No. 8.
Mr. Fish to General Schenck.

No. 144.]

Sir: I have laid the note from Earl Granville, addressed to you, bearing date the 3d of February instant, before the President, who directs me to say that he sincerely desires to promote that firm and abiding friendship between the two nations to which the note so happily refers.

It was tinder the inspiration of such sentiments that he accepted the invitation of Her Majesty’s Government for the establishment of a Joint High Commission to treat and discuss the mode of settling certain [Page 430] questions referred to therein, and suggested on his own part that the proposed Commission should also have authority to consider the removal of the differences which arose during the rebellion in the United States,, growing out of the acts committed ‘by the vessels, which have given rise to the claims generically known as the “Alabama claims.”

It was his earnest hope that the deliberations of the Commission would result in an acceptance by Her Majesty’s Government of the proposition, submitted by his direction, that a gross sum be agreed upon and paid to the United States, as an amicable settlement of all claims of every description arising out of such differences, instead of the lengthened controversy and litigation which he foresaw must attend any plan of arbitration. He was the more solicitous that such an amicable settlement, without the intervention of third parties, should be adopted, because he feared that so thorough and comprehensive a presentation before the Tribunal of Arbitration of the matters of law and of fact on which the claims of this country rest, as it would be his duty to cause to be made, might, for the moment, revive past excitements and arouse unnecessary apprehensions, if not imperil those ties of international kindness and good will he so much desires to strengthen and make perpetual.

The regret which he felt for the rejection by Her Majesty’s Commissioners of the proposition for an amicable settlement is revived with great force by the necessity of this correspondence.

The proposition for a Joint High Commission, which was made by Her Majesty’s Government, would not have received the approbation of the President had he supposed it was not to comprehend a consideration and adjustment of all the differences growing out of the acts of the cruisers; nor could he have given his sanction to the Treaty had it been suggested to him or had he believed that any class of the claims which had been presented by this Government were excluded by the terms of submission from presentation on the part of this Government to the Tribunal of Arbitration. It was, in his appreciation, the chief merit of the mode of adjustment adopted by the Commission, that it was on both sides a frank, full, and unreserved surrender to impartial arbitrament, under the rules therein prescribed, .of everything that had created such differences. Whatever degree of importance might here or there be attached to any of these complaints, the President desired and intended, as had the American Commissioners, that all, of every form and character, should be laid before the Tribunal for its final and absolute disposition, either by recognition and settlement, or by rejection, in order that in the future the harmony of personal and political intercourse between the two countries might never again be disturbed by any possible phase of the controversy.

In his opinion, since entry upon a thorough trial of the issues which divide the two Governments could not be avoided, the claims for national or indirect losses, (referred to in the note of Earl Granville,) as they are put forward by this Government, involve questions of public law which the interests of both Governments require should be definitely settled.

Therefore it is with unfeigned surprise and sincere regret that the President has received the intimation, conveyed in Earl Granville’s note, that Her Majesty’s Government hold that it is not within the province of the Tribunal of Arbitration to decide upon certain claims for indirect losses and injuries.

His Lordship, however, does not assign any reason for the opinion that losses and injuries with respect to which there has been no concealment—which [Page 431] were presented to the British negotiators at the opening of the discussion in precisely the same manner as they are put forward in the “Case”—not as claims for which a specific demand was made, but as losses and injuries consequent upon the acts complained of, and necessarily to be taken into equitable consideration in a final settlement of all differences between the two countries, which remained unchallenged through the entire negotiations, and not relinquished in the Treaty, but covered by one of its alternatives, are not within the jurisdiction of the Arbitrators.

Unadvised as to the reasoning which has brought Her Majesty’s Government to the opinion stated by Lord Granville, the President is unable to adopt it; but, being convinced of the justice of his views that the Treaty contemplated the settlement of all the claims of the United States, is of the opinion that he could not abandon them, except after a fair decision by an impartial arbitration. He seeks no meaning in the Treaty which is not patent on its face; lie advances no pretensions at Geneva which were not put forth pending the negotiations at Washington.

This Government knows not where to find the meaning or the intent of the Treaty unless within the Treaty itself.

The object of the Treaty, as declared in its preamble, was “to provide for an amicable settlement of all causes of difference between the two countries;” but the Treaty is not, of itself, the settlement; it is an agreement between the Governments as to the mode of reaching a settlement, and its Article XI engages the contracting parties to consider the result of the arbitration as a Ml, perfect, and final settlement of all the claims. Until that be reached, no proffer of withholding an estimate of the indirect losses, dependent on the hope of an amicable settlement, can be claimed as a waiver or an estoppel.

The first article recites that differences have arisen between the two Governments, and still exist, and provides, “in order to remove and adjust all complaints and claims on the part of the United States, that all the claims growing out of acts committed by the aforesaid vessels, and generically known as the ‘Alabama claims,’” be referred to a tribunal of arbitration, to be composed as therein provided. There is no limitation or restriction to any part or description of the claims. All the claims growing out of certain acts, and generically known as the “Alabama claims,” were referred. What they were is a question of fact and of history. Which of them are well founded is a question for the Tribunal of Arbitration.

What are called the indirect losses and claims are not now put forward for the first time. For years they have been prominently and historically part of the “Alabama claims.”

It would be superfluous to quote, or, perhaps, even to refer to, particular passages in the published instructions of this Government to their minister to Great Britain; in the notes of that minister to Her Majesty’s Principal Secretary of State for Foreign Affairs; or in other public papers, to show that the expectation of this Government has, from the beginning of the acts which gave rise to the “Alabama claims,” been that the British Government would indemnify the United States. Incidental or consequential damages were often mentioned as included in the accountability.

In the progress of the acts which gave rise to the claims, high British authority was not wanting to warn Her Majesty’s Government in the House of Commons that” they had been inflicting an amount of damage on that country (the United States) greater than would be produced by [Page 432] many ordinary war” and to indicate, as part of that damage, the losses to whose presentation exception is now taken.

Public men in both countries discussed them, while the public press on the one side and on the other advanced and combated them with an earnestness and warmth that brought them into a prominence beyond the direct losses and injuries sustained by individuals.

A detailed statement of their claims, enumerating and setting forth the indirect losses precisely as they are advanced in the Case, was submitted by the American negotiators to the Joint High Commission in the first discussion of the claims, on the 8th day of March, and appeal in the Protocol, approved on the 4th day of May.

Her Majesty’s Government, therefore, cannot, in the absence of any specific exclusion of these damages by the Treaty, be said to be taken unawares by their presentation to the Tribunal, and the President was not at liberty to regard as withdrawn or settled any of the claims enumerated in a statement prepared and approved by the Joint High Commission after their discussions were closed, and within four days of the signing of a treaty which declares that the differences which” had arisen with respect to the “Alabama claims” still exist. Appearing thus, from whatever cause, not to have been eliminated from the , enumerated claims of the United States, the President had not the power, of his own accord, to withhold them from the Case to be presented to the Tribunal of Arbitration; but in frankness and in sincerity of purpose to remove, in the spirit of the Treaty, all causes of difference between the two Governments, he has set them forth before the Geneva Tribunal, content to accept any award that the Tribunal may think fit to make on their account.

It is within your personal knowledge that this Government has never expected or desired any unreasonable pecuniary compensation on their account, and has never entertained the visionary thought of such an extravagant measure of damages as finds expression in the excited language of the British press, and seems most unaccountably to have taken possession of the minds of some, even, of the statesmen of Great Britain.

A mixed commission is now in session in this city, under the Treaty, to which are referred all claims of citizens or subjects of either Power (other than Alabama claims) which arose out of acts committed during a specified period.

In the correspondence which preceded the agreement for the meeting of the Joint High Commission which negotiated the Treaty, language was purposely agreed upon and used to express the idea which the representatives of the two Governments entertained, that no claim founded on contract, and especially, no claim on account of the rebel or confederate cotton debt, was to be presented. Similar language, and for the same avowed and admitted purpose, was used in the Treaty.

Among other claims of an unexpected character presented by the agent of the British Government, there was one for a part of the confederate debt, which is understood to be held in Great Britain to the extent of many millions. Immediately on its presentation the United States remonstrated, and requested the British Government to instruct their agent to withdraw that claim. Their remonstrance was unheeded; their request was not answered. If any instruction was given, this Government was not informed thereof, and it failed to be observed; and the claim was pressed to argument. The United States demurred before the commission to its jurisdiction over claims of that description, [Page 433] and the decision of the commission disposed of the case adverse to the claimant.

The attitude of the two Governments is now reversed, with the difference in favor of the United States, that there was no question raised as to the understanding of both Governments at the date of the Treaty, with reference to the exclusion of claims of the character then presented.

The United States seek not to be the judge in their own case.

The course which they pursued afforded a happy solution to what might have been a question of embarrassment.

They desire to maintain the jurisdiction of the Tribunal of Arbitration over all the unsettled claims, in order that, being judicially decided, and the questions of law involved therein being adjudicated, all questions connected with or arising out of the Alabama claims, or “growing out of the acts” of the cruisers, may be forever removed from the possibility of disturbing the perfect harmony of relations between the two countries.

The President regrets that there should be any difference of opinion between the two Governments on any question connected with the Treaty.

He indulges, however, the earnest hope that the disposition which has been equally manifested by both Governments to remove all causes of difference between them will bring them to an agreement upon the incidental question which has arisen, and will allow no obstacle to deprive the world of the example of advanced civilization presented by two powerful States exhibiting the supremacy of law and of reason over passions, and deferring their own judgments to the calm interpretation of a disinterested and discriminating tribunal.

I am, sir, your obedient servant,