Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part II, Volume II
No. 97.
General Schenck to Mr. Fish.
London, June 8, 1872. (Received June 21.)
Sir: I have the honor to forward herewith copies of all the correspondence which has taken place between Lord Granville and myself relative to the proposed new Treaty Article in regard to indirect claims, since the 31st ultimo.
I am, &c.,
Earl Granville to General Schenck.
Sir: In reply to the communication which I received from you this morning, I beg to inform you that Her Majesty’s Government hold that by the Article adopted by the Senate, cases of bad faith and willful misconduct are brought within the scope of the proposed agreement which deals with pecuniary compensation.
[Page 563]It appears to be the view of the Government of the United States that such cases are not a fit subject of pecuniary compensation, and I am informed by Sir Edward Thornton that Mr. Fish is of opinion that the article adopted by the Senate is capable of improvement.
The President thinks that the Article last proposed by Her Majesty’s Government is also capable of improvement.
The American Government state that “it is not believed that there is any such difference of object between the two Governments in the definition and limitation which each desires to places upon the liability of a neutral, as to prevent an agreement on the language in which to express it, if time be allowed for the exchange of views by some other means than the telegraph.”
The British Government must decline to sign a treaty which is not in conformity with their views, and which does not express the principles which the American Government believes to be entertained by both parties to the negotiation, and which, immediately after being signed, would become the subject of negotiation with a view to its alteration.
In this position they repeat their readiness to extend the time allowed for the Arbitration to meet at Geneva, and they have, as your are aware, provided Sir E. Thornton with full powers to sign a treaty for this purpose; or they are willing to concur in a joint application to the Tribunal of Arbitration at once to adjourn the proceedings of the arbitration, which they are advised it is within the competence of the Arbitrators to do upon such an application without afresh treaty.
I have, &c.,
General Schenck to Earl Granville.
London, June 1, 1872.
My Lord: I received an hour ago your note of this date, in which you reply to the telegram of Mr. Fish, which I communicated to you this morning, and inform me that Her Majesty’s Government decline to sign a treaty of the character and with the arrangement for the future, suggested by Mr. Fish, but repeat their readiness to extend the time for the Arbitrators to meet at Geneva, for which purpose Sir Edward Thornton has full powers to sign a treaty; or they are willing, you state, to concur in a joint application to the Tribunal of Arbitration to adjourn their proceedings, which they are advised it is within the competence of the Arbitrators to do upon such an application without a fresh treaty.
I have sent the full text of your note to Mr. Fish by telegraph.
I have, &c.,
Earl Granville to General Schenck.
Sir: In reply to the question which you put to me this morning, I have to state to you that Her Majesty’s Government consider that the Arbitrators must no doubt meet on the 15th of June, but the fifth Article of the Treaty, though it contemplates the delivery of written arguments on that day, does not make the further prosecution of the arbitration impossible, if, on that day, neither party presents any written argument. The Arbitrators have full power to adjourn, and they have also full power to call, after the 15th, for any further statements or arguments, written or oral, from time to time, as they may think fit. If, therefore, both parties agree not to present any argument till a later day than the 15th, requesting the Arbitrators to adjourn, and if the Arbitrators should, on any day to which they may have adjourned, accept the argument which both parties may then wish to tender to them, this will be quite within their power.
I have, &c.,
Earl Granville to General Schenck.
Sir: I laid before the Cabinet the telegraphic message from Mr. Fish, which you communicated to me on the 3d instant.
That message is only in answer to a portion of the objections raised by Her Majesty’s Government to the alterations in the draught Article proposed by the Senate, and does not notice the other points to which I called your attention in my letter of the 28th ultimo, and which were intended to show that the effect of those alterations is to transfer the application of the adjectives “indirect” and “remote” from one subject with reference to which they have been used in the recent correspondence, viz, claims made as resulting from the “acts committed” by certain vessels, to a different subject, viz, those made as resulting from “the failure to observe neutral obligations.” It is evident that a loss which is direct and immediate with reference to the former subject, may be indirect and remote with reference to the latter, and this appears to Her Majesty’s Government to be actually the case, with respect to the claims which it is assumed the Government of the United States still intend to make before the Arbitrators. The Government of the United States must see that it is impossible for Her Majesty’s Government to authorize Her Majesty’s Minister at Washington to sign a treaty, the words of which appear to Her Majesty’s Government to say one thing, upon a mere understanding to the contrary effect.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
Earl Granville to General Schenck.
Sir: There is a difference of opinion between the Government of the United States and Her Majesty’s Government as to the necessity of presenting the written or printed arguments on the 15th of June. I beg to suggest to you that, 1st, the fifth Article is directory; it speaks of something which “it shall be the duty of the Agents” of the two Governments to do within a certain time. It does not say that the Treaty is to lapse if this duty is neglected or not performed by the Agents or Agent of both Governments, or of either of them. 2d. It would hardly be suggested that the Treaty would lapse, if one only of .the two Agents omitted to lodge a written or printed argument, such as this Article contemplates. Yet there is no more reason for saying that such a written or printed argument, to be then delivered, is a sine qua non of the Treaty, if both Agents omit it, than if one only does so. 3d. The Article is, in its nature, one of procedure only, for the mutual information (it may be) of the parties, and entirely for the assistance of the Arbitrators, but mainly for the benefit and advantage of the parties themselves, who, in such a matter, may or may not choose to avail themselves of it. 4th. Nor would any practical inconvenience or disadvantage arise to either party (in case the arbitration proceeds) from an agreement not to present such arguments until a later date, the Arbitrators having full power at any later date to admit such written or oral arguments as they may think fit.
Her Majesty’s Government would make no difficulty as to a suitable arrangement for the presentation of the arguments if a convention were signed by Mr. Fish and Sir Edward Thornton and ratified by the Senate, although there was not time for the ratifications to be exchanged in London previously to the 15th of June.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
Earl Granville to General Schenck.
Sir: I have to state to you that with the view of obviating the difficulty connected with the meeting of the Arbitrators at Geneva on the 15th instant, and the presentation [Page 565] of the written or printed argument under the fifth Article of the Treaty on that day, Her Majesty’s Government are still ready either to agree in an application to the Arbitrators on the 15th to adjourn at once without the presentation of the argument of either Government, or to conclude a new arrangement with the treaty-making power of the United States for the enlargement of the time; or, instead of the amendments to the Treaty Article, which Her Majesty’s Government last proposed, they are willing to conclude it with the following additions: First, to insert after the paragraph, as altered by the Senate, the words “the remote or indirect losses mentioned in this agreement, being losses arising remotely or indirectly and not directly from acts of belligerents.” Secondly, to insert after this paragraph another paragraph: “Further, the stipulations of this Convention as to future conduct have no reference to acts of intentional ill-faith or willful violation of international duties.”
The objection to negotiating a proposition which involves the idea that either country may be guilty of intentional ill-faith or willful violation of its international duties might be met by such declaration as that proposed in the second of these additions being inserted in the Treaty Articles, or, if the United States should prefer it, by an interchange of notes approved by the Senate at the time of ratification.
I have the honor to be, sir, your most obedient, humble servant,
General Schenck to Earl Granville.
London, June 6, 1872.
My Lord: I had the honor to receive late last night your three notes of yesterday’s date, containing several suggestions for a modification of the proposed supplementary Article, and with a further explanation of the views and reasons therefor of Her Majesty’s Government, and in which you also present again suggestions and views in relation to questions about the meeting of the Arbitrators and the presentation of arguments on the 15th instant.
Without commenting on or replying to these suggestions, views, or reasons which you desire to bring thus again and more specifically to the notice of my Government, I have to inform you that I have hastened to transmit the full text of each of these communications by telegraph to Mr. Fish, at Washington.
I have the honor to be, my Yord, with the highest consideration, your Lordship’s most obedient servant,
General Schenck to Earl Granville.
London, June 6, 1872.
My Lord: In the conversation we had yesterday, and which was resumed this morning, you stated to me that Her Majesty’s Government have always thought the language proposed by them in the draught Article, as it stands, sufficient for the purpose of removing and putting an end to all demand on the part of the United States in respect to those indirect claims which they put forth in their Case at Geneva, and to the admissibility of which Her Majesty’s Government have objected; but that there were those who doubted whether the terms used were explicit enough to make that perfectly clear, and to prevent those same claims from being put forward again. I concurred with you in your view as to the sufficiency of the language used in that clause of the proposed Article, and which the Government of the United States had accepted; and I repelled the idea that anybody should think it possible that the Government of the United States, if they should yield those claims for a consideration in a settlement between the two countries, would seek to bring them up in the future, or would insist that they were still before the Arbitrators for their consideration.
I am now authorized, in a telegraphic dispatch received to-day from Mr. Fish, to say that the Government of the United States regards the new rule contained in the proposed Article as the consideration for, and to be accepted as, a final settlement of the three classes of the indirect claims put forth in the Case of the United States to which the Government of Great Britain have objected.
I have the honor to be, with the highest consideration, my Lord, your Lordship’s most obedient servant,
Earl Granville to General Schenck.
Sir: In a telegram, which I have this morning received from Sir Edward Thornton, he remarks, with reference to the first of the two passages which, in my letter to you of the 5th instant, I stated that Her Majesty’s Government proposed to insert in the article in lieu of the amendments last proposed by them, that Mr. Fish had frequently, in conversation with him, objected to the use of the word “belligerent,” and wishes that indirect claims arising out of acts committed by persons other than recognized belligerents, as well as belligerents, should be agreed to be not admissible for the future.
If Mr. Fish should still entertain the same opinion, Her Majesty’s Government would he quite content that the passage in question should run thus:
“The remote or indirect losses mentioned in this agreement, being losses arising remotely or indirectly, and not directly, from acts of war.”
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
General Schenck to Earl Granville.
London, June 8, 1872.
My Lord: I received at seven o’clock last evening your note of yesterday referring to what Sir Edward Thornton has stated to you in regard to Mr. Fish’s objection to the word “belligerent,” and suggesting a modification of language to obviate that objection.
I transmitted the full text of your note by telegraph to Mr. Fish immediately. At the same time I informed him that I am giving your Lordship no ground for believing that the Government of the United States will be able now to assent to any change of the rule as expressed by the Senate amendment.
I have the honor to be, with the highest consideration, your Lordship’s most obedient servant,