« iepriekšējāTurpināt »
STATEMENT OF THE MATTER REFERRED TO THE ARBITRATORS AS IT IS UN
DERSTOOD BY THE GOVERNMENT OF HER BRITANNIC MAJESTY.
PART I.-Introductory statement.
The government of Her Britannic Majesty, in proceeding to state, for the information of the tribunal of arbitration, the facts and arguments which appear material to a just adjudication on the claims to be presented by the Government of the United States, finds it necessary to remark, in the first place, that no
definite and complete statement of those claims, with the grounds on which they are founded, has ever been furnished by the latter Government.
A general definition of them is, however, supplied by the terms of the reference to arbitration contained in Articles I to XI of the treaty of Washington, (8th May, 1871,) coupled with the previous correspondence between
the two governments. The parts of the treaty to which Her Britannic Majesty's government particularly refers are the following:
ARTICLE I. Whereas differences have arisen between the Government of the United States and the Government of Her Britannic 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, ander whatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by those ressels : 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 aforesaud ressels, 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
ARTICLE II. The Arbitrators shall meet at Geneva, in Switzerland, at the earliest convenient day after they shall bave 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 Her Britannic Majesty and the United States respectively. All questions considered by the Tribunal, including the final award, slıall be decided by a majority of all the Arbitrators. ARTICLE VI. In deciding the matters submitted to the Arbitrators they shall be govephed 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 interpational law not inconsistent there with as the Arbitrators shall determine to have been applicable to the case :
A neutral Government is boundFirst. To use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable grounds 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 or 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 I 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.
ARTICLE VII. The decision of the Tribunal shall, if possible, be made within three months from the close of the argument on both sides. It shall be made in writing, and dated, and shall be signed by the Arbitrators who may assent to it. The said Tribunal shall first determine as to each vessel separately whether Great Britain has, by any act or omission, failed to fulfill any of the duties set forth in the foregoing three rules, or recognized by the principles of international law not inconsistent with such rules, and shall certify such fact as to each of the said vessels. In case the Tribunal find that Great Britain has failed to fulfill any duty or duties as aforesaid, it may, if it think proper, proceed to award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it; and in such case the gross sum so awarded shall be paid in coin by the Government of Great Britain to the Government of the United States at Washington within twelve months after the date of the award.
ARTICLE X. In case the Tribunal finds that Great Britain bas failed to fulfill any duty or duties as aforesaid, and does not award a sum in gross, the High Contracting Parties agree that a board of assessors shall be appointed to ascertain and determine what claims are valid, and what amount or amounts shall be paid by Great Britain to the United States on account of the liability arising from such failure as to each vessel, according to the extent of such liability as decided by the Arbitrators.
ARTICLE XI. The High Contracting Parties engage to consider the result of the proceedings of the Tribunal of Arbitration and of the Board of Assessors, should such board be appointed, as a full, perfect, and final settlement of all the claims hereinbefore referred to ; and further engage that every such claim, whether the same may or may not have been presented to the notice of, made, preferred, or laid before the Tribunal or Board, shall, from and after the conclusion of the proceedings of the Tribunal or Board, be considered and treated as finally settled, barred, and thenceforth inadmissible.
The second of the above "Rules” is understood by Her Majesty's gor. ernment as prohibiting the use of the ports or waters of the neutral for the renewal or augmentation of military supplies or arms, only when such supplies or arms are for the service of a vessel cruising or carry. ing on war, or intended to cruise or carry on war, against either belligerent; and as not prohibiting any sale of arms or other military supplies in the ordinary course of commerce; and Her Majesty's government have no reason to believe that it is otherwise understood by the Government of the United States.
The claims, then, which are referred to the tribunal are “claims growing out of the acts of” certain vessels, in respect of which the Government of the United States alleges that Great Britain has failed to fulfill some international duty. The duties specifically mentioned, and to which the attention of the tribunal is directed, are duties to be performed by a “ neutral government” as such. As to each vessel separately, the tribunal is to determine whether there has or has not been any failure of duty on the part of Her Majesty's government. If, in the judgment of the tribunal, there has been such a failure in respect of any specified vessel or vessels, the tribunal may adopt, at its discretion, either of two courses. It may, on the one hand, award such a gross sum as the arbitrators may deem just to be paid by Great Britain, in full satisfaction of all well-founded claims on the part of the United States
, “ growing out of the acts” of the vessel or vessels in respect of which there has been a failure of duty; or, on the other hand, it may content itself with deciding, as to each or any vessel in respect of which there has been a failure of duty, the measure or extent of the liability which on general principles may justly be deemed to have been incurred by such failure. In the event of the second course being chosen, the office of examining and adjudicating on the validity of particular claims " growing out of the acts” of the specified vessel or vessels, and of fixing the sum or sums of money to be paid on account of each, according to the measure of liability laid down by the tribunal, is rem itted to a board of assessors, for constituting which provision is made by Article X.
In effect, therefore, the tribunal is called upon to determine whether, in respect of certain vessels not designated by name, the government of Great Britain, as a neutral power, has made default in the performance of any international obligation due from that power to the United States. Should this question be answered in the affirmative, the tribunal is then to form a judgment on the extent of the liability, if any, incurred by the default, and is either to award a gross sum in satisfaction of all just claims, or to define the general limits of the liability as to each vessel for the guidance of the assessors. The claims which may
be presented to the tribunal, and to which alone it is to have re gard in making its award, are claims " growing out of the acts”
of the vessels (if any) in respect of which a failure of duty shall The vessels to which this inquiry relates are (as has been already remarked) not designated in the treaty by name; they are only indicated by reference to a particular class of claims, to which their acts” are said to have given rise. These claims are assumed in the treaty to have become familiar to both governments, in the course of the correspondence which has passed between them, under the general title of the " Alabama Claims." They are assumed to form a distinct class, well known, and Fasily separable from the mass of miscellaneous claims arising from other sources, for which'latter a different mode of settlement is provided by Articles XII to XVII of the treaty. The Alabama was a ressel which sailed from the port of Liverpool, under circumstances which will be stated below, and was afterward employed as a cruiser in the naval service of the Confederate States. The phrase " The AlaIrama claims" is understood by Her Britannic Majesty's government to embrace all claims " growing” (to use the language of the treaty).“ out of acts committed by ” this vessel, and by other vessels which are alleged to have been procured, like the Alabama, from British ports during the war, and under circumstances more or less similar, and to be confined to such claims. The only vessels in respect of the acts of which claims have been made by the Government of the United States on that of Her Britannic Majesty, either during the civil war or in the sis years which have elapsed since its termination, are the Alabama herself , and the vessels formerly known as the Florida, Georgia, and
On one occasion, indeed, since the close of the war, namely, in a dispatch dated 27th August, 1866, and communicated by the minister of the United States to Her Majesty's government, men
tion was made of a vessel called the Sumter, as one of those in respect of which the Government of the United States conceived itself to have claims against Great Britain. But no claims in respect to the Sumter were in fact included in the detailed list which was inclosed in that dispatch and then presented to Her Britannic Majesty's government, nor have any such claims been presented before or since. Nor is Her Britannic Majesty's government aware of any grounds on which such claims could be made with any show of reason. Her Britannic Majesty's government is, therefore, entitled to assume that the claims referred to the tribunal are claims “ growing out of the acts” of the four vessels above named, or of some or one of them.
The circumstances under which these four vessels respectively sailed from British ports, and came into the possession of the government of the Confederate States, and the considerations which the tribunal will be called upon to apply to them respectively, are, as will hereafter be seen, dissimilar in very material respects. Her Britannic Majesty's government, however, maiutains that in respect of none of them was there, on its part, any failure in the discharge of international obligations rendering Great Britain justly liable to make reparation to the United States for acts committed by them, or by the persons in whose possession they respectively were, out of the jurisdiction of the British Crown.
For the guidance of the tribunal in adjudicating on the questions submitted to it, three “rules” have been laid down, which, by agreement between the two governments, are to be taken as applicable to the case, and to be reciprocally observed in future by Great Britain and the United States. These rules purport to lay down certain specific obligations incumbent in time of war on neutral powers. By them, and by such principles of international law not inconsistent with them as the tribunal shall determine to have been applicable to the case, the tribunal is to be governed. Her Britannic Majesty's government has declined to give its assent to these rules as a statement of principles of international law which were actually in force at the time when the claims now submitted to arbitration arose. But by Her Britannic Majesty's government, as well as that of the United States, they are believed and intended to be not at variance, but in substantial accord with the general principles of that system by wbich both powers alike hold themselves bound, which they alike desire to preserve sacred and inviolate, and from the dominion of which neither of them proposes to withdraw the questions that have unhappily arisen between them. Accepting the roles sincerely and without reserve, in the manner expressed in the sixth article of the treaty, Her Britannic Majesty's government will assume (as is, indeed, clearly implied in the terms of that article) that they are to be construed with reference to, and in connection with, that long-established body of international rules and usages which' was, and still is, common to Great Britain and the United States with other civilized peoples.
STATEMENT OF EVENTS WHICH ATTENDED AND FOLLOWED THE COMMENCEMENT OF THE CIVIL WAR, AND OF THE COURSE PURSUED IN RELATION TO IT BY GREAT BRITAIN AND OTHER MARITIME POWERS.
Before approaching the cases of the vessels to which the claims in question are understood to relate, it is necessary to state concisely the previous course of events, and to place clearly ductory statement. before the tribunal the course of conduct which had been pursued during the earlier period of the war by Her Britannic Majesty's government.
The following propositions are believed by Her Majesty's government to be in accordance with the principles of international law and the practice of nations :
1. It is the duty of a neutral government, in all matters relating to the war, to act impartially toward the belligerent powers; to concede to one what it concedes to the other; to refuse to one what it refuses to the other.
2. This duty, inasmuch as it flows directly from the conception of mentrality, attends the relation of neutrality wherever it exists, and is not affected by considerations arising from the political relation which before the war the belligerents may bave sustained to one another.
3. Maritime war being carried on by hostilities on the high seas, and through the instrumentality (ordinarily) of vessels commissioned by public authority, a neutral power is bound to recognize, in matters relating to the war, commissions issued by each belligerent, and captures made by each, to the same extent and under the same conditions as it recognizes commissions issued and captures made by the other.
4. Where either belligerent is a community or body of persons not recognized by the neutral power as constituting a sovereign state, commissions issued by such belligerent are recognized as acts emanating, not indeed from a sovereign government, but from a person or persons exercising de facto, in relation to the war, the powers of a sovereign government.
THE CIVIL WAR.
In the year 1861 a civil war broke out in the United States. Seven States-South Carolina, Florida, Mississippi, Alabama, Georgia, Louisiana, and Texas-had one by one formally renounced their allegiance to the Union and declared themselves independent. They had formed themselves into a separate confederation, under the title of the “ Confederate States of North America ;" had adopted a federal constitution, instituted a federal legislature, executive, and judiciary; taken measures