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British Government as notice to the United States, because of the alleged presence of Mr. Schenck, the American Minister.

In the first place, the expressions of Lord Granville on that occasion did but very obscurely refer to the question of the so-called indirect claims. He said:

Lord Granville's speech.

The noble Earl said that the United States has made no concessions; but in the very beginning of the protocols, Mr. Fish, renewing the proposition he had made before to much larger national claims, said:

"The history of the Alabama and other cruisers which had been fitted out, or armed, or equipped, or which had received augmentation of force in Great Britain or in her colonies, and of the operations of those vessels, showed extensive direct losses in the capture and destruction of a large number of vessels with their cargoes, and in the heavy national expendituresi n the pursuit of the cruisers; and indirect injury in the transfer of a large part of the American commercial marine to the British flag, in the enhanced payments 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; and also showed that Great Britain, by reason of failure in the proper observance of her duties as a neutral, had become justly liable for the acts of those cruisers and of their tenders; that the claims for the loss and destruction of private property which had thus far been presented amounted to about $14,000,000 without interest; which amount was liable to be greatly increased by claims which had not been presented." 1 These were pretensions which might have been carried out under the former Arbitration; but they entirely disappear under the limited reference which includes merely complaints arising out of the escape of the Alabama. 2

Now there are some things quite remarkable in this part of Lord Granville's speech-the only part which refers to the subject.

Inciting the statement made by the American Commissioners, (not Mr. Fish,) which appears in the protocol of May 4, 1871, he stops at the word "presented," noted with a period, as if it were the conclusion of the statement of the American Commissioners; while in the text there is a semicolon after the word "presented ;" and the sentence concludes with the following words:

That the cost to which the Government had been put in the pursuit of the cruisers could easily be ascertained by certificates of Government accounting officers; that in the hope of an amicable settlement, no estimate was made of the indirect losses, without prejudice, however, to the right to indemnification on their account in the event of no such settlement being made.

Now the concluding words of the sentence, thus omitted by Lord Granville, contradict the intention which is ascribed to the American Commissioners, and thus annihilate the foundation for the subsequent remarks that these "pretensions entirely disappear under the limited reference which includes mere complaints arising out of the escape of the Alabama."

Lord Granville does not say, with Mr. Bernard, that the supposed limitation of the reference consists of inaccurate language, purposely used in the spirit of diplomacy; nor does he say, with Sir Stafford Northcote, that the limitation is to be found in some unrecorded understanding of Commissioners; but he assumes to find the limitation in the express words of the Treaty.

This is done by assuming that the Treaty itself "includes merely com plaints arising out of the escape of the Alabama." This assumption is entirely unfounded; for the Treaty submits "all the said claims, growing out of acts committed by the aforesaid vessels, and generically known as the Alabama claims;"" which is a very different thing from the recital in Lord Granville's speech.

Indeed, taking that speech as a whole, it is by no means clear that Lord Granville intended to set up any other limitation in the Treaty than such as would exclude claims on account of premature recognition of the

1 Parl. Paper, No. 3, (1871,) p. 8.

2 Hansard, vol. cevi, p. 1851.

belligerence of the Confederates by Great Britian. This hypothesis would explain his reference to claims connected with the cruisers.

We have sufficiently demonstrated, we think, that neither this phrase, nor any other contained in the Treaty, justifies the construction put upon it by Lord Granville.

In comparing what was said in this debate in the House of Lords by Lord Granville and Lord Cairns, with what is said by Sir Explanation of the Stafford Northcote in his speech, and Mr. Bernard, in his misunderstanding. lecture, we think we see the explanation of all misconceptions respecting the scope of the treaty prevailing in Great Britain.

The Johnson-Clarendon Treaty did not exclude from consideration, at least by words of express exclusion, claims of the United States on account of the premature recognition by Great Britain of the insurgents. Undue generality of language was imputed to that Treaty by members of either house of Parliament. When the Treaty of Washington came under discussion in Parliament, Lord Granville said, and said truly, that in this respect the Treaty of Washington had advantages over the Johnson-Clarendon Treaty. The former did not, like the latter, comprehend the belligerency question as a ground of claim. Lord Granville proved this by reference to the protocols and also to the Treaty, which in terms confines the American reclamation to losses growing out of the acts of cruisers of the Confederates designated by the typical name of the Alabama.

Mr. Bernard spoke in the same sense when he said in the remarks already quoted that the claims submitted were specific, (which is true,) as they are only the class of claims which grew out of the acts of the cruisers.

When Sir Stafford Northcote speaks of an "understanding" or a "promise" in limitation of the American claims, he confounds the two totally distinct questions of claim on account of the Queen's Proclamation and the national injuries occasioned by it, and the claims on account of the insurgent cruisers and the national injuries occasioned by their acts. It was understood, and it is understood, that the former class of injuries are not comprised in the Treaty, but are in effect excluded by the express language of the Treaty, which confines reclamation to acts of the Confederate cruisers. It was understood, and it is understood, that the claims of the United States under the Treaty are co-extensive with losses growing out of the acts of the Confederate cruisers without limitation, because such is the express stipulation of the Treaty. Sir Stafford Northcote's memory is at fault in suggesting that any understanding existed, or that any promise was ever made to prevent the United States from presenting claims for national injuries in this behalf. These, and the claims of private persons, are two classes of claims which had been previously presented by the American Government, and had been insisted on by it, in all the correspondence and acts associated with the Treaty of Washington.

Resume.

(y) We think the Arbitrators must conclude that Her Majesty's Government is in error in assuming that this august Tribunal is excluded from the consideration of any class of claims brought before it by the Case of the United States. The previous negotiations of the parties, the history of the cliams, the explicit declarations of the American negotiators in the conferences of the Joint High Commission, the proceedings in both Houses of Parliament, the long delay of the British government in acting upon the American Case after they knew its contents, the natural and only reasonable construction of the language of the Treaty itself-all strengthen this belief.

(2) When two Nations have agreed by Treaty to submit to arbitration Arbitration takes a question of national wrong between them, such agreement the place of war. takes the place of war. If therefore it could by ingenious reasoning be made to appear (which we deny) that the British construction of this Treaty might possibly be maintained as plausible, yet we conceive that this Tribunal will, in the general interest of peace, feel itself not only authorized, but required, to so construe the Treaty as to take to itself the decision of every question pertinent to the issues, which, left unsettled, could lead to war. (a a) Pradier Fodéré, in one of his notes to Vattel, makes the following observations:

The Tribunal the judge of its own powers,

Pradier Fodere.

L'arbitrage, très-usité dans le moyen-âge, été presque entierement négligé dans les temps modernes les exemples d'arbitrages offerts et acceptés sont devenus de plus en plus rares, par l'experience des inconvenients qui semblent être presque inséperables de ce moyen, ordinairement insuffisant par le défaut d'un pourvoir sanctionateur. Los que les grandes puissances constituent un tribunal arbitral, ce n'est ordinairement que pour des objets d'intérêt secondaire.1

Yet all men are of accord to look to international Arbitration as one of the means of diminishing wars, and much had been expected as an example from the present Arbitration.

The principle of international arbitration is well defined by Calvo, as follows:

Calvo.

L'arbitrage international dérive de la même cause et repose sur les mêmes principes que l'arbitrage privé en matière civile ou commerciale. Il en diffère eu ce que celui-ci est susceptible d'homologation par un tribunal ordinaire, qu'il est absolument obligatoire et que l'exécution en peut être toujours suivie par les voies de droit commun. Entres les états, le principe de souveraineté et d'independance réciproque n'admet en cette matière qu'une obligation morale de s'incliner devant les résultats de l'arbitrage sollicité; aussi, avant de recourir à ce mode de solution et pour mieux assurer le but définitif que l'on poursuit, est-il d'usage que les parties en présence siguent ce qu'en langage de droit où appelle un compromis, c'est-àdire, une convention spéciale qui précise nettement la question à débattre, expose l'ensemble des points de fait ou de droit qui s'y rattachent, trace les limites du rôle dévolu à l'arbitre et, sauf les cas d'erreur matérielle ou d'injustice flagrante, implique l'engagement de se soumettre de bonne foi à la décision qui pourra intervenir.

Neither party loses anything by such good faith. The nature of the contract of international arbitration affords perfect remedy to either party, in the contingencies in which either is wronged, namely:

1o. Si la sentence a été prononcée sans que les arbitres'y aient été suffisamment autorisés, ou lorsqu'elle a statué en dehors ou au-delà des terines du compromis;

2o. Lorsque ceux qui ont rendu la sentence se trouvaient dans une situation d'incapacité légale ou morale, absolue ou relative, par exemple, s'ils étaient liés par des engagements antérieurs ou avaient dans les conclusions formulées un intérêt direct ignoré des parties qui les avaient choises;

30. Lorsque les arbitres ou l'une des parties adverses n'ont pas agi de bonne foi; 4o. Lorsque l'un ou l'autre de états intéressés dans la question n'a pas été entenda ou mis à même de justifier de ses droits;

5o. Lorsque la sentence porte sur des questions non pertinentes ;

6o. Lorsque sa teneur est absolument contraire aux règles de la justice et ne peut. dès lors, faire l'objet d'une transaction.

3

Conspicuous among causes of exception, is the case of "a sentence which bears on questions not pertinent." But neither party can anticipate that the arbiters will undertake to decide any question beyond their competency.*

Vattel, Droit des gens, éd. P. Fodéré, tom. ii, chap. xviii, sec. 329, note.

2 Calvo, Droit international, éd. fr., 1870, tom. i, p. 791.

3

Calvo, ibid., p. 766. Compare Heffter, Droit international, liv. ii, s. 1095; Bluntschli, Code de Droit international, liv. i, s. 667.

+ Pradier Fodéré, La Question de l'Alabama et le Droit des gens; Pierantoni, Gli arbitrati internazionali e il trattato Washington.

(bb) Great Britain entered into an engagement to submit all the points in question to the Tribunal. We only ask the Tribunal to exercise the measure of jurisdiction which has been conferred upon them.

We assume that the Arbitrators have the power in the first instance to judge of their own competency, both in point of the scope of the Treaty and of the possible action of either Government.

The effect of the Treaty is to create a tribunal with complete jurisdiction of the subject-matter. It differs from a tribunal established by municipal law in two respects: first, that as Arbiters they do not possess the power of causing the execution of their sentence; and, secondly, that constituting an international tribunal, no such authority exists to enforce their sentence as in the case of arbitration under municipal law. In fact, the sanction of the acts of the Tribunal is the faith of the Treaty.

(ee) That the Tribunal possesses power to pass on the question of its competency is a conclusion of general law; otherwise it would be a council of mediation, not a tribunal of arbitration. It is a conclusion also from the tenor of the particular Treaty, which commits to the Tribunal, not only "all differences" and "all claims," but "all questions" submitted by either Government.

This conclusion is in perfect consonance with pure reason. We shall not assume that either Government maintains that, where one of the parties to a contract suggests doubt as to the meaning of some clause, such expression of doubt dissolves the contract. That is contrary to law and to reason. If it were admitted between individuals, no man could ever be compelled to execute a contract. If it were admitted between nations, it would be idle to enter into treaties; for then, if, after treaty concluded, one power regrets its engagement, it needs only to proclaim a difference of intention, and thus to frustrate the rights of the other Power.

Mr. Mount age

(d d) Indeed, if we may regard the pertinent explanations of Mr. Bernard, there is general reason for submitting the construction of treaties to the judgment of arbiters, and special Bernard. reason in regard to the present Treaty. He says of treaties generally: I may be permitted to observe, in passing, before taking leave of this part of the subject, that a treaty is an instrument which you cannot send to be settled in a conveyancer's chambers, nor commit to a knot of wrangling attorneys; no, not even to the family solicitor. It is an instrument in the framing of which the sensitive and punctilious self-respect of governments and nations has to be consulted, and discussion must never be suffered to degenerate into altercation; in which it is often necessary, for the sake of agreement, to accept a less finished or more accurate one; and which must be construed liberally and reasonably, according to what appears to be the true intention of contracting parties. In all this, there is no excuse for equivocal expression, and no defense of such ambiguities can be founded on it; but of apparent faults of expression it has often been, and often will be, the unavoidable cause.

These expressions seem to be introduced as an apology for some intentional obscurity of language in the present Treaty. We do not so regard the matter. The history of the negotiations in this case abundantly shows that every word of the Treaty was well weighed by the British Ministers before it was signed by their Commissioners.

However this may be, if, as Mr. Bernard says, in order to conform to the delicacies of diplomatic intercourse and of international negotiation, it was necessary to employ in the Treaty unfinished language, inaccurate language, "faults of expression," to say nothing of equivocal language, then there is all the more reason why the United States should

Mellii, Institutiones juris civilis Lusitani, lib. i, tit. 4, sec. 21.

- Lecture on the Treaty of Washington, May 28, 1872, London Times, May 29, 1872.

ask the Tribunal to dispel the doubts which were created by the British Commission, for the benefit of the British Government.

If, contrary to our belief, the language of the Treaty be vague or equivocal, or if it rests on understandings unwritten, the question should be judged by the Tribunal, in whose judgment both parties ought to have implicit confidence. Should the judgment involve any act ultra vires, then will be the time for the injured party to refuse to accept such judgment, if the injury is great enough to justify so extreme a remedy. (e e) The United States therefore adhere to the Treaty as of their own right; they adhere to it as the greatest, perhaps, of all modern efforts, to establish the principle of international arbitration; and they adhere to it in the sentiment of profound consideration for this august Tribunal, and for the sovereign States which have been pleased to accept their delicate duties in this behalf at the common solicitation of Great Britain and the United States.

And here we dismiss all considerations of this order, and, maintaining the competency of the Tribunal, we proceed to the question of the amount of damages claimed by the United States.

Rules for measur

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The responsibility of the British Government having, as we think. been established as law and as fact, we shall assume also, ing damages. in what follows, that that responsibility has been proved to be co-extensive with the wrong; that is, it is a responsibility for the acts of the Confederate cruisers in question to the extent of the provis ions of the Treaty.

1. The next inquiry is of the application of this responsibility to the facts, and the induction of the amount of damages for each specific head of injury.

We submit the following rules of judgment in this respect: (a) When the demand of damage is founded on a tort, as distinguished from a contract, severity is to be shown toward the doer in claims found. Wrong-doer, and the losses which the injured party has suffered are to be appreciated with liberality for the purpose of indemnification.

Severity to be shown to the wrong

ed on torts.

Infractions of contract are to be anticipated, in view of the too prevalent carelessness of men in this respect, the possibility of which will. therefore, have been foreseen and taken into consideration by the other party.

But when there is violent wrong, it is a fact beyond prevision, which of course occasions more perturbation and derangement of the affairs of the injured party, and which has a character of perversity more grave than that involved in the mere non-execution of a contract. Of course, reparation should be exacted with more rigor. (b) When the damage claimed is founded on a tort, the culpable animus of the wrong-doer constitutes an element of the question of an ele damage. In such cases the injured party is entitled to damment of damage. ages beyond the amount of actual loss, in the nature of exemplary or punitive damages.

The animus of the wrong-doer

The doctrine in this respect, as understood in Great Britain and the United States, is stated by an American author as follows:

"In these actions all circumstances of aggravation go to the jury.

"The necessary result of this rule is that all the attendant circumstances of aggrava

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