Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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GENEVA ARBITRATION

II.106.1

GENEVA ARBITRATION. The commissioners who negotiated the treaty of Washington, recorded in a protocol so much of the history of the negotiations which preceded it as they desired to preserve. They say that in the conference of March 8, 1872, the Americans made the following statement of the demand then and since known as the "Alabama claims". "That 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 and direct losses in the capture and destruction of a large number of vessels with their cargoes, and in the heavy national expenditures in 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 added "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." The British commissioners replied, "that the British government could not admit that Great Britain had failed to discharge toward the United States the duties imposed on her by the rules of international law, or that she was justly liable to make good to the United States the losses occasioned by the acts of the cruisers to which the American commissioners expressed their regret at this decision of the British commissioners." The parties then negotiated for the submission of the claims to arbitration, and concluded the treaty of Washington in part for that purpose. The first article of the treaty, after reciting that claims against Great Britain "exist, growing out of the acts committed by the several vessels which have given rise to the claims generically known as the Alabama claims," provides that "all the said claims growing out of the acts committed by the aforesaid vessels" shall be referred to a tribunal of arbitration. Thus tribunal assembled Dec. 15, 1871, in Geneva, in Switzerland. It consisted of the following arbitrators: Count Federigo Sclopis, of Salerano, named by the king of Italy; Baron Itajuba, named by the emperor of Brazil; Mr Jaques Staempfli, named by the president of Switzerland; Charles Francis Adams. Esq., appointed by the president of the United States, and lord chief justice Sir Alexander Cockburn, appointed by the queen of Great Britain. J. C. Bancroft Davis, Esq., represented the United States as their agent; Lord Tenterden represented Her Britannic Majesty in the same capacity. On motion of Mr. Adams, seconded by Sir Alexander Cockburn, Count Sclopis was made president, and Mr. Alexander Favrot, of Switzerland, was elected to be the secretary of the tribunal. In accordance with the terms of the treaty the agent of each government then presented printed volumes containing the "case" of his government, with accompanying proofs.

II.106.2

—The American agent laid claim for damages for injuries committed by thirteen vessels, viz.: the Sumter: the Florida, and her tenders, the Clarence, the Tacony and the Archer; the Alabama and her tender; the Tuscaloosa; the Retribution; the Georgia, the Tallahassee; the Chicamauga; and the Shenandoah. The British agent denied that the arbitration covered more than the acts of the Alabama, the Georgia, the Florida, and the Shenandoah. The tribunal took jurisdiction of all the vessels submitted by the American agent, and exculpated Great Britain from liability for the acts of any except the Florida and her tenders, the Alabama and her tenders, and the Shenandoah after leaving Melbourne. The American demands for damage were laid in the exact language of the protocol cited above, in which they were classified as "direct" and "indirect." On Feb. 3, 1872, Lord Granville informed the American minister in London, that "the British government held that it was not within the province of the tribunal of arbitration at Geneva to decide upon the claims for indirect losses and injuries put forward in the case of the United States."

II.106.3

—Pending the diplomatic discussion which followed, the two agents met at Geneva, April 15, to put in the counter cases of their respective governments, and while there discussed the mode of settling the difficulty in case it could not be settled diplomatically. Soon after the reassembling of the tribunal in June (no diplomatic adjustment being reached) the plan discussed by the agents in April was practically carried out. The tribunal, of its own accord, declared that without expressing an opinion on the political question which had arisen, they were individually and collectively of opinion that the "indirect claims" did not "constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages." This decision was accepted by both governments as a satisfactory disposition of the disputed matter—With the scope of the arbitration thus settled, the tribunal made the following disposition of the matters before it. The treaty laid down three rules for the guidance of the arbitrators, viz.: "That a neutral government is bound, 1, 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 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; 2, 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, 3, 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."

II.106.4

—The United States rested their demand on these propositions: that the British government, by the indiscreet haste with which the proclamation of neutrality (seeALABAMA CLAIMS) was issued, by the preconcerted action with France respecting the declarations of the congress of Paris, by refusing to amend the defective neutrality laws, by the delay in seizing a vessel which was evidently being fitted out at Liverpool and intended to carry on war with the United States, a country with which Great Britain was then at peace, and other unfriendly acts, and individual members of the government by open expressions of sympathy with the insurgents, had exhibited an unfriendly feeling which might affect their own course, and must have affected the action of their subordinates; that these facts proved an animus in the government and imbued with a character of culpable negligence many of the acts of its subordinates complained of for which a government might not otherwise be held responsible; and that Great Britain had always maintained a right to permit vessels like the Alabama to be constructed and equipped in her ports, so that in point of law she held that there was no obligation to exercise due diligence to prevent their departure.

II.106.5

—On these points the tribunal decided that "the due diligence referred to in the first and third of the said rules ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill neutrality on their part." "The circumstances out of which the facts constituting the subject matter of the present controversy arose were of a nature to call for the exercise on the part of Her Britannic Majesty's government of all possible solicitude for the observance of the rights and duties involved in the proclamation of neutrality."

II.106.6

—The American case also contended that the treaty required that when a vessel which had been especially adapted for war within a neutral port for the use of a belligerent in war comes again within the neutral's jurisdiction, the neutral should seize and detain it. The British papers contended that the obligations created by the treaty refer only to the duty of preventing the original departure of the vessel, and that the fact that it was, after the original departure from a neutral port, commissioned as a ship of war, protects it against detention. On this point the tribunal decided as follows: "The effects of a violation of neutrality, committed by means of the construction, equipment and armament of a vessel, are not done away with by any commission which the government of the belligerent power benefited by the violation of neutrality may afterward have granted to that vessel; and the ultimate step by which the offense is completed can not be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means of establishing his innocence. The privilege of exterritoriality, accorded to vessels of war, has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principles of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality."

II.106.7

—It was further contended in the American case that the insurgent cruisers had such advantages in British ports over the vessels of the United States in the storing and receiving of coal as made the ports bases of hostile operations against the United States. On this point the tribunal said: "In order to impart to any supplied of coal a character inconsistent with the second rule, prohibiting the use of neutral ports or waters as a base of naval operations for a belligerent, it is necessary that the said supplied should be connected with special circumstances of time, of persons, or of place, which may combine to give them such a character;" but Viscount d'Itajuba, while signing the award, recorded in the protocol his opinion that "every government is free to furnish to the belligerents more or less of that article."

II.106.8

—The American case also contended that Great Britain could not escape liability by reason of alleged deficiencies in internal legislation enacted for the purpose of enabling the government to fulfill its international duties. The tribunal held that "the government of Her Britannic Majesty can not justify itself for a failure in due diligence on the insufficiency of the legal means of action which it possessed."

II.106.9

—The American pleadings urged the importance of awarding a sum in gross, and thus closing the political question; and contended that interest should form a part of the sum so awarded, that the United States should be repaid for its outlays in pursuit of the cruisers, and that the sufferers should be compensated for the loss of prospective earnings. The tables of damages presented by the United States also presented claims for gross freights. The tribunal decided that no compensation should be made for the pursuit of the cruisers; that none should be made for prospective earnings, "as they depend in their nature on future and uncertain contingencies", that net freights only should be allowed; and that "it is just and reasonable to allow interest at a reasonable rate"; and "by a majority of four voices to one awarded to the United a sum of $15,500,000 in gold as the indemnity to be paid by Great Britain to the United States as the satisfaction of all the claims referred to the consideration of the tribunal." This award was signed by Count Sclopis, Viscount d'Itajuba, Mr. Staempfli and Mr. Adams, Sept. 14, 1872. Sir Alexander Cockburn refused to sign it, and filed a long dissenting opinion. The president then declared the tribunal to be dissolved.

J. C. BANCROFT DAVIS.

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