XIII.-NATURE AND AMOUNT OF DAMAGES CLAIMED BY THE UNITED STATES. I. PREFATORY CONSIDERATIONS. 1. The Counsel of the United States assume that, in the foregoing observations, and the proofs which they have adduced and expounded, they have established the responsibility of the British Government in the premises. General conclusions. The legal character of this responsibility is defined by the Treaty of Washington. It is matter of express contract between the two Govern ments. The contracting parties, in the first place, agree to certain "Rules," by which the conduct of the British Government in the premises is to be judged. These "Rules" constitute the principles, upon which it is to be conventionally assumed that the British Government acts, as to the questions here at issue. These "Rules" profess to define the general obligations of a neutral Government. They expressly set forth to what such a government is bound. They are understood by the tenor of the treaty to define expressly what the British Government was bound, in the occurrences debated, to do or not to do with respect to the United States. 2. The Counsel of the United States have applied these Rules to the acts of commission or omission of the British Government, with conclusion as follows: (a) The British Government did not use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of certain vessels, which it had reasonable grounds to believe were intended to cruise or carry on war against the United States. (b) The British Government did not use like diligence to prevent the departure from its jurisdiction of certain vessels to carry on war against the United States, such vessels having been specially adapted, in whole or in part, within such jurisdiction, to warlike use. (e) The British Government did permit or suffer the belligerent Rebels of the United States to make use of the ports or waters of Great Bitain as the base of military operations against the United States, or for the purpose of renewal or augmentation of military supplies or arms, or the recruitment of men for naval warfare. (d) The British Government did not use due diligence in its own ports and waters, and as to all persons within its jurisdiction, to prevent any violation of the stipulated rules, (Article VI.) (e) Finally, the British Government has failed to fulfill certain duties, recognized by the principles of international law, not inconsistent with the foregoing "Rules." Great Britain re of the cruisere. 3. We think we have shown that the British Government is responsible under these Rules for all, or at any rate for certain, of sponsible for the acts the cruisers in question. If the Arbitrators come to the same conclusion, then they are to award a sum in gross for the claims referred to them, to be paid by Great Britain to the United States; or, after deciding the failure of the British Government to fulfill its duties as aforesaid, they may remit the question of amount to asses sors to determine what claims are valid, and what amount shall be paid on account of the liability arising from such failure, as to each vessel, according to the extent of such liability, as decided by the arbitrators, (Article X.) Thus it appears that the Treaty provides, by various forms of expression, that the liability of Great Britain to pay follows on the conviction of Great Britain of failure to perform her duty in the premises, in conformity with the law of nations and the contract "Rules." 4. What is the measure of this liability? Such is the question which remains to be discussed. Measure of lia The Counsel of the United States respond to this question bility considered. in general terms as follows: The acts of commission or omission charged to the British Government in the premises constituted due cause of war; in abstaining from war, and consenting to substitute indemnity by arbitration for the wrongs suffered by the United States at the hands of Great Britain, the United States are entitled to redress in damages, general and particular, national and individual, co-extensive with the cause of war, that is to say, sufficient to constitute real indemnification for all the injuries suffered by the United States. The Tribunal, in order to give such complete indemnity to the United States, would have to take up and consider each one of the heads of claim set forth in the American Case. These are: Claims of losses set forth in the American Case. (a) The claims for private losses growing out of the destruction of vessels and their cargoes by the insurgent cruisers. (b) The national expenditures in pursuit of those cruisers. (c) The loss in the transfer of the American commercial marine to the British flag. (d) The enhanced payments of insurance by private persons. (e) The prolongation of the war, and the addition of a large sum to the cost of the war, and of the suppression of the Rebellion. 5. All these claims are, as we conceive, clearly comprehended in the positive terms of the Treaty. These claims all terms of the Treaty. Whether any of such claims, or any part of them, are comprehended in the so remote in their nature in relation to the acts of the Confederate cruisers as to demand rejection by application of the rule of ordinary law, "Causa proxima, non remota spectatur," is a juridical question to be argued as such before the tribunal on the facts, not a question of the tenor of the Treaty. 6. All the claims enumerated are of losses "growing out of the acts" of the Confederate cruisers; all of them are the actual consequences of those acts; whether to be allowed as proximate consequences, or to be disallowed as remote consequences, it is for the Tribunal to decide. Such comprehensiveness of the Treaty is, in the opinion of the Counsel of the United States, the apparent meaning of the Treaty; it is the only grammatical meaning, it is the logical meaning, it is the true meaning of the Treaty. The Treaty, in words of unmistakable universality, submits to the Tribunal all differences, all claims, all questions growing out of the acts of the cruisers under consideration. The language is unequivocal. There is no exception of any particular class or speciality of "difference," " of claim," of question, " growing out of the acts of such cruisers." Not a word is said of direct claims, or of indirect claims. If any such exception were contemplated or intended by either party, he abstained from inserting it, or any hint of it, in the Treaty itself. II. QUESTION OF JURISDICTION. The Agent of the British Government, by a letter communicated to the Arbitrators on the 15th of April, informed them that a misunderstanding had arisen between the two Governments as to "the nature and extent of the claims referred to the Tribunal;" and the Agent of the United States in reply reserved to his Government the right to vindicate the disputed jurisdiction of the Tribunal before the Arbitrators. This we shall now proceed to do. Great Britain con 1. The British Government contends that certain so-called "indirect claims" are not included in the Arbitration. We contend tends that the claims that the Treaty itself contains no sentence, expression, or acope of the Arbitra: Word, to justify this assumption. On that point we appeal to the text, inspection of which is decisive and conclusive of styled indirect are not within the tion. the question. The term "indi 2. The British Government in effect seems to admit that the text of the Treaty is all-comprehensive in description of the nature rect" not found in of the claims, as claims growing out of the acts of certain vessels, and leaving no subject of inquiry, save in the descriptive words "generically known as Alabama claims," that is, by reference to the principal vessel of the class. the Treaty. But this expression, "generically known as Alabama claims," does not involve any question of "direct" or "indirect." No such distinction is implied in the words themselves, or in the context. 3. Accordingly, the British Government insists, not so much on the language of the Treaty, as what they intended when they United States to the assented to it. Rejoinder of the British assumption. To this assumption it is obvious to reply, first, that no such intention is expressed in the Treaty; that such intention was not the understanding of the United States; that if Great Britain had any such intention she should have insisted on its insertion in the Treaty; that as both parties used the same language, there could be no room for misapprehension in this respect; that the intention of parties to a contract is recorded in the contract; and that if, by reason of equivocal language, any doubt arises, it is not for either of the parties to assume to decide the question, but it is a question for the decision of the Tribunal. The Counsel of the United States are, however, prepared to show that Great Britain had ample notice of the extent of the submission as it was understood by the United States; that is to say, the claims of the United States, in the whole extent of the American Case, were again and again presented to the consideration of the British Government, both before and during the negotiation of the Treaty, as appears by the documents. annexed to the Case. This we shall presently proceed to show. 4. Before doing this, we call more particular attention to the equivocal nature of the expression "indirect damages" or "direct versy, is equivalent damages," as employed by the British Government. To what injuries or losses do these words refer? Remote consequential injuries or losses? By no means; but chiefly to the immediate national injuries suffered by the United States. "Indirect," as used in this contro to national." The discussions on the part of the British Government are founded upon the assumption that the injuries which one nation does to another as a nation are indirect injuries. We think that such injuries are, on the contrary, emphatically direct in their very nature. 5. To the specification of such claims, when they come to be considered in detail, objection may be made, that such or such particular loss is re mote and not proximate; but that is a question which arises in the consideration of the facts. It in no respect affects the generality or comprehensiveness of the expression "all claims growing out" of certain acts. 6. In order to demonstrate that the British Government ought not to have been ignorant of the precise claims now objected to, under whatever name the subject of negotiation, we now proceed to cite the documentary proofs. The word "indirect" used in the negotiation which re (a) The Joint High Commissioners, in their negotiations which preceded the Treaty of Washington, made use of the terms "indirect losses" and "direct losses," and these terms were subsequently transferred from the protocols of the conferences of the negotiations to the American Case. (b) In the public discussions which have since arisen, the apparently been received in a different sense from that in which they were employed by the negotiators, and accepted by the two Governments. sulted in the treaty. terms have Used in the same sense in this discus It has been assumed by many persons, who were but partially acquainted with the history of the negotiations, that the United States are contending before this Tribunal to be indemnified for several independent series of injuries; whereas they do, in fact, ask reparation but for one series of injuries, namely, those which they, as a Nation, either directly or through their citizens, and the persons enjoying the protection of their flag, have suffered, by reason of the acts committed by the several vessels referred to in their case, which are generically known as the Alabama claims. When the Treaty was signed, both parties evidently contemplated a discussion before the Arbitrators of all the damages which could be shown or contended to have resulted from the injuries for which the United States were seeking reparation. What claims are within the jurisdietion of the Tribunal. (c) In order to bring any claim for indemnity within the jurisdiction of the Tribunal, the United States understand that it is necessary for them to establish: 1st, that is a claim; 2d, that at the date of the correspondence between Sir Edward Thornton and Mr. Fish, which led to the Treaty, it was generically known as an Alabama claim; and, 3d, that it grows out of the act of some one of the vessels referred to in their Case. They also understand that the Tribunal of Arbitration has full jurisdiction over all claims of the United States which can be shown to possess these three attributes. A review of the history of the negotiations between the two Governments prior to the correspondence between Sir Edward. Thornton and Mr. Fish, will show the Tribunal what was tations intended by these words, "generically known as the Alabama claims," used on each side in that correspondence. Resume of negorespecting Alabama claims. "redress for private inju. ries." (d) The correspondence between the two Governments was opened by Mr. Adams on the 20th of November, 1862, (less than four Mr. Adams, Nomonths after the escape of the Alabama,) in a note to Earl vember, 1962. asks Russell, written under instructions from the Government of and national the United States. In this note Mr. Adams submitted evidence of the acts of the Alabama, and stated: "I have the honor to inform your Lordship of the directions which I have received from my Government to solicit redress for the national and private injuries thus sustained."1 Thus the Government of the United States in the outset notified Her Majesty's Government that it would expect indemnification from Great Britain for both the national and the individual losses, and Lord Russell met this notice on the 19th of December, 1862, 1 American Appendix, vol. iii, pp. 72, 73. Liability denied by Great Britain. by a denial of any liability for any injuries growing out of the acts of the Alabama.1 United States reTuse their claims. When this decision was communicated to the Government of the United States, Mr. Seward informed Mr. Adams that that to relinquish Government did "not think itself bound in justice to relinquish its claims for redress for the injuries which have resulted from the fitting out and dispatch of the Alabama in a British port." This statement could have referred only to the claims for national and for individual redress which had been thus preferred and refused. Many claims As new losses from time to time were suffered by individuals during the war, they were brought to the notice of Her Majesty's lodged during the Government, and were lodged with the national and individual claims already preferred; but argumentative discussion on the issues involved was by common consent deferred.2 war, but discussion deferred. In the course of these incidents, Mr. Adams had an interview with Earl Russell, (described in a letter from Lord Russell to Lord Lyons, dated March 27, 1863,) in which, referring to the well-known and permitted conspiracy organized in Great Britain to carry on war against the United States through a naval marine created in British waters, and to the means ostentatiously taken to raise money in London for that purpose, he said, that there was "a manifest conspiracy in this country [Great Britain] to produce a state of exasperation in America, and thus bring on a war with Great Britain, with a view to aid the Confederate cause." And on the 23d of October in the same year, (1863,) Mr. Adams proposed to Earl Russell for the settlement of these claims " some fair and conventional form of arbitrament or reference."3 It does not appear that during the war the exact phrase " Alabama claims," was used in the correspondence between the two all the claims Ala- Governments. But it does appear that, in the note in which bama claims." the claims of the United States for the injuries growing out of the acts of the Alabama itself were first preferred, the United States presented the claims of their citizens for the losses in the destruction of the Ocmulgee, and some other vessels, by the Alabama, and also their own claim for national injuries caused by the acts of the same vessel; and that liability for all such injuries being denied by Great Britain, and re-asserted by the United States, the discussion was reserved for a more convenient time by common consent. Reasons for calling When, as already stated, new injuries were received from the acts of other vessels, as well as from acts of the Alabama, claims therefor were added to the list to be all taken up together when the time should arrive. The fact that the first claim preferred grew out of the acts of the Alabama explains how it was that all the claims growing out of the acts of all the vessels came to be "generically known as the Alabama claims." In April, 1865, discussion. On the 7th of April, 1865, the war being virtually over, Mr. Adams renewed the discussion. He transmitted to Earl Russell an United States renew official report showing the number and tonnage of American vessels transferred to the British flag during the war. He said, "The United States commerce is rapidly vanishing from the face of the ocean, and that of Great Britain is multiplying in nearly the same ratio." "This process is going on by reason of the action of British subjects in co-operation with emissaries of the insurgents, who have |