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Mr. E. R. Hoar.
Last chapter not
indirect tribunal estimate.
3. Mr. E. R. Hoar, one of the members of the joint high commission,
read these chapters at my request, and expressed his gen
eral approval. I think that he made several suggestions, and that all were adopted. 4. The veteran statesman and scholar, General Cushing, made several
valuable contributions, all of wbich were embodied in the
work. 5. The different members of the Cabinet were consulted, and, so far
as they made suggestions, their views were adopted. It is
within your own knowledge that I received several valuable contributions or hints from you.
It was not until I had thus received and acted on the advice of a wide circle of statesmen, jurists, and publicists, competent to criticise the work, of whose patriotic desire to bave the interests of their country represented with dignity at Geneva no one could doubt, that the final chapter of the work was written. This chapter contained the formal
statement of the claims submitted for adjudication under submitted tor advies the treaty. Among them were those which have since become known as “the indirect claims.” To prevent misapprehension it should be said that this chapter was not sent out for criticism as the others had been. The statements were presented in the exact language of the protocol made by the two parties jointly for the purpose of defining the claims to be submitted to the tribunal. They were accompanied by references to the proofs respecting the individual claims, and the national
claims for the pursuit of the cruisers; and with a request a particular "um tour that the tribunal would estimate the national losses in the
to transfer of the commercial marine, and in the prolongation
of the war. And, in order that the statement might be complete, some reasons were added why, should the tribunal be of opinion that Great Britain was responsible for the prolongation of the war, the prolongation should be dated from July, 1863. The Case, as thus revised, was reprinted, and was, in accordance with
the terms of the treaty, taken to Geneva, and there de
livered to the arbitrators and to the British agent in the official English, (and also in a French translation, made for the convenience of the arbitrators,) together with seven volumes of accompanying documents, correspondence and evidence.
The facts which were disclosed in the Case were, undoubtedly, such as The language or called for the reprobation of just thinking persons; but these
facts were told, so far as I was able to do so, in simple and temperate language, without barshness or violence. Nothing could have been further from my expectations than the outburst which fol. lowed.
In about a fortnight after we left Geneva, it began to be said in the Comments of the London newspapers that the good faith of the British
government was called in question in the American Case, and soon the whole press, with the exception of the newspaper univer: sally recognized as the leading journal, opened an attack upon the chapter on unfriendliness.
The Standard thought we had “sacrificed the consistency and dig. nity of our pleadings to satisfy popular prejudice at home." The Telegraph spoke of the “effrontery with which the American demands were set forth, and said that "it must be borne in mind that General Grant seeks re-election.” The Saturday Review spoke of the narrative as “perverted and spiteful,” and “a malignant composition," and said that “if the Americans wish to express still more hostile feelings, they must
Delivery of the care at Genova.
thu care tried.
Action ot the British
discontinue verbal controversy." The Pall Mall Gazette, usually fair and courteous, though hostile, charged that the claims had been bought up by "American legislators and officers of state even among the higher and more influential grade." The Spectator charged us with “sharp practice," and "a discreditable forcing of the natural meaning of the treaty in order to win popularity at the elections." The Daily News called the claims “extravagant demands intended as an electioneering card," and complained that the case was a "long and passionate pleading," in which - chapter after chapter is devoted to the presumed motives of our (British public men."
In fact, fault was found indiscriminately with nearly everything in the Case except the one thing afterward made the main subject of complaint, namely, the allegation that it contained demands which were not included in the submission in the treaty. That was an objection which · did not appear in the British press until weeks after the exchange of the documents at Geneva, and, so far as I am aware, was not taken by any person entitled to speak by the authority of the government until a still later day.
Even as late as the middle of January negotiations were going on between the respective agents and counsel regarding the times and the manner of making supplemental arguments Rovernment. at Geneva, (should the tribunal call for any,) without an intimation that there might be a difference as to the subjects to be argued. It was not until the 3d of February that the ministry announced officially that they had not anticipated that the claims which have improperly become known as the “ indirect claims" would be presented at Geneva.
Indeed, there is some evidence that the British government was occupied with the parts of the Case which had offended the British press; for I gather from General Schenck's telegram of the American cuse the 27th of February, reporting to you an interview with Lord Granville, that the cabinet bad under consideration at one time the propriety of asking for the absolute withdrawal of the American Case, on other rounds than its presentation of the indirect claims."
For several weeks, I may say months, the London press continued to discuss our national claims. This discussion was conducted with a vehemence, and with insinuations or charges of bad come faith, which attracted the attention of the Continental States. press. In all the principal capitals of Europe, the Alabama claims be. came the subject of comment. The unanimity of the verdict in favor of our construction of the treaty was as complete as was the unanimity of the English press in favor of Great Britain, and it was universally conceded that England could not retire from the arbitration without dishonor. I inclose a variety of extracts on this subject.
During all this time I was occupied in Paris in the preparation of the counter-case, and the other duties of the agency. On the 15th of April I was able to comply with the require. comuter cases ments of the treaty and the directions of the tribunal by delivering the counter-case and accompanying documents to Mr. Favrot for the British agent and for the arbitrators. The volume of evidence accom
to the l' nited
Exchange of the
1 * He [Lord Granville] then said to me that in his note of the 3d he had stated the views of Her Majesty's government as to indirect claims; that there were other portions of [the] American Case they regret, and some of which appear to introduce matters not germane to reference; that he has not been able to consult cabinet here, but is indiridually prepared to recommend to them, and he thinks with reasonable erpectation of sucerns, that they should not press for withdrawal of American Case if the Government of the Lailed States," &c., &c.—(Correspondence respecting Genera Arbitration, page 5.)
of the secretaries.
the British agent.
The argument by
United States argument fled.
panying the counter-case was selected and arranged under the directions of the counsel. At the same time I delivered French translations of these documents, and also two volumes containing French translations of selected pieces from the seven volumes of evidence submitted with the case in December.
This, and much of the subsequent work, could not have been comIndustry and real pleted in season had not the secretaries been willing, when
called upon, to work day and night for the purpose. Lord Tenterden met me at Geneva in April with unreserve, and in the Friendly views of spirit of conciliation. Under instructions from his govern
ment, he lodged with the secretary of the tribunal a notice to the individual arbitrators of the action taken by Her Majesty's goyernment on the 3d of February, in order that the act of filing the British · counter case should not be deemed to be a waiver of that action. But he did not conceal his own strong desire to save the treaty, and he left on my mind the conviction that the judicial solution which the tribunal subsequently made of the political difficulty raised by the British note of the 3d of February would be accepted by the British government. The time between the 15th of April and the 15th of June was occu
pied by the counsel in the preparation of their argument. the counce regarded This argument has attracted great attention throughout
Europe, and has received universal praise as a masterly vindication of our rights. On the 15th of June the tribunal re-assembled, the agents and counsel
on both sides being present. The argument of the United
States was duly delivered, (together with the French translation made for the convenience of the arbitrators;) but the British British move for agent, instead of filing the British argument, asked for an ad
journment of several months, in order to enable the two governments to arrange politically the questions in dispute. I had already discussed with General Cushing the probability of ad
justing these differences by the action of the tribunal. In
stead of assenting to the proposed adjournment, I therefore, with the full concurrence of the counsel, asked for an adjournment of two days, in order to give us time to consider the position. Before the tri. bunal convened again, steps were taken for removing the difficulty through the action of that body. In the proceedings which followed we acted as a unit on our side. Happily they resulted in a solution by the tribunal, which proved to be acceptable to both governments. The
arbitrators announced their opinion that the claims known
a the indirect claims did not constitute, on principles of international law applicable to such cases, good and sufficient foundation for an award of compensation or computation of damages between nations. On the side of Great Britain the solution was a practical one; no damages were to be awarded for this class of claims. On our side the solution was reached in the manner pointed out by the treaty, viz, by the action of the court. On the suggestion of the other side, this unofficial act was then formally entered as an official judgment, in the following language:
Count Sclopis, on behalf of all the arbitrators, then declared that the said several claims for indirect losses inentioned in the statement made by the agent of the United States on the 25th instant, and referred to in the statement just made by the agent of Her Britannic Majesty, are, and from henceforth will be, wholly excluded from the consideration of the Tribunal, and directed the secretary to embody this declaration in the protocol of this day's proceedings.
Consequent nego. tiations
Adjudication on the indirect claims.
Friendly feeling oa
Opinions on the
In all these proceedings, I found the British agent and counsel sharing our sincere and earnest desire to save the both sides. treaty.
The British argument was next filed, with my consent, and an effort was then made on their side to re-open argument and secure a new hearing on the whole question. This was success- bled Motion for fur fully resisted, and the tribunal took a recess for a fortnight.
On Monday, the 15th of July, it re-assembled. The efforts on the part of Great Britain to secure re-argument were renewed. The neutral arbitrators said that they had examined the whole case, and that they wanted no re-hearing. It was decided by the tribunal to give the opinion of the arbitrators seriatim on each cruiser, beginning with the Florida.
Sir Alexander Cockburn presented the facts and reasoning affecting this vessel at an extreme length, holding Great Britain free of blame. The other arbitrators held her responsible, Florida.
, reserving, however, the question as to the effect of a commission.
Sir Alexander Cockburn, then, in vigorous language, and with great warmth of manner, urged the tribunal to permit an argument upon the meaning of the words “due diligence," upon the effect of a commission, and upon the law respecting the supplies of coal. The tribunal granted the request. I was, myself, in favor of allowing further arguments, within some defined scope. I thought that we had nothing to lose by an argument, in which we had the reply, in the hands of such pasters of discussion as General Cushing, Mr. Evarts, and Mr. Waite.
The hearings were ordered, and, before the dissolution of the tribunal, arguments had been made (always on the suggestion of England) on the following points, the British counsel nacement ordered leading and ours following: 1, on the meaning of the words “due diligence;" 2, on the effect of a commission on the offending vessel; 3, on supplies of coal; 4, on the recruitment of men for the Shenandoah, at Melbourne; 5, on the effect of the entry of the Florida into the port of Mobile; 6, on the subject of interest; 7, on the general subject of the statement of claims. These arguments were presented generally both in the English and the French languages.
The protocols which accompany this dispatch show the order in which these various papers were delivered, and the order in which the arbitrators considered the various cruisers. It was not until after the arguments on the first four subjects that the formal votes required by the treaty were taken separately upon the tribunal. responsibility of Great Britain as to each cruiser. The tribunal decided unanimously that there was responsibility for the acts of the Alabama. Count Sclopis, Mr. Stämpfli, and Mr. Adams held that there was responsibility for the acts of the Shenandoah after leaving Melbourne, but not before. Great Britain was released from responsibility as to the other vessels, except the Florida ; Mr. Adams holding that there was responsibility for the acts of the Retribution, and Mr. Stämpfli holding that there was responsibility for the acts of that vessel only so far as related to the Emily Fisher. The formal vote on the Florida was taken at a subsequent conference, after agument by counsel on the special question of the effect of the entry into Mobile. Count Sclopis, Viscount d'Itajuba, Mr. Stämpfli, and Mr. Adams held there was responsibility for her acts.
The deliberations of the tribunal, on the subject of damages, were held with closed doors. The arbitrators asked each party for comparative tables, which were furnished. On our side,
Decision of the
Determination to award
we limited ourselves to the request of the tribunal. On the other side, new tables were put in with new and elaborate criticisms upon our list of claims. We did not object to this irregular criticism, but claimed the right of reply given by the treaty. The tribunal, at length, announced that a result had been reached
that fifteen and a half millions of dollars would be awarded
as a gross sum, to be paid by Great Britain to the United States. It does not appear in the protocols how the arbitrators arrived at this amount. I am informed that it was reached by mutual concessions. The neutral arbitrators and Mr. Adams, from the beginning of the
proceedings, were convinced of the policy of awarding a
sum in gross. For some weeks before the decision was given, I felt sure that the arbitrators would not consent to send the case to assessors until they should have exhausted all efforts to agree themselves upon the sum to be paid. We therefore devoted our energies toward securing such a sum as should be practically an indemnity to the sufferers. Whether we have or have not been successful can be determined only by the fiņal division of the sum. It is due to our counsel to state that in all the proceedings which were
taken since their arrival in Europe no step was made with
out their advice and consent, and many important ones were taken on their suggestion and origination. That their labors have been incessant any one may imagine who sees the mass of able papers which came from their pens. The opinions which the neutral arbitrators presented bear testi
mony to the sagacity, good judgment, and knowledge of uentral the principles of law and fact at issue, which they brought to
bear on the case, and to the untiring labor with which they mastered the varied and difficult questions submitted by the parties for their decisions. It only remains to say that they exhibited throughout marked patience and good temper, and that these admirable qualities were sometimes needed. These opinions will undoubtedly be read with interest. I take the liberty, in closing, to make a few remarks upon the main points at issue, as they are treated in the opinions of the different arbitrators.
Counsel advised on every stage.
Independence and ability of arbitrators.
1. DUE DILIGENCE.
the l'nited States.
We maintained in the Case that the diligence of the neutral should be
proportioned to the magnitude of the subject, and to the
dignity and strength of the power which is to exercise What we che ind by it,” (page 158,) and that it should be “gauged by the
character and magnitude of the matter which it may affect, by the relative condition of the parties, by the ability of the party incurring the liability to exercise the diligence required by the exigencies of the case, and by the extent of the injury which may follow negligence,” (page 152.). We thought, for instance, that it would not be just to hold Brazil, with its extended coast, sparse population, and feeble means of internal communication, and Great Britain, with its compact population, its net-work of railways and telegraphs, and its administrative system always under the control of the central government, to an identical standard of active vigilance.
On the other side it was said: Her Majesty's government knows of no distinction between more dignified and less dignified powers; it regards all sovereign states as enjoying equal rights, and equally
Position of Great Britain,