HL Deb 03 June 1872 vol 211 cc989-96

THE SUPPLEMENTAL ARTICLE.

OBSERVATIONS.

EARL GRANVILLE

My Lords, although the time is past for reading the Orders of the Day, I am sure your Lordships will excuse me if I say something with reference to a conversation which took place at our last meeting with regard to the negotiations between this country and the United States. At that time I certainly was in the hope—or possibly under the apprehension—that I should be in a position to give your Lordships a final statement on the subject either to-night or in the beginning of the week. My Lords, this is not the ease. Communications are still continuing. We have arrived at no final result; and the only fact of any importance I can give to your Lordships is one of which I believe your Lordships are already aware—namely, that Sir Edward Thornton has informed us that Congress has postponed its adjournment to this day week. Without knowing the reasons, I think we have a right to infer that this evinces a desire to remove obstacles to some possible arrangement. As to that possible arrangement I can give your Lordships no assurance whatever. In this position of affairs my lips are as much sealed as they were the other day, except as to some misapprehensions which evidently were in the minds of some of your Lordships on Friday last; and I have obtained the sanction of my Colleagues to make an explanation in regard to those points which do not involve in any way and will not complicate the negotiations now going on. I understood the noble Earl on the cross-benches (Earl Grey) to state that the declaration I made just before the Whitsuntide Recess had allayed the anxiety of the public.

EARL GREY

No—I referred to the speech of my noble Friend on the Address.

EARL GRANVILLE

I certainly misunderstood my noble Friend. I may be allowed to state publicly what I have already said to him in private, that I was hardly ever more gratified than I was by a short letter which I received from the noble Earl at the Table (Earl Russell) after the Supplementary Article had been published, couched in terms of his old and usual kindness to me, and expressing his satisfaction at what had been done. It appears that since that time certain things have happened which some of your Lordships think have tended to weaken what confidence you might have had in the course which the Government would take. These facts were of a different character. One was the publication of certain Papers which we had refused to the House, and which, though of a confidential character, were published in the United States. I can say for myself that, for obvious reasons, no one regretted more than I did the publication of those Papers; but in regard to it I heard afterwards that some of your Lordships believed that publication to be an act of the United States Government. Now, Sir Edward Thornton had informed me that those Papers were obtained surreptitiously by one of the New York newspapers; and the United States Minister, General Schenck, has since informed me that he believed they were not published with the privity or sanction of the President, the Senate, or the Secretary of State, but that the publication was due to the "enterprise"—he prefers to use no stronger term—of the proprietor or editor of a New York paper. Another point was that by that publication your Lordships were made aware of the Article which Her Majesty's Government had stated their willingness to adopt. Some of your Lordships thought the Article was weak in itself, and you were much alarmed lest it had been further modified and weakened by the United States Government; and you felt some apprehension that Her Majesty's Government would make some compromise, and would yield to an Article of a less sufficient character. Now, with regard to that Article, the noble and learned Lord behind me (Lord Westbury), in some observations which I am sure your Lordships will not have forgotten, advised me to consult our professional Advisers on questions connected with it. My Lords, we were in full pos session of the opinion of our professional Advisers; but I thought out of abundant caution I would submit exactly the words of the noble and learned Lord to the Law Officers; and I can only state that the opinion of the Attorney General, the Solicitor General, and Dr. Deane, entirely concurred in not only by my noble and learned Friend on the Woolsack but by Sir Roundell Palmer, our counsel in the case, is entirely satisfactory to Her Majesty's Government.

LORD CAIRNS

What is satisfactory to the Government?

EARL GRANVILLE

Their opinion. Then with regard to Her Majesty's Government being in danger of agreeing to some compromise that would further weaken the Supplementary Article, the public is under a misapprehension as to that part of the case. With regard to the operative part of the Article, so far as it has to do with the Indirect Claims, the American Government have not in the slightest degree proposed or endeavoured to modify that operative clause, and we have no reason to believe there is any difference of opinion between that Government and our own on that point. The noble and learned Lord opposite (Lord Cairns) observed with regard to the correspondence which has been surreptitiously published—and I am not surprised at his being struck with the circumstance—that there are passages in that correspondence which show that Mr. Fish maintains the existence of the Indirect Claims before the Tribunal. Though it is not quite regular, I will ask your Lordships to read a record which I have made, and which I have shown to General Schenck, and which has been approved by him, of a conversation I had with him in consequence of what was thrown out by the noble and learned Lord— I have spoken to General Schenck as to the annoyance which has been felt in and out of Parliament at the publication in the United States of the papers submitted to the Senate in their Secret Session. I told him that, for obvious reasons, I much regretted it, but that I believed that it was no act of the Government of the United States. Sir E. Thornton had informed me that these papers had been surreptitiously obtained. General Schenck told me that he believed that the Government of the United States had not, through any of its Departments—the President, the Senate, or the Secretary of State—been a party to the publication of that correspondence. It appeared to have got out surreptitiously through the enterprise (if it may be called by so innocent a name) of the newspapers. I have also spoken to General Schenck, and alluded to the unfavourable impression which has been created by certain passages in that correspondence, wherein Mr. Fish declares the determination of the President to maintain the Indirect Claims before the Tribunal of Geneva. I told General Schenck that from the various conversations which I have held with him, and from his written communications, I have been led to believe that the position of the United States was this:— The President held that the Indirect Claims were admissible under the Treaty; that the Treaty was made and ratified in that sense; and that, therefore, although he might by interchange of notes or otherwise agree not to press for compensation for those claims, yet, as being within the scope of the Treaty, it was not in his power to withdraw them—that could only be done by the exercise of the full Treaty-making Power, including the concurrence of the Senate; that it was for this purpose that the President preferred, instead of an interchange of notes, that Her Majesty's Government should adopt a Supplementary Article, which for some sufficient consideration might enable the Government of the United States to declare that they would make no claim for such losses, and that the Arbitrators would thereby be prevented from entertaining these Indirect Claims. General Schenck informed me that he agreed with me in my construction of what had passed, and I have submitted to him this report of our conversation. I trust, as far as that goes, my explanation may be satisfactory to your Lordships. The point of difference which now exists between the two Governments is not with regard to the operative clause of this Supplementary Article, but with regard to the exact extent of the engagement by which both parties bind themselves for the future. That being the point of difference, I do not know whether we shall come to an understanding or not; but I see no reason why we should not. I am aware there are some difficulties at this moment as to the forms of procedure; but I am advised that, supposing we come to a substantial agreement on the subject, those difficulties may be overcome. With regard to the declaration with which I certainly understood my noble Friend (Earl Grey), for once in his life, to be satisfied, what I have to say is that Her Majesty's Government from the very first day we met determined it was impossible that these Indirect Claims should be submitted for arbitration. I adhere to that declaration, and I am willing to repeat it in any form your Lordships may desire.

EARL RUSSELL

My Lords, with regard to the Notice which I put on the Paper for to-morrow—namely, that an Address be presented to Her Majesty praying Her Majesty to give instructions that all proceedings on behalf of Her Majesty before the Arbitrators be suspended till the Indirect Claims have been withdrawn—I must say it appears to me that we have come to a stage in these discussions when it is necessary that the words used should not only be enough to satisfy the Law Officers, whether on this or the other side of the Atlantic, but should be clear and open to but one interpretation. It is with that impression on my mind I must say that, though I was originally satisfied with what I saw in the papers as to the terms of the Supplemental Article, yet I found afterwards by the correspondence published in the The New York Herald that I had misunderstood that Article—that it could be taken in a different sense from that which I at first supposed it to bear, and that it would not be satisfactory in the way in which it was understood. I was also convinced by those letters addressed by the Secretary of State for the United States to the Minister of his Government in London that there were ways of evading the apparent sense of that Article. Any one of the Arbitrators might say—"There are on the table certain Indirect Claims, of which the Arbitrators are in possession, and of which they have been declared to be in possession by the accredited organ of the United States Government, and it is necessary we should take those Claims into consideration, together with all that is contained in the Case of the United States." This is a danger so great that it appears to me nothing but an explicit declaration that those Claims are withdrawn can be satisfactory. It appears to me that if the proposal of my noble Friend can be adopted by Treaty, there is no reason why a new Treaty should not be framed; and in that Treaty it should be expressly provided that none of these Indirect Claims, which are sufficiently defined by Mr. Fish and my noble Friend, should be produced before the Arbitrators. Having this impression on my mind, I shall certainly proceed with my Motion to-morrow and take the sense of the House on it.

EARL GRANVILLE

I wish to ask my noble Friend whether he will proceed with the Motion which he placed on the Paper before the Recess, or one for Correspondence, of which he gave me Notice by letter this afternoon?

EARL RUSSELL

I shall proceed with the Motion which I placed on the Paper before the Recess.

LORD CAIRNS

My Lords, I cannot help thinking that the course taken by Her Majesty's Government on this very important question is somewhat unusual and very inconvenient. Up to the present time the language held by the noble Earl opposite has been this—he has deprecated in the strongest way any discussion on the subject of the negotiations between Her Majesty's Government and the Government of the United States; he has deprecated any reference to the points in dispute, and, indeed, to any specification of what the points in dispute were. Nay, more—on Friday evening, when the noble Earl was requested to lay on the Table the text of the Supplemental Article which he had proposed to the United States Government, he declined to do so, although—if I am not misinformed—the ordinary sources of information—the journals of the metropolis, one or more of them, had received copies of that Article, and had stated that they had received them from the Foreign Office. It seems strange, if that be so, that your Lordships should not be allowed to have on your Table the text of the Supplemental Article which had been so dealt with. But a further move has been made this evening. The noble Earl (Earl Granville) comes down to your Lordships' House, and no doubt anxious to give every information in his power, he has gone beyond anything he did up to this time. He has not only referred to the Supplemental Article, but he has stated the points of difference in respect to it, and has endeavoured to calm your Lordships' apprehensions by the statement that the Law Officers of the Crown have given an Opinion which is perfectly satisfactory to Her Majesty's Government. I am at a loss to conceive what was satisfactory. I asked him whether it was the Opinion? and he said it was. I have no doubt the Opinion is satisfactory to the Government. What, however, we want to know is, not whether the Opinion of the Law Officers is satisfactory to Her Majesty's Government, but whether the terms of the Article under negotiation are satisfactory to the people of this country. Then the noble Earl goes further. He reads an extract from a despatch recounting the statements made in a conversation between him and General Shenck—statements which relate to the construction of a document which the noble Earl will not allow us to see. That being the state of things, I think the time is come when we should no longer hear comments made by the noble Earl on his view of what the Article is, but when we should he free to look for ourselves and express for ourselves our view on the propriety and expediency of that Article. I, for one, do not scruple to say that I look on the Article in the form proposed as so unsatisfactory and so pregnant with elements of danger, and so inconvenient in the future, that a source to me of the greatest alarm is the probability of that Article being adopted in the form proposed by the noble Earl. The sooner we discuss that question the better; and I rejoice that the noble Earl (Earl Russell), by persevering with his Motion to-morrow night, will give us an opportunity of expressing freely and openly what is our opinion of the Article. That must be decided, not by statements as to what the Opinion of the Law Officers is, but by the common sense construction to be put on such English words as occur in the Article—for all the words in it are not English—and therefore I rejoice at the opportunity which the noble Earl will afford us.

LORD WESTBURY

I want to point out a misapprehension on the part of the noble Earl (Earl Granville). I do not want the Opinion of the Law Officers; but I should like to see the Case. I will not stop now to point out how entirely the noble Earl—from my fault, no doubt—has misapprehended the difficulties which presented themselves to my mind; but, as he now seems to be desirous of sheltering himself under the Law Officers, I should like to have an opportunity of seeing how far the shield is likely to be an effectual protection. I do not want to see the Opinion, I want to see the Case.

EARL GRANVILLE

My Lords, the noble and learned Lord opposite (Lord Cairns) says there is something unusual in the course I have taken; but I do not think I am at all to blame in the matter. Your Lordships will see that I am placed in great difficulty. I doubt whether in any foreign affair, or in any great international question, any Minister was ever more cross-examined than I have been in this, notwithstanding my statements that in the opinion of Her Majesty's Government it was impossible to give the explanations required. I say this while acknowledging that the general forbearance of the House has been remarkable. I think—if as a layman I maybe allowed to say so—there is the greatest inconvenience during diplomatic negotiations in the utterance of extra-judicial opinions by noble and leaned Lords of great weight, and which opinions neither the people of this country or the people of America understand to be very different from judgments given in a different way. In the speech of the noble and learned Lord opposite (Lord Cairns)—his speech of last year, which augmented his fame to a considerable degree—he gave an opinion as to the construction of a particular Article in the Treaty; but I beg to remind your Lordships of the circumstance of the case. After a challenge by the noble Earl, I stated what was my view of the construction of the Treaty. I think that statement, coming from the Minister of the Crown who was responsible for the Treaty just concluded, was one of considerable weight and authority. I went on, yielding to the temptation to which we all too often yield, and made a sort of ad hominem attack on the noble Earl opposite, the late Secretary for Foreign Affairs. I said his Treaty did not exclude the Indirect Claims. What happened then? The noble and learned Lord got up and said he entirely agreed with me.

LORD CAIRNS

No, no.

EARL GRANVILLE

The report may be wrong. If I am not mistaken, I stated that the Stanley-Johnson Treaty did not exclude those Claims, but ours did. Thereupon the noble and learned Lord said that ours did not exclude them any more than than the Stanley-Johnson Treaty. I believe we were both wrong. But if the Stanley-Johnson Treaty did exclude them, it was no depreciation of our Treaty to say that it did not exclude them more than the former Treaty had. But if he meant that he condemned them both alike, when the noble and learned Lord says that we seek to shelter ourselves under the professional advice of the Law Officers, I do not consider it a reproach when we avail ourselves of the advice of the professional advisers of the Crown. I must repeat that those extra-judicial opinions appear to me to be of no value', and should not be expressed when they can lead to no practical result. If the noble and learned Lord (Lord Westbury) wishes to bring forward his opinions in the shape of a deliberate Vote of Censure let him do so. Her Majesty's Government must deal with that in the best way they can.