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*CASE OF THE UNITED STATES.

PART I.

INTRODUCTION.

1

on the Meeting of

of the Joint High Commissioners at Washing

ton.

In the spring of the present year (1871) five Commissioners part of Great Britain and five Commissioners on the part of the United States of America met at Washington in a body, which, when organized, was known as the Joint High Commission, in order to discuss, and, if possible, to arrange for, the adjustment of several causes of difference between the two Powers. Among the subjects which were brought before that body by the United States were "the differences which arose during the rebellion in the United States, and which have existed since then, growing out of the acts committed by the several vessels, which have given rise to the claims generically known as the Alabama Claims."1

The sessions of the Joint High Commission were many in number, and were largely devoted to the consideration of the differences re

ferred to in Mr. Fish's letter to Sir Edward Thornton, from [10] *which the above-cited quotation is made. The High Commis

sioners, in the protocol of their thirty-sixth conference, caused to be recorded a statement of their negotiations on this subject, in the following language:

the conferences as to the

"At the conference held on the 8th of March the Ameri- Protocol of can Commissioners stated that the people and Government Alabama Claims. of the United States felt that they had sustained a great wrong, and that great injuries and losses were inflicted upon their commerce and their material interests by the course and conduct of Great Britain during the recent rebellion in the United States; that what had occurred in Great Britain and her colonies during that period had given rise to feelings in the United States which the people of the United States did not desire to cherish toward Great Britain; that the history of the Alabama and other cruisers, which had been fitted out, or armed, or equipped, or which had received augmentation of force in Great Britain or in her colonies, and of the operations of those vessels, showed extensive direct losses in the capture and destruction of a large number of vessels, with their cargoes, and in the heavy national expenditures in the pursuit of the cruisers, and in direct injury in the transfer of a large part of the American commercial marine to the British flag, in the enhanced

payments of insurance, in the prolongation of the war, and in [11] *the addition of a large sum to the cost of the war and the sup

pression of the rebellion; and also showed that Great Britain, by reason of failure in the proper observance of her duties as a neutral, had become justly liable for the acts of those cruisers and of their tenders; that the claims for the loss and destruction of private property which bad thus far been presented amounted to about fourteen millions 1 Mr. Fish to Sir Edward Thornton, January 30, 1871, Vol. VI, page 16.

of dollars, without interest, which amount was liable to be greatly increased by claims which had not been presented; that the cost to which the Government had been put in the pursuit of cruisers could easily be ascertained by certificates of Government accounting officers that, in the hope of an amicable settlement, no estimate was made of the indirect losses, without prejudice, however, to the right to indemnification on their account in the event of no such settlement being made.

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

* "The British Commissioners replied that Her Majesty's Gov- [12] ernment could not admit that Great Britain had failed to discharge toward the United States the duties imposed on her by the rules of International Law, or that she was justly liable to make good to the United States the losses occasioned by the acts of the cruisers to which the American Commissioners had referred. They reminded the American Commissioners that several vessels, suspected of being designed to cruise against the United States, including two iron-clads, had been arrested or detained by the British Government, and that that Government had, in some instances, not confined itself to the discharge of international obligations, however widely construed, as, for instance, when it acquired, at a great cost to the country, the control of the Anglo-Chinese Flotilla, which, it was apprehended, might be used against the United States.

"They added that, although Great Britain had, from the beginning, disavowed any responsibility for the acts of the Alabama and the other vessels, she had already shown her willingness, for the sake of the maintenance of friendly relations with the United States, to adopt the principle of arbitration, provided that a fitting Arbitrator could be found, and that an agreement could be come to as to the points to which arbitration should apply. *They would, therefore, ab- [13] stain from replying in detail to the statement of the American Commissioners, in the hope that the necessity for entering upon a lengthened controversy might be obviated by the adoption of so fair a mode of settlement as that which they were instructed to propose; and they had now to repeat, on behalf of their Government, the offer of arbitration.

"The American Commissioners expressed their regret at this decision of the British Commissioners, and said further that they could not consent to submit the question of the liability of Her Majesty's Government to arbitration unless the principles which should govern the Arbitrator in the consideration of the facts could be first agreed upon. "The British Commissioners replied that they had no authority to agree to a submission of these claims to an Arbitrator with instructions as to the principles which should govern him in the consideration of them. They said that they should be willing to consider what principles should be adopted for observance in future; but that they were of opinion that the best mode of conducting an arbitration was to submit the facts to the Arbitrator, and leave him free to decide upon them after hearing such arguments as might be necessary.

*

"The American Commissioners replied that they were willing [14]

to consider what principles should be laid down for observance in similar cases in future, with the understanding that any principles that should be agreed upon should be held to be applicable to the facts in respect to the Alabama Claims.

"The British Commissioners replied that they could not admit that there had been any violation of existing principles of International Law, and that their instructions did not authorize them to accede to a proposal for laying down rules for the guidance of the Arbitrator, but that they would make known to their Government the views of the American Commissioners on the subject.

"At the respective conferences on March 9, March 10, March 13, March 14, the Joint High Commission considered the form of the declaration of principles or rules which the American Commissioners desired to see adopted for the instruction of the Arbitrator and laid down for observance by the two Governments in future.

"At the close of the conference of the 14th of March, the British Commissioners reserved several questions for the consideration of their Government.

"At the conference on the 5th of April, the British Commissioners stated that they were instructed by Her Majesty's Government [15] to declare *that Her Majesty's Government could not assent to

the proposed rules as a statement of principles of International Law which were in force at the time when the Alabama Claims arose, but that Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agreed that, in deciding the questions between the two countries arising out of those claims, the Arbitrator should assume that Her Majesty's Government had undertaken to act upon the principles set forth in the rules which the American Commissioners had proposed, viz:

"That 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 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 [16] other, or for *the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

"Thirdly, to exercise due diligence in its own ports or waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.'

"It being a condition of this undertaking that these obligations should in future be held to be binding internationally between the two countries.

"It was also settled that, in deciding the matters submitted to him, the Arbitrator should be governed by the foregoing rules, which had been agreed upon as rules to be taken as applicable to the case, and by such principles of International Law, not inconsistent therewith, as the Arbitrator should determine to have been applicable to the case.

"The Joint High Commission then proceeded to consider the form of submission and the manner of constituting a Tribunal of Arbitration. "At the conferences on the 6th, 8th, 9th, 10th, and 12th of April the

Joint High Commission considered and discussed the form of submission, the manner of the award, and the mode of selecting the Arbitrators.

"The American Commissioners, referring to the hope which they had expressed on the 8th of March, inquired whether the [17] British Commissioners were prepared to place upon record an expression of regret by Her Majesty's Government for the depredations committed by the vessels whose acts were now under discussion; and the British Commissioners replied that they were authorized to express, in a friendly spirit, the regret felt by Her Majesty's Government for the escape, under whatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by those vessels.

"The American Commissioners accepted this expression of regret as very satisfactory to them and as a token of kindness, and said that they felt sure it would be so received by the Government and people of the United States.

"In the conference on the 13th of April the Treaty, Articles I to XI, were agreed to."

The Treaty

The Treaty referred to in this statement was signed at Washington of on the 8th day of May, 1871, and the ratifications thereof Washington. were exchanged at London on the 17th day of the following June. The articles which relate to this subject are the following:

"ARTICLE 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;'

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“And whereas Her Britannic Majesty has authorized Her High Commissioners and Plenipotentiaries to express, in a friendly spirit, the regret felt by Her Majesty's Government for the escape, under whatever circumstances, of the Alabama 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 Contracting Parties agree that all the said claims, growing out of acts committed by the aforesaid vessels, and generically known as the 'Alabama Claims,' shall be referred to a Tribunal of Arbitration, to be composed of five Arbitrators, to be appointed in the following 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 Presi dent 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 [19] 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 forth with 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 Emperor 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 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 persons, as the case may be, to act as such Arbitrator or Arbitrators.

"ARTICLE II.

"The Arbitrators shall meet at Geneva, in Switzerland, at the 20] earliest convenient 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, respectively. 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 III.

"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.

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"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, correspondence, 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 becomes necessary, in conséquence of the distance of the place from which the evidence 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 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 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 reasonable 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