[From British Blue Book "North America" No. 9, (1872,) p. 25.] No. 62. Sir E. Thornton to Earl Granville.1 WASHINGTON, May 27, 1872. (Received June 8.) MY LORD: I have the honor to inclose copy of a note, dated the 25th instant, from Mr. Fish, and its inclosure, which I received yesterday at half past 1 p. m. It transmits copy of a resolution of the Senate, which was agreed to at half past 8 p. m. of the 25th instant, and which recommends to the President the negotiation with the British Government of an Article supplementary to the Treaty of Washington of May 8, 1871, to be ratified afterward by the Senate in the terms thereinafter mentioned. Mr. Fish had, during the night of the 25th instant, given me what he believed to be the words of the Article as adopted by the Senate, but he could not guarantee their being correct. I thought it best, however, to telegraph them at once, though conditionally, to your Lordship, and they afterward turned out to be the exact words adopted by the Senate. Your Lordship is aware that the whole of the discussion has been carried on in secret session, and as much annoyance was felt at the unauthorized publication by the New York Herald of the confidential documents which had been sent to the Senate on the 13th instant, Senators have been generally extremely reticent as to what has passed in the secret sessions. From the best information, however, which I can obtain, I should imagine that the Committee on Foreign Relations, by a vote of 6 to 1, agreed to report an Article very nearly in the words in which it has been finally adopted by the Senate. It was reported to the Senate on the 22d instant, and was discussed on that and the three following days for several hours; the session on the 24th instant lasted for eight hours, finishing at 11.45 p. m. The majority by which the inclosed resolution was passed, has been variously stated, but I am inclined to think that the numbers were 43 to 8. It is said that several Senators were absent, and that some of those who were present refrained from voting. I have, &c., [Inclosure 1 in No. 62.] EDWD. THORNTON. Mr. Fish to Sir E. Thornton. DEPARTMENT OF STATE, SIR: I have the honor to inclose a copy of a resolution of the Senate of the United States, expressing its willingness to advise and consent to the adoption of a supplemental Article to the Treaty of Washington of May 8, 1871. I have, &c., HAMILTON FISH. [For inclosure 2 in No. 62, see p. 526.] 1 The substance of this dispatch was received by telegraph on the 27th of May. No. 213.] No. 63. Mr. Fish to General Schenck. DEPARTMENT OF STATE, Washington, May 28, 1872. SIR: I have to acknowledge the receipt of your dispatch of the 14th instant, No. 225, relating to the proposed new Article to the Treaty of May 8, 1871, and the Memorandum which accompanied it. That Memorandum is a very able and comprehensive review of the case, and presents the position of the United States, in the main, very fully. The object of the United States in insisting on retaining the indirect claims before the Tribunal was: I. The right under the treaty to present them. II. To have them disposed of and removed from further controversy. III. To obtain a decision either for or against the liability of a neutral for claims of that description. IV. If the liability of a neutral for such claims is admitted in the future, then to insist on payment by Great Britain for those of the past. V. Having a case against Great Britain, to have the same principle applied to it that may in the future be invoked against the United States. I am, &c., No. 64. HAMILTON FISH. General Schenck to Mr. Fisk. [Telegram.] LONDON, May 28, 1872. (Received at 1.15 a. in.) I communicated your telegram of yesterday to Lord Granville. He submitted it to the Cabinet, who took it under long consideration. He has just given me their answer. It is as follows: Her Majesty's Government are of opinion that the definition by the Senate of the principle which both Governments are prepared to adopt for the future is so vague that it is impossible to state to what it is or is not applicable, and they believe that it would only lead to future misunderstandings. They prefer the article as they had draughted it, but have no objection to accept the article in the form proposed by the Senate, with the substitution of the words "of a like nature," for the words "for remote or indirect losses," and the substitution of the words "such want of due diligence on the part of a neutral," for the words "the failure to observe neutral obligations." In reply to my inquiry of Lord Granville, whether any possible interpretation of the form proposed by the Senate would be held by them to prevent taking before the Arbitrators, to be considered by them in making their award, that part of the claims which relates to the cost of pursuit and capture of cruisers, he states that he must on behalf of Her Majesty's Government decline to answer my question as to the effect of the Article as altered by the Senate, or to state what possible construction it may bear. Lord Granville says he has informed Sir Edward Thornton that he may tell you Her Majesty's Government will not insist on the words you desire to omit from the preamble if you will give assurance in writing that the United States will agree to the form of note he proposed communicating the Convention on the part of the two Governments to the Tribunal of Arbitration. Lord Granville tells me confidentially that Thornton informed him you had stated that the Committee on Foreign Affairs was ready to recommend the following form: And whereas the Government of the United States contend that the said claims were included in the Treaty, now the two Governments agree that the principle involved in the second of the contentions herein before set forth by Her Majesty's Government will guide their conduct in future in their relations with each other. Which proposal he says they were prepared to adopt. SCHENCK. No. 65. Mr. Fish to General Schenck. [Telegram.] WASHINGTON, May 28, 1872. This Government declines to agree to the proposed altering of the supplementary Article. The establishment of the principle embodied therein has been its object in adhering to the presentation of the indirect claims, and its recognition is the inducement for not pressing them before the Tribunal. FISH. No. 66. General Schenck to Mr. Fish. [Telegram.] LONDON, May 28, 1872. (Received May 29, 7.30 a. m.) Lord Granville has to-night, after another Cabinet, sent me the following further communication: [Earl Granville to General Schenck.] I think it desirable at once to address to you the following observations in addition to what is stated in my letter of yesterday. Her Majesty's Government proposed an Article on the suggestion of the American Government; that Article has been amended by the Senate. Her Majesty's Government are not able to find for it, as amended, any means or standard of interpretation; the words appear to include the willful misconduct of a neutral, as well as a failure from want of due diligence. They cannot suppose this to be the meaning of the American Government. Her Majesty's Government hold all the claims made by the United States for losses which were the direct results of the acts of vessels mentioned in the Treaty, to be claims for indirect losses as the result of the failure to observe neutral obligations. Her Majesty's Government hold many of the claims for the losses above mentioned to be claims for losses which are remote as well as indirect, while resulting from a failure to observe neutral obligations. Her Majesty's Government are unable to signify an assent to a form of Article of which they cannot for themselves discover the scope, and with respect to which, owing, probably, to the difficulty of telegraphic communication, they have not been apprised of the meaning which the American Government attaches to it, or of the reasons which have led to its being proposed. If the Government of the United States think it desirable to give the information which Her Majesty's Government wish to receive on these points, and also think that for that purpose some adjournment of the time of meeting of the Arbitrators at Geneva should take place, Her Majesty's Government would be ready to agree to any suitable proposal for that purpose, which they presume could only be done by a short treaty between the two Governments. 34 A-II SCHENCK. No. 67. Mr. Fish to General Schenck. [Extract.] No. 214.] DEPARTMENT OF STATE, Washington, May 28, 1872. SIR: Late last evening Sir Edward Thornton called at my house, having, as he stated, a telegram from Lord Granville, the general purport of which he mentioned, to the effect that the British Government having received the amendment proposed by this Government to their proposed supplemental Article, would prefer their own draught, but that they would accept the proposed alteration, substituting, however, for the words "for remote or indirect losses," the words "of a like nature," and for the words "failure to observe neutral obligations," the words "such want of due diligence on the part of a neutral." I told him frankly, and earnestly, that no change or alteration of any kind is admissible or can be entertained. I added that the United States now have a case against Great Britain, he interrupting me by saying, "the United States think they now have a case." I proceeded, saying; that it made no difference, that having now a case, they desire to press it for a decision, or to have the principle of exemption of national liability for indirect losses established for the future; that that principle is the equivalent or consideration of abstaining from a demand before the Tribunal for damages on account of the indirect losses; that as now altered, the Article prevents the presentation of indirect claims against the United States, on account of the Fenian raids, while the British draught would exclude only claims arising from the acts of vessels, &c., and under circumstances which may possibly never again occur. He then asked me about the preamble and the proposed note to the Arbitrators. In reply, I told him that it was useless to discuss either while his Government is contemplating any change in the Article. He said it might be well to have an understanding, in order to save time in case his Government accept the alterations made to the Article. In this view, I showed him a draught of a preamble which had been prepared in the Department, reciting, simply, that the two Governments, deeming it advisable that "there should be an additional Article to the Treaty signed at Washington on the 8th day of May, 1871, have for that purpose named as their Plenipotentiaries," &c., and saying that I see no occasion for any other recital; and that as to the proposed note we will not sign it. He ask if there was any objection to their signing such note, to which I replied that we could not control them in that respect; they had the power to make such representations to the Tribunal as they thought proper; that there might be no objection on our part to the former part of the proposed note, but that the latter clause was not necessary, as the effect of the Article accomplished what was then stated as a request; that we would lay the Treaty, if agreed to, before the Tribunal, and our counsel would be guided by it, and would abstain from making any claim on account of the indirect lossess; but I desired not to be committed in advance of the agreement to the Article. I then referred to the question raised by your telegram, received yesterday, as to the effect of the Article upon the claim for expense of pur suit of the cruisers, and added that I did not think there could be any doubt, as both Governments had, through the whole correspendence, treated this as a direct claim. With some reserve and caution, and dis claiming any authority to speak, he remarked that he believed that elaim had been created as a direct claim; one on which the Tribunal was to pass, and decide whether or not it be one for which compensation is to be made. I am this morning in the receipt of your telegram communicating the proposed changes to the Article which Sir Edward Thornton had communicated to me, as above mentioned. Lord Granville's evasion of a reply to your question respecting the pursuit, &c., of the cruisers, is significant and suggestive of caution. It is very possible that the whole thing will fail; if so, this country will stand before the world having done all that it could to maintain the Treaty, and the civilizing principle which it established. The responsibility of failure must rest with Great Britain, who evidently will have shown a reserved intent, and an object of future advantage not avowed. * Much as this Government will regret the failure, it can stand it as well as can Great Britain. There are some things in the telegram received this morning which may require comment; but I incline to hope that what may seem arrogant in Lord Granville's remark, that he will not insist on certain language in the proposed preamble, arises from the constraint of the telegraphic form of communication; and so, too, the suggestion of a condition that assurance be given, in writing, of certain things. As presented in your telegram, these observations appear such as I am confident you would not have listened to, without repelling them. I confidently hope that their unpleasant appearance is to be attributed to the style of telegraphic correspondence. Sir Edward Thornton was told by me, some days since, what I understood would probably be the expected change recommended by the Senate committee. He has made some mistakes in transmitting it. I gave him no copy; he must have reported it from memory. But whatever it was, it was a thing under consideration, and the committee's report was changed by the Senate. I see, therefore, no importance to be attached to a variance in the final action of the Senate from what was at one time expected; although what was expected is different from what Lord Granville has understood to have been expected. I am, sir, your obedient servant, HAMILTON FISH. [From British Blue Book "North America," No. 9, (1872,) p. 27.] No. 68. Sir E. Thornton to Earl Granville.1 [Extract.] WASHINGTON, May 28, 1872. (Received June 8.) With regard to the alterations which Her Majesty's Government desires should be made in the supplementary Article as recommended by the recent decision of the Senate, Mr. Fish said that it was out of the power of the United States Government to accede to them, or indeed to 1 The substance of this dispatch was received by telegraph on the 28th of May. |