[1871]
The year 1871 was marked by the conclusion of an important treaty
between England and the United States. Besides settling certain
questions which threatened the friendly relations of the two countries,
the treaty enunciated important principles of international law, and
afforded the world a shining instance of peaceful arbitration as a
substitute for the horrors of war.
Ever since 1863 the United States had been seeking satisfaction from
Great Britain for the depredations committed by the Alabama and other
Confederate cruisers sailing from English ports. Negotiations were
broken off in 1865 and again in 1868. The next year Reverdy Johnson,
American Minister to England, negotiated a treaty, but it was rejected
by the Senate. In January, 1871, the British Government proposed a
joint commission for the settlement of questions connected with the
Canadian fisheries. Mr. Fish, our Secretary of State, replied that the
settlement of the "Alabama Claims" would be "essential to the
restoration of cordial and amicable relations between the two
governments." England consented to submit this question also to the
commission, and on February 27th five high commissioners from each
country met at Washington. The British delegation included cabinet
officers, the minister to the United States, and an Oxford professor of
international law. The American commissioners were of equally high
station, the Secretary of State, an associate justice of the Supreme
Court, and our minister to England being of their number.
On May 8th the commission completed a treaty which was speedily ratified
by both governments. It provided for arbitration upon the "Alabama
Claims," upon other claims by citizens of either country for damages
during the Rebellion, upon the fisheries, and upon the northwest
boundary of the United States. Provisions were also made by it for the
common use of the lakes, rivers, and canals along the Canadian border,
and for the transit of merchandise free of duty, under certain
conditions, across either country to and from certain ports.
The fisheries part of the treaty is discussed in the next chapter. The
question of the northwest boundary was referred to the decision of the
German emperor, William I. The treaty of 1846 had left it doubtful
whether the boundary line through the channel between Vancouver Island
and the main-land should be so run as to include the island of San Juan,
with its group, in the United States or in Canada. The emperor's
decision, given in 1872, was in favor of the United States.
Three commissioners–one appointed by each government and a third
appointed jointly–met in Washington, September 26, 1871, to pass
judgment upon the war claims other than the "Alabama Claims." The
American claims of this class, amounting to less than $1,000,000, were
all rejected on the ground that the British Government was not proved
responsible for the damages incurred. British subjects put in claims for
$96,000,000. The commission allowed less than $2,000,000, which the
United States Government promptly paid into the British treasury.
But far the most important and interesting part of the treaty was the
provision for the settlement of the "Alabama Claims." England's
unfriendly attitude during the war and her subsequent refusal to submit
the "claims" to arbitration, had stirred up much hard feeling throughout
the United States. The graceful expression, in the preamble to the
treaty, of England's regret for the ravages of the cruisers was
therefore very gratifying. More material satisfaction was to follow. The
treaty provided that the claims should be submitted to a tribunal of
five persons–one appointed by each government and one each by the
Emperor of Brazil, the President of Switzerland, and the King of Italy.
The tribunal met at Geneva, Switzerland, December 15, 1871. Charles
Francis Adams, our minister to England during the war, was the United
States member, and Lord Chief Justice Cockburn the English. Baron
Itajuba, the Brazilian minister plenipotentiary to France, Count
Sclopis, an Italian minister of State, and M. Jaques Staempfli, of
Switzerland, comprised the rest of the tribunal. Each side was
represented by counsel, Caleb Cushing, William M. Evarts, and Morrison
R. Waite appearing for the United States. An agent presented the printed
case of each government.
[1872]
The American claims included direct and indirect losses–direct, by the
destruction of vessels with their cargoes and by national expenditure in
chasing the Confederate cruisers; indirect, by the loss of a large part
of the United States ocean carrying trade, by increased marine insurance
rates, and by the prolongation of the war with proportionally increased
expense. Great Britain vehemently objected to the indirect claims coming
before the tribunal, and at one time seemed about to withdraw. Upon
reassembling in June, 1872, the tribunal decided that the indirect
claims were not admissible, and the case went forward. Counsel having
presented their respective arguments, the tribunal took up the case of
each cruiser separately. During the consideration of damages it sat with
closed doors, only the arbitrators being present. On September 14th,
after thirty-two conferences, the tribunal gave its decision.
The Geneva case is of two-fold interest, first, for its decision of the
facts involved, and the consequent award; second, for its enunciation of
important principles of international law.
The Treaty of Washington laid down three rules for the guidance of the
tribunal. They are such important contributions to international law
that they must be quoted in full.
"A neutral government is bound,
"First: To use due diligence to prevent the fitting out, arming or
equipping, within 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 jurisdiction 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 suffer either belligerent to make use of its
ports or waters as the base of naval operations against the other, or
for the purpose of the renewal or augmentation of military supplies or
arms, or the recruitment of men.
"Thirdly: To exercise due diligence in its own ports and waters, and as
to all persons within its jurisdiction, to prevent any violation of the
foregoing obligations and duties."
Great Britain denied, in the text of the treaty, that these rules were a
true statement of the principles of international law in force during
the Rebellion, but consented that the "Alabama Claims" should be decided
in accordance with them. Both countries also agreed to abide by them in
future and to invite other maritime powers to do the same.
Questions being raised by the counsel as to the interpretation of
certain terms and the scope of certain provisions in the three rules,
the tribunal found it necessary to make the following preliminary
decisions:
1. The meaning of "due diligence." The tribunal took the ground that
what constitutes "due diligence" varies with the circumstances of the
case. The greater the probable damage to either belligerent, the greater
must be the care taken by the neutral government to prevent the escape
of cruisers from its ports.
2. Should a neutral detain an escaped cruiser when it re-enters the
neutral's jurisdiction, the cruiser having in the meantime been
regularly commissioned by its government? The arbitrators decided that
the neutral had a right to detain such a cruiser, in spite of its
commission, but was under no positive obligation to do so.
3. Does a neutral's responsibility end with the enforcement of its local
laws to prevent the escape of cruisers, even if those laws are
inadequate? Decision was given that the case must be determined by
international law and not by national legislation. If a country's
regulations for carrying out its acknowledged international duties are
ineffective, they ought to be changed.
These decisions in international law, coming from so exalted a source,
were of world-wide significance. The verdict on the facts in the case
had, however, more immediate interest for the two contestants.
The American case claimed damages for losses inflicted by fourteen
cruisers and four tenders. The award allowed for only the Alabama with
her tender, the Florida with her three tenders, and the Shenandoah
during a part of her career. With regard to the Alabama the culpability
of the British Government was so clearly shown that even the English
arbitrator voted in favor of the American claim. The Florida was
permitted to escape from Liverpool although Mr. Adams, the United States
minister, repeatedly called the attention of the authorities to her
notorious warlike character. The vessel was, furthermore, libelled at
Nassau, a British colonial port, but the British officials allowed her
to take in supplies and put to sea. The Shenandoah set sail from
Liverpool with the connivance of the Government, received her armament
at the Madeira Islands, and after a destructive career was welcomed at
the British port of Melbourne, repaired in a government slip, and
furnished with supplies and recruits. The award held Great Britain
responsible only for her career after leaving Melbourne.
The American case further claimed damages for national expense in
chasing the cruisers, and for the prospective earnings of the lost
merchantmen, but these claims, along with those explicitly denounced as
indirect, were rejected.
The tribunal awarded $15,500,000 damages in gold for the vessels and
cargoes destroyed by the three cruisers and their tenders. Of this sum,
about $2,000,000 was interest at six per cent. The only dissenting voice
was that of the British member, who submitted a long and able, but
somewhat spiteful, minority report.
The award naturally gave great satisfaction in the United States. The
money compensation was in itself a source of considerable gratulation;
but the fact that stiff-backed England had by a clearly impartial
tribunal of the highest character been declared in the wrong was not the
least pleasurable side of the result. American citizens should never
forget the services, in this delicate and difficult matter, of Mr.
Adams. By his great knowledge of law, his careful gathering of evidence,
and his brave, sturdy and incessant, though apparently useless,
remonstrances with the British authorities while the cruisers were
building and their depredations going on, he established a case which
could not be gainsaid. Hardly had he opened his portfolio at Geneva when
the learned arbitrators saw that his suit must be allowed.
England promptly handed over to the United States the price of her
sympathy with rebellion and slavery. The course of Congress in dealing
with the award was not very creditable. For four years the money lay in
the treasury vaults, piling up interest at five per cent. until it
amounted to $20,000,000. A Court of Alabama Claims was then convened,
where private claimants might press their suits. Insurance companies
which could show that their losses on vessels destroyed by the cruisers
exceeded the premiums received, were entitled to be paid the difference,
with interest at four per cent.