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.2

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. He said that "the pretensions" advanced by Mr. Fish " en

Lord Granville.

1 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 careful 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.” 3 London Times, ut supra.

2 London Times, June 5, 1872.

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

tirely disappear under the limited reference which includes merely complaints arising out of the escape of the Alabama." Could anything have been more inaccurate than this brief, even bald, expression? We shall soon notice this speech further. At present it is sufficient to say that Lord Granville himself probably would not now contend that it was in any sense a correct statement of the effect of the operative clause of the first article of the treaty. Lord Cairns immediately challenged it. He said:

Lord Cairns says the indirect claims in.

I quite concur in the opinion that, under the Arbitration proposed by my noble friend, the late Foreign Secretary, and Lord Clarendon, it was quite possible for the United States to have made extravagant claims. But what is there in the present Treaty to prevent the same thing? I cannot find cluded in the treaty one single word in these protocols or in these Rules which would prevent such claims being put in and taking their chance, and under the Treaty proposed by my noble friend they could do more. There is this difference in a controversy of this kind between leaving all questions open to an Arbitrator or Arbitrators in whom you have confidence, and in referring these questions to these arbitrators with certain cut and dried propositions unfavorable to your views of the case. Suppose I charge a man with burning my house, and tell him that I hold him answerable for all the damages that ensue; and he said, "You have no power whatever. I happened to be passing at the time, and I saw a great number of men attacking your house and burning it. It was not in my power to prevent them doing it. I am sorry to see what happened, and I will refer the whole question to Arbitration." I should be quite willing to say, I am perfectly prepared to refer the question to Arbitration if there is an article in the agreement providing that any person passing by while other persons were setting fire to my house, and did not stop them, is answerable for all the civil consequences of the house improperly being destroyed. Of course, if a man is so foolish as to consent to such an arrangement, he must not be surprised when he is made responsible for all the dam

age.

His construction

These remarks of Lord Cairns were the only ones made during that debate which can aspire to be regarded as a criticism upon the operative part of the first section of the Treaty. They not questioned were full, precise, learned, and not open to doubt. Lord Ripon, who had negotiated the Treaty, was present at that debate. Lord Granville, who had from day to day, through the Atlantic cable, instructed Lord Ripon and his colleagues in the course of the negotiations, was also present. The Duke of Argyll, the Lord Chancellor, and Lord Kimberley, all Cabinet Ministers, were there. Did any or either of them dissent from Lord Cairns's opinions? If they did, the official records of the debates do not show it, although all of them spoke in the debate.

So far as the views of Lord Ripon can be gathered from a speech made by him in the same debate, they were in accord with Lord Ripon's views.

those of the United States. He said:

Now, so far from our conduct being a constant course of concession, there were, as my noble friend behind me (Earl Granville) has said, numerous occasions on which it was our duty to say that the proposals made to us were such as it was impossible for us to think of entertaining. Nothing can be more easy than to take the course adopted by my noble friend opposite, (the Earl of Derby,) and to say that all the demands we resisted were so preposterous that it would have been absurd to entertain them, while those upon which concession was made were the only ones really in dispute. My noble friend says that no Arbitrator would have entertained a claim for what the Americans term our premature recognition of belligerent rights and the consequent prolongation of the war. That may be true; but in the convention to which my noble friend appended his name, it would have been open to the Americans to adduce arguments on that point.

Is it not the fair, is it not the only conclusion to be derived from this language, that, while in the Treaty the United States abandoned their "claims for the premature recognition of belligerent rights, and the consequent prolongation of the war," they adhered to all the claims growing out of the acts of the cruisers as they had been defined in the protocol? Expressio unius, exclusio alterius.

In the debate in the House of Commons, on the 4th of August, Sir Stafford Northcote spoke. His speech was reported in the Times of the next day. He said, regarding the previous

Sir Stafford Northcote.

conventions: They [the United States] might have raised questions with regard to what they called England's premature recognition of belligerency, and the consequential damages arising from the prolongation of the war, and with regard also to other questions which this country could not have admitted. Instead of this being the case, however, the Treaty, as actually concluded, narrowed the questions at issue very closely by confining the reference solely to losses growing out of the acts of particular vessels, and so shutting out a large class of claims upon which the Americans had heretofore insisted.

Thus, according to Sir Stafford Northcote, also, the claims abandoned by the United States were those "growing out of" "the premature recognition of belligerency." He evidently did not think that they had abandoned any of their claims "growing out of the acts of the vessels;" otherwise he would have said so. On the contrary, he said that the "large class of claims upon which the Americans had heretofore insisted" were to be "shut out," not because they were expressly excluded by the terms of the Treaty, but because, "by confining the reference solely to losses growing out of the acts of particular vessels," the parties. had, in his judgment, made it impossible for the United States to connect the objectionable claims with what the treaty pointed out as the only cause of the injuries which the Arbitrators could regard.

The United States thought that it was possible to make such a connection, and so they stated in their Case. The conflicting revelations of the several Commissioners which have followed, justify Sir Stafford Northcote in his remark, that "in order to maintain a thorough good feeling between the two countries, it was better * * * that the public of England and America should see the result at which the Commissioners had arrived, without going into all the questions raised and discussed in the course of the negotiations."

More than that, they show the wisdom of the decision of Her Majesty's Government, announced by Lord Granville in his speech in the following language:

At their very first meeting the American and the British Commissioners came to au agreement that they would keep secret their discussions, and that, though accounts of them would be communicated to their respective Governments, yet they were to be considered as confidential, and not to be published. I may add, that I have not the lightest doubt of the wisdom of the course pursued by the British and American Commissioners. They had thirty-seven long sittings; and I will venture to say that if every one of the ten Commissioners-not to mention the two able secretaries--had thought it incumbent upon them to show their patriotism and power of debate for the admiration of the two hemispheres, the thirty-seven sittings would have been multiplied by at least ten times, while the result of their deliberations would have been absolutely nil. I think the Commissioners on both sides acted advantageously to their respective Governments. The representations of both displayed great zeal, ability, patience, temper, and an honest desire to come to some compromise, even though the difficulties appeared at first sight to be irreconcilable. The noble earl (Earl Russell) thinks that whenever the Americans proposed anything it was immediately accepted. This, however, was by no means the case. The fact is, that the Americans, in perfect good faith, laid down a great many conditions which the British Commissioners at once declined to accede to, and even refused to refer for consideration to the Government at home. Many other propositions that were made were referred back to Her Majesty's Government, the commissioners thinking it their duty to inform Her Majesty's Government that upon their answer in the affirmative or negative the continuance of the negotiations might depend. In considering several of those questions Her Majesty's Government felt that there would be a great responsibility in breaking off the negotiations, and that in such an event ridicule almost would be brought upon the Commissioners and ourselves. Nevertheless, we at once declined to yield in every case where we deemed it our duty not to yield. With regard, however, to other points, such as those relating to forms of expression, and which did not conflict with the real objects of the Treaty, we willingly either acquiesced in the proposal or else made counter proposals, which were met in the same spirit of fairness by the American Commissioners.

a Treaty

Conclusions.

When Lord Cairns heard this statement he said, this is " upon which the Government did not merely give a final approval, but for the daily composition of it they were virtually responsible." The Counsel of the United States, therefore, feel themselves justified in asssuming that such masters of the English language as Mr. Gladstone, Lord Granville, the Lord Chancellor, the Duke of Argyll, and other members of the British Cabinet, must have been aware of the extent of the operative words of the first article of the Treaty, and must have seen that it contained no waiver of the indirect claims, or limitation of the powers of the arbitrators. They did not object to it, and it must have been because they felt that they had protected Great Britain by the condition which they had imposed upon the United States, obliging them to trace all their complaints of injury to the acts of the cruisers as the originating cause of the damage.

(s) The signature of this Treaty terminated the third stage of the negotiations between the two Governments. It left the Parties solemnly bound to invite other Powers to join them in creating a Tribunal to take jurisdiction of "all the said claims growing out of acts committed by the aforesaid vessels, and generically known as the 'Alabama claims."" To bring a complaint within that definition, it must be a claim; that is, an injury for which the United States demand pecuniary compensation. The evidence is overwhelming that from the commencement they have demanded compensation for their national injuries, as well as for the injuries to their citizens, growing out of the acts of the vessels.

It must also have been generically known as an Alabama claim. The evidence is equally conclusive that the American Commissioners understood that the national and private injuries set forth in the American statement at the fourth conference were so generically known, and that Her Majesty's Commissioners, to say the least, ought to have known it. The claim must also grow out of the acts of the cruisers. That is a fact which the United States will be held bound to establish in these proceedings to the satisfaction of the Arbitrators.

(t) The United States, without suspicion that this palpable sense of the Treaty would be called into question, prepared and pre

The Americau

sented their Case to the Tribunal in December, on that Case stated the theory.

claims in the language of the joint high commissioners.

After stating in that document in detail the principal reasons which induced them to think that Great Britain is justly liable to them for the injuries growing out of the acts of the cruisers, they presented the statement of those injuries in the precise language and form in which their Commissioners had stated them to the British high Commissioners, introducing nothing new, and varying in no respect from what had already been introduced and agreed upon.

They offered evidence which might enable the Arbitrators to determine the amount of the injuries which they had suffered by reason of the loss and capture of the vessels and cargoes belonging to their citizens, or by reason of the increase in the rates of insurance, or by reason of the expense to which they had been put in the pursuit and capture of the vessels.

As to the transfer of their commercial marine to the British flag, they offered no evidence; but they said that they "asked the Tribunal to estimate the amount which ought to be paid to them" for that transfer. Neither did they offer evidence of the damages to them from the prolongation of the war. They said "it is impossible for the United States to determine; it is, perhaps, impossible for any one to estimate with accuracy the vast injury which these cruisers caused in prolonging the war." They

contented themselves, therefore, with stating reasons why (should the Tribunal hold that Great Britain is liable to make compensation to them for this class of injuries) the month of July, 1863, should be taken to be the time from which the war was prolonged by the acts of the cruisers; and they added that the Tribunal would be thus "able to determine whether Great Britain ought not, in equity, to reimburse to the United States the expenses thereby entailed upon them."

Long delay in ob

(u) Fifty days after Her Majesty's Government was made acquainted with the interpretation of the Treaty set forth in the Amerijecting to it by can Case, it took exception, and averred that it had not exGreat Britain. pected to find claims preferred against it for increased rates of insurance, for the transfer of the commercial marine, and for the prolongation of the war.

The United States had no intelligence before the 3d of February of this construction of the Treaty by Her Majesty's Government. They think it fair to argue that a long silence on so vital a question as the extent of this submission implies some doubt in the mind of the parties remaining silent as to the justice of their conclusions. In a similar case between private parties, it might well be assumed that so long a delay in communicating the views of a party situated as Her Majesty's Government was, after full knowledge of the views of the other party, would be deemed to be a waiver of the right to object.

(v) It has been said that the Treaty of Washington involved several concessions on the part of Great Britain, which were the Supposed price paid for the abandonment of the national claims of the United States.

Supposed concess.

ions to the United

States in the treaty.

1. It has

The rules.

been assumed that the declaration of certain principles to govern the Tribunal was a concession to the United States. But, unfortunately for this theory, it is stated in the British Case that these principles are "in substantial accord with the principles" of the general system of international law; and further, Lord Ripon, the chief of the British High Commissioners, has said that "Great Britain accomplished a signal benefit in binding the American Government by rules" from which "no country on the face of the earth is likely to derive so much benefit as England.”

Expression of re

gret.

2. It is said that the expression of regret for the escape of the cruisers. was a concession; but it cannot be supposed that in the friendly expression of regret for the escape of the cruisers Her Majesty's Government bargained for the withdrawal of claims which they regarded as dangerous to them.

Fenians.

3. Acquiescence in the refusal to consider the Fenian claims in the Joint High Commission has been put forward as another concession. But the evidence shows that this class of claims was not embraced in the correspondence on which the Joint High Commission was founded, and therefore could not be considered, although in presenting it Her Majesty's Government recognized the propriety of presenting claims for national as distinguished from claims for private injuries.

In fact, Fenian claims for national injuries were presented by the British Commissioners. They are thus defined in the instructions to the British Joint High Commissioners:

In connection with the claims of British subjects, there is a claim on the part of the dominion of Canada for losses in life and property, and expenditures occasioned by the filibustering raids on the Canadian frontier, carried on from the territory of the United States in the years 1868 and 1870.1

1 Brit. App., vol. iv.