No. 86.
Mr. Fish to General Schenck.
Washington, June 3, 1872.
Sir: Your dispatch No. 233 of the 18th ultimo, inclosing copy of supplement to the London Gazette of the day previous, has been received. This copy of the Gazette brings to the Department the first notice it has had of Earl Granville’s note of the 13th ultimo, which probably appeared in print, submitted to the British public, long before it reached Sir Edward Thornton, to whom it purports to be addressed.
The avowed purpose of Earl Granville’s note is to notify Sir Edward Thornton that Her Majesty’s Government have refrained from continuing “an argumentative discussion with the Government of the United States, upon the scope and intention of the Articles in the Treaty of Washington, relating to the Arbitration on the ‘Alabama claims;’” and to put him in possession of the views of that Government, with reference
SCHENCK.
[Page 548]to some passages which occur in my note to you of the 16th of April. Of course it will not be assumed that the object of its publication in Great Britain, in advance of its possible receipt by the gentleman for whose instruction it was written, had any connection with the influencing of public opinion in Europe, or near the expected scene of the Geneva Tribunal.
It never was the desire of this Government to open, much less to prolong, discussion with her Majesty’s Government upon the scope and intention of the Articles in the Treaty of Washington relating to the Arbitration on the Alabama claims. The Government of the United States hoped, as it had reason to believe, that before the august Tribunal, appointed in accordance with the terms of the Treaty of Washington to “examine and decide” upon the matters in dispute between the United States and Great Britain, and designated as the “Alabama claims,” the Treaty would be its own interpreter. Resting upon this most reasonable conviction, it has been the earnest wish of the President (a wish often expressed in the correspondence of this Department on the subject) to remit all discussion as to the scope and meaning of the Treaty to that Tribunal. Had this feeling been reciprocated by Her Majesty’s Government, the discussion which has occurred between the two Governments upon the true meaning-of the Treaty might have been in a great measure avoided, Upon the present point of contention between this Government and that of Great Britain, namely, whether the claims for “national losses” popularly denominated “indirect damages,” are by the terms of the Treaty fairly within the province for the consideration and decision of the Geneva Tribunal, the United States it is believed will lose nothing by the fullest discussion of the question.
In my note to you of the 16th of April, I had occasion to say, “It is difficult to reconcile the elaborate line of argument put forward by Earl Granville to show a waiver of claims for indirect losses, with the idea that at the outset of the negotiations Her Majesty’s Government did not consider the matter of public or national injuries as the basis of an outstanding claim against Great Britain, on the part of the United States.’ His Lordship’s instruction of the 13th ultimo, now before me, does not serve to lessen, much less to remove, the difficulty thus suggested. In this instruction Earl Granville, with great skill and ingenuity, recapitulates the previous arguments on the question, and arranges, with infinite care, the facts upon which he desires that the propositions advanced by Her Majesty’s Government should rest. Passing over a certain tone of criticism, which may with propriety be ascribed to the pressure of public business upon his Lordship at the present moment, I proceed to notice some statements in his Lordship’s note, from which he draws inferences in my opinion wholly unwarranted by the premises. I do this that you may be put in possession, not only of all new facts on the subject, but also of the views of this Government, in order that you may be able to make such use of them in your future intercourse on this subject with Her Majesty’s Government as the occasion may demand.
Speaking of the allusion in my instruction of the 16th of April to Earl Russell’s dispatch of March 27, 1863, to Lord Lyons, Earl Granville says: “Mr. Fish omits the words ‘of which the Confederate loan is an additional proof;’ which, taken with the context, shows that Mr. Adams was then speaking not of the case of the ‘Alabama,’ but the assistance in money and materials, which he considered was improperly rendered to the Confederate States by blockade-running and the cotton loan.” It is true that those words were omitted; there was no reason why they should have been quoted; they refer to some other and additional proof [Page 549] of the conspiracy which Mr. Adams was pointing out, as tending to bring on a war with a view to aid the Confederate cause. My object was not to fortify what Mr. Adams had said, but to show that he had notified to Great Britain that her conduct was aiding the Confederate cause; with or without the omitted words the extract establishes the notice. The cumulative evidence which they afford of the conspiracy that Mr. Adams notified to Lord Russell is unimportant to the notice given. The suggestion of the omission seems to be an ingenious avoidance of a material issue in the case by raising another of no possible significance.
But in this connection it is difficult to imagine by what process of divination Lord Granville assumes that Mr. Adams was speaking with reference to blockade-running, which is not even alluded to in Lord Russell’s note, and seems to be an interpolation wholly unsustained by the narrative of Lord Russell, whose general amiability of character and friendship for the United States have never yet subjected him to the suspicion of withholding anything that might be used to their disadvantage or discredit. A perusal of Lord Russell’s note (which is appended hereto, copied from the British Blue Book, North America, No. 1, 1864, p. 2) shows the main object of the interview which Mr. Adams had sought with Lord Russell to have been the presentation of a dispatch of Mr. Seward, complaining of the fitting out and the depredations of the “Alabama” and the “Oreto,” and other cruisers, to which the conversation was mainly confined. These things Mr. Adams thought made manifest a conspiracy, of which the “Confederate loan was an additional proof,” and he thus brought the existence of a conspiracy with a view to prolonging the war to the notice of the British Government.
I appeal to Lord Russell’s note to determine whether, as I supposed, and as Lord Granville denies, Mr. Adams referred to the “Alabama” as among the causes tending to produce the exasperation which might lead to a war “with the view to aid the Confederate cause,” and whether, as Lord Granville asserts, and I doubt, Mr. Adams was speaking of “blockade-running.”
If (as I think that Lord Russell’s note establishes) the “Alabama” and other cruisers were the subject of the conversation, there was no occasion on my part to adduce the Confederate loan as “additional proof.” The fact that it is mentioned as “additional proof” shows that it was not the main proof of which Mr. Adams had been speaking. Lord Granville has unhappily misconceived the subject which formed the leading topic of the interview between Mr. Adams and Lord Russell.
The depredations of the cruisers afloat, the continued building of ships for the Confederates in British ports, the manning those ships with British sailors, and the unconcealed desire on the part of the conspirators for the success of the Confederates, and for a monopoly of the trade of the Southern States: this, in the estimation of Mr. Adams, was the evidence of the existence of the conspiracy of which the Confederate loan was incidentally referred to as “additional proof.”
Earl Granville mentions that the dispatch of the 14th of February, 1866, and that of 2d May, 1867, both from Mr. Seward to Mr. Adams, were neither of them communicated to Her Majesty’s Government. If his Lordship means that these notes were not officially communicated to his Government at the time of their date, he is unquestionably right, but then he controverts what was not alleged. I had said “the official correspondence of this Government which was published and is within the knowledge of Her Majesty’s Government;” this Lord Granville does [Page 550] not deny, and this I re-assert. A Volume containing the notes referred to was placed in the possession of the British Joint Commissioners, and was again formally delivered to the Agent of Her Majesty, at Geneva, in December last. Lord Granville himself more than once quotes from it, thus establishing what I have asserted, that the contents of that volume were within the knowledge of Her Majesty’s Government.
Lord Granville refers to a dispatch to Mr. Seward, dated 17th February, 1869, in which Mr. Reverdy Johnson reviews the objections made in the United States to the Convention negotiated by him. His Lordship makes a long extract from this dispatch, referring to “page 767 “as that on which it appears. The two dispatches which he had intimated had not been communicated to Her Majesty’s Government, appear in the same volume from which he thus quotes, the one at page 628, the other at page 673.
At the conclusion of this extract his Lordship proceeds: “If Mr. Johnson was mistaken in the view thus decidedly expressed, it might be expected that some notice would have been taken of so important an error.”
When it is remembered that the Convention of which Mr. Johnson was then speaking, and in the negotiation of which he had acted so prominent a part, was rejected by the Senate of the United States, a branch of the treaty-making power of this Government, it can scarcely be said, even with plausibility, that Mr. Johnson’s expression of his own views, in the dispatch from which Earl Granville quotes so liberally, was allowed to pass unnoticed by this Government. The vote of the Senate is understood to have shown only one member who, from whatever cause, approved Mr. Reverdy Johnson’s Treaty. The inference may be fairly drawn that no other Senator shared Mr. Johnson’s views.
The opinion obtained somewhat extensively, in this country at least, that the Senate of the United States did take a somewhat decided notice of the Treaty, and that in rejecting the Treaty itself, as the Senate did, it swept away all the reasoning and argument in its defense, which thenceforth needed no further notice. But however this may be, the dispatch which Earl Granville quotes establishes the fact that, at its date, the claims which Her Majesty’s Government employs Mr. Johnson’s dispatch to controvert had been advanced. Historically, therefore, they were then known. The date of this dispatch is more that two years before the meeting of the Joint High Commission. The citation of this dispatch by Her Majesty’s Government would seem to bring to it a knowledge of the existence of these claims anterior to the meeting of the Joint High Commission, although we have elsewhere been told that their presentation to that Commission was a surprise.
Soon after the reception of this dispatch of Mr. Johnson’s by his Government, he ceased to be its representative at the Court of St. James. Those who know Mr. Johnson’s social and genial qualities will not be surprised to find that Lord Granville, not content with citing his official dispatch in explanation of the conversation, proceeds to cite in defense of the British side of the question, a professional letter of Mr. Johnson, written several months after his retirement from public life.
In an instruction from this Department to Mr. Motley, (Mr. Johnson’s successor as the representative of this Government,) dated May 15, 1869, informing him of the then recent action of the Senate of the United States, on what was familiarly known as the “Johnson-Clarendon Treaty,” the views of this Government are thus expressed in relation to the claims of the United States against the British Government: “Upon one point the President and the Senate and the overwhelming mass of the people are convinced, [Page 551] namely, that the Convention, from its character and terms, or from the time of its negotiation, or from the circumstances attending its negotiation, would not have removed the sense of existing grievance, would not have afforded real, substantial satisfaction to the people, would not have proved a hearty, cordial settlement of pending questions, but would have left a feeling of dissatisfaction, inconsistent with the relations which the President desires to have firmly established between two great nations of common origin, common language, common literature, common interests and objects in the advancement of the civilization of the age.”
The action of the United States Senate, as above shown, and the expression just quoted from my dispatch of May 15, 1869, to Mr. Motley, furnish a correct history of the attitude of the Government of the United States in relation to the whole subject, at a time contemporaneous with the expression of Mr. Johnson upon which Earl Granville places so much reliance. The support which Her Majesty’s Government can derive from Mr. Johnson’s dispatch seems to me very slender.
To show that the United States continued to maintain this position in relation to the claims, it may not be out of place to call your attention to the language of my instruction to Mr. Motley of September 25, 1869, in which occurs the following expression of the views then entertained by this Government: “The President is not yet prepared to pronounce on the question of indemnities which he thinks due by Great Britain to individual citizens of the United States, for the destruction of their property by rebel cruisers fitted out in the ports of Great Britain. Nor is he now prepared to speak of the reparation which he thinks due by the British Government for the larger account of the vast national injuries it has inflicted on the United States. Nor does he attempt now to measure the relative effect of the various causes of injury, as whether by untimely recognition of belligerency, by suffering the fitting out of rebel cruisers, or by the supply of ships, arms, and munitions of war to the Confederates, or otherwise in whatever manner. * * * All these are subjects of future consideration, which, when the time for action shall arrive, the President will consider,” &c. It seems strange that this language should have failed to make evident the existence of a serious complaint on the part of this Government on account of the national losses and injuries consequent upon the increased rates of insurance, the transfer of the merchant marine of the United States to Great Britain, and the increased expenditure caused by the prolongation of the war for the suppression of the rebellion.
That the idea of a claim on the part of the United States for indirect damages for national losses was even then neither new nor obscure in the minds of eminent British statesmen, 1 need but refer again to the opinions expressed by Lord Cairns and Professor Bernard, quoted in my note of the 16th of April. I see no reason to qualify what I then found occasion to say: “At every stage, therefore, of the proceedings, from November, 1862, when Mr. Adams ‘solicited redress for the national injuries sustained,’ to the date of the Treaty, this Government has kept before that of Great Britain her assertion of the liability of the latter for what are now termed the indirect injuries.” Earl Granville surely cannot dismiss the uninterrupted and consistent assertion of the claims of the United States against Great Britain for national losses suffered by the former, in consequence of a disregard of national obligations by the latter.
It remains to notice one other passage in the dispatch of Earl Granville, alluding to my reference, in the note of the 16th of April, to the [Page 552] work of Professor Bernard. His Lordship says: Still less can they (Her Majesty’s Government) admit that because Mr. Bernard, in the 14th chapter of his work, gave certain extracts from Mr. Fish’s dispatch, under the head of ‘Alabama claims,’ that dispatch became the standard by which the claims known as Alabama claims were to be measured.”
Here again his Lordship repels what was not proposed. Mr. Bernard was quoted to show that Her Majesty’s Government entered upon the negotiation of the Alabama question with a knowledge of the existence of the claims of the United States for indirect losses. There was no suggestion that the dispatch which Mr. Bernard quoted was to be a standard of measure, but that the fact of quoting by Mr. Bernard showed knowledge on his part of the existence and nature of claims which elsewhere was denied. His Lordship then proceeds: “It happens, moreover, that in the extracts given by Mr. Bernard, in the chapter to which Mr. Fish refers, the three passages cited by Mr. Fish in his present dispatch as relating to indirect injuries and national losses are omitted.”
I am bound to suppose that the repeated apparent denial of what was not asserted is the result or consequence of the haste in which his Lordship’s note was given to the press. In my dispatch to you I had not said that the passages cited by me were among the extracts given by Mr. Bernard “in the chapter” to which I referred. My language was, “in this work he summarizes an instruction,” &c. I have, therefore, to repeat what I said, namely, that the passages cited by me appear in Professor Bernard’s work; and I must direct your attention to the fact that, while Lord Granville denies (what was not asserted) that these passages do not appear in a certain chapter, he does not deny (whatever may be the impression casually produced by his language) what I asserted, namely, that the passages do appear in Professor Bernard’s work. I refer to pages 492 and 493, where they will be found.
Referring to a former dispatch of mine, Lord Granville thinks that it is apparent that the “vast national injuries” presented in it are ascribed to other causes than the acts committed by the Confederate cruisers, and among other extracts from the dispatches he quotes me as saying, “nor does he (the President) attempt now to measure the relative effect of the various causes of injury, as whether by untimely recognition or belligerency, by suffering the fitting out of rebel cruisers, or by the supply of ships, arms, and munitions of war to the Confederates, or otherwise in whatever manner.” With regard to the interview of Mr. Adams with Lord Russell, in March, 1863, the statement by the latter that the former had referred to the Confederate loan as “additional proof” of what Mr. Adams had alleged to exist, has been advanced to prove that Mr. Adams was not speaking of the subject which he sought the interview to discuss, but of something of which neither he nor Lord Russell made any mention. Here the argument appears to be of the same nature, that because some “additional” causes of complaint other than those put forward before the Joint High Commission, and before the Arbitrators at Geneva, have been advanced in some correspondence on the part of this Government, that a certain class of claims are not included under the head of “Alabama claims.”
Lord Granville says, “Mr. Fish gives as a reason for no claims for national losses having been ‘defined’ or ‘formulated,’ that Lord Russell objected in July, 1863, to any claims being put forward.”
A reference to my dispatch to you of the 16th of April last shows me as giving a different reason. I said, “During the war these claims [Page 553] were continually arising and increasing, and could not then be defined, and the time for formulating them would not arise until a willingness to enter upon their consideration arose.” Lord Russell’s objections were mentioned, it is true, in addition to the reason above quoted, but although “additional,” they are .not therefore exclusive.
The communications which the British High Commissioners may have made to their Government, either pending the negotiation or since, can scarcely be urged with seriousness upon this Government for acceptance in the construction of the Treaty. One of those gentlemen is reported as saying recently “that we, the (British) Commissioners, were distinctly responsible for having represented to the Government that we (they) understood a promise to be given that these claims were not to be put forward, and were not to be submitted to arbitration.” He does not say by whom, on what occasion, or in what manner, such promise was made. He involves all his colleagues in the representation made to their Government, that such promise had been made. But this seeking aliunde, outside of the Treaty and of the Protocol, to establish a meaning or to explain its terms, has had the effect, which the honorable baronet who made the declaration anticipated, to raise “a personal question,” and I cannot allow this reference made by Lord Granville to the information furnished to Her Majesty’s Government by Her High Commissioners to pass without alluding to the representation which Sir Stafford Northcote (one of those Commissioners) says that the commissioners are responsible for having made to their Government.
In justice to myself and my colleagues on the American side of the Commission, I must take this occasion (the first that has presented itself since I have seen the speech of Sir Stafford Northcote) to say that no such promise as he states that the British Commissioners represented to their Government, as having been understood by them to be made by the American Commissioners, was in fact ever made. The official communications between the American and the British Commissioners (as you are aware) were all made by or to me as the first-named of the American Commissioners.
I never made and never heard of any such promise, or of anything resembling a promise on the subject referred to. None was ever made by me, formally or informally, officially or unofficially 5 and I feel entire confidence in making the assertion that none of my colleagues ever made any promise or any declaration or statement approaching to a promise on the subject. What may have been the understanding of Sir Stafford North cote, or of his colleagues, I cannot undertake to say, but that the American Commissioners gave him or them any grounds to understand that such a promise was given, as he says they represented to their Government as having been made, I am bound most respectfully but most emphatically to deny. I cannot conceive from what he has imagined it, as the only direct allusion to the three classes of claims (called the “indirect claims”) was that made on the part of the American Commissioners on the 8th day of March, and is set forth in the 36th Protocol in the words in which it was made.
The British Government has, in the correspondence which has recently taken place, endeavored to construe the withholding of an estimate of those “indirect claims” in connection with a proposition on behalf of this Government, which was declined by the British Commissioners, into their waiver. I have already discussed that question, and shall not here again enter upon its refutation. The Protocols and the statement approved by the Joint Commission furnish the substantial part of what passed on that occasion. I am at a loss to conceive what representation, [Page 554] outside of the statement made in the 36th Protocol, Sir Stafford Northcote can have made to his Government. He refers to some “personal question,” something which, until the time of his address, he and his colleagues had been under official restraint from discussing, but the Protocols and the statement to which I have referred had been before the public both in Great Britain and in the United States for nearly a year before his declaration. It is only within a day or two that the journals containing his address have reached me. I have this day addressed a letter to yourself and to each of our colleagues on the Commission, calling attention to Sir Stafford’s statement, and in due time may make public the correspondence.
Returning to Lord Granville’s dispatch in the supplement to the London Gazette, I find little else that has not already been discussed or that requires further reply.
It may, however, be noticed that the remote or consequential nature of claims does not appear to have been a serious objection to the presentation of such claims on the part of the British Government against the United States. Lord Granville, in the dispatch in the supplement, recalls the fact that the British Commissioners repeatedly put forward the Fenian raid claims, but not until the 3d of May, (after the American Commissioners had declined to treat on them,) did the British Commissioners admit that a portion of the claims were of a constructive and inferential character, having thus persistently, for nearly two months, kept before the Commissioners those constructive claims. It is not necessary now to consider the relative admissibility of “constructive “and of “indirect” claims, as the ground for pecuniary compensation against a Government;, under the principles of International Law.
His Lordship again refers to the case presented by the British Government to the Claims Commission, sitting in this city, for the Confederate cotton loan. While questioning the accuracy of my statement, that “the United States calmly submitted to the Commission the decision of its jurisdiction,” he proceeds to establish its accuracy by stating the motion made by the Counsel of this Government to dismiss the claim.
If the British Government will follow this example, and move the Tribunal at Geneva to dismiss the claims which it thinks are not included in the submission of the Treaty, a similar result may be obtained, and the benefits of the Treaty and of the principles of peaceful arbitration of grave differences between nations may be established.
I am, sir, your obedient servant,