chapter 25._

ALABAMA CLAIMS, The: A. D. 1871. The Treaty of Washington.

The treaty signed at Washington on the 8th day of May, 1871, and the ratifications of which were exchanged at London on the 17th day of the following June, set forth its principal agreement in the first two articles as follows: "Whereas differences have arisen between the Government of the United States and the Government of Her Brittanic Majesty, and still exist, growing out of the acts committed by the several vessels which have given rise to the claims generically known as the 'Alabama Claims;' and whereas Her Britannic Majesty has authorized Her High Commissioners and Plenipotentiaries 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: Now, in order to remove and adjust all complaints and claims on the part of the United States and to provide for the speedy settlement of such claims which are not admitted by Her Britannic Majesty's Government, the high contracting parties agree that all the said claims, growing out of acts committed by the aforesaid vessels, and generically known as the 'Alabama Claims,' shall be referred to a tribunal of arbitration to be composed of five Arbitrators, to be appointed in the following manner, that is to say: One shall be named by the President of the United States; one shall be named by Her Britannic Majesty; His Majesty the King of Italy shall be requested to name one; the President of the Swiss Confederation shall be requested to name one; and His Majesty the Emperor of Brazil shall be requested to name one. … The Arbitrators shall meet at Geneva, in Switzerland, at the earliest convenient day after they shall have been named, and shall proceed impartially and carefully to examine and decide all questions that shall be laid before them on the part of the Governments of the United States and Her Britannic Majesty respectively. All questions considered by the tribunal, including the final award, shall be decided by a majority of all the Arbitrators. Each of the high contracting parties shall also name one person to attend the tribunal as its Agent to represent it generally in all matters connected with the arbitration." Articles 3, 4 and 5 of the treaty specify the mode in which each party shall submit its case. Article 6 declares that, "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: {28} 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 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. 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 augmentation of military supplies or arms, or the recruitment of men. Thirdly 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. Her Britannic Majesty has commanded 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 1 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 between the two countries arising out of those claims, the Arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these rules. And the high contracting parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them." Articles 7 to 17, inclusive, relate to the procedure of the tribunal of arbitration, and provide for the determination of claims, by assessors and commissioners, in case the Arbitrators should find any liability on the part of Great Britain and should not award a sum in gross to be paid in settlement thereof. Articles 18 to 25 relate to the Fisheries. By Article 18 it is agreed that in addition to the liberty secured to American fishermen by the convention of 1818, "of taking, curing and drying fish on certain coasts of the British North American colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty for [a period of ten years, and two years further after notice given by either party of its wish to terminate the arrangement] … to take fish of every kind, except shell fish, on the sea-coasts and shores, and in the bays, harbours and creeks, of the provinces of Quebec, Nova Scotia and New Brunswick, and the colony of Prince Edward's Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen, in the peaceable use of any part of the said coasts in their occupancy for the same purpose. It is understood that the above-mentioned liberty applies solely to the sea-fishery, and that the salmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers, are hereby reserved exclusively for British fishermen." Article 19 secures to British subjects the corresponding rights of fishing, &c., on the eastern sea-coasts and shores of the United States north of the 39th parallel of north latitude. Article 20 reserves from these stipulations the places that were reserved from the common right of fishing under the first article of the treaty of June 5, 1854. Article 21 provides for the reciprocal admission of fish and fish oil into each country from the other, free of duty (excepting fish of the inland lakes and fish preserved in oil). Article 22 provides that, "Inasmuch as it is asserted by the Government of Her Britannic Majesty that the privileges accorded to the citizens of the United States under Article XVIII of this treaty are of greater value than those accorded by Articles XIX and XXI of this treaty to the subjects of Her Britannic Majesty, and this assertion is not admitted by the Government of the United States, it is further agreed that Commissioners shall be appointed to determine … the amount of any compensation which in their opinion, ought to be paid by the Government of the United States to the Government of Her Britannic Majesty." Article 23 provides for the appointment of such Commissioners, one by the President of the United States, one by Her Britannic Majesty, and the third by the President and Her Majesty conjointly; or, failing of agreement within three months, the third Commissioner to be named by the Austrian Minister at London. The Commissioners to meet at Halifax, and their procedure to be as prescribed and regulated by Articles 24 and 25. Articles 26 to 31 define certain reciprocal privileges accorded by each government to the subjects of the other, including the navigation of the St. Lawrence, Yukon, Porcupine and Stikine Rivers, Lake Michigan, and the WeIland, St. Lawrence and St. Clair Flats canals; and the transportation of goods in bond through the territory of one country into the other without payment of duties. Article 32 extends the provisions of Articles 18 to 25 of the treaty to Newfoundland if all parties concerned enact the necessary laws, but not otherwise. Article 33 limits the duration of Articles 18 to 25 and Article 30, to ten years from the date of their going into effect, and "further until the expiration of two years after either of the two high contracting parties shall have given notice to the other of its wish to terminate the same." The remaining articles of the treaty provide for submitting to the arbitration of the Emperor of Germany the Northwestern water-boundary question (in the channel between Vancouver's Island and the continent)—to complete the settlement of Northwestern boundary disputes.

_Treaties and Conventions between the U. S. and other Powers (edition of 1889), pages 478-493._

ALSO IN _C. Cushing, The Treaty of Washington, appendix._

{29}

ALABAMA CLAIMS, The: A. D. 1871-1872. The Tribunal of Arbitration at Geneva, and its Award.

"The appointment of Arbitrators took place in due course, and with the ready good-will of the three neutral governments. The United States appointed Mr. Charles Francis Adams; Great Britain appointed Sir Alexander Cockburn; the King of Italy named Count Frederic Sclopis; the President of the Swiss Confederation, Mr. Jacob Stæmpfii; and the Emperor of Brazil, the Baron d'Itajubá. Mr. J. C. Bancroft Davis was appointed Agent of the United States, and Lord Tenterden of Great Britain. The Tribunal was organized for the reception of the case of each party, and held its first conference [at Geneva, Switzerland] on the 15th of December, 1871," Count Sclopis being chosen to preside. "The printed Case of the United States, with accompanying documents, was filed by Mr. Bancroft Davis, and the printed Case of Great Britain, with documents, by Lord Tenterden. The Tribunal made regulation for the filing of the respective Counter-Cases on or before the 15th day of April next ensuing, as required by the Treaty; and for the convening of a special meeting of the Tribunal, if occasion should require; and then, at a second meeting, on the next day, they adjourned until the 15th of June next ensuing, subject to a prior call by the Secretary, if there should be occasion." The sessions of the Tribunal were resumed on the 15th of June, 1872, according to the adjournment, and were continued until the 14th of September following, when the decision and award were announced, and were signed by all the Arbitrators except the British representative, Sir Alexander Cockburn, who dissented. It was found by the Tribunal that the British Government had "failed to use due diligence in the performance of its neutral obligations" with respect to the cruisers Alabama and Florida, and the several tenders of those vessels; and also with respect to the Shenandoah after her departure from Melbourne, February 18, 1865, but not before that date. With respect to the Georgia, the Sumter, the Nashville, the Tallahassee and the Chickamauga, it was the finding of the Tribunal that Great Britain had not failed to perform the duties of a neutral power. So far as relates to the vessels called the Sallie, the Jefferson Davis, the Music, the Boston, and the V. H. Joy, it was the decision of the Tribunal that they ought to be excluded from consideration for want of evidence. "So far as relates to the particulars of the indemnity claimed by the United States, the costs of pursuit of Confederate cruisers" are declared to be "not, in the judgment of the Tribunal, properly distinguishable from the general expenses of the war carried on by the United States," and "there is no ground for awarding to the United States any sum by way of indemnity under this head." A similar decision put aside the whole consideration of claims for "prospective earnings." Finally, the award was rendered in the following language: "Whereas, in order to arrive at an equitable compensation for the damages which have been sustained, it is necessary to set aside all double claims for the same losses, and all claims for 'gross freights' so far as they exceed 'net freights;' and whereas it is just and reasonable to allow interest at a reasonable rate; and whereas, in accordance with the spirit and letter of the Treaty of Washington, it is preferable to adopt the form of adjudication of a sum in gross, rather than to refer the subject of compensation for further discussion and deliberation to a Board of Assessors, as provided by Article X of the said Treaty: The Tribunal, making use of the authority conferred upon it by Article VII of the said Treaty, by a majority of four voices to one, awards to the United States the sum of fifteen millions five hundred thousand Dollars in gold as the indemnity to be paid by Great Britain to the United States for the satisfaction of all the claims referred to the consideration of the Tribunal, conformably to the provisions contained in Article VII of the aforesaid Treaty." It should be stated that the so-called "indirect claims" of the United States, for consequential losses and damages, growing out of the encouragement of the Southern Rebellion, the prolongation of the war, &c., were dropped from consideration at the outset of the session of the Tribunal, in June, the Arbitrators agreeing then in a statement of opinion to the effect that "these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations." This declaration was accepted by the United States as decisive of the question, and the hearing proceeded accordingly.

_C. Cushing, The Treaty of Washington._

ALSO IN _F. Wharton, Digest of the International Law of the United States,