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Collection of Speeches in
Congress on the Geneva Av;ard
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AT LOS ANGELES
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DISTRIBUTION OF THE GENEVA AWARD.
The plain and common rules of honesty and fair dealing are as obligatory
in arbitraments between nations as between individuals.
SPEECH
OF
HON. ELIJAH WARD,
IN THE
HOUSE OF REPRESENTATIVES,
^AY 23, 1876.
Our country obtained the money through the award of a great international
court representing the leading civilized nations, with the hope not only
of solving the difficulties which then existed, but of establishing a
precedent which wrnild tend to promote human progress by
substitutingjust and honorable arbitrament for settlements
through brute force and the horrors of war. We are
bound to respect the rulings of the court; and
those whose good opinion is best worth
deserving will judge us by the disposal
we make of the funds committed
to our charge.
WASHINGTON
1876.
DISTRIBUTION OF THE GENEVA AWARD.
The plain and common rules of honesty and fair dealing are as obligatory
in arbitraments between nations as between individuals.
SPEECH
OF
HON. ELIJAH WARD,
IN THE
HOUSE OF REPRESENTATIVES,
yVlAY 23, 1876.
Our country obtained the money through the award of a great international
court representing the leading civilized nations, with the hope not only
of solving the difficulties which then existed, but of establishing a
precedent which would tend to promote human progress by
substituting j us t and honorable arbitrament for settlements
through brute force and the horrors of war. We are
bound to respect the rulings of the court; and
those whose good opinion is best worth
deserving will judge us by the disposal
we make of the funds committed
to our charge.
WASHINGTON
1876.
I <■ I
TO
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Distribution of tlie Geneva ATravd.
SPEECH
OF
HON. ELIJAH WAHD.
The Honse having resolved itself into Committee of the whole on the State of
the Union, ilr. Si'iikgeu in the Chair, and proceeded to consider the bill making
\ appropriations for the Indian Department —
Mr. Ward said :
"■ jj Mr. Chairman: Before proceeding with the remarks which I pro-
^ pose npou the distribution of the award made by the tribunal at
^ Geneva for losses sustained liy citizens of the United States, I ask
J^ the Clerk to read a paper which I send to the desk.
The Clerk read as follows :
> To the honorable tlie Senate and Ilouse of Representatives of the United States of Amer-
^ ica in Congress assembled :
^ The undersifoied, marine underwriters, owners of claims hy reason of which the
\ money paid by Groat Britain was awarded by the tribunal of arbitration at Geneva,
'j^ respectfully remonstrate against the passage of the House bill No. 2C85, reported to
~\ the House of Representatives by Mr. Loitn, from tlie Judiciary Committoo. The pro-
> posed bill disregards the decisions and proceedings of tlio tribunal in tlio rejection
^ and aUowanco of claims, denies or ignores the Just rights of lawful owners of prop-
erty tlie value of whicli entered into the award, and fails to .satisfy the trust, duty,
and obligation of the Government of the United States toward those upon or by
vj rea.son of whose legal rights it obtained the award andcoOectod the money. And
the provi.-tion for admitting tlieso rightful chiiniants to a .share of a supposed sur-
jdus, afttrr bc.ntowal of the fiinil upon invalid and improperly preferred claims,
t^ which were wholly rejected by the tribunal and are necessarily indeliuito in amount,
does not in anywi.se obviate or correct the injustice.
\ E.ich of your petitioners, which is a mutual society, further respectfully pro-
tests against bestowal of the monej- of the society upon what are termed war-pre-
mium clainiant.i, who do not embrace but a fragment of its dealers, aii<l who do em-
brace strangers not flealing with it at nil. Such a disposition of the money would
not only bo in disregard of just and legal right, but would violate the fundamental
contract entitling each member to his just propoition of the common reclamations.
It would alsoniin;;le and unjustly confnsi! the ])roi)eity of one .society audits mem-
bership with that of nuothor society and its membership.
426167
Tonr remonstrants respectfully submit that the bill reported on IGth March last
from the Judiciary Committee, by Mr. Knott, provides for what is demanded by
right and justice and the honor of the nation. And they ask that it maybe passed.
Dated New York, April 4, 167G.
ATLANTIC MUTUAL ES"S. CO,,
By Charles Dennis, Vice-President.
COMMERCIAL MUTUAL IXS. CO.,
By Saml. Dkake Smith, President.
UKION MUTUAL INS. CO.,
By r. S. Lathop, President.
MERCANTILE MUT. INS. CO.,
By Edwaud "Walter, President.
SUN MUTUAL INS. CO.,
By J. P. Paulisox, President.
NEW YORK irUTUAL INS. CO.,
By T. B. Blucher, Jr., Vice-President,
PACIFIC MUTUAL INSURANCE CO.,
By Jno. K. Myers, President.
THE GREAT WESTERN INS. CO.,
By Feed. Motz, President.
Mr. WAED. Mr. Chairman, at the request of many of my constit-
uents, M-ho are deeply interested, and in accordance with my own
sense of right and duty, I present to the House as briefly and dis-
tinctly as practicable my views on the important subject of the dis-
tribution of the funds awarded by the tribunal of arbitration at Ge-
neva. In my opinion the length of the discussion regarding it is to
be attributed rather to the magnitude of the amount involved than to
any intrinsic difficulty in luiderstandiug or determining the princi-
ples of law and justice so far as they are applicable to this case.
During the war various insurance companies and private claim-
ants sent memorials to the Department of State, setting forth their
demands against Great Britain for losses growing out of the destruc-
tion of vessels and their cargoes by the cruisers of the insurgents, and
requested the interposition of the Government of the United States
in their behalf. The imderwriters, confidently relying on the ulti-
mate protection of their rights by their country, from time to time,
as they paid for vessels and cargoes destroyed by the cruisers, com-
municated to the State Department full, formal proofs of the facts
and of the value of the losses. The Department through the Hon.
William H. Seward, then Secretary of State, punctiliously (as was his
duty) replied to each of the statements thus made, and transmitted
the claim "to the United States minister at London, with a view to
such reparation as may be justly due."
Afterward, when the war was over, the Government, through the
Department of State, issued an official notice, dated September 22,
I860, calling upon "citizens of the United States having claims
against foreign governments, not founded on contracts," to forward
them to that Department, urgently a.sked compliance " without de-
lay," and accompanied the notice with rules for thcrguidance of ap-
plicaiits, directing the insertion in each claim of a request " for the
interposition of this Government with the foreign government against
■which the claim is presented." In accordance with the trust thus
confided to our Government by the sufferers, the claims were duly-
presented to the government of Great Britaiu and suhsequeutly to
the tribunal at Geneva.
In pursuance of the same line of manifest duty, reqftiring every
government to aftord due protection to its citizens or subjects, Mr.
Fish, as Secretary of State, replied to letters inclosing claims of
the class already described, promised that his Department would
" present to the tribunal at Geneva, to be taken into account in es-
timating the sum to be paid to the United States, all claims growing
out of. the acts of the several vessels which have given rise to the
claims generally known as the Alabama claims," and requested that
they might be presented in due time.
The claims were duly presented by our Government to the tribunal
at Geneva, in accordance with the treaty of Washington. Through-
out all the proceedings they were uniformly treated as the claims of
private parties, who on their part placed implicit, unquestioning trust
and confitlence in the due protection and good faith and integrity of the
Government. All doubt or question as to their rights or the disposal
of the funds is an after-thought, having no origin iu the tribunal and
contrary to its intentions and conclusions.
In formally submitting its case to the tribunal, the Government of
the United States iilaced first in the general statement of the claims
for which it asked reparation "the direct losses growing out of the
destruction of vessels and their cargoes by the insurgent cruisers."
The other injuries for which compensation was sought were —
The national expenditure in tlie pursuit of those cruisers ;
The loss in the trausfer of the American commercial marine to the
British flag ;
The enhanced payments of insurance ;
The prolongation of the war, and the addition of a large sum to the
cost of the war and the suppression of the rebellion.
Great Britain objected to the presentation of the three latter classes
of claims, and refused to proceed with the arbitration unless they were
withdrawn. The United States refused to withdraw thorn. A failure
of the arbitration was imminent. At tliis crisis, the president of the
tribunal, on behalf of all the arbitrators, announced tliat they, after
the most careful perusal of all that had been said on the part of the
Govenimcnt of the United States in respect to these classes of claims,
had "arrived individually and collectively at the conclusion that
tliesc claims do not constitute, upcm the j)rinciplcs of international
law applicable to sucli cases, good foundation for an award of com-
pensation or computation of damages between nations, and should
6 .
upon such principles bo wholly cxcludcil from the consideration of the
tribunal in making its award." The United States authorized their
ageut to state that they accepted this declaration as determinative
of the judgment of the arbitrators on the important question of pub-
lic law involved, and that these classes of claims might be excluded
from consideration in any award that might be made.
Subsequently, by protocol 27, dated August 29, 1872, a majority of
the tribunal decided to reject the claims for expenditures incurred in
pursuit of the cruisers, on the ground that they were comprised in
the cost of the war.
Thenceforth there remained only for consideration by the tribunal
the claims for direct losses growing out of the destruction of vessels
and their cargoes by the insurgent cruisers. The basis of the award
was further and distinctly narrowed down by the tribunal to the pri-
vate losses growing out of the destruction of vessels and their car-
goes by the acts of the Alabama, the Florida, and their tenders, and
the Shenandoah after she left the j)ort of Melbourne. In accordance
with this decision the arbitrators requested the Government of the
United States to furnish them with definite information as to the
amount of such losses, and, complying with the request, on the 19th
of August, 1872, a schedule was presented on behalf of our Govern-
ment enumerating specifically the vessels destroyed by the cruisers
for whose acts Great Britain was held to be liable, showing the value
of each vessel so destroyed and of her cargo, as proved by the claims
filed for it, including those of the insurance companies.
The judgment of the tribunal was that there had been a violation
of the obligations of neutrality on the part of Great Britain ; that she
was consequently " responsible for the American shii^s which were
destroyed by the vessels in question." In view of this decision, the
only remaining duty of the tribunal was either to ascertain and
award to the United States such a sum in gross as was deemed suffi-
cient to cover those private losses, as it was empowered to do by the
seventh article of the treaty, or to remit the duty of auditing each
claim for the losses to a board of assessors, as provided in article 10.
The former was deemed the most satisfactory course. Its adoption
waa requested on the part of this country, and the gross sum of
$15,500,000 was accordingly awarded to the United States. The ma-
jority was four to one. The award, of course, included alike such of
the destroyed vessels as were insured and those which were uninsured.
In determining what sum in gross should be awarded, the tribunal con-
sidered the claims on the proofs submitted to it, those of the insu-
rance companies being the most conspicuous among the claims thus
submitted.
The Unite<l States have now received the money, have admitted
that it is not their own, and established a special court for its dis-
tribution ; but have closed its doors against every insurance company
Tvbicli cannot show tliat its whole business during the four years of
the war, so far as the war risks were concerned, was unprofitable.
At this point it becomes necessary to consider the principles on
which marine insurance is conducted among commercial nations. It
has always been regarded as a proposition thoroughly established,
that whatever is recovered of the ship or cargo insured is the prop-
erty of the insurer who has j)aid the original owner the value of it.
It would be superfluous to spend time in proving this undeniable
proposition. Daniel Webster said of it :
There is no more universal maxim of law and justice througliout tlie civilized and
commercial world than that an underwriter who has paid a loss on ship or mer-
chandise to the owner is entitled to whatever may be received from the property.
His right accrues by the very act of payment. And if the property or its proceeds
be afterward recovered in whole or in part, whether the recovery be from the sea,
from captors, or from the justice of foreign states, such recovery is for the benefit of
the underwriter.
It was tipon this principle that the claims of our people to repara-
tion for the British violations of the laws of neutrals were advanced
by our Government. On the part of Great Britain the justice of our
case thus urged was distinctly admitted in the words —
The American insurance companies who have paid the owners as for a total loss
are in our opinion entitled to be subrogated to the rights of the latter, according to
the well-known principle that an underwriter who has paid as for a total loss ac-
quires the rights of the assured in respect of the subject-matter of insurance.
The principle of marine insurance requiring that the parties who
have paid the owners in full for their losses shall have whatever
may be afterward recovered is seen, even on slight reflection, to be
founded on morality and justice. It resembles that involved where
payment of a note is guaranteed for a pecuniary consideration, and, the
maker refusing to pay, the note is paid by the guarantor, but after-
ward collected from the maker. Obviously the guarantor who haa
paid the owner in full is entitled to all that is recovered.
Or, to take an illustration yet more closely analogous to the case in
point, a vessel fully insured does not arrive at the port when she
is expected. The parties who have agreed to pay for her in case of
loss honorably fulfill their engagement, and fully indemnify the own-
ers. Ultimately the vessel, having been detained by unforeseen
causes, comes to port. To whom does she belong ? Manifestly not
to the original owners. They have been paid, and in law and justice
have transferred their claim to those who paid them. The risk has
l>een run, but there has b(!«n no loss. Yet further from all right
would it be for any third party, even the United States, to step in
and, by the power of force, give the vessel to other parties.
We are not approacliing the subject of the disposal of the amount
paid to us ae if the money were our own, to be given a« wc choose.
Two-thirds of it remain undistributed. It was awarded for specific
purposes and for no others, and the money was paid to the Govern-
ment of our country for parties whose claims were admitted to be
just and who had confided them to the Government as its best and
truest trustee.
The bill reported by the majority of the Judiciary Committee makes
provision for three classes of claims. It provides :
That the first class shall be for claims directly resulting from damage done on
the high seas by confederate cruisers during the late rebellion, including vessels
and cargoes attacked on the high seas, although destroyed within four miles of
the shore, except as provided for in section 11 of said chapter 459. The second
class shall be for claims for the payment of premiums for war risks, whether paid
to corporations, agents, or individuals, after the sailing of any confederate cruiser.
The third class shall be for claims for sums actually paid for insured property de-
stroyed on the high seas by such confederate cruisers, except sums for which
judgments have been entered under section 12 of said chapter.
That judgments entered in the first class shall be paid before judgments of the
second class are paid ; and judgments of the second class shall be paid before judg-
ments of the third class are paid. If the sum of money so unappropriated shall be
insuflicient to pay the judgments of the first class, they shall bo paid according to
the proportions wliich they severally bear to the whole amount of such unappro-
priated sum. If such sum shall be suflBcient to pay the judgments of the first class,
and not sufficient to pay the judgments of the second class, the latter judgments
shall be paid according to the proportions which they severally bear to the residue
of such unappropriated sum. If such sum shall be sufficient to pay the judgments
of the first and second classes, and not sufficient to pay the judgments of the third
class, they shall be paid according to the proportions which they severally bear to
the residue of such unappropriated sum after the payment of the judgments of the
first and second classes.
The Geneva tribunal adjusted only the liability of Great Britain
for the admitted depredations committed by the Florida, Alabama,
and Shenandoah after leaving Melbourne, and their tenders, the Tus-
caloosa, Clarence, Tacony, and the Archer, and excluded from consid-
eration, in the award of damages, the Georgia, Sumter, Nashville, and
other exculpated cruisers. In opposition to this decision, the bill
allows to be presented claims resulting from damage done on the high
seas by all " confederate cruisers during the late rebellion," without
the limitation imposed by the arbitrators and in direct conflict with
the intent and decision of the chosen tribunal.
In equally bad faith is the provision allowing claims for the pay-
ment of the premiums on war risks, which were distinctly ruled out
by the tribunal. This ruling was recognized and accepted by the
agent and counsel who represented our Government at Geneva ; and,
to make yet more glaring the enormity of the proposed bill, the
claims of the insurance companies, which seem to come clearly within
the award, are placed in the last class, without possibility of pay-
ment after the wrongful demands, excluded by the tribunal but
placed by the bill in the first and second classes, have been satisfied.
9
The majority of the Committee say, "with an evident desire to
palliate the transparent injustice they suggest inflicting on the in-
surance companies, that the first class of claims for •which provision
is made in this hill will not, they think, exceed §1,500,000, and the
second class §5,000,000, leaving $4,000,000 for the insurers. A signifi-
cant commentary on these estimates is that the chairman of the Ju-
diciary Committee in the last House, who urged the same interests aa
have priority in the report made by the majority of the present com-
mittee, in answer to a question by another honorable member, replied
that the bill then under consideration, and which is now a law, would
require only $3,000,000 to satisfy the claims for which it provided.
As matter of fact it has taken between eight and nine millions. The
probability is that the first two claims for which provision is made in
the bill reported by the committee would swell in larger proportions.
It would be difficult to find in the whole history of pernicious leg-
islation a precedent more dangerous to public and private integrity
than the perversion of the funds our country has obtained from Great
Britain for specific purposes, wliich were admitted to be just, to other
purposes for which it was not and never would have been awarded.
There is no doubt how the courts would decide, and I regret that a
knowledge that no court in equity would reject the doctrine of subro-
gation as applied to the insurance companies, should be assigned as a
reason why Congress ought to take the matter into its own hands
and make its own will the law. It is bad enough that Congress should
disregard settled princijiles and rules as to the rights of property, but
that such a doctrine as this is avowed in open debate in this House is
deeply to be deplored. Having called to our aid in settling the claims
of our citizens against the British government men of the most pro-
found legal knowledge and the highest character among other lead-
ing nations of the world, tlie attention of civilized mankind is di-
rected toward us. The reputation as well as the honor and honesty
of our country is at stake, and ,if wo fail in our duty, wo shall bo
deemed now and througli future history to have added publicly and
38 a nation a portentous illustration to the already long catalogue of
the too prevalent characteristics of the times.
While tlie facts I have presented are beyond doubt or cavil, the con-
siderations which should regulate our tlocisions as to the Alabama
claims are so unquestionable as to be out of the region of debate. I
repeat that tlio Government of our country obtained the money
through tlie award of a great international court appointed by the
leading civilized nations, with the hope not only of solving the diflfi-
cultifs wliicli then existed, but f)f establishing a ])roc('dcnt which
would t(!nd to promote human progress l)y substituting just and hon-
orable arbitrament for settlements through l)rute force and tlio hor-
rors of war. We arc bound to respect the rulings of the court; and
10
those whoso good opinion is best worth deserving will judge ua by
the disposal we make of the funds committed to our charge.
Our Government obtained the award as damages for the destruc-
tion of private property, and on proofs supplied by its owners. As
the Government itself never owned the property, it cannot possibly
bo the rightful^owner of the damages'or Jhave any right to confiscate
them.
In jtresenting the claims before the court as grounds for damages,
the Government insisted upon their validity. If it has now discov-
ered that they were invalid and that it was an error to present them,
only one alternative remains. The plain and common rules of hon-
esty and fair dealing are as obligatory in arbitraments between na-
tions as between individuals ; and if, after recovery of damages, the
plaintiff" nation ascertains or becomes convinced that the recovery was
founded on wrong or error, it is bound in honor and good faith to re-
turn the sum improperly collected. While Great Britain would doubt-
less be unwilling to receive again any part of the sum she has paid to
the Government of the United States under the award, she cannot be
expected to regard without interest an alienation of the money and
its application to objects for which, by so high a tribunal, it has been
decided that she is not responsible.
The duty of the Government, apart from this alternative, is plain
and simple. Having received the money as the value of private prop-
erty, it la bailee or trustee for the owners. Repudiation of the trust
or bailment by any individual under the same circumstances would
be severely punished in a court of justice. The nation cannot be
sued, but it is therefore so much the more firmly bound by higher
considerations of right and policy to render no less justice than the
private trustee would be constrained to do. All fair consideration
of this subject leads to the same conclusions. The only just claim on
the part of the Government is the one per cent, interest, the difference
between what it has paid and received. This is fairly its right, and
should be covered into the Treasury.
The Government ought freely and promptly to submit all claims upon
which the award was based to proper audit beforo^the distributing
tribunal, where they can be heard upon their merits and decided in
accordance with the principles of. legal right. No other course will
afford substantial or valid protection to the national.Treasury, and any
indirect or arbitrary procedure cannot fail to disgrace our country
in the estimation of the whole civilized world.
o
THE GrENEVA AWARD.
IT AIAY BE DISTRIBUTED ACCOEDIXG TO JUSTICE
EQUITY. AND GOOD FAITH.
HON. GEORGE W. McCRARY.
OI^ lO'WA.,
IN THK
HOUSE OF REPRESENTATIVES,
June 8, 1876.
AV A s; ii 1 2sr G T ( ) X .
1876.
SPEECH
OF '
HOX. GEOKGE W. McCRARY
The Hou.si.' iiaviuj; under consideration the bill (H. E. No. 2685) for the distribu-
tion of the iinapnropriated moneys of the Geneva award —
Mr. McCRAKY said :
Mr. Speaker: I desire to coufiue my remarks upou tliis bill
mainly to what I regard as the fundamental inquiry in the discussion.
That inquiry is whether the fund paid into the hands of the United
States as the proceeds of the Geneva arbitration and award is a
trust fund which we are bound to pay to certain particular claim-
ants, or whether it is a fund paid to this Government to be dis-
tributed according to its discretion, and according to its view of
what is required by equity and justice and good faith toward its own
citizens. This I say is the fundamental question. If it be decided,
as I think it must be, that the Government of the United States may
exercise its discretion in the disposition of this fund, then I think
there will be bitt little difficulty in determining what ought to be
done with it.
One class of the claimants, the insurance companies, represented
by the minority of the committee, have already been enriched by war
premiums charged and received on account of the very causes which
gave rise to the treaty of Washington and resulted in the Geneva
award. In order that the importance and the significance of this
question may be seen by the House, I beg to state a few facts which
have now passed into history and will not be questioned.
Very soon after the outbreak of the war of the rebellion Great
Britain, animated no doubt bj' a hope that her oft-repeated prophecy
of the downfall of this Republic was about to be fulfilled, recognized
tlie belligerent rights of the Confederate States. That recognition
and the events which followed gave rise to what were known as the
Alabama claims, to the treaty of Washington, aiul to the Geneva ar-
bitration. IJfforc that recognition, Mr. Speaker, our commerce was
«afe upon tbf high seas. The confederacy had no ships of war and
no means of producing them. It Wiuj not long after that recognition
until a liirgi' number of confederate cruisers were armed and equijiped
in British ports and let loose upon the high seas to prey upon Ameri-
can commerce and to destroy American shipping. This, in a word,
was the cause of our complaint .-igainst Great Britain. It was main-
tained by the Government of the United States from the very com-
mencenu^nt tliat the losses which our American ship-owners and onr
American merchants suffered by reason of tlieso cruisers wen* canwd
by the hasty recognition of the belligerent rights of tlie confederacy
and by the subse([uent course of the govcrniiKiiit of Great Britain in
permitting rebel cruiserH to fit out in and sail Iroui hi^r jxjpIs. As oua
of the lesulfcs of these causes the rates of insnrance went up to enor-
mous proportions. The iusunince companies •svho insured American
ships chai'ged very high war premiums; and as a result of the busi-
ness of insuring American ships and cargoes against war risks, the
insurance companies, which are now claimants for a portion of this
fund, realized a profit in the aggregate of more than ;f2,000,000. Va-
rious ships were destroyed that were not insured. Persons who paid,
because these cruisers were abroad upon the ocean, large sums of
money as war premiums now ask, and I think justly, to be indemni-
fied from this fund.
It is not my purpose to enter into detail. My task shall be to es-
tablish the proposition that it is within the Y>ower of Congress 'to
exercise a discretion in the distribution of this fund and so to dis-
tribute it as to pay the actual losses, so as to pay. the actual sufferers
the amounts which they lost by reason of Great ]3ritaiu's wrong. I
maintain, Mr. Speaker, that Congress is not bound to pay over this
money or any part of it into the coffers of corporations that were
enriched by the recognition of the confederacy by Grreat Britain and
by the fact that confederate cruisers were permitted to be abroad
upon the ocean. If, sir, this great arbitration between these two
great nations has.hadno other result than this, that the fund received
from Great Britain in order to carry out the award must be carried
into the coffers of corporations that lost nothing but really enriched
themselves by reason of the wrongs for which our damages were
allowed, then our boast as to the honor that has been conferred upon
this nation by the treaty of Washington and the Geneva award is an.
empty boast.
Now, I maintain the proiiositiou that the Government of the United
States has not put itself in this attitude, hnt has from the beginning
to the end of this great and to us highly honorable controversy reserved
the right to distribute this fund as right and justice and good faith
may dictate. If I can settle that proposition, I think there will be
little doubt as to what the House will do witli the pending bill. The-
report of the majority provides a just, an equitable, a fair distribu-
tion of this fund, a distribution such as I am sure the House will not
hesitate to agree to, if we shall tlnd that this discretion exists.
In determining this question it is proper that we consider the treaty
itself, the proceedings at Geneva, and the award of the arbitrators.
I maintain that by reference to all. of these it is apparent that the
Government of the United States did retain control of this fund and
the right to dispose of it to actual sufferers by reason of England's
wrong, bounded only by the subject-matter of the arbitration. '
But before I come to consider the main <|uestion, let me call the at-
tention of the House to a preliminary consideration. This question,
M)'. Speaker, has once been decided by Congress. After a long de-
bate the two Houses agreed, and a bill was passed which is uov/ the
law of the land which recognizes tlie doctrine for which I contend,
and which provides that the insurance companies which made money
out of war premiums sliall only recover the amount of their actual
losses. The language of the law is as follows :
No claim sliall be admissible or allowed by .said court, by or in behalf of any in-
surance company " * * unless such claiiuaEt shall show to the satisfaction of
said court that during the late rebellion tlie sum of its * * * losses in respect
to its * * " war risks exceeded the sum of its * ' * premiums or other
gains upon or in respect to such war risks.
Now, Mr. Speaker, under that law the proper court has distributed
about one-half of this large fund. Upon that princi])le about ten mill-.
ious of the twenty milliou dollars originally iu tlic Treasury, iuchul-
iug interest and premium ou gold, has been distributed. Now, I do
not say that this Congress may not reverse the policy of the last Con-
gress : but I do say that as a matter of public policy it is exceedingly
impolitic for one Congress upon a subject of this character to change
the policy established by another.
Let us look at it for a moment. Congress has deliberately decided
upon a rule by which this fund shall be distributed. By that rule a
large class of claimants ai'e denied relief because they are not» losers,
l)ut gainers, on account of the acts of which the Government com-
plained and for which the Government received this money. Under
this rule, established by solemn act of Congress, we have proceeded
until the fund is one-half exhausted.
Now, sir, if that rule is reversed, if it be now declared that the in-
surance companies are entitled to this money, no man can say the
fund will hold out until they are all paid, because one-half of it has
been distrilmted upon the other theory. And if the fund does not
hold out, who will undertake to say Ihese corporations will not suc-
cessfully demand the payment of their claims out of the Treasury of
the United States for any balance over and above the amount of the
fund ? I think, Mr. Speaker, that a question of this character once
decided, once passed into law, ought not to be changed unless there be
very grave and controlling reasons for so doing, especially after a
large part of the fund has beeii distributed.
But, sir, I proceed to show, as I believe I can, from the treaty itself,
from the proceedings at Geneva, and from the award, that the Gov-
ernment of the United States has retained the control of this fund ;
tliat it was paid to this Government as a nation, without any require-
ment that it should be distributed to particular claimants, but with
the distinct understanding that the Government retained the right
to flistriljute it in its own discretion.
Mr. HOOKER. Will the gentleman allow me to ask him a ques-
tion for information ?
Mr. McCKARV. Certainly.
Mr. HOOKER. Are you prepared to state what proportion of this
award has been paid to tjiese insurance companies iu comi)arison to
what has been ])aid to actual losers ?
Mr. Mc'CRARY. Mr. Speaker, under the law as it stands insurance
companies are entitled to their actual losses, and lam told that they
liave claimed and recovered a small amount, a very small amount, be-
<;ause there were few companies that did not make money out of war
nsks.
Mr. CAT'EFH-'LI). Tiie amount of claims put in was $48,001), and
they proved .Sl'i,"Oii.
Mr. McClf AR^'. Now, sir, I insist under the treaty it was intended
that if a sum in gross should be paid to the United States, that sum
should be paid to the United States as a nation without restriction as
to the disi»()sition of the fund by this Gyvernment. By reference to
the treaty it will Ite seen that two plans were proposed for the settle-
ment of tlu-se claims, lirst it was proposed that the arbitrators
might, if thry saw fit, provide for the api)ointment of assessors be-
fore whom all jirivate claimants should present tiieir claims and prove
tliem np. Or, if that was not agreed to, then it was proposed and
l>rovlded that a sum in gross might be paid l>y the government of
(Jreat Britain to the (Jovernment of the t'nited States.
And now I want to call the attention of the House to the two arti-
cles of the treaty, th(! one which provides for tlie ajipoiiitiiientof as-
:61G
^
^
6
sosBors, and tbe other which provides for the payment of a sum in
gross. I ask the especial attention of the House to the difference
between these two articles, because the difference is very striking,
and, as I think, very significant. If the proposition to refer the
claims to assessors had been adopted, then it was provided that
those assessors should be guided and governed in the allowance of
claims by the decisions and findings of the board of arbitration. But
in case a sum in gross was allowed to the Government of the United
States, a very different provision was made. In the latter case there
is no limitation to be found in the award except this : that the sum
paid to the Government of the United States shall be in satisfaction
of all the claims referred to the tribunal.
Let me call the attention of the House to the exact language of
these two articles, and comment briefly on them. Article 7, which
relates to the payment of a sum in gross, provides as follows :
In case the tribunal finds that Great Biit-ain has failed to fulfill any duty or du-
ties as aforesaid, it may. if it think proper, proceed to award a sum in gross to be
paid by Great Britain to the United States.
For what? For such claims as the arbitrators have specifically
allowed ? For any particular claims, to satisfy any class of claims to
the exclusion of others ? No, sir.
To be paid by Great Britain to the United States for all the claims referred to it.
For all the claims referred to the tribunal. Now, sir, that is pecu-
liar language, and it must have been inserted in the treaty for a pur-
pose. I shall show, Mr. Speaker, presently that this language is re-
peated, with little variation, several times in the treaty and in the
award.
Bnt when you contrast it with article 1(», which provides for the
appointment of assessors, the House will discover at once why this
difference, why this peculiar language in one article which is not
found in the other. Article 10, which relates to the allowance of
claims by assessors, is as follows :
In case the tribunal finds that Great Britain has failed to fulfill any duty or dutie.s
as aioresaid and does not award a sum in gross, the high contiacting parties agree
that a board of assessors shall be appointed to ascertain and determine what claim.s
are valid and what amount or amounts shall be paid by Great Britain to the United
States on account of the liability arising fiom such iailuie as to each vessel —
Here is the point I call the attention of the House to —
as to each vessel accordinj to the extent of sxi^h liability, as decided by the arbitrators.
Now, Mr. Speaker, why was not that language in article 7 ? Why
was no limitation put upon the Government of the United States as
to the disposition of this fund ? It was provided in case assessors
were appointed they should be guided by the decisions of the arbi-
trators, and it was provided if a sum in gross was paid to the United
States it should be for "all the claims referred to the tribunal."
Now, sir, it is very plain that a different mode of distribution was
intended under section 10 from that which is provided tinder section
7. I will show as I proceed why it was that the arbitrators were
careful; and why it was that fhis language was inserted ; that it was
simply and solely because it was the settled policy of the United
States to insist that this Government shotild not b.e committed as to
the mode or manner of the distribution of any gross sum that might
be allowed. Hence it was that when they provided for a sum in
gross they provided nothing but that it .should be in satisfaction of
all the claims ; but when they came to talk about submitting these
claims to assessors, then they inserted the restrictions.
It was of importance to Great Britain in case the claims were to be
settled by aeseBSors, "without any maximum sum being named in the
treaty, that the rules should be laid down whereby these claims should
be determined and the amount paid to each claimant should be fixed.
But, sir, when it was proposed to pay a sum in gross to the United
States in satisfaction of all claims, it became a matter of no conse-
quence whatever to Great Britain what the United States did with
the money.
I shall recur again to some other features of the treaty before I con-
clude, but I pass now to show by the proceedings at Geneva tbat this
Government is not committed as to the disposition of this fund. Our
policy on the subject was declared in language that cannot be mis-
understood in the instructions given by this Government to our coun-
sel at Geneva, from which I read as follows ; and as I regard this as
very significant, I would like to have the attention >of the House to it :
The President desires to have the subject discussed as one between the two gov-
emments, and he directs me to urge upon yon stiongly to secure if possible the
award of a sum in gross. In the discussion of this question, and in the treatment
of the entire case, you will be careful not to commit the Government as to the dis-
position of what may be awarded. » * * The Government wishes to hold^itself
free to decide as to the rights and claims of insurers upon the termination of the
case. If the value of the property captured or destroyed be recovered in the name
of the Government, the distribution of the amount recovered will be made by this
Government, without committal as to the mode of disti'ibution.
Now, Mr. Speaker, if the counsel of the United States before the
tribunal at Geneva did not violate the instructions given by this Gov-
ernment, then I say that this Government is not cominitted as to the
mode of distribution. And gentlemen who come here representing
insurance companies and claiming that this Government is committed
by the proceedings and the award at Geneva must do so upon the as-
sumption that this positive, direct, imperative, and explicit instruc-
tion given by the Government to its own counsel was disregarded
and was not obeyed.
Sir, if it became necessary in the course of that negotiation for the
counsel of the United States to submit to a decision which would
compel this Government to pay the.se §20,000,000 into the cofi'ers of
<M)rporations that had been enriched by England's wrongs, if it be-
came necessary in the course of that negotiation for our counsel to
iletermine the question whether we should withdraw from the arbi-
tration or tie the hands of this Government in tliat way, it would
have been the imiierative duty of the counsel on the part of the
United States to insist upon a withdrawal from the negotiation. They
were commanded by their Government to see to it that the Govern-
ment of the Uijited States was left free as to —
"The disposition of what may be awarded" and especially free " to <Iecidp ae to
tlie rights iin<l claims of insurers upon the termination ot' the case'' and to dis-
tributt! any snni recovered in the name of the govi-rnineiit " without committal a.s
to thi; mode of distribution."
But, sir, the counsfd of this Governmetit wore not false to their
client ancl to their high trust. They did not fail to do their duty.
They did jiot violate the order and the instruction which this Govern-
ment liad given thorn. They were careful fron^ tlie beginning to the
end of the negotiation to make it a negotiation between the two gov-
ernments alone and not in any nmnner to commit this Govornnient
to (In injii.Htice as between itsown citizens. Our counsel, in pursuance
of this instrnclion, saiil to the tribunal :
'I'bt'Ht! claims are all preferred by the TTnited iStafcH as a nation against Great
Hiitaiii an a iibtion, and arc to bu so computed and paid.
Now, sir, what did they mean when they s.-ftd that this money was
to lie jiaiil to the United States as a nation f It follows Inevilatily
8
that it was uot paid to the Uuited States as a meie attoruey or ageut.
01" trustee for any class of claimauts M'hatever.
Mr. HURD. The nation may he a trustee.
Mr. lIcCRARY. The nation, my friend from Ohio says, may be a
trustee. So it may. But you must put your finger on the authority
which makes it a trustee.' Where is the authority in all these pro-
ceedings for saying that this Govemmeut accepted the position of a
trustee, much less of a trustee for the insurance companies or for any
particular class of these chaimants ? Why, sir, from the very beginning
this Government insisted that all these wrongs and injuries result-
ing from the recognition of the confederacy as a belligerent nation
were just claims of damages on behalf of the citizens of the United
States. The President in his message as early as 1870 recommended
to Congress that all these claims be allowed and paid by this Govern-
ment as a basis for a claim to be made thereafter by the United States
against Great Britain. It is not to be presumed, sir, that this Goverp-
ment, for the sake of collecting money^to be paid over to the insurance
companies, intended to sacrifice the rights of other claimants whose
clainjs were far more meritorious.
Well, sir, did the Government of the United States ever waive its
right to distribute this fund in its own discretion ? If so, when and
where ? Not surely by the award which it consented to and under
which it received the 'money, for I will now undertake to show to the
House that the most conclusive of all the proof on this subject is the
award itself, and that, Mr. Speaker, is the instrument under which
the money was paid. If anywhere there is to be found evidence to
show what the United States was to do with this fund, surely it must
be in the award, the final end, conclusion, and summing up of the
whole matter. If the Uuited States is a trustee for any particular
class of claimants, surely we will find some evidence to that efi'ectin
the award which directed the money to be paid.
Now let us turn to the award for a moment and see how careful
the representatives of the Uuited States were to carry out aud not
violate or disregard the injunctions of the Government in regard to
leaving tlie United States perfectly free and in no manner committed
as to the mode of distributing this fund. I read now from the award
itself :
The tribunal, making use of the authority confen-ed upon it by article 7 of the
said treaty, by a majority of four voices to one. awariis to the Uuited States a
sum of $13,500,000 in gold, as tlie indemnity to be paid by Great Britaiu to the
United States, for the sathfa-ction of all the claims referred to the comideration of
the tribunal, conformably to the provisions contained in article 7 of the aforesaid
treaty.
Now, there are two or three things that I wish to call attention to
ixi that part of the award. The money was awarded to the Uuited
States, not to any claimants, not for any particular claimants, but " as
indemnity to be paid by Great Britain to the United States, for the
satisfaction of all claims refeiTed to the consideration of the tribunal."
Now, Mr. Speaker, if the Government of the United States took the
money to be paid to a particular class of claimants, to the insurance
companies, how could it be said that it was received in satisfaction of
all claims referred to in the treaty ? I apprehend, sir, that a man
who owned a ves.sel that was uninsured, worth $50,000, which was run
down and destroyed by one of the rebel cruiser not mentioned as in-
culpated by the tribunal, would think it a strange sort of satisfaction
of his claim to pay the jnoney over to the United States to be applied
to other people's claims, and with the express injunction and piovis-
9
ion that the Goverumeut should uot use oue dollar of it for the liqui-
dation of his claim. A curious sort of satisfaction that. And yet this
solemn instrument, the award of the tribunal, declares that this sum
is paid to the United States in saiisf action of all claims referred to the
consideration of the tribunal, ail of the claims known as Alabama
claims. Sir, it was to be in satisfaction of all the claims because this
Government took the money to distribute as it might deem just.
I read again from this award :
And, in accordance witli tlie terms of article 11 of the said treaty, the tribunal
declares that " all the claims ref ened to in the treaty as submitted to the tribunal are
herebyfuUy, perfectly, and finally settled.'' Fnithermore, it declares that 'each
and every one of the said claims, whether the same may or may not have been pre-
sented to' the notice of. or made, preferred, or laid before the tribunal, shall hence-
forth be considered and treated as finally settled, ban-ed, and inadmissible."
And yet, Mr. Sjieaker, it is seriously contended that by that award
the Government of the United States holds this fund as a mere trus-
tee to pay to a certain class of claimants. The award was not for
specific claims. If such had been the purpose of the tribunal, it
would have been very easy to have expressed it. The tribunal found
no difficulty in expressing its idea in reference to the allowance of
claims bv assessors, and it would have found no difficulty in saying,
'■'the tribunal awards to the United States 815,500,000 for the purpose
. of paying the claims of certain claimants, according to the decisions
of the tribunal." It would have been easy, I say, to have inserted
language' of that sort ; but, sir, our counsel stood there, and they had
been instructed by their Government that they were not to submit to
unj-thing of that sort ; that this Government would uot take the
money if it shoukl be bound by the award to do anything with it
which it did uot believe to be right and just in its dealings with its
own peofde, and hence it was that all Great Britain demanded, all
the United States submitted to was, that it would take this money
and it would be considered a full settlement of all the claims referred
to the tribunal, not all the claims allowed by the tribunal, not all the
claims coming within the interlocutory decisions of the tribunal, but
all the claims referred to the tribunal.
Why, sir, it is even provided th.it this fund paid to the United
States shall be in full satisfaction for all claims whether presented to
the tribunal or uot. How could the United States become a trustee
for the payment of specific claims under an instrument like that ?
A trust is not ordinarily created without .some language being used
implying that there is a trust. Xo man can read the av/ard of the
tribunal wliich I have read to the House and say that it was in the
minds of the arbitrators to liuut, prescribe, and control the mode
of distributing tliat fund.
Why, sir, the men who sat in that tribunal, the men who penned
tluit award, wore great andleanied men ; they knew the force of lan-
guage, and it cannot be that they intended any such thing as this when
they used the language to which I have called the attention of the
House.
But it is ,'*aid Tand this is the. great argument on behalf of the iu-
Hurance ci>;upanios) that the award was founded upon a certain class
of claims, that the amount of it was a-scertained by referring to a cer-
t.tin .sclicdule setting fr)rth the claims chiefly of insurance companies,
and that the Government of the United States obtained this money
by making use of the evidence furnished by the insurance companies,
and tliat now it is bound to pay it over to them. •
Sir, there miglit be Hoinetliing in tliis argument if this statement
10
embraced all the facts in the case; hut it docs not. The gentlemen)
■who make these arguments overlook the fact that wlieu this Govern-
ment submitted to the decision of the tribunal as to the particular
vessels concerning whose acts Great Britain was to be held responsi-
ble — whtn this Government submitted to that decision it did so giv-
ing notice to the tribunal, giving notice to Great Britain, that it re-
served the right to dispose of this fund in its own discretion in distrib-
uting it among its own citizens. Therefore the proposition that this
Government recovered this amount of money upon the showing made
at Geneva by the insurance companies, even if it were true, would
have no controlling influence in the decision of this question. But
it does not appear to be trxie.
It is impossible to say upon what data, upon what evidence, the
arbitrators arrived at the sum of $15,500,000. Various claims had
been presented ; such evidence as the United States could command
was laid before the tribunal. But the Government expressly declared
that it was not to be bound by anything that was presented. The
tribunal ascertained the amount from the best evidence it could get.
But, like the proceedings in a jury-room, it is impossible to say what
controlled or influenced the decision of the arbitrators in fixing the
sum.
Upon that subject perhaps no man is better informed than Mr. J.
Bancroft Davis, who was the agent of the United States at Geneva.
I ask to read to the House what he says about it. Mr. Davis says this :
It is eTident that the arbitrators, to facilitate, the investigations, wished to have
before them a comparative summary of that which the United States claim and the-
criticism of these claims by England, criticism bearing upon the items as well as
upon the classes of claims. These tables, made by the two parties in no vf&y bind
the arbitrators. They are simply indications suited to guide the tribunal across
the mass of figures and details contained in the cases and the evidences of the two
governments.
Again, he says :
It does not appear in the protocols how the arbitrators anived at this amount. I
am informed that it was reached by mutual concessions. The neutral arbitrators
and Mr. Adams, from the beginning of the proceedings, were convinced of the
policy of awarding a sum in gross. * * * "We therefore devoted our energies
toward securing such a sum as should be practically an indemnity to the sufferers.
Whether we have or have not been successful can be determinetl only by thelinal
division of the sum.
I have said, and I based the statement upon what appears in the
record, that our counsel at Geneva obeyed the instructions which
were given them by the Government. I think I have shown that they
did so. But I have a little further testimony upon that subject ; it
is the opinion of one of the counsel who represented the Govern-
ment before that tribunal ; I mean Hon. Caleb Gushing.
Mr. Gushing, counsel for our Government, in liis book upon the
Alabama claims, says :
The awaid is to the United States, in conformity with the letter of the treaty,
which has for its well-defined object to adjust and remove complaints and claims
on the part of the United States.
But the history of the treaty and of the arbitration shows that the United States
recovered not for the benefit of the American Government as such, but of such in-
dividual citizens of the United States as shall appear to have suffered loss by the
a«ts or neglects of the British government. It is, however, not a special trust le-
gally affected by any particular claimant or claims, but a general fund, to be admin-
istered by the tJnitea States in good faith, in conformity with their own conception
of justice and equity within the range of the award. Xor does the tribunal define
formally what claims .shall be satisfied otherwise than in the comprehensive terms •
of the award, which declares that the sum awaided is the indemnity to be paid by
Great Brftain to the United States for (he aatisiactiou of all ciaime referred to the
consideiatioii ot the tribunal.
11
He further says :
The arbitrators, be it observed, do not say tbat it is for the satisfaction of cer-
taiii specific claims among those referred to the consideration of the tribunal, but
of all the claims so referred conformably to the provisions of the tieaty.
And again, and more especially upon the point which I am discuss-
ing, as to whether the counsel of the United States carried out the
instructions given to them by this Government, Mr. Gushing in a
more recent opinion says :
The counsel of the United States were specially instructed by the Goverament
to avoid committing the United States to any theoiy of distribution as regards
either claims or claimants, and especially not to commit the United States in the
mattei- of the claims of insurers.
* X * * * * *
5. The counsel of the United States obeyed the instructions given them, and did
not commit the United States to any theory of distribution whatever, either by way
of irclnsion or of exclusion, but left that question to be deterniiiiecl by the wisdom
and discretion of Congress.
The United States at Geneva laid before the tribunal all the claims of citizens of
the United States which had been presented to the Government, without vouching
for the validity of any of them ; but insisted that the United States were not bound
by the printed schedules, but only by the description of the tre.aty — "all the said
claims, growing out of acts committed by the aforesaid vessels, and generally
known as the Alabama claims.' (ProtocorxXVI.)
So it appears, not only from the language employed in the treaty and
award and from the whole course of the proceedings at Geneva but also
from the statement of one of the counsel of the United States, that
they did obey instructions, and did not commit this Government a»
to the distribution of this fund.
But this very view of the subject has been taken by British statesmen
themselves, and I wish now to call the attention of the House to that.
.Certain citizens of England who had lost by the Alabama, claimed in-
demnity from their own government, insistingthat, inasmuch as Great
Britain had consented to indemnify the citizens of another nation
(the United States) for losses occasioned by those cruisers, that gov-
ernment was bound to indemnify its own citizens in like manner.
And a claim of this character was made in the British Parliament.
But it was not considered as valid. The reason given was that the
government of Great Britain had not indemnified any citizen of the
Unit-ed States ; that the claim of no citizen of the United States had
over been considered or allowed by the Geneva tribunal or paid by
the British government under that award. During the debate in the
British Parliament Mi'. Anderson asked —
If we were obliged to pay for damage sustained by the Americar.s. by reason of
the conduct of the Alabaiiia, why were we not etjually bound to pay foi the damage
tsuKtaiucd by our own subjects by reason of tlie acts of that vessel i
Mr. Gla<lstone, then prime minister, .said in reply :
It appears to be iinjilicd that the government submitted the claims of certain
perHOiiH not subjects of Her Majesty to arbitration.
This is altogethiT a mistake. Mo claims of individuals have been submitted to
arbitration in relation to the Alabama.
What was submitted to arbitration was entirely a question between the two gov-
11 niiiciits.
The report of this debate is to be found in the London Times of May
27, 187;?, and is ouoted in a volume of the Foreign Relations of the
United States, part 1, page :?71.
So that the Htatesnicn of (Jreat Biitain tJieniKolves, who must bo
preHuiiicfl to have bce/i familiar with the proceedings of the tribunal,
to have iinderstfKxl tlie views and purposes of the two goveruiiicuts
concorntMl and of llie tribunal itKcll', have declared upon this subject
12
that the tribunal liMii uotliing to do witli the cLiiius of iiidiviiliials,
and that this was simply a question between the two governments.
Now, Mr. Speaker, I would like to call the attention of the House
to some decisions upon this question which have been rendered by
the court of commissioners of. Ala))ama claims. The very question
now under consideration has been repeatedly brought to the atten-
tion of that court, and has legitimately and properly arisen in the
discharge of its duties under the law ; for a treaty, Mr. Speaker, ia
the supreme law of this land. And if this treaty makes this a trust
fund and vests the title to the fund in certain si»ecific claimants, it is
not within the power of Congress to divert the fund from the claim-
ants who are entitled to it under and by virtue of the treaty itself.
This Question, I say, has been repeatedly made before the court of
commissioners of Alabama claims ; a tribunal, I undertake to say, en-
titled to great respect for its ability, learning, and high character.
Mr. HURD. Will the gentleman allow me to ask him whether, from
the very nature of its constitution, that court is not one of Ihnited
jurisdiction ?
Mr. McCKx^EV. Undoubtedly it is a court of limited Jurisdiction.
What I say is that this question arises properly and necessarily in the
administration of the duties devolved upon that court by the law
under which it is created.
Mr. LORD. Is not the jurisdiction of the court limited only as to
the subject-matter of the claim f Does not the statute confer upon it
the broadest power in other respects ?
Mr. McCRARY. Unquestionably it is limited only as to the sub-
ject-matter over which it shall have jurisdiction ; but there is no limit-
ation upon that court which prevents it from deciding a constitu-
tional question which may arise in the course of an adjudication .
properly brought before it.
Now, in the case of Hubbel! vs. The United States that court uses
this language :
Notliinj: can be found in those proceedings (at Geneva) to limit or control good
faith on tne part of our Government in making auch allowance to claimants before
us, as in their judgment and discretion Congress might think proper. In fact, the
very able committee, to whom the British board of trade referred the in%'e8tigatioii
of the points at issue, say, in their report : '• The proper compensation for the losses
occasioned by the cruisers is the question we have to examine; but with the mode
of distributing that among the various claimants the Auierican Government alouc
:is concerned.'"
[Here the hammer fell.]
Mr. LORD. I ask that the gentleman be allowed to continue ; but
I had agreed that at this point of time I would yield an hour to the
gentleman from Kentucky [Mr. Jones] on another matter. Does the
gentleman from Iowa [Mr. McCka.ry] prefer to continue his remarks
now or at some other time ?
Mr. McCRARY. I shall conclude in a very few minutes, and I pre-
fer to go on now.
The SPEAKER pro tempore. If there be no objection the gentleman
will proceed.
There was no objection.
Mr. McCRARY. Further on in this same opinion this court says:
The Government of the United States accepted the sum awarded in full settle-
ment of all the claims comprehended in the terms of tlio treaty, and soon after-
■ward Congress passed the act providing for its distribution among the claimants,
■which is to be our chief guide in the actual work of distribution. It is clear that
the Government had the right to prescribe the terms on which claimants should
jpresent their claims. They were not strong enough to compel payment of the
jnoney by Great Britain, and when this GoveruiDent obtained it the claimants had
13
no legal rights to it except that which this Government, by ita own acts, chose to
iMM-onl. They must, therefore, take their respective shares' of it subject to all the
coiiilitions which the Governmeut has thought fit to appoint, or not tske them at
all.
I might read from numerous opinions of that court ; but I will con-
tent myself with reading only from one more, which is a very recent
case. I refer to the case of Khind vs. The United States, in which the
court say :
The award was iiiailo in iavui- oi tin- (iovevnnieut ami not in favor of t),^ claim-
;iiit,s. The GovernTiient thus vindicated the national honor ; but it did not assume
to pay any particular class of claimants, nor any particular claim. Having ob-
tained the money by its own act and at its own cost, it had the rijrht to prescribe
the terms on wh'ich the distribution should be made. It certainly liad the power
to exclude certain claimants and to include others less meritorious. In the act
now before us, claimants are excluded who believe themselves .justly entitled to a
part of the fund ; but they have no power to assert their ri";ht to it. Under the
poweis committed to us we have in some instances I'ejected altogether claims pre-
Honted at Geneva, and in many more instances we have largely reduced such claims
in amount. i • ■ •
So I think, Mr. Siieaker, I have shown that by the treaty itself,.
by the proceedings at Geneva, by the terms of tlie award, and by the
decisions of the only court to which these questions have been sub-
mitted, it has been settled that this fund was paid to tiie United
States to be distributed among the sufferers by reason of England's
wrong in its own discretion.
It is claimed that tlie United States acted in ttat arbitration as
the ;ittorney or as the agent of these claimants. I deny it. There is
no evidence to support it. All tl:e evidence contradicts the proposi-
tioTi. But sir, if the Government of the United States did assume
the position of an agent or an attorney it was alike the agent and rep-
resentative of all the claimants named and referred to in the treaty
of Washington. And if gentlemen could sustain the proposition that
this Government was there in the capacity of an agent, not to settle
groat questions of international law, but to collect certain claims
which citizens of the United States had again.st Great Britain by
reason of her wrong-doing, they would only succeed in showing, ac-
cording to their theory of wliat our Government did, that never did
an agent and never did an attorney so betray a trust.
They would have you believe, Mr. .Speaker, that this Government
came before that great tribunal as the representative and agent of
all tliese claimants, and so conducted its agency, so represented its
principals or its clients, iis to give the greater part of this whole award
of $'.i(l,(KK>,OiiO to men w!u) do not in honesty and good faitli deserve
to receive a single dollar, and so as to deprive others who have lost
their all by England's wrong of tho right to recover a single cent.
A citizen of the United States was tlio owner of a vessel ujion the
high seas. AVith true patriotism and with true courage lie took his
own risk. He unfurled tlio Stars and Stripes over his vcissel, when
by showing foreign colors he wouhl have been safe. He had no in-
surance. A rebel cruiser let loose from a port in Great Ihitain runs
down liis vessel and it is destroyed. I lis all is gone and he is enti-
tled from no source, if not from this fnnd, to recover a single dollar
of indemnity. TJiis patriotic and loyal citizen places his claim iii tho
liands of his Government, and his Government goes before this great
tribunal to assort his rights, insisting it was England's wrong which
resulted in liis ruin. An insurance company that made its million of
doll.ars out of war preniium.s, having in the course of its business to
pay the loss on another vessel, places its claim, too, in the liands of
this fioveriiiiient, ami asks the Government to lie its re])reseutative
14
before this liigli tribaual and to insist upon its rights. The Govern-
ment, accordiunr to gentlemen, accepted the position of agent or
of attorney for these two chiiniants. It went before that high court.
Before going, however, it pledged itself to these claimants, and to its
citizens, and to the world, that it would not under any circumstances
so tie its hands as to be Unable to distribute fairly and justly auy
sum in gross w'hich might be paid into its Treasury as the result of
its negotiations. Yet, after all that, are we to be told that this Gov-
ernment, in its capacity as attorney or agent, has goue before that
tribunal and has violated its promise to the people and to the claim-
ants, and has so conducted that negotiation that the citizen who lost
his all can recover nothing from this fund, and the insurance com-
pany that made its million shall carry off its whole claim ? Sir, you
disgrace the nation when you say it acted as attorney in this ca-se,
and you disgrace it more when you undertake to show to Con-
gress and the American people that when acting as attorney it con-
ducted itself in this way. No lawyer could retain his place at the
bar in any respectable court on the face of tlie earth who should so
betray his client.
GEINTEV^ Js.^VJ^TlT)
OF
HON. GEORGE A. JENKS,
OF PENNSYLTAXIA,
IN THE
HOUSE OF REPEESENTATIVES,
JUNE 28, 187G.
WASHINGTON:
GOVEJJNMENT PRINTING OFFICE.
1870.
it must be because they have a legal right ; because as the law now
stands they are re-imbnrsed for all that they have lost in excess of
that which they have received in war premiums. Now, if they are
entitled to anything more it must be because they have a legal right.
And if they have legal right to any they must have legal right to all.
So that the majority report seems to me to be a logical solecism con-
tradictory in itself; apparently acknowledging the title of the insur-
ance companies and yet repudiating it. This amendment, therefore,
is necessary to give logical consistency to the majority report and to
do justice to those wlio have actually lost.
During tlie discussion of this question some of those who think the
insurance companies are entitled to the whole fund have seen proper
and thought it necessary to introduce authority to establish the prin-
ciple that a nation should be just. I apprehend. this was entirely
unnecessary. To be just is a nation's duty and her highest glory.
But we must not forget that before the throne of justice truth is the
sole ministering spirit ; and we can approach that throne only through
this medium. We must stand upon truth, and appropriate truth, or
justice cannot be done.
There has also been a series of arguments introduced which to
me seem to be entirely irrelevant and improper. Something like this
proposition has been stated : The United States have recovered this
fund from Great Britain. Now, if she, in disposing of it, does iK)t
give it to A or to B, she ought to return it to Great Britain. This is
a thorough non scqiiitiir. If a man obtains money honestly, how he
disposes of that money can in no event affect the justice or injustice
of the mode by which he obtained it. So that whether we give this
money to the insurance companies or not, if we obtained it in honest
good faith from Great Britain and perpetratetl no fraud upon her, it
makes no dili'erence to whom we distribute it. This, therefore, that
we see in the papers, that we wrong Great Britain if we give this to
others than the insurance companies, does not follow at all. The fact
is, as regards Great Britain, this money was obtained for certain ves-
sels destroyed in consequence of her neglect of duty as a neutral
power in the civil war transpiring between sections of the United
States. The individual title of no individual was considered in any
way.
But I would say here that if in any event it should turn out, or if
evidence should be adduced that we have in any manner wronged.
Great Britain, I would say pay her her money back. It is our duty
to be perfectly just. Justice is a more comprehensive term than
either national honor or national glory. The honor may be a mere
bubble. The glory may be tainted with crime. But justice is one of
the immaculate attributes of the Eternal, and is higher and broader
than either of the other terms. I would be just to Great Britain. I
would be just to every iieison who iiresents a claim here ; but I would
not accept the principle that when we have obtained this money
justly, if we do not give it to A, B, or C we should give it back to
Great Britain. That question in no way arises here, but is intro-
duced into the discussion in consequence only of that confusion which
often arises from attempting to consider two things at once which
are in no way relevant to each other.
In approaching the throne of justice it is also necessary to make
this distinction, that all truth is not e(iu,ally important. If I should
state as a legal truth that "if a person of sound memory and discre-
tion taketh the life of a reasonable being, and in the peace of the
Commonwealth, with malice aforethought, express or implied, he is
a murderer." That is a truth, an unquestionable legal truth, which we-
.accept; but it woiiltl be eutiiely irrelevaut here. Or if I should state
as a fact the accurate dimeusious of this Hall, that would be a truth
but an irrelevaut truth. So that vre must not only approach the
■august throne of justice through the medium of truth, but we must
see that that truth is relevant," relevant in fact and relevant in law.
Many considerations have been introduced here that seem to me to
be entirely unimportant in the discussion of this case.
The first proposition I will endeavor to establish will be that this
award was ol)taiued upon the paramount title of the nationf and not
upon any imlividual title whatever ; that no individual right was
■considered by the arbitrators, nor was any individual right the basis
-upon which this recovery was had. And in reference to this, in order
to guard against confusion, it may be well to call to the attention . of
the House the fact that there are at the same tiuie to all the aggre-
gate wealth of a nation the ]iaramount title of the nation anil the
municipal title of the individual. They are not necessarily con-
nected at all. The destruction of the one does not necessarily de-
stroy the other at all. The transfer of one does not necessarily
transfer the other at all. They are distinct and for distinct and dif-
ferent puri>oses. The title which pertains to the nation, which is a
sovereign as to foreign nations and to the individual, ai'e as distinct
as if the two tith-s existed in distinct individuals, each for its own
appropriate ]iinj»ose.
We may illustrate this by the fact that a nation may sell its para-
mount title to another in such case. Those who hold a municipal
title are not thereby divested of their individual rights or titles, be-
cause the municipal titl^ was not destroyed by the sale. But there
may be a money consideration paid for the title of a nation. Audit
may be transferred as fully as an individual can transfer his own.
We have illustrations of this in the history of our own country, in
the cases of the purchase of Louisiana, the purchase of New Mexico,
and the purchase of Alaska. Those inhabitants who, ])iun- to those
purchases, owned jtroperty within the purchased territory did not
have their title affected at all. l>ut the paramount title of France in
one instance, of Mexico iu another, aud of Russia in the third was
transfeired to our country. Therefore we waut to remember that the
municipal title of tlie individual and the paramount title of the sov-
reign are not the same at all.
Then, if they an; not the same, on what title was this recovery had
as to Great Ijritain ? And before we progress further in the consid-
eration of that jxiint it may n(d be irrelevant to suggest what is title.
" It is the means by which the owner cometh to the just possession of
his jiroperty." WJierever tliere is no means there is no title. Some-
times the ]>ar»mount title of the sovereign may be the means of re-
covering tlie inferior or municipal title of the citizen. Where I speak
of th«! jiaranionnt title of the sovereign and the municii)al title of the
citizen I do not wish to be undtMstood as derogating fioiu either, be-
cause they do not collide; tln;re is no contia vent ion ot'ri;;ht between
them; they aie very of ten co-existing, but they may be, separate.
Another illusi lation of this point : In a tinit; of war. if a eitizen sell
his property to tin- enemy that clearly divests the title of the eitizen
to tliat property; but the paramount title of the sovereign is not di-
vesteil theieby, ami the sovereign may recover it ba<;k. 'I'he eitizen
has destroyed his title; lint tlie nation's titli' stands intact as before,
anil it is as nnn li her property after the sah* as before. Tlien^fore
we must l>ear in mind that the two titlesan'uot necessarily co-exi.st-
4'nt, although thfv usually do exist together.
Then, thirc being two titles, on what title was this recovery liad ?
I maintaiu tliat it was had solely and exclusively on the paramounfe
title of the United States, which, as to all foreign nations, is sover-
eign, fnlly endowed in all respects. The first fact to which I wish
to call attention is the very statement of this case. This case stood
" United States vs. Great Britain." The award was in favor of the
United States and against Great Britain. Now, prima facie, the title-
recovered upon miist have been the title of the United States. There-
fore the award itself Would be at first prima facie evidence that the-
title on which that recovery was had was in the United States.
Then, unless sufficient evidence is adduced to the contrary, the-
award itself would settle it in the mind of any lawyer that it was ou
the paramount title of the United States alone that it was recovered.
This is capable of being rebutted by evidence ; because, as I have
said before, the title of the sovereign and the title of the citizen are
not antagonistic or adverse at all. But prima facie I say that the
very a jvard itself is evidence that it was recovered on the title of the-
United States.
The second fact to which I shall call the attention of the House in
reference to the title is that this award was had on three certain
rules established by the Geneva tribunal. Those rules were with
reference to the duty of a neutral nation in time of -u-ar. Now, there
is no duty that one nation owes to the citizen of another as such. If
war exists between two nations, and another nation recognizes the
belligerent state of those two nations, it owes neutral duties to those
nations. But the international duty of neutrality exists only between
nations, and not between a nation and any citizen of another, iude-
jjendent of his sovereign.
Now, the very ground of the recovery of this award was that Great
Britain had violated her duty as a neutral. Whatever was introduced
before that tribunal for the purpose of establishing the amount to be
recovered was merely evidence of the amouut of damages, and was
not any ground of recovery. Just as in the case of an action of cov-
enant being brought on a contract between two paj'ties,-the contract
being one to build a house. You might introduce evidence of what
another man's house cost to test the amount of damages resulting
from the failure to carry out the contract to build. That would give
no title to the house the cost of which had been given in evidence, as-
it was only a means of finding out the amount of damages done on the
breach of contract ; or, as we would say in this case, ou the breach of
national relations between the United States and Great Britain. The
ground of recovery before the Geneva tribunal was a breach of duty,
which conduced to the destruction of property over which the United
States had a paramount title.
If there had not been a single vessel destroyed, the United States
could have sustained its ground of action, but the amouut of dam-
ages would not have been probably so great as that which was award-
ed. The three rules ou which this award -^-as founded show that the
ground of recovery was the breach of national duty, which no nation
ever owes to the individual citizen of another nation as a citizen, sft
The third fact is that the court was international. This court
could not pass upon individual titles. No nation would appear before
an international triliunal to contest with a citizen concerning any
right that he might have. The character of the court itself indicates
that this was a contest on the paramount title of the United States^
and not upon any individual title. And these insurance companies,
or any person else appearing there and attempting to establish their
title before this tribunal, would have been ruled out without a hearing,.
as in fact they vrere ruled out. Every iijdividual title that -was there
offered as a title was ruled out.
But the arbitrators say, " We settle this question between nations
and on national rights, not between individuals at all.*'
The next fact that we would give in evidence is the instructions of
Lord Russell in reply to Mr. Adams, which I quote from a speech of
the honorable Senator from Ohio ; 1 have no doubt the quotation is
correct :
Her Majesty's govemmont cannot therefore admit that they are under any obli-
gation ■whatever to make compensation to the United Statts citizens on account of
proceedings of that vessel, (the Alabama.)
The British government repudiated any obligation to make com-
pensation to citizens of the United States for any injury done to them.
" It must be something else than citizen's title' that niust be consid-
ered here,'' was what the arbitrators said. If the question had been
one of citizen's title there would never have been any recovery, as I
shall demonstrate as I proceed further in my argument.
It is said by some that the individual title was ruled out on account
of that transcendental maxim (a relic of the Dark Ages) that a sov-
ereign could not condescend to contest with an iudi\"idual. That was
not the ground ; the ground was that the individual had no title which
could be presented there.
My next jiroposition will be that there was no municip.il title to
any portion of this property that was destroyed after the moment of
captuie. However, as to this at present. Her Majesty's government
repudiated making compensation to any citizen in that award ; that
is The ground upon which England acted.
Then Avith reference to the United States, we find this fact also ap-
pearing, that not only the court itself before which this trial was
had, and the British government, repudiated all individual title, but
the United States did the very same thing; lor in the communica-
tion of iiistrnctions of Secretary Fish to those having this trial in
charge the following jiassage occurs :
The Prewrtent desires to have the Rnbject discnssed as one between the two gov-
emmeiiis. and Le directs me to iu;;e upon yon strongly to secure, if possible, the
a'A'aril of a sum in jaoss. In the discussion of this question, and in the treatment
of the entire case, you will be careful not to commit the Government as to the dis-
position of what may be awardt-d. It is possible that there may be duplicate
claims upon some of the propei-ty alleged to have been captured or destroved. a.s in
the case of insurers and insured. The Government wishes to hold herself fiee to
decide as to the lights of the claimant.s' insuiers upon the termination of the case.
If the value of the proneity ca^itured or destroyed be recoidfd in the name of the
(Jovemment, the distribution ot the amount recorded will be made by this Govern-
ment without committal as to \\ui mode of distribution.
Now, if it had been on the title of any individual that this recovery
was had, tliere must necessarily have been a committal of the Gov-
ernm«'nt, because the Goveniiiient cannot violate ]trivate right — can-
not take the ]ir<»])crty of one and give it to another. This i>riiiciple
of law is so well kjiown that if the Govenimciit liad not stood upon
the ground tliat sin- was recovering uiuui her paranidunt title that
which was destroyed by tlic breach of neutral duties on the part of
Great Britain, that couiniunication of Secretary Fish would never
have been made by the United States as it was.
Tliese facts siiHiciently establisli that the amount was recovered
Ji|ion tlie paramount title of the United States, and not up<m any iu-
dividual title of any citizen thereof.
But it does not follow because it waw recovered upon the title of
the United States, that therefore the Guvernmeiit may not have re-
8
covered for tlie use of some of her citizens. If any of her citizens
had title to the jiroperty destroyed, after its destruction her recovery
on her paramount title would necessarily make her a trustee for those
whose property was destroyed.
Now, the next inquiry (and to this I will turu my attention more
particularly) is, was there any individual title to this property at all
at the time the award was recovered against Great Britain? If there
was, then the individual who had that municipal title is entitled to
his share of this fund, aud so are his privies, the insui-ance companies,
if there was title. But if there was not title, then he has no claim
above all the rest of his fellow-citizens in like circumstances ; nor
have his privies, the insurance companies. So that the inquiry now
becomes pertinent, was there any title in existence at the time of this
recovery except the i^aramouut title of the nation itself ? I propose
to undertake to demonstrate that there was no other title.
The first fact to which I would call attention in reference to this
point is that there was a civil war existing. This appears to me to
be a great ruling fact in the case. It seems to a great extent to have
been jiassed over or neglected in the discussions in the House. Yet
to me this is the very turning point in this whole discussion. There
was a civil war ; is that a fact or is it not ? If you go over to Arhng-
ton and see the thousands of graves marked " unknown " aud observe
the tens of thousands lying Imried there, you will not question for a
moment that there was a civil war. Was that civil war organized in
all the forms of. a regularly organized war ? That cannot be dis-
puted. Then the first fact which I sball take as fixed is that" there
was a civil war existing between the Confederate States aud the
United States.
But how did England regard this question? England had recog-
nized the belligereut rights of the confederacy. She had said that
there was a civil war existing. Then the fact is there was a civil
war. England said tliere was. The United States also gave her assent
to the same proposition. lu the case of Coolidge vs. Guthrie, 17 Law
Register, page 24, the followiug statement of the case is made by
Judge Swayue :
"When the transaction occurred, the rebellion had risen to the proportions of a
civil war and was fully flagrant. Arkansas was enemy's territory and all the
property there was enemy property. Cotton was an article of foreign and domestic
commerce. It was one of the main sinews of the power of the insurgents. They
relied upon it for the purchase of arms and other munitions of war, and chiefly to
supply tliem with financial means for the prosecution of the strife. Important
belligerent rights were conceded to them by the Government of the nation. Their
soldiers, when captured, were treated as prisoners of war. Tliey were exchanged
aud not held for treason. Their vessels when captured were 'dealt with by our
prize courts. Their ports were blockaded and the blockades proclaimed to neu-
tral powers, and property found on board such vessels belonging to persons residing
in the rebel States was uniformly held to be confiscable as enemy property. All
these things were done as if the war had been a pubUc one with a foreign power.
Then in the courts of the United States it seems the nation is found
as accepting the fact that there was a civil war in existence between
the Confederate States and the United States.
The same view is corroborated in the case of the Sarah Starr,
(Blatchford's Prize Cases, pages 73 and 74 :)
The hostilities commenced upon the United States by the seceded or Confederate
States of the South have produced a state of war between the two communities,
as consequent to which the United States are authoiizcd to employ* against their
enemies the means of resistance aud attack which are justifiable under the law of
nations by land or naval forces.
Before I go further in reference to this case, I will state this : The
claimant of this property was a northern man, whose property was
in the South, and it was confiscated under the laws of war because it
was within the territory of the then enemy.
Both of these vessels and their cargoes, so far as plaimert, were enenir property
within the principles of public law. " The sale of the Sarah Starr was neiiotiate'd
and made by George C. Munro, when he was a merchant trading in an enemy fort,
to Gravely, also domiciled and canyiug on trade in such place. That sale was
unlawful as to Mimro, even if, as he contends, he was then a resident of a loyal
Stat«, because it was in fraud of his obligations and duties toward his own gov-
ernment.
So the United States courts acceiited the fact that a state of war
existed.
In the case of Phillips rs. Hatch, which I will not cite now, the
same fact is stated equally fully and broadly.
Then, as a fact, war existed, and a.s a legal fact the laws of war
were applied and accepted by the Government of the United States.
Belligerent rights had been acknowledged by Great Britain. Then
as to all parties who could in any way have an interest there was a
state of war fully accepted as existing at the time of this transaction.
There being civil war then the same law applied that applies between
foreign nations. Under the law of nations the same rules or interna-
tional principles which ruled as to foreign nations ruled as to this.
And here I may say that we must bear in mind tiiat war has its
laws just as well as its arms. "We may not justify the one or the
other, but it has been found by human experience that the evils of
war are much more mitigated by accepting the laws of war than to
go upon the principles which existed prior to the recognition of inter-
national law. So. whether we justify the conclusions or condemn
them, whatever those conclusions are, if they are the conclusions of
law it is our duty to accept them as being the lesser of two evils.
The next propo.sitiou I pur})ose to estaljlish by authority is that in
a civil war, unless there be express congressional legislatiou to the
contrary, the same rules of international law apply as though it had
been a foreign war.
The first authority I cite on this proposition is Yattel's Law of Na-
tions, section 4".2T :
But when a nation becomes divided into two partie.s absolutely independent, and
no longer at^knowledging a common superior, tlie State i.s dissolved, and the war
between the two p:irties stands on thi^ same ground, in every rijspect, as a public
war between two ditiVsrent nations. Whether a republic be split into two factions,
each maintaining tbat it alone constitutes the body of a State — or a kingdom bo
divided between two coiiiiietitors for tlie crown — the nation is severed into two jiar-
ties, who will mutually term eadi otlier rebels. Thus there exists in tlu> state two
seijarate bodies, who ]>retend to al)solute in<lei)endenee, an<l between wliom tlioro
is no judge. (^ 293.) They decide their "luarrel bv arms, as two ditVeri'iit nations
wouUt do. The obligation to observer tlie coiiiiiion laws of war toward eacli other is
therefori- absolute, indispensably binding on botli parlies, and tlio same which tho
law of nature imposes on all nations in transactions between state and stiite.
The next autliority I will cite in pursuance of that is tlio Santis-
siraa Trinidad, 7 Wheaton, 'i^^. It is confirmatory of the fact that tlie
L'niteil States enforced the laws of war and acted on the l:iw of na-
tions when Spain and her relicllioiis cohjnios were contesting conc(!rn-
jug the independence of the latter.
During the existence of tlu' civil war between S]>ain and her colonies, and |)t'e-
viouH to the ackiiowledgnient of tlic indi-]>eiidi'Mi'i- of tin- latter by thi' t'nilfd
States, the colonies were ileenied by us lielligerent nations, and entilli-il, ho tar as
conceius n«, t!o all the sovereign riglits of war against their enemy.
So tliat if a civil war is existing as a f.ir-t, unless there 1)0 soinecon-
gre.s.sidiial legi.sladoii to changi! tlie hiw in ivlVieuce to it, (lie law of
nations applies to and rules the case.
10
We will also cite the case of Phillips vs. Hatch, 1 Dillon's Circwit
Court Eeports, 576, on this same principle:
"Were the rules and doctrines of international law at all to apply to this conflict,
or were the questions arising out of it to be wholly determined by the municipal
law ? This general question first came bef oi-e the Supreme Court in'the Prize cases,
a Blact. C35, 1862. It has since been frequently before that tribunal. (See The
Venice, i! Wallace, '258; Mrs. Alexander's Cotton, ibid., 404; The Hampton, ,5 "Wal-
lace, 372; "William Bagley, ibid., 377; The Ouachita Cotton, 6 ibid., 521; Hanger
vs. Abbott, ibid., 532; Cappell os. Hall, 7 ibid., 542; McKee vs. tJuited States, 8
ibid., 1G3; the Grapeshot, 9 ibid., 129.)
These cases all apply or declare to be applicable to the rebellion
the general doctrines of public law which govern in wars between
independent states.
So that authorities in international law and our highest court
have said that the laws of war were to be applied to this rebellion,
as though it had been a contest between two iudependent nations.
This being the fact, then what is the law of war with reference to
property captured ? What becomes of the title when the property
is captured ? is the next question. Let me say, without citing author-
ities, that it is indisputable that whenever a vessel is captured from
that moment the municipal title is divested, if the vessel is not within
twenty-tour hours taken from the captor. If not taken within
twenty-four hours there is no municipal title unless by the doctrine of
postliminy, which is a war right and never obtains after peace has
been made or an amnesty proclaimed, in existence whatever. When-
ever those vessels were captured, there being civil war and the law
of nations applying to that war, the title of the individual was for-
ever divested unless the vessels were recaptured within twenty-four
hours ; and this was not done with reference to any of this property
for which recovery was had before the Geneva tribunal. We will
cite the authorities to establish this before we proceed further.
The first authority I will cite on that point is one perhaps not alto-
gether unfamiliar. I quote from Blackstone's Commentaries, book
second, page 400. Speaking of the title by occupancy, and the prop-
erty as to which title by occupancy may be obtained, the commenta-
tor says :
It hath also been adjudged that, if an enemy take the goods of an Englishman,
which are afterward retaken by another subject of this kingdom, the former owner
shall lose his property therein, and it shall be indefeasibly vested iu the second
taker.
That is, if these vessels have been taken by the confederate cruisers
and retaken by another citizen of the United States, the title would
be indefeasibly vested in the second taker, and the prior owner's
title would be forever gone :
TTnless they were retaken the same day and the owner before sunset puts in his
claim of property. "Which is agreeable to the law of nations as undeistood in the
time of Grotius, even with regard to captures made at sea, which were held to be
the property of the captors after a possession of tvventy-four hours.
The next authority I will cite in stipport of that proposition is Hal-
leck on International Law, page c'66 :
"With respect to things taken by the enemy, the Eoman law considered them as
withdrawn from the category of legal relations during the period of the enemy's
possession of them. If retaken by their former owner, they became his by the re-
capture ; but, if retaken by the State, they were considered as Viooty or prizes of
war, the oiiginal light of property being extinguished by the intervening ho.stile
possession.
Then again on page 870 :
But the diificu'ty of recognizing things of this nature —
Speaking of personal property —
with any degree of certainty, and the endless disputes which would spring from a
revendication of them —
11
As -^re fiud -^vell illustrated in this case —
have introdncefl a contrary practice in modem times: and the title of the former
owner to all booty is considered a« completely diveste d liy a fii-m possession of the
captor of twenty-four hours.
Then he gives the law with reference to real property, whicli is not
relevant to this case.
The next authority we cite ou that proposition is volume 3 of Phil-
limore's International Law, page 504 :
"With respect to rn/,vahle property or prize captured in a war by sea. all such
property is vested in the captor. If he part with- them to a neutral, the formtr
proprietor is not entitled to claim them.
Then again, on page 509 :
Byntershock. however, agrees with Grotius that movable gooAs are now. without
distinction, subjects of prize, and dive.sted of the privileges of postliminy. As
goods captured from the enemy, he argues, vest in the captor, it follows, when re-
captured, the J' vest iu the recaptor.
The exception to this we will state in a moment : That the doc-
trine of postliminy extends the time within which the recapture oc-
curs, l>ut never extends beyond the re-establishment of peace. An
amnesty in civil war is the same as a treaty of peace in case of foreign
war. and that amnesty occurred before there was any recovery of this
property back.
The next authority I cite is Hopnor vs. Appleby, 5 Mason, pages 75^
76. I read from the opinion of Judge Story :
The orisinal ownership of the enemy is entirelv divested by the capture; and
though a title good against all the world may not be conveyed to a neutral vendee
by the cajjtors unless there be a regular condemuatioiyis prize, or a treaty of peace
which coutiniis. by implication, the existing title and state of things, yet thi»
does not interfere with the geneial right of the captors to sell the property or dis-
pose of it as rightful proprietors Jure belli and possessors de facto.
Then with reference to the effect of destruction being the same as
that of sale :
The cai)tors had a plenarv dominion over the property by the capture, and niight.
80 far as she was concerue'l. have burned or de.-tiojed it, or disposed of it iu any
other manner which they pleased.
We claim that these authorities establish that by the capture what-
ever municipal title exLsted as to any of this pro]ierty was totally
and entirely divested. Then on what ground docs tlie doctrine of
subrogation ou which the insurance comitanies claim stand? They
are subrogated they say to the rights of the owner of the ves.sid. I
admit it. If there l)e any f-pcs rtciqurartdi the insurance companies
are rightly by law subrogated to it ; but if there be uo eyes recttijerandi^
they are not subrogated.
Now, if tJie title, was utterly and entirely extinguished as to the
owner of the ve.s.sel from the time of her capture, what was there of
apes rtx'iiiHfdiuli as to which the.se insurance companies can be subro-
gated ? Th»-y insinx'd under tin- laws of war ; they took the risks of
a state of war. as well its laws as its arms. Yon might conceive one
of the insuiancf agents going to a sliip-owncr and stating the price
of insurancf. The shiji-owner might object that the price was too
high. The agent would reply that they l)ad to take tlie risk of the
property being ca])tnred, and if it was captured tiiere woubl be no
spes reeuptraudi. That is doubtless the way the insurance agents
talked, and it is good law. Tliey assumed The risks f)f war when they
charged war premiums. This is one of the very risks they bargained
for, because the law of the laud euters into an«I constitutes a jiart of
every contra'-r.
Then these parti<'.'<. knowing that in the event of cajiture (he title of
iho ow!Kr wiis f.uvver gone, charged for that and received llieir i)ay
12
for it, so that they liave ueitlier law nor equity ux)ou which, to base
their alleged right of subrogation.
Subrogation never exists as to a mere moral or imperfect right. We
may illustrate that in this way: A wealthy father might advise his
son to eater into some commercial enterprise regarded as likely to be
remunerative. The son, upon the advice of the father, enters into
the undertaking and perhaps insures the vessel in which he ships his
cargo abroad. That vessel is lost. In that event would there be such
a thing as subrogating the insurance company to the moral right
which the father might feel to be his duty to recognize in reference
to re-imbur.".iug his sou ? Subrogation does not exist in regard to moral
right.
These parties made their contract on the very basis that in case the
vessel was captured their spe? reciiperancli was gone. They made a«
war premium lit for that risk. They have neither in equity nor in
law a right to claim anything more than any other citizen should claim.
That is, if they have actually lost they shall l)e re-imbursed. The
Treasury Dei)artment of the United States under all circumstances
has always denied that insurance companies were entitled to subroga-
tion. In support of that I quote from page 133 of the Digest of De-
cisions of the Second Comptroller, section 974 :
Certain steamboats wkile impressed into the military service of the Uniteil States
vrere destroyed by tire, without any fault or neglisjence of the owners. The lisks
taken by the underwriters were liquidated and paid for, and claim by them, as sub-
rogated to all the rights of the assured, made under the act of March 3, 1849, for the
amount thus paid ; but it was held that the piinciple of equitaijle subrogation ap-
plied only in favor of the Government, the underwriters, as for the owners, having
by their i)olicies of insurjpce pro tanto agreed to incur the risk.
Therefore, as a fact, if they had taken pains to inquire indej^end-
ently of the law which they were bound to know, they would have
found that subrogation was never recognized in such cases.
And here it may not be malapropos to refer to a discussion which
occurred in the Senate. The honorable Senator from Ohio, [Mr. Thur- '
MAX,] for whose character and judgment alike I have a regard closely
bordeiing upon reverence, I apprehend was misled somewhat in his
judgment in this case by a case which he there cited. And the same
view was taken by the honorable chairman of the Committee on the
Judiciary [Mr. Kxott] in this dicussion. That was the case of Com-
egys vs. \'asse :
A ship that was insured was illegally captured by the Spaniards. In the course
of time Tasse became bankrupt, itc.
That is, the ship was Wegnlhj captured by the Spaniards. If in time
of peace a nation with whom we are at peace captures a vessel be-
longing to a citizen of the United States, that is an Illegal capture ; but
if the vessel is captured by a nation with which we are at war, then
it is a letjal capture. This case of Comegys vs. Vasse turned upon the
legalty of the capture. The right of subrogation was admitted in
that case because there was a distinct, living, tangible right and title
in the party who had been wronged by the illegal capture. The rul-
ing in that case is entirely iuaiipropiiate to this, in that under the
law of nations this was a legal capture, and divested the municipal
title. Whereas in the case of the Spanish capture that was an ille-
gal capture, and the municipal title continued to live just as much
after the cai>ture as before. It was a' chavige of property in possession
to property in action only ; the right of property existed the same
after the illegal capture as before.
But the right. of property did not continue to exist in the case of
these vessels captured by the confederates, because that cai)ture was
made in a state of war. I think, therefore, the Spanish case misled
to some extent the judgments of those who are nsnally so thoroughly,
informed and for whose opinion we hare such unbounded respect.
We claim, then, that there was no municipal titip left in anyone
as to which there could be any subrogation. Then how does that
award stand ? Just in this position : it was recovered for a breach
of neutral duty, recovered by the United States against Great Britain,
not upon any municipal title, but upon the national paramount title
of the United States as a sovereign. Then Avhat should be done with
this money ? The nation shonld be simi)ly and fully just ; if tb^re be
one single" dollar that should be paid back to Great Britain it should
go back there, because justice is our highest duty. But there is no
evidence and no inference to be derived from anything that has trans-
pired in the present examination astoany injustice having been done
to Great Britain. We are to assume, as we would with reference to
any conrt, that those who acted upon this case considered it care-
ftiily ; that they were honest and competent, and that they rendered
judgment for no more tlian was right, l^nless somebody establishes
affirmatively that the tribunal did give judgment for more tlian was
destroyed, vre owe no duties to Great ^ritain so far as that question
is concerned.
Then as to the claims of citizens, the fund is left in the possession
of the United States to be distributed to those who according to the
policy of the nation and the principles of natural justice would be
entitled to receive it. The national policy is to encotirage commerce.
I'liis fund is just as free for distribution as are the vessels captured
by United States men-of-war. The capture of any prize by a United
States vessel during war vests the title in the United States; but we
have passeil certain laws by which the Government distributes this
as prize-money among seamen in recognition of the meritorious serv-
ice of thfise whose valor has won it. This is our policy with the view
<of maintaining energy, vigor, and gallantry in our Navy.
Now this fund stands in just tlie same relation. Here is property
vested in the United States by Airtue of her paramoujit title. It is
her interest and her duty to distribute it to that branch of industry
from which it has been derived. We desire to encourage commerce.
The Goveniment invited citizens under her llag'to go into all parts of
the world. They rendered to her the duty of allegiance ; she i)rom-
ised to them the* correlative duty of protection. She really had en-
tered into the obligation to protect these parties who had invested in
commerce and whose merdiandise was destroyed or who were obliged
to pay war premiums. Then her duty is to jierfonu that promise.
The promise was made as much to one as to another. The (iovern-
ment is bound now, as I understand, by no kind of municipal title,
but is simply bound to <lo that which national policy, national honor,
or the princijiles of siin|de, natural justice may dictate.
Haviiig.invited her citizens to enter thus into commerce, which is
one of the great sources of (mr national wealth, it was the duty «f
the Government to ]irotect that connnerce. She was unable to jiro-
tect it at that time because of the civil war. She has nyw recovered
a fund from which to furnish indemnity in lieu of the protection she
owed. ■^i
But it will be asked, " Wliy not give it to all our citizens or leave
it in the Treasury as a common fund?"' Because, these parties, in
consideration of the invitation of the (Jovernnieiit to enter into com-
merce, risked and lost that which otliers di<l not. The i)artieH who
owned these vessels performed every iluty tliat any other citizen jier-
formed ; but they ran this adilitional risk and incnrreil this additional
loss. 'J'lie Government owed to them this ad<litioual ]>rotectioM,.
14
which it failed to give them. Hence tliey are entitled to be remuuer-
;ated. Those who lost vessels which were not, as they say, incul-
pated — but in my v^w of the case it is unimportant whether they were
inculpated or excuTiiated, because there is no title to this fund in any
citizen — those who lost vessels which were destroyed by these cruisers
before they were inculpated were just as much invited to enter into this
<50mmerce as those that were destroyed by cruisers a f ter they were incul-
pated. We might take a single illustration, the Delphine. Before the
Shenandoah passed into Melbourne she was alleged to be exculpated;'
after she passed into Melbourne and came out she was inculpated. '
She destroyed the Delphine perhaps twenty-four hours before she
went into Melbourne ; and twenty-four hours afterward she de-
stroyed another vessel. Now the duty of the Government toward the
•owner of the Delphine was just as high as toward the other vessel.
The right of protection was just the same in each case. Both par-
ties had rendered the same allegiance ; both incurred the same loss ;
hence natural eq)iity says that they should receive the same com-
pensation. Therefore I would from this fund make compensation
to all those who actually lost ships and to whom the United States
owed protection.
Then again, with reference to the war-premium claimants. The
honorable chairman of the Judiciary Committee, in his remarks on
this subject, said that this war-premium business was a bet on their
part. Not at all; it was a contract, with all the relations, i^rovisions,
and incidents of a contract. He says it was entered into in ordef
that the owner of the ship might sleep soundly at night. But the
insured gave his allegiance to his Government that he might sleep
soundly at night. Perhaps he took his gun upon his shoulder and
risked his life that he might sleep soundly at night. Why, then,
should he be required to pay this additional sum that he might sleep
soundly at night? For he has paid all that anybody else had paid
for the same thing. But it may be alleged that this was a voluntary
payment. If it was a voluntary payment and a reckless one, it would
not be justifiable to re-imburse him; but if it was a voluntary payment,
such as an ordinarily-prudent business man would regard as justifi-
able and necessary and warranted by the circumstances, he had a
Tight to make this payment and has a right now to his share of this
fund, because the Government owed to him this i^rotectiou which he
had to provide for himself.
Or we might arrive at the conclusion by another way. If the doc-
trine of subrogation — which as a legal doctrine does not exist in the
case — be recognized, it might be said to the insurance companies :
" Why not subrogate one step further and make compensation to the
man who lost instead of him who made the money ? Why not sub-
rogate the man who re-imbursed you to your right ?" But the true
ground upon which to place this question is that of the correlative
duties of allegiance and protection: and these men were eiititled to
* protection without paying their war premiums, so that they might
sleep soundly at night, as the honorable chairman of the Judiciary
Committee has stated.. So that these two classes of claimants are
entitled to their share of this fund, and entitled justly.
Then the third class which my amendment would leave provision
at some future time for bringing in as a separate element are those
who suffered actual physical or bodily loss inthese transactions. He
who lost a hand or a limb is just as much a sufferer as he who lost a
"vessel, and ought to be re-imbursed just as much. Hence my amend-
ment provides that after paying the two classes to which I have ad-
verted, the balance shall remaiu in the Tceasury to be distributed by
If)
future congressional legislation to those other parties who have suf-
fered direct losses from which the Governmeut, if able, should have
protected them.
These are the views we have with reference to this whole transac-
tion : tirst, this money was recovered upon the paramount title of
the nation, and upon no iudividiuxl title ; second, there was no mu-
nicipal or individual title in existence at the time of its recovery, and,
as a consequence from that, there can be no subrogation; and third,
the conelative duties of protection and allegiance require th^ that
class of men who sufiered from these cniisers, when others did not,
should have this indemnity extended to them in order to repair their
loss, because we did not prevent them from suffering it.
So we claim, then, this is the course which should be adopted. We
stand as a sovereign, above every muTiicipal law or technicality. We
own this fund simply to do right. The nation, according to the an-
cient view of a sovereign, was endowed with the right or prerogative
of personal dignity. That is the special pre-eminence which the
sovereign lias above all other persons and the ordinary course of law
by right of sovereign dignity. We stand above the ordinary course
of law to look ui)ou this whole field in its full breadth, standing, as
it were, as the vicegerent of the Creator himself to do just what is
right and make whole every one who hae lost in this transaction.
We are not to view it through any translucent medium of municipal
law, but through the transparent ether of absolute distinct natiu'al
justice.
We ask this House, then, to adopt the amendments we have intro-
duced, so that instead of turning over to insurance companies who
have already made a large amount of money, or if they have not, the
pre.seut law re-imbnrses all they have lost, leave it to those who have
suffered absolute personal lossorany other direct loss which may have
been or may be shown to have taken place
Mr. I3LAXD. I ask the gentleman from Pennsylvania to explain
what is the difference between the proposition he advocates and the
present law and the act of the last Congress.
Mr. JEXKS. The act of the last Congress only provided that those
whose vessels ha<l been destroyed by the inculpated cruisers should re-
ceive their pay — that is. by those they claimed or thought had entered
into tlie award — and also to pay insurance cimijianies all the loss
they had been suljjected to botli by the destruction of the vessels
which were destroyed by the inculpated or exculpated cruisers in ex-
cess of the war premiums. This goes further and provides for all ves-
sels which wert! actually destroyed by the cout'edeiate cruisers.
Mr. LOKD. On the high seas.
Mr. JENK8. On the high seas, of course ; and those who have paid
war j)remiums, that is, those who had toluruish thelrown ])rotertioii
outside of that the trovernmcnt was al)le to give them. The l)alance,
I say, should rmiaiii for future disposition.
Mr. ULAND. Does it pay the actual loss to the war-premiv.m men
or >fhat they have not been paid back ?
Mr. .JENK.S. Of course this billonly i)ays the actual loss to war-
premium men. As I view this, there is no right in any m.ui to claiiu
anj' profit upon this wliatever. It is finly the loss which sliould ll(^
re-imbursed, because profit must be the result of li*gal right, and, :ih
there is no Irgal right, nothing Imt impfi-fcct riglit for any one to go
upon or iuf)ral <luty, there lan be ciaiun-d no profit by one man as
against anotlicr in tliis distriliution.
Mr. MILLS. Did the insurance companies pay for the vessels which
were destroyed by the confederate cruisers ?
e>
16
Mr. JENKS. Tliey paid for some of them, and thoy claim the whole
fund in consideration of having j>aid for them.
Mr. MILLS. Do they claim the whole fund in eonsideratioii of
having paid for part of them f
Mr. JENKS. For vessels destroyed by the inculpated vessels which
they had insured.
Mr. MILLS. Do any owners' of any of the vessels which had been
insured and received their insurance claim any part of it?
Mr. JENKS. They do not, as I understand it.
Mr. MILLS. Only those who were not insured ?
Mr. JENKS. Only those who were not insured are claiming any
portion of the fund, as I understand it.
Mr. JONES, of Kentucky. I should like to ask the gentleman a
(jnestion. I understand the gentleman to have said in the course of
his remarks that at the time these commissioners met at Geneva,,
where they determined upon the amount due from the British gov-
ernment to the Government of the United States, these individual
claims had not been presented ?
Mr. JENKS. I say the individual titles were not considered. It
was only upon the paramount title of the nation they passed, and.
there was no individual title before the tribunal.
Mr. JONES, of Kentucky. Bat there must have been some consid-
eration of the various claims made.
Mr. JENKS. Only as to the value of the vessels.
Mr. JONES, of Kentucky. Before the amount was fixed how did
they arrive at any amount which was supposed to be due from the
government of Great Britain?
Mr. JENKS.. They fixed it by the value of the vessels which were-
actually destroyed.
Mr. LORD. And their cargoes.
Mr. JENKS. Yes ; by the value of the vessels and cargoes de-
stroyed.
Mr. JONES, of Kentucky. Did they not take into account indi-
vidual claims ?
Mr. JENKS. They never did : as I vmderstand it, they only took
into account the nation's claim by virtue of her paramount title, and
no individual title was before that tribiinal or could have been there.
And tlie)'e ivas tio indiddual title in existence to present there. That is
what I have endeavored to demonstrate.
Mr. JONES, of Kentucky. I understand that a great many indi-
vidual claims have been admitted and agreed to be paid. Now the
gentleman contends, as I understand him — for I did not hear all his
remarks — that if there is a balance of this amount of fifteen millions
and no farther claims are admitted to be just and due, then it should
remain as belonging to the United States Government ?
Mr. JENKS. It would remain, provided there are no losses that
the United States ought to compensate.
The SPEAKER pro tempore. The time of the gentleman from Penn-
sylvania has expired. ^
Mr. JONES, of Kentucky. Ju8<^ allow me another question, "ap-
pose there should be no claim and that a balance was left of four or
live million dollars?
Mr. JENKS. It would belong to the United States, unless some
other jnst claim thereto should appear.
Mr. JONES, of Kentucky. Docs the gentleman l^old that it should
be covered into the Treasury ?
Mr. JENKS. I hold nothing about that now, as the fact does not,
yet appear.
THE GENEVA AWARD.
SPEECH
OF
HON. ELBPtlDGE G. LAPHAM,
OF NEW YORK.
IN THE
HOUSE OF REPRESENTATIVES,
JULY 6, 1876.
» ♦ «-
WASHINGTON
167C.
SPEECH
HON ELBRIDGE G. LATHAM.
Oil tbt- bill. ()1. 11. No. -2683,) reported bvtlieComniittoeou till' Ju.liciary, forlbedis-
tributiou of the uiiappropiiated moneys of the Geneva award.
Mr. LAPHAM. Mr. Speaker, it is uot my pmpose to enter upon a
detailed exaiiiiuation of the preci.se mode in whicli the remainder of
the Innd in question shall be distributed by Congress among the
various classes of claimants thereto. Agreeing in the main upon
that question with the views stated by the majority in their report, I
shall briefly discuss the question as to the status of this fund and
the gent-nii duty of the (ioveniuient in respect to it and its distribu-
tion.
Three impurtaiit ends to the Government of the United Statt s were
aimed at and sought to be attained by the Geneva arbitration :
First. An acknowledgment on the part of Great Britain that she
hail been guilty of a violation of the rights of neutrality and an
ajjology therefor.
Sec<mdly. The establishment of the principle or doctrine that no
neutral shall be held liabh; f(»i' indirect or c<)nse<|iienti:il damages in
case of a violation of neutral obligations, but only for the direct losses
resulting thcrcfroni.
Thirdly. That national gritnaiices may be jteaceably and honorably
adjusted by the mode of arbitration, so that war and all its attend-
ant evils and sacrilices may b<? avoided.
In onler to accomplish tlitise ends the United States early took the
ground no claim for any indirect or conse<iiiential damages shonld bo
insisted on by the Goveninicnt, and that, as bctwtcn (Jrcat Britain
and the United States, tin; higii tribunal of arbitration weie at 11b-
♦^rty to inononnce against such allow ;'nc<' as a jii'incipltr of interna-
tional law.
In order to accompli.sli tluM' ends and leave tin', (Jovernnu^nt en-
tirely free to act as its interest might seem to dictate, the I'resident,
in his message, in l>cccnil>er, l-'TO, rcconnnendcd flic piircliasc of all
iiMlividnal claims in the following language:
I tlieiefore reroMimeiiil to ("iinjjreM.s to aiitliiiri/.e the !i|ipiiiiitiiic'ut ot a coiunii.s-
fion to take iiioiit nt tlm aiii'iiiiit and tln^ ownershiit of ilicse. several claiiiiN. ' ' "
and that aiitliority he j:ivi-ii foi' tin- si-ttleniiMit of thesr claiiiiM hy the I'niled Slates,
HO that the ( tovcniimnt Hhall have tin- ownerHliip of the pri\ ati; elainis, as XM'll ai4
lilt' reM]MiiiHible eoiilKd of all the diiiiaiids a;^ainsl (irrat JJiltaiii.
JIa<l thisbcen done, it is self-evident the United States would liave
]iaid for or become liable to )iay to every indi\ idnal having a claim for
loss tiie amount thereof or sncli sum aH might have, bi-cn fixed by
agreement, and in that event the smii awarded, whatever it niiglit
have be*Mi Mould liave belonged aliKuliilely lo the I'liited States.
Belore there was time to perfect and cany out this recommeuilati<ni
of the President it became uecessary for the United States to act iu the
premises, and so great were the promised advantages of the arbitra-
tion, that the Government decided to act without acquiring the rights
or claims of individuals ; and yet, in order to attain those ends, it was
necessary that the United States suould assume the control of, and the
right to release and forever discharge, all such individual claims, as
Avell as those of the Government, and to fully release the government of
Great Britain therefrom. Acting in such an emergency and for such,
high ends, let us see how careful the United States were not to become
in any manner committed or crippled in the disposition of the money
awarded when it should have been received by us.
In the instructions given by Secretary Fish to Messrs. Gushing,
Evarts, and Waite, counsel of the United States, he said :
The President desires to have the subject discussed as one between the two gov-
ernments, and he directs me to UTjre upon you strongly to secure, if possible, the
award of a sum in gross. In the discussion of this question, and in^the treatment
of the entire case, you will be careful not to commit the Government as to the dis-
position of what may be awarded. * * * It is possible that there may be duplicate
claims for some of the property alleged to have been captured or destroyed, as in
the cases of insurers and insured. The Govermnent wishes to hold itself free to
decide as to the rights and claims of insurers upon the termination of the case. If
the value of the property captured or destroyed be recovered in the name of the
Government, the distribution of the amount' recovered will be made by this Gov-
ernment without committal as to the mode of distribution. It is expected that all
such committal be avoided iu the aigument of counsel. — Papers, cCc, volume 2,
page 414
A gross sum was awarded and received by the United States iufuU
of all claims of every description, and the government of Great
Britain was fully and forever released and discharged fi'om all such
claims.
It is obvious that here is no case of an express trust. This money
was not received or obtained with the privity and consent of any of
the individual claimants. On the contrary, the Government, for the
reasons I have stated, assumed to treat the entire demands as its own^
and to deal with Great Britain upon the theory it was the owner of
all these claims, and had the right to arbitrate and negotiate in
respect thereto, and to receive as its own whatever sum might be
awarded by the tribunal of arbiti'ation.
Yet this money is not in fact the money of the Government, is not
claimed by it, but it is conceded it belongs to some one or more of
the various classes of claimants for damages by reason of the unlaw-
ful acts of the British government.
What, then, is the tenure by which this money is held by the United
States, and what is the duty of Congress in providing for its distribu-
tion?
It seems to me, Mr. Speaker, that the analogies in familiar cases in
equity are complete.
A person takes the custody and control of the iiersonal estate of a
deceased individual and deals with it as his own. The law converts
him into a trustee, and makes him lialjle as an administrator dc son
tort.
A person standing in loco parentis to one or more minors assumes
the control and disposition of property belonging to such minor or mi-
nors. The law converts him into a trustee for such minor. A stranger
cr one of several cestui que trusts intrudes upon an express trust,
and assumes the whole management and control of the trust prop-
erty. The law converts him into a trustee, and renders him liable to
account more strictly even tlinu il he bad been appointed by the
court to execute .such trust.
An attorney pnichases the property of his client at a judicial sale
dn his own name : the htw converts him into a trustee for such
-client.
Kow the Government of the United States has assumed the power
and authority to deal with all private claims as its own : has received
a gross sum therefor: and has released and forever discharged all such
claims. It is ohvious to my mind that this money is held in t/ust in
the sense I have named, and that the trust is as broad aud compreheu-
sive as the claims ichkh were satisfied and dischargtd by the payment anil
receipt of such gross sura.
Assuming the correctness of this position it follows as a funda-
mental principle that iu the distribution of the fund the highest
equity is tirst \o prevail and each equity in its turn according to its
validity. Following this rule the insurers who were actual losers
have already been jirovided for and paid. It would seem that the
actual losses of property uninsured are equitably upon the same foot-
ing. But. Mr. Speaker, as I said iu the outset, I do not propose to
tliscuss the detail of distribution, contenting myself with referring
to the general principles upoti which I think it should be made.
Here then is no express trust, no limitation upon -the general power
of distribution, except such as the rules of equity impose; and within
that range Congress is left free to dispose of this money.
Xorwas it in the power of the government of Great Britain to place
any limitation or check upon the power to distribute this fund. She
was the wrong-doer and cannot be permitted by objecting to the allow-
ance of one claim or class of claims to deprive such clainuiuts of their
cfjuitable rights.
But, Mr. Speaker, gentlemen who differ with the views I have ex-
pressed say by the terms of the award the money belongs to a class of
thiimauts, the insurance com}ianies, ajul that good faith demands they
should be preferred. I cannot concur in this view. I have very
brieliy endeavored to show the money was not paid or received for
any such purpose. I do not deny the obligation of good faith iu the
disposition of this money, ^^'lly are the i)ersons to whom I have re-
ferred in supposing cases — the administrator dc son fort, the person
in loco parentis, the intrudi-r upon an express trust, the attorney pur-
chasing his client's property — Iicld liaVile as trustees ' It is, sir, be-
cause f/ood faith re/jiiires it.
It was a remark of Michael Iloflman, iu tlie New York constitu-
tional convention of lr^4(J, spfaking of the obligation of the State to
its public creditors, that " Good faith is a jewel."
It is so, Mr. Speaker, between private individuals. It is eminently
HO between a government and its citizens. The United States as-
Humed to take this money as its own. 'I'lie iuilividiial claimants weie
ig7iored. 'J'he pai'ental jiowerof the fJovernnient was exercised for the
high ends to whicli I have rel'orred. 'J'iie muney is clearly subject to
the operation of tin- broad equities named, and the highest »/'»<></ /en'//*
demands at the hands of Congress that actual siitiercrs shall be i>ro-
vided for in its distribution.
THE GENEVA AWARD.
HONEST FAITH THE NATION'S SUPREME NEED.
SPEECH
OF
.^AAioT,
LIS,
M. C,
IX THE
HOUSE OF REPRESENTATIVES,
JULY 1, 187G.
W ^ S IT I 2Sr Gr T O N" .
187G.
SPEECH
OF
HOX. BEXJAMIX A. WILLIS
The House having undev coiisitleration tho hill (IT. U. Xo. 268")) repovteil by the
Committee on the JmlicLary for tho di.stribiitioa of tho uuappropriated moneys of
the Geneva award —
Mr. WILLIS said :
Mr. Speakkii: The discussion iiiangnrated l)y my honorable c'(d-
leaguc, Mr. LoiU), possesses rare interest, far exceetling that -which
any qnestion of local concern can excite. It relates to action on
the part of the United States Government bearing npou the disposi-
tion of a trust fund placed in its possession by a\yard and decision of
arbitrators pursuant to the treaty of Washington. Fidelity to in-
ternational obligations, the maintenance of national honor by strict
regard to the behests and conditions imposed by such a\vard and
decision, are tlie grave questions to be determined by the action of
Congress upon the pending bill. It becomes us to accept as an ap-
propriate rule of our conduct in this matter the decision of the Su-
preme Courts pronounced by Associate Justice McLean in these words :
The action of a sovoreiini state will ho characteiized hy a more sorni)nlous re-
gard to .justice and l>y a lii;iher sense of morality than belonijs to the ordinary trans-
iictious of iuiUviduals.
Noble words these and fitly spoken then, but far more needed now,
when vice is so rampant and corru]»tion so thoroughly infused in all
the clianiiels of commerce and government that sinnile virtue has
scarcely a single worshiper.
STATEMENT Ol" THE CASE.
Mr. Speaker, my honorable colleague has aptly stated what occurred
before the Judiciary Committee, the classes of claimants who i)re-
sentedtlu:mselves, and some of the facts whicli serve to illustrad' tho
history of what are known l)y the generic ten not " thcVlabainailaiins."
He has failed, however, and that, too, utterly, to give place and prom-
inence to tho.se essential facts which constitute the irs (lentw of tho
ca.se, and out of which arise tho legal an<l moral obligations of the
United States Government. To do this is the provinct; I have a.ssignod
myself. It shall be my laboi- toexliibit tlie ]»recise relation whicli tho
Government sustains to the fumi jtaid ]iursuant to tlie a wart! mado
by arbitrators at Gencsva.
It is <|uite a lal)or of supererogation to recite all tho facts of his-
tory whicli ar(! in any way, directly or indirectly, connrctrd with tho
transaction. I will (;ontine myself to a recital sim[ily of such as
specially serve to charai-terizo it.
During tlie war of reb(!lli<ui, confederate cruisers roamed over tho
sea which wen; built in ICnglish shiji-yards and wen> coahid at Kn-
glisli liail)ors; they ••oniniitti'd<lciii«-(lat ions upon Atiici'icaii cotnmercc ;
(IcstrojiHl Airu'iican sliip])ini;' ; niiiltiplied risks tf) sufb an extent tbat
premiums were eiiliaiiced, tlie war prolonged, and its costs enlarged
incalculably, so that every American citizen — the whole country —
suffered loss. »
Pending war, when the peoitle were absorbed v/ith its grand prob-
lems and intent only on the salvation of an imperiled Republic, they
slept n))on their rights, the Government contenting its(df simply with
forwanling claims of its citizens and entering its occasioiuil protests.
But when rebellion was suppressed and arms silent, urgent steps were
taken ; Great Britain was summoned to answer for its responsibility
in permitting confederate cruisers to be built and launched as a curse
upon the seas to blight and destroy. Negotiations were entered into
with a view of ascertaining the exact measure of such resiiousibility.
Succeeding the outbursts of fierce hate, of cries for vengeance into
which the country in a moment of frenzy and resentment indulged,
came a calm, intelligent desire on the part of the better elements of
the two nations to adjust amicably and })eriuaDently all existing
grievances and differences between them. Such desire found expres-
sion in what is known as the treaty of Washington, Avhich constituted
the most glorious victory of peace achieved in the history of the
world, not surpassed by that great victory of war which determines
the perpetuity of our Republic. The former was a fitting sequel of
the latter : First, the brotherhood of man ; second, the brotherhood
of nations. Such treaty contained everything that the keenest, most
scrupulous sense of honor on our part demanded; it expressed regret
for wrongs committed; it provided an ample, satisfactory mode for
the redress of such wrongs; it prescribed the rules which should con-
trol the adjudication.
Here is the language of the treaty in so far as it has special refer-
ence to the purpose of my argument :
Akticle I.
"Whereas dilieipnces liave arisen between the Govemraent of the United States
and the government of Her Britannic Majesty, and still exist, growinii out of the
acts committed Ijy the several vessels which have given rise to the claims generic-
ally known as the "Alabama claims ; " and whereas Her Britannic Maiesty has au-
thorized her high commissioners and plenipotentiaries to express in a fiiendly
spirit the regret felt by Her Majesty's government for the escape, nnder whatever
ciicnmstances, of the Alabama and other vessels from British ports, and for the
depredations committed by those vessels:
Now, in order to lemove and adjust all complaints and claims on the part of the
United States, and to provide for the speedy settlement of such claims, which are
not admitted bv Her Britannic Majesty's government, the high contracting parties
agree that all the said claims growing out of acts conunitted by the aforesaid ves-
sels, and generically known as the "Alabama claims," shall be referred to a tribu-
nal of arbitration, to be composed of five arbitrators, to be aijpointed in tlio follow-
ing manner, that is to say :
Article VI.
In deciding the matters submitted to the arbitrators they shall be governed by
the following three rules, whicli are agreed upon by the liigh contracting parties
as rviles to be taken as applicable to the case, and by such principles of international
law not inconsistent therewith as the arbitrators shall determuie to have been ap-
plicable to the case :
UULES.
A neutral government is bound —
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 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 jurisiliction of any
vessel intended to cmise or carry on war as above, such vessel having been spe-
cially adapted, in whole or in part, within such jurisdiction, to warlike use.
Second. Kot to permit f)r sutler 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.
Thiiil. Ti) excicisc due iliiiciniee iu its own ports an 1 wati'is, ami, as to all per-
sons within its jurisdiction, to jnevent any violation of the f jiegolug obligations
and duties.
And the hi<;h contracting parties agree to observe these rules as between them-
selves in the future, and to brini; them to the knowledge of otlier maritime powers,
and to invite them to accede to them.
Article XI.
The hi^'h contracting parties engage to consider the result of the proceedings of
the tribunal of arbitration and of the board of assessors, should such boaid l)e ap-
pointed, as a full, perfect, and linal settlement of all the elahus hereiubefsjre referred
to; and further engage that every .such claim, whether the same maj- or may not
have been p7-esented to tlie notice of, made, preferi'ed. or laid before tlie tribunal
or board, .shall, from and after tlie conclusion of the proceedings of the tribunal or
board, be cou.sidered and treated as hnally settled, barred, and henceforth inad-
missible.
Having adduced the evidence of this fact, the TJnited States will next endeavor
to indicate to the tribunal of arbitraticm what they deem to have been tlie duties of
Great Uritain toward the United States in respect to the several cruiseis which will
be named iu this iMper.
Such is the treaty.
Then the hi<ih court of nations is duly ai)|iointe(I, as.scmbles at
Geneva, and organizes. The high parties litigant appear through
agent.s and able counsel and present pleas: both those growing out
oi ^\Tongs done to the nation and wrongs done to its citizens.
By the forms of the treaty just read a]l claims growing out of the
acts coiumltted by tlie Alabama and other vessels, which in any man-
ner had escaped from Ihitish port.s, -were submitted lor arbitration.
KESULTS OF ADJUDICATION.
Knghtnd interposed a dcmnrrer on the ground that by Uie intent
and scope of the treaty of Washington tlu; claims for in<liiect dam-
age, as here indicated— namely : a, The loss of commercial marine to
the American hag; h, The enhanced payments of insurance; c. The
prolongation of tlie war and consof^ueiit additional cost — should not
lie ent<atained or allowed.
The (hMuurrer Avas sustained.
Had tlie I'liited States insi.sted upon their furiher coiisidcralion
the arbitration would have been di.ssolved, and a giand stride toward
universal peace would not liave been taken.
But the agent of the rnircd States telegraphetl Secretary I'isli,
June 19, 1H72 :
"We arc of llie opinion lliut thiannoniiccnienl tliis day made liy the tiiliuiiiil iiiu<t
be received by the I'niti-d .States as (•eteniiiiiati\ e of ils judgment ii|Miu ilu' i|ues-
tiou of jjublir, law involved, mihih wliicli llu' fiiited Slates have insisti'cl upon tak-
ing their o]iiiiii)h.
Tlie tijliunal, you ulll observe, had determined adversely to these
indirect claims, and the Knited States had insisted upon t he opinion
lieing rciideied.
Let no member of this House, in the iu-e.s<'nce of such iiicfutabhi
testimony, luiteiid that these indirect claims were not rejected by tho
tribunal after due. consideration.
Listen further: On .June 22, 1^7-2, Secretary Fish telegraphs to th<>
Cniled States agent, in reply to the diKjtatcii already read :
] liave hiiil your telegnuns lii-forc the PreHideiil, wlio directs me to Hny that lii«
acceptM the di'claratiiiii of tlie tribunal um itM jud::m<'iit ii)ion a ijueHtiun of putdic
law which be felt tbiit tbe iliteK'st^ of Inilb ^ovei iiiiients lei|nil'ed should be de-
cided, and for the di'tenilinat ion of wliicli lu! luul felt it iiii|iortHiit to present tho
ciaimH refeiTid to for the ]iui-|ioHe of tukin^ the ojiinioii of tin; tnbuiiul.
You will note the languag'- of Ihisdispatcli. Tlie rresideiit iucepts
a dcclaial ion of the tiiliunal's j'ldgment. Ife felt il iinpoitaiit to
6
present tlie claims referred to. But note furtLicr. The same tele-
gram contains this unmistakable language :
"We had no wish for a pecuniary award, but desired an expression by the tribu-
nal as to the liability of a neutral for claims of that character. (Meaning indirect
tlaiuis.)
Tlie President therefore further accepts the opinion and advice of the counsel as
set forth above, and authorizes the announcement to the tribunal that he accepts
their declaration as determinatiYe of their judgment upon the important question
of public law upon which he had felt it his duty to seek the expression of their
opinion ; and that, in accordance with such judgment and opinion, fi-om henceforth
he regards the claims set forth in the case presented on the part of the United
States, for loss in the transfer of the American commercial marine to the British
flag, the enhanced payment of insurance, and the prolongation of the war, and the
addition of a large sum to the cost of the war, and the suppression of the rebellion,
as adjudicated and disposed of; and that consequently they will not be further in-
sisted upon before the tribunal by the United States, but are henceforth excluded
from its consideration by the tribunal in making its award.
•* FISH.
After snch a declaration from the Chief magistrate, in terms so ex-
idicit that, had ^ve not been familiar with past legislation on this sub-
ject, had we not read the report or listened to the argument of mj'
honorable colleague, we would have deemed it impossible for any in-
telligent man to insist that sifch indirect claims had been waived or
withdrawn. Wo will go still further in this direction. What did the
tribunal actually do upon the reception of the foregoing dispatch ?
You will find in protocol 7— the same being a record of the proceed-
ings of the 27th of June, ld72, — that Count Sclopis, on behalf of all
the arbitrators, then declared that the said several claims for indirect
losses, to wit, (see protocol C:)
First. The loss in the transfer of commercial marine to the British
flag.
Second. The enhanced payments of insurance.
Third. The prolongation of the war, and the addition of a large
sum to the cost of the war and the suiipression of rebellion —
Are and from henceforth shall Ijo wholly excluded from the consideration of the
tiibunal, and directed the secretary to embody this declaration in the protocol of
this day's proceedings.
Mr. Speaker, before this determination was had, before it was ac-
cepted as binding and conclusive by the high contracting parties,
Cushing, Evarts, and Waite had exhausted all the resources of their lore,
their logic, and their eloquence, far overmatching their competitors,
in enforcing the justness of these indirect claims, they were attent-
ively heeded by willing, admiring judges, but to no purpose ; the ar-
bitrators calmly and firmly rejected the claim. The United States
acquiesced in their rejection ; acquiesced in the understanding that
our Government was not to recover money for such a purpose. The
arbitrators, in arriving at their judgment respecting these claims,
were controlled by rules contained in the sixth article of the treaty
of Washington and such iirinciples of international law as are not
inconsistent therewith. The rules are already quoted.
IMMORALlTi- OF PAYIXG REJECTED CLADIS.
Now, we have the liability of the British government in the prem-
ises clearly defined; determined acceptably to both governments.
The indirect claims are distinctly announced as not being sustaiualdc
either by virtue of tlie treaty or of any principle of international law ;
and yet we confront a demand that moneys obtained on account of
claims which were specifically allowed, which in the high court of
nations had been solemnly adjudged as proper, upon which the award
itself was predicated, shall be appropriated, now that we have by
fraudulent contrivance and device ol)taiued control of it, to tlie pay-
ment of claims admittedly unfounded, and which hj' solemn decree,
pursuant to solemn treaty, have been solemnly adjudged illegal and
■without wanaut in international law. What words can be employed
in depicting the infamy of such an act ?
The nation, exultant that such claims had been declared illegal and
boasting the advantages to accrue from such an adjudication, through
its Congress enacts a law in direct antagonism to the judgment of the
tribunal and in violation of every sentiment of honor and justice.
^^^ly, the United States disdainfully stated they desired no pecuniary
award on their account. In the correspondence the Secretary t)f State
(see volume 11, treaty of Washington, page 476) writes that we should
be content with an award that a state is not liable in pecuniary dam-
ages for the iudu'cct results of a failiu'e to observe its neiitral obli-
gations.
Any other decision would have been prejudicial to the interests of
ourEepublic. A nation whose sphere for the next century will be neu-
trality and belligerency wiU bo its exceptional conilition.
CHAKACTEK 01^ THE MAJOKm' rKOrOSITIOX.
Mr. Speaker, the turpitude of the pending bill amazes one who has
any moral sense at all : obtaining money in trust for the payment of
claims specifically allowed, and then employing it to satisfy claims
specifically disallowed. The sophistry of the report which tends to
justify its c(mclusions is thinner than a gossamer wing. It urges or
tends to urge that these claims were not adjudicated but abandoned;
that in consideration of their abandonment the United States received
certain advantages in the negotiation, and that thereby the citizens
who paid enhanced premiums of in.surance made a sacrifice which it
became the duty of the Government to requite. This reasoning is delu-
sive, were it true in itself. It would have no applicability ; for sums
of money would be diverted and appropriated contrary to the letter of
the trust money intended for other definite purposes. ISut this is the
admirable logic of the rejjort ; and if the arbitrators decide in favor
of the indirect claims, it will inure to the advantage of a few gentle-
men who claim war premiums, but will prejudice us as a neutral na-
tion and injure thereby forty millions of our people, if the arbiti'ators
decide adversely to the indirect claims.
Why, it will benefit forty millions of ]ioople, and it will not inter-
fere with tlie rights of the gentlemen who claim war prcniinins. We
will take care of them, say the .Judiciary Committee; (hey shall be
beneficiaries, law or no law. Happy claimants of llie war prcniiums !
Ingrates if you do not jiraisc, tlu; l^ord for such /.e.-iloMs friends!
Mr. Speaker, perhaps I have dwelt overlongon tlie{|uestion of good
faith upon the part of the Government bt-fore stating with jutipor
j)recision the particular fjuestions whicli are to be settled in this dis-
cussion. The diaraeter of tmr claim against (^reat iJritain, the mode
of determining damages due the, Uiiite<l States, the rejection by tlie
arbiUafoiH of indirect claims, including cl;iinis for eiiliaii<-ed priv
miuniH of insurance, ;ind the ac(|uiescence of the high eontraeliiig
parties in such reje-ction, and finally that such rej(>etion w;is a deter-
mination for(!ver barring such claims, as the language of the treaty
exprcsKCH it, are facts incontestably established.
TIIK nKI.ATIOX OK THE OOVI.nXMICNT TO Till'. FrKK.
The trusteeship of the Governnienl is a fact no less susceptible of
demonstration, so far as these claims for money awards are concerned.
8
The money claims of the Government ^ere rejected, as already in-
dicated; they came nnder one or the other of the following heads :
For transfer of commercial marine to the English flag.
For additional cost in suppressing rebellion.
For expense in pursuing the cruisers.
The United States, as already shown, submitted these claims; they
were adversely determined by the tribunal, and such decision rejoiced
in by oui" Government as one specially favorable to its probable posi-
tion of neutrality. The Government no longer had any pecuniary
interest in the controversy.
Such decision was not the result of a bargain, of shrewd calcula-
tion — a tacit waiver for an equivocal consideration ; it was the delib-
erate judgment of illustrious judges, representing the majesty and
dignity of empires, ujiou certain issues i»resented, honestly and fairly,
according to the rules provided in article 6 of the treaty of Wash-
ington, aud the principles of international law not inconsistent there-
with.
Tables of American claims were presented and accepted as elements
of damage sustained by citizens of the United States. Details of
evidence were analyzed i n determining which particular cruisers should
be inculpated and which exculpated. Extreme i>articularity in the
findings is a feature of the award.
No money award was made to the nation. Any moneys intrusted
to the Government Avere intended for the satisfaction of claims due
to American citizens, as determined by the tribunal.
SUMJI.VnV OF POINTS DECIDED BY THE TRIBUNAL.
Let the award be produced ; let the decision be exhibited.
After first declaring certain vessels to be inculpated, holding that
Great Britain in such instances failed by omission to fulfill duties
prescribed in the first, second, and third of the rules established by
article 6 of the treaty of Washington, they decide that the United
States are not entitled to indemnity for costs of pursuing the cruisers ;
they decide that prospective earnings cannot properly be made the sub-
ject of compensation, inasmuch as they depend in their nature upon
future and uncertain contingencies ; they decide that all double claims
for same losses shall be set aside, and also all claims for gross freights,
so far as they exceed "net freiglits ; " that it is preferable, in accord-
ance with the spirit and letter of the treaty of Washington, to adopt
the form of adjudication of a sum in gross, rather than refer the sub-
ject to a board of assessors, pursuant to article 10 of the treaty ; that
$15,.50O,00O in gold be jiaid as indemnity by Great Britain to the United
States for the satisfaction of all the claims referred to the considera-
tion of the tribunal, conformably to provisions contained in article 7
of the said treaty; that each and every one of the said claims,
M'hether the same may or may not have been presented to the notice
of, or made, piefeiTe<l, or laid before the tribunal, shall henceforth
be considered and treated as finally settled, liarred, and inadmissible.
The claims in the American case were classified as follows, to wit:
1. The claims for direct losses growing out of the destruction of
vessels and their cargoes by the insurgent cruisers.
2. The national expenditures in tlie pursuit of those cruisers.
3. The loss in the transfer of the American commercial marine to
the British flag.
4. The enhanced i^ayments of hisurance.
5. The prolongation of the war and the addition of a large sum to
the cost of the war and the suppression of the rebellion.
So far as these various losses and expenditures grew out of the acts
9
committed by the several cruisers, the Uuited States are entitled to
ask coHipensatioii and remuneration therefor before this tribunal.
The claims for dii'ect losses growing out of the destruction of ves-
sels and their cargoes may be further subdivided into : 1. Claims of
destruction of vessels and property of the Government «)f the United
States; 2. Claims for the destruction of vessels and property under
the flag of the United States ; 'S. Claims for damages or injuries to
jiersons growing out of the destruction of each class of vessels.
Is it still an ojien (juestion what claims were allowed by the Geneva
tribuual ?
Verily, that grand court, where met republic and monarchy each
the most comiuiinding and enlightened on earth, to have differences
adjusted and grievances recomi»ensed under auspices so peculiarly
grave, was after all a solemn farce. Kvarts, Cushing, and Waite
were joking when th«'y urged indirect claims; they winked at the
arhitratoi-s, and intimated they did not mean what they Said ; it was
a game of bluli', where certain proofs were exhibited to create an im-
pression that certain parties were to be paid for injuries, wheu in re-
ality the moneys were intended for anotiicr purixisc.
How transcendent and exalted such ]>urityl How splendid such
diplomacy! It would be olitaining money inidcr false jirctenses.
Should an individual in ordinary business resort to such mctliods he
would b(; condemned to social outlawry.
rr.F.A OF GOVERXMF.XT OWXEKSUIl" INVAl.U>.
Mr. Siicaker, wrongs arc rarely urged unless fortilied by ))lausilile
pretext. Not so in this instance. A pretext is set forth, but it is
utterly wanting in plausibility. It consists in the allegation that
the payment of the money in a gross sum vested the same absolutely
in the United States, subjtict to their arbitrary disposition.
This position is not tenable for an instant.
First. The act ual proofs, weighed by the arViitrators and accepted as
pertinent to the issues, having reference only to tlie losses of private
individuals l)y certain cruisers, namely, the Alaljama and her tenders,
the Florida and her tenders, the Shenandoah, after leaving Melbourne,
give exact sliape and direction to the award.
Second. The language of the American case, where the exact reasons
are stated why an awarded a sum in gross was desired, as follows :
They panirstly liojn- tli:it tlie- tiiliiiiial will oxoicise the power eoiifeired upon it
to iiwald .1 .Hiiiii, in trioss. to Ijf piiid byCircjit Jiritaiii to the United States. Tlio
injuries of wliich thi- Uuiteil States eoiiiplaiu were eoiiiniitteil many years sinco.
Tlie original wnmjrs to the suti'eiers Ijy theaetsof the insuij^i'iit eiiiisers liave lieeu
increased by tlie ih-lay in niakiiiir reparation. It w ill he unjust to impose further
delay, and the i-xiiense of jiicsentin;; claims to unoflier trihuiial. if the evidence
•which the I'nited States have the honor to )iresi'nt for the consideration of tluwo
arbitrators shall ])rove to be sullicient to eiiabh' tlu-m to determine wliat sum, in
grosH, would be a. just compensation to the t'niled States for the injuries ami losses
of which they coiii]daiii. (Case of the I'nited St.ites, iiart <i.) To sjive delay and
expense, and to exhibit penerous conhd<'nee in our ( ;ov<ii iniu-nt, indiK-ed tlie arbi-
trateis to respond favorably to the idea.
Third. 'J'he oflicial statement of the agent of the United States,
made to the tribunal, as follows :
The object of the, treaty is to iniUmnify the United StateH for the losses suflered
bv their own citizens, and not to inipoHi! a part of that iiidemnitication ii]ton the
United States llieinselvcs. — Volnine 4, pa;;e -l:!, "/ the jmjiers niatimj to thctreat;/ of
}yatihiitgluii.
Fourth. The tribunal, liaving determined as to the vessels incnl-
]pated, examined and seriit iiii/.<'d the, hcIkmIiiIcs and eslimatcHof in-
dividual losses presented by the United States, including eljiitns of in-
surance comiianies, and, on the inspection thereof, awarded a sum in '
10
gross which they conceived to be sufiicient to afford a just indemnity
to tlie citizens so injured. The evidence relating to this point, mak-
ing it unassailable, is found in volume 3, page 579, of papers relat-
ing to the treaty of Washington, containing a statement of the agent,
with reference to certain tables, which contain a list of the vessels
and cargoes destroyed by the inculpated cruisers and the amount
of claims in respect of each, including the amounts of insurance there-
on, couched in the following language :
The claims on the part of private individuals, flins oompntod, verilied, and suh-
niitted, are supported by all the guaiantces of their good faith and their validity,
a.s well for their general amount as for the other facts couceiiiing them which gov-
ernments are in tlie habit of requiring in snch cases from their own citizens. It
thus ap])ears that these computations show the entire extent of all private losses
which tlie result of the adjudications of this tribunal ought to enable the United
States to make compeusatiou for.
Fifth. If the tribunal had not awarded a sum in gross the distribu-
tion would have devolved on a board of assessors, who would have
heard each particular claimant in such cases as it had been deter-
mined by the arbitrators England was guilty, and according to the
measure of damage by them prescribed. That the assessors would
review and set at naught the decree of the tribunal from whom they
borrowed theii" power, to which they would be subordinate, is a sense-
less proposition.
Yet the United States Government were<endowed with the jirecise
powers that would have devolved on the assessors ; none beyond.
The reasons for imposing such duty on our Goverimient are embodied
in the argument of American counsel just quoted from.
Sixth. The action of the United States under direction of the very
officials who conducted the negotiations, the Government binding
itself to pay the Secretary of State in trust, and to pay interest ou
the amount; the constitution of a court and a partial distribution
among sufferers, to the extent of a decree at least — such is the
enumeration of facts out of which a trusteeship on the part of our
Government arises. Either of these facts would suffice to create a
trust.
THE AnOUMEXT OF FOKCE AND INJUSTICE.
The only argument that can be preferred in favor of the proposition
that the award is the absolute property of the Government is that it
is in the Treasury and it has the physical force to appropriate it. Such
is the argument in a minoiity report signed by one member of the
Judiciary Committee. He logically demands that the sum be covered
in the Treasury of the United States and applied to the payment of
the national debt. The majority report, idanting itself on the same
ground, ignoring all the determinations of the tribunal, all the argu-
ments of American counsel, all the declarations of the State Depart-
ment, sanctioned by the President and Senate, insists on distributing
the money, not among all the people who eqtially suffered by a pro-
longation of the war and the mountainous debt ; not to the nation's
defenders, by whose valor a flag was saved from pollution, a Kepub-
lic from absolute wreck ; not to the foundation of grand charities,
where the maimed soldiers, the widows and orphans of those who
have fallen might obtain succor, but among the individuals who paid
enhanced i^remiums of insurance and those also who suffered from
depredations committed by exculpated steamers. Consummate wis-
dom ! They say the fund belongs to the Government ! The claims
were rejected as illegal, but they must be paid. Such marvelous
pffection for a class, without any apparent reason for sympathy or
sentiment, is not comprehensible to ordinary' intelligence.
11
Socrates, by dint of long association, learned to bear with Xanthippe,
hut ho never became infatuated with her. In this case the power of
association is mightier; the infatuation is complete.
Gentlemen, if j'ou but knew the attitude the United States would
occupy, if after consenting, acquiescing, exulting in a determination
involving the rejection of certain claims, it should recognize their
validity aud pay them to the exclusion of others the validity of which
have been acknowledged and moneys paid with a view of discharg-
ing the same, you would scorn this l)ill.
If Congress should pass this law, it can be justly said that our ofiS-
cials do not retlect the average moral sense of the people, for sifth a
breach of moral obligation would not lind toleration in any business
community.
Mr. Speaker, equities doubtless there arc belonging to those gentle-
men who ]taid premiums for war risks, and still more so to those who
suffered direct losses inflicted by exculpated cruisers. I heartily
sympathize with them in their losses ; regret that the award was not
broad enough to make their cl;iinis valid ; but in view of the circum-
stances they cannot be entertained for a moment. Supposing Great
Britain made a demand upon the United States Government for a
claim based on i)remiiuns paid for war risks by its citizens, or losses
snch as I have rcfened to, what would my honorable colleague advise ?
Would ho say, O, yes; certainly; our citizens were paid for like
claims, and tlierciore wo must respond to your demaiuls .' I think
not. He would proudly point to the treaty of Wasliiiigtou and the
award made jmrsuaut thereto aud say we bound ourselves to al)iik'
forever by their text. AVe hold you to the letter tliereof.
Is it in accord with good judgment to do that which will destroy
all the moral ell'ect of the treaty, which will bring to ignoble end a
grand event hitherto supposed to have transpired in the interest of
peace and higher civilization ?
Treaty of Washington, a monument to Christian love, torn down
by the bad faith of tiie great American lie)>ublic ; its advantages and
results ruthlessly and lastingly lost to us all througli our future years.
Mr. Speaker, the peculiar relation of our Government relatively to
this award and its citizens has been jdainly demonstrated. If tlio
Government is a trustee, who are the vcnliii que truHln — a question of
strict law not dependent on discretion, but nevertheless eiiuities are
not absent. It should be judicially determined. From the beginning
this has been the error of our Government; instead of directing specific
claims to be paid it shouhl have authttrizcd a comi)etent court to de-
termine the validity of all claims, subject to the treaty of \\'ashing-
ton and the jiroci-edingH of the tribunal at fJeneva, tugether witlithe
decision and the award f!iei-e made. We woulil then have escaped
an unse«')nly s<ranil>l(; in the lobby. Suitors would have ]>lied courts,
where they belong, insteail of Uegislatures, whose business it is to
make, not to administiTainl construe the laws. Having given a com-
petent court jurisdiction, all else t-ouhl have Ijeen better <ione without
tlieaidor liinderance of legislation ; but tlie mistake has been made,
the Kiibjfct is thrust upon us. We must not shrink fi'om making a just
determination without rt-iVrence to any former action on tht- part of
this body, excepting, of course, cases where judgments are already
rendertd.
The- crtiliii iiur IrimtH ,'ire those who suffered directly by the r.-ivages
committe<l by incnljcited (trnistsrs, l>eing, first, those wlio owin^d the
veHsels and cargoes ilestroyeil and, second, those subrogated to their
ri gilts.
Ill tiiis remarkable discussion of a question as to the execulioii of a
12
trust defined accurately and specifically, none among those advocat-
ing a violation of the trust has disputed the validity of the claims
just indicated. The particular claims i)roved resulted from the
destruction of ninety-four vessels and their cargoes by the Alabama
and Florida and their tenders and the Shenandoah after leaving
Melbourne ; the value of tlie vessels, their cargoes and earned freight
■with interest thereon, the arbitrators after careful computation an-
nounced to be $jl5,5(H»,000, and made the award accordinglj'. Now,
it seems incredible, in the presence of such an adjudication, to sup-
pose any gentleman could doubt that the owners of these vessels
and cargoes, or those who, having paid the losses, became subrogated
to theirrights, are entitled to the award ; that the moneys so paid to
the United States are held in trust for such a purpose.
The former part of the proposition happily escapes the censure of
the Judiciary Committee, that the owners were so entitled. Will the
legal skill and wisdom of the Judiciary Committee enlighten us as to
the distinction of owners and those subrogated to the rights of owners ?
I suppose it is no needful labor to expound the doctrine of subro-
gation and point out its application in this case. Such right on the
part of underwriters was insisted upon by American coiinsel before
the tribunal, admitted by Sir Roundell Palmer, attorney-general of
England, and Chief Justice Cockburn, the English arbitrator. No
good, conscientious lawyer will deny it.
When a merchant makes a contract of insurance with a company
he agrees, upon being paid for his loss, to abandon everything con-
nected with the thing insured to the insurer ; to assign to him all
right of reclamation-^legal parlance, the sjycs rcciqu-raiidi, the hope of
recovery — of the thing lost or any damage from the tort feaser who
occasioned the wrong. The case reported (8 Johnson's Eeport, page
23T, New York) cited by Chief Justice Story with approbation, in
the case of Comegys is. Vasse, (1 Peters, page 193, United States,) sets
forth the doctrine intelligibly and with an aptness so much in iioint
that its full force will be acknowledged.
One question was whether the jury was at liberty to deduct from
the total loss the value of the spes recuperandi. The court held they
they were not. Chief Justice Kent said :
If Fiance should at any future period ajTrce to and actually nial;e com])ensation
for the capture and coudeuination in question, the Government of the TJuited States,
to whom the consideration would in tlie first instance be payal)le, would become
trustee for the paity havint; tlie ecjuitable title to the reimbursement, and this
would clearly be to the deieu<lants (the underwriters) if they should pay the
amoiuit.
This case has wonderful analogy to that of the ttnderwriters in
the matter of the'Geneva award ; it is an exact precedent; as such
I commend it to the favorable consideration of gentlemen who advo-
cate the majority report, though they will doubtless give as slight
heed to Kent and Story as tliey have done to Moses. With an ardent
desire to enlighten my honorable friends, I will cite also for their in-
struction the following cases where the right of subrogation as claimed
here is amply vindicated : Randall vs. Cochran, 1 Vesey, 98 ; Watson
vs. Insurance Company of North America, 1 Birney, 47 ; Rogers vs.
Hosack, executor, 18 Wendell, 319 ; Hull <fc Long vs. Railroad Com-
panies, 13 Wallace, 3G7; Symonds vs. Union Insurance Company, 4
Dallas, 417; Rheulander vs. Insurance Company, 4 Cranch, United
States, 29.
The line of decisions is unbrokc]i. Among the eminent jurists who
have spoken in the cases enumerated, are the I'lnrivaled Hardwicke
of England, the sturdy Marshall of oiu' own country, maintainiiig that
the insurer occupies toward the insured practically the position of a
surety, aud in the words of section d'Mi Story's Equity Jurisprudeuco.
"a surety paying the creditor is entitled to a cession of the debt and
a siibrojjationor suljstitutiou to all the rights and actions of the cred-
itor against the debtor; maintaining further, that the insurance com-
pany, upon payment of the loss, succeeds to the rights of the owner,"
that such company is entitled to all the means of indenniity which
the satisfied owner held against the party primarily liable in this
cavSe — England is such a partj'.
The OAvners had a right to recover from England iu this case, but
no remedy. The United States furnished such remedy; did this*aud
nothing more, save accepting the award in trust for the purposes
thereof.
In Comegys vs. Yasse it was held —
Tliat an abaudonuient passes to the underwriters all the claims of the assured
against a foreign ;;overuuient ou account of illegal capture.
Such was the clear judgment of our Supreme Court.
Mr. Speaker, in view of all these decisions, speaking with one voice,
concurring in the correctness of the principle of subrngation as ap-
plied to cases involved in this discussion, which atllrm also the doc-
trine of the civil law, it is not strange that tho.se interested iu secur-
ing the payment of enhanced insurance i>remiums aud losses occa-
sioned by exculpated crui.sei-s should, in their horror for constitutional
tribujials iu whose temi>les alone justice is secure, take refuge iu
this House, and by appeals to false sentiment persuade gentlemen
■who.se manifold duties ])revent them from critically examining the
legal features of the question to pronounce judgment, in wanton dis- '
regard of moral, legal, and international obligations.
There is but one conclusion which an honest judgment can reach:
that is that the award belongs to the owners of the ninety-four ves-
sels and cargoes destroyed, or to tho.se who, having paid the owners,
are subrogated to their rights; and if the Government in the distri-
bution of the award swerves one hairs-breadth from the faithful
fulfillment of its trust it will bt! guilty of an awful crime against
morality, and we will learn but too tardily that '•righteousness ex-
alteth a nation."
Mr. Speaker, appeals to ]irejudice in determination of a legal (|ucs-
tion where the rights of all the parties are finally adjudicated are un-
worthy this House and should be vi.sited w ith pitiless censure, more
especially when unfounded.
To whom would these moneys, if paid to the insurance companies,
go? Let us see.
The amount of insurance claims aggregate the .sum of S4,002,i'7'2,
iiultuling interest. Mutual insurance companies claim .vJ,(i:M,'j:54 ;
stock companies claim .si, :{()■', (i'Jlt; ten stock couii)anies claiming
§(((»«i,(;'Jl have failed by rea.son of great fires in Chicago aud lUtston,
All tlie mr)neys received by tlie bankrupt companies will relieve
tlie necessitieH of tliose who sufi'ered by these severe fires. Will my
honorable friends of the .Judiciary Committee urg(^ ('ongres.s by
caju'ice and stretch r>f authority to tuiii aw;iy these fnuds from that
undeserving class, all for the sake of equity and just ice ?
Jtut, Mr. ."^pe.iker, n<'arl.\ tlnei-fonrt lis if not quite .ill of those
claims are yirefitired by unitn.-il insui'anceconi]ianies ; they, by organ-
ization, volnntiiry ;i.ssoci;ition, combine ;ind insure; I henisel ves against
loss. Everything they reccrive will be divided among ship-owners
and cargo-owners. ])o fliey morally, of|uitably, or logic.illy shift
their jiosition as owners when by this voluntary arrangenieiit they
14
insure themselves ; are they less owners than before ? Is it not a fact
that losses and yrolits by reason of a species of partnership are mu-
tually borne and losses so divided as to operate without liarshuess
upon individuals?
Do not the gentlemen who made the majority report understand
that these moneys, if i)aid to insurance companies, would be returned
to the very parties who paid premiums and war risks during the
rebellion ; during the period when deiiredations were committed ?
In New York State the statute provides for such a distribution.
These are the unconscionable parties whose devoted heads the
legislative wrath is to be poured. Such are the people whose rights,
more ancient than the Republic, coeval with civilization, are assailed
by the majority report of tlie Judiciary Committee. No sophistry can
mislead, no misrepresentation betray ; the facts are i^alpable. But
infinitely more important thau even these rights is the honor of the
Republic.
Mr. Speaker, it is conceded that the payment of war premiums can
be justified only by the plea that the ownership of the award vests
absolutely in our Government. They were excluded from all consid-
eration hy the tribunal ; no proofs were proftered. Now I beg to in-
quire what special ground there is, what reasons there are, what cir-
cumstances which sanctify these claims ?
We are told they maintained the honor and dignity of the flag ;
that through their inflexible patriotism our commerce survived the
rebellion. Indeed, sir, they are a class of heroes whose history is un-
written. Our annals should blaze with the luster of their deeds, for
I would gladly yield devotion and homage to valiant men, to patriots.
What did they do ? Well, they paid excessive rates of insurance,
and in doing so they exercised their own volition ; they entered into
a contract without any one dreaming that they were fit subjects for
the issuance of a writ de Innat'wo inquirendo. If they met with losses
they were paid in full by the companies; if not, it is fair to assume
these disinterested gentlemen made profit. I doubt whether they
ever indulged the spes recuperandi ; the thought, the vulgar, gross
thought of indemnity never entered as alloy in their pure iiatriotism.
O, np! this was an af ter- thought ; and if the Judiciary Committee
are potent enough it will eventuate a lucky thought. When gentle-
men are terribly overweighted with sympathy, I would suggest they
considered whether the patriotism of these claimants would not have
helped the flag quite as much if it had been expended in our armies
or navies as in the peaceful pursuits of trade.
Mr. Speaker, the cruisers intlicted an equal loss on every citizen of
this Reiniblic ; every soldier was thereby exjiosed to additional rigors
and hardships ; additional graves, a^lditional homes made cold and
desolate, additional burdens of taxation imposed, attest tlie loss.
If restraints imposed by the treaty are tp be disregarded, if the
Government decides to claim it for itself, then let it be distributed
among those whose valor on fields of carnage saved a nation's life :
let it be distributed in bounties and pensions, or, Avhat is yet more
equitable, let it be covered in the Treasury and divided without
liartiality among all the people. Do not idly pretend, gentlemen, that
your bill rewards patriotism.
In all I have said no disrespect is intciided for individuals claim-
ing the enhanced premiums ; they rely upon the advice of learned
counsel ; my arrows are aimed at the shallow argument which does
them gross injustice. This bill enacted into a law, France and Eng-
land involved in war ; cruisers fitted out from the harbors of this
neutral repulilic ; England knocks at our door; presents claims foj*
15
war premiiiuis. We say. " Have you forgotten tlie Geneva award given
pm-suant to the treaty of Washiugtouf "' England will say, " No ; but
while I remember the smart Yankee trick of the American Republic,
which, disclaiming all concern about indirect claims, contrived under
the guise of a gross sum to collect and distribute them all."'
What a spectacle then would the glorious Republic jiresent! Con-
victed of treachery to treaty obligations, of misapproitriatic* of mon-
eys intrusted to it in a iiduciary capacity. The tableau would be
indeed interesting if ray honorable friend and colleague should hap-
pen just then to be the Secretary of State.
Perhaps England would say, "We discard the treaty you hafc vio-
lated ; we demand damage as though it had never been signed."'
What a pitiable plight ! Would my honorable friends pride them-
selves as wise lawyers and considerate legislators ? The peoi^le would
be entirely indili'erent about the cost or the size of their head-stones.
If the British Parliament should euact a law declaring the treaty
of Washington a nullity, we would invoke upon it tlie execrations of
mankind ; luid yet we are asked by this bill to do that which in En-
gland would be deemed infamous.
Mr. Speaker, there are among those claiming enhanced prcmiuuts
gentlemen who recognize the meaning of a sacred compact and the
national obligation to respect the same, who disdain to receive wliat
does not belong to them. I refer to Grinell, Minturn «S: Co., of the
city I have the honor in part to represent, who frankly write, in a
letter dated January d, 1874, as follows :
After tlio decision of the Geneva l)oard of arbitration, disallovrin^ the claims for
■war premiums, vre supposed that all chance of our receiving auythin;; for those
claims was ended, and the idea of ni.akin,^ an allowance to clainiautsof this chaiuc-
ter, by means of takiug away from the insurance companies the amounts allowed
by the Geneva board in satisfaction of their direct chiims for hisses of ships and
cargoes vested in them as assignees, by abandonment or otherwise of the claims of
the original parties, is an idea which certainly never would liave occurred to us.
The letter, a part of Avhich I have .just read, indicates how this
question addre.s.ses itself to the commercial miiul, which, in obedience
to the dictates of intelligent .self-interest, always recognizes the full
force of honesty and integrity in all business transactions.
In the court of Alabama conunissioners, in the case of West vs. The
United States, this straightforward language is employed:
Does not natir)nal courtesy and good faith reiinirc of us to su]>pose that Crtngrcas
in creating tin; court never intended we shonhl distribute the fund other tlian for
tlie purj)oses Great JSritain supposed she was jiayingit/ Sni>pose, f<u' instance,
Congress had cho.sen to keep half the fund and convert it into the Treasury of llio
nation, or had directed tills i-ourt to distiibute it among those wlio had been in.jured
by the teiToi' and iilami caused by the insurgent eruisc-rs, or anion;: lIllls(^ who bad
Buffered loss by tin- depri'datioiis of leliel eiiiisers other I ban the .Vlabama, Florida,
and .Shenaiidoali. In siieh f:ises woiibl not Great liritaiii have ba<l <'ause to complain
tluit HJie had been misled, overreached, deceived f Would our (iovurumeul have
been uclitig in giMul faith in making such disposition of this fund ,'
Snch were the pertinent queries that occured to the judicial mind
accustomed to weigh ami determine nnder the Kanction id" an oalli!
.*^nch are, not the jiertini-nl ((iieries tliat occur to llic mindsof the in.-i-
jority of onr .Indieiary ('oniMiittee, which tor their sakes I regret.
'l"lir! .Indieiary Commit lee at least respects il.s preileeessor in tlni
I'orty-thinl Congress. Where the mighty IJntler led, it fears not to
follow.
The foririrr committee are entitled to the credit of «)rigiiiality, bill,
what honor will posterity award to the ]>resent committee f
.Mr. Speaker, the m.-ijoiity report in predicated ii|)on a false notion
that lih' el.iimH in question ar<'againsf the I'niteil .States. When'for.-
liieir warrant for this con' lunion / The, United Stat<'s (Jovernmeiit
IG •
comuiittcil no wrong in tbo premises ; no daaiage occurred by reason
of their neglect. The wrongs done for which tlie award was made
resnlted from the negligence of P^ngland. All claims were against
England ; the claimants, nnalde individually to press their demands
against a foreign government, invoked their own Government to act as
sponsor and agent. On the 'I^id of September, 1865, the Department of
State isAed a circular in the following form:
Dei-aktmext of State,
Wanhinijton, September 22, 1865.
Citizens of tlio TTnited States having ilaims anjaiiist foreijcn governments, not
founded in eontract, wliicli may liave oiijiinated .since the 8th of February, 1853,
will, without any delay which can be avoided, forward to this Department state-
ments of the same, under oath, accompanied by the proper i^roof.
* ^- * * * * * '
It is proper that the interposition of this Government with the foreifjii government
against which the claim is presented should be requested in express terms, to avoid
a possible objection to the Jurisdiction of a future connaission ou the ground of the
generality of the claim. Claims of citizens of the United States against this Gov-
ernment growing out of the late insurrection are under cognizance of other De-
partments, of the Court of Claims, or are a subject for an .appeal to Congress.
Were the majority of the Judiciary Committee cognizant of this
letter ? Did they note the manner in which the claims were des-
ignated ; the distinction made between claims against Great Britain
and claims against the United States ; the instructions given to such
claimants? If so, what an astonishing assumption that the obliga-
tion to jjay the claims in question devolved upon our Government as
such rather than upon it as the custodian of a fund, charged with a
duty in making disposition thereof!
The treaty, the proceedings before the trilmnal, the records of the
Secretary of State, the action of Congress, the arguments in Ameri-
can case, the nature of the matter in itself, are so many i)roofs, clear
and explicit, to the eftect that the award wao made to satisfy the
claims of American citizens against Great Britain, and the United
States were intrusted with the task of custody and distribution.
Mr. Speaker, a commanding duty, one of uuequaled dignity and
consequence, awaits our performance. The rights of the respective
parties, whose demands for this award depend upon our action, have
already been determined by irreversible decree. We have yielded
thereto our acquiescence and expressed therewith our satisfaction.
We have accepted a trust subject to its conditions. If we fail in ex-
ecuting it, so as to escape the whisper of censure, better, a thousand-
fold, that the treaty of Washington had never been.
What is ill-gotten rarely thrives. Arbitration would henceforth be
spurned and discarded as a mode of adjusting international difficulties.
A reimblic would sink into deserved obloquy, the companion of
semi-barbarous nationalities, whose distinction consists in wanton
disregard of sacred treaties ; a shame on our part infinitely nuiltij>lied
because of the crime against humanity involved in provoking a fre-
quency of wars.
Whatever scrupulous honor shall demand or strict propriety sug-
gest, let that be done. If rejected claims must be paid, let some other
fund be provided. The Geneva award is English money, not ours.
To use it as our own would be turpitude. Law, not cai)rice, should
be the oracle.
That our glory may be dimmed by no unworthiuess ; that the treaty
of Washington may be a presage of a holier and happier futurity ;
th.at it may be hailed by all the peoples of the earth as a rich, sure
Xdedge of enduring peace among the nations, let this last act on our
part, the execution of the trust, be honestly, piously performed.
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