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II. QUESTION OF JURISDICTION.

The Agent of the British Government, by a letter communicated to the Arbitrators on the 15th of April, informed them that a misunderstanding had arisen between the two Governments as to "the nature and extent of the claims referred to the Tribunal ;" and the Agent of the United States in reply reserved to his Government the right to vindicate the disputed jurisdiction of the Tribunal before the Arbitrators. This we shall now proceed to do.

Great Britain con

1. The British Government contends that certain so-called "indirect claims" are not included in the Arbitration. We contend tends that the claims that the Treaty itself contains no sentence, expression, or acope of the Arbitra: Word, to justify this assumption. On that point we appeal to the text, inspection of which is decisive and conclusive of

styled "indirect are not within the

tion.

The term "indi

the question. 2. The British Government in effect seems to admit that the text of the Treaty is all-comprehensive in description of the nature rect not found in of the claims, as claims growing out of the acts of certain the Treaty. vessels, and leaving no subject of inquiry, save in the descriptive words "generically known as Alabama claims," that is, by reference to the principal vessel of the class.

But this expression, "generically known as Alabama claims," does not involve any question of "direct" or "indirect." No such distinction

is implied in the words themselves, or in the context. 3. Accordingly, the British Government insists, not so much on the language of the Treaty, as what they intended when they United States to the assented to it.

Rejoinder of the

British assumption. To this assumption it is obvious to reply, first, that no such intention is expressed in the Treaty; that such intention was not the understanding of the United States; that if Great Britain had any such intention she should have insisted on its insertion in the Treaty; that as both parties used the same language, there could be no room for misapprehension in this respect; that the intention of parties to a contract is recorded in the contract; and that if, by reason of equivocal language, any doubt arises, it is not for either of the parties to assume to decide the question, but it is a question for the decision of the Tribunal.

The Counsel of the United States are, however, prepared to show that Great Britain had ample notice of the extent of the submission as it was understood by the United States; that is to say, the claims of the United States, in the whole extent of the American Case, were again and again presented to the consideration of the British Government, both before and during the negotiation of the Treaty, as appears by the documents annexed to the Case. This we shall presently proceed to show. 4. Before doing this, we call more particular attention to the equivocal nature of the expression "indirect damages" or "direct versy, is equivalent damages," as employed by the British Government. to "national." To what injuries or losses do these words refer? Remote consequential injuries or losses? By no means; but chiefly to the immediate national injuries suffered by the United States.

"Indirect," as used in this contro

The discussions on the part of the British Government are founded upon the assumption that the injuries which one nation does to another as a nation are indirect injuries. We think that such injuries are, on the contrary, emphatically direct in their very nature.

5. To the specification of such claims, when they come to be considered in detail, objection may be made, that such or such particular loss is re

mote and not proximate; but that is a question which arises in the consideration of the facts. It in no respect affects the generality or comprehensiveness of the expression "all claims growing out" of certain acts. 6. In order to demonstrate that the British Government ought not to have been ignorant of the precise claims now objected to, under whatever name the subject of negotiation, we now proceed to cite the documentary proofs.

The word "indi

(a) The Joint High Commissioners, in their negotiations which preceded the Treaty of Washington, made use of the terms "indirect losses" and "direct losses," and these terms were rect used in the besubsequently transferred from the protocols of the confer- sulted in the treaty. ences of the negotiations to the American Case.

gotiation which re

(b) In the public discussions which have since arisen, the terms have apparently been received in a different sense from that in Used in the same which they were employed by the negotiators, and accepted sense in this discusby the two Governments.

sion.

It has been assumed by many persons, who were but partially acquainted with the history of the negotiations, that the United States are contending before this Tribunal to be indemnified for several independent series of injuries; whereas they do, in fact, ask reparation but for one series of injuries, namely, those which they, as a Nation, either directly or through their citizens, and the persons enjoying the protection of their flag, have suffered, by reason of the acts committed by the several vessels referred to in their case, which are generically known as the Alabama claims. When the Treaty was signed, both parties evidently contemplated a discussion before the Arbitrators of all the damages which could be shown or contended to have resulted from the injuries for which the United States were seeking reparation. (c) In order to bring any claim for indemnity within the jurisdiction of the Tribunal, the United States understand that it is necessary for them to establish: 1st, that is a claim; 2d, that at the date of the correspondence between Sir Edward Thornton and Mr. Fish, which led to the Treaty, it was generically known as an Alabama claim; and, 3d, that it grows out of the act of some one of the vessels referred to in their Case. They also understand that the Tribunal of Arbitration has full jurisdiction over all claims of the United States which can be shown to possess these three attributes.

What claims are within the jurisdiction of the Tribunal

respecting

Alabama claims.

opened by

A review of the history of the negotiations between the two Governments prior to the correspondence between Sir Edward Resume of negoThornton and Mr. Fish, will show the Tribunal what was tations intended by these words, "generically known as the Alabama claims," used on each side in that correspondence. (d) The correspondence between the two Governments was Mr. Adams on the 20th of November, 1862, (less than four months after the escape of the Alabama,) in a note to Earl Russell, written under instructions from the Government of and national the United States. In this note Mr. Adams submitted evidence of the acts of the Alabama, and stated: "I have the honor to inform your Lordship of the directions which I have received from my Government to solicit redress for the national and private injuries thus sustained.""1

Mr. Adams, No"redress for private inju

ember, 1962, asks

ries,"

Thus the Government of the United States in the outset notified Her Majesty's Government that it would expect indemnification from Great Britain for both the national and the individual losses, and Liability denied by Lord Russell met this notice on the 19th of December, 1862, Great Britain.

1 American Appendix, vol. iii, pp. 72, 73.

by a denial of any liability for any injuries growing out of the acts of the Alabama.1

United States refuse

their claims.

When this decision was communicated to the Government of the United States, Mr. Seward informed Mr. Adams that that to relinquish Government did "not think itself bound in justice to relinquish its claims for redress for the injuries which have resulted from the fitting out and dispatch of the Alabama in a British port." This statement could have referred only to the claims for na tional and for individual redress which had been thus preferred and refused.

Many claims

As new losses from time to time were suffered by individuals during the war, they were brought to the notice of Her Majesty's lodged dron Government, and were lodged with the national and indi vidual claims already preferred; but argumentative discussion on the issues involved was by common consent deferred.2

war, but discussion deferred.

In the course of these incidents, Mr. Adams had an interview with Earl Russell, (described in a letter from Lord Russell to Lord Lyons, dated March 27, 1863,) in which, referring to the well-known and permitted conspiracy organized in Great Britain to carry on war against the United States through a naval marine created in British waters, and to the means ostentatiously taken to raise money in London for that purpose, he said, that there was "a manifest conspiracy in this country [Great Britain] to produce a state of exasperation in America, and thus bring on a war with Great Britain, with a view to aid the Confederate cause." And on the 23d of October in the same year, (1863,) Mr. Adams proposed to Earl Russell for the settlement of these claims "some fair and conventional form of arbitrament or reference." 3

Reasons for calling

It does not appear that during the war the exact phrase "Alabama claims," was used in the correspondence between the two all the claims Ala- Governments. But it does appear that, in the note in which bama claims." the claims of the United States for the injuries growing out of the acts of the Alabama itself were first preferred, the United States presented the claims of their citizens for the losses in the destruction of the Ocmulgee, and some other vessels, by the Alabama, and also their own claim for national injuries caused by the acts of the same vessel; and that liability for all such injuries being denied by Great Britain, and re-asserted by the United States, the discussion was reserved for a more convenient time by common consent.

When, as already stated, new injuries were received from the acts of other vessels, as well as from acts of the Alabama, claims therefor were added to the list to be all taken up together when the time should arrive. The fact that the first claim preferred grew out of the acts of the Alabama explains how it was that all the claims growing out of the acts of all the vessels came to be "generically known as the Alabama claims."

In April, 1865,

discussion.

On the 7th of April, 1865, the war being virtually over, Mr. Adams renewed the discussion. He transmitted to Earl Russell an United States renew official report showing the number and tonnage of American vessels transferred to the British flag during the war. He said, "The United States commerce is rapidly vanishing from the face of the ocean, and that of Great Britain is multiplying in nearly the same ratio." "This process is going on by reason of the action of British subjects in co-operation with emissaries of the insurgents, who have

1 American Appendix, vol. iii, p. 83.

2 Mr. Adams to Earl Russell, Am. App., vol. ii, p. 641.

3 Am. App., vol. ii, p. 182.

supplied from the ports of Her Majesty's Kingdom all the materials, such as vessels, armament, supplies, and men, indispensable to the ef fective prosecution of this result on the ocean." He asserted that "Great Britain, as a national Power, was fast acquiring the entire maritime commerce of the United States by reason of the acts of a portion of Her Majesty's subjects, engaged in carrying on war against them on the ocean during a time of peace between the two countries ;" and he stated that he was "under the painful necessity of announcing that his Government cannot avoid entailing upon the Govern ment of Great Britain the responsibility for this damage." 1 Lord Russell evidently regarded this as an unequivocal statement of determination to hold Great Britain responsible for at least

a

a portion of the national injuries growing out of the acts

Responsibility of

Great Britain re-as

serted.

Denial of liability

of the cruisers. He said, in reply, "I can never admit that the duties of Great Britain toward the United States are to be measured by the losses which the trade and commerce of the United States have sustained." 2

ify claims as "di

rect," and demand

Mr. Adams, in his reply on the 20th of May, repeated the demand. He referred to the destruction of individual vessels and car- May, 1865, the goes, and said that, "in addition to this direct injury, the United States classaction of these British built, manned, and armed vessels rect" and "indi has had the indirect effect of driving from the sea a large reparation for all. portion of the commercial marine of the United States, and to a corresponding extent enlarging that of Great Britain." He declared that "the very fact of the admitted rise in the rate of insurance on American ships only brings us once more back to look at the original cause of the trouble ;" and he again said, that "the injuries thus received are of so grave a nature as in reason and justice to constitute a valid claim for reparation and indemnification."3

It will be observed that the attention of Her Majesty's Government is thus called in terms to a distinction, which has since become the subject of some controversy, between what were styled "direct" and what were styled "indirect" injuries, and that it was made clear beyond a question that the United States intended to claim remuneration for all.

Lord Russel so understood it, and said in reply:

Great Britain de

nies liability for indirect and refuses arclaims.

bitration for direct

It seems to Her Majesty's Government that, if the liability of neutral nations were stretched thus far, this pretention, new to the law of nations, would be most burdensome, and indeed most dangerous. A maritime Nation, whose people occupy themselves in constructing ships and cannon and arms, might be made responsible for the whole damages of a war in which that Nation had taken no part.1 Referring to the offer of arbitration, made on the 26th day of October, 1863, Lord Russell, in the same no te, said:

Her Majesty's Government must decline either to make reparation and compensation for the captures made by the Alabama, or to refer the question to any foreign State. (c) This terminated the first stage of the negotiations between the two Governments. They commenced with the demand on the part of the United States for remuneration for national and for individual losses growing out of the acts of the Alabama, and a denial of the liability on the other side. This was followed up by similar demands for injuries growing out of the acts of other vessels, and by a proposal to submit the claims to arbitration.

The negotiations were closed by the repudiation of any possible lia

Am. App., vol. i, p. 299; vol. iii, p. 522.

Ibid., vol. i, p. 526.

3 Am. App., vol. iii, p. 553.

4 Ibid., p. 361. Ibid., p. 562.

Lord Russell the

bility of Great Britain for national injuries, as being a doctrine "most dangerous" to neutrals, and by the refusal to arbitrate the question of the captures of vessels and cargoes of individuals made by the Alabama. It will be observed that Lord Russell here uses the word "Alabama" in a generic sense. The note of Mr. Adams to which he was author of the term replying complained of "the burning and destroying on the "Alabama claims." ocean a large number of merchant-vessels and a very large amount of property belonging to the people of the United States by a number of British vessels." The Parliamentary paper from which this extract is cited is styled "Correspondence respecting the Shenandoah.” Mr. Adams's note refers to the acts of the Shenandoah, the Florida,* and the Alabama.3 Lord Russell's note also refers to the Oreto1 and the Shenandoah. It is evident therefore that when he denies liability and refuses the arbitration as to the acts of the Alabama, he uses the word "Alabama" in a generic sense.

This

1866.

term well

The conclusion is irresistible either that the Alabama then stood as the generic representative of all the vessels, or, on the other hand, that Lord Russell first endowed the word Alabama with a generic sense. (d) The evidence before the Tribunal does not show the use of the exact expression "Alabama claims" before October 4, 1866. known in October, It then appeared in a leader in the London Times, in the course of which, after referring to the "so-called Alabama claims," it is said: "The loss occasioned by American commerce in consequence may be damnum sine injuriâ, and therefore no ground of a legal action, and yet it may be a wise act of courtesy to waive the benefit of this plea." It follows from this, that at that early day the phrase "Alabama claims" had become so well known as to be styled "so-called."

Lord Russell pro

Great Britain having thus possessed herself of a large part of the American commercial marine, through the acts of the poses to let by-gones cruisers dispatched from her ports to carry on war against bc by-gones. the United States, and having refused not only to make indemnity therefor, but also to submit the question of her liability to arbitration, Lord Russell next proposed, with what makes approach at least to audacity, "the appointment of a commission to which shall be referred all claims arising during the late civil war, which the two Powers shall agree to refer," excluding of course the Alabama claims; in other words, that the extravagant claims of British subjects upon the United States should be recognized, while the grave injuries to the United States and their citizens should be ignored. Great Britain also proposed to guard against a possible retransfer of the commercial marine to the United States under the same circumstances, when England should be a belligerent and the United States should be neutral, by letting "by-gones be by-gones," "forgetting the past," and, "as each had become aware of defects that existed in international law," "attempting the improvements in that code which had been proved to be necessary." Mr. Seward in reply said:

United States [de

their claims.

There is not one member of this Government, and, so far as I know, not one citizen of the United States, who expects that this country will waive, in any chine to waive any of case, the demands that we have heretofore made upon the British Government for redress of wrongs committed in violation of international law. I think that the country would be equally unanimous in declining every form of negotiation that should have in view merely prospective regulations of national intercourse, so long as the justice of our existing claims for indemnity is denied by Her

Ibid., p. 22. 5 Ibid., p. 3.

Brit. App., vol. iv, paper v, p. 10.

2 Ibid., p. 11.

3 Ibid., p. 12.

Lord Clarendon to Sir F. Bruce, Brit. App., vol. iv, paper 5, p. 164.

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