Extracts from speeches made in a debate in the House of Lords, 4th of June, 1872.
The Earl of Derby rose and said:
* * * * “Everybody knows that we put one construction on the treaty and that the American negotiators put another. The noble earl [Earl Granville] stated that he conceived the indirect claims were excluded by the treaty as it stands. Now, that matter has been abundantly discussed in both houses, in every newspaper, in every private society, and I think the very utmost for which any one unconnected with the government has ever contended is this, that the language of the treaty was so vague, so ambiguous, so uncertain, that it may be construed either way, and, therefore, our construction was as admissible as that put upon it by the other side. Now I do not think that in a matter of such enormous importance, after the plain warning which had been given us by the speech of Mr. Sumner, after the evidence we had had of the immense consequence which the American Government and people attach to these indirect claims, and the pertinacity with which they had urged them, I do not think it is at all unreasonable to say that in a matter of that kind uncertainty and ambiguity in the language of the document to which you must appeal as the supreme authority upon the matter are not likely to inspire confidence. I will not go into the controversy raised by my noble friend. He says the indirect claims, even if in the treaty, are waived in the protocol, and he referred to the question which has often been discussed as to the meaning of the words ‘amicable settlement.’ Now, the obvious answer to that has often been given. An arbitration is not an amicable settlement: It is a means by which an amicable settlement may be arrived at, but it is not itself a settlement. I do not want to go into that question, for it is enough for my argument to say that in a matter of this kind, with the full knowledge that we have had of what was claimed by the other side, and considering the immense importance of the matter at issue, there ought to have been no doubt or uncertainty.”
Lord Cairns said:
* * * * “We have had conflicting views as to the construction of the treaty fully before us; and now I tell the noble earl that I accept his reference to judicial claims as no compliment, accompanied, as it is, with a sneer that I am capable of making a construction of a document in one place differ from that I should give in another. [Loud cheers.] My lords, I will tell the noble earl something more. He says he talked with a judge half an hour before he entered this house, and he said that the indirect claims were clearly inadmissible. The noble earl speaks of what has been said bjr very learned persons in this country and elsewhere, but he quite misunderstands what those learned persons spoke about. What I understand them to be talking about—and I quite agree with them—I believe that no judge would say that these indirect claims could be admitted for a moment; but that is not the question; the question is, whether the hands of the tribunal at Geneva are sufficiently tied and bound so that they would not be the judges to say whether these are good claims or bad claims. [Hear, hear.] That is what we want to know—that is what my noble and learned friend, who spoke last but one, put very fairly. He said, with regard to the supplementary article, that what the commissioners ought to have done, if they had understood their business, was to have added a new article to exclude these claims. I agree that the claims are preposterous, and that the country and the government never meant to entertain them. But the question is, what ought to be our view as to the construction of this treaty? The noble marquis, the president of the council, taunted the noble marquis behind me with having thought it consistent with his duty to make observations which were highly in favor of the American view of the case.
[Page 552]“I dare say I shall bo taunted, perhaps, in the same way. But I will tell the noble marquis what I consider consistent with my duty. I consider it consistent with my duty to speak the truth—[cheers]—and I don’t care whether it chimes in with the views of the Government of the United States or the government of this country. [Hear, hear.] The noble earl opposite taunted me with having an opinion on this subject which I am afraid to express. I go further, and say that in my belief the strong argument with the United States is not to insist, as the government have insisted, that the construction of this treaty is free from all ambiguity. The government never made a greater mistake than when they went to the United States in the first instance, and said to them, ‘You are making claims not only against all principle, but in flagrant opposition to the treaty.’
“I say, generous and high-spirited men could not have endured language of that kind without making a contest and struggle against it. [Hear, hear.] Now, I tell the noble earl my view about the construction of this treaty. The prime minister says there is no ambiguity; that no sane person could have ever entered into a treaty which had such a construction as America had put on it. The noble earl himself, I believe, in his dispatches uses language peculiarly strong in regard to the construction of the treaty. The commissioners tell us they were responsible for having represented to the government that they understood a promise to be given that these claims would not be put forward by the United States, and to-night the noble earl said that on a particular day the government received a communication from the commissioners saying that the claims were not to be put forward.
“What is the meaning of this? Why were the commissioners to write to the government and say that a promise was given that these claims would not be put forward if the treaty was free of ambiguity? The two things cannot stand together. Take which you like—the treaty is unambiguous, or admit that it is not clear, and rest on the promise given by the commissioners; but you cannot have both. I believe that if you refer any breach of duty to the decision of a tribunal, that tribunal, unless you tie up its hands, will have the right to say what are the extent and the amount of the damage done. * * * * * * *
“I admit that in Mr. Adams’s time, the indirect claims had not been distinctly stated; but in 1868–’69 we had distinct authority as to what had become known as the Alabama claims. That authority is the noble earl opposite, who, last year, before this controversy had arisen, described to the house what the Alabama claims had by official correspondence come to mean. Commenting on the terms of the Stanley-Johnson and Clarendon-Johnson conventions, the noble earl said the claims of the American Government had come to conclude everything, and, therefore, that under the reference proposed in those conventions, almost unlimited damages might have been awarded to the American Government. How then can it be said that the Alabama claims represented a bundle of strictly defined claims, and that the term could not possibly be extended beyond these? The next argument is that the protocol of the 4th of May contains a waiver by the American Government of the indirect claims. I wish I could find it to be so; but I do not find that the American Government waived anything. [Hear, hear.] The American commissioners simply said they wanted us to give them a lump sum; and in the hope of our doing so they would not estimate for the present the amount of the indirect claims.
“After referring to the indirect injury accruing from the transfer to the British flag of a large part of the American mercantile marine, enhanced rates of insurance, the prolongation of the war, and the large sum necessarily required for this and for the suppression of the rebellion, the protocol says: ‘In the hope of an amicable settlement, (meaning the payment of a lump sum,) no estimate was made of the indirect losses, without prejudice, however, to the right of indemnification in the event of no such settlement being made.’ In this I can see no waiver whatever. I have no fault to find with the manner in which the noble earl conducts the argument on this point in his correspondence. The whole of the case on this subject is stated by him with great fairness and frankness, and it is surely better to be frank and fair than, ostrich-like, to run our heads into the sand and fancy that this secures our safety. The noble earl’s, argument is that the waiver of the indirect claims in the event of the amicable settlement proffered by the American commissioners was a waiver which applied to any form of amicable settlement, and, therefore, applied to the form proposed by the British commissioners, and accepted by the United States. That is the whole argument on this part of the case. The American commissioners, in the hope of an amicable settlement by the payment of a gross sum, made no estimate of the indirect losses; the British commissioners declined such a mode of settlement, and Her Majesty’s government maintain that the Americans were bound not to put forward those claims, whatever the form of settlement. * * * * * * * *
“I believe the first copy of the American Case was furnished to the foreign office on the 17th of December, and that twelve additional copies were supplied on the 19th of that month. We all know that the noble earl opposite was suffering from illness at the time; and I am sure that there is no one among us who would impute to him that [Page 553] there was any unnecessary delay on his part, or who does not sympathize with him in the position in which he was placed. That, however, is not the question. I do not know whether many of your lordships have looked at the case of the American Government. There is an old saying, which is applicable to it, to the effect that he who runs may read. You could see from the very title-page of their case that they were making these claims. And who were at the foreign office at the time? There was Lord Tenterden, who, as the noble earl said, was one of the very few men in England who were thoroughly acquainted with this question. There was also Mr. Hammond, at the foreign office, and I confess I can hardly believe that when Lord Tenterden or Mr. Hammond opened the first copy of the American Case, either could have failed to see in the course of five minutes that the United States Government were making those claims—claims, the surrender of which was proclaimed by the noble earl opposite to be the price of the treaty. [Hear.] A month after this, on the 18th of January, the cabinet sat, and although I can imagine that the falling of a bomb-shell could scarcely have created greater surprise and consternation among them than the American Case, yet some considerable time was allowed to elapse before anything was done, although the matter lay on the surface. The question was one not so much for the law-advisers of the Crown as for the ministers who had negotiated the treaty, and who had informed the country that its price was the surrender of the indirect claims.”