PROCEEDINGS BEFORE THE ARBITRATORS. OBSERVATIONS. (Hansard, 27 June 1872)

MR. GLADSTONE
Sir, perhaps the time has arrived when I may venture to say that we have determined to-day that we should be justified, in the existing state of circumstances, in giving a short statement to the House which would place the House in possession, if not fully, yet accurately, as to all the main particulars as to the negotiations at Geneva, with regard to which naturally the greatest interest prevails. Sir, in what I have to say—as I am desirous to be beyond all things accurate, and to avoid everything that could be in the nature of discussion—I shall confine myself, in all material points, to reading extracts from documents. These documents constitute, for the most part, the substance of telegraphic communications that have passed between the parties to the Arbitration at Geneva. They will be laid upon the Table of the House in extenso so soon as the documents themselves will have arrived from Geneva by post—I mean the latest of them. At present we are only in possession of a portion of them. But as it would be wearisome, and serve to distract the attention of the House rather than to concentrate to it, if I were to read the whole of them, I will, with the permission of the House, read what I think are the material parts, and what will be sufficient to convey a clear general outline of the proceedings that have taken place at Geneva. The House will see that, in our making this communication, we give some earnest of our desire to place Parliament in possession, at the earliest possible moment, of the effect of those proceedings, when I mention to it that I have only had placed in my hands within the last few minutes a telegram which gives the account of the meeting at Geneva to-day, and that I have not actually received the conclusion of that telegram, although I believe I have received the conclusion of the material part of it—namely, that which relates to the question of the Indirect Claims. Sir, upon the 15th of June, as the House 294 is aware, the Arbitrators met at Geneva, and the Agent of the United States, in conformity with the Fifth Article of the Treaty, presented an argument, showing the points and referring to the evidence upon which his Government relied. The agent of the British Government, on the other hand, put in a declaration stating that in the view of the British Government, it was desirable that further time should be afforded for the purpose of considering and carrying, as we hoped, to a favourable issue, the communications which had been going on between the two Governments with a view to the conclusion of a Supplemental Article, and time being on that account, in our view, desirable, as the only means at our command which offered for the solution of the still subsisting difficulties, the British Agent used the following language:— Under these circumstances, the course which Her Majesty's Government would respectfully request the Tribunal to take, is to adjourn the present meeting for such a period as may enable a Supplementary Convention to be still concluded and ratified by the High Contracting Parties. The period of that adjournment was indicated, as has been stated before in this House, with reference to the probable period when both the Congress and Parliament would be sitting; but that was not made an essential condition of the request for adjournment. The Agent of the United States stated that he could not say what would be the views of his Government upon this motion until he should know the time for which the adjournment was asked; and upon knowing that period he said his instructions did not enable him to state to the Arbitrators the views of the Government of the United States upon this motion in full, and he asked for an adjournment until Monday, the 17th. On Monday, the 17th, the Agent of the United States was still not in possession of the views of his Government, and he obtained a further adjournment of the Tribunal until Wednesday, June the 19th. On the 19th of June the Arbitrators made a statement, the material parts of which I will read to the House, as, in fact, the statement contains the gist of the whole matter. I will not read the whole of it, but only the material parts— The Arbitrators wish it to be understood that, in the observations they are about to make, they have in view solely the application of the Agent of Her Britannic Majesty's Government, which is 295 now before them, for an adjournment, which might be prolonged until the month of February in next year. They proceed to state subsequently, with reference to this application— The Arbitrators do not propose to express or imply any opinion upon the point thus in difference between the two Governments, as to the interpretation or effect of the Treaty. They then refer to certain considerations of possible inconvenience, or want of effect, that might arise if the Motion for Adjournment were adopted, and they go on to say— This being so, the Arbitrators think it right to state that, after the most careful perusal of all that has been urged on the part of the Government of the United States in respect of these claims, they have arrived, individually and collectively, at the conclusion that these claims do not constitute, upon the principles of international law applicable to such cases, any good foundation for an award of compensation or computation of damages between nations, and should upon such principles be wholly excluded from the consideration of the Tribunal in making its award, if there were no disagreement between the two Governments, as to the competency of the Tribunal to decide thereon. That "if" I understand to mean "even if." I think I have already read the words— The Arbitrators do not propose to express or imply any opinion upon the point thus in difference between the two Governments, as to the interpretation or effect of the Treaty. This declaration having been made by the Arbitrators of their own motion, the President of the Tribunal, having read the declaration, asked the British Agent if he had anything to say, and he replied—"Nothing." He then asked the United States Agent a similar question, and the United States Agent requested an adjournment—this was on Wednesday in last week—in order to enable him to communicate with his Government. The United States Agent received the reply of his Government in time for the Tribunal to be re-assembled on Tuesday, the 25th, instead of Wednesday, the 26th. On the 25th, at the meeting of the Tribunal, the United States Agent made the following statement, which is not very long, and which I had better, perhaps, read in its entirety:— The declaration made by the Tribunal, individually and collectively, respecting the claims presented by the United States for the award of the Tribunal for: 1st, the losses in the transfer of the American commercial marine to the British flag; 2ndly, the enhanced payments of insur- 296 ance; and 3rdly, the prolongation of the war and the addition of a large sum to the cost of the war, and the suppression of the rebellion, is accepted by the President of the United States as determinative of their judgment upon the important question of public law involved. The Agent of the United States is authorized to say that, consequently, the above mentioned claims will not be further insisted upon before the Tribunal by the United States, and may be excluded from all consideration in any award that may be made. Upon the submission of this declaration by the Agent of the United States, the British Agent said that he would inform his Government of the declaration made by the Arbitrators on the 19thinstant, and of the statement now made by the Agent of the United States, and request their instructions. Then, Sir, the Tribunal adjourned, in order to enable the British Agent to make a reference home, and it has met this day, I believe, at 12 o'clock. I am not sure that I can give to the House a perfectly accurate verbal account of what occurred in reference to the meeting of this day, because I have not had time to examine fully the latest portion of the telegraphic despatch which has arrived; but I will state, first of all, the character of the instructions which the British Government sent to their Agent. We stated— We find in the communication on the part of the Arbitrators, recorded in the Protocol of their proceedings of the 19th instant, nothing to which we cannot assent, consistently with the view of the interpretation and effect of the Treaty of Washington hitherto maintained by us; and being informed of the statement made on the 25th instant by the Agent of the United States, that the several claims particularly mentioned in that statement will not be further insisted on, and may be excluded from all consideration in any award that may be made, we then proceeded, not to request, but to assume that this declaration would be constituted a formal portion of the proceedings, and we said that upon this being done our Agent is desired To request leave to withdraw the application made by him to the Tribunal on the 15th instant for such an adjournment as might enable a Supplementary Convention to be concluded, and ratified between the High Contracting Parties; and to request leave to deliver the printed argument, now in the hands of the British Agent, which has been prepared on the part of Her Britannic Majesty's Government, under the Vth Article of the Treaty. He requested leave to do so, because the right of the British Agent to present that document, at least under the title of a summary of argument, could no longer 297 be said to subsist under the Treaty. Without giving the exact words of the telegram received to-day, I am entitled to say that declaration has been submitted to the Tribunal; that a question arose upon some words it contained; that other words were substituted with, I believe, a perfectly satisfactory effect by the British Agent with the advice of counsel, and that the matter of this controversy relating to the Indirect Claims before the Tribunal at Geneva may be considered as concluded. Sir, I have said that I desire to avoid explaining any of these proceedings, and to confine myself to a dry statement of facts; but the House will understand what appears to us to be clearly upon the face of the documents when they are considered. In the first place, they will observe that we, having made the request for adjournment, have in no sense prompted, or expressed any desire for this movement on the part of the Arbitrators; it was their own spontaneous act. The House will also observe that the opinion which the Arbitrators have given with respect to the Indirect Claims is not an opinion involving an assumption of jurisdiction, and has not proceeded upon any hearing of the case, or upon any submission of any argument whatever by us to them in relation to the admissibility of those Claims. The Arbitrators stated that they had considered what had been said by the American Government, and thereupon they founded their declaration. The Arbitrators have also, as the House will observe, not entered into the question of the interpretation of the Treaty, but have rather stated that they perceived in the nature and character of those Claims reasons why, even if the two Governments were agreed as to their jurisdiction, it would be impossible that they should be entertained. Further, Sir, with regard to a distinction that was formerly drawn between the question of making a pecuniary award and the question of their entire extinction, the House will perceive that if at any period that distinction really subsisted, it subsists no longer, because the Claims are not to be taken into consideration for any purpose whatsoever in regard to any award that the Arbitrators may make. Sir, this being so, the House will understand that it was obviously the duty of the British Government to withdraw its request for an adjournment. The question of ad- 298 journment was one which we considered preferable to the lapse of the Treaty; but it was one which we are very glad to find ourselves in a position to drop. The request for the adjournment, in view of further negotiations, having been withdrawn, it only remains to say that I believe some adjournment will probably be necessary for the convenience of the Arbitrators, in order that they may put themselves in full possession of the latest documents in the Case before they hear counsel and Agents; but that will be for a practical purpose alone; and, so far as the two Governments are concerned; there is now no longer any obstacle or impediment whatever to the prosecution by the Arbitrators of that high and important function which they have undertaken—undertaken for the immediate benefit of the two nations concerned—but also, I believe, with the hope—I trust a well-founded hope—that in conducting this controversy to a peaceful and friendly issue, they may likewise be conferring a real service upon the mass of civilized mankind.

§ MR. PERCY WYNDHAM
said, he understood the statement of the right hon. Gentleman to mean that the Arbitrators had decided against the Indirect Claims not because they considered them inapplicable to the present case, but because they had decided against the principle of Indirect Claims altogether. If that were so, he had but one remark to make, and that was, that in order to tide over our present difficulty we had sacrificed what might prove to be the most valuable rights of this country on a future occasion. ["Order!"]

§ MR. SPEAKER
informed the hon. Member that he would be quite in Order in putting to the First Minister of the Crown any question arising out of the statement that he had just made; but that to express an opinion with reference to the matter which had been brought under consideration was not in Order.

§ MR. PERCY WYNDHAM
said, to put himself in Order he would move the Adjournment of the House. His purpose was to ask what would be our position if, in any future war in which the United States were neutral, Fenian raids should take place into Canada. Would not the damage that might result from such raids fall under the head of Indirect Claims? It must be clear to everybody that for 299 weeks past the Government of the United States had been trying to lead up to the position which the controversy had now reached. They knew they were in a difficulty, and their only object had been to secure immunity for the future before foregoing the Claims. This they had now secured. These Indirect Claims were undoubtedly unjust in this instance; but a time might come when claims similar in title, but of a just and reasonable character, would be owing to this country, and we should then find ourselves debarred from asserting our rights.

§ MR. DISRAELI
Did I correctly understand the right hon. Gentleman that the relinquishment of the Indirect Claims by the Government of the United States is limited only to this Arbitration?

MR. GLADSTONE
Sir, the controversy which has prevailed between the two Governments since the month of February has been almost entirely limited to the scope of the Arbitration. The declaration which Her Majesty was advised to make from the Throne related entirely to what was within the power of the Arbitrators. The communications made to the United States Government, in like manner, related to what was within the power of the Arbitrators. On that basis the controversy has been continued, and the request made on the part of the Government of this country—the position taken on the part of the Government of this country—has at all times been that we would not consent to any award or proceeding before the Arbitrators on the subject of these Claims; and that they could not be submitted with our participation to the Arbitrators. The right hon. Gentleman asks, Is the relinquishment of these Claims applicable to the Arbitration alone, or—if I may fill up what I conceive to be the evident meaning of his question—will it be in the power of the Government of the United States to revive these Claims independently of the Arbitration? I must say that that is a matter lying outside the immediate issue which has been in dispute between us and the Government of the United States for the last five months. If the right hon. Gentleman asks me whether it 300 would be competent for the United States Government in our view under the Treaty, to raise the question of Indirect Claims now that a Treaty has been concluded, I answer him, in the most unequivocal terms, that it is not competent for them to do so. Neither has there been at any time hinted to us the possibility that they have the smallest inclination to take such a course. But while that subject is an entirely distinct one, which I think it material to point out, we have ourselves the very strongest opinion that the Treaty as it stands—the Claims not being within the scope of the Arbitration, as now decided—the Treaty is an effectual bar to such Claims; if, indeed, the best bar to such Claims should not be found in the nature and conditions of the Claims themselves. But with regard to the argument of the hon. Gentleman (Mr. Percy Wyndham), I will not reply to it by argument, but, by calling his attention to the exact words of the declaration of the Arbitrators, which appears to us to be drawn with the greatest care and circumspection. I know it is not very easy, hearing such documents read for the first time, to arrive at once at their full effect; but I think the hon. Gentleman will see that his impression is entirely mistaken, and when he has the Papers in his hands, which I hope will be within three or four days from the present time, he will have an opportunity of maturely considering the subject and testing the effect of the words. In the declaration of the 19th, as I have already said, the Arbitrators first of all describe the Claims—not Indirect Claims in general, but the particular Claims put forward as the Indirect Claims in controversy with the United States—under the three heads of Claims. They are so well known that I need not read them. Having thus described the Claims, the Arbitrators use these words—and now, perhaps, I had better read a passage I did not before trouble the House with— But it seems to them obvious that the substantial object of the adjournment must be to give the two Governments an opportunity of determining whether the claims in question shall, or shall not, be submitted to the decision of the Arbitrators, and that any difference between the two Governments on this point may make the adjournment unproductive of any useful effect, and, after a delay of many months, during which both nations may be kept in a state of painful suspense, may end in a result which, it is to be presumed, both Govern- 301 ments would equally deplore, that of making this Arbitration wholly abortive. Then they say—and this passage I formerly read to the House— This being so, the Arbitrators think it right to state that, after the most careful perusal of all that has been urged on the part of the Government of the United States in respect of these claims, they have arrived, individually and collectively, at the conclusion that these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations, and should upon such principles be wholly excluded from the consideration of the Tribunal in making its award, even if there were no disagreement between the two Governments as to the competency of the Tribunal to decide thereon. I think, Sir, that is decisive. Of course, the Government of this country must always act in honourable consistency with the principles involved in conducting any particular controversy; but as to any abstract declaration I think the hon. Member will see that there is no foundation for the remarks he has made.

§ MR. MUNTZ
I wish to ask the right hon. Gentleman this Question—Are we to understand from these documents that we are now in the same position we should have been in if the Indirect Claims had never been made?

MR. GLADSTONE
As regards the prosecution of the Arbitration, I apprehend that we are certainly in the same position, and exactly in the same position. As regards the general considerations applicable to a great controversy of this kind, I will not undertake to say that there may not be divided opinions; but it appears to me that not only we, but likewise America and all countries, will derive considerable advantage from the full and searching discussion which this question has undergone during the negotiations.