Lord Clarendon to Mr. Thornton
Sir: Her Majesty’s government, since their accession to office, have had before them your telegrams of the 26th and 30th of November, your dispatch, No. 350 of the 30th of November, and your final telegram of the 21st of December, respecting the convention for the settlement of outstanding claims, signed by my predecessor and Mr. Johnson on the 10th of November. Mr. Johnson has also placed in my hands a telegram which he received on the same day, and which, with the exception of a passage in which it is said, “in the case of any and every claim the arbitrator or umpire may be the head of a friendly foreign state or nation,” is identical with yours of the 21st instant.
It is therefore with this last telegram that her Majesty’s government are especially called upon to deal; but before adverting to it I must [Page 436] observe that her Majesty’s government understand that Mr. Seward’s objection to the convention signed by my predecessor and Mr. Johnson turns chiefly on the distinction made in that convention between general claims and the so-called “Alabama claims.”
Mr. Seward desires to expunge from the convention the passages that relate to those claims, and to leave them to be dealt with on the same footing as other claims. The passages thus proposed to be expunged are the last paragraph of article II and articles IV, V, and VI of the convention.
Mr. Seward, anticipating a difficulty that might be raised by her Majesty’s government to submitting to the arbitration of any private individual who might be selected as arbitrator or umpire by the commissioners questions of principle such as would arise in the consideration of the Alabama claims, now proposes to insert in article I of the convention passages which should admit generally of reference to a foreign sovereign or state of any such questions arising out of any claims whatever. By such a process provision would be made, though in a more comprehensive form, for the reference of the Alabama claims, in case of need, to the arbitration of a foreign sovereign or state, which was contemplated in articles IV and VI of the signed convention.
Mr. Seward further desires that the convention should be made to resemble as closely as possible the convention of 1853, as being more likely in that shape to be acceptable to the Senate of the United States.
Her Majesty’s government, after full consideration of the matter, and being no less desirous than their predecessors and Mr. Seward himself to come to a settlement on the difficult and complicated question of mutual claims, are prepared to meet the wishes of the government of the United States in the manner which I will now explain to you.
They agree with Mr. Seward that it is desirable to adopt as closely as possible the terms of the convention of 1853.
They also agree to expunge the last paragraph of article II, and also articles IV and VI of the signed convention, which relate specifically to the “Alabama claims;” but they think that with a slight alteration, to be presently explained, it would be desirable to retain the terms of article V, though not embodied in a distinct article.
They further agree in the principle involved in Mr. Seward’s proposed insertion in article I, under which reference to the decision of a friendly sovereign or state would be admissible in certain cases.
It appears, however, to her Majesty’s government that, besides involving a very wide departure from the terms of the same article in the convention of 1853, the proposed insertion would render the article obscure and complicated, difficult of construction, and still more difficult in operation, and would tend to protract almost indefinitely the labors of the commission.
Her Majesty’s government fully concur in the necessity of providing in the convention for a more solemn arbitration, where questions of principle in which the commissioners cannot agree are involved, than could be expected from any private individuals selected by the commissioners. Such questions may arise not only in regard to the “Alabama claims,” but in regard to many other classes of claims which may be brought before the commissioners, and it seems to her Majesty’s government highly important that such questions should be decided by the arbitration of a foreign sovereign or state, inasmuch as they will turn on points of international law, comity, or equity, in the consideration of which a foreign sovereign or head of a state may call to his assistance the learning and intelligence of any of their subjects who have made such matters their especial study.[Page 437]
But it seems to her Majesty’s government that it would scarcely be courteous to any sovereign or head of a friendly foreign state, in default of the two governments agreeing within six months as to whom reference should be made, to leave to the commissioners to select him. Such selection could only rightly be made by the two governments themselves, as being co-ordinate in rank and dignity, and therefore fitting applicants for the good offices of one of their compeers; while, on the other hand, for the reasons that I have stated, the question on which the commissioners may be at issue can only be satisfactorily determined by a friendly foreign sovereign or state.
Her Majesty’s government do not anticipate that any difficulty need arise between the two governments in selecting an arbiter of that class. No such difficulty was felt, in the corresponding case of the convention of 1827 respecting the northwest boundary, when the King of the Netherlands was agreed upon by the British secretary of state and the United States minister in London.
Her Majesty’s government observe, moreover, that in Mr. Seward’s proposed insertion no allusion is made to the production before the commissioners or arbitrator of the official correspondence which may have taken place between the two governments respecting any claims. This they conclude to be an oversight; but if hot, her Majesty’s government would not be disposed to insist upon it.
They observe, further, that no provision is made for accepting the decision of the arbitrator, whether chosen by the commissioners or chosen by the governments, as ruling not only the specific claim submitted to him, but all other claims of the same class. Her Majesty’s government think it very essential that some such provision should be made, as otherwise the same principle may be submitted to arbitration over and over again, and so the sittings of the commissioners might be indefinitely prolonged.
Bearing all these considerations in mind, her Majesty’s government have framed a fresh draft of convention, which I now inclose, and which I have to instruct you to submit to Mr. Seward, together with a copy of this dispatch.
This draught has been framed on the principle of adhering as closely as possible to the terms of the convention of 1853.
Thus the first article, with the exception of the introduction of the words “by and with the advice and consent of the Senate,” and the substitution of “Washington” for “London,” nearly textually reproduces the same article of the treaty of 1853.
The second article has necessarily been altered to meet the special requirements of the present case. The proposed alterations up to the end of the third paragraph are printed in italics, so that they may be more easily distinguished. The reasons for proposing them are already explained.
After the third paragraph a paragraph has been introduced varying but slightly from the fifth article of the signed convention. It seems necessary to adopt this provision to meet the case of the principle of a claim being decided by an arbitrator, leaving to the commissioners and the general arbiter named by them to determine, if the case arises, the amount of compensation payable to the claimant.
After the before mentioned paragraph is inserted the penultimate paragraph of the signed convention, as well as articles VII and VIII of the same.
Drawn in this shape article II will, except as regards the passages inserted in italics and the fourth paragraph, nearly textually reproduce the corresponding article of the convention of 1853.[Page 438]
The remaining slight alterations in articles IX and XI of the signed convention are adopted.
It remains for me to say that her Majesty’s government prefer the form of convention to that of protocol, as calculated to lead to an earlier settlement of the preliminary discussion between the two governments. If a protocol were adopted in the first instance, its provisions would be operative until it were embodied in a convention; and the arrangement would require, as her Majesty’s government understand the matter, to be twice submitted to the Senate for assent, whereby much time would be lost, with all the inconvenience of keeping open a question which necessarily attracts much attention, and of deferring the adjudication on claims, in the early settlement of which so many subjects and citizens of the two countries are deeply interested.
I have only to add that if the inclosed draft is accepted by Mr. Seward, Mr. Johnson might be authorized by telegraph to sign it, in which case it might be returned to Washington so as to admit of its being laid before the Senate by the middle of January, and pronounced upon by that body before the rising of the Congress on the 4th of March.
Her Majesty’s government will greatly rejoice if their first interchange of communications with the government of the United States should be attended with a settlement of the complicated matters which form the subject of my present dispatch.
I am, &c.,
Edward Thornton, Esq., C. B., &c., &c., &c.