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Cases in which Great Britain has been held responsible...
1.-REPORT OF J. C. BANCROFT DAVIS, AGENT OF THE UNITED
Mr. Davis to Mr. Fish.
Award and proto. cols transmittel
PARIS, September 21, 1872. (Received October 10, 1872.) SIR: I transmit herewith, in a separate inclosure, the original award of the tribunal of arbitration, and, in another separate inclosure, the original protocols of the conferences.
Having now conducted to a successful termination the interests intrusted to me by the President, I respectfully ask permission to make a stateinent respecting them.
At the conference of the joint high commissioners at Washington, in which the subject of the Alabama claims was first considered, the American commissioners, in their opening state high commission ou ment, defined the demands of the United States against Great Britain, growing out of the acts of the Alabama, and the other cruisers, which were to be the subject of the negotiations, in the following language, viz:
Extensive direct losses in the capture and destruction of a large number of vessels, with their cargoes, and in the heavy national expenditure in the pursuit of the cruisers; and indirect injury in the transfer of a large part of the 1971, and statement American commercial marine to the British flag, in the enhanced payirent 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.
At the same time they indicated the manner in which some of these claims could be substantiated, viz: the claims for the loss and destruction of private property in the ordinary manner; the cost of the pursuit of the cruisers by certificates of Government accounting officers," and what they styled " indirect losses" by estimates. All the subsequent negotiations proceeded from this starting point.
It has been shown, beyond possible question, in the argument of General Cushing, Mr. Evarts, and Mr. Waite, presented to the tribunal on the 15th of June last, that this definition of our all provious action claims was in strict accordance with all previous negotiations between the two governments, with the action of the Senate of the United States, and with the official expressions of the President to Congress.
The British members of the joint high commission took no exception to the definition when it was made by their American col. leagues. They acquiesced in it.
When I had the honor to receive the directions of the President to prepare the Case of the United States for submission to the tribunal, I regarded myself as bound by the definition of the beach in the words "Alabama Claims" which the American commission- the agent. ers had given in the opening conference, which they had adhered to throughout the negotiations, and which had been placed in the protocol
In harmony with
No exception taken by British coinmis810ners
Definition of "Ala
protocol, binding on
Preparation of case.
sified as indirect.
Employment of Mr. Beanan.
by the joint act of all the commissioners. I looked in vain in the treaty for any waiver or remission of those claims. On the contrary, I found an express provision that the United States were to have the judgment of the tribunal on all their claims growing out of the acts of the cruisers. The question was a practical one: for the claims for enhanced rates
of insurance” were among those which had been classified Private claims clas. as “indirect” in the statement, which had received the ap
proval of all the members of the joint high commission. Many claims of this character were presented at the Department of State, and a circular was issued, under the immediate direction of the Secretary of State, informing claimants that all claims growing out of the acts of the cruisers would be presented to the tribunal, leaving that body to determine on their merits. It was impossible for me to prepare the Case and, at the same time, to
direct in person the details of the arrangement of the evi
dence respecting the national and individual claims. Mr. Charles C. Beaman, jr., of New York, was employed to do the latter,
under general directions from me, and did his work with admirable fidelity. Thus the evidence already collected,
. together with important new materials from the archives of the several Departments, and the proof of the losses suffered by individual claimants, were arranged and stated in the manner marked out by the American members of the joint high commission, viz:
1. The evidence offered by individual claimants for the loss and deArrangement of the struction of property and for enhanced rates of insurance
was analyzed and tabulated, and a full abstract of each case was prepared by the clerks.
2. The national claims for the pursuit of the cruisers were stated and tabulated at the Navy Department, and were inserted by us exactly as. received from that Department.
3. No proof was offered of the national losses by the transfer of the commercial marine, or by the prolongation of the war, but they were left to be estimated by the tribunal of arbitration, should Great Britain be found responsible for them. The Case, which was reserved for my own work, was constructed on
the following theories of fact and of law—theories which caserepoinciples bave received the sanction of the eminent counsel of the
United States; which have been adhered to in all the arguments, and which have, to no small extent, been adopted by the arbitrators:
(a) That the tribunal of arbitration was a judicial body, substituted The tribunal a ju. 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. (1.) That the injuries of the United States should be stated, therefore,
with the fullness necessary to a determination in a court of
law, and with the same frankness with which they would be stated in case of an appeal to force. I did not think that the United States could obtain full justice at the hands of the arbitrators if any appreciable part of their wrongs were left untold. (c.) That the government of Great Britain, by its indiscreet haste in
counselling the Queen's proclamation recognizing the inof Great Britain and surgents as belligerents, by its preconcerted joint action due dili with France respecting the declarations of the congress of
Paris, by its refusal to take steps for the amendment of its
Case to be stated frankly.
Want of gence
What acts of sub
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 the government, by their open and frequent expressions of sympathy with the insurgents, and of desires for their success, had exhibited an unfriendly feeling, which might affect their own course, and could not but affect the action of their subordinates; and that all this was a want of the “due diligence” in the observance of neutral duties which is required at once by the treaty and by international law.
It seemed to me that such facts, when proved, imbued with the character of culpable negligence many acts of subordinates in the British service for which, otherwise, the government och not responsible might not be held responsible; as, for instance, acts of the for. collector of customs at Liverpool respecting the Florida and the Alabama; acts of the authorities at Nassau respecting the arming of the Florida at Green Bay, and subsequently respecting her supplies of coal; acts of the authorities at Bermuda respecting the Florida; and acts of the authorities at Melbourne respecting the Shenandoah. There were many such acts of subordinates 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 ; but which, taken in connection witli each other, and with the proofs of animus which we offered, establish culpability in the government itself.
(d.) That the insurgents established and maintained, unmolested throughout the insurrection, administrative bureaus on British soil, by means of which the several cruisers were surgemte administras dispatched from British ports, or were enabled to make them British n want bases of hostile operations against the United States, and that the British government was cognizant of it.
(e.) 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 liability. be a breach of international duty; and had refused to exercise diligence to prevent such departure.
(F.) That in point of fact no such diligence had been exercised; and that, while there were particular facts as to each vessel, tending to fix responsibility upon Great Britain, these general indisputable facts were sufficient to carry responsibility for the acts of all the cruisers.
The treatment of this line of argument exhausted five chapters of the Case. These five chapters were printed in a memorandum form, and were submitted to several gentlemen, some of part of case to publi whose names I may mention without violating confidence; only remarking, in justice to them, that they should not be held responsible for the views in this part of the Case, by reason of having read it in advance.
1. They were sent to President Woolsey, who made many valuable suggestions, most of which were adopted.
2. Mr. William Beach Lawrence, the eminent publicist, permitted me to consult him, not only after these chapters were written, Mr. Bereh Law but also during their composition. I did not adopt his well. rence. known views respecting the Queen's proclamation and the unfriendliness of the British cabinet; nor do I suppose that he, knowing my convictions to be otherwise, had any idea that I would adopt them. I did, however, receive from him valuable hints, which improved the work.
of due diligence,
British denial of