No. 121.
Mr. Fish to General Schenck.
Washington, August 31, 1872.
Sir.: I have the pleasure to acknowledge your No. 290, inclosing two copies of the Queen’s speech on the prorogation of the two Houses of Parliament, on the 10th instant.
The telegram had enabled the public journals to bring to my notice this speech, or at least that part of it where Her Majesty is made to say that the declaration of the Arbitrators at Geneva is entirely consistent with the views which she announced to Parliament at the opening of the session, and I had observed what you comment upon, that Her Majesty in her speech at the opening of the session had said, “In the case so submitted on behalf of the United States, large claims have been included which are understood on my part not to be within the province of the Arbitrators.” A very long correspondence ensued in which this Government contended, in effect, that all the claims presented were within the proper jurisdiction of the Tribunal, and that they could be disposed of only upon the judgment, or award, of the Arbitrators. At their fifth conference, on 19th June, Count Sclopis, as President of the Tribunal, on behalf of all the Arbitrators, made a statement, in the course of which he said, “The Arbitrators think it right to state that after the most careful perusal of all that has been urged on the part of the Government of the United States in respect of these claims,” (referring to those which Her Majesty had thought were not within the province of the Tribunal,) “they have arrived, individually and collectively, at the conclusion that these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation, or computation of damages between nations.”
The President of the Tribunal, in behalf of all the Arbitrators, officially states that they had given “the most careful perusal” to “all that had been urged in respect of the claims”—this looks very much like taking cognizance of them;—that after such perusal they had not only individually but “collectively” arrived at a “conclusion;” the “collective” action of a Board must be official action.
[Page 583]The Tribunal then, after taking cognizance of these claims, officially pronounces the opinion that, upon the principles of international law-applicable to such cases, they do not constitute good foundation for an award of compensation or computation of damages between nations. The President could regard this only as a definitive expression—a judgment of the Tribunal upon the question of public international law applicable to such cases, deciding that claims for remote or consequential injuries do not constitute good foundation for compensation in damages between nations.
At the sixth conference (25 June) the Agent of the United States stated that the declaration thus “made by the Tribunal is accepted by the President of the United States as determinative of their judgment upon the important question of public law involved,” and “that, consequently, the above-mentioned claims will not be further insisted upon before the Tribunal by the United States.” They had been insisted upon before the Tribunal, but “will not be further insisted upon.” The British Agent then said that he would inform his Government of the declaration made by the Arbitrators on the 19th, and of the statement now made by the Agent of the United States, and request their instructions.
Thus advised that the President accepted the declaration of the Tribunal as determinative of “their judgment upon the important question of public law involved,” and that the United States would not further insist upon these claims before the Tribunal, the British Agent, acting under instructions from his Government, assumed that the Arbitrators would, upon such statement, think fit now to declare that the said several claims are, and from henceforth will be, excluded from their consideration, and would embody such declaration in their Protocol of that day’s proceedings. Upon this motion (as it would be called in a court of law) of the British Agent, Count Sclopis, the presiding Arbitrator, on behalf of all the Arbitrators, then entered final judgment, declaring “that the said several claims for indirect losses mentioned in the statement made by the Agent of the United States, on the 25th instant, and referred to in the statement just made by the Agent of Her Britannic Majesty, are, and from henceforth shall be, wholly excluded from the consideration of the Tribunal, and directed the secretary to embody this declaration in the Protocol of this day’s proceedings.”
The Protocols thus show that these claims, which Her Majesty was made to say to Parliament, on the 6th of February, were “understood, on her part, not to be within the province of the Arbitrators,” were by them taken into consideration; that the Tribunal gave “the most careful perusal” to all that was urged on their behalf by the United States; that it pronounced its collective opinion upon their legal inadmissibility under the principles of international law as the foundation of an award of damages; that the United States declared their acceptance of this opinion as the judgment of the Tribunal upon the question of public law involved, and expressed their willingness not to further insist upon the claims before the Tribunal; that the Arbitrators, upon the suggestion of the British Agent, declared the claims now and from henceforth excluded from their consideration, and embodied in their Protocol the declaration requested by the British Agent.
If the claims had not been within the consideration of the Tribunal, of what necessity the request to ask a formal order that they be “from henceforth wholly excluded?”
If they were not within the province of the Arbitrators, why should the Arbitrators give them consideration, or give the most careful perusal [Page 584] to what was urged in respect to them; or why should they express their individual and collective opinion with regard to them?
If not within “the province of the Arbitrators,” why should the British Government, through instructions to its Agent, and upon the statement of the Agent of the United States that they will not be further insisted upon before the Tribunal, ask for the entry of an order upon the Protocol that they be, “from henceforth, wholly excluded from all consideration?”
Her Majesty’s speeches to Parliament, although they may justify interpretation or comment by other Powers, do not require it in all cases.
However inconsistent the declaration of the Arbitrators may in reality be with the view announced by Her Majesty to Parliament at the opening of the session, I do not see that there is any occasion to disturb the self-complacency of the expression with which the Ministry, through the Crown, assure the Parliament that antagonisms are agreements.
The Arbitrators of Geneva have requested that secrecy be observed as to their transactions. I am not fully aware how far this request is intended to apply, but as I have quoted from their proceedings, you will, for the present at least, give no publicity to the citations or references I have made to their decisions further than as they may have reached you through other channels.
I am, &c.,