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When Lord Cairns heard this statement he said, this is " a Treaty 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 hare 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 presented their Case to the Tribunal in December, on that case stated the theory.
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 anyone to estimate with accuracy the vast injury which these cruisers caused in prolonging the war.” They
language of the joint high commissioners,
Long delay ob
States in treaty.
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.” (u) Fifty days after Her Majesty's Government was made acquainted
with the interpretation of the Treaty set forth in the Ameribertinetu by can Case, it took exception, and averred that it had not ex
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 bad 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. (1) It has been said that the Treaty of Washington involved several
concessions on the part of Great Britain, which were the icons to the United supposed price paid for the abandonment of the national
claims of the United States. 1. It has 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 de. rive so much benefit as England.” 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. 3. Acquiescence in the refusal to consider the Fenian claims in the
Joint High Commission has been put forward as another con
cession. 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
i Brit. App., vol. iv.
Expression of re. gret.
The presentation of these claims to the Joint High Commissioners of the United States is recorded in the following words in the protocol :
At the conference on the 4th of March, the British Commissioners proposed that the Joint High Commission should consider the claims for injuries which the people of Canada had suffered from what were known as the Fenian raids.
At the conference on the 26th of April, the British Commissioners again brought before the Joint High Commission the claims of the people of Canada for injuries suffered from the Fenian raids. They said they were instructed to present these claims, and to state that they were regarded by Her Majesty Government as coming within the class of subjects indicated by Sir Edward Thornton in his letter of January 26th as subjects for the consideration of the Joint High Commission."
The American Commissioners replied that they were instructed to say that the Government of the United States did not regard these claims as coming within the class of subjects indicated in that letter as subjects for the consideration of the Joint High Commission, and that they were without any authority from their Government to consider them. They therefore declined to do so.
At the conference on the 3d May, the British Commissioners stated that they were instructed by their Government to express their regret that the American Commissioners were without authority to deal with the question of the Fenian raids, and they inquired whether that was still the case.
The American Commissioners replied that they could see no reason to vary the reply formerly given to this proposal.
The British High Commissioners said that, under these circumstances, they would not urge further that the settlement of these claims should be included in the present treaty. Aud that they had the less difficulty in doing this as a portion of the claims were of a constructive and inferential character.
No argument, therefore, can be drawn from any supposed concessions by Great Britain, to justify thi.t power in denying the jurisdiction of this Tribunal over the national claims which were presented, and persisted in, by the United States. Nor can it be assumed that Her Majesty's Government objected on principle to a class of claims which, in a parallel case, Commissioners were presenting and urging upon the United States.
(w) Whatever doubt, if any, may ever have existed, or have been set up on the part of Great Britain, as to the true tenor of the written Treaty, no such doubt can reasonably exist at the present time.
While Mr. Gladstone, in the House of Commons, was asserting in such positive terms that the so-called indirect claims are excluded by the unequivocal and positive language of the Treaty, and denying that the Treaty could possibly receive any other construction, Lord Derby, in the other house, admitted that the Treaty was susceptible of the construction placed upon it by the United States ; and in a later debate both Lord Derby and Lord Cairns in unequivocal language supported the same views.
All delusion on that point is now dispelled. No statesman in Great Britain would probably now make the assertion made by Mr. Gladstone, in February, in the House of Commons.
The Treaty speaks for itself. It is universally conceded that its natural construction is that put upon it in the American Case. Discussion of the subject has advanced so far at least towards dispelling misapprehension.
(3) Neither the hypothesis of Mr. Bernard, nor that of Sir Stafford Northcote, is produced in the celebrated debate in the House of Lords, which has already been alluded to, and which has been adduced by the
1 Sir Edward Thornton, in his note of the 25th of January, proposed a settlement of the questions with reference to the fisheries on the coast of Her Majesty's possessions in North America, and as to any other questions between them which affect the relations of the United States towards those possessions."
British Government as notice to the United States, because of the alleged presence of Mr. Schenck, the American Minister. In the first place, the expressions of Lord Granville on that occa
sion did but very obscurely refer to the question of the
so-called indirect claims. He said : The noble Earl said that the United States has made no concessions ; but in the very beginning of the protocols, Mr. Fish, renewing the proposition he had made before to mich larger national claims, said :
“ The history of the Alabama and other cruisers which had been fitted out, or armed, or equipped, or which has received angmentation of force in Great Britain or in her colonies, and of the operations of those vessels, showed extensive direct losses in the capture and destruction of a large number of vessels with their cargoes, and in the heavy national expendituresi n the pursuit of the cruisers; and indirect injury in the transfer of a large part of the American commercial marine to the British flag, in the enhanced payments of insurance, in the prolongation of the war, and in the addition of a large sun to the cost of the war and the suppression of the Rebellion; and also showed that Great Britain, by reason of failure in the proper observance of her duties as a neutral, had become justly liable for the acts of those cruisers and of their tenders; that the claims for the loss and destruction of private property which had thus far been presented amounted to about $14,000,000 without interest; which amount was liable to be greatly increased by claims which had not been presented.” 1
These were pretensions which might have been carried out under the former Arbitration; but they entirely disappear under the limited reference which includes merely complaints arising out of the escape of the Alabama.
Now there are some things quite remarkable in this part of Lord Granville's speech-the only part which refers to the subject.
In citing the statement made by the American Commissioners, (not Mr. Fish,) which appears in the protocol of May 4, 1871, he stops at the word “presented,” noted with a period, as if it were the conclusion of the statement of the American Commissioners; while in the text there is a semicolon after the word “presented ;” and the sentence concludes with the following words:
That the cost to which the Government had been put in the pursuit of the cruisers could easily be ascertained by certiticates of Government accounting ofticers; that in the hope of an amicable settlement, no estimate was made of the indirect losses, withiout prejudice, however, to the right to indemnification on their account in the event of no such settlement being made.
Now the concluding words of the sentence, thus omitted by Lord Granville, contradict the intention which is ascribed to the American Commissioners, and thus annihilate the foundation for the subsequent remarks that these "pretensions entirely disappear under the limited reference which includes mere complaints arising out of the escape of the Alabama."
Lord Granville does not say, with Mr. Bernard, that the supposed limitation of the reference consists of inaccurate language, purposely used in the spirit of diplomacy; nor does he say, with Sir Stafford Northcote, that the limitation is to be found in some unrecorded understand. ing of Commissioners; but he assumes to find the limitation in the express words of the Treaty.
This is done by assuming that the Treaty itself “includes merely complaints arising out of the escape of the Alabama." This assumption is entirely unfounded; for the Treaty submits "all the said claims, growing out of acts committed by the aforesaid vessels, and generically known as the Alabama claims; which is a very different thing from the recital in Lord Granville's speech.
Indeed, taking that speech as a whole, it is by no means clear that Lord Granville intended to set up any other limitation in the Treaty than such as would exclude claims on account of premature recognition of the i Parl. Paper, No. 3, (1871,) p. 8.
2 Hansard, vol. ccvi, p. 1851.
Explanation of the
belligerence of the Confederates by Great Britian. This hypothesis would explain his reference to claims connected with the cruisers.
We have sufficiently demonstrated, we think, that neither this phrase, nor any other contained in the Treaty, justifies the construction put upon it by Lord Granville.
In comparing what was said in this debate in the House of Lords by Lord Granville and Lord Cairns, with what is said by Sir Stafford Northcote in his speech, and Mr. Bernard, in his misunderstanding. lecture, we think we see the explanation of all misconceptions respecting the scope of the treaty prevailing in Great Britain.
The Johnson-Clarendon Treaty did not esclude from consideration, at least by words of express exclusion, claims of the United States on account of the premature recognition by Great Britain of the insurgents. Undue generality of language was imputed to that Treaty by members of either house of Parliament. When the Treaty of Washington came under discussion in Parliament, Lord Granville said, and said truly, that in this respect the Treaty of Washington had advantages over the Johnson-Clarendon Treaty. The former did not, like the latter, comprehend the belligerency question as a ground of claim. Lord Granville proved this by reference to the protocols and also to the Treaty, which in terms confines the American reclamation to losses growing out of the acts of cruisers of the Confederates designated by the typical name of the Alabama.
Mr. Bernard spoke in the same sense when he said in the remarks already quoted that the claims submitted were specific, (which is true,) as they are only the class of claims which grew out of the acts of the cruisers.
When Sir Stafford Northcote speaks of an “understanding” or a “promise" in limitation of the American claims, he confounds the two to. tally distinct questions of claim on account of the Queen's Proclamation and the national injuries occasioned by it, and the claims on account of the insurgent cruisers and the national injuries occasioned by their acts. It was understood, and it is understood, that the former class of injuries are not comprised in the Treaty, but are in effect excluded by the express language of the Treaty, which confines reclamation to acts of the Confederate cruisers. It was understood, and it is understood, that the claims of the United States under the Treaty are co-extensive with losses growing out of the acts of the Confederate cruisers without limitation, because such is the express stipulation of the Treaty. Sir Stafford Northcote's memory is at fault in suggesting that any understanding existed, or that any promise was ever made to prevent the United States from presenting claims for national injuries in this behalf. These, and the claims of private persons, are two classes of claims which had been previously presented by the American Goverument, and had been insisted on by it, in all the correspondence and acts associated with the Treaty of Washington.
(y) We think the Arbitrators must conclude that Her Majesty's Government is in error in assuming that this august Tribunal is excluded from the consideration of any class of claims brought before it by the Case of the United States. The previous negotiations of the parties, the history of the cliams, the explicit declarations of the American negotiators in the conferences of the Joint lligh Commission, the proceedings in both Houses of Parliament, the long delay of the British government in acting upon the American Case after they knew its contents, the natural and only reasonable construction of the language of the Treaty itself-all strengthen this belief.