It would be vain to attempt to give anything like a detailed account of
what passed or was said in the almost daily interviews and
conversations, and sometimes much oftener than daily, and often lasting
for hours at a time, which took place between Lord Granville and me. I
sought, as my telegrams will show, to keep you continually, regularly,
and clearly informed as to results, and with my last dispatch (No. 224)
I furnished you copies of all the notes and written matter which came to
me with the new Treaty Article proposed by this Government.
Perhaps, however, I cannot better report or explain to you the manner and
spirit with which I sought to present and urge the views of our
Government in this contention about the presentation of the claims for
indirect damages, than by forwarding to you the annexed copy of a paper
which I read to Lord Granville on the morning of the 10th instant.
By referring to my several telegrams of the 9th, you will observe that at
the end of that day, it seemed as if all hope of agreement between the
two Governments must be given up. Her Majesty’s Government had expressed
their decision against the suggestion of a new Article as a mode of
settlement, and I had informed them that no note could be accepted by
the President and assented to which did not embody the conditions
expressed in your telegram of the 27th of April.
But early next morning came the message from Lord Granville asking me to
telegraph you immediately that a Cabinet would be held that day, and
that he wished me to meet him afterwards. * *
I did not wait for the conclusion of the Cabinet meeting, but sought Lord
Granville almost immediately at the Foreign Office. I had made
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up my mind to present once
more to His Lordship, as briefly and yet as clearly as I could, a
summary statement of the views of my Government, and the position, as I
understood it, of the question between us. I had to this end very
hastily prepared myself by reducing what I had to say to him to writing,
in order that there might be no misunderstanding afterward of the points
advanced, or of my language. This was the paper of which I send you a
copy. Lord Granville came out of Cabinet to meet me. I read it to him,
and placed as much of it as was copied in his hands. I afterward
furnished him a full copy. He replied at once verbally by informing me
that Her Majesty’s Government would probably conclude to take the
initiative and propose a Treaty Article, in which case the proposal in
such form as it might be agreed to offer it, would be communicated to me
after the Cabinet had decided; and afterward, on that day, the proposed
article was delivered to me. If my summing up that morning did not
contribute towards bringing this conclusion to the correspondence and
discussion, at least it did not prevent this Government from concurring
in what I regarded as the only effective form of adjustment which
appeared to remain to us.
It is not for me to comment now on the merits of this plan of adjustment
which has been placed before the Senate for consideration. Before this
dispatch can reach you, that body will probably have advised the
President to accede to it, or will have refused its assent. I sincerely
trust that the former will be the decision arrived at. This I venture to
say, not from a desire merely to adopt what seems to be perhaps the only
remaining chance of preserving a Treaty so important to the peace and
interests of the two countries, but because I think the principle
declared in this Article for future observance between the two nations
is one which if settled and maintained must be of inestimable advantage
to the United States. With our chances of being generally neutral when
Great Britain and other European States are belligerent, the benefits of
the rule are to be principally and oftenest ours. Our continental
position, our extended sea-coast, our numerous ports, the enterprising
character of our citizens, and the difficulty of restraining their
spirit of adventure, surely make the rule that would thus be established
more valuable and more favorable to the United States than to perhaps
any other country.
All this we secure in exchange for the surrender of certain claims which
we were pressing before the Arbitrators at Geneva, not with a view to
pecuniary compensation, but only because they were a portion of the
grounds of disagreement between us and Great Britain, upon which that
Tribunal was empowered, for the sake of perfect peace, to make an award,
while we ourselves did not hesitate to admit that it must be to our gain
to have the decision against us. * * *
[Inclosure in No. 49.]
Summary of views of the United States on the
indirect claims read by General Schenck to Earl Granville on
May 10, 1872.
General Schenck, in an interview with Lord Granville, summed up what
he regarded as the present position of the question between the two
Governments in the following remarks, which he had reduced to
writing to prevent misunderstanding of his views or language:
When we parted, after our long conversation yesterday, your last
words to me were these: “I carefully avoid anything that may be
construed into menace, but in consequence of the views and
information you have presented to me yesterday and to-day I take an
unfavorable view of the chances of settlement.” Those words I felt
it my
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duty to telegraph
last night, as I told you I would, to my Government, and I added to
them, “I told Lord Granville that I was of the same mind.”
It was painful to me beyond expression to have to do this—a grave
thing to have to believe that the result of all the labor and care
which led to the making of the Treaty of Washington—the end of all
the hopes which it had inspired for the future of our two countries,
and for the cause of civilization and the nations—was to be but
failure, disappointment, and estrangement, instead of success, close
and lasting friendship, and peace. I have not slept well on that
conclusion to our interview.
If this be the end, then I am well aware that each Government will,
in one form or another, present its explanation to the world, all
the States and peoples of which, it is no exaggeration to say, are
waiting the issue of our attempts to come to a good understanding;
and each party will naturally seek to justify itself and to throw
the blame on the other.
This must be my excuse, at the risk of too much repetition, for one
more effort, which must now, in this pressure of time, be hastily
and imperfectly made, to present the views and position of my
Government in relation to the points on which we so unfortunately
differ.
The difficulty has its root entirely in the opposing interpretations
given to the Treaty “by the two Governments.
The United States understand that it was the intention of that
instrument to provide a mode for the settlement, wiping away, and
blotting out forever of all claims against Great Britain growing out
of the acts of the Alabama and other such cruisers; and they claim
therefore to put forward, and have put forward, in their Case before
the Arbitrators, the whole of their demands for damages, direct and
indirect. This they insist they may rightfully do; and that they are
entitled to ask and expect of the Arbitrators a decision as to each
class of claims, as to its admissibility before the Tribunal for
consideration in the first instance, and if adjudged admissible,
then such award as that High International Court constituted by the
Treaty may think it just within the scope of their powers to make.
But the United States have not desired or expected any award of
compensation from Great Britain for the indirect damages. They have
even been free to admit in advance that it would be better for their
future advantage and the interest of nations generally that the
judgment of the Arbitrators should be adverse to that class of
claims. What they contend for is the right under the Treaty to
submit them for consideration, as a known part of their demands
against Great Britain; and that it is important to both countries
and in the interest of peace and good feeling that every question in
regard to such claims should be solemnly considered and passed upon,
so that they may disappear forever.
Great Britain maintains that it is not within the meaning and
intention of the Treaty that such claims should be placed before the
Tribunal, or that they come within the province of the Arbitrators
to consider and decide upon.
The long argumentative discussion of this point has ended
unfortunately in neither party being able to convince the other of
the soundness of its interpretation.
Each is bound to admit good faith and fair intention in the
other.
Both nations desire mutual and cordial friendship.
Both are earnestly and sincerely desirous to maintain the Treaty.
Some other way out of the difficulty, therefore, must be found if
these objects are to be attained.
Anticipating this irreconcilable disagreement on the point of
interpretation, various expedients were suggested as probable means
for escape from the dilemma, even before the conclusion of the
discussion had been reached; but none of these suggestions were
adopted or acted on, and it is now unnecessary to revive or refer to
them.
At the last, in consequence of a conversation between himself and the
British Minister at Washington, Mr. Fish was led to believe that Her
Majesty’s Government might make a proposal to the effect that they
would engage that in the future, should Great Britain be a
belligerent and the United States neutral, and should there be any
failure on the part of the United States to observe their neutral
obligations, Great Britain will make or advance no claims against
the United States by reason or on account of any indirect, remote,
or consequential results of such failure, and that, in consideration
of such stipulation, the United States shall not press for a
pecuniary award of damages before the Geneva Tribunal on account of
the claims, respecting which Great Britain has expressed the opinion
that they are not included in the submission, viz, the transfer of
the American shipping, increased insurance, and the prolongation of
the war. If such a proposal should be made by the British Government
they were informed that the President would assent to it. But it was
to be understood that there was no withdrawal of any part of the
Case of the United States, but an agreement not to demand damages on
account of those particular claims, leaving the Tribunal to make
such expression of opinion as it might think proper on that
question. A communication to this effect was made to the British
Government, and a form of a note was given me containing in some
sort a proposal of this kind to be submitted to my Government, but
it was found to be in so many essential particulars different from
the suggestion which was understood to have been made by Sir Edward
Thornton, and
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which had
commended itself to Mr. Fish, that it was not assented to by the
President. A modification of this note was subsequently made, and it
was submitted in an amended form.
The modified note omitted or changed some portion of what was
objectionable in the first proposal, but was still so far short of
what is consistent with the views and position of the United States
that it could not be accepted.
The grounds of objection to the proposal as framed and presented by
this note I will hereafter state.
There was then a suggestion made to Her Majesty’s Government that
their proposal might be submitted in the shape of a new article to
be added to the Treaty of Washington. This would effectually bind
both nations for the future to the observance of the rule which they
might agree on, and would remove, if properly and carefully-framed,
all objections made to an interchange of notes as a secure and
effective mode of reaching the object in view.
But Her Majesty’s Government, it is understood, altogether decline,
or have thus far declined, to open any negotiation to define by
treaty the extent or limit of the responsibility of a neutral to a
belligerent for indirect or consequential damages. I deeply regret
this, and my Government regrets it; and I will proceed to explain
presently wherein it is thought a treaty stipulation has an
advantage over any other form of agreement, and ought to be desired
by both parties.
But to return to the difficulty—nay, the impossibility—of adjusting
the disagreement by an interchange of notes, if we must adopt the
form and substance of the proposal offered in that shape by the
British Government. In the first place, that proposal, as Great
Britain appears to be only willing to present it, either directly
stipulates for, or implies, a withdrawal or abandonment on the part
of the United States of the indirect claims; that is, to regard and
treat them as eliminated from the case presented to the Arbitrators,
and not to be in any way considered or adjudged as the subject of
award by the Tribunal. The British Government holds—notwithstanding
the principle that every tribunal must necessarily, by its very
creation, possess an inherent right and power to decide questions
relating to its own jurisdiction, considering inevitably and at the
very threshold whether a matter brought before it is or is not one
of which it can take cognizance—the British Government holds that
the Arbitrators cannot look at the indirect claims even for the
purpose of determining that they are inadmissible. This is not
overstating their position, extravagant as it may seem, when they
maintain that under the Treaty the United States had no right to put
such claims forward in their Case. But the United States not only
maintains that the mentioning and putting forward of these claims is
rightful, with a view to obtaining a judgment as to their
admissibility, but also hold that it was the intent and meaning of
the Treaty that they should be submitted for whatever they may be
worth, even if this has to be done only with a view to get rid of
them as a cause of difference and complaint between the two
countries.
Now, the President of the United States, acting through his Agent at
Geneva, can put forward, withhold, or withdraw such portion of the
claims as he may think proper. That is not denied. But if any of
these claims are contemplated and intended by the Treaty itself for
submission, such withholding or withdrawing of them by the President
alone is not an extinguishment of them. The power of the President
of the United States is limited by the Constitution. He cannot of
himself make a treaty; nor can he alter, abridge, or depart from the
spirit or intention of a treaty. To do that requires the assent,
advice, and concurrence of the Senate. If the Treaty submits these
claims, as he is of opinion it clearly does, to the consideration of
the Tribunal, then his putting them into the Case, or his taking
them out of the Case, does not dispose of them. If they are
withdrawn by him, they are only laid away, preserved perhaps to be a
future plague, unsettled; kept as a possible source of irritation
and complaint. They can be extinguished only by some judgment of the
prescribed Tribunal appointed for their consideration, or by being
given up through the action of the whole treaty-making power
exercising its constitutional functions in behalf of the nation.
Thus you should clearly see the reason why the President may be able
to agree not to press for a money-award on claims which he regards
as now before the Tribunal, but to leave them to be disposed of or
commented on by the Arbitrators, while he refuses to withdraw them
as not being properly a subject for their consideration.
There is objection, too, to the substance of the proposal made in the
British note. The engagement, to be of value in the future, should
be reciprocal. The note professes to make it so; but how? The offer
of Her Majesty’s Government is to agree that the view which they
have heretofore presented of such indirect claims shall be their
principle of future action and conduct; and that at any time when
the United States may be a neutral, and Great Britain a belligerent,
she will not advance any claims inconsistent with that
principle.
This is vague; and yet it is limited and narrow.
It is a vague undertaking to promise generally to adhere to a “view”
or a “principle,” when there must be a search to ascertain what that
view is, or principle is; and it is a narrow undertaking which
confines itself to an abnegation of the right to pursue
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certain specific classes
of damages, when the particular kinds of injury out of which those
damages may arise are only to be determined by comparison. There
should be general words of description, and a clear enunciation of
principle, in any rule that is to serve as a law of action, instead
of a reference only to special cases that have before occurred;
because no two cases can ever be exactly similar. A rule depending
for its application only on tests of comparison would breed disputes
instead of removing them.
A treaty stipulation might be made free of all these objections.
In the first place there could be no question about its mutually
binding force; and in the next place, being the joint concurrent
declaration of the two parties to it, reduced to a single form of
expression, it would have a precision not likely to be found in a
collation or comparison of the several notes embraced in a
diplomatic correspondence.
Great Britain has not merely denied the right of the United States to
put forward the indirect claims because she denies that the Treaty
admits of any construction which will authorize their being
considered by the Tribunal. She has also taken the .alternative
view, that if, by reason of any ambiguity in the Treaty, or any
possible interpretation of it, such claims could be brought forward
by the United States, it is not to be supposed for a moment that she
ever intended to agree to submit to arbitration demands upon her of
such character and nature that they might be dangerous to the very
existence of any nation, and make the condition of a neutral
possibly worse than that of a belligerent.
To insist that the Treaty is so clear in its terms as in no sense to
admit of the American interpretation, is only going back to and
begging the question which has been fruitlessly discussed. But if it
be so clear in the meaning, then Great Britain, by such a treaty
stipulation, yielding nothing, giving no consideration, would secure
immunity for the future against a class of claims which she asserts
to be always dangerous and improper to be made.
But, on the other hand, if the Treaty does admit of the American
interpretation, Great Britain would obtain that immunity for the
future not only without cost or sacrifice, but with the additional
advantage of escaping from an obligation into which, she .avers, in
that case, she was unwittingly drawn, and which she regards as so
dangerous that, if it does exist, she would rather repudiate a
solemn treaty than abide by what she has done.
What, then, is it that Great Britain will gain if a new article
prescribing a rule against claims for indirect damages be added to
the Treaty? She will have the Treaty with all its benefits to her,
as it now stands, remain intact. She will be relieved from the
responsibility on the one hand of answering to any award against her
which may be made by the Arbitrators in case the American
interpretation is sustained, and on the other from the deplorable
alternative of abrogating her own solemn act. And she will obtain
formal and certain security for the future that she is never to be
held to answer for damages of a kind which she asserts are so
dangerous and uncertain that they ought to be resisted.
Is she prepared to hold back from an invitation to offer or concur in
what must bring such results?
What will be the gain to the United States? The settlement of a safe
rule for the future, and the saving of the advantages to their
interests, which are to be found in the friendly adjustment which
was thought to have been made of all the questions likely to disturb
the relations of the two countries, at the cost of giving up that
portion of their demands for past injuries which they have been
pressing, not with a view to obtaining pecuniary compensation, but
only in the assertion of their right to have such an award from the
Tribunal at Geneva as will make the Treaty of Washington what it was
really intended to be, a means for wiping away forever from between
these kindred nations all differences and complaints as well as all
claims.
