No. 31.
Earl Granville to Sir E.
Thornton.
[From British Blue Book “North America,” No. 9, p. 6.]
With reference to my dispatch of the 2d instant, I have to state to yon that General Schenck informed me last night of the instructions he had received from Mr. Fish.
In the first place, he mentioned an objection which had occurred to himself. He thought that the sentence “without prejudice to the argument heretofore advanced by Her Majesty’s Government,” ought to be “without prejudice to the arguments heretofore advanced by either party.”
It did not appear from what he said that Mr. Fish objected to the preface—at least, has not criticised it.
I observed that the preface was ours, and did not commit the United States Government.
General Schenck then proceeded to say that Mr. Fish objected to embodying in the proposal the declaration that “Her Majesty’s Government adhere to their view that it is not within the province of the Arbitrators to consider or to decide upon the claims for indirect losses, viz, the transfer of the American shipping, &c.”
Mr. Fish considers that it is not necessary to insert in a statement, of what is to be agreed upon, an insertion as to the principle on which the two parties differ. The United States Government could not, in his opinion, enter upon a basis of an agreement recognizing a principle of conduct and action which they do not admit.
Mr. Fish also objected to the phrases “in similar cases and similar circumstances.” No two cases are similar, and circumstances similar to those arising during the rebellion in America cannot occur in Great Britain. Consequently, the terms of the proposed agreement guarantee nothing to the United States. He prefers the language which he used, “that Her Majesty’s Government stipulates for the future, that should Great Britain be a belligerent, and the United States a neutral, and should there be any failure on the part of the United States to observe their neutral obligations, Great Britain will make or advance no complaints or claims against the United States by reason or on account of any indirect, remote, or consequential damages, the result of such failure.”
General Schenck said he preferred that language. I replied that I could not agree with him in this respect, but I thought the words which I had given to him before he dictated to me his scheme of a draught note would meet this objection.
Mr. Fish adheres to having some expression of opinion from the Arbitrators as to the admissibility of indirect claims, insisting that it is within the jurisdiction of the Tribunal to consider that question.
He insists also that there shall be nothing from which it is to be implied that any part of the United States Case is withdrawn. General Schenck then said that he wished to make a suggestion, although without instructions. I observed that there must be a limit to these suggestions stated to be without instructions.
He believes that the whole thing may be simplified by stripping the proposal of all that is unnecessary, and preserving that which is agreed [Page 489] between the parties, without a statement of the views of either or the claims of either. He could understand why Mr. Fish objects to having it declared that there is any withdrawal of any part of the Case; but if the thing be virtually done, why, General Schenck observed, give it a name?
But he also understood why Great Britain, making an agreement which amounts to a settlement on this point, should not want—or consent to ask—the opinion of the Arbitrators on that agreement. He had draughted a brief statement of the mutual proposal which he submitted to me, and would also ask Mr. Fish if it were possible for the President to assent to it, if presented by Her Majesty’s Government in this form, as a substitute for that already communicated to him.
He did this without obtaining for it Mr. Fish’s instructions, and for the present therefore entirely confidentially. General Schenck proceeded to read the following statement:
Her Majesty’s Government are now ready to state that if the United States will and do agree not to press for a pecuniary award before the Tribunal of Arbitration at Geneva, on account of claims for indirect losses or damages, viz, for the increased premiums of insurance, the transfer of American shipping, and the prolongation of the war, then Her Majesty’s Government will and do engage, on their part, and stipulate that should Great Britain at any time in the future be a belligerent while the United States is a neutral, and should there be any failure on the part of the United States to observe their neutral obligations, Great Britain will make or advance no complaints or claims against the United States by reason or on account of any indirect, remote, or consesequential results of such failure. This rule or principle not to advance or press complaints or claims for indirect, remote, or consequential damages, to be mutually and reciprocally observed by both parties in the future.
The notes which are exchanged on this subject to be presented to the Tribunal of Arbitration, and entered on its record.
I told General Schenck that 1 could not give him any formal answer without consulting my colleagues; but I desired to impress upon him that, individually, I was perfectly convinced such a draught would not further in any degree the negotiation. He observed that it had no official character; that it was only a suggestion of his own, and that it would only have validity if agreed to by Her Majesty’s Government and by Mr. Fish. He continued to say, that the only chance of an agreement was for each party to consider what modifications each should make with a view to an approximation; and that this would be more easily arrived at by leaving out all unnecessary matter. I told him that, generally speaking, I was sure my colleagues did not desire to introduce any unnecessary words. They only desired that the meaning of what was agreed upon should be perfectly clear; that no possible misunderstanding should arise. For instance, the words which he preferred as to not pressing for a pecuniary award, instead of those proposed by us, “not to have regard . . . to,” &c.; if there was no arrière pensée, what could be the objection to the latter?
General Schenck repudiated the idea that there could be an arrière pensée, and he himself thought the two phrases came substantially to the same thing, but that his instructions adhered to the first. He did not understand how his words, if communicated to and recorded by the Arbitrators, would admit of a doubt.
He hoped we should take his draught, modifying it as little as was possible for us to do. He had telegraphed to Mr. Fish everything that I had communicated to him. He had asked Mr. Fish to tell him whether he on his part would agree to the note of which he had just given me a copy; and he had begged him to send him back our draught altered as he wished it to be, and the form of assent which Mr. Fish was ready to give.