§ EARL STANHOPEMy Lords, in putting the Question to my noble Friend the Secretary of State for Foreign Affairs, of which I have given Notice, I think that I do not claim any undue praise for noble Lords on this side of the House, if I say that on this matter they have shown the greatest caution and forbearance. It must have been a natural wish, when this controversy with the United States first arose, to put divers Questions on this subject, and more especially on the conduct of the negotiations at Washington—the more so, when we saw among us from day to day a noble Marquess (the Marquess of Ripon), who took the leading part in those negotiations, and whose explanations we desired to hear. But, my Lords, we felt it a paramount duty to say and do nothing that could in the slightest degree embarrass the negotiations which we understood to be in progress—we treated the matter in that spirit of calmness and conciliation with which we hoped the facts, when fully made known, would be considered not only by the Government but by the people of America. Thus far, then, I am justified in saying the greatest forberance has been shown on this side of the House; but we have now arrived at a critical period in the progress of this 1135 question. According to the terms of the Treaty, it is provided that the Counter Case of Great Britain should be presented at Geneva on the 15th of this month—that is, on Monday next. Close, then, as we are on the day stipulated in the Treaty, I think it can be considered no unreasonable wish to obtain from the noble Earl some distinct information as to the course which the Government will take on Monday next. Is it intended, in consequence of the unexpected demand of the Indirect Claims on the part of the United States, to omit or decline to present any Counter Case at all; or if a Counter Case is to be presented, will any mention be made in the course of it of the Indirect Claims; or will it be so stated that all discussion on them will be forborne? If a Counter Case is to be presented, would it not be desirable to know with what explanation, or under what reserve, the Counter Case is to be presented? There is one wish which I shall express, and in which I am sure I shall have the unanimous concurrence of your Lordships—namely, that whatever we may do, we shall do it most clearly and distinctly—without the least ambiguity, without the smallest loophole for misunderstandings in future, such as in the past have unhappily occurred. With these few remarks, I now beg leave to address to my noble Friend the inquiry of which I have given Notice—and I hope he will be able to satisfy that great interest which is felt in the matter both by this House and the country. The Question is, What course Her Majesty's Government have resolved to pursue in respect to the Counter Case of the British Government in the matter of the "Alabama" Claims, which Counter Case according to the stipulations of the Treaty of Washington would be presented at Geneva on the 15th of this month?
§ EARL GRANVILLEMy Lords, the noble Earl (Earl Stanhope) has prefaced the Question of which he gave Notice by a few remarks which appeared to me eminently characteristic of that spirit which usually animates this House in discussions on international questions. I have very great pleasure in giving the House the best information I can in answer to the Question of my noble Friend. A similar Question was, indeed, put to me by the noble Earl below him (the Earl of Derby), before the House rose for the Easter Recess. The 1136 noble Earl, on that occasion, alluding to the fact that the time would expire on the 15th of this month when our Counter Case could be put in, also asked—as my noble Friend has just done—whether it was the intention of Her Majesty's Government to present a Counter Case? and also expressed a hope that if that were done, there would not be even an appearance of admission that the Indirect Claims were covered by the Treaty. I regretted not being then able to give an answer to the noble Earl; but it was impossible at that time to do so, because Her Majesty's Government had not then come to any decision on the matter. The decision we have come to was arrived at only on Friday last. We have most carefully considered not only the point raised by the noble Earl as to any admission of the Treaty covering Indirect Claims, but we have also considered whether our taking any step at all at this moment might not compromise the position we have assumed. We have come to the conclusion that we can safely do this without prejudice to that position—that is to say, that we can present a Counter Case, which I need hardly say deals exclusively with the direct claims. It will be accompanied by a Declaration to the Tribunal at Geneva, in which we state that the Counter Case is presented without prejudice to the position we have assumed in our correspondence with the United States, and in which we expressly reserve the rights of Her Majesty, should any difference which now exists as to the scope and intention of the reference to the Tribunal continue, until the 15th of June. My Lords, I may add that there have been some communications with the American Minister on this subject. It was his opinion a fortnight ago that a Counter Case could be presented without prejudice to our position; and he informed me at the end of last week that his Government had confirmed the opinion which he held. I forwarded to him the day before yesterday a copy of this Declaration with respect to the Counter Case. I have only to add that as soon as the Counter Case and the accompanying Declaration have been presented to the Tribunal, they will, as the two original Cases were presented to Parliament, be in the same manner laid on your Lordships' Table.
§ EARL RUSSELLI have no wish to enter into a discussion as to the course 1137 which Her Majesty's Ministers have taken; but I do wish that Parliament and the country may have some escape from the fog in which they are now involved with regard to the negotiations. I think it is quite time the anxiety of the nation should be relieved, and that we may have information one way or the other as to whether the Indirect Claims of the Americans are to be heard before the Tribunal of Geneva; whether they are to be read and reserved for consideration at some future time—which I think would be the worst possible course to be adopted; or whether Her Majesty's Government mean not to enter at all at Geneva into a discussion of those claims, and will refuse to appear before that Tribunal to argue the case until those Indirect Claims have been withdrawn. I, therefore, give Notice that on Monday, the 22nd instant, I shall move a humble Address to the Crown, asking that Her Majesty may be graciously pleased to give instructions that all proceedings on behalf of Her Majesty before the Arbitrators appointed to meet at Geneva, pursuant to the Treaty of Washington, be suspended until the claims included in the Case submitted on behalf of the United States, which are understood on the part of Her Majesty not to be within the province of the Arbitrators, be withdrawn.
§ THE DUKE OF RICHMONDMy Lords, I have only to add, after what has fallen from the noble Earl the Secretary for Foreign Affairs, that I think it would be very desirable there should be no doubt on this one point. I understand him to say that the Counter Case is to be accompanied by a Memorandum, and that in the event of the Indirect Claims not being withdrawn, it would be within the province of Her Majesty's Government to withdraw from the arbitration. The point, I think, we want to have distinctly decided is, whether in that event the Arbitrators can go on and decide behind our backs, notwithstanding the protest of Her Majesty's Government. I do not know whether I make myself clear.
§ EARL GRANVILLEI am not sure that I quite understand it.
§ THE DUKE OF RICHMONDI understand my noble Friend to say that we put in a Counter Case without prejudice; but that is only the view which my noble Friend takes, and I want to have it per- 1138 fectly understood that there shall be no possibility of the Arbitrators being able to say—"You have complied with the terms of the Treaty; you have put in a Counter Case; and, therefore, notwithstanding what you say as to your view of the matter, we go on with the arbitration—we decide behind your backs."
§ EARL GRANVILLEIt is quite impossible for me to answer as to what course any tribunal, however distinguished, may take, and I therefore cannot answer positively what line the Tribunal at Geneva may take; but, in reply to the hypothetical case put by the noble Duke, I must observe that whether we presented a Counter Case or not the Arbitrators might go on with the arbitration if they thought fit—though I should be surprised if they did so—when they meet.
§ LORD WESTBURYI think the Question put by the noble Duke is a very reasonable one, and one to which the Government ought to be prepared to give a more satisfactory answer. The difficulty is this—the reference contemplates a certain procedure. There is an original Case on either side, followed by a Counter Case by way of answer to the Case on the other side. If, therefore, we now present our Counter Case, the American Government may at once come in with their Counter Case, and then the pleadings contemplated before the Arbitrators will be complete, the issue will be raised, and the Arbitrators may then be required, as being seized of the whole matter, to go on. I am not expressing an opinion as to whether that is so or not; but I endeavour to give that species of technical expression to the view which I think the noble Duke expressed, but which the noble Earl has failed to apprehend. I cannot say as a lawyer whether that will be so; but it is a thing gravely to be feared, and much to be guarded against. When you protest against the jurisdiction of a Judge, you do not permit him to clothe himself with the full extent of his jurisdiction; and it is most inconvenient, and may be pregnant with the most evil consequences, to take any step in the meanwhile, until the question of the extent of jurisdiction is finally decided.
§ EARL GRANVILLEI thought I had distinctly stated, in answer to the noble Earl opposite (Earl Stanhope), that the point was one which had engaged the de- 1139 liberate attention of the Government. We considered for a considerable period whether or not, by taking any step in presenting a Counter Case, we at all prejudiced the position which we had assumed with regard to the scope and intention of the reference to arbitration; and the conclusion the Government have come to, under very good advice, is that, accompanied by a Declaration of the kind I have indicated, our position will not be prejudiced or compromised. Moreover, that conclusion is strengthened by the fact that the other party to the arbitration, the American Government, acquiesce in the course we have taken.
EARL GREYI cannot help expressing my great regret that on this occasion my noble Friend, on behalf of the Government, has not favoured us with a somewhat fuller statement as to the course which the Government are taking on this subject. While I believed—in common, I think, with most of your Lordships—that the terms of the answer given by my noble Friend before the Recess might with advantage have been more explicit, I at that time understood, if I did not approve, the reasons for the great reserve which he displayed. I cannot, however, now understand any reasons for such reserve; and I believe that both your Lordships and the country would have felt a great relief from serious anxiety, if my noble Friend had told us, in plain and distinct language, that it was the firm purpose of Her Majesty's Government under no circumstances to consent to allow the arbitration to proceed until the Indirect Claims had been positively and authoritatively withdrawn. That statement I do think we had a right to expect to-night. It was a statement which might have been advantageously made in answer to the Question of the noble Earl (the Earl of Derby) before the Recess, but which now, I think, it is most urgently necessary we should have. No such assurance having been given, and not being at all certain that a step has not been taken which may allow the arbitration to go on, although the Indirect Claims are still persisted in, I confess I am not surprised that my noble Friend at the Table (Earl Russell) has thought it necessary to give the Notice we have just heard, in order that this question may be brought properly before us.
§ THE MARQUESS OF SALISBURYI am afraid the Government have lost the last chance they possessed of protesting against a judgment on these Indirect Claims. Her Majesty's Government appear to have reserved to themselves the power of protesting against any judgment which the Arbitrators may give involving these Indirect Claims; but are you quite certain that the Arbitrators will give you a chance of distinguishing between the Direct and Indirect Claims? The Counter Case having been presented, the Arbitrators may give their decision with a lump sum made up by both classes of claims, but not making any distinction between the two classes, and therefore depriving Her Majesty's Government of the power of availing themselves of the reservation, on the faith of which they say they have now consented to take a step in the case, and so suffer the arbitration to go forward. I must add that, like the noble Earl on the cross-benches (Earl Grey), I also regret much that this opportunity was not taken of stating more fully the course which Her Majesty's Government have taken.
§ LORD PENZANCEI concur with my noble and learned Friend (Lord Westbury), that in matters of jurisdiction great care must be taken that those who wish ultimately to decline to accept the jurisdiction at all, should protect themselves in the steps they take in the earlier part of the proceedings. In presenting the Counter Case, therefore, great care is requisite on the part of Her Majesty's Government, so that, when the time comes for a final answer from the American Government with regard to the Indirect Claims, we should then be in a position to withdraw from the arbitration. Now, from what has been said by my noble Friend the Secretary of State, I gather that sufficient care has been taken to ensure that object. What I understand to have occurred is, that a Counter Case has been lodged with the Tribunal at Geneva for the purposes of the arbitration; but that that Counter Case has, with the knowledge and consent of both parties to the arbitration, been lodged subject to the condition—the express condition—that Her Majesty's Government shall be in a position, when the proper time comes, to withdraw from the arbitration if the Indirect Claims should be still persisted in. Al- 1141 though, therefore, a step has been taken in accordance with the provisions of the Treaty by lodging the Counter Case, it has been lodged under a protest and accompanied by a condition. If that condition be not fulfilled, Her Majesty's Government will be in a position, when the time comes, to take any course they think it right to take with regard to the arbitration. The remarks of the noble Marquess (the Marquess of Salisbury) would be fair enough, supposing the Protest or Declaration with which the Government have accompanied the Counter Case was merely a protest against any decision by the Tribunal of Geneva upon the subject of the Indirect Claims. But I understand the nature of the protest to be this—that if, when the time comes, Her Majesty's Government and the American Government shall not have agreed what are the subjects of reference, then, under their protest, Her Majesty's Government will be entitled to retire not only from the discussion of the Indirect Claims, but from the arbitration altogether. When the Counter Case is before the House we shall be able to discuss the matter more fully. At present I can hardly see that the step taken by Her Majesty's Government involves us in the consequences which have been mentioned.
§ THE DUKE OF SOMERSETI think the honour of the country may be seriously involved by the course taken by the Government in this matter. The plain and straightforward course would have been to say—"We cannot present our Counter Case until the Indirect Claims have been withdrawn." That is the clear, manly, straightforward course; but when we put in a Counter Case, with a note or protest, we must remember that this note may be thrown aside and the arbitration may proceed. The intention of the country was to decline to put in the Counter Case until the Indirect Claims had been withdrawn, and that ought to have been the intention of the Government. I confess I have heard with great regret the course pursued by the Government on this question, and I fear it will involve us in further complications upon this unfortunate controversy.
LORD DENMANsaid, he had been employed for 12 years in drawing up terms of arbitration in the Court of Queen's Bench, and he was quite certain 1142 that no officer in their Courts would have drawn up such an order of reference as this Treaty had given them a sample of.
§ LORD COLONSAYunderstood from the Secretary of State that the Counter Case and Declaration connected with it were to be laid before the House. He wished to know, whether they would be distributed in time for consideration by their Lordships before the Motion of the noble Earl (Earl Russell) came on?
§ EARL GRANVILLECertainly.
§ House adjourned at half-past Six o'clock, to Monday next, a quarter before Five o'clock.