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and the prolongation of the war, all which grievous effects were ascribed to the cruisers; "without prejudice, however, to the right of indemnification on their account in the event of no such settlement being made." Finally, they expressed the hope 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, the acts of which were under discussion.

The British commissioners replied, in accordance with their instructions, that they could not admit that Great Britain had failed in any of the duties imposed upon her by international law, nor that she was justly liable to make good to the United States the losses occasioned by the acts of the cruisers referred to. They reminded the American commissioners of various acts of the British Government, while the war was in progress, which argued, not merely an impartial, but a friendly animus towards the United States; such as the seizure of the Alexandra, and the iron-clads, and the acquisition, at a great cost, of control over the Anglo-Chinese flotilla, which it was apprehended might be employed against the United States. They added, however, that although Great Britain had consistently disavowed her liability, she had already shown her willingness to adopt the principle of arbitration, provided that a fitting arbitrator could be found, and an agreement arrived at as to the points which should be submitted to his decision. They, therefore, would abstain from replying in detail to the arguments urged on the other side, in the hope that a common understanding might be arrived at for the reference of the matters in dispute to an impartial umpire-a course which would tend to the maintenance of amity better than their continued discussion by the parties themselves. There is something strange and unsatisfactory in this announcement, considered as the indication of a nation's policy. Let us consider in what cases arbitration is naturally and wisely resorted to in differences between individuals. Evidently it is in those cases where the law or the equity of the matter, or both, are doubtful; so that two honest and well-intentioned men, approaching the question from different sides, might easily differ in their appreciation of it. As then some bias towards a solution favourable to self-interest is to be apprehended in the great majority of men, the reference to a third party, who is wholly impartial, commends itself to reason as a good way of putting an end to the difficulty. But this is only where the question is really doubtful, and is felt by both parties to be so. If either party is persuaded that in equity the difference ought to be decided wholly in his favour, he will not consent to its being referred to arbitration unless either he cannot lose, but may gain, from the result of the arbitration, or an adverse decision be immaterial to him, as affecting not at all, or only in an insignificant degree, his honour and his interest. Except in these two cases, he will maintain his position, and leave his adversary, if he thinks himself aggrieved, to his legal remedy.

The rights of the matter, if we substitute nations for individuals, appear to be much the same. The Americans

might reasonably consent to refer the Alabama Claims to arbitrators, because, although they entertained a strong opinion that the equity of the case was all on their side, they, as the claimants of compensation, could not lose, but might gain largely, whatever were the decision of the arbitrators. England, on the contrary, if convinced that equity was on her side, and that the claims made on her were unfounded, had no reason to consent to arbitration. Whichever way the arbitration went, she might lose, but could not possibly gain. Nor, again, was an adverse decision immaterial to her; for, firstly, it would involve a heavy pecuniary mulct; and, secondly, it could not be to her honour to be found guilty of wrong-doing by an independent tribunal, after having roundly maintained the blamelessness of her conduct. Had the question been doubtful and difficult, whether viewed in its legal or in its equitable aspect, England might, on that ground, have reasonably consented to arbitration. But our commissioners took no such ground; they professed to believe the conduct of England above reproach; like lawyers pleading for a client, they made no concessions, not one damaging admission.

But in this case, whatever the real state of international law might have been at the time of the occurrences complained of, the equity of the matter, after the full investigation which it had received, was no longer doubtful. It surely did not become Great Britain to dispute that much laxity had characterised her administration with regard to the equipment and career of several of these vessels; or that, in consequence of this laxity, the Americans had suffered harm and loss. If this was clear, then it was also clear that England owed America reparation; and to dispute her liability to make it was neither just nor dignified. At any rate, if England denied that reparation was due, she should have held to that view at all hazards. But to say, "England owes you no reparation, but we don't mind referring the matter to arbitration," was simply, as the event proved, and as any clear-sighted man could have foreseen, to court humiliation. tribunal decided that England did owe reparation, and that, not on mere technical grounds, but on grounds of equity and reason. The inference was unavoidable, for all those who accepted the verdict as just, that but for some dimness of moral vision in England's representatives at Washington, they would have seen matters in the same light as the foreigners who sat at Geneva.

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But to return to the negotiation. To the proposal of the British commissioners to refer the question to arbitration, the American commissioners replied that they would only consent to this, provided the principles by which the arbitrators should be guided could first be made matter of agreement. They gradually developed their meaning, and it appeared that they desired the definition of new rules or principles of international law, laying down more strictly than before the duties of neutral Powers in time of war. Long discussions arose on this point. The British commissioners were willing to discuss and agree upon rules the observance of which should be held binding for the future; but they thought that the best mode of conducting an arbitration was, to

A.D. 1871.]

THE HISTORY OF THE ALABAMA CLAIMS.

submit the facts to the arbitrator, and leave him free to decide on them after hearing arguments. The American commissioners answered that they were willing to consider what principles should be laid down for observance in similar cases in future, provided that those principles, when agreed to, should be held retrospectively applicable to the facts in respect of the Alabama Claims. The British commissioners felt that they were being hard pressed, said that their instructions did not permit of their agreeing to the arbitrator being fettered by rules, and sought enlightenment from England through the Atlantic telegraph. At this period of the negotiation the communication through the cable between the British commissioners and the Home Government was nearly incessant. The rules of international law proposed by the American commissioners were now brought forward and copiously discussed. So far as is known, there was little difference of opinion in the High Commission as to the soundness of these rules in themselves, nor as to the expediency of adding them to the code of international law, for the future guidance of all nations willing to accept them. But it was strongly contended by the British commissioners that no such rules were recognised as binding upon neutrals at the time when the depredations of the Alabama and the other cruisers occurred; and that it was not just that the arbitrator should try the conduct of Great Britain under an ex post facto law. Upon this point our Government ultimately gave way, and the rules were embodied in the treaty, with a proviso, however, which we shall notice when we come to the examination of that instrument. The three rules were adopted in the session of the 5th April.

During the remainder of the month various arrangements as to the mode of appointing the arbitrator, and the form of procedure, were agreed to. The American commissioners about this time reverted to the expression of a hope, to which they had given utterance at the commencement of the proceedings, that Great Britain would signify regret for what had taken place. The British commissioners (who, it will be remembered, were in constant communication with London) replied that they were authorised 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 depredations committed by those vessels. The American commissioners accepted with great satisfaction this expression of regret, and said they felt sure it would be received as a token of kindness and goodwill by the Government and people of the United States. The articles of the treaty referring to the Alabama Claims were then agreed to.

The remaining clauses referred to the Fisheries question and to the San Juan boundary. The treaty conceded to American fishermen for ten years the right of sea fishery on the Canadian coasts, without restriction as to distance from shore. The river fisheries were, of course, reserved exclusively for British subjects. In return, Canadian fishermen might fish in like manner on American coasts down to the 39th parallel. As to the San Juan boundary question, Articles XXXIV. to XLII.

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of the treaty established the following method for its solution. Our readers are probably aware that under the treaty signed at Washington in 1846, commonly called the Ashburton Treaty, the 49th parallel was fixed as the boundary between British and American territory, from a point near Lake Superior to the middle of the channel which separates Vancouver's Island from the mainland, and thence along the middle of the said channel to the sea. This, it should be observed, was, on the part of England, an important, many thought an excessive, concession, and one which involved great sacrifices; for the fertile lower valley of the Columbia river, and the valuable establishments of the Hudson's Bay Company near its mouth, and at Puget Sound, were by the treaty given up to the United States. When the line defined in the treaty was examined, it was found that, instead of there being one broad channel between Vancouver's Island and the main, as the contracting parties seem to have supposed, the whole space was, at one point, filled up with an archipelago of islands, with narrow channels dividing them. Of these channels the two most in use were the Haro channel, lying close to Vancouver's Island, and the Rosario channel, lying close to the mainland. The British authorities maintained that the Rosario channel corresponded best to the descriptive words of the treaty, and that the boundary-line ought to be run along it; the Americans similarly maintained that the Haro was the proper channel. The reader will perceive that if the Rosario channel were adopted, the archipelago of islands, many of which, particularly that called San Juan, were large and fertile, would fall to England; if the Haro, to America. Now, it was urged by many high authorities, considering the liberal concessions made by us at the time of the Ashburton Treaty, and the importance of the question to Canada, no British minister ought to have consented, under any circumstances, to accept the Haro channel as a boundary. The utmost limits to which concession ought to have gone should have been the acceptance of a compromise, so as to run the boundary along one of the narrow, deep-water channels which intersect the middle of the archipelago. In this way about one half of the islands composing the archipelago would have fallen to America; the other half, including San Juan, to us. Such were the views of those who opposed the policy of the Government. The British commissioners, however, were directed to consent to refer the question to the arbitration of the Emperor of Germany, and to refer it in that particular form which the American commissioners were instructed to require. No power of directing or suggesting any compromise whatever was to be left to the Emperor of Germany; he was simply, after hearing both sides, and taking any evidence he pleased, to decide, finally, and without appeal, which of the two claims, that fixing the boundary to the Rosario, or that fixing it to the Haro channel, was most in accordance with the true interpretation of the Treaty of 1846. In the course of 1872 the Emperor of Germany made his award, which was in favour of the American claim. The important island of San Juan, which in equity belonged to us as rightfully as the Isle of Anglesea,

was thus lost to Great Britain, and the command of Government had undertaken to act upon the principles Fuca Straits given up.

The Alabama Claims were dealt with in the first eleven articles of the Treaty of Washington. In the first article it was agreed, after the expression of regret before noticed, that the claims "generally known as the Alabama Claims" should be referred to a board of five arbitrators, of whom two were to be nominated by the high contracting parties, and the remaining three by the Emperor of Brazil, the King of Italy, and the President of the Swiss Confederation, respectively. In the second article it was provided that the arbitrators should meet at Geneva on as early a day as possible after their nomination, and proceed to examine and decide all questions that should be laid before them by the two Governments, each of which should also name an agent to attend the tribunal, and represent it generally in all matters connected with the arbitration. The next three articles prescribed the mode in which the case of each Government, with documents and evidence, direct and rebutting, should be laid before the tribunal.

The sixth article contained the three rules already referred to. "In deciding the matters submitted to the arbitrators, they shall be governed by the following three rules, which are agreed upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the arbitrators shall determine to have been applicable to the case.

"Rules.-A neutral Government is bound :—

1. "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 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 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.

2. "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 augmentation of military supplies or arms, or the recruitment of men.

3. "To exercise due diligence in its own ports and waters, and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties."

To these rules the following curious proviso was appended:-"Her Britannic Majesty has commissioned her high commissioners and plenipotentiaries to declare that Her Majesty's Government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I. 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, agrees that, in deciding the questions arising out of those claims, the arbitrators should assume that Her Majesty's

set forth in those rules." At the end of the article it was stated that the high contracting parties agreed to observe these rules as between themselves in future; and to bring them to the knowledge of other maritime Powers, and invite them to accede to them.

The seventh article directed the arbitrators to make a separate finding in the case of each cruiser, as to whether Great Britain had or had not violated the obligations of neutrality in her regard. Should the tribunal find that Great Britain had failed to discharge her duty in any such respect, it was empowered to proceed, if it thought proper, to award a sum in gross, to be paid by Great Britain to the United States, in satisfaction of all the claims referred to it, such gross sum being payable in coin at Washington within twelve months after the date of the award. If, however, the tribunal, while finding that Great Britain had failed more or less to perform the duties incumbent upon her as a neutral, should prefer not to award a sum in gross, it was agreed (Article X.) that a board of three assessors, to be nominated respectively by the two Governments and by the Italian Minister at Washington, should be empowered to ascertain and determine what claims were valid, and what amount or amounts should be paid by Great Britain to the United States on account of the liability arising from such failure as to each vessel, according to the extent of such liability as decided by the arbitrators.

The claims of Canada on the United States, on account of depredations committed in the Fenian raid, were brought forward by the British commissioners, who desired that articles for their settlement should be inserted in the present treaty. But the American commissioners refused to enter upon the discussion of this particular class of claims, and the matter was not pressed.

The entire treaty was framed on the 4th May; on the 8th May it was signed, and the labours of the high commission terminated.

The Treaty of Washington was received, not, indeed, with acclamation, but with a discriminating approval, on both sides of the Atlantic. The Senate of the United States ratified it by a majority of fifty to twelve, rejecting some amendments brought forward by Mr. Sumner, who, with characteristic impetuosity, objected to the words of regret introduced in the preamble of the first article, as not being sufficiently apologetic. A long debate arose in the House of Lords, on the 12th June, upon the motion of Lord Russell, that an humble address should be presented to Her Majesty, praying Her Majesty not to ratify any convention for the settlement of the Alabama Claims which imposed as binding on the arbitrators any conditions or rules other than the law of nations, and the municipal law of the United Kingdom, as existing and in force at the time when the alleged violations of neutrality occurred. Lord Granville vindicated the conduct of the Government. With regard to the original proposal to negotiate, he said that, although at the end of 1870 the alarming state of Europe had made the Government desirous of closing all questions still open

A.D. 1871.]

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with the United States as soon as possible, that proposal did not emanate from us, the Government having adopted the opinion of his lamented predecessor, Lord Clarendon, that, after the failure of the Stanley-Johnson convention, the next proposal to negotiate should come from the United States. As to the Canadian claims on account of the Fenian raid, Lord Granville said, "We did not press them, because, having arrived at a satisfactory arrangement on all the numerous and complicated questions at issue between us and the United States; and knowing that the opinion of the high commissioners, including that of Sir John Macdonald, was, that in the present state of parties it would be impossible to obtain from the United States a recognition of these claims, we had to consider whether we ought to destroy all the fruits of the high commission, and allow a third failure to be the result of the negotiation." He denied that the conduct of the British commissioners during the negotiation could be fitly described as a series of concessions. The claim to hold us responsible for the premature recognition of Southern belligerency was brought forward by the American commissioners, but abandoned in consequence of the resolute opposition of our negotiators. And speaking of Mr. Fish's large sketch of a host of enormous claims for "indirect losses" in the very beginning of the protocols, Lord Granville said, "These were pretensions which might have been carried out under the former arbitration [that arranged between Lord Stanley and Mr. Johnson]; but they entirely disappear under the limited reference, which includes merely complaints arising out of the escape of the Alabama,”—he must have meant to add, "and other vessels of her class." General Schenck, the new American Minister, was present in the House of Lords during this debate, and his presence was referred to by Lord Granville in terms of elaborate compliment. Lord Granville, in expressing himself thus, did but interpret the treaty in the way in which it was at that time almost universally interpreted here; but we were all mistaken, as will appear in the sequel. The keen eye of Lord Cairns was not at fault even then. He quite agreed, he said, in the opinion that under the arbitration proposed by Lord Stanley and Lord Clarendon it was quite possible for the United States to have made extravagant claims. "But," he continued, “what is there in the present treaty to prevent the same thing? I cannot find one single word in these protocols or in these rules which would prevent such claims being put in and taking their chance, and under the treaty proposed by my noble friend (Lord Stanley) they could do no

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display of "lamb-like meekness" which had led them to make concessions such as were never made before. As to the abandonment of the pretension to hold us responsible for the recognition of Southern belligerency, or of the claim to recover from us the cost of making good the constructive damage done to American trade, he regarded neither of these as a serious concession, because the Americans could never have thought for a moment that we should entertain such claims.

Lord Russell did not press his motion to a division, and in the Commons the merits of the treaty were not at that time seriously discussed. In the course of the summer, the powers of nomination conferred by the treaty, with a view to the appointment of a board of arbitrators, were duly exercised. The United States nominated Charles Francis Adams, the able and vigilant American Minister in London during the war. Great Britain nominated Sir Alexander Cockburn, the Lord Chief Justice of England. The choice of the King of Italy fell on Count Frederic Sclopis, an ex-minister of state and senator of the kingdom of Italy, who was well known as the author of various writings of merit, in the field of history and jurisprudence. The President of the Swiss Confederation appointed M. Jacob Stampfli, who had once been President himself. Finally, the Emperor of Brazil nominated the Baron d'Itajubá, the Brazilian Envoy at Paris. Lord Tenterden, Assistant Under-Secretary in the Foreign Office, was appointed to be the English agent; and Mr. Bancroft Davis was named agent for the United States.

The first conference of the board of arbitrators took place on the 15th December, 1871. They immediately proceeded to constitute themselves into a tribunal, electing Count Sclopis as their president, and M. Favrot secretary. The agents of the two Powers then filed the respective cases of their Governments, together with corroborative documents. The American case, with its appendices, extended to eight octavo volumes, and filled more than five thousand pages. The British case was also tolerably voluminous, if taken in connection with its appendices, which filled four volumes. It will be observed that the United States appeared before the tribunal to some extent in the character of a plaintiff, and that their case might be regarded as their indictment against Great Britain. The British case, on the other hand, was prepared in ignorance of the exact line and range which the American complaints would take; it was therefore inevitable that much that was contained in the American case should be but imperfectly met in the British case. This had been foreseen and duly provided. for at the time of the drafting of the treaty. The tribunal accordingly ordered the respective counter cases: to be filed on or before April 15, and then adjourned till the 15th June. The counter cases, it will be seen, were answers to the respective cases; at the meeting of the 15th June the arguments on each side, answering the counter cases and arguing the whole question on the merits, were to be given in; and then the tribunal was to consider and pronounce its decision.

On the delivery of the American case to the tribunal

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