfound-
land. For. Rel. 1874, 567, 572, 573 ; 1875, 1. 613.
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 725
null and void. President Grant communicated this project to
the Senate on the 18th of June 1874, and although it was sub-
mitted as an unsigned draft, in order to ascertain whether the
Senate would advise and consent to its conclusion either in the
form in which it stood and in which it was proposed by the
British plenipotentiaries, or in some other and more acceptable
form, he declared that it had '* many features to commend it to
our favorable consi<leration.'' Tlie Senate, however, removed
the injunction of secrecy from the project, and postponed
action on it till the next session of Congress, when, on Feb-
ruary 3, 1875, it resolved that it was not deemed exi)edient to
recommend the negotiation of the treaty. •
The two governments were thus left to execute
Appointment of the ^jj^ Treaty of Washington by the appointment
Halifax Commia- ^ t-« ^i •
, of commissioners. For this purpose no time
noneTs.
was fixed by the treaty, except as to the third
commissioner, who, unless he was conjointly appointed by the
President of the United States and Her Britannic Majesty within
a period of three months after the fishery articles took effect,
was to be named by the diplomatic representative of Austria-
Hungary in London. As the articles took effect on July 1,
1873, the period of three months expired on the last day of
September in that year. Before the 1st of July Mr. Fish in-
formed Sir Edward Thornton that if Her Majesty's govern-
ment would suggest some names the Government of the United
States would consider them with a view to reaching an agree-
ment; but as no effective steps in that direction were taken, Mr.
Davis, then acting Secretary of State, on the 7th of July ad-
dressed to Sir Edward a formal note, in which he proposed the
names of the ministers of Mexico, Russia, Brazil, Spain, France,
and The Netherlands, at Washington, as a list from which to
choose a third commissioner by conjoint action.' In a conversa-
tion with Mr. Pish at Washington on the 5th of August, and in
a letter of the 19th of the same month, Sir Edward Thornton
asked that the United States would consent to the appointment
of Mr. Maurice Deltbsse, the Belgian minister at Washington.
Mr. Fish, "while entertaining a high personal regard for the
character and abilities of the Belgian minister," objected to
his selection on the ground that *' there were reasons in the
1 For. Rcl. 1874, 5o3. 564 ; 1875. 1. (553.
^Sen. Ex. Doc. 100, 45 Cong. 2 sess.
Digitized by LjOOQIC
726 INTERNATIONAL ARfelTRAtlOS'S.
political relations between his government and that of Great
Britain why the repressentative of the former could not be
regarded as an independent and indifferent arbitrator on ques-
tions between the government of Iler Majesty and the United
States/'* Mr. Fish also adverted to the fact that, when the
Joint High Commission was in session in Washington, the
Earl De Grey, during the discussion of a proposed reference
to one or more heads of foreign states, after mentioning several,
said he would not name Belgium, because of the supposed rela-
tions of that power to Great Britain, which might make it
unacceptable to the United States as a referee. Ou the 26th
of August Sir Edward Thornton made a formal reply to the
note of Mr. Davis of tlie 7th of July, which he had transmitted
to London. In this reply Sir Edward said that, as the matters
which were to be considered by the commission deeply con-
cerned the people of Canada, it was necessary to consult the
government of the Dominion on a point of so much importance
as- the appointment of the third commissioner. This had
caused some delay, but he had received a communication from
the Governor-General of Canada, to the effect that the govern-
ment of the Dominion strongly objected to the appointment of
any of the foreign ministers at Washington as third commis-
sioner, and preferred the alternative of a nomination by the
Austrian ambassador at London. Mr. Fish protested against
this announcement as an abandonment of the effort to select a
third commissioner by conjoint action ; but the three months
soon passed away, without a selection having been made,
and Sir Edward Thornton stated that, the two governments
having failed to agree, the law officers of the Crown were
of opinion that the treaty peremptorily required the nomi-
nation to be made in the alternative mode. Here, owing to
the pendency of the reciprocity proposal, the correspondence
in relation to the appointment of the commission was sus-
pended till April 12, 1875, when, the Senate having advised
against the conclusion of a new treaty. Sir Edward Thornton
announced that Her Majesty's government deemed it desirable
that the arbitration should proceed, and he accordingly pro-
posed that steps should at once be taken for the constitution
of a commission, and suggested that an identic note be ad-
> Mr. Fish to Sir Edward Thornton, August 21, 1873, Sen. Ex. Doc. 44,
45 Cong. 2 seas.
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 727
dressed to the Austrian Government by the representatives
of the United States and Great Britain at Vienna, requesting
that the Austrian ambassador be authorized to proceed with
the nomination of the third commissioner. By a further note
of the 19th of July 1875 Sir Edward con-
^"^nd^Airwt*'^*' veyed information of the appointment of Sir
Alexander T. Gait as British commissioner,
and of Mr. Francis Glare Ford as British agent, and asked to
be informed of the names of the persons who were to act in
similar capacities on the part of the United States. To this
request Mr. Fish was at the time unable formally to respond.
The position of commissioner on the part of the United States
was at first offered to and accepted by Mr. John H. Clif-
ford, of Massachusetts, but, owing to the delay caused by
the reciprocity negotiations^ he died without having entered
upon the discharge of its duties. On May 8, 1876, Mr. Fish
. . n ' announced the appointment of Mr. Ensign H.
noaer and Agent Kellogg and Mr. D Wight Foster, both of Mas-
sachusetts, as commissioner and agent, respec-
tively, on the part of the United States. The third commis-
sioner yet remained to be selected. On the 1st of February
1877, however, Mr. Fish informed Sir Edward Thornton that,
if his government should propose the appointment of Mr.
Delfosse, the United States would not object to the selection.
Sir Edward thereupon communicated with his government, and
also, with the assent of Mr. Fish, called upon Mr. Delfosse,
and ascertained that he would serve; and it was agreed that a
suggestion should be conveyed to the Austrian ambassador at
London, with whom the appointment rested, that the nomina-
tion of Mr. Delfosse would be agreeable to both parties. This
plan was duly executed, and on the 2d of
Third Commiflsioner. March 1877 the Austrian ambassador ap-
pointed Mr. Delfosse as third commissioner.
Mr. Fish on the same day extended to Mr. Delfosse, in an
unofficial note, his " warmest congratulations '' on the appoint-
ment.^
The first meeting of the commission was held
Com^si * '" ^^® legislative council chamber at Halifax
on the 15th of June 1877. Both the commis-
sioners were present, as well as the agents of the two govem-
> Sen. Ex. Doc. 100, 45 Cong. 2 seas.
Digitized by LjOOQIC
728 INTERNATIONAL ARBITRATIONS.
ments. On motiou of Mr. Kellogg, Mr. Delfosse was chosen
to preside over the labors of the commission. He accepted
the position with due acknowledgmentB, and
Prettdc^t-Seore- ^^^^^^^ j jj q jjergne, of the foreign office m
London, as secretary to the commission. The
commissioners then made and subscribed, in duplicate, a
solemn declaration impartially and carefully to examine and
decide the matters referred to them to the best of their judg-
ment and according to justice and equity. The agents of the
two governments then produced their commissions, which were
found to be in due form.
After these preliminaries were completed,
Proeednre. the commissioners proceeded to consider a
draft of rules which had been submitted by
Mr. Ford, the British agent, to Mr. Foster, the American agent.
These rules Mr. Foster in the main approved, but he took
exception to one of them which contemplated the appearance
of counsel on either side, as well as the accredited agents. He
took the ground that no person other than the agents should
be permitted to address the tribunal. Mr. Ford maintained
the opposite view. The commissioners, after retiring to delib-
erate, decided that each agent might be heard personally
or by counsel, and that the number of counsel on each side
should be limited to five, that being the number of the mari-
time provinces on the Atlantic Coast of British North America,
each of which might desire to be heard.
It was decided tliat the proceedings of the commission should
be strictly private, and that the sittings should, unless other-
wise ordered, be held daily ft:om noon to 4 o'clock p. m., Satur-
days and Sundays excepted.
A question was also raised as to whether
Affldayiu. ex parU affidavits should be admitted as writ-
ten testimony, under the terms of Article
XXIV. of the Treaty of Washington. The British agent con-
tended that such affidavits should not beadmitted. Mr. Foster,
on the other hand, maintained their admissibility, the com-
missioners being left to attach to them such weight as they
might deem proper. The commissioners, after deliberation,
decided that such affidavits should be admitted.
The commissioners then took up the ques-
Boles. tiou of procedure, and adopted rules for its
regulation. It was ordered that when the
commissioners should have completed all the necessary pre-
Digitized by VjOOQ IC
THE HALIFAX COMMISSION. 729
liminary arrangements, the British agent should present a
copy of the "Case" of his government to each of the commis-
sioners, and duplicate copies to the agent of the United States,
and that the tribunal should then adjourn for a period of six
weeks, on the expiration of one-half of which period the ageut
of the United Staters should deliver to the secretary of the (com-
mission at least twelve copies of the Counter Case of the United
States. To this Counter Case it was ordered that the British
agent should, three days before the reassembling of the tri-
bunal, deliver to the secretary at least twelve copies of the
"Reply" of his government.
It was further ordered that the evidence in
Evidenoe. support of the British Case must be closed
within a period of six weeks after the case
should have been opened by the British counsel, unless a further
time should be allowed by the commission on application. A
similar period was allowed for the production of evidence in
support of the American Counter Case, after the opening of the
American case in answer. A period of fourteen days was
then allowed for the evidence in reply on the British side,
subject to the right of the commissioners to extend the time on
application. After the closure of evidence on both sides, each
party was allowed an opportunity to file a written argument,
that on the part of the United States to be filed first and that
on the part of Great Britain subsequently. This having been
done, the case of either side was to be considered as finally
closed, unless the commissioners should direct further argu-
ments on special x>oint8, the British Government having in
such event the right of general reply. One counsel only was
to be allowed to examine the witnesses and one counsel only
to cross-examine the same witnesses, unless otherwise ordered
by the commissioners; and it was provided that all witnesses
should be examined on oath or solemn affirmation.
After the adoption of this order of proce-
BritiBh Counsel, dure, Mr. Ford, the British agent, proceeded
to name the British counsel, as follows:
Joseph Doutre, Q. C, of Montreal.
S. R. Thomson, Q. C, of St. John, New Brunswick.
Hon. W. V. Whiteway, of St. Johns, Newfoundland.
Hon. Louis H. Davies, of Charlottetown, Prince Edward
Island, and R. L. Wetherbe, Q. C, ol Halifax, Nova Scotia.
The names of counsel on the part of the United States were
not announced, Mr. Foster stating that he would request per-
Digitized by V^OOQ IC
730 INTERNATIONAL AJ&BITRATlONS.
mission to name them after sach adjournment as might be
decided on, after the presentation of the Case of the British
Government.
Mr. Ford then presented to each of the com-
Biitiih Case, missioners a copy of the Case of the British
Government, ' and duplicate copies to the
American agent, accompanied with a list of the documents to
be filed with the secretary in support of the Case. The com-
mission then adjourned till the next day, the 16th of June,
when it met and adjourned until Saturday, the 28th of July,
in order that the Counter Case of the United States and the
Reply of Great Britain might be prepared and filed.
On the 28th of July the commission met pur-
American Connaei. suant to adjournment, and began its regular
sessions. The secretary announced that the
rules in regard to the filing of the Counter Case and Reply had
been duly complied with. Mr. Foster then named as counsel
on behalf of the United States :
Mr. William H. Trescot, of Washington, and
Mr. Kichard H. Dana, jr., of Boston.
Mr. George B. Bradley and Mr. John A.
other OffidaiB. Lumsden, and later Mr. Benjamin Eussell, were
appointed by the commissioners as stenog-
raphers. On the 30th of July, Mr. Foster introduced to the
commission Mr. J. S. D. Thompson, of Halifax, and Mr. Alfred
Foster, of Boston, who were to attend the commission to per-
form such duties on behalf of the United States as might be
assigned to them. He added that Mr. Henry A. Blood, of
Washington, would also attend, to render clerical assistance.
On the same day, Mr. S. li. Thomson i>ro-
*T^ ^"^ ceeded to open for fhe British Government, by
reading the printed Case submitted in its be-
half to the commission. The documents referred to in the Case
were read in due order by the secretary. When Mr. Thomson
had concluded, Mr. Foster read the Counter Case or Answer of
the United States, printed copies of which had already been
submitted to the commissioners. He stated, however, that such
reading formed no part of his opening, in the course of which
he proposed to quote extracts from the Answer. The reading
of the Answer was unfinished when the commissioners adjourned
till the next day. On the 31st of July, Mr. Foster completed
the reading of his Answer, and at its conclusion Mr. S. R.
Digitized by LjOOQIC
TflE HALIFAX COMMISSION. 731
Thomson read the Reply of the British Government. On the
conclusion of the reading of this Reply, Mr. Thomson said
that the Case of Iler Majesty's government, the Answer of
the United States, and the Reply of Her Majesty's government
having been read, he would leave the subject, as brought out
in evidence, in the hands of the commissioners, who, he was
confident, would carefully and impartially decide it.
The commission then proceeded to take tes-
^^ ^ ** " timony in support of the British Case, begin-
ning with the examination of a fisherman
from Prince Edward Island. From the 28th of July till the
18th of September the sessions of the commission were prin-
cipally occupied in the examination of witnesses and the read-
ing of aflSdavits in support of the British Case. During that
time, however, two important discussions took place.
On the 28th of August counsel for the
Order of Aigmnents. United States made an effort to obtain an ar-
rangement by which the arguments should be
alternated, so as to give them notice of the positions to be
maintained in the final reply on behalf of Great Britain, espe-
cially as to the bearing of the British testimony and statistics.
• This was deemed especially important, because no oral open-
ing had been made by the British agent or counsel. The
American counsel represented that, according to the existing
arrangement it would be their duty to open their case in ad-
vance of their testimony, by laying before the commission the
general scheme of their argument and indicating the points on
which evidence would be submitted in its support. They sug-
gested that a practical discussion of the real issues would be
more certainly secured, and the time and patience of the com-
mission more wisely economized, if they were allowed to sub-
mit such views as they might desire to maintain at the close
instead of in advance of the examination of their witnesses.
This privilege, they contended, would not deprive counsel on
the other side of any advantage, since, besides the right to
make a written reply to the printed arguments, a right which
they already possessed, they might also be allowed the right
of oral reply, if they desired to exercise it. The application of
the American counsel was taken into consideration, and, on the
29th of August, Mr. Thomson stated that the British agent
was willing to afford counsel for the United States an oppor-
tunity to make oral arguments in closing, if these were
Digitized by LjOOQIC
732 INTERNATIONAL ARBITRATIONS.
submitted simultaneously with their written arguments, so that
the British side might reply both orally and in writing. Mr.
Trescot, for the American counsel, declined this propOvSal, say-
ing that the object of the American counsel was to have the
British counsel reply orally to tlieir oral arguments, and then
to file the United States printed argument, leaving to the
British counsel their right of final i)rinted reply to the printed
argument of the United States. What they desired was
a full statement of the case, as regarded by the British
counsel.
On the 1st of September the commissioners decided, Mr.
Kellogg dissenting, that, having due regard to the right of
Her Majesty's government to the general and final reply, they
could not modify the rules in such manner as to impair or
diminish that right; but that each party would, within the
period fixed by the rules, be allowed to offer its concluding
argument, either orcally or in writing; and that, if it was
offered orally, it might be accompanied with a written sum-
mary, for the convenience of the commissioners.
The other important point to which refer-
Jurisdietion of Com- ence has been made related to the basis on
'^**''»c*^^''7 which the award of the commissioners should
cial totoroourse " ^^^^' During the progress of the proofs offered
in support of the British Case it became evident
that a large part of the British claim was based on alleged
advantages of a commercial character. Mr. Foster took the
ground that these advantages, whether valuable or not, were
certainly not secured to the citizens of the United States by
the articles of the Treaty of Washington. He therefore, on
the 1st of September, submitted to the commission the follow-
ing motion :
"The counsel and agent of the United States ask the hon-
orable commissioners to rule and declare that it is not compe-
tent for this commission to award any com])ensation for com-
mercial intercourse between the two c(mntries, and that the
advantages resulting from the practice of purchasing bait, ice,
supplies, etc., and from being allowed to transship cargoes in
British waters, do not constitute good foundation for an award
of compensation, and shall be wholly excluded from the con-
sideration of this tribunal."
Mr. Foster proceeded to support this motion by argument.*
By Article XXII. of the Treaty of Washington the question
^ Dooiiuients and I'roceedings of the Halii'ax Commission, II. 1539.
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 733
before the commission was, said Mr. Foster, the amount of
any compensation which ought to be paid by the United
States for the privileges secured to their citizens under
Article XVI II. of the Treaty of Washington. By that article,
the privileges secured to the citizens of the United States were
the liberty of inshore fishing and that of landing on uninhab-
ited and desert coasts for the purpose of drying nets and cur-
ing fish. These were, he maintained, the sole concessions to
which the jurisdiction of the commission extended. All other
questions, such as the purchase of bait, ice, and supplies, the
conduct of commercial intercourse, and alleged damages to
British fisheries, were beyond the commission's cognizance.
The Treaty of Washington conferred no such privileges on the
inhabitants of the United States, who enjoyed them merely
by sufferance, and could at any time be deprived of them by
the enforcement of existing laws or the reenactment of former
oppressive statutes.
In reply, Mr. Thomson maintained that the privileges in
question were embraced in and incidental to the grant under
Article XVIII. of the Treaty of Washington. By Article I.
of the convention of 1818, the American fishermen were, he
said, permitted to enter British waters for four specified pur-
poses, and " for no other purpose whatever.'' The object of the
Treaty of Washington was to do away altogether with these
restrictions and to place the American fishermen on the
same footing as the British fishermen in respect of the inshore
fisheries. According to the argument of Mr. Foster, if an
American fisherman landed for the purpose of obtaining a
barrel of flour in exchange for fish, or of purchasing bait, or
of obtaining a gallon or two of kerosene oil, he would be sub-
ject to punishment, and render his vessel liable to forfeiture.^
Mr. Doutre, JNIr. Wetherbe, and Mr. Trescot also participated
in the discussion.^
The argument on Mr. Foster's motion was closed on the part
of the United States by Mr. Dana. He contended that Amer-
ican fishermen possessed by comity the right to run into Brit-
ish ports and buy bait and other necessaries, unless they were
specially excluded on some proper ground. Great Britain
might regulate their entry, require them to report at the cus-
tom-house and be searched in order to see whether they were
— _ — — - i^, _-
> DocaiiientH and Proceedings of the Halifax Commission. II. 1547-1557.
2 Id. 1557-1570.
Digitized by LjOOQIC
734 INTERNATIONAL ARBITRATIONS.
merchants iu disguise, and levy duties upon them. But, in
the absence of a prohibition, there was no right to i>reveiit
fishermen from buying bait and supplies; and he maintained
that there was no law preventing the exercise by American
fishermen of the privileges in question.
On the 6th of September the commission
BeciBion on Com- unanimously rendered the following decision:
meimal QnMtion.
"The Commission having considered the
motion submitted by the agent of the United States at the con-
ference held on thelst instant, decide:
"That it is not within the competence of this tribunal to
award compensation for commercial intercourse between the
two countries, nor for i)urchasing bait, ice, supplies, etc., nor
for the permission to transship cargoes in British waters."
After this decision was read. Sir Alexander Gait stated the
grounds on which he had acquiesced in it. The definition of
the tribunal's jurisdiction was, he said, undoubtedly important
in its consequences, since it eliminated from the consideration
of the commision an important part of the Case submitted on
behalf of Her Majesty's government. At the same time it had
the further important effect of defining and limiting the rights
conceded to the citizens of the United States, under the Treaty
of Washington. He could foresee thjit, under certain circum-
stances, the exercise of the privileges in question might pro-
duce inconveniences, which, if they should arise, were matters
properly within the control and judgment of the two govern-
ments, and not within that of the commission. At the same
time, he did not think that counsel for the United States had
correctly stated the position of the two parties at the time
when the Treaty of Washington was entered into. By the
convention of 1818 the United States renounced for their fish-
ermen the right to do anything except what they were per-
mitted to do by the words of that instrument. The legislation
subsecpiently adopted, to give effect to the restrictions of the
convention, produced great irritation, which resulted in the
adoption of the reciprocity treaty of 1854. By that treaty it
was understood that the restrictictious imposed upon the
American fishermen were removed, and that the statutes which
had operated against them were susi>ended. At the termina-
tion of the treaty, the restrictions of the convention of 1818
were revived, the statutes were again enforced, and laws of a
still more stringent character were passed. In his annual
message* to Congress of 1870, President Grant complained of
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 735
the annoyanceB to which the American fishermen were sub-
jected. The Treaty of Washington was intended to put an end
to these annoyances; and the impression left upon his mind
by an examination of the provisions of that treaty was, said
Sir Alexander, that it must necessarily have been supposed
that, as in the case of the reciprocity treaty, so in the case of
the Washington Treaty, the rights of traffic and of obtaining
bait and supplies, were conferred, beiug incidental to the fish-
ing privilege. He therefore believed that it was the intention
of the parties to the Treaty of Washington to direct the tri-
bunal to consider all the points relating to the fisheries which
hail been set forth in the British Case; but he was now met
by the most authoritative statement as to what the parties to
the treaty intended. The agent of the United States had dis-
tinctly stated that it was not the intention of his government
to provide by the treaty for the continuance of those incidental
privileges, and that the United States were prepared to take
the whole responsibility, and to run all the risk of the reenact-
ment of the vexatious statutes to which reference had been
made. From this argument as to the true, rigid, and strict
interpretation of the Treaty of Washington, he "could not
escape.'' The responsibility must rest upon those who ap-
pealed to the strict words of the treaty as their justification.^
The introduction of evidence on the part of
Clow of Evidence, the United States began on the 19th of Sep-
tember, and was closed on the 24th of October.
During that time 78 witnesses were examined orally, nearly all
of whom came from the fishing towns of Maine and Massachu-
setts. Many of them were fishermen and commanders of fish-
ing schooners, but there was also a large number of fish dealers
and owners of fishing vessels in the United States. Mr. Foster
also introduced 280 affidavits and a mass of statistics gathered
from the United States Bureau of Statistics, the custom-
houses at Boston and Gloucester, and the returns of the Massa-
chusetts inspector-general offish.
On the 25th of October evidence in rebuttal was offered on
behalf of the British Government, and on the 1st of November
Mr. Doutre announced that the Case of Her Majesty's govern-
ment was altogether closed. The commission then adjourned
till the 5th of November, when Mr. Foster stated that he hoped
to be prepared to address the tribunal.
^ Docaments and Proceedings of thf) Halifax CommiHsion, II. 1585-1588.
Digitized by V^OOQ IC
736 INTERNATIONAL ARBITRATIONS.
Mr. Foster began liia closing argament on
Oral Azgumentt. the 6th of November, and completed it on the
6th. On the 8th of November the tribunal was
addressed by Mr. Trescot, and on the 9th and 10th by Mr. Dana.
On the I6th of November ^Mr. Whiteway began the closing argu-
ment on behalf of the British Government. H e was followed on
the 16th by Mr. Doutre, who finished his speech on the 17th,
and was followed by Mr. Thomson on the 19th. Mr. Thomson
continued his argument on the 20th and 21st of November;
and at its conclusion on the latter day he announced that the
argument on the part of Her Majesty's government was finally
closed. The president of the tribunal then requested the sec-
retary to enter on the minutes the thanks of the commissioners
to Mr. Bergne, for his services as secretary of the commission,
and their sense of the zeal, intelligence, and accuracy which
had marked the discharge of his duties.
The commission then adjourned until Friday, the 23d of
November, at 2 o'clock.
As the tribunal, when it next met, had de-
tenuons o » termined upon its award, it will be proper,
two Oovemni6iit8. i x ^
before proceeding to the session of the 23d of
November, to summarize the contentions of the two govern-
ments, as they appear in the British Case, the Answer of the
United States, and the British Reply.
The British Case opened with a review of
BritiBh Case: Value ^jj^ fishery question from 1783 down to the
eriiJ* ^"^ ^^' ^^clusion of the Treaty of Washington, and
then, after analyzing the pertinent clauses of
that treaty, proceeded separately to estimate the value of the
coast fisheries of Canada and of Newfoundland. In the coast
fisheries of Canada it embraced the fisheries on the coasts and
in the bays, harbors, and creeks of the Dominion, from the
Bay of Fundy to the Gulf of St. Lawrence, inclusive. The
value of these fisheries, of which the principal products are
mackerel, codfish, herring, halibut, haddock, hake, pollack, and
many small varieties of fishes taken for bait, was represented
as constantly increasing.
Of the advantages derived by the United
The liberty of In- g ^ ^ ^^ Treaty of Washington, the
shore Fishing. "^ o 7
first that was mentioned in the British Case
was the liberty of fishing in British waters. The official rec-
ords of the United States and other sources of information
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 737
were represented as showing that an average number of about
1,000 American vessels annually resorted to British waters for
the purpose of fishing. Of this fleet it was said that the larger
part was fitted almost exclusively for the mackerel fishery, the
successful prosecution of which was chiefly dependent on the
liberty of resorting freely to the bays, creeks, and inshore
waters generally, to fish and refit, and to transship cargoes.
It was estimated that these privileges, which were represented
as wholly derived from the treaty, were worth $3,600 annually
to each vessel engaged in the mackerel fishery. The value of
the other fish taken by such vessels was estimated at $2,000,
thus making a total of $5,600 worth of fish of all kinds as an
average for each trip. The amount of American capital em-
barked in the business was estimated at more than $7,000,000,
and as employing about 16,000 men afloat and many ashore.
Thus the inshore fisheries afforded occupation for men and
money beyond many other lucrative industries. The fish trade
of the United States was constantly increasing, and constantly
rendered more valuable and necessary the access to the Cana-
dian fisheries. This consideration was represented as forming
an additional reason for compensation.
The second general advantage mentioned in
TheliliertytoLand. the British Case, as derived by the CTnited
States from the Treaty of Washington, was the
liberty to land for purposes, such as drying nets and curing
fish, connected with the fishing on the coasts of Labrador,
the Magdalen Islands, and other portions of the seaboard of
the Dominion of Canada. This liberty had been secured to the
United States for a period of twelve years, and it was repre-
sented as an important item on the ground that without it fish-
ing operations on many parts of the coast would be not only
unremunerative but impossible.
The third general advantage represented in
Truuih^ent and ^^^ British Case as accruing to the United
other Pnvueffei.
States from the fishery articles was the free-
dom to transfer cargoes, to outfit vessels, buy supplies, obtain
ice, engage sailors, procure bait, and traffic generally in British
ports and harbors, 5r tc transact other business ashore not nec-
essarily connected with fishing pursuits. These were treated
as "secondary privileges" which were indispensable to the suc-
cess of foreign fishing on the Canadian coasts, and materially
enhanced the value of the principal concessions. By the ei\joy-
5627 47
Digitized by LjOOQIC
738 INTERNATIONAL ARBITRATIONS.
ment of these secondary privileges American fishing yessels
were represented as being enabled to make second and third
full fares, and thus to double the catch which could be made in
British waters in a single season, besides avoiding risks of life
and property.
The fourth general advantage represented as
^*** stati *^* ^ ' accruing to the United States was that of estab-
lishing permanent fishing stations on the Ca-
nadian bays, creeks, and harbors, especially for the purpose of
curing codfish. Not only did these convenient stations, it was
argued, enable the American fishermen to obtain more f]*equent
fares, but it also enabled them to cheapen the cost of the pres-
ervation and improve the quality of their catch.
As to the reciprocal free market established
Free Markets, by the treaty, the British Case took the ground
that such a market for any needful commodity,
such as fish, entering extensively into daily consumption by
rich and poor, was so manifest an advantage to everybody con-
cerned— the producer, the freighter, the seller, and consumer
alike — that the remission of Canadian duties on American-
caught fish imported into Canada could not form a very mate-
rial element for consideration.
Another general advantage, represented as
Beasts of the Pro- j^rived by the United States from the Treaty
teotive Service.
of Washington, was that of sharing in the bene-
fits of the service organized and maintained by Canada for the
protection of the inshore fisheries. The value of the participa-
tion of the American fishermen in the benefits of this service
was estimated at $200,000 annually.
Such were the advantages set forth in the
CompeiLiation ^^,^^^^^ q^^ ^g derived by the United States
Claimed.
from Article XVI II. of the Treaty of Washing-
ton. On the other hand, it was represented that the privileges
gained by British subjects were of no value. As to the liberty
of fishing in United States waters and the privileges connected
therewith, it was declared that it was valueless; and as to the
admission of Canadian fish and fish oil into the United States
free of duty, it was maintained that it was a concession advan-
tageous to the people of the United States as well as of Canada.
On the whole, in consideration of (1) the liberty of fishing
inshore, (2) the liberty to laud for the purpose of drying nets
and curing fish, (3) the obtaining of bait and supplies and the
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 739
transshipment of cargoes, and (4) the participation in the bene-
fits of the fisheries protection service, the British Case claimed,
in behalf of Oauada, a gross sum of $12,000,000.
As to N^ewfouudland, the British Case stated
^^^'^ laTd'^'*"'^" ^^^^* *^^ ^^*®^' ^^ respect of which free fishing
had been secured by the United States under
the Treaty of Washington, embraced an extent of upward of
11,000 square miles, including the most valuable codfisberies
in the world . Moreover, herring, capeliu , and squid, which con-
stituted the best bait for codfishing, could be taken in unlim-
ited quantities close inshore along the whole coast, while in
some parts were to be found turbot, halibut, and lance. The
prosecution of the fisheries on the banks of Newfoundland,
which were situated from 35 to 200 miles from the coast, de-
pended for its success almost wholly on securing a commodious
and proximate base of operations. Newfoundland, from that
part of the coast thrown open by the treaty to the United
States fishermen, extracted yearly, at the lowest estimate,
$5,000,000 worth of fish and fish oil, which was increased, by
fish used for bait and for local consumption, to an annual value
of $6,000,000. It was estimated that the inshore fisheries of
Newfoundland were worth to the fishermen of the United
States, at a moderate valuation, $120,000 per annum, or
$1,440,000 for a period of twelve years, and that the use of
the coast as a basc^ of operations was worth as much more.
In the aggregate the British Case claimed
^^OainiB. ^ ^^ account of Newfoundland a gross sum of
"°^ $2,880,000. Adding this to the sum estimated
on account of Canada, we have, as the aggregate amount
claimed by the British Case for the period of twelve years
covered by the Treaty of Washington, the sum of $14,880,000,
or $1,240,000 per annum.^
» Docaments and Proceedings of the Halifax Commission, I. 77-117. In
a pamphlet entitled *' Fraudulent Official Records of Government," by
*' Henry Youle Hind, M. A., British Scientific Witness at the Halifax Fish-
eries Commission, and Official Compiler of the Analytical Index to the
Documents of the Commission," published in 1884, the charge was made
that the statistics printed with the British Case w^ere falsified. This
pamphlet was one of a series by the same author, in which he attacked
the statistical department of Canada in respect of its publications on
various subjects. As to the fitherieH statistics, he charged that ''the
Canadian statistics of fish trade with the United States were altered and
adjusted year after year to an enormous extent in favor of Canada, by the
Digitized by LjOOQIC
740 INTERNATIONAL ^ ARBITRATIONS.
In the " Answer on behalf of the United
^"^StetL^""*^ States of America to the Case of Her Britannic
Majesty's Government," it was maintained that
the only privileges acquired by the United States under Article
XYIII. of the Treaty of Washington were (1)
PrivUeget Acquired, ^j^^^-^f fishing on the seacoasts and shores and
in the bays, harbors, and creeks of Quebec, Nova Scotia, Kew
Brunswick, Prince Edward Island, and the adjacent islands,
without being restricted to any distance from the shore, and
(2) that of landing on those coasts, shores, and islands for the
purpose of drying nets and curing fish, provided there was no
interference with rights of private property or the occupancy
of British fishermen. It was contended that the American
fishermen possessed, independently of the treaty, the right to
fish anywhere in the sea, including bays and gulfs more than
six miles wide at the mouth, beyond three miles from low- water
mark. This claim was insisted upon not only on grounds of
international law, but also on the basis of the status actually
existing when the Treaty of Washington was entered into.
It was claimed that, even before the adoption of the reciproc-
ity treaty of 1854, <'the extreme and untenable claims put
forth at an earlier day had been abandoned," and that since
its abrogation the British Government had confined the pre-
vention of fishing to the distance of three miles from the shore.
As to the value of the inshore fisheries to
RAe • ^" *^^ United States, the American Answer de-
clared that the British Case had not attempted
to separate and distinguish the inshore from the open-sea fish-
eries, but had implicitly assumed that all gnlfs and bays, even
of the larger size, were within the exclusive British jurisdic-
coUasion of Canadian officials with the Chief of the United States Burean
of Statistics ; " that ** at the same time the United StaU's statistics of fish
trade with Canada were annually modified in the final record against the
interests of the United States hy similar secret collusion and treachery ;''
and that " this kind of work was carried on during several years for purely
selfish ohjects and in the interest of a few individuals, with the purpose
of using it in future exalted government negotiations." Of these charges
he furnished cryptogrammatic proof, which he published under the title
"An Exposition of the Fisheries CommiHslon Frauds, showing how the
Frauds were concealed hy the use of the number 666, and the masking
numbers 42, 10, 7^2, taken from the 13th chapter of Revelation/' It would
add little to the elucidation of the process thus described to give examples
of it.
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 741
tion. The fisheries, said the Answer of the United States, pur-
sued by the American fishermen in the waters adjacent to the
British provinces on the Atlantic coast, were the halibut and
cod fishery and the mackerel and herring fishery. But the
halibut and cod fishery, which Included the hake, haddock,
cusk, and pollack, was conducted exclusively on the banks,
beyond the jurisdiction of any nation, and as an exclusively
deep-sea fishery was not within the cognizance of the commis-
sion. 'The codfishermen neither used the shores for drying
their nets and curing their fish — a practice which belonged to
primitive methods of fishing — nor fished for bait to any con-
siderable extent in British territorial waters; nor had the
claim of Great Britain to be compensated for allowing United
States fishermen to buy bait and other supplies of British sub-
jects any semblance of foundation in the treaty, which conceded
no right of traffic.
Almost the only fish, said the Answer of the
^* ^^^^^ ^^^" ^^^^^^ States, ever taken by Americans with-
in the three-mile limit oif the coast of the British
provinces was the mackerel, and of the entire catch of this fish
only a small part was taken inshore. The mackerel abounded
along the Atlantic coast from Cape May northward; great
quantities of it were found in the deep sea; the purse seine had
been substituted for hand lines and hooks in taking it, and the
chief use made of the Canadian waters by the American fisher-
men was to follow, occasionally, a school of fish which happened
to set in toward the shore. The herring fishery was treated as
practically worthless.
As to the advantages derived by British sub-
^^^Tr!^!^"^ jects from the fishery articles of the Treaty of
Washington, the American Answer maintained
(1) that the admission of American fishermen intoBritish waters
was beneficial to colonial fishermen, who caught more fish,
made more money, and were improved in their general condi-
tion by the presence of foreign fishermen; (2) that the inci-
dental benefits arising from traffic with American fishermen were
of vital importance to the inhabitants of the maritime provinces.
These thiugs were referred to as benefits only indirectly and
remotely within the cognizance of the commission, and as evi-
dences that " a system of freedom, rather than one of repression,
proves the best for aU mankind." The specific benefits, which
Digitized by LjOOQIC
742 INTERNATIONAL ARBITBATIOITS.
the treaty directed the commission to regard in its compari^oL
and adjustment of eqaivalents, \*'ere described
iTnitad statetL ^ ^^ ^^^ ^^^ admission of British subjects to thf
fishing grounds of the United States down to
the thirty-ninth parallel of north latitude, where all descrip-
tions of fishes found in the colonial waters, iaclndin^ the besi
quality of mackerel, abounded, and where were exclusiveJr
found the menhaden and porgies, which were not only the besi
bait for mackerel, but of which the former was valuable for its
oil and as a fertilizer ; and (2) the " enormous
Saminioxi of Duties, pecuniary value of the right to import fish and
fish oil, free of duty, into the markets of the
United States." Various Canadian authorities were quoted as
to the value of this right, and evidence was presented to
show that the remission of duties to Canadian fishermen, dur-
ing the four years that had elapsed since the treaty went into
effect, had amounted to $400,000 annually.
In conclusion, the Answer reeapitiiiatecf the
Beeapitolation. contentions of the United States as follows:
"First. That the province of this OommiV
sion is limited solely to estimating the value to the inhabitunLs
of the United States of new rights accorded by the Trentyot
Washington to tlie fisheries within tbe territorial waters of tbe
British North American ])rovinces on the Atlantic coast; which
comprise only that portion of the sea lying within a marine
league of the coast, and also the interior of such bays and inlets
as are less than six miles wide between their headlands; while
all larger bodies of water are parts of the free and open ocean,
and the territorial line within them is to be measured alon^
the contour of the shore, according to its sinuosities, and withm
these limits no rights existing under the convention of 181^
can be made the subject of compensation.
'* Second. That within these limits there are no fisberics,
except for mackerel, which United States fishermen do or
advantageously can pursue; and that of the mackerel catch
only a small fractional partis taken in British territorijil waters.
'* Third. That the various incidental and reciprocal advan-
tages of the treaty, such as the privileges of traffic, purchasing
bait, and other supplies, are not the subject of compensafiofl.'
because the Treaty of Washington confers no such right-** ^"
the inhabitants of the United States, who now enjoy tiheni
merely by sufferance, and who can at any time be deprived ot
them by the enforcement of exhistinglawsorthereenactroent
of iornier oppressive statutes. Moreover, the treaty does not
provide for any possible compensation for such privileges; a"^
they are far more important and valuable to the subjects oi
Her Majesty than to the inhabitants of the United States.
''Fourth. That the inshore fisheries along the coast of tw
Digitized by V^OOQ IC
THE HALIFAX COMMISSION. 743
United States, north of the 39th parallel of north latitude, are
intrinsically fully as valuable as those adjacent to the British
provinces; and that British fishermen can, and probably will,
reap from their use as great advantages as the Americans have
enjoyed, or are likely to enjoy, from the right to fish in British
waters.
'* Fifth. That the right of importing fish and fish-oil into the
markets of the CTnited States is to British subjects a boon
amounting to far more than an equivalent for any and all the
benefits which the treaty has conferred upon the inhabitants of
the United States.
** Sixth. In respect to Newfoundland, the United States,
ander the convention of 1818, enjoyed extensive privileges.
But there are no fisheries in the territorial waters of that island
of which the Americans make any use. There, as everywhere
else, the cod fishery is followed in the open sea, beyond the
territorial waters of Great Britain. No herring, mackerel, or
other fishery is there pursued by Americans within the juris-
dictional limits. The only practical connection of Newfound-
land with the Treaty of Washington is the enjoyment by its
inhabitants of the privilege of free importation of fish and
fish-oil into the United States markets. The advantages of the
treaty are all on one side, tliat of the islanders, who are im-
mensely benefited by the opening of a valuable traffic, and by
acquiring free access to a market of forty millions of people."
Accompanying the Answer of the United
^"'^wato^*^'^*^ States, there was a "Brief for the United
States uix)n the Question of the Extent and
Limits of the Inshore Fisheries and Territorial Waters on
the Atlantic Coast of British North America." In this brief
the discussions between the two governments subsequent
to the convention of 1818 are reviewed, and various writers on
international law are cited, and it is maintained "that, prior to
the Treaty of Washington, the fishermen of the United States,
as well as those of all other nations, could rightfully fish in the
open sea more than three miles from the coast; and could also
fish at the same distance from the shore in all bays more than
six miles in width, measured in a straight line from headland
to headland." ^
' Documents and Proceedings of the Halifax Commission, 1. 119-167; The
Brief cites, on the question of territorial waters. Queen v, Keyn, L, R. 2
Exch. Div. 63; Bhintschli, Law of Nations, hook 4, $$ 302, 309; Kluher,
Droit des Gens Modernes de TEurope, Paris, 1831, vol.1, p. 216; Ortolan,
Diplomatie de la Mer, ed. 1864, pp. 145, 153; Hautefeuille, Droits et Devoirs
des Nations Nentres, torn. 1, tit. 1, cli. 3, $ 1 ; Manning's Law of Nations, hy
Amos; Martens, Pr<$cis du Droit des Gens Modernes de I'Europe, ed. 1864,
Pinheiro-Ferriera, $$ 40, 41; De Cussy, Phases et Causes C61«>hre8 du
Droit Maritime des Nations, Leipzig, 1856, liv. 1, tit. 2, H ^0, 41.
Digitized by VjOOQ IC
744 INTERNATIONAL ABBITEATI0N8.
Ill the "Reply on Behalf of Her Britannic
British Bepiy. Majesty's Government to the- Answer of the
United States of America," the positions taken
in the Answer of the United States as to inshore fishing were
analyzed and controverted, and the claims of the British
Case maintained;^ and, supplementing the
Question of Territo- Reply, there was a "Brief on behalf of Her
nai Waters. Majesty's Government in Keply to the Brief on
behalf of the United States," on the subject of territorial
waters.* In this brief it is declared to be admitted by all
authorities, whether writers on international law, judges who
have interpreted that law, or statesmen who have negotiated
upon or carried it into effect in treaties or conventions, that
every nation has the right of exclusive dominion and jurisdic-
tion over those portions of its adjacent waters which are
included by promontories or headlands within its territories;"'
and it is maintained that by the convention of 1818 the United
States fishermen are prohibited from fishing, not merely within
three miles from the shore, but within three marine miles of the
entrance of any of the bays, creeks, or harbors of flis Britan-
nic Majesty's dominions in America.* The British agent also
filed certain "Oflftcial Correspondence from the Years 1827 to
1872, inclusive. Showing the Encroachments of United States
Fishermen in British North American Waters since the Con-
clusion of the Convention of 1818." *
The closing arguments of Messrs. Foster,
aodngAigiunents. Trescot, and Dana, on the part of the United
States, and of Messrs. Whiteway, Doutre, and
Thomson, on the part of Great Britain, occupy nearly 300
* Documents and Proceedings of the Halifax Comroission, I. 169-241.
2 Documents and Proceedings of the Halifax Commission, II. 1887-1906.
3 Citing Kent Comm. 1.32; Lawrence's Wheaton, 2d ed. p. 320.
^The Brief cites varions documents and authorities as to the construc-
tion of treaties. As to the meaning of the terms coasts, creeks, bays, and
harbors, and the extent of marine jurisdiction, it cites Bee's Ad ni. Rep.
205; act of Congress, 3 Stats, at L. 136; The Anna, 5 Rob. 385; United
States V. Grnsh, 5 Mason, 298; United States v. Bevau, 3 Wheat. 387; Har-
grave's Tracts, chapter 4; De Lovio r. Boit, 2 Gallison, 462; Church r.
Hubbart, 2 Cranch, 187; 1 Op. At. (ien. 32; Martin v, WaddeH, 16 Pet. 367;
Life of Sir Leoline Jenkins, II. 726; Azuni, Droit Maritime de I'Europe,
ch. II. art. 2, $ 3; Vattel, b. L ch. 23; Queen v. Keyn, L. R. 2 Exch. Div. 63;
The Direct United States Cable Co. r. The Anglo-American Telegraph Co.,
L. R. 2 App. Cas. 394.
<^ Documents and Proceedings of the Halifax Commission, II. 1457-1508.
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 745
pages of the printed records of the commission,^ and practi-
cally exhaast the sabject submitted to it.
On the 23d of November 1877 Mr.Delfosse,
Awazd. the president of the tribunal, announced its
award, which was to the effect that the United
States should pay to Great Britain, iu accordance with the pro-
visions of the treaty, the sum of $5,500,000 in gold. This
award was signed by Mr. Delfosse and Sir Alexander Gait.
Mr. Kellogg dissented from it on two grounds: (1) That the
advantages accruing to Great Britain under the treaty were
greater than those accruing to the United States, and (2) that it
was questionable whether the tribunal was competent to make
an award, except with the unanimous consent of its members.
The text of the award is as follows:
'*The undersigned Commissioners appointed under Articles
XXII. and XXIII. of the Treaty of Washington of the 8th of
May,1871, todetermine,havingregard to theprivileges accorded
by the United States to the subjects of Her Britannic Majesty, as
stated in Articles XIX. and XXI. of said treaty, the amount of
any compensation which in their opinion ought to be paid by
the Government of the United States to the Government of
Her Britannic Majesty, in return for the privileges accorded to
the citizens of the United States under Article XYIII. of the
said treaty;
"Having carefully and impartially examined the matters
referred to them according to justice and equity, in conformity
with the solemn declaration made and subscribed by them on
the fifteenth day of June, one thousand eight handred and
seventy-seven:
"Award the sum of five millions five hundred thousand dol-
lars, in gold, to be paid by the Government of the United
States to the Government of Her Britannic Majesty in accord-
ance with the provisions of the said treaty.
" Signed at Halifax, this twenty-third day of November, one
thousand eight hundred and seventy-seven.
" Maubice Delfosse.
"A. T. Galt.
The dissent of Mr. Kellogg was expressed in the following
terms:
"The United States Commissioner is of opinion that the
advantages accruing to Great Britain under the Treaty of
Washington are greater than the advantages conferred on the
United States by said treaty, and he can not therefore concur
in the conclusions announced by his colleagues.
* Dooaments and Proceedings of the Halifax Commission, II. 1588-1885.
Digitized by LjOOQIC
74fi INTERNATIONAL ARBITRATIONS.
<^ And the American Commissioner deems it bis duty to state
further that it is questionable whether it is competent for the
board to make an award under the treaty, except with the
unanimous consent of its members.
*« E. H. Kellogg, Commissioner.^^
After the award was read, Mr. Foster ad-
Am'ricim^^ \ dressed the commission, saying tbat he had
no instructions irom his government as to the
course to be pursued in the contingency of such a result as
had been announced, but that if he were to accept in silence
the paper signed by two commissioners, it might afterward be
claimed that he had, as agent of the United States, acquiesced
in treating it as a valid award. Against such an inference he
said he deemed it his duty to guard, and he asked that his
statement be placed on record, which was done.
Mr. Kellogg expressed his thanks and those
Adjoumment. of Sir A. T. Gait to Mr. Delfosse for the man-
ner in which he had fulfilled the duties of
president of the commission ; and Mr. Delfosse then announced
that the commission was adjourned s^ine die.
The amount of the award was a surprise to
Absence of any Dii- ^^^ government of the United States, as well
senting Opinion. ^
as to those who represented it before the Hali-
fax C/Ommission. As to the process of reasoning and of com-
putation by which the result was reached, nothing was disclosed
either in the award itself or in the dissent of the American
commissioner. While the mere declaration of conclusions,
without any disclosure of the reasons on which they are based,
possesses certain advantages; it is not unreasonable to expect,
in an imx)ortant case of difference, some statement of the
grounds on which at least the dissent proceeds; but, in the
case of the Halifax commission, though the difference between
the American commissioner and his colleagues was radical and
far-reaching, there is nothing in the proceedings of the tribunal
to show to what extent this difference was subjected by him
to a critical analysis and examination, in conference with the
other commissioners. His dissent is entered of record in a
purely formal manner.
In his annual message to Congress on ihe 3d
Questl^ as to Mr, of December 1877 President Hayes announced
DelfoMe.
that the Fisheries Commission had concluded
its sessions at Halifax, and that the result of its deliberations, .
Digitized by LjOOQIC
THE HALIFAX COMMISSION. 747
as made public by the commissioners, would be communicated
to Congress. On the llth of March 1878 the Senate, on motion
of Mr. Blaine, adopted a resolution requesting the President,
if it should not in his judgment be incompatible with the pub-
lic interest, to communicate to that body copies of all corre-
spondence between the United States and Great Britain, in
regard to the selection of Mr. Delfosse as third commissioner.
A response to this resolution was made on the 21st of March,
when certain correspondence relating to the subject of the
inquiry was communicated to the Senate.' As this corre-
spondence disclosed the objections made by Mr. Fish in 1873
to Mr. Delfosse's selection, it formed the subject of much com-
ment both in Congress and in the public press; but it did not
reveal the steps by which the appointment was finally brought
about. Of this circumstance Mr. Delfosse formally complained,
alleging that by the incomplete publication of the papers an
injury had been done both to his government and to himself.
On the 27th of May the Senate passed another resolution,
requesting coi)ies of all correspondence not theretofore sub-
mitted, and of all memoranda and minutes in the possession of
the government relating to Mr. Delfosse's selection. To this
resolution the President responded on the 17th of June, trans-
mitting a number of papers in which the circumstances of the
appointment by the Austrian ambassador were disclosed.^
The documents and proceedings of the com-
rooumenta and Pro- mission were communicated by the President
T^ of Com- ^ (jongress on the 17th of May 1878 with a
recommendation that the sum necessary to pay
the award be appropriated, but that the Executive be invested
with such discretion in regard to its payment as, in the wis-
dom of Congress, the public interests might seem to require.
Accompanying the message of the President there was a
report of the Secretary of State, Mr. Evarts, in which the
proceedings of the commission were reviewed, and in which it
was pointed out that as the award was payable on or about
the 23d of the ensuing IiiTovember, there would be abundant
time before the expiration of that period to bring to the atten-
tention of the British Government the sentiments of the United
States, as they should be expressed by Congress, on the sub-
ject of the award and its payment and the measure of value
' Sen. Kx. Doc. 44, 45 Cong. 2 seSvS.
2 Sen. Ex. Doc. 100, 45 Conj;. 2 sess.
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748 INTERNATIONAL ARBITRATIONS.
of the fishery privilege involved in it. In the Senate the mes-
sage was referred to the committee on Foreign
pppopnation or ;Rg]a^|.iQus ^hich, while reporting in favor of
Payment of Award. , ' ^ ' ,* , , ,
the payment of the award, recommended that
representations should be made to the British Government
against its justice and validity. This recommendation was
adopted by Congress, and the sum of $5,500,000 was *^ placed
under the direction of the President of the United States with
which to pay the government of Her Britannic Majesty the
amount awarded by the Fisheries Commission, lately assembled
at Halifax, in pursuance of the Treaty of Washington, if, after
correspondence with the British Government on the subject of
the conformity of the award to the requirements of the treaty,
and to the terms of the question thereby submitted to the
Commission, the President shall deem it his duty to make the
payment without further communication with Congress.''^
On the 27th of September 1878 Mr. Evarts
^^loTEwtT ^' communicated the views of the United States
on the subject of the award to Mr. Welsh, the
American minister in London, and directed him to present
them to the British Government by delivering a copy of his
instructions to Lord Salisbury, then secretary of state for
foreign affairs. Adverting to the fact that the arrangement
of the Treaty of Washington as to the fisheries was terminable
at the pleasure of either party in less than seven years, and
that upon such termination the award would have exhausted
its force as compensation for the privileges under the treaty,
Mr. Evarts said that if the United States, by silent payment
of the award, should seem to have recognized the principles
on which it might then be said by Her Majesty's government
to have proceeded, it would have prejudiced its own rights,
and seem to have concealed objections which it should have
openly avowed. It was, he said, to be regretted that the pro-
tocols of the commission made no record of the steps by which
the majority on the one hand reached their award, and the
dissenting commissioner on the other hand arrived at a result
so widely different. In the view of the United States there
was little reason to doubt that if the protocols had exhibited
the elements of computation by which the two concurring com-
missioners made up their judgment, they would have disclosed
the infirmity of the award and rendered any careful demonstra-
tion of it superfluous.
1 For. Rel. 1878, 291.
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THE HALIFAX COMMISSION. 749
The United States, in submitting the fishery question to the
Halifax commission, did not, said Mr. Evarts, waive or curtail
its construction of the convention of 1818, or include in the
submission any question of economic or political advantage
which grew out of access to the inshore fisheries. Both coun-
tries had evinced an amicable preference for practical and
peaceful enjoyment of the fisheries compatible with the common
interest rather than a sacrifice of such common interest to the
purpose of insisting upon extreme claims of right. In this
position the two countries had inclined more and more to
retire from disputes as to the somewhat careless and certainly
incomplete text of the convention of 1818, and to look to the
true elements of profit and prosperity in the fisheries them-
selves, without attention to any sea line of demarcation. In
the conferences of the Joint High Commission it was apparent
that the American high commissioners regarded the oblitera-
tion of the sea line as of no great pecuniary value to the fishing
industry, and they accordingly offered but a million dollars for
the concession of it in perpetuity. On the other hand, it was
not less apparent that the British high commissioners recog-
nized the possession of the United States market as the one
thing essential to the prosperity of the provincial fisheries.
This commercial advantage was measurable in money. It
seemed to the American high commissioners to exceed any
reasonable estimate of the value of the inshore fisberies to the
American fishermen. The freedom of inshore fishing to Amer-
ican fishermen and the freedom of the American market to the
provincial fishermen constituted the basis of the arrangement
of the Treaty of Washington. The British high commission-
ers, however, in addition to the concession of the American
market, secured for the provincial fishermen unrestricted par-
ticipation in the valuable inshore fisheries of the United States
above the thirty-ninth parallel of latitude.
After thus referring to the elements which properly entered
into the estimation of the commissioners at Halifax, Mr. Evarts
endeavored to show, by computation of the value of the privi-
leges conferred by the Treaty of Washington on the fishermen
of the United States and Great Britain, respectively, that the
award could not be supported by any pecuniary measure of
the matters which were properly within the jurisdiction of the
commission. Passing, then, from the essential elements of the
award, he discussed the failure of the three commissioners to
agree in the result and the consequent promulgation of a con-
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75U INTERNATIONAL ARBITRATIONS.
elusion arrived at by a majority only. The question presented
on the face of the award, viz, whetlier the concurrence of the
three commissioners in the award was required by the treaty,
was, said Mr. Evarts, a matter of public discussion in Great
Britain and in the provinces, both before and during the sit-
ting of the commission. In this discussion the legal, political,
and popular organs of opinion seemed quite positive that
unanimity was required by the treaty. In the United States
the matter was little considered, either because the British
view of .the subject was accepted, or because complete confi-
dence in the merits of the American case superseded any
interest in the question. The question involved, first, the text
of the treaty, and second, the surrounding circumstances. By
the Treaty of Washington four boards of arbitration were con-
stituted for the determination of different matters. In respect
of three of them, it was expressly inovided that a majority
should be sufficient for an award. In the case of the Halifax
commission, there was no such provision, and the inference
from this fact was that it was not intended to invest a majority
of that commission with power to make an award. The sug-
gestion that the omission of such a provision was due to inad-
vertence was not to be lightly entertained, since there was
special reason, in the case of the Halifax commission, for
adopting every possible guaranty against unreasonable or
illusory estimates. Mr. Evarts, however, in submitting this
argument, declared that the Government of the United States
would regard the maintenance of entire good faith and mutual
respect in all dejilings, under the beneficent Treaty of Wash-
ington, as of pfiramount concern, and would not assume to
press its own interpretation of the treaty on the point in ques-
tion against the deliberate interi)retation of Her Majesty's
government to the contrary.'
The reply of the Marquis of Salisbury, made
^^^^^^'L^!*^'^'" "^ ^ "^^"^ ^ ^^^' Welsh, bears date the 7th of
ISovember 1878. That Mr. Evarts's reasoning
was powerful, it was not, he said, necessary for him to say;
nor, on the other hand, would Mr. Evarts be surprised to learn
that Her Majesty's government still retained thie belief that
It was capable of refutation. But, in their opinion, they would
not be justified in following him into the details of his argu-
ment. The very matters which Mr. Evarts discussed were
examined at great length and with conscientious minuteness
»For. Kel. 1878, 290.
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THE HALIFAX COMMISSION. 751
by the commission, whose award was under discussion. The
decision of the majority, given after a full hearing of both sides,
was, within the limits of the matter submitted to them, without
appeal. The arguments of Mr. Evarts amounted to a review
of the award upon the questions of fact and of pecuniary com-
putation referred to the commission; for he contended that
the sum awarded was excessive, and that therefore it must
have been arrived at by some illegitimate process. This
amounted, said Lord Salisbury, merely to disputing the judg-
ment which the commissioners had formed upon the evidence.
As to the question whether the award of the commissioners
was required to be unanimous. Lord Salisbury cited Halleck,
Bluntschli, and Calvo, to the effect that the decision of a
majority of arbitrators binds the minority, unless the contrary
is expressed, and declared that he was not aware of any
authorities on international arbitration who could be quoted
in the contrary sense. Lord Salisbury also argued that the
form of the tribunal, and the manner in which it was consti-
tuted, indicated the intention of the contracting parties that a
majority of its members should be competent to render an
a\yard. In conclusion, he expressed confidence that the Gov-
ernment of the United States would not, upon reflection, see
in the considerations which it had advanced any sufficient
reason for treating as a nullity the decision at which the
majority of the commission had arrived.^
^For. Rel. 1878, 316. Senator George F. Edmunds, in the North Amer-
ican Review, 1879, vol. 128, p. 1, in an article on *'The Fishery Award,"
maintained that unanimity was essential to the validity of the award of
the Halifax commission. He ar(]^ued that, in countries whose jurispru-
dence is founded on the Roman law, a majority is in the ordinary course of
procedure sufficieut for a decision, but that in Great Britain and the United
States, where the common law prevails, the opposite rule obtains. On this
ground he impeached the authority of Bluntschli, Heffter, and Calvo, in
whose countries the Homan law is the basis of jurisprudence, and main-
tained that as between Great Britain and the United States unanimity was,
in the absence of a contrary stipulation, essential to an award. It should
not be forgotten, however, that the rules of international law are based
upon the principles of the Roman civil law. This is due to the fact that
international law was first developed by the nations of continental Europe,
of whose jurisiirudence the Roman civil law is the foundation. If, by gen-
eral international practice, based on the authority of international law, the
concurrence of a majority of a board of arbitrators is sufficient for a
decision, the natural inference would be tbat the United States and Great
Britain, in their dealings with each other or with other powers, as inde-
pendent nations, intended to observe that practice, unless they expressly
agreed to disregard it. The opinion of Attorney General Lee {supra, p. 10),
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752 INTERNATIONAL ARBITRATIONS.
On the 21st of November 1878 Mr. Welsh,
^*^wi ^^ ^nder instructions from the President of the
United States, delivered to the British Gov-
ernment a draft for the amount of the award, in so doing
he stated, by direction of the President, that the payment was
to the effect that the decision of a majority oi the commissioners under
Article V. of the Jay Treaty would not be valid, was not accepted by his
government. This fact appears by a letter of Mr. Pickering, Secretary
of State, to Mr. Howell, the United States commissioner, of Angust 22,
1796, with which a copy of the opinion was enclosed. In this letter Mr.
Pickering, aft«r stating that he had consulted the Secretary of the Treas-
ury and the Secretary of War, said :
** With respect to the operation of the decision of the commissioners, if
you proceed to examine and decide the question we are unanimously of the
opinion, contrary to that of the Attorney General, that the determination
of any two of the three commissioners (all being met un the business) will
be binding on both parties : and for the following reasons.
*' 1. That the great object of the treaty was to terminate the differences
between the two nations; among which was the dispute about the river
St. Croix as their boundary.
'*2. That the 5th article declares * that question shall be referred to the
final decision of coinmissioners to be appointed in the manner therein pre-
scribed:' yet on both sides, the very possible, and even probable dissent
of one of the commissioners must have been contemplated when the
article was frumed.
"3. The parties, therefore, could never have intended to leave it posi-
tively in the power of either, against whom the decision should be made,
to defeat its operation, by instructing its commissioner to withhold his
signature from the declaration signed by the other two.
^'4. The nature of such transactions between parties at variance con-
firms the .justness of the opinion, that two out of three agreeing, their de-
cision will be binding; for when each has chosen one, or an equal number,
another is appointed to ensure a majority on one side or the other; one
very important object of such an examination of any disputed point being,
to bring the controversy about it to an end. This is exemplified in the
6th and 7th articles of the treaty, in which provision is made that three
out of the five commissioners shall constitute a quorum for business; and
any two of those three agreeing, their decision wiirbe binding. Thns the
ditlercuces mentioned in these two articles, which must embrace several
millions of property, are to bo terminated; and it is Impossible to believe
that two parties would purposely leave the termination of a third subject
of dlfierence to depend on the mere chance of unanimity among the arbi-
trators; especially when the only obvious and conceivable design of the
appointment of the third commissioner must have been to ensure a deci-
sion "by the agreement of two out of the three ; and when to have rested the
final decision on the precarious and even improbable ground of unanimityy
would have been evidently to risque the grand effect of the whole negotia-
tion, the continuance of peace, by removing every cause of war."
Digitized by LjOOQ IC
THE HALIFAX COMMISSION. 753
made on the ground that the Government of the United States
desired to place the maintenance of good faith in treaties, and
the security and value of arbitration between nations, above all
question in its relations with the British Government as with
all other governments. Under this motive the Government of
the United States had, he said, decided to separate the question
of withholding payment from that of its obligation to pay.
The Government of the United States could not accept the
result of the Halifax commission as furnishing any just meas-
ure of the value of the participation by its citizens in the
inshore fisheries of the British provinces, and it protested
against the actual payment of the award being considered as
in any sense an acquiescence in such measure or as warranting
any inference to that effect.*
1 For. ReL 1878, 334.
5627 48
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Digitized by
^ooQle
CHAPTER XVII.
PUB SEAL AEBITEATION.
By an imperial ukase, or edict, of July 8,
^oii o^a^*'" 1799, Paul I. of Russia granted to the Russian-
American Company its first charter. By this
instrument it was recited that the Emperor, in view of the
" benefits and advantages ^ resulting to his Empire from the
"hunting and trading" carried on by Russian subjects "in
the northeastern seas and along the coasts of America," had
taken the company, which was " organized for the above-named
purpose of carrying on hunting and trading,'' under his imme-
diate and " highest " protection. To this end he was to allow
the commanders of his land and sea forces to employ them, if
occasion should require, for the purpose of aiding the company
in its enterprises, while for the further relief and assistance of
the company he conceded to it the following rights and privi-
leges: (1) To " have the use of all hunting-gi'ounds and estab-
lishments now [then] existing on the northeastern [sic] coast
of America, from the • ♦ • fifty-fifth degree [of north
latitude] to Behring Strait, and also on the Aleutian, Kurile,
and other islands situated in the Northeastern Ocean;" (2)
"to make new discoveries not only north of the fifty-fifth
degree of north latitude, but farther to the south, and to
occupy the new lands discovered, as Russian possessions," if
they were not previously occupied by or dependent upon
another nation ; (3) " to use and profit by everything which
has been or shall be discovered in those localities, on the sur-
face and in the interior of the earth, without competition from
others ; " (4) to " establish settlements in future times, • ♦ ♦
and fortify them to insure the safety of the inhabitants, and to
send ships to those shores with goods and hunters, without
any obstacle on the part of the government;" (5) "to extend
their navigation to all adjoining nations and hold business
intercourse with all surrounding powers, • • • ;" (6) to
756
Digitized by V^OOQ IC
756 INTERNATIONAL ARBITRATIONS.
"employ" persons for the purposes of "navigation, banting,
and all other business;" (7) to cut timber "for repairs, and
occasionally for the construction of new ships; " (8) to buy, at
cost price, from the government i)owder and lead " for shoot-
ing animals, for marine signals, and in all unexpected emer-
gencies on the mainland of America, and on the islands;" (9)
to enjoy, as to its property, an exemption from seizure for the
individual debts of members of the company; (10) to possess
"the exclusive right" to "use and enjoy, in the above de-
scribed extent of country and islandv^^, all profits and advan-
tages derived from hunting, trade, industries, and discovery
of new lands;" (11) to have "full control over all above-
mentioned localities, and exercise judicial powers in minor
cases," and " to use all local facilities for fortifications in the
defense of the country under their control against foreign
attacks."
On September 7, 1821, the Emperor Alex-
TniaMofi82i. ander of Russia issued si ukase, by which
he gave his sanction to certain regulations
adopted by the Russian- American Company respecting foreign
commerce in the waters bordering on its establishments. By
these regulations "the pursuits of commerce, whaling, and
fishing, and of all other industry, on all islands, ports, and gulfs,
including the whole of the northwest coast of America, begin-
ning from Behring's Strait to the fifty- first degree of northern
latitude, also from the Aleutian islands to the eastern coast
of Siberia, as well as along the Kurile islands from Behring's
Strait to the south cape of the fsland of Urup, viz., to 45° 50'
northern latitude," were "exclusively granted to Russian sub-
jects," and all foreign vessels were forbidden, except in case of
distress, "not only to land on the coasts and islands belonging
to Russia, as stated above, but also to approach them within
less than a hundred Italian miles."
A printed copy of this ukase and of the
Btate^ ^ regulations was communicated by ]M. Poletica,
the Russian minister at Washington, to John
Quincy Adams, then Secretary of Stat<>, on January 30, [Feb-
ruary 11,] 1822, Mr. Adams replied on the 25th of February.
At this time the United States, Great Britain, and Russia were
competing claimants to territory on the northwest coast of
America. In his reply Mr. Adams said he was directed to
state that the President had "seen with surprise, in this
edict, the assertion of a territorial claim on the part of Russia,
Digitized by V^OOQlC
FUR 8EAL ARBITRATION. 757
extending to the fifty-first degree of north latitude on this
continent, and a regulation interdicting to all commercial ves-
sels other than Russian, upon the penalty of seizure and con-
fiscation, the approach upon the high seas within one hundred
Italian miles of the shores to which that claim is made to
apply."
Continuing, Mr. Adams said:
"The relations of the United States with his Imperial
Majesty have always been of the most friendly character; and
it is the earnest desire of this Government to preserve them
in that state. It was expected, before any act which should
<1efine the boundary between the territories of the United
States and Kussia on this continent, that the same would have
been arranged by treaty between the parties. To exclude the
vessels of our citizens from the shore, beyond the ordinary dis-
tance to which the territorial jurisdiction extends, has excited
still greater surprise. This ordinance affects so deeply the
rights of the United States and of their citizens, that I am
instructed to inquire whether you are authorized to give
explanations of the grounds of right, upon principles gener-
ally recognized by the laws and usages of nations, which can
warrant the claims and regulations contiiined in it."
On the 28th of February M. Poletica responded. After
reviewing the historical incidents which seemed to him to
establish the title of Russia to the territories which she claimed,
he said that the prohibition of foreign vessels from approach-
ing the northwest coast of North America belonging to Russia
within the distance of a hundred Italian miles was a measure
of prevention, '* exclusively directed against the culpable enter-
prises of foreign adventurers, who, not content with exercising
upon the coasts above mentioned an illicit trade very prejudi-
cial to the rights reserved entirely to the Russian- American
Company, take upon them besides to furnish arms and ammu-
nition to the natives in the Russian x)ossessions in America,
exciting them likewise in every manner to resist and revolt
against the authorities there established." The majority of
the adventurers engaged in these enterprises were, said M.
Poletica, Americans, against whose conduct the Imperial
government had remonstrated to the United States in vain;
and in conclusion he observed :
" I ought, in the last place, to request you to consider, sir,
that the Russian possessions in the Pacific Ocean extend, on
the northwest coast of America, from Behring's Strait to the
fifty-first degree of north latitnde, and on the opposite side of
Asia, and the islands adjacent, from the same strait to the
Digitized by V^OOQ IC
758 INTERNATIONAL ARBITRATIONS.
forty-fifth degree. The extent of sea, of which these posses-
sions form tbe limits, comprehends all the conditions which
are ordinarily attached to 8hut seas (merft fermees), and the
Kussian Government might consequently judge itself author-
ized to exercise upon this sea the right of sovereignty, and
especially that of entirely interdicting the entrance of foreign-
ers. But it preferred only asserting its essential rights, with-
out taking any advantage of localities." ^
Mr. Adams, in answer to this note^ on the 30th of March
1822, told M. Poletica that the ukase in question had for the
first time extended the claim of Eussia on the northwest coast
of America to the fifty-first degree of north latitude; that the
only foundation of this claim appeared to be the existence of
the small settlement of Novo Arkhanghelsk, situated, not on the
American continent, but on a small island in latitude 57°, and
that the principle on which the claim was extended appeared
to be that the fifty-first degree was equidistant from the set-
tlement of Novo Arkhanghelsk and the establishment of the
United States at the mouth of the Columbia Kiver. But it also
appeared, said Mr. Adams, by M. Poletica's statement, " that, in
the year 1799, the limits prescribed by the Emperor Paul to the
Kussian- American Company were fixed at the fifty-fifth degree
of latitude, and that, in assuming now the latitude 51°, a new
pretension is asserted, to which no settlement made since the
year 1799 has given the color of a sanction. This pretension,"
continued Mr. Adams,
"is to be considered not only with reference to the question of
territorial right, but also to the prohibition of the vessels of
other nations, including those of the United States, to approach
within one hundred Italian miles of the coasts. From the
period of the existence of the United States as an independent
nation, their vessels have freely navigated those seas, and the
right to navigate them is a part of that independence. With
regard to the suggestion that the Eussian Government might
have justified the exercise of sovereignty over the Pivcific Ocean
as a close sea because it claims territory both on its American
and Asiatic shores, it may sufiice to say that the distance from
shore to shore on this sea in latitude 51^ north is not less than
ninety degrees of longitude, or four thousand miles. As little
can the United States accede to the justice of the reason
assigned for the prohibition above mentioned. The right of the
United States to hold commerce with the aboriginal natives of
the northwest coast of America, without the territorial juris-
diction of other nations, even in arms and munitions of war, is
' As to the akaso of 1821, Bee Trait(^ de Droit Internationaly by F. de
Martens, professor at the University of St. Petersburg, Paris ed. 1883, 500.
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PUR SEAL ARBITRATION. 759
as clear and indisputable as that of navigating the seas. That
right has never been exercised in a spirit unfriendly to liussia;
and although general complaints have been made on the sub-
ject of this commerce by some of your predecessors, no specific
ground of charge has ever been alleged by them of any trans-
action in it which the United States were, by the ordinary laws
and usages of nations, bound either to restrain or to punish.
Had any such charge been made, it would have received the
most pointed attention of this (lovernment, with the sincerest
and firmest disposition to perform every act and obligation of
justice to yours which could have been required. I am com-
manded by the President of the United States to assure you
that this disposition will continue to be entertained, together
with the earnest desire that the most harmonious relations
between the two countries may be preserved. Kelying upon
the assurance in your note of similar dispositions reciprocally
entertained by His Imperial Majesty towards the United States,
the President is persuaded tliat the citizens of this Union will
remain unmolested in the prosecution of their lawful commerce,
and that no effect will be given to an interdiction manifestly
incompatible with their rights."
Great Britain, <is well as the United States,
Protest of Great protested against the ukase of 1821. On
m'^H ^to ^P"^ ^^' ^^^^' B^vou Tuyll, the successor of
' M. Poletica as Russian minister at Washing-
ton, informed Mr. Adams that the views of the Emperor coin-
cided with the wish expressed by the United States for a
settlement of limits on the northwest coast; that the Imperial
ministry had induced the British Government to furnish Sir
Charles Bagot, their ambassador at St. Petersburg, with full
powers to enter on negotiations for a reconciliation of the dif-
ferences between the two courts in relation to that coast; and
that it was the Emperor's desire that Mr. Middleton, the min-
ister of the United States at the .Eussian capital, should be
invested " with the necessary powers to terminate with the
Imperial cabinet, by an arrangement founded on the principle
of mutual convenience, all the differences" that hiul arisen
between Russia and the United States in consequence of the
ukase. To this proposal the United States readily acceded,
and on July 22, 1823, full power and instructions were sent to
Mr. Middleton.
"From the tenor of the ukase," said these
XMdTton instructions, which proceeded from Mr. Adams,
"the pretensions of the Imperial government
extend to an exclusive territorial jurisdiction from the forty-
fifth degree of north latitude, on the Asiatic coast, to the
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760 INTERNATIONAL ARBITRATIONS.
latitude of fifty-one north on the western coast of the American
continent; and they assume the right of interdicting the navi-
gation and the fishery of all othier nations to tbe extent of one
hundred miles from the whole of that coast. The United States
can admit no part of these claims. Their right of navigation
and of fishing is perfect, and has been in. constant exercise
from tbe earliest times, after the peace of 1783, throughout
the whole extent of the Southern Ocean, subject only to the
ordinary exceptions and exclusions of the territorial jurisdic-
tions, which, so far as Russian rights are concerned, are con-
fined to certain islands north of the fifty-fifth degree of latitude,
and have no existence on the continent of America." In regard
to territorial claims, Mr. Adams said that the right of the
United States from the forty-second to the forty-ninth par-
allel of north latitude on the Pacific Ocean was considered to
be unquestionable, and that the government was willing to
agree to 55^ north latitude as a boundary line. With Mr.
Middleton's instructions there was inclosed a draft of a conven-
tion, consisting of three articles, by the first of which it was
proposed tliat the citizens and subjects of the contracting par-
ties sbould "not be disturbed or molested, either in navigating
or in carrying on their fisheries in the Pacific Ocean or in the
South Sea, or in landing on the coasts of those seas, in places
not already occupied, for the purpose of carrying on their com-
merce with the natives of the country; subject, nevertheless,
to the restrictions and provisions specified" in the second and
third articles. By the second article it was to be agreed, to
the end that such navigation and fishery might not be made a
pretext for illicit trade, that the citizens or subjects of one of
the contracting pjirties should not land without permission on
any part of the coast actually occupied by the settlements of
the other party; and, by the third article, that no settlement
should thereafter be made "on the northwest coast of America
by citizens of the United States or under their authority north,
nor by Kussian subjects, or under the authority of Russia,
south of the fifty-fifth degree of north latitude."
On April 17/5, 1824, Mr.Middleton concluded
Convention of 1824. with Count Nesselrode and M. Poletica, as
representatives of the Russian Governnient,
a convention on the lines of his instructions. By the first
articles it was agreed "that, in any part of the (Jreat Ocean,
commonly called the Pacific Ocean, or South Sea, the respec-
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PUR SEAL ARBITRATION. 761
tive citizens or subjects of tlie liigh contracting Powers shall
be neither disturbed nor restrained, either in navigation or in
fishing, or in the power of resorting to the coasts, upon points
which may not already have been occupied, for the purpose
of trading with the natives, saving always the restrictions
and conditions determined by the following articles." These
"restrictions and conditions," as defined in Articles II. and III.,
were (1) that, "with a view of preventing the rights of navi-
gation and of fishing exercised upon the Great Ocean by the
citizens and subjects of the high contracting Powers from
becoming the pretext for an illicit trade," the citizens of the
United States should not resort to any point where there was
a Eussian establishment without the permission of the gov-
ernor or commander, nor subjects of Russia, without permis-
sion, to any establishment of the United States upon the
northwest coast; and (2) that there should not be formed by
the citizens of the United States, or under the authority of
the United States, "any establishment upon the Northwest
coast of America, nor in any of the islands adjacent, to the
north of fifty four degrees and forty minutes of north latitude,"
nor by Eussian subjects, or under the authority of Eussia,
any establishment south of that line. The sum and substance
of these various stipulations, which were permanent in their
nature, was that there should be no interference with naviga-
tion or fishing, or with resort to unoccupied coasts,.in any part
of the Pacific Ocean, and that the dividing line between the
territorial claims or " spheres of influence" of the United States
and Eussia on the northwest coast of America should be the
parallel of 54^ 40' north latitude. Above that line Eussia was
left by the United States to contest the territory with Great
Britain ; below it the United States was left by Eussia to carry
on a similar contention with tbe same power. The subject of
commercial intercourse was adjusted, temporarily, by Articles
IV. and V. of the convention. By these articles it was pro-
vided that, for a term of ten years from the date of the sig-
nature of the convention, the ships of both powers might
"reciprocally frequent, without any hindrance whatever, the
interior seas, gulfs, harbors, and creeks," on the northwest
coast of America for the purpose of fishing and trading with
the natives; but, from the commerce thus permitted, it was
provided that all spirituous liquors, firearms, other arms, pow-
der, and munitions of war of every kind should always be
Digitized by LjOOQIC
762 INTERNATIONAL ARBITRATIONS.
excepted, each of the contracting parties, however, reserving
to itself the right to enforce this restriction upon its own citi-
zens or subjects. When the commercial privilege thus secured
came to an end, the Kussian Government refused to renew it,
alleging that it had been abused. But under the most-favored-
nation clause contained in Article XI. of the treaty of com-
merce and navigation between the United States and Russia of
December 18, 1832, citizens of the United States enjoj ed on
the Eussian coasts the same privileges of commerce as were
secured by treaty to British subjects.
The convention between Great Britain and
EuMw-BntiBh Con- ^^gg|J^ f^j, ^|j^ settlement of the questions
vention of 1825.
between the two powers, growing out of the
ukase of 1821, was concluded at St. Petersburg on February
28/16, 1825. In regard to the rights of navigation and fishing,
and of lauding on the coasts, its provisions were substantially
the same as those of the convention between Eussia and the
United States. In respect of territorial claims, the following
line of demarcation was adopted : Beginning at the southern-
most point of Prince of Wales Island, which touches the par-
allel of 540 40' north latitude, between 131° and 133o of west
longitude, it was provided that "the line should ascend to the
north along Portland Channel till it strikes, on the continent,
the 56th degree of north latitude; that from this point it
should follow the summit of the mountains situated x)arallel
to the coast as far as the point of intersection of the 141st
degree of west longitude * * * ; and finally, from the said
point of intersection, [should follow] the said meridian line of
the 141st degree, in its prolongation as far as the frozen ocean.'^
It was further expressly stipulated that Prince of Wales Island
should belong wholly to Eussia, and that whenever the " sum-
mit of the mountains" extending "parallel to the coast from
the 56th degree of north latitude to the point of iutersectiou
of the 141st degree of west longitude" should "prove to be at
a distance of more than ten marine leagues," or thirty geo-
graphical miles, "from the oceau," the boundary should be
"formed by a line parallel to the winding of the coast," and
"never to exceed the distance of ten marine leagues there-
from." Such is the description of the line adopted for the pur-
pose of dividing the British territories north of 54^ 40' from
what is now known as Alaska. The convention also secured,
for the space of ten years, the enjoyment of substantially the.
Digitized by LjOOQIC
PUB SEA^, ARBITRATION. 763
same reciprocal privileges of commerce as were contained in
the convention with the United States. These privileges were
renewed by Article XII. of the treaty between Great Britain
and Russia of January 11, 1843.
By a convention signed at Washington on
^!r^ ^5 f^ ^ the 30th of March 1867 the Emperor of Russia,
the TTnited Btatas.
in considepation of the sum of $7,200,000 in
gold, ceded " all the territory and dominion " which he pos-
sessed "on the continent of America and in the adjacent
islands," to the United States. Of this cession the eastern
limit, as described in Article I. of the convention, is the line
of demarcation between the Russian and British possessions
as established by the Anglo-Russian convention of February
28/ 16, 1825. The western limit is defined by a water line, begin-
ning in Behrings Straits, and proceeding north and south as
follows: Beginning at a point in those straits, on the parallel
of 650 30' north latitude, at its intersection by the meridian
which passes midway between the islands of Krnsenstern or
Ingalook, and the island of Ratmanoff or Noonarbook, it " pro-
ceeds due north without limitation " into the "Frozen Ocean."
Such is the northward course. In its southward course it begins
at the same initial point, and "proceeds thence in a course
nearly southwest, through Behring's Straits and Behring's Sea,
so as to pass midway between the northwest point of the island
of St. Lawrence and the southeast point of Cape Ghoukotski,
to the meridian of one hundred and seventy-two west longi-
tude; thence from the intersection of that meridian in a south-
westerly direction, so as to pass midway between the island of
Attou and the Copper Island of the Kormandorski couplet or
group in the North Pacific Ocean, to the meridian of one hun-
dred and ninety-three degrees west longitude, so as to include
in the territory conveyed the whole of the Aleutian Islands
east of that meridian."
By acts of July 27, 1868, March 3,1869, July
^^SSSTtouT* 1, 1870, and March 3, 1873, legislation was
adopted in relation to the territory thus ceded.
These acts, so far as their provisions were of a permanent na-
ture, have been incorporated into the Revised Statutes of the
United States, sections 1954-1976. By the act of July 27,
1868,^ the territory was erected into a customs district under
the name of Alaska, and "the laws of the United States relat-
> 15 Stats, at L. 240; K. S. sec. 1954.
Digitized by LjOOQIC
764 INTERNATIONAL ARBITRATIONS.
ing to customs, commerce, aud navigation,'' were ^^ extended
to and over all the mainland, islands, and waters of the terri-
tory ceded." It was also made unlawful for any person to
^*kili any otter, mink, marten, sable, or fur seal or other fur-
bearing animal, within the limits of said territory, or in the
waters thereof;" but the Secretary of the Treasury was em-
powered to authorize the killing of the mink, marten, sable,
'^or other fur-bearing animal, except fur seals," under such
regulations as he might prescribe. It was made his duty ^^to
prevent the killing of any fur seal" until it should be other-
wise provided by law. By the act, or joint resolution, of March
3, 1869,' the islands of St. Paul and St. George were "declared
a special reservation for government purposes," and it was
made unlawful for any person to land or remain on either of
them without authority from the Secretary of the Treasury.
By tbe act of July 1, 1870,* entitled "An Act to prevent the
extermination of fur-bearing animals in Alaska," the Secretary
of the Treasury was directed to lease, for a term of twenty
years, the right to engage in the taking of fur seals on the
islands for an annual rental of not less than $50,000, and a t^ix
of $2 on each fur-seal skin taken and shipped tlierefrom. The
number of seals to be taken from the island of St. Paul was
limited to 75,000 per annum, and from St. George to 25,000,
and it was made " unlawful to kill any fur seal upon the islands
of St. Paul and St. (icorge, and in the waters adjacent thereto,
except during the months of June, July, September, and Octo-
ber," or "to kill such seals at any time by the use of firearms,
or use other means tending to drive the seals away from said
islands," but the natives of the islands were permitted, sub-
ject to regulations to be prescribed by the Secretary of the
Treasury, to kill such young seals as might be necessary for
their own food and clothing during other months, and such
old seals as might be necessary for their own clothing and for
the manufacture of boats for their own use.
In tbe statutes to which reference has just
Aet of 1889. been made, no definition is attempted of the
extent of the waters to which their provisions
apply; nor did any international controversy subsequently
take place as to the killing of fur seals in Behring Sea until
» 15 Stats, at L. 348 ; R. S. sec. 1954.
«16 Stats, at L. 180; R. S. sect. 1960-1972,
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 765
1886. In 1889, however, while the question that was raised in
1886 was still pending, an effort was made to amend the law so
as to make it ^Mnclnde and apply to" all the waters of BehrlDg
Sea east of the line described in the treaty of cession. On the
25th of February in that year Mr. Stockbridge introduced in
the Senate a bill to amend section 1963 of the Bevised Statutes
of the United States, and to provide for the better protection of
the fur-seal and salmon fisheries of Alaska. This bill was re-
ferred to the Committee on Fisheries, by whom it was reported
with an amendment in the nature of a substitute on the 27th
of February. When the Senate proceeded to its considera-
tion, attention was called to the fact that the bill as amended
related solely to the salmon fisheries, and not to the fur seals,
and the title was changed so as to read, "A bill to provide for
the protection of the salmon fisheries of Alaska." The bill
was then passed and sent to the House of Representatives,
where it was referred to the Committee on Merchant Marine
and Fisheries. From this committee it was reported on the
28th of February by Mr. Dunn, of Arkansas, who at the same
time offered an amendment by which it was proposed to declare
that section 1956 of the Revised Statutes of the United States,
which prohibits the killing of any otter, mink, marten, sable,
or fur seal, or other fur-bearing animal, "within the limits of
Alaska Territory, or in the waters thereof," should "include
and apply to all the waters of Behring Sea in Alaska, embraced
within the boundary lines mentioned and described in the
treaty with Russia, dated March 30, A. D. 1867, by which the
Territory of Alaska was ceded to the United States." On
the bill and this amendment Mr. Dunn asked the previous ques-
tion, and after one or two inquiries the amendment was agreed
to, and the bill as amended was passed.
When the amendment was laid before the Senate, Mr. Ed-
munds observed that it raised a very important and in some
respects a diflftcult question, if it meant what those who ad-
vanced it intended it to mean. If it did not mean that, and
only applied to the taking of seals by citizens of the United
States in Behring Sea, while subjects of Great Britain were to
be permitted to fish there, it made, he said, a very curious dis-
crimination. He moved to refer the amendment to the Com-
mittee on Foreign Relations. This motion was supported by
Mr. Hoar, who said that the amendment presented the great
Digitized by LjOOQIC
766 INTERNATIONAL ARBITRATIONS.
qiiestion whether the United States proposed ^^ to assert the
doctrine of mare clausum in regard to a sea larger than the
Mediterranean and the gateway to which is 450 miles wide."
Mr. Stockbridge expressed the hope that the bill and amend-
ment would be referred. Mr. Morgan remarked that he did
not understand that the amendment presented the question of
mare clansum. He did not, he said, admit that << Russians former
assertion of the right to control the waters of the Behring
Sea,'' was ^'entirely unjust, and that in purchasing Alaska
we did not succeed to her rights in that particular." In his
opinion the question presented by the amendment was simply
" whether the United States, having on the Aleutian Islands
very valuable fur-seal fisheries, have the right to protect those
animals in seas that do not belong strictly to the mare clamum
principle, and which are very valuable to commerce, against
' that kind of fishing and hunting that is utterly destructive of
the whole of the generation of fur-aeals." The bill was referred
to the Committee on Foreign Helations without objection, and
was reported back with the recommendation that the Honse
amendment be disagreed to. Mr. Sherman, who, as chairman
of the committee, made the report, stated that this recommen-
dation was not based upon any opinion as to the merits of the
House amendment, but upon the fact that it had no connec-
tion with the bill itself, and ought to be considered separately.
The amendment was then rejected, and a motion was made
for a conference with the House of Representatives. This
motion was agreed to, and Messrs. Sherman, Edmunds, and
Morgan were appointed as conferees on the part of the Senate.
In the House the conference asked for by the Senate was agreed
to, and Messrs. Dunn, McMillin, and Felton were appointed as
conferees. On the 2d of March a report of the conference was
presented both in the Senate and in the House, and was agreed
to. By this report section 1956 of the Revised Statutes of the
United States was merely " declared to include and apply to
all the dominion of the United States in the waters of Behring
Sea," and it was made the duty of the President each year to
issue his proclamation, warning all persons against entering
those waters for the purpose of violating the provisions of that
section, and to cause one or more vessels of the United States
» Congressional Record, vol. 20, part 3, pp. 2282, 2372, 2426, 2448, 2502, 2563,
2614, 2672.
Digitized by LjOOQIC
FUE SEAL ARBITRATION. 767
to cruise in the waters in question, and arrest all persons and
seize all vessels found to be or to have been engaged in any
violation of the laws of the United States therein.^ The bill
as thus amended and passed was approved by the President
March 2, 1889.^
On the 3d of August 1870 the acting Sec-
Lease of the Seal retary of the Treasury, in pursuance of the
Iriaiidsmi870. ^^ ^^ j^j^ ^^ ^^^^^ ^^^^^ ^^^ privilege of
taking fur seals on the islands of St. Paul and St. George to the
Alaska Commercial Company, a corporation organized under
the laws of the State of California, of which Mr. John F. Miller
was president. In consideration of this privilege, which was
granted for twenty years from the 1st of May 1870, the com-
pany agreed to pay into the Treasury of the United States an
annual sum of $55,000 and a tax or duty of $2 on each fur-seal
skin taken and shipped by it, and also the sum of G2^ cents
for each fur-seal skin taken and shipped, and 55 cents a gallon
for each gallon of oil obtained from the seals for sale on the
islands or elsewhere and sold by the company. It also agreed
to furnish certain provisions and maintain a school for the
inhabitants of the islands of St. Paul and St. George. It
engaged not to kill on the former island more than 75,000 fur
seals annually, nor on the latter more than 25,000; nor to kill
any fur seal on the islands in any other months than June,
July, September, and October of each year; nor to kill seals
at any time by the use of firearms or other means tending to
drive them from the islands; nor to kill any female seal, or
any seal less than one year old; iior to kill any seal in the
waters adjacent to the islands or on the beaches, cliffs, or
rocks where the seals haul up from the sea to remain. Apart
from the prohibition to kill any seals "in the waters adjacent''
to the islands of St. Paul and St. George, there was no refer-
ence in the lease to marine jurisdiction.
On the 25th of March 1872 Mr. T. G. Phelps,
te % 1872 *^^^ collector of customs at San Francisco, sent
to Mr. Boutwell, then Secretary of the Treas-
ury, a paragraph clipped from the San Francisco Daily Chronicle
of the 21st of that month, in which it was stated that "parties
in Australia" were "preparing to fit out an expedition for the
capture of fur seals in Behring Sea;" that "a Victoria com-
J 25 Stats. atL. 1009.
Digitized by LjOOQIC
768 INTERNATIONAL ARBITRATIONS.
pany was organized for catching fur seals in the North Pacific ;''
and that an agent, representing some eastern capitalists, had
been in San Francisco <' making inquiries as to the feasibility
of organizing an expedition for like purposes." Mr. Phelps
said that, in addition to the several schemes mentioned in the
Daily Chronicley he had received information that an expedition
was being fitted out in the Hawaiian Islands for the same pur-
pose. He stated that it was well known that during the month
of May and the early part of June, the fur seals in their migra-
tion from the southward to the islands of St. Paul and St. George
uniformly moved through Unimak Pass in large numbers, and
also through the narrow straits near that pass which sepa-
rate several small islands from the Aleutian group. The object
of tlie expeditions in question was to intercept the fur seals at
these narrow passages, and there, by means of small boats
manned by skillful Indians or Aleutian hunters, to slaughter
the animals in the water after the manner of hunting sea
otters. The evil to be apprehended from such a proceeding
was not so much, said Mr. Phelps, the loss resulting from the
destruction of the seals at those places, as their diversion from
their accustomed course to the islands of St. Paul and St.
(leorge, which were their only haunts in the United States. He
suggested whether the act of July 1, 1870, did not authorize
interference by means of revenue cutters '^to prevent foreign-
ers and others from doing such an irreparable mischief to this
valuable interest." On the 19th of April 1873 Mr. Boutwell
replied that the Treasury Department had been advised that
such an employment of the revenue cutters would not be "a
paying one, inasmuch as the seals go singly or in pairs, and
not in droves, and cover a large region of water in their home-
ward travel," and that it was not apprehended that they would
be driven from their accustomed resorts, even were such
attempts made. "In addition," said Mr. Boutwell, "I do not
see that the United States would have the jurisdiction or
power to drive off parties going up there for that purpose,
unless they made such attempts within a marine league of the
shore. As at present advised, I do not think it expedient to
carry out your suggestions, but 1 will thank you to commuui-
cate to the Department any further facts or information you
may be able to gather upon the subject."^
^ Papers relating to Bebriiig Sea Fisheries, 124-126.
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 769
This letter does not explicitly refer to the waters of Behring
Sea.»
Those waters were, however, expressly re
^ ^ WSl^"*"' ^^^^^^ to in a letter of Mr. H. F. French, Act-
ing Secretary of the Treasury, of March 12,
1881, addressed to a Mr. D. A. Ancona, Ko. 717 O'Farrell
street, San Francisco, who had made an inquiry as to the in-
terpretation of the tcTins "waters thereof" and "waters adja-
cent thereto," in the laws prohibiting the killing of fur-bearing
animals in Alaska.^ Mr. French said :
"Presuming your inquiry to relate more especially to the
waters of western Alaska, you are informed that the treaty
with Russia of March 30, 1867, by which the Territory of
Alaska was ceded to the United States, defines the boundary
of the territory so ceded. This treaty is found on pages 671
to 673 of the volume of treaties of the Revised Statutes. It
will be seen thereft'om that the limit of the cession extends
from a line starting from the Arctic Ocean and running through
Behring Strait to the north of St. Lawrence Islands. The line
runs thence in a southwesterly direction, so as to pass midway
between the island of Attou and Copper Island of the Korman-
dorski couplet or group in the North Pacific Ocean, to meridian
of 11)3 degrees of west longitude. All the waters within that
boundary to the western end of the Aleutian Archipelago and
chain of islands are considered as comprised within the waters
of Alaska Territory. All the penalties prescribed by law
against the killing of fur-bearing animals would therefore
attach against any violation of law within the limits before
described ""^
On the 16th of March 1886 a copy of this
t«*fiMe *" ^®*^®^ ^^® communicated by Mr. Manning,
then Secretary of the Treasury, to the col-
lector of customs at San Francisco, with the request that, as
' In a letter of Jannary 18, 1888, to Mr.W.W. Eaton, then one of the rep-
resentatives of the Alaska Commercial Company, Mr. Bontwell, referring
to the letter which he had written as Secretary of the Treasury, said that,
when compared with the letter to which it was a reply, it wjis apparent
that it *'had reference solely to the waters of the Pacific Ocean south of
the Aleutian Islands." (House Report 3883, 50 Cong. 2 sess. XII.)
^The letter of Mr. French to Mr. Ancona has often been printed and
referred to as a communication a<ldressed to the collector of customs at
San Francisco. This is an error. In response to an inquiry whether Mr.
Ancona held that position in 1881, the Acting Secretary of the Treasury,
under date of September 1, 1896, writes that "he was not in the service as
such officer at the date mentioned."
3 8. Ex. Doc. 106, 50 Cong. 2 sess. 281.
5627 49
Digitized by VjOOQ IC
770 INTERNATIONAL ARBITEATI0N8.
certain persons at San Francisco were understood to contem-
plate the fitting out of expeditions to kill fur seals, he would
give the letter publicity in order that such persons might be
informed of the construction placed by the Treasury Depart-
ment on the statutes of the United States.^
On the 27th of September 1886 Sir Lionel S.
. Seisoxet in 1886. SackviUe West, then British minister at Wash-
ington, informed Mr. Bayard, Secretary of
State, that Her Msyesty's government had received a telegram
from the commander in chief of Her Majesty's naval forces on
the Pacific station respecting the alleged seizure of three Brit-
ish Columbian sealing schooners by the United States revenue
cutter Corwiity and that he was in consequence instructed to
ask to be furnished with any particulars which the Govern-
ment of the United States might possess on the subject. On
the 2l8t of October, no reply to this inquiry having been made.
Sir Lionel West, by direction of the Earl of Iddesleigh, then
principal secretary of state for foreign affairs, protested against
the seizures, reserving all rights to compensation; and on the
12th of November he left at the Department of State another
protest, dated the 30th of October and signed by the Earl of
Iddesleigh, in which it was stated that further details in regard
to the seizures having been received, Her Majesty's govern-
ment coDsidered it incumbent on them to bring to the notice of
the United States the facts of the case as they had been derived
from British sources. Lord Iddesleigh said that according to
the depositions of the officers and men the vessels, whose names
were the Carolenaj Onward^ and Thornton^ were all in the open
sea in Behring Sea, more than sixty miles from the nearest
land; that on being seized they were towed by the Corwin to
Unalaska, where, with the seal skins on board at the time of
the capture, they were detained by the United States authori-
ties, and that the crews of the Carolena and Thornton^ with the
exception of the captain and one man on each vessel, who were
also detained, were sent to San Francisco and turned adrift,
while the crew of the Onward were kept at Unalaska. Lord
Iddesleigh then quoted ft'om a Sitka newspaper of the 4th of
September 1886 a report to the effect that the master and mate
of the Thornton were on the 30th of August brought before
Judge Dawson, of the United States district court at that place,
for trial ; that the evidence given by the officers of the revenue
' House Report 3885, 50 Cong. 2 seas. xi.
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 771
cutter showed that the vessel was seized aboat sixty or sev-
enty miles southeast of St. Georges Island for the oflfense of
hunting and killing seals in that part of Behriug Sea east of
the water line in the treaty of 1867; that the judge in his
charge to the jury, after quoting the first article of that
treaty, declared that all the waters east of the line in ques-
tion were "comprised within the waters of Alaska, and all
the penalties prescribed by law against the killing of fur-
bearing animals must therefore attach against any violation
of law within the limits heretofore described;" and that, the
jury having found a verdict of guilty, the master of the
Thornton was sentenced to imprisonment for thirty days
and to pay a fine of $500, and the mate to imprisonment for
thirty days and to pay a fine of $300. Lord Iddesleigh fur-
ther said that there was reason to believe that the masters
and mates of the Onward and Carolena had since been tried
and sentenced to undergo similar penalties. From these fa(*.ts,
observed his lordship, the authorities of the United States
appeared to lay claim to the sole sovereignty of that part of
Behring Sea lying east of the westerly boundary of Alaska,
including a stretch of sea extending in its widest part some
GOO or 700 miles westerly from the mainland. He said Her
Majesty's government did not doubt that the United States
would admit the illegality of the proceedings against the Brit-
ish vessels and British subjects in question, and cause reason-
able reparation to be made for the wrongs and losses to which
they had been subjected.^
In regard to the seizures the Department
Lack of Offidailn-^f g^ate then possessed no information, and
^mi^n a» to^^ ^^.^ ground Mr. Bayard, immediately on
the receipt of Lord Iddesleigh's protest, ex-
plained his failure to reply to the British minister's notes of
the 27th of September and the 2Ist of October, saying that he
had promptly applied to his colleague, the Attorney-General,
to procure an authentic report of the judicial proceedings, and
that the delay in furnishing them doubtless had arisen from
the remoteness of the place of trial. And he promised, as
soon as he should be able to do so, to communicate "the facts
rs ascertained in the trial and the rulings of law as applied
by the court." On the 7th of December 1886 the British
minister again called attention to the subject. He said that
1 S. Ex. Doc. 106, 50 Cong. 2 seas. 7.
Digitized by LjOOQIC
772 INTERNATIONAL ARBITRATIONS.
veHsels were, as usual, equipping iu British Columbia for fish-
ing in Behring Sea; that the Canadian Government, in the
absence of information, were desirous of ascertaining whether
such vessels, fishing in the open sea and beyond the territorial
waters of Alaska, would be exposed to seizure, anfl that Her
Majesty's government at the same time would be glad if some
assurance should be given that, pending the settlement of the
question, no such seizures of British vessels would be made
in BehriHg Sea, Writing yet again, on the 9th of January
1887, the British minister adverted to the " grave representa-
tions madeby Iler Majesty's government," and expressed 'Hhe
hope that the cause of the delay complained of in answering
the representations of Her Majesty's government on this grave
and imi>ortant matter may be speedily removed."* On the
12th of January Mr. Bayard, expressing regret that he should
not have obtained copies of the judicial proceeding in time to
have made the urgent and renewed application of the Earl
of Iddesleigh supertious, informed the British minister that
he had from week to week been awaiting the arrival of the
papers from Sitka, and that telegraphic instructions had been
sent to expedite the furnishing of them. His delay in meeting
the questions involved had been enforced " by the absence of
requisite information as to the facts," the Department of State
not having as "yet been placed in possession of that accurate
information which would justify its decision in a question"
which the British minister was "certainly warranted in consid-
ering to be of gravii imi)ortance." " I shall," said Mr. Bjiyard,
in conclusion, "diligently endeavor to procure the best evidence
possible of the matters inquired of, and will make due response
thereupon when the opportunity of d<*cision is afforded to me.
You require no assurance that no avoidance of our interna-
tional obligations need be apprehended."^
On the .'id of February 1887 Mr. Bayard, re-
°'*o7v^U*"* plying to yet another inquiry of the British
minister, stated that information had been re-
ceived that the judicial documents had left Sitka and were on
their way to Washington, and added: "In this connection I
take occasion to inform you that, without conclusion at this
time of any questions which may be found to be involved in
these cases of seizure, orders have been issued by the Presi-
' S. Ex. Doc. 106, 50 Coug. 2 eess. 7.
" Id. 11.
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 773
deut's directiou lor the discoutiiiuaiiee of all peiidiug i>roceed-
iiigs, the discharge of the vessels refened to, and the release
of all i)ersoiis under arrest in connection therewith."*
On the 4th of April 1887 the British min-
^^'^^"^A^nstSei ^®^^^' adverting to the circumstance that the
OTM in Future. Ashing season in Behrin g Sea was approaching,
inquired whether the owners of such vessels
as were fitting out for operations in those waters might "rely
on being unmolested by the cruisers of the United States when
not near land." On the 12th of April Mr. Bayard replied that
the '* remoteness of the scene of the fur-seal fisheries and the
special peculiairities of that industry" had "unavoidably de-
layed the Treasury officials in framing appropriate regulations
and issuing orders to United States vessels to police the Alas-
kan waters for the protection of the fur seals from indiscrimi-
nate sljiughter and consequent speedy extermination;" that
the laws of the United States on the subject, as found in sec-
tions 195()-1971 of the Revised Statutes, had been in force for
upwards of seventeen years, and that prior to the seizures of
1886 "but a single infraction is known to have occurred, and
that was promptly punished;" that the "question of instruc-
tions to Government vessels in regard to preventing the indis-
criminate killing of fur seals" was under (consideration, and
that information would be given at the earliest day possible as
to "what has been decided, so that British and other vessels
visiting the waters in question can govern themselves accord-
ingly."^
A copy of the judicial proceedings in the
Beception of Judi- ^.^ges of the CaroUna^ Onward^ and Thornton
at"wasMnir^*^ was received at the Department of State on
April 9, 1887. A copy of it was communicated
to the British minister on the 11th of July.^ It embraced the
proceedings against the vessels, but not those against their
officers. It disclosed the fact, however, that the three vessels
were condemned on October 4, 1886, for having been "found
engaged in killing fur seal within the limits of Alaska Ter-
ritory and in the waters thereof in violation of section 1956 of
the Revised Statutes of the United States," and that, after
some further proceedings, they were, on February 9, 1887,
> S. Kx. Doc. 106, 50 Cong. 2 seas. 12.
«Id, 13.
'Id. 17.
Digitized by LjOOQIC
774 INTERNATIONAL ARBITRATIONS.
ordered to be sold. It thus appeared that the eondemation of
the vessels rested on the same grouiui as the conviction and
imprisonment of their officers.^
On the 11th of August 1887 the British
SMxnres in 1887. minister informed Mr. Bayard that the com-
mauder in chief of Her Majesty's naval forces
in the Pacific had reported that three more British Columbian
sealing schooners had been seized by United States cruisersjn
Behring Sea a long distance from Sitka, and that several other
vessels were in sight being towed in. In conveying this infor-
mation the British minister stated that he was requested by
the Marquis of Salisbury, then principal secretary of state for
foreign affairs, to say that, in view of "the assurances'' given
in Mr. Bayard's note of the 3d of February, Her Majesty's
government had assumed that, pending the conclusion of dis-
cussions between the two governments on the general questions
involved, no further seizures would be made by order of the
United States. On the 13th of August Mr. Bayard, replying
to this communication, disclaimed having given any "assnr
ances " of the puri)ort asserted, his note of the 3d of February
having merely stated that, without conclusion at that time of
any questions which might be found to be involved, the Presi-
dent had directed the discharge of the vessels then under seiz-
ure, and the discontinuance of all proceedings in connection
therewith. He further declared that he had had "no reason
to anticipate any other seizures," and that he had " no knowl-
edge whatever of the circumstances under which such seizures
have been made."^ It subsequently transpired that the new
^ The text of Judge Dawson's charge to the jury in the case of the officers
of the Thornton on August 30, 1886, may be found at page 143, Appendix 1,
Case of the United States, Fur-Seal Arbitration, 11. After quoting the
hinguage of the first article of the treaty of cession of March 30, 1867, ho
declared that ** Russia had claimed and exercised jurisdiction over all that
portion of Behring Sea embraced within the boundary lines set forth in the
treaty;" that ** that claim had been tacitly recognized and acquiesced in
by the other maritime powers of the world for a long series of years prior to
the treaty ; " and that the dominion of Russia having passed to the United
States, ''all the waters within the boundary set forth in this treaty to the
western end of the Aleutian Archipelago and chain of islands are to be
considered as comprised within the waters of Alaska, and all the penalties
prescribed by law against the killing of fur- bearing animals must there-
fore attach against any violation of law within the limits before described.''
The report of the charge in the Sitka newspaper of September 4, 1886,
which was quoted by I^ord Iddesleigh, appears to have been correct.
«S. Ex. Doc. 106, 50 Cong. 2 sess. 49.
Digitized by LjOOQIC
PUR SEAL ARBITRATION. 775
seizures were made by the United States revenue cutter Eieh-
ard Btishj and that the names of the vessels were the Orace^
Dolphin^ and W. P. Sayward. Other seizures also were made.
On the nth of October 1887 Judge Dawson
J^ ^ filed an elaborate opinion in the cases of the
Orace, Dolphirij and certain other vessels, all
of which he declared to be forfeited. In this opinion he said
that the issue presented involved " an examination of a most
pertinent and critical question of international law," and that '
it would be ^^ necessary to ascertain, first, the right of the
Imperial Government of Bussia to the Behring Sea anterior
to the treaty of March 30, 1867.'' " For infornjation upon this
subject," he remarked, ^'I am largely indebted to Mr, N. L.
Jefiiies for a collection and citation of authorities, and his-
torical events, and for the want of books at my command
upon this question, I am compelled to rely for historical facts
upon his carefully prepared brief." ^ The brief in question
was devoted to the maintenance of the claim of mare clausunij
and Judge Dawson, after reviewing and adopting the various
arguments advanced in it, reached the same conclusion as
that at which he had arrived in the cases previously decided
by him.*
On the 29th of September 1887 the British
^'^'rf^agf minister, referring to Mr. Bayard's note of the
3d of the preceding February, inquired the
reason for the delay in the release of the CaroUna^ Onwardj
and Thornton, the first vessels that were seized, saying that
Her Majesty's government had been officially informed that
they had not been discharged. In response to an inquiry on
the subject, Mr. Bayard was informed by Mr, Garland, then
Attorney-General of the United States, on the 12th of October,
that he had just received a letter from the marshal of the United
States at Sitka, in which the latter said that the telegraphic
order of the 26th of the preceding January, directing the ves-
sels to be released, "had been thought to be not genuine, and
had not been acted upon." Mr. Garland stated that he had
again telegraphed to the marshal, directing the execution of
the order of release.^
1 The title of the brief is ''The Dominion of Behring Sea.'' It is dated
at Washington^ January 12, 1887, and is signed ''N. L. Jewries, Atiy. for
the Alaska Com. Co" It seems that there was also a brief prepared in the
Attorney-General's office. (N. Am. Rev. CLXI. (1895), 694.)
2 Case of the United States, Appendix 1. 115-121, Fur-Seal Arbitration, II.
3 S. Ex. Doc. 106, 50 Cong. 2 sess. 56.
Digitized by LjOOQIC
776 INTERNATIONAL ARBITRATIONS.
On tlje 19tb of August 1887 Mr. Bayard ad-
Pn^oMi fnrProteo- dressed to the ministers of the United States
tion of Fur SbaIb -,^ >^ ^^ -r*. .
by Jomt Aetion. ^ France, Germany, Great Britain, Japan,
Eussia, and Sweden and Norway an instruc-
tion directing them to request the governments to which they
were respectively accredited to cooperate with the United
States " for the better protection of the tur-seal fisheries in
Behring Sea." Mr. Bayard said:
^' Without raising any question as to the exceptional meas-
ures which the peculiar character of the property in question
might justify this government in taking, and without reference
to any exceptional marine jurisdiction that might properly be
claimed for that end, it is deemed a<lvi8able — and I am in-
strncted by the President so to inform you — ^to attain the
desired ends by international cooperation. It is well known
that th^ unregulated and indiscriminate killing of seals in
many parts of the world has driven them from place to place,
and, by breaking up their habitual resorts, has greatly reduced
their number. Under these circumstances, and in view of the
common interest of all nations in preventing the indiscriminate
destruction and consequent extermination of an animal which
contributes so importantly to the commercial wealth and gen-
eral use of mankind, you are hereby instructed to draw the
attention of the government to which you are accredited to
the subject, and to invite it to enter into such an arrangement
with the Government of the United States as will prevent the
citizens of either country from killing seals in Behring Sea at
such times and places, and by such methods as at present are
pursued, and which threaten the speedy cxterminatian of those
animals and consequent serious loss to mankind."^
The French Government, while adverting to
BMi^MiofForeigii ^^^ ^^^^ ^^^^ ^^^^^ ^^^^ ^^^ ^ French
ships engaged in the seal fisheries, expressed
a willingness to consider a draft of a convention for the pur-
pose indicated by Mr. Bayard.^ The Government of Japan
expressed anxiety to enter into an arrangement which should
provide for the protection not only of the fur seals in Behring
Sea, but also of the sea otter and fur seals on the coasts of
Japan.^ The Government of Russia expressed its concurrence
in Mr. Bayard's views, saying that it had for a long time been
considering what means could be taken to remedy a state of
things which was prejudicial not only to commerce and rev-
' S. Ex. Doc. 106, 50 Cong. 2 sess. 84.
=Id. 85.
3 Id. 107.
Digitized by LjOOQIC
PUR SEAL ARBITRATION. 777
enue, but also to the well-being and even to the existence of
its people in the extreme northeast.^ Pursuant to the sugges-
tion of Mr. Bayard, the Eussian ambassador at London was
instructed to put himself in coramunication with the minister
of the United States at that capital, with a view to promote
the common object of the two governments.
On the part of Great Britain, Lord Salis-
'^^^^ * bury promptly acquiesced in the proposal of
Mr. Bayard for cooperative action, and sug-
gested to Mr. Phelps, then minister of the United States in
London, that he should obtain from his government and sub-
mit to him a sketch of a system of regulations which would be
adequate for the purpose sought to be attained.
Such a sketch Mr. Bayard sent to Mr. Phelps
Mr. Bayard'i Pro- ^^ the 7th of February 1888. In it he pro-
^^^**^ **' "* posed, as the only way to obviate the destruc-
tion of the fur seals in Behring Sea, that the
United States, Great Britain, and other interested powers
should " take concerted action to prevent their citizens or sub-
jects from killing fur seals with firearms, or other destructive
weapons, north of 50° of north latitude, and between 160^ of
longitude west and 170o of longitude east from Greenwich,
during the period intervening between April 15 and Novem-
ber 1." The grounds of this proposal Mr. Bayard set forth as
follows:
"All those who have made a study of the seals in Behring
Sea are agreed that, on an average, from five to six months —
that is to say, from tiie middle or toward the end of spring till
the middle or end of October — are spent by them in those
waters in breeding and in rearing their young. During this
time they have their rookeries on the islands of St. Paul and
St. George, which constitute the Pribilof group and belong to
the Uni^ States, and on the Commander Islands, which
belong to Eussia. But the number of animals resorting to the
latter group is small in comparison with that resorting to the
former. The rest of the year they are supposed to spend in
the open sea south of the Aleutian Islands.
" Their migration northward, which has been stated as tak-
ing place during the spring and till the middle of June, is
made through the numerous passes in the long chain of the
Aleutian Islands, above which the courses of their travel con-
verge chiefly to the Pribilof group. During this migration the
female seals are so advanceJd in pregnancy that they generally
'S. Ex. Doc. 106, 50 Cong. 2 sess. 116.
Digitized by LjOOQ IC
778 INTERNATIONAL ARBITRATIONS.
give birth to their young, which are comTnonly called paps,
within two weeks after reaching the rookeries. Between the
time of the birth of the pups and of the migration of the
seals from the islands in the autumn the females are occupied
in suckling their young; and by far the largest part of the
seals found at a distance from the islands in Behring Sea dar-
ing the summer and early autumn are females in search of
food, which is made doubly necessary to enable them to suckle
their young as well as to support a condition of renewed preg-
nancy, which begins in a week or a little more after their
delivery.
<^The male seals, or bulls, as they are commonly called,
require little food while on the islands, where they remain
guarding their harems, watching the rookeries, and sustaining
existence on the large amount of blubber which they have
secreted beneath their skins and which is gradually absorbed
during the five or six succeeding months.
^< Moreover, it is impossible to distinguish the male from the
female seals in the water, or pregnant females from those that
are not so. When the animals are killed in the water with
firearms many sink at once and are never recovered, and some
authorities state that not more than one out of three of those
so slaughtered is ever secured. This may, however, be an
overestimate of the number lost.
^'It is thus apparent that to permit the destruction of the
seals by the use of firearms, nets, or other mischievous means
in Behring Sea would result in the speedy extermination of the
race. There appears to be no diflFerence of opinion on this sub-
ject among experts. And the fact is so clearly and forcibly
stated in the report of the inspector of fisheries for British
Columbia of the 31st of December 1886 that I will quote
therefrom the following pertinent passage:
"'There were killed this year, so far, from 40,000 to 50,000
fur seals, which have been taken by schooners from San Fran-
cisco and Victoria. The greater number were killed in Behring
Sea, and were nearly all cows or female seals. This enormous
catch, with the increase which will take place when the vessels
fitting up every year are ready, will, I am afraid, soon deplete
our fur-seal fishery, and it is a great pity that such a valuable
industry could not in some way be protected.'*
* « * u To prevent the killing within a marine belt of 40
or 50 miles from the islands during that period wouhl be inef-
fectual as a preservative measure. This would clearly be so
daring the approach of the seals to the islands. And after
their arrival there such a limit of protection would also be in-
sufiicient, since the rapid progress of the seals through the
water enables them to go great distances from the islands in
so short a time that it has been calculated that an ordinary
> Report of Thomas Mowat, inspector of fisheries for British ColambiA»
Canadian Sessional Papers, vol. 15, No. 16, 268: Ottawa, 1887.
Digitized by LjOOQIC
PUR SEAL ARBITRATION. 779
seal conld go to the Aleutian Islands and back, in all a distance
of 300 or 400 miles, in less than two days.
" On the Pribilof Islands themselves, where the killing is at
present under the direction of the Alaska Commercial Company,
which by the terms of.its contract is not permitted to take over
100,000 skins a year, no females, pups, or old bulls are ever
killed, and thus the breeding of the animals is not interfered
with. The old bulls are the first to reach the islands, where
they await the coming of the females. As the young bulls
arrive they are driven away by the old bulls to the sandy part
of the islands, by themselves. And these are the animals that
are driven inland and there killed by clubbing, so that the
skins are not perforated, and discrimination is exercised in
each case.
^' That the extermination of the fur seals must soon take place
unless they are protected from destruction in Behring Sea is
shown by the fate of the animal in other parts of the world, m
the absence of concerted action among the nations interested
for its preservation. Formerly many thousands of seals were
obtained annually from the South Pacific Islands, and from the
coasts of Chile and South Africa. They were also common in
the Falkland Islands and the adjacent seas. But in those
islands, where hundreds of thousands of skins were formerly
obtained, there have been taken, according to the best statis-
tics, since 1880, less than 1,500 skins. In some places the indis-
criminate slaugliter, especially by use of firearms, has in a few
years resulted in completely breaking up extensive rookeries.
'^At the present time it is estimated that out of an aggregate
yearly yield of 185,000 seals from all parts of the globe, over
130,000, or more than two-thirds, are obtained from the rook-
eries on the American and Russian islands in Behring Sea.
Of the remainder, the larger part are taken in Behring Sea,
although such taking, at least on such a scale, in that quarter
is a comparatively recent thing. But if the killing of the fur
seal there with firearms, nets, and other destructive implements
were permitted, hunters would abandon other and exhausted
places of pursuit for the more productive field of Behring Sea,
where extermination of this valuable animal would also rapidly
ensue.
<^It is manifestly for the interests of all nations that so
deplorable a thing should not be allowed to occur. As has
already been stated, 6n the Pribilof Islands this (xovernment
strictly limits the number of seals that may be killed under
its own lease to an American company; and citizens of the
United States have, during the past year, been arrested and
ten American vessels seized for killing fur seals in Behring Sea.
"England, however, has an especially great interest in this
matter, in addition to that which she must feel in preventing
the extermination of an animal which contributes so much to
the gain and comfort of her people. !N^early all undressed fur-
seal skins are sent to London, where they are dressed and dyed
Digitized by LjOOQIC
780 INTERNATIONAL ARBITRATIONS.
for the market, and wliere many of tliem are sold. It is stated
that at least 10,000 people in that city find profitable employ-
ment in this work ; far more than the total number of people en
gaged in banting the fur seal in every part of the world. At
the Pribilof Islands it is believed that there are not more than
400 persons so engaged; at Commander Islands, not more
than 300; in the Northwest coast fishery, not more than 625
Indian hunters and 100 whites; and in the Cape Horn fishery,
not more than 400 persons, of whom perhaps 300 are Chileans.
Great Britain, therefore, in co operating with the United
States to prevent the destruction of fur seals in Behring Seii
would also be i)erpetuating an extensive and valuable industry
in which her own citizens have the most lucrative share.
"I inclose for your information copy of a memorandum on
the fur-seal fisheries of the world, prepared by Mr. A. Howard
Clark, in response to a request made by this Department to
the United States Fish Commissioner. 1 inclose also, for your
further information, co])y of a letter to me, dated December
3d last, from Mr. Henry W. Elliott, who has spent much time
in Alaska, engaged in the study of seal life, upon which he is
well known as an authority. I desire to call your especial
attention to what is said by Mr. Elliott in respect to the new
method of catching the seals with nets.
*'As the subject of this dispatch is one of great importa<nce
and of immediate urgency, I will ask that you give it as early
attention as possible." '
Mr. Phelps at once presentetl to Lord Salisbury a copy of
these instructions and arranged for an interview with the
Kussian ambassador; and on the 25th of February he reported
that Lord Salisbury had assented to the proi)osition to estab-
lish by mutual arrangement " a close time for fur seals, between
April 15 and November 1, and between 160° of longitude west
aud 170O of longitude east, in the Behring Sea," and that his
lordship would join the United States Government in any pre-
ventive measures which it might be thought best to adopt, by
orders issued to the naval vessels of the respective governments
in that region.* Mr. Phelps also reported that the Russian
ambassador concurred, so far as his personal opinion was con-
cerned, in the propriety of the proposed measures, and had
promised immediately to communicate with his government in
regard to them.
On the 2d of March 1888 Mr. Bayard, in response to an
inquiry as to the manner in which it was proposed to carry
out the regulations for the protection of the seals, and as to
>S. Ex. Doc. 106, 50 Coiijr. 2 seas. 88.
*Cf. Fur Seal Arbitration, V. 610.
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 781
whether legislation by Congress would be necessary for that
purpose, stated that whether legislation would be required
would depend much upon the character of the regulations, but
that it was probable legislation would be needed. The man-
ner of protecting the seals would, he said, also depend upon
the kind of arrangement which might be concluded. As the
matter appeared to the Government of the United States, the
commerce carried on in and about Behring Sea was so limited
in variety and extent that the effort to protect the seals need
not be complicated by considerations which were of great
importance in highways of commerce, and which rendered the
interference by the ofiBcers of one government with the mer-
chant vessels of another on the high seas inadmissible. In
this relation Mr. Bayard referred to the treaty between the
United States and Great Britain concluded April 7, 1862, for
the suppression of the slave trade by the joint policing of cer-
tain seas by the naval vessels of the contracting parties; but
in the present case he did not deem it necessary that the per-
formance of police duty should be by the naval vessels of the
contracting parties. As to persons charged with violating
the propo8e<l regulations, provision might, he said, be made
for handing them over for trial to the courts of tlieir own coun-
try. For such procedure he found a precedent in the treaty
signed at The Hague on May 6, 1882, for the regulation of the
police of the North Sea fisheries.*
During the month of April Mr. Henry White,
^^^'^^^^^ ^' secretary of the legation of the United States,
acting as charg6 d'aff'aires in the temporary
absence of Mr. Phelps, held several interviews at the foreign
office with Lord Salisbury and M. De Staal, the Russian am-
bassador. The latter expressed the wish of his government
for the extension of any regulations which might be agreed
upon for Behring Sea to the Sea of Okhotsk, or at least to that
portion of it in which Kobbeu Island is situated. The United
States assented to«this proposal. M. De Staal also urged that
measures be taken to prohibit the inipoitation by merchant
vessels into the seal-protec^ted area, for sale therein, of alcoholic
drinks, firearms, gunpowder, and dynamite. In regard to the
latter proposal Mr. White rej)orted that Lord Salisbury ex-
pressed no opinion, but that, with a view to meet the Eussian
Government's wishes respecting the waters surrounding Rob-
1 S. Ex. Doc. 106, 50 Cong. 2 sess. 97.
Digitized by VjOOQ IC
782 INTERNATIONAL ARBITRATIONS.
ben Islaud, his lordship suggested that, besides the whole of
Behring Sea, those portions of the Sea of Okhotsk and of the
Pacitiic Ocean that lie north of the forty-seventh degree of north
latitude should be included in the proposed arrangement. His
lordship further intimated that the period proposed by the
United States for a close time (April 15 to November 1) might
interfere with trade longer than was absolutely necessary for
the protection of the seals, and suggested October 1 as the
termination of the period of seal protection. These subjects
were discussed at an interview of the 16tb of April, and Mr.
White, in concluding his report of the conversation, stated that
Lord Salisbury had promised to have a draft of a convention
prepared for submission to the Russian ambassador and him-
self.* Mr. Bayard deemed it advisable to take the 15th of
October instead of October 1 as the end of the close season,
though he considered the Ist of November safer than either.
The restriction of the sale of iirearms and liquor he thought
it preferable to regulate by a separate convention.*
On the 20th of June 1888 Mr. White reported
Snspensioiiof Nego- ^^^^ ^^ ^^^ ^^^^ ^^ ^^^ preceding month he
had called with the Russian ambassador at the
foreign office for the purpose of discussing with Lord Salis-
bury the terms of the proposed convention, and that his lord-
ship had just received a communication from the Canadian
Government stating that a memorandum on the subject would
shortly be forwarded to London, and expressing the hope that,
pending the arrival of that document, no further steps would
be taken in the matter by Her Majesty's goverment. Mr.
White said that he had since inquired several times whether
the communication had been received, but it had not yet come
to hand, and Lord Salisbury felt bound to await the Canadian
memorandum before proceeding to draft the convention.
. The next report from the legation on the
"^Ph^i! subject was made by Mr. Phelps. It bears
date the 12th of September. In this report
Mr. Phelps stated that he had had an interview with Lord
Salisbury on the 13th of August, one of the objects of which
was to urge the completion of the convention between the
United States, Great Britain, and Russia for the protection of
» S. Ex. Doc. 106, 50 Cong. 2 .sess. 100.
»Id. 100-101.
Digitized by LjOOQIC
FUR. SEAL ARBITRATION. 783
the fur seals. This convention had, said Mr. Phelps, "been
virtually agreed on verbally, except in its details/' but the
consideration of it had been suspended at the request of the
Canadian Government; and he expressed the opinion that the
British Government would not execute it without the concur-
rence of Canada, and that the concurrence of Canada could
not reasonably be expected. Mr. Phelps continued:
"Under these circumstances the Government of the United
States must, in my opinion, either submit to have these valua-
ble fisheries destroyed or must take meiisures to prevent their
destruction by capturing the vessels employed in it. Between
these alternatives it does not appear to me there should be the
slightest hesitation. Much learning has been expended upon
the discussion of the abstract question of the right of mare
clatMum. I do not conceive it to be applicable to the present
case. Here is a valuable fishery, and a large and, if properly
managed, permanent industry, the property of the nations on
whose shores it is carried on. It is proposed by the colony of
a foreign nation, in defiance of the joint remonstrance of all the
countries interested, to destroy this business by the indiscrimi-
nate slaughter and extermination of the animals in question, in
the open neighboring sea, during the i>eriod of gestation, when
the common dictates of humanity ought to protect them, were
there no interest at all involved. And it is suggested that we
are prevented fix)m defending ourselves against such depreda-
tions because the sea at a certain distance from the coast is free.
The same line of argument would take under its protection
piracy and the slave trade, when prosecuted in the open sea,
or would justify one nation in destroying the commerce of
another by placing dangerous obstructions and derelicts in the
open sea near its coasts. There are many things that cannot
be allowed to be done on the open sea with impunity, and
against which every sea is mare clausum. And the right of
self defense as to person and property prevails there as fully
as elsewhere. If the fish upon the Canadian coasts could be
destroyed by scattering poison in the open sea adjacent, with
some small profit to those engaged in it, would Canada, upon
the just principles of international law, be held defenseless in
such a caseY Yet that process would be no more destructive,
inhuman, and wanton than this. If precedents are want-
ing for a defense so necessary and so proper it is because
precedents for such a course of conduct are likewise unknown.
The best international law has arisen from precedents that
have been established when the just occasion for them arose,
undeterred by the discussion of abstract and ina<lequate
rules." ^
» Case of the United States, Appendix 1, 181-183, Fur Seal Arbitration, II.
Digitized by LjOOQIC
784 INTERNATIONAL ARBITRATIONS.
Tt thus came about that tbe negotiations,
drcnmBtanoM under ^iiich seemed at one time practically coudud-
which Negotia- . ^^^ ^^^^ adoption of cooperative measures
tums were Bus- 7 i- &
pended. ^^^ *'^® protection of the fur seals in BehriDg
Sea, were suspended. There are certain tiicts
that may not be destitute of significance in this relation. On
the 15th of February 1888 a treaty was signed at Washington
by Mr. Bayard, William L. Putnam, and James B. Abgell, on
the part of the United States, and by Joseph Chamberlain, Sir
Charles Tupper, and Sir L. S. Sackville West, on the part of
Great Britain, for the adjustment and regulation of the various
questions long pending between the two countries in relation
to the fisheries adjacent to the eastern coasts of British ^orth
America. This treaty was duly submitted to the Senate, and
on the 7th of May the Committee on Foreign Kelations, to
whom it was referred, reported it adversely.^ It was on the
20th of April that Mr. White reported Lord Salisbury's promise
to have a draft of a convention prepared to carry into effect
the proposals of the United States for the protection of tlie
fur seals. On the 16th of May Lord Salisbury, as Mr. White
reported, ''had just received a communication from the Cana-
dian government," asking that the matter be x>ostponed.
In 1888 no seizures were made in Behring
Renewal ofjemxres g^^^ ^^^ ^^^ diplomatic discussion rested till
^ the 24th of August 1889, when Mr. Edwardes,
British charg6 d'affaires ad interim^ addressed a note to Mr.
Blaine, who had then become Secretary of State, in relation
to repeated rumors that had lately reached Her Majesty*
government, to the effect that United States cruisers had
*' stopped, searched, and even seized British vessels in Behring
Sea outside of the three-mile limit from the nearest land."
Mr. Edwardes said he was instructed by the Marquis of
Salisbury to inquire whether the United States Government
waiS in possession of similar information, and further to ask
that stringent instructions might be sent out, at the earliest
moment, with a view to prevent the possibility of such occur-
rences taking place. Lord Salisbury had, Mr. Edwardes
stated, also desired him to say that Sir Julian Pauncefote,
Her Majesty's minister, would be prepared on his return to
Washington in the autumn to discuss the whole question, and
> Tbe report of the committee wa« published, as was also a minohtr
report.
Digitized by LjOOQIC
PUR SEAL ARBITRATION. 785
that a settlement could not but be hindered by any measures
of force which might be resorted to by the United States.
Mr. Blaine immediately replied *' that the same rumors, prob-
ably based on truth," had reached the Government of the
United States, but that there had been no official communi-
cation received on the subject. It was, he said, the earnest
desire of the President to have such an adjustment as should
remove all possible ground of misunderstanding concerning
existing troubles in Behring Sea, and the President believed
that the responsibility for delay in the adjustment could not
I>roperly be charged tt) the United States. Mr. Blaine said it
gave him pleasure to assure Mr. Edwardes that the Govern-
ment of the United States would endeavor to be prepared for
the discussion with Sir Julian Pauncefote, and that, in the
opinion of the President, the points at issue between the two
governments were capable of prompt adjustment on a basis
entirely honorable to both.
Subsequently to this correspondence Mr. Edwardes left at
the Department of State two communications from the Mar-
quis of Salisbury, both dated the 2d of October 1889. In one of
them his lordship, referring to the previous negotiations for
a convention, observed that they "were suspended for a time
in consequence of objections raised by the Dominion of Can-
ada and of doubts thrown on the physical data on which any
restrictive legislation must have been based," but that Her
Majesty's government were ''fully sensible of the importance
of this question and of the great value which will attach to an
international agreement in respect to it," and that Her Maj-
esty's representative would " be furnished with the requisite
instructions in case the Secretary of State should be willing
to enter upon the discussion." In the other communication
Lord Salisbury protested against the fresh seizures on the
ground that they were wholly unjustified by international
law.
These communications were answered by
Portions of Mr. Mr. Blaine on the 22d of January 1890. In
^' this reply Mr. Blaine took the ground that
^^the Canadian vessels arrested and detained in the Behring
Sea were engaged in a pursuit that was in itself contra bono8
moresy a pursuit which of necessity involves a serious and
permanent injury to the rights of the Government and people
of the United States." To establish this ground, it was not
5627 50
Digitized by LjOOQIC
786 INTERNATIONAL ARBITRATIONS.
necessary, lie said, ''to argae the question of the extent and
natare of the sovereignty of this Government over the watei-H
of the Behring Sea," or "to define the jMJwers and privileges
ceded by His Imperial Majesty the Emperor of Bnssia in the
treaty by which the Alaskan territory was transferred to the
United States.'' It could not be unknown to Her Majesty's
government that one of the most valuable sources of revenue
from the Alaskan possessions was the fur -seal fisheries of
Behring Sea. '^ Those fisheries had," said Mr. Blaine, ''been
exclusively controlled by the Government of Russia, without
interference or without question, from their original discovery
until the cession of Alaska to the United States in 1867," and in
like manner by the Government of the United States from 1867
to 1886, when "certain Canadian vessels asserted their right
to enter, and by their ruthless course to destroy the fisheries"
and with them "the resulting industries" which were so valu-
able. The Government of the United States at once proceeded
to check this movement, and it was, Mr. Blaine declared, a
cause of "unfeigned surprise" that Her Majesty's government
should immediately interfere to defend, and encourage by de-
feuding, the course of the Canadians "in disturbing an indus-
try which had been carefully developed for more than ninety
years under the flags of Eussia and the United States." So
great had befeu the injury from this irregular and destructive
slaughter io the open waters of Behring Sea, that the Govern-
ment of the United States had been compelled to reduce the
number of seals allowed to be taken on the islands from 100,000
to 60,000 annually. It was doubtful, said Mr. Blaine, whether
Her Majesty's government would abide by the three-mile rule,
on which it was sought to defend the Canadian sealers, if an
attempt were made to interfere with the pearl fisheries of
Ceylon, which extended more than twenty miles from the shore
line, which were enjoyed by England without molestation,
and which Her Majesty's government felt authorized to sell
the right to engage in, from year to year, to the highest bid-
der; nor was it credible that destructive modes of fishing on
the Grand Banks of Newfoundland, by the explosion of dyna-
mite or giant powder, would be justified or even permitted by
Great Britain on the plea that the vicious act^ were committed
more than three miles from shore. Why were not the two cases
parallel? The Canadian vessels were engaged in the taking
of fiir seals in a manner that insured the extermination of the
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 787
species, in order that " temporary and immoral gain ^ might
be acquired by a few persons. "The law of the sea,'' con-
tinued Mr. Blaine, "is not lawlessness.'' One step beyond
the protection of acts which were immoral in themselves and
which inevitably tended to results against the interests and
welfare of mankind, and piracy would find its justification.
The forcible resistance to which the United States was con-
strained in Behring Sea was, declared Mr. Blaine, in the
President's judgment, "demanded not only by the necessity
of defending the traditional and long- established rights of
the United States, but also the rights of good government
and of good morals the world over." The President was
persuaded that "all friendly nations" would "concede to
the United States the same rights and privileges on the lands
and in the waters of Alaska which the same friendly nations
always conceded to the Empire of Russia." *
During the months of March and April 1890
NegotiatioiiB at several conferences were held at Washington
Washington. between Mr. Blaine, M. De Struve, the Russian
minister; Sir Julian Pauncefote, and Mr. Charles H. Tupper,
minister of marine and fisheries of Canada, on the subject of a
joint arrangement, but no agreement was reached. On the 1st
of March Mr. Blaine communicated to Sir Julian Pauncefote
"a large mass of evidence" to show that "the killing of seals
in the open sea tends certainly and rapidly to the extermina-
. tion of the species." On the 9th of March Sir Julian com-
municated to Mr. Blaine in reply a memorandum prepared by
Mr. Tupper, to which was appended a note by Mr. George M.
Dawson, assistant director of the geological survey of Canada.
In this memorandum it was maintained that, while the indis-
criminate slaughter of seals on the rookeries was most injuri-
ous to seal life, no instance could be found where a rookery
had ever been destroyed, depleted, or even injured by the
killing of seals at sea only; and it wa^ also maintained that,
though Mr. Blaine had contended that the seals in the waters
of Behring Sea were undisturbed until 1886, "extraordinary
slaughter" occurred there prior to 1870, and that pelagic seal-
ing had since been carried on without interference till the
seizures were made in 1886. In support of this asseveration
various reports of agents of the United States from 1870 to 1886
1 Mr. Blaine to Sir Julian Pauncefote, January 22, 1890, For. Bel. 1890,
366-370.
Digitized by LjOOQIC
788 INTERNATIONA.L ARBITRATIONS.
were cited. The memorandum contended that little danger
was to be apprehended from pelagic sealing.^
On the 29th of April 1890 Sir Julian Taunce-
sir Julian Paunoe- fote, in response to an invitation from Mr.
fottfi Propoeal of Blaine to submit a counter proposal to that
toerto™and'aMo^ made by the United States two years previ-
dns Vivendi. ously, presented to the latter a draft of a con-
vention between Great Britain, Russia, and the
United States, in relation to the fur-seal fishery in Behring Sea,
the Sea of Okhotsk, and the adjacent waters. In view of the
fact that there was a difference of opinion as to the measures
required for the protection of the fur seals, the draft pro-
posed the appointment of a mixed commission of experts, who
should, within two years from the date of the convention,
investigate and report upon the questions: (1) Whether regu-
lations properly enforced on the various breeding islands and
the territorial waters surrounding them were sufficient for the
preservation of the fur-^eal species? (2) If not, how far from
the islands was it necessary that such regulations should be
enforced! (3) What such regulations should in either case
provide? (4) If a close season was required on the breeding
islands and territorial waters, what months should it embrace?
(5) If a close season was necessary outside of the breeding
islands as well, what extent of waters and what period or
periods should it cover? In casethecontracting parties should,
after receiving the commissioners' report or reports, be unable
to agree on regulations, it was proposed to refer the questions
in difl'erence to the arbitration of an impartial government. It
was further proposed that, pending the report of the commis^
sion, and for six months after its date, the contracting parties
should put in force certain provisional regulations. The sub-
stance of these provisional regulations was that a line, to be
called the "Seal fishery line," should be drawn from Point
Anival, in the Sea of Okhotsk, to the point of intersection of
the fiftieth parallel of north latitude with the one hundred and
sixtieth meridian of longitude east from Greenwich, thence
eastward along the fiftieth i)arallel to its point of intersection
with the one hundred and sixtieth meridian of longitude west
from Greenwich ; that the citizens and subjects of the contract-
ing parties should be prohibited from taking seals by land or
sea north of that line from the 1st of May to the 30th of June,
»For. Kel. 1890,382-407.
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 789
and from the 1st of October to the 30th of December^ that,
during the intervening period, in order to prevent the raiding
of the breeding islands, vessels engaged in the far-seal fishery
should be prohibited from approaching such islands within a
radins of ten miles; that vessels found engaged in the fur-seal
fishery contrary to the prohibitions of the convention should be
liable to confiscation, and their masters and crews to fine and
imprisonment; that every offending vessel or person might be
seized and detained by the naval or other duly commissioned
officers of any of the high contracting parties, but that they
should be handed over as soon as x)racticable to the authorities
of the nation to which they respectively belonged, for trial and
punishment.*
On the 11th of May Sir Julian Pauncefote,
p^^^omO.^* after an interview with Mr. Blaine, reported
to his government that the latter would within
a week send a communication in which he would explain why
the United States could not accept the draft in its original
form, though he thought a basis of arrangement was offered
by the i)roposal. On the 22d of May, however, a statement
appeared in the newspapers to the effect that it had been
decided at a meeting of the Cabinet to reject the proposal, and
that instructions had been issued to the I'nited States revenue
cutter Bear to arrest pelagic sealers in Behring Sea. Sir
Julian Pauncefote personally remonstrated against the publi-
cation of the statement in the press before any response had
been made to the pending proposaPand against the issuance
of such instructions while negotiations were in progress. Mr.
Blaine did not deny the truth of the statement, but replied
that the press could not be controlled ; that an answer to the
proposal had been delayed in order to return a joint reply
with Russia, and that the draft convention was quite inade-
quate to the necessities of the case. He especially protested
against that part of the draft which contemplated the pre-
scription of regulations on land, and explained that his former
expression of opinion that the draft ofi'ered a basis of negotia-
tion by saying that he then had in mind the question of arbi-
tration.* On the following day Sir Julian addressed to Mr.
Blaine a formal note, in which he referred to the statement in
the newspapers, and said that, as it had been confirmed by
1 For Rel. 1890, 410-417,
'Case of Great Britain, Fnr Seal Arbitration, V. 515-516.
Digitized by LjOOQIC
790 INTEENAtlONAL ARBITRATIONS.
Mr. Blaine on the preceding day, be was instructed by Lord
Salisbury to state that a formal protest by Her Majesty's gov-
ernment against any such interference with British vessels
would be forwarded without delay. On the 29th of May Mr.
Blaine replied that he was instructed by the President "to pro-
test against the course of tlie British Government in author-
izing, encouraging, and protecting vessels which are not only
interfering with American rights in the Behring Sea, but
which are doing violence as well to the rights of the civilized
world." Mr. Blaine declared that prior to April 23, 1888, Lord
Salisbury had "in every form of speech assented to the neces-
sity of a close season for the protection of the seals," and that
the "change of policy made by Her Majesty's government"
in offering instead a mixed commission of experts to determine
the questions at issue, and in the mean time a limited zone of
protection around the islands, was, in the President's belief,
the cause of all the differences that had followed. Neverthe-
less, he said that he was instructed by the President to state
that, while the proposal of April 29 for a convention could not
be accepted, the United States would continue negotiations in
the hope of reaching an agreement that might conduce to a
good understanding and leave no cause for future dispute, and
to propose that, as it was too late to conclude the negotiation
in time to apply its results to the current season. Her Majesty's
government agree not to permit British vessels to enter Beh-
ring Sea during that season, in order that time might be
secured for negotiation without the risk of its disturbance by
untoward events.^
On the 2d of June Mr. Blaine again wrotb tc»
Formal Protest Sir Julian Pauncefote, stating that he had haa
f^*^ ' a prolonged interview with the President in
relation to the fur-seal question, and that as
an arbitration could not be concluded in time for the pending
season the President most anxiously desired to know "whether
Lord Salisbury, in order to promote a friendly solution of the
question, will make for a single season the regulation which in
1888 he offered to make permanent." * Replying to this inquiry,
Sir Julian Pauncefote, in a note of the following day, said he
had no doubt that the words used by Mr. Blaine had reference
"to the proposal of the United States that British sealing ves-
»For. I^'el. 1890, 424-429.
''Id. 429.
Digitized by LjOOQIC
PUR SEAL AEBITRATIOX. 791
sels should be entirely excluded from the Behring Sea during
the seal fishery season." He should not, he said, attempt to
discuss whether what took place " in the course of the abortive
negotiations of 1888" amounted to an offer on the part of Lord
Salisbury " toraake such a regulation permanent; " but it would
suffice for his present purpose to state that further examina-
tion of the question had satisfied his lordship 'Hhat such' an
extreme measure as that proposed in 1888 goes far beyond the
requirements of the case." Her Majesty's government were,
said Sir Julian Pauncefote, willing to adopt all measures which
should be satisfactorily proved to be necessary for the preserva-
tion of the fur-seal species, and to enforce such measures on
British subjects by proper legislation; but they were not pre-
pared to agree to such a regulation as that which had been
suggested in 1888, for the pending season, since, apart from
other considerations, there would be no legal power to enforce
its observance on British subjects and British vessels. To this
note Mr. Blaine replied on the 4th of June, maintaining that
the most extreme measure proposed in 1888 came from Lord
Salisbury himself, and that a larger measure of protection
than that which had lately been offered by Great Britain was
requisite. He declared that the President sincerely regretted
^Hhat his considerate and most friendly proposal for adjust-
ment of all troubles connected with the Behring Sea should
be so promptly rejected."* On the 6th of June Sir Julian
Pauncefote wrote that, pending further instructions, he would
abstain from pursuing the discussion on the various points
with which Mr. Blaine's last note dwelt, and would only
observe that, as regarded the sufficiency or insufficiency of the
ten-mile radius which he had proposed on behalf of his govern-
ment, no opportunity was afforded him of discussing the ques-
tion <' before the proposals of Her Majesty's government were
summarily rejected."*
On the 9th of June Sir Julian Pauncefote communicated
to Mr. Blaine an extract from a telegram which he had just
received from the Marquis of Salisbury, in which the latter
expressed regret that the President should think him wanting
in conciliation, but observed that he could not refrain from
thinking that the President did not appreciate the difficulty
arising from the law of England. It was, said Lord Salisbury,
' For. Rel. 1890, 430-432.
nd. 432.
Digitized by LjOOQIC
792 INTERNATIONAL ARBITRATIONS.
entirely beyond the power of Her Majesty's govemmeDt to
exclude British or Canadian ships from any portion of the high
seas, "even for an honr, without legislative sanction."* Mr.
Blaine then suggested that Lord Salisbury might '^bypablic
proclamation simply request that vessels sailing under the
British flag should abstain from entering the Behring Sea for
the present season.''* Sir Julian Pauncefote cabled this sng
gestion to Lord Salisbury, but again pressed for an aKSUiance
that British vessels would not be interfered with in Behring
Sea while negotiations continued; and on the 14th of Jane,
having failed up to that time to obtain such an assurance, and
having learned from statements in the public press and otber
sources that the revenue cutters Bush and Cortcin were about
to be dispatched to Behring Sea, he communicated to Mr.
Blaine the formal protest of his government against the renewal
by the United States of "acts of interference with British ves-
sels navigating outside the territorial waters of the United
States." The protest concluded with the declaration ** that Her
Britannic Majesty's government must hold the Govenunent of
the United States responsible for the consequences that may
ensue from acts which are contrary to the established principles
of international law." ^
On the 27th of June Sir Julian Pauncefote
Conditions Pro- communicated to Mr. Blaine the formal reply
p«^by Lord Sal- ^^ ^^^ Marquis of Salisbury to the suggestion
that he should issue a proclamation requesting
British vessels to abstain from entering Behring Sea, Lord
Salisbury's answer was that such action presented constitu-
tional difficulties which would preclude Her Majesty's govern-
ment from acceding to it, except as part of a general scheme
for the settlement of the Behring Sea controversy, and on cer
tain conditions which would justify the assumption by Her
Majesty's government of the grave responsibility involved in
the proposal. These conditions were: (1) That the two gov-
ernments agree forthwith to refer to arbitration the question
of the illegality of the seizures of the British vessels engaged
in taking seals in Behring Sea outside of territorial waters
during the years 188(>, 1887, and 1888; (2) that, pendiug the
award all interference with British sealing vessels shonld ab-
> For. Rel. 1890, 433.
8 Mr. Blaine to Sir Julian Pauncefote, June 11, 1890, For. Rel. 1890.433.
3For. Rel. 1890, 434-436.
Digitized by LjOOQIC
PUR PEAL ARBITRATION. 793
solutely cease; (3) tliat the United States, if the award should
be adverse to them on the question of legal right, should com-
pensate British subjects for the losses which they might
have sustained by reason of their compliance with the British
proclamation.^
While these negotiations were going on the
Lord Saliilmry'B Ar- discussion of questions of legal right was also
ti3!f Sht*" proceeding. On the 5th of June 1890 Sir
Julian Pauncefot^ left at the Department of
State a copy of an instruction from the Marquis of Salisbury
of May 22, 1890, in answer to Mr. Blaine's note of the 22d of
the precisding January. With regard to the argument advanced
in that note, Lord Salisbury said it was obvious that two ques-
tions were involved: First, whether the pursuit and killing of
fur seals in certain parts of the open sea were, from the point
of view of international morality, an offense contra honos mores,
and, secondly, whether, if such were the case, this fact justified
the seizure on the high seas and subsequent confiscation in
time of peace of the private vessels of a friendly nation. Ke-
ferring to a special message of* President Tyler to Congress of
February 27, 1843, Lord Salisbury said it was an axiom of inter-
national maritime law that such action was admissible only in
the case of piracy or in pursuance of special international agree-
ment. The pursuit of seals in the open sea had never been
considered as piracy by any civilized state. Even in the case
of the slave trade, a practice which the civilized world had
agreed to look upon with abhorrence, the right of arresting: the
vessels of another country could be exercised only by special
international agreement, and no one government had been
allowed that general control of morals in this respect which
Mr. Blaine claimed on behalf of the United States in regard to
seal hunting. But ller Majesty's government, said Lord Salis-
bury, must also (]uestion whether the killing of seals could of
itself be regarded as contra honos mores^ unless and until for
special reasons it had been agreed by international arrange-
ment to forbid it. Fur seals were indisputably animals ferce
naturccj and these had universally been regarded by jurists as
res nidlius until they were caught, and no person, therefore,
could have property in them until he had actually reduced
them to possession by capture. As to the argument that the
fur seal fisheries had been exclusively controlled by Russia and
»For. Kel. ISiK), 436.
Digitized by LjOOQIC
794 mTERNATtONAL ARBITRATIONS.
the United States saccessively down to 1886, Lord Salisbury
quoted from the correspondence in relation to the ukase of
1821, and from certain subsequent correspondence, to show
that Russia had enjoyed no monoi>oly of the fisheries. He also
denied that from 1867 to 1886 the enjoyment of the scaI fisheries
by the United States was uninterrupted, and he quoted the
reports of various ofiicials of the United States from 1870 to
1884 in support of this denial. As to the argument that the
taking of seals in the open sea rapidly led to their extinction,
he declared that the statement would admit of reply, and that
abundant evidence could be adduced on the other side, but
that, as it had been proposed that this question should be ex-
amined by a commission of experts to be appointed by the two
governments, it was not necessary to deal with it on the pres-
ent occasion. The negotiations then in progress in Washington
proveil, he said, the readiness of Her Majesty's government to
consider whether any special international agreement was nec-
essary for the protection of the fur-seal industry, and in its
absence they were unable to admit that the case put forward
on behalf of the United States afforded any sufficient justifica-
tion for the forcible action already taken against peat^eable
subjects of Her Britannic Majesty engaged in lawful operations
on the high seas.^
To this communication Mr. Blaine replied
Mr. Blaia6'« Argu- ^^ the 30th of June in a note to Sir Julian
ment astoBiiMian pj^^n^efote. This note, which is of consider-
Bights in Behnng ^
gg^ able length, is almost wholly devoted to an ar-
gument to show thcat the jurisdictional claim
of Russia put forth in the ukase of 1821 was acquiesced in by
Great Britain and the United States north of the sixtieth par-
allel of north latitude. Mr. Blaine contended that the protest
of Mr. Adams was not against the Russian claim itself, but
against its extension southward to the fifty-first degree of
north latitude; that the term "Continent of America," as used
by Mr. Adams, was employed not in the geographical sense,
but to distinguish the territory of "America "from the terri-
tory of the "Russian possessions;" that the phrase "North-
west coast" was used in two senses — one including the north-
west coast of the Russian possessions, and the other merely
the coast of America whose northern limit was the sixtieth
parallel of north latitude, and that it was used by Mr. Adams,
» For. Rel. 1890, 419-424.
Digitized by LjOOQIC
J'UR SEAL ARBITRATION. 795
as well as by British statesmen at the time, in the latter sense.
Mr. Blaine also contended that in the treaties concluded by
the United States and Great Britain with Eussia in 1824 and
1825 there was no '< attempt at regulating or controlling, or
even asserting an interest in, the Eussian possessions and the
Behring Sea, which lie far to the north and west of the terri-
tory which formed the basis of the contention." He argued
that the terms " Great Ocean," " Pacific Ocean," and " South
Sea" did not include the Behring Sea. The treaties in question
were, be contended, a practical renunciation both on the part of
England and the United States of any rights in tiie waters of
Behring Sea during the period of Eussia's sovereignty. In
regard to the waters of that sea, he declared that the ukase of
1821 stood unmodified, and that both the United States and
Great Britain recognized, respected, and obeyed it. Whatever
duty Great Britain owed to Alaska as a Eussian province was
not, he declared, changed by the mere fact of the transfer of
sovereignty to the United States; and in conclusion he reas-
serted that no destructive intrusion by sealers into Behring
Sea began until 1886.^
The answer of Lord Salisbury to this note
Lord Baiiibniys An- Yy^^j,^ j^j.^ ^j^^ 2d of August. In this answer
"Zw^^o^^ "*' Lord Salisbury maintained that the protest of
Mr. Adams covered the whole of the extraor-
dinary jurisdictional claim made in the ukase of 1821, and
that in all the correspondence there was no reference to any
distinctive name for Behring Sea, or any intimation that it
could be considered otherwise than as forming an integral part
of the Pacific Ocean.* When Mr. Adams declared that the
United States '^ could admit no part" of the claims set forth
in the ukase, his clear object was to deny that the Eussian
settlements gave Eussia any right to exclude the navigation
or fishery of other nations over any part of the sea on the
coast of America; and such, also, was the object of the treaties
of 1824 and 1825. Lord Salisbury also quoted extracts irom
the instructions given by Mr. George Canning to Mr. Strat-
ford Canning, when the latter was named as minister plenipo-
tentiary to negotiate the treaty of 1825, by which it appeared,
first, that England refused to admit any part of the claim
asserted in the ukase of 1821 to an exclusive jurisdiction of one
hundred Italian miles from the coast from Behring Straits to
' For. Rel. 1890, 437-448.
Digitized by LjOOQIC
796 INTERNATIONAL ARBITRATIONS.
the fifty first parallel of north latitude; second, that the con-
vention of 1825 was regarded on both sides as a renanciation
by Eussia of that claim in its entirety, and third, that, though
Behring Straits was known and specifically provided for,
Behring Sea was not known by that name, but was regarded
as part of the Pacific Ocean. Lord Salisbury further con-
tended that the public right to fish, catch seals, or pursue any
other lawful occupation on the high seas could not be held to
be abandoned by a nation from the mere fact that for a certain
number of years it had not suited the subjects of that nation to
exercise it; and in conclusion he proposed that if the Govern-
ment of the United States, after an examination of the evidence
and argument which he had produced, should still differ from
Her Majesty's government as to the legality of the recent cap-
tures in Behring Sea, the question, together with the issues that
depended upon it, should be referred to impartial arbitration.*
To this communication Mr. Blaine replied
Mr. Blaine's Beply; ^n the 17th of December; and at the outset
Ooe* •" QnMti ^ ^® obscrvcd that legal and diplomatic ques-
for Arbitration. tions, apparently complicated, were often
found, after prolonged discussion, to depend
uxK)n the settlement of a single point. Such was, he said, the
position of the United States and Great Britain. Great Britain
contended that the phrase <• Pacific Ocean," as used in the
treaties of 1824 and 1825, included Behring Sea; the United
States contended that it did not. If Great Britain could
maintain her position on this point, tlie Government of the
United States had, Mr. Blaine declared, " no well-grounded
complaint against her." If, on the other hand, the United
States could prove that Behring Sea at the date of the treaties
was understood by the three signatory powers to be a separate
body of water, and was not included in the phrase " Pacific
Ocean," then the American case against (ireat Britain was
"complete and undeniable." Mr. Blaine then renewed and
amplified the arguments which he had previously advanced
to show that the term " Pacific Ocean " was not intended to
include Behring Sea.*
» For. Rel. 1890, 456-4a5.
^ lie also referred to an act of the British Parliament, parsed after the
traiiRportatioD of Napoleon to the island of St. Helena, by which power
waa a^siiDoied to exclude ships of any nationality not only from landing on
the island, bnt from hovering within eijj[ht Icagnes of its coa«t, and to the
case of the pearl fisheries in the Indian Ocean, under the control of the
British Government.
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 797
In answer to the offer of Lord Salisbury to arbitrate, Mr.
Blaine proposed five questions on which, in the opinion of the
President, a substantial arbitration might be had. The first
four related to the jurisdictional rights of Eussia and their
transfer to the United States. The fifth related to the rights of
the United States as to the fur-seal fishery in the waters of
Behring Sea outside of the ordinary territorial limits, whether
such rights grew out of the cession by Russia, or "of the owner-
ship of the breeding islands and the liabits of the seals in
resorting thither and rearing their young thereon and going out
from the islands for food, or out of any other fact or incident
connected with the relation of those seal fisheries to the terri-
torial possessions of the United States." If the determination of
the foregoing questions should leave the subject in such a posi-
tion that the concurrence of Great Britain was necessary for the
protection of the fur seal, it was further proposed that the tri-
bunal of arbitration should determine what measures were nec-
essary for that purpose. In conclusion, Mr. Blaine declared that
the repeated assertions that the United States demanded that
the Behring Sea be pronounced mareclausumj were without foun-
dation. " The government," he said, " has never claimed it and
never desired it. It expressly disavows it." He further stated
that the views of the President were well expressed by Mr.
Phelps in his dispatch of September 12, 1888, and from this dis-
patch he then cited the passage which has already been quoted.
On the 21st of February 1891 Lord Salis-
Agreement on a y^utj replied to this note, controverting the
argument advanced in it as to the meaning of
the treaties of 1824 and 1825, and proposing certain modifica-
tions of the questions to be submitted to arbitration.^
^For. Rel. 1891, 542. In January 1891 a motion was made before the
Supreme Court of the United States for leave to flic an application for a
writ of prohibition to the district court of the United States for the district
of Alaska, to restrain the enforcement of the sentence of condemnation and
forfeiture entered on September 19, 1887, in the case of the JF, P, Sayward^
one of the British Columbian sealers, on the ground that the court wm
without jurisdiction in the premises. Leave having been grunted, the
application was duly filed. The petitioner for the writ was one Cooper,
the owner of the Sayward, but with his petition a suggestion was pre-
sented by Sir John Thompson, attorney-general of Canada, with the knowl-
edge and approval of the imperial government, requesting the aid of the
court for the claimant, a British subject. The Ciise was argued on Novem-
ber 9 and 10, 1891, and was decided February 29, 1892, the day on which the
treaty of arbitration was signed. The application wiis denied on technical
grounds, relating to the law and practice governing the issuance of writs
of prohibition. {In re Cooper, 143 U. S. 472.)
Digitized by LjOOQIC
798 INTERNATIONAL ARBITRATIONS.
Mr. Blaine rejoined on the 14th of April.* Meanwhile the two
governments had entered. upon the consideration of ^ modus
Vivendi^ which had been suggested by Mr. Blaine under the
instructions of the President, for the suspension or restriction
of sealing pending the result of the arbitration of the questions
at issue between the two governments. This correspondence
continued till the 15th of June 1891, when a modus vivendiwBS
agreed upon.' By this agreement Great Britain undertook to
prohibit, until the following May, the killing of seals by British
subjects in that part of Behring Sea lying eastward of the
line of demarcation described in the treaty between the United
States and Eussia of 1867, and the United States to prohibit
the like killing of seals by citizens of the United States in the
same part of Behring Sea and on the islands thereof, in excess
of 7,500 to be taken on the islands for the subsistence and care
of the natives. It was further agreed that, in order to facilitate
such inquiries as Her Majesty's government might desire to
make with a view to the presentation of their case before arbi-
trators, suitable persons designated by Great Britain should be
permitted at any time, upon api)lication, to visit and remain on
the seal islands during the pending season for that purpose.^
This agreement was at once proclaimed by the President,
"to the end that the same and every part thereof might be
observed and fulfilled with good faith by the United States of
America and the citizens thereof.-' It was put in force in Great
Britain by an order in council, issued under an act passed on
June 11, 1891, "to enable Her Majesty, by order in council, to
make special provision for X)rohibiting the catching of seals in
Bebring's Sea by Her Majesty's subjects during the period
named in the order."*
In accordance with the provisions of the
Agreemeii ora om- ^^^^^ i^ttje/ieft, Sir Julian Pauncefote, on the
munon of Experts. ^^ « -r •■ . . - ^
21st of June, requests permission for Sir
George Baden-Powell, M. P., and Prof. George M. Dawson,
who had been appointed by the Queen as commissioners for
that purpose, to visit and remain on the Pribilof Islands dur-
ing the current fishery season in order to examine the fur-seal
fishery in Behring Sea. Permission was duly granted, and the
President sent out Prof. Thomas 0. Mendenhall, of the Coast
»For. Rel. 1891, 548.
«For.Rel. 1891, 552-570.
3For. Rel. 1891, 573.
'^Case of the United States, Appendix I. 323, Fur-Seal Arbitration, II.
Digitized by V^OOQ IC
PUE SEAL ARBITRATION. 799
Survey, and Dr. C. Hart Merriam, of the Smithscuian lustitu-
tion, to investigate the same subject on the part of the United
States. This concurrent action on the part of the two govern-
ments led at length to the conclusion by Mr. Blaine and Sir
Julian Pauncefote, on the 18th of December 1891, of an agree-
ment for the appointment of a mixed commission of experts.
By this agreement it was provided that each government
should appoint two commissioners to investigate, conjointly
with the commissioners appointed by the other government, all
the facts having relation to seal life in Behring Sea and the
measures necessary for its proper protection and preservation;
that the four commissioners should, so far as they might be
able to agree, make a joint report to each of the two govern-
ments, and that they should also report, either conjointly or
severally, to each government upon any points on which they
might be unable to agree. It was provided, however, that the
reports should not be made public until they should be sub-
mitted to the arbitrators, or until it should appear that the
contingency of their being used by the arbitrators could not
arise.*
Under this agreement Messrs. Mendenhall and Merriam were
formally appointed as commissioners on the part of the United
States, and Messrs. Baden-Powell and Dawson as commission-
ers on the part of Great Britain.*
Meanwhile negotiations continued for the
^'""of^WtaTtim*^ ^"^^"®^^^ ^^ * treaty of arbitration, which
was finally signed on the 29th of February
1892. By the first article of the treaty it was provided that
the questions which had arisen between the two governments
"concerning the jurisdictional rights of the United States in
the waters of Behring's Sea, and concerning also the preserva-
tion of the fur seal in, or habitually resorting to, the said Sea,
and the rights of the citizens and subjects of either country as
regards the taking of fur seal in, or habitually resorting to, the
said waters," should be submitted to a tribunal of seven arbi-
trators, two to be named by the President of the United States,
two by Her Britannic Majesty, and one each by the President
of France, the King of Italy, and the King of Sweden and
Norway. The arbitrators were required to be "jurists of dis-
tinguished reputation in their respective countries," and, if
1 For. Rel. 1891, 606.
- Id. 608.
Digitized by LjOOQIC
800 INTERNATIONAL ARBITRATIONS.
possible, "acquainted with the English hmguage." They were
to meet at Paris within twenty days after the delivery of the
counter cases of the contracting parties, and to proceed "im-
partially and carefully to examine and decide" the questions
laid before them. It was further provided that all questions
considered by the tribunal, including the final decision, should
be determined by a majority of all the arbitrators. Each party
was to name one person to attend the tribunal as its agent, to
represent it generally in all matters connected with the arbi-
tration.
By Articles III., IV., and V. provision was made for the sub-
mission of Cases, Counter Cases, and Arguments. By Article
III. the "printed Case of each of the two parties, accompanied
by the documents, the official correspondence, and other evi-
dence on which each relies," was to be delivered in duplicate
to each of the arbitrators and to the agent of the other party
within a period not exceeding four months from the date of the
exchange of the ratifications of the treaty. By Article IV.
either party was permitted, within three months after the
delivery on both sides of the printed Case, to present in like
manner "a Counter Case, and additional documents, corre-
siKmdence, and evidence, in reply to the Case, documents, cor-
respondence, and evidence so presented by the other party."
Provision was made, however, for an extension of sixty days
for the filing of the Counter Case and its accompaniments, on
the presentation of a [)roper apx)licati()n for that jmrpose. By
Article V. it was made the duty of the agent of each party,
within one month after the expiration of the time allowed for
the delivery of the Counter Case on both sides, to present a
printed argument "showing the points and referring to the
evidence upon which his government relies." It was also pro-
vided that either party might support its printed argument
before the arbitrators by oral argument of counsel; and the
arbitrators were authorized, if they desired further elucida-
tion with regard to any point, to require a written or printed
statement or argument, or oral argument by counsel, upon it,
the other party being entitled to re[)ly in the same manner.
The questions submitted to arbitration were
QuMtio^ of Right ^j^^„^,^i ^ Articles VI. and VII. By Article
and of Begulauons.
VI. five questions were submitted for specific
judgment. Article VII. referred to the arbitrators the subject
of concurrent regulations, in case their judgment on the
five questions in the i)receding article should be adverse to
Digitized by V^OOQlC
PUR SEAL ARBITRATION. 801
the United States. The text of Articles VI. and VIT. is as
follows:
"Article VI.
"Ill deciding the matter submitted to the Arbitrators, it is
agreed that the following five points shall be submitted to
them, in order that their award shall embrace a distinct deci-
sion upon each of said five points, to wit :
" 1. What exclusive jurisdiction in the sea now known as the
Behring's Sea, and what exclusive rights in the seal fisheries
therein, didEussia assert and exercise prior and up to the time
of the cession of Alaska to the United States I
"2. How far were these claims of jurisdiction as to the seal
fisheries recognizt^d and conceded by Great Britain f
**3. Was the body of water now known as the Behring's Sea
included in the phrase ^ Pacific Ocean,' as used in the Treaty
of 1826 between Great Britain and Kussia; and what rights,
if any, in the Behring's Sea were held and exclusively exercised
by Russia after said Treaty?
"4. Did not all the rights of Enssia as to jurisdiction, and
as to the seal fisheries in Behring's Sea east of the water
boundary, in the Treaty between the United States and Eus-
sia of the 30th March, 1867, pass unimpaired to the United
States under that treaty!
" 5. Has the United States any right, and if so, what right of
protection or property in the fur seals frequenting the islands
of the United States in Behring Sea when such seals are found
outside the ordinary three-mile limit?
"Article YII.
"If the determination of the foregoing questions as to the
exclusive jurisdiction of the United States shall leave the sub-
ject in such position that the concurrence of Great Britain is
necessary to the establishment of Eegulations for the proper
protection and preservation of the fur-seal in, or habitually re-
sorting to, the Behring Sea, the Arbitrators shall then deter-
mine what concurrent Eegulations outside the jurisdictional
limits of the respective Governments are necessary, and over
what waters such Eegulations should extend, and to aid them
in that determination the report of a Joint Commission to be
appointed by the respective Governments shall be laid before
them, with such other evidence as either Government may
submit.
" The High Contracting Parties furthermore agree to coop-
erate in securing the adhesion of other Powers to such regula-
tions."
Article VIII. of the treaty related to dam-
® *^" ages, which had formed a subject of much dif-
ficulty and occasioned not a little delay in the
negotiations. By this article it was provided that the high
5627 51
Digitized by LjOOQIC
802 INTEBNATIONAL ARBITRATIONS.
ooutracting parties, <^ having foaud themselves unable to agree
npon a reference which shall include the question of the liabil-
ity of each for the injuries alleged to have been sustained by
the other, or by its citizens, in connection with the claims pre-
sented and urged by it, either may submit to the arbitrators
any question of fact involved in said claims and ask for a find-
ing thereon, the question of the liability of either Government
upon the facts found to be the subject of further negotiation."
In Article IX. of the treaty the provisions
f ExD rti ^ which were agreed upon on the 18th of the
preceding December, in relation to the ap-
X)ointment of a joint commission of experts, were incorporated.
It has been seen that Article YII. provided that, in determin-
ing what concurrent regulations, if any, were necessary for the
protection of the seals, the report of the joint commission
should be laid before the arbitrators, with such other evidence
as either government might submit.
On February 2, 1892, nearly a month before
DiMUMioa *• to a ^he conclusion of the treaty of arbitration, Mr.
v«di ^^^ ^^' ^^^^"® proposed to Sir Julian Pauncefote the
adoption of a new modus vivendi for the ensu-
ing fishery season. It appears that in the discussion leading
up to the agreement for a joint commission of experts, as
concluded oa the 18th of December 1891, and subsequently
embodied in Article IX. of the treaty of arbitration, it was sug-
gested that the subject of a modt^ vivendi might be considered
by the commissioners. The joint commission held its first meet-
ing, which was in the nature of a preliminary conference, on the
8th of February 1892. At the second preliminary conference,
held on tlie 11th of February, the American commissioners,
Messrs. Mendenhall and Merriam, under instructions from their
government, proposed the discussion of a modus vvvendi. The
British commissioners, Messrs. Baden-Powell and Dawson,
declined to enter into the subject, on the ground that it was
not within their powers, but belonged to the two governments.
When informed of this decision, Mr. Blaine addressed a note
to Sir Julian Pauncefote, expressing his surprise and saying
that an early assembling of the commissioners had been urged
on the ground *' that they could provide a modus vivendi that
would be suftcient, while the arbitration should go on with
plenty of time to consider the various points.'' Sir Julian,
however, replied that the authority of the joint commission
Digitized by LjOOQIC
FUE SEAL ARBITRATION. 803
was limited by the terms of the agreement under which it was
organized; that, while he had certainly urged, as an additional
reason for an early meeting of the joint commission, that its
reports would furnish valuable materials for such discussion,
the commissioners could not properly deal with the question of
a modus vivendi without special authority from their govern-
ments; and that he had communicated to Lord Salisbury the
proposal made by Mr. Blaine on the 2d of February that the
two governments should agree on a modus vivendi^ and was
awaiting his lordship's reply.' When Lord Salisbury's reply
was received, it was found to be to the effect that Her Majesty's
government could not express any opinion on the subject of a
modus Vivendi until they knew what the United States desired
to propose. Mr. Blaine answered that the President desired to
suggest <Hhat the modus should be much the same as last
year in terms, but that it should be better executed." Lord
Salisbury, however, maintained that "so drastic a remedy"
was unnecessary, and suggested as a temporary measure for
the ensuing season the prohibition of all killing at sea within a
zone of not more than thirty nautical miles around the Pribilof
Islands, such prohibition being conditional on the restriction
of the number of seals to be killed for any purpose on the
islands to a maximum of 30,000. To this proposal the Presi-
dent strongly objected. Before the agreement for arbitration
was reached, the prohibition of pelagic sealing was, he said, a
matter of comity; from the moment the agreement was signed,
it became, in his opinion, a matter of obligation; and he de-
clared that, while the United States would abide by the judg-
ment of the tribunal which had been agreed upon, it could not
be expected to suspend pending the arbitration the defense of
the property and jurisdictional rights which it claimed. On
the same ground the President declined to entertain a proposal
that the taking of seals in Behring Sea should continue on con-
dition that the owner of every sealing vessel should give secur-
ity for satisfying any damages which the arbitration might
adjudge. As a result of this correspondence Lord Salisbury
presented another proposition, out of which an agreement
finally grew. Her Majesty's government, he said, concurred
in thinking that when the treaty should have been ratified
there would arise a new state of things, but that until it was
ratified their conduct was governed by the language employed
'For. Rel. 1891,612-613.
Digitized by LjOOQIC
804 INTERNATIONAL ARBITRATIONS.
in the protest presented by Sir Julian Pauucefote to Mr. Blaine
on Juiie 14, 1890. Her Majesty's g^overnment thought that
the prohibition of sealing, if it stood alone, would be unjust
to British sealers, if the decision of the arbitrators should be
adverse to the United States. They were, however, willing,
when the treaty should have been ratified, to agree to an ar-
rangement similar to that of 1891, if the United States would
consent that the arbitrators should, in the event of an adverse
decision, assess the damages which the prohibition of sealing
should have inflicted on British sealers during the pendency
of the arbitration; and, in the event of a decision adverse to
Great Britain, that they should assess the damages which the
limitation of slaughter should during the pendency of the ar-
bitration have inflicted on the United States or its lessees.^
On the 18th of April 1892 a modus vivendi
Hew Xodu Vivendi ^^^g concluded in the form of a convention.
^Dim ^]J^^**^ In its first, second, third, and fourth articles it
embodied the provisions of the modus vivendi
of 1891. By its fifth article it introduced the subject of dam-
ages, which had been postponed by the treaty of arbitration.
This article read as follows:
"Article V.
"If the result of the Arbitration be to affirm the right of
British sealers to take seals in Behring Sea within the li^unds
claimed by the United States, under its purchase from Eussia.,
then compensation shall be made by the United States to Great
Britain (for the use of her subjects) for abstaining from the
exercise of that right during tbe pendency of the Arbitration
upon the basis of such a regulated and limited catch or catches
as in the opinion of the Arbitrators might have been taken
without an undue diminution of the seal-herds; and, on the
other hand, if tbe result of the Arbitration shall be to deny
the right of British sealers to take seals within the said waters,
then compensation shall be made by Great Britain to the
United States (for itself, its citizens and lessees) for this agree-
ment to limit the island catch to seven thousand five hundred
a season, upon the basis of the dift'erence between this number
and such larger catch as in the opinion of the Arbitrators
might have been taken without an undue diminution of the
sesd-herds.
"The amount awarded, if any, in either case shall be such
as under all the circumstances is just and equitable, and shall
be promptly paid."
» For. Rel. 1891, 612-628.
Digitized by LjOOQIC
PUB SEAL ARBITRATION. 805
The treaty of arbitration was approved by
ConstitntLoii of the the Senate of tbe United States on March 29,
SS^ ""' ^^' ^^^2, and the convention for the renewal of the
modu^ Vivendi on the 19th of April. Both in-
straments were ratified by the President on the 22d of April,
and their ratifications were exchanged on the 7th of May. On
the 9th of May they were duly proclaimed. The way for the
arbitration having thns been cleared, the two governments
proceeded to constitute the tribunal of arbitration, and agreed
on an identic note to be addressed to the governments of France,
Italy, and Sweden and Norway, with a view to the api)oint-
ment of the neutral arbitrators.* As American arbitrators the
President of the United States named the Hon. John M. Har-
lan, a justice of the Supreme Court of the United States, and
the Hon. John T. Morgan, a Senator of the United States. On
the part of Great Britain the arbitrators named were the Eight
Hon. Lord Hannen, of the High Court of Appeal, and the Hon.
Sir John Thompson, minister of justice and attorney-general
for Canada. As neutral arbitrators the President of France
named the Baron Alphonse de Courcel, a senator and ambas-
sador of France; the King of Italy, the Marquis Emilio Vis-
conti Venosta, a senator of the Kingdom and formerly minis-
ter of foreign affairs; and the King of Sweden and [Norway,
Mr. Gregers Gram, a minister of state. As agent the United
States appointed the Hon. John W. Foster, who subsequently
held the oifice of Secretary of State. The British Government
designated as its agent the Hon. Charles H. Tupper, minister
of marine and fisheries for the Dominion of Canada, while Mr.
R. P. Maxwell, of the foreign office, acted as assistant agent
and Mr. Charles Russell as solicitor.
As counsel for the United States there were retained the
Hon. Edward J. Phelps, Mr. James C. Carter, the Hon. Henry
W. Blodgett, and Mr. F. R. Coudert Mr. Robert Lansing and
Mr. William Williams acted with them as associate counsel.
Counsel on the part of Great Britain were Sir Charles Russell,
Q. C, M. P., Her Majesty's attorney -general; Sir Richard
Webster, Q. C, M. P., and Mr. Christopher Robinson, Q. C,
of Canada; and they were assisted by Mr. H. M. Box, barris-
ter at law.
The secretary of the tribunal was M. A. Imbert, a minister
plenipotentiary of France. Tliere were also two cosecretaries.
» For Rel. 1891, 642-643.
Digitized by LjOOQIC
806 INTERNATIONAL ARBITRATIONS.
Messrs. A. Bailly Blanchard and H. Oanynghame, barristers
at law, and four assistant secretaries, MM. G. Chevalier Baa
jotti, Henri Feer, 0. Vicomte de ManneviUe, and Liebert'
Mr. Foster entered on his daties as agent iti
DeUToiyofGaies. May 1892, and at once proceeded to collect
evidence in an authentic form tending to
establish the position assumed by the United States respect-
ing the five points set forth in Article YI. of the treaty and
embracing the facts necessary to a determination of the regn-
lations referred to in Article VII. Between the Ist and 6th of
September 1892, within the time fixed by the treaty, he deli?-
ered to the agent of Great Britain and to the arbitrators the
printed Case of the United States, accompanied by the docn-
ments, official correspondence, and other evidence relied upon
in support of it. In like manner the printed Case of Great
Britain was delivered by the agent of that government The
Case of the United States embraced questions of fact as well
as of law. The Case of Great Britain, however, was found to
contain no evidence touching the nature and habits of tiit
seals, the consideration of which was deemed by the UDitai
States to be necessary to the determination by the tribunal of
questions of right as well as of regulations.
On the 27th of September 1892 Mr. FosIct,
QaettioiL ai to the as Secretary of State,* by direction of tie
?i^,^!^*^**^* President addressed a note to the British
Order of Prooedore. . «^ , . • *
minister m Washington protesting against
this omission in the Case of Great Britain as a failure to
comply with the requirements of the treaty. In this note it
was maintained that it was manifestly contemplated that botb
parties to the treaty should simultaneously submit to the arbi-
trators and to each other their propositions, their claims, and
their evidence upon all points in dispute, and that to reserve
» Maj. E. W. Halford acted as disbursing officer of the United SUtes, wd
there were also employed by the United States, in connection with the
arbitration, Messrs. J. S. Brown, Hubbard T. Smith, Francois S. Jones, Will-
iam H. Lewis, J. T. Conghlin, J. W. Hulse, and E. H. McDemiott Aad
there were employed by Great Britain in varions capacities Messrs. Jobs
Anderson, Ashley Fronde, C. M. G. ; J. Pope, F. T. Piggott, J. Macons, H. .
Hannen, and Douglas Stewart. Messrs. Cherert Bennet, and Davis, of U»'
don, were employed lis shorthand writers by the British agent Tm
Messrs. Chamerot, of Paris, acted as printers for the tribonal.
'Mr. Foster was commissioned an agent of the United States in the fur*
seal arbitration June 6, 1892. June 29, 1892, he became Secretary of St»^
which office he resigned February 23, 1893.
Digitized by LjOOQIC
PUB SEAL ARBITRATION. 807
the evidence which Great Britain might choose to submit con-
cerning the nature and habits and preservation of the far seal
for the Ooanter Case would deprive the United States of any
opportunity to meet it by rebutting, explanatory, or impeach-
ing testimony. To this representation the British Government
replied that, in their opinion, the decision of the questions of
right defined in Article VI. of the treaty depended upon mat-
ters of law, and not upon the habits of seals and the incidents
of seal life; that the concurrent regulations referred to in
Article VII. were not to be taken up by the tribunal except in
the contingency of a decision unfavorable to the United States
under Article VI., and that it would have been illogical to
introduce into the British Case matters properly pertinent to
the subject of concurrent regulations. But as the United
States had expressed a different view, an offer was made to
famish at once to that government and to the arbitrators the
rex>ort of the British commissioners, Messrs. Baden-Powell
and Dawson, under Article IX. of the treaty, which might be
treated as a part of the Case of Great Britain. The Secretary
of State accepted this offer, assuming that the report contained
substantially all the matter on which the British Government
would rely to support its contentions in respect of the nature
and habits of the fur seals, and reserving the right to oppose
the submission to the arbitrators of any matter which might
be inserted in the British Counter Case not relevant by way of
reply to the Case of the United States. He concurred in the
view that the claims of right depended on questions of law,
but insisted that the precise questions of law could not be
known and determined without knowledge of the nature and
habits of the fur seals. On the 30th of September 1892 the
agent of the United States received notice from the agent of
Great Britain that, in accordance with the provisions of Arti-
cle IV. of the treaty of arbitration, the British Government
would require an additional period of sixty days within which
to deliver its Counter Case; and on the 15th of November the
British minister in Washingt>on delivered to the agent of the
United States printed copies of the report of the British com-
missioners, under Article IX. of the treaty, which was found
to contain a statement and discussion of the nature and habits
of the fur seals, of the condition of the Pribilof seal herd, and
of the methods and effects of the killing of seals both in the
water and on the land.
Digitized by LjOOQIC
808 INTERNATIONAL ARBITRATIONS.
In this relation it should be stated that the
J^Jl J^^ ^' joint commission under article IX. was un-
numon oi szperts. , . .
able to make more than a formal joint report.
Its meetings, beginning on Monday the 8th of February 1892,
continued until Friday the 4th of the following month. As
a result of these meetings the commissioners found them-
selves <Mn thorough agreement that for industrial as well as
for other obvious reasons it is incumbent upon all nations,
and particularly upon those having direct commercial inter-
ests in fur seals, to provide for their proper protection and
preservation." Their joint and several investigations had also
led them to certain conclusions in regard to the facts of seal life,
and in regard to such remedies as might be necessary to secare
the fur seal against depletion or commercial extermination.
They found that ^< since the Alaska purchase a marked dimi-
nution in the number of seals on and habitually resorting to
the Pribilof Islands" had taken place, that such diminution
had "been cumulative in effect," and that it was "the resalt
of excessive killing by man." But they found that considera-
ble difference of opinion existed among them on certain funda-
mental propositions, which rendered it impossible in a satis-
factory manner to express their views in a joint report, and
they agreed that they could most conveniently state their
respective conclusions in the "several reports" which they
were authorized to submit to their respective governments.
A joint report to this effect was signed on the 4th of March
by Messrs. Mendenhall, Merriam, Baden-Powell, and Dawson,
as commissioners, and by Messrs. J. S. Brown and A. A. Fronde
as joint secretaries. The separate report of the American
commissioners maintained^ that the number of seals firequent-
ing the Pribilof Islands had greatly diminished during the past
few years, that the decrease in the number of seals was the
result of pelagic sealing, and that the proper remedy was the
suppression of such sealing. The separate report of the Brit-
ish commissioners^ controverted these statements as to the
destructive effects of pelagic sealing, and contended that the
diminution in the seal herd was due largely to the raids made
on the breeding islands, chiefly by citizens of the United
States, and to the methods of driving and killing the seals,
'Fur Seal Arbitration, II. 311.
«Fur Seal Arbitration, VI.
Digitized by LjOOQIC
FUR SEAL ARBITRATION 809
practiced under the authority of the United States, on the
Pribilof Islands.
On the 3d of February 1893 the Counter
DeUveiy of Connter ^^^ ^^ ^^^ United States was delivered to the
CaMS.
British agent and to the arbitrators^ The
British Counter Case was in like manner delivered within the
time required by the treaty. On examining it the representa-
tives of the United States were of opinion that it contaiued a
large body of evidence which could not in a proper sense be
regarded as in reply to the Case of the United States, and
which should, under the terms of the treaty, have been pre-
sented in the original Case of Great Britain. It was, however,
decided not to raise any question on the subject at that moment,
but at the proper time to bring it to the attention of the tri-
bunal of arbitration.
The first session of the tribunal was held in
Xeetisg of the Tri- Paris, in accordance with the terms of the
^ai of ArWtra- ^^.^^^^ ^^ February 23, 1893, but by agree-
ment of the two governments it was of an
informal character and an a^ournment was taken for one
month. At this meeting no business was transacted.
The tribunal reassembled on the 23d of March, when, its
members having assured themselves that their respective
powers were in due form, Lord Hannen proposed that Baron
de Oourcel should be requested by his colleagues to assume
the post of president. The proposal was supported by Mr.
Justice Harlan, and, the other members of the tribunal having
agreed to it, Baron de Courcel took the chair and delivered an
appropriate address, in concluding which he suggested that at
the close of the meeting the members of the tribunal should con-
vey their respects to the President of the French Republic, and
express their gratitude for the hospitality with which they had
been received. The agents then laid before the tribunal the
printed arguments of counsel for their respective governments.
The agent of the United States having intimated that, owing to
an oversight in printing, certain authorities cited in the argu-
ment of the United States had been omitted in the appendices,
he was authorized to present at a later date a supplement con-
taining the omitted citations ; and the right was reserved to the
British Government to reply to such citations, should it be
deemed necessary to do so. It was announced that the pro-
ceedings of the tribunal would be public, and that admission
Digitized by LjOOQIC
810 INTERNATIONAL ARBITRATIONS.
to the discussions might be obtained throagh the seeretary.
The tribunal then adjourned till the 4th of April.
The Cases, Counter Cases, and Arguments
*** **g ^ of the two governments having been intro-
duced into our narrative, it is proper to pre-
sent an outline of their cont^ents. The Case of the United
States, after reciting, in the words of the treaty, the questioDs
submitted to the tribunal of arbitration, proceeded to treat, in
its first part, the historical and jurisdictional questions at
issue. In this relation it sketched the geographical features
of Behring Sea and of the Pribilof Islands, the discovery and
occu])ation of the territories in that quarter of the globe, and
the claims of Russia, Spain, Great Britain, and the United
States to the Northwest Coa-st. It then took up the bistoiy of
the Russian-American Company and its charter in 1799, and
maintained that the ukase of 1821 was regarded by Russia as
merely declaratory of existing rights. In support of this con-
tention it cited various documents relating to the affiftirs of
the Russian-American Company belonging to the Alaskan
archives, which were delivered to the United States on the
cession of Alaska and deposited in the Department of State.
Facsimiles of these documents were presented, together with
translations. It was also maintained that the treaties of 1824
and 1825 were not intended to apply to Behring Sea. In this
relation various papers to which Mr. Blaine had referred were
reviewed, as well as certain acts of the Russian (xovemment
between 1825 and 1867. On the strength of the historical
argument it was asserted that Russia prior to 1824 asserted
exclusive rights of commerce, hunting, and fishing on the
shores and in the waters of Behring Sea; that Behring Sea
was not included in the phrase '^Pacific Ocean,'' as used in the
treaties of 1824 and 1825; that after 1825 Russia continued to
exercise exclusive jurisdiction over Behring Sea, up to the
cession of Alaska to the United States, so far as it was neces-
sary to preserve to the Russian- American Company the monop-
oly, of the fur-seal industry, and that during the whole of
that period British subjects and British vessels were pro^
hibited from entering Behring Sea to hunt for seals, without
any apparent protest on the part of Great Britain. All these
exclusive rights, it was maintained, Russia ceded to the United
States in 1867. The legislation of Congress thereafter adopted
was referred to as asserting like claims; the letter of the
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 811
Treasury Department to Mr. Ancoiia, of March 12, 1881, and
its subsequent communication by Mr. Manning to tbe collector
of customs at San Francisco, were cited in the same sense;
and tbe condemnations of tbe vessels seized in BebriDg Sea
in 1886 and 1887 were invoked as tbe interpretation of the
treaty of 1867 and of tbe legislation of Congress by the judicial
branch of tbe Government of tbe United States.
But, in concluding the discussion of historical and jurisdic-
tional questions, the Case of the United States declared that
the government was not compelled and did not intend to rest
its claims altogether upon the jurisdiction over Behring Sea
established or exercised by Russia prior and up to the time of
the cession of Alaska. Tbe United States, it was said, asserted
that, quite independently of this jurisdiction, it had ^'a right
of protection and property in the fur seals frequenting the
Pribilof Islands when found outside the ordinary three-mile
limit, based upon the established principles of tbe common and
the civil law, upon the practice of nations, upon the laws of
natural history, and upon tbe common interests of mankind.'^
In support of this claim, tbe Case of the United States entered
into a detailed examination of fur-seal life at tbe Pribilof Islands
and elsewhere, and of tbe various interests associated with it.
To this subject tbe second part of the Case was devoted. In
tbe course of the discussion, an examination was made of the
measures taken for the protection and preservation of other
seal herds, including those at the Falkland Islands, New
Zealand, and tbe Cape of Good Hope, and tbe hair seals in
Newfoundland and Greenland. Great Britain and her colonies,
said the Case, had found it necessary to protect the hair seal of
the North Atlantic from extermination, and other nations had
adopted similar measures. Eeference was also made to the
protection by Great Britain of tbe Irish oyster fisheries, the
Scotch herring fisheries, and the pearl fisheries of Ceylon and
Australia; to the regulation by France of tbe coral fisheries of
Algiers, which extend at some points seven miles into the sea;
to the protection by Italy of coral beds distant from three to
fifteen miles from various points of the coast; to the protection
by Norway, under the statute of 1880, of whales in the Varanger
Fiord, an arm of tbe sea about thirty-two marine miles in
width; to a statute of tbe State of Panama, in the Republic of
Colombia, prohibiting the use of diving machines for the collec-
tion of pearls within an area of the sea over sixty marine miles
Digitized by LjOOQIC
812 INTERNATIONAL ARBITRATIONS.
in length and extending outward about thirty marine miles
from the coast; and to the coutrol by Mexico of pearl fisheries
off the coast of Lower California, to a distance of more than
three miles from land. In conclusion, the Case of the United
States submitted the following propositions: ^
^* The United States, upon the evidence herewith submitted
and referred to, claim that the following propositions of fact
have been fully established:
<' First. That the Alaskan fur seal, begotten, bom, and reared
on the Pribilof Islands, within the territory of the United
States, is essentially a land animal, which resorts to the wata
only for food and to avoid the rigor of winter, and can not
propagate its species or live except in a fixed home upon land
of a peculiar and unusual formation, suitable climate and sur-
roundings, a residence of several mouths on shore being neces-
sary for propagation; that it is domestic in its habits and
readily controlled by man while on the land; that it is an ani-
mal of great value to the United States and to mankind, is the
principal source from which the world's supply of fur-seal skins
is derived, and is the basis of an industry and commerce very
important to the United States and to Gi*eat Britain; that the
only home of the Alaskan seal herd is on the Pribilof Islands;
that it resorts to no other land; that its course when absent
from these islands is uniform and confined principally to waters
adjacent to the coast of the United States; that it never min-
gles with any other herd, and if driven from these islands
would probably perish ; that nt all times, when in the water,
the identity of eacli individual can be established with cer-
tainty, and that at all times, whether during its short excur-
sions from the islands in search of food or its longer winter
migration, it has a fixed intention, or instinct, which induces
it to return thereto.
"Second. That under the judicious legislation and manage-
ment of the United States, this seal herd increased in num-
bers and in value ; that the present existence of the herd is due
wholly to the care and protection exercised by the United
States and by Bussia, the former owner of these idands; but
that the killing of seals in the water, which is necessarily indis-
criminate and wasteful, and whereby mostly female seals are
taken while pregnant or nursing, has ho reduced the birth rate
that this herd is now rapidly dec*reasing in numbers; that this
decrease began with the increase of such pelagic sealing, and
that the extermination of this seal herd will certainly take place
in the near future, as it already has with other herds, unless
such slaughter be discontinued.
"Third. That pelagic sealing is an illegitimate, improx>er,and
wasteful method of killing, is barbarous and inhuman in its
immense destruction of the pregnant and nursing female, and
> For Seal Arbitration, II. 296.
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FUR SEAL ARBITRATION. 813
of tbe helpless young thereby left to perish ; that it is wholly
destructive of the seal property aud of the industries and com-
merce founded upon ic, and that the only way in which these
can be preserved to the world and to the governments to which
they belong is by prohibiting pelagic sealing in the waters fre-
quented by the herd.^ # • »
*' Ninth. That the investment of these adventurers in pelagic
sealing is speculative, generally unprofitable, and, when com-
pared with the seal-skin industry of Great Britain, France, and
the United States, which is dependent ux>on this seal herd,
very insignificant; and that the profits, if any, resulting from
pelagic sealing are out of all proportion to the destruction that
it produces.
" Upon the foregoing propositions, if they shall be found to
be established, the material questions for the determination of
this high Tribunal would appear to be:
'* First. Whether individuals, not subjects of the United
States, have a right as against that Government and to which
it must submit, to engage in the devastation complained of,
which it forbids to its own citizens, and which must result in
the speedy destruction of the entire property, industry, and
interests involved in the preservation of this seal herd.
'^ Second. If any such right can be discovered, which the
United States confidently deny, whether the United States
and Great Britain ought not in justice to each other, in sound
policy, for the common interest of mankind, and in the exer-
cise of the humanity which all civilized nations accord to wild
creatures, harmless and valuable, to enter into such reasonable
arrangement by concurrent regulations or convention, in which
the participation of other Governments may be properly in-
vited, to prevent the extermination of this seal herd, and to
preserve it for themselves and for the benefit of the world.
^'Upon the first of the questions thus stated the United
States Government will claim:
^^ First. That, in view of the facts and circumstances estab-
lished by the evidence, it has such a property in the Alaskan
seal herd as the natural product of its soil, made chiefly avail-
able by its protection and expenditure, highly valuable to its
people and a considerable source of revenue, as entitles it to
preserve the herd from destruction, in the manner complained
of, by an employment of such reasonable force as may be
necessary.
'' Second. That, irrespective of the distinct right of prop-
erty in this seal herd, the United States Government has ior
1 The foarth; fifth, sixth, seventh, and eighth propositions in substance
asserted that Russia down to 1867, and then the United States down to
1886, jirohibited tbe killing of fur seals in the waters of Behring Sea, and
that Great Britain acquiesced in tbe prohibition, which had *' never been
questioned until tbe excessive slaughter of these animals, now complained
of, was commenced by individual adventurers about the year 1885."
Digitized by LjOOQIC
814 INTERNATIONAL ARBITRATIONS.
itself, and for its people, an interest, an industry, and a com-
merce derived from the legitimate and proper use of the prod-
uce of the seal herd on its territory, which it is entitled, upon
all principles applicable to the case, to protect against wanton
destruction by individuals for the sake of the small and cas-
ual profits in that way to be gained; and that no part of the
high sea is, or ought to be, open to individuals for the purpose
of accomplishing the destruction of national interests of such
a character and importance.
<< Third. That the United States, possessing, as they alone
possess, the power of preserving and cherishing this valuable
interest, are in a most just sense the trustee thereof for the
benefit of mankind and should be permitted to discharge their
trast without hindrance.
"In respect to the second question heretofore stated, it wiU
be claimed by the United States, that the extermination of this
seal herd can only be prevented by the practical prohibition of
prfagic sealing in all the waters to which it resorts.
*'The United States Government defers argument in support
of the propositions above announced until a later stage of these
proceedings.
"In respect to the jurisdiction conferred by the treaty, it
conceives it to be within the province of this high Tribunal to
sanction by its decision any course of executive conduct in
respect to the subject in dispute, which either nation would, in
the judgment of this Tribunal, be deemed justified in adopting,
under the circumstances of the case; or to prescribe for the
high contracting parties any agreement or regulations in respect
to it, which in equity, justice, humanity, and enlightened policy
the case appears to require."
In conclusion, the Oase invoked a judgment in favor of the
claims of the United States.
In connection with the preparation of the
Faiidflcationof ^^^ ^^ ^^^ United States there occurred a
TranilatioiiB.
curious incident, which it is necessary here to
mention. Eeference has been made to documentary evidence
obtained from the Alaskan archives, tending to show the as-
sertion by Eussia of exclusive jurisdiction and of exclusive
rights as to the fur seals in Behring Sea. On the 2d of Novem-
ber 1892 Mr. Foster, the agent of the United States, infonned
Mr. Tupper, the British agent, that it had just been ascer-
tained that some of the translations were incorrect, and that
as soon as an examination of the matter was completed he
would furnish revised and corrected translations, and indicate
the pages in the Case of the United States where the erroneous
translations had been quoted or referred to. Mr. Foster fur-
ther stated that the nature of the errors that had been dis-
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 815
covered made it certain that the United States had been
grossly imposed upon by the person employed in the work of
translation. On the 19th of November he again communicated
with Mr. Tnpper on the subject, transmitting a list of upwards
of fifteen documents, which, as the result of examination, he
withdrew in their entirety, and inclosing revised translations
of such documents as were retained. It appears that the
original translator of the documents, a native Eussian named
Ivan Petroff, with a view to ingratiate himself with the Gov-
ernment of the United States and to impress upon it the
importance of the Alaskan archives, in the hope that he might
be employed to classify and translate them, made what Mr.
Foster described as ''an astounding series of false transla-
tions." The character and purport of these translations may
be disclosed by a few examples. By one of them Count Nes-
selrode was made to declare on August 18, 1824, that it was the
Emperor's firm determination to protect the Eussian- American
Company's interests ''in the catch and preservation of all
marine animals, and to secure to it all the advantages to which
it is entitled under the charter and privileges."^ The correct
translation shows that Count Nesselrode, referring to the com-
pany, said that "the government has never lost sight of its
interests." Again, on the 21st of July 1824, a special commit-
tee, consisting of Count Nesselrode and other dignitaries of the
empire, made a report in response to an application of the
directors of the Eussian -American Company for an interpre-
tation of the treaty concluded between Eussia and the United
States in that year. By the Petroff translation the report was
made to say that "the sovereignty of Eussia over the shores
of Siberia and America, as well as over the Aleutian Islands
and the intervening sea, has long since been acknowledged by
all the powers," and consequently that "these coasts, islands,
and seas" could not have been referred to in the convention.
By the correct translation it appears that the passage referred
only to "the coasts of Siberia and the Aleutian Islands," and
did not mention either the coasts of America or "the interven-
ing sea."* Without giving other illustrations of the effect of
the false translations it may in a word be stated that their
detection and withdrawal removed practically the only evidence
from destinctively Eussian sources, apart from the ukase of
> Case of the United States, 61.
^Case of United States, 54; Connter Case of the United States, 157.
Digitized by LjOOQIC
816 INTERNATIONAL ARBITRATIONS.
1821, of tbe assertion by Russia of any exceptional jurisdictiou
in Bebring Sea.^
The British Case, adverting to the fact that
The British CaM. " Behring Sea is the common highway to the
Arctic Ocean, with its valuable fisheries,'' and
^^ Great Britain's highway to her possessions in the north via
the Yukon Kiver (of which the free navigation is guaranteed
by treaty'), as well as the route for such communication as
may be held or attempted with the northern parts of the coasts
of !North America to the east of Alaska, and with the estuary
of the great Mackenzie Biver," maintained that Behring Sea
^' is an open sea in which all nations of the world have the
right to navigate and fish ;" and that " the rights of navigation
and fishing can not be taken away or restricted by the mere
declaration or claim of any one or more nations," since ** they
are natural rights, and exist to their full extent unless specific-
ally modified, controlled, or limited by treaty."
In support of these propositions the British Case maintained,
in the first place, by a series of historical notes, that the dis-
covery and exploration of the waters, coasts, and islands in
the quarter of the globe in question were largely due to tbe
navigation of various nations, and especially of Great Britain;
that there was no evidence that before 1821 " Russia either
asserted or exercised in the nonterritorial waters of the Korth
Pacific any rights to the exclusion of other nations ; " that ** dur-
ing the whole of that period tbe shores of America and Asia
belonging to Hassia as far north as Behring Straits, and the
waters lying between those coasts, as well as the islands
therein, were visited by the trading vessels of all nations,
including those sailing under tbe fiags of Great Britain, tbe
United States, Spain, and France, with the knowledge of the
Eussian authorities;" and that 'Hhe only rights, in fact, exer-
^''It is a singalar incident that when the case of the United States
came to be prepared and the Russian archives were examined, what had
been assumed in the legal proceedings to be historical facts could scarcely
be substantiated by a single official document/' — The Hon. J. W, Foster,
in the North American Review, CLXI. (December, 1895) 698.
2 By Article XXVI. of the Treaty of Washington of May 8, 1871, Great
Britain guarantees to the United States in perpetuity the free navigation
of the river St. Lawrence, ascending and descending, from, to, and into
the sea, the United States reciprocally guaranteeing to Great Britain in
like manner the navigation of ^' the rivers Yukon, Porcupine, and Stikine,
ascending and descending, from, to, and into the sea."
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 817
cised by Eassia or on her behalf, were the ordinary territorial
rights connected with settlements or annexations of territory
consequent npon such settlements, and the only rights she par-
ported to deal with or confer were rights and privileges given
to the EussianAmerican Company, as Eussian subjects, in
preference over other Eussian subjects." ^
Taking up in its order the ukase of 1821, the British Case
maintained that this edict, which was "the first and only
attempt on the part of Eussia to assert domiuion over, and
restrict the rights of other nations in, the non-territorial waters
of the Xorth Pacific, including those of Behring Sea, was
made the subject of immediate and emphatic protest by Great
Britain and the United States of America;" that "Eussia
thereupon unequivocally withdrew her claims to such exclusive
dominion and right of control;^ that "the conventions of
1824 and 1825 declared and recognized the rights of the sub-
jects of Great Britain and the United States to navigate and
fish in all parts of the non-territorial waters over which the
ukase purported to extend ; " and that " from the year 1821 to
the year 1867 the rights of navigation and fishing in the waters
of Behring Sea were freely exercised by the vessels of the
United States, Great Britain, and other foreign nations, and
were recognized as existing by Eussia."*
' Bancroft, History of Alaska, 37, 63-74, 141, 157, 174, 194-197, 217-221, 186,
191, 224, 243, 255, 243, 270-272, 267-270, 296, 273, 325, 285, 274, 275, 244, 296, 389,
384, 395, 398, 399, 305, 377-379, 338, 339, 321, 302, 391, 393, 301, 299, 308, 309, 379-
380, 389, 404-409, 477, 446, 451, 454, 478, 479, 461, 480, 467, 470, 429, 483, 472, 480,
503, 504, 505, 506, 501, 522, 525, 528, 531, 591 ; History of the Northwest Coast,
I. 185, 204-212, 250-257, 297, 304-306, 307, 308, 311, 312-317, 318, 319, 320, 325,
326, 329, 335, 338, 340; Cook, Voyage to the Pacific Ocean, 1776-1780, London,
1874; Bauer's Account of Billing's Expedition, 279, 281 ; A Voyage Around
the World, London, 1789; Meares's Voyages, 1790; Annual Register, 1790,
XXXII. 287 ; Vancouver, III. 498; Voyage of Discovery to the Pacific Ocean,
London, 1798; Am. State Papers, For. Rel. V. 461, 446, 449, 436; IV. 406;
Greenhow, History of Oregon and California, 266, 267 ; North Am. Review,
1822, VoL XV. Article XVIII.; Encyclopedia Britannica, 9th ed. XIX. 319;
Quarterly Review, January, 1822; H. Ex. Doc. 177, 40 Cong. 2 sess. 149.
2 Krusenstem's Voyage, 1. 14 ; Am. State Papers, For. Rel. V. 438-443, 448,
453-454, 452, 46.5-466, 436; various documents printed in the Appendix to
British Case, Vols. I., II., III., IV.; Bancroft, History of Alaska, 532, 446,
534, 537-539, 540, 546, 536, 544, 582, 565, 547, 548-552, 555, 583, 553, 556, 557, 559,
568,583, 558-560, 576, 584, 585, 572, 586, 574, 570, 668, 592, 578, 579,580,669,
593; S. Ex. Doc. 106, 50 Cong. 2 sess. 204, 205, 207, 208, 210, 259, 262, 268, 233,
234, 238, 251 ; Wharton, Int. Law Digest, II, 226 ; 1.3; Letters and Writings
of Madison, Philadelphia, 1865, 446; Greenhow, Memoir Hist, and Polit. of
5627 52
Digitized by LjOOQIC
818 INTERNATIONAL ARBITRATIONS.
Ou these j^^rouiuls the British Oase nmintsiined that Russia's
rights ^'as to jurisdiction and as to the seal fisheries in Behring
Sea," referred to in point 4 of Article VI. of tbe treaty of arbi-
tration, *' were such only as were hers according to interna-
tional law, by reason of her right to the possession of the shores
of Behring Sea and the islands therein;'' that the treaty of
cession, which drew a water line merely for the purpose of
dividing the numerous islands, did "not purport either ex-
pressly or by implication to convey any dominion in the waters
of Behring Sea, other than in the territorial waters which would
pass according to international law and the practice of nations
as appurtenant to any territory conveyed;" that "from the
year 1867 down to the year 1886 " the action of the United
States and Eussia was " consistent only with the view that the
rights possessed by the United States and by Russia respec-
tively in the waters of Behring Sea were only those ordinarily
incident to the possession of the coasts of that sea and the
islands situated therein." In support of these propositions the
British Case said that when Russia released her sovereignty
over the Pribilof Islands sealers at once landed there, those
from the New England States finding competitors from the
Hawaiian Islands. In 1868 240,000 seals were reported to have
been taken, and 87,000 in tbe following year. With knowledge
of this fact the Government of the United States confined it«
legislation and executive orders to the protection of the seals
on the islands, though reports were frequently made as to
pelagic killing. It was not till 1881 that the Treasury Depart-
ment, in the letter to Mr. Ancona, took the ground that the
United States had jurisdiction over the eastern part of Behring
the Northwest Coast, etc. ; The Geography of Oregon and California, etc.,
New York, 1S45; History of Oregon and California; Report on the Seal
Islands of Alaska, Washington, 1881, 6, 7, 110; Woolsey, Int. Law, 3d ed.
83; Davis, Outlines of Int. Law, 44; J. B. Angell, The Forum, November,
1889; PhilUmore, Int. Law, 2d ed. L 241; Hall, Int. Law, 147; Bancroft,
History of the Northwest Coast, 1. 341, 342 ; Dall, Alaska, 233, 234 ; Beecher's
Voyage to the Pacific and Behring Strait, II. 335; H. Ex. Doc. 177, 40 Cong.
2 sess. 39. 85, 132, 183; Message of President Van Buren, December 3, 1838,
Br. and For. State Papers, XXVI. 1330; Enoycloptedia Britanuica, XIX. 321;
Fishery Industries of the United States, Sec. V., vol. 1, 209, 210; vol. 2, 84-
85, 314 ; U. S. Stats, at L. 539-543 ; Congressional Globe, December 11, 1867, 40
Cong. 2 sess. part 1, 138 ; July 1, 1868, 40 Cong. 2 sess. part 4, 3667, 3668 ; July
9, 1868, 40 Cong. 2 sess. ])art 5, 490. Various gazetteers, dictionaries, and
geographical works were also cited to show that in 1824, as well as later,
Behring Sea was understood to form an integral part o€ the Pacific Ocean.
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 819
Sea; but uo seizures were made, nor were any warniugs given
to any British vessel engaged in sealing beyond the ordinary
territorial limits till 1886. By correspondence with Eussia in
1882 the Department of State of the United States was informed
that Russia claimed no jurisdiction along her coasts and islands
beyond those limits. And in 1885 Mr. Bayard, as Secretary of
State, writing to Mr. Lothrop, the minister of the United States
at St. Petersburg, in relation to the seizure of the American
schooner Henriettay said that a right of redress ^< would arise,
if it should appear that, while the seizure was made within the
three-mile zone, the alleged offense was committed exterior to
that zone, and on the high seas." The British vessels seized in
Behring Sea in 1886 and 1887 were, said the British Case, con-
demned on the ground that that sea was a mare cl<iuBumy and
that as such a part of it had been conveyed by Eussia to the
United States. This ground was subsequently abandoned by
the United States, and a claim was set up to an exclusive juris-
diction of a hundred miles from the coast, and also to property
in and a right of protection over fur seals in nonterritorial
waters.*
As to the claim of property in and a right to protect the fur
seals outside of the three-mile limit, the British Case maintained
that the claim was "entirely without precedent," and "in con-
tradiction of the position assumed by the United States in
analogous cases on more than one occasion;" that outside of
Behring Sea citizens of tbe United States had pursued seals
for years without let or hindrance and with the full knowledge
of their government, and that the proposition that on one side
of the Aleutian Islands a seal was the property of the United
States and on the other side the property of any man who
could catch it could be supported only on the ground that
1 EHiott, Census Report, 25, H. Ex. Doc. 3883, 50 Cong. 2 sess. 58, 87,88;
U. S. Stats, at L. XV. 241 ; Ex. Doc. 109, 41 Cong. 2 sess. ; H. Ex. Doc. 83, 44
Cong. 1 sess. 30, 32-34, 125 ; S. Ex. Doc. 106, 50 Cong. 2 sess. 139, 140, 134, 260,
261, 253, 255, 259, 258, 263, 269, 267, 270, 135, 185, 40, 84, 101, 89; H. Ex. Doc.
130, 44 Cong. 1 sess. 124 ; H. Ex. Doc. 40, 45 Cong. 3 sess. 65, 68 ; H. Ex. Doc.
35, 44 Cong. 1 sess. ; H. Ex. Doc. 153, 49 Cong. 1 sess. ; H. Misc. Doc. 602, 50
Cong. 1 sess. 28, 33; H. Report 623, 44 Cong. 1 sess.; H. Ex. Doc. 153, 49
Cong. 1 sess. ; H. Report 3883, 50 Cong. 2 sess. 10, 23, 24 ; Wharton, Int. Law
Digest, 1. 106 ; Fishery Industries of the U. S., sec. 5, Vol. II. 20, 85 ; Vol. III.
313, et seq. ; Papers relating to Behring 8ea Fisheries, Washington, 1887,
121; Report of Governor of Alaska, 1886, 36; Blue Book ''United States No.
2 (1890)," 7, 30, 45, 245, 243, 237, 234, 21, 112, 89; *' United States No. 1 (1891)/'
37, 38, 41, 52, 54, 56, 87; " United States No. 3 (1892)," 39, 2, 4.
Digitized by LjOOQIC
820 INTERNATIONAL ARBITRATIONS.
Behring Sea was mare clausum. Id this relation the British
Case referred to the case of the schooner Harriet and other
American vessels, which were seized by the Argentine authori-
ties in 183 L for killing seals on the Falkland or Malvinas
Islands, and which were forcibly released by the American
man-of-war Lexington^ the United States defending this act on
the ground^ among others, that '^ the ocean fishery is a natacal
right which all nations may enjoy in common," and that it may
be exercised not only in the water itself, bat also on unin-
habited coasts.^
After citing various authorities as to the extent of territorial
jurisdiction and the freedom of the fisheries outside of it,^ and
declaring that even if the Russian claim to hold a part of the
Pacific as mare clausum had been well founded it would have
been destroyed by the cession of a part of the inclosing terri-
tory to the United States,^ the British Case maint«.ined that the
right to protect the seals was limited to the right to prevent
ships and persons from entering territorial waters for the pur-
pose of capturing them. Upon analogous questions, it was
said, a similar principle had been recognized and enforced. In
1804, during the war with France, Great Britain "claimed to
search neutral vessels on the high seas, and to seize her own
subjects when found serving under a neutral flag." The United
States not only opposed the claim, but insisted " that in no case
did the sovereignty of any nation extend beyond its own
dominions and its own vessels on the high seas." * A similar
I Br. aud For. State Papers, XX. 335,349,351; Iluut's Merchants' Maga-
zine, February 1842, 137, 142, 143.
3 1 Kent's Comni., 9th ed. 29; Wheaton's Elements, Dana's ed. 269; Wool-
sey's Int. Law, 6th ed. sec. 59, p. 73 ; R. U. Dana, Documents and Proceedings
of the Halifax Commission, 1653; Phillimore, Int. Law, 6th ed. I. sec. 174;
Mr. Seward to Mr. Tassara, Whiirton's Int. Law Digest, I. sec. 32, 103;
Ortolan, Diploraatie de la Mer., dd. 1864, 145, 153; Caae of the Washing-
ton, Documents and Proceedings of the Halifax Commission, 152, 153;
Opinion of Mr. Fish, Secretary of State, Wharton's Int. Law Digest, I. sec.
32, p. 106; Bluntschli, Law of Nations, book 4, sees. 302, 309; Vattel, Law of
Nations, book 1, Ch. XXIII, sees. 289, 291 ; Kliiber, Droit desGens Modemes
de I'Europe, Paris, 6d. 1831, I. 216.
3 Ortolan, Diplomatic de la Mer, 4th ed. 1. 147 ; Twiss, Rights and Duties
of Nations in Time of Peace, 1884, 293; Halleck, Int. Law, I. c. 6, 143-145;
Mr. Hoffman to Mr. Frelinghuysen, March 14, 1882, S. Ex. Doc. 106, 52 Cong.
2 sess. 260, 261 ; American Rights in Behring Sea, by Prof. J. B. Angell, The
Forum, November 1889.
* Mr. Madison to Mr. Monroe, January 5, 1804, Am. Stat. Papers, For.
Rel. 11. 730.
Digitized by LjOOQIC
FUE SEAL ARBITRATION. 821
view had prevailed in respect of the slave trade, for the pre-
vention of which, notwithstanding its immorality and injns-
tice, nations refuse to allow the exercise of visitation and
search on the high seas.'
In the Oonnter Case of the United States it
Counter Case of ^^^ observed that the British Case was "de-
Vmted States.
voted almost exclusively to showing that the
Government of the United States is not entitled to exercise terri-
torial jurisdiction over the waters of Behring Sea or to exclude
therefrom the vessels of other nations," while, on the other hand,
the Case of the United States made it " plain that the main
object had in view by the latter Government is the protection
and preservation of the seal herd which has its home on the
Pribilof Islands.'' But as, in consequence of the Petroff falsifi-
cations, " some evidence which the United States Government
had relied on, to prove that for many years prior to the cession
of Alaska Russia had prohibited the killing of fur seals in the
waters frequented by them in Behring Sea," has turned out
"to be untrue," it became "necessary for the United States to
restate, in part, their position in resi)ect to some of the ques-
tions submitted to this tribunal." Proceeding, then, to state
the position of the United States as to Behring Sea and the
Northwest Coast, the Counter Case said that by the ukase of
1799, as well as by its subsequent action, the Russian Govern-
ment manifested an intention to maintain "a strict colonial
system" in those regions. The ukase of 1821, prohibiting for-
eign vessels from approaching within one hundred miles of the
coasts, "was a renewed declaration of the colonial system
already referred to." The United States did not impute to
Russia an intention to treat the one-hnudred mile belt as
territory belonging to her, with the right to exclude foreign
vessels for all purposes, but merely the intention "to preserve
for the use of its citizens its interests on land by the adoption
of all necessary, even though they be somewhat unusual, meas-
ures, whether on land or at sea." ^ While it did not appear from
the documents after 1821 " to what distance from the shores of
Behring Sea Russia actually sought to protect her colonies
against inroads from foreigners," yet, said the Counter Case,
» Le Louis, 2 Dodson's Adm. 210; The Antelope, 10 Wheaton, 66; Whea-
ton's Elements, Dana's ed. 359-360; Br. and For. State Papers, XXXII. 575.
* Bancroft, History of Alaska, 583, 584, and various documents referred
to in the Case of the United States.
Digitized by LjOOQIC
822 INTERNATIONAL ARBITRATIONS.
^Hhere is uotbing to show that she had in the meanwhile
receded from the position taken in the ukase of 1821 and sanc-
tioned, as the United States claim, by the resulting treaties.
On the contrary, the broad language in which a patrol of the
colonial seas is directed to be instituted, especially about
the Pribilof and Commander Islands, strongly suggests that
even at this late period Eussia was still safeguarding her
colonial interests by all necessary means. " It is true,'' the
Counter Case of the United States continued,
" no instance appears to have been recorded where a vessel
was warned or seized for actually killing fur seals in the waters
of Bebring Sea. But in view of what we know of Eussia's
solicitude and care for her sealeries, especially in the years fol-
lowing 1836, it can not be doubted that such killing, had it
occurred, would have been regarded as unlawful. In making
this assertion the United States believe they are fully sus-
tained by Kussia's action during the summer of 1892. In that
year sealing vessels assembled in great numbers about the
Commander Islands and killed fur seals in the extraterritorial
waters surrounding this group. Eussia, anticipating that her
seal herd would be thus preyed upon, had dispatched to those
waters in tlie early part of the season two cruisers, which
seized six vessels, five of them British and one of them Ameri-
can, carrying them in from a distance greater than three miles
from any land."
By way of "final observation" upon this branch of the con-
troversy the Counter Case of the United States pronounced
<Hhe whole subject of the character and extent of the Eussian
occupation and assertion of right in and over Behring Sea"
a question "of secondary and very limited importance in the
consideration of the case submitted to the Tribunal." The
United States relied on the evidence submitted that Eussia at
a very early period in her occupancy of Alaska established "a
fur-seal industry" on the Pribilof Islands "and annually killed,
a portion of the herd frequenting those islands for her own
profit and for the purposes of commerce with the world ; that
she carried on, cherished, and protected this industry by all
necessary means, whether on land or at sea, throughout the
whole period of her occupancy and down to the cession to the
United States in 1867;" that "by no act, consent, or acquies-
cence of Eussia was the right renounced to carry on this indus-
try without interference from other nations, much less was a
right in other nations to destroy it in any manner admitted or
recognized; and that no open or known persistent attempt had
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 823
ever been made to interfere with it down to the time of the ces-
sion of Alaska to the United States ; " and that the claim made
by the United States of a right <^to prot.ect and defend the
property and interest^' thus acquired and "ever since sedu-
lously maintained," while "in no sense dependent upon any
right previously asserted by Eussia in the premises,'' was,
" nevertheless, in strict accordance with, and in continuation
of, the industry thus established and the rights asserted and
maintained by Russia in connection therewith."
As to the case of the schooner Harriet^ seized by the Argen-
tine authorities in 1831, to which reference was made in the
British Case, the Counter Case of the United States said that
"the question of jurisdiction on the high seas, or as to the
rights of protection or property in the seals when found on the
high seas," was not involved in the case, the Harriet having
been charged with taking seals on land; that the real ques-
tion in dispute was whether the Eepublic of Buenos Ayres
owned the coasts on which the seals were taken; and that the
United States were "not now called upon to discuss" the posi-
tion " assumed by the United States charge d'affaires at Buenos
Ayres" as to the common right to fisheries on uninhabited
coasts.
The Counter Case went very fully into the facts of seal life,
and also into the subject of regnlatious.
It has been se«n that in the Counter Case
^""*18M^°'* ™ of the United States reference was made to
" Russia's action during the summer of 1892,"
as the first known instance of the warning or seizure of vessels
by that government for killing seals in the waters of Behring
Sea; and it may be observed that Mr. Coudert, of counsel for
the United States, in his oral argument spoke to the same
effect, saying that the seizures of 1892 constituted "all the
information that we have upon the subject. It is imperfect;
it is by no means as full as the tribunal might like to have it;
but the learned arbitrators will understand that that is not a
subject upon which we can have official evidence, and we
must let the evidence, such as has appeared in the case, speak
for itself." ^ In the course of the oral argument of Sir Charles
Russell, when the questions in the treaty of arbitration relat-
ing to the transfer to tlie United States of "the riglits of
Russia as to jurisdiction, and as to the seal fisheries in Behring
'Fur <'!i: r in t: 11. XII. 413.
Digitized by LjOOQIC
824 INTERNATIONAL ARBITRATIONS.
Sea,^ eapSt of the line in the treaty of 1867, were under discas-
sion, Baron de Courcel, the president of the tribanal, advert-
ing to the fact that those questions were expressed in almost
the *' very words'' used by Mr. Blaine in his note to Sir Julian
Pauncefote of December 17, 3890, said he supposed that, when
Mr. Blaine formulated them, ''he relied on some intrinsic argu-
ments of value," and that he probably had before him the
"interpolations" of Ivan Petroflf. In this inference Lord
Hannen and Sir Charles Eussell concurred. Mr. Foster, the
agent of the United States, then stated, as a matter of fact,
that Mr. Blaine had no knowledge of the interpolations, the
documents not having been translated nor their contents made
known to the officials of the United States till after the con-
clusion of the treaty of arbitration. After this the following
dialogue occurred :
" Sir Charles Eussell. I accept, of course, what Mr.
Foster says, speaking from his own experience, that Mr. Blaine
did not know of these documents at the time, and that there-
fore he was relying upon the view that he took of the trea-
ties. There are references in his corres]>ondence which I will
not now refer to which 1 And a little difficulty in accounting
for except by reference to some of these documents — I mean as
to acts of assertion by Eussia, which I do not find vouched
for anywhere else except in these documents.
" Mr. Carter. Can you point to anything in Mr. Blaine's
letter indicating that he knew of the contents of these docu-
ments?
"Sir Charles Eussell. No; I do not say these docu-
ments. I do not doubt Mr. Foster's statement in the least
upon the subject; but Mr. Blaine must have had some idea
that there were in existence documents which would support
the statements that there were acts of assertion by Eussia
which could be relied upon.
"Mr. Foster. Why did he not produce them at the time!"
It seems that there was one seizure by Eussia, or under
Eussian authority, of a foreign vessel for taking seals in Beh-
ring Sea prior to the cases in 1892. This was the case of the
British Columbian schooner Araunah in 1888. The master of
the schooner alleged that she was seized off Copi)er Island
about six miles from the nearest land. The captors alleged that
she was nearer. It appeared, however, that the crew of the
schooner were carrying on their operations in canoes between
the schooner and the land, and it was affirmed that two of the
canoes were within half a mile of the shore. Lord Salisbury
said Her Majesty's government were "of opinion that, even if
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 825
the Araunah at the time of the seizure was herself oatside the
three-mile territorial limit, the fact that she was, by means of
her boats, carrying on fishing within Bussian waters without
the prescribed license warranted her seizure and confiscation
according to the provisions of the municipal law regulating
the use of those waters." The " provisions of the municipal
law" referred to by Lord Salisbury were the regulations relat-
ing to 'trading, hunting, and fishing" ^<on the Eussian coast or
islands in the Okhotsk and Behring seas, or on the northeast-
em coast of Asia, or within their sea boundary line," which
were published in San Francisco and in Japanese ports in 1881
and 1882.' These regulations were made the subject of inquiry
by the Government of the United States at the time through
its diplomatic representative at St. Petersburg, and the cor-
respondence was published in the volume of Foreign Eela-
tions for 1882. M. de Giers, the Eussian minister of foreign
affairs, in a note of May 8 (20), 1882, stated that the regula-
tions extended ^' strictly to the territorial waters of Eussia
only."* The vessels seized by the Eussian authorities in 1892
were six in number.^ In regard to four of them the evidence
was conclusive that their canoes were taking seals within the
three-mile limit. In regard to the other two, though it was said
that the " moral evidence" of the same fact was equally con-
clusive, yet as the canoes were *iot actually seen within terri-
torial waters the Eussian Government undertook to make
indemnity.* On February 12 (24), 1893, however, the Eussian
minister of foreign affairs, in response to an inquiry made in
behalf of Canadian sealers as to the limits within which they
would be permitted to carry on their operations during that
year, wrote to the British ambassador that "the insufficiency
of the strict application of general rules of international law
to this matter" was admitted in the negotiations between
Eussia, Great Britain, and tbe United States in 1888, and that
the necessity for exceptional measures had been " more lately
confirmed by the Anglo-American agreement of 1891," which
had placed Eussian interests in an " absolutely abnormal and
» Bine Book " Rassia No. 1 (1890)."
""For. Rel. 1882, pp. 447-451, 452-454. The inqniry of the United States
related to cod fishing ; in the case of the Araunah M. de Qiers stated that
the regnlations governed sealing also.
' When these seizures of 1892 were referred to in the Connter Case of the
United States, the precise facts were not known. The diplomatic corre-
spondence was published in Great Britain while the tribunal of arbitra-
tion was in session. See, in/rat 911.
^Blue Book '< Russia No. 3 (1893)."
Digitized by LjOOQIC
826 INTERNATIONAL ARBITRATIONS.
exceptional position." ^^ The prohibition of sealing within the
limit-s agreed upon in the modus vivendi of 1891 has, in fact," said
the Russian minister of foreign affairs, '^caused such an increase
in the destruction of seals on the Eussian coast that the com-
plete disappearance of these animals would be only a question
of a short time unless efficacious measures for their prctection
were taken without delay." On these grounds he stated that
for the ensuing season, and pending the adoption of interna-
tional regulations, Eussia would, as a measure of ^^ legitimate
self defense," prohibit sealing within ten miles of all her coasts,
and within thirty miles of the Commander Islands and Eobben
Island.' The British Government declined to admit that
Eussia had a right to extend her jurisdiction over British ves-
sels outside the usual territorial limits, but in order ^^ to afford
all reasonable and legitimate assistance to Eussia in the exist-
ing circumstances," expressed a readiness at once to enter into
an agreement with the imperial government for the enforce-
ment of the protective zones proposed in the note of the minis-
ter of foreign affairs. Such an agreement was concluded in
May, 1893.2
The British Counter Case reviewed at length
Britiih Counter Case, the positions assumed in the Case of the United
States, l^eferring to the period prior to 1821,
it maintained that the only Eussian settlement north of' the
Aleutian Islands was Nushagak, with five Eussian inhab-
itants, founded in 1818; that any Eussian title by discovery
was open to doubt, and that there was none by occupation or
colonization; that in all the evidence relating to the period
there was no distinction as regarded the title of Eus>ia or its
> Id explanation of the grounds of these measures, the minister of foreign
affairs said: "With regard to the ten-mile zone along the coast, these
measures will be justitied by the fact that vessels engaged in the seal fish-
ery generally take up positions at a distance of from seven to nine miles
ftom the coast, while their boats and crews engage in sealing both on the
coast itself and in territorial waters. As soon as a cruiser is sighted, the
ships take to the open sea and try to recall their boats from territorial
waters. With regard to the thirty-mile zone around the islands, this
measure is taken with a view to protect the banks, known by the sealers as
'sealing grounds,' which extend round the islands, and are not shown with
sufficient accuracy on maps. These banks are frequented during certain
seasons by the female seals, the killing of which is particularly destructive
to the seal species at the time of year when the females are suckling their
young, or go to seek food on the banks known as ' sealing grounds.'"
«Blue Book ''Russia No. 1 (1893)/'
Digitized by LjOOQ IC .
PUR SEAL ARBITRATION, 827
recognition by other nations between coasts north and south
of 60O of north latitude; and that there was no evidence of
the exclusion of foreign ships from Behring Sea, or from seal
hunting therein, beyond the Petroff interpolations, which had
been withdrawn. As to the claim of a right to protect the seals
outside of the three-mile limit, the British Counter Case said,
among other things, that if the identification of each seal and
its annual return to the Pribilof Islands were assumed as facts,
the United States could " show no title without proof that the
seal was tame or reclaimed before its departure, and that it
intended to return, not only to the islands, but to some spot
where it would be under the care and control of its owner.''
The British Counter Case also reviewed the laws of the seven
British colonies, of Scotland, Ireland, and ten other countries,
including Russia, which had been cited in the Case of the
United States in support of the claim of protection, and
declared that while in some instances they extended only to
waters that might properly be considered territorial, in no
instance was it shown that extraterritorial jurisdiction over
foreigners was asserted or exercised^ The British Counter
Case concluded with a discussion of the subject of regulations.
The Case of the United States was supported
Printed Argument of by counsel in a written argument. In this
FatuMToTLaw ^ argument Mr. Carter discussed, first, the ques-
tion, "What law is to govern the decision!"
The determination of the tribunal must, he said, "be grounded
upon principles of right.'" By the " rule or principle of right"
was meant "a moral rule" dictated by "that general standard
of justice upon which civilized nations are agreed." "Just
as, in municipal societies," said Mr. Carter, " municipal law,
aside from legislative enactments, is to be found in the general
standard of justice which is acknowledged by the members of
each particular state so, in the larger society of nations, inter-
national law is to be found in the general standard of justice
acknowledged by the members of that society." This " interna-
tional standard of justice" was "but another name for inter-
national law." "Municipal and international law flow equally
from the samesource." All law " is butapart of the greatdomain
of ethics. It is founded, in each case, upon the nature of man
and the environment in which he is placed." The " original and
universal source of all law " might, continued Mr. Carter, some-
' Some of the laws in question relate to oyster, pearl, and coral bedB.
Digitized by VjOOQ IC
828 INTERNATIONAL ARBITBATIONS.
times be designated as the law of nature, sometimes as natural
justice, sometimes as the dictates of right reason; bat, however
described, ^^the same thing is intended." The principles and
rules derived from this source were properly termed law, though
there was no common superior which might be appealed to for
their enforcement. "The public opinion of the civilized world
is a power to which all nations are forced to submit." ^
" That there is a measure of uncertainty concerning the pre-
cepts of the law of nature and, consequently, in international
law, which is derived from it, is," said Mr. Carter, " indeed
true." But this uncertainty was, he declared, found "in all
the moral sciences." It was exhibited in municipal law,
though not to so large an extent as in international law.
" The loftiest precepts of justice taught by the most elevated
and refined intelligence of the age may not be acquiesced in
or appreciated by the majority of men." Thus the actual rules
of municipal law "often fall short of the highest standard of
natural justice," and "erroneous descriptions in municipal
tribunals are of frequent occurrence." Such decisions must
" necessarily be accepted as declarative of the rule of justice.
They represent the national standard of justice accepted and
adopted in the states where they are pronounced." "So, also,
in international law, the actual practice of nations does not
always conform to the elevated precepts of the law of nature.
In such cases, however, the actual practice must be accepted
as the rule," since it exhibits what may be called the interna-
tional standard of justice, on which the nations of the world
are agreed. "But, although the actual practice and usages of
nations are the best evidence of what is agreed upon as the
law of nations, it is not the only evidence. These prove what
nations have in fmt agreed to as binding law. But in the
absence of evidence to the contrary, nations are to be presumed
to agree upon what natural and universal justice dictates."
It is thus, continued Mr. Garter, that international as well as
municipal law is developed; and if a case arises for which the
usages and practice of nations furnish no precedent, it is not
■ On the various propositions above qaoted Mr. Carter cited Mackintosh's
Dissertation on the Law of Nature and of Nations; Bacon's De Argu-
mentis Scientiarum ; Cicero, De Republica, Lib. III. Cap. XXII. sec. 33;
Blacks tone, Comm. Book I. *41 ; Cicero, De Legibas, Lib. I. Cap. VI. sec. 6;
Just. Inst., 1. 1, 3; Phillimore, Int. Law. 3 ed. 1879, vol. 1. Sec. LX.; Story,
Conflict of Laws, Ch. II. sec. 35; La Jeune £ug6nie, 2 Mason's Rep. 449.
Digitized by LjOOQIC
, FUR SEAL ARBITRATION. 829
to be inferred that no rule exists. A rule is tben to be drawn
from the dictates of natural justice, to which nations are pre-
sumed to yield their consent.
Assuming that the foregoing observations were well founded,
Mr. Carter maintained that the tribunal, in making its decision,
should look, Urst, to <^ the actual practice and usages of nations,'*
as found in their relations, their treaties, and their diplomatic
correspondence; and, second, to the judgments of courts which
profess to administer the law of nations, such as prize courts,
and in some instances courts of admiralty. If these sources
failed to furnish a rule, the tribunal should look, third, "to the
great source from which all law flows, the dictates of right
reason, natural justice; in other words, the law of nature.''
And in ascertaining the law of nature on any particular ques-
tion, the tribunal should look, fourth, to "the municipal law of
states, so far as it speaks with a concurring voice," as "a prime
fountain of knowledge ; " and, fifth, in all cases, with respect, to
"the concurring authority of jurists of established reputation
who have made the law of nature and nations a study." '
1 In support of his argument Mr. Carter cited, in addition to the authori-
ties already referred to, the following : Sixty Hogsheads of Sugar v, Boyle,
9 Cranch, 191, 197; Pomeroy, Lectures on Int. Law, ed. 1886, Ch. I. sees. 29,
30, 31, 33, pp. 23-26; Phillimore, Int. Law, 1871, Ch. III. 14-28; Maine,
Int. Law, 13-47; Wheaton, Int. Law, part 1, ch. 1, sees. 4, 14; Kent,
Conim. part 1, lect. 1, pp. 2-4; Halleck, Int. Law, Ch. II. sec. 13, p. 50, and
sec. 18, p. 54; Woolsey, Int. Law, ed. 1894, sec. 15, p. 14; Wolff, quoted hy
Vattel, preface to 7th Am. ed. p. ix. ; Hantefeuille, Des Droits et des De-
voirs des Nations Neutres en temps de Guerre Maritime, 1848, vol. 1, pp. 12,
46 ; Bentham, False Manner of Reasoning in Matters of Legislation ; Pufen-
dorf, Le Droit de la Nature et des Gens, by Barbeyrac, 5th ed. vol. 1, book 2,
ch. 3, sec. 23, p. 243, et seq. ; Ortolan, International Rules and Diplomacy
of the Sea, Paris, 1864, vol. 1, book 1, Ch. IV. 71 ; Heineccius, A Method-
ical System of Universal Law, by Turnbull, 1763, Sees. XII., XXI., XXII. ;
Vattel, 7th Am. ed. preface, pp. v. vi. xiii. Ivi. sec. 5, p. Ivi. sec. 6; Mar-
tens, Law of Nations, by Cobbett, 4th ed. 1829, introduction, 2; Fergu-
son, Manual of International Law, 1884, Vol. I. Part I. Ch. III. sec. 21, p. 66;
Testa, Le Droit Public Int. Maritime, by Boutiron, 1886, part 1, ch. 1 ;
Burlamaqui, The Principles of Natural and Politic Law, by Nugent, 1823,
Part II. Ch. VI. 135, 136; F. de Martens, Int. Law, Paris, 1883, vol. l,pp.
19, 20; Li. R. P. Tuparelli d'Azeglio, de la Compagnie de J^sus, Traduit
de Pltalien, 2d ed., II. ch. 2; Grotius de Jure Belli ac Pacis, Prolog. ; Heff-
ter. Int. Law of Europe, 2; Bluntschli, Le Droit Int. Codifid, pp. 1, 2; P.
Fiore, book 1, ch. 1; Ahrens, Course of Natural Law, Vol. II. Book III.
ch. 1; Mass^, Commercial Law, Paris, 1874, book 1, Lib. II. oh. 1, p. 33;
Renault, Introduction ^ I'jStude du Droit Int., Paris, 1879, 13, 14.
Digitized by LjOOQIC
830 INTERNATIONAL ARBITRATIONS.
Mr. Carter next considered the subject of
aoMtioiii of Juris- «< the acquisition by Eussia of jurisdictiocal or
^*^ ^ other rights over Behring Sea and the trans-
^^^ fer thereof to the United States." Referring
to the first four questions submitted to the tribunal of arbi-
tration, Mr. Garter said that, in the discussions of the author-
ity which nations might exercise on the high seas, two subjects,
essentially distinct, had been confounded. One was the sov-
ereign right of making laws operative on the high seas and
binding ui>on foreigners and citizens alike, which must be
limited by some definite boundary line, and the other was <' the
protection aflforded by a nation to its property and other rights
by reasonable and necessary acts of power against the citizens
of other nations whenever it may be necessary on the high seas
without regard to any boundary line." The term "jurisdiction "
had been indifferently employed to denote both things, and it
had thus become a word of ambiguous import. Indeed, the
two subjects might appear to have been to some extent con-
founded, or blended, in the minds of the negotiators of the
treaty, which required the tribunal to determine, on the one
hand, what "exclusive jurisdiction" in Behring Sea Russia
had asserted and exercised, which might not unreasonably be
understood as referring to sovereign legislative power, and, on
the other hand, what exclusive right in the "seal fisheries" in
Behring Sea Russia had asserted and exercised — "a totally dif-
ferent question, although a decision of it, afiirming the exclu-
sive right, might carry with it, as a consequence, the right
to protect such fisheries by a reasonable exercise of national
power anywhere upon tlie seas where such exercise might be
necessary." It was to this second question that the real con-
troversy related, " and the first was intended to be included
only so far as it might have a bearing upon the second." An
effort had, continued Mr. Carter, been made in the British Case
to make it appear that the United States had shifted their
ground, first by maintaining that Behring Sea was mare clau-
sum, next by claiming an exclusive jurisdiction of one hundred
miles around the Pribilof Islands, and lastly, by abandoning
both those positions and asserting a property interest in the
seals. But he contended tbat the "first attitude" of the gov-
ernment in relation to the matter, when it sought the coopera-
tion of other powers in the protection of the fur seal, in order
to avoid the exercise of the exceptional marine jurisdiction
Digitized by LjOOQIC
FUB SEAL ARBITRATION. 831
which the peculiar nature of the property might justify, was
<<the suggestion of a property interest." Mr. Blaine also
'^ improved the first occasion upon which he was called upon
to refer to the subject to place the claims of the United States
distinctly on the ground of a property interest, which could not
be interfered with by other nations upon the high seas by
practices which in themselves were essentially immoral and
contrary to the law of nature." While Mr. Blaine had, in bis
own opinion, established his contention that Russia's claim
in 1821, of exceptional authority over the seas, was never
abandoned by her, but was acquiesced in by Great Britain, as
to the coast north of the sixtieth parallel of north latitude,
yet counsel preferred, said Mr. Carter, to submit to the tribu-
nal " that liussia had for nearly a century before the cession
of Alaska established and maintained a valuable industry
ux)on the Pribilof Islands, founded upon a clear and indispu-
table property interest in the fur seals ; " that the United States
bad since the cession *< carefully maintained and cherished that
industry," and that the destruction of it might be prevented
*^by the reasonable exercise of necessary force on the high
seas."
The third division of the argument of the
auMtimui of Prop- United States related to 'Hhe property of the
<m. United States in the Alaskan seal herd and
their right to protect their sealing interests and industry."
The first branch of this subject — the "property of the United
States in the Alaskan seal herd" — was treated by Mr. Carter,
who began by distinguishing between the question of a prop-
erty interest in the seals themselves and the question of a
property interest in the industry long established on the Pribi-
lof Islands of maintaining and propagating the seal herd, and
appropriating the increase for the purposes of commerce and
profit. If it were determined, said Mr. Carter, that the United
States had the property interest which they asserted only in
the industry established on the shore, it might, with some show
of reason, be insisted that if the industry were not actually
established they would have no right to forbid interference
with the seals in the open sea; but if it were determined that
the United States had the property interest which they
asserted in the seals themselves it would follow that they
would have the right at any time to take measures to establish
such an industry, and to forbid any interference with the seals
Digitized by LjOOQIC
832 INTERNATIONAL ARBITRATIONS.
which would tend to make its establishment impossible or
difficult.
The first proposition which he would endeavor to maintain
was, continued Mr. Carter, that the United States had, ''by
reason of the nature and habits of the seals and their owner-
ship of the breeding grounds to which the herds resort, and
irrespective of the established industry above mentioned, a
property interest in those herds as well while they are in the
high seas as upon the land." The position taken by Great
Britain was that the seals were res communes or res nuUius;
that they were not the subject of property, and consequently
might be pursued and captured on the high seas by the citi-
zens of any nation. The United States insisted, on the other
hand, that the terms /wcp naturce and domitce natures were notr
sufficiently precise for a legal classitication of animals in
respect of the right of property in them, and that the determi-
nation of the question depended upon the characteristics of
the animal.^ There was no principle of jurisprudence, said
Mr. Carter, to the effect that no wild animals were the subject
of property. On the contrary, in the Roman law, as well
expressed by Blackstone,* a distinct consideration was given
to the question what animals commonly designated as wild
were the subjects of property, and to what extent; and the
doctrines of the lioman law in this regard had been every-
where accepted. According to those doctrines, the essential
facts which rendered animals commonly designated wild the
subject of property, not only while in the actual custody of
their masters, but also when temporarily absent therefrom,
were, said Mr. Carter, "that the eare and industry of man
acting upon a natural disposition of the animals to return to a
place of wonted resort secures their voluntary and habitual
return to his custody and powers so as to enable him to deal
with them in a similar manner and to obtain from them similar
benefits as in the case of domestic animals." For the applica-
tion of this doctrine of property ^er indtistriam he contended
that the Alaskan fur seals furnished' atypical example. By
returning *'in obedience to the imperious and unchangeable
instincts of their nature to the same place, and voluntarily
*Pufendorf, Laws of Nature and of Nations, Lib. 4, chap. 6, sec. 5; 2
Kent's Comm. 348; Davies i\ PoweU, Willes, 46; Morgan v. Earl of Aber-
gavenny, 8 C. B. 768.
sOouim Book U. 391.
Digitized by LjOOQIC
FUR SEAL ARBITBATION. 833
sabjecting themselves to the power of man," they became '^the
subjects of ordinary husbandry, as much as sheep or any other
cattle." What difference could be suggested between the seals
and animals such as deer, bees, wild geese, and wild swans,
which appeared by the authorities to be universally regarded
as proi)erty so loog as they retained the animum revertendif
In either case the essential thing was that the art and industry
of man should bring about the useful result on which the law
makes its award of property, and to this end human art, care,
and industry were as necessary and as effective in the one case
as in the others. If the difficulty of identification should be
suggested, the answer was that there was no commingling of
the Alaskan and Russian seal herds; but were the case other-
wise, all the fur seals in the North Pacific were in the same
condition as those of Alaska, and were entitled to protection.
Mr. Carter next proceeded to inquire into
The mstltatioii of ^he causes of the institution of property and
^^' the principles upon which it stands. Prop-
erty, as defined by Savigny, was "a widening of individual
power." The right of the individual to extend his power over
the natural world rested on necessity, and, in the words of
Hlackstone,* " necessity begat property." And as the first
necessity of the social state — peace and order — required that
ownership should be enforced to the limited extent which sav-
age conditions required, so the second necessity of society — its
progress and advancement — that is to say, civilization —
demanded that individual effort should be encouraged by
offiering as its reward the exclusive ownership of everything
which it could produce. Hence the institution of property
embraced all tangible things, subject only to three excepting
conditions: 1. That they must have that utility which makes
them objects of human desire. 2. The supply must be limited.
3. They must be susceptible of exclusive appropriation. The
principles of natural law and the practice of nations accorded
with these conclusions. But, although the existence of human
society necessitated the institution of property, it did not, con-
tinued Mr. Carter, determine the form which the institution
assumed. Universal ownership might satisfy the absolute
necessities of a rude society, but in all advanced societies the
condition found was individual ownership. The moral ground
'Comm. Book II. 8.
:,(]27 53
Digitized by VjOOQ IC
834 INTERNATIONAL ARBITRATIONS.
on which private ownership was awarded was desert. " What-
ever a man produces by his labor or saves by the practice of
abstinence is justly reserved for his exclusive use and benetit."
But what is the extent of the dominion thos
Extent of Dominion given! Mr. Carter answered, (1) that no pos-
er Things. gesgor of property has an absolute title to it —
his title is coupled with a trust for the benefit of mankind;
(2) that things themselves are not given him, but only the usu-
fruct or increase — he holds the thing in trust for the present
and future generations of man. The idea of the gift in com-
mon is reconciled, argued Mr. Carter, with that of exclusive
possession by the instrumentality of commerce, which springs
into existence with the beginnings of civilization as a part of
the order of nature. Every nation, so far as it possesses more
than enough of the fruits of the earth to satisfy its own needs,
is a trustee of the surplus for the benefit of those in other
parts of the world who need them and are willing to give in
exchange for them the products of their own labor, and this
trust is obligatory. No nation, declared Mr. Carter, is per-
mitted to interdict all commerce with foreign nations. Nor is
the trust in question limited to a nation's surplus; it extends
to its means and capabilities of production. To destroy the
sources from which any human blessing flows is a crime. For
these reasons the only title to things that nature confers is the
iisufruct. The earth being designed for the permanent abode
of man, each generation is entitled only to its use, and the law
of nature forbids that any waste should be committed to the
disadvantage of the succeeding tenants. The obligation not
to invade the stock provided for the support of human life is
specially imposed on civilized societies, for the danger pro-
ceeds almost wholly from them. With the advance of civili-
zation, the increase of population, and the multiplication of
wants, a X)eril of overconsumption arises, against which the
great safeguard is the institution of private individttal property ^
which brings into play the powerful motive of self-interest,
stimulates the exertion of the faculties, and thus leads to a
prodigiously increased production of the fruits of the earth.
The conclusions thus sought to be established, Mr. Carter
summarized as follows:
'* First. The institution of property springs from and rests
upon two prime necessities of the human race:
" 1. The estahlishmeti t of peace and order, which is necessary
to the existence of any forni of society.
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 836
<< 2. The preservation and increase of the usefdl products of
the earth, in order to furnish an adequate supply for the con-
stantly increasing demands of civilized society.
" Second. These reasons, upon which the institution of prop-
erty is founded, require that every useful thing, the supply of
which is limited, and which is capable of ownership, should be
assigned to some legal and determinate owner.
"Third. The extent of the dominion which, by the law of
nature, is conferred upon particular nations over the things of
the earth, is limited in two ways:
"1. They are not made the absolute owners. Their title is
coupled with a trust for the benefit of mankind. The human
race is entitled to participate in the enjoyment.
" 2. As a corollary or part of the last foregoing proposition,
the things themselves are not given; but only the increase or
usufruct thereof."
Mr. Carter next proceeded to argue that
AppUoation of Prin- ^jj^^ principles, applied to the facts of seal
^^^ ^ * life, would establish a property interest on the
part of the United States in the Alaskan seal
herd. As to the seals being objects of desire and limited in
supply, no discussion, he said, was needed. The only differ-
ence that could arise was as to whether the animal was suscepti-
ble of ownership. In. the consideratiori of this question, the
conception of ownership must be distinguished from that of
possession. In the development of the institution of private
property, with the advance of civilization there arose a need
of protection to individual accumulations when beyond the
immediate possession of the producer; and m order to deter-
mine what was capable of ownership, it was necessary to con-
sider to what extent society would '^ aid the infirmity of indi-
vidual power by stamping the character of ownership upon
things which are out of the actual possession and away from
the presence of the owner." Tbe " general answer is obvious;
it will do this whenever social necessities require, and to the
extent to which they require it." This might be shown " by
pointing out what society, through the instrumentality of the
law, universally does." With regard to land and the fruits
thereof, actual possession is, said Mr. Carter, immaterial. So
all useful domestic animals are held to be subjects of exclusive
appropriation, however widely they mViy wander from their
masters, for the reason that from their nature and habits man
has such a control over them as enables him, if the law will
lend its aid, to breed them, and to increase and preserve them.
In the case of animals in every respect wild and yet useful,
Digitized by V^OOQ IC
836 INTERNATIONAL ARBITRATIONS.
sucb as sea fishes, wild ducks, and most other species of game,
the case is different, since man can not control them. But
when we come to animals which lie near the vague and indefi-
nite boundary that separates the wild from the tame, we find,
in such instances as those of bees, deer, pigeons, wild geese,
and swans, that the law regards them '* as subjects of property
so long as they possess the animum reverteiidiy evidenced by
their usual habit of returning to a particular place." The rea-
son is that each of these animals, *' habitually and voluntarily,
so far subjects itself to the control of man as to enable him,
by the practice of art and industry, to take the annual in-
crease for the supply of human wants without diminishing the
stock; in other words, to breed them^ and to make them the
subject of hunhandry; and, in the case of e^ch, unless a prop-
erty interest were awarded by the law — that is to say, unless
the law came to the aid of human infirmity and declared them
to be susceptible of ownership^ notwithstanding the want of
actual possession — they would cease to exist and be lost to the
world." These were, said Mr. Carter, the grounds on which
the municipal law declared the several descriptions of wild
animals in (question to be property; and this Wiis what was
intended by making the question of property dei)end upon the
existence of the animus revertendi.^
Of the kind of property just referred to, Mr. Carter main-
tained that the fur seal was '*a typical instance." In this
relation he said :
"Polygamous in its nature, compelled to breed upon the
land, and confined to that element for half the year, gentle and
confiding in disposition, nearly defenseless against attack, it
seems almost to implore the protection of man, and to offer to
him as a reward that superfluity of increase which is not needed
'111 his oral argument Mr. Carter said: **I may say that this animus
riT{'rtendi must be of itself wholly uuimportaDt. It is indeed a mere fic-
tion, anyway. * * * All we know of the intention of the wild animal
IS that exhibited by its habits; and indeed the law says that the intention
is to be inferred only from its habits. As long us the habit of returning
exists, the intention exists, and when the habit of roturnin^ erases then
the int>ention to return is held to cease. Of what eoiise<|uence, in itself
eonsidered, is this habit of returninu:, nnless it has some soeiiil uses and
purposes? * * " Can it be anything else than thaf. the exist^nee of
the habit enables man to treat the animal in th«^ same way as he treats
domestic animals and to make the animal HubKerve the same nsefiil pnblic
and social purposes which domestic animals subserve? Plainly that must
be the reason for it.''
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 837
for tlie continuance of the race. Its own habits go very far to
effect a separation of this superfluity, leaving little to be done
by man to make it complete. The selections for slaughter are
easily made without disturbance or injury to the herd. The
return of the herd to the same spot to submit to renewed drafts
is assured by the most imperious instincts and necessities of
the animal's nature. • • • All that is needed to make the
full extent of the blessing to mankind available is the exercise
on tlie one hand of care, self denial, and industry on the part
of man at the breeding places, and, on the other, exemption
from the destructive pursuit at sea. The first requisite is sup-
plied. A rich reward is offered for, and will certainly assure,
the exercise of art and industry upon the land. All that is
demanded from the law is that exemption from destructive
pursuit on the sea which the award of a property interest will
insure."
Under these circumstances could anything, said Mr. Carter,
be clearer as a moral, and under natural laws a legal, obliga-
tion than the duty of other nations to refrain from taking any
action which would prevent the United States, the owner of
the lands to which the seal herd resorts, from performing the
trust which it acknowledged and had discharged f To say that
the United States had no power to prevent sealing on the high
seas was to beg the question. If they had a property right in
the seals, the power to protect it could not be wanting. But,
even conceding for the sake of the argument that the United
States had no power to protect and punish, would it be asserted
that this constituted a right to capture seals at sea, and thus
destroy one of the gifts of nn ture to man f
It might be asked, continued Mr'. Carter, whether the United
States asserted a legal right of property in any individual seal
that might be found in the sea on which an action for trespass
might be maintained in a municipal tribunal to recover damnges
from the slayer, or to recover the skin of the animal, if it should
anywhere be found. The ITnited States, he answered, did not
insist upon this extreme point, because it was not necessary to
insist upon it. Summing up this branch of the discussion, Mr.
Carter said :
"All that is needed for their [the United States'] purposes is
that their property interest in the herds should be so far recog-
nized as to justify a ])rohibition by them of any destructive pur-
suit of the animal calculated to injure the industry prosecuted
by them on the islands upon the b-isis of their property interest.
The conception of a property interest in the herd, as distinct
from a particular title to every seal composing the herd, is clear
Digitized by LjOOQIC
838 INTERNATIONAL ARBITRATIONS.
and intelligible; and a recognition of this would enable the
United States to adopt any reasonable measures for the pro-
tection of such interest.
" It is, of coarse, necessary to an actual appropriation of
property that the intent to appropriate should be evidenced by
some act. This requirement has been fully satisfied by the
United States. Every act by which that intent could be mani-
fested has been performed. They have, in every practicable
form, exercised art, industry, and self-denial' in protecting the
seals upon their soil and gathering the increase for the purposes
of commerce with the world, and they have in all practicable
forms, by their laws, by executive proclamation, and the exer-
cise of force upon the high seas, endeavored to prohibit all
invasions of their property interest.
" It is believed that of the three conditions hereinbefore men-
tioned as requisite to assert a right of property in the seal
herd, a compliance with the only one which can be the subject
of dehekteyUSLUieiy, susceptibility of appi^opriationy has now been
fully established ; and we need no longer delay the final con-
clusion that the United States, and they alone, having such a
control over the Alaskan seal herd as enables them by the
practice of art, industry, and self-denial to make the entire
product fully available for the wants of mankind without dimin-
ishing the stock, and having asserted this control and exercised
the requisite art, industry, and self-denial in order to accom-
^Refering in his oral argament to the subject of self-denial, Mr. Carter
said:
^'I wish to dwell a moment npon the merits of that particular feature
of self-denial. I have given in the printed argument a multitude of cita-
tions which illustrate the merit of this quality of abstinence as a foundation
for property. • * *
'^ Wherever you can find among men a disposition to forego immediate
enjoyment for the purpose of accomplishing a future good you find a prime
element of civilization, and it is that which society encourages, and worth-
ily encourages. ♦ * » That is what is exhibited upon these Pribilof
Islands. The United States, or its lessees, do not disturb these animals as
they come. They invite them to come. They devote the islands entirely
to their service. They cherish them while they are there. They protect
them against all enemies. They carefully encourage, so far as they can,
all the offices of reproduction, and at the appropriate time they select
from the superfluous males, that can not do any good to the herd and may,
under certain circumstances, do injury to it, the entire annual increase of
the animal and apply it to the purposes of mankind ; and without the exer-
cise of those qualities, as is perfectly plain, that herd would have been
swept from existence half a century ago, and the Pribilof Islands would
have been in the same condition in respect to seals as the Falkland Islands,
or the Mas-ii-Fuera Island, and other localities, once the seats of mighty
populations of these animals.
''It is upon these considerations that I base the position of the United
States, that it has a right of property in these seals.*'
Digitized by LjOOQIC
PUR B^AL ARBITRATION. 839
plish that greskt end, have, under principles everywhere recog-
nized, both in the law of nature and in the concurring municipal
jurisprudence of all civilized 8tates, a property interest in that
herd."^
The question of the " Eight of the United
Hr.Phelpi'iWntteiig^^^g ^ protect their sealing interests and
industry " was discussed by Mr. Phelps. The
case of the United States had, he said, thus far proceeded on
the ground of a national property in the seal herd itself. But,
admitting for the sake of the argument that no such right of
property existed, and that the seals were to be regarded, out-
side of territorial waters, as ferce naturae in the full sense of
the term, the question remained whether, upon this hypothesis,
'Hhe industry established and maintained by the United States
Government on the Pribilof Islands, in the taking of the seals
and the commerce that is based upon it, are open to be destroyed
at the pleasure of citizens of Canada by a method of pursuit
outside the ordinary line of territorial jurisdiction, which must
result in the extermination of the animals." Continuing, Mr.
Phelps said :
''The ground upon which the destruction of the seal is sought
to be justified, is that the open sea is iree, and that since this
slaughter takes place there, it is done in the exercise of an inde-
feasible right in the individuals engaged in it; that the nation
injured can not defend itself on the sea, and therefore upon the
circumstances of this case can not defend itself at all, let the
consequences be what they may.
'•The United States Government denies this proposition.
While conceding and interested to maintain the general rule
of the freedom of the sea, as established by modern usage and
consenstis of opinion, it asserts that the sea is free only for inno-
cent and inoffensive use, not injurious to the just interests of
any nation which borders upon it; that to the invasion of such
interests, for the purposes of private gain, it is not free; that
the right of self-defense on the part of a nation is a perfect
and paramount right to which all others are subordinate, and
^ In support of his propositions Mr. Carter cited Mackenzie's Stndies in
Roman Law, 6th ed., ch. II. 174; Posters Gains, 2ded., sec. 68; Savigny's
Possession in the Civil Law, compiled by Kelleher; Pnfendorf, Law of
Nature and Nations, lib. III., c. 1, sec. 3; Bracton, lib. II., c. 1; Bowyer,
Modern Civil Law, 72; Cooper's Justinian, lib. II., lit. 1, sees. 11-15; The
Case of Swans, 7 Coke, 15b; Child r. Greenhill, 3 Croke, 533; Keeble t;.
Hickeringill, 11 East. 574; Amory r. Flyn, 10 Johns. 102; EoflF v. Kilts, 15
Wend. 550; Baron Wilde, in Blades r. Iliggs, 12 C. B. N. S. 512; Earl of
Abergavenny v. Abergavenny, 8 C. B. 768; Davies r. Powell, Willes's Rep.
1737.
Digitized by LjOOQIC
840 INTERNATIONAL ARBITRATIONS.
which upon no admitted theory of international law has ever
been surrendered; that it extends to all the material interests
of a nation important to be defended; that in the time, the
place, the manner, and the extent of its execution it is limited
only by the actual necessity of tbe particular case; that it may,
therefore, be exercised upon the high sea as well as upon the
land, and even upon the territory of other and friendly nations,
provided only that the necessity for it plainly appears; and
that wherever an important and just national interest of any
description is put in peril for the sake of individual profit by
an act upon the high sea, even though such act would be other-
wise justifiable, the right of the individual must give way, and
the nation will be entitled to protect itself against the injury,
by whatever force may be reasonably necessary, according to
the usages established in analogous cases."
For the reason, said Mr. Phelps, that the sea
Befenie and Jurii- ^^^g j^ ^j^^jy times the theater of lawless vio-
® "^* leuce, the assumption of national dominion
over adjacent waters became necessary to self-protection, and
was therefore generally assented to. The mare liberum in
such waters gave way to marc clausum^ When commerce
became more extensive and better able to protect itself, '' the
modem conception of the freedom of the sea, first formally set
forth by Grotius, came gradually to be established." Even
then the contrary doctrine was maintained by Sir Matthew
Hale and Selden; and England and other maritime powers
surrendered their control over the seas slowly and reluctantly,
and only '* for the purposes of just, innocent, and mutually
profitable use," conducive to the general good, and not vio-
lative of the rights of others.^ Nor was the right of self-
defense on the sea ever surrendered by any nation. In using
the sea, nations must submit to first principles of law and pay
due regard to the rights of others; and these conditions "are
enforced by the injured party because they can be enforced in
no other way."' The right of self defense by a nation upon
the sea and the right of municipal jurisdiction over adjacent
seas were, said Mr. Phelps, totally distinct. The right of juris-
diction, though ''only a branch of the general right of self-
defense," must be limited by an ascertained or ascertainable
line, but tlie right of self-defense was "subject to no territo-
» Maine, Int. Law, 75-77.
'^ Story, J., The Marianna Flora, 11 Wheaton, 41 ; I Kent, ComTn. 27.
3 Vattel, sees. 17, 18, 19; Twiss, Int. Law, Part 1. nee. 12; Phillimore, Int.
Law, ch. 10, sees. Ill, 114 ; Hall, Int. Law, oh. 7, sec. 83.
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 841
rial line.^'^ In Church v. Hubbart,* the Supreme Court of the
United States unanimously held that "' the right of a nation to
seize vessels attempting an illicit trade is not confined to their
harbors or to the range of their batteries." Tlje same prin-
ciple was stated by Chief Justice Cockburn in Queen r. Keyn,'
referring to Church r. Ilubbart, which was also cited by Kent/
Wharton,'^ and Wheaton,'' and was followed in Hudson v,
Guestier.* In this relation Mr. Phelps animadverted on Dana's
criticism, in his notes to Wheaton, of the case of Church r.
Ilubbart." He also maintained that the right of self-defense
was as strong in the territorial jurisdiction of a friendly state
as on the high seas, referring in this relation to the case of
Amelia Island,® to the destruction of the steamer Caroline by
a British force within the waters of the United States in 1838,^**
and to the bombardment of Greytown." "A still more strik-
ing illustration," said Mr. Phelps, "of the exercise of the
national right of self defense upon the high seas, at the expense
of innocent commerce and to the entire subordination of pri-
vate rights, which, except for the consequences to national
interests, would have been unquestionable, is found in the
British Or<lers in Council in the year 1809, prohibiting neutral
commerce of every kind with ports which the Emperor of
France had declared to be closed against British trade. The
eflPect of these orders was to arrest upon the sea the lawful
trade of neutrals, not with blockaded ports, nor even belliger-
ent ports not blockaded, but with neutral ports. Yet the
validity of these orders upon the principles of international
law, severe as their consequences were, was affirmed by the
great judicial authority of Lord Stowell, then Sir William
Scott, in several cases of capture that came before him in
admiralty, upon the ground that they were necessary me-as-
» Vattel, 128, Bee. 289; 1 Kent, Comm. 29.
«2Cranoh,287.
3 2 Law Rep. 214.
n Comm. 31.
«* Int. Law Dig. 113.
« Int. Law, 6th ed.,235.
T6Cranch.281.
"Mr. Phelps also referred to the cases of the schooner Betsey, Mason's
Rep. 354, and Manchester r. Massachusetts, 139 U. S. 240.
» Wharton's Int. Law Dig. 1. 50.
'oPhiUimore, Int. Law, vol. 1, Sec. CCXVI; Hall, Int. Law, p. 267. par. 34.
" 1 Wharton's Int. Law Dig. 226, 229, 230, 232, 233.
Digitized by LjOOQIC
842 INTERNATIONAL ARBITRATtONS.
ures of self defense to which all private rights must give way.'^^
Lord Stoweirs judgments in these cases had never, Mr. Phelps
declared, " been criticised or disapproved by any court of jus-
tice, nor by any writer of repute on international law." He
also referred, as another very forcible illustration of the prin-
ciple for which he contended, to the exclusive right once
asserted by Great Britain to the fisheries off the coasts of
Newfoundland and Nova Scotia, saying that it was " contended
by Great Britain and conceded by the United States that all
those fisheries, both within and without the line of territorial
jurisdiction, were, x)revious to the Eevolutionary war, the
exclusive property of Great Britain, as an appurtenant to its
territory." Mr. Phelps further argued that the right of self-
defense existed in peace as clearly as in war. This was shown
by the treatment accorded the pirat-e. Nor was there, he said,
any question that a nation whose laws prohibit slavery may
capture on the high seas any vessel laden with slaves intended
to be landed on her coast, or any vessel sailing for the purpose
of prosecuting the slave trade on her shores. Nor was the
sea free to any vessel not carrying the flag of some country,
and shown by its papers to be entitled to carry the flag it
bears. So a vessel guilty of an infraction of revenue or other
law in territorial waters may be pursued and captured beyond
them. On this principle rested the British act* restricting
the passage of a vessel on the high seas, when approaching
Great Britain from an infected port, as well as the restraints
put on neutrals in time of war.
On the principle of self-defense, said Mr.
Right of Viiitation Phelps, was based the right of visitation and
an earo^ in g^g^p^i^ ^f private vessels of one nationality on
Anerted. ^^® ^*S^ ^^^^ ^Y *^^ armed ships of any other
nationality. It had been said that this right
was confined to time of war. This assertion proceeded upon
the ground that only in time of war could the necessity for it
arise. But no one, declared Mr. Phelps, had " ever claimed
that the right should be denied in time of peace if an equal
necessity for it exists;" and when such necessity had been
regarded as existing, the right had been asserted. Prior to the
war of 1812, Great Britain "claimed the right in time of peace
» The SuccesH, 1 Dod. 133 ; The Fox, 1 Edwards, 314 ; The Snipe, 1 Edwards,
382.
« 6 Geo. IV. c. 78.
Digitized by LjOOQIC
FDR SEAL ARBITRATION. 843
to search American ships on the high seas for British subjects
serving as seamen.'' This claim, said Mr.
Britiih Qaim of im- p^elps, had *^been disused, but never aban-
doned;" the United States objected to it od
the ground "that it was founded upon no just necessity or
propriety," but, "had it been a measure in any reasonable
sense necessary to self-defense on the part of Great Britain,
its claim would have rested on a very different foundation,
and would have been supported by the analogy of all similar
cases." Mr. Phelps further declared that the "right of search
is exercised without question as against private vessels sus-
pected of being engaged in the slave trade." Lord Aberdeen,
in 1841, claimed the right of visitation of vessels on the high
seas in time of peace, far enough at least to ascertain their
nationality.^ "Mr. Webster," said Mr. Phelps, "disputes this
right, but has to admit that it does exist when specially
necessary."* The subordination of private right to national
necessity had been well stated by Manning,^ and had been
laid down by other writers.*
As examples of cases, exceptional in char-
Ertraterritoriai Op- acter, where necessity had dictated acts of
eratioii of Stotutat gelf-defense, Mr. Phelps also cited various stat-
and Begnlations. ,,.,.,
utes and regulations, which were referred to
in the Case of the United States, for the protection of various
fisheries outside of the ordinary territorial waters. He said:
" An effort is made in the British Counter Case to din^inish
the force of the various statutes, regulations, and decrees above
cited, by the suggestions that they only take effect within the
municipal jurisdiction of the countries where they are promul-
gated, and upon the citizens of those countries outside the
territorial limits of such jurisdiction. In their strictly legal
character as statutes, this is true. * * * But the distinc-
tion has already been pointed out, which attends the operation
of such enactments for such purposes. Within the territory
where they prevail, and upon its subjects, they are binding as
statutes, whether reasonable and necessary or not. Without,
they become defensive regulations, which if they are reason-
able and necessary for the defense of a national interest or
' Br. and For. State Papers.
^ Webater^s Works, VI. 336.
3 Int. Law, ch. 3, p. 252, 263.
^Azuni, Part II. ch. III. art. 2, sec. 4, p. 178; Foley, Moral Philoso-
phy, Book 6, c. 12; Grotins, III. v. 1, sec. 5; Wheaton, Law of Nations,
128.
Digitized by LjOOQIC
844 INTERNATIONAL ARBITRATIONS.
right, will be submitted to by other nations, and if not, may be
enforced by the government at its discretion.
'* Otherwise their effect would be to exclude the citizens of
the country in which they are enacted from a use of the marine
products it is seeking to defend, which is left open to the
inhabitants of all other countries, thus leaving those products
to be destroyed, but excluding their own people from sharing
in the profits to be made out of the destruction. Will it be
contended that such is the result that is either contemplated
or allowed to take place by the governments which have found
it necessary to adopt such restrictions?
"It would be much more to the purpose if it could be shown
either that any nation had ever protested against or challenged
the validity of any of these regulations outside the territorial
line, or that any individual had ever been permitted to trans-
gress them there with impunity."
The clam of the Unite*! States of a right to
u 'ted^ut ^ci^ protect the senls in Behring Sea presented,
Kaid Mr. Phelps, *^ nothing new, except the
particular circumstiinces of the application of an universal and
necessary principle to an exigency that has not arisen in this
precise form before.'' But the advance of the law of nations
must be by the process of analogy, in the application of funda-
mental principles to new cases as they arise. And if it were
I>ossible to regard the present case as in any respect outside
of rules previously established, its determination ''would then
be remitted to those broader considerations of moral right and
justice which constitute the foundation i»f international law.'^^
The argument on questions of right having
FuTther Argents ^^^^ completed, Mr. Caiter discussed the sub-
for the United States. . i .
ject of concurrent regulations, contending that
the tribunal should make a regulation prohibiting all sealing
at sea, except by the native tribes of Indians on the northwest
coast of America for the purposes of food and clothing in the
manner in which they were originally accustomed to prose-
cute it.
' In an appendix Mr. Phelps cited Hannani i'. Mockett, 2 Bam. & Cress.
943; Keel)le r. Hickeringill, Holt's Rep. 17; Church r. Hubbart, 2 Cranch,
187; Opinion of Johnson, J., Rose r. Himely, 4 Cranch, 241; Azuni, Part
I. c. II. art. 7, sec. 4, p. 185; Plocqne, De la Mer et de la Navigation Mari-
time, ch. 1, ])p. 6-8; Pradier-Foder<5, Trait6 de Droit Int. II. sec. 633; La
Tour, De la Mer Territoriale, 230; Calvo, Le Droit Int. sec. 244; Heff-
ter, Int. Law, sees. 74-75; Bluntschli, Int. Law, Book IV. sees. 322, 342;
Carazza Amari, Int. Law, sec. 2, ch. 7, p. 60; Webster's Works, VI. 261;
Ilardcastle's Life of Lonl Campbell, II. 118; Br. and For. State Pap., XXX.
196; Documents relating to the negotiation of the Treaty of Ghent.
Digitized by VjOOQ IC
PUE SEAL ARBITRATION. 845
The question of damages, under Article VII. of the treaty
of arbitration and Article V. of the modm vivendi, was dis-
cussed by Mr. Blodgett.
Mr. Goudert presented an elaborate summary of the evi-
dence, supporting, on grounds of fa'ct, the cont.entions advanced
by the United States on the various questions at issue^
The British Argument, after adverting to
Printed Argament ^i^^ questions of jurisdiction in Behring Sea,
ain (jedared that, '' shorn of all support of inter-
national law and of justification fr im the usage of nations, the
claim of the United States to possess and protect the seals in
the high sea takes, at last, its final form — as a claim of prop-
erty." • The British Argument then continued:.
''Yet not wholly is it [the claim of the United States] rested
on property. The greatest jurists of the world-have dealt with
'property' and 'possession' in such fashion, have defined their
meanings with suclk precision of thought and language, that
it is not surprising the United States should shrink from the
hopeless task of attempting to formulate a new species of
ownership. And so, at last, driven from all the standpoints of
admitted and long-known rights, the argument of the United
States takes refuge in a claim for protection where there is no
property, under circumstances so novel that its supporters con-
fess witli caLdor tliat it can be rested on no precedent, but that
a precedent ought to be established by international law to
meet the exigencies of the case.
"To all this shadowy claim the government of the Queen
submit but one answer— the law.
"It is sought to support this strange right by reason of the
industry of the United States citizens and the benefit which
that industry is said to confer on the markets of the world
But the rights of industry and the benefits of others interested
therein are already cared for by the law.
"It is said that the United States has a right to the seals as
to the products of the soil. The law already sufficiently pro-
tects the products of the soil.
"Animals are not products of the soil. The birds building
in the trees, the rabbits burrowing in the ground, are but wild
animals to the law. Yet in respect of them the law has already
defined the extent of the rights of property, and has protected
these rights.
"Again, the claim is to the increase of the seal as to the
sheep farmer is given the increase of his flock. The law deals
with the increase of the flock ; and the increase of wild animals
it deals with, too.
"'An industry the property of the nation on whose shores it
is carried on' — such is the form in which the United States
claim is presented by one of its ablest.advocates, a form which
Digitized by V^OOQ IC
846 INTERNATIONAL ABBITRATIONa
evades the most elementary questions as to the foundation, the
nature, and the extent of the rights so claimed.
"The whole case, and every part of it, and every form in
which ingenuity can frame it, are covered b^^ the law. And to
this law Her Majesty's government most confidently appeal.
"And there is another law to which that government appeal
with equal confidence — the law on which depends the freedom
of the sea.
" What is the freedom of the sea?
"The right to come and go upon the high sea without let or
hindrance, and to take therefrom at will and pleasure the prod-
uce of the sea. It is the right which the United States and
Great Britain endeavored, and endeavored successfully, to
maintain against the claim of liussia seventy years ago. It is
the right in defense of which, against excessive claims of other
nations, the arguments of the United States have in former
times held so prominent a place.
"And what is the claim to protect the seal in the high sea?
It is, as of right and for all time, to let and hinder the vessels
of all nations in their pursuit of seals upon the high sea; to
forbid them entrance to those vast seas which the United
States have included in the denomination of the ' waters of
Alaska;' to take from these vessels the seals they have law-
fully obtained; and to search, seize, and condemn the vessels
and the crews, or with show of force to send them back to the
ports from which they set out.
"And so, according to the contention of the United States,
* protection of an industry' at sea justifies those acts of high
authority which by the law of nations are allowed only to
belligerents, or against pirates with whom no nation is at
peace.
" From giving its high sanction to these views this tribunal
may well shrink; and it is with no mere idle use of high-
sounding phrase that Great Britain once more appears to
vindicate the freedom of the sea."
Proceeding with the question whether the
^**™^g^^^* ^ United States had any right of protection or of
property in the fur seals outside of territorial
waters, the British Argument maintained, in the first place,
that the fur seals were animals feron naturw. In support of
this contention the Argument recited that " the fur seal is not
only a marine animal, but pelagic in habit, spending most of
its time at large in the open sea; " that it "is migratory in its
habit, and in the course of the year traverses a great part of the
North Pacific Ocean;" that its food "is entirely derived from
the sea ; " that such an animal can not be said to have a " home"
only when on its breeding area, the home of any species being
the area within which it habitually lives; that in the summer
months most of the seals go north for breeding purposes, but
Digitized by V^OOQlC
FUE SEAL ARBITRATION. 847
that no special bodies of seals could be said "to resort en-
tirely and invariably ^^ to one or other of the various groups of
islands frequented by them ; that the term "Alaskan herd" was
"simply a fanciful creation," applicable, if at all, only when
the seals were on the islands, and then only to each rookery
separately, or to bodies of seals driven together; that "though
fur seals are to a certain degree controllable when on land,
this results from their helplessness while there, and such con-
trol has nothing to do with domestication;" that it is "im-
practicable so to control the seals as to prevent them from going
to the sea whenever they desire to do so, and, were it possible
to do so, the seals would perish;" that on the Pribilof Islands
they "are left entirely to their natural inclinations as to leav-
ing and returning," thus retaining there " all their character-
istics of animals/er^c naturo!;^^ that they "are unused to, and
incapable of, any but slow and labored movement on land, and
are, therefore, easily surrounded and driven to the killing
grounds for slaughter ; " that they "dread the approach of man,
and endeavor to flee from him, even when collected in great num-
bers ashore, though it is probable that, when their breeding-
places were first visited, ignorance caused them to be fearless ; '•
that the " result of this contact with man has, therefore, been
the opposite of that implied by domestication ;" and that dur-
ing "the greater jiart of the year the seals are wholly removed
from the cognizance of persons on the Pribilof Islands, and
till very lately their winter haunts were not even known."
"All ideas attached to the word 'domestic' are," said the
British Argument, " therefore wanting in the case of fur seals.
Man does not provide their food or in any way assist them to
obtain it; his care is at most of a negative kind, and consists
in the avoidance of acts which would drive them wholly away
from the breeding islands. They would not suffer, but, on the
contrary, would profit, by his departure from these islands.
!N'o scientific authority can be adduced in support of the con-
tention that the seal is other than a wild animal; and it is be-
lieved that no opinion from any source which is recognized as
entitled to weight can be quoted to such an effect."
Having thus described the nature of the ftir
^^i^^P^Jti^ seal, the British Argument maintained that
' the common law, in force both in America and
in England, " recognized no property in animals ferce natu-
rae until possession. Property, while the animals are alive,
remains only so long as this possession lasts; when this
Digitized by LjOOQIC
848 INTERNATIONAL ARBITRATIONS.
possession is lost the property is lost. The law considers that
they are then wild animals at large, and that the rights of cap-
ture revert to all alike. The owner of land has what is some-
times called a qualified property in wiUl animals on the land,
but this is no more than the exclusive right to take possession
while they are there, and when they leave the land that exclu-
sive right is gone." ^ " The law,'' continued the British Argu-
ment, " does not give to the owners of land this qualified prop-
erty as to wild animals on their land by reason of any care, or
feeding, of the wild animals, or management which falls short
of reducing them into x)ossession ; it is rested solely on the fact
of the ownership of the land, and the fact that any other per-
son coming on the land to take the animal is a trespasser. The
ex(!lusive right to take possession may be violated ; but as the
right comes to an end when the animals leave the laud in
respect of which the right arises, such violation can occur only
while the animals are on the land, as by a trespasser taking
possession of them."
As to the lawfulness of taking fur seals on
The LawAilnew of the high seas, the British Argument said:
Taking Seals on
the High Seaa. '* With reference to the cjises put by Mr.
Phelps and Mr. Blaine of killing fish by scat-
tering poison in the sea, destroying them by dynamite, and
pUicing dangerous obstructions and derelicts in the sea to
injure commerce or fisheries, it is denied that-they present any
analogy to the case now under discussion, which is simply that
of fishing by lawful methods.
''All persons alike possess the right of fishing on the high
sea, and such fishing, even though it diminish the catch of
another, is in all respects analogous to the case of rival
traders. • • •
*' The exercise of the right to catch the seals on the high
sea is a rival trade to the exercise of the right to catch the
seals on land. This latter right is of the same character as
the former: It only differs by reason of its being exclusive
while the seals are on the land.
" No act of malice towards the United States or the lessees
of the Pribilofs has been, or could be, alleged against the
fishermen of (ireat Britain whose vessels have been seized. The
seals are taken by them on tlic high sea for their profit, and in
the exercise of their legal rights of fishing possessed by them
ill common with all mankind.
" The case therefore falls witiiiu the general principle, that
where loss results to one by the lawful exercise of a right im)s-
sessed by another, no rei)aration can be obtained by law.-'
' Pollock and Wright, Possessiou in the Common Law, 231.
Digitized by V^OOQ IC
' PUB SEAL ARBITRATION. 849
Nor was the contention of the United States, said the British
Argament, in any way advanced by an appeal to international
law. It was incorrect to say that tbe best international law
had arisen from precedents that had been established when the
first occasion for them arose, undeterred by the discussion of
abstract and inadequte rules. Law so made would not be
international law at all. The law of nations is based on the
consent of nations, and is gathered from their practice and
the authority of writers.* A tribunal professing to administer
international law could not create novel principles antagonistic
to established legal principles, nor could the consent of nations
be presumed in favor of such novel principles.
**The United States, assuming that their
Qa6fti<m of Piotec- elaim to property fails, endeavor," said the
ti^ i^art from gj.||j|gjj Argument, "to establish an independ-
ent right to protect the seals on the high
seas. This is a contention wholly devoid of legal authority."
The right to protect depended on the existence of property.
The exclusive right, ratione solij to take possession of animals
on land "does not carry with it a right to protect such ani-
mals when they leave the land. An abstract right of protec-
tion (such as is here claimed), distinct from a right of property
in the animal sought to be protected, can not exist. It would
involve the right to make the protection respected, and there-
fore an interference with the equality and independence of
other nations upon the high seas; an interference which must
take the concrete form of a right of visit and search. That
such rights do not generally exist in time of peace, except in
the case of piracy, is too elementary a proposition to need
demonstration. • • • Nor is the case altered by the fact
that the claim to protect is based on the assumption that the
fish may be proceeding to a place within the dominions where
an exclusive right to take possession would arise. That no
rights exist till this exclusive right has come into being is again
too elementary a proposition to need demonstration." ^
The views set forth in the written arguments
Anniment ^^ counsel were elaborated in their oral argu-
ments, and in order farther to elucidate the
contentions of the two governments, I will present certain
• Kent, Int. Law, 2d ed., by Abdy. 4; Triquet r. Bath, 3 Burr. 1478
1J81.
- Stepben's Blackstone, 7tb ed. II. 19.
5G27 54
Digitized by LjOOQIC
850 INTERNATIONAL ARBITRATIONS.
points and passages in the oral argument of Mr. Carter for the
United States, and of Sir Charles Kassell for Great Britain.
In the course of his discussion of property
^^^^^^?*^ T" in animals, Mr. Carter, alter maintaining that,
where wild animals are by the art and industry
of man made to return to a particular place to such an extent
that the possessor of the place can deal with them as if they
were domestic animals, his property in them continues, no
matter how far away they may go, so long as they have the
intention of returning, said:
" I may state another proposition fully substantiated by these
authorities. It is scarcely another proposition indeed. It is
almost the same; but the language is somewhat different, and
I maybe justified, therefore, in stating it in a different form:
That wherever man is capable of establishing a husbandry in
respect to an animal commonly designated as ^wild,' such a
husbandry as is established in reference to domestic animals,
so that he can take the increase of the animal and devote it to
the public benefit by furnishing it to the markets of the world;
in such cases the animal, although commonly designated as
wild, is the subject of property and remains the property of
that person as long as the animal is in the habit of volun-
tarily subjecting itself to the custody and control of that
person. • • •
"The President. Mr. Carter, what would be your legal
definition of the word ' husbandry' as you just used it! Would
it be merely the fact of gathering the increase of an animal!
"Mr. Carter. Yes.
"The President. That is enough to constitute husbandry
in your view!
"Mr. Carter. Taking an animal, caring for it, preserving
the stock, and taking the increase for the markets of the com-
munity— that is husbandry, I suppose; the same sort of hus-
bandry that is exercised in respect to sheep, horses, cattle, or
any other of our domestic animals.
" The President. I better understand your meaning by your
de&nition than by your simile or your comparison.
"Mr. Carter. Well, it seems to me that the definition is
good; and it seems to me that the analogies of the animals to
which I allude are appropriate. • • •
" Take the case of wild swans and geese. They are generally
held not to be the subject of property. The law, however, takes
notice of the exception where those animals have been so far
reclaimed that they will continually and habitually resort
to a particular place. There the law says they are prop-
erty. • * • Why does the law say that! Because there
is a public utility which may be subserved by that. If you
fiUow the possessor of the place to which they resort to have
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 851
the right of property in them he will devote himself to the
business of reclaiming those animals, and consequently society
will be supplied with those animals, whereas otherwise it will
not. Property is the price which society must pay for the ben-
efit which is thus gained from those animals. They are the
product of the art, and the industry, and the labor which is
expended upon them; and being that product, the benefit of it
is properly awarded to the person who exhibits that art and
industry.
** The President. Do you mean to say that the seals reverted
to the Pribilof Islands on account of the industry carried on
there?
"Mr. Carter. Yes.
"The President. Perhaps you will come to that later in
your argument.
"Mr. Carter. 1 hope my argument will not be anticipated.
I shall not fail to comx)lete the analogy. I am now looking to
these other instances. Take deer. Why is it that as long as
deer are kept for the purposes of sport the law will not regard
them as property? Because as long as they are kept for such
purposes they subserve no useful social purpose; but the mo-
ment a man undertakes to reclaim deer, to take care of them,
to feed them, to treat them as he does domestic animals and to
supply the markets of society with venison from them, he is
awarded the rights of property in them. • • •
"Take the case of bees. Nothing can be more wild in its
nature than a bee. That nature is not in the slightest degree
changed when a hive is put inside of a box on the premises of
a private individual ; and that is all it is necessary to do. But
what is tbe consequence of that? It is that a supply of honey
may be taken from that animal, and a much greater supply
than if you were driven to hunt through the woods to find hives.
The consequence is that when that hive swarms, the swarm can
be taken and put in another box and thus the number of swarms
be multiplied indefinitely and the product of honey indefinitely
increased. That is a great service to society. It furnishes it
with an article of great utility which otherwise it would not
have, or would not have in anything like the same degree of
abundance; and therefore the art and industry, simple though
it be, which is expended upon those particular bees, is rewarded
by assigning to the possession of the place where the hives are
a right of property in the bees. • * •
- ,. ^ ^« "Now, let me see whether those doctrines
^PP!****r,?:^ apply to thecaseofthefur seal or not. • • •
tones to the Fur j^^ ^^^ ^^^^ ^^^^^^ ^^ ^^^^^^ ^ ^^^ Pribilof
Islands voluntarily, and there submits himself
absolutely to the control, custody, and disix)sition of the owner
of the place. • * • In the next place, after migrating from
that place he returns to it in obedience to the most imperious
of allanimal instincts. Nothing can stop him unless heisdriven
away. • ♦ ♦ What is the social utility to subserve which
Digitized by LjOOQIC
852 INTERNATIONAL ARBITKATIONS.
this habit oflfers an opportunity! Man is enabled by means of
it to practice a species of husbandry. He can take the annual
increase of that animal without in any respect diminishing its
stock. In other words, he can deal with the animal precisely
as he does with domestic animals and precisely as if the animal
were domestic. Tlierefore we find here all the elements, all the
foundations, upon which, as Blackstone calls it, property per
industria m stands. You may ask what care, what industry man
practices in reference to the seal. * • • In the first place
the United States, or liussia before the United States, carried
thither to these islands several hundred people, and instituted
a guard over those islands and preserved the seals and pro-
tected them against all other dangers except that of being
slaughtered in the manner which I have described — a very great
labor and a great deal of expense. The seals are freely invited
to come to those islands. No obstacle is thrown in their way.
Their annual return is cherished in every way in which it can
be cherished. Tery great expense is undergone in extending
this sort of protection over them. In the next place, and what
is particularly im[)ortant, the United States, and Russia before
the United States, practiced a self-denial, an abstinence, in
reference to that animal. They did not club him the moment
he landed and apply him to their purposes indiscriminately,
male and female. They did not take one in this way. They
carefully avoided it. They practiced a self-denial. And that
self-denial, and the care and industry in other respects which
I have mentioned, lead those seals to come to those islands year
after year, where they thus submit themselves to human power
so <as to enable the whole benefit of the animal to be applied to
the uses of man. Let me ask what, would have been the case
if this care and industry had not been applied! Suppose the
art and industry of the United States and its self-denial had
not been exerted, what would have been the result! We have
only to look to the fate of the seal in otlier quarters of the globe
where no ^uch care was exerted, to learn what would have
been the result. They would have been exterminated a hun-
dred years ago. * » *
''Therefore, I respectfully submit to you that the present
existence of that herd on those islands — the life of every one
of those seals, be they a thousand, or be they five millions — ^is
the direct product of the care, industry, labor, and expense of
the United States; and they would not be there except for
that care and industry." • ♦ •
The idea that the title to property is not
. . _. . absolute, but is coupled with a trust tor the
miiuoii ov6r xiULiigfs. ''
benefit of mankind — an idea expressed in his
written argument — was elaborated by Mr. Carter in his oral
argument. As illustrations of his meaning, he gave several
examples showing, as he maintained, the obligatory character
Digitized by LjOOQIC
FUR SKAL ARBITRATION. 853
of the trust for maukind and the duty to work it out through
the instrumentality of commerce. These illustrations were as
follows :
"Let me suppose au article like India rubber, which has
became a supreme necessity to the human race all over the
world. It is produced in very few places. It is possible that
the nation which has dominion over those places might seek to
exclude it from the commerce of the world. It might go so
far as to attenipt to destroy the pLantations which produce the
tree from which the gum is extracted. Would such an attempt
give any right to any other nation! Most certainly it would!
It would give a right to other nations to interfere and take
possession, if necessary, of the legions in which that article
so important, so necessary to mankind, was alone grown, in
order that they might supi>ly themselves. * ♦ *
''The President. Do you mean a legal right!
" Mr. Carter. I mean a perfect legal right in international
law. ♦ • • In international law we have a whole chapter
in regard to the instances in which one nation may justly inter-
fere in the affairs of another. • • • Take one instance,
which is generally spoken of as the means adopted to * preserve
the balance of power.' When one nation in Europe seeks to so
extend itself as to threaten what has been styled the balance
of power, this has from an early period in European history
been deemed a cause of interference by other nations, and, if
necessary, of war. • • ♦
"The President. It is one of the forms of self-defense.
" Mr. Carter. • * • The coffee of Central America and
Arabia is not the exclusive property of those two nations; the
tea of China, the rubber of South America, are not the exclu-
sive property of those nations where it is grown; they are, so
far as not needed by the nations which enjoy the possession,
the common property of mankind; and if the nations which
have the custody of them withdraw them, they are failing in
their trust, and other nations have a right to interfere and
secure their share.
"Lord Hannen. May they sell them at their own price,
although it may be a very high price?
"Mr. Carter. Yes, until they come to put a price upon
them which amounts to a refusal to sell them — when they
arrogate to themselves the exclusive benefits of blessings
which were intended for all, then you can interfere. • • •
Upon what other ground can we defend the seizures by the
European powers of the territories of the New World — the
great continents of North and South America! ♦ • ♦ They
never asked permission; they took them forcibly and against
the will of the natives. * * * That policy has been pur-
sued by civilized nations for centuries. Is it robbery, or is it
defensible? I assert that it is not robbery, because those bar<
barous and uncivilized peoples did not apply the bounties they
Digitized by LjOOQIC
854 INTERNATIONAL ARBITRATIONS.
possessed to the purposes for which nature and nature's God
intended them; they were not faithful to the trust which was
imposed upon them; they were incapable of discharging to
mankind the duties which the possessors of such blessings
ought to discharge. ♦ • What did England do in the
case of China in 1840, for instance ? She made war upon China
and subdued her. Why? The real cause of war is not always
correctly stated in the pretext given for it, and in that instance
the pretext was, 1 believe, some discourtesy which had been
shown to individuals, some maltreatment of British officials.
But if we look into the history of the matter, we find that the
dispute began when China closed her ])orts, and that it termi-
nated with the treaty by which she bound herself to keep them
opeo. This war was defensible; I do not put it as an offense
on the part of Great Britain. ♦ • ♦
"Take the case of Peruvian bark. This product is com-
monly regarded as absolutely necessary in the economy of
society; it is a necessity for the cure of certain diseases; it is
a specific for them; they will rage unrestrained unless you
have Peruvian bark. Now, suppose the countries where it is
grown should say that for some reason or other they will not
carry on commerce; and not only that, but that they propose
to devastate the plantations where the bark is cultivated — ^is
mankind going to permit that? * • ♦ Why is Great Brit-
ain in Egypt maintaining a control over the destiny of that
nation? What reason has she for asserting a dominion over
these poor Egyptians? Is it because they are weak and
defenseless? Is that the only reason? No; I suppose that
those who have the destinies of Great Britain in their charge
can make out a better case than that. Egypt is the pathway
of a mighty commerce; it is necessary that that commerce
should be free and unrestrained — that great avenue and high-
way of traffic must be made to yield the utmost benefit of
which it is capable. If the government of Egypt is not
capable of making it yield its utmost — if that government is
incapable of doing so, other nations have a right to interfere
and see that the trust is performed.
"The President. 1 am afraid that you take a very high
point of view, Mr. Carter, because you seem to anticipate the
judgments of history. I can not say more at present.
"Mr. Carter. Not a higher view than is sustained by the
practice of mankind for three hundred years." • • ♦
Mr. Carter drew a distinction between herds
Difference Between of fur seals and polygamous domestic animals,
wnd ^midB ^^cih as horses, cattle, or fowls, on the ground
that the latter can be produced almost any-
where and are capable of indefinite increase, while in the case
of the seals the places wheie they could be produced are so
few and the demand so far exceeds the supply that the great
Digitized by LjOOQIC
FUlt SEAL ARBITRATION. 855
object is "not only to preserve the present normal number,
but to increase it.'' To do this there was, he declared, "no way
except by saving all the females." Having drawn this dis-
tinction, he then proceeded to speak of " the difference between
the seals and wild animals, such as birds of the air, wild ducks,
fishes of the sea, mackerel, herring, and all those Ushes which
constitute food for man and upon which he makes prodigious
attacks." In respect of such animals man can not, he said,
confine himself to the annual increase; he can not separate it
from the stock nor tell male from female. Hence he " can not
practice any kind of husbandry" in respect of such animals.
Continuing, Mr. Garter said :
"And here it will be observed how nature seems to take
notice of the impotence of man and furnishes means of per-
petuating the species of the wild animals last mentioned.
• ♦ * Take the herring, the mackerel, the cod; they do not
produce one only at a birth, but a million ! They produce
enough not only to supply all the wants of man, but the wants
of other races of fishes that feed upon them. • • » There
isiinother mode designed by nature for their preservation, and
that is the facility which she gives them to escape capture.
Man lays hold of some of them which come within his range,
but the great body of them never come there. With the seals
it is otherwise. They have no defense. They are obliged to
spend five months of the year on the land where man can
slaughter them ; and even at sea they can not escape him, as
the evidence clearly proves. • • •
"Marquis Visconti-Venosta. Do you know any other ani-
mals besides the seal that are situate in like conditions?
"Mr. Carter. None under precisely the same conditions.
I hear my learned friend whisper 'sea otter,' but you can not
practice any sort of husbandry with the sea otter. It never
places itself like the seal under the power of man. • ♦ ♦
" The President. You will not put the sea otter on the same
legal footing as you do the fur seal?
"Mr. Carter. Fo. So far as 1 am aware, man has no sure
means of preserving the sea otter, for it seems to me that he
has exterminated it almost altogether. Then take the case of
the canvas- back duck, a bird which abounded in America. As
long as man made but a slight attack upon its numbers — fifty
years ago, when there were no railroads and when the means
of transporting it were quite imperfect — this bird was found in
great plenty, but the abundance was confined to the locality
where it was found. But now it can be transported five thou-
sand miles without injury, and the whole world makes an attack
upon it. The law may protect it a little, but it can not protect
it altogether from the cupidity of man; and this creature, too,
is fast disappearing.
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856 INTERNATIONAL ARBlTRATlONfi.
'^In other words, these birds have all the characteristics of
wild animals, and none of the characteristics of tame animals.
You can not practice any husbandry in regard to them. No
man and no nation can say to the rest of the world that he has
a mode of dealing with them which will enable him to take the
annual increase without destroying the stock. • • • When
a more accurate knowledge is had of the habits of fishes it
may come to be ascertained that the inhabitants of some shores
can protect some races of fishes which resort to that shore,
provided other persons are required to keep their hands off.
"The President. And that would give a right of appro-
priation, in your view!
"Mr. Garter. Yes; that would tend that way. If they
could furnish the protection and no one else could. That would
be the tendency of my argument. I am glad to see that the
learned president catches it.
" The consequence of the proved facts is that the fur seal
can not maintain itself against unrestricted human attack."
After Mr. Garter had made the distinction
The Duty of Proteo- between seals and certain wild animals not the
^'m hT IT n • t ^ subject proi)erty, on the ground of the impossi-
Btates. bility of exercising a husbandry in respect of
the latter, a question arose as to the extent of
the right and duty of protection claimed for the United States
in respect of the fur seals. In this relation the following
dialogue occurred :
"The President. Mr. Carter, may I ask you a question!
"Mr. Carter. Gertainly. • * •
"The President. * * • Myqucstion is, Does the Amer-
ican Company contend, as I understand you to contend, that
the owners, whoever they be, of the Pribilof herd, have a right
of property or protection in these animals, wherever they be;
and if they have the right of property and protection, have
they a legal right as well as moral right to complain of the
United States not punishing pelagic sealing anywhere else,
wherever tlie seals may go; for if I understand your purport
they have a right of property or protection anywhere — not only
in Alaskan waters.
" Mr. Garter. I agree to your suggestion that the lessees
of these islands would have a moral right.
"The President. Ko; I ask you whether they have a legal
right I
"Mr. Carter. Not quite a legal right, jierhaps, because at
the time when their lease was executed and their rights were
acquired it might be said to be the fair interpretation of that
document that they took their right to the ftir seals subject to
the existing condition of things and that if there was any fail-
ure on the part of the United States to repress pelagic sealing
they took it subject to that failure.
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t^UR SEAL ARBITRATION. . 85?
"The President. I wanted to make the distinction clear.
"Mr. Carter. Yes; 1 apprehend. If these islands were
not in the possession of the United States Government, but
were in the possession of private individuals, I think there
would be a moral right on the part of those individuals to call
upon the United States Goverument to exercise its powers on
the high seas to prevent the destruction of those seals.
"The President. That is what the United States demand
from us to day t
"Mr. Carter. It is what the United States demand from
you today. It is what I am now endeavoring to show to this
Tribunal. I am taking one step, and that is to say that the
United States has a right of property here. My next step will
be that having that right of property, they have a right to go
there with force and protect it, and my next step will be that
if they have not the right to go there with force and protect it,
you ought to pass some regulation giving them that right.
"The President. Then they do not protect their own prop-
erty, as yet, against the pelagic sealing.
"Mr. Carter. They do not ])rotect their own property as
yet, for the reason that they do not want to disturb the peace
of the world.
"The President. Would it disturb the peace of the world
if they were to act against their own citizens engaged in pelagic
sealiug?
*' Mr. Carter. No ; not at all ; and we continue to act against
our own citizens.
"The President. No, you do not do that. You do not act
against your own citizens everywhere.
"Mr. Carter. So far as our laws go.
"The President. I say your laws do not go as far as your
contention.
"Mr. Carter. No; the laws do not go as far as our con-
tention goes. The Congress of the United States is a different
body from the executive department of tlie United States.
The executive department of the United States submits ques-
tions of law, takes its position, here. I am here for the pur-
pose of arguing them. Perhaps the Congress of the United
States may not have gone through all the processes of reason-
ing which I have gone through. * • *
"The President. You want to convince us first and the
American Congress afterwards, while you ought to convince
the American Congress first and us afterwards. That is what
I mean. It is merely a point in my mind.
"Mr. Carter. That the American Congress, after this
tribunal shall have established American rights, will hesitate
at all in exercising the utmost degree of protection is scarcely
to be apprehended.
"The President. But it might have been in argument
before us that the American Congress had already admitted
the right.
"Senator Morgan. You will remember that Lord Salisbury,
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858 INTERNATIONAL ARBITRATIONS.
I think, or Lord Bosebery, iu discussing the modus rivendi
which is now governing this matter, made the objection that
the British Government and the American Government would
be tying their hands by agreeing upon the prohibition of
])elagic sealing during the pendency of this litigation, and
permitting other nations to come in and take the seals at their
will. Both governments had to take the risk of it.
''Mr. Carter. Yes; that is undoubtedly true. But still
the observation of the president is correct, namely, that if the
United States had a property in these seals and a right to
protect them upon its own possessions, it could at all times
have prevented its own citizens from taking seals even in the
northern Pacific Ocean. It could have done that. It has not
done it; and so far as that is an argument bearing upon the
merits of this question of property, I must allow it to pass
unanswered; but as to the force and weight of it, 1 must be
permitted to say that it does not seem to be very significant.
'* The President. It merely shows the question is a delicate
and disputed one.
"Mr. Carter. The policy of passing laws of that character,
the direct operation of which would be — allowing that these
pelagic sealers were mere marauders — to restrain your own
marauders for the benefit of the marauders of another nation,
is not a very obvious one.''
As against the rights claimed by the United
The Bights of the States in respect of the fur seals, Mr. Carter
A^^^neiitira"'^ contended that there was no other right that
Konopoly. could be set up. It was, he said, as nearly as
he could ascertain, " asserted to be a right to
pursue the animal because it is a free swimmuig animaU in
the first place, and because, in the next place, there is no
power on the sea to prevent it." This did not, he declared,
suggest a principle of right at all. Why should anyone " be
permitted to destroy a useful race of animals, a blessing of
mankind, because they happen to move freely in the seaf
And as for the argument of a lack of power to interfere with
pelagic sealers on the high seas, it seemed "to involve the
solecism that there may be a right to do a wrong upon the
sea!" To destroy "a useful race of animals" was "a crime
against nature," which, *^ if it were committed within the bound-
aries of any civilized and Christian state, would be punished
as a crime by municipal law." Continuing, he said:
"Nature has so ordered it that any pursuit or occupation
like this which consists simply in destroying one of the bless-
ings of Providence, does no good, and nothing but evil, in any
direction. We say we, the United States, can take the entire
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FUR SEAL ARBITRATION. 859
product of ibis animal, famishing it to the commerce of the
world in the least expensive and in the best manner. Why do
you not permit us to do it! Why break up this employment!
* • • Then again, as I have already said in an earlier part
of my argument, one of the limitations to which property is
subject, and especially property owned by nations, is a trust
for the benefit of mankind. Those who have the custody of it
and the management of it have a duty in respect to it. • * •
It is the duty of the United States to cultivate that bounty of
nature, the possession of which is thus assigned to them, and
to make it productive for the purposes of the world. • * •
Why should they not be permitted to perform it! • ♦ #
They can not perform that duty, if the animal is destroyed.
''Has the United States even the right to destroy that
seal! It has the power. Has it the rightf Has it the right
to go upon those islands and club every seal to death, and
thus deprive the world of the benefit of them! Certainly
not. ♦ • ♦
" There is no rights therefore, that can be set up against the
claim of the United States. Well, if there were something
less than a rights if there were some inconvenience to which
mankind would be subjected, if pelagic sealiug were prohib-
ited and an exclusive property interest awarded to the United
States, we might hesitate; but there is not. ♦ * • There
is, indeed, a suggestion on the part of Great Britain of an
inconvenience in this particular. It is said that it is building
up a monopoly for the United States, enabling them to gain a
monopoly in the seal skins and thereby acquire a great profit.
Well, I admit that it would be a monopoly. There is always
a monopoly when one particular nation, or particular men, own
an entire source of supply. It is not an absolute monopoly,
for there is a certain competition on the part of Eussia and
Japan ; but it is in the nature of a monopoly, of course. Where
there is an object in nature of which the supply is limited, if
the source lies wholly within the power of some particular
nation it must necessarily have a monopoly. That is unavoid-
able. But it is a monopoly to the United States, of -course,
only because the United States happens to have those partic-
ular islands. The possession of them, the sovereignty over
them must be awarded to some nation, and therefore a mo-
nopoly is in a certain sense necessary. ♦ • ♦ When does a
monopoly become injurious to man! It is only when it is an
artificial monopoly. ♦ • ♦
" You must artificially limit the supply. But not only has that
never been done here, but it never can be done. I say it never
can be done, because no profit can ever be found in it. There
is a demand for every seal skin that can be produced, and a
profitable demand; and the whole supply is thrown upon the
market. * ♦ ♦ If anybody is required to pay a large price
for them, it is because somebody else is ready to pay a large
price. • * * Taking into account what is paid to the United
Digitized by LjOOQIC
860 INTERNATIONAL ARBItRATiONS.
States aud the profits of the lessees besides, all of which must he
fairly regarded as the profits of the industry, there is, of coarse,
a very large profit upon every skin that is sold ; that is to say,
the price of the skins may pay two or three times over for aU
the labor and all the expense which the gathering of the prod-
uct costs. There is a very large profit. That goes to the
United States, and to these lessees — is distributed among them.
It is exacted, of coarse, from the citizens of the United States
the same as it is from the rest of the world; but it goes to the
United States and these lessees. What objection is there to
that? Is that anything more than a fair remuneration from
this bounty of Providence which is placed in their custody and
in their control, aud for tbeir labor, their efforts, and their exer-
tions in preserving it and furnishing it for the use of mankind!
Of course not. It is perfectly fair."
In connection with the question of the right
'^^^E^ii^i^' ^^ ^^^ United States to protect the seals, Mr.
Carter said he observed in the British Case
and the British Argument the suggestion that the seals had
two habitats, one on the Pribilof Islands aud the other in the
sea along the coast of British Columbia, and that the existence
of the latter habitat furnished the basis of " a superior right
also grounded upon favorable conditions of locality.'' This
did not, he declared, ^* amount to enough tb talk about." It
was not an advantage which enabled the inhabitants of the
territory *^to deal with the seals in a different way," to dis-
criminate females from males, or <Ho practice a husbandry in
respect to the animal, and to give to mankind the benefit of
the increase without destroying the stock." JSTor was it true
in fact that the seals had a winter habitat. They were con-
stantly on the move; and if they had a habitat along the coast
of British Columbia, they also had the same habitat along the
coast of California and Oregon and along a vast extent of the
southern coast of Alaska and of the Aleutian chain. Kor was
there, continued Mr. Carter, any ground of merit in the sugges-
tion that the seals consumed a great many fish in the sea along
the shore of British Columbia. The fish thus consumed were
not the property of Canada or of Great Britain, but of mankind.
"I grant you," said Mr. Carter, '^that the circumstance that
mankind feeds the seals with its fish is a circumstance tend-
ing to give mankind an interest in the product. The seals in
a beneficial sense belong to mankind. That is our position;
and we give them to mankind ; and mankind works out its true
and beneficial title only by employing the agency and the
Digitized by LjOOQIC
PUB SEAL ARBITRATION. 861
Instrumentality of the United States. That is the only way
whereby mankind can reach or ought to reacli them."
Uaving commented upon these suggestions, Mr. Carter took
up the iurther suggestion that, if a property right should be
allowed to the United States in the seals, it might prevent the
enjoyment by the Indians along the coast of their immemorial
right and privilege to hunt seals for their own purposes. On
this subject Mr. Carter said:
" That right of the Indians, such as it is, deserves very re-
spectful consideration. It stands upon somethin g i u the nature
of moral grounds, I admit. • • • But what is the nature
of that case ! That is a pursuit of the animals not for the pur-
pose of commerce, but by barbarians — for they are such — for
their own existence. ♦ • * It is insignificant in amount.
• • • It is, therefore, a pursuit which might be tolerated
without danger to the herd.
" Therefore, it is quite possible that the United States should
have a property interest in the seals, subject, however, to the
right of the Indians to pursue them in the manner in which
they were accustomed to do in former times; that is to say, for
their own purposes, and in canoes from the sbore. * • •
There is not a large population dependent upon it; but it will
not do, under cover of that pursuit, to allow civilization to
invade in that manner the herds of fur seal. It will not do to
employ these Indians and man large vessels with them upon
the high seas there to attack these seals for the purpose of
furnishing them to commerce. • * •
"The President. Do you not think it is very diflBcult to
draw a legal line of limitiition between what an Indian is
allowed to do for himself and what he may be allowed or per-
mitted to do in the service of an European or civilized man ?
"Mr. Carter. There are always ])ractical difficulties con-
nected with thedealings with barbaric tribes. There are always
greater or less diflSculties; but there are no insuperable diffi-
culties connected with it.
"The President. Do you find there is a substantial legal
difference between the two cases?
"Mr. Carter. There is a substantial difference,
"The President. Between the case of an Indian fishing on
his own account and an Indian fishing on the account of a
civilized man!
"Mr. Carter. I think there is a very substantial one.
"The President. A substantial legal difference?
"Mr. Carter. Yes; I think so. When I speak of legal, I
mean moral or international grounds. There is no sharp dis-
tinction.
"The President. Moral and international are two different
fields of discussion, I think, though they may often join.
"Mr. Carter. Not so different as may be supposed.
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862 INTERNATIONAL ARBITRATIONS.
"The President. They are not contrary.
"Mr. Carter. Not so different as may be supposed. Inter-
national law rests upon natural law, and natural law is all
moral. • • • To say that they are moral does not distin-
guish them at all from such as are legal. * • • There is
the broadest sort of difference between the two cases. The
Indian goes out and attacks and kills the seals for the purx>ose
of sustaining himself, making a skin which he is going to wear,
and getting food to eat.
"Lord Hannen. Is it to be confined to merely their suste-
nance! Were they not the only suppliers of the skins in the
first instance! • * •
"Mr, Carter. That is true; they were original traders.
They were made use of for the puri)oses of commerce. • ♦ •
"The President. That you consider was allowed at the
time, and would not be allowed now.
" Mr. Carter. Before the Russians discovered these regions,
they were inhabited by Indians, and those Indians did pursue
the seals in that way. • • ♦ That was the beginning of
an attack by civilization through commerce, which is its great
instrumentality. Of course, at that very early period, when
the draft was very small, it did not threaten the existence of
the stock at all; but by and by it did.
" When the existence of the stock is threatened, what are
3'ou to do! That is the question.
" The President. That is a point of fact which may create
a difference in right, according to your view.
"Mr. Carter. The distinction which I mean to draw is be-
tween a pursuit of these seals for the i)urpo8es of personal use
of the people, such as they were in the habit of making before
they were discovered by civilized man, and a pursuit of them
for the purpose of supplying through commerce the demands
of the world. Tliat is the distinction. The first pursuit, which
is confined to the barbarian, is not destructive of the stock.
Nor is the other, as long as it is limited to certain very narrow
proportions and conditions; but when it is increased, then it
does threaten the stock. What must you do then! You must
adopt those measures which are necessary to preserve the
stock. And what are the measures which society always em-
ploys for that purpose! I have detailed them already. It is
by establishing and awarding the institution of property.
Must society withhold its effort? Must it forbear to employ
those agencies because here are a few hundred Indians in ex-
istence who may have some needs in referenO/C to them!
" The President. It may be that the civilized fishermen are
not more than a few hundreds also. The number of men em-
ployed is not absolutely a foundation of legal discrimination
or legal difference.
" Mr. Carter. You mean tliat those that are employed on
the Pribilof Islands are a few hundreds!
"The President. No; I mean pelagic sealing may be car-
Digitized by V^OOQ IC
FUR SEAL ARBITRATION. 863
ried on by a few hundred or a few thousaDd Indians; but that
is another matter. The diflference you make is whether they
are Indians or civilized?
" Mr. Carter. Yes.
" The President. Suppose the Indians engage in commerce
also, selling or bartering the skins. You would allow that also 1
" Mr. Carter. When it is not destructive.
" The President. It is a question of proportion, a question
of measure, with you?
«< Mr. Carter. If it is destructive, then it is not to be al-
lowed. They have no right to destroy this race of animals.
"The President. In order to give you satisfaction, the
question would be to know what limits the pelagic sealing may
be carried to without being destructive?
"Mr. Carter. Yes; that is practically the question; if you
can say that pelagic sealing can be carried on without being
destructive. • * •
"The President. By Indians, at any rate!
"Mr. Carter. By Indians in their canoes, in the way in
which it was originally carried on. That does not threaten the
existence of the herd.
"The President. That is a natural limitation.
" Mr. CARTEit. It is possible to do this. It would be possi-
ble for the people, now engaged in pelagic sealing, to say, 'The
Indians are permitted to engage in pelagic sealing. We are
prevented from doing it. We will just employ these Indians.'
"The President. That is the difficult point. It was the
point I just hinted at.
"Mr. Carter. Yes; they might say, 'We will employ those
Indians. We will employ them to do the work which we are
prohibited from doing.' The Indians are perfect sealers. They
can destroy this race as quickly ^s anybody else, if you hire
them to go out there as pelagic sealers. ♦ ♦ * That can not
be done; and when the question comes whether they are to be
permitted to exterminate a race of animals like the seal, not
for the purpose of supplying themselves, but because they are
the employees of men who are prohibited from doing it, of course
you must prohibit them as well.
"The President. That is their livelihood also?
" Mr. Carter. The livelihood of the Indians. They have a
right to pursue their livelihood as long as it is confined to get-
ting the seal for the purpose of clothing for their bodies or for
meat; but when they want to engage in commerce and clothe
themselves in broadcloth and fill themselves with rum in addi-
tion to their original wants, and for that purpose to extermi-
nate a race of useful animals, a difterent problem is presented.
" But practically it would be of no account. The only way
in which they pursue or ever have pursued the seals is in open
boats, going out short distances from the shore. They can
take a few seals that approach the shore rather more closely.
The pelagic sealing that threatens the existence of the herd is
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864 INTERNATIONAL ARBITRATIONS.
carried on by means of large vessels j)rovidecl with perhaps a
dozen or fifteen or more boats and a very large crew, which
follow the seiils off at sea, it may be hundreds of miles, capable
of standing any weather and continuing on the sea for months."
Mr. Carter also discussed the question of
Property in the In- ti^ihe property which the United States Gov-
"^^'^ * ernment asserts in the industry carried on by
it on the Pribilof Islands, irrespective of the
question whether they have property in the seals or not." He
assiimed as facts that this industry was established and de-
veloped by Eussia with care, labor, and expense; that it was
not interfered with during the time of the Russian occupation;
that the United States continued to carry it on ^'without in-
terference until pelagic sealing was introduced;'' that *' they
succeeded in securing the entire annual increase of these ani-
mals and devoting it to the purposes of commerce without di-
minishing the stock, and that by means of this industry the
stock of seals has been actually preserved." The industry
thus established and carried on was, declared Mr. Carter, "un-
questionably a full and perfect right" — a "lawful" and "use-
ful" occupation — against which nothing was asserted but the
alleged •right of pelagic sealing, which was "in itself" a wrong.
The right to the industry was founded on "a natural advan-
tage peculiar to the spot," and it was a ^^ national^ industry,
since it required for its conduct the establishment of rules and
regulations which could be carried into efl'ect only by the
authority of a nation.
The "national industry" thus created, Mr.
^tlifind try barter maintained that the nation had the
right to protect against the attempts of the
citizens of another nation, for their own temporary benefit, to
come and break it up. In this relation he said:
" Let me illustrate that. I may assume that there are races
of fishes which regularly visit a shore. They may not be the
l)roperty of the owners of that shore, they may not be the
property of the nation which holds dominion over that shore:
nevertheless, it is possible by making rules and regulations to
create an industry in them; and when that is done there is a
thing, a creation, which that nation has a right to maintain
against the attacks of the people of other nations.
" The President. That would create a right of protection
over the species ?
"Mr. Carter. That is what I am arguing; it would give a
Digitized by LjOOQIC
PUR SEAL ARBITRATION, 865
right of protection; the right of protection stands upon the
industry which is created. * * *
"The President. Your argument goes to show that the
right extends beyond the limits of the islands.
"Mr. Carter. Yes; we have the right to carry on the
industry upon the islands; and, having that right, when
the carrying on of the industry is prevented by wrongful acts
in other plaices, we have the right to protect ourselves by
repressing those acts. * * • Turning to the Argument
Th f ovitA ^^^ ^^^ P^^* ^^ Great Britain, • • ♦ we
p i^**d(^riaB€^' ^^^® ^^ admitted here that it is competent
*" *^ ' to particular nations to assert for themselves
the exclusive benefits of an industry connected with oyster
beds, pearl-fishery beds, and coral-reef beds, although they are
out on the high seas beyond the territorial three-mile limit,
and to assert that right against the citizens of other nations.
♦ ♦ * They say it is SLproperty right to the bottom^ and that
it exists wherever the bottom may be occupied,, and does not
exist where the bottom can not be occupied. Well, that
amounts to this, then, that wherever a nation can occupy the
bottomy although outside the territorial limits, it may rightfully
occupy it and exclude other nations from it. But how can
you occupy the bottom of the sea! Well, you can occupy it
only by taking such possession as is possible. You can buoy
it where you can rea<5h the bottom, and establish a naval force
and exclude the citizens of other nations from it; and that is
all the occupation of the bottom that you can effect. • * ♦
Now, tliat goes much further than the argument of the United
States, no part of which supports a general right to thus
occupy the sea outside the three-mile limit. • • * If the
right to establish the industry rest upon an ability to occupy
the bottom, then you can establish one wherever you can reach
bottom ; and if you can establish it in one place, you can estab-
lish it in another. I do not suppose it is possible to defend
any right like that over the high seas. I do not suppose it is
possible to defend any such right as that over the fisheries of
the seas. There must be some other principle which may be
called into play.
"These regulations aie found in the cases of oyster bods,
coral beds, beds where the pearl fishery is carried on, beds
which are found in a certain proximity to the coast of a coun
try, and which can be worked more conveniently by the citizens
of that country than any other. * * * Those are the cases
iu which it can be done, and in those cases it is perfectly justi-
fiable. 1 1 is where th ere is a not ura I advan tage, tcithin a certain
proximity to the coast of a particular nation^ tchich it can turn
to account better than the citizens of any other nation. In such
cases, if the particular nation is permitted to establish and
carry out a system oi national regulation^ it may furnish a reg-
ular, constant supply of a product of the seas' for the uses of
5627 55
Digitized by LjOOQIC
866 INTERNATIONAL ARBITRATIONS.
mankind, which product, if it were thrown open to the. w!iole
world, woukl be destroyed. • ♦ *
"In the protecting of industries of that sort, does the na-
tion extend its jurisdiction over those places! Does it make
them a part of its territory! Certainly not, • ♦ * All
that it is necessary for it to do is to enforce such regulations
on those places as are effective and sufficient to protect the
right from invasion by the citizens of other nations. • • *
If the coral beds can be protected from invasion far out at sea^
if the i)earl beds can be protected from invasion by municipal
regulations operative upon the sea, why should not this fishery
be protected in the like way! It requires no greater exercise
of authority. It requires no straining whatever of the ordi-
nary rules which govern the conduct of nations in respect to
their interests. It is a more illustrative instance, by far, than
the case of the coral beds, or the pearl beds, or the oyster beds;
a more illustrative instance for the application of the princi-
ple that the nation may protect the industry which has thus
been created.
"To make it entirely analogous, if these seals were in some
manner attached to the bottom, if they were in the habit of
congregating at some particular place on the bottom of the
sea, then, according to the doctine which seems to be made the
foundation of the right by our friends on the other side, the
United States would have a right to go out and tjvke posses-
sion of that bottom, incorporate it into its own territory, and
treat it as a part of its own nationality.
"I am sure we assert no such right as that. We do not ask
to go to any such length as that. All we ask is the right to
carry on the industry on our own admitted soil, and to prot-ect
it from being broken uj) by rei)ressing acts upon the high seas
which are in themselves essential wrongs."
Having discussed the claim of a right to pro-
The Nature of the ^^.^ ^^^^ sealing industry established on the
Pribilof Islands, Mr. Carter proceeded to con-
sider what ^^ action''' the United States might take for that pur-
pose. Protection could not, he said, be afforded by legislation,
since legislative ]>ower did not extend over the sea; but it
might be aft'orded '* by the exercise of exemtive power — an exer-
cise of natural power — an exercise of what you may call foroeP
The nation had the light to protect the industry, "just as any
individual has a right to protect his property, where there are
no other means, that is, by /orcr." Pursuing this subject, Mr.
Carter said :
"Individuals can defend their rights and property by the
employment of force to a certain extent. If a man attacks me,
I may resist him and subdue him and use violence upon him
Digitized by LjOOQIC
PUR SEAL ARBITRATION. 867
for that purpose; and I may go as far as it is necessary for
that purpose; not further. Whatever force it is necessary to
employ to defend myself, I may employ against him. So if a
man comes upon my property, I may remove him, if I have to
carry him five miles; and I may employ as much force as is
necessary for the purpose of removing him from my property;
but I can not employ any more force than is necessary. • • •
What can nations dot They can only use this same, sort of
self-defensive power that an individual does. This is all. That
they can use under all circumstances, limited, however, by the
same rules and by the same boundaries which limit it in the
case of an individual — necesnity. * • *
"We may make that very plain and palpable by turning to
admitted instances of the exercise of it, and take for that pur-
pose what are commonly called belligerent rights. Here is a
nation engaged in war. It blockades the enemy's ports. The
ship of a neutral nation, friendly to both parties, undertakes to
enter that blockaded port, and the belligerent that has estab-
lished the blockade captures her by an exercise of force, carries
her into one of his own ports, and confiscates her, and sells
her. ♦ ♦ *
"That is not legislative power. It was not exerted by rea-
son of any extension of the sovereignty of the nation over the
seas. It was simply an exercise of self-defensive power, stand-
ing upon the principle of necessity, and limited by the principle
of necessity. • * • You can enter even the territory of a
friendly state, if it is necessary for the purpose of protecting
yourself against your adversary; and even when there is no
condition of war. They had a rebellion in Canada some years
ago, and a vessel was fitted out by persons making use of the
soil of the United States for the purpose of aiding the rebellion,
as it was called. A British military force crossed the ^Niagara
Eiver, captured that vessel in the territory of the United
States — ^not on the high seas, but in the territory of the United
States.
"Senator Morgan. You refer to the Caroline f
"Mr. Carter. 1 refer to the case of the Caroline,
"A celebrated instance in history was the seizure by Great
Britain of the Danish fleet in the harbor of Copenhagen. There
was the fleet of a friendly x)ower. There was absolute peace
between Great Britain and Denmark; but Great Britain was
apprehensive that that fleet would fall into the possession of
France, and the seizure was defended by her ablest statesmen
on the ground of necessity. * ♦ •
"The President. Do you not think that all of that takes us
out of this sphere of law and right!
"Mr. Carter. Not at all. We are right within the sphere
of law and right.
"The President. I do not think the whole world generally
considers it so.
"Mr. Carter. We are right within the sphere of law; and
Digitized by LjOOQIC
868 INTERNATIONAL ARBITRATIONS.
the exercise of these acts of self defeusive authority — the ex-
tent to which they may go, the necessities which create them,
how far the necessities extend — constitute a great chapter in
international law, and are all dealt with, all their limitations
defined, and the principle which goverus them laid down.
. *< What is said upon the other side! They
Beif-DefMise in Time ^g^^^ ^^^^^ ^^ these th ings may be done. What
® **^*' do they say! Well, they say that they can not
be done in time of peace; that you can not defend yourself by
the exercise of force on the high seas in time of peace. * • •
There is no substance in that. The right exists in time of peace
just as well. Whenever the necessity arises, the right arises,
whether it be in time of war or time of peace. It may arise in
peace just as much as in war. In point of fact, the principal
occasions, and the most frequent occasions, for the exercise of
this right happen to occur in time of war, and, therefore, the
instances in which it is exercised, and the rules which govern
its exercise, aie found in belligerent conditions far more than in
conditions of peace. The absence of the occasion is the reason
why we find less discussicm of these rights in time of peace,
and a want of rules for regulating them ; but. nevertheless, the
occasion may arise, and when it does arise, then the power
must be put in force.
"Now, let me call the attention of the Tri-
Bevenue Legisia- j^y,^g^| ^^ occasions when it does arise in times
^' of peace. In the first place, let me allude to
those municipal regulations wliich are devised by different
states for the purpose of protecting their revenue. 1 before
remarked that the protection of the revenue of a nation could
not well be effective unless the conduct of foreign vessels could
be controlled at a greater distance than three miles from the
land. If a vessel intending a breach of the revenue laws of a
nation had the power to approach its shores to a distance of
three miles from the land, and wait outside of that limit for a
favorable opportunity to slip in, or to unload its cargo into
another vessel sent clandestinely from the shore, it might at all
times evade its revenue laws; and, consecjuently, most nations—
certainly Great Britain and the United States — Great Britain
from a very early period and the United Stales almost from
the period of her independence — have enacted laws jirohibiting
vessels from transshipping goods or hovering at a distance
much greater than that of three miles— three or four leagues
from the shore being the area commonly fixed upon. What is
the penalty which they denounce for that purpose? The pen-
alty is capture and confiscation. Docs that penalty, and the
enforcement of that penalty, involve an extension of jurisdic-
tion out to that limit of tliree or four leagues! Certainly not.
It is an act of self defense. It is an executive act, designed to
protect the revenue interests of the country. So, also, in the
case of colonial trade, a similar device was formerly adopted
for the purpose of preventing the approach of vessels in the
Digitized by LjOOQIC
FUE SEAL ARBITRATION. 869
neighborhood of the colonies of another country, for the pur-
pose of engaging in illicit trade with such colonies. In order
to enforce such prohibitions, it was necessary that regulations
should be adopted prohibiting vessels from hovering off the
coasts. • • •
*< It is, however, true — and a distinction is to be noticed
here — that regulations designed to govern the exercise of this
right of self defense sometimes go a step further than the mere
making of i)rovision for the seizure and capture of a vessel on
the high seas, when she is actually engaged in an offense against
the laws of the nation which undertakes the seizure. They
sometimes go a step further than that, and make the conduct
of a vessel, if it justifies a suspicion that she intends illicit or
prohibited trade, or intends any other violation of the laws of
the nation adopting the regulation, itself an offense, although,
in point of fact, it might be true that the vessel was not actually
engaged in such violation.
" When regulations of this character go to that length, they
go beyond the mere right of employing force, and enter the
field of legislation, and assume a limited and qualified right to
make laws operative upon the high seas. That is the nature
of regulations when they undertake to make acts offenses
which are not, in their nature, necessarily offenses. If a vessel
is actually engaged in an attempt to carry on a prohibited
trade witli the colony of a natioTi, that act is, necessarily, in
itself a violation of the rights of that nation ; but if she is not
so engaged, but happens to be involved in circumstances which
throw suspicion upon the nature of the enterprise in which she
is engaged, and justify a suspicion that she is really contem-
plating a ])rohibited trade, if there is a regulation which makes
that conduct, of itself, a crime, that, we must admit, is a ]>iece
of legislation, and assumes the right^ — a limited right, it is
true — of passing laws o])erative upon the high seas.
Extent f u ted '' '^^^ ^^*® doubt and all the controversy which
^ ?* have arisen in reference to this question of the
* *^* exercise by a nation of the right of self-defense
upon the high seas turns upon the validity of regulations of
that sort, regulations which go beyond the mere shaping of
the right of self defense and prescribing how it shall be exer-
cised, and undertake to create distinct ofienses. The power
of a nation to do that has been disputed, and may perhaps be
still the subject of dis])ute. It will be observed that this
exercise, even of the right of legislation in the cases which I
have mentioned, does not involve an assumption of a general
authority to legislate over the seas. It is limited strictly to
the case of self-defense, and is calculated to provide means by
which that right of self-defense may be more efficiently exerted ;
but, nevertheless, it does partake of the quality of legislation.
Whether it is valid or not, has been disputed. * • *
" Let me say, however, that the United States, upon this
argument, avoids all controversy of that sort. We do not ask
Digitized by VjOOQ IC
870 INTERNATIONAL ARBITRATIONS.
for the application of any doctrine, even although we might,
to the effect that we can establish any prohibited area on the
high seas and exclude the vessels of other nations from it.
We do not ask to have it determined that the United States
has the right to say that the oiieuse of pelagic sealing when
committed by vessels of another nation is a crime for which
we can punish the oflBcers and crew of such vessel. That
would be legislating for the high seas. We do not ask for a
decision that the LTnited States can make a law and enforce
it, by which she could condemn a vessel that had been engaged
at some past time in pelagic sealing, if the vessel was not so
engaged at the time of seizure. The doctrine maintained by
us simply amounts to this, that whenever a vessel is caught
red-handed, flagrante delicto, in pelagic sealing, the Govern-
ment of the United States has the right to seize her and cap-
ture her; that is to say, it has the right to employ necessary
force for the purpose of protecting, in the only way in which
it can protect, its property in the seals, or its property interest
in the industry which it maintains upon the islands. That is
the extent of our claim."
The oral argument of Sir Charles BusseU
OraiArsrumentofSir opened with a summary of the positions of the
ar es ufse . Uu^j-^^j States and a denial of any exclusive
right of property, jurisdiction, or protection in the fur seals.
Nevertheless, the discussion had, he declared, been "exceedingly
interesting", mainly because of the " courage" — he would not
say "audacity" — with which counsel for the United States had
" propounded propositions of law which they affected to sug-
gest were almost beyond question," but for which he hoped "to
demonstrate there is no legal authority whatever." Among
these, he referred to the proposition that, though property in
seals as between individuals was not recognized by the munic-
ipal law of any civilized country, yet "international law"
might be invoked to declare the property in the United States.
In order to establish this position Mr. Carter
llie Nature of Inter- ^ad, said Sir Charles Russell, put forward the
w, ^^ extraordinary proposition " that "the moral
law and the law of nature" — whatever the " law of nature" in
this relation might mean — were " two terms interchangeable
with international law." He therefore thought it desirable at
the outset to state broadly what his government's conception
of international law was. On this subject Sir Charles Eussell
said:
" It may be admitted that all systems of law prevailing, I
care not in what country, profess to be founded upon principles
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 871
of morality, and upon principles of j ustice. Does it follow from
that that every principle of justice, as one nation or another
may view it, or every principle of morality, as one nation or an-
other may view it, forms part of international law! By no
means. International law, properly so called, is only so mach of
the principles of morality and justice as the nations have agreed
shall be part of those rules of conduct which shall govern their
relations one with another. ♦ * * In other words, interna-
tional law, as there exists no superior external power to impose
it, rests upon the princi]>le of consent. In the words of Grotius,
Flacuitne geniibusf is there the consent of nations? » • •
•*The ideas as to morality of civilized countries do not -^to-
gre^B pari passu. There are many things which, according to
some states of society, justice requires, or morality requires,
but which another state of society, which boasts of a proud
civilization, declines to recognize. • * • I think it is true
to say that, except the United States of America, in this present
day there is no considerable power in the world that stands
out against a condemnation of privateering. Will the United
States admit that because all these great powers concurred
that makes international lawf No. • * *
^*As late as 1848, although the whole voice, I may say broad-
ly, of humanity the world over has condemned the slave trade —
and no country has gone further to make sacrifices in the same
direction, to its credit be it said, than the United States — a
judge of the high court in Oreat Britain, in the case of Buron
V, Denman, expressly declared that slavery is not an otfense
against the law of nations, and that ownership in slaves is not
forbidden by the law of nations. There is a curious comment
made upon this proposition at page 7 of the written Argument
of the United States. After refeft-ring to a decision in the same
sense in the American courts, my learned friend, Mr, Carter,
alluding to Chief Justice Marshall, says —
" 'The Siiprenie Court of the United States, ^peakinp: through its greatest
Chief Justice, was obliged to declare in a celebrated case that slavery,
though contrary to the law of nature, was not contrary to the law of na-
tions; and an English judge, no less illustrious, was obliged to make a
like declaration. Perhaps the same question would in the present more
humane time be otherwise determined/*
"No, sir, it would not. It could not, until nations have
given their consent to its being treated as a crime against in-
ternational law. • * *
" Now, side by side with this conception of the law of nations,
there is going on in the world a gradual change and a gradual
growth of opinion. • • * There may be opinions, or doc-
trines, or usages, which perhaps are making their way in the
world, are perhaps appealing more or less successfully to the
sympathy of thinkers in the world, which are not yet part of
the law of nations, because nations have not consented to them.
They are not the law of nations, but only the material out of
which, it may be, at some future time some new principle of the
Digitized by LjOOQIC
872 INTERNATIONAL ARBITRATIONS.
law of nations may be developed as the world thinks wise; and
1 point to this for the reason that my learned friend in the cita-
tions from international writers that he has made, and in a
much lar«]fer number which are given but to which he did not
refer, did not draw that distinction which must be drawn
between those writers and authorities {I think erroneously
called authorities) who deal with the subject with a view to
discover the metaphysical grounds, the ethical reasons which
may be advanced in support of this or that view, and those
writers (much less interesting but much safer guides) who <'on-
flne themselves to laying down what rules have in fact obtained
the consent of nations. * ♦ •
"The President. First, may I beg to put a question! You
speak of international law as comprising the customs and
usages of nations, on which diiferent nations have agreed.
*' I suppose you mean not only by written agreement^ but
also by right of usage!
"Sir Charles Russell. Certainly. When I say ' to which
they have agreed,' of course I mean not merely or necessarily
by a formal or express or written agreement, but by any mode
in which agreement may be manifested, by which the Tribunal
may arrive at the conclusion that they have so agreed.
" Senator Morgan. Including acquiescence!
" Sir Charles Russell. Certainly. I use < agreed' in that
broad and general sense.
"Lord Hannen. As a question of evidence!
"Sir Charles Russell. As a question of evidence: the
question always is, placnitne gentibusf^^
At this point Sir Charles Russell entered
e (tries on o e- ^^^ ^ discussion of the uses and value of the
IftglO B6Ell2iff.
fur seals, arguing that the skins were an article
of luxury, which had been enjoyed in Europe for less than forty
years; that the seal fisheries were not a prominent element of
consideration in the purchase of Alaska by the United Stiites;
and that, as the seals are large consumers of food fishes, it
might under certain circumstances be beneficial to mankind to
kill them ; and in this relation he referred to efforts to exter-
minate the hair seals in certain Danish waters, where they
prey upon the salmon. The Case, the Counter Case, and the
Arguments, of the United States had, he said, been full of
denunciations of pelagic sealing. It had been "denounced as
a crime and a great moral wrong — a little worse than murder,
and almost as bad as pirjicy." He wished to examine the sub-
ject for a moment, and see whether there was not "pervading
this style of argument the same kind of exaggeration" as was
addressed to *'the industry itself." He started with the "ini-
tial fact" that pelagic sealing was "the oldest pursuit of the
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 873
fur seal historically known." It was a pursuit followed by the
aboriginal inhabitants along the coasts in question. And how
stood the facts as to its effects! In every case which had been
referred to of the evil caused by the destructive agencies of
man as regarded seal rookeries in other parts of the world,
" the cause of the extermination of the fur seal species was the
indiscriminate slaughter upon JandJ'^ He had been "unable to
repress a smile" when reading the "beautifully descriptive" but
"most imaginative" accounts in the literature of the United
States, as to " the merits and blessings of killing on land." In
this relation he referred to a statement in the report of the
British commissioners^ as to the "unnatural and destructive
character" of the system of "driving" practiced on the Pribi-
lof Islands;* and he also contended that the evidence showed
that the lessses of the islands had of late years "themselves
been committing the grievous moral crime of killing females."
But, what was the relevance of the argument -as to the
wasteful character of pelagic sealing to the Case of the United
States f Was it because the mode pursued by Canadian sealers
was wasteful that they had no right! And had the United
States an exclusive right, because their method was not waste-
ful! Did counsel for the United States admit that if the
Canadians had, to use their formulji, a means of shooting the
seals which was not wasteful, they had the right to shoot them !
At this point the following colloquy occurred :
"The Pebsident. That argument would perhaps affect
rather the question of regulations.
" Sir Charles Kusseix. You are anticipating exactly the
' Counter Case of fin^at Hritain, 261.
2 The meaning of* the word ** driving" is this: When the sefils arrive at
the islands the old bulls take ])088es8ion of the females and with them
occupy the rookeries, while the young bulls are compelled to " hauf off
and occupy different ground. In order to avoid disturbance of the rook-
erics, the young bulls, commonly denominated " bachelors," from which
the supply of skins is intended to be obtained, are then driven overland to
the killing places, where a certain proportion is selected for killing, the
remainder, consisting of bulls too young or too old or of females incident-
ally gathered up from the margins of the rookeries, l>eing allowed to return
to the water. The purport of the statement referred to by Sir Charles
Russell was that, owing to the lack of the means of progression on land,
many of the seals suflered permanent injury from driving, and that with
the decrease in the number of '^killable'' males on the islands, the pro-
portion of females included in the drives increased. The relation of driv-
ing to the diminution of the seal herd was one of the points of diff*erenco
between the United States and British experts.
Digitized by LjOOQIC
874 INTERNATIONAL AEBITRATI0N8.
point to which I am coining. • • * It must be obvious—
as you, sir, with your acuteness, have already perceived — that
it can have no bearing upon the question of property, * • ♦
either in the industry or in the seals. * • • Is it alleged
that the right of protection of their industry depends upon
whether we kill wastefuUy or not! I should like an answer to
that. * • •
" Mr. Justice Harlan. If the killing at sea is calculated to
destroy the industry, it would seem to have some bearing on
the question of protection, if that right to protect exists.
'* Sir Charles Russell. ^ If.' There is much virtue in an < if,'
" Mr. Justice Harlan. I am making a distinction between
a mere question of i)roperty in the seals or in the herd, and
the question of the right to protect the industry on the
islands. • ♦ *
" Sir Charles Russell. That pelagic sealing may injure
the industry on the islands, if it be so called, nobody doubts.
That is not the question we are discussing; but 1 say that in
respect to any right of protection of an industry, or in respect
to any right of protection of the seal or of the herd, the ques-
tion of the wastefulness of the means has nothing whatever
to do with it, and can not give them a right which they have
not got without it, or put us in the wronf if we are in the
right. • • *
<^The President. Sir Charles, I must observe that there is
a protection of an industry which is often called property
to-day : what we call in French ' proprictc industriellej ' that is,
a sort of qualified property. • • *
" Sir Charles Russell. Could you give a concrete illustra-
tion, sir, of that law i
"The President. For instance, the right of authors, copy-
right. That is styled 'propriety litteraire' in our treaties.
That is not property, in my personal view, but it is commonly
called property in international language. • • *
" Lord U4NNEN. 1 understand that you are contending now,
that the need of the protection to make the thing valuable,
does not establish that there is a right to [give] it that pro-
tection.
" Sir Charles Russell. No; I tried to say so, and I think
I succeeded in saying so more than once, and I applied this
to the right to the industry just as to the fur seal.
" May 1 say, sir, as you have introduced the question of
copyright, there is no such thing as the recognition inter-
nationally of copy right or of patent right except by treaty.
There is no such thing, and there is no country in the world
that knows that better than America, because it is only very
late in the day indeed that it has come into any arrange-
ment with Great Britain of a protective character of that
kind. • • *
'* Now, I also desire to give in this connection an illustration
of the position as to property and as to the right to pelagic
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FUR SEAL ARBITRATION. 875
sealing by, not au ideal ease, but by the case as we know it
exists. I will put it, in the first instance, as if it were an ideal
case. Assume pelagic sealing to be pursued for a century, and
the island on which the seals breed to be undiscovered: can
it be doubted that, in that state of things, there is a right to
kill the seals in the manner called pelagic hunting? Can it be
doubted! Then, if, at the end of a century, the island on
which those seals breed is discovered, does that which for a
century was a right which all tlie world might exercise cease
to be a right, and does the mere fact that you have discovered
the breeding place on those islands change that which was
exercised by mankind in common as a right into a moral crime,
an indefensible wrong, and all the rest of itf
" Now, I say this is no ideal case; this is the actual case you
are discussing, because it stands confessed that, till the year
1786, the Pribilof Islands were unknown, and it was in that
year, for the first time, that it was discovered that they were
a breeding place for seals."
"But my learned friend,"' said Sir Charles
Motive.of the United Russell, "in ettect said this: < We, the United
^**' States, are not making this claim from any
selfish motives. We are here as the friends of humanity. We
acknowledge that this is not our property absolutely. We are
trustees for the world at large. • • * We only ask to be
permitted in the interests of mankind, for the benefit of man-
kind, to perform the office of trustees, as friends of humanity, as
philanthropists, as champions of the interests of the world.'"
Commenting upon this aspect of the subject, Sir Charles Rus-
sell said :
" Well, T am very far from doubting the sincerity of my
learned friends; but I must be permitted to point out that,
while accepting these professions as sincere, their demands
seem to me to be exactly the demands which would be made
by a selfish power making an effort to secure the seals for
themselves ; for what do they say f ' We are the owners of the
Pribilof Islands in Behring Sea.' They are pleased pathetic-
ally to describe those islands as 'the last home of the fur seal.'
They say : * Give to us, the tenants and owners of these islands,
the power to exclude everybody but ourselves from the great
expanse of ocean in which those islands are situate. Put an
end to pelagic sealing in the Behring Sea, and not in Behring
Sea only, but justify us in stretching out the arm of legal
authority over a still wider ex])anse of ocean. Authorize us
by your award to search, an<l if necessary to seize and confis-
cate, vessels tliat are engaged in this inhuman, this immoral
traffic, or vessels that we suspect are engaged in this pursuit;
» Mr. Carter.
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876 INTERNATIONAL ARBITRATIONS.
and having given us that authority we will recognize our duty
as trustees to mankind by giving to mankind the benefit of the
fur seal at the market price.''
Sir Charles Bussell also commented upon
^TSafsto^ "^ *^® "novelty" of the claim of the United
States in respect of the seals. At various
stages in the world's liistory nations had, he said, according to
their varying powers, from time to time "advanced extrava-
gant pretensions/' But those pretensions, generally speaking,
belonged to a comparatively remote period, when the rule of
might rather than the rule of right prevailed, and before the
moral force of public opinion had acquired its great control-
ling power. Assertions had been made of control, dominion,
and sovereignty over a large extent of ocean without physical
boundary and without any external marks of delimitation, and
there resulted from those assertions a claim to exclude others
from the given area and to deal exclusively with whatever was
found in it. But this was a very differer.t thing from an asser-
tion of property in the particular animals which might inhabit
the area, "and I say, subject to be contradicted, but without
fear of contradiction," declared Sir Charles, "that this is the
first time in the history of the world that a nation or an indi-
vidual has ever claimed property in a free swimming animal
in the ocean. I say, farther, * * • that this is the first
time that an attempt has been made to differentiate one par-
ticular animal from all the other animals that dwell during a
a large part of their existence in the ocean."
Taking up the fifth question in Article VI.
^^s2 h!^!*"'* of the treaty of arbitration. Sir Charles Bus-
sell said he would assume that it meant the
assertion of a right of property in one of three diflFerent forms —
in the seals, in the "herd," or in the "industry" — and, as cor-
relative to the right of property, the further right of protecting
it by search, seizure, and confiscation. Now, he agreed with
counsel for the United States that the question of property in
the seals, or in the seals as a collection, group, or herd, dei>ended
upon the nature and habits of the animal and the physical rela-
tions of the United States to it; but it passed human compre-
hension, at least his comprehension, how it could be alleged that
there was a i)roperty in the so called seal herd if there was
none in the individual seals. The whole was made up of parts,
and if there was no property in the parts how could there be
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FUR SEAL ARBITRATION 877
in the whole! The qaestion upon this part of the case of the
United States was, therefore, Has the United States property
in the individual seals! On this question Sir Charles asked
the tribunal *^to note the sigos of distrust" with which the
argument on the part of the United States was advanced.
At one place it was declared that the United States did not
insist upon this '-extreme point" so that they might maintain
an action of trespass for the capture of any individual seal in
the sea or an action for the recovery of its skin, because it was
"not necessary to insist upon it;" that "the conception of a
property interest in the herdj as distinct from a particular title
to every seal composing the herd," was "clear and intelligible,"
and that " a recognition of this would enable the United States
to adopt any reasonable measures for the protection of such
interest." * And in another place it was declared that while
the United States Government asserted and stood upon "the
full claim of property in the seals" which its counsel had
attempted to establish, it was "still to be borne in mind that
a more qualified right would yet be sufficient for the actual
requirements of the present case." *
At this point Sir Charles Russell said that he
^*^todiaMf ^ could not deny himself the pleasure of refer-
ring to the colloquy between Mr. Carter and
some of the members of the tribunal in relation to the fact that
the earliest known pursuit of the fur seal was pelagic, carried
on by the natives along the coast as a means of subsistence,
and as a means of affording articles for barter, and in that way
furnishing them for commerce. After quoting the passage in
which the Baron de Courcel inquired of Mr. Carter whether
there was a legal distinction "between what an Indian is allowed
to do for himself and what he may be allowed or permitted to
do in the service of an European or civilized man,"^ Sir Charles
proceeded as follows :
" My friend evades the point — does not even appreciate the
point. It is not a (question of there being greater or less diffi-
culties in dealing with barbaric tribes — it is the question
whether it is not difficult to draw the legal limitation between
what is admitted to be a thing that the Indian may do for him-
self, according to his barbaric methods, and what he may do if
' Argument of the United Staten, 1(M.
«Id. 133.
^ Supra, 861.
Digitized by LjOOQIC
878 INTERNATIONAL ARBITRATIONS.
employed at the instance of civilized man. The learned presi-
dent recalls my friend to the question with this observation :
" 'Do you find that there is a Buhstantial legal difierence between the
two cases?
" ' Mr. Carter. There is a substantial one.
"'The President. Between the case of an Indian iishinf|r on his own
account, and an Indian fishing on the account of a civilized manf
** * Mr. Carter. I think there is a very substantial one.
*' 'The President, A substantial legal ouef
" Then we get to that broad ground which is always the
refuge once we are trying to bring these vague, undeterminate
propositions to the touch of legal principle.
"'Yes/
" says Mr. Carter,
'"when I speak of ''legal" I mean moral. We are on international
grounds.' • # *
" Here we get back to that same fallacy which I have endeav-
ored to expose in a few sentences, • • ♦ that if you can
make out to your private satisfaction that a thing is against
morals, or against the law of nature (whatever the law of
nature means in the connection in which it is used) it is
therefore against international law: it is therefore to be
reprehended.
« * *
"But I do not end this discussion here. My friend Mr. Car-
ter then proceeds, it having been pointed out to him by I^ord
Hannen thtit the mode of hunting pursued by the natives was
not confined merely to their sustenance, but tliat they were the
suppliers, in the tirst instance, of the skins of these wild ani-
mals— fur-seals and others included.
'^Mr. Carter • * * said:
" ' The distinction which I mean to draw is a distinction of a resort to the
seals for the ])urpose of the personal use of the i)eople, such as they were
in the habit of making before they were discovered by civilizt^d men — the
distinction between that pursuit and tliat which is promoted by civili/ed
men for the purpose of Hn])plyiug the world with these skins. That is the
distinction. The first pursuit which is confined to the barbarians is not
destructive of the stock. Nor is the other, as long as it is Ihuitod to cer-
tain very narrow proportions and conditions.'
"Well, the whole legal proposition is given away in this
discussion. Then my friend continues:
*" But when it is increased then it docs threaten the stock. What must
you do then f You must adopt those measures which are necessary to pre-
serve the stock ; and what aru the measures which society always employs
for that purpose f I have detailed that already — it is to award the insti-
tution 01 property.'
"Now, did ever an able man present so inconsequential an
argument as that to a tribunal of intelligent judges? It is
said: *The Indians had a right to pelagic sealing: They had a
right to it, and they carried it on even for the purposes of com-
merce: Civilized men carried it on, but carried it on only to a
snuill extent, and they had a right to carry it on to a smaU
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FUR SEAL ARBITRATION. 879
extent so long as it did not affect the stock : But when it begins
to aff'ect the stock then rights change — that which was a right
the day before ceases to be a right the day after that event
begins to happen;' and this tribunal is asked to do what! —
Kot to declare what the property rights had been and were, but
is (to use the language of my friend), io award the institution
of property, I say that it is not the function of this tribunal —
it is a misconception of the function of this tribunal to address
any such argument to it."
As aflfecting the claim of property, Sir
^^^*'^*g!!jr ^' *^* Charles Eussell discussed the question as to
how the seal was to be classed. Was it a
"fish" or an "animal," and, if an animal, a "land animal" or
a " sea animal ? " In the legislation of the United States it was
spoken of in relation to " fisheries 5" but this might not be very
important. What were its natural appliances for living on
land! Could it progress on land with facility! Did it get its
support, or any part of its support, from the land! "No,"
replied Sir Charles, "the animal is one which nature has not
adapted for easy progression on land. It has got no legs; it
has got no feet. It can flop with great rapidity for a few
yards, fifty or sixty at the outside, and then falls down
exhausted; and a curious circumstance in relation to it is this,
that it is manageable on laud because it is wholly helpless
upon land, and has not been furnished by nature with appli-
ances which enable it to easily progress upon land. • ♦ ♦
On the contrary, it is admitted that upon the sea it is at home;
that it is capable of easy progression many miles in a day,
without any unusual strain upon its vital powers."
Sir Charles Kussell next discussed the
Absenoe of Care bv 1 /•••-■ ^ 1
' absence of care or industry by man in respect
of the fur seal. On this branch of the subject
his argument was as follows:
"Now, it is said that these animals resort to the islands to
breed, and resort there in compliance with what has been
picturesquely described as the * imperious instincts of their
nature.' They do.
"And when they get there, what do the representatives of
the United States do? Can they do anything to improve the
breed ! Nothing. Do they make any selection of sire and dam,
of bull and cow? Indeed, could theyf No. What do they
do! They do two things, one positive the other negative, and
two things only. The positive thing is that they do what a
preserver-game does; he has a gamekeeper to prevent poach-
ing; they have people on the islands to prevent raiding. The
Digitized by LjOOQIC
880 INTERNATIONAL ARBITRATIONS.
negative thing that they do is that they do not kill all. They
knock on the head a certain number, but exercise a certain
amount of discrimination or a large amount of discrimination.
That is the whole sum and substance of what they do, no more,
no less. * ♦ *
'^The only thing that nature does not do is that she does not
knock them on the head. * ♦ *
" Do they do anything to induce them to go there! No, they
do not. On the contrary, if they were to attempt by any kiud
of artificial means to provide for the reception of the seals, it
would have the effect of driving them away, not of inducing
them to come. Unlike the case of the bees, — the wild hive of
bees, for which the man desiring that hive provides a mechani-
cal contrivance, and also the beginning of a supply of food for
them to induce them to form their combs of honey, — unlike the
case of the doves, for which the owner supplies food and a
dovecote where they get shelter from the weather, the owners
of the Pribilof Islands do nothing; and if they were to do any-
thing, it would have the effect of repelling rather than of
inducing them to come.
**Now, let me go a little further. It is said that they come
to the islands, and I think I must refer to the very words in
which this is i)ut, — 1 could not do justice to the pathetic lan-
guage used in this case if 1 did not read it, — it is said, not only
do they come to the islands, but that they ' volunt^irily submit
themselves to the control of man,' and have entered into a kind
of treaty (*pact' I think is the actual word used) to yield up
a certain proportion of their skins in consideration of the pro-
tection that man affords them in return for it. ♦ * ♦
'' Now, what is the meaning of that phrase, ' voluntarily sub-
mit themselves to his power 'f Does it, in fact, mean more than
that they come to the islands and breed, and that, being on
the islands to breed, they can be the more readily knocked on
the head f * ♦ * They submit themselves to the control of
man just in the same sense, and in no other sense, as they
submit themselves to the control of the killer- whale when they
go out into the sea where the killer-whale can catch them.
They are safe from the killer-whale on land; but they are
obliged <by the imperious instincts of their nature,' to return
to the sea; and it would be as true to say that they voluntarily
submit themselves to the ravages of the killer- whale as to say
that by resorting to the islands they vohmtarily submit them-
selves to the control of man. You might as well say the turtle,
that comes to deposit its eggs in the sand to be hatched by the
rays of the sun, coming upon the land indeed 'by the imperi-
ous {ind unchangeable instinct of its nature' submits itself to
the control of man because man may take advantage of the
opportunity to knock it on the liead; or, as my learned friend
reminds me, may begin by turning it on its back and keeping
it on its back a certain time before it is knocked on the head.'-
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FUR SEAL ARBITRATION. 881
It was said by the Uuited States that the
tendi ^^ s^als had, by the " imperious aud unchangeable
instinct of their nature," the animum revertendi.
This contention involved, said Sir Charles Russell, "an entire
misconception of the doctrine of animus revertendV^ No case
had, he declared, been cited in which this doctrine had ever
been applied to the case of migratory animals or to any animal
unless tlie habit of returning 0])erated after a short interval,
calculated by hours or perhaps by days. Could it be applied
to the wild ducks that breed in northern Canada and at another
season go south, afterward returning to the North! Indeed,
the doctrine had no bearing on the case of an animal spending
half its life in one place and half in another. The fur seal might,
he maintained, as truly be said to have the animus revertendi
to the ocean as an animus revertendi to the Pribilof Islands.
But there was yet another ground ou which the doctrine had
been misconceived. No case had been cited where the animus
revertendi had been invoked in support of the right of property,
except where the animus had been induced by the eflfort or
industry of man. In respect of some classes of animals, such
as pheasants, rabbits, grouse, and hares, the law refused to
recognize any right of property, though there were cases in
which they were actually induced to return by having homes
and food provided for them. Yet no case had said or could say
that your neighbor might not shoot them as wild animals when
they were oft' your land.
It had been stated, continued Sir Charles
TheBightof ^oper-j^^gg^^j that the seals when on the Pribilof
ty Batione Soli. '
Islands were the absolute property of the
United States or their lessees; and the question had been
asked. If this were so, when did they cease to be their prop-
erty! There was much virtue in an "if." His learned friends
had utterly failed to grasp — he could find no trace of it in their
arguments— the distinction between the right to take a thing
when it is on your land, from which you can exclude everybody
else, «nd an absolute right of property in the thing itself. Un-
der all systems of law, the possessor of land has the right to
exclude other persons from it; aud from this it follows that he
has the right to take what is ou the land, even though it be
wild, and to exclude others from the opportunity of taking it.
But it also follows that when the wild animals are off* his land
5627 56
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882 INTERNATIONAL ARBITRATIONS.
hi8 exclasive right cea^^es. Thas it is that the own^- of the
land has a Ki>ecial right, by reason of his right of ownership,
of taking the wild animals on his land — ^the right ratione 9olL
Contrasting this right with the right of property asserted in
the seals, 8ir Charles Rassell continued :
^^ Now let us look at the question again by the light of an
application of my learned Iriend's doi'trine of profierty in
seals. What does it import ? What are the eonsec|uences of it !
• • • It leads us to those absurd consequences from which
my learned friends most naturally seek to escai>e, but from
wliicfli tliey can not escape, namely, that if there is property
on the islands there is property a thousand miles away from
the islands. And one might invent, or one might imagine, a
colloquy between a representative of the lessees of the Pribilof
Islands and a pelagic sealer off Cape Flattery. The pelagic
sealer is about to shoot a seal which he sees there, and the
agent of the lessee says: 'No, you must not; that belongs to
me.' ' Well, when did you see it last!' ^ Well, I do not know
that I ever saw it before.' * How do you know it is j'ours?'
^ Well, I can not be quite certain that it is mine. I have no
mark n|K>n it, but I think it conies from the Pribilof Islands.'
* You say the properly is yours. Do you say that that partic-
ular seal is yours?' ' Well, I can not quite say that; it is not
necessary that I should say that; but it belongs to a lot ot
seals; we call them a herd — though I can not quite undertake
to say that particular seal is mine I am pretty sure it is one of
a lot of seals that probably came from the Pribilof Islands.
You must not shoot him, because when he goes back, as I ex-
pect he will (I am not sure), by the imperious instincts of his
nature, to the Pribilof Islands I intend to knock him on the
head.' 1 need not say the seal, not interested in this discus-
sion, has meanwhile disappeared, and his life is so far pro-
Ion ge<l."
There was but one instance given in the
'^^^^^^^^^^^ Case of the United States, said Sir Charles
KuHsell, in which an attempt was made to
tame a young seal — tlie case of a pup called "Jimmie." His
mother gave birth to him away from the rookeries while on
her way from the killing grounds to the water, and he was
taken in charge by an employee of the sealing company with
a view to save his life and make a pet of him. As stated by
this witness, the pup could not be made to eat, and generally
bit those who attempted to feed him. Spoons and nursing
bottles were tried in vain; and after two weeks or more of
futile efforts a flexible tube was put down his throat, and by
means of a syringe a pint of fresh cow's milk was injected into
his stomach. After the operation he showed '*in the most
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 883
unmistakable maimer the greatest of seal delight,^ by lying
on his back and side, bleating and fanning and scratching
himself. The next morning he was dead. Sir Charles Russell
contrasted with this narrative of the attempt to tame a seal
the statement of another employee of the company, who de-
clared that the seals during the first two or three months of
their lives were ^'as gentle and docile as most domestic ani-
mals;'' that they might be "handled and petted," and would
"accept food at one's hands;" that they could be taught "to
follow one from place to place;" that they were, even at a
mature age, " subject to as much control" as "sheep or cattle,"
so that they might be "herded" and "driven;" and that, "far
from possessing that excessive timidity which has been popu-
larly attributed to thein," they " soon grow accustomed to the
sight of man," and, "in the absence of offensive demonstration
on his part," quickly learn " to regard his proximity with indif-
ference." This was, said Sir Charles Russell, the strongest
statement he had been able to find as to the domestic charac-
ter of the animal ; and be contrasted with it another statement
of the same witness, made with a view to show the great
vitality of the seal and its freedom from injury by driving and
redriving. The purport of tlie statement was that on a certain
occasion "a drove of about 3,000 bachelors," having been left
in charge of a negligent boy, "escaped from his control" and
"plunged over a cliff, falling 60 feet over broken stones and
rocks along the shore;" but that only seven of them were
killed, and those probably by being " smothered " by others
falling on them, while all the rest took to the water. "These
are the animals," commented Sir Charles Russell, "which are
easily handled, but which, actually, in order to escape from
man, will jump down a cliff 60 feet, pell-mell, helter-skelter,
upon the top of one another; and yet they are said to be so
easy to control that you may drive them and round them up
as you would round up cattle upon the plains." Moreover,
there was, he declared, a single fact which rendered their
complete domestication impossible, and that was that if you
attempted to keep them under control and on land they would
inevitai)ly die. By "the imperious necessity of their nature,"
they must go to sea. Taking the facts which were not in dis-
pute concerning the seal, who doubted that it wsLSferce naturce f
There were three classes of animals — wild animals, domestic
animals, and animals which, while classified as wild, had been
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884 INTERNATIONAL ARBITRATIONS.
taken out of that class by reclamation, so that tbey had ceased
to be wild. Was it gravely to be said that seals were tame
animals! Had the United States even professed to tame them Y
Had they alleged, and could they truly allege, anything more
than that, by reason of the incapacity of the animal to defend
himself on land, he could easily be killed with a club?
To the alleged intermingling of the fur-seal
^e^flc^t^wt' ^®^^®? ®^^ Charles lluasell referred not as an
'^ admitted fact," but as one in regard to which
there was "a body of evidence." If there was any intermin-
gling or interbreeding, to however limited a degree, it rendered,
he said, the assertion of property in the individual seal hope-
less, since, while the United States might say, '^ These seals
are the result of breeding upon the Pribilof Islands," Kusaia
might equally claim that they were bred on the Commander
Islands. Any uncertainty as to identification must have a
most important bearing on the claim of property in the indi-
vidual seals. If the United States owned one of the Pribilof
Islands and Bussia the other, or if the islands were separately
leased to two lessees, would it be possible to assert, even inter
86 J the right of property in individual seals, in Behring Sea or
outside of it, as belonging either to the one or to the other!
Or, if the dominium utile of the islands was in a private owner,
and only the sovereignty in the United States, could such owner
assert a property in the individual seals frequenting them
wherever they might be found!
Having shown, as he contended, that the seal
roperty epen ent ^^s/ero? naturw and that there was no abso-
upon Mozucipal Law.
lute property in it, but only a right to kill it
even when it was on the laud. Sir Charles Bussell said that
counsel for the United States, knowing the municipal law of
the United States to be the same as that of Great Britain on
the subject, had declared that it was.not a matter to be deter-
mined by municipal law, but a matter to be determined by inter-
national law. " I dispute that proposition," said Sir Charles.
'<What has international law to do with it!" Continuing, he
said :
"Am I not well founded in saying that by the municipal law
of every country in the world, the riglit to property in things
must be made out according to the municipal law of the place
where the property is situated, subject always to certain rules
as to devolution, etc., with which we are not now concerned,
founded upon the principle that mobilia sequuntur pergwaamf
They must have their right of title by municipal law. Does
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PUR SEAL ARBITRATION. 885
the United States municipal law give tbem property? No.
The legislation even of the United States has not affected to
give property. The United States legislation has proceeded
upon the principle which I have so often adverted to, of the
assertion of territorial dominion over a given area, and the
application of what I may call game laws to that area; but it
has not in its statutes nor by any executive act, nor by lease,
nor in any other mode, affected to claim for itself the property
as such, nor to give to the lessees the property as such. They
give to the lessees no more than they had themselves: aright^
namely, a liceuvse to kill within certain limits as to number.
" Senator Morgan. I was about to inquire whether all game
laws were not predicated upon the ultimate ownership of the
property in the sovereign !
" Sir Charles Kussell. No, sir; they are not. There are
certain classes of animals, which unquestionably in ancient
days — the subject is almost without interest in these times —
the taking or killing of which were within the exclusive grant
and right and franchise of the sovereign — the sturgeon was a
royal fish, the swan was a royal bird. These were the only
exceptions that I can for the moment call to mind. • * *
" But the game laws of different countries have nothing to
do with the question of property in the wild animals. Their
sole operation is that the hand of the slayer shall be stayed for
a certain period of the year; that within the defined period
called the* 'close time,' he shall not be at liberty to exercise
that right of killing which the law itself recognizes; but it
does not touch, it does not affect in any way the question of
property. * * ♦ Indeed I may remind Senator Morgan that
the term that is used to describe wild animals with reference
to the rights of others is borrowed from the civil law. 1 hey
are described as res nuUius^ and therefore a thing which any-
one may capture; a thing which the man who first possesses
and captures may acquire the proi)erty in."
In this relation Sii- Charles Russell examined the authorities
of the United States on the subject of property in animals, and
maintained that there could be no right of property in fur seals
except when they were reduced to possession. While he was
discussing the Case of the Sicans,^ Baron de Courcel inquired
whether, as the white swan was considered a royal bird, the
property of the King in it was an absolute right which could
be vindicated outside of the realm. On the next morning
Sir Charles, in repl}', read from Ohitty's Prerogatives of the
Crown' the following passage:
*'The King has no general property in fish. It wonld be snperfluons to
specify and particularly desi^niite whales and sturgeons alone, as being
royal tish, if all fish were the Kin^y's property. Exceptio probat regulam.
» 7 Coke, 15 b. ^ Edition of 1820, 114.
Digitized by LjOOQIC
886 INTERNATIONAL ARBITRATIONS.
With respect, however, to whales and sturgeons, it was always a doctrine
of the common law that they belonj^ to the King. And by the statute
De Prerogativd Regis, it is declared that tbe King shall have whales and
stnrgeons taken in the sea or elsewhere, within the realm, except in cer-
tain places privileged by the King. Bnt to givi^ the Crown a right to such
fish tney must be taken within the seas parcel of the dominions and Crown
of England, or in creeks or arms thereof; for if taken in the wide seas or
out of the precinct of the seas subject to the Crown of England, they belong
to the taker. A subject may possess this royal perquisite ; first, by grant :
secondly, by prescription within the shore, between the high-water and
low-water mark, or in a certain diatriota$ marU, or in a port, creek, or arm
of the sea; and this may be had la gross or as appurtenant to an honour,
manor or hundred.
** Under this head may also be mentioned the right of the King to swans,
being inhabitants of rivers. By the statute 22 Edward IV., chapter 6, ' no
person other than the son of the King shall have any mark or game of
swans, except he have lands of freehold to the yearly value of five marks;
and if any person not having lauds to the said yearly value shall have any
such mark or game, it shall oe lawful to any of the King's subjects having
lands to the said value to seize the swans as forfeits, whereof the King
shall have one-hulf and he that shall seize the other.' A subject may,
however, be entitled to swans; first, when they are tame; in which case
he has exactly the same property iu them as he has in any other tame ani-
mal ; secondly, by a grant of swan mark from the King; in which case all
the swans marked with such mark shall be the subject's, wheresoever they
fly ; and, thirdly, a subject may claim a property in swans ratione privilegii,
as if the King grant to a subject the game of wild swan in a river."
After reading this passage, Sir Charles Russell said that in
the nature of things the law must be as stated in it, since those
who owed no allegiance to the state were not required to
respect special claims of right dependent upon its laws. The
following dialogue then took place:
" Lord Hannen. If a royal swan at large in the country
where the King had the right to swans escaped to another
country where the other King had the same right to swans at
large, which King would the swan belong to!
*' Sir Charles Russell. Quite so, my lord. For myself I
should be prepared to back the right of the King in whose ter-
ritory it was found.
" The President. Well, Sir Charles, I thank you very much
for the explanation. It has been very useful to me, at any rate.
I believe the law is the same law that formerly prevailed in
France under the feudal system, by which tbe right of chase
and hunting was derived from the regalian right; and I believe
the regalian right was exactly the same as that defined in the
law of England which you have just read."
Mr. Carter had contended, said Sir Charles
'*^.«^^**^*^ » ^' Russell, that whenever a man was capable of
"Husbandry." '
establishing a husbandry in respect of an ani-
mal commonly designated as wild, so that he could take the
increase, that fact would give him property in such animal. If
this proposition were true, it would give an absolute ownership
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FUR SEAL ARBITRATION. 887
of pheasants to the person who reared them on his estate. So
in the case of rabbits. A man may establish an industry in a
rabbit warren. So in the case of grouse. A man may kill
only his cock birds. So in the case of wild deer, in an unin-
closed park; he may kill only his bucks. "This argument,"
said Sir Charles, "would land my learned friend, therefore, in
the proposition that as regards all these animals, which are
admittedly of the class of animals ferce naturce^ which are ad-
mittedly not domesticated, but which are 'cherished' in a higher
sense than the seals are cherished, for they are fed and induced
to come back to this place — all these animals would become
the subjects of private property."
Taking up the argument of Mr. Carter, that
Limitations of th6 Do- • -■ /. i > -. . •■ ■*
«•••« 'TU' property m animals useful to mankind and
minion over Tniiigs. ,
exhaustible in their nature is by law given to
him who can best utilize such animals for the benefit of man-
kind by taking the increase and preserving the stock. Sir
Charles Russell said:
" Now, I want to know where has any municipal law of any
country, excei)tthe special statute of the United States in rela-
tion to female seals, prohibited the killing of females: any
municipal law, to begin with ! I do not know of any. * * *
Is there any such principle to be found in international law?
♦ * * 1 know of none.
" Senator Morgan. I think all the game laws applicable to
what we rail terrestrial animals — birds and deer and the like —
have very distinct reference to protecting the breeding season
or nesting season. I suppose that is for the purpose of pro-
tecting the females that they may rear their young.
" Sir Charles Russell. I quite agree; undoubtedly, that is
the object of a close season — not to interfere with the process
of nature in producing their young; but there is no ques-
tion of property involved; it is a question of municipal regula-
tions. * * ♦
'*I want to follow this reference of my learned friend a little
more. ♦ * * He is asking what is the extent of the domin-
ion which is given by the law of nature to the owner of prop-
erty. He there says :
" 'No possessor of property, whether an individnl man or a nation, has
an absolute title to it. His title is coupled with a trust for the benefit of
mankind.'
" That is his first proposition.
" * Second. The title is further limited. The things themselves are not
given him, but only the usufruct or increase. He is but the custodian of the
stock, or principal thing, holding it in trust for the present and future
generations of man.'
Digitized by LjOOQIC
888 INTERNATIONAL ARBITRATIONS.
" That may be all very well as a question of ethics. It is not
law. I apply it to a concrete illustration straight away.
♦ * * I affirm, as my learned friends have affirmed, that
the United States would have a right if they chose — a right in
point of law, * * * to knock on the head every seal that
came to the islands; and my learned friends have claimed it,
for they have, I will not say threatened, but suggC'^ted it to
the Tribunal as a thing to weigh with it in arriving at its
decision.
" Mr. Carter. We have not asserted that right * ♦ •
" Sir Charles Russell. What is it if it is not an assertion T
" The President. — Call it a hint.
"Sir Charles Russell. Very well, I will call it a hint.
* * * But my friend carries, quite logically, his argument
still further; and from individuals restricted to usufruct (which
I say is not the law), he passes on to the question of what
nations may do with regard to their property or their posses-
sions; and * * ♦ he proceeds to lay down a series of ex-
traordinary propositions to this effect: That if a particular
nation produces a particular commodity the rest of the world
can, as of right, compel that nation to part with its commodity
for the benefit of the world. lie instanced the case of india-
rubber; he instanced the case of tea. Why not instance the
case of Bordeaux wine, or any other wine, or any other com-
modity? ♦ ♦ * My learned friend admitted it could fix its
own price, but he put a qualification on that — so long as it is
not prohibitory. Who is to be the judge of whether it is pro-
hibitory or not? All this, I say, is enough to show the Tri-
bunal that my learned friend is in all this discussion arguing
as a great thinker, adopting the thoughts of great thinkers on
ethical and metaphysical subjects, and api)lying ethics and
metaphysics to law. * * ♦ if one comes to the basis of his
argument, one fails to see why, if there be any principle in it
at all, it is to be confined to one class of animals. Why is it to
be confined to animals at allf If usufruct only of property is
to be allowed, why may a man eat up all his capital! * ♦ •
It looks to me, indeed, as if this proposition, that property in
animals useful to mankind, exhaustible in their nature, is to
vest in him who can best utilize such animals and preserve
the stock, was a proposition invented to meet the case of fur
seals, invented for the occasion, and ingeniously invented for
the purpose of evading the difficulties which stared my friend
in the face. ♦ * * Pushed to its legitimate result, ♦ ♦ *
it would result in the affirmation of a principle that property
should be attributed to him, or to the nation, that can best
turn it to account: a proposition of a very wide character,
which would lead to the transfer of a good deal of the world's
possessions from the hands that now possess them to others,
but for which no warrant is to be found in any system of juris-
prudence that I am aware of, and which international law has
never even made any approach to recognizing.^
Digitized by LjOOQIC
PUB SEAL ARBITRATION. 889
Having discussed the question of property
TheSMlinglndiutry. in seals tu its various aspects, Sir Charles
Kussell said that he came to << the last ground
on which the pretensions of the United States are based in
argument" — the proposition which Mr. Phelps had specially
taken under his protection — namely, that pelagic sealing in-
terfered with a legal right in the industry, as it had been called,
said to be carried on on the Pribilof Islands. On this sub-
ject, the argument of Sir Oharles Eussell ran as follows:
^^ I have to assume, and the proposition that my learned
friend advanced assumes, that there is no property in the seal,
and no property in the seal herd. I have also a right to assume
that the general right of fishing acknowledged by the treaty
of 1824 between liussi.b and the United States, and the same
general right of fishing acknowledged by the treaty of 1825
between Russia and Great Britain, did not except any living
thing in the sea. I have further to assume that that was but
a recognition, in the case of the waters of Behring Sea and the
other waters involved in the controversy which led up to those
treaties, of the general right of all mankind to fish in the sea
and to take therefrom outside territorial waters whatever they
are able to capture. These are the hypotheses, these are the
data, in view of which this proposition must be approached;
and I say it without any affectation, with the greatest respect
for my learned friend Mr. Phelps and for his ingenuity, that I
find it difficult to understand and to appreciate what it is that
I have to meet on this part of the case. The lessees may be
treated, tor the purpose of this discussion, as the owners of
the islands and the owners of the industry. What is their
position! • • ♦ These are their rights fully and exhaust-
ively stated : their right to kill the seals upon the land — an
exclusive right; the right to kill within the territorial waters —
an exclusive right; their right, on terms of equality with all
whose interest or convenience may prompt them to resort to
the high seas, to pursue and kill the seal.
" Where is the right that is invaded by that pelagic sealingt
• * ♦ It is not enough to prove that their industry (if I
must use that phrase) m.iy be less profitable to them because
other persons, in the exercise of the right of sealing on the
high seas, may intercept seals that come to them — that may
be what lawyers call a damnum^ but it is not an injuria. • • ♦
Let me assume that the island is divided by a boundary line,
between two owners, one half of the island given to A, the
other half given to B. Would A have an action against B —
could he complain that B had perpetrated a legal injury upon
him if B not merely killed the seals that came to his own divi-
sion of the island, but exercised his right of sealing on the sea
and killed seals there which might have gone, or some of which
might have gone, to the land of A — ^if B had, in other words,
Digitized by LjOOQIC
890 INTERNATIONAL ARBITRATIONS.
exercised bis right to kill on the high sea? That woald have
been a case in which the profits or the volume of A's business
might have been diminished, and he would, therefore, have
suffered a loss, a damnum; but a damnum does not give a legal
right of action. ♦ ♦ ♦
" The President. Unless done maliciously.
" Sir Charles Russell. You are good enough, Mr. President,
to anticipate the very next topic — perhaps not immediately the
next, but a topic to which I am going in a moment to advert
* ♦ * They would have a right to complain (and this meets
the whole of the illustrations which all the ingenuity of my
learned friends have 8Ui)plied) if it could be truly asserted
that any class or set of men had, for the malicious purpose of
injuring the lessees of the Pribilof Islands and not in regard
to their own profit and interest and in exercise of their own
supposed rights, committed a series of acts injurious to the
tenants of the Pribilof Islands. I agree that that would
probably give a cause of action; and, therefore, they have the
further right (what I might call the negative right) of being
protected against malicious injury. ♦ * »
"Lord Hannen. I follow your argument so far, but does
that argument meet an illustration of Mr. Phelps! Suppose
dynamite was used for the same purpose and resulted in the
wholesale destruction of fish, that would not be malicious, be-
cause it was done for the purpose of immediate gain. What
would you say to that caset
'*Sir Charles Russell. I have not forgotten that illustra-
tion, and as you mention it, my lord, I will come to it at once.
* * ♦ To begin with, I should say that it might be very
strong evidence, as one would say in our English courts, to go
to the jury, of malice; but it is not every act which causes
destruction, and even destruction which may be dispropor-
tionate to the gain derived, which constitutes an actionable
wrong. ♦ ♦ • Take, for instance, the mode of fishing
known as trawling. I think you all realize what trawling is:
that mode of fishing — dragging a heavy beam with a net along
the bottom — has the effect of destroying enormous quantities
of small fish and, still more, of disturbing spawning grounds,
and causing an enormous amount of mischief in the destruc-
tion of fish. Has any international law ever declared, or has
any nation ever asserted that that destruction outside its ter-
ritorial limits — because trawling goes on many miles out at
sea and in very deep waters — would give a cause of interna-
tional complaint as a matter of right against the trawlers of
another nation? No, because on the high sea all are equal;
and although that particular method is a destructive method,
the case is met in the only way in which it can be met, by reg-
ulations, by conventions, but not by the assertion of a legal
right to prevent the trawling, even although it cause that
great mischief.
"Then may I also put the question with reference to the use
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FUR SEAL ARBITRATION. 891
of dynamite from another point of view! One might use dy-
namite for the purpose of trying some very important experi-
ment, or testing wome important invention connected with
war — torpedo experiments, or what not — these may be tried
u|)on the high seas, outside territorial waters; and yet such
experiments may be conducted in such a position as regards
an adjoining nation that very considerable mischief may be
done temporarily to the fishing interests of that particular
nation. But that would be a perfectly legitimate use of the
high sea. • • ♦
"Always bearing in mind that we are arguing upon the
assumption of no property and no exclusive right, let us see
what would be the consequences of this new principle which
is asserted. Where will it land us! Just let me put some of
the cases. Take that large and increasing volume of indus-
tries carried on upon the west coast of America, and along the
coast of British Cohimbia, and stretching farther north along
the Alaskan coast, known as the salmon-canning indastries.
* * * Supposing by some modern system and improved
method of catching salmon, neighboring nations should be
attracted to the fishing, and, catching large numbers outside
the territorial waters, should intercept the salmon on their way
up the rivers where they would be brought within the reach of
this industry: is it to be said because the canning industry
would be thereby injured, that there would be a legal right to
prevent the fishers from operating outside the territorial wat* rs
on the ground that they prevented the salmon coming up the
river to the place where they could be more conveniently
caught f » * » Or again, take the caseof a game preserver,
and there are such in England, who does not preserve game
merely for the sake of shooting the game, but who makes a
trade of preserving game. They shoot the birds, and thereby
they get sport out of them ; but they send their game regu-
larly to market, making the best profit they can out of their
business. I have already dwelt upon how much greater care
and expense and cultivation, or, to use an expression dear to
my learned friends, how much more ^cherishing' the action of
the game preserver in the matter of pheasants is than it is
possible for the action of the United States or their lessees to
be; how the game preserver takes the eggs away from the
nest to induce the bird to lay more than it otherwise would;
how he places them under an ordinary fowl, and in that way
rears them ; how he feeds them and keeps them until they grow
up, and he kills them; and yet when the birds go ofi' his land
upon the land of another, has it ever been heard, could it even be
suggested, that this industry of sending his pheasants to mar-
ket was injured in point of law because his unneighborly neigh-
bors in the open common adjoining waited until his birds escaped
from his land, or were on the way back to it, and shot them
there, thereby lessening his profitsi The cases are absolutely
analogous, but the case of the pheasants is much stronger."
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892 INTERNATIONAL ARBITRATIONS.
The establishment of an industry, however,
^^^^toteT*^ being assamed, Mr. Phelps, said Sir Charles
Bussell, proceeded to consider the question as
to what a state might do in time of pe.ace for the protection
of that industry. The fundamental fallacy in the argument of
the United States on this question was, said Sir Charles Bus-
sell, that a state had under international law a right in time
of peace to do on the high seas, as an act of " self-defense"
or "self-preservation,'' whatever it might conceive to be neces-
sary to protect its property or its interests. This he considered
an unsound proposition. By far the greatest number of
instances recognized by international law of rights of self
defense or self-preservation were cases of belligerent rights,
which rested on the true basis of all exceptional acts of self-
defense or self-preservation — the genuine emergency of danger.
But even as to belligerent rights there were very clear limita-
tions. Pursuing this subject, Sir Charles Bussell said:
"Again, take the case of the revenue laws — the hovering
acts, which are referred to in the argument, as if they afforded
some justification for the position of the United States as to
self-defense or self-preservation. Upon what principle do
those acts rest! On the principle that no civilized state wiU
encourage offenses against the laws of another state the jus-
tice of which laws it recognizes. It willingly allows a foreign
state to take reasonable measures of prevention within a
moderate distance even outside territoral waters; but all these
offenses, and all offenses of the same class and character relat-
ing to revenue and to trade, are mea;^ures directed against a
breach of the law contemplated to be consummated within the
territory, to the prevention of an offense against the municipal
law within the area to which the municipal law properly
extends. But it does not follow that all acts of this kind will
in all cases meet with assent. It certainly would not, and
could not be expected to meet with assent, if the • * »
acts were attempted to be enforced at a considerable distance
f^om land, and I affirm that in no such case by international
law could it be maintained as of right against an objecting
nation.
"And, indeed, as I read my friend Mr. Phelps's argument
upon this point, he seems to admit that that is the true view;
because on pages 170 and 171 my friend, dealing with one of
the contentions advanced on the part of Great Britain, says:
'' 'An effort is made in the British Counter Case to diminish the force of
the various statutes, regulations, and decrees above cited^ by the sugges-
tion that they only take effect within the municipal jarisdiction of the
countries where they are promulgated, and upon the citizens of those
countries outside the territorial limits of such jurisdiction.'
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FUR SEAL ARBITRATION. 893
"Then my friend proceeds:
" ' In their strictly legal character as statntes, this is true. No authority
need have been prodaced on that point. Bat the distinction has already
been pointed out, which attends the operation of such enactments for
such purposes. Within the territory where they prevail, and upon its
subjects, they are binding as statutes, whether reasonable and necessary
or not.'
" That is true. Then he goes on to say * without; ' that is to
say, outside the territory:
<< < Without, they become defensive regulations, which if they are reason-
able and necessary for the defense of a national interest or right, will be
submitted to by other nations, and if not, may bo enforced by the govern-
ment at its discretion. • • • '
" I need not say, therefore, that my friend's proposition con-
sists of two brauches — first of all, that a defensive regulation
which is reasonable and necessary will be submitted to; sec-
ondly, that if it is not submitted to, the nation has, in order to
compel assent, the resort to force alone — which is war, * * ♦
Is there any precedent in any book of authority or in any in-
ternational controversy in which a statute assuming to exer-
cise authority over a territorial area has ever been regarded as
a protective or self defensive regulation f * * * Nay, I will
suggest further that the very idea of defensive regulation, or
defensive act, or self preservative act, repels the idea of cut
and dried, formulated rules. • ♦ •
"Take, again, the pursuit of vessels out of the territorial
waters, but which have committed an offense against munici-
pal law within territorial waters — which is a case which my
learned friend and myself (and I have no doubt my learned
friends on the other side) have had frequent occasion to con-
sider. Here, again, there is a general consent on the part
of nations to the action of a state pursuing a vessel under
such circumstances, out of its territorial waters and on to the
high sea.
" Senator Morgan. You mean a consent by acquiescence!
" Sir Charles Russell. A consent by acquiescence.
"The President. And not in every case?
"Sir Charles Kussell. No; certainly not in every case.
I will state — although not perhaps exhaustively— some of the
leading conditions. * ♦ • As to that, it must be a hot pur-
suit, it must be immediate, and it must be within limits of mod-
eration. In other words, we are still considering the character
of the act which is not defined by international law, which is
not a strict right by international law, but which is something
tchich nations will stand by and see done, and not interpose %f
they think that the particular person ha^s been endeavoring to
commit a fraud against the laws of a friendly power.
" Senator Morgan. That relates to the morality of the act.
"Sir Charles Russell. To some extent, undoubtedly.
The particular nation would undoubtedly be guided in its ac-
quiescence or nonacquiescence according to its view of the
Digitized by LjOOQIC
894 INTERNATIONAL ARBITRATIONS.
morality or immorality of the particular conduct pursued — ac-
cording to its view of the justice or injustice, reasonableness
or unreasonableness, of the particular law, * • • But I
submit that it has never been suggested, still less agreed to
by nations, that a particular power may judge for itself of the
inconvenience it is suft'ering from the action of another power
on the high seas, and put down that action with a high hand.
Any such general i)roposition is unsound. • * ♦ And the
restricted proi)08ition whicli we state, and by which we stand,
is, that in such a case as the present, where there was no such
instant overwhelming necessity of selfdefense, where there
icds time for devi(;e of means, where there wan time for de-
liberation, where there was time for diplomatic exi>ostulation
and representation, that it is idle to try to treat this case
as a case of necessary self-defense or self preservation. For
be it recollected that beyond the fact of the legislation, which
was professedly a territorial legislation, and a territorial leg-
islation only: and beyond the fact of the seizures, which were
made upon the basis of the assertion of that territorial legis-
lation, there was, before these seizures began, no representa-
tion made to Great Britain by the United States that she
regarded this as a nmtter of national interest by which, right
or wrong, they were determined to stand. And up to the pres-
ent time even there has been no such representation. • ♦ ♦
*'I may be asked, finally, May there not be caaes in which,
although it may not be possible to formulate the interests of a
nation under any recognized head of law, municipally or inter-
nationally regarded : yet may there not be cases in which tiiere
may be great interests of a nation which yet call for and mor-
ally justify that nation in ac;ting, and acting in assertion of
those interests and in defense of themt Yes; there are such
cases; but what are tlieyf They are cases which rest upon
the very same principle upon which nations have been driven,
sometimes justly, sometimes unjustly, to defend territory which
they have acquired, or to acquire territory in which they have
by international law no right, but which, either in pursuit of a
great ambition, or in the gratification of ra<ial antipathy, or
under the influence of the ambition of a great potentate, they
choose to think is necessary for the well-being and safety of
the nation. But tbat is not international law, or international
right. That is war, and is defended as wai*, and justified as
war alone.
''And 1 do not hesitate, Mr. President, to follow out this
illustration to its conclusion. 1 do not hesitate to take the
concrete case of these seals. It would be remarkable if they
did it; they would be very unwise if they did it— extremely
foolish if they did it — if 1 may respectfully say so. But the
United States might choose to say : We regard the interests of
fur sealing as of so great a nuignitude, as of so much impor-
tance to the well being of our great community, as so important
to the advancing interests of civilization the world over, that
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 895
we will assert, right or wrong, our claim against the world to
protect the fur seals in Behring Sea, or miles away from the
Behring Sea.
" But that would be war.
"And there is another side to the question. Great Britain
might choose to say : We consider the interests involved in this
question as very great and very important — not merely to the
interests of the Canadians, to the interests of a rising colony;
but in view of the broader and greater principle which we
conceive to be involved, the interference with the equality of
all nations on the high sea, the attempt by one nation to usurp
special privileges and special powers on the high sea. We
consider that question to be of so great importance that we will
defend it by force.
"But that, again, is war.''
Having discussed the right alleged to pre-
Examination of the y^nt by acts of force on the high seas inter-
Authonties^cit^d f^j,^,^^.^ ^^^^^ ^^^ sealing industry on the
sutes. Pribilof Islands, Sir Charles Russell proceeded
to examine the authorities cited by coun-
sel for the United States in support of that position. The
first case was that of Amelia Island. As stated in the Argu-
ment of the United States, this island, which then belonged to
Spain, was seized in 1817 by a **band of buccaneers," who,
" in the name of" certain " insurgent" Spanish colonies, " preyed
indiscriminately on the commerce of Spain and of the United
States J " and the "Spanish Government not being able or will-
ing to drive them oft', and the nuisance being one which required
immediate action," President Monroe ''directed that a vessel
of war should proceed to the island and expel the marauders,
destroying their works and vessels." Upon the mere state-
ment of the case, said Sir Charles Eussell, it appeared that the
act in question was in the nature of a belligerent act, (Baron
de Courcel suggested that it *'was rather au act of military
execution than of belligerency,") directed to putting down
persons who were mere adventurers, assuming without au-
thority to exercise jurisdiction, and who were committing
what might be called acts of land piracy. The next case was
that of the steamer Caroline. This was the case of a vessel
in the service of persons who were acting in sympathy with a
rebellion in Canada; and while she was lying on the American
side of the Niagara Kiver the Canadian authorities, said Sir
Charles Russell, "sent down an armed force, took possession
of the vessel, and being unable to take her away, they destroyed
Digitized by LjOOQIC
896 INTERNATIONAL ARBITRATIONS.
her as an engine of offense directed against" Canad<% Mr.
Webster, discnssing the case as Secretary of State, said:
"Under tliose circumstances, and under those immediately
connected with the transaction itself, it will be for Her Maj-
esty's government to show upon what state of facts and what
rules of international law the destruction of the Caroline is to
be defended. It will be for that government to show a necessity
of self-defense, iustant, overwhelming, leaving no choice of
means and no moment for deliberation." The next case cited
was that of the destruction of the fort on the Appalachicola
Eiver — "a case," said Sir Charles Russell, "shortly stated, of
putting down a band of marauders." The next case was that
of the bombardment of Greytown. As it was stated by Presi-
dent Pierce in a message to Congress, a baud of adventurers,
"at first pretending to act as the subjects of the fictitious
sovereign of the Mosquito Indians," but subsequently "repu-
diating the control of any power whatever" and declaring
themselves "an independent sovereign state," took possession
of Greytown, on the interoceanic transit route, "in open defi-
ance of the state or states of Central America." Subsequently
they attempted to demolish the establishment of the American
Transit Company at Punta Arenas, but in this design were
defeated by the interposition of a United States man-of-war.
Various acts of predatory violence were alleged against them,
and President Pierce, in justification of the bombardment,
declared that the "pretended community" was "in fact a ma-
rauding establishment too dangerous to be disregarded, and
too guilty to pass unpunished, and yet incapable of being
treated in any other way than as a piratical resort of outlaws,
or a camp of savages, depredating on emigrant trains or cara-
vans and the frontier settlements of civilized states." "The
bearing of this illustration," said Sir Charles Eussell, "upon
the question of seizing and C;Onfiscating a ship because it
caught or was about to catch a seal, half a dozen or a dozen
seals — I suppose the number makes no dift'erence — seems some-
what remote." The argument of the United States also refer-
red to the orders in council of 1809. This was, said Sir Charles
Eussell, "touching on a very sore subject," though its soreness
had been somewhat mitigated by time. One great power was
at war, practically, with a combination of other European
powers. The Emperor Napoleon had prohibited British com-
merce with certain ports and, as a retaliatory measure of war.
Digitized by LjOOQ IC
FUR SEAL ARBITRATION. 897
the British orders in coaiicil were issued. It was *^act against
act, the powers were involved in a struggle for mastery, each
doing what it could to minimize the enemy's powers of resist-
ance and attack. * * • And this, again, was war." Con-
tinuing, Sir Charles Eussell said :
" i^ow, Mr. President, I come to a reference on page 155 [of the
United States Argument] which is of quite a diflFerent charac-
ter, introduced here strangely out of its order as it seems to
me. It is a statement, and, as we conceive, an entirely mislead-
ing statement as to the views asserted by Great Britain in rela-
tion to rights of fishery off the coast of Newfoundland and Nova
Scotia. ♦ ♦ ♦ We should be quite content to have the law
which applies and exists, and the rights that are claimed in
respect of the fisheries of Newfoundland and Nova Scotia,
applied to the controversy which we are here engaged upon.
• • • As a matter of fact, for years upon the banks of New-
foundland, and without any question, outside the territorial
limit, the fishermen of France, of the United States, of Canada,
and of Great Britain are to be found pursuing their calling.
• • • There were certain treaty rights, but that is ancient
history. • ♦ • Of course, when the United States became
an independent power, one of the family of nations, it would
have, in virtue of its sovereignty, the right to claim the free
use of the high seas; but the point is this: that, from 1783
down through the whole of this negotiation. Great Britain has
never asserted, and the United States has never alleged that
she was asserting, that the right of fishery in the non-territorial
waters was not a right that belonged to every independent
nation. That is the point.
" Senator Morgan. Do you mean she has abandoned it since
1783?
" Sir Charles Ri ssell. I do not know that that would be
appropriate language. So far as I have read the history of it,
there was no assertion of it: certainly not since 1783. » * *
First of all, the Treaty of 1783 shows it, as it seems to me; but
here is the oificial statement: » * •
" In 1815 Lord Bathurst's letter to the United States Minister
says:
" ' But the rights acknowleged by the treaty of 1783 are not only dis-
tinguishable from the liberties conceded by J;ho same treaty and the founda-
tion upon which tbey stand, but they are chiefly distinguished in the
treaty of 1783 itself. * * * In the third article Great Britain acknowl-
edges the riffht of the United States to take fish on the banks of Newfound-
land and other places from which Great Britain has no right to exclude
an independent nation, but they are to have the liberty to cure and dry
them at certain unsettled places within His Majesty's t(*rritory.'
"I think, even if that right was asserted at some earlier
period, Senator Morgan will see that that is a clear abandon-
ment.
"I leave this branch of the subject by expressing my agree-
5627 57
Digitized by VjOOQ IC
898 INTERNATIONAL ARBITRATIONS.
ment with the opinion stated on page 157 of the ITnited States
Argument, that there c<an not be one international law for the
Atlantic, and one for the Pacific, and I agree the law is the
same for each — that outside the territorial limits there is an
unrestricted right and liberty for all mankind to take what it
can from the bosom of the sea. • • *
"The next subject that is dealt with as to self-preservation
in time of jjeace is the law of quarantine. • * • The Brit-
ish statute is the 6th of George the Fourth, chapter 78, passed in
1825. ♦ ♦ • First of all, the act deals with vessels coming to
the shores of a particular nation in the same way as the hovering
acts. It deals, therefore, solely with vessels coming to British
ports. • • • Vessels liable t<:> quarantine, that is, vessels
or receiving boats coming to United Kingdom ports, • • •
are to hoist quarantine signals on meeting any other vessel at
sea or when they are within two leagues of the United King-
dom coast. Signals are to be continued so long as the meeting
vessel continues in sight, or the vessel itself remains within
two leagues of the coast of the United Kingdom, and until the
vessel shall have arrived in a United Kingdom port; and if it
fails to do that there is a penalty of £100 fixed for it; and that
applies to all ships. How is this penalty to be recovered i It
never can touch any vessel that does not come to the port, be-
cause, under section 35, the only remedy for the recovery of
the penalty is by proceeding in a local court against the captain
of the vessel. • ♦ *
"Further, vessels having infectious disease on board are re-
quired to hoist a signal when they meet any other vessel at sea
or are within two leagues of the Unit-ed Kingdom coast; and
the signal is to remain hoisted so long as the meeting vessel
remains in sight, or the vessel itself remains within two leagues
of the United Kingdom coast while so in sight or within such
distance, until it shall have arrived at the port where it has
to perform quarantine. This is the whole of the statute^ I
think. ♦ • ♦ I am quite unable to appreciate what is in
my friend's mind about this. Does he suggest that, under this
law, we could go outside territorial waters and seize the ship —
for instance, a ship that was passing through the British Chan-
nel, beyond the three mile limit, on its way to some European
portt Does he suggest that we could under this statute go
outside the territorial limits and seize that ship, because she
had not hoisted a signal f • 8u(*h a thing would be impossible.
The statute creates a penalty, a ])enalty only recoverable
against the captain, and only recoverable in a municipal coart,
when the ship arrives within the territory."
Sir Charles Russell took issue with Mr,
e 0 im- pjj^ipg^g contention that the right of visitation
and search was not confined to a time of war,
as well as with the latter\s statement, made with reference to
the British claim of impressment: "Though the war grew out
Digitized by VjOOQ IC
FUR SEAL ARBITRATION. 899
of this claim, it was not relinquished by Great Britain when a
treaty of peace was made. It has been disused, but never
abaudoned." Was it correct, asked Sir Charles Russell, while
admitting that war grew out of the claim, and that the claim
had been *' disused," to say that it had never been abandoned f
In connection with this proposition, Mr. Phelps had declared
that the right of search was <^ exercised without question against
private vessels suspected of being engaged in the slave trade."
This was, declared Sir Oliarles, a further inaccuracy; it was
only under treaty that such a right existed. It was true that
Lord Palmerston had once put forward a general right of visi-
tation and search for the purpose of establishing the nation-
ality of the ship, but from this assertion he retired; and the
resiK)nsible minister of the Crown, acting upon the opinion of
the law officers of the day, expressly disclaimed the pretension
in his place in Parliament, and the disclaimer was reiterated
and communicated to the T7nited States in diplomatic corre-
spondence. Subsequently, in 1862, a treaty was entered into
between the United States and Great Britain for the purpose
of conceding to the ships of war of each power the right, within
certain waters in which the African slave trade was carried on,
to search vessels of the other power suspected of being engaged
in such trade.
At this point Sir Charles Bussell said that
*^^ ^ ^*® would pass to one of a series of illustrations
given by Mr. Phelps, as supposed analogies to
the right of protection claimed by the United Suites. The first
was stated in the Argument of the United States as follows:
" Sup[)Ofle that some method of explosive destruction should
be discovered by which vessels on the seas adjacent to the
NewfonndUmd coast outside of the jurisdictional line could,
with profit to themselves, destroy all the fish that resort to
thf>se coasts, and so put an end to the whole fishing in<histry,
upon which their inhabitants so largely depend. Would this
be a business that would be held justifiable as a part of the
fret*dom of the sea? Although the fish are admitted to be
purely ferce naturas^ and the general i ight of fishing in the open
seas outside of certain limits is not denied."
Commenting on this passage, Sir Charles Bussell proceeded :
'* Well, I would first ask : Is there any analogy between that
case and the case we arc discussing, if that can be culled the
exercise of the right of fishing at all? As I read the case, I
fail to sec where the profit comes in, because he says: 'Could,
with profit to themselves, destroy all the fish.'
Digitized by LjOOQIC
900 INTERNATIONAL ARBITRATIONS.
'^ Mr. Phelps. Yes.
" Sir Charles Kussell. And gather them — ^perhaps that
is understood?
" Mr. Phelps. Certainly.
^' Sir Charles Russell. ' Destroy all the fish and gather
them.' 1 have, in the first instance, to say that it is a little
extravagant to compare that which is not a known or recog-
nized form of fishing with the pursuit of seals pelagically, which
is the oldest form of the pursuit of seals known in the history
of the pursuit itself. • • •
" Now, the next case that is put is this :
'* 'An Atlantic cable has been laid between America and Great Britain,
the operation of which is important to those countries and to the world.
Suppose some method of deep-sea fishing or marine exploration should be
invented) profitable to those engaged in it, but which should interrupt the
operation of the cable and perhaps endanger its exist<ciice. Would those
nations be powerless to defend themselves against such consequences,
because the act is perpetrated upon the high seasf '
*' Well, one would require to know the circumstances in-
tended to be contemplated by that paragraph. * • • But
in truth all this matter (because of the uncertainty of what the
rights would be juridically considered in relation to such a
matter) has been already dealt with, with the cooperative
assent of. I may say, all the civilized i)ower8 in the world.
• ♦ ♦ By the treaty of the 14th March 1884, • • • will-
ful and negligent interruptions of telegraphic communication
are made punishable without i)rejudice to civil action (art 2);
offenders are to be tried in the courts of the country of their
own ship or nation (art. 8) ; and when there is reas(m to believe
that a ship has infringed the treaty, the cruisers of the con-
tracting ])arties may require production from the master of
' [ueces officielles' proving its nationality (art. 10). ♦ • ♦
*' My friend says :
•'*If a light-house were erected by a nation in waters outride of the
3-mile line, for the bcueiit of its own commerce ami that of the world,
''that is the first 'if
"Mf some pursuit for gain on the adjacent high sea should be discovered
which would obscure tho light or ondaui^er the light-house or the lives of
its inmates, would that goveruinent be defenseless?'
"Well, it is a very difficult case to realize what is really
meant by that. * ♦ • I wish to point out that I think my
frii*nd has, for the moment, forgotten that if a light-house is
built upon a rock or upon piles driven into the bed of the sea, it
becomes, as far as that light- house is concerned, part of the
territory of the nation which has erected it, and, as part of the
territory of the nation which has erected it, it has, incident to
it, all the rights that belong to the protection of territory — no
more and no less.
" Mr. Phelps. If it should be five miles out?
"Sir Charles RrssKLL. Certainly, undoubtedly. The
most important light-houses in the world are outside the three-
mile limit.
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 901
" Lord FIannen. The great Bddystone light-house, foarteen
miles ott' the land, is built an the bed of a rock.
"Sir Charles Eussell. That point has never been
doubted; and if it were there is ample authority to support it.
The right to acquire by the construction of a iight house on a
rock in mid ocean a territorial right in respect of the space so
occupied is undoubted; and therefore 1 answer my friend's
case by saying that ordinary territorial law would apply to
it — there is no reason why any different territorial law should
apply.''
There was one set of cases cited by Mr.
The AxgimMntDm ad Phelps which might, said Sir Charles Russell,
p **"i K^h* * * ^^ called appeals in the nature of argumenium
ad hominem, where an analogy to the claim of
the United States was supposed to be found in certain legis-
lation of Great Britain, especially legislation in relation to
and by her colonies. In regard to all these cases he was enti-
tled to assume, unless the contrary was shown, that no instance
could be adduced of any assertion of a right beyond terri-
torial waters; and in the absence of evidence of such asser-
tion, which would have been something to the point, the cases
did not afford even an argumentum ad homine^n. By a uniform
rule of construction, British statutes referring generally to
persons are, said Sir Charles Kussell, extraterritorially appli-
cable only to persons subject to British laws. But, even if a
case were clearly made out in which a legislature had affected
to bind foreigners outside of territorial limits, it was either a
good law or a bad law; and it was not a good law because
a particular power had affected to usurp an authority which
international law did not warrant it in assuming.
The case of the Ceylon pearl fishery had been cited. How
old these fisheries were. Sir Charles Eussell said he did not
know. It had been said that they were mentioned by Ilerod-
otus, but he had not been able to verify the statement. But
it was an undoubted fact that for many generations the owners
of the territory of Ceylon had, with the acquiescence of all
other powers of the world, been allowed to exercise dominion
in respect of those fisheries, which were contiguous to the
coast but extended beyond the three-mile belt; and the case
might be referred to the considerations of exclusive possession,
contiguity to the shore, and the manner in which the fisheries
were themselves carried on. His learned friend, Mr. Carter,
was, said Sir Charles Russell, "very powerful" in relation to
the suggestion that the claim to the Ceylon pearl fisheries
might be defended on the ground of the occupation of portions
Digitized by V^OOQ IC
902 INTERNATIONAL ARBITRATIONS.
of the sea away from the land; and ha<l said that, if this
was so, all a nation had to do was to find the feeding bank
of some valuable race of fish and bouy it, and say "That is
our territory." Was this an argument to be treated seriously ?
Was there any analogy between the supposed ease and thsit
of the occupation of a snnill portion of the bottom of the sea
contiguous to admitted territory, and the pursuit there of
this particular fishery! There was undoubtedly a warrnnt iu
law for the distinction just as there was an obvious distinction
in fact, between such a fishery, whether j)earl, coral, or oyster,
and a fishery dependent on the pursuit of a free swimming fish
in the ocean. In the case of Queen r. Keyn, which had been
so often referred to. Chief Justice Cockburn had said that a
portion of the bed of the sea, where it could be physically,
permanently occupied, might be subject to occujiation in the
same manner as unoccupied territory; and Vattel had said:
" Who can doubt that the pearl fisheries of Bahrem and Ceylon
may lawfully become property!" "^
But '*the great point," said Sir Charles Bussell, "which we
are here contending for, an<l which is the real point between
us, is this: whether, in time of peace, there is any justification
upon the ground that the ship of one nation has got hold of
a piece of projjerty of another nation — the right in time
of pesice, and outside the territorial limits upon the high
seas— for the claim to search that vessel, seize that vessel,
bring it into a prize court, which is in fact a war tribunal, and
there condemn it."
In connection with this point, Sir Charles
Fodtlon of United Kussell cited a series of utterances of the
**f^"^^^^ Government of the United States, from 1843
down to 1880, on the question of visitation
and search. The following passage from this part of his ar-
gument may be quoted :
• ♦ ♦ "President Tyler in 1843 communicated to the
House of Eepreseiitatives corresi>ondence as to the construc-
tion of the Ashburton treaty of 1842, for, among other things,
the final suppression of the African slave trade. Great Britain
asserted that it authorized a mutual right of search. The
United States opposed this view successfully.
"This is the way the President, who formulates his message
after the best legal and constitutional advice he could obtain,
deals with this :
** * To seize and detain u ship npon Buspicion of piracy, with probable
cause and good faith, atfords no junt ground either for complaint on the
Digitized by V^OOQ IC
PUB SEAL ARBITRATION. 903
part of the nation whose fla^ she bears, or claim of Indemnity on the part
of the owner. * » * But with this single exception , no nation has, in
time of peac^, any authority to detain the ships of another upon the hijy^h
seas, on any pretext whatever, beyond the limits of her territorial juris-
dictiou/
"Then in 1855 Mr. Marcy, the then Secretary of State,
protevsting: against certain orders of the British and French
governments to naval commanders to prevent by force, if
necessary, the landing of adventurers, from any nation, on
the Island of Cuba, with hostile intent, says:
**'Tho right of visitation aud search is a belligerent right, and no
nation which is not engaged in hostilities can have any pretense to exer-
cise it upon the open sea.
" ' The established doctrine upon this subject is that the right of visit-
ation and search of vessels, armed or unarmed, uavij^atiug the high seas in
time of peace does not belong to the public ships or any nation.' " *
"Mr. Justice Harlan. Sir Charles, suppose the case of a
vessel fitted out on the European side of the Atlantic Ocean,
and loaded with goods for the express purpose of smuggling
them into the United States in violation of its revenue laws;
would the language of Mr. Marcy go to the extent that the
United States could only seize that vessel after it got within
its territorial waters ?
"Sir Charles Russell. Certainly, the language would;
but the case that you put is undoubtedly one of the most
difficult cases that one has to consider — the ipost difficult.
You have a vessel as to which you have information such as
you suggest, that she is coining to your coasts for the express
purpose of violating your laws, but is outside your three mile
limit. Are you to allow her to take the chance of darkness on
a coast imperfectly guarded and to run ashore her cargo in
boats in violation of your revenue laws? That is a question 1
have had to consider, and it is one of enormous difficulty. If
I may express an opinion to which no value is to be attached,
it would be probable in such a case, if the executive authority
had clear and decisive information of the character that you
mention, he would probably do something before the vessel
got within the three-mile limit, if it was proved to be necessary,
relying upon the noninterference of the state to which that
fraudulent vessel belonged not to make any complaint or raise
any question whether the strict territorial limits had been
exceeded. ♦ ♦ *
"Mr. Cass, the Secretary of State, writes to Mr. Dallas on
February the 23d, 1859, aproi)os of a discussion as to the right
of visit not existing in time of peace, even in the case of a slaver :
*'*The forcible visitation of vesselH upon the ocean is prohibited by the
law of nationR, in time of peace, and this exemption from foreign juris-
diction is now recognized by Great Britaiu, and, it is believed, by aU
other commercial powers, even if the. exercise of a right of visit were
essential to the suppression of the slave trade. Whether such a right
should be conceded by one nation to its co-states of the world is a question
for its own consideration, involving very serious couseqnences, but Avhich
is little likely to encounter any prejudiced feelings in favor of the slave
trade in its solution^ nor to be inHueneed by them.'
Digitized by LjOOQIC
904 INTERNATIONAL ARBITRATIONS.
^'Then President Grrant, in the case of the Virginius — a ship
flying the United States flag, seized on the high seas near
Cuba, and the crew in a very high-handed way shot — says in
his fifth annual message in 1873:
'' ^ It is a well-eHtablished principle, assorted by the United States from
tho beginning of tbeir national independence, recognized by Great
Britain and other maritime powers, and stated by the Senate in a resolu-
tion passed nnanimously on 16th June 1858, that American vessels on the
high seas iu time of peace, bearing the American Hag, remain under the
jurisdicticm of the country to which they belong; and therefore any visit-
ation, molestation, or detention of such vessels by force, or by the exhibi-
tion of force, on the part of a foreign power, is in derogation of the sover-
eignty of the United States.'
'^Finally, Mr. Evarts, to whom I have already alluded, a
lawyer of great eminence, in reference to the seizure of United
States ships by Spanish gunboats in nonterritorial waters near
Cuba — I think there was a protest also on the part of Great
Britain in reference to this matter; it was in relation to an
assertion on the part of the Spanish authorities extending six
miles from the teiTitory — writes this:
'' nt needs no argument to show that the exercise of any such asserted
right [visitation and search] upon commercial vessels, on the high seas,
in time of peace, is inconsistent with the maintenance of even the most
ordinary semblance of friendly relations between the nation which thus
conducts itself and that whose merchant vessels are exposed to systematic
detention and search by armed force.'
On the assembling of the tribunal on the
* m:!Je."C"'' ^^^ ""^ ^P"'' ^'"^ ^^"'*« ^""^" "**^^
'^ that the agent of the United States be called
upon to produce the original or a certified copy of the report
made by Henry W. Elliott on the subject of fur seals, pursu-
ant to act of Congress of 1890." The document referred to
was a rei>ort made to the Secretary of the Treasury on Novem-
ber 17, 1890, in pursuance of an act of Congress approved
April 5, 1890, providing for an examination of the condition
of the Alaskan seal herds. This examination Mr. Elliott was
appointed to make. He reported that he found at the island
only a "scant tenth" of the uumber of young male seals which
he saw there in 1872, and that the great dimunition in the
herds was caused by driving and killing on land and by killing
at sea; and he recommended that no driving and killing of
seals for taxation and shipment should be permitted on the
islands for a period of at least seven years; that a close season
be at once established by international arrangement against
pelagic sealing, and that a commission of British, Russian,
and American experts be sent to the islands during the ensu-
ing summer to make an impartial report on the subject. Mr.
Elliott's report was not published by the government; but on
Digitized by LjOOQIC
PUR SEAL ARBITRATION. 905
May 4, 1891, there appeared in the Leader and Morning Herald^
of Cleveland, Ohio, accompanying a special dispatch from
Washington, a copy of the letter with which the report was
communicated to the Secretary of the Treasury, and in which
its conclusions were summarized. The report itself was shown
by the American to the British commissioners during the ses.
sions of the joint commission at Washington in March, 1892,
and was for a time in the British commissioners^ possession,
but was not formally communicated to them. The letter to the
Secretary of the Treasury, as it appeared in the Cleveland
newspaper, was printed in one of the appendices to the British
Case. * As thus printed it was referred to in the Counter Case
of the United States as '* a newspaper extract which purports
to be a summary of a report made by Mr. H. W. Elliott, in 1890,
to the Secretary of the Treasury." It has been seen that it was
provided by Article IV. of the treaty of arbitration (1) that if
*'in the Case submitted to the arbitrators'' either party should
have '* specified or alluded to " any document in its own ex-
clusive possession, without annexing a copy, such party should
be bound, if the other party applied for it, to furnish a copy,
and (2) that either party might ^^ call upon the other, through
the arbitrators, to produce the original or certified copies of
any papers adduced as evidence, giving in each instance no-
tice thereof within thirty days after delivery of the case," and
that the original or copy so requested should "be delivered as
soon as may be and within a period not exceeding forty days
after receipt of notice." On the 10th of February 1893 the Brit-
ish agent applied to the agent of the United States for several
documents, and among them for " a full copy of the report of
Mr. H. W. Elliott, in 1890, specified and alluded to on page 75
of the United States Counter Case." . The agent of the United
States declined to furnish the copy, saying that the Counter
Case of the United States alluded to *^ a newspaper extract;
not to Mr. Elliott's report, and specifically to the same as pub-
lished in the Appendix to the Case of Her Majesty's Govern-
ment." The British representatives, therefore, in the manner
above stated, called upon the agent of the United States,
through the arbitrators, to produce the original or a certified
copy of the document. In supporting his motion Sir Charles
Eussell admitted that the first clause of Article IV. related to
documents in the exclusive possession of one party, and
» Fur Seal Arbitration, V. 739.
Digitized by LjOOQIC
906 INTERNATIONAL ARBITRATIONS.
referred to iu its "Case;" but Le contended that the second
clause was intended to enable either party, if there were orig-
inal documents important in the elucidation of the tiiith in
the possession of the other party, to obtain such documents
or copies of them, instead of being compelled to rely on second-
ary evidence. He also contended that the tribunal possessed
inherent power, for the better information of its own judgment,
to call for the production of documents for that purpose in the
possession of either party. His argument on the point was
supplemented by Sir Kichard Webster. For the United States
Mr. Phelps took the ground that the tribunal had no power to
order the production of the document in question ; that the
second clause of the article did not give a party the right, by
referring to a document in his Case, to compel the other party
to produce it, but only contemplated a call by one party upon
the other for documents which the latter had '^ adduced as evi-
dence," and that the powers of the tribunal were limited to
those enumerated in the treaty. Mr. Carter spoke in support
of the same views. Counsel for the United States, however,
after explaining their views on the question of right, stated
that they were willing to produce the report, and, at there
quest of the president of the tribunal, presented the following
written reply to the motion of Sir Charles Eussell:
*' The United States Government denies that Her Britannic
Majesty's government is entitled under the provisions of the
treaty to any order by the tribunal for the production of
the document specified in the motion, as a matter of right.
"The United States Government, however, is willing to waive
(so far as it is concerned) its right of objection, and to furnish
to the agent of Her Majesty's government a copy of the docu-
ment referred to, for such use as evidence as the tribunal may
deem proper to allow;
"Not conceding, however, in so doing that either party at
this or any subsequent stage of the proceedings has a right to
introduce any further evidence whatever, upon any subject
whatever connected with the controversy.
"And further stipulating that if the document referred to in
this motion shall be used in evidence at all it shall be oi)en to
the use ot both parties equally in all its points."
The tribunal through the president then announced, the fol-
lowing order:
"The tribunal directs that the above-named document be
regarded as before the tribunal, to be made such use of as the
tribunal thinks tit."
Digitized by LjOOQIC
FUE SEAL ARBITRATION. 907
Immediately after the subject of Mr. Elliott's
ProMd ** report was thus disposed of, tbe agent of the
United States submitted the two following
motions :
" The agent of the United States desires to bring to the at-
tention of the Tribunal of Arbitration the fact that he has been
in formed by the agent of Her Briianiiic Majesty, in a note
dated March 2r)th ultimo, that he has sent to each of the mem-
bers of the tribunal copies in duplicate of the supplementary
report of the British commissioners appointed to inquire into
seal life in Behring Sea.
" The agent of the United States, in view of this information,
moves this Honorable Tribunal that the document referred to
be dismissed from consideration, and be returned to Her
Majesty's agent on the ground that it is submitted at a time
and in a manner not allowed by the treaty.
"II.
"The agent of the United States moves this honorable tri-
bunal to dismiss from the arbitration so much of the demand
of the Government of Great Britain as relates to the sum stated
upon page 315 of the Counter Case of said government to have
l)een incurred on account of expenses in connection with pro-
ceedings before the Supreme Court of the United States; ^
"And, also, to dismiss from the arbitration the claim and
request of the same government, mentioned on said page 315,
that the arbitrators tind what catch or catches might have
been taken by pelagic sealers in Behring Sea without undue
diminution of the seal herd during the pendency of this arbi-
tration ;
"And, further, to dismiss from the arbitration the claim of
the same government, mentioned on the said page 315, to show
payments by it to the Canadian owners of sealing vessels;
"And that all proofs or evidence relating to the foregoing
claims or matters, or either of them, be stricken from the Brit-
ish Counter Case, and in particular those found on pages 215 to
229 inclusive, of "Volume II. of the Appendix to said Counter
Case.
" The ground of the foregoing motion or motions is that the
claims and matters aforesaid are, and each of them is, presented
for the first time in the Counter Case of the Government of
Great Britain, and that they are not, nor is either of them,
pertinent or relevant by way of reply to the Case of the United
States, or to anything contained therein, except so far as the
same may tend to support claims for damages distinctly made
in the original Case of the Government of Great Britain, and
that so far as they come under that head the matters are
irregular as being cumulative only."
* Supra, 797, note.
Digitized by VjOOQ IC
908 INTERNATIONAL .ARBITRATIONS.
When these motions were presented, the president announced
that the tribunal would hear argument on the first one imme-
diately, but that discussion on the second would be postponed
to a later stage of the proceedings. Mr. Phelps then addressed
the tribunal in support of the first motion. It has been seen
that from the beginning the two governments differed in their
views as to the order of procedure, the United States main-
taining that the whole case of each side should be presented
together, while it was insisted on the part of Great Britain
that questions of right should first be disposed of before the
question of regulations was considered. By Articles III., IV.
and V. the treaty provided for the filing of Oases and Counter
Cases and the delivery of arguments. By Article VI. five spe-
cific questions of right were submitted to the decision of the
arbitrators. By Article VII. it was stipulated that if the deter-
mination of those questions should leave the subject in such
position that the concurrence of Great Britain was necessary to
the establishment of regulations, the arbitrators should deter-
mine " what concurrent regulations outside the jurisdictional
limits of the respective governments" were necessary, and
that "to aid them in that determination the report of a joint
commission to be appointed by the respective governments "
should be " laid before them, with such other evidence as either
government may submit." By Article IX. provision was made
for the appointment of a joint commission of four commission-
ers, and in this relation the article said: "The four commis-
sioners shall, so far as they may be able to agree, make a joint
report to each of the two governments, and they shall also
report, either jointly or severally, to each government on any
points upon which they may be unable to agree. These reiK)rts
shall not be made public until they shall be submitted to the
arbitrators, or it shall appear that the contingency of their
being used by the arbitrators can not arise."
Mr. Phelps contended that the treaty contemplated the sub-
mission to the tribunal of nothing but the Cases, Counter
Cases, and accompanying documents, and the arguments, as
specified in Articles III., IV. and V.; that the words "other
evidence," in Article VII., merely referred to the evidence
embodied in the Cases and Counter Cases; and that the "con-
tingency" contemplated by Article IX. was a failure to agree
on an arbitration, or the supersession of the process of arbi-
tration by a complete joint report of the four commissioners.
These positions were supported by Mr. Carter.
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 909
On the other hand, Sir Charles Bussell, formally submitting
the ])roposition '' that the supplementary report of the British
Commissioners dated the 3l8t January 1893, presented solely
with reference to the question of regulations and under the
provisions of the Treaty of Arbitration of February 29, 1892,
is properly presented to the tribunal, and so should be con-
sidered by them in the event of their being called upon to
determine, pursuant to Article VII., what, if any, concurrent
regulations are necessary,'' contended that, under the treaty,
the tribunal must determine, as judges, the questions of right
before proceeding to ordain, as jnst men, a system of regula-
tions; that the words "other evidence" meant evidence spe-
cifically applicable to the subject of regulations; and that the
" contingency " referred to was a decision of the questions of
right adverse to the United States. The subject was argued
on the 4th, 5th. 6th, and 7th of April, and on the 12th the
president announced the following decision :
"It is ordered that the document entitled a 'Supplementary
Report of the British Behring Sea Commissioners,' dated Janu-
ary 31, 18i)3, and signed by George Baden-Powell and George
M. Dawson, and delivered to the individual arbitrators by the
agent of Her Britannic Majesty on the 25th day of March 1893,
and which contains a criticism of, or argument upon, the evi-
diMice in the documents and papers previously delivered to the
arbitrators, be not now received, with liberty, however, reserved
to counsel to adopt such document, dated January 31, 1693, as
part of their oral argument if they deem proper.
"The question as to the admissibility of the documents, or
any of them, constituting the appendices attached to said docu-
ment of January 31, 1893, is reserved for further consideration,
without prejudice to the right of counsel on either side to dis-
cuss that question, or the contents of the appendices, in the
course of the oral arguments."
At the same time the president read the decision of the
tribunal on the second motion submitted by the agent of the
United States, which had not been argued. The decision was
as follows:
" It is ordered that the argument and consideration of the
motion made by the United States of America, on the 4th day
of April 1893, to strike out certain parts of the Counter Case
and proofs of the Government of Great Britain, be postponcKl
until such time as may be hereafter indicated by the tribunal.'"
The president then expressed the desire of the tribunal not
to spend time in discussions on procedure, but to enter as soon
as possible upon the main question.
Digitized by LjOOQIC
910 INTERNATIONAL ARBITRATIONS.
Be accordingly invited counsel to address themselves imme-
diately to the matter at issae.
Sir Charles Kussell indicated the order in which it had been
agreed that counsel would present their arguments, and his
statement was confirmed by Mr. Garter.
The president declared that tbe tribunal would approve of
the mode of proceediDg agreed upon by counsel, but he
requested them to be kind enougli, so far as possible, in the
arrangement of their arguments, to keej) separate the discus-
sion of the matters relating to right and of those relating to
the regulations which might eventually be proposed.
In this relation it is proper to refer t o certain
Affenti andConnsel* P^^^*® ^^ procedure which were settled by the
tribunal during the course of the discussions.
When the agent of the United States offered the two motions
which we have just been considering, Sir Charles Russell inter-
posed and suggested tliat the motions should be made by
counsel. The president observed that the official representa-
tives of the governments were their agents, and that counsel
acted with tlie agents, but that they must agree between them-
selves how they would proceed. Mr. Phelps then stated that
Mr. Foster was on the point of reading the motions, but was
not intending to address the tribunal in sup]K)rt of them. Mr.
Foster said: "I fully concur with the president of the tribunal
as to my duties. I appear here to i)resent a motion on behalf
of the Government of the United States. When I have pre-
sented that motion it will be the pleasure of the counsel of the
United States to argue that motion. In the proper discharge
of my duty, I rise for the jmrpose of reading and laying before
this tribunal a motion." The president inquired whether British
counsel protested against this mode of proceeding. Sir Charles
Russell replied that they did not wish to do so. The president
then said; ^*\\e will not recognize the agents as arguing the
matter. We recognize them as representing the government.
Counsel will argue the matter and we will dispose of it." Mr.
Foster then read the motions, and counsel proceeded to argue
them.
On the 7th of April Mr. Phelps called the
Shorthand Eeporu. attention of the tribunal to certain errors in
the shorthand notes. The president stated
that the only official minutes which were specially under the
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 911
anthority of the tribunal were the protocols; that the respon-
sibility for the shorthand notes rested exclusively with the
agents of the two governments.^
During the oral arguments questions were
Qnestions Addrened frequently addressed to counsel by the arbi-
^ . " trators. The president of the tribunal, refer-
ring to this circumstance, and especially to
certain remarks which he himself had made, announced that
if, in the course of the arguments, the arbitrators were led to
make observations or to address questions to counsel, such
observations and questions must not be considered as express-
ing any opinion on the part of the arbitrator who made them,
and still leas as binding the country to which he belonged;
that they were simply, so far as the tribunal was concerned,
the means of obtaining from the representatives of tlie parties
a more complete elucidation of the points under discussion.
On the 20th of April the agent of the United
"^"mrate ^' ^^^^^^ caused to be delivered to the tribunal a
collection of ''Citations from the writings of
jurists and economists as an appendix to the argument of the
United States."
On the 2l8t of June Sir Richard Webster produced and pro-
posed to read to the tribunal certain documents then recently
presented to the Parliament of Oreat Britain containing cor-
respondence between Great Britain and Russia on the subject
of the seizure of British vessels by Russian cruisers in the
Behring Sea.
Mr. Garter objected to these documents being regarded as
before the tribunal.
The president, after consultation with his colleagues, an-
nounced that the tribunal would permit the documents to be
read, but reserved to itself for further consideration the ques-
tion of their admissibility as evidence.
Sir Richard Webster then read an extract from the docu-
ments in question.
' 'JTie United States, being dissatisfied with the sbortband reports, sub-
sequently "withdrew from the arrangement in regard to them, and the
British Government continued them on its own account. Soon after the
conclusion of Mr. Carter's oral argument, however, a shorthand report of
it, revised and corrected, was presented to the tribunal by the agent of
the United States.
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912 INTERNATIONAL ARBITRATIONS.
On the 2oth of April, all the arbitrators be-
**?^^" ' ing present except Lord Hannen, who was
confined to his hoase by illness, Sir Bichard
Webster stated that any decision of the tribunal as to the
suspension of its labors during the time necessary to insure
his lordship's complete recovery would be agreeable to the
wishes of the British Government. Mr. Phelps expressed the
same disposition in behalf of counsel for the United States.
The tribunal decided to adjourn till the 2d of May, when it
reassembled, all the arbitrators being present.
On several days, during the temporary
^^^"^^^^•^ absence of Mr. 11. Cnnynghame, one of the
two co-secretaries, the tribunal authorized
Mr. H. A. Hannen, secretary to Lord Hannen, to perform
Mr. Cunynghame's duties.
The regular hour of meeting of the tribunal
Senioni of the ^^g ^ 39 a. m. At 1.30 p. m. a recess was
^''^ * usually taken, and after reassembling the tri-
bunal sat till 4 p. m.
The oral argument on the merits of the case
Order of Oral Argu- ^.^g opened by Mr. Carter on the 12th of
^^ ' April and was continued bj' him on April 13,
14, 18, 19, 20, 21, and May 2. On the last day Mr. Carter dis-
cussed the subject of regulations. As he was proceeding to
deal with it. Sir Charles Eussell observed that counsel for
Great Britain would in the discussion keep absolutely separate
matters relating to right and those relating to regulations.
The president ** recalled the fact that the tribunal had decided,
without prejudging the question of right, to give to counsel
on each side, who had agreed upon this point, full liberty to ar-
range their arguments in such manner as they thought most
convenient, but always, as far as possible, so as to keep the
questions of right distinct from the regulations ; '^ and he added
<^ that the tribunal took note that both parties had decided to
defer to this desire.^
On the 3d of May Mr. Coudert began his oral argument, which
was continued on the 4th and 5th and concluded on the 9th.
Sir Charles Russell began his argument for Great Britain
on the 10th of May. He continued it on the 11th, 12th,
16th, 17th, 23d, 24th, 25th, 26th, and 30th, and concluded on
the 31st.
Digitized by LjOOQIC
FUR SE/LL ARBITBATION. 913
He was followed on the same day by Sir Eichard Webster,
who spoke also on June 1, 2, and 6, and concluded on the 7tli.
Sir Eichard Webster was followed by Mr. Eobinsou, who
opened his argament for Great Britain on the 7th of June and
closed it on the 8th.
On the same day Sir Charles Eassell opened for Great
Britain on the subject of regulations, continuing his argument
on the following day and closing on June 13. He was imme-
diately followed by Sir Eichard Webster, who continued. on
June 14, 15, and 16, and concluded on the 20th. Mr. Eobinson
followed, concluding his argument on the following day.
Mr. Phelps began the closing argument for the United States
on the 22d of June. He continued it on the 23d, 27th, 28th,
and 29th of June, and the 3d, 4th, 5th, 6th, and 7th of July,
concluding on the 8th.
On the conclusion of Mr. Phelps's argument
CondusianofHear. g.^ Charles Eussell, in the name of his col-
leagues, thanked tde members of the tribunal
for the kind attention with which they had followed the lengthy
debates. He also thanked the secretary, co-secretaries, and
assistant secretaries of the tribunal, as well as the private sec-
retaries of the arbitrators for their obliging and useful assist-
ance.
Mr. Phelps, concurring, in behalf of counsel for the United
States, in what Sir Charles Eussell had said, spoke of their
appreciation of the ability and courtesy with which the presi-
dent had directed the discussions, and renewed the expression
of their gi*atitude for the hospitality of France.
The president thereupon announced that the tribunal would
take the case under consideration.
Sir Charles Eussell and Mr. Phelps expressed the desire
that if the tribunal should, during its deliberations, find it
necessary to obtain from counsel any further information, the
request for such information and the answer thereto should
be in writing.
The president replied that the tribunal would take note of
the request avS far as possible, without, however, surrendering
the right given it by the treaty to require all such informa-
tion, whether oral, written, or printed, as it might deem useful.
The agent of Her Britannic Majesty announced that the
agent of the United States and himself would remain in Paris
at the disposition of the tribunal.
5627 58
Digitized by LjOOQ IC
914 INTERNATIONAL ARBITRATIONS.
On the 10th of July the tribunal assembled
rauoni n- ^.^j^ closed doors, all the arbitrators being
ceming tho Award.
present, to deliberate on the questions sub-
mitted to its decision. During these deliberations, which were
continued at successive meetings till the 14th of August, Lord
Hannen presented a form of an award, blank spaces l>eing left in
it for the insertion of the decisions of the tribunal on the various
points at issue, which were specifically set out in the draft.
This form the tribunal adopted, and, the preamble having been
unanimously agreed to without modification, the arbitrators
proceeded to consider the five points mentioned in Article VI.
of the treaty.
As to the first point, relating to <^ what ex-
Enadan Bighta of elusive jurisdiction "in Behring Sea, aud^' what
Jnriadictioii and exclusive rights in the seal fisheries therein,"
^^ ^ ^ ' Russia asserted and exercised prior and up to
the cession of Alaska to the United States, it
was decided that a distinction must be made between different
periods, and that what took place prior to the ukase of 1821
might be treated as immaterial. Baron de Courcel then pre-
sented the following project of a decision :
" By the ukase of 1821 Bussia claimed jurisdiction in the sea
now known as the Behring's Sea to the extent of 100 Italian
miles from the coasts and islands belonging to her, but in the
course of the negotiations which led to the conclusion of the
treaties of 1824 with the United States and of 1825 with Great
Britain, Kussia admitted that her jurisdiction in the said sea
should be restricted to the reach of cannon shot from shore,
and it appears that, from that time up to the time of the
cession of Alaska to the United States, Kussia never asserted
in fact or exercised any exclusive jurisdiction in Behring^s
Sea or any exclusive rights in the seal fisheries therein beyond
the ordinary limit of territorial waters. "
This was adopted by a majority composed of Baron de Oour-
cel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson,
Marquis Viscouti Venosta, and Mr. Gregers Gram. The views
of Mr. Justice Harlan on this question are fully set forth in an
opinion subsequently drawn out by him, and printed.* In this
opinion he holds that " there is nothing in the record which even
> The tribunal at the close of its deliberations adopt-ed a resolation, pro-
posed by Mr. Justice Harlan, reserving to each arbitrator the right to file
with the secretary, at any time between the adjournment and January 1,
1894, an opinion or opinions, which should be regarded as annexed to the
final protocol. Both Mr. Justice Harlan and Senator Morgan filed opin-
ions under this resolution. (Fur Seal Arbitration, I.)
Digitized by VjOOQ IC
FUR SEAL ARBITRATION. 915
remotely sustains the theory that Russia intended, by the ukase
of 1799, to assert exclusive jurisdiction over, or any sovereign
control of, the northeastern sea outside of territorial waters;"
that there is no " document or fact in the public history of Rus-
sia, as disclosed in the record before us, which justifies the con-
tention that that country asserted or exercised, prior to 1821,
exclusive jurisdiction over the waters of Behring Sea or any
exclusive rights in the ^eal fisheries in that sea, outside of terri-
torial waters;" that the "evidence is overwhelming that the
positions taken by the United States and Great Britain w^ere
substantially alike, namely, * * * that its (Russia's) inter-
dict of the approach of foreign vessels nearer to its coast than
100 Italian miles was contrary to the principles of international
law and in violation of the rights of the citizens and subjects
of other countries engaged in business on the waters covered
by that regulation ;" and that '< by the treaty of 1824 with the
United States, as well as by that of 1825 with Great Britain,
the above ukase was withdrawn, and the claim of authority or
the power to prohibit foreign vessels from approaching the
coasts nearer than 100 Italian miles was abandoned by the
igreement embodied in those treaties to the effect that the re-
spective citizens and subjects of the high contracting parties
should not be troubled or molested, in any part of the Great
Ocean commonly called the Pacific Ocean, either in navigating
the same or in fishing therein, or in landing at such parts of
the coasts as shall not have been already occupied, in order to
trade with the natives, under the restricticms and conditions
specified in other ai tides of these treaties."*
Senator Morgan maintained that in the region in question
Russia ''directed the energy and capital of her people to the
collection of furs, ^^ and Created monopolies, all directed to the
same end; that these privileges were retained and exclusively
exercised by Russian subjects till 18G7; that the claim of mare
clausum "was carried into eft'ect as to the control of the fur
trade ;^^ that the Russians ''did not hunt whales at that period
to any great extent, nor did they conduct fisheries /or commer-
cial jyurposes ;^ that the ukase of ITS 9 "covered Behring Sea
and all hunting and trading in those waters:" that the ukase
of 1821, that of 1799 having be^n found insufficient, prohibited
"navigation" within 100 Italian miles of the coast as well as
"the pursuit of commerce^ whaling, and fishing, and all other
industries" in the waters covered by it; and that the right of
'Opinion of Mr. .Justice Harlan, Fur Seal Arbitration, I. 65, 83, 110.
Digitized by VjOOQ IC
916 INTERNATIONAL ARBITRATIONS.
"hunting in the northeastern seas and along the coasts of Amer-
ica," which was "made the sole ground of the ukase of 1799,
woM not touched by the treaty of 1621 with the United States, or
the treaty of 1825 with Great Britain."
Senator Morgan voted against Baron de Courcel's project,
reserving the right to propose an amendment when the second
point should have been reac^hed.
As to this second ix)int — "How far were
Seoognitioii of Bni- t\\e^%ei [Russia's] claims of jurisdiction as to the
OrTtBiitaki* ^ ^*^ fisheries recognized and conceded by
Great Britain?" — a majority of the tribunal,
composed of the same members as the majority on the first
point, adopted the following decision :
"Great Britain did not recognize or concede any claim upon
the part of Kussia to exclusive jurisdiction as to the seal fisher-
ies in Behring Sea outside of ordinary territorial waters."
Senator Morgan voted against this decision, and presented
the following motion as a substitute for the decisions as to the
first two points :
" 1. From the time that Russia first discovered and occupied
Behring Sea and the coasts and islands thereof, until she caied
a portion thereof to the United States, she claimed the seal
fisheries in Behring Sea, and exercised exclusively the right to
the usufruct and to own the product of such seal fisheries, and
to protect the same against being interfered with in those
waters by the people of any other country; and also the exclu-
sive jurisdic.tion that was found necessary for those purposes;
and also the exclusive jurisdiction to regulate the bunting of
fur-seals in those waters; and to grant the right of hunting
them to her own subjects.
"2. The attitude of Russia towards the fur-seal fisheries in
Behring Sea, as described above, being known to Great Brit-
ain, she acquiesced in the same without objection.''
This motion was negatived by all the arbitrators except Sen-
ator Morgan.^
As to the third point, whether Behring Sea
""oJirilTSl! ""''^ included in the phrase "Pa^^itic Oceiin"
lian Bights after *^ *^^ ^^^^^^ between Great Britain and lius-
1825. '^Ja of 1825, and what rights, if any, were ex-
clusively exercised by liussia in Behring Sea
after that treaty, the arbitrators agreed that the two questions
thus connected should be considered separately.
•Senator Morgan's opinion in support of his substitute is printedin the
Fur Seal Arbitration, I. 31.
Digitized by LjOOQIC
FUR SEAL AKBITBATION. 917
On tbe first question the following decision was unanimously
made:
''The body of water now known as the Behring Sea was in-
cladiHl ill tlie phrase 'Pacific Ocean' as used in the treaty of
1825 between Great Britain and Russia.''
On the second question the following decision was adopted
by a majority composed of Baron de Courcel, Mr. Justice Har-
lan, Lord Haiinen, Sir John Thompson, Marquis Visconti
Venosta, and Mr. Gregers Gram, Senator Morgan voting in
the negative:
"No exclusive rights of jurisdiction in Behring Sea and no
exclusive rights as to seal fisheries therein were lield or exer-
cised by Russiii outside of ordinary territorial waters after the
treaty of 1825."
Baron de Courcel remarked that, in concurring in this deci-
sion, it was his intention to state the position held by Russia
in the Behring Sea only in so far as it had been presented for
consideration by the two governments which had constituted
the tribunal, and that he by no means intended to prejudge the
appreciation of the facts held by Russia herself, as that power
had not been heard by the tribunal, nor placed in such a situa-
tion as to make her views known to it.
The first three points having been deter-
Tranrfer of Eludan mined in the manner which has been disclosed,
u*^t(S statei ^* the tribunal took up the fourth point, "Did
not all the rights of Russia as to jurisdiction,
and as to the seal fisheries in Behring Sea east of the water
boundary, in the treaty between the United States and Russia
of the 30th March, 1867, pass unimpaired to the United States
under that treaty?"
This question the arbitrators unanimously answered in the
affirmative.
The arbitrators next took up the fifth and
TheBighto of Pro- j^gt point in Article VI., ^'Has the United
toetion as to Fur g^-g^^^^ ^^y right, and if so, what right of pro-
tection or proi)ertyin the fur seals frequenting
the islands of the United States in Behring Sea when such
seals are found outside the ordinary three-mile limit!"
In answer to this question. Lord Hannen proposed the fol-
lowing decision :
"The United States has not any right of protection or prop-
erty in the fur seals frequenting the islands of the United States
in Behring Sea, when such seals are found outside the ordinary
three-mile limit.''
Digitized by LjOOQIC
918 INTEKNATIONAL ARBITRATIONS.
Tbis propositiou was adopted by a majority, composed of
Barou DeCourcel, Lord Hauuen, Sir JobiiTbompsou, Marquis
Visconti Venosta, and Mr. Gregers Gram. Mr. Justice Harlan
and Senator Morgan voted in tbe negative, and stated that, in
their opinion, the United States owned the herd of seals which
frequented the islands of tlie United States in Behring Sea,
and were entitled to employ for their protection, when found
outside the ordinary three-mile limit, the same means that an
individual might legally employ for the protection of his prop-
erty. They also stated that in their opinion, independently of
any right of property in the fur seals themselves, the United
States, as the owner and proprietor of the industry conducted
on the Pribilof Islands, which industry consisted in taking
fur seals on those islands for commercial purjMJses, had the
right to protect these animals against being taken in tbe open
waters of Behring Sea and the north Pacific Ocean outside of
territorial waters, by any method, such as pelagic sealing; which
would necessarily exterminate the race.'
^ Mr. Jastice Harlan, in the opinion Biibsequently file() by him, maintains
that while, in a sense, all property has its root in mnnicipal law, theqnets-
tion of property in seals in the open sea must " be determined ultimately
by the public law of nations; '' and that while the (luestiou whether *' any
precedent precisely in point was recorded in the writings of publicists, or
in the judgments of the courts, or in the statutes and ordinances of mari-
time nations," that supported ** tbe claim of the United States to own these
seals and protect them when they are in the seas beyond territorial juris-
diction,'' ''must, of course, be answered in the negative, because, bo far as
is known, the case has never before arisen," yet the tribunal, in ascertain-
ing whether the law of nations sanctioned and supported the claim of
property, might, the question "not being concluded by treaties or prece-
dents," consider " what is demanded in respect to the subject of contro-
versy by the law of nature; that is, by the principles of justice, sound
reason, morality, and equity, as recognized and approved by civilized peo-
ples." From "the principles announced by courts and jurists," he said
that " this rule, at least, may be fairly deduced as resting in sound reason,
in natural justice, and in a wise public policy : That although animals /«•«*
natures^ however valuable to the world, are not the subjects of property,
while in their original condition of wUdness, beyond the control of man for
any purpose whatevery the law will yet recognize a right of property in them
in favor of one who, by acting upon their natural instincts, and by care,
watchfulness, self-denial, and industry, induces or causes them to abidtj for
stared periods in each year, upon his premises, so that he, and he only, is in
a position to deal with the race as a ichqle^ faking its increase regularly for com-
mercial purposes without impairing the stock.'' In applying this rule to seals,
he said: " Would the seals continue to come to Pribilof Islands, from year
to year, if, by the direction or with the assent of the United States, they
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FUR SEAL ARBITRATION. 919
Senator Morgan thereupon sabmitted the following motion:
*' I propose to amend the proposed award and decree by in-
serting, after the words not any^ the word special^ and at the
end of the proposed award and decree, the following words:
*' beyond the rights that all nations have under the international
law, in respect of self-jyrotection and self-defense.^
*' So that the entire award, as to point five in Article VI. of
the treaty, would read as follows, viz : As to tlie fifth of the said
were met, as they might be, at the shore of the islands and driven back
into the water! Would they remain on the islands during the breeding
season except for the care taken, under regulations pre8cri1)ed by the
United States, to induce them to do so, and except for the protection
afforded them, while ou the islands, against the pursuit of seal hunters
having in view immediate profit for themselves rather than the preserva-
tion of these animals for the benefit of mankind f » « * Neither hive,
box, park, nor other inclosure, has been provided for them, as in the case
of bees, pigeons, and deer, respectively, because such a provision is for-
bidden by the nature and habits of the animals, and would be absolutely
useless for any practical purpose. But an abiding place for all the pur-
poses for wl^icli they must, of necessity, come to and remain upon laud,
has been provided for them. Upon the discovery by Russia of the Pribilof
Islands it was ascertained that this race made it their land home. Russia
desired this condition of things to continue in order that these animals
might be utilized for public and commercial purposes, and to that end
regulations were established restricting the number to be taken annually
for such purposes. That system has been perpetuated and improved by
the United States. * « • We have seen that by an actof Congress,
passed soon after the United States acquired Pribilof Islands, the islands
of St. Paul and St. George were set apart as the land home of these ani-
mals. * * * It is said that these islands, before their discovery by
Russian navigators, were the land home of these animals, and, consequently,
that the seals were not provided with that home by Russia or by the United
States, which succeeded to Russia's rights. The answer is, that after such
discovery the islands of St. Paul and St. George have continued, for more
than a century, to be the land home of these animals only because Russia,
and subsequently the United States, so ordered. If the United States de-
sired to establish a naval post on Pribilof Islands, or to use those islands for
auy other public purpose different from those for which they have been
used since 1^7, it could easily drive the seals back into the sea when they
attempted to * haul up ' on the islands during the breeding season. * • *
But no such treatment is, in fact, accorded to them. On the contrary, the
islands are preserved for their use as a land home." (Fur Seal Arbitra-
tion, I., 132, 140, 157, 160-163.)
Senator Morgan having voted that Russia formerly asserted and exer-
cised exclusive rights as to the protection of the fur seals in Hehring Sea,
with the assent of Great liritain and other powers, maintained that the
United States had a right to protect the fur seals habitually resorting to
Behring Sea, on the ground, among others, of prescription. (Fur Seal
Arbitration, I., Opinion of Senator Morgan, p. 52.)
Digitized by LjOOQIC
920 INTERNATIONAL AKBITRATIONS.
points J iV€j being a majority of the said arbitrators^ do decide and
determine that the United States has not any special right of pro-
tection or property in the fur seals frequenting the islands of th^
United States in Behring Sea^ when such seals are found outside
the ordinary three-mile limits beyond the rights that all nations
have^ under the int'Crnational latv^ in respect of self protection and
self-defense,^^
Mr. Justice Harlan and Senator Morgan cast their votes
for this amendment, stating that as their views, as above
set forth, upon the question of property and protection were
not accepted by the majority, they would prefer that the
answer to the fifth point should be expressed in the words
indicated by the amendment rather than in the words ap-
proved by the majority.
Lord Haiineu, Sir John Thompson, Marquis Visconti Ven-
osta, and Mr, Gregers Gram voted against the proposed
amendment.
Baron de Courcel abstained from voting.
In consequence the amendment proposed by Senator Morgan
was rejected.
Mr. Gregers Gram expressed the desire that
TheidmitoofTerri. .^ should be understood that the tribunal, in
toxial Waters. '
answering the foregoing questions, had not
undertaken to decide what were, according to the i)rinciples of
international law, the ordinary limits of territorial waters.'
' Daring the oral arguments, while the legislation of various states touch-
ing fisheries more than three miles from land was under discussion, Mr.
Gregers Gram read the following pai^er:
'^ The Appendix Volume I. to the United States Case gives the text of the
law and regulations relating to the protection of whales on the coast of
Finumarken. It was my intention later on to explain to my colleagues
these laws and regulations in supplying some inform«ation ahout the nat-
ural conditions of Norway and Sweden which have necessitated the estab-
lishment of special rules concerning the territorial waters, and to state at
the same time my opinion as to whether those rules and their subject-matter
may be considered as having any bearing upon the present case. As, how-
ever, in the latest sittings reference haw repeate<lly been made to the Nor-
wegian legislation concerning this matter, I think it might be of some use
Sit the present juncture to give a very brief relation of the leading features
of those rules.
'^The peculiarity of the Norwegian law quoted by the counsel for the
United States consists in its providing for a close season for the whaling.
As to its stipulations about inner and territorial waters, such stipulations
are simply applications to a special case of the general principles laid down
in the Norwegian legislation conccrniiit]^ the gulfd and the waters washing
the coasts. A glance on the map will be sufficient to show the great number
Digitized by LjOOQIC
FUK SEAL ARBITRATION. 921
The arbitrators concurred in the opinion that they were not
called apon to decide what were, according to the principles of
international law, the ordinary limits of territorial waters, those
limits having been assumed by Article VI. of the treaty to be
three miles from the coast.
Senator Morgan here asked that the follow*
The Bights of Indi- j^g motion be taken into consideration :
vidatli ai to the
Taking of Bemle. "^ move that the Tribunal of Arbitration
proceed in such order as may be proper, before
a final award is made in the case, to consider and declare the
rights of the citizens and subjects of either country as regards
the taking of fur seal in or resorting to the waters of Behriug
Sea.
"This inquiry and decision includes the entire herd that re-
sorts, habitually, in the summer and autumn, to the islands of
St. Paul and St. George, in Behring Sea.
"The answers given to the five points stated in Article VI.
of the treaty do not, in my judgment, answer the question
above stated, which the treaty provides sliall be submitted to
the Tribunal of Arbitration; and an award that does not spe-
cifically answer that question can not be 'a full, perfect, and
final settlement ot all tbe questions referred to the arbitration.'
of gnlfs or fiords and their importauce for the inhabitants of Norway. Some
of these fiords have a considerable development, stretching themselves far
into the country and being at their mouth very wide. Nevertheless, they
have been from time immemorial considered as inner waters, and this prin-
ciple has always been maintained, even as against foreign subjects.
" More than twenty years ago a foreign government once complained that
a vessel of their nationality had been prevented from fishing in one of the
largest fiords of Norway, in the northern part of the country. The fishing
carried on in that neighborhood during the first four months of every year
is of extraordinary importance to the country, some 30,000 people gathering
there from south and north, in order to earn their living. A government
inspection controls the fishing going on in the waters of the fiord, sheltered
by a range of islands against the violence of the sea. The appearance in
these waters of a foreign vessel pretending to take its share of the fishing
was an unheard-of occurrence, and in the ensuing diplomatic correspond-
ence the exclusive right of Norwegian subjects to this industry was ener-
getically insisted upon as founded in immemorial practice.
''Besides, Norway aud Sweden have never recognized the three miles limit
as the confines of their territorial waters. They have neither concluded
nor acceded to any treaty consecrating that rule. By their municipal laws
the limit has generally been fixed at one geographical mile, or one-fifteenth
part of a degree of latitude, or four marine miles, no narrower limit having
ever been adopted. In fact, in ngard to this question of the fishing rights,
so important to both of the United Kingdoms, the said limits have in many
instances been found to be even too narrow. As to this question and others
therewith connected, I beg to refer to the communications presented by the
Norwegian and Swedish members in the sittings of the Institu^ de Droit
Digitized by V^OOQ IC
922 INTERNATIONAL ARBITRATIONS.
<< I woald proceed to point out the groniids and reasons on
which I base this motion, but I am aware that, in the opinions
delivered by a majority of the arbitrators, they consider either
that this question is not required by the treaty to be specifi-
cally answered or that it has been answered, in effect, by a
decision of a majority of the tribunal upon the fifth point
stated in Article VI. of the treaty, under which the tribunal
is acting."
This motion gave rise to a debate.
Mr. Justice Harlan and Senator Morgan voted for its adop-
tion.
Baron de Courcel, Lord Hannen, Sir John Thompson, Mar-
quis Visconti Venosta, and Rir. Gregers Gram, constituting a
majority of the arbitrators, considered that the answers to all
the questions referred to in Article I. of the treaty were to be
found in the decisions which had been rendered on the five
points mentioned in Article VI.
In consequence, the motion was rejected.
The decisions on questions of law having
iJ^T^ * left the subject in such position that the con-
currence of Great Britain was necessary to the
establishment of regulations outside territorial waters, the
International in 1891 and 1892. I wish also to refer, concemmg the anbject
which I have now very briefly treated, to the proceedings of the conference
of Hague, in 1882 (Martens, Nonveau Becueil (jH^ral, II. serie, Volume /X),
containing the reasons why Sweden and Norway have not adhered to the
treat 5' of Hague."
In the course of the same discussions, when Mr. Coudert was citing the
Italian decrees in relation to the coral fisheries, the Marqnis Visconti
Venosta said:
''I will say in regard to the observation of Mr. Coudert that the Italian
decrees do not apply to foreigners. The three decrees cited in the Case of
the United States are an addition to the regulation of November 13, 1882,
which is made to apply the law of March 4, 1877, on fishing, and this law
in its first article, as well as the regulations, limits their zone of application
to the territorial waters. The coral banks of Sciacca, where fishery was
forbidden for some time, are outside the territorial waters ; so those decrees
were not applicable to foreigners if they went there; but the industry', in
fact, is exclusively carried on by Italian citizens. I must add, however,
that this jirohibitiou has now been repealed.
*'Mr. CouDKRT. Yes, I was coming to that question — the distinction
between citi/eus and foreigners, and the privilege that the rule would give
to foreiguers over citizens. Of course, if as the arbitrator says, and I desire
to be instructed by him.
** Marquis Visconti Venosta. It is a question of fact."
When Sir Charles Russell referred to this colloquy in his oral argnment
the Marquis V^isconti Venosta said : ** The (piestion of fact is that this does
not apply to foreigners." (Fur Seal Arbitration, XIII. 367.)
Digitized by VjOOQ IC
FUR SEAL ARBITRATION. 923
arbitrators proceede<l in accordance with the treaty to deter-
mine what such regulations should contain.
Mr. Justice Harlan, with tlie support of Senator Morgan,
offered a resolution to the effect that the purpose of Article
VII. of the treaty was "to secure, in any and all events, the
proper i)rotection and preservation of the herd of seals fre-
quenting the Pribilof Islands;" and that ^'in the framing of
regulations, under the treaty, no extent of pelagic sealing
should be allowed which will seriously endanger the accom-
plishment of that end."
Lord Hannen and Mr. Gregers Gram declined to vote on this
resolution, on the ground that it was too abstract.
Sir John Thompson also declined on the ground, among
others, that the treaty did not empower the tribunal to make
provision for the preservation of the seals ^^in any and all
events,^^ notably "on their breeding grounds."
The Maiquis Visconti Venosta voted against the resolution.
He remarked that, in order to insure the preservation of the
seals, regulations ought to be provided for the land as well as
for the sea and accepted by all nations whose citizeos might
compete in pelagic sealing; but that, as this was beyond the
powers of the tribunal, the arbitrators could only make such
regulations as they deemed proper within the limitations of
the treaty and then express the wish that those regulations
might receive their necessary complement within the terri-
torial jurisdiction of the two countries and be made the sub-
ject of an understanding with other nations.
Baron de Courcel voted against the resolution as being too
abstract. He also thought that the treaty, when it provided
for regulations for the proper protection and preservation of
the fur seals, intended that given circumstances should be
taken into account; and he expressed the opinion that the
regulations should be made, not in the absolute interest of the
seal species, but in the interest of the human industries of
which it was the object, whether such industries were exer-
cised on land or on the sea, and without favoring one to the
detriment of the other.
The resolution consequently was rejected.
Mr. Justice Ilarlan, supported by Senator Morgan, then
offered another resolution, to the effect that it was the duty of
the tribunal to establish such regulations for nonterritorial
waters in Behring Sea and the north Pacific Ocean, traversed
by the fur seals in or habitually resorting to Behring Sea, as
Digitized by VjOOQ IC
924 INT£RNATIONi.L ARBITRATIONS.
might be found necessary for the proper protection and preser-
vation of such seals, even if such regulations should result in
preventing the hunting and taking of seals ^' during the seasons
when the condition of said waters admits of fur seals being
taken by pelagic sealers."
Lord Hanuen^ Sir John Thompson, and Mr. Gregers Gram
declined to vote, deeming the resolution too abstract. The
Marquis Visconti Venosta also abstained from voting. He
thought that the treaty contemplated the restriction, not the
prohibition, of the exercise of the right of pelagic sealing; he
would vote for efficacious measures to prevent what was essen
tially destructive to the species in such sealing, but did not feel
authorized to suppress it. Baron de Gourcel said that he might
agree to the principle expressed in the resolution, but declined
to vote upon it as being purely abstract.
The resolution was not adopted.
Mr. Justice Harlan then submitted a draft of regulations of
which Senator Morgan expressed his approval. It jtenally
prohibited any killing, capture, or pursuit whatever of far
seals by citizens of the United "States or subjects of Great
Britain outside of territorial waters, '< north of the thirty-fifth
parallel of north latitude and east of the one hundred and
eigthtieth meridian of longitude from Greenwich."*
Sir John Thompson submitted a draft restricting pelagic
sealing to sailing vessels with licenses, which were not to be
granted earlier than a date that would correspond with May 1
in the latitude of Victoria, British Columbia, and prohibiting
(1) the use of rifles and nets, (2) any killing within a zone of
thirty miles from the Pribilof Islands and of ten miles around
the Aleutian Islands, and (3) any killing in Behring Sea east of
the water boundary before July 1 and after October 1 in each
year.*
Senator Morgan submitted a paper in which he declared that
he adhered to the position that pelagic sealing should be pro-
^ The same prohibition was proposed in a draft of regulations submitted to
the tribunal by the agent of the United States on the Stli of June; bat id
the ageut'sdraft the prohibition was qualified by the proviso that it should
not apply to sealing by Indians dwelling on the coasts, for their own per-
sonal use, with spears in open boats, in the way anciently practiced by
them.
'^ The British agent had proposed in a draft presented June 20 to restrict
pelagic sealing to sailing vessels with licenses, and. to prohibit such seal-
ing (1) with rifles or nets, (2) within twenty miles of the Pribilof Island*,
and (3) in Behring Sea ''from the 15th of September to the Ist of Jaly.**
Digitized by LjOOQIC
PUR SEAL AKBITRATION. 925
hibited north of the thirty-fifth degree of north latitude; but
that, if the tribunal should prefer a close season, he should
respectfully insist that the use of firearms and explosives in
such hunting should be prohibited, under effective penalties^
not only for the protection and preservation of the seals, but
also for the protection of human life and the preservation of
peace.
Baron de Courcel, Marquis Visconti Venosta,
Draft of Artides. and Mr. Gregers Gram submitted a draft of
regulalations, which was adopted as the basis
of the tribunal's deliberations.
The first article forbade sealing at any time
lint Artide. within sixty geographical miles of the Pribilof
Islands, inclusive of territorial waters. An
amendment offered by Sir John Thompson, to substitute
thirty miles for sixty, was rejected by the other arbitrators,
Lord Hannen declaring that, after much hesitation, he adhered
to the vote of the majority. The first article was then adopted.
Sir John Thompson dissenting.
The second article provided for a close sea-
Second Artide. SOU north of the thirty-fifth parallel of north
latitude from April 15 to July 31.
Sir John Thompson proposed to substitute May 1 for April
15. This amendment wjis opposed by Mr. Justice Harlan and
Senator Morgan, who contended that it would imi)eril the exist-
ence of the seal race; but it was supported by Lord Hannen,
Marquis Visconti Venosta, and Mr. Gregers Gram. Baron de
Gourcel, while objecting to an extension of the season for pelagic
sealing in the spring, when it was most destructive by reason
of attacks on pregnant females, voted for the amendment in a
spirit of conciliation, as well as with a view to secure the adop-
tion in their general outlinesof the proposed regulations, which,
as he was not unaware, imposed strict limitations on pelagic
sealing. The amendment was therefore adopted.
Sir John Thompson then moved to substitute " January 1 to
July 1 " for " May 1 to July 31." Mr. Justice Harlan and Sen-
ator Morgan opposed the amendment. Lord Hannen tempo-
rarily abstained from expressing an opinion. Marquis Visconti
Venosta said that if a majority of the arbitrators should accept
the amendment in principle, he would ask that July 15 be sub-
stituted for July 1, since the work of reproduction took place
chiefly in the first half of that month and many gravid females
were still on the track between the Aleutian Islands and the
Digitized by LjOOQIC
926 INTERNATIONAL ARBITRATIONS.
Pribilof group. He also said that if the close season extended
from January to July there would be no pelagic sealing out-
side of Behring Sea; and, as the use of firearms in that sea was
forbidden by Article VI. of the draft, pelagic killing would in
future be aUowed only with spears or har])Oons. What the
etteet of this would be he w^as unable on the information before
him to say, but he had expressed the opinion that the tribunal
could not withdraw by regulations all that it had conceded on
the question of right; and he did not intend directly or indi-
rectly to suppress pelagic sealing altogether. If the interdic-
tion of firearms was to be applied to all pelagic sealing, he
should be compelled to reserve his vote respecting that inter-
diction. If a close season were adopted from January 1 to
July 15, he would feel inclined rather to consider whether it
would not be better simply to suspend sealing for a year every
three years. This would be a restriction, the consequences of
which he could appreciate, at least by comparison. Mr. Gregers
(rram voted against the amendment, holding that it w<mld ex-
pose a great number of pregnant females to attswk. Baron de
Courcel was disposed to accept the amendment, since it pre-
vented killing in the spring, for which object he was willing to
sacrifice the first fifteen days in July. A majority of the arbi-
trators (Mr. Justice Harlan, Senator Morgan, Marquis Visconti
Venosta, and Mr. Gregers Gram) being opposed to the amend-
ment, it failed.
Baron de Courcel moved, as a compromise, to substitute
<< January 1 to July 10" for *»May 1 to July 31." Sir John
Thompson and Lord Ilannen abstained from voting, being of
opinion that the tribunal did not possess sufficient information
as to what the effect of the amendment would be. The other
arbitrators maintained their objections to any pelagic sealing
in July. The amendment was not adopted.
On motion of Lord Hannen an amendment restricting the
second article, which applied generally to "the Pacific Ocean,
inclusive of the Behring Sea, » » » north of the thirty-
fifth degree of north latitude," to waters eastward of the one
hundred and eightieth meridian and of the water boundary
in the treaty ceding Alaska to the United States, was unani-
mously adopted.
The article as amended was then adopted, Mr. Justice Harlan
and Senator Morgan voting in the negative.
Digitized by LjOOQIC
FUR SEAL ARBITBATION. 927
By the third article of the draft |)e]agic
Third Article, sealing was restricted to sailing vessels, but
these were allowed to use "canoes or small
boats propelled wholly by oars.*' For the words thus quoted
there was substituted the clause *'such canoes or undecked
boats, propelled by paddles, oars, or sails, as are in common use
as fishing boats." The article as thus modified was agreed to.
The fourth and fifth articles of the draft,
^^''"^XtiS* ^^^ respectively relating to the licensing of ves-
sels and the manner of keeping their official
logs, were unanimously agreed to.
The sixth article read as follows: **The use
Sizth Artide. of nets, firearms, and explosives shall be for-
bidden in the fur-seal fishing. This restric-
tion shall not apply to shotguns when such fishing takes
place outside of Behring Sea." The two sentences were con-
sidered separately. The first was adopted, Sir John Thompson
voting in the negative and Lord Hannen reserving his vote for
the whole article. As to the second sentence, Sir John Thomp-
son opposed the prohibition of shotguns in Behring Sea or
elsewhere. Mr. Justice Harlan and Senator Morgan abstained
from voting, being opposed to the use of shotguns in pelagic
sealing. The sentence was adopted by the votes of the other
arbitrators, but in order to avoid ambiguity the following
words were added: "during the season when it may be law-
fully carried on." The article as a whole was then adopted,
Mr. Justice Harlan, Senator Morgan and Sir John Thompson
voting against it.
The seventh article of the draft, which pro-
Seventh Article, vided that the two governments should take
measures to control the fitness of the men
authorized to engage in pelagic sealing, was commented upon
by several of the arbitrators on the practical ground that it
would be difficult to secure its strict execution. It was how-
ever adopted. Sir John Thompson voting against it.
The eighth article provided that the regula-
Sighth Article, tions should not apply to " Indians dwelling on
the coasts of the territory of the United States
or of Great Britain, and carrying on in their canoes, at a small
distance from the coasts where they dwell, fiir-seal fishing."
The arbitrators unanimously decided to take as a basis for
Digitized by LjOOQIC
928 INTERNATIONAL ARBITRATIONS.
consideration a substitate proposed by Mr. Justice Harlan,
which read:
^' The regulations contained in the preceding articles shall
not apply to Indians dwelling on the coasts of the territory of
the United States or of Great Britain and carrying on fur-seal
fishing with spears or harpoons only, in canoes or undecked
boats not transported by or used in connection with other ves-
sels and propelled wholly by paddles or oars and manned by
not more than two persons each in the way anciently practiced
by the Indians, provided such Indians are not in tbe employ-
ment of other persons, and provided that, when so hunting in
canoes or undecked boats, they sball not hunt fur seals out-
side territorial waters under contract for the delivery of the
skins to any person.
" This exemption shall not be construed to affect the munici-
pal law of either country, nor shall it extend to the waters of
Behring Sea or the waters of the Aleutian Passes."
On motion of Sir John Thompson, the arbitrators, Mr. Jus-
tice Harlan and Senator Morgan dissenting, decided to strike
out the words " with spears or harpoons only," as well as to sub-
stitute the words " by paddles, oars, or sails" for " by paddles
or oars," and the words '< manned by not more than five persons
each" for ^^ manned by not more than two persons each." A
motion of Mr. Justice Harlan, supported by Senator 31organ,
to substitute " three " persons for " five" was negatived by the
other arbitrators. On motion of Sir John Thompson, the words
"in the way hitherto practiced " were substituted for " in the
way anciently practi(;ed," Mr. Justice Harlan and Senator
Morgan opposing. On motion of Sir John Thompson, the tri-
bunal unanimously added to the article the tbird paragraph,
as it stands in the award. Senator Morgan proposed to add
to the second paragraph the words, *'nor shall it be opera-
tive in favor of such Indians prior to January 1, 1895." This
amendment, for which Mr. Justice Harlan and Senator Morgan
voted, was negatived by the other arbitrators.
For the ninth article of the draft, which
irinth Article, article now stands in its original form in the
award, Sir John Thompson proposed to sub-
stitute the sixth article of the drnft proposed by him, by which
it was provided that the regulations should remain in force for
a period of ten years, and thereafter from year to year subject
to termination on twelve months' notice. The other arbitra-
tors decided to reject the amendment, and the article was
adopted, Sir John Thompson voting against it.
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 929
The wording of each article haviug thus
^^^ ° * been settled, a vote was taken on the question
of adopting all the articles as amended as the
regulations required by Article VII. of the treaty. On this
question Baron de Courcel, Lord Hannen, Marquis Visconti
Yenosta, and Mr. Gregers Gram voted in the affirmative. Sir
John Thompson, Mr. Justice Harlan, and Senator Morgan
voted in the negative, though approving certain parts of the
articles.
The arbitrators then proceeded to consider
Deelarationf Ee- three declarations which Baron de Courcel.
spectmg e gn- j,^ concurrence with the Marquis Visconti
Venosta and Mr. Gregers Gram, presented to
the tribunal with a view to their being referred to the govern-
ments of the United States and Great Britain for their consid-
eration. The first declaration expressed the opinion that the
regulations adopted by the tribunal should be supplemented
by concurrent regulations applicable to the territories of the
two governments; the second recommended that the killing of
fur seals, either on laud or at sea, should be suspended for two
or three years, or ooe year at least; the third declared that
the regulations should be carried into effect by appropriate
measures enacted by the two powers. The first and third
declaratious were unanimously adopted. As to the second.
Lord Hannen, though approving its spirit and regarding the
suspension of all sealing for a time as very desirable, did not
feel authorized by the terms of his mandate to express an
opinion on the subject; and in this view Sir John Thompson
concurred. The other arbitrators adopted the declaration;
and it was decided that the three declarations should be handed
at the same time as the award, but in a separate document, to
the agents of the United States and Great Britain, to be trans-
mitted by them to their respective governments.
Having thus disposed of the subject of regu-
Damages an Fin - |g^|.jQjjg^ ^,^ arbitrators proceeded to consider
the question of damages under the treaty and
the modus vivendi. We have seen that by Article VIII. of the
treaty it was providedthat the high contracting parties having
been unable to agree on a reference which should "include the
question of the liability of each for the injuries alleged to have
been sustained by the other, or by its citizens, in connection
with the claims presented and urged by it," either party might
5627 59
Digitized by LjOOQIC
930 INTEBNATIONAL ARBITRATIONS.
** submit to the arbitrators any question of fact involved in
said claims and ask for a finding thereon, the question of the
liability of either government upon the facts found to be the
subject of further negotiation." We have also seen that by
Article V. of the modus vivendi it was provided that, if the
award should affirm the right of British sealers to take seals
in Behriug Sea, the United States should compensate Great
Britain, for the use of her subjects, for abstaining from the
exercise of that right during the pendency of the arbitration
upon the basis of such a regulated and limited catch as might
have been taken without undue diminution of the seal herds;
and that, on the other hand, if the award should be adverse
to the right of the British sealers^ Great Britain should com-
pensate the United States, for itself, its citizens, and lessees,
for the agreement to limit the island catch to 7,500 a season,
upon the basis of the difference between that number and such
larger catch as might have been taken without an undue
diminution of the seal herds. On the 31st of May Mr. Phelps
and Sir Charles Kussell announced to the tribunal that their
respective governments would not ask for any finding for
damages under Article Y. of the modus vivendi. At the same
time Sir Charles Russell asked for certain findings of fact
under Article VIII. of the treaty; and on the 8th of June the
agent of the United States proposed a substitute for the find-
ings so requested. On the 20th of June, however, the British
agent presented to the tribunal a paper which, by agreement
with the agent of the United States, was submitted as a sub-
stitute for the papers previously presented as to findings of
fact. When, therefore, the arbitrators took up th6 question
of damages, practically all they had to do was to find, as they
unanimously did, that the facts which the agents had asked
them to find were true.
The arbitrators then proceeded to draw up
"^^i^dA ^ d. * *^® ^^^^ award by inserting in the form pre-
pared by Lord Hannen the decisions of the
tribunal. It was distinctly agreed that the arbitrators who
found themselves in the minority on certain questions were
not to be understood as withdrawing their votes, and under
this reservation the final text of the award was unanimously
settled. It was also unanimously decided that, in conformity
with the provisions of the treaty, two copies of the award
should be prepared and signed, one to be handed to each of
the two agents, and that a third copy should also be prepared
Digitized by V^OOQlC
FUU SEAL ARBITRATION. 931
and signed to be filed with the archives of the arbilrutiou,
which were to be confided to the French Government.
A similar decision was adopted as regards the declarations.
On Tuesday, the l5th of Augnst, the tri-
*a^^MatiOT»'^ bunal assembled with closed doors at 10 a. m.,
all the arbitrators being present^ for the pur-
pose of signing the award and the declarations.
The seven arbitrators signed the award in triplicate, on
parchment. Accompanying the original text, which was in
French, there was an English version, which the arbitrators
certified with their signatures as true and accurate.
They also signed in triplicate, on parchment, the three
declarations, which were likewise accompanied by an English
version, certified with the arbitrators' signatures. Lord Han-
uen and Sir John Thompson, while signing, stated that they
approved only the first and third declarations.
The arbitrators, at the request of the agents, settled the
allowances of the secretaries of the tribunal.
At 11 o'clock a. m. the doors were opened,
A^ottMwnt *^^ *^® session of the tribunal became public,
all the arbitrators and the agents being pres-
ent. On the request of the president, Mr. Imbert, the secretary
of the tribunal, handed to each of the agents the copy of the
award intended for his government.
In the same manner a copy of the declarations was handed
to each agent.
The president then spoke as follows:
'' Gentlemen : Now we have come to the end of oar task. We have done
our best to accomplish it, without concealing from ourBelves the difficul-
ties which complicated it, nor the heavy responsibilities which it has
imposed upon us. Selected from various nationalities, we have not con-
sidered ourselves the representatives of any one in particular, nor of any
government or any human power, but, solely guided by our conscience and
our reason, we have wished only to act as one of those councils of wise
men, whose duties were so carefully defined by the old capitularies of
France.
"To assist us, we have had at our disposition a library of documents,
compiled with extreme care, and in order that we might not lose our way
among so many sources of information, men holding a high rank among
the most learned jurists ami eloquent orators of which the Old or New
Worlds could boast have been willing so liberally to bestow upon us their
advice.
"Daring weeks and months our labors have been prolonged, and it con-
stantly appeared that some new matter had risen before us and that some
new problem pressed upon our attention.
"To-day, on this great holiday, we are assembled to inform you of the
Digitized by V^OOQ IC
932 INTERNATIONAL ARBITBATI0N8.
result of onr labors, hoping with all our hearts that they may be profitable
to man, and conformable to the designs of Him who rules his destiny.
" We know that our work is not perfect; we feel its defects, which most
be inherent in all hnmaii efforts, and are conscious of its weakness, at least
in certain points as to which we had to base our action on circumstances
necessarily liable to change.
'*The declarations which we offer to-day to the two agents, and which
we hope will be taken into consideration by their governments, indicate
some of the causes of the necessary imperfection which we have mentioned.
'* We have felt obliged to maintain intact the fundamental principles of
that august law of nations, which extends itself like the vault of heaven
above all countries, and which borrows the law^s of nature herself to pro-
tect the peoples of the earth, one against another, by incolcating in them
the dictates of mutual good will.
" In the regulations which we were charged to draw up we have had to
decide between conflicting rights and interests which it was difficult to
reconcile. The governments of the United States of America and Great
Britain have promised to accept and execute our decisions. Onr desire is
that this voluntary engagement may not cause regret to either of them,
though we have required of both sacrifices which they may, perhapn,
regard as serious. This part of our work inaugurates great innovation.
** Hitherto the nations were agreed to leave out of special legislation
Che vast domain of the seas, as in times of old, according to the poets, the
earth itself was common to all men, who gathered its fruits at their will,
without limitation or control. You know that even to-day dreamers
believe it possible to bring back humanity to that golden age. The sea,
however, like the earth, has become small for men, who, like the hero
Alexander, and no less ardent for labor than he was for glory, feel con-
fined in a world too narrow. Our work is a first attempt at a sharing of
the products of the ocean, which has hitherto been undivided, and at
applying a rule to things which escaped every other law but that of the
first occupant. If this attempt succeeds, it will doubtless be followed by
numerous imitations, until the entire planet — until the waters as well as
the continents — will have become the subject of a careful partition. Then,
perhaps, the conception of property may change amongst men.
** Before laying down the mandate which we have received in trust from
two great governments, we desire to offer our gratitude to all those whose
efforts had for their object to facilitate the accomplishment of our task,
and especially to the agents and coniisel of the two governments of the
United States of America and Great Britain.
''And, now, a Frenchman may be permitted to use a word which his
ancestors employed when they sung the lay of their great Emperor, and to
say to all of you : Gentlemen, may you retain a kind remen^brance of sweet
Franco ! "
Lord Hannen, then addressing the president, said:
** Mr. de Courcel, on behalf of your late colleagues, I have to express my
great regret that the absence of the President of the French Republic and
Mr. Develle from Paris prevents our waiting upon them before leaving this
city where we have been so kindly treated. We must therefore beg you,
as the French member of the late Tribunal of Arbitration, to convey to the
Digitized by VjOOQ IC
FUR SEAL ARBITRATION. 933
President aod to the French Government the expression of our sentiments
of profound gmtitude for the gracious reception and generons hospitality
which they have extended to us. Onr thanks are specially dne to Mr.
Develle, who, so much to his own inconvenience, has provided ns in this
palace with so splendid a domicile, and we offer him our apologies for hav-
ing so long, thoagh involuntarily, trespassed on his kindness.
"And now, Mr. de Courcel, I have to discharge a duty which gives me
peculiar satisfaction. I have to express to you our high appreciation of
the manner in which yon have presided over onr deliberations. The pub-
lic has had the opportunity of witnessing tlie sagacity, the learning, and
the courtesy with which you have guided the proceedings during the argu-
ments. Your colleagues only can know how greatly those qualities have
assisted us in our private conferences. Let me add that our intimate
relations with you have taught us to regard you with the warmest esteem
and affection. Permit me to say that yon have won in ea^h of us an
attached friend.
" I must not conclude without an allusion to the remarkable occasion
which has brought us together. We trust that the result will prove that
we have taken part in a grrat historical transaction fruitful in good for
the world. Two great nations, in submitting their differences to arbitra-
tion, have set an example which I doubt not will be followed from time to
time by others, so that the scourge of war will be more and more repressed.
Few can be so sanguine as to expect that all international quarrels will be
speedily settled by arbitration, instead of by the dread arbitrament of war;
but each occasion on which the peaceful method is adopted will hasten the
time when it will be the rule and not the exception.
" One of our poets has said that every prayer for universal peace avails
to expedite its coming.
**We have done more than join in such a supplication; we may hope
that we have been the humble instruments through whom an answer has
been granted to that prayer which I doubt not ascends from the hearts of
these two kindred nations, that peace may forever prevail between them,
"I bid you heartily farewell."
Senator Morgan then addressed the following remarks to
express his share in the sentiments which Lord Hannen had
just interpreted:
'* The arbitrators on the part of the United States most sincerely unite
in the very happy expressions that have fallen from Lord Hannen, of
grateful appreciation of the splendid hospitality of the French Govern-
ment and people. We have been their guests for many months, and have
been under the shelter of their laws and in the presence of their grand
and beautiful civilization, and during all that time we have felt that our
welcome did not cease to be cordial.
** If we should take a narrow view of the results of this arbitration, the
United States would have a regret that the important judicial questions
we have been considering were not stated in a broader form in the treaty
between these great powers. The opportunity was offered when the treaty
was in process of formation to have presented in a more equitable light
the rights of the nations to whose islands and coasts the fur seals habit-
ually resort for places of abode and shelter in the summer season; to
Digitized by VjOOQ IC
934 INTERNATIONAL ARBITRATIONS.
control and protect them under the legal rnleB and intendments that apply
nniversally to the animals that are classed as domestic, or domesticated
animals, because of their usefulness to men.
** My colleague and I concurred in the view that the treaty presented
this subject for consideration in its broadest aspect. Our honorable col-
leagues, however, did not so construe the scope of the duty prescribed to
the tribunal by the treaty. They considered that these questions of the
right of property and protection in respect to the far seals were to be
decided upon the existing state of the law, and finding no existing prece-
dent in the international law, they did not feel warranted in creating one.
"As the rights claimed by the United States could only be supported by
international law, in their estimation, and inasmuch as that law is silent
on the subject, they felt that under the treaty they could find no legal
foundation for the rights claimed that extended beyond the limits of the
territorial jurisdiction of the United States.
" This ruling made it necessary to resort to the power conferred upon
the tribunal to establish, by the authority of both goyernments, regula-
tions for the preservation and protection of ^le fur seals, to which the
treaty relates. In this new and untried field of experiment, much embar-
rassment was found in conflicting interests of an important character, and
yet more difficulty in the uncertainty as to the facts upon which regula-
tions could be based that would be at once just to those interests and
would afford to the fur seals proper preservation and protection.
** The United States will fully understand and appreciate those diffi-
culties and will accept the final award as the best possible result under
existing conditions. A very large measure of protection is secared by the
regulations adoi)ted by the tribunal to the Alaskan herd of fur seals; and
the virtual repression of the use of firearms in pelagic sealing is an earnest
and wise guaranty that those common interests may be pursued without
putting in serious peril the peace of the two countries.
** It is a great pleasure to the arbitrators appointed on the part of the
United States that they can bear the highest testimony to the ability,
integrity, patience, industry, and judicial impartiality of their colleagues
in this tribunal.
** Our labors have been arduous and protracted, but have been attended
with uniform courtesy and good feeling on the part of all the members of
the tribunal.
" We hope for still broader and better results from the foundations we
have laid in this new field of international agreements.
"To the president of the tribunal we owe a debt that we gratefully
acknowledge, that he basso patiently and with such distinguished ability
discharged the difficult duties of his position.
"The agents of the respective governments have prepared, at great
expense of labor and with unusual skill and industry, every available
fact that would throw any light upon the matters in controversy, and the
counsel have dealt with the great masses of eridence so prepared with
that marked ability for which they have become renowned upon other
occasions. Conscious of having done all we could to reach conclusions
that are just and will be salutary, we close our labors in the hope that
they will be acceptable to all nations.*'
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FUR SEAL ARBITRATION. 935
The president said that he cheerfully accepted the mission
to transmit to the President of the French Eepablic and to
Mr. Develle the thanks of the members of the tribunal.
He thanked personally Lord Hannen and Senator Morgan
for the sentiments which they had expressed concerning him-
self.
He then announced that the tribunal had closed its labors,
Tart of tlM Award. *"^ *^ -*^^ °^' ^^® tribunal adjourned sine die.
The text of the award was as follows:
^^ Sentence du Tribunal d^ Arbitrage Oonstitui en vertudu TraitS
conclu h Washingt^ le 29 fevrier 1892^ entre les Etats- Unis
WAmiriqvs et 8a Majeste la Beine du Boyaume- TJni de Orande-
Bretagne et WIrlande.
^'Attendu que, par un Traits entre les fitats-XTnisd'Am^rique
et la Orande-Bretagne, sigu^ k Washington le 29 fevrier 1892,
et dont les ratifications par les Gouvernements des deux Pays
ont ^t^ ^chang^es k Londres le 7 mai 1892, 11 a et^, entre autres
stipulations, convenu et r^gl^ que les difi[(6rends qui avaient
surgi entre le Gouvernement des £!tats-Uuis d*Am6rique et le
Gouvernement de Sa Majeste Britanuique, an sujet des droits
de juridiction des £!tats-Unis dans les eaux de la mer de Beh-
ring, et aussi relativement k la preservation des phoques k
fourrure habitant on frequentant ladite mer et aux droits des
citoyens et des sujets des deux Pays en ce qui conceme la
capture des phoques k fourrure se trouvant dans lesdites eaux
on les fi^quentant, seraient soumis k un Tribunal d' Arbitrage
compost de sept Arbitres, qui seraient nomm^t) de la maniere
suivante, savoir: deux Arbitres seraient d^sign^s par le Pre-
sident des fitats-Uuis; deux Arbitres seraient d^sign^s par Sa -
Msyeste Britanuique; Son Excellence le President de la B;^-
publique Fran^aise serait prie, d'un commun accord, par les
Hautes Parties contractantes de designer un Arbltre; Sa Ma-
jeste le Roi d'ltalie serait prie de la meme maniere de designer
un Arbitre; Sa Majesty le Roi de Suede et de Norvege serait
prie de la m6me maniere de designer un Arbitre: les sept
Arbitres ainsi nomm^s devant ^tre des jurisconsultes d'une
reputation diatinguee dans leurs pays respectifs, et les Puis-
sances auxquelles lenr designation serait remise devant etre
prices de choisir, autant que x)0S8ible, des jurisconsultes sachant
la langue anglaise;
"Et attendu qu'il a ete pareillement convenu, par Particle II
dudit Traite, que les Arbitres se reuniraient k Paris dans les
vingt jours qui suivraient la remise de contre-memoires men-
tionnes k Particle IV, qu'ils examineraient et d^cideraient avec
impartiality et soin les questions qui leur etaient ou qui leur
seraient sonmises dans les conditions pr^vues par ledit Traite,
de la part des Gouvernements des £tats-Unis et de Sa Ms^este
Digitized by LjOOQIC
936 INTERNATIONAL AEBITBATIONS.
Britaimiqae respectiveinent, et que toutes lea qaestions ex-
aminees par le Tribaual, y comprin la sentence finale, seraient
d^cid^es par les Arbitres k la majorite absolue des voix;
"Et attendu que, par Farticle VI dadit Traits, il a 6t6
pareilleinent convenu ce qui suit:
" ' En vue de la decision des questions soumises aux Arbitres,
il est entendu que les cinq points suivants leur seront soumis,
afin que leur sentence comprenne une decision distincte sor
chacun desdits cinq points, savoir:
"^1. Quelle juridiction exclusive dans la mer aujourd'hni
connue sous le nnm de mer de Behritig et quels droits exclusife
sur les pecheries de phoques dans cette mer la Russie a-t-elle
affirm^s et exerces avant et jusqu'iY I'epoque de la cession de
1' Alaska aux £tats-Unis!
"'2. Jusqu'd quel point la revendication de ces droits de
juridiction en ce qui concerne les pecheries de phoques a-t-elle
etc reconnue et conc^dee par la Grande-Bretii|?ne?
"^3. L'espace de mer aujourd'hui connu sous le nom de mer
de Behring etait il compris dans Fexpression Oc6an Facijique,
telle qu'elle a ^te employee dans le texte du Traits conclu en
1825 entre la (xrande-Bretagne et la Russie, et quels droits, si
droits il y avait, la Russie a-t-elle possedes et exclusivement
exerces dans la mer de Behring apres ledit Traite?
"^4. Tous les droits de la Russie, en ce qui concerne la juri-
diction et en ce qui concerne les pecheries de i)hoques, dans la
partie de la mer de Behring qui s'etend k I'Est de la limite
maritime determini'e par le Traite du 30 mars 1867 entre les
Iiltats-Unis et la Russie, ne sont ils pas int^gralement passes
aux fitats-Unis en vertu de ce meme Traits I
" '5. Les Etats-Uuis ont-ils quelque droit, et, en cas d'affir-
mative, quel droit ont-ils, soit A la protection, soit 'k la pro-
pri^t^ des phoques a fourrure qui tr4(|uenteut les lies appar-
tenant aux fitats Unis dans la mer de Behring, quand ces
phoques se trouveut en dehors de la limite ordinaire de trois
mi lies?'
"Et attendu que, par Particle VII dudit Traits, il a 6tiS
pareillement convenu ce qui suit:
" * Si la decision des questions qui pr^cMent, en ce qui con-
cerne la juridiction exclusive des ^^tatsdnis, laisse les choses
en tel 6t'dt que le concours de la Grande Bretagne soit neces-
saire pour I'etablissement de Reglements en vue de la protec-
tion et de la preservation convenables des ])hoques t\ fourrure
habitant ou fr^quentaut la mer de Behring, les Arbitres auront
t\ determiner quels Reglements communs sont ni^cessaires, en
dehors des li mites de la juridiction des Gouvernements res-
pectifs, et sur quelles eaux ces Reglements devraient s^appli-
quer, . .
"*Les Hautes Parties contractantes s'engagent en outre ^
unir leurs efforts pour obtenir I'adhesion d'autres Puissances
a ces Reglements';
" Et attendu que, par I'article VIII dudit Traite, apres avoir
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 937
expos^ que les Hautes Parties contraetaiites n'avaient pii
s'entendre sor uiie formale qui comprit la question des respon-
sabilit^s H la charge de I'uue d'elles, ^ raison des prejudices
all^gues avoir ^t^ causes ^ Pautre, ou aux citoyens de I'autre,
ilPoccasion des reclamations presentees et souteuues parladite
Partie, et qu'elles ' desiraient que cette question secoudaire ne
suspeudit on ue retardat pas plus longtemps la production et
la decision des questions principales,' les Hautes 'Parties con-
tractantes sont conveuues que ' chacune d'elles pourrait sou-
mettre aux Arbitres toute question de fait irapiiqu^e dans
lesdites reclamations et demander une decision ^ cet ^gard,
apr^s quoi la question de la responsabilite de chacun des deux
Gouvernements H raison des faits etablis serait mati^re k
n^gociations ulterieures';
"Et attendu que le President des fitats-Unis d'Am^rique a
designe I'Honorable John M. Harlan, Juge de la Cour Su-
preme des fitats-Unis, et THonorable Jolin T. Morgan, S^na-
teur des fitats-Unis, pour etre deux desdits Arbitres; que
Sa Majeste Britanni(]ue a design^ le Tres Honorable Lord
Hannen et PHonorable Sir John Thompson, Ministre de la
Justice et Attorney General pour le Canada, pour etre deux
desdits Arbitres; que JSon Excellence le President delaE^pu-
blique Fran9aise a designe le Baron Alphonse de Courcel,
Senateur, Ambassadeur de France, pour 6tre un desdits
Arbitres; que Sa Majeste le Roi d'ltalie a d^sign^ le Marquis
EmilioVisoonti Venosta,ancien Ministn^desAffairesetraugeres
et senateur du Royaumed'Italie, ])ouretre un desdits Arbitres,
et que Sa Majeste le Roi de Suedr et de Norv^ge a designe M,
Gregers Gram, Ministre d'fitat, pour etre un desdits Arbitres;
"Et attendu que Nous susnommes, Arbitres designes et in-
vestis de la maniere qui vient d'etre relatee, ayant accepte de
prendre la charge de cet Arbitrage, et Nous etant dument
reunis ^ Paris, avons precede avec impartialite et soin ^
I'examen et ^ la decision de toutes les questions qui ont ete sou-
mises ^ Nous, Arbitres susnommes, en vertu dudit Traite^ ou d>
Nous presentees, au nom des Gouvernements des fitats-Dnis
et de Sa Majeste Britannique respectivement, de la maniere
prevue par ledit Traite;
'^ Nous Arbitres susnommes, ayant examine avec impartia-
lite et soin lesdites questions, decidons et pronon^ons de meme,
sur lesdites questions, par notre presente Sentence, de la ma-
niere qui suit, Ji savoir :
** En ce qui concerne les cinq points mentionnes dans Paiticle
VI et sur chacun desquels notre jugement doit comprendre une
decision distincte. Nous decidons et pronon^ons ce qui suit:
" Sur le premier des cinq points susdits, Nous, Arbitres sus-
nommes, le Baron de Oourcel, le Juge Harlan, Lord Hannen,
Sir John Thompson, le Marquis Visconti Venosta, et M.
Gregers Gram, constitnant la majorite des Arbitres, decidons
et prononcons ce qui suit:
"Par Pukasede 1821 la Russie a revendique des droits de
Digitized by LjOOQIC
938 INTERNATIONAL ARBITRATIONS.
juricliction, dans la mer coDime aujourd'hai sons le nom de mer
de Behring, jusqu'^ la distance de cent milles italiens au large
des cotes et iles lui apparteuant; mais, an coars des negoeia-
tions qui ont about! s\ la conclusion des Trait^s de 1824 avec
les I5tats-Unis et de 1825 a vec la Grande- Bretagne, elle a adniis
que sa juridiction dans ladite mer serait limitee ^ nne portee de
cannon de la cote; et il apparait que, depuis cette 6poque jus-
qu'a r^poque de la cession de PAlaskaaux fitats Unis, elle n'a
jamais affirm^, en fait ni exerc6 aucune juridiction exclusive
dans la mer de Behring, ni aucun droit exclusif sur les p^che-
ries de phoques a fourrure dans ladite mer, au del^ des limites
ordiuatres des eaux territoriales.
" Sur le second des cinq points susdits, Nous, Arbitres sus-
nommes, le Baron de Courcel, le Juge Harlan, Lord Hannen,
Sir John Thompson, le Marquis Viscontl Venosta, et M.
Gregers Gram, constituant la majorite des Arbitres, decidons
et pronon9ons que la Grande-Bretagne n'a reconnu ni concede
a la Russie aucun droit k une juridiction exclusive sur les
p^cheries de phoques dans la mer de Behring, en dehors des
eaux territoriales ordinaires.
^< Sur le troisi^me des cinq points susdits, et quant a la partie
dudit troisi^me point oil Nous est soumise la question de savoir
si I'espace de mer aujourd'hui connu sous le nom de mer de
Behring (^tait compris dans Fexpression Ocean Facijique telle
qu'elle a ^t^ employee dans le texte du Trait<^ de 1825 entre la
Grande Bretagne et la liussie, Nous, Arbitres susnomm^s, de-
cidons et pronon^ous iYTunanimite que I'espace de mer aujour-
dMiui connu sous le nom de m^rde Behring 6tait compris dans
Fexpression Ocean Pacifique telle qu'elle a ^t6 employee dans
ledit Traits.
^^ Et quant k la partie dudit troisi^me point d'apr^ laqaelle
Nous avons a decider quels droits, si droits il y avait, la Kussie
a poss^d^s et exclusivement exerc^s apr^s ledit Traits de 1825,
Nous, Arbitres susnomm^s, le Baron de Oourcel, le Juge Har-
lan, Lord Hannen, Sir John Thompson, le Marquis Visconti
Venosta, et M. Gregers Gram, constituant la miyorit^ des
Arbitres, decidons et pronon§ons que la Kussie n'a poss^d^ ni
exerc6 apres le Trait('? de 1825, aucun droit exclusif de juridic-
tion dans la mer de Behring ni aucun droit exclusif sur les
pOcheries de phoques dans cette mer, au deUY de la limite ordi-
naire des eaux territoriales.
" Sur le quatrieme des cinq points susdits. Nous, Arbitres
susnommes, decidons et pronoufons h Tunaniniit^ que tons les
droits de la Eussie, en ce qui concerne la juridiction et en ce
qui concerne les pecheries de phoques, dans la partie de la mer
de Behring qui s'^tend h I'Est de la limite maritime determin^e
par le Trait<^ du 30 mars 1867 entre les fitats-Unis et la Eussie,
sout int^gralement passes aux £tats-Unis en vertu de ce meme
Traits.
" Sur le cinqui^me des cinq points susdits. Nous, Arbitres
susnommes, le Baron de Courcel, Lord Hannen, Sir John
Thompson, le Marquis Visconti Venosta, et M, Gregers Gram,
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 989
constituant la mi^orit^ des Arbitres, d^cidons et pronoii9ons
qae lea fitats-Unis n'ont aacan droit de protection oa de
propria t6 sur les T»lJoques si fourrure qui fr^queutent les ilea
appartenaiit aux !EtatsUnis dans la mer de Bebring, quaud
ces phoques se trouvent en dehors de la limite ordinaire de
trois inilles.
" Et attendu que les decisions ci-dessus relat^es, sur les ques-
tions concernant lajuridietion exclusive des Etats-Unis men-
tiouuesdans Particle VI, laissent les choses en ^tat tel que le
coucours de la Grande- Bretagne est necessaire pour I'^tablisse-
ment de K^glements en vue de la protection et de la preser-
vation convenables des pboques ^ fourrure habitant ou fr^-
quentant la mer de Behring, le Tribunal ayant d6cid6 h la
majority absolue des voix sur chacun des Articles des B^gle-
ments qui suivent, Nous, Arbitres susuomm^s, le Baron de
Gourcel, Lord Hannen, le Marquis Visconti Venosta, et M.
Gregers Gram, donnant notre assentiment k Fensemble des
articles des Roglements qui suivent, et constituant la majority
absolue des Arbitres, decidons et pronon^ons, d'apres le mode
prescrit par le Traite, que les Reglements communs qui sui-
vent, applicables en dehors des limites de lajuridietion dts
Gouvernements reapectifs, soiit necessaires, et qu'ils doiveiit
s'etendre sur les eaux ci-apres determin^es.
"Article 1.
"Les Gouvernements des Rtats-Unis et de la Grande-Bre-
tagne interdiront k leurs citoyens et sujets respectifs de tuer,
]irendre ou poursuivre, en tout temps et de quelque nianiere
que ce soit, les aniniaux comninn^ment appek^s pboques a four-
rure, dans une zone de soixante milles autour des lies Pribilov,
en y comprenant les eaux territoriales.
"Les inilles mentionn^s dans le paragrapbe pr^'cedent sont
des milles g^ograpbiques de soixante au degre de latitude.
"Article 2.
"Les deux Gouvernements interdiront ti leurs citoyens et
sujets respectifs de tuei', prendre ou poursuivre les pboques 'k
fourrure, de (juelque nianiere que ce soit, pendant la saison
s'^tendant cbaque aun^e du 1'*^ niai au 31 juillet inclusivement,
sur la haute mer, dans la partie de I'oc^an Paciiique, en y com-
prenant la mer de Bebring, qui est sise au Kord du 35® degr^
de latitude Nord, et k TEst du 180« degre de longitude de
Greenwich jusqu' i\ sa rencontre avec la limite maritime decrite
dans Particle 1'*^ du Traiti* de 1807 entre les fitats Unis et la
Russie, et ensuite ii I'Est de cette ligne jusqu'au d^troit de
Bebring.
"Article 3.
"Pendant la periode de temps et dans les eaux ou la peche
des phoques a fourrure demeurera permise, les navires 'X voiles
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940 INTERNATIONAL ARBITRATIONS.
seront seals admis k I'exercer oa k s'associer aax op^ratioos de
cette peche. lis auront cependant la i'acult6 de 8e faire assis-
ter par des pirogues ou aatres embarcations non pont^es, maes
par des pagaies, des rames oa des voiles, da geure de ceUes
qui soDt communement employees comme bateaax de i>^be.
"Article 4.
" Toat navire i\ voiles autoris^ k se livrer k la p^cbe des
phoques k fournire devra ^tre muni d'une licence sp^ciale
li^livree jV cet efl'et par sou Gouvernement et devra porter un
pavilion distinctif qui sera d6termin6 par ledit Gouvernement.
"Article 5.
" Les patrons des navires engages dans la p^cbedes pboques
k fourrure devront mentionner exactement sur leurs livres de
bord la date et le lieu de cbaque operation de pecbe des
pboques k fourrure, aiusi que le nombre et le sexe des pboques
captures cbaque jour. Ces mentions devront C^tre commani-
qu^es par cbacun des deux Gouvernements k I'autre ^la fin de
cbaque saison de x>ecbe.
"Article 6.
" L'emploi des filets, des armes k feu et des explosifs sera
interdit dans la pecbe des pboques k fourrure. Cette restric-
tion ne s'appliquera pas aux fusils de cbasse, quand cette pecbe
sera pratiqu^e en debors de la mer de Bebring et pendant la
saison oil elle pourra etre l^gitimement exerc^e.
"Article 7.
" Les deux Gouvernements prendront des mesures en vue de
contrdler I'aptitude des bommes autoris^^s ^exercerla pecbe
des pboques k fourrure; ces bommes devront ^tre reconnus
aptes k nianier avec une babilet^ suffisante les armes au moyen
desquelles cette pecbe pourra 6tre faite.
"Article 8.
" Les Ri'glements contenus dans les pr^^c^dents articles ne
s'appliqueront pas aux Indieiis babitaut sur les cdtes du terri-
toire des ^tats-Unis ou de la Grande Bretagne et pratiquant
la pecbe des pboques k fourrure dans des pirogues ou embar-
cations non pontics, non trausport^es par d'autres navires, ni
employees k I'usage de ceux-ci, mues exclusivement k I'aide de
pagaies, d'aviroiis ou de voiles, et raanoeuvr^es cbacane par
cinq personnes au plus, de la maiiiere jusqu'^ present asit^
par les Indiens; pourvu que ceux-ci ne soieut pas engages an
service d'autres personnes, et qu'alors qu'ils cbassent ainsi
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FUR SEAL ARBITRATION. 941
daii8 des pirogues ou embarcatious non pont^es, lis ne ponr-
saivent pas les phoqaes k foarrore, en dehors des eaux terri-
toriales, en vertu d'eugagements contractus pour la livraison
des peanz k une person ne quelconque.
*'Gette exception n'aura pas pour eflfet de i)orter atteinte k
la legislation nationale de I'un ou de I'antre des deux pays;
elle ne s'^tendra pas anx eaux de la mer de Beliring, ni aux
eaux des passes Aleoutienues*
"Aucune des dispositions qui pr^cfedent n'a pour objet de
s'opposer k ce que les Indiens soient employes, coninie chas-
seurs ou A tout autre titre, ainsi qu'ils Font 6t4' jusqu'ii present,
sur des navires se livrant k la x)Oursuite des phoques 'k Iburrure.
"Article 9.
"Les E^glements comnmns ^tablis par les Articles prece-
dents, en vue de la protection et de la preservation des [)hoques
k fourrure, demeureront en vigueur jusqu'^ ce qu'ils aient ete
en tout ou partie abolis ou modifies par un accord entre les
Gouvernements des Ktats-Unis et de la Grande-Bretagne.
"Lesdits Keglements communs seront soumis tous les cinq
ans k un nouvel examen, pour que les deux Gouvernements
interesses se trouvent en mesnre d'apprecier, k la lumifere
de I'experience acquise, s'il y a lieu d'y apporter quelque
modification.
"Etattendu que le Gouvernement de Sa Majeste Britan-
nique a soumis au Tribunal d' Arbitrage, par application de
1' Article VIII dudit Traite, certaines questions de fait impli-
qu^es dans les reclamations dont il est fait mention audit
article YIII, et a soumis egalement k Nous, formant ledit Tri-
bunal, un expose des faits dans les termes suivants:
" 'Conclusions de fait proposiSes par l'Agent de
LA Grande-Bretagne, accept^es par l'Agent des
fiTATS-UNIS, QUI EN ADMET L'EXACTITUDB, ET SOUMISES
1 l'examen du Tribunal d' Arbitrage:
** < 1. Que les diverses visites et saisies de navires ou de
marchandises et les diverses arrestations de patrons et d'equi-
pages, mentionuees dans I'Annexe au Memoire Britannique,
pages I k 60 inclusivement, ont ete faites par autorite du Gou-
vernement des £tats-Unis; les questions se rapportant k la
valeur desdits navires ou de leur contenu, ensemble ou separe-
ment, et la question de savoir si les navires designes dans
I'Annexe au Memoire Britannique, ou certains d'entie eux,
etaient, en totalite ou en partie, la propriete de citoyens des
fitats-IJnis, ont ete retirees et n'ont pas ete I'objet de Texamen
du Tribunal, sous cette reserve que les fitats-Unis gardent le
droit de souiever ces questions ou quelqu'une d'entre el les,
s'ils le jugent k propos, dans toute negociation ulterieure pou-
vant engager la responsabilite du Gouvernement des £tats-
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942 INTERNATIONAL ARBITRATIONS.
Unis, en ce qui tonche le payement des sonimes mentioiinees
dans PAnnexe an M^'moire Britanuique.
^< ' 2. Qae les susdite» saisies, sauf en ce qui conoerne le
PathfindeTj saisi k NealiBay, ont ^t6 eftectuees dans la merde
Behring, aux distances de la cote mentionnee au tableau ci-
annex^, sous la lettre G;
" ^3. Que lesdites visites et saisies de navires ont 4te faites
par des navires arm^s pour le service public des Etats-Unis,
dont les commandants avaient re§u, toutes les f«>i8 qu'ellesont
eu lieu, du pouvoir ex^cutif du Gouveniemeut des fitats-Unis,
des instructions dont uu exemplcure est reproduit en copie ci-
apr^s (annexe A), les autres exemplaires desdites instructions
^tant conformes 4 ce modcle snr les points essentiels; que, dans
toutes les occasions oii des poursuites entam^es devaut les
Cours de district des Jfitats-Unis ont etc suivies de condainna
tions, ces poursuites ont debut4^ par le d^pot d'un acte d'ac-
cusation, dont un modele est annexe ci-dessous (annexe B),
les actes d'accusation deposes dans les autres proci'^dures etant^
en tons points essentiels, semblables il ce modele; que les actes
ou d^lits, allcffu^s comme motifs de ces visites et saisies, ont
6te accomplis ou commis dans la mer de Behring, aux distances
de la c6te ddja indicjui^es; que, dans tons les cas ou une con-
damnation a etc prononcee, excepte ceux on les navires ont
6t^ relach^s aprc^s condamnation, la saisie a ^te approuvee par
le Gouvernement des fitats-Unis, et que, dans les cas oil les
navires ont 6te relach^'s. la saisie avait ct6 op^ree par autorite
du Gouvernement des Etats-Unis; que les amendes et empri-
sonnements susdits ont cte prononces k raison dMnfractions
aux lois nationales des !^tats-Unis, infractions toute commises
dans la mer de Behring, aux distances de la cote d^j^
indiquces;
*' * 4. Que les diflP^rents ordres nientionnes dans Tannexe ci-
jointe sous la lettre O, enjoignant a certains navires de quitter
la mer de Behring ou de ne pas y entrer, ont ^te donnes par
des navires armes pour le service public des Etats-Unis, dont
les commandants avaient, toutes les fois qu'ils ont donn6 ces
ordres, des instructions conformes h celles mentionnees ci-des-
sus, sous le n<* 3, et que les navires qui ont rej^u ces injonctions
^.taient occupes k la chasse des phoques ou faisaient route pour
entrependre cette cbasse; et que cette fajon de proceder a 6te
sanctionn{fe par le Gouvernement des Etats-Unis;
" * 5. Que les Cours de district des fitats-Unis, devant les-
quelles des poursuites ont ^t^ entam6esou suivies pour obtenir
des condamnations contre les navires saisis dont il est fait
mention dans I'Annexe au Memoire de la Grande-Bretagne,
pages 1 i\ 00 inclusivement, avaient tons droits de juridiction
et pouvoirs appartenant aux Cours d'amiraut^, y <!ompris la
juridiction de tribunaux de prises, mais que, dans cbaque cas
particulier, la sentence prononcee i)ar la Cour s'appuyait sur
les causes mentionnees dans I'acte d'accusation.
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PUR SEAL ARBITRATION. 943
"'Annexe A.
•"[Tradmtion.l
"'Di&PARTEMKNT DU Tr^SOR, CABINET DU SECRJJiTAIRE.
** * Washington, 21 avril 1886.
'' 'Monsienr, comme suite h une lettre du D^partemeut, en date de ce jour,
voiiB enjoignaut de vons diriger avec le vapeiir dii service des doaaDes
Btar, place sons Yotre comniandemeiit, vers les lies aux phoques, voiis etes
Far lea pr^sentes investi de tons les pouvoirs necessairea pour assurer
execution de la loi dont les termes sont contenus dans la section 1956 des
Statuts revises des £ tats- Un is, etordrevons est doun^ de saisir toutnavire
et d'arreter et livrer aux autorit<58 compdtentes tout iudividu ou toutes
personnes que voustronverie?. agissant en violation de la loi susmentionn^e,
apres qu'un avertissement suffisant leur aura ^X6, dound.
I' ' Vous saisirez <^galement tons spiritueux et arnies si feu que Ton cherche-
rait h introduire dans le pays sans nne permission en regie, en execution de
la Seotiou 1955 des Statuts revises et de la proclamation du President en
date du 4 f^vrier 1870.
" 'Respectueusemeut li vous.
"'Sign<5: C. S. Fairchild,
** ' Secretaire par int^im.
'* 'An capitaine M. A. Hkaly,
" ' Commandant le vapeur du service des doiianes Bear
d San-Francisco (Cali/ornie).^
** 'Annexe B.
•"[Traduction.]
"'dkvant la cour de district des ^:tats-uni8 poru lk district
d'alaska.
•"SESSION (SPECIAL TERM) D'AOCT 1886.
" 'A THonorable Lafaj^ette Dawson, jnge de Indite Cour de district.
** 'Le r^quisitoire a tin d'iuformation par lequel M. D. Hall, Attorney des
£tats-Unis pour le district d'Alaska, poursuivaut au nom des l^ltats-Unis
et present ici devant la Cour, en sa personne, comme repr^sentant des
^tats-Unis et en leur nom, contre lago^lette Thoi-niony ses agres, apparaux,
embarcatioDS, carge -son et matdriel, et contre toutes personnes intorvenant
comme ayant des inti^rc'ts engag<^s dans ce navire, en poursuite ^ fin de
confiscation, presente les ull4>gations et declarations suivantes:
" 'Que Charles A. Abbey, otUcier du service des douanes maritimes des
£tats-Unis, charg<^ d'une mission sp<^ciale dans les eanx du district d'Alaska,
ant^rieurement au pr<^sent jour, a savoir le 1^'' aodt 1886, dans les limites
du territoire d'Alaska et dans ses eanx, et dans les limites du district civil
etjndiciaire d'Alaska, k savoir dans Tdtendue des eanx de cette partie de
la mer de Behring qui appartient .indit district, dans des eanx navigables
pour des navires venant de la haute mer et jaugeant 10 tonneanx ou au-
dessus, a saisi le vaisneau on navire oomninn^Sment d^nomm^ go61ette, le
Thornton^ ses agres, apparaux, embarcations, cargaison et materiel, lesquels
dtaient la propri6t<S d'une ou de plusieurs personnes inconnues dudit
Attorney, et les a contisquds au profits des Etats-Unis pour les causes
ci-apres:
" 'Que ledit navire ou go<^letto a 6t<^- trouv^ se livrant h la destruction
des phoqaes h fourrnre, dans les limites du territoire d'Alaska et de ses
eaux, en violation des dispositions de la Section 1956 des statuts revises
des Stilts Unis ;
'"£t ledit Attorney declare que toutes les propositions oi-dessns ^non-
c^es et chacune d'elles sont et <^taient vraies, et qu'elles tombent sons la
juridiction maritime et d'amiraut<^ de cette Cour, et que, pour cette
raison, et en execution des statuts des £tat8-Unis dtablis et ^dict^s pour
Digitized by LjOOQIC
944
INTERNATIONAL ARBITRATIONS.
(le tela cas, le navire on la go^lette mentionn^e et d^crite ci dessns, jaa-
geaot pins de 20 touncanx, sea a^r« b, apparauz, embarcatioos, cargaison et
mati'^ricl ont 6t6 et soiii confisqiK^s au profit des I^tats-Unis, et que ladite
go^lette se trouve inaiiiteiiaut dans le district snsdit.
" *Ce pouninoi ledit Attorney deniande que Fhonorable Coar de justice
precede et a vise ooiume d'usagti en celte atfalre, et que toutes personnea
ayaut un intc^rH dans ladite ^oelette ou navire aoient oitrea par voie
d'aasignation g^n<5r:ile ou spc^cialei atiu de r^pondre aux propcisitiona aus-
^nonc^^es, et que, h la suite de la procedure h ce D^cessaire, ledit navire on
go^lette, ses a^fivs, apparaux, embarcations, carccaison et niaU^riei aoient
condamn^a ]>our ladite cause ou tout autre qu'il apparaltrait juate, par
arret foriuel ct di^'cret de cette honorable Cour, et conHsqu^s an profit dea-
dit.8 I^ltata-lJnia, nelou la forme des statuts desdits £tata-Unis, dtablia et
^dict4^ pour de tels cas.
"'Signe: M. D. Ball,
" * Attorney des ^iaia- Unis pour le district d* Alaska.*
*' 'Annexe C.
** ' La table ci-dessoua contient les noma des navires britauniquea em-
ployt's a la chasHe des )iho<|ue8, qui out cto saisia ou avertis par lea croi-
Heurs du Service des Douaues des I^tats-UniS; de 18^6 a 1890, et la distance
approximative de la tone oil ces saisies ont eu lieu. Cea distances aont
iudiqu(^ca, en ce (pn coucerne les navires Carolena, Thornton et Onward,
d'apns le touioignage <lu Commandant Abbey, de la Marine dea £tat8-
rnia(Voir 50" c^ongres, 2" scshihu; Senat; Documents ex^cntifa, n° 106,
pages 20, 30, 40). Klles soiit iudi(]ue€8, eu ce qui conceme les navires Anna
Jteckf }f\ P. Sayirard, Dolphin et (trace, d'apres le t^moignage du capitaine
Shepard, de la Marine du Tn sor d< s f^tats-Unis {IJrre lileuy fitata-Unis,
u" 2, .1890, pages 80-82. — Voir: Appendiee au M^moire britannique,
volume 1 11).^
Nom dn navire.
Carolena..
Thornton .
Onward...
Date do In saisio.
1" aoftt 1886 .
1" aoftt 1886 .
2 aoftt 1886...
Distaiu^e approximative de terre au
moment de la saiaie.
Favourite ' 2 aoftt 1 886,
Anna Beck
W. J*. Say ward . . .
Dolphin
Cirace
Alfred A damn
Ada
Triumph ..
Juanita
Pathfinder.
2juilletl887..
Qjuillet 1H87..
12juineMX87.
17jailktlS87.
10 aoftt 188;...
25 aoftt 1887...
4 aoftt 1887....
yijuillet 1K80.
2'.)jui]letl8«9.
Triumph , 11 juillet 1889
Black Diamond
i^iiy
Ariel
-I:
Kate
Minnie
Pathtindt-r.
11 juillet 1889...
6 aoftt 1889
:jO juillet 1889...
13 aoftt 1889...
ISjuUlet 1889.
27 marHl890...
75niille«
70 milles
llSmilles
Averti par 1© Cor win, & peu pn>B
dans la mAme positiou que 1 On-
ward.
66millee
59mille«
40 milles
96 milles
62 milles
15 milles
Averti par le Ru^h de nepa.M entrer
dans la mcr do Beliriug.
66 milles
50 milles
Averti par le Rush da voir k quit-
ter la nier de Behring. — Position
au moment de ravertirtsemeut : ( ?)
35 milles
66 m i lies
Averti par le Ku»h d avoir k quit-
ter la nier de Behring.
Averti par le Kunh d'avoir k quit-
ter la mer de Behring.
65 milleH
Saisi dans la baie de Keah (>)
Navire des
l^tata-Unis
aui a faut
I saiaie.
(Jorwiu.
Idi-m.
Idem.
Rush.
Idem.
id<-m.
Idem.
Idem.
Bvar.
RuhIi.
Idem.
Idem.
Idem.
Idem.
Corwin.
(') La bale de Neah est situ6e dans I'fitat de Washington, et le Pathfinder y a ^t^ aaisi,
du chefded61it8 comrais par lui dana la mer de Behring Tannee pr6c6dente. Ce bAti-
ment fut rolAch6 deux Jours plus tard.
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by Google
FUR SEAL ARBITRATION. 945
"Etattendu que le Gouvernement de Sa Majesty Britan-
iiique a demand^ ^ Nous, Arbitres susnomm^s, de d^^cider sur
lesdites questions de fait, telles qu'elles r^»sulteiit de Fexpos^
8usmentioiiD^; que I'Agent et les Gonseils du Gouvernement
des fitats-Unis out, en notre presence et s'adressant ^ Kous,
declare que ledit expose des faits ^tait confirm^ par les dispo-
sitions des t^moins, et qu'ils 8¥>taient mis d'accord avec TAgent
et les Gonseils de Sa Majesty Britannique pours'en remettre k
Nous Arbitres de dire et prononcer veritable, en taut que nous
le jugerions k proi)os, ledit expose des faits;
'<Noua, Arbitres 8usnomm6s, disons et prononcons k I'una-
nimit^ que lesdits faits, tels qu'ils se trouvent dans ledit expose,
sont v^ritables.
^^Etattendu que toutes et chacune des questions qui out
6t6 examinC»es par le Tribunal ont et6 d^cid^es k la majority
absolue des voix,
'*Nous, le Baron de Gourcel, Lord Hannen, le Juge Harlan,
Sir John Thompson, le S^nateur Morgan, le Marquis Visconti
Venosta et M. Gregers Gram, 6tant entendu que les Arbitres
qui se sont trouves en minorit^ sur certaines questions ne retir-
ent pas leurs votes, d^clarons que le pr(3sent acte contient la
decision finale et la Sentence 6crite du Tribunal, conform(jment
aux prescriptions du Traits.
" Fait en double A. Paris, et signe par Nous, le quinzi^me
jour d'aoiit de Fannie 1893.
"Alph. de Oourcel.
"John M. Harlan.
"John T. Morgan.
" Hannen.
"Jno S D Thompson.
"Visconti Venosta.
"G. Gram."
" [English veraion.]
^^Atcard of the Tribunal of Arbitration constituted under the
Treaty concluded at Washington^ the 29th of February 1892^
between the United States of America and Her Majesty the
Queen of the United Kingdom of Oreat Britain and Ireland.
"Whereas by a Treaty between the United States of America
and Great Britain, signed at Washington, February 29, 1892,
the ratifications of which by the Governments of the two
Countries were exchanged at London on May the 7*^^ 1892, it
was, amongst other things, agreed and concluded that the
questions which had arisen between the Government of the
United States of America and the Government of Her Britan-
nic Majesty, concerning the jurisdictional rights of the United
States in the waters of Behring's Sea, and concerning also the
preservation of the fur-seal in or habitually resorting to the said
sea. and the rights of the citizens and subjects of either
5627 GO
Digitized by LjOOQIC
946 INTBBNATIONAL ARBITRATIONS.
Gountry as regards the taking of fur-seals in or habitaally
resorting to the said waters, should be submitted to a Tribunal
of Arbitration to be composed of seven Arbitrators, who should
be appointed in the following manner, that is to say: two
should be named by the President of the United States; two
should be named by Her Britannic Majesty; His Excellency
the President of the French Republic should be jointly
requested by the High Contracrting Parties to name one; His
Majesty the King of Italy should be so requested to name one;
His Majesty the King of Sweden and Norway should be so
requested to name one; the seven Arbitrators to be so named
should be jurists of distinguished reputation in their re-^pec-
tive Countries, and the selecting Powers should be requested
to choose, if possible, jurists who are acquainted with the
English language;
^< And whereas it was further agreed by article II of the said
Treaty that the Arbitrators should meet at Paris within twenty
days after tlie delivery of the Counter-Cases mentioned in arti-
cle IV, and should proceed impartially and carefully to examine
and decide the questions which had been or should be laid
before them as in the said Treaty provided on the part of the
Governments of the United States and of Her Britannic Maj-
esty respectively, and that all questions considered by the Tri-
bunal, including the final decision, should be determined by a
majority of all the Arbitrators;
"And whereas by article VI of the said Treaty, it was fur-
ther provided as follows: ^In deciding the matters submitted
to the said Arbitrators, it is agreed that the following five
points shall be submitted to them in order that their award
shall embrace a distinct decision u|)on each of said five x)oints,
to wit:
"*1. What exclusive jurisdiction in the sea now known as
the Behring's Sea, and what exclusive rights in the seal fish-
eries therein, did Russia assert and exercise prior and up to
the time of the cession of Alaska to the United States?
"*2. How far were these claims of jurisdiction as to the seal
fisheries recognized and conceded by Great Britain?
" *3. Was the body of water now known as the Behring's Sea
included in the phrase Pacific Ocean^ as used in the Treaty of
1825 between Great Britain and Russia; and what rights, if
any, in the Behring's Sea were held and exclusively exercised
by Russia after said Treaty?
^'^4. Did not all the rights of Russia as to jurisdiction and
as to the seal fisheries in Behring's Sea east of the water
boundary, in the Treaty between the United States and Russia
of the 30*** of March 1867, pass unimpaired to the United States
under that Treaty!
"'5. Has the United States any right, and if so, what right
of protection or property in the fur-seals frequenting the islands
of the United States in Behring Sea when such seals are found
outside the ordinary three-mile limit?'
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FUB 8EA.L ARBITRATION. 947
"And whereas, by article VII of the said Treaty, it was
further agreed as follows:
" < If the determination of the foregoing questions as to the
exclusive jurisdiction of the United States shall leave the sub-
ject in such position that the concurrence of Great Britain is
necessary to the establishment of Regulations for the proper
protection and preservation of the fur-seal in, or habitually
resorting to, the Behring 8ea, the Arbitrators shall then deter
mine what concurrent Kegulations, outside the jurisdictional
limits of the respective Governments, are necessary, and over
what waters such Kegulations should extend;
" ' The High Contracting Parties furthermore agree to cooper-
ate in securiug the adhesion of other Powers to such Begula-
tions;'
"And whereas, by article VIII of the said Treaty, after
reciting that the High Contracting Parties had found them-
selves unable to agree upon a reference which should include
the question of the liability of each for the injuries alleged to
have been sustained by the other, or by its citizens, in con-
nection with the claims presented and urged by it, and that
^ they were solicitous that this subordinate question should not
interrupt or longer delay the submission and determination of
the main questions,' the High Contracting Parties agreed
that ^either of them might submit to the Arbitrators any
question of fact involved in said claims and ask for a finding
thereon, the question of the liability of either Government
upon the facts found, to be the subject of further negociation ; '
"And whereas the President of the United States of Amer-
ica named the Honourable John M. Harlan, Justice of the
Supreme Court of the United States, and the Honourable
John T. Morgan, Senator of the United States, to be two of
the said Arbitrators, and Her Britannic Majesty named the
Eight Honourable Lord Hannen and the Honourable Sir John
Thompson, Minister of Justice and Attorney General for
Canada, to be two of the said Arbitrators, and His Excellency
the President of the French Republic named the Baron de
Courcel, Senator, Ambassador of France, to be one of the
said Arbitrators, and His Majesty the King of Italy named
the Marquis Emilio Visconti Veuosta, former Minister of For-
eign Affairs and Senator of the Kingdom of Italy, to be one of
the said Arbitrators, and His Majesty the King of Sweden
and Korway named Mr. Gregers Gram, Minister of State, to
be one of the said Arbitrators ^
"And whereas We, the said Arbitrators, so named and
appointed, having taken upon ourselves the burden of the said
arbitration, and having duly met at Paris, proceeded impar-
tially and carefully to examine and decide all the questions
submitted to us the said Arbitrators, under the said Treaty,
or laid before us as provided in the said Treaty on the part of
the Governments of Her Britannic Majesty and the United
States respectively;
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948 INTERNA.TIONAL ARBITRATIONS.
" Now we, the said Arbitrators, having impartially and care-
fully examined the said questions, do in like manner by this
oar Award decide and determine the said questions in manner
following, that is to say, we decide and determine as to the
five points mentioned in article VI as to which our Award is
to embrace a distinct decision upon each of them :
•<As to the first of the said five points, We, the said Baron
de Oourcel, Mr. Justice Harlan, Lord Hannen, Sir John Thomp-
son, Marquis Visconti Venosta and Mr. Gregers Gram, being a
majority of the said Arbitrators, do decide and determine as
follows:
"By the Ukase of 1821, Russia claimed jurisdiction in the
sea now known as the Behring's Sea, to the extent of 100
Italian miles from the coasts and islands belonging to her,
but, in the course of the negotiations which led to the concln-
sion of the Treaties of 1824 with the United States and of 1825
with Great Britain, Russia admitted that her jurisdiction in
the said sea should be restricted to the reach of cannon shot
from shore, and it appears that, from that time up to the time
of the cession of Alaska to the United States, Russia never
asserted in fact or exercised any exc^lusive jurisdiction in Beh-
ring's Sea or any exclusive rights in the seal fisheries therein
beyond the ordinary limits of territorial waters.
"As to the second of the said five points, We, the said Baron
de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thomp-
son, Marquis Visconti Venosta and Mr. Gregers Gram, being a
majority of the said Arbitrators, do decide and determine that
Great Britain did not recognize or concede any claim, npon
the part of Russia, to exclusive jurisdiction as to the seal
fisheries in Behring Sea, outside of ordinary territorial waters.
"As to the third of the said five points, as to so much thereof
as requires us to decide whether the body of water now known
as the Behring Sea was included in the phrase ' Pacific Ocean'
as used in the Treaty of 1825 between Great Britain and Rus-
sia, We, the said Arbitrators, do unanimously decide and deter-
mine that the body of water now known as the Behring Sea
was included in the phrase ^ Pacific Ocean ' as used in the said
Treaty.
^^ And as to so much of the said third point as requires us
to decide what rights, if any, in the Behring Sea were held
and exclusively exercised by Russia after the said Treaty of
1825, We, the said Baron de Courcel, Mr. Justice Harlan, Lord
Hannen,- Sir John Thompson, Marquis Visconti Venosta and
Mr. Gregers Gram, being a majority of the said Arbitrators,
do decide and determine that no exclusive rights of jurisdiction
in Behring Sea and no exclusive rights as to the seal fisheries
therein, were held or exercised by Russia outside of ordinary
territorial waters after the Treaty of 1825.
"As to the fourth of the said five points, We, the said Arbi-
trators, do unanimously decide and determine that all the rights
of Russia as to jurisdiction and as to the seal fisheries in
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PUR SEAL ARBITEATION. 949
Behring Sea, east of the water boundnry, in the Treaty between
the United States and Rnssia of the 36'*^ March 1867, did pass
unimpaired to the United under the said Treaty.
''As to the fifth of the said live points, We, the said Baron
de Courcel, Lord Hannen, Sir John Thompson, -Marquis Vis-
conti Venosta and Mr. Gregers Gram, being a majority of the
said arbitrators, do decide and determine that the United
States has not any right of protection or property in the fur-
seals frequenting the islands of the United States in Behring
Sea, when such seals are found outside the ordinary three-mile
limit.
<^ And whereas the aforesaid determination of the foregoing
questions as to the exclusive jurisdiction of the United States
mentioned in Article VI leaves the subject in such a position
that the concurrence of Great Britain is necessary to the
establishment of Regulations for the proper protection and pres-
ervation of the fur seal in or habitually resorting to the Beh-
ring Sea, the Tribunal having decided by a majority as to each
Article of the following Regulations, We, the said Baron de
Courcel, Lord Hannen, Marquis Visconti Venosta and Mr.
Gregers Gram, assenting to the whole of the nine Articles of
the following Regulations, and being a majority of the said
Arbitrators, do decide and determine in the mode provided by
the Treaty, that the following concurrent Regulations outside
the jurisciictional limits of the respective Governments are
necessary and that they sliould extend over the waters herein-
after mentioned, that is to say:
"Article 1.
"The Governments of the United States and of Great
Britain shall forbid their citizens and subjects respectively
to kill, capture or pursue at any time and in any manner
whatever, the aniinals commonly called fur seals, within a
zone of sixty miles around the Pribilov Islands, inclusive of
tlie territorial waters.
"The miles mentioned in the preceding paragraph are geo-
graphical miles, of sixty to a degree of latitude.
"Article 2.
" The two Governments shall forbid their citizens and sub-
jects ri»spectively to kill, capture or pursue, in any manner
whatever, daring the season extending, each year, from the 1*'
of May to the 31** of July, both inclusive, the fur seals on the
high sea, in the part of the Pacific Ocean, inclusive of the
Behring sea, which is situated to the North of the 35*"^ degree
of North latitude, and eastward of the 180"* degree of longi-
tude from Greenwich till it strikes the water boundary de-
scribed in Article 1 of the Treaty of 18()7 between the United
States and Eussia, and following that line up to Behring
straits.
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950 INTERNATIONAL ABBITRATI0N8.
"ABTICLB 3.
<< During the period of time and iu tbe waters in wbich the
far seal fishing is allowed, only sailing vessels shall be per-
mitted to carry on or take part in far-seal fishing operations.
They will however be at liberty to avail themselves of the nse
of such canoes or undecked boats, propelled by paddles, oars,
or sails, as are in common use as fishing boats.
"Aetiole 4.
<* Each sailing vessel authorised to fish for fur seals must be
provided with a special license issued for that purpose by its
Government and shall be required to carry a distingoishing
flag to be prescribed by its Grovernment.
"Article 6.
" The mast/crs of the vessels engaged in fur seal fishing shall
enter accurately in their official log book the date and place of
each fur seal fishing operation, and also the number and sex
of the seals captured upon each day. These entries shall be
communicated by each of the two Governments to the other
at the end of each fishing season.
"Article 6.
" The use of nets, fire arms and explosives shall be forbidden
in the i'ur seal fishing. This restriction shall not apply to shot
guns when such fishing takes place outside of Behring's sea,
during the season when it may be lawfully carried on.
"Article 7.
"The two Governments shall take measures to control the
fitness of the men authorized to engage in fur seal fishing;
these men shall have been proved fit to handle with sufficient
skill the weapons by means of which this fishing may be car-
ried on.
"Article 8.
"The regulations contained in the preceding articles shall
not apply to Indians dwelling on the coasts of the territory of
the United States or of Great Britain, and carrying on fur
seal fishing in canoes or undecked boats not transported by
or used in connection with other vessels and propelled wholly
by paddles, oars or sails and manned by not more than five
persons each iu the way hitherto practised by the Indians, pro-
vided such Indians are not in the employment of other persons
Digitized by LjOOQIC
PUR SEAL ARBITRATION. 951
and provided that, when so hunting in canoes or undecked
boats, they shall not hunt fur seals outside of territorial
waters under contract for the delivery of the skins to any
person.
'^This exemption shall not be construed to affect the Munic-
ipal law of either country, nor shall it extend to the waters
of Behring Sea or the waters of the Aleutian Passes.
^^ Nothing herein contained is intended to interfere with the
employment of Indians as hunters or otherwise in connection
with fur sealing vessels as heretofore.
"Article 9.
''The concurrent regulations hereby determined with a
view to the protection and preservation of the fiir seals, shall
remain in force until they have been, in whole or in part,
abolished or modified by common agreement between the
Governments of the United States and of Great Britain.
''The said concurrent regulations shall be submitted every
five years to a new examination, so as to enable both interested
Governments to consider whether, in the light of past experi-
ence, there is occasion for any modification thereof.
"And whereas the Government of Her Britannic Miyesty
did submit to the Tribunal of Arbitration by article VIII of
the said Treaty certain questions of fact involved in the claims
referred to in the said article VIII, and did also submit to us,
the said Tribunal, a statement of the said facts, as follows, that
is to say :
'"Findings of fact proposed by the Agent of Great
Britain and agreed to as proved by the Agent for
THE United States, and submitted to the Tribunal
OP Arbitration for its consideration.
"'1. That the several searches and seizures, whether of
ships or goods, and the several arrests of masters and crews,
respectively mentioned in the Schedule to the British Case,
pages 1 to 60 inclusive, were made by the authority of the
United States Government. The questions as to the value of
the said vessels or their contents or either of them, and the
question as to whether the vessels mentioned in the Schedule
to the British Case, or any of them, were wholly or in part the
actual property of citizens of the United States, have been
withdrawn from and have not been considered by the Tribunal,
it being understood that it is open to the United States to raise
these questions or any of them, if they think fit, in any future
negotiations as to the liability of the United States Govern-
ment to pay the amounts mentioned in the Schedule to the
British Case;
"'2. That the seizures aforesaid, with the exception of the
Digitized by LjOOQIC
952 INTERNATIONAL ARHITRATIONS.
"Pathfinder" seized at Neah-Bay, were made in Behring Sea
at the distances from shore mentioned in the Schedule annexed
hereto marked "C;"
"'3. That the said several searches and seizures of vessels
were made by public armed vessels of the Unite<l States, the
commanders of whicli had, at the several times when they were
made, from the Executive Department of the Government of the
United States, instructions, a copy of one of which is annexed
hereto, marked "A" and that the others were, in all substan-
tial respects, the same: that in all the instances in which pro-
ceedings were had in the District Courts of the United States
resulting in condemnation, such proceedings were begun by
the filing of libels, a copy of one of which is annexed hereto,
marked "B '', and that the libels in the other proceedings were
in all substantial respects the same: that tlie alleged acts or
oifences for which said several searches and seizures were made
were in each case done or committed in Behring Sea at the
distances from shore aforesaid; and that in each case in which
sentence of condemnation was passed, except in those cases
when thevessels were released after condemnation, the seizure
was adopted by the Government of the United States: and in
those cases in which the vessels were released the seizure was
made by the authority of the United States; that the said
fines and imprisonments were for alleged breaches of the mu-
nicipal laws of the United States, which alleged breaches were
wholly committed in Behring Sea at the distances from the
shore aforesaid;
" '4. That the several orders mentioned in the Schedule an-
nexed hereto and marked '*0 " warning vessels to leave or not
to enter Behring Sea were made by public armed vessels of
the United States the commanders of which had, at the several
times when they were given, like instructions as mentioned in
finding 3, and that tlie vessels so warned were engaged in seal-
ing or "prosecuting voyages for that puri)08e, and that such
action was adopted by the Government of the United States;
" ' 5. That the District courts of the United States in which
any proceedings were had or taken for the purpose of con-
demning any vessel seized as mentioned in the Schedule to
the Case of Great Britain, pages 1 to 6(), inclusive, had all the
jurisdiction and powers of Courts of Admiralty, including the
prize jurisdiction, but that in each case the sentence pro-
nounced by the Court was based upon the grounds set forth in
the libel.
" 'Annex A.
'* * Treasury Department, Office of the Secretary.
*" IVashington, April 21, 1896.
" ' Sir,
*' ' Keferrinp; to Department letter of this ilate, directing yon to proceed
with the revenue-steamer lieaVf nnd^r your command, to the seal Islands,
etc., you are hereby clothed with full power to enforce the law contained
Digitized by LjOOQIC
FUR SEAL ARBITRATION. 953
in the provisions of Section 1956 of tlie United States' Revised Statutes, and
directed to seize ull vetMtels and arrest and deliver to the proper anthoritien
any or all persons whom you may detect violating the law referred to,
after due notice shall have been given.
" ' You will also seize any liquors or fire-arms att erapted to be introduced
into the country without proper permit, under the provisions of Section
1955 of the Revised Statutes, and tne Proclamation of the President dated
4'»" February, 1870.
"' Respectfully yours,
"'Signed: C. S. FaIrchild.
" * Acting Secretary.
"' Captain M. A. Hbaly,
" ^Commanding revenue-iteamer Bear, San- Francisco,. California.'
"'Annex B.
" 'in tilk district court of the united states for the district of
ALASKA.
'• 'AUGUST SPECIAL TERM. 1886.
" 'To the Honourable Lafayette Dawson, Judge of said District Court:
" 'The libel of information of M. D. Ball, Attorney for the United States
for the District of Alaska, who prosecutes on behalf of said United States,
and being present here in Court in his propi>r person, in the name and on
behalf of the said United States, against the schooner Thornton, her tacl^le,
apparel, boats, cargo, and furniture, and against all persons intervening
for their interest therein, in a cause of forfeiture, alleges and informs as
follows:
" 'That Charles A. Abbej', an officer in the Revenue Marine Service of
the United States, and on special duty in the waters of the district of
Alaska, heretofore, to wit, on the 1"' day of An,«:u8t, 1886, w.thin the limits
of Alaska Territory, and in the waters thereof, and within the civil and
judicial district of Ahuska, to wit, within the waters of that portion of
Behring sea belonging to the said district, on waters navigable from the
sea by vessels of 10 or more tons burden, seized the ship or vessel com-
monly called a schooner, the Thornton^ hor tackle, apparel, bouts, cargo,
and furniture, being the property of some person or persons to the said
Attorney unknown, as forfeited to the United States, for the following
causes :
" 'That the said vessel or schooner was found engaged in killing fur-
seal within the liniitN of Alaska Territory, and in the waters thereof, in
violation of section 1956 of the Revised Statutes of the United States.
"'And the said Attorney saith that all and singular the premises are
and were true, and within the Admiralty and maritime jurisdiction of
this Court, and that by re^uson thereof, and by force of the Statutes of the
United States in such cases made and provided, the afore mentioned and
described schooner or vessel, being a vessel of over 20 tons burden, her
tackle, apparel, boats, cargo, and furniture, became and are forfeited to
the use of the said United States, and that said schooner is now within
the district aforesaid.
" 'Wherefore the said Attorney prays the usual process and monition of
this honourable Court issue in this behalf, and that all persons interested
in the before-meutione<l an4 described schooner or vessel may be cited in
general and special to answer the premises, and all due proceedings being
had, that the said schooner or vessel, her tackle, apparel, boats, cargo,
and furniture may, for the cause aforesaid, and others appearing, be con-
demned by the definite sentence and decree of this honourable Court, as
forfeited to the use of the said United States, according to the form of
the Statute of the said United States in such cases made and provided.
'"Signed: M. D. Ball.
" ' United States DistHct Attorney for the Dintriet of Alaska.
Digitized by LjOOQIC
954
INTERNATIONAL ARBITRATIONS.
" 'Annex C.
"'The following table Bbows the names of the British seaHng-Tessels
seized or warned by United States rcvenne craizers 1886-1890, and the
approximate distance from laud when seized. The distances assigned in
the cases of the Carolena, Thornton and Onward are on the anthority of
U. S. Naval Commander Abbey (see 50»" Confi^ess, 2^** Session, Senate £xec-
ntive Documents N*" 106, pp. 20, 30. 40). The distances assigned in the
cases of the Anna Beck, W, P. Sayward, Dolphin and Grace are on the author-
ity of Captain Shepard U. S. R. M. (Blue Book, United States N^ 2, 1890.—
pp. 80-82. See Appendix, vol. III).'
Name of vesael.
Carolena
Thornton
Onward
Favourite
Anna Beck
W. P. Say ward....
I>olphin
(Irace
Alfred Adama
Ada
Triumph
Jnanita
Pathfinder
Triumph
Biacic Diamond...
Lily
Ariel
Kate
Minnie
Pathfinder
Date of fleiEure.
Approximate distance from land
when seized.
! United
States ves-
I sel making
seizure.
August 11886..
August iisse..
August 2 1886. .
August 2 1886.... {
July2l887
July91887
Julvl2 1887
July 17 1887
August 10 J 887..-.
August 25 1887....
August 4 1887.... I
Julv311889
July 29 1889
July 11 1889 {i
July 111889 j
Auf(UHt6l889
July :iO 1889 1
AugUHtl3 1889....l
July 15 1889 ,
March 27 1890
I
75 mile* Corwin.
70 miles Corwin.
115 miles j Corwin.
Warned by C.orwin in about same ,
position as Onward.
66 miles I Rush.
50 miles ' Rush.
40 miles ' Rush.
96 miles Rush.
62 miles Rush.
15 miles ■ Bear.
Warned by Rash not to enter fieh- I
ring Sea.
66 mi les I Rush.
50 miles ' Rush.
Ordered out of Behrine Seaby Rush . I
( 7) As to position wben warned. I
35 miles Rush.
66milea ' Rush,
Ordered out of Behring Sea by Ruah . 1
Ditto
65 miles ' Rush.
Seized in Neah Bay (») j Corwin.
(1) Keah Bay is in the Stat4^ of Washington, and the Pathfinder was seized there on
charges made against her in the Behring ^a in the previous year. She was released two
days later.
"And whereas the Government of Her Britannic Majesty
did ask the said Arbitrators to find the said facts as set forth
in the said statement, and whereas the Agent and Counsel for
the United States Government thereupon in our presence in-
formed us that the said statement of facts was sustained by the
evidence, and that they had agreed with the Agent and Coun-
sel for Her Britannic Majesty that We, the Arbitrators, if we
should think fit so to do might find the said statement of facts
to be true.
"Now, We, the said Arbitrators, do unanimously find the
facts as set forth in the said statement to be true.
"And whereas each and every question which has been
considered by the Tribunal has been determined by a majority
of all the Arbitrators;
"Now We, Baron de Courcel, Lord Hannen, Mr. Justice
Harlan, Sir John Thompson, Senator Morgan, the Marquis
Visconti Venosta and Mr. Gregers Gram, the respective
Digitized by
Google
PUB SEAL ARBITRATION. 955
minorities not withdrawing their votes, do declare this to
be the final Decision and Award in \Triting of this Tribunal
in accordance with the Treaty.
'^Made in duplicate at Paris and signed by us the fifteenth
day of August in the year 1893.
"And We do certify this English Version thereof to be true
and accurate.
"Alph. de Coubcbl.
"John M. Harlan.
"John T. Morgan.
"Hannen.
"Jno S D Thompson.
« VisooNTi Venosta.
"G. GbamA
" D^larations faites par le Tribunal d'Arhitrage et Prhentees
aux GouvernementH des £taU- Unis et de la Qrande-Brelagne
pour Sire Prises en Consideration par ces Oouvernements.
"I.
"Les Arbitres d^clarent que les Reglements communs tels
qu'ils sont etablis par le Tribunal d' Arbitrage, en vertu de
Particle VII du Traits du 29 f(6vrier 1892, n'^tant applicables
que sur la haute mer, devront, dans leur pens^e, ^tre compl^t^s
par d'autres E^glements applicables dans les limites de la
souverainet^ de chacune des deux Puissances interess^es et
qui devront 6tre fix6s par elles d'uu commun accord.
"II.
" Vu I'^tat critique auquel il parait constant que la race de?
phoques k fourrure se trouve actuellement r^duite par suite de
circonstances incompl^tement ^claircies, les Arbitres croient
devoir recommander aux deux Gouvernements de se concerter
en vue d'iuterdire toute destruction de phoques k fourrure,
tant sur terre que sur mer, pendant une p^riode de deux ou
trois ans, ou d'une ann^e au moins, sauf telles exceptions que
les deux Gouvernements pourraient trouver k propos d'ad-
mettre.
. " Si cette mesure donnait de bons r^sultats, elle pourrait
^tre appliqu^e de nouveau, k certains intervalles, suivant les
circonstances.
"III.
"Les Arbitres d(5clBrent en outre que, dans leur pens^e,
Fex^cution des reglements Etablis par le Tribunal d' Arbitrage
devra etre assuree par un ensemble de stipulations et de
mesures qu'il appartiendra aux deux Puissances d'arreter, et
Digitized by LjOOQIC
956 INTERNATIONAL ARBITRATIONS.
que le Tribunal doit s'en remettre en consequence k ces deux
Puissances pour rendre efiectifs les r^glements ^tablis pax lai.
<«Fait et sign^ a Paris, le 15 aoiit 1893.
"Alph. De Courcel.
"John M. Harlan.
"John T. Morgan.
^^J^approuve les dSclaratians L et III.
"Hannen.
'^J^approuve les declarations I, et III.
"Jno S D Thompson.
"ViscoNTi Vbnosta.
"G. Gram.^
"[English veTBion.]
^^Declarations made by the Tribunal of Arbitration and Re/erred
to the Oovernments of tfie United States and Great Britain
for their consideration.
"I.
"The Arbitrators declare that the concurrent Regulations,
as determined upon by the Tribunal of Arbitration, by virtne
of article VII of the Trciity of the 29t»» of February 1892, beijig
applicable to the high sea only, should, in their opinion, be
supplemented by other Regulatiims applicable within the lim-
its of the sovereignty of eacth of the two Powers interested and
to be settled by their common agreement. •
"II.
"In view of the critical condition to which it appears cer-
tain that the race of fur-seals is now reduced in consequence
of circurmstances not fully known, the Arbitrators think fit to
recommend both Governments to come to an understanding
in order to prohibit any killing of fur-seals, either on land or
at sea, for a period of two or three years, or at least one year,
subject to such exceptions as the two Governments might
think proper to admit of.
"Such a measure might be recurred to at occasional inter-
vals if found beneficial.
"III.
"The Arbitrators declare moreover that, in their opinion, the
carrying out of the Regulations determined upon by the Tri-
bunal of Arbitration, should be assured by a system of stipu-
lations and measures to be enacted by the two Powers; and
that the Tribunal must, in consequence, leave it to the two
Powers to dei*>ide upon the means for giving eflect to the B/^-
ula<tions determined upon by it.
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FUR SEAL ARBITRATION. 957
"We do certify this English version to be trne and accurate
and have signed the same at Paris this 16'*' day of August
1893.
"Alph de Courcbl.
*MoHN M. Harlan.
"7 approve declarations J. and III.
" Hannen.
"J approve declarations I. and III.
"Jno S D Thompson.
"John T. Morgan.
"ViSCONTI Venosta.
"G. Gram.''
Tha Beinlt of the
Award.
On the various questions of right submitted
to the tribunal its decision was against the
United States; but to anyone who has read
the foregoing pages it must be evident that this result was not
due to any lack of ability or of effort on the part of the Ameri-
can agent and counsel. It must be equally evident that it was
due to certain historical and legal antecedents, among which
we may mention the following:
1. That when the first seizures were reported in 1880 the
Department of State not only possessed no information con-
cerning them, but was unable to give any explanation of them ;
and that when the circumstances of the seizures were ascer-
tained, even though the full judicial record had not then been
received, the vessels were ordered to be released.*
2. That the court in Alaska, in condemning the vessels and
punishing their masters and crews, proceeded on a doctrine of
mare clausumy which the United States had never asserted
and which the government afterwards disavowed.*
3. That the treaty ceding Alaska to the United States did
not purport to convey the waters of Behring Sea, but in terms
conveyed only "the territory and dominion" of Kussia "on the
continent of America and in the adjacent islands," and drew
a water boundary so as to effect a transfer of the islands, many
of them nameless, which lay in the intervening seas.^
4. That the ukase of 1821, which containexi the only dis-
tinctive claim of mare clausum ever put forward by Kussia,
did not assume to treat the whole of Behring Sea as a close
sea, but only to exclude foreign vessels from coming within one
' Supra, 772, 773.
^ Supra, 797.
^ Supra, 763.
Digitized by LjOOQIC
958 INTERNATIONAL ARBITRATIONS.
hundred Italian miles of the coast, from the fifty-first parallel
of north latitude to Behring Straits, without discrimination as
to localities.*
5. That against this ukase both the United States and Great
Britain protested; and that by the treaties of 1824 and 1825
Russia agreed not to interfere with their citizens or subjects
either in navigating or in fishing in "any part'' of the Pacific
Ocean, thus abandoning the exclusive jurisdictional claim an-
nounced in the ukase.'
6. That it was declared in the diplomatic corresi)ondence
that if the i)hra8e " Pacific Ocean," as used in those treaties,
included Behring Sea, the United States had" no well-grounded
complaint" against Great Britain^; and that it was unani-
mously found by the arbitrators that the phrase Pacific Ocean
did include Behring Sea.
7. That while the tribunal, by six voices to one, found that
there was no evidence to substantiate the supposition that
Eussia had asserted exceptional claims as to the fur seals, there
was afiirmative evidence that she had not done so in recent
years/
8. That it was admitted that no municipal law of the United
States had treated the species, individually or collectively, as
the subject of property an<i protection on the high seas.'
9. That it was also admitted by the representatives of the
United States that, for the claim of property and protection on
the high seas, there was no precise precedent in international
law, though it was strongly maintained that the claim was
justified by analogies.^
10. That the effort to support this claim was embarrassed by
its relation to the subject of visitation and search on the high
seas."^
The (luestion of regulations stood on different grounds. It
1 Supra, 756.
^ Supra, 760, 762.
» Supra, 796.
</Sui?ra, 823-826,914.
^ Supra, So7,
^ Supra, 844, 862, 918, 934.
* Supra, 812, 843, 845, 898, 902. "They [the neutral arbitrators] were eon-
fronted with a question novel in its facts and with a claim on the part of
the United States which to them seemed in conflict with the accepted doc-
trine of the freedom of the seas.'' (Final Report of the Agent of the United
States, 10.)
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FUR SEAL ARBITRATION. 959
had, as we have seen, been agreed that if the determination
should be against the United States on questions of exclusive
jurisdiction the tribunal should "then determine what concur-
rent regulations outside the jurisdictional limits of the respec-
tive governments are necessary, and over what waters such
regulations should extend.'' In regard to the regulations
adopted by the tribunal, the agent of the United States said:*
"The regulations as finally framed and promulgated are the
result of an honest and conscientious effort on the part of the
neutral arbitrators to do all they conceived jmssible and neces-
sary for the protection and preservation of the seal herd con-
sistent with their decision on the fifth point.^ These regulations
go further than the provisions which our government has pro-
posed in the past, but it is to be observed that later investiga-
tions have revealed i)erils to which the seals are exposed not
then known. It is to be hoped that the regulations when put
in operation will realize the best expectations of the tribunal.
Much depends on the manner in which they are enforced. It
is not to be doubted that both governments, in deference to
the expressed directions of the tribunal and to their own
obligations, will adopt all necessary legislation and rules to
give them full force and effect. If the recommendation made
by the tribunal for a complete cessation of taking seals both
on land and at sea for a few years be adopted, I shall look for
satisfactory results from the operation of the regulations.'"
By an act of February 21, 1893,* it was provided that when-
ever the Government of the United States should conclude an
effective international arrangement for the protection of the fur
seals in the north Pacific Ocean, by agreement with any other
power or as the result of the pending arbitration, the laws of the
United States for the protection of the fur seals' and other fur-
bearing animals within the limits of Alaska and in the waters
thereof should by a proclamation of the President be extended
over all that portion of the Pacific Ocean included in such in-
ternational arrangement. The result of the arbitration having
' Final Report of the Agent of the United States, Fur Seal Arbitration,
I. 11.
' Supra, 801.
3 The expenses of the United States in the arbitration amonnted to
$224,514.39. (H. Ex. Dor. 30(5, 53 Cong. 3 sess.) By an act of March 2,
1895, the Comptroller was directed to allow the di^biirRetuonts made by
the disbursing oflScers of the United States. (28 Stats, at L. 843.)
For a review of the arbitration by Mr. Foster, thi) ajreut of the United
states, see the North American Review for December, 1895 (CLXI.) 693.
'27 Stats, at L. 472.
Digitized by LjOOQIC
960 INTERNATIONAL AKBITRATIONS.
rendered this act inappropriate, an act was approved April G,
1894, for executing the regulations of the Paris tribunal, and
a similar act was passed in Great Britain J l^o agreement for
the temporary suspension of sealing was eflfected.
The damages claimed by Great Britain as
Damans. growing out of the controversy amounted to
$542,109.20, without interest, which was de-
manded at the rate of 7 per cent. On August 21, 1894, Mr.
Gresham, Secretary of State, oft'ered, as the result of a some-
what extended negotiation, the sum of $425,000 in full and
final settlement of all claims, "subject to the action of Con.
gress on the question of appropriating the money." "The
President," said Mr. Gresham, "can only undertake to submit
the matter to Congress at the beginning of its session in De-
cember next, with a recommendation that the money be appro
priated and made immediately available for the purpose above
expressed, and if at any time before the appro])riation is made
your [the British] government shall desire, it is understood
that the negotiations on which we have for some time been
engaged for the establishment of a mixed commission will be
renewed." The offer was accepted by Sir Julian Pauncefote
on these terms.^ At the ensuing session Congress did not
appropriate the money, and the negotiations for a mixed com-
mission were renewed.
On February 8, 1896, a convention was concluded at Wash-
ington by Mr. Olney, Secretary of State, and Sir Julian
Pauncefote for the appointment of two commissioners, one by
the United States and the other by Great Britain, to meet and
sit at Victoria, and also, if either commissioner should formally
so request, to sit at San Francisco for the purpose of deter-
mining the claims for damages. The convention includes by
designation the cases of the Wanderer (1887-1889), Winifred
(1891), Henrietta (1892), and Oscar and Hattie (1892), in addi-.
tion to the cases mentioned in the findings of fact of the Paris
tribunal.
Any cases in which the commissioners may be unable to agree
are to be referred to sin umpire to be appointed by the two
governments, or, if they disagree, by the President of Swit-
zerland.
>28 Stats, at L. 52; S. Ex. Doc. 67, 53 Cou^^ 3 sess ; For. Rel. 18»4,
App. 1, pp. 107-233.
•^H. Ex. Doc. 132, 5: J t.'oug. 3 »es8.
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FUR SEAL ARBITRATION. 961
The commissioners under this convention have been duly
appointed, the commissioner on the part of the United States
being the Hon. William L. Putnam, a judge of the United States
Circuit Court of Appeals, and on the part of Great Britain the
Hon. George Edwin King, a judge of the Supreme Court of the
Dominion of Canada. Various sessions have been held.
Counsel before the commission are: On the part of the United
States, the Hon. Don M. Dickinson, senior counsel; Messrs.
Eobert Lansing, junior counsel, and Charles B. Warren, asso-
ciate counsel; on the part of Great Britain, Messrs. Frederic
Peters, Q. C, senior counsel; Frederic L. Beique, Q. C, asso-
ciate counsel; Ernest Y. Bod well, junior counsel and agent,
and Sir Charles Tupper, Q. C, associate counsel. The secre-
tary of the commission is Mr. Chandler P. Anderson, of New
York City. The clerks to the commission are Messrs. Eeuel
Small, Thomas E. B. Mclnnes, J. C. Clay, and Thomas P.
Owens.^
' It is proper to state that the form "Behring" instead of "Bering," in
referring to the sea of that name, has been employed in this chapter merely
for the sake of uniformity, the form *'Behring" having been used in many
official and historical documents which the present writer deemed it to be
his duty to quote without any alteration whatever.
5627 61
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CHAPTER XVIIL
QUESTION OF A PERMANENT TREATY OF ARBI-
TRATION BETWEEN THE UNITED STATES A^D
GREAT BRITAIN.
The present volume, in which a history is given of the arbi-
trations between the United States and Great Britain, may
fitly be closed by a review of the recent negotiations between
the two countries for a general and permanent treaty of arbi-
tration.
The Senate of the United States on February 14, 1890, and
the House of Representatives on April 3, 1890, adopted the
following concurrent resolution:
^^ Resolved by the JSenate (the House of Representatives concur-
ring)j That the President be and is hereby requested to invite
from time to time, as lit occasions may arise, negotiations with
any government with which the United States has or may
have diplomatic relations, to the end that any differences or
disputes arising between the two governments which cannot
be adjusted by diplomatic agency may be referred to arbitra-
tion, and be peaceably adjusted by such means.''
The British House of Commons on July 16, 1893, adopted the
f(rflowing resolution :
" Resolved, That this House has learnt with satisfaction that
both Houses of the United States Congress have, by resolu-
tion, requested the President to invite from time to time, as fit
occasions may arise, negotiations with any government with
which the United States have or may have diplomatic relations,
to the end that any differences or disputes arising between
the two governments which cannot be adjusted by diplomatic
agency may be referred to arbitration and peaceably adjusted
by such means; and that this House, cordially sympathizing
with the purpose in view, expresses the hope that Her Maj-
esty's Government will lend their ready cooperation to the Gov-
962
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QUESTION OF A PERMANENT TREATY. 963
ernment of the United States upon the basis of the foregoing
resolution." *
As the result of these expressions of opinion, commnnicar
tions were exchanged between the two governments in regard
to the conclusion of a permanent treaty of arbitration, the
negotiations being at first conducted by Mr. Gresham, Sec-
retary of State of the United States, and Sir Julian Paunce-
fote, British ambassador at Washington. From the spring of
1895 till March 1896, however, the consideration of the sub-
ject was suspended; but on the 5th of that month Lord Salis-
bury, referring to the prior negotiations, addressed to Sir
Julian Pauncefote an instruction in which the discussion was
renewed. The correspondence which then ensued resulted in
the conclusion on January 11, 1897, of a treaty. The follow-
ing documents, beginning with Lord Salisbury's instruction of
March 6, 1896, exhibit the history of the subject:
Lord Salisbury to Sir Julian Pauncefote.
No. 66.] Foreign Office, March 5, 1896.
Sir: In the spring of last year communications were ex-
changed between Your Excellency and the late Mr. Gresham
ux)on the establishment of a system of international arbitration
for the adjustment of disputes between the two Governments.
Circumstances, to which it is unnecessary to refer, prevented
the further consideration of the question at that time.
But it has again been brought into prominence by the con-
troversy which has arisen upon the Venezuelan boundary.
Without touching upon the matters raised by that dispute, it
appears to me that the occasion is favorable for renewing
the general discussion upon a subject in which both nations
feel a strong interest, without having been able up to this time
to arrive at a common ground of agreement. The obstacle
which has, separated them has been the difficulty of deciding
how far the undertaking to refer all matters in dispute is to
be carried. On botb sides it is admitted that some exceptions
must be made. Neither (iovernment is willing to accept arbi-
tration upon issues in which the national honor or integrity is
'Blue Book, "United States, No. 12 (1893)." President Cleveland re-
ferred to this resolution of the House of Commons in his annual message
to Congress of December 4, 1893, saying : "It affords me signal pleasure to
lay this parliamentary resolution before the Congress, and to express my
sincere gratification that the sentiment of two great and kindred nations
is thus authoritalively manifested in favor of the rational and peaceable
settlement of international quarrels by honorable resort to arbitration/'
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964 ' INTERNATIONAL ARBITRATIONS.
involved. But in the wide region that lies within this bound-
ary the United States desire to go further than Great Britain.
For the view entertained by Her Majesty's Government there
is this consideration to be pleaded, that a system of arbitration
is an entirely novel arrangement, and, therefore, the conditions
under which it should be adopted are not likely to be ascer-
tained antecedently. The limits ultimately adopted must be
determined by experiment. In the interests of the idea and
of the pacific results which are expected from it, it would be
wise to commence with a modest beginning, and not to hazard
the success of the principle by adventuring it upon doubtful
ground. The suggestion in the heads of treaty which I have
inclosed to Your Excellency will give an opportunity for ob-
serving more closely the working of the machinery, leaving it
entirely open to the contracting parties, upon favorable expe-
rience, to extend its application further, and to bring under its
action controversies to which for the present it can only be
applied in a tentative manner and to a limited extent.
Cases that arise between states belong to one of two classes.
They may be private disputes in respect to which the state is
representing its own subjects as individuals; or they may be
issues which concern the state itself considered as a whole. A
claim for an indemnity or for damages belongs generally to the
fir^t class; a claim to territory or sovereign rights belongs to
the second. For the first class of differences the suitability of
international arbitration may be admitted without reserve. It
is exactly analogous to private arbitration, and there is no
objection to the one that would not apply equally to the other.
There is nothing in case»s of this class which would make it
difficult to find capable and impartial arbitrators. But the
other class of disputes stands on a different footing. They
concern the state in its collective capacity, and all the mem-
bers of each state and all other states who wish it well are
interested in the issue of the litigation. If the matter in con-
troversy is important, so that defeat is a serious blow to the
credit or the power of the litigant who is worsted, that inter-
est becomes a more or less keen partisanship. According to
their sympathies, men wish for the victory of one side or
another.
Such conflicting sympathies interfere most formidably with
the choice of an impartial arbitrator. It would be too invidious
to specify the various forms of bias by which, in any important
controversy between two great powers, the other members of
the commonwealth of nations are visibly affected. In the
existing condition of international sentiment, each great power
could point to nations whose admission to any jury by whom
its interests were to be tried, it would be bound to challenge;
and in a litigation between two great powers the rival chal-
lenges would pretty well exhaust the catalogue of the nations
from whom competent and suitable arbiters could be drawn.
It would be easy, but scarcely decorous, to illustrate this 8tat«-
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QUESTION OP A PERMANENT TREATY. 965
ment by examples. They will occur to anyone's mind who
attempts to construct a panel of nations, capable of providing
competent arbitrators, and will consider how many of them
would command equal confidence from any two litigating
powers.
This is the difficulty which stands in the way of unrestricted
arbitration. By whatever plan the tribunal is selected, the end
of it must be that issues in which the litigant states are most
deeply interested will be decided by the vote of one man, and
that man a foreigner. He has no jury to find his facts ; he has
no court of appeal to correct his law ; and he is sure to be cred-
ited, justly or not, with a leaning to one litigant or the other.
!N^ations can not afford to run such a risk in deciding contro-
versies by which their national position may be affected or a
number of their fellow- subjects transferred to a foreign rule.
The plan which is suggested in the appended draft treaty
would give a court of appeal from the single voice of the for-
eign judge. It wouldnotbe competent for it to alter or reverse
the umpire's decision, but, if his judgment were not confirmed
by the stipulated majority, it would not stand. The court
would possess the highest guaranty for impartiality which a
court belonging to the two litigating nations could possess.
Its operation in arresting a faultyor doubtful judgment would
make it possible to refer great issues to arbitration without the
risk of a disastrous miscarriage of justice.
I am aware that to the warmer advocates of arbitration this
plan will seem unsatisfying and im]>erfect. But I believe that
it offers an opportunity of making a substantial advance, which
a more ambitious arrangement would be unable to secure; and
if, under its operation, experience should teach us that our
apprehensions as to the danger of reposing an unlimited con-
fidence in this kind of tribunal are unfounded, it will be easy,
by dropping precautions that will have become unnecessary,
to accept and establish the idea of arbitration in its most devel-
oped form.
I beg that you will read this despatch and the appended draft
treaty to the Secretary of State and leave him a copy if he
desires it.
[Enclosure.]
HEADS OF A TREATY FOR ARBITRATION IN CERTAIN CASES.
1. Her Britannic Majesty and the President of the United States shall
each appoint two or more permanent judicial officers for the purposes of
this treaty ; and on the appearance of any diiference between the two
Powers, which, in the judgment of cither of them, can not be settled by
negotiation, each of them shall designate one of the said officers as arbi-
trator; and the two arbitrators shall hear and determine any matter
referred to them in accordance with this treaty.
2. Before entering on such arbitration, the arbitrators shall select an
umpire, by whom any question upon which they disagree, whether inter-
locutory or iinal; shall be decided. The decision of such umpire upon any
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966 INTERNATIONAL ARBITRATIONS.
interlocutory question shall be binding upon the arbitrators. The deter-
mination uf the arbitrators, or, if they disagree, the decision of the umpire,
shall be the award upon the matters referred.
3. Complaints made by the nationals of one Power against the officers
of the other; all pecuniary claims or groai>8 of claims, amounting to not
more than £ 100,000, made on either Power by the uatiouals of the other,
whether based on an alleged right by treaty or agreement or otherwise;
all claims for damages or iudemuicy under the said amount; all (\ues-
tions affecting dipioinatic or consular privileges; all alleged rights of
fishery, access, navigation, or commercial privilege, and all questions
referred by special agreement between the two parties, shall be referred
to arbitration in accordance with this treaty, and the award thereon shall
be final.
4. Any difference in respect to a question of fact, or of international law,
involving the territory, territorial rights, sovereignty, or jurisdiction of
either Power, or any pi^cuniary claim or group of claims of any kind, in-
volving a sum larger thau XlOOjO'X), shall be referred to arbitration under
this treaty. But if in any such case, within three months after the award
has been reported, either Power protests that such award is erroneous in
respect to some issue of fact, or some issue of international law, the award
shall be reviewed by a court composed of three of the judges of the
Supreme Court of Great Britain and three of the judges of the Supreme
Court of the United States; and if the said court shall determine, after
hearing the case, by a majority of not less than five to one, that the said
issue has been rightly determined, the award shall stand and be final ; bat
in default of such determination it shall not bo valid. If no protest is
entered by cither Power against the award within the time limited, it shall
be final.
5. Any difference which, in the judgment of either Power, materially
affects its honor or the integrity of its territory, shall not be referred to
arbitration under this treaty except by special agreement.
6. Any difference whatever, by agreement between the two Powers, may
be referred for decision by arbitration, as herein provided, with the sti])u>
latiou that, unless accepted by both Powers, the decision shall not be valid.
The time and place of their meeting, and all arrangements for the hear-
ing, and all questious of procedure, shall be decided oy the arbitrators or
by the umpire, if need be.
Mr. Olney to ^ir Julian Pauncefote.
No. 305.] Department of State,
Wcishingtony April lly 1896.
Excellency : I have the honor to acknowledge the receipt,
at your hands, of the copy of Lord Salisbury's despatch of
March 5, 1896. His Lordship, after recurring to the negotia-
tions of last year between himself and the late Secretary
Gresham for the establishment of a general system of arbitra-
tion of disputes between the two Governments, and after in
terms excluding from consideration the Venezuelan boundary
dispute, expresses the opinion that the time is favorable for
renewing discussion upon the subject. He thereupon proceeds
to make a most interesting contribution to such discussion,
which he concludes by submitting the draft of a proposed
treaty, a coi)y of which, for convenience of reference, is annexed
to this communication.
It is proper to state at the outset that these proposals of
Her Majesty's Prime Minister are welcomed by the President
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QUESTION OP A PERMANENT TREATY. 967
with the keenest appreciation of their value and of the enlight-
ened and progressive spirit which animates them. So far as
they manifest a desire that the two great English-speaking
peoples of the world shall remain in perpetual peace, he fully
reciprocates that desire on behalf of the Government and peo-
ple of the United States. To himself personally nothing could
bring greater satisfaction than to be instrumental in the
accomplishment of an end so beneficent.
If Lord Salisbury's draft had stopped with article 3, no crit-
icism could have been made either of the arbitral machinery
provided or of the arbitral subjects enumerated, except that
the latter seem to be so cautiously restricted as hardly to cover
other than controversies which, as between civilized states,
could almost never endanger their peaceful relations. But
article 3, as well as article 4, is apparently qualified by the
provisions of article 6, since the national honor may sometimes
be involved even in a claim for indemnity to an individual.
Further, the arbitral machinery provided by article 4 is open
to serious objection as not securing an end of the controversy
unless an award is concurred in by at least five out of the six
appellate arbiters. In calling attention to these features of
th^ scheme as largely restricting its value, I am directed by
the President to propose as a substitute for articles 4 and 6 the
following:
IV. Arbitration under this treaty shall also be obligatory in respect of
all questions now pending or hereafter arising, iuvolving territorial rights,
boundaries, sovereignty, or jurisdiction, or any pecuniary claim or group
of claims aggregating a sum larger than £100,000, and in respect of all
controversies not in this treaty specially described : Provided, however, that
either the Congress of the United States, on the one hand, or the Parlia-
ment of Great Britain, on the other, at any time before the arbitral tribu-
nal shall have convened for the consideration of any particular subject-
matter, may by act or resolution declaring such particular subject-matter
to involve the national honor or integrity, withdraw the same from the
operation of this treaty: And provided, further, that if a controversy shaU
arise when either the Congress of the United States or the Parliament of
Great Britain shall not be in session, and such controversy shall be deemed
by Her Britannic Majesty's Government or by that of the United States,
acting through the President, to be of such nature that the international
honor or integrity may be involved, such difference or controversy shall
not be submitted to arbitration under this treaty until the Congress and
the Parliament shall have had opportunity to take action thereon.
In the case of controversies provided for by this article, the award shall
be final if concurred in by all the arbitrators. If assented to by a majority
only, the award shall be tinal unless one of the parties, within three
months from its promulgation, shall protest in writing to the other that
the award is erroneous in respect of some issue of fact or of law. In
every such case, the award shall be reviewed by a court composed of three
of the judges of the Supreme Court of Great Britain and three of the judges
of the Supreme Court of the United States, who, before entering upon
their duties, shall agree upon three learned and impartial jurists to be
added to said court in case they shall be equally divided upon the award
to be made. To said court there shall be submitted a record in full of all
the proceedings of the original arbitral tribunal, which record, as part
thereof, shall include the evidence adduced to such tribunal. Thereupon
the said court shall proceed to consider said award iipon said record, and
may either affirm the same or make such other award as the principles of
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968 INTERNATIONAL ARBITBATION&
law applicable to the facts api>earing by said record shall wairaiit and
require; and the award so affinued or so rendered by said court, whether
nnanimously or by a majority vote, shall be final. If, however, the coort
shall be equally divided upon the subject of the award to be made, the
three jurists agreed upon as hereinbefore provided shall be added to the
said court ; and the award of the court so constituted, whether rendered
nnanimously or by a majority vote, shall be final.
The considerations which, in the opinion of the President,
render the foregoing amendments of Lord Salisbury's scheme
most desirable and perhaps indispensable may be briefly stated.
1. The scheme, as thus amended, makes all disputes prima
facie arbitrable.
Each, as it may arise, will go before the arbitral tribunal
unless affirmative action by the Congress or by the Parliament
displaces the jurisdiction.
2. The scheme, as amended, puts where they belong the
right and power to decide whether an international claim is of
such nature and importance as not to be arbitrable, and as to
demand assertion, if need be, by force of arms.
The Administration in authority when a serious interna-
tional controversy arises must, in the nature of things, be
often exposed to influences not wholly favorable to an impar-
tial consideration of the nature of that controversy.
It may always be more or less controlled by personal predi-
lections and prejudices inherent in the controversy or arising
in its progress, while considerations connected with party
success or failure are factors not likely to be wholly eliminated
m determining upon a particular course of action.
It is liable to decide in haste — to view the honor of the
country as not distinguishable from the good of its partj'^— and
to act without the advantage of a full discussion of the sub-
ject in all its aspects by party opponents as well as by party
friends.
On the other hand, if the issue between war and arbitration
be left to the supreme legislative tribunal of the country^to
Congress on the one hand or Parliament on the other — there
will be ample time for deliberation and for full investigation
and debate of the subject in all its bearings, while it is in the
face of such an issue and of all its responsibilities that mere
party interests are most likely to be subordinated to those of
the country at large.
A more conclusive consideration in this connection, however,
remains to be stated. It is that, if war and not arbitration is
to be evoked in settlement of an international controversy, the
direct representatives of the people, at whose cost and sufler-
ing the war must be carried on, should properly be charged
with the responsibility of making it.
3. The scheme, as amended, changes the arbitration ma-
chinery provided by article 4 of Lord Salisbury's draft in
important particulars.
In the first place, the award of the original tribunal of arbi-
tration, if the arbiters are unanimous, is to be final, and the
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QUESTION OF A PERMANENT TREATY. 969
appellate tribunal is to give its decision in view of the record
and proceedings (including any evidence adduced) of such
original tribunal. It is hardly consistent with any reasonable
theory of arbitration that an award concurred in by the arbiter
of the defeated country should be appealable by that country.
It is obvious, too, that the parties may properly be required to
present all their facts and evidence to the original tribunal.
Otherwise, and if the award is appealable in any event, the
original tribunal might as well be disi)ensed with, since each
party will be sure to make its real contest before the appellate
tribunal alone.
In the second place, by the scheme as amended an award is
the result of each arbitration, so that the controversy is finally
ended. Under the draft as proposed, on the other hand, there
will be an award only in the rare cases in which the six appel-
late arbiters favor it either unanimously or by a majority of
five to one. Such an arrangement, it is believed, would be
dangerous and rather mischievous than salutary in its opera-
tion. In all the cases in which the arbitrators were equally
divided, or stood four to two, public feeling in each country
would have been aroused by the protnicted discussions and
proceedings, and the chances of a peaceful outcome would be
rather prejudiced than promoted. That would be the almost
certain result in cases in which the arbiters stood four to two,
and in which one judge of the highest court of his country
had found himself compelled to give his vote in favor of the
other country.
It is a possibility to be noted that the party defeated and
disappointed by the award of the original tribunal, in a case
where the stake is large and the public feeling intense, might
find itself under irresistible temptation to make all subsequent
proceedings purely farcical by making sure, before their selec-
tion, of the sentiments of two at least of the appellate arbiters.
It is submitted that precaution becomes excessive when the
entire arbitration proceedings are made abortive unless the
tribunal of six judges reaches an award by a majority of at
least five to one. If they stand four to two — which means
that at least one judge of the highest court of his country
believes that country's claim to be ill founded — it is hardly
reasonable to insist that the result should not be accepted and
made effective.
It is believed, also, that there can be no arbitration, in the
true sense, without a final award, and that it may be better to
leave controversies to the usual modes of settlement than to
enter upon proceedings which are arbitral only in name and
which are likely to have no other result than to excite and
exas])erate public feeling in both countries.
It is objected by Lord Salisbury that to insist upon the final-
ity of an award upon the controversies described in article 4
is to enable a single foreign jurist to decide matters of great
international consequence.
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970 INTERNATIONAL ARBITRATION.
But, under article 4 as amended, the members added to the
ai)pellate tribunal need not be foreigners, and, if foreigners and
they control the result, it must be by the votes of at least two
of them.
It may be pointed out, too, that if bias on the part of foreign
jurists is feared, the United States, being without alliances
with any of the countries of Europe, is certainly not the party
to exi)ect any advantage from that source. Great Britain
could at least not fail to know in what quarters friendliness
or unfriendliness might be looked for.
It is believed that the risks anticii)ated from the powers
given to a foreign jurist as arbiter or umpire under article 4
as amended, if not purely imaginary, may be easily exagger-
ated. Before the foreign juiist could act, the questions in
dispute would have been thoroughly canvassed and decided,
once at least, and perhaps twice; so that the risks in question
may fairly be regarded as reduced to a minimum.
Finally, to insist upon an arbitration scheme so constructed
that miscarriages of justice can never occur is to insist upon
the unattainable, and is equivalent to a relinquisbment alto-
gether of the eflfbrt in behalf of a general system of international
arbitration. An approximation to truth — results which, on
the average and in the long run, conform to right and justice —
is all that the 'Uot of humanity" permits us to expect from
any plan. Not to surround an arbitration plan with all rea-
sonably practicable safeguards against failures of justice would
undoubtedly be the height of unwisdom. But beyond that,
human skill and intelligence are without avail, while for actual
results dependence must be placed upon the patient hearing
and deliberate decision of a tribunal whose proceedings will
attract the close attention and careful scrutiny of the civilized
world. It may be conceded that a general arbitration scheme
not perfected through repeated arbitration experiments entails
the risks of erroneous awards. But in this, as in human affairs
generally, there is but a choice between evils, and the non-
existence of any arbitration scheme entails the far greater
risks of controversies which should be arbitrated being settled
by the sword. It would seem to be the part of wisdom, there-
fore, to establish the principle of general arbitration even at
the risk of the development of defects in the scheme originally
adopted. The affirmation of the principle would of itself tend
to greatly diminish the chances of a resort to war; while the
imperfections of the scheme as disclosed by its actual working
would be remediable at any time by the consent of the parties.
That they would be so remedied, in fact, it is difficult not to
believe, since a principle of such great value being once estab-
lished, it is wholly unlikely that both parties would not desire
to perpetuate its operation, and would not therefore be prepared
to consent to reasonable clianges in the necessary machinery.
It would tend to insure such consent if the treaty were made
terminable after a short term of years on notice by either party.
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QUESTION OF A PERMANENT TREATY. 971
It only remains to observe that if article 4, as amended,
should prove actteptable, no reason is perceived why the pend-
ing Venezuelan boundary dispute should not be brought within
the treaty by express words of inclusion. If, however, no
treaty for general arbitration can be now expected, it can not
be improper to add that the Venezuelan boundary dispute
seems to ofler a good opportunity for one of those tentative
experiments at arbitration which, as Lord Salisbury justly
intimates, would be of decided advantage as tending to indi-
cate the lines upon which a scheme for general arbitration can
be judiciously drawn.
Begging that this communication — copy of which is enclosed
for that purpose — may be brought to Lord Salisbury's atten-
tion at your earliest convenience, I avail myself of this oppor-
tunity to renew to Your Excellency the assurances of my
highest consideration.
liicHARD Olney.
Lord Salisbury to Sir Julian Pauncefote.
No. 128.] Foreign Office, May 18, 1896.
Sir: I have to acknowledge Your Excellency's despatch of
the 13th ultimo, inclosing a note from Mr. Olney in reply to
the pro])Osals made by Her Majesty's Government for a general
treaty of arbitration.
Her Majesty's advisers have received Mr. Olney's despatch
with great satisfaction, in that it testifies clearly to the earnest
desire which animates the (jovernment of the United States to
make efl'ective provision for removing all diflferences of opinion
which can arise between tho two nations. They regret that in
some essential particulars the opinions of the two Governments
do not as yet seem to be sufficiently in accord to enable them
to come to a definitive agreement upon the whole of this impor-
tant subject. It appears to them, however, that there are some
considerations bearing upon this matter to which the attention
of the Government of the United States should be more par-
ticularly invited before the attempt to arrive at a general
understanding ought to be laid aside.
1 would say, in the first place, that Mr. Olney somewhat
mistakes my meaning when he says that, in raising this ques-
tion, I "in terms excluded the consideration of the Venezuelan
boundary dispute.'' I wished to state our views upon the ques-
tion of general arbitration without touching upon certain points
in relation to which the two questions do not cover the same
field. But I was well aware that any settlement to which we
might arrive must, in its general principles, be applicable to
disputes, not only between Great Britain and the United
States, but between either of them and any other government;
and, therefore, with certain adaptations of detail, it would
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972 INTERNATIONAL ARBITRATION.
apply to a dispute between Great Britain and Venezuela. In
this view, I am glad to observe that I am at one with ]VIr.
Olney, because 1 hold that, in discussing the safeguards by
which a general system of arbitration should be sanctioned, it
is important to bear in mind that any system adopted between
our two nations ought to be such as can in principle be applied,
if necessary, to their relations with other civilized countries.
Mr. Olney is satisfied with the ])rovisions of Article III. of
my proposals and the plan of arbitration which it contains.'
The only fault he finds with them is that they are too limited
in their application. He thinks that they '^ hardly cover other
' than controversies which as between civilized states could
almost never endanger their peaceful relations.^' It is possible
that the language of the article may be modified with advan-
tage. It certainly was not intended to apply only to contro-
versies of a practically unimportant character. The discus-
sions which arise out of disputed claims to teiTitory, which are
dealt with in Article IV., are, or may be, much graver, as well
as much more difficult to decide. But it would not, I think, be
difficult to show by a consideration of the history of the pres-
ent century that controversies which have issued in warlike
action, have not arisen exclusively or even mainly from dis-
puted questions of territorial ownership.
To examine the individual instances would involve a some-
what lengthy investigation, which is not necessary now. It is
more material on the present occasion to dwell upon the encour-
aging fact that Her Majesty's Government and the Government
of the United States are entirely agreed in approving the lan-
guage of article No. 3 and the policy it is designed to sanction.
Under these circumstances it ap})ears to me to be a matter for
regret that the two Governments should now neglect the oppor-
tunity of embodying their common view, so far as it is ascer-
tained, in a separate convention. To do so would not be to
prejudice in the slightest degree the chance of coming to an
agreement on the more difficult portion of the subject which
concerns territorial claims. The first step would not prevent
the ulterior steps being taken; it would rather lead to them.
With respect to the mode of dealing with territorial claims,
the views of the two Governments are still apart. The United
States Government wish that every claim to territory preferred
by one neighbor against another shall go, as of right, before a
tribunal, or tribunals, of arbitration, save in certain special
' Article III. runs as follows: "III. Complaints made by the oationals
of one Power against the officers of the other; all pecuniary claims, or
groups of claims, amounting to not more than £100,000, made on either
Power by the nationals of the other, whether based on an alleged right by
treaty or agreement or otherwise; all claims for damages or indemnities
under the said amount ; all questions affecting diplomatic or consular priv -
ileges; all alleged rights of fishery, access, navigation, or commercial
privilege; and all questions referred by special agreement between the
two parties shall be referred to arbitration in accordance with this treaty ;
and the award thereon shall be final.''
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QUESTION OF A PERMANENT TREATY. 973
cases of an exceptional character, which are to be solemnly
declared by the legislature of either country to involve the
^< national honor or integrity;" and that any dispute once
referred under the treaty to arbitration shall be decided finally
and irrevocably, without the reservationof any further powers
to either party to interfere. Her Majesty's Government are
not prepared for this complete surrender of their freedom of
action until fuller experience has been acquired. In their view,
obligatory arbitration on territorial claims is, in more than one
respect, an untried plan, of which the working is consequently
a matter of conjecture. In the first place, the number of claims
which would be advanced under such a rule is entirely unknown.
Arbitration in this matter has as yet never been obligatory.
Claims by one neighbor to a portion of the land of the other
have hitherto been limited by the difficulty of enforcing them.
Hitherto, if pressed to the end, they have meant war. Under
the proposed system, self-defense by war will, in these cases,
be renounced, unless the claim can be said to involve "the
national honor and integrity." The protection, therefore, which
at present exists against speculative claims will be withdrawn.
Such claims may, of course, be rejected by the arbiter; if they
are, no great harm is done to the claiming party. In the field
of private right, excessive litigation is prevented by the judg-
ment for costs against the losing party; but to a national
exchequer, the cost of an arbitration will be too small to be an
effective deterrent. Whenever the result is, from any cause, a
fair matter of speculation, it may be worth the while of an
enterprising government to hazard the experiment. The first
result, therefore, of compulsory arbitration on territorial claims
will, not improbably, be an enormous multiplication of their
number. Such litigation can hardly fail, from time to time, in
a miscarriage of justice; but there will be a far more serious
and certain evil resulting from it. Such litigation is generally
protracted; and while it lasts the future prospects of every
inhabitant of the disputed territory are darkened by the gravest
uncertainty upon one of the most important conditions that
can affect the life of a human being, namely, the character of
the government under which he is to live. Whatever the
benefits of arbitration may be in preventing war from arising
out of territorial disputes, they may well be outweighed if the
system should tend to generate a multiplicity of international
litigation, blighting the prosperity of the border country ex-
posed to it, and leaving its inhabitants to lie under the endur-
ing threat either of a forcible change of allegiance or of exile.
The enforcement of arbitration in respect to territorial rights
is also an untried project in regard to the provisions of the in-
ternational law by which they are to be ascertained. This is
in a most rudimentary condition; and its unformed and uncer-
tain character will aggravate the other dangers on which I
have dwelt in a previous despatch — the danger arising from
the doubts which may attach to the impartiality and the com-
petence of the arbitrators.
Digitized by LjOOQIC
974 INTERNATIONAL ARBITRATION.
There are essential difforeuces between individual and na-
tional rights to land, which make it almost impossible to apply
the well-known laws of real property to a territorial dispute.
Whatever the primary oripn of his rights, the national
owner, like the individual owner, relies usually on effective
control by himself or through his predecessor in title for a
sufficient length of time. But in the case of a nation, what is
a sufficient length of time, and in what does effective control
consist? In the case of a private individual, the interval ade-
quate to make a valid title is defined by positive law. There is
no enactment or usage or accepted doctrine which lays down
the length of time required for international prescription ; and
no full definition of the degree of control which will confer ter-
ritorial property on a nation has been attempted. It certainly
does not depend solely on occupation or the exercise of any
clearly defined acts. All the great nations in both hemispheres
claim, and are prepared to defend, their right to vast tracts of
territory which they have in no sense occupied, and often have
not fully explored. The modern doctrine of <' Hinterland,"
with its inevitable contradictions, indicates the unformed and
unstable condition of international law as applied to territorial
claims resting on constructive occupation or control.
These considerations add to the uncertainty as to any general
plan of arbitration in territorial disputes. The projected pro-
cedure for this purpose will be full of surprises; the nature of
the tribunal, its ability and freedom from bias, may be open to
much question ; the law which it is to administer has yet to
be constructed. Even if the number of such disputes is not
much larger than those of which we have had experience in
modern times, the a])plication of so trenchant and uncertain
an instrument to controversies in which the dearest interests
and feelings of multitudes of men may be engaged can not be
contemplated without some misgiving. But if, as seems most
probable, the facility of the procedure should generate a
vastly augmented number of litigants desirous of rectifying
their frontiers to their own advantage, the danger inherent in
the proposed change may be formidable.
It appears to me that under these circumstances it will
be wiser, until our experience of international arbitration is
greater, tor nations to retain in their own hands some control
over the ultimate result of any claim that may be advanced
against their territorial rights. I have suggested arrangements
under which their interests might be indirectly protected, by
conferring on the defeated litigants an appeal to a court in
which the award would need confirmation by a majority of
judges belonging to their nationality. I do not insist on this
special form of protection. It would be equally satisfactory
and more simple to ])rovide that no award on a question of ter-
ritorial right should stand if, within three months of its deliv-
ery, either party should formally protest against its validity.
The moral presumption against any nation delivering such a
Digitized by LjOOQIC
QUESTION OP A PERMANENT TREATY. 975
protest would, in the opinion of the world, be so strong that
no government would resort to such a defense unless under a
cogent apprehension that a miscarriage of justice was likely to
take place.
Mr. Olney himself appears to admit the need of some security
of the kind ; only he would restrict the liberty of refusal to the
period immediately preceding the arbitration. I do not in any
degree underrate the value of his proposal, although, if it were
adopted, it would require to be modified in its application to
Great Britain in order to suit our special constitutional usages.
But it would not meet the case of errors committed, from any
cause, by the tribunal, which, in the case of a claim to inhabited
territory, might have such serious results to large bodies oi
mei}.
I apprehend that if Mr. Olney's proposal were adopted as it
stands, the fear of a possible miscarriage of justice would in-
duce the government whose territory was claimed to avoid
all risk by refusing the arbitration altogether, under the plea,
which he allows, that it involved their honor and integrity.
The knowledge, on the other hand, that there still remained
an escape from any decision that was manifestly unjust would
make parties willing to go forward with the arbitration who
would shrink from it behind this plea if they felt that, by en-
tering on the proceeding, they had surrendered all possibility
of self-protection, whatever injustice might be threatened by
the award.
I have no doubt that if the procedure adopted were found in
experience to work with tolerable fairness, the rejection of the
award would come gradually to be looked upon as a proceeding
so dangerous and so unreasonable that the right of resorting
to such a mode of self-protection in territorial cases would
become practically obsolete, and might in due time be formally
renounced. But I do not believe that a hearty adoption and
practice of the system of arbitration in the case of territorial
demands can be looked for, unless the safety and practicability
of this mode of settlement are first ascertained by a cautious
and tentative advance.
I have to request that Your Excellency will read the sub-
stance of this despatch to Mr. Olney, and will leave a copy with
him if he should wish it.
Mr. Olney to Sir Julian Pauncefote.
No. 419.] Department of State,
Washington, June 12, 1896.
Excellency : I have the honor to acknowledge the receipt
from you of a copy of Lord Salisbury's despatch to you of the
18th ultimo, relating to a proposed general treaty of arbitration
between the United States and Great Britain. The contents
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976 INTERNATIONAL ARBITRATION.
have received the careful consideration of this GovemmeDt,
and I shall take the earliest practicable opportunity to sabmit
some observations upon the propositions the despatch sets
forth and discusses.
Meanwhile, however, I deem it advisable to recall attention
to the fact that, so far as the Venezuelan boundary dispute is
concerned, the position of this Government has been plainly
defined, not only by the Executive, but by the unanimous
concurring action of both branches of Congress. A genuine
arbitration issuing in an award and finally disposing of the
controversy, whether under a special or a general treaty of
arbitration, would be entirely consistent with that position and
will be cordially welcomed by this Government. On the other
hand, while a treaty of general arbitration providing for a
tentative decision merely upon territorial claims, though not
all that this Government deems desirable or feasible, might,
nevertheless, be accepted by it as a step in the right direction,
it would not, under the circumstances, feel at liberty to include
the Venezuelan boundary dispute within the scope of such a
treaty. It is deemed advisable to be thus explicit in the
interest of both Governments that the pending negotiations
for a general treaty of arbitration may proceed without any
misapprehension..
I have to request that you will communicate the contents of
this despatch to Lord Salisbury, furnishing him, should he so
desire, with a copy, which is herewith enclosed for that pur-
pose.
I have, etc.,
ElGHARD OlNET.
Mr. Olney to Sir Julian Pauncefote.
No. 425.] Department of State,
Washington^ June 22^ 1896.
Excellency: The despatch to you from Lord Salisbury of
the 18th ultimo, copy of which you have kindly placed in my
hands, has been read with great interest. While this Govern-
ment is unable to concur in all the reasoning or in all the
conclusions of the despatch, it is both impressed and gratified
at the earnest and serious attention which the important sub-
ject under discussion is evidently receiving. It can not refrain
from indulging the hope that persistent effort in the line of
the pending negotiations will have results which, if not all
that the enthusiastic advocates of international arbitration
anticipate, will be a decided advance upon anything heretofore
achieved in that direction.
This last despatch differs from the prior one of Lord Salis-
bury on the same subject in that, all general phraseology being
discarded, an entirely clear distinction is drawn between con-
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QUESTION OF A PERMANENT TREATY. 977
troversies that are arbitrable as of coarse and controversies
that are not so arbitrable. To the latter class are assigned
territorial claims, while to the former belong, apparently,
whether enumerated in Article III. or not, claims of every
other description. The intent to thus classify the possible
subjects of arbitration seems unmistakable. In the first place,
nonarbitrable subjects are expressly described as "territorial
claims,^' instead of as matters involving "territory, territorial
rights, sovereignty, or jurisdiction," the terms employed in
Article lY. In the second place, all the arguments adduced
against a treaty referring all differences to arbitration are
arguments founded on the peculiar nature of territorial claims.
The advantages of this sharp line of division between arbitra-
ble and nonarbitrable topics are very great, and the fact that
it is now drawn shows that the progress of the discussion is
eliminating all but the vital points of difference.
Lord Salisbury criticises an observation made in my despatch
of April 11 last to the effect that the subjects of arbitration
enumerated in Article III. are such as could almost never
endangerthepeacefulrelationsof civilized states. The remark,
however, seems to me well founded when considered in its true
connection — that is, when it is borne in mind that the subject
of present discussion is a general arbitration plan, not for the
world at large nor for any two countries whatever, but solely
for and as between Great Britain and the United States. As
between them, it still seems to me quite impossible that war
should grow out of such matters as those described in Article
III., whether a general arbitration treaty did or did not exist
between the two countries. Nor can I seriously doubt Lord
Salisbury's concurrence in this view — his apparent opinion to
the contrary being based, I think, on the supposed adoption
and operation of Article III. as the international law of civi-
lized states in general.
Lord Salisbury's practical suggestion in this connection is
that, as the two Governments " are entirely agreed in approv-
ing the language of Article No. III. and the policy it is designed
to sanction,'' those provisions may well be at once made effect-
ive by separate convention without waiting for an agreement
upon other and more difficult points. Before a reply can be
made to this suggestion, however, it becomes necessary to
ascertain whether, in the view of His Lordship, Article V. of
the proposals is to form part of such convention. If it is, any
present absolute accord of the two Governments as to Article
III. can hardly be predicated — the qualifying effect of Article
V. upon Article III. having been distinctly pointed out and a
substitute provision outlined in my note to you of April 11, 1896.
The remainder of Lord Salisbury's despatch is devoted to
territorial claims. The suggestion on behalf of the United
States being that such a claim shall he prima facie arbitrable,
and shall be arbitrated unless Congress or Parliament declare
it nonarbitrable, it is replied that this proposition involves a
6627 62
Digitized by LjOOQIC
978 nrrEBNATiONAL arbitration.
complete sarrender of freedom of action for which Her Majes-
ty's Government are not prepared. But each Government's
freedom of action prior to entry upon an arbitration remains
intact — the only change being that it is to be exercised through
the legislature of each country. Hence, by the freedom of
action that is surrendered must be meant the liberty to reject
an award after entering upon an arbitration. But it will not
be contended that a government should be permitted to fly
from an award after once undertaking to stand by it, so that,
as respects a territorial claim, His Lordship's real position is
that there shall be no genuine arbitration at all. There shall
be the usual forms and ceremonies, a so-called arbitral tribu-
nal, hearings, evidence, and arguments, but as the grand result,
instead of a binding adjudication, only an opinion without
legal force or sanction, unless accepted by the parties. Lord
Salisbury does^ indeed, propose that a protested award shall
stand, either ii approved by five out of six judges nominated
three by one party from the judges of its Supreme Court and
three by the other party from the judges of its Supreme Court,
or, if not disapproved, by a tribunal of five judges of the
Supreme Court of the protesting nation. But neither method
makes any change in the essential idea, which is, that a deci-
sion upon a territorial claim shall not operate as a binding award
unless the power aggrieved by it, acting through its political
department, or through both its political and judicial depart-
ments, shall either afiirm it or fail to disaffirm it. In Lord
Salisbury's judgment, action by the political department alone
is to be preferred as being '* equally satisfactory and more
simple." Now, it may not be wise to assert, though the obvi-
ous objections can not be ignored, that the experiment of sub-
jecting a territorial claim to all the processes it would be
subjected to under a genuine arbitration may not have com-
pensating advantages and may not be worth trying. But the
experiment should be recognized and known for what it is — as
an arbitration only in name, while in fact nothing but an uncom-
monly ceremonious and elaborate investigation. It is sug
gested that the United States admits the principle of the Brit-
ish proposals, but gets security against a miscarriage of justice
in respect of a territorial claim by reserving to itself a "liberty
of refusal" prior to the arbitration. But the United States'
proposals contemplate no rejection of an award when once arbi-
tration has been resorted to — they reserve only the right not
to go into an arbitration if the territorial claim in dispute
involves the national honor and integrity. The British pro-
posals also reserve the same right. The vital difference between
the two sets of proposals is therefore manifest. Under the
British proposal, the parties enter into an arbitration and deter-
mine afterwards, when they know the result, whether they will
be bound or not. Under the proposals of the United States,
the parties enter into an arbitration having determined before-
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QUESTION OF A PERMANENT TREATY. 979
hand that they will be bound. The latter is a genuine arbi-
tration, the former is a mere imitation, which may have its uses,
but, like all other imitations, can not compare in value with
the real article. It is further suggested that under the pro-
posals of the Unifed States fear of a miscarriage of Justice
might induce the parties to make undue use of the plea that
a claim is not arbitrable, because involving the national honor
and integrity. The possibility of such an abuse undoubtedly
exists and must continue to exist unless the principle of
Article V. of the proposals is to be altogether abandoned. The
fact was fully recognized in my despatch of April 11 last, where
it was suggested that the risks of improper refusals to arbi-
trate questions on the ground of their affecting the national
honor or integrity would be reduced, perhaps minimized, if the
decision in each case were left to the legislature of each country.
It can not be necessary to. now reiterate the considerations
there advanced in support of that suggestion. It is sufficient
to refer to them and to add that thus far no satisfactory answer
to them has occurred to me or has been indicated in any quarter.
Lord Salisbury favors the practical exclusion of territorial
claims from the category of proper arbitral subjects on two
grounds. One is that the number of such claims is unknown
and that, if arbitration respecting them became obligatory,
there would be danger of an enormous multiplication of them.
What grounds would exist for this apprehension were general
arbitration treaties comprehending territorial claims universal
and in force as between each civilized state and every other,
it is difficult to judge and certainly need not now be consid-
ered. A treaty of tbat sort between Great Britain and the
United States being the only thing now contemplated, it is not
easy to imagine how its consummation can bring about the
perils referred to. From what quarter may these numerous
and speculative claims to territory be expected to come! Is
the British Government likely to be preferring them against
the United States or the United States Government likely to
be preferring them against Great Britain? Certainly this
objection to including territorial controversies within the scope
of a general arbitration treaty between the United States and
Great Britain may justly be regarded, if not as wholly ground-
less, as at least of a highly fanciful character.
It is said, in the next place, that the rules of international
law applicable to territorial controversies are not ascertained*,
that it is uncertain both what sort of occupation or control of
territory is legally necessary to give a good title and how lot^S
such occupation or control must continue; that the **pto\eO^
procedure" will be full of "surprises;'' and that the -j.v ^^^
doctrine of '^Hinterland" is illustrative of the unsatv^^ \f>^^
condition of international law upon the subject nnd^^'^^^ Cf^\
sion. But it can not be irrelevant to remark that '^ ^^ ^^^^^ ^/?a
influence" and the theory or practice of the "Hinterl^^\v ^V v^?^
Digitized by LjOOQIC
980 INTERNATIONAL ARBITRATION.
are things unknown to international law and do not as yet rest
upon any recognized principles of either international or mu-
nicipal law. They are new departures which certain great
European powers have found necessary and convenient in the
course of their division among themselves of great tracts of
the continent of Africa, and wljich find their sanction solely in
their reciprocal stipulations. "Such agreements,'' declares a
modem English writer on international law, "remove the
causes of present disputes; but, if they are to stand the test
of time, by what right will they stand ? We hear much of a
certain * Hinterland' doctrine. The accepted rule as to the
area of territory affected by an act of occupation in a land of
large extent has been that the crest of the watershed is the
presumptive interior limit, while the flank boundaries are the
limits of the land watered by the rivers debouching at the
point of coast occupied. The extent of territory claimed in
respect of an occupation on the coast has hitherto borne some
reasonable ratio to the character of the occupation. But
where is the limit to the ' Hinterland doctrine!' Either these
international arrangements can avail as between the parties
only and constitute no bar against the action of any intruding
stranger, or might indeed is right." Without adopting this
criticism, and whether the "spheres of influence" and the
"Hinterland" doctrines be or be not intrinsically sound and
just, there can be no pretense that they apply to the American
continents or to any boundary disputes that now exist there or
may hereafter arise. Nor is it to be admitted that, so far as
territorial disputes are likely to arise between Great Britain
and the United States, the accepted principles of international
law are not adequate to their intelligent and just consideration
and decision. For example, unless the treaties looking to the
harmonious partition of Africa have worked some change^ the
occupation which is suflBcient to give a state title to territory
can not be considered as undetermined. It must be open, exclu-
sive, adverse, continuous, and under claim of right. It need
not be actual in the senseof involving the possessio pedis over the
whole area claimed. The only possession required is such as is
reasonable under all the circumstances — in view of the extent of
territory claimed, its nature, and the uses to which it is adapted
and is put — while mere constructive occupation is kept within
bounds by the doctrine of contiguity. It seems to be thought
that the international law governing territorial acquisition by a
state through occupation is fatally defective because there is no
fixed time during which occupation must continue. But it is
obvious that there can be no such arbitrary time limit except
through the consensus, agreement, or uniform usage of civilized
states. It is equally obvious and much more important to
note that, even if it were feasible to establish such arbitrary
period of prescription by international agreement, it would
not be wise or expedient ta do it. Each case should be left to
Digitized by LjOOQIC
QUESTION OP A PERMANENT TREATY. 981
depend upon its own facts. A state which in good faith colo-
nizes as well as occupies^ brings about large investments of
capita], and founds populous settlements would justly be
credited with a sufficient title in a much shorter space than a
state whose possession was not marked by any such changes
of status. Considerations of this nature induce the leading
English authority on international law to declare that, on the
one hand, it is " in the highest degree irrational to deny that
prescription is a legitimate means of international acquisition ; "
and that, on the other hand, it will " be found both inexpedient
and impracticable to attempt to define the exact period within
which it can be said to have become established — or, in other
words, to settle the precise limitation of time which gives
validity to the title of national possessions." Again : " The
proofs of prescriptive possession are simple and few. They
are, principally, publicity, continued occupation, absence of
interruption (usurpatio)^ aided no doubt generally, both mor-
ally and legally speaking, by the employment of labor and
capital upon the possession by the new possessor during the
period of silence, or the passiveness (inertia)^ or the absence of
any attempt to exercise proprietary rights by the former jws-
sessor. The period of time, as has been repeatedly said, can
not be fixed by international law between nations as it maybe
by private law between individuals ; it must depend upon vari-
able and varying circumstances; but in all cases these proofs
would be required." The inherent justness of these observa-
tions, as well as Sir Kobert Phillimore's great weight as
authority, seems to show satisfactorily that the condition of
international law fails to furnish any imperative reasons for
excluding boundary controversies from the scope of general
treaties of arbitration. If that be true of civilized states
generally, a fortiori must it be true of the two great English-
speaking nations. As they have not merely political institu-
tions, but systems of jurisprudence, identical in their origin
and in the fundamental ideas underlying them, as the law of
real property in each is but a growth from the same parent
stem, it is not easy to believe that a tribunal composed of
judges of the Supreme Court of each, even if a foreign jurist
were to act as umpire, could produce any flagrant miscarriage
of justice. Lord Salisbury puts the supposed case of a terri-
torial controversy involving multitudes of people whose pros-
pects may be darkened and whose lives may be embittered by
its pendency and its decision. The jwssibility of such a case
arising may be conceded, but that possibility can hardly be
deemed a valid objection to a scheme of general arbitration
which is qualified by the proviso that either party may decline
to arbitrate a dispute which in its judgment affects the national
honor or integrity. The proviso is aimed at just such a pos-
sibility and enables it to be dealt with as circumstances may
require. The plan of Lord Salisbury, in view of such a possi-
Digitized by LjOOQ IC
982 INTERNATIONAL ARBITRATION.
bility, is that all the forms and ceremonies of arbitration should
be gone through with, but with liberty to either party to reject
the award if the award is not to its liking. It is respectfully
submitted that a proceeding of that sort must have a tendency
to bring all arbitration into contempt; that each party to a
dispute should decide to abide by an award before entering
into arbitration, or should decide not to enter into it at all,
but, once entering into it, should be irrevocably bound.
The foregoing observations seem to cover such of the sug-
gestions of Lord Salisbury's despatch of May 18 last as have
not already been touched upon in previous correspondence.
By the original proposals of Lord Salisbury, contained in the
despatch of March 6 last, a protested award is to be void, unless
sustained by the appellate tribunal of six judges by a vote of
five to one. He has since suggested that such protested award
may be allowed to stand, unless a tribunal of five Supreme
Court judges of the protesting country shall set it aside for
some error of fact or some error in law. Without committing
myself on the point, it occurs to me as worthy of consideration
whether the original proposals might not be so varied that the
protested award should stand, unless set aside by the appel-
late tribunal by the specified majority. Such a change would
go far in the direction of removing that want of finality to the
proceedings which, as has been urged in previous despatches,
is the great objection to the original proposals.
I have the honor to request that you will lay the foregoing
before Lord Salisbury at your early convenience, furnishing him,
should he so desire, with a copy, which is herewith enclose<l
for that purpose.
I have, etc., Richard Olney.
To the Senate:
I transmit herewith a treaty for the arbitration of all mat-
ters in diflference between the United States and Great Britain.
. The provisions of the treaty are the result of long and
patient deliberation and represent concessions made by each
party for the sake of agreement upon the general scheme.
Though the result reached may not meet the views of the
advocates of immediate, unlimited, and irrevocable arbitration
of all international controversies, it is, nevertheless, confi-
dently believed that the treaty can not fail to be everywhere
Recognized as making a long step in the right direction, and
A embodying a practical working plan by which disputes
fetween the two countries will reach a peaceful adjustment as
>^tter of course and in ordinary routine,
'a the initiation of such an important movement it must be
ected thjit some of its features will assume a tentative
itacter looking to a further advance; and yet it is apparent
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QUESTION OF A PERMANENT TEEATY. 983
lat the treaty which has been formulated notonly makes war
etween the parties to it a remote possibility, but precludes
hose fears aud rumors of war which of themselves too often
issume the proportions of national disaster.
It is eminently fitting as well as fortunate that the attempt
to accomplish results so beneficent should be initiated by
kindred peoples, speaking the same tongue and joined together
by all the ties of common traditions, common institutions, and
common aspirations. The experiment of substituting civilized
methods for brute force as the means of settling international
questions of right will thus be tried under the happiest
auspices. Its success ought not to be doubtful, and the fact
that its ultimate ensuing benefits are not likely to be limited
to the two countries immediately concerned should cause it to
be promoted all the more eagerly. The examples set and the
lesson furnished by the successful operation of this treaty are
sure to be felt and taken to heart sooner or later by other
nations, and will thus mark the beginning of a new epoch in
civilization.
Profoundly impressed as I am, therefore, by the promise of
transcendent good which this treaty aftbrds, I do not hesitate
to accompany its transmission with an expression of my earnest
hope that it may commend itself to the favorable consideration
of the Senate.
Grover Cleveland.
Executive Mansion, January ll, 1897.
January 11, 1897. — Read; treaty read the first time .and referred to
the Committee on Foreign Relations, and, together with the message,
ordered to be printed in confidence for the nse of the Senate.
January 13, 1897. — Ordered that the injunction of secrecy be removed,
January 14, 1897.— Ordered printed.
The United States of America and Her Majesty the Queen
of the United Kingdom of Great Britain and Ireland, being
desirous of consolidating the relations of Amity which so hap-
pily exist between them and of consecrating by Treaty the
principle of International Arbitrationj have appointed for that
purpose as their respective Plenipotentiaries:
The President of the United States of America, the Hon-
ourable Richard Olney, Secretary of State of the United
States; and
Her Majesty the Queen of the United Kingdom of Great
Britain and Ireland, the Right Honourable Sir .^"li
fote, a Member of Her Majesty's Most Bn the prescribed
Council, Knight Grand Gross of the Most >r if the meml>eT8
of the Bath aud of the Most Distinguiivided, thet^^ ^"^
Michael and St. George and Her Majest^eseriptiou \xiv^;\ "C^^
traordinary and Plenipotentiary to the^^has been ix\x>^ /A^^
, x'arties. ^v\i[^
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984 INTERNATIONAL ARBITRATION.
Who, after having commimicated to each other their respec-
tive Full Powers, which were found to be in due and prop^'
form, have agreed to and concluded the foUowing Articles:
Article I.
The High Contracting Parties agree to submit to Arbitration
in accordance with the provisions and subject to the limitations
of this Treaty all questions in difference between them which
they may fail to adjust by diplomatic negotiation.
Article II.
All pecuniary claims or groups of pecuniary claims which do
not in the aggregate exceed £100,000 in amount, and which
do not involve the determination of territorial claims, shall be
dealt with and decided by an Arbitral Tribunal constituted as
provided in the next following Article.
In this Article and in Article IV. the words ^< groups of
pecuniary claims^' mean pecuniary claims by one or more per-
sons arising out of the same transactions or involving the same
issues of law and of fact.
Article III.
Each of the High Contracting Parties shall nominate one
arbitrator who shall be a jurist of repute and the two arbitra-
tors so nominated shall within two months of the date of their
nomination select an umpire. In case they shall fail to do so
within the limit of time above mentioned, the umpire shall be
appointed by agreement between the Members for the time
being of the Supreme Court of the United States and the
Members for the time being of the Judicial Committee of the
Privy Council in Great Britain each nominating body acting
by a majority. In case they shall fail to agree upon an umpire
within three months of the date of an application made to
them in that behalf by the High Contracting Parties or either
of them, the umpire shall be selected in the manner provided
for in Article X.
The person so selected shall be the President of the Tribunal
and the award of the majority of the Members thereof shall be
final.
Article IV.
J embody m^ ' '•^aims or groups of pecuniary claims which
etween the two 00 in amount and all other matters in dif-
>atter of course . of which either of the High Contracting
'n the initiation ights against the other under Treaty or
iected that somv lat such matters in difference do not
iracter looking to u J of territorial claims, shall be dealt
Arbitral Tribunal, constituted as
'X Article.
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QUESTION OF A PERMANENT TREATY. 985
Article V.
Any subject of Arbitration described in Article IV. shall be
submitted to the Tribnnal provided for by Article III., the
award of which Tribunal, if uDanimous, shall be final. If not
unanimous either of the High Contracting Parties may within
six months from the date of the award demand a review
thereof. In such case the matter in controversy shall be sub-
mitted to an Arbitral Tribunal consisting of five jurists of
repute, no one of whom shall have been a member of the
Tribunal whose award is to be reviewed and who shall be
selected as follows, viz: — two by each of the High Contracting
Parties and, one to act as umpire, by the four thus nominated
and to be chosen within three months after the date of their
nomination. In case they shall fail to choose an umpire
within the limit of time above-mentioned, the umpire shall be
appointed by agreement between the Nominating Bodies desig-
nated in Article III. acting in the manner therein provided.
In case they shall fail to agree upon an umpire within three
months of the date of an application made to them in that
behalf by the High Contracting Parties or-either of them, the
umpire shall be selected in the manner provided for in
Article X.
The person so selected shall be the President of the Tribunal
and the award of the majority of the members thereof shall
be final.
Article VI.
Any controversy which shall involve the determination of
territorial claims shall be submitted to a Tribunal composed
of six members three of whom (subject to the provisions of
Article VIII.) shall be Judges of the Supreme Court of the
United States or Justices of the Circuit Courts to be nomi-
nated by the President of the United States, and the other
three of whom, (subject to the provisions of Article VIII.)
shall be Judges of the British Supreme Court of Judicature
or Members of the Judicial Committee of the Privy Council
to be nominated by Her Britannic Majesty, whose award by
a majority of not less than five to one shall be final. In case
of an award made by less than the prescribed majority^ the
award shall also be final unless either Power shall, within
three months after the award has been reported protest that
the same is erroneous, in which case the award shall be of no
validity.
In the event of an award made by less than the prescribed
majority and protested as above provided, or if the members
of the Arbitral Tribunal shall be equally divided, there shall
be no recourse to hostile measures of any description until the
mediation of one or more friendly Powers has been invited by
one or both of the High Contracting Parties.
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986 INTERNATIONAL ARBITRATION,
Article VII.
Objections to the jurisdiction of an Arbitral Tribunal con-
stituted under this Treaty shall not be taken except as pro-
vided in this Article.
If before the close of the hearing upon a claim submitted to
an Arbitral Tribunal constituted under Article III. or Article
V. either of the High Contracting Parties shall move such
Tribunal to decide, and thereupon it shall decide that the
determination of such claim necessarily involves the decision
of a disputed question of principle of grave general impor-
tance affecting the national rights of such party as distinguished
fi'om the private rights whereof it is merely the international
representative, the jurisdiction of such Arbitral Tribunal over
such claim shall, cease and the same shall be dealt with by
arbitration under Article YI.
Article VIII.
In cases where the question involved is one which concerns
a particular State or Territory of the United States, it shall be
open to the President of the United States to appoint a judi-
cial oflBcer of such State or Territory to be one of the the Arbi-
trators under Article III. or Article V. or Article VI.
In like manner in cases where the question involved is one
which concerns a British Colony or possession, it shall be open
to Her Britannic Majesty to appoint a judicial officer of such
Colony or possession to be one of the Arbitrators under Article
III. or Article V. or Article VI.
Article IX.
Territorial claims in this Treaty shall include all claims to
territory and all claims involving questions of servitudes,
rights of navigation and of access, fisheries and all rights and
interests necessary to the control and enjoyment of the terri-
tory claimed by either of the High Contracting Parties.
Article X.
If in any case the nominating bodies desig^iated in Articles
III. and V. shall fail to agree upon an Umpire in accordance
with the provisions of the said Articles, the Umpire shall be
appointed by His Majesty the King of Sweden and ^Norway.
Either of the High Contracting Parties, however, may at
any time give notice to the other tliat, by reason of material
changes in conditions as existing at the date of this Treaty, it
is of opinion that a substitute for His Majesty should be chosen
either for all cases to arise under the Treaty or for a particular
specified case already arisen, and thereupon the High Con-
tracting Parties shall at once proceed to agree upon such sub-
stitute to act either in all cases to arise under the Treaty or in
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QUESTION OP A PERMANENT TREATY. 987
the particular case specified as may be indicated by said notice ;
provided, however, that such notice shall have no effect upon
an Arbitration already begun by the constitution of an Arbi-
tral Tribunal under Article III.
The High Contracting Parties shall also at once proceed to
nominate a substitute for His Majesty in the event that His
Majesty shall at any time notify them of his desire to be
relieved from the functions graciously accepted by him under
this Treaty either for all cases to arise thereunder or for any
particular specified case already arisen.
Article XI.
In case of the death, absence or incapacity to serve of any
Arbitrator or Umpire, or in the event of any Arbitrator or
Umpire omitting or declining or ceasing to act as such, another
Arbitrator or Umpire shall be forthwith appointed in his place
and stead in the manner provided for with regard to the origi-
nal appointment.
Article XII.
Each Government shall pay its own agent and provide for
the proper remuneration of the counsel employed by it and of
the Arbitrators appointed by it and for the expense of prepar:
ing and submitting its case to the Arbitral Tribunal. All
other expenses connected with any Arbitration shall be de-
frayed by the two Governments in equal moieties.
Provided, however, that, if in any case the essential matter
of diflFerence submitted to arbitration is the right of one of the
High Contracting Parties to receive disavowals of or apologies
for acts or defaults of the other not resulting in substantial
pecuniary injury, the Arbitral Tribanal finally disposing of
the said matter shall direct whether any of the expenses of
the successful party shall be borne by the unsuccessful party,
and if so to what extent.
Article XIIL
The time and place of meeting of an Arbitral Tribunal and
all arrangements for the hearing and all questions of procedure
shall be decided by the Tribunal itself.
Each Arbitral Tribunal shall keep a correctrecord of its pro-
ceedings and may appoint and employ all necessary officers and
agents.
The decision of the Tribunal shall, if possible, be made within
three months from the close of the arguments on both sides.
It shall be made in writing and dated and shall be signed by
the Arbitrators who may assent to it.
The decision shall be in duplicate, one copy whereof shall be
delivered to each of the High Contracting Parties through thw
respective agents.
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988 INTERNATIONAL ARBITRATION.
Article XIV.
This Treaty shall remain in force for five years from the date
at which it shall come into operation, and further until the
expiration of twelve months after either of the High Contract-
ing Parties shall have given notice to the other of its wish to
terminate the same.
Article XV.
The present Treaty shall be duly ratified by the President of
the United States of America, by and with the advice and con-
sent of the Senate thereof and by Her Britannic Majesty; and
the mutual exchange of ratifications shall take place in Wash-
ington or in London within six months of the date hereof or
earlier ii possible.
In faith whereof, we, the respective Plenipotentiaries, have
signed this Treaty and have hereunto affixed our seals.
Done in duplicate at Washington, the 11th day of January,
1897.
Richard Olney.
Julian Pauncefotb.
L. s.
L. s.
With reference to this treaty President McKinley, in his
inaugural address, said:
"We want no wars of conquest; we must avoid the tempta-
tion of territorial aggression. War should never be entered
upon until every agency of peace has failed; peace is prefer-
able to war in almost every contingency. Arbitration is the
true method of settlement of international as well as local or
individual differences. It was recognized as the best means
of adjustment of differences between employers and employees
by the XLIX. Congress in 1886, and its application was
extended to our diplomatic relations by the unanimous concur-
rence of the Senate and House of the LI. Congress in 1890.
The latter resolution was accepted as the basis of negotiations
with us by the British House of Commons in 1893, and upon our
invitation a treaty of arbitration between the United States
and Great Britain was signed at Washington and transmitted
to the Senate for ratification in January last.
^' Since this treaty is clearly the result of our own initiative,
since it has been recognized as the leading feature of our for-
eign policy throughout our entire national Iiistory — the adjust-
ment of difficulties by judicial methods rather than force of
arms — and since it presents to the world the glorious example
of reason and peace, not passion and war, controlling the
relations between two of the greatest nations of the world, an
example certain to be followed by others, I respectfully urge
the early action of the Senate thereon, not merely as a matter
of policy, but as a duty to mankind. The importance and
moral influence of the ratification of such a treaty can hardly
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QUESTION OF A PERMANENT TREATY. 989
be overestimated in the cause of advancing civilization. It
may well engage the best thought of the statesmen and people
of every country, and I can not but consider it fortunate that
it was reserved to the United States te have the leadership in
so grand a work.'^
The Senate of the United States, in the exercise of its con-
stitutional functions, declined to give, by the necessary concur-
rence of two-thirds of the Senators present, its advice and
consent to the exchange of the ratifications of the foregoing
treaty. It is understood, however, that the subject of a per-
manent treaty of arbitration between the two nations is still
under consideration.
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