THE NEW LIGHTS ON THE WASHINGTON NEGOTIATIONS.
‘. CAREFUL study of the correspondence between the
j
British and American Governments of which we just noted the receipt and some leading superficial features last week, will serve perhaps to furnish some explanation of Sir Stafford Northcote's rather startling assertion at Exeter yester- day week,—an assertion not as yet either confirmed or called in question by any of his brother Commissioners,—that the British Commissioners "were distinctly responsible for having represented to the Government that we understood a promise to be given that these Claims [the Indirect Claims] were not to be put forward, and were not to be presented for arbi- tration." Sir Stafford Northcote also remarked that, this being the belief of the British Commissioners,—and, whether his colleagues support him to the full or not, it is at all events his own belief,—" we are of course brought into pain- ful relations with, and painful questions arise between our- selves and our American colleagues upon that Commission," —a remark which has been already illustrated by the action of Congress, where General Butler has brought forward a resolution, already approved by the Lower House's Committee on Foreign Affairs, demanding explanations from the President on a point which deeply concerns "the good faith and integrity of the American Commissioners." But the more we study the sew correspondence and Lord Granville's own carefully written reply to Mr. Fish's very emphatic assertions that no promise of the kind was either hinted at or given, the more probable we think it that Sir Stafford Northcote has greatly over- stated his case, and that his brother Commissioners, when they come to give their evidence, will very decidedly qualify the statement which he has made. And if this be so, Sir Stafford Northcote can hardly be exonerated from blame for importing into the discussion between the two countries so new, irritating, and personal an element,—one which, as he himself hints, and as the Lower House of Congress strongly declares, obviously touches the honour of the Commissioners, —and certainly for importing that element into the contro- versy without the most anxious collation of testimony, and even without supporting by exact words and documentary proof the precise charge which he is disposed to make. Appeals to broken promises not in writing are dangerous things, and speak as ill in one way for those who rely on them, as in another way for those who give them. Should it turn out, as we are strongly disposed to expect, that Sir Stafford Northeote is himself rather putting a mean- ing of his own on the undertakings to which he refers, and interpreting them by the developments they have taken in his own mind since the American Case was put forward, than stating them in the precise form in which they were actually given, he will have incurred a very grave respon- sibility by introducing this bitterest of all elements into the question without adequate evidence and precision ; for this is a case, we must remember, where a difference of the slightest shade of meaning may alter completely the character of an engagement. Certainly Sir Stafford Northcote's assertion is far stronger_ than any made by Lord Granville ; and though of course it is one of the absolute accuracy of which Sir Stafford is himself perfectly convinced, it by no means follows that it is one which will be exactly borne out either by the other British Commissioners or by the Government itself.
It is sufficiently obvious on the very face of the new despatches that the American Government has vacillated a good deal about the Indirect Claims, and that it does feel very uneasy as to the validity of its present position. But it seems to us almost as certain that the British Commissioners fought their battles, so far as these Indirect Claims were concerned, not on any simple and explicit engagement which left neither party any room for subtleties and refinements, but on the adoption of a carefully chosen scientific phraseology, perfectly consistent and complete in itself for its purpose of excluding the Indirect Claims, if investigated by a high-class lawyer, and interpreted carefully by the light of all the precedents, without any poli- tical bias, but none the less open to a great deal of misunder- standing as between the actual Commissioners who negotiated this Treaty. For instance, any one who studies carefully the new correspondence will be struck by the force of Mr. Fish's remark, that while the " concessions " of the British Govern- ment, especially the agreement to be bound in this Arbitration by principles of law which it did not admit to have been actually accepted by the British Government at the time "the Alabama Claims" first arose, are embodied in the Treaty itself as well as in the Protocols, the asserted equivalent for these concessions on the part of the American Government, namely, the waiver of all the Indirect Claims, is not embodied in the Treaty, but only in the Protocols. This is the one strong point of the American Government. And what is the
answer of our Government to it It is simply that the waiver of these claims for Indirect Losses was regarded by us as a condition precedent to the Treaty, and not as a part of the Treaty itself ; and that the Government being perfectly satisfied that these Claims had been waived, and that no demands for other than Direct Losses were covered by the language of the Treaty, they "took the natural course of not entering on a lengthened controversy upon the barren question of injuries for which they believed no claim was presented ;" —to which it is certainly open to Mr. Fish to reply by asking how they could have feared "a lengthened controversy" about the explicit exclusion of claims which they clearly understood to have been waived and never to have been presented. The simple truth is,—and it is conspicuous on the face of this correspondence,—that the British Commissioners dreaded the result of a demand for an explicit barring of the Claims for Indirect Loss, not because they thought that the United States Government wished or intended to press those Claims,—quite the reverse,—but because they thought it would be an invidi- ous duty for the United States' Commissioners explicitly to surrender them. They therefore sought to gain their purpose by a very careful and consistent use of a phraseology intended and adapted legally to exclude such Claims ; and in this, after many battles, of which the general drift must have been, and certainly was, clear enough to the United States' Commissioners, they succeeded. The long memo- randum enclosed by Lord Granville in his despatch of March 20th to Mr. Fish makes out a most coherent and solid legal argument against the Indirect Claims,—an argument against the force of which Mr. Fish struggles vainly, and even helplessly,—so vainly and helplessly that if the English people knew as much of Law as they do of politics, and had as much confidence in the new Tribunal of Geneva as they have in their own Courts of Justice, they would not have hesitated to abide by the result of the reference. But nothing can be clearer than that the British Commissioners in providing for the barring of all the enormous and dangerous Indirect Claims, relied not so much on the waiver in the Protocol and the description of the Treaty in its Preamble as an amicable settlement,—though they really believed that this waiver governed the Treaty,—as on the careful introduction of a special set of phrases which had always been used in one definite sense in the body of the Treaty itself. Thus they carefully limited the arbitration to "Claims," and resisted successfully the introduction into it of any mere "injuries " and " losses " for which no defined claims had ever been formulated and presented. Again, they defined the Claims submitted to arbitration as "the Claims generically known as the Alabama Claims,"—no Claims except for the ships destroyed by the cruisers, and the expense of pursuing the cruisers, having ever been so defined before. And further, they limited them to "Claims growing out of the acts" of the Alabama and her consorts, as distinguished from Claims caused by the mere existence of a hostile navy fitted out in British ports,—a dis- tinction which clearly excluded the Indirect Losses, for it was obvious that the Indirect Claims for prolongation of the war, &c., could not be supposed to grow out of "the acts" of the Alabama and her consorts, but at most out of the English origin of those vessels, for it was not the special " acts " of the cruisers, it was their naval importance, and the anger against England that they caused, which inspired the Con- federate Government with new hope.
We do not doubt, then, that the admitted and reiterated contests in the Commission over these defining and limiting words were understood by both sides to be contests for the express purpose of rendering the vague and unformulated "Indirect Claims" untenable before the Tribunal of Geneva ; nor that the American Commissioners themselves understood that under the Treaty, as finally worded, there would be very little, if any, room for these claims. Even Mr. Fish himself admits this to General Schenck, when he says, at the end of his despatch of the 16th April, that the Indirect Losses—he does not call them " Claims "—" were presented at Geneva not as Claims for which a specific demand was made, but as losses and injuries consequent on the acts complained of, and necessarily to be taken into equitable consideration on a final settlement and adjudication of all the differences submitted to the Tribunal." Nothing is more certain than that Mr. Fish knows, and has known throughout, that the language of the Treaty, legally interpreted, really leaves no room for the demand for compensation for the Indirect Losses, which in fact he gives up altogether as a "specific demand," though maintaining that it might be fairly admitted to swell any "lump sum" to be awarded by the Arbitrators under "one of the alternatives" of the Treaty. But this admission,— no doubt made in the discussions of the Commission itself, just as it is made in Mr. Fish's despatch,—does not imply what we suspect that Sir Stafford Northcote probably took it to imply, that no "Indirect Losses" would be urged upon the Arbitrators, to be taken for whatever they may be worth tinder the Treaty. Lord Granville himself makes no such assertion. He maintains, indeed, and quite justly, that Claims for which no specific demand either is or could be presented, cannot be considered even in relation to the alternative of the "lump sum,"—otherwise the Arbitrators would "give judg- ment on one matter, and inflict a penalty for another matter." But he says nothing of any "promise," and describes to Sir J. Thornton the issue really contested between the British and American Commissioners thus :—" You are aware that the British High Commissioners objected to the adoption of a form of reference to the Arbitrators which might, from its vagueness, be taken to permit the introduction of such [Indirect] Claims, and that it was not until after lengthened discussion in the Commission that the terms of reference, as they now stand in the Treaty, were settled."
Now what does this come to ? To this only,—that the British Commissioners fought for and obtained language which was intended, and on both sides well understood, to have a restricting effect on the Claims which could be validly estab- lished under the Treaty. But it is not very likely that the precise extent of the restriction was ever orally defined or understood between the contending parties, since it was not embodied in the Treaty, while the effect of leaving the " waiver " in the Protocols and not introducing it into the substance of the Treaty, would leave it quite open to the American Commissioners to believe that any Losses whatever might be presented, even though they turned out to be beyond the scope of the reference. In other words, they would think themselves at liberty to let the interpretation of the Treaty itself decide exactly how much was, and how much was not excluded by its terms. They had a general impression, no doubt, obviously entertained by Mr. Fish, that the Indirect Claims would come to grief under the Treaty ; but they may have thought there was vagueness enough in "one of the alternatives,"" the Lump sum" alternative, to include alittle of them,—to include them as a moral consideration aggravating the estimate of Direct losses. The fault of the British Commis- sioners is very obvious. They wished to arrive, and probably did arrive, at the exclusion of the Indirect Claims by a refined legal process appreciable only to lawyers, and after full argu- ment, rather than by a plain negative upon them. They thought they could fight their battle that way best, and no doubt it was easiest to fight it that way ; no doubt, too, any perfect legal tribunal would have given the issue in our favour. But they forgot that we have no experience of the special tribunal to give us confidence in it, and that we should have no appeal from it ;—that we are disposed, therefore, to run no unlimited risks on the strength of its judicial perfection. They looked at the Treaty with legal eyes ; they knew that the Americans also looked at it with legal eyes ; and in that light they all believed, and knew that they all believed, the Indirect Claims to be pretty well untenable under it. But untenability is one thing, and deliberate bad faith another. And when Sir Stafford Northcote implies that a "promise" was given not to present the "Indirect Claims," we suspect that the fact on which he relies is that the American Commissioners betrayed their belief that the language of the Treaty virtually made the Indirect Claims untenable ; and that being untenable, they probably at that time assumed, without promising, that those Claims would not be presented.
There is one other remarkable inference to be drawn from this correspondence,—the great danger of the systematic dila- toriness of our Foreign Office in these negotiations. Next to the point we have mentioned, Mr. Fish's strongest fact in favour of leaving the Geneva Tribunal to interpret the Treaty for itself, is the presentation by our agent before the Washing- ton Commission of an inadmissible claim for the Confederate Cotton Loan, and its rejection by that Commission, instead of its withdrawal by our Government. In fact, however, it was withdrawn by our Government, but so late that it was not withdrawn till two days after it had been rejected (without our knowledge) at Washington; and of course it can never be positively established (except by relying on the known honour of our Foreign Secretary) that its rejection was not known by telegraph to our Government before Lord Granville finally ordered its withdrawal. "Earl Granville," says Mr. Fish, "has kindly furnished certain dates. From his note we find that it was on the 21st of November that he learned, that the United States remonstrated against the presentation of this class of claims ; that prior to the 6th of December he had ascertained from Sir Edward Thornton (who, it is known, had left England on his return to the United States as early as the 28th of November) that claims of this class were intended to be excluded, and that the Treaty contained words inserted for that object ; that the remonstrance and request of the United States were not considered by Her Majesty's Government until the 11th of December ; that a decision thereon was not made until the 14th (on which day, I may add, the agent and counsel of the British Government brought the case to trial in Washington) ; and that the announcement of the decision of Her Majesty's Government was not made to you until the 16th of December, two days after the case had been adjudged." Near a month lost in dawdling! Is it not plain that in this little matter, as in relation to the more important American demands, the greatest possible advantages have been lost through sheer dilatoriness ? Lord Granville is a shrewd Foreign Minister when once roused. But he carries a great deal too far the cynical maxim that you should never do to-day what you can put off till to-morrow.
Previous page
