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tions which shall come before the said Joint High Commission." The British Commissioners received a broader power, which was stated to be conferred upon them "for the purpose of discussing in a friendly spirit" "the various differences which have arisen" between Great Britain and the United States, "and of treating for an agreement as to the mode of their amicable settlement."

Taking these powers and the correspondence between Mr. Fish and Sir Edward Thornton together, it is evident that each Government contemplated that all the differences between the two Governments within the range of the correspondence were to be discussed with a view to reaching a mode of settlement.

Among the Commissioners named on the part of the United States was Mr. Fish, the Secretary of State, one of the parties to the preliminary correspondence which led to the Treaty; and among those on the part of Great Britain was Sir Edward Thornton, the other party to that correspondence.

(p) The subject of the Alabama claims was opened at the fourth conference by an elaborate statement from the American commissioners.2

The Alabama claims.

The American comtheir understanding

those words.

They stated that "in consequence of the course and conduct of Great Britain during the Rebellion" the United States had missioners state sustained a great wrong, and had also suffered "great losses of the meaning of and injuries upon their material interests." Thus, in the outset, they drew a distinction between certain political differences which had been the subject of some correspondence between the two Governments, and the material losses and injuries which could be estimated and indemnified by pecuniary compensation. They then went on to state their views more in detail as to such losses and injuries.

In order to bring them within the letter of the correspondence, and to define their understanding of the meaning of the language there used by Mr. Fish and by Sir Edward Thornton, they began by tracing these losses and injuries to the Alabama and the other cruisers. They said that "the history of the Alabama and other cruisers which had been fitted out, or armed, or equipped, or which had received augmentation of force in Great Britain, or in her 'colonies,' showed the losses and injuries for which they are claiming indemnification."

They then said that the damage which they had suffered from these injuries was two-fold: 1st. That which had proximately resulted from the acts of the cruisers, "the capture and destruction of a large number of vessels with their cargoes," and "the heavy expenditures in the pursuit of the cruisers ;" and 2d, other injuries resulting less directly, though not less certainly-namely, "the transfer of a large part of the American commercial marine to the British flag," "the enhanced payments of insurance," "the prolongation of the war," "and the addition of a large sum to the cost of the war, and the suppression of the rebellion."

Thus Mr. Fish, one of the parties to the preliminary correspondence, and his colleagues, explained to Sir Edward Thornton, the other party to the correspondence, and to his colleagues, that the history of the cruisers showed all these losses and injuries; in other words, that they all grew out of the acts of those cruisers.

The American Commissioners next expressed their conviction that the history of the cruisers showed "that Great Britain, by reason of failure in the proper performance of her duties as a neutral, had become justly liable for the acts of those cruisers and of their tenders."

1 Brit. App., vol. iv, paper xii, p. 6.

2 Ibid., p. 8.

mode of ascertaining

They then turned to the consideration of the damage which the United States had suffered from this class of injuries. They They propose a stated the amount of the claims for the destruction of private the amount of the property which had up to that time been presented. They damages. indicated a manner in which the amount of the expenses for the pursuit of the cruisers could be ascertained. They added that they had not yet made an estimate of the other damages less proximately resulting from the injuries complained of, because they "hoped for au amicable settlement." This, however, was not to prejudice them "in the event of no such settlement being made." They thus distinctly declared that these classes of injuries also were capable of being estimated and pecuniarily indemnified; and they reserved the right to claim such indemnity.

And that payment

They closed their elaborate statement by proposing that the desired amicable settlement should be made within the walls of the room in which the conference was held, by means of an thereof should be agreement "upon a sum which should be paid by Great Britain to the United States in satisfaction of all the claims and interest thereon."

made.

Such an arrangement, in connection with the other provisions of the Treaty, would indeed have constituted a settlement, and an This would have amicable one. It would have been a settlement, because, been an amicable setbeing a discharge of the obligation, it would have ended all

tlement;

controversy. It is not an amicable settlement, it is not in any sense a settlement, to engage in a protracted lawsuit, as the two Governments have been constrained to do, in consequence of the British Government refusing to enter into the amicable arrangement proposed by the United States.

It has been asserted that this proposal was a "waiver" of the claims classed as 66 indirect." So far from that being the case, the But no waiver of proposal contemplated that the payment of a gross sum any class of claims. was to be made and accepted as a "satisfaction of ALL the claims." Such a payment and such an application of the payment are utterly inconsistent with the idea of a waiver of any of the claims.

The attitude of Mr. Fish on this occasion, and of the other American Commissioners, was in perfect accord with the constant previous attitude of the American Government, as explained by Mr. Seward in his dispatch to Mr. Adams of January 13, 1868.1

Lord Stanley seems to have resolved that the so-called Alabama claims shall be treated so exclusively as a pecuniary commercial claim as to insist on altogether excluding the proceedings of Her Majesty's Government in regard to the war from consideration in the Arbitration which he proposed. On the other hand, I have been singularly unfortunate in my correspondence if I have not given it to be clearly understood that a violation of neutrality by the Queen's proclamation, and kindred proceedings of the British government, is regarded as a national wrong and injury to the United States.

The British commissioners without delay declined the The proposal deAmerican proposal for an amicable settlement.

clined;

Without exception

the term "Alabama

Sir Edward Thornton, the other party to the preliminary correspondence, and his colleagues, listened without objection to Mr. Fish's definition of the sense in which the phrase "Alabama to the definition of claims" had been used in that correspondence; nor did claims. they at any time take exception to it, or propose to limit it. On the contrary, they expressly declined to reply in detail to the statement of the American Commissioners.

1 Am. App., vol. iii, p. 688.

A reference pro

After rejecting the "amicable settlement," proposed by the American Commissioners, the British Commissioners next suggested posed by Great Brit- the substitution of a litigious "mode of settlement" in its place, viz, a lawsuit or arbitration, wherein all liability to the United States for the injuries complained of should be denied and contested.

ain.

Unwillingly ac

The American Commissioners regarded this as a very different adjustment from the one which they had proposed. They unwil cepted by the United lingly, and under conditions, accepted the British sug gestion to refer to Arbitrators the full statement of injuries which they had just made, and which the British Commissioners had received without cavil.

States.

The Treaty of Washington.

Meaning of "ami. cable settlement"

(q) After a discussion of several weeks the Joint High Commissioners agreed upon a Treaty.

The preamble of this instrument recites that "the United States of America and Her Britannic Majesty, being desirous to provide for an amicable settlement of all causes of difference between the two countries, have for that purpose appointed their respective plenipotentiaries."

This statement is recitative and historical, and must be taken to be strictly true in the sense in which it was written.

It therefore does not lie in the mouth of either party to the Treaty to deny that each Government, in appointing its Commissioners, desired to provide for an amicable settlement of the San Juan water boundary, of the navigation of the Saint Lawrence, of the Canadian fisheries, of the navigation of Lake Michigan, of the use of the navigable rivers in Alaska, and of the claims of British subjects for losses arising out of acts committed against their persons or their properties, as well as of the Alabama claims.

But when it is attempted to confine the words of this preamble to a single one of the subjects grouped in the Treaty, and to transfer the operation of its language from the Governments of whom the affirmations are made to subjects disposed of in the treaty, it is an evident perversion of the purpose which the parties had in view. For the Treaty itself immediately makes it clear that the parties did not understand that the arragement as to the Alabama claims was an "amicable settlement."

It is declared that the agreements in this respect are made in order "to provide for the speedy settlement of such claims." If an "amicable settlement" of these claims had just been made, it is not to be supposed that the parties would enter into a formal agreement for their "speedy settlement" in the future.

The means for reaching this speedy settlement form the subject of the Claims for reference enacting clause of the Treaty. It is there provided "that under the Treaty. all the said claims growing out of the acts of the aforesaid vessels, and generically known as the 'Alabama claims,' shall be referred to a Tribunal of Arbitration."

This language is nearly identical with the language of the correspondence between Mr. Fish and Sir Edward Thornton; by repreliminary corres- ferring to what has preceded the Arbitrators will see that the change is one of taste, not of sense; of form, not of sub

The same which were described in

pondence.

stance.

We look in vain in it for a waiver of any of the demands made by Mr. Fish at the fourth conference. If the parties, after such specific notice, had intended to withdraw from the scope of the Arbitration any of those demands, or to provide that any of the injuries

No waiver of indirect claims.

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to the United States growing out of the acts of the cruisers were not to be considered by the Arbitrators, the limitation would undoubtedly have found a place in this part of the Treaty. It is clear, therefore, that there was no such purpose.

Having provided a manner for giving the Tribunal jurisdiction over the subject of the reference, the Treaty next defines the extent of that jurisdiction.

The Arbitrators are to determine, 1st, whether the United States have suffered any of the specified injuries, that is, any inju- Powers of the Triries growing out of the acts committed by the cruisers; 2d, bunal whether Great Britain is liable to indemnify the United States for any of those injuries, and if so, for which ones; and, 3d, it is provided that, in case the Tribunal finds that Great Britain has failed to fulfill any duty or duties as aforesaid, it may, if it thinks 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; but it is nowhere stated or intimated that in reaching that gross sum any part of the injuries to the United States which may be shown to grow out of the acts of the cruisers are to Power to be or may be disregarded by the Arbitrators. Mr. Montague damages not limited Bernard in his lecture on the Treaty has fairly admitted this. He says: The Treaty of Washington is carefully framed to embrace only specific claims, such as had previously become known to both Governments under the name of the "Alabama claims," for losses and damages caused by the acts of certain vessels, of which the Alabama was the typical instance; further, the losses must be such as can be fairly ascribed to some failure of duty on the part of England in respect of these vessels; and in making an award each vessel is to be taken separately. But, beyond this, the Treaty does not define, by express words of limitation, the nature of the losses on account of which compensation may be awarded, should the Arbitrators decide that any compensation is due. On this single point a disagreement has arisen between the two Governments.1

assess

Views of Mr. Ber

nard.

That is true; the Treaty does not contain any express words of limitation. Nor does it contain any words to imply or suggest limitation. On the contrary the words are unequivocally and explicitly general, not to say universal, as comprehending all claims of the "specific" class; that is, "Alabama claims." The assumption that there is such limitation is a contradiction of the express language and the plain meaning of the Treaty.

Twelfth article of

It appears from all this that the Arbitrators received by the Treaty full jurisdiction over all the claims presented and defined by the American Commissioners at the opening of the fourth conference. This conclusion receives a significant support from the twelfth article of the Treaty. That article provides for the creation of another and the treaty. an independent Tribunal, which is also to have juridical powers for finding injuries and awarding damages. The claims to be submitted to such Tribunal are defined to be "claims on the part of corporations, companies, or private individuals, citizens of the United States, upon the Government of Her Britannic Majesty," and "claims on the part of corporations, companies, or private individuals, subjects of Her Britannic Majesty, upon the Government of the United States." Great care is thus taken to limit the jurisdiction of the tribunal created by Article XII to the consideration of injuries suffered by individuals, companies, or corporations. But the Tribunal of Arbitration at Geneva is invested by the terms of Article I with the jurisdiction over "all the claims on the part of the United States growing out of the acts" committed by the cruisers. The limitation to individual claims which is found in the twelfth article, is not found in the first article. On the contrary Lecture on the Washington Treaty, May 28th, 1872, London Times, 29th May, 1872.

the language widens out with the evident purpose of enabling the court to become possessed of complete jurisdiction of the case.

(r) Four of the five British Commissioners have made public statements regarding these negotiations. No two of them agree.

cote.

Sir Stafford Northcote for instance has said, that "the Commissioners Sir Stafford North Were distinctly responsible for having represented to the Government that they understood a promise to be given that these claims were not to be put forward, and were not to be submitted to Arbitration." 1

But Lord Ripon says:

If Her Majesty's Commissioners had been induced by any such understanding to employ language which in their judgment admitted these claims, they would be liable to just and severe blame.'

Lord Ripon,

And yet Mr. Montague Bernard says, as if in apology for the language of the Treaty:

Mr Bernard.

It is often necessary for the sake of agreement to accept a less finished or even less accurate expression instead of a more finished or more accurate one, and which must be construed liberally and reasonably, according to what appears to be the true intention of the contracting parties.3

tocol II.

All reasoning from recollections and understandings ought to disEvidence from Pre- appear in reading the protocol of the second conference of the Joint High Commission, where it is stated that "at the commencement of the conference the United States High Commissioners called attention to the provision in the Constitution of the United States, by which the advice and consent of the Senate is required for the ratification of any Treaty which may be signed under the authority of the President."

It ought not to be credited that Her Majesty's High Commissioners, after such a notice, would have been content to rely upon any promise of the American Commissioners to protect Great Britain against a class of claims which, without such promise, were apparently included in the operative words of the Treaty sent to the Senate for its constitutional action. This conclusion is strengthened by the fact that Lord Ripon, Sir Stafford Northcote, and Mr. Montague Bernard left the United States before the Senate had acted upon the Treaty, and had no opportunity to know what affected the action of that body.

They proceeded to England. Soon after their arrival there the Treaty became the subjectof discussion in each House of Parliament.4

Debate in Parliament.

Earl Granville, in the House of Lords, made a speech, in which he used expressions which have since been much commented upon. Lord Granville. He said that "the pretensions" advanced by Mr. Fish "en

London Times May 28, 1872. Sir Stafford Northcote explains his meaning in a note read by Lord Derby in the House of Lords, and printed in the London journals of the 9th of June, 1872:

"It has been supposed, and you seem to have supposed, that I said that an understanding existed between the British and the American negotiators that the claims for indirect losses should not be brought forward, and it has been inferred from this that we, relying upon that understanding, were less caretul in framing the Treaty than we should otherwise have been.

"That is incorrect. What I said was that we had represented to our Government that we understood a promise to have been given that no claims for indirect losses should be brought forward. In so saying I referred to the statement voluntarily and formally made by the American Commissioners at the opening of the conference on the 8th March, which I for one understood to amount to an engagement that the claims in question should not be put forward in the event of a Treaty being agreed on." 2 London Times, June 5, 1872. 3 London Times, ut supra.

4 House of Lords, Hansard, N. S., vol. 206.

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