No. 91.
General Schenck to Mr. Fish.
Your telegram of yesterday received this morning.
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You will do me the justice to believe I have had no exchange of views with anybody here but the Government, through the proper channel. I must also do justice to them 5 they have not adopted or sympathized with the fears and suspicions of others in regard to the last clause of proposed Article, but defended it as sufficient. I, of course, would have resented any intimation from them that my Government could possibly act in bad faith.
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I knew your earnest desire to save the Treaty. I knew that, for the consideration expressed in the rule as amended by the Senate, the Government of the United States intended to abandon altogether the three classes of indirect claims, and although I knew the difficulty of opening the main question in the Senate, I thought they might at once agree to show their friendly and sincere purpose by expressing that intention, even more distinctly than had been asked or needed, if by so doing their own expression of the rule could be secured. Late last night, I received from Lord Granville, after a long Cabinet session, three notes, which I send, but to which I have not replied. I will see him immediately, and communicate your views as to the uselessness of expecting change in the Senate Article, and will probably telegraph you again to-day.
The first note is as follows:
[Earl Granville to General Schenck.]
Sir: I laid before the Cabinet the telegraphic message from Mr. Fish, which you communicated to me on the 3d instant. That message is only in answer to a portion of the objections raised by Her Majesty’s Government to the alterations in the draught Article proposed by the Senate, and does not notice the other points to which I called your attention in my letter of the 28th ultimo, and which were intended to show that the effect of those alterations is to transfer the application of the adjectives “indirect” and “remote” from one subject with reference to which they have been used in the recent correspondence, viz, claims made as resulting “from the acts committed” by certain vessels, to a different subject, viz, those made as resulting from “the failure to observe neutral obligations.” It is evident that a loss which is direct and immediate with reference to the former subject may be indirect and remote with reference to the latter, and this appears to Her Majesty’s Government to be actually the case with respect to the claims which it is assumed the Government of the United States still intend to make before the Arbitrators.
The Government of the United States must see that it is impossible for Her Majesty’s Government to authorize Her Majesty’s Minister at Washington to sign a treaty,, the words of which appear to Her Majesty’s Government to say one thing upon a mere understanding to the contrary effect.
The second note is as follows:
[Earl Granville to General Schenck.]
Sir: There is a difference of opinion between the Government of the United States and Her Majesty’s Government as to the necessity of presenting the written or printed [Page 559] arguments on the 15th of June. I beg to suggest to you that the fifth Article is directory; it speaks of something which it shall be the duty of the Agents of the two Governments to do within a certain time; it does not say that the Treaty is to lapse if this duty is neglected or not performed by the Agents or Agent of both Governments, or of either of them. It would hardly be suggested that the Treaty would lapse if one only of the two Agents omitted to lodge a written or printed argument, such as this Article contemplates, yet there is no more reason for saying that such a written or printed argument to be then delivered is a sine qua non of the Treaty if both Agents omit it than if only one does so. The Article is in its nature one of procedure only for the mutual information (it maybe) of the parties, and entirely for the assistance of the Arbitrators, but mainly for the benefit and advantage of the parties themselves, who, in such a matter, may or may not choose to avail themselves of it, nor would any practical inconvenience or disadvantage arise to either party (in case the arbitration proceed) from an agreement not to present such arguments until a later date, the Arbitrators having full power at any later date to admit such written or oral arguments as they may think fit. Her Majesty’s Government would make no difficulty as to a suitable arrangement for the presentation of the arguments if a Convention were signed by Mr. Fish and Sir Edward Thornton and ratified by the Senate, although there was not time for the ratifications to be exchanged in London previously to the 15th of June.
Third note thus:
[Earl Granville to General Schenck.]
Sir: I have to state to you that with the view of obviating the difficulty connected with the meeting of the Arbitrators at Geneva on the 15th instant, and the presentation of the written or printed argument under the fifth Article of the Treaty on that day, Her Majesty’s Government are still ready either to agree in an application to the Arbitrators on the 15th to adjourn at once without the presentation of the argument of either Government, or to conclude a new arrangement with the treaty-making power of the United States for the enlargement of the time; or, instead of the amendments to the Treaty Article which Her Majesty’s Government last proposed, they are willing to conclude it with the following additions: First, to insert after the paragraph, as altered by the Senate, the words, the remote or indirect losses mentioned in this agreement, being losses arising remotely or indirectly from, and not directly from, acts of belligerents.” Second, to insert after this paragraph another paragraph: “further, the stipulations of this Convention as to future conduct have no reference to acts of intentional ill faith or willful violation of international duties.” The objections to negotiating on a proposition which involves the idea that either country may be guilty of intentional ill faith or willful violation of its international duties might be met by such a declaration as that proposed in the second of these additions being inserted in the Treaty Article, or, if the United States should prefer it, by an interchange of notes, approved by the Senate at the time of ratification.