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doubt that the difference as to the question whether the indirect claims were excluded was the result of a simple misunderstanding. These claims formed a subject which the commissioners on both sides were more anxious to get rid of than to discuss. By various utterances the American public had been led to expect that they would be included in any refer ence to arbitration; and the American commissioners, while regarding the claims as unsound, desired to have them disposed of by the tribunal of arbitration. Understanding the situation of the American commissioners, and being desirous to conclude an arrangement, the British commissioners, thinking that the terms of the protocol and the language of the treaty would be so construed as to exclude the indirect claims, doubtless deemed it well to avoid any attempt to secure from the United States an express renunciation of them. This is, it should seem, a fair statement of the respective positions of the commissioners-positions perfectly comprehensible, and not in any wise morally censurable. But as the course of the United States, and of its agent at Geneva, in putting forward the indirect claims has been severely criticised, it is proper to present a review of the controversy as it appears in the records.

Statement of March 8, 1871.

As has been seen, the national or indirect claims were first formulated in the speech of Mr. Sumner, urging the rejection of the Johnson-Clarendon convention. They were diplomatically brought to the attention of the British Government by an instruction from Mr. Fish to Mr. Motley of September 25, 1869, which was read by Mr. Motley to Lord Clarendon. At the meeting of the joint high commission on March 8, 1871, to which reference has already been made, Mr. Fish opened the conference by reading a statement of the American claims, which appears in the protocol of May 4, 1871, as follows:

"At the conference held on the eighth of March the American commissioners stated that the people and Government of the United States felt that they had sustained a great wrong, and that great injuries and losses were inflicted upon their commerce and their material interests by the course and conduct of Great Britain during the recent rebellion in the United States; that what had occurred in Great Britain and her colonies during that period had given rise to feelings in the United States which the people of the United States did not

1 For. Rel. 1873, part 3, pp. 329, 335; Papers Relating to the Treaty of Washington, II. 462.

desire to cherish toward Great Britain; that the history of the Alabama and other cruisers which had been fitted out, or armed, or equipped, or which had received augmentation 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 expenditures in 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 sum 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 fourteen millions of dollars, without interest, which amount was liable to be greatly increased by claims which had not been presented; that the cost to which the government had been put in the pursuit of cruisers could easily be ascertained by certificates of government accounting officers; that in the hope of an amicable settlement no estimate was made of the indirect losses, without prejudice, however, to the right to indemnification on their account in the event of no such settlement being made.

"The American commissioners further stated that they hoped that the British commissioners would be able to place upon record an expression of regret by Her Majesty's government for the depredations committed by the vessels whose acts were now under discussion. They also proposed that the joint high commission should agree upon a sum which should be paid by Great Britain to the United States, in satisfaction of all the claims and the interest thereon.

"The British commissioners replied that Her Majesty's government could not admit that Great Britain had failed to discharge toward the United States the duties imposed on her by the rules of international law, or that she was justly liable to make good to the United States the losses occasioned by the acts of the cruisers to which the American commissioners had referred. They reminded the American commissioners that several vessels, suspected of being designed to cruise against the United States, including two ironclads, had been arrested or detained by the British Government, and that that government had in some instances not confined itself to the discharge of international obligations, however widely construed, as, for instance, when it acquired at a great cost to the country the control of the Anglo-Chinese flotilla, which, it was apprehended, might be used against the United States.

"They added that although Great Britain had, from the beginning, disavowed any responsibility for the acts of the Ala

bama and the other vessels, she had already shown her willingness, for the sake of the maintenance of friendly relations with the United States, to adopt the principle of arbitration, provided that a fitting arbitrator could be found, and that an agreement could be come to as to the points to which arbitration should apply. They would therefore abstain from replying in detail to the statement of the American commissioners, in the hope that the necessity for entering upon a lengthened controversy might be obviated by the adoption of so fair a mode of settlement as that which they were instructed to propose; and they had now to repeat, on behalf of their government, the offer of arbitration. "The American commissioners expressed their regret at this decision of the British commissioners, and said further that they could not consent to submit the question of the liability of Her Majesty's government to arbitration unless the principles which should govern the arbitrator in the consideration of the facts could be first agreed upon."

Conference of
April 6.

On the 6th of April, rules for the government of the arbitrators having been agreed upon, the British commissioners, who, with some of the American commissioners, preferred the head of a state as arbitrator, agreed to the proposition of Mr. Fish for a tribunal of jurists, and the commissioners then entered upon the question of the kind of award which should be made. This involved the further question of the scope of the submission. From the private journal kept by Mr. Bancroft Davis, the American secretary, and written each day at the close of the conference, I extract the narrative which follows of the discussions of the commissioners.

The American commissioners desired that the arbitrators should be empowered to award a gross sum. Lord de Grey, while admitting that this process had its advantages, thought that if a gross sum was to be named it was important to know what elements should enter into it-what should be the measure of damages.

The American commissioners apprehended that there would be great difficulty in defining any limitation; the discussion which would result would be long and unsatisfactory. They suggested that the tribunal should take into consideration the whole diplomatic correspondence, and such further facts and documents and arguments as might be submitted by either government, and apply to them the principles already agreed upon, together with other principles of international law which had not been discussed in the conference, and that the arbi

trators, being judges both of fact and of law, could then determine what gross sum ought to be awarded for any violations of law which might have occurred.

Lord de Grey replied that these suggestions opened a wide field. To speak frankly, he felt bound to say that the reference should not be made so wide as to allow the arbitrator to take a claim which had been put forward in the correspondence, though he supposed not seriously, for compensation for the expenses to which the United States had been put by the prolongation of the war. It would not do to open the door to vague claims.

Mr. Fish asked if he would exclude that claim. Suppose a competent tribunal should decide that Great Britain was liable; would Great Britain deny her liability?

Lord de Grey said he had certainly no authority to consent to a reference of such a claim.

Sir Stafford Northcote remarked that he did not think it quite fair to refuse a limitation to the rule of damages, when Great Britain had been restricted by the articles already agreed to as to the denial of her original liability.

Lord de Grey said that they were beating about the bush for words. If the American commissioners would put in shape what they meant it was possible that the British commissioners would assent to it.

Judge Hoar asked why Lord de Grey would not state what he wanted.

Lord de Grey replied, "I think it is for you to state. You evidently have some definite view."

Judge Hoar said: "No. We propose general suggestions, and you indicate a desire to limit them. You should state your limitations."

Lord de Grey thought it very desirable to keep on general grounds, and to avoid difficulties which were sure to arise if they went much further into details.

The British commissioners retired for consultation, and on their return suggested an adjournment, which was taken to the 8th of April.

Conference of
April 8.

At the meeting on that day the American commissioners presented a draft of articles for the submission of the Alabama claims. The draft began: "The High Contracting Parties agree that all

the differences between the two governments which arose during the recent rebellion in the United States, growing out of the acts committed by the several cruisers which have given rise to the claims generically known as the Alabama claims, and all such claims, shall be referred to five commissioners," etc.

Lord de Grey observed that this paragraph "made a provision for a reference of all differences, and of all claims," thus drawing a distinction between differences and claims. "Differences," he continued, "was a very wide word. It was laid down in a subsequent part of the paper that the official correspondence was to be laid before the arbitrator. In that correspondence there had been at various times a variety of points raised, some of vague descriptions, embodying demands of the largest class." Lord de Grey pointed out that in the letter of Sir Edward Thornton to Mr. Fish of February 1 it was said that he was authorized to state that it "would give Her Majesty's government great satisfaction if the claims commonly known by the name of the Alabama claims were submitted." This language, he urged, "distinctly precluded the submission of differences as distinguished from the Alabama claims. * The words used were wide and vague and capable of a meaning which he was confident the American commissioners did not intend to give them. He hoped they would consent to use language guarding against a danger which was to them a real danger."

Mr. Fish in reply read from his letter of January 30 to Sir Edward Thornton, in which he said that the President was of opinion that "the removal of the differences which arose during the rebellion in the United States and which have existed since then growing out of the acts committed by the several vessels which have given rise to the claims generically known as the Alabama claims," would be essential to the restoration of amicable relations. "Such questions," said Mr. Fish, "as had been there alluded to had been raised, and such differences did exist, and it was essential that they should be included in the submission in order to remove all causes of difference."

Lord de Grey "feared if this was insisted on that the whole labors" of the commission "might break down on this point." It was, he declared, one thing to agree to treat of differences and another thing to agree to submit them all to arbitration.

Mr. Fish called attention to the fact that the particular class

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