1 
 
 Cephas Brainerd
 
 sity of californi 
 le: 
 
 r
 
 ARGUMENT 
 
 BY 
 
 Cephas Brainerd, of New York, 
 
 BEFORE THE JUDICIARY COMMITTEE OF 
 THE HOUSE OF REPRESENTATIVES, 
 
 (WITH ADDITIONS,) 
 
 29TH January, 1876. 
 
 THE RIGHTS OF THE UNINSURED OWNERS OF SHIPS DESTROYED 
 
 BY THE NASHVILLE, TALLAHASSEE, GEORGIA, AND THE 
 
 SHENANDOAH BEFORE SHE REACHED MELBOURNE, 
 
 TO PAYMENT OUT OF THE GENEVA AWARD, 
 
 SUPERIOR TO ANY OTHER CLAIMS 
 
 ON THA'f' FUND. 
 
 / NEW YORK: 
 
 GEORGE F. NESBITT & CO., PRINTERS, 
 CORNER OF PEARL AND PIKR STREETS. 
 
 1876.
 
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 iu ARGUMENT 
 
 jV/r. Chairri'tanj and Gentlemen of the Com-'inittee : 
 
 I do not feel called upon to restate all that has been urged 
 in favor of the uninsured owners of vessels destroyed by 
 the " Nashville," "Tallahassee," "Georgia," and the " She- 
 nandoah " before she reached Melbourne. It would be a 
 piece of presumption on my part to attempt to go over the 
 ground so ably covered by Mr. Metcalf His argument, 
 just in all its parts, remains unanswered; it is unanswerable. 
 As bearing upon the general question, and also as answering 
 some observations made here, I beg leave to submit an argu- 
 ment made by me before the Judiciary Committee of the last 
 House. It will be my attempt, in what I have to say, to 
 ^ ^i meet all the propositions of moment presented in the present 
 ^ discussion in favor of the Insurance Companies. Of course 
 V such an argument must be desultory and repetitious in its 
 ^ character. 
 
 \ 
 
 V The able and very accomplished Counsel for the Insurance 
 <j^ Companies stated at the outset of his argument yesterday 
 ^>^ various postulates, as he termed them, of law and of fact, 
 as the basis of his discussion. These he suggested were in- 
 '^ disputable. I may not have understood them correctly ; 
 ^~ but if I did, then suffer me to say that on our side we dis- 
 ^ sent from them wholly. The propositions of law are believed 
 v^ to be without support in the teachings of writers on public 
 -|^ law, and those of fact, so far as material here, w^ere erroneous 
 ^ deductions from documents open to all parties, and whose 
 proper interpretation we are willing to accept. These re- 
 marks are made in the hope that the members of this Com- 
 
 425767
 
 4 
 
 mittee will be induced to scrutinize with more than 
 ordinary care these " postulates " when the printed argument 
 is laid before them. The limits prescribed to me do not 
 allow a consideration of them in detail. 
 
 He also objects to the remark that his clients were en- 
 gaged in a speculation, because odium may flow from it 
 upon them, and as an offset to this he indulges in a high- 
 flown discourse upon their patriotism, as if that exalted ele- 
 ment entered into their insurance computations. We have 
 also had suggestions in this connection about the charitable 
 character of these corporations. And yet I am forced to 
 confess that the popular impression is, that this class of cor- 
 porations in their dealings act uniformly upon a maxim 
 not found in the decalogue, the sermon on the mount, or 
 the writings of St. Paul, but of a lower order and a different 
 origin, viz., "Charity begins and ends at home." Is it im- 
 proper here to suggest that there is a slight inappropriate- 
 ness in the observations made on behalf of these corpora- 
 tions, to the effect that the gentlemen in and out of Con- 
 gress who have opposed the views advocated by them are 
 engaged in perpetrating " a breach of national faith," that 
 they are flagrantly "violating an international obligation to 
 Great Britain," are "shocking the moral sense of the 
 civilized world," "confiscating," and the like? These are 
 hardly appropriate, nor do they aid in this discussion. Liv- 
 ing as my friends do in "a city of fragility," and having 
 huge conservatories attached to all their dwellings, it occurs 
 to me It would be wise for them to argue their cause, and 
 withdraw tor the present from the pastime of throwing 
 stones. 
 
 But it is said it the insurance companies had not pre- 
 sented iheir ••claims," the award would have been but
 
 $7?ooo-<^^oo- This is clearly a mistake, for the award was for 
 losses, not for claims, and all double "claims"' for the same 
 "losses" were rejected. "And whereas, in order to arrive 
 at an equitable compensation for the damages which have 
 been sustained," says the award, not for the "claims" that 
 have been preferred. 
 
 So, too, the letters of the Secretary of State acknowledg- 
 ing the receipt of the claims are referred to ; but what of 
 them? Every man who sent in a claim received the same 
 sort of letter. Those who lost by the Tallahassee in this 
 respect are on a par with the largest insurance company. 
 
 The threat that the insurance companies will refuse to 
 take war risks, if we should chance to be involved in another 
 war, I cannot meet. If it deters this Committee or Con- 
 gress trom the performance of an act of justice, we can do 
 nothing. If it makes these insurance claimants ridiculous' 
 as it certainly does, we are in no position that will justify 
 an objection on our part. 
 
 Ideal Mutual Insurance Companies have been described 
 here by counsel as actually existing corporations. I venture 
 to say that no such company as has been described exists 
 on this Continent. The Atlantic of New York, to which 
 constant reference has been made, is not such. No doubt 
 it issues scrip payable at remote periods, and subject to 
 the contingencies of future business. But here is an existing 
 fund, which by the confession of the mutual company 
 belongs, not to its present dealers, and ought not to be 
 subjected to the contingencies of future business, but to the 
 men who dealt with that Company more than twelve years 
 ago. Take the Atlantic. It has by its own sworn reports 
 an actually invested capital or net surplus of $2,633,926.47
 
 6 
 
 over and above all debts, claims, and outstanding scrip, 
 (Ins. ^Report of JV. Y .. 18^4, p. 8J4.) If mutual, to whom 
 does this money belong? It seems to me that it has 
 now in hand an ample trust fund tor administration, and 
 that it is quite unnecessary for Congress to employ it as 
 an agent to hunt up men who paid war premiums. 
 
 Heretofore the argument in favor of the insurance com- 
 panies has proceeded upon the strict doctrine of the law of 
 subrogation. And in one of the briefs submitted by Mr. 
 Evarts, he distinctly, and in terms, said : " The insurer does 
 not apply for a share of this indemnity because he has lost 
 money during the war. How^ever that may be, it gives no 
 interest in the fund." The claim was a representative one 
 solely. 
 
 And whv not claim as a loser '? Because it is demonstrable 
 from the published reports of these Companies that they 
 did not suffer loss by the war. 
 
 Take the Atlantic : Its losses for three years next pre- 
 ceding our war were 42 per cent, on gross premiums; for 
 four years during the war 46,^0 per cent, on gross premiums; 
 for four years next after the war 48*0 per cent. So neither 
 Company nor insured lost one dollar by the war risks, nor 
 did insurers sutfer a diminution in the amount of dividends. 
 
 Why then should there be decreed a further advantage 
 to the whole body of insurers ? The only insurers who 
 have suffered by the war, are those who paid war premiums. 
 Why should insurance companies be constituted trustees 
 of war premium payers, when these men are before you 
 protesting that they do not desire to be placed in that sort 
 of tutelage ? 
 
 And why should the insurer under the ordinary risk, who 
 is shown by the statistics of the Atlantic to have paid only 
 the ordinary premium, and to have received the usual
 
 dividend back, be allowed out ot this fund a further 
 dividend, to the exclusion of the claims of men who 
 suffered losses by those cruisers, against which our Govern- 
 ment by its concessions, for great international purposes, 
 waived its claims^ Hear the modest but unanswerable 
 statement of one of these claimants. 
 
 " Washington, ^izra., 1874. 
 " To the H. R. Judiciary Committee. 
 
 "During the war of the Rebellion, as a member of the late firm of 
 Walsh, Carver and Chase, I paid to Insurance Companies ^38,548.48, 
 increased premiums for war insurance, as shown by policies now in my 
 possession. On neither of these policies have they ever paid a dollar. 
 The whole amount was profit to the Insurance Companies. Two vessels 
 (the * Delphine' and the ' Alina,') of which my firm owned a part, and 
 on which we had no insurance, were destroyed by the * Shenandoah,' 
 before she went to Australia, by which we lost $14,000. The Insurance 
 Companies now claim that the amount received from England, as indem- 
 nity, should be paid to them, added to their profit of $^8,548.48, and 
 that I should have nothing. Would this be right .? 
 
 " Respectfully yours, 
 
 " B. CARVER, now of 
 
 Carver & Barnes, 
 No. 30 South St., N. Y." 
 
 But should this money go into the hands of the insur- 
 ance companies, when they refuse to give any very distinct 
 information as to what is to become of it *? They propose 
 to make no pledge, except so far as one counsel has stated, 
 that, as regards his clients, it shall go towards paying losses 
 suffered by them in the Chicago and Boston fires. While 
 one President has promised to demonstrate to the Commit- 
 tee, that the rules they have in force for the distribution of 
 surplus earnings, are equitable and just. 
 
 It is openly suggested in the public prints, urged in con- 
 versations with members of each House ot Congress, and 
 covertly argued here, that if this money is not paid to the
 
 8 
 
 insurance companies, Great Britain will have something to 
 say on the subject. This matter was partially stated by 
 Senator Schurz, in his place in the Senate, (Cong. Record, 
 1873-4, p. 3787,) as follows: 
 
 "Thus the agent of the United States repeatedly declared before the 
 Tribunal, that the money to be awarded was wanted, not for the United 
 States, to be distributed by the Government in its discretion, arbitrarily, 
 but for the satisfaction of private claims, inclusive of those of insurers. 
 To repudiate such a declaration would be an act of bad faith, of which 
 no government which has self-respect ought to render itself guilty." 
 
 As to the assumption of fact, which this extract contains, 
 it seems proper to say that I am unable to find any coun- 
 tenance for it in the record of the proceedings. I do find 
 that our agent was instructed not to do any such thing. 
 And I am confident Mr. Davis, our agent, would deny the 
 correctness of the Senator's statement, and that he would 
 find an unqualified confirmation of his denial in the testi- 
 mony of each of the three counsel who assisted him in his 
 ^•emarkable presentation of our case. 
 
 But the suggestion seems to me thoroughly unpatriotic, 
 and even craven. It could not have had its origin with 
 one of our own citizens. I do not think our people have 
 yet become so degraded as to tolerate a presentation to 
 their Government of the views of the defendant in the 
 great litigation, as to the use that shall be made of the sum 
 we recovered. 
 
 The British Government, in effect, disclaims any such 
 right. Mr. Gladstone, the Premier at the time, speaking 
 from his place in the House of Commons, said : "No 
 claims of individuals have been submitted to the arbitra- 
 tion in relation to the 'Alabama.' What was submitted 
 to arbitration was entirely a question between the two 
 Governments." This is decisive, and accords with the 
 instructions to our agent. Confessedly, the Government 
 has the right to distribute this fund to whom it pleases.
 
 according to its own view of" real justice. Then how 
 charming in its coohiess would be the diplomatic interven- 
 tion of Great Britain, in the question ot distribution. How 
 impudent and unfriendly would even its mention be in 
 Parliament. Every man who possesses a spark of national 
 pride would spurn such an interference. The indignant 
 language employed by other nations in like cases would 
 be again evoked. " We require no tutors to instruct us 
 how to govern our own nation." [Wicquefort^ (Digby^s Tr.^ 
 316.) "It is an unheard of thing that a Prince should 
 take upon him to regulate the Council in the Kingdom of 
 another Sovereign." {Id., 320.) 
 
 The Foreign Enlistment Act of England is held by her 
 writers on public law to relate, in its origin and its pur- 
 poses, wholly to domestic affairs. 
 
 Says Mr. Vernon Harcourt, in the letters of Historicus, 
 page 151 : 
 
 " They {i. e., carrying on belligerent operations within the territory of 
 a neutral) constitute an offence clearly punishable at Common Law ; and 
 the Foreign Enlistment Act can only be regarded as a Municipal Statute, 
 intended to provide a convenient remedy against all persons and things 
 within the allegiance of the neutral Crown. And this is what is really 
 meant when it is said that the Foreign Enlistment Act is founded on In- 
 ternational Law : a proposition unquestionably true, if it is understood 
 of the obligation of the belligerent towards the neutral, and not of the 
 neutral towards the belligerent. Every State passes laws to protect itself, 
 and not to protect other nations. It is for this reason that the English 
 Government has constantly refused to enact laws, either penal or other- 
 wise, at the instigation of other Governments, who suggested that they 
 might be essential for their security. The object of the statute book in 
 these matters is to prevent foreign nations injuring us, not to protect them 
 one from another." 
 
 Mr. Seward ventured to take another view of it, and so 
 during the war, and after the decision of the Courts in the 
 " Alexandra " case, our Government became satisfied that, 
 with the views entertained by the British Government, it 
 would be impossible to prevent the fitting out of rebel
 
 10 
 
 cruisers by an entorcement of the Foreign Enlistment Act, 
 against the spirit then prevaiHng in Great Britain. Urgent 
 requests were therefore made to the Foreign Office by our 
 Government for the enactment of a more stringent hiw, 
 coupled with offers to revise our own statute on the same 
 subject, pursuant to suggestions soh cited by us from Great 
 Britain. 
 
 These suggestions were spurned by Great Britain as an 
 impertinent interference with her own domestic affairs, and 
 Earl Russell, September 25th, 1863, {diplomatic Corres^ 
 pondence^ 186^, ^Part 1 ., page ^48^) saw fit to address Mr. 
 Adams in the following language : 
 
 " There are, however, passages in your letter of the i6th, as well as in 
 some of your former ones, which so plainly and repeatedly imply an inti- 
 mation of hostile proceeding towards Great Britain on the part of the 
 Government of the United States, unless steps are taken by her Majesty's 
 Government which the law does not authorize, or unless the law, which 
 you consider insufficient, is altered, that I deem it incumbent upon me, 
 in behalf of her Majesty's Government, frankly to state to you that her 
 Majesty's Government will not be induced, by any such consideration, either 
 to overstep the limits of the law, or to propose to Parliament any new law 
 which they may not, for reasons of their own, think proper to be adopted. 
 They will not shrink from anv consequences ot such a decision." 
 
 Perhaps the famous Webster-Hulseman correspondence 
 shows most plainly the views our Government would adopt 
 in case of British intermeddling in regard to this distribu- 
 tion. It is well known that Chevalier Hiilseman made the 
 private instructions of Mr. Clayton to Mr. Dudley Mann 
 touching his inquiries regarding the Hungarian Revolution, 
 the subject of a diplomatic note. The following is an ex- 
 tract from the reply ( Webster's Works, vol. 6, p. 601 ) 
 
 " With respect to the communication of Mr. Mann's instructions to 
 the Senate, and the language in which they are couched, it has already 
 been said, and Mr. Hiilseman must feel the justice of the remark, that 
 these are domestic affairs, in reference to which the Government of the 
 United States cannot admit the slightest responsibility to the Govern- 
 ment of his Imperial Majesty. No State, deserving the appellation of
 
 11 
 
 independent, can permit the language in which it may instruct its own 
 officers in the discharge of their duties to itself to be called in question, 
 under any pretext, by a foreign power," 
 
 And so I dismiss this suggestion of foreign intermeddling 
 to the contempt it deserves at the hands of those who are 
 to decide the present question. 
 
 Much handle is made of the alleged admissions made 
 arguendo in the British case, of the applicability of the 
 doctrine of subrogation to the matter in dispute. It is quite 
 immaterial what was admitted or denied by opposing coun- 
 sel in that controversy in regard to it. Great Britain was 
 utterly indifferent on this point. Her sole object was to 
 reduce the demand as much as possible, and she therefore 
 sought to exclude the double claims. 
 
 But in the course ot the arguments there is a very re- 
 markable passage by the British counsel. It comes from 
 one of the most eminent of equity lawyers, Hving or dead. 
 Lord Selborne. Note its import : 
 
 "With respect to the insurance companies, it must be remembered 
 that, as against the losses which they paid, they received the benefit of 
 the enormous war premiums which ruled at the time ; and that these 
 were the risks rgainst which they indemnified themselves, (and it cannot 
 be doubted,) so as to make their business profitable upon the whole by 
 those extraordinary premiums. Would it be equitable now to reimburse 
 them, not only the amount of all these losses, but interest thereon, with- 
 out taking into account any part of the profits which they so received?" 
 {Papers, ^c, vol. i, pp. 557, 558.) 
 
 Members of the Committee will say this is striking. It 
 has been urged in other language against the Insurance 
 Companies, in these discussions. This is true, but more 
 than this is true. The principle of this argument has been 
 adopted by this nation, and applied in the distribution of 
 this award. The I2th Section of the Act of 1874 pro- 
 vides : 
 
 " And no claim shall be admissible or allowed by said Court, by or in 
 behalf of any insurance company or insurer, cither in its or his own right ;
 
 12 
 
 or as assignee, or otherwise, in the right oF a person or party insured, as 
 aforesaid, unless such claimant shall show to the satisfaction of said Court 
 that during the late rebellion the sum of its or his losses, in respect to its 
 or his war risks, exceeded the sum of its or his premiums or other gains 
 upon or in respect to such war risks ; and in case of any such allowance, 
 the same shall not be greater than such excess of loss." 
 
 And here let it be observed, Congress, while adjudicating 
 finally upon the alleged subrogation claims of the Insur- 
 ance Companies, has also in terms recognized the right 
 of making compensation for losses occasioned by other than 
 the so-called inculpated cruisers. But if a balance sheet 
 which shall include all the cruisers is to be struck by Con- 
 gress for the benefit of insurance companies that actually 
 made losses, why should not one also be struck for the ben- 
 efit of the uninsured owners who lost by the ''Nashville" 
 or the " Tallahassee " *? 
 
 Heretofore the claim of the Insurance Companies has 
 been asserted upon what Mr. Van Cott terms " the techni- 
 cal right of subrogation." Mr. Evarts, in his printed argu- 
 ment, says, " if the United States were open to legal pur- 
 suit," and Mr. Van Cott says, "if they were justiceable," 
 the payment of this money to their clients could be com- 
 pelled by bill in equity. Here is asserted a legal right, and 
 the value of the assertion is to be determined by legal tests. 
 The application of these tests shows the futility ot the 
 argument. There is nothing in the papers relating to the 
 Geneva Award, construing them justly, but most favorably 
 to these claimants, and giving them all the legal effect that 
 they possess, that sustains this idea. There is no process 
 of reasoning known to the profession, and sustained by ac- 
 knowledged principles or adjudicated cases, which would 
 justify a court in decreeing in their favor. Because : 
 
 1. There are no means for ascertaining whether any allow- 
 ance at all was made by the Tribunal for any specific loss.
 
 13 
 
 2. There are no means for determining what sum was 
 allowed on account of the destructions of any one cruiser, 
 or for the loss of any one vessel. 
 
 3. There are no means for determining what; if any al- 
 lowance at all, was made for any one insured vessel. 
 
 4. For aught that appears, no allowance whatever was 
 made for so much of a ship as was paid for by the under- 
 writers. 
 
 5. 'Ihere is an award of a sum in gross, which is dis- 
 tinctly declared to be, — not for the losses by any particular 
 cruiser, or cruisers in a particular category — not for any one 
 class of losses, — but for all the claims, of whatsoever name 
 or nature, referred by the Treaty to the Tribunal. It is a 
 general verdict on all the issues, with a lump sum as dam- 
 ages. 
 
 6. This general finding and verdict, is a distinct denial of 
 all the facts upon which the bill in equity to enforce subro- 
 gation must proceed, and so a Court ot Equity would hold. 
 
 This view of the award is strikingly illustrated by the 
 colloquy between General Butler and Mr. Evarts reported, 
 after revision, in the printed argument handed to the com- 
 mittee yesterday, (see also my argument ot 1874, p. 9), 
 wherein Mr. Evarts admits it to be the duty of Congress to 
 pay all losses occasioned by the inculpated cruisers, irrespec- 
 tive of their amount, whether presented at Geneva or not; 
 and by Mr. Van Cott yesterday, when in response to a ques- 
 tion by Mr. Frye, he stated that the distribution of the share 
 of this money alleged to belong to the insolvent Columbian 
 Insurance Company, "presented a case for the prudential 
 consideration of Congress as to the disposition of the fund." 
 But if these gentlemen are correct in this, what becomes of 
 all their arguments'? And yet they are unquestionably 
 right, for Congress in its present legislation has so declared.
 
 while the Commission has gone on makmg awards for losses 
 not presented at Geneva. Indeed the question has never 
 been mooted before it, whether any one of all the claims it 
 has ordered paid, was ever in any form before the Geneva 
 Tribunal. If Congress may exercise " prudential conside- 
 ration" in one case, why not in others ? 
 
 The law then is clear. The history of the case is in 
 harmony with the law. The Counsel for Great Britain 
 had objected that new figures and claims had been intro- 
 duced on our part before the Tribunal. Our Counsel 
 answered the objection by this observation, that the point 
 raised was this, viz. : " Whether the Tribunal, in the 
 exercise of the power to award the sum in gross, conferred 
 upon it by the seventh article of the Treaty, should limit 
 itself by the rules and modes of proceedings prescribed for 
 the Assessors in the tenth article." 
 
 In the argument of this point our Counsel insisted that 
 there was nothing in the Treaty requiring the arbitrators 
 to make their decision on the examination of proofs fur- 
 nished by the parties. 
 
 "The gross sum which the Tribunal may award is to be accepted by 
 the United States as a satisfaction of 'all the claims referred to it' (Art. 
 VII.), not of all the z\7i\m% presented by them." 
 
 The italics are those of our Counsel. 
 
 " It is, therefore manifest that the Treaty contemplated that the indi- 
 vidual Arbitrators, in reaching such a gross sum as they might see fit to 
 award, should have regard to all considerations of damage or injury to the 
 United States within the scope of the arbitration, whether presented in 
 detail or not; and that they should be at liberty to award such sum as 
 justice might require, without a minute examination of detailed proofs." 
 {Papers relating to Treaty &c., vol. 3, pp. 634, 635.) 
 
 And so the Tribunal ruled. {[Papers. &c., vol. iv.^ p. .^2, 
 (Protocol xxvi.) A motion was made to strike out sched- 
 ules and estimates furnished by the American Counsel,
 
 15 
 
 " After deliberation, the Tribunal gave its decision as follows : The 
 Tribunal does not see fit to order the withdrawal of the tables presented 
 on the part of the United States, as requested by Lord Tenterden ; but 
 it declares that it considers these documents only as simple elucidations, 
 such as were required by one of the arbitrators. Viscount d'ltajuba, to 
 which the Tribunal will give such attention as is right." 
 
 Our Counsel then proceeded to suggest general consider- 
 ations, which they claimed should enter into this general 
 estimate, mentioning among other things that each ship 
 must be presumed to have a suitable complement of men, 
 and officers, and the like; and they contended that in the 
 award of a gross sum, regard should be had to these losses, 
 as to which of course not a particle of real proof was ever 
 presented. 
 
 Observe, in this final argument on our part, Mr. Davis 
 says the Tribunal "should have regard to all considerations 
 of damage or injury to the I United States, within the scope 
 of the arbitration." What is the scope of the arbitration ? 
 Article I. of the Treaty answers : " Differences .... 
 growing out of the acts committed by several vessels, 
 which have given rise to the claims generically known as 
 the 'Alabama claims';" and .... "Now, in order 
 to remove and adjust all complaints and claims on the part 
 of the United States, and to provide for the speedy settle- 
 ment of such claims" . . . . " growing out of acts 
 committed by the aforesaid vessels, and generically known 
 as the ' Alabama claims,' shall be referred to a tribunal of 
 arbitration." 
 
 Article VII. then provides, " In case the Tribunal find 
 that Great Britain has failed to fulfill any duty or duties^ 
 as aforesaid," [i. e., ' any of the duties set forth in the fore- 
 going three rules, or recognized by the principles of Inter- 
 national Law not inconsistent with such rules,'] " it inay if 
 it think proper proceed to award a sum in gross to be paid
 
 i6 
 
 by Great Britain to the United States for all the claims re- 
 ferred to it." 
 
 Our counsel stated these claims as follows : {Atnerican 
 Case J Papers, ^-c.^ vol. i, p. 185.) 
 
 " 1. The claims for direct losses growing out of the destruction of ves- 
 sels and their cargoes by the insurgent cruisers. 
 
 " 2. The national expenditures in the pursuit of those cruisers. 
 
 " 3. The loss in the transfer of the American commercial marine to the 
 British flag. 
 
 " 4. The enhanced payments of insurance. 
 
 " 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." 
 
 Directly upon the presentation of the American case 
 there arose a general outcry from the British nation, and 
 the arbitration was in peril. It was protested that classes 
 3, 4 and 5 were not contemplated by the Treaty. Our 
 Government having clearly the right to present these claims, 
 as was thought, a decision by the Tribunal was insisted 
 upon. Our adversaries insisted the Tribunal had no jurisdic- 
 tion of these matters. Finally the Tribunal, without deciding 
 whether they had jurisdiction or not, ruled, that if it were 
 ae:reed on all hands that this branch of the case was before 
 them, that "these claims do not constitute upon the princi- 
 ples of international law applicable to such cases, good 
 foundation for an award ot compensation or computation 
 of damages between nations, and should, upon such princi- 
 ples, be wholly excluded from the consideration of the 
 Tribunal in making its award." To this our government 
 assented. {^Pdpers^ vol. ^^ pp. ig-21.) The motive for this 
 assent appears from the telegram of Secretary Fish, (2 2d 
 June, 1872, (Papers, &c., vol. 2, p. 578,) in which he says : 
 "We had no desire for a pecuniary award, but desired an 
 expression by the Tribunal as to the liability of a neutral 
 for claims of that character."
 
 1/ 
 
 Thereupon the Tribunal proceeded with the trial of the 
 case. Practically as all familiar with the history of these 
 transactions know this decision was but a mode agreed 
 upon for fixing an additional article to the treaty, and 
 settling a rule of law for the future. No one doubts but it 
 was a matter of arrangement between the parties represent- 
 ing the two governments at Geneva, while on its face it bears 
 the appearance of a solemn and unsuggested judgment of 
 the Tribunal. These classes of claims were then, by a 
 practical agreement between the litigating parties, not to be 
 taken into account in the estimate of pecuniary damage. 
 All other claims were to be considered, and the Tribunal 
 was, if it saw fit, to award a gross sum to cover them all. 
 
 The VII. Article provided that the Tribunal : (l) Should 
 decide as to each cruiser. (2) Might award a sum in gross 
 for all the claims submitted. (3) Send the case to a board 
 of Assessors to pass upon each individual claim. Obviously 
 the object of the first requirement was to obtain a ruling 
 upon each individual cruiser for the purposes of internation- 
 al transactions in the future. This was to be a settlement 
 of rules of law for future guidance, and in proportion as 
 the rulings approached unanimity they possess value. As 
 to but one ship, the "Alabama," all the arbitrators agreed 
 in result, but as to none was there a full agreement in the 
 reasons of the decision. In rendering these opinions, and 
 making these decisions, the Tribunal performed its duty in 
 announcing principles of public law, as applied to each 
 vessel. They came secondly to the question, should they 
 award a sum in gross under the VII. Article, and they 
 decided to do so. 
 
 So far the record evidence excludes the idea of an award 
 for specific loss. There are two pieces of evidence, of too 
 remarkable a character to be omitted here, confirmatory of
 
 lli 
 
 my deductions from the record. Mr. Davis, in his report 
 to our Government, says ((Paper, S^c, vol. 4, p. S,) " It does 
 not appear in the protocols how the arbitrators arrived at 
 this amount {i. e., $15,500,000.) I am informed it was 
 reached by mutual concessions." 
 
 " Great Britain had presented a table, composed in large part of esti- 
 mates, appreciations, and arbitrary or supposititious averages ; in conse- 
 quence of which the United States presented other tables, to which the 
 British Agent objected that these tables comprehended claimants, and sub- 
 jects of claim, not comprised in the actual schedules filed by the United 
 States ; to which the American Agent replied by showing that the Tribu- 
 nal had before it, in virtue of the Treaty, all the reclamations made by 
 the United States in the interest of individuals injured, and comprised 
 under the generic name of Alabama Claims. Some discussion on the 
 sarne subject afterwards occurred between Mr. Staempfii and Sir Alexander 
 Cockburn, which conclusively prove that the result reached did not accept 
 as binding either the tables presented by the United States, or the deduc- 
 tions therefrom claimed by Great Britain. The estimate of Mr. Staempfii 
 seems to have been the basis of conclusion ; and that estimate is founded 
 on dividing the difference between the American estimate of 114,437,000, 
 and the British estimate of $7,074,000, the mean of which is $10,905,000; 
 which mean does not in any sort represent the actual claims of the United 
 States. Indeed, one of the arbitrators expressly declared that, in arriving 
 at a conclusion, the arbitrators were not to be regarded as making an 
 assessment, or confining themselves to the schedules, estimates, or tables 
 of either of the two Governments," [Cushing^s Treaty of Wash., pp. 
 166-167.) 
 
 The Insurance Companies say, give us a chance to be 
 heard. What do they mean '? Are they not heard '^ Ever 
 since the award was made, their interest has been argued 
 and re-argued, by most eminent lawyers, and the most inter- 
 ested laymen, before the Judiciary Committees of the 
 two Houses of Congress, and privately in the ear of every 
 member of either House whose attention could be com- 
 pelled. Every consideration growing out of the circum- 
 stances connected with the Geneva Tribunal, and out of the 
 relations of the companies to the claims as actually pre-
 
 19 
 
 sented, has been urged. The whole case has been heard by- 
 men who were both lawyers and statesmen, as are the 
 members of this Committee. And these Tribunals thus 
 enlightened, have distinctly decided against their claim, and 
 that decision is of record in the reports of this Committee, 
 and the final legislation which created the Commission for 
 distribution. 
 
 But the corporations are not satisfied with these decisions. 
 They object to the determinations thus far made, because 
 they are made by men who were both statesmen and law- 
 yers, by men who occupied a position which enabled them 
 to invoke Equity in its true and popular sense, as one of 
 the three instruments for reforming the law. They do not 
 want this case decided upon the general considerations which 
 weigh with the legislator, and in the general mind. They 
 want a tribunal which does not possess the power of legisla- 
 tion, and they would tie that tribunal, if possible, down with 
 the bonds of "the technical right of subrogation." This 
 right was half recognized in a bill before the last Congress. 
 It was discovered in the artful disguise of words which was 
 thrown around it, and the statute as it now stands shows how 
 carefully Congress excluded the idea from its action. 
 
 The doctrine of subrogation, though called a rule in 
 equity, is nothing but a dry and hardened rule of law. It 
 possesses no element of equity in any popular or general 
 sense. It is imported from the civil law, and had its first 
 application in English jurisprudence through courts of 
 equity; but it is a misnomer to call it an equitable rule in 
 the popular sense. This rule holds now the same position 
 in the law as that occupied by the right of stoppage in 
 transitu^ which was once a mere equitable right, which 
 courts of law refused to recognize. As late as 1690, {Wise- 
 man vs. Vandenpui, 2 Ver., 20j), the courts of law in an 
 action of trover, held against the right, and a verdict was had
 
 20 
 
 for a plaintiff on a trial of issues out of chancery, where 
 this right was insisted upon by way of defence. Upon the 
 coming of the verdict into chancery, that court refused to 
 sustain it, and held the plaintiff could not recover, because 
 the purchasers or consignees having paid no money on the 
 goods, and having become bankrupt since the purchase, the 
 consignors had the right to get the goods into their hands 
 and prevent them from coming into the possession of the 
 bankrupts. "It was but lawful for them [i. e., the consign- 
 ors,] so to do, and very allowable in equity." But who 
 would think now of applying the term equity in any gene- 
 ral or popular sense to this beneficent rule ? It has been 
 strict law for a hundred and fifty years. {Smitli vs. (Boivers^ 
 2 Esp., ^y8 ; Harris vs. (Pratt, 7 TV. 7. (R.., 24g ; Muller vs. 
 (Pondir, 55 JV. Y. (^., J2^,) (Per curiam, Allen, J., (337). 
 " It had its origin in a court of equity, but has become 
 thoroughly engrafted upon the common law, and is now 
 well established as a legal right." 
 
 But the term equity is used here in a double sense. The 
 insurance companies invoke a strict rule of law, which 
 they term one of equity. They use the word equity for 
 the purposes of popular appeal, as it is employed by writers 
 on the science of government ; meaning thereby one of the 
 modes for reforming strict law, which the creative jurist 
 invokes when a wholly new case arises. Such reforms are 
 sought to be accomplished by legal fictions, by equity — 
 many term it remedial equity — or by legislation. The 
 modern mind in this country and in England prefers the 
 legislative method, and hence distinct courts of equity 
 have, to a great extent, been abolished, and we do not tol- 
 erate law-making courts. 
 
 Bentham perhaps led the way in this by his condemnation 
 of judge-made law; but he, consciously or unconsciously,
 
 21 
 
 followed Lord Bacon, who said, in his (De Augmentis, 
 ((3. viii.^ ytpo. yd) ; 
 
 "Keep within, or rather on this side of, the limits of the example, and 
 on no account go beyond them. For where there is no rule of law, 
 everything should be looked on with suspicion ; and therefore, as in ob- 
 scure cases, be very careful how you proceed." 
 
 So Mr. Jefferson, speaking of the Louisiana Code [Letter 
 to Livingston^ 2^th March, 182^,) " One single object will 
 entitle you to the endless gratitude of society, 'that of 
 restraining judges from usurping legislation." 
 
 But here, as has been abundantly shown, we have an 
 absolutely new case ; and the proposition is, to apply to it 
 an old rule of law, for the benefit of these wealthy claimants, 
 when there are no analogies which justify such application. 
 No Court would, in my judgment, venture upon such a 
 step. 
 
 Says Austin (Jurisprudence, vol 2, p. 640) : 
 
 " Another very common error is to suppose that equity is not a body 
 of laws or rules, but is moulded at the pleasure of the tribunals ; that, in 
 short, equity, as meaning laws, is equity as meaning the arbitriuvi of the 
 judge. This is an error of which, strange as it may appear, even English 
 lawyers of considerable reputation have been guilty. I remember that 
 Mr. John Williams, in Parliament, a few years ago, quoted as applicable 
 to the Courts of Equity of the present day, a passage of Selden, written 
 200 years ago, in which he describes equity as being regulated by the 
 Chancellor's conscience ; and compares such a mode of administering 
 justice, in point of certainty, to the regulation of it by the length of the 
 Chancellor's foot. This description is altogether inapplicable to the 
 Chancellor's jurisdiction at present, when he is as much bound by pre- 
 cedents, and has as little left to his discretion, as any other of the Judges. 
 It is obvious that a Court which does not follow any law or precedent, 
 but decides arbitrarily in every case, could not exist in any civilized com- 
 munity. For by the uncertainty it would introduce, it would defeat all 
 the ends of law, more than an army of robbers." 
 
 So Maine {Ancient Law, 6^) : 
 
 " A time always comes at which the moral principles, originally adopted, 
 have been carried out to all their legitimate consequences ; and then the 
 system founded on them becomes as rigid, as unexpensive, and as liable 
 to fall behind moral progress as the sternest code of rules avowedly legal."
 
 22 
 
 To the same effect (id. p. 66): 
 
 " It is easily seen by English lawyers that English Equity is a system 
 founded on moral rules ; but it is forgotten that these rules are the moral- 
 ity of pasL centuries — not of the present — that they have received nearly 
 as much application as they are capable of, and that, though of course 
 they do not differ largely from the ethical creed of our own day, they are 
 not necessarily on a level with it." 
 
 Such, then, is the condition of a court of equity, so 
 called. It is incompetent to legislate for this new class of 
 cases. Ihe subrogation cases, one and all, cited on the 
 other side do not touch that now under discussion. In each 
 of those there was a distinct fund to which the individual 
 assured was entitled as a matter of strict right. A fund 
 which he could collect, and which was ready to be paid. 
 Here the question is, who shall have a share in the fund? 
 The proposition is to extend the rule of subrogation, and 
 allow insurers who are not losers to take in lieu of losers 
 who were not insured, because the court in some of its in- 
 terlocutory discussions, for international purposes, ruled in 
 a particular way, though they afterwards rendered a gene- 
 ral verdict. 
 
 Says Blackstone ((Bk. 3, p. 432) : 
 
 " It has been said that a court of equity is not bound by rules or prece- 
 dents, but acts upon the opinion of the judge, founded on the circum- 
 stances of every particular case. Whereas^ the system ot our courts of 
 equity is a labored and connected system, governed by established rules, 
 and b.ound down by precedents, from which they do not depart, although 
 the reason of some of them may be liable to objection," 
 
 So, too, Mitford (p. 428) : 
 
 " The distinction between law and equity is never, in any country, a 
 permanent distinction; law and equity arc in continual progression, and 
 the former is certainly gaining ground uj)on the latter. A great part of 
 what is now strict law, was formerly considered as equity, and the equi- 
 table distinctions of this age will unavoidably be ranked under the strict 
 law of the next." 
 
 So then Mr, Van Cott was accurate in the language he 
 employed before the Committee, when he spoke of the 
 " technical right of subrogation."
 
 23 
 
 For the purpose of the distribution now sought, the 
 rules of equity as recognized in the books are entirely in- 
 apphcable. Congress must declare rules applicable to this 
 new case. 
 
 " Many writers of treatises on equity, struck with the completeness 
 of the system in its present state, commit themselves expressly or im- 
 plicitly to the paradoxical assertion, that the founders of the chancery 
 jurisprudence contemplated its present fixity of form when they were 
 settling its first cases. Others, again, complain — and this is a grievance 
 frequently observed upon in forensic arguments — that the moral rules en- 
 forced by the Court of Chancery fall short of the ethical standard of the 
 present day. They would have each Lord Chancellor perform precisely 
 the same office for the jurisprudence which he finds ready to his hand 
 which was performed for the old common law, by the fathers of English 
 equity. But this is to invert the order of the agencies by which the im- 
 provement of the law is carried on. Equity has its place and its time; 
 but I have pointed out that another instrumentality is ready to succor it 
 when its energies are spent." — Maine^s Ancient Law, p. 66-7. 
 
 The instrumentality referred to by Mr. Maine is legisla- 
 tion, and that, these uninsured claimants now invoke. 
 But one case has been cited in the whole of this discussion 
 which has any real bearing on the question involved. I 
 refer to Campbell vs. Mullett^ 2 Swanston, 551. This case 
 was ruled by Sir Thomas Plomer, M.K., after argument by 
 Sir Samuel Romilly, and all the other eminent counsel of 
 the time. The Master of Rolls refused to apply to a case 
 like the present, the doctrine of subrogation, or to recognize 
 strict legal rights as affecting such a fund as this. And 
 though the case was twice argued and involved a large sum, 
 it was never appealed from, and stands as law to-day. And 
 yet, Mr. Romilly may be supposed to have known the law, 
 nor did he lack pertinacity. 
 
 There never sat on the English bench a more competent 
 judge of such questions as are here involved. All Mr. 
 Plomer's studies and great professional engagements made 
 him conversant with the general principles and mode of 
 reasoning which justify us in considering him the statesman-
 
 24 
 
 judge of his time. He said a fund like this was a "donation, 
 not restoration of a former right, but from a new fund 
 belonging to an independent authority, a grant to the 
 sufferer for what he had lost." And so he refused to allow 
 the co-partner of that sufferer to share in such a donation, 
 though the elementary principles of co-partnership law, if 
 applied to the case would have admitted him. Then what 
 have we here ? Nothing but a general tund, a donation 
 applicable under no legal rules, beyond the reach of the 
 instruments which apply those rules between individuals, 
 but awarded to the Government in full satisfaction of all its 
 claims against Great Britain, " generically known as Alabama 
 Claims." Of course it is a fund to be applied by the gov- 
 ernment for the indemnification of those who actually lost 
 by the acts complained of; not for the enrichment of those 
 who did not suffer loss from such a cause ; and to be applied, 
 not according to technical rules, not in pursuance of musty 
 precedents which are baptized into the name of " equity " 
 to mislead the unthinking, but, to use the language of Mr. 
 Yeaman in his elaborate Study of Government, (p. 409), 
 upon principles which " rest in the conscience and sense of 
 justice of the sovereign power." 
 
 The Insurance Companies are so earnest in their desire 
 to appear before some court which can act upon their 
 claims, unhampered by rules fixed by Congress, that it 
 seems proper to illustrate the beauty and practicability of 
 their notion by a bit from recent English experience. 
 
 In 1871 Parliament passed the Albert Life Assurance 
 Association Act {^4 Vic.^ c. ji Local Act). The failure of 
 that corporation had raised so many complicated questions, 
 and presented such a prospect for legal controversy, that it 
 was thought best to cut the knots, and get all the questions 
 out of Parliament, and the controversies out of the courts,
 
 25 
 
 by sending the whole matter to an Arbitrator. The Act 
 contained this extraordinary provision: 
 
 " The arbitrator may settle and determine tlie matters by this Act 
 referred to arbitration, not only in accordance with the legal or equitable 
 rights ot the parties, as recognized in the courts of law and equity, but 
 upon such terms and in such manner in all respects as he in his absolute 
 and unfettered discretion may think most fit, equitable, and expedient, 
 and as fully and effectually as could be done by Act of Parliament." 
 
 Lord Cairns was appointed Arbitrator, and clothed with 
 these broad powers he proceeded to hear and determine the 
 various original questions which were raised; questions upon 
 which little light was thrown by the adjudications of the 
 courts. In the meantime the European Insurance Company 
 failed, and an Arbitration Act, almost identical in its terms, 
 was passed, to dispose of the controversies arising under it. 
 (55 ^^(^■; ^- ^43 Local Act.) Curiously enough, the ques- 
 tions presented by the latter failure were identical with 
 those in the former. 
 
 The last Act was bitterly opposed in Parliament and by 
 the press. The Law Magazine and (Review [18^2, TV. vS.^ 
 vol. 1; p. 480)., denounced it, and spoke of the previous 
 Act as " a shocking precedent." 
 
 Lord Westbury was appointed arbitrator under the second 
 statute, and proceeded to hear the cases. His investigation 
 was most painstaking and cautious. Of the law he said : 
 " It is only justified by necessity, and its necessity is a 
 great reproach to the judicial institutions of the country." 
 [Law Magazine and (Review, i8j2, TV. vS.^ vol. 2, p. jjS ) 
 
 Here were then two most eminent equity lawyers, and 
 ex-Lord Chancellors engaged independently on the 
 same questions, Lord Cairns being in advance. Unfortu- 
 nately, however, for the litigants, these two experienced 
 lawyers and statesmen came to precisely opposite conclu- 
 sions on the question of novation, upon which the whole 
 distribution, and the mode of assessment turned, and dis-
 
 2(> 
 
 satisfaction was universal, for parties had paid in money 
 under the rules adopted by Lord Cairns. There was no 
 help for any one, however, and so a set of parties opposite 
 in interest paid in under the rulings ot Lord West- 
 bury. But Lord Westbury died, and Lord Romilly 
 succeeded him. He did not agree wholly with either 
 ex-Lord Chancellor, and on the main question he dif- 
 fered very seriously with his predecessor; so much so, 
 that he granted re-hearings in some cases where parties had 
 not paid in. [Vide " Capital and Labor]' J^ov. 4, 28^4.) 
 
 The moral of all this is, that the Legislature should, after 
 ample discussion — and surely it has been ample in the mat- 
 ter of the distribution of the Geneva Award — settle at once, 
 and for all interested parties, the rules which are to govern 
 them in regard to the distribution. 
 
 But it is said this Government has taken the fund sub- 
 ject to a trust of some sort in favor of the insurance com- 
 panies. Sometimes it is called a legal, and sometimes a 
 moral trust. Neither phrase seems to be satisfactory to the 
 insurance claimants. It is a trust of such a shadowy and 
 indefinite character that counsel, with all their acuteness and 
 command of language, are unable to frame for it any exact 
 definition. All the facts in regard to the transaction, how- 
 ever, controvert the claim. 
 
 The Johnson-Clarendon Treaty was rejected because it, 
 like many other of our treaties, (some of which were cited 
 in the debate in the Senate on this subject by Mr. Freling- 
 huysen, in 1873,) provided only for the ascertainment and 
 settlement of the claims of citizens That was the merit 
 claimed for it by Mr. Johnson himself, for he said, (Mes. 
 and (boc. i86g, vol. 1, p. 418) " And I am equally satisfied 
 that if the Convention goes into operation, every dollar due 
 
 A
 
 27 
 
 on what are known as the Alabama Claims will be re- 
 covered.'" 
 
 The Treaty of Washington, on the contrary, provided 
 solely for national claims. Article I. provides: 
 
 " Whereas differences have arisen between the Government of the 
 United States and the Government of her Britannic Majesty, and still 
 exist, growing out of the acts committed by the several vessels which have 
 given rise to the claims generically known as the Alabama Claims; * * 
 Now, in order to remove 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 by her Britannic Majesty's Govern- 
 ment, the High Contracting Parties agree that all the said claims, growing 
 out of the acts committed by the aforesaid vessels and generically known 
 as the 'Alabama Claims,' shall be referred to a Tribunal of Arbitration, &c." 
 
 The distinction between the mode of presenting national 
 and private claims, and their treatment in negotiation, is a 
 marked one, and is fully explained and illustrated in the 
 report prepared by Mr. Sumner for the Committee on 
 Foreign Relations on French Spoliations. {fReport of Com.^ 
 JVo. 41, j8 Cong., 1st Ses.) 
 
 Our agent and counsel were distinctly instructed that they 
 were to present simply a national case, and no other; they 
 were told that if an award was made in favor of this Govern- 
 ment by the only person in the whole nation who could 
 speak for it, that the money under the award would be 
 received without any trust or committal as to the mode of 
 distribution, [(Papers, &c., Vol. II., p. 416 ; Vol. III., p. 16 ; 
 Vol III., p.3Jo), and this was announced to the Tribunal. 
 It stood in the very front of the litigation ; and in distinct 
 terms the Government reserved the question as to the 
 insurance claims. 
 
 Why was this done'? Obviously, because the Govern- 
 ment has always dismissed the claim of insurance companies, 
 on the ground that they were paid for the risk they took, 
 and could not ask it to hold them harmless. This appears 
 by the letter of Governor Washburn, cited at page 25 of my
 
 28 
 
 argument of 1874. And of all this, Great Britain, the 
 Arbitrators, and the whole world had notice. 
 
 When Sir Roundell Palmer, in the paragraph of the 
 British argument which I have already quoted, referred to 
 the claims of the insurance companies, he was informed 
 by our counsel, distinctly, but pohtely, that who the private 
 sufferers were, was a matter of no concern to Great Britain 
 or to the Tribunal. The whole passage is as follows, 
 {(PaperSj &'C., vol. 5^ p. ^jo) 
 
 " So far as Great Britain and this Tribunal are concerned, who the 
 private sufferers are, and who represents them, and whether they are 
 insured or not, and have been paid for their insurance, are questions ot 
 no importance." 
 
 The Tribunal, acting upon this view of the case, decided 
 not in favor of individual claimants, not in favor of indi- 
 vidual claims, not on specific vessels, but rendered a general 
 verdict, like the verdict of a jury, of $15,500,000, "for 
 the satisfaction of all the claims referred to the considera- 
 tion of the Tribunal, conformably to the provisions con- 
 tained in Article VII. of the aforesaid Ti'eaty." 
 
 Look now to that Article, and see what the Arbitrators 
 intended by the award. They had before them the notice 
 that this Government reserved to itself wholly, the question 
 of distribution. They had also the right to send the whole 
 case to a Board of Assessors, under Article X., and have 
 each individual claim probed. 
 
 But they did nothing of the kind. They made a general 
 estimate of the amount of damage, in the way that I have 
 already explained, for all the claims referred by the Treaty, 
 not for a i)art of them, and awarded a gross sum. , "^ * 
 
 And why did our Government insist upon this course Y 
 The answer shows the prescience, the sound sense, the ster- 
 ling justice of those by whom it acted. It was done to the 
 end, if it were possible, that every honest sufferer by the
 
 29 
 
 direct act of every one of the insurgent cruisers, inculpated 
 and exculpated, might be paid to the full his real loss ; 
 and who more truly losers than the uninsured shipowners 
 represented here by me ? And so it came to pass that the 
 English Government concurred in this view. Durine: a 
 debate in Parliament, Mr. Andrews asked : 
 
 " If we (/. e., Great Britain,) were obli-ged to pay for damage sustained 
 by the Americans, by reason of the conduct of the ' Alabama,' why we 
 were, not equally bound to pay for -the damage sustained by our own sub- 
 jects by reason of the acts of that vessel ? " 
 
 The Premier, Mr. Gladstone, replied : 
 
 " It appears to be implied that the Government submitted the claims 
 of certain persons not subjects of Her Majesty to arbitration. This is 
 altogether a mistake. No claims of individuals have been submitted to 
 arbitration in relation to the ' Alabama.' What was submitted to arbitra- 
 tion was entirely a question between the two Governments." [London 
 Times, May 24, 1873.) 
 
 Where, then, is the support for this undefinable trust *? 
 Not in the facts connected with the transaction. Not in 
 the mode of arriving at the amount of the award. Not in 
 the final determination and recorded general judgment of 
 the Tribunal. It exists only in the imagination of these 
 insurance claimants and their advisers. 
 
 The refusal of the Tribunal, with Article X. of the Treaty 
 before them, to require an investigation of private claims, is 
 in legal effect their recorded judgment that they rendered 
 no decision in regard to distribution or payment, binding 
 upon any one in law or morals. Their judgment terminated 
 all differences between the two countries upon the matters 
 specified in the Treaty, and there the judgment ends. 
 
 With the adjournment of the Geneva Tribunal, the 
 greatest legal contention in history terminated. It termi- 
 nated with honor to both nations, and by reason of it they 
 stand to-day far in the lead of civilization, and of peaceful 
 
 425761'
 
 30 
 
 progress. Great Britain terminated her connection with 
 the transaction when the damages were paid. The mur- 
 mur of dissent heard from her sliores " was but the echo 
 of the real verdict " of approval and satisfaction. It now 
 remains for our own Government to put the fitting crown 
 upon this great transaction ere it passes forever into his- 
 tory, by so distributing this award as to secure to every 
 man in the nation who suffered a direct loss, by the acts of 
 any one of the insurgent cruisers, the full measure of his 
 real damages. For this purpose the fund is abundant, the 
 equity is clear, and the right and power of the Government 
 is indisputable. 
 
 [t remains for me to thank the members of the Committee 
 for the patience with which they have listened to my share 
 of this discussion, which had already been so greatly ex- 
 tended.
 
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