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Article 1.—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 generally 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, under whatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by those vessels; 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 aforesaid vessels, and generally 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 manner, that is to say:—The first shall be named by the President of the United States, one shall be named by Her Britannic Majesty, His Majesty the King of Italy shall be requested to name one, the President of the Swiss Confederation shall be requested to name one, and His Majesty the Emperor of Brazil shall be requested to name one.
The procedure to be followed by the arbitrators as well as the extent of their powers are minutely detailed in articles 1, 2, 3, 4 and 5. We find that the majority is empowered to decide,—the Treaty thus offering a new affirmation of the doctrine defended by Fiore and other publicists and invoked in the Revue Critique with regard to the Provincial Arbitration,—that in international arbitration the parties must establish by their compromise the mode of procedure and the limit of the powers granted to the arbitrators.
Articles 6 and 7 are as follows:
Article 6.—In decidiug the matters submitted to the arbitrators, they shall be governed by the following three rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith, as the arbitrators shall determine to have been applicable to the case.
Rules.—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 vessels 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.
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 1 arose, but that Her Britannic 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 these claims, the arbitrators should assume that her Majesty's Government had undertaken to act upon the prfnciples set forth in these rules, and the high contracting parties agree to observe these rules between themselves in future, and to bring them to the knowledge of other Maritime Powers, and to invite them to accede to them.
Art. 7.—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, by any act or omission, failed to fulfil 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 fulfil 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. The award shall be in duplicate, one copy whereof shall be delivered to the agent of the United States for his Government, and the other copy shall be delivered to the agent of Great Britain for his Government.
All that precedes, relates only to the claims of the United States Government; claims made by citizens of the United States (exclusive of such as spring out of the depredations of the vessels mentioned in the 1st article), or by subjects of Her Majesty for causes arising out of the civil war, are provided for by article 12.
"Art. 12. The high contracting parties agree that all claims on the part of corporations, companies, or private individuals—citizens of the United States—upon the Government of Her Britannic Majesty, arising out of acts committed against the persons 6r property of citizens of the United States during the period between the 13th of April, 1861, and the 9th of April, 1865, inclusive (not being claims growing out of the acts of the vessels referred to in Article 1 of this treaty), and all claims with the like exception on the part of corporations, companies, or private individuals, subjects of Her Britannic Majesty upon the Government of the United States, arising out of acts committed against the persons or property of subjects of Her Britannic Majesty during the same period, which may have been presented to either Government for its interposition with the other, and which yet remain unsettled, as well as any other such claims which may be presented within the time specified in Article 14 of this treaty, shall be referred to three Commissioners, to be appointed in the following manner: that is to say, one Commissioner shall be named by the President of the United States, one by Her Britannic Majesty, and a third by the President of the United States and Her Britannic Majesty conjointly; and in case the third Commissioner shall not have been so named within a period of three months from the date of the exchange of the ratifications of this treaty, then the third Commissioner shall be named by the representative at Washington of His Majesty the King of Spain."
We may observe, en passant, that the private claims specially indicated in the Clarendon-Johnson Treaty as having been preferred since the Treaty of 1853 are not even alluded to in the Treaty.
Articles 8, 9, 10 and 11, as well as the whole of Articles 13,14, 16 and 17, have reference only to the procedure and are of no special interest.
We must nevertheless remark that no rules of law are laid down for the guidance of the arbitrators, as in the case of the Alabama claims. They are instructed to "investigate and decide such claims in such order and in such manner as they may think proper," upon such proof or information as may be furnished them by or on behalf of the respective Governments (Art. 13). Thus they are amiables compositeurs rather than arbitrators.
Such are the provisions of the Treaty respecting the divers claims arising out of the American Civil War. They take effect from the day of exchange of ratifications at Washington or at London within six months after the date of the Treaty (8th May ?oi. I. $ No. 3. 1871). As this part of the Treaty makes no cession of territory or sovereignty, the consent of the British parliament is not required.*
To what conclusion should we come as to the value of this settlement of the Alabama claims? The English press has greatly extolled the arrangement as highly honourable; the American press is entirely satisfied with it; in Canada public opinion has pronounced with scarcely a dissenting voice that the interests of the Dominion have been sacrificed in order to obtain its execution. If by the word honourable it be meant that the Treaty is just and agreeable to the principles of international law, the Treaty may be admitted to be an honourable one. But if it means that the pretensions of Great Britain have been maintained the Treaty is as clearly a dishonourable one.
Bluutschli says of the apology demanded for these depredations of the Southern privateers: "A formal avowal of culpability, however praiseworthy a step when viewed from the standpoint of justice and morality, is inevitably felt by the nation in fault as an act of degrading weakness. This consideration alone suffices to prevent its being exacted from a great power."
The American Commissioners have not hesitated to demand this apology, which they have after some delay, succeeded in obtaining. The expression "in a friendly spirit of the regret felt by Her Majesty's Government for the escape under whatever circumstances of the Alabama and other vessels from British ports," will have the whole force of an apology, if the arbitration tribunal decides, (as there can be no doubt it will seeing that Great Britain has abandoned her legal pretensions,) that Great Britain has violated the rules of international law, and holds her responsible for the escape of the privateers.
In the second place, the American Commissioners have succeeded in wresting from the British Commissioners the recognition of the three rules of neutrality contained in article 6 as making in future a portion of public international law.
On this point again, Great Britain abandons all her arguments and principles. Until now she had constantly replied to the demands of the United States that her good faith protected her from the consequences of her acts. The Treaty, far from admitting that doctrine, has sanctioned the opposite one, which is but
♦ Forsyth Const. Law, pp. 182-187.
an application of the principle of the Roman Law that every one capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, omission, imprudence, neglect or want of skill.
It is true that Great Britain declares in the Treaty itself that she 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 1 arose. What! these rules, which are based upon sound reason and not upon usage did not exist at the time of the escape of the Alabama and other cruisers! Is it because Great Britain has understood her duties only as defined by her own municipal laws? Clearly not. Her responsibility arises from international law and not from her own statutes and it is measured by the law of nations. Those statutes are • only means to assist the State in fulfilling its international duties and cannot set any limit to these duties. The three rules acknowledged by the Treaty form an integral part of international law, not because the high contracting parties have been pleased to promulgate or proclaim them, but because they are founded on natural law. From the first, the United States maintained them both by the decisions of their Courts and by their diplomatic correspondence, and for centuries past jurists of the highest authority have proclaimed them as rules of international law. They are immutable and eternal truths; and to say that they were not in force in 1861 and down to the end of the American Civil War, is to admit in a disguised way that they were unknown to the English Crown law officers; it is to make a new mistake in disregarding the fact that international law everywhere is and always has been the same. A formal declaration that, at the time above referred to, the duties of neutrality were not understood in the manner laid down in the three rules in question would have been more exact and to the point. And finally, the consent given by Great Britain to the proposal that these three rules should be applied to all claims submitted to arbitration is a further proof of want of that frankness so honourable in every one, but especially so in a great nation.
Let us even suppose that these rules did not exist at the time of the escape of the Alabama. In proposing to give to the three rales a retroactive effect the English Commissioners are endeavour ing to introduce into the law of nations an immoral principle of the most dangerous tendency. Dwarris, speaking of the retro