TOPICS OF THE DAY.
THE ALABAMA TREATY.
NOTHLNO can be graver than the present situation of this Arbitration question. It would be a calamity of the most fatal kind if either the American people should be persuaded that England shows bad faith in refusing, from
the fear of consequences, to fulfil an obligation she had already deliberately taken, or the English people were con-
vinced that America has intentionally desired to palm off upon us in one sense a treaty which she knew that our diplo- matists and statesmen had accepted in another sense. Nevertheless, there is the greatest possible danger that both these calamities may occur ; that America may be completely persuaded that England, directly she saw the amount of her possible liability, was determined to break the faith she had pledged to abide by arbitration, and that England may be com- pletely persuaded that America used a phraseology in the proto- cols, not only well adapted, but intended to mislead our diploma- tists and statesmen into the belief that the indirect claims had been waived, and were not to be submitted to the Arbi- trators. If we are to avoid international exasperation of the most dangerous kind, which might turn the intended instru- ment of peace and conciliation into a cause of incalculable bitterness, and perhaps even of war, both peoples must do their best to enter into the difficulties of the situation on the other side of the Atlantic, and deal by each other with the most scrupulous candour and fairness.
That England cannot permit the claims commonly called "indirect," and so described by the American Commissioners themselves, to be even submitted to the Board of Arbitrators, we conceive to be beyond question. We say "commonly called indirect," because amongst the claims so described by the American Commissioners is one which which we should have thought it quite fair to treat as "direct," and not "indirect," we mean the increase in cost of insurance, if com- putable at all, due to the escape of any vessel that the Arbitrators regard as owing to the negligence of England. It might fairly have been asserted that if A sends his vessel to sea uninsured and loses it through capture by the Alabama, while B insures against war losses solely because of the alarm which the Alabama has inspired, B's loss in extra insurance is quite as direct as A's. And we suppose the only reason which induced the American Commissioners to describe the enhanced cost of insurance as indirect rather than direct, was the extra- ordinary difficulty of computing how much of it was due to the fear of a single cruiser, and how much may have been due to the fear of cruisers for which Great Britain is not respon- sible. But be this as it may, though we think the United States' Commissioners might fairly have extended somewhat the class of ' direct ' claims, England must clearly abide by the definition given in the protocols, because that determined the sense in which the Treaty was accepted by our Commis- sioners and the Government and acquiesced in by Parliament. On this point there can be no manner of doubt. Lord Granville and Lord de Grey both declared in the House of Lords on the 12th June that the Treaty had this advantage over the two draft treaties of Mr. Reverdy Johnson,—that it did not admit of indefinite claims for indirect losses. We showed a fortnight ago, from the language both of the Protocols and the Treaty itself, that the United States' Com- missioners offered to waive the indirect claims in the case of "an amicable settlement,"--and the Daily News of Thursday rightly calls attention here to the force of the indefinite article as covering any treaty which the United States regarded as amicable,—that the Treaty concluded was in point of fact declared to be an amicable settlement by the United States, and that the wording of the Treaty amply justifies our own Government's view that no indemnity for general indirect losses was contemplated at all, the Assessors being bound to compute the losses due to each cruiser (if any) which should be decided to have escaped from British ports in consequence of our negligence. And that our statesmen under- stood the Treaty at the time in this sense, and publicly declared that they so understood it, before they had the slightest notion that the American Case would demand an indemnity for pro- longation of the war and other asserted indirect consequences of the cruisers' escape, is made abundantly clear by the speeches to which we have referred in the House of Lords. Lord Granville and Lord. de Grey both claimed for the Treaty this great advantage over the Conventions concluded by Mr. Reverdy Johnson, first with Lord Stanley (now Lord Derby) ,
and next with Lord Clarendon,—that under these Conventions we might have been compelled to argue against the admission of these enormous and preposterous indirect claims for the cost of (say) a year of prolonged war, but that under " the- limited reference "of this Treaty, to use Lord Granville's exact words, these large claims "entirely disappear." There was then the best reason, in the language of the American Commis- sioners themselves, for supposing that the large indirect claims were waived ; the Treaty itself was hardly intelligible on any other view ; and that view of it was publicly expounded in the House of Lords as early as the 12th of June last. What can be more clear than that Great Britain honestly intended to admit arbitration solely on "the limited reference," and honestly believed and publicly expressed the belief that America had deli- berately assented to that limitation? No Treaty is binding on any nation except in the same sense in which it can show that its diplomatists and statesmen understood it. You cannot bind anybody, simply by obtaining his signature to a form of words, to accept a meaning for those words which to him they do not convey, and which he can show that he did not understand them to convey. Wherever the fault of the international misunderstanding has been, on which we say nothing, this at least we can make absolutely clear, we hope, even to the Ameri- can people,—that the Treaty signed was understood by our Com- missioners and statesmen in a sense quite different from that, now put upon it by the American diplomatists and statesmen. If additional proof of this were wanted, it would be found. in the British "Case," which is almost amusingly, almost. childishly innocent when read beside the American Case.. While America was showing cause why we should pay some- thing like what France is now paying to Germany, we were placidly arguing that we were not liable for a sum that 2d. on the income-tax would easily cover.
But how are we to explain the American action in this matter,. if our own statesman can, as we have shown, be proved to ba above all suspicion of any double dealing? Why should wa try to explain it at all ? There is no use in recriminations, and it is always probable that the onesided view may be the unjust one. No doubt, as we have said, the American pro- cedure looks like sharp practice. But we must admit that our own statesmen were remiss in not introducing expressly into the Treaty itself the limitation admitted by the protocol, and. we cannot tell how far our own vagueness may have led to an enlargement of demands by the American Government for which those who negotiated the Treaty are not personally responsible. It may very likely have happened that strong opinions were expressed in the Senate (which always exercises great control over foreign politics), that the Treaty must be interpreted by the American representatives at Geneva in the sense most favourable to American claims, and that the Arbi- trators should themselves be left to decide on the extent of their own powers under the Treaty. If such an opinion were prevalent in the Senate, Mr. Fish and his coadjutors may have had to give way without having had the slightest inten- tion beforehand of putting a meaning on the Treaty wbiar was certain to be repudiated by us. In fact, "the American Case" may be supposed to represent a body of inter- preters very different from those who negotiated with us on behalf of America, and who may think themselves entitled to disclaim concessions not clearly imported into the Treaty itself. We may and do feel very strongly that such a course is not fair to England, but it is very difficult, as well as no part of our duty in a grave matter of this kind, to deter- mine the responsibility of the American authorities for the misadventure.
But this seems plain :—We have now learned by a very grave experience how dangerous it is to enter into inde- finite arrangements. We must not go into this arbitra- tion trusting to any preconceived notion of our own as to what the good sense and moderation of the Court of Arbitrators will do for us. We do not doubt at all that the Court of Arbitrators would put aside as simply extrava- gant at least nine-tenths of the American claims, but we have no right whatever to trust to this. Unless we are prepared,— as we certainly are not,—to accept any award, however favour- able to the United ' States, the Geneva Court might give on these unexpected and, as we hold, excluded indirect claims, unless we are prepared to pay, say fifty, or a hundred, or even a hundred and fifty millions sterling, if the Court should award them, it is utterly dishonourable to proceed with the arbitration on the present basis. We must not speculate on English luck. God knows we have had little enough in all this series of wretched negotiations to speculate upon ; but
even if we had, nothing would be more dishonourable than to accept an arbitration which we were not prepared to fulfil to the letter. The duty of Englishmen now is to restrain their irritation, and to strengthen the hands of the Executive in saying firmly to the United States that their interpre-
tation of the Treaty is entirely different from that un- der which we signed it, and the nature of which was frankly communicated nearly eight months ago to the House of Lords and the public. If the American Govern- ment chooses to go on with the arbitration in the limited sense we assigned and still assign to it,—an arbitration on those claims to indemnity for the depredations of the Alabama and her consorts which were defined as "direct " by the American Commissioners themselves in the Protocols to the Treaty,—well and good; we will heartily submit to any award the Arbitrators give. But we will not submit to the Court at all the enormous and preposterous demands which we under- stood, and said before the Treaty was ratified that we under- stood, the Americans to have waived. No neutral Power can properly consent to submit to arbitration demands which would make the burdens of neutrality greater than the burdens of war. At all events, it was not in our reading of the contract that we should submit such claims to arbitration, and our whole experience of these tissues of international mischance forbid our hazarding anything utterly inconsistent with our British sense of justice and oar British self-respect. We must give clear notice at once that whatever interpreta- tion may be put on the too vague language of the Treaty by the Arbitrators, our interpretation of it having been long ago publicly defined and never challenged by the American authorities, by that alone are we prepared to abide. As to the causes of the misunderstanding, we must cast no stones and quietly ignore all imputations. We have a case to justify our good faith such as will bear the utmost scrutiny, and if we have been a little simple, simplicity is no crime. Let us be reticent and firm ; let us bring no charges, but be resolute in defending our own honour and interests. It looks very much as if bad were the best that can come of this Treaty, now,—this Treaty on which we had relied so con- fidently for restoring the best relations between England and the United States. We can no longer hope on any good grounds for renewed cordiality and re-established confidence. If the arbitration goes on on the narrower issue assigned to it by our statesmen, there must be much bitterness and resent- ment in America ; and if it does not go on at all, there will be deep sense of injury on both sides. But even if bad be the best, bad is better than worse, and it is still in our power to decline an engagement which we never made, and which, had we made it, it might be utterly out of any statesman's power to persuade the British people to make good. By promptly declining that engagement, and by that course alone, can we vindicate British good faith in this unhappy misapprehension, even though it be at the cost to some extent of our reputation for diplomatic sagacity and lucid negotiation.
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