"3. Reciprocal trade between the United States and the Dominion of Canada. "4. Northwest water boundary and the island of San Juan. "5. The claims of the United States against Great Britain on account of acts committed by rebel cruisers. "Claims of British subjects against the United States for losses and injuries arising out of acts committed during the civil war in the United States." The discussion and treatment of these questions the President committed to the joint discretion of the American commissioners.1 Mr. Fish's Statement of March 8. The original statement in the joint high commission of the complaint of the United States on the subject of the Alabama claims was drawn up by Mr. Fish and was read by him on the 8th of March. The text of it will be given hereafter, when we come to the controversy that arose in regard to the "indirect claims," the term by which the claims discussed by Mr. Sumner as "national claims" came to be known. Definition of Neutral 2 At the conferences on the 9th, 10th, 13th, and 14th of March the joint high commission was occupied with the consideration of a form of rules for the definition of neutral duty, as desired by the American commissioners. In the statement of principles read by Mr. Fish on the 8th of March it was declared to be the duty of a neutral (1) to use "active diligence" to prevent the "construction, fitting out, arming, equipping, or augmenting the force," within its jurisdiction, of a vessel whereby war was intended to be carried on against a power with which it was at peace; (2) to use like diligence, if such vessel should escape, to arrest and detain her when she again came within its jurisdiction; (3) to instruct its naval forces, in all parts of the globe, to arrest and detain a vessel so escaping, wherever found upon the high seas. It was also declared that a power failing to observe either of these rules was justly liable for injuries and 1 For. Rel. 1873, part 3, pp. 275-370. 2 Mr. Davis' MS. Journal. At the conference on the 10th of March Mr. Fish suggested, among other topics for consideration, privateering, the exemption of private property at sea, and the prohibition of the destruction of property captured on the high seas without adjudication by a competent court. The British commissioners did not think that their powers would justify their considering these points, and doubted the wisdom of entering upon them while the principal questions before the commission remained unsettled. (Ibid.) depredations committed and damages occasioned by such vessel. The American commissioners regarded these rules as existing rules of international law; the British commissioners thought otherwise. On the 9th of March the latter presented a paper, embodying their individual views, to the effect that a neutral was bound (1) to take "reasonable care" that no ship employed or intended to be employed in the service of a belligerent should be "equipped for war or suffered to augment her armament" within such neutral's territory, and (2) if a ship which had been "equipped for war" in violation of neutrality should afterward be found within the jurisdiction, to detain it, unless it had in the interval been "commissioned as a public ship of war," or been "deprived of all military equipment and bona fide converted into a ship of commerce." Subsequently, after the American commissioners had presented another draft of rules, Lord de Grey suggested that the term "due diligence" be substituted for the term "active diligence;" and it was done. Lord de Grey also asked whether the rules presented by the American commissioners embodied principles to which the United States would submit in future. Mr. Fish and Mr. Justice Nelson said that they were so regarded. Objection was strongly made by the British commissioners to including separately the "construction" of a vessel in the prohibition against fitting out, arming, or equipping. Mr. Justice Nelson said that, although the word "construction" was not used in the statute of the United States, the courts had held that it was covered by the term "fitting out," if the construction was for hostile purposes. The British commissioners, however, thought the word too broad, and it was ultimately dropped. Great difficulty was found in the discussion of the question as to the duty of arresting a vessel that had escaped and as to when such duty terminated. In regard to the suggestion made by the British commissioners on this subject on the 9th of March various proposals and counter proposals were made. On the 14th of March the American commissioners presented the following paper: "I. A neutral government is bound to use due diligence to prevent the fitting out, arming or equipping within its jurisdiction of any vessel 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 so to cruise or carry on war, such vessel having been specially adapted in whole or in part, within such jurisdiction, to warlike use, or armed, fitted out or equipped therein. "II. A neutral is bound not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations, or as the place for the renewal or angmentation of military supplies, or arms, or the recruitment of men. "III. A neutral is bound to exercise due watchfulness over its ports and waters, and over all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties. "IV. A vessel which has departed from the jurisdiction of a neutral government in violation of the neutrality thereof, if afterward found within the jurisdiction of that government, ought to be detained unless she have in the interval been duly and lawfully commissioned as a public vessel of war; but if she have been thus commissioned as a public vessel of war, and be not detained, the national responsibility of such neutral government continues in respect of injuries and losses occasioned to the aggrieved belligerent subsequent to such departure, and until the original offense be deposited by the bona fide termination of the cruise." The fourth rule it was decided, after much discussion, to omit. The first three rules the British commissioners took into consideration and promised to submit to their government. "Alabama" Claims. At the conference on the 5th of April the Agreement as to the British commissioners stated that they were instructed to declare that they 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 in question. They then presented a slightly amended draft of the rules, which was agreed upon. This draft was as follows: "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 other, or for the purpose of the renewal or aug. mentation 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." When the foregoing rules were adopted, it was also settled that the arbitrator should be governed by such principles of international law, not inconsistent therewith, as he should determine to have been applicable to the case. At the conferences on the 6th, 8th, 9th, 10th, and 12th of April the joint high commission discussed the form of the submission, the manner of the award, and the mode of selecting the arbitrators. The British commissioners, in response to the inquiry of their American colleagues, stated 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 depredatious 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. Subsequent Confer In the conference on the 13th of April Articles I. to XI. of the treaty, relating to the Alabama claims, were agreed to.1 After its agreement as to the arbitration of the Alabama claims, the joint high commission was occupied with the other questions referred to it till the 3d of May.2 On the 4th of May the commissioners met and directed the entry in the protocol of that day of a ences. Statement entered in protocol of May 4, 1871. (For. Rel. 1873, Part 3, pp. 397-398.) 2 It is needless to say that the labors of the commission were attended with the usual social accessories. Lang, in his Life, Letters, and Diaries of Sir Stafford Northcote (II. 12), says: "In an enterprise like that of the British commissioners political and social functions are so blended that it is difficult to keep their descriptions distinct. Dinner parties, dances, receptions, and a queer kind of fox hunt, with pienies and expeditions in the beautiful Virginia country, alternated with serious business and grave discussion." summary prepared by the protocolists of all the proceedings of the commission. On the 6th of May the commissioners again. assembled. "Lord de Grey said that, as the joint high commission would not meet again * except for the purpose of signing the treaty, he desired, on behalf of himself and his colleagues, to express their high appreciation of the manner in which Mr. Fish and his American colleagues had, on their side, conducted the negotiations. It had been most gratifying to the British commissioners to be associated with colleagues who were animated with the same sincere desire as themselves to bring about a settlement, equally honorable and just to both countries, of the various questions of which it had been their duty to treat, and the British commissioners would always retain a grateful recollection of the fair and friendly spirit which the American commissioners had displayed. "Mr. Fish, in behalf of the American commissioners, said that they were gratefully sensible of the friendly words expressed by Lord de Grey, and of the kind spirit which had prompted them. From the date of the first conference the American commissioners had been impressed by the earnestness of desire manifested by the British commissioners to reach a settlement worthy of the two powers who had committed to this joint high commission the treatment of various questions of peculiar interest, complexity, and delicacy. His colleagues and he could never cease to appreciate the generous spirit and the open and friendly manner in which the British commissioners had met and discussed the several questions that had led to the conclusion of a treaty which it was hoped would receive the approval of the people of both countries, and would prove the foundation of a cordial and friendly understanding between them for all time to come. "Mr. Fish further said that he was sure that every member of the joint high commission would desire to record his appre ciation of the ability, the zeal, and the unceasing labor which the joint protocolists had exhibited in the discharge of their arduous and responsible duties, and that he knew that he only gave expression to the feelings of the commissioners in saying that Lord Tenterden and Mr. Bancroft Davis were entitled to, and were requested to accept, the thanks of the joint high commission for their valuable services and the great assistance 5627-35 |