THE WASHINGTON TREATY AND THE GENEVA AWARD
The Treaty of Washington, creditable to all who engaged in
it, not to be judged by its details, but by its great effect
in securing peace to the world, saved Great Britain from a
war with us, in which it is not unlikely that the nations
of Europe who hated her would have come to take part on our
side. But it saved us from the greater danger of having the
war spirit renewed and intensified by this gigantic struggle,
from an international hatred which would not have cooled again
for a century; or, if we did not declare war, from taking
the ignoble attitude of a great and free people lying in wait
for an opportunity to revenge itself.
It was the purpose of that Treaty to remove every cause of
quarrel. One constant cause of quarrel, for many years,
had been the exercise of our right to fish on the shores
of Newfoundland. In the Treaty it was agreed that the United
States should have, in addition to her existing rights for
ten years, and for such further times as the parties should
agree, the right to take fish on the sea coast of the British
Provinces north of us, with permission to land for the purpose
of drying nets and curing fish, and that we were to pay for
the privilege a sum to be fixed by arbitrators. Two of these
arbitrators were to be appointed by the United States and
Great Britain; the other, who would serve as umpire, to be
agreed upon by the two powers, or, if not agreed upon within
a certain time, then to be appointed by the Emperor of Austria.
Great Britain insisted upon having the Belgian Minister to
the United States for the third arbitrator, and refused to
name or suggest or agree to any other person. So the time
expired. Thereupon the Belgian Minister, Mr. Delfosse, was
selected by the Emperor of Austria. Mr. Delfosse's own fortune
in public life depended upon his Sovereign's favor. We had
already notified Great Britain that, if the Belgian Minister
were selected, he would probably deem himself disqualified
by reason of the peculiar connection of his Government with
that of Great Britain. When the Treaty was negotiated, Earl
de Grey, Chairman of the Commissioners, said, speaking of
the Government to whom the matter might be referred: "I do
not name Belgium, because Great Britain has treaty arrangements
with that Government which might be supposed to incapacitate
it." Belgium, as was notorious, was dependent upon Great
Britain to maintain its political existence against the ambitions
of France and Germany. Mr. Delfosse's sovereign was the
son of the brother of Queen Victoria's mother and Prince Albert's
father, and was, himself, brother of Carlotta, wife of Maximilian,
whom we had lately compelled France to abandon to his fate.
The referee awarded that we should make a payment to Great
Britain for this fishery privilege of five million five hundred
thousand dollars. We never valued them at all. We abandoned
them at the end of ten years. It would have been much better
to leave the matter to Great Britain herself. If she had
been put upon honor she would not have made such an award.
No English Judge who valued his reputation would have suggested
such a thing, as it seemed to us.
I would rather the United States should occupy the position
of paying that award, after calling the attention of England
to its injustice and wrong, than to occupy the position of
England when she pocketed the money. A war with England would
have been a grievous thing to her workingmen who stood by
us in our hour of peril, and to all that class of Englishmen
whom we loved, and who loved us. Such a war would have been
a war between the only two great English-speaking nations
of the world, and the two nations whose policy, under methods
largely similar, though somewhat different, were determined
by the public opinion of their people.
If however our closer and friendlier relations with England
are to result in our adopting her social manners, her deference
to rank and wealth, and of adopting her ideas of empire and
the method of treating small and weak nations by great and
strong ones, it would be better that we had kept aloof, and
that the old jealousy and dislike engendered by two wars had
continued.
A very interesting question was settled during the Administration
of President Hayes as to the disposition of the $15,500,000
recovered from Great Britain by the award of the tribunal
of Geneva for the violation of the obligations of neutrality
during the Civil War. Great Britain, after what we had claimed
what was full notice of what was going on, permitted certain
war vessels to be constructed in England for the Confederate
Government. She permitted those vessels to leave her ports
and, by a preconcerted arrangement, to receive their armament,
also procured in Great Britain. She turned a deaf, an almost
contemptuous ear, to the remonstrances of Mr. Adams, our
Minister. The Foreign Office, after a while, informed him
that they did not wish to receive any more representations
on that subject. But, as the War went on and the naval and
military strength of the United States increased and became
more manifest, Great Britain became more careful. At last
some Rebel rams were built by the Lairds, ship-builders of
Liverpool. Mr. Adams procured what he deemed sufficient
evidence that they were intended for the Confederate service,
and made a demand on Lord Russell, the British Foreign Minister,
that they be detained. To this Lord Russell replied that
he had submitted the matter to the Law officers of her Majesty's
Government, and they could see no reason for interfering.
To this Mr. Adams instantly replied that he received the communication
with great regret, adding, "It would be superfluous in me
to point out to your Lordship that this is war." Lord Russell
hastily reconsidered his opinion, and ordered the rams to
be stopped.
He afterward, as appears in his biography by Spencer Walpole,
admitted his error in not interfering in the case of the vessels
that had gone out before. But the mischief was done. The
terror of these Confederate vessels had driven our commerce
from the sea, or had compelled our merchant vessels to sail
under foreign flags, and had enormously increased the rate
of insurance to those who kept the sea under our flag.
After the War had ended a demand for compensation was earnestly
pressed upon Great Britain. A demand was made to refer the
claims to arbitration, and a Treaty negotiated for that purpose
by Reverdy Johnson under Andrew Johnson's Administration,
was rejected by the Senate, on the ground, among other reasons,
that the element of chance entered into the result.
Thereafter, in General Grant's time, a Joint High Commission
to deal with this controversy was agreed upon between the
two countries, which sat in Washington, in 1871. The Commissioners
in behalf of the United States were Hamilton Fish, Secretary
of State; Robert C. Schenck, then our Minister to England;
Samuel Nelson, Judge of the Supreme Court; Ebenezer Rockwood
Hoar, lately Attorney-General, and George H. Williams, afterward
Attorney-General. On behalf of Great Britain there were Earl
de Grey and Ripon, afterward Marquis of Ripon; Sir Stafford
H. Northcote, afterward Earl of Idesleigh; Edward Thornton,
then the British Minister here; John A. MacDonald, Premier
of Canada, and Montague Bernard, Professor of International
Law at Oxford. The two countries could not, in all probability,
have furnished men more competent for such a purpose. They
agreed upon a treaty. The rules by which neutral governments
were to be held to be bound for the purposes of the arbitration
were agreed on beforehand in the Treaty itself. They agreed
to observe these rules between themselves in the future, and
to invite other maritime powers to accede to them. The Treaty
also contained a statement that Her Britannic Majesty had
"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." I am not
aware a like apology has ever been made by Great Britain during
her history, to any other country. There was a provision
also, for the reference of some other matters in dispute between
the two countries. One of these related to the fisheries--
a source of irritation between this country and the British
possessions north of us ever since the Revolution.
I will not undertake to tell that part of the story here.
It was agreed to submit the questions of the claims growing
out of the escape of the Rebel cruisers to a tribunal which
was to sit at Geneva. Of this, one member was to be appointed
by each of the parties, and the others by certain designated
foreign governments. Our Commissioner was Charles Francis
Adams, who had borne himself so wisely and patiently during
the period of the Civil War. The English Commissioner was
Sir Alexander Cockburn, Lord Chief Justice of England. The
United States was represented by Caleb Cushing, William M.
Evarts and Morrison R. Waite, afterward Chief Justice of
the United States, as counsel.
Adams rarely betrayed any deep emotion on any public occasion,
however momentous. But it must have been hard for him to
conceal the thrill of triumph, after the ignominy to which
he had submitted during that long and anxious time, when he
heard the tribunal pronounce its judgment, condemning Great
Britain to pay $15,500,000 damages for the wrong-doing against
which he had so earnestly and vainly protested. Perhaps the
feeling of his grandfather when he signed the Treaty of Independence
in 1783 might alone be compared to it. Yet his father, John
Quincy Adams, had something of the same feeling when, at the
close of a war which put an end forever to the impressment
of American seamen, and made the sailor in his ship as safe
as the farmer in his dwelling, he signed the Treaty which
secured our boundary and our fisheries as they had been secured
by his father.* John Quincy Adams had struck, by the direction
of his father, in 1815, a seal which he gave to his son, with
the injunction to give it to his, bearing the motto, "Piscemur,
venemur, ut olim,"--We keep our hunting grounds and our fishing
grounds as of old. I doubt if three such achievements, by
three successive generations, can be found in the annals of
any other family however illustrious.
[Footnote]
* This story is told more fully at page 147. It seems appropriate
in both places.
[End of Footnote]
The $15,500,000 was promptly paid. Then came the question
what to do with it. There was no doubt anywhere, that the
owners of vessels or cargoes that had been captured or destroyed
by the cruisers for whose departure from British ports Great
Britain was in fault, were entitled to be paid. That, however,
would not consume the fund. The fund had been paid in gold
coin by Great Britain, September 9, 1873, and had been covered
into the Treasury the same day. This sum was invested in
a registered bond for the amount, of the five per cent. loan
of 1881, dated September 10, 1873, inscribed, "Hamilton Fish,
Secretary of State, in trust. To be held subject to the future
disposition of Congress, etc." This sum largely exceeded what
was necessary to make good the principal of all losses directly
resulting from the damages caused by the insurgent cruisers,
above what had already been reimbursed from insurance. These
claims were popularly termed the "claims for direct damages."
The question what to do with the balance was the subject
of great dispute throughout the country, and of much debate
in both Houses of Congress. Some persons claimed that the
owners directly damaged should receive interest. That would
still leave a large part of the fund undisposed of. It was
insisted that the remainder belonged to the Government for
the benefit of the whole people who had borne the burden and
cost of the war. Others claimed that, as nothing but direct
damages were lawfully assessable, the balance should be paid
back to Great Britain. Still others claimed that the persons
who had suffered indirectly by the loss of voyages, the increased
rates of insurance, and the breaking up of business, were
justly entitled to the money. Still others, perhaps the most
formidable and persistent of all, claimed that the underwriters
who had paid insurance on vessels or cargoes destroyed, were
entitled to the money on the familiar principle that an insurer
who pays a loss is subrogated to all the legal and equitable
claims of the party insured.
These disputes prevented any disposition of the fund by Congress
until the summer of 1874.
Judge Hoar, who was then a Member of the House of Representatives,
suggested that as everybody agreed that the claims for direct
damage ought to be paid, that it was not fair that they should
be kept waiting longer in order to settle the dispute about
the rest of the fund. In accordance with his suggestion a
Court was provided for by Act of Congress, whose duty it was
to receive and examine all claims directly resulting from
damages caused by the insurgent cruisers. They were directed,
however, not to allow any claim where the party injured had
received indemnity from any insurance company, except to the
excess of such claim above the indemnity. They were further
authorized to allow interest at the rate of four per cent.
The Court performed its duty. When its judgments had been
paid there still remained a large balance. The ablest lawyers
in the Senate, in general, pressed the claim of the insurance
companies to the balance of the fund, including Mr. Edmunds,
Judge Davis, Judge Thurman and Mr. Bayard. I took up the
question with a strong leaning for the insurance companies.
I was, of course, impressed by the well-known principle of
law that the underwriter who had paid for property destroyed
by the cause against which he had insured, was entitled to
be substituted to all other rights or remedies which the owner
may have for reimbursement of his loss. I was very much impressed
also in favor of the insurance companies, who were making
what they doubtless believed an honest and just claim, fortified
by many of the best legal opinions in Congress and out of
it, by the character of the attacks made on them, especially
by General Butler. These attacks appealed to the lowest passions
and prejudices. It was said that the companies were rich;
that they made their money out of the misfortunes of their
countrymen; that they were trying to get up to their arm-pits in
the National Treasury, and that they employed famous counsel.
If there be anything likely to induce a man with legal or
judicial instincts to set his teeth against a proposition,
it is that style of argument.
But I came to the conclusion, both from the history of the
proceedings at Geneva, and from the nature of the submission,
that the claim that had been established against Great Britain
was a National claim, made by National authority for a National
injury. That this was the character of the claim our counsel
gave express notice to Great Britain and to the tribunal.
This opinion was asserted by Mr. Fish in his instructions
to the counsel. When the Government of the United States
received it, it seemed to me that it was entitled to apply
it in its high discretion; and to give it to such persons
entitled to its protection or consideration as it should see
fit. I made a careful argument in support of this view. I
thought, accordingly, that the balance of the fund, after
compensating all persons, not yet paid, for claims directly
resulting from damage done on the high seas by Confederate
cruisers, and the class of insurance companies above mentioned,
should be paid to persons who had paid premiums for war risks
after the sailing of any Confederate cruiser. I maintained
this doctrine as well as I could against the powerful arguments
I have named. There were other very strong arguments on the
same side, and I had the gratification of being assured by
several Senators that my presentation of the case had convinced
them. Mr. Blaine, who had, himself, earnestly engaged in
the debate, said that he thought that the opinion of the majority
of the Senators had been changed by my argument.