their cargoes and in the heavy national expenditures in the pursuit of the crnisers and (2) indirect injury in the transfer of a large part of the American commercial marin 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 # the rebellion; and also showed (3) that Great Britain, by reason of failure in the prop er observance of her duties as a neutral, had become justly liable for the acts of the cruisers and of their tenders; that the claims for the loss and destruction of private property which had thus far been presented amounted to about $14,000,000, without interest, which amount was liable to be greatly increased by claims which had not been presented; that the cost to which the Government had been put in the pursuite cruisers could easily be ascertained by certificates of Government accounting officers: that, in the hope of an amicable settlement, no estimate was made of the indirect loss, without prejudice, however, to the right to indemnification on their account in the event of no such settlement being made.

"The American Commissioners further stated that they hoped that the British Commissioners would be able to place upon record an expression of regret by Her Majesty's Government for the depredations committed by the vessels whose acts were now under discussion. They also proposed that the Joint High Commission should agree upon a sum which should be paid by Great Britain to the United States, in satisfaction of all the claims, and the interest thereon."

The British Commissioners abstained "from replying in detail to the statement of the American Commissioners, in the hope that the necessity for entering upon a lengthened controversy might be obviated by the adoption of so fair a mode of settle ment as that which they were instructed to propose; and they had now to repeat, on behalf of their Government, the offer of arbitration.

"The American Commissioners expressed their regret at this decision of the British Commissioners, and said further that they could not consent to submit the question of the liability of Her Majesty's Government to arbitration, unless the principles which should govern the Arbitrator in the consideration of the facts could be first agreed upon."

These principles were subsequently discussed and agreed upon, and incorporated in the Draft of the VIth Article of the Treaty.

On the 6th of May, the Commissioners met for their final conference, and Lord de Gray said that "it had been most gratifying to the British Commissioners to be associated with colleagues who were animated with the same sincere desire as themselves to bring about a settlement equally honorable and just to both countries."

Mr. Fish replied, that " from the first Conference the American Commissioners had been impressed by the earnestness of desire manifested by the British Commissioners to reach a settlement worthy of the two Powers. His colleagues and he could never cease to appreciate the generous spirit and the open and friendly manner in which the British Commissioners had met and discussed the several questions that had led to the conclusion of the Treaty, which it was hoped would receive the approval of the people of both countries, and would prove the foundation of a cordial and friendly understanding between them for all time to come."

Two days afterward the Treaty was signed with the following Preamble:

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"Her Britannic Majesty and the United States of America, being desirous to provide for an amicable settlement of all causes of difference between the two countries, have, for that purpose, appointed their respective Plenipotentiaries. And the said Plenipotentiaries, after having exchanged their full powers, which were found to be in due and proper form, have agreed to and concluded the following Articles."

In the view of Her Majesty's Government the statement made by the American Commissioners on the 8th of March contained a waiver of the claims for indirect losses contingent on an "amicable settlement" being arrived at; and this waiver consisted of two parts:

First, the affirmative statement that "in the hope of an amicable settlement no estimate was made of the indirect losses." The words "in the hope of an amicable settlement" are in themselves grammatically general, and, unless qualified by a subsequent limitation, mean, in the hope of any such settlement as the parties shall acknowledge to fall under the phrase "amicable settlement." Now, this part of the waiver, being a declaration in which the other party had an interest, and, so far, of the nature of the promise, could only be so limited by an express specification following it immediately, or at least before the other party had taken any step in reliance on its general character. But no such specification was made; nor does any specification at all as to the particular form of settlement appear in the Protocol. The phrase consequently retains the general character above described as its literal and grammatical meaning.

It might be said that the concluding words of the phrase "no estimate was made of the indirect losses "-had a special regard to the form of amicable settlement thereafter proposed by the American Commissioners, viz, the payment of a gross sum. This, however, can only be maintained subject to the qualification that, if the estimate of indirect losses was withheld in the hope that that proposal would be accepted, and if the view of the American Commissioners was that the acceptance of that proposal alone

would constitute the "amicable settlement," in consideration of which the estimate of indirect losses was withheld, then the next step for them, when the proposal was declined, was to present that estimate; or, if not, then in some other specific manner to keep alive the claim. But they did neither; they did not intimate or give notice to the British Commissioners that their hope of an "amicable settlement" had been frustrated or disappointed, nor did they say anything to the effect of making this first portion of the waiver dependent on the rejected proposal. And thus the phrase "an amicable settlement" is left to stand in its original and grammatical generality. The second part of the waiver is as follows:

"Without prejudice, however, to the right of indemnification on their account [i. e., on account of indirect losses] in the event of no such settlement being made." Its precise bearing obviously depends upon the meaning of the words "no such settlement."

Now the word "such" grammatically qualifies the word "settlement" by referring to the antecedent expression " amicable settlement." "Such," therefore, means "amicable;" and the right reserved by the American Commissioners is grammatically a right to revive the question of indirect losses in the event of no amicable settlement being made, and is nothing more.

It is to be observed that at this time no proposal whatever had been made for payment of a gross sum, or for any particular form or mode of settlement.

The only remaining question is whether the Treaty was itself "an amicable settlement," or, which is the same thing for the purposes of the argument, was in ordine toward an amicable settlement, and a step on the road to it.

This question is answered by the preamble of the Treaty, which declares that the President of the United States had (as well as Her Majesty) given his Commissioners certain powers "in order to provide for an amicable settlement" of certain differences, in which the "Alabama claims" were included; that these powers had been compared and verified; and that in virtue of them the Commissioners had agreed upon the Articles of the Treaty which are then set forth in order. The "amicable settlement" is here distinctly recognized not as a particular solution of the pending questions which had been proposed and set aside, but as an object of negotiation which had been provided for in a manner satisfactory to both parties, and the provision for which was embodied in the Treaty. The reservation, therefore, made by the American Commissioners had not come into play; the waiver remained in full force; and the indirect losses were excluded by the preamble of the Treaty from the scope of the arbitration.

PART II.

On the construction of the Treaty of Washington.

Upon the construction of the Treaty of Washington, apart from the Protocols, there appear to be three questions:

First. What claims are described by the words," the claims generically known as the 'Alabama Claims?'"

Second. What yessels are described by the words, "the several vessels, which have given rise to the claims generically known as the 'Alabama Claims?""

Third. What claims are described by the words, "all the said claims, growing out of acts committed by the aforesaid vessels, and generically known as the Alabama Claims ??? (being the words in which the subject-matter of the reference to arbitration agreed upon is defined.)

Each of these questions will be examined separately.

1. What claims are described by the words, "the claims generically known as the 'Alabama Claims?:"

The word "known" signifies that this collective expression had acquired a definite sense, supposed to be mutually understood, from its use in previous communications, between the same parties.

The word "generically" naturally signifies that all the claims intended were ejusdem generis.

The word "claims" itself naturally signifies demands actually presented or notified, either with or without a full specification of particulars.

The diplomatic correspondence, which preceded the negotiation, must therefore be referred to, to discover, first, what demands had been presented, or notified; and secondly, what had been the previous use of the phrase "the Alabama Claims?"" The earliest intimation of any claims against this country was in the letter of Mr. Adams to Lord Russell, of 20th November, 1862; which spoke "of the depredations committed on the high seas upon merchant-vessels " by the "Alabama," and of “the right of reclamation of the Government of the United States for the grievous damage

done to the property of their citizens," by reason of the escape of that vessel from British jurisdiction; and which referred, in support of that alleged right, to the treaty of 1794 between Great Britain and the United States, by which (as Mr. Adams inac curately represented) "all cases of damage previously done by capture of British vessels or merchandise, by vessels originally fitted out in the ports of the United States," were agreed to be referred to a commission, to award "the necessary sums for full compensation." He added, that he had received directions from his Government "to solicit redress for the national and private injuries already thus sustained."

For

On the 19th February, 1863; 29th April, 1863; 7th July, 1863; 24th August, 1963: 19th September, 1863, and 23d October, 1863, Mr. Adams presented to Lord Russell a series of definite claims made against the Government of this country by partienlar American citizens, in respect of ships and property belonging to them, said to have been destroyed by the “Alabama,” intimating, in his letter of the 23d October, that his Government "must continue to insist that Great Britain has made itself responsible for the damages which the peaceful, law-abiding citizens of the United States sustain by the depredations of the vessel called the Alabama." He added, (in an important passage containing the first suggestion of arbitration as a mode of thereafter solving the ques tion,) "In repeating this conclusion, however, it is not to be understood that the United States incline to act dogmatically or in a spirit of litigation. They fully comprehend how unavoidably reciprocal grievances must spring up from the divergence of the policy of the two countries in regard to the present insurrection. these reasons I am instructed to say that they frankly confess themselves unwilling to regard the present hour as the most favorable to a calm and candid examination by either party of the facts or the principles involved in cases like the one now in question. Though indulging a firm conviction of the correctness of their position in regard to this and other claims, they declare themselves disposed at all times hereafter, as well as now, to consider in the fullest manner all the evidence and the arguments which Her Majesty's Government may incline to proffer in refutation of it; and, in case of an impossibility to arrive at any common conclusion, I am directed to say there is no fair and equitable form of conventional arbitrament or reference to which they will not be willing to submit. Entertaining these views, I crave permission to apprise your Lordship that I have received directions to continue to present to your notice claims of the character heretofore advanced, whenever they arise, aud to furnish the evidence on which they rest, as is customary in such cases, in order to guard against possible ultimate failure of justice from the absence of it."

In a later letter, of 31st October, 1863, Mr. Adams (while presenting other similar demands in respect of property destroyed by the "Florida ") spoke of "the claims grow ing out of the depredations of the 'Alabama' and other vessels issuing from British ports.” On the 20th January, 1864, he presented another similar claim by the owners of the "Sea Bride," captured by the "Alabama." And at later dates the particulars were transmitted by him of certain claims made by persous whose property was alleged to have been destroyed by the "Shenandoah.”

On the 7th April, 1865, (when the war was considered by him as actually or virtually at an end,) Mr. Adams transmitted to Lord Russell certain reports of "depredations committed upon the commerce of the United States" by the "Shenandoah," and added. "Were there any reason to believe that the operations carried on in the ports of Her Majesty's Kingdom and its dependencies to maintain and extend this systematic dep redation upon the commerce of a friendly people had been materially relaxed or prevented, I should not be under the painful necessity of announcing to your Lordship the fact that my Government cannot avoid entailing upon the Government of Great Britain the responsibility for this damage," and he proceeded to speak of "the injury that might yet be impending from the part which the British steamer 'City of Richmond' had had in being suffered to transport with impunity from the port of London men and supplies, to place them on board of the French-built steam-ram 'Olinthe,' alias 'Stoerkodder, alias 'Stonewall,' which had, through a continuously fraudulent process, succeeded in deluding several Governments of Europe, and in escaping from this hemisphere on its errand of mischief to the other." He then went on to complain that, by reason of a series of acts, (the furnishing of "vessels, armaments, supplies, and men,") which he contended to be almost wholly attributable to Great Britain, or to British citizens, the entire maritime commerce of the United States was in course of being transferred, and had already, to a great extent, passed over to Great Britain, whose recognition of the belligerent character of the insurgents he alleged to be the main and original source of all this mischief; adding, "In view of all these circumstances, I am instructed whilst insisting on the protest heretofore solemnly entered against that proceeding (i. e., the recognition of Southern belligerency,) "further respectfully to represent to your Lordship that, in the opinion of my Government, the grounds on which Her Majesty's Government have rested their defense against the responsibility incurred in the manner herein before stated, for the evils that have followed, however strong they might have hitherto been considered, have now failed, by a practical reduction of all the ports heretofore temporarily held by the insurgents."

It is to be observed that, although the general injury to the commerce of the United States is largely referred to in this letter, Mr. Adams advances no new claim for compensation, on that or any other account, (except for captures made by the "Shenandoah,") against Her Majesty's Government; he even intimates that the particular claim for the captures by the "Shenandoah" would not then have been made, if his Government could have felt assured that no further operations of the like nature would take place.

This letter led to a prolonged controversial argument, in the course of which (on the 4th May, 1865) Lord Russell observed that he could "never admit that the duties of Great Britain toward the United States were to be measured by the losses which the trade and commerce of the United States might have sustained," and said, "The question, then, really comes to this: Is Her Majesty's Government to assume or be liable to a responsibility for conduct which Her Majesty's Government did all in their power to prevent and to punish? A responsibility which Mr. Adams, on the part of the United States Government, in the case of Portugal, positively, firmly, and justly declined. Have you considered to what this responsibility would amount? Great Britain would become thereby answerable for every ship that may have left a British port and have been found afterwards used by the Confederates as a ship of war; nay, more, for every cannon and every musket used by the Confederates on board any ship of war, if manufactured in a British workshop." To which Mr. Adams replied (20th May, 1865) by a "recapitulation" of nine points, which he said he had desired to embody in his previous arguments. These points (beginning with the recognition of Southern belligerency on the high seas, and alleging this belligerency to have been in fact created, after the recognition, by means derived from Great Britain) mentioned, under the 7th head, "the burning and destroying on the ocean a large number of merchantvessels and a very large amount of property belonging to the people of the United States." The 8th and 9th heads were thus worded:

"8. That, in addition to this direct injury, the action of these British built, manned, and armed vessels has had the indirect effect of driving from the sea a large portion of the commercial marine of the United States, and, to a corresponding extent, enlarging that of Great Britain, thus enabling one portion of the British people to derive an unjust advantage from the wrong committed on a friendly nation by another portion. "9. That the injuries thus received by a country which has, meanwhile, sedulously endeavored to perform all its obligations, owing to the imperfection of the legal means at hand to prevent them, as well as the unwillingness to seek for more stringent powers, are of so grave a nature as in reason and justice to constitute a valid claim for reparation and indemnification." Later on, in the same letter, Mr. Adams also said: "Your Lordship is pleased to observe that you 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 may have sustained. To which I would ask permission to reply, that no such rule was ever desired. The true standard for the measurement would seem to be framed on the basis of the clear obligations themselves, and the losses that spring from the imperfect performance of them;" and "thus it is that, whatever may be the line of argument I pursue, I am compelled ever to return to the one conclusion: the nation that recognized a Power as a belligerent before it had built a vessel, and became itself the sole source of all the belligerent character it has ever possessed on the ocean, must be regarded as responsible for all the damage that has ensued from that cause to the commerce of a Power with which it was under the most sacred of obligations to preserve amity and peace." It will be seen that, although the general propositions of this letter might be wide enough to include the largest imaginable demands, it nevertheless abstains from putting forward any new claim in a definite or tangible form; and purports rather to recapitulate and adhere to the tenor of the preceding correspondence. And in this sense it was, evidently, understood by Lord Russell, who, in his answer of 30th August, 1865, referred to the suggestion of an arbitration contained in Mr. Adams's former letter of the 23d of October, 1863; and, while declining "either to make reparation and compensation for the captures made by the Alabama, or to refer the question to any foreign State," offered a reference to a Commission of "all claims arising during the late civil war," which the two Powers should agree to refer to the Commissioners. And again, on the 14th October, he repeated: "There are, I conceive, many claims upon which the two Powers would agree that they were fair subjects of investigation before Commissioners. But I think you must perceive that if the United States Government were to propose to refer claims arising out of the captures made by the 'Alabama' and 'Shenandoah' to the Commissioners, the answer of Her Majesty's Government must be in consistency with the whole argument I have maintained, in conformity with the views entertained by your Government in former times. I should be obliged, in answer to such a proposal, to say: For any acts of Her Majesty's subjects committed out of their jurisdiction and beyond their control, the Government of Her Majesty are not responsible," &c. On the 21st of October Mr. Adams addressed a long letter, with numerous inclosures, to Lord Russell, with reference to the "Shenandoah," alleging that vessel to have been received by the authorities at Melbourne with knowledge of an illegal equipment in

this country; and insisting that, on that account, Her Majesty's Government assumed a responsibility for all the damage which it had done, and which, down to the latest accounts, it was still doing, to the peaceful commerce of the United States on the ocean." A particular claim by the owners of a ship captured by the "Shenandoah" was presented with this letter.

In his letter to Lord Clarendon of the 21st November, 1865, Mr. Adams, under the instructions of his Government, declined Lord Russell's proposal for a limited reference to Commissioners of such claims as the two Governments could agree upon. "Adhering," he says, 66 'as my Government does to the opinion that the claims it has presented, which His Lordship has thought fit at the outset to exclude from consideration, are just and reasonable, I am instructed to say that it sees now no occasion for further delay in giv. ing a full answer to His Lordship's propositions."

The whole result of this correspondence, down to the change of Administration in this country in 1866, may be thus summed up:

1. That notwithstanding continual complaints, extending over a vast range of subjects, from the recognition of the belligerency of the Southern States downwards, no 'claims" against this country were ever defined, formulated, or presented on the part of the United States, except for the specific losses of American citizens arising from the capture of their vessels and property by the "Alabama," "Florida," and "Shenandoah:" and (2) that no such form of expression as "the Alabama claims" had ever, down to this time been used to describe even the claims in respect of those captures, much less to comprehend any more vague and indefinite demands of indemnity to the general mercantile or national interests of the United States.

On the accession of Lord Derby to power, Mr. Seward in a dispatch to Mr. Adams, dated the 27th August, 1866, thus defined the "claims" which it had been the object of the United States to press in the preceding correspondence, and of which he now again instructed Mr. Adams to urge the settlement: "You will herewith receive a summary of claims of citizens of the United States against Great Britain for damages which were suffered by them during the period of our late civil war and some months thereafter, by means of depredations upon our commercial marine, committed on the high seas by the 'Sumter,' the 'Alabama,' the Florida,' the ‘Shenandoah,' and other ships of war, which were built, manned, armed, equipped, and fitted out in British ports, and dispatched therefrom by or through the agency of British subjects, and which were harbored, sheltered, provided, and furnished, as occasion required, during their devastating career, in ports of the realm, or in ports of British Colonies in nearly all parts of the globe. The table is not supposed to be complete, but it presents such a recapitulation of the claims as the evidence so far received in this Department enables me to furnish. Deficiencies will be supplied hereafter. Most of the claims have been from time to time brought by yourself, as the President directed, to the notice of Her Majesty's Government, and made the subject of earnest and continued appeal. That appeal was intermitted only when Her Majesty's Government, after elaborate discussions, refused either to allow the claims or to refer them to a Joint Claims Commission, or to submit the question of liability therein to any form of arbitration. The United States, on the other hand, have all the time insisted upon the claims as just and valid. This attitude has been, and doubtlessly continues to be, well understood by Her Majesty's Government. The considerations which inclined this Government to suspend for a time the pressure of the claims upon the attention of Great Britain, are these: The political excitement in Great Britain, which arose during the progress of the war, and which did not immediately subside at its conclusion, seemed to render that period somewhat unfavorable to a deliberate examination of the very grave questions which the claims involve, &c. The principles upon which the claims are asserted hy the United States have been explained by yourself in an elaborate correspondence with Earl Russell and Lord Clarendon. In this respect, there seems to be no deficiency to be supplied by this Department. It is the President's desire that you now call the attention of Lord Stanley to the claims in a respectful but earnest manner, and inform him that, in the President's judgment, a settlement of them has become urgently necessary to a re-establishment of entirely friendly relations between the United States and Great Britain. This Government, while it thus insists upon these particular claims, is neither desirous nor willing to assume an attitude unkind or unconciliatory toward Great Britain. If, on her part, there are claims either of a commercial character, or of boundary, or of commercial or judicial regulation, which Her Majesty's Government esteem important to bring under examination at the present time, the United States would, in such case, be not unwilling to take them into consideration in connection with the claims which are now presented on their part, and with a view to remove at one time, and by one comprehensive settlement, all existing causes of misunderstanding."

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Mr. Seward proceeded to recommend, in support of these claims, the use of the same general arguments, (including prominently the alleged effect of the recognition of Southern belligerency, and the general injury to the national commerce of the United States,) which had been previously so often employed Mr. Adams. He added: The claims upon which we insist are of large amount. They affect the interest of many thousand