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. 74.
General Schenck to Mr. Fish.
London, May 30, 1872. (Received June 11.)
Sir: Inclosed with this I send copies of all written correspondence which has passed between Lord Granville and me since my No. 239. These notes taken in connection with the several telegrams which have passed between you and me, of which copies are also forwarded to you with another dispatch to-day, will bring up the history of what has taken place here for the last five days in relation to the proposal for a supplementary Treaty. Your telegram of the 28th, declining, on the part the United States, to agree to the proposed altering of the supplementary Treaty, was received in the night and communicated to Lord Granville very early yesterday morning. I would give you, with these documents, some narrative and comments, and it was my intention to [Page 536] do so, but your long telegram in answer to the observations of Lord Granville, contained in his note which I telegraphed to you in full at midnight of the 28th, has this moment arrived and requires to be deciphered and to have my immediate attention, so that it will not be possible to give any other communication by the mail which is made up for Queenstown to-day.
I have the honor to be, sir, your obedient servant,
Earl Granville to General Schenck.
Sir: I instructed Sir E. Thornton to communicate to Mr. Fish the accompanying form of preamble to which Her Majesty’s Government were prepared to agree in case a convention should be concluded embodying the draught Article. I have learned from Sir E. Thornton that Mr. Fish would prefer the omission of the words “in order that the same may be communicated to the Tribunal of Arbitration, appointed under the first article of the Treaty signed at Washington on the 8th of May, 1871, for the guidance of the proceedings of that Tribunal,” and I have this day informed Sir E. Thornton that he may tell Mr. Fish that Her Majesty’s Government will not insist on the words which he desires to omit in the preamble, if he will give Sir E. Thornton an assurance in writing that the Government of the United States will agree to the form of note which I proposed, and of which I sent you a copy on the 20th instant, communicating the Convention on the part of the two Governments to the Tribunal of Arbitration at Geneva. I have to add that Sir E. Thornton has a general full power enabling him to sign a Convention, and instructions to do so if the proposals contained in this, and in my other letters of this day’s date, are agreed to.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
Proposed preamble to supplemental Treaty.
Her Majesty the Queeen of the United Kingdom of Great Britain and Ireland, and the United States of America, having resolved to conclude a Convention in the terms of the Articles hereinafter set forth, in order that the same may be communicated to the Tribunal of Arbitration appointed under the first Article of the Treaty signed at Washington, on the 8th of May, 1871, for the guidance of the proceedings of that Tribunal, have named as their Plenipotentiaries, that is to say______
Earl Granville to General Schenck.
Sir: I have lost no time in laying before the Cabinet the telegraphic dispatch from Mr. Fish, which you communicated to me this afternoon, informing you of the result of the deliberations of the Senate on the draught Article submitted for their advice by the President of the United States. It appeared from this dispatch that the Senate had agreed to advise and consent to the adoption of the proposed article, with the substitution for the third and fourth paragraphs, of two paragraphs, as follows:
“And whereas the Government of the United States has contended that the said claims were included in the Treaty; and whereas both Governments adopt for the future the principle that claims for remote or indirect losses should not be admitted as [Page 537] the result of the failure to observe neutral obligations, so far as to declare that it will hereafter guide the conduct of both Governments in their relations with each other, now, therefore,” &c.
In communicating this dispatch to me, you inquired whether any possible interpretation could be given to the proposed Article in the form in which the Senate have modified it, taking all its parts together, which would prevent taking before the Arbitrators, to be considered by them in making their award, that part of the claim called “direct claims” in the Case, which relates to the cost of pursuit and capture of cruisers.
I have now the honor to state that I must, on behalf of Her Majesty’s Government, decline to answer the question which you have put to me as to the effect of the article as altered by the Senate, or to state what possible construction it may bear.
Her Majesty’s Government are of opinion that the definition as therein expressed, of the principle which both Governments are prepared to adopt for the future, is so vague that it is impossible to state to what it is or is not applicable, and they believe that it would only lead to future misunderstandings. That Her Majesty’s Government prefer the Article as they had draughted it, but have no objection to accept the Article in the form proposed by the Senate, with the substitution of the words “of a like nature “for the words “for remote and indirect losses,” and the substitution of the words “such want of due diligence on the part of a neutral for the words “the failure to observe neutral obligations.” The article would then run thus: “And whereas both Governments adopt for the future the principle that claims of a like nature should not be admitted as the result of such a want of due diligence on the part of a neutral, so far as to declare that it will hereafter guide the conduct of both Governments in their relations with each other.”
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
General Schenck to Earl Granville.
London, May 28, 1872.
My Lord: I received late last evening your note of yesterday’s date, informing me, in relation to the form of preamble which you had instructed Sir Edward Thornton to communicate to Mr. Fish, as that to which Her Majesty’s Government were prepared to agree in case a convention should be concluded embodying the draught Article, that you had since learned from Sir Edward that Mr. Fish would prefer the omission of the words “in order that the same may be communicated to the Tribunal of Arbitration appointed under the first Article of the Treaty signed at Washington, on the 8th of May, 1871, for the guidance of the proceedings of that Tribunal,” and that you had informed Sir Edward Thornton that he might tell Mr. Fish that Her Majesty’s Government will not insist on the words which lie desires to omit in the preamble, if he will give Sir Edward Thornton assurance, in writing, that the Government of the United States will agree to the form of note which you proposed, and of which you sent me a copy on the 20th instant, communicating the Convention on the part of the two Governments to the Tribunal of Arbitration at Geneva.
In the same note you add that Sir Edward Thornton has a general full power, enabling him to sign a convention, and instructions to do so if the proposals contained in that note and in your other letter of the same date are agreed to.
Immediately after the receipt of your note last night I communicated to Mr. Fish,, by telegraph, information of that instruction you had given to Sir Edward Thornton in regard to omitting the words in question from the preamble. I had previously, and early in the day yesterday, telegraphed to Mr. Fish the information you had already given me verbally, that Sir Edward Thornton had a full power to sign a convention.
But I remark now, that the instructions to Her Majesty’s Minister at Washington appear by your note to have been given to be exercised on a condition. I beg to know from your Lordship if I am to understand that Sir Edward Thornton’s authority to sign is limited by his instructions, and only to be used in the case that the proposals contained in your notes addressed to me yesterday are agreed to by the United States.
I have the honor to be, with the highest consideration, my Lord, your Lordship’s most obedient servant,
General Schenck to Earl Granville.
London, May 28, 1872.
My Lord: I received last night, between 9 and 10 o’clock, your note informing me that you had lost no time in laying before the Cabinet the telegraphic dispatch from Mr. Fish, which I communicated to you yesterday, informing you of the result of the deliberations of the Senate on the draught Article, submitted for their advice by the President of the United States.
You remark that in communicating that dispatch to you I inquired whether any possible interpretation could be given to the proposed Article in the form in which the Senate have modified it, taking all its parts together, which would prevent taking before the Arbitrators, to be considered by them in making their award, that part of the claim called “direct claims” in the Case, which relates to the cost of pursuit and cap-tare of cruisers; and you state that you must, on behalf of Her Majesty’s Government, decline to answer that question as to the effect of the Article as altered by the Senate, or to state what possible construction it may bear.
I will here only interpose, as to that question, to say that the point was brought to your Lordship’s attention, in connection with the delivery to you of the Article as the Senate had proposed to amend it, because I desired by the inquiry to remind you that, whatever might become the form in which the article might ultimately be adopted, it could not be intended to open any question in relation to claims to the introduction of which Her Majesty’s Govornment had never objected, “notwithstanding the doubt how far those claims, though mentioned during the conferences as direct claims, came within the proper scope of arbitration.”
I quote the language of your Lordship’s note to me of the 20th of March last. The Government of the United States is of opinion that the language of the Senate cannot be interpreted to exclude those claims; but I am now instructed to say that the Article, in whatever form adopted, as to the proceeding before the Arbitrators at Geneva, must be understood to prevent only the presentation of the claims enumerated in the second contention of Her Majesty’s Government.
Your Lordship in this note proceeds to inform me that Her Majesty’s Government are of opinion that the definition, as expressed in the Senate amendment, of the principle which both Governments are prepared to adopt for the future is so vague that it is impossible to state to what it is or is not applicable, and they believe that it would only lead to future misunderstandings. That Her Majesty’s Government prefer the Article as they had draughted it, but have no objection to accept the Article in the form proposed by the Senate, with the substitution of the words “of a like nature “for the words “for remote or indirect losses,” and the substitution of the words “such want of due diligence on the part of a neutral” for the words “the failure to observe neutral obligations.” The Article would then run thus: “And whereas both Governments adopt for the future the principle that claims of a like nature should not be admitted as the result of such a want of due diligence on the part of a neutral, so far as to declare that it will hereafter guide the conduct of both Governments in their relations with each other.”
I hastened last night to telegraph the full substance of all this communication to Mr. Fish.
I am as yet without any answer to that telegram, and without instruction or information as to the disposition of my Government to entertain or consider the changes which Her Majesty’s Government propose to the Senate’s amendment. But I am not prepared to believe that the modification can be assented to by the President. Such change of language would alter the whole character of the agreement.
I cannot permit to pass unquestioned the expression of the opinion of Her Majesty’s Government as to the vagueness of the definition of the principle which both Governments are prepared to adopt, and of the impossibility of stating to what it is or is not applicable, although in replying I may but in effect repeat what I said to you in an interview of the 10th of this month, and of which I gave you a memorandum in writing.
What the United States has all along proposed as the ground on which the two Governments might safely, honorably, and consistently meet, is the establishment of a rule, to be the law or contract in the future between them, declaring that neither of them shall demand compensation from the other for remote or indirect losses arising out of, or being the result of, failure in the observance of neutral obligations. This rule should be the expression of a principle to be applied to cases as they may arise; and ought not to consist in a reference to cases or circumstances which may or may not ever occur, and be limited to those instances, without application to other cases in which the damage done or alleged may be equally or farther removed from the act of which it is assumed to be the result.
They do not see that there is vagueness in such a rule or difficulty in its application [Page 539] to facts, beyond what may be said of any other principle embodied in statute or treaty law.
Consider, my Lord, what is the history of that difference between our two Governments which has led to the negotiation for a supplemental Treaty Article.
The United States have put forward in their Case at Geneva, for the consideration of the Arbitrators, certain claims, to which the British Government objects. Great Britain founds her objection to those claims not merely on her interpretation of the Treaty, according to which she insists they are inadmissible, but also on the ground that such claims are, from their very character and nature, such as ought not to be presented; “that such claims,” to use the emphatic language of your Lordship, “are wholly beyond the reasonable scope of any treaty of arbitration whatever, and that to submit them for decision by the Tribunal would be a measure fraught with pernicious consequences to the interests of all nations and to the future peace of the world.” That Her Majesty’s Government “cannot see that it would be advantageous to either country to render the obligations of neutrality so onerous as they would become if claims of this nature were to be treated as proper subjects of international arbitration.”
What is that nature of the claims in question which makes them so objectionable to Her Majesty’s Government? They are indirect, remote, consequential.
Will you, then, unite with us, asks the Government of the United States, in an agreement founded upon that principle for which” you contend, and as broad as the principle itself, “that claims for remote or indirect losses should not be admitted as the result of failure to observe neutral obligations;” and will you unite with us in a declaration that this principle “will hereafter guide the conduct of both Governments in their relations to each other?” Can Great Britain continue to reply that while she desires to make such a rule, a rule consistent with the position she has taken against the whole class of remote or indirect claims, against a neutral, she must persist in confining it in terms to only such peculiar descriptions of that class of indirect claims as happen now to be the subject of contention between her and the United States, and which particular kind of claims may never have existence again? Will it not seem, if this be the limit of the agreement, that the object is not to affirm and vindicate an important principle, but only to find an expedient for excluding from consideration, or extinguishing altogether, certain matters which are unfortunately now a present cause of controversy?
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 reply to the inquiry contained in your letter of this day, respecting the limitation placed upon the immediate exercise by Sir Edward Thornton of the general full power to sign treaties with which he is provided, I have the honor to acquaint you that while we are far from asserting that the form of Article proposed by Her Majesty’s Government is not capable of further improvement upon sufficient cause being shown, Sir Edward Thornton has no instructions to use his full powers, except in accordance with the arrangement we have proposed.
I have the honor to be, sir, your most obedient, humble servant,
Earl Granville to General Schenck.
Sir: I have to acknowledge the receipt of the letter which you have done me the honor to address to me, in reply to my letter of yesterday, in which I informed you that I had laid before the Cabinet the telegraphic dispatch from Mr. Fish, stating the result of the deliberations of the Senate on the draught Article submitted by the President for their advice.
As you acquainted me to-day that you had not received any reply from Mr. Fish to your communication of my letter, I think it better to defer till I hear from you the view taken of my letter by Mr. Fish, before replying to the observations contained in your letter.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
Earl Granville to General Schenck.
Sir: I think it desirable at once to address to you the following observations, in addition to what is stated in my letter of yesterday:
Her Majesty’s Government proposed an Article on the suggestion of the American Government.
That Article has been amended by the Senate.
Her Majesty’s Government are not able to find for it, as amended, any means or standard of interpretation.
The words appear to include the willful misconduct of a neutral as well as a failure from want of due diligence.
They cannot suppose this to be the meaning of the American Government.
Her Majesty’s Government hold all the claims made by the United States for losses which were the direct results of the acts of vessels mentioned in the Treaty, to be claims for “indirect losses as the result of the failure to observe neutral obligations.”
Her Majesty’s Government hold many of the claims for the losses above mentioned to be claims for losses which are “remote” as well as “indirect,” while “resulting from a failure to observe neutral obligations.”
Her Majesty’s Government are unable to signify an assent to a form of Article of which they cannot for themselves discover the scope, and with respect to which, owing probably to the difficulty of telegraphic communication, they have not been apprised of the meaning which the American Government attaches to it, or of the reasons which have led to its being proposed.
If the Government of the United States think it desirable to give the information which Her Majesty’s Government wish to receive on these points, and also think that for that purpose some adjournment of the time of meeting of the Arbitrators of Geneva should take place, Her Majesty’s Government would be ready to agree to any suitable proposal for that purpose, which they presume could only be done by a short treaty between the two Governments.
I have the honor to be, with the highest consideration, sir, your most obedient humble servant.
General Schenck to Earl Granville.
London, May 28, 1872.
My Lord: I received at 8 o’clock this evening your note of this date, in which you say you think it desirable to address to me, as you therein proceed to do, some observations in addition to what is stated in your letter of yesterday.
I shall hasten to-night to communicate the whole of this note by telegraph to my Government.
I have the honor to be, with the highest consideration, my Lord, your Lordship’s, most obedient servant,