it proper, award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it. It is sufficient for present purposes to state that the tribunal met at Geneva in 1872, that it decided that in some respects the conduct of Great Britain was in conflict with the three rules of Washington or the principles of international law not inconsistent therewith and applicable to the case, and that "The tribunal," to quote the language of the award, "making use of the authority conferred upon it by Article VII1 of the said treaty, by a majority of four voices to one awards to the United States a sum of $15,500,000 in gold as the indemnity to be paid by Great Britain to the United States, for the satisfaction of all the claims referred to the consideration of the tribunal, conformably to the provisions contained in Article VII of the aforesaid treaty." Great Britain paid and the United States accepted this award in full satisfaction of the claims submitted to arbitration and, assuming liability to satisfy the individual claimants out of this fund, created a so-called Alabama Court of Claims by an Act of Congress of June 23, 1874, to which the claimants were to present their claims, with the necessary proofs, in order that they might be judicially passed upon and determined, and the amounts found justly due them paid out of the fund. An Alabama Court of Claims was created by Act of Congress of June 5, 1882, to consider two classes of the so-called Alabama claims, and in Section 5 of the act it is stated: That the first class shall be for claims directly resulting from damage done on the high seas by Confederate cruisers during the late rebellion, including vessels and cargoes attacked on the high seas, although the loss or damage occurred within four miles of the shore It will be observed that each of these tribunals was of limited jurisdiction, and that the second Court of Alabama Claims was limited in its jurisdiction to "claims directly resulting from damage done upon the high seas." It was necessary, therefore, for the judges composing it to determine the sense in which the phrase "high seas' was used. The question, therefore, met the judges of the Court upon the threshold and they were forced to decide it before assuming jurisdiction of any claim; for if the damage did not occur upon the high seas, the judgment or award of the Court would be null and void and without effect. 1 Malloy, Treaties, etc., between the United States and Foreign Powers, p. 703. 2 22 Statutes at Large, p. 98. The case to which reference has been made is that of Rich v. The United States, decided in 1884 by the Second Court of Alabama Claims and is of importance as it discusses in principle, unembarrassed by legislative act or judicial decision, the meaning to be ascribed to the term "high seas" standing alone and without qualifying expression. To the English-speaking peoples it has the additional advantage of having been considered by counsel for government and counsel for claimants as a case of first impression, and it was argued and decided as such. Because of these two facts, and because also of its importance to the subject at hand, the opinion in this case, which is not so well known as it deserves to be, will be laid under requisition. The facts of the case were simple and are thus stated by Judge Harlan, who delivered the opinion of the Court: The claimants in this case represent that they were owners of one-fourth part of the American ship John H. Jarvis, and its cargo, captured May 16, 1861, on the high seas, near the mouth of the Mississippi river, by the Confederate cruiser Music, and pray judgment for the value of their said interest in the property so lost to them.1 On the question of the meaning to be given to the phrase "high seas" contained in the statute, and the reasons which led the Court to its conclusion as to the meaning of the phrase, Judge Harlan said, on behalf of the Court: The decision of the question thus raised must depend on the meaning which Congress intended should be given by the Court to the phrase or compound word "high-seas," as used in this statute." After stating that in admiralty law the statutes interpret the high seas as meaning "waters of the ocean from shore to shore to lowwater mark," the learned judge thus continued his examination: On account of the imperfection of human language the meaning of words must be construed by the subject-matter to which they apply. "High seas" is not an exception. As used in literature, and by writers on elementary law, it does not always mean the waters of the ocean from shore to shore [as in the case of admiralty proceedings]. It is a settled rule of interpretation, also, that words found 1 Opinions of the Court of Commissioners of Alabama Claims, November, 1884. Compiled by J. F. Manning. (Boston, Smith and Porter, 1884), p. 48. 2 Ibid., p. 50. in a statute should retain their usual meaning, if that is practicable, within the meaning of the act. It may therefore be proper to endeavor to ascertain the usual literal meaning of this term, composed as it is of two primary words-the descriptive adjective "high," and the substantive "seas. "Sea," as originally used, meant a body of water smaller than the ocean, usually connected with the ocean, but sometimes a body of water entirely surrounded by land. But its meaning has gradually changed, as used by the English-speaking people, until, it has come to mean the ocean more frequently than a smaller inland body of water. And, in fact, the two words, "ocean" and "sea," or "seas," are used interchangeably as synonymous. "Sea," being the more modest word, is probably more frequently used in descriptive and narrative language, and "ocean preferred when the heroic style of expression is adopted. Hence, "sea-shore" now usually means the ocean shore; "at sea" out on the ocean; 'seaman," one who navigates the ocean as well as interior waters; so that "sea" or "seas," as now generally used, means the open waters of the ocean from shore to shore; therefore the term "high-seas" must mean, literally, the waters of the ocean in some different sense, indicated by the prefix "high," which was probably adopted as descriptive of the apparent elevation of its surface towards the horizon when looked at from the shore. And the term "high-seas" is so used in descriptive geography and narrative as meaning the sea at a distance from the shore, and interchangeable with the term "deep seas."1 After appealing to the lexicographer as to the meaning of the word "high" and finding it to mean "elevated from any starting point for measurement, as a line or surface," and coming to the conclusion that the "high seas," therefore, meant the sea from beyond a given line, the Court made the following application of the definition: For the purpose of defining the territorial jurisdiction of a nation, the starting point is one marine league, or about four statute English miles from the shore. Hence the words "high seas, " when used with such reference, must mean the waters of the ocean exterior to such boundary; and the most casual examination of standard works on international law will furnish abundant proof that it is constantly so used in defining the rights and duties of neutrals and belligerents on the "high-seas" in contradistinction to their rights, duties, and privileges within a marine league of a neutral shore.2 The Court next appealed to the international lawyer, choosing for this purpose Chancellor Kent, and wisely, because he was not only a 'Manning, Opinions, Court of Commissioners of Alabama Claims, November, 1884, pp. 50-51. 2 Ibid., p. 51. lawyer by profession and one of the glories of the American bench, but also the author of a brief survey of the law of Nations which competent authorities have been pleased to consider as the best in the language.1 To the appeal Kent responded that "high seas" meant "the ocean without the boundary of any country; also the uninclosed waters of the ocean which are without the limits of the low-water mark." Armed with the authority of the lexicographer and of the international lawyer, the Court proceeded. And this double meaning appears to be in harmony with the more modern use of the term; that is to say, it means either the waters of the ocean from shore to shore, or the waters of the ocean bounded by a line drawn one marine league from the shore, that being the territorial jurisdictional boundary of a nation, depending on the subject-matter to which it is applied. In defining the jurisdiction of admiralty courts "high-seas" means the waters of the ocean from shore to shore at low-water mark. In defining the rights and duties and privileges of neutrals and belligerents "high-seas" means the ocean exterior to the league limit from the shore.2 After having reached this conclusion, based upon the nature of the thing and the views of Nations as drawn from their practice, the learned judge asked in what sense the Congress used the term "in the statute" and correctly answered the question just put by stating that that must be determined from a consideration of the language used and the subject-matter treated. The Court first considered the subject which the legislature had in mind and on this point the judge said: The subject referred to is the destruction of American merchant ships and cargoes on the high-seas by Confederate cruisers. Thus Sir William Vernon Harcourt said in the Letters which that distinguished lawyer and statesman contributed under the pseudonym Historicus to the London Times: "The lectures of Chancellor Kent at the commencement of the Commentaries are a perfect specimen of judicial exposition. The Elements of International Law,' by Mr. Wheaton, slight as they are, nevertheless present, on the whole, next to that of Kent, the best general attempt which has yet been made at a discussion of these questions." And again: "Permit me, while I am warning your readers against false lights, to refer them to a guide who will never lead them astray-to the greatest jurist whom this age has produced-I mean the American Chancellor Kent. Of his writings it may safely be said that they are never wrong." (Letters of Historicus on Some Questions of International Law; London; Macmillan, 1863, p. 129.) 2 Manning, Opinions, Court of Commissioners of Alabama Claims, November, 1884, pp. 51-52. The so-called Confederate States had been recognized by the lead- Inasmuch as this line of approach was not decisive, the Court looked to the facts of the case and attendant circumstances. 1 Thus: But the Court may derive some aid in this respect from the consideration of other facts and circumstances relating to the subject-matter. Within the marine league from a neutral shore the property of citizens of the United States was under the protection of the neutral government, and not legally subject to capture by the belligerent cruisers, and within the marine league of the shore of the United States and on its interior waters it was under the protection of the guns, shore batteries, harbor defenses, and land forces of the United States, and consequently less liable to capture by belligerent ships of the public enemy; and the entrance of merchant ships for the purpose of trade into the harbors and on the interior waters of the Confederate States had been prohibited by the United States before the sailing of any Confederate cruiser. Hence the presence of a merchant ship of the United States within the marine league of the Confederate coast was presumably illegal, being in defiance of the laws of its sovereign. From this condition of facts the conclusion may safely be drawn by the Court that Congress probably intended to distinguish between the class of sufferers whose property was destroyed within a marine league and also on the interior waters of the United States and of the Confederate States, to exclude them from the beneficial provisions of this statute, and to provide for them, if deemed advisable, by future legislation." Manning, Opinions, Court of Commissioners of Alabama Claims, November, 1884, p. 53. 2 Ibid., pp. 53-54. |