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The rules of the
The provisions of
plenipotentiaries to 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 depredations committed by these vessels."
Upon these premises thus recited, and "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 operative arrangement to that end proceeds in the definite statement that “the high contracting parties agree that all the said claims growing out of acts committed by the aforesaid vessels and generically known as the 'Alabama claims,' shall be referred to a tribunal of arbitration,” which this article of the treaty then proceeds to constitute.
II. The sixth article of the treaty imposes certain rules or principles, as the law, accepted by the concurrence of the high contracting parties, according to which the actual treaty. matters in difference between them are to be adjudicated by the tribunal; and, accordingly, it is provided that, “in deciding the matters submitted to the arbitrators, they shall be governed by the following three rules, which are agreed upon by the high contracting parties as rules to be 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."
The article then proceeds to give the text of the rules, which it is not necessary here to repeat.
The only further instruction in regard to the disposition of the matters submitted to arbitration, under the rules prescribed for their determination, is to be found in the seventh article of Article VII. the treaty, in its provision that “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 principles of international law not inconsistent with such rules, and shall certify such fact as to each of the said vessels."
Upon this principal determination by the tribunal, it is also provided, in Article VII, that, "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 the tenth article, that, “ 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 ap. pointed to ascertain and determine what claims are valjd, and what amount or amounts shall be paid by Great Britain to the United States 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."
The effect of the award that shall be made by the arbitrators under the authority conferred upon them by the treaty, is given by the ninth article, which provides that the high contracting parties engage to consider the result of the proceedings of the tribunal of arbitration and of the board of assessors, should such board be appointed, as a full, perfect, and final settlement of all the claims hereinbefore referred to; and further engage that every such claim, whether the same 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 con
Effect of an award.
sidered and treated as finally settled, barred, and henceforth inadmissible."
From these arrangements of the treaty, it is apparent: (1.) That the high contracting parties have found, (in the public act of the The measure of in government of Great Britain, expressing the regret of that
government for certain occurrences in the past, and in the joint public act of the two governments, by which they agree to observe, “as between themselves in future,” the rules established as the law of this arbitration, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them,”) the means of reducing the measure of the complaint and demand for indemnity, insisted upon by the United States, and contested by Great Britain, before this tribunal, to all the claims of the United States “growing out of acts committed by” the described “vessels and generically known as the 'Alabama claims.?" (2.) That these claims are all preferred by the United States as a na
tion against Great Britain as a nation, and are to be so com
puted and paid, whether awarded as 66 a sum in gross, under the seventh article of the treaty, or awarded for assessment of amounts, under the tenth article. (3.) That the authority of the tribunal is absolute and final between
the two nations, and comprehensive of all the claims falling the tribunal absolute within the terms of the submission, “whether the same may
or may not have been presented to the notice of, made, pre. ferred, or laid before the tribunal or board of assessors." (4.) That by force of this treaty, and the execution of the jurisdic
tion it confers upon tbis tribunal of arbitration, the contro
versy between the two nations, arising upon the conduct of Great Britain during the late rebellion in the United States, will find its final solution in the award of the arbitrators, and will be forever removed as an occasion of estrangement or disturbance of peace.
The claims preJerred are national.
The authority of
Its a ward will be final.
III.-GENERAL DISCUSSION OF QUESTIONS OF LAW.
to maintain neutrality.
We arrive, now, in sequence of the foregoing exposition of the origin, history, and nature of the pending controversy between the United States and Great Britain, to statement of the reclamations of the American Government against the British, comprised in the Treaty of Washington, and explanation of the grounds of public law on which those reclamations are founded, and in view of which the United States ask the judgment of this High Tribunal.
The principle of these reclamations is fully set forth in the Case and Counter Case submitted by the United States.
But a summary restatement thereof is necessary here in order to give completeness to the present Argument, so that it shall constitute a connected and logical résumé of the whole controversy between the two Governments.
I. The United States maintain, as matter of fact, that the British Government was guilty of want of due diligence, that is, of culpable negligence, in permitting, or in not preventing, the United States in re construction, equipment, manning, or arming, of confederate Great Britaine men-of-war or cruisers, in the ports of Great Britain or of the British colonies; that such acts of commission or omission, on the part of the British Government, constituted violation of the international obligations of Great Britain toward the United States, whether she be regarded in the light of the treaty friend of the United States, while the latter were engaged in the suppression of domestic rebellion, or whether in the light of a neutral in relation to two belligerents; that such absence of due diligence on the part of the British Government led to acts of commission or omission, injurious to the United States, on the part of subordinates, as well as of the ministers themselves; and that thus and therefore Great Britain became responsible to the United States for injuries done to them by the operation of such cruisers of the Confederates. That is to say, to adopt in substance the language of the treaty of Washington, the United States maintain as fact
First, that the British Government did not use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction of every vessel which it had reasonable ground to believe was intended to cruise or carry on war against the United States, and also did not use like diligence to prevent the departure from its jurisdiction of every 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, that the British Government did permit or suffer the Confederates to make use of its ports or waters as the base of naval operations against the United States, or for the renewal or augmentation of military supplies or arms, or the recruitment of men, for the purpose of war against the United States.
Thirdly, that the British Government did not exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of its aforesaid obligations and duties as respects the United States.
Scope of the sub1810n.
of the cruisers.”
II. The United States further maintain that, it appearing as fact
tbat Great Britain did fail to fulfill all her duties as aforeResponsibility re sults from sucha said toward the United States, (Article VII,) thereupon and
thereby, in virtue of the Treaty of Washington, and of the express compacts therein contained, Great Britain is bound by reason of her liability arising from such failure (Article X) to pay to the United States a sum, in gross or on assessment, for all the reclamations referred to this Tribunal, or such amount or amounts on account of said liability according to the extent thereof as decided by the Tribunal. III. The United States find, on inspection of the Treaty of Washing
ton, that Great Britain has submitted to this Tribunal “ all
the said claims” of the United States “ growing out of the acts” of the confederate cruisers aforesaid, (Article I,) without limitation, qualification, or restriction; and that, in pursuance of such general submission, this Tribunal is to examine and decide, by the express compact of the treats, " all questions” which shall be laid before it on the part of the Government of the United States, as well as that of Great Britain. (Article II.) IV. The United States further tind as fact on inspection of the nego
tiations which preceded the treaty of Washington, that the Meaning of thealing Secretary of State of the United States declared that the krowing one of the American Government, in rejecting a previous convention,
" abandons neither its own claims, nor those of its citizens ;'>1 that the claims thus referred to were specifically set forth in a 'subsequent dispatch of the same minister, as follows:
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 destruction of their property by rebel cruisers fitted out in the ports of Great Britain.
Nor is he now prepared to speak of the reparation which he thinks due by the British Government for the larger account 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 untimely recognition of belligerency, by suffering the fitting out of rebel cruisers, or by the supply of ships, arms, and munitions of war to the Confederates, or otherwise, in whatever manner.2
V. The United States farther find as fact that the President, in his annual message to Congress immediately precediug the conclusion of the Treaty of Washington, and which indeed constituted the inducement thereto, spoke as follows:
I regret to say that no conclusion has been reached for the adjustment of the claims against Great Britain, growing out of the course adopted by that Government during the rebellion. The cabinet of London, so far as its views have been expressed, does not appear to be willing to concede that Her Majesty's Government was guilty of any negligence, or did or permitted any act during the war by which the United States has just cause of complaint. Our firm and unalterable convictions are directly the reverse. I therefore recommend to Congress to authorize the appointment of a commission to take proof of the amounts and the ownership of these several claims on notice to the representative of Her Majesty at Washington, and that authority be given for the settlement of these claims by the United States, so that the Government shall have the ownership of the private claims, as well as the responsible control of all the demands against Great Britain. It cannot be necessary to add that, whenever Her Majesty's Government shall entertain a desire for a full and friendly adjustment of these claims, the United States will enter upon their consideration with an earnest desire for a conclusion consistent with the honor and dignity of both nations.3
1 Mr. Fish to Mr. Motley, May 15, 1869. Documents annexed to Case of the United States, vol. vi, p. 1.
% Mr. Fish to Mr. Motley, September 25, 1869, Documents as above, vol. vi, p. 13. (See the commentary on these national or (so called) indirect damages by Mr. Abbott, in Lord Clarendon's dispatch, in Appendix to the British Case, N. A., No. 1, 1870, p. 19.)
3 Papers relating to foreign relations of the United States, December 5, 1870, p. 9.
Contentions of Great Britain.
Proposed course of
VI. We, the counsel of the United States, insist, therefore, that such, n their magnitude, nature, and scope, are the claims submitted to the Tribunal by the express tenor, the spirit as well as the language, of the treaty of Washington, as particularly set forth in the Case and Counter Case of the United States.
To these reclamations the British Government, in its Case and Counter Case, responds :
First, taking issue with the United States on the question of imputed negligence, or disregard, in other respects, of the rules of public law laid down in the treaty of Washington.
Secondly, alleging as legal theory, that, in the incidents brought under review, the British Government acted in conformity with, and in obedience to, the provisions of a certain act of Parliament, commonly known as the foreign-enlistment act, and that, by the law of nations, or the public law of Great Britain, the obligations of the British government toward the United States are to be measured in execution by that act of Parliament.
Thirdly, the British Government, in justification or extenuation of its own imputed delinquencies in the premises, adduces certain incidental considerations, derived from the history and jurisprudence of sundry foreign governments, including the Government of the United States.
VI. As to the first of these points, the counsel of the United States propose to exhibit to the Tribunal a complete and authentic analysis of the great body of pertinent proofs contained in argument. the documents annexed by the two governments to their respective Cases and Counter Cases; and to argue thereon that such documents conclusively establish the main fact of the violation by the British Government of the rules of duty stipulated by the treaty of Washington.
VII. As to the second and third of said points, the counsel of the United States will in the sequel submit considerations which, as they conceive, conclusively establish the legal rights of the United States in the premises, notwithstanding such defensive arguments as are adduced by the British Government.
VIII. Preparatory to which, we submit to the wisdom of the Tribunal the following general considerations of law applicable to the defense set up by the British Government.
1. We maintain, and undertake to prove, that, even if the provisions of the foreign-enlistment act were the measure and limit of the international duties of the British Government in the spot culpable needin premises, still, on the facts, there was culpable negligence by the foreign-enliston the part of Great Britain. The British Government did not do, by way of prevention, or repression, or punishment, all which that act permitted and required.
2. But the international duties of Great Britain are wholly independent of her own municipal law, and the provisions of the above-cited act of Parliament do not rise to the height of ties independent of the requirements, either of the law of nations or of the rules of the Treaty of Washington. That act makes no adequate provision, either of prevention or punishment; and it contains no provision whatever of executive prevention, without which no government can discharge its international obligations, or preserve its own international peace.
3. If, as a question of local administration, that act was deficient in powers, it was the international duty of Great Britain, as a government, to pass a new act conferring on its ministers enlistment act. the requisite powers.
General considerations of law.
Great Britain guil
Defects of foreign