Reconstruction and the Constitution, 1866-1876

by John William Burgess

CHAPTER XIV

INTERNATIONAL RELATIONS OF THE UNITED STATES BETWEEN 1867 AND 1877

[The Purchase of Alaska]—[The Contention of the House of Representatives in Regard to its Power over Treaties]—[The Senate's Position and the Compromise]—[Irritation of the American People against Great Britain]—[The Johnson-Clarendon Treaty]—[President Grant's Statements in His First Annual Message and in His Second Annual Address]—[Sir John Rose's Mission to the United States—The Joint High Commission]—[The Treaty of Washington]—[The Alabama Claims and the Geneva Convention]—[Triumph of the Diplomacy of the United States]—[Organization of the Tribunal and Filing of the Cases]—[The Controversy between Mr. Fish and Lord Granville]—[The Filing of the Counter Cases and the Argument]—[Obstacles—Decision of the Tribunal in Regard to National and Indirect Damages]—[The Decision of the Tribunal in the Case of the Florida]—[The Decision in the Case of the Alabama]—[The Decision in the Case of the Shenandoah, and other Vessels]—[International Principles Settled by the Geneva Tribunal]—[The Northwest Boundary Question]—[The Fisheries Question]—[The Halifax Commission and Award]—[The Burlingame Treaty with China]—[The Attempt to Annex the Dominican Republic to the United States]—[The Treaty]—[The Treaty before the Senate]—[Its Rejection]—[The President's Attempt to Renew Negotiations]—[The Committee of Inquiry]—[The Report of the Committee]—[The Abandonment of the Scheme].

The two chief products of American diplomacy in the decade between 1867 and 1877 were the purchase of Alaska, and the treaty of Washington with Great Britain.

The purchase of Alaska, the northwest corner of the North American continent, together with the islands adjacent thereto, a vast

The purchase
of Alaska.

The proposition came from the side of Russia, and it appeared that Russia was more eager to sell than the United States was to buy. The

The reasons
for and against
the purchase.

On the other hand, such men as General Banks and Mr. Stevens contended that from the point of view of a business transaction alone it was worth the money; and Mr. Higby, of California, told his colleagues that they were mistaken in regard to the climate of the region. The consideration, however, which seems to have had most weight was gratitude toward Russia, whose government had manifested the most friendly feeling for the Union in the struggle against the giant rebellion, and had even threatened interference in behalf of the Union against interference in behalf of the Confederacy by any other European state. That acute observer of political opinion, Mr. Blaine, affirmed that a like offer from any other European government would most probably have been declined.

It is, however, almost certain that Mr. Seward had another very profound reason for making the purchase, one which he could not very

A real political
reason for
the purchase.

When the bill for making the appropriation to pay for Alaska came before the House of Representatives, that body raised the question of

The contention of the
House of Representatives
in regard to its power
over treaties involving
the payment of money
by the United States.

The Senate, on the other hand, repudiated this doctrine, and rejected the bill with the preamble containing it as it came from the House of

The Senate's position
and the compromise.

The contention of the House was good political science, but it is still doubtful whether it is the constitutional law of the United States or not. The more recent constitutions of even the European states, such as those of Germany and France, make the consent of both houses of the legislature necessary to the validity of all treaties involving the appropriation of money, or the assumption of any financial obligation. This is as it should be; and the Constitution of the United States ought to be so amended as to establish clearly the same principle.

We have, in the preceding volume of this series, followed the history of the relations of the United States with Great Britain down to the

Irritation of the
American people
against Great Britain.

Change of Ministry
and Parliamentary
majority in 1867.

Before, however, the discussion had fairly begun Mr. Adams returned to the United States, and Mr. Reverdy Johnson was sent out to the British

The Johnson-Clarendon treaty.

The Senate of the United States promptly rejected the treaty with much feeling, because it did not contain proper provision, in its view, for the reparation of wrongs to the Nation. The feeling among the people of

President Grant's
statement in his
first Annual Message.

"Toward the close of the last Administration a convention was signed in London for the settlement of all outstanding claims between Great Britain and the United States, which failed to receive the advice and consent of the Senate to its ratification. The time and the circumstances attending the negotiation of that treaty were unfavorable to its acceptance by the people of the United States, and its provisions were wholly inadequate for the settlement of the grave wrongs that had been sustained by this Government, as well as by its citizens. The injuries resulting to the United States by reason of the course adopted by Great Britain during our late Civil War in the increased rates of insurance, in the diminution of exports and imports and other obstructions to domestic industry and production, in its effect upon the foreign commerce of the country, in the decrease and transfer to Great Britain of our commercial marine, in the prolongation of the war and the increased cost, both in treasure and lives, of its suppression, could not be adjusted and satisfied as ordinary commercial claims which continually arise among commercial nations; and yet the convention treated them as such ordinary claims, from which they differ more widely in the gravity of their character than in the magnitude of their amount, great even as is that difference. Not a word was found in the treaty, and not an inference could be drawn from it, to remove the sense of the unfriendliness of the course of Great Britain in our struggle for existence, which had so deeply and universally impressed itself upon the people of this country. Believing that a convention thus misconceived in its scope and inadequate in its provisions would not have produced the hearty, cordial settlement of pending questions, which alone is consistent with the relations which I desire to have firmly established between the United States and Great Britain, I regarded the action of the Senate in rejecting the treaty to have been wisely taken in the interests of peace and as a necessary step in the direction of a perfect and cordial friendship between the two countries. A sensitive people, conscious of their power, are more at ease under a great wrong wholly unatoned than under the restraint of a settlement which satisfies neither their ideas of justice nor their grave sense of the grievance they have sustained. The rejection of the treaty was followed by a state of public feeling on both sides which I thought not favorable to an immediate attempt at renewed negotiations. I accordingly so instructed the Minister of the United States to Great Britain, and found that my views in this regard were shared by Her Majesty's Ministers. I hope that the time may soon arrive when the two Governments can approach the solution of this momentous question with an appreciation of what is due to the rights, dignity and honor of each, and with the determination not only to remove the causes of complaint in the past, but to lay the foundation of a broad principle of public law which will prevent future differences and tend to firm and continued peace and friendship."

The President's
statement in his
second annual message.

For another year things drifted, and the views of the two Governments seemed to be getting wider apart, when President Grant wrote in his Message of December 5th, 1870:

"I regret to say that no conclusion has been reached for the adjustment of the claims against Great Britain growing out of the course adopted by that Government during the Rebellion. The Cabinet of London, so far as its views have been expressed, does not appear to be willing to concede that Her Majesty's Government was guilty of any negligence, or did or permitted any act during the War by which the United States has just cause of complaint. Our firm and unalterable convictions are directly the reverse. I therefore recommend to Congress to authorize the appointment of a commission to take proof of the amount and the ownership of these several claims, on notice to the representative of Her Majesty at Washington, and that authority be given for the settlement of these claims by the United States, so that the Government shall have the ownership of the private claims, as well as the responsible control of all the demands against Great Britain. It cannot be necessary to add that whenever Her Majesty's Government shall entertain a desire for a full and friendly adjustment of these claims the United States will enter upon their consideration with an earnest desire for a conclusion consistent with the honor and dignity of both nations."

This was what is now called "a twist of the lion's tail." It was something of a twist, although it was accompanied with the offer of the olive branch, instead of the sword. It was effective, even more effective for the conciliatory tone of the final paragraph. Moreover, with the German armies encamped around Paris and throughout France, the affairs of Continental Europe were too unsettled and precarious for Great Britain to run the risk of any serious complications with the United States.

Accepting the President's message as an invitation to renew negotiations, the British Government, at the beginning of the next year

Sir John Rose's
mission to the
United States.

The Joint High
Commission.

The first eleven articles of this agreement relate to the claims for damages arising from the incidents of the Civil War, known as the

The Treaty of
Washington.

They contain, in the first place, an expression of regret for the escape of the Confederate vessels from British ports and for the depredations committed by them.

They provide, secondly, for a tribunal of arbitration, composed of five members, one of whom should be named by the President of the United States, one by Her Britannic Majesty, one by the King of Italy, one by the President of the Swiss Confederation, and one by the Emperor of Brazil; and, in case either of these last three mentioned should fail to name an arbitrator, they provide that one should be named by the King of Sweden and Norway; and finally, that one agent should be named by each of the high contracting parties to represent it generally in all matters connected with the arbitration.

They provide, in the third place, that "the Arbitrators shall meet at Geneva, in Switzerland, at the earliest convenient day after they shall

The Alabama claims and
the Geneva convention.

They provide, in the fourth place, that each of the two high contracting parties should deliver his written or printed case, together with all the evidence in support of it, to each of the arbitrators and to the agent of the other party, as soon as possible after the organization of the Tribunal, and within a period not exceeding six months from the 17th of June, 1871; that within four months after the delivery on both sides of the case, each party might put in a counter case, with additional evidence, in reply to the case of the other party; that the arbitrators might extend the time, under certain circumstances, for delivering the counter case; that "within two months after the expiration of the time limited for the delivery of the counter case on both sides," the agent of each party should deliver to each of the arbitrators "and to the agent of the other party a written or printed argument showing the points and referring to the evidence upon which his Government relies"; and that the arbitrators might require further argument by counsel, giving to each party an equal chance to be heard.

They provide, in the fifth place, that the Tribunal should consider the case of each vessel separately; that it might, however, award a gross sum, or that in case it did not award a sum in gross, the high contracting parties should appoint two members of a board of assessors, and request the Italian Minister at Washington to appoint a third, which board should determine the amounts due in the cases in which the arbitrators had pronounced responsibility.

They provide, in the sixth place, that in deciding the matters submitted the arbitrators should be governed by the following rules:

"A neutral government is bound, first, to use 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. Secondly, 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. Thirdly, 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 obligations and duties."

They provide, in the seventh place, that the high contracting parties would "agree to observe these rules as between themselves in the future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them."

And they provide, finally, that the result of the proceedings of the Tribunal and the Board of Assessors, in case such board should be appointed, should be accepted as a final settlement of all the claims known as the Alabama Claims, and should be a bar to any further proceedings in regard to them.

It will be seen that the Government of the United States had in this Treaty substantially won all of the points for which it had contended.

Triumph of the
diplomacy of the
United States.

It is true that Her Majesty's Government qualified its acceptance of the rules to be applied in determining its responsibility by inserting an explanation in the Treaty of the following tenor: "Her Britannic Majesty has commanded her High Commissioners and Plenipotentiaries to declare that Her Majesty's Government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I. arose, but that Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries and of making satisfactory provision for the future, agrees that, in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these rules."

And it is also true that, while, according to the letter of the Treaty, the United States Government was left unfettered as to the character of the claims which it might lay before the Arbitrators, Her Majesty's Government had been led to expect more moderation in this respect than the popular sentiment in the United States seemed to indicate.

The two Governments and the high personages invited by them proceeded in due time to appoint the Arbitrators. The President of the United

The arbitrators,
agents and counsel.

The President of the United States also appointed Mr. J. C. Bancroft Davis as the agent of the United States before the Tribunal, and Mr. Caleb Cushing, Mr. William M. Evarts and Mr. Morrison R. Waite as counsel.

Her Majesty's Government also appointed Lord Tenterden as the agent of Great Britain before the Tribunal, and Sir Roundell Palmer as chief counsel.

On the 15th of December, 1871, the Arbitrators organized the Tribunal at Geneva with Count Frederic Sclopis in the chair as presiding

Organization of
the Tribunal and
filing of the cases.

The contents of the case of the United States became immediately known to the British Ministers, but not for some weeks to the British people. The Ministers were not apparently disturbed in mind about it, although they discovered at once that it contained claims for national damages and indirect damages as well as for direct damages to individuals; but as soon as the newspapers got hold of this fact, they raised a tremendous hue and cry, and accused those who had prepared the case of taking an unfair advantage of the wording of the treaty. The Minister of the United States in London, General Schenck, informed Mr. Fish by cable of the agitation in London over the subject and of the demand of the newspapers that the claim for national and indirect damages should be withdrawn. Mr. Fish replied firmly that "there must be no withdrawal of any part of the claim presented." At this moment the session of Parliament opened and the Queen's speech contained a criticism of the extravagance of the claims of the United States in the case submitted to the Tribunal. The matter was warmly debated in Parliament, and on

The controversy
between Mr. Fish
and Lord Granville.

Before this discussion terminated the day arrived for the filing of the counter cases. They were both promptly filed with a reservation

The filing of the
counter cases
and the argument.

It looked as if the work of the commissioners, who had framed the Treaty, and of the Arbitrators, who had now given six months of their

Obstacles.

Decision of the
Tribunal in regard
to national and
indirect damages.

The President of the United States was duly informed of this announcement by the Tribunal, and, upon the advice of the learned counsel for the United States, he instructed the agent of the United States to make the following reply to the Tribunal:

"The declaration made by the Tribunal, individually and collectively, respecting the claims presented by the United States for the award of the Tribunal for, first, the losses in the transfer of the American commercial marine to the British flag, second, the enhanced payment of insurance, and, third, the prolongation of the war and the addition of a large sum to the cost of the war and the suppression of the Rebellion, is accepted by the President of the United States as determinative of their judgment upon the important question of public law involved."

This reply was read to the Tribunal on the 25th of June, and on the 27th the British agent, under instructions from his Government, withdrew his request for an adjournment and filed his argument.

It was supposed by the Americans that the whole case on both sides was now in, and that, unless the Arbitrators should require further argument or statement in reference to specific points, the Tribunal would now proceed to make its decisions. But the British counsel and the British agent immediately petitioned the Tribunal to be allowed to prepare and present another argument, and to have six weeks' time in which to do it, and even the member of the Tribunal appointed by the British Government exerted himself to secure this delay and this new opportunity for the British agent and his counsel. The Tribunal felt, however, that it was in possession of the evidence and the argument necessary for determining the question before it, and refused the request.

The Tribunal now adjourned to the 15th of July, in order to give its members time and opportunity to study the cases. On the 15th, the arbitrators reassembled and invited the agent and counsel of each of the high contracting parties to sit with them in their conferences. To all others, however, the doors were closed. They spent some two days discussing the order of the procedure which they should follow, and finally adopted the order proposed by Mr. Staempfli, and also indicated in the Treaty itself, which was to take up the case of each vessel separately, and allow each Arbitrator to express a provisional opinion upon it, which opinion, however, should not be conclusive even on the Arbitrator himself who gave it.

On the 17th of the month (July), the Tribunal proceeded to take up the case of the Florida and to hear the opinions of the Arbitrators upon

The decision of the
Tribunal in the
case of the Florida.

Upon the reassembly of the arbitrators, Baron d'Itajubá called on the British counsel for a statement or an argument on the questions of due diligence, and of the effect of commissions held by Confederate war vessels which had entered British ports, and of the legitimacy of coal supplies to Confederate vessels in British ports. Of course the counsel of the United States would be permitted to reply.

The Tribunal approved the proposition, and then proceeded to the case of the Alabama. The Arbitrators agreed unanimously in their views of

The decision in the
case of the Alabama.

The Tribunal then took up the case of the Shenandoah. The Arbitrators were unanimously of the opinion in this case that the British

The decision in the
case of the Shenandoah,
and other vessels.

In regard to all the other vessels mentioned in the case of the United States, excepting only the Retribution, the Arbitrators were unanimous in the opinion that the British Government had not failed in due diligence in the discharge of its duties as a neutral, and in regard to the Retribution three of the five Arbitrators held the like opinion. After hearing the additional arguments called for, the Tribunal closed the doors on the 26th of August, and, without the presence even of agents or counsel, deliberated upon the momentous questions submitted to it. On the 9th of September the decision was adopted. The Tribunal then adjourned to the 14th, upon which day the decision was to be proclaimed to the world.

The public session of the Tribunal on the 14th was a solemn and an imposing affair with nothing to mar the satisfaction of those who participated in it, except the discourtesy of Sir Alexander Cockburn, who not only kept the assembly waiting for his appearance long past the appointed hour, but departed with unseemly haste at the close of the valedictory pronounced by the president, Count Sclopis.

The award followed the line of the opinions already recited. It convicted the British Government of a lack of due diligence in the discharge of its neutral duties in the cases of the Alabama and the Florida and their respective tenders, and also in the case of the Shenandoah from the time she left the port of Melbourne, but exonerated it in all other cases.

The award also repeated the decision announced by Count Sclopis, on the 19th of June, excluding the claims for national and indirect damages, and then fixed the amount due to the United States from Great Britain in the gross sum of "fifteen millions five hundred thousand dollars in gold, as the indemnity to be paid by Great Britain to the United States for the satisfaction of all the claims referred to the consideration of the Tribunal." Sir Alexander Cockburn refused to sign the award, and filed a statement of his reasons for his dissent. The other four members of the Tribunal signed it, and as the majority rule had been provided for in the Treaty, both of the high contracting parties were duly bound, and so regarded themselves.

As to principles decided by the entire procedure of the commissioners and of their Governments in the formation of the Treaty, and of the

International
principles settled
by the Geneva
Tribunal.

Two other questions of great importance were placed in course of solution by the Treaty of Washington. One was the contention between

The Northwest
boundary question.

The other question was that which related to the common rights of fishing to be enjoyed by the citizens and subjects of the two high

The Fisheries
question.

The contention on the part of Great Britain in regard to this subject was that the rights and privileges accorded to the citizens of the

The Halifax
commission
and award.

The President named, as the representative of the United States, the Hon. Ensign H. Kellogg. The Queen appointed, as her representative, Sir Alexander T. Galt. And the two high contracting parties not being able to agree upon the third member of the commission, the Austro-Hungarian Ambassador to the Queen named Maurice Delfosse, the Belgian Minister Plenipotentiary to the United States. Delfosse had been proposed by the British Government to the Government of the United States as the third commissioner, and the President had objected to him as being the representative of a country whose interests were too nearly allied with those of Great Britain. It was naturally understood by the President that this had disposed of Delfosse, and the Government at Washington was taken by surprise when the Austro-Hungarian Ambassador at London, Count Beust, made it manifest that he should name Mr. Delfosse. Mr. Fish, the Secretary of State, with true diplomatic instinct, immediately accommodated himself, however, to the situation, and congratulated Delfosse upon his appointment. Count Beust announced the choice of Delfosse on the 2d of March, 1877, nearly six years after the Washington Treaty was negotiated and signed, during which period the fisheries of Newfoundland were brought under the same agreements as those of Canada, Prince Edward's Island, and the United States above the thirty-ninth parallel. The Commission finally met at Halifax in the latter half of the year 1877 and on November 23d, 1877, made its award, sustaining by a vote of two to one the contention of Great Britain, and adjudging that the United States Government should pay the Government of Great Britain the sum of five millions five hundred thousand dollars in gold.

The representative of the United States, Mr. Kellogg, dissented from the decision; and it was felt in the United States that the Government had been overreached in the matter. Considerable delay in the payment of the amount thus resulted, and some controversy over it with Great Britain occurred. But finally, on November 21st, 1878, the draft for the amount was delivered to the British Government by Mr. Welsh, the Minister of the United States at the Court of St. James.

Two other events of an international character happened within the decade between 1867 and 1877 to which brief reference should be made, viz., the Chinese Treaty of 1868, and the strong and persistent attempt of President Grant to bring Santo Domingo under the sovereignty of the United States.

In 1861 Anson Burlingame, a citizen of the United States and a resident of Massachusetts, was sent as Minister of the United States to China.

The Burlingame
Treaty with China.

At the moment of General Grant's accession to the presidency there was civil commotion in the Dominican Republic. Buenaventura Baez was the

The attempt to annex
the Dominican Republic
to the United States.

In July of 1869, President Grant sent General Orville E. Babcock to Santo Domingo with written instructions from the Secretary of State, Mr. Fish, to inquire into the political situation there and into the value and resources of the country. Babcock, terming himself aide-de-camp to the President of the United States, succeeded somehow

The Treaty.

On the 10th of January, 1870, President Grant sent this proposed Treaty to the Senate for ratification. He must have thought that there would

The Treaty
before
the Senate.

The Committee on Foreign Affairs thoroughly sifted the subject, and recommended that the proposed Treaty be not ratified, and the

Its rejection.

In his next annual message, that of December 5th, 1870, he took up the matter again, went over all of his old arguments expressed in even more

The President's
attempt to renew
negotiations.

These recommendations and suggestions and the language in which they were expressed were felt to be most exasperating by those Senators and

The Committee
of Inquiry.

The President appointed as commissioners Benjamin F. Wade, Andrew D.

The report of
the commissioners.

On the 5th of April, 1871, the President submitted this report to Congress, accompanied by a message which contained a justification of

The abandonment
of the scheme.