Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873
No. 165.
General Schenck to Mr. Fish.
London, May 27, 1873. (Received June 12.)
Sir: The money for payment of the Geneva award has been voted by the House of Commons, and without discussion, as in my No. 416 I predicted to you it would be. On Friday (23d) the clause or resolution went through committee, and last night it was agreed to in the house, but not without the talk which I anticipated.
I send you herewith the report of the proceedings on the 23d, and of the interpellation and debate last night.
You will observe that the discussion was closed by Mr. Gladstone in a speech which, it must be admitted, is characterized by a very fair degree of candor and good feeling.
I have, &c.,
House of Commons, Friday, May 23.
(The Times, Saturday, May 24, 1873.)
The speaker took the chair shortly before 4 o’clock.
the alabama claims.
Mr. Ben thick gave notice that on the vote for the Alabama claims he would call attention to the course taken by Her Majesty’s government in reference to the alteration of international law prior to the negotiation.
english alabama claims.
Sir Stafford Northcote asked the noble lord the under secretary of state for foreign affairs whether the government had received any applications from British subjects for compensation in respect of losses occasioned by the destruction of their property in vessels destroyed or captured by the Alabama, (hear, hear,) and what course Her Majesty’s government had taken or proposed to take in reference thereto.
Lord Enfield. Her Majesty’s government have received certain applications from British subjects for compensation in respect of losses occasioned by the destruction of vessels by the Alabama; these applications have been taken into consideration, and the opinion of the law-officers has been taken. In accordance with their opinion, the board of trade and the various applicants have been informed that Her Majesty’s government is not liable to British subjects for the acts of the Alabama and other similar vessels.
supply.—the alabama claims.
The speaker then left the chair, and the house went into committee of supply.
On the vote £3,200,000 for the payment in satisfaction of the Alabama claims,
Mr. Bentinck objected to proceeding with so important a vote at that late hour of the night, and moved that the chairman report progress.
Mr. Lowe hoped the honorable gentleman would not persevere in the motion, as it was most desirable that the vote should be taken that evening in the interests of the public service. The report could be taken at half past ten on Monday night, when it might be fully discussed, if necessary.
Sir J. Elphinstone also objected to proceeding with the vote of that evening.
Mr. Gladstone said it was for the national interest in the highest sense that when the vote was first proposed there should be no appearance of hesitation on the part of the House of Commons in assenting to it. He should take care that honorable members should have ample opportunity for discussing it when it came on again on Monday.
Colonel Barttelot, while agreeing with the right honorable gentleman that it was not desirable to resist the vote on the present occasion, disclaimed on the part of the House of Commons any responsibility for the payment of the money.
Sir J. Jenkinson thought the whole transaction must be looked upon as matter of national humiliation, and contended that when the Americans refused to withdraw the indirect claims the honor and interest of this country demanded that we should have washed our hands of the treaty. (Hear, hear.) The Times, which was generally supposed to be the government organ, (a laugh,) wound up a long leading article by stating that there were good grounds for supposing that the indirect claims had in effect been paid, although they were nominally excluded.
Mr. Bentinck then, on an assurance having been given by Mr. Gladstone that the report would come on at 9 o’clock on Monday, withdrew the motion to report progress, and the vote was agreed to.
House of Commons, Monday, May 26.
(The Times, Tuesday, May 27, 1873.)
The speaker took the chair shortly before 4 o’clock.
the alabama indemnity.
The house having resumed, Mr. Glyn brought up the report of supply.
On the question that a sum of £3,200,000 be granted in payment of the Alabama claims,
Mr. Bentinck rose, pursuant to notice, to call attention to the subject, observing that the transactions of which the present vote might be regarded as the last stage, formed one of the most remarkable episodes in the history of this or any other country. He expressed his surprise and regret that they should have arrived at such [Page 369] a stage without having been fully discussed in the House of Commons, adding that he could not better show in what position we stood when the Alabama claims were fresh than by quoting the words of a statesman whose authority in the matter would be regarded as paramount on both sides of the house. He alluded to Lord Russell, who, writing to Mr. Adams in December, 1862, said: “Her Majesty’s government cannot, therefore,” (having given his reasons,) “admit that they are under any obligation whatever to make compensation to the United States citizens on account of the proceedings of the Alabama.” Nothing could be more clear and intelligible than that statement; but, in the face of it, what course did the government adopt? Lord Russell distinctly stated and proved that, under existing international law, England was not liable to pay a shilling; whereas in the statement of the matter referred to arbitration, as understood by the government, they set forth new rules of international law, under which such liability might be established. (Hear.) The object of the government seemed to have been to frame rules by which England might become subject to a responsibility which could not be established under the previously existing law. They said: “Her Britannic Majesty has commanded her commissioners to declare that Her Majesty cannot assent to the foregoing rules as a statement of the principles of international law which were in force at the time when the claims mentioned in Article I arose; but that Her Majesty, in order to evince her desire to strengthen the friendly relations between the two countries and to make satisfactory provisions for the future, agrees that, in deciding the question between the two countries arising out of those claims, the arbitrators should assume that Her Majesty’s government had undertaken to act upon the principle set forth in those rules.” Was it possible to conceive a more marvelous course for a great country to adopt? Her Majesty’s government framed an ex post facto law, and stated their willingness to have it assumed that that law existed at the time the claims arose, and their readiness to abide by it. (Hear, hear.) He was much struck by a remark made to him by an honorable and learned friend on this subject, to the effect that if he had done what the government had he should lose every client he had, and be deservedly branded as a fool into the bargain. (“Hear,” and a laugh.) What said one of the arbitrators—the lord chief justice—whose remarkable judgment could not be perused without admiration? “It is,” he said, “to be regretted that the whole subject-matter of this great contest, with respect to law as well as fact, was not left open to us to be decided according to the true principles of international law existing at the time when these alleged causes of complaint are said to have arisen.” (Hear.) The government, in fact, committed a double mistake: they relinquished an impregnable position, and supposed—an inconceivable blunder on their part—that the process of arbitration would lead to a permanent state of good feeling and friendship between the two countries. One result of the course they had taken would be to tempt other nations to insult this country and claim damages against it, seeing how easily we yielded in the case to be tried by laws framed for the purpose. (Hear.) It was better to speak out plainly than to use the wretched subterfuges, the unmeaning expressions of friendship, adopted by governments when hostile feelings really existed; and the remarkable book recently published on the other side of the Atlantic evinced animosity towards this country and exultation at the victory achieved by America. The latter feeling was very natural, for it was a great victory so to have arranged matters that we had been mulcted of £3,000,000 for acts which did not make us indebted to them one shilling, and the excuse for the writer’s tone of undue triumph was that he was unfortunately a native of a country with republican institutions, so that the high and chivalrous feeling prevailing in diplomatic matters in older and monarchical countries could not be looked for. As to his attack on the lord chief justice of England, no man was better able to defend himself, and his high character and position could never be affected by so unworthy a book. With regard to Her Majesty’s government, the secretary of the treasury, (Mr. Glyn,) a man of ability, thoroughly acquainted with their proceedings, and probably speaking under their orders, had told his constituents that the object in paying the money was to avert hostilities with America. Such a statement was degrading to the country, holding out an inducement to the United States to make other demands on us, and as he presumed our temper and forbearance had some limits, we might eventually be forced into a war which would have been avoided had the government possessed the common sense and courage to say, “We owe you nothing, and will pay you nothing.” The chancellor of the exchequer, too, had expressed a hope that we should often be called upon to pay a similar award; in other words, he hoped that England would again be degraded, and a large sum squandered in meeting unjust claims. Whatever the feeling of the people as to the honor of the county, the government appeared indifferent to it. Instead of carrying on long negotiations and almost petitioning America to waive the indirect claims, the government ought, the moment they were preferred, to have broken off negotiations and insisted on starting de novo, and seeing whether one country was indebted to the other or not. What, moreover, had become of the counter claims of English subjects in connection with the Alabama depredations? (Lord Enfield. “They are going on.”) They ought to have formed [Page 370] part of the case before the arbitrators. Why had they not been submitted to arbitration? (Lord Enfield—“They have been.”) Then, why were they not set-off against the £3,200,000? Why pay that sum first, and settle those claims afterwards? Again, the government professed a wish to maintain the connexion with Canada, though they had ingeniously put themselves in a position of inability to protect her. He wanted to know why they had heard nothing on the subject of the Fenian raids into Canada, which, according to the accounts given in the newspapers at the time, were owing to the negligence of the United States Government, at least quite as much as the escape of those vessels from our ports was owing to the negligence of our government. If we still held to the connection between this country and Canada, why was the grievance of Canada entirely lost sight of? Was that also to conciliate the good-will and friendship of the United States? Was there no sense of shame left in this country? Did the Government think the Canadians were blind or indifferent to those facts, and would not conclude either that we had not the courage or had not the power to protect them? On what grounds were the claims against England submitted to arbitration, while those counter claims were still under discussion? Further, he wanted to know what was the state of the negotiations between this country and the United States with respect to the damage inflicted on Canada by the Fenian raids, resulting in a large loss of property and a considerable loss of life. He contended that the honor of a great country ought never to be submitted to arbitration. (Hear, hear.) A country which was not in a position to say what were its own liabilities, and what was due to its own honor, was no longer able to call itself a great power; and the mere fact of our having sanctioned the principle of arbitration was a blow to our national honor. He brought that question forward in no party sprit. He believed Her Majesty’s opposition were as culpable as the government, because it was their duty to have raised a discussion on that subject in the earlier part of those transactions. The right honorable member for North Devon, (Sir S. Northcote,) whose good faith in that matter no one doubted, was there to speak for himself, but Her Majesty’s opposition in a body were absent, and therefore he said they had shown a most lamentable indifference to what was due to the honor and interest of this country. In conclusion, having carefully and to the best of his ability studied that question, he believed there could not be found in the records of any country in the world such a marvelous monument of human folly or such a signal instance of national degradation as was presented in that transaction. (Hear, hear.)
Mr. Gregory thought that, although the payment of that money was a foregone conclusion, it was well that the country should have before it the circumstances under which the liability was incurred. The honorable member then traced the course of the negotiations from the beginning, as given in the official correspondence, and expressed his belief that if Her Majesty’s government had adhered to the line originally adopted by Lord Derby and Lord Clarendon, and insisted on a clear basis being laid down for any treaty which might be concluded, much of the difficulty and the unfriendly discussion which had occurred between the two countries would have been avoided. The eagerness with which the government had entered into the negotiations must have led the Americans to suppose that we were willing to accept terms less favorable than had before been insisted on. He also thought it much to be regretted that the full powers and confidence which, according to the terms of their appointment, were to be given to the commissioners, were not ultimately reposed in them. The government had hurried them off, and when they refused, as was natural and proper, to negotiate except a clear basis were laid down, the government repudiated that sensible decision, and assented to principles upon which all these liabilities had arisen. He thought no man of any legal experience in that house could remember a case in which an ex post facto law had been employed to control an antecedent state of things. He should have been ashamed of himself, and should deserve to lose any professional reputation he might possess, if he had ever consented to such a settlement. It was not only an unprecedented, but a monstrous settlement, and he thought the house should enter its decided protest against the principles on which it was based. (Hear, hear.)
Mr. Anderson asked the right honorable gentleman, (Sir S. Northcote,) to explain what had never yet been explained, why the surrender of General Lee was taken to be the end of the war, after which no claims by British subjects were allowed to be brought forward. That surrender was not the end of the war, for there were three confederate armies in the field for weeks afterwards. Damage was done to British property after the surrender of General Lee; and surely the proper period to fix upon as the end of the war was whatever period was fixed on by the American courts in cases affecting American subjects. (Hear, hear.) In this matter he could not help thinking that the Americans got the better of us. (Hear, hear.) The noble lord had been asked whether British claims arising out of the Alabama depredations were to be considered, and he replied that they were going on. The noble lord, however, was mistaken, for the claims now under consideration at Washington were not British claims arising from Alabama depredations, but counter claims for a totally different [Page 371] thing. But the question at issue was not confined to the destruction of American ships and goods by the Alabama. The Alabama burnt a number of vessels in which British cargoes were stowed. He had heard of an instance in which an American ship loaded with British goods, having been boarded by Captain Semmes, the captain of the ship had informed him that the goods in the vessel were British and not American, and showed him the papers signed by the British consul. Whereupon Captain Semmes said he knew that very well; but nevertheless, he told his lieutenant to take out of the ship what he wanted and then to burn her, which was accordingly done. If we were obliged to pay for damages sustained by the Americans by reason of the conduct of the Alabama, why were we not equally bound to pay for the damages sustained by our own subjects, by reason of the acts of that vessel? The position of the government in this matter appeared to him to be untenable. He was not influenced by the fact that the law-officers of the Crown had advised Her Majesty’s government not to accede to these claims on the part of the British owners who had sustained losses by the Alabama, because he was aware that the opinion of counsel was largely influenced by the manner in which a case was laid before them. The present state of this question was most unsatisfactory, and these claims could not be allowed to remain unsettled. As for the American claims, which had been supported by the Geneva arbitration, we must pay the money, and he would not agree that in so doing we should, as had been suggested by some honorable member, undergo any degradation. (Cheers.)
Mr. F. Powell expressed his approval of the principle of arbitration as a means of settling international disputes, although there were some points in the negotiations that had occurred between ourselves and America which he did not approve. He trusted that the government would pay the whole of the sum awarded to America by the Geneva tribunal out of the revenue of the current year, as it was possible that our finances might not remain in so prosperous a condition as they were at present. He objected to the ex post facto rules that had been agreed to as the foundation of the Geneva award, and regretted that the language of the lord chief justice, when acting as our arbitrator, should have been censured by the chancellor of the exchequer, instead of being supported by Her Majesty’s government. He rejoiced in the fact that the arbitration had been submitted to, as it had produced a very friendly feeling between the two countries, and had put an end to all danger of ruptures between England and America. These dangers were past; he hoped there were no dangers to come.
Sir S. Northcote said that until quite recently he had thought it would be well that this vote should be allowed to pass without comment. (Hear, hear.) But, of course, it was open to any member of the house to take, and, perhaps, not unlikely that some members would take, the opportunity, when this vote came on, of challenging the whole question; and he himself certainly would not be at all disposed to find any fault with his honorable friend, the member for West Norfolk, either for having called attention to the subject, or on account of the general character of the remarks, which, from the point of view he had taken, he had thought fit to make. He himself, however, should not have taken part in this discussion but for the pointed references made to him by one or two speakers, and especially the question which had been put to him by the honorable member for Glasgow. He must really ask the indulgence of the house for anything he might say on this matter. He felt that he was in a position of very great difficulty. (Hear, hear.) He accepted the appointment—the very honorable appointment—of one of the commissioners in 1871, at the request of a government with which he was not connected, for the purpose of carrying through what he believed then, and what he still believed, to be a work of great national importance. (Hear, hear.) He found himself with colleagues officially connected with the government, and who, of course, had much greater authority than himself on matters in which the sentiments of the government were concerned. And the commissioners as a body found themselves in this remarkable position—which, probably, never had been the position of any other negotiators in a matter of similar importance—they were at the end of a telegraph wire, every stage in their proceedings was reported home, and they received from time to time communications from her Majesty’s government, which, although they had plenipotentiary powers, they felt themselves bound to obey. The consequence was that the negotiations were conducted with great difficulty. (Hear.) He had never disguised from himself the fact that parts of the negotiations had not been so thoroughly and satisfactorily settled as he thought they might have been if the negotiations could have been conducted in another manner. With reference to the question which the honorable member for Glasgow had put to him, he was sorry to say he was not able to give him as satisfactory an answer as he ought to give. He violated no confidence in telling him what really did occur. On the original draught of the articles to which the honorable member referred, it was pressed on one side that compensation should be made for claims for loss to British subjects which had occurred during the recent rebellion in the United States. On the other side, the British commissioners did not like the phrase “rebellion;” they preferred the phrase “civil war,” there was a very animated discussion between the two bodies of commission the question whether the word “rebellion” or the words “civil war” ought [Page 372] not to be admitted into the treaty. They were very near the end of their proceedings, and as it was very hard to get over the difficulty, a suggestion was made, he thought, at the last conference, that the difficulty might be got over, neither side being willing to waive a particular expression, by inserting dates which would cover the period that was intended. Dates were marked. For himself he might say that he did not take particular notice, he did not know whether notice was taken by others, whether the last date that was given really did coincide with the termination of the war or not. But it was his full belief that he did, and he believed that it was everybody’s idea that it made no difference at all. He believed there was no intention of making the period less than was originally intended by both parties. However, if the changing a word in the original clause had the effect of excluding parties who otherwise would have been entitled, he for one was very sorry. He did not know whether that was so or not. He doubted whether any claims had been excluded that would have been admitted if a later date had been taken. That was the history of the case. With regard to the matter generally, he would rather leave it to the government to define, if it was necssary to define, the precise terms of the treaty, because the terms were altered from time to time. They assented to the terms which were proposed; and with regard to expressions which had been criticised, they were really more expressions of Her Majesty’s government than of the commissioners. But this he wished to say with reference to the agreement generally. Both now and on other occasions the treaty had been spoken of as something derogatory to the honor of Great Britain. That was a view which, if it was a correct one, would reflect great discredit not only upon the government that negotiated it, but also upon all who in any way took part in it. He thought the way in which the treaty was spoken of in that and in the other house, when it was first laid before Parliament, showed that at all events those who were responsible for the negotiation could not and would not admit that in the very slightest degree they had been parties to any measure of national humiliation. (Cheers.) He hoped he could speak of this matter irrespective of any personal connection with the proceeding. He hoped that he could look upon it as an independent Englishman and a member of the legislature, (hear;) and he would say this, that whether or not the arrangement which was made was altogether the best that could have been made—which question he left aside—the arrangement was made with a strict regard to what was believed to be by those who negotiated the treaty, the honor and the real interests of England. (Hear.) With regard to the particular point brought forward by his honorable friend, the honorable member for West Norfolk, he must say distinctly that it would have been quite impossible for the English commissioners to have accepted the rules originally suggested by the American commissioners, but that the rules which were ultimately adopted went very little beyond what he believed was acknowledged to have been international law at the time when the act of 1870 was under discussion, and, moreover, that the rules embodied principles coinciding very closely with principles on which Lord Russell and the government of the day professed themselves willing to act, and therefore he (Sir S. Northcote) could not admit that the commissioners took an ex post facto view of the case. If anybody would read the decision of the arbitrators he would find that, with the exception of the lord chief justice, they held that the rules, as they stood, added nothing to international law, and upon the merits of the general question, even if these rules had not been laid down, the decision of the majority would have been precisely the same as it was. The lord chief justice, on the other hand, would have decided that we had not committed any violation of international law as it was understood before the rules were laid down; but then the judgment of the lord chief justice upon the facts of the case would have been that we had not exercised that vigilance which we ought to have exercised, and which Lord Russell, in his dispatches at the time, always expressed himself desirous of exercising. It was far better, then, that we should have endeavored, before going to arbitration, to come to an understanding with the United States as to what we really wished, for the sake of this country and of civilized countries generally, should be held to be international law for the future. Well, then, what was the substance of those three rules? The substance of the three rules, their intent and animus, was to prevent, for the future, that which we endeavored to prevent, but entirely failed in preventing, when the Alabama escaped. There was no country more interested than our own in preventing the sending out of privateers, or vessels of that character, from neutral ports. We believed that the great object to be gained by means of this settlement was not so much to obviate a quarrel with America as to get a good rule for the future which should free Commerce from the dangers to which it had been exposed. But I wish it to be understood that it was, on every account, most desirable that that sort of ill-feeling which had been engendered between the two countries should be set at rest; not that there was any idea whatever of this matter leading to war between the two countries, but what it would lead to was obvious enough in the negotiations about a wholly different matter. In the case of the Canadian fisheries, upon which it was most important that there should be a good understanding between the two countries, we found that a sort of soreness which was felt by the Americans [Page 373] really prevented practical and good arrangements being made. (Hear, hear.) Therefore it was most important that good relations should be restored between the two countries, and the whole scope, spirit, and tendency of the treaty of Washington was to establish such relations and lay down satisfactory rules with respect to commerce for the future. He did not deny that what had happened since had been in many respects unsatisfactory. Reference had been made to discussions of last year, which we all viewed with great pain, and which we would be happy, so far as possible, to forget. He was not at all anxious that we should huddle up and put certain misunderstandings out of sight. It was much better, if we thought there was anything wrong in the language used by the Americans—as, for instance, last year, with respect to the indirect claims, or recently with regard to any indications that might have been given as to the result of the arbitration—that these matters should be temperately and fairly discussed. (Hear, hear.) Having gone so far, it would be a great pity if we allowed ourselves to stop short of a clear and satisfactory arrangement of this question of international law. And though some few persons in America in a prominent position had uttered expressions which he thought deserved the reprobation they had received in this country, he believed the great mass of the Americans themselves felt quite as much annoyance and sorrow that such pretensions should have been put forward. The house was now about to pass this vote, and it was really no matter of regret that some discussion should have occurred upon it, but he hoped that the house and country would feel that we ought not to allow any sense of having been losers by the arbitration, or in some respects not having been met in the way we hoped, to interfere with our passing it in a cordial manner. We ought to maintain the most friendly relations with the United States, but in order to do so two things were necessary—first, to be uniformly courteous in our dealings with them; and, secondly, to speak openly whenever we thought they were unreasonable. (Hear, hear.)
Mr. D. Dalrymple did not grudge any money we had to pay on account of the Alabama, because he believed our government made a great mistake in not taking more effectual measures to prevent the escape of that vessel. He was very much afraid, however, that other countries were sufferers by the depredations which had been committed, and he was informed that France had claims for losses which would come under the same category as those of the United States. Certain of our own countrymen had suffered losses, and although the law-officers of the Crown had pronounced the government not legally liable in this respect, he doubted the justice of the decision. If compensation were paid to the foreigner for his ship, surely the subject should be compensated for the cargo carried in that ship. Unless this were so, no great power would in future resort to arbitration. (Hear, hear.)
Mr. Gladstone. It would have been advantageous if this vote had been agreed to without discussion, but I must express my obligation to the honorable member for having postponed the discussion until this stage. I desire, in the first place, to disclaim, on the part of the government, all responsibility for the expressions which have been ascribed to the honorable member for Shaftesbury, (Mr. Glyn,) and I must also take exception to the honorable gentleman’s view of the chancellor of the exchequer’s feeling on this subject. The honorable gentleman seemed to think the chancellor of the exchequer exults in opportunities for throwing away three or four millions of surplus, and feels it to be in the nature of absolute relief. Liberal and open-handed as my right honorable friend is, (laughter,) I do not think he would carry his generosity to such a degree of extravagance; and as regards the honorable member for Shaftesbury, I do not think, he made use of the expressions that are put into his mouth by the honorable gentleman. But, perhaps, it is not necessary to enter into these matters, which are really by-gones. The objections to the treaty have been made with great breadth and precision, and the honorable gentleman says that it was a great and capital blot on the government of this country that the Washington treaty was not set aside when the indirect claims were preferred. That is not an extravagant proposition, but it is unsound. The question, in a great measure, depended upon the presumption of good faith. It was impossible, in our view, to conceive of a more gigantic error than was made by the American Government in importing the indirect claims. As was shown by the documents of the British government, they were so enormous that it was incredible anybody could seriously advance them. It was difficult to limit the number of millions to which these claims extended, but the question is, were they advanced in good faith? If we could have shown that they were advanced in bad faith, then we should have been justified in withdrawing from the treaty altogether. We have been blamed for not having used forensic statements and arguments, but such weapons have their dangers as well as their advantages. We were bound to give credit to the American Government for the same good faith as we ourselves were actuated by. If we had done what the honorable gentleman complains was not done, we should have exposed ourselves to the most serious charges of having tampered with those principles of honor and truth which I am sure he would be the first to deplore. The honorable gentleman went on to say that the honor of this country should never be submitted to arbitration. That is a sound doctrine, but the honor of the country had not been challenged. If [Page 374] the question had been the truth of a charge of willful departure from national obligation, we should never have thought of going to arbitration. There are some on the other side of the Atlantic who believe the neutrality of the British government was insincere, and that it was challenged on that account, but we did not go to arbitration on that ground. The question whether a government’s subordinates had exercised all the care and diligence the case required was a question quite apart from the honor and intentions of the government, and that was the question submitted. Then the honorable gentleman asks why the arbitrators decided upon the claims of the United States before they considered the British claims against the United States. The honorable gentleman is in error in supposing it was intended to give such precedence, or that precedence was actually given to the Alabama claims over private claims. The Alabama claim was a public claim arising between the two governments; the other claims were made by citizens of the United States against the British government. The arbitration upon these private claims undoubtedly lasted much longer than the arbitration at Geneva; and no wonder, because whereas at Geneva there were only a small number of questions for decision, the cases for decision at Washington are exceedingly numerous, and may be counted by hundreds, if not even by a larger figure. So far from there having been delay in carrying these cases to arbitration, as compared with the Alabama claims, the arbitration upon the private claims at Washington began long before the proceedings at Geneva. They began, I think, in October, 1871, and have since been conducted with as much expedition as it was in the power of the commissioners to use. (Hear.) Then the honorable gentleman refers to the Fenian raids, and complains that they were not included in the treaty of Washington, founding upon this complaint the further observation that a great wrong was thereby done to Canada, and must be felt by our fellow-subjects in the Dominion. Now, the conclusion at which the government arrived was that it was not part of their duty to insist that the Fenian raids should be made subjects of discussion and settlement along with the other matters included in the treaty. It would, however, be a mistake to suppose that the government on that account forfeited their title to bring forward claims arising out of the Fenian raids. Nothing has at any time been said or done by the government to weaken their title to claim compensation from the United States on account of the Fenian raids. The only question we decided was as to the propriety, or at any rate the necessity, of mixing up the consideration of this subject with the other questions included in the treaty. It is quite true that the government have made a separate claim upon the United States in the matter of the Fenian raids. (Hear, hear.) But that fact does not bear upon the credit or the discredit of the treaty. The treaty of Washington did not surrender and did not include these claims. (Mr. Bentinck. Why did it not include them?) I need not now go back to the considerations which influenced the decision of the government, because Parliament knew well what our decision was, and did not press us to include in the treaty the question of the Fenian raids. And I say that that claim, whatever it may be, suffered no prejudice whatever from the proceedings in connection with the treaty, but stood upon its own merits after, as it did before, the conclusion of the treaty. (Hear, hear.) Then, sir, I wish to remove an entire misapprehension, that the non-inclusion of this claim in the treaty was a wrong done to Canada. The question as regards Canada was a question of money. Canada was informed by the British government that we were perfectly ready to recognize her claim for the damage done by the Fenian raids; and the Canadians, so far from being discontented, appeared by no means disinclined to entertain that view of the matter. The losses they suffered were fully discussed between the government of the Dominion and this country, and the question of a money payment was considered, but the views of the Canadians rather inclined to a different form of compensation. It finally resolved itself into an imperial guarantee for the purpose of a great work in the Dominion; and the Canadian government recognized this guarantee as in full satisfaction of any losses sustained through the Fenian raids. (Hear, hear.) The honorable member, then, should bear in mind that the Canadian government had nothing to complain of in the shape of pecuniary losses from Fenian raids, for which they had received ample compensation, and I apprehend that they think so, too. Further, Canada herself had a far greater interest than any other part of the empire in the conclusion of the treaty of Washington. The fishery question alone continually menaced the peace of Canada. No doubt it also menaced the relations of this country and the United States, but Canada had the most direct and vital interest in the speedy and complete settlement of all these questions. So far, then, from admitting that the treaty of Washington ought to be a subject of dissatisfaction in Canada, or that it is a subject of dissatisfaction there, I believe that the Canadian people do not view the treaty at all in the same light as the honorable member, and that great satisfaction prevailed throughout the Dominion at the settlement of these alarming and menacing differences. Let me remind the honorable member that Canada possesses a free and effective parliamentary government, and that government had had its conduct tested since the treaty was concluded. The honorable gentleman (Mr. F. S. Powell) has paid a just [Page 375] tribute to a distinguished member of the Canadian ministry whose recent loss we all deplore; and the test applied at the elections to the conduct of the government had been to give it the approval, and not the disapproval, of the people of the Dominion. (Hear.) The honorable gentleman (Mr. Gregory) has stated that Her Majesty’s government repudiated the acts of their commissioners. He had nothing upon which to found this extraordinary statement, except a passage in the published correspondence in which the commissioners stated that they were limited by their instructions in a certain matter, and that with regard to a demand made by the American commissioners, they would refer it home for the instructions of their government. The question was referred home, and the effect of the reference home was a modification of the ground previously taken by the British commissioners, under their instructions, but this does not give the smallest color to the assertion of the honorable gentleman that the British government repudiated the act of their own commissioners. A point of greater importance was his statement that the fatal error of the negotiations was that we allowed our conduct to be judged by an ex post facto law, and that, in consequence of such assent on our part, the country has been not only condemned to pay a very large sum of money, but likewise stands discredited and dishonored by the condemnation. Now, I agree with the honorable gentleman—if our liability for this payment accrues in consequence of any gross error of that kind, the payment does in itself imply a great deal of discredit, as well as mere pecuniary loss. But we do not admit the main proposition of the honorable gentleman. We deny that we consented to be judged by an ex post facto law. There are various points to be considered in this connection. First, Was the award made at Geneva either in whole or in part due to the operation of the three rules? (“Hear” from Mr. Gregory.) The honorable member evidently thinks it was. I do not presume to say that the declarations made at Geneva gave us the means of saying with absolute certainty that it was not, but the opinion of many of those who are most competent to judge, and who have most carefully and completely mastered the effect of the whole proceedings at Geneva, is that the three rules did not either in whole or in part bring about the award; that if the three rules had not been included in the treaty, the award would have been the same; and that the award depended upon the arbitrators’ view of the obligations of international law, not upon the principles embodied in the three rules. (Hear, hear.)
Mr. Gregory. The right honorable gentleman will remember that the words “due diligence” run through the decision of the arbitrators.
Mr. Gladstone. That is perfectly true, but it is also perfectly immaterial. What can be more trivial than the stress laid here upon the words “due diligence?” They are quoted as if they involved some new and unheard-of principle. But surely it is mere matter of course, the mere A B C of international duty, that whenever obligations are cast upon a state, due diligence must be shown in the discharge of those obligations. (Hear, hear.) But suppose that the three rules were responsible, as I do not admit they were, for the award, did we on that account suffer any injustice? Were they, as regards us, an ex post facto law? I say they were not. We deemed that they formed part of the international law at the time the claims arose, but we never deemed that they constituted part of our own obligation. We had a municipal law, the execution of which we ourselves recognized as part of our duty to America, and the true construction of which was in strict accordance with the terms of the three rules. It was the standard of duty we ourselves set up for ourselves, although we had not taken it as part of the international law. It was not, therefore, an ex post facto law, so far as regards us, but a new form of expression given to that which we had recognized as part of our own duty. Why was that form of expression used? Because the great advantage of this proceeding was to make some approximation to the international law of the future, and we knew that the concurrence of those two great countries would be a great step achieved toward the incorporation of those rules in the general code which binds nations together. (Hear, hear.) Therefore I hope the honorable gentleman will at least understand that to be our view. We in no degree admitted them to be an ex post facto law. We look upon that as a vulgar error, which widely prevails in the popular mind, (hear hear,) prevails at least to some extent, and no wonder it should, when supported by authority so respectable as that of the honorable gentleman, but it is one which for the sake of the common sense and intelligence of the country ought to be dispelled. Sir, the honorable member for Norfolk summed up all his difficulties and objections by stating that we did not owe a shilling, and consequently had undergone humiliation and degradation without precedent by being placed in a position in which we have to pay a great deal. Probably we may all think that a severe view was taken of our case at Geneva. (Hear, hear.) That is a sentiment which it is most natural that we should entertain. But let us remember that we are not the most impartial judges in our own case, and that the arbitrators have at least the presumption of impartiality. We must also bar in mind that high authorities here before arbitration declared publicly that if arbitration resulted, we should have to pay a considerable sum. It is but fair to remember these things on behalf of arbitrators to whom our obligations are admitted for having undertaken a case of such interest to us both. But [Page 376] suppose it is true that we have to pay more than a temperate, or perhaps I should rather say, exact view of our conduct would have awarded. At any rate, that excess is one which, although it tells against us for the moment, will tell in our favor in the long run. The interest of this country is in the strictness of the code, not in its relaxation. It is highly for our interest that the obligations of neutrals should be highly estimated, strictly defined, and rigidly enforced. (Hear, hear.) We should therefore remember that whatever may be considered the undue strictness of this judgment, if there be undue strictness, it is certainly a fault not likely to be injurious to us, but the contrary, in the long run. But we must look a little higher than the precise question whether the arbitrators exactly hit the mark. They accompanied their judgment with a multitude of propositions which have become the subject of debate, but these are in our view the preamble of the sentence and have no relation to the general law on the subject. The honorable gentleman will not, I am sure, forget, that if we look beyond the mere question of success and failure, there are important deductions to be borne in mind. Suppose the position of the two countries with respect to the indirect claims were reversed, and that the honorable gentleman, instead of being, as he is, a patriotic member of the House of Commons, was a patriotic member of the American Congress, (a laugh,) what would he have thought of the position of his own government with respect to those indirect claims? Because he will bear in mind that the indirect claims were not waived. They were excluded, and therefore repelled not on the merits, but on principle, by the arbitrators. (Hear, hear.) I am endeavoring to find some soothing consideration for the honorable gentleman. (A laugh.) He will have the satisfaction of bearing in mind, also, that although we are going to pay a large sum, it is not the sum asked for by the Government of America at Geneva. Well, that is some consolation. The damages claimed were between £8,000,000 and £9,000,000; the damages given were between £3,000,000 and £4,000,000—a large sum, certainly; but instead of voting $40,000,000 the honorable member will have to vote only $15,000,000. In our view, whether in that respect the judgment is a right or accurate judgment, or whether some considerations may not have been pressed against us beyond what exactitude would warrant, that, in our view, is a very small matter. (Hear, hear.) It is a small matter compared with the cost of war; it is a small matter compared with the value of the good-will and the improved and peaceful relations subsisting, and happily likely to subsist, between this country and America. (Hear, hear.) I have heard the criticism of my honorable friend behind me upon the Government of America, and we are told that that Government is not in the right hands. Well, there are a great number of people who think that the government of England is not in right hands. (Laughter and “Hear, hear.”) We ought not to rest the case too much upon criticisms of that sort. It is not easy to understand the entire spirit of the institutions of a country, and unless we do, criticisms upon particular features of them are apt to mislead. If it be true that there are many of the most illustrious citizens of America who do not hold public offices of responsibility, on the other hand it is admittedly true, as we have seen in the case of the Trent and in other cases, that the Executive Government in America does enjoy a very considerable independence; and it is, again, a purely vulgar error which prevails on this side of the water to suppose that the pressure of the mob, on the afflation of the moment, governs as a matter of course the proceedings of the authorities in America. I believe that to be entirely wrong; I believe in the genial, cordial good-feeling of the bulk of the American people toward this nation, from which it springs. (Hear, hear.) I believe, also, that whatever be the defects of the American institutions, (and of course they are defective, like our own and all others,) they will suffice to give such expression to the good feeling of the American people as will powerfully tend to maintain good and cordial relations between the two countries. (Hear, hear.) Sir, it is a great happiness to see this serious and menacing cause of alienation and estrangement, if not of war, removed by a great international arrangement. (Hear, hear.) Naturally we wished, as Englishmen, to win at Geneva. I did, for one; probably all of us did; but any amount of disappointment we may feel at the result is but an inconsiderable deduction for the satisfaction attendant upon an arrangement which removes such causes of difference between two great countries like England and America, and does so much, as I contend, for mankind at large by the example it sets of a peaceful settlement of disputes as a substitute for the bloody arbitrament of war. (Cheers.)
Mr. Cavendish Bentinck said the statement of the first minister was bewildering and unsatisfactory, and it was still necessary to ask, and to press for an answer to the question, what was to be the policy of the government in regard to the communication of the three rules to foreign powers. The intentions of the government on that point were of importance to the maritime constituencies. He was afraid that in this respect, as in all others, the treaty would be a failure, as it was admitted to be by all except the occupants of the treasury bench. The sole cause was the unconstitutional course pursued by the government, in not submitting the treaty for the consideration of Parliament, as some honorable members on the ministerial side of the house contended that all treaties ought to be. This treaty was essentially one that ought to have been [Page 377] subject to the control of Parliament, because the Crown could not bind itself to pay money without the assistance of the house. When he urged this point last year the reply made was that the government had a right to pursue this negotiation, because they had reason to believe that both Parliament and the country, by reason of previous negotiations, were in favor of a reference of this question to an impartial arbitration, so that a reference to Parliament might be dispensed with. But this was an unconstitutional and an unhappy and unfortunate course, and there was no precedent for it. In 1815, the Russo-Dutch loan was negotiated in pursuance of the treaty of Vienna, and an article in the treaty provided expressly that His Majesty negotiated to pay subject to the approval of his Parliament. In 1857, when the sound-dues were altered, there was an article in the treaty expressly providing that Her Majesty agreed to pay the money subject to the approbation of Parliament, and a resolution was submitted to this house, and carried after opposition from gentlemen below the gangway. If, in like manner, the Washington treaty had been submitted to the house the island of San Juan might have been saved, and we might have had impartial and competent arbitrators and umpire. But that we had neither the one nor the other was admitted by the first minister. It was not necessary to impugn their honesty, but they were unacquainted with the English law, which they had to interpret, and some of them were even unacquainted with the English language. The right honorable gentleman said the judgment of the majority was formed in independence of the three rules; but the lord chief justice arrived at a conclusion adverse to us on one point simply by reason of the effect the three rules had upon it. And still the right honorable gentleman said the three rules did not matter a straw, and whether they had been passed or not, we should have had to pay this money. If the question had been brought before the house in all its bearings, the house would have taken good care that efficient men were nominated as arbitrators. The real secret was that the right honorable gentleman and his colleagues were overpowered by the exploded doctrines of Mr. Cobden and the right honorable member for Birmingham. They imagined that peace at any price was the only policy to be pursued, and the substance of the telegrams sent to the right honorable member for Devonshire was, “Sign the treaty at any price.” He was quite satisfied that the opinion of the country was against the policy which had been pursued; but, although they had been degraded by the government, he believed a good day was coming when Old England would again assert her power in spite of the enmity and envy of other nations, and the incapacity of her government.
The resolution was then agreed to.
british captures by the alabama.
Sir J. Elphinstone asked the first lord of the treasury whether it was the intention of Her Majesty’s government to submit the claims of Her Majesty’s subjects for losses sustained by the capture of vessels containing British property by the Alabama to arbitration.
Mr. Gladstone. Her Majesty’s government have no such intention. I think the question, judging from its form, has been put under an entire misapprehension. It appears to be implied that the government submitted the claims of certain persons, not subjects of Her Majesty, to arbitration. That is altogether a mistake. No claims of individuals have been submitted to arbitration in relation to the Alabama. What was submitted to arbitration was entirely a question between the two governments.
Mr. Anderson asked the under-secretary of state for foreign affairs whether he had any objection to lay upon the table the case as submitted to the law-officers of the Crown, on which they gave the opinion that, notwithstanding the British government having been found liable for the damage done by the Alabama to the subjects of other countries, she was not liable to her own subjects for similar damage similarly inflicted.
Lord Enfield. It is not usual to present to Parliament the communications which pass between the foreign office and the law-officers of the Crown, on cases submitted to them, such communications being considered to be of a confidential character, and I could not undertake to make an exception to the custom in the instance just alluded to by the honorable member.