§ EARL RUSSELL
My Lords, on rising to move the Address to Her Majesty, which I have felt it my bounden duty to propose, I think the most convenient course, both to your Lordships and to myself, will be to state, in the first place the points in the Alabama Treaty to which I offer no objection, 1824 and, in the next place, to state the points to which I feel it my duty to take the most decided objection, and to which I intend to confine whatever remarks I may make upon this occasion. With regard to the former, I take no objection whatever to the choice of the Commissioners sent out to the United States, or to the appointment of arbiters, with the view of coming to an amicable decision on the important question at issue; on the contrary, I think the choice of the Commissioners sent from this country was a very judicious one, and I have no objection whatever to the Sovereigns and the President of the Swiss Confederation who have been chosen as arbiters; on these points, therefore, I will not trouble your Lordships with any observations. On the other hand, I entertain the strongest objection to the measure proposed in the course of the negotiations, and afterwards confirmed by the Treaty—namely, that certain rules, partly founded on the authority of the Law of Nations, and partly deviating very much from it, should be adopted, and should not only be hereafter recommended as improvements in the Law of Nations—which, of course, it was perfectly competent for the Commissioners to do—but should have a retrospective effect, this country being made liable for any deviations committed in 1861 from rules made in 1871, and which would accordingly render us liable to any claims put forward by the United States on account of the depredations committed by the Alabama or other similar vessels, although no law existing at the time would have enabled us to stop the departure of those vessels from our ports. I must say I conceive this to be a gross departure from all the rules upon which negotiations have hitherto been conducted, and from any rule that you apply to domestic affairs. On the evening when I gave Notice of bringing forward this Motion, a measure was before your Lordships with regard to acts of intimidation against workmen, to creating new offences and penalties. Now what would be said if a Bill of Indictment were sent up to the grand jury at Liverpool, charging a workman with intimidation committed in 1869, under an Act passed in 1871? The grand jury would at once ignore such a bill, and would hold it contrary to every principle of justice, that a man who had committed 1825 some act not at the time penal or criminal should be punished for it under a statute passed some years subsequently. This being one of my main objections to the Treaty, I find the greatest fault with the manner in which this agreement has been stated in it. It is stated in the Treaty that Her Majesty's Government refused to recognize these rules as in uniformity to the Law of Nations: they saw very clearly that they were not part of that law. What a humiliation it is, then, that we should now submit to pay compensation for acts which, by their own showing, were not against the Law of Nations at the time of their commission! A further error, I think, has been committed in stating that this is done with a view of "strengthening the friendly relations between the two countries." I beg your Lordships to consider to what an extent an admission of this kind will carry us in any future negotiations. Some years ago considerable irritation prevailed on the question of these Alabama claims, and nearly a year ago great irritation prevailed in the German Army, because they said that we, contrary to friendship, and, as it was called, to benevolent neutrality, allowed cannon and arms to be exported to the French Army, which arms were used for the purpose of fighting the battles of France against the arms of Germany. With regard to this matter, the noble and learned Lord on the Woolsack was reported to have made a speech, I believe at the Guildhall, in which he said he was ready to defend the conduct of the British Government according to all the rules of International Law. I felt proud at the time that so high an authority should vindicate our conduct; but the whole of that authority is now swept away, for suppose the Prussian Government should now say to us—"Only last year your ports were made the base for strengthening the Army of our enemies; the forces of the French Army, which were nearly exhausted; the French Government, which would have been ready to conclude peace six months sooner than it did, were enabled to prolong the war by means of cannon and rifles furnished to them from British ports." Six months ago the noble and learned Lord would have said in answer to such an argument—"It is according to the Law of Nations that merchants should be permitted to buy arms at 1826 Birmingham, and transport them from Southampton to Dieppe, Cherbourg, or any other French port." He could not now, however, insist on that argument; and, whether or not, it was according to the Law of Nations at the time, the Prussian Government might ask us to act in the same way that we are going to do towards the United States, and to admit our liability for any deviation from the principles now put forward, whether those principles were or were not in force at the time the succours were furnished to France. I conceive it would be difficult for us to rebut that claim, and that we might fairly be asked to admit our liability for the whole value of the damages caused by the arms which were exported. As to admitting these rules for the purpose of strengthening the bonds of alliance and friendship with the United States, have we no bonds of friendship with Prussia? Why, if there is any Power in the world with which I conceive it is the interest of this country to be on terms of friendly alliance, it is Germany. My noble Friend (Earl Granville) would have some difficulty in telling Count Bernstorff—"It is quite true, that in order to strengthen the bonds of our friendship with the United States, we agreed to alter the terms of International Law, and agreed to give retrospective validity to the new terms; but with Germany we have no wish to strengthen the bonds of friendship; your friendship is indifferent to us; and, therefore, that which was applicable to the United States is not applicable to you." It might be absolutely essential to make some such answer to the claim; but it would certainly produce great estrangement between this country and Germany were we to declare that we had a special friendship for the United States; but that with regard to Germany, a Power connected with us by various bonds, we were determined to adhere strictly to the Law of Nations, and to make no sacrifice or concession whatever. Another objection I feel to the reason assigned in the Treaty is, that, with regard to the Alabama and other vessels, it looks like paying a sort of tribute in order to buy peace. Now, there is nothing more objectionable than for a nation to resort to such a policy as that. It was the course taken by the Greek Emperor in order to conciliate the Turkish Sultan, and Gibbon 1827 has pointed out, in a way that cannot be disputed, the error of that policy, and how the hostility of Turkey was only inflamed by that annual tribute. There are other points which are open to objection, and into which I may have to go into detail presently; but it is unnecessary that I should notice them in this summary. I think the Government have been wrong not only in agreeing to set aside the Law of Nations, but in making an erroneous statement of the reasons why they are ready to agree to making the rules retrospective. I also think that it was very unwise to throw aside all our obligations towards Canada and the maritime Provinces of British North America, and to declare that, although citizens of the United States are to be compensated for depredations committed by persons calling themselves citizens of the so-called Confederate States making irruptions from Canadian territory, your own Provinces and subjects of the Canadian Dominion shall in no way be compensated, merely because the United States' Government refuse to pay any compensation. On the Fisheries question, that being a point subject to the ratification of the Canadian Parliament, I need not dwell; but all this shows in what a one-sided spirit this Treaty has been drawn, how everything has been concession on our side, and assertion, I may say without argument, on the part of the United States. Our Commissioners did not trouble the American Commissioners to go into any argument; they merely, as I read the Protocols, accepted their assertion that they could not entertain the question of compensating the Canadians for the Fenian outrages, on which an order was sent from London that that point should not be insisted upon. So, too, with regard to the Fisheries. Many years ago, by the active exertions of a noble Friend of mine (Earl Grey), whom I am sorry not to see present, a Treaty—justly called the Reciprocity Treaty—was concluded, by which the Fisheries of New Brunswick and Nova Scotia were thrown open to the American fishermen, while certain products of Nova Scotia and New Brunswick were admitted at low duties or without duties into the United States. This proved very beneficial to both parties, for the American fishermen enjoyed the benefit of access to the Fisheries, and, although at that time, the 1828 United States gave a bounty to their own fishermen, the fishermen of New Brunswick suffered no injury, but competed with the Americans, while the produce of Nova Scotia was admitted into the American market. My noble Friend (Earl Granville) will find in the Foreign Office many representations by Chambers of Commerce, and other parties interested in the prosperity of the United States, conclusively showing that great benefit was derived by the United States from the introduction of coal and other articles from New Brunswick and Nova Scotia. Now, one would have thought that when the Government were considering the renewal of the Reciprocity Treaty, they would have inserted some clause on the subject in this Treaty; but, because the United States' Commissioners urged the animosity which prevailed during the late war, all those advantages were thrown away, and nothing was done to secure the advantages of the Reciprocity Treaty. More than that, on almost every point there was yielding on the part of Great Britain, while there was no yielding whatever by the United States' with respect to the fair and just claims which might be preferred by England. To go somewhat more into detail with the case, I will first quote the opinion of an American authority, laid down in 1832, and afterwards quoted by Sir Roundell Palmer. The United States' Judge thus defines the power of the collectors, who, I believe, occupy much the same position as the Board of Customs in this country—The collectors are not authorized to detain vessels, although manifestly built for warlike purposes, and about to depart from the United States, unless circumstances shall render it probable that such vessels are intended to be employed by the owners to commit hostilities against some foreign Power at peace with the United States.In quoting this case, Sir Roundell Palmer remarked—The words 'render it probable,' if the principles of the law of this country are to be regarded, must mean capable of reasonable proof.Now, the words "unless circumstances render it probable" are carefully omitted in the Treaty which Her Majesty is called upon to ratify. I will read the first of the rules by which we are to be retrospectively bound. The first is—To use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to 1829 believe is intended to cruise or to carry on war against a Power with which it is at peace.That is very reasonable, but then the rule goes on—And also to use like diligence to prevent the departure, from its jurisdiction, of any vessel intended to cruise or to carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.',I have quoted the American authority of 1832; but Sir Frederick Pollock, Chief Baron of the Court of Exchequer, said substantially the same thing in directing the grand jury in the Alexandra case. He said that if circumstances rendered it probable that the vessel was intended to cruise against any Power with which this country was at peace, they would find the owners guilty. That security, unfortunately, is left out of the Treaty altogether, for the rule laid down in it says nothing of proof of the intention, or of circumstances indicating the intention; but it binds us to prevent the departure of any vessel "intended" to cruise or carry on war. The American Commissioners, having found out there was nothing, according to all International Law, or our own law, to prevent a vessel being sent out armed, to be afterwards used in favour of a belligerent, seem to have been determined to invent some phrase which should make our liability absolute. As an instance of the application of the rule, I may remind your Lordships of the case of the Sea King. The Sea King was a merchant vessel, which, at the beginning of October, having been fitted out without arms, equipment, or fitting as a ship of war, left the Thames. She had a regular clearance, and left without any representation or complaint having been made against her; but, instead of proceeding to Bombay, the port for which she had a clearance, she went either to the Azores or to Madeira, and got there an armament which had been sent in another way, so that she was afterwards employed in cruising against the merchant navy of the United States. Now, although it is certain that she was intended to cruise against the commerce of the United States, not a particle of evidence of that intention was brought either to me or to Mr. Adams before she left the Thames, and it was not till five weeks afterwards that communications were received, both by Mr. Adams and by me, showing that such was the intention. 1830 Yet although the secret was so well kept that no suspicion arose till five weeks after she left the Thames, you conclude a Treaty 10 years afterwards, by which you make the British owners and this country liable, on the ground that there was an intention, which can now be proved, to use the vessel for a warlike purpose. What could this country do? On being informed by Mr. Adams, and by our own Consul, that the vessel was being armed with the view of making war against American commerce, was I to send a man-of-war to make war on Portugal in order to seize this vessel? There is a remarkable passage in a statement made in 1826 by the then Attorney General of Louisiana with regard to an analogous case—Attempts to violate the laws by fitting out and arming, and by augmenting the force of vessels have no doubt been frequent; but certainly in no instance successful, except where conducted under circumstances of concealment that eluded discovery.Now, that is fairness and justice, and, if you mean to be just, adopt either British Rules or American Rules—you will find plenty of international and municipal law sufficient for the purpose; but if 10 years afterwards you accept responsibility for the clandestine departure of a vessel, afterwards armed within the jurisdiction of another Power, there is no saying to what extent your liabilities may go. I do not know exactly what occurred in this particular case; but the British owner might have sold the Sea King to another merchant in entire ignorance of the purpose for which it was intended to be used, yet this Treaty would make us liable for all the damage committed by it. If these cases were to be submitted to arbitration, the arbiters should have considered them by the rules of International Law as generally recognized, or by the Foreign Enlistment Act; and unless they could have been brought within one or the other there should have been no damages allowed. That would have been a fair course, and would not have involved us in dishonourable concessions. I am about to quote some expressions of Mr. Adams's, and I wish to take this opportunity of stating that I believe his reports to his Government, and his conversations with me, although we differed toto cœlo on certain points, showed an honesty and fairness which 1831 materially conduced to the maintenance of good relations between the two countries. Writing on the 4th of October, 1862, he said I had told him—That much as Her Majesty's Government desired to prevent such occurrences, they were unable to go beyond the law, municipal and international.Mr. Adams did not on this draw up a new rule of International Law, and required us to adopt it and abide by it; but he undertook to prove that by our own municipal law and our Foreign Enlistment Act we were bound to make compensation for any depredations committed under such circumstances. These were my words in December, 1862—With regard to the claim for compensation now put forward by the United States' Government, it is, I regret to say, notorious that the Queen's Proclamation of the 13th of May, 1861, enjoining neutrality in the unfortunate civil contest in North America, has in several instances been practically set at naught by parties in this country.That, at all events, was a fair principle on which to proceed, and the cause came to a point which may fairly be considered by the arbiters. Mr. Laird undertook to build a vessel for the Confederate Government. Mr. Adams complained that it was building, and that it was intended to be fitted out and equipped for the Confederates. I replied, as I believe any Secretary of State would have done—"We must refer this to the Board of Customs, and see whether they can obtain evidence by which the owners can be convicted." It was referred to the legal advisers of the Board, and on the 1st of July I was able to inform Mr. Adams that the Board held there was not sufficient evidence that the ship was fitted out with the view of making war upon the commerce of a Power on friendly terms with Her Majesty, and accordingly I deemed myself unable on that statement to direct a prosecution. On the 23rd of July Mr. Adams informed me that additional evidence had been procured that the ship was equipped so as to be fitted for warlike purposes, for he had obtained the evidence of a man named Passmore, who said it had been proposed to him by the captain of this vessel "290," that he should go to sea with him and make war on the commerce of the United States. That evidence was at once submitted to the Law Officers of the Crown, who, on the 29th, informed me that there was a case for 1832 detaining the vessel and instituting a prosecution. On that very morning, however, she escaped, and it remains a question which may fairly be submitted to any arbitrators, whether I was justified in not on the 24th or 25th seizing the ship, afterwards well known as the Alabama. Mr. Adams stated in one of his letters that sufficient promptitude had not been used; but Sir Roundell Palmer, speaking on the 27th of March, 1863, said—The United States' Government have no right to complain if the Act in question (the Foreign Enlistment Act) is enforced in the way in which English laws are usually enforced against English subjects—on evidence, and not on suspicion; on facts, and not on presumption; on satisfactory testimony, and not on the mere accusations of a foreign Minister or his agents."—[3 Hansard, clxx.47.]That remark, moreover, had been quoted by a noble and learned Lord opposite (Lord Cairns) when the Alexandra case was argued, and Sir Roundell Palmer at once adopted it, and said he still held the same opinion. It is, therefore, a very fair question for the arbitrators, whether those five days between, the 24th and the 29th were lost by want of due diligence; whether the Law Officers were entitled to take the time for considering the matter; and whether an order to detain the vessel should have been at once sent down. I felt at the time that it was very difficult to obtain evidence sufficient to satisfy an English Court and jury, and we know that, though in the case of the Alexandra the Law Officers of the Crown contended, rightly, as I believe, that it was sufficient to prove that the vessel was fitted out for a warlike purpose, without any proof of its being armed, there was great doubt whether this argument could be accepted. Lord Chief Baron Pollock, a Judge of great ability, doubted, I believe, whether it was sufficient to prove that the vessel was equipped and not armed, and he doubted whether there was proof of the owner's intention. Somewhere in The Spectator, there is mention of meeting a young lady fully equipped for riding; now that does not mean that she had a sword and pistol, but that she had a riding habit, and the Lord Chief Baron naturally enough said that the word "equipped" was not sufficient. He put it to the jury whether the Alexandra was intended to be used for warlike purposes against the United 1833 States, and they decided that she was not. I cannot wonder, under these circumstances, that the Attorney General (Sir William Atherton) and the Solicitor General (Sir Roundell Palmer) took some days to consider whether there was evidence sufficient to convict, and did not report till the 29th of July. That, however, as I have said, is a very fair point to submit to the arbitrators. On the statement I just quoted being made by Sir Roundell Palmer, Lord Palmerston said—My hon. and learned Friend the Solicitor General, in that admirable speech which we all listened to with the greatest delight, has demonstrated indisputably that the Americans have no cause of complaint against us."—[Ibid, 91.]At that time Mr. Gladstone was Chancellor of the Exchequer, and Sir Charles Wood was Secretary of State for India; Lord Palmerston had, probably, therefore, had the benefit of their opinion, when he declared that the American Government had no cause of complaint against us, and that declaration was, of course, very satisfying to me. I always looked to Lord Palmerston as the greatest authority on foreign affairs, and when I accepted the seals of the Foreign Office I had great comfort in reflecting that I could always refer to him, who for 14 years had maintained the honour of this country, and had never brought us into the least danger of war. According to the uniform practice of the Foreign Office, the despatches which I wrote were submitted to him as Prime Minister; frequently he would write the whole despatch over again, and I was always ready to accept his draft. In the case of Savoy and Nice, and in many of the Polish despatches, the whole despatch was written by Lord Palmerston, and I still consider him as one of the greatest authorities in foreign affairs that ever held the seals of the Foreign Office. Well, what happened with regard to Mr. Adams? He always, as I have said, acted with great fairness, and when about to depart from this country he wrote to me—If it has been my misfortune to observe, in the process of so wonderful a revolution, a degree of coldness and apathy pervading in many quarters, from which my countrymen had every right to expect warm and earnest sympathy; if throughout this great trial, the severity of which few not well versed in the nature of our institutions could fully comprehend, the voice of encouragement from this side of the water has too often emitted a doubtful sound, I yet indulge the hope that 1834 the result arrived at will ultimately correct the hasty and harsh judgments that flowed from lack of faith and of confidence in our fidelity to a righteous cause. Of the friendly disposition in this regard of the Members of Her Majesty's Government I have never permitted myself to doubt.That was an honourable testimony on the part of Mr. Adams to the disposition of Her Majesty's Government. On that Government resigning office, the noble Earl opposite (the Earl of Derby), after a short interval, in which Lord Clarendon was Foreign Secretary, acceded to the office I had held, and in a speech to his constituents in November, 1868, he was reported as saying—There has never been any question upon our side of offering reparation for wilful and intentional wrong, because we do not admit, and we have no right to admit, that any such wrong was committed by us.That also was honourable testimony from a wise statesman and an English gentleman, and I accepted it, as a Member of the former Government, with great pleasure. The real question is, as he stated, whether there was any wilful and intentional wrong, because it was very possible that in difficult matters there might have been unintentional errors; but I deny that we have wilfully inflicted any wrong upon the United States Government. Now, in the autumn of 1869, Mr. Fish, in a despatch to Mr. Motley, which was read to Lord Clarendon with Mr. Fish's permission, said—Then, if the question of negligence be discussed with frankness, it must be treated in this instance as a case of extreme negligence, which Sir William Jones has taught us to regard as equivalent or approximate to evil intentions. The question of negligence, therefore, cannot be presented without danger of thought or language disrespectful towards the Queen's Ministers.Mr. Fish, in the same or another letter, takes care to speak of—The question of negligence—neglect on the part of officers of the British Government, whether superior or subordinate, to detain confederate cruisers, and especially the Alabama."He implies, therefore, or rather actually states, that such men as Sir Thomas Freemantle, the Chairman of the Board of Customs; Sir Roundell Palmer, the Law Officer of the Crown; and I, as Secretary of State, were guilty of negligence which was equivalent or approximated to evil intentions. Baser or more dishonourable conduct on our part could not have been. Yet that was Mr. Fish's charge, which seems to have been 1835 so pleasant to the English Commission, ers that they were delighted to meet him-and to swear eternal friendship. We happen to have in this country a gentleman, who, having a great knowledge of International Law, has written a most elaborate work upon the neutrality of England during the whole of the American Civil War. It is a work marked by great knowledge of law, by great impartiality, and by great absence of anything like imputation upon any person who has taken part in this question, and in it, that gentleman, Mr. Montagu Bernard, who was also one of the Commissioners sent by Her Majesty to America, in reviewing Mr. Fish's statement, says—The point of his argument, however, is that the British Government did nothing, sheltering itself under the uncertainty of the law, an assertion which is so far from being true that it is directly the reverse of the truth.And here I must remark that Mr. Fish not only misrepresented the whole of the conduct of Lord Palmerston's Government, but he goes back to reproach Mr. Canning, and says the Foreign Enlistment Act was enacted solely to serve domestic purposes. The fact is, as everyone knows, that Mr. Canning brought forward the Foreign Enlistment Bill entirely in a spirit of fairness towards friendly nations. Mr. Canning said it was too bad not to prevent privateers going out from our ports to prey upon the commerce of a friendly Power; his action in the matter arose out of the hostilities carried on by the Spanish Colonies in America against Spain. It was found that, although on the part of Spain the fitting out of privateers in this country might be prevented, yet on the part of the Spanish Colonies it could not be prevented; and for the sake of Spain this Act was passed, although it was strongly opposed by the Opposition of the time, of which I had the honour to be one. The five Powers of Europe indicated what they considered as the rule of International Law when, in 1869, they decided that Greece should in future abstain from favouring or tolerating—1, the formation in her territory of any band recruited with a view to an agression against Turkey; 2, the equipment in her ports of armed vessels intended to succour under any form whatever, any attempt at insurrection in the possessions of His Majesty the Sultan. 1836 That I believe to be not only the International Law of that time, but it is and should be so now: we ought not, in my opinion, to go further. A vessel may leave our ports innocently equipped; but in another port she may obtain further equipment, and sail from a foreign jurisdiction an armed vessel of war. We should, in my opinion, confine our obligation to preventing an armed vessel from leaving our ports to make war against a friendly Power. We now come to the Treaty itself, and the effect of it. I have already said that I object altogether to framing rules which are spoken of in this way—Her Majesty's Government cannot assent to the foregoing rules as a statement of principles of International Law which were in force at the time when the claims mentioned in Article 1 arose; but Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agrees that, in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these rules.According to those rules, if a ship had been sent out as a merchantman from Liverpool to Bombay, with the secret intention upon the part of her owner to fit her out as a vessel of war in Madeira, to make war upon a friendly Power, Her Majesty's Government would be liable for any injury she might do. There is no saying to what extent these rules would not make us liable. A merchant in London may send out a merchant vessel to any port of another country, and because he may secretly have the intention of using her for purposes of war against the friends of Her Majesty, this country may be made liable for all the damage she may do. This is so dangerous a provision that I wonder any Government can think of acceding to it. It is matter of certainty that you will not gain friends in this way. I have heard quite lately that the merchants of New York respect this country when it shows any spirit of resistance—any of that old British spirit which used to exist here, and they are far from admiring the concessions which have been made. You will not, therefore, get friends in this way. There is one thing which presses upon my mind very strongly. The late Mr. Henry Drummond, a man of original mind, once said 1837 there was a word that used to govern all the world two centuries ago, and that word was credo, but that there was another word that now governed the whole world, and that word was credit. Two centuries ago we maintained our credo; we maintained our Protestant faith; in the time of Philip the Second of Spain, and James the Second of England, we maintained it triumphantly. The destruction of the Spanish Armada, the Battle of La Hogue, and the Battle of the Boyne confirmed our power, and the country has been triumphant in its credo. But now we come to credit, and we are told—"What does it matter about British honour; what does it matter about national character? The funds are high, the American bonds are high; the Erie railway shares have improved 1½ per cent since the Treaty has been signed, and that will carry all the world before it." The noble Lord on the Woolsack said he had very little opinion of keeping up the prestige of this country, and I once made by anticipation a similar declaration in the House of Commons. I said, provided the honour, the character, and the reputation of this country were maintained, I cared very little what became of the prestige of the country. That is my sentiment still. I have seen a letter to-day of a person learned in International Law, stating that this Treaty has lowered the reputation of England more than anything that has been done for centuries. I am very much of the same opinion. It remains to be seen what course Parliament will take upon the matter. In the reign of Queen Anne a Message was sent to both Houses to declare that Her Majesty would communicate to both Houses of Parliament the Articles of the Treaty of Utrecht, where the Plenipotentiaries were then assembled, before any Treaty was concluded. That Treaty caused the impeachment of three of the Ministers who concluded it. We had many years afterwards, at the conclusion of the American War, an Address to the Crown not to carry on an offensive war with America. I must say that these precedents are not very encouraging; as party moves they have been successful, but they did not obtain for us more effective provisions than the Treaty of Utrecht and the Treaty of 1783 had provided. I have, therefore, to propose that your 1838 Lordships at this time should make an Address to the Crown, with a view to procure such an alteration in the Treaty as will make this country and the United States liable only in cases where violations of International Law, or of the municipal law of the United Kingdom, can be shown to have occurred. I believe that if we do this we shall show that, though we are willing to give compensation for all just claims, we shall at the same time make it evident that we are not contented to sacrifice the honour, character, and reputation of this country. In the beginning of the century there was a Correspondence carried on between Lord Hawkesbury and the French Government in reference to a request made by the latter that certain aliens should be sent out of the country. Lord Hawkesbury, on the part of His Majesty's Government, said that these people must be regarded as our guests, and could not be driven out of the country without violation of the laws of hospitality. The French Minister said—"You have an Alien Act which will enable you to send them away." Upon which Lord Hawkesbury replied, it was true we had an Alien Act, but it was not enacted for that purpose, its object being to secure the peace of England. It was enacted for our own domestic purposes, and we did not make laws merely to oblige a foreign Power. Lord Hawkesbury went on to say that we should be parting with the laws and liberties of England if we were to act at the dictation of a foreign Power in such matters. I really wish that the present Government would rise to the height of Mr. Addington's Ministry on this occasion; it is not too high a point for them to attain. It is because I believe it should be our ambition to retain the honour, character, and reputation of this country, that I beg to propose that this Address should be presented to Her Majesty.
§ Moved, "That an humble Address be presented to Her Majesty, praying that Her Majesty will be pleased not to sanction or to ratify any convention for the settlement of the Alabama Claims by which Her Majesty will approve of any conditions, terms, or rules by which the arbitrator or arbitrators will be bound other than the law of nations and the municipal law of the United Kingdom existing and in force at the period of the late civil war in the United States when the alleged depredations took place."—(The Earl Russell.)1839
§ EARL GRANVILLE
I feel, my Lords, that it is of the utmost importance that this question should be fully discussed in Parliament and in your Lordships' House. I think it would have been unfortunate if so important a transaction as the Treaty of Washington had escaped observation in this House, and had not been made the subject of discussion, of scrutiny, and even of criticism, so that we might fairly arrive at the truth and estimate the advantages or the disadvantages of what has been done. I feel this so strongly that I am glad the noble Earl (Earl Russell) has given your Lordships an opportunity of debating it this night, though he has done so by proposing a Motion which, I think, it is almost out of the question your Lordships will think of adopting. I say I am glad, and I say so with some sacrifice to myself, for, as your Lordships may easily imagine, it is not agreeable to me to have such grave censure passed upon that which belongs to the Office over which I preside by one who has not only been my personal friend, but by one whom I have so long regarded as my political chief and guide. To the greater part of the noble Earl's speech it is quite unnecessary that I should make any reply. At the same time, though I regret much of the tone of the speech which has been made by the noble Earl, I must allude to one point in his criticism—which was that in coming to an arrangement which we believe to be honourable to both the great countries concerned, and which we believe to be absolutely advantageous to ourselves, we should have inserted a declaration in the Treaty, stating that we desire to maintain and strengthen the friendly relations between the two countries. We must all feel that the noble Earl has—most naturally—taken this occasion to vindicate the course he pursued when, like myself, he was a member of Lord Palmerston's Government. It was perfectly unnecessary for the noble Earl to quote the opinions of Lord Palmerston and Sir Roundell Palmer, much as I reverence their opinion, because I perfectly and sincerely believe—not merely because I was bound by official duty to support the course taken by the Government of which I was a member—not because it was convenient to take that course with regard to the future interests of this country—but from my personal and individual 1840 conviction—that my noble Friend in all that he did with regard to these transactions was actuated by the most sincere and earnest desire and intention to use all due diligence to fulfil the duties of a neutral Power, and that, if anything, in some respects he went beyond the power conferred upon him by law. And when the noble Earl says we ought to have held this language to Mr. Fish and the American Government, I must point out that it was maintained by my noble Friend (Earl de Grey and Ripon) and is inserted in this very Treaty, that we refuse to admit any such liabilities. Having said thus much of the course taken by Lord Palmerston and the noble Earl (Earl Russell) as my Colleagues at that time, I come to the point where the noble Earl opposite (the Earl of Derby) in dealing with this question supported the policy of Lord Palmerston and Lord Russell, deviating from it only so far as to consent to what we had previously refused—to refer the questions pending between the United States and ourselves to arbitration. I think now, as I have always thought, that the greatest possible credit was due to the noble Earl for the moral courage and sense of public duty which he displayed on that occasion. The course which he took was one which was not easy for him, recently established as he was in the Office, not having had an opportunity of acquiring a reputation in that position in the country, and following men like Lord Palmerston and my noble Friend, and it was more difficult, because he belonged to a party which, with one or two exceptions, showed a great bias—perhaps not unnatural, in favour of the weaker party contending bravely for its independence. Therefore, I think great credit was due to the noble Earl for not being afraid of appearing to be afraid and for not fearing the sneers of those who would be certain to accuse him of neglecting the character and honour of the country whose interests it was his duty to defend. The noble Earl at the same time, I think, did us the justice to acknowledge that we showed no party spirit on that occasion, and the only real pressure put upon him was to encourage him in the negotiations he had commenced. After that, my noble Friend (Lord Clarendon) came into office and resumed the negotiations, with what result your Lordships are aware. Owing 1841 more to collateral circumstances than to the abstract merits of the Convention itself, the Convention made between this country and America was rejected. By its rejection the Americans no doubt put themselves in the wrong, that any advances must be made by them, and we were entitled in case any demand was made to refuse to re-open the question. That policy was pursued by my hon. Friend to the time of his lamented death, and when I had the honour of unworthily succeeding him I endeavoured, as in all other cases, to follow the course he had pointed out and adopted. I did this notwithstanding the fact that I was on very friendly terms with the distinguished man of letters (Mr. Motley) who then represented the United States in this country. But later in the autumn circumstances occurred which made it desirable to inquire how our relations stood with every country in the world, and when we came to the case of the United States it was impossible to say that our relations were on a perfectly satisfactory footing. There was, first, the San Juan question, which had been slumbering and still slumbered, but which, if not settled, might at no distant date threaten the peace of both countries. There was also the question—in my opinion, the most urgent of all—of the American Fisheries, of which the noble Earl (Earl Russell) has given some description. By putting an end to the Reciprocity Treaty—done, I believe, partly from a strong feeling in favour of Protection, and partly from feelings of irritation—the American fishermen were either excluded from or compelled to take out licences for doing that which they had been accustomed from habit to consider a right. With regard to this subject, there were not only questions between the United States and Canada, but it raised some difficulties between ourselves and Canada as to the amount of police service we were to do for them, in addition to, and perfectly separate and independent from, the obligation to defend the Dominion if it were attacked from without. I endeavoured to obtain, by means of conversations with and letters from great merchants—whom the noble Earl seems to think utterly unfit to pronounce opinions with regard to the interest or the national honour of the country—Members of Parliament, men 1842 of letters, and travellers, all speaking with some authority, either from recent visits to the United States or from their relations with that country, what they believed to be the feeling of the American people with regard to the relations between their country and our own. There was an almost concurrent opinion upon this point. They said there was a great deal of that sort of feeling which the French call chauvinisme, coupled with a feeling of very bitter resentment at the almost total destruction of their mercantile marine during the rebellion, and which they generally attributed to us. There was also a singular degree of feeling because in all the discussions on this question there had not been one word of friendly regret expressed in regard to a calamity, great in itself, which, however it happened, was disastrous to the United States, and was even very disastrous to ourselves in several indirect ways.
§ EARL RUSSELL
was understood to say that such regrets were over and over again expressed to Mr. Adams when he was in this country.
§ EARL GRANVILLE
I regret that fact has not been made known earlier, both in this country and in the United States, because, while I believe it would not in the slightest degree have weakened the force of the arguments advanced by my noble Friend, it would have had a very important effect upon the whole course of the controversy. It was, according to the information afforded me, the opinion not only of the masses of the people in the United States, but also of many among the most enlightened classes in society, that the disadvantageous circumstances to which I have alluded, together with all the questions of irritation which were fomented and pushed on by certain political cliques, should be put an end to, and that really friendly relations should be re-established between the two countries. I did not think it safe to act upon unofficial information of that sort, and I therefore obtained the permission of my Colleagues to avail myself of the services of a gentleman of great knowledge of things and of men, both in the United States and in the Dominion, in order to ascertain in a perfectly confidential manner, for my own information, and without committing Her Majesty's Government to anything, the 1843 truth of the description with regard to the feeling of the people and the chances of succeeding with any new mode of trying to effect a settlement of the question. I had already had experience of the judgment and discretion of the gentleman who was employed on this mission, and who, performing his task with great public spirit and in a perfectly satisfactory manner, entirely confirmed the information and opinions I had previously received. He was not able to give us any assurance as to the results which might be expected to follow upon any course that might be taken, but he expressed his opinion, based upon conversations he had held with politicians belonging to all the different parties in the country, that anything in the shape of a friendly tribute to the national importance of the country, such as an Embassy or a Commission, might be attended with the most favourable results. This opinion being laid before the Cabinet, it was a matter of very grave consideration whether we should take the step we afterwards took or not; and I am grateful to the noble Earl for his complete approbation of that step having been taken, and the perfectly just tribute he has paid both to the composition of the Commission and to their Secretary. Before the Commission was appointed we asked the United States Government whether they would consent to such a Commission for the purpose of settling the Fisheries question, and the other questions in dispute which related more especially to Canada. They agreed to this in the terms proposed by us, and proposed to us that the same Commission should consider the complaints arising out of the Alabama question. I mention this in detail, because I think it was our duty to remain quiescent upon the question of the Alabama until the proposition was made to us by the United States. We readily assented to this proposition, and rejoined by another—which was that the mode of settling all other claims arising out of the rebellion should be referred to the Joint High Commission. This also was assented to; and I may mention, in passing, that the reference was a somewhat one-sided one in our favour, because there are hardly any claims remaining unsettled on the part of the Americans; but there is a very large mass of claims on the part of British subjects, some of a large and 1844 others of a very small and troublesome character. The Commission went out and was received in a very friendly manner. I am not aware that my noble Friend (Earl de Grey and Ripon) and Mr. Fish swore eternal friendship at the very outset of their proceedings, as has been stated historically by my noble Friend; but I know that they met in the way that two gentlemen representing two great States ought to meet, mainly with feelings of a conciliatory character, and an honest and sincere desire to reconcile, if possible, the interests of the two countries. Now comes the question of how far, under the circumstances, the Commissioners have fulfilled our expectations. The first question relates to Canada, and upon that branch of the subject the noble Earl has passed a very strong censure. I feel there can be no doubt that the Dominion has an equal interest with ourselves in the maintenance of friendly relations between England and the United States, and that, therefore, we ought not to continue lightly to excite bad feelings between the two, and so diminish the possibility of good relations being maintained. We endeavoured in the settlement of the question to do everything that was most fair to the people of Canada. There are several courses which might have been taken in the interest of Canada. We might have been satisfied with written memoranda from the Canadian Government; but such instructions being of an inelastic character would have afforded no guide to us. We might have asked for persons to be appointed to advise the Commissioners. But we took a course which we thought would be the best both for ourselves and for Canada, and we invited one of the ablest of the statesmen of the Colony to act as one of the Imperial Commission as the best means of arriving at an arrangement likely to prove permanently satisfactory to both countries. The Canadian mind has been excited for some time past in consequence of a belief being entertained that the Fishery question was an instrument by which they could compel the United States to abandon those protective tariffs which, I believe, are very injurious to both countries. I believe, however, partly from what I have read, partly from information I have received, and partly from communications I have had with my noble Friend and some of 1845 his Colleagues, that it is a great mistake to suppose that that instrument had the power which Canada attributed to it. How, for instance, could the Fisheries question be brought to bear on the Western, the middle, or even the Southern States? Again, the freetraders objected strongly to this sort of arrangement and barter between the two countries, because in their opinion it would strengthen the Protectionist interest. For my part, I cannot conceive anything less conducive to the dignity of this great State, the first of our Colonies, than to go on haggling in regard to this matter. The Canadians have never expressed an opinion, have never manifested a feeling, tending to exclude the Americans, from their Fisheries. What they have said is—"We want an equivalent for what we possess, and that we are entitled to." I believe the wiser course for the Canadians to pursue will be to allow the feeling which has begun to be manifested to increase in the natural course of things, so that in a short time they may obtain what they want without having to give up any equivalent whatever. What, under all the circumstances, could be fairer and more reasonable than to refer to impartial arbitration the question of the real value of the Fisheries in order that a pecuniary compensation might be given for them? I am aware that there are complaints all over Canada of the concessions made by the Treaty; but are there no complaints of a similar character from America? Have no complaints been made by General Butler? One is that the Canadians maintain a protective duty of from 30 to 40 per cent on their Fisheries. Well, I do not say that General Butler is right, but there is a certain appearance of plausibility in the arguments he adduces. It will be the duty of my noble Friend the Secretary of State for the Colonies, after the ratification of this Treaty, to urge on the Canadian Government the propriety of adopting an arrangement which we believe will be honourable and advantageous to their interest. I know my noble Friend will do so in terms of the greatest possible respect for the Government and people of that country, and with the greatest possible regard for the self-government which we have established, and which we wish to leave in their hands to the greatest extent that is compatible with Imperial duties. Indeed, 1846 I have little doubt that my noble Friend will address to them arguments which will have considerable effect in allaying the excitement which at this time does unfortunately exist. There is one question connected with Canada in regard to which I must express my regret. I regret that we were not able to obtain a recognition of the claims of the Canadians on the American Government arising out of the Fenian raid. Her Majesty's Government, however, take upon themselves the whole responsibility of this. We did not press these claims, because, having arrived at a satisfactory arrangement on all the numerous and complicated questions at issue between us and the United States, and knowing that the opinion of the High Commissioners, including that of Sir John Macdonald, was that, in the present state of parties, it would be impossible to obtain from the United States a recognition of these claims, we had to consider whether we ought to destroy all the fruits of the High Commission, and allow a third failure to be the result of the negotiation. No doubt arguments might be brought forward in favour of the absolute repudiation of the claims which it should be remembered have never been presented by any Government to the United States. And now I come to that part of the Treaty which has been so severely handled by my noble Friend (Earl Russell), who stated that the whole course of the Commission was concession after concession, and that everything was given up to the United States, without scarcely an argument having been adduced by my noble Friend (Earl de Grey and Ripon) and his Colleagues. At their very first meeting the American and the British Commissioners came to an agreement that they would keep secret their discussions, and that, though accounts of them would be communicated to their respective Governments, yet they were to be considered as confidential, and not to be published. I may add that I have not the slightest doubt of the wisdom of the course pursued by the British and American Commissioners. They had 37 long sittings, and I will venture to say that if everyone of the 10 Commissioners—not to mention the two able Secretaries—had thought it incumbent upon them to show their patriotism and power of debate for the administration of the two hemispheres, 1847 the 37 sittings would have been multiplied by at least 10 times, while the result of their deliberations would have been absolutely nil. I think the Commissioners on both sides acted advantageously to their respective Governments. The representatives of both displayed great zeal, ability, patience, temper, and an honest desire to come to some compromise, even though the difficulties appeared at first sight to be irreconcilable. The noble Earl (Earl Russell) thinks that whenever the Americans proposed anything it was immediately accepted. This, however, was by no means the case. The fact is, that the Americans, in perfect good faith, laid down a great many conditions which the British Commissioners at once declined to accede to, and even refused to refer for consideration to the Government at home. Many other propositions that were made were referred back to Her Majesty's Government, the Commissioners thinking it their duty to inform Her Majesty's Government that upon their answer in the affirmative or negative the continuance of the negotiations might depend. In considering several of those questions, Her Majesty's Government felt that there would be a great responsiblility in breaking off the negotiations, and that in such an event ridicule, almost, would be brought upon the Commissioners and ourselves. Nevertheless, we at once declined to yield in every case where we deemed it our duty not to yield. With regard, however, to other points, such as those relating to forms of expression, and which did not conflict with the real objects of the Treaty, we willingly either acquiesced in the proposals or else made counter proposals, which were met in the same spirit of fairness by the American Commissioners; whose feelings, I am bound to say, were most admirably described in the brief though eloquent address recently delivered by General Schenck on coming to this country as the representative of the great States beyond the Atlantic in order to cement, under very favourable circumstances, the friendly relations between the two countries. With regard to the so-called Alabama claims, we selected that mode of arbitration which had been sanctioned by the precedent afforded by the noble Earl opposite (the Earl of Derby) and by Lord Clarendon. We gave the widest discretion to the Commissioners, 1848 subject to the approval by Her Majesty's Government, of any alternative scheme which could be devised; and not only that, but we instructed the Commissioners to avail themselves of the opportunity to settle the question for the future as well as for the past—which we believed it of immense importance to do. The noble Earl objects to what has been done. There are cases in which the difficulties themselves offer an opportunity of solution better than that which is originally proposed, and I believe this is one of those cases. I quite agree that in the course which we were ready to take there were disadvantages which do not exist in the arrangement which has been made. The suggestion that we have exposed ourselves to a claim which it would be difficult for us to resist from Prussia with regard to the export of arms would be mischievous if it were not so utterly illogical, and if the circumstances were not so distinct from those of the other. In the one case we propose to settle demands which we admit, and to make arrangements for the future which we think will be advantageous; in the other case we should have to accede to demands which not only do we not admit, but the admission of which the highest authorities think would involve the abandonment of one of the most useful rights this country has. I never said to Count Bernstorff—"I am doing my best to stop this, if only I can get evidence." I never said I would make an attempt, even if it should be futile in the result; but I said—"This thing I will not do; it is not my intention to do;" and I justified what I said by arguments based on the law and the practice of the country. I certainly did not say, as my noble Friend said, wrote, and spoke, that our law on the subject of the export of arms was a scandal. For these reasons the suggestion of the noble Earl that, on account of the declarations we have made, we are about to make a concession to Prussia, is one that has really no validity. We are all aware that there are great objections to retrospective legislation, and it is not the habit of this House or of the English Parliament to resort to it. But there is a difference between applying it to those who approve it and applying it to those who remonstrate against it. There are exceptions to the rule in even its most limited sense. If my memory does not fail me, the noble Earl last year accepted 1849 without remonstrance, a measure the terms of which acted retrospectively as regards the tenure of land in the sister island, but which was not received with willingness by one, at least, of the parties to whom that legislation was applied. In this instance, however, the case is quite different; legislation is one thing, and arbitation under a treaty with a friendly Power is another. The noble Earl likened us to the Greeks and the Turks, and spoke of buying peace; but if he meant to suggest that for any sordid advantage we had sacrificed the honour and independence of this country, I utterly and entirely repudiate the idea. I do, however, assert the fact, that it was right we should, by honourable, just, and fair concession on our part, arrive at a satisfactory solution of serious difficulties. The arguments deduced by the noble Earl from the Alexandra case were not quite applicable; for we appealed against the decision of the Court in that case. The noble Earl and I were equally responsible for the appeal, and in the final result there was a collision of opinion between the four Judges. I was glad to hear the noble Earl's defence of his own conduct in reference to the Alabama, and his references to Sir Roundell Palmer, who was the chief legal adviser of the Government on International Law at the time; and I am almost certain he is aware that Sir Roundell Palmer is of opinion that these articles do not conflict with anything that was done by Lord Palmerston, or by my noble Friend under his advice. Then, as now, the only object of what was done was to carry out the intentions of those who framed the Foreign Enlistment Act; but we were placed in some difficulty by the passing of an Act which my noble Friend seems almost entirely to have ignored—namely, the Amendment Act of last year. There is not one of these rules which is not completely covered by that Act—and it even goes further than they do. The noble Earl himself said that the Act was designed, not merely for domestic purposes, but to enable us to maintain friendly relations with other Powers; the Commissioners were also anxious to show that the Act had this two-fold object; and I believe that, having passed the Act, we were under some obligations to other Powers to give effect to it. During the late war applications were made by certain States to us to take certain 1850 steps. I referred the applications to the Queen's Advocate, who said we were not bound to take them. I had so much doubt that I referred the matter to the Law Officers of the Crown, whose opinion agreed with that of the Queen's Advocate; and, finally, I referred to my noble and learned Friend the Lord Chancellor, who fully agreed with them. We were in this position—that we were bound by the Act; but the American Government were not bound in the least in regard to the future; and I defy anyone to say there is any country which has a greater interest than we have in escaping such depredations as were committed by the Alabama. We have agreed to principles which we think are just and right; we have agreed to arbitration to settle details by arbitration, and we have agreed that our subsequent legislation shall be judged by them. According to the Treaty we are to be liable to the consequences of not using "due diligence." The obligation to use "due diligence" implies that the Government will do all in its power to prevent certain things, and to detain vessels which it has reasonable ground for believing are designed for warlike purposes. The gist of the noble Earl's argument is that from the beginning to the end he exercised "due diligence" in order to effect that object, and used all the powers he had at his command. In the same way we are bound to use like diligence to prevent the departure from our jurisdiction of any vessel intended to take part in warlike operations. There is one proposal which was made by my noble Friend so late as last year. After quoting the opinion of an individual who took a very strong part in the controversy, he said—It appears to me that if the officers of the Customs were misled, or blinded by the general partiality to the cause of the South known to prevail at Liverpool, and that a primâ facie case of negligence could be made out"—[not an ascertained case after due inquiry and investigation]—"Great Britain might fairly grant a sum equivalent to the amount of losses sustained by the captures of the Alabama.That passage occurred in the introduction of the noble Earl to his published speeches. Yet the noble Earl now stands out strenuously against any concessions. There is one alternative which I have already stated met my approbation, and which I should have been prepared to sanction if accepted by the 1851 United States—that was the proposition which was made by the noble Earl (the Earl of Derby) opposite. But there are several advantages which we derive from the course which has been pursued in respect to this matter which will be of great service to this country, to America, and in every point of view—It will be seen, therefore, that in the Treaty the United States have abandoned claims which have been insisted upon up to the very last, the subject matter for arbitration being now confined to 'claims growing out of acts committed' by the several vessels. In this respect the Treaty has an advantage over both the Stanley-Johnson and Clarendon-Johnson Conventions. The former Convention provided (Article 4) that the 'Commissioners shall have power to adjudicate upon the class of claims referred to in the official corresspondence between the two Governments as the Alabama claims.' The latter (Article 1) provided that 'all claims on the part of subjects of Her Britannic Majesty upon the Government of the United States, and all claims on the part of citizens of the United States upon the Government of Her Britannic Majesty, including the so-called Alabama claims,' shall be referred to Commissioners, &c. Both Conventions purposely avoided defining what constituted the Alabama claims, and admitted almost unlimited argument as to what the Alabama claims were. Both Conventions were also open to the objection (at that time unavoidable) that there was no check on the award of the final arbitrator, who might have given damages to any amount.The official Correspondence included every ground the American Government proposed—therefore it was possible that under that reference almost unlimited damages might be inflicted upon this country. The proposition of Lord Clarendon, though differently worded, was exactly liable to the same objection. But then we were met also under the reference to arbitration with this other objection. Suppose the verdict given in our favour—though of course we all wished that—it would have been a very strong point against that security for the future which we most anxiously desired. On the other hand, if the verdict had been given against us his belief was that some of the claimants would have made good their claims, and righteous damages might have been given; but even if unrestricted damages had been given against this country they would have been given in such a way that the decision would have settled nothing as to International Law. The noble Earl said that the United States has made no concessions; but in the very beginning of the Protocols, Mr. Fish, renewing the 1852 proposition he had made before to much larger national claims, said—The history of the Alabama and other cruisers which had been fitted out, or armed, or equipped, or which had received augmentation of force in Great Britain or in her Colonies, and of the operations of those vessels, showed extensive direct losses in the capture and destruction of a large number of vessels with their cargoes, and in the heavy national expenditures in the pursuit of the cruisers; and indirect injury in the transfer of a large part of the American commercial marine to the British flag, in the enhanced payments of insurance, in the prolongation of the war, and in the addition of a large sum to the cost of the war and the suppression of the rebellion; and also showed that Great Britain, by reason of failure in the proper observance of her duties as a neutral, had become justly liable for the acts of those cruisers and of their tenders; that the claims for the loss and destruction of private property which had thus far been presented amounted to about 14,000,000 of dollars, without interest; which amount was liable to be greatly increased by claims which had not been presented."—[Parl, P. No. 3 (1871) p. 8.]These were pretensions which might have been carried, out under the former arbitration; but they entirely disappear under the limited reference—which includes merely complaints arising out of the escape of the Alabama. Not only that, but we have the advantage of obtaining from the American Government their sanction for the future; and this day we have received from them a proposal in answer to an inquiry we made that we should communicate these points in the identical terms expressing the views to which the two Governments have agreed to other foreign nations, in the hope that they may be adopted by them. I believe the advantage of this will be immense; and Her Majesty's Government, neither going on the one hand entirely with those who wished to secure nothing but the past, nor on the other with those who looked only to the future, but taking the middle term, have not made the worst of the past, but have secured immense advantages for the future. My Lords, having said so much I have little more to add. I must, however, say a very few words, and I prefer doing so in the absence of my noble Friend (Earl de Grey and Ripon) at this moment. I do wish to tender very emphatically the thanks of Her Majesty's Government to my noble Friend and to his Colleagues, and to their Secretary, for the part they have taken in this great national occasion. I do not thank them much for the trouble they have had of two trans Atlantic 1853 voyages, for I can conceive nothing more interesting than the opportunity they have had of seeing men and things in the United States; but I do thank them for the ability, the industry, the knowledge they have shown in dealing with this subject; and, above all, I thank them for having exhibited in their demeanour those characteristics which I believe we have some right to claim for our public men of all parties—namely, the desire to be perfectly straightforward, and to be perfectly honest and conciliatory where the honour and dignity of the country are not compromised. My Lords, I believe this demeanour was felt and appreciated by the American Commissioners. I know it was perfectly reciprocated. I consider it as a very great advantage on the conclusion of this Treaty that we have had the assistance of so distinguished a Member of the Conservative party as Sir Stafford Northcote to help us in this national work, and that in the United States that Treaty was ratified—whatever may be said of the convenience or inconvenience of referring treaties to the Senate—by a majority which comprised both parties in the United States. I cannot help thinking that your Lordships will give a really national character to an act which I cannot doubt will be productive of really good feeling between this country and those with whom we are so intimately connected. And if I may add one word in the hearing of one who may possibly be now present within these walls—of one who acted a distinguished part in these negotiations, and who, by his own influence and the influence of his colleagues, contributed largely to the happy conclusion of the labours of the Commission—one who has lately arrived among us eminently on a mission of peace (General Schenck) I should like to be able to say, on the part of Her Majesty's Government, and I may add, of the country at large, that we do feel grateful to him and to the American Government for the spirit, tone, and temper, which they have manifested throughout the whole of these proceedings. I trust, as the debate goes on, and as he hears men of eminence speaking on both sides, he will observe that in this House we can take large, comprehensive, and non-party views of questions where great national and colonial interests are involved, and that it is 1854 not the desire of parties, unless supported by a very general feeling, to interpose embarrassment and difficulty when these can be avoided. I am sure he will see that your Lordships are not behind any class of your countrymen in the honest and sincere desire to have these great questions settled in a fair and proper spirit, and in really genial feeling towards that great nation with whom we have been engaged in these important negotiations.
§ THE EARL OF DERBY
My Lords, the speech and the Motion of the noble Earl at the Table (Earl Russell) have brought under the consideration of this House two separate, though connected questions. We have to consider, first, the narrower and more limited issue of what is the course we are to take with the Resolution of the noble Earl; and we have next the far larger and more important question, what we are to think and say regarding the merits of the Treaty which is the subject of that Resolution. Now, I will begin by saying, as to the Resolution of the noble Earl, that, agreeing, as I do, in many things that fell from him in support of his Resolution, though differing from others, but thinking even where I do differ that his criticism will be useful to correct exaggerated impressions which have prevailed outside, and to create a sound popular opinion, I hope the noble Earl will be satisfied with what he has done in bringing the subject under the notice of the House, without calling on us to divide. I suggest that course for various reasons. No doubt there is a great deal to be said, both on theoretical and on practical grounds, for the principle that the Parliament and the country ought not to be bound by the acts of the Executive, whoever at the time may compose it, in making international treaties without having an opportunity of considering the merits of those treaties. There are many persons who wish—I confess the wish seems one which is not altogether unreasonable—that a Minister acting diplomatically on behalf of the nation could, according to the practice of the Constitution, be controlled on the one hand, and supported on the other, by the necessity of obtaining the formal sanction of the Legislature. That, as we all know, is the practice of the American Constitution; but it has never been the practice of ours. And I cannot 1855 help feeling that it is a very far graver responsibility, and a much more difficult task for either House of Parliament to recommend after its conclusion, and when nothing remains to be done except the formal act of ratification, the breaking off a Treaty which has received the sanction of the Minister of the day, that Minister being backed by a great majority of the other House—it is a much more serious thing to do that than it is to express—as I, for one, am ready to express—the opinion that this Treaty bargain is not what it ought to have been, or that the Treaty itself is not one of a most satisfactory character. We must look at the matter both from an international and a national point of view. As it refers to the United States, whatever I may feel as to the terms of the Treaty, I have not the least hesitation in saying that I would go as far as I could, compatibly with our honour, in respecting their feelings and sensibilities. Whatever may be said about the similarity between the two countries, there are some respects in which we are very unlike them, and in none are we more unlike them than in that which appears the excessive and almost exaggerated sensitiveness to foreign opinion which is so great a characteristic of the American people. Two years ago, when the Senate of the United States rejected the Treaty made with this country by Mr. Johnson, its rejection was received here with some surprise indeed, but with perfect calmness. We may not have thought it a wise act on their part, either for their own interest or for ours; but we felt that we had made a fair offer, that we had put ourselves altogether in the right on those disputed points as to which there might be some doubt whether we had been in the right, so long as an arbitration was entirely refused, and that being so, we cared comparatively little whether our offer was accepted or rejected. But I do not think that if this Treaty were rejected the politicians of Washington, or the people of the United States, would look on that result with the same philosophical composure. There is no doubt that in America the rejection of a Treaty which had gone so far, and only awaits formal ratification, would be regarded as little less than a manifestation of hostility; and I should be very sorry, without the most urgent cause, to break off at this 1856 stage a settlement for the policy of which, according to our own Constitution, the Government and the Government alone are responsible. But, further, I am bound to consider what the effect of this Resolution, if carried, would be at home. I do not suppose that the Government would feel themselves justified—I do not say they ought to feel justified—in consequence of such an expression of opinion on your Lordships' part, in breaking off this Treaty without having taken the opinion of the other branch of the Legislature. Well, I apprehend it is almost certain, in the existing state of political parties, that a question of this kind being vital to the existence of a Ministry, and being treated as this undoubtedly would be as one of confidence in the House of Commons, not only this Treaty but any Treaty would obtain the approval that was asked from that Assembly. The only effect of our Resolution, if carried, would be that it would serve as a protest, but as a protest without result, while the House of Commons would have been compelled to give, at least in appearance, its express approval to an arrangement of which probably the majority of its Members think much as the noble Earl does. I do not think that is a position in which it is desirable that the House should be placed. I now pass to the larger question of the Treaty itself, and I wish to say that I look on it as the Treaty of the Government, and of the Government exclusively. I join in all that has been said in praise of the gentlemen who undertook, at the request of the noble Earl the Foreign Secretary and the Cabinet, that arduous public duty; but under all the circumstances, bound, as they were by their instructions, and receiving daily communications by telegraph, I pass over the parties who were engaged in negotiating the Treaty, and fix the responsibility exclusively on those who instructed them. I put aside the comparatively small question of the San Juan, because I believe that on that it was long understood that both the American Government and our own were willing to submit to a reference, the American Government only hesitating until it could be included in a more general settlement with other questions. Apart from that, the salient parts of the Treaty are these—first, the apology or quasi-apology for the escape of the Alabama; 1857 secondly, the reference of these transactions to arbitration on the terms stated in the Treaty; and, thirdly, the entirely separate question of the Fisheries. Now, in regard to the expression of regret, I am bound to say there is nothing in the words employed to which abstractedly I take objection. Undoubtedly the Government of the day took steps to prevent the escape of the Confederate cruiser; and, having taken them, we cannot doubt that they were taken sincerely and bonâ fide. They failed to prevent the escape, and it is quite natural that they should feel and express regret at having failed to do what they confessedly tried to do. But I do not think it can be said with truth that there was a necessity for inserting those regrets in the Treaty, because no expression of that kind had proceeded from the British Government before. The matter is one on which I hardly like to trust to the recollection of the moment, but I do not think that anyone who has been concerned in these negotiations, however much he may have justified the conduct of the Government of the day, denied that the escape of the Alabama was a regretable proceeding. I think, however, it may be questioned whether the insertion of an expression of regret in the very Treaty by which you are referring the matter to arbitration, was wise; it tends in some degree to prejudice our case before the arbitrator, and looks as if there were something in it about which we feel uncomfortable. And though I do not lay any great stress on this point, still I think we did enough to show our willingness to repair any wrong we might have done, or been supposed to have done, when we agreed to refer the whole question to the judgment of a third party. Lord Clarendon on behalf of the present Ministry, and I myself on behalf of the Conservative Ministry, most willingly conceded the principle of an arbitration, and I have never doubted that in so doing we were right. And why? Arbitration means simply this—that no individual or nation is a judge in its own cause; and if you want a fair and impartial judgment you must go to somebody who is wholly unconnected with the transaction. But it is one thing to propose a reference and another to propose a reference in the terms contained in this Treaty. If the Treaty previously negotiated 1858 had come to a reference, what would have been our defence? I believe it would have been of a double nature. We should have contended, in the first instance, that we had taken all proper and reasonable care to fulfil our international obligations, and that if there had been any apparent deviation from duty on our part, it had arisen from an accident, and not from any cause within our power. Next, and in supplement to that defence, it would be quite possible to argue—and we should have argued—that our difficulties were greatly increased by the ambiguity of the existing International Law. It is said we have admitted we were wrong because since then we have altered our own municipal law, and have thereby acknowledged that the provisions existing in 1861 were not sufficient to enable us to fulfil our international duties. Yes; but there is such a thing as wishing to be on the safe side, and as pledging yourselves by municipal law to do that which it would be better and more politic to do, even although you may not be bound to do it by any International Law. No one who remembers what were the controversies at the beginning of the American Civil War can doubt that that ambiguity was really a very important element in the question we are discussing. No one can doubt that if the precise limit of our international obligations and the duties which were imposed upon us had been clearly mapped out our difficulties in this matter would have been infinitely less than they were. I look through the Treaty, and what do I find is the basis of the arbitration? We say we do not admit certain rules of International Law to have existed at the time when the Alabama sailed; but although they did not then exist, yet 10 years later we have agreed for the purposes of this arbitration to be judged as if those principles had then been in force—that is to say, we are putting ourselves on our trial for acts committed in 1861 or 1862 under a statute which had no existence until 10 years after these acts were committed. That is, I think, very much as if when the slave trade was declared illegal, and that all persons who should in future carry it on became liable to penalties, it had been at the same time enacted that those penalties should apply retrospectively to all persons who had carried on that trade within 10 years before that Act was 1859 passed. The noble Earl (Earl Granville) cited what he considered was a parallel case, and said we ought not to object to ex post facto legislation, because we had retrospective legislation in the case of the Irish Land Bill last year. I advise the noble Earl not to lay too much stress on that argument. I remember that in the debates which were held last year we frequently heard the words "exceptional legislation," or something analogous to them, on the part of those who brought that legislation forward. But exceptional legislation is a dangerous thing, for this reason—that when you make an exception in one case you are very likely to be asked to do it in another. But, in truth, the cases are not parallel. Our case is much stronger, because although you had some extreme propositions put forward when the Irish Land Bill was discussed, I do not recollect that anybody ever ventured to say that retrospective compensation ought to be granted to all those tenants who had been evicted during the previous 10 years. That would have been really a parallel to the condition by which you have laid yourself in this arbitration. I object on principle to a proceeding of this kind, whether the practical results in this case be important or not. I believe that all ex post facto laws are opposed to all just and sound principles, and that when you give way in a case of this kind it is not very easy to resist in another. I have looked for some explanation why such a mode of proceeding was adopted, and I can find only one. All will recollect that two years ago the American Senate refused the free and unfettered arbitration which was then proposed—and I do not know that from their point of view they were altogether wrong in doing so, because, undoubtedly, leaving the whole matter, as was proposed, in the hands of competent arbitrators, who were to judge alike of the facts and the law, the result of those claims as regards the Americans would have been very uncertain. And one can hardly conceive anything more ludicrous than the position in which not only those claimants, but also all the American politicians who had backed their claims, would have found themselves placed if, after all the outcry that had been made, and when their efforts seemed to have had a successful ending, it turned out that their 1860 own arbitrators gave the case against them, and they got nothing by the move. They saw this clearly, and they declined to play the game unless they were made tolerably sure beforehand that they would win. The Government appear to have considered that that was not an unreasonable demand, and, if I may use the expression, to have loaded the dice so that by no possibility could the result have been in our favour. It is an easy solution, no doubt. I can quite understand that it might be convenient for the negotiators, or for those who authorized them, to be able to say to the English people on the one hand—"This is only what was proposed before by a Conservative Government; it is nothing but a reference to arbitration, which is fair, and just, and equal to both sides;" while to the Americans, who had refused arbitration of the kind proposed in 1868, the language used would have been—"The English have prejudices which require to be humoured; you must give them something; they will not allow us to give way unless there is some appearance of a third party coming in to decide; do not be afraid; you are quite safe; we have taken effectual precautions so that the gain may be on the American side, and it is only an indirect way of giving you the compensation which you claim." I do not propose to enter into what will be the prospective effect of the three rules; but in the first of them there seems to be an omission of words. As to the fitting out of vessels, it is said that the Government is to use due diligence, prevent the fitting out, arming, or equipping, within its jurisdiction of any vessel "which it has reasonable ground to believe" is intended to cruise or to carry on war against a Power with which we are at peace. But the question at issue is, not whether when a vessel went out there was reasonable ground to suppose she was being fitted out for a warlike purpose, but whether she was intended to carry on war, which is a question that the Government cannot possibly know anything about, because the intention may be confined to the mind of the owner of the ship. Passing on to the third point to which I have adverted—namely, the settlement of the Fisheries question—I confess I am very unwilling to enter upon that discussion. It would not be fair or right 1861 to prejudge—even if I could suppose any words of mine could do so—the decision that must be come to by the Canadian Legislature. I fully and readily admit the difficulties that attach to this question; I admit that the burden of maintaining colonial rights is mainly thrown upon England without any directly corresponding benefit being derived by England. I acknowledge that the Government have acted fairly in giving to the Canadian Legislature what is practically a veto on the decision to which it has come; but I sincerely trust that that veto may be freely considered—that no pressure will be put upon the Canadians, but that they will be allowed to exercise a free and an unfettered judgment; and I shall not call it "free and unfettered" if their decision is given under the influence of any warning that if they are not satisfied, with the agreement that has been made for them they must not look for a continuance of the protection they now receive. It was inevitable that this question should be decided sooner or later; but to raise it at the present moment seems to me to be singularly unfortunate, because it involves great danger to the North American Confederation. That Confederation was the result of much labour, and though it was the work of both political parties, and it was intended to prove, as I hope it will prove, of great advantage to the people included in it. But the weak point of that Confederation is, and always has been, that it is composed of separate Provinces, having various and sometimes divergent interests, and as it happens that the maritime Provinces are, as far as voting power goes, only a minority of the whole, it inevitably follows that whenever the interests of the various sections differ the maritime portions are entirely at the mercy of the inland. That objection was taken, and constantly dwelt upon when the federation was before us; and now the precise thing which its opponents foresaw has come to pass—a diversity of opinion between the Provinces. Whether the Convention will be ratified by the Canadian Government it is impossible to predict; if it should not, I am afraid that all the trouble that has been taken in the matter will go for nothing, because it cannot be expected that the Government of the United States will accept a Treaty of which one half cannot 1862 be executed. If the ratification shall take place, Upper and Lower Canada will have made what is probably not a bad bargain; but I am afraid, whatever advantage may arise out of it, there will be a good deal of soreness and bitter feeling left in the minds of the people of the maritime Provinces, who, there is no denying, have been, to some extent, thrown over. Their rights amount virtually to nothing; for what are the rights of a minority? Briefly defined they are the right to do what you are told, the right to keep what is left to you, and the right to hold your tongue under penalty of being considered factious. It will not make matters much better if, when the Canadians of the inland Provinces are reproached, as they probably will be, for overlooking the interests of their neighbours, they endeavour to throw the blame from themselves upon others. They will say, I think—"If we could rely upon the continued support of England we should probably have been able to make a better bargain; but we know what is the doctrine of the dominant party in England upon the subject of Colonies; we know that in England there is a powerful party which is only anxious to get rid of all liabilities for our defence; and this being known we have negotiated not exactly on the basis we should have preferred, but for the best terms we could obtain under the circumstances." That will be the justification the inland Provinces will put forward in answer to the complaints of their neighbours; and I must say, although I do not want to aggravate that feeling, yet I do not think the way in which the Colonial claim on account of Fenian raids has been treated will diminish it—and I may remark that the noble Earl himself does not appear to be altogether satisfied with this part of the transaction. I have now pretty well gone through all I have to say upon the subject. In doing so, I have carefully avoided using any language that can give offence to the people of the United States; but they are very unlike what I have always thought them and what they are generally taken for if they feel themselves particularly aggrieved at being told they have the best of a bargain. They have acted in all these matters as shrewd men of business, perfectly willing to be conciliating whenever conciliation did not stand in their way, 1863 and at the same time perfectly aware of what they wanted, and fully determined to get it. I am not finding any fault with them for that; but I confess I cannot congratulate our Commissioners on that display of lamblike meekness which has led them to make concessions such as have never been made in former years, and think it would have been better if they had shown some admixture of the same temper. Neither can I compliment the noble Earl on the reasons he gave us for adopting the course he has thought fit to pursue. The noble Earl (Earl Granville) said he had heard in England from persons to whose authority he attached great weight, and who had been in the United States, that there existed in America a general feeling of irritation against this country. I am rather sceptical of the existence of that general feeling of irritation, because the Americans are a reasonable people, and, since arbitration was offered and refused, there was not much ground for resentment or irritation left. But, no doubt, there has always been in the United States an anti-English party, and if the policy adopted of considering it necessary to conciliate American feeling by granting anything and everything they ask is to be the rule of the future, I do not think we are very likely to see the end of that party—because when any party in any country find a policy eminently successful, they are very foolish if they give it up. The other reason given by the noble Earl was that the state of our foreign relations last year made it eminently desirable to keep ourselves on good terms with the United States. If that means that it is eminently necessary to be at peace with America because we may have to fight some one else, I do not think that a very satisfactory statement, nor one which is creditable to the state of our foreign relations. But as for this Treaty, the thing has been done, and for my own part I accept the accomplished fact. We have often heard that saying about a peace of which no one can be proud and of which everybody is glad. I do not think that is exactly the present case, because the American negotiators have certainly reason to be proud of their diplomatic victory. The noble Earl says—"You don't know what they have given up." Of course I do not know what may have passed in those diplomatic 1864 conferences, which are very properly not to be made public; but the only concession of which I can see any trace upon the American side is the withdrawal of that utterly preposterous demand that we should be held responsible for the premature recognition of the South as a belligerent Power in company with that equally wild imagination, which I believe never extended beyond the minds of two or three speakers in Congress, of making us liable for all the constructive damage to trade and navigation which may be proved or supposed to have arisen from our attitude during the War. It is not conceivable that pretensions of that nature would have been maintained for a moment, and I must be excused if I decline to treat the abandonment of them as a serious concession. I am glad, however, that at last after a good many years this contest is at an end, and if I had not been connected with the matter before, I should have allowed it to pass by in silence. But I cannot honestly say I think the terms of the settlement are particularly creditable to those who arranged them, or that they will conduce to the diplomatic reputation of this country.
EARL DE GREY AND RIPON
My Lords, I am sure no apology was needed from the noble Earl who has just sat down (the Earl of Derby) for exercising his undoubted right to criticize the Treaty of Washington, and I am equally certain no one could complain of the tone and temper in which his strictures have been made. But I do not think the case he has endeavoured to make out will be endorsed by the country. I think my noble Friend the Secretary of State for Foreign Affairs has been misrepresented by the noble Earl. The noble Earl has told us that my noble Friend gave as his principal reason for having recommended Her Majesty to send out the Commission that he had learnt from many persons that there existed at the time a very widespread feeling of irritation in the United States with respect to the question of the escape of the Alabama. My noble Friend, however, gave a very different reason; for he said that he had learnt from very good authority—and I can confirm from personal observation and knowledge the accuracy of the statements made to him—that there are at 1865 the present time many men in the United States who desire to see this question settled; that although much irritation had prevailed upon the subject, and still existed among certain classes, yet that information in his possession showed that a different feeling was springing up among influential merchants and politicians; and that, therefore, the time had arrived, now that irritation was dying out, for making an effort to settle the various questions in dispute between the two countries. My Lords, I cannot doubt for one moment that at the time we were sent to the United States as the Commissioners for this country there did exist in that country among men of all parties, and of all classes, an earnest desire to see these differences brought to a conclusion, and the relations between the two countries placed upon the most friendly and durable footing I must also take exception to the assertion made by the noble Earl that those who represented this country upon the High Joint Commission at Washington displayed what he called a lamblike meekness throughout these negotiations in consenting to what he styled a series of concessions demanded from us by the representatives of the United States. I must also express my regret that the noble Earl who has made this attack upon Her Majesty's Commissioners should have left the House before one of the Commissioners has had the opportunity of making his defence. Now, so far from our conduct being a constant course of concession, there were, as my noble Friend behind me (Earl Granville) has said, numerous occasions on which it was our duty to say that the proposals made to us were such as it was impossible for us to think of entertaining. Nothing can be more easy than to take the course adopted by my noble Friend opposite (the Earl of Derby), and to say that all the demands we resisted were so preposterous that it would have been absurd to entertain them, while those upon which concession was made were the only ones really in dispute. My noble Friend says that no arbitrator would have entertained a claim for what the Americans term our premature recognition of belligerent rights and the consequent prolongation of the war. That may be true; but in the Convention to 1866 which my noble Friend appended his name, it would have been open to the Americans to adduce arguments on that point. My noble Friend has adopted a very easy method of dealing with questions connected with the Treaty upon which he does not desire to make any observations. He says they are of no importance, or that they were matters which could be settled with the utmost facility. My noble Friend took as an instance the case of the Island of San Juan; but so far from that question being settled with the utmost facility, it was one of those which caused us the greatest trouble. The United States Commissioners raised great difficulties on the subject, and we were obliged to insist strongly upon the views of Her Majesty's Government with respect to it. Then the noble Earl turned to the consideration of that which is undoubtedly the most important part of this Treaty, and that which forms the staple part of the Motion of the noble Earl who has left the House (Earl Russell). I was not surprised to find that, with his usual caution and his usual logic, it was not the intention of my noble Friend to support the Motion of the noble Earl, and I also observed that in the course of the arguments which my noble Friend addressed to the House upon this subject, he very carefully separated himself from the line of argument sketched out in the Motion before your Lordships' House. My noble Friend, before he came to speak of the three rules in the 6th Article of this Treaty, said a few words about the expression of regret, and I was glad to find that my noble Friend did not make any serious criticism on the course pursued by the Commissioners in respect to that matter. But my noble Friend repeated that which was previously asserted by the noble Earl (Earl Russell), and seemed to imply that regret had already been expressed in the Correspondence that has taken place on this subject. That Correspondence, as your Lordships are aware, is very voluminous, and not having looked at it recently I am not prepared absolutely to contradict the statement of my noble Friend; but I should be glad if my noble Friend, or the noble Earl who brought this Motion forward, had been good enough to point in that Correspondence to any distinct expression of regret for the escape of 1867 the vessels and the depredations committed by them. I do not think my noble Friend will find it easy to discover any such passage; at all events, I know that the universal impression in America that it does not exist was one of the most fruitful causes of the irritation with which we had to contend. My noble Friend finds fault, too, with the manner in which our regret is expressed. But I submit, my Lords, that when you are about to do an act which is intended to be a graceful act towards those with whom you are dealing, it is surely right that the act should, be done in the most graceful manner. I believe that by treating the matter in that way we may go further to remove any angry feeling or soreness from the minds of those who have hitherto regarded us in no very friendly light than by any other course or demeanour. In this spirit we proceeded to consider the question at issue between the two countries, and I believe that it had a great effect in leading to the establishment of good and friendly relations between the two Governments. My noble Friend then turned to the question of reference to arbitration and the mode in which arbitration is provided for under this treaty. Of course, my noble Friend had no objections to urge in the abstract to a reference to arbitration. It is greatly to my noble Friend's honour that he was the first person who endeavoured to settle this question by arbitration. But my noble Friend says we ought to have left the arbitrators to deal with this question simply upon the grounds of International Law as it was when these occurrences took place, and that our municipal law ought not to have been imported into the subject. Upon that point my noble Friend separates himself from the noble Earl (Earl Russell), and the Motion of which he has given notice. The noble Earl (Earl Russell) never denied that he was bound to carry the municipal law of this country into execution. He had always told. Mr. Adams he was prepared to do that which the municipal law enabled him to do, and that he considered himself bound to act upon that law. And I do not think it can be maintained that these rules go beyond that which was held by the Government of Lord Palmerston at the time to be the principle of International Law, and the principles laid down by 1868 the municipal law of this country, as they were believed to exist. The noble Earl was then pleased to take exception to the rules embodied in the Treaty. A great deal has been said about the first of these rules, and about the difference which exists between the first and the second portion of that rule. The Secretary of State for Foreign Affairs has so fully dealt with that portion of the argument that I will not go over it again. There is one point, however, to which I wish to draw your Lordships' attention. It has been said that under this rule the mere fact of a vessel specially adapted and intended to cruise against the vessels of another Power having departed from the jurisdiction of a neutral Power, under circumstances which rendered it impossible for such neutral to be aware of the vessel's movements, would render the neutral liable to pay for the damage done by such cruiser. Now, I submit this is simply impossible. How is it possible that a neutral Power can have failed in "due diligence" in respect of a matter of which it knows nothing? Such a notion is simply impossible according to the language of the rule itself. The noble Earl himself put forward one of the strongest arguments in favour of the insertion of these rules in the Treaty when he said that the duties of Her Majesty's Government during the American War would have been easier if matters of this kind had been more strictly defined. I will now, without the slightest hesitation, answer the question of the noble Earl as to the reasons for inserting the rules in the Treaty. We believe we have not gone in any way beyond that which was admitted to be the guiding principle of the Government, looking at the question from the point of view of municipal as well as of international law. We consider that we have acccomplished a signal benefit in binding the American Government by rules which are just and reasonable in themselves, and from which, in case of future wars, I am perfectly confident no country on the face of the earth is likely to derive so much benefit as England herself. I hope it may be in our power to induce other Governments to agree to bind themselves by similar rules. In our past history we have been belligerents as a general rule, and not neutrals, and the case of the 1869 American Civil War was almost the first in which we had to occupy the position of a neutral. If that is to be the course of our history in the future, I feel confident that in the course we have taken will be found the greatest security for the protection of the commerce and the promotion of the best interests of this country. These rules will be a great improvement in International Law—they are less stringent than the rules of the Foreign Enlistment Act at the present time, and, looking to the future, they are less stringent than I should like to have seen them made if it had not been for considerations of the past. My noble Friend seems to think that we English members of the Commission did very wrong in not insisting upon obtaining for Canada the re-enactment of the Reciprocity Treaty. Now, I confess I am not a great believer in reciprocity treaties; nevertheless, on this point the members of the Commission were most anxious to conform to what they believed to be the wishes of the people of Canada, and we put this question of reciprocity in the fore front of our arguments, fighting it day by day, and point by point, until it was clear that an arrangement of a different description must be made. I believe it to be a great mistake to suppose that the mode by which free trade between Canada and the United States can be secured is by using undue pressure for the purpose of enforcing a reciprocity treaty—on the contrary, I entertain no doubt that the surest mode of retarding the progress of free trade in America is to persuade the people of that country that to enact free trade would be to give an advantage to England or to the British Colonies, instead of its being, as it would be, a benefit and an advantage to the United States themselves. Free trade principles are making considerable progress in America, and there can be no doubt that in the course of a few years you will have free trade measures passed first as to coal and salt, and then as to lumber, probably, if you do not arm the protectionist party in the country by enabling them to say to the people—"This is British free trade." The arrangements we have made and which are dependent upon the will of the Canadian Legislature, are I think perfectly fair as far as the interests of the Canadian people are concerned, and I 1870 think it would be a very serious matter for their Legislature to reject those arrangements, and throw open again the difficult and, as I believe, dangerous questions connected with the Fisheries. We have made the best arrangement we could for Canada—an arrangement which I believe will be reciprocally advantageous to both Canada and the United States—we have made an arrangement whereby, in return for the free admission of American fishermen to Canadian waters, Canadian fish are to be admitted free to the United States and reciprocal rights of free fishing in American waters are to be enjoyed by Canadians. I should deeply regret to find the Canadian Government taking such a step as refusing to adopt that arrangement. It would almost seem as though those noble Lords who have spoken on this portion of the question have forgotten that Canada has the most direct interest in every provision of the Treaty. Of course, the parts relating to the Fisheries and Navigation are in one sense those more immediately affecting the Canadian people; but as Canada is a part of the British Empire and the part most immediately threatened by any differences between this country and the United States, it has the clearest interest in the settlement of all differences with the great Republic across the Atlantic. I have not touched on all the provisions of this Treaty which relate to the Canadian question, because they have not been challenged in the course of the present debate; but those of your Lordships who look at the Articles will find that there are important advantages secured to Canada which are not dependent on those portions of the Treaty that relate to the Fisheries. The noble Earl who opened this debate (Earl Russell) brought against me one of the most singular charges ever brought against an unfortunate person who was intrusted, however unworthily, with a difficult political negotiation. He took me to task because, in his opinion, I had been too civil and too friendly with Mr. Fish. The noble Earl seemed to think, indeed, that I ought to have commenced operations by quarrelling with the American Secretary of State. I plead guilty to the charge brought against me by the noble Earl; and with regard to Mr. Fish, I am bound to say that as far as our experience goes of that distinguished gentleman I found 1871 him fair in negotiation, and animated by an earnest desire to promote the establishment of friendly relations between the two countries. It is, of course, a source of deep regret to me that the conduct of the negotiators of whom I was one should have been spoken of by the noble Earl in such language as he has employed to-night. Ever since I have taken part in public life I have looked to the noble Earl with that respect with which he has always been regarded by every member of the Liberal party, and therefore to incur his censure is to me no light matter. But this at least I must say—that I feel content to sit under the censure even of the noble Earl, because I believe I have been able to take a humble share in a great work which, if I be not much mistaken, will not merely tend to bind in relations of friendship two great and noble nations of the same race, but which has also laid down principles that will, if acted upon in the future, promote peace in the world and tend to prevent the greatest of all human miseries—war.
THE EARL OF CARNARVON
My Lords, this is a question which, as has already been pointed out, bears both an Imperial and a Colonial aspect. With respect to the former, I, for one, am prepared to endorse the opinion generally expressed on this side of the House, and to say that the terms of the Treaty represent a poor bargain for this country. Indeed, the only justification of it, that I can conceive, is that it is to be looked upon as an exceptional transaction, and not in the light of a bargain, by which we have conceded so much to the United States on the score of friendship, and it may be from a desire to maintain a good understanding with them—and by virtue of which we are doing for them what we should not do for any other country in the world. After the remarks which fell from my noble Friend, it is right that I should say a few words on the second or Colonial aspect of this question, and I wish I could say that, viewed in that light, I have a much better opinion of the Treaty. If I put the gains and losses against each other, I doubt whether the result is altogether satisfactory. On the one hand, Canada surrenders the free navigation of the St. Lawrence and of the Canadian canals. On the other hand, the United States give up the navigation 1872 of Lake Michigan and certain canals. Well, as far as that exchange goes I see no great objection. I am not prepared to say that those canals are of any great value, but I do not say that it is an unreasonable exchange. But the second and more serious point is that which has formed the subject of this evening's discussion—namely, the surrender or exchange of the Fisheries. It would be wrong for us to say anything to prejudge the decision of the Canadian Parliament; but, at the same time, we ought not to flinch from the expression of any opinion which may be justly called for. Canada gives up her rights in respect of the inshore fishery, and nobody can doubt the value of that concession. The right to these Fisheries has been exercised by Canada for generations—has been secured by treaty—and has been guaranteed by our whole naval and diplomatic power. The Fisheries possess moreover a very great commercial value, to which my noble Friend who last spoke failed altogether to do justice; and, lastly, they constitute one of the most important political questions which agitate at this moment large portions of the Dominion of Canada. They form, therefore, as grave and serious a matter of controversy as any subjects we have lately discussed in this House. But, on the other hand, what does Canada receive? The United States surrender the right of fishing down to the 39th degree of North latitude. But this concession is almost worthless. My noble Friend spoke of it as if it were a matter of exchange; but there is no exchange; and to argue on it as a matter of exchange is a transparent fallacy. There is no fish worth mentioning on the American coast except oysters and other shell fish; the Americans have taken good care to reserve these; and I am glad to say that we, in decency, have reserved ours. True, there is a money compensation to be made; but I should have preferred if there had been a commercial or a political rather than a pecuniary equivalent in its place. Formerly I have regretted the loss of the Reciprocity Treaty—it was undoubtedly a loss; but I am not sure that the absence of the United States market has not made Canada more self-reliant than she was before, and that her exclusion from that market has not, in fact, opened up others, and 1873 shown that in that respect, as in many others, it is out of the power of any one country to regulate and determine the commerce of the world. But I own that I wish to ask for some explanation of a most singular part of these Protocols. I have read with astonishment that at one stage of the transactions the United States Commissioners voluntarily and gratuitously offered to concede free fish, salt, coal, and lumber after a certain date specified, and that the English Commissioners declined the proposal; whereupon the American Commissioners immediately withdrew the proposal and declined to be further bound by it. I know that the Commissioners included Sir Stafford Northcote, who has as much knowledge of Canadian affairs as any man; and it also contained a most eminent man, of whose judgment and sagacity I have had personal experience—I mean Sir John Macdonald; and I am at a loss to understand how, if he had been left free to act for himself in such a matter, this offer on the part of the United States Commissioners was declined, and one which was by no means an equivalent afterwards accepted. I can only imagine that some pressure was placed upon him. But even stronger criticism seems to me to be called for by the absence of one matter from this Treaty. It is with dismay I find that it does not contain any allusion to the Fenian raids into Canada. For several years Canada has been exposed to these lawless incursions, which, if not fostered by the United States, have, as a matter of fact, originated on its soil. On two occasions they have involved serious loss to the Canadians, and on one of them a serious loss of life. Throughout the whole of this time there has been a standing menace maintained on the borders of Canada; there has been perpetual expense to their Exchequer, and deep irritation to the community. Whatever you may say of the Alabama claims you may say, with at least ten times the force, of these Fenian raids. I have searched in vain in the Treaty for any allusion or reference to compensation for these raids, and I am sorry I do not find them mentioned in the Treaty, although I do find them mentioned in the Protocols. The Americans may, perhaps, boast of the way in which these transactions have been conducted; but in England we can 1874 have little cause for satisfaction. On the 4th of March the English Commissioners proposed to consider the claims arising out of these Fenian raids; the United States Commissioners simply declined to consider them. On the 26th of April the English Commissioners again expressed a wish to consider them; again the United States Commissioners declined. On the 3rd of May the English Commissioners expressed their regret that the United States Commissioners declined to consider them, and asked them whether they still declined, and they naturally did decline to entertain the proposal. The English Commissioners thereupon say that they will not urge the matter any further, and all the more because some of these claims are in their nature constructive and inferential. But if they are so, I want to know what the Alabama claims are. If this plea is to be allowed as regards the Fenian raids, why is it to be disallowed as regards the Alabama claims? The noble Earl opposite (Earl Granville) did touch upon this question, and he went so far as to express regret that there was a total omission of the Fenian raids from the Treaty; but when he came to justify the omission I was astonished. He said that the Government did not press the matter, because they had regard to discretion as well as truth; but there is an old saying that discretion is the better part of valour; and that is an explanation which appears to me to be more plausible. All through the Protocols, the English Commissioners invariably propose and the United States Commissioners invariably decline, and the result is the view of the latter prevails. It is practically the same with regard to the Alabama claims and to the Fisheries. On the 6th of March the English Commissioners proposed the restoration of the Reciprocity Treaty; the United States Commissioners declined. Then the English Commissioners proposed to throw open the coasting trade; the United States Commissioners declined. Subsequently the latter made a proposal which was accepted. The United States Commissioners offered $1,000,000 for the joint use of the inshore fisheries; this the English Commissioners declined. Subsequently the United States made the offer to which I have alluded of coal, fish, salt, and lumber; and the English Commissioners, through some extraordinary 1875 understanding or misunderstanding of the case, refused it; the Americans retracted the offer; and the bargain ended by the English getting only fish and fish oil and money—half the original proposal. The San Juan matter has been alluded to by the noble Marquess as one of extreme difficulty; but I can hardly congratulate him on the mode in which it has been disposed of. Let me point out its solution. In the first instance the English Commissioners proposed arbitration on the basis of the Treaty of 1869; this the United States Commissioners declined. Then the English proposed the adoption of the Rosario Channel, which is favourable to English claims; and the United States Commissioners proposed the Haro Channel, which is adverse to England. Subsequently the English Commissioners proposed the Middle Channel as a compromise; the United States Commissioners simply stood upon their original proposal of the Haro Channel, which was supposed to be adverse to us, and favourable to the United States. Then the English Commissioners proposed arbitration; the United States Commissioners accepted it on the condition that the arbitration should be confined to the Rosario and the Haro Channels; the English Commissioners proposed that the arbitrators might have power to select any one intermediate channel; the Americans declined, assigning as their reason that they would not have any compromise on the subject. In this case, as in the others, what the Americans proposed was adopted in substance, as it generally was adopted in form. That really is an illustration of the manner in which this business has been conducted. But now, little as I admire the terms of the Treaty, or the manner in which those terms have been arrived at, I still must ask myself this question—Were I Canadian, what view should I take of this subject; for Canada has, undoubtedly, the power of withholding her consent from some portions of the Treaty? As a Canadian, then, I will not say that Canadian interests have been disregarded, but perhaps less justice has been done to them than they ought to have received. Canada might even say, with a certain amount of force, that while we had settled for ourselves the Alabama claims we had left the Fishery question to be arranged in an unsatisfactory way. 1876 On the other hand, I should feel, as a Canadian, that this is essentially an Imperial question in all its bearings; and I should feel, above all, that Canada is a part of the Empire, having cast in her lot for good or ill when the great Confederation of the Dominion was accomplished. Canada then assumed her place in the Empire of this country, prepared not only to fulfil her duties and responsibilities, but to make sacrifices if such were necessary. I know there are those who prophesied that Canada was incapable of bearing the slightest strain on her material interests; but I do not agree with those prophecies, and I hope and believe that the prophets will be disappointed. No doubt this Fishery question will press on some of the maritime Provinces. But, on the other hand, I have that confidence in the loyalty of Nova Scotia and New Brunswick, that, looking at this as an Imperial question, even if it involves sacrifices, they will make them cheerfully for the sake of the Empire. However low national feeling may have ebbed in this country, I believe it swells very high in Canada. I believe that there is, in some respects, a higher estimate of public duty and stronger sense of national life in Canada than in this country. I, therefore, trust that Canada, in the wise and judicious exercise of the power she enjoys, will not take it on her to withhold her consent. She has now an opportunity for showing great magnanimity, and also great political wisdom. These measures are not to be weighed by the mere appearances of the moment, or to be estimated by immediate results. There are reasons which should induce the Dominion of Canada, and every part of the maritime Provinces, as well as the western districts, to feel that at some future day advantages may arise from some of the provisions of the Treaty. The Fishery question has been a source of irritation and risk, and there are other questions, to which I need not now allude, but in which Canadian interests are involved, and which I honestly believe will not be prejudiced by the ultimate operation of this Treaty. For the rest I have no apprehension as to the future if these questions are met by an united Empire, and in a spirit of moderation, good sense, and kindly feeling on all sides. The only fear I have is that England and Canada may meet these difficulties 1877 separate and single handed; and my one great hope, wish, and earnest desire is that Canada may now act in the spirit of an integral part of this great United Empire.
THE EARL OF KIMBERLEY
My Lords, when my noble Friend (the Earl of Carnarvon) began his speech and drew a distinction between Imperial and Colonial interests, I was, I confess, filled with apprehension as to the course he was about to take; but the latter part of his speech entirely removed that apprehension, and I must now tender to him my grateful thanks for the advice he has given to Canada, and the manner in which, generally, he has treated this question. My noble Friend said, truly, that this subject must not be treated solely on colonial grounds, but as one affecting the whole Empire. We are frequently told that the bond between our Colonies and the Home Government should be knit closer; but, on the other hand, neither the Colonies nor the mother country can look at these questions in a narrow, provincial spirit. I am far from casting any reflection on the Canadians because there is considerable excitement in the Dominion on the subject of this Treaty, which intimately touches their interests. I am almost ashamed to occupy your Lordships' attention after the speeches of my noble Friends near me; but holding the position I do, I cannot refrain from making one or two remarks on the subject. No greater mistake could be made by the Canadians than to fix their minds in the consideration of this question solely on those portions of the Treaty which specially concern the Dominion. It is perfectly true, as stated by my noble Friend (Earl De Grey and Ripon), that no part of the British Empire can be so much interested as Canada in the existence of cordial relations between this country and the United States. If any difference were unfortunately to arise between this country and the United States, Canada would be the first to suffer; and, on the other hand, the establishment of cordial relations between the United States and the mother country would affect no part of the Empire so favourably as the Canadian Dominion. I say, therefore, that the settlement of these questions is a result in which Canada, above all other parts of the Empire, has a deep interest; while the sacrifices which have 1878 been made during the Civil War have not been made by Canada, but by England. Canada is a great maritime country—your Lordships are scarcely aware of the extent to which her shipping interest has increased—and she is therefore especially concerned in some of the most important portions of the Treaty. Addressing myself to the important question of the Fisheries—my noble Friend opposite (the Earl of Carnarvon) said that my noble Friend behind me, one of the High Commissioners, had spoken of the bargain as to Fisheries as one of exchange; and no doubt it would be absurd to value the fisheries of the American coast as an equivalent for the fisheries on the colonial coast. But what I understood my noble Friend to speak of was the value of the free admission of colonial fish into the American market. My noble Friend opposite said he had seen with surprise a passage in the Protocol which referred to the offer made by the American Commissioners; but if he would read the words of the Protocol itself he would find, to a considerable extent, an answer to his own surprise. At page 12 it was stated that the Amerian Commissioners said—That inasmuch as one branch of Congress had recently, more than once, expressed itself in favour of the abolition of duties on coal and salt, they would propose that coal, salt, and fish be reciprocally admitted free; and that inasmuch as Congress had removed the duty from a portion of the lumber heretofore subject to duty, and as the tendency of legislation in the United States was towards the reduction of taxation and of duties in proportion to the reduction of the public debt and expenses, they would further propose that lumber be admitted free from duty from and after the 1st of July, 1874, subject to the approval of Congress.We have got the admission of fish and fish oil, and the money payment in addition. There is no doubt that the equity of the case essentially turns on the money payment. If Canada on her part gives much more than the United States give on theirs, then nothing could be fairer than that there should be a money payment for the excess of value on one side. I freely confess that I share the objection of my noble Friend behind me to a Treaty of Reciprocity. I know how strong the feeling in Canada is in favour of such a Treaty, and, desiring as far as might be to consult the wishes of all parties of the Empire, I should have rejoiced if it had been possible to gratify 1879 the wish of the Canadian people in that respect, even though believing it to be a mistake in policy. But it seems to me that the money payment is a greater recognition of the right to the inshore fisheries than any tariff concessions. I am entirely aware of the very strong feeling which has existed for a very long time in Canada that these fisheries should remain as a means of obtaining tariff concessions from the United States. At the same time, there are strong symptoms that a free trade policy is growing in favour in the United States, and we have every reason to believe that before long a great advance will be made towards the admission of Canadian produce. This Treaty, in all its parts, has a most special bearing on that question, because it is notorious that the Reciprocity Treaty was renounced by the United States not merely because they had adopted a Protectionist policy, but because its renunciation bore an unfriendly aspect towards this country; and I believe that the establishment of a cordial understanding between England and America will be more likely than anything else to lead to the consummation which the Canadians desire. My noble Friend (the Earl of Carnarvon) also referred to a point on which I confess I feel great regret that no more satisfactory conclusion was arrived at. I mean the question of the claim for damages done by the Fenian raids in Canada. The grounds on which that claim was not pressed were very simple. If we had absolutely insisted upon these claims the negotiations might have been regarded as at once utterly and irrevocably broken off: and what I wish to put to the Canadian people is this—considering the great advantages they would derive from the strengthening of friendly relations with the United States, it was not to be expected that we should allow the success of the whole negotiation to be endangered by insisting on these claims. There was, moreover, this difference between the Fenian claims and the Alabama claims—that the Alabama having committed great depredations on American commerce, any liability arising in that case would be for actual damage done; whereas, in the case of the Fenian raids, the absolute damage done was extremely small, because the Fenians did not advance more than a few hundred yards into our territory and did not dare 1880 to remain but a very few hours there. The claim made for compensation included not merely the actual damage done, but the losses caused by the disturbance of trade through the Fenian raids. At the same time, I should have regarded it as a ground for extreme satisfaction—although the amount of money received might have been very small—if we had obtained a distinct admission in principle of the liability of the United States for such losses as were directly occasioned by the Fenians in their attacks upon Canada. My noble Friend (the Earl of Carnarvon) thinks the American negotiators were extremely shrewd in the matter of San Juan. I do not see where their extreme shrewdness lay, unless it was that they insisted on their claim and we insisted on ours. If our case is a good one, as I apprehend it is, I think there was no particular shrewdness on the part of the American negotiators. There are two ways in which you may settle a question like that of San Juan: the one is by a compromise, and the other by getting the rival claims of both sides decided by an arbitrator. The latter is an arrangement equally fair for both parties, and one of which we have no right to complain. In conclusion, I sincerely hope with my noble Friend who spoke last (the Earl of Carnarvon) that the Dominion of Canada will approach the consideration of the subject, in which they are specially interested, in a calm and impartial spirit. No doubt it may seem to them that we have not obtained all that they had a right to expect; but, while I do not think we should make the interests of the Colonies merely subordinate to the interests of this country, I am sure we are not unreasonable in expecting that the interest of the whole Empire should not be made subordinate to those of any particular Colony. I think the Canadian people will do well to look at this Treaty as a whole, to consider that they were represented on the Commission by a Member of their own Government inferior to none in ability, and to remember that this question of the Fisheries is not one which could wisely be left unsettled for an indefinite period, having for a long time been a source of irritating controversy between the United States and this country. It is not unreasonable that we should have endeavoured to seize this opportunity of making an arrangement 1881 which would put an end to this controversy. I ought to mention that there are some other very important points on which Canada has obtained considerable advantages—such as securing the right to send goods in bond through the United States, which will be of great advantage to her. The concession of the free navigation of the canals is subject to the confirmation of the Canadian Parliament. It really involves no concession in practice, because the Canadian Government, in a liberal spirit, has never refused the passage of American ships, at least in recent years; and therefore we are only asking them to convert into a law a permission that has hitherto been given as a favour. There are other conditions in the Treaty favourable to Canada, and I hope and believe that the Canadian people will weigh the whole of this matter in a fair, an equitable, and an impartial spirit, and I trust that if they pass the law necessary to give effect to the provisions of this Treaty, its effect will be that they will find that they have conferred benefits on themselves, and also knit closer the bonds of union between the Dominion and this country.
§ LORD CAIRNS
My Lords, I cannot feel or express any surprise either that the question of this Treaty should have been brought before your Lordships, or that from the state of the House at this moment there should already be a tolerable proof that your Lordships do not think it desirable to proceed to a division on the Motion of the noble Earl (Earl Russell). The Treaty itself is so important as regards the absolute obligations that it may hereafter lay upon this country, so important with reference to the precedent that is introduced of dealing with international questions, that it seems to me hardly possible to avoid at the earliest moment taking some notice of it in your Lordships' House. But I own that, speaking with great respect of so illustrious an authority as the noble Earl (Earl Russell), I think the course he has taken in proposing this Motion is one which it would be impossible for us to follow by supporting it. I will not repeat what has been already said by my noble Friend (the Earl of Derby); but I do not know whether your Lordships have observed the particular form in which authority was given to the Commissioners who 1882 had to negotiate this Treaty. I observe that as regards the Commissioners of the United States, the course that was taken by them was to produce their credentials, which consisted merely of an authority to discuss and sign a Treaty subject to ratification by the Senate, and at the same time they informed the Commissioners that by the Constitution of the United States anything they might do must go for nothing unless it was confirmed by the Senate. On the other hand, the Commissioners of Her Majesty produced their credentials, which were of the usual kind, though the words in which they were couched ought to be before your Lordships' mind. Her Majesty is—Giving to them, or to any three or more of them, all manner of power and authority to treat, adjust, and conclude with such Minister or Ministers as may be vested with similar power and authority on the part of Our Good Friends the United States of America, any Treaties, Conventions, or Agreements that may tend to the attainment of the above-mentioned end, and to sign for Us and in Our name everything so agreed upon and concluded, and to do and transact all such other matters as may appertain to the finishing of the aforesaid work in as ample manner and form, and with equal force and efficacy, as We Ourselves could do if personally present: Engaging and promising upon Our Royal Word, that whatever things shall be so transacted and concluded by Our said High Commissioners, Procurators, and Plenipotentiaries shall be agreed to, acknowledged, and accepted by Us in the fullest manner, and that We will never suffer, either in the whole or in part, any person whatsoever to infringe the same, or act contrary thereto, as far as it lies in Our power.I refer to these words for this purpose. I am as jealous as any of your Lordships can be to preserve intact and in full the proper power of Parliament; but I maintain that when a Treaty has been signed, as this Treaty has been, by Plenipotentiaries possessing the powers I have read, the mere accidental circumstance that the ratifications have not been actually exchanged makes no difference to the substance, though it may to the form; so that, to all intents and purposes, this Treaty is at this moment, in honour and honesty, as binding upon this country, according to the Constitution of the country, as if the ratifications had been actually exchanged. Of course, it is in the power of Parliament, even if the ratifications had been exchanged, to force the Government to depart from the Treaty; but I maintain that you could not be doing a stronger act if, 1883 after the exchange of ratifications, you forced the Government to take that step, than if at a moment of time when nothing was wanting but an exchange of the ratifications you passed the Resolution thus proposed by the noble Earl, which may have the effect of driving the Government to take the same step. I think it impossible for your Lordships to consider that this is a proposition upon which we can really go to a division. But there seems to me to be another reason why, even if the Motion were not open to the objection to which I have referred, and even if it were a Motion asking for the opinion of Parliament upon the Treaty as a concluded Treaty, it would at this moment be inopportune, inexpedient, and, I think, absolutely wrong for us to pronounce an opinion upon it. I say that with reference particularly to the position of Canada. This Treaty, so far as it relates to that country, is binding upon Great Britain by virtue of the constitutional power possessed by the advisers of the Crown to enter into diplomatic arrangements. With regard to Canada it is different, because by the express provisions of the Treaty the obligations of the articles relating to Canada are made to depend upon the question whether Canada in its Parliament will or will not ratify those articles. Therefore, although I maintain that, as regards the questions of Imperial importance in the Treaty, we are not free, Canada is free; and it remains for Canada in a regular and constitutional manner to say whether she accepts those provisions of the Treaty which relate to her. On the one hand, I maintain that we ought not to prejudice the action of Canada in the matter. The resolution of the Dominion of Canada must and ought to be taken upon her own responsibility, and we ought not, by anything we may say, or any Resolution at which we may arrive, to prejudice the course that may be taken by Canada upon that subject. On the other hand, if it should be the case—as to which I will carefully avoid expressing any opinion—that Canada should not agree to accept the terms of that part of the Treaty which relates to her interests, then, when the Treaty comes to be considered in this country, it appears to me that a very grave question may arise in the minds of the persons who may have to consider that Treaty. I can perfectly 1884 well understand that some persons will say—"This is a Treaty which, as far as regards Imperial interests, we see some objection to; but, on the whole, looking to the settlement of the Fisheries question, and to the complicated relations that might exist between Canada and the United States, we are willing to put up with and accept what we consider would be otherwise undesirable in the Imperial arrangements for the sake of having closed at once and for ever this difficult question with regard to the Canadian Fisheries." But if it turned out that the question is not closed but remains still open, then the Treaty comes to be considered denuded of its Canadian part, and it may well be that the minds of the people of this country may take a very different view of the Treaty to that which they would take if it were a completed Treaty as regards the whole of its provisions. In the observations which I make upon this document I would speak of the Treaty as one having been entered into by the Government. This is a Treaty which in form is negotiated through the medium of Commissioners. So far as the British Commissioners were concerned, we have the clearest evidence from these Protocols that every clause of that Treaty was communicated to the Government at home, and by them assented to. It is, therefore, a Treaty upon which the Government did not merely give a final approval, but for the daily composition of it they were virtually responsible. Something has been said about part of the Treaty consisting of an "apology." I own that I do not in the least regret that an expression of sorrow was made with regard to those acts committed by the Alabama and other vessels of that class which caused such irritation to the Government of the United States; because, so far as I have observed the conduct and expressions of public men in this country—not from one side of politics but from both—although their regret never assumed the formal shape of a declaration from one Government to the other, yet I have rarely, if ever, observed these matters referred to without an expression of regret that those acts should actually have happened, whatever may have been the opinion entertained as to the responsibility of the Government for them. I see no disgrace—on the contrary, I see considerable merit—in the expression by Government 1885 to a friendly country of sorrow for acts of this kind, even although we are able to plead our perfect innocence in respect of responsibility. I wish, however, the word "escape" had not been found in the apology, as it is termed, as describing the exit from our ports of the Alabama and other ships of that kind. I cannot help thinking that was an unguarded expression which may affect the course of the future arbitration. I can easily imagine that in some minds the word "escape" would be construed unfavourably to this country, for it means that something has got away which might have been retained, and which ought to have been retained; we speak of the "escape" of a prisoner, and the meaning of the term is that there was power to prevent the escape, and that the escape happened in spite of it. I come now to what has been the subject of much more comment, the rules which are laid down to guide the conduct of the arbitrators. I do not know that I do very much, if at all, object to these rules in substance as guides for our conduct in the future; indeed, so important do I regard it that we should have something clear and precise for our guidance in the future, that I should be willing to sacrifice my opinion of what in the abstract would be desirable rules, for the sake of having some rules about which there can be no mistake. That is what I understood to be the opinion of my noble Friend the late Foreign Secretary (the Earl of Derby), when he said these were rules he did not care to object to; and the noble Earl at present in charge of the Foreign Office has truly said that in our legislation of last year powers were taken as a part of our municipal law to enforce compliance with international duty in a manner which would arm us with perfect power to prevent any one of these rules being violated. My remarks, then, upon these rules apply to the past. My Lords, the noble Earl the Foreign Secretary, in the course of his speech, touched a great many topics, and gave us a most interesting history of the origin of this negotiation, and paid most eloquent tributes to everybody and to every country that in the most remote degree was concerned in making, or thinking of, or commenting upon, or has in any way interfered with this Treaty. More ample tribute I have never heard; but when the noble Earl approached the 1886 comments made upon these rules by the noble Earl who introduced the question to our notice, I failed to get from him any explanation whatever of the discrepancies noticeable in them. The point does not involve any abstruse principle of International Law; it is matter of the simple meaning of words. The second rule says that a neutral Government is bound not to permit or suffer either belligerent to make use of its ports or waters "for the purpose of the renewal or augmentation of military supplies or arms." These words are too clear to permit a doubt. They strike out the use of a neutral port or neutral waters as a place from which you are to ship military stores. I do not mean to lay down that, under this convention, the American Government would be able to urge against us that during the American War contraband of war was exported from this country in ships which were not belligerent ships. This rule is governed by that which is referred to arbitration as explained in previous articles; and the difficulty is not that we shall have to pay the United States for contraband of war being exported, but a much higher one. We have taken the attitude with the German Government during the late war with France, that it was no violation of International Law that there should be permitted the free export of military stores from a neutral country to one of the belligerents; and without desiring to raise a question unfavourable to ourselves in a controversy between ourselves and the United States or the German Government; but I do entreat the Government to consider this point and let us have an answer upon it. Suppose the German Government comes to the noble Earl hereafter and says—"We had a controversy with you upon this subject last autumn, in the course of which we maintained that you should have stopped the exportation of military stores to France; you maintained to the contrary, but you have gone to the United States and have laid down a rule for the past and the future the words of which amount clearly to an admission of the very controversy in which we were engaged." With what face could you refuse their demand? It is quite possible Her Majesty's Government and the United States Government did not intend this second article should have this construc- 1887 tion; but, nevertheless, I contend that this is the simple and ordinary construction to be put upon it. And if this be so I want to know, have the Government taken any steps to prevent this construction being put upon it? [Earl GRANVILLE indicated assent.] I am glad to hear something has been done in this direction; but I regret that the Treaty should scarcely have been read before you have been obliged to apply to the United States to put a different construction upon it from that which its words ordinarily bear. And how have the United States dealt with the application? The Treaty has been confirmed by the Senate, and although the United States Government may assent to a new interpretation being put upon an article, the Senate will have a right to insist upon the general interpretation of the article. Now, my Lords, let us look at the marked difference between the phraseology of the first rule and the second. I do not know the reason for the difference, but it is too clear what the consequences may be. In the first article the duty of the neutral is qualified in this way—the neutral is "to use all diligence to prevent the fitting out," &c., of any vessel "it has reasonable ground to believe is intended" to carry on war against a belligerent. I want to know why these words, "which it has reasonable ground to believe," are not repeated in the second rule? Why is the phraseology so entirely different in the first and second parts of the clause? The only explanation hitherto given us is that given by the President of the Council, who says that the charge against us is that we did not use that due diligence which was incumbent upon us as neutrals. But the words "due diligence" occur in the first part of the clause just as much as they do in the second; and if due diligence is enough, and would prevent the question arising as to whether you had reasonable ground for believing, why should they not be sufficient in the first part as well as in the second? But the question would be one of the first to arise under the second part of the clause. When you urge that you had no reasonable ground for believing that a vessel leaving your ports was intended to cruise or carry on war against a Power with which you were at peace, it may be said that you ought to have known it, and would have known it if you had used 1888 due diligence. Therefore, I think it most important that, through what I may call an oversight on the part of those who constructed this clause, those qualifying words which were our only protection were omitted from the second part. And now I am anxious to lay before your Lordships what I feel to be a great danger and a great unfairness to this country in the first part of this rule. Any one of your Lordships who considers the sentence will see that the point turns upon these words "due diligence"—a neutral is bound to use "due diligence." Now, the moment you introduce those words you give rise to another question, for which I do not find any solution in this rule. What is the standard by which you can measure due diligence? Due diligence by itself means nothing. What is due diligence with one man with one Power is not due diligence with another man with a greater Power. Now, this becomes much more important when you introduce another consideration. The rule I have read is to be a rule of International Law, and if there is one thing more clear than another in International Law, it is this, that as between two countries, it is no excuse where an international obligation has been broken for one country to say to another that its municipal law did not confer upon its Executive sufficient power to enable it to fulfil its international duty. Suppose the United States, in applying this retrospective law, should say that the Government of 1863 or 1864 were bound to use due diligence to prevent the fitting out, the arming, or equipment of any vessel of this kind, they might also say—"Do not tell us what the law of your country was. Do not tell us that you required clear evidence to be brought before you of the object for which the ship was intended before you could detain her. You have admitted that you were required to maintain due diligence, and by that standard, and that standard alone, you must be judged." Observe the position in which this country would be placed. You are going to judge this country by a standard which the Executive in 1863 or 1864 did not rise to, and which they could not rise to, because the municipal law at the time prevented them from doing so. What were the arguments used by Lord Palmerston and by the Government of that day? They said to the United States 1889 and to Mr. Adams—"You ask us to do certain things in the way of detaining ships upon your suspicions and upon your statements. We are not bound by International Law to detain them, and the municipal law of the country will not permit us to do so." And yet you are going to judge the acts of the Government and of the nation of 1864 by a rule which it was utterly impossible we could have complied with, because it was entirely opposed to our existing municipal law. I desire to point this out to your Lordships as one serious blot in these terms of arbitration. Now, the noble Earl the Foreign Secretary has referred to the position of this matter under the Treaty which was proposed by my noble Friend the late Foreign Secretary (the Earl of Derby), and which was subsequently approved by Lord Clarendon. The noble Earl the Foreign Secretary says you have on the one hand escaped the danger you were under in the former Treaty, and on the other hand you have obtained the advantage in the present form of Treaty of having definite rules by which the arbitrator is to be guided. I quite concur in the opinion that under the arbitration proposed by my noble Friend the late Foreign Secretary and Lord Clarendon it was quite possible for the United States to have made extravagant claims. But what is there in the present Treaty to prevent the same thing? I cannot find one single word in these Protocols or in these rules which would prevent such claims being put in and taking their chance, and under the Treaty proposed by my noble Friend they could do more. There is this difference in a controversy of this kind between leaving all questions open to an arbitrator or arbitrators in whom you have confidence, and in referring these questions to these arbitrators with certain cut and dried propositions unfavourable to your views of the case. Suppose I charge a man with burning my house, and tell him that I hold him answerable for all the damages that ensue; and he said—"You have no power whatever. I happened to be passing at the time and I saw a great number of men attacking your house and burning it. It was not in my power to prevent them doing it. I am sorry to see what happened, and I will refer the whole question to arbitration." I should be quite willing to say—"I am perfectly 1890 prepared to refer the question to arbitration if there is an article in the agreement providing that any person passing by while other persons were setting fire to my house and did not stop them is answerable for all the civil consequences of the house improperly being destroyed." Of course, if a man is so foolish as to consent to such an arrangement he must not be surprised when he is made responsible for all the damage. In conclusion, I contend, on the one hand, that this is not the time for pronouncing by a vote of Parliament upon the merit or demerit of this Treaty—that time may come hereafter; but, on the other hand, I maintain that the Treaty is one which, so far as the Alabama claims are concerned, has been entered upon most carelessly and most unguardedly, and must inevitably lead to much discussion hereafter in Parliament.
THE LORD CHANCELLOR
My Lords, the Secretary of State for Foreign Affairs might well say at the commencement of this debate that the Government desired nothing less than a full discussion of the Treaty that has been entered into and called the Treaty of Washington, and that it was desirable on all accounts that the Legislature should not show itself indifferent to the importance of the subject-matter of that Treaty. We have had great reason to be satisfied with this discussion, from the opening indictment of my noble Friend (Earl Russell) down to the first and statesmanlike portion of the speech which has just been made by my noble and learned Friend (Lord Cairns). Of the noble Earl it could not be said that he "hinted a fault or hesitated dislike," for his speech was a bold and vigorous onslaught upon the policy of the Government, and I must say that I thought the Resolution with which he concluded was far too weak for his premises, because undoubtedly if — as was most strongly hinted in his eloquent peroration—the Ministers who negotiated the Treaty had been unmindful of the honour, dignity, and character of the country, the only legitimate course would be to call for their impeachment. I shall not now enter upon a discussion of the minute details dealt with by my noble and learned Friend in the latter part of his speech, but say a few words upon the broad question. In the first place, it was well said that there is no correlative 1891 connection between international and municipal law in the abstract; that a foreign nation has nothing to do with the municipal law of another nation, but has a right to meet a statement that in any country with which it has dealings there exists no such law as would prevent the acts complained of, with the reply that it ought to have such a law, and that International Law alone must settle the question between them—this being the line taken by the United States in reference to the Alabama. But, on the other hand, there is one point of view in which municipal law has something to say on the subject, and is in some way connected with International Law. If you have a municipal law which will enable you to do all that International Law requires, it would be an evidence of ill-will that might lead to coldness between two nations not to enforce that law whenever occasion required. That being so, whenever two bodies of persons meet, representing entirely independent Governments, holding different views on the points to be decided by International Law, it seems to me to be not only not contrary to law, but consistent with the highest wisdom for one Government to agree that though at the time of certain occurrences they were not liable to pay damages for the results of them, they had become willing to agree to prohibit by municipal law a recurrence of such events, and to submit internationally to be held liable under similar circumstances in the future, and that for the sake of maintaining the good feeling generated and the peace so secured for ever, they were willing that events which had occurred in the past should be decided by the amended law of the present. In my judgment, it has been sufficiently shown that the Treaty is by no means disadvantageous as compared with that which existed for a short time in embryo, and was agreed to by the noble Earl (the Earl of Derby) and Mr. Reverdy Johnson. That Treaty would not have placed us in a condition so good as the one now concluded. It laid nothing down in a definitive manner, but left everything open—which was in itself a disadvantage; and taking it as a whole I cannot help thinking that it was a Treaty which would not have had the effect of restoring good feeling between the two countries. It is highly desirable that we should fix definitely what should 1892 be the course of proceeding between us and the United States. The only question which remains therefore is, whether the Government, through the medium of the Commissioners, have made proper arrangements to attain this object. I have some complaint against the speech of my noble and learned Friend who spoke last (Lord Cairns). When a Treaty has been concluded, I think nothing but what is absolutely necessary in point of principle should be said against it. But my noble and learned Friend said he had no objection to the rules for our future guidance; and after that admission I was certainly very much surprised to hear him make a series of minute comments on the phraseology of these rules—comments which might be made use of against England in the coming arbitration by those who act on behalf of the United States. I venture to express a hope that the case is not so bad with us as my hon. and learned Friend seemed to take it to be. With respect to the latter part of the second rule about supplies of arms and the recruitment of men, I think my noble and learned Friend will agree with me that the words could only be interpreted as to have reference to belligerent vessels cruising against a State with which we were in amity. The noble Earl (Earl Russell) stated at the commencement of his speech that he was glad to hear me say on a previous occasion, in reference to the demand made by the Prussian Minister, that no jurist who regarded his reputation would maintain there was any limitation in International Law with respect to supplying arms to a belligerent. I still adhere to that opinion, and maintain that this second rule, which speaks of ports and water, has reference solely to vessels. Indeed, the United States practically hold as strongly as we do that there is no breach of International Law in the supply of arms to belligerents. I admit, indeed, that the rule standing alone without any context to justify or control it might be mistaken; but this difficulty will be provided for, as it has been proposed by the President of the United States that the rule shall be submitted to other nations qualified in accordance with the other parts of the Treaty. As to the phrase "rational ground" for believing that the vessel was intended to carry on war against a belligerent, I 1893 contend that it does not apply to a vessel not intended to leave the harbour for a destination. As to "due diligence," it must be measured by circumstances. For instance, could the Swiss Government allege that they had used "due diligence" in admitting into their territory the 80,000 French soldiers? I cannot sit down without alluding to what has been said about my remark upon prestige, which has been subjected to some satirical criticism. I might explain that when I said that "I did not regard the prestige of a country as a thing to be desired, but, otherwise, a thing to be avoided," I did not omit to add—"with a due regard to the honour and dignity of the country." I said more, for I added that I believed Her Majesty's present Government had taken care to maintain a reputation for truth and steadfastness, which I regarded as a more important matter than prestige, and that, while they had consulted the honour and dignity of the country, they had secured the respect of foreign nations by establishing peace and tranquillity at home on the basis of well-regulated legislation to satisfy the just wants of the people.
§ THE MARQUESS OF SALISBURY
I ask myself, in judging of this Treaty, what have we got by it, and what have we given up for it? What we have got by it must be expressed, I fear, in very few sentences, and in very brief language. As far as I can understand, we have got by it simply the advantage of calming the susceptibilities of the American people. I remember a passage in a distinguished essayist in which he dwells on the advantages enjoyed in the family circle by persons who had the reputation of having bad tempers; everything is sacrificed to them for the sake of keeping peace at home. This is the view which the Government appear to take of the American people. The Government appear to think that their susceptibilities are so keen, and their liability to irritatation so great, that any sacrifice is legitimate and reasonable which will enable us to preserve friendly relations with them. The Lord Chancellor stated, as a ground for not accepting the offer of arbitration which was made, that it might possibly have resulted in a verdict unfavourable to them, and then their susceptibilities would not have been calmed. In the same way the people of New Brunswick were 1894 called upon to give up their valuable Fisheries, for which a money indemnity would be a small compensation. We have heard no reason for abandoning the claim to compensation for the Fenian raids, except the susceptibility of the American people, and that had those claims been pressed the Treaty might never have been concluded. [Earl GRANVILLE was understood to object to this statement.] If what was said does not come to the same thing I do not know the meaning of language. The sole advantage hoped for from the Treaty was the calming of the feelings of this great and magnanimous nation, and for this end Her Majesty's Government persist in treating them as a spoilt child in the nursery of nations. The advantage suggested by my noble and learned Friend on the Woolsack does seem to me to be most problematical. He says that the American people have been persistently urging this doctrine upon us for the last few years, and if we accept it now we shall have the enormous advantage that they will act upon it in case of a war in the future. But, surely, whatever complications may arise the American people will have the consistency to observe the doctrine they have been urging so persistently. The noble Earl the Secretary of State for the Colonies shakes his head, and I dare say he knows the American people better than I do; but no honourable and upright people would act otherwise than as I have suggested. In order to gain this end, you have sacrificed the rights of neutral nations. In the future we all must hope that England will act the part of a neutral nation, and that all which concerns the rights, privileges, and obligations of a neutral nation will concern her more than any other nation in the world. What will be the position of a neutral nation now that this Treaty has become part of International Law? One great disadvantage in which you put us for the future is that there is no longer any such certain thing as International Law, because you have established it as a precedent, and have therefore inserted it on the code of International Law and have made it binding on a neutral nation, that it is responsible for not obeying a rule which did not exist at the time an act complained of was committed. What you have now consented that England shall be punished for doing others 1895 will be blamed for doing hereafter. The pretext which America was successful in using against you will be used in future years against other nations—especially when a powerful nation chooses to use it against a weak one. It will be lawful for a belligerent to require of a neutral compensation for the neutral not observing something which the belligerent thinks to be abstractedly just, but which was not in International Law at the time the acts complained of were committed; and that appears to me to be a serious addition to the liabilities and the dangers of neutrals. Another serious alteration is effected by the Treaty—again affecting the position of neutrals. You have promised that you will not suffer any ports or waters in your Dominions to be made the base of naval operations by one belligerent against the other. Consider what is the meaning to England of this. The negotiators thought of Liverpool, Glasgow, and London; but we have ports and waters in many parts of the world—in India, Australia, New Zealand—and are we going to undertake that none of these shall be used by one belligerent against another? So long as these were matters of the comity of nations, merely guaranteed by municipal law, it was open to you to give such interpretation as your own necessity might dictate to the rules laid down for yourselves; but now you have transferred these obligations to International Law, and the decision of your rights and liabilities rests with a powerful belligerent, or some arbitrator of whom you know little. We have not been told what is to be the standard of "due diligence" for us. A neutral will now be bound to adopt a system of espionage in order to ascertain whether any vessel is intended for a hostile cruise. It will be bound to increase its police that it may have full information of all such undertakings. It will be bound to interfere with its subjects, to make minute inquisitions, to take an enormous number of costly and laborious precautions which before this Treaty it was not bound to take. That is the real evil that has come to us—the only reward we have had after all the sacrifices we have made. I have abstained, my Lords, from going into the past history of this question. I feel it is full of matter that might be made the subject of acrimonious retort; but 1896 I do not wish to say anything that might raise or add to asperities between the two countries. But I must earnestly protest against the policy which has been adopted by Her Majesty's Government, and especially against the manner in which they have sacrificed the interests of neutrals, and against the enormous increase of danger and liability which that policy will for the future entail upon us.
THE DUKE OF ARGYLL
My Lords, I cannot allow this debate to close without saying a few words. The noble Marquess who has just sat down (the Marquess of Salisbury), as I anticipated, availed himself of the opportunity of doing two things which appear always to afford him great pleasure—the first is to say something amiable about the United States, and the second to say something equally amiable about Her Majesty's Government. It is always very pleasant to kill two birds with one stone, and the noble Marquess has certainly had that pleasure to-night. The noble Marquess has asked a question which he has answered on his own authority—namely, What is our gain from this Treaty with the United States? His answer was, that we have gained nothing except the attempt to soothe the susceptibilities of an irritable nation. I am sorry the noble Marquess did not hear the speeches of two noble Lords who sit with him on the same bench. There is certainly a remarkable difference between the argument of the noble Marquess and that of his two noble Friends. We have gained on the part of the United States an acknowledgment of certain great rules as rules of International Law for the future. There is no doubt about that fact. The noble Earl (the Earl of Derby) who has taken so distinguished a part in this question by departing from the course he had formerly prescribed for himself when he refused arbitration, stated that one of the great difficulties and evils of our position, and of his position as Secretary of State, was the extreme vagueness and the extreme difficulty of exact definition of the rules of International Law. Is it not a great calamity to us, and a great danger to the peace of the world, that we have no rules of International Law except such as are very vague and incapable of accurate definition? I say, then, we have gained from the United 1897 States a concurrence with us in certain declarations of the principles and rules of International Law, which shall guide us for the future. The noble and learned Lord (Lord Cairns) told us that as regards the future he had no fault whatever to find with the substance of these rules: his great complaint is that Her Majesty's Government have adopted rules that are to be applied retrospectively, while, however advantageous for the future, are not adaptable to the pre-existing state of things. The noble Earl the former Secretary of State (the Earl of Derby) seemed somewhat surprised at the interruptions from this bench when he quoted the apparently contradictory admissions made with regard to the non-existence of these rules as rules of International Law. But the admissions we had made were as to the pre-existing state of things. The first admission was in these words—Her Majesty's Government cannot accede to forego rules or principles of International Law which were in force at the time the claims mentioned arose.That was not a wire-drawn distinction, it was a distinction of the highest importance. What we admitted is this—that these rules had not acquired such force and authority among nations as that we could say with truth that they were acknowledged principles in force at that time; and what we have acknowledged is that though not in force as International Law, yet they are such as Her Majesty's Government have consented to act upon in previous negotiations. That is a perfectly accurate description of the facts. We talk of International Law as an easily ascertained thing. But the sources of International Law are many and various. You have, first of all, the dicta of great jurists; secondly, the decisions of legal Courts, prize Courts, and other Courts administering International Law; you have, thirdly, the Conventions between States, defining their international relations; and, lastly, you have admissions made by different Governments during a long course of correspondence and controversy, out of which new principles of International Law from time to time are evolved. International Law is not a code complete and absolute. It is a growing code—a code not only capable of development, but necessarily developed by the course of events. Every one of the rules we have admitted are rules that 1898 have been acted upon before. We have, therefore, effected a great object for the peace of the world by getting the American Government to admit with us that these rules shall be considered in future principles of International Law. That is the great gain of this Treaty. And we have sacrificed literally nothing. There is another point which has been vaguely alluded to in several speeches—namely, the relation in which our municipal law stands to the great principles of International Law. The noble and learned Lord opposite (Lord Cairns) said that our municipal laws are not the measure of our international obligations, and he says we ought to have allowed this arbitration solely on the principles of International Law. Now, the Instruction to the Commission of 1869—leading to the Act of 1870—relative to the laws of the realm available for the enforcement of neutrality, was to inquire—What changes ought to be made in such laws for the purpose of giving to them increased efficiency, and bringing them into full conformity with our international obligations.I maintain broadly this proposition—that these municipal statutes, one and all, are defensible only on the ground that they are laws to enable the Government to fulfil their international obligations. And so it may be said of the Foreign Enlistment Act. You have no right to prevent your subjects from doing what they have a right to do—you have a right to prevent them from doing what is against international comity, but not any other thing; and therefore I maintain that everyone of these statutes proceeds on the principle that they are instruments for enabling you to fulfil your international obligations. My noble Friend (Lord Cairns) says we were right in referring the question in dispute to arbitration, but ought to have required that it should be decided according to International Law. But International Law is wholly vague and uncertain in these matters. This is not a matter on which Courts of Law or Conventions between different States have laid down definite rules. Then my noble Friend says that we ought to have left the arbitrators to decide, if not upon international, upon our own statute law; but my noble Friend himself towards the close of his Correspondence with Mr. Adams said that neither the law of America, nor our own, had proved upon 1899 trial completely efficacious. But efficacious for what? Why, for enabling you to carry into effect your international obligations. My noble Friend confessed—what I am not prepared to confess—that our first Foreign Enlistment Act has proved inefficacious. Then, if we meant not merely to patch up a temporary peace with the United States, but to settle the question of International Law for the future, it would have been perfectly fatuous to have left the matter to be determined according to our statute law. The noble and learned Lord (Lord Cairns) says it will be argued before the arbitrators that we ought to have altered our municipal law if it was inefficient. I say, in opposition to the authority of my noble and learned Friend, that we really had no proof whatever that our municipal law was insufficient for the purpose. The Alabama escaped by a mere accident. It was under the Foreign Enlistment Act that my noble and learned Friend tried to catch the Alabama, and it was under that Act that he caught other vessels. It is a remarkable fact that every one of the statutes brought in by the United States to enable them to fulfil their duties to other States were brought in upon the remonstrances of foreign Governments and to satisfy those remonstrances. In conclusion, the great boon we have secured by this Treaty is this—that for the future the Law of Nations, as between the two greatest maritime States in the world, is settled in regard to this matter, and that for this great boon we have literally sacrificed nothing except the admission that we are willing to apply to the case of the Alabama and that of other vessels those rules—I do not say of International Law, but of international comity—which we have ourselves over and over again admitted.
THE EARL OF AIRLIE
said, he did not rise to prolong the debate, but merely to read to their Lordships, after what had passed, an extract from a Circular addressed by the noble Earl the Foreign Secretary to the Lords Commissioners of the Admiralty on July 19, 1870, in reference to the prohibition of the use of British ports by belligerents. The extract in question was to this effect—All ships of war of either belligerent are prohibited from making use of British ports or roadsteads as a station or place of resort for the 1900 purpose of obtaining any facilities of warlike equipment, or for any warlike purpose.
THE EARL OF LAUDERDALE
said he believed that no apology was due from this country to the United States, because in his view we had done no wrong. If he thought we had done wrong he should be the first to advocate our making an apology, but not our going into arbitration. He held, however, that we had committed no breach either of municipal or of International Law. When the Alabama left our shores she was an unarmed vessel, not fitted for war in any way. She was taken to the Island of Terceira, 1,500 miles from British waters, and manned and armed off that island. As a sailor he had had a little to do with International Law, and could state that if a vessel had any war fittings or war equipments of any kind they could seize her and detain her; but in applying this new sort of International Law, he knew not what criterion they were to judge by. What was a reasonable cause for supposing that a vessel was going out to cruise against a friendly Power? A Consul or Vice Consul would go to our Minister and say that a particular vessel was about to become a cruiser, and that Minister would represent the matter to our Foreign Office. But it was easy to suppose or suspect anything, and they must have facts to proceed upon. He contended that from the moment the Alabama was commissioned and became a man-of-war for the Confederate States we were no longer answerable for what she did. He agreed with the noble Earl (Earl Russell) who had brought forward this Motion, and if he would go to a division would support him.
§ EARL RUSSELL
I wish to say a few words as to the difficult position in which we shall be placed if we go on continually increasing our neutral obligations, and making it impossible for any Government to carry out those obligations. For instance, in the case of the Sea King, on which so much stress was laid, it would have been impossible to have obtained information without bribing the servants or sending spies into every boarding-house in London. This country will next time be obliged to be a belligerent, because it will be her safest position, for to change the law of this country and be a spy in every house would be, of course, impos- 1901 sible. I have, in conclusion, only to state that I cannot allow the Motion to be withdrawn.
§ On Question? Resolved in the Negative.