No. 42.
Earl Granville to Sir E.
Thornton.
[From British Blue Book “North America,” No. 9, (1872,) p. 11.]
Sir: General Schenck came to me to-day and said that he had considered the communication which I had made to him yesterday evening, and of which I informed you in my dispatch of that date.
[Page 498]He expressed his regret that the Cabinet-see so much objection to an attempt to settle the difference by a new Article to be added to the Treaty. He had explained to me the difficulty about pursuing the plan of a settlement by an interchange of notes in his statement made to me yesterday, and he desired to do so more explicitly this morning.
It consisted in the decided opinion of the President that he had gone as far as he possibly could without the assent of the Senate in the suggestion of the character of such a note as would be acceptable or assented to by him, in the telegram of the 27th of April. The note presented for his consideration on the part of Her Majesty’s Government, originally and as afterwards modified, involves what the Government of the United States cannot agree to, a withdrawal from the province of the Tribunal of what that Government believes to be entirely within its competence to consider, as the Government of the United States have been unable to accede to the proposal as contained in either of the forms of notes submitted by Her Majesty’s Government; it is on that account regretted that they have not yet seen that they could consent to propose a form for a new Article to the Treaty, which, while it would remove the whole difficulty, would at the same time have the concurrence, if it were agreed to, of the Senate as well as of the President, constituting the whole Treaty power of the United States.
The President, he added, had instructed him to say that he cannot withdraw himself any part of what has been submitted within his conception of the intent and spirit of the Treaty. This he cannot do from his constitutional inability to recede from what the Government of the United States is of opinion has been submitted within the intent and meaning of that instrument. If the British Government should make a demand that it should be so withdrawn, the responsibility the President feels of any failure of the Treaty, which he wishes to preserve and maintain, would be upon them. The President hopes, however, that as the two Governments have not been able to come to an agreement on account of these difficulties, as to notes being interchanged for the accomplishment of this purpose, the British Government may yet see their way to maintain the Treaty in the suggestion of a new Article, as mentioned or suggested in the telegram of yesterday. If they adopt that suggestion, he was directed to say that Congress will adjourn about the latter part of this month, and that time may be saved, therefore, if negotiations on this point should be conducted at Washington rather than in London. If Her Majesty’s Government desire such negotiation at Washington, it might be advisable, in order to save time, to furnish you with instructions.
I expressed my fears that this telegraphic message did not give any hope of a settlement. Her Majesty’s Government saw great objections to a new Article. The words used by Her Majesty’s Government, “in similar cases and similar circumstances,” had appeared to the United States Government as too narrow. The words General Schenck proposed, as suggested in the telegram from Mr. Fish, made the Rule too broad. There was great disadvantage in laying down a rule of vast import, of which neither Government could without the greatest consideration foresee all the possible applications. Was General Schenck sure that such a rule would not exclude many of the claims called direct put into the American Case?
General Schenck spoke of the importance of a new Article in order to correct the Treaty.
I observed that such an argument would be an additional reason for [Page 499] us to object to it, as we should thereby imply that we thought the Treaty required amendment.
General Schenck explained, that what he meant was that if such a rule had been inserted in the Treaty originally, then there would have been no such difficulty as has now arisen, and so if an amendment were made now, providing for such a rule, and relating back to the Treaty so as to become a part of it, all the difficulty that has grown up would fall to the ground. He also said, as to the proposal to modify our note so as to substitute for the words “not to have regard,” &c., the words “will not bring the indirect claims before the Tribunal,” that such a modification would only make the language more objectionable; for that what his Government claims is that these claims are now rightfully under the Treaty before the Tribunal, and the question is not whether the United States shall bring them there, but whether anything can be devised which may remove them from the consideration of the Arbitrators.
I said I understood that the President considered the Treaty included the indirect claims, but that he had only exercised an administrative act in directing that these claims should be put forward in the Case; that it would be simply another administrative act to direct that the Agent should not press for a pecuniary award, but that to adopt our words “not to have regard,” &c., would go beyond his constitutional powers.
If, however, the Senate was willing to consent to give powers to the President, which he deemed that he did not now possess, by the adoption of a new Article, what was his objection to obtaining their consent to an interchange of notes?
I was sure Her Majesty’s Government would feel great objection to interrupting the course of negotiation by abruptly transferring it to Washington.
I concluded by saying that I carefully avoided anything that might be construed into menace, but, in consequence of the views and information he had presented to me yesterday and to-day, I took an unfavourable view of the chances of settlement.
I am, &c.,