CHAPTER XIV. THE GENEVA ARBITRATION. Situation at Close of At no time since the year 1814 had the re lations between the United States and Great Britain worn so menacing an aspect as that which they assumed after the close of the civil war in the United States. At various times during the intervening period of half a century controversies had arisen and had been the occasion of sharp contention, but they did not have their origin in a deep and pent-up feeling of national injury such as that which the conviction that the British Government had failed to perform its neutral duties during the civil war produced in the mass of the people of the United States. Nor did the claims growing out of the civil war constitute the only subject of dispute between the two governments. The controversy as to the San Juan water boundary, which was in train of settlement. before the war began, was now revived. Moreover, on the 17th of March 1865, before the war had yet been concluded, notice was given to the British Government, pursuant to a joint resolution of Congress, of the intention of the United States to consider the treaty of June 5, 1854, in relation to reciprocity and the fisheries, as terminated, in accordance with its provisions, at the expiration of twelve months from the date of the notification. The termination of this treaty brought the two governments face to face with old controversies, which had themselves at times seemed to threaten hostilities; and, as if further to complicate the situation, there came the outbreak of Fenianism, dragging with it the vexed question of expatriation, which had formed a subject of contention in the disputes that led up to the war of 1812. But of all the subjects in controversy the most difficult was that which related to Great Britain's conduct as a neutral, a subject that embraced not only 1 1 Dip. Cor. 1868, part 1, pp. 93, 259; 15 Stats. at L. 566. the question of the rightfulness of her recognition of the Confederate States as a belligerent, but also the question of her liability for the depredations on American commerce, which gave rise to the claims generically known as the Alabama claims. tion of Arbitration. During the existence of the civil war the Earl Russell's Rejec- United States had the good fortune to be represented at London by a minister who, besides inheriting the name, possessed much of the ability and more than the tact and self-control of our first diplomatic representative at the Court of St. James. From the moment of his assumption of his office, Charles Francis Adams had, with ability and persistent firmness, sought to impress upon the British Government the views held by the United States as to that government's failure to perform its neutral duties. In a note to Earl Russell of October 23, 1863, Mr. Adams, referring to the differences then developed, said: “I am directed to say there is no fair and equitable form of conventional arbitrament or reference to which they (the United States) will not be will ing to submit.”1 Almost two years later, after the close of the the war, Earl Russell, when replying to a statement by Mr. Adams of the grievances of the United States, recalled this remark and said: "It appears to Her Majesty's Government that there are but two questions by which the claim of compensation could be tested; the one is, Have the British Government acted with due diligence, or, in other words, in good faith and honesty, in the maintenance of the neutrality they proclaimed? The other is, Have the law officers of the Crown properly understood the foreign enlistment act, when they declined, in June 1862 to advise the detention and seizure of the Alabama, and on other occasions when they were asked to detain other ships, building or fitting in British ports? "It appears to Her Majesty's Government that neither of these questions could be put to a foreign government with any regard to the dignity and character of the British Crown and the British nation. Her Majesty's Government are the sole guardians of their own honor. They can not admit that they have acted with bad faith in maintaining the neutrality they professed. The law officers of the Crown must be held to be better interpreters of a British statute than any foreign government can be presumed to be. Her Majesty's Government must therefore decline either to make reparation and compen sation for the captures made by the Alabama, or to refer the 1 Dip. Cor. 1865, part 1, p 565. question to any foreign state. Her Majesty's Government conceive that if they were to act otherwise they would endanger the position of neutrals in all future wars. "Her Majesty's Government, however, are ready to consent to the appointment of a commission, to which shall be referred all claims arising during the late civil war, which the two powers shall agree to refer to the commission."1 These declarations of Earl Russell led Mr. Seward not only to decline his proposition for the creation of a joint commission, but also to say that whatever the United States had thought or might still think as to "umpirage between the two powers," no such proposition as that made in 1863 would thenceforward "be insisted upon or submitted to by this government." In a subsequent instruction to Mr. Adams, marked "confidential," Mr. Seward said that there was not a member of the government, nor, so far as he knew, any citizen of the United States, who expected that the country would in any case waive its demands upon the British Government for the redress of wrongs committed in violation of international law.3 Earl Russell's absolute and abrupt refusal to Feeling in England. discuss the question of liability for the Ala. bama claims was felt in England to have been a mistake. It was perceived that the subject was one that involved something more than the construction of British statutes and the question of indemnities-that it involved substantial questions of law and practical questions of international conduct which Her Majesty's Government might consider without abating anything of "the dignity and character" of the Crown, and without ceasing to be "the sole guardians of their own honor." In the summer of 1866 the House of Representatives of the United States unanimously passed a bill to repeal the inhibitions in the neutrality laws against the fitting out of ships for belligerents. The avowed object of this measure was to gauge the future neutrality of the United States by the course of conduct which resulted in the issuance of the Alabama and other Confederate cruisers from British 1 Dip. Cor. 1865, part 1, p. 545. 2 Mr. Seward to Mr. Adams, September 20, 1865, Dip. Cor. 1865, part 1, p. 565; same to same, November 4, 1865, id. 630; see also Dip. Cor. 1865, part 1, p. 613, and Dip. Cor. 1866, part 1, pp. 1–28. 3 Mr. Seward to Mr. Adams, February 14, 1866, Dip. Cor. 1866, part 1, p. 66. 4 Mr. Adams to Mr. Seward, February 15, 1866, Dip. Cor. 1866, part 1, p. 67. 5627-32 ports to prey on American commerce. The ultimate consequences of such a form of retaliation it was impossible to esti mate; but it did not require much reflection to show that they might be most disastrous. As time wore on these obvious considerations of interest, as well as the sincere desire felt by many persons in England for more cordial relations with the United States, began to find public expression. Late in August 1866 a letter, probably written by Mr. Olyphant, a member of Parliament, who had lately been in the United States, appeared in the London Times, in which the writer, referring to the action of the House of Representatives and to the refusal of Earl Russell to arbitrate the Alabama claims, expressed the hope that it was not yet too late to retrieve that statesman's errors.3 At this time Earl Russell was no longer Official Expression. foreign secretary, and his successor, Lord Stanley, was understood to be favorable to the amicable settlement of the pending differences. By November 1866 the question of reopening the Alabama claims had not only become a topic of general discussion in the English press, but it was announced that the government contemplated the appointment of a royal commission to inquire generally into the operation of the British neutrality laws. Indeed, Lord Derby, the prime minister, at the inauguration of the lord mayor of London, at Guildhall, on the 10th of that month, intimated that a proposition for the arrangement of the differences touching the Alabama claims would be favorably entertained, and this intimation was followed by leading articles in the Times, in which it was suggested that Earl Russell's rejection of Mr. Adams's demands proceeded on a "somewhat narrow and onesided view of the question at issue," which would in the end make neutrals the sole judges of their own obligations, and that the claims would not be forgotten by the American people till they had been "submitted to some impartial adjudication." 1 Dip. Cor. 1866, part 1, pp. 156-166. 8 2 Bemis's American Neutrality: Its Honorable Past, Its Expedient Future (Boston, 1866), ably expressed the objections to the repeal of the neutrality laws, and argued for their consolidation and improvement. 3 Mr. Adams to Mr. Seward, August 23, 1866, Dip. Cor. 1866, part 1, p. 174. Dip. Cor. 1866, part 1, pp. 147, 166, 177-203. 5 Id. 212. 6 Id. 210. 7 Dip. Cor. 1867, part 1, pp. 1-3. 8 Id. 43; London Times, January 9, 1867. Lord Stanley's Proposal. On the 7th of January 1867 Sir Frederick Bruce, the British minister at Washington, communicated to Mr. Seward a copy of an instruction of the 30th of the preceding November, in which Lord Stanley said that while it was impossible for Her Majesty's present advisers to abandoned the ground taken by former governments so far as to admit liability for the Alabama claims, they would not be disinclined to adopt the principle of arbitration, provided that a fitting arbiter could be found, and that an agreement could be reached as to the points to which the arbitration should apply. But with regard to the alleged premature recognition of the Confederates States as a belligerent power, it was, be said, clear that no reference to arbitration was possible, since the act complained of was one as to which every state must be held to be the sole judge of its duty. At the same time Lord Stanley called attention to the numerous British claims growing out of the war.' While Mr. Seward did not object to the Mr. Seward's Reply, remedy of arbitration, he declined to accept it with the limitations which Lord Stanley proposed. He insisted that the whole controversy should be submitted just as it was found in the correspondence between the two governments, without imposing any conditions or restrictions on the arbitrator, and without waiving any principle or argument on either side." The United States could not, said Mr. Seward, waive before the arbitrators the position they had constantly maintained from the beginning, "that the Queen's proclamation of 1861 which accorded belligerent rights to insurgents against the authority of the United States, was not justified on any grounds, either of necessity or moral right, and therefore was an act of wrongful intervention, a departure from the obligation of existing treaties, and without the sanction of the law of nations." 3 For this reason Mr. Seward declined Lord Mr. Seward's Position Stanley's proposition for a limited reference. on the Belligerency But it should be observed that, while he refused to waive the question as to the general course of conduct of the British Government during the war, Question. 1 Dip. Cor. 1867, part 1, pp. 183, 188. 2 Mr. Seward to Mr. Adams, January 12, 1867, Dip. Cor. 1867, part 1, pp. 45-45. 3 Same to same, November 29, 1867 (id. p. 179). |