Statements of British Commissioners.

By the speech of Earl Granville, as well as by the remarks of the other speakers, it appears that the contention of Her Majesty's government that the indirect claims were not within the jurisdiction of the tribunal of arbitration rested upon the protocols of the joint high commission and on the language of the treaty itself. But, in a speech at Exeter on May 17, 1872, while the controversy as to the claims was still pending, Sir Stafford Northcote said that he and his colleagues "understood a promise to be given that these claims were not to be put for ward, and were not to be submitted to arbritation.”1 Subsequently, however, in a letter addressed to Lord Derby, and read by the latter in the House of Lords, Sir Stafford Northcote explained his meaning by saying that he referred to the "statement voluntarily and formally made by the American commissioners at the opening of the conference of the 8th of March," and that he understood this statement "to amount to an engagement that the claims in question should not be put forward in the event of a treaty being agreed on." But, with the other British commissioners, he had, he said, never for a moment thought of relying upon that conclusion or upon any other matter outside of the treaty itself; they thought that the language of the treaty was sufficient, according to the ordinary rules of interpretation, to exclude the claims for indi rect losses, and at all events the British commissioners meant to make it so.2

In a speech in the House of Lords on June 4, 1872, the Marquis of Ripon denied that the British commissioners at Washington had relied on "a secret understanding subsisting between them and the American commissioners that these indirect claims would not be brought forward." "On the 8th of March," he said, "as referred to in the protocol, these claims were mentioned by the United States commissioners-mentioned in a manner which, in substance, is described in that protocol on your lordship's table; and throughout the course. of the subsequent negotiations these claims were not again brought forward." He also said that it was the object of the British commissioners to employ language in the treaty which excluded the claims.3

1 Papers Relating to the Treaty of Washington, II. 594.

2 Sir Stafford H. Northcote to Lord Derby, Papers Relating to the Treaty of Washington, II. 604.

3 Papers Relating to the Treaty of Washington, II. 603.

can Commissioners.

When the report of Sir Stafford Northcote's Statements of Ameri- speech at Exeter, to the effect that a promise had been given as to the indirect claims, was received at Washington, Mr. Fish addressed a communication to each of the American commissioners saying that he had never heard of any such promise nor suspected anything of the kind, and asking them to state their recollections on the subject. Mr. Hoar answered that he never thought or suspected that any such promise existed, or was understood by anyone to exist; but that, on the contrary, he "always thought and expected that those claims, though incapable from their nature of computation, and from their magnitude incapable of compensation, were to be submitted to the tribunal of arbitration, and urged as a reason why a gross sum should be awarded, which should be an ample and liberal compensation for our losses by captures and burnings, without going into petty details." Judge Nelson said that his recollection was distinct that no such promise was in fact made. Messrs. Schenck and Williams answered to the same effect.*

2

A Case of Misunderstanding.

When these responses were given it was understood by the American commissioners that Sir Stafford Northcote in his speech at Exeter referred to some secret or personal promise, especially as he also said that the difference which had arisen in relation to the indirect claims raised "painful questions" between the British and the American commissioners. But the natural inference from this language was afterward wholly negatived by his letter to Lord Derby, as well as by the speech of the Marquis of Ripon in the House of Lords, so that in the end the controversy was narrowed down to the questions whether the proceedings of the joint high commission of March 8, 1871, as entered in the published protocol of the 4th of May, constituted an engagement on the part of the United States not to present the indirect claims at Geneva, and whether the language of the treaty itself excluded them from the jurisdiction of the tribunal.

When we consider all the circumstances of the case, and the character of the negotiators of the treaty, there can be no

1 Mr. Fish to Judge Nelson, June 3, 1872, Papers Relating to the Treaty of Washington, II. 597.

* Papers Relating to the Treaty of Washington, II. 598.

3 Id. 599.

4 Id. 599, 600.

doubt that the difference as to the question whether the indirect claims were excluded was the result of a simple misunderstanding. These claims formed a subject which the commissioners on both sides were more anxious to get rid of than to discuss. By various utterances the American public had been led to expect that they would be included in any reference to arbitration; and the American commissioners, while regarding the claims as unsound, desired to have them disposed of by the tribunal of arbitration. Understanding the situation of the American commissioners, and being desirous to conclude an arrangement, the British commissioners, thinking that the terms of the protocol and the language of the treaty would be so construed as to exclude the indirect claims, doubtless deemed it well to avoid any attempt to secure from the United States an express renunciation of them. This is, it should seem, a fair statement of the respective positions of the commissioners-positions perfectly comprehensible, and not in any wise morally censurable. But as the course of the United States, and of its agent at Geneva, in putting forward the indirect claims has been severely criticised, it is proper to present a review of the controversy as it appears in the records. As has been seen, the national or indirect claims were first formulated in the speech of Mr. Sumner, urging the rejection of the Johnson-Clarendon convention. They were diplomatically brought to the attention of the British Government by an instruction from Mr. Fish to Mr. Motley of September 25, 1869, which was read by Mr. Motley to Lord Clarendon. At the meeting of the joint high commission on March 8, 1871, to which reference has already been made, Mr. Fish opened the conference by reading a statement of the American claims, which appears in the protocol of May 4, 1871, as follows:

Statement of March 8, 1871.

"At the conference held on the eighth of March the American commissioners stated that the people and Government of the United States felt that they had sustained a great wrong, and that great injuries and losses were inflicted upon their commerce and their material interests by the course and conduct of Great Britain during the recent rebellion in the United States; that what had occurred in Great Britain and her colonies during that period had given rise to feelings in the United States which the people of the United States did not

1 For. Rel. 1873, part 3, pp. 329, 335; Papers Relating to the Treaty of Washington, II. 462.

desire to cherish toward Great Britain; that the history of the Alabama and other cruisers which had been fitted out, or armed, or equipped, or which had received augmentation of force in Great Britain or in her colonies, and of the operations of those vessels, showed extensive direct losses in the capture and destruction of a large number of vessels with their cargoes, and in the heavy national expenditures in the pursuit of the cruisers, 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 also showed that Great Britain, by reason of failure in the proper observance of her duties as a neutral, had become justly liable for the acts of those cruisers and of their tenders; that the claims for the loss and destruction of private property which had thus far been presented amounted to about fourteen millions of dollars, without interest, which amount was liable to be greatly increased by claims which had not been presented; that the cost to which the government had been put in the pursuit of cruisers could easily be ascertained by certificates of government accounting officers; 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.

"The American commissioners further stated that they hoped that the British commissioners would be able to place upon record an expression of regret by Her Majesty's government for the depredations committed by the vessels whose acts were now under discussion. They also proposed that the joint high commission should agree upon a sum which should be paid by Great Britain to the United States, in satisfaction of all the claims and the interest thereon.

"The British commissioners replied that Her Majesty's government could not admit that Great Britain had failed to discharge toward the United States the duties imposed on her by the rules of international law, or that she was justly liable to make good to the United States the losses occasioned by the acts of the cruisers to which the American commissioners had referred. They reminded the American commissioners that several vessels, suspected of being designed to cruise against the United States, including two ironclads, had been arrested or detained by the British Government, and that that government had in some instances not confined itself to the discharge of international obligations, however widely construed, as, for instance, when it acquired at a great cost to the country the control of the Anglo-Chinese flotilla, which, it was apprehended, might be used against the United States.

"They added that although Great Britain had, from the beginning, disavowed any responsibility for the acts of the Ala

bama and the other vessels, she had already shown her willingness, for the sake of the maintenance of friendly relations with the United States, to adopt the principle of arbitration, provided that a fitting arbitrator could be found, and that an agreement could be come to as to the points to which arbitration should apply. They would therefore abstain from replying in detail to the statement of the American commissioners, in the hope that the necessity for entering upon a lengthened controversy might be obviated by the adoption of so fair a mode of settlement as that which they were instructed to propose; and they had now to repeat, on behalf of their government, the offer of arbitration. "The American commissioners expressed their regret at this decision of the British commissioners, and said further that they could not consent to submit the question of the liability of Her Majesty's government to arbitration unless the principles which should govern the arbitrator in the consideration of the facts could be first agreed upon."

Conference of
April 6.

On the 6th of April, rules for the government of the arbitrators having been agreed upon, the British commissioners, who, with some of the American commissioners, preferred the head of a state as arbitrator, agreed to the proposition of Mr. Fish for a tribunal of jurists, and the commissioners then entered upon the question of the kind of award which should be made. This involved the further question of the scope of the submission. From the private journal kept by Mr. Bancroft Davis, the American secretary, and written each day at the close of the conference, I extract the narrative which follows of the discussions of the commissioners.

The American commissioners desired that the arbitrators should be empowered to award a gross sum. Lord de Grey, while admitting that this process had its advantages, thought that if a gross sum was to be named it was important to know what elements should enter into it-what should be the measure of damages.

The American commissioners apprehended that there would be great difficulty in defining any limitation; the discussion which would result would be long and unsatisfactory. They suggested that the tribunal should take into consideration the whole diplomatic correspondence, and such further facts and documents and arguments as might be submitted by either government, and apply to them the principles already agreed upon, together with other principles of international law which had not been discussed in the conference, and that the arbi