THE APPEARANCE OF SHARP PRACTICE IN "THE AMERICAN CASE." T HE
more we consider "the American Case," the more painfully the inexplicable, or if explicable, discreditable forcing of the natural meaning of the Treaty, and of the Protocols which gave rise to the Treaty, strikes upon our minds. We have never been amongst those to decry the American people, or even the American diplomacy. It would be impossible to speak with more cordial respect of any nation on the surface of the earth than that with which we have uniformly spoken of the great Transatlantic Republic, not only in relation to its recent civil struggle, but in relation also to the particular grievance against England which is now the subject of arbitration at Geneva. Of the American Commis- sioner there, Mr. Adams, who so long and so honourably con- ducted the duties of his difficult and responsible embassy in London, we have repeatedly expressed our very high esti- mate. We have, moreover, steadily maintained that if, while England had been repressing an insurrection, such a cruiser as the Alabama had escaped under precisely similar circumstances from an American port to cruise against British commerce, the English people would have felt the grievance not less keenly than the American people have actually felt it, and possibly even have given more arrogant and insulting expression to their feelings than the American people have actually given. No one, therefore, can justly accuse us of coming to the consideration of "the American Case" -with prejudiced eyes, expectant of evil, and determined to see what we expected. Nor need we add that, as a matter of course, we assumed that the American Case' would demand, and fairly demand, much which at first sight we should think unjust, and decline to concede. That must always happen in every controversy, from the very fact that there are two sides to the question, and that those who stand on one side see much which those who stand on the opposite side fail to see, and fail to see much which their opponents see. But we confess we did expect that the terms of the Treaty and the language of the Protocols would be interpreted as well by the American Government as by our own in their natural and straightforward meaning. We should have been as incredulous, if anyone had told us that claims would be raised which, on the obvious construction of the preliminaries of the Treaty and the Treaty itself, had been explicitly abandoned, as if we had been told that Lord Mayo had deliberately over- reached an Indian Prince. We believe the American people to desire frank and ingenuous dealings with all nations, and above all with Great Britain. We believe that no Americans desire that frankness and ingenuousness of policy more earn- estly than General Grant and Mr. Fish. Yet it seems to us in the highest degree difficult to explain the procedure of the American Government in the matter of this arbitration in any manner which does not contain a flavour of the unscrupulous attorney's sharp practice. We should be loth indeed to assert that it is so. We will still believe that some explanation may be given which removes the strong apparent presumption of unfair and almost crooked policy. But that the difficulty should strike any impartial critic of the circumstances will be plain to everybody who only considers the following facts.
At the Conference held at Washington on March 8, the Ameri- can Commissioners, after remarking that "the loss and destruc- tion of private property which had thus far been presented amounted to about fourteen millions of dollars (say £2,800,000) without interest, which amount was liable to be greatly increased by claims which had not been presented," and that "the cost to which the Government had been put in the pur- suit of cruisers could easily be ascertained by certificates of Government accounting officers ;" added, that "in the hope of an amicable settlement, no estimate was made of the indirect losses, without prejudice, however, to the right to indemnifi- cation on their account, in the event of no such settlement being made." At the same sitting, "the American Commis- sioners further stated that they hoped that the British Com- missioners would be able to place upon record an expression of regret by Her Majesty's Government for the depredations committed by the vessels whose acts were now under discus- sion. They also proposed that the Joint High Commission should agree upon a sum which should be paid by Great Britain to the United States in satisfaction of all the claims and the interest thereon." The British Commissioners of course declined to agree upon any such sum, as their contention was that they had, at all events, a strong case in the eyes of any impartial authority against their liability at all, but said they were willing to refer the question of their liability to a fair arbi- tration; and in the sitting of the 5th April, the American Commissioners, having referred "to the hope which they had expressed on the 8th of March," inquired "whether the British Commissioners were prepared to place upon record an expres- sion of regret by Her Majesty's Government for the depreda- tions committed by the vessels whose acts were under dis- cussion ;" to which an affirmative answer having been given, "the American Commissioners accepted this expression of regret as very satisfactory to them, and as a token of kindness, and said that they felt sure it would be so received by the Government and people of the United States." Now, we ask, would a settlement of the differences between
the two peoples agreed upon under such circumstances and in such terms as these be regarded by any sober judge, in the absence of any explicit or implicit declaration to the contrary, as an "amicable settlement" or not ? Be it observed that the American Government had expressly waived any estimate of "the indirect losses" "in the hope of an amicable settlement, without prejudice, however, to the right to indemnification on their account, in the event of no such settlement being agreed to." In reference to this "amicable settlement," the American Government had laid special emphasis on a British expression of regret that the depredations had taken place,—an expression of regret agreed to by the British Government, and accepted by the American Govern- ment "as very satisfactory to them," "as a token of kind- ness," and as certain to be so received by the Government and people of the United States. It is quite true that at the sitting of the 8th of March the American Commissioners had also expressed a hope that the British Commis- sioners would agree at once to pay down a lump sum by way of indemnity without any reference to arbitra- tion, and that this was declined. But no hint even was thrown out that this was one of the conditions, regarded by the American Government as essential to an " amicable " settlement; the " hope " they had expressed on the 8th March, they themselves referred to again on the 5th April, in refer- ence solely to the expression of British regret ; that hope was gratified ; and if the settlement actually agreed upon by them was not "amicable," what could those expressions of satisfac- tion, and their frank acceptance of the British apology as "a token of kindness," possibly mean ? If a settlement ushered in in each terms is not an "amicable" settlement, how is an amicable settlement to be defined at all ? An " amicable " settlement is, we suppose, a settlement which is regarded with " kindness " and "satisfaction ;" and that the settle- ment actually agreed upon was regarded by the Americans with kindness and satisfaction, the American Commissioners formally avowed, and reduced their declaration to writing in the Protocol. After this, is it conceivable that the solution jointly agreed to was not "amicable "? But if "amicable," the claim for indirect losses was to be waived, and only the direct insisted on. We really cannot see what conceivable answer can be made to this, unless it be that a distinct oral communi- cation was made to Lord Ripon that no settlement would be regarded by the United States as " amicable " in the sense of the declaration of the 8th March, which should refer the claims to arbitration at all, instead of settling them out of hand. Of such a declaration we need hardly say that England has heard nothing, either through the speech of Lord Ripon in the House of Lords, or in any other fashion. Yet, if there were no such declaration, it seems to us clear, beyond the possibility of doubt, that the sense in which the Treaty was negotiated assumed that no claim for indirect losses would be pressed.
Again, judging of the matter not merely by the protocols of the negotiations, but by the Treaty itself, the wording of the Treaty, as we pointed out last week, while it contains not a trace of any intention to demand indemnity for the indirect losses, contains one distinct indication that an indem- nity for only the direct losses was in question. The seventh article, which determines the procedure of the Court now sitting at Geneva, in case it concludes the matter without the help of the Board of Assessors proposed for a more minute investigation of the separate claims, runs thus :—" The said Tribunal shall first determine, as to each vessel separately, whether Great Britain has by any act or omission failed to fulfil any of the duties set forth in the foregoing three rules, or recognized by the principles of International law not inconsistent with such rules, and shall certify such
fact as to each of the said vessels. In case the Tribunal find that Great Britain has failed to fulfil any duty or duties as aforesaid, it may, if it think proper, proceed to award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it." Now that, we admit, does not say anything inconsistent with a demand of indemnity for indirect losses, though it says nothing about any such de- Mend. But then, in the tenth article, the Treaty goes on to specify what is to be done "in ease the Tribunal finds that Great Britain has failed to fulfil any duty or duties as aforesaid, and does not award a sum in gross," and decides that in that case a Board of Assessors is to be appointed, "to ascertain and determine what claims are valid and what amount or amounts shall be paid by Great Britain to the -United States on account of the liability arising from such failures as to each vessel, according to the extent of such
liability as decided by the Arbitrators." Now the language of that article, in assuming distinctly that the indemnity was to be apportioned amongst the vessels named by the Arbi- trators as having escaped through the negligence of Great Britain, suggests most distinctly, if it does not positively affirm, that the losses to be indemnified were of the specific character which could be so apportioned ? How would it be possible to decide how much the Alabama and how much the Shenandoah,—suppose she also were decided to have escaped illegally,—had contributed towards the prolongation of the war and the necessity of transferring the commercial marine to neu- tral flags ? Such an apportionment would be simply impossible, and yet the Board of Assessors is supposed to compute such losses, and such losses only, as can be apportioned amongst the individual cruisers. We maintain, then, that the plan meaning of the Treaty supports, both by what it says and by what it does not say, the plain meaning of the protocols,— that this settlement is an "amicable settlement," and that no claim is to be pressed by the United States for indirect losses under such a settlement as this.
And yet the United States' case asks for compensation for the indirect losses due to the transfer of the commercial marine to neutral flags, and for general prolongation of the war ! We affirm that this is, if not sharp practice, wholly unworthy of a great country like the United States, and explicable only by some oral communication of which we have heard nothing, and which we can hardly believe to have taken place. Still our own Government ought to inform us explicitly whether any such explanation can be offered. If it can, we fear our negotiators have been taken in, and do not deserve the credit they had, as we believed, fairly won. If it can not, we fear the United States are guilty of a policy which can hardly be called honourable, and is certainly quite unworthy. We have no wish to decide hastily on the matter. But we do think we ought to have a very speedy and official explanation from our own Government of the apparent in- congruity between the Treaty and the Case. If the United States, in order to win popularity at the elections, should have been guilty of straining to the utmost the letter, and violating the spirit, of their Treaty, we should hope that Congress would call to account instead of supporting so discreditable a pro- ceeding. But we confess ourselves hardly able to believe it, and yet, if that has not been the case, our own Government has been guilty of the blunder of painting its own diplomatic achievement in colours very different from those which the result warrants, and of adding another to the list of its grave recent blunders. That, too, we can hardly believe ; but any third explanation of the matter we are quite unable to suggest.
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