§ MOTION FOR AN ADDRESS TO HER MAJESTY.
§ EARL RUSSELL
My Lords, I am about to move an important Address which has been for some time on the Notice Paper, but which I have often 1096 postponed and not brought under your consideration. I suppose no one of your Lordships will doubt that this House, as one branch of the great Council of the nation, is fully justified when sufficient cause has arisen to address Her Majesty on any subject. With respect to the general right I maintain there can be no doubt. There is only one thing further which I wish to say by way preface, and that is—that I conceive this kingdom is fully equal to any nation in the world, and that in all matters of negotiation we have no reason to yield to the United States of America or to any other country. And now, my Lords, to come to the reasons which I think justify me in bringing before your Lordships this very urgent question. Your Lordships will recollect that within a few days of 12 months ago I brought under your Lordships' consideration the question of the ratification of the Treaty of Washington. That Treaty was the result of a Commission sent across the Atlantic with great "pomp, pride, and circumstance;" but, unfortunately, it was composed of Commissioners not equal to the persons with whom they had to negotiate. In a speech made now nearly a century ago—in 1775—Mr. Burke remarked that the educated men of America are particularly versed in the science of law, and that this study renders men acute, makes them ready with all kinds of arguments, prompt in reply to objections, always ingenious in proposing the schemes which they desire to carry out. Unhappily, I say, those persons whom we sent on that Commission across the Atlantic were not equal in these respects to those with whom they had to deal. Accordingly, when the Treaty came home and was brought under consideration in this House, there were various defects to be found in it, and various doubts were raised upon it. A noble and learned Lord opposite (Lord Cairns) pointed out that what are called the Indirect Claims could be put forward under it as well as under the Convention signed by the noble Earl opposite (the Earl of Derby) with Mr. Reverdy Johnson. What was the course taken on that occasion? The noble Earl the Secretary for Foreign Affairs stated that these Indirect Claims, which were of a very extraordinary nature, had entirely disappeared, and that by no chance could there be any question of them under the Treaty. 1097 Afterwards, in Her Speech from the Throne, Her Majesty was advised to declare these Claims were understood, on her part, not to be included in the Treaty. Notwithstanding, we had a speech from the First Lord of the Treasury, full of argument, full of illustration, and of rhetorical invective. Beyond that there has been a letter published by Mr. Reverdy Johnson, who had been engaged in the negotiation of the previous Treaty. The argument of Mr. Reverdy Johnson is a very able one, and together with the declaration of the noble Earl the Secretary of State and the speech of the First Lord of the Treasury appeared to be very convincing, and to be sufficient to show that, there being no express rule to the contrary, this Treaty ought, as Mr. Reverdy Johnson says, to follow the course of precedent, and particularly the precedent of what is known as the Jay Treaty, which was negotiated in 1794 at the request of Lord Grenville, and was approved by the President, General Washington—one of the greatest men who have lived in modern times. It was also negotiated under the auspices of Mr. Jefferson, a most able man, who was then Secretary of State to the United States. On questions of this kind there could be no greater authority than those whom I have named. But, unhappily, in spite of all this, and in spite of what has been declared by my noble Friend the Foreign Secretary, in spite of all precedent in Treaties, the American Government put forth in their Case which is to be submitted to the Arbitrators at Geneva a series of Claims which seem to me even now almost incredible. They ask compensation not only for the Direct Losses occasioned by the action of insurgent cruisers, and for the national expenditure occasioned since the commencement of the war in pursuit of these vessels, and the loss of trade and commerce they ask, moreover, an indemnity for the prolongation of the war, and the addition of a large sum to the cost of the war, which they said had been continued by the captures at sea made by the Alabama and other ships. Hence arose what are now called the Indirect Claims But Mr. Reverdy Johnson has shown in his pamphlet that the war by sea was of small importance, and that after the Battle of Gettysburg, when, according to the American Case, the war on land 1098 had ceased, there were battles in which hundreds of thousands of citizens of the United States were killed or wounded. It is too much, therefore, to pretend that the war had virtually ceased at that time, and that it was prolonged only by the exertions of a few privateers; that appears to me to be utterly absurd. But then I should have thought that when Her Majesty's Government had declared so positively that these Indirect Claims were no part of the Treaty, and when Her Majesty had sanctioned that declaration in Her Gracious Speech from the Throne, there could be no doubt whatever that the Government would be completely justified in declaring that they would not negotiate on the basis of a Treaty to which they were not parties; that they never had agreed to the Treaty in the sense it was understood by the Government at Washington, and that therefore they could not go on with the Arbitration. It seems to me to be perfectly clear that to enter into negotiations to carry into effect a Treaty, to the making of which they were not parties, is something so extravagant that it could not for a moment be admitted. I think, therefore, the noble Earl the Foreign Secretary would have acted quite right in writing a short note asking that these Claims should be erased. I cannot very well conceive that a great Power such as Great Britain should persist in saying that it was not a party to the Treaty, while another Power persists in saying that Great Britain was a party to it. It appears to me that it would be more consonant to the amity of nations, and more consonant with the good faith of nations, to make such a declaration once for all, and act upon it without delay, without doubt or equivocation. But that was not the course which Her Majesty's Ministers pursued. Strange to say, we are now in the month of June—the same month in which last year the Treaty was brought forward here, and its ratification was considered—and we are now in the same state of doubt and uncertainty as we were when these questions were originally raised. Two reasons were urged against my persisting with the Motion which I then made, asking Her Majesty not to ratify the Treaty. It was said that the negotiations had gone too far, and the Commissioners had acted too precisely in pursuance of their powers to make it right for this House to ad- 1099 dress Her Majesty to uphold her ratification without exciting much irritation and hostile feeling in the United States. When, therefore, I heard those reasons, and the noble and learned Lord (Lord Cairns), and the noble Earl opposite (the Earl of Derby), expressed a wish that I would not divide, I willingly agreed not to do so. The Treaty was ratified, and I conceive that it is your Lordships' duty, and that of every subject of Her Majesty, to endeavour to carry that ratified Treaty into effect, consistently with the honour of the Crown and consistently with the real meaning of the stipulations which it contains. That is undoubted; but it is an equally undoubted fact that we are not bound, and no party in England is bound, to comply with these Indirect Claims, these being Claims made without foundation or justification, and which the Secretary for Foreign Affairs declared, and which Her Majesty afterwards declared, were no part of the Treaty. My Lords, the Government of the United States did not concur in that view. They argued that these Indirect Claims were clearly part of the Treaty. Your Lordships will recollect that in the Correspondence on the subject, which has already been laid before Parliament, the arguments on both sides are urged with great force; and I confess that I agree with my noble Friend the Secretary of State for Foreign Affairs, and I agree with Mr. Reverdy Johnson, that the only fair interpretation of the Treaty is to leave out the Indirect Claims, and to understand the Treaty as if they did not belong to it. Well, my Lords, there has been other Correspondence—Correspondence not laid before Parliament, but which has nevertheless, so recently been laid before the public that I may refer to it—in which it is argued over and over again by Mr. Fish, who is confirmed by General Schenck, the American Convoy at Her Majesty's Court, that the Indirect Claims having been laid before the Arbitrators at Geneva, and having formed part of the Case that was officially placed before them, cannot be withdrawn; that the Case so stated is in possession of the Arbitrators, and must form part of the Case when they meet together again at Geneva. I confess it appears to me that that interpretation is extravagant and absurd. But if that is the case—since Her Majesty's Government 1100 cannot be called on to assist at the Arbitration when the Case put forward by the other side is not contained in the Treaty—I ask what is their course to pursue? I confess it appears to me not to be doubtful. The British authorities—Her Majesty herself, Her Secretary of State, every person belonging to the Cabinet, and I may say the great majority of the whole nation—have stated that these Claims form no part of the Treaty; and a public man who certainly is not inspired by any antipathy to the United States has given his opinion that Great Britain will never pay a farthing of the damages required on that ground. It appears to me that the United States have said—and they are not apt to flinch from any Claim they think it right to put forward—they have said they will go to the Arbitrators with these Indirect Claims contained in the document now before the Arbitrators. Her Majesty's servants would say as firmly and decidedy—"We shall never attend at Geneva, or before a tribunal to which these Indirect Claims are presented." Let your Lordships consider what would happen if they were to take the course of appearing before the Tribunal of Arbitration. It would be in the power of any of the Arbitrators—the Swiss Arbitrator or the Brazilian Arbitrator—to say—"These Claims with regard to the Alabama, asking for compensation for direct losses, are not the whole of the Claims laid before the Tribunal; there are Claims for the prolongation of the war, and various other Claims made by the United States, and I ask you to consider these Claims." Well, my Lords, it appears to me Her Majesty's representative would be placed in a very unfit and a very ignominious position if he found himself before a tribunal which insisted on taking these Claims into consideration. I am told there is some ingenious project in agitation; that the First Minister of the Crown, with the great abilities for which he is distinguished, is going to frame some scheme by which these Indirect Claims would be withdrawn, and yet not withdrawn—not to be brought into consideration and, at the same time, form the subject of numerous debates—consigned to eternal silence, and yet be kept to the memory of all future generations. Such a contradiction may be reconciled by the extreme ingenuity of the person who is 1101 supposed to be the author of the project to which I am referring; but, for my part, I think it is not becoming the dignity of this or the other House of Parliament to listen to such logical refinements. It is our duty to speak plainly. The honour of our Government requires that we should speak in clear language, and say that until these Claims are withdrawn no representative of Her Majesty shall appear at Geneva. My Lords, there has been a great deal of mystery made—a great deal of needless mystery, as I think—with regard to the production of these Claims. We have been told that Parliament—this House and the House of Commons—must not be trusted with this secret, as it has not been laid before the Senate of the United States. My Lords, I think it was in November or December last year that I met in the South of France a gentleman much experienced in diplomacy. I stated to him that I hoped there was no truth in the report I had read in one of the English papers of the extravagant nature of the Claims—which might amount not only to millions, but to hundreds of millions—laid before the Arbitrators at Geneva, and that the Claims were not real. My friend immediately said—"You are quite wrong in that supposition, because in the Journal de Généve—a paper as much read as any on the Continent of Europe—the whole Case of the United States is put forth at length, and there is no extravagance you could mention which is not set forth in the printed report of that Case." My Lords, to debar the Houses of Parliament and debar the British nation from knowing what these claims were while they were paraded over Europe is an amount of prudency which I cannot understand. Well, then, may I now ask what followed from such a course? Every sort of logical subtlety, every sort of metaphysical refinement. But if we had said plainly—"We will not negotiate on the grounds of a Treaty to which we never were parties; we shall only agree to an Arbitration founded on what we knowingly, persistently, and will fully agreed to"—I believe if we acted in that way the United States would give us credit for more sense than they now suppose us to possess. They would say that, as we had not been caught—as we had not chosen to fall into the trap—the 1102 matter must be arranged in another manner. Recollect, my Lords, that we are not asking something of America. We are not complaining that we have been wronged and asking for a large reparation in the shape of a money compensation. On the contrary, it is they who are coming to us and asking for a redress of wrongs; and we who are replying—"Let us have an examination of the case, and if we are wrong we shall cheerfully pay an indemnity." I remember a case in which is not of very old date; I spoke to one of the actors in it only very recently—I allude to the case of the Southern Commissioners who were taken out of the Trent, a British packet. That Trent case occurred when Lord Palmerston was Prime Minister. A representation was made to the Government of the day, and they considered the matter very fully, though they did not deliberate very long. Lord Palmerston said that before a demand was made that the Commissioners should be delivered into the custody of the British Government, the opinion of the Law Officers must be taken—though for himself he was of opinion that a demand of that nature should be made. The opinion of the Law Officers confirmed that of the Government—that the Commissioners had been wrongfully taken out of an English ship, and that the American Government was bound to hand them over to the custody of the British Government. Lord Palmerston took all the proper measures, and I, being Foreign Secretary, wrote a despatch—as civil a one as I could—on the subject. That despatch having been revised by the Prince Consort, was sent to our Minister, Lord Lyons, who was directed to convoy an intimation that if immediate redress were not given the matter might assume a very serious aspect. Well, as your Lordships know, in the course of two or three days the Commissioners were allowed to come back. A short time ago I had an opportunity of meeting my old Friend Lord Lyons, and I asked him whether, in consequence of our action in the Trent case, he had found himself treated with bitterness or with more distance or reserve at Washington. He told me it had been quite the contrary—that there might have been some bitterness at first, but that in consequence of the former course we had followed the Americans respected us very 1103 much more than they had before, and that the manner of the American Government had become more friendly to him than it had been before. Now, my Lords, my opinion is there is one thing American statesmen and the American nation do respect and do like, and it is that quality which in vulgar English is called "pluck." When they see that quality exhibited by the English people they respect and like us much more than they would if they saw anything on our part like a pusillanimous submission to unjust demands. I think, if they refuse to withdraw these Indirect Claims, and we refuse to go on with the Arbitration unless they are withdrawn, the result will be that no proceeding will be taken on this Treaty. The Correspondence which is stated to have come to light surreptitiously, but which I believe to be genuine for all that, shows that the two parties to the Washington Treaty are as wide asunder as the poles—Why not acknowledge the fact? Why not acknowledge that what we desire is in direct contradiction to what the American Government desires? That being so, if it were at once acknowledged, the present Treaty would lapse; but a time would probably arrive when the United States' Government would permit itself to be governed by those maxims which have guided the Governments of all other nations in corresponding circumstances, and which, even in recent as well as in past times, have guided American statesmen—such as guided Lord Grenville and General Washington in 1794, such as guided the noble Earl opposite (the Earl of Derby) and Mr. Reverdy Johnson when they were framing their Treaty, and as subsequently influenced the Earl of Clarendon when at the Foreign Office. My Lords, I agree with Mr. Reverdy Johnson that for the prolongation of the war we could under no circumstances be made answerable; but there is the question whether in respect of the Alabama and certain other vessels there was any negligence, any want of due diligence on the part of those who had the conduct of our affairs during the American War. My Lords, this question is not quite new to me; because Mr. Seward, the Secretary of State during the war, interrogated me as to whether I was prepared to refer the matter to Arbitration. I took no notice of that proposal at the time; but 1104 some time afterwards I informed Mr. Adams that it did not appear to me that that proposal would be acceptable to Her Majesty's Government. I had consulted Lord Palmerston previously to making that reply to Mr. Seward. There were two objections to the proposition. One was that the Americans could scarcely have made their case without throwing imputations on the honour of the English statesmen who had examined into the case of these vessels. The next objection was that the opinions of the Law Officers might be set aside. My Lords, what I then foresaw distinctly was what has since come to pass. You find that the American Government heap imputations on the persons whose duty it was to make inquiries for Her Majestys's Government in respect of those vessels. They allege that, so far from acting with the bonâ fide view of discovering whether those ships were being fitted up as fighting ships to make war in favour of the Southern Confederacy, they carried their carelessness so far that it amounted to evil intent, and that they did not act impartially. Now, my Lords, I do not think it consistent with the amity of two great nations that the Government of one should accuse the Prime Minister and the Secretary of State of the other of being so hypocritical and so unfair as to pretend to obtain opinions and evidence to convict persons engaged in an illegal proceeding, while in point of fact they were conniving at the illegal practices. That was one reason why I did not like the notion of Arbitration. Another reason was that I thought the opinion of the Law Officers would not be duly respected. Well, so far from respecting the opinion of the Law Officers, the negotiators of the Treaty of Washington have made new rules. Some of these are rather obscure—and one of them is particularly so. From this one, words have been left out which, in my opinion, ought to have be put into it. I will state what the omission is. In all authorities on the Law of Nations, and in all official documents of the Courts of Great Britain and those of America, it is stated that in the case of ships, such as those of which the United States complain, there are two questions for those who would interfere with them. First, you have to consider whether the ships are being built with the view of being fitted out as ships of war; and the second 1105 question is, whether you have grounds for believing that when so fitted up they are to be employed in warlike operations against an ally. Now, in a new rule contained in this Treaty the first consideration is inserted; but the second, whether the vessel is being fitted up, the words "with the intention of making war on a friend or ally" are omitted. It is said that a great authority—I believe Sir Roundell Palmer—is of opinion that the rule is sufficiently explicit, and that notwithstanding the omission of these words the meaning is clearly conveyed. But where there has been so much refinement, and such a different sense has been given to words from that which one would suppose them to bear, I think that there should have been no such omission in the new rule. Indeed, the very evils I foresaw when the proposal for Arbitration was made have occurred. My Lords, I believe they might have been guarded against. I believe our negotiators at Washington might have made the terms of the Treaty so clear that it would have been impossible to set up those Indirect Claims under them. But our Commissioners were not what Mr. Burke described the educated Americans of his time to be—they were not particularly versed in the science of law, that study which makes men inquisitive, makes them ready with all kinds of engagements, prompt in reply to objections, and always ingenious in proposing schemes—and, unhappily, they omitted to put in the Treaty of Washington plain, precise words which would have prevented any such misunderstanding as that which has arisen. My Lords, there is another topic—the last one with which I have to trouble your Lordships, but one which I must not omit to mention before I conclude what I have to say in introducing my Motion. It has reference to Canada. Your Lordships are aware that the Claim made by the Americans is for loss of property—the Americans complain that ships of which they were owners had been captured, and that they had lost much property in consequence—I do not think that the proceedings of the Alabama or of any other of the vessels resulted in bloodshed. It is not so, unhappily, in the case of Canada. There was a raid into that colony of which Sir John Macdonald speaks in a speech of four hours, delivered by him in the Canada House of 1106 Commons. He says that in the raid many Canadians lost their lives, and that there was a great destruction of property as well. He says he had been blamed for not having obtained reparation; for that American citizens had lost property, but they immediately went to their Government and obtained redress. I know how their Government acted, because the whole time this destruction of property continued I constantly received from Mr. Adams demands for compensation on account of loss of property in respect of which complaints had been sent in by American citizens. Sir John Macdonald says that knowing of these raids, and knowing of the loss of life and property incurred by means of them, and knowing that Canada could not obtain redress from the United States, he applied to the Government of Great Britain—he applied to his own Government, and asked them to demand from the Government of the United States some indemnity for the loss—to demand reparation to the families of persons who had been killed or who had suffered wounds in those hostilities. The American Government had listened favourably, and had listened faithfully, to the demands which the American citizens had made. But what did our own Government do? Nothing whatsoever. The statement comes with the authority of Sir John Macdonald, the Prime Minister of Canada. He complained of this as a great injustice; but that a Member of the Canadian Parliament, seeing the defect in the reference, said to him—"You cannot get redress from the Commissioners who are negotiating the Treaty, because the English Government has never referred this Case as one requiring redress, and, therefore, you cannot press your Claims." That being so, it has been said—I do not know on what authority—that when everything had been settled except the question of the Fenian raids the Government sent directions to our negotiators at Washington not to press the Claims put forward. Sir John Macdonald entirely disposes of that, because he says that the reason they were not pressed was they never had been referred at all; that the British Government never having asked in a formal manner for a recognition of those Claims, the Canadians were entirely out of court in consequence of that neglect. My Lords, I say 1107 that I feel humiliated at the negligence—the great negligence—which was shown in not urging those claims. I am of opinion that, as Sir John Macdonald says, we ought to consider Canada as the right arm of this Empire. Nothing can be more loyal, nothing more faithful, than the conduct of the Canadians. They ought to be met with a corresponding generosity. I do not think it would be wise to show an indifference to that great colonial possession. It is by treating all the various portions of the British dominions well—by acting faithfully in the interests of all, and not by armies and fleets, that we can bind together all parts of the Empire and make them loyal and affectionate to the Crown and the Government of the Empire. My Lords, it is with these sentiments, and trusting that by the interposition of this House this question may receive a fitting solution, and that on this and on every other occasion we may show a due regard to the honour and dignity of the Crown, I submit to your Lordships the Resolution of which I have given Notice.Moved, that an humble Address be presented to Her Majesty praying that Her Majesty will 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, and understood on the part of Her Majesty not to be within the province of the Arbitrators, have been withdrawn.—(The Earl Russell.)
§ EARL GRANVILLE
My Lords, I rise under a sense of grave responsibility involved in following the noble Earl who has just made this Motion of Want of Confidence in Her Majesty's Government. I think that the noble Earl has somewhat failed in explaining to your Lordships that which appears to me to be difficult to understand—namely, his proceeding with regard to this particular Motion. Your Lordships are aware that on two occasions, either spontaneously or at the advice of his Friends, the noble Earl postponed his Motion. He postponed it a third time, very kindly, in reply to an appeal which I made to him before the Whitsuntide holidays. After the Supplemental Article had appeared in the newspapers, as I stated to your Lordships yesterday, nothing ever gave me greater pleasure than to hear my 1108 noble Friend say that he approved the course I had taken; and he at the same time added some kind phrases of which I knew I was undeserving, but which I accepted with pleasure as a token of our long-continued friendship. I heard nothing more until 2 o'clock yesterday, when, in the course of a conversation which I then held with the noble Earl, he informed me that he did not intend to move a Vote of Censure upon the Government, but that he purposed confining his Motion to a request for the production of Correspondence. I was therefore astonished when, at 5 o'clock, three hours afterwards, he stated it was his intention to proceed with his Motion as it appeared on the Notice Paper. It is true that he gave as his reason for adopting that course the publication of the Correspondence surreptitiously communicated to the New York paper. Now, my Lords, the noble Earl during the whole of his speech has, with regard to recent transactions, very naturally spoken and inferred things from facts with which he is not well acquainted, and therefore I am not surprised—although I think I gave some explanation of that Correspondence yesterday—that the noble Earl does not see that it is not in the slightest degree applicable to the present state of things. That Correspondence occurred during a time when the discussion between ourselves and the United States' Government was carried on upon the basis of an interchange of Notes; and I explained yesterday exactly what the United States' Government held—which was, that although the President had the power to desire his agents to follow a certain procedure before the Arbitrators, he had no power by the Constitution of the United States either to withdraw or to do anything equivalent to a withdrawal of the Indirect Claims from before the Tribunal, or further to enter into any engagement with us by which we should mutually bind ourselves for the future to maintain the principles we had already advanced. But all this Correspondence occurred before we signified our consent to negotiate on the basis of a Treaty Article. That Treaty Article entirely changed the nature of things. No one can pretend that the United States' Government have not the right to put their own construction upon the Treaty. Putting that construction upon the Treaty, they believed they had 1109 a right to prefer these Indirect Claims; and believing that, their contention was that these claims can only be got rid of by a fresh Treaty, sanctioned by the Senate, or by referring them to the Arbitrators and leaving them to deal with them as they should think fit. So that, as far as the Correspondence is concerned, there is absolutely nothing to be found in it which can justify my noble Friend's change.
My Lords, there are, of course, some things in my noble Friend's speech with which I agree; much with which I should be sorry to express any concurrence in detail, and much from which I entirely disagree. As far as my memory will serve me, I will touch upon some of the points on which the noble Earl dwelt.
I think he began by stating that the composition of the British Commission was not sufficient for the purpose. I am bound to say—although this sentiment has been already expressed this year—that it comes somewhat late; because when the composition of that Commission was announced, I did not hear one single word of objection to any of the Commissioners appointed—on the contrary, the noble Earl himself, speaking in his place in Parliament, said he entirely approved the composition of the Commission. The noble Earl opposite (the Earl of Malmesbury) complained the other day that we had not appointed diplomatists. I had not the right of reply then, but I was unable to understand the accusation—for one of the members of the Commission was Sir Edward Thornton, one of the most experienced Members of the Diplomatic Body, and a man especially selected by the noble Earl opposite (the Earl of Malmesbury) to occupy the difficult position of Minister at Washington; and, as both he and your Lordships know, Sir Edward Thornton enjoyed to a great extent the confidence of the late Earl of Clarendon.
§ THE EARL OF MALMESBURY
I beg to explain that what I said was that I regretted that the President of the Commission had not been an experienced diplomatist:—because there were three or four distinguished diplomatists—I will not name them, because some of them are present in the House this evening—who had had 30 or 40 years' experience, and who ought to have been 1110 the men selected to preside over a body appointed to conduct so important a negotiation.
§ EARL GRANVILLE
I have mentioned a Member of the Commission who is not only a most experienced diplomatist, but who is one of the persons best acquainted with the present state of America; and that, I think, is a sufficient answer to the objection. But I will go further—I will say that, in my opinion, it was a great object to have a political element in the Commission, and that a statesman of high political character should be included in it. In that respect I believe that the high official position of my noble Friend (the Marquess of Ripon) was an advantage; and although I do not like to say a word about a Colleague in his presence, I will say that I should like to refer to the Commissioners who were with him—and I should not fear to include the American Commissioners—to know whether, in their opinion, anything was wanting on his part in care, or in knowledge, or in firmness, in conducting this negotiation. An hon. Friend of mine, who is very apt to hit the right nail on its head with a joke, observed in "another place" that a sharp attorney would have settled the matter in five minutes. I do not believe that; I do not believe that the sharpest of attorneys would have settled the matter in five minutes, or in five months, or in five years; but what I feel sure of is this—that nothing would have induced me to have been a party to a negotiation of this sort being carried on between two great friendly countries on any such principle as seems to be implied in that epithet. With regard to the charge that the Commission was entirely deficient in law, I utterly deny it. One Member of the Commission, Sir John Macdonald, to whom the noble Earl (Earl Russell) has paid such a high tribute, was not only eminently fitted for the office by his position as Prime Minister of Canada, but by the fact that he was Minister of Justice for that country. Again, Mr. Mountague Bernard was selected from one of our Universities for his intimate acquaintance with International Law, and as the writer of one of the best books on the subject. I venture to say that this was another high legal element in the Commission. Then the Secretary to the Commission, 1111 Lord Tenterden, who was trained in the Foreign Office, was—as I mentioned the other day—absolutely recommended to me by the noble Earl opposite as one of the three best International lawyers in this country. And then there was my right hon. Friend Sir Stafford Northcote, to whom I am deeply grateful for having joined the Commission. I am glad he did so, because it gave a more national character to the Commission; and even if that right hon. Gentleman had not had the qualification of being one of the leaders of the Conservative party, he had other personal qualifications of the highest order. Sir Stafford Northcote was many years ago called to the Bar; and when, some 25 years since, I first met him at the Board of Trade, he was then engaged in one of the branches of the permanent Civil Service, where the responsibility of drafting Treaties rested almost entirely upon him, and where he had the reputation of being one of the most accurate draftsmen in the whole Civil Service. I say, therefore, that that was a proper Commission to select; and on that point I agree with the observations made by my noble Friend last year—that no objection was to be made to it—instead of with the opinions he holds this year. Now, I quite agree that it was no use having a number of good workmen unless the work was well done; that it was of no use having a number of good cooks unless they cooked a dinner that was fit to eat. But I say, also, that the Commissioners did their work well, and I say also it is all very well to pick holes in a Treaty now which was generally approved last year—as was shown even in the proceedings of your Lordships' House. For when my noble Friend says that he consented to withdraw his Motion last year, my noble Friend is incorrect. So far from withdrawing his Motion, my noble Friend insisted upon having it negatived by your Lordships' House. [Earl RUSSELL: I did not divide.] No, my noble Friend did not divide—he only abstained from dividing because it was evident that he would have been left in a very small minority. The proceedings at that time in the House of Commons also showed that the feeling of the country generally was in favour of the Treaty. I think I have never concealed—I believe I have already several times expressed my regret at the omission from the Treaty of 1112 any demand on account of the Fenian raids; but when my noble Friend complained that in the original letter these Claims were not included, I must refer a little further back. I rather think my noble Friend was Secretary of State when they occurred, and yet I am not aware that any Claim in respect to them was ever made against America either by my noble Friend, or that the Conservative Government ever took such a course. But besides the question of expediency, other reasons were given for not pressing these Claims, as that they were partly indirect, and had not arisen at the time of the Civil War; and I hold that we adopted the most discreet policy in regard to them. It is to be regretted, and it is the one omission in the Treaty which I am ready to admit. The noble Earl (Earl Russell), in the course of his speech, said the one point on which the whole misunderstanding exists is whether my noble Friend and his Colleagues did or did not exclude the Indirect Claims from the Washington Treaty. At the beginning of his speech the noble Earl said they were so excluded; and if that is so, I, for one, cannot see how any great blame can attach to the Commissioners—they could only be blamed for not having excluded the Indirect Claims; and, therefore, I cannot reconcile the inconsistent statement which the noble Earl made at the beginning of his speech with the general tenour of his observations. As I have often said in this House, Her Majesty's Government had no intention to include the Indirect Claims in the Treaty, and we had reason to believe that the American Commissioners had no such intention; and that they were, in fact, included.
My Lords, in the observations I am now about to make I wish to avoid anything at all of a criminatory or recriminatory character with regard to the American Government or the American Commissioners, because I think we have arrived at that point where, practically, the Indirect Claims have been abandoned. But I may, without any want of kindly feeling towards the American Government, defend the British Commissioners and Her Majesty's Government upon the three points which I have mentioned. I will not trouble your Lordships at any length upon the first of these points, because I do not think there is anyone of your Lord- 1113 ships who believes that Her Majesty's Government or Commissioners ever attended to include these Claims in the Treaty. With regard to the ground we had to suppose that such was the intention of the American Commissioners, I need only mention two facts. One fact is that on a particular day—I forget precisely which—we received a simple statement from the British Commissioners that the American Commissioners had waived the Indirect Claims. The other fact upon which Her Majesty's Government grounded their belief is the Protocol, which is open to your Lordships equally with myself. It appears to me clear as the day that the Indirect Claims were waived by that Protocol. The Americans say that the waiver was contingent upon a particular settlement—an "amicable settlement"—involving the payment of a large gross sum of money. All I can say is that we have never entertained the payment of a sum of money. We all know the noble Earl's opposition to the principle of Arbitration, and we must have all thought it somewhat inconsistent with that opposition when, in the autumn of 1870, the noble Earl published a suggestion for the payment of a gross sum of money to the Americans, and so, as it seemed to me, gave up the very principle which had been maintained by each succeeding Government since there was any question of these claims at all. If noble Lords will look at the Protocol I think they will agree with me that there is no connection between this waiver on the part of the American Government and the settlement of these Claims by the payment of a sum of money. The words there used are "an amicable settlement," and are as general in their meaning as any words can possibly be, and the same words are repeated both in Mr. Fish's letter, written in January, 1871, in our despatches, in our instructions, and in the Preamble of the Treaty itself. I therefore say that, as far as we can judge by language, the waiver of these Indirect Claims is complete.
My Lords, I now come to the question of whether they are excluded under the Treaty itself. With regard to this point we certainly have the authority of the noble and learned Lord opposite (Lord Cairns), that the terms of the Treaty would admit the introduction of the Indirect Claims; but surely that opinion 1114 cannot, under the circumstances, be considered decisive, however high the noble and learned Lord's reputation as a lawyer. But even if I waive the authority of the professional advisers of the Government which I am not prepared to do—there is other authority to which I may appeal. Several Judges of the highest position and character in this country have expressed to me very strongly their opinions that the Claims are excluded by the Treaty; but as I have not the authority of those learned Judges I cannot name them. There are others, however, whose authority I may quote. Some days ago I had the pleasure of meeting the highest Judge in Chancery who has not a seat in this House and who may therefore be supposed to be the more free from political bias; and that learned Judge told me that, having spent 40 years of his life in drawing legal documents and construing legal documents drawn by other persons, his deliberate conviction was that the Treaty of Washington was admirably well drawn to effect the purpose of the British Commissioners. On my asking the learned Judge's authority to quote his opinion, he replied—"I have not the slightest objection, for I have expressed the same opinion to everyone with whom I have conversed on the subject." And it so happens that half-an-hour ago I met a member, I believe the eldest member of the Judicial Bench at Common Law—who told me that, in his opinion, the plain reading of the Article in the Treaty was to exclude the Indirect Claims, and, further, that he had never met a man who held a contrary opinion. These are very eminent authorities; but, in addition, I might quote the greatest American jurists, and among others, Mr. Beech Lawrence, editor of Wheaton's great work on International Law; Professor Wolsey, the venerable ex-President of Yale College; Mr. Ticknor Curtis, the author of The Constitutional History of the United States; and Mr. Reverdy Johnson—all of whom have publicly stated their concurrence with us in the opinion that the Treaty of Washington does not include the Indirect Claims. But I do not wish to rest upon authorities upon this matter. I will ask your Lordships, if you have not already done so, to read the arguments contained in the despatch and in the Memorandum of the 20th of March sent by us to the 1115 United States, in which it is, I think, clearly shown that the Claims could not go beyond what were generically known as "the Alabama Claims," which have been clearly ascertained and shown. The whole correspondence that has passed between Lord Clarendon, Mr. Adams, Mr. Fish, and Mr. Seward, shows clearly that the "Claims" as understood by them related only to what we know as the Direct Claims. It is never satisfactory to hear one side of a question, however; and I therefore ask your Lordships to read the reply made to a portion of the statements, contained in the Memorandum to which I refer. If your Lordships do this you will see it nowhere contended that the Indirect Claims were included. In no spirit of recrimination against the American Government—for I fully admit their right to put their own construction upon the Treaty—but, in justice to the British Commissioners, and to ourselves who appointed and sanctioned the acts of those Commissioners I desire to point out that neither they nor we have eyer used a word which could imply even a doubt upon the point of the exclusion of the Indirect Claims for the Treaty of Washington—and that is the only point on which misunderstanding has arisen. I think, then, that the terms of censure which have been bestowed upon my noble Friend and his Colleagues in some quarters, and even the mild reproach of the noble Earl that they were not equal to the occasion, are perfectly unfounded and unjust. The noble Earl has told us that we ought to have put forward this question of the Indirect Claims at the very beginning of our proceedings in reference to this question, and he told us a story, part of which I knew, but part of which was certainly not within my knowledge. I believe Her Majesty's Government were perfectly justified in taking the course they did in the Trent affair; but I was altogether unaware of the fact that my noble Friend took the personal course, apart from the sanction of the Sovereign, and, as it would seem, without the consent of his Colleagues, of sending a private threat of a very serious character to the American Government. Threats, unless you are perfectly prepared to execute them, are not certainly the wisest way of carrying on negotiations, and we should have been in a very awkward position if the American Government 1116 had been in a position not only to demand the extradition of Mr. Mason and Mr. Slidell, but to accompany the demand with a very marked threat in the event of non-compliance. When the noble Earl says that his is the way to make the Americans civil, I entirely deny it. The result of what has occurred in reference to that matter has been a feeling of the greatest bitterness in the minds of the people of the United States, and which has not tended to create harmony between the two countries. The noble Earl then went on to discuss the Treaty of last year; but I protest against the only inference I can draw from what he said—which was that because he is opposed to the principle of Arbitration we should take no means to get rid of what he admits to be a bad Treaty. I am perfectly convinced that should this Treaty unfortunately fall to the ground—which is not yet certain—we shall stand better before the whole world if we exhaust every means of coming to a favourable end of the misunderstanding which has unfortunately arisen. We have done this to the best of our ability. I think it would be very extraordinary if your Lordships were not able to detect some slight flaws here and there in a negotiation of extraordinary difficulty, and particularly when a portion of that negotiation was conducted by means of the telegraph, which is one of the most imperfect agencies for negotiation that could be devised. The noble Earl has referred to some contrivance upon which he says Mr. Gladstone is engaged—but the description of which I cannot repeat—for the purpose of appearing to do one thing, but in reality doing another. I can only say with regard to this, that I am perfectly unaware of any facts which in any way agree with the noble Earl's description, and I should like to know the authority on which the noble Earl makes the accusation. Yesterday we were reproached for going so far as to state what the present position of affairs is; but I did go so far as to state some facts, and I think that I then showed that with regard to the Supplemental Article we were ready to adopt a course which would be attended with no difficulty on America doing that which was equivalent to a withdrawal of the Indirect Claims, and that the only difficulty which now exists is with regard to the use of words re- 1117 lating to the action of both countries for the future. Some of your Lordships may, perhaps, be of opinion that what the Americans engaged provisionally to do would not be sufficient for the object we have in view. Now, it appears to me that it would be perfectly sufficient—and I will tell your Lordships why—we have both interests in common—we are both commercial and maritime nations—it is only the mode of expression that they object to in the Supplemental Article. They think that our proposals are too limited. This engagement, if made, would be communicated to the Arbitrators by both parties to the negotiations either by a joint Note or identic Notes, before or at the time of their meeting to receive the written or printed arguments, or summary of arguments, under Article 5 of the Treaty, and to proceed with the business of the Arbitration. The written or printed argument of each party to be then delivered is to show the points, and to refer to the evidence on which each Government relies. Now, the United States could not, without a direct breach of the agreement not to make any claim in respect of these Indirect Losses before the Tribunal of Arbitration, have relied upon any point, or referred to any evidence, in respect of such Indirect Losses, in their written or printed argument delivered under this Article of the Treaty. Under Article 2 the Arbitrators are to "examine and decide all questions that shall be laid before them" on the parts of the Governments respectively; and your Lordships are aware that under Article 6 they are to be governed by certain rules "in deciding the matters submitted to them." When, before the preliminary proceedings are closed, or the arguments under Article 5 delivered, they are informed by an identic Note from both Governments that the United States "will make no claim before them in respect of the Indirect Losses" mentioned in the Supplemental Article, they will have distinct notice that no question in respect of those losses is "laid before them" or "submitted to them" for their decision, by either Government. It appears to me, therefore, perfectly unreasonable and extravagant to say that the Arbitrators, because these Claims have been advanced in the Case and Counter-Case of the United States, will be bound or entitled to treat them as 1118 among the questions laid before them on the "part of the Government of the United States," after it has been formally notified to them by the United States themselves that they have agreed "not to make" and "will not make" them. The very suggestion of such an equivocation upon these words would deprive them of all practical meaning whatever, and would make the agreement for the future "in consideration whereof" the President agrees to "make no claim," &c. wholly illusory and gratuitous. The words "he will make no claim in respect of" Indirect "Losses as aforesaid" as much preclude a claim to have such Indirect Losses taken into account, in arriving at a lump sum to be awarded by the Arbitrators, as they would preclude a claim for a separate award by them on that account. Indeed, no such separate award by the Arbitrators is possible under the 7th Article of the Treaty. The waiver, therefore, can only be of any claim to have these Indirect Losses taken into account in awarding a sum in gross. My Lords, I am no lawyer; but it appears to me to be perfectly plain that if in a private arbitration the parties have sent in claims in writing, and afterwards, before or during the arguments, agree that one of those claims "shall not be made" by the party who had previously made it, and jointly inform the arbitrator of that agreement, the arbitrator would very grossly miscarry in his duty if he did not treat that claim as if it had never been made. I think that this is a perfectly simple statement of the force of the Supplemental Article, and that Her Majesty's Government have been well advised that it is perfectly sufficient for the purpose we have in view.
And now I must say a word or two respecting the course which the noble Earl has adopted in proposing this Resolution. If the noble Earl the late Secrecretary for Foreign Affairs (the Earl of Derby), who was so full of friendly feeling towards the United States, and who had endeavoured by Arbitration to come to some settlement with them, had brought forward this Motion, there might not have been so much objection to it as there is now that it is brought forward by my noble Friend, for I apprehend that he would not deny that if there is one man in public life whom the Americans look upon almost as entertaining 1119 an almost personal enmity it is the noble Earl himself. Not that I think they are justified in holding this opinion, for I know from personal association that during the anxious time of the Civil War my noble Friend did his best in a friendly way to maintain our neutrality in the fairest manner. That, however, is not the opinion of the people of the United States, and I do not think that some recent speeches—including that which he has delivered to-night—are calculated to convey to the American people the impression that his Motion is a mere assertion of our national rights, and not something like a triumphant defiance to a great and kindred nation. I think this Vote of Censure is at the present moment—so critical in respect to the Treaty—perfectly uncalled for; and after the declaration which I made as recently as last evening, it will throw an immense responsibility on this House. The adoption of the Motion by your Lordships will destroy all chance of maintaining the Treaty, and if the Treaty fails it will certainly envenom the failure. It would be felt on both sides that an unfortunate misunderstanding had arisen between the two nations, but this is far preferable to causing in the United States a feeling of enmity and hostility towards England. If your Lordships adopt this Motion by the enormous majority which you can command, you will be insisting that the President of the United States should do that particular thing which the head of the Conservative party, at his recent visit to Manchester, stated that it was impossible for him to do. And, my Lords, when I refer to the declaration of Mr. Disraeli, I am bound to say that, although he has been watching Mr. Gladstone all this Session like a cat, he has observed a statesmanlike reticence on this subject, and seems fully to understand the importance of the relations between these two great countries. Nevertheless, this great statesman tells you that it is impossible for the President of the United States to do that which you are demanding. If, my Lords, you insist on carrying this Motion you will be taking a grave responsibility upon yourselves. My Lords, you will be going further even than that—you will be arrogating to yourselves the power which the Senate alone constitutionally possesses, and making yourselves a party to what the Americans 1120 call the treaty-making functions of the State. I trust your Lordships will not be carried away by clap-trap about "pluck." I have never seen any real courage, sitting quietly at home, in using language which might involve this country in the calamities of war. The best policy for this country is to remain as firm and as calm as possible—not to give up one jot of that which belongs to the dignity and honour of the country; and, on the other hand, to avoid as much as you can, whether as a Government or as a legislative body, irritating expressions and irritating Resolutions.
My Lords, my noble Friend the Foreign Secretary has appealed to your Lordships not to adopt the Resolution of the noble Earl (Earl Russell) which he terms a Vote of Censure—on the ground of the immense responsibility your Lordships would take upon yourselves if, in consequence, the Treaty should drop, and the feeling in the United States become more embittered against us; and he warned your Lordships not to arrogate to yourselves the treaty-making powers which the United States' Senate possesses by the American Constitution. My Lords, in regard to the power possessed by the Constitution by either House of Parliament in this respect, I think no point can be more completely settled by precedent and long practice than this—that it is perfectly competent to either House, when there is a fear that an indiscreet use may be made of the power of the Crown, to interpose its advice. I agree that that power is not to be lightly used. I have no desire to concur in any Motion which shall have even the appearance of hostility to the Government. But let your Lordships consider what is the situation in which we are actually placed. Your Lordships will remember that for some five or six months the question has been before the world whether this country shall allow to be submitted to the Arbitrators at Geneva a claim involving very many millions of money for what have been termed the Indirect Claims. The very first moment it was known that these Claims were brought forward they were unanimously repudiated by this country. My noble Friend who has just sat down (Earl Granville) took up no small part of his speech in proving that these Claims were entirely unfounded. I agree with him; I think the arguments 1121 irresistible. Under the Treaty the United States have no just right to put forward these Claims. But the more my noble Friend proves this, the more completely he shows that the Commissioners did not neglect their duty—that the Treaty was properly framed, and was not intended to give the Americans any right to put forward these preposterous Claims against us—the more completely he also proves this second proposition, that because these Claims are unjust—as my noble Friend states them to be—it is the duty of the Government, and it is the duty of Parliament, to take care that these Claims are not brought forward against us. When these Claims were brought forward we were told by Her Majesty's Government that they were not admitted to fall within the scope of the Treaty. We subsequently learnt that the Americans adhered to a contrary view of the case. From February up to this time negotiations have been going on which have not yet come to a conclusion, as to whether these Claims are to be considered by the Arbitrators at Geneva or not. Time is going on, and we are now within a very few days of that date when, unless some decisive step is taken by Her Majesty's Government, we shall be concluded to have admitted these Claims by default, and the whole Case will be before the Arbitrators. That being the case, is it unreasonable—is it unnatural that this House of Parliament should ask Her Majesty's Government for some declaration of their intentions which will re-assure us—which will convince us that we are not really to have these Claims brought against us, and an award given against us by the Arbitrators in respect of them? I assure my noble Friend I have no wish to vote for this Resolution, even at this late moment; and I think my noble Friend (Earl Russell) would do quite right to withdraw the Motion, if Her Majesty's Government on their part would give us a clear and distinct assurance that we might trust to them that they would decline proceeding any further in the arbitration if the Indirect Claims were not entirely withdrawn from the cognizance of the Arbitrators. But is that the case? As the matter now stands, will any man who will take the trouble of carefully considering it, venture to affirm that these Claims are withdrawn? The Americans have steadily adhered to their interpretation 1122 from the first. We now have the Supplemental Article before us; and I ask whether, among those who have considered its words, there is not an almost unanimous concurrence of opinion that this Article, as it stands, does not contain anything which will prevent the Arbitrators from taking these Claims into consideration in their award? We want security not merely against some preposterous award of £200,000,000—we want more than that—we ought to be sure that the Arbitrators in awarding, perhaps, a lump sum against us, may not say—"Here are these Indirect Claims; we do not think they warrant so large a claim as the Americans put forward, but there is a great deal in them, and the British Government have not on their side offered any argument whatever against them." I cannot approve that line of conduct; but the fact remains—there are the Claims, without any answer to them, before the Arbitrators, and, as a consequence, it is in their power to say—"In consideration of these Claims, though we won't allow them as a whole, we will increase considerably the lump sum which we otherwise award under the terms of the Treaty." On a rough calculation, it is quite possible they might double the award in consideration of these Indirect Claims, and I am at a loss to discover any words to prevent their doing so. But, my Lords, I must go further than that. If Her Majesty's Government and the Government of America are really agreed that these Claims are to be effectively and entirely taken out of the cognizance of the Arbitrators, what is to prevent them saying so—saying that these Claims are not to be considered by the Arbitrators at all in deciding what may be due from Great Britain to the United States? If you intend to act upon that policy, what is the object of concealing it? When we find that a simple declaration of that kind would at once remove all difficulty, and that declaration is not made, it seems to me that that circumstance affords ground for grave doubt. My noble Friend (Earl Russell) on introducing the Motion referred to the remarkable correspondence between Mr. Secretary Fish and General Schenck, which has appeared in the newspapers. Throughout the whole of that correspondence there appears to be the most positive determination on the part of the American Go- 1123 vernment not in any way to withdraw the Indirect Claims from the consideration of the Arbitrators. My noble Friend the Foreign Secretary says, in answering the noble Earl, that that is a complete mistake, and that the correspondence refers to a different set of circumstances, which existed when the question was whether Notes should be addressed to the Commissioners, and does not refer to the addition of an Article to the Treaty. But that answer, as far as I understand it, does not apply to the latter part of that correspondence. We were told before the House adjourned for Whitsuntide, that for the last two or three days there had been communications going on by telegraph between Washington and London, with the view of coming to terms upon this Supplemental Article. The House adjourned on the 13th of May, and I have some extracts from the correspondence which show that at least three or four days afterwards the question of this Supplemental Article was raised. My Lords, I find that on the 14th of May Mr. Fish telegraphs to the American Minister at London—I cannot consent to any proposition which by implication or inference withdraws any part of the Case of this Government from the consideration of the tribunal.That is dated the 14th of May, after the Supplemental Treaty was in agitation; and he goes on further and says—The proposal prevents any expression of opinion or of judgment by the tribunal on the class of claims referred to, and thus virtually denies what this Government believes, that the tribunal has jurisdiction over all the claims which have been put forth.Therefore, up to the 14th of May we find the American Secretary of State expressly instructing the American Minister here that—"under no circumstances is he to consent to anything which directly or by inference withdraws any part of the American Case from the cognizance of the Arbitrators." My Lords, as I said before, I will not trouble your Lordships with any further extracts from this correspondence; but it does appear to me that in the face of what we know, we cannot without culpable remissness be content with the statement we have just heard. I have already said that the necessity for this Address, in my opinion, might be got rid of at once if Her Majesty's Ministers would only give the House the assurance 1124 that the Arbitration should not proceed unless these Indirect Claims were either withdrawn or would not in any manner be considered by the Arbitrators. But that assurance is precisely what the Government will not give. Need I recall to your Lordships' recollection what has already been stated by my noble Friend the Secretary of State to-night, and, what is still more significant, what is reported to have been said last night "elsewhere" by the Prime Minister? First of all, my noble Friend the noble Earl stated last night that there was nothing in dispute beyond the Supplemental Treaty—that the negotiations had reference to quite a different matter; and he said the American Minister had declared that he entirely concurred in the construction put by the noble Earl, which was entirely satisfactory to the Government. My noble Friend last night read the record he had made of his conversation with General Schenck, quoting what his understanding was. But when I come to look closely at that record, I own it is to my mind entirely unsatisfactory. It contains no promise further than this—that the Americans will take no steps beyond what they have taken already to bring these Claims under the consideration of the Arbitrators; but they positively refuse to consider them as excluded from the consideration of the Arbitrators—they had been put in and must remain. But more than this. We have been informed by Mr. Gladstone that no written expression of opinion beyond what is contained in the drauft of the Treaty on this point has been obtained from the American Government—so that if we allow the matter to rest in this way we shall be committed to the very mistake charged upon the Government by the noble Earl, when he said the Government had trusted entirely to understanding in this matter. Mr. Gladstone was asked whether he was able to say that we should not go on with the Arbitration if these Claims were not withdrawn from the consideration of the Arbitrators; and he in the most impassioned language utterly refused to make any such declaration. He said it would be most improper, and he would make no declaration of the kind. His words are so remarkable that I must call your Lordships' attention to them. He said—The hon. Member (Mr. Bernal Osborne) has challenged me upon the question whether, under 1125 any circumstances, we should consent to allow the Indirect Claims to be prosecuted at Geneva. With respect to that all-important subject I do not think this is the proper moment to enter upon it.He then refers to former discussions before Whitsuntide, and on the Address, and goes on—We then referred to the single and separate views of the British Government. We are now engaged in negotiation, endeavouring to express the combined view of the two Governments. While we are so negotiating it would be, in my opinion, madness—it would certainly be a gross breach of duty—on the part of Her Majesty's Government if they were to choose that moment for going back to the expression of their separate views.He says he will not now assure Parliament or the country that the Government will adhere firmly to the resolution not to allow these Indirect Claims to come in any manner under the consideration of the Arbitrators. Now, my Lords, in these circumstances and in this situation of affairs the simple question we are called on to decide is this—Will you, or will you not, vote an Address to Her Majesty, not to allow the Arbitration to go on without an assurance which I hold 99 out of every 100 of the people of this country believe to be absolutely necessary for the safety and honour of this country?
§ EARL GRANVILLE
rose to explain. He found on referring to the correspondence that the letter of Mr. Fish which his noble Friend had quoted was dated not the 14th, but the 4th of May, and therefore was anterior to the Supplemental Article.
The date given in the newspaper was certainly the 14th, but of course that may be a mistake for the 4th. I have no means of verifying the dates given in the published correspondence. Well, my Lords, the question we are called upon to decide is, whether on the refusal of the Government to give us the assurance that these Indirect Claims shall in no manner come under the cognizance of the Arbitrators, this House will not agree to an Address to advise Her Majesty not to proceed with the Arbitration to which these Claims may be submitted. For my own part, I feel this House will be deserting the duty which is particularly incumbent upon it—that of maintaining, as far as it can, the honour of the Crown—if we declined to agree to the Address of my noble Friend while the Government still 1126 refuse to give us the assurance we ask. Then, I say, we should have no right to turn round on them, and if they involved the country by any impolitic admission to say they did very wrong. My noble Friend (Earl Granville) said—Vote a Vote of Censure if you please a week hence, but do not at this moment interfere. I do not, my Lords, propose any Vote of Censure; but I do earnestly desire that, either by the consent of the Government, or, if they refuse, by the interference of this House, a course may be taken to protect what I believe to be endangered, the honour of this country.
said, an arbitration between nations was a novel attempt to attain a good result in the most amicable manner; and therefore it was most important that no unreasonable difficulty should be raised as to the principle which should guide the Arbitrators in considering the matters brought before them. Now, he was prepared to maintain that the Indirect Claims were not included in the Treaty of Washington, and therefore could not be brought under the consideration of the Tribunal of Arbitration at Geneva. But should the Arbitrators enter into consideration of those Claims on the Case of the United States Government—though he could not believe that they would—it must be remembered that any award they might make against us in respect of them would be instantly repudiated by our Government, and that the House of Commons would refuse to vote the money.
§ VISCOUNT STRATFORD DE REDCLIFFE
rose to state in few words his reasons for the vote he intended to give. He would first remind their Lordships that he had been practically conversant during the far greater part of his official life with matters of a description similar to what had brought on the present discussion, that he had been for several years the representative of this country at Washington, and that he had also been Plenipotentiary in a negotiation intended, like that of last year, to settle all our outstanding differences of a serious kind with the United States. He went on to say that we succeeded on that occasion in making one Convention creditable to American liberality, and our Government of the same period was prepared to act in a kindred spirit on some of the remaining questions. Un- 1127 happily, the American Senate introduced new matter which was not acceptable to England, and by that fatality a Treaty confirmed by both Governments had fallen to the ground, and had brought with it a collapse of the whole negotiation. It was well, in his opinion, that under the existing circumstances their Lordships should be reminded of that occurrence, however remote from the present day. At no time could he regret the part he took in originating a negotiation which promised to establish relations of durable cordiality between the United States and the United Kingdom, and into which the British Government had entered with the most sincere and liberal intentions. That negotiation presented two prominent examples bearing on the crisis which we had now to confront. It helped materially to show how little we deserved the reproach of entertaining systematically unkind sentiments towards America, and it brought into evidence the peculiar difficulty which the institutions of the United States opposed to the conclusion of Treaties between their Government and the Governments of other States. He should be altogether at variance with his own principles if he did not appreciate the motives which had induced Her Majesty's present Ministers to open those negotiations which led to the Treaty of Washington, even if he did not applaud the invaluable objects of the Treaty itself. Exception, as all knew, had been taken to the tone and wording in certain passages of that Treaty, and, indeed, to several of its substantive engagements. To the defects so generally pointed out he could not pretend to be altogether insensible, and whether he looked to the form of the preliminary apology, to the acceptance of rules invested with a retroactive effect, or to the omission of claims to compensation on the part of Canada, the impressions conveyed to his mind were anything but satisfactory. He should not, however, think himself justified in casting blame on our Commissioners. They appeared to have acted from first to last under the express sanction and with the complete approval of their Government, and surely it followed, as a necessary consequence, that whatever responsibility attached to the result of their labours belonged not to them, but to those who 1128 employed, instructed, and approved them. But the question with which we had now to deal, though quite as important, was far more simple than what in general concerned the character and merits of the Treaty. Were the Indirect Claims to be submitted to arbitration, or were they not? That was the one point of difference between the two contracting parties. We, as it would seem, were resolved—nay, it might be said that we were virtually pledged—not to appear before the Geneva Arbitrators until the Indirect Claims were wholly withdrawn. We had nothing as yet, but quite the contrary, to warrant a belief that the American authorities were willing to take that step. The decisive day was all but close at hand, and still an interchange of communications was kept up between London and Washington in the vague hope of shaping terms of agreement calculated to set aside the objectionable Claims without an express act of withdrawal. It was difficult to conceive how such a compromise could be effected in language not open to more or less uncertainty and equivocation. Nor was the danger of future embarrassment less formidable because Her Majesty's Ministers had entangled themselves in a web of fine-drawn phrases, with the kindliest intentions, no doubt, but hitherto unluckily, with the most impotent result. Their Lordships were not required to mistrust their intentions, but to obtain a security against the bias of their affections. He could not dissemble his opinion that a more explicit and manly course, had it been adopted by them from the beginning, would, in all probability, have brought the country with less delay and less anxiety to the issue it desired. The Americans were of British origin, and, partaking of the British character, they could hardly have failed to appreciate such a course of proceeding. The forms would naturally have been those of courtesy and friendly consideration, but able nevertheless to command respect, while expressing objections, which were founded in right and a just sense of national dignity. Both nations had the strongest reasons for cherishing relations of peace and-good will with each other, not on account of their cousinship, as it was popularly called, since brotherhood itself could not prevent the first great crime on record, but far 1129 more truly because material interests of the highest importance, allied with many natural sympathies, forbade them to persist in a course of mutual mistrust and habitual jealousy. Deeply as he en-entertained that conviction, he did not hesitate to say that he had rather lose sight of the Treaty altogether than purchase its fulfilment by the slightest essential departure from our declared position. The main object of the Treaty, which alone could make up for its defects—namely, a cordial and lasting settlement of differences—would be lost if in any degree the Indirect Claims were left open to revival and prosecution at some later period. It was, he conceived, to preclude that fatal risk that the Motion under consideration had been made, and in that persuasion he proposed to give it his humble support. Were Government to make the proposed Address to Her Majesty unnecessary, by a frank and unequivocal declaration of what they had hitherto but doubtfully intimated, he felt convinced that they would best fulfil the expectations of the country, and secure the respect of all who had given their attention to the still unsettled Claims connected with the Treaty of Washington.
§ THE EARL OF DERBY
My Lords, I should have preferred to postpone till a later period of the evening the observations I have to make on this matter; but I do not think that it would be for the credit of this House if a debate commenced on such a subject were to lapse on account of the mere accidental absence from the House of those who intended to take a part in it. I have no wish to conceal that it was with some feelings of personal reluctance that I determined to take a part in the discussion and in the division which will probably follow. Everybody who even for a short time has had anything to do with the management of diplomatic affairs—everyone who has been connected with those affairs long enough to imbibe the feelings and, it may be, the prejudices of the honourable profession by which those affairs are conducted—must feel that for either House to interpose during pending negotiations is a step not of frequent occurrence undoubtedly, but, on the contrary, unusual and exceptional. I fully concede to the noble Earl opposite that it is a step only justified by necessity and public 1130 duty, and if those reasons are absent it cannot be justified at all. When I speak of public duty I speak in a national, and not in a party sense. If I were looking at it from that lower point of view, I should probably say it would rather be an advantage to those who are not supporters of the present Government to allow them to go on without check or warning—without any interposition upon our part; and then when all was over, and the mischief, as we suppose it to be, done, then, and not before then, to call them to account for their conduct. We have, however, considerations of a very different character to look to, and when I see a probability—or even a possibility—of public danger and injury arising, I conceive that it is the duty of any Member of this House not to content himself with looking idly on—not to screen himself under the idea that, as a private Member, he is not responsible in the matter. It is his duty, if he can, to interpose before any mischief is done. No doubt, this Resolution is somewhat exceptional in its character; but I ask whether the circumstances which have called it forth are not also exceptional? It seems to me a very exceptional state of things when you have a Treaty concluded between two parties, and when immediately after its conclusion the negotiators and the Governments on both sides are perfectly unable to say what the Treaty has been about, and differ, not upon some little detail of its construction, but upon a question of no less magnitude than this—whether the matter which has been the subject of negotiation is a question of claims to the amount of £4,000,000, £5,000,000, or £6,000,000, or whether, as stated on the American side, they may betaken at £150,000,000 or £200,000,000. I think it is rather an exceptional state of things when the negotiators upon one side of the Case appeal to an understanding, an engagement, a promise—call it by what name you will—not included in any written, or at least not in any published document, and very materially affecting the scope of the Treaty, and when the negotiators on the other side deny that any such promise or understanding existed. Again, it is rather an exceptional state of things when a second or Supplemental Treaty has to be concluded in order to make the first intelligible. I do not wish to enter into details unnecessary for my 1131 present purpose, or dwell on some other peculiar features of the case—were I to do so I might name some—especially the Canadian guarantee—which seem to be very exceptional in character. There is, moreover, one peculiarity in the present proceedings with which I find no fault, but which, on the contrary, I approve, yet which takes these matters very much out of the ordinary track of diplomatic proceedings—and that is that from first to last, in the whole of these negotiations, the public of both countries have been kept informed and made, so to speak, parties to the negotiations as they went along. That, to my mind, is quite right, but undoubtedly in diplomacy it has not hitherto been an ordinary step; and even if in this Resolution we were stepping beyond ordinary Parliamentary practice, I should still find a sufficient justification for it in the fact that we have events to deal with which are not of an ordinary character. The noble Earl (Earl Russell) calls upon us to vote Aye or No upon this Resolution, and in deciding on my vote, I have to ask myself what it contains. I must observe, in the first place—for I think it is a point upon which my noble Friend opposite (Earl Granville) seems to take a different view—that this is not a Resolution of censure upon anything that Ministers have done, or upon anything that, if we are to take their own statement, they intend to do. It condemns no act of theirs in the past, it asks them to break no pledge for the future. It contains no expression and conveys no meaning offensive to the Government or to the people of the United States. It passes no judgment upon any circumstances connected with the negotiations which still remain, and, for aught we know, are likely long to remain, unexplained. It is at the utmost a warning—a caution—conveyed in language plain, indeed, and decided, but not, as it seems to me, unnecessarily peremptory in tone. It is a hint that we see certain dangers ahead, and that we wish to keep ourselves and the Cabinet clear of them. Looking at the Resolution in that light, I cannot refuse to support it. Now, on what grounds is it opposed by my noble Friend opposite (Earl Granville)? Not upon the ground that it embodies any principle from which as a principle the Government dissent—I apprehend that the fact is quite the contrary. Their line of 1132 argument rather is that it is unnecessary to tie them down, for that they mean to act and are acting in the spirit of the Resolution. Well, that they mean to act in that spirit I believe, because they have again and again said so; but whether they are acting in it is quite another matter. I have perfect confidence in their good intentions; but after what I must call the muddle and mistakes of last winter, for which they are responsible, I must be excused if I do not feel particular confidence in their infallibility. When your guide has led you into a swamp, and you are not yet clear of it, however great may be your respect for him, you cannot feel implicit confidence in his assurance that he is perfectly well acquainted with the rest of the way. My noble Friend says—"Take care you do not exceed your constitutional powers; take care you do not unconstitutionally arrogate to yourselves that which is a constitutional power of the American Senate." My answer to that is simple. We arrogate to ourselves no power whatever except that power which is possessed by the humblest and poorest of the land—the power of making our voice heard upon questions of public policy; and I do not imagine that we are deprived of that right or power by the mere fact of our sitting here as Members of one branch of the Legislature. My noble Friend made an appeal to us with the spirit of which I entirely sympathize. He asked us to consider lest what we are doing or saying should be offensive to the people of the United States. Now, my Lords, I cannot conceive a worse compliment to pay the people of the United States or to the people of any independent and civilized country than to be in this perpetual state of terror lest the plain and frank and not uncourteous statement of our own Case and rights should give them offence. We do not want to quarrel with the people of the United States—no human being in this country entertains such a wish. We do not want the Government even to break off the negotiations. We simply want to know where we stand, and we ask—what surely after all that has passed is not unreasonable—that the language used may be plain and precise, and may not be such as to lead to misunderstanding in the future. Look for a moment at the situation. How did the difficulty begin? Everybody 1133 knows that we put one construction on the Treaty and that the American negotiators put another. The noble Earl stated that he conceived the Indirect Claims were excluded by the Treaty as it stands. Now, that matter has been abundantly discussed in both Houses, in every newspaper, in every private society, and, I think, the very utmost for which anyone unconnected with the Government has ever contended is this—that the language of the Treaty was so vague, so ambiguous, and so uncertain that it may be construed either way, and therefore our construction was as admissible as that put upon it by the other side. Now, I do not think that in a matter of such enormous importance—after the plain warning which had been given us by the speech of Mr. Sumner—after the evidence we had had of the immense consequence which the American Government and people attached to these Indirect Claims, and the pertinacity with which they had urged them—I do not think it is at all unreasonable to say that in a matter of that kind, un certainty and ambiguity in the language of the document to which you must appeal as the supreme authority upon the matter are not likely to inspire confidence. I will not go into the controversy raised by my noble Friend. He says the Indirect Claims, even if in the Treaty, are waived in the Protocol, and he referred to the question which has often been discussed as to the meaning of the words "amicable settlement." Now, the obvious answer to that has often been given. An arbitration is not an amicable settlement—it is a means by which an amicable settlement may be arrived at, but it is not itself a settlement. I do not want to go into that question, for it is enough for my argument to say, that in a matter of this kind, with the full knowledge which we have had of what was claimed by the other side, and considering the immense importance of the matter at issue, there ought to have been no doubt or uncertainty. Then there is, my Lords, another point on which I wish to say a few words. It is said that there was some engagement—some understanding—that these Indirect or Consequential Claims, however they might be put forward, would not be pressed to a substantial issue. When, however, we enter into the matter the whole question seems 1134 to me to be involved in greater ambiguity than ever. I do not undertake to solve the problem—I do not undertake to say what did or did not pass between the negotiators—but I am, at any rate, safe in laying down the proposition that such an understanding as that to which I am referring either did or did not exist. In either case, the course which Her Majesty's Government took appears to my mind to be equally inexplicable. If there was no "understanding," then the vagueness of the words used in the Treaty cannot be excused, except on one or two suppositions. One of those suppositions I am very unwilling to entertain—namely, the supposition that the negotiators would not or could not see what everyone else on both sides of the Atlantic did see perfectly well. The other alternative is, that either our Commissioners or the Government at home were so bent on concluding a Treaty of some kind that they were prepared to run any risk of future danger rather than fail in their object. Now, supposing an understanding or engagement of this kind was really entered into, can anyone explain why it was not openly mentioned before Parliament and the public? If you really got a promise from the American negotiators that certain Claims which were apparently included in the Treaty should not be put forward, then to say nothing about that promise, but to rest your whole Case on the confessedly uncertain wording of the document itself, is a mode of proceeding which I think it would be very difficult to reconcile with the idea which ordinary persons have of the manner of conducting business. It is really as though a man who was pressed for the payment of a debt were to dispute his liability and to plead never indebted, when he all the time knew perfectly well that he had paid the money and had got a receipt for it in his pocket. But there is another point which has not been cleared up, and on which I hope some light will be thrown before the close of this debate. We have it on the authority of one of the negotiators—a man I will not say upon whose honour only, but upon whose accuracy in questions of fact nobody knows better than I do how much reliance is to be placed—we have it on the authority of Sir Stafford North-cote that an understanding such as I am speaking of did exist between him 1135 and the American negotiators. Now, as to this understanding, I should like to ask how the matter stands so far as the American Senate are concerned? It is quite clear—whatever else may be in doubt—that the Senate were no parties to the understanding, and that it did not, therefore, and could not bind them. But to send a Treaty to the Senate while an understanding existed between the two Governments that one very important part of it was never meant to be relied on at all, and yet to leave them in complete ignorance of that understanding, seems to me to be a very extraordinary mode of proceeding as regards that portion of the treaty-making power of America, and a mode of proceeding of which that branch of the American Legislature may very reasonably complain. I mention this because I am of opinion that whatever alternative the Government chooses to adopt, whether they admit there was an understanding, or whether they contend that no understanding ever existed, they pursued a course which is equally open to censure. I now come, my Lords, to the language of the Supplemental Article which we are told is to set all these difficulties at rest. The object of that Article, it is said, is to exclude these Indirect or Consequential Claims; very likely; but will it have that effect? In order to supply an answer to the question you must not look merely at the intention of the framers, but to the words of the document itself. The President of the United States consents to make no claim in respect of these Indirect Claims. That may be binding for the future; but the President has made his Claims. The American Claims are at present before the Arbitrators, and the Arbitrators will, as far as I can see, be bound to take cognizance of them. The noble Earl the Secretary for Foreign Affairs has explained to us the nature of the machinery by which it is now proposed to take these Claims out of the consideration of the Arbitrators. It is to be done by means of a joint or identic Note, on which the Arbitrators are to act. Now, it is not for me to pass any judgment on the question whether the object which we have in view is to be secured in that way; but if it is really intended on both sides that the Indirect Claims should be withdrawn, why, I would ask, is not that result car- 1136 ried out in a plain and simple way? If these Claims are to be withdrawn in fact, why not in form? It appears to me that as matters stand, there are two alternatives possible, in either of which the issue may be of a very unsatisfactory character. The Arbitrators are expressly permitted to give an award for a lump sum, without stating what Claims they have taken into account, but merely stating that they have taken into consideration all the matters which have been referred to them, and that as the result of such consideration, they are of opinion that the British Government is indebted in a certain amount to the United States. Now, I do not see in any part of the elaborate machinery which the noble Earl opposite has explained to us, any provision by which the possible award of a lump sum, on a general survey of the whole question, including the Indirect Claims, is barred. Again, to look at the matter in another point of view. The engagements contained in the Supplemental Article come to no more than this—that the Government of the United States undertakes not to press for a money payment in consideration of certain losses; but the money question, though certainly not unimportant when the amount involved is taken into account, is not the only question which we have to consider. Suppose the Arbitrators—as it seems to me they well may do under this Article—should be of opinion that for the prolongation of the war during the last two years of its continuance England was morally responsible. Suppose they pronounce an authoritative opinion to that effect—and this, we know, is the American contention—will it, I would ask, be altogether satisfactory to us that they should take that course, although they might add, at the same time, that no harm could come of it to us in a pecuniary point of view, because the American Government had generously waived their Claims for the losses which they had suffered? It appears to me that, although we might be safe so far as our pockets are concerned, it is not a position in which we ought to be placed to have Claims of this kind brought before such a tribunal with the possibility of such a result as that which I have just mentioned. I pass over other minor points of criticism, and I say that this Article as it stands, the work of the 1137 Cabinet—gives us no security that the Arbitration will be in reality confined to the subjects which we mean it to include. No doubt, I may be told that I am speaking in ignorance of the alterations which have been made in the Article by the American Senate; but, whatever those alterations may be, I think it is pretty certain they are not such as would be likely to make the document more palatable from the British point of view. That being so, and looking at this Supplemental Article as being, in fact, a second Treaty the stipulations of which, like those of the first, are not as definite as they ought to be, I, for one, do not think the step which the noble Earl who brought forward this subject (Earl Russell) asks us to take is idle or unnecessary. I believe it, on the contrary, to be called for by the occasion; and though I, for one, vote for it with regret, because it must be matter of regret that any such vote should be required, yet I shall give it my support without the slightest doubt as to either its policy or justice.
THE EARL OF KIMBERLEY
My Lords, no one in this House usually approaches a subject in a more calm and judicial spirit than the noble Earl opposite (the Earl of Derby), and his opinion, which is always valuable, would in this matter carry especial weight, because, as a former Minister of Foreign Affairs, he has himself had experience of diplomacy. I confess, therefore, I heard with deep regret the noble Earl constitute himself the advocate, to a certain extent, of the United States in this matter, and I think the noble Earl can hardly have weighed the full effect of the words uttered by him on this occasion on the other side of the Atlantic, when he expressed his opinion that the Treaty was open to the construction put upon it by those who hold that our interpretation of it is not maintainable. Even if the views of the noble Earl upon that point be correct, I should have thought that the noble Earl, from a sense of patriotic duty, would have abstained from making any observations of that kind on this occasion. I have made this complaint of the noble Earl's speech looking at it from a national and not from a party point of view, because I am far from complaining of the tone or the manner in which the noble Earl has criticized the conduct of Her Majesty's Go- 1138 vernment. The noble Earl commenced his speech by endeavouring to answer the arguments of my noble Friend behind me (Earl Granville) that this is an exceptional proceeding and amounted to the arrogating on the part of this House of the power of negotiating treaties. Now, the noble Earl opposite maintains that this view of the Resolution now before us is incorrect. But if this Resolution be analyzed, it will be found to contain this assumption—for it lays down the proposition that in the opinion of this House one, and one only, mode is to be pursued in attempting to settle this matter with the United States; that is to say, that this House, in the most critical moment of an important negotiation, shall say to the Minister of the Crown—"In one way, and in one way only, shall you conduct the negotiation." If that course is to be adopted with regard to delicate and important negotiations, let us adopt the principle of the American Senate and discuss these matters in Secret Session. The noble Earl (the Earl of Derby) again, is surprised at our regarding this Resolution as implying a want of confidence and as a censure upon the Government. A want of confidence in the Government I should think it implies as much as any Motion that could be made; but the noble Earl contends that it cannot be looked upon as a censure upon the Government, because it in no way relates to what has been done, and refers only to what we are about to do. But does it not amount to this—that after the declarations which have been made on this subject, and when the House knows the mode in which we consider that the honour of the country ought to be upheld, they still think it necessary to pass this Resolution, directing us to adopt one particular course? The noble Earl said—"After all, why not adopt a perfectly straightforward and open tone in this matter; say what you really mean; ask what you really want, and leave no doubt upon the matter." That is a proposition which, broadly stated, recommends itself probably to every Member of your Lordships' House. But when the noble Earl says that that is a question of form rather than of fact, I was surprised that the noble Earl, after his experience in connection with diplomacy, should think for a moment that a matter of form must be a matter of indifference. 1139 Is it a matter of indifference to the American Government how they should withdraw Claims which they have made in the face of the whole country? Is it a matter of indifference whether they withdraw these Claims directly, or whether some means cannot be found by which their submission to arbitration may be avoided? If the noble Earl is of that opinion he differs from the Leader of the Conservative party, who, as my noble Friend behind me has already observed, said at Manchester it was impossible that the American Government should in direct terms withdraw these Claims. The meaning of this Resolution, therefore, can be nothing but a determination that the Treaty shall fall to the ground. If it were intended as a party attack against the Government it would be comprehensible enough; but when the noble Earl says that the matter is too serious to be treated in that way, I am surprised that he should think of supporting the Resolution. I am not so much surprised at the course adopted by my noble Friend who brought this Motion forward (Earl Russell). He is perfectly consistent, for he never has been in favour of arbitration on this subject; and when the subject of arbitration was mentioned by Mr. Seward, my noble Friend replied that it was open to great objection, and would probably lead to considerable embarrassment. My noble Friend, in desiring that this Treaty should not continue, is, therefore, perfectly consistent; but I beg to remind the noble Earl opposite (the Earl of Derby) that he was the first to make a proposal of the kind embodied in this Treaty. I fairly admit that when I saw the noble Earl had made that concession to the United States, I doubted whether he had acted wisely; but I never felt any doubt about this—that the proposal having been made, this country would have to consent in some form or another to go to arbitration. I will go further, and say that I think the noble Earl was justified by the feeling of the country in the step which he took. Now, the noble Earl, in common with many others, has found fault with the Government for the misunderstanding which has arisen as to the meaning of the Treaty. He says that no one on the other side of the water could have two opinions on the matter. Last year, at all events, the noble Earl was of a different opinion. 1140 We may have been blind not to have foreseen this misunderstanding, but we have, at all events, the satisfaction of knowing that the noble Earl did not see one inch further than we did. Here is what he said about this time last year—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."—[3 Hansard, ccvi., 1864.]That does not, of course, excuse us in the smallest degree; but it might make the noble Earl more lenient in those censures which he has bestowed upon us with such lavish hand. Her Majesty's Government have laid upon the Table Papers which, in their view, contain the arguments which sustain their interpretation of the Treaty. We have always stood upon the meaning of the Treaty, and no other understanding has been either come to or attempted. The noble Earl (Earl Grey) seemed to think that we had some means by which we might satisfy the House as to the Motion which is now before us. He said that, if he could clearly understand that the Arbitrators were not to give any award upon the Indirect Claims, and were not to consider those Claims when giving their award upon the Direct Claims, he would be satisfied and would ask the House not to divide upon the Motion of the noble Earl. We are very much of the opinion of the noble Earl; but I can scarcely go with him to the full length of what he desires in reference to the matter. The Resolution calls upon the House to say that there is only one satisfactory mode of settling this question—that the Indirect Claims must be withdrawn eo nomine, and that no other arrangement must be permitted. To that Her Majesty's Government object. It is their position as much as that of any of your Lordships, that these Indirect Claims must not be submitted to arbitration; but we do not think it right that we should be bound by a Resolution of that kind. Her Majesty's Go- 1141 vernment feel the importance of bringing this business to a satisfactory and friendly close, and I ask your Lordships whether, after all that has taken place, it would be wise to lose any shred of a chance of attaining the object at which we aim. Considering the friendly temper which the American people have shown in the whole of this business—remembering how they have shown themselves prepared to take a reasonable view of this matter—it would be an undoubted misfortune if while there is the slightest chance of bringing them to a successful issue, negotiations which have been commenced with the view of bringing about friendly relations between two great nations should be allowed to fail.
§ THE MARQUESS OF SALISBURY
My Lords, in commencing the few observations which I shall have to address to your Lordships, it is my first pleasing duty to congratulate the noble Earl who has just sat down upon the restoration to him of the confidence of the noble Earl the Leader of the party among whom he sits. It has been a painful circumstance to us on this side, who sympathize with the difficulties of noble Lords opposite, that during all the discussions and interrogations that have taken place on this subject, the noble Earl the Secretary of State for Foreign Affairs would trust nobody but himself to say a word upon the subject. The noble Earl has, I am happy to say, recovered from that distrustful state of mind, and now consents to allow the Secretary for the Colonies to make an observation on the subject of the Alabama Claims. I trust that this happy change in his feelings will not be without result. I hope it may even extend—I hope it may lead him to take a more mild view of the necessities of his position, and that in some happy moment he may permit the noble Marquess the President of the Council to tell us something about the negotiations that have taken place. I feel that we owe every sympathy to the noble Earl (the Earl of Kimberley), for whose talents I have the greatest possible respect, for the silence that has been enforced upon him during discussions that must have been exceedingly interesting to him. The only possible consolation I can offer to him is that his Colleagues in the other House of Parliament have not fared any better, and that the Prime Minister and the Foreign 1142 Secretary are equally jealous of the assistance of their subordinates or Colleagues—whichever you like to term them—in discussions upon this subject. But I should be sorry if any observation of mine were interpreted into throwing any special responsibility—or I might even say any responsibility at all—upon my noble Friend the Lord President or his Colleagues with respect to these negotiations. I was sorry to trace in the speech of the noble Earl the Foreign Secretary a tendency—skilfully veiled as only he could veil it—to throw upon the Commissioners the whole responsibility for these negotiations—a responsibility which I am bound to say the Prime Minister, in the other House, manfully assumed for the Government of which he is the head. I must say that I think the Commissioners have been very hardly used in reference to this matter. Against the selection of the Commissioners I have not a word to say. There are no doubt many qualities for which my noble Friend the Lord President of the Council and his Colleagues would be highly commendable in any diplomatic negotiations they might undertake. No doubt, Her Majesty's Government were bent, above all things, upon conciliating the American people, and in that point of view they could not have made a happier selection. But if I may be permitted a criticism upon the selection, I should say that whenever the Government feels a desire in the future to employ the diplomatic talents of these Commissioners, it should be in some country other than America. I do not at all impeach their discretion in selecting one of their own body as the head of this band of negotiators; but I think that, considering the special country to which they were about to send an embassy, they might have made a more judicious selection. If I had been permitted to advise them I should have suggested that the Chancellor of the Exchequer—or, still better, the First Commissioner of Works—would have been the most fitting person to have sent on this mission. I earnestly hope my noble Friend opposite will not think these observations are in any derogation of his own qualities; on the contrary, I rather think that in many points of view, as we hear that some people are too good for this world, he was too good for this negotiation. Having said that, I confess that I approach 1143 the discussion of this subject without any very active prejudice in favour of this Treaty. I quite agree with the observations of the noble Earl (Earl Russell), that a Treaty once ratified by the Sovereign must receive the loyal co-operation of all Her Majesty's subjects, and that co-operation I am prepared to give as long as the Treaty is interpreted within its proper limits; but I do not see in this Treaty anything that is so valuable to be cherished that I would consent to part with one iota of the strict rights of the people of this country in order to maintain it. I confess that this feeling has grown upon me by what has happened since this question was discussed last year. Since last year we have had a publication of a very remarkable Canadian correspondence, in which we were informed that we were really paying for the Treaty. Summing up the balance sheet, it came to something like this—During the Civil War depredations were committed by the Southerners upon the Northerners, and by the Northerners upon the Canadians. By these depredations the people have suffered and somebody must pay. Who shall that be? Why—naturally the answer came—England must pay for both. The Southerners have committed depredations upon the Northerners—the former obtained assistance which we had no intention of giving, for they contrived to convey some ships out of our ports against our will; and now the Northerners have got the Southerners absolutely in their power, they decline to exact from them a single farthing; but both agree to say that as the Southerners contrived to steal a ship from the English, the English shall pay the whole damages of the Civil War. It is very like an arrangement between a creditor and his debtor that the latter should go scot free and his surety should bear the loss. But that is not all. The Northerners, in their turn, committed depredations on the Canadians; and one would have thought that here, at any rate, England would have been safe. Not a bit of it. Having had the privilege of paying for the damage which the Southern States inflicted upon the Northern, she is to have the further privilege of paying for the depredations committed by the Northerners upon the Canadians, and to guarantee the Canadian Railway in order to induce Canada 1144 to give up her claims upon America in consequence of the Fenian raid. I confess that when my country is presented to the world as the general paymaster of all damages which anybody may commit on anybody else, I do not feel any enthusiasm for the Treaty by means of which this charge is made. I confess the difficulty we have in assenting to this Treaty; but I feel that there is another, and a far more serious danger, which arises out of the special circumstances of this case, and it is because of this danger that I am anxious to support the Motion of the noble Earl, which I regard as being specially fitted for the occasion, and worthy of our fullest sympathy. The Motion put into plain language expresses the opinion of the noble Earl that he will have plain English—that he objects to ambiguity and equivocation. It expresses an opinion that the plainest and least ambiguous words are always the best, and that he who wilfully employs a "less accurate" term when a more accurate one is available, is guilty of tampering with the purity of truth. But we must now withdraw any such opinion, for a learned Oxford Professor—a man of undoubted character and probity, a Professor of Jurisprudence at Oxford—himself one of these Commissioners—has recently told us that it is permissible for diplomatists sometimes to employ "less accurate" rather than "more accurate" language in drawing up treaties. The Commissioners, it must be admitted, have at least this merit, that they fully acted up to the doctrines professed by Mr. Bernard. This is a danger on which I venture to insist. It is in consequence of this doctrine and the danger it involves that I urge the House to approve the present Motion. Just consider the experience we have had of this "less accurate" language which Professor Bernard approves. It was employed with reference to Indirect Claims. Now, my noble Friend Lord Derby passed a judgment which I think was at once fair and judicial—like everything which proceeds from him—on the question whether the Protocol did or did not include Indirect Claims. His opinion was—and it seems to me that it will commend itself to most impartial readers of the document—that there was extreme ambiguity in the language used—that though one might well interpret the Protocol and 1145 Treaty in favour of England, there was still extreme uncertainty in the language employed. The Foreign Secretary, on the other hand, maintained that it was as clear a document as could possibly he drawn up. But it seems to me that the document reads as though both parties were resolved to use words which should commit to nothing, but which would give them a loophole of retreat in the event of any objection being raised. The history of theology records many a formula concordiœ which left the parties to a controversy more violently antagonistic than before. Now, there is a simple test to apply to this formula concordiœ, as I venture to term it. I am told that the agreement was plain and clear, and that there was no ambiguity about it; but allow me to refer to the parallel case of the Fenian Claims. No doubt they stood on much the same footing as the Alabama Claims; but I ask whether anybody can say, after reading the Protocols of the Treaty, that the Alabama Claims were repudiated with the same clearness and distinctness as were applied to the Fenian Claims. Not a bit of it. Directly you come to the claims against England nothing can be more trenchant or clear or precise than the language employed. One extraordinary instance of the "less accurate" language of which Professor Bernard spoke is found in that part of the Treaty which refers to "claims generically called Alabama Claims growing out of" the depredations of certain vessels. Nobody defined what these vessels were—and, indeed, this extraordinary claim is absolutely unexampled in diplomacy. The phrase "claims generically called Alabama Claims" is not English, it is incapable of definition, and it is thoroughly characterized by that want of accuracy to which Professor Bernard referred. These "claims generically called Alabama Claims" were left to include the depredations of one, two, three, or any number of vessels you please. The British Commissioners, it appears, believed that only four vessels were included; but the Americans did not take so limited a view of the case; and the result of our ambiguous phraseology is that each party presses it to the utmost limits in their own interests. I believe the Americans found out 11 or 12 vessels instead of four. I must say that great credit is due to the ingenuity of the Americans in this mat- 1146 ter, and for the elasticity which they have imparted to the word "generically," when we examine the grounds on which some of these vessels are included in the indictment against Great Britain. England is actually asked to pay for the depredations of one of these vessels, because it had contrived to land its cargo unknown to the authorities on the coast of some British island, and to sell the cargo to some of the inhabitants. Nor is that the only instance of this ambiguity. My noble Friend (the Earl of Derby) pointed out in the debate of last year, the fearful consequences that might accrue to England from the use of the strange phrase "due diligence." The phrase really placed in the hands of the Arbitrators, without any reservation or restriction, the absolute determination of the whole international law by which England should be guided. Anybody who refers to the American Case will see I am justified in making this remark, for the definition of "due diligence" on the part of the Americans actually amounts to this—that they ask for damages because the English Government did not condemn vessels on evidence which would not have been fit to produce to a jury. Their contention was that "due diligence" actually included the punishment and the confiscation of the property of subjects of this realm on evidence which could not be presented to a jury. I feel, my Lords, that all this ambiguity is of special importance to us when we consider the nature of the Treaty in which we are engaged. It is delicate ground to enter upon—I know it is a delicate matter to discuss the tribunal before which we are to go; but the policy of the Government is to be blamed for the fact that it is a delicate matter to discuss freely the character and the qualifications of the men to whom our fortunes are to be committed. But it is no slight matter. The liberal estimate has been formed across the Atlantic that we may be held liable to the extent of £200,000,000 or £300,000,000, while even Professor Bernard says that £5,000,000 or £6,000,000 may not impossibly be awarded against us. Well, the British taxpayer does not take in these large sums very readily; but if the matter assumes the form of a sixpenny income tax for one year he will perceive its importance. Somebody in the spring made some calculations as to the average for- 1147 tunes of Members of this House. I dc not know whether they are correct or not; but if they and the statement of Professor Bernard are correct, the sum of £250,000 will be levied on your Lordships' fortunes. We may, I think, be excused for feeling some anxiety under those circumstances; and now I ask who are the people who will have to decide this question? Happily, I know nothing of them, and therefore it is impossible for me to say anything against them; and I am delighted to be able to assume everything in their favour. We know, however, that the Governments of Italy, Switzerland, and Brazil are to appoint the Arbitrators, two of whom will practically decide this issue. Now, what do we know of those Governments? What do we know of the men at present composing them? What do we know of their motives, their habits, their juridical education? Still more, what do we know of the men they have selected? What we have done is this—You have asked people, of whom you know practically nothing, to select other people, of whom you know less, to decide whether you shall or shall not pay in the worst contingency £200,000,000, or in the best £6,000,000. Consider for a moment how among ourselves such matters are managed. To whom are private persons in this country accustomed to submit the decision of questions affecting our fortune and our future prosperity? To the Judges of England. We know what are our securities. Their learning, character, and uprightness are known to all—they are brought up in a system with which we are all acquainted—they decide questions in the full glare of that publicity which searches out the inmost recesses of the motives of public men—we know why it is they have been selected for the judicial Bench, and the confidence to be placed in their uprightness and integrity is our proudest boast. Such are our securities in our private affairs. But though in your individual capacity you would justly resist any proposal to subject yourself to any tribunal less respected and less upright, you allow foreign Governments to appoint foreign persons of whose antecedents, honesty, and juridical attainments you know absolutely nothing, to decide whether or not you should pay an enormous sum. There are commercial men who, if it were proposed that they should pay £10,000 as 1148 their individual share of the indemnity on the determination of foreigners whose names they never heard of, and of whose qualifications they were absolutely ignorant, would resist such a proposal as the grossest outrage on the liberty of a British subject. If it is so bad to be placed at the discretion of such men on such a matter—if it is so bad to be placed at another's discretion under any circumstances—how does the matter stand when what you put before them is ambiguous and doubtful in the last degree? You are asking them to decide things which the most upright and most able Judges in the world would find it difficult to decide upon. They have to decide, in reference to the ships, whether due diligence includes the obligation of knowing that a man who buys a ship is brother-in-law of the manager of a firm which is supposed to be connected with the Confederate States. That is the question which you put before these men to decide; that is the issue on which you call upon them to say whether we ought to pay this large sum or not. Worse than that, is that the issue which you consent, under rules which will for all time bind this country, shall be decided by a tribunal from which you will be allowed no appeal. I feel that the danger of ambiguity, the danger of this "less accuracy" which Professor Bernard has impressed upon us, has been pressed upon our minds in a manner which will not suffer the most careless and the most ignorant to ignore it. It is our business to declare that this "less accuracy"—or, as I prefer to say, these equivocal phrases—shall disappear from our diplomacy for ever. We are told that the American Government cannot be asked to do plainly that which they are content to do in substance. Last year I said the United States was the spoilt child in the nursery of nations. I had no notion that noble Lords opposite would give such a confirmation to my observations, and that they would represent the Americans as children not only in the indulgence with which they are to be treated, but also in the irrationality with which they may be supposed to conduct their affairs. If they are really willing to withdraw these Claims, they are men of too much common sense to object to be asked to do so in direct words. That is the issue the noble Earl has placed before us to-night. We do not ask you to decide for or 1149 against the Treaty; we ask you to put it aside from your minds. You have one thing to determine, and that is—whether the honour, interests, and dignity of England shall depend upon honest and straightforward language, or upon vague diplomatic "understandings."
§ THE MARQUESS OF RIPON
My Lords, when I found last night that the noble Earl (Earl Russell) intended to propose to-night the Motion of which he had given Notice, I felt that he was taking upon himself a very grave responsibility indeed; but I did not anticipate that that responsibility would be so great as it appears to me now to be after the two last speeches which we have heard from noble Lords oppposite. My noble Friend the Secretary for the Colonies has pointed out the support which the noble Earl the late Foreign Secretary (the Earl of Derby) has given to views which bear on some portion of this controversy with the Government of the United States. I should have thought one so cautious as the noble Earl opposite would have abstained from taking such a course—entertaining, as no doubt he does, a full sense of the responsibility which attaches to what he may say upon a question of this description. But the noble Earl was moderate indeed compared with the noble Marquess (the Marquess of Salisbury), who did not content himself with describing the language of this Treaty as so ambiguous that it was equally capable of either interpretation; but—to my great sorrow and surprise—he thought it consistent with his duty and with that which is due to the country in the position in which this matter now stands, to make an elaborate attack upon the Tribunal of Arbitration to whom under the Treaty this question is to be referred. I do think—and I say it with great regret—that my noble Friend has incurred a responsibility the weight of which it is difficult to estimate, when he permitted himself to be carried away by that zeal for criticizing his opponents for which we know him to be so formidable into forgetting that when he was endeavouring to strike at those who sit on this side he was seriously imperilling the interests of the country. From one point of view it is easy for my noble Friend to take the course he has taken this evening, because no one doubts he has always thought that it would be a good thing to get rid of this Treaty altogether. 1150 That is a perfectly fair opinion to entertain; but if my noble Friend thought, as I doubt not he did think last year, that the constitution of this Tribunal was so bad that no man would trust it to decide upon any question affecting his private fortune, it was the duty of my noble Friend, and of those who agree with him in this and the other House of Parliament, to take that course which alone would be consistent with such an opinion, and to call upon Parliament to censure those who had concluded a Treaty open to criticism of that description. Yet even my noble Friend, with his opinion of this Treaty, will not deny it would have been one thing to have attempted to prevent the Treaty being ratified and a different thing now to destroy the Treaty if it can, consistently with the honour and interests of this country, be maintained. The speech of my noble Friend, going forth with the weight which attaches to his authority, is one which will throw upon him the greatest responsibility if the result of this debate should be that your Lordships adopt the Motion, and that it should, as I fear is too possible, bring these negotiations to an abrupt conclusion, and perhaps even put an end to the possibility of the friendly settlement of these differences. That is the main question which your Lordships have to consider tonight. It is whether it is right, patriotic, and wise for you to interpose at this moment in these critical negotiations, and attempt to tie down the Government who are engaged in them by a Resolution such as this, the effect of which your Lordships have been reminded more than once from this side of the House—and it is a significant fact that no notice has been taken of it by those who have spoken from the other—it has been declared by Mr. Disraeli, is to ask the American Government to take a course which it is impossible for them to adopt. I turn now to the observations with which my noble Friend commenced his speech, when he began by congratulating my noble Friend the Secretary for the Colonies upon being emancipated from silence, and by expressing a hope that I also should be permitted to take part in this debate. My Lords, if I have abstained from taking part in former discussions upon this subject it has been because I have been determined, as I am determined 1151 now, that not a word shall fall from me in respect of these transactions which can in the slightest degree impair the possibility of a friendly settlement of the differences between the two countries. If I had consulted my own feelings I should long ago have desired to give the fullest explanation of all these matters to your Lordships. But there are duties far higher than the defence of any individual, or even than the defence of the Colleagues with whom I had the honour of being associated with at Washington. Therefore if I have not taken part in these debates, it has not been owing to the iron rule of the noble Earl the Foreign Secretary—a rule which, if it be iron, is exercised in the gentlest manner—but to the conviction that the course I have followed was the course best calculated to promote the public interests. I must say, on behalf of my noble Friend the Foreign Secretary, to whose speech I listened with the utmost attention, that sensitive as I should have been to any imputation of blame to the Commission, I drew from the speech a conclusion totally different from that of the noble Marquess, who said that my noble Friend endeavoured, in a covert and indirect manner, to cast the blame of these negotiations upon the Commission. With respect to the Treaty, opinions of a singularly contradictory character have been expressed by those who have preceded me in the debate. The noble Earl who opened the debate (Earl Russell) told us distinctly that in his opinion the Indirect Claims did not come under the Treaty. The noble Earl on the cross-benches who followed him was of the same opinion. My noble Friend the late Foreign Secretary (the Earl of Derby) made a statement of a different character; but I think the weight of that statement must be considerably modified by the recollection of the language he employed on this subject last year, which has been referred to by my noble Friend the Secretary for the Colonies (the Earl of Kimberley). In short, the views taken by most of your Lordships with regard to the admissibility of these Claims have been in accordance with those contended for by the Government—that they cannot be admitted under the Treaty. The noble Earl who made this Motion (Earl Russell) told you there was scarcely anybody in this country or elsewhere who did not think the language 1152 of the Treaty so vague that it was impossible to say whether the Claims were admissible under it or not. But certainly that was not the opinion of the noble Earl when he, last year, took the unusual and extraordinary course of interposing himself between the signature of the Treaty and its ratification by the Crown. In the whole of the speech which he then made the noble Earl never intimated the slightest indication of an opinion that there was any doubt on the point which he says now is so very ambiguous. He was distinctly told by the Foreign Secretary what were the views of the Government on the question, and in his reply he never made any objection to the statement so made. But it is not only the opinions expressed in this country, but the opinions expressed in America, to which I would ask your Lordships' attention for a moment. My noble Friend the Foreign Secretary has alluded to some of the most distinguished men in the United States who take the view of this Treaty which the Government have consistently maintained. I will not further refer to that subject except to point out that one gentleman, Mr. Reverdy Johnson, who is well acquainted with this whole subject, who has had a large part in the transactions, and knows the matter from the top to the bottom, has given two opinions, but both to the same effect, that these Indirect Claims are not within the Treaty. The one opinion was given last year in a pamphlet, and the other this year in a letter to a Member of the House of Representatives, in which he repeats very firmly the strong opinion he had previously expressed. My Lords, there seems to have got abroad an opinion that Her Majesty's Commissioners at Washington last year relied on what has been described as a secret understanding subsisting between them and the American Commissioners that these Indirect Claims would not be brought forward. I should entirely agree with an opinion which I believe was expressed a day or two ago by a noble and learned Lord who generally sits behind me (Lord Westbury), that if Her Majesty's Commisioners had been induced by any such understanding to employ language which in their judgment admitted these Claims, they would be liable to just and severe blame. But I distinctly deny on the part of those who were engaged in these 1153 negotiations that that was the case. We may have failed, or we may have succeeded in employing language which excludes these Claims. I will not detain your Lordships now by entering into any elaborate argument on that subject, so fully dealt with in the Correspondence on the Table; but whether we failed or whether we succeeded, we were not induced to employ language which we considered would admit those Claims by any consideration of that kind, which in this Correspondence is described as a "waiver." For what occurred? On the 8th of March, as referred to in the Protocol, these Claims were mentioned by the United States Commissioners—mentioned in a manner which in substance is described in that Protocol on your Lordships' Table; and throughout the course of the subsequent negotiations these Claims were not again brought forward. We took note, and we recorded the waiver, as we held it to be, of these Claims, on the 8th of March; but we did consider it to be our duty, and we endeavoured to fulfil it to the best of our ability, to see that the language of the Treaty was not such as to include them. The noble Marquess who has just sat down (the Marquess of Salisbury) alluded to the different manner in which these Claims were dealt with in the Protocol from those which are called the Fenian Claims. No doubt the Protocol did not deal with the two classes of Claims in the same way. Why? Because the Indirect Claims were mentioned on the first day we discussed the Alabama Claims, and then disappeared from the negotiations, and were not again brought forward; while the Fenian Claims were pressed by us on various occasions on the American Commissioners. They were brought forward on three separate occasions at least—there may have been more than three occasions—and it was only at last, after discussion and frequent reference home upon the subject, that we were authorized by the Government to say that we should not press the inclusion of those Claims in the Treaty. Therefore, this argument of the noble Marquess rather turns the other way, as we persistently pressed the Fenian Claims up to a certain point when we were authorized to withdraw them; while the Indirect Claims were mentioned only once. The noble Marquess has 1154 spoken disparagingly of the language in which these Claims are defined as "Claims generically known as the Alabama Claims." The noble Marquess said that was phraseology wholly unknown to diplomacy. Now, I can, at all events, say that the phrase "Alabama Claims" had obtained, long before we ever thought of going to Washington, a technical meaning, and those Claims were under that designation included in the Treaty signed by the noble Earl (the Earl of Derby) opposite and also in that negotiated by Lord Clarendon. Whether, therefore, the phrase was known to diplomacy or not, the Alabama Claims were perfectly well known throughout the whole of the Correspondence. The noble Marquess also spoke of the phrase "want of due diligence." Now, that is a point that may very well be urged if these negotiations should break down, and it should be your Lordships' pleasure to censure those who have been connected with them; but it does not seem either wise or prudent, in the present position of matters, to engage in that discussion at present. I now turn, my Lords, to that which is the question before you to-night. I trust I have made it clear to your Lordships that Her Majesty's Commissioners and Her Majesty's Government have not relied in this matter upon secret understandings, or any understandings at all, and that we have succeeded in framing a Treaty which, in the opinion of the noble Earl who introduced this discussion—in the opinion, also, of the noble Earl (Earl Grey) on the cross-benches, and of many eminent jurists and international lawyers both in this country and in America—exclude these Claims. But whether that be so or not, it is not true to assert or to suppose that we ever thought it would be safe or justifiable to rest upon secret understandings in a matter where it was unquestionably our duty to see that the Claims we did not intend to be included in the Treaty should to the best of our judgment be excluded from it. The noble Marquess who has just sat down has stated that the present Motion does nothing but state in plain and simple language that which this country requires, and that nothing is safer than to express one's meaning in plain and unequivocal language. Well, Her Majesty's Government have repeated, over and over again, 1155 that it is not their intention that these Indirect Claims should be submitted to arbitration. But it is not always the best way to obtain what you desire from anyone with whom you may have some dispute to ask him in a point-blank or harsh way to retire from the position he has assumed, and not to endeavour to find some mode by which the views of both parties may be reconciled in a mode consistent with the honour and position of each. I do not think it inconsistent with the honour of an individual or of a country, if either has taken up an erroneous position, to retire from it; but in a private or public transaction it would be unwise, if you desired to arrive at a friendly solution, not to make the least possible claim upon the forbearance of those you have to deal with. If your Lordships have no confidence in the Government or in the declarations they have made, then you would do well not, indeed, to pass the proposed Resolution, but to adopt an honest Vote of Want of Confidence; but if you do not wish to remove from the conduct of the negotiations at the most critical moment in their whole history those charged with the grave responsibility of carrying them on, then do not, by passing this Resolution, tie their hands in a manner which would relieve them from responsibility in respect to the negotiations, and thereby throw the responsibility which ought to belong to the Executive Government on your Lordships' House.
§ THE EARL OF MALMESBURY
My Lords, I had not intended to address your Lordships on this occasion; but I do so for two reasons. First, because I am greatly disappointed at the speech just delivered by the noble Marquess, from whom the House and the country expected with great anxiety some explanation of the extraordinary management that has characterised this transaction; and, secondly, I have another reason of a personal character for trespassing on the House, as I should be sorry to be supposed to have made on a former occasion any observations derogatory to the noble Marquess's qualifications for the position of Commissioner which he had occupied, which I am not equally prepared to repeat in the noble Marquess's presence. What I meant to say, when the appointment of the Commission was paraded with so much pomp and circumstance by the Government, 1156 was that the noble Marquess was not the person I should have thought best acquainted with that line of diplomacy for which he was selected, or with the subjects he would be called upon to treat, but that there were many men in this country highly distinguished in diplomacy on whom the weight of conducting the negotiations might more fitly have fallen. When I made that remark on a former occasion, the noble Earl the Secretary for Foreign Affairs reminded me that Sir Edward Thornton was one of the Commissioners; and now I would ask whether a rumour which I have heard on good authority is correct. Sir Edward Thornton was subordinate to the Commissioners sent out; but it is said that Sir Edward Thornton pointed out to the Government the laches in the wording which made the Treaty ambiguous.
§ EARL GRANVILLE
I should like to know on what authority the noble Earl speaks of a rumour which is entirely without foundation. When such a statement is made the noble Earl ought to be prepared to give his authority.
§ THE EARL OF MALMESBURY
I do not think it necessary to name the person from whom I received the information. It is a general rumour. It is sufficient that the noble Earl says that the rumour is incorrect. The noble Marquess who has recently addressed the House (the Marquess of Ripon) spoke of the Treaty and the mode of its management. I have felt great disappointment as to the information the noble Marquess has given us. He has argued the question in just the same manner as those who preceded him. But he never informed the House of the reason of the extraordinary difference of opinion between the two Governments, and of the confusion arising out of the terms of the Treaty. Nothing can be more at variance than the understanding of the two nations with respect to the meaning of the Treaty. Sir Stafford Northcote has at a public meeting stated that the understanding between the English and American Commissioners was that the Indirect Claims would not be put forward; but now the noble Marquess who was at the head of the English Commission shrank from that point—and yet that is the very point on which the whole nation was waiting to hear something from him. We want to know what the American Commissioners 1157 said to the noble Marquess and his brother Commissioners to induce them to believe that they would not go forward with the Indirect Claims. Now, I ask how would the noble Marquess or any of your Lordships proceed in making a covenant with one of your tenants? You would begin by laying down what is not to be done—such as taking the game and cross-cropping the land, and then you proceed with the covenants. It is the same with diplomatic agreements, and such is the way in which anyone of our experienced diplomatists would have managed the matter. I feel certain the noble Earl's father (the late Earl Granville) would have proceeded in that way. It is impossible to suppose that the American Government ever believed we should pay the Indirect Claims, and the best argument against those Claims is the absurdity of them. Would Mr. Sumner or President Grant have allowed such Claims to be made upon America by any country in the world? It is impossible to suppose it. Would they have run even the slightest risk of £200,000,000 or £300,000,000 being imposed as a fine on them—thereby almost destroying their existence as an independent nation for a quarter of a century? It is so ridiculous to imagine that any free, independent, and powerful country should submit to such a peril that we cannot believe the Americans ever from the first intended that these Indirect Claims should be included. I say this with sorrow, because it shows the animus of the American Government—I hope not of the American people. If they believed the Claim was an honest one, they would have expected a decision in their favour, and they must have known that such a decision would be almost the annihilation of this country. It shows, therefore, the spirit of hostility with which they met the advances of this country. Such being their animus, your Lordships are bound to step in—not in the way of a Vote of Censure on the Government, but in the way of assisting the Government—by showing the American Government the unanimous feeling of this country, represented by both Houses of Parliament, as to our determination not to pay or even to consider these outrageous Claims.
§ LORD WESTBURY
My Lords, I never rose with less hope of effecting any good by the observations I may 1158 make; but still I beg your Lordships to weigh the gravity of the Motion now under your consideration. When Notice of this Motion was originally given, no one foresaw the introduction into the negotiations of what has been called the Supplemental Article. I believe that at the time it was a valuable mode of strengthening the hands of the Government; the Notice has been postponed from time to time, and in the meantime a new negotiation has been opened with the United States, for the purpose of adding an Article to the original Treaty, for the purpose of enabling the United States to withdraw the Indirect Claims that have been the subject of so much controversy and, on the part of this country, of so much just indignation. We are told that this negotiation has proceeded thus far—it is agreed between the two Governments that the President and Senate of the United States shall withdraw, and they are in effect bound to withdraw, the Claims they have made; but inasmuch as the Supplemental Article took the form of an additional Treaty, to gratify the people of the United States, a new consideration was raised for that additional Article—namely, a rule which shall prevail in future on the subject of Indirect Losses. We are told that the form of that rule—the words and expression of it—which I may remark are more a matter of American than of English concern—have not yet been finally agreed on, and that this question only suspends the additional Article, and prevents its coming into operation. [Earl GRANVILLE: Hear!] Now, my Lords, I am not here to modify anything that I have found myself obliged to say on former occasions, but it is unnecessary to repeat it now. If we have to go into the conduct of the parties who prepared the original Treaty and the conduct of the Government since, there might be much to say probably of a personal and stinging character, but certainly not of a profitable nature. I abstain; therefore, from that. But I wish your Lordships to feel that if you accept the Resolution its immediate operation must be to destroy the pending negotiations on the subject of the additional Article. Is it wise to do that? You have been contending with the United States that the Claims shall be withdrawn, and there is an Article drawn up for that purpose—no doubt one not 1159 framed so as to please me, or, what is of more consequence, the majority of the people. That Article, however, in its language, imperfect and insufficient as it is, is of English manufacture, and I do not think, therefore, it is just or honourable that we should quarrel with the United States for being willing to adopt the language that we have presented to them. I do not wonder that there may have been a difficulty on the part of the Government in the selection of their language. We have heard to-night one of the Commissioners who negotiated the Treaty asserting one thing—another Commissioner, Sir Stafford Northcote, has been asserting another—and a third Commissioner, a Professor at Oxford, has been reading a lecture on the use of language, particularly diplomatic language, which I think we should all repudiate, leaving it as a peculiarity of the learned Oxford Professor. I never remember our being placed in such a difficulty—but I repeat that if you destroy the Article now in progress of negotiation, this Resolution, in its destructive effects, will not rest there; it will destroy the original Treaty. Because the effect of it will be to impose on the United States a condition which it is impossible for them to comply with, and suspend the proceedings indefinitely until that impossible condition is fulfilled. Now, is this a time when, consistently with honour, reason, and profit, we can smash the original Treaty? I have no love for the introduction of uncalled-for novelties. I have no love for the authority on which the Treaty was founded. I have no love for the manner of proceeding which is pointed out in it. Remember, however, that it proceeded from yourselves. It is a twelvemonth since you received it. You received it with general acclamations. It has been hailed as inaugurating a new era in jurisprudence and in the mode of disposing of the quarrels of nations. Do you think you can now turn round and say you have found out that the Treaty is unwise, and that you will adopt a by-mode of annulling it, and escaping the fulfilment of our obligations? I, for one, am not prepared to go so far. A time may come when we shall have to criticize the making of the Treaty; but it is at present, and has been for 12 months, an accomplished fact between the two nations, and I think it is a foundation 1160 on which we may build, so as to conduct what remains to be done to a useful and profitable issue. I think, therefore, the time has not yet come when we are bound to repudiate, or are justified in repudiating, the Treaty altogether. That, however, will be the result of the Resolution. Now, go for a moment into the history of the past, in order that we may do justice both to the English and American Governments, and may see that the nature of things has in a great measure led to the difficult position in which we now are, and that there has been, and I believe exists, an honest attempt on the part of both Governments to relieve themselves from that difficulty. We accepted the Treaty. We were told by the Government that the Indirect Claims were not included in the Treaty as a subject of reference to the Arbitrators. In one sense we were told that they were, because we were assured that in consideration of our being parties to the Treaty the American Government had agreed to waive or abandon the Indirect Claims. That was the position in which things stood last year, and we remained under the conviction, until that conviction was rudely shaken, that these preposterous Claims would not be pressed. When they were put forward in the American Case, our Government remonstrated against such a proceeding, and it was, I believe, desirable to give them the assurance at that time, which your Lordships readily gave, that nothing would induce the people of this country to consent to the prosecution of the Arbitration until the power of having the Indirect Claims submitted to the consideration of the Arbitrators was distinctly and entirely relinquished. We took that course not by way of impediment to the Government, but for the purpose of strengthening their hands. I think the Government negotiated with the United States honestly and fairly in reference to that point, and they were met by the American Government, who pointed out the construction which they put upon it, and who said that they were of opinion that under the terms of the Treaty the Indirect Claims might be made the subject of reference to the Arbitration. Some confirmation was given to that view of the case by an expression which was used by my noble and learned Friend opposite (Lord Cairns), in which, 1161 undoubtedly, I never could concur. If it was now the time, or if your Lordships would have patience enough—which it would be unreasonable to expect—it would be easy, I think, to demonstrate that under the terms of the original Treaty the Indirect Claims never could be brought as a subject of reference to the Arbitrators. The American Government were called upon to concur in that view; but the President of the United States said he had no power to withdraw these Claims without the aid of the Senate. Further communication between our Government and the United States convinced our Government that it was impossible to obtain a complete and valid repudiation of these Claims except by an additional Article, binding the President and Senate to consent to their being withdrawn. Therefore it was that this Supplementary Article was framed with the view of at length putting an end to the difficulty. The manner in which it is sought to do this is—I do not know to whose ingenuity the proposal is due—that the United States appear to have been brought to consider whether such Claims as those set forth in their own Case might not be pressed against themselves at some future time in an inconvenient manner, and whether it would not be well that a new rule should be laid down with reference to such Claims which would preclude these being put forward hereafter. The mode of meeting the difficulty thus suggested is, no doubt, very ingenious. I do not quarrel with it; but I quarrel with the unfortunate manner in which the proposal has been carried into effect by our Government. The great difficulty in this part of the Case is, that if we complain of the insufficiency of the language of the Supplementary Article it will be open to the American Government to say—"Why, it is your own composition; it is the work of your own advisers. We have taken it as you presented it to us." Now, it costs some little labour and time to set out the meaning of this Article; but if your Lordships will follow me in the few observations with which I shall trouble you, you will find that the Article has reference to the statement with respect to the Indirect Claims contained in the Case of the American Government. After stating that the objections to the Indirect Claims were involved in the two propositions set forth by the English 1162 Government—firstly, that they were not included in fact in the Treaty of Washington, and, secondly, that they should not be admitted in principle as "growing out of the acts" committed by particular vessels, the Article goes on to say—The Government of Her Britannic Majesty has also declared that the principle involved in the second of the contentions hereinbefore set forth will guide their conduct in future, and whereas the President of the United States, while adhering to his contention that the said Claims were included in the Treaty, adopts for the future the principle contained in the second of the said contentions so far as to declare that it will hereafter guide the conduct of the Government of the United States, and the two countries are therefore agreed in that respect. In consideration thereof the President of the United States, by and with the advice of the Senate thereof, consents that he will make no claim on the part of the United States in respect of indirect losses as aforesaid before the Tribunal of Arbitration at Geneva.Now, I beg your Lordships to observe that this last sentence—which appears to have very little weight—derives great force if, in place of "in respect of indirect losses," we wore to read these words—"the President makes no claim on the part of the United States in regard to indirect losses in the American Case laid before the Arbitrators." That gives to the mode of expression more point and meaning. But, unfortunately, even there there is a deficiency—because the effect of all this, even if it were passed into law in the most perfect manner, would simply be that the Arbitrators would be discharged from the duty of making any award in respect of the indirect losses contained in the Case, but that the Claims in respect of those losses would not be affected. The Arbitrators would be discharged, as I have said, from the duty of adjudicators; but instead of the indirect losses being treated as altogether abandoned, they might remain as a sore subject of controversy hereafter. Now, two or three words proceeding from an intelligent mind added to this clause would have closed the door against all future difficulty; whereas Her Majesty's Government, in closing the door against one difficulty, have opened the way for another. The Arbitrators, I admit, will be discharged from the duty of making the adjudication under the Article; but, unfortunately, this country will still remain exposed to the liability of answer- 1163 ing this demand at any future time in whatever different form it may be brought forward. Still I recognize in this Treaty so much good that I should be very sorry if this House should interfere so as to prevent its coming into force. It is probable that if the United States withdraw—as I have no doubt they will bonâ fide withdraw—these Claims, we shall never hear of them again, and that the danger which I have pointed out is, after all, but an imaginary danger. We must, however, take into account that the Government of the United States have their own peculiar difficulties to contend with, and, whilst condemning the course they have pursued, confess that we are ourselves by no means free from fault, and that the ambiguity of the language of the original Treaty was not their work alone. We must recollect that this was owing to our own incapacity; and, having regard to that consideration, I think we are likely to obtain from the United States as much as, under the circumstances, we can reasonably require; and I entreat of your Lordships not to destroy this prospect, but rather to give the Government what I think they are entitled to—some further scope and opportunity of completing these negotiations. Your Lordships have already received the declaration of the Government—made, I believe, in all sincerity—that the bringing forward of these Indirect Claims is what they will never assent to. In that I believe them thoroughly, and I should believe them if it were only out of the natural instinct of self-preservation, because they know, and it is unnecessary to repeat it, that if there were the smallest kind of a vestige of trembling or hesitation in their conduct, or if a notion were to be entertained in England that they meant to give way to any further demand of America, the existence of the Government as a Government would not continue for 24 hours. What, my Lords, will be the consequence of your adopting the Resolution proposed by the noble Earl? The result will be to shut up this Treaty? How will it be possible to get on? The Ministry did their utmost to get on, and they found it impossible to do so without adding a new Article to the Treaty. In fact, that which the Commission ought to have done at first by inserting a few words excluding those Indirect Claims, after 1164 months of anxiety and labour they now propose to do by the substitution of this additional Treaty. My Lords, I am glad that we have arrived at something definite; for up to the present time we have had a series of understandings in which nothing has been understood—a series of explanations in which nothing has been explained. I welcome, therefore, any sign of certainty in our position. That position I have attempted to define. You have now, I think, a reasonable assurance that what ought to have been in the original Treaty is now effected by the Supplementary Article. Better late than never:—but now that it is to be added, and added in honesty, I think it would be unreasonable, I think it would be impolitic, I think it would be—I can hardly call it dishonourable, but, at all events, scarcely a creditable thing—to refuse to wait and see what is to be done by this Supplementary Article. If, however, your Lordships should take a different course you will do so with the full knowledge of a great responsibility, and that you will be putting off to an indefinite period of time a settlement of a question which, for the sake of the commercial interests of both countries, I believe it to be all-important to settle. I think the American Government will be then fully authorized in treating the violent irruption of this House as an unfortunate circumstance in the present position of the relations of both countries. I cannot, therefore, bring my mind to vote for this Motion. The Motion may, no doubt, in its strict sense be regarded as an innocent one, because it leaves the Government still at liberty to continue the negotiations; but the words are sure to be taken as implying more than they would usually imply, and I think, if this Motion is carried, that it will be impossible for Her Majesty's Government to conduct further proceedings in this matter with any chance of guiding them to a profitable conclusion. I therefore hope your Lordships will abstain from passing the Motion of the noble Earl. What you wanted to get, and what was properly required at the time the Notice was given, was a declaration by the Government that nothing should induce them to be forgetful of the honour and interest of this country, so far as to entertain these Indirect Claims. Of that you are now well assured, and there- 1165 fore no necessity exists for the Motion, unless you are satisfied that the proceedings between this country and America are a sham, and that they are conducted by the Government in such a manner as to afford no reasonable chance of a prosperous and successful conclusion. If your Lordships pass this Motion, I believe it can have but one effect—namely, be productive of mischief to the real interests of the country, and of unnecessary embarrassment to Her Majesty's Government in the settlement of this question.
THE EARL OF ROSEBERY
said, he must apologize to their Lordships for venturing to interpose between the House and the noble and learned Lord (Lord Cairns); but he was anxious to remind their Lordships how momentous in its consequences was the vote which they were called upon to give. The noble and learned Lord who had just spoken (Lord Westbury), in the course of those precious balms with which he was accustomed to break the head of Her Majesty's Government, while he was of opinion that the time might come when the Treaty itself and the conduct of the Government in the negotiations could be fully criticized, nevertheless expressed his opinion that their Lordships were bound on that occasion to support Her Majesty's Government. On the other hand, the noble Earl (Earl Russell) proposed a Resolution, by the acceptance of which their Lordships would not only pass a Vote of Censure on the Government, but, in point of fact, they, a legislative Body, would intervene between two high contracting parties in the course of negotiation, and would dictate in a most imperative manner the course each party should take. They would, in effect, say to Her Majesty's Government—"You are not to proceed to the Arbitration at Geneva under certain circumstances," and to the American Government—"We will not meet you there unless you take the particular course we point out." That was the position he desired to bring distinctly before their Lordships before they went to a division. Was that the way to treat a high-spirited nation? Let any one of their Lordships imagine himself under such circumstances in the place of an American citizen—and, to make the case more extreme, in the place of an American citizen who disapproved these Indirect 1166 Claims, and of President Grant's administration. Would he not say—"I cannot approve the course our Government has taken; but if you ask me whether we will submit to the dictation of another Government—and not even to another Government, but to a single House of Legislature—if we are to have a pistol held at our head, and then ordered to give up these Claims—I say rather let us insist on every jot and tittle of the Claims rather than withdraw them." The dictation which this Resolution contained could only have the effect of depriving us of sympathy and assistance; for all Americans, whether they believed the Claims to be just or not, would feel themselves bound to uphold them if it was attempted to procure their withdrawal at the dictation of a foreign Power; and he trusted that under similar circumstances there was no Member of their Lordships' House sufficiently unpatriotic not to pursue the same course. Let him remind the House that in 1858 the Conspiracy for Murder Bill was brought forward by the English Government. Its provisions were not objected to, but it was thrown out by the mere rumour that it had been introduced at the suggestion of a foreign Power, and that it would be acceptable to the Emperor of the French; and yet it was now proposed that we should take a somewhat similar course, and attempt to dictate to another nation the course they should pursue: and he felt certain that it would produce a similar effect upon the Americans that the hint of French dictation then produced upon us. It would be remembered by many of their Lordships that the present Leader of the Conservative party, in reference to a measure under his charge, once said to the House of Commons—"First pass the Bill—then turn out the Ministry." That he firmly believed to be the feeling of Her Majesty's present Government. What they desired, he felt convinced, was that the Treaty should first be passed and then that the Government should take its chance. He did not admire the position of the noble Earl who had brought forward this Resolution with regard to this question. Considering that the acts of the Alabama and other vessels, out of which these Claims arose, took place while the noble Earl (Earl Russell) was Foreign Secretary, this Motion would have come with 1167 a better grace from anyone rather than him. No one knew better than himself the difference in their relative positions. He well knew the humble position he occupied in their Lordships' House. He well knew that the noble Earl addressed them with all the weight of his great experience, all the lustre of his historic name, with all the prestige of a former Prime Minister. But, knowing all this, he could honestly say on this occasion, and as regards this debate, that he preferred his own insignificance to the eminence—the mischievous eminence of the noble Earl. It was easy enough to pass Votes of Censure. During the few years he had sat in that House, the annual Vote of Censure had come round as regularly as the hands of the clock. But it was not every day they had an opportunity of destroying a Treaty. They should make no allusions as to the course they were preparing to adopt. If they passed this Motion, they might, or might not, affect the position of the Ministry. That, he believed, the Ministry, in face of the greater danger, would be the first to consider of little consequence. But the Treaty could not exist another instant. They, by their votes, would have done that, of which it was easy, though painful, to see the beginning, but almost impossible to see the end. They would have stamped out the last vestige of a Treaty; they would have blistered instead of healing an open sore; they would have disturbed, perhaps permanently, the good relations between the two countries. He implored, then, each noble Lord, as he recorded his vote, to pause in face of the responsibility—the tremendous responsibility—which he was about to assume.
§ LORD CAIRNS
My Lords, I am sure there is not one of your Lordships who thinks any apology was due from the noble Earl who has just sat down (the Earl of Rosebery) for interposing in this debate. With much that he has said I cannot agree; but I am confident there is nothing which can add greater weight and acceptability to the debates in your Lordships' House than that we should have partaking in them from time to time Members who have the advantage of being younger than those who sit upon the front benches. The noble Earl will, however, excuse me for saying that I think he has somewhat misunderstood the situation of the case 1168 when he speaks of "dictation" on the part of your Lordships to the United States—when he assimilates the present question to a question with regard to the enactment of a municipal law in 1858—and, above all, when he speaks of the vote of your Lordships' House tonight as a vote which could possibly endanger the cordial relations of the two countries. My Lords, it is now about six months since the people of this country became thoroughly alive to the gravity of the question of these Indirect Claims, and we are now here discussing the manner in which, after this lapse of time, these Claims are to be dealt with. Up to the present time there has been great reticence—the Government admits it—very great reticence on the part of your Lordships. I think it can be easily explained. Declarations on the subject have from time to time been made by Members of the Government—statements were made at the commencement of the Session, and more than once since then, in answer to Questions put to the Government—I do not profess to have before me the words which have been used by Members of the Government; but I think I am right in saying that the impression which the declarations of the Government conveyed to the mind of the country was this—that the Government were prepared, in their negotiations with the United States, to maintain the position that the Indirect Claims must be withdrawn from the Arbitration at Geneva. As long as this state of things continued—as long as we were invited to rest on these assurances—as long as we were in ignorance of the process or the precise form the negotiations were taking—it was the constitutional duty of your Lordships' House to remain silent and to wait for the regular and constitutional occasion which would arise for pronouncing an opinion upon the result of the negotiations, as soon as that result was made known. But the position of things is now altogether changed. It is no longer a matter of obscurity with regard to these negotiations—but by a singular series of circumstances such as have probably never occurred before, we are now told that the negotiations upon a point which interests us most particularly have come to an end. We have had laid upon our Table a draft Supplementary Article which is to regulate the position of the 1169 Arbitration at Geneva, and we were informed last night by the Prime Minister that there was at this moment no controversy between Her Majesty's Government and the Government of the United States with regard to that part of the Supplementary Article which provides that the President of the United States will make no claim before the Arbitration at Geneva in respect of the Indirect Claims. I ask your Lordships to consider the position in which you are placed. Under ordinary circumstances you would not have been told of any agreement with the Government of the United States until it had been signed in the ordinary way; but now we are told what is the exact proposition that has been made to the United States by Her Majesty's Government, and that with regard to this proposition there is now no negotiation pending. If you are satisfied with the bearing of this Supplementary Article upon the Indirect Claims, and the immediate arbitration pending at Geneva, by all means express your approval of it by your vote; but if you are not so satisfied, then I warn your Lordships that this is the only opportunity of expressing your opinion to that effect. Once you let the Article be duly signed, you cannot in fairness, as between man and man, turn round upon the Government and express disapproval of it. I do not look upon this Motion as a vote of confidence, or of no confidence in the Government, or as an attempt to interrupt the cordial relations between England and America:—it is an appeal to your Lordships—the result of accidental information and facts that have come to be known—to say whether you approve of the Supplementary Article or not. I must also say that I demur entirely to the view of the noble Earl who has just sat down when he said that the Motion was an attempt to break down the Treaty. On the contrary, it is an opportunity open to you of informing the Government of your views on this Article; the Article can fall or stand independently of the Treaty, and if it fall—or if it should not be ratified—it will lead to no other result than the substitution for it of another Article more clear, more satisfactory, and free from the danger and reproach cast upon this one even by the noble and learned Lord opposite (Lord Westbury), when he said that if it shut the door on one 1170 source of quarrel, it was only by opening the door to another.
And now I desire to make a few remarks which it appears to me ought to be borne in mind when we are forming an opinion on the great subject of these Indirect Claims. I am not going to say a word about the composition of the Commission or the acts of the Commissioners; for I think the Prime Minister took a just view of the case when he deprecated the idea that responsibility rested on any one except the Members of the Government. Indeed, it is perfectly well known that the Commissioners were in constant communication with the Government by means of the telegraph, and that every word and every sentence which found its way into either the Treaty or the Protocols was duly and properly laid before the Cabinet. There are, however, two subjects which I ought to refer to before I pass from this part of the question. My noble Friend behind me the late Foreign Secretary (the Earl of Derby) has more than once stated in this House that he thought it was a mistake to send a Commission to Washington at all, and I think that circumstance will explain much of the difficulty which has arisen with regard to the Treaty. I remember one sentence of the noble Earl opposite (Earl Granville) in which he described the position of the Commission at Washington. He was speaking of the course taken in the United States under the Commission, and he said on the 12th of June last year—In considering several of those questions, Her Majesty's Government felt that there would be a great responsibility 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. "—[3 Hansard, ccvi. 1847.]There can be no doubt of the peculiar and intense difficulty in which the Government was placed by the necessity sity of preventing, at almost all hazards, the Commissioners returning home without having effected some purpose. Another point worthy of attention is the view of one of the Commissioners, Professor Bernard, who has since told us that the position of the negotiators of a Treaty is very peculiar, and he implies that when we deal with any ordinary subject in daily life we may have the benefit of professional advice, and can use 1171 precise and accurate language, but that when we make Treaties we must consider ourselves almost destitute of advice, not having even the family solicitor—by which I presume he means the Law Officers of the Crown—to consult, and that, consequently, we are at liberty to use "less accurate" language than we otherwise should do. Well, in my judgment, these two circumstances account for a great deal of what afterwards occurred. Now, let me point out what did afterwards occur in regard to this Treaty. I quite agree with the noble Earl the Secretary of State that it is an unfair thing to pick holes in a Treaty after it has come into operation, and to raise objections to it which were not advanced when it was first presented to the country. Therefore, I shall make no objections to the Treaty which I did not make before it was ratified. There is an Article in this Treaty with reference to arms and munitions of war—it is the second Article—and the moment the Treaty reached this country, I pointed out in your Lordships' House that this Article might be fairly considered as prohibiting a neutral from allowing dealings in contraband of war. It happened that at that particular time a controversy was going on with the Government of North Germany as to whether this country had discharged its duty sufficiently in preventing the export of contraband of war. Well, this view of the Treaty with the United States did not strike me alone, for on the same evening Sir Roundell Palmer interrogated the Prime Minister on the subject in the other House. The right hon. Gentleman (Mr. Gladstone) has since asserted that our Government never proceeded upon "understandings" with regard to the Treaty, and I wish, therefore, to call your Lordships' attention to what he said in reply to Sir Roundell Palmer's Question. The right hon. Gentleman stated that he had communicated with Lord De Grey, Sir Stafford North-cote, and Mr. Bernard, who all gave the Government the fullest assurance that the "understanding" was that the United States did not understand the Article to refer to contraband of war, that this "understanding" was shared in by General Schenck, but that Mr. Fish thought the two Governments should make a joint declaration in order to place the meaning of the Article beyond all chance 1172 of misconception. Almost, therefore, before the ink of the Treaty was dry, it occurred to everyone who saw it that the second Article was open to the gravest doubt—that it could not mean what the words apparently signified; and the Prime Minister rose in his place and signified that by these "understandings"—by the "understanding" of the Government, of the United States representative, and of the President—by this triple understanding, the meaning of the words was to be arrived at; and that Mr. Fish was so impressed with the ambiguity of the matter that a joint declaration on the subject was highly desirable. I took the liberty of suggesting that the opinion of the Senate should also be obtained; but I am not aware that that has been done.
Well, let us pass to the next point in the Treaty. When Her Majesty's Government sent this Commission to the United States, they furnished them with certain Instructions, and told them—"There is one thing you must do. There are many British subjects who have claims arising out of the war, and we have made it essential that any settlement of our disputes with the United States must include those claims." Accordingly an Article was inserted in the Treaty to the effect that British subjects were to be entitled to bring their claims arising out of the Civil War under the arbitration provided for by the Treaty, if the claims arose prior to the 9th of April, 1865. Now, what happened under that Article? There was a firm of British subjects who came to me and said—"We have a claim arising out of the Civil War, and we are required to assert our claims under the Treaty;" but when they came to examine the Treaty they found that the Treaty said that the claim must have arisen before the 9th of April. Their claim, they said, was for the burning of a certain warehouse on the 11th of April, 1865. I said to them that probably that was after the war was over. They replied—"Nothing of the kind." I asked them if they were quite sure. They replied they were quite sure, because the Supreme Court of the United States had declared that the war did not terminate until the month of August; and not only that, but there was an army of General Johnson in the field till the end of April or beginning of May, when the Con- 1173 vention was made under which it surrendered. I asked the Foreign Secretary a question on the subject, and he said that the arrangement with General Lee in the month of April had been taken as the termination of the War. But it was not the termination of the War. Yet this date was fixed as the necessary term for filing the claims of British subjects arising out of the War. So that the moment the Treaty was made known it was seen that there were claims of British subjects not provided for.
Well, what comes next? We are told by the Government that there was one great thing accomplished by this Treaty—that rules had been provided for the future which were to define the duties of neutrals, and to govern controversies which might arise with regard to the performance of those duties. And we were told that these rules were not to stop as rules between us and the United States, but other Governments were to be asked to adopt them. It is not necessary to refer to these rules, because the whole of the rules turn upon these words, and were all governed by this general expression—"A neutral is bound to use due diligence" in doing certain acts. That is the governing clause of the whole of the rule—everything depends upon it—everything turns upon it. I took the liberty of saying to the Government that the rule will not define anything. "A neutral is bound to use due diligence"—it expresses nothing; it explains nothing. I dare say many of your Lordships have read an amusing part of a very dry book, written by the late Archbishop of Dublin—Archbishop Whately. It is the part of his book on "Logic" in which he treats of "Fallacies." He says there is nothing so fallacious in argument as using sentences in which you define one expression by using its equivalent; and he adds there is no language so calculated to lead one into these kinds of traps as the English, because, coming from the Saxon and the French, you can easily get two words which are nearly equivalent. Examples might readily be given, as "Every man ought to have the liberty to which he is entitled." That does not say much—but "A neutral is bound to use due diligence." What does that mean? Does it mean more than this—"A neutral is bound to use the diligence he is bound to use?" That is the great rule incubated 1174 upon by the Commissioners for three months at Washington, and that is the sum total of it! A neutral is bound to use the diligence he is bound to use! You cannot make much of that rule when you come to apply it. And what has happened? The result has been as ludicrous as it could have been imagined to be. The British Government and the United States Government are as wide as the Poles asunder regarding the meaning of the rule. Here are two great countries, both speaking the English language, who have exerted their ingenuity to compose this small sentence, and there is not an approximation to agreement as to what the effect of it is. The United States Government understands that the diligence which is called for by the Treaty of Washington is due diligence—that is, they say, diligence proportioned to the magnitude of the subject, or commensurate with the emergency—diligence commensurate with the magnitude of the evil which is created if the diligence is not used. The English Government, on the other hand, say—and I consider it to be a much more reasonable proposition—that due diligence means that kind of diligence which the neutral Government can use consistently with its own laws and constitution—that is—all that you can require of a neutral is that it should have reasonable municipal laws, and that it should enforce them. I agree with that; but it is as different from the proposition of the American Government as two propositions can be. Observe the consequences of the different meanings attributed to the rule. You may go to Geneva—and you will not get a definition as to the meaning of the rule—the next arbitration you have under this rule will give rise to exactly the same difficulty. But that is not all. I should like to see the Foreign Government to whom you would go and present this rule for adoption. You and the American Government will go together—for example, to the Government of Germany—and tell that Government that here is an excellent rule for the conduct of neutrals, and ask them to adopt it. Well, I suppose the Germans would say, "We do not understand English, but you do—tell us what it means." The Americans will give one definition, and we will give another. The German Government will then say—"The rule, no doubt, is a very good rule; but you had 1175 better go home and agree about the meaning of it—when you have, come back and we will see about it."
But I must mention another subject, and a very serious one. The noble Earl opposite (Earl Granville) said he regretted very much that the Fenian raids were not provided for. But the Instructions to the Commissioners were that they were to be provided for. Accordingly, our Commissioners proposed to the American Commissioners that they should be dealt with. If the noble Earl regrets they were omitted, why were they omitted? If he regrets their omission, he is of opinion they ought to be included. The only information we have with regard to their omission is found in the Protocols. If ever there was a case in which insult was added to injury, it was in the treatment of these Canadian claims. The American Commissioners were not instructed to entertain them; we simply expressed our regret; and the Commissioners did not feel justified in entering upon the consideration of any claims not contemplated by the instructions of the United States Commissioners. What followed? "The British Commissioners would not urge further that the claims should be admitted, and had the less difficulty in doing so as a portion of the Claims were of a constructive and inferential character." A slur was thus thrown over the claims of Canada by the English Commissioners, who say they have the less hesitation in throwing them over, "because a portion of them was of a constructive and inferential character." The matter does not end there. The Dominion of Canada, when the time came for applying to Canada to pass the necessary Legislative Acts to give effect to other parts of the Treaty—the Dominion said "We will not do that"—they considered themselves so badly used in not having their claims provided for; and then they say this—in which the British taxpayer has no slight interest—the Dominion say "There is a mode by which our hands will be strengthened, and we shall be able not only to abandon our claims on account of the Fenian raids, but to pass the measures necessary to give effect to other parts of the Treaty—that is, by your giving us an Imperial guarantee to enable us to procure the construction of certain public works which will be highly beneficial to the United Kingdom as well 1176 as to Canada." The result of the whole is, this country is to be asked to guarantee a Canadian loan of £2,500,000—a guarantee which, of course, implies the giving to Canada the advantage of £50,000 a-year in raising a loan at lower interest, an advantage which will be duly counterbalanced by its effect on our own National Debt; that is, we not only run the risk of paying the United States sums we ought not to pay, but we absolutely undertake to pay Canada what ought to be paid to the Dominion, not by us, but by the United States.
This leads me, my Lords, to the consideration of these Indirect Claims. Let me first, in order to avoid misunderstanding, state my own opinion as to the merits of these Claims. I consider them, my Lords, to be absolutely preposterous. I cannot conceive that any Tribunal would for one moment entertain them. They are, as a ground for demanding a money payment, wholly without precedent or reason. I believe that the people of this country never for one moment believed that they were included in the scope of the reference to Arbitration. I believe that the Government—I accept their assurance implicitly—never intended that they should fall within the scope of the reference to Arbitration. But, my Lords, that is not the question. The question is, are they excluded from the reference so clearly that the Tribunal of Arbitration will be unable to pass judgment upon them; and are we to be left to the chance of whether the Arbitrators will decide that they are within the scope of the reference or not? The noble Earl (Earl Granville) asked me last night whether I adhere to the opinion I expressed last year?
§ EARL GRANVILLE
What I asked was whether the noble and learned Lord would rest his judicial character on the statement he then made?
§ LORD CAIRNS
I will accept the challenge of the noble Earl; but I must first ask him whether he has one view of the construction of a document in one place, and another view of it for another place. My Lords, I do not pretend to have any judicial character—as the noble Earl terms it—to be rested on any foundation but the honest expression of an honest opinion; but, on the other hand, I know no view as to the construction of a document to be taken on the judicial bench which should differ from that to 1177 be expressed in your Lordships' House. I know the great and inestimable advantage which a Judge has of having a case argued before him. That advantage we have had on the present occasion. We have had conflicting views as to the construction of the Treaty fully before us; and now I tell the noble Earl that I can accept no compliment as to judicial character, accompanied, as it is, with a sneer that I am capable of making a construction of a document in one place differ from that I should give in another. My Lords, I will tell the noble Earl something more. He says he talked with a very learned Judge—a man, he says, of great reputation—half-an-hour before he entered this House, who said that the Indirect Claims were clearly inadmissible. My Lords, I have no doubt they should not be admitted—I believe no Judge would say that these Indirect Claims could be admitted for a moment:—but that is not the question—the question is, whether the hands of the Tribunal at Geneva are sufficiently tied and bound so that they are not the Judges to say whether these Claims are to be admitted or not? That is what we want to know—that is what my noble and learned Friend who spoke last but one (Lord Westbury) put very fairly. He said, with regard to the Supplementary Article, that we have now to do what the Commissioners ought to have done if they had understood their business—that is to say, to have added an Article to exclude these Claims. I agree that the Claims are preposterous, and that the country and the Government never meant to entertaim them. But the question is, should we be satisfied with this Treaty, that it has left nothing in doubt? The noble Marquess the President of the Council taunted the noble Marquess behind me (the Marquess of Salisbury) with having thought it consistent with his duty to make observations which were highly in favour of the American view of the case. I dare say I shall be taunted perhaps in the same way. But I will tell the noble Marquess what I consider consistent with my duty. I consider it consistent with my duty to speak the truth, and I do not care whether it chimes in with the views of the Government of the United States or the Government of this country. I go further and say that in my belief our best 1178 course with the United States would have been not to insist, as the Government have insisted, that the construction of this Treaty is free from all ambiguity—the Government never made a greater mistake than when they went to the United States in the first instance and said to them—"You are making claims not only against all principle, but in flagrant opposition to the Treaty." I say generous and high-spirited men could not have endured language of that kind without making a contest and struggle against it. Now, I tell the noble Earl my view about the construction of this Treaty. The Prime Minister says there is no ambiguity—that no sane person could have ever entered into a Treaty which had such a construction as America had put on it. The noble Earl himself, I believe, in his despatches uses language equally strong in regard to the construction of the Treaty. One of the Commissioners has told us they were responsible for having represented to the Government that they understood a promise to be given that these Claims would not be put forward by the United States; and to-night the noble Earl said that on a particular day the Government received a communication from the Commissioners saying that the Claims were not to be put forward. What is the meaning of this? Why were the Commissioners to write to the Government and say that a promise was given that these Claims would not be put forward if the Treaty was free of ambiguity? The two things cannot stand together. Take which you like—the Treaty is unambiguous—or admit that it is not clear and rest on the promise given by the Commissioners; but you cannot have both. I hold it to be a general principle that if you refer any breach of duty to the decision of a tribunal, as a matter to be atoned for by damages, that tribunal, unless you tie up its hands, will have a right to say what is the amount and what is the nature of the damages which can be claimed. Reference has been made to the Convention concluded with Mr. Reverdy Johnson, and as that document throws a light on the matter, I ask your Lordships' attention to it. I ask, what was the Convention which Lord Clarendon and Mr. Reverdy Johnson agreed to? The leading sentence is very remarkable. It states that the High Contracting 1179 Powers agreed that all claims on the part of citizens of the United States on the Government of Her Majesty, including those generically called the Alabama Claims, should he referred to four Commissioners. The Convention spoke of all claims on the part of "citizens" of the United States; but there was not a word about the claims on the part of the Government. However, considerable dissatisfaction was manifested across the Atlantic with the Convention, and on the 25th of March, 1869, Mr. Reverdy Johnson wrote to Lord Clarendon, stating that the Treaty, the carrying of which into effect was important for the tranquillity of the relations between the two countries, could not be put in operation without the consent of the Senate of the United States. He then went on to say that his Government believed that it had claims of its own, on account of the fitting out of the Alabama and other similar vessels, and, as the Convention would not meet those claims, he proposed that the Treaty should be altered so as to include all claims on the part of the Government as well as on the part of the citizens of the United States. That is to say, Mr. Reverdy Johnson intimated that it was considered in America that the claims of the Government were not included in the Convention, and he therefore suggested that the Convention should be altered.
THE DUKE OF ARGYLL
here handed a document to the noble and learned Lord, and asked him to read the second paragraph of the first Article of Mr. Reverdy Johnson's Convention.
§ LORD CAIRNS
The second paragraph says—The Commissioners so named shall meet in London at the earliest convenient period, and shall before proceeding to business make and subscribe a solemn declaration that they will impartially examine into all such claims as shall be laid before them on the part of the Government of Her Britannic Majesty, and on the part of the Government of the United States.Is the noble Duke so simple as to suppose that, after a specific and limited reference to Arbitrators of the claims of individuals eo nomine, the form of the declaration of office, to be taken by the Arbitrators, can enlarge the scope of the reference? Heaven preserve the country from such negotiators! Lord Clarendon submitted the proposal of Mr. Reverdy Johnson to his Colleagues; but they repudiated the idea, and the matter dropped. If ever 1180 there was a beacon to avoid a rock, surely that was one. All these documents were before the Commissioners, and what did they do? This is the reference they agreed to—In order to remove and adjust all complaints and claims on the part of the United States"—not a word of individuals here—"and to provide for the speedy settlement of such claims which are not admitted by Her Majesty's Government the High Contracting Parties agree that such claims shall he referred to a certain tribunal.There the very thing is done which Lord Clarendon would not do. I have read between 20 and 30 pages in The London Gazette of the noble Earl's argument to show that the Indirect Claims are excluded from the present Treaty; and I think that the noble Earl will agree that I am summing up the case fairly when I state that the points on which he relies are three. He says, first, that in the process of diplomatic correspondence there have grownup a certain number of difficulties, which have become known as "the Alabama Claims;" that they never were understood to include the Indirect Claims, but were confined to direct claims, and the reference of the Treaty was to all the claims generically known as "the Alabama Claims." Now, against that you must set the change in the form of reference to which I have referred. May not the Americans say, very naturally in, their arguments—"What was the reason for this change in the form of reference if it was not meant to extend the scope of reference with regard to the Claims?" But besides this, the noble Earl himself last year in this House described the Alabama Claims as having come to include the wildest and most untenable claims which had been made by the United States. And, further than this, the Treaty confessedly goes beyond the claims of individuals, for the Protocol of the 4th of May specifies the expenses of the American cruisers in pursuit of the Alabama. The next argument of the noble Earl is, that the Protocol of the 4th of May contains a waiver by the American Government of the Indirect Claims. I wish I could find it to be so; but I do not find that the American Government waived anything. The American Commissioners simply said they wanted us to give them a lump sum, and in the hope of our doing so, they would not estimate for the present the amount of the Indirect Claims. After 1181 referring to the indirect injury accruing from the transfer to the British flag of a large part of the American mercantile marine, enhanced rates of insurance, the prolongation of the War, and the large sum necessarily required for this and for the suppression of the rebellion, the Protocol says—In the hope of an amicable settlement (meaning the payment of a lump sum) no estimate was made of the indirect losses, without prejudice, however, to the right of indemnification in the event of no such settlement being made.In this I can see no waiver whatever. I have no fault to find with the manner in which the noble Earl conducts the argument on this point in his correspondence—the whole of his case on this subject is stated by him with great fairness. The noble Earl's argument is that the waiver of the Indirect Claims in the event of the "amicable settlement" referred to by the American Commissioners was a waiver which applied to any form of amicable settlement, and therefore applied to the form proposed by the British Commissioners and accepted by the United States. That is the whole argument on this part of the case. The American Commissioners, in the hope of an amicable settlement by the payment of a gross sum, made no estimate of the indirect losses; the British Commissioners declined such a mode of settlement, and Her Majesty's Government maintain that the Americans were bound not to put forward those Claims, whatever the form of settlement. Now, I must say that this is an argument on which I, for one, hold that we cannot safely rely. The third argument struck me much at first, and I was disposed to think it was conclusive. It is this:—The Treaty provides that the Commissioners at Geneva are to take up the case of each particular ship, and say as to each whether the British Government was or was not guilty of negligence; and then, if the Commissioners do not award a gross sum they are to send the whole question of damage to another Commission at Washington, which is to deal with each particular ship and find the damage arising in each case. Consequently, argue the Government, how would it be possible to deal with claims for the prolongation of the War, the enhanced cost of insurance and so on, and to allocate a particular portion to each parti- 1182 cular ship? I thought that first a very good argument; but, unfortunately, the Prime Minister has cut it from under our feet. He has said we have admitted that there must go before the Arbitrators at Geneva the question whether we are liable for the cost of the American Navy—that is to say, the cost of the pursuit of the various cruisers which are said to have left this country, which, I believe, is pretty much the cost of the whole American Navy, for the Navy was not doing anything else. I was appalled when I heard that statement. I have read the Treaty, and the Protocols, and I do not see a word in either which amounts to an admission on our part that this is a claim which ought to be entertained by the Arbitrators. What I find is this—that in one of the Protocols the American Commissioners said on their own authority that they thought the expense of the Navy in pursuit of the cruisers was a direct claim, which ought to be recognized as such. No notice was taken of that; it was not assented to by our Commissioners. I believe these Claims to be just as preposterous as any other claims. Suppose we were guilty of breach of duty as neutrals—why, after paying 20s. in the pound to every person who has suffered in consequence, should we be called on to submit to pay the expenses of American ships in pursuing cruisers which they never saw? But if the Prime Minister is right—if these Claims are to go to the Arbitrators, there is an end to the argument that nothing is referred to Arbitration beyond the special damage done by each particular ship.
My Lords, let us manfully look the question in the face. Let us admit that these are matters of great gravity. The noble Earl (Earl Granville) wants to know whether I am of the same opinion which I have already expressed with respect to the ambiguity of the Treaty;—and my answer is that I see nothing in it to prevent the Arbitrators from being the Judges whether these Indirect Claims are to be entertained or not. I must express the regret which I feel that the Government did not take the right course in this matter. I think the Government, when this question sprang up, ought never to have raised a controversy as to the construction of the Treaty. I think they ought to have said to the Government of the United States:—"There is not the 1183 least use in our arguing about the construction of the Treaty because such is the nature of the case in a difference between two nations that no one can decide the point at issue. What, then, is the use in arguing about it? We see you have put on the Treaty a construction to which we do not think it is open. Let us not dispute about it. That will only lead to irritation, strengthen us both in our respective views, and occupy a certain number of pages in a Blue Book. We give you our words as men of honour that we never intended these Claims should be referred to Arbitration. Without, therefore, entering into any controversy on the subject, let us not go on with the Treaty; let us not spend our time or try our tempers in arguing points of construction; let us enter into a separate engagement which will place the matter beyond all doubt; but these are Claims to which we never intend to submit." That is the course which the Government ought, I contend, to have taken very early in this matter. Bear in mind the dates. I believe the first copy of the American Case was furnished to the Foreign Office on the 17th of December, and that 12 additional copies were supplied on the 19th of that month. We all know that the noble Earl opposite was suffering from illness at the time; and I am sure there is no one among us who would impute to him that there was any unnecessary delay on his part, or who does not sympathize with him in the position in which he was placed. That, however, is not the question. I do not know whether many of your Lordships have looked at the Case of the American Government. There is an old saying which is applicable to it, to the effect that he who runs may read You could see from the very title-page of their Case that they were making these Claims. And who were at the Foreign Office at the time? There was Lord Tenterden, who, as the noble Earl said, was one of the very few men in England who were thoroughly acquainted with this question. There was also Mr. Hammond at the Foreign Office;—and I confess I can hardly believe that when Lord Tenterden or Mr. Hammond opened the first copy of the American Case either could have failed to see in the course of five minutes that the United States Government were making those Claims—Claims, the surrender of which was pro- 1184 claimed by the noble Earl opposite to be the price of the Treaty. A month after this—on the 18th of January—the Cabinet sat; and although I can imagine that the falling of a bombshell could scarcely have created greater surprise and consternation among them than the American Case, yet some considerable time was allowed to elapse before anything was done, although the matter lay on the surface. The question was one not so much for the Law Advisers of the Crown as for the Ministers who had negotiated the Treaty, and who had informed the country that its price was the surrender of the Indirect Claims. Well, January was not very far advanced when the Press got hold of this question. The various newspapers then began writing very forcible and strong articles with respect to it, expressing with great moderation, but at the same time with great firmness, the course which it became the duty of the country to take. Then came the meeting of Parliament, when a declaration was made by the Prime Minister, who committed himself to a statement which gave great offence across the Atlantic, and which was to the effect that nobody with any sense could have entered into a Treaty which was capable of a construction such as that which was put upon the Treaty of Washington by the Government of the United States. Now, my Lords, I believe that if, as soon as a copy of the American Case had been sent to the Foreign Office, and before a word had been said about it in the Press or in Parliament, the American Government had been informed as to the view taken of it by the English Government, and as to the attitude which they intended to maintain—if the precious seven weeks which elapsed before the meeting of Parliament had been turned to good account during which the Government of the United States might have been able honourably and freely and frankly to retire from the position which they had taken up—my belief is that it is possible they might have so retired. You will have observed that some of the most intelligent men in the United States are quite opposed to those Claims; and it is clear that many who continue to support the Government in maintaining that they should be submitted to the Arbitrators do so, not because they think those Claims are in themselves proper, but because the Go- 1185 vernment had committed itself to make them.
I now come to the Supplemental Article, and I must say I look upon it as a very inconvenient course for a Minister to take to propose an Article which was to go before the American Senate without having the approval of the President signified in the slightest degree with regard to it. The President, in submitting the Article to the Senate, took good care to keep himself clear, and he informed them that before he agreed to the Article he wished to know what they thought of it. We are, therefore, in the position of having sent out an Article which, if the Senate adopts it, may afterwards be repudiated by the President. But we are told that the Lord Chancellor, the Law Officers of the Crown, and the legal adviser of Her Majesty's Government, for whose opinion I entertain the most profound and sincere respect—I mean Sir Roundell Palmer—all look upon this Article as satisfactory. No doubt they do, for if not, they are entirely at issue with the Government, who contend that it is perfectly satisfactory. But the Government, and the Lord Chancellor, and the Law Officers all thought the Treaty to be perfectly satisfactory, and yet it has turned out not to be perfectly satisfactory, but dubious and unsatisfactory. And what assurance have we that this Supplementary Article will be more satisfactory? What was the next argument? The noble Earl (Earl Granville) said that General Schenck had this afternoon expressed a hope that the United States had found a way by which the difficulty could be avoided without pressing these Claims or withdrawing them from the cognizance of the Geneva tribunal. Unfortunately, however, General Schenck is not the American Senate; and, unfortunately, although any expression of opinion on the part of General Schenck is entitled to weight, it cannot have the effect of binding that body in any way. The noble Earl opposite has this evening said that the noble Earl who had made this Motion (Earl Russell) was mistaken in supposing that the Correspondence which had been published had anything to do with the present stage of the question, because it occurred at a time when the subject of an interchange of Notes was under consideration, instead of a Supplemental Treaty. Unfortunately that is not so. 1186 The first part, no doubt, related to the interchange of Notes; but the second part distinctly and expressly refers to an Article to be approved by the Senate. On the 6th of May, Mr. Secretary Fish says—If the British Government desire to open negotiations to define by Treaty the extent of liability for consequential damages resulting from a failure of observance of neutral obligations, the President will carefully consider any proposals in that direction.[The noble and learned Lord quoted several other passages to the same effect from the telegrams which passed between Mr. Fish and General Schenck with regard to the drawing up of the Supplemental Article.] Well, now, with regard to this Supplemental Article. Does it imply the withdrawal of the Indirect Claims? If it is meant to be a withdrawal of these Claims why should not we say so? If it is not to be a withdrawal of these Claims, I want to know if that will be satisfactory to the people of this country? I can well understand that Mr. Fish, having in one of the "cable despatches" intimated that the President could not consent to the direct or indirect withdrawal of the Claims, should act accordingly; but is that what the English people desire? It would be well that there should be a reconciliation of the views of the two Governments; but what I am afraid of is that that means our Government adopting the views of that of the United States. The objections to the Supplemental Article appear to me to be so serious that I cannot be a party to any vote that would amount to an affirmation of that Article. In the first place, it states that the Indirect Claims are those for the prolongation of the war, the increased cost of assurance, and the transfer of commerce from one flag to another; and it leaves everything else, including the expenses of pursuit and capture, under the head of Direct Claims; and your Lordships must remember that this is to be an Article of International Law for the future. In the next place, it states that the United States agree to make no Claim before the Geneva Arbitrators in respect of the Indirect Claims. But why is that vague form of words used? It is possible that the Arbitrators might adopt the view that this Article discountenanced in every shape the Indirect Claims. Are we going 1187 to rest again upon possibility? It may all go right, and it may all go wrong; but are we going to run the risk of its going wrong? The noble Earl adopted a very unfortunate illustration when he referred to the case of a private arbitration. Did anybody ever hear of a man agreeing not to press a claim at an arbitration, and yet refusing to withdraw one he had made? If he does not mean to press it, he withdraws it, and nothing is heard about the matter at all. Another of my objections to the Article is based upon the fact that the United States' Government are said not to want money, but simply an expression of opinion from the Arbitrators upon the question of the Claims, and as involved therein the question of the prolongation of the war by the conduct of England, the enhancement of the prices of insurance, and the transfer of the commerce from one flag to another. I implore your Lordships to consider the effect of this. You will not have to pay a shilling; but you will have inflicted upon this country a stain which this country never could efface—you will have created a source of ill-will between this country and America which you never could wipe out. If the Arbitrators were to award money, it would be comparatively simple. You might refuse to pay it, and that would bring it to issue. Or we might pay it, and there would be an end of it. But let the Arbitrators once express their opinion—not on a matter of money, but as a matter of moral responsibility, that this country is responsible for the prolongation of the war and every consequence of it to which I have referred, and you will have erected an international monument of ill-will, bad feeling, resentment, and alienation between these two countries which I am sure everyone in this country would bitterly and long lament. I am afraid of this result. It is because I am afraid of this result that I seize, and gladly seize this opportunity—an opportunity which we shall not have again if we refuse it now—of recording in the face of the country, and I believe with the full approbation of the country, an expression of our opinion on the insufficiency, the unsatisfactory, and dangerous character of this Supplemental Article.
THE LORD CHANCELLOR
said, that at this late hour (12.40), he should move the adjournment of the debate. ["No, no! Go on!"]
§ Moved, "That the further debate on the said Motion be adjourned."—(The Lord Chancellor.)
§ THE MARQUESS OF SALISBURY
protested against the Motion. Early in the evening it had been impossible to get the occupants of the Treasury bench to speak; and, in consequence, four noble Lords were compelled to follow each other in support of the Motion. Now the debate was to be prolonged to suit their purpose. He trusted the sense of the House would be taken upon the Question of adjournment.
THE EARL OF KIMBERLEY
reminded their Lordships that he, a Member of the Cabinet, spoke early in the evening—in the course of the dinner hour, in fact.
opposed the Motion for adjournment, pointing out that in the early part of the evening noble Lords on the non-Ministerial benches were obliged to follow each other in support of the Motion in order to prevent the debate from collapsing. He hoped the noble Marquess would divide the House on the Question of adjournment.
§ EARL GRANVILLE
reminded their Lordships that he had spoken second in the debate, and it was quite natural that the Government should wish to hear some statement from noble Lords opposite as to the course they were going to pursue. ["Order!"] He was perfectly in Order, as he was giving reasons for adjournment. The noble and learned Lord (Lord Cairns) had delivered a remarkable speech of extreme length, as it had lasted a couple of hours, and of extreme ingenuity, notwithstanding his claim always to speak in a judicial character, and whether in debate or in hearing counsel. No one would deny that the speech he had just delivered was the speech of an advocate—and he did not say so in an unfair sense—but for an hour and a-half that speech had been directed, not to the question immediately before them. ["Question!"] He maintained he was speaking to the Question. He was speaking on the Question of the adjournment of the debate. It was most important, after such a speech had been made, bringing in a great deal of new matter—to which he (Earl Granville) did not object, that it should be answered. What he did object to was that for an hour and a-half he should go on picking holes in the Treaty, and justifying the Americans in thinking that what 1189 they had already said was true—that it was because we disliked the Treaty that we wanted to slip out of it.
§ THE EARL OF MALMESBURY
said, he had been 31 years a Member of their Lordships' House, and he did not recollect a single instance of an adjournment being proposed at that hour of the night. Their Lordships were not so hard worked but that they could afford the time necessary to finish the debate.
THE DUKE OF ARGYLL
contended that it would not be fair to divide the House upon the Question of adjournment when the Executive Government stated the necessity for an adjournment in order to do justice to the important question under consideration.
§ LORD REDESDALE
, on the other hand, trusted the Government would not divide. He was an older Member of that House than his noble Friend (the Earl of Malmesbury), and few noble Lords were better acquainted than he was with the practice of the House. He never knew a debate adjourned on an important question, to be followed by a division, unless it were known at the time the House met that an adjournment was to take place, or an arrangement to that effect made early in the evening. The noble and learned Lord opposite had waited until nearly all the leading Members on the Opposition side had spoken, and when his reply was expected to close the debate, moved the adjournment at half-past 12.
THE LORD CHANCELLOR
would say nothing about personal inconvenience, although he had worked hard all day, and had sat in that House no less than seven hours and a-half. Two learned arguments had been adduced against the measures taken by the Government with respect to the Treaty—one by his noble and learned Friend on the Government side (Lord Westbury), who, though he did not support the present Motion, advanced certain legal propositions which he should answer at the proper time; and the other by his noble and learned Friend (Lord Cairns) who spoke for an hour and a-half before he came to the question immediately before the House. One of his arguments would be to show the extreme evil which would result if those Americans who thought this debate was planned should be led to 1190 believe that the Motion was adopted in order that we might get rid of a Treaty which we disliked. He hoped, therefore, the debate would not be proceeded with to-night, and remarked that he could not undertake to make his speech shorter than that of his hon. And learned Friend.
§ On Question? their Lordships divided;—Contents, 85; Not-Contents, 125: Majority, 40.
§ Resolved in the Negative.1191
|Hatherley, L. (L. Chancellor.)||Camoys, L.|
|Devonshire, D.||Clermont, L.|
|Grafton, D.||Clifford of Chudleigh, L.|
|Saint Albans, D. [Teller.]||Dacre, L.|
|De Tabley, L.|
|Ailesbury, M.||Dinevor, L.|
|Cholmondeley, M.||Dunning, L. (L. Rollo.)|
|Lansdowne, M.||Eliot, L.|
|Ripon, M.||Foley, L.|
|Abingdon, E.||Gwydir, L.|
|Camperdown, E.||Hare, L. (E. Listowel.)|
|Cathcart, E.||Hastings, L.|
|Chichester, E.||Hatherton, L.|
|Clarendon, E.||Houghton, L.|
|Cowper, E.||Howard of Glossop, L.|
|Dartrey, E.||Kildare, L. (M. Kildare.)|
|De La Warr, E.||Leigh, L.|
|Dufferin, E.||Lurgan, L.|
|Durham, E.||Lyttelton, L.|
|Effingham, E.||Lyveden, L.|
|Granville, E.||Meldrum, L. (M. Huntly.)|
|Ilchester, E.||Meredyth, L. (L. Athlumney.)|
|Lichfield, E.||Methuen, L.|
|Morley, E.||Minster, L. (M. Conyngham.)|
|Monteagle of Brandon, L.|
|Leinster, V. (D. Leinster.)||Mostyn, L.|
|Ponsonby, L. (E. Bess-borough.)|
|Sydney, V.||Robartes, L.|
|Torrington, V.||Romilly, L.|
|Rosebery, L. (E. Rosebery.)|
|Bath and Wells, Bp.|
|Durham, Bp.||Rossie, L. (L. Kinnaird.)|
|Ripon, Bp.||Sandhurst, L.|
|Sefton, L. (E. Sefton.)|
|Acton, L.||Somerhill, L. (M. Clanricarde.)|
|Balinhard, L. (E. Southesk.)||Stratheden, L.|
|Sundrige, L. (D. Argyll.)|
|Beaumont, L.||Truro, L.|
|Belper, L.||Vaux of Harrowden, L.|
|Blachford, L.||Vernon, L.|
|Boyle, L. (E. Cork and Orrery.) [Teller.]||Wenlock, L.|
|Brougham and Vaux, L.|
|Manchester, D.||Abercorn, M. (D. Abercorn.)|
|Wellington, D.||Bath, M.|
|Bristol, M.||Blantyre, L.|
|Exeter, M.||Bolton, L.|
|Hertford, M.||Boston, L.|
|Salisbury, M.||Brodrick, L. (V. Midleton.)|
|Abergavenny, E.||Chelmsford, L.|
|Albemarle, E.||Clements, L. (E. Leitrim.)|
|Annesley, E.||Clinton, L.|
|Bathurst, E.||Colchester, L.|
|Beauchamp, E.||Colville of Culross, L.|
|Belmore, E.||Congleton, L.|
|Bradford, E.||Delamere, L.|
|Brooke and Warwick, E.||De L'Isle and Dudley, L.|
|Brownlow, E.||Denman, L.|
|Cadogan, E.||De Saumarez, L.|
|Cawdor, E.||Digby, L.|
|Coventry, E.||Dunmore, L. (E. Dunmore.)|
|Denbigh, E.||Dunsany, L.|
|Derby, E.||Egerton, L.|
|Eldon, E.||Ellenborough, L.|
|Essex, E.||Elphinstone, L.|
|Feversham, E.||Foxford, L. (E. Limerick.)|
|Gainsborough, E.||Gormanston, L. (V. Gormanston.)|
|Graham, E. (D. Montrose.)|
|Grey, E.||Headley, L.|
|Harewood, E.||Hylton, L.|
|Hillsborough, E. (M. Downshire.)||Kenlis, L. (M. Head-fort.)|
|Home, E.||Kesteven, L.|
|Jersey, E.||Leconfield, L.|
|Lanesborough, E.||Moore, L. (M. Drogheda.)|
|Lauderdale, E.||Northwick, L.|
|Leven and Melville, E.||O'Neill, L.|
|Lucan, E.||Oranmore and Browne, L.|
|Malmesbury, E.||Oriel, L. (V. Massereene.)|
|Minto, E.||Ormathwaite, L.|
|Nelson, E.||Ormonde, L. (M. Ormonde.)|
|Rosse, E.||Penrhyn, L.|
|Sommers, E.||Ravensworth, L.|
|Stanhope, E.||Rayleigh, L.|
|Stradbroke, E.||Redesdale, L.|
|Tankerville, E.||Saltersford, L. (E. Courtown.)|
|Wilton, E.||Scarsdale, L.|
|Sheffield, L. (E. Sheffield.)|
|Bangor, V.||Sherborne, L.|
|Combermere, V.||Silchester, L. (E. Longford.)|
|De Vesci, V.|
|Doneraile, V.||Sinclair, L.|
|Exmouth, V.||Skelmersdale, L. [Teller.]|
|Hawarden, V. [Teller.]||Sondes, L.|
|Lifford, V.||St. John of Bletso, L.|
|Sidmouth, V.||Strathnairn, L.|
|Strathallan, V.||Thurlow, L.|
|Peterborough, Bp.||Wentworth, L.|
|Rochester, Bp.||Wigan, L. (E. Crawford and Balcarres.)|
|Abercromby, L.||Wynford, L.|
|Abinger, L.||Zouche of Haryngworth, L.|
§ LORD KINNAIRD
said, the noble and learned Lord on the Woolsack had 1192 passed the day in Court, and had now been several hours without refreshment. The debate had wandered from the Motion, and they had been discussing the Treaty, and had thus been guilty of irregularity, which, in "another place," would not have been endured. Under these circumstances, he moved that the House do now adjourn.
§ Moved, "That the House do now adjourn."—(The Lord Kinnaird.)
§ THE DUKE OF RICHMOND
said, he understood that the noble and learned Lord was the only Member of their Lordships' House who now desired to take part in the debate, which would have closed with his speech; but at that hour he did not feel it right to persist in asking their Lordships to continue their sitting, and, therefore, he would reluctantly consent to a Motion to adjourn the debate, as he supposed, until Thursday, when he supposed the noble and learned Lord on the Woolsack would have an opportunity to reply to the speech of the noble and learned Lord who had just addressed their Lordships.
§ Motion (by Leave of the House) withdrawn.
§ Then the further debate upon the original Motion adjourned to Thursday next.
§ House adjourned at One o'clock, A. M., to Thursday next, half-past Ten o'clock.