umpire, chosen by the parties or by lot, serving in the other

cases.

But though the alleged heinous offence of Great Britain in regard to the recognition of the belligerent rights was condoned by the author of the complaint, it was not so by the very accomplished scholar then at the head of the Committee on Foreign Affairs, and to whom it is impossible to impute ignorance, either of political history or of the rules of international law. As Mr. Sumner's speech, presenting a most formidable bill of indictment against Great Britain, at the head of which he places the Queen's proclamation of neutrality, and from the consequence of which he deduces claims, not only for the destruction of property by the confederate cruisers but for untold millions for the expenses of the of the protracted war, was published with the consent of the Senate, we are bound to ascribe to his reasoning the nearly unanimous rejection of the treaty. Mr. Motley, moreover, in his earlier intercourse with Lord Clarendon, stated, with respect to the treaty: "The time at which it was signed was thought most inopportune, as the late President and his government were virtually out of office and their successors could not be consulted on this grave question. The convention was further objected to because it embraced only the claims of individuals and had no reference to those of the two governments on each other; and lastly, that it settled no question and laid down no principle."

Nor did the prospects of adjustment seem to have been much improved by the inauguration of the new administration. While not basing our rights to redress for the Alabama claims solely on the action of the British government at the commencement of the secession, the American government continued to consider the recognition as an unfriendly proceeding and leading to other consequences for which claims for indemnity were due. The course of the American Minister at London in exaggerating his instructions on this point, and in assuming, as it were, the prerogative of making war in his menaces to the British government, had induced a state of

things which seemed to render any further attempt at negotiations impracticable; but the reasons assigned for his recall, and in which his course was fully disavowed, having satisfied the government of Great Britain that a change of policy had occurred at Washington, a measure, in appointing a board of commissioners, eminent for their rank and public station, to meet plenipotentiaries on the part of the United States, was inaugurated, showing the importance attached by England to the maintenance of friendly relations with the United States. It has resulted in a treaty now before the Senate for ratification, which, instead of being confined to a single point, sets at rest all those questions which have so repeatedly given rise to angry discussions between the two powers.

The treaty proposes, as in the original suggestion of Lord Stanley in 1867, a special reference of the Alabama claims. Five arbitrators are to be named, one each by the United States, Great Britain, the King of Italy, the President of the Swiss Confederation, and the Emperor of Brazil, or in case of the omission of either of the three last named sovereigns, by the King of Sweden and Norway. They are to determine as to each vessel separately whether Great Britain had failed to fulfill the duties set forth by the prescribed rules laid down in the treaty, and if so they may award a sum in gross to be distributed by the United States, or they may agree that the amount shall be distributed by a board of assessors to be appointed by the President, by her Britannic Majesty, and by the King of Italy. What ought to commend this portion of the treaty to us is that the rules which are to be the basis of the adjudication are essentially the same as were adopted by our government in the Presidency of Washington, and when Jefferson was Secretary of State. Their importance will justify inserting them entire. "A neutral government is bound," it is said, "First, 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 carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its

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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 waters, and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties."

Though it is declared in the treaty that the British government cannot admit that the rules which are thus established were in force at the time when the claims, to which it is agreed that they should apply, arose, yet they are not only to be recognized as hereafter binding between the two nations, but their influence is pledged to have them acknowledged by all the other States.

The sanction of the English government has been, indeed, given to measures even more stringent. So far back as January, 1867, a commission was appointed, consisting of some of the most eminent English jurists, including Phillimore, Twiss, and Vernon Harcourt, all high authorities in international law, and to which Mr. Abbott (now Lord Tenterden) was attached in the capacity that he at present holds to the High Commission at Washington. The result of their labors was embodied in the act of 9th of August, 1870, the passage of which was hastened by the Franco-Prussian war. This act prohibits the building or causing to be built, by any person within Her Majesty's dominions, any ship with intent or knowledge of its being employed in the military or naval service of any foreign State at war with any friendly State; issuing

*A suggestion is understood to have been made in the Senate, and it has also been made in England, that the clause of the second rule might extend to a general prohibition of the supplying of munitions of war by a neutral to a belligerent. For this, we think there is no reason. The context, as well as the declared object of the rules, shows that the clause can only refer to military supplies, arms or men furnished for the naval operations, of which the neutral ports or waters are the base; in other words, the scope of that clause is controlled by the preceding one.

or delivering any commission for any such ship; equipping any such ship, or dispatching or causing any such ship to be dispatched for such purpose. It is deserving of notice that Mr. Vernon Harcourt dissented to that portion of the report of the commissioners that applied to the prohibition of ship building. Jurisdiction, in cases under the act, is given to the Court of Admiralty, which is not the least important amendment of the law.

The proposed reference, in 1862, by Mr. Seward, to a mixed commission reached all claims of the citizens or subjects of the one country on the government of the other since 1853, and such also was the provision of the conventions negoti ated by Mr. Johnson. It does not appear why the authority of the commission for the claims, other than the Alabama claims, is now less comprehensive, though its practical effect is to preclude any claims for the Fenian raids into Canada, which were presented by the British Commissioners, but withdrawn. They did not occur till 1866. Sir Edward Thornton, in his note to Mr. Fish, of February 1, 1871, only refers to claims arising out of acts committed during the civil war. By the terms of the convention, it applies to claims arising out of acts committed "against persons and property" during the period between the 13th of April, 1861, and the 9th of April, 1865. These claims are referred to a commission of three members, one to be appointed by the Queen, one by the President, and the third by the two governments conjointly, or, if they cannot agree within the prescribed time, by the representative of the King of Spain at Washington.

It has been objected to this commission that claims might be preferred for slaves liberated at the south, and for injuries sustained by Englishmen, domiciled or otherwise there, in consequence of the ravages of the war, and in cases in which American citizens could have no claims. Both of these objections are, however, untenable, as dealing in slaves, or even owning them, has long been made, on the part of an English subject no matter where he may be a resident, a felony; and since Mr. Marcy's note of February, 1857, to M. de Sartiges,

on account of the destruction of property, at the bombardment of Greytown, it is no longer a question but that foreigners must take the same risk as to their property, in a country exposed to the hazards of war as the inhabitants do. This note was not only deemed conclusive by France, whose claims were withdrawn, but was referred to in the English Parliament, by Lord Palmerston, as being unanswerable. (Lawrence's Wheaton, 2d Ed., 174.) I have cited in my Commentaire, Vol. III., from the Revue des Deux Mondes and Revue de Lesur,the cases occurring in 1849-50 of the reclamations of England at Naples and Florence on account of losses sustained by her subjects during the civil commotions in Italy, and in which Austria and Russia intervened on behalf of these States. The answers of the English government to their subjects in France during the Franco-Prussian war, eschewed all intervention for losses sustained by them; and the views there expressed would be applicable to any similar pretensions of Englishmen for property taken or destroyed in our civil war, as the result of hostilities. So far as regards maratime prizes, it is a well recognized principle, that no claim can be made on the government of the captor, till all the remedies provided through the Prize Courts have been exhausted, and then only in case of a seizure contrary to the law of nations.

With respect to the fisheries. As in 1818, liberty was substituted for right, a word for which John Adams so earnestly contended at the treaty of 1783, and the perpetual character of which right was, as we conceive, so clearly established by John Quincy Adams, there is not now, nor was there in 1854,any longer a question of principle involved, but a mere matter of bargain, the details of which we are not competent to examine here; and this remark is applicable to other portions of the treaty, as the transit of goods and other facilities of trade. The application of the articles as to the fisheries is made contingent with respect to Newfoundland, upon the action of the Imperial Parliament, the Legislature of Newfoundland, and the Congress of the United States. It will be recollected that a convention made between France and England, in 1857, on