16 MARCH 1872, Page 7


WE have not yet seen the American answer to Lord Granville's " friendly communication " of February 3, but the tenor of it is pretty well known to many people in this country, and we fear that though it too is a " friendly com- munication," the best that can be hoped from it is that it augurs fairly well for the conclusion of a new and more satis- factory arrangement, after the present Treaty, at least so far regards the Alabama claims, shall have been declared defunct. It seems to be understood that Mr. Fish cannot and will not consent to withdraw the claim for indirect or consequential damages, but that he has intimated pretty plainly that the Ameri- can Government has never looked for any considerable award under the head of "indirect damages," and it is even said, we do not know with how much truth, that it would agree to declare that the maximum. demand, including both direct and indirect claims should be fixed at 20,000,000 dole. (say £4,000,000 ster- ling). Bat the conciliatory disposition thus shown cannot, we fear, save the Treaty. We have known all along perfectly well that what the American Government, and probably what the American people, care for, is not the money payment, but the triumph of principle. It is impossible for us to admit that a neutral nation may be held responsible, not only for its negli- gence (if any) in allowing cruisers intended to recruit the navy of either belligerent to escape, but for the fanciful influ- ence on the duration of the war which may be attributed to such events. Injurious consequences of this kind, estimated in one case as costing (say) £2,000,000 at most, may be estimated in another case as costing £20,000,000, and in a third case as costing £200,000,000. Indeed, the American Case expressly suggests the higher figures as not inadmissible, though the American Government may explain that in the present instance as a mere one-sided advocate's plea. It is simply out of the question that we should ourselves introduce into international law a principle which may be worked so disastrously to the interest of neutral nations. As was pointed out only the other day by a Belgian writer, such a principle, if admitted at all, might involve absolute ruin to a small country. Belgium might be saddled by France or Ger- many with " consequential damages " for the escape of a cruiser which it would be simply impossible for that country ever to pay, and that impossibility might easily be made the excuse for foreclosing a hypothetical mortgage on the soil of Belgium,—in other words, for annexation. A new precedent of

international practice likely to introduce such confusion into the relations between the weaker and mightier powers of the world it would be a positive crime for England to sanction, and this objection weighs against submitting the " consequential damages" in any feria, and not merely against the possible extravagance of a particular demand.

Besides, as the Times very properly puts it, a rider to the

Treaty of Washington agreed upon now,—without the consent of the Senate,—and limiting the amount of damages which it is possible to claim under the Treaty, would make it altogether a different Treaty, which the Senate would be very likely to repudiate. Indeed, the mere invasion of privilege implied in such an attempt to alter the scope of a Treaty to which the Senate had already agreed, would almost secure a defeat for any government which made the attempt. The only fair way of really modifying now the operation of a Treaty to which the American Senate agreed, as we are told, under one impression of its meaning, while our own Government agreed to it under another and quite different impression as to its meaning, is to alter the Treaty itself, and ask formal leave of the Senate as well as of both the contracting Powers for such alteration. But this means the total abandonment of the present Treaty, at least so far as regards those provisions in it which deal with the Alabama claims. There is no reason why the remainder of the provisions, those affecting the Fisheries' question and the San Juan Boundary question, as to which there has been no mutual misunderstanding, should not go on,—unless, indeed, either party is prepared to maintain that they made sacrifices in these portions of the Treaty expressly in consideration of the concessions made to them in that portion of it which is now to be cancelled. Nor do we see any other possible way out of the difficulty, unless indeed, what is hardly possible, the United States should obtain, independently, from the Arbitrators an opinion that the British interpretation of the Treaty, as barring all consequential damages, is the true one, —in which case of course there would be nothing left to dispute about. It is perfectly clear that we cannot honour- ably submit to the Arbitrators a question on which we are not prepared to abide by an adverse decision ; and on the question- as to the proper interpretation of the Treaty we are not prepared to abide by an adverse decision. As Lord Granville explained last year to the House of Lords, the one concession made to us which, as we understand it, was the -equivalent for the many great concessions made by us, was the barring of the consequential damages, a concession which, as it now seems, was never made at all. Clearly a reconsideration and recast of the contract by all the parties to it is the first condition of a hearty agreement.

Whether such a reconsideration might not be managed with- out anything like a formal rupture, by the friendly reconven- tion of the Commission at Washington to discuss the different interpretations put upon the Treaty and to modify it,—with the full assent of the Senate,—is quite another matter. We for our parts see no objection, nor do we agree with the Times that the " unfortunate " Commissioners who made the existing Treaty should be held incompetent for the work. Mr. Glad- stone and Lord Granville have both expressly and very reason- ably, as well as honourably, said that the whole responsibility of the wording and meaning of the Treaty rests with the- Government, and for our own parts, we do not doubt that the one central blunder,—the willingness to accept awording which, while to our diplomatists and our statesmen it seemed ex- pressly to exclude consequential damages, did not appear so to exclude them to the minds of most American senators,—was the blunder of the Government. The Cabinet must have consi- dered for itself, and considered gravely, whether it was right to insist on an article in the Treaty explicitly renouncing indirect damages. And whether the Commissioners were favourable to such an article or not, whether or not they agreed with the Cabi- net that a certain vagueness in the wording would smooth the way, and help the American Government to give up quietly what it did not choose to give up ostentatiously,—the respon- sibility of deciding on this very grave matter lies wholly upon the Cabinet. It was just a point on which it was impossible for agents, however distinguished, to decide, and on which the decision of the principals should have been, and no doubt was taken. We hold ourselves that there was something slightly unworthy in trying to keep any concession, really made, out .of the Senate's sight ; unless, indeed, the Senators themselves had suggested that course as one which the whole American nation would prefer ; and this of course they did not do. But the unhappy attempt to smuggle the

supposed concession through the Senate, whether sanctioned by our diplomatists or not, must certainly have been authorized by the Government, and therefore we see no possible advantage in a change of agents, though a shrewd, practical lawyer added to the Commission would certainly strengthen it. But whether

the next stage of the negotiations is to be reached through a reconstitution of the Commission or in any other way, one thing now appears all but certain, that the Treaty as it is cannot stand, and that the part of it relating to the Alabama Claims must be formally and openly reconsidered and re- modelled. That this may be done without any explosion of ill-will between the two nations, the wise self-control both of Lord Granville and Mr. Fish seems to hold out justifiable