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of claims to which Lord de Grey was supposed to allude as being objectionable "had not been put forward in the official correspondence-had only been made the subject of rhetorical efforts." And he again urged that "a partial submission would probably produce dissatisfaction in both countries-certainly in this country" (the United States).

A long discussion followed, which was terminated by Judge Williams asking Lord de Grey "to state what specific amendment he desired to make to the American proposition."

Lord de Grey said he desired the removal of the words "the differences."

Mr. Fish replied, "If I understand you, you wish to confine the reference to the Alabama claims."

Lord de Grey said, "Yes, substantially so."

"And leave all other questions open?" inquired Mr. Fish. "No," answered Lord de Grey, "not exactly that. I sup pose they would be covered by the treaty, if we come to one." Judge Hoar said he did not see how they could be, unless they were stated in the treaty.

The American commissioners retired to consider the objec tion of Lord de Grey. After some discussion, Mr. Fish saw Lord de Grey, who suggested that the draft should be altered so as to read that the contracting parties "thought that it was desirable that all differences, etc., should be settled, and agreed to submit the claims." Mr. Fish did not like the word "thought," and suggested instead the words "in order to remove" all differences. To this Lord de Grey assented.

Mr. Fish reported this proposition to the other American commissioners, who were satisfied with it.

The commission then reassembled, and it was agreed, on the suggestion of Lord de Grey, that the secretaries should before the next meeting confer on the form of articles for a treaty.

The secretaries accordingly spent the evenDraft of Articles. ing in conference on the subject, and afterward Mr. Davis drew out a form of articles which was duly communicated to the commissioners and formed the basis of subsequent discussion. Its substantial coincidence, in respect to the scope of the submission, with the treaty as signed may readily be seen:

MR. DAVIS'S DRAFT.

Whereas during the recent Rebellion in the United States differences arose between the Government of the United States and the Government of Her Britannic Majesty, and still exist, growing out of the acts committed by the several vessels, which have given rise to the claims generically known as the Alabama claims;

And whereas [insert expression of regret] it has been determined, in order to remove all such differences, and to establish permanent good relations between the two Governments, and provide for the speedy adjustment and settle ment of such claims:

The High Contracting Parties therefore agree that all the said claims growing out of the acts committed by several vessels generically known as the Alabama claims shall be referred, etc.

TREATY AS SIGNED.

Whereas differences have arisen between the Government of the United States and the Government of Her Britannic Majesty, and still exist, growing out of the acts committed by the several vessels which have given rise to the claims generically known as the "Alabama Claims";

are not

And whereas [expression of regret]: Now, in order to remove and adjust all complaints and claims on the part of the United States, and to provide for the speedy settlement of such claims which admitted by Her Britannic Majesty's Government, the HighContracting Parties agree that all the said claims, growing out of acts committed by the aforesaid vessels, and generically known as the "Alabama Claims," shall be referred, etc.

In the seventh article of Mr. Davis's draft Discussion of Draft. there was a provision to the effect that in case the commissioners should find Great Britain guilty of a violation of neutrality in respect to any particular vessel, the expenses of the United States for her pursuit and capture should be paid by Her Majesty's government on the presentation of the amount thereof certified by the proper department of the United States Government.

On the 10th of April Lord Tenterden told Mr. Davis that "Lord de Grey would never consent to send this language home;" that the first article, in employing the word "claims," without limiting them to the citizens of the United States, "was regarded as allowing such claims to go to arbitration;" that if

the language in question should be insisted on they might retort in London by demanding a modification of the first article, and that Lord de Grey regarded it as being better as it stood.

The American commissioners agreed to this, but on the 13th of April the question of the national claim for the pursuit of the cruisers again came up, in the discussion of the tenth article of the draft, relating to proceedings before the assessors, should such proceedings take place. Mr. Fish inquired whether it was understood that the claims of the Government of the United States for the pursuit and capture of the cruisers was to be considered by the arbitrators and assessors.

Lord de Grey said that the language of the tenth article did not enlarge the enacting words in the first article, and these had already been settled and agreed to.

The enacting words, as they then stood, having been agreed to on April 12, were:

"Therefore, in order to remove and adjust all complaints and claims on the part of the United States, and to provide for the speedy settlement of such claims, the High Contracting Parties agree that all the said claims, growing out of acts committed by the aforesaid vessels, and generically known as the 'Alabama Claims,' shall be referred," etc.

Mr. Fish observed that what Lord de Grey said was true; but in connection with the tenth article it might be necessary to provide for the proof of the class of claims in question.

The British commissioners retired to consult; and when they returned Lord de Grey said that "they would not consent to alter, to enlarge, or to open the words of the enacting clause that had been already agreed to, and that if it was insisted upon they should ask for an immediate adjournment."

The American commissioners then retired, and on returning read the following paper:

"We can consent to leave the language as it is upon the articles as they are, observing that in so assenting we are not to be in any wise understood to agree to a construction of the article that will exclude the claims of the United States for the pursuit of the vessels; but, on the contrary, we assent to the language used because we consider it sufficient to include all claims of the government which the arbitrators may find just; it being understood that the claim of the United States for such pursuit is to appear in the protocol which is to be made. as having been expressly advanced and made by the United States in the opening of this discussion."

Lord de Grey said he understood that "the artic.es were to be passed, subject to the arrangement of such a protocol at some future meeting."

Immediately after the adjournment of the conference Mr. Davis drew, under instructions, a draft of the proposed protocol, which, after revision by the American and British commissioners, was formally agreed to on the 4th of May.

Construction of Treaty in America.

After careful consideration of these discussions, in the light of what subsequently occurred, I confess that the impression made on my own mind is that the British commissioners thought that the treaty as agreed on excluded the indirect claims from reference to the arbitrators, while the American commissioners as certainly entertained the opposite opinion. An eminent correspondent who was in the United States just after the ratification of the treaty by the Senate spent two days with Mr. Sumner in Washington, and went over the treaty with him almost line by line. At Mr. Sumner's house he met Mr. Cushing and other gentlemen. Throughout all their conversations the presentation of the indirect claims at Geneva was not merely assumed, but asserted, and the shape they would take was discussed. In subsequent conversations with the President, and with that one of the American commissioners who, perhaps, "actually drew the greater part of the treaty," and with Mr. Adams, the same view was invariably expressed. No one suggested that the United States had abandoned the indirect claims. Even General Butler, who bitterly assailed the treaty, did not suggest it. No one hinted that the British commissioners had been overreached or deceived, and no one supposed that between them and the American commissioners there could be any misunderstanding. And yet such a misunderstanding arose; and the fact that it did not develop itself to the minds of the commissioners before the close of the negotiation was,

Mr. George W. Smalley, in the London Times, February 14, 1872. Mr. Smalley, in another letter, published in the Times of February 15, 1872, said that in a conversation with the President, after the ratification of the treaty, the President expressed "the satisfaction with which he had seen a settlement reached, and the pride he took in the success of a policy which had marked his administration from the beginning-a policy of peace. Of war he had seen enough, and more than enough, His ambition was to settle all standing disputes, and to take care that no new ones were opened." The President had a reputation for being taciturn, "but for once he spoke freely and warmly.”

I think, due to the circumstance, which has heretofore been noticed, that, deterred by the practical difficulties of the subject, neither side sought an explicit discussion of it.1

Construction of Treaty in England.

In the debate on the treaty in the House of Lords on June 12, 1871, Earl Granville read from the protocol of March 8 the statement of Mr. Fish that "the history of the Alabama and other cruisers showed extensive direct losses * 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 said: "These were the 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."2

Lord Derby considered the treaty a poor one, but thought that, as it had been made, it should be accepted as an accomplished fact. The only concession, he said, of which he could see any trace on the American side was "the withdrawal of that utterly preposterous demand that we should be held responsible for the premature recognition of the South as a belligerent power in company with that equally wild imagination, which I believe never extended beyond the minds of two or three speakers in Congress, of making us liable for all the constructive damage to trade and navigation which may be proved or supposed to have arisen from our attitude during the war." 3

The Earl de Grey considered that the government had "accomplished a signal benefit in binding the American Government by rules which are just and reasonable in themselves, and from which, in case of future wars, no country on the

Mr. Fish, in a telegram to General Schenck of February 29, 1872, said: "Whatever the British commissioners may have intended or thought among themselves, they did not eliminate the claims for indirect losses, they never asked us to withdraw them, nor did they allude to them directly or in plain terms; and after the deliberations of the joint commission were closed, Tenterden and the British commissioners allowed them to be formally enumerated in statement of 4th of May without a word of dissent." Papers Relating to the Treaty of Washington, II. 434.

2 Hansard, 3d series, CCVI. 1852.

3 Id. 1864.

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