Lords Sitting of 31 May 1872

MINUTES.
PUBLIC BILLS—First Reading—Metropolitan Commons Supplemental* (115); Pier and Harbour Orders Confirmation *(116); Parliamentary and Municipal Elections* (117); Infant Life Protection * (118).
Second Reading—Juries Act Amendment (Ireland) * (109).
Second Reading—Referred to Select Committee—Gas and Water Orders Confirmation * (101); Petroleum * (104).
Select Committee—Bankruptcy (Ireland) Amendment* (51), and Debtors (Ireland) * (52), The Lord Camoys added.
Committee—Report—Metropolis (Kilburn and Harrow) Roads * (94).

TREATY OF WASHINGTON. TRIBUNAL OF ARBITRATION (GENEVA). THE INDIRECT CLAIMS.
  CORRESPONDENCE.
  Correspondence respecting claims for indirect losses put forward in the Case presented by the United States Government to the Tribunal of Arbitration at Geneva—Presented (by command), and ordered to lie on the Table.—North America No. 7. (1872).
TREATY OF WASHINGTON. TRIBUNAL OF ARBITRATION (GENEVA) THE SUPPLEMENTARY ARTICLE.

  QUESTION.
  THE EARL OF DERBY: I wish to put to the noble Earl the Secretary of State for Foreign Affairs a Question of which I have given him private Notice. I wish to ask him, Whether he is prepared to lay on the Table the Supplementary Article which is proposed to be added to the Treaty of Washington, together with the amendments on that Supplementary Article which have been introduced by the Senate of the United States? I wish also to ask, whether, considering the general anxiety which prevails upon this

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  subject, he will be prepared to state what is the present position of the negotiations, and whether any decision has been come to by Her Majesty's Government as to the acceptance or rejection of the Article with the amendments understood to be introduced by the Senate of the United States?
  EARL GRANVILLE: With the permission of my noble Friend I will answer his second Question first. This is the position of affairs. At this moment we are in active communication with the Government of the United States. Congress, which was to have adjourned on Friday, has postponed its adjournment till Monday; and this, therefore, is exactly the moment when it would be most inconvenient for Her Majesty's Government to make a statement with respect to the matter in question. I think, under these circumstances, my noble Friend will not expect me to make any statement to-day. With regard to the presentation of the Article, which has already appeared in a surreptitious manner in the United States, I do not think its appearance in that way would justify me in making use of it in this country; and I do not think it would be satisfactory to lay the Article on the Table without certain Papers connected with it, which will give your Lordships the fullest information on the subject. I can only say that I think delay is not a thing to be desired—and, if we did desire it, it would not be possible except for a very short time indeed.
  EARL GREY: My Lords, the answer of my noble Friend compels me to ask another Question. Is it the intention of Her Majesty's Government to decline to go on with the Arbitration unless the Claims on account of Indirect Damages are withdrawn? I am afraid I must ask your Lordships' indulgence while I say a very few words in explanation of that Question. Your Lordships are aware that from the moment when this country learnt the nature of what are called the Indirect Claims put forward by the American Government very great anxiety on the subject prevailed. When my noble Friend the Secretary for Foreign Affairs, in the debate on the Address, declared that these Claims were regarded by Her Majesty's Government as being of such a nature that it was impossible this country could consent to their being referred to any tribunal, however high
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  —and at the same time assured your Lordships that Her Majesty's Government would, on the one hand, maintain the rights of this country, while, on the other, no effort should be spared to bring the question to an adequate and satisfactory conclusion—this statement of my noble Friend for the moment allayed the anxiety of the country. But when we heard that the "friendly communication," as it was termed in the Speech from the Throne, made on Her Majesty's part to the Government of the United States had not induced that Government to waive the Claims which it had preferred, and when we found that negotiations on the subject were proceeding, the anxiety which had before existed was revived and increased. On two or three different occasions the subject was referred to in this House, and though my noble Friend was pressed upon the point, he constantly declined to give us or the country any express assurance that we should refuse to go to arbitration unless those Indirect Claims were withdrawn. No doubt, he implied that such would be the conduct Her Majesty's Government would steadily pursue; but he would give no express assurance to that effect. That being the case, the anxiety of the country has been greatly increased by what has become known to us since the last meeting of the House. We have learnt not only what was the nature of the Correspondence between Her Majesty's Government and the American Government, but the newspapers have been enabled to publish—by what means it is not for me to guess—the communications which have been passed between the Government at Washington and their Minister in this country. From those communications we learn that it is the fixed determination of the United States' Government not to withdraw the Claims which have been preferred. Now, that being their fixed determination, the announcement just made by my noble Friend that negotiations are still in progress is calculated to excite the most lively alarm in our minds. Because, what does that declaration imply? Does it not imply this? That, knowing such to be the determination of the American Government, from the confidential communications between that Government and their Minister here, Her Majesty's Government yet think it worth while to continue to negotiate? Does not that imply the

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  contemplation at least of some concession on our part? Now, I believe it is the all but unanimous opinion of your Lordships, and the all but unanimous opinion of the nation, that this is a case which calls for firmness and determination. We concur in the view taken by Her Majesty's Government at the beginning of the Session that these are Claims which it is impossible this country can submit to have referred to any tribunal, however high. But I say more. We not only cannot consent to their being decided on by any tribunal, but, for my own part, I believe it is necessary for the honour and dignity, as well as for the interests of the country that these Claims should not be in any way before the Arbitrators—because, possibly, they might swell the amount of the lump sum the Arbitrators are empowered by the treaty to reward against us without assigning any reason for it. This is what I believe to be the situation. Therefore, I think it is alarming in the greatest degree to find that negotiations are still in progress. And I must add that the anxiety which we feel in the situation of affairs is not removed by the fact, which has been stated on the highest authority, that before the Treaty can be ratified, it will be laid and will remain for some time before Parliament. If I am not mistaken, it has been explained in this House on very high authority—I am not sure that it was not the authority of my noble Friend himself—that it is not competent to a nation, consistently with its honour, to refuse the ratification of a Treaty concluded by its authorized representatives, unless it can be shown either that the Plenipotentiary has exceeded his powers or has departed from the instructions he had received. If, therefore, the Plenipotentiary has kept within his powers, and has obeyed his instructions, it is not a matter of discretion with the Government to withhold or not that ratification which they are in honour bound to give. That we have been told on high authority is the ordinary rule of diplomatic practice—and certainly it seems to be a correct one. Therefore, the statement that we shall have the Treaty on the Table before it is ratified does not remove the anxiety which we feel; and I do think that before any step is taken which may be final, and which may commit this country to a course which I believe
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  would be universally disapproved, my noble Friend should state whether it is or is not the intention of Her Majesty's Government to refuse to proceed to arbitration unless these Claims are withdrawn. My Lords, these negotiations have now lasted between four and five months, and I do think it is high time we should now know definitely what is the position of the Government. The fact that negotiations are still pending is no longer a valid reason for refusing to give that information.
  EARL GRANVILLE: In one word I will answer the noble Earl. Yesterday I received from my noble Friend the noble Earl opposite (the Earl of Derby) a letter to this effect—
  "I wish to ask you, with the permission of the House, whether you will lay on the Table the text of the Supplementary Article, together with the amendments which have been introduced by the Senate of the United States, and also what is the present state of the negotiations, and whether or not any decision has been come to by the Cabinet."
  Now, these are matters of fact; and although it is inconsistent with the general practice of the House to ask any Question on which a debate might arise, unless formal Notice has been given, it was quite clear that, under the circumstances, my noble Friend had no alternative but to give me the Notice he has done. To his Questions I have given an answer. I can quite understand that the answer I have given is not perfectly satisfactory to your Lordships, who are naturally anxious to get all possible information on the subject; but it is the one which a sense of my duty compels me to give. An hour ago my noble Friend on the cross-benches (Earl Grey) sent me a note. I do not exactly remember the words, but it was to the effect—"If nobody else does so, I will ask what are the intentions of Her Majesty's Government." My answer would have been exactly the same as I have given to the noble Earl opposite; but I must put it to your Lordships that it is singularly inconvenient that after my assurance that only one or two days can elapse before I make a full statement, my noble Friend should get up and make a long argumentative speech, containing all sorts of assertions, which I deny, and then expect me to rise and answer categorically, either with or without arguments, Questions which may be inconvenient in the critical moment at

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  which we have arrived. I decline to answer those Questions. If he chooses he can give Notice of any Question for Monday next—then I shall give the answer which it will be my duty to give: but certainly I will not, by the somewhat severe speech he has made, or by the unfounded assumption that Her Majesty's Government are likely to compromise the honour of the country, be drawn into making a premature declaration.
  LORD CAIRNS: My Lords, I am one of those who recognize a considerable amount of the advantage in our constitutional principle that the Sovereign, through her Ministers, is entitled to negotiate and conclude treaties with Foreign Powers; but I must say that Her Majesty's Government are straining that principle on the present occasion to a degree to which I think it never was strained before, and which, I venture to say, if carried much further, will go far to subvert the principle altogether. Before your Lordships adjourned on the eve of the Recess we had a statement made to us by the noble Earl the Secretary for Foreign Affairs; but it was accompanied by a refusal to produce the despatches which had passed between the two Governments up to that time, and your Lordships adjourned without any knowledge of the contents of those documents. Hardly had 24 hours elapsed, however, before we were put in possession of the whole contents—not through the medium of Her Majesty's Government, but by means of telegraphic despatches from the other side of the Atlantic. That was a very unsatisfactory thing for Parliament, the Great Council of advice for England, which may naturally expect if these matters are made public they should be communicated to them by the Ministers of the Crown. But that is not the only way in which we have received information. We received some further information through the medium of a lecture delivered by one of Her Majesty's Commissioners; and we have to-day received a fresh instalment of an interesting character, through the publication of the telegraphic despatches said to have passed between one Member of the Government at Washington and their Representative in this country, who details with great explicitness and frankness the conversations he has had with the Secretary of State opposite. I cannot, under
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  these circumstances, help recognizing the justice of what was said by the noble Earl on the cross-benches (Earl Grey). The Secretary of State declines to give us even the text of the Supplementary Article which has occupied public attention during the last fortnight—he does not dispute that this Article, as published in the ordinary sources of information, is correct—and I own I am somewhat surprised that, if that is the case, it should not be laid on the Table in the ordinary course. What the noble Earl on the cross-benches says is perfectly well founded. In the telegraphic despatches which have been published as those which have passed between the Government at Washington and their Minister at this Court we find it declared—not once but again and again—that whatever may be done on the subject of the Supplementary Article, it must be understood that no words in that Article may amount not merely to a direct, but even to an indirect withdrawal of the Indirect Claims. Now, I do not want to elicit from the noble Earl anything he may not think it right to tell us; but I do venture to say—on behalf, I am sure, of many of your Lordships as the public out-of-doors—it is utterly impossible that there should not be felt the greatest anxiety by the public of this country when they hear there are further negotiations on the Supplementary Article, which even when deprived of the alterations made in it by the Senate was sufficient to create great uneasiness and anxiety, and I think to create the greatest possible embarrassment; but which we are told, on authority we have no right to dispute, must not, however settled, be understood to amount to a direct or indirect withdrawal of the Claims which have already been made.
  EARL GREY: My Lords—
  EARL GRANVILLE: It is the custom in this House when a point of Order is raised for the Peer who is interrupted to sit down. I submit that my noble Friend is quite irregular in continuing this conversation.
  EARL GREY: I submit that I have not been guilty of any irregularity. When a question of pressing importance arises, a Question may be put on such a Notice as I gave this morning—the observations I have made would have been too late had I not made them to-day,

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  and I gave all the Notice in my power by writing a note to the noble Earl. In consequence of what has passed, I have authority on the part of Earl Russell to say that on Tuesday next he will make the Motion which he postponed before the Recess. I should have fixed it for him for Monday, but that I observe that some other business placed on the Paper for that day might interfere to prevent the Motion of my noble Friend from coming on. I am very unwilling to defer it till Tuesday.
  THE MARQUESS OF SALISBURY: I rise for the purpose of asking for some information, and I hope I shall have more success than the noble Earls who have preceded me. My Question is of a comparatively subordinate character. I am not going to ask the noble Earl either as to his policy or what he is going to concede to the American Government or to withhold—but with respect to his intermediate policy, and as to the precautions which it will be necessary for him to take in consequence of the lapse of time. The Court of Arbitration is to sit on the 15th of June. We have been told on high authority in the other House that, though the negotiations may be conducted by telegraph, the ratification must be by post. If that is the case, unless the negotiations are concluded within a day or two—and even then it would be difficult—it will be impossible that the final step should be taken before the time conies for the Geneva Arbitrators to sit. I wish, therefore, to ask what precautions have been adopted, or what course the noble Earl means to pursue under these circumstances? An answer to this Question will not prejudice the ultimate termination of his policy; but it is evident he must be prepared with some direction to be given or some Motion to be made before the Geneva Arbitrators for adjournment, or in some way for preventing them from going on with the consideration of the Case before it is decided whether the Claims as placed before them are within their jurisdiction.
  EARL GRANVILLE: My Lords, I can only state that we have most carefully considered the subject. The statement the noble Marquess has made is perfectly accurate as to the fact that some step must be taken within two or three days as to the course to be pursued. But I remember once hearing my
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  noble Friend opposite (the Earl of Derby) quote an old diplomatic saying to the effect that no question is indiscreet, but the answer may be so. I think I may reserve to myself, at all events, another couple of days before I go into the explanation which I shall certainly have to give at the beginning of next week.
  LORD WESTBURY: My Lords, I will not now enter into a general discussion, though a time must come when this important subject must be discussed fully. The character of the country for common sense and intelligence requires it. When we parted for the holidays we were contented to remain in a certain degree of mystery and confusion; but we could not have imagined that mystery would have been so darkened, and that confusion so much worse confounded, by the addition of this Supplementary Article. As to the Treaty itself, I think three boys of ten years old might have succeeded in making a more intelligible one. However, as to the composition of the Treaty, that is a matter with which I have now little or nothing to do. I am principally concerned with the error which it appears to me has been committed by Her Majesty's Government in the Additional Article which they have proposed to the United States and which is still greater than that which was committed in the Treaty itself. The document is proposed to the United States as a satisfactory thing, and at the same time as a fulfilment to this country of the pledge which Her Majesty's Government had given, that under no state of things would they be induced to enter into arbitration on the Indirect Claims or proceed with the Treaty until the Indirect Claims had been unequivocally withdrawn. Now, what the Government understand by the unequivocal withdrawal of these Claims must be answered by the language of this Article; and we find in it that, instead of an unequivocal withdrawal, there is no withdrawal at all. It is a promise for the future, and, by implication, a confirmation of the past. If Her Majesty's Government have a notion that supposing the Article were signed in all its integrity, the Indirect Claims would be barred, they will be miserably undeceived when its legal effect comes to be considered. My Lords, I am not going to constitute myself the legal adviser of Her Ma-

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  jesty's Government, but I may speak with some sort of claim to the title of their friend when I warn them that they had better ask their legal advisers whether it is not the duty of an arbitrator to exhaust the reference made to him, and whether this Supplementary Article would, in terms and in law, unequivocally discharge the Arbitrators from the duty of adjudicating and giving some decision on the Indirect Claims now formulated before them, and which that Supplementary Treaty declines to withdraw. That is a very serious subject for consideration, and they had better take it into account. My Lords, another thing has occurred during the Recess which cannot fail to interest us. That is the revelation made by Sir Stafford Northcote, that a promise had been given by the American Commissioners to the English Commissioners that these Claims should not be brought forward. I want to know under what circumstances that promise was given? I want to know whether this was not the state of things?—that the Commissioners had before them the Treaty as it is now worded, and that our Commissioners desired an alteration in the shape of a withdrawal of the Indirect Claims, and that the American Commissioners said—"No; we should have great difficulty with the Senate; do not insist on it; be content with our personal promise that these Indirect Claims shall not be brought forward." Now, were our Commissioners weak enough to do any such thing? Were their principals—our Government—weak enough to accept anything of the kind? Was it intended that this promise should be communicated to the Senate, or was it intended that the Treaty should remain and the Senate should be left under the impression that there bad been no alteration in it, by which the American Commissioners would be guilty of an imposition on their own Senate, and we should be guilty of abetting and assisting them in the commission of that imposition? If that promise were given, as Sir Stafford Northcote unequivocally says it was, and if, when given, it was communicated to Her Majesty's Government, I wish to know, when my noble Friend (Earl Granville) got that information, why he did not impart it to Parliament? I wish also to know why my noble Friend continued in the idle occupation of arguing
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  on the construction of the Treaty if he had any right to believe there had been a promise that, whatever the language of the Treaty, it should only be acted on in the sense of the. Indirect Claims not being brought forward, or attempted to be brought forward, against this country. My noble Friend has unfortunately been brought into the position that these Claims have been formally and duly lodged. Is it the intention of my noble Friend to hold up this Supplemental Treaty in the face of the House and of the country as a proof that he has always insisted on the withdrawal of those obnoxious Claims? It may be necessary at some future time to substantiate the statements to which I have just alluded as to the promise alleged to have been given by the United States' Commissioners. It would be a painful thing to do; I would, however, rather we should be outwitted in any way than that we should be outwitted in the manner in which we should prove to be outwitted if the imaginary case I have put before your Lordships should turn out to be an accurate narrative of the facts.
  EARL GRANVILLE: I hope your Lordships will excuse me if I say one or two words after what has fallen from the noble and learned Lord (Lord Westbury.) The noble and learned Lord has been good enough to say he wished to make a "friendly communication" to Her Majesty's Government, and he made it in that kind manner in which he sometimes favours us on the Treasury bench. He says that this important question must be thoroughly debated in substance and detail, for the honour of the country requires it, and this House will demand it. I entirely agree with him; but I put it to your Lordships whether the best means of securing such a discussion is for the noble and learned Lord to get up and ask a number of Questions which he has been warned we cannot answer at this moment, instead of reserving his invective against the course which Her Majesty's Government have pursued for an occasion when we shall be able to defend ourselves and give the answer which the noble and learned Lord wishes for as to the advice which our professional advisers have given us—and, in short, clear ourselves from the insinuations which the noble and learned Lord, without any foundation, has thought fit to cast on us.
  LORD REDESDALE: My Lords, there is a point which I think requires consideration, and it is that Parliament has a right to claim more information with regard to this Treaty than any other, inasmuch as the Arbitration provided by the Treaty may result in an award against us of some millions of money, which Parliament will have to vote. I believe there is no instance of treaties having been made by which this country undertook the payment of large sums of money without some consultation with Parliament before ratification.
  House adjourned at Six o'clock, to Monday next, a quarter before Five o'clock.