sors to determine what claims are valid, and what amount shall be paid 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 X.)

Thus it appears that the Treaty provides, by various forms of expression, that the liability of Great Britain to pay follows on the conviction of Great Britain of failure to perform her duty in the premises, in conformity with the law of nations and the contract "Rules."

4. What is the measure of this liability? Such is the question which remains to be discussed.

Measure of lia

The Counsel of the United States respond to this question bility considered. in general terms as follows:

The acts of commission or omission charged to the British Government in the premises constituted due cause of war; in abstaining from war, and consenting to substitute indemnity by arbitration for the wrongs suffered by the United States at the hands of Great Britain, the United States are entitled to redress in damages, general and particular, national and individual, co-extensive with the cause of war, that is to say, sufficient to constitute real indemnification for all the injuries suffered by the United States.

The Tribunal, in order to give such complete indemnity to the United States, would have to take up and consider each one of the heads of claim set forth in the American Case.

These are:

Claims of losses set forth in the American Case.

(a) The claims for private losses growing out of the destruction of vessels and their cargoes by the insurgent cruisers.

(b) The national expenditures in pursuit of those cruisers.

(c) The loss in the transfer of the American commercial marine to the British flag.

(d) The enhanced payments of insurance by private persons.

(e) The prolongation of the war, and the addition of a large sum to the cost of the war, and of the suppression of the Rebellion.

5. All these claims are, as we conceive, clearly comprehended in the positive terms of the Treaty.

all

These claims terms of the Treaty.

Whether any of such claims, or any part of them, are comprehended in the so remote in their nature in relation to the acts of the Confederate cruisers as to demand rejection by application of the rule of ordinary law, "Causa proxima, non remota spectatur," is a juridical question to be argued as such before the tribunal on the facts, not a question of the tenor of the Treaty.

وو

6. All the claims enumerated are of losses "growing out of the acts of the Confederate cruisers; all of them are the actual consequences of those acts; whether to be allowed as proximate consequences, or to be disallowed as remote consequences, it is for the Tribunal to decide.

Such comprehensiveness of the Treaty is, in the opinion of the Counsel of the United States, the apparent meaning of the Treaty; it is the only grammatical meaning, it is the logical meaning, it is the true meaning of the Treaty.

The Treaty, in words of unmistakable universality, submits to the Tribunal all differences, all claims, all questions growing out of the acts. of the cruisers under consideration.

The language is unequivocal. There is no exception of any particular class or speciality of "difference," " of claim," of question, "growing out of the acts of such cruisers." Not a word is said of direct claims, or of indirect claims. If any such exception were contemplated or intended by either party, he abstained from inserting it, or any hint of it, in the Treaty itself.

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 scope 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 question.

The term "indi

rect

2. The British Government in effect seems to admit that the text of the Treaty is all-comprehensive in description of the nature not found in of the claims, as claims growing out of the acts of certain 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.

the Treaty.

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 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

to national."

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 nesubsequently 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.

tion of the Tribunal.

(c) In order to bring any claim for indemnity within the jurisdiction of the Tribunal, the United States understand that it is What claims are necessary for them to establish: 1st, that is a claim; 2d, within the jurisdicthat 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.

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.

respecting

Alabama claims.

No

"redress for private

ries."

(d) The correspondence between the two Governments was opened by Mr. Adams on the 20th of November, 1862, (less than four Mr. Adams, months after the escape of the Alabama,) in a note to Earl vember, 1862. asks Russell, written under instructions from the Government of and national injuthe 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

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 Lord Russell met this notice on the 19th of December, 1862,

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

Liability denied by

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 national 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 during the Government, and were lodged with the national and individual claims already preferred; but argumentative discussion on the issues involved was by common consent deferred."

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

66

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

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- Great Britain re-asment of Great Britain the responsibility for this damage." 1 Lord Russell evidently regarded this as an unequivocal statement of a determination to hold Great Britain responsible for at least

Responsibility of

serted.

Denial of liability

a portion of the national injuries growing out of the acts. 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 "indihas 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 caunon and arms, might be made responsible for the whole damages of a war in which that Nation had taken no part.4 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.5 (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

1 Am. App., vol. i, p. 290; vol. iii, p. 522.

2 Ibid., vol. i, p. 526.

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

4 Ibid., p. 361. 5 Ibid., p. 562.