CHAPTER X 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.