HL Deb 22 March 1872 vol 210 cc488-501

TRIBUNAL OF ARBITRATION (GENEVA).

THE INDIRECT CLAIMS.—QUESTION.

THE EARL OF DERBY

My Lords, I rise to put the Question of which I gave Notice on Tuesday last, as to the present state of negotiations between this country and the United States, and as to the course which her Majesty's Government propose to adopt with reference to proceedings under the Treaty of Washington. I have purposely worded my Question in general terms, because I do not wish, on the one hand, to press for information on any special point as to which Her Majesty's Government may not feel justified in giving it; and, on the other hand, because I think it probable that the Foreign Secretary may not object to take this opportunity of making an explanation on the whole matter; and in that case it is better that he should do so in his own way. I am aware of the natural dislike—and under ordinary circumstances it is a very reasonable dislike—which every Minister feels to Parliamentary discussion or inquiry in reference to matters on which negotiations are pending. There may be cases in which such inquiry is not only inopportune, but mischievous; if, in the crisis of a negotiation, you censure the language which your Representative holds, or the principles which he is understood to have laid down, you do to a certain extent weaken his hands, and diminish his chance of arriving at a satisfactory settlement. That is a risk which must sometimes be run, but it is a risk nevertheless. But there is another side to the question. An English Minister directing foreign affairs is placed by the Constitution of the country in a very peculiar position. Public opinion, if unfavourable, can displace him; but although it can displace him, it cannot undo his work. A treaty is a treaty, and it binds the State, even though the public may have known nothing of its provisions until it was concluded, and may have disapproved them as soon as they were known. In America there is a check on that power, because, as we all know, the consent of the Senate is requisite to make a treaty valid. We have no such check—I am not now going into the question whether we ought to have one or not—and therefore, if the rule that no Parliamentary opinion should be expressed on pending negotiations were to be held universally binding, we should find ourselves in this position—that no voice either of encouragement or of warning could be uttered in reference to foreign questions—those questions being in their consequences the most important of any—until the encouragement had become superfluous, or until the warning was of no avail. It may be said—"Even if there is no Parliamentary discussion, you have the Press." Yes, but then we are landed in a conclusion which is practically absurd—that a subject may be freely discussed in every newspaper—that is, discussed by eminently able, but wholly irresponsible writers—while it may not be touched upon by public men in either House, speaking under the gravest sense of their personal responsibility for what they say. Further, it would be a mistake to suppose that criticism necessarily implies a hostile intention. No Minister can be so strong as not to gain by the expressed approval of the Legislature-no Cabinet can be so farsighted as not occasionally to benefit by the suggestion of lookers-on. I am quite sure that every Minister for Foreign Affairs has felt—what, during my limited experience of that office, was often my feeling—that it is a difficult position, and in some respects a false position, to be compelled to guess beforehand what public opinion will or will not sanction—knowing that you pledge the country by what you say or do, and yet being unable to consult beforehand those whom you are in that way pledging to a certain course of action. In one word, what I contend for is this—that while the details of a negotiation are wisely and necessarily left in the hands of the Government who are conducting it, the general principles on which that negotiation is or ought to be based are a fair subject of Parliamentary criticism, at the time when alone such criticism can have any practical result. Everybody allows for the reticence and reserve of a Minister under such circumstances; but it is not necessary, and in my mind it is not desirable, that these qualities should be shown in an equal degree by those who, though no doubt gravely responsible for what they say, are yet not in a precisely similar position. There is a responsibility for silence as well as for speech, and sometimes it is not the lighter of the two. My Lords, the preface which I have made is, perhaps, disproportionate to what is to follow, for it is not now my purpose to go into retrospective remarks on the provisions of the Treaty concluded last year; that matter was discussed in this House—too late, indeed, to remedy what we objected to, but not without utility, if those who remember, or who look back to what then passed, are thereby in some degree reconciled to the possible failure of that Treaty to come into operation. I have stated before, and will not repeat the objection which I felt to the sending out of that mission. The weakness of their position was this—that a mission so sent out, with such unusual pomp and ceremony, was bound under the penalty of making itself ridiculous to conclude a treaty of some sort. It could not come back re infectâ; and obviously, when the other party to the negotiation is aware of that fact, you are not likely to make an advantageous bargain. So we have gone on from concession to concession, till at last we are landed in the present difficulty. But that is a thing of the past. What I now ask from Her Majesty's Government is an assurance—leaving it to them to answer my Question in more or less general terms, as they may think fit—that they will at least steadily maintain the ground which at the beginning of the Session they were understood to take up—the ground, that is, of a refusal to admit the inclusion in the arbitration of those Indirect Claims in any form. This is not a question of detail, it is a question of principle, and it is one on which, now that we are breaking up for some time, Parliament and the public are entitled to have a clear understanding. I will speak quite frankly. I am not afraid of any intentional or direct abandonment on the part of the Cabinet of the position which they have assumed. But I do fear that process, which the late Lord Clarendon, in the time of the Crimean War, described as "drifting;" and I know how often and how easily it happens that, at the end of a long negotiation, the parties concerned in it find themselves in positions which, when it began, they did not at all contemplate taking up. In financial matters, where individuals are concerned, one of the commonest causes of ruin is where a speculator who has been unsuccessful cannot make up his mind to sacrifice a bad investment, but goes on risking more and more in the hope of recovering what he has risked already. I hope nothing analogous ever happens in diplomacy, but we all know and feel the force of the plea—"When we are so nearly agreed, is it not a pity to break off on account of a little concession more?" And so a little is added to a little, until the aggregate comes to a great deal. I would ask further, as the limit of time allowed for putting in the Counter Cases expires on the 15th of next month, whether Her Majesty's Government intend, while these communications are passing between the two Governments, to put in their Counter Case, or to suspend all proceedings before the Arbitrators until the present misunderstanding is cleared up. That is a matter on which a good deal of public interest is felt; and if the course to be taken is decided upon, I presume there can be no objection to state it, inasmuch as before the 15th it must be settled one way or the other, and the result made known. I am aware that there is vested in the Arbitrators a power to extend the time; but that power is conditional on the delay being required for the production of evidence, and that condition obviously does not apply to the present circumstances. If the Counter Case is to be put in, I would further ask whether care has been taken, in so putting it in, to guard against even the appearance of an admission that the Claims set forth in the American Case are covered by the Treaty? That is an essential point, and if the noble Earl can satisfy us upon it, I think this discussion will not have been useless.

EARL GRANVILLE

My noble Friend who has just addressed your Lordships (the Earl of Derby) divided his subject into three parts. The Notice of his Question is, as he has himself stated, of a somewhat vague character; and though the noble Earl stated, at the beginning of his speech, that its vagueness was intentional, and had arisen out of consideration for the difficulties of my position, I think that in a matter of this kind it would have been better that the Notice should have been a distinct and definite one of the particular Question or Questions about to be put to a Member of Her Majesty's Government. Now, since the noble Earl gave Notice of his Question, a nearly similar Question has been put in "another place," and the Prime Minister took that opportunity of explaining the views of Her Majesty's Government as far as it was consistent with the public interests that he should do so. The noble Earl spoke at considerable length of the advantages of public discussions of our policy in regard of negotiations going on with foreign Powers. On the other hand, he admitted that there are occasions when it is for the interest of the country that complete publicity should not be given to the course being pursued by the Government, and when discussion might be not only inopportune but mischievous. The noble Earl said that if in the crisis of a negotiation you censure the language your Representative holds, or the principles which he is understood to have laid down, such a course is mischievous; but I go further, and say that there are cases where manifestly it is for the interest of the country that no indication should be given at any particular stage of the negotiation of the steps which it is proposed to take in the subsequent negotiations. I can say for myself and my Colleagues—I can say for the noble Marquess behind me (the Marquess of Ripon)—that we most earnestly desire to discuss this question in the fullest and most complete manner. We desire this not only because we are anxious to clear ourselves of that blame, so much of which has been cast upon us, and which I think we have not merited, but also because we are of opinion that it would be a great advantage to this country that we should be able to discuss this question in such a way as to show that we were not guilty of that negligence by which it is alleged in certain quarters that some advantages were given to the Government at the other side of the At- lantic. But I believe it is not for the public interest that we should go into a discussion of this sort at the present moment. My Lords, I do not think we have been unusually reticent in respect of this matter. We purposely had the ratification of the Treaty completed at a very early period, in order to give a noble Earl who is not now present (Earl Russell) an opportunity of eliciting the opinion of this House; and this year we took the first opportunity of announcing the policy of the Government with reference to the Claims, when we put into the mouth of Her Majesty words of no little significance. Therefore, my Lords, while I say it is natural that the noble Earl should ask a Question on this subject, we have a right, in reply to that Question, to refer to the Speech from the Throne—for it would be something offensive if, having put words into the mouth of Her Majesty, we did not mean to act in the spirit and policy of those words. My Lords, the noble Earl has spoken of what he said last year on the subject of the Treaty. I think this is hardly the time to go into an elaborate defence of the Treaty of Washington; but I may say that it gave great satisfaction not only here but on the other side of the Atlantic. There was no opposition to it in the House of Commons, when it was brought under the notice of that House by the Prime Minister; and in this House it was received with an utter absence of party spirit, and your Lordships utterly refused to endorse what was put forward against it by my noble Friend, Earl Russell. I must also observe that we are not now dealing with the Treaty generally, but with the particular construction of a particular clause in it. The noble Earl himself entered into an elaborate criticism of the Treaty last year; but so far from hitting this particular point, in the most emphatic terms my noble Friend said the only concession he could find in the Treaty, on the part of the Americans, was the abandonment of the extravagant notion of our being liable for an early recognition of belligerency, and of the equally preposterous imagination, which he believed only existed in the minds of one or two speakers in the Senate, of constructive damage arising from the continuance of the war. My noble Friend applied all his powers to that criticism, and yet he entirely concurred in the doc- trine we now hold, as to the exclusion of those claims from the terms of the Treaty. I do not, however, wish to pursue the question of the construction of the Treaty—I wish to give what answer I can to the Question of the noble Earl, and I can only repeat what has been emphatically stated in "another place"—that we are anxious to maintain the Treaty. The noble Earl made a comparison which I do not see the force of. He said, in effect—"Don't throw good money after the bad money you have lost." But here is a solemn engagement between two great countries, who both were desirous of entering into a settlement on a question of international law. They have a misunderstanding on one point; and while, on the one hand, we should be to blame if we departed from the position we have taken up, on the other hand, we should be deserving of censure, if by any hasty steps we threw away an opportunity of maintaining the Treaty as we think it ought to be maintained. We are determined to adhere to the policy announced by Her Majesty's Ministers in Her Majesty's Speech. I may say one thing—and I hope I may say it without any undue laudation—namely, that although since the formation of Mr. Gladstone's Ministry several difficult questions of policy have arisen, and though in dealing with them we have been blamed by some and praised by others, according to their political views, I am not aware that in any one case we have departed from the policy we once adopted, or have departed or receded from words we deliberately used. I believe that to be so, my Lords; and, in the same spirit, I say that we shall not depart from the policy announced in the Speech from the Throne—and, if I may be permitted to say so, repeated in words spoken by myself on the first night of the Session. With regard to the particular Question with which the noble Earl concluded, I am not in a position to answer it; but if I were I should decline to do so, because if you once begin to answer Questions of that kind, it is impossible not to drift into explanations which would be unadvisable to the public interests. I am quite aware of the anxiety existing on this subject in the minds of the people of England, and in the minds of the people of the United States also; but though I am not astonished that my noble Friend should have put his Question, I trust the House will not think I am maintaining an undue reserve if, while I should cheerfully and cordially welcome a fitting opportunity for discussing this subject, I cannot at this moment depart from the general terms in which I have replied to my noble Friend's inquiry, and to the remarks which he has addressed to your Lordships.

THE EARL OF MALMESBURY

My Lords, I think the question raised in this discussion is one of great importance. It is whether great reticence on foreign affairs should be maintained in this House. Formerly diplomacy was carried on in great secresy, and Papers were not laid upon the Table till all the negotiations were concluded. But now a different state of things exists. Since the House of Commons has been reformed—since the custom was established of producing Papers, even in the progress of the negotiations, and since the people have become more intelligent in respect to questions of foreign policy, it is impossible to maintain the old system, for it would not be borne by the country. Under the pressure of Parliamentary Government the Minister is obliged to produce important Papers for the perusal of your Lordships, and your Lordships having read them, is it to be supposed that you are to maintain a complete silence with respect to the negotiations to which they relate? That can scarcely be asserted. It becomes, then, a matter of discretion—discretion on the part of any noble Lord who is disposed to ask a Question, and discretion on the part of the Government as to whether they will answer a Question if it is put. Having said so much on that point, I must make a remark as to what my noble Friend the Secretary for Foreign Affairs said just now, when he observed that the whole country had been satisfied with the Treaty. Now, my Lords, that satisfaction must be taken with a qualification. The country was satisfied with the Treaty so far as the country understood it. The belief throughout the kingdom was that it had been brought about with the best intentions, and that my noble Friend (the Marquess of Ripon) had succeeded in coming to a complete agreement with the American negotiators, and in rendering our future relations with the United States satisfactory and secure. To that extent the country sanctioned the Treaty. But my noble Friend (the Earl of Derby) said he was not satisfied with our new position. He maintained that our previous position had been impregnable, because we had proposed arbitration, which had been refused, and it was for the Americans to take the next step; he foresaw difficulties, and was of opinion that very little had been obtained by us through the Treaty, except the putting an end to a long discussion on the Alabama Claims. The country gave its adherence to the Treaty, because it did not foresee that it would be ambiguous. The country was as much deceived as Her Majesty's Government was deceived with regard to the Treaty. However opinions might differ as to details, the country and Parliament thought the result had been a prosperous one, and had answered their expectations. But what is the case now? All at once we are told that such a misunderstanding as to the meaning of the Treaty exists that it may be said to be not worth sixpence. Many men in and out of this House wish it, therefore, to be at once abrogated, for fear of going further and deeper into difficulty. Instead of the country being satisfied with the Treaty, I believe there is scarcely a man who will regret it if the Government stand firm—as I am sure, after my noble Friend's speech, they will—and if the Treaty is abrogated, or allowed to fall to the ground. There is nothing, indeed, to be regretted in it. The object of the Treaty was the smoothing down differences between the two countries, and that has failed; for these differences have rather increased the disagreeable feeling in America—so that the object which the Government had at heart, excellent as it was, has failed. I do not say it is my noble Friend's fault, but when he tells us public discussions on these matters are often dangerous, and to be deprecated, let him remember that the greatest advantage which he holds against the Americans proceeds from one of the very discussions to which he has alluded. But for that discussion, the American Minister, sitting in the Gallery, would not have heard the speech in which my noble Friend distinctly boasted that Indirect Claims had been got rid of. That is one of the strongest arguments he can employ against the American Government. As to his re- mark that the interpretation of the Treaty appeared at the time in this country perfectly plain, I would remind him that my noble and learned Friend not now present (Lord Cairns), in a manner quite prophetic, told the House that an interpretation could be put upon this clause, and that indirect claims were not barred so strongly and indisputably as they should have been. One thing which the country is anxious to know is, how the Government explain the difficulty which has arisen. Will they tell the House how they convinced themselves so completely that no indirect claims were asked for—especially in the light of the 36th Protocol? In the 36th Protocol the American Government distinctly enumerated every indirect claim that could be imagined, and rested upon them as strongly as any Government could insist. They claimed for indirect injury, for the addition of a large sum to the cost of the war and the suppression of the rebellion, and for the cruisers which they had to employ to capture privateers. What was the answer of the noble Marquess (the Marquess of Ripon), the chief British Commissioner? I presume the reply was his, though the Protocol gives it as that of the Commissioners—and it was in these terms— They would abstain from replying in detail to the statement of the American Commissioners, in the hope the necessity of entering upon a controversy would be avoided. The noble Marquess was quite right in hoping that arbitration would be adopted, and that a mode of settlement would be agreed on; but I think an older and more practised diplomatist would not have simply postponed the question. He would have said—"Before we go any further there must be an understanding that indirect claims are barred—we have nothing whatever to do with them. Though we are ready to offer arbitration, it must be understood that indirect claims are to be barred." The noble Marquess, however, put aside the question, and I find nowhere else any distinct allusion to it, or any statement that those claims were barred. If, therefore, I am asked my opinion of the origin of the misunderstanding, it is the mistake which the noble Marquess then and there made in not having the courage to say "No." I shall have no anxiety in seeing the Treaty abandoned, for when an error of that kind has been made it is better to do what schoolboys do when they cannot get their sums right—sponge off the slate and begin again. If my noble Friend wishes for any advice, I will remind him of the words of the American Commissioners upon an analogous point during these negotiations. On the question of the North-west Boundary being discussed, they replied— That, in view of the position taken by the British Commissioners, it appeared that the Treaty of June 15, 1846, might have been made under a mutual misunderstanding, and would not have been made had each party understood at that time the construction which the other party puts upon the language whose interpretation is in dispute; they therefore proposed to abrogate the whole of that part of the Treaty, and re-arrange the boundary line which was in dispute before that Treaty was concluded. Those words are worthy, I think, of the attention of Her Majesty's Government.

LORD WESTBURY

My Lords, though unwilling to intrude into this discussion, I think it necessary to say a few words, in order to prevent the possibility of what I should deem a grievous mistake on the part of Her Majesty's Government. We were told some time ago—and, I think, truly—that the conduct of the United States' Government thoughout the negotiation of this Treaty was such as to give us an assured belief that the Indirect Claims had been abandoned, and were not intended to be included in the Reference. Undoubtedly that assurance, conveyed either in words or by the whole tenour of the communication, is the best justification for the ambiguous language of the Treaty. It lulled to sleep the vigilance of our Commissioners. But what will the United States do? They now contend that on the construction of the Treaty these Claims come within its terms. What is that pregnant with an admission of? Why, an admission that they were conscious the Treaty was framed so as to include claims which by word and deed they had persuaded us were not to be included. Unfortunately, the Prime Minister contends that the construction of the Treaty is with us, and that if it were fairly construed these claims would not be included. Now, that species of argument is playing the very game of the Americans, and they fasten upon it with a degree of acuteness for which they are proverbial, but which, unhappily, in this "used-up old country" is not so prevalent. They argue—"You say the construction is with you, and we say it is with us; therefore an issue is raised upon the language of the Treaty which must of necessity go to the Arbitrators, who are the proper tribunal to determine such a question." Now, I do not argue the construction of the Treaty. Enough for me that it is ambiguous, and that it may admit of an interpretation which is contrary to the truth and honour of it. What I beg the Government to do is to take a firm stand upon the truth of what was understood on both sides at the time, and not to be beguiled into a question concerning the construction of a treaty; for it is idle to discuss the construction of a document which you contend does not contain your real sentiments, and does not tally with the belief and understanding which you were induced by the other side to entertain. Insist that no question as to the construction of the Treaty on this matter shall go to the Arbitrators; for there is something superior to language—good faith—the question what was intended by us, and what was represented to us to be intended by them. Have that point raised and decided before you begin quibbling as to the interpretation of the language. The only thing we can possibly do is not to seek to exact from Her Majesty's Government any disclosure of matters which it may be inconvenient to reveal, but to point out that they must pursue one course, and must not attempt to reconcile inconsistent courses. If you say you never intended these claims to be within the Treaty, it is an idle thing to insist that they are not within the Treaty. In conclusion, I have only to express my earnest hope that the course which Her Majesty's Government take may be in all respects consistent with that which the truth, the honour, and I will add, the courage of the country demand; and it was with that hope only, and with a desire of pointing out the inconsistency of attempting to do two irreconcilable things at once, that I have taken the liberty of intruding upon the attention of the House with reference to this matter.

THE LORD CHANCELLOR

My Lords, I certainly am not about to commit the indiscretion of departing for a moment from the line of duty which was so clearly expressed by the noble Earl the Secretary for Foreign Affairs; but I cannot allow the observations which just been made by the noble and learned Lord (Lord Westbury) to pass without that answer which they demand. The noble and learned Lord says there is an inconsistency in saying that we intended at all times that the Treaty should bear a certain sense, and at the same time saying that we contend that it does bear that sense. I cannot for the life of me see any inconsistency between those two propositions. On the contrary, I should say that nothing could be more disgraceful and discreditable to us than to say—"True it is that we cannot contend that the Treaty means what we say it does; but, nevertheless, without a shadow of argument to back us, we are prepared to contend that it means that which we know it does not mean." Surely such a course would be an inconsistency, and a gross inconsistency. On the other hand, there is nothing inconsistent in our saying—"We have not agreed to attribute to the Treaty such and such a meaning; we never had any intention of attributing to it such a meaning; but, at the same time, for the sake of our honour and consistency we do record in a formal Note what we said in the hearing of the American Minister in this House, and what we have maintained at all times since its execution—namely, that the Treaty itself, on the face of it, does not bear the construction you seek to put upon it." I maintain that to adopt such a course is not only consistent in itself, but that it is consistent with the honour of this country, which we trust will be safe in our hands.

EARL GREY

The noble and learned Lord on the Woolsack appears to have totally misunderstood the observations of the noble and learned Lord opposite (Lord Westbury). What I understood the latter to say—and I think that his remark is quite true—was, that there would be a great inconsistency in going into an argument as to whether the Treaty will or will not bear a certain interpretation, while, at the same time, we are taking up a position that, whatever may be the language of the instrument, we did not intend that it should bear that interpretation, and entirely disclaim being bound by it. What is material to the question is, that we meant a certain thing by the Treaty, and from that construction we will not depart.

THE EARL OF LAUDERDALE

said, he could not agree with the statement of the noble Earl the Secretary for Foreign Affairs, that the Washington Treaty was generally accepted by the country last year; he denied that it had been generally accepted by their Lordships' House. No doubt a certain portion of the country, the public Press, and the other House had approved it, and he wished them joy of their bargain, But the country and the other House of Parliament had accepted the Treaty on the faith of the assurance by the noble Earl and of the Prime Minister that the Indirect Claims were excluded from consideration under it. Since that time, however, the Prime Minister had informed the other House that we were to be held liable for all the expenses of that part of the American navy which was employed in looking after the Southern cruisers. He confessed that on looking at the words of the Treaty he thought that the construction put upon it by the United States was justifiable. It appeared to him to be no Treaty at all, for it was understood in one way in this country, and in another way in the United States; and, therefore, the instrument not having expressed our real meaning, the sooner the Treaty came to an end the better.