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

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

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

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

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

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

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

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

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

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

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

Construction of

After careful consideration of these discus

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

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

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

Construction of Treaty in England.

In the debate on the treaty in the House of Lords on June 12, 1871, Earl Granville read from the protocol of March 8 the statement of Mr. Fish that "the history of the Alabama and other cruisers showed extensive direct losses and indirect injury in the transfer of a large part of the American commercial marine to the British flag, in the enhanced payments of insurance, in the prolongation of the war, and in the addition of a large sum to the cost of the war and the suppression of the rebellion," and said: "These were the pretensions which might have been carried out under the former arbitration, but they entirely disappear under the limited reference, which includes merely complaints arising out of the escape of the Alabama."2

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

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

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

2 Hansard, 3d series, CCVI. 1852.

3 Id. 1864.

face of the earth is likely to derive so much benefit as England herself."

Lord Cairns said he concurred with Earl Granville that under the arbitration proposed by the late foreign secretary and Lord Clarendon it was quite possible for the United States to have made extravagant claims. "But," added Lord Cairns, "what is there in the present treaty to prevent the same thing? I can not find one single word in these protocols or in these rules which would prevent such claims being put in and taking their chance."!

In a debate in the House of Commons on August 4, 1871, Sir Stafford Northcote said that the claims arising out of the acts of the Alabama were most clearly defined in the treaty. The Johnson-Clarendon convention, in his opinion, made it possible to raise a number of questions which England was not willing to submit to arbitration. "They might," he said, "have raised the question with regard to the recognition of belligerency, with regard to constructive damages arising out of this recognition of belligerency, and a number of other matters which this country could not admit. But if the honorable gentlemen will look to the terms of the treaty actually contracted, they would see that the commissioners followed the subjects very closely by making a reference only to a list growing out of the acts of particular vessels, and in so doing shut out a large class of claims which the Americans had previously insisted upon, but which the commissioners had prevented from being raised before the arbitrators."2

American Construction.

In the discussions in England which followed Arguments Against the Queen's speech of February 6, 1872, great stress was laid on two points. An appeal was made to the preamble of the treaty to show that the "amicable settlement" spoken of by Mr. Fish in his statement of March 8 referred as well to any settlement that might be made through the medium of arbitration as to an agreement that might have been arrived at by the joint com

In an extract in the London Times, March 26, 1872 (p. 10, column 5), from a conversation published in the New York Herald, Mr. Seward is reported to have said: “My position under the former (the JohnsonClarendon) treaty was that everybody who had suffered and is entitled to any damages has a right to present his claims, whether they be consequential or direct damages."

1 Hansard, 3d series, CCVIII. 900.

mission and embodied in the treaty. This was the first point. The second was the fact that the Government of the United States had made no protest against the statements in Parliament as to the true interpretation of the treaty, though, as was often pointed out, General Schenck was present at the debate in the House of Lords on the 12th of June.1

As to the expression "amicable settlement," the proper interpretation of it seems to be that it referred, as Mr. Fish used it, to a direct settlement by the commissioners. Mr. Fish said 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." In their reply to this statement, the British commissioners disavowed any responsibility on the part of Great Britain for the acts of the Alabama and the other vessels, and made an offer of arbitration. The American commissioners "expressed their regret at this decision of the British commissioners." If the "amicable settlement" desired by Mr. Fish included arbitration, there certainly was little meaning in the American commissioners' expression of regret when the British commissioners proposed that mode of settlement. It seems that Mr. Fish used the term to describe a direct settlement, at least of the question of liability, as distinguished from contentious litigation before arbitrators.

To the failure of the United States to protest against what was said in Parliament as to the true interpretation of the treaty little importance can be attached. The opinion expressed by Lord Granville and the Marquis of Ripon in the House of Lords was directly opposed by Lord Cairns, than whom there was no higher authority in matters of legal construction. And if questions arose as to the construction of the treaty, was not the tribunal of arbitration the proper authority to decide them? Was not the tribunal competent to determine whether claims were or were not within its jurisdiction? It has been seen that this question arose under the seventh article of the Jay Treaty, and that it was then answered in the affirmative, though, in the controversy which arose concerning the sixth article of that treaty, it appears that the United States did not admit that the power of arbitrators to derermine their own jurisdiction was unlimited. It is highly probable, and indeed some of the discussions

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Papers Relating to the Treaty of Washington, II. 427.

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