HL Deb 27 June 1872 vol 212 cc260-6
EARL GRANVILLE

My Lords, I wish, in the first instance, to acknowledge my sense of the reticence which this House has preserved. Since the meeting of the Arbitrators on the 15th of June at Geneva, your Lordships have abstained from putting any question which might embarrass the Government; and this abstinence makes me the more anxious to give you what information I can at the earliest possible moment. I could not have given you any at an earlier period; for it was only at half-past 4 o'clock this afternoon that I received a telegram from Geneva, in which I am informed that the Tribunal is no longer desirous of any secrecy as to the proceedings that have hitherto taken place before them. My Lords, your Lordships are aware that the Tribunal met on the 15th of June—the day to which they adjourned three months ago. The Agent of the United States (Mr. Bancroft Davis) at that meeting presented a printed Argument showing the points and referring to the evidence on which his Government relied. The British Agent did not present a written or printed Argument, but delivered to the Arbitrators a Note in the following terms:— The Undersigned, Agent of Her Britannic Majesty, is instructed by Her Majesty's Government to state to Count Sclopis, &c., that they regret to be under the necessity of informing the Arbitrators that the difference between Her Majesty's Government and the Government of the United States referred to in the note which the Undersigned had the honour to address to Count Sclopis when presenting the British Counter-Case on the 15th of April last, has not yet been removed. Her Majesty's Government have, however, been engaged in negotiations with the Government of the United States, which have continued down to the present time, for the solution of the difficulty which has thus arisen; and they do not abandon the hope, that, if further time were given for that purpose, such a solution might be found practicable. Under these circumstances, the course which Her Majesty's Government would respectfully request the Tribunal to take is, to adjourn the present meeting for such a period as may enable a Supplementary Convention to be still concluded and ratified by the High Contracting Parties. Having lodged the present application, the Undersigned is instructed to withhold the written or printed Argument which the Undersigned, as Agent of Her Majesty, is directed to put in under the Vth Article of the Treaty, although that Argument has been duly prepared, and is in the hands of the Undersigned. The Undersigned is further directed to say, that Her Majesty's Government (while they would consider the Tribunal to have full power to proceed at the end of the period of adjournment, if the difference between the High Contracting Parties should then have been removed, notwithstanding the non-delivery on this day of the Argument by the Undersigned) continue, while requesting this adjournment, to reserve all Her Majesty's rights, in the event of an agreement not being finally arrived at, in the same manner as was expressed in the note addressed by the Undersigned to Count Sclopis on the 15th April."—[North America. No. 10 (1872)]. The noble Earl proceeded to read a Minute of the further proceedings before the Tribunal, as follows:— The Conference was held pursuant to adjournment. All the Arbitrators were present. Lord Tenterden and Mr. J. C. Bancroft Davis attended the Conference as Agents of Her Britannic Majesty and the United States respectively. Mr. J. C. Bancroft Davis then delivered in duplicate to each of the Arbitrators and to Lord Tenterden, the Agent of Her Britannic Majesty, a printed Argument showing the points and referring to the evidence on which his Government relies. Lord Tenterden then, on behalf of Her Britannic Majesty's Government, presented the note of which a copy is annexed, requesting an adjournment of the Tribunal for the reasons therein stated, for such a period as might enable a Supplementary Convention to be concluded and ratified between Her Britannic Majesty and the United States. Mr. Bancroft Davis stated that he could not say what would be the views of his Government on this motion, until he should know the time for which the adjournment was asked. Lord Tenterden slated that Her Britannic Majesty's Government believed that in order to afford time for the consideration of a Supplementary Convention by the Senate of the United States in their session commencing in December next, and for its subsequent consideration by Her Britannic Majesty's Government and for its ratification by the High Contracting Parties respectively, it would be requisite that the adjournment should be for a period of eight months, but that power might be reserved for the Arbitrators to meet at any earlier date, upon being convened for that purpose by the Secretary of the Tribunal upon the joint request in writing of the Agents of the two Governments. Mr. Bancroft Davis said that his instructions did not yet enable him to state to the Arbitrators the views of the Government of the United States on this motion in full. He said that he was in telegraphic communication with his Government and he asked an adjournment until Monday, the 17th instant. The Tribunal decided that the Protocols should be signed by the President and Secretary of the Tribunal, and the Agents of the two Governments. The Conference was then adjourned to Monday, the 17th day of June, at 2 o'clock. When the Conference met on the 17th, pursuant to adjournment, Mr. Bancroft Davis, the United States Agent stated that he was still without definitive instructions from his Government regarding the request of the British Agent for adjournment, and suggested a further adjournment of the Tribunal until the 19th inst., and Lord Tenterden making no objection, the Conference was adjourned accordingly. At the meeting on the 19th, Count Sclopis, on behalf of the Arbitrators, made the following statement:— The application of the Agent of Her Britannic Majesty's Government being now before the Arbitrators, the President of the Tribunal (Count Sclopis) proposes to make the following communication on the part of the Arbitrators to the parties interested. The Arbitrators wish it to be understood that, in the observations which they are about to make, they have in view solely the application of the Agent of Her Britannic Majesty's Government which is now before them for an adjournment, which might be prolonged till the month of February in next year; and the motives for that application, viz., the difference of opinion which exists between Her Britannic Majesty's Government and the Government of the United States as to the competency of the Tribunal, under the Treaty of Washington, to deal with the claims advanced in the Case of the United States in respect of losses under the several heads of:—(1) the losses in the transfer of the American commercial marine to the British flag; (2) the enhanced payments of insurance; and (3) the prolongation of the war, and the addition of a large sum to the cost of the war and the suppression of the rebellion; and the hope, which Her Britannic Majesty's Government does not abandon, that if sufficient time were given for that purpose, a solution of the difficulty which has thus arisen, by the negotiation of a Supplementary Convention between the two Governments, might be found practicable. The Arbitrators do not propose to express or imply any opinion upon the point thus in difference between the two Governments as to the interpretation or effect of the Treaty. But it seems to them obvious that the substantial object of the adjournment must be to give the two Governments an opportunity of determining whether the claims in question shall, or shall not, be submitted to the decision of the Arbitrators; and that any difference between the two Governments on this point may make the adjournment unproductive of any useful effect, and, after a delay of many months, during which both nations may be kept in a state of painful suspense, may end in a result which, it is to be presumed, both Governments would equally deplore, that of making this Arbitration wholly abortive. This being so, the Arbitrators think it right to state that, after the most careful perusal of all that has been urged on the part of the Government of the United States in respect of these claims, they have arrived, individually and collectively, at the conclusion that these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations, and should upon such principles be wholly excluded from the consideration of the Tribunal in making its award, even if there were no disagreement between the two Governments as to the competency of the Tribunal to decide thereon. With a view to the settlement of the other claims to the consideration of which by the Tribunal no exception has been taken on the part of Her Britannic Majesty's Government, the Arbitrators have thought it desirable to lay before the parties this expression of the views they have formed upon the question of public law involved, in order that after this declaration by the Tribunal it may be considered by the Government of the United States whether any course can be adopted respecting the first-mentioned claims which would relieve the Tribunal from the necessity of deciding upon the present application of Her Britannic Majesty's Government."—[Ibid.] There will be some little difficulty for your Lordships in following a statement of this character, read for the first time; but I think it will strike your Lordships who have listened to it that in this declaration the Arbitrators avoid saying anything which might be objectionable to the Government of the United States or to the Government of Her Majesty. They do not assume jurisdiction, or propose now or hereafter to make any award or judicial deliverance. They make the principle of the Declaration extend not only to the disallowance, but to the exclusion from consideration of these Claims. They avoid, in the statement of their view, the use of language which could be cited hereafter as laying down any larger principle than that really involved in the immediate controversy, or which could be made use of in the progress of the Arbitration itself as to any of the other Claims, as implying anything in their favour. They did not throw in any way upon Her Majesty's Government the burden of taking the action which ought to follow upon the Declaration. After the President of the Tribunal had read the Declaration, he asked Lord Tenterden if he had anything to say. Lord Tenterden replied—"Nothing." He then asked the United States' Agent, who requested an adjournment, to enable him to communicate the Declaration to his Government and get instructions on it. The Tribunal adjourned until the 26th of June; but, as the American Agent received his instructions somewhat earlier than he had expected, the Chairman of the Arbitrators, Count Sclopis, convened a meeting for Tuesday last—the day before yesterday. At the meeting of the Tribunal on the 25th inst., the United States' Agent made the following statement:— The declaration made by the Tribunal, individually and collectively, respecting the claims presented by the United States for the award of the Tribunal for: 1st, the losses in the transfer of the American commercial marine to the British flag; 2ndly, the enhanced payments of insurance; and 3rdly, the prolongation of the war and the addition of a large sum to the cost of the war, and the suppression of the rebellion, is accepted by the President of the United States as determinative of their judgment upon the important question of public law involved. The Agent of the United States is authorized to say that, consequently, the above mentioned claims will not be further insisted upon before the Tribunal by the United States, and may be excluded from all consideration in any award that may be made."—[Ibid.] When the United States' Agent had made this statement, the British Agent said that he would inform his Government of the Declaration made by the Arbitrators on the 19th inst., and of the statement now made by the Agent of the United States, and request their instructions. The Tribunal then adjourned till Thursday (this day) at 11 A.M. At the meeting of the Tribunal to-day the British Agent read the following statement:— The Undersigned, Agent of Her Britannic Majesty, is authorized, by Her Majesty's Government, to state that Her Majesty's Government find in the communication on the part of the Arbitrators, recorded in the Protocol of their proceedings of the 19th instant, nothing to which they cannot assent, consistently with the view of the interpretation and effect of the Treaty of Washington hitherto maintained by them; and being informed of the statement made on the 25th instant by the Agent of the United States, that the several claims particularly mentioned in that statement will not be further insisted upon before the Tribunal by the United States, and may be excluded from all consideration in any award that may be made; and assuming that the Arbitrators will, upon such statement, think fit now to declare that the said several claims are, and from henceforth will be, wholly excluded from their consideration, and will embody such declaration in their Protocol of this day's proceedings; they have instructed the Undersigned, upon this being done, to request leave to withdraw the application made by him to the Tribunal on the 15th instant for such an adjournment as might enable a Supplementary Convention to be concluded and ratified between the High Contracting Parties; and to request leave to deliver the printed Argument, now in the hands of the Undersigned, which has been prepared on the part of Her Britannic Majesty's Government under the Vth Article of the Treaty, with reference to the other claims, to the consideration of which by the Tribunal no exception has been taken on the part of Her Majesty's Government. I have only just received the concluding portion of these proceedings, to this effect, that— Mr. Bancroft Davis said, that he made no objection to the granting of the request made by Lord Tenterden, to be permitted to withdraw his application for an adjournment, and to file the Argument of Her Britannic Majesty's Government. Count Sclopis, on behalf of all the Arbitrators, then declared that the said several claims for indirect losses mentioned in the statement made by the Agent of the United States on the 25th instant, and referred to in the statement just made by the Agent of Her Britannic Majesty, are, and from henceforth will be, wholly excluded from the consideration of the Tribunal; and directed the Secretary to embody this declaration in the Protocol of this day's proceedings. He at the same time informed Lord Tenterden that the Tribunal assented to his request for leave to withdraw his application for a prolonged adjournment, and also to his request for leave to deliver the printed Argument which had been prepared on the part of Her Britannic Majesty's Government. Lord Tenterden then presented copies of the Argument in duplicate to each of the Arbitrators, and to the Agent of the United States."—[Ibid.] Count Sclopis then read a paper about the importance of the functions of the Tribunal. The question of adjournment and further arguments by counsel is being considered. My Lords, I ask for no judgment on the statement which I have made—briefly, but with, I believe, complete accuracy. I thought it right to put your Lordships in possession as soon as possible of what has passed; and I cannot help expressing a hope that when the Papers are presented to your Lordships—which will be as soon as we have received the written Despatches—and when those Papers are fully considered, your Lordships will be of opinion that not only do they meet the views of Her Majesty's Government and of the American Government, but that they are perfectly consistent with the honour and interest of the two countries. And I trust, further, that they will afford some evidence that the friendly relations between these two great and kindred nations will prove to be so sound that not only will they maintain harmonious feeling when things go smoothly, but that they can also resist the shock of those differences of opinion which must occasionally arise between two countries so constantly in contact in so many ways and on so many subjects. My Lords, I beg to thank you for your kind attention.

LORD CAIRNS

My Lords, I am sure your Lordships will be glad to have heard at the earliest possible moment the document which the noble Earl has just read. So far as I have been able to gather their import, it would rather appear—speaking in simple language—that the result of the whole is, that the Arbitrators at Geneva have decided the particular and special point which I thought we had all agreed they should not be allowed to decide—namely, the scope and extent of the Treaty, and the question of what should properly come under their cognizance by virtue of that Treaty. As well as I can gather, the American Government have taken this decision of the Arbitrators on the Indirect Claims as a decision they have all along said they wished to be arrived at by the Arbitrators. I must congratulate your Lordships that, as things have turned out, that decision has been in favour of this country; but we should have been in a very awkward position if it had been the other way.

EARL GRANVILLE

My Lords, I do not wish to prolong the discussion; but I utterly deny that we should have been in any false position whatever by a spontaneous declaration of the Arbitrators, whatever might have been their decision.

LORD BUCKHURST

After the most important statement just made by the noble Earl, I will, with your Lordships' permission, withdraw my Notice on the Paper of this evening.