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"Such indirect claims as those for national losses stated in the Case presented on the part of the Government of the United States . . . should not be admitted in principle as growing out of the acts committed by particular vessels, alleged to have been enabled to commit depredations on the shipping of a belligerent by reason of such want of due diligence in the performance of neutral obligations as that which is imputed by the United States to Great Britain :"
which proposed agreement the preamble proceeds to state, in the form of two separate declarations, one by Great Britain and one by the United States each of them intelligible only by reference to previous parts of the preamble: the whole to the conclusion that the President shall make no claim, on the part of the United States, in respect of the indirect claims as aforesaid, before the Tribunal of Arbi. tration at Geneva. The Senate, thinking that the recitals in the
preamble were not sufficiently explicit to furnish to the United States satisfactory basis of transaction, proposed the following substitute:
“Whereas both Governments adopt for the future the prin-' ciple that claims for remote or indirect losses should not be admitted as the result of failure to observe neutral obligations, so far as to declare that it will hereafter guide the conduct of both Governments in their relations with each other. Now, therefore,” etc.
But the Senate's redaction of the article rendered its meaning too clear to be agreeable to the British Government, which, as was shrewdly said of it in Paris at the time, doubted whether release from claim of reparation for the present wrong done by Great
Britain to the United States might not be purchased too dearly by conceding to the United States, in consideration thereof, indefinite and unlimited exemption from responsibility for wrongs of the same nature to be inflicted in all future time by the United States on Great Britain.
Further interchange of dispatches on this subject followed, the British Government insisting on modification of the terms of arrangement proposed by the Senate.
But Congress had now adjourned. The 15th of June was impending, on which day the United States must of necessity present their final argument or lose their hold on the Treaty. If, at the commencement of the difficulty, the British Government had proposed to the American Government to agree to postpone the proceedings of the Tribunal and take time for negotiation in the usual way, a new treaty might have been concluded as contemplated by the two Governments. Such a treaty, requiring careful consideration of phraseology, with discussion and explanations regarding the same, could not be concluded in haste by means of telegraphic communication be. tween London and Washington.
The spectacle exhibited by the two Governments at this time was one of profound interest to the whole world. They were inspired by friendly sentiments on each side. They differed in regard to the construction of a treaty which neither desired to break. Diplomatic correspondence had failed to bring them into concord of opinion. They endeavored to reconcile
this difference by supplemental treaty. Only a few weeks remained in which to negotiate; and the parties were separated by thousands of miles of
It was necessary, therefore, to negotiate, if at all, by telegraph,—an operation quite as novel as had been that of conducting the business of government in France by means of pigeons or balloons during the siege of Paris. But, before it was possible for the parties to conclude a treaty by telegraph, the fatal day arrived, greatly to the embarrassment of the British Government.
PRESENTATION OF ARGUMENTS FOR THE UNITED STATES.
For the course of the United States in this exigency was plain before them: it was to present their final Argument to the Tribunal of Arbitration, in conformity with their own conception of their rights, just as if there were no controversy on the point between them and Great Britain.
The President of the United States was immova. bly fixed in the purpose not to withdraw the controverted claims, nor to abstain from making claim before the Tribunal in respect to the so-called indirect losses, except in consideration of a new treaty regard. ing the same, satisfactory to himself and to the Senate of the United States.
In a dispatch of the Secretary of State to the Minister at London, of the 28th of May, 1872, the inducement and object of the United States, in persisting to retain these claims before the Tribunal, are summarily stated as follows:
1. “The right under the Treaty to present them.
2.“To have them disposed of and removed from further con troversy.
3. “To obtain a decision either for or against the liability of a neutral for claims of that description.
4. "If the liability of a neutral for such claims is admitted in the future, then to insist on payment by Great Britain for those of the past.
5. “Having a case against Great Britain to bave the same principle applied to it that may in the future be invoked against the United States."
Of these considerations, the last four, it is obvious, are the complete justification of the insertion of our national claims in the Treaty and of their presentation in the Case."
Hence the duty of the Agent and Counsel of the United States, having charge of the judicial investigation pending before the Tribunal of Arbitration, remained the same in the interval between December 15th, 1871, and June 15th, 1872, whatever diplomatic discussions or negotiations might be going on between the two Governments. Our instructions were definite and peremptory, as the British Government well understood, to prepare the Counter-Case for the United States, and the final Argument, on the premises of the Treaty as construed by the United States and as explained in the American Case.' Our CounterCase was prepared accordingly, as already stated, and filed in English and in French before the Tribunal. And in like manner we prepared our final Argument.
This Argument, consisting of an octavo volume of 495 pages, after discussing fully the various questions of fact and of law involved in the submission to arbi.
tration, proceeds to examine the particular claims, national as well as individual,—to maintain the jurisdic- ! tion of the Tribunal over both classes of claims,-and to argue the nature and degree of the responsibility of Great Britain to the United States in the premises. In fine, the Argument is co-extensive with the “ Case."
We repaired to Geneva in due time, and at the meeting of the Tribunal on the 15th we presented our Argument as required by the Treaty, and, for the better information of the Tribunal, in French as well as in English. That is to say, the Government of the United States, through the means of its official Agent, complied with that last command of the Treaty of Washington, in virtue of which the Tribunal of Arbitration became formally seized and possessed of all our claims, national as well as private, precisely as if no controversy on the subject existed between the two Governments. The United States were in condi. tion to invoke the judgment of the Tribunal, whether Great Britain appeared or not; for Counsel had ample authority of legal doctrine at hand to show that the Tribunal would have power to act even in the absence of Great Britain.
In the anticipation of this contingency, the British Government requested that of the United States to concur in making a joint application to the Tribunal for an adjournment of eight months, in order to afford to the two Governments sufficient time for further negotiation. Mr. Fish replied that the Government of the United States had no reason to desire such adjournment, although the Government intended, and