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 suggestion 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

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

Meaning of "ami

The preamble of this instrument recites that "the United States of America and Her Britannic Majesty, being desirous to cable settlement " 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."

The same which

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

preliminary correspondence.

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 clains.

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 assess 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

Views of Mr. Bernard.

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 1 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.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. 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 not questioned

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 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 Majes ty'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.