« PreviousContinue »
the nation and its Government in a vague charge. But all this is only preliminary matter, on which the English press has not dwelt with much emphasis, feeling perhaps the difficulty of a complete and decisive defence.
“ Proceeding to the question of the right which England had to recognize the Confederates as belligerents, the American Case admits that this right is incontestable, although the Federal Government has not always held that tone. It sees, however, a proof of hostility in the circumstances under which, and the manner in which, England exercised the right. The British contention, in reply, is that the Queen’s proclamation of neutrality was published at the instance of the partisans of the North, and in the interests of the North, and that the proclamation was determined by the news of President Lincoln's proclamation of a blockade and enrolment of militia, two facts which, it has been held by the American Supreme Court, constituted a formal declaration of war. The British Government could not then, it is answered, have deferred pronouncing its neutrality, issuing its immediate instructions to its agents in every port, and warning its subjects of the risk to which the war must expose them. Then, having decided on observing a strict neutrality, England was compelled to grant the Southern privateers the same treatment as those of the North.
“The United States' Case further makes it a charge against Great Britain that she came to an agreement with France as to the mode in which the laws of neutrality were to be carried out, and the Case finds in this concert between the two Powers a new mark of hostile sentiments on the part of England. The answer made to this argument is, that it was absolutely necessary from the moment the war broke out to bring about a common understanding of all the neutral Powers, and that the readiest means for doing this was a preliminary agreement between France and England, whose example and influence were likely to draw along in the same course of policy the other States.
“After these preliminary recriminations, the American Case approaches the foundation of the discussion---that is to say, the manner in which England has understood and practised the duties of neutrals. This part of the document which we analyze commences by eulogizing the impartiality of which the United States have never failed to give proof in the character of neutrals in former wars. Every one can, no doubt, write bistory in this fashion ; but they forget at Washington, and the English press very appropriately reminds them, that in the war between Brazil and Portugal out of nearly thirty privateers armed in the ports of the United States half-a-dozen at most were stopped and seized by the orders of the Government; the rest continued freely the course of their depredations upon Portuguese commerce. To the reproaches, more or less well-founded, which they address to her, England replies, not without some appearance of reason, that quite recently, in a time of complete peace, the Federal authorities have allowed bands of banditti to organize them
selves in military fashion upon the territory of the United States, to invade and pillage Canada, and then return and take refuge with impunity in the places where they concerted this culpable enterprise.
* These reciprocal reproaches are not of a character to appease any more than to clear up the discussion. The fault of one does not esclude that of the other; and if the Government of Washington has opened the way to the incursions of the Fenians, they are not more excusable in London for having favoured, or for not having prevented, the departure of the · Alabama,' which had been denounced as a Confederate cruiser. It will be proper, therefore, for the Commissioners at Geneva, instead of stopping at these superficial disputes, to confine themselves to examining positive complicity, and at this point again they will find they have to deal with grave contradictions and difficulties.”
The course adopted by the British Government, after much consideration, was the following, as explained in Parliament by Lord Granville in a subsequent debate (May 13). Having, he said, consulted with Sir Roundell Palmer, who had consented to act as counsel for Her Majesty's Government, and who agreed with him that the American claims transgressed the limits of the reference, he brought the matter before the Cabinet, which, on the 18th of January, decided that it was impossible to submit the Indirect Claims to Arbitration. The result was a suspension of the proceedings of the Arbitration, which was adjourned for two months. Accordingly, on our side, a counter case was sent in to the American Government, relating solely to the question of direct damages, accompanied by a note protesting against the inclusion of the indirect; stipulating that we would not accept any decision or discussion upon that class of claims; and announcing that if the American Government should not have formally abandoned them before the 15th June, the last day for giving in statements, the Treaty and the Tribunal would be regarded by us as at an end.
Much discussion, and not of the most satisfactory kind, took place respecting the mutual "understanding" of the two governments as to these claims, which, it was contended on our part, if not clearly and unambiguously excluded by the Treaty, the protocols, and the subsequent correspondence, had been at all events, tacitly, or, otherwise, abandoned with the knowledge and consent of the American commissioners. Little advantage could be obtained by our reviewing a controversy of which the interest has ceased, and which could not, at the time, be carried on without charges of something approaching to bad faith being advanced, under cover of whatever amount of polite insinuations. It was asserted, on the one hand, that General Schenck, by his presence at a debate in the House of Lords (June 12, 1871), in which Lord Granville strongly asserted his view of the case, had not merely laid himself under the obligation to communicate that view to his Government, but had implieitly assented to it. But it was certainly laying down a somewhat vaguely extensive canon of the duties of a diplomatist to maintain that he was bound,
and his Government through him, by any ministerial statement made to the legislature which he' happened to overhear; nor, after all, were Lord Granville's expressions on that occasion, taken with their context, so distinct and comprehensive as was supposed by controversialists on our side. Lord Granville thus addresses General Schenck on this subject :
" That her Majesty's Government never intended to refer these claims to arbitration, and that in ratifying the Treaty they never contemplated their being revived in the argument before the Arbitrators, must have been obvious to you from the language used in the debate in the House of Lords on the 12th of June, on the motion for an Address to the Queen, praying her Majesty to refuse to ratify the Treaty. On that occasion I distinctly stated this to be the understanding of her Majesty's Government, and quoted the very Protocol of the 4th of May, to which I have referred above, as
a proof that these Indirect Claims had entirely disappeared. When · Lord Cairns, to whose speech allusion has been made in the United
States' Case, subsequently said that extravagant claims might be put in and take their chance, he was met with expressions of dissent. Moreover, Lord Derby, while criticizing the negotiations and the terms of the Treaty in other respects, particularized the withdrawal of Indirect Claims. The only concession,' he said, of which I can see any trace upon the American side, is the withdrawal of that utterly preposterous demand that we should be held responsible for the premature recognition of the South as a belligerent Power, in company with that equally wild imagination, which, I believe, never extended beyond the minds of two or three speakers in Congress, of making us liable for all the constructive damages to trade and navigation which may be proved or supposed to have arisen from our attitude during the war.'
“I observed that yon were present in the House of Lords on that occasion, and you informed me in January that you were present during the speeches of Lord Russell and myself, and that you communicated the next day the full newspaper report of the debate to your Government.''! It
"Sir S. Northcote, in the House of Commons, repeated, in other words, the substance of my remarks on the limitation of the terms of reference; and as his speech is printed in the papers on Foreign Relations recently laid before Congress, it must also have been re-' ported to your Government. But neither on the occasion of my speech nor of his, nor when 'the ratifications of the Treaty were 'ex-" changed on the 17th of June, did you call my attention to the fact that a different interpretation was placed on the Treaty and Protocol by her Majesty's Government and the Government of the United States; nor, so far as her Majesty's Government are aware, was their interpretation, thus publicly expressed, challenged' either by the Statesmen or the public Press of the United States. Her Majesty's Government must therefore confess their inability to understand how the intimation contained in my Note of the 3rd of Feb." ruary last can have been received by the President with surprise."
Sir Stafford Northcote's explanation was given in a letter to Lord Derby, which his lordship communicated to the House of Lords, June 6:
"86, Harley-street, W., June 5, 1872. "Dear Lord Derby,—I observe that in your speech in the House of Lords last night you referred to a recent statement of mine with regard to the negotiations at Washington in a manner which shows me that
have misunderstood my meaning
“ It has been supposed—and you seem to have supposed—that I said that an understanding existed between the British and the American negotiators that the claims for Indirect Losses should not be brought forward ; and it has been inferred from this that we, relying upon that understanding, were less careful in framing the Treaty than we should otherwise have been.
“This is incorrect. What I said was, that we had represented
« to our Government that we understood a promise to have been given that no claims for Indirect Losses should be brought forward. In so saying, I referred to the statement voluntarily and formally made by the American Commissioners at the opening of the Conference of the 8th of March, which I, for one, understood to amount to an engagement that the claims in question should not be put forward in the event of a Treaty being agreed on.
“I will not enter into a discussion of the grounds upon which I came to that conclusion; but will simply say that we never for a moment thought of relying upon it, or upon any other matter outside of the Treaty itself. We thought, as I still think, that the language of the Treaty was sufficient, according to the ordinary rules of interpretation, to exclude the claims for Indirect Losses. At all events, we certainly meant to make it so."
It is unnecessary, after the course taken by subsequent events, to recapitulate the complicated and vexatious particulars of the negotiations between the two countries relative to the withdrawal of these claims. It may suffice to say, once for all, that our Government, amidst much hostile criticism and dissatisfaction, pursued steadily the double purpose of preserving the arbitration and excluding the indirect claims: and it will be seen that their efforts were ultimately attended with success. The following draft of a “Supplementary Article
Supplementary Article” was tendered by our Government (May 10) :
“Whereas the Government of her Britannic Majesty has contended, in the recent correspondence with the Government of the United States, as follows, namely :
“ That such Indirect Claims as those for the national losses stated in the Case presented on the part of the Government of the United States to the Tribunal of Arbitration at Geneva, to have been sustained by the loss in the transfer 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 :'-firstly, were not included, in fact, in the Treaty of Washington; and further, and secondly, should not be admitted in principle as growing out of the acts committed by particular vessels, alleged to have been enabled to commit depredations upon the shipping of a belligerent by reason
a of such a want of due diligence in the performance of neutral obligations as that which is imputed by the United States to Great Britain:
“And whereas the Government of her Britannic Majesty has also declared that the principle involved in the second of the contentions hereinbefore set forth will guide their conduct in future:
"And whereas the President of the United States, while adhering to his contention that the said claims were included in the Treaty, adopts for the future the principle contained in the second of the said contentions, so far as to declare that it will hereafter guide the conduct of the Government of the United States, and the two countries are, therefore, agreed in this respect :
“In consideration thereof the President of the United States, by and with the advice of the Senate thereof, consents that he will make no claim on the part of the United States in respect of Indirect Losses as aforesaid, before the Tribunal of Arbitration at Geneva."
This proposal was, however, controverted on the other side. To the last, the American diplomatists contended that the consideration of the Indirect Claims should be proposed to the Arbitrators, though more, as it would seem, in the spirit of a litigant who cannot make up his mind to surrender any point for which he has made a stand than with any real purpose of insisting on their pretension as a sine qua non. The pending question was discussed in the House of Lords on June 4.
The difficulty of the negotiation at this point was increased by the publication, in America, through the newspapers, of the Supplementary Article in question : a publication which was strongly disavowed on the part of General Schenck. The following, extracts from a debate in the House of Commons (May 27) explains the course which Government thought it necessary to take:
Mr. Disraeli said, I think that the Prime Minister might have felt it his duty to make some statement to the House with reference to the state of the negotiations at Washington; but as he has not done
So, I feel it my duty to ask one or two questions. The House will recollect that immediately before our adjournment for the holidays the right hon. gentleman made a most important and interesting statement on the subject of our negotiations with the United States. I concluded from what he said that Her Majesty's Government had made to the Government of the United States a proposition, the object of which was to terminate the difficulties connected with the Indirect Claims, and with the view of virtually withdrawing these claims from the Tribunal at Geneva. Í inferred, also, that the Government of the United States had received our proposition in a sympathizing spirit, and that the President was prepared to place the proposition in the form of a short Supplementary Article before the Senate for its consideration