No. 67.
Mr. Fish to General Schenck..
Washington, May 28, 1872.
Sir: Late last evening Sir Edward Thornton called at my house, having, as he stated, a telegram from Lord Granville, the general purport of which he mentioned, to the effect that the British Government having received the amendment proposed by this Government to their proposed supplemental Article, would prefer their own draught, but that they would accept the proposed alteration, substituting, however, for the words “for remote or indirect losses,” the words “of a like nature,” and for the words “failure to observe neutral obligations,” the words “such want of due diligence on the part of a neutral.”
I told him frankly, and earnestly, that no change or alteration of any kind is admissible or can be entertained. I added that the United States now have a case against Great Britain, he interrupting me by saying, “the United States think they now have a case.” I proceeded, saying; that it made no difference, that having now a case, they desire to press it for a decision, or to have the principle of exemption of national liability for indirect losses established for the future; that that principle is the equivalent or consideration of abstaining from a demand before the Tribunal for damages on account of the indirect losses; that as now altered, the Article prevents the presentation of indirect claims against the United States, on account of the Fenian raids, while the British draught would exclude only claims arising from the acts of vessels, &c, and under circumstances which may possibly never again occur. * *
He then asked me about the preamble and the proposed note to the Arbitrators. In reply, I told him that it was useless to discuss either while his Government is contemplating any change in the Article.
He said it might be well to have an understanding, in order to save time in case his Government accept the alterations made to the Article.
In this view, I showed him a draught of a preamble which had been prepared in the Department, reciting, simply, that the two Governments, deeming it advisable that “there should be an additional Article to the Treaty signed at Washington on the 8th day of May, 1871, have for that purpose named as their Plenipotentiaries,” &c., and saying that I see no occasion for any other recital; and that as to the proposed note we will not sign it. He ask if there was any objection to their signing such note, to which I replied that we could not control them in that respect; they had the power to make such representations to the Tribunal as they thought proper; that there might be no objection on our part to the former part of the proposed note, but that the latter clause was not necessary, as the effect of the Article accomplished what was then stated as a request; that we would lay the Treaty, if agreed to, before the Tribunal, and our counsel would be guided by it, and would abstain from making any claim on account of the indirect lossess; but I desired not to be committed in advance of the agreement to the Article.
I then referred to the question raised by your telegram, received yesterday, as to the effect of the Article upon the claim for expense of pursuit of the cruisers, and added that I did not think there could be any doubt, as both Governments had, through the whole correspondence, treated this as a direct claim. With some reserve and caution, and disclaiming [Page 531] any authority to speak, he remarked that he believed that claim had been created as a direct claim; one on which the Tribunal was to pass, and decide whether or not it be one for which compensation is to be made.
I am this morning in the receipt of your telegram communicating the proposed changes to the Article which Sir Edward Thornton had communicated to me, as above mentioned.
Lord Granville’s evasion of a reply to your question respecting the pursuit, &c, of the cruisers, is significant and suggestive of caution.
It is very possible that the whole thing will fail; if so, this country will stand before the world having done all that it could to maintain the Treaty, and the civilizing principle which it established. The responsibility of failure must rest with Great Britain, who evidently will have shown a reserved intent, and an object of future advantage not avowed. * * * Much as this Government will regret the failure, it can stand it as well as can Great Britain.
There are some things in the telegram received this morning which may require comment; but I incline to hope that what may seem arrogant in Lord Granville’s remark, that he will not insist on certain language in the proposed preamble, arises from the constraint of the telegraphic form of communication; and so, too, the suggestion of a condition that assurance be given, in writing, of certain things.
As presented in your telegram, these observations appear such as I am confident you would not have listened to, without repelling them. I confidently hope that their unpleasant appearance is to be attributed to the style of telegraphic correspondence.
Sir Edward Thornton was told by me, some days since, what I understood would probably be the expected change recommended by the Senate committee. He has made some mistakes in transmitting it. I gave him no copy; he must have reported it from memory. But whatever it was, it was a thing under consideration, and the committee’s report was changed by the Senate. I see, therefore, no importance to be attached to a variance in the final action of the Senate from what was at one time expected $ although what was expected is different from what Lord Granville has understood to have been expected.
I am, sir, your obedient servant,