Imágenes de página

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. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

Thirdly. To exercise due diligence in its own ports or waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties. Her Britannic Majesty has commanded her High Commissioners and Plenipotentiaries

to declare that Her Majesty's Government cannot consent to the foregoing rules [2] as a statement of * principles of international law which were in force at the

time when the claims mentioned in Article I arose, but that Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries and of making satisfactory provision for the future, agrees, that in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these rules. And the High Contracting Parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime Powers, and to invite them to accede to them.

ARTICLE VII. The decision of the Tribunal shall, if possible, be made within three months from the close of the argument on both sides. It shall be made in writing, and dated, and shall be signed by the Arbitrators who may assent to it. The said Tribunal shall first determine as to each vessel separately whether Great Britaiu 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 interuational law not inconsistent with such rules, and shall certify such fact as to each of the said vessels. In case the Tri. bunal 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 such case the gross sum so awarded shall be paid in coin by the Government of Great Britain to the Government of the United States at Washington within twelve months after the date of the award.

[blocks in formation]
[ocr errors]

ARTICLE X. 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 appointed to ascertain and determine what claims are valid, and what annount 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.

ARTICLE XI. 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 Tribnnal or Board, shall, from and after the conclusion of the proceedings of the Tribunal or Board, be considered and treated as finally settled, barred, and thenceforth inadmissible.

The second of the above "Rules” is understood by Her Majesty's government as prohibiting the use of the ports or waters of the neutral for the renewal or augmentation of military supplies or arms, only when such supplies or arms are for the service of a vessel cruising or carrying on war, or intended to cruise or carry on war, against either bellig. erent; and as not prohibiting any sale of arms or other military supplies in the ordinary course of commerce; and Her Majesty's government have no reason to believe that it is otherwise understood by the Government of the United States.

The claims, then, which are referred to the tribunal are “claims growing out of the acts of " certain vessels, in respect of which the Government of the United States alleges that Great Britain has failed to fulfill some international duty. The duties specifically mentioned, and to which the attention of the tribunal is directed, are duties to be performed by a “neutral government” as such. As to each vessel separately, the tribunal is to determine whether there has or has not been any failure of duty on the part of Her Majesty's government. If, in the judgment of the tribunal, there las been such a failure in respect of any specified vessel or vessels, the tribunal may adiopt, at its discretion, either of two courses. It may, on the one hand, a ward such a gross sum as the arbitrators may deem just to be paid by Great Britain, in full satisfaction of all well-founded claims on the part of the United States, “growing out of the acts” of the vessel or vessels in respect of which there has been a fai re of duty; or, on the other hand, it may content itself with (leciding, as to each or any vessel in respect of which there has been a failure of duty, the measure or extent of the liability which on general principles may justly be deemed to have been incurred by such failure. In the event of the second course being chosen, the office of examining and adjudicating on the validity of particular claims growing out of the acts” of the specified vessel or vessels, and of fixing the sum or sums of money to be paid on account of eacli

, according to the measure of liability laid down by the tribunal, is remitted to a board of assessors, for constituting which provision is made by Article X.

In effect, therefore, the tribunal is called upon to determine whether, in respect of certain vessels not designated by name, the government of Great Britain, as a neutral power, has made default in the performance of any international obligation due from that power to the United States. Should this question be answered in the affirmative, the tribunal is then to form a judgment on the extent of the liability, if any, incurred by the default, and is either to award a gross sum in satisfaction of all just claims, or to define the general limits of the liability as to each vessel for the guidance of the assessors. The claims which may

be presented to the tribunal, and to which alone it is to have regari in making its awarı, are claims "growing out of the acts”

of the vessels (if any) in respect of which a failure of luty shall be proved.

The vessels to which this inquiry relates are (as has been already remarked) hot designated in the treaty by name; they are only indicated by reference to a particular class of claims, to which their "acts” are said to have given rise. These claims are assumed in the treaty to have become familiar to botlı governments, in the course of the correspondence which has passed between them, under the general title of the Alabama Claims." They are assumed to form a distinct class, well known, and pasily separable from the mass of miscellaneous claims arising from other sources, for which latter a different mode of settlement is provided by Articles XII to XVII of the treaty. The Alabama was a vessel which sailed from the port of Liverpool, under circunstances which will be stated below, and was afterward employed as a cruiser in the naral service of the Confederate States. The phrase " The Alabama claims" is understood by ller Britannic Majesty's government to embrace all claims growing” (to use the language of the treaty) "out of acts committed by” this vessel, and by other vessels which are alleged to have been procured, like the Alabama, from British ports during the war, and under circumstances more or less similar, and to be contined to such claims. The only vessels in respect of the acts of which claims have been made by the Government of the United States on that of Her Britannic Majesty, either during the civil war or in the six years which have elapsed since its termination, are the Alabama herself, and the vessels formerly known as the Florida, Georgia, and Shenandoali. On one occasion, indeed, since the close of the war, namely, in a dispatch dated 27th August, 1866, and communicated by the minister of the United States to lier Majesty's government, mention was made of a vessel called the Sumter, as one of those in respect of which the Government of the United States conceived itself to have claims against Great Britain. But no claims in respect to the Sumter were in fact included in the detailed list which was inclosed in that dis. patch and then presented to Her Britannic Majesty's government, nor have any such claims been presented before or since. Nor is Her Britannic Majesty's government aware of any grounds on which such claims could be made with any show of reason. Her Britannic Majesty's government is, therefore, entitled to assume that the claims referred to the tribunal are claims “growing out of the acts” of the four vessels above named, or of some or one of them.

The circumstances under which these four vessels respectively sailed from British ports, and came into the possession of the government of the Confederate States, and the considerations which the tribunal will be called upon to apply to them respectively, are, as will hereafter be seen, dissimilar in very material respects. Her Britannic Vajesty's government, however, maintains that in respect of none of them was there, on its part, any failure in the discharge of international obligations rendering Great Britain justly liable to make reparation to the United States for acts committed by them, or by the persons in whose possession they respectively were, out of the jurisdiction of the British Crown.

For the guidance of the tribunal in adjudicating on the questions submitted to it, three “rules” have been laid down, which, by agreement between the two governments, are to be taken as applicable to the case, and to be reciprocally observed in future by Great Britain and the United States. These rules purport to lay down certain specific obligations inciunbent in time of war on neutral powers. By them, and by such principles of international law not inconsistent with them as the tribunal shall determine to have been applicable to the case, the tribunal is to be governed. Her Britannic Majesty's government has de. clined to give its assent to these rules as a statement of principles of international law which were actually in force at the time when the claims now submitted to arbitration arose. But by Her Britannic Majesty's government, as well as that of the United States, they are believed and intended to be not at variance, but in substantial accord with the general principles of that system by which both powers alike hold themselves bound, which they alike desire to preserve sacred and inviolate. and from the dominion of which neither of them proposes to withdraw the questions that have unhappily arisen between them. Accepting the rules sincerely and without reserve, in the manner expressed in the sixth article of tbe treaty, Her Britannic Majesty's government will assume (as is, indeed, clearly implied in the terms of that article) that they are to be construed with reference to, and in connection with, that longestablished body of international rules and usages which was, and still is, common to Great Britain and the United States with other civilized peoples.

[blocks in formation]




Before approaching the cases of the vessels to which the claims in question are understood to relate, it is necessary to state concisely the previous course of events, and to place clearly dvietors statement. before the tribunal the course of conduct which had been pursued during the earlier period of the war by Her Britannic Majesty's government.


The following propositions are believed by Ler Majesty's government to be in accordance with the principles of international law and the practice of nations:

1. It is the duty of a neutral government, in all matters relating to the war, to act impartially toward the belligerent powers; to concede to one what it concedes to the other; to refuse to one what it refuses to the other.

2. This duty, inasmuch as it flows directly from the conception of neutrality, attends the relation of neutrality wherever it exists, and is not affected by considerations arising from the political relation which before the war the belligerents may have sustained to one another.

3. Maritime war being carried on by hostilities on the high seas, and through the instrumentality (ordinarily) of vessels commissioned by public authority, a neutral power is bound to recognize, in matters relating to the war, commissions issued by each belligerent, and captures made by each, to the same extent and under the same conditions as it recognizes commissions issued and captures made by the other.

t. Where either belligerent is a community or body of persons not recognized by the neutral power as constituting a sovereign state, commissions issued by such belligerent are recognized as acts emanating, not indeed from a sovereign government, but from a person or persons exercising de facto, in relation to the war, the powers of a sovereign corernunent.


In the rear 1861 it civil war broke out in the United States. Seren States--South Carolina, Florida, Mississippi, Alabama, Georgia, Louisiana, and Texas had one by one formally renounced their allegiance to the Union and declared themselves independent. They had formed themselves into a separate confederation, under the title of the “ Confederate States of North America;" had adopted a federal constitution, instituted a federal legislature, executive, and jndiciary; taken measures to raise an army of 100,000 men, and appropriated sums of money amount. ing to $2,029,485 (equal to more than 10,000,000 francs) toward the creation of a navy. This series of events commenced in November, 1860, and was completed before the end of March, 1861, at which time the confederate legislature had been for more than a month in session. In April, 1861, hostilities commenced between the Government of the Union and the Confederated States of the South; and shortly afterward four other States, Virginia, North Carolina, Tennessee, and Arkansas -likewise separated themselves from the Union and joined the confederacy, which thus embraced a vast and compact territory, extending from the river Potomac to the contines of the republic of Mexico.

The war began with the attack and bombardment by the confederates of Fort Sumter, a fort situate at the mouth of Charlestou Harbor, and held by a small garrison of United States troops. On the reduction of this place, which was speedily effected, followed within a few days the seizure, by Virginian militia, of Harper's Ferry, an important military arsenal at the confluence of the rivers Shenandoal and Potomac, and of the great naval arsenal and ship-building yaris of Norfolk, where the

James River discharges itself into Chesapeake Bay. Fort Sumter surrendered on the 13th April. On the 15th the *President of the

United States issued a proclamation calling out militia to the number of 75,000 men.' On the 17th Mr. Jefferson Davis (who had been elected in February to the ollice of President of the Confederate States) published a counter-proclamation, inviting applications for letters of marque and reprisal to be granted under the seal of the Confederate States against ships and property of the United States and their citizens. By a further proclamation, dated the 19th April, President Lincoln, after referring to the proposed issue of letters of marque, declared that he had deenied it advisable to set on foot a blockade of the ports within the seven States then in revolt, “in pursuance of the laws of the United States and of the law of nations in such case provid ell." 3

For this purpose a competent force will be posted so as to prevent entrance and exit of vessels from the ports aforesaid. If, therefore, with a view to violate such blockade, a vessel shall approach, or shall attempt to leave any of the said ports, she will be duly warned by the commander of one of the said blockading vessels, who will indorse on her register the fact and date of such warning; and if the same vessel shall again attempt to enter or leave the blockaded port, she will be captured and sent to the nearest convenient port for such proceedings against her and her cargo as prize as may be deemed advisable.

By another proclamation, dated the 27th April,' the blockade was declared to be extended to the ports of Northern Virginia.

On the publication of these proclamations, Lord Lyons, then Her Britannic Majesty's envoy at Washington, requested of the Government of the United States that he might be furnished, for the guidance of British merchants, with definite information as to the manner in which the blockade was to be enforced. He was assured, in reply, by Jr. Seward, then United States Secretary of State, that it would be conducted as strictly according to the recognized rules of public law, and with as much liberality toward neutrals, as any blockade ever was by a belligerent."

To the minister of the Queen of Spain, Mr. Seward wrote as follows:

Sir: In acknowledging the receipt of your note of the 30th ultimo, on the subject of the blockade of the ports in several of the States, I deem it proper to state for your further information: Appendix, vol. iii, p. 2.

Ibid., p. 4. 3 Ibid., p. 6.

Ibid., p. 9. "Ibid., pp. 10, 11.

« AnteriorContinuar »