The government vessels destroyed were of two classes, those under the charge of the Treasury Department and those under the charge of the Navy Department. Evidence was presented to enable the tribunal to determine the amount of damage which should be awarded for the destruction of vessels or property, whether of the government or of private persons. A detailed statement was presented of the amount of the national expenditures in pursuit of the Confederate cruisers. The total amount of the claims submitted, so far as they were definitely estimated, was $26,101,907.31, exclusive of interest. This sum was composed of two principal items, $7,080,478.70, representing the expenses incurred by the United States in fitting out vessels to cruise for the Alabama and other Confederate cruisers, and $19,021,428.61, representing the amount claimed for the seizure, detention, and destruction of vessels by those cruisers. The latter item included claims for increased war premiums.

Of the "national" or "indirect" claims no estimate was made. A statement by Mr. Cobden in the House of Commons, in 1864, was brought to the attention of the tribunal, to show the losses suffered by the United States in the transfer of the American commercial marine to the British flag. And it was said to be "impossible for the United States to determine," and perhaps impossible for anyone to estimate with accuracy, the vast injuries which these cruisers caused in prolonging the war." By the battle of Gettysburg in July 1863 the aggressive force of the insurrection on land was crushed. Thereafter "its only hope lay in prolonging a defense until, by the continuance of the permitted violations of British neutrality by the insurgents, the United States should become involved in a war with Great Britain." In pursuance of this policy the Confederate authorities "withdrew their military forces within the lines of Richmond, and poured money into Bullock's hands to keep afloat and increase his British-built navy, and to send it into the most distant seas in pursuit of the merchant marine of the United States."

On the amounts which should be allowed in respect of the several losses and injuries complained of, the American Case asked for interest to the day when the award was payable by the terms of the treaty-twelve months after the date of the award. The rate of interest asked for was 7 per cent, the legal rate in New York, and July 1, 1863, was suggested as an "average day" from which the interest should be computed.

Theory of the American Case.

The theories of law and of fact on which the Case of the United States was constructed were succinctly explained by Mr. Davis, its author, in his final report as agent of the United States at Geneva.1 Setting out with the assumption that the "tribunal of arbitration was a judicial body, substituted by the parties to take the place of force, and empowered to try and determine issues. which otherwise could be settled (if at all) only by war," the author of the Case deemed it necessary, in order that full justice might be done, that the injuries of which the United States complained should be stated "with the fullness necessary to a

1

1 Papers Relating to the Treaty of Washington, IV. 2. Various statements having been made as to the authorship of the Case of the United States, it is proper to say that it was the work of Mr. J. C. Bancroft Davis, the American agent. (Mr. Fish and the Alabama Claims, 86.) In Appleton's Cyclopædia of American Biography the authorship of the Case is ascribed to the late Chief Justice Waite. It is probable that this erroneous statement was due to an inadvertent supposition that the Case was prepared by the American counsel at Geneva, of whom Mr. Waite was one. It is certain that that eminent man never authorized such a statement himself. On the contrary, when, on a certain occasion, I referred to his part in the litigation at Geneva, he disclaimed with characteristic modesty any credit for the result, and declared that in his opinion the success of the United States was largely due to Mr. Davis, who, as he said, not only prepared the American Case, but infused life into the American cause to the end. When the first five chapters of the Case were completed they were submitted, in the form of a printed memorandum, to President Woolsey, of Yale, Mr. William Beach Lawrence, Mr. E. R. Hoar, and Mr. Caleb Cushing. President Woolsey "made many valuable suggestions, most of which were adopted." Mr. Lawrence, who was consulted during the composition of the chapters, as well as afterward, gave "valuable hints, which improved the work." Mr. Hoar "expressed his general approval,” and made several suggestions, which were adopted; and Mr. Cushing "made several valuable contributions, all of which were embodied in the work." Different members of the Cabinet were also consulted, "and, so far as they made suggestions, their views were adopted." "Several valuable contributions or hints" were also received from Mr. Fish. After the first five chapters were thus considered and revised, the sixth and final chapter, containing the formal statement of claims, was written; but, not being argumentative in character, it was not sent out for criticism as the other chapters had been. (See Report of Mr. Davis, Papers Relating to the Treaty of Washington, IV.3.)

Mr. George F. Edmunds, in his memorial address on Mr. Fish before the legislature of New York, referring to Mr. Davis as the author of the American Case, expressed the opinion that "no stronger statement of the position and rights of the United States could have been set forth by anyone." (Proceedings of the Legislature of the State of New York in Memory of Hou. Hamilton Fish, 48.)

determination in a court of law, and with the same frankness with which they would be stated in case of an appeal to force." In this view of the subject, the inquiry as to the attitude and the animus of the British Government toward the United States during the civil war became of the utmost importance, especially as affecting the question whether that government had used "due diligence" in the performance of its neutral duties. It was not denied that there were many "acts of insubordinates which, taken individually and by themselves, would not form a just basis for holding culpable a government which was honestly and with vigilance striving to perform its duty as a neutral." Yet these same acts might, when taken in connection with each other, and with proof of animus, establish culpability in the government itself. Thus, it might be argued that the British Government would not be responsible for such acts, taken by themselves, as those of the collector of customs at Liverpool respecting the Florida and the Alabama, of the authorities at Nassau respecting the arming of the Florida at Green Cay, and subsequently respecting her supplies of coal, and of the authorities at Melbourne respecting the Shenandoah. But these acts were, it was maintained, all imbued with the character of culpable negligence, when it was shown "that the Government of Great Britain, by its indiscreet haste in counseling the Queen's proclamation recognizing the insurgents as belligerents, by its preconcerted joint action with France respecting the declarations of the Congress of Paris, by its refusal to take steps for the amendment of its neutrality laws, by its refraining for so long a time from seizing the rams at Liverpool, by its conduct in the affair of the Trent, and by its approval of the course of its colonial officers at various times; and that the individual members of government, by their open and frequent expressions of sympathy with the insurgents, and of desire for their success, had exhibited an unfriendly feeling, which might affect their own course, and could not but affect the action of their subordinates."

Moreover, it was contended "that while there were particular facts as to each vessel tending to fix responsibility upon Great Britain," the general facts that "the insurgents established and maintained, unmolested throughout the insurrection, administrative bureaus on British soil, by means of which the several cruisers were dispatched from British ports or were enabled to make them bases of hostile operations against the

United States, and that the British Government was cognizant of it;" that "Great Britain from the outset denied, and to the last persisted in denying, that the departure of vessels like the Alabama and the Florida under any circumstances could be a breach of international duty, and had refused to exercise diligence to prevent such departure," and that "in point of fact no such diligence had been exercised"-it was contended that "these general indisputable facts were sufficient to carry responsibility for the acts of all the cruisers."

The British Case began with an exposition The British Case. of the subject-matter of the arbitration, as it was "understood by the government of Her Britannic Majesty." As to the claims embraced in the treaty, it was said that the phrase "the Alabama claims" was understood by Her Majesty's government to embrace all claims "growing out of acts committed by" that vessel and by other vessels which were alleged to have been procured, like the Alabama, from British ports during the war, and under circumstances more or less similar. The only vessels, it was said, in respect of the acts of which diplomatic claims had been made by the Government of the United States were the Alabama herself and the vessels formerly known as the Florida, the Georgia, and the Shenandoah. On one occasion, since the close of the war, the Government of the United States had mentioned a vessel called the Sumter as one of those in respect of which it conceived itself to have claims against Great Britain. But no claims in respect of the Sumter had been presented, nor was Her Majesty's government aware of any grounds on which such claims could be made with any show of reason.

national Law.

The second part of the British Case opened Propositions of Inter- with a statement of the following propositions, which were said to be in accordance with the principles of international law and the practice of nations:

"1. It is the duty of a neutral government, in all matters relating to the war, to act impartially toward the belligerent powers; to concede to one what it concedes to the other; to refuse to one what it refuses to the other.

"2. This duty, inasmuch as it flows directly from the conception of neutrality, attends the relation of neutrality wherever it exists, and is not affected by considerations arising from the political relation which before the war the belligerents may have sustained to one another.

"3. Maritime war being carried on by hostilities on the high 5627-38

seas, and through the instrumentality (ordinarily) of vessels commissioned by public authority, a neutral power is bound to recognize, in matters relating to the war, commissions issued by each belligerent, and captures made by each, to the same extent and under the same conditions as it recognizes commissions issued and captures made by the other.

4. Where either belligerent is a community or body of persons not recognized by the neutral power as constituting a sovereign state, commissions issued by such belligerent are recognized as acts emanating, not indeed from a sovereign government, but from a person or persons exercising de facto, in relation to the war, the powers of a sovereign government."

Development of War of Secession.

The British Case then referred to the secession movement, the attack on Fort Sumter, the seizure by Virginia militia of Harpers Ferry, and the proclamation of President Lincoln of April 15, 1861, calling out the militia to the number of 75,000 men; to the counter proclamation of Mr. Jefferson Davis, president of the Confederate States, on the 17th of April, inviting applications for letters of marque and reprisal; to the proclamation of President Lincoln of April 19 for the blockade of the ports of the seven States then in revolt; to his proclamation of April 27 extending the blockade to the ports of northern Virginia; to the seizure of vessels and cargoes under these proclamations of blockade, and their subsequent condemnation by the Supreme Court of the United States in the "prize cases," in which it was declared that the proclamation of a blockade was "itself official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure under the circumstances peculiar to the case;" to the note of Mr. Seward to Lord Lyons of May 1, 1861, referring to the existing war and to the blockade of the ports of the insurgent States; to the acts passed by the Confederate con. gress on May 6 and May 14, 1861, relating to letters of marque and reprisal, and regulating the disposition of prizes; and to the fitting out in the same month, or soon afterward, in the Confederate ports, of a number of armed vessels, mostly of small tonnage, which made a considerable number of captures, among such vessels being the Calhoun, the Jeff. Davis, the Savannah, the St. Nicholas, the Winslow, and the York. From time to time other armed vessels were likewise sent out by the Confederacy. The Sumter went to sea in June 1861; the Sallie and the Nashville in October of the same year; the Echo in