THE TREATY OF WASHINGTON

The year 1871 was marked by the conclusion of an important treaty between England and the United States.  Besides settling certain questions which threatened the friendly relations of the two countries, the treaty enunciated important principles of international law, and afforded the world a shining instance of peaceful arbitration as a substitute for the horrors of war.

Ever since 1863 the United States had been seeking satisfaction from Great Britain for the depredations committed by the Alabama and other Confederate cruisers sailing from English ports.  Negotiations were broken off in 1865 and again in 1868.  The next year Reverdy Johnson, American Minister to England, negotiated a treaty, but it was rejected by the Senate.  In January, 1871, the British Government proposed a joint commission for the settlement of questions connected with the Canadian fisheries.  Mr. Fish, our Secretary of State, replied that the settlement of the “Alabama Claims” would be “essential to the restoration of cordial and amicable relations between the two governments.”  England consented to submit this question also to the commission, and on February 27th five high commissioners from each country met at Washington.  The British delegation included cabinet officers, the minister to the United States, and an Oxford professor of international law.  The American commissioners were of equally high station, the Secretary of State, an associate justice of the Supreme Court, and our minister to England being of their number.

On May 8th the commission completed a treaty which was speedily ratified by both governments.  It provided for arbitration upon the “Alabama Claims,” upon other claims by citizens of either country for damages during the Rebellion, upon the fisheries, and upon the northwest boundary of the United States.  Provisions were also made by it for the common use of the lakes, rivers, and canals along the Canadian border, and for the transit of merchandise free of duty, under certain conditions, across either country to and from certain ports.

The fisheries part of the treaty is discussed in the next chapter.  The question of the northwest boundary was referred to the decision of the German emperor, William I. The treaty of 1846 had left it doubtful whether the boundary line through the channel between Vancouver Island and the main-land should be so run as to include the island of San Juan, with its group, in the United States or in Canada.  The emperor’s decision, given in 1872, was in favor of the United States.

Three commissioners-one appointed by each government and a third appointed jointly-met in Washington, September 26, 1871, to pass judgment upon the war claims other than the “Alabama Claims.”  The American claims of this class, amounting to less than $1,000,000, were all rejected on the ground that the British Government was not proved responsible for the damages incurred.  British subjects put in claims for $96,000,000.  The commission allowed less than $2,000,000, which the United States Government promptly paid into the British treasury.

But far the most important and interesting part of the treaty was the provision for the settlement of the “Alabama Claims.”  England’s unfriendly attitude during the war and her subsequent refusal to submit the “claims” to arbitration, had stirred up much hard feeling throughout the United States.  The graceful expression, in the preamble to the treaty, of England’s regret for the ravages of the cruisers was therefore very gratifying.  More material satisfaction was to follow.  The treaty provided that the claims should be submitted to a tribunal of five persons-one appointed by each government and one each by the Emperor of Brazil, the President of Switzerland, and the King of Italy.

The tribunal met at Geneva, Switzerland, December 15, 1871.  Charles Francis Adams, our minister to England during the war, was the United States member, and Lord Chief Justice Cockburn the English.  Baron Itajuba, the Brazilian minister plenipotentiary to France, Count Sclopis, an Italian minister of State, and M. Jaques Staempfli, of Switzerland, comprised the rest of the tribunal.  Each side was represented by counsel, Caleb Cushing, William M. Evarts, and Morrison R. Waite appearing for the United States.  An agent presented the printed case of each government.

The American claims included direct and indirect losses-direct, by the destruction of vessels with their cargoes and by national expenditure in chasing the Confederate cruisers; indirect, by the loss of a large part of the United States ocean carrying trade, by increased marine insurance rates, and by the prolongation of the war with proportionally increased expense.  Great Britain vehemently objected to the indirect claims coming before the tribunal, and at one time seemed about to withdraw.  Upon reassembling in June, 1872, the tribunal decided that the indirect claims were not admissible, and the case went forward.  Counsel having presented their respective arguments, the tribunal took up the case of each cruiser separately.  During the consideration of damages it sat with closed doors, only the arbitrators being present.  On September 14th, after thirty-two conferences, the tribunal gave its decision.

The Geneva case is of two-fold interest, first, for its decision of the facts involved, and the consequent award; second, for its enunciation of important principles of international law.

The Treaty of Washington laid down three rules for the guidance of the tribunal.  They are such important contributions to international law that they must be quoted in full.

“A neutral government is bound,

“First:  To use due diligence to prevent the fitting out, arming or equipping, within its jurisdiction, of any vessel which it has reasonable ground 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 and waters, and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.”

Great Britain denied, in the text of the treaty, that these rules were a true statement of the principles of international law in force during the Rebellion, but consented that the “Alabama Claims” should be decided in accordance with them.  Both countries also agreed to abide by them in future and to invite other maritime powers to do the same.

Questions being raised by the counsel as to the interpretation of certain terms and the scope of certain provisions in the three rules, the tribunal found it necessary to make the following preliminary decisions: 

1.  The meaning of “due diligence.”  The tribunal took the ground that what constitutes “due diligence” varies with the circumstances of the case.  The greater the probable damage to either belligerent, the greater must be the care taken by the neutral government to prevent the escape of cruisers from its ports.

2.  Should a neutral detain an escaped cruiser when it re-enters the neutral’s jurisdiction, the cruiser having in the meantime been regularly commissioned by its government?  The arbitrators decided that the neutral had a right to detain such a cruiser, in spite of its commission, but was under no positive obligation to do so.

3.  Does a neutral’s responsibility end with the enforcement of its local laws to prevent the escape of cruisers, even if those laws are inadequate?  Decision was given that the case must be determined by international law and not by national legislation.  If a country’s regulations for carrying out its acknowledged international duties are ineffective, they ought to be changed.

These decisions in international law, coming from so exalted a source, were of world-wide significance.  The verdict on the facts in the case had, however, more immediate interest for the two contestants.

The American case claimed damages for losses inflicted by fourteen cruisers and four tenders.  The award allowed for only the Alabama with her tender, the Florida with her three tenders, and the Shenandoah during a part of her career.  With regard to the Alabama the culpability of the British Government was so clearly shown that even the English arbitrator voted in favor of the American claim.  The Florida was permitted to escape from Liverpool although Mr. Adams, the United States minister, repeatedly called the attention of the authorities to her notorious warlike character.  The vessel was, furthermore, libelled at Nassau, a British colonial port, but the British officials allowed her to take in supplies and put to sea.  The Shenandoah set sail from Liverpool with the connivance of the Government, received her armament at the Madeira Islands, and after a destructive career was welcomed at the British port of Melbourne, repaired in a government slip, and furnished with supplies and recruits.  The award held Great Britain responsible only for her career after leaving Melbourne.

The American case further claimed damages for national expense in chasing the cruisers, and for the prospective earnings of the lost merchantmen, but these claims, along with those explicitly denounced as indirect, were rejected.

The tribunal awarded $15,500,000 damages in gold for the vessels and cargoes destroyed by the three cruisers and their tenders.  Of this sum, about $2,000,000 was interest at six per cent.  The only dissenting voice was that of the British member, who submitted a long and able, but somewhat spiteful, minority report.

The award naturally gave great satisfaction in the United States.  The money compensation was in itself a source of considerable gratulation; but the fact that stiff-backed England had by a clearly impartial tribunal of the highest character been declared in the wrong was not the least pleasurable side of the result.  American citizens should never forget the services, in this delicate and difficult matter, of Mr. Adams.  By his great knowledge of law, his careful gathering of evidence, and his brave, sturdy and incessant, though apparently useless, remonstrances with the British authorities while the cruisers were building and their depredations going on, he established a case which could not be gainsaid.  Hardly had he opened his portfolio at Geneva when the learned arbitrators saw that his suit must be allowed.

England promptly handed over to the United States the price of her sympathy with rebellion and slavery.  The course of Congress in dealing with the award was not very creditable.  For four years the money lay in the treasury vaults, piling up interest at five per cent. until it amounted to $20,000,000.  A Court of Alabama Claims was then convened, where private claimants might press their suits.  Insurance companies which could show that their losses on vessels destroyed by the cruisers exceeded the premiums received, were entitled to be paid the difference, with interest at four per cent.