3 9002 0711 f **- fV ¦'¦'-• w »,xv ,.'' .' :«»:' M:^'*-- ."^¦>T^ *'*r *Ul 'V '/•t >« i .', *. -Co y>- . C^S-^'^JG^ THE TREATY OP WASHINGTON: ITS NEGOTIATION, EXECUTION, AND THE DISCUSSIONS RELATING THERETO. BY CALEB GUSHING. KEW YORK: HAEPEE & BEOTHEES, PUBLISHERS, FRANKLIN SQUARE. 1873. Entered according to Act of Congress, in the year 1873, by HARPER & BROTHERS, In the Office of the Librarian of Congress, at Washington. INSCRIBED, IN TESTIMONY OF PROFOUND RESPECT, TO COUNT FREDERIC SCLOPIS, OF SALERANO, MINISTEE OF STATE, SENATOR OF THE KINGDOM OF ITALY. CONTENTS. TAQK CHAPTER I. INTRODUCTION 1> CHAPTER n. ALABAMA CLAIMS 15 Conduct of Great Britain toward the United States during the late CivU War 15 Negotiations by Mr. Seward 17 Policy of President Grant 18 Overtures by Great Britain 20 Stipulations respecting the Alabama Claims 21 Ai-rangements of Arbitration 26 The American Case 30 Explanation of Objections to the American Case 33 Agitation respecting the National Claims 34 Cause of this Agitation 39 Discussion between the two Governments 42 English Misconception of American Sentiment 48 Attitude of the American Government 52 Action of the American Agent and Counsel 55 Presentation of Counter-Cases 57 CONTENTS. PACIE Negotiations for a Supplemental Treaty. 62 Presentation of Arguments for the United States 66 Decision of the Arbitrators respecting National Losses 69 Seat of the Arbitration 74 Count Frederic Sclopis 77 Mr. Staempfli 80 Viscount of Itajuba *. 84 Sir Alexander Cockburn 86 Mr. Charles Fr9,ncis Adams 93 Secretary of the Tribunal 94 Agents and Counsel 94 Efforts of the British Government to obtain Eeargument 99 Rules concerning the Conferences of the Tribunal — 106 Discussions of the Tribunal 109 Sir Alexander Cockbum's Call for Reargument lU Case' of the Florida decided 114 Special Arguments ordered on Certain Points 117 Case of the Alabama decided . . . .' 118 Case of the Shenandoah decided 120' The Special Arguments 121 Question of Damages 124 Final Judgment of the Tribunal 125 Announcement of the Decision 126 Conduct of the British Arbitrator 128 CONTENTS. vii PAGE' Sir Alexander Cockbum's Reasons for Dissent 128 Review of Sir Alexander Cockbum's "Reasons " 130 Opinions of the other Arbitrators 14y // Review of the Decision of the Tribunal on National Losses 153 Decision as to Private Losses I59 Effect of the Award . . 154 Validity of the Award 167 Filibuster Objections 177 Sale of Arms not affected by the Treaty or the Award 180 Question of Supplies of Coal 180 What the United States have gained by the -Award 184 CHAPTEE m. MISCELLANEOUS CLAIMS 187 Treaty Provisions 187 Private Claims on Governments 189 Usefulness of Mixed Commissions 193 Other Forms of Arbitration 195 Tendency of Eeason and Justice to prevail over Force 197 Theoiy of Arbitration 200 Wisdom of the present Mixed Commission 201 CHAPTEE IV. THE NORTHWESTERN BOUNDARY-LINE.. 203 Provisions of the Treaty 203 History of .the Question 205 The Award 221 viii CONTENTS. PAGE CHAPTEE \. THE FISHERIES 226 History of the Question 226 Provisions of the Treaty of Washington 237 Probable Amount of Indemnity 239 CHAPTER VL COMMERCIAL INTERCOURSE AND TRANS PORTATION. .241 Treaty Provisions 241 Relation of the British Provinces to the United States 247 APPENDIX.— THfi TREATY OF WASHINGTON 257 ' THE DECISION AND AWARD 275 THE TREATY OF WASHINGTON. CHAPTEE I. INTRODUCTION. The Treaty, oi^ Washington, whether it be regard ed in the light of its general spirit and object, of its particular stipulations, or of its relation to the high contracting parties, constitutes one of the most nota ble and interesting of all the great diplomatic acts of the present age. It disposes, in forty-three articles, of five different subjects of controversy between Grreat Britain and the United States, two of them European or imperial, three American or colonial, and some of them of such nature as most imminently to imperil the precious peace of the two great English-speaking nations. Indeed, several of these objects of controversy are questions coeval with the national existence of the United States, and which, if lost sight of occasionally in the midst of other pre-occupations of peace or war, yet continually came to the Surface again from time 10 THE TREATY OF WASHINGTON. to time to vex and disturb the good understanding of both Governments. Others of the questions, al though of more modern date, incidents of our late Civil War, were all the more irritating, as being fresh wounds to the sensibility of the people of the United States, K, to all these considerations, be added the fact that negotiation after negotiation respecting these ques tions had failed to. resolve them in a satisfactory manner, it will be readily seen how great was the diplomatic triumph achieved by the Treaty of Wash ington. It required peculiar inducements and agencies to accomplish this great result. Prominent among the inducements -were the pacific spirit of the President of the United States and the Queen of Great Britain, and of their respective Cabi nets, and the sincere and heartfelt desire of a great majority of the people of both countries that no shadow of offense should be allowed any longer to linger on the face of their international relations. Great Britain, it is but just to her to say, if not con fessedly conscious of wrong, yet, as being the party to whom wrong was imputed, did honorably and wisely make the decisive advance toward reconciliation, by consenting to dispatch five Commissioners to Wash ington, there, under the eye of the President, to treat with five Commissioners on behalf of the United States. Diplomatic congresses have assembled on previous occasions to terminate the great" wars of Europe, or INTRODUCTION. n to maintain and consolidate peace in America. And conferences, like those of Vienna, of Aix-la-Chapelle, of Paris, may have embraced the representation and settled the interests of a larger number of nations; but they did not consist of higher personages, nor did they treat of larger matters than did the conference of Washington. On the part of the United States were£ve persons, — Hamilton Fish, Robert C. Schenck, Samuel Nelson, Ebenezer Eockwood Hoar, and George H.Williams, — eminently fit representatives of the diplomacy, the bench, the bar, and the legislature of the United States : on the part of Great Britain, Earl De Grey and Eipon, President of the Queen's Council ; Sir Staf ford Northcpte, ex-Minister and actual Member of the House of Commons ; Sir Edward Thornton, the uni versally respected British Minister at Washington ; Sir John Macdonald, the able and eloquent Premier of the Canadian Dominion ; and, in revival of the good old time, when learning was equal to any other title of public honor, the Universities in the person of Professor Mountague Bernard. With persons of such distinction and character, it was morally impossible that the negotiation should fail : the negotiators were hound to succeed. Their reputations, not less than the honor of their respective countries, were at stake. The circumstances involved moral coercion, more potent than physical force. The issues of peace and of war were in the hands of those ten personages. They were to illustrate the eternal truth that, out of the differences of nations, competent 12 THE TREATY OF WASHINGTON. statesmen evolve peace; and that it is only by the incompetency of statesmen of one side or the other, — that is, their ignorance, their passion, their prejudice, their want of forecast, or their willfully aggressive ambition, — that the unspeakable calamities of war are ever thrust on the suffering world. Neither Mr. Fish nor Earl De Grey, nor their respective associates, could afford to take on their consciences the respon sibility, or on their characters the shame, of the non- success on this occasion of a last effort to renovate and re-establish in perpetuity relations of cordial friendship b'etweeu Great Britain and the United States. And, if they needed other impulse to right conclusion, that was given by the wise and firm direc tion of the President, hfere in person, and of the Queen, here in effect through the means of daily telegraphic communication. Happily for the peace of the two countries and for the welfare of the world, the negotiators proved equal to the emergency, in courage as well as in statesman ship. The Government and the people of Great Brit ain had learned to regret sincerely the occurrence of the acts or facts which had given such deep offense, and which had done such serious injury, to the United States; and, moreover, the Government and people of this country had come to desire, with equal sincerity, that some honorable solution of the existing difficul ties might be found, so as to leave room for the un obstructed action here of the prevailing natural tend ency toward unreserved intellectual and commercial association with Great- Britain. Material interests, INTRODUCTION. 13 social sentiments, incidental circumstances, all invited both nations' to cordial reunion. In the face of many difficulties, the Commissioners, on the 8th of May, 1871, completed a treaty, which received the prompt approval of their respective Governments; which has passed unscathed through the severest ordeal of a temporary misunderstanding between the two Governments respecting the con struction of some of its provisions ; which has already attained the dignity of a monumental act in the esti mation of mankind ; and which is destined to occupy hereafter a lofty place in the history of the diplomacy and the international jurisprudence of Europe and America. Coming now to the analysis of this treaty, we find that Articles I. to XI. inclusive make provisions for the settlement by arbitration of the injuries alleged to have been suffered by the United States in conse-. quence of the fitting out, arming, or equippiag, in the ports of Great Britain, of Confederate cruisers' to make war on the United States. Articles XH. to XVII. inclusive make provision to settle, by means of a mixed Commission, all claims on either side for injuries by either Government to the cit izens of the other during the late Civil War, other th^n claims growing out of the acts of Confederate cruisers disposed of by the previous articles of the Treaty. Articles XVIII. to XXV. inclusive contain provi sions for the permanent regulation of the coast fish eries on the Atlantic shores of the United States and of the British Provinces of Quebec, Nova Scotia, and 14 THE TREATY OF WASHINGTON. New Brunswick, and the Colony of Prince Edward's Island [including the Colony of Newfoundland by Article XXXII.]. Articles XXVI. to XXXIII. inclusive provide for the reciprocal free navigation of certain rivers, includ ing the Eiver St. Lawrence ; for the common use of certain canals in the Canadian Dominion and in the United States ; for the free navigation of Lake Mich igan; for reciprocal free transit across the territory either of the United States or of the Canadian Do minion, as the case may be: the whole, subject to legislative provisions hereafter to be enacted by the several Governments. Articles XXXIV. to XLII. provide for determining by arbitration which of two different channels be tween Vancouver's Island and the main-land consti tutes the true boundary -line in that- region of the territories of the United States and Great Britain. Each »f these five distinct classes of questions will receive separate consideration. ALABAMA CLAIMS. 15 CHAPTEE n. ALABAMA CLAIMS. CONDUCT OF GREAT BRITAIN TOWARD THE UNITED STATES DURING THE LATE CIVIL WAR. At the conclusion of the Civil War, intense feeling of indignation against Great Britain 'pervaded the minds of the Government and Congress of the United States, and of the people of those of the States which had devoted themselves to maintaining in arms the integrity of the Union against the hostile efforts of the Southern Confederation. We charged and we believed that Great Britain and her Colonies had been the arsenal, the navy-yard, and the treasury of the Confederates. We. charged and we believed that Confederate cruisers, which had depredated largely on our ship ping and maritime commerce, never could have taken and never held the sea, but for the partiality and gross negligence of the British Government. We charged and we believed that but for the pre mature recognition, of the belligerence of the Confed erates by Great Britain, and the direct aid- or sup plies which were subsequently furnished to them in British ports, the insurrection in the Southern States never would have assumed, or could not have retained, 16 THE TREATY OF WASHINGTON. those gigantic proportions, which served to render it so costly of blood and of treasure to the whole Union, and so specially disastrous to the Southern States themselves. We charged and wq believed that, in all this, Great Britain, through her Government, had ' disregarded the obligations of neutrality imposed on her by the law of nations to such manifest degree as to have af forded to the United States just and ample cause of war. The United States, through all these events, with William H. Seward, as Secretary of State, and Charles Francis Adams, Minister at London, had not failed to address continual remonstrances to the British Gov ernment, demanding reparation for past wrong and the cessation from continuous wrong: which remon strances did, in fact, at length awaken the British Government to greater vigilance in the discharge of its international duties^ but could not induce it to take any step toward reparation so long as Earl Eus- sell [then Lord John Eussell], by whose negligence or misjudgment the injuries had happened, remained in charge of the foreign affairs of the Government. That statesman, while, on more than one occasion, expressly admitting the wrong done to the United States, still persisted, with singular obtuseness or narrowness of mind, in maintaining that the lionm' of England would not permit her to make any reparation to the United States. Never, in the history of nations, has an occasion ex isted where a powerful people, smarting under the ALABAMA CLAIMS. 17 consciousness of injury, manifested greater magnanim ity than was displayed in that emergency by the United States. We had on the sea hundreds of ships of war or of transport ; we had on land hundreds of thousands of veteran soldiers under arms ; we had officers of land and sea, the combatants in a hundred battles : all this vast force of war was in a condition to be launched as a thunderbolt at any enemy; and, in the present case, the possessions of that enemy, whether conti nental or insular, lay at our very door in tempting helplessness. But neither the Government and people of the United States, nay, nor their laurel-crowned Gener als and Admirals, desired war as a choice, nor would accept it but as a necessity ; and they elected to con tinue to negotiate with Great Britain, and to do what no great European State has ever done under like cir cumstances, — that is, to disarm absolutely, and make thorough trial of the experiment of generous forbear ance before having recourse to the dread extremity of vengeful hostilities against Great Britain. NEGOTIATIONS BY MR. SEWARD. The event justified our conduct. . To the prejudiced and impracticable Lord Eussell, there succeeded in charge of the foreign affairs of the British Govern ment, first, Lord Stanley [now the Earl of Derby], and then the Earl of Clarendon, who, more wise and just than he, successively entered upon negotiations with the United States on that very basis of arbitra- B * 18 THE TREATY OF WASHINGTON. tion which he had so peremptorily rejected, but which Mr. Seward persisted in asserting as wise in itself and honorable to both Governments. Those negotiations failed. But the rejection by the Senate of the Clarendon- Johnson Treaty, with Mr. Sumner's commentary thereon, if it had the ap parent effect, at first, of widening the breach between the two countries by the irritation it produced in En gland, yet ultimately had the opposite effect by forc ing on public attention there a more' general .and clearer perception of the wrong which had been done to the United States. POLICY OF PRESIDENT GRANT. At this stage of the question, President Grant came into office ; and he and his advisers seem to have well judged that it sufficed for him, after gi-ving. expres sion fully and distinctly to his own view of the questions at issue, there to pause and wait for the tranquillization of opinion in England, and the prob able initiation of new negotiations by the British Government. It happened as the President anticipated, and with attendant circumstances of peculiar interest|^o the' United States. During the late war between Germany and France, the condition of Europe was such as to induce the British Ministers to take into consideration the for eign relations of Great Britain ; and, as Lord Gran ville, the British Minister of Foreign Affairs, has' him self stated in the House^ of Lords, they saw cause to ALABAMA CLAIMS. 19 look with solicitude on the uneasy relations of the British Government with the United States, and the inconvenience thereof in case of possible complica tions in Europe. Thus impelled, the Government dispatched to Washington a gentleman, who enjoyed the confidence of both Cabinets, Sir John Eose, to as certain whether overtures for re-opening negotiations would be received by the President in spirit and terms acceptable to Great Britain. It was the second time, in the present generation, that the foreign policy of England had been directed by a sense of the importance to her of maintaining good relations with the United States; for, by argu ing from that point, France, at the opening of war with Prussia, induced the British Government to de sist from those excessive belligerent pretensions to. the prejudice of neutrals, which in former times had served to embroil her with both France and the Unit ed States. There is another fact, which, in my opinion, power fully contributed to induce this overture on the part of the British Government, although it was not spok en of in this connection by Lord Granville. I allude to the President's recommendation to Congress to ap point a commission to audit the claims of American citizens on Great Britain growing out of the acts of Confederate cruisers, in view of having them assumed by the Government of the United States. In this in cident there was matter of grave and serious reflection to Great Britain. On arriving at Washington, Sir John Eose found 20 THE TREATY OF WASHINGTON. the United States disposed to meet with perfect cor respondence of good-will the advances of the British Government. OVEETUEES BY GEEAT BEITAIN. Accordingly, on the 26th of January, 1871, the British Government, through Sir Edward Thornton, formally proposed to the American Government the appointment of a joint High Coinmission to hold its sessions at Washington, and there devise means to settle the various pending questions between the two Governments affecting the British possessions in North America. To this overture Mr. Fish replied that the President would with pleasure appoint, as invited, Commission ers on the part of the United States, provided the de liberations of the Commissioners should be extended to other differences,— that is to say, to include the dif ferences growing out of incidents of the late Civil War: without which; in his opinion, the proposed Commission would fail to establish those permanent relations of sincere and substantial friendship between the two countries which he, in common with the Queen, desired to have prevail. The British Government promptly accepted this proposal for enlarging the sphere of the negotiation, with the result, as we have already seen, of the con clusion of the Treaty of Washington. ALABAMA CLAIMS. 21 STIPULATIONS RESPECTING THE ALABAMA CLAIMS. The Treaty begins by describing the differences, which we are now considering, as differences " grow ing out of the acts committed by the several vessels, which have given rise to the claims generically known as the Alabama Claims;" which are further de scribed as "all the said claims growing out of acts committed by the aforesaid vessels, and generically known as the Alabama- Claims.^'' Note that the subject of difference is stated in terms of absolute, although specific, universality, as all the claims on the part of the United States growing out of the acts of certain vessels. No exception is made of any particular claims growing out of those acts. And reference is not majde to certain admitted claims by the British Government : on the contrary, it is ex pressly declared in the Treaty that the " complaints" and " claims" of the United States, without any dis crimination between them, " are not admitted by the British Government." At the same time, the British Commissioners, by authority of the Queen, express, " in agfriendly spirit, the regret felt by Her Majesty's Government for the escape, under whatever circumstances, of the Alabama and other vessels from British ports, andfor the dep redations committed by those vessels." Whereupon, "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 contracting parties agree that all 22 THE TREATY OF WASHINGTON. the said claims, growing out of acts committed by the aforesaid vessels, and generically known as the Ala-' lama Claims, shall be referred to a Tribunal of Ar bitration to be composed of five Arbitrators, appoint ed in the following manner, — namely, one by the Pres ident of the United States, and one by the Queen of the United Kingdom, with request to the King of Italy, the President of the Swiss Confederation, and the Emperor of Brazil, each to name an Arbitrator ; and, on the omission of either of those personages to act, then with a like request to the King of Sjveden and Norway. The Treaty further provides that the Arbitrators shall meet at Geneva, in Switzerland, at the earliest convenient day after they shall have been named, and shall proceed impartially and carefully to examine and decide all questions which shall be laid before them on the part of either Government. In deciding the matters submitted to the Arbitra tors, it is provided that they shall be governed by certain rules, which are agreed upon by the parties as rules to be taken as applicable to the case, and by such principle^ of international law, not inconsistent therewith, as the Arbitrators shall determine to have been applicable to the case, which rules are as fol lows: " A neutral Government is bound — " First, to use. due diligence to prevent the fitting out, arm ing, or equipping, within !ts jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Pgwer with which it is at peace; and also to use like diligence to prevent the departure from its ju- ALABAMA CLAIMS. 23 risdiction of any vessel intended to 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 sufier either belligerent to make use of its ports or waters as the base of naval operations agaipst 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 and wa ters, and, as to all persons within its jurisdiction, to prevent any violation of thei foregoing obligations and duties." Great Britain, it is added in the Treaty by way of explanation, can not assent to the foregoing rules as a statement of principles of international law which were actually in force at the time when the claims in question arose ; but, in order to evince her desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, she agrees that, in deciding the questions aris ing out of such claims, the Arbitrators should assume that she had undertaken to act upon the principles set forth in the# rules. And the Parties proceed to stipulate to observe these rules as between themselves in the future, and to bring them to the knowledge of other maritime Powers, and to invite the latter to accede thereto. In respect of procedure, the Treaty provides that each of the two Parties shall name one person to at tend the Tribunal as its agent or representative; that the written or printed case of each of the two Parties, accompanied by the documents, the official correspondence, and -other evidence on which each relies, shall be delivered in duplicate to each of the 24 THE TREATY OF - WASHINGTON. Arbitrators and to the agent of the other Party, as soon as may be after the organization of the Tribu nal; that within four months after the delivery on bojth sides of the •written or printed case, either Party may, in like manner, deliver in duplicate to each of the said Arbitrators and to the agent of the other Party a counter-case, and additional documents, cor- re|pondence, and evidence, in reply to the case, docu ments, correspondence, and evidence so presented by the other Party; that it shall be the duty of the agent of each Party, within two months after the ex piration of the time limited for the delivery of the counter-case on both sides, to deliver in duplicate to each of the said Arbitrators and to the agent of the other Party a written or printed argument sho'wing the points and referring to the evidence upon which his Government relies. • No express provision for the appointment of coun sel appears in the Treaty; but they are recognized in the clause which declares thamhe Arbitrators may, if they desire further elucidation with regard to any point, require a written or printed state ment or argument, or oral argument, by counsel upon it ; but in such case the other Party shall be enti tled to reply either orally or in writing, as the case may be. Finally, with reference to procedure, it is stipu lated that the Tribunal shall first determine as to each vessel separately, whether Great Britain has, by any act or omission, failed to fulfill- any of the duties set forth in the Treaty rules, or recognized by the ALABAMA CLAIMS. 25 principles of international law not inconsistent with such rules, and shall certify such fact as to e9.ch of the said vessels. This decision shall, if possible, be reached within three months from the close of the argument on both sides. In case the Tribunal finds 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. 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 Parties agree that a Board of Assessors shall be appointed to ascertain and determine what claims are valid, and what amount or amounts shall be paid by Great Britain to the United States on account of the liability aris ing from such failure, as to each vessel, according to the extent of such liability as decided by the Arbi trators. This Board to be constituted as follows : One member thereof to be named by the United States, one by Great Britain, and one by the Eepre- sentative at Washington of the King of Italy. In conclusion, the Parties engage to consider the result of the proceedings of the Tribunal pf Arbitra tion and of the Board of Assessors, should such Board be appointed, " as a full, perfect, and final set- 26 THE TREATY OF WASHINGTON. tlement. of all 'the claims" in question; 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 Tribunal 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." ARRANGEMENT! OF ARBITRATION. The appointment of Arbitrators took place in due course, and with the ready good-will of the three neu tral Governments. The United States appointed Mr. Charles Francis Adams ; Great Britain appointed Sir Alexander Cockburn ; the King of Italy named Count Frederic Sclopis ; the President of the Swiss Confed eration, Mr. Jacob Stsempfli ; and the Emperor of Brazil, the Baron d'ltajubd. Mr. J. C. Bancroft Davis was appointed Agent of the United States, and Lord Tenterden of Great Britain. The Tribunal was organized for the reception of the case of each Party, and held its first conference on the 15th of December, 1871. , On the motion of Mr. Adams, seconded by Sir Alexander Cockburn, it was voted that Count Sclopis, as being the Arbitrator named by the first Power mentioned in the Treaty after Great Britain and the United St9,tes, should preside over the labors of the Tribunal. I observe in passing, as will be more distinctly seen •ALABAMA CLAIMS. 27 hereafter, that the personal fitness of Count Sclopis also rendered it eminently proper that he should pre side ; for he was the senior in age of all the Arbitra tors, of exalted social condition, and distinguished as a man of letters, a jurist, and a statesman. On the proposal of Count Sclopis, the Tribunal of Arbitration requested the Arbitrator named by the President of the Swiss Confederation to i-ecommend some suitable person to act as the Secretary of the Tribunal. Mr. Stsempfli named for this office Mr. Alexandre Favrot, and he was accordingly appointed Secretary, The printed Case of the United States, with accom panying documents, was filed by Mr. Bancroft Davis, and the printed Case of Great Britain, with docu ments, by Lord Tenterden. The Tribunal made regulatiqj^ for the filing of the respective Counter-Cases on or before the 15th day of April next ensuing, as required by the Treaty ; and for the convening of a special meeting of the Tribu nal, if occasion should require ; and then, at a second meeting,' on the next day, they adjourned until the 15th of June next ensuing, subject to a prior call by the Secretary, if there should be occasion, as provided for in the proceedings at the first Conference. The record of these, and of all the subsequent Con ferences of the Tribunal, is contained in altemafe.Fro- tocols, drawn up both in French and in English, veri fied by the signatures of the President and Secretary, and of the agents of the, two Governments. ' In these opening proceedings, that is, at the -very 28 THE TREATY OF WASHINGTON. earliest moment possible, signs became visible of the singular want of discretion and good sense of the "enfant terrible," ostentatiously protocol "Lord Chief Justice of England," whom the British Govern ment had placed on the Tribunal. The vernacular tongue of Count Sclopis was Ital ian; that of the Baron d'ltajuba, Portuguese; and that of Mr; Stsempfli, German. Count Sclopis spoke and read English, and Mr. Stsempfli read it. All the Arbitrators, however, were well acquainted with French ; and it was in this language that they com municated with one another, whether in social inter course or in the discussions of the Tribunal. Thus, we had before us a Tribunal, the members of which did not either of them make use of his own language in their common business ; but met, all of them, on the neutral ground ^f the common diplomatic lan guage of Europe. In this connection it was that the United States enjoyed their first advantage. Our Government did not need to wait until the organization of the Tribu nal to know in what language its proceedings would be conducted ; and, in prevision of this fact, it ordered the American "Case" to be translated frorfi the En-. glish into French, so as to be presented simultaneous ly in both languages at the meeting of the Tribu nal:, the exigency for which was not anticipated, or, if anticipated, was not provided for, by the Brit ish Government. The. American " Case " and, documents are contain-. ed in eight volumes octavo, which consist in all of ALABAMA CLAIMS. 29 5442 pages, as reduced to a common standard, that of the printing by Congress. The British " Case " and documents fill, in the re print by Congress, three volumes octavo, consisting of 2823 pages. Perusal of the American and British Cases, and of their accompanying documents on both sides, brings us to consideration of the peculiarities in the course of argument and tria;l prescribed by the Treaty, In effect, the United States were the plaintiffs, and Great Britain the defendant, in a suit at law, to be tried, it is true, before a special tribunal, and deter mined by conventional rules, but not the less a suit at law for the recovery of damages in reparation of alleged injuries. In common course, the plaintiff's counsel would open his case and put in his evidence ; the defendant's counsel would then open the defense and put in de fensive proofs; and, after the close of the. testimony on both sides, the defendant's counsel would argue in close for the defense, and then the plaintiff's counsel in final close for the plaintiff. Here, on the contrary, the defendant's opening argu ment and defensive proofs went in at the same time as the plaintiff's opening argument and proofs, each under the name of the "Case" of the respective Party, The. British Case, of course, could not answer the American Case, save by conjecture and anticipation founded on common knowledge of the subject-matter. The respective Counter-Cases of the Parties were .to go in together, in like manner, in April, and their 30 THE TREATY OF WASHINGTON. resDective Arguments in June : so that the Counter- Cases would on each side be response to the previous Cases, and the Arguments to the previous Counter- Cases, This course of presentation was in no sort prejudi cial to the United States, as plaintiffs, and was exceed ingly advantageous to Great^ritain, as defendant, THE AMERICAN CASE. Nevertheless, when our " Case " went in, — that is to say, the opening argument for the United States, — its true character as such was misapprehended in En gland, where it seemed to be forgotten thg,t the time and place for replying to it were in the British Coun ter-Case, and not in the newspapers of London or in the British Parliament, Similar misconception occurred subsequently with regard to the American Argument ; the Counsel for Great Britain thinking that he ought to have the op portunity of replying, as will be explained hereafter, and losing sight of the fact that the British Govern ment had already argued fhe ., matter three times . in. '' Case," " Counter-Case," and " Argument," As to the American Case, it seemed to fall into the adversary's camp like a bomb-shell, which rendered every body dumb fot a month, and then produced an explosion of clamor, which did not cease for three or four months, and until the final decision of this Tribunal of Arbitration, The leading journals of England, whether daily or weekly, such. as the London Times, Telegraph, and ALABAMA CLAIMS. 31 News, the Saturday Eeview, the Spectator, the Pall Mall Gazette, the Manchester Guardian, and other British journals generally, are certainly conducted with great ability, and are second, in character and in value, to no others in Europe, In view of which it must be confessed that. the outcry which they made against the American Case seemed to me at the time to be altogether unworthy of them and of England, It was my opinion on reading the American Case for the first time, and is my opinion now, after re peated readings, that it is not only a document of signal ability, learning, and forensic force, — which, in deed, every body admits, — but that it is also temper ate in 'language and dignified in spirit, as becomes any state paper which. is issued in the name of the United States, I do not mean to say that it is so cold a document as the British Case, Warmth or coldness of color is a matter of taste, in respect of which the United States have no call to criticise Great Britain, and Great Brit ain has no right to criticise the United States, We may presume that, in the exercise of its un questionable right, the Government of the United States made up its Case in the aim of convincing the Arbitrators, and not. with any dominant purpose or special expectation 'of pleasing Great Britain, But there is no just cause of exception to the gen eral tenor, spirit, or style of the American Case, Its facts are pertinent ; its reasonings are cogent ; its con clusions are logical: and in all that is the true ex; planation of the emotion it occasioned in England, '32 THE TREATY OF WASHINGTON. ^Intelligent people there, on reading the American Case, then opened their eyes universally to the fact that Great Britain was about to be tried before a high court constituted by three neutral Governments, That was not an agreeable subject of reflection. In telligent Englishmen also, on reading the American Case, began to be uneasily conscious of the strength of the cause of the United States, And that was not an agreeable subject of reflection. For a good cause, in a good court, seemed likely to result in a gre^t in ternational judgment adverse to. England. The specific objections preferred were quite futile. Thus, complaint was made because the Case charged the British Ministers with unfriendliness to -the United States for a certain- period of the Civil War. But the charge was proved by citing the declarations of those Ministers ; it was not, and could not be de nied by any candid Englishman ; . it is admitted by Sir Alexander Cockburn , in the dissenting qpinion which he filed at the close of the Arbitration. And the charge was pertinent, because it explained the negligent acts of subordinate British authorities, as at Liverpool or Nassau : which acts could not be otherwise explained unless by suggesting a worse imputation, namely, that of hostile insincerity on the part of the Ministers. If there be any person at the present daj?^, who is inclined to call in question the truth of the foregoing remarks, he is earnestly entreated to read the Amer ican Case now, in the light of the adjudged guilt of the British Government, and he will then see ample ALABAMA CLAIMS. 33 cause to approve the reason, the dignity, and the tem per of that Case. EXPLANATION OF OBJECTIONS TO THE AMERICAN CASE. The truth undoubtedly is, that discontent with the Treaty itself had much to do in England with objec tions to the " Case." The British Ministers had ne gotiated the Treaty in perfect good faith, and in well- founded conviction of its wisdom, of the justice of its provisions, and- of its not conflicting with the honor either of Gj-eat Britain or of the United States. Par liament had accepted the Treaty without serious op position, and with but little debate, except on the very trivial party question whether it was more or less favorable to Great Britain than the conventions negotiated by Lord Stanley and the Earl of Claren don. And Great Britain, as a nation, had, beyond all peradventure, heartily approved and welcomed the conclusion of the Treaty. But, on reading the American Case, and reflecting on the constitution of the proposed Tribunal, many Englishmen yielded to a sentiment of undue estimate oi English law and English lawyers, as. distinguished from the laws and the lawyers of Continental Europe and of Spanish and Portuguese America. England has good reason to be proud of her legal institutions and of her jurists, and, of late years, she has learned to regard the common law with some abatement of i]i&i fetichism of devotion which was taught by Coke and by Fortescue. But the statesmen appointed by the three neutral Governments to act as Arbitrators C 34 THE TREATY OF WASHINGTON. at Geneva, and who, it was clearly seen, would be the effective judges in the cause, were not likely to share the English opinion of the common law of England. And these three Arbitrators were persons outside of the range of the observation, knowledge, or apprecia tion of most Englishmen, who felt undefined distrust of men whom they did not and could not know as they knew Englishmen and Americans. Nay, En glishmen were heard to say, in conversation, that they would prefer a tribunal made up of Englishmen and Americans. We shall fully comprehend how strong this sentiment was among average Englishmen, when we remember that expression was given to it in the House of Lords by the Marquess of Salisbury, who^ notwithstanding his high intelligence, and the cos-: mopolitan experience which men of his rank possess, could characterize as unTcnown, and, therefore, as ob jectionable, an actual Embassador in France, an ex-. President of Switzerland, and a Senator and ex-Min ister of Italy with fame as a jurist S,nd historian per vading Europe. It was a sentiment which Sir Alex ander Cockburn betrayed in his deportment and language at several meetings of the Tribunal. These, however, were but the transitory incidents of popular emotion and public discussion, and of sec ondary significance. AGITiLTION RESPECTING THE NATIONAL CLAIMS. But the agitation which soon followed, on the sub ject of certain of the claims set forth in the Case of the United States, arose at once to national impor- ALABAMA CLAIMS. 35 tance. I allude, of course, to what was frequently spoken of as the question of "indirect claims." The .expression is incorrect, and, if admissible as a popular designation, it must not be permitted to pro duce any misconception of the true question at issue. It would be less inaccurate to speak of them as " claims for indirect or constructive losses or damages," which is the more common phrase in the diplomatic papers ; and less inaccurate still to say " remote or consequen tial losses and damages." But, in truth, none of these expressions are correct, and the use of them has done much to obscure the actual point of controversy, and to divert the public mind into devious paths of argu ment or conclusion. When, in the instructions to Mr. Motley of Septem ber 25th, 1869, President Grant caused the British Government to be informed, through the Secretary of State, of the nature of the grievances of the United States, he employed the following language : "The President il not yet prepared to pronounce on the question of the indemnities which he thinks due by Great Britain to individual citizens of the United States for the de struction of their property by rebel cruisers fitted out in the ports of Great Britain. " Nor is he now prepared to speak of the reparation which he thinks due by the British Government for the larger ac count of the vast national injuries it has inflicted on the United States. " Nor does he attempt now to measure the relative effect of the various causes of injury, whether by untimely recognition of belligerency, by sufiering the fitting out of rebel cruisers, or by the supply of^hips, arms, and munitions of war to the Con federates, or otherwise, in whatsoever manner. 36 THE TREATY OF WASHINGTON. " Nor does it fall within the scope of this dispatch to discuss the important changes in the rules of public law, the desirable ness of which has been demonstrated by the incidents of the last few years, now under consideration, and which, in view of the maritime prominence of Great Britain and the United States, it would befit them to mature and propose to the other States of Christendom. "All these are subjects of future consideration, which, when the time for action shall arrive, the President will consider with sincere and earnest desire that all differences between the two nations may be adjusted amicably and compatibly with the honor of each, and to the promotion of future concord between them; to which end he will spare no effort within the range of his supreme duty to the right and interests of the United States." The British Government was in this way distinctly notified that, in addition to the question of indemni ties to individual citizens for the destruction of their property, the United States were entitled to repara tion " for the larger account of the vast national in juries" inflicted on them as a Government. That the British Government so understood the matter is proved by the tenor of the elaborate respon sive paper, styled " Observations," appended to Lord Clarendon's dispatch to Sir Edward Thornton of the ensuing November ; and our national claims are spe cifically commented on in those " Observations." It is immaterial how these national losses came afterward to be designated by the title of construct ive or indirect ; yet such is the fact. Now, it is perfectly clear that national claims are not claims for indirect or constructive ioss, any more than individual clainfs are. In fact, throughout the ALABAMA CLAIMS. 37 legal discussions before the Tribunal, the British Gov ernment steadily maintained that all the claims of in dividual citizens for the destruction of their vessels by Confederate cruisers were in the nature of con structive, indirect, remote, and consequential injuries or losses, and, therefore, not recoverable in law, either by the rules of the common law of England or of the , civil law as practiced on the Continent. Nothing could more clearly, show the inapplicability and equivocation of the phrase "indirect" claims or losses to designate any of the contents of the Treaty of Washington. Manifestly, while private losses are supposable which may be direct to individual citizens, national losses are supposable which may be direct to the na tion. On the other hand, private losses are supposa ble as well' as national, which any jurist or any court would pronounce to be indirect, remote, or consequen tial in their nature. All the discussion on this question asserts or ad mits impliedly that the capture of a private mer chant's vessel by a Confederate cruiser inflicted direct loss or* damage on the citizen-proprietor. Was not the loss or damage occasioned by the capture of a Government vessel equally a case of direct loss to the Government ? Most assuredly. Pursue the inquiry one step further. If, in a war carried on by land between two States, one of them invades the other and devastates the territory there of, is not that a case of direct injury to the invaded State ? If the hostilities in question be purely mari- 38 * THE TREATY OF WASHINGTON. time, as in the example of the imperfect or quasi war between the United States and France in the closing years of the last century, can it be denied that the injuries done to either nation by such hostilities on the sea involve direct national as well as private injuries? On first impression, therefore, it might seem that the British Government and British opinion ran wild in the chase of shadows, and combated a creature of mere imagination in quarreling with this part of the American Case at all, and, still more, in contending that on this account Great" Britain could be justified in revoking the" arbitration agreed upon, — that is, in effect, violating the Treaty, ~~ The Treaty referred to the Tribunal of Arbitration, in terms unequivocal, all claims of the United States growing out of the acts committed by certain vessels, and generically Tcnown as "Alabama Olaiins." It might need to go outside of the Treaty into antece dent or contemporaneous diplomatic correspondence in order to ascertain thfe meaning of the phrase "Ala bama Claims ;" but, in so d-oing, it would incontro- vertibly appear, at every stage of such correspond ence, that tiational as well as individual claims were comprehended, and were all confounded together, and, indeed, without mention of individual claims, in the designation of " claims on the part of the United States," Whether any of the claims so preferred on the part of the United States were for losses indirect or conse quential would be an ordinary question of jurispru- ALABAMA CLAIMS. i 39 dence, for the decision of the Tribunal of Arbitration^^ and could not be a question affecting the integrity or force of the Treaty, No expression or even intimation_ofthe question of " direct or imlirgct^^jNppRars nTi t.hft fn.f-ft of the Treaty And, in the long diplomatic correspondence which ensued on this subject, it was conclusively demon strated by Mr, Fish, and was, in effect, admitted by Lord Granville, that no agreement, promise, or under standing existed on the part of the, Commissioners to qualify the clear and explicit language of the Treaty, CAUSE OF THIS AGITATION. Hence we might well infer or believe that the su perficial or apparent question, which so agitated peo ple of high intelligence and practical seftise like the English, was not the real or true one. It was not. And, in order to understand the causes of the storm of discussion which broke over England when the tenor of the American Case came to be fully appre hended there, and of the real consternation which seemed to prevail on the subject, it is necessary to take into consideration certain facts wholly independ ent of the American Case and the Treaty, <^ On occasion of the rejection by the United States of the Johnson-Clarendon Treaty, with Mr. Sumner's speech as a commentary on that act, England came distinctly to comprehend, what she had been fre quently told before but would not believe, that the United States attributed the prolongation of our Civ il War largely to her premature recognition of the 40 THE TREATY OF WASHINGTON. 'belligerence of the Confederates, and to the conse quent facility of the latter to obtain supplies ; and also, though less so, yet in an appreciable degree, to the naval warfare which the Confederates carried on against us from the basis of operations of the ports of Great Britain, "" -Careful perusal of the instructions to Mr; Motley would have shown that the President of the United States, while persisting to claim reparation for all in juries done by Confederate cruisers, whether to indi viduals or to the nation, did not insist on the recog nition of belligerence as a continuing subject of claim of Great Britain, Conscious of this distinction, while the American Commissioners would not relinquish claim on account of any thing done by Confederate cruisers, the British Commissioners were content with stipulations of in demnity, which covered all national claims of the last category, but did not reach back to claims on account of the unreasonableness and prematurity of the proc lamation of the Queen. That is what is meant by Mr. Bernard in his lect ure at Oxford, where he speaks of the specific char acter of the stipulations : they were specific, confined to acts of the Confederate cruisers. And the point is clearly evolved in the debate in the House of Lords on occasion of the presentation of the Treaty, when Lord Eussell objected that it was no better for Great Britain than the Johnson-Clarendon Treaty, and Lord Granville replied that it was better, because, while it includes claims on account of acts of cruisers, it does ALABAMA CLAIMS. 41 not include claims on account of the Queen's proclama- ' tion recognizing the belligerence of the Confederates. -Nevertheless, when, in England, the argument of -^he American Case had been read and pondered, — whenjtjwasj)erceived that this argument imputed to GreatBritain constructive complicity with the Con- federsteB" by' reason ofthe culpable negligence of the British 'Government to arrest the enterprises of such vesselTarsTh^^.SxSama, the Florida, and the Shenan doah, — and, finally, when it was thus understood that, in preferring claim for all the loss or injury growing out of the acts of those cruisers, whether to the Gov ernment or to private citizens, the United State8_did, in express terms as well as in legal intendment, hold the British Government responsible for prolongation of""our CiviirWarandJhe cost of its proggcntioTi, — when all these relations of the subject came to be un derstood, the public mind in England, and especially the commercial mind, recurred at once to the event which constituted at the time the dominant pre-occu- pation of Europe, namely, the war indemnity of_six milliards so recentlyimposeCbyLGermany on France. In view of this, a panic terror seemed to seize upon London, similar to what occasionally occurs in New York and other great money centres, producing a state of demonstrative emotion, which, to calm ob servers outside of such centres, looks like the spas modic agitation of men who have lost their senses, rather than intelligent human action. Such, indeed, is all panic terror, as exemplified by numerous his torical incidents of the contagious influence, both in 42 THE TREATY OF WASHINGTON. peace and war, of the most trivial causes and the most absurd illusions. On the present occasion, London appears to have been shaken and tossed by the intense fear of Great Britain being in turn called upon to pay some indefi nite milliards of war indemnity to the United States. DISCUSSION BETWEEN THE TWO GOVERNMENTS. The British Government was very slow to take this infection of popular fear and commotion. The American Case was duly filed on the 15th of Decem ber. Many copies of it were in the hands of the British Ministers in a few days thereafter. We do not hear of any particular disturbance of mind on the part of the Ministers until the beginning of Feb- ruary, thaTis, the lapse~oi' six or seven weeks, when -the^American Minister, General Schenck, telegraphed to Mr. Fishas follows: ^^London journals ^\ dema,nd T!iarihe~United Statesshall withdraw'claims for in- 'Hirect damages, as not within intentionjof treaty. liinistry^mmedP To~which Mr. J^ish responded byTelegraph as follows: "There must be no with drawal of any part of the claini presented. Counsel -Will argue the case as preparedTunless they show to this Gd'vernment reasons for^^aTcfecngBr The^iilarm youT speak of does iiot~~reachr~ui; We are perfectly calm^iaudr'coiitent to await the award, ah J^o noTan feipatgTepu"dTationrofthe Treaty by the otherjide." And in these two telegrams we have the history of — the whole interval of time prior to the next meeting of the Tribunal. Newspapers in England lashed ALABAMA CLAIMS. 43 themselves into a "fine frenzy." Ministers and the Parliament, instead of manfully taking a stand at the outset in opposition to the popular current of delu sion and passion, got alarmed and lost their heads, and said and did some things not creditable to the British Government. In the United States, on the other hand, sundry persons were officiously over-zeal ous on the wrong side ; the newspaper press was a little flustered ; and some things were written and published which it would have been better not to write and publish ; but the public mind maintained its equilibrium, content, on the whole, to await the progress of the arbitration : while the President, the Secretary of State, with his colleagues of the Cabinet, and the Congress, remained " perfectly calm," stand ing always on the, stipulations of the Treaty, and never believing it would be broken or disregarded by Great Britain. In my opinion, the contrast at this time between the attitude of the British Government and that of the American Government deserves a few words of commentary. It is not uncommon in England to suppose and to say that demagogy, that is, factious appeal to popular prejudice and passion, is a conspicuous feature of political action in the United States. It seems to be supposed also that demagogy here pleases itself especially with accusations of Great Britain. Mean while, it is complacently assumed that self possession and stability, with unexceptional amiability' toward the United States, characterize political action in 44 THE TREATY OF WASHINGTON. Great Britain. I think the absolute reverse of all this is the truth. In Great Britain the political institutions of the country are indefinite, unwritten, unfixed, without a positive stand-point any where, shifting from day to day ; consisting, in form, of Kings, Lords, and Com mons, without any visible lines of limitation between them, and resolved to-day into an omnipotent Parlia ment, one branch of which, the House of Commons, arrogates to itself the character of a constituent na tional convention to impose on King and Lords any change in the national institutions it sees fit, and as suming to itself the function, by means of a quMsi committee of its body, to control absolutely the ad ministration, both foreign and domestic, of Great Britain. This quasi committee of the House of Commons, to be sure, has associated with it another quasi com mittee of the House of Lords: which, all together, formerly called Ministers of the Crown, now take to themselves, in the very text of treaties as well as in domestic affairs, the revolutionary title of the " Brit ish Government." But, while the theoretical power of the Crown is nominally exercised by a joint committee of both Houses of Parliament, it is vested, in fact, in the com mittee of the House of Commons, which, upon all oc casions, whether of ordinary administrative matters or of the frequently recurring radical changes in the political institutions of the country, constantly and loudly defies and overbears the House of Lords. ALABAMA CLAIMS. 45 If any simple-minded person in the United States happens to cherish those romantic illusions respect ing the constitution of England which he may have acquired from perusal of the Commentaries of Sir William Blackstone, he has but to turn over the leaves of some volume of Hansard's Debates in Par liament, or peruse authoritative disquisitions on the subject, like those of May and of Bagehot, to discover that, in knowledge and reading at least, he has not yet emerged from the mythical epoch of the political history of England. Now, the submergence of the power of the Crown in Parliament, and of that of Parliament in the House of Commons, and the commitment of all these powers to transitory nominees of the House of Commons, are facts which, combined, have produced the result that government in England is at the mercy of every gust of popular passion, every storm of misdirected' public opinion, every devious impulse of demagogic agita tion, — nothing correspondent to which exists in the United States. Mr. Gladstone is Prime Minister of Great Britain, — that is to say, of three hundred millions of men, ag gregated into various States of Europe, Africa, Amer ica,' Asia, and Australasia. But'he holds all this pow er at the mere will of a majority ofthe House of Com mons. He must consult their wishes and their prej udices in every act of his political life. If he con ceives a great idea, he can not make any thing of it until after he shall have driven it into the heads of three or four hundred country gentlemen, which are 46 THE TREATY OF WASHINGTON. not always easily ^e?/(9ra3^e either by eloquence or by reason. And during the progress of all great measures, including especially foreign negotiations, which require to be left undisturbed in their prog ress fi'om germination to maturity, he is subject to be goaded almost to madness every day by vicious in terpellations, not only on the part of members of the Opposition, but even his own supporters in the House of Commons. How different is the spectacle of government in. the United States ! Here, the President, — that is, the Prime Minister of , the sovereign people, — is placed in power for a fixed period of time, during which he is politically independent of faction, and can look at the temporary passions of the hour with calmness, so as to judge them at their true value, and accept or reject their voice according to the dictates of public duty and the command of his conscience. Neither, he nor any of the members of his Cabinet are subject to be badgered by factious or unreasonable personal inter rogation in either house of Congress. Moreover, the House of Eepresentatives does not presume to set itself up as the superior either of the President or of the Senate. Nor is the Senate in the condition of being terrified from the discharge of its duty by threats on the part of the President or of the House of Eepresentatives to subjugate its free will at any moment by thrusting into it a batch of twenty new administration Senators. Least of all does the House of Eepresentatives presume to possess and ex^ ercise the powers of a constituent national convention, ALABAMA CLAIMS. 47 to change in its discretion the constitution of the United States. Thus it was that, in the matter of the. discussion of this Treaty, Mr. Gladstone and the other Ministers were tossed to and fro on the surging waves of pub lic opinion, and pestered from day to day in Parlia ment, while solicitously engaged in reflecting how best to keep faith with the United States and at the same time do no prejudice to Great Britain. If, at that period, the Ministers said in debate any thing unwise, any thing not strictly true or just, — Mr. Glad stone did, but Lord Granville did not, — let it not be remembered against -them personally, but charged to the uncontrollable difficulties of their position, and the signal defectiveness and intrinsic weakness of the or ganic institutions of Great Britain. During all that period of earnest discussion on both sides of the ocean, it was to me, as an American, matter of the highest thankfulness and gratulation and patriotic pride, to see the Government of the United States, — President, Secretary of State, Cabinet, Congress, — continue in the even tenor of their public duty, calm, unruffled, self possessed, as the stars in heaven. The Executive of the United States is, it is tfue, by its very nature, a thoughtful and self con tained power. Congress, on the other hand, is the field of debate and the place where popular passions come into evidence, as the winds in the cave of -^olus. But, on . this occasion, no more debate occurred in either House than that least possible expression of opinion, which was necessary to show accord with the 48 THE TREATY OF WASHINGTON. Executive. Even the Opposition, to its honor be it said, conducted itself with commendable reserve and consideration. How different from all this was the spectacle exhibited by the British Parliament! ENGLISH MISCONCEPTION OF AMERICAN SENTIMENT. I contradict, with equal positiveness, the suggestion that demagogic agitation in the United States feeds itself largely on alleged hatred of Great Britain. I think topics of international reproach are more com mon in England than here. The steady current of emigration from England, Scotland, and Ireland to the United States, and especially at the present time from England, is not a grateful subject of contempla tion in Great Britain. England perceives, but not with perfect contentedness, that the British race in America bids fair soon to exceed in numbers and in power the British race in Europe. And, above all, the gradually increasing force of those factions or parties in Great Britain, M^hich demand progressive enlargement of the basis of suffrage, equal distribu tion of representation, vote by ballot, the separation of Church and State, subdivision of the great prop erties in land, cessation of hereditaiy judicial and po litical power, intellectual and social elevation of the disinherited classes,— I say such parties or factions, in appealing to the institutions of the United States as a model, provoke criticism of those institutions on the part of the' existing depositaries of property and p6lit- ical power. Owing to these, and other causes which might be indicated, it seems to me that the United ALABAMA .CLAIMS. 49 States encounter more criticism in Great Britain than Great Britain does in the United States. Moreover, it should be borne in mind that much of the inculpation of Great Britain which is perceived in the United States proceeds from British immigrants, — largely Irish, but in part Scottish and English, — who, like other Europeans, are but ,too prone to come here with all their native political prejudices clinging to them ; who not seldom- hate the Government of their native land; and who, of course, need time to cease to be Europeans in spirit and to become simply Amer icans. And it would not be without interest in this relation to see how many of such persons, in the news paper press or elsewhere, say or do things tending to cause it to' be supposed that opinion in the United States is hostile to Great Britain. There is one other class of facts which it is proper to state in this relation, and particularly proper for me to state. The successful revolution of the thirteen Colonies was an event most unacceptable, of course, to England. We, the victors" in that contest, should not murmur if resentful memories thereof lingered for some time in the breasts of the defeated party,. I think, however, such feelings have ceased to manifest themselves in England, It is to quite other causes,.in my opinion, that we are to attribute the successive controversies between the two countries, in which, as it seems to me, the greater wrong has in each case been on the side of. England, I think we did not afford her suffi cient cause of complaint for continuing in hostile oc- D 50 THE TREATY OF WASHINGTON. cupation of the Northwestern Territory for so many years after we had made peace, I think she was ¦wrong in issuing the notorious Orders in Council, and in the visitation of our ships and impressment of our seamen, which morally constrained us, after exhaust ing all other means of redress, to have recourse to war, I think she was -vva'ong in contending that that war extinguished the rights of coast fishery assured to us by the Treaty of Independence, I think she was wrong in the controversy, on the subject of colo nial trade, which attained so much prominence during the Presidency of John Quincy Adams, I think she was wrong in attempting to set up the fictitious Mos quito Kingdom in Central America, I think she was wrong in the so-called. San Juan Question, And so of other subjects of difference between the two Gov ernments. Now, it has happened to me, in the course of a long public life, to be called on to deal officially; either in Congress, in the Cabinet, or at the Bar, with many of these points of controversy between the -Kvo. Govern ments, of which it suffices to mention for example three, namely : 1, the Question of British Enlistments ; 2, the Hudson's Bay Company; and 3, the Alabama Claims. In regard to the first of these questions, the United States, and the persons who administered the Govern ment, were so cleariy right that, although the British Government, in its Case, improvidently brought into controversy, at Geneva, by way of counter-accusation, the general conduct of the United States during the ALABAMA CLAIMS. 51 war between Great Britain and Eussia, and although we replied by charging in response that the only vio lations of neutrality committed in the United States during that war were committed by Great Britain herself, yet in the subsequent discussions not a word of self -justification on this point was preferred by the British Governm.ent. In regard to the second of the questions, a member of Parliament [Mr. Hughes], in ignorance of the fact^, it is to be presumed, undertook to impugn the con duct of the Counsel of the United States, and to draw inferences therefrom prejudicial to the conduct of the United States in the Arbitration at Geneva. In re sponse to this complaint, it suffices to say that, on oc casion of a settlement of the claims of the Hudson's Bay Company and of its shadow, the Puget's Sound Agricultural Company, by mixed commission, under the treaty of July, 1863, it devolved on me, in behalf of the United States, to assert, and to prove to the satisfaction of the Commission, that the pretensions of. the Hudson's Bay Company were scandalously un just, and founded on premises of exaggeration and usurpation injurious to Great Britain and to the Ca- nadiajU Dominion, as well as to the United States. I have no reason to regret or qualify any thing said or done by me in that affair. As to the third of these questions, namely, the Ala bama Claims, it seems difficult to comprehend how persistent demand of redress on the part ofthe United States can be complained of by. any candid English-, man tww, when the judgment of the Tribunal of Arr 62 THE TREATY OF WASHINGTON. bitration establishes the fact of the long denial of jus tice by Great Britain in this behalf,— a fact admitted also by so prejudiced a person as Sir Alexander Cock burn, who speaks as ["in some sense" at least] "the representative of Great Britain." I confidently maintain, therefore, that neither the British Government nor the people of Great Britain had any just cause, in the course of these transactions, to find fault with the spirit, temper, or language either of the Government or the Agent or Counsel of the United States. To the contrary of this, it seems to me that on our side alone is the good cause of com plaint in these respects. ATTITUDE OF THE AMERICAN GOVERNMENT. As respects the deportment of the two Governmsnts in this crisis, certain it is that the conduct of that of Great Britain, in resting upon the American Case for nearly seven weeks, and then abruptly breaking out, in the Queen's speech from the throne and in debate in Parliament, with objections to that Case, without previous statement thereof in diplomatic communica tion, was uncourteous toward the United States. The diplomatic discussion which ensued, beginning with Lord Granville's note of February 3, 1872, and terminating with the dispatch of Mr. Fish of April 16, 1872, may now be read, not with composure only, but with supreme satisfaction, Iby any citizen of the United States. The Secretary of State [Mr. Fish] demon strates to conviction the utter baselessness ofthe pre tension of the ©ritish Government that the so-called ALABAMA CLAIMS. 53 indirect claims were not within the letter or spirit of the Treaty of Washington. And he repels through out, peremptorily but dispassionately, the call of the British Government on the United States to withdraw this class of claims from the consideration of the Tri- bui^d. In fine, the position of the United States is plainly expressed in diffetent parts of the dispatches of Mr. Fish, as follows : " They [the United States] desire to maintain the jurisdiction of the Tribunal of Arbitration over all the unsettled claims, in order that, being judicially decided, and the questions of law involved therein being adjudicated, all questions connected with or arising out of the Alabama Claims, or ' growing out of the acts' ofthe cruisers, may be forever removed from the pos sibility of disturbing the perfect harmony of xelations between the two countries. , , , "What the rights, duties, and true interests of both the con tending nations, and of all- nations, demand shall be the extent, and the measure of liability and damages under the Treaty, is a matter for the supreme determination of the Tribunal estab lished thereby. " Should that august Tribunal decide that a State is not War ble for the indirect or consequential results of an accidental or unintentional violation of its neutral obligations, the United States will unhesitatingly accept the decision. " Should it, on the other hand, decide that Great Britain is liable to this Government for such consequential, results, they have that full faith in British observance of its engagements to expect a compliance with the judgment of the Tribunal, which a solemn Treaty between the two Powers has created in order to remove and adjust all complaints and claims on the part of the United States." / The American Government could not avoid feeling that the public discussion, which the British Minis ters had seen fit to excite, or, at any rate, to aggravate, 54 THE TREATY OF WASHINGTON. and; "the discourteous tone and minatory intimations of the Ministry," imposed on the United States a dif ferent line of action from that, which might have been adopted by them in response to a calm presentation by.'the British Government of its construction of the Treaty, In this relation there is another class of facts which, as it seems to me, deserves mention. Of the five American Commissioners engaged in the negotiation of the Treaty of Washington, two, the Secretary of State [Mr, Fish] and our Minister at London [General Schenck], were officially occu pied in discussing the question on the American Case raised by the British Government, The published dispatches show with what signal ability they dis charged this delicate duty. Meanwhile, the three other Commissioners, Mr, Justice Nelson, Mr, Hoar, and Mr. Williams, although impliedly accused on the other side of taking some advantage of the unsophis ticated innocence and simplicity of the British Com missioners, yet maintained perfect self control in the matter, speaking only when officially called upon to speak, and otherwise leaving the subject where it be longed, — in the hands of their Government. The conduct, on the other hand, of some of the British Commissioners was less reserved than that of the American Commissioners. Professor Bernard got completely off the track of reason and sense in a lect ure vvhich he delivered at Oxford. Sir Stafford Nofthcote let off a very inconsiderate speech at Ex eter. And Sir Edward Thornton made a not very ALABAMA CLAIMS. 55 considerate one at New York. But Earl de Grey and Eipon, who had now become Marquess of Eipon, deported himself with admirable dignity. It was, in deed, wittily said, or reported to have been said, by Mr. Lowe, that Lord Eipon was going about very sick at the stomach of a marquisate, which he would be glad to throw up ; but the reproach was wholly un deserved. Lord Eipon manfully maintained silence while to speak would have been unwise; when at length it became expedient to speak, he did so with discretion and with judiciousness, beyond what ap peared in the speeches of some other members of the Government. •' ACTION OF THE AMERICAN AGENT AND COUNSEL. Whilst all these discussions were going on in Great Britain aid the United States, we, the Agent and Counsel of the United States, were busily occupied, partly at Washington but chiefly at Paris, in the study of the British Case and the preparation of the American Counter-Case. We had fixed oh Paris for our head-quarters, as a neutral city, as a great centre of international jurisprudence and diplomacy, and as a place in easy communication with London and with Washington. From this ground of vantage we could observe and estimate correctly the current of discussion in America", in Great Britain, and on the Continent of Europe. Speaking, for myself, at least, let me say, it appear ed to me that much of what was being said in En- 56 THE TREATY OF WASHINGTON. gland, whether in Pai^liament or in the Press, was un seasonable or indiscreet; much of it factious toward the British Government itself; much of it disrespect ful to the American Government ; but none of it of any ultimate importance or consequence in regard to either Government, for the following reasons : 1. Both Governments sincerely desired peace. Great Britain could never have retreated from the Arbitra tion in violation of the Treaty, whatever the Press might say, and whoever should be in power as Min ister. 2. Freedom of debate is essential to freedom of in stitutions. To be sure, the Press in- Great Britain, and somewhat, but less so, in the United States, is prone to take upon itself rather lofty airs, and to speak of public affairs quite absolutely, as if it were the Government. But nobody is deceived by this, not even the Press itself We, the English-speaking nations, thank heaven, possess the capability of living in the atmosphere of oral and written debate. It was safe to pfedict that howmuchsoever Mr. Gladstone and Lord Granville might feel annoyed by the din of words around them, it would not induce them to break faith with the United States. 3. It was not the voice of the Ejfiglish Press which could seriously affect us. We looked rather to the state of opinion in the French, German, and Italian speaking countries of Europe, which, on the whole, though differing as to the legal right of the United States to recover on the na,tional claims, yet decisive ly agreed with ys in affirming that those claims were ALABAMA CLAIMS. 57 comprehended within the scope ofthe Treaty as main tained by the United States. , What Europe dreaded, what all European opinion sought to prevent,- was a rupture between Great Brit ain and the United States, to disturb the money- market of Europe, and impede the payment by France of the indemnity due to Germany. And all men saw that the United States must and would resent the refusal by Great Britain to observe the stipulations of the Treaty of Washington. PRESENTATION OF COUNTER-CASES. Such were the circumstances, in the presence of which arrived the time, namely, the 15th of April, at which the two Governments were to file at Geneva their respective Counter-Cases. The British Government was so solicitous to fulfill on its part all the stipulations of the Treaty, that it caused special inquiry to be made -R^hether the Amer ican Government had any objection to Great Brit ain filing her Counter-Case without prejudice to her position regarding consequential damages; to which Mr. Fish replied that the British Government was bound to file its Counter-Case, but its doing so would not prejudice any position it had taken, nor affect any position of the United States. Accordingly, on the 15th of April, the Counter- Cases of Great Britain and the United States were duly filed, with express reservation of all the rights of both Governments, The British Counter-Case, consisting of four vol- 58 THE TREATY OF WASHINGTON." umes folio, contains little new matter, being in part, at least, defensive argument in response to the A.mer- ican " Case." The American Counter-Case, consisting of two volumes folio', replies argumentatively to the British " Case," and brings forward a large body of docu mentary proofs, responsive to matters contained in that "Case," which, although utterly foreign to the question at issue, required to be met, because con sidered material by Great Britain, namely, allegations of default on the part of the United States in the execution of their own neutrality laws, to the preju dice of other Governments, ¦ . ¦ ¦ The introduction of all this matter into the British Case, the iteration of it in the British Counter-Case and the British Argument, and the extreme promi nence given to -it, as we shall hereafter see, by the British Arbitrator, serve to illustrate the singular unreasonableness and injustice of the angry com plaints emitted in England against the American Case, ^ The American Case contains no suggestion which is not strictly pertinent to the issues raised by the Treaty, It discusses the conduct ofthe British Gov ernment i-elativfely to the United States during our Civil War, with strict application to the "Alabama Claims," It charges that, in those transactions,' the British Government was guilty of culpable omission to observe the requirements of the law of nations as respects the United States, an.d with responsible neg ligence in the non-execution of the neutrality laws of ALABAMA CLAIMS. 59 Great Britain. That was the very question present ed by -the Treaty. Great Britain professed to be so much offended by the character of certain of the proofs adduced in the American Case, — rigorously pertinent to the question as all those proofs were, — that she would not suffer any appropriate answer to those proofs to be brought forward in her Counter-Case or in her Argument : it was not compatible with self-respect, — it "would be giving dignity to undignified arguments,— we were told by the British Press. Meanwhile, the very mat ter which the British Government could not conde scend to ^notice was both material and important to such a degree as very much to inflame the temper and exercise the ingenuity of Sir Alexander Cockburn, the "representative" of Great Britain at Geneva. Now, the American Case, if conceived in any other spirit than that of just and fair exposition ofthe pre- 'cise issue, — question, that is, whether the British Gov ernment had or had not incurred responsibility for its want of due diligence in the matter of Confederate cruisers fitted out in the ports of Great Britain, — I say, if the American Government, in the preparation of its Case, had not been animated by the spirit of perfect fairness and justness, it might have gone into the inquiry of the political conduct of Great Britain in other times, and Avith reference to other nations, in the view of imputing to her hahitual disregard ofthe law of nations in illustration of her present conduct toward the United States, We might have charged that, while her statesmen contend that they could do 60 THE TEEATY OF WASHINGTON. nothing outside of an Act of Parliarnent, they, had no such Act until 1819, and were therefore, prior to that time, .confessedly impotent, and we might have added willfully so, to observe the duties of neutrality ; we might have scrutinized her national history to select . conspicuous examples of her acts of violence, in dis regard of the law of nations, against numerous States, including ourselves; we might have appealed to ev ery volume of international law in existence, from the time of Grotius to this day, and cited page after page to the conclusion of the unjust international policy of Great Britain ; and we might have argued from all this to infer intentional omission of the British Gov ernment to prevent the escape of the Alabama and the Florida. But such arguments, you will say, would have been forced, remote, of doubtful relevance, and of a nature offensive to England. Be it so : they would, if you please, have been irrelevant, impertinent, offensive. And no such arguments are found in the American Case. But such are the arguments which pervade the British Case, Counter- Case, and Argument, and the opinions of the British member of the Tribunal. In stead of defending its own conduct in the matter at issue, the British Government travels out of the record to find fault with the conduct of the United States at other times, and with respect to other na tions. It presumes to take upon itself the function of personating Spain, Portugal, Nicaragua, and to drag before the Tribunal at Geneva controversies between ALABAMA CLAIMS. 61 US and other States, with which that Tribunal had. no possible concern, — ^which it could not pretend to judge,^-and.of such obvious irrelevancy and imperti nence that not one of the Arbitrators condescended to notice them except Sir Alexander Cockburn, The presentation in the British Case of considera tions of this order, worthless and absurd as argu ment, and wantonly offensive to the United States, was, in my judgment, an outrageous act, compared with which, in possible susceptibility of blame, there is nothing to be found in any of the affirmative doc uments presented by the American Government, It was the cause of a singularly perverse incident, namely, complaint of the British Press against the American Argument for imputed unkindness in al luding to subjects, which had been forced upon our attention by the British Case, I mention these circumstances for the purpose of showing how relatively unjust it was to impute of fensiveness of spirit and language to the American Case in vieyy of the much more objectionable things in the British Case ; and for the further purpose of pertinently stating that it was undignified for Great Britain to complain ofthe manner in which the Agent or Counsel of the United States might see fit to ar gue our cause, as it would be for the American Gov ernment to undertake to prescribe limits of discre tion in this respect to the Agent or Counsel of Great Britain, Thus, the 15th of April, looked forward to with so much apparent dread by the British , Government, 62 THE TEEATY OF WASHINGTON. passed away, leaving the great question unsettled, in what manner ultimately to deal with the claim for national losses preferred by the United States. . NEGOTIATIONS FOR A SUPPLEMENTAL TEEATY. A new series of events then happened, which occu pied the period intervening between the 15th of April and the 15th of June, It occurred, to the two Governments that the diffi culty might be disposed of by the exchange of diplo matic notes, which, in laying down a definite rule of reciprocal international right on the subject of such losses, should reserve or leave unimpaired the present pretensions of both Governments, The British Gov ernment would not admit that it was the intentioii of the Treaty to cover national losses ; the United States insisted that it was, and refused to do any act incompatible with this construction pf the Treaty; and, therefore, they would not withdraw any part of the American Case, nor disavow the opinion that it was within the province ofthe Arbitrators'to consid er, all the claims, and to determine the liability. of Great Britain for all the claims, which had been put forward by the United States. But the American Government had not asked for pecuniary damages in its "Case" on account of that part ofthe claims called, the indirect losses; it only desired a judgment there on, which would remove them for all future time as a' , cause of difference between the two* Governm^ts, To hold that this class of claims was not disposed of by the Treaty,— that is, was not a subject for the con- ALABAMA CLAIMS. 63 sideration of the Tribunal of Arbitration, — was to infer that they remained open and unadjusted, and suscep tible of being hereafter brought forward anew by the United States as an object of reclamation against Great Britain. One great inducement to the Treaty would thus be defeated, namely, the establishment of perfect concord and peace. In view of which it was thought expedient to endeavor to adjiist the present dispute by informal stipulations on the part of the two Governments. This well-intentioned effort failed, because of the persistent contention of the British Government that the Treaty excluded from the Arbitration the claims for national losses advanced by the United States. Further reflection on the subject satisfied the Amer ican Government that nothing short of a new treaty could dispose of the question on the premises of the pending negotiation, it being clear that the President of the United States could not of himself withdraw claims which were in his opinion justified by the Treaty, of Washington. Thereupon the President requested of the Senate an expression of their disposition in regard to advis ing and consenting to the formal adoption of an arti cle of treaty proposed by the British Government, to the effect of stipulating that he would make no claim on the part of the United States in respect of the so- called indirect losses before the Tribunal of Arbitra tion, in , consideration of an agreement between the two. Governments, the essence of which was set forth in a preamble to the effect that ¦ 64 THE TEEATY OF WASHINGTON. • " Such indirect claims as those for national losses stated in the Case presented on the part ofthe Government of the United States . . . should not be admitted in principle as growing out of the acts committed by particular vessels, alleged to have been enabled to commit depredations on the shipping of a bel ligerent by reason of such want of due diligence in the per formance of neutral obligations as that which is imputed by the United States to Great Britain :" which proposed agreement the preamble proceeds to state, in the form of two separate declarations, — one by Great Britain and one by the United States, — ¦ each of them intelligible only by reference to pre vious parts of the preamble : the whole to the con clusion that the President shall make no claim, on the part of the United States, in respect of the indi rect claims as aforesaid, before the Tribunal of Arbi tration at Geneva. The Senate, thinking that the recitals in the pre amble were not sufficiently explicit to furnish to the United States satisfactory basis of transaction,. pro posed the following substitute : " Whereas both Governments adopt for the future the prin ciple that claims for remote or indirect losses. should not be admitted as the result of failure to observe neutral obligations, so far as to declare that it will hereafter guide the conduct of both Governments in their relations with each other. Now, thierefore," etc. - But the Senate's redaction of the article rendered its meaning too clear to be agreeable to the British Government, which, as was shrewdly said of it in Paris at the time, doubted whether release from .claim of reparation for the present wrong done by Great ALABAMA CLAIMS. 65 Britain to the United States might not be purchased too dearly by conceding to the United States, in con sideration thereof,. indefinite and unlimited exemption from responsibility for wrongs of the same nature to be inflicted in all future time by the United States on Great Britain. Further interchange of dispatches on this subject followed, the British Government insisting on modifi cation of the terms of arrangement proposed by the Sena:^. But Congress had now adjourned. The 15th of June was impending, on which day the United States must of necessity present their final argument or lose their hold on the Treaty. If, at the commencement ofthe difficulty, the British Government had proposed to the American Government to agree to postpone the proceedings of the Tribunal and take time for negotiation in the usual way, a new treaty might have been concluded as contemplated by the twd' Governments. Such a treaty, requiring careful con sideration of phraseology, with discussion and expla nations regarding the same, could not be concluded in haste by means of telegraphic communication be tween London and Washington. The spectacle exhibited by the two Governments at this time was one of profound interest to the whole world. They were inspired by friendly sentiments on each side. They differed in regard to the construction of a treaty which neither desired to break. Diplo matic correspondence had failed to bring them into concord of opinion. They endeavored to reconcile E 66 THE TREATY OF WASHINGTON. this difference by supplemental treaty. Only a few weeks remained in which to negotiate ;¦ and the parties were separated by thousands of miles of ocean. It was necessary, therefore, to negotiate, if at all, by telegraph, — an operation quite as novel as had been that of conducting the business of government in France by means of pigeons or balloons during the siege of Paris. But, before it was possible for the parties to conclude a treaty by telegraph, the fatal day arrived, greatly to the embarrassment ^ the British Government. PRESENTATION OF ARGUMENTS FOR THE UNITED STATES. For the course of the United States in this exigen cy was plain before them: it was to present their final Argument to the Tribunal of Arbitration, in con formity with their own conception of their rights, just as if there were no controversy on the point between «them and Great Britain. . ¦ The President of the United States was immova bly fixed in the purpose not to withdraw the coni;ro- verted claims, nor to abstain from making claim be fore the Tribunal in respect to the so-called indirect losses, except in consideration of a new treaty regard ing the same, satisfactory to himself and to the Senate of the United States. In a dispatch of the Secretary of State to the Min ister at London, of the 28th of May, 1872, the induce ment a,nd object of the United States, in persisting to retain these claims before the Tribunal, are summa rily stated as follows : , ALABAMA CLAIMS. 67 1. "The right under the Treaty to present them. 2. " To have them disposed of and removed from further con troversy. 3. "To obtain a decision either for or against the liability of a neutral for claims of that description. 4. " If the liabiUty of a neutral for such claims is admitted in the future, then to insist on payment by Great Britain for those of the past. 5. " Having a case against Great Britain to have the same principle applied to it that may in the future be invoked against the United States." Of these considerations, the last four, it is obvious, are the complete justification of the insertion of our national claims in the Treaty and of their presenta tion in the " Case." Hence the duty of the Agent and Counsel of the United States, having charge of the judicial investi gation pending before the Tribunal of Arbitration, remained the same in the interval between December 15th, 1871, and June 15th, 1872, whatever diplomatic discussions or negotiations might be going on between the two Governments. Our instructions were defi nite and peremptory, as the British Government well understood, to prepare the Counter-Case for the Unit ed States, and the final Argument, on the premises of the Treaty as construed by the United States and as explained in the American Case. Our Counter- Case was prepared accordingly, as already stated, and filed in English and in French before the Tribunal. And in like manner we prepared our final Argument. This Argument, consisting of an octavo volume of 495 pages, after discussing fully the various questions of fact and of law involved in the submission to arbi-. 68 THE TREATY OF WASHINGTON. tration, proceeds to examine the particular clainis, na tional as well as individual, — to maintain the jurisdic tion of the Tribunal over both classes of claims,— and to .argue the nature and degree of the responsibility of Great Britain to the United States in the premises. In fine, the Argument is co-extensive with the " Case." We repaired to Geneva in due time, and at the meeting of the Tribunal on the 15th we presented our Argument as required by the Treaty, and, for the better information of the Tribunal, in French as well as in English. That is to say, the Government of the United States, through. the means of its official Agent, complied with that last command of the Trea ty of Washington, in virtue of which the Tribunal of Arbitration became formally seized and possessed of all our claims, national as well as private, precisely as if no controversy on the subject existed between the two Governments. The United States were in condi tion to invoke the judgment of the Tribunal, whether Great Britain appeared or not ; for Counsel had am ple authority of legal doctrine at hand to show that the Tribunal would have power to act even in the absence of Great Britain. In the anticipation of this contingency, the British Government requested that of the United States to concur in making a joint application to the Tribunal for an, adjournment of eight months, in order to afford to the two Governments sufficient, time for further negotiation.. Mr. Fish replied that the grovernment of the United States had no reason to desire such ad- j.ou.rnment, although the Government intended,' -and ALABAMA CLAIMS. qq instructed its Agent, to^^ assent to a motion for ad journment on the part of Great Britain, provided the British Argument were filed in good faith, without offensive notice, or other objectionable accompani ment. Thus it became necessary for the British Govern ment to decide for itself how to act in the premises. The course 'b.dopted by it was to withhold its Argu ment, and to file a statement, setting forth the recent negotiations for the solution of the difficulty between the two Governments, and the hope that, if time were afforded, such a solution might be found practicable ; and thereupon to move an adjournment of eight months, with reserve of all rights in the event of an agreement not being finally arrived at, as expressed in the note which accompanied the British Counter-Case. DECISION OF THE AEBITEATORS RESPECTING NATIONAL LOSSES. These acts having been performed, the Arbitrators adjourned, first to the 1 7th; and then to the 19th of June, in order to afford time for reflection to them selves and to the two Governments. It will be taken for granted that in the interval be tween the 15th and the 19th of June communications by telegraph passed between the respective Agents and their Governments, and consultations took place between the Counsel of both sides and the respective Agents, either orally or in writing, and, with more or less formality, among the Arbitrators, the result of which was anno'unced by Count Sclopis as follows: 70 THE TREATY OF WASHINGTON. " The Arbitrators do not pronose to express or imply any opinion upon the point thus in difference between the two Governments as to the interpretation or effect of the Treaty, but it seems to them obvious that the substantial object of the adjournment must be to give the two Governments an op^ portunity of determining whether the claims in question shall or shall not be submitted to the decision of the Arbitrators, and that any difference between the two Governments on this point may make the adjournment unproductive of any useful effect, and, after a delay of many months, duriflg which both nations may be kept in a state of painful suspense, may end in a result which it is to be presumed both Governments would equally deplore, that of making this arbitration wholly abor tive. This being so, the Arbitrators think it right to state that, after the most careful perusal of all that has been urged on the part ofthe Government ofthe United States in respect of these claims, they have arrived, individually and collective ly, at the conclusion that these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations ; and should, upon such princi ples, be wholly excluded from the consideration of the Tribu nal in making its award, even if there were no disagreement between the two Governments as to the competency of the Tribunal to decide thereon. With a view to the settlement of the other claims, to the consideration of which by the Tri bunal no exception has been taken on the part of Her Britan nic Majesty's Government, the Arbitrators have thought it de sirable to lay before the parties this expression of the views they have formed upon the question of public law involved, in order that, after this declaration by the Tribunal, it may be considered by the Government of the United States whether any course can be adopted respecting the first - mentioned claims which would relieve the Tribunal from the necessity of deciding upon the present application of Her Britannic Maj esty's Government." Count Sclopis added that it was the intention of the Tribunal that this statement should b*e cbnsid- ALABAMA CLAIMS. 71 ered for the present to be confidential, — that is, sub ject to the discretion of either of the two Govern ments. But what is the " question of public law involved ?" Is it the question of claim for indirect or consequen tial damages, as argued by the British Government ? By no means. Observe, no suggestion of any distinction between direct and indirect claims is to be found in the decla ration of the Arbitrators. And their declaration can not be explained by reference to any such order of ideas. The significant words are: "These claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations." Why do they not? Because they are indirect? Because they are consequential ? No such objection is intimated. But although, in making this declaration, a mere conclusion of mind, the Arbitrators abstained at the time from assigning any reasons for such conclusion, yet they supplied this omission subsequently, as we shall plainly see when we come to review the ensem ble of all the acts of the Tribunal. We shall then be able to appreciate the importance and value of 'this declaration to the United States. The Counsel of the United States advised the ac ceptance of this declaration by the Governnient, as follows : 72 THE TREATY OF WASHINGTON. " We are of opinion that the announcement this day made by the Tribunal must be received by the United States as de terminative of its judgment on the question of public law in volved, as to which the United States have insisted on taking the opinion of the Tribunal. We advise, therefore, tbat it should be submitted to, as precluding the propriety of further insisting upon the claims covered by this declaration of the Tribunal, and that the United States, with a view of maintain ing the due course of the arbitration on the other claims with out adjournment, should»announce to the Tribunal that the said claims covered by its opinion will not be further insisted upon before the Tribunal by the United States, and may be excluded from all consideration by the Tribunal in making its award." In response, the' Secretary of State communicated the determination of the President, as follows: "I have laid your telegrams before the President, who di rects me to say that he accepts the declaration of the Tribunal as its judgment upon a question of public law, which he had felt that the interests of both Governments required should be decided, and for the determination of which he had felt it important to present the claims referred to for the purpose of taking the opinion of the Tribunal. "This is the attainment of an end which this Government had in view in the putting forth of tho.se claims. We had no desire for a pecuniary award, but desired an expression by the tribunal as to the liability of a neutral for claims of that char acter. The President, therefore, further accepts the opinion and advice of the Counsel as set forth above, and authorizes ^ the announcement to the Tribunal that he accepts their decla ration as determinative of their judgment upon the important question of public law as to which he had felt it his duty to seek* the expression of their opinion ; and that, in accordance with such judgment and opinion, from henceforth he regards the claims set forth in the Case presented on the part of the United States for loss in the transfer of the American commer cial marine to the British flag, the enhanced payment of insur ance, and the prolongation of the war, and the addition of 3 ALABAMA CLAIMS. 73 large sum* to the cost of the war and the suppression of the Eebellion, as adjudicated and disposed of; and that, consequent ly, they will not be further insisted upon before the Tribunal by the United States, but are henceforth excluded from its con sideration by the Tribunal in making its award." This conclusion was announced to the Tribunal by the Agent of the United States on the 25th of June in the following words : "The declaration made by the Tribunal, individually and collectively, respecting the claims presented b'y the United States for the award of the Tribunal for, first, the losses in the transfer of the American commercial marine to the British flag ; second, the enhanced payment of insurance ; and, third, the pro- longatLon of the war, and the addition of a large sum to the cost of the wai' and the suppression ofthe Rebellion, is accepted by the President of the United States as determinative of their judgment upon the important question of public law involved." On the 27th, the British Agent announced the ac quiescence of his Government in this arrangement, withdrew his motion of adjournment, and filed the British Argument. And in this manner the controversy, which for so many months had engrossed the attention of the two Governments, was finally disposed of as the Govern ment of the United States had constantly contended ^it should be [unless otherwise settled by treaty], — that is, by the declarati5n of the judgment or opinion of the Arbitrators, in such form as to constitute, in effect, a rule of law, morally binding on Great Britain and the United States. The President of the Tribunal, Count Sclopis, then proceeded to pronounce an appropriate and well- written discourse, expressing satisfaction at the re- 74 THE TEEATY OF WASHINGTON. inoval of all obstacles to the free action of fhe Tribu- ¦ nal, and commenting on the political relations of the Treaty of Washington, preparatory to the considera tion of the other questions submitted to the Arbitra tors. SEAT OF THE ARBITRATION. And here, before proceeding to explain" and to dis cuss the subsequent acts of the Tribunal, it seems convenient to pause, in order to speak of the scene of action and of the Tribunal, to which the eyes of all nations were attracted, and especially those of the people of England and of America. It was most fit and proper to select Switzerland as the country, and Geneva as the city, in which to hold the sessions of the Tribunal. In fact, Switzerland, at the same time that it is the land of hospitality, inviting the frequentation of all the world by its picturesque scenery, the beauty and sublimity of its lakes and mountains, is also the land of neutrality par excellence. No other country pos sesses in the same degree these qualities conjoined. In no other country was it possible to avoid all in- vidit)us local suspicion, and to be exempt from any possible political influence foreign to the objects of the Arbitration. The selection was peculiarly agreeable to the United States, by reason of the. striking similarity between our institutions and those of Switzerland, Both Governments cultivate a policy of international neutrality : the one, by reason of its isolation and re- ALABAMA CLAIMS. 75 moteness from the Old World, and the other because of its geographical position in the midst of the great military Powers of Europe, .Both Governments are federal; and Switzerland, not content with those modifications of her system of government adopted in the year 1848, which did so much to assimilate her political organization to that of the United States, now manifests the purpose to amend that Constitution so as to make it still more like to ours. In both countries the force of pul?lic life pervades society like the blood in the human system, so that every citizen is an active member of the Eepublic, Hence it is impossible to an intelligent American to avoid entertaining warm sympathy for the Swiss Confederation, Geneva is a cosmopolitan city, — situated in the very heart of Europe, — distinguished for the intelli gence of its inhabitants and their love of liberty. It is city, in respect. of the commodities of life: it is country, in so far as regards the locality and the sur rounding natural objects, La^e Leman, the Jura, and the Alps, The Federal Government, as well as' that of the Canton of Geneva, appreciated the honor of being the seat of this great international Tribunal, and did not fail to welcome most cordially the two Governments, their Agents and their Counsel, by conspicuous .mani festations of political as well as of personal considera tion. The Cantonal Government at Geneva hastened to provide suitable accommodations for the Tribunal in the Hotel de Ville of that city; it afforded to the mem- 76 THE TREATY OF WASHINGTON. bers of the Tribunal and to the representatives of the two Governments access to numerous official, exhibii tions and entertainments ; and, at a suitable time, it made for us a special festival at Geneva, as the Fed eral Government did at Interlaken and at Berne. Switzerland, and Geneva especially, looking at the several acts of arbitration provided by the Treaty of Washington as constituting great steps in the prog ress of public peace, welcomed us the more heartily because of the recent organization there of a society, whose objects are defined by its title of " Comite In ternational de Secours aux Militaires Blesses." This society had acquired universal respect by its acts of disinterested philanthropy in the late war between Gerniany and France. Its symbol of the red cross had been the harbinger of relief to many a suffering victim of battle. It was organized under the Pres idency of that General Dufour who, in 1847, had led to victory the forces of Switzerland against the Seces sion [Sonderbund] Cantons. And men could not fail to note the coincidence, when they saw this great Tribunal of Arbitration organized under the auspices ofthe victorious commander of our ovvn Union forces [General Grant], as the International Commission for the Succor of the Wounded had been under the auspices of the veteran General Dufour. It was im pressive to see the greatest Generals of the two coun tries laboring to diminish the chances and lighten the evils of war. The Tribunal of Arbitration occupied the same hall in the Hotel de Ville which had just before been oc- ALABAMA CLAIMS. 77 cupied by the Society for the Succor ofthe Wounded : a room of moderate dimensions, but adequate to the purpose, fitted up with elegance and good taste, not, however, specially for the Commission or Tribunal, but for ordinary uses of the City or Canton, indicated by its title " Salle des Conferences." The Hotel de Ville is a structure in the Florentine style of architecture,, situated on the summit ofthe old Geneva, and which is occupied both by munic ipal officers of the City and by the executive and leg islative authorities of the Canton. COUNT FREDERIC SCLOPIS. Here, then, m the "Salle des Conferences" of the Hotel de Ville, at Geneva, the Tribunal assembled to listen to the opening discourse ofthe President, Count Sclopis, and to take up the business remaining for the consideration of the Arbitrators. ¦ Count Sclopis, in this discourse, expressed belief that the meeting of the Tribunal indicated of itself the impression of new direction on the public policy of*nations the most advanced in civilization, and the commencement of an epoch in which the spirit of moderation and the sentiment of equity were begin ning to prevail over the tendency of the old routines of arbitrary violence or culpable indifference. He signified regret that the pacific views of the Congress of Paris had not been seconded by events in Europe. He congratulated the world that the statesmen who directed the destinies of Great Britain and the United States, -with rare firmness of conviction and devotion 78 THE TREATY OF WASHINGTON. to the interests of humanity, resisting all temptation's of vulgar ambition, had magnanimously and coura geously traversed in peace the difficulties which had divided them both before and since the conclusion of the Treaty. He quoted approvingly the ©pinion ex pressed by Mr. Gladstone, on the one hand, and by President Washington, on the other, in commendation of the policy of peace, of justice, and of honor in the conduct of nations. And he proclaimed in behalf of his colleagues, as well as of himself, the purpose of the Tribunal, acting sometimes with the large percep tion of statesmen, sometimes with the scrutinizing eye of judges, and always with a profound sentiment of equity and with absolute impartiality, thus to dis charge its high duty of pacification as well as of jus tice to the two Governments. The discourse was worthy of the occasion and of the man. Count Frederic Sclopis of Salerano, Minister of State and Senator of the new Kingdom of Italy, has attained the ripe age of seventy-four years in the as siduous cultivation of letters, and in the discharge 'of ,the highest political and judicial functions. The countryman and the friend of Count Cavour, it was his fortune to co-operate in the task of the unification of Italy under the leadership of the House of Savoy, ' "This great military House, with its enterprising, ambitious, and politic instincts, second in fortune only to the Habsburgs and the ZoUerns, rose in the elev enth century, on the ruins of the Burgundians, to the possession of the passes of the Valaisian, Cottian, and ALABAMA CLAIMS. 79 • Graian Alps, and of the Gallic territory on both shores of Lake Leman, and at length to the possession of extensive Italian territories, denominated Piedmont by relation to the Alps and the Apennines, the nucleus of the present Kingdom of Italy, It needs to conceive and picture to the mind's eye the Alpine cradle of this adventurous and martial, but cultivated race of Italianized Savoisian princes, nobles, and people, — the fertile, but ravaged valleys of the Ehone, the Arve, the Albarine, the Arc, and the two Doras ; the castellated heights of L'Ecluse, Mont- melian, and La Brunnetta ;. the vine-clad hill-sides and the lofty cols dominated by the giant peaks of Mont Blanc and Monte Eosa ; the sepulchral monuments of Haute-Combe and of Brou, and the rich plains along the Italian foot of the Alps, — in order to comprehend the growth to greatness of sovereigns such as Vittorio Emaiuuele, supported by such generals as Menabrea and Cialdini, and statesmen and magistrates such as Azeglio, Balbo, Sclopis, and especially Cavour, Like his compatriot, the Marquis d' Azeglio, Count Sclopis is eminent as an author. Of his published writings, some are in French, such as " Marie Louise Gabrielle de Savoie " and " Cardinal Morone." But his most important works are in Italian ; and above all, the learned " Storia della Legislazione Italiana," the last edition of which, in five volumes, is a most in teresting and instructive exhibition of the successive stages of the mediseval and modern legislation of all the different States of Italy, Such Avas the eminent personage who presided over 80 THE TREATY OF WASHINGTON. and conducted the deliberations of the Tribunal, and who represented and spoke for it on ceremonial occa sions : a man of large stature and dignified presence ; of the high breeding of rank, but without pretensive- ness ; cordial and kindly in social intercourse ; the impersonation, as it were, of the intellect and the cul ture of Continental Europe. MR. STJEMPFLL Sitting by the right hand of Count Sclopis, as next to him in precedence, not by reason of age,— rfor he was the youngest member of the Tribunal, — but as representing the local Government, Switzerland, was Mr. James [or, in German, Jacob] Stsempfli: a genu ine representative of democratic institutions, — sprung from the people, — the son of his own works, — clear headed, strong-minded, firm-hearted, — somewhat posi tive, — not prone to talk except when talk was of the essence of things, and then briefly and to the point, — in a word, a man of the very stuff out of which to make Presidents of Federal Eepublics. Mr. Staempfli is a German Swiss of the Canton of Berne, who has risen from the humblest to the highest condition in his country by mere force of intellect and indomitable will. Born in 1820, admitted to^the Bar in 1843, he came forward at once as an advocate, and as a journalist of radical opinions, and speedily at tained distinction. In 1846 we find, him a conspicu ous member of the Council of State, directing the finances, and laboring to organize a central military force. In 1847 he represented the Canton of Berne ALABAMA CLAIMS. 81 in the Diet, and was active in asserting the rights of the Federation against the. seceding States of the Sonderbund. He served in that war as Treasurer and Paymaster-General of the Army. Displaced for a, while, he' resumed the practice of his profession as advocate, but soon returned to power, in 1851, as Pres ident of the National Council, where he continued to be distinguished as a close reasoner and incisive speak er, full of intelligence and of resources, supported by great energy of character. In 1856, he was elected President of the Confederation, and again in 1859, and the third time in 1862 : these repeated but in terrupted re-elections illustrating the Swiss Constitu tion, according to which the President is elected for one, year only, and can not be re-elected for the next succeeding year, but is otherwise re-eligible without limitation. Events of great importance to Switzer land occurred in the years of the administration of Mr. Stsempfli ; among others, the separation of Neii- chAtel from Prussia, the war in Italy, and the annexion of Savoy to France. > His theory of executive action was characteristic of the man, namely, " When peril is certain, it is better to advance to meet it, rather than timidly to await its approach." In fine, prepa- ration^and decision are the distinctive traits of all the official acts of Mr. Stsempfli. There is one peculiarity in the political character of Mr, Stsempfli, which belongs to him, indeed, as a Swiss, ' namely, definiteness and affirmativeness in the matter of international neutrality and morality, Switzerland no longer permits capitulations of for- F 82 THE TREATY OF WASHINGTON. eign enlistment : they are expressly forbidden by the Federal Constitution, Her la-ws punish as a crime all violation by individuals of the international rights of foreign Powers. Her neutrality is active, not pas sive, — preventive, as well as punitive. She has no maritime relations, it is true ; but, in dealing with un lawful equipments or expeditions by land, she ob serves rules of neutrality which are applicable, in -the ory and practice, equally to equipments or expedi tions, for naval warfare. Our own temporary act of 1838, which comprehends vehicles [on land] and ves sels [on Avater] in the same clause of criminality, af fords complete answer to those Englishmen who have superficially assumed that because Switzerland is not a maritime Power,, she [or a statesman of hers] could not competently judge the case of the Alabama or the Florida. Diligence to execute the law,---vigilance to prevent its violation,- — is the same in Switzerland as in Italy or Brazil, in Great Britain or the United States. And the position of Switzerland, which re quires of her the spontaneous execution of her neu trality laws,- had evident effect on the mind of Mr. Stsempfli to produce, those conclusions of his against Great Britain, which, as we shall see in the sequel, were .so grossly misapprehended and so angrily re sented by Sir Alexander Cockburn. At the time when the Swiss Government' invited Mr,; Stsempfli to act as Arbitrator for Switzerland under the Treaty of Washington, he had full occupar tion in. public or private affairs as a member of the National Council and as President of the Federal ALABAMA CLAIMS. 83 (Eidgenossische) Bank established at Berne, On receiving the respective " Counter-Cases" of the two Governments, which in effect closed the proofs on both sides, he took a characteristic step in order to be prepared for action in June. As you sail up the Lake of Thun toward Unter- seen or Interlaken, you note on the left the precipi tous wooded mountain-side of Beatenberg. Here, high up in a rural hamlet, hidden among the trees, with the beautiful lakes of Thun and Brienz at his feet, and the magnificent spectacle of the Oberland, terminating at the remoter Berner Alps,— in those balmy Alpine days when spring is passing into sum mer^ and all earth is a paradise of verdure and of anir mation, — here Mr. Stsempfli secluded himself from the social distractions and cares of business at Berne, and dedicated himself to the mastery of the " Alabama Claims." In such a blessed retreat even law-bo.oks might lose their dullness, and diplomatic correspond ence, depositions, and legal pleadings be invested with the charmed reflection of the naatchless scenery of lakes, fields, hamlets, cities, mountains, and rivers, glittering in the sun, and resting in the horizon at the snow-crowned heights of the Jungfrau. And so it seems to have been. For good St. Bea- tus blessed the mountain labors of Mr. Stsempfli, and he came to Geneva in due time with full abstracts of evidence and elaborately written . opinions on the main questions g,t issue before the Tribunal, to the ap parent surprise of Sir Alexander Cockburn, who, con fidently relying on the rupture of th.e Arbitration,. as 84 THE TREATY OF WASHINGTON. he himself avowed, had not yet begun to examine the cause, and seemed to suppose that every body else ought to be as neglectfully ignorant of it as himself: which sentiment betrayed itself on various occasions in the sittings of the Tribunal. VISCOUNT OF ITAJUBA. On the left of Count Sclopis sat the Arbitrator named by the Emperor of Brazil, the Viscount of Itajubd. The people of the United States do not seem to be generally- aware how much of high cultivation, es pecially [but not exclusively] in the departments of diplomacy and jurisprudence, exists in those countries of America which were colonized by Spain and Por tugal. Nevertheless, on careful consideration of the sterling merits of such historical writers as the Mexi can Lucas Alaman, — such authors of international ju risprudence as the Chilean Bello, the Argentine Calvo, or the Peruvian Pando, — such writers of belles-lettres, of travels, or of statistics, as the Colombians Samper and Perez,— such poets as the Brazilian Magalhaens, — such codes of municipal law as those of the States of Cundinamarca and of Mexico or of the Argentine Confederation, and of other Eepublics of Spanish America, — we should be compelled to admit that lit erature and science are not confined to our part of the New World. _ And, among all these new Powers of America, there is -not one more deserving of respect, — Empire and not Eepublic though it be, — than Brazil, in view of ALABAMA CLAIMS. 85 the magnitude of its territory, the greatness of its re sources, its military strength and successes, its enlight ened and reforming chief ruler, the substantial liber ality of its political institutions, and the unbroken domestic tranquillity of its independent life, so strik ingly in contrast with the revolutionary agitations of most of the Spanish- American Eepublics. Marcos Antonio d'Araujo belongs to that numer ous body of jurists and statesmen, the natural growth of parliamentary institutions based on popular elec tion, who do honor at the present time to Brazil. He filled in early life the chair of Professor of Jurispru dence in the University of Pernambuco. His first diplomatic appointment was that of Consul-General of Brazil in the Hanse Towns, with residence at Ham burg. After that he held successively the offices of Minister or Envoy at Hanover, at Copenhagen, at Berlin, and finally at Paris. At the time of his ap pointment as Arbitrator he was Envoy Extraordi nary and Minister Plenipotentiary of Brazil in France, by the title of Baron d'ltajuba, and he was made a Viscount during the progress of the Arbitration. With exception, therefore, of the judicial studies and occupations of his youth, the Viscount of Itajubd is a diplomatist, having passed nearly forty years of his life in the discharge of diplomatic functions in different countries of Europe. He possesses all the qualities of his career and station, namely, courteous and attractive manners, intelligence disciplined by long experience of men and affairs, instinctive appreciation of principles and facts, and the ready expression -of 86 THE TREATY OF WASHINGTON. thought in apt language, but without the tendency to run into the path of debate or exposition, which ap peared in the acts of some of his colleagues ofthe Tribunal of Arbitration. In comparing Mr. Stsempfli, with his deep-brown complexion, his piercing dark eyes, his jet black hair, his quick but suppressed manner, and the Viscount of Itajubd, with his fair complexion and his air of gentleness and affability, one, having no previous knowledge of their respective origins, would certainly attribute that of the former to tropical and passion ate America, and that of the latter to temperate and calm-blooded Europe.SIR ALEXANDER COCKBURN. On the extremes of the Board, Mr. Adams to the right and Sir Alexander Cockburn to the left, sat the American and British members of the Tribunal. Sir Alexander Cockburn represents a family of some distinction, the Cockburns of Langton, His father was British Minister in Colombia, and one of his uncles was that Admiral Sir George Cockburn, whose service in American waters during our last war with Great Britain has left some unpleasant traces or memories in the United States, His, mother seems to have been a French lady, being described by Biirke as " Yolande, dau. of Viscomte de Vignier of St, Domingo." He was born in 1802, called to the bar in 1829, became distinguished as a barrister, entered Parliament, and, after passing through the routine offices of Solicitor and Attorney General, was ALABAMA CLAIMS. 87 made Chief Justice of the Court of Common Pleas in 1856, and of. the Queen's Bench in 1859, which place he still fills. He presided for sixteen years in the common-law courts of England without being raised to the peer age. It is unnecessary to speculate on the reasons for this unusual, if not unprecedented fact. His political career dates from his zealous defense of Lord Palmerston in the affair of the notorious David Pacifico, This person -was an adventurer of doubtfal nationality and of bad character, in whose behalf the navy of Great Britain, under Lord Paliner- ston's direction, seized the Pirseus, captured Greek merchant- vessels, and threatened Athens, Th e ground of claim was alleged destruction of property by a mob. Pacifico claimed, according to the official, statement of the case by the British Government,' £4916 on ac count of furniture and other personal effects, which he originally stated at only 5000 francs, and £26,6l8 16s. 8d. on account of papers. It is very doubtful whether the claim was a proper subject of interna tional reclamation. But, after a, three months' block ade, Greece submitted to pay £5000, of which £4720 was either falsehood or consequential damages ; and afterward, on examination of the case in Lisbon, a commission awarded the petty sum of £150 in full satisfaction ofthe pretended loss of £26,6 18, induced perhaps by political reasons rather than by conviction of any rights of Pacifico. The conduct of Lord Palmerston and the British Government in this affair nearly involved Great Brit- 88 THE TREATY OF WASHINGTON. ain in a war with France and Eussia. The French Embassador retired from London to Paris for the purpose of personal communication on the subject with his Government. Count Nesselrode on behalf of Eussia remonstrated in a dispatch, which the Lon don Times characterized as reproachful, irrefutable, and just, and as profoundly affecting the peace of Eu rope and the dignity of Great Britain. The united voice of Europe and America has condemned the con duct of Great Britain in t-his affair. , The House of Lords closed an historic debate by a vote of censure of -the Government. , In the Commons, the last words of Sir Eobert Peel were raised in protest against this outrage on the rights of other nations; the morn ing dawned on a protracted session of the House before he recorded his, vote of condemnation ; in the afternoon of the same day he met. with the accident which closed his honorable life. Mr. Gladstone in the sanae debate said thatthe claim was "on the very face of it an outrageous fraud and falsehood;" that "it was mere falsehood and imposture," and that " a great er iniquity had rarely been transacted under the face ofthe sun." Sir Alexander Cockburn was then without parlia mentary distinction or political advancement. With the devotion of a Dalgetty, he placed his lance at the service of a chief, regardless of the merits of the cause. He was soon rewarded for his services by appointment to the office of Solicitor-General, from which' he' was promoted step by step, with unexam pled celerity, to 'his present position. ALABAMA CLAIMS. gg Since he became the head of the Queen's Bench he has occasionally appeared in the field of letters on questions connected with municipal or public law, but not in a way to invite respect at home, or attention beyond the limits of Great Britain. A few years ago he published a monogram on the subject of nationality, in which he reproduced in an abridged form [but quite incorrectly, as the remarks of a most competent judge, Mr, Beach Lawrence, on droit d'aubaine, tend to show], the matter contained in the report of a commission appointed by the Gov ernment to inquire into and report upon the laws of naturalization and allegiance in England, Again, when it was proposed to arraign Nelson and Brand as criminals in England for acts committed in Jamaica under proclamation of martial law. Sir Alex ander Cockburn delivered a voluminous charge to the grand jury, which he afterward published with addi tions and notes, notwithstanding the partiality and the urgency of which, the grand jury refused to find a bill; and it must be confessed that, as a charge, it was pas sionate, vague, declamatory, and confused ; and" as an exposition of law, it is valueless when compared with the treatises of Mr, Finlason, in England, and of Mr. Whiting, in America, on the same subject. This charge, and some proceedings by which it was followed, provoked' much criticism, Mr, Ga- thorne Hardy, for instance, called attention to the fact that the Chief Justice "vacillated," that he "went from one side to another," so as to render it doubtful what his opinions really were; and Mr, 90 THE TEEATY OF WASHINGTON. Hardy, as well as Mr, Mill, who spoke on the other side of the general question, said that the charge was "not law," and was " without legal authority," Mr, Finlason, a most competent authority, said that, " al though the charge dealt so largely in denunciation," it was " utterly indeterminate and indecisive ;" that "it avowed a state of entire doubt;" that, though " there was much denunciation of law laid down [by others], there was no positive declaration of law laid down by the Chief Justice," The same writer also points out grave mistakes of history as well as errors of law in this charge. Thus, the Chief Justice as sumes, as a cardinal thought, that martial law and military law are one and the same thing: a mistake, which implies extraordinary confusion of mind, for getfulness of his own official opinions- in the inci dents of the rebellion in Ceylon, and ignorance of the most commonplace events of English history, for instance, as detailed in Hallam and Macaulay, I allude to these criticisms for the reason that, as will appear in the sequel, the same singular intellect ual traits and moral characteristics of the Chief Jus tice, which became conspicuous at Geneva, had shown themselves on the Queen's Bench, and had attracted the notice of his fellow-countrymen, I refer to this charge for another cause. It is diffi cult for many reasons to measure the exact personal value of ordinary legal opinions delivered, in the course of adjudication, by any judge of the Queen's Bench. All such difficulties cease when he goes out of his way to deliver a demonstrative charge to a ALABAMA CLAIMS. 91 grand jury on one of the semi-political questions of the day, and especially when such charge is carefully revised for the Press, with additions and annotations by himself- Then we have the most satisfactory means of estimating the mental character of that judge. And such is the case here, to the effect of lowering greatly our estimation of the Chief Justice. A later incident in his judicial career also throws some light on his character, and deserves notice in this connection. When it was proposed to commence proceedings against Governor Eyre, growing out of what had been done in Jamaica under the same proclamation, Mr. Justice Blackburn delivered a charge to the grand jury, in the course of which he said: "As to the judges of my own court, the Lord Chief Justice, my brother Mellor, my brother Lush, and my broth er Hannen, . . . yesterday I stated to them the effect of what I am now stating to you, and they all ap proved of it, and authorized me to say,^of course, not relieving me from my responsibility, or absolutely binding them, for of course they have not considered it so thoroughly and judicially as I , have been obliged to do, — still they authorize me to say they agree in my view of the law, and thought it right." A week later, when the case had been entirely dis posed of, the Chief Justice, while sitting on the Bench, denied, with unseemly 'warmth of language and manner^ that he had assented to the law as laid down by Mr. Justice Blackburn ; but explained the alleged difference of opinion in such obscure Ian- 92 THE TREATY OP WASHINGTON. guage as to render it scarcely intelligible, Mr, Jus tice Blackburn replied, reiterating in temperate lan guage his statement that the Chief Justice had ex pressly assented to the legal doctrine of the charge, and his colleagues,' Justices Mellor, Lush, and Han nen, gave no support to the' denial made by the Chief Justice, The qualities of character exhibited in this inci dent were the occasion at the time of unfavorable commentary on the part of the British Press and public. Sir Alexander Cockburn had seemed, on superfi cial view, a fit person to take part in the important duties committed to the Tribunal of Arbitration, He carried thither the prestige of judicial rank, as the head of one of the most venerable courts of Europe, And he was thorough master of the language in which the discussions of the Tribunal were con ducted. But, unfortunately, it would seem that neither the original constitution of his mind, nor the studies, pur suits, or habits of his life, had fitted him for calm, im partial, judicial examination of great questions of public law. The same traits of confused thought, equivocation in matters of law, tendency to declama tory denunciation of adversary opinions, which pro voked and justified the criticisms of Mr. Finlason, Mr. Gathorne Hardy, and others, and which prompt-' ed conflict with Mr, Justice Blackburn, reappeared in more vivid colors at Geneva, Of the offensive singularities of his deportment as ALABAMA CLAIMS. 93 Arbitrator, we shall have but too much necessity to speak in describing the acts of the Tribunal. MR. CHARLES FRANCIS ADAMS. In the American Arbitrator, Mr. CharleS Francis Adams, the Tribunal had a member worthy of the companionship of Count Frederic Sclopis. In the United States, persons have been found so foolish as to reproach Mr, Adams because of the his torical eminence of his father and of his grandfather, and even because of the intelligence and cultivation of his sons : as if it were a crime in a Eepublic for a father to have a good son, or a son a good father, or to live in the holy atmosphere of a succession of wise and virtuous mothers. Besides, if it be meritorious to rise to distinction from loAvliness and poverty, it is not less so to resist and overcome the obstacles to personal distinction created by parental station or wealth. In this, Avhich is the only correct view of the subject, all men are self made. The attributes of Mr, Charles Francis Adams are his own : distinguished parliamentary ca reer in the Legislature of the State of Massachusetts and in the Congress of the' United States, — literary merits of a high order as displayed in his " Life and Writings of John Adams,"— able diplomatic repre sentation of his Government in Great Britain during the whole dark period of our Civil War, He pos sessed qualities, acquirements, and experience, general and special, which seemed to invite his appointment as American Arbitrator ; and in the discharge of the 94 THE TEEATY OF WASHINGTON. duties of the office he did honor to the Tribunal and to the United States. The deportment of Mr, Adams as a member of the Tribunal Avas unexceptionably dignified, manly, cour teous, even when compelled on more than one occa sion to notice rude acts or words of Sir Alpx,an,der Cockburn, While the conduct of the latter was too frequently on the comparatively low plane of the nisi prius attorney of a party before a court, the conduct of the former was uniformly on the higher one of a member of the court and a judge. Hence, in the same degree that the personal influence of Mr, Adams, by reason of his recognized impartiality and integrity, was beneficial to the United States, on the, other hand, the influence of Sir Alexander Cockburn, by reason of his petulant irritability and unjudicial partisanship of action, was unfavorable to Great Britain, Such, then, were the Arbitrators representing the five Governments, SECEETARY OF THE TRIBUNAL. Their Secretary, Mr. Alexandre Favrot, was a gen tlemanly person of literary attainments and profes sion, actually residing in Berne, but born in the French-speaking Canton of Neuch^tel, who had be come perfectly acquainted with the English language by a sojourn of several years in England,. AGENTS AND COUNSEL. . The Agents of the two Governments, Lord Tenter: den and Mr. Bancroft Davis, were peculiarly qualified ALABAMA CLAIMS. 95 for the places they filled, both of them having served in similar capacities in the foreign Department of their respective Governments, and both having assist ed in the negotiation of the Treaty of Washington. Their friendly personal relations were advantageous in facilitating the movement of business before the Arbitration. Mr. Bancroft Davis deserves particular mention. Englishmen may criticise the American " Case," the labor of preparing which devolved chiefly on him; but its indisputable merit should draw to him the applause of every American. His literary accom plishments, his previous diplomatic experience, his knowledge of men and things in Europe, and his de voted and untiring attention to the public interests, were singularly useful to the United States. Of the persons or qualities of the Counsel of the United States, Mr. Morrison E. Waite, Mr. William M. Evarts, and the writer of this exposition, it would be unbecoming, as it is quite superfluous, here to speak. In this relation, however, it is proper to call atten tion to two facts or incidents of national interest or concernment. In the first place, to the honor of the President of the United States be it said, in the selection of Coun sel by him, as for instance in the invitation to Mr. B. E. Curtis, considerations oi party were not alloAved to exert controlling authority. Secondly, the Counsel themselves emulated the catholic spirit of the President in subordinating all 96 THE TREATY OF WASHINGTON. personal considerations to the single object of win ning a great cause, the greatest ever committed to the charge of members of the Bar, and pending in the highest court ever organized, namely, the suit of -the United States against Great Britain before the Tribunal of Arbitration. Although diverse in their habits of mind, and in their lines of experience and action, they acted as a unit in the determination of advice to be given from time to time to the Govern ment or its Agent ; — in the preparation of the printed Argument required by the Treaty, a document of five hundred pages, to be signed by them jointly; — and in the subsequent preparation of a number of joint or separate Arguments in compliance with the require ments of the Arbitrators. We may appeal to those Arguments as the tangible proof, at any rate, of our concurrent and united dedication, during nine months of continuous and solicitous' thought or labor, to the discharge of our duty to our Government and our country, as Counsel under the Treaty of Washington. Sir Eoundell Palmer alone appeared before the Tribunal as eo nomine Counsel of Great Britain ; but Mr. Mountague Bernard, elevated to the office of a laAV-member of the Queen's Council, sat by his side at the Counsels' table, and also Mr. Cohen. The hand of the latter was apparent in the estimates and ex hibits presented to the Tribunal to guide them in the determination of the damages to be awarded to the United States. The recent promotion of Sir Eoundell Palmer to the pre-eminent post of Lord Chancellor, by the title ALABAMA CLAIMS. 97 of Lord Selborne, is the appropriate consummation of a professional and parliamentary career of distin guished ability and of unstained honor. . In conduct ing the deliberations of the House of Lords ; in pre siding over the High Court of Chancery ; in partic ipating in. the affairs of the Cabinet ; in guiding the conscience of the Queen through the embarrassments which now beset the English Church, we may be sure that Lord Selborne will join to the high authority of a skillful debater and a learned jurist the still higher authority of a sincerely conscientious statesman, so as to add incontestable force to Mr. Gladstone's Ministry. And all that authority, we may confidently assume, will be used in the promotion or maintenance* of amicable relations between Great Britain and the United States. This account of the personnel of the Arbitration would be imperfect without mention of the younger but estimable persons who constituted the staff of the formal representatives of the two Governments, namely: on the part of the United States, Mr. C. C. Beaman, as solicitor, and Messrs. Brooks Adams, John Davis, F.W.Hackett,W.F.Pedrick, and Edward T. Waite, as secretaries ; and on the part of Great Brit ain, in the latter capacity or as translators, Messrs. Sanderson, Markheim,Villiers,Langley, and Hamilton. If the labors of these gentlemen were less conspicuous than those of the Agents and Counsel, they were scarcely less indispensable; and they all deserve a place in the history of the Arbitration. A single observation will close up these personal G 98 THE TREATY OF WASHINGTON. sketches, and bring us to the consideration of the ul terior proceedings of the Tribunal. Occasionally, but not frequently, at the present day, we hear; in the United States ungracious suggestions touching the personal deportment of Englishmen. No such observations, it is certain, are justified by any ex perience of the city of Washington. The eminent persons, who, in the present generation, have repre sented the British Government here, whether in per manent or special missions, such as Sit Eichard Pack- enham. Lord Napier, Lord Lyons, Sir Frederick Bruce, and Sir Edward Thornton, of the former class, and Lord Ashburton, the Earl of Elgin, Earl De Grey, Sir Stafford Northcote, Mr. Mountague Bernard, Sir John A. Macdonald, and Lord Tenterden, of the latter class, with the younger persons of their respective suites, and so many others who have visited this city, were unmistakably and with good cause popular with the Americans. Indeed, it is rather in Continental Europe, and especially in France, and by no means in the United States, that overbearingness or un courteous deportment toAvard others is regarded as a trait of Englishmen. And it is agreeable to remember that, of the ten Englishmen with whom we of the United States came in daily contact at Geneva, and sometimes in circum stances of contentious attitude of a nature to produce coolness at least, all but one were uniformly and un exceptionably courteous in act and manner, — and that one Chief Justice of the Queen's Bench. Is a holder of the office of Chief Justice emanci- ALABAMA CLAIMS. 99 pated from all social bonds ? It is not so with Chief Justices in America ; nor was it so in former days in Great Britain, according to my recollection of the great judges, the Eldons, the Tenterdens, and the Stowells, Avho then presided over the administration of the common law, and of the equity and admiralty jurisprudence of England. Has the human race there degenerated ? I think not : no possible judicial ten ure of office could transform or deform a Eoundell Palmer into an Alexander Cockburn. EFFORTS OF THE BRITISH GOAHERNMENT TO OBTAIN REARGUMENT. The Tribunal and the persons attending it are now before us, and we resume its proceedings at the point where we left them, namely, the session of the 27th of June, at the close ofthe address of Count Sclopis. The "Argument," filed in behalf of the United States on the 15th of June, was prepared and deliv ered in strict conformity with the stipulations of the Treaty. It was, in effect, the closing argument on the whole case, consisting of an abridged view ofthe facts on both sides as presented in their "Cases" and " Counter-Cases," with appropriate discussion of the questions of law which the claims of the United States involved. We followed the ordinary routine of judi cial controversy, and the course of common-sense and of necessity, in giving a complete resume of our Case in the final "Argument," as contemplated and pre scribed by the Treaty. The' "Case" and " Counter-Case " of each 'side had 100 THE TREATY OF WASHINGTON! sufficiently indicated the scope of inquiry .or debate, and defined its limits. Within those limits all perti nent laAV, history, and reason lay at the command of the Counsel of the United States, as of those of Great Britain. If w;e, the Counsel of the United.States, had neglected at the proper time to avail ourselves of the great stores of knowledge and of reason accessible to us, we could not expect to supply the deficiencies of our "Argument" by filing a new one as the means of response to, and conamentary on, the British " Argu- ' ment." Such procedure was not authorized, — it was plainly forbidden,— by the Treaty. It avails nothing to say that the course prescribed b^ the Treaty is unusual: such 'was the will of the two Governments. Doubtless they had good, reasons, and among them, perhaps, was the very purpose , of not having final "Arguments," — that is, the third Mgxx- ment in effect qn both sides, — consist of a mere debate of reply and rejoinder betwixt Counsel. Great Britain had no cause or ex:cuse for misappre hension in this respect, although both Government and Counsel had, it is true, fallen into the careless way of speaking of the " Summary " to be filed on the 15th of June. Nay, the paper filed by GreatBritain is expressly entitled "Argument or Summary!'' If argument and summary are synonymous terms, then it is tautology and bad taste to employ them both to designate the same document. If they mean different things, then it is misleading to employ the term sum mary afc all ; for summary is not the language nor the sense of the Trea1»y. The Treaty requires each Agent ALABAMA CLAIMS. 101 to deliver " a written or printed argument showing the- points and referring to the evidence upon which his Government relies." Do these words imply a weak or imperfect argument? Do they define the number of pages to be occupied ? Do they require either of the parties to leave out his strong points 1 Of course not. And if the Treaty said " summary," — which it does not, — who shall say what is a fit sum mary of some twenty volumes of evidence and of legal discussions, such as the two " Cases " and " Counter- Cases" comprehend? The United States had the right to judge for themselves what exhibition of " points " and what " evidence " to submit to the Ar bitrators. The British Government must have been dissatis fied with its own argument. That is clear, arid is the only sufficient explanation of the earnest and persist ent efforts of Sir Eoundell Palmer to obtain permis sion to reargue the cause. There was no misappre hension on the part of the British Government as to the more or less fullness of argumentation admissible •in the so-called "Argument;" for .there is notable similitude in this respect on both sides in the intro ductory language of the final "Argurnents" of the two Governments. We believed at the time, and all the subsequent occurrences tended to prove, that as the British Government had underestimated the force of our cause until the " Case " came into their hands, so they did not appreciate the amplitude of our lavir and our evidence until they read our "Argument." And strange, almost incredible, though it be, the 102 THE TREATY OF WASHINGTON. British Government would seem to have supposed that the United States were to discuss and confute the British " Counter-Case" in the American " Counter- Case ;" that is, to make reply to an elaborate argu ment on the law and the facts [for such is the British " Counter-Case " ] without seeing it or possessing any knowledge of its contents. Manifestly, no complete and systematic final "Argument" on the part of the United States was possible without previous thought ful knowledge of the British " Counter-Case." And yet Sir Eoundell Palmer, in expressing desire to an swer our "Argument," reasoned expressly on the im plication that it ought to have been "a mere comple ment of previous documents.^'' No such idea certainly is conveyed by the Treaty ; and the implication' is contrary to reason and the very nature of things. Sir Eoundell Palmer entered on the question the monient it became reasonably certain that the Arbi tration would proceed. On the 29th of June he pro posed to us, informally, to arrange for reargument of the cause, he to have until the end of the first week of August to prepare his Argument, and we to the end of August to prepare a reply. The effect of this would be a suspension of the sittings for more than ten weeks, and a prolongation to that extent [and perhaps much more] ofthe absence of the American Arbitrator, Agent, and Counsel from their country. In other respects the proposition involved much in equality; for it would have given to the British Counsel nearly six weelcs at his own home in London, with books, assistants, translators, and printing-offices ALABAMA CLAIMS. 103 at his command, — in a word, the vs^hole force of the British Government at his back, in which to write and print his Argument,; while it Avould have afforded to the American Counsel less than four weeTcs for the same task, in which to prepare and print our Argu ment in both languages, with no libraries at hand, no translators, no printers, thrown wholly on our per sonal resources away from home in the heart of Eu-' rope. The Counsel of the United States desired no re- argument of the cause. We found nothing in the British Argument which we had not anticipated and disposed of to our own satisfaction. Not that we feared reargument : on the contrary, we felt such com plete confidence in our rights as to be sure not to lose, and to hope rather to gain, by further discussion. Hence we did not desire nor seek reargument, al though perfectly ready for it if calied upon in con formity with the Treaty, Our objections were to the delay and to the departure from the conditions of the Treaty, According to the explicit language of the Treaty, " the decision of the Tribunal shall, if possible, be made within three months from" the close of the ar- guinents on both sides ;" and the prescribed day " for the close of the arguments on both sides " is the 15th of June. Suppose that, by agreement ofthe two Gov- ernments,-^-it could not be done by Counsel without consent of their Governments, — "the close of the arguments" had been postponed to the 31st of Au gust, as proposed by Sir Eoundell Palmer. In that ' 104 , THE TREATY OF WASHINGTON. event the Arbitrators could not in reason or decency have commenced their deliberations until the 1st of September ; they might well have taken, as they did in fact take, three months to complete their delibera- tions; and thus the Arbitrators and the American Counsel [but not the English] would have been de tained at Geneva until the 1st of December, and there fore would not have been able 'to reach their homes until January. But the reargument proposed by Sir Eoundell Palmer was contrary to the Treaty, which in express terms closes the rights of the two Governments as to hearing, and admits further discussion on their part only at the requisition ^f the Arbitrators, '^if they desire further elucidation in regard to any point." [Art. v.] Which manifestly intends, not reargument ofthe cause, but solution of any doubt, which, after the completion of the arguments, may occur to the Tri bunal. No consent of Counsel could annul the stip ulations of thie Treaty. • ' Of course, for reasons of right as well as expedien cy, we declined to accede to the proposition of Sir Eoundell Palmer. Nevertheless, at the meeting of the 27th, immedi ately after the conclusion of Count Sclopis's discourse, Lord Tenterden presented a motion on the part of Sir Eoundell Palmer for leave to file a AAritten argu* ment in answer to the Argument of the United States delivered on the 15th, and requesting adjournment for that purpose until August. Sir Eoundell Palmer read a brief of the points he desired to argue, which ALABAMA CLAIMS. 105 covered in effect all the points of the American " Case " and " Argument," — that is to say, it implied a com plete reargument of the whole cause. It amounted to assuming or admitting that no sufficient or proper defense had yet been made by the British Govern-' ment. We, in behalf of the United States, proceeded to prepare a reply to this motion. We took it up point by point, and showed by citation of pages, that every one of the proposed points had been largely and amply discussed already by Great Britain in her " Case," " Counter-Case," and " Argument ;" that noth ing new could be said on these points ; and that, in fact, the very object proposed was to reiterate ar guments already adduced, but to do it in the inad missible form of mere criticism of the American Ar gument. And we cited the Treaty to show that the discussion proposed was contrary to the explicit con tract of the two Governments. Meanwhile the Tribunal proceeded to decide, on suggestion of Mr. Adams, that the proposed argument Avas inadmissible, and that Counsel had no right to address the Tribunal unless required by it so to do for the elucidation of any point under the 5th article of the Treaty. At the next meeting of the Tribunal, on the 28th, Sir Alexander Cockburn presented a list of eight points covering in effect the points of the rejected motion of Sir Eoundell Palmer, and moved that the Tribunal require of the Counsel of the two Governi ments written or printed arguments on the said points; 106 THE TREATY OF WASHINGTON. but the Tribunal decided not' at present to require such arguments. Whether the motion of Sir Alexander Cockburn was prompted by Sir Eoundell Palmer, in order to afford to the latter the desired opportunity to criti cise the American " Argument," — or whether it was a spontaneous one arising from the former's not hav ing studied the, case, and his consequent ignorance of the. fact that most of the questions proposed had al ready been amply and sufficiently discussed by both Governments, — does not distinctly appear. Proba bly both motives co-operated to induce .the motion Subsequent incidents throw some light on this point, Meanwhile it was plain to infer from the observa tions of the other Arbitrators, and from their deci* sion, that they were better informed on the subject ' than Sir Alexander Cockburn. RULES CONCERNING THE CONFERENCES OF THE TRIBUNAL. The Tribunal next decided that the Agents, should attend all the discussions and deliberations of the Conferences, accompanie*d by the Counsel, except in case where the Tribunal should think it advisa'ble to conduct their discussions and deliberations with closed doors. The practical effect of this resolution, when connected with a resolution adopted at a subsequent meeting in regard to the course of proceeding, was to enable and require -the Agents and Counsel to assist at the judicial consultations of the Tribunal : it being - understood, of course, that none others should be pres ent save the representatives of the two Governments^ ALABAMA CLAIMS. 107 The Tribunal then authorized publicity to be given to its declaration and to the declarations of the tAvo Governments, relative to the national claims of the United States: after which it adjourned to the 15th of July. Heretofore, either by intimation to the Secretary, and to the Agents and Counsel, or by formal resolu tion, the Tribunal had signified its desire that the proceedings should not be committed to publicity, unless by the Avill of the respective Governments. Of course, reporters for the Press, and other persons not officially connected with the Arbitration, were ex cluded from the sittings of the Tribunal. This re serve or secrecy of proceeding was inconvenient to the many respectable representatives of the Press of London and New York, persons of consideration, who had come to Geneva for the purpose of satisfying the public curiosity of the United States and of England regarding the acts of the Tribunal ; but was dictated, it would seem, rather by considerations of delicacy toAvard the two Governments, than by any reluctance on the part of the Arbitrators to have their action made knpwn day by day to the world. It was a tri bunal of peculiar constitution and character; its members were responsible in some sense each to his own Government., and also to the opinion, at least, of the litigant Governments ; its' proceedings were not purely judicial, but in a certain degree diplomatic ; and a large part of the proceedings were in the na ture not so niuch of action as of judicial consultation, which it miojht well seem unfit to communicate to the 108 THE TREATY OF WASHINGTON. general public as they occurred, although- perfectly fit to be thus communicated to the respective Govern ments. The Tribunal reassembled on the 15th of July. Down to this time all the proceedings of the Arbitra-r tors were in their nature public acts, or they have been made public through the respective Govern ments. All such acts were recorded in the protocols. Hereafter, we shall have, in addition to the acts of the Tribunal recorded in protocols, a series of pro visional opinions, which were also printed and dis tributed [or should have been] according to express order of the Tribunal. These opinions of the Arbi trators, as well as their official acts, have already been made public by both Governments. « But, incidentally to such acts and opinions, there was much oral debate from time to time at the suc cessive Conferences of the Tribunal. At these de bates, the Agents and Counsel of both Governments were required to assist, by resolution of the Tribunal. Assisting, we necessarily heard what was said by the respective Arbitrators. We were expected to hear, it is presumable, and also to understand : atherwise, why required to attend ? Are these debates, which occurred in the presence of so many persons, Agents, Counsel, and others, to be regarded as confidential and unfit to be disclosed now? Forget them, we can not, even if copious notes of the most important debates did not exist to aid and cor rect mere, memory. Is it, then, improper, to speak of them? I think not. I conceive that any of us, who ALABAMA CLAIMS. 109 possess knowledge of those debates, have perfect right to refer to them on all fit occasions. I propose; however, on the present occasion, to ex ercise this right sparingly, and that only in two rela tions, namely, first, very briefly, where such reference involves mere formality, and is almost inseparable from acts recorded in the protocols ; and, secondly, with a little more fullness at the close, and with some retrospection, for the purpose of explaining the final act of the British Arbitrator. DISCUSSIONS OF THE TRIBUNAL. At the meeting of the 15th, discussion arose imme diately as to the method and order of proceeding to < be adopted in the consideration of the subjects refer red to the Tribunal. Mr. Stsempfli then suggested that in his opinion the proper course, was to take up the case of some vessel, as expressly required by the ,Treaty, and consider whether on that vessel Great Britain was responsible to the United States. He had directed his own in quiries in this way, and in this way had arrived at satisfactory conclusions. His plan had been to select a vessel, — to abstract the facts proved regarding her, ' — and then to apply to the facts the special rules of the Treaty. Debate on- this proposition ensued between Sir Alexander Cockburn, on the one hand, and the rest of the Arbitrators on the other hand ; the former de siring to have preliminary consideration of " princi ples," that is, of abstract questions of law, and the lat- 110 THE TREATY OF WASHINGTON. ter insisting that the true and logical course was that of the Treaty, namely, to t^ke lip a case, to examine the facts, and to discuss and apply the law to the facts thus ascertained, as proposed by Mr. Stsempfli.- Finally it was concluded, on the proposition of Count Sclopis, to follow substantially the programme of Mr. Stsempfli, that is, to take up the inculpated ves sels, seriatim, each Arbitrator to express aU opinion in writing thereon, of such tenor as he should see fit, but these opinions to be provisional only for the pres ent, and not to conclude the Arbitrator, or to prevent his modifying such opinion, on arriving at the point of participation in the final decision of the Tribunal. , On the 16th, consideration of the programme of Mr. Stsempfli was resumed. It cpnsisted of the fol lowing heads, which deserve to be set forth here, in order to show how thoroughly the subject had been examined and digested by Mr, Stsempfli. " (A.) Indications generales : 1. Question £i decider. 2. Delimitation des faits. 3. Principes generaux. " (B.) Decision relative a chacun des croiseurs. Observations preliminaires : l.Le Sumter. (a) Faits. {b) Consid^rants, (c) Jugement," [Follow the names ofthe other vessels, with similar sub-di vision of heads of inquiry.] " (C.) Determination duTribunal d'adjuger une somme en bloc. " (D.) Examen des elements pour fixpr une somme en bloc. " (E.) Conclusion et adjudication definitive d'uae somme en bloc." ALABAMA CLAIMS. HI The completeness and exactness of this programme are self evident; and by these qualities it really im posed itself on the Tribunal, in spite of all objection, and of occasional temporary departures into other lines of thought. There will be occasion hereafter to remark on the precision and concision of the opin ions of Mr, Stsempfli. Sm ALEXANDER COCKBURN'S CALL FOR EEARGUMENT. Sir Alexander Cockburn then renewed his propo sition for a preliminary argument by Counsel, set ting forth analytically the various objects of inquiry involved in the claims of the United States, and con- cludino' as follows : o " That, looking to the difficulty of these questions, and the conflict of opinion which has arisen among' distinguished ju rists on the present contest, as well as to their vast importance in the decision of the Tribunal on the matters in dispute, it is the duty, as it must be presumed to be the wish, of the Arbi trators, in 'the interests of justice, to obtain all the assistance in their power to enable them to arrive at a just and correct conclusion. That they ought, therefore, to call for the assist ance ofthe eminent counsel, who are in attendance on the Tri bunal to assist them with their reasoning and learning, so that arguments scattered over a mass of documents may be pre sented in a concentrated and appreciable form, and the Tribu nal may thus have the advantage of all the light which can be thrown on so intricate and difficult a matter, and that its pro ceedings may hereafter appear to the world to have been char acterized by the patience, the deliberation, and anxious desire for information on all the points involved in its decision, with out which it is impossible that justice can be duly Or satisfac torily done." " To obtain all the assistance in their power to en- 112 THE TREATY OF WASHINGTON. able them to arrive at a just and correct conclusion," — " to call for the assistance of the eminent counsel who are in attendance on the Tribunal to assist them with their reasoning and learning." Analyzing the proposition, and omitting the intro ductory and concluding phrases of more or less irrel evant and diffuse appeal to extraneous considera tions, the essence of the proposition is to call on Counsel to assist the Tribunal, " so that arguments scattered over a mass of documents may be presented in a concentrated and appreciable form." Now, passing over the looseness and inaccuracy of expression in this statement, it plainly is incorrect in substance. The considerations of law or fact neces sary for the instruction of the Tribunal are not " scat tered over a mass of documents ;" they are " presented in a concentrated . . . form" [we do not say apprecia ble, because that is not a quality intelligible as ap plied to /orm] in the three arguments of each ofthe Governments, — that is to say, " Cases," " Counter- Cases," and " Arguments." The proposition betrays singular confusion of mind on the part of a nisi prius lawyer and judge. The subjects or elements of ar gument are, it is true, " scattered over a 'mass of doc uments;" but it is quite absurd to apply this phrase to the Arguments themselves, in which the two Gov ernments had each labored, Ave may suppose, to ex hibit their views of the law and the facts in a man ner to be readily comprehended and appreciated by the Tribunal. In the Arguments proper, filed on the 15th of June, each Agent had, as the Treaty requires. ALABAMA CLAIMS. 113 delivered " to each of the said Arbitrators and to the Agent of the other party a written or printed argu ment showing the points and referring to the evi dence on which his Government relies." These "Ar guments " were freshly in the possession of the Arbi trators. To call on Counsel,/or the reason assigned, to reargue the matters therein argued, was just as unreasonable as it would be for a judge presiding at a hearing in common law, equity, or admiralty, to call on the counsel, who have just finished their ar guments, to do something for the "assistance" of the Court, — it would be difficult to see what, — to the end " that arguments scattered over a mass of documents may be presented in a concentrated and appreciable form." And if in this case such arguments had been filed in- print, it would be natural for counsel to say that they had just done the thing required of them, as the Court would perceive if it would please to read those arguments : which, in the present case, it would seem, Sir Alexander had neglected to do ; and, instead of doing it, he had got bewildered by plung ing unpreparedly into the " mass of documents" filed by the two Governments. After discussion, the Tribunal decided to proceed with the case of the Florida, according to the pro gramme of Mr. Stsempfli, that is, in effect, overruling the motion of Sir Alexander Cockburn. The Tribunal, it would seem, could not perceive the ai^vantage of discussing speculative general ques tions, as in a moot court; and, more especially, ques tions of laAV, which had already been discussed abun- H 114 THE TREATY OF WASHINGTON. dantly in the appropriate place and time, that is, in the successive Cases and Arguments of the two Gov- ernmentSi CASE OF THE "FLORIDA" DECIDED. The Arbitrators then met on the 17th, and pro ceeded to take up the case of the Florida. On motion of Sir Alexander Cockburn, it was or dered by the Tribunal that the provisional opinions or statements to be read by the Arbitrators should.be printed, and distributed to the Arbitrators and to the Agents and Counsel of the two Governments. Mr. Stsempfli's opinion or statement had been read already, and was in print. After some incidental discussion among the Arbi trators, Sir A. Cockburn began the reading of his opinion on the case of the Florida. ^ The Tribunal met again on the 19th, and Sir Alex ander Cockburn proceeded to read another portion of his opinion in the case of the Florida. Then, after some debate, caused by irregularities of speech or conduct on the part of Sir Alexander, .Mr. Adams proceeded to read the commencement of his opinion in the matter of the Florida. On the 22d, the case ofthe Florida was concluded. Sir Alexander Cockburn and Mr. Adams completed the reading of their opinions, and the Baron d'ltajuba and Count Sclopis both read theirs. The result was to convict Great Britain of culpable want of due diligence in the matter of the Florida by the con current provisional opinions of four of the Arbitra- ALABAMA CLAIMS. 115 tors, with a dissenting opinion from the British Ar bitrator, The Florida, it will be remembered, was a steam gun-boat, built at Liverpool by Miller & Sons, on contract with the Confederate agent Bullock, for the warlike use of the Confederates, Miller & Sons falsely pretended that she was being built for the Italian Government by arrangement with Messrs. Thomas & Brothers of Liverpool and Palermo, one of whom expressly and fraudulently confirmed the false representation of Miller & Sons. The British Gov ernment, although repeatedly warned of the illegal character of this vessel by the diplomatic and con sular authoiities of the United States, shut its eyes to the transparent falsehood and fraud of Miller & Sons and of Thomas, and took no proper and suffi cient measures to investigate her character and to prevent the violation of the laws, of the kingdom. She sailed from Liverpool without obstruction, cleared by the name of Oreto, unarmed, it is true, but ac companied by another vessel containing her arma ment, called the Biihama. The Oreto next makes her appearance at Nassau, where she proceeded further to equip and arm as a man-of-war. The naval authorities at Nassau were unanimous in denouncing her illegal character, but the civil authorities, perverted by' their sympathies, could with difficulty be persuaded to act against her. When they did act, she was acquitted by the local Admiralty Court, in the teeth of the facts and the. law, either corruptly, or with inexplicable ignoran<;e^ 116 THE TREATY OF WASHINGTON. of their duty on the part of the Court and of the attorney representing the Government, No appeal was taken by the Government, The Oreto then threw off all pretensions of inno cence; she openly completed her equipment, arma ment, and crew, partly at one place and- partly, at an other, under the eye of the colonial authorities ; and proceeded to cruise and to make prizes as an avowed liian-of war by the name oi Florida. Meanwhile, with the illegality of her operations in England, and also in the Bahama Islands, now notorious and admitted, she continued to come and go in British ports, and to obtain supplies there as her base of operations, without interference on the part of the British Government. ; On these facts, the three neutral Arbitrators and Mr, Adams convicted the British Government of want of due diligence, and of disregard otherwise of the Eules ofthe Treaty, notwithstanding that the Florida had entered* and remained some time in the Confed erate port of Mobile, , , Their several opinions were precise, definite, clear, and with positive conclusion, as tp all the material points of the case, in favor of the United States, Sir Alexander Cockbum's adverse opinion was a verbose special plea,— Avhich, while admitting all the material facts charged, and conceding the palpable fraud practiced by Miller &, Sons and Thomas,— the, original guilt of the vessel, — the absurdity of the ac tion of the Admiralty Court of Nassau, — the illegal equipments at Nassau and elscAvhere in British ports, — and the continued use of British ports as a base of ALABAMA CLAIMS. 117 operations, — could not discover in these incidents any negligence or any violation of neutrality on the part of the British Government, Sir Alexander chose not to remember that the affair of the Oreto or Florida was, from the beginning to the end, according to the confession of Lord John Eussell himself,' a scandal and a reproach tp the laws of Great Britain, and still more, we may add, a scandal and a reproach to cer^ tain ofthe British Ministers, of whose honor Sir Alex ander assumes to be the special champion. When Count Sclopis had concluded the reading of his opinion. Sir Alexander Cockburn renewed his mo tion for the hearing of Counsel ; but was again over ruled by the Tribunal, which assigned for its next Conference the consideration of the case of the Alor bama. SPECIAL ARGUMENTS ORDERED ON CERTAIN POINTS. - The Tribunal met again on the 25 th ; and the Bar on d'ltajubd then made a precise and formal propo sition, calling on the Counsel of Great Britain for a written or printed Statement or Argument in elucida tion of three questions of law, namely : " 1. The question of due diligence treated in a general man ner. " 2. The efiect of commissions possessed by Confederate ves sels of -war which had entered into British ports. " 3. The supplies of coal furnished to Confederate vessels in British ports." And with liberty to the Counsel of the United States to reply either orally or in writing as the case may be. This proposition was adopted by the Tribunal, 118 THE TREATY OF WASHINGTON. In SO far as regards the first point, the call for Ar gument was obviously induced by a desire to put an end to the unseemly importunities of Sir Alexander Cockburn; for the Arbitrators had in effect again and again declared that in their judgment there was no occasion for elucidation or further discussion of the general question of due diligence ; that the Tri- bunal did not desire any theoretical discussions of abstract questions; and that the practical question of due diligence had been already discussed to satiety in the several Cases and Arguments filed by the re spective Governments, We shall perceive in the se quel how well-founded were the objections of the Tri bunal in this respect ; and how devoid of any useful object or purpose had been the ill-digested calls of Sir Alexander Cockburn, To the other questions propounded by the Baron d'ltajubd, no objection could be made : they Avere fit subjects of the "elucidation" contemplated by the Treaty, CASE OF THE "ALABAMA" DECIDED. The Arbitrators then proceeded to read alphabet ically their opinions in the case ofthe Alabama, — that is to say, Mr, Adams, Sir Alexander Cockburn, Count Sclopis, and Mr, Stsempfli read argumentative state ments at length, and the Baron d'ltajubd expressed his concurrence in the statement made by Sir Alex: ander Cockburn, In this case the Arbitrators were unanimously of opinion, — the British Arbitrator equally with his ALABAMA CLAIMS. 119 colleagues, — that the British Government, had been guilty of culpable want of the due diligence requiredj either by the law of nations, the Eules of the Treaty, or Act of Parliament. In fact, this vessel had been built and fitted out in Great Britain in violation of her laws, Avith intent tb carry on war against the United States ; evidence of this fact had been submitted, sufficient, in the opinion of the Law Officers of the Crown, to justify her de tention ; notwithstanding which, by reason of absence of due vigilance, and not without suspicion of conniv ance on the part of public officers, and with extraor- dinary delay in issuing necessary orders, she was suf fered to go unmolested out of the immediate jurisdic tion of the British Government. -Her armament, sup- plies, and crew were all procured from Great Britain. And, in like violation of law, she was received and treated as a legitimate man-of-war in the colonial ports of Great Britain, Sir Alexander Cockburn was constrained to admit want of due diligence as to the case of the Alabama, in three distinct classes of facts, each one of which sufficed to establish the responsibility of the British Government, If Sir Alexander had any good cause to accuse his colleagues, as he did, of precipitancy and want of knowledge or practice of law, because they came to provisional conclusions in the case of the Florida without waiting to hear Sir Eoundell Palmer, surely the British Government had reason to attach the same censure to him in the case of the Alabama. 120 THE TREATY OF WASHINGTON. How could he presume to condemn Great Britain in this behalf, ignorantly, blindly, in the dark, and with out assistance of the " reasoning and learning " of the eminent Counsel in attendance on the Tribunal ? But even Sir Alexander Cockburn could no longer resist the force of conviction, nor help admitting the truth of the allegation of the United States, their Agent and Counsel, imputing culpable negligence to his Government, The United States had, not with out cause, brought the British Government to the bar of public opinion and of the Tribunal of Arbitration ; himself now confessing it, their Agent and Counsel had not been engaged, as he had charged, in prefer ring "false accusations, unworthy of them and of their Government,". And if the proved and admit ted truth of these accusations implies impeachment of the personal honor of any British Minister or Min isters, that is not, the fault, of the American Govern ment, its Agent or Counsel, but of the British Gov ernment, whose violation of neutrality is at length conceded even by Sir Alexander Cockburn. . In the ultimate .judgment of all the Arbitrators, the condemnation of the Alabama and the Florida carried with it the condemnation of their respective tenders, namely, the Tuscaloosa, the Clarence, the Ta- cony, and the Archer. CASE OF THE "SHENANDOAH" DECIDED. There remained but three vessels' as to whose re sponsibility we had reason to have hopes, namely, the Georgia, the Metrihution, and the Shenandoah; ALABAMA CLAIMS. 121 and with confident expectation only as to the Shen andoah after she left Melbourne. Without pausing here to consider particularly the Retribution and the Georgia, suffice it to say that eventually they were rejected; but the Shenandoah, after special explana tions in writing submitted by the Counsel of the two Governments, was held responsible by vote of three of the Arbitrators, Count Sclopis, Mr. Stsempfli, and Mr. Adams. As the Shenandoah, after increasing her armament at Melbourne, had made many captures at the very close of the war, when her cruise could not be of any possible advantage to the Confederates, her exoneration by the Tribunal Avould have been justly regarded by us as an act of great injustice to the United States. THE SPECIAL ARGUMENTS. It remains next to speak of the successive Argu ments of Counsel before the Tribunal, as well those heretofore indicated as others called for in the sequel. On . the 25th of July, as Ave have seen, the Tri bunal voted to require from the Counsel of Great Britain a written or printed Argument touching cer tain points. On the 29th, Lord Tenterden announced that he had delivered the required Argument of the British Counsel to the Secretary of the Tribunal. • The copy thus delivered was in manuscript. As subsequently printed, it consists of .43 folio pages. The replies of the American Counsel, each of them addressing the Tribunal separately, were presented 122 THE TEEATY. OJ" WASHINGTON. on the 5th, 6th, and 8th of August, consisting alto^ gether of 47 pages of the same folio impression. It would not be convenient, and it does not come within my plan, to discuss the Arguments of Counsel on either side, except where some particular point of such Argument calls for notice. Hence, as in the case of the general Arguments of April and of June, so as to the special Arguments called for by the Tri bunal, it will be sufficient to enumerate them, and to give to them their proper place in the history of the Arbitration. The first Argument of Sir Eoundell Palmer, hoAv- ever, calls for some observations. Of his 43 pages, 31, — say three quarters, — are de voted nominally to the question of due diligence gen erally considered. Now, in the previous regular Arguments, each Gov ernment had fully discussed this question, and had, as if by common consent, concluded in express terms that it neither required nor admitted any further dis cussion. That conclusion was correct. Accordingly, most of these 31 pages are occupied with matters re motely, if at all, connected with the question. What constitutes due diligence ? — such as [copying, word for word, sundry marginal notes] rules and principles of international law ; express or implied engagements of Grtat Britain; effect ofprohibitory municipal laws; the three Eules of the Treaty; the maxims cited by the United States from Sir Eobert. Phillimore on the question, Civitas ne deliquerit an cives; for what pur pose Great Britain refers to her municipal laws ; doc- ALABAMA CLAIMS. 123 trine of Tetens as to municipal laAvs in excess of ante cedent international obligations ; the arguments as to the prerogative powers belonging to the British Crown; the true doctrine as to the powers of the Crown under British laAv; the British Crown has power by common law to use the civil, military, and naval forces of the Eealm to stop acts of war within British territory; the preventive powers of British law explained ; examination of the preventive pow ers of the American Government under the Acts of Congress for the preservation of neutrality : — and so of diverse other questions discussed by Sir Eoundell Palmer under the head of due diligence generally considered. Very generally, it is clear. Nay, 13 of the 31 pages devoted to the question of "due dil igence generally considered" are occupied with ex amination of the laws and political history of the United States, in continuance and iteration of the groundless and irrelevant accusations of the Ameri can Government introduced into the British Case and Counter-Case. Now Sir Eoundell Palmer is, omnium consensu, at the head of the British Bar in learning, intelligence, and integrity; and Ave may be sure that arguments addressed by him to the Tribunal would be the best that such 'a lawyer, so high in mental and moral qual ities, or that any living lawyer, be he who "he may, could devise or conceive. The British Arbitrator had gone "clean daft" in the hope deferred of hearing him. He himself had been earnestly seeking to be heard by the Tribunal for more than a month ; he had com- 124 The treaty of Washington. templated being heard for many months. And the result of all this meditation, and of all this earnest desire to serve his country, was a series of arguments mostly immaterial to the issue, as the final judgment ofthe Tribunal plainly shows, and coming in after the main question had been actually settled in the cases of the Alabama and- the Florida. That is to say, — and it is in this relation the point is .introduced, — the claims of the United States rested on a basis which all the great forensic skill and ability of Sir Eoundell Palmer could not move, — which commend ed itself to the confidence of the neutral Arbitrators, — and which even extorted the reluctant adhesion of the prejudiced British Arbitrator. Subsequently, on requirement of. the Arbitrators, we discussed, in successive printed Arguments, the special question of the legal effect of the entry of the Florida into Mobile ; the question of the recruit ment of men for the Shenandoah at Melbourne; and the question of interest as an element ofthe indemni ty due to the United States. QUESTION OF DAMAGES. Meanwhile, the Tribunal had voted definitively on the question of the liability or non-liability of Great Britain for the acts of the cruisers named in the " Case" of the United States, in the terms which Avill appear in explaining their final judgment. They had also voted on several ofthe incidental questions, such as the abstract question of due diligence, entry into Confederate ports, commission, and supply of coal. ALABAMA CLAIMS. 125 raised by successive requirements of the Tribunal. They had thus arrived at the point of discussing matters, which only affected the form and the amount ofthe judgment to be rendered against Great Britain. And here, on the 26th of August, the Tribunal voted to deliberate Avith closed doors, in spite of the objection of Sir Alexander Cockburn. Thenceforth, and until the final Conference of the 14th of September, the Tribunal sat with closed doors, that is, without the assistance of the Agents and Counsel. Down to this time, the Agent, Counsel, Solicitor, and Secretaries of the United States had been assid uously occupied in preparing, copying, translating, and printing Arguments and other documents for the use of the Tribunal. And even when the regular dis cussions were ended, we had still to attend to , the laborious task of preparing schedules of the claims of the United States in response to argumentative estimates filed by the British Government. FINAL JUDGMENT OF THE TRIBUNAL. On the 9th of September the Arbitrators' defin itively adopted the' Act of Decision, which had been considered at the preceding Conference, and ordered it to be printed. They also resolved that the Decis ion should be signed at the next Conference, to be held with open doors, and they then adjourned to the 14th. 126 the treaty of WASHINGTON. ANNOUNCEMENT OF THE DECISION. On Saturday, the 14th of September, the Tribunal assembled at the hour of adjour'nment, — half-past twelve o'clock. The Hall of Conference was crowded at this hour with the Arbitrators and the gentlemen attached to the Arbitration, the ladies of their respect ive families, the members of the Cantonal Govern ment, representatives of the Press of Switzerland, the United States, and Great Britain, and gentlemen and ladies among the most estimable of the private cit izens of Geneva. The day was beautiful ; the scene imposing and impressive. But the British Arbitrator, Sir Alexander Cockburn, remained unaccountably ab sent, while curiosity grew into impatience, and impa tience into apprehension, until long after the pre-' scribed hour of meeting, when the British Arbitrator finally made his appearance. « The official- action of the Conference commenced' with the accustomed formalities. The President then presented the Act of Decision . of the Tribunal, and directed the Secretary to read it in English, which was done : after which duplicate originals ofthe Act were signed by Mr. Adams, Count Frederic Sclopis, Mr, Stsempfli, and Viscount ofltajuba; and a copy of the Decision, thus signed, was delivered to each of the Agents of the two Governments re spectively. Another original was subscribed in like manner, to be placed, together with the archives of the Tribunal, among the archives of the Council of State ofthe Can ton of Geneva. ALABAMA CLAIMS. 127 Sir Alexander Cockburn, as one of the Arbitrators, declining to assent to the Decision, presented a state ment of his " Eeasons," which, without reading, the Tribunal ordered to be received and recorded. Thereupon, in an appropriate address, Count Sclopis declared the labors of the Arbitrators to be finished, and the Tribunal dissolved. The discourse of Count Sclopis was immediately •followed by salvos of artillery, discharged from the neighboring site of La Treille by order of the Can tonal Government, with display ofthe flags of Geneva and of Switzerland between those ofthe United States and of Great Britain. It is impossible that any one of the persons present on that occasion should ever lose the impression of the moral grandeur of the scene, where the actual rendition of arbitral judgment on the claims of the United States against Great Britain bore witness to the generous magnanimity of two of the greatest na tions of the world in resorting to peaceful reason as the arbiter of grave national differences, in the place of indulging in baneful resentments or the vulgar ambition of war. This emotion was visible on almost every countenance, and was manifested by the ex change of amicable salutations appropriate to the separation of so many persons, who, month after month, had been seated side by side as members of the Tribunal, or as Agents and Counsel of the two Governments ; for even the adverse Agents and Coun sel had contended with courteous weapons, and had not, on either side, departed, intentionally or con- 128 THE TREATY OF WASHINGTON. sciously, from the respect due to themselves, to one another, and to their respective Governments. CONDUCT OF THE BRITISH ARBITRATOR. To the universal expression of mutual courtesy and reciprocal good- will there was but one exception, and that exception too conspicuous to pass without notice. The instant that Count Sclopis closed, and before the sound of his last words had died on the ear. Sir Alexander Cockburn snatched up his hat, and, with out participating in the exchange of leave-takings around him, without a word or sign of courteous rec ognition for any of his colleagues, rushed to the door and disappeared, in the manner of a criminal escaping from the dock, rather than of a judge separating, and that forever, from his colleagues of the Bench. It was one of those acts of discourtesy whigh shock so piuch when they occur that we feel relieved by the disap pearance of the perpetrator. SIR ALEXANDER COCKBURN'S EEASONS FOR DI-SSENT. The British Arbitrator, who, so frequently in*the course of the Conferences, acted as a party agent' rather than a judge, had been occupying himself in the preparation of a long Argument on the side of Great Britain, in which he throws off the mask, and professedly speaks as the representative of the Brit ish Government. He withheld this Argument from the knowledge of the Tribunal at the proper time for its presentation as the "Eeasons" of 'an Arbitrator. At the last moment,— without its being read to the . ALABAMA CLAIMS. 129 Tribunal, or printed for the information of Agents and Counsel, as a resolution of the Tribunal, adopted on his own motion, required, — he presents this Argu ment as his "Eeasons ... for dissenting from the Decision of the Tribunal of Arbitration." The title of the document is a false pretense, as we shall con clusively show in due time: the act was a dishonor able imposition on the Tribunal, and on both Gov ernments, Great Britain as mUch as the United States. In point of fact, the document filed by Sir Alexan der was in large part of such a character that, if it had been offered for filing at any proper time, and with opportunity to persons concerned to become ac quainted with its contents, it must [as declared by the Secretary of State of the United States in his dis patch to the American Agent of October 22, 1872] have been the plain duty of the American Agent to object to its reception, and of the Tribunal to re fuse it, as calculated and designed to weaken the just authority of the Arbitrators, as insulting to the United States in the tenor of much of its contents, and as in jurious to Great Britain by its tendency to raise up obstacles to the acceptance of the Award, and to pro duce alienation betAveen the two Governments. The document consisted, in part, of the opinions of Sir Alexander Cockburn on the several vessels, copies of which he ought to have delivered in print to the Agent and Counsel of the United States, in conform ity with his own resolution, but which he failed to do, thus depriving the American Government of ad- I 130 THE TREATY OF WASHINGTON. vantages in this relation to which it was entitled, and which the British Government in fact enjoyed by reason of the. more loyal conduct ofthe other Ar bitrators. He discusses these vessels with great prolixity, so as to fill 180 pages folio letter-press, while the corre spondent opinions of all the other Arbitrators united occupy only 66 pages, the difference being occasioned partly by the number of letters and other papers in terjected into his opinions, and partly by the diffuse- ness and looseness of his style and habit of thought, as compared Avith theirs. The residue of Sir Alexander's document, consist ing of 116 pages, is devoted partly to the discussion of the special questions, in all which he is inordinate ly prolix, and partly to a general outpouring of all the bile which had been accumulating on his stom ach during the progress of the Arbitration. Sm ALEXANDER COCKBURN'S "REASONS." Let me dispose once for all of these "Eeasons" and their author, in order to arrive at subjects of more importance and interest. The matter of the docu ment, and the consideration it has received in En gland, require that it should be examined and judged from an American stand-point. Apart from the unjudicial violence and extrava gance of these " Eeasons," it is remarkable how in consistent, how self- contradicting, how destitute of logical continuity of thought, how false as reasoning, as well as irrelevant, is most of the matter. ALABAMA CLAIMS. 131 The Eeasons are on their face, and as the London Press could not fail to perceive and admit, " an elab orate reply to the American Case" [that is to say, an advocate's plea], "rather than a judicial verdict," {Telegraph, September 25,] It is, in truth, a mere nisi prius argument, not up to the level of an argument in banc; inappropriate to the character of a judge; and which might have been quite in place at Geneva as an "Argument" in the cause, provided any British Counsel could have been found to write so acrimoniously and reason so badly as Sir Alexander. To establish these positions, it would suffice to cite some of the criticisms of the London Press. The Telegraph [September 26} argumentatively demonstrates the palpable fallacy of the reasoning by which Sir Alexander endeavors to excuse the ad mitted violation of law and the want of due dili gence of the British Government in the case of the Florida, especially at Nassau. The News [September 26] condemns and regrets the declaration made by Sir Alexander in his "Eea sons " twice, where he speaks of himself " sitting on the Tribunal as in some sense the representative of Great Britain," and contrasts this with the sounder view of his duty expressed in Parliament by Lord Cairns. Compare, now, this observation of the News with certain pertinent remarks of the Telegraph [Septem ber 25]. Speaking of Mr. Adams, it says: "He put aside the temper of the advocate when he took his 132 THE TREATY OF WASHINGTON. seat on the Bench, and he performed the difficult duty with the impartiality of a jurist and the delicate honor of a gentleman.^'' And this well-merited commenda tion of Mr. Adams is prefatory to the exhibition of Sir Alexander Cockburn retaining still " the temper of an advocate when he took his seat on the Bench," and not performing his duties " with the impartiality of a jurist and the delicate honor of a gentleman," but to the contrary, as shown by his deportment at Gene va, and authenticated under his own hand in these " Eeasons." There is no escape from the dilemma : it was hon orable to Mr. Adams to act as a "judge" at Geneva; and, of course, to act as a mere " advocate " was dis honorable to Sir Alexander Cockburn. And thus we may comprehend at a glance, what seems so remarkable to the Telegraph [September 26], that when we pass from the printed opinions ofthe three neutral Arbitrators, whose "fairness" nobody disputes, and from those of the impartial "jurist" and honorable " gentleman," Mr. Charles Francis Ad ams, to the ".Eeasons " of Sir Alexander Cockburn, "We seem to go into another climate of opinion. . . . We find different premises, a different bias, a differ ent logic, and we might almost say different facts." So it is, indeed; and the explanation is obvious. The "climate" of Count Sclopis, Baron d'ltajuba, Mr. Stsempfli, and Mr. Adams, was that of fairness, judi cial dignity, impartiality, gentlemanly honor, such as belonged to their place as Arbitrators : the "climate" of Sir Alexander Cockburn was that of a self-appoint- ALABAMA CLAIMS. I33 ed "advocate," making no pretensions to "fairness" or "impartiality," but, with the "premises," "bias," "log ic," and " facts " of such an advocate, drawing up a passionate, rhetorical plea, as the officious " represent ative of Great Britain." As such " representative of Great Britain," if he be not promptly disavowed by the British Government, it will be found that his " Eeasons " lay down many positions which may somewhat embarrass present or subsequent Ministers. The News notices numerous contradictory opinions or conclusions which appear in the "Eeasons." In one place Sir Alexander complains that any Eules are laid down by the Treaty, and in another place ex presses the conviction that it is well to settle such questions by Treaty Eules. " He complains ... that the Arbitrators have not been left free to apply the hitherto received principles of international law, and that they have ; that rules have been laid down, and that they have not; that definitions have been framed, and that they have not been framed." Here is most exquisite confusion of ideas. It is the very same extraordinary and characteristic method of thinking and writing which Mr. Finlason had ex hibited at length, and which Mr. Gathorne Hardy pointed out in the case of the Queen against Nor ton: the "inflammatory statements," — the "extra-ju dicial denunciation," the " extra-judicial declamation," the going "from one side to another," and the say ing " it is " and " it is not " upon every point of law. The perfect similitude of these repulsive features of 134 THE TREATY OF WASHINGTON. the "Charge" and the "Eeasons" can not be accident al : it must have its cause in idiosyncrasies of mental constitution. This vacillation or contradictoriness of opinion, which strikes the News so much, pervades the " Eea sons." Thus Sir Alexander admits want of due diligence in the matter of the Alabama, and yet stoutly denies that the United States had any good cause of com plaint against Great Britain. He insists that Minis ters were to officiate within the limits of municipal law, and yet admits that such is not the law of na tions, the force of which he also recognizes. He de nies that the Ministers can lawfully exercise any pre rogative power in such matters, and yet justifies and approves the exercise of it [although too late] in the case of the Shenandoah. The News also calls attention to Sir Alexander's " disaffection to the conditions under which he dis charges his task, a task voluntarily accepted with full knowledge of those conditions." " He criticises adversely the Treaty of Washington : . . . these criti cisms seem to us to be extra vires. A derived author ity ought surely to respect its source. . . . Other con siderations than those laid down for him have certain ly been present to the mind of Sir Alexander Cock burn," etc. There is manifest justness in this criticism. What business had Sir Alexander to indulge in continual crimination of the Treaty of Washington, while act ing as Arbitrator under it, and possessing no pow- ALABAMA CLAIMS. 135 er or jurisdiction except such as the Treaty confers? To do so was indecent in itself, and could have no ef feet other than to embarrass the British Government. With his halbitual inconsistency of thought, to be sure, he advises submission to the judgment of the Arbitrators, while exhausting himself in efforts to shake its moral strength and that ofthe Treaty. The Times [September 28] plainly sees that the "Eea sons" of Sir Alexander "will be duly turned to ac count by Opposition critics." And perhaps that was one of the objects Sir Alexander had in view, in thus usurping the function to judge the Treaty under the cover of acting as Arbitrator to judge the specific questions submitted by the Treaty. The Times admits that the " severity of the criti cism passed by the Chief Justice on the United States and their Agents, and even on his colleagues, may, from a diplomatic point of view, be some ground for regret;" . . . that "perhaps he was too ready to con sider himself the representative of England ; " that "perhaps he takes more than a judicial pleasure" in one argumentative suggestion ; and that " he dwells, perhaps, with something too much of the delight of an advocate" on some other point; and in each one of these admissions, qualified as they are, we perceive recognition of the fact that, in his "Eeasons," Sir Alexander does not speak as an international Arbi trator, or manifest the qualities which ought to char acterize a Chief Justice. The News indicates other singular traits of " irrel evance " and confusion of mind in the " Eeasons." 136 THE TREATY OF WASHINGTON. Examination of. the substance of the "Eeasons" leads to still more unfavorable conclusions. While the Chief Justice exhausts himself in fault finding with the Counsel of the United States, it is observable that he seldom, if ever, grapples with their arguments, but shoots off instead into epithets of mere vituperation. Indeed, if it were worth while, it would be easy to show that he did not really read that which . he so in temperately criticises. And when he under takes to deal with the text, it is only in the disingen uous manner of picking out here and there a detached paragraph or phrase for comment, regardless of the context or the general line of argument. Nevertheless, when he has occasion to differ in opinion with the Counsel of the United States, such is the perverted state of passion and prejudice in which he thinks and writes, that he imputes to us in tention to practice on the " supposed credulity and ignorance " of the Tribunal. We were not amenable in anywise to the British Arbitrator ; but, if we had been barristers in his own Court of whom such things were said by him, it would have been an example of judicial indecency to parallel which it would be necessary to go back to the days of infamous judges like Jeffreys or Scroggs. Let Sir Alexander be judged by his own rule. Cramming, as he did at Geneva, in the preparation of his " Eeasons," he examined superficially and Avrote precipitately: in consequence of which he copied from the Arguments for the British Government pal pable errors, which were exposed and corrected in , ALABAMA CLAIMS. ' 137 the Arguments for the United States. Thus it is that he falls into the mistake of asserting a false construc tion of an Act of Congress, by having a mutilated text before him, quoting a part of a sentence, which may or may not justify his construction, and sup pressing the context and the sequent words of the same sentence, which clearly contradict his construc tion. Acting on his own theory of blind prejudice, we should be compelled to assume that on this occa sion he perpetrates a deed of deliberate bad faith, with intention to practice on the " supposed credulity and ignorance" of the people of Great Britain. Why did the British Arbitrator put together such a mass of angry, irrelevant, confused, and contradict ory declamation against the American Government, and denunciation of its Agent and Counsel ? To vin dicate the honor of British, statesmen. Sir Alexander declares, in a speech at a. banquet in London [Novem ber 4th], against unjust charges coming from the American Government. But that should have been done by speech or otherwise, as Sir Alexander Cock burn professedly, and in England, and not under the false pretense of an Arbitrator at Geneva, And vi olent denunciation of our Case or Arguments consti tutes no answer to our charges. And in such vituper ation ofthe American Agent and Counsel, Sir Alexan der not only throws off all pretense of judicial charac ter, and assumes the tone of a mere advocate, but he acts the part of an advocate in temper and manner such as the proper Counsel of the British Govern ment could not have descended to. Indeed, the 138 THE TREATY OP WASHINGTON. " Eeasons " proceed from beginning to end on the hy pothesis that the British Agent and Counsel had neg lected their duty ; that neither the Case, Counter-Case, nor Argument of the British Government, by whom soever prepared, nor the several supplementary Argu ments filed by Sir Eoundell Palmer in his own name, contained a proper exhibition of the defenses of the British Government ; and more especially that Agent and Counsel alike had all been false to their country's honor in not vindicating it against the charges ofthe Americans, In view of this dereliction of duty, Sir Alexander volunteers to supply, more suo, the place of Counsel, and to respond to the American Agent and Counsel, Against what charges? The existence of an un friendly state of mind toward the American Govern ment in Parliament, or in some pf the British Colo nies at the period in question ? Sir Alexander ad mits the fact in stronger terms than we had charged it. — Failure to exercise due diligence in arresting the equipment of Confederate cruisers to depredate on our commerce? Sir Alexander admits and proves it, under three heads, as to the Alabama, and only es capes the same admission as to the Florida by tech nicalities as unsatisfactory to impartial minds in En gland as in America. — As the London Telegraph says, in another relation, Sir Alexander, whilst indignantly protesting against our accusation of British officers, admits their failure to do their duty, which is the foundation of the accusation. But for that marvel ous confusion of ideas which distinguishes Sir Alex- ALABAMA CLAIMS. 139 ander, even he must have seen that, in confessing and proving the guilt of his Government, he estops him self from denying the justice of the accusation pre ferred by the United States, But the point of honor was considered when the Treaty was signed. How strangely Sir Alexander forgets the attitude in which this objection stands in Lord Eussell's correspondence with Mr, Adams; If there was any question of honor in the controversy, that it was which forbade a treaty of arbitration, as Lord Eussell constantly maintained. But three suc cessive Foreign Ministries, represented by Lord Stan ley, Lord Clarendon, and Lord Granville, had rightly decided that the question at issue did not involve the honor of the British Government, Sir Alexander wastes his words over a dead issue, utterly buried out of sight by the stipulations of the Treaty of Wash ington, Mr, John Lemoinne expresses the judgment of Eu rope, and anticipates that of history, in condemning Sir Alexander's "vehemence of polemic and bitter ness of discussion, so extraordinary in an official doc ument," Strangely enough, the SaPurday Review, which pre tends to see " scurrility" in the American Case and Argument, where it does not exist, is blind to it in the " Eeasons," where it is a flagrant fact. Meanwhile, there is nothing accusatory of Great Britain in the American Case, — ^there is nothing of earnest inculpation of the British Government in the American Argument, — which is not greatly exceeded 140 THE TREATY OF WASHINGTON. by extra-judicial accusation and inculpation of the United States in the " Eeasons " of Sir Alexander. And it is amusing to read the imputations of " con fusion," " vague and declamatory," " ignorance of law and history," which he applies to the American Coun sel, in view of what his own countrymen say of his own methods of argumentation. Indeed, it would seem that the hard words of Mr, Finlason and others concerning him had made such effectual lodgment in his brain that, whenever he writes, they .rush forth hap-hazard to be applied by him without reason or discrimination to any occasional object of argument or controversy. If, like Mr, Charles Francis Adams, Sir Alexander had simply prepared brief and temperate opinions on all the questions, whether favorable or not to the United States, both Governments would have been left in an amicable mood. As it is, in professedly throwing off the character of a judge, — which alone belonged to him of right, — of certain specific charges of the United States against Great Britain, submitted to him by the Treaty of Washington, — and in under taking to become the mere accuser of the United States, — he does but insult the American Govern ment, while subjecting his own Government to much present inconvenience and great future embarrass ment. There is one particular feature of the "Eeasons" too remarkable to be overlooked. In reading these "Eeasons" carefully, one can Hot fail to be struck by the frequent manifestation of the ALABAMA CLAIMS. 141 disposition of Sir Alexander Cockburn to stop and turn aside in order to criticise Mr. Stsempfli. Mr. Stsempfli, in conformity with the vote of the Tribunal, printed his provisional opinions, and deliv ered them to the other Arbitrators from time to time, and to the respective Agents and Counsel. Sir Alexander Cockburn disingenuously suppressed his provisional opinions until the last moment, and then filed a single copy only of the mass of matter, general and special, entitled "Eeasons," which appears in print for the first time in the London Gazette. NoAV, in the provisional opinions of Mr. Stsempfli, it is quite possible there may have been some error of statement. Sir Alexander takes pains to affirm it. But, if there be any such, it is quite immaterial, and does not affect any important conclusion either of fact or of law. Sir Alexander also committed errors of this class in the provisional opinions which he read. Some of them were noted at the time, and are still remember ed. These errors may have been corrected in the print which we now have. Indeed, the ma/nuscript shows numerous corrections. Nevertheless, but for the suppression of his provisional opinions, his col leagues might have interlarded their provisional or revised opinions with similar captious criticisms of him. It is presumable that they did not think it be coming or fair to do this ; and it was to the last de gree unfair in Sir Alexander to do it, in a document foisted into the record, as it was, at the instant of ad journment, and immediately ca/rried off without being 142 THE TEEATY OF WASHINGTON. actually filed with the Secretary or otherwise placed in the archives of the Tribunal. Now, in the early pages of his " Eeasons," he im putes to Mr. Stsempfli the having said " that there is no such thing as international law, and that conse quently we [the Arbitrators] are to proceed inde pendently of any such law," and " according to some intuitive perception of right and wrong or speculative notions, etc." The imputation is calumnious. No such statement appears in any of the printed opinions of Mr. Stsempfli; no such declaration was ever made by him orally at any of the Conferences. The declaration of Sir Al exander in this respect is but a sample of the rash ness and inaccuracy of representation which pervade the " Eeasons." What Mr. Stsempfli says on the general subject of " international law," in so' far as regards the matters before the Tribunal, is as follows : " Principes g6n6raux de droit. " Dans ses considerants juridiques, le Tribunal doit se guider par les principes suivants: — " 1. En premier lieu, par les trois Ragles poshes dans 1' Article VI. du Trait6, leqnel porte que, — et cetera. " D'aprfes le Traite ces trois Regies prevalent sur les principes que Ton pourrait deduire du droit des gens historique et de la science. " 2. Xie droit des gens historique, ou bien la pratique du droit des gens, ainsi que la science et les autorites scientifiques, peuvent Stre consider^s comme droit subsidiaire, en tant que les principes k appliquer sont gen6ralement reconnus et ne sont point sujets k controverse, ni en desaccord avec les trois Ragles ALABAMA CLAIMS. 143 cidessus. Si I'une ou I'autre de ces conditions vient k manquer, c'est au Tribunal d'y suppleer en interpr6tant et appliquant les trois Ragles de son mieux et en toute conscience." At the time when Sir Alexander sent to press his misrepresentation of the opinions of Mr. Stsempfli, he had in his hands the authentic statement thereof as printed at Geneva. There is no excuse, therefore, for this malicious and dishonorable endeavor of the British Arbitrator to prejudice the .character of the Swiss Arbitrator in Great Britain. Nevertheless, Mr. Stsempfli, according to Sir Alex ander, having cut adrift from all positive law, adopts instead " speculative notions," or " some intuitive per ception of right and wrong ;" and such ideas Sir Al exander repudiates : or, as the London Telegraph has it, " the Chief Justice, armed with sarcasm as well as logic, runs full tilt against that doctrine :" to wit, the doctrine, still in the words of the Telegraph, " that the duties Avhich nations owe to each other must be de termined by the light of intuitive principles of jus tice." The Telegraph goes on, with truth and reason, to say that, after all, Mr. Stsempfli is right, if he insists that " the rules of fair dealing, which we term inter national law, are not law in the same sense as the pos itive edicts of the common law; for the essence of such edicts is that they come from a lawgiver in the form of a parliament or a sovereign : the rules of in ternational justice are simply the code which experi ence and the judgment of able men have shown to be fair or expedient, but every civilized country feels them to be not less binding on that account." With- 144 THE TEEATY OF WASHINGTON. out pausing to consider whether these observations are perfectly accurate or not as a definition of the law of nations, we may assume that they are substantially so, and suffice at any rate to show clearly the uncan- did spirit of Sir Alexander's criticism of the imputed language of Mr. Stsempfli, — a criticism which Calls to mind a similar unjust and vicious reproach cast by Junius on Lord Mansfield. The actual statement of Mr. Stsempfli, as we have seen, was unexceptionably accurate and precise, in so far as regarded the matters before the Tribunal. Meanwhile, Mr. Stsempfli may have said orally, what he says here in print, that in many supposable cases of deficient explicitness either of the conventional rules or of the historic law of nations, " c'est au Tri bunal d'y suppleer en interpretant et appliquant les trois regies de son mieux et en toute conscience.^''' That is what the Viscount of Itajuba says in one of his opinions, namely, that a certain doctrine, assert ed by the British Government, " froisse la conscience." It is what Count Sclopis intends, when he says, " Les nations ont entre elles un droit commun, ou, si on aime mieux, un lien covamvca, forme par Vequite et sanc- tionne par le respect des interets reciproques ;" and that such is the spirit of the Treaty of Washington, " qui ne fait que donner la preference aux regies de I'equite generale sur les dispositions d'une legislation particuliere quelle qu'elle puisse etre," That is " the universal immutable justice," which in all systems of law, international or national, distinguishes right from wrong, and to which the United States appealed in ALABAMA CLAIMS. 145 addressing the Tribunal of Arbitration, And it is the negation of all these great principles of "justice," " equity," or " conscience," which pervades the " Eea sons" of Sir Alexander Cockburn: in reflecting on which, the mind irresistibly reverts to that same line of reasoning which astonished the world in his par liamentary advocacy of David Pacifico. And now, who is injured by Sir Alexander's acri monious arraignment of the United States in the last hour of the Arbitration? It does not successfully maintain the honor of the British Ministers; for it recognizes their failure to exercise due diligence, whether tried by the Treaty Eules, by the law of na tions, or by the Act of Parliament. Does it influence the action of the Tribunal ? No : that was consum mated already. Does it injure the American Govern ment, its Agent and Counsel ? No : so far as regards us, it does but prove that the American Agent and Counsel have dorle their duty regardless of the vin dictive ill-will of the British Arbitrator, and that the United States have been successful to such a degree as to throw. the Chief Justice of England into ecstasies of spiteful rage, in which he strikes out wildly against friend and foe alike, but chiefly against his own Gov ernment, in his desultory criticism as well of the Treaty of Washington as of the judgment of the Tri bunal of Arbitration. For the British Government, we know, has no dis position to repudiate the Treaty, and it accepts the Award in good faith, and desires that it should be ac cepted by the people of Great Britain. It can not be K 146 THE TREATY OF WASHINGTON. agreeable to the British Government to have all the old debate reopened by the Chief Justice, — to have the Treaty, its Eules, the Arbitration, and the Award, made by him the subject of profuse denunciation, — to have an arsenal of weapons, good, bad, or indifferent, collected by him for the use of the Opposition in Par liament. Nor can it be agreeable to see the Arbitrator they had appointed demean himself so fantastically, and, as the English Press is constrained to admit, in a manner so painfully in contrast with the dignity and judicial impartiality of the American Arbitrator. The Chancellor of the Exchequer [Mr. Lowe] gave utterance to these sentiments of grief and regret in a speech at Glasgow on the 26th of September, as fol lows : " I conceive our duty to be to obey the Award, and to pay whatever is assessed against us without cavil or comment of any kind. [Cheers.] I am happy to say that such is the opin ion of my learned friend, the Lord Chief Justice. But I must say, with the greatest submission to my learned friend, that I wish his practice had accorded a little more accurately with his theory. He has advised us to submit, as I advise you to submit, to the Award, and not only to pay the money, but to forego for once the national habit of grumbling — [laughter] — and to consider that we are bound in honor to do what we are told, and that, having once put the thing out of our power in the honorable and the high-minded way in which the nation has done, the only way in which we should treat it is simply to obey the Award, and to abstain from any comment whatever as to what the Arbitrators have done. [Cheers.] But, if my learned friend the Lord Chief Justice thought so, I can only very much regret that he did not take the course of simply signing the Award with the other Arbitrators, it being perfectly ALABAMA CLAIMS. 147 well known that he differed from them in certain respects, which would appear by the transactions of the Award. I think it is a pity when the thing is decided, when we are bound to act upon it, and when we are not really justified, in any feeling of honor or of good faith, in making any reclamation or quarrel at all with what has been done, that he should have thought it his duty to stir up and to renew all the strong arguments and con tests upon which these Arbitrators have decided. [Cheers.] I think if it was his opinion that we ought to acquiesce quietly and without murmur in the Award, he had better not have pub lished his argument, and, if he thought it right to publish his argument, he had better have retrenched his advice itself as to the arbitration." Mr. Lowe can not help seeing that the "Eeasons" are not an opinion, but an " argument," and an " argu ment" adverse to the conclusions ofthe writer. Thus, it would appear, such is the eccentric mental constitution of the Chief Justice, that while he is in capable of going through any process of reasoning without inconsistencies and self-contradictions at ev ery step, so he can not perform an act, or recommend its performance, without at the same time setting forth ample reasons to forbid its performance. In the recent debate in Parliament, to be sure, on the Queen's speech, some of the members of both Houses, especially of those in Opposition, speak in terms of laudation of the " Eeasons" of the Chief Jus tice. Lord Cairns, on this occasion, seems to have for gotten what he had said, on a previous occasion, of the judicial impartiality to be expected of an arbitrator. And Mr. Vernon Harcourt, in defending the Chief Justice against what the Chancellor «f the Exchequer had said of him at Glasgow, unconsciously falls into 148 THE TREATY OF WASHINGTON. the error of characterizing him as " the representative of the Crown, sent forth to discharge his duty to his Sovereign and maintain the honor of his country :" which affords to Mr. Lowe opportunity of responding triumphantly as follows : " I have not spoken of the Lord Chief Justice in the lan guage in which the honorable and learned gentleman has spoken of him, and which filled me with unbounded astonish ment. The Lord Chief Justice was sent to Geneva as an Ar bitrator to act impartially, and not to allow himself to be biased by the fact of his being an Englishman, but to give his judgment on what he thought to be the merits of the case. That is my belief with regard to the Lord Chief Justice, with regard to whom I am arraigned by the honorable and learned gentleman as having treated him disrespectfully. But how does the honorable and learned gentleman himself speak of the Lord Chief Justice ? He says that learned Judge was a plen ipotentiary, — that is to say, that he went to Geneva to do the work of England, and not to decide between two parties im partially, but to be biased in his course, and to go all lengths for England. The conduct ofthe Lord Chief Justice negatives such a statement, because in some respects the learned lord went against us. Then the honorable and learned gentleman said that the Lord Chief Justice was sent to Geneva to defend the honor of this country; but the fact is that he was sent to ar bitrate, and Sir Moundell Palmer and others were sent to defend the honor ofthe country. It would he a libel on the Lord Chief Justice to insinuate that he would undertake the office of going to Geneva nominally in the character of Arbitrator, but really to act as an advocate and plenipotentiary for this country.'" It is difficult to judge how much of what Mr. Lowe said on this occasion was intended as sincere defense of the Chief Justice, and how much was mere sarcasm. But this uncertainty is due to the ambiguous and equivocal conduct of the Chief Justice himself, and ALABAMA CLAIMS. I49 to his own declaration that, while engaged in writ ing an extra-judicial pamphlet, under the false pre tense of its being the act of an Arbitrator, he was really speaking as the Eepresentative of Great Brit ain. That was the mistake of the Chief Justice.' It was competent for him, after running away from the Tribunal as he did, to publish in England the con tents of the first part of the " Eeasons" as a personal act. It was dishonorable in him to smuggle it into the archives of the Tribunal, and to publish it in the London Gazette as the official act of an Arbitrator. In view of all these incidents, and of the extraordi nary contrast between the conduct of Mr. Adams and Sir Alexander Cockburn, as admitted by Englishmen themselves, it is easy to comprehend that, while the former has been honored with the express official commendation of both Governments, the latter, by wantonly insulting his fellow -Arbitrators and the United States, has, while receiving partisan praise in Parliament, rendered it difficult, if not impossible, for him to receive the hear!;y approval even of his own Government. OPINIONS OF THE OTHER ARBITRATORS. The other Arbitrators also placed on record their separate opinions as finally corrected, all which de serve notice. Each of these opinions consists of an affirmative exposition of the views of the Arbitrator who speaks. Count Sclopis, Mr. Stsempfli, the Vicomte d'ltajuba, and Mr. Adams, each of them states his con clusions founded on the documents and arguments be- 150 THE TREATY OF WASHINGTON. fore the Tribunal. Neither of them seems to have imagined that the cause of truth or of justice would have been promoted by going outside of the docu ments and arguments submitted, in order to criticise or cavil at the opinions of the British Arbitrator. We begin with Mr. Adams. His opinions are of some length; and, although containing correct state ments of local law where such statements were mate rial, yet deserve to be regarded in the better light of diplomacy and of international jurisprudence. He does not descend from the Bench into the arena of the Bar. If he had seen fit to do this, he might have dis covered quite as much inducement to acrimony and acerbity of discussion in the wanton accusations of the entire political life of the United States, which the British Case, Counter-Case, and Argument con tain, as Sir Alexander did in any thing which the Cases and Argument of the United States contained. But he yielded to- no such temptation. "He put aside the temper of the advocate," as the Telegraph truly says, to speak " with the impartiality of a jurist and the delicate honor of a gentleman." Accordingly, his opinions are without blemish either in temper or in language. He finds want of due diligence in the matter of the Alabama: and so did the British Ar bitrator. He finds extraordinary disregard of law in the matter of the Florida: and so did the British Arbitrator, He finds a series of acts of scandalous wrong perpetrated by officers of the British Govern ment in both these cases : and so did the British Ar bitrator, He can not, as the British Arbitrator does, ALABAMA CLAIMS. 151 find justification for the acts of negligence of British* Colonial authorities in the matter of the Shenandoah or that of the Retribution. And, as might have been anticipated, his conception of the duties of a State suppose a higher standard of national morality than that recognized by the British Arbitrator, Mr. Stsempfli's opinions are also of considerable length, but differ from those of Mr. Adams, especially in the form, which is that customary among the jurists of the Continent. He dso, while confining himself to the most rigorous deductions of international law, in discussing the acts ofthe inculpated Confederate cruis ers, yet writes like a statesman, habituated to breathe the air of that "climate" of "the impartiality of a jurist and the delicate honor of a gentleman" which was not the " climate" of the British Arbitrator. The opinions of the Vicomte d'ltajuba are very brief, but in the' same form of analysis as the opinions of Mr. Stsempfli, It is to be noted, however, that, be yond stating his reasoning and conclusion as to each of the inculpated cruisers, he speaks of only one ofthe special questions argued, namely, that of the effect to be given in British ports to the Confederate cruisers exhibiting commissions. As to this point he con cludes as follows : " La commission dont un tel navii'e est pourvu, ne suffit pas pour le eouvrir vis-a-vis du neutre dont-il a viole la neutrality. Et comment le belligerant se plaindrait-il de I'application de ce principe ? En saisissant ou ,d6tenant le navii'e, le neutre ne fait qu'empScher le bellig6rant de tirer profit de lafraude com- mise sur son territoire par ce m^me belligerant; tandis que, en ne procedant point contre le navire coupable, le neutre 152 THE TREATY OF WASHINGTON, Vexpose justement k ce que I'autre belligerant suspecte sa bonne foi." In these observations, we see that the Vicomte d'ltajuba appeals to the same "intuitive perceptions of right" which are so unpalatable to the British Ar bitrator. The Vicomte d'ltajuba does not give us any opin ion on the subject of " due diligence generally consid ered:" which tends to prove that his call for argument on that point was not induced by any need on his part for elucidation of Counsel, The opinions of Count Sclopis, — not only those in which he judges the particular cases, but especially those in which he discusses the questions of public law, as to which mere opinion was drawn from the Ar bitrators, virtually at the instance of Great Britain, — are instructive and interesting disquisitions, of per manent value as the views of an erudite legist and a practiced statesman. The paper on due diligence is remarkable for its profound and comprehensive view of that subject in its higher relation to the acts of sovereign States, In this paper, he thoroughly exposes the fallacy of the argument of Sir Eoundell Palmer, Avhich would lower the generality and the greatness of the Treaty Eules to the level of the municipal law of Great Britain.. And now, having reviewed the stipulations of the Treaty in this respect, the debates attending it both before and after its conclusion, the proceedings of the Tribunal of Arbitration, and the separate opinions of the Arbitrators, we come to the consideration of what ALABAMA CLAIMS. 153 they actually decided, the immediate effect of the De cision, and the general- relation thereof to Great Brit ain, to the United States, and to the other Govern ments of Europe and America, REVIEW OF THE DECISION OF THE TRIBUNAL ON NATIONAL LOSSES. To begin, let us see what was the true thought of the Tribunal regarding the class of claims, as to which the British Government displayed so much superflu ous emotion subsequently to the publication of the American Case, and which the Tribunal passed upon, in effect, without previous decision whether they were or were not embraced in the Treaty. I have already called attention to the fact that no consideration of direct or indirect, immediate or conse quential, appears in that opinion of the Tribunal. The Arbitrators express a conclusion, not the reasons of the conclusion. We might, it is true, easily infer those reasons from the language in which the conclu sion is expressed. That language excludes all such trivial questions as whether " direct " or " indirect," and invokes us to seek for the unexpressed reasons in some higher order of ideas. Meanwhile we have, at length, in the final " Decision," means of ascertaining the whole thought of the Tribunal. The Arbitrators had to pass on a claim of indemni ty for the costs of pursuit of Confederate cruisers by the Government : — a claim admitted to be within the jurisdiction of the Tribunal, and which the Tribunal rejects on the ground that such costs "are not, in-the 154 THE TREATY OF WASHINGTON. judgment of th.e Tribunal, properly distinguishable from the general expenses of the war carried on ,by the United States." Here, the major premise is assumed as already de termined or admitted, namely, that " the general ex penses of the war " are not to be made the subject of award. Why not? Because such expenses are in the nature of indirect losses ? No such notion is in timated. Because the claim, as being for indirect losses, is not within the purview of the Treaty ? That is not said or implied. Because such a claim is be- - yond the jurisdiction of the Tribunal ? No : for the Tribunal takes jurisdiction and judges in fact. The question then remains, — why is a claim for losses pertaining to the general expenses of the- war to be rejected? There can be no mistake as. to the true answer. It is to be found in the preliminary opinion expressed by the Arbitrators. The Tribunal, in that opinion, says that the contro verted [the so-called indirect] claims " do not consti tute, upon the principles of international law applica- .ble to such cases, good foundation for an award of compensation or computation of damages between na tions." Why does not the injury done to a nation by the destruction of its' commerce, and by the augmenta tion ofthe duration and expenses of war, constitute " a good foundation for an award of compensation or com putation of damages between nations ?" The answer is that such subjects of reclamation are " not properly distinguishable from the general expenses of war," ALABAMA CLAIMS. I55 Let US analyze these two separate but related opinions, and thus make clear the intention of the Tribunal, It is this : The injuries done to a Belligerent by the failure of a Neutral to exercise due diligence for the prevention of belligerent equipments in its ports, or the issue of hostile expeditions therefrom, in so far as they are in juries done to the Belligerent in its political capacity as a nation, and resolving themselves into an element of the national charges of war sustained by the Bel ligerent in its political capacity as a nation, do not, " upon the principles of international law applicable to such cases " [excluding, that is, the three Eules], constitute " good foundation for an award of compen sation or computation of damages between nations," Such, in my opinion, is the thought of the Arbitra tors, partially expressed in one place as to certain claims of which they did not -take jurisdiction, and partially in another place as to others of which they did take jurisdiction, — the two partial statements be ing complementary one of the other, and forming to gether a perfectly intelligible and complete judgment as to the whole matter. The direct effect of the judgment as between the United Sta,tes and Great Britain, is to prevent either Government, when a Belligerent, from claiming of the other, when a Neutral, " an award of compensation or computation of damages" for anj^ losses or additional charges or " general expenses of war," which such Bel ligerent, in its political capacity as a nation, njay suf fer by reason of the want of due diligence for* the 156 THE TREATY OF WASHINGTON. prevention of violation of neutrality in the ports of such Neutral, That is to say, the parties to the Treaty of Washington are estopped from claiming compensation, one of the other, on account of the na tional injuries occasioned by any such breaches of neutrality, not because they are indirect losses, — for they are not, — but because they are national losses, losses of the State as such. And each of us may, in controversies on the same point with other nations, allege the moral authority of the Tribunal of Geneva. But", while national losses incurred by the Bellig erent as a State in consequence of such breaches of neutrality are not to be made the subject of " com pensation or computation of damages," all private or individual losses may be, under the qualifications and limitations as to character and amount found by the Tribunal, and which will be explained in treating of that part of the Decision. These conclusions are the inevitable result of care ful comparison of the several claims with the several decisions. True it is, the national claims of indem nity for the cost of the pursuit of the Confederate cruisers happened to come before the- Tribunal asso ciated with strictly private claims, and the strictly private claims on account of payment of extra war premiums associated with national claims ; but these are perfectly immaterial incidents, which do not in any way affect appreciation of the opinions of the Tribunal, Another subject of reflection suggests itself, in comparing the respective decisions on national and ALABAMA CLAIMS. 157 on private losses, produced by the failure of a Neu tral to maintain neutrality. We asserted the responsibility of Great Britain for the acts of such of the Confederate cruisers as came within either ofthe three Eules, just as if those cruisers had been fitted out or supplied by the Brit ish Government, to the extent at least of the prizes of private property which those cruisers made. That was the, theory of imputed responsibility. Any cruis er enabled to make prizes by the fault of the Brit ish Government was to be regarded as pro tanto a British cruiser, and Great Britain, in the words of the British Counter-Case, "treated [in that respect] as a virtual* participant in the war," The Tribunal seems to have so held; that is, in regard to the losses of individual citizens of the United States, Moreover, it was argued on both sides, as by com mon consent, that the question between the two Governments was one of Avar, commuted for indem nity, " Her [Great Britain's] acts of actual or constructive com plicity with the Confederates," says the American Argument, " gave to the IJnited States the same right of war against her, as in similar circumstances she asserted against the Nether lands. " "We, the United States, holding those rights of war, have relinquished them to accept instiead the Arbitration of this Tribunal. And the Arbitration substitutes correlative legal damages in the place of the right of war." "This position is clearly stated in the British Coun ter-Case .as follows : "Her Majesty's Government readily admits the general 158 THE TREATY OF WASHINGTON. " principle that, where an injury has been done by one nation "to another, a claim for some appropriate redress arises, and " that it is on all accounts desirable that this right should be ''satisfied by amicable reparation instead of being enforced by " war. All civil society reposes on this principle, or on a prin- " ciple analogous to this ; the society of nations, as well as that " which unites the individual members of each particular com- '' monwealth." Now the capture of private property on the seas, it can not be denied, is one of the methods of public war. Whether such capture be made by letters of marque, or by regular men-of war, is immaterial ; in either form it increases the resources of one Belliger ent and it weakens those of the other; and if the Neutral fits out [or, in violation of neutral duty, suf fers to be fitted out in its ports, which is the same thing] cruisers in aid of one of the Belligerents, such Neutral becomes a virtual participant in the war, not only prolonging it and augmenting its expenses, but perhaps producing decisive ' effects adverse to the other Belligerent, These are the national losses, or, as the British Government insists, the indirect losses, inflicted by neglect or omission to discharge the ob ligations of neutrality. In deciding that such losses, — that, in general, the national charges of war, — can not by the law of nations be regarded as "good foundation for an award of compensation or computation of damages between nations," the Tribunal in effect relegated that question to the unexplored field of the discre tion of sovereign States. Claims of indemnity for the national losses grow- ALABAMA CLAIMS. 159 ing out of a state of war being thus disposed of, we arrive at the great class of private losses, which chief ly occupied the time of the Tribunal, DECISION AS TO PRIVATE LOSSES. The Arbitrators, assuming that, pursuant to the command of the Treaty, they are to be governed by the three Eules, and the principles of international law not incompatible thercAvith, proceed to lay down the following prefatory positions, namely : 1. "The 'due diligence' referred to in the first and third of the said Rules, ought to be exercised by neutral Governments in exact proportion to the risks to which either of the Belliger ents may be exposed from a failure to fulfill the obligations of neutrality on their part. 2. " The circumstances, out of which the facts constituting the subject-matter of the present controversy arose, were of a na ture to call for the exercise on the part of Her Britannic Maj esty's Government of all possible solicitude for the observance of the rights and the duties involved in the proclamation of neutrality issued by Her Majesty on the 13th day of May, 1861. 3. " The effects of a violation of neutrality committed by means of the construction, equipment, and armament of a ves sel are not done away with by any commission which the Gov ernment of the belligerent Power benefited by the violation of neutrality may afterward have granted to that vessel ; and the ultimate step, by which the offense is completed, can not be admissible as a ground for the absolution ofthe offender; nor can the consummation of his fraud become the means of estab lishing his innocence. 4. "The privilege of ex-territoriality accorded to vessels of war has been admitted into the laws of nations, not as an ab solute right, but solely as a proceeding founded on the princi ple of courtesy and mutual deference between different na tions, and therefore can never be appealed to for the protec tion of acts done in violation of neutrality. THE TREATY OF WASHINGTON. 5. " The absence of a previous notice can not be regarded as a failure in any consideration required by the law of nations, in those cases in which a vessel carries with it its own con demnation. 6. "In order to impart to any supplies of coal a character inconsistent with the second Rule, prohibiting the use of neu tral ports or waters, as a base of naval operations for the Bel ligerent, it is necessary that the said supplies should be con nected with special circumstances of time, of persons, or of place, which may combine to give them such character," Keeping in view these rules of construction, the Tribunal proceeds to judge the British Government in regard to each of the Confederate cruisers before them. As to the Alabama, originally "No, 290," construct ed in the port of Liverpool and armed near Terceira, through the agency of the Agrippina and Bahama, dispatched from Great Britain to that end, the Tri bunal decides that the British Government failed to use due diligence in the performance of its neutral obligations: I. Because " it. omitted, notwithstanding the warnings and official representations made by the diplomatic agents- of the "United States during the construction ofthe said ' No. 290,' to take in due time any effective measures of prevention, and that those orders which it did give at last, for the detention of the vessel, were issued so late that their execution was not prac ticable ;" 2. Because, " after the escape of that vessel, the meas ures taken for its pursuit and arrest were so imperfect as to lead to no result, and therefore can not be considered sufficient to release Great Britain from the responsibility already in curred;" 3. Because, "in despite ofthe violations ofthe neu trality of Great Britain committed by the ' 290,' this same ves sel, later known as the Confederate cruiser Alabama, was on several occasions fteely admitted into the ports of Colonies of ALABAMA CLAIMS. 161 Great Britain, instead of being proceeded against, as it ought to have been, in any and every port within British jurisdiction in which it might have been found ;" 4, And because " the Government of her Britannic Majesty can not justify itself for a failure in due diligence on the plea of the insufficiency of the legal means of action which it possessed." As to the Florida, originally called Oreto, the Tri bunal decides that the British Government failed to use due diligence to fulfill its duties : 1. Because "it results from all the facts relative to the con struction of the Oreto in the. port of Liverpool, and to its issue therefrom, which facts failed to induce the Authorities in Great Britain to resort to measures adequate to prevent the violation of the neutrality of that nation, notwithstanding the warnings and repeated representations of the Agents of the United States;" 2. Because "it likewise results from all the facts rela tive to the stay of the Oreto at Nassau, to her issue from that port, to her enlistment of men, to her supplies, and to her arma ment with the co-operation of the British vessel Prince Alfred at Green Cay, that there was negligence on the part of the British Colonial Authorities ;" 3. Because, " notwithstanding the violation of the neutrality of Great Britain committed by the Oreto, this same vessel, later known as the Confederate cruiser Florida, was nevertheless on several occasions freely admitted into the ports of British Colonies ;" and, 4. Because " the judicial acquittal of the Oreto at Nassau can not relieve Great Britain from the responsibility incurred by her under the principles of international law ; nor can the fa6t of the entry of the Florida into the Confederate port of Mobile, and of its stay there during four months, extinguish the responsibility previous to that time incurred by Great Britain." As to the Shenandoah, originally called the Sea King, the Tribunal decides that the British Govern ment is not chargeable with any failure in the use of due diligence to fulfill the duties of neutrality respect- L 162 THE TREATY OF WASHINGTON. ing her during the period of time anterior to her en try into the port of Melbourne : but — "That Great Britain has failed, by omission, to fulfill the du ties prescribed by the second ahd third of the Rules aforesaid, in the case of this same vessel, from and after her entry into Hobson's Bay, and is therefore responsible for all acts commit ted by that vessel after her departure from Melbourne, on the I8th day of February, 1865." * The Tribunal further decides as to the Tuscaloosa, tender to the Alabama, and as to the Clarence, the Tacony, and the Archer, tenders to the Florida : "That such tenders or auxiliary vessels being properly re garded as accessories, must necessarily follow the lot of their principals, and be submitted to the same decision which ap plies to them respectively." As to the other vessels accused, namely, the Retri bution, Georgia, Swnter, Nashville, Tallahassee, and Chichmmuga, the Tribunal decided " that Great Brit ain has not failed, by any act or omission, to fulfill any of the - duties prescribed by the three Eules of Article VI. in the Treaty of Washington, or by the principles of international law not inconsistent there with." Thus far the Tribunal had dealt only Avith the cout siderations of law and of fact applicable to the gener al question of the naked legal responsibility of Great Britain. As preparatory to the ulterior question of the sum to be awarded to the United States by way of indem nity, the Tribunal decides ; 1. " That prospective earn ings can not properiy be made the subject of compen- ALABAMA CLAIMS. 163 sation, inasmuch as they depend in their nature upon future and uncertain .contingencies ;" 2. " In order to arrive at an equitable compensation for the dama ges which have been sustained, it is necessary to set aside all double claims for the same losses, and all claims for 'gross freights' so far as they exceed 'net freights ;' " 3. " It is just and reasonable to allow in terest at a reasonable rate." Finally, the Tribunal, deeming it preferable, in ac cordance with the spirit and the letter of the Treaty of Washington, to adopt the form of adjudication of a sum in gross rather than to refer the subject of compensation to Assessors, concludes as follows : "The Tribunal, making use ofthe authority conferred upon it by Article VIL of the said Treaty, by a majority of four voices to one, awards to the "United States the sum of fifteen millions five hundred thousand dollars in gold as the indemni ty to be paid by Great Britain to the United States for the satisfaction of all the claims referred to the consideration ofthe Tribunal, conformably to the provisions contained in Article VH. of the aforesaid Treaty. " And, in accordance with the terms of Article XL of the said Treaty, the Tribunal declares that ' all the claims referred to in the Treaty as submitted to the Tribunal are hereby fully, perfectly, and finally settled.' " Furthermore, it declares that each and every one ofthe said claims, whether the same may or may not have been presented to the notice of, or made, preferred, or laid before the Tribunal, shall henceforth be considered and treated as finally settled, barred, and inadmissible." It deserves to be remembered that the British Ar bitrator, and he alone, refused to sign the Decision. No good reason appears to justify this refusal, seeing 164 THE TREATY OF WASHINGTON. that the signature is but authentication, and the body of the Decision sets forth all the differences of opinion existing among the Arbitrators. Thus, Mr. Adams and Mr. Stsempfli were overruled on two questions ; and yet they signed the Act. So the Vicomte d'lta- jubd was overruled on the great question of the lia bility of Great Britain for the Shenandoah ; and yet he signed the Act. In separating himself from his colleagues in this respect, the British Arbitrator ex hibited himself as what he was, as most of his ac tions in the Tribunal demonstrated, — as his subse quent avowal established, — not so much a Judge, or an Arbitrator, as the volunteer and officious attor> ney of the British Government. EFFECT OF THE AWARD. In reflecting on this Award, and seeking to deter mine its true construction, let us see, in the first place, what it actually expresses either by inclusion or ex clusion. The Award is to the United States, in conformity with the letter of the Treaty, which has for its well- defined object to remove and adjust complaints and claims " on the part of the United States." But the history of the Treaty and of the Arbitra tion shows that the United States recover, not for the benefit of the American Government as such, but of such individual citizens of the United States as shall appear to have suffered loss by the acts or neglects of the British Government. It is, however, not a spe cial trust legally affected to any particular claim or ALABAMA CLAIMS. 165 claimants, but a general fund to be administered by the United States in good faith, in conformity with their own conceptions of justice and equity, within the range of the Award. If, according to any theory of distribution adopted by the United States, the sum awarded prove inadequate, we have no claim on Great Britain to supply the deficiency : on the other hand, if the Award should prove to be in excess, we are not accountable to Great Britain for any balance. On this point, precedents exist in the diplomatic his tory of Great Britain herself. The Tribunal does not afford us any rules of limit ation affecting the distribution of the Award, un less in the declaration that "prospective earnings," " double claims " for the same losses, and " claims for gross freights, so far as they exceed net freights," can not properly be made the subject of compensation, — that is to say, as against Great Britain, Nor does the Tribunal define affirmatively what claims should be satisfied othervvise than in the com prehensive terms of the Award, which declares that the sum awarded is "the indemnity to be paid by Great Britain to the United States fo.r the satisfac tion of all the claims referred to the consideration of the Tribunal, conformably to the provisions contained in Article VII, of the aforesaid Treaty." The Arbitrators, — ^be it observed, — do not say for the satisfaction of certain specific claims among those referred to the consideration of the Tribunal, but of " all the claims " so referred conformably to the pro visions of the Treaty, 166 THE TREATY OF WASHINGTON. Now, the practical question which arises is wheth er the schedules of claims, which were presented to the Tribunal as documentary proofs on the part of the United States, are conclusive, either as to what they contain or what they do not contain, to establish rules of distribution under the Avvard. This point: is settled by what occurred in discus sions before the Tribunal. Great Britain had presented a table, composed in large part of estimates, appreciations, and arbitrary or suppositious averages: in consequence of which the United States presented other tables, to which the British Agent objected that these tables compre hended claimants, and subjects of claim, not comprised in the actual schedules filed by the United States : to which the American Agent replied by showing that the Tribunal had before it, in virtue of the Treaty, all the reclamations made by the United States in the interest of individuals injured, and comprised un der the generic name' of Alabama Claims [le tribunal reste saisi de la question de toutes les reclamations faites par les Etats-Unis dans I'interet des individus leses, et comprises sous le nom generique de reclama tions de V Alabama']. Some discussions on the same subject afterward oc curred between Mr. Stsempfli and Sir Alexander Cock burn, which conclusively prove that the result reached did not accept as binding either the tables presented by the United States or the deductions therefrom claimed by Great Britain. The estimate of Mr. Stsempfli seems to have been the basis of conclusion ; ALABAMA CLAIMS. 167 and that estimate is founded on dividing the differ ence between the American estimate of $14,437,000, and the British estimate of $7,'O74,000, the mean of which is $10,905,000 : which mean does not in any sort represent the actual claims of the United States. Indeed, one of the Arbitrators expressly declared that, in arriving at a conclusion, the Arbitrators were not to be regarded, as making an assessment, or con fining themselves to the schedules, estimates, or tables of either of the two Governments. Whether the sum awarded be adequate, depends, in my opinion, on whether distribution be made among actual losers only and citizens of the United States. ALUDITY OF THE AWARD. The principles of the Award-are in conformity Avith the Eules of the Treaty, which do but embody in pre cise language the traditional policy, inaugurated by Washington with the active support of Jefferson, pro fessed by every successive President of the United States, and authenticated by repeated Acts of Con gress. That Great Britain loyally accepts the Award, and will in due time pay to the United States the amount awarded, it is impossible to doubt. The Queen's spe.ech, at the opening of the present session of Par liament, not only declares the acquiescence of the British Government in the Award, but also recom mends speedy payment in conformity with the tenor of the Treaty, And while prominent members of both Houses, 168 THE TREATY OF WASHINGTON. such as the Earl of Derby, the Marquess of Salisbury, and Lord Cairns, in the House of Lords, and, in the House of Commons, 'Mr. Disraeli, Mr. Horsman, and others, spoke complainingly of the Treaty, and of the new Eules, rather than of the- Award, yet Lord Gran ville, the "Marquess of Eipon, and the Lord Chancel lor, in one House, and Mr. Gladstone, Mr. Laing, Mr. Lowe, and others, in the other, House, defended the whole transaction with its results, as alike beneficial to Great Britain and the United States. Among the discontented persons is Mr. Laird, who finds himself characterized as one of those who prefer "private gain to public honor," and who seems to think that the Government of that day did not in- vesidgate him and his family so much as it might and should have done to the end of detecting and expos ing the false pretenses with which they covered up the illegal destination of the Alabama. Lord Eedes- dale also continues to mourn over the insensibility of the British Government to his partnership argu ment, and refuses to be comforted, although the Gov ernment did, in fact, present the argument with all ppssible seripusness in the British Cpunter-Case and elsewhere, in season to have it distinctly responded to by the Counsel of the United States (Argument, p. 479 and seq.), and considered or not considered by the Tribunal. The elaborate speeches of the Earl of Derby and Mr. Disraeli sufficiently indicate the footing on which objection to the Treaty and to the Award is to be placed in England. Little is said in criticism of the ALABAMA CLAIMS. 169 amount awarded as indemnity. Earl Granville, in deed, does not fail to remind the Earl of Derby ofthe admission made by the latter in the House of Com mons, to the effect that the Americans were very likely to establish their claims, or some of them at least, and to get their money. This admission on the part of Lord Stanley evinced his manliness and truth fulness. Even the Chief Justice at Geneva was forced to concede the responsibility of Great Britain for the acts of the Alabama, and did not very skillfully es cape making the same concession as to the Florida. , The marvel is, that Lord Eussell should have so persistently refused to agree to any terms of redress, Avhen he himself could write to Lord Lyons on the 27th of March, 1863, " that the cases of tihe Alabama and Oreto were a scandal, and, in some degree, a re proach to our laws." I demand of myself soinetimes, in reflecting on the strange obstinacy of Lord Eussell in this respect, as contrasted with the conduct of the Earl of Derby, the Earl of Clarendon, and Earl Gran ville, whether there be not some mystery in the mat ter, some undisclosed secret, some unknown moral co ercion, to account for and explain the conduct of Lord Eussell ? The extraordinary incident of the failure of the Government to obtain from the Law Officers of the Crown any response to the call for their opin ion in season to detain the Alabama, — which incident Sir Eoundell Palmer vainly attempted to explain at Geneva, — would really tend to make one suspect that some member of the Government more powerful than himself had defeated those good intentions of Lord 170 THE TREATY OF WASHINGTON. Eussell, with which he is credited by Mr. Adams. May it not have been, must it not have been. Lord Palmerston ? Is Earl Eussell solely responsible for the deplorable errors of that Administration ? * * I repeat, in Great Britain issue. is not to be made on the ' pecuniary part of the Award, but on the construction of the opinions expressed and the legal conclusions arrived at by the Tribunal of Arbitration. The opinions of aU the Arbitrators in the case of the Alaba- ma, including that ofthe British Arbitrator, are concurrent' to the effect that, by reason of the mendacity of her builders, the Lairds, co-operating with corruption, negligence, or stupidity on the part of the Board of Customs, the British Government was made responsible for the depredations committed by her on the commerce of the United States. But the circumstances of the actual escape of the Alabama reveal a singular imperfection in the administrative mechanism of the British Government. On the 23d of July, 1862, the British Government was aroused from its indifference in regard to the equipment of the Alabama, by receiving, from Mr. Adams, with some other papers, an opinion of a Queen's Counselor, Mr., now Sir Robert, Collier, to the effect that, if the Alabama were suffered to de part, the Board' of Customs and the Government would incur "heavy responsibility." The case had become urgent. The Alabama might sail at any .moment. Lord John Russell has tened to hide himself under the robes of the " Law Officers of the Crown," — that is to say, Sir John Harding, the Queen's Ad vocate-General ; Sir "William Atherton,.the Attorney-General; and Sir Roundell Palmer, the Solicitor-General. But the oracles did not speak until the 29th of July, and then advised detention; in consequence of which, on the morn ing of that day, the Alabama, whose managers appear to have had intimate knowledge of every step taken or not taken by the Government, departed from Liverpool. Lord John Russell, in a conference with Mr. Adams on the 31st of July, imputed this misadventure to "the sudden devel- ALABAMA CLAIMS. 171 It deserves to be noted in this relation that al though Edwards and possibly some other of the pub- opment of a malady of the Queen's Advocate, Sir John D. Harding, which had utterly incapacited him for the , transaction of business. This," he added, " had made it necessary to call in other parties [he does not say, others of the Law Officers], whose opinion had been at last given for the detention of the gun-boat." The Counsel of the United States, in their Argument, invite attention to the unsatisfactoriness of this explanation. They found in the Documents annexed to the British Case eight opinions of the "Law Officers ofthe Crown," prior to that of July 29th, all of which, except one dated June SOth, are signed by Sir John Harding, aind also either by Sir "William Atherton or. by Sir Roundell Palmer. Thereupon, we inferred that, the Queen's Advocate had become sick on or before the 30th of June ; and we also inferred that " it was not necessary on the 29th of July to call in new parties, but only to call upon the old." These inferences were legitimate, and were confirmed in the sequel by the highest authority. But thereupon the British Arbitrator, after speaking of the last inference as " an ungenerous sneer," remarks : "The unworthy insinuation here meant to be conveyed is, that Lord Russell stated that which, was untrue, — an insin uation which will be treated as it deserves by every one who knows him. It is obvious that Mr. Adams must, in this par ticular, have misunderstood his Lordship." The Chief Justice unconsciously admits that if Lord Russell said this, "he stated that which was untrue," and expects us to disbelieve Mr. Adams in order to shield Lord Russell. I prefer to believe Mr. Adams. N-ay, the statement imputed to Lord Russell by Mr. Adams is in substance reaffirmed and adopted in the British Case [p. 118]. The senseless prejudice which fills the mind of the Chief Justice in reference to the United States, their Agent, and their Counsel, is rendered the more conspicuous here by the fact that, when be threw out this " ungenerous sneer" and this " un- 172 THE TREATY OF WASHINGTON. lie officers, whose negligence or fraud has reflected so seriously on the British Government, may have been worthy accusation" of his against the American Counsel, he had before him a statement on the subject, presented to the Tribu nal of Arbitration by Sir Roundell Palmer, as follows : " Sir John Harding was ill from the latter part of June, 1 862, and did not, after that time, attend to Government business. it was not, however, known, until some weeks afterward, that he was unlikely to recover ; nor did the disorder undergo, till the end of July, such a development as to make the Government aware that the case was one of permanent mental alienation. "Although, when a Law Officer was ill, he would not be troubled with ordinary business, it was quite consistent with probability and experience that, in a case of more than usual importance, it would be desired, if possible, to obtain the ben efit of his opinion. Under such circumstances, the papers would naturally be sent to his private house; and, if this was done, and if he was unable to attend to them, some delay would necessarily take place before the impossibility of his attending to them was known. "Lord Russell told Mr. Adams [July 31, 1862] that some delay had, in fact, occurred with respect to the Alabama in consequence of Sir John Harding's illness. He could not have made the statement, if the fact were not really so ; because, whatever the fact was, it must have been, at the time, known to him. The very circumstance that Sir J. Harding had not already advised upon the case in its earlier stage might be a reason why it should be wished to obtain his opinion. " Sir J. Harding and his wife are both [some years since] dead; so are Sir'W. Atherton [the then Attorney-General] and his wife ; no information, therefore, as to the circumstances which may have caused delay, with respect to the delivery at their private house, or the transmission and consideration of any papiers on this subject, can now be obtained from them. " The then Solicitor-General was Sii- R. Palmer, who is able to state positively that the first time he saw or heard of the papers sent to the Law Officers \i. e., all three Law Officers] on ALABAMA CLAIMS. 173 dismissed, yet it does not appear that any of the guilty parties, such as Laird, Miller, Thomas, Prioleau, the 23d and 25th or 26th of July, was on the evening of Mon day, the 28th of July, when he was summoned by the Attor ney-General, Sir W. Atherton, to consider them in consultation, and when the advice to be given to the Government was agreed upon." Sir R. Palmer thinks it his duty to add, that " no Gov ernment ever had a more diligent, conscientious, and laborious servant than Sir "W. Atherton ; and that it is in the last degree unlikely that he would have been guilty of any negligence or unnecessary delay in the consideration of papers of such im portance." "We thus learn that in the latter part of June, as the Amer ican Counsel had supposed. Sir John Harding was unable to attend to the business of the Government. Next, we are in formed that the papers might have been sent to his private house, to remain there unattended to ; but it is not asserted that they were so sent in fact. Nay, we are left to conjecture that they might have been sent to the house of Sir William Ather ton ; but it is not asserted that they were. Lideed, Sir Roundell Palmer speaks of " the delivery at thdr private house," mean ing apparently "houses." Next, we are asked to believe that, because of the death of " Sir J. Harding and his wife," and that of " Sir W. Atherton and his wife," no means exist to explain the fatal delay in this case, by reason of which so much loss and shame have been brought on Great Britain. "Was it ever before imagined that the death of an Advocate- General or an Attorney-General, and their wives, should leave a Government wholly without means of knowledge on such a subject, or should be put forward to explain such delay of ac tion on the part of Ministers ? "Who carried the papers to the house either of Sir John Harding or Sir William Atherton, or both ? Why did Lord Russell permit six days to elapse without inquiring for the an swer tp his reference when every hour was pressing for action ? Who brought the papers away from the place in which they were, whether the house of Sir J. Harding, or the house of Sir 174 THE TREATY OF WASHINGTON. or other Englishmen, whose false representations de ceived the British Government, and involved Great W. Atherton, if they ever went to either ? Why were they not sent to the house of Sir Roundell Palmer ? How did they ulti mately get into the hands of Sir William Atherton and ^ir Roundell Palmer ? Now, whatever Sir Roundell Palmer says I believe ; and his declaration shows that there is no more reason to suppose the papers were sent, either to Sir J. Harding or to Sir W. Ather ton, of which nothing is known, than that they were sent to Sir R. Palmer himself, to whom we know they were not sent, as he positively declares. Observe that Sir R. Palmer takes pains to commend the dili gence, conscientiousness, and industry of Sir W. Atherton, from which it is plain to infer that he never received the papers. Of course, the allusion to the death of him and his wife is as little to the purpose as that to the death of Sir J. Harding and his wife, or the insanity of Sir J. Harding. Another observation. According to Sir Roundell Palmer's statement, there were two successive references to the Law Officers, — on the 23d and the 25th or 26th. He implies that each of these references might have been communicated to Sir J. Harding and to Sir William Atherton. He does not speak ofthe insane Sir J.Harding alone, as Lord Russell does; but is careful to make excuse in like manner for the sane Sir W. Atherton. Now, when he was called in for consultation on the evening of the 28th, did it not occur to him to inquire why these sets of papers, each one of which ought to have been communicated to him at their respective dates, were not so communicated ? Why speculate on the effects of the insanity of Sir J. Harding or the integrity of Sir W. Atherton ? Why not as well lay before us conjectural inferences founded on the diligence or uprightness of him, Sir R. Palmer ? Should not the suppression of the papers as to himself have suggested to him that they had been suppressed as to Sir J. Harding and Sir W. Atherton ? We revert now to Lord Russell's statement to Mr. Adams, ALABAMA CLAIMS. 175 Britain in this perilous controversy with the United States, have ever been punished in any way. Indict- that the delay was caused by the insanity of Sir J. Harding, which made it necessary to call in other parties. What other parties?. Why, forsooth, the other two "Law Officers of the Crown" disguised by Lord Russell under the designation "other parties." But Sir R. Palmer assures us that the pa pers [if, indeed, they were sent at all] must have been sent originally "to the Law Officers, i.e., all three Law Officers." Lord Russell therefore had no more right to impute the delay to Sir J. Harding than to Sir W. Atherton ; for, even to this day, Sir R. Palmer can not say to which of the two, if to ei ther, the delay is iinputable. And yet Lord Russell implies that the delay was occasioned by the insanity of Sir J. Har ding, while neither he nor Sir R. Palmer ventures to affirm that the papers were ever sent to Sir J. Harding. In view of all these imperfect and irreconcilable statements, the presumption remains that some person in the Government had the means of traversing its intention, and withholding these papers from all the three Law Officers until the Alaba ma was ready to sail. I do not say Lord Russell was that person ; but I think he knows who it was ; and if he desires to vindicate his honor, of which he and the Chief Justice say so much, he will best do it, not by "sneers" at the American Counsel, but by disclosing the name of the person in the For eign Office who thus betrayed and dishonored the Govern ment. All questions depending on this incident are now termi nated. But the incident itself has permanent value as illus trating the weakness of the British Government on the side of its so-called " Law Officers," — that is, busy members of the Bar, distracted by their private practice, but in whose opin ions the Government lives and moves; who have "papers sent " to them by the Government in every great emergency, without their being actual and ever present members of the Government, like the " Law Officers " of the United States. Here, in the United States, as in the case of the Maury, for 176 THE TREATY OF WASHINGTON. ments were, indeed, found against some inferior per sons, but not against the responsible authors of the loss and shame which the Alabama and the Florida brought on Great Britain. Traces occasionally appear in the journals of London of some discontent on the part of tax-payers, who are now called on to respond to the United States for the dishonorable gains of the Lairds and the Millers. Expressions of sentiment in this respect appear in the recent debates in the House of Commons. Indeed, if an account were taken of the injury inflicted on the British people by the actual losses in Confederate bonds purchased in Great Britain, and the profits lost on bonds of the United States not purchased there and sold instead in Ger many; the losses on British ships and cargoes cap tured in attempting to run the blockade of Southern ports ; the payment by the Government to the United instance, " papers are presented to the Secretary of State by the British Minister on the 11th day of October, 1855, alleg ing unlawful equipment in violation of neutrality by that ves sel ; the papers are sent to the Attorney-General on the 12th, and on the same day orders are given by telegraph to embar go the vessel, and are actually executed on the 13th at New York. Mr. Fawcett has not without reason called the attention of the House of Commons to this defect in the conduct ofthe law business of the British Government. The reply th^t the At torney or Solicitor General should be allowed to continue- in private business, in order to possess competent knowledge for the conduct of the business of the Government, is quite pre posterous; it would be just as reasonable to insist that the Lord Chancellor or the Chief Justice of the Queen's Bench must continue at the Bar. ALABAMA CLAIMS. 177 States of indemnity for the captures made by the Ala bama, the Florida,. siad the Shenandoah; the rise in the cost of cotton and naval stores, and the conse quent losses to commerce, to manufactures, and to la bor, in Great Britain, occasioned by the prolongation of our Civil War : in reflecting on all this, it will be perceived that the hasty issue of the Queen's Procla mation, which gave to the Confederates a standing in Great Britain, and the means and spirit to continue hostilities, was an ill-advised measure, hardly less in jurious to Great Britain than it was to the United States. These are matters which, as questions of di plomacy between the two Governments, the Treaty of Washington and the Award of the Tribunal close Up ; but they remain as historical facts, full of admoni tion to all Governments. Discite justitiam rrioniti. FILIBUSTER OBJECTIONS. Do the Eules, as construed by the Decision of the Treaty, disclose that due diligence, voluntary dili gence, in the discharge of neutral duties, has relation to the exigency, and that the failure therein is not ex cusable by the insufficiency oistatnite means of action? So thought Washington and Jefferson. They acted, when no statute existed. Tt avails nothing to say that ours is a constitutional government, with legal forms which impede administrative action. If Con gress has not imparted to the Executive adequate powers, — if, for want of such fit legislation, the Exec utive can not act effectively in some given cases to prevent illegal expeditions, — if, in consequence there- M 178 THE TREATY OF WASHINGTON. of, the subjects of any friendly State are injured, — if, in a word, we should be so foolish as to insist on the privilege of possessing laws designedly imperfect, and which thus favor the violation of law, and which are insufficient to enable the President to discharge the international obligations of the United States, — then it is proper that we should pay for the enjoy ment of such a privilege by answering to any friendly Power for the injurious consequences of our self im posed impotency to perform the necessary duties of an independent sovereign State, There is no difficulty whatever in the question. If, on the one hand, in the case of war between two other Powers, the United States desire and intend to be neutral, it is to be hoped they will not suffer themselves to be misled by the interests of some ship builders, or the wild schemes of some band of advent urers, foreign or domestic, or even by the sentiment of sympathy for this or that fpreign cause, into per mitting violations of the law of the land and of the rights of other States, If, on the other hand, the United States at any time desire or intend to go to war with some foreign Power, whether for induce ments of sentiment or for objects of ambition, it is to be hoped they will manfully say so, in the face of the world, and will not snekk into national hostilities by means of the expeditions or equipments of private persons, citizens or foreigners, conducting war in dis guise while the Government falsely pretends to be at peace, AU such "national activities," — that is, acts of filibusterism, — whether fraudulently encouraged or ALABAMA CLAIMS. 179 insufficiently discouraged by any Government, are in deed fettered by the three Eules, as they were al ready, so far as morality or laAV could do it, being classed by statute with piracy, perjury, arson, murder, and other kindred " Pleas of the Crown." True, there is tendency of opinion in the United States, as there is in Great Britain, to think that all rebellion is pre sumptively wrong at home, and that all rebellion is presumptively right every where else; but that is a theory which has its inconveniences. In a word, there is no possible view ofthe subject in ^hich filibuster- ism is not a crime and a shame, without even the mean excuse of possible but dishonorable benefits to the United States. At all times, under all adminis- tra,tions, private eiquipments in our ports, for the pur pose of hostilities against any country with which we were at peace, have been treated as what they are, criminal violations of the law of the land and of the law of nations. Statesmen, jurists, and tribunals are all of accord on this point. Contracts for such equip ments are " so fraught with illegality and turpitude as to be utterly null and void." ..." There can be no question of the guilt and responsibility of a Govern ment which encourages or permits its private citizens to organize and engage in such predatory and unlaw ful expeditions against a State with which that Gov ernment is at- peace." ..." This principle is univers ally acknowledged by the law of nations. It lies at the foundation of all Government. It is, however, more emphatically true in relation to citizens of the United States." Such was the doctrine of the United 180 THE TREATY OF WASHINGTON. States of old : such is their doctrine now, neither more nor less by reason of our negotiation with Great Britain, SALE OF ARMS NOT AFFECTED BY THE TREATY OR THE AWARD. Some persons haA^e supposed that the Treaty affects the question of the sale of arms or naunitions of war to a Belligerent, That is an error. Wherever, as be tween the parties to the Treaty, the sale of arms was lawful before, it is lawful now ; wherever it is unlaw ful now, it was unlawful before. That is a question to which the action of the German Embassador in Great Britain during the late war between France and Germany has drawn the attention of all Europe, and which is certain to acquire importance in any future great war ; but it is not touched, in fact, by the Treaty of Washington, and did not come before the Tribunal of Geneva, QUESTION OF SUPPLIES OF COAL. One specific objection to the 'Eules of the Treaty, and only one, of any apparent force, has passed under my observation, that ofthe Austrian statesman. Count von Beust : the suggestion, namely, as to the second Eule, relative to ooaUng. and refitting in neutral ports, which, it is alleged, " gives to England, through her possession of neutral stations in all parts of the world, a palpable advantage over other States, which have not the same facilities at command." This objection is one of apprehension, rather than ALABAMA CLAIMS. 181 of fact. When the United States and Great Britain shall, in conformity with the Treaty, bring the new Eules to the knowledge of other maritime Powers, such Powers will of course present for consideration all proper objections or qualifications to those Eules. Count von Beust goes on to speak of the declara tion made by Austria, Prussia, and Italy in 1866, which indicates that he was considering the subject in the relation of contraband rathev than of simple re fitting in neutral ports. But the precise question of the supply of coal in neutral ports is not prejudged by the Treaty of Washington, nor by the opinions of the Tribunal of Arbitration. The United States are quite as much interested in having access to supplies of coal " at neu tral stations in all parts of the world " as Austria, or Prussia, or Italy; and we may presume that Count Sclopis did not fail to reflect on the interests of Italy in this behalf One of the " Considerants" of the Award had for its special object to prevent misconstruction of the second Eule. We quote it as follows : " In order to impart to any supplies of coal a character in consistent with the second Rule, prohibiting the use of neu tral ports or waters as a base of naval operations for a Bellig erent, it is necessary that the said supplies should be connect ed with special circumstances of time, of persons, of place, which may combine to give them such character." Count' Sclopis explains the force of the Decision as follows : " Quant a la question de I'approvisionnement et du charge- ment de charbon, je ne saurais la traiter que sous le point de 182 THE TREATY OF WASHINGTON. vue d'un cas connexe avec I'usage d'une base d'operations na- vales dirigees contre I'un des Belligerants, ou d^un cas flagrant de contrabande de guerre. Je ne dirai pas que le simple fait d'avoir allou6 une quantity de charbon plus forte que celle n6- cessaire aux vaisseaux pour regagner le port de leur pays le plus voisin, constitue a lui seul un grief suffisant pour donner lieu k une indemnity. Ainsi que le disait le Ch^ncelier d'Angleterre, le 12 Juin, 1871, a la Chambre des Lords, I'Angleterre et les Etats Unis se tiennent egalement attaches au principe pratique qu'il n'y a pas violation du droit des gens en fournissant des armes aux Belligerants. Mais si cet exc6dant de proportion dans I'approvisionnement de charbon vient se joindre k d'autres circonstances qui marquent qu'on s'en est servi comme d'une veritable res hostilis, alors il y a infraction k la deuxi5me R^gle de 1' Article "V"I. du Trait6. C'est dans ce sens aussi que le m^me Lord Chancelier expliquait dans le discours precite la port6e de la dernifere parte de la dite Rfegle." The same point is treated by Mr, Adams as fol lows : ^ " The supply of coals to a Belligerent involves no responsi bility to the Neutral, when it is made in response to a demand presented in good faith,, with a single object of satisfying a le gitimate purpose, openly assigned, " On the other hand, the same supply does involve a respon sibility if it shall in any way be made to appear thatf the con cession was made, either tacitly or by agreement, with a view to promote or complete the execution of a hostile act. " Hence I perceive no other way to determine the degree of the responsibility of a Neutral in these cases, than by an exam ination of the evidence to show the intent of the grant in any specific case. Fraud or falsehood in such a case poisons every thing it touches. Even indifference may degenerate into will ful negligence, and that will impose a burden of proof to excuse it before responsibility can be relieved." Mr, Adams, it will be noted, dwells on the ques tion of intent in this matter, as he does, indeed, in ALABAMA CLAIMS. 183 each one of his opinions, to the contrary of the line of reasoning followed by the British Arbitrator. Finally, in assenting to the Decision, the Viscount of Itajubd remarked that, " with regard to the supply of coal, he is of opinion that every Government is free to furnish to the Belligerents more or less of that article." Thus, the tenor of the Decision of the Tribunal, and the commentaries of the Arbitrators thereon, combine to show that the second Eule can not have the effect ascribed to it by Count von Beust. Besides which, the latter greatly errs in supposing that the numerous naval stations possessed by Great Britain in different parts of the globe give to her so much advantage to the prejudice of other maritime Powers. She pays dearly for such benefits as she herself derives from those establishments, in the cost of maintaining them, whether in peace or in war; and if, while in a state of neutrality herself, she re fuses hospitality to others [and she must do it to all, if she does to one], she forces other Powers to ac quire similar establishments to be conducted with equal exclusiveness, or she is constrained to incur the risk of the charge of partiality as between several Belligerents. Hence, it is not for the interest of oth er Powers to overstretch the responsibilities of Great Britain in this respect; and. it is for her interest to deal justly and impartially with such other Powers. Great Britain was not condemned by the Tribunal because of the supply of coals to Confederate cruisers in her Colonial ports, nor merely because those cruis- 184 THE TREATY OF WASHINGTON. ers were permitted to pervert the privilege of hospi tality into making a base of operations of Nassau or of Melbourne. The recognized fault in the matter of the Shenandoah was mainly the augmentation of her crew at Melbourne, and the addition of equip ments, without which she could not have operated as a cruiser in the North Pacific. In the case of the Alabamu, and especially that of the Florida, the fault was in allowing them to come and go unmolest ed, and even favored, in the Colonial ports, when the British Government could no longer pretend to be ignorant of their originally illegal character, nay, when it was now fully aware of what Mr. Adams calls the " continuous, persistent, willful, flagrant false hood and perjury," and the " malignant fraud," which attended the equipment of the Confederate cruisers in Great Britain. It was this class of facts, and not any such secondary consideration as the supply of coal, which turned the scale against Great Britain in the opinions of the Arbitrators. No : neither the Treaty of Washington, with its Eules, nor the Decision of the Tribunal of Geneva, has inaugurated any new policy of neutrality in the United States, nor created for them any rights or any duties not previously possessed by and incum bent on the Government. WHAT THE UNITED STATES HAATE GAINED BY THE AWARD. What, then, it may be asked, have the United States gained by the Treaty of Washington, and by the Arbitration ? ALABAMA CLAIMS. 185 We have gained the vindication of our rights as a Government ; the redress of the wrong done to our citizens ; the political prestige, in Europe and Amer ica, of the enforcement of our rights against the most powerful State of Christendom; the elevation of maxims of right and' of justice into the judgment-seat- of the world ; the recognition of our theory and poli cy of neutrality by Great Britain ; the honorable con clusion of a long-standing controversy and the ex tinction of a cause of war between Great Britain and the United States ; and the moral authority of hav ing accomplished these great objects without war, by peaceful means, by appeals to conscience and to rea son, through the arbitrament of a high international Tribunal. That war, the great curse and scourge of mankind, will utterly cease because of the present successful instance of international arbitration, nobody pretends. Questions of national ambition or national resent ment, — conflicts of dynastic interest, — schemes of ter ritorial aggrandizement, — nay, deeper causes, resting in superabundant population or other internal facts of malaise, misery and discontent, — will continue to produce wars to the end of time. "Non, sans doute," says M. de Mazade, — speaking of the acts of the Tribunal, — "la guerre n'est point bannie de ce monde, elle n'est pas remplacee par un tribunal de concilia tion faisant rentrer au fourreau Igs 6pees impatientes d'en sor- tir: ce n'est pas moins un ^venement caracteristique et heu- reux que le succ6s de ce tribunal d'equite, de cette sorte de jus tice Internationale." . . . We, Great Britain and the United States, have in 186 THE TREATY OF WASHINGTON. this matter shown that even a question affecting, or supposed to affect, national honor, may be settled by arbitration ; and if we have not effected the establish ment of international arbitration as the universal substitute for war, we have co-operated to prove by our example that the largest possible questions be tween contending Governments are suscep-fcible of being settled by peaceful arbitration. As Lord Eip on truly says, in so doing, we have taken a great step in the direction of the dearest of all earthly blessings, the blessing of peace. Let us hope that other nations may follow in our footsteps. Great Britain, to her honor be it said, has been true in this respect to the engagements she en tered into at the Conferences of Paris. If we of the British race are more capable of reasoning in the midst of passion than others, then ours be the glory. In all this, the sacrifices of feeling have been on the side of Great Britain. We owe the acknowledg ment to her, in all sincerity. Standing, as we now do, side by side, with every cloud of offense removed from between us, — two peoples, as Mr. Gladstone has well said, on whom the seal of brotherhood has been stamped by the hand of the Almighty himself,— we may proudly point in unison to the homage we have both rendered to the cause of peace and humanity in the hall of arbitration at Geneva. MISCELLANEOUS CLAIMS. 137 CHAPTER HI. MISCELLANEOUS CLAIMS. TREATY PROVISIONS. The Treaty goes on to provide, in Articles XII. to XVII. inclusive, that all claims on the part of corpo rations, companies, or private individuals, citizens of the United States, upon the Government of Great Britain, arising out of acts committed against the persons or property of citizens of the United States, during the period between April 13, 1861, and April 9, 1865, inclusive, not being claims growing out of the acts of the vessels referred to in the previous articles of the Treaty ; and all claims, with the like excep tion, on the part of corporations, companies, or private individuals, subjects of Great Britain, upon the Gov ernment of the United States, arising out of acts com mitted against the persons or property of subjects of Great Britain during the same period, shall be refer red to three Commissioners to be appointed,- one by each of the two Governments, and the third by the two Governments conjointly: these Commissioners to meet at Washington, there to hear, examine, and decide upon such claims as may be presented to them by either Government. The stipulation, it will be perceived, does not cover 188 THE TREATY OF WASHINGTON. all existing claims of citizens or subjects of the one Government . against the other, but only claims for acts .committed against persons or property on either side between certain defined dates, — that is, during the pendency of actual hostilities in the United States. It is a provision, supplementary in effect to the pre ceding clauses of the Treaty, conceived in the appar ent intention of thus closing up all subjects of conten tion growing out of our Civil War. The Commission was duly organized by the ap pointment of Mr. Eussell Gurney, Commissioner on the part of Great Britain, and Mr. James S. Frazer, on the part of the United States, and of Count Corti, Envoy Extraordinary and Minister Plenipotentiary of Italy, Commissioner named conjointly by the two Governments, The Treaty contains detailed provisions for the prosecution of the business before the Commission, to be completed within two years from the day of their first meeting; and the contracting parties engage to consider the decision of the Commissioners absolutely final and conclusive on each claim decided by them, — tP give full effect to such decision without any ob jection, evasion, or delay whatsoevel", — and to consid er every claim comprehended within the jfirisdiction of the Commissioners as finally settled, barred, and thenceforth inadmissible, from and after the conclu sion of the proceedings of the Commission, The Commissioners assembled at Washington on the 26th of September, 1871, and are assiduously en gaged in the determination of the claims submitted miscellaneous CLAIMS. 189 in conformity with the Treaty, having before them as Agent for the United States, Mr. Eobert S, Hale ; as Agent for Great Britain, Mr, Henry Howard ; with Mr, James M. Carlisle as Counsel, and Mr, Thomas C, Cox, Secretary to the Commission, The Commission will undoubtedly complete its du ties within the time prescribed by the Treaty, PRIVATE claims ON GOVERNMENTS. The intimate relation, which exists between the different States of Christendom at the present time, has resulted in the necessity of providing special means for adjudicating the private claims of the citi zens or subjects of one Government against another. It is one of the incidents of the gradual tendency of modern nations to substitute reason for force, and ar bitration for war. The subject has not yet obtained from publicists and legislators the attention which, by reason of its great practical importance, and its intrinsic interest as an element of civilization, it deserves. It may well receive consideration here, both in itself and in its relation to other congenial stipulations of the Treaty of Washington, All the Powers of Christian Europe and America are of accord, and stipulate in their treaties of amity and. commerce, to permit to one another's subjects free ingress, residence, sojourn, and traffic in their respective territories, on the same footing with the inhabitants thereof, and with subjection to the laws of the land, more or less complete, according to local 190 THE TREATY OF WASHINGTON. regulations and to the tenor of treaties. Total exemp tion from the local law is maintained only by the subjects of Christian States in countries outside of Christendom, In most of the countries of Christendom foreigners are protected in their personal rights equally with the inhabitants, and, if wronged, have access to the tribunals for redress, even against injuries by the lo cal Government itself Generally, indeed, it may be said, with truth, that the rights of a foreigner are better protected than those of the inhabitants of the country itself; for, in addition to the tribunals of the country where he so journs, the foreigner has the benefit of the Minister and Consuls of his own country. Of this favor the foreigner has occasional need, it is true; but it is a privilege susceptible of great abuse, by reason of the extravagant pretensions occa sionally made by persons who may suffer any real or apparent wrong, and who are prone to elevate trivial grievances into international questions, to the annoy ance of all Governments, and to the peril of the pub lic peace. Most of such subjects of complaint are capable of being settled by the local tribunals, and ought to be. The laws of Eome lie at the founda tion of the jurisprudence of all Europe and America alike ; the forms of judicial administration are sub stantially similar in all the States of both Continents; and in many of the cases of alleged wrong to foreign ers, and of call for diplomatic intervention, the affair is one which, if at home in his own country, the party MISCELLANEOUS CLAIMS. 191 would never dream of withdrawing from the courts of law to make the alleged injury a subject of claim against his Government. And it would greatly tend to the harmony of States and the peace of the world, if treaty stipulations were entered into in order to di minish the extent and restrain the frequency of such private claims on foreign Governments, In the present condition of things, every Govern ment is forced by private importunity into becoming too often the mere attorney of the claims of its citi zens against foreign Governments, in matters where the party aggrieved, if aggrieved, has ample means of redress before the tribunals, and where his grievance does not in the slightest degree affect the honor of his own Government. These observations apply especially to incidents occurring in times of peace, in which times the acts of willful injury, done by any Government to foreigners sojourning under its treaty protection, are few in number compared with the injuries done to its own subjects or citizens, by any, the best administered Government either of Europe or America. On such occasions, the injured party not seldom exaggerates his case, and, by appeals to the sentiment of citizen ship in his own country, seeks to force his Govern ment to interpose in his behalf, so as to obtain for him summary redress by diplomatic means in disregard of the local law. Meanwhile, in times of war, the resident or sojourn ing foreigner is still more solicitous to be exempt from those ordinary consequences of military operations to 192 THE TREATY OF WASHINGTON. which the inhabitants of the country are subject, and his solicitude is in proportion to the injuries to which he is thus exposed. This fact became conspicuous in the late war between Germany and France, and led to' many complaints on the part of British subjects voluntarily residing at the seat of war, which con strained Lord Granville to disabuse them of the idea that armies in the field were to fold their arms and cease to act, lest by chance they might, in the heat of action, disturb the peace of mind, or damage the prop erty or person, of some commorant Englishman, Incidents of this nature are most of all frequent in times of civil war, especially in those countries of Spanish America, where militarism prevails, and the regular march of civil institutions is interrupted by military factions headed by generals, in contention Avith one another, and with the constituted authorities of the Government, For injuries thus done to its subjects, residing or sojourning in a foreign country, every Government possesses of course the right of war or of reprisals, Avhich, in effect, is the same thing, being the adoption of force as a remedy in lieu of reason : a method of redress for private injuries, which, however common formerly, is contrary to all the prevalent notions of international justice in our day. Hence, while it is the right and duty of every Gov ernment to interpose on proper occasion, through its Ministers or Consuls, or otherwise, on the happening of -any injury to its citizens or subjects abroad, yet the recurrence to force as a means of redress is admis- MISCELLANEOUS CLAIMS. 193 sible only in very rare and exceptional cases of ag gravated wrong committed by the authorities of the foreign Government, The Government aggrieved in the person of its subject obtains, in many cases, the redress of the par ticular injury by more or less earnestness of diplo matic remonstrance, ** If, however, redress be delayed for some sufficient cause to excuse the delay, and cases of alleged injury are thus accumulated, indemnity for the injuries done will be procured by diplomatic negotiation, if the in jured Government be patient and persistent; for, much as there may be of evil in the world, and fre quently as nations depart on occasion from the rule of right, yet, after all, the sense of justice among men and the conscience of nations prevail to such extent that, in the end, in most cases, mere appeals to reason suffice to obtain voluntary reparation at the hands of the injuring Government, Thus, without war, and without threat of war, the United States have obtained, by treaty, payment of indemnity, for injuries to citizens of the United States, from other Governments, such as France, Denmark, the Two Sicilies, Spain, with provision for the distri bution of such indemnity, among our citizens, by our selves, through the agency of commissioners appointed under Act of Congress, USEFULNESS OF MIXED COMMISSIONS. In other controversies of this class between the United States and foreign Governments, where agree- N 194 . THE TREATY OF WASHINGTON. ment as to the nature of the injury or amount of the indemnity could not be arrived at, mixed commis sions have been established by treaty in numerous in stances, to judge and decide the questions at issue be tween the two contending Governments, On three several occasions, within a brief period, the Unit^ States and Great Britain have had re course to the international tribunal of a mixed com mission for settlement of unliquidated claims of citi zens or subjects of one country against the Govern ment of the other, namely, by the Treaty of July 26, 1853 ; by that of July 1, 1863 ; and by the present Treaty of Washington. Other examples of this occur in our earlier history. And the United States have had treaties of a similar character with the Mexican Eepublic, with the Eepublic of New Granada, with that of the United States of Colombia, and with the Eepublics of Costa Eica, Venezuela, and Peru, An eminent French publicist, M, Pradier Fodere, observes : " L' arbitrage, tres-usite dans le moyen-age, a ete presque entierement neglige dans les temps modernes; les exemples d'arbitrage offerts et acceptes sont deve- nus de plus en plus rares, par I'experience des incon- venients qui semblent etre presque inseparables de ce moyen, ordinairement insuffisant par le defaut d'un pouvoir sanctionnateur, Lorsque les grandes puissan ces constituent un tribun&l arbitral, ce n'est ordinaire ment que pour des objets d'interet secondaire," As to the absence of any power to compel observ ance ofthe award of an international tribunal, it may MISCELLANEOUS CLAIMS. 195 suffice to say that the "pouvoir sanctionnateur" is in the treaty of arbitration, which nations are quite as likely to observe as they are to observe any other treaty. It is that question of good faith among na tions upon which the peace of the world stands. Undoubtedly, cases occur in which the internation al discord or debate turns on questions where the na tional honor or dignity is directly in play, and where the controversy becomes a matter of personal senti ment; and in such cases it may not be easy to ob tain an agreement to arbitrate. Such, indeed, was the view of Earl Eussell, as we have already seen, with reference to the imputed want of due diligence of the British Government in the matter of the Alabama and the Florida. But the influence of time, which softens sensibilities and resentments, and the preva lence at length of the mutual desire of peace, may overcome even the most serious apparent obstacles to friendly arbitration, as the conduct of Great Brit ain in expressing her regret for the incidents of which the United States complained, and in referring the whole subject to the Tribunal at Geneva, seems to demonstrate. OTHER FORMS OF ARBITRATION. Many instances have occurred in the present centu ry of another form of arbitration, differing materially from mixed commissions, namely, submission to a sin gle arbiter or tribunal, with complete authority to decide the subject of controversy. Thus, in 1851, France and Spain referred to the ar- 196 THE TREATY OF WASHINGTON. bitration ofthe King ofthe Netherlands the question of responsibility for certain prizes, an incident of the intervention of France in the affairs of Spain in the time of Ferdinand VIL In 1827, Great Britain and the United States referred a question of boundary to the King of the Netherlands. In 1843, France and England submitted a question of indemnities claimed by British subjects to the King of Prussia. In 1844, France and Mexico submitted a similar question to the Queen of Great Britain. In 1852, the United States and Portugal submitted to the Emperor of the French the question of the responsibility of Portugal for the destruction of an American letter-of marque by the English in the port of Fayal. In 1858, the United States and Chile submitted a question of pri vate loss to the decision of the King of the Belgians. In 1862, a difference between some English officers and local Brazilian authorities was submitted to the arbitration of the King of the Belgians by Great Britain and Brazil. In 1867, Great Britain and Port ugal submitted a question of territory to the decision ofthe United States. In 1870, Brazil and the United States referred a question of damages to the decision of Sir Edward Thornton, the British Minister. In 1864, Great Britain and Peru submitted a question of private claims to the judgment of the Senate of the free city of Hamburg. We shall presently have to speak of a fact of the same class in the question referred by Great Britain and the United States to the Emperor of Germany by the Treaty of Washington.. MISCELLANEOUS CLAIMS. 197 One ofthe earliest of our conventions of this nature was contained in the Treaty of 1818, in execution of an article of the Treaty of Ghent [1815], by which the United States and Great Britain stipulated to re fer a certain question of indemnities to some friend ly Sovereign or State. Afterward the Emperor of Eussia was selected as such arbitrator, and rendered an award against Great Britain, in general terms, by reason of which it became necessary to provide by a second treaty [1822] for the appointment of a com missioner and arbitrator on the part of the United States, and a commissioner and arbitrator on the part of Great Britain, to assemble at Washington and as sess damages under the umpirage of the Minister of the mediating Power accredited to the United States. This example is curious and instructive, seeing that the debtor Government, so to speak, — GreatBritain, — in order to give effect to its engagement at Ghent entered into three successive international compacts Avith the United States, — one to appoint an arbiter, another to name him, and a third to give effect to his award. There could be no better illustration of the moral force of treaties of arbitration in the estimation of modern States. TENDENCY OF REASON AND JUSTICE TO PREVAIL OVEli FORCE. These many examples, it seems to me, tend to man ifest the increasing desire of modern nations to ter minate all their controversies, if possible, by friendly means rather than by force. Where they can not 198 THE TREATY OF WASHINGTON. agree between themselves, they establish a mixed commission or appoint an arbitrator or arbitrators. On such occasions the contending parties do npt se lect an arbitratpr in cpnsideration of his being power ful, like an Emperor of the French or an Emperor of Germany, but because of confidence in the impartial ity of the arbiter, as when great States refer a ques tion to relatively feeble Sovereigns, like the King of the Netherlands or the King of the Belgians, or to the Senate of a little Eepublic like Hamburg, or even to five individual judges, like the Arbitrators of Ge neva, or to a single person like Sir Edward Thornton. Nay, in further proof of the availableness of this method of settling national disputes, we have Great Britain and the' United States, in spite of their own particular quarrel, each trusting the other in a ques tion between either of them and another Power. The same disposition of mind on the part of mod ern Governments, that is, the assumption that a se lected international judge or arbitrator will decide impartially, whether he be powerful or weak, and of whatever nationality he may be, appears in the con stitution of mixed commissions. Generally these commissions consist of two cPmmissioners, one ap pointed by each of the respective Governments, with authority given to the commissioners to select an um pire to determine any differences which may arise be tween them ; or sometimes the umpire is agreed on by the two Governments. Now, in the very heat of our late controversies with Great Britain, we consented to accept the British MISCELLANEOUS CLAIMS. I99 Minister, Sir Frederic Bruce, as umpire between us and the United States of Colombia. And at the same period of time. Great Britain accepted Mr. B. E. Curtis, of Massachusetts, as umpire under the Treaty for set tling the claims ofthe Hudson's Bay Company against the United States. And in this case, be it remember ed, the Commissioners, just men both. Sir John Eose and Mr, Alexander S, Johnson, agreed on their award without troubling Mr, Curtis, Under the previous claims' Treaty between Great Britain and the United States, the two Governments in the first instance agreed on ex-President Van Buren as umpire, and, on his declining, they chose Mr, Bates, an American Banker residing in London, Under the claims' Treaty between the United States and New Granada, an American, Mr, Upham, of New Hampshire, was umpire ; and another American, Dr, Francis Lieber, of New York, under the recent Treaty between the United States and the Mexican Eepublic, Strongest of all is the case of the Treaty between Paraguay and the United States, which submitted their controversy to an American citizen, Mr. Cave Johnson, of Tennessee, as sole arbiter, and he decided against the United States. Is it possible to misapprehend the moral of such facts ? In all these various aspects of the subject, do we not perceive the sense of justice tending every day to penetrate deeper and deeper into the councils of nations, and the voice of reason, of which interna tional lam is the expression, influencing more and more the action of Governments ? 200 THE TREATY OP WASHINGTON. THEORY OF ARBITRATION. Sovereign States, it has been said, should be trust ed to do justice spontaneously, and without humbling themselves to be judged by an arbitrator. It might with just as good reason be said that all men should be trusted to do justice spontaneously, and without humbling themselves to be judged by a tribunal. The experience of mankind contradicts each of these propositions. Diverse views of the facts, and of the rules of right applicable to the facts, to say nothing of prejudice, passion, pride of opinion, are inseparable from human affairs, because they are conditions of the human mind, influencing the actions as well of men in political society as of individual men. Ad mit that in a majority of cases reason will prevail to prevent or to settle controversies between ihdividual persons ; but reason does not suffice in all cases, and it is for such exceptional cases that tribunals of jus tice exist, without which, in the attempt of men to right themselves, society would be dissolved into a state of anarchy and bloodshed. The considerations which recommend the establishment of tribunals hav ing authority as such within the limits of each sov ereign State, are still more cogent when applied to sovereign States themselves, which, having no com mon superior, must of necessity determine their dif ferences by war, unless they accept the mediation of some friendly Power to restore concord between them, or unless they recur to arbitration, by mutual consent, in one form or another according to circumstances, as MISCELLANEOUS CLAIMS. 201 the United States and Great Britain have done by the Treaty of Washington. So many examples of arbitration between Govern ments, within a recent period, contribute to prove that M. Pradier Fodere errs in assuming that in our day " offers of arbitration made, and accepted are becoming more and more rare." On the contrary, this method of terminating national differences may now be re garded as permanently fixed in the international juris prudence of Europe and America. AVISDOM OF THE PRESENT MIXED COMMISSION. I conclude, therefore, that the United States act ed wisely in submitting the claims of British sub jects to a mixed commission by the Treaty of Washington. Some persons in the United States, with disposi tion to criticise the Treaty of Washington, have sug- 'gested that this Commission may result in finding a large balance of many millions due from the United States to Great Britain. I think the supposition is altogether gratuitous, and that no such considerable balance will be found to be due. If it should be so, hPwever, the fact will in no sort detract from the credit belonging to the Treaty. K the Government of the United States, in the course of its efforts to suppress insurrection, shall have done injury to the subjects of Great Britain for which we are justly responsible by the law of nations, it is altogether proper that we should pay whatever indemnity therefor may be found due by the judg- 202 THE TREATY OF WASHINGTON. ment of a lawfully constituted international tribunal, such as the present Commission. Citizens of the United States are not slow to in voke the intervention of their Government in behalf of any American injured in the progress of civil war in other countries, and on such occasions to talk loud ly of " out/rages to citizens :" let us do as we would be done by, and concede that Great Britain is entitled to judicial examination of the cases of her subjects alleging injury by the occurrences of civil war in the United States. THE NORTHWESTERN BOUNDARY- LINE. 203 CHAPTEE IV. THE NORTHWESTERN BOUNDARY- LINE. PROVISIONS OF THE TREATY. The Articles of the Treaty from XXXIV. to XLII. inclusive dispose of the long-standing dispute be tween the United States and Great Britain regarding the true water-line by which the Territory of Wash ington is separated from Vancouver's Island. The subject of the controversy, and the agreement for its termination, are set forth as follows : " "Whereas it was stipulated by Article I. of the treaty con cluded at Washington on the I5th of June, 1846, between the United States and Her Britannic Majesty, that the line of boundary between the territories ofthe United States and those of Her Britannic Majesty, from the point on the forty-ninth parallel of north latitude up to which it had already been as certained, should be continued westward along the said paral lel of north latitude ' to the middle of the channel which sepa rates the continent from Vancouver's Island, and thence south erly, through the middle ofthe said channel and of Fuca Straits, to the Pacific Ocean ;' and whereas the Commissioners appoint ed by the high contracting Parties to determine that portion of the boundary which runs southerly through the middle of the channel aforesaid, were unable to agree upon the same ; and whereas the Government of Her Britannic Majesty claims that such boundary-line should, under the terms of the treaty above recite.d, be run through the Rosario Straits, and the Gov ernment of the United States claims that it should be run through the Canal* de Haro, it is agreed that the respective 204 THE TREATY OF WASHINGTON. claims of the Government of the United States and of the Gov ernment of Her Britannic Majesty shall be submitted to the arbitration and award of His Majesty the Emperor of Germany, who, having regard to the above-mentioned Article of the said Treaty, shall decide thereupon, finally and without appeal, which of those claims is most in accordance with the true in terpretation ofthe Treaty of June 15,1846." Subsequent articles prescribe that the question shall be discussed at Berlin by the actual diplomatic Eepresentatives of the respective Governments, either orally or by written argument, as and when the Arbi trator shall see fit, either before the Arbitrator him self, or before a person or persons named by him for that purpose, and either in the presence or the absence of either or both Agents. A previous arrangement in a treaty negotiated by the Earl of Clarendon and Mr. Johnson for referring the subject to the arbitration of the President of the Swiss Confederation had been rejected by the Senate of the United States, not on account of any objection to the particular arbitrator, but for other considera tions. There is good cause for the suggestion of Lord Mil ton that the Senate of the United States considered our " right to the disputed territory so extremely clear that it ought not to be submitted to arbitration." That, indeed, is the tenor of Senator Howard's speech on the subject, the publication of which was author ized by the Senate. Such a view of a question of right may be admissible on the part of a private in dividual, who, in a clear case, may prefer a suit at law in the courts of his country to arbitration ; but it is THE NORTHWESTERN BOUNDARY - LINE. 205 wholly inapplicable to nations, which, if they can not agree and will not arbitrate, have no resource left save war. But this was not the only consideration which in duced the Senate to refuse its assent to that treaty. There were objections to the form of submission, HISTORY OF THE QUESTION. The controversy to which these treaties refer is one of the leavings of the last war between the United States and Great Britain, and has its roots far back in the circumstances of the primitive colonization of North America by Europeans. When the Kings of the little island of Britain, in virtue of some of their subjects having coasted along a part of the Atlantic shores of America, assumed to concede to the Colonies of Massachusetts and Virginia grants of territory extending by parallels of latitude westward to the Pacific Ocean, and covering the un explored immensity ofthe Continent, and offtEe prem ises of sovereignty and jurisdiction as good as their title to the manor of East Greenwich in Kent, — it was only men's universal ignorance of geography which saved the act from the imputation of wild ex travagance. But such grants, and the pretensions on which they were founded, were the logical consequence of the theories of colonization and conquest pursued in the New World by Spain, Portugal, and France, as well as England, and formed the basis of the power of Great Britain in North America, and eventually of 206 THE TREATY OF WASHINGTON. that of the United States, It was the assumption that discovery by any European State, followed by occupation on the sea-coast, carried the possessions of such State indefinitely landward until they met the possessions of some other European State, At the same time, France had entered into America by the waters of the St, Lawrence, had ascended that river to the Lakes, had then descended by the Missis sippi to the site of the future New Orleans, and had thus laid the foundation of a title not only to the ex plored territories watered by the St, Lawrence or in front of it on the sea-coast, but also to undefined, be cause unknown, regions beyond the Mississippi, Hence arose the first great questions of boundary in North America, those between England, France, and Spain, which were settled by the Peace of Utrecht. France retained possession of the territories on the St. Lawrence and the Mississippi ; whilst England retained her country of Hudson's Bay and her Prov inces on the Atlantic coast, and acquired Nova Scotia and Newfoundland. [Treaty of Utrecht, March 31- April 11, 1713.] Subsequently, the fortunes of war made England mistress of the Canadian and coast establishments of France, leaving to the latter only the territory beyond the Mississippi. [Treaty of Fontainebleau, Nov. 3, 1762, and Treaty of Paris, Feb. 10, 1763.] Meanwhile, S^ain continued, with but brief inter ruption, in undisputed sovereignty ofthe two Ploridas, and of the vast provinces of New Spain, of undefined extension west and north toward the Pacific. THE NORTHWESTERN BOUNDARY -LINE. 207 Thus, when the Thirteen Colonies obtained inde pendence, and treated for the partition between them and Great Britain of the British empire in America, each took the part of which they respectively held constructive jurisdiction, according to its recognized limits in time of peace, — that is to say. Great Britain retained for herself the territories which she had con quered from France, and relinquished to the Thirteen Colonies all the territory which she had theretofore claimed as hers against France by title of colonization and possession. The new. Eepublic thus became the sovereign of a magnificent territory regarded in the comparison with European standards of magnitude, and also of intrin sic value and resources unsurpassed by the posses sions of any European State. But, even with such limits, we felt cribbed and con fined from the first : for the statesmen of the United States had clear perception not only of what we pos sessed as territory, but also of, what we needed to possess in order to be a first-rate Power in America. We found ourselves blocked in on the North by the British possessions, which also overshadowed us on the East, and which were at that time of sufficient relative strength to constitute an object of solicitude to us so long as they remained in the hands of Great Britain. Westward, we were hemmed in along the Missis sippi by the French, who also held the mouths of that river, and barred us from access to the sea in that direction. 208 THE TREATY OF WASHINGTON. On the South, Spain shut us up on the side of the Gulf of Mexico. It was impossible in this state of things that the United States could attain the development to which, in other respects, they had the right to aspire, by rea son of the fertility of their soil, their numerous rivers, and their commanding position in the temperate zone of America. But the cession of Louisiana to the United States by the voluntary act of France, — the most splendid concession ever made by one nation to another, — ^pro duced a revolution in the condition of America. We thus acquired territory of indefinite limits westward, with such limits on the south as the pretensions of Spain would allow, and with limits north only where superior claim of right on the part of Great Britain intervened, namely, the parallel of forty-nine degrees established between France and Great Britain by the Treaty of Utrecht. President Jefferson lost no time in asserting the rights of the United States in the interior of the Union, and at the same time acquiring knowledge of the country by means of the celebrated expedition of Lewis and Clark. Theretofore the only knowledge we possessed of the great chain of the Eocky Mount ains, and ofthe country or even the name ofthe coun try of Oregon beyond, was founded on the narration of Jonathan Carver, or other information derived from the Indians. We were thus enabled to comprehend the relation pf Louisiana to the shores of the Pacific, and to see THE NORTHWESTERN BOUNDARY - LINE. 209 that the Eiver Columbia, first entered by Captain Eob ert Gray of the American ship Columbia, of Boston, in 1792, and named by him, and afterward by the English explorer. Captain Vancouver, was " the great river of the West," the Oregon of Carver. That coast had already been explored with more or less of diligence by Spanish navigators, fitted out by the Viceroys of New Spain, who g.ave to many of the islands, straits, and channels the names they still retain ; and Spain, if any Power anterior to the Unit ed States, had title by discovery in those parts of America. But the earliest settlement on that coast was the factory of Astoria at the mouth of the Eiver Colum bia, established by John Jacob Astor. Then came the war between the United States and Great Britain: the first effect of which, as to the pres ent question, was the military occupation of Astoria and of the country on the banks of the Columbia by British forces : subsequently to which, on the conclu sion of peace, although Astoria was surrendered to us in obedience to the stipulations ofthe Treaty of Ghent, yet Great Britain set up claim to the valley of the Columbia as against the United States, and, indeed, to all the country intervening between the actual oc cupations of Spain tp the south in California, and those of Eussia to the north in Sitka. ' Claims of Great Britain in this quarter, with but weak foundation, had already been asserted against Spain to the south of the Eiver Columbia. Controversy on the subject between the United O 210 THE TREATY OF WASHINGTON. States and Great Britain was suspended by the Treaty of October 20, 1818. By that treaty it was stipula ted that from the Lake of the Woods to the " Stony Mountains," the line of demarkation between the pos sessions of the two countries in America should be the forty-ninth parallel of .latitude westward to the Stony Mountains. The United States might well have insisted on pro ceeding due west from the most northwestern point of the Lake of the Woods, the terminal point in that direction of the Treaty of Independence, which is nearer the parallel of 50°; but, in early unsuccessful negotiations on this subject under President Jefferson, we had agreed to adopt the 49th parallel, and that agreement was renewed by the Treaty of 1818, in obe dience to the assumption that this line had been es tablished by the Treaty of Utrecht.* * The "Treaty of Peace and Amity" between France and England contains the following provision [Art. X.] : ' " Quant aux limites entre la Bale de Hudson et les lieux ap- partenans a 'la France, on est convenu r6ciproquement qu'il sera nomm'6 incessamment des Commissaires, qui les deter- mineront dans le terme d'un an : ... les m^mes Commissaires. auront le pouvoir de regler pareille'toent les limites entre les autres colonies Fran9aises et Britanniques dans ce pays-1^." — Dumont, t. viii., pt. 1, p. 332-338. Mr. Bancroft, misled by Mr. Greenhow, says of this arti cle : " On the Gulf of Mexico, it is certain that France claimed to the Del Norte. At the northwest, Where its collision would have been with the possessions of the Company of Hudson's Bay, no treaty, no commission, appear^ to have fixed its lim its." — Bancroft's History, vol. iii., p. 343. THE NORTHWESTERN BOUNDARY - LINE. 211 It was further provided by the same' treaty that the country claimed by either Party westward of the Stony Mountains, with its harbors, bays, and creeks, and the navigation- of all rivers within the* same, should be free and open for the term of ten years to the vessels, citizens, and subjects ofthe two Powers: it being understood that this agreement should be without prejudice to any exclusive claim of either, or to the claim of any other Power. This treaty, Avhich regulated the occupation of Or egon for so many years, although apparently equal on its face, was very unequal, as we shall see, in fact, by reason of the whole country being immediately over run and almost exclusively occupied by the Hudson's Bay Company. But the pretensions of the United States received notable reinforcement through the Treaty between Mr. Madison had previously said, as if not perfectly certain of the fact : " There is reason to believe that the boundary between Lou isiana and the British territories north of it was actually fixed by Commissioners appointed under the Treaty of Utrecht, and that the boundary was to run from the Lake of the Woods westwardly on latitude 49°." — American State Papers,Foreign Affairs, vol. iii., p. 90. The point was settled, however, by inquiries made by Mr. Monroe at London. He says : "Commissaries were accordingly appointed who executed the stipulations of the treaty in establishing the boundaries of Canada and Louisiana by a line beginning on the Atlantic at a cape or promontory in 58° 30' north latitude; thence south- westwardly to the Lake Mistosin ; thence farther southwest to the latitude 49° north, and along that line indefinitely." — American State Papers, Foreign Affairs, xo\. iii., p. 97. 212 THE TREATY OF WASHINGTON. Spain and the United States of February 22, 1819, by which the former ceded to the latter the two Floridas, carrying our territory down to the Gulf of Mexico, and by which also a line of demarkation was run between the territories of the respective Parties west of the Mississippi. This line, commencing on the Gulf of Mexico at the mouth of the Eiver Sabine, proceeds by that river, the Eed Eiver, and the Arkan sas, to its source in latitude 42° north ; " and thence by that parallel of latitude to the South Sea." And Spain expressly ceded to the United States all her " rights, claims, and pretensions to any territories east and north of the said line, as thus defined and de scribed by the treaty." To the rights, claims, and pretensions , of the United States on the northwest coast we could now add those of Spain. But another pretender to rights on that coast now appeared in the person of Eussia, whose actual occu pation came down to the parallel of 54° 40'; and thereupon it was agreed between Eussia and the United States by Treaty of April 17, 1824, that the latter would not permit any settlement by its citizens on the coast or islands north of that degree, and that no subjects ofthe former should be permitted to settle on the coast or islands south of the same degree. Neither Government, however, undertook to make any cession to the other. Nor was the country south of the line described as a territory or possession of the United States. During the next year, Eussia and Great Britain concluded a treaty for the demarkation of the limits th£ northwestern boundary -line. 213 between them in the same quarter by a line which, beginning in 54° 40' at the southernmost point of Prince of Wales Island, was made to run obliquely to strike the main-land at latitude 56°, and then to pro ceed parallel to the windings of the coast at the dis tance of not exceeding ten marine leagues therefrom along the summit of the coast mountains to its inter section with the 141st degree of longitude at Mount St.Elias, and thence due north along that meridian to the Frozen Ocean. It has been too much the practice of British navi gators and British map-makers to affix English names to places previously visited and named by other Europeans, and to found thereon claims of discov ery. English names are scattered along the coast of Eussian America, — such as Cook's Inlet, Prince Wil liam Sound, King George IIL Archipelago, Prince of Wales Archipelago; — but no British claims of prior exploration could prevail here against the claims of possession as well as discovery presented by Eussia, In this treaty, each Government speaks as the pro prietor and sovereign of the respective territories ; and it is this treaty which defines and marks out the Territory of Alaska, as now held by the United States under recent cession from Eussia, In this condition stood the title for more than twenty years: the United States claiming from the latitude of 42° to that of 54° 40', in virtue, first, of their own discoveries and settlement, and of the right of the extension of Louisiana until it should reach the 214 THE TREATY OF WASHINGTON. ocean or some recognized possession oi another Power, and, secondly, in virtue of the discoveries and rights of extension of Spain ; and Great Britain claiming in virtue of discovery and possession, and of rights of ex tension of her actual admitted possessions in America. Thus we arrive at the question of what her actual admitted possessions were : which is the key to the Treaty of June 15, 1846, the interpretation of which was referred to the Emperor of Germany, On the restoration of Charles IL, projects of colo nization and of remote commercial or speculative en terprises, which had been suspended in England dur ing the Civil War, began to be resumed with new zeal, comprehending a^ well the East as the West Indies, Among the great territorial charters of that day, one of the most interesting is. that of the .Hudson's Bay Company, by which the King gran;ted to. sundry persons, including the Prince Eupert, the Duke of Albemarle, the Earl of Craven, Lord Arlington, Lord Ashley, Sir John Eobinson, Sir Edward Hungerford, and others [in part, it will be perceived, the same per sons who obtained a grant of the two Carolinas], " The sole trade and commerce of all those seas, straits, bays, rivers, lakes, creeks, and . sounds, in whatsoever latitude they shall be, that lie within the entrance of the straits commonly called Hudson's Straits, together with all the lands and terri tories upon the countries, coasts, and confines of the seas, bays, lakes, rivers, creeks, and sounds aforesaid, that are not already actually possessed by or granted to any. of our subjects, or possessed by the subjects of any other Christian Prince or State, with the fishing of all sorts of fish, whales, sturgeons, and THE NORTHWESTERN BOUNDARY - LINE. 215 all other royal fishes in the seas, bays, inlets, and rivers within the premises and the fish therein taken, together with the roy alty of the sea upon the coasts within the limits aforesaid, and all mines royal, as well discovered as not discovered, of gold, silver, gems, and precious stones, to be found or' discovered within the territories, limits, and places aforesaid, and that *the said land be from hencefoi'th reckoned and reputed as one of our Plantations or Colonies in America, called ' Rupert's Land.' " This concession was induced, as the preamble of the charter sets forth, by the reason that the parties " Have, at their own great cost and charges, undertaken an expedition for Hudson's Bay, in the northwest part of America, for the discovery of a new passage to the South Sea, and for the finding some trade for furs, minerals, and other considerable commodities, and by such their undertaking have already made such discoveries as do encourage them to proceed farther in pursuance of their said designs, by means whereof there mlay probably arise very great advantage to us and our Kingdom." The Company's Charter, in common with others of that period, conveyed tp them the right to hold the territory granted with all rights and jurisdictions ap pertaining thereto, as of the manor of East Green wich in Kent ; the Company became lords and pro prietors of Eupert's Land on condition of a yearly payment to the Crown of " two elks and two black beavers ;" and no legal impediment existed to the es tablishment on Hudson's Bay of a local political gov ernment such as existed in Massachusetts or Virgin ia ; but, in reflecting on the slow growth of the Brit ish Colonies in the more temperate latitudes of North America, it will be readily seen that no colonization could be effected on the frozen and desolate shores of Hudson's Bay, In effect, the Company very soon 216 THE TREATY OF WASHINGTON. resolved itself into a mere commercial undertaking for trade in the furs of the vast region in the space .between Canada or New France and the Arctic Sea, inhabited only by wandering bands of Indians. When the great Succession War broke out, involv ing all Europe, it could not fail to reach America ; for the possessions of three of the four principal Powers engaged, — France, Great Britain, and Spain, — occupied alternate points on the coast of the At lantic. The French, of course, endeavored to avail themselves of the opportunity to drive out or to weaken the English on both sides of them, and es pecially in Eupert's Land, which they invaded and partly conquered, but restored by the subsequent Treaty of Utrecht. After this time, the Company, safe in its arctic sol itudes, prospered without check for a century, filling Eupert's Land with forts and factories, and engross ing the fur trade of North America. Thereupon a rival Company entered the field, un der the auspices of the Province of Canada, founding its enterprise on the assertion that Eupert's Land had only a limited extension south and west, to cov er no more than the water-shed terminating at Hud son's Bay, with no rights or jurisdiction southward and westward to the great Lakes and the Eocky Mountains. After a long and violent controversy, the North west Fur Company was by agreement of parties merged to the Hudson's Bay Company. The combined influence of the parties interested in THE NORTHWESTERN BOUNDARY-LINE. 217 the aggregate Company enabled it to obtain for a term of years, first in 1821, and afterward in 1838, exclusive right to trade with the Indians in certain parts of North America not belonging to Prince Eu pert's Land. The region of country thus opened by license ex clusively to the Hudson's Bay Company is described in the license of 1838 as follows : " The exclusive privilege of trading with the Indians in all such parts of North America to the northward and to the west ward ofthe lands and territories belonging to the United States of America as should not form part of any of our provinces in North America, or of any lands or territories belonging to the said United States of America, or to any European Government, State, or Power." In SO far as these licenses affected only the region west and south of Hudson's Bay depending on Lake Winnipeg, Lake Athabasca, the two Slave Lakes, and other lands east of the Eocky Mountains, they did not concern the United States. But in so far as they affected the region west of the Eocky Mountains, such a license is in plain viola tion of treaties with the United States. The Queen of England could give a license in that region to the Hudson's Bay Company exclusive of all other English men; but she could not give any to exclude citizens of the United States. That, indeed, the grant does not profess to do; but, in effect, it did that and more; for in the hands of the Company it was " a charter of licensed usurpation and pillage in the whole of the described region of North America." The Com pany established forts or posts at every eligible or 218 THE TREATY OF WASHINGTON. strategic point between the mountains and the shores of the -Pacific ; their servants killed the fur-bearing animals ; they cut and exported the timber ; and, by means of its wealth and organization, the Com pany monopolized the commerce and the resources substantially to the exclusion for a long time of the people of the United States. But at length some settlements of Americans had been commenced in Oregon; and the attention of Congress was called to the usurpations of the Hud son's Bay Company by Mr. Benton, Mr. Linn, and the writer of these pages : in consequence of which steps were taken to put an end to the joint occupation of Oregon. In fact, the Company had now set up the most extravagant pretensions, exaggerating a mere li cense to trade into a grant of proprietorship to the whole of the immense region south and west of Eu pert's Land, to the dissatisfaction of the people of Canada as well as of the United States.' For it was the interest of the Company to retain the whole country occupied by them in the condition of a mere hunting-field, and quite uninhabited, except by vassal Indians: while the Canadians desired that it should be opened to colonization, so as to add to the materi al resources and political force of the Canadian Prov inces. Parliamentary inquiry into the rights of the Company was instituted; it was imperatively instruct ed by Sir Edward Bulwer Lytton [afterward Lord ¦ Lytton], Colonial Minister [AA^hose dispatches show that he was not less eminent as a statesman than as a poet and a novelist], to desist from all general pre- THE NORTHWESTERN BOUNDARY - LINE. 219 tensions of proprietorship founded upon license to trade; its license was revoked; it was compelled to yield up Oregon to the United States; and it was half- persuaded and half - constrained to sell its char tered rights to the Canadian Dominion, and to shrink into comparative insignificance in America. When the Government of the United States enter ed into negotiations with Great Britain for termina ting the joint occupation of Oregon, the machinations ofthe Hudson's Bay Compiany were the great disturb ing fact which for a long time prevented the conclu sion of a treaty and its due execution. Meanwhile the two Governments, after extraordi nary contention, at length arrived at a settlement of another boundary question, which had remained open ever since the Treaty of Independence, namely, the boundary-line on the northeast between the British possessions and the United States [Treaty of Novem ber 20, 1842]. The duration ofthe Treaty of 1818 was limited to ten years. As the expiration of this time approached, the American Government offered to settle the ques tion of Oregon by extending the line of 49° to the Pacific Ocean, and announced this as "our ultimatum," The British Government objected that this line would cut off the southern part of Vancouver's Island, We replied by proposing to yield this part for an equiv alent. But it was for the interest of the Hudson's Bay Cpmpany, which was in practical possession of the whole country, to defeat this attempt at settlement, and it was defeated, and the United States reluctant- 220 THE TREATY OF WASHINGTON. ly consented to the prolongation of the nominal joint occupation. But the discussions in Congress heretofore men tioned, and the disposition of Americans to settle in Oregon, had, in 1842, rendered the joint occupation intolerable to the people of the United States, and the negotiation for settlement was renewed on the premises of the 49th parallel. The baleful influence of the Hudson's Bay Company caused the negotiation to drag on for the period of four years; when the Treaty of 1846 was at length concluded, yielding to Great Britain the southernm6st extremity of Van couver's Island. It was the question of Vancouver''s Island which chiefly occupied the succeeding negotiators. To run the line on the 49th parallel to the sea, and " thence by the Canal de Haro and Straits of Fuca to the ocean," was Lord Aberdeen's proposition to Mr. McLane. And the same understanding of the ques tion, — that is, to concede to Great Britain "Vancouver's Island, and nothing else south of latitude 49°," — per vades the dispatches and debates on both sides. And on such premises, notwithstanding much opposition in Congress and out of it, the United States acceded to these terms as a measure of peace and of concilia tion toward Great Britain. But strife was unexpectedly renewed two years afterward by Lord Palmerston, or by Lord John Eus sell, who had succeeded as Premier to Sir Eobert Peel, and their action has kept up dispute on the subject between the tvvo Governments for more than twenty THE NORTHWESTERN BOUNDARY -LINE. 221 years solely on account of pretensions which ought not to have been raised, and the injustice of which has now at length been demonstrated by the Award of the Emperor of Germany. If this Award be unwelcome to the people of Great Britain, no ffeeling of unkind ness in that respect should be attached by them to the United States. The Canal de Haro was undoubt edly intended by the negotiators of the Treaty of 1846 as the water-boundary in that quarter: that in tention accords with the obvious and only reasonable signification of the language of the treaty. THE AWARD. This conclusion is clearly and conclusively proved in the Memorial presented in the name of the Amer ican Government to the German Emperor by the American Plenipotentiary and Agent, Mr. George Bancroft, and in his Eeply to the Case of Great Britain. Mr. Bancroft was pre-eminently fitted for the per formance of this duty. Possessing intellectual quali ties of a high order,, and particular personal estimation at the Court of Berlin, he enjoyed the advantage of having been a member of the Cabinet under whose auspices the Treaty of 1846 was negotiated, — of sub sequently representing his Government at the Court of St. James at the time when the present controversy commenced, — and of being thoroughly master of all the older diplomatic incidents of the question by his studies as the historian of the United States. Of the value of all these qualifications to his Government on 222 THE TREATY OF WASHINGTON. the present occasion, we have the proof in two most complete and most convincing arguments which he addressed to the Emperor of Germany. The Agent on the part of Great Britain was Ad miral James C. Prevost, who had been the Commis sioner of his Government, in association with Mr. Archibald Campbell, Commissioner of the United States, for determining and marking the line of bound ary prescribed by the treaty, and who, of course, pos sessed all the special knowledge requisite for the preparation of any possible argument in support of the pretensions of Great Britain. The Emperor, it appears, referred the arguments on both sides to three experts. Dr. Grimm, Dr. Kiepert, and Dr. Goldschmidt, personages among the most eminent of his subjects in jurisprudence and in sci ence, uppn whose report he decided on the 21st of October, 1872, in the terms of the reference, that the claim of the United States to have the line draAvn through the Canal de Haro is most in accordance with the true interpretation of the treaty concluded on the 15th of June, 1846, between Great Britain and the United States. "This Award," says the President's Message of De cember 2, 1872, " confirms the United States in their claim to the important archipelago of islands lying between the .continent and Vancouver's Island, which for more than twenty-six years [ever since the ratifi cation of the treaty] Great Britain had contested, and leaves us, /or the fi/rst time in the history ofthe United States as a nation, without a question of disputed THE NORTHWESTERN BOUNDARY- LINE. 223 boundary between our territory and the possessions of Great Britain on this continent." In recent debates in the House of Lords, the Earl of Lauderdale criticised the Treaty of Washington in severe terms, partly on the assumption that the United States have in reserve new claims respecting the northwestern boundary-line. He is mistaken. Nothing remains but questions of hydrography for Commissioners to determine, which there is no diffi culty in doing ; and arrangements have already been made by the two Governments for the appointment and organization of the requisite Commission. In conclusion, let me say that Great Britain has no cause to regret the adverse conclusion of this contro versy. The conditions of the Treaty of 1 846 involved positive concession on the part of the United States, if not as to the general line, yet in giving up the whole of the Island of Vancouver without any com pensation. We certainly did not mean at the same time to give up the important island of San Juan, and various other islands intervening between that and the main-land, which would have been the effect of admitting the Straits of Eosario as the water-bound ary. We knew that prior to and during the negotia tions the Canal de Haro was expressly mentioned and always understood as the true channel, corre sponding to the desire of the British Government to secure Vancouver's Island. To Great Britain it can be of no possible conse quence which of the lines of boundary should be es- , tablished. What possessions remain to her on the 224 THE TREATY OF WASHINGTON. northwest coast of America, Vancouver's Island and British Columbia can not ever be of special impor tance to her either as a military post or as a colony. Nor can they be of any military advantage to the Canadian Dominion, and may, on the contrary, con stitute in her hands. a temptation to needless expense in fortifications, notwithstanding which, owing to the remoteness of those countries by land and their in accessibility to her by sea, the Dominion would find. them quite untenable in the presence of the powerful American States on the shores of the Pacific Ocean. To the United States, on the other hand, it is im portant to have had the question decided in our favor. We are now a real power on the Pacific coast, which Great Britain is not and can not be. Holding the Territory of Alaska to the north of the British pos sessions, the Territory of Washington, the State of Oregon, and the great and rich State of California ceded to us by the Mexican Eepublic, with the grow ing States and Territories on their rear, it would have been to us intolerable to be excluded from the great channel between Vancouver's Island and the main land, or to traverse it only under the guns of British fortresses on that island. Such a settlement would have had'in it the germs of war: the present affords assurance of stable peace. Happily the United States and Great Britain are now delivered from the complications in their rela tions occasioned by the exorbitant power of the Hud son's Bay Company. By other provisions ofthe same Treaty of 1846, the United States had made to Great THE NORTHWESTERN BOUNDARY -LINE. 225 Britain the concession of recognizing certain preten sions of that Company in Oregon and Washington, founded on mere encroachment, and, in order to be re lieved of these pretensions, paying to the Cpmpany a small sum in satisfaction of its claims, about one tenth of what was demanded for it in the name of the Brit ish Government. Lord Milton expresses the opinion that " On a just and equitable solution ofthe so-called San Juan Water- boundary Question depends the future, not only of British Columbia, but also of the entire British pos sessions in North America." By "just and equitable solution" he means, of co.urse, decision in favor of Great Britain. If the premises are correct, then the consequences are a fact accomplished. But he over estimates the value of the Archipelago o'f San Juan to Great Britain. His opinion assumes what is impossi ble, the acquisition of considerable intrinsic strength on the part of British Columbia, sustained by railroad connection with the Provinces of Ontario and Quebec. But what would avail, in a military point of view, a railroad running through a thousand miles of com paratively uninhabited country within easy reach at every point to the armies of the United States ? I think the future of the British possessions in North America depends on a different order of facts, of which something will be said in another chapter in speak ing of the commercial relations of the United States and the Canadian Dominion. P 226 THE TREATY OF WASHINGTON. CHAPTEE V. THE FISHERIES. HISTORY OF THE QUESTION, The Treaty of Independence was, I repeat, a vir tual partition of the British Empire in America be tween the Metropolis and the Thirteen United Col onies. It was not a treaty founded on military pos session : for the Colonies had no such possession save along the coast of the Atlantic Ocean, and Great, Britain occuf)ied several posts north and west of, the Ohio and on the Great Lakes. The theory of the treaty was to recognize the Colonies as sovereign ac cording to their political limits as fixed by charter and by the public law of England. In conformity with this theory, the treaty stipu lates that the United States shall continue in the en joyment, of the coast fisheries, as follows : " Article HI. It is agreed that the people ofthe United States shall continue to enjoy unmolested the right to take fish of ev ery kind on the Grand Bank, and on all the other banks of New foundland ; also in the Gulf of St. Lawrence, and at all other places in the sea where the- inhabitants of both countries used at any time heretofore to fish ; and also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use [but not to dry or cure the same on that island] ; and THE FISHERIES. 227 also on the coasts, bays, and creeks of all other of His Britannic Majesty's dominions in America ; and that the American fish ermen shall have liberty to dry and cure fish in any ofthe un settled bays, harbors, and creeks of Nova Scotia, Magdalen Isl ands, and Labrador, so long as the same shall remain unsettled ; but so soon as the same or either of them shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at the said settlement, without a previous agreement for that pur pose with the inhabitants, proprietors, or possessors of the ground." Notwithstanding the absolute terms of this treaty in regard to the question of peace, there survived on both sides so much of irritation, and so many points of mutual relation remained uncertain, that the treaty was in some respects little more than a truce. We had special cause to' complain of the persistent occu pation of northwestern posts by Great Britain, and its effect on the Indians within our lines. On the other hand, to say nothing of minor matters, when the wars of the French Eevoluti'on commenced, and the French Eepublic undertook to use our ports as the base of naval operations against Great Britain, the latter Power took umbrage of course ; and it was only the firm attachment of President Washington to peace, which prevented these difficulties from fatally em broiling the two countries, and which led to the con clusion of the Treaty of December 19, 1794, as the similar spirit of President Grant led to the conclusion of the Treaty of Washington. During the next ten years, the United States labor ed to maintain their neutrality in the presence of the universal war by land and sea which raged between the great European Powers. Both France and En- 228 THE TREATY OF WASHINGTON. gland gave to us good cause of rupture ; we barely escaped war with France in 1798; we were forced into war with England in 1812; and in the course of all these events the hand of the Government was restrained, if not paralyzed, by the factious force of sympathies in the United States, on the one side for France and on the other for England. Hence, alike in the quasi war with the former, and the declared war with the latter, the results as to the United States were uncertain, imperfect, trivial even, compared with the great objects which might have been accomplish ed by united counsels. On the side of France, however, it must be admit ted that our disposition to avoid' pushing matters to extremities contributed to gain for us the immense benefit of the acquisition of Louisiana. Afterward, although the Berlin and Milan Decrees of France and the Orders in Council pf Great Britain cpnstituted each alike gpod cause of war with either, yet the United States held back at vast sacrifice, until continued assertion of the right to impress seamen on board of our merchant ships, and, indeed, to visit our ships-of-war, and other exaggerations of belligerent right, forced us into war with Great Britain. The treaty by which that war was concluded is one of the most unsatisfactory in the annals of the United States. It was absolutely silent in regard to all the subjects of controversy which had occasioned the war. Nothing is said of the belligerent encroach ments of Great Britain on the neutral rights of the United States, nothing of maritime search, nothing of THE FISHERIES. 229 the impressment of real or pretended British subjects on board ships of the United States. And it left room, by its silence, for Great Britain to raise ques tion of our right to participate in the coast fisheries, which question, although dealt with from time to time in successive treaties, has more than once seriously endangered the peace of the two Governments. Does war have the effect of annulling all existing treaties ? A general answer to this question is given by one of the most authoritative of modern publicists [Calvo] as follows : " If the treaty of peace modifies anterior treaties, or express ly declares the renewal of them, the dispositions of the treaty of j)eace are thereafter to constitute the law ; but if no partic ular mention is made in this respect, the anterior treaties must necessarily continue to have full force and efiect." In order that they should be deemed definitively abrogated, it would be requisite that they shall not only be suspended by the war but annulled in fact, as in the caSe of treaties of alliance of which the raison d^Stre ceases at the end ofthe war: it would be requisite, indeed, that their contents should be incompatible with 'the stipulations of the treaty of peace, which occurs, for example, in what regards ancient treaties relative to the de limitation of frontiers between two States." The Supreme Court of the United States lays down the law as follows : " We think that treaties stipulating for permanent rights and general arrangements, and professing to aim at perpetuity, and ¦ to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts ; and unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operations at the return of peace." » Such has been the received doctrine in the United 230 THE TREATY OF WASHINGTON. States, to the effect that war does not, as an absolute, universal rule, abrogate existing treaties, regardless of their tenor and particular contents ; and it is the only doctrine compatible with reason, justice, common. sense, and the diplomatic history of Europe. But the British Government, in the celebrated dis patch to Mr. Adams of October 30, 1815, signed by Lord Bathurst, and understood to be the composition of Mr. Canning, declared the position of Great Britain to be : " She knows no exception to the rule that all treaties are put an end to by a subsequent war be tween the same parties." This proposition, in its ab soluteness of expression, if it is intended as an asser tion of any established practice of nations, or any rec ognized doctrine of the law of nations, is unfounded and unauthorized. Many treaties are made precisely for the case of war, and only become efficacious in virtue ofthe existence of war. The assertion of Lord Bathurst is altogether too broad, as Dr. Bluntschli demonstrates. Nevertheless, acting on such extreme premises. Great Britain pretended that our rights of fishery had been abrogated by the war, and were not revived by peace; and that this effect was the true interpretation of the omission to mention the subject in the Treaty of Ghent. The Commissioners of the United States who ne gotiated the Treaty of Ghent were men of unques tionable patriotism and of the highest character and intelligence -. it would%e out of place here to reopen the dispute as to certain special causes of the failure THE FISHERIES. 231 of the Commissioners to secure in that treaty recog nition of the fishery rights of the United States, But it is due to the memory of the American Commission ers, and especially to Mr, Gallatin, Mr, Adams, and Mr, Bayard, to say that, in all the negotiation at Ghent, they and their associates were hampered by the dis couraged state of mind of the American Government, embarrassed, as it was, by political difficulties at home, and alarmed, if not terrified, by the triumph of Great Britain in Spain and France, and the total over throw of Napoleon, which seemed to leave the Brit ish Government free to dispatch overwhelming forces of sea and land against the United States, The autumn subsequent to those events was the darkest period in the history of the country. Noth ing but the shock produced by the great change in the whole face of affairs in Europe could have extort ed from the American Government those final instruc tions to our Commissioners, which authorized them to agree to the status quo ante belhim as the basis of negotiation, — which spoke of our right to the fisheries, and of our foreign commerce, in equivocal terms, — and which, indeed,.left the Commissioners free to con clude such a treaty as their own judgment should approve under existing circumstances, provided only they saved the rights of the United States as an inde pendent nation. How different might and would have been those instructions, had the Government but struggled on a little longer against the adverse circumstances of the hour ! Courage and procrastination would have made 232 THE TREATY OF WASHINGTON. us masters of the situation, and enabled us to dictate terms to Great Britain, Eemember that the Treaty of Ghent was signed on the 24th of December, 1814, and that the disastrous defeat of the British forces attacking New Orleans oc curred a fortnight afterward, on the 8th of January, 1815, This event, if the negotiation at Ghent had remained open, could not but have strengthened the American Government ; and, two months later, all the difficulties in its path would have been removed by the landing of Napoleon at Golf Jouan [March 1, 1815] and the renewal of the war in Europe. But the pretension of Great Britain, that the war had abrogated any part of the Treaty of Indepen dence, was evidently untenable ; and the justice of the cause of the United States was so manifest that, after three or four years of discussion, the British Government agreed to the express recpgnition of our fishery rights as follows [Treaty of October 20,1818]: "Whereas difierences have arisen respecting the liberty claimed by the United States, for the inhabitants thereof, to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America, it is agreed between the high contracting parties that the inhabit ants of the said United States shall have, forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of New foundland which extends from Cape Ray to the Rameau Isl ands, on the western and northern coast of Newfoundland from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbors, and creeks from Mount Joly, on the southern coast of Labra dor, to and through the Straits of Belleisle, and thence north- THE FISHERIES. 233 wardly indefinitely along the coast, without prejudice, how ever, to any of the exclusive rights of the Hudson's Bay Com pany. And that the American fishermen shall also have lib erty, forever, to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of New foundland, hereabove described, and ofthe coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. .And the United States hereby renounce, forever, any liberty heretofore enjoyed or claimed by the inhabitants there of to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America, not included within the above- mentioned limits : Provided, however, that the American fisher men shall be permitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchas ing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privi leges hereby reserved to them." In virtue of these treaty provisions, citizens ofthe United States continued to fish on the coasts of the British Provinces without interruption for some twen ty years, when question was raised as to their right to fish within the bays or indents of the coast, in consequence of an opinion of the Law Officers of the Crown that the expression "three marine miles of any of the coasts, bays, creeks, or harbors," within which citizens of the United States were excluded from any right of fishing on the coast of British Amer ica, intends miles "to be measured from the headlands, or extreme points of land next the sea or the coast, or 234 THE TREATY OF WASHINGTON. of the entrance of bays or indents of the coast," and that, consequently, American fishermen had no right to enter bays, there to take fish, although the fishing might bQ at a greater distance than three miles from the shore of the bay. This opinion, be it observed, makes no distinction between close bays and open ones, large indents of the coast and small ones, and, if carried into effect by the British Government, would exclude citizens ofthe United States from a large part ofthe productive fish ing-grounds on the coast of British America. Now, strange to say, this opinion of the Law Officers of the Crown is based on a mere blunder of theirs, or, to say the least, on a fiction, or a bald interpolation. After stating their conclusion, they assign, as the sole reason of it : " As [that is, because] we are of opinion that the term ' head land ' is used in the treaty to express the part of the land we have before mentioned, including the interior of the bays and the indents of the coasts." It is not true that "the term 'headland' is used in the treaty to express the part of the land we have before mentioned," Neither the term "headland" nor any word of simi- • lar signification is to be found in the treaty. The Law Officers of the Crown undertook to construe the treaty without reading it, and by this presumptuous carelessness caused the British Government to initi ate a series of measures of a semi-hostile character, which came veiy near producing another war be tween Great Britain and the United States, THE FISHERIES. 235 It may be quite admissible for the British Gov ernment, as they are accustomed to do, to throw off all their responsibilities on the "Law Officers of the Crown," when the question is one of mere domestic relation ; but it is dangerous for that Government to do so in matters affecting other Gov ernments, We have already had occasion to comment on the very extraordinary circumstances attending the fail ure of the Law Officers of the Crown to report upon the case of the Alabama, and its disastrous influence on the conduct of the Government. As to the opinion of the "Law Officers of the Crown " in construction of the fishery clauses of the treaty of 1818, it is difficult to say which produced the more amusement or amazement in the United States, the fact that the "Law Officers" should inter polate a phrase into the treaty in order to give to their opinion its sole foundation to stand upon, or that the British Government should placidly accept such fallacious and baseless reasoning without chal lenge, and proceed in obedience to it to enter into hos tile maritime operations, and hurry on to the verge of war against the United States, After much agitation and discussion, however, the question was settled for the time being by articles of the Treaty of September 9, 1854, commonly called the Eeciprocity Treaty, as follows : "Article I. It is agreed by the high contracting Parties that, in addition to the liberty secured to the United States fishermen by the above-mentioned Convention of October 20, 1818, of 236 THE TREATY OF WASHINGTON. ' taking, curing, and drying fish on certain coasts of the British North American Colonies therein defined, the inhabitants of the United States shall have, in common with- the subjects of Her Britannic Majesty, the liberty to take fish of every kind, except shell-fish, on the sea-coasts and shores, and in the bays, harbors, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward's Island, and of the several islands thereunto adjacent [and, by another article, Newfoundland], without be ing restricted to any distance from the shore, with permission to land upon the coasts and shores of those Colonies and the islands thereof, and also upon the Magdalen Islands,, for the purpose of drying their nets and curing their fish ; provided that, in so doing, they do not interfere with the rights of pri vate property, or with British fishermen in the peaceable use of any part of the same coast in their occupancy for the same purpose, "It is understood that the above-mentioned liberty applies solely to the sea-fishery, and that the salmon and shad fisheries, and all fisheries in rivers and the mouths of rivers, are hereby reserved exclusively for British fishermen." Similar provision was made in Article H., with like exception, for the admission of British subjects to take fish on a part of the sea-coasts and shores of the United States, It was further agreed that Commissioners should be appointed, who shall " Examine the coasts of the North American provinces and of the United States embraced within the provisions of the first and second articles of this treaty, and shall designate the places reserved by the said articles from the common right of fishing therein," But these provisions were temporary only, being subject to be terminated on a year's notice, after the expiration of ten years, and the treaty was in fact THE FISHERIES. 237 denounced on the 17th of March, 1865, and expired on the 17th of March, 1866. In truth, the United States had purchased the fish ery provisions of this treaty by other provisions to the effect that certain enumerated articles of the growth and produce of the British Colonies of Cana da, New Brunswick, Nova Scotia, Prince Edward's Island, and Newfoundland, or of the United States, should be " admitted into each country respectively free of duty." But the reciprocity here was nearly nominal, the great benefits of the provision inuring to the British Colonies. The fisheries had come to be the incident of a larger question, namely, that of the terms of com mercial intercourse between the United States and the British Colonies in North America. Dissatisfaction in the United States with this state of things led to the denouncement of the treaty, and to* the revival of a controversy between the two Gov ernments regarding the fisheries : which controversy was terminated by the Treaty of Washington. PROVISIONS OF THE TREATY OF WASHINGTON. By Articles XVIII, XIX., and XX., the fishery stipulations of the Treaty of September 9, 1854, are in substance revived, with further provision for the appointment of a Commission to settle any outstand ing question as to the " places " of fishery reserved by either Government. It is further agreed that fish - oil and fish of all kinds, except fish of the inland lakes and of the riv- 238 THE TREATY OF WASHINGTON. ers falling into them, and except fish preserved in oil, being the produce of the fisheries of the United States, or of the Dominion of Canada, or of Prince Edward's Island, shall be admitted in each country respectively free of duty. , Then follows : "Article XXIL Inasmuch as it is asserted by the Govern ment of Her Britannic Majesty that the privileges accorded to the citizens of the United States under Article XVHL of this Treaty are of greater value than those accorded by Arti cles XIX. and XXI. of this Treaty to the subjects of Her Bri tannic Majesty, and this assertion is not admitted by the Gov ernment of the United States, it is further agreed that Com missioners shall be appointed to determine, having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX. and XXI. of this Treaty, the amount of any compensation which, in their opinion, ought to be paid by the Government of the United States to the Government of Her "Britannic Majesty in return for the privileges accorded to the citizens of the United States under Article XVHL of this Treaty ; and that any sum of money which the said Commissioners may so award, shall be paid by the United States Government, in a gross sum, within twelve months after such Award shall have been given." The Commissioners referred to in this article are to be appointed, one by each of the two Govern ments, and the third by the two Governments con jointly, or, in case of disagreement between them, by the Minister at London of the Emperor of Austria and Hungary. The Commission is to sit at Halifax, in the Province of Nova Scotia. With this provision ends the list of Governments concerned in this truly international Treaty, which, in the interests of peace, engages the co-operation of THE FISHERIES. 239 eight sovereign States, namely, Italy, Switzerland, Brazil, Sweden and Norway, Spain, Austria and Hungary, Great Britain, and the United States. PROBABLE AMOUNT OF INDEMNITY. The peculiarity of the arrangement, we see, is that the United States are to make compensation to Great Britain for any excess in vahie of the privileges of fishery accorded to the United States above those accorded to Great Britain. One party asserts, the other denies, such excess of value. This question involves examination of facts,, but it also suggests inquiry of right. What are the privileges which the United States acquire under Article XVIII. of the Treaty of Wash ington ? Certainly not any which they possessed al ready. Now, in virtue of subsisting stipulations of the Treaty of 1818, we possessed the recognized right of fishery along the coasts, and in the bays, harbors, and creeks of British North America, subject, in so far as regards the present question, only to the renunciation which we made in that treaty of th^ liberty previ ously enjoyed or claimed, to take, dry, or cure fish on or within three marine miles of the coasts, bays, creeks, or harbors of certain defined pa/rts of the shores of British America, The Treaty of Washing ton removes this limitation. Hereafter we are to fish on the sea-coasts and shores, and in the bays, harbors, and creeks, previously subject to limitation of three marine miles, "without being restricted to 240 THE TREATY OF WASHINGTON. any distance from the shore." But we are not re quired to pay for any relinquishment on the part of Great Britain of the fictitious claim founded on the erroneous opinion of the Law Officers of the Crown, which, on the false assumption that "headlands" are mentioned in the Treaty of 1818, extends an imagi nary line seaward three marine miles from each cape of bays and indents of the coast, joins the extremities of those two lines by a straight line, and then re quires our fishermen to keep outside of this connect ing line. Deluded by that opinion, the British Gov ernment, indeed, absurdly undertook to exclude us by force from the Bay of Fundy, but failed to main tain its pretension in that respect. What we purchase is the right to enter and fish with in the three marine miles of the shores at the bottom of certain bays, ha/rbors, and creeks (from which alone we were excluded by the Treaty of 1818), disregard ing wholly the opinion of the Law Officers of the Crown. Looking at the clause under consideration, in this its only proper light, it is plain that it can not impose any serious charge on the United States. COMMERCIAL INTERCOURSE AND TRANSPORTATION. 241 CHAPTEE VI. COMMERCIAL INTERCOURSE AND TRANSPOR TATION. TREATY PROVISIONS. Sundry stipulations of the Treaty which relate to rights of navigation, and of transport by land or water, — to concessic»is of commercial intercourse and trans it, — or to the free interchange of objects of produc tion, — are divisible into, first, permanent provisions, and, secondly, temporary provisions. 1. Of permanent provisions we have the following : [a] Great Britain engages that the navigation of the Eiver St. Lawrence, ascending and descending, from the point where it ceases to form the bojundary between the two countries, shall forever remain free and open for the purpose of commerce to the citizens of the United States [Art. XXVL]. The United States engage that the Elvers Yukon, Porcupine, and Stikine, in Alaska, ascending and de scending from, to, and into the sea, shall forever re main free and open for the purpose of commerce to the subjects of Great Britain [Art. XXVL], Eights of local police and regulation are reserved by each Government, .[5] The United States engage that the subjects Q 242 'THE TREATY OF WASHINGTON, of Great Britain shall enjoy the use of the St, Clair Flats' Canal on terms of equality with the inhabitants of the United States [Art, XXVII,], [c] The United States engage to urge on the State Governments, and Great Britain engages to urge on the Dominion of Canada, to secure each to the sub jects or citizens of the other the use on equal terms of the several canals connected with the lakes or riv ers traversed by or contiguous to the boundary-line between the possessions of the high contracting Par ties [Art, XXVII.]. All these are provisions which bring the United States and the Dominion of Canada into fixed rela tions independent of and superior to all questions of Governments. 2, Of temporary provisions we have the following: [a] The navigation of Lake Michigan is declared free and open for the purposes of commerce to the subjects of Great Britain [Art, XX VIII,], [b] ^oods, Avares, and merchandise arriving at the ports of New York, Boston, Portland, or such other ports as the President may designate, and destined for the British possessions in North America, may be entered at the proper custom-house without payment of duties, and conveyed in transit through the terri tory of the United States [Art, XXIX,], And, in like manner, goods, wares, and merchandise arriving at any pf the ports of the British possessions in North America, and destined for the United States, may be entered at the proper custom-house, and conveyed iij transit without the payment of duties COMMERCIAL INTERCOURSE AND TRANSPORTATION. 243 through the said possessions ; and goods, wares, and merchandise may be conveyed in transit Avithout pay ment of duties, from the United States through the said possessions to other places in the United States, or for export from ports in the said possessions [Art, XXIX.]. AIL these rights of transit are, of course, subject to such regulations for the protection of the revenue as the respective Governments may prescribe, [c] Great Britain engages to urge on the Dominion of Canada and the Province of New Brunswick that no export duty or other duty shall be* levied on tim ber cut in that part of the American territory in the State of Maine watered by the Eiver St, John and its tributaries, and floated doAvn that river to the sea, when the same is shipped to the United States from the Province of New Brunswick, \d~\ Subjects of Great Britain may carry in British vessels, without payment of duty, goods, wares, or merchandise from one port or place within the terri tory of the United States upon the St, LaAvrence, the Great Lakes, and the rivers connecting the same, to another port or place Avithin the territory of the United States, provided that a portion of such trans portation is made through the Dominion of Canada by land carriage and in bond [Art, XXX,], Citizens of the United States may carry in United States vessels goods, wares, or merchandise from one port or place within the British possessions in North America to another port or place within the said possessions, provided that a portion of such transpor- 244 THE TREATY OF WASHINGTON. tation is made through the territory of the United States by land carriage and in bond [Art, XXX,]. The United States engage not to impose any export duties on goods, wares, or merchandise carried under this article through the territory of the United States; and Great Britain engages to urge the Do minion of Canada and the other British Colonies not to impose any export duty on goods, wares, or mer chandise carried under this article. It being understood that these respective rights of transit are to be regulated by the two Governments ; and that on the part of the United States the right of transit will be suspended unless th5 Dominion of Canada should establish the exemption from export duties required, and unless the Dominion shall open its canals on equal terms to citizens of the United States, and unless the Dominion and the Province of New Brunswick shall free from all duties the timber cut on the St. John in the State of Maine and export ed to-the United States [Arts. XXX. and XXXI.]. All the provisions of the Treaty from Articles XVHL to XXL inclusive, and Article XXX.,— that is to say, the articles regarding the fisheries and recip rocal right of transit, — are to take effect so soon as the laws required to carry them into operation shall have been passed by the Parliament of Great Britain, by that of Canada, and by the Legislature of Prince Ed ward's Island, on the one hand, and by the Congress of the United States on the other. Such assent having been given, such articles shall remain in force for the period of ten years from the COMMERCIAL INTERCOURSE AND TRANSPORTATION. 245 date at which they may come into operation, and fur ther until the expiration of two years after either of the Parties shall have given to the other notice of its desire to terminate the same : which either may give at the end of the said ten years or at any time after ward [Art. XXXHL]. Temporary as these provisions are, or at least ter minable at the will of either Party, they are equitable in themselves, and advantageous both to the United States and the Canadian Dominion ; and, like the permanent provisions of the Treaty explained in this chapter, they tend to draw the two countries closer and closer together. * The germ of the Treaty of Washington, it is to be remembered, was the suggestion of the British Gov ernment through Sir John Eose, a former Canadian Minister, whose proposal related only to pending questions affecting the British possessions in North America, not Great Britain herself What these questions were Ave partly understand by the stipulations of the Treaty, the whole of which, ex cept those growing out of incidents of the late Civil War, are of interest to Canada, including the maritime Provinces, primarily if not exclusively, although re quiring to be treated in the name of Great Britain. To the arrangements actually made, Canada would have preferred, of course, revival ofthe Elgin-Marcy Eeciprocity Treaty, involving the admission into each country, free of duty, of numerous articles, being the growth and produce of the British Colonies or of the United States. It Avas the desire of Canada to have 246 THE- TREATY OF WASHINGTON. provision made for alleged claims on account of the acts of the Fenians. But the United States would not*listen to either of these propositions : so that the Dominion had opportunity to allege that she was sacrificed tp the Metrppolis, and thus to obtain, by way of compensation, the guaranty on the part of the Imperial Gov'ernment of a large loan for the construc tion of the proposed trans-continental railway from the Great Lakes to the Pacific Ocean. In some respects, the arrangements we have been considering resemble those ofthe Eeciprocity Treaty; but they are much more comprehensive, and they are better *in other respects. We have placed the question of the fisheries on an independent footing. If the American fisheries are of inferior value to the British, — which we do not con cede, — then we are to pay the difference. But the fishery question is no more to be employed by the Dominion of Canada, as it has been heretofore, either as a menace or as a lure, in the hope of thus inducing the United States io revive the Eeciprocity Treaty. Apart from other new provisions in the Treaty of Washington of less moment, there is the all-important one, stipulating for reciprocal right of commercial transit for subjects, of Great Britain through the United States, and for citizens of the United States through the Dominion : in view of which Sir John Macdonald has no cause to regret his participation in the negotiation of the Treaty. Sir Stafford Northcote, in the late debate on the Queen's speech, repels- with force and truth the sug- COMMERCIAL INTERCOURSE AND TRANSPORTATION. 247 gestion of Lord Bury that the Treaty of Washington is unjust to Canada. He shows, on the contrary, that the Treaty is beneficial and acceptable to the Domin ion, specifying particulars, and citing the approbatory votes of the legislative assemblies of the Canadian and maritime Provinces. But the United States will never make another treaty of reciprocal free importation, without includ ing manufactures and various other objects of the production of the United States not comprehended in the schedule, of the Elgin-Marcy Treaty. In fine, Canada must expect nothing of this nature short of a true zollverein involving serious modifications of the commercial relations of Canada to Great Britain. RELATION OF THE BRITISH PROVINCES TO TH^ UNITED » STATES. The Dominion of Canada is one of those " Posses sions," as they are entitled, of Great Britain in Amer ica, which, like Jamaica and other West India Islands, have ceased to be of any economic value to her save as markets, — which in that respect would be of al most as much value' lo her in a state of independence, — which she has invited and encouraged to assume the forms of semi-independent parliamentary govern ment, — which, on the whole, are at all times a charge to her rather than a profit, even in time of peace,^ which would be a burden and a source of embarrass ment rather than a force in time of war, — and which, therefore, she has come to regard, not with complete carelessness perhaps, but Avith sentiments of kindli: 248 THE TREATY OF WASHINGTON. ness and good-will, rather than of the jealous tena- ciousness of sovereign power. When the Dominion shall express desire to put on the dignity of a sover eign State, she will not encounter any obstacles on the part of the Metropolis. In regard to the Dominion of Canada, as to the Colonies ofr Australasia, the power of the Metropolis appe'ars there chiefly in the person of the Gpvernor, and in the occasional annulment of laws of the local legislatures deemed incompatible with those of the Empire. On the other hand, the Colonies, which have necessary relations of their own with neighboring Governments, as in the case of Canada relatively to the United States, can not treat 'thereon them selves, as their interests require they should, but must acr through the intervention of the Metropolis, which, in this respect, may have other interelts of its own superior and perhaps injurious to those of the Colonies. Meanwhile the Dominion has now to prpvide for the cost of her own military defense, and that, not against any enemies of her own, but against possible enemies of the Mother Country. The complications of European or of Asiatic politics may thus envelop the Dominion in disaster, for causes wholly foreign to her, as much so as if she were a sovereign State. In such an emergency, the Dominion would be tempted to assume an attitude of neutrality, if not of indepen dence. All these considerations show how slender is the tie which attaches the Dominion to Great Britain. COMMERCIAL INTERCOURSE AND TRANSPORTATION. 249 The entire history of all European Colonies in America proves that the sentiment of nationality, that is, of attachment to the Mother Country, is very weak, and readily yields place to other sentiments of ambi tion, interest, or passion, so as to produce feelings of hostility bet ween, the inhabitants of the Metropolis and those of the Colonies more intense than such as exist between either of them and the inhabitants of other countries. This fact is particularly remarkable in the incidents of revolution in Spanish America, ex ample of which we have now before the eyes in the insurrection which rages in Cuba. But the same fact appears distinctly in the past history of British America. And there is no reason to suppose that the sentiment of mere loyalty, that is, political attach ment to the Mother Country, is any more strong at present in the Dominion of Canada than it formerly was in the British Colonies now constituting the United States. M. H. Blerzy, in a very instructive essay on the Colonies ofthe British Empire, discussing the question whether the English beyond sea are likely to remain attached to England by recollections of family or of country, observes with great truth that " the very aptitude. for colonization of which the English are so proud could not exist without implying a cer tain insouciance of family on their part and disdain of their native country." How true is this remark! It is illustrated by contrasting the devoted attachment of the French to France, who in our day send so few colonists to 250 THE TREATY OF WASHINGTON. America, and those chiefly Basques, while hundreds of thousands annually emigrate from Great Britain.. Loyal Canadians, that is, loyal to Great Britain, must of necessity take into account this fact, which is of the very essence of British colonization in Amer ica. They are also compelled to regard another se rious fact of the same order of ideas, namely, the con tinual emigration from Canada to the United States, not only on the part of recent immigrants from Great Britain, but, — which is more noticeable as a sign of the times, — the emigration of old Canadians, natives of the soil, in spite of all the efforts of the Govern ment to check and discourage it. On the other hand, the history of all European col onization shows that a time comes when the Mother Country grows more or less indifferent to the fate of her Colonies, which time appears to have arrived in Great Britain as respects the Dominion. When Canada complains [without cause] that her wishes haA^e been disregarded and her interests prejudiced by the stipulations of the Treaty of Washington, the great organ of opinion in England. replies : " From this day forth look after your own busi ness yourselves : you are big enough, you are strong enough, you are intelligent enough, and, if there were any deficiency in either of these points, it wpuld be supplied by the education of self reliance. We are both now in a false position, and the time has ar rived when we should be relieved from it. Take up your freedom : your days of apprenticeship are overP COMMERCIAL INTERCOURSE AND TRANSPORTATION. 251 Instances might be cited of the expression of sim ilar ideas in Parliament. Loyalists in Canada must remember another thing. Montesquieu, Avith the singular penetration Avhich distinguished him, perceives that England imparts to her Colonies "la forme de son Government," by means of which "on verroit se former de grands peu- ples dans les forets memes qu'elle enverroit habiter." But the parliamentary form of Government, which has contributed so greatly to the growth and strength of British Colonies, gave to them facilities of success ful rebellion; — that is, of separation from the Metrop olis, — which no other form of government could im part, and the absence of Avhich in Spanish America [and now in Cuba] has done so much to impede and obstruct their separation from Spain. We had ex perience of this in our Eevolution, where each of the Colonies had a governmental organization so com plete that, in order to be independent de facto, it needed only to ship off the British Governor. The same fact was apparent in our Secession War, as M. de Tocqueville had predicted. And, at this time, the Dominion of Canada needs only to substitute for a British Governor one of her own choice to become a sovereign State organized as completely as Great Britain herself There is another class of considerations of great importance. War between the United States and Great Britain is now a contingency almost inadmissible as supposi tion, and so, of course, is war iDetween the United 252 THE TREATY OF WASHINGTON. States and Canada, a possession of Great Britain. Nevertheless, the capability of a country to main tain itself by force, if need be, is one of the elements of its political life, and therefore can not be over looked in considering the condition of the Dominion of Canada. In regard to Canada the inquiry is the more impor tant, seeing that military force depends in part -on geographical facts, which, in her case, equally as to peace or war, and for the same reasons, place her at disadvantage on the side of the United States. The British possessions in North America, begin ning with Newfoundland on the Atlantic Ocean, and ending with Queen Charlotte's Island oh the Pacific, extend across the continent in its broadest part, a distance of 80° of longitude, but in a high latitude, occupying the whole of the country north of the ter ritory of the United States. The space thus described looks large on the map ; but the greater part of it is beyond the limit of the growth of trees, and much of the residue is too cold to constitute a chosen residence for Europeans. In a word, the Dominion stretches along thousands of miles, without capability of extension on the one side, Avhere it meets the frozen north, or on the other, where it is stopped by the United States. As a country, it resembles a mathematical line, having length without breadth. Meanwhile, owing to their internal position, their northern latitude, and the geographical configuration of the whple country, the two great Provinces of On- COMMERCIAL INTERCOURSE AND TRANSPORTATION. 253 tario and Quebec have no access to the sea in the long winter,, save through the United States. Thus, if it be possible to conceive of two countries, which would appear to be naturally destined to con stitute one Government, they are the United States and the British Provinces, to the special advantage of the latter rather than the former. We therefore can afford to wait. We have nothing. to apprehend from the Dominion Pacific Eailway : if constructed, it will not relieve Ontario and Quebec from their transit dependence on the United States. We Avelcome every sign of prosperity in the Domin ion. With the natural limitations to her growth, and the restricted capacity of her home or foreign mar kets, her prosperity 'will never be sufficient to prevent her landowners and her merchants from looking wist fully toward the more progressive population and the more capacious markets of the United States, Her conspicuous public men may be sincerely loyal to the British Crown ; many of the best rnen of Massachu setts, New York, and Virginia were so at the opening of the American Eevolution ; but neither in French Canada, nor in British Canada, nor in the maritime Provinces, do any forces of sentiment or of interest exist adequate to withstand those potent natural and moral causes, or to arrest that fatal march of events, which have rendered nearly all the rest of America independent of Europe, and can not fail, sooner or later, to reach the same consummation in the Domin ion of Canada. The spirit of independence is a rising tide, in Can- ¦254 THE TREATY OF WASHINGTON. ada as elsewhere in America, which you see in its re sults, if not in its progress. It is like the advancement ofthe sun in the sky, imperceptible as movement, but plain as to stages and ultimate destination. It is not an effect actively produced by, the United States. It is an event which we would not precipitate by violence if we could, and which we scarcely venture to say we wish for, lest in so doing we should possibly wound respectable susceptibilities; but which we neverthe less expect to hail some day with hearty gratulation, as an event auspicious alike to the Dominion and to the United States. ' If Lord Milton's appreciation ofthe course of events be correct, — and no person has written more intelli gently or forcibly on the British side of these ques tions than he, — the Consummation is close at hand. Arguing from the British stand-point of the San Juan Question, he says : " If Great Britain retains the Island of San Juan and the smaller islands of the archipelago lying west ofthe compromise channel proposed by Lord Russell, together with Patos Island and the Sucia group, she will preserve her power^upon the Pacific, and Avill not in any way interfere with or menace the harbors or seas which appertain to the United States. If, on the other hand, these islands should become United States ter ritory, the highway from the British possessions on the main land will be commanded by, and be at the mercy of that Power. . . . "Such a condition of afiairs must inevitably force British Columbia into the United States federation ; and the valuable district of the Saskatchewan . . . must, ex necessitate rei, fol low the fortunes of British Columbia. Canada, excluded from the Pacific, and shut in on two sides by United States terri tory, must eventually follow the same course," COMMERCIAL INTERCOURSE AND TRANSPORTATION. 255 In contemplation of these results, it is difficult to see how any American should fail on reflection to approve the Treaty of Washington. " Two rival Powers," says Provost Paradol, " but which are but one at the point of view of race, of language, of customs, and of laws, predominate on this planet outside of Europe. ¦ . . Destiny has pronounced; and two parts ofthe world at least, America and Oceanica, belong without remedy to the British race. . . . But the actual ascendancy of that race is but a feeble image of what a near future reserves to it." . The time is not remote when the United States and the Dominion of Canada will be associated in these great destinies, whether in close alliance or in more intimate union, it matters little: when "Amer ica," like "Italy," shall cease to be a mere geograph ical denomination, and will comprehend, in a mighty and proud Eepublic, the whole combined British race of North America. But, glorious as such a consummation would be, I would not have it to be save with the cordial con currence of the people of the Dominion, and the con tented acquiescence at least of Great Britain. There is many a page of superlative triumph in the annals of the British Isles, — that England, Scotland, and Ire land of which we in the New World once were, — but not one of her days of victory can equal in lustre that of the day when Great Britain, not less proud of us, " the fairest of her daughters," than of herself, shall extend the right hand of welcome and affection to United America, APPENDIX. TEEATY BETWEEN THE UNITED STATES AND GEEAT BEITAIN, CoNCLDDED Mat 8, 1871 ; Ratifications Exchanged June 17, 1871 ; Pkoclaimed JnLT i, 1871. BY THE PRESIDENT OF THE UNITED STATES OF AMERICA. A PROCLAMATION. Whereas a Treaty, between the United States of America and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, concerning the settlement of all causes of difference between the two countries, was concluded and signed at Washington by the High Commissioners and Plenipotentiaries of the respective Governments on the eighth day of May last ; which Treaty is, word for word, as follows : The United States of America and Her Britannic Majesty, being desirous to provide for an amicable settlement of all causes of difference between the two countries, have for that purpose appointed their respective Plenipotentiaries, that is to say: the President of the United States has appointed, on the part of the United States, as Commissioners in a Joint High Commission and Plenipoten tiaries, Hamilton Fish, Secretary of State ; Robert Cumming Schenck, Envoy Extraordinary and Minister Plenipotentiary to Great Britain ; Samuel Nelson, au Associate Justice of the Supreme Court of the United States ; Ebenezer Rockwood Hoar, of Massachusetts ; and George Henry WiUiams, of Oregon ; and Her Britannic Majesty, on her part, has appointed as her High Commis sioners and Plenipotentiaries, the Right Honorable George Frederick Samuel, Earl de Grey and Earl of Ripon, Viscount Goderich, Bardn Grantham, a Bar onet, a Peer of the United Kingdom, Lord President of Her Majesty's Most Honorable Privy Council, Knight of the Most Noble Order of the Garter, etc., e\c. ; the Right Honorable Sir Stafford Henry Northcote, Baronet, one of Her Majesty's Most Honorable Privy Council, a Member of Parliament, a Com panion of the Most Honorable Order of the Bath, etc., etc. ; Sir Edward Thorn- E 258 APPENDIX. ton. Knight Commander of the Most Honorable Order of the Bath, Her Majes ty's Envoy Extraordinary and Minister Plenipotentiary , to the United States of America ; Sir John Alexander Macdonald, Knight Commander of the Most Honorable Order of the Bath, a member of Her Majesty's Privy Council for Canada, and Minister of Justice and Attorney-General of Her Majesty's Do minion of Canada ; and Mountague Bernard, Esquire, Chichele Professor of In ternational Law in the University of Oxford. And the said Plenipotentiaries, after having exchanged their full powers, which were found to be in due and proper form, have agreed, to and concluded the following articles : Aeticle I. 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 :" And whereas Her Britannic Majesty-has authorized her High Commissioners and Plenipotentiaries to express, in a friendly spirit, the regret felt by Her Maj esty's Government for the escape, under whatever cii-cumstances, of the Ala- bama and other vessels from British ports, and for the depredations committed by those vessels : 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 are not admitted by Her Britannic Majesty's Government, the High Con tracting 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 to a Tribunal of Arbitration to be composed of five Arbitrators, to be appointed in the foUowing manner, that is to say : One shall be named by the President of the United States ; one shall be named by Her Britannic Majesty ; His Majesty the King of Italy shall be requested to name one ; the President of the Swiss Confederation shall be requested to name one ; and His Majesty the Emperor of Brazil shall be requested to name one. In case of the death, absence, or incapacity to serve of any or either of the said Arbitrators, or, in the event of either of the said Arbitrators omitting or declining or ceasing to act as such, the President of the United States, or Her Britannic Majesty, or His Majesty the King of Italy, or the President of the Swiss Confederation, or His Majesty the Emperor of Brazil, as the case may be, may forthwith name another person to act as Arbitrator in the place and stead of the Arbitrator originally named by such Head of a State. And in the event of the refusal or omission for two months after receipt of the request from either of the High Contracting Parties of His Majesty the King of Italy, or the President of the Swiss Confederation, or His Majesty the Em peror of Brazil, to name an Arbitrator either to fill the original appointment or in the place of one who may have died, be absent, or incapacitated, or who may THE TREATY OF WASHINGTON. 259 omit, decline, or from any cause cease to act as such Arbitrator, His Majesty the King of Sweden and Norway shall be requested to name one or more pei- sons,.as the case may be, to act as such Arbitrator or Arbitrators. Article II. The Arbitrators shall meet at Geneva, in Switzerland, at the earliest conveii- ient day after they shall have been named, and shall proceed impartially and carefully to examine and decide all questions that shall be laid before them on the part of the Governments of the United States and Her Britannic Majesty re spectively. All questions considered by the Tribunal, including the final award, shall be decided by a majority of all the Arbitrators. Each of the High Contracting Parties shall also name one person to attend the Tribunal as its agent to represent it generally in all matters connected with the arbitration. Article IIL The written or printed case of each of the two Parties, accompanied by the documents, the official correspondence, and .other evidence on which each relies, shall be delivered in duplicate to each of the Arbitrators and to the agent of the other Party as soon as may be after the organization of the Tribunal, but within a period not exceeding six months from the date of the exchange of the ratifications of this Treaty. Article IV. Within four months after the delivery on both sides of the written or printed case, either Party may, in like manner, deliver in duplicate to each of the said Arbitrators, and to the agent of the other Party, a counter-case, and additional documents, correspondence, and evidence, in reply to the case, documents, corre spondence, and evidence so presented by the other Party. The Arbitrators may, however, extend the time for delivering such counter- case, documents, correspondence, and evidence, when, in their judgment, it be comes necessary, in conseqnfince of the distance of the place from which the evi dence to be presented is to be procured. If in the case submitted to the Arbitrators either Party shall have specified or alluded to any report or document in its own exclusive possession without an nexing a copy, such Party shall be bound, if the other Party thinks proper to apply for it, to furnish that Party with a copy thereof; and either Party may call upon the other, through the Arbitrators, to produce the originals or certified copies of any papers adduced as evidence, giving in each instance such reasonT able notice as the Arbitrators may require. • Article V. It shall be the duty of the agent of each Party, within two months after the expiration of the time limited for the delivery of the counter-case on both sides,J 260 • APPENDIX. to deliver in duplicate to each of the said Arbitrators and to the sCgent of the other party a written or printed argument showing the points and referring to the. evidence upon which his Government relies ; and the Arbitrators may, if they desire further elucidation with regard to sCny point, require a written or printed statement or argument, or oral argument by counsel upon it ; but in such case the other Party shall be entitled to reply either orally or in writing, as the case may be. Article VI. In deciding the matters submitted to the Arbitrators, they shall be governed by the foUowing three rules, which are agreed upon by the High Contracting Parties as rules to be taken as applicable to the case, and by such principles of International Law not inconsistent therewith as the Arbitrators shall determine to have been appUcable to the case. EULES. A neutral Government is bound — First, to use due dUigence to prevent the fitting out, arming, or equipping, vrithin its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace ; and also to use like diligence to prevent the departure from its jurisdic tion of any vessel intended to cruise or carry on war as above, such vessel hav ing been specially adapted, in whole or in part, within such jurisdiction, to war like 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 miUtary supplies or arms, or the recruitment of men. Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obliga tions and duties. Her Britannic Majesty has commanded her High Commissioners and Pleni- ¦potentiaries to declare that Her Majesty's Government can not assent to the foregoing rules 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 provis ion for the future, agrees that, in deciding the questions between the two coun tries arising out of those claims, the Arbitrators should assume that Her Maj esty's Government had undertaken to act upon the principles set forth in these Tules. And the High Contracting Parties agree to obsei-ve 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. THE TREATY OF WASHINGTON. 261 Article VII. The decision of the Tribunal shaU, if possible, be made within three months from the close of the argument on both sides, It shaU be made in writing and dated, and shaU be signed by the Arbitrators who may assent to it. The said Tribunal shaU first determine as to each vessel separately whether Great Britain has, by any act or omission, failed to fulfiU any of the duties set forth in the foregoing three rules, or recognized by the principles of Internation al Law not inconsistent with such rules, and shall certify such fact as to each of the said vessels. In case the Tribunal find that Great Britain has faUed to fulfiU 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. The award shall be in dupUcata, one copy whereof shaU be delivered to the agent of the United States for his Government, and the other copy shaU be de livered to the agent of Great Britain for his Government. Article VIII. Each Government shaU pay its own agent, and provide for the proper remu neration of the counsel employed by it and of the Arbitrator appointed by it, and for the expense of preparing and submitting its case to the Tribunal. AU other expenses connected with the arbitration shaU be defrayed by the two Govern ments in equal moieties. Article IX. The Arbitrators shaU keep an accurate record of their proceedings, and may appoint and employ the necessary oiBcers to assist them. Article X. In case the Tribunal finds that Great Britain has failed to fulfiU 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 de-i termine what claims are valid, and what amount or amounts shaU be paid by Great Britain to the United States on account of the liabiUty arising from such failure, as to each vessel, according to the extent of such UabiUty as de cided by the Arbitrators. The Board of Assessors shaU be constituted as foUows : One member there of shall be named by the President of the United States, one member thereof shaU be named by Her Britannic Majesty, and one member thereof shall be 262 APPENDIX. named by the Representative at Washington of His Majesty the Eng of Italy ; and in case of a vacancy happening from any cause, it shaU be fiUed in the same manner in which the original appointment was made. As soon as possible after such nominations the Board of Assessors shall be organized in Washington, with power to hold their sittings there, or in New York, or in Boston. The members thereof shaU severally subscribe a solemn declaration that they will impartiaUy and carefuUy examine and decide, to the best of their judgment and according to justice and equity, all matters submit ted to them, and shaU forthwith proceed, under such rules and regulations as they may prescribe, to the investigation of the claims which shaU be presented to them by the Government of the United States, and shall examine and de cide upon them in such order and manner as they may think proper, but upon such evidence or information oply as shall be furnished by or on behalf of the Governments of the United States and of Great Britain respectively. They shaU be bound to hear on each separate claim, if required, one person on be half of each Government, as counsel or agent. A majority of the Assessors in each case shaU be sufficient for a decision. ¦ The decision of the Assessors shall be given upon each claim in writing, and shaU be signed.by them respectively and dated. Every claim shall be presented to the Assessors within six months from the day of their first meeting ; but they may, for good cause shown, extend the time for the presentation of any claim to a further period not exceeding three months. The Assessors shaU report to each Government at or before the expiration of one year from the date of their first meeting the amount of claims decided by them up to the date of such report ; if further claims then remain undecided, they shall make a further report at or before the expiration of two years from the date of such first meeting ; and in case any claims remain undetermined at that time, they shall make a final report within a further period of six months. The report or reports shall be made in dupUcate, and one copy thereof shall be deUvered to the Secretary of State of the United States, and one copy there of to the Representative of Her Britannic Majesty at Washington. AU sums of money which may be awarded under this article shaU be payable at Washington, in coin, within twelve months after the delivery of each report. The Board of Assessors may employ such clerks as they shaU think neces sary. The expenses of the Board of Assessors shaU be borne equally by the two Governments, and paid from time to time, as may be founc^ expedient, on the production of accounts certified by the Board. The remuneration of the As sessors shaU also be paid by the two Governments in equal moieties in a simi lar manner. Article XI. The High Contracting Parties engage to consider the result of the proceed ings ofthe Tribunal of Arbitration and of the Board of Assessors, should such THE TREATY OF WASHINGTON. 263 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, prefer red, or laid before the Tribunal or Board, shall, from and after the conclusion of the proceedings ¦ of the Tribunal or Board, be considered and treated as fi nally settled, barred, and thenceforth inadmissible. Article XII. The High Contracting Parties agree that all claims on the part of corpora tions, companies, or private individuals, citiaens of the United States, upon the Government of Her Britannic Majesty, arising out of acts committed against the persons or property of citizens of the United States during the period be tween the thirteenth of April, eighteen hundred and sixty-one, and the ninth of April, eighteen hundred and sixty-five, inclusive, not being claims growing out of the acts of the vessels referred to in Article I. of this Treaty, and all claims, with the like exception, on the part of corporations, companies, or pri vate individuals, subjects of Her Britannic Majesty, upon the Government of the United States, ai-ising out of acts committed against the persons or prop erty of subjects of Her Britannic Majesty during the same period, which may have been presented to either Government for its interposition with the other, and which yet remain unsettled, as well as any other such claims which may be presented within the time specified in Article XIV. of this Treaty, shaU he re ferred to three Commissioners, tp be appointed in the foUowing manner, that is to say: One Commissioner shall be named by the President of the United States, one by Her Britannic Majesty, and a third by the President of the United States and Her Britannic Majesty conjointly; and in case the third Commissioner shall not have been so named within a period of three months from the date of the exchange of the ratifications of this Treaty, then the third Commissioner shaU be named by the Representative at Washington of His Majesty the King of Spain. In case of the death, absence, or inca pacity of any Commissioner, or in the event of any Commissioner omitting or ceasing to act, the vacancy shall be filled in the manner hereinbefore pro vided for making the original appointment ; the period of three months in case of such substitution being calculated from the date of the happening of the vacancy. The Commissioners so named shall meet at Washington at the earliest con venient period after they have been respectively named ; and shall, before pro ceeding to any business, make and subscribe a solemn declaration that they will impartially and carefully examine and decide, to the best of their judgment, and according to justice and equity, all such claims as shall be laid before them on the part of the Governments pf the United States and of Her Britannic Maj esty, respectively ; and such declaration shaU be entered on the record of their proceedings. 264 APPENDLK. Article XIII. The Commissioners shaU then forthwith proceed to the investigation of the claims which shaU be presented to them. They shall investigate and decide such claims in such order and such manner as they may think proper, but upon such evidence or information onl/ as shaU be furnished by or on behalf of the respective Governments. They shall be bound to receive and consider aU writ ten documents or statements which may be presented to them by or on behalf of the respective Governments in support of, or in answer to, any claim, and to hear, if required, one person on each side, on behalf of each Government, as counsel or agent for such Government, on each and eveiy separate claim. A majority of the Commissioners shall be stifBcient for an award in each case. The award shaU be given upon each claim in writing, and shall be signed by the Commissioners assenting to it. It shaU be competent for each Government to name one person to attend the Commissioners as its agent, to present and support claims on its behalf, and to answer claims made upon it, and to repre sent it generaUy in all matters connected with the investigation and decision thereofr The High Contracting Parties hereby engage to consider the decision of the Commissioners as absolutely final and conclusive upon each claim decided upon by them, and to give fuU effect to such decisions without any objection, eva sion, or delay whatsoever. Article XIV. Every claim shaU be presented to the Commissioners within six months from the day of their first meeting, unless in any case where reasons for delay shaU be established to the satisfaction of the Commissioners, and then, and in any such case, the period for presenting the claim may be extended by them to any time not exceedipg three months longer. The Commissioners shall be bound to examine and decide upon every claim within two years from the day of their first meeting. It shaU be competent for the Commissioners to decide in each case whether any claim has or has not been duly made, preferred, and laid before them, either wholly or to any and what extent, according to the true intent and meaning of this Treaty. Article XV. All sums of money which may be awarded by the Commissioners on account of any claim shaU be paid by the one Government to the other, as the case may be, within twelve months after the date of the final award, without interest, and without any deduction save as specified in Article XVI. of this Treaty. • Article XVI. The Commissioners shaU keep an accurate record and con-ect minutes or notes of aU their proceedings, with the dates thereof, and may appoint and em- THE TREATY OF WASHINGTON. 265 ploy a secretary, and any other necessary oflBcer or officers, to assist them in the transaction of the business which may come before them. Each Government shaU pay its own Commissioner and agent or counsel. All other expenses shaU be defrayed by the two Governments in equal moieties. The whole expenses of the Commission, including contingent expenses, shall be defrayed by a ratable deduction on the amount of the sums awarded by the Commissioners, provided always that such deduction shaU not exceed the rate of five per cent, on the sums so awarded. Article XVII. The High" Contracting Parties engage to consider the result of the proceed ings of this Commission as a full, perfect, and final settlement of all such claims as are mentioned in Article XII. of this Treaty upon either Government ; and further: engage that every such claim, whether or not the same may have been presented to the notice of, made, preferred, or laid before the said Commission, shall, from and after the conclusion of the proceedings of the said Commission, be considered and treated as finaUy settled, barred, and thenceforth inadmis sible. Article XVIIL It is agreed by the High Contracting Parties that, in addition to the liberty secured to the United States fishermen by the Convention between the United States and Great Britain, signed at London on the 20th day of October, 1818, of taking, curing, and drying fish on certain coasts of the British North Amer ican Colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in Article XXXIII. of this Treaty, to take fish of every kind, except sheU-fish, on the sea-coasts and shores, and in the bays, harbors, and creeks, of the Provinces of Quebec, Nova Scotia, and New Brunswick, and the Colony of Prince Edward's Island, and of the several islands thereunto ad jacent, without being restricted to any distance from the shore, with permission to laiid upon the said coasts and shores and islands, and also upon the Magda len Islands, for the purpose of drying their nets and curing their fish ; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen in the peaceable use of any part of the said coasts in their occupancy for the same purpose. It IS understood that the above-mentioned liberty applies solely to the sea fishery, and that the salmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers, are hereby reserved exclusively for Bi-itish fishermen. Article XIX. It is agreed by the High Contracting Parties that British subjects shall have, in common with the citizens of the United States, the Uberty, for the tenn of 266 APPENDIX. years mentioned in Article XXXIII. of this Treaty, to take fish of every kind, except sheU-fish, on the eastern sea-coasts and shores of the United States north of the thirty-ninth parallel of north latitude, and on the shores of the sev eral islands thereunto adjacent, and in the bays, harbors, and creeks of the said sea-coasts and shores of the United States and of the said islands, without being restricted to any distance from the shore, with permission to land upon the said coasts of the United States and of the islands aforesaid, for the pur pose of drying their nets and curing their fish ; provided that, in so doing, they do not interfere with the rights of private property, or with fhe fishermen of the United States in the peaceable use of any part of the said coasts in their occu pancy for the same purpose. It is understood that the above-mentioned liberty appUes solely to the sea fisheiy, and that salmon and shad fisheries, and all other fisheries in rivers and mouths of rivers, are hereby reserved exclusively for fishermen of the United States. Article XX. It is agreed that the places designated by the Commissioners appointed un der the First Article ofthe Treaty between the Unitfed States and Great Britain, concluded at Washington on the 5th of June, 1854, upon the coasts of Her Bri tannic Majesty's Dominions and the United States, as places reserved from the common right of fishing under that Treaty, shall be regarded as in like manner reserved from the common right of fishing under the preceding articles. In case any question should arise between the Governments of the United States and of Her Britannic Majesty as to the common right of fishing in placiss not thus designated as reserved, it is agi-eed that a Commission shaU be appointed to designate such places, and shaU be constituted in the same manner, and have the same powers, duties, and authority as the Commission appointed under the said First Article ofthe Treaty ofthe 5th of June, 1854. Article XXI. It is agreed that, for the term of years mentioned in Article XXXIII. of this Treaty, fish-oU and fish of aU kinds [except fish of the inland lakes, and of the rivers falling into them, and except fish preserved in oil], being the produce of the fisheries ofthe United States, or of the Dominion of Canada, or of Prince Edward's Island, shaU be admitted into each country, respectively, free of duty. Article XXIL Inasmuch as it is asserted by the Government of Her Britannic Majesty that the privileges accorded to the citizens of the United States under Article XVIIL of this Treaty are of greater value than those accorded by Articles XIX. and XXI. of this Treaty to the subjects of Her Britannic Majesty, and this assertion THE TREATY OF WASHINGTON. 267 is not admitted by the Government of the United States, it is further agreed that Commissioners shaU be appointed to determine, having regard to the privi leges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX. and XXI. of this Treaty, the amount of any compensa tion which, in their opinion, ought to be paid by the Government of the United States to the Government of Her Britannic Majesty in return for the privileges accorded to the citizens of the United States under Article XVIIL of this Treaty ; and that any sum pf money which the said Commissioners may so award shall be paid by the United States Government, in a gross sum, within twelve months after such award shall have been given. • Article XXIII. The Commissioners referred to in the preceding article shall be appointed in the foUowing manner, that is to say : One Commissioner shall be named by the President of the United States, one by Her Britannic Majesty, and a third by the President of the United States and Her Britannic Majesty conjointly ; and in case the third Commissioner shall not have been so named within a period of three months from the date when this article shall take effect, then the third Commissioner shall be named by the Representative at London of His Majesty the Emperor of Austria and King of Hungary. In case of the death, absence, or incapacity of any Commissioner, or in the event of any Commissioner omitting or ceasing to act, the vacancy shall be filled in the manner hereinbefore pro vided for making .the original appointment, the period of three months in case of such substitution being calculated from the date ofthe happening ofthe vacancy. The Commissioners so named shaU meet in the City of Halifax, in the Prov ince of Nova Scotia, at the earliest convenient period after they have been re spectively napied, and shall, before proceeding to any business, make and sub scribe a solemn declaration that they will impartiaUy and carefuUy examine and decide the matters referred to them to the best of their judgment, and ac cording to justice and equity ; and such declaration shall be entered on the record of their proceedings. Each of the High Contracting Parties shall also name one person to attend the Commission as its agent, to represent it generally in all'ttiatters connected with the Commission. Article XXIV. The proceedings shall be conducted in such order as the Commissioners ap pointed under Articles XXIL and XXIII. of this Treaty shaU determine. They shall be bound to receive such oral or written testimony as either Government may present. If either Party shall offer oral testimony, the other Party shall have the right of cross-examination, under such mles as the Commissioners shall prescribe. If in the case submitted to the Commissioners either Party shaU have speci- 268 APPENDIX. fied or aUuded to any report or document in its own exclusive possession, with out annexing a copy, such Party shaU be bound, if the other Party thinks prop er to apply for it, to furnish that Party with a copy thereof; and either Party may call upon the other, through the Commissioners, to produce the originals or certified copies of any papers adduced as evidence, giving in each instance such reasonable notice as the Commissioners may require. ^ The case on either side shall be closed within a period of six months from the date of the organization of the Commission, and the Commissioners shall be requested to give their award as soon as possible thereafter. The aforesaid period of six months may be extended for three months in case of a vacancy oc curring among the Commissioners under the circumstances contemplated in Article XXIII. of this Treaty. Article XXV. The Commissioners shall keep an accurate record and connect minutes or notes of all their proceedings, with the dates thereof, and may appoint and em ploy a secretary, and any other necessary officer or officers, to assist them in the transaction of the business which may come before them. Each of the High Contracting Parties shall pay its own Commissioner and agent or counsel ; aU other expenses shall be defrayed by the two Governments in equal moieties. Article XXVL The navigation of the River St. Lawrence, ascending and descending, from the forty-fifth paraUel of north latitude, where it ceases to form the boundary between the two countries, from, to, and into the sea, shaU forever remain free and open for the purposes of commerce to the citizens of the United States, sub ject to any laws and regulations of Great Britain, or of the Dominion of Canada, not incpnsistent with such privilege of free navigation. The navigation of the Rivers Yukon, Porcupine, and Stikine, ascending and descending, from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the subjects of Her Britannic Majtesty and to the cit^ izens of the United States, subject to any laws and regulations of either country within its own territory not inconsistent with such privilege of free navigation. Article XXVII. The Government of Her Britannic Majesty engages to urge upon the Govern ment of the Dominion of Canada to secure to the citizens of the United States the use ofthe Wellaud, St. Lawrence, and other canals in the Dominion on terms of equaUty with the inhabitants of the Dominion ; and the Government of the United States engages that the subjects of Her Britannic Majesty shall enjoy the use of the St. Clair Flats' Canal on terms of equality with the inhabitants of the United States, and further engages to urge upon the State Governments THE TREATY OF WASHINGTON. 269 to secure to the subjects of Her Britannic Majesty the use of the several State canals connected with the navigation of the lakes or rivers traversed by or con tiguous to the boundaiy-hne between the Possessions of the High Contracting Parties, on terms of equaUty with the inhabitants of the United States. Article XXVIII. The navigation of Lake Michigan shall also, for the term of years mentioned in Article XXXHL of this Treaty, be free and open for the purposes of com merce to the subjects of Her Britannic Majesty, subject to any laws and reg ulations of the United States or of the States bordering thereon not inconsist ent with such privUege of free navigation. Article XXIX. It is agi'eed that, for the term of years mentioned in Article XXXIII. of this Treaty, goods, wares, or merchandise arriving at the ports of New York, Bos ton, and Portland, and any other ports in the United States which have been or may, from time to time, be specially designated by the President of the United States, and destined for Her Britannic Majesty's Possessions in North Ameri ca, may be entered at the proper ciistom-house and conveyed in transit, with out the payment of diities, through the territory of the United States, under such rules, regulations, and conditions for the protection of the revenue as the Gov ernment of the United States may from time to time prescribe ; and, under like rules, regulations, and conditions, goods, wares, or merchandise may be con veyed in transit, without the pa3Tnent of duties, from such Possessions through the territory of the United States for export from the said ports of the United States. It is further agi-eed that, for the like period, goods, wares, or merchandise aiTiving at any of the ports of Her Britannic Majesty's Possessions in North America, and destined for the United States, may be entered at the proper cus tom-house and conveyed in transit, without the payment of duties, through the said Possessions, under such rules and regulations and conditions for the pro tection of the reyepue as the Governments of the said Possessions may from time to time prescribe ; and, under Uke rules, regulations, and conditions, goods wares, or merchandise may be conveyed in transit, without payment of duties, from the United States through the said Possessions to other places in the United States, or for export from ports in the said Possessions. • Article XXX. It is agreed that, for the term of years mentioned in Article XXXIII. of this Treaty, subjects of Her Britannic Majesty may carry in British vessels, without payment of duty, goods, wares, or merchandise from one port or place 270 APPENDIX. within the territory of the United States upon the St. Lawrence, the Great Lakes, and the rivers connecting the same, to another port or place within the territory of the United States as aforesaid : Provided, that a portion of such transportation is made through the Dominion of Canada by land carriage and in bond, under such rules and regulations as may be agreed upon between the Government of Her Britannic Majesty and the Government of the United' ¦States. Citizens of the United States may for the like period carry in United States vessels, without payment of duty, goods, wares, or merchandise from one port or place within the Possessions of Her Britannic Majesty in North America to another port or place within the said Possessions : Provided, that a portion of such transportation is made through the territory of the United States by land can-iage alnd in bond, under such rules and regulations as may be agreed upon between the Government of the United States and the Government of Her Bri tannic Majesty. The Government of the United States further engages not to impose any ex port duties on goods, wares, or merchandise carried under this article through the territory of the United States ; and Her Majesty's Government engages to urge the Pai-Uament of the Dominion of Canada and the Legislatures of the other Colonies not to impose any export duties on goods, wares, or merchandise car ried under this article ; and the Government of the United States may, in case such export duties are imposed by the Dominion of Canada, suspend, during the period that such duties are imposed, the right of carrying granted under this article in favor of the subjects of Her Britannic. Majesty. The Government of the United States may suspend the right of carrying granted in favor of the subjects of Her Britannic Majesty under this article, in case the Dominion of Canada should at any time deprive the citizens of the United States of the use of the canals in the said Dominion on terms of equal ity with the inhabitants of the Dominion, as provided in Article XXVII. Article XXXL The Government of Her Britannic Majesty further engages to urge upon the ParUament of the Dominion of Canada and the Legislature of New Brunswick that no export duty, or other duty, shall be levied on lumber or timber of any kind cut on that portion ofthe American territory in the State of Maine watered. by the River St. John and its tributaries, and fioated down that river to the sea, when the same is shipped to the United States from the Province of New Brunswick. And, in case any such export or other duty continues to be levied after the expiration of one year from the date of the exchange of the ratifica tions of this Treaty, it is agreed that the Government of the United States may suspend the right of carrying hereinbefore granted under Article XXX. of this Treaty for such period as such export or other duty may be levied. THE TREATY OF WASHINGTON. 271 Article XXXII. It is further agreed that the provisions and stipulations of Articles XVIII to XXV. of this Treaty, inclusive, shaU extend to the Colony of Newfoundland so far as they are applicable. But if the Imperial ParUament, the Legislature of Newfoundland, or the Congress of the United States, shaU not embrace the Colony of Newfoundland in their laws enacted for carrying the foregoing arti cles into effect, then this article shaU be of no effect ; but the omission to make provision by law to give it effect, by either of the legislative bodies aforesaid, shall not in any way impair any other articles of this Treaty. Article XXXIIL The foregoing Articles XVHL to XXV., inclusive, and Article XXX. of this Treaty, shaU take effect as soon as the laws required to carry them Into operation shaU have been passed by the Imperial ParUament of Great Britain, by the Pai-Uament of Canada, and by the Legislature of Prince Edward's Isl and on the one hand, and by the Congress of the United States on the other. Such assent having been given, the said articles shaU remain in force for the period of ten years from the date at which they may come into operation ; and further until the expiration of two years after either of the High Contracting Parties shaU have given notice to the other of its wish to terPiinate the same ; each ofthe High Contracting Parties being at liberty to give such notice to the other at the end of the said period of ten years or at any time afterward. Article XXXIV. Whereas it was stipulated by Article I. of the Treaty concluded at Washing ton on the 15th of June, 1846, between the United States and Her Britannic Majesty, that the line of boundary between the territories of the United States and those of Her Britannic Majesty, from the point on the forty-ninth parallel of north latitude up to which it had already been ascertained, should be con tinued westward along the said paraUel of north latitude " to the middle of the channel which separates the continent from Vancouver's Island, and thence southerly, through the middle of the said channel and of Fuca Straits, to the Pacific Ocean;" and whereas the Commissioners appointed by the two High Contracting Parties to determine that portion of the boundary which runs southerly through the middle of the channel aforesaid were unable to agree upon the same ; and whereas the Government of Her Britannic Majesty claims that such boundary-line should, under the terms of the Treaty above recited, be run through the Rosario Straits, and the Government of the United States claims that it should be run through the Canal de Haro, it is agreed that the respective claims of the Government of the United States and of the Govern ment of Her Britannic Majesty shaU be submitted to the arbitration and award 272 APPENDIX. of His Majesty the Emperor of Germany, who, having regard to the above- mentioned article of the said Treaty, shaU decide thereupon, finally and with out appeal, which of those claims is most in accordance with the true interpre tation of the Treaty of June 15, 1846. Article' XXXV. The award of His Majesty the Emperor of Germany shall be considered as absolutely final and conclusive ; and fuU effect shaU be given to suet award without any objection, evasion, or delay whatsoever. Such decision shaU be given in writing and dated ; it shaU be in whatsoever form His Majesty may choose to adopt ^ it shall be deUvered to the Representatives or other public Agents ofthe United States and of Great Britain, respectively, who may be actu aUy at BerUn, and shall be considered as operative from the day of the date of the deUvery thereof. Article XXXVI. The written or printed case of each of the two Parties, accompanied by the evidence offered in support of the same, shaU be laid before His Majesty tlje Emperor of Germany within six months from the date of the exchange ofthe ratifications of this Treaty, and a copy of such case and evidence shaU be com municated by each Party to the other, through their respective Representatives at BerUn. The High Contracting Parties may include in the evidence to be considered by the Arbitrator such documents, official correspondence, and other official or pubUc statements bearing on the subject of the reference as they may consider necessary to the support of their respective cases. After the written or printed, case shall have been communicated by each Party to the other, each Party sh^U have the power of drawing up and laying before the Arbitrator a second and definitive statement, if it think fit to do so, in reply to the case of the other party so communicated, which definitive state ment shaU be so laid before the Arbitrator, and also be mutually communicated in the same manner as aforesaid, by each Party to the other, within six months from the date of laying the first statement of the case before the Arbitrator. Article XXXVIL If, in the case submitted to the Arbitrator, either Party shaU specify or allude to any report or document in its ovm exclusive possession without annexing a copy, such Party shall be bound, if the other Party thinks proper to apply for it, to furnish that Party with a copy thereof, and either Party may caU upon the other, through -the Arbitrator, to produce the originals or certified copies of any papers adduced as evidence, giving in each instance such reasonable no tice as the Arbitrator Jnay require. And if the Arbitrator should desire fur- THE TREATY OF WASHINGTON. 273 ther elucidation or evidence with regard to any point contained in the state ments laid before him, he shaU be at liberty to require it from either Party, and he shaU be at liberty to hear one counsel or agent for each Party, in relation to any matter, and at such time, and in such manner, as he may think fit. Article XXXVIIL The Representatives or other pubUc Agents of the United States and of Great Britain at Berlin, respectively, shall be considered as the Agents of their respective Governments to conduct their cases before the Arbitrator, who shall be requested to address all his communications, and give all his notices, to such Representatives or other public Agents, who shall represent their respective Governments generally in all matters connected with the arbitration. Article XXXIX. It shaU be competent to the Arbitrator to proceed in the said arbitration, and all matters relating thereto, as and when he shaU see fit, either in person, or by a person or persons named by him for that purpose, either in the presence or absence of either or both Agents, and either oraUy or by written discussion or otherwise. Article XL. Thfe Arbitrator may, if he think fit, appoint a secretary or clerk for the purposes of the proposed arbitration, at such rate of remuneration as he shall think proper. This, and all other expenses of and connected with the said ar bitration, shall be provided for as hereinafter stipulated. Article XLI. The Arbitrator shaU be requested to deliver, together with his award, an ac count of aU the costs and expenses which he may have been put to in relation to this matter, which shaU forthwith be repaid by the two Governments in equal moieties. Article XLII. The Arbitrator shall be requested to give his award in writing as early as convenient after the whole case on each side shall have been laid before him, and to deUver one copy thereof, to each of the said agents. Article XLIII. The present Treaty shall be duly ratified by the President of the United States of America, by and with the advice and consent of the Senate thereof, s 274 APPENDIX, and by Her Britannic Majesty ; and the ratifications shaU l^e exchanged either at Washington or at London within six months from the date hereof, or earUer if possible. In faith whereof, we, the respective Plenipotentiaries, have signed this Treaty and have hereunto affixed our seals. Done in dupUcate at Washington the eighth day of May, in the year of our Lord one thousand eight hundred and seventy-one. [l. s.] Hamilton Fish. [l. s.] Robt. C. Schenck. [l. s.] Samuel Nelson. [l. s.] Ebenezer Rockwood Hoak. [l. s.] Geo. H. Williams. [l. s.] De Grey & Ripon. [l. s.] Stafford H. Northcote. [l. s.] Edwd. Thornton. [l. s.] * John A. Macdonald. [l. s.] Mountague Bernard. And whereas the said Treaty has been duly ratified on both parts, and the respective ratifications of the same were exchanged in the city of London, on the seventeenth day of June, 1871, by Robert C. Schenck, Envoy Extraordinary and Minister Plenipotentiary of the United States, and Earl GranviUe, Her Majesty's Principal Secretary of State for Foreign Affairs, ou the part of their respective Governments : Now, therefore, be it known that I, Ultsses S. Grant, President of the United States of America, have caused the said Treaty to be made public, to the end that the same, and every clause and article thereof, may be observed and fulfiUed with good faith by the United States and the citizens thereof. In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the City of Washington this fourth day of July, in the year of our Lord one thousand eight hundred and seventy-one, and of the Inde- I S£AL> J pendence of the United States the ninety-sixth. TJ. S. Grant. By the President : Hamilton Fish, Secretary of State. THE DECISION AND AWARD. 275 DECISION AND AWAED Made hy the Tribunal of Arbitration constituted by virtue of the first Article ofthe Treaty concluded at Washington the Sth of May, 1871, between Her Majesty the Queen of the United Kingdom of Great Britain and Ireland and the United States of America. • Her Britannic Majesty and the United States of America having agreed by Article I. of the Treaty concluded and signed at Washington the 8th of May, 1871, to refer aU the claims "genericaUy known as the Alabama Claims" to a I Tribunal of Arbitration to be composed of five Arbitrators, named : One by Her Britannic Majesty, One by the President of the United States, One by His Majesty the King of Italy, One by the President of the Swiss Confederation, One by His Majesty the Emperor of BrazU ; and Her Britannic Majesty, the President of the United States, H. M. the King of Italy, the President of the Swiss Confederation, and H. M. the Emperor of BrazU, having respectively named their Arbitrators, to wit : Her Britannic Majesty : Sir Alexander James Edmund Cockburn, Baronet, a Member of Her Maj esty's Privy CouncU, Lord Chief Justice of England ; The President of the United States : Charles Francis Adams, Esquire ; His Majesty the King of Italy : His ExceUency Count Frederic Sclopis of Salerano, a Knight of the Order of the Annunciata, Minister of State, Senator of the Kingdom of Italy ; The President of the Swiss Confederation : Mr. James StsempfU ; His Majesty the Emperor of BrazU : His Excellency Marcos Antonio d'Araujo, Viscount of Itajubd, a Grandee ^ of the Empire of BrazU, Member of the CouncU of H. M. the Emperor of BrazU, and his Envoy Extraordinary and Minister Plenipotentiary in France ; And the five Arbitrators above named having assembled at Geneva, in Switz erland, in one of the Chambers of the H6tel de ViUe, on the 15th of December, 1871, in conformity with the terms ofthe Second Article of the Treaty of Wash ington of the Sth of May of that year, and having proceeded to the inspection 276 APPENDIX. and verification of their respective powers, which were found duly authenticated, the Tribunal of Arbitration was declared duly organized. The Agents named by each ofthe High Contracting Parties, by virtue of the same Second Article, to wit : t • For Her Britannic Majesty : Charles StUart Aubrey, Lord Tenterden, a Peer of the United Kingdom, Companion of the Most Henorable Order of the Bath, Assistant Under- Secretary of State for Foreign Affairs ; ¦ And for the United States of America : John C. Bancroft Davis, Esquire ; whose powers ^^re found likewise duly authenticated, then deUvered to each of the Arbitrators the printed Case prepared by each of the two Parties, accompa nied by the documents, the official correspondence, and other evidence on which each relied, in conformity with the terms ofthe Third Article ofthe said Treaty. In virtue of the decision made by the Tribunal at its first session, the Coun ter-Case, and additional documents, correspondence, and, evidence, referred to in Article IV. of the said Treaty, were delivered by the respective Agents of the two Parties to the Secretary of the Tribunal ou the 15th of AprU, 1872, at the Chamber of Conference, at the Hotel de ViUe of Geneva. The Tribunal, in accordance with the vote of adjournment passed at their second session, held on the 16th of December, 1871, reassembled at Geneva on the 15th of June, 1872 ; and the Agent of each of the Parties duly delivered to each of the Arbitrators and to the Agent of the other Party the printed Argu ment referred to in Article IV. of the said Treaty. The Tribunal having since fully taken into their consideration the Treaty, and also the cases, counter-cases, documents, evidence, and arguments, and likewise all other communications made to them by the two Parties during the progress of their sittings, and having impartially examined the same. Has arrived at the decision embodied in the present Award : Whereas, having regard to the Sixth and Seventh Articles of the said Treaty, the Arbitrators are bound under the terms ofthe said Sixth Article, "in decid ing the matters submitted to them, to be governed by the three Rules therein specified, and by such principles of International Law not inconsistent there with as the Arbitrators shall determine to have been appUcable to the case ;" And whereas the " due diUgence " referred to in the first and third of the said Rules ought to be exercised by neutral Governments in exact proportion to the risks to which either of the beUigerents may be exposed from a faUure to fulfill the obligations of neutraUty on their part ; A And whereas the circumstances out of which the facts constituting the sub ject-matter of the present controversy arose were of a nature to call for the exercise on the part of Her Britannic Majesty's Government of aU possible so licitude for the observance of the rights and the duties involved in the Procla mation of Neutrality issued by Her Majesty on the 13th day of May, 1861 ; J^M wherfias the effects of a violation of neutraUty committed by means of THE DECISION AND AWARD. 277 the construction, equipment, and armament of a vessel are not done away with by any commission which the Government of the belligerent Power benefited by the violation of neutrality may afterward have granted to that vessel: and the ultimate step, by which the offense is completed, can not be admissible as a ground for the absolution ofthe offender; nor can the consummation of his ffaud become the means of establishing his innocence • And whereas the privilege of exterritoriality accorded to vessels of war has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality ; And whereas the absence of a previous notice can not be regarded as a faU ure in any consideration required by the law of nations in those cases in which a vessel carries with it its own condemnation ; And whereas, in order to«impart to any suppUes of coal a character incon sistent with the secondjRule, prohibiting the use of neutral ports or waters as a base of naval operations fer a beUigerent, it is necessary that the said suppUes should be connected with special circumstances of time, of persons, or of place, which may combine to give them such character ; And whereas, with respect to the vessel called the Alabama, it clearly results from aU the facts relative to the construction of the ship at first designated by the "No. 290" in the port of Liverpool, and its equipment and armament in the vicinity of Terceira, through the agency of the vessels caUed the Agrippina and the Bahama dispatched from Great Britain to that end, that the British Government failed to use due diligence in the performance of its neutral obli gations ; and especially that it omitted, notwithstanding the warnings and offi cial representations made by the diplomatic agents of the United States during the construction of the said "No. 290," to take in due time any effective meas ures of prevention, and that those orders which it did give at last for the deten tion of the vessel were issued so late that their execution was not practicable ; And whereas, after the escape of that vessel, the measures taken for its pursuit and arrest were so imperfect as to lead to no result, and therefore can not be con sidered sufficient to release Great Britain from the responsibUity already incurred ; And whereas, in despite of the violations of the neutrality of Great Britain committed by the " 290, " this same vessel, later known as the Confederate cruiser A tabama, was on several occasions freely admitted into the ports of Colonies of Great Britain, instead of being proceeded against as it ought to have been in any and every port within British jurisdiction in whicji it might have been found ; And whereas the Government .of Her Britannic Majesty can not justify itself for a faUure in due diligence on the plea of the insufficiency of the legal means of action which it possessed ; , Four of the Arbitrators, for the reasons above assigned, and the fifth for rea sons separately assigned by him, are of opinion, . That Great Britain has in this case faUed, by omission, to fulfill the duties 278 APPENDIX^ prescribed in the first and the third of the Rules estabUshed by the Sixth Arti cle of the Treaty of Washington. And whereas, with respect to the vessel called the Florida, it results from aU the facts relative to the construction of the Oreto in the port of Liverpool and to its issue therefrom, which facts failed to induce the Authorities in Great Britain to resort to measures adequate to prevent the violation of the neutralify of that nation, notwithstanding the warnings and repeated representations of the ¦Agents of the United States, that Her Majesty's Government has failed to use due diligence to fulfiU the duties of neutrality ; • And whereas it likewise results from aU the facts relative to the stay of the Oreto at Nassau, to her issue from that port, to her enlistment of men, to her suppUes, and to her armament with the co-operation of the British vessel Prince Alfred at Green Cay, that there was negligence on the part of the British Colo nial Authorities ; And whereas, notwithstanding the violation of the neutraUty of Great Britain committed by the Oreto, this same vessel, later known as fhe Confederate cruiser Florida, was nevertheless on several occasions freelyiadmitted into the ports of British Colonies ; And whereas the" judicial acquittal of the Oreto at Nassau can not reUeve Great Britain from the responsibiUty incurred by her under the principles of International Law ; nor, can the fact of the entry of the Florida into the Con federate port of Mobile, and of its stay there during four months, extinguish the responsibility previously to that time incurred by Great Britain : For these reasons. The Tribunal, by a majority of four voices to one, is of opinion, That Great Britain has in this case failed, by omission, to fulfiU the duties prescribed in the first, in the second, and in the third of the.Rules estabUshed by Article VI. of the Treaty of Washington. And whereas, with respect to the vessel caUed the Shenandoah, it results from aU the facts relative to the departure from London of the merchant vessel the Sea King, and to the transformation of that ship Inlo a Confederate cruiser under the name of the Shenandoah, near the island of Madeira, that the Gov ernment of Her Britannic Majesty is not chargeable with any faUure, down to that date, in the use of due dUigence to fulfiU the duties of neutraUty ; But whereas it results from aU the facts connected with the stay of the Shen andoah at Melbourne, and especially with thS augmentation which the British Government itself admits to have been clandestinely effected pf her force by the enlistment of men within that port, that there was negligence on the part of the Authorities at that place : For these reasons, The Tribunal is unanimously of opinion, That Great Britain has not failed, by any act or omission, to fulfiU any of the duties prescribed by the Rules of Article VI. in the Treaty of Washington or by the principles of International Law not inconsistent therewith, in respect THE DECISION AND AWARD. 279 L: iZt^l^r— ' ^-- - -- °^ '- -- - - Brtai'n wSr^ °'.""'" '" *"° ^¦°^'=^^' *« ^"^"-1 -^-l"- that Great fh Mof t ? ' f'' °™"".°'^' *° f"'fi" «1^« l-ties prescribed by the second and hud of the^Rul s aforesaid, m the case of this same vessel, from and after her en try into Hobson s Bay, and is therefore responsible for aU acts committed by that vessel after her departure from Melbom-ne on the 18th day of February 1865 And so far as relates to the vessels caUed ' The Tuscaloosa (Tender to the Alabama), The Clarence, The Tacony, and The Archer (Tenders to the Florida), The Tribunal is unanimously of opinion. That such Tenders or auxiliary vessels, being properly 'regarded as accesso ries, must necessarily foUow the lot of their Principals, and be submitted to the same decision which appUes to them respectively. And so far as relates to the vessel caUed the Retribution, The Tribunal, by a majority of three to two voices, is of opinion. That Great Britain has not failed, by any act or omission, to fulfiU any of the duties prescribed by the three Rules of Article VI. in the Treaty of Wash ington, or by the principles of International Law not inconsistent therewith. And so far as relates to the vessels caUed The Georgia, The Sumter, , The Nashville, The Tallahassee, and The Chickamauga, respectively. The Tribunal is unanimously of ppihion, That Great Britain has not failed, by any act or omission, to fulfiU any of the duties prescribed by the three Rules of Article VI. in the Treaty of Wash ington, or by the principles of International Law not inconsistent therewith. And so far as relates to the vessels caUed ' The Sallie, The Jefferson Davis, The Music, The Boston, and The V. H. Joy, respectively, The Tribunal is unanimously of opinion. That they ought to be excluded from consideration for want of evidence. And whereas, so far as relates to the particulars pf the indemnity claimed by the United States, thfe costs of pursuit of the Confederate cruisers are not, in the judgment of the Tribunal, properly distinguishable from the general ex penses of the war carried on by the United States, 280 APPENDIX. The Tribunal is therefore of opinion, by a majority of three to two voices. That there is no ground for awarding to the United States any sum by way of indemnity under this head. And whereas prospective earnings can not properly be made the subject of compensation, inasmuch as they depend in their nature upon future and uncer tain contingencies, The Tribunal is unanimously of opinion. That there is no ground for awarding to the United States any sum by way of indemnity under this head. And whereas, in order to arrive at an equitable compensation for the dam ages which have been sustained, it is necessary to set aside all double claims for the same losses, and aU claims for "gross freights " so far as they exceed "net freights;'' And whereas it is just and reasonable to allow interest at a reasonable rate ; And whereas, in accordance with the spirit and the letter of the Treaty pf Washingtpn, it is preferable to adopt the form of adjudication of a sum in gross, rather than to refer the subject of compensation for further discussion and de- Uberation to a Board of Assessors, as provided by Article X. of the said Treaty : The Tribunal, making use of the authority conferred upon it by Article VII. of the said Treaty, by a majority of four voices to one, awards to the United States the sum of fifteen millions five hundred thousand DoUars in gold as the indemnity to be paid by Great Britain to the United States for the satisfaction of aU the claims referred to the consideration of the Tribunal, conformably to the provisions contained in Article VII. of the aforesaid Treaty. And, in accordance with the terms of Article XL of the said Treaty, the Tri bunal declares that all the claims referred to in the Treaty as submitted to the Tribunal are hereby fully, perfectly, and finally settled. Furthermore, it declares that each and every one of the said claims, whether the same may or may not have been presented to the notice of, made, preferred, or laid before the Tribunal, shaU henceforth be considered and treated as finally settled, barred, and inadmissible. In Testimony whereof this present Decision and Award has been made in duplicate, and signed by the Arbitrators who have given their assent thereto, the whole being in exact conformity with the provisions of Article VII. of the said Treaty of Washington. Made and concluded at the Hotel de ViUe of Geneva, in Switzeriand, the 14th day of the month of September, in the year of our Lord one thousand eight hundred and seventy-two. (Signed) C. F. Adams. (Signed) Frederic Sclopis, (Signed) ST.ffiMprLi. (Signed) Vicomte d'lTAJUni.