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Alabama Arbitration

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"ALABAMA" ARBITRATION. - This is one of those arbitrations on pecuniary claims, made by one state, on behalf of its subjects, against another state, which are referred to in the article [[International arbitration. The case is important, both from a historical and a juridical point of view, and affords a conspicuous example of the value of arbitration as a means of averting war. The facts are as follows: In 1861 the Southern States of North America seceded from the rest on the slavery question and set up a separate government under President Jefferson Davis. Hostilities began with the capture of Fort Sumter by the Confederates on the 13th of April 1861. On the 19th of April President Abraham Lincoln declared a blockade of the southern ports. On the 14th of May the British government issued a proclamation of neutrality, by which the Confederates were recognized as belligerents. This example was followed shortly afterwards by France and other nations. The blockade of the southern ports was not at first effective, and blockade-running soon became an active industry. The Confederates established agencies in England for the purchase of arms, which they despatched in ordinary merchant vessels to the Bahamas, whence they were transhipped into fast steamers especially constructed for the purpose.

In June 1862 the vessel, the "Alabama," originally known as "No. 290," was being built by Messrs. Laird at Birkenhead. She was then nearly completed and was obviously intended for a man-of-war. On the 23rd of June Mr C. F. Adams forwarded to Earl Russell a letter from the United States consul at Liverpool giving certain particulars as to her character. This letter was laid before the law officers, who advised that, if these particulars were correct, the vessel ought to be detained. On the 21st of July sworn evidence, which was supplemented on the 23rd of July, was obtained and laid before the commissioners of customs (who were the proper authorities to enforce the provisions of the Foreign Enlistment Act of 1819), but they declined to move. On the 23rd of July the same evidence was laid before the law officers, who advised that there was sufficient ground for detention. By some accident, which has never been satisfactorily explained, but was probably connected with the severe illness of Sir John Harding, the queen's advocate, the papers were not returned till the 29th of July. Instructions were then issued to seize the vessel, but she had already sailed on the evening of the 28th. Although she remained for two days off the coast of Anglesey, there was no serious attempt at pursuit. She afterwards made her way to the Azores, where she received her armament, which was brought from Liverpool in two British ships. Captain Semmes there took command of her under a commission from the Confederate government. After a most destructive career she was sunk off Cherbourg by the "Kearsarge" on the 19th of June 1864.

On these facts the United States government alleged against Great Britain two grievances, or sets of grievances. The first was the recognition of the Southern States as belligerents and a general manifestation of unfriendliness in other ways. The second was in respect of breaches of neutrality in allowing the "Alabama," the "Florida" (originally the "Oreto"), the "Shenandoah" and other Confederate vessels to be built and equipped on British territory. Correspondence ensued extending over several years. At length in February 1871 a commission was appointed to sit at Washington in order, if possible, to arrive at some common understanding as to the mode in which the questions at issue might be settled. With respect to the "Alabama" claims the British commissioners suggested that they should be submitted to arbitration. The American commissioners refused "unless the principles which should govern the arbitrators in the consideration of the facts could be first agreed upon." After some discussion the British commissioners consented that the three following rules should apply. A neutral government is bound - (i) 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; (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 and waters, and as to all persons within its jurisdiction to prevent any violation of the foregoing obligation and duties. The arrangements made by the commission were embodied in the treaty of Washington, which was signed on the 8th of May 1871, and approved by the Senate on the 24th of May. Article 1, after expressing the regret felt by Her Majesty's government for the escape, in whatever circumstances, of the "Alabama" and other vessels from British ports, and for the depredations committed by these vessels, provided that "the claims growing out of the acts of the said vessels, and generically known as the ` Alabama ' claims" should be referred to a tribunal composed of five arbitrators, one to be named by each of the contracting parties and the remaining three by the king of Italy, the president of the Swiss Confederation and the emperor of Brazil respectively. By Article 2 all questions submitted were to be decided by a majority of the arbitrators, and each of the contracting parties was to name one person to attend as agent. Article 6 provided that the arbitrators should be governed by the three rules quoted above, and by such principles of international law not inconsistent therewith as the arbitrators should determine to be applicable to the case. By the same article the parties agreed to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers. Article 7 provided that the decision should be made within three months from the close of the argument, and gave power to the arbitrators to award a sum in gross in the event of Great Britain being adjudged to be in the wrong.

The treaty was, on the whole, welcomed in England. The United States appointed Mr C. F. Adams as arbitrator and Mr J. C. Bancroft Davis as agent. The British government appointed Sir Alexander Cockburn as arbitrator and Lord Tenterden as agent. The arbitrators appointed by the three neutral powers were Count Sclopis (Italy), M. Staempfli (Switzerland), Baron d'Itajuba (Brazil). The first meeting of the tribunal took place on the 15th of December 1871 in the Hotel de Ville, Geneva. As soon as the cases had been formally presented, the tribunal adjourned till the following June. There followed immediately a controversy which threatened the collapse of the arbitration. It was found that in the American case damages were claimed not only for the property destroyed by the Confederate cruisers, but in respect of certain other matters known as "indirect losses," viz. the transference of the American marine to the British flag, the enhanced payments of insurance, the expenses of pursuit and the prolongation of the war. But this was not all. The American case revived the charges of "insincere neutrality" and "veiled hostility" which had figured in the diplomatic correspondence, and had been repudiated by Great Britain. It dwelt at length upon such topics as the premature recognition of belligerency, the unfriendly utterances of British politicians and the material assistance afforded to the Confederates by British traders. The inclusion of the indirect losses and the other matters just referred to caused great excitement in England. That they were within the treaty was disputed, and it was argued that, if they were, the treaty should be amended or denounced. In October 1872 Lord Granville notified to General Schenck, the United States minister} that the British government did not consider that the indirect losses were within the submission, and in April the British counter-case was filed without prejudice to this contention. On the i 5th of June the tribunal reassembled and the American argument was filed. The British agent then applied for an adjournment of eight months, ostensibly in order that the two governments might conclude a supplemental convention, it having been meanwhile privately arranged between the arbitrators that an extra-judicial declaration should be obtained from the arbitrators on the subject of the direct claims. On the 19th of June Count Sclopis intimated on behalf of all his colleagues that, without intending to express any opinion upon the interpretation of the treaty, they had arrived at the conclusion that "the indirect claims did not constitute upon the principles of international law applicable to such cases a good foundation for an award or computation of damages between nations." In consequence of this intimation Mr Bancroft Davis informed the tribunal on the 25th of June that he was instructed not to press those claims; and accordingly on the 27th of June Lord Tenterden withdrew his application for an adjournment, and the arbitration was allowed to proceed. The discussion turned mainly on the question of the measure of "due diligence." The United States contended that it must be a diligence commensurate with the emergency or with the magnitude of the results of negligence. The British government maintained that while the measure of care which a government is bound to use in such cases must be dependent more or less upon circumstances, it would be unreasonable to require that it should exceed that which the governments of civilized states were accustomed to employ in matters concerning their own security or that of their citizens.

The tribunal adopted the view suggested by the United States. It found that Great Britain was legally responsible for all the depredations of the "Alabama" and "Florida" and for those committed by the "Shenandoah" after she left Melbourne. In the case of the "Alabama" the court was unanimous; in the case of the "Florida" Sir A. Cockburn alone, in that of the "Shenandoah" he and Baron d'Itajuba, dissented from the majority. In the cases of the other vessels the judgment was in favour of Great Britain. The tribunal decided to award a sum in gross, and (Sir A. Cockburn again dissenting) fixed the damages at $15,50o,000 in gold. On the 14th of September the award was formally published, and signed by all the arbitrators except Sir A. Cockburn, who filed a lengthy statement of his reasons.

The stipulation that the three rules should be jointly submitted by the two powers to foreign nations has never been carried out. For this the British government has been blamed by some. But the general view of continental publicists is, that the language of the rules was not sufficiently precise to admit of their being generally accepted as a canon of neutral obligations. (M. H. C.)