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HE TREATY OP WASHINGTON
MIMa«««««RWllMSK«KftSS«lH<«««!PB1rtt««ttl«W»(*«rttiMs^
THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
THE
TREATY OF WASHINGTON:
ITS
NEGOTIATION, EXECUTION,
AND THE DISCUSSIONS RELATING THERETO.
BY
CALEB GUSHING.
1 > i' >
NEW YORK:
HAIIPER
& BROTHERS,
PUBLISHERS,
FRANKLIN SQUARE.
,
1S73.
V*-* 9»^ jr*% "***
9
Entered according to Act of Congress, in the year 1873, by
HARPER it BROTHERS,
In the Office of the Librarian of Congress, at Washington.
• *-,*,* *
t-* :*
' * * C « I,
t « t • « « «
c t « c c ■ ,
y
INSCRIBED,
IN TESTIMONY OF PEOFOUND RESPECT,
TO
COUNT FREDERIC SCLOPIS, OF SAIERANO,
MINISTER OF STATE,
SENATOR OF THE KINGDOM OF ITALY.
4'
CONTENTS
^ r PAGE
c^ CHAPTER I. INTRODUCTION. 9
Ik chapter II. ALABAMA CLAIMS 15
Conduct of Great Britain toward the United States during the late
Civil War 15
Negotiations by Mr. Seward 17
\ Policy of President Grant 18
Overtures by Great Britain 20
Stipulations respecting the Alabama Claims 21
•V Arrangements of Arbitration 26
'^ The American Case 30
^ Explanation of Objections to the American Case 33
Agitation respecting the National Claims Si
Cause of this Agitation 39
Discussion between the two Governments 42
English Misconception of American Sentiment 48
Attitude of the American Government 52
Action of the American Agent and Counsel 55
Presentation of Counter-Cases 57
vi CONTENTS.
* PAGE
Ncgotiiitions for a Supplemental Treaty C2
rrcsentation of Arguments for the United States GG
Decision of the Arbitrators respecting National Losses G9
Seat of the Arbitration 7-t
Count Frederic Sclopis 77
Mr. Sta;mpfli 80
Viscount of Itajubii 81
Sir Alexander Cockburn 8C
Mr. Charles Francis Adams 03
Secretary of the Tribunal 9i
Agents and Counsel 9 i
EfiForts of the British Government to obtain Eeargumcnt 99
Rules concerning the Conferences of the Tribunal 1 OG
Discussions of the Tribunal 109
Sir Alexander Cockburn's Call for Reargument Ill
Case of the Florida decided Ill
Special Arguments ordered on Certain Points 117
Case of the Alabama decided 1 18
Case of the Shenandoah decided 120
The Special Arguments 121
Question of Damages 12-t
Final Judgment of the Tribunal • 125
Announcement of the Decision 120
Conduct of the British Arbitrator 128
CONTENTS. vii
PAGE
Sir Alexander Cockburn's Reasons for Dissent 128
Review of Sir Alexander Cockburn's "Reasons " ICO
Opinions of the other Arbitrators 14'j
Review of the Decision of the Tribunal on National Losses 153
Decision as to Private Losses 159
Effect of the Award 1G4
Validity of the Award 1G7
Filibuster Objections 177
Sale of Arms not affected by the Treaty or the Award 180
Question of Supplies of Coal 180
Wliat the United States have gained by the Award 184
CHAPTER IIL MISCELLANEOUS CLAIMS 187
Treaty Provisions 187
Private Claims on Governments * 180
Usefulness of Mixed Commissions 193
Other Forms of Arbitration 195
Tendency of Reason and Justice to prevail over Force 197
Theory of Arbitration 200
Wisdom of the present Mixed Commission 201
CHAPTER IV. THE NORTHWESTERN BOUNDARY-LINE.. 203
Provisions of the Treaty 203
Historj- of the Question 205
The Award 221
viii CONTENTS.
PAGE
CHAPTER V. THE FISHERIES 22G
History of the Question 22G
Provisions of the Treaty of Washington 237
Probable Amount of Indemnity 239
CHAPTER VI. COMMERCIAL INTERCOURSE AND TRANS-
PORTATION. 241
Treaty Provisions 241
Relation of the British Provinces to the United States 247
APPENDIX.— r/Z^ TREATY OF WASHINGTON 257
THE DECISION AND A WARD 275
THE
TREATY OF WASHINGTON,
CHAPTER I.
INTRODUCTION.
The Treaty of Washii^gto]^, whether it be regard-
ed in the light of its general spirit and object, of its
particular stipulations, or of its relation to the high
contracting parties, constitutes one of the most nota-
ble and interesting of all the great diplomatic acts of
the present age.
It disposes, in forty-three articles, of five different
subjects of controversy between Great Britain and
the United States, two of them European or imjDerial,
three American or colonial, and some of them of such
nature as most imminently to imperil the precious
peace of the two great English-speaking nations.
Indeed, several of these objects of controversy are
questions coeval with the national existence of the
United States, and which, if lost sight of occasionally
in the midst of other pre-occupations of peace or war,
yet continually came to the surface again from time
(/
10 THE TREATY OF WASHINGTON.
to time to vex and disturb the orood iinderstaiidiiio-
of botli Governments. Others of the questions, al-
though of more modern date, incidents of our late
Civil War, were all the more irritatino-, as beins; fresh
W' ounds to the sensibility of the j^eople of the United
States.
If, to all these considerations, be added the fact that
negotiation after negotiation respecting these ques-
tions had failed to resolve them in a satisfectory
manner, it w^ill be readily seen how gi'eat was the
diplomatic triumph achieved by the Treaty of Wash-
in2;ton.
It required joeculiar inducements and agencies to
accomi^lish this great result.
Prominent among the inducements w^ere the pacific
spirit of the President of the United States and the
Queen of Great Britain, and of their respective Cabi-
nets, and the sincere and heartfelt desire of a great
majority of the people of both countries that no
shadow of offense should be allowed any longer to
linger on the face of their international relations.
Great Britain, it is but just to her to say, if not con-
fessedly conscious of wrong, yet, as being the party to
, whom wrong was imputed, did honorably and w^isely
make the decisive advance toward reconciliation, by
consenting to dispatch five Commissioners to Wash-
ington, there, under the eye of the President, to treat
wdth five Commissioners on behalf of the United
States.
*
Diplomatic congresses have assembled on j^revious
occasions to terminate the great wars of Europe, or
ii
INTRODUCTION. H
to maintain and consolidate peace in America. And
conferences, like tliose of Vienna, of Aix-la-Cbapelle,
of Paris, may have embraced the representation and
settled the interests of a larger number of nations; but
they did not consist of higher personages, nor did
they treat of larger matters than did the conference
of Washington.
On the part of the United States were five persons,
— Hamilton Fish, Robert C. Schenck, Samuel Nelson,
Ebenezer Rockwood Hoar, and George H.Williams, —
eminently fit representatives of the diplomacy, the
bench, the bar, and the legislature * of the United
States : on the part of Great Britain, Earl De Grey
and Ripon, President of the Queen's Council ; Sir Staf-
ford Northcote, ex-Minister and actual Member of the
House of Commons ; Sir Edward Thornton, the uni-
versally respected British Minister at Washington ;
Sir John Macdonald, the able and eloquent Premier of
the Canadian Dominion ; and, in revival of the good
old time, when learning was equal to any other title
of public honor, the Universities in the person of
Professor Mountague Bernard.
With persons of such distinction and character, it
was morally impossible that the negotiation should
fail : the negotiators were hound to succeed. Their
reputations, not less than the honor of their resj^ective
countries, were at stake. The circumstances involved
moral coercion, more potent than physical force. The
issues of peace and of war were in the hands of those
ten personages. They were to illustrate the eternal
truth that, out of the differences of nations, comj)etent
12 THE TREATY OF WASHINGTON.
statesmen evolve peace ; and that it is only by the
incomi^eteuey of statesmen of one side or the other, —
tliat is, tlieir ignorance, their passion, their prejudice,
their want of forecast, or their Avillfully aggressive
ambition, — that the unspeakable calamities of war are
ever thrust on the suffering world. Neither Mr. Fish
nor Earl De Grey, nor their respective associates,
could afford to take on their consciences the respon-
sibility, or on their characters the shame, of the non-
success on this occasion of a last effort to renovate
and re-establish in perpetuity relations of cordial
friendship between Great Britain and the United
States. And, if they needed other impulse to right
conclusion, that was given by the wise and firm direc-
tion of the President, here in person, and of the Queen,
here in effect through the means of daily telegraphic
communication.
Happily for the peace of the two countries and for
the welfare of the world, the negotiators proved equal
to the emergency, in courage as well as in statesman-
ship. The Government and the people of Great Brit-
ain had learned to regret sincerely the occurrence of
the acts or facts which had given such deep Qffense,
and which had done such serious injury, to the United
States ; and, moreover, the Government and peoj)le of
this country had come to desire, with equal sincerity,
that some honorable solution of the existinir difRcul-
ties might be found, so as to leave room for the un-
obstructed action here of the prevailing natural tend-
ency toward unreserved intellectual and commercial
association with Great Britain. Material interests,
INTRODUCTION. 13
social sentiments, incidental circumstances, all invited
both nations to cordial reunion.
In the face of many difficulties, the Commissioners,
on the 8th of May, 1871, completed a treaty, which
received the prompt approval of their respective
Governments; which has passed unscathed through
the severest ordeal of a temporary misunderstanding
between the two Governments respecting the con-
struction of some of its provisions ; which has already
attained the dignity of a monumental act in the esti-
mation of mankind ; and which is destined to occupy
hereafter a lofty place in the history of the diplomacy^
and the international jurisprudence of Europe and
America.
Coming now to the analysis of this treaty, we find
that Articles I. to XL inclusive make provisions for
the settlement by arbitration of the injuries alleged
to have been suffered by the United States in conse-
quence of the fitting out, arming, or ec^uipping, in thel
ports of Great Britain, of Confederate cruisers to
make war on the United States.
Articles XII. to XVII. inclusive make provision to
settle, by means of a mixed Commission, all claims on
either side for injuries by either Government to the cit- j
izens of the other during the late Civil War, other than |
claims growing out of the acts of Confederate cruisers 1
disposed of by the previous articles of the Treaty.
Articles XVIII. to XXV. inclusive contain provi-j
sions for the permanent regulation of the coast fish-,
eries on the Atlantic shores of the United States and;
of the British Provinces of Quebec, Nova Scotia, and
14 THE TREATY OF WASUINGTON.
New Brunswick, and the Colony of Prince Edward's
Island [including the Colony of Newfoundland by
Article XXXIL].
Articles XXVI. to XXXIII. inclusive provide for
the reciprocal free navigation of certain rivers, includ-
ing: the lliver St. Lawrence ; for the common use of
. . .
' certain canals in the Canadian Dominion and in the
United States ;. for the free navigation of Lake Mich-
igan ; for reciprocal free transit across the territory
either of the United States or of the Canadian Do-
minion, as the case may be: the whole, subject to
Jegislative provisions hereafter to be enacted by the
several Governnlents.
Articles XXXIV. to XLII. provide for determining
, by arbitration which of two different channels be-
i tween Vancouver's Island and the main-land consti-
tutes the true boundary -line in that region of the
territories of the United States and Great Britain.
Each of these five distinct classes of questions will
receive separate consideration.
ALABA^IA CLAIMS. 15
CHAPTER IL
ALABAMA CLAIMS.
CONDUCT OF GREAT BRITAIN TOWARD THE UNITED STATES
DURING THE LATE CIVIL WAR.
At tlie conclusion of the Civil War, intense feeling
of indignation against Great Britain pervaded the
minds of 'the Government and Congress of the United
States, and of the people of those of the States w^hich
had devoted themselves to maintainins; in arms the
integrity o^ the Union against the hostile efforts of
the Southern Confederation.
We charged and we believed that Great Britain
and her Colonies had been the arsenal, the navy-yard,
and the treasury of the Confederates.
We charged and we believed that Confederate
cruisers, which had depredated largely on our ship-
ping and maritime commerce, never could have taken
and never held the sea, but for the partiality and
gross negligence of the British Government.
We charged and we believed that but for the pre-
mature recognition of the belligerence of the Confed-
erates by Great Britain, and the direct aid or sup-
plies which were subsecjuently furnished to them in
British ports, the insurrection in the Southern States
never would have assumed, or could not have retained,
\
16 THE TREATY OF WASHINGTON,
tliose gigantic proportions, wLicli served to render it
so costly of blood and of treasure to the whole Union,
and so specially disastrous to the Southern States
themselves.
AVe charged and we believed that, in all this. Great
Britain, through her Government, had disregarded
the obligations of neutrality imj^osed on her by the
law of nations to such manifest deo-ree as to have af
forded to the United States just and ample cause of
war.
The United States, through all these events, with
William H. Seward, as Secretary of State, and Charles
Francis Adams, Minister at London, had not failed to
address continual remonstrances to the British Gov-
ernment, demanding reparation for past Avrong and
the cessation from continuous wrons:: Avhich remon-
strances did, in fact, at length awaken tbe British
Government to greater vigilance in the discharge of
its international duties, but could not induce it to
take any step toward reparation so long as Earl Rus-
sell [then Lord John Russell], by whose negligence or
misjudgment the injuries had hai~>pened, remained in
chartre of the foreiccn affairs of the Government. That
statesman, wOiile, on more than one occasion, expressly
admitting the wrong done to the United States, still
persisted, with singular obtuseness or narrowness of
mind, in maintaining that the lionor of England would
not permit her to make any reparation to the United
States.
Never, in the history of nations, has an occasion ex-
isted where a powerful people, smarting imder the
ALABAMA CLAIMS. ' 17
consciousness of injury, manifested greater magnanim-
ity than was displayed in that emergency by the
United States.
We had on the sea hundreds of ships of war or of
transport ; we had on land hundreds of thousands of
veteran soldiers under arms ; we had officers of land
and sea, the combatants in a hundred battles : all this
vast force of war was in a condition to be launched
as a thunderbolt at any enemy ; and, in the present
case, the possessions of that enemy, whether conti-
nental or insular, lay at our very door in tempting
helplessness.
But neither the Government and people of the
United States, nay, nor their laurel-crowned Gener-
als and Admirals, desired war as a choice,. nor would,
accept it but as a necessity ; and they elected to con-
tinue to neijotiate with Great Britain, and to do what
no great European State has ever done under like cir-
cumstances, — that is, to disarm absolutely, and make
thorough trial of the experiment of generous forbear-
ance before having recourse to the dread extremity
of vengeful hostilities against Great Britain.
NEGOTIATIONS BY ME. SEWARD.
The event justified our conduct. To the prejudiced
and impracticable Lord Eussell, there succeeded in
charo-e of the foreiojn affairs of the British Govern-
ment, first. Lord Stanley [now the Earl of Derby],
and then the Earl of Clarendon, who, more wise and
just than he, successively entered upon negotiations
with the United States on that very basis of arbitra-
B
IS THE TREATY OF WASHINGTON.
tion wLicli he Lad so peremptorily rejected, but which
Mr. Sewiird persisted in asserting as wise in itself and
honorable to both Governments.
Those negotiations fiiiled. But the rejection by
the Senate of the Clarendon -Johnson Treaty, with
Mr. Sumner's commentary thereon, if it had the ajD-
parent effect, at first, of widening the breach between
the two countries by the irritation it produced in En-
gland, yet ultimately had the opposite effect by forc-
ing on 2^ublic attention there a more general and
clearer perception of the wrong which had been done
to the United States.
POLICY OF PRESIDENT GRANT.
At this stage of the question, President Grant came
into office ; and he and his advisers seem to have well
judged that it sufficed for him, after giving expres-
sion fully and distinctly to his own view of the
questions at issue, there to pause and wait for the
tranquillization of opinion in England, and the prob-
able initiation of new negotiations by the British
Government.
It happened as the President anticipated, and with
attendant circumstances of j^eculiar interest to the
United States. -%
During the late war between Germany and France,
the condition of Eurojie was such as ta induce the
British Ministers to take into consideration the for-
eign relations of Great Britain ; and, as Lord Gran-
ville, the British Minister of Foreign Affairs, has him-
self stated in the House of Lords, they saw cause to
ALABAMA CLAIMS. 19
look with solicitude ou.tbe uneasy relations of the
British Government with the United States, and the
inconvenience thereof in case of possible complica-
tions in Europe. Thus impelled, the Government
dispatched to AYashiugton a gentleman, who enjoyed
the confidence of both Cabinets, Sir John Rose, to as-
certain whether overtures for re-opening negotiations
would be received by the President in spirit and
terms acceptable to Great Britain.
It was the second time, in the present generation,
that the foreign 2:)olicy of England had been directed
by a sense of the importance to her of maintaining
good relations with the United States ; for, by argu-
ing from that point, France, at the opening of war
wdth Prussia, induced the British Government to de-
sist from those excessive belligerent pretensions to
the prejudice of neutrals, which in former times had
served to embroil her with both France and the Unit-
ed States.
There is another fact, which, in my opinion, power-
fully contributed to induce this overture on the part
of the British Government, although it was not spok-
en of in this connection by Lord Granville. I allude
to the President's recommendation 'to Congress to ap-
point a coni^iission to audit the claims of American
citizens on Great Britain growing out of the acts of
Confederate cruisers, in view of havins; them assumed
by the Government of the United States. In this in-
cident there was matter of grave and serious reflection
to Great Britain.
On arriving at Washington, Sir John Rose found
20 THE TREATY OF WASHINGTON.
tlie United States disposed to meet with perfect cor-
resi:)ondence of good-will the advances of the British
Government.
OVERTURES BY GREAT BRITAIN.
Accordingly, on the 2Gtli of January, 1871, the
Bi-itish Government, through Sir Edward Thornton,
formally proposed to the American Government the
appointment of a joint High Commission to hold its
sessions at Washington, and there devise means to
settle the various pending questions between the two
Governments aftecting the British possessions in
North America.
To this overture Mr. Fish replied that the President
would with pleasure appoint, as invited, Commission-
ers on the part of the United States, provided the de-
liberations of the Commissioners should be extended
to other differences, — that is to say, to include the dif-
ferences growing out of incidents of the late Civil
War: without which, in his opinion, the proposed
Commission would fail to establish those permanent
relations of sincere and substantial friendship between
the two countries which he, in common Avith the
Queen, desired to 'have prevail.
The British Government promptly accepted this
proposal for enlarging the sphere of the negotiation,
w ith the result, as we have already seen, of the con-
clusion of the Treaty of Washington.
ALABAMA CLAIMS. 21
STirULATIONS EESPECTING THE ALABAMA CLAIMS.
The Treaty begins by describing tbe differences,
which we are now considering, as differences " grow-
ing out of the acts committed by the several ve'ssels,
\vhich have given rise to the claims generically known
as the Alabama Claims;'' which are further de-
scribed as " all the said claims growing out of acts
committed by the aforesaid vessels, and generically
known as the Alabama Claims.^''
Note that the subject of difference is stated in terms
of absolute, although specific, universality, as all the
claims on the part of the United States growing out
of the acts of certain vessels. No exception is made
of any particular claims growing out of those acts.
And reference is not made to certain admitted claims
by the British Government : on the contrary, it is ex-
pressly declared in the Treaty that the " complaints"
and " claims" of the United States, without any dis-
crimination between them, " are not admitted by the
British Government."
At the same time, the Bi'itish Commissioners, by
authority of the Queen, express, " in a friendly spirit,
the regret felt by Her Majesty's Government for the
escape, under whatever circumstances, of the Alabama
and other vessels from British ports, and for the dep-
redations committed by those vessels."
Whereupon, " in order to remove and adjust all
complaints and claims on the part of the United
States, and to provide for the speedy settlement of
such claims," the contracting parties rgree that all
22 THE TREATY OF WASHINGTON.
the said claims, growing out of acts committed by the
aforesaid vessels, and generically known as the Ala-
bama Claims, sliall be referred to a Tribunal of Ar-
bitration to be composed of five Arbitrators, appoint-
ed irfthe following manner, — namely, one by the Pres-
ident of the United States, and one by the Queen of
the United Kingdom, with request to the King of
Ital}', the Pi'esident of the Swiss Confederation, and
the Empei'or of Brazil, each to name an Arbitrator ;
and, on the omission of either of those personages to
act, then with a like request to the King of Sweden
and Norway.
The Treaty further provides that the Arbitrators
shall meet at Geneva-, in Switzerland, at the earliest
convenient day after they shall have been named, and
shall proceed impartially and cai'efully to examine
and decide all questions which shall be laid before
them on the part of either Government.
In deciding the matters submitted to the Arbitra-
tors, it is provided that they shall be governed by
certain rules, which are agreed upon by the parties as
rules to be taken as applicable to the case, and by
such principles of international law, not inconsistent
therewith, as the Arbitrators shall determine to have
been applicable to the case, which rules are as fol-
lows :
"A neutral Government is bound —
"First, to use due diligence to prevent the fitting out, arm-
ing, or equipping, within its jurisdiction, of any vessel which it
has reasonable ground to believe is intended to cruise or to
carry on war against a Power with which it is at peace; and
also to use like diligence to prevent the departure from its ju-
ALABAMA CLAIMS. * 23
risdiction of any vessel intended to cruise or carry on war as
above, such vessel having been specially adapted, in whole or
in part, within such jurisdiction, to warlike use.
" Secondly, not to permit or sufter either belligerent to make
nse of its ports or waters as the base of naval operations against
the other, or for the purpose of the renewal or augmentation
of military supplies or arms, or the recruitment of men.
" Thirdly, to exercise due diligence in its own ports and wa-
ters, and, as to all persons within its jurisdiction, to prevent
any violation of the foregoing obligations and duties."
Great Britain, it is added in tlie Treaty by Avay of
explanation, can not assent to the foregoing rules as
a statement of principles of international law whicli
were actually in force at the time when the claims in
question arose ; but, in order to evince her desire of
strengthening the friendly relations between the two
countries, and of making satisfactory provision for the
future, she agrees that, in deciding the questions aris-
ing out of such claims, the Arbitrators should assume
that she had undertaken to act upon the priuci23les
set forth in these rules.
And the Parties proceed to stipulate to observe
these rules as between themselves in the future, and
to bring them to the knowledge of other maritime
Powers, and to invite the latter to accede thereto.
In respect of procedure, the Treaty provides that
each of the two Parties shall name one person to at-
tend the Tribunal~as its agent or representative;
that the written or printed case of each of the two
Parties, accompanied by the documents, the official
correspondence, and other evidence on which each
relies, shall be delivered in duplicate to each of the
24 •THE TREATY OF WASIIINGTOX.
Arbitrators and to the accent of tbe other Party, as
soon as may be after the organization of the Tribu-
nal; that within four months after the delivery on
both sides of the written or printed, case, either Party
may, in like manner, deliver in du2:)licate to each of
the said Arbitrators and to the acrent of the other
Party a counter-case, and additional documents, cor-
respondence, and evidence, in reply to the case, docu-
ments, correspondence, and evidence so presented by
the other Party; that it shall be the duty of the
agent of each Party, within two mouths after the ex-
piration of the time limited for the delivery of the
counter-case on both sides, to deliver in duplicate to
each of the said Arbitrators and to the a2;ent of the
other Party a written or printed argument showing
the points and refening to the evidence upon which
his Government relies.
No express provision for the appointment of coun-
'sel appears in the Treaty; but they are recognized
in the clause which declares that the Arbitrators
may, if they- desire further elucidation with regard
to any point, require a written or printed state-
ment or argument, or oral argument, by counsel upon
it; but in such case the other Party shall be enti-
tled to reply either orally or in writing, as the case
may be.
Finally, with reference to procedure, it is stipu-
lated that the Tribunal shall first determine as to
each vessel separately, whether Great Britain has, by
any act or omission, fixiled to fulfill any of the duties
set forth in the Treaty rules, or recognized by the
ALABAMA CLAIMS. 25
principles of international law not inconsistent witli
such rules, and shall certify such fact as to each of
the said vessels. This decision shall, if possible, be
reached within three months from the close of the
argument on both sides.
In case the Tribunal finds that Great Britain has
failed to fulfill any duty or duties as aforesaid, it may,
if it think proper, proceed to award a sum in gross
to be paid by Great Britain to the United States for
all the claims referred to it; and in such case the
gross sum so awarded shall be paid in coin by the
Government of Great Britain to the Government of
the United States, at Washington, within twelve
months after the date of the award.
In case the Tribunal finds that Great Britain has
failed to fulfill any duty or duties as aforesaid, and
does not award a sum in gross, the Parties agree that
a Board of Assessors shall be aj^pointed to ascertain
and determine what claims are valid, and what
amount or amounts shall be paid by Great Britain
to the United States on account of the liability aris-
ing from such fjiilure, as to each vessel, according to
the extent of such liability as decided by the Arbi-
trators. This Board to be constituted as follows:
One member thereof to be named by the United
States, one b}^ Great Britain, and one by the Bepre-
sentative at Washiuo-ton of the Kins: of Italy.
In conclusion, the Parties engage to consider the
result of the proceedings of the Tribunal of Arbitra-
tion and of the Board of Assessors, should such
Board be appointed, " as a full, perfect, and final set-
26 THE TREATY OF WASIIINGTOX.
tlemeiit of all the claims" in question ; and further
engage that "every such claim, -whether the same
may or may not have been presented to the notice
of, made, preferred, or laid before the Tribunal or
Board, shall, from and after the conclusion of the
proceedings of the Tribunal or Board, be considered
and treated as finally settled, barred, and thenceforth
inadmissible."
AKRAXGEMENTS OF ARBITRATION.
The appointment of Arbitrators took place in due
course, and with the ready good-Avill of the three neu-
tral Governments. The United States appointed Mr.
Charles Francis Adams ; Great Britain appointed Sir
Alexander Cockburn ; the Kiug of Italy named Count
Frederic Sclopis ; the President of the Swiss Confed-
eration, Mr. Jacob Stsempfli ; and the Emperor of
Brazil, the Baron d'ltajubd.
' Mr. J. C. Bancroft Davis Avas appointed Agent of
the United States, and Lord Tenterden of Great
Britain.
The Tribunal was organized for the reception of
the case of each Party, and held its first conference on
the 15tli of December, 1871.
On the motion of Mr. Adams, seconded by Sir
Alexander Cockburn, it was voted that Count Sclopis,
as -being the Arbitrator named by the first Power
mentioned in the Treaty after Great Britain and the
United States, should preside over the labors of the
Tribunal.
I observe in passing, as will be more distinctly seen
ALABAMA CLAIMS. 27
hereafter, that the personal fitness of Count Sclopis
also rendered it eminently proper that he should pre-
side ; for he was the senior in age of all the Arbitra-
tors, of exalted social condition, and distinguished as
a man of letters, a jurist, and a statesman.
On the proposal of Count Sclopis, the Tribunal of
Arbitration requested the Arbitrator named by the
President of the Swiss Confederation to recommend
some suitable person to act as the Secretary of the
Tribunal. Mr. Staemj^lli named for this ofiice Mr.
Alexandre Favrot, and he was accordingly appointed
Secretary.
The printed Case of the United States, with accom-
panying documents, was filed by Mr. Bancroft Davis,
and the printed Case of Great Britain, with docu-
ments, by Lord Tenterden.
The Tribunal made regulation for the filing of the
resj)ective Counter-Cases on or before the 15th day of
April next ensuing, as required by the Treaty ; and
for the convening of a special meeting of the Tribu-
nal, if occasion should require ; and then, at a second
meeting, on the next day, they adjourned until the .
15th of June next ensuing, subject to a prior call by
the Secretary, if there should be occasion, as provided
for in the proceedings at the first Conference.
The record of these, and of all the subsequent Con-
ferences of the Tribunal, is contained in alternate Pro-
tocols, drawn up both in French and in English, veri-
fied by the signatures of the President and Secretary,
and of the asfents of the two Governments.
In these opening proceedings, that is, at the very
2S THE TREATY OF WASHINGTON.
earliest moment possible, signs became visible o['
the singular want of discretion and good sense of
the " enfimt terrible," ostautcitioualy 2yi'otocoIe(l "Lord
Chief Justice of England," whom the British Govern-
ment had placed on the Tribunal.
The 'vernacular tongue of Count Sclopis was Ital-
ian ; that of the Baron dTtajuba, Portuguese ; and
that of Mr. St?empfli, German. Count Sclopis spoke
and read English, and Mr. Stismpfli read it. All the
Arbitrators, however, were well acquainted with
French ; and it was in this language that they com-
municated with one another, whether in social inter-
course or in the discussions of the Tribunal. Thus,
we had before us a Tribunal, the members of which
did not either of them make use of his own language
. in their common business ; but met, all of them, on
the neutral ground of the common diplomatic lan-
guage of Europe.
In this connection it ^vas that the United States
enjoyed their first advantage. Our Government did
not need to wait until the organization of the Tribu-
. nal to know in what language its proceedings would
be conducted ; and, in prevision of this fact, it ordered
the American "Case" to be translated from the En-
glish into French, so as to be presented simultaneous-
ly in both languages at the meeting of the Tribu-
nal : the exigency for which was not anticipated,
or, if anticipated, was not provided for, by the Brit-
ish Government.
The American " Case " and documents are contain-
ed in eiszht volumes octavo, which consist in all of
ALABAMA CLAIMS. 29
5442 pages, as reduced to a common standard, that of
the printing by Congress.
The British " Case " and documents fill, in the re-
print by Congress, three volumes octavo, consisting of
2823 pages.
Perusal of the American and British Cases, and of
their accompanying documents on both sides, brings
us to consideration of the peculiarities in the course
of argument and trial prescribed by the Treaty.
In effect, the United States were the plaintiffs, and
Great Britain the defendant, in a suit at law, to be
tried, it is true, before a special tribunal, and deter-
mined by conventional rules, but not the less a suit
at law for the recovery of damages in reparation of
alleged injuries.
In common course, the plaintiff's counsel would
oj^en his case and put in his evidence ; the defendant's
counsel would then open the defense and put in de-
fensive proofs ; and, after the close of the testimony
on both sides, the defendant's counsel would argue in
close for the defense, and then the plaintiff's counsel
in final close for the plaintiff.
Here, on the contrary, the defendant's opening argu-
ment and defensive proofs went in at the same time
as the plaintiff's opening argument and proofs, each
under the name of the "Case" of the resj^ective Party.
The British Case, of course, could not answer the
American Case, save by conjecture and anticipation
founded on common knowledge of the subject-matter.
The respective Counter-Cases of the Parties were
to go in together, in like manner, in April, and their
30 THE TREATY OF WASHINGTON.
respective Arorumeuts in Juue : so tliat the Counter-
Cases would on eacli side be response to the previous
Cases, and the Arguments to the previous Counter-
Cases.
This course of presentation was in no sort prejudi-
cial to the United States, as plaintiffs, and was exceed-
ingly advantageous to Great Britain, as defendant.
THE AMERICAN CASE.
Nevertheless, when our " Case " went in, — that is to
say, the opening argument for the United States, — its
true character as such was misapprehended in En-
gland, where it seemed to be forgotten that the time
and place for replying to it were in the British Coun-
ter-Case, and not in the newspapers of London or in
the British Parliament.
Similar misconception occurred subsequently with
regard to the American Argument; the Counsel for
Great Britain thinking that he ought to have the op-
portunity of replying, as will be explained hereafter,
and losins: sis-ht of the fact that the British Govern-
ment had already argued the matter three times in
" Case," " Counter-Case," and " Argument."
As to the American Case, it seemed to fall into the
adversary's camp like a bomb-shell, which rendered
every body dumb for a month, and then produced
an explosion of clamor, which did not cease for three
or four months, and until the final decision of the
Tribunal of Arbitration.
The leading journals of England, whether daily or
weekly, such as the London Times, Telegraph, and
ALABAMA CLAIMS. .31
News, the Saturday Eeview, the S2:)ectator, the Pall
Mall Gazette, the Manchester Guardian, and other
British journals generally, are certainly conducted
with great ability, and are second, in character and in
value, to no others in Europe. In view of which it
must be confessed that the outcry which they made
ao-ainst the American Case seemed to me at the time
to be altogether unworthy of them and of England.
It was my opinion on reading the American Case
for the first time, and is my opinion now, after re-
peated readings, that it is not only a document of
signal ability, learning, and forensic force, — which, in-
deed, every body admits, — but that it is also temper-
ate in language and dignified in spirit, as becomes
any state paper which is issued in the name of the
United States.
I do not mean to say that it is so cold a document
as the British Case; Warmth or coldness of color is a
matter of taste, in respect of which the United States
have no call to criticise Great Britain, and Great Brit-
ain has no ric-ht to criticise the United States.
We may presume that, in the exercise of its un-
questionable right, the Government of the United
States made up its Case in the aim of convincing the
Arbitrators, and not with any dominant purpose or
special expectation of pleasing Great Britain.
But there is no just cause of exception to the gen-
eral tenor, spirit, or style of the American Case. Its
facts are pertinent ; its reasonings are cogent ; its con-
clusions are logical: and in all that is the true ex-
planation of the emotion it occasioned in England.
32 THE TREATY OF WASHINGTON.
Intelligent people there, on reading the American
Case, then opened their eyes universally to the fact
that Great Britain was ahout to he tried before a hi^h
court constituted by three neutral Governments.
That was not an agreeable subject of reflection. In-
telligent Englishmen also, on reading the American
Case, began to be uneasily conscious of the strength
of the cause of the United States. And that was not
an agreeable subject of reflection. For a good cause,
in a good court, seemed likely to result in a great in-
ternational judgment adverse to England.
The specific objections preferred were quite futile.
Thus, complaint was made because the Case charged
the British Ministers with unfriendliness to the
United States for a certain period of the Civil War.
But the charge was proved by citing the declarations
of those Ministers ; it was not, and could not be de-
nied by any candid Englishman ; it is admitted by
Sir Alexander Cockburn in the dissenting opinion
which he filed at the close of the Arbitration. And
the charge was pertinent, because it explained the
necfliirent acts of subordinate British authorities, as
at Liverpool or Nassau : which acts could not be
otherwise explained unless by suggesting a worse
X imputation, namely, that of hostile insincerity on the
part of the Ministers.
If there be any person at the present day, who is
inclined to call in question the truth of the foregoing
remarks, he is earnestly entreated to read the Amer-
ican Case now, in the light of the adjudged guilt of
the British Government, and he will then see ample
ALABAMA CLAIMS. 33
cause to approve the reason, the dignity, and the tem-
per of that Case.
EXPLANATION OF OBJECTIONS TO THE AMERICAN CASE.
The truth undoubtedly is, that discontent with the
Treaty itself had much to do in England with objec-
tions to the " Case." The British Ministers had ne-
gotiated the Treaty in perfect good faith, and in well-
founded conviction of its wisdom, of the justice of its
provisions, and of its not conflicting with the honor
either of Great Britain or of the United States. Par-
liament had accepted the Treaty without serious op-
position, and with but little debate, except on the
very trivial ixirtif question whether it was more or
less favorable to Great Britain than the conventions
negotiated by Lord Stanley and the Earl of Claren-
don. And Great Britain, as a nation, had, beyond
all peradventure, heartily approved and welcomed
the conclusion of the Treaty.
But, on reading the American Case, and reflecting
on the constitution of the proposed Tribunal, many
Englishmen yielded to a sentiment of undue estimate
oi English law and English lawyers, as distinguished
from the laws and the lawyers of Continental Europe
and of Spanish and Portuguese America. England
has good reason to be proud of her legal institutions
and of her jurists, and, of late years, she has learned
to regard the common law with some abatement of
that fetichisi?i of devotion which was taught by Coke
and by Fortescue. But the statesmen appointed by
the three neutral Governments to act as Arbitrators
C
34 THE TREATY OF WASIIINGTOX.
at Geneva, rjul who, it was clearly seen, would be the
effective judges in the cause, w^ere not likely to share
the English opinion of the common law^ of England.
And these three Arbitrators Avere persons outside of
the range of the observation, knowledge, or apprecia-
tion of most Englishmen, ^vho felt undefined distrust
of men Avhom they did not and could not know as
they knew Englishmen and Americans. Nay, En-
glishmen were heard to say, in conversation, that they
would prefer a tribunal made up of Englishmen and
Americans. We shall fully comprehend how strong
this sentiment Avas amons; avera2;e En^-lishmen, when
we remember that expression was given to it in the
House of Lords by the Marquess of Salisbury, who,
notwithstanding his high intelligence, and the cos-
mopolitan experience which men of his rank possess,
could characterize as unhnowii, and, therefore, as ob-
jectionable, an actual Embassador in France, an ex-
President of Switzerland, and a Senator and ex-Min-
ister of Italy with fome as a jurist and historian per-
vading Europe. It was a sentiment which Sir Alex-
ander Cockburn betrayed in his deportment and
language at several meetings of the Tribunal.
These, however, were but the transitory incidents
of popular emotion and public discussion, and of sec-
ondary significance.
AGITATION RESPECTING THE NATIONAL CLAIMS.
But the agitation which soon followed, on the sub-
ject of certain of the claims set forth in the Case of
th(> United States, arose at once to national impor-
alaba:ma claims. 35
tance. I allude, of course, to what was frequeutly
spoken of as the question of " indirect claims."
The expression is incorrect, and, if admissible as a
popular designation, it must not be permitted to pro-
duce any misconception of the true question at issue.
It would be less inaccurate to speak of them as " claims
for indirect or constructive losses or damages," which
is the more common phrase in the diplomatic papers ;
and less inaccurate still to say " remote or consequen-
tial losses and damages." But, in truth, none of these
expressions are correct, and the use of them has done
much to obscure the actual point of controversy, and
to divert the public mind into devious paths of argu-
ment or conclusion.
When, in the instructions to Mr. Motley of Septem-
ber 25th, 1869, President Grant caused the British
Government to be informed, through the Secretary
of State, of the nature of the grievances of the United
States, he employed the following language :
" The President is not yet prepared to pronounce on the
question of the indemnities which he thinks due by Great
Britain to individual citizens of the United States for the de-
struction of their property by rebel cruisers fitted out in the
ports of Great Britain.
" Nor is he now pre])ared to speak of the reparation which
he thinks due by the British Government for the larger ac-
count of the vast national injuries it has inflicted on the United
States.
"Nor does he attempt now to measure the relative effect of
the various causes of injury, whether by untfmely recognition
of belligerency, by suffering the fitting out of rebel cruisers, or
by the supply of ships, arms, and munitions of war to the Con-
federates, or otherwise, in whatsoever manner.
30 THE TKEATY OF WASHINGTON.
"Nor does it fall witliiii the scope of tliis dispatdi to discuss
the important elianges in the rules of public law, the desirable-
ness of which has been demonstrated by the incidents of the
last few years, now under consideration, and which, ih view of
the maritime prominence of Great Britain and the United
States, it would befit them to mature and projiose to the other
States of Christendom.
"All these are subjects of future consideration, Avhich, when
the time for action shall arrive, the President will consider
with sincere and earnest desire that all differences between
the two nations may be adjusted amicably and compatibly
with the honor of each, and to the promotion of future concord
between them; to which end he will spare no effort within the
range of his supreme duty to the right and interests of the
United States."
The British Government was in this way distinctly
notified that, in addition to the question of indemni-
ties to individual citizens for the destruction of their
property, the United States were entitled to repara-
tion "for the larger account *of the vast national in-
juries" inflicted on them as a Government.
That the British Government so understood the
matter is proved by the tenor of the elaborate respon-
sive paper, styled " Observations," appended to Lord
Clarendon's dispatch to Sir Edward Thornton of the
ensuing November ; and our national claims are spe-
cifically commented on in those ^' Observations."
It is immaterial how these national losses came
afterward to be designated by the title of construct-
ive or indirect ; yet such is the fact.
Now, it is perfectly clear that national claims are
not claims for indirect or constructive loss, any more
than individual claims are. In fact, throughout the
ALABAMA CLAIMS. 37
legal discussions before tlie Tribiiual, tbe Britisli Gov-
ernment steadily maintained that all the claims of in-
dividual citizens for the destruction of their vessels
by Confederate cruisers were in the nature of con-
structive, indirect, remote, and consequential injuries
or losses, and, therefore, not recoverable in law, either
by the rules of the common law of England or of the
civil law as j^racticed on the Continent. Nothing
could more clearly show the inapplicability and
equivocation of the phrase "indirect" claims or losses
to designate any of the contents of the Treaty of
Washington.
Manifestl}^, while private losses are supposable
which may be direct to individual citizens, national
losses are supposable which may be direct to the na-
tion. On the other hand, private losses are supposa-
ble as well as national, which any jurist or any court
would pronounce to be indirect, remote, or consequen-
tial in their nature.
All the discussion on this question asserts or ad-
mits impliedly that the capture of a private mer-
chant's vessel by a Confederate cruiser inflicted direct
loss or damage on the citizen-proprietor. Was not
the loss or damage occasioned by the capture of a
Government vessel equally a case of direct loss to
the Government? Most assuredly.
Pursue the inquiry one step further. If, in a war
carried on by land between two States, one of them
invades the other and devastates the territory there-
of, is not that a case of direct injury to the invaded
8tate ? If the hostilities in question be purely mari-
^ ^
-fV/ f^ r-% -y^ ^
(f a c^ ;j ;)
38 THE TREATY OF 'WAbHINGTOX.
time, as iu the example of the imperfect or quasi war
between the United States and France in the closinoj
years of the Last century, can it be denied that the
injuries done to either nation by such hostilities on
the sea involve direct national as well as private
injuries?
On first impression, therefore, it might seem that
the British Government and British opinion ran wild
in the chase of shadows, and combated a creature of
mere imagination in quarreling with this part of the
American Case at all, and, still more, in contending
that on this account Great Britain could be justified
in revoking the arbitration agreed upon, — that is, in
effect, violating the Treaty.
The Treaty referred to the Tribunal of Arbitration,
in terms unequivocal, all claims of the United States
(jroioing out of the acts committed hy certain vessels,
ami genericaUy hiown as ^^ Alabama Claims.'''' It
might need to go outside of the Treaty into antece-
dent or contemj^oraneous diplomatic correspondence
in order to ascertain the meaning of the phrase ^^ Ala-
bama Claims ;" but, in so doing, it would incontro-
vertibly appear, at every stage of such correspond-
ence, that national as well as individual claims were
comprehended, and were all confounded together, and,
indeed, without mention of individual claims, in the
designation of "claims on the part of the United
States."
Whether any of the claims so preferred on the part
of the United States were for losses indirect or conse-
quential would be an ordinary question of jurispru-
ALABAMA CLAIMS. 39
dence, for tlie decision of tlie Tribunal of Arbitration,
and could not be a question affecting the integrity or
force of the Treaty.
No expression or even intimation of the question of
" direct or indirect" appears on the face of the Treaty.
And, in the long diplomatic correspondence which
ensued on this subject, it was conclusively demon-
strated by Mr. Fish, and was, in effect, admitted by
Lord Granville, that no agreement, promise, or under-
standing existed on the part of the Commissioners to
qualify the clear and explicit language of the Treaty.
CAUSE OF THIS AGITATION.
Hence we mio^ht well infer or believe that the su-
perficial or apparent question, which so agitated peo-
ple of high intelligence and practical sense like the
Eno-lish, was not the real or true one. It was not.
And, in order to understand the causes of the storm
of discussion which broke over England when the
tenor of the American Case came to be fully appre-
hended there, and of the real consternation which
seemed to prevail on the subject, it is necessary to
take into consideration certain facts wholly independ-
ent of the American Case and the Treaty.
On occasion of the rejection by the United States
of the Johnson-Clarendon Treaty, with Mr. Sumner's
speech as a commentary on that act, England came
distinctly to comprehend, what she had been fre-
quently told before but would not believe, that the
United States attributed the prolongation of our Civ-
il War largely to her premature recognition of the
40 THE TREATY OF WASHINGTON.
belligerence of the Confederates, and to the conse-
quent facility of the latter to obtain supplies; and
also, though less so, yet in an aj^preciable degree, to
the naval warfore which the Confederates carried on
against us from the basis of operations of the ports
of Great Britain.
Careful jDerusal of the instructions to Mr. Motley
would have shown that the President of the United
States, while j^ersisting to claim reparation for all in-
juries done by Confederate cruisers, whether to indi-
viduals or to the nation, did not insist on the recog-
nition of belligerence as a continuing subject of claim
of Great Britain.
Conscious of this distinction, while the American
Commissioners would not relinquish claim on account
of any thing done by Confederate cruisers, the British
Commissioners were content with stipulations of in-
demnity, which covered all national claims of the last
category, but did not reach back to claims on account
of the iinreasonal)leness and prematurity of the proc-
lamation of the Queen.
That is what is meant by Mr. Bernard in his lect-
ure at Oxford, where he speaks of the spec/fc char-
acter of the stipulations : they were specific, confined
to acts of the Confederate cruisers. And the point
is clearly evolved in the debate in the House of Lords
on occasion of the presentation of the Treaty, when
Lord Russell objected that it was no better for Great
Britain than the Johnson-Clarendon Treaty, and Lord
Granville replied that it was better, because, while it
includes claims on account of acts of cruisers, it does
ALABA:\rA CLAIMS. 41
not include claims on account of the Queen's proclama-
tion recoo-nizins: tlie belli2:erence of the Confederates.
Nevertheless, when, in England, the argument of
the American Case had been read and pondered, —
when it was perceived that this argument imputed to
Great Britain constructive comiMcity with tlie Con-
federates by reason of the culpable negligence of the
British Government to arrest the enterprises of such
vessels as the Alahcima, the Florida^ and the Shencin-
doali, — and, finally, when it was thus understood that,
in preferring claim for all tlie loss or injury growing-
out of the acts of those cruisers, whether to the Gov-
ernment or to private citizens, the United States did,
in express terms as well as in legal intendment, hold
the British Government responsible for prolongation
of our Civil War and the cost of its prosecution, —
when all these relations of the subject came to be un-
derstood, the public mind in England, and especially
the commercial mind, recurred at once to the event
which constituted at the time the dominant pre-occu-
pation of Europe, namely, the war indemnity of six
milliards so recently imposed by Germany on France.
In view of this, a panic terror seemed to seize upon
London, similar to what occasionally occurs in New
York and other great money centres, producing a
state of demonstrative emotion, which, to calm ob-
servers outside of such centres, looks like the spas-
modic agitation of men who have lost their senses,
rather than intellisfent human action. Such, indeed,
is all panic terror, as exemplified by numerous his-
torical incidents of the contagious influence, both in
42 THE TREATY OF WASHINGTON.
peace and war, of tlie most trivial causes and the
most absurd illusions.
Ou the present occasion, London appears to have
been shaken and tossed by the intense fear of Great
Britain being in turn called upon to pay some indefi-
nite milliards of war indemnity to the United States.
DISCUSSION BETWEEN THE TWO GOVERNMENTS.
The British Government was very slow to take
this infection of popular fear and commotion. The
American Case was duly filed on the 15th of Decem-
ber. Many copies of it were in the hands of the
British Ministers in a few days thereafter. We do
not hear of any particular disturbance of mind on
the part of the Ministers until the beginning of Feb-
ruary, that is, the lapse of six or seven weeks, when
the American Minister, General Schenck, telegraphed
to Mr. Fish as follows: " London journals all demand
that the United States shall withdraw claims for in-
direct damages, as not within intention of treaty.
Ministi'y alarmed^ To which Mi\ Fish responded
by telegraph as follows: "There must be no w^ith'
drawal of any jiart of the claim presented. Counsel
will argue the case as prepared, unless they show to
this Government reasons for a chano;e. The alarm
you speak of does not reach us. We are perfectly
calm and content to await the award, and do not an-
ticipate repudiation of the Treaty by the other side."
And in these two telegrams we have the history of
the whole interval of time prior to the next meeting
of the Tribunal. Newspapers in England lashed
ALABAMA CLAIMS. 43
tliemselves into a "fine frenzy." Ministers and the
Parliament, instead of manfully taking a stand at the
outset in opposition to the popular current of delu-
sion and passion, got alarmed and lost their heads,
and said and did some thino-s not creditable to the
British Government. In the United States, on the
other hand, sundry persons were officiously over-zeal-
ous on the wrong side ; the newspaper press was a
little flustered; and some things were written and
published which it would have been better not to
\v'rite and publish ; but the public mind maintained
its equilibrium, content, on the whole, to await the
progress of the arbitration : while the President, the
Secretary of State, with his colleagues of the Cabinet,
and the Congress, remained " perfectly calm," stand-
ing always on the stipulations of the Treaty, and
never believing it would be broken or disregarded
by Great Britain.
In my opinion, the contrast at this time between
the attitude of the British Government and that of
the American Government deserves a few words of
commentary.
It is not uncommon in England to suppose and to
say that demagog]]^ that is, factious appeal to popular
prejudice and passion, is a conspicuous feature of
political action in the United States. It seems to
be supposed also that demagogy here pleases itself
especially with accusations of Great Britain. Mean-
while, it is complacently assumed that self-possession
and stability, with unexceptional amiability toward
the United States, characterize political action in
44 THE TREATY OF WASHINGTON.
Great Britain. I think tLe absolute reverse of all
this is the truth.
In Great Britain the political institutions of the
country are indefinite, unwritten, unfixed, without a
positive stand-point any where, shifting from day to
day ; consisting, in form, of Kings, Lords, and Com-
mons, without any visible lines of limitation between
them, and resolved to-day into an omnijootent Parlia-
ment, one brancli of which, the House of Commons,
arroirates to itself the character of a constituent na-
tioual convention to impose on King and Lords any
change in the national institutions it sees fit, and as-
suming to itself the function, by means of a quasi
committee of its body, to control absolutely the ad-
ministration, both foreign and domestic, of Great
Britain.
This quasi committee of the House of Commons,
to be sure, has associated wath it another quasi com-
mittee of the House of Lords: which, all together,
formerly called Ministers of the Crown, now take to
themselves, in the very text of treaties as well as in
domestic affairs, the revolutionary title of the " Bi'it-
ish Government."
But, w^hile the theoretical power of the Crown is
nominally exercised b}^ a joint committee of both
Houses of Parliament, it is vested, in ftxct, in the com-
mittee of the House of Commons, wdiich, njoou all oc-
casions, wdiether of ordinary administrative matters
or of the frequently recurring radical changes in the
political institutions of the country, constantly and
loudly defies and overbears the House of Lords.
ALABAMA CLAIMS. 45
If any simple-minded person in the United States
happens to cherish those romantic illusions respect-
ing the constitution of England which he may have
acquired from perusal of the Commentaries of Sir
William Blackstone, he has but to turn over the
leaves of some volume of Hansard's Debates in Par-
liament, or peruse authoritative disquisitions on the
subject, like those of May and of Bagehot, to discover
that, in knowledge and reading at least, he has not
yet emerged from the mytliical epoch of the political
history of England.
Now, the submergence of the power of the Crown
in Parliament, and of that of Parliament in the House
of Commons, and the commitment of all these powers
to transitory nominees of the House of Commons, are
facts which, combined, have produced the result that
government in England is at the mercy of every gust
of popular passion, every storm of misdirected public
opinion, every devious impulse of demagogic agita-
tion, — nothing correspondent to Avhich exists in the
United States.
Mr. Gladstone is Prime Minister of Great Britain,
— that is to say, of three hundred millions of men, ag-
gregated into various States of Europe, Africa, Amer-
ica, Asia, and Australasia. But he holds all this pow-
er at the mere will of a majority of the House of Com-
mons. He must consult their wishes and their j^rej-
udices in every act of his political life. If he con-
ceives a great idea, he can not make any thing of it '
until after he shall have driven it into the heads of
three or four hundred country gentlemen, which are
46 THE TREATY OF WASIIINGTOX.
not always easily imforahle either by eloquence or
by reason. And during the progress of all great
measures, including esj^ecially foreign negotiations,
which require to be left undisturbed in their prog-
ress from germination to maturity, he is subject to be
goaded almost to madness every day by vicious in-
terpellations, not only on the part of members of the
Opposition, but even his own supporters in the House
of Commons.
How different is the spectacle of government in
the United States ! Here, the President, — that is, the
Prime Minister of the sovereign people, — is placed in
power for a fixed period of time, during which he is
politically independent of fiiction, and can look at the
temporary passions of the hour with calmness, so as
to judge them at their true value, and accept or reject
their voice according to the dictates of public duty
and the command of his conscience. Neither he nor
any of the members of his Cabinet are su1)ject to be
badgered by factious or unreasonable personal inter-
ro2;ation in either house of Con ogress.
Moreover, the House of Representatives does not
presume to set itself up as tlie superior either of the
President or of the Senate. Nor is the Senate in the
condition of beino; terrified from the discharire of its
duty by threats on the part of the President or of the
House of Representatives to subjugate its free will at
any moment by thrusting into it a batch of twenty
new administration Senators. Least of all does the
House of Representatives presume to possess and ex-
ercise the powers of a constituent national convention,
ALABAIHA CLAIMS. 47
to chano-e in its discretion the constitution of the
United States.
Thus it was that, in the matter of the discussion of
this Treaty, Mr. GLadstone and the other Ministers
were tossed to and fro on the surging waves of pub-
lic opinion, and pestered from day to day in Parlia-
ment, while solicitously engaged in reflecting how
best to keep faith with the United States and at the
same time do no prejudice to Great Britain. If, at
that period, the Ministers said in debate any thing
unwise, any thing not strictly true or just, — Mr. Glad-
stone did, but Lord Granville did not, — let it not be
remembered against them personally, but charged to
the uncontrollable difliculties of their position, and the
siofnal defectiveness and intrinsic weakness of the or-
ganic institutions of Great Britain.
During all that period of earnest discussion on both
sides of the ocean, it was to me, as an American,
matter of the highest thankfulness and gratulation
and patriotic pride, to see the Government of the
United States, — President, Secretary of State, Cabinet,
Congress, — continue in the even tenor of their jDublic
duty, calm, unruffled, self-possessed, as the stars in
heaven. The Executive of the United States is, it is
true, by its very nature, a thoughtful and self con-
tained power. Congress, on the other hand, is the
field of debate and the place Avhere popular passions
come into evidence, as the winds in the cave of ^olus.
But, on this occasion, no more debate occurred in
either House than that least possible expression of
opinion, which was necessary to show accord witli the
48 THE TREATY OF WASHINGTON.
Executive. Even the Opposition, to its honor be it
said, conducted itself with commendable reserve and
consideration. How different from all this was the
spectacle exhibited by the British Parliament!
ENGLISH MISCONCEPTION OF AMERICAN SENTIMENT.
I contradict, with equal positiveness, the suggestion
that dema2:oo;ic acfitation in the United States feeds
itself largely on alleged hatred of Great Britain. I
think topics of international reproach are more com-
mon in England than here. The steady current of
emigration from England, Scotland, and Ireland to
the United States, and especially at the present time
from England, is not a grateful subject of contempla-
tion in Great Britain. England perceives, but not
with perfect contentedness, that the British race in
America bids fair soon to exceed in numbers and in
powder the British race in Europe. And, above all,
the gradually increasing force of those factions or
parties in Great Britain, which demand progressive
enlargement of the basis of suffrage, equal distribu-
tion of representation, vote by ballot, the separation
of Church and State, subdivision of the great prop-
erties in land, cessation of hereditary judicial and po-
litical power, intellectual and social elevation of the
disinherited classes, — I say such parties or fiictions, in
appealing to the institutions of the United States as
a model, provoke criticism of those institutions on the
part of the existing depositaries of property and polit-
ical power. Owing to these, and other causes which
might be indicated, it seems to me that the United
ALABAMA CLAIMS. 49
States encounter more criticism in Great Britain than
Great Britain does in the United States.
Moreover, it should be borne in mind that much of
the inculpation of Great Britain Avhich is perceived in
the United States proceeds from British immigrants, —
largely Irish, but in part Scottish and English, — who,
like other Europeans, are but too prone to come here
with all their native political prejudices clinging to
them; who not seldom hate the Government of their
native land ; and who, of course, need time to cease to
be Europeans in spirit and to become simply Amer-
icans. And it would not be without interest in this
relation to see how many of such persons, in the news-
paper press or elsewhere, say or do things tending to
cause it to be supposed that opinion in the United
States is hostile to Great Britain.
There is one other class of facts which it is proper
to state in this relation, and particularly proper for
me to state.
The successful revolution of the thirteen Colonies
Avas an event most unacceptable, of course, to England.
"We, the victors in that contest, should not murmur if
resentful memories thereof lingered for some time in
the breasts of the defeated party. I think, however,
such feelinsfs have ceased to manifest themselves in
England. It is to quite other causes, in my opinion,
that we are to attribute the successive controversies
between the two countries, in which, as it seems to
me, the greater wrong has in each case been on the
side of England. I think we did not afford her suffi-
cient cause of complaint for continuing in hostile oc-
D
50 THE TREATY OF \YASIIINGTOX.
cupatiou of tlie Nortliwestern Territory for so many
years after we liad made peace. I tliink she was
wroDs; in issiiino; tlie notorious Orders in Council, and
in the visitation of our ships and impressment of our
seamen, which morally constrained us, after exhaust-
ing all other means of redress, to have recourse to
war. I think she was wroucj in contendino: that that
war extinguished the rights of coast fishery assured
to us by the Treaty of Independence. I think she
was wrong in the controversy on the subject of colo-
nial trade, which attained so much prominence during
the Presidency of John Quincy Adams. I think she
was wrong in attempting to set up the fictitious Mos-
quito Kingdom in Central America. I think she was
wrong in the so-called San Juan Question. And so
of other subjects of difference between the two Gov-
ernments.
Now, it has happened to me, in the course of a long
public life, to be called on to deal officially, either in
Congress, in the Cabinet, or at the Bar, with many of
these points of controversy between the two Govern-
ments, of which it suffices to mention for example
three, namely : 1, the Question of British Enlistments ;
2, the Hudson's Bay Company ; and 3, the Alabama
Claims.
In regard to the first of these questions, the United
States, and the persons who administered the Govern-
ment, were so clearly right that, although the British
Government, in its Case, improvidently brought into
controversy at Geneva, by way of counter-accusation,
the general conduct of the United States during the
ALABAMA CLAIMS. ' 51
war between Great Britain and Russia, iiud altliougli
we replied by charging in response that tlie only vio-
lations of neutrality committed in tlie United States
during that war were committed by Great Britain
herself, yet in the subsequent discussions not a word
of self - j Listification on this point was preferred by
the British Government.
In regard to the second of the questions, a member
of Parliament [Mr. Hughes], in ignorance of the facts,
it is to be presumed, undertook to impugn the con-
duct of the Counsel of the United States, and to draw
inferences therefrom prejudicial to the conduct of the
United States in the Arbitration at Geneva. In re-
sponse to this complaint, it suffices to say that, on oc-
casion of a settlement of the claims of the Hudson's
Bay Company and of its shadow, the Puget's Sound
Agricultural Company, by mixed commission, under
the treaty of July, 1863, it devolved on me, in behalf
of the United States, to assert, and to prove to the
satisfaction of the Commission, that the pretensions of
the Pludson's Bay Company were scandalously un-
just, and founded on premises of exaggeration and
usurpation injurious to Great Britain and to the Ca-
nadian Dominion, as well as to the United States.
I have no reason to regret or qualify any thing said
or done by me in that affair.
As to the third of these questions, namely, the Ala-
hama Claims, it seems difficult to comprehend how
persistent demand of redress on the part of the United
States can be complained of by any candid English-
man noii\ when the judgment of the Tribunal of Ar-
52 THE TREATY OF -WASHINGTON.
bitration establishes the fiict of the long denial of jus-
tice by Great Britain in this behalf, — a fact admitted
also by so prejudiced a person as Sir Alexander Cock-
burn, who speaks as [" in some sense " at least] " the
representative of Great Britain."
I confidently maintain, therefore, that neither the
British Government nor the people of Great Bi'itain
had any just cause, in the course of these transactions,
to find fault with the sj^irit, temper, or language either
of the Government or the Anient or Counsel of the
United States. To the contrary of this, it seems to
me that on our side alone is the good cause of com-
plaint in these respects.
ATTITUDE OF THE AMERICAN GOVERNMENT.
As respects the deportment of the two Governments
in this crisis, certain it is that the conduct of that of
Great Britain, in resting upon the American Case for
nearly seven weeks, and then abruptly breaking out,
in the Queen's speech from the throne and in debate
in Parliament, with objections to that Case, without
previous statement thereof in diplomatic communica-
tion, was iincourteous toward the United States.
The diplomatic discussion which ensued, beginning
with Lord Granville's note of February 3, 1872, and
terminating with the dispatch of Mr. Fish of April IG,
1872, may now be read, not with composure only, but
with supreme satisfaction, by any citizen of the United
States. The Secretary of State [Mr. Fish] demon-
strates to conviction the utter baselessness of the pre-
tension of the British Government that the so-called
ALABAMA CLAIMS. 53
indirect claims were not witliin the Jetter or spirit of
the Treaty of Washington. And he repels through-
out, peremptorily but dispassionately, the call of the
British Government on the United States to withdraw
this class of claims from the consideration of the Tri-
bunal. In fine, the position of the United States is
plainly expressed in difterent ^^arts of the disjDatches
of Mr. Fish, as follows :
"They [the United States] desire to maintain the jurisdiction
of the Tribunal of Arbitration over all the unsettled claims, in
order that, being judicially decided, and the questions of law
involved therein being adjudicated, all questions connected
with or arising out of the Alabama Claims, or ' growing out of
the acts ' of the cruisers, may be forever removed from the pos-
sibility of disturbing the perfect harmony of relations between
the two countries. ...
" What the rights, duties, and true interests of both the con-
tending nations, and of all nations, demand shall be the extent,
and the measure of liability and damages under the Treaty, is
a matter for the supreme determination of the Tribunal estab-
lished thereby.
" Should that august Tribunal decide that a State is not lia-
ble for the indirect or consequential results of an accidental or
unintentional violation of its neutral obligations, the United
States will unhesitatingly accept the decision. •
" Should it, on the other hand, decide that Great Britain is
liable to this Government for such consequential results, they
have that full faith in British observance of its engagements to
expect a compliance with the judgment of the Tribunal, which
a solemn Treaty between the two Powers has created in order
to remove and adjust all complaints and claims on the part of
the United States."
The American Government could not avoid feeling
that the public discussion, which the British Minis-
ters had seen fit to excite, (ji*, at any rate, to aggravate,
54 THE TREATY OF WASHINGTON.
and "tlie discourteous tone and minatory intimations
of the Ministry," imposed on the United States a dif-
ferent line of action from tliat, wliicb might liave been
adopted by them in response to a calm presentation
by the British Government of its construction of the
Treaty.
In this relation there is another class of facts which,
as it seems to me, deserves mention.
Of the five American Commissioliers encracfed in
O O
the negotiation of the Treaty of Washington, two,
the Secretary of State [Mr. Fish] and our Minister
at London [General Schenck], were officially occu-
pied in discussing the question on the American Case
raised by the British Government, The published
dispatches show with wdiat signal ability tliey dis-
charged this delicate duty. Mean\vliile, the three
other Commissioners, Mr. Justice Nelson, Mr. Hoar,
and Mr. Williams, although implkdly accused on the
other side of taking some advantage of the unsophis-
ticated innocence and simplicity of the British Com-
missioners, yet maintained perfect self-control in tlie
matter, speaking only when officially called upon to
speak, and otherwise leaving the subject where it be-
loncjed, — in the hands of their Government.
The conduct, on the other hand, of some of the
British Commissioners was less reserved than that of
the American Commissioners. Professor Bernard got
completely off the track of reason and sense in a lect-
ure w^hicli he delivered at Oxford. Sir Stafford
Northcote let off a very inconsiderate speech .at Ex-
eter. And Sir Edward TJiornton made a not veiy
ALABAMA CLAIMS. 55
considerate one at New York. But Earl cle Grey
and Ripon, who had now "become Marquess of Ripon,
deported himself with admirable dignity. It was, in-
deed, wittily said, or reported to have been said, by
Mr. Lowe, that Lord Ripon was going about very sick
at the stomach of a marquisate, which he would be
glad to throw up ; but the reproach was wholly un-
deserved. Lord Ripon manfully maintained silence
while to speak would have been unwise; when at
length it became expedient to speak, he did so with
discretion and with judiciousness, beyond what ap-
peared in the speeches of some other members of the
Government.
ACTION OF THE AMERICAN AG.ENT AND COUNSEL.
Whilst all these discussions were going on in Great
Britain and the United States, we, the Agent and
Counsel of the United. States, were busily occupied,
partly at Washington but chiefly at Paris, in the
study of the British Case and the preparation of the
American Counter-Case. We had fixed on Paris for
our head-quarters, as a neutral city, as a great centre
of international jurisprudence and diplomacy, and as
a place in easy communication with London and with
Washington.
From this ground of vantage we could observe
and estimate correctly the current of discussion in
America, in Great Britain, and on the Continent of
Europe.
Speaking for myself, at least, let me say, it appear-
ed to me that much of what was being said in En-
56 THE TREATY OF WASHINGTON.
glantl, wlietLer in Parliament or in tlie Press, was un-
seasonable or indiscreet; mucli of it factious toward
the Britisli Government itself; mucli of it disrespect-
ful to the American Government ; but none of it of
any ultimate importance or consequence in regard to
either Government, for the following reasons :
1. Both Governments sincerely desired peace. Great
Britain could never have retreated from the Arbitra-
tion in violation of the Treaty, whatever the Press
might say, and whoever should be in power as Min-
ister.
2. Freedom of debate is essential to freedom of in-
stitutions. To be sure, the Press in Great Britain,
and somewhat, but less so, in the United States, is
prone to take upon itself rather lofty airs, and to
speak of public aftairs quite absolutely, as if it were
the Government. But nobody is deceived by this,
not even the Press itself We, the English-speaking
nations, thank heaven, possess the capability of living
in the atmosphere of oral and written debate. It was
safe to predict that howmuchsoever Mr. Gladstone
and Lord Granville might feel annoyed by the din
of words around them, it would not induce them to
break faith with the United States.
3. It was not the voice of the English Press which
could seriously affect us. We looked rather to the
state of opinion in the French, German, and Italian
speaking countries of Europe, which, on the whole,
though differing as to the legal right of the United
States to recover on the national claims, yet decisive-
ly agreed with us in affirming that those claims ^vere
ALABAMA CLAIMS. 57
comprehended witliiu tlie scope of the Treaty as main-
taiued by the United States.
■ What Europe dreaded, what all European opinion
sought to prevent, was a mipture between Great Brit-
ain and the United States, to disturb the money-
market of Europe, and impede the j^ayment by France
of the indemnity due to Germany. And all men saw
that the United States must and would resent the
refusal by Great Britain to observe the stipulations
of the Treaty of Washington.
PRESEXTATIOX OF COUNTER-CASES.
Such were the circumstances, in the presence of
which arrived the time, namely, the 15th of April, at
which the two Governments were to file at Geneva
their respective Counter-Cases.
The British Government was so solicitous to fulfill
on its j)art all the stipulations of the Treaty, that it
caused special inquiry to be made whether the Amer-
ican Government had any objection to Great Brit-
ain filing her Counter-Case without prejudice to her
position regarding consequential damages; to which
Mr. Fish replied that the British Government was
bound to file its Counter-Case, but its doing so
would not prejudice any position it had taken, nor
affect any position of the United States.
Accordingly, on the 15th of April, the Counter-
Cases of Great Britain and the United States were
duly filed, with express reservation of all the rights
of both Governments.
The Britisli Counter-Case, consistiuiz of four vol-
58 THE TREATY OF "WASHINGTON.
iiniGS folio, contains little new matter, being in part,
at least, defensive argument in response to the Amer-
ican " Case."
The American Counter-Case, consisting of two
volumes folio, replies argumeiltatively to the British
" Case," and brings forward a large body of docu-
mentary proofs, responsive to matters contained in
that " Case," which, although utterly foreign to the
question at issue, required to be met, because con-
sidered material by Great Britain, namely, allegations
of default on the part of the United States in the
execution of their own neutrality laws, to the preju-
dice of other Governments.
The introduction of all this matter into the British
Case, the iteration of it in the British Counter-Case
and the British Argument, and the extreme promi-
nence given to it, as we shall hereafter see, by the
British Arbitrator, serve to illustrate the singular
unreasonableness and injustice of the angry com-
plaints emitted in England against the American
Case.
The American Case contains no suir2;estion which
is not strictly pertinent to the issues raised by the
Treaty. It discusses the conduct of the British Gov-
ernment relatively to the United States during our
Civil War, with strict application to the ^^Alahama
Claims." It charges that, in those transactions, the
British Government was guilty of culpable omission
to observe the requirements of the law of nations as
respects the United States, and with responsible neg-
ligence in the non-execution of the neutrality laws of
ALABAMA CLAIMS. 59
Great Britain. That was the very question present-
ed by tlie Treaty.
Great Britain professed to be so mucli offended by
the character of certain of the proofs adduced in the
American Case, — rigorously pertinent to the question
as all those "proofs were, — that she would not suffer
any apjiropriate answer to those proofs to be brought
forward in her Counter-Case or in her Argument : it
w^as not compatible with self-respect, — it would be
giving dignity to undignified arguments, — we were
told by the British Press. Meanwhile, the very mat-
ter which the British Government could not conde-
scend to notice was both material and important to
such a degree as very much to inflame the temper and
exercise the ingenuity of Sir Alexander Cockburn,
the "representative" of Great Britain at Geneva.
No^y^il^American Case, if conceived in any other
spirit than that of just and fair exposition of the pre-
cise issue, — qu_^tionjthat is, whether the British Gov-
ernment had or had not incurred responsibility for
its want of due dilisjence in the matter of Confederate
cruisers fitted out in the ]3orts of Great Britain, — I
say, if the American Government, in the preparation
of its Case, had not been animated by the spirit of
perfect fairness and justness, it migld have gone into
the inquiry of the political conduct of Great Britain
in other times, and with reference to other nations, in
the view of imputing to her habitual disregard of the
law of nations in illustration of her present conduct
toward the United States. We might have charged
that, while her statesmen contend that they could do
^ CO THE TREATY OF WASHINGTON.
notliing outside of an Act of Parliament, tliey Lad no
sucli Act until 1819, and were therefore, prior to that
time, confessedly impotent, and w^e might have added
willfully so, to observe the duties of neutrality ; we
might have scrutinized her national history to select
conspicuous examples of her acts of violence, in dis-
reo-ard of the law of nations, a2;ainst numerous States,
including ourselves; we might have appealed to ev-
ery volume of international law in existence, from the
time of Grotius to this day, and cited page after page
to the conclusion of the imjust international policy
of Great Britain ; and we might have argued from all
this to infer intentional omission of the British Gov-
ernment to prevent the escape of the Alahama and
the Florida.
But such arguments, you will sa}^, would have been
forced, remote, of doubtful relevance, and of a nature
oifensive to England. Be it so : they would, if you
please, have been irrelevant, impertinent, offensive.
And no such arguments are found in the American
Case.
But such are the arguments which pervade the
British Case, Counter- Case, and Argument, and the
opinions of the British member of the Tribunal. In-
stead of defending its own conduct in the matter
at issue, the British Government travels out of the
record to find fault with the conduct of the United
States at other times, and wdth respect to other na-
tions. It presumes to take upon itself the function
of personating Spain, Portugal, Nicaragua, and to drag
before the Tribunal at Geneva controversies between
ALABAMA CLAIMS. 61
US and other States, with which that Tribunal had
no possible concern, — which it could not pretend to
judge, — and of such obvious irrelevancy and imj^erti-
nence that not one of the Arbitrators condescended
to notice them except Sir Alexander Cockburn.
The presentation in the British Case of considera-
tions of this order, worthless and absurd as argu-
ment, and wantonly offensive to the United States,
w^as, in my judgment, an outrageous act, compared
with which, in possible susceptibility of blame, there
is nothing to be found in any of the affirmative doc-
uments presented by the American Government.
It was the cause of a singularly perverse incident,
namely, complaint of the British Press against the
American Argument for imputed miMnchiess in al-
luding to subjects, which had been forced upon our
attention by the British Case.
I mention these circumstances for the purpose of
showing how relatively unjust it was to impute of-
fensiveness of spirit and language to the American
Case in view of the much more objectionable thino^s
in the British Case ; and for the further purpose of
pertinently stating that it was undignified for Great
Britain to complain of the manner in which the Agent
or Counsel of the United States mio:ht see fit to ar-
gue our cause, as it would be for the American Gov-
ernment to undertake to prescribe limits of discre-
tion in this respect to the Agent or Counsel of Great
Britain.
Thus, the 15th of April, looked forward to with so
much ai:)parent dread by the British Government,
62 THE TREATY OF WASHINGTON.
•passed away, leaving the great question unsettled, in
what manner ultimately to deal with the claim for
rational losses preferred by the United States.
NEGOTIATIONS FOR A SUPPLEMENTAL TREATY.
A new series of events then happened, which occu-
pied the period intervening between the 15th of April
and the 15th of June.
It occurred to the two Governments that the diffi-
culty might be disposed of by the exchange of diplo-
matic notes, w'hich, in laying down a definite rule of
reciprocal international right on the subject of such
losses, should reserve or leave unimpaired the present
pretensions of l)oth Governments. The British Gov-
ernment would not admit that it w\as the intention
of the Treaty to cover national losses; the United
States insisted that it was, and refused to do any act
incompatible with this construction of the Treaty;
and, therefore, they would not withdraw any part of
the American Case, nor disavow the opinion that it
was within the province of the Arbitrators to consid-
er all the claims, and to determine the liability of
Great Britain for all the claims, which had been put
forward by the United States. But the American
Government had not asked for pecuniary damages in
its "Case" on account of that part of the claims called
the indirect losses; it only desired a judgment there-
on, whicli would remove them for all future time as a
cause of difference between the two Governments.
To hold that this class of claims was not disposed of
by the Treaty, — that is, Avas not a subject for the con-
ALABAMA CLAIMS. G3
sideration of the Tribunal of Arbitration, — was to infer
that they remained open and unadjusted, and suscep-
tible of being hereafter brought forward anew by the
United States as an object of reclamation against
Great Britain. One great inducement to the Treaty
would thus be defeated, namely, the establishment of
perfect concord and peace. In view of which it w^as
thought expedient to endeavor to adjust the present
dispute by informal stipulations on the part of the
two Governments.
This well-intentioned effort fiiiled, because of the
persistent contention of the British Government that
the Treaty excluded from the Arbitration the claims
for national losses advanced by the United States.
Further reflection on the subject satisfied the Amer-
ican Government that nothing short of a new treaty
could dispose of the question on the premises of the
pending negotiation, it being clear that the President
of the United States could not of himself withdraiv
claims which were in his opinion justified by tlie
Treaty of Washington.
Thereupon the President requested of the Senate
an expression of their disposition in regard to advis-
ing and consenting to the formal adoption of an arti-
cle of treaty proposed by the British Government, to
the effect of stipulating that he would make no claim
on the part of the United States in respect of the so-
called indirect losses before the Tribunal of Arbitra-
tion, in consideration of an agreement between the
two Governments, the essence of which was set forth
in a preamble to the eftect that
G4 THE TREATY OF WASHINGTON.
"Such indirect claims as those for national losses stated in
the Case presented on tlie jtart ofthe Government of the United
States . . . should not be admitted in principle as growing out
of the acts committed by particular vessels, alleged to have
been enabled to commit depredations on the shipping of a bel-
ligerent by reason of such Avant of due diligence in the jjer-
formance of neutral obligations as that which is imputed by the
United States to Great Britain :"
wliicli proposed agreement the preamble proceeds to
state, iu the form of two separate dedarations, — one
by Great Britain and one by the' United States, —
each of them intelligible only by reference to pre-
vious parts of the preamble : the whole to the con-
clusion that the President shall make no claim, on
the part of the United States, in respect of the indi-
rect claims as aforesaid, before the Tribunal of Arbi-
tration at Geneva.
The Senate, thinking that the recitals in the pre-
amble were not sufficiently exjilicit to furnish to the
United States satisfactory basis of transaction, pro-
posed the following substitute :
" Whereas both Governments adopt for the future the prin-
ciple that claims for remote or indirect losses should not be
admitted as the result of failure to observe neutral obligations,
so far as to declare that it will hereafter guide the conduct of
both Governments in their relations with each other. Now,
therefore," etc.
But the Senate's redaction of the article rendered
its meaninc: too clear to be a2:reeable to the British
Government, which, as was shrewdly said of it in
Paris at the time, doubted whether release from claim
of reparation for the present wrong done by Great
ALABAMA CLAIMS. 65
Britain to the United States might not be purchased
too dearly by conceding to the United States, in con-
sideration thereof, indefinite and unlimited exemption
from responsibility for wrongs of the same nature to
be inflicted in all future time by the United States
on Great Britain.
Further interchange of dispatches on this subject
followed, the British Government insisting on modifi-
cation of the terms of arrangement proposed by the
Senate.
But Congress had now adjourned. The 15th of
June was impending, on which day the United States
must of necessity present their final argument or lose
their hold on the Treaty. If, at the commencement
of the difficulty, the British Government had proposed
to the American Government to agree to postpone
the proceedings of the Tribunal and take time for
negotiation in the usual way, a new treaty might
have been concluded as contemplated by the two
Governments. Such a treaty, requiring careful con-
sideration of phraseology, with discussion and expla-
nations regarding the same, could not be concluded
in haste by means of telegraphic communication be-
tween London and Washington.
The spectacle exhibited by the two Governments
at this time was one of profound interest to the whole
world. They were inspired by friendly sentiments on
each side. They differed ia regard to the construction
of a treaty which neither desired to break. Diplo-
matic correspondence had failed to bring them into
concord of opinion. They endeavored to reconcile
E
C6 THE TREATY OF WASHINGTON.
this difference by sui:)plemental treaty. Only a few
weeks remained in wliicli to negotiate; and th6
parties were separated by thousands of miles of
ocean. It was necessary, therefore, to 'negotiate, if at
all, by telegraph, — an operation quite as novel as had
been that of conducting the business of government
in France by means of pigeons or balloons during the
siege of Paris. But, before it was possible for the
parties to conclude a treaty by telegraph, the fatal
day arrived, greatly to the embarrassment of the
British Government.
PRESENTATION OF ARGUMENTS FOR THE UNITED STATES.
For the course of the United States in this exigen*
cy was plain before them : it was to present their
final Argument to the Tribunal of Arbitration, in con-
formity with their own conception of their rights, just
as if there were no controversy on the point between
them and Great Britain.
The President of the United States was immova-
bly fixed in the pui'pose not to withdi'aw the contro-
verted claims, nor to abstain from making claim be-
fore the Tribunal in respect to the so-called indirect
losses, except in consideration of a new treaty i-egard-
ing the same, satisfactory to himself and to the Senate
of the United States.
In a dispatch of the Secretary of State to the Min-
ister at London, of the 28th of May, 1872, the induce-
ment and object of the United States, in persisting to
retain these claims before the Tribunal, are summa-
rily stated as follows :
ALABAMA CLAIMS. 67
1. " The right under the Treaty to present them.
2. "To have them disposed of and removed from further con-
troversy.
3. "To obtain a decision cither for or against the liability of
a neutral for claims of that description.
4. " If the liability of a neutral for such claims is admitted
in the future, then to insist on payment by Great Britain for
those of the past.
5. "Having a case against Great Britain to have the same
principle applied to it that may in the future be invoked against
the United States."
Of these considerations, the last four, it is obvious,
are the complete justification of the insertion of our
national claims in the Treaty and of their presenta-
tion in the " Case."
Hence the duty of the Agent and Counsel of the
United States, having charge of the judicial investi-
gation pending before the Tribunal of Arbitration,
remained the same in the interval between December
15th, 1871, and June 15th, 1872, whatever diplomatic
discussions or negotiations might be going on between
the two Governments. Our instructions were defi-
nite and peremptory, as the British Government well
understood, to prepare the Counter-Case for the Unit-
ed States, and the final Argument, on the premises
of the Treaty as construed by the United States and
as explained in the American Case. Our Counter-
Case was prepared accordingly, as already stated, and
filed in Enirlish and in French before the Tribunal.
And in like manner we prepared our final Argument.
This Argument, consisting of an octavo volume of
495 pages, after discussing fully the various questions
of fact and of law involved in the submission to arbi-
68 THE TREATY OF WASHINGTON.
tration, proceeds to examine the particular claims, na-
tional as well as indiviJual, — to maintain the jurisdic-
tion of the Tribunal over both classes of claims, — and
to argue the nature and degree of the responsibility
of Great Britain to the United States in the premises.
In tine, the Argument is co-extensive with the " Case."
We repaired to Geneva in due time, and at the
meeting of the Tribunal on the 15th we presented
our Argument as required by the Treaty, and, for the
better information of the Tribunal, in French as W' ell
as in English. That is to say, the Government of
the United States, through the means of its official
Agent, complied with that last command of the Trea-
ty of Washington, in virtue of which the Tribunal of
Arbitration became formally seized and possessed of
all our claims, national as well as private, precisely as
if no controversy on the subject existed between the
two Governments. The United States were in condi-
tion to invoke the judgment of the Tribunal, whether
Great Britain appeared or not ; for Counsel had am-
ple authority of legal doctrine at hand to show that
the Tribunal would have power to act even in the
absence of Great Britain.
In the anticipation of this contingency, the British
Government requested that of the United States to
concur in making a joint api)lication to the Tribunal
for an adjournment of eight months, in order to afford
to the two Governments sufficient time for further
negotiation. Mr. Fish replied that the Government
of the United States had no reason to desire such ad-
journment, although the Government intended, and
ALABAMA CLAIMS. 69
instructed its Agent, to assent to a inotion for ad-
journment on the 23art of Great Britain, provided the
British Argument were filed in good faith, without
oftensive notice, or other objectionable accompani-
ment. «
Thus it became necessary for the British Govern-
ment to decide for itself how to act in the premises.
The course adopted by it was to withhold its Argu-
ment, and to file a statement, setting forth the recent
negotiations for the solution of the difficulty between
the two Governments, and the hope that, if time were
afforded, such a solution might be found practicable ;
and thereupon to move an adjournment of eight
months, with reserve of all rights in the event of an
agreement not being finally arrived at, as expressed in
the note which accompanied the British Counter-Case.
DECISION OF THE AEBITRATORS RESPECTING NATIONAL
LOSSES.
These acts having been performed, the Arbitrators
adjourned, first to the 17th, and then to the 19th of
June, in order to afford time for reflection to them-
selves and to the tw£)-Grovernments.
It will be taken for granted that in the interval be-
tween the 15th and the 19th of June communications
by telegraph passed between the respective Agents
and their Governments, and consultations took place
between the Counsel of both sides and the respective
Agents, either orally or in writing, and, with more or
less formality, among the Arbitrators, the result of
which was announced by Count Sclopis as follows:
70 THE TREATY OF WASHINGTON.
"The Arbitrators do not propose to express or imply any
opinion npon the point thus in tlitference between the two
Governments as to the interpretation or eftect of tlic Treaty,
but it seems to them obvious that the substantial object of
the adjournment must be to give the two Governments an op-
portunity of detei-miiiing whether the claims in question shall
vr shall not be submitted to the decision of the Arbitrators,
and that any difference between the two Governments on this
point may make the adjournment unj)roductive of any useful
effect, and, after a delay of many months, during which both
nations may be kept in a state of painful suspense, may end in
a result which it is to be presumed both Governments would
equally deplore, that of making this arbitration Avholly abor-
tive. This being so, the Arbitrators think it right to state
that, after the most careful pevnsal of all that has been urged -
on the part of the Government of the United States in respect
of these claims, they have arrived, individually and^cojlective-
ly, at the conclusion that these claims do not constitute, npon_
the principles of international law applicable to such caa
good foundation for an award of compensation or computation
of damages between nations; and should, upon such princi-
ples, be wholly excluded from the consideration of the Tribu-
nal in making its award, even if there were no disagreement
between the two Governments as to the competency of the
Tribunal to decide thereon. With a view to the settlement
of the other claims, to the consideration of which by the Tri-
bunal no exception has been taken on the part of Her Britan-
nic Majesty's Government, the Arbitrators have thought it de-
sirable to lay before the parties this expression of the views
they have formed upon the question of public law involved, in
order that, after this declaration by the Tribunal, it may be
considered by the Government of the United States whether
any course can be adoj^ted respecting the first -mentioned
claims which Mould relieve the Tribunal from the necessity of
deciding upon the present aj)plication of Her Britannic Maj-
esty's Government."
Count Sclo2:)is added that it was tlie intention of
tlie Tribunal that this statement should be consid-
ALABAMA CLAIMS. 71
ered for tlie present to be confidential, — that is, sub-
ject to tlie discretion of either of the two Govern-
ments.
But what is the " question of public law involved ?"
Is it the question of claim for indirect or consequen-
tial damages, as argued by the British Government 1
By no means.
Observe, no suggestion of any distinction between
direct and indirect claims is to be found in the decla-
ration of the Arbitrators. And their declaration can
not be explained by reference to any such order of
ideas.
The significant words are: "These claims do not
constitute, upon the principles of international law
applicable to such cases, good foundation for an award
of compensation or computation of damages between
nations."
Why do they not? Because they are indirect?
Because they are consequential? No such objection
is intimated.
But although, in making this declaration, a mere
conclusion of mind, the Arbitrators abstained at the
time from assigning any reasons for such conclusion,
yet they supplied this omission subsequently, as we
shall plainly see when we come to review the e?isem-
hie of all the, acts of the Tribunal. We shall then be
able to appreciate the importance and value of this
declaration to the United States.
The Counsel of the United States advised the ac-
ceptance of this declaration by the Government, as
follows: . . •
72 THE TREATY OF WASHINGTON.
" Wc arc of opinion that the announcement tliis day made
by tlie Tribunal must he received by the United States as de-
terminative of its judgment on the question of public hiw in-
volved, as to which the United States have insisted on taking
the opinion of the Tribunal. We advise, therefore, that it
should be submitted to, as precluding the propriety of further
insisting upon the claims covered by this declaration of the
Tribunal, and that the United States, with a view of maintain-
ino- the due course of the arbitration on the other claims with-
out adjournment, should announce to the Tribunal that the
said claims covered by its opinion will not be further insisted
upon before the Tribunal by the United States, and may be
excluded from all consideration by the Tribunal in making its
award."
Ill response, the Secretary of State communicated
the determination of tlie President, as follows :
" I have laid your telegrams before the President, who di-
rects me to say that he accepts the declaration of the Tribunal
as its judgment upon a question of public law, which he had
felt that the interests of both Governments required should
be decided, and for the determination of which he had felt it
important to present the claims referred to for the purpose of
taking the opinion of the Tribunal.
"Tliis is the attainment of an end which this Government
had in view in the putting forth of those claims. We had no
desire for a pecuniary award, but desired an exj^ression by the
Tribunal as to the liability of a neutral for claims of that char-
acter. The President, therefore, further accepts the opinion
and advice of the Counsel as set forth above, and authorizes
the announcement to the Tribunal that he accepts their decla-
ration as determinative of their judgment upon the important
question of public law as to which he had felt it his duty to
seek the expression of their opinion ; and that, in accordance
with such judgment and opinion, from henceforth he regards
the claims set forth in the Case presented on the part of the
United States for loss in the transfer of the American commer-
cial marine to the British flag, the enhanced payment of insur-
ance, and the prolongation of the war, and the addition of a
ALABAMA CLAIMS. 73
large sum to the cost of the war and the suppression of the
Rebellion, as adjudicated and disposed of; and that, consequent-
ly, they will not be further insisted upon before the Tribunal
by the United States, but are henceforth excluded from its con-
sideration by the Tribunal in making its award,"
.This conclusion was announced to the Tribunal by
the Agent of the United States on the 25th of June
in the following words :
"The declaration made by the Tribunal, individually and
collectively, respecting the claims presented by the United
States for the award of the Tribunal for, first, the losses in the
transfer of the American commercial marine to the British flair ;
second, the enhanced payment of insurance ; and, third, the pro-
longation of the war, and the addition of a large sum to the
cost of the war and the suppression of the Rebellion, is accepted
hy the President of the United States as determinative of their
judgment upon the important question of public law involved."
On the 27th, the British Agent announced the ac-
quiescence of his Government in this arrangement,
withdrew his motion of adjournment, and filed the
British Argument.
And in this manner the controversy, which for so
many months had engrossed the attention of the two
Governments, was finally disposed of as the Govern- "
ment of the United States had constantly contended
it should be [unless otherwise settled by treaty], —
that is, by the declaration of the judgment or oi3inion
of the Arbitrators, in such form as to constitute, in
effect, a rule of law, morally binding on Great Britain
and the United States.
The President of the Tribunal, Count Sclopis, then
proceeded to pronounce an appropriate and well-
written discourse, expressing satisfaction at the re-
74 THE TREATY OF WASHINGTON.
luoval of all obstacles to the free action of tlie Tribu-
nal, and commenting on the political relations of the
Treaty of Washington, preparatory to the considera-
tion of the other questions submitted to the Arbitra-
tors.
SEAT OF THE ARBITRATION.
And here, before proceeding to explain and to dis-
cuss the subsequent acts of the Tribunal, it seems
convenient to pause, in order to speak of the scene
of action and of the Tribunal, to Avhich the eyes of
all nations were attracted, and especially those of the
people of England and of America.
It was most fit and proper to select Switzerland
as the country, and Geneva as the city, in which to
hold the sessions of the Tribunal.
In fact, Switzerland, at the same time that it is the
land of hospitality, inviting the frequentation of all
the w^orld by its picturesque scenery, the beauty and
sublimity of its lakes and mountains, is also the land
of neutrality 'par excellence. No other country pos-
sesses in the same degree these qualities conjoined.
In no other country w as it possible to avoid all in-
vidious local suspicion, and to be exempt from any
possible political influence foreign to the objects of
the Arbitration.
The selection was j^eculiarly agreeable to the
United States, by reason of the striking similarity
between our institutions and those of Switzerland.
Both Governments cultivate a polic}' of international
neutrality : the one, by reason of its isolation and re-
ALABAMA CLAIMS. 75
moteuess from the Old World, and the other because
of its geographical position in the midst of the great
military Po'wers of Europe. Both Governments are
federal; and Switzerland, not content with those
modifications of her system of government adopted
in the year 1848, which did so much to assimilate
her political organization to that of the United
States, now manifests the purpose to amend that
Constitution so as to make it still more like to ours.
In both countries the force of public life pervades
society like the blood in the human system, so that
every citizen is an active member of the Kepublic.
Hence it is impossible to an intelligent American to
avoid entertaining warm sympathy for the Swiss
Confederation.
Geneva is a cosmopolitan city, — situated in the
very heart of Europe, — distinguished for the intelli-
gence of its inhabitants and their love of liberty. It
is city^ in respect of the commodities of life: it is
country^ in so far as regards the locality and the sur-
rounding natural objects, Lake Leman, the Jura, and
the Alps.
The Federal Government, as well as that of the
Canton of Geneva, appreciated the honor of being the
seat of this great international Tribunal, and did not
fail to welcome most cordially the two Governments,
their Agents and their Counsel, by conspicuous mani-
festations of political as well as of personal considera-
tion. The Cantonal Government at Geneva hastened
to provide suitable accommodations for the Tribunal in
the Hotel de Ville of that city; it afforded to the mem-
76 THE TREATY OF WASHINGTON.
bers of the Tribunal and to tlie representatives of the
two Governments access to numerous official exhibi-
tions and entertainments ; and, at a suitable time, it
made for us a special festival at Geneva, as the Fed-
eral Government did at Interlaken and at Berne.
Switzerland, and Geneva especially, looking at the
several acts of arljitration provided by the Treaty of
Washington as constituting great steps in the prog-
ress of public peace, welcomed us the more heartily
because of the recent organization there of a society,
whose objects are defined by its title of " Comite In-
ternational de Secours aux Militaires Blesses." This
society had acquired universal respect by its acts of
disinterested philanthropy in the late war between
Germany and France. Its symbol of the red cross
had been the harbinger of relief to many a suffering
victim of battle. It was organized under the Pres-
idency of that General Dufour who, in 1847, had led
to victory the forces of Switzerland against the Seces-
sion [Sonderbund] Cantons. And men could not fail
to note the coincidence, when they saw this great
Tribunal of Arbitration organized under the auspices
of the victorious commander of our own Union forces
[General Grant], as the International Commission for
the Succor of the Wounded had been imder the
auspices of the veteran General Dufour. It was im-
pressive to see the greatest Generals of the two coun-
tries laboring to diminish the chances and lighten the
evils of war.
The Tribunal of Arbitration occupied the same hall
in the Hotel de Yille which had just before been oc-
ALABAMA CLAIMS. 77
cupled by the Society for the Succor of the Wounded :
a room of moderate dimensious, but adequate to the
purpose, fitted up with elegance and good taste, not,
however, specially for the Commission or Tribunal,
but for ordinary uses of the City or Canton, indicated
by its title " Salle des Conferences."
The Hotel de Ville is a structure in the Florentine
style of architecture, situated on the summit of the
old Gemeva, and which is occupied both by munic-
ipal officers of the City and by the executive and leg-
islative authorities of the Canton.
COUNT FREDERIC SCLOPIS.
Here, then, in the "Salle des Conferences" of the
Hotel de Ville, at Geneva, the Tribunal assembled to
listen to the opening discourse of the President, Count
Sclopis, and to take up the business remaining for the
consideration of the Arbitrators.
Count Sclopis, in this discourse, expressed belief
that the meeting of the Tribunal indicated of itself
the impression of new direction on the public policy
of nations the most advanced in civilization, and the
commencement of an epoch in Avhich the spirit of
moderation and the sentiment of equity were begin-
ning to prevail over the tendency of the old routines
of arbitrary violence or culpable indifference. He
signified regret that the pacific views of the Congress
of Paris had not been seconded by events in Europe.
He congratulated the world that the statesmen who
directed the destinies of Great Britain and the United
States, with rare firmness of conviction and devotion
78 THE TREATY OF WASHINGTON.
to the interests of liiimanity, resisting all temptations
of vulgar ambition, had magnanimously and coura-
geously traversed in peace the difficulties which had
divided them both before and since the conclusion of
the Treaty. He quoted approvingly the opinion ex-
pressed by Mr. Gladstone, on the one hand, and by
President Washington, on the other, in commendation
of the policy of peace, of justice, and of honor in the
conduct of nations. And he proclaimed in behalf of
his colleagues, as well as of himself, the purpose of
the Tribunal, acting sometimes wdth the large percep-
tion of statesmen, sometimes with the scrutinizing eye
of judges, and always with a profound sentiment of
equity and with absolute impartiality, thus to dis-
charge its high duty of pacification as well as of jus-
tice to the two Governments.
The discourse w\as worthy of the occasion and of
the man.
Count Frederic Sclopis of Salerano, Minister of
State and Senator of the new Kingdom of Italy, has
attained the ripe age of seventy-four years in the as-
siduous cultivation of letters, and in the discharge of
the highest political and judicial functions. The
countryman and the friend of Count Cavoui', it was
his fortune to co-operate in the task of the unification
of Italy under the leadership of the House of Savoy.
This great military House, with its enterprising,
ambitious, and politic instincts, second in fortune only
to the Ilabsburgs and the Zollerns, rose in the elev-
enth century, on the ruins of the Burgundians,-to the
possession of the passes of the Valaisian, Cottian, and
ALABAMA CLAIMS. 79
Graiau Alps, and of the Gallic territoiy on both
shores of Lake Leman, and at length to the possessiop
of extensive Italian territories, denominated Piedmont
by relation to the Alps and the Apennines, the
nucleus of the present Kingdom of Italy.
It needs to conceive and picture to the mind's eye
the Alpine cradle of this adventurous and martial, but
cultivated race of Italianized Savoisian princes, nobles,
and people, — the fertile, but ravaged valleys of the
Rhone, the Arve, the Albarine, the Arc, and the two
Doras ; the castellated heights of KEcluse, Mont-
melian, and La Brunnetta ; the vine-clad hill-sides and
the lofty cols dominated by the giant peaks of Mont
Blanc and Monte Rosa; the sepulchral monuments of
Haute-Combe and of Brou, and the rich plains along
the Italian foot of the Alps, — in order to comprehend
the gro^vth to greatness of sovereigns such as Vittorio
Emanuele, supported by such generals as Menabrea
and Cialdini, and statesmen and magistrates such as
Azeglio, Balbo, Sclopis, and especially Cavour.
Like his compatriot, the Marquis d' Azeglio, Count
Sclopis is eminent as an author. Of his published
writings, some are in French, such as "Marie Louise
Gabrielle de Savoie" and "Cardinal Morone." But
his most important works are in Italian ; and above
all, the learned "Storia della Legislazione Italiana,"
the last edition of which, in five volumes, is a most in-
teresting and instructive exhibition of the successive
stages of the mediaeval and modern legislation of all
the different States of Italy.
Such was the eminent personage who presided over
80 THE TREATY OF WASHINGTON.
and conducted the deliberations of the Tribunal, and
who represented and spoke for it on ceremonial occa-
sions : a man of large stature and dignified presence ;
of the high breeding of rank, but without pretensive-
ness; cordial and kindly in social intercourse; the
impersonation, as it were, of the intellect and the cul-
ture of Continental Europe.
MR. ST^MPFLI.
Sitting by the right hand of Count Sclopis, as next
to him in precedence, not by reason of age, — for he
was the youngest member of the Tribunal, — but as
representing the local Government, Switzerland, was
Mr. James [or, in German, Jacob] Staempfli: a genu-
ine representative of democratic institutions, — sprung
from the people, — the son of his own w^orks, — clear-
headed, strong-minded, firm-hearted, — somewhat posi-
tive, — not prone to talk except when talk was of the
essence of things, and then briefly and to the point, —
in a word, a man of the very stuff out of which to
make Presidents of Federal Kepublics.
Mr. Stflempfli is a German Swiss of the Canton of
Berne, w^ho has risen from the humblest to the highest
condition in his country by mere force of intellect and
indomitable will. Born in 1820, admitted to the Bar
in 1843, he came forward at once as an advocate, and
as a journalist of radical opinions, and speedily at-
tained distinction. In 1846 we find him a conspicu-
ous member of the Council of State, directing the
finances, and laboring to organize a central military
force. In 1847 he represented the Canton of Berne
ALABAMA CLAIMS. 81
iu the Diet, and was active iu assertino; the rio-Lts of
the Federation against the seceding States of the
Sonderbund. He served in that war as Treasurer
and Paymaster-General of the Army. Displaced for
a while, lie resumed the practice of his profession as
advocate, but soon returned to power, in 1851, as Pres-
ident of the National Council, where he continued to
be distinguished as a close reasoner and incisive speak-
er, full of intelligence and of resources, supported by
great energy of character. In 1856, he was elected
President of the Confederation, and again in 1859,
and the third time in 18G2 : these repeated but in-
terrupted re-elections illustrating the Swiss Constitu-
tion, according to which the President is elected for
one year only, and can not be re-elected for the next
succeeding year, but is otherwise re-eligible without
limitation. Events of great importance to Switzer-
land occurred in the years of the administration of
Mr. Stfempfli ; among others, the separation of Neu-
chatel from Prussia, the war in Italy, and the annexion
of Savoy to France. His theory of executive action
was characteristic of the man, namely, " When peril
is certain, it is better to advance to meet it, rather
than timidly to await its approach." In fine, prepa-
ration and decision are the distinctive traits of all the
official acts of Mr. Stsempfli.
There is one peculiarity in the political character
of Mr. Staempfli, which belongs to him, indeed, as a
Swiss, namely, definiteness and affirmativeness in
the matter of international neutrality and morality.
Switzerland no longer permits capitulations of for-
F
82 'i'lIE TREATY OF WASIIIXGTOX.
eign eulistment : tliey are expressly forLidden by the
Federal Constitution. Her laws punish as a crime
all violation by individuals of the international rights
of foreign Powers. Her neutrality is active, not pas-
sive, — preventive, as well as punitive. She has no
maritime relations, it is true ; but, in dealing with un-
lawful equipments or expeditions by land, she ob-
serves rules of neutrality which are applicable, in the-
ory and practice, equally to equipments or expedi-
tions for naval w^arfare. Our own temporary act of
1838, which comprehends velticles [on land] and ves-
sels [on water] in the same clause of criminality, af
fords complete answer to those Englishmen who have
superficially assumed that because Switzerland is not
a maritime Power, she [or a statesman of hers] could
not competently judge the case of the Alahama or
the Florida. Diligence to execute the law, — vigilance
to prevent its violation, — is the same in Switzerland
as in Italy or Brazil, in Great Britain or the United
States. And the position of Switzerland, Avhieli re-
quires of her the spontaneous execution of her neu-
trality laws, had evident effect on the mind of Mr.
Staempfli to produce those conclusions of his against
Great Britain, which, as we shall see in the sequel,
were so grossly misapprehended and so angrily re-
sented by Sir Alexander Cockburn.
At the time when the Swiss Government invited
Mr. Sta^mpfli to act as Arbitrator for Switzerland
under the Treaty of Washington, he had full occupa-
tion in public or private affairs as a member of the
National Council and as President of the Federal
ALABAMA CLAIMS. 83
(Eldgenossisclie) Bank established at Berne. On
receiving the respective "Counter-Cases" of the two
Governments, which in effect closed the proofs on
both sides, he took a characteristic step in order to
be j^repared for action in June.
As you sail up the Lake of Thun toward Unter-
seen or Interlaken, you note on the left the precipi-
tous wooded mountain-side of Beatenbero;. Here,
high up in a rural hamlet, hidden among the trees,
with' the beautiful lakes of Thun and Brienz at his
feet, and the magnificent spectacle of the Oberland,
terminating at the remoter Berner Alps, — in those
balmy Alpine days when spring is passing into sum-
mer, and all earth is a paradise of verdure and of ani-
mation, — here Mr. Stsempfli secluded himself from the
social distractions and cares of business at Berne, and
dedicated himself to the mastery of the "" Alahcnna
Claims." In such a blessed retreat even law-books
might lose their dullness, and diplomatic correspond-
ence, depositions, and legal pleadings be invested w^ith
the charmed reflection of the matchless scenery of
lakes, fields, hamlets, cities, mountains, and rivers,
glittering in the sun, and resting in the horizon at
the snow-crowned heio-hts of the Juno-frau.
And so it seems to have been. For good St. Bea-
tus blessed the mountain labors of Mr. Staempfli, and
he came to Geneva in due time with full abstracts
of evidence and elaborately written opinions on the
main questions at issue before the Tribunal, to the ap-
parent surprise of Sir Alexander Cockburn, who, con-
fidently relying on the ruj^ture of the Arbitration, as
84: THE TREATY OF WASHINGTON.
lie LImself avowed, had not yet begun to examine tLe
cause^ and seemed to suppose tliat every body else
ought to be as neglectfully ignorant of it as himself:
which sentiment beti-ayed itself on various occasions
in the sittinsrs of the Tribunal.
VISCOUNT OF ITAJUBA.
On the left of Count Sclopis sat the Arbitrator
named by the Emperor of Brazil, the Viscount of
Itajub^.
The people of the United States do not seem to be
generally aware how much of high cultivation, es-
pecially [but not exclusively] in the departments of
diplomacy and jurisprudence, exists in those countries
of America which were colonized by Spain and Por-
tugal. Nevertheless, on careful consideration of the
sterling merits of such historical writers as the Mexi-
can Lucas Alaman, — such authors of international ju-
risprudence as the Chilean Bello, the Argentine Calvo,
or the Peruvian Pando, — such writers of belles-lettres,
of travels, or of statistics, as the Colombians Samper
and Perez, — such poets as the Brazilian Magalhaens,
— such codes of municipal law as those of the States
of Cundinamarca and of Mexico or of the Argentine
Confederation, and of other Republics of Spanish
America, — we should be compelled to admit that lit-
erature and science are not confined to our part of
the New World.
And, among all these new Powers of America, there
is- not one more deserving of, respect, — Empire and
not Republic though it be, — than Bi-azil, in view of
ALABAMA CLAIMS. 85
the magnitude of its territory, tlie greatness of its re-
sources, its military strength and successes, its enlight-
ened and reforming chief ruler, the substantial li]:)er-
ality of its political institutions, and the unbroken
domestic tranquillity of its independent life, so strik-
ingly in contrast with the revolutionary agitations of
most of the Spanish-American Republics.
Marcos Antonio d'Araujo belongs to that numer-
ous body of jurists and statesmen, the natural growth
of parliamentary institutions based on popular elec-
tion, who do honor at the present time to Brazil. He
filled in early life the chair of Professor of Jurispru-
dence in the University of Pernambuco. His first
diplomatic appointment was that of Consul-General
of Brazil in the Hanse Towns, with residence at Ham-
burg. After that he held successively the ofiices of
Minister or Envoy at Hanover, at Copenhagen, at
Berlin, and finally at Paris. At the time of his ap-
pointment as Arbitrator he was Envoy Extraordi-
nary and Minister Plenipotentiary of Brazil in France,
by the title of Baron dTtajubd, and he was made a
Viscount during the progress of the Arbitration.
With exception, therefore, of the judicial studies
and occupations of his youth, the Viscount of Itajubd,
is a diplomatist, having passed nearly forty years of
his life in the discharge of diplomatic functions in
diff*erent countries of Europe. He j)ossesses all the
qualities of his career and station, namely, courteous
and attractive manners, intelligence disciplined by long
experience of men and affairs, instinctive appreciation
of principles and facts, and the ready expression of
8G THE TREATY OF WASHINGTON.
thoiiglit in apt language, but without the tendency to
run into the path of debate or exposition, which ap-
peared in the acts of some of liis colleagues of the
Tribunal of Arbitration.
In comparing Mr. Staempfli, with his deep-brown
complexion, his piercing dark eyes, his jet black hair,
his quick but suppressed manner, and the Viscount
of Itajubd, with his fair complexion and his air of
gentleness and affiibility, one, having no previous
knowledge of their respective origins, would certainly
attribute that of the former to tropical and passion-
ate America, and that of the latter to temperate and
calm-blooded Europe.
SIR ALEXANDER COCKBURN.
On the extremes of the Board, Mr. Adams to the
right and Sir Alexander Cockburn to the left, sat
the American and British members of the Tribunal.
Sir Alexander Cockburn represents a family of
some distinction, the Cockburns of Langton. His
father was British Minister in Colombia, and one of
his uncles was that Admiral Sir George Cockburn,
whose service in American waters during our last
war with Great Britain has left some unpleasant
traces or memories in the United States. His mother
seems to have been a French lady, being described
by Burke as " Yolande, dau. of Viscomte de Vignier
of St. Domingo." He was born in 1802, called to
the bar in 1829, became distinguished as a barrister,
entered Parliament, and, after passing through the
routine offices of Solicitor and Attorney General, was
ALABAMA CLAIJIS. 87
made Chief Justice of the Court of Common Pleas
in 1856, and of the Queen's Bench in 1850, which
pLace he still fills.
He presided for sixteen years in the common-law
courts of England without being raised to the peer-
age. It is unnecessary to speculate on the reasons
for this unusual, if not unprecedented fact.
His political career dates from his zealous defense
of Lord Palmerston in the affair of the notorious
David Pacifico. This person was an adventurer of
doubtful nationality and of bad character, in Avhose
behalf the navy of Great Britain, under Lord Palmer-
ston's direction, seized the Piraeus, captured Greek
merchant- vessels, and threatened Athens. The ground
of claim was alleged destruction of property by a mob.
Pacifico claimed, according to the official statement of
the case by the British Government, £4916 on ac-
count of furniture and other personal effects, which
he originally stated at only 5000 francs, and .£26,618
165. 8c/. on account of papers. It is very doubtful
whether the claim was a proper subject of interna-
tional reclamation. But, after a three months' block-
ade, Greece submitted to pay £5000, of which £4720
was either falsehood or consequential damages ; and
afterward, on examination of the case in Lisbon, a
commission awarded the petty sum of £150 in full
satisfaction of the pretended loss of £26,618, induced
perhaps by political reasons rather than by conviction
of any rights of Pacifico.
The conduct of Lord Palmerston and the British
Government in this affair nearly involved Great Brit-
88 THE TREATY OF WASHINGTON.
ain ill a war with France and Russia. The French
Embassador retired from London to Paris for the
purpose of personal communication on the subject
with his Government. Count Nesselrode on behalf
of Russia remonstrated in a dispatch, which the Lon-
don Times characterized as rejiroachful, irrefutable,
and just, and as profoundly affecting the peace of Eu-
rope and the dignity of Great Britain, The united
voice of Europe and America has condemned the con-
duct of Great Britain in this afliiir. The House of
Lords closed an historic debate by a vote of censure
of the Government. In the Commons, the last words
of Sir Robert Peel were raised in protest against this
outrage on the rights of other nations ; the morn-
ing dawned on a protracted session of the House
before he recorded his vote of condemnation ; in the
afternoon of the same day he met with the accident
which closed his honorable life. Mr. Gladstone in the
same debate said that the claim was "on the very face
of it an outrageous fraud and falsehood;" that "it
was mere falsehood and imposture," and that " a great-
er iniquity had rarely been transacted under the face
of the sun."
Sir Alexander Cockburn was then without pai-lia-
mentary^ distinction or political advancement. With
the devotion of a Dalgetty, he placed his lance at
the service of a chief, retrardless of the merits of the
cause. He was soon rewarded for his services by
appointment to the office of Solicitor-General, from
which he was promoted step by step, with unexam-
pled celerity, to liis present position.
ALABAMA CLAIMS. 89
Since Le became the bead of the Queen's Bencli lie
has occasionally appeared in tbe field of letters on
questions connected with municipal or public law, but
not in a way to invite respect at home, or attention
beyond the limits of Great Britain.
A few years ago he published a monogram on the
subject of nationality, in which he reproduced in an
abridged form [but quite incorrectly, as the remarks
of a most competent judge, Mr. Beach Lawrence, on
droit d'auhaine^ tend to show] the matter contained
in the report of a commission appointed by the Gov-
ernment to inquire into and report upon the laws of
naturalization and allegiance in England.
Again, when it was proposed to arraign Nelson and
Brand as criminals in England for acts committed in
Jamaica under proclamation of martial law. Sir Alex-
ander Cockburn delivered a voluminous charge to the
grand jury, which he afterward published with addi-
tions and notes, notwithstanding the partiality and the
ni'gency of which, the grand jury refused to find a bill ;
and it must be confessed that, as a charge, it was pas-
sionate, vague, declamatory, and confused ; and as an
exposition of law, it is valueless when compared with
the treatises of Mr. Finlason, in England, and of Mr.
Whiting, in America, on the same subject.
This charge, and some proceedings by which it
was followed, provoked much criticism. Mr. Ga-
thorne Hardy, for instance, called attention to the
fact that the Chief Justice "vacillated," that he
"went from one side to another," so as to render it
doubtful what his opinions really were; and Mr.
90 THE TREATY OF WASHIXGTON.
Hardy, as well as Mi'. Mill, wLo spoke ou the other
side of the general question, said that the charge was
" not law," and was " without legal authority." Mr.
Finlason, a most competent authority, said that, " al-
though the charge dealt so largely in denunciation,"
it was " utterly indeterminate and indecisive ;" that
"it avowed a state of entire doubt;" that, though
" there was much denunciation of law laid down [by
others], there was no positive declaration of law laid
down by the Chief Justice." The same writer also
points out grave mistakes of history as well as errors
of law in this charge. Thus, the Chief Justice as-
sumes, as a cardinal thought, that martial law and
military law are one and the same thing: a mistake,
which implies extraordinary confusion of mind, for-
getfulness of his own official opinions in the inci-
dents of the rebellion in Ceylon, and ignorance of
the most commonplace events of English history, for
instance, as detailed in Ilallam and Macaulay.
I allude to these criticisms for the reason that, as
will appear in the sequel, the same singular intellect-
ual traits and moral characteristics of the Chief Jus-
tice, which became conspicuous at Geneva, had shown
themselves on the Queen's Bench, and had attracted
the notice of his fellow-countrymen.
I refer to this charge for another cause. It is diffi-
cult for many reasons to measure the exact personal
value of ordinary legal opinions delivered, in the
course of adjudication, by any judge of the Queen's
Bench. All such difficulties cease when he goes out
of his way to deliver a demonstrative charge to a
ALABAMA CLAIMS. 91
grand jury on one of tlie semi-j)olitical questions of
the day, and especially when such charge is carefully
revised for the Press, with additions and annotations
by himself Then we have the most satisfactory
means of estimating: the mental character of that
judge. And such is the case here, to the effect of
lowering greatly our estimation of the Chief Justice.
A later incident in his judicial career also throws
some light -on his character, and deserves notice in
this connection.
When it was proposed to commence proceedings
against Governor Eyre, growing out of what had
been done in Jamaica under the same proclamation,
Mr. Justice Blackburn delivered a charge to the
grand jury, in the course of which he said: "As to
the judges of my own court, the Lord Chief Justice,
my brother Mellor, ray brother Lush, and my broth-
er Hannen, . . . yesterday I stated to them the effect
of what I am now stating to you, and they all ap-
proved of it, and authorized me to say, — of course, not
relieving me from my responsibility, or absolutely
binding them, for of course they have not considered
it so thoroughly and judicially as I have been
obliged to do, — still they authorize me to say they
agree in ray view of the law, and thought it right."
A week later, when the case had been entirely dis-
posed of, the Chief Justice, while sitting on the
Bench, denied, with unseemly warmth of language
and manner, that he had assented to the law as laid
down by Mr. Justice Blackburn ; but explained the
alleged difference of opinion in such obscure Ian-
92 THE TREATY OF WASIIINGTOX.
guage as to render it scarcely intelligible. Mr. Jus-
tice Blackburn reiDlied, reiterating in temperate lan-
guage Lis statement that the Chief Justice Lad ex-
pressly assented to the legal doctrine of tLe cLarge,
and Lis colleagues, Justices Mellor, LusL, and Han-
nen, gave no support to tLe denial made by tLe CLief
Justice.
TLe qualities of cLaracter exLibited in tLis inci-
dent were tLe occasion at tLe time of unfavorable
commentary on tLe part of tLe BritisL Press and
public.
Sir Alexander Cockburn Lad seemed, on superfi-
cial view, a fit person to take part in tLe important
duties committed to tLe Tribunal of Arbitration. He
carried tLitLer tLe prestige of judicial rank, as tLe
Lead of one of tLe most venerable courts of Europe.
And Le was tliorouo-L master of tLe laniruao-e in
wLicL tLe discussions of tLe Tribunal were con-
ducted.
But, unfortunately, it would seem tLat neitLer tLe
original constitution of Lis mind, nor tLe studies, pur-
suits, or Labits of Lis life. Lad fitted Lim for calm, im-
partial, judicial examination of great questions of
public law. TLe same traits of confused tLougLt,
equivocation in matters of law, tendency to declama-
tory denunciation of adversary opinions, wLicli pro-
voked and justified tLe criticisms of Mr. Finlason,
Mr. GatLorne Hardy, and otLers, and wLicL prompt-
ed conflict witli Mr. Justice Blackburn, reappeared
in more vivid colors at Geneva.
Of tLe offensive singularities of Lis deportment as
ALABAMA CLAIMS. 93
Arbitrator, we shall Lave but too much necessity to
speak in describing the acts of the Tribunal.
MR. CHARLES FRANCIS ADAMS.
In the American Arbitrator, Mr. Charles Francis
Adams, the Tribunal had a member worthy of the
companionship of Count Frederic Sclopis.
In the United States, persons have been found so
foolish as to reproach Mr. Adams because of the his-
torical eminence of his father and of his grandfather,
and even because of the intelligence and cultivation
of his sons : as if it were a crime in a Republic for a
father to have a good son, or a son a good father, or
to live in the holy atmosphere of a succession of w4se
and virtuous mothers.
Besides, if it be meritorious to rise to distinction
from lowliness and poverty, it is not less so to resist
and overcome the obstacles to personal distinction
created by parental station or w^ealth. In this, which
is the only correct view of the subject, all men are
selfmade. The attributes of Mr. Charles Francis
Adams are his own : distinguished parliamentary ca-
reer in the Legislature of the State of Massachusetts
and in the Congress of the United States, — literary
merits of a high order as displayed in his " Life and
Writings of John Adams," — able diplomatic repre-
sentation of his Government in Great Britain during
the whole dark period of our Civil War. He pos-
sessed qualities, acquirements, and experience, general
and special, which seemed to invite his appointment
as American Arbitrator; and in the discharge of the
94 THE TREATY OF WASHINGTON.
duties of the office he did honor to the Tribunal and
to the United States.
The deportment of Mr. Adams as a member of the
Tribunal Avas unexceptionably dignified, manly, cour-
teous, even when compelled on more than one occa-
sion to notice rude acts or words of Sir Alexander
Cockburn. While the conduct of the latter was too
frequently on the comparatively low plane of the nisi
2)rius attorney of a party before a court, the conduct
of the former was uniformly on the higher one of a
member of the court and a judge. Hence, in the
same degree that the personal influence of Mr. Adams,
by reason of his recognized impartiality and integrity,
w^as beneficial to the United States, on the other hand,
the influence of Sir Alexander Cockburn, by reason
of his petulant irritability and unjudicial partisanship
of action, was unfavorable to Great Britain.
Such, then, were the Arbitrators representing the
five Governments.
SECRETARY OF THE TRIBUNAL.
Their Secretary, Mr. Alexandre Favrot, was a gen-
tlemanly person of literary attainments and profes-
sion, actually residing in Berne, but born in the
French-speaking Canton of Neuchatel, who had be-
come perfectly acquainted with the English language
by a sojourn of several years in England.
AGENTS AND COUNSEL.
The Agents of the two Governments, Lord Tenter-
den and Mr. Bancroft Davis, were peculiarly qualified
ALABiUIA CLAIMS. 95
for the places they filled, both of them having served
ia similar capacities in the foreign Department of
their respective Governments, and both having assist-
ed in the negotiation of the Treaty of Washington.
Their friendly personal relations were advantageous
in facilitating the movement of business before the
Arbitration.
Mr. Bancroft Davis deserves particular mention.
Englishmen may criticise the American " Case," the
labor of preparing which devolved chiefly on him;
but its indisputable merit should draw to him the
applause of every American. His literary accom-
plishments, his previous diplomatic experience, his
knowledge of men and things in Europe, and his de-
voted and untiring attention -to the public interests,
were singularly useful to the United States.
Of the persons or qualities of the Counsel of the
United States, Mr. Morrison R. Waite, Mr. William
M. Evarts, and the writer of this exposition, it would
be unbecoming, as it is quite superfluous, here to
speak.
In this relation, however, it is proper to call atten-
tion to two facts or incidents of national interest or
concernment.
In the first place, to the honor of the President of
the United States be it said, in the selection of Coun-
sel by him, as for instance in the invitation to Mi*. B.
R. Curtis, considerations oi party were not allowed to
exert controlling authority.
Secondly, the Counsel themselves emulated the
catholic spirit of the President in subordinating- all
9G THE TREATY OF WASHINGTON.
personal considerations to the single object of win-
ning a great canse, the greatest ever committed to the
charge of members of the Bar, and pending in the
highest court ever organized, namely, the suit of
the United States acjainst Great Britain before the
Tribunal of Arbitration. Althoucrh diverse in their
habits of mind, and in their lines of experience and
action, they acted as a unit in the determination of
advice to be given from time to time to the Govern-
ment or its Agent ; — in the preparation of the printed
Argument required by the Treaty, a document of five
hundred pages, to be signed by them jointly; — and in
the subsequent prej^aration of a number of joint or
separate Arguments in compliance with the require-
ments of the Arbitrators. We may appeal to those
Arguments as the tangible proof, at any rate, of our
concurrent and united dedication, during nine months
of continuous and solicitous thought or laboi*, to tlie
discharge of our duty to our Government and our
country, as Counsel under the Treaty of Washington.
Sir Roundell Palmer alone appeared before the
Tribunal as eo nomine Counsel of Great Britain ; but
Mr. Mountague Bernard, elevated to the office of a
law-member of the Queen's Council, sat by his side at
the Counsels' table, and also Mr. Cohen. The hand
of the latter was apparent in the estimates and ex-
hibits presented to the Tribunal to guide them in the
determination of the damages to be awarded to the
United States.
The recent promotion of Sir Eoundell Palmer to
the pre-eniinent post of Lord Chancellor, by the title
ALABAMA CLARIS. 97
of Lord Selborne, is tLe appropriate consummation of
a professional and parliamentary career of distin-
guished ability and of unstained honor. In conduct-
ing the deliberations of the House of Lords ; in pre-
siding over the High Court of Chancery ; in partic-
ipating in the aftairs of the Cabinet ; in guiding the
conscience of the Queen through the embarrassments
which now beset the English Church, we may be sure
that Lord Selborne will join to the high authority of
a skillful debater and a learned jurist the still higher
authority of a sincerely conscientious statesman, so as
to add incontestable force to Mr. Gladstone's Ministry.
And all that authority, we may confidently assume,
will be used in the promotion or maintenance of
amicable relations between Great Britain and the
United States.
This account of the "personnel of the Arbitration
would be imperfect without mention of the younger
but estimable persons who constituted the staff of
the formal representatives of the two Governments,
namely: on the j^art of the United States, Mr. C. C.
Beaman, as solicitor, and Messrs. Brooks Adams, John
Davis, F. W. Hackett, W. F. Pedrick, and Edward T.
Waite, as secretaries ; and on the part of Great Brit-
ain, in the latter capacity or as translators, Messrs.
Sanderson, Markheim,Villiers, Langley, and Hamilton.
If the labors of these gentlemen were less conspicuous
than those of the Agents and Counsel, they were
scarcely less indispensable ; and they all deserve a
place in the history of the Arbitration.
A single observation will close up these personal
G
98 THE TEEATY OF WASHINGTON.
sketches, and bring us to the consideration of the ul-
terior proceedings of the TribunaL
Occasionally, but not frequently, at the present day,
we hear in the United States unci-racious suirfifestions
touching the personal deportment of Englishmen. No
such observations, it is certain, are justified by any ex-
perience of the city of Washington. The eminent
persons, who, in the present generation, have repre-
sented the British Government here, whether in per-
manent or special missions, such as Sir Richard Pack'
enham, Lord Napier, Lord Lyons, Sir Frederick Bruce,
and Sir Edward Thornton, of the former class, and
Lord Ashburton, the Earl of Elgin, Earl De Grey,
Sir Stafford Northcote, Mr. Mountague Bernard, Sir
John A. Macdonald, and Lord Tenterden, of the latter
class, with the younger persons of their respective
suites, and so many others who have visited this city,
were unmistakably and with good cause popular with
the Americans. Indeed, it is rather in Continental
Europe, and especially in France, and by no means
in the United States, that overbearingness or un-
courteous deportment toward others is regarded as a
trait of Englishmen.
And it is agreeable to remember that, of the ten
EnMishmeu with whom we of the United States came
in daily contact at Geneva, and sometimes in circum-
stances of contentious attitude of a nature to produce
coolness at least, all but one Avere uniformly and un-
exceptionably courteous in act and manner, — and that
one Chief Justice of the Queen's Bench.
Is a holder of the office of Chief Justice emanci-
ALABAMA CLAIMS. 90
pated from all social bonds ? It is not so uitli Chief
Justices in America ; nor was it so in former days in
Great Britain, according to my recollection of the
great judges, the Eldons, the Tenterdens, and the
Stowells, who then presided over the administration
of the common law, and of the equity and admiralty
jurisj^rudence of England. Has the human race there
degenerated? I think not: no j^ossible judicial ten-
ure of office could transform or deform a Roundell
Palmer into an Alexander Cockburn.
EFFORTS OF THE BRITISH GOVERNMENT TO OBTAIN
REARGUMENT.
The Tribunal and the j^ersons attending it are now
before us, and we resume its proceedings at the point
where we left them, namely, the session of the 27th
of June, at the close of the address of Count Sclopis.
The "Argument," filed in behalf of the United
States on the 15th of June, was prepared and deliv-
ered in strict conformity with the stipulations of the
Treaty. It was, in eftect, the closing argument on the
whole case, consisting; of an abridg-ed view of the facts
on both sides as presented in their "Cases" and
" Counter-Cases," with appropriate discussion of the
questions of law which the claims of the United States
involved. We followed the ordinary routine of judi-
cial controversy, and the course of common-sense and
of necessity, in giving a complete resume of our Case
in the final "Argument," as contemplated and pre-
scribed by the Treaty.
The "Case" and "Counter-Case" of each side -had
100 THE TREATY OF WASHINGTON.
sufficiently indicated the scope of inquiry or debate,
and defined its limits. WitLin those limits all perti-
nent law, history, and reason lay at the command* of
the Counsel of the United States, as of those of Great
Britain. If we, the Counsel of the United States, had
neglected at the proper time to avail ourselves of the
c:reat stores of knowledo-e and of reason accessible to
us, we could not expect to suj^ply the deficiencies of
our "Argument" by filing a new one as the means of
response to, and commentary on, the British "Argu-
ment." Such procedure was not authorized, — it was
plainly forbidden, — by the Ti^eaty.
It avails nothing to say that the course prescribed
by the Treaty is itnusual : such was the will of the
two Governments. Doubtless they had good reasons,
and among them, perhaps, was the very purpose of
not having final "Arguments," — that is, the thinl argu-
ment in effect on both sides, — consist of a mere debate
of reply and rejoinder betwixt Counsel.
Great Britain had no cause or excuse for misappre-
hension in this respect, although both Government
and Counsel had, it is true, fallen into the careless
way of speaking of the " Summary" to be filed on the
15th of June. Nay, the paper filed by Great Britain
is expressly entitled "Argument or Summary.'''' If
argument and summary are synonymous terms, then
it is tautology and bad taste to employ them both to
designate the same document. If they mean different
things, then it is misleading to employ the term sum-
mary at all ; for summary is not the language nor the
sense of the Treaty. The Treaty requires each Agent
ALABAMA CLAIMS. Id
to deliver " a written or printed argument showing
the j)oints and referring to the evidence upon which
his Government relies." Do these words imply a
weak or imperfect argument? Do they define the
number of 2:)ages to be occuj)ied ? Do they require
either of the j^arties to leave out his strong points ?
Of course not. And if the Treaty said " summary,"
— which it does not, — who shall say what is a fit sum-
7nary of some twenty volumes of evidence and of legal
discussions, such as the two " Cases " and " Counter-
Cases" comprehend? The United States had the
right to judge for themselves what exhibition of
" points " and what " evidence " to submit to the Ar-
bitrators.
The British Government must have been dissatis-
Jied with, its own argument. That is clear, and is the
only sufficient explanation of the earnest and persist-
ent efforts of Sir Roundell Palmer to obtain permis-
sion to reargue the cause. There was no misapi^re-
hension on the part of the British Government as to
the more or less fullness of argumentation admissible
in the so-called "Argument;" for there is notable
similitude in this respect on both sides in the intro-
ductory lano-uao-e of the final "Aro;iiments"»of the
two Governments. We believed at the time, and all
the subsequent occurrences tended to prove, that as
the British Government had underestimated the force
of our cause until the " Case " came into their hands,
so they did not appreciate the amj^litude of our law
and our evidence until they read our "Argument."
And strange, almost incredible, though it be, the
102 THE TREATY OF WASIIIXGTOX.
British Governuieiit would seem to Lave siipj^osed
that the United States were to discuss and confute
the British " Counter-Case" in the American " Counter-
Case ;" that is, to make reply to an elaborate argu-
ment on tlie law and the facts [for such is the British
"Counter-Case"] without seeing it or possessing any
knowledge of its contents. Manifestly, no complete
and systematic final "Argument" on the part of the
United States was possible without previous thought-
ful knowledge of the British " Counter-Case." And
yet Sir Boundell Palmer, in expressing desire to an-
swer our "Argument," reasoned expressly on the im-
plication that it ought to have been "« mere comple-
ment of previous documents^ Ko such idea certainly
is conveyed by the Treaty; and tlie implication is
contrary to reason and the very nature of things.
Sir Boundell Palmer entered on the question the
moment it became reasonably certain that the Arbi-
tration would proceed. On the 29th of June he pro-
posed to us, informally, to ari'ange for reargument of
the cause, he to have until the end of the first week
of August to prepare his Argument, and we to the
end of August to prepare a reply. The effect of this
would be a suspension of the sittings for more than
ten -weeks, and a prolongation to that extent [and
perhaps much more] of the absence of the American
Arbitrator, Agent, and Counsel from their country.
In other respects the proposition involved much in-
equality; for it would have given to the British
Counsel nearly six iceeks at his own home in London,
with books, assistants, translators, and printing-offices
ALABAMA CLAIMS.
at Lis command, — in a word, the wliole force o?~the
Britisli Government at Lis back, in wLicL to write
and 2:)i'int Lis Argument ; wLile it would Lave afforded
to tLe American Counsel less than four iveeks for tLe
same task, in wLicL to prepare and print our Argu-
ment in botli languages, witL no libraries at Land, no
translators, no printers, tLrown wLolly on our per-
sonal resources away from Lome in tLe Leart of Eu-
rope.
TLe Counsel of tLe United States desired no re-
ar^rument of tLe cause. We found notLino- in tLe
BritisL Argument wLicL we Lad not anticipated and
disposed of to our own satisfaction. Not tLat we
feared reargument : on tLe contrary, we felt sucL com-
plete confidence in our rigLts as to be sure not to lose,
and to Lope ratLer to gain, by furtLer discussion.
Hence we did not desire nor seek reargument, al-
tLougli perfectly ready for it if called upon in con-
formity witL tLe Treaty. Our objections were to tLe
delay and to tLe departure from tLe conditions of tLe
Treaty.
According to tLe explicit language of tLe Treaty,
" tLe decision of tLe Tribunal sLall, if possible, be
made witLin tLree montLs from tLe close of tLe ar-
guments on bptL sides;" and tLe prescribed day "for
tLe close of tLe arguments on botL sides" is tLe lotL
of June. Suppose tLat, by agreement of tLe two Gov-
ernments, — it could not be done by Counsel witLout
consent of tLeir Governments, — "tLe close of tLe
arguments" Lad been postponed to tLe 31st of Au-
gust, as proposed by Sir Roundell Palmer. In tLat
10-1 THE TREATY OF WASHINGTON.
event the Arbitrators could not in reason or decency
have commenced their deliberations until the 1st of
September; they might well have taken, as they did
in fact take, three months to complete their delibera-
tions; and thus the Arbitrators and the American
Counsel [but not the English] would have been de-
tained at Geneva until the 1st of Decembei*, and there-
fore would not have been able to reach their homes
until January.
But the reargument proposed by Sir Roundell
Palmer was contrary to the Treaty, which in express
terms closes the rights of the two Governments as to
hearing, and admits further discussion on their part
only at the requisition of the Arbitrators, " if tliey
desire further elucidation in regard to any point."
[Art. v.] AVhich manifestly intends, not reargument
of the cause, but solution of any doubt, which, after the
completion of the arguments, may occur to the Tri-
bunal. No consent of Counsel could annul the stip-
ulations of the Treaty.
Of course, for reasons of right as well as expedien-
cy, we declined to accede to the proposition of Sir
Roundell Palmer.
Nevertheless, at the meeting of the 27th, immedi-
ately after the conclusion of Count Sclopis's discourse,
Lord Tenterden presented a motion on the part of
Sir Roundell Palmer for leave to file a written arcru-
ment in answer to the Argument of the United States
delivered on the 15th, and requesting adjournment
for that purpose until August. Sir Roundell Palmer
read a brief of the points he desired to argue, which
ALABAMA CLAIMS. 105
covered in effect all the points of the American " Case"
and " Argument " — that is to say, it implied a com-
plete reargument of the whole cause. It amounted
to assuming or admitting that no sufficient or proper
defense had yet been made by the British Govern-
ment.
We, in behalf of the United States, proceeded to
prepare a rej^ly to this motion. We took it up
point by point, and showed by citation of pages that
every one of the proposed points had been largely
and amply discussed already by Great Britain in her
" Case," " Counter-Case," and " Argument ;" that noth-
ing new could be said on these points; and that, in
fact, the very object proposed was to reiterate ar-
guments already adduced, but to do it in the inad-
missible form of mere criticism of the American Ar-
gument. And we cited the Treaty to show that the
discussion proposed was contrary to the explicit con-
tract of the two Governments.
Meanwhile the Tribunal proceeded to decide, on
suggestion of Mr. Adams, that the proposed argument
was inadmissible, and that Counsel had no right to
address the Tribunal unless required by it so to do
for the elucidation of any point under the oth article
of the Treaty.
At the next meeting of the Tribunal, on the 28th,
Sir Alexander Cockburn presented a list of eight
points covering in effect the points of the rejected
motion of Sir Eoundell Palmer, and moved that the
Tribunal require of the Counsel of the two Govern-
ments written or printed arguments on the said points;
lOG THE TREATY OF WASHIXGTOX.
but the Tril)iiiial deciJed not at present to require
sucli ari2:unients.
AVlietlier the motion of Sir Alexander Cockburn
was prompted by Sir Roundell Palmer, in order to
afford to the latter the desired opportunity to criti-
cise the American " Argument,'' — or whether it was
a spontaneous one arising from the former's not hav-
ing studied the case, and his consequent ignorance of
the fact that most of the questions proposed had al-
ready been amply and sufficiently discussed by both
Governments, — does not distinctly appear. Proba-
bly both motives co-operated to induce the motion.
Subsequent incidents throw some light on this point.
Meanwhile it was 2)lain to infer from the observa-
tions of the other Arbitrators, and from their deci-
sion, that they were better informed on the subject
than Sir Alexander Cockburn.
EULES COXCEIiXING THE CONFERENCES OF THE TRIBUNAL.
The Tribunal next decided that the Agents should
attend all the discussions and deliberations of the
Conferences, accompanied by the Counsel, except in
case where the Tribunal should think it advisable to
conduct their discussions and tleliberations with closed
doors. The practical effect of this resolution, when
connected with a resolution adopted at a subsequent
meeting in i-egard to the course of proceeding, was to
enable and require the Agents and Counsel to assist
at the judicial consultations of the Tribunal : it being
understood, of course, that none others should be jires-
ent save the representatives of the two Governments.
ALABAMA CLAIMS. 107
The Tribunal then authorized publicity to be given
to its declaration and to the declarations of the two
Governments, relative to the national claims of the
United States: after which it adjourned to the 15th
of July.
Heretofore, either by intimation to the Secretary,
and to the Agents and Counsel, or by formal resolu-
tion, the Tribunal had signified its desire that the
proceedings should not be committed to publicity,
unless by the will of the respective Governments.
Of course, reporters for the Press, and other persons
not officially connected with the Arbitration, were ex-
cluded from the sitting's of the Tribunal. This re-
serve or secrecy of proceeding was inconvenient to
the many respectable re2:>resentatives of the Press of
London and New York, persons of consideration, who
had come to Geneva for the purpose of satisfying the
public curiosity of the United States and of England
regarding the acts of the Tribunal ; but was dictated,
it would seem, rather by considerations of delicacy
toward the two Governments, than by any reluctance
on the part of the Arbitrators to have their action
made known day by day to the world. It was a tri-
bunal of peculiar constitution and character; its
members were responsible in some sense each to his
own Government, and also to the opinion, at least, of
the litigant Governments; its proceedings were not
purely judicial, but in a certain degree diplomatic;
and a large part of the proceedings were in the na-
ture not so much of action as of judicial consultation,
which it misfht well seem unfit to communicate to the
lOS THE TREATY OF WASHINGTON.
general public as tbey occurred, altliougli perfectly fit
to be thus communicated to the respective Govern-
ments.
The Tribunal reassembled on the 15th of July.
Do^vn to this time all the proceedings of the Arbitra-
tors were in their nature public acts, or they have
been made public through the respective Govern-
ments. All sucli acts were recorded in the protocols.
Hereafter, we shall have, in addition to the acts of
the Tribunal recorded in protocols, a series of pro-
visional opinions, which were also printed and dis-
tributed [or should have been] according to express
order of the Tribunal. These oi:>inions of the Arbi-
trators, as well as their oflicial acts, have already been
made public by both Governments.
But, incidentally to such acts and opinions, there
was much oral debate fi'om time to time at the suc-
cessive Conferences of the Tiibunal. At these de-
bates, the Agents and Counsel of both Governments
were required to assist, by resolution of the Tribunal.
Assisting, w^e necessarily heard what was said by the
respective Arbitrators. We were expected to hear,
it is presumable, and also to understand : otherwise,
why required to attend ?
Are these debates; which occurred in the presence
of so many persons. Agents, Counsel, and others, to be
regarded as confidential and unfit to be disclosed now?
Forget them, we can not, even if copious notes of the
most important debates did not exist to aid and cor-
rect mere memory. Is it, then, improper to speak of
them ? I think not. I conceive that any of us, who
ALABAMA CLAIMS. 109
possess knowledge of those debates, have perfect right
to refer to them on all fit occasions.
I propose, however, on the present occasion, to ex-
ercise this right sparingly, and that only in two rela-
tions, namely, first, very briefly, where such reference
involves mere formality, and is almost inseparable
from acts recorded in the protocols; and, secondly,
with a little more fullness at the close, and with some
retrospection, for the purpose of explaining the final
act of the British Arbitrator.
DISCUSSIONS OF THE TRIBUNAL.
At the meeting of the 15th, discussion arose imme-
diately as to the method and order of proceeding to-
be'ado2:)ted in the consideration of the subjects refer-
'"red to the Tribunal.
Mr. Staempfli then suggested that in his opinion the
proper course was to take up the case of some vessel,
as expressly required by the Treaty, and consider
whether on that vessel Great Britain was responsible
to the United States. He had directed his own in-
quiries in this way, and in this way had arrived at
satisfactory conclusions. His plan had been to select
a vessel, — to abstract the facts proved regarding her,
— and then to apply to the facts the special rules of
the Treaty.
Debate on this proposition ensued between Sir
Alexander Cockburn, on the one hand, and the rest
of the Arbitrators on the other hand; the former de-
siring to have preliminary consideration of " princi-
ples," that is, of abstract questions of law, and the lat-
110 THE TREATY OF WASIIIXGTOX.
ter insisting that tlie true and logical course was that
of the Treaty, namely, to take up a case, to examine
the flicts, and to discuss and apply the law to the
facts thus ascertained, as proposed* by Mr. St?emi)fli.
Finally it was concluded, on the proposition of
Count Sclopis, to follow substantially the programme
of Mr. St?em2:)fli, that is, to take up the inculpated ves-
sels, seriatim, each Arbitrator to express an opinion
in wi'iting thereon, of such tenor as he should see fit,
but these opinions to he2yrovisional only for the pres-
ent, and not to conclude the Arbitrator, or to prevent
his modifying such opinion, on ariiving at the point
of participation in the final decision of the Tribunal.
On the IGth, consideration of the programme of
Mr. St?empfli ^vas resumed. It consisted of the fol-
lowing heads, which deserve to be set forth here, in
order to show how thoroughly the subject had been
examined and digested by Mr. Stsempili.
" (A.) Indications generales :
1. (Question a decider.
2. Delimitation des fails.
3. Principes generaux.
" (P>.) Decision relative a chacnn des croiseurs.
Observations preliminaircs :
1. Le Sumter.
(a) Fa its.
(A) Considerants.
(<•) Jugement."
[Follow the names of the other vessels, with similar sub-di-
vision of licads of inquiry.]
" (C.) Determination duTribunal d'adjiiger unc somme en bloc.
"(D.) Examen des elements pour fixer une somme en bloc.
" (E.) Conclusion et adjudication definitive d'une somme en
bloc."
ALABAMA CLAIMS. Ill
The completeness and exactness of tliis programme
are self-evident ; and by these qualities it really im-
posed itself on the Tribunal, in spite of all objection,
and of occasional temporary departures into other
lines of thoudit. There will be occasion hereafter
to remark on the precision and concision of the opin-
ions of Mr. Staemplli.
SIR ALEXANDER COCKBURN'S CALL FOR REARGUMEXT.
Sir Alexander Cockburn then renewed his propo-
sition for a preliminary argument by Counsel, set-
ting forth analytically the various o])jects of inquiry
involved in the claims of the United States, and con-
cluding: as follows :
"That, looking to tlie difficulty of these questions, and the
conflict of opinion Avhich has arisen among distinguished ju-
rists on the present contest, as well as to their vast importance
in the decision of the Tribunal on the matters in dispute, it is
the duty, as it must be presumed to be the wish, of the Arbi-
trators, in the interests of justice, to obtain all the assistance
in their pOA<-cr to enable them to arrive at a just and correct
conclusion. That they ought, therefoi-e, to call for the assist-
ance of the eminent counsel who are in attendance on the Tri-
bunal to assist them with their reasoning and learning, so that
arguments scattered over a mass of documents may be pre-
sented in a concentrated and appreciable foi-m, and the Tribu-
nal may thus have the advantage of all the light which can be
thrown on so intricate and difficult a matter, and that its pro-
ceedings may hereafter appear to the world to have been char-
acterized by the patience, the deliberation, and anxious desire
for information on all the points involved in its decision, Avith-
out which it is impossible that justice can be duly' or satisfac-
torily done."
" To obtain all the assistance in their power to en-
112 THE TREATY OF AVASIIINGTON.
able them to arrive at a just and correct conclusion,"
— " to call for the assistance of the eminent counsel
who are in attendance on the Tribunal to assist them
with their reasoning and learning."
Analyzing the proposition, and omitting the intro-
ductoiy and concluding phrases of moi-e or less irrel-
evant and diffuse appeal to extraneous considera-
tions, the essence of the proposition is to call on
Counsel to assist the Tribunal, " so that arguments
scattered over a mass of documents may be presented
in a concentrated and appreciable form."
Now, passing over the looseness and inaccuracy of
expression in this statement, it plainly is incorrect in
substance. The considerations of law or fact neces-
sary for the instruction of the Tribunal are not " scat-
tered over a mass of documents ;" they are '' presented
in a concentrated . . . form" [we do not say apprecia-
Ue^ because that is not a quality intelligible as ap-
plied to form~\ in the three arguments of each of the
Governments, — that is to say, " Cases," " Counter-
Cases," and " Arguments." The proposition betrays
singular confusion of mind on the part of a '}nsip?'ius
lawyer and judge. The subjects or elements of ar-
gument are, it is true, "scattered over a mass of doc-
uments ;" ])ut it is quite absurd to apply this johrase
to the Arguments themselves, in which the two Gov-
ernments had each labored, we may suppose, to ex-
hiljit their views of the law and the fticts in a man-
ner to be readily comprehended and appreciated by
the Tribunal. In the Arguments proper, filed on the
15th of June, each Agent had, as the Treaty requires^
ALABAMA CLAIMS. 113
delivered " to each of the said Arbitrators and to the
Agent of the other party a written or printed argu-
ment showing the points and referring to the evi-
dence on which his Government relies." The^e " Ar-
guments " were freshly in the possession of the Arbi-
trators. To call on Counsel, /br the rea8on assigoied,
to reargue the matters therein argued, w^as just as
unreasonable as it would be for a judge presiding at
a hearing in common law, equity, or admiralty, to
call on the counsel, who have just finished their ar-
guments, to do something for the "assistance" of the
Court, — it would be difficult to see what, — to the end
" that arguments scattered over a mass of documents
may be presented in a concentrated and appreciable
form." And if in this case such arsjuments had been
filed in print, it would be natural for counsel to say
that they had just done the thing required of them,
as the Court would perceive if it would please to
read those arguments : which, in the present case, it
would seem. Sir Alexander had neglected to do ; and,
instead of doing it, he had got bewildered by plung-
ing unpreparedly into the " mass of documents" filed
by the two Governments.
After discussion, the Tribunal decided to proceed
with the case of the Florida^ according to the pro-
gramme of Mr. Stoempfli, that is, in effect, overruling
the motion of Sir Alexander Cockburn.
The Tribunal, it would seem, could not perceive
the advantage of discussing speculative general ques-
tions, as in a moot court; and, more especially, ques-
tions of law, which had already been discussed abun-
H
114 THE TRExVTY OF WASHINGTON.
clantly in tlie appropriate place and time, that is, in
the succes
ernments.
the successive Cases and Arguments of the two Gov-
CASE OF THE "FLORIDA" DECIDED.
The Arbitrators then met on the l7th, and pro-
ceeded to take up the case of the Florida.
On motion of Sir Alexander Cockburn, it was or-
dered by the Tribunal that the provisional opinions or
statements to be read by the Arbitrators should be
printed, and distributed to the Arbitrators and to the
Asrents and Counsel of the two Governments.
Mr. Stsempfli's opinion or statement had been read
already, and was in print.
After some incidental discussion among the Arbi-
trators, Sir A. Cockburn began the reading of his
opinion on the case of the Florida.
The Tribunal met again on the 19th, and Sir Alex-
ander Cockburn proceeded to read another portion of
his opinion in the case of the Florida.
Then, after some debate, caused by irregularities of
speech or conduct on the part of Sir Alexander, Mr.
Adams proceeded to read the commencement of his
opinion in the matter of the Florida.
On the 22d, the case of the Florida Avas concluded.
Sir Alexander Cockburn and Mr. Adams completed
the reading of their opinions, and the Baron d'ltajuba
and Count Sclopis both read theirs. The result was
to convict Great Britain of culpable want of due
diligence in the matter of the Florida by the con-
current provisional opinions of four of the Arbitra-
ALABAMA CLAIMS. 115
tors, with a dissenting opinion from the British Ar-
bitrator.
The Florida,, it will be remembered, was a steam
gun-boat, built at Liverpool by Miller & Sons, on
contract with the Confederate agent Bullock, for the
warlike use of the Confederates. Miller & Sons
falsely pretended that she was being built for the
Italian Government by arrangement with Messrs.
Thomas <fe Brothers of Liverpool and Palermo, one of
whom expressly and fraudulently confirmed the false
representation of Miller & Sons. The British Gov-
ernment, although repeatedly warned of the illegal
character of this vessel by the diplomatic and con-
sular authorities of the United States, shut its eyes
to the transparent falsehood and fraud of Miller &
Sons and of Thomas, and took no proper and suffi-
cient measures to investis-ate her character and to
prevent the violation of the laws of the kingdom.
She sailed from Liverjiool without obstruction, cleared
by the name of Oreto, unarmed, it is true, but ac-
companied by another vessel containing her arma-
ment, called the Baliama.
The Oreto next makes her appearance at Nassau,
where she proceeded further to equij) and arm as a
man-ofwar. The naval authorities at Nassau were
unanimous in denouncing her illegal character, but
the civil authorities, perverted by their sympathies,,
could with difficulty be 2:)ersuaded to act against her.
When they did act, she was acquitted by the local
Admiralty Court, in the teeth of the facts and the
law, either corruptly, or with inexplicable ignorance
116 THE TREATY OF WASHINGTON.
of their duty on the part of the Court aud of tlie
attorney representing the Government. No appeal
was taken by the Government.
The Oreto then threw off all pretensions of inno-
cence; she openly completed her equipment, arma-
ment, and crew, partly at one place and partly at an-
othei', under the eye of the colonial authorities ; and
proceeded to cruise and to make prizes as an avowed
man-of-war by the name oi Florida. Meanwhile, with
the illegality of her operations in England, and also
in the Bahama Islands, now notorious and admitted,
she continued to come and go in British ports, and to
obtain supplies there as her base of operations, without
interference on the part of the British Government.
On these facts, the three neutral Arbitrators and
Mr. Adams convicted the British Government of want
of due dili2:ence, and of disreo;ard otherwise of the
Rules of the Treaty, notwithstanding that the Florida
had entered and remained some time in the Confed-
erate port of Mobile.
Their several opinions were precise, definite, clear,
and with positive conclusion, as to all the material
points of the case, in favor of the United States.
Sir Alexander Cockburn's adverse opinion was a
verbose special plea, — which, while admitting all the
material fticts charged, and conceding the palpable
fraud practiced by Miller & Sons and Thomas, — the
original guilt of the vessel, — the absurdity of the ac-
tion of the Admiralty Court of Nassau, — the illegal
equipments at Nassau and elsewhere in British ports,
— aud the continued use of British ports as a base of
ALABAMA CLAIMS. 117
operations, — could not discover in these incidents any
negligence or any violation of neutrality on the part
of the British Government. Sir Alexander chose not
to remember that the affair of the Oreto or Florida
was, from the beginning to the end, according to the
confession of Lord John Eussell himself, a scandal
and a reproach to the laws of Great Britain, and still
more, we may add, a scandal and a reproach to cer-
tain of the B/itish Ministers, of whose honor Sir Alex-
ander assumes to be the special champion.
When Count Sclopis had concluded the reading of
his opinion. Sir Alexander Cockburn renewed his mo-
tion for the hearing of Counsel ; but was again over-
ruled by the Tribunal, which assigned for its next
Conference the consideration of the case of the Ala-
hama.
SPECIAL ARGUMENTS ORDERED ON CERTAIN POINTS.
The Tribunal met again on the 25th ; and the Bar-
on d'ltajubd then made a precise and formal propo-
sition, calling on the Counsel of Great Britain for a
written or printed Statement or Argument in elucida-
tion of three questions of law, namely :
" I. The question of due diligence treated in a genei'al man-
ner.
" 2. The effect of commissions possessed by Confederate ves-
sels of war which had entered into British ports.
" 3. The supplies of coal furnished to Confederate vessels in
British ports,"
And with liberty to the Counsel of the United States
to reply either orally or in writing as the case may be.
This j^roi^o.sition was adopted by the Tribunal.
lis THE TREATY OF WASHINGTON.
In SO far as regards the first point, the call for Ar-
gument was obviously induced by a desire to put an
end to the unseemly importunities of Sir Alexander
Cockburn; for the Arbitrators had in effect again
and again declared that in their judgment there was
no occasion for elucidation or further discussion of
the general question of due diligence; that the Tri-
bunal did not desire any theoretical discussions of
abstract questions; and that the practical question
of due diligence had been already discussed to satiety
in the several Cases and Arguments filed by the re-
spective Governments. We shall perceive in the se-
quel how well-founded were the objections of the Tri-
bunal in this respect ; and how devoid of any useful
object or purpose had been the ill-digested calls of
Sir Alexander Cockburn.
To the other questions propounded by the Baron
dTtajubc4, no objection could be made : they were fit
subjects of the "elucidation" contemplated by the
Treaty.
CASE OF THE "ALABAMA" DECIDED.
The Arbitrators then proceeded to read alphabet-
ically their opinions in the case of the Alabama^ — that
is to say, Mr. Adams, Sir Alexander Cockburn, Count
Sclopis, and Mr. Staempfli read argumentative state-
ments at length, and the Baron d'ltajubti expressed
his concurrence in the statement made by Sir Alex-
ander Cockburn.
In this case the Arbitrators were unanimously of
opinion, — the British Arbitrator equally with his
ALABAMA CLAIMS. 110
collea2:ues, — that the British Government had been
guilty of culpable want of the due diligence required,
either by the law of nations, the Rules of the Treat}^,
or Act of Parliament.
In fact, this vessel had been built and fitted out in
Great Britain in violation of her laws, with intent to
carry on war against the United States ; evidence of
this fact had been submitted, sufficient, in the opinion
of the Law Officers of the Crown, to justify her de-
tention ; notwithstanding which, by reason of absence
of due vigilance, and not without suspicion of conniv-
ance on the part of public officers, and with extraor-
dinary delay in issuing necessary orders, she was suf-
fered to go unmolested out of the immediate jurisdic-
tion of the British Government. Her armament, sup-
plies, and crew were all procured from Great Britain.
And, in like violation of law, she was received and
treated as a legitimate man-of-war in the colonial ports
of Great Britain.
Sir Alexander Cockburn was constrained to admit
want of due diligence as to the case of the Alahcmia,
in three distinct classes of facts, each one of which
sufficed to establish the responsibility of the British
Government.
If Sir Alexander had any good cause to accuse his
colleagues, as he did, of precipitancy and want of
knowledge or practice of law, because they came to
provisional conclusions in the case of the Florida
without waiting to hear Sir Roundell Palmer, surely
the British Government had reason to attach the
same censure to him in the case of the Alahama.
120 THE TREATY OF WASHINGTON.
How could he presume to condemn Great Britain in
this behalf, ignorantly, blindly, in the dark, and with-
out assistance of the " reasoning and learning " of the
eminent Counsel in attendance on the Tribunal ?
But even Sir Alexander Cockburn could no long-er
resist the force of conviction, nor help admitting the
truth of the allegation of the United States, their
Agent and Counsel, imputing culpable negligence to
liis (government. The United States had, not with-
out cause, brou2;ht the British Government to the bar
of public opinion and of the Tribunal of Arbitration ;
himself now confessing it, their Agent and Counsel
had not been engaged, as he had charged, in prefer-
ring "false accusations, unworthy of them and of
their Government." And if the proved and admit-
ted truth of these accusations implies impeachment
oi i\].Q, 2'>ersonal honor of any British Minister or Min-
isters, that is not the fault of the American Govern-
ment, its Agent or Counsel, but of the British Gov-
ernment, whose violation of neutrality is at length
conceded even by Sir Alexander Cockburn.
In the ultimate judgment of all the Arbitrators,
the condemnation of the Alahama and the Florida
carried with it the condemnation of their respective
tenders, namely, the Tuscaloosa, the Clarence, the Ta-
cony, and the Archer.
CASE OF THE "SHENANDOAH" DECIDED.
There remained but three vessels as to whose re-
sponsibility we had reason to have hopes, namely,
the Georgia, the Retriljution, and the Shenandoah ;
ALABAMA CLAMIS. 121
and witli confident expectation only as to the Slien-
andoali after she left Melbourne. Without pausing
here to consider particularly the Retribution and the
Georgia, suffice it to say that eventually they were
rejected; but the Shenandoah, after special explana-
tions in writing submitted by the Counsel of the two
Governments, was held responsible by vote of three
of the Arbitrators, Count Sclopis, Mr. Stsempfli, and
Mr. Adams. As the Shenandoah, after increasing
her armament at Melbourne, had made many captures
at the very close of the war, when her cruise could
not be of any possible advantage to the Confederates,
her exoneration 13y the Tribunal would have been
justly regarded by us as an act of great injustice to
the United States.
THE SPECIAL ARGUMENTS.
It remains next to speak of the successive Argu-
ments of Counsel before the Tribunal, as well those
heretofore indicated as others called for in the sequel.
On the 25th of July, as we have seen, the Tri-
bunal voted to require from the Counsel of Great
Britain a written or printed Argument touching cer-
tain points.
On the 29th, Lord Tenterden announced that he
had delivered the required Argument of the British
Counsel to the Secretary of the Tribunal.
The copy thus delivered was in manuscript. As
subsequently printed, it consists of 43 folio pages.
The replies of the American Counsel, each of them
addressing the Tribunal separately, were presented
122 THE TREATY OF "WASHINGTON.
on tlie otli, Ctb, and 8tli of August, consisting alto-
gether of 47 j)ages of the same folio impression.
It would not be convenient, and it does not come
within my plan, to discuss the Arguments of Counsel
on either side, except where some j^articular point of
such Argument calls for notice. Hence, as in the
case of the general Arguments of April and of June,
so as to the special Arguments called for by the Tri-
bunal, it will be sufficient to enumerate them, and to
give to them their proper place in the history of the
Arbitration.
The first Argument of Sir Roundell Palmer, how-
ever, calls for some observations.
Of his 43 pages, 31, — say three quarters, — are de-
voted nomi nail i/ to the question of due diligence gen-
erally considered.
Now, in the previous regular Arguments, each Gov-
ernment had fully discussed this question, and hacl,
as if by common consent, concluded in express terms
that it neither required nor admitted any further dis-
cussion. That conclusion was correct. Accordingly,
most of these 31 pages are occupied with matters re-
motely, if at all, connected with the question, AYhat
constitutes due diligence ?— ^such as [copying, ^voixl for
word, sundry marginal notes] rules and j^rinciples
of international law ; express or implied engagements
of Great Britain ; effect of prohibitory municipal laws;
the three Kules of the Treaty; the maxims cited by
the United States from Sir Kobert Phillimore on the
question, Ci vitas ne deliquerit an cives; for what pur-
pose Great Britain refers to her municipal laws ; doc-
ALABxVMA CLAIMS. 123
trine of Tetens as to municipal laws in excess of ante-
cedent international obligations; tlie arguments as
to the prerogative powers belonging to the British
Crown ; the true doctrine as to the powers of the
Crown under British law; the British Crown has
power by common law to use the civil, military, and
naval forces of the Eealm to stop acts of war w^ithin
British territory; the preventive powers of British
law explained ; examination of the preventive pow-
ers of the American Government under the Acts of
Congress for the preservation of neutrality : — and so
of diverse other questions discussed by Sir Roundell
Palmer under the head of due diligence generally,
considered. Yevy generally /\t is clear. Nay, 13 of
the 31 pages devoted to the question of " due dil-.
igence generally considered" are occupied with ex-
amination of the laws and political history of the
United States, in continuance and iteration of the
groundless and irrelevant accusations of the Ameri-
can Government introduced into the British Case and
Counter-Case.
Now Sir Roundell Palmer is, omnium consensu^ at
the head of the British Bar in learning, intelligence,
and integrity; and we may be sure that arguments
addressed by him to the Tribunal w^ould be the best
that such a law^yer, so high in mental and moral qual-
ities, or that any living lawyer, be he who he may,
could devise or conceive. The British Arbitrator had
gone "clean daft" in the hope deferred of hearing hirn.
He himself had been earnestly seeking to be heard
by the Tribunal for more than a month ; he had com-
1
124: THE TREATY OF WASHINGTON.
templated being heard for many months. And the
result of all this meditation, and of all this earnest
desire to serve his country, was a series of arguments
mostly immaterial to the issue, as the final judgment
of the Tribunal plainly shows, and coming in after the
main question had been actually settled in the cases
of the Alahama and the Florida. That is to say, —
and it is in this relation the point is introduced, —
the claims of the United States rested on a basis
which all the great forensic skill and ability of Sir
Roundell Palmer could not move, — which commend-
ed itself to the confidence of the neutral Arbitrators,
— and which even extorted the reluctant adhesion of
the prejudiced British Arbitrator.
Subsequently, on requirement of the Arbitrators,
we discussed, in successive printed Arguments, the
sjoecial cjuestion of the legal eff'ect of the entry of
the Florida into Mobile ; the question of the recruit-
ment of men for the Shenandoah at Melbourne; and
the question of interest as an element of the indemni-
ty due to the United States.
QUESTION OF DAMAGES.
Meanwhile, the Tribunal had voted definitively on
the question of the liability or non-liability of Great
Britain for the acts of the cruisers named in the
" Case" of the United States, in the terms which will
appear in explaining their final judgment. They had
also voted on several of the incidental questions, such
as the abstract question of due diligence, entry into
Confederate ports, commission, and supply of coal,
ALABAMA CLAIMS. 125
raised by successive requirements of the Tribunal.
They had thus arrived at the point of discussing
matters, which only affected the form and the amount
of the judgment to be rendered against Great Britain.
And here, on the 26th of August, the Tribunal
voted to deliberate with closed doors, in spite of the
objection of Sir Alexander Cockburn.
Thenceforth, and until the final Conference of the
14th of September, the Tribunal sat with closed doors,
that is, without the assistance of the Agents and
Counsel.
Down to this time, the Agent, Counsel, Solicitor,
and Secretaries of the United States had been assid-
uously occupied in preparing, copying, translating, and
printing Arguments and other documents for the use
of the Tribunal. And even when the regular dis-
cussions were ended, we had still to attend to the
laborious task of preparing schedules of the claims
of the United States in resj^onse to argumentative
estimates filed by the British Government.
FINAL JUDGMENT OF THE TRIBUNAL.
On the 9th of September the Arbitrators defin-
itively adopted the Act of Decision, which had been
considered at the preceding Conference, and ordered
it to be printed. They also resolved that the Decis-
ion should be signed at the next Conference, to be
held with open doors, and they then adjourned to the
14th.
12G THE TREATY OF WASHINGTON.
ANNOUNCEMENT OF THE DECISION.
On Saturday, the 14th of September, the Tribunal
assembled at the hour of adjournment, — half-joast
twelve o'clock. The Hall of Conference ^vas crowded
at this hour with the Arbitrators and the gentlemen
attached to the Arbitration, the ladies of their respect-
ive families, the members of the Cantonal Govern-
ment, representatives of the Press of Switzerland, the
United States, and Great Britain, and gentlemen and
ladies among the most estimable of the private cit-
izens of Geneva. The day was beautiful ; the scene
imposing and impressive. But the British Arbitrator,
Sir Alexander Cockburn, remained unaccountably ab-
sent, while curiosity grew into impatience, and impa-
tience into apprehension, until long after the pre-
scribed hour of meeting, when the British Arbitrator
finally made his appearance.
The official action of the Conference commenced
with the accustomed formalities.
The President then presented the Act of Decision
of the Tribunal, and directed the Secretary to read it
in English, which was done : after Avhich duplicate
originals of the Act were signed by Mr. Adams, Count
Frederic Sclopis, Mr. Stsempfli, and Viscount of Itajuba;
and a copy of the Decision, thus signed, was delivered
to each of the Ai^ents of the two Governments re-
spectively.
Another original was subscribed in like manner, to
be placed, together with the archives of the Tribunal,
amom]: the archives of the Council of State of the Can-
ton of Geneva.
ALABAMA CLxtlJIS. 127
Sir Alexander Cockbiirn, as one of the ArbitratorSj
declining to assent to the Decision, presented a state-
ment of his " Reasons," which, without reading, the
Tribunal ordered to be received and recorded.
Thereupon, in an appropriate address, Count Sclopis
declared the labors of the Arbitrators to be finished,
and the Tribunal dissolved.
The discourse of Count Sclopis was immediately
followed by salvos of artillery, discharged from the
neighboring site of La Treille by order of the Can-
tonal Government, with display of the flags of Geneva
and of Switzerland between those of the United States
and of Great Britain.
It is impossible that any one of the persons present
on that occasion should ever lose the impression of
the moral grandeur of the scene, where the actual
rendition of arbitral judgment on the claims of the
United States a2:ainst Great Britain bore witness to
the generous magnanimity of two of the greatest na-
tions of the world in resorting to peaceful reason as
the arbiter of grave national differences, in the place
of indulofino; in baneful resentments or the vulo;ar
ambition of war. This emotion was visible on almost
every countenance, and was manifested by the ex-
change of amicable salutations appropriate to the
separation of so many persons, who, month after
month, had been seated side by side as members of
the Tribunal, or as Agents and Counsel of the two
Governments ; for even the adverse Agents and Coun-
sel had contended with courteous weapons, and had
not, on either side, departed, intentionally or con-
12S THE TREATY OF WASHIXGTON.
sciously, from the respect due to themselves, to one
another, and to their respective Governments.
conduct' OF THE BRITISH ARBITRATOR.
To the universal expression of mutual courtesy and
reciprocal good-will there was but one exception, and
that exception too conspicuous to pass without notice.
The instant that Count Sclopis closed, and before
the sound of his last words had died on the ear. Sir
Alexander Cockburn snatched up his hat, and, with-
out participating in .the exchange of leave-takings
around him, without a word or sign of courteous rec-
ognition for any of his colleagues, rushed to the door
and disappeared, in the manner of a criminal escaping
from the dock, rather than of a judge separating, and
that forever, from his colleagues of the Bench. It w^as
one of those acts of discourtesy which shock so much
when they occur that we feel relieved by the disap-
pearance of the perpetrator.
SIR ALEXANDER COCKBURN'S REASONS FOR DISSENT.
The British Arbitrator, ^\'ho, so frequently in the
course of the Conferences, acted as a party agent
rather than a judge, had been occupying himself in
the preparation of a long Argument on the side of
Great Britain, in which he tlirows off the mask, and
professedly sj^eaks as the representative of the Brit-
ish Government. He withheld this Argument from
the knowledge of the Tribunal at the proper time
for its presentation as the "Reasons" of an Arhltrator.
At the last moment, — without its being read to the
ALABAMA CLAIMS. 129
Tribunal, or printed for the informatiou of Agents
and Counsel, as a resolution of the Tribunal, adoj^ted
on his own motion, required, — he presents this Argu-
ment as his "Keasons . . . for dissenting fi;om the
Decision of the Tribunal of Arbitration." The title
of the document is a false pretense, as we shall con-
clusively show in due time : the act was a dishonor-
able imposition on the Tribunal, and on hoth Gov-
ernments, Great Britain as much as the United
States.
In point of fact, the document filed by Sir Alexan-
der was in large part of such a character that, if it
had been offered for filing at any proper time, and
wath opportunity to persons concerned to become ac-
quainted with its contents, it must [as declared by
the Secretary of State of the United States in his dis-
patch to the American Agent of October 22, 1872]
have been the plain duty of the American Agent
to object to its reception, and of the Tribunal to re-
fuse it, as calculated and designed to weaken the just
authority of the Arbitrators, as insulting to the United
States in the tenor of much of its contents, and as in-
jurious to Great Britain by its tendency to raise up
obstacles to the acceptance of the Award, and to pro-
duce alienation between the two Governments.
The document consisted, in part, of the 02:)inions of
Sir Alexander Cockburn on the several vessels, copies
of w^hich he ought to have delivered in print to the
Agent and Counsel of the United States, in conform-
ity wdth his own resolution, but w^hich he failed to
do, thus depriving the American Government of ad-
I
130 THE TREATY OF WASHINGTON.
vantages in tliis relation to wliicli it was entitled,
and which the Britiifh Government in fact enjoyed
by reason of the more loyal conduct of the other Ar-
bitrators.
He discusses these vessels with great prolixity, so
as to fill 180 pages folio letter-press, while the corre-
spondent opinions of all the other Arbitrators united
occupy only 6Q pages, the difference being occasioned
partly by the number of letters and other papers in-
terjected into his opinions, and partly by the diffuse-
ness and looseness of his style and habit of thought,
as compared with theirs.
The residue of Sir Alexander's document, consist-
ing of 116 pages,'is devoted partly to the discussion
of the special questions, in all which he is inordinate-
ly prolix, and partly to a general outpouring of all
the bile which had been accumulating on his stom-
ach during the progress of the Arbitration.
SIR ALEXANDER COCKBURN'S "REASONS."
Let me dispose once for all of these "Reasons" and
their author, in order to arrive at subjects of more
importance and interest. The matter of the docu-
ment, and the consideration it has received in En-
gland, require that it should be examined and judged
from an American stand-point.
Apart from the unjudicial violence and extrava-
gance of these " Reasons," it is remarkable how in-
consi'stent, how self- contradicting, how destitute of
logical continuity of thought, how false as reasoning, as
well as irrelevant, is most of the matter.
^
ALABAMA CLAIMS. 131
Tbe Reasons are on their face, and as the London
Press could not fail to perceive .and admit, " an elab-
orate reply to the American Case" [that is to say, an
advocate's plea], "rather than a judicial verdict/'
\Telegraph., September 25.]
It is, in truth, a mere nid priiis argument, not up
to the level of an argument in hcinc; ina2:>propriate
to the character of a judge; and which might have
been quite in place at Geneva as an "Argument" in
the cause, provided any British Counsel could have
been found to ^^^ite so acrimoniously and reason so
badly as Sir Alexander.
To establish these positions, it would suffice to cite
some of the criticisms of the London Press.
The Telegrapli [September 2G] argumentatively
demonstrates the palpable tallaGy of the reasoning
by which Sir Alexander endeavors to excuse the ad-
mitted violation of law and the want of due dili-
gence of the British Government in the case of the
Florida., especially at Nassau.
The Neios [September 26] condemns and regrets
the declaration made by Sir Alexander in his "Rea-
sons '.' twice, where he speaks of himself " sitting on
the Tribunal as in some sense the representative of
Great Britain," and contrasts this with the sounder
view of his duty expressed in Parliament by Lord
Cairns.
Compare, now, this observation of the News with
certain pertinent remarks of the Telegraph [Septem-
ber 25]. Speaking of Mr. Adams, it says: "He put
aside the temper of the advocate M'hen he took his
132 THE TREATY OF WASHINGTON.
seat on the BeucL, and lie performed the difficult duty
with the impartiality of a jurist and the ddlcate lionor
of a gentleman y And this well-merited commenda-
tion of Mr. Adams is prefatory to the exhibition of
Sir Alexander Cockburn retaining still " the temper
of an advocate when lie took his seat on the Bench,"
and not performing his duties "with the impartiality
of a jurist and the delicate honor of a gentleman," but
to the contrary, as shown by his deportment at Gene-
va, and authenticated under his own hand in these
" Reasons."
There is no escape from the dilemma : it was hon-
orable to Mr. Adams to act as a "judge" at Geneva;
and, of course, to act as a mere " advocate " was dis-
honorable to Sir Alexander Cockburn.
And thus we may comprehend at a glance, what
seems ^ remarkable to the Telegraph [September 2G],
that when we pass from the printed opinions of the
three neutral Arljitrators, whose "fairness" nobody
disputes, and from those of the impartial "jurist"
and honorable " gentleman," Mr. Cliarles Francis Ad-
ams, to the "Reasons" of Sir Alexander Cockburn,
" We seem to go into another climate of opinion. . . .
We find different premises, a different bias, a difter-
ent logic, and we might almost say different fjicts."
So it is, indeed ; and the exj^lanation is obvious.
The "climate" of Count Sclopis, Baron dTtajuba, Mr.
Stsempfii, and j\[r. Adams, was that of fairness, judi-
cial dignity, impartiality, gentlemanly honor, such as
belonged to their place as Arbitrators: the "climate"
of Sir Alexander Cockburn was that of a self-appoint-
ALABAMA CLAIMS. 13
o
ed " advocate," making no pretensions to " fairness " or
"impartiality," but, Avitli the "premises," "bias," "log.
ic," and " fticts " of siicli an advocate, drawing up a
passionate, rhetorical plea, as the officious "represent-
ative of Great Britain."
As such "representative of Great Britain," if he be
not promptly disavowed by the British Government,
it will be found that his " Reasons " lay clown many
positions which may somewhat embarrass present or
subsequent Ministers.
The JVetvs notices numerous contradictory opinions
or conclusions which appear in the " Reasons." In
one place Sir Alexander complains that <t«v/ Rules are
laid down by the Treaty, and in another j^lace ex-
presses the conviction that it is well to settle such
cpiestions by Treaty Rules. " He complains . . . that
the Arbitrators have not been left free to apply the
hitherto received princij^les of international law, and
that they have ; that rules have been laid down,
and that they have not; that definitions have been
framed, and that they have not been framed." Here
is most exc[uisite confusion of ideas. It is the very
same extraordinary and characteristic method of
thinking and writing which Mr. Finlason had ex-
hibited at length, and which Mr. Gathorne Hardy
pointed out in the case of the Queen against Nor-
ton: the "inflammatory statements," — the "extra-ju-
dicial denunciation," the "extra-judicial declamation,"
the going "from one side to another," and the say-
ing "it is" and "it is not" upon every point of law.
The perfect similitude of these repulsive features of
13-1 TIIK TREATY OF WASHINGTON.
the "Cliarire'' and the "Eeasons" can not Le accident-
al : it must have its cause in idiosA'ncrasies of mental
constitution.
This vacillation or contradictoriness of opinion,
■Nvhich strikes the News so much, pervades the " Rea-
sons."
Thus Sir Alexander admits want of due dilio-ence
in the matter of the Alabama, and yet stoutly denies
that the United States had any good cause of com-
jilaiut against Great Britain. He insists tliat Minis-
ters w^ere to officiate within the limits of municipal
law, and yet admits that such is not the law of na-
tions, the force of which he also recognizes. He de-
nies that the Ministers can lawfully exercise any pre-
rogative power in such matters, and yet justifies and
approves the exercise of it [although too late] in the
case of the Shenandoah.
The Neivs also calls attention to Sir Alexander's
"disaffection to the conditions under which he dis-
charges his task, a task voluntarily accepted ^vith
full knowledge of those conditions." " He criticises
adversely the Treaty of Washington : . . , these criti-
cisms seem to us to be extra vires. A derived author-
ity ought surely to respect its source. . . . Other con-
siderations than those laid down for him have certain-
ly been present to the mind of Sir Alexander Cock-
burn," etc.
There is manifest justness in this criticism. AVhat
business had Sir Alexander to indul2:e in continual
crimination of the Treaty of Washington, while act-
ing as Arbitrator under it, and possessing no pow-
ALABAMA CLAIMS. 135
er or jurisdiction except such as the Treaty confers?
To do so was indecent in itself, and could have no ef-
fect other than to embarrass the British Government.
With his habitual inconsistency of thought, to be
sure, he advises submission to^the judgment of the
Arbitrators, while exhausting himself in efforts to
shake its moral strength and that of the Treaty. The
Times [September 28] plainly sees that the "Kea-
sons" of Sir Alexander "will be duly turned to ac-
count by Opposition critics." And perhaps that was
one of the objects Sir Alexander had in view, in thus
usurping the function to judge the Treaty under the
cover of acting as Arbitrator to judge the specific
questions submitted by the Treaty.
The Times admits that the " severity of the criti-
cism passed by the Chief Justice on the United States
and their Agents, and even^ on his colleagues, may,
from a diplomatic point of view, be some ground for
regret ;" . . . that " perhaps he was too ready to con-
sider himself the representative of England;" that
"perhaps he takes more than a judicial pleasure" in
one argumentative suggestion ; and that " he dwells,
perhaps, with something too much of the delight of
an advocate" on some other point; and in each one
of these admissions, qualified as they are, we perceive
recoscnition of the fact that, in his "Reasons," Sir
Alexander does not speak as an international Arbi-
trator, or manifest the qualities which ought to char-
acterize a Chief Justice.
The JSfews indicates other singular traits of " irrel-
evance " and confusion of mind in the " Reasons."
136 THE TREATY OF WASHINGTON.
Examination of the substance of the " Reasons"
leads to still more unfavorable conclusions.
. While the Chief Justice exhausts himself in fault-
finding with the Counsel of the United States, it is
observable that he seldom, if ever, grapples with their
arguments, but shoots off instead into epithets of mere
vituperation. Indeed, if it w^ere worth while, it would
be easy to show that he did not really read that ^vhich
he so interaperately criticises. And when he under-
takes to deal with the text, it is only in the disingen-
uous manner of picking out here and there a detached
paragraph or phrase for comment, regardless of the
context or the creneral line of aro;ument.
Nevertheless, when he has occasion to differ in
opinion with the Counsel of the United States, such
is the perverted state of passion and prejudice in
which he thinks and writes, that he imputes to us in-
tention to practice on the " supposed credulity and
io;norance" of the Tribunal.
We were not amenable in anywise to the British
Arl)itrator ; but, if we had been barristers in his own
Court of whom such things were said by him, it would
have been an example of judicial indecency to parallel
which it would be necessary to go back to the days
of infiimous judges like Jeffreys or Scroggs.
Let Sir Alexander be judged by his own rule.
Cramming, as he did at Geneva, in the preparation of
his " Reasons,'' he examined superficially and wrote
precipitately : in consequence of which he copied
from the Arguments for the British Government pal-
pable errors, which were exposed and corrected in
ALABAMA CLAIMS. 137
tlie Ai'o'uments for tlie United States. Thus it is that
he falls into the mistake of asserting a false construc-
tion of an Act of Congress, by having a mutilated
text before him, quoting a part of a sentence, which
may or may not justify his construction, and sup-
pressing the context and the sequent words of the
same sentence, which clearly contradict his construc-
tion. Acting on his own theory of blind prejudice,
we should be compelled to assume that on this occa-
sion he perpetrates a deed of deliberate bad faith,
with intention to j^^'Cfctice on the " supposed credulity
and ignorance" of the people of, Great Britain.
Why did the British Arbitrator put together such
a mass of angry, irrelevant, confused, and contradict-
ory declamation against the American. Government,
and denunciation of its Agent and Counsel I To vin-
dicate the honor of British statesmen. Sir Alexander
declares, in a speech at a banc|uet in London [Novem-
ber 4th], against unjust charges coming from the
American Government. But that should have been
done by speech or otherwise, as Sir Alexander Cock-
hum professedly, and in England, and not under the
false pretense of an Arbitrator at Geneva. And vi-
olent denunciation of our Case or Arguments consti-
tutes no answer to our charges. And in such vituj^er-
ation of the American Agent and Counsel, Sir Alexan-
der not only throws off all pretense of judicial charac-
ter, and assumes the tone of a mere advocate, but he
acts the part of an advocate in temper and manner
such as the proper Counsel of the British Govern-
ment could not have descended to. Indeed, the
13S THE TREATY OF WASIIIXGTOX.
" Reasons " proceed from beginniug to eucl on the liy-
potbesis that the British Agent and Counsel had neg-
lected their duty ; that neither the Case, Counter-Case,
nor Argument of the British Government, by whom-
soever prepared, nor the several supplementary Argu-
ments filed by Sir Boundell Palmer in his own name,
contained a proper exhibition of the defenses of the
British Government ; and more especially that Agent
and Counsel alike had all been false to their country's
Iwnor in not vindicating it against the charges of the
Americans. In view of this dereliction of duty, Sir
Alexander volunteers to supply, more siio, the place
of Counsel, and to respond to the American Agent
and Counsel.
Ao-ainst what chai'o-es? The existence of an un-
friendly state of mind toward the American Govern-
ment in Parliament, or in some of the British Colo-
nies at the period in question? Sir Alexander ad-
mits the fact in stronger terms than we had charged
it. — Failure to exercise due diligence in arresting the
equipment of Confederate cruisers to depredate on
our commerce? Sir Alexander admits: and proves it,
under three heads, as to the Alahama, and only es-
capes the same admission as to the Florida by tech-
nicalities as unsatisfactory to impartial minds in En-
gland as in America. — As the London Tdegrapli says,
in another relation. Sir Alexander, whilst indignantly
protesting against our accusation of British officers,
admits their failure to do their duty, which is the
foundation of the accusation. But for that marvel-
ous confusion of ideas Avhich distiuQ-uishes Sir Alex-
ALABAMA CLAIMS. 139
ancler, even lie must have seen that, in confessing and
])roving the guilt of his Government, he estops him-
self from denying the justice of the accusation pre-
ferred by the United States.
But the point of honor was considered when the
Treaty was signed. How strangely Sir Alexander
forgets the attitude in which this objection stands in
Lord Kussell's correspondence Avith Mr. Adams. If
there was any question of honor in the controversy,
that it was which forbade a treaty of arbitration, as
Lord Russell constantly maintained. But three suc-
cessive Foreign Ministries, represented by Lord Stan-
ley, Lord Clarendon, and Lord Granville, had rightly
decided that the question at issue did not involve the
honor of the British Government. Sir Alexander
wastes his words over a dead issue, utterly buried out
of sight by the stipulations of the Treaty of Wash-
in2:tou.
Mr. John Lemoinne expresses the judgment of Eu-
rope, and anticipates that of history, in condemning
Sir Alexander's "vehemence of polemic and bitter-
ness of discussion, so extraordinary in an official doc-
ument."
Sti'angely enough, the Saturday Beview^ which pre-
tends to see " scurrility" in the American Case and
Argument, where it does not exist, is blind to it in
the " Reasons," where it is a flagrant fact.
Meanwhile, there is nothing accusatory of Great
Britain in the American Case, — there is nothing of
earnest inculpation of the British Government in the
American Argument, — which is not greatly exceeded
140 THE TREATY OF WASIIIXGTOX.
by extra-judicial accusation and inculpation of tie
United States in the " Eeasons " of Sir Alexander.
And it is amusing to read the imputations of " con-
fusion " " vague and declamatory," " ignorance of law
and history," which he applies to the American Coun-
sel, in view of what his own countrymen say of his
own methods of argumentation. Indeed, it would
seem that the hard words of Mr. Finlason and others
concerning him had made such effectual lodgment in
his brain that, whenever he writes, they rush forth
hap-hazard to be applied by him without reason or
discrimination to any occasional object of argument
or controversy.
If, like Mr. Charles Francis Adams, Sir Alexander
had simply prepared brief and temperate opinions on
all the questions, whether favorable or not to the
United States, both Governments would have been
left in an amicable mood. As it is, in professedly
tlirowing off the character of a judge, — wliich alone
belonged to him of right, — of certain specific charges
of the United States against Great Britain, submitted
to liim by the Treaty of Washington, — and in undei-
takino; to become the mere accuser of the United
States, — he does but insult the American Govern-
ment, while subjecting his own Government to much
present inconvenience and great future embarrass-
ment.
There is one particular feature of tlie "Eeasons"
too remarkable to be overlooked.
In reading these "Reasons" carefully, one can not
fiiil to be struck by the frequent manifestation of the
ALABAMA CLAIMS. 141
disposition of Sir Alexander Cockburn to stop and
turn aside in order to criticise Mr. Stsempfli.
Mr. Stgempfli, in conformity with the vote of the
Tribunal, printed his 'provmonal opinions, and deliv-
ered them to the other Arbitrators from time to time,
and to the respective Agents and Counsel.
Sir Alexander Cockburn disingenuously suppressed
his provisional opinions until the last moment, and
then filed a single copy only of the mass of matter,
general and special, entitled "Reasons," which appears
in print for the first time in the London Gazette.
Now, in the provisional opinions of Mr. Staempfli,
it is quite possible there may have been some error
of statement. Sir Alexander takes pains to afiSrm it.
But, if there be any such, it is quite immaterial, and
does not affect any important conclusion either of fact
or of law.
Sir Alexander also committed errors of this class in
the provisional opinions ivliicli lie read. Some of
them were noted at the time, and are still remember-
ed. These errors may have been corrected in the
print which we now have. Indeed, the manuscript
shows numerous corrections. Nevertheless, but for
the suppression of liis provisional opinions, his col-
leagues might have interlarded their provisional or
revised opinions with similar captious criticisms of
him. It is presumable that they did not think it be-
coming or fair to do this; and it was to the last de-
gree unfair in Sir Alexander to do it, in a document
foisted into the record, as it was, at the instant of ad-
journment, and imniediatehj carried off without being
142 THE TREATY OF WASHINGTON.
actually filed with the Secretary or otherwise placed
in the archives of the Tribunal.
Now, in the early pages of his " Keasons ," he im-
putes to Mr. Staempili the having said " that there is
no such thing as international law, and that conse-
quently we [tJie Arbitrators] are to proceed inde-
pendently of any such law," and " according to some
intuitive perception of right and wroug or speculative
notions, etc."
The imputation is calumnious. No such statement
appears in any of the printed opinions of Mr.St^mpfli;
no such declaration \vas ever made by him orally at
any of the Conferences. The declaration of Sir Al-
exander in this respect is but a sample of the rash-
ness and inaccuracy of representation ^vhich pervade
the " Reasons."
What Mr. Stoempfli says on the general subject of
" international law," in so far as regards the matters
before the Tribunal, is as follows :
" Principes geiieraux de droit.
"Dans ses considerants juridiqucs, le Tribunal doit se guider
par les j^rincipcs suivants: —
" 1. En premier lieu, par les ti'ois Ueglcs posees dans rArtielc
VI, dii Traitc, lequel porte que, — et cetera.
• • • • • •
" D'apres le Traite ces trois Regies prevalent sur les principes
que I'on pourrait deduire du droit des gens liistorique et dc la
science.
" 2. Le droit des gens liistorique, ou bien la pratique du droit
des gens, ainsi que la science ct les autoritc's scientitiques,
peuvent etre consideres conirae droit subsidiaire, en tant que
les principes a appliquer sont generalcment reconnus et ne sont
point sujets a controverse, ni en desaceord avcc les trois llegles
ALABAMA CLAIMS. 143
cidessus. Si I'ane on I'autve de ces conditions vient a manquer,
c'est ail Tribunal d'y sujipleer en interpretant et appliquaut les
trois Regies de son mieux et en toute conscience."
At the time wlien Sir Alexander sent to |)ress bis
misrepresentation of the opinions of Mr. Stsempfli, he
had in his hands the authentic statement thereof
as printed at Geneva. There is no excuse, therefore,
for this malicious and dishonorable endeavor of the
British Arbitrator to prejudice the character of the
Swiss Arbitrator in Great Britain.
Nevertheless, Mr. Stampfli, according to "Sir Alex-
ander, having cut adrift from all positive law, adopts
instead "speculative notions," or "some intuitive per-
ception of right and wrong ;" and such ideas Sir Al-
exander repudiates : or, as the London Telegraph has
it, "the Chief Justice, armed with sarcasm as well as
lofric, runs full tilt asjainst that doctrine :" to wit, the
doctrine, still in the words of the Tdcgrapli^ " that the
duties which nations owe to each other must be de-
termined by the light of intuitive principles of jus-
tice." The Telegraph goes on, with truth and reason,
to say that, after all, Mr. St^empfli is right, if he insists
that " the rules of fair dealing, which we term inter-
national law, are not law in the same sense as the pos-
itive edicts of the common law ; for the essence of
such edicts is that they come from a lawgiver in the
form of a parliament or a sovereign : the rules of in-
ternational justice are simply the code which experi-
ence and the judgment of able men have shown to be
fair or expedient, but every civilized country feels
them to be not less binding on that account." With-
144 THE TREATY OF WASHINGTON.
out pausing to consider whether these observations
are perfectly accurate or not as a definition of the law
of nations, we may assume that they are substantially
so, and suffice at any rate to show clearly the uncan-
did spirit of Sir Alexander's criticism of the imputed
language of Mr. Stsempfli, — a criticism which calls to
mind a similar unjust and vicious reproach cast by
Junius on Lord Mansfield.
The actual statement of Mr. Stsempfli, as we have
seen, was unexceptionably accurate and precise, in so
far as res-arded the matters before the Tribunal.
Meanwhile, Mr. Stajmpfli may have said orally, what
he says here in print, that in many supposable cases
of deficient explicitness either of the conventional
rules or of the historic law of nations, " c'est au Tri-
bunal d'y suppleer en interpretant et appliquant les
trois' I'eii'les de son mieux et en toute conscience^
That is what the Viscount of Itajuba says in one
of his opinions, namely, that a certain doctrine, assert-
ed by the British Government, " froisse la conscience."
It is what Count Sclopis intends, when he says, " Les
nations ont entre elles un droit commun, ou, si on aime
mieux, un lien comwwxn, forme 2'>cu' Vequite et sanc-
tionne par le resjiect des interets reciproques ;" and
that such is the spirit of the Treaty of Washington,
" qui ne ftiit (][ue donner la preference aux regies de
Tequite generale sur les dispositions d'une legislation
particuliere quelle qu'elle puisse etre." That is "the
universal immutable justice," which in all systems of
law, international or national, distinguishes right from
wrong, and to which the United States appealed in
ALABAMA CLAIMS. 145
addressing tlie Tribunal of Arbitration. And it is
the negation of all these great principles of "justice,"
" equity," or " conscience," which pervades the " Rea-
sons " of Sir Alexander Cockburn : in reflecting on
which, the mind irresistibly reverts to that same line
of reasoning which astonished the world in his par-
liamentary advocacy of David Pacifico.
And now, who is injured by Sir Alexander's acri-
monious arraignment of the United States. in the last
hour of the Arbitration? It does not successfully
maintain the Tionor of the British Ministers; for it
recoo-nizes their failure to exercise due dilio;ence,
whether tried by the Treaty Rules, by the law of na-
tions, or by the Act of Parliament. Does it influence
the action of the Tribunal ? No : that was consum-
mated already. Does it injure the American Govern-
ment, its Agent and Counsel ? No : so far as regards
us, it does but prove that the American Agent and
Counsel have done their duty regardless of the vin-
dictive ill-will of the British Arbitrator, and that the
United States have been successful to such a degree
as to throw the Chief Justice of England into ecstasies
of spiteful rage, in which he strikes out "wildly against
friend and foe alike, but chiefly against his own Gov-
ernment, in his desultory criticism as well of the
Treaty of Washington as of the judgment of the Tri-
bunal of Arbitration.
For the British Government, we know, has no dis-
position to repudiate the Treaty, and it accepts the
Award in good faith, and desires that it should be ac-
cepted by the people of Great Britain. It can not be
K
146 THE TREATY OF WASHINGTON.
ai:rreeal>le to the British Government to have all the
old debate reopened by the Chief Justice,-^to have
the Treaty, its Eules, the Arbitration, and the Award,
made by him the subject of profuse denunciation, — to
have an arsenal of weapons, good, bad, or indifferent,
collected by him for the use of the Opposition in Par-
liament.
Nor can it be agreeable to see the Arbitrator they
liad appointed demean himself so fantastically, and,
as the English Press is constrained to admit, in a
manner so painfully in contrast Avith the dignity and
judicial impartiality of the American Arbitrator.
The Chancellor of the Exchequer [Mr. Lowe] gave
utterance to these sentiments of grief and regret in a
speech at Glasgow on the 2Gth of September, as fol-
loAvs :
"I conceive our duty to be to obey the Award, and to pay
wliatever is assessed against ns Avitliout cavil or comment of
any kind. [Cheers.] I am happy to say tliat sucli is the opin-
ion of my learned friend, the Lord Chief Justice. But I must
say, with the greatest submission to my learned friend, that I
wish his practice had accorded a little more accurately with
his theory. He has advised us to submit, as I advise you to
submit, to the Award, and not only to pay the money, but to
forego for once the national habit of grumbling — [laughter] —
and to consider that we are bound in honor to do what we are
told, and that, having once put the thing out of our power in
the lionorable and the high-minded way in which the nation
has done, the only way in which wo should treat it is simply
to obey the Award, and to abstain from any comment whatever
as to what the Arbitrators have done. [Cheers.] But, if my
learned friend the Lord Chief Justice thought so, I can only
very much regret that he did not take the course of simply
signing the Award with the other Arbitrators, it being perfectly
ALABAMA CLAIMS. 147
well known that Le differed from them in certain respects, which
would appear by the transactions of the Award. I think it is a
pity when the thing is decided, when we are bound to act upon
it, and when we are not really justified, in any feeling of honor
or of good faith, in making any reclamation or quarrel at all
with what has been done, that he should have thought it his
duty to stir up and to renew all the strong arguments and con-
tests upon which these Arbitrators have decided. [Cheers.]
I think if it was his opinion that we ought to acquiesce quietly
and without murmur in the Award, he had better not have pub-
lished his argument, and, if he thought it right to publish his
arorument, he had better have retrenched his advice itself as to
the arbitration."
Mr. Lowe can not help seeing tliat the "Reasons"
are not an opinion^ but an " argument," and an " argu-
ment" adverse to the conclusions of the writer.
Thus, it would appear, such is the eccentric mental
constitution of the Chief Justice, that while he is in-
capable of going through any process of reasoning
without inconsistencies and self-contradictions at ev-
ery step, so he can not perform an act, or recommend
its performance, without at the same time setting
forth ample reasons to forbid its performance.
In the recent debate in Parliament, to be sure, on
the Queen's speech, some of the members of both
Houses, especially of those in Opposition, speak in
terms of laudation of the " Reasons" of the Chief Jus-
tice. Lord Cairns, on this occasion, seems to have for-
gotten what he had said, on a previous occasion, of the
judicial impartiality to be expected of an arbitrator.
And Mr. Vernon Harcourt, in defending the Chief
Justice against what the Chancellor of the Exchequer
had said of him at Glasgow, unconsciously foils into
148 THE TREATY OF WASHINGTON.
the error of cLavacterlzing liim as " the representative
of the Crown, sent forth to discharge his duty to his
Sovereign and maintain the honor of his country:"
which aftbrds to Mr. Lowe opportunity of responding
triuni])hantly as follows :
"I have not spoken of the Lord Chief Justice in the lan-
guage in which the honorable and learned gentleman lias
spoken of him, and -which filled me with unbounded astonish-
ment. The Lord Chief Justice was sent to Geneva as an Ar-
bitrator to act impartially, and not to allow himself to be
biased by the fact of his being an Englishman, but to give his
judgment on what he thought to be the merits of the case.
That is my belief with regard to the Lord Chief Justice, with
regard to whom I am arraigned by the honorable and learned
gentleman as having treated him disrespectfully. But how
does the honorable and learned gentleman himself speak of the
Lord Chief Justice? He says that learned Judge was a plen-
ipotentiary, — that is to say, that he went to Geneva to do the
work of England, and not to decide between two parties im-
partially, but to be biased in his course, and to go all lengths
lor England. The conduct of the Lord Chief Justice neccatives
such a statement, because in some respects the learned lord
went against us. Then the honorable and learned gentleman
said that the Lord Chief Justice was sent to Geneva to defend
the honor of this country; but the fact is that he was S€7it to ar-
hitrate^ and Sir Mounchll Palmer and others xi^ere sent to defend
the honor of the country. It would be a libel on the Lord Chief
Justice to insinuate that he looidd undertake the office of fjoing
to Geneva nominally hi the character of Arbitrator^ but really
to act as ayi advocate and plenipotentiary for this country P
It is difficult to judge how much of what Mr. Lowe
said on this occasion was intended as sincere defense
of the Chief Justice, and how much was mere sarcasm.
But this uncertainty is due to the ambiguous and
equivocal conduct of the Chief Justice himself, and
ALABAMiV CLAIMS. 149
to his own declaration that, while engaged in w^rit-
ing an extra-judicial pamphlet, under the false pre-
tense of its being the act of an Arbitrator, he was
really speaking as the Representative of Great Brit-
ain. That was the mistake of the Chief Justice. It
was competent for him, after running away from the
Tribunal as he did, to publish in England the con-
tents of the first part of the "Reasons" as a personal
act. It was dishonorable in him to smuggle it into
the archives of the Tribunal, and to publish it in the
London Gazette as the official act of an Arbitrator.
In view of all these incidents, and of the extraordi-
nary contrast between the conduct of Mr. Adams and
Sir Alexander Cockburn, as admitted by Englishmen
themselves, it is easy to comprehend that, while the
former has been honored with the express official
commendation of hotli Governments, the latter, by
wantonly insulting his fellow - Arbitrators and the
United States, has, w^hile receiving partisan praise in
Parliament, rendered it difficult, if not imjDossible, for
him to receive the hearty a2')proval even of his own
Government.
OPINIONS OF THE OTHER ARBITRATORS.
The other Arbitrators also placed on record their
separate opinions as finally corrected, all which de-
serve notice. Each of these opinions consists of an
affirmative exposition of the views of the Arbitrator
who speaks. Count Sclopis, Mr. Stsempfli, the Vicomte
dTtajuba, and Mr. Adams, each of them states his con-
clusions founded on the documents and arguments be-
150 THE TREATY OF WASHINGTON.
fore the Tribunal. Neither of them seems to have
imagined that the cause of truth or of justice would
have been promoted by going outside of the docu-
ments and arsfuments submitted, in order to criticise
or cavil at the opinions of the British Arbitrator.
We begin with Mr. Adams. His opinions are of
some length ; and, although containing correct state-
ments of local law where such statements were mate-
rial, yet deserve to be regarded in the better light of
diplomacy and of international jurisprudence. He
does not descend from the Bench into the arena of the
Bar, If he had seen fit to do this, he might have dis-
covered quite as much inducement to acrimony and
acerbity of discussion in the wanton accusations of
the entire political life of the United States, which
the British Case, Counter-Case, and Argument con-
tain, as Sir Alexander did in any thing which the
Cases and Argument of the United States contained.
But he yielded to no such temptation. "He put
aside the temper of the advocate," as the Telegrapli
truly says, to speak " with the impartiality of a jurist
and the delicate honor of a gentleman." Accordingly,
his opinions are without blemish either in temper 6r
in lanmiao-e. He finds want of due dilic^ence- in the
matter of the Alabama: and so did the British Ar-
bitrator. He finds extraordinary disregard of law in
the matter of the Florida: and so did the British
Arbitrator. He finds a series of acts of scandalous
wrong perpetrated by officers of the British Govern-
ment in both these cases: and so did the British Ar-
bitrator. He can not, as the British Arbitrator does,
ALx\BAMA CLAIMS. 151
find justification for tlie acts of negligence of British
Colonial authorities in the matter of the Shenandoali
or that of the Metrihution. And, as might have been
anticipated, his conception of the duties of a State
suppose a higher standard of national morality than
that recognized by the British Arbitrator.
Mr. Stsempfli's opinions are also of considerable
length, but differ from those of Mr. Adams, especially
in the form, which is that customary among the jurists
of the Continent. . He also, while confining himself to
the most rigorous deductions of international law, in
discussing the acts of the inculpated Confederate cruis-
ers, yet writes like a statesman, habituated to breathe
the air of that "climate" of "the impartiality of a
jurist and the delicate honor of a gentleman" which
was not the " climate" of the British Arbitrator.
The opinions of the Yicomte d'ltajuba are very
brief, but in the same form of analysis as the opinions
of Mr. Stsempfli. It is to be noted, however, that, be-
yond stating his- reasoning and conclusion as to each
of the inculpated cruisers, he speaks of only one of the
special questions argued, namely, that of the effect to
be given in British ports to the Confederate cruisers
exhibiting commissions. As to this point he con-
cludes as follows :
"La commission dont un tel navire est pourvu, ne sufEt pas
pour le couvrir vis-a-vis du neutre dont-il a viole la neutralite.
Et comment le belligerant se plaindrait-il de I'application de
06 principe ? En saisissant ou detenant le navire, le neutre ne
fait qu'empecher le belligerant de tirer profit de la fraude com-
mise sur son territoire par ce meme belligerant; tandis que,
en ne procedant point contre le navire coupable, le neutre
152 THE TREATY OF WASHINGTON.
s'exposc justcmcnt u ce que I'autre belligerant suspecte sa
bonne foi.''^
In tliese observ^ations, we see that the Yicomte
critajuba appeals to tlie same "intuitive perceptions
of riglit" which are so unpaLatable to the British Ar-
bitrator.
The Vicomte d'ltajuba does not giv^e us any opin-
ion on the subject of " due diligence generally consid-
ered :" which tends to prove that his call for argument
on that point was not induced by any need on his
part for elucidation of Counsel.
The opinions of Count Sclopis, — not only those in
w^hich he judges the particular cases, but especially
those in which he discusses the questions of public
law, as to which mere opinion was drawn from the Ar-
bitrators, virtually at the instance of Great Britain, —
are instructive and interesting disquisitions, of per-
manent value as the views of an erudite legist and a
practiced statesman. The paper on due diligence is
remarkable for its profound and comprehensive view
of that subject in its higher relation to the acts of
sovereign States. In this paper, he thoroughly exposes
the fallacy of the argument of Sir Eoundell Palmer,
which would lower the generality and the greatness
of the Treaty Bules to the level of the municipal law
of Great Britain.
And now, having reviewed the stipulations of the
Treaty in this respect, the debates attending it both
before and after its conclusion, the proceedings of the
Tribunal of Arbitration, and the separate opinions of
the Arbitrators, we come to the consideration of what
ALABAMA CLAIMS. 15
Q
tliey actually decided, tlie immediate effect of the De-
cision, and tlie general relation thereof to Great Brit-
ain, to the United States, and to the other Govern-
ments of Europe and America.
EEVIEW OF THE DECISION OF THE TRIBUNAL ON NATION^iL
LOSSES.
To begin, let us see what was the true thought of
the Tribunal regarding the class of claims, as to w^hich
the British Government displayed so much superflu-
ous emotion subsequently to the publication of the
American Case, and which the Tribunal passed ui^on,
in effect, without previous decision Vv^hether they were
or were not embraced in the Treaty.
I have already called attention to the fact that no
consideration of direct or indirect, immediate or conse-
quenticd, appears in that opinion of the Tribunal.
The Arbitrators express a conclusion, not the reasons
of the conclusion. We might, it is true, easily infer
those reasons from the Ian2:ua2:e in which the conclu-
sion is expressed. That language excludes all such
trivial questions as whether " direct " or " indirect,"
and invokes us to seek for the unexpressed reasons in
some higher order of ideas. Meanwhile we have, at
length, in the final " Decision," means of ascertaining
the whole thouo^ht of the Tribunal.
The Arbitrators had to pass on a claim of indemni-
ty for the costs of pursuit of Confederate cruisers by
the Government : — a claim admitted to be within the
jurisdiction of the Tribunal, and w^hich the Tribunal
rejects on the ground that such costs " are not, in the
154 THE TEEATY OF WASHINGTON.
judgment of tlie Tribunal, jiroperly distinguisliable
from the general ex2:)enses of tlie war carried on by
the United States."
Here, the major premise is assumed as already de-
termined or admitted, namely, that " the general ex-
penses of the war " are not to be made the subject of
award. A¥hy not? Because such expenses are in
the nature of indirect losses ? No such notion is in-
timated. Because the claim, as being for indirect
losses, is not within the purview of the Treaty ? That
is not said or imjjlied. Because such a claim is be-
yond the jurisdiction of the Tribunal? No: for the
Tribunal takes jurisdiction and judges in fact. The
question then remains, — why is a claim for losses
pertaining to the general expenses of the war to be
rejected?
There can be no mistake as to the true answer. It
is to be found in the preliminaiy opinion expressed
by the Arbitrators.
The Tribunal, in that opinion, says that the contro-
verted [the so-called indirect] claims " do not consti-
tute, upon the principles of international law applica-
ble to such cases, good foundation for an a^vard of
compensation or computation of damages between na-
tions." Why does not the injury done to a nation by
the destruction of its commerce, and by the augmenta-
tion of the duration and expenses of war, constitute " a
good foundation for an award of compensation or com-
putation of damages between nations ?" The answer
is that such subjects of reclamation are " not properly
distinguishable from the general expenses of war."
ALABAIkIA CLAIMS. 155
•Let US analyze tliese two separate but related
opinious, and tlius make clear tlie intention of tlie
Tribunal. It is this :
The injuries done to a Belligerent by the failure of
a Neutral to exercise due diligence for the prevention
of belligerent equipments in its ports, or the issue of
hostile expeditions therefrom, in so far as they are in-
juries done to the Belligerent in its political capacity
as a nation, and resolving themselves into an element
of the national charges of war sustained by the Bel-
ligerent in its political capacity as a nation, do not,
" upon the jyrinciples of international law applicable
to such cases " [excluding, that is, the three Rules],
constitute " good foundation for an award of compen-
sation or computation of damages between nations."
Such, in my oj^inion, is the thought of the Arbitra-
tors, partially expressed in one place as to certain
claims of which they did not take jurisdiction, and
partially in another place as to others of which they
did take jurisdiction, — the two partial statements be-
ing complementary one of the other, and forming to-
gether a perfectly intelligible and complete judgment
as to the whole matter.
The direct effect of the judgment as between the
United States and Great Britain, is to prevent either
Government, when a Belligerent, from claiming of the
other, when a Neutral, " an award of compensation or
computation of damages" for any losses or additional
charges or " general expenses of war," which such Bel-
ligerent, in its political capacity as a nation, may suf-
fer by reason of the want of due diligence for the
156 THE TREATY OF WASHINGTON.
prevention of violation of neutrality in the ports of
sucli Neutral. That is to say, the parties to the
Treaty of Washington are estopped from claiming
comjiensation, one of the other, on account of the na-
tional injuries occasioned by any such breaches of
neutrality, not because they are indirect losses, — for
they are not, — but because they are national losses,
losses of the State as such. And each of us may, in
controversies on the same point with other nations,
■allege the moral authority of tlie Tribunal of Geneva.
But, w^hile national losses incurred by the Bellig-
erent as a State in consequence of such breaches of
neutrality are not to be made the subject of " com-
pensation or computation of damages," all private or
individual losses may be, under the qualifications and
limitations as to character and amount found by the
Tribunal, and which will be explained in treating of
that part of the Decision.
These conclusions are the inevitable result of care-
ful comparison of the several claims with the several
decisions. True it is, the national claims of indem-
nit}^ for the cost of the pursuit of the Confederate
cruisers happened to come before the Tribunal asso-
ciated with strictly j)rivate claims, and the strictly
j^rivate claims on account of payment of extra war
premiums associated with national claims ; but these
are perfectly immaterial incidents, which do not in
any way affect appreciation of the opinions of the
Tribunal.
Another subject of reflection suggests itself, in
comparing the respective decisions on national and
ALABAMA CLAIMS. 157
on private losses, produced by tlie failure of a Neu-
tral to niaiutain neutrality.
We asserted the responsibility of Great Britain
for tlie acts of such of tlie Confederate cruisers as
came within either of the three Kules, just as if those
cruisers had been fitted out or supplied by the Brit-
ish Government, to the extent at least of the prizes
of private property which those cruisers made. That
was the theory of imputed resj)onsibility. Any cruis-
er enabled to make prizes by the fault of the Brit-
ish Government was to be regarded as 2)ro tanto a
British cruiser, and Great Britain, in the words of
the British Counter-Case, "treated [in that respect]
as a virtual participant in the war." The Tribunal
seems to have so held; that is, in regard to the losses
of individual citizens of the United States.
Moreover, it was argued on both sides, as by com-
mon consent, that the question between the two
Governments was one of war, commuted for indem-
nity.
" Her [Great Britain's] acts of actual or constructive com-
plicity with the Confederates," says the American Argument,
'' gave to the United States the same riglit of war against her,
as in similar circumstances she asserted against the Nether-
lands.
"We, the United States, holding those rights of war, have
relinquished them to accept instead the Arbitration of this
Tribunal. And the Arbitration substitutes correlative legal
damages in the place of the right of war."
This position is clearly stated in the British Coun-
ter-Case as follows :
"Her Majesty's Government readily admits the general
158 "^11^ TREATY OF WASHINGTON.
" principle that, where an injury has been done by one nation
" to another, a chiim for some appropriate redress arises, and
" that it is on all accounts desirable that this right should be
" satisfied by amicable reparation instead of being enforced by
" war. All civil society reposes on this principle, or on a prin-
"ciple analogous to this ; the society of nations, as well as that
"which unites the individual members of each particular com-
" monwealth."
Now the capture of jirivate property on the seas,
it can not be denied, is one of the methods of 2:)ublic
war. Whether such capture be made by letters of
marque, or by regular nien-of war, is immaterial ; in
either form it increases the resources of one Bellisfer-
ent and it weakens those of the other; and if the
Neutral fits out [or, in violation of neutral duty, suf-
fers to be fitted out in its ports, which is the same
thing] cruisers in aid of one of the Belligerents, such
Neutral becomes a virtual participant in the war, not
only prolonging it and augmenting its expenses, but
perhaps producing decisive effects adverse to the
other Bellio-erent. These are the national losses, or,
O 7 7
as the British Government insists, the indirect losses,
inflicted by neglect or omission to discharge the ob-
ligations of neutrality.
In deciding that such losses, — that, in general,
the national charges of war, — can not by the law of
nations be regarded as "good foundation for an
award of com2:)ensation or computation of damages
between nations," the Tribunal in effect relegated
that question to the unexplored field of the discre-
tion of sovereif]i;n States.
Claims of indemnity for the national losses gro^v-
ALABAMA CLAIMS. *
ing out of a state of war being thus disposed of, we
arrive at tlie great class of private losses, Avliicli chief-
ly occiij^ied the time of the Tribunal.
DECISION AS TO PRIVATE LOSSES.
The Arbitrators, assuming that, pursuant to the
command of the Treaty, they are to be governed by
the three Rules, and the principles of international
law not incompatible therewith, proceed to lay down
the following prefatory positions, namely :
1. "The 'due diligence' referred to in the first and third of
the said Rules, ought to be exercised by neutral Governments
in exact proportion to the risks to which either of the Belliger-
ents may be exposed from a failure to fulfill the obligations of
neutrality on their part.
2. " The circumstances, out of which the facts constituting the
subject-matter of the present controversy arose, were of a na-
ture to call for the exercise on the part of Her Britannic Maj-
esty's Government of all possible solicitude for the observance
of the rights and the duties involved in the proclamation of
neutrality issued by Her Majesty on the 13th day of May, 1861.
3. "The efiects of a violation of neutrality committed by
moans of the construction, equipment, and armament of a ves-
sel are not done away Avith by any commission* which the Gov-
ernment of the belligerent Power benefited by the violation of
neutrality may afterward have granted to that vessel; and the
ultimate step, by which the oftense is completed, can not be
admissible as a ground for the absolution of the otiender; nor
can the consummation of his fraud become the means of estab-
lishing his innocence.
4. "The privilege of ex-territoriality accorded to vessels of
war has been admitted into the laws of nations, not as an ab-
solute right, but solely as a proceeding founded on tlie princi-
ple of courtesy and mutual deference between different na-
tions, and therefore can never be appealed to for the protec-
tion of acts done in violation of neutrality.
100 THE TREATY OF WASIlfXGTON.
5. "Tlie absence of a previous notice can not be regarded as
a failure in any consideration required by the law of nations,
in those cases in which a vessel carries with it its own con-
demnation.
6. " In order to impart to any supplies of coal a character
inconsistent with the second Rule, prohibiting the use of neu-
tral ports or waters, as a base of naval operations for the Bel-
ligerent, it is necessary that the said supplies should be con-
nected with special circumstances of time, of persons, or of
place, Avhich may combine to give them such character."
Keeping in view these rules of construction, tlie
Tribunal p'oceeds to judge the British Government
in regard to each of the Confederate cruisers before
them.
As to the Alahama, originally "No. 290," construct-
ed in the port of Liverpool and armed near Terceira,
through the agency of the Ag?'ij)jnna and Baliama,
dispatched from Great Britain to that end, the Tri-
bunal decides that the British Government failed to
use due diligence in the performance of its neutral
obligations :
1. Because "it omitted, notwithstanding the warnings and
official representations made by the diplomatic agents of the
United States during the construction of the said 'No. 290,' to
take in due time any effective measures of prevention, and that
those orders which it did give at last, for the detention of the
vessel, were issued so late that their execution was not prac-
ticable;" 2. Because, " after the escape of that vessel, the meas-
ures taken for its pursuit and arrest were so imperfect as to
lead to no result, and therefore can not be considered sufficient
'to release Great Britain from the responsibility already in-
curred;"" 3. liecausc, "in despite of the violations of the neu-
trality of Great Britain committed by the ' 290,' this same ves-
sel, later known as the Confederate cruiser Alahama, was on
several occasions freely admitted into the ports of Colonies of
ALABAMA CLAIMS. 161
«
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 ;" 4. And because " the
Government of her Britannic Majesty can not justify itself for
a failure in due diligence on the plea of the insufficiency of the
legal means of action which it possessed."
As to the Florida^ originally called Oreto^ the Tri-
bunal decides that the Britisli Government failed to
use due diligence to fulfill its duties :
1, Because "it results from all the fticts relative to the con-
struction of the Oreto in the port of Liverpool, and to its issue
therefrom, which facts failed to induce the Authorities in Great
Britain to resort to measures adequate to prevent the violation
of the neutrality of that nation, notwithstanding the warnings
and repeated representations of the Agents of the United
States ;" 2. Because " it likewise results from all the facts rela-
tive to the stay of the Oreto at Nassau, to her issue from that
port, to her enlistment of men, to her supplies, and to her arma-
ment wuth the co-operation of the British vessel Prince Alfred
at Green Cay, that there was negligence on the part of the
British Colonial Authorities ;" 3. Because, " notwithstanding
the violation of the neutrality of Great Britain committed by
the Oreto, this same vessel, later known as the Confederate
cruiser Florida, was nevertheless on several occasions freely
admitted into the ports of British Colonies ;" and, 4. Because
"the judicial acquittal of the Oreto at I^assau can not relieve
Great Britain from the responsibility incurred by her under the
principles of international law ; nor can the fact of the entry
of the Florida into the Confederate port of Mobile, and of its
stay there during four months, extinguish the responsibility
previous to that time incurred by Great Britain."
As to the Shenandoah, originally called the Sea
King, the Tribunal decides that the British Govern-
ment is not chargeable with any failure in the use of
due diligence to fulfill the duties of neutrality respect-
L
162 THE TKEATY OF WASHINGTON.
ing her during the period of time anterior to her en-
try into the port of Melbourne : but —
" That Great Britain has failed, by omission, to fulfill the du-
ties prescribed by the second and third of the Rules aforesaid,
in the case of this same vessel, from and after her entry into
Hobson's Bay, and is therefore responsible for all acts commit-
ted by that vessel after her departure from Melbourne, on the
18th day of February, 1865."
The Tribunal further decides as to the Tuscaloosa^
tender to the Alahama, and as to the Clarence^ the
Tawny , and the Archer, tenders to .the Florida :
"That such tenders or auxiliary a^csscIs being properly re-
garded as accessories, must necessarily follow the lot of their
principals, and be submitted to the same decision -which ap-
plies to them respectively."
As to the other vessels accused, namely, the Retri-
hution, Georgia, Sumter, Nasliville, Tallahassee, and
Chichamavga, the Tribunal decided " that Great Brit-
ain has not failed, by any act or omission, to fulfill
any of the duties prescribed by the three Rules of
Article VI. in the Treaty of Washington, or by the
principles of international law not inconsistent there-
with."
Thus far the Tribunal had dealt only with the con-
siderations of law and of fact applicable to the gener-
al question of the naked legal responsibility of Great
Britain.
As preparatory to the ulterior question of the sum
to be awarded to the United States by way of indem-
nity, the Tribunal decides ;• 1. "That prospective earn-
ings can not properly be made the subject of compen-
ALABAMA CLAIMS. 163
sation, inasmucL. as they depend in tlieir nature upon
future and uncertain contino;encies:" 2. "In order to
arrive at an equitable compensation for the dama-
ges which have been sustained, it is necessary to set
aside all double claims for the same losses, and all
claims for 'gross freights' so far as they exceed 'net
freights;' " 3. "It is just and reasonable to allow in-
terest at a reasonable rate."
Finally, the Tribunal, deeming it preferable, in ac-
cordance with the sj)irit and the letter of the Treaty
of Washington, to adopt the form of adjudication of
a sum in gross rather than to refer the subject of
compensation to Assessors, concludes as follows :
"The Tribunal, making use of the authority conferred upon
it by Article VII. of the said Treaty, by a majorityi of fou r
voices to^onej_a^vards_to_i]i£jQjiitfid-^tates the sum of fifteen
millions five hundred thousand dollars in gold as the indemni-
ty to be paid by Great Britain to the United States for the
satisfaction 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 declares that ' all the claims referred
to in the Treaty as submitted to the Tribunal are hereby fully,
perfectly, and finally settled.'
" Furthermore, it declares that each and every one of the said
claims, whether the same may or may not have been presented
to the notice of, or made, preferred, or laid before the Tribunal,
shall henceforth be considered and treated as finally settled,
barred, and inadmissible."
It deserves to be remembered that the British Ar-
bitrator, and he alone, refused to sign the Decision.
No good reason appears to justify this refusal, seeing
IG-i THE TREATY OF WASHINGTON.
that the signature is but autheutication, and the body
of the Decision sets forth all the differences of opinion
existinj? amono; the Arbitrators. Thus, Mr. Adams
and Mr. St.'i3ni])fli were overruled on two questions;
and yet they signed the Act. So the Vicomte d'lta-
jubd was overruled on the great question of the lia-
bility of Great Britain for the Shena?idoah ; and yet
he signed the Act. In separating himself from his
colleagues in this respect, the British Arbitrator ex-
hibited himself as what he was, as most of his ac-
tions in the Ti'ibunal demonstrated, — as his subse-
quent avowal established, — not so much a Judge, or
an Arbitrator, as the volunteer and officious attor-
ney of the British Government.
EFFECT OF THE AWARD.
In reflecting on this Award, and seeking to deter-
mine its true construction, let us see, in the first place,
what it actually expresses either by inclusion or ex-
clusion.
The Award is to the United States, in conformity
with the letter of the Treaty, which has for its well-
defined object to remove and adjust com^olaints and
claims " on the part of the United States."
But the history of the Treaty and of the Arbitra-
tion shows that the United States recover, not for the
benefit of the American Government as such, but of
such individual citizens of the United States as shall
appear to have suftered loss by the acts or neglects
of the British Government. It is, however, not a spe-
cial trust legally affected to any particular claim or
ALABAMA CLAIMS. 165
claimants, but a general fund to be administered by
the United States in good faitb, in conformity with
their own conceptions of justice and equity, within
the range of the Award. If, according to any theory
of distribution adopted by the United States, the
sum awarded prove inadequate, we have no claim on
Great Britain to supply the deficiency : on the other
hand, if the A^vard should prove to be in excess, we
are not accountable to Great Britain for any balance.
On this point, precedents exist in the diplomatic his-
tory of Great Britain herself
The Tribunal does not afford us any rules of limit-
ation affecting the distribution of the Award, un-
less in the declaration that "prospective earnings,"
" double claims " for the same losses, and " claims for
gross freights, so far as they exceed net freights," can
not properly be made the subject of compensation, — -
that is to say, as against Great Britain.
Nor does the Tribunal define afiirmatively what
claims should be satisfied otherwise than in the com-
prehensive terms of the Award, which declares that
the sum awarded is "the indemnity to be paid by
Great Britain to the United States for the satisfac-
tion of all the claims referred to the consideration of
the Tribunal^ conformably to the provisions contained
in Article VII. of the aforesaid Treaty."
The Arbitrators, — be it obse^'ved, — do not say for
tlie satisfaction of certain specific claims among those
referred to the consideration of the Tribunal, but of
" all the claims " so referred conformably to the pro-
visions of the Treaty.
166 THE TREATY OF WASHINGTON. *
Now, the practical question which arises is wheth-
er the schedules of claims, which were presented to
the Tribunal as documentary proofs on the part of
the United States, are conclusive, either as to what
they contain or what they do not contain, to establish
rules of distribution under the Award.
This point is settled by what occurred in discus-
sions before the Tribunal.
Great Britain had presented a table, composed in
large part of estimates, appreciations, and arbitrary
or suppositious averages: in consequence of which
the United States presented other tables, to which
the British Agent objected that these tables compre-
hended claimants, and subjects of claim, not comprised
in the actual schedules filed by the United States : to
which the AmeHcan Agent replied by showing that
the Tribunal had before it, in virtue of the Treaty,
all the reclamations made by the United States in
the interest of individuals injured, and comprised un-
der the generic name oiAlahama Claims [le tribunal
reste saisi de la question de toutes les reclamations
faites par les Etats-Unis dans Pinteret des individus
leses, et comprises sous le nom generique de reclama-
tions de VAlahama].
Some discussions on the same subject afterward oc-
curred between Mr. Stiempfli and Sir Alexander Cock-
burn, -which conclusively prove that the result reached
did not accept as binding either the tables presented
by the United States or the deductions therefrom
claimed by Great Britain. The estimate of Mr.
Stoempiii seems to have been the basis of conclusion ;
ALABAMA CLAIMS. 167
and that estimate is founded on dividing the differ-
ence between the American estimate of $14,437,000,
and the JBritish estimate of $7,074,000, the mean of
which is $10,905,000 : w^hich mean does not in any
sort represent the actual claims of the United States.
Indeed, one of the Arbitrators expressly declared
that, in arriving at a conclusion, the Arbitrators were
not to be regarded as making an assessment, or con-
fining themselves to the schedules, estimates, or tables
of either of the two Governments.
Whether the sum awarded be adequate, depends, in
my opinion, on whether distribution be made among
actual losers only and citizens of the United States.
ALIDITY OF THE AWARD.
The principles of the Award are in conformity with
the Rules of the Treaty, which do but embody in pre-
cise language the traditional policy, inaugurated by
Washington with the active support of Jefferson, pro-
fessed by every successive President of the United
States, and authenticated by rej^eated Acts of Con-
gress.
That Great Britain loyally accepts the Award, and
will in due time pay to the United States the amount
awarded, it is impossible to doubt. The Queen's
speech, at the opening of the present session of Par-
liament, not only declares the acquiescence of the
British Government in the Award, but also recom-
mends speedy payment in conformity with the tenor
of the Treaty.
And while prominent members of both Houses,
168 THE TREATY OF WASHINGTON.
such as the Earl of Derby, the Marquess of Salisbury,
and Lord Cairns, in the House of Lords, and, in the
House of Commons, Mr. Disraeli, Mr. Ilorsman, and
others, spoke complainiugly of the Treaty, and of the
new Rules, rather than of the Award, yet Lord Gran-
ville, the Marquess of Ripon, and the Lord Chancel-
lor, in one House, and Mr. Gladstone, Mr. Laing, Mr.
Lowe, and others, in the other House, defended the
Avhole transaction witl^ its results, as alike beneficial
to Great Britain and the United States.
Among the discontented persons is Mr. Laird, who
finds himself characterized as one of those who prefer
"private gain to public honor," and who seems to
think that the Government of that day did not in-
vestigate him and his ftimily so much as it might and
should have done to the end of detecting and expos-
ing the false pretenses with which they covered up
the illeiral destination of the Alabama. Lord Redes-
dale also continues to mourn over the ins^sibility
of the British Government to his partnership argu-
ment, and refuses to be comforted, although the Gov-
ernment did, in fact, present the argument with all
possible seriousness in the British Counter-Case and
elsewhere, in season to have it distinctly responded
to by the Counsel of the United States (Argument,
p. 479 and seq.), and considered or not considered by
the TribunaL
The elaborate speeches of the Earl of Derby and
Mr. Disraeli sufficiently indicate the footing on which
objection to the Treaty and to the Award is to be
placed in England. Little is said in criticism of the
ALABAMA CLAIMS. 1G9
amount awarded as indemnity. Earl Granville, in-
deed, does not fail to remind the Earl of Derby of the
admission made by the latter in the House of Com-
mons, to the effect that the Americans were very
likely to establish their claims, or some of them at
least, and to get their money. This admission on the
part of Lord Stanley evinced his manliness and truth-
fulness. Even the Chief Justice at Geneva was forced
to concede the responsibility of Great Britain for the
acts of the Alabama, and did not very skillfully es-
cape making the same concession as to the Florida.
The marvel is, that Lord Eussell should have so
persistently refused to agree to' any terms of redress,
when he himself could write to Lord Lyons on the
27th of March, 1863, " that the cases of the Alalama
and Oreto were a scandal, and, in some degree, a re-
proach to our laws." I demand of myself sometimes,
in reflecting on the strange obstinacy of Lord Russell
in this respect, as contrasted with the conduct of the
Earl of Derby, the Earl of Clarendon, and Earl Gran-
ville, whether there be not some mystery in the mat-
ter, some undisclosed secret, some unknown moral co-
ercion, to account for and explain the conduct of Lord
Russell ? The extraordinary incident of the failure
of the Government to obtain from the Law Officers
of the Crown any response to the call for their opin-
ion in season to detain the Alabama, — which incident
Sir Roundell Palmer vainly attempted to explain at
Geneva, — would really tend to make one suspect that
some member of the Government more powerful than
himself had defeated those good intentions of Lord
170 THE TREATY OF WASHINGTON.
Russell, witli wliicli he is credited by Mr. Adams.
May it not Lave been, must it not Lave been, Lord
Palmerstou ? Is Earl Russell solely responsible for
the deplorable errors of tLat Administration ? *
* I repeat, in Great Britain issue is not to be made on the
pecuniary part of the Award, but on the construction of the
opinions expressed and the legal conclusions arrived at by the
Tribunal of Arbitration.
The opinions of a^^ the Arbitrators in the case of the Alaha-
wia, including that of the British Arbitrator, are concurrent to
the eftect that, by reason of the mendacity of her builders, the
Lairds, co-operating with corruption, negligence, or stupidity
on the part of the Board of Customs, the British Government
was made responsible for the depredations committed by her
on the commerce of the United States.
But the circumstances of the actual escape of tlie Alabama
reveal a singular imperfection in the administrative mechanism
of the British Government.
On the 23d of July, 1862, the British Government was
aroused from its indifference in regard to the equipment of the
Alabama, by receiving from Mr. Adams, with some other
papers, an opinion of a Queen's Counselor, Mr., now Sir Robert,
Collier, to the effect that, if the Alabama were suffered to de-
part, the Board of Customs and the Government would incur
"heavy responsibility." The case had become urgent. The
Alabama might sail at any moment. Lord John Russell has-
tened to hide himself under the rpbes of the "Law Officers of
the Crown," — that is to say, Sir John ILarding, the Queen's Ad-
vocate-General ; Sir William Atherton, the Attorney-General ;
and Sir Roundell Palmer, the Solicitor-General.
But the oracles did not speak until the 29th of July, and
then advised detention ^ in consequence of which, on the morn-
«"y of i^^(it day, the Alabama, whose managers appear to have
had intimate knowledge of every step taken or not taken by
the Government, departed from Liverpool.
Lord John Russell, in a conference with Mr. Adams on the
31st of July, imputed this misadventure to "the sudden devel-
ALABAMA CLAIMS. 171
It deserves to be noted in this relation that al-
though Edwards and possibly some other of the pub-
opraent of a malady of the Queen's Advocate, Sir John D.
Harding, which had utterly incapacited him for the transaction
of business. This," he added, " had made it necessary to call
in other jmrties [he does not say, others of the Zcno Officers],
whose opinion had been at last given for the detention of the
gun-boat."
The Counsel of the United States, in their Argument, invite
attention to the unsatisfactoriness of this explanation. They
found in the Documents annexed to the British Case eight
opinions of the "Law Officers of the Crown," prior to that of
July 29th, all ofiohich, except one dated June ^Qth, are signed
by Sir. John Harding, and also either by Sir "William Atherton
or by Sir Roundell Palmer. Thereupon, we inferred that the
Queen's Advocate had become sick on or before the 30th of
June ; and we also inferred that " it was not necessary on the
29th of July to call in new parties, but only to call upon the
old." These inferences were legitimate, and were confirmed in
the sequel by the highest authority.
But thereupon the British Arbitrator, after speaking of the
last inference as " an ungenerous sneer," remarks :
"The unworthy insinuation here meant to be conveyed is,
that Lord Russell stated that which was nntrue, — an insin-
uation which will be treated as it deserves by every one who
knows him. It is obvious that Mr. Adams must, in this par-
ticular, have misunderstood his Lordship."
The Chief Justice unconsciously admits that if Lord Russell
said this, "he stated that which was untrue," and expects us to
disbelieve Mr. Adams in order to shield Lord Russell.
I prefer to believe Mr. Adams. Nay, the statement imputed
to Lord Russell by Mr. Adams is in substance reaffirmed and
adopted in the British Case [p. 118].
The senseless prejudice which fills the mind of the Chief
Justice in reference to the L'nited States, their Agent, and their
Counsel, is rendered the more conspicuous here by the fixct
that, when he threw out this " ungenerous sneer" and this " un-
172 THE TREATY OF WASHINGTON.
lie officers, whose negligence or fraud has reflected so
seriously on the British Government, may have been
■worthy accusation" of his against the American Counsel, he had
before him a statement on the subject, presented to the Tribu-
nal of Arbitration by Sir Roundell Palmer, as follows:
" Sir John Harding was ill from the latter part of June, 18G2,
and did not, after that time, attend to Government business.
It was not, however, known, until some weeks afterward, that
he was unlikely to recover; nor did the disorder undergo, till
the end of July, such a development as to make the Government
aware that the case was one of permanent mental alienation.
"Although, when a Law Officer was ill, he would not be
troubled with ordinary business, it was quite consistent with
probability and experience that, in a case of more than usual
importance, it would be desired, if possible, to obtain the ben-
efit of his opinion. Under such circumstances, the papers
would naturally be sent to his private house; and, if this was
done, and if he was unable to attend to them, some delay would
necessarily take place before the impossibility of his attending
to them was known.
"Lord Russell told Mr. Adams [July 31, 1862] that some
delay had, in fact, occurred with respect to the Alabama in
consequence of Sir John Harding's illness. He could not have
made the statement, if the iact were not really so ; because,
whatever the fact was, it must have been, at the time, known
to him. The very circumstance that Sir J. Harding had not
already advised upon the case in its earlier stage might be a
reason Avliy it should be Avishcd to obtain his opinion.
"Sir J.Harding and his wife are both [some years since]
dead; so are Sir W. Atherton [the then Attorney-General] and
his wife ; no information, therefore, as to the circumstances
which may have caused delay, with respect to the delivery at
their private liouse, or the transmission and consideration of
any papers on this subject, can now be obtained from them.
" The then Solicitor-General was Sir R. Palmer, who is able
to state positively that tlie first time he saw or heard of the
papers sent to the Law Officers [i. e., all three Law Officers] on
ALABAMA CLAIMS. 173
dismissed, yet it does not appear that any of the
guilty parties, such as Laird, Miller, Thomas, Prioleau,
the 23d and 25tli or 26th of July, was on the evening of Mon-
day, the 28th of July, when he was summoned by the Attor-
ney-General, Sir W. Atherton, to consider them in consultation,
and when the advice to be given to the Government was agreed
upon." Sir R. Palmer thinks it his duty to add, that " no Gov-
ernment ever had a more diligent, conscientious, and laborious
servant than Sir W. Atherton ; and that it is in the last degree
unlikely that he would have been guilty of any negligence or
unnecessary delay in the consideration of papers of such im-
portance,"
We thus learn that in the latter part of June, as the Amer-
ican Counsel had supposed. Sir John Harding was unable to
attend to the business of the Government. Next, we are in-
formed that the papers miffht have been sent to his private
house, to remain there unattended to ; but it is not asserted that
they were so sent in fact. Nay, we are left to conjecture that
they might have been sent to the house of Sir William Ather-
ton ; hut it is not asserted that they loere. Indeed, Sir Roundell
Palmer speaks of " the delivery at their private house," mean-
ing apparently " houses." Next, we are asked to believe that,
because of the death of " Sir J. Harding and his wife," and that
of "Sir W. Atherton and his wife," no means exist to explain
the fatal delay in this case, by reason of which so much loss
and shame have been brought on Great Britain.
Was it ever before imagined that the death of an Advocate-
General or an Attorney-General, and their loives, should leave
a Government wholly without means of knowledge on such a
subject, or should be put forward to explain such delay of ac-
tion on the part of Ministers ?
Who carried the papers to the house either of Sir John
Harding or Sir William Atherton, or both? Why did Lord
Russell permit six days to elapse without inquiring for the an-
swer to his reference when every hour was pressing for action ?
Who brought the papers away from the place in which they
were, whether the house of Sir J. Harding, or the house of Sir
174 THE TREATY OF WASHINGTON.
or other Englishmen, whose false representations de-
ceived the J3ritish Government, and involved Great
"NY, Atlierton, if they ever went to either ? Why were they not
sent to the house of Sir Rounclell Palmer ? How did they ulti-
mately get into the hands of Sir William Atherton and Sir
lloundoU Palmer?
Now, whatever Sir Roundell Palmer says I believe ; and his
declaration shows that there is no more reason to suppose the
papers were sent, either to Sir J. Harding or to Sir W. Ather-
ton, of which nothing is known, than that they were sent to
Sir R. Palmer himself, to whom Ave know they were not sent,
as he positively declares.
Observe that Sir R. Palmer takes pains to commend the dili-
gence, conscientiousness, and industry of Sir W. Atherton, from
which it is plain to infer that he never received the papers.
Of course, the allusion to the death of him and his wife is as
little to the purpose as that to the death of Sir J. Harding and
his wife, or the insanity of Sir J. Harding.
Another observation. According to Sir Roundell Palmer's
statement, there were two successive references to the Law
Officers,— on the 23d and the 25th or 26th. He implies that
each of these references might have been communicated to Sir
J. Harding and to Sir William Atherton. He does not speak
of the insane Sir J. Harding alone, as Lord Russell does ; but
is careful to make excuse in like manner for the sane Sir W.
Atherton. Now, when he was called in for consultation on the
evening of the 28th, did it not occur to him to inquire why
these sets of papers, each one of which ought to have been
communicated to him at their respective dates, were not so
communicated ? Why speculate on the effects of the insanity
of Sir J. Harding or the integrity of Sir W. Atherton? Why
not as w^ell lay before us conjectural inferences fdunded on the
diligence or uprightness of him, Sir R. Palmer ? Should not the
suppression of the papers as to himself have suggested to hini
that they had been suppressed as to Sir J.Harding and Sir W.
Atherton ?
We revert now to Lord RussclFs statement to Mr. Adams,
ALABAMA CLAIMS. 175
Britain in this perilous controversy with the United
States, have ever been punished in anyway. Indict-
that the delay was caused by the insanity of Sir J. Harding,
tckich made it necessary to call i?i other 2)arties. What other
parties? Why, forsooth, the other two "Law Officers of tlie
Crown " disguised by Lord Russell under the designation
"other parties." But Sir R. Palmer assures us that the pa-
pers [if, indeed, they were sent at all] must have been sent
originally " to the Law Officers, i. e., all three Law Officers."
Lord Russell therefore had no more right to impute the delay
to Sir J. Harding than to Sir W. Atherton ; for, even to this
day. Sir R. Palmer can not say to which of the two, if to ei-
ther, the delay is imputable. And yet Lord Russell implies
that the delay was occasioned by the insanity of Sir J. Har-
ding, while neither he nor Sir R. Palmer ventures to affirm that
the papers were ever sent to Sir J. PLirding.
In view of all these imperfect and irreconcilable statements,
the presumption remains that some person in the Government
had the means of traversing its intention, and withholdinof
these papers from all the three Law Officers until the Alaba-
ma was ready to sail. I do not say Lord Russell was that
person; but I think he knows who it "svas; and if he desires to
vindicate his honor, of Avhich 'ha and the Chief Justice say so
much, he will best do it, not by "sneers" at the American
Counsel, but by disclosing the name of the person in the For-
eign Office who thus betrayed and dishonored the Govern-
ment.
All questions depending on this incident are now termi-
nated. But the incident itself has permanent value as illus-
trating the weakness of the British Government on the side
of its so-called " Law Officers," — that is, busy members of the
Bar, distracted by their private practice, but in whose opin-
ions the Government lives and moves ; who have " papers
sent" to them by the Government in every great emergency,
without their being actual and ever present members of the
Government, like the " Law Officers " of the United States.
Here, in the United States, as in the case of the 3Iauri/, for
176 THE TRExVTY OF WASHINGTON.
ments were, indeed, found against some inferior per-
sons, but not against the responsible authors of the
loss and shame which the Alabama and the Florida
brought on Great Britain. Traces occasionally appear
in the journals of London of some discontent on the
part of tax-payers, who are now called on to respond
to the United States for the dishonorable gains of
the Lairds and the Millers. Expressions of sentiment
in this respect appear in the recent debates in the
House of Commons. Indeed, if an account were taken
of the injury inflicted on the British people by the
actual losses in Confederate bonds purchased in Great
Britain, and the profits lost on bonds of the United
States not purchased there and sold instead in Ger-
many; the losses on British ships and cargoes cap-
tured in attem2:)ting to run the blockade of Southern
ports ; the payment by the Government to the United
instance, "papers are presented to tlie Secretary of State by
the British Minister on the 11th day of October, 1855, alleg-
ing unlawful equipment in violation of neutrality by that ves-
sel; the papers are sent to the Attorney-General on the 12th,
and on the same day orders are given by telegraph to embar-
go the vessel, and are actually executed on the 13th at New
York.
Mr. Fawcett has not without reason called the attention of
the House of Commons to this defect in the conduct of the law
business of the British Government. The reply that the At-
torney or Solicitor General should be allowed to continue in
private business, in order to possess competent knowledge for
the conduct of the business of the Government, is quite pre-
posterous ; it would be just as reasonable to insist that the
Lord Chancellor or the Chief Justice of the Queen's Bench
must continue at the Bar.
ALABAMA CLAIMS. 177
States of indemnity for tlie captures made by the Ala-
hama, the Florida^ and the Shenandoah; the rise in
the cost of cotton and naval stores, and the conse-
quent losses to commerce, to manufactures, and to la-
bor, in Great Britain, occasioned by the prolongation
of our Civil War : in reflectins: on all this, it will be
perceived that the hasty issue of the Queen's Procla-
mation, which gave to the Confederates a standing in
Great Britain, and the means and spirit to continue
hostilities, was an ill-advised measure^ hardly less in-
jurious to Great Britain than it was to the United
States. These are matters which, as questions of di-
plomacy between the two Governments, the Treaty
of Washington and the Award of the Tribunal close
up ; but they remain as historical facts, full of admoni-
tion to all Governments. Discite justitiam moniti.
FILIBUSTER OBJECTIONS.
Do the Rules, as construed by the Decision of the
Treaty, disclose that due diligence, voluntary dili-
gence, in the discharge of neutral duties, has relation
to the exigency, and that the failure therein is not ex-
cusable by the insufficiency of statute means of action?
So thought Washington and Jefferson. They acted,
when no statute existed. It avails nothing to say
that ours is a constitutional government, wdth legal
forms which impede administrative action. If Con-
gress has not imparted to the Executive adequate
powers, — if, for want of such fit legislation, the Exec-
utive can not act effectively in some given cases to
prevent illegal expeditions, — if, in consequence there-
M
178 THE TREATY OF WASHINGTON.
of, the subjects of any friendly State are injured, — if,
in a word, we slioukl be so foolish as to insist on
the privilege of possessing laws designedly imperfect,
and which thus favor the violation of law, and w^hicli
are insufficient to enable the President to discharge
the international obligations of the United States, —
then it is proper that we should pay for the enjoy-
ment of such a privilege by answering to any friendly
Power for the injurious consequences of our self im-
posed impotency to perform the necessary duties of
an independent sovereign State.
There is no difficulty whatever in the question. . If,
on the one hand, in the case of war between two
other Powers, the United States desire and intend to
be neutral, it is to be hoped they will not suffer
themselves to be misled by the interests of some ship-
builders, or the wild schemes of some band of advent-
urers, foreign or domestic, or even by the sentiment
of sympathy for this or that foreign cause, into per-
mittinof violations of the law of the land and of the
rights of other States. If, on the other hand, the
United States at any time desire or intend to go to
war with some foreign Power, whether for induce-
ments of sentiment or for objects of ambition, it is to
be hoped they will manfully say so, in the face of the
world, and will not sneak into national hostilities by
means of the expeditions or equipments of private
persons, citizens or foreigners, conducting war in dis-
guise while the Government falsely pretends to be at
peace. All such "national activities," — that is, acts
oi fiUhiisterisin, — whether fi-audulently encouraged or
ALABAMA CLAIMS. 179
insufficiently discouragxl by any Government, are in-
deed fettered by the three Rules, as they were al-
ready, so far as morality or law could do it, being
classed by statute with piracy, perjury, arson, murder,
and other kindred " Pleas of the Crown." True, there
is tendency of oj^inion in the United States, as there
is in Great Britain, to think that all rebellion is pre-
sumptively wrong at home, and that all rebellion is
presumptively right every where else; but that is a
theory which has its inconveniences. In a word, there
is no possible view of the subject in which JiUbustep-
ism is not a crime and a shame, without even the
mean excuse of possible but dishonorable benefits to
the United States. At all times, under all adminis-
trations, private equipments in our ports, for the pur-
pose of hostilities against any country with which we
were at peace, have been treated as what they are,
criminal violations of the law of the land and of the
law of nations. Statesmen, jurists, and tribunals are
all of accord on this point. Contracts for such equip-
ments are " so fraught with illegality and turpitude
as to be utterly null and void." ..." There can be no
question of the guilt and responsibility of a Govern-
ment Avhich encourages or permits its private citizens
to organize and engage in such predatory and unlaw-
ful expeditions against a State with Avhich that Gov-
ernment is at peace." ..." This i:)rinciple is univers-
ally acknowledged by the law of nations. It lies at
the foundation of all Government. It is, however,
more emphatically true in relation to citizens of the
United States." Such was the doctrine of the United
ISO THE TKEATY OF WASHINGTON.
States of old: siicli is their cloctriDe now, iieitber
more nor less by reason of our negotiation witli Great
Britain.
SALE OF ARMS NOT AFFECTED BY THE TREATY OR THE
AWARD.
Some persons Lave supposed that the Treaty affects
the question of the sale of arms or munitions of war
to a Belligerent. That is an error. Wherever, as be-
tween the parties to the Treaty, the sale of arms was
lawful before, it is lawful now ; wherever it is unlaw-
ful now, it was unlawful before. That is a question
to which the action of the German Embassador in
Great Britain durino; the late war between France
and Germany has drawn the attention of all Europe,
and which is certain to acquire importance in any
future great war ; but it is not touched, in fact, by the
Treaty of Washington, and did not come before the
Tribunal of Geneva.
QUESTION OF SUPPLIES OF COAL.
One specific ol)jection to the Rules of the Treaty,
and only one, of any apparent force, has passed under
my observation, that of the Austrian statesman, Count
von Beust : the suggestion, namely, as to the second
Kule, relative to coaling and refitting in neutral i^orts^
which, it is alleged, " gives to England, through her
possession of neutral stations in all parts of the world,
a palj)able advantage over other States, which have
not the same facilities at command."
This ol)jection is one of apprehension, rather than
ALABAMA CLAIMS. ISl
of fact. When the United States and Great Britain
shall, in conformity with the Treaty, bring the new
Rules to the knowledge of other maritime Powers,
snch Powers will of course present for consideration
all proper objections or qualifications to those Rules.
Count von Beust goes on to speak of the declara-
tion made by Austria, Prussia, and Italy in 1866,
which indicates that he was considering the subject
in the relation of contrahcmd raiher than of sim2:)le re-
fitting in neutral ports.
But the precise question of the supply of coal in
neutral ports is not prejudged by the Treaty of
Washington, nor by the opinions of the Tribunal of
Arbitration. The United States are quite as much
interested in having access to supplies of coal "at neu-
tral stations in all parts of the world " as Austria, or
Prussia, or Italy ; and we may presume that Count
Sclopis did not fail to reflect on the interests of Italy
in this behalf.
One of the " Considerants" of the Award had for
its special object to prevent misconstruction of the
second Rule. We quote it as follows :
" In order to impart to any snpplies of coal a character in-
consistent with tlie second Rule, prohibiting the use of neu-
tral ports or Avaters as a base of naval operations for a Bellig-
erent, it is necessary tliat tlic said supplies should be connect-
ed with special circumstances of time, of persons, of place,
which may combine to give them such character."
Count Sclopis explains the force of the Decision as
follows :
" Quant a la question de I'approvisionnement et du charge-
ment de charbon,je ne saurais la traiter que sous le point de
1S2 THE TREATY OF WASHINGTON.
vue d'un cas connexe avec I'lisago d'une base cl'operations na-
vales dirigees centre I'un des Belligt'i-ants, ou cVun cas flagrant
de contrabande de guerre. Je iie dirai pas que le simple fait
d'avoir allouc une quantite de charboii plus forte que celle iie-
cessaire aux vaisseaux pour rcgagner le port de leur pays le plus
voisin, constitue a lui seal uii grief suffisant pour donner lieu a
une indcmnite. Ainsi que le disait le Chancelier d'Angleterre,
le 12 Juin, 1871, a la Chambre des Lords, I'Angleterre et les
Etats Unis se tiennent cgalement attaches au principe pratique
qu'll n'y a pas violation du droit des gens en fouruissant des
armes aux Belligerants. Mais si cet excedant de proportiou
dans I'approvisionnement de charbon vient se joindre a d'autres
circonstances qui raarquent qu'on s'en est servi comrae d'une
veritable res hostilis, alors il y a infraction a la deuxieme llegle
de I'Article VI. du Traite. C'est dans ce sens aussi que le menie
Lord Chancelier expliquait dans le discours precite la portee
de la derniere parte de la dite Regie."
The same point is treated by Mr. Adams as fol-
lows :
" The supply of coals to a Belligerent involves no responsi-
bility to the Neutral, when it is made in response to a demand
presented in good Ihith, Avitli a single object of satisfying a le-
gitimate purpose, openly assigned.
"On the other hand, the same supply does involve a respon-
sibility if it shall in any way be made to a})pcar that the con-
cession was made, either tacitly or by agreement, with a view
to promote or complete the execution of a hostile act.
" Ilence I perceive no other way to determine the degree of
the responsibility of a Neutral in these cases, than by an exam-
ination of the evidence to show the intent of the grant in any
specific case. Fraud or falsehood in such a case poisons every
thing it touches. Even indifference may degenei'ate into will-
ful negligence, and that will impose a burden of proof to excuse
it before responsibility can be relieved."
Mr. Adams, it will be noted, dwells on the ques-
tion of intent in this matter, as he does, indeed, in
ALABAMA CLAIMS. 183
each one of Lis opinions, to tlie contrary of the line
of reasoning followed by the British Arbitrator.
Finally, in assenting to the Decision, tbe Viscount
of Itajuba remarked that, " -with regard to the supply
of coal, he is of opinion that every Government is
free to furnish to the Bellio'erents more or less of
that article."
Thus, the tenor of the Decision of the Tribunal,
and the commentaries of the Arbitrators thereon,
combine to show that the second Rule can not have
the effect ascribed to it by Count von Beust.
Besides which, the latter greatly errs in supposing
that the numerous naval stations possessed by Great
Britain in different parts of the globe give to her so
much advantage to the prejudice of other maritime
Powers. She pays dearly for such benefits as she
herself derives from those establishments, in the cost
of maintaining them, whether in peace or in war;
and if, w^hile in a state of neutrality herself, she re-
fuses hospitality to others [and she must do it to all,
if she does to one], she forces other Powers to ac-
quire similar establishments to be conducted with
equal exclusiveuess, or she is constrained to incur the
risk of the charge of partiality as between several
Belligerents. Hence, it is not for the interest of oth-
er Powers to overstretch the responsibilities of Great
Britain in this respect; and it is for her interest to
deal justly and impartially with such other Powers.
Great Britain was not condemned by the Tribunal
because of the supply of coals to Confederate cruisers
in her Colonial ports, nor merely because those cruis-
184 THE TREATY OF WASHINGTON.
ers were permitted to pervert the privilege of hospi-
tality into making a base of operations of Nassau or
of Melbourne. The recognized fault in the matter
of the Shenamhalt was mainly the augmentation of
her crew at Melbourne, and the addition of equip-
ments, without w^hich she could not have oj^erated as
a cruiser in the North Pacific. In the case of the
xllahama, and especially that of the Florida^ the
fault was in allowing them to come and go unmolest-
ed, and even favored, in the Colonial ports, when the
British Government could no longer pretend to be
ignorant of their originally illegal charactei', nay,
when it was now fully aware of what Mr. Adams
calls the "continuous, persistent, willful, flagrant false-
hood and perjury," and the "malignant fi-aud," which
attended the equipment of the Confederate cruisers
in Great Britain. It Avas this class of facts, and not
any such secondary consideration as the supply of
coal, which turned th^ scale against Great Britain in
the opinions of the Arbitrators.
No: neither the Treaty of Washington, with its
Rules, nor the Decision of the Tribunal of Geneva,
has inaugurated any new policy of neutrality in the
United States, nor created for them any rights or
any duties not previously ppssessed by and incum-
bent on the Government.
WHAT THE UNITED STATES HAVE GAINED BY THE AWARD.
Wliat, then, it may be asked, have the United
States gained T)y the Treaty of Washington, and by
the Arbitration ?
ALABAMA CLAIMS. 185
■ We liave gained the vindication of our rights as
a Government ; the redress of the wrong done to our
citizens ; the political prestige, in Europe and Amer-
ica, of the enforcement of our rights against the most
powerful State of Christendom; the elevation of
maxims of right and of justice into the judgment-seat
of the world ; the recognition of our theory and poli-
cy of neutrality by Great Britain ; the honorable con-
clusion of a long-standing controversy and the ex-
tinction of a cause of war between Great Britain and
the United States ; and the moral authority of hav-
ing accomplished these great objects without war, by
peaceful means, by appeals to conscience and to rea-
son, through the arbitrament of a high international
Tribunal.
That war, the great curse and scourge of mankind,
will utterly cease because of the present successful
instance of international arbitration, nobody pretends.
Questions of national ambition or national resent-
ment, — conflicts of dynastic interest, — schemes of ter-
ritorial aggrandizement, — nay, deeper causes, resting
in superabundant population or other internal facts
of malaise, misery and discontent, — will continue to
produce wars to the end of time.
" Non, sans doute," says M. de Mazade, — speaking of the
acts of the Tribunal, — " la guerre n'est point bannie de ce
monde, elle n'est pas remphacee par un tribunal de concilia-
tion faisant rentrer an fourreau los epees impatientes d'en sor-
tir: ce n'est pas moins un evenement caracteristique et heu-
reux que le succes de ce tribunal d'equite, de cette sorte de jus-
tice Internationale." ...
We, Great Britain and the United States, have in
ISG THE TREATY OF WASHINGTON.
this matter shown that even a question affecting, or
supposed to affect, national honor, may be settled by
arbitration ; and if we have not effected the establish-
ment of international arbitration as the imiversal
substitute for war, we have co-operated to prove by
our example that the largest possible questions be-
t\v"een contending Governments are susceptible of
being settled by peaceful arbitration. As Lord Rip-
on truly says, in so doing, we have taken a great
step in the direction of the dearest of all earthly
blessings, the blessing of peace.
Let us hope that other nations may follow in our
footsteps. Great Britain, to her honor be it said, has
been true in this respect to the engagements she en-
tered into at the Conferences of Paris. If we of the
British race are more capable of reasoning in the
midst of passion than others, then ours be the glory.
In all this, the sacrifices of feeling have been on
the side of Great Britain. We owe the acknowleds:-
ment to her, in all sincerity. Standing, as we now
do, side by side, with every cloud of offense removed
from between us, — two peoples, as Mr. Gladstone has
well said, on whom the seal of brotherhood has been
stamped by the hand of the Almighty himself^ — we
may proudly point in unison to the homage ^ve have
both rendered to the cause of peace and humanity
in the hall of arbitration at Geneva.
MISCELLANEOUS CLAIMS. 187
CHAPTER m.
MISCELLANEOUS CLAIMS.
TREATY PROVISIONS.
The Treaty goes on to provide, in Articles XIL to
XVII. inclusive, that all claims on the part of corpo-
rations, companies, or private individuals, citizens of
the United States, upon the Government of Great
Britain, arising out of acts committed against the
persons or property of citizens of the United States,
during the period between April 13, 1861, and April
9, 1865, inclusive, not being claims growing out of the
acts of the vessels referred to in the previous articles
of the Treaty ; and all claims, with the like excep-
tion, on the part of corporations, companies, or private
individuals, subjects of Great Britain, upon the Gov-
ernment of the United States, arising out of acts com-
mitted against the persons or property of subjects of
Great Britain during the same period, shall be refer-
red to three Commissioners to be appointed, one by
each of the two Governments, and the third by the
two Governments conjointly: these Commissioners
to meet at Washington, there to hear, examine, and
decide upon such claims as may be presented to them
by either Government.
I The stipulation, it will be perceived, does not cover
1S8 ■ THE TREATY OF WASIIINGTOX.
all existing claims of citizens or subjects of the one
Government against the other, but only claims for
acts committed against persons or property on either
side between certain defined dates, — that is, during
the pendency of actual hostilities in the United States.
It is a provision, supplementary in effect to the pre-
ceding clauses of the Treaty, conceived in the appar-
ent intention of thus closing up all subjects of conten-
tion growing out of our Civil War.
The Commission was duly organized by the ap-
pointment of Mr. Kussell Gurney, Commissioner on
the part of Great Britain, and Mr. James S. Frazer,
on the part of the United States, and of Count Corti,
Envoy Extraordinary and Minister Plenipotentiary
of Italy, Commissioner named conjointly by the two
Governments.
The Treaty contains detailed provisions for the
prosecution of the business before the Commission, to
be completed within two years from the day of their
first meeting; and the contracting parties engage to
consider the decision of the Commissioners absolutely
final and conclusive on each claim decided by them,
— to give full effect to such decision without any ob-
jection, evasion, or delay whatsoever, — and to consid-
er every claim comprehended within the jurisdiction
of the Commissioners as finally settled, barred, and
thenceforth inadmissiljle, fi'om and after the conclu-
sion of the proceedings of the Commission.
The Commissioners assembled at Washington on
the 26tli of September, 1871, and are assiduously en-
fjaijed in the determination of the claims submitted
MISCELLANEOUS CLAIMS. 189
in conformity with the Treaty, having before them as
Agent for the United States, Mr. Robert S. Hale ; as
Agent for Great Britain, Mr. Henry Howard; with
Mr. James M. Carlisle as Counsel, and Mr. Thomas C.
Cox, Secretary to the Commission.
The Commission will undoubtedly complete its du-
ties within the time prescribed by the Treaty.
PRIVATE CLAIMS ON GOVERNMENTS.
The intimate relation, which exists between the
different States of Christendom at the present time,
has resulted in the necessity of providing special
means for adjudicating the private claims of the citi-
zens or subjects of one Government against another.
It is one of the incidents of the gradual tendency of
modern nations to substitute reason for force, and ar-
bitration for war.
The subject has not yet obtained from publicists
and legislators the attention which, by reason of its
great practical importance, and its intrinsic interest
as an element of civilization, it deserves. It may
well receive consideration here, both in itself and in
its relation to other congenial stipulations of the
Treaty of Washington.
All the Powers of Christian Europe and America
are of accord, and stipulate in their treaties of amity
and commerce, to permit to one another's subjects
free ingress, residence, sojourn, and traffic in their
respective territories, on the same footing with the
inhabitants thereof, and with subjection to the lavv-s
of the land, more or less complete, according to local
190 THE TREATY OF WASHINGTON.
regulations and to the tenor of treaties. Total exemp-
tion from the local law is maintained only by the
subjects of Christian States in countries outside of
Christendom.
In most of the countries of Christendom forei2:ners
are protected in their jiersonal rights equally with
the inhabitants, and, if wronged, have access to the
tribunals for redress, even against injuries by the lo-
cal Grovernmeut itself.
Generally, indeed, it may be said, with truth, that
the rights of a foreigner are better protected than
those of the inhabitants of the country itself; for, in
addition to the tribunals of the country where he so-
journs, the foreigner has the benefit of the Minister
and Consuls of his own country.
Of this favor the foreigner has occasional need, it
is true; but it is a privilege susceptible of great
abuse, by reason of the extravagant pretensions occa-
sionally made by persons who may suffer any real or
apparent wrong, and Avho are prone to elevate trivial
grievances into international questions, to the annoy-
ance of all Governments, and to the peril of the pub-
lic peace. Most of such subjects of complaint are
capable of being settled by the local tribunals, and
ought to be. The laws of Rome lie at the founda-
tion of the jurisprudence of all Europe and America
alike; the forms of judicial administration are sub-
stantially similar in all the States of both Continents;
and in many of the cases of alleged wrong to foreign-
ers, and of call for diplomatic intervention, the affair
is one which, if at home in his own country, the party
MISCELLANEOUS CLAIMS. 191
would never dream of withdrawing: from tlie courts
of law to make the alleged injury a subject of claim
against his Government. And it would greatly tend
to the harmony of States and the peace of the world,
if treaty stipulations were entered into in order to di-
minish the extent and restrain the frequency of such
private claims on foreign Governments.
In the present condition of things, every Govern-
ment is forced by private importunity into becoming
too often the mere attorney of the claims of its citi-
zens against foreign Governments, in matters where
the party aggrieved, if aggrieved, has ample means of
redress before the tribunals, and where his grievance
does not in the slightest degree affect the honor of his
own Government.
These observations apply especially to incidents
occurring in times of peace, in which times the acts of
willful injury, done by any Government to foreigners
sojourning under its treaty protection, are few in
number compared with the injuries done to its own
subjects or citizens, by any, the best administered
Government either of Europe or America. On such
occasions, the injured party not seldom exaggerates
his case, and, by aj^peals to the sentiment of citizen-
ship in his own country, seeks to force his Govern-
ment to interpose in his behalf, so as to obtain for him
summary redress by diplomatic means in disregard
of the local law.
Meanwhile, in times of war, the resident or sojourn-
ing foreigner is still more solicitous to be exemjit from
those ordinary consequences of military oj)eratious to
192 THE TREATY OF WASHINGTON.
which the inhabitants of the country are suliject, and
his solicitude is in proportion to the injuries to which
he is thus exposed. This fact became conspicuous
in the late war between Germany and France, and led
to many complaints on the part of British subjects
voluntarily residing at the seat of war, which con-
strained Lord Granville to disabuse them of the idea
that armies in the field were to fold their arms and
cease to act, lest by chance they might, in the heat of
action, disturb the peace of mind, or damage the 2)rop-
erty or person, of some commorant Englishman.
Incidents of this nature are most of all frequent in
times of civil war, especially in those countries of
Spanish America, where militarism prevails, and the
regular march of civil institutions is interrupted by
military factions headed by generals, in contention
with one another, and with the constituted authorities
of the Government.
For injuries thus done to its subjects, residing or
sojourning in a foreign country, every Government
possesses of course the right of war or of reprisals,
which, in effect, is the same thing, being the adoption
of force as a remedy in lieu of reason : a method of
redress for private injuries, which, however common
formerly, is contrary to all the prevalent notions of
international justice in our day.
Hence, while it is the right and duty of every Gov-
ernment to interpose on proper occasion, through its
Ministers or Consuls, or otherwise, on the haj^pening
of any injury to its citizens or subjects abroad, yet
the recurrence to force as a means of redress is admis-
MISCELLANEOUS CLAIMS. 193
sible only in very rare and exceptional cases of ag-
gravated wrong committed by the authorities of tlie
foreign Government.
The Government aggrieved in the person of its
subject obtains, in many cases, the redress of the par-
ticular injury by more or less earnestness of diplo-
matic remonstrance.
If, however, redress be delayed for some sufficient
cause to excuse the delay, and cases of alleged injury
are thus accumulated, indemnity for the injuries done
will be procured by diplomatic negotiation, if the in-
jured Government be patient and persistent; for,
much as there may be of evil in the world, and fre-
quently as nations depart on occasion from the rule
of right, yet, after all, the sense of justice among men
and the conscience of nations prevail to such extent
that, in the end, in most cases, mere appeals to reason
suffice to obtain voluntary reparation at the hands of
the injuring Government.
Thus, without war, and without threat of war, the
United States have obtained, by treaty, payment of
indemnity, for injuries to citizens of the United States,
from other Governments, such as France, Denmark,
the Two Sicilies, Spain, with provision for the distri-
bution of such indemnity, among our citizens, by our-
selves, through the agency of commissioners appointed
under Act of Congress..
USEFULNESS OF MIXED COMMISSIONS.
In other controversies of this class between the
United States knd foreign Governments, where agree-
N
194 THE TREATY OF WASHINGTON.
ment as to the nature of the injury or amount of
the indemnity could not be arrived at, mixed commis-
sions have been established by treaty in numerous in-
stances, to judge and decide the questions at issue be-
tween the two contending Governments.
On three several occasions, within a brief period,
the United States and Great Britain have had re-
course to the international tribunal of a mixed com-
mission for settlement of unliquidated claims of citi-
zens or subjects of one country against the Govern-
ment of the other, namely, by the Treaty of July 26,
1853; by that of July 1, 1803; and by the present
Treaty of Washington. Other examples of this occur
in our earlier history. And the United States have
had treaties of a similar character "with the Mexican
Republic, with the Republic of New Granada, with
that of the United States of Colombia, and with the
Republics of Costa Rica, Venezuela, and Peru.
An eminent French publicist, M. Pradier Fodere,
observes :
" L' arbitrage, tres-usite dans le moy en-age, a ete
presque entierement neglige dans les temps modernes;
les exemples d'arbitrage oflerts et acceptes sont deve-
nus de plus en plus rares, par I'experience des incon-
venients qui semblent etre presque inseparables de ce
moyen, ordinairement insuffisant par le defaut d'un
pouvoir sanctionnateur. Lorsque les grandes puissan-
ces constituent im tribunal arbitral, ce n'est ordinaire-
ment que ponr des objets d'interet secondaire."
As to the absence of any power to compel observ-
ance of the award of an international tribunal, it may
MISCELLANEOUS CLAIMS. 195
suffice to say that the "pouvoir sanctionnateur " is in
the treaty of arbitration, Avhich nations are quite as.
likely to observe as they are to observe any other
treaty. It is that question of good faith among na-
tions upon which the peace of the world stands.
Undoubtedly, cases occur in which the internation-
al discord or debate turns on questions where the na-
tional honor or dignity is directly in play, and where
the controversy becomes a matter of personal senti-
ment ; and in such cases it may not be easy to ob-
tain an agreement to arbitrate. Such, indeed, was the
view of Earl Kussell, as we have already seen, with
reference to the imputed want of dile diligence of the
British Government in the matter of the Alahama
and the Florida. But the influence of time, which
softens sensibilities and resentments, and the preva-
lence at length of the mutual desire of peace, may
overcome even the most serious apparent obstacles
to friendly arbitration, as the conduct of Great Brit-
ain in expressing her regret for the incidents of which
the United States complained, and in referring the
whole subject to the Tribunal at Geneva, seems to
demonstrate.
OTHER FORMS OF* ARBITRATION.
Many instances have occurred in the present centu-
ry of another form of arbitration, differing materially
from mixed commissions, namely, submission to a sin-
gle arbiter or tribunal, with complete 'authority to
decide the subject of controversy.
Thus, in 1851, France and Spain referred to the ar-
196 THE TREATY OF WASHINGTON.
bitration of the King of the Netherlands the question
of responsibility for certain prizes, an incident of the
intervention of France in the aftairs of Spain in the
time of Ferdinand A^II. In 1827, Great Britain and
the United States referred a question of boundary to
the King of the Netherlands. In 1843, France and
England submitted a question of indemnities claimed
by British subjects to the King of Prussia. In 1844,
France and Mexico submitted a similar question to
the Queen of Great Britain. In 1852, the United
. States and Portugal submitted to the Emperor of the
French the question of the responsibility of Portugal
for the destruction of an American letter-of-marque
by the English in the port of Fayal. In 1858, the
United States and Chile submitted a question of pri-
vate loss to the decision of the King of the Belgians.
In 1862, a difference between some English officers
and local Brazilian authorities was submitted to the
arbitration of the King of the Belgians by Great
Britain and Brazil. In 1867, Great Britain and Port-
ugal submitted a question o^ territory to the decision
of the United Stales. In 1870, Brazil and the United
States referred a question of damages to the decision
of Sir Edward Thornton, the British Minister. In
1864, Great Britain and Peru submitted a question
of private claims to the judgment of the Senate of
the free city of Hamburg.
We shall presently have to speak of a fact of the
same class in the question referred by Great Britain
and the United States to the Emperor of Germany
by the Treaty of Washington.
MISCELLANEOUS CLAIMS. 197
One of the earliest of our conventions of tbis nature
was contained in the Treaty of 1818, in execution of
an article of the Treaty of Ghent [1815], by which
the United States and Great Britain stipulated to re-
fer a certain question of indemnities to some friend-
ly Sovereign or State. Afterward the Emperor of
Russia was selected as such arbitrator, and rendered
an award against Great Britain, in general terms, by
reason of which it became necessary to provide by a
second treaty [1822] for the appointment of a com-
missioner and arbitrator on the part of the United
States, and a commissioner and arbitrator on the part
of Great Britain, to assemble at Washington and as-
sess damages under the umpirage of the Minister of
the mediating Power accredited to the United States.
This example is curious and instructive, seeing that
the debtor Government, so to speak, — Great Britain, —
in order to give effect to its engagement at Ghent
entered into three successive international comj^acts
with the United States, — one to appoint an arbiter,
another to name him, and a third to give effect to his
award. There could be no better illustration of the
moral force of treaties of arbitration in the estimation
of modern States.
TENDENCY OF REASON AND JUSTICE TO PREVAIL OVER
FORCE.
These many examples, it seems to me, tend to man-
ifest the increasing desire of modern nations to ter-
minate all their controversies, if possible, by friendly
means rather than by force. Where they can not
198 THE TREATY OF WASHINGTON.
agree between themselves, they establish a mixed
commission or appoint an arbiti*ator or arbitrators.
On such occasions the contending parties do not se-
lect an arbitrator in consideration of his being power-
ful, like an Emperor of the French or an Emperor of
Germany, but because of confidence in the impartial-
ity of the arbiter, as when great States refer a ques-
tion to relatively feeble Sovereigns, like the King of
the Netherlands or the King of the Belgians, or to
the Senate of a little Republic like Hamburg, or even
to five individual judges, like the Arbitrators of Ge-
neva, or to a single person like Sir Edward Thornton.
Nay, in further proof of the availableness of this
method of settling national disjDutes, we have Great
Britain and the United States, in spite of their own
particular quarrel, each trusting the other in a ques-
tion between either of them and another Power.
The same disposition of mind on the part of mod-
ern Governments, that is, the assumption that a se-
lected international judge or arbitrator will decide
impartially, whether he be pow^erful or weak, and of
whatever nationality he may be, appears in the con-
stitution of mixed commissions. Generally these
commissions consist of two commissioners, one aj>
pointed by each of the resi:>ective Governments, with
authority given to the commissioners to select an um-
pire to determine any differences which may arise be-
tween them ; or sometimes tlie mnpire is agreed on
by the two Governments.
Now, in the very heat of our late controversies with
Great Britain, we consented to accept the British
MISCELLANEOUS CLAIMS. I99
Minister, Sir Frederic Bruce, as umpire between us
and the United States of Colombia. And at tlie same
period of time, Great Britain accepted Mr. B.R. Curtis,
of Massachusetts, as umpire under the Treaty for set-
tling the claims of the Hudson's Bay Company against
the United States. And in this case, be it remember-
ed, the Commissioners, just men both. Sir John Eose
and Mr. Alexander S.Johnson, agreed on their award
without troubling Mr. Curtis.
Under the previous claims' Treaty between Great
Britain and the United States, the two Governments
in the first instance agreed on ex-President Van Buren
as umpire, and, on his declining, they chose Mr. Bates,
an American Banker residing: in London.
Under the claims' Treaty between the United States
and New Granada, an American, Mr. Upham, of New
Hampshire, was umpire ; and another American, Dr.
Francis Lieber, of New York, under the recent Treaty
between the United States and the Mexican Eepublic.
Strongest of all is the case of the Treaty between
Paraguay and the United States, which submitted
their controversy to an American citizen, Mr. Cave
Johnson, of Tennessee, as sole arbiter, and he decicted
ao-ainst the United States.
Is it possible to misapprehend the moral of'such
facts ? In all these various aspects of the subject, do
we not perceive the sense of justice tending every
day to penetrate deeper and deeper into the councils
of nations, and the voice of reason, of which interna-
tional laxo is the expression, influencing more and
more the action of Governments ?
200 'JL'ii^ TREATY OF WASHINGTON.
THEORY OF ARBITRATION.
Sovereign States, it has been said, should be trust-
ed to do justice spontaneously, and without humbling
themselves to be judged by an arbitrator. It might
with just as good reason be said that all men should
be trusted to do justice spontaneously, and without
humbling themselves to be judged by a tribunal.
The experience of mankind contradicts each of these
propositions. Diverse views of the facts, and of the
rules of right applicable to the facts, to say nothing
of prejudice, passion, pride of opinion, are inseparable
from human affairs, because they are conditions of
the human mind, influencing the actions as w^ell of
men in political society as of individual men. Ad-
mit that in a majority of cases reason will prevail to
prevent or to settle controversies between individual
persons ; but reason does not suffice in all cases, and
it is for such exceptional cases that tribunals of jus-
tice exist, without which, in the attempt of men to
right themselves, society would be dissolved into a
state of anarchy and bloodshed. The considerations
which recommend the establishment of tribunals hav-
ing authority as such within the limits of each sov-
ereigli State, are still more cogent when applied to
sovereign States themselves, which, having no com-
mon superior, must of necessity determine their dif-
ferences by war, unless they accept the mediation of
some friendly Power to restore concord between them,
or unless they recur to arbitration, by mutual consent,
in one form or another accordincr to circumstances, as
D 7
MISCELLANEOUS CLAIMS. 201
the United States and Great Britain Lave done by tlie
Treaty of Washington.
So many examples of arbitration between Govern-
ments, within a recent period, contribute to prove that
M. Pradier Fodere errs in assuming that in our day
" offers of arbitration made and accepted are becoming
more and more rare." On the contrary, this method
of terminating national differences may now be re-
garded as permanently fixed in the international juris-
prudence of Europe and America.
WISDOM OF THE PRESENT MIXED COMMISSION.
I conclude, therefore, that the United States act-
ed wisely in submitting the claims of British sub-
jects to a mixed commission by the Treaty of
Washino;ton.
Some persons in the United States, with disposi-
tion to criticise the Treaty of Washington, have sug-
gested that this Commission may result in finding a
large balance of many millions due from the United //
States to Great Britain.
I think the supposition is altogether gratuitous,
and that no such considerable balance will be found
to be due. If it should be so, however, the fact will
in no sort detract from the credit belono-ius: to the
Treaty. If the Government of the United States, in
the course of its efforts to suppress insurrection, shall
have done injury to the subjects of Great Britain for i
which we are justly responsible by the law of nations, ■!"
it is altogether proper that we should pay whatever il
indemnity therefor may be found due by the judg-
202 THE TREATY OF WASHINGTON.
ment of a lawfully constituted international tribunal,
sucli as the present Commission.
Citizens of the United States are not slow to in-
volve the intervention of their Government in behalf
of any American injured in the progress of civil war
in other countries, and on such occasions to talk loud-
ly of " outrages to citizens :" let us do as we would
be done by, and concede that Great Britain is entitled
to judicial examination of the cases of her subjects
alleging injuiy by the occurrences of civil war in the
United States.
THE NORTHWESTERN BOUNDARY - LINE. 203
CHAPTER IV.
THE NORTHWESTERN BOUNDARY- LINE.
PROVISIONS OF THE TREATY.
The Articles of tlie Treaty from XXXIV. to XLIL
inclusive dispose of the long-standing disj:)ute be-
tween the United States and Great Britain regarding
the true water-line by which the Territory of Wash-
ington is separated from Vancouver's Island.
The subject of the controversy, and the agreement
for its termination, are set forth as follows :
" 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 forty-ninth
parallel of north latitude up to which it had already been as-
certained, should be continued westward along the said paral-
lel of north latitude 'to the middle of the channel which sepa-
rates the continent from Vancouver's Island, and thence south-
erly, through the middle of the said channel and of Fuca Straits,
to the Pacific Ocean ;' and whereas the Commissioners appoint-
ed by the 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 Gov-
ernment of the United States claims that" it should be run
through the Canal de Haro, it is agreed that the respective
204 THE TREATY OF WASHINGTON.
claims of the Government of the United States and of the Gov-
ernment of Ilcr Britannic Majesty shall be submitted to the
arbitration and award of His Majesty the Emperor of Germany,
-who havino- regard to the above-mentioned Article of the said
Treaty, shall decide thereupon, finally and without appeal,
which of those claims is most in accordance with the true in-
terpretation of the Treaty of June 15, 1846."
Subsequent articles prescribe that the question
shall be discussed at Berlin by the actual diplomatic
Kepresentatives of the respective Governments, either
orally or by written argument, as and Avhen the Arbi-
trator shall see fit, either before the Arbitrator him-
self, or before a person or persons named by him for
that purpose, and either in the presence or the absence
of either or both Agents.
A pret^ious arrangement in a treaty negotiated by
the Earl of Clarendon and Mr. Johnson for referring
the subject to the arbitration of the President of the
Swiss Confederation had been rejected by the Senate
of the United States, not on account of any objection
to the particular arbitrator, but for other considera-
tions.
There is good cause for the suggestion of Lord Mil-
ton that the Senate of the United States considered
our " right to the disputed territory so extremely clear
that it oujxht not to be submitted to arbitration."
That, indeed, is the tenor of Senator Howard's speech
on the subject, the publication of which was author-
ized by the Senate. Such a view of a question of
right may be admissible on the part of a private in-
dividual, who, in a clear case, may prefer a suit at law
in the courts of his country to arbitration ; but it is
THE NORTHWESTERN BOUNDARY - LINE. 205
wholly inapplicable to nations, whicb, if tliey can not
agree and will not arbitrate, have no resource left
save war.
But this was not the only consideration which in-
duced the Senate to refuse its assent to that treaty.
There were objections to the form of submission.
HISTORY OF THE QUESTION.
The controversy to which these treaties refer is one
of the leavings of the last war between the United
States and Great Britain, and has its roots far back in
the circumstances of the primitive colonization of
North Amei'ica by Europeans.
When the Kings of the little island of Britain, in
virtue of some of their subjects having coasted along
a part of the Atlantic shores of America, assumed to
concede to the Colonies of Massachusetts and Virginia
grants of territory extending by parallels of latitude
westward to the Pacific Ocean, and covering the un-
explored immensity of the Continent, and on the prem-
ises of sovereignty and jurisdiction as good as their
title to the manor of East Greenwich in Kent, — it
was only men's universal ignorance of geography
w^hich saved the act from the imputation of wild ex-
trava2;ance.
But such grants, and the pretensions on which they
were founded, were the logical consequence of the
theories of colonization and conquest pursued in the
New World by Spain, Portugal, and France, as well
as England, and formed the basis of the power of
Great Britain in North America, and eventually of
206 THE trp:aty of Washington.
that of the United States. It was the assumption
that discovery by any European State, followed by
occupation on the sea-coast, carried the possessions
of such State indefinitely landward until they met
the possessions of some other European State.
At the same time, France had entered into America
by the waters of the St. Lawrence, had ascended that
river to the Lakes, had then descended by the Missis-
sippi to the site of the future New Orleans, and had
thus laid the foundation of a title not only to the ex-
plored territories watered by the St. Lawrence or in
front of it on the sea-coast, but also to undefined, be-
cause unknown, regions beyond the Mississippi.
Hence arose the fii'st great questions of boundary
in North America, those between England, France,
and Spain, which were settled by the Peace of Utrecht.
France retained possession of the territories on the
St. Lawrence and the Mississippi ; whilst England
retained her country of Hudson's Bay and her Prov-
inces on the Atlantic coast, and acquired Nova Scotia
and Newfoundland. [Treaty of Utrecht, March 31-
Aprilll,l7l3.]
Subsequently, the fortunes of war made England
mistress of the Canadian and coast establishments of
France, leaving to the latter only the territory beyond
the Mississippi. [Treaty of Fontainebleau, Nov. 3,
1762, and Treaty of Paris, Feb. 10, 1763.]
Meanwhile, Spain continued, with but brief inter-
ruption, in undisputed sovereignty of the two Floridas,
and of the vast provinces of New Spain, of undefined
extension west and north toward the Pacific.
THE KORTHWESTERN BOUNDARY -LINE. 207
Tlius, when the Thirteen Colonies obtained inde-
pendence, and treated for the partition between them
and Great Britain of the British empire in America,
each took the part of which they respectively held
constructive jurisdiction, according to its recognized
limits in time of peace, — that is to say. Great Britain
retained for herself the territories which she had con-
quered from France, and relinquished to the Thirteen
Colonies all the territory which she had theretofore
claimed as hers against France by title of colonization
and possession.
The new Republic thus became the sovereign of a
magnificent territory regarded in the comparison with
European standards of magnitude, and also of intrin-
sic value and resources unsurpassed by the posses-
sions of any European State.
But, even with such limits, we felt cribbed and con-
fined from the first : for the statesmen of the United
States had clear perception not only of what we pos-
sessed as territory, but also of what we needed to
possess in order to be a first-rate Power in America.
We found ourselves blocked in on the North by
the British possessions, which also overshadowed us
on the East, and which were at that time of sufiicient
relative strength to constitute an object of solicitude
to us so long as they remained in the hands of Great
Britain.
Westward, we were hemmed in along the Missis-
sippi by the French, who also held the mouths of
that river, and barred us from access to the sea in
that direction.
208 THE TREATY OF WASHINGTON.
On the South, Spain shut us up on the side of the
Gulf of Mexico.
It was impossible in this state of things that the
United States could attain the development to which,
in other respects, they had the right to aspire, by rea-
son of the fertility of their soil, their numerous rivers,
and their commanding position in the temperate zone
of America.
But the cession of Louisiana to the United States
by the voluntary act of France, — the most splendid
concession ever made by one nation to another, — pro-
duced a revolution in the condition of America. We
thus acquired territory of indefinite limits westward,
with such limits on the south as the pretensions of
Spain would allow, and with limits north only where
superior claim of right on the part of Great Britain
intervened, namely, the parallel of forty-nine degrees
established between France and Great Britain by the
Treaty of Utrecht.
President Jeiferson lost no time in' asserting the
rights of the United States in the interior of the
Union, and at the same time acquiring knowledge of
the country by means of the celebrated expedition of
Lewis and Clark. Theretofore the only knowledge
we possessed of the great chain of the Eocky Mount-
ains, and of the country or even the name of the coun-
try of Oregon beyond, was founded on the narration
of Jonathan Carver, or other information derived
from the Indians.
We were thus enabled to comprehend the relation
of Louisiana to the shores of the Pacific, and to see
THE NORTHWESTERN BOUNDARY - LINE. 209
that the Kiver Columbia, first entered by Captain Rob-
ert Gray of the American ship Columhia, of Boston,
in 1792, and named by him, and afterward by the
English explorer. Captain Vancouver, w^as " the great
river of the West," the Oregon of Carver.
That coast had already been ex2:»lored with more
or less of diligence by Spanish navigators, fitted out
by the Viceroys of New Spain, wdio gave to many of
the islands, straits, and channels the names they still
retain ; and Spain, if any Power anterior to the Unit-
ed States, had title by discovery in those parts of
America.
But the earliest settlement on that coast was the
factory of Astoria at the mouth of the River Colum-
bia, established by John Jacob Astor.
Then came the w^ar between the United States and
Great Britain : the first effect of which, as to the pres-
ent question, w\^s the military occupation of Astoria
and of the country on the banks of the Columbia by
British forces : subsequently to which, on the conclu-
sion of peace, although Astoria w^as surrendered to iis
in obedience to the stipulations of the Treaty of Ghent,
yet Great Britain set up claim to the valley of the
Columbia as against the United States, and^ indeed,
to all the country intervening between the actual oc-
cupations of Spain to the south in California, and those
of Russia to the north in Sitka.
Claims of Great Britain in this quarter, with but
w^eak foundation, had already been asserted against
Spain to the south of the River Columbia.
Controversy on the subject between the United
O
210 THE TREATY OF WASHINGTON.
States and Great Britain -was suspended by tlie Treaty
of October 20, 1818. By that treaty it was stipula-
ted tliat from the Lake of the Woods to the "Stony
Mountains," the line of demarkation between the pos-
sessions of the two countries in America should be
the forty-ninth parallel of latitude westward to the
Stony Mountains.
The U;iited States might well have insisted on pro-
ceeding due Avest from the most northwestern point
of the Lake of the Woods, the terminal point in that
direction of the Treaty of Independence, w^hicli is
nearer the parallel of 50°; but, in early unsuccessful
negotiations on this subject under President Jefferson,
we had agreed to adopt the 49tli parallel, and that
agreement was renew^ed by the Treaty of 1818, in obe-
dience to the assumption that this line had been es-
tablished by the Treaty of Utrecht.*
* The "Treaty of Peace and Amity" between France and
Entjland contains the following provision [Art. X.] :
"(Juant an^c liinitcs entre la Bale de Hudson et les lienx ap-
partenans a la France, on est convenu reciproquement qu'il
sera nommo incessamment des Conimissaires, qui les deter-
niineront dans le terme d'un an : ... les memes Conimissaires
auront le pouvoir de regler pareillcment les limites entre les
autrcs colonies Frangaises et Britanniques dans ce pays-la." —
Dumont, t.viii.,pt. 1, p. 332-388.
INIr. Bancroft, misled by Mr. Greenhow, says of this arti-
cle:
"On the Gulf of ]\Iexico, it is certain that France claimed to
the Del Xorte. At the northwest, where its collision would
have been with the possessions of the Company of Hudson's
Bay, no treaty, no commission, appears to have fixed its lim-
its." — Bancroft's History^ vol. iii., p. 343.
THE NORTHWESTERN BOUNDARY -LINE. 211
It was further provided by the same treaty that
the country claimed by either Party westward of the
Stony Mountains, with its harbors, bays, and creeks,
and the navio-ation of all rivers within the same,
should be free and open for the term of ten years to
the vessels, citizens, and subjects of the two Powers :
it beino: understood that this a2:reement should be
without prejudice to any exclusive claim of either, or
to the claim of any other Power.
This treaty, which regulated the occupation of Or-
egon for so many years, although apparently equal on
its face, was very unequal, as we shall see, in fact, by
reason of the whole country being immediately over-
run and almost exclusively occupied by the Hudson's
Bay Company.
But the pretensions of the United States received
notable reinforcement through the Treaty betw^een
Mr. Madison had previously said, as if not perfectly certain
of the fact :
" There is reason to believe that the boundary between Lou-
isiana and the British territories north of it was actually fixed
by Commissioners appointed under the Treaty of Utreclit, and
that the boundary was to run from the Lake of the Woods
westwardly on latitude 49°." — American State Papers^Foreign
Affairs^ vol. iii., p. 90,
The point was settled, however, by inquiries made by Mr.
Monroe at London. He says :
" Commissaries were accordingly appointed who executed *
the stipulations of the treaty in establishing the boundaries of
Canada and Louisiana by a line beginning on the Atlantic at
a cape or promontory in 58° 30' north latitude; thence south-
Avestwardly to the Lake Mistosin ; thence farther southwest to
the latitude 49° north, and along that line indefinitely." —
xinierican State Papers^ Foreign Affairs^ vol. iii., p. 97.
212 THE TREATY OF WASHINGTON.
Spain and the United States of February 22,1819,
by wLicli the former ceded to the latter tlie two
Floridas, carrying our territory down to the Gulf of
Mexico, and by which also a line of demarkation was
run between the territories of the respective Parties
west of the Mississippi. This line, commencing on
the Gulf of Mexico at the mouth of the Eiver Sabine,
proceeds by that river, the Red River, and the Arkan-
sas, to its source in latitude 42° north; "and thence
by that parallel of latitude to the South Sea." And
Spain expressly ceded to the United States all her
" rights, claims, and pretensions to any territories east
and north of the said line, as thus defined and de-
scribed by the treaty." To the rights, claims, and
pretensions of the United States on the northwest
coast we could now add those of Spain.
But another pretender to rights on that coast now
appeared in the person of Russia, whose actual occu-
pation came down to the parallel of 54° 40'; and
thereupon it was agreed between Russia and the
United States by Treaty of April 17, 1824, that the
latter would not permit any settlement by its citizens
on the coast or islands north of that degree, and that
no subjects of the former should be permitted to settle
on the coast or islands south of the same degree.
. Neither Government, however, undertook to make
any cession to the other. Nor was the country south
of the line described as a territory or possession of
the United States.
During the next year, Russia and Great Britain
concluded a treaty for the demarkation of the limits
THE NOiyrHWESTERX BOUNDARY - LINE. 213
.Ijetween tliem in the same quarter by a line wliicL,
beginning in 54° 40' at the southernmost point of
Prince of Wales Island, was made to run obliquely to
strike the main-land at latitude 56°, and then to pro-
ceed parallel to the windings of the coast at the dis-
tance of not exceedino; ten marine leas^ues therefrom
alone the summit of the coast mountains to its inter-
section with the 141st degree of longitude at Mount
St.Elias, and thence due north along that meridian to
the Frozen Ocean.
It has been too much the practice of British navi-
gators and British map-makers to affix English names
to j^laces previously visited and named by other
Europeans, and to found thereon claims of discov-
ery. English names are scattered along the coast of
Russian America, — such as Cook's Inlet, Prince Wil-
liam Sound, King George III. Archipelago, Prince
of Wales Archipelago; — but no British claims of
pi'ior exploration could prevail here against the
claims of possession as well as discovery presented
by Russia.
In this treaty, each Government speaks as the pro-
prietor and sovereign of the respective territories ;
and it is this treaty which defines and marks out the
Territory of Alaska, as now held by the United States
under recent cession from Russia.
In this condition stood the title for more than
twenty years: the United States claiming from the
latitude of 42° to that of 54° 40', in virtue, first, of
their own discoveries and settlement, and of the right
of the extension of Louisiana until it should reach the
214: THE TREATY OF WASHINGTON.
ocean or some recognized possession of anotlier Power,
and, secondly, in virtue of the discoveries and rights
of extension of Spain ; and Great Britain claiming in
virtue of discovery and possession, and of rights of ex-
tension of her actual admitted possessions in America.
Thus we arrive at the question of what her actual
admitted possessions w^ere: which is the key to the
Treaty of June 15, 1846, the interpretation of which
was referred to the Emperor of Germany.
On the restoration of Charles II., projects of colo-
nization and of remote commercial or speculative en-
terprises, which had been suspended in England dur-
ing the Civil War, began to be resumed with new
zeal, comprehending as well the East as the West
Indies.
Among the great territorial charters of that day,
one of the most interestim? is that of the Hudson's
Bay Company, by which the King granted to sundry
persons, including the Prince Bupert, the Duke of
Albemarle, the Eaj'l of Craven, Lord Arlington, Lord
Ashley, Sir John Ilobinson, Sir Edward llungerford,
and others [in part, it will be perceived, the same per-
sons who obtained a grant of the two Caroliuas],
" The sole trade and commerce of all those seas, straits, bays,
rivers, lakes, creeks, and sounds, in wliatsoever latitude they
sliall be, tliat lie "svithin the entrance of tlie straits commonly
called Hudson's Straits, together with all the lands and terri-
tories upon the countries, coasts, and confines of the seas, bays,
lakes, rivers, creeks, and sounds aforesaid, that are not already
actually possessed by or granted to any of our subjects, or
possessed by the subjects of any other Christian Prince or
State, Avith the fishing of all sorts offish, whales, sturgeons, and
THE NORTHWESTERN BOUNDARY -LINE. 215
all other royal fislies in the seas, bays, inlets, and rivers within
the premises and the fish therein taken, together with the roy-
alty of the sea upon the coasts within the limits aforesaid, and
all mines royal, as well discovered as not discovered, of gold,
silver, gems, and precious stones, to he found or discovered
within the territories, limits, and places aforesaid, and that the
said land be from henceforth reckoned and reputed as one of our
Plantations or Colonies in America, called ' Rupert's Land,' "
This concession was induced, as the preamble of
the charter sets forth, by the reason that the parties
" Have, at their own great cost and charges, undertaken an
expedition for Hudson's Bay, in the 7iorthicest part of America,
for the discovery of a new passage to the South Sea, and for
the finding some trade for furs, minerals, and other considerable
commodities, and by such their undertaking have ab-eady made
such discoveries as do encourage them to proceed farther in
pursuance of their said designs, by means whereof there may
probably arise very great advantage to us and our Kingdom."
The Company's Chai'ter, in common w'ith others of
that period", conveyed to them the right to hold the
territory granted with all rights and jurisdictions ap-
j^ertaiuing thereto, as of the manor of East Green-
"wich in Kent ; the Company became lords and pro-
prietors of Rupert's Land on Condition of a yearly
payment to the Crown of " two elks and two black
beavers ;" and no legal impediment existed to the es-
tablishment on Hudson's Bay of a local political gov-
ernment such as existed in Massachusetts or Virgin-
ia ; but, in reflecting on the slow growth of the Brit-
ish Colonies in the more temperate latitudes of North
America, it w^ill be readily seen that no colonization
could be effected on the frozen and desolate shores
of Hudson's Bay. In effect, the Company very soon
216 THE tri:aty of Washington.
resolved itself into a mere commercial undertaking
for trade in the furs of the vast region in the space
between Canada or New France and the Arctic Sea,
inhabited only by wandering bands of Indians.
Wlieu the great Succession War broke out, involv-
ing all Europe, it could not fail to reach America;
for the possessions of three of the four principal
Powers engaged, — France, Great Britain, and S2:>ain,
— occupied alternate points on the coast of the At-
lantic. The French, of course, endeavored to avail
themselves of the opportunity to drive out or to
weaken the English on both sides of them, and es-
pecially in Rupert's Land, which they invaded and
partly conquered, but restored by the subsequent
Treaty of Utrecht.
After this time, the Company, safe in its arctic sol-
itudes, prospered without check for a century, filling
Rupert's Land -with forts and foctories, and engross-
in o; the fur trade of North America.
Thereupon a rival Company entered the field, un-
der the auspices of the Province of Canada, founding
its enterprise on the assertion that Rupert's Land
had only a limited extension south and west, to cov-
er no more than the water-shed terminatino; at Hud-
son's Bay, with no rights or jurisdiction southward
and westward to the great Lakes and the Rocky
Mountains.
After a long and violent controversy, the North-
west Fur Company was by agreement of parties
merged to the Hudson's Bay Company.
iThe combined influence of the parties interested in
THE NORTHWESTERN BOUNDARY-LINE. 217
the aggregate Company enabled it to obtain for a
term of years, first in 1821, and afterward in 1838,
exclusive rio-lit to trade watli tbe Indians in certain
parts of North America not belonging to Prince Ru-
pert's Land.
The region of country thus opened by license ex-
clusively to the Hudson's Bay Company is described
in the license of 1838 as follows:
"The exclusive privilege of trading with the Indians in all
such parts of North America to the northward and to the west-
ward of the lands and territories belonging to the United States
of America as should not form part of any of our provinces in
North America, or of any lands or territories belonging to the
said United States of America, or to any European Government,
State, or Power."
In so far as these licenses affected only the region
west and south of Hudson's Bay depending on Lake
Winnipeg, Lake Athabasca, the two Slave Lakes, and
other lands east of the Rocky Mountains, they did
not concern the United States.
But in so far as they affected the region w^est of
the Rocky Mountains, such a license is in plain viola-
tion of treaties with the United States. The Queen
of Eno-land could 2;ive a license in that reofion to the
Hudson's Bay Company exclusive of all other Miglisli-
men; but she could not give any to exclude citizens
of the United States. That, indeed, the grant does
not profess to do; but, in effect, it did that and more ;
for in the hands of the Company it w^as " a charter
of licensed usurpation and pillage in the whole of
the described reo-ion of North America." The Com-
pany established forts or posts at every eligible or
218 THE TREATY OF WASHINGTON.
strategic point between the mountains and tlie shores
of the Pacific ; their servants killed the fur-bearing
animals; they cut and exported the timber; and,
by means of its wealth and organization, the Com-
pany monopolized the commerce and the resources
substantially to the exclusion for a long time of the
people of the United States.
But at length some settlements of Americans had
been commenced in Oregon; and the attention of
Congress was called to the usurpations of the Hud-
son's Bay Company by Mr. Benton, Mr. Linn, and the
writer of these pages : in consequence of which steps
were taken to i^ut an end to the joint occupation of
Oregon. In fact, the Company had now set up the
most extravagant pretensions, exaggerating a mere li-
cense to trade into a grant' of proprietorship to the
whole of the immense region south and west of Ru-
pert's Land, to the dissatisfaction of the people of
Canada as well as of the United States. For it was
the interest of the Company to retain the whole
country occupied by them in the condition of a mere
hunting-field, and c^uite uninhabited except by vassal
Indians: while the Canadians desired that it should
be opened to colonization, so as to add to the materi-
al resources and political force of the Canadian Prov-
inces. Parliamentary inquiry into the rights of the
Company was instituted ; it was imperatively instruct-
ed by Sir, Edward Bulwer Lytton [afterward Lord
Lytton], Colonial Minister [whose dispatches show
that lie was uot less eminent as a statesman than as
a poet and a novelist], to desist from all general pre-
THE NORTHWESTERN BOUNDARY - LINE. 219
tensions of proprietorship founded upon license, to
trade; its license was revoked; it w^as compelled to
yield up Oregon to the United States; and it w^as
half- persuaded and half- constrained to sell its char-
tered rio;hts to the Canadian Dominion, and to shrink
into comparative insignificance in America.
When the Government of the United States enter-
ed into neo-otiations with Great Britain for termina-
ting the joint occupation of Oregon, the machinations
of the Hudson's Bay Company were the great disturb-
ing fact which for a long time prevented the conclu-
sion cf a treaty and its due execution.
Meanwhile the two Governments, after extraordi-
nary contention, at length arrived at a settlement of
another boundary question, which had remained open
ever since the Treat}^ of Independence, namely, the
boundary-line on the northeast between the British
possessions and the United States [Treaty of Novem-
ber 20, 1842].
The duration of the Treaty of 1818 was limited to-
ten years. As the expiration of this time approached,
the American Government offered to settle the ques-
tion of Oregon by extending the line of -49° to the
Pacific Ocean, and announced this as "our ultimatum."
The British Government objected that this line w'ould
cut off the southern part of Vancouver s Island. We
replied by proposing to yield this part for an equiv-
alent. But it w\as for the interest of the Hudson's
Bay Company, which was in practical possession of the
whole country, to defeat this attempt at settlement,
and it was defeated, and the United States reluctant-
220 THE TREATY OF WASHINGTON.
ly consented to tlie prolongation of the nominal joint
occupation.
But the discussions in Congress heretofore men-
tioned, and the disposition of Americans to settle in
Oregon, had, in 1842, rendered the joint occupation
intolerable to the people of the United States, and
the negotiation ■ for settlement was renewed on the
premises of the 49th parallel. The baleful influence
of the Hudson's Bay Company caused the negotiation
to drag on for the period of four years; when the
Treaty of 184G was at length concluded, yielding to
Great Britain the southernmost extremity of Van-
couver's Island.
It was the question of Vcowouvey^s Island which
chiefly occupied the succeeding negotiators. To run
the line on the 49th parallel to the sea, and " thence
by the Canal de Ilaro and Straits of Fuca to the
oceaft," was Lord Aberdeen's proposition to Mr.
McLane. And the same understanding of the ques-
tion, — that is, to concede to Great Britain "Vancouver's
Island, and nothing else south of latitude 49°," — per-
vades the dispatches and debates on both sides. And
on such premises, notwithstanding much 02')position
in Congress and out of it, the United States acceded
to these terms as a measure of peace and of concilia-
tion toward Great Britain.
But strife was unexpectedly renewed two years
afterward by Lord Palmerston, or by Lord John Bus-
sell, who had succeeded as Premier to Sir Robert Peel,
and their action has kept up dispute on the subject
between the two Governments for more than twenty
THE NORTHWESTERN BOUNDARY -LINE. 221
years solely on account of pretensions wliicb ought not
to have been raised, and the injustice of which has now
at length been demonstrated by the Aw^ard of the
Emperor of Germany. If this Award be unwelcome
to the people of Great Britain, no feeling of unkind-
ness in that respect should be attached by them to
the United States. The Canal de Haro Avas undoubt-
edly intended by the negotiators of the Treaty of
1846 as the w^ater-boundary in that quarter: that in-
tention accords wdth the obvious and only reasonable
signification of the language of the treaty.
THE AWARD.
This conclusion is clearly and conclusively proved
in the Memorial presented in the name of the Amer-
ican Government to the German EmjDcror by the
American Plenipotentiary and Agent, Mr. George
Bancroft, and in his Beply to the Case of Great
Britain.
Mr. Bancroft was pre-eminently fitted for the per-
formance of this duty. Possessing intellectual quali-
ties of a high order, and particular personal estimation
at the Court of Berlin, he enjoyed the advantage of
having been a member of the Cabinet under whose
auspices the Treaty of 1846 w^as negotiated, — of sub-
sequently representing his Government at the Court of
St. James at the time when the present controversy
commenced, — and of being thoroughly master of all
the older diplomatic incidents of the question by his
studies as the historian of the United States. Of the
value of all these qualifications to his Government on
222 THE TREATY OF WASHINGTON.
tlie present occasion, we have tlie proof in two most
complete and most convincing arguments wliieli he
addressed to tlie Emperor of Germany.
The Agent on the part of Great Britain was Ad-
miral James C. Prevost, who had been the Commis-
sioner of his Government, in association with Mr.
Archibald Campbell, Commissioner of the United
States, for determining and marking the line of bound-
ary prescribed by the treaty, and who, of course, pos-
sessed all the special knowledge requisite for the
preparation of any possible argument in support of
the pretensions of Great Britain.
The Emperor, it appears, referred the arguments on
both sides to three experts. Dr. Grimm, Dr. Kiepert,
and Dr. Goldschmidt, personages among the most
eminent of his subjects in juris2:)rudence and in sci-
ence, upon whose report he decided on the 21st of
October, 1872, in the terms of the reference, that the
claim of the United States to have the line drawn
throufrh the Canal de Haro is most in accordance
with the true interpretation of the treaty concluded
on the 15th of June, 1846, between Great Britain and
the United States.
"This Award," says the President's Message of De-
cember 2, 1872, "confirms the United States in their
claim to the important archipelago of islands lying
between the continent and Vancouver's Island, which
for more than twenty-six years [ever since the ratifi-
cation of the treaty] Great Britain had contested, and
leaves us, /(9r the first time in the history of the United
States as a nation^ without a question of disputed
THE NORTHWESTERN BOUNDARY- LINE. 223
boundary between onr territory and the possessions
of Great Britain on this continent."
In recent debates in the House of Lords, the Earl
of Lauderdale criticised the Treaty of Washington
in severe terms, partly on the assumption that the
United States have in reserve new claims respecting
the northwestern boundary-line. He is mistaken.
Nothing remains but questions of hydrography for
Commissioners to determine, w^hich there is no diffi-
culty in doing ; and arrangements have already been
made by the two Governments for the appointment
and organization of the requisite Commission.
In conclusion, let me say that Great Britain has no
cause to recrret the adverse conclusion of this contro-
versy. The conditions of the Treaty of 1846 involved
positive concession on the part of the L'nited States,
if not as to the general line, yet in giving up the
w^hole of the Island of Vancouver without any com-
pensation. We certainly did not mean at the same
time to give up the important island of San Juan, and
various other islands intervening between that and
the main-land, which would have been the effect of
admitting the Straits of Kosario as the water-bound-
ary. We knew that prior to and during the negotia-
tions the Canal de Haro was expressly mentioned
and always understood as the true channel, corre-
sponding to the desire of the British Government to
secure Vancouver's Island.
To Great Britain it can be of no possible conse-
quence which of the lines of boundary should be es-
tablished. What possessions remain to her on the
22i THE TREATY OF WASHINGTON.
nortliwest coast of America, Vancouver's Island and
Britisli Columbia can not ever be of special impor-
tance to lier either as a military post or as a colony.
Nor can tliey be of any military advantage to the
Canadian Dominion, and may, on the contrary, con-
stitute in her hands a temptation to needless expense
in fortifications, notwithstanding w^hich, owing to the
remoteness of those countries by land and their in-
accessibility to her by sea, the Dominion would find
them quite untenable in the presence of the powerful
American States on the shores of the Pacific Ocean.
To the United States, on the other hand, it is im-
portant to have had the question decided in our favor.
We are now a real j^ower on the Pacific coast, which
Great Britain is not and can not be. Holding the
Territory of Alaska to the north of the British pos-
sessions, the Territory of Washington, the State of
Oreiron, and the OTeat and rich State of California
ceded to us by the Mexican Republic, with the grow-
ing States and Territories on their rear, it would have
been to us intolerable to be excluded from the great
channel between Vancouver's Island and the main-
land, or to traverse it only under the guns of British
fortresses on that island. Such a settlement would
have had in it the germs of war : the j^resent affords
assurance of stable peace.
Happily the United States and Great Britain ai'e
now delivered from the complications in their rela-
tions occasioned by the exorbitant power of the Hud-
son's Bay Company. By other provisions of the same
Treaty of 18-4G, the United States had made to Great
THE NORTHWESTEllX' BOUNDARY -LINE. 225
Britain the concession of recognizing certain preten-
sions of that Company in Oregon and Washington,
founded on mere encroachment, and, in order to be re-
lieved of these pretensions, paying to the Company a
small sum in satisfaction of its claims, about one tenth
of what was demanded for it in the name of the Brit-
ish Government.
Lord Milton expresses the oj)inion that "On a. just
and equitable solution of the so-called San Juan Water-
boundary Question depends the future, not only of
British Columbia, but also of the entire British pos-
sessions in North America." By "just and equitable
solution" he means, of course, decision in favor of
Great Britain. If the premises are correct, then the
consequences are a fact accomplished. But he over-
estimates the value of the Archipelago of San Juan to
Great Britain. His opinion assumes what is impossi-
ble, the acquisition of considerable intrinsic strength
on the part of British Columbia, sustained by railroad
connection with the Provinces of Ontario and Quebec.
But what would avail, in a military point of view, a
railroad runuino: throuo-h a thousand miles of com-
paratively uninhabited country within easy reach at
every point to the armies of the United States ? .1
think the future of the British possessions in North
America depends on a different order of facts, of which
something will be said in another chapter in speak-
ins: of the commercial relations of the United States
and the Canadian Dominion.
P
226 THE TREATY OF WASHINGTON.
CHAPTER V.
THE FISHERIES.
HISTORY OF THE QUESTION.
The Treaty of Independence was, I repeat, a vir-
tual partition of the British Empire iu America be-
tween the Metropolis and the Thirteen United Col-
onies. It was not a treaty founded on militarij pos-
session : for the Colonies had no such possession save
along the coast of the Atlantic Ocean, and Great
BritaiVi occupied several posts north and west of
the Ohio and on the Great Lakes. The theory of the
treaty was to recognize the Colonies as sovereign ac-
cording to their political limits as fixed by charter
and by the public law^ of England.
In conformity with this theory, the treaty stipu-
lates that the United States shall continue in the en-
joyment of the coast fisheries, as follows :
" Article III. It is agreed that the people of the United States
shall continue to enjoy unmolested the right to take fish of ev-
ery kind on the Grand Bank, and on all the other banks of New-
foundland ; also in the Gulf of St. Lawrence, and at all other
places in the sea where the 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
on such part of the coast of Newfoundland as British fishermen
shall use [but not to dry or cure the same on that island] ; and
. THE FISHERIES. 227
also on the coasts, bays, and creeks of all other of His Britannic
Majesty's dominions in America ; and that the American fish-
ermen shall have liberty to dry and cure fish in any of the un-
settled bays, harbors, and creeks of Nova Scotia, Magdalen Isl-
ands, 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
the said settlement, without a previous agreement for that pur-
pose with the inliabitants, proprietors, or possessors of the
ground."
NotwithstaDding the absolute terms of this treaty
in regard to the question of peace, there survived on
both sides so much of irritation, and so many points
of mutual relation remained uncertain, that the treaty
was in some respects little more than a truce. We
had special cause to comj^lain of the persistent occu-
pation of northwestern posts by Great Britain, and its
effect on the Indians within our lines. On the other
hand, to say nothing of minor matters, when the wars
of the French Revolution commenced, and the French
Republic undertook to use our ports as the base of
naval operations against Great Britain, the latter
Power took umbrage of course ; and it was only the
firm attachment of President Washingt'on to peace,
which prevented these difficulties from fatally em-
broilinsc the two countries, and which led to the con-
elusion of the Treaty of December 19, 1794, as the
similar spirit of President Grant led to the conclusion
of the Treaty of Washington.
During the next ten years, the United States labor-
ed to maintain their neutrality in the presence of the
universal war by land and sea which raged between
the great European Powers. Both France and En-
228 THE TREATY OF WASHINGTON.
gland gave to us good cause of rupture ; we barely
escaped war witli France in 1798; we were forced
into war with England in 1812; and in the course
of all these events the hand ^f the Government was
restrained, if not paralyzed, by the factious force of
symiKithies in the United States, on the one side for
France and on the other for England. Hence, alike
in the qitasi war with the former, and the declared
war with the latter, the results as to the United States
were uncertain, imperfect, trivial even, compared with
the great objects which might have been accomplish-
ed by united counsels.
On the side of France, however, it must be admit-
ted that our disposition to avoid pushing matters to
extremities contributed to gain for us the immense
benefit of the acquisition of Louisiana.
Afterward, although the Berlin and Milan Decrees
of France and the Orders in Council of Great Britain
constituted each alike good cause of war with either,
yet the United States held back at vast sacrifice, until
continued assertion of the right to impress seamen on
board of our* merchant ships, and, indeed, to visit our
ships-of-war, and other exaggerations of belligerent
right, forced us into war with Great Britain.
The treaty by which that war was concluded is
one of the most unsatisfactory in the annals of the
United States. It was absolutely silent in regard to
all the subjects of controversy which had occasioned
the war. Nothing is said of the belligerent encroach-
ments of Great Britain on the neutral rio-hts of the
United States, nothing of maritime search, nothing of
THE FISHEKIES. 229
the impressment of real or pretended Britisli subjects
on board ships of the United States. And it left
room, by its silence, for Great Britain to raise ques-
tion of our right to participate in the coast fisheries,
which question, although dealt with from time to time
in successive treaties, has more than once seriously
endangered the peace of the two Governments.
Does war have the effect of annulling all existing
treaties ? A general answer to this question is given
by one of the most authoritative of modern publicists
[Calvo] as follows :
. " If the treaty of peace modifies anterior treaties, or expi;ess-
ly declares the renewal of them, the dispositions of the treaty
of peace are theveafter to constitute the law; but if no partic-
ular mention is made in this respect, the anterior treaties must
necessarily continue to have full force and effect. In order
that they should be deemed definitively abrogated, it would
be requisite that they shall not only be suspended by the war
but annulled in fact, as in the case of treaties of alliance of
which the raisoti cVetre ceases at the end of the war: it would
be requisite, indeed, that their contents should be incompatible
with the stipulations of the treaty of peace, which occurs, for
example, in what regards ancient treaties relative to the de-
limitation of frontiers between two States."
The Supreme Court of the United States lays down
the law as follows:
" We think that treaties stipulating for permanent rights and
general arrangements, and professing to aim at perpetuity, and
to deal with the case of war as well as of peace, do not cease
on the occurrence of war, but are, at most, only suspended
while it lasts ; and unless they are waived by the parties, or
new and repugnant stipulations are made, they revive in their
operations at the return of peace."
Such has been the received doctrine in the United
230 THE TREATY OF WASHINGTON.
States, to tlie effect that war does not, as an absolute,
universal rule, abrogate existing treaties, regardless
of tlieir tenor and particular contents ; and it is tlie
only doctrine compatible wdtli reason, justice, commoUf
sense, and tbe diplomatic history of Europe.
But the British Government, in the celebrated dis-
patch to Mr. Adams of October 30, 1815, signed by
Lord Bathurst, and understood to be the composition
of Mr. Canning, declared the j)osition of Great Britain
to be : " She knows no exception to the rule that all
treaties are put an end to by a subsequent war be-
tween the same parties." This j^roposition, in its ab-
soluteness of expression, if it is intended as an asser-
tion of any established practice of nations, or any rec-
ognized doctrine of the law of nations, is unfounded
and unauthorized. Many treaties are made precisely
for the case of war, and only become efficacious in
virtue of the existence of Avar. The assertion of Lord
Bathurst is altogether too broad, as Dr. Bluutschli
demonstrates.
Nevertheless, acting on such extreme premises. Great
Britain pretended that our rights of fishery had been
abrogated by the war, and were not revived by peace;
and that this effect was the true interpretation of the
omission to mention the subject in the Treaty of
Ghent.
The Commissioners of the United States w^ho ne-
gotiated the Treaty of Ghent Avere men of unques-
tionable patriotism and of the highest character and
intelligence: it would be out of place here to reopen
the dispute as to certain special causes of the failure
THE FISHERIES. 231
of the Commissioners to secure in that treaty recog-
nition of the fishery rights of the United States. But
it is due to the memory of the American Commission-
ers, and especially to Mr. Gallatin, Mr. Adams, and
Mr. Bayard, to say that, in all the negotiation at Ghent,
they and their associates were hampered by the dis-
couraged state of mind of the American Government,
embarrassed, as it was, by political difficulties at
home, and alarmed, if not terrified, by the triumph of
Great Britain in Spain and France, and the total over-
throw of Napoleon, which seemed to leave the Brit-
ish Government free to dispatch overwhelming forces
of sea and land asfainst the United States.
The autumn subsequent to those events was the
darkest period in the history of the country. Noth-
ing but the shock produced by the great change in
the whole face of affairs in Europe could have extort-
ed from the American Government those final instruc-
tions to our Commissioners, which authorized them
to agree to the status quo ante helium as the basis of
negotiation, — which spoke of our right to the fisheries,
and of our foreign commerce, in equivocal terms, —
'and which, indeed, left the Commissioners free to con-
clude such a treaty as their own judgment should
approve under existing circumstances, provided only
they saved the rights of the United States as an inde-
pendent nation.
How different mio;ht and would have been those
instructions, had the Government but struggled on a
little longer against the adverse circumstances of the
hour ! Courage and procrastination would have made
233 THE TREATY OF WASHINGTOX.
US masters of the situation, and enabled us to dictate
terms to Great Britain.
Remember that the Treaty of Ghent was signed on
the 24th of December, 1S14, and that the disastrous
defeat of the British forces attacking New Orleans oc-
curred a fortnight afterward, on the 8th of January,
1815. This event, if the negotiation at Ghent had
remained open, could not but have strengthened the
American Government ; and, two months later, all
the difficulties in its path would have been removed
by the landing of Napoleon at Golf Jouan [March 1,
1815] and the renewal of the war in Europe.
But the pretension of Great Britain, that the war
had abrogated any part of the Treaty of Indepen-
dence, was evidently untenable ; and the justice of
the cause of the United States was so manifest that,
after three or four years of discussion, the British
Government agreed to the express recognition of our
fishery rights as follows [Treaty of October 20,1818]:
"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, harbors, and
creeks of His Britannic Majesty's dominions in America, it is
agreed between the high contracting parties that the yihabit-
ants of the said United States shall have, forever, in common
with the subjects of His Britannic Majesty, the liberty to take
fish of every kind on that ])art of the southern coast of New-
foundland Avhich extends from Cape Bay to the Bamcau Isl-
ands, on the western and northern coast of Newfoundland
from the said Cape Bay to the Quirpon Islands, on the shores
of the Magdalen Islands, and also on the coasts, bays, harbors,
and creeks from Mount Joly, on the southern coast of Labra-
dor, to and through the Straits of Bclleisle,and thence north-
THE FISHEKIES. 233
warclly indefinitely along the coast, without prejudice, how-
ever, to any of the exclusive rights of the Hudson's Bay Com-
pany. And that the American fishermen shall also have lib-
erty, forever, to dry and cure fish in any of the unsettled bays,
harbors, and creeks of the southern part of the coast of New-
foundland, 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 Avith the inhabitants, proprietors, or possessors of the
ground. And the United States hereby renounce, forever, any
liberty heretofore enjoyed or claimed by the inhabitants there-
of 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, not included within the above-
mentioned limits : Provided, however, that the American fisher-
men shall be permitted to enter such bays or harbors for the
purpose of shelter and of repairing damages therein, of purchas-
ing wood, and of obtaining water, and for no other purpose
whatever. But they shall be under such restrictions as may
be necessary to j^revent their taking, drying, or curing fish
therein, or in any other manner whatever abusing the privi-
leges hereby reserved to them."
In virtue of these treaty provisions, citizens of the
United States continued to fish on the coasts of the
British Provinces without interruption for some twen-
ty years, when question was raised as to their right
to iisli witldii the bays or indents of the coast, in
consequence of an opinion of the Law Officers of the
Crown that the expression "three marine miles of
any of the coasts, bays, creeks, or harbors," within
which citizens of the United States were excluded
from any right of fishing on the coast of British Amer-
ica, intends miles "to be measured from the headlands,
or extreme points of land next the sea or the coast, or
234 THE TREATY OF WASHINGTON.
of the entrance of bays or indents of tlie coast," and
that, consequently, American fishermen had no right
to enter bays, there to take fish, although the fishing
might be at a greater distance than three miles from
the shore of the bay.
This opinion, be it observed, makes no distinction
between close bays and open ones, large indents of
the coast and small ones, and, if carried into effect by
the British Government, would exclude citizens of the
United States from a large part of the productive fish-
ing-grounds on the coast of British America.
Now, strange to say, this opinion of the Law Officers
of the Crown is based on a mere blunder of theirs,
or, to say the least, on a fiction, or a bald interpolation.
After stating their conclusion, they assign, as the
sole reason of it :
" As [tliat is, because] we are of opinion that the term ' head-
land' is used in the treaty to express the part of the land
■vve have before mentioned, including the interior of the bays
and the indents of the coasts."
It is not true that "the term 'headland' is used in
the treaty to express the part of the land we have
before mentioned."
Neither the term " headland " nor any word of simi-
lar signification is to be found in the treaty. The
Law Otficers of the Crown undertook to construe the
treaty without reading it, and by this presumptuous
carelessness caused the British Government to initi-
ate a series of measures of a semi-hostile character,
which came very near producing another war be-
tween Great Britain and the United States.
THE FISHERIES. 235
It may be quite admissible for the British Gov-
ernment, as they are accustomed to do, to throw
off all their resj^onsibilities on the "Law Officers
of the Crown," when the question is one of mere
domestic relation ; but it is dangerous for that
Government to do so in matters affecting other Gov-
ernments.
We have already had occasion to comment on the
very extraordinary circumstances attending the fail-
ure of the Law Officers of the Crown to report upon
the case of the Alabama, and its disastrous influence
on the conduct of the Government.
As to the opinion of the "Law Officers of the
Crown " in construction of the fishery clauses of the
treaty of 1818, it is difficult to say which produced
the more amusement or amazement in the United
States, the fact that the "Law Officers" should inter-
polate a phrase into the treaty in order to give to
their opinion its sole foundation to stand upon, or
that the British Government should placidly accept
such fallacious and baseless reasoning without chal-
lenge, and proceed in obedience to it to enter into hos-
tile maritime operations, and hurry on to the verge
of war against the United States.
After much agitation and discussion, however, the
question was settled for the time being by articles
of the Treaty of September 9, 1854, commonly called
the Eeciprocity Treaty, as follows :
"Article I. It is agreed by the high contracting Parties that,
in addition to the liberty secured to the United States fishernKU
by the above-mentioned Convention of October 20,1818, of
230 THE TREATY OF WASHINGTON.
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,
harbors, and creeks of Canada, New Brunswick, Nova Scotia,
Prince P^dward's Island, and of the several islands thereunto
adjacent [and, by another article, Newfoundland], without be-
ing 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 upon the Magdalen Islands, for the
purpose of drying their nets and curing their fish ; })rovidcd
that, in so doing, they do not interfere with the rights of pri-
vate property, or with British fishermen in the peaceable use
of any part of the same coast in their occupancy for the same
purpose. '
"It is understood that the above-mentioned liberty ap])lies
solely to the sea-fishery, and that the salmon and shad fisheries,
and all fisheries in rivers and the mouths of rivers, are hereby
reserved exclusively for British fishermen."
Similar provision was made in Article II., witli like
exception, for the admission of British subjects to
take fish on a part of the sea-coasts and shores of the
United States.
It w^as further a2;reed that Commissioners should
be appointed, who shall
"Examine the coasts of the North American provinces and
of the United States embraced within the provisions of the
first and second articles of this treaty, and shall designate the
places reserved by the said articles from the common right of
fishing therein."
But these provisions were temporary onl}", being
subject to be terminated on a year's notice, after the
expiration of ten years, and the treaty was in fact
THE FISHERIES. 237
denounced on the l7tli of March, 1865, and expired
on the 17th of March, 1866.
In truth, the United States had purchased the fish-
ery provisions of this treaty by other provisions to
the effect that certain enumerated articles of the
growth and j^roduce of the British Colonies of Cana-
da, New Brunswick, Nova Scotia, Prince Edward's
Island, and Newfoundland, or of the United States,
should be " admitted into each country respectively
free of duty." •
But the reciprocity here was nearly nominal, the
great benefits of the provision inuring to the British
Colonies. The fisheries had come to be the incident
of a larger question, namely, that of the terms of com-
mercial intercourse between the United States and
the British Colonies in North America.
Dissatisfaction in the United States with this state
of things led to the denouncement of the treaty, and
to the revival of a controversy between the two Gov-
ernments regarding the fisheries : which controversy
was terminated by the Treaty of Washington.
PROVISIONS OF THE TREATY OF WASHINGTON.
By Articles XYIIL, XIX., and XX., the fishery
stipulations of the Treaty of September 9, 1854, are
in substance revived, with further provision for the
appointment of a Commission to settle any outstand-
ing question as to the " places " of fishery reserved by
either Government.
It is further agreed that fish -oil and fish of all
kinds, exce2:)t fish of the inland lakes and of the riv-
238 TIIK TKEATY OF "WASHINGTON.
ers falling into tlieni, and except iisli preserved in oil,
being the produce of the fisheries of the United
States, or of the Dominion of Canada, or of Prince
Edward's Island, shall be admitted in each country
respectively free of duty.
Then follows :
"Article XXII. Inasmuch as it is asserted by the Govern-
ment of Her Britannic Majesty that the privileges accorded
to the citizens of the United States under Article XVIII. of
this Treaty are of greater value than those accorded by Arti-
cles XIX. and XXI, of this Treaty to the subjects of Her Bri-
tannic Majesty, and this assertion is not admitted by the Gov-
ernment of the United States, it is further agreed that Com-
missioners shall 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 XYIII. of this Treaty ; and that any sum of
money which the said Commissioners may so award shall be
})aid by the United States Government, in a gross sum, withio
twelve months after such Award shall have been given."
The Commissioners referred to in this article are
to be appointed, one by each of the two Govern-
ments, and the third by the two Governments con-
jointly, or, in case of disagreement between them, by
the Minister at London of the Emperor of Austria
and Hungary. The Commission is to sit at Halifax,
in the Province of Nova Scotia.
With this provision ends the list of Gover7iments
concerned in this truly international Treaty, which, in
the interests of peace, engages the co-operation of
THE FISIIEKIES. 239
eight sovereign States, namely, Italy, Switzerland,
Brazil, Sweden and Norway, Spain, Austria and
Hungary, Great Britain, and the United States.
PROBABLE AMOUNT OF INDEMNITY.
The peculiarity of the ari'angement, w^e see, is that
the United States are to make compensation to Great
Britain for any excess in vahie of the privileges of
fishery accorded to the United States above those
accorded to Great Britain. One party asserts, the
other denies, such excess of value.
This question involves examination of facts, but it
also suggests inquiry of right.
What are the privileges which the United States
acquire under Article XVIII. of the Treaty of Wash-
ington ? Certainly not any which they possessed al-
ready.
Now, in virtue of subsisting stipulations of the
Treaty of 1818, we possessed the recognized right of
fishery along the coasts, and in the bays, harbors, and
creeks of British North America, subject, in so far as
regards the present question, only to the renunciation
which we made in that treaty of the liberty previ-
ously enjoyed or claimed, to take, dry, or cure fish on
or ivithi)i three marine miles of the coasts, bays,
creeks, or harbors of certain defined parts of the
shores of British America. The Treaty of Washing-
ton removes this limitation. Hereafter we are to
fish on the sea-coasts and shores, and in the bays,
harbors, and creeks, previously subject to limitation
of three marine miles, " without being restricted to
240 THE TREATY OF WASHINGTON.
any distance from the sliore." But we are not re-
quired to pay for any relinquishment on the part of
Great Britain of the fictitious chiim founded on the
erroneous opinion of the Law Officers of the Crown,
which, on the false assumption that "headlands" are
mentioned iu the Treaty of 1818, extends an imagi-
nary line seaward three marine miles from each cape
of bays and indents of the coast, joins the extremities
of those two lines by a straight line, and then re-
quires our fishermen to keep outside of this connect-
ing line. Deluded by that opinion, the British Gov-
ernment, indeed, absurdly imdertook to exclude us
by force from the Bay of Fundy, but failed to main-
tain its pretension in that respect.
What we purchase is the right to enter and fish with-
in the three marine miles of the shores at the bottom
(^Z* certain hays, harhoi'S, and creelcs (from which alone
we were excluded by the Treaty of 1818), disregard-
ing wholly the opinion of the Law Officers of- the
Crown. Looking at the clause under consideration,
in this its only proper light, it is plain that it can
not impose any serious charge on the United States.
COMMERCIAL INTERCOURSE AND TRANSPORTATION. 241
CHAPTER VI.
COMMERCIAL INTERCOURSE AND TRANSPOR-
TATION.
TREATY PROVISIONS.
Sundry stipulations of the Treaty wliicli relate to
rights of navigation, and of transport by land or water,
—to concessions of commercial intercourse and trans-
it, — or to the free interchange of objects of produc-
tion, — are divisible into, first, permanent provisions,
and, secondly, temj)orary provisions.
1. Of permanent provisions we have the following:
[«] Great Britain engages that the navigation of
the River St. Lawrence, ascending and descending,
from the point where it ceases to form the boundary
between the two countries, shall forever remain free
and open for tjie purpose of commerce to the citizens
of the United States [Art. XXVI.].
The United States engage that the Rivers Yukon,
Porcupine, and Stikine, in Alaska, ascending and de-
scending from, to, and into the sea, shall forever re-
main free and open for the purpose of commerce to
the subjects of Great Britain [Art. XXVI.].
Rights of local police and regulation are reserved
by each Government.
[^] The United States engage that the subjects
Q
243 THE TREATY OF WASHINGTON.
of Great Britain sliall enjoy the use of the St. Clair
Flats' Canal on terms of equality with the inhabitants
of the United States [Art. XXVIL].
[(?] The United States engage to urge on the State
Governments, and Great Britain eno-ao-es to uro-e on
the Dominion of Canada, to secure each to the sub-
jects or citizens of the other the use on equal terms
of the several canals connected ^vith the lakes or riv-
ers traversed by or contiguous to the boundary -line
between the possessions of the high contracting Par-
ties [Art. XXVII.].
All these are provisions which bring the United
States and the Dominion of Canada into fixed rela-
tions independent of and superior to all questions of
Governments.
2. Of temporary provisions we have the following:
[«] The navigation of Lake Michigan is declared
free and open for the purposes of commerce to the
subjects of Great Britain [Art. XXVIII.].
\])\ Goods, wares, and merchandise arriving at the
ports of New York, Boston, Portland, or such other
ports as the' President may designate^ and destined
for the British possessions in North America, may be
entered at the proper custom-house Avithout- payment
of duties, and conveyed in transit through the terri-
tory of the United States [Art. XXIX.].
And, in like manner, goods, wares, and merchandise
arriving at any of the ports of the British possessions
in North America, and destined for the United States,
may be entered at the proper custom - house, and
conveyed in transit without the payment of duties
COMMERCIAL INTERCOURSE AND TRANSPORTATION. 243
througli the said possessions ; and goods, wares, and
mercliaudise may be conveyed in transit without pay-
ment of duties, from the United States through the
said possessions to other places in the United States,
or for export from ports in the said possessions [Art.
XXIX.].
All these rights of transit are, of course, subject to
such regulations for the protection of the revenue as
the respective Governments may prescribe.
[<?] Great Britain engages to urge on the Dominion
of Canada and the Province of New Brunswick that
no export duty or other duty shall be levied on tim-
ber cut in that part of the American territory in the
State of 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 Brunswick.
[<:/] Subjects of Great Britain may carry in British
vessels, without payment of duty, goods, wares, or
merchandise from one port or place within the terri-
tory of the United States upon the St. Lawrence, the
Great Lakes, and the rivers connecting the same, to
another port or place within the territory of the
United States, provided that a portion of such trans-
portation is made through the Dominion of Canada
by land carriage and in bond [Art. XXX.].
Citizens of the United States may carry in United
States vessels goods, wares, or merchandise from one
port or place within the British possessions in North
America to another port or place within the said
possessions, provided that a portion of such transpor-
2.14: THE TREATY OF WASHINGTON.
tation is made tbroiigli the territory of tbe United
States by land carriage and in bond [Art. XXX.].
The United States engage not to impose any export
duties on goods, wares, or merchandise carried imder
tliis article through the territory of the United
States; and Great Britain engages to urge the Do-
minion of Canada and the other British Colonies not
to impose any export duty on goods, wares, or mer-
chandise carried under this article.
It being understood that these respective rights of
transit are to be regulated by the two Governments ;
and that on the part of the United States the right
of transit will be suspended unless the Dominion of
Canada should establish the exemption from export
duties required, and unless the Dominion shall open
its canals on equal terms to citizens of the United
States, and unless the Dominion and the Province of
New Brunswick shall free from all duties the timber
cut on the St. John in the State of Maine and export-
ed to the United States [Arts. XXX. and XXXI.].
All the provisions of the Treaty from Articles
XVIII. to XXI. inclusive, and Article XXX., — that is
to say, the articles regarding the fisheries and reciji-
rocal right of transit, — are to take effect so soon as the
laws required to carry them into operation shall have
been passed by the Parliament of Great Britain, by
that of Canada, and by the Legislature of Prince Ed-
ward's Island, on the one hand, and by the Congress
of the United States on the other.
Such assent having been given, such articles shall
remain in force for the period of ten years from the
COMMERCIAL INTERCOUESE AND TRANSPORTATION. 245
date at wliicli they may come into operation, and fur-
ther until tlie expiration of two years after either of
the Parties shall liave given to the other notice of its
desire to terminate the same : which either may give
at the end of the said ten years or -at any time after-
ward [Art. XXXIIL].
Temporary as these provisions are, or at least ter-
minable at the will of either Party, they are equitable
in themselves, and advantageous both to the United
States and the Canadian Dominion ; and, like the
permanent provisions of the Treaty explained in this
chapter, they tend to draw the two countries closer
and closer together.
The germ of the Treaty of Washington, it is to be
remembered, was the su2:2;estion of the British Gov-
ernment through Sir John Rose, a former Canadian
Minister, whose proposal related only to pending
questions aifecting the British possessions in North
America, not Great Britain herself
What these questions were we partly understand by
the stipulations of the Treaty, the whole of which, ex-
cept those growing out of incidents of the late Civil
War, are of interest to Canada, including the maritime
Provinces, primarily if not exclusively, although re-
quiring to be treated in the name of Great Britain.
To the arrangements actually made, Canada would
have preferred, of course, revival of the Elgin-Marcy
Reciprocity Treaty, involving the admission into each
country, free of duty, of numerous articles, being the
grow^th and produce of the British Colonies or of the
United States. It w^as the desire of Canada to have
24:G THE TREATY OF WASHINGTON.
provision made for alleged claims on account of the
acts of the Fenians. But the United States would
not listen to either of these propositions : so that the
Dommion had opportunity to allege that she was
sacrificed to the -Metropolis, and thus to obtain, by
way of compensation, the guaranty on the part- of the
Imperial Government of a large loan for the construc-
tion of the proposed trans-continental railway from
the Great Lakes to the Pacific Ocean.
In some respects, the arrangements we have been
considering resemble those of the Reciprocity Treaty ;
but they are much more comprehensive, and they are
better in other respects.
We have placed the question of the fisheries on an
independent footing. If the American fisheries are of
inferior value to the British, — which we do not con-
cede, — then we are to pay the difference. But the
fishery question is no more to l)e employed by the
Dominion of Canada, as it has been heretofore, either
as a menace or as a lure, in the hope of thus inducing
the United States to revive the Reciprocity Treaty.
Apart from other ne^v provisions in the Treaty of
"Washington of less moment, there is the all-important
one, stipulating for reciprocal right of commercial
transit for subjects of Great Britain through the
United States, and for citizens of the United States
through the Dominion : in view of which Sir John
Macdonald has no cause to regret his participation
in the negotiation of the Treaty.
Sir Staftbrd Northcote, in the late debate on the
Queen's speech, repels with force and truth the sug-
COMMERCIAL INTERCOURSE AND TRANSPORTATION. 247
gestion of Lord Bury that the Treaty of Washington
is unjust to Canada. He shows, on the contrary, that
the Treaty is beneficial and acceptable to the Domin-
ion, specifying particulars, and citing the a2:)probatory
votes of the legislative assemblies of the Canadian
and maritime Provinces.
But the United States will never make another
treaty of reciprocal free importation, without includ-
ing manufactures and various other objects of the
production of the United States not comprehended in
the schedule of the Elgin -Marcy Treaty. In fine,
Canada must expect nothing of this nature short of a
true zollverein involvins; serious modifications of the
commercial relations of Canada to Great Britain.
RELATION OF THE BRITISH PROVINCES TO THE UNITED
STATES.
The Dominion of Canada is one of those " Posses-
sions," as they are entitled, of Great Britain in Amer-
ica, which, like Jamaica and other West India Islands,
have ceased to be of any economic value to her save
as markets, — which in that respect would be of al-
most as much value to her in a state of independence,
— which she has invited and encouraged to assume
the forms of semi-independent parliamentary govern-
ment, — which, on the whole, are at all times a charge
to her rather than a profit, even in time of peace, —
which would be a burden and -a source of embarrass-
ment rather than a force in time of war, — and which,
therefore, she has come to regard, not with complete
carelessness perhaps, but with sentiments of kindli-
248 THE TREATY OF WASHINGTOX.
ness and good-will, rather than of the jealous tena-
ciousness of sovereign power. When the Pominion
shall express desire to put on the dignity of a sover-
eign State, she will not encounter any obstacles on
the part of the Metropolis.
In rescard to the Dominion of Canada, as to the
Colonies of Australasia, the power of the Metropolis
appears there chiefly in the person of the Governor,
and in the occasional annulment of laws of the local
legislatures deemed incompatible wdth those of the
Empire. On the other hand, the Colonies, which have
necessary relations of their own with neighboring
Governments, as in the case of Canada relatively
to the United States, can not treat thereon them-
selves, as theif" interests require they should, but
must act through the intervention of the Metropolis,
W'hich, in this respect, may have other interests of its
own superior and perhaps injurious to those of the
Colonies.
Meanwhile the Dominion has now to provide for
the cost of her own military defense, and that, not
against any enemies of her own, but against possible
enemies of the Mother Country. The complications
of European or of Asiatic politics may thus envelop
the Dominion in disaster, for causes wholly foreign to
her, as much so as if she were a sovereign State. In
such an emergency, the Dominion Avould be tempted
to assume an attitude of neutrality, if not of indepen-
dence.
All these considerations show how slender is the
tie which attaches the Dominion to Great Britain.
COMMERCIAL INTERCOURSE AND TRANSPORTATION. 249
The entire history of all European Colonies in
America proves that the sentiment oi7iationality, that
is, of attachment to the Mother Country, is very weak,
and readily yields place to other sentiments of ambi-
tion, interest, or passion, so as to produce feelings of
hostility between the inhabitants of the Metropolis
and those of the Colonies more intense than such as
exist between either of them and the inhabitants of
other countries. This fact is particularly remarkable
in the incidents of revolution in Spanish America, ex-
ample of which we have now before the eyes in the
insurrecfion which ra£::es in Cuba. But the same fact
appears distinctly in the past history of British
America. And there is no reason to suppose that
the sentiment of mere loyalty^ that is, political attach-
ment to the Mother Country, is any more strong at
present in the Dominion of Canada than it formerly
was in the British Colonies now constitutino- the
United States.
M. H. Blerz}^, in a very instructive essay on the
Colonies of the British Empire, discussing the question
whether the English beyond sea are likely to remain
attached to England by recollections of family or of
country, observes Avith great truth that " the very
aptitude for colonization of which the English are
so proud could not exist without implying a cer-
tain insouciance of family on their part and disdain
of their native country."
How true is this remark! It is illustrated by
contrasting; the devoted attachment of the French to
France, who in our day send so few colonists to
250 THE TREATY OF WASHINGTON.
America, and those cliieily Basques, while hundreds
of thousands annually emigrate from Great Britain.
Zo?/«^ Canadians, that is, loyal to Great Britain,
must of necessity take into account this fact, wliich is
of the very essence of British colonization in Amer-
ica. They are also compelled to regard another se-
rious fact of the same order of ideas, namely, the con-
tinual emigration from Canada to the United States,
not only on the part of recent immigrants from Great
Britain, but, — which is more noticeable as a sign of
the times, — the emigration of old Canadians, natives
of the soil, in spite of all the efforts of the Govern-
ment to check and discourao;e it.
On the other hand, the history of all European col-
onization shows that a time comes when the Mother
Country grows more or less indifferent to the fate of
her Colonies, ^vhich time appears to have arrived in
Great Britain as respects the Dominion.
When Canada complains [without cause] that
her wishes have been disreo;arded and her interests
■ prejudiced by the stipulations of the Treaty of
Washington, the great organ of 02:>inion in England
replies :
"From this day forth look after your own busi-
ness yourselves : you are big enough, you are strong
enough, you are intelligent enough, and, if there were
any deficiency in either of these points, it would be
supplied by the education of self reliance. We are
both now in a false position, and the time has ar-
rived when we should be relieved from it. Take nj)
your freedom : your days of ((pprenticeHliij) are overT
COMMERCIAL INTERCOURSE AND TRANSPORTATION. 251
Instances might be cited of tlie expression of sim-
ilar ideas in Parliament.
Loyalists in Canada must remember another thing.
Montesquieu, with the singular penetration which
distinguished him, perceives that England imjDarts to
her Colonies "la forme de son Government," by
means of which " on verroit se former de grands peu-
ples dans les forets memes qu'elle enverroit habiter."
But the parliamentary form of Government, which
has contributed so greatly to the growth and strength
of British Colonies, gave to them facilities of success-
ful rebellion, — that is, of separation from the Metrop-
olis, — which no other form of government could im-
part, and the absence of which in Spanish America
[and now in Cuba] has done so much to impede and
obstruct their separation from Spain. We had ex-
perience of this in our Revolution, where each of the
Colonies had a governmental organization so com-
plete that, in order to be independent de facto, it
needed only to ship off the British Governor. The
same fact was apparent in our Secession War, as M.
de Tocqueville had predicted. And, at this time, the
Dominion of Canada needs only to substitute for a
British Governor one of her own choice to become
a sovereign State organized as comj^letely as Great
Britain herself.
There is another class of considerations of great
importance.
War between the United States and Great Britain
is now a contingency almost inadmissible as supposi-
tion, and so, of course, is war between the United
or,Q THE TKEATY OF WASHINGTON.
lioli
States and Canada, a possession of Great Britain.
Nevertheless, the capability of a country to main-
tain itself by force, if need be, is one of the elements
of its political life, and therefore can not be over-
looked in considering: the condition of the Dominion
of Canada.
In regard to Canada the inquiry is the more impor-
tant, seeing that military force depends in part on
geographical focts, which, in her case, equally as to
peace or war, and for the same reasons, place her at
disadvantao-e on the side of the United States.
The British possessions in North America, begin-
ning with Newfoundland on the Atlantic Ocean, and
ending with Queen Charlotte's Island on the Pacific,
extend across the continent in its broadest part, a
distance of 80° of longitude, but in a high latitude,
occupying the whole of the country north of the ter-
ritory of the United States. The space thus described
looks large on the map ; but the greater part of it is
beyond the limit of the growth of trees, and much of
the residue is too cold to constitute a chosen residence
for Europeans.
In a word, the Dominion stretches along thousands
of miles, without capability of extension on the one
side, where it meets the frozen north, or on the other,
where it is stopped by the United States. As a
country, it resembles a mathematical line, having
length without breadth.
• Meanwhile, owing to their internal position, their
northern latitude, and the geographical configuration
of the whole country, the t^vo great Provinces of On-
COMMERCIAL INTERCOURSE AND TRANSPORTATION. 95S
tario and Quebec have no access to the sea in the long
winter, save through the United States.
Thus, if it be possible to conceive of two countries,
which would appear to be naturally destined to con-
stitute one Government, they are the United States
and the British Provinces, to the special advantage
of the latter rather than the former.
We therefore can aftbrd to wait. We have nothing
to apprehend from the Dominion Pacific Railway : if
constructed, it will not relieve Ontario and Quebec
from their transit dependence on the United States.
We welcome every sign of prosperity in the Domin-
ion. With the natural limitations to her growth, and
the restricted capacity of her home or foreign mar-
kets, her prosperity will never be sufficient to prevent
her landowners and her merchants from lookine: wist-
fully toward the more progressive poj^ulation and the
more capacious markets of the United States. Her
conspicuous public men may be sincerely loyal to the
British Crown ; many of the best men of Massachu-
setts, New York, and Virginia were so at the opening
of the American Revolution ; but neither in French
Canada, nor in British Canada, nor in the maritime
Provinces, do any forces of sentiment or of interest
exist adequate to withstand those potent natural and
moi'al causes, or to arrest that fatal march of events,
which have rendered nearly all the rest of America
indejiendent of Europe, and can not fail, sooner or
later, to reach the same consummation in the Domin-
ion of Canada.
The spirit of independence is a rising tide, in Can-
254 THE TKEATY OF WASHINGTON.
ada as elsewhere in America, wliicli you see in its re-
sults, if not in its jirogress. It is like the advancement
of the sun in the sky, imperceptible as movement, but
plain as to stages and ultimate destination. It is not
an effect actively produced by the United States. It
is an event which we would not precipitate by violence
if we could, and which we scarcely venture to say we
wish for, lest in so doing we should possibly wound
respectable susceptibilities; but which we neverthe-
less expect to hail some day with hearty gratulation,
as an event auspicious alike to the Dominion and to
the United States.
If Lord Milton's appreciation of the course of events
be correct, — and no person has written more intelli-
gently or forcibly on the British side of these ques-
tions than he, — the consummation is close at hand.
Arguing from the British stand-point of the San Juan
Question, he says :
" If Great Britain retains the Island of San Juan and tlie
smaller islands of the archipelago lying west of the compromise
channel proposed by Lord Russell, together with Patos Island
and the Sucia group, she will preserve her power upon the
Pacific, and will not in any Avay interfere with or menace the
harbors or seas which a))pertain to the United States. If, on
the other hand, these islands should become United States ter-
ritory, the highway from the British possessions on the main-
land will be commanded by, and be at the n;ercy of that
Power, . . .
"Such a condition of affairs must inevitably force British
Columbia into the United Slates federation; and the valuable
district of the Saskatchewan . . . must, ex necessitate rei^ fol-
low the fortunes of British Columbia. Canada, excluded from
the Pacific, and shut in on two sides by United States terri-
tory, must eventually follow the same course."
COIMMERCIAL INTERCOURSE AND TRANSPORTATION. 265
In contemplatiou of these results, it is difficult to
see how any American should fail on reflection to
approve the Treaty of Washington.
" Two rival Powers," says Prevost Paradol, " but which are
but one at the point of view of race, of language, of customs, and
of h^ws, predominate on this planet outside of Europe. . . .
Destiny has pronounced; and two parts of the world at least,
America and Oceanica, belong without remedy to the British
race. . . . But the actual ascendancy of that race is but a feeble
image of what a near future reserves to it."
The time is not remote when the United States
and the Dominion of Canada will be associated in
these great destinies, whether in close alliance or in
more intimate union, it matters little: when "Amer-
ica," like "Italy," shall cease to be a mere geograph-
ical denomination, and will comprehend, in a mighty
and proud Republic, the whole combined British
race of North America.
But, glorious as such a consummation would be, I
would not have it to be save with the cordial con-
currence of the peoj^le of the Dominion, and the con-
tented acquiescence at least of Gi'eat Britain. There
is many a page of superlative triumph in the annals,
of the British Isles, — that England, Scotland, and Ire-
land of which we in the New World once were, —
but not one of her days of victory can equal in lustre
that of the day when Great Britain, not less proud
of us, " the fairest of her daughters," than of herself,
shall extend the right hand of ^velcome and aftection
to United America.
APPENDIX.
TREATY BETWEEN THE UNITED STATES
AND GREAT BRITAIN.
Concluded Mat 8, 1871; Ratificatioxs Exchanged June 17, 1871;
Proclaimed July 4, 1871.
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.
A PROCLAMATION.
Whereas a Treaty, between the United States of America and Her Majesty
the Queen of the United Kingdom of Great Britain and Ireland, concerning the
»
settlement of all causes of difference between the two countries, was conckidefl
and signed at Washington by the High Commissioners and Plenipotentiaries
of the respective Governments on the eighth day of May last ; which Treaty
is, word for word, as follows :
The United States of America and Her Britannic Majesty, being desirous to
provide for an amicable settlement of all causes of ditfei'ence between the two
countries, have for that purpose appointed their respective Plenipotentiaries, that
is to say : the President of the United States has apjiointed^ on the part of the
United States, as Commissioners in a Joint High Commission and Plenipoten-
tiaries, Hamilton Fish, Secretary of State ; Robert Cumming Schenck, Envoy
Extraordinary and Minister Plenipotentiary to Great Britain ; Samuel Nelson,
an Associate Justice of the Supreme Court of the United States ; Ebenezer
Rockwood Hoar, of ^Massachusetts ; and George Henry Williams, of Oregon ;
and Her Britannic Majesty, on her part, has appointed as her High Commis-
sioners and Plenipotentiaries, the Right Honorable George Frederick Samuel,
Earl de Grey and Earl of Ripon, Viscount Goderich, Baron Grantham, a Bar-
onet, a Peer of the United Kingdom, Lord President of Her Majesty's Most
Honorable Pri^y Council, Knight of the Most Noble Order of the Garter,
etc. , etc. ; the Right Honorable Sir Stafford Henry Northcote, Baronet, one of
Her ]Majesty"s Most Honorable Privy Council, a ileraber of Parliament, a Com-
panion of the Most Honorable Order of the Bath, etc., etc.; Sir- Edward. Thorn-
R
25 S APPENDIX.
ton, Knight Commander of the Most Honorable Order of the Bath, Iler Majes-
ty's Envoy Extraordinary and Minister Plenipotentiary to the United States
of America ; Sir John Alexander Macdonald, Knight Commander of the Most
Honorable 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 Do-
minion of Canada ; and Mountague Bernard, Esquire, Chichele Professor of In-
ternational 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.
WTiei'tas 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
generically known as the '■^Alabama Claims :"
And whereas Her Britannic Majesty has authorized her High Commissioners
and Plenipotentiaries to express, in a friendly spirit, the regret felt by Her Maj-
esty's Government for the escape, under whatever circumstances, of the Ala-
bama and other vessels from British ports,, and for the depredations committed
by those vessels :
Now, in order to remove and adjust all complaints and claims on the part
oT the United States, and to provide fur tlic speedy settlement of such claims,
which are not admitted by Her Britannic Majesty's Government, the High Con-
tracting 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 refeiTed to a Tribunal of Arbitration to be composed of five Arbitrators, to be
appointed in the following manner, that is to say : One shall be named by the
President of the United States ,• one shall be named by Her Britannic Majesty;
His Majesty the King of Italy shall be requested to name one ; the President
of the Swiss Confederation shall be requested to name one ; and His Majesty the
Emperor of Brazil shall be requested to name one.
In case of the death, absence, or incapacity to serve of any or either of the
said Arbitrators, or, in the event of either of the said Arbitrators omitting or
declining or ceasing to act as such, the President of the United States, or Her
Britannic Majesty, or His Majesty the King of Italy, or the President of the Swiss
Confederation, or His Majesty the Emperor of Brazil, as the case may be,' may
forthwith name another j^erson to act as Arbitrator in the place and stead of
the Arbitrator originally named by such Head of a State.
And in the event of the refusal or omission for two months after receipt of the
request from cither of the High Contracting Parties of His Majesty the King
,<)f Italy, or the President of the Swiss Confederation, or His Majesty the Em-
peror of Brazil, to name an Arbitrator either to fill the original appointment or
in the place of one who may Jiia\e died, be absent, or incapacitated, or who may
THE TREATY OF WASHINGTON. 259
omit, decline, or from any cause cease to act as such Arbitrator, His Majesty
the King of Sweden and Norway shall he requested to name one or more per-
sons, as the case may be, to act as such Arbitrator or Arbitrators.
Akticle II.
The Arbitrators shall meet at Geneva, in Switzerland, at the earliest conven-
ient 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 re-
spectively. All questions considered by the Tribunal, 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
th3 Tribunal as its agent to represent it generally in all matters connected with
the arbitration.
Article IIL
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 Tribunal, but
within a period not exceeding 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
documents, correspondence, and evidence, in reply to the case, documents, corre-
spondence, and evidence so presented by the other Party.
The Arbitrators may, however, extend the time for delivering such counter-
case, documents, correspondence, and evidence, when, in their judgment, it be-
comes necessary, in consequence of the distance of the place from which the evi-
dence 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 an-
nexing 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 reason-
able 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,
260 APPENDIX.
to deliver in duplicate to e:ich 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 rehes ; and the Arbitrators may, if
they desire furtlier elucidation with regard to any point, require a written or
printed statement or argument, or oral argument by counsel upon 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 tDlIowing three rules, which are agreed ujjou by the High Contracting
Parties as rules to be taken as applicable to the case, and by such principles of
International Law not inconsistent therewith as the Arbitrators shall detennine
to have been applicable to the case.
RULES.
A neutral Government is bound —
First, to use due diligence to prevent the fitting out, arming, or equipping,
within its jurisdiction, of any vessel which it has reasonable ground to believe is
intended to cruise or to carry on war against a Power with wliich it is at
peace ; and also to use like diligence to prevent the departure from its jurisdic-
tion of any vessel intended to cruise or carry on war as above, such vessel hav-
ing been specially adapted, in whole or in part, within such jui'isdiction, to war-
like use.
Secondly, not to permit or suffer either belligerent to make use of its ports or
waters as the base of naval ojicrations against the other, or for the purpose of
the renewal or augmentation of military supplies or arms, or the recruitment of
men.
Thirdly, to exercise due diligence in its own ports and waters, and, as to all
persons within its jurisdiction, to prevent any violation of the foregoing obliga-
tions and duties.
Her Britannic Majesty has commanded her High Commissioners and Pleni-
potentiaries to declare that Her Jlajesty's Government can not assent to the
foregoing rules as a statement of principles of International Law which were
in force at the time when the claims mentioned in Article I. arose ; but that.
Iler Majesty's Government, in order to evince its desire of strengtiiening the
friendly relations between the two countries and of making satisfactory ])rovis-
i8n for tlie future, agrees that, in deciding the questions between the two coun-
tries arising out of those claims, the Arbitrators should assume that Her Maj-
esty's Government had undertaken to act u])on the princijdes set forth in these
rules.
And the High Contracting Parties agree to obsene 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.
THE TREATY OF WASHINGTON. 261
Article VII.
The decision of the Tribunal shall, if possible, be made within three months
from the close of the argument on both sides.
It shall be made in writing and dated, and shall be signed 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 fulfill any of the duties set
forth in the foregoing three rules, or recognized by the princijales of Internation-
al Law not inconsistent with such rules, and shall certify such fact as to each
of the said vessels. In case the Tribunal find that Great Britain has failed to
fulfill any duty or duties as aforesaid, it may, if it think proper, proceed to award
a sum in gross to be paid by Great Britain to the United States for all the
claims referred to it ; and in such case the gross sum so awarded shall be paid
in coin by the Government of Great Britain to the Government of the United
States, at Washington, within twelve months after the date of the award.
The award shall be in duplicate, one copy whereof shall be delivered to the
agent of the United States for his Government, and the other copy shall be de-
livered to the agent of Great Britain for his Government.
Article VIII.
Each Government shall pay its own agent, and provide for the proper remu-
neration of the counsel employed by it and of the Arbitrator appointed by it, and
for the expense of preparing and submitting its case to the Tribunal. All other
expenses connected with the arbitration shall be defrayed by the two Govern-
ments in equal moieties.
Article IX.
The Arbitrators shall keep an accurate record of their proceedings, and may
appoint and employ the necessary ofiicers to assist them.
Article X.
In case the Tribunal finds that Great Britain has failed to fulfill any duty or
duties as aforesaid, and does not award a sum in gross, the High Contracting
Parties agree that a Board of Assessors shall be appointed to ascertain and de-
termine what claims are valid, and what amount or amounts shall be paid by
Great Britain to the United States on account of the liability arising from
such fiiilure, as to each vessel, according to the extent of such liability as de-
cided by the Arbitrators.
The Board of Assessors shall be constituted as follows : One member there-
of shall be named by the President of the United States, one member thereof
shall be named by Her Britannic Majesty, and one member thereof sliall be
262 APPENDIX.
named by the Representative at Washington of His Majesty the King of Italv -,
and in case of a vacancy happening from any cause, it shall be filled in the
same manner in -which tlie original appointment was made.
As soon as jjossible 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 imiiartially and carefully examine and decide, to the
best of their judgment and according to justice and equity, all matters submit-
ted 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, and shall examine and de-
cide upon them in such order and manner as they may think projier, but upon
such evidence or information only as shall be furnished by or on behalf of the
Governments of the United States and of Great Britain respectively. They
shall be bound to hear on each separate claim, if required, one person on be-
half 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 claim 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,
they shall make a further report at or before the cxj)iratinn 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 there-
of to the Rei)resentative of Her Britannic IM.ijesty at Washington.
All sums of money which may be 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 neces-
sary.
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 certified by the Board. 'J'he remuneration of the As-
sessors shall also be paid by the two Governments in equal moieties in a simi-
lar manner.
Article XI.
The High Contracting Parties engage to consider the result of the proceed-
ings of the Tribunal of Arbitration and of the Board of Assessors, should such
THE TREATY OF WASHINGTON. 263
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 may or may not have been presented to the notice of, made, prefer-
red, or laid before the Tribunal or Board, shall, from and after the conclusion
of the proceedings of the Tribunal or Board, be considered and treated as fi-
nally settled, barred, and thenceforth inadmissible.
Article XII.
The High Contracting Parties agree that all claims on the part of corpora-
tions, companies, or private individuals, citizens of the United States, upon the j
Government of Her Britannic Majesty, arising out of acts committed against
the persons or property of citizens of the United States during the period be-
tween the thirteenth of April, eighteen hundred and sixty-one, and the ninth
of April, eighteen hundred and sixty-five, inclusive, not being claims growing
out of the acts of the vessels referred to in Article I. of this Treaty, and all
claims, with the like exception, on the part of corporations, companies, or pri-
vate individuals, subjects of Her Britannic Majesty, upon the Government of
the United States, arising out of acts committed against the persons or prop-
erty of subjects of Her Britannic Majesty during the same period, which may
have been presented to either Government for its interjjosilion with the other,
and which yet remain unsettled, as well as any other such claims which may be
presented within the time specified in Article XIV. of this Treaty, shall be re-
• ferred to three Commissioners, to be appointed in the following manner, that is
to say: One Commissioner shall be named by the President of the United
States, one by Her Britannic Majesty, and a third by the President of the /f
United States and Her Britannic Majesty conjointly ; and in case the third I
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 Representative at Washington
of His Majesty the King of Spain. In case of the death, absence, or inca-
pacity of any Commissioner, or in the event of any Commissioner omifting
or ceasing to act, the vacancy shall be filled in the manner hereinbefore pro-
vided for making the original appointment ; the period of three months in case
of such substitution being calculated from the date of the happening of the
vacancy.
The Commissioners so named shall meet at Washington at the earliest con-
venient period after they have been respectively named-; and shall, before pro-
ceeding to any business, make and 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, all such claims as shall be laid before them
on the part of the Governments of the United States and of Her Britannic Maj-
esty, respectively ; and such declaration shall be entered on the record of their
proceedings.
OC-i APPENDIX.
Articlk XIII.
The Commissioners shall then forthwith proceed to the investigation of the
claims which sliall be jiresented to them. They shall investigate and decide
such claims in such order and 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. They shall be bound to receive and consider all writ-
ten documents or statements which may be presented to them by or on behalf
of the respective Governments in support of, or in answer to, any claim, and to
hear, if recpiired, 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 shall be sufficient for an award in each case.
I The award shall be given upon each claim in writing, and shall be signed by
the Commissioners assenting to it. It shall be competent for each Government
to name one person to attend the Commissioners as its agent, to present and
support claims on its behalf, and to answer claims made upon it, and to repre-
sent it generally in all matters connected with the investigation and decision
thereof.
The High Contracting Parties hereby engage to consider the decision of the
Commissioners, as absolutely final and conclusive upon each claim decided upon
by them, and to give full effect to such decisions without any objection, eva-
sion, or delay whatsoever.
Article XIV.
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 dcla}' 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.
, The Commissioners sliall be bound to examine and decide upon every claim
' within two years from the day of their first meeting. It .«hall be competent
for flie Commissioners to 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 Treaty.
AUTICLK XV.
All sums of money which may be awarded by the Commissioners on account
of any claim shall be jiaid by tlic one fiovernment to the other, as the case may
be, within twelve months after the date of tlic final award, without interest, and
without any deduction save as specified in Article XVI. of this Treaty.
Article XVI.
The Commissioners shall keep an accurate record and correct minutes or
notes of all their proceedings, with the dates thereof, and may appoint and em-
THE TREATY OF "WASHINGTON. 265
ploy a secretary, and any other necessary oflBcer or officers, to assist them in
the transaction of the business which may come before them.
Each Government shall pay its own Commissioner and agent or counsel.
All other expenses shall be defrayed bj^ the two Governments in equal moieties.
The whole expenses of the Commission, including contingent expenses, shall
be defrayed by a ratable deduction on the amount of the sums awarded by the
Commissioners, provided always that such deduction shall not exceed the rate
of five per cent, on the sums so awarded.
Article XVII.
The High Contracting Parties engage to consider the result of the proceed-
ings of this Commission as a full, perfect, and final settlement of all such claims ij
as are mentioned in Article XII. of this Treaty upon either Government ; and '
further engage 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 inadmis-
sible.
Article XVIII.
It is agreed by the High Contracting Parties that, in addition to the liberty
secured to the United States fishermen by the Convention between the United
States and Great Britain, signed at London on the 20th day of October, 1818,
of taking, curing, and drying fish on certain coasts of the British North Amer-
ican Colonies therein defined, the inhabitants of the United States shall have,
in common with the subjects of Her Britannic Majesty, the liberty, for the term
of years mentioned in Article XXXIII. of this Treaty, to take fish of every
kind, except shell-fish, on the sea-coasts and shores, and in the'bays, harbors,
and creeks, of the Provinces of Quebec, Nova Scotia, and New Brunswick, and
the Colony of Prince Edward's Island, and of the several islands thereunto ad-
jacent, without being restricted to any distance from the shore, with permission
to land upon the said coasts and shores and islands, and also upon the Magda-
len 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 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
fishery, and that the salmon and shad fisheries, and all other fisheries in rivers
and the mouths of rivers, are hereby reserved exclusively for British fishermen.
Article XIX.
It is agreed by the High Contracting Parties that British subjects shall have,
in common with the citizens of the United States, the libevty, for the term of
266 APPENDIX.
years mentioned in Article XXXIII. of tliis Treaty, to take fish of every kind,
except sliell-fish, on the eastern sea-coasts and shores of^ the United States
north of the thirty-ninth parallel of north latitude, and on the shores of the sev-
eral islands tiiereunto adjacent, and in the bays, harbors, and creeks of the
said sea-coasts and shores of the United States and of the said islands, without
being restricted to any distance from the shore, with permission to land upon
the said coasts of the United States and of the islands aforesaid, for the i)ur-
pose 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 the fishermen of the
United States in the peaceable use of any part of the said coasts in their occu-
pancy for the same purpose.
It is understood that the above-mentioned liberty applies solely to the sea
fishery, and that salmon and shad fisheries, and all other fisheries in rivers and
mouths of rivers, are hereby reserv-ed exclusively for fishermen of the United
States.
Article XX.
It is agreed that the places designated by the Commissioners appointed un-
der the First Article of the Treaty between the United States and Great Britain,
concluded at Washington on the 5th of June, 1854, upon the coasts of Her Bri-
tannic Majesty's Dominions and the United States, as places reserved from the
common right of fishing under that Treaty, shall be regarded as in like manner
reserved from the common right of fishing under the preceding articles.- In
case any question should arise between the Governments of the United States
and of Her Britannic Majesty as to the common right of fishing in places not
thus designated as reserved, it is agreed that a Commission shall be appointed
to designate such places, and shall be constituted in the same manner, and have
the same powers, duties, and authority as the Commission appointed under the
said First Article of the Treaty of the 5th of June, 1854.
Article XXI.
It is agreed that, for the term of years mentioned in Article XXXIII. of this
Treaty, fisli-oil and fish of all kinds [except fish of the inland lakes, and of the
rivers falling into them, and except fish preserved in oil], being the j)roduce of
the fisheries of the United States, or of the Dominion of Canada, or of Prince
Edward's Island, shall be admitted into each country, respectively, free of duty.
Article XXII.
Inasmuch as it is asserted by the Government of Her Britannic Majesty that
the privileges accorded to the citizens of the United States under Article XVIII.
of this Treaty are of greater value than those accorded by Articles XIX. and
XXI. of this Treaty to the subjects of Her Britannic Majesty, and this assertion
THE TREATY OF WASHINGTON. 267
is not admitted by the Government of the United States, it is further agreed
that Commissioners shall be appointed to determine, having regard to the privi-
leges 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 compensa-
tion which, in their opinion, ouglit to be paid b}' the Government of tiie United
States to the Government of Her Britannic Majesty in return for the privileges
accorded to the citizens of the United States under Article XVIII. of this
Treaty ; and that any sum of money which the said Commissioners may so
award shall be paid by the United States Government, in a gross sura, within
twelve months after such award shall have been given.
Article XXIII.
Tlie Commissioners re/erred to in the preceding article shall be appointed In
the following manner, that is to say : One Commissioner shall be named by the
President of the United States, one by Her Britannic Majesty, and a third by
the President of the United States and Her Britannic Majesty conjointly ; and
in case the third Commissioner shall not have been so named within a period
of three months from the date when this article shall take effect, then the third
Commissioner shall be named by the Representative at London of His Majesty
the Emperor of Austria and King of Hungary. , In case of the death, absence,
or incapacity of any Commissioner, or in the event of any Commissioner omitting
or ceasing to act, the vacancy shall be filled in the manner hereinbefore pro-
vided for making the original appointment, the period of three months in case of
such substitution being calculated from the date of the happening of the vacancy.
The Commissioners so named shall meet in the City of Halifax, in the Prov-
ince of Nova Scotia, at the earliest convenient period after they have been re-
spectively named, and shall, before proceeding to any business, make and sub-
scribe a solemn declaration that they will impartially and carefully examine
and decide the matters referred to them to the best of their judgment, and ac-
cording to justice and equity ; and such declaration shall be entered on the
record of their proceedings.
Each of the High Contracting Parties shall also name one person to attend
the Commission as its agent, to represent it generally in all matters connected
with the Commission.
Article XXIV.
The proceedings shall be conducted in such order as the Commissioners ap-
pointed imder Articles XXII. and XXIII. of this Treaty shall determine. They
shall be bound to receive such oral or written testimony as either Government
may present. If either Party shall offer oral testimony, the other Party shall
have the right of cross-examination, under such rules as the Commissioners
shall prescribe.
If in the case submitted to the Commissioners either Party shall have speci-
268 APPENDIX.
ficd or idliulcJ to any report or document in its own exclusive possession, with-
out annexing a copy, sucli Tarty shall be bound, if the other Party thinks prop-
er to apply for it, to furnish that Party with 'a copy thereof; and either Party
may 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 Commissioners may require.
Tlie case on either side shall be closed within a period of six months from
the date of the organization of the Commission, and the Commissioners shall
be requested to give their award as soon as possible thereafter. The aforesaid
period of six months may be extended for three months in case of a vacancy ^oc-
curring among the Commissioners under the circumstances contemplated in
Article XXIII. of this Treaty.
Article XXV.
The Commissioners shall keep an accurate record and correct minutes or
notes of all their proceedings, with the dates thereof, and may appoint and em-
ploy a secretary, and any other necessary officer or officoi's, to assist them in the
transaction of the business which may come before them.
Each of the High Contracting Parties shall pay its own Commissioner and
agent or counsel ; all other expenses shall be defrayed by the two Governments
in equal moieties.
Article XXVI.
The navigation of the River St. Lawrence, ascending and descending, from
the forty-fifth parallel of north latitude, where it ceases to form the boundary
between the two countries, from, to, and into the sea, shall forever remain free
and open for the purposes of commerce to the citizens of the United States, sub-
ject to any laws and regulations of Great Britain, or of the Dominion of Canada,
not inconsistent with such privilege of free navigation.
The navigation of the Pivers Yukon, Porcupine, and Stikine. ascending and
descending, from, to, and into the sea, shall forever remain free and open for the
purposes of commerce to the subjects of Her Britannic Majesty and to the cit-
izens of the United States, subject to any laws and regulations of either country
within its own territory not inconsistent with such privilege of free navigation.
Article XXVII.
The Government of Her Britannic Majesty engages to urge upon the Govern-
ment of the Dominion of Canada to secure to the citizens of the United States
the use of the Welland, St. Lawrence, and other canals in the Dominion on terms
of equality with the inhabitants of the Dominion ; and the Government of the
United States engages that the subjects of Her Britannic Slajesty shall enjoy
the use of the St. Clair Flats' Canal on terms of equality with the inhabitants
of the United States, and further engages to urge upon the State Governments
THE TREATY OF WASHINGTON. 2G9
to secure to the subjects of Her Britannic Majesty the use of the several State
canals connected with the navigation of the lakes or rivers traversed by or con-
tiguous to tiie boundary-line between the Possessions of the High Contracting
Parties, on terms of equality with the inhabitants of the United States.
Article XXVIII.
The navigation of Lake Michigan shall also, for the term of years mentioned
in Article XXXIII. of this Treaty, be free and open for the purposes of com-
merce to the subjects of Her Britannic Majesty, subject to any laws and reg-
ulations of the United States or of the States bordering thereon not inconsist-
ent witli such privilege of free navigation.
Article XXIX.
It is agreed that, for the term of years mentioned in Article XXXIII. of this
Treaty, goods, M'ares, or merchandise arriving at the ports of New York, Bos-
ton, and Portland, and any other ports in the United States which have been or
may, from time to time, be specially designated by the President of the United
States, and destined for Her Britannic ^Majesty's Possessions in North Ameri-
ca, may be entered at the proper custom-house and conveyed in transit, with-
out the payment of duties, through the territory of the United States, under such
rules, regulations, and conditions for the protection of the revenue as the Gov-
ernment of the United States may from time to time prescribe ; and, under like
rules, regulations, and conditions, goods, wares, or merchandise may be con-
veyed in transit, without the payment of duties, from such Possessions through
the territory of the United States for export from the said ports of the United
States.
It is further agi-eed that, for the like period, goods, wares, or merchandise
arriving at any of the ports of Her Britannic Majesty's Possessions in North
America, and destined for the United States, may be entered at the proper cus-
tom-house and conveyed in transit, without the payment of duties, through the
said Possessions, under such rules and regulations and conditions for the pro-
tection of the revenue as the Governments of the said Possessions may fi'om
time to time prescribe ; and, under like rules, regulations, and conditions, goods
wares, or merchandise may be conveyed in transit, without payment of duties,
from the United States through the said Possessions to other places in the
United States, or for export from ports in the said Possessions.
Article XXX.
It is agreed that, for the term of years mentioned in Article XXXIII. r f
this Treaty, subjects of Her Britannic Majesty may cany in British vessels,
without payment of duty, goods, wares, or merchandise from one port or place
270 APPENDIX.
within tlie territory of the United States upon the St. Lawrence, the Great
Lakes, iiiul tlie rivers connecting the same, to another port or place within the
territory of the United States as aforesaid : Provided, that a portion of such
transportation is made through the Dominion of Canada by land carriage and
in bond, under such rules and reguhations as may be agreed upon between
the Government of Her Britannic Majesty and the Government of the United
States.
Citizens of the United States may for the like period carry in United States
vessels, without payment of duty, goods, wares, or merchandise from one port
or place within the Possessions of Her Britannic Majesty in North America to
another port or place within the said Possessions : Provided, that a portion of
sucli transportation is made through the territory of the United States by land
carriage and in bond, under such rules and regulations as may be agreed upon
between the Government of the United States and the Government of Her Bri-
tannic Majesty.
The Government of the United States further engages not to impose any ex-
port duties on goods, wares, or merchandise carried under this article through the
territory of the United States ; and Her Majesty's Government engages to urge
the Parliament of the Dominion of Canada and the Legislatures of the other
Colonies not to impose any export duties on goods, wares, or merchandise car-
ried under this article ; and the Government of the United States may, in case
such export duties are imposed by the Dominion of Canada, suspend, during the
period that such duties are imposed, tlie right of earning granted under this
article in favor of the subjects of Her Britannic Majesty.
The Government of the United States may suspend the right of carrying
granted in favor of the snl)jects of Her Britannic Majesty under this article, in
case the Dominion of Canada should at any time deprive the citiaens of the
United States of the use of the canals in the said Dominion on terms of equal-
ity with tlie inhabitants of the Dominion, as provided in Article XXVII.
Article XXXI.
The Government of Iler Britannic IMajesty further engages to urge upon the
I'arlinmcnt of tlie 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 the American territory in the State of Maine watered
by the River St. John and its tributaries, and floated down tliat river to the
sea, when the same is shii)ped to the United States from the I'rovince of New
Brunswick. And, in case any such export or other duty continues to be levied
after the expiration of one year from tlie date of tlie exchange of the ratifica-
tions of tliis Treaty, it is agreed tliat tlie Government of the United States may
suspend the right of carrying hereinbefore granted under Article XXX. of this
Treaty for such period as such export or other duty may be levied.
THE TREATY OF WASHINGTON. 271
Article XXXII.
It is further agreed that the provisions and stipulations of Articles XVIII.
to XXV. of this Treaty, inclusive, shall extend to the Colony of Newfoundland
so far as they are applicable. But if the Imperial Parliament, the Legislature
of Newfoundland, or the Congress of the United States, shall not embrace the
Colony of Newfoundland in their laws enacted for carrying the foregoing arti-
cles into effect, then this article shall be of no effect ; but the omission to make
provision by law to give it effect, by either of the legislative bodies aforesaid,
shall not in any way impair any other articles of this Treaty.
Article XXXIII.
The foregoing Articles XVIII. to XXV., inclusive, and Article XXX. of
this Treaty, shall take effect as soon as the laws required to carry them Into
operation shall have been passed by the Imperial Parliament of Great Britain,
by the Parliament of Canada, and by the Legislature of Prince Edward's Isl-
and on the one hand, and by the Congress of the United States on the other.
Such assent having been given, the said articles shall i-emain in force for the
period of ten years from the date at which they may come into operation ; and
further until the expiration of two years after either of the High Contracting
Parties shall have given notice to the other of its wish to terminate the same ;
each of the High Contracting Parties being at liberty to give such notice to the
other at the end of the said period of ten years or at any time afterward.
Article XXXIV.
Wliereas it was stipulated by Article I. of the Treaty concluded at Washing-
ton on the l;jth 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 forty-ninth parallel
of north latitude up to which it had already been ascertained, should be con-
tinued 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
Pacific Ocean;" and whereas the Commissioners appointed by the two High
Contracting Parties to determine that portion of the boundary wliich 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 Govern-
ment of Iler Britannic Majesty shall be submitted to the arbitration and award
272 * APPENDIX.
of His Majesty the Emperor of Germany, who, having regard to the above-
mentioned article of tlie said Treaty, sliall decide thereupon, finally and with-
out appeal, wliich of those claims is most in accordance with the true interpre-
tation of the Treaty of June 15, 184G.
Article XXXV.
The award of His Majesty the Emperor of Germany shall be considered as
absolutely final and conclusive ; and full effect shall be given to such award
without any objection, evasioii, or delay whatsoever. Such decision shall be
given in writing and dated ; it shall be in whatsoever form His JNIajesty may
choose to adopt ; it shall be delivered to the Representatives or other public
Agents of the United States and of Great Britain, respectively, who may be actu-
ally at Berlin, and shall be considered as operative from the day of the date of
the delivery thereof.
Article XXXVI.
The written or printed case of each of the two Parties, accompanied by the
evidence offered in support of the same, shall be laid before His IMajesty the
Emperor of Germany within six months from the date of the exchange of the
ratifications of this Treaty, and a copy of such case and evidence shall be com-
municated by each Party to the other, through their respective Eeprescntatives
at Berlin.
The High Contracting Parties may include in the evidence to be considered
by the Arbitrator such documents, official correspondence, and other official or
public statements bearing on the subject of the reference as they may consider
necessary to the support of their respective cases.
After the written or printed case shall have been communicated by each
Party to the other, each Party shall have the power of drawing up and laying
before the Arbitrator a second and definitive statement, if it think fit to do so,
in reply to the case of the other party so communicated, which definitive state-
ment shall be so laid before the Arbitrator, and also be mutually communicated
in the same manner as aforesaid, by each Party to the other, within six months
from the date of laying the first statement of the case before the Arbitrator.
Article XXXVII.
If, in the case submitted to the Arbitrator, either Party shall specify or allude
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 Arbitrator, to produce the originals or certified copies
of any pajjcrs .idduced as evidence, giving in each instance such reasonable no-
tice as the Arbitrator may require. And if the Arbitrator should desire fur-
THE TREATY OF WASHINGTON. 273
ther elucidation or evidence with regard to any point contained in the state-
ments laid before him, he shall be at liberty to require it from either Party, and
he shall be at liberty to hear one counsel or agent for each Party, in relation to
any matter, and at such time, and iu such manner, as he may think fit.
Article XXXVIH.
The Eepresefitatives or other public Agents of the United States and of
Great Britain at Berlin, respectively, shall be considered as the Agents of their
respective Governments to conduct their cases before the Arbitrator, who shall
be requested to address all his communications, and give all his notices, to such
Representatives or other public Agents, who shall represent their respective
Governments generally in all matters connected with the arbitration.
Article XXXIX.
It shall be competent to the Arbitrator to proceed in the said arbitration, and
all matters relating thereto, as and whAi he shall see fit, either in person, or by
a person or persons named by him for that purpose, either in the presence or
absence of either or both Agents, and either orally or by WTitten discussion or
otherwise.
Article XL.
The Arbitrator may, if he think fit, appoint a secretary or clerk for the
purposes of the proposed arbitration, at such rate of remuneration as he shall
think proper. This, and all other expenses of and connected with the said ar-
bitration, shall be provided for as hereinafter stipulated.
Article XLI.
The Arbitrator shall be requested to deliver, together with his award, an ac-
count of all the costs and expenses which he may have been put to in relation
to this matter, which shall forthwith be repaid by the two Governments in equal
moieties.
Article XLII.
The Arbitrator shall be requested to give his award in writing as early as
convenient after the whole case on each side shall have been laid before him,
and to deliver one copy thereof to each of the said agents.
Article XLIII.
The present Treaty shall be duly ratified by the President of the United
States of America, by and with the advice and consent of the Senate thereof,
s
[l.
s.]
[l.
s.]
[l.
s.]
[l.
s.]
[l.
s.]
[l.
s.]
[l.
s.]
[l.
s.]
[l.
8.]
[l.
s.]
274 ArrENDix.
and by Her Britannic Majesty ; and the ratifications shall be exchanged either
at Washington or at London within six months from the date hereof, or earlier
if possible.
In faith wliereof, we, the respective rienipotentiaries, have signed this Treaty
and have hereunto affixed our seals.
Done in duplicate at Washington the eighth day of J\Iay, in the year of our
Lord one thousand eight bundled and seventy-one.
Hamilton Fish,
eobt. c. schenck.
Samuel Nelson.
Ebenezer Rockwood Hoak.
Geo. H. Williams.
De Ghey & RiPON.
Stafford H. Northcote.
Edwd. Thornton.
John A. Macdonald.
J Mountague Bernard.
And whereas the said Treaty has been duly ratified on both parts, and the
respective ratifications of the same were exchanged in the city of London, on
the seventeenth day of June, 1871, by Robert C. Schenck, Envoy Extraordinary
and Minister Plenipotentiary of the United States, and Earl Granville, Her
Majesty's Principal Secretary of State for Foreign AflTairs, on the part of their
respective Governments :
Now, therefore, be it known that I, Ulysses S. Grant, President of the
United States of America, have caused the said Treaty to be made public, to
the end that the same, and every clause and article thereof, may be observed
and fidfilled with good faith by the United States and the citizens thereof.
In witness whereof, I have hereunto set my hand and caused the seal of the
United States to be affixed.
Done at the City of Washington this fourth day of July, in the year of our
Lord one thousand eight hundred and seventy-one, and of the Inde-
[SEAL.J
pendence of the United States the ninety-sixth.
U. S. Grant.
By the President :
Hamilton Fish,
Secretary of State,
THE DECISION AND AWARD. 275
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, 1871, between Her
Majesty the Queen of the United Kingdom of Great Britain and Ireland
and the United States of America.
Her Britannic Jlajesty and the United States of America having agreed by
Article I. of the Treaty concluded 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 be composed of five Arbitrators, named :
One by Her Britannic Majest}',
One by the President of the United States,
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
Her Britannic Majesty, the President of the United States, H. M. the King
of Italy, the President of the Swiss Confederation, and H. M. the Emperor
of Brazil, having respectively named their Arbitrators, to wit :
Her Britannic Majesty :
Sir Alexander James Edmund Cockbum, Baronet, a Member of Her Maj-
esty's Privy Council, Lord Chief Justice of England ;
The President of the United States :
Charles Francis Adams, Esquire ;
His Majesty the King of Italy :
His Excellency Count Frederic Sclopis of Salerano, a Knight of the Order
of the Annunciata, Minister of State, Senator of the Kingdom of Italy ;
The President of the Swiss Confederation :
Mr. James Sta:mpfli ;
His Majesty the Emperor of Brazil :
His Excellency Marcos Antonio d'Araujo,Viscount of Itajuba, a Grandee
of the Empire of Brazil, Member of the Council of H. M. the Emperor
of Brazil, and his Envoy Extraordinary and Minister Plenipotentiary in
France ;
And the five Arbitrators above named having assembled at Geneva, in Switz-
erland, in one of the Chambers of the Hotel de Ville, on the loth of December,
1871, in conformity with the terms of the Second Article of the Treaty of Wash-
ington of the 8th of May of that year, and having proceeded to the inspection
276 APPENDIX.
and verification of tlieir respective powers, which \vere found duly authenticated,
the Tribunal of Arbitration was declared duly organized.
The Agents named by each of the High Contracting Parties, by virtue of the
same Second Article, to wit :
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-
Secretary of State for Foreign Aflairs ;
And for the United States of America :
John C. Bancroft Davis, Esquire ;
whose powers were found likewise duly authenticated, then delivered to each of
the Arbitrators the printed Case prepared by each of the two Parties, accompa-
nied 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 tlie decision made by the Tribunal at its first session, the Coun-
ter-Case, and additional documents, correspondence, and evidence, referred to in
Article IV. of the said Treaty, were delivered by the respective Agents of the
two Parties to the Secretary of the Tribunal on the IGth of April, 1872, at the
Chamber of Conference, at the Hotel de Ville of Geneva.
The Tribunal, in accordance with the vote of adjournment passed at their
second session, held on the IGth of December, 1871, reassembled at Geneva on
the 1 5th of June, 1872 ; and the Agent of each of the Parties duly delivered to
each of the Arbitrators and to tiie Agent of the other I'arty the printed Argu-
ment referred to in Article IV. of the said Treaty.
The Tribunal having since fully taken into their consideration the Treaty, and
also the cases, counter-cases, documents, evidence, and arguments, and likewise
all other communications made to tliem by the two Parties during the j)rogress
of their sittings, and having impartially examined the same,
Has arrived at the decision embodied in the present Award :
Whereas, having regard to the Sixth and Seventh Articles of the said Treaty,
the Arbitrators are bound under the terms of the said Sixth Article, "in decid-
ing the matters submitted to them, to be governed by the three Rules therein
specified, and by such princii)les of International Law not inconsistent there-
with as the Arbitrators shall determine to have been aitplicable to the case ;"
And whereas the " due diligence " referred to in the first and third of the
said Rules ought to be exercised by neutral Governments in exact proportion
to the risks to which either of the belligerents may be exposed from a failure to
fulfill the obligations of neutrality on their part ;
And whereas the circumstances out of which the facts constituting the sub-
ject-matter of the present controversy arose were of a nature to call for the
exercise on the part of Her Britannic Majesty's Govcnnnent of all possible so-
licitude for the observance of the rights and the duties involved in the Procla-
mation of Neutrality issued by Her Majesty on the 13th day of May, 1861 ;
And whereas the effects of a violation of neutrality committed by means of
THE DECISION AND AWARD. | 277
the construction, equipment, and armament of a vessel are not done away with
by any commission which tiie Government of tlie belHgerent Power benefited
by the violation of neutrality may afterward have granted to that vessel : and
the ultimate step, by which the offense is completed, can not be admissible as
a ground for the absolution of the offender ; nor can the consummation of his
fraud become the means of establisliing his inn&cence ;
And whereas tlie privilege of exterritoriality accorded to vessels of war has
been admitted into the law of nations, not as an absolute right, but solely as a
proceeding founded on the principle of courtesy and mutual deference between
different nations, and therefore can nevw be appealed to for the protection of
acts done in violation of neutrality ;
And whereas the absence of a previous notice can not be regarded as a fail-
ure 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 character incon-
sistent 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 circumstances of time, of persons, or of place,
which may combine to give them such character ;
And wliereas, with respect to the vessel called the Alabama, it clearly results
from all the facts relative to the construction of the ship at first designated by
the "No. 21)0" in the port of Liverpool, and its equipment and armament in
the vicinity of Terceira, through the agency of the vessels called the Aijrippina
and the Bahama dispatched from Great Britain to that end, that the British
Government failed to use due diligence in the performance of its neutral obli-
gations ; and especially that it omitted, notwithstanding the warnings and offi-
cial representations made by the diplomatic agents of the United States during
the construction of the said ' ' No. 290, " to take in due time any effective meas-
ures of prevention, and that those orders which it did give at last for the deten-
tion 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 an*est were so imperfect as to lead to no result, and therefore can not be con-
sidered sufficient to release Great Britain from the responsibility already incurred ;
And whereas, in despite of the violations of the neutrality of Great Britain
committed by the "290," this same vessel, later known as the Confederate cruiser
Alabama, WAS on several occasions freely admitted into the ports of Colonies of
Great Britain, instead of being proceeded against as it ought to have been in any
and every port within British jurisdiction in which it might have been found ;
And whereas the Government of Her Britannic Majesty can not justify itself
for a failure in due diligence on the plea of the insufficiency of the legal means
of action wliich it possessed ;
Four of the Arbitrators, for the reasons above assigned, and the fifth for rea-
sons separately assigned by him, are of opinion.
That Great Britain has in this case fiiiled, by omission, to fulfill the duties
278 APPENDIX.
prescribed in the first and the third of the Rules established by the Sixth Arti-
cle of the Treaty of Washington.
And whereas, with respect to the vessel called the Florida, it results from
all the fiicts relative to the construction of the Orcto in the port of Liverpool
and to its issue therefrom, which facts failed to induce the Authorities in Great
Britain to resort to measures adequate to prevent the violation of the neutrality
of that nation, notwithstanding the warnings and repeated representations of the
Agents of the United States, that Her Majesty's Government has failed to use
due diligence to fulfill 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 co-operation of the British vessel Prince
Alfred at Green Cay, that there was negligence on the part of the British Colo-
nial 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
Floriduy-was nevertheless on several occasions freely admitted into the ports of
British Colonies ;
And whereas the judicial acquittal of the Oreto at Nassau can not relieve
Great Britain from the responsibility incurred by her under the principles of
International Law ; nor can the fact of the entry of the Florida into the Con-
federate port of Mobile, and of its stay there during four months, extinguish the
responsibility previously to that time incurred by Great Britain :
For these reasons,
The Tribunal, by a majority of four voices to one, is of opinion.
That Great Britain has in this case failed, by omission, to fulfill the duties
prescribed in the first, in the second, and in the third of the Bules established
by Article VI. of the Treaty of Washington. .
And whereas, with respect to the vessel called the Shenandoah, it results from
all the facts relative to the departure from London of the merchant vessel the
Sea King, and to the transformation of that ship into a Confederate cruiser
under the name of the Shenandoah, near the island of Madeira, that the Gov-
ernment of Her Britannic Majesty is not chargeable with any failure, down to
that date, in the use of due diligence to fulfill the duties of neutrality ;
But whereas it results from all the facts connected with the stay of the Shen-
andoah at Melbourne, and especially with the augmentation which the British
Government itself admits to have been clandestinely effected of her force by the
enlistment of men within that port, that there was negligence on the part of the
Authorities at that place :
For these reasons, .
The Tribunal is unanimously of opinion.
That Great Britain has not foiled, by any act or omission, to fulfill any of
the duties prescribed by the Rules of Article VI. in the Treaty of Washington,
or by the principles of International Law not inconsistent therewith, in respect
THE DECISION AND AWARD. 279
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 declares that Great
Britain has failed, by omission, to fulfill the duties prescribed by the second and
third of the Rules aforesaid, in the case of this same vessel, from and after her en-
try 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),
The Clarence,
The Tacony, and
The Archer
(Tenders to the Florida),
The Tribunal is unanimously of opinion,
That such Tenders or auxiliary vessels, being properly regarded as accesso-
ries, must necessarily follow the lot of their Principals, and be submitted to the
same decision which applies to them respectively.
And so far as relates to the vessel called the Retribution,
The Tribunal, by a majority of three to two voices, is of opinion,
That Great Britain has not failed, by any act or omission, to fulfill any of
the duties prescribed by the three Rules of Article VI. in the Treaty of Wash-
ington, or by the principles of International Law not inconsistent therewith.
And so far as relates to the vessels called
The Georgia,
The Sumter,
The Nashville,
The Tallahassee, and
The Chickamavga, respectively,
The Tribunal is unanimously of opinion,
That Great Britain has not failed, by any act or omission, to fulfill any of
the duties prescribed by the three Rules of Article VI. in the Treaty of Wash-
ington, or by the principles of International Law not inconsistent therewith.
And so far as relates to the vessels called
The Sallie,
The Jefferson Davis,
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 indemnity claimed 1 y
the United States, the costs of pursuit of the Confederate cruisers are not, in
the judgment of the Tribunal, properly distinguishable from the general ex-
penses of the war carried on by the United States,
280 ArPENDix.
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 can not properly be made the subject of
compensation, inasmuch as they depend in their nature upon future and uncer-
tain contingencies,
Tiie 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 compensation for the dam-
ages which have been sustained, it is necessary to set aside all double claims for
the same losses, and all claims for ' ' gross freights " so far as they exceed ' ' net
freights;"
And whereas it is just and reasonable to allow interest at a reasonable rate ;
And whereas, in accordance with the spirit and the 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 de- '
liberation 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 majority of four voices to one, awards to the United
States the sum of fifteen millions five hundred thousand Dollars in gold as the
indemnity to be paid by Great Britain to the United States for the satisfaction
of all the claims referred to the consideration of the Tribunal, conformably to
the provisions contained in Article VII. of the aforesaid Treaty.
And, in accordance with the terms of Article XI. of the said Treaty, the Tri-
bunal declares that all the claims referred to in the Treaty as submitted to the
Tribunal are hereby fully, perfectly, and finally settled.
Furthermore, it declares that each and every one Of the said claims, whether
the same may or may not have been presented to the notice of, 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 conformity with the provisions of Article Vll. 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.
(Signed) C. F. Adams.
(Signed) Fredkuic Sclofis.
(Signed) St^emi'fli.
(Signed) Vicomte d'lxAJUBA.
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