direct or indirect of war material by a neutral to a belligerent. This Article clearly only apples to material owned by a neutral and not to property rescued by a neutral from a shipwrecked vessel (t).

(iv) THE CONSTRUCTION AND EQUIPMENT OF
VESSELS OF WAR IN NEUTRAL TERRITORY.

THE GENEVA ARBITRATION AND AWARD.

[Moore, Int. Arb. i. 495-682, iv. 4057-4178; Parl. Papers, N. A. 1872; Papers relating to the Treaty of Washington, 1872-3; Wheaton (Dana), 567-580; Scott, 842 (1872).]

Circumstances leading to Arbitration.] DURING the American civil war, the United States Government on several occasions made representations to the British Government concerning certain acts of unfriendly or unneutral conduct alleged to have been committed by the latter, and also concerning numerous acts alleged to have been committed by persons within its territory and jurisdiction in violation of its neutrality. The nature and history of these charges, so far as they concern the recognition by Great Britain of the belligerency of the Southern Confederacy have already been considered (u). Other charges, which proved to be the main foundation of the American case in the subsequent arbitration, related to the construction and equipment in British territory and the treatment in British ports of certain vessels, which had carried on hostilities in the cause of the Confederacy and committed extensive depredations on American commerce. With respect to these vessels, Mr. Adams, the United States Minister in London, had on several occasions brought under the notice of the British Government facts tending to show that British neutrality was being abused by the agents of the Confederacy. More particularly, information had been furnished tending to show that vessels already constructed in the United Kingdom were about to be despatched in the service of the Confederacy (x); that con

(t) Parl. Pap. 1918, [Cd. 8985]; generally, Garner, 1, §§ 301-7; Hyde, $§ 188-91.

(u) See vol. i. 63.

(x) As in the case of The Florida,

in February, 1862; The Alabama, in June, 1862; and The Alexandra, which was the subject of proceedings in Att.-Gen. v. Sillem, 2 H. & C. 431.

tracts for the construction of similar warships had been placed there through the agency of a Liverpool firm; and that the latter was arranging a Confederate loan for the purpose of carrying them out (y). In some of the cases thus brought under its notice the British Government intervened with success (z); in other cases it intervened, but met with a rebuff at the hands of the Courts (a); whilst in other cases it deemed the evidence insufficient, and either refused to intervene, or failed to intervene in time (b). Nor did it see its way, at the time, to amend the municipal law on these subjects, as requested by the United States. In April, 1865, when the war was nearing its close, these and other alleged violations of neutral duty were made the subject of a formal claim for damages on the part of the United States. Thereupon a long correspondence, extending over several years, ensued between the two Governments. The position taken up by the respective parties was in substance as follows: In support of its claims-which came to be known generically as "the Alabama claims,"-it was contended by the United States Government (1) that the recognition by Great Britain of the Southern Confederacy had been premature and unwarranted, and had to some extent brought about a state of things which made possible the other illegalities complained of; (2) that the measures taken by the British Government to prevent the sailing from British ports of vessels which had been fitted out and equipped there in violation of its neutrality were tardy and feeble as well as ineffectual, and that it was immaterial to the United States whether this arose through mistake or defect of law or bad faith or incapacity of officials; (3) that Great Britain did not seize or disarm these vessels on their subsequent entry into British ports, as she was entitled to

(y) This was in February, 1863. (z) As in the case of certain ironclad rams, built by Messrs. Laird & Co., which were seized and ultimately taken over by the Government. Various prosecutions were also instituted against individuals under the Foreign Enlistment Act, 1819.

(a) As in Att.-Gen. V. Sillem, where the defendants were charged, under sect. 7 of the Foreign Enlist

ment Act, 1819, with illegally fitting out The Alexandra with a view to her employment against a friendly Power; the defendants being acquitted, on trial, under a direction requiring animus belligerendi as a condition of liability, whilst an application for a new trial was refused.

(b) As in the case of The Alabama herself : see p. 463, infra.

do; (4) that the British Government had refused even to propose any amendments in the neutrality laws after their inefficiency had been proved; (5) that the British Government had neglected or refused to prosecute the agents of the Confederacy who were residing in England and openly engaged in illegal practices, even though abundant evidence of these had been furnished; and (6) that by reason of these acts the rebel Government had been able to maintain an effective naval force for cruising against American commerce, which had found asylum, effected repairs, and received coal and supplies, in British ports. These occurrences, it was said, had not merely wrought great injury to American commerce, but had largely contributed to the prolongation of the rebellion and the cost of its suppression.

On the part of Great Britain it was contended-(1) that the recognition of belligerency was at once justifiable and necessary (c); (2) that the British Government had throughout acted in good faith and with reasonable diligence in enforcing its laws for the preservation of neutrality, and that if subordinate officials failed in diligence or capacity in particular cases, their acts or failures being merely incidental to proceedings in themselves proper and effective, the nation at large could not be held responsible for their remote consequences; (3) that the British Government did in fact seize and prosecute vessels which were charged with having been fitted out in violation of British neutrality, but that it was not bound by the law of nations to seize or refuse shelter to vessels subsequently duly commissioned as armed vessels by a belligerent Government; (4) that the neutrality laws had not proved so defective as to satisfy the British Government that they needed amendment or as to justify the United States in charging such refusal as a want of good faith; (5) that the British Government had judged in good faith and on the advice of competent counsel whether, in the cases suggested, prosecutions should be instituted; (6) that if vessels fitted out and despatched from British territory, even in violation of British neutrality, had escaped without bad faith on the part of the Government, Great Britain was not responsible for acts of hostility committed by such vessels beyond her

(c) See vol. i. 63.

jurisdiction, her duty extending only to the restoring of prizes illegally taken and subsequently brought within that jurisdiction. On these grounds Great Britain, in the first instance, declined to entertain any claim for compensation.

Other differences of a grave character also existed at the time between the two Powers, including those arising out of the North American Fisheries question (d), the navigation of the St. Lawrence and other waters (e), the operation of the then British nationality laws in regard to subjects who had been naturalized in the United States (f), and the San Juan boundary question (g), whilst Great Britain, on her part, had claims against the United States for losses sustained by British subjects during the civil war and by reason of the Fenian raids on Canada. Hence the relations of the two Powers were for some time greatly strained. In 1866, however, on the accession to office of a new administration (h), the British Government expressed its willingness to reconsider the question, with the result that a long series of negotiations took place with a view to the settlement of both of the Alabama claims" and other differences. On two occasions -once in 1868 and again in 1869-a satisfactory agreement appeared to have been reached; but in each case the agreement failed to secure the necessary confirmation on the part of the United States Senate (i). In 1871, it was proposed by Great Britain that all questions affecting the relations between the United States and the British possessions in North America should be referred to a Joint High Commission, composed of members nominated by the two Governments, which should meet at Washington and treat of or discuss the mode of settling each question. This proposal was accepted by the United States, subject to a condition that the "Alabama claims" should be included in the reference. To this Great Britain assented on condition that the reference should include all claims both of

(d) See vol. i. 158. (e) Ibid. 119.

(f) Ibid. 197.

(g) Halleck, i 173, 464.

(h) With Lord Derby as Prime Minister and Lord Stanley as Foreign Secretary.

(i) In the case of the Johnson

Clarendon Convention of 1869, the Convention was summarily rejected in the Senate in circumstances that rendered subsequent negotiations far more difficult than they might otherwise have been: see Moore, Int. Arb. i. 507.

British subjects and United States citizens arising out of the civil war. This, again, was assented to by the United States, with the result that the proposal, as finally amended, was adopted (k). A Joint High Commission, consisting of five commissioners nominated by each party, was thereupon appointed, and met at Washington on the 22nd of March, 1871. After discussions extending over several weeks, an agreement as to the settlement or mode of settlement to be adopted, in respect of each of the various matters in issue between the two Powers, was ultimately reached. With respect to the " Alabama claims," it was originally proposed that the Commission itself should make an award of damages; but this being objected to by the British delegates on the ground that it assumed a liability which was not admitted in fact, it was ultimately agreed to refer them to a special tribunal, subject, however, to a stipulation, made by the United States and ultimately accepted by Great Britain, that the rules by which the arbitrators were to be guided in their decision should be embodied in the treaty. It was on this basis that the Treaty of Washington, which was signed on the 8th of May, 1871, and subsequently duly ratified by both parties, was drawn up. Of the various other matters in issue, all claims against either Government arising out of the civil war, other than the “Alabama claims," were, by Arts. 12-17, referred to a Joint Commission; the Fisheries question was dealt with by the treaty itself (1); the question of the navigation of the St. Lawrence and certain other waters was also dealt with by the treaty (m); whilst the San Juan boundary question was referred to the arbitration of the German Emperor (n). Here, however, we are concerned only with those provisions of the treaty which relate to the "Alabama claims."

Treaty of Washington and the "Alabama Claims." It was agreed by Arts. 1-11 of the treaty that these claims should be