by a denial of any liability for any injuries growing out of the acts of the Alabama.1 United States refuse 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 relintheir claims. quish 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 Reasons for calling 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. 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, United States renew On the 7th of April, 1865, the war being virtually over, Mr. Adams renewed the discussion. He transmitted to Earl Russell an official report showing the number and tonnage of Ameridiscussion. can 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 Responsibility of supplied from the ports of Her Majesty's Kingdom all the materials, such as vessels, armament, supplies, and men, indispensable to the effective prosecution of this result on the ocean." He asserted that "Great Britain, as a national Power, was fast acquiring the entire maritime commerce of the United States by reason of the acts of a portion of Her Majesty's subjects, engaged in carrying on war against them on the ocean during a time of peace between the two countries ;" and he stated that he was "under the painful necessity of announcing that his Government cannot avoid entailing upon the Govern- Great Britain re-asment of Great Britain the responsibility for this damage." 1 Lord Russell evidently regarded this as an unequivocal a determination to hold Great Britain responsible for at least a portion of the national injuries growing out of the acts of the cruisers. He said, in reply, "I can never admit that the duties of Great Britain toward the United States are to be measured by the losses which the trade and commerce of the United States have sustained." 2 serted. statement of Denial of liability ify claims as "di rect," and demand Mr. Adams, in his reply on the 20th of May, repeated the demand. He referred to the destruction of individual vessels and car- May, 1865, the goes, and said that, "in addition to this direct injury, the United States classaction of these British built, manned, and armed vessels rect" and "indihas had the indirect effect of driving from the sea a large reparation for all. portion of the commercial marine of the United States, and to a corresponding extent enlarging that of Great Britain." He declared that "the very fact of the admitted rise in the rate of insurance on American ships only brings us once more back to look at the original cause of the trouble;" and he again said, that "the injuries thus received are of so grave a nature as in reason and justice to constitute a valid claim for reparation and indemnification." 3 It will be observed that the attention of Her Majesty's Government is thus called in terms to a distinction, which has since become the subject of some controversy, between what were styled "direct" and what were styled "indirect" injuries, and that it was made clear beyond a question that the United States intended to claim remuneration for all. Lord Russel so understood it, and said in reply: nies liability for indirect and refuses arclaims. Great Britain de bitration for direct It seems to Her Majesty's Government that, if the liability of neutral nations were stretched thus far, this pretention, new to the law of nations, would be most burdensome, and indeed most dangerous. A maritime Nation, whose people occupy themselves in constructing ships and caunon and arms, might be made responsible for the whole damages of a war in which that Nation had taken no part.4 Referring to the offer of arbitration, made on the 26th day of October, 1863, Lord Russell, in the same no te, said: Her Majesty's Government must decline either to make reparation and compensation for the captures made by the Alabama, or to refer the question to any foreign State.5 (c) This terminated the first stage of the negotiations between the two Governments. They commenced with the demand on the part of the United States for remuneration for national and for individual losses growing out of the acts of the Alabama, and a denial of the liability on the other side. This was followed up by similar demands for injuries growing out of the acts of other vessels, and by a proposal to submit the claims to arbitration. The negotiations were closed by the repudiation of any possible lia 1 Am. App., vol. i, p. 290; vol. iii, p. 522. 2 Ibid., vol. i, p. 526. 3 Am. App., vol. iii, p. 553. 4 Ibid., p. 361. 5 Ibid., p. 562. Lord Russell the bility of Great Britain for national injuries, as being a doctrine "most dangerous" to neutrals, and by the refusal to arbitrate the question of the captures of vessels and cargoes of individuals made by the Alabama. It will be observed that Lord Russell here uses the word "Alabama" in a generic sense. The note of Mr. Adams to which he was author of the term replying complained of "the burning and destroying on the "Alabama claims." ocean a large number of merchant-vessels and a very large amount of property belonging to the people of the United States by a number of British vessels." The Parliamentary paper from which this extract is cited is styled "Correspondence respecting the Shenandoah." Mr. Adams's note refers to the acts of the Shenandoah, the Florida, and the Alabama.3 Lord Russell's note also refers to the Óreto1 and the Shenandoah. It is evident therefore that when he denies liability and refuses the arbitration as to the acts of the Alabama, he uses the word "Alabama" in a generic sense. This term well 1866. 5 The conclusion is irresistible either that the Alabama then stood as the generic representative of all the vessels, or, on the other hand, that Lord Russell first endowed the word Alabama with a generic sense. (d) The evidence before the Tribunal does not show the use of the exact expression "Alabama claims" before October 4, 1866. known in October, It then appeared in a leader in the London Times, in the course of which, after referring to the "so-called Alabama claims," it is said: "The loss occasioned by American commerce in consequence may be damnum sine injuria, and therefore no ground of a legal action, and yet it may be a wise act of courtesy to waive the benefit of this plea." It follows from this, that at that early day the phrase "Alabama claims" had become so well known as to be styled "so-called." Lord Russell pro Great Britain having thus possessed herself of a large part of the American commercial marine, through the acts of the poses to let by-gones cruisers dispatched from her ports to carry on war against bc by-gones. the United States, and having refused not only to make indemnity therefor, but also to submit the question of her liability to arbitration, Lord Russell next proposed, with what makes approach at least to audacity, "the appointment of a commission to which shall be referred all claims arising during the late civil war, which the two Powers shall agree to refer," excluding of course the Alabama claims; in other words, that the extravagant claims of British subjects upon the United States should be recognized, while the grave injuries to the United States and their citizens should be ignored. Great Britain also proposed to guard against a possible retransfer of the commercial marine to the United States under the same circumstances, when England should be a belligerent and the United States should be neutral, by letting "by-gones be by-gones," "forgetting the past," and, "as each had become aware of defects that existed in international law," "attempting the improvements in that code which had been proved to be necessary.' Mr. Seward in reply said: United States [de their claims. There is not one member of this Government, and, so far as I know, not one citizen of the United States, who expects that this country will waive, in any cline to waive any of case, the demands that we have heretofore made upon the British Government for redress of wrongs committed in violation of international law. I think that the country would be equally unanimous in declining every form of negotiation that should have in view merely prospective regulations of national intercourse, so long as the justice of our existing claims for indemnity is denied by Her 1 Brit. App., vol. iv, paper v, p. 10. 2 Ibid., p. 11. 3 Ibid., p. 12. 4 * Ibid., p. 22. 5 Ibid., p. 3. 6 Lord Clarendon to Sir F. Bruce, Brit. App., vol. iv, paper 5, p. 164. Majesty's Government, and these claims are refused to be made the subject of friendly but impartial examination." 1 The Stanley-Johnson convention. (e) In the summer of 1866 a change of Ministry took place in England, and Lord Stanley became Secretary of State for Foreign Affairs in the place of Lord Clarendon. He took an early opportunity to give an intimation in the House of Commons that should the rejected claims be revived, the new Cabinet was not prepared to say what answer might be given them; in other words, that, should an opportunity be offered, Lord Russell's refusal might possibly be reconsidered. Mr. Seward met these overtures by instructing Mr. Adams, on the 27th of August, 1866, "to call Lord Stanley's attention, in a respectful but earnest manner," to "a summary of claims of citizens of the United States, for damages which were suffered by them during the period of the civil war," and to say that the Government of the United States, "while it thus insists upon these particular claims, is neither desirous nor willing to assume an attitude unkind and unconciliatory toward Great Britain." He also said that he thought that Her Majesty's Government could not reasonably object to acknowledge the claims.2 Lord Stanley met this overture by a communication to Sir Frederick Bruce, in which he denied the liability of Great Britain, and assented to a reference, "provided that a fitting Arbitrator can be found, and that an agreement can be come to as to the points to which the arbitration shall apply.3 A long negotiation ensued. In the course of it Mr. Seward wrote to Mr. Adams thus, on the 22d of May, 1867: As the case now stands, the injuries by which the United States are aggrieved are not chiefly the actual losses sustained in the several depredations, but the first unfriendly or wrongful proceeding of which they are but the consequences. (f) These negotiations were conducted in London, partly by Lord Stanley and partly by Lord Clarendon, on the British side, and partly by Mr. Adams and partly by Mr. Reverdy Johnson, on the American side. In Washington Mr. Seward remained the Secretary of State. Great Britain was there represented, first by Sir Frederick Bruce, and afterward by Sir Edward Thornton. (g) As the first result of these negotiations, a convention known as the Stanley-Johnson convention was signed at London on the 10th of November, 1868. It proved to be unacceptable to the Government of the United States. Negotiations were at once resumed, and resulted on the 14th of January, 1869, in the Treaty known as the John- The Johnson-Clarson-Clarendon convention. endon convention. (h) This latter convention provided for the organization of a mixed commission with jurisdiction over "all claims on the part of citizens of the United States upon the Government of Her Britannic Majesty, including the so-called Alabama claims, and all claims on the part of subjects of Her Britannic Majesty upon the Government of the United States which may have been presented to either Government for its interposition with the other since the 26th July, 1853, and which yet remain unsettled." 4 Lord Ganville Lord Granville subsequently said, in the House of Lords, of these two conventions, "the former convention provided (Article IV) that the Commissioners shall have the power to adjudicate thinks it admits unupon the class of claims referred to in the official corre- to the extent of Alaspondence between the two Governments as the Alabama bama claims. 1 Mr. Seward to Mr. Adams, Feb. 14, 1866, vol. iii, Am. App., p. 628. Ibid., p. 652. 2 Am. App., vol. iii, pp. 632-636. 4 Am. App. vol. iii, pp. 752, 753. claims. The latter (Article I) provided that all claims on the part of subjects of Her Britannic Majesty upon the Government of the United States, and all claims on the part of the citizens of the United States upon the Government of Her Britannic Majesty, including the so-called Alabama claims, shall be referred to commissioners, &c. Both conventions purposely avoided defining what constituted the Alabama claims, and admitted almost unlimited argument as to what the Alabama claims were. Both conventions were also open to the objection (at that time unavoidable) that there was no check on the award of the final Arbitrator, who might have given damages to any amount." 99 1 It is clear, therefore, that up to the conclusion of the JohnsonClarendon treaty in January, 1869, there was no doubt in England that the term "Alabama claims" was understood as including the claims for the national injuries. The convention not United States. (i) It was supposed in America that it was not stated in sufficiently unequivocal terms in the Johnson-Clarendon Treaty that the acceptable to the national claims should be considered by the Arbitrators; and there were many signs that the Treaty, in consequence of that belief, would not receive the assent of the Senate. Mr. Reverdy Johnson, hearing of this, wrote an elaborate defense of himself, which has been seized upon by Her Majesty's Government as proof that the United States had at no time claimed to receive indemnity for the national injuries which they have suffered. But the foregoing résumé of correspondence between the two Governments shows that, if Mr. Johnson made such a statement, he did it under a misapprehension. The error was never communicated to Her Majesty's Governforms Lord Claren; ment. On the contrary, only a few days later he wrote to States have claims of Lord Clarendon in exactly the opposite sense. He said, referring to a claims convention between the two Governments in 1853, "At that time neither Government, as such, made a demand upon the other; but that, as my proposition assumes, is not the case now. The Government of the United States believes that it has in its own right a claim upon the Government of Great Britain."2 Mr. Johnson in don that the United their own on Great Britain (j) Her Majesty's Government also received the same intelligence about that time from other sources. advises Its Minister at Washington, on the 2d of February, 1869, communicated to it the action of the Senate Committee on Foreign Relations. "Mr. Sumner," he said, "brought forward the above-mentioned convention, and after making a short comment upon its contents, and stating that it covered none of the principles for which the United States had always contended, recommended that the committee should advise the Senate to refuse their sanction to its ratification. Mr. Sumner was authorized to report in that sense to the Senate."3 On the 19th of Sir Edward Thorn April Mr. Thornton also advised Lord Clarendon of the reClarendon that the jection of the Treaty. "Your Lordship perceives," he said, convention is reject that the sum of Mr. Sumner's assertion is that England thought that it does * * * is responsible for the property destroyed by the Alabama and other Confederate cruisers, and even for the remote damage to American shipping interests, including the increase in the rate of insurance; that the Confederates were so much assisted by being able to get arms and ammunition from England, and so much encouraged by the Queen's Proclamation, that the war lasted much longer than it would otherwise have done, and that we ought therefore to pay imaginary additional expenses imposed upon the United States by the prolongation of the war."4 ed because it is not include the indirect claims. 1 Hansard, ubi supra. 2 Am. App., vol. iii, p. 780. 3 Ibid., p. 772. |