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The Alabama Claims Arbitration

Published online by Cambridge University Press:  17 January 2008

Tom Bingham
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Abstract

A lecturer on the Alabama claims and the Geneva Tribunal of 1871–2, like a director of Hamlet, has to accept one inescapable fact: that everyone knows, broadly at least, how the story ends. There can be no reliance on suspense to sustain interest in the narrative. So I shall begin at the end.

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 54 , Issue 1 , January 2005 , pp. 1 - 25
Copyright
Copyright © British Institute of International and Comparative Law 2005

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References

1 Jenkins, RGladstone (Macmillan London 1995) 359.Google Scholar

2 ibid 356–7.

3 Moore, JBHistory and Digest of the International Arbitrations to which the United States has been a Party (Washington 1898) vol 1, ch XTV ‘The Geneva Arbitration’ at 652–3 (hereafter cited as ‘Moore’).Google Scholar

4 There is another view. Bulloch, EDThe Secret Service of the Confederate States in Europe (Richard Bentley London 1883) vol 2 at 410, wrote: ‘The “Geneva Arbitration” must therefore be recorded in history as a great international fiasco.’ But Bulloch was a far from objective witness.Google Scholar

5 Moore (n 3) 495.Google Scholar

6 ibid.

7 Cook, AThe Alabama Claims (Cornell University Press Ithaca 1975) 18.Google ScholarJohn, Laird, the former senior partner of the builders of the Alabama, who on retirement from the firm became the Conservative Member of Parliament for Birkenhead, was similarly cheered when, attacking Bright in the House on 27 March 1863, he said: ‘I would rather be handed down to posterity as the builder of a dozen Alabamas than as the man who applies himself deliberately to set class against class and to cry up the institutions of another country …’: US case, at 41. In March 1863 the destructive career of the Alabama was at its height.Google Scholar

8 The United States in its Case (2nd edn at 41) placed special reliance on this speech by a leading member of the British Government. Gladstone nobly atoned for this unfortunate speech, both by his statesmanship in securing arbitration of the Alabama claims, and also by the unreserved regret for the speech which he expressed over 30 years later, an event rare in the history of politics: see Parish, P ‘Gladstone and America’ in Jagger, PJ (ed) Gladstone (Hambleden Press London 1998) 96–100.Google Scholar

9 See, eg, the US Case ch II; Hackett, FWReminiscences of the Geneva Tribunal of Arbitration 1872 (Houghton Miflin Boston 1911) ch III (hereafter cited as ‘Hackett’);Google ScholarAdams, EDGreat Britain and the American Civil War (Longmans London 1925) vol 2, ch XVIII. See also Bulloch (n 4) vol 2 303;Google ScholarPalmer, RMemorials (Macmillan London 1898) Part II, vol I 206–7.Google Scholar

10 See the US Case (n 8) 23. As early as 1 May 1861 Lord John Russell, the Foreign Secretary, instructed the Admiralty to observe strict neutrality. On 4 May 1865 he told the Duke of Somerset that the government's instructions ‘will be founded on the principle of neutrality between the two belligerents’: see file PRO 30/22/31 at the National Archives.Google Scholar

11 Spencer, WFThe Confederate Navy in Europe (University of Alabama Press 1983) 2.Google Scholar

12 Bulloch (n 4) vol I 27.Google Scholar

13 In The Secret Service of the Confederate States in Europe (n 4), Bulloch gave a detailed but highly partisan account of his activities.Google Scholar

14 A number of historians have told the story or parts of it, among them Owsley, FLKing Cotton Diplomacy (University of Chicago Press Chicago 1931);Google ScholarOwsley, FL JnrThe CSS Florida: Her Building and Operations (University of Alabama Press 1965);CrossRefGoogle ScholarSpencer, WFThe Confederate Navy in Europe (University of Alabama Press 1983);Google ScholarMabin, DBOne War at a Time (Brasseys 1999).Google ScholarA lively modern account is given by de Kay, JT in The Rebel Raiders (Ballantine New York 2002), on which I have drawn substantially.Google Scholar

15 The solicitor was Mr FS Hull. His advice was confirmed by ‘two eminent barristers, both of whom have since filled the highest judicial positions’: Bulloch (n 4) vol I 66. Bulloch does not name the counsel involved, but it seems that they may have been Sir Hugh Cairns and George Meffish: ibid 96–7.

16 A copy of the judgment is in the National Archives, FO 881/2017B. The United States in its case suggested that this trial was little more than a charade, designed to ensure that the vessel was released: see 135–9. There must be room for more than a little doubt about correctness of the decision. But there appears to be no reason to question the bona fides of those involved, and a detailed minute of the proceedings is preserved by the Department of Archives in Nassau.Google Scholar

17 Bulloch (n 4) vol I 167.Google Scholar

18 It appears from the US Case (at 146), and was tentatively accepted in the British Counter Case (at 114–15), that the contract was probably made on 9 Oct 1861 when the drawings were signed. This may no doubt be correct. But de, Kay, The Rebel Raiders (Ballantine New York 2002) 26, confidently dates the contract as signed on 1 Aug 1861 and Bulloch's account, (n 4) vol I 59, strongly suggests that the details of the order were settled well before October.Google Scholar

19 Bulloch (n 4) vol I at 228, does not name the lady who christened the ship.Google Scholar

20 This conflicted with the advice given to the shipbuilders by George Mellish (later Lord Justice), than whom (in the opinion of Roundell Palmer) ‘there was no better lawyer at the English Bar’. His advice, like that given to Bulloch, was that the 1819 Act applied only to vessels capable of committing hositilities against an enemy when they left British waters: see Palmer, RMemorials (Macmillan London 1896) part I, vol II at 417.Google Scholar

21 On the appointment of Sir Robert Phillimore to succeed Harding, this ‘anachronism’ as Palmer called it (n 20 at 378) was ended.Google Scholar

22 Hammond, , permanent secretary to the Foreign Office in 1862, when asked about this mishap in 1869 by Russell, engagingly observed: ‘The Foreign Office could not divine that poor Harding was mad, even if they had known that he was ill, which they hardly could do’: R Palmer (n 20) 427.Google Scholar

23 See Mahin, DBOne War at a Time (Brasseys 1999) 150–2.Google Scholar

24 See FO 881/2017A at the National Archives. Bulloch gave credence to suspicion of a tip-off by writing (n 4) vol I 238: ‘On Saturday July 26th 1862,1 received information from a private but most reliable source, that it would not be safe to leave the ship in Liverpool another forty-eight hours.’ He was, however, at pains to exonerate any British official of treachery, breach of trust, or improper behaviour: ibid 262–4.

25 The USS Hatteras.Google Scholar

26 She may at one time have borne the rather incriminating name Virginia: see US Case at 156: British Counter Case at 128.Google Scholar

27 Russell to Lyons (the British minister in Washington), 24 Oct 1863: see PRO 30/22/31 at the National Archives.Google Scholar

28 They had been El Tousson and El Monassir. Palmer's judgment (n 20) 448 is probably right: ‘If they had left our shores, they would probably have done a great deal more damage than the Alabama herself to the mercantile marine of the United States; and the almost certain result would have been war between that country and ourselves, either immediately, or on the termination (not then far distant) of the Civil War.’Google Scholar

29 It was not originally proposed that the Solicitor-General should appear, but Russell urged that it was ‘no common case and requires the whole force of our Law Officers’: Russell to Sir G Grey, 13 June 1863, PRO 30/22/31 at the National Archives.Google Scholar

30 The defendants included Bulloch, but he (like some of the other defendants) did not appear. The report of the trial (The Attorney-General v Sillem and Others (1863) 3 F&F 646,176 ER 295) is of note, first, because the reporter's footnotes exceed by some margin the length of the report, and secondly, because the reporter, in a critical running commentary, made plain his own opinions on the argument and the direction to the jury.Google Scholar

31 At 670 and 307 of the respective reports.Google Scholar

32 At 672 and 308 of the respective reports.Google Scholar

33 At 676 and 311 of the respective reports.Google Scholar

34 The Lord Chief Baron tried to thwart such a challenge. When the Attorney-General reminded him of something he had said about the Alabama, the Chief Baron retorted that ‘the Alabama had no more to do with the matter than Noah's Ark’. See Palmer, R (n 20) 443–7.Google Scholar

35 The later history of the case was more tortuous than this summary suggests. In the Court of Exchequer, Pollock CB and Bramwell B upheld the Chief Baron's trial direction, Channell B and Pigott B gave judgments against it. Since the court was equally divided, Pigott B as the junior judge withdrew his judgment: The Attorney-General v Sillem and Others (1863) 2 H & C 431, 159 ER 178. The Crown appealed to the Court of Exchequer Chamber which held, by a majority of 4:3, that the appeal was not competent: The Attorney-General v Sillem and Others (1864) 2 H&C 581 ER 242. This conclusion, by a majority of 4:2, the House of Lords endorsed: The Attorney-General v Sillem and Others (1864) 10 HLC 703, 11 ER 1200. Having left England in April 1864, the ship changed her name to Mary and was seized again in Nassau in December 1864. The government's charges against the ship again failed, but the trial was not held until 22–23 May 1865, by which date the war was over. Thus when released by order of 30 May 1865 she was of no use to the Confederacy. The record of the proceedings is preserved in the Department of Archives, Nassau.Google Scholar

36 Moore, (n 3) 496–7;Google ScholarBalch, TWThe Alabama Arbitration (Books for Libraries Press New York 1900) 20–4.Google Scholar

37 Balch (n 36) 40–9. His was not a lone voice: in 1868 Charles Bowen published a monograph, The ‘Alabama’ Claims and Arbitration, in which he advocated arbitration and questioned the strength of the British case on the Alabama itself.Google Scholar

38 Palmerston, died in October 1865 and Russell was succeeded by Clarendon.Google Scholar

39 A government led by Derby took office in June 1866, with Stanley as Foreign Secretary.Google Scholar

40 This proposal surfaced, in one form or another, on several occasions over these years, but it never attracted universal American support. There were always those who regarded British withdrawal from the Western hemisphere as inevitable in the fullness of time, and were unwilling to discount the Alabama claims in consideration of a benefit which would accrue anyway. There were also those who thought, as the British did, that any cession of Canada would require the consent of the Canadians. See Cook, AThe Alabama Claims (Cornell University Press Ithaca 1975) 38–40, 47, 80, 82, 112,125, 130, 132, 135, 147, 159 (hereafter ‘Cook’).Google Scholar

41 This objection was raised in November 1866, January 1867, and October 1868: see Cook (n 40) 35–6,40; Moore (n 3) 499.Google Scholar

42 Johnson, 's first choice of minister was General George B McClellan, equally unsuccessful as commander of the Army of the Potomac in 1861–2 and as Democratic nominee for the presidency.Google Scholar

43 See Cook (n 40) 502–3.Google Scholar

44 ibid 57–65.

45 Moore, (n 3) 509–10. See also Cook (n 40) ch 4. Sumner was influential as Chairman of the Senate Foreign Relations Committee. His bile may have owed something to his failure to secure appointment as Secretary of State by the incoming President Grant. John Bancroft Davis, a strong admirer of Hamilton Fish, described Sumner as ‘in public life, irascible, self-asserting, arrogant, and incapable of bearing contradictions’, ‘full of conceit, devoid of humor, and without tact’: Davis, JBMr Fish and the Alabama Claims (Books for Libraries New York 1893) 14, 16.Google Scholar

46 Factually, these complaints were not without foundation. The losses inflicted on Northern merchant ships did lead to greatly increased insurance premiums, many Northern ship-owners registered their vessels under foreign flags, and knowledgeable commentators have asserted that the American merchant marine never fully recovered from the Civil War: see Owsley, FL JrThe CSS Florida: Her Building and Operations (University of Alabama Press 1965) 9: Cook (n 40) 15.CrossRefGoogle Scholar

47 Cook (n 40) 76.Google Scholar

48 ibid 76.

49 ibid 79–80.

50 ibid 84.

51 ibid 104. Grant's first appointee as Secretary of State, Elihu B Washburne, served for only a week. Fish declined to be nominated, but found his name had already been passed to the Senate, and then agreed to serve for a period. In the event, he was Grant's longest-serving cabinet member. See also American National Biography (OUP Oxford 1999) vol 7 at 948.

52 Moore, (n 3) 513–15; Cook (n 40) 109.Google Scholar

53 Moore, (n 3) 518; Cook (n 40) 116.Google Scholar

54 Moore, (n 3) 519–22; Cook (n 40) 117,150–8.Google Scholar

55 Cook (n 40) 123,164.Google Scholar

56 ibid 131–2,162.

57 ibid 145.

58 Moore, (n 3) 532; Cook (n 40) 166.Google Scholar

59 Nelson, (1792–1873) was appointed to the state bench in New York in 1823, rose to be Chief Justice of New York, and was appointed to the Supreme Court in 1845 when the preferred candidates declined to be nominated or were turned down. He resigned from the Supreme Court after nearly 50 years' judicial service in 1872.Google Scholar

60 Hoar, (1816–1895) had held judicial office in Massachusetts and was ‘astonished’ when Grant made him Attorney-General in March 1869. Grant also nominated him for appointment to the US Supreme Court, but the Senate rejected him in February 1870 and he lost office as Attorney-General four months later.Google Scholar

61 Williams, (1823–1910) was a former Democrat who had become a Republican senator. He advocated the impeachment of President Johnson and served as Attorney-General of the United States 1872–5. In December 1874 Grant nominated him as Chief Justice of the United States (after Roscoe Conkling of New York had declined), but he was strongly and widely criticized as lacking appropriate qualifications, and also on personal grounds. He asked that the nomination be withdrawn.Google Scholar

62 He became a Marquess in recognition of his service in negotiating the Treaty of Washington: Palmer, RMemorials Part JJ, vol 1 (Macmillan London 1898) 212.Google Scholar

63 Davis, (1822–1907) was a lawyer who had served in the US legation in London and acted as US correspondent of The Times. He had been elected, as a Republican, to the New York State Assembly, and became first assistant secretary of state under Fish, an office to which he returned after serving as agent for the United States in Geneva. He later served as minister to Germany, as a judge of the US Court of Claims, and as reporter of the US Supreme Court.Google Scholar

64 Tenterden, (1834–1882), a grandson of the Chief Justice, served as an assistant under-secretary at the Foreign Office 1871–3. He then became permanent secretary.Google Scholar

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66 ibid 172.

67 Moore, (n 3) 540–4; Cook (n 40) 177–82.Google Scholar

68 Cook (n 40) 185.Google Scholar

69 ibid 185. They celebrated with strawberries and ice cream: Hackett, FWReminiscences of The Geneva Tribunal (Houghton Miflin Boston 1911) 66 (hereafter ‘Hackett’).Google Scholar

70 Moore, (n 3) 546. Tenterden compounded his triumph by dropping burning sealing wax on the fingers of the Irish-American sealing clerk, who ‘was so much excited that he burst into tears at the conclusion of the affair’.Google Scholar

71 Artn.Google Scholar

72 ibid.

73 ibid.

74 Artm.Google Scholar

75 Art IV.Google Scholar

76 ArtV.Google Scholar

77 ibid.

78 Art X.Google Scholar

79 Art XI.Google Scholar

80 de Kay, JTThe Rebel Raiders (Ballantine New York 2002) 237–8.Google Scholar

81 Charles Francis Adams by his son CF Adams, at 382; Duberman, MCharles Francis Adams, 1807–1886 (Houghton Miflin Boston 1960) 342–3. Roundell Palmer did however record his opinion that the appointment of Adams was ‘undoubtedly contrary to the traditional rules of judicial etiquette’: Memorials Part II, vol 1 at 232.Google Scholar

82 Adams, (1807–1886) was the son and grandson of presidents, both of whom served as minister in London. During his father's term, Adams was educated in England. He read law in the office of Daniel Webster, but was drawn into politics, first as a Whig, then as a leader of the Free Soil party, whose (very unsuccessful) vice-presidential candidate he was in the election of 1848. He migrated to the Republican party and was elected to the House of Representatives in 1858. In 1860 he supported Seward, on whose recommendation he was sent to London in 1861, serving until June 1868. In 1872 he offered himself as the Liberal Republican candidate for the presidency, narrowly losing to Horace Greeley. His service in London and as the American arbitrator at Geneva has been rightly seen as the high point of his public career.Google Scholar

83 Cockburn, (1802–1880) had a lively youth, having on one occasion to escape from bailiffs by climbing out of the window of the robing room at Exeter Castle, and also of fathering two illegitimate children. He enjoyed great success in practice and also in politics, where his defence of Palmerston in the Don Pacifico debate earned him appointment as solicitor-general, from which office he was promoted to be attorney-general. After three years as Chief Justice of Common Pleas he became Chief Justice of the Queen's Bench, declining the peerage offered on the ground that he d id n o t wish to be a peer as Chief Justice. When, five years later, he sought the peerage it was refused by the Queen on the ground of his notoriously bad character. He opposed the Judicature Acts, but became the first Lord Chief Justice of England. He was n o t highly regarded as a judge, and excited considerable controversy.Google Scholar

84 Cockburn to Russell, 6 Oct 1872, PRO 30/22/17A at the National Archives.Google Scholar

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86 ibid 215; Cushing, CThe Treaty of Washington (Harper Bros New York 1873) 78–83.Google Scholar

87 An antique silver bowl weighing 120 lbs presented by HMG to Staempfli was the centre piece of an exhibition held at the Hotel de Ville in Geneva in 1972 to mark the centenary of the award.Google Scholar

88 Supplement to the London Gazette, 30 Sept 1972: see FO 881/2086 at the National Archives.Google Scholar

89 Moore, (n 3) 648–9. Davis reported to Fish: ‘It is impossible to convey to you the interest of the scene, especially when Mr Staempfli made the declaration that his own mind was nearly made up on the question at issue.’ See also Cushing (n 86) 83.Google Scholar

90 Hackett, (n 69) 84.Google Scholar

91 1800–79. He had been (also unsuccessfully) nominated as Secretary to the Treasury in 1843. He had considerable experience as a lawyer, a politician, and a diplomat.Google Scholar

92 See Hackett, (n 69) 126. The American National Biography (OUP Oxford 1999) vol 5 at 909 speaks of his ‘aggressive Anglophobia’.Google ScholarHis account of these proceedings in The Treaty of Washington (Harper Bros New York 1873) is highly chauvinistic.Google Scholar

93 1818–1901. He was counsel for Hayes in the disputed presidential election of 1876. When President Hayes forbade the consumption of wine at state banquets, Evarts observed: ‘Water flows like champagne at the White House’: Hackett (n 69) 233. As a senator he pioneered the ‘Evarts Act’, which introduced circuit courts of appeals. He became a close friend of Palmer.Google Scholar

94 1816–1888. Waite's appointment followed the refusal of Roscoe Corkling to be nominated and the rejection of Williams and Cushing. Rockwood Hoar said that Waite was ‘the luckiest of all individuals known to the law, an innocent third party without notice’.Google Scholar

95 1812–1895. As befitted an alumnus of two public schools (Rugby and Winchester) and three Oxford colleges (Christ Church, Trinity, and Magdalen), Palmer won the highest academic honours. He also wrote the Newdigate Prize Poem and was the first Eldon law scholar; acted as counsel to the University of Oxford; served as deputy steward; and became High Steward on the death of Lord Carnarvon in 1891. He became Solicitor-General in 1861 and Attorney-General during the Alexandra litigation in 1863. He was said to have refused a fee of £30,000 for conducting the Alabama arbitration, but (per the DNB) ‘is known to have accepted remuneration on a satisfactory scale’. (The American counsel received $10,000 each and expenses: Moore (n 3) 666.) He succeeded Lord Hatherley as Lord Chancellor in October 1872 and became the Earl of Selborne, returning to the woolsack in 1880, but declined to do so in 1886 because of his opposition to Home Rule.Google Scholar

96 1820–1882. He had been Palmer's pupil at the Bar. On his return from Washington Bernard became a Privy Councillor and was awarded a DCL. He resigned his chair in 1874, but served on the University of Oxford Commission in 1877 and was one of the original members of the Institut de Droit International, presiding at its Oxford conference in 1880.Google Scholar

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104 ibid 627.

105 ibid 639.

106 ibid 629. But the reliability of this protocol has been questioned: see Cook (n 40) 208–10.

107 The accounts given by, for instance, Cushing, CThe Treaty of Washington (Harper Bros New York 1873) 39 passim and R Palmer (n 97) Part II, vol 1 227 passim, could scarcely be more different.Google Scholar

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111 Russell regarded the arbitration process as an attack on his personal honour and integrity. Writing to Gladstone on 17 Sept 1865 he reviewed the questions that arbitrators might be asked to determine: ‘1. Was Lord Russell diligent or negligent in the execution of the duties of his office? 2. Was Sir Roundell Palmer versed in the laws of England, or was he ignorant or partial in giving his opinion to the Government?…’ And so on. Russell concluded: ‘I feel that England would be disgraced for ever if such questions were left to the arbitration of a foreign Government’. See PRO 30/22/21 at the National Archives. When the dispute about the terms of reference arose he tried to raise a vote of censure on the Government. After the Geneva Tribunal had made its award, Russell complained that he had been ‘thrown over’ by Gladstone and Granville, an accusation which the Duke of Argyll considered ‘not at all just’. The Duke observed: ‘I must remind you that our conduct when you were Foreign Minister, was not unanimously considered by ourselves so certainly right as you now hold it to be.’ See PRO/30/22/17A at the National Archives.Google Scholar

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115 Eg that the Confederates had been preferentially treated in the supply of munitions and that British ports had shown Confederate vessels excessive hospitality: see Parts IV and IX of the British Counter-Case.Google Scholar

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136 Hackett, (n 69) 345–6; Cushing (n 107) 128. According to Cushing, at 128, Cockburn ‘disappeared, in the manner of a criminal escaping from the dock, rather than of a judge separating, and that forever, from his colleagues of the Bench’.Google Scholar

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146 ibid, chs 1 and 2.

147 Le Kay, JTThe Rebel Raiders (Ballantine New York 2002) 250–1.Google Scholar

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