said vessels. In case the Tribunal find that Great Britain has failed to fulfill any duty or duties as aforesaid, it may, if it think proper, proceed to award a sum in gross to be paid by Great Britain for all the claims referred to it." All the claims must mean all the "claims mentioned in Article I." Mr. Fish admits that the indirect losses are not covered by what he terms the other "alternative" of the Treaty, viz, the provision in Article X, that "in case the Tribunal finds that Great Britain has failed to fulfill any duty or duties as aforesaid, and does not award a sum in gross, the High Contracting Parties agree that a Board of Assessors shall be appointed to ascertain and determine what claims are valid, and what amount or amounts shall be paid by Great Britain to the United States on account of the liability arising from such failure, as to each vessel, according to the extent of such liability as decided by the Arbitrators." Mr. W. Beach Lawrence, the distinguished American publicist, in a letter dated the 20th ultimo, and published in the Springfield Independent, observes: “As in each case determined against Great Britain, the Board of Assessors are, by Article X, to ascertain and determine the amount which shall be paid by Great Britain to the United States on account of the liability arising from such failure as to each vessel, according to the extent of such liability as decided by the Arbitrators, there would seem to be no room for indirect damages. Besides the difficulty of deciding on a claim indeterminable in its nature, there would be the further embarrassment of apportioning the amount of injury growing out of the acts of each vessel in the general account. Is it possible that the Assessors are to decide what part of the prolongation of the war is to be assigned to each vessel? I am aware that there is a provision that the Arbitrators may, after they have decided as to each vessel separately, award a sum in gross for all the claims referred to them. I cannot, however, perceive how that provision in any wise extends the scope of the power of the Tribunal." Her Majesty's Govern ment cannot perceive it either. By both Articles VII and X, the Arbitrators are to determine the extent of the liability of Great Britain as to each vessel, i. e., as to each cruiser separately. Throughout, the claims are strictly connected with the acts of the cruisers. Mr. Fish acknowledges that, if the claims are considered in detail, the indirect losses cannot be taken into account; and yet, as he states, they have been "presented at Geneva, not as claims for which a specific demand was made, but as losses and injuries consequent upon the acts complained of, and necessarily to be taken into equitable consideration on a final settlement and adjudication of all the differences submitted to the Tribunal." I have already pointed out that "claims" and not "differences" have been submitted; and Mr. Fish's contention would amount to this, that, in awarding damages for a specific want of due diligence in regard to a particular vessel, the Arbitrators should take into consideration a variety of grievances not necessarily connected with that vessel, and which could not be made matters for a claim if examined in detail, and award a gross sum not proportioned to the want of diligence or to the injury thereby occasioned, but swelled by the amount of all the injuries and losses of which the United States may have complained in all the correspondence of which the history of the cruisers forms part. That is to say, that the Arbitrators should give judgment in one matter and inflict a penalty for another matter. A principle so contrary to the ordinary practice of jurisprudence could not have been presumed by the British High Commissioners, or by Her Majesty's Government, to have been intended to be introduced, unless the intention was explained to them; but, from first to last, no mention of indirect losses was made in connection with the payment of a gross sum. If the American High Commissioners desired that the alternative of the award of a gross sum should cover the claims for indirect losses, why were they not more explicit! and why did they not require some provision to be made in the Treaty to explain this for the guidance of the Arbitrators? Mr. Fish says that "the claims for indirect losses were presented to the British Com missioners as solemnly and with more definiteness of specification than were presented by them to the American Commissioners the claims for alleged injuries which the people of Canada were said to have suffered from what was known as the Fenian raids." But the indirect losses were never "presented" as "claims," and are even now said not to be "presented as claims" for which a specific demand is made; while the Fenian raid "claims" were proposed for consideration on the 4th of March; again "brought before" the High Commission on the 26th of April, when the British negotiators said that "they were instructed to present these claims," and it was not until the 3d of May that they said that "they would not urge further that the settlement of these claims should be included in the present Treaty. And that they had the less difficulty in doing so, as a portion of the claims were of a constructive and inferential character." Thus while the American indirect losses were only mentioned once, and then as it were incidentally, the Fenian raid claims were repeatedly and formally presented, and when their withdrawal from the negotiation was agreed to at its close, it was with a remark which could have had no just bearing, had not it been believed that all con structive and consequential claims had been withdrawn and excluded on the American si de also. Mr. Fish expresses doubts as to the points raised in my letter of the 20th of March, that the Washington Claims Commissioners have, and the Arbitrators have not, power to decide upon the extent of their own jurisdiction, and that no words similar to those conferring that power are to be found in the articles relating to the Geneva Arbitration. It will be seen, on comparing the Treaty of Washington with the Claims Convention between Great Britain and the United States of the 8th of February, 1853, that the words which I had quoted from the XIVth Article of the former are identical with the words used in the IIId Article of the latter, under which the Claims Commissioners were empowered to give, and did undoubtedly give, decisions as to the extent of their jurisdiction; as for instance, in the claims for Texas bonds of James Holford's executors, and Philip Dawson, and for Florida bonds of Heneage W. Dering, and in other cases. (See Senate Executive Documents, No. 103, 34th Congress, 1st session, pp. 63, 64.) The Articles engaging to consider the results of the proceedings of the Tribunal, and of the Claims Commission, respectively, as final settlements, Articles XI and XVII, ar also adopted from the Convention of 1853, Article V ; 'and had it been desired to give the same powers of jurisdiction to the Arbitrators as to the Commissioners, a clause similar to that in the XIVth Article would have been inserted to express it. In the absence of such a clause the jurisdiction of the Arbitrators remains restricted to the particular claims "known as Alabama claims," submitted to them in Article I. Her Majesty's Government cannot admit that a power which, when it is designed to be given to the Claims Commissioners in one part of the Treaty is given in express words, can be inferentially assumed to be given in another part of the Treaty to the Arbitrators, by assigning a broad signification to the term "question" in the IId Article. The questions which the Arbitrators are to examine and decide are obviously all questions that may be laid before them by the respective Governments, in preferring and refuting the particular claims on which their judgment is requested, and the Article must be read in connection with the succeeding Articles III, IV, and V, providing how the Cases, Counter Cases, evidence, and arguments are to be brought before them. Mr. Fish cannot mean that the Arbitrators may decide "any questions" not coming within the terms of the reference to the Tribunal. If that were to be the case, Her Majesty's Government might bring forward as a set-off against the "Alabama claims" the questions of the injury done to British trade by the blockade, or the Fenian raids, or possibly other questions. In short, a scope would be given to the Arbitration which the United States Government could not have contemplated, and would probably be unwilling to admit. Mr. Fish states that "the United States calmly submitted to the Commission the decision of its jurisdiction" over the Cotton Loan Claims; but this statement does not appear to be at all borne out by the "Argument for the United States on motion to dismiss" these claims. The United States Agent moved for the dismissal of the claim, as not being included under the Treaty, and plainly notified that the United States refused to permit it to be considered as included; his argument being that there was a constitutional provision which prevented the payment of such claims, that this was known to the American Commissioners when negotiating the treaty, to the American Government when accepting it, and to the Senate when ratifying it, and that it was impossible for the United States to pay or to consider the question of paying the claims. "It must be borne in mind," he said, "that at the time of this correspondence, as well as at the time of the conclusion and ratification of the Treaty, the Constitution of the United States contained an express prohibition of the assumption or payment of these debts by the United States, or by any State. That every officer of the United States. executive, legislative, and judicial, was thus bound by the supreme law of the land and by his oath of office to treat as utterly null any provision of any Treaty or statute in contravention of that constitutional prohibition, under penalty of impeachment or its equivalent." The Agent concluded by asking "the dismission of the claim on the ground specified in his motion." In short, he positively declared that no award unfavorable to the United States would, or could, have been accepted and paid. There are several other statements made by Mr. Fish which are open to reply, but I have considered it sufficient, for the purposes of this dispatch, to confine my comments to those which bear more immediately on the negotiation and interpretation of the Treaty. I am, &c., 33 A-II GRANVILLE. [From British Blue Book "North America," No. 9, (1872,) p. 18.] No. 48. Sir E. Thornton to Earl Granville.1 [Extract.] WASHINGTON, May 13, 1872. (Received May 26.) I paid a visit to Mr. Fish at the State Department on the 9th instant, when he read me a number of telegrams which had recently passed between himself and General Schenck relative to conversations which your Lordship had held with the latter on the subject of the indirect claims. Mr. Fish appeared to think that not only did Her Majesty's Government declare that the right to present claims for indirect damages was not granted by the Treaty, but that it further wished to compel the United States to recognize and admit that it was so. Mr. Fish added, that as his Government had always, and in the most formal manner, declared and argued the contrary, it would be a humiliation to which the United States could not submit, now to confess that the presenta tion of the indirect claims by the United States Government was made in spite of its knowledge that those claims were not comprised in the Treaty. I declared to Mr. Fish that I was convinced that, however satisfied I was that Her Majesty's Government maintained its own opinion on the subject, I did not imagine that it had any wish to force the United States Government to hold or declare the same opinion. But Mr. Fish expressed his opinion that there was now little chance of the Treaty being carried out; and he did not hesitate to ground it upon his belief that Her Majesty's Government had no desire for its continuance. It is needless to trouble your Lordship with all the arguments which I used to combat this opinion. I thought it expedient to send your Lordship a short telegram on the subject, and on the receipt of your satisfactory answer on the following day showed it to Mr. Fish, who seemed much relieved by its contents, and still more gratified when I informed him that your Lordship had communicated to General Schenck a Draft Treaty Article such as Her Majesty's Government could accept. I had the honor to receive a copy of that article during the night of the 10th instant. Not knowing whether Mr. Fish had also received it, I wrote to him early in the morning of the 11th instant, informing him that I had received the document in question, and that if it had not reached him I should be glad to show it him. He at once came to my house, said that he had also received a copy, and upon my asking him what he thought of it, he answered that it had struck him favorably. I did not see Mr. Fish again till yesterday afternoon, when he told me that he had submitted the Article to the President, who was likewise favorably impressed with its contents, and had decided that it should be communicated to the Senate for its consideration and advice. Mr. Fish added, that he had telegraphed to that effect to General Schenck on the afternoon of the 11th instant. The substance of this dispatch was received by telegraph on the 10th of May. 2 Lord Granville had informed General Schenck that Mr. Fish was under a complete mistake. We desire to maintain the Treaty; we do not desire to force the United States to acknowledge that the indirect claims do not by the Treaty come under the jurisdiction of the arbitration. But we decline to assent to any contrary understanding on our part. Mr. Fish stated that it would be submitted to-day to the Senate, and with it copies of the four notes which had passed between your Lordship and General Schenck on the subject of the indirect claims, and of some recent telegrams between the latter and Mr. Fish. I told Mr. Fish that, in my opinion, the wording of the Draft Article was very clear, and, as far as I could judge, was in exact accordance with the views which he had recently expressed to me in his conversations upon the subject; I therefore ventured to entertain a hope that, if it were acceptable, it would be accepted as it stood. Mr. Fish said that he did not himself see anything that need be changed in the substance of the Draft Article, though one or two Senators were of opinion that some of the words might be changed so as to render the meaning more clear with reference to the principle which it was intended to lay down. But he thought that this might arise from the difference of interpretation which was sometimes given in the two countries to the same words. No 225.] No. 49. General Schenck to Mr. Fish. [Extract.] LEGATION OF THE UNITED STATES, London, May 14, 1872. (Received May 27.) SIR: Since my No. 216 on the 2d instant, our correspondence by telegraph has been so constant and full, that I must refer to that mainly for a connected history of what has transpired. It would be vain to attempt to give anything like a detailed account of what passed or was said in the almost daily interviews and conversations, and sometimes much oftener than daily, and often lasting for hours at a time, which took place between Lord Granville and me. I sought, as my telegrams will show, to keep you continually, regularly, and clearly informed as to results, and with my last dispatch (No. 224) I furnished you copies of all the notes and written matter which came to me with the new Treaty Article proposed by this Government. Perhaps, however, I cannot better report or explain to you the manner and spirit with which I sought to present and urge the views of our Government in this contention about the presentation of the claims for indirect damages, than by forwarding to you the annexed copy of a paper which I read to Lord Granville on the morning of the 10th instant. By referring to my several telegrams of the 9th, you will observe that at the end of that day, it seemed as if all hope of agreement between the two Governments must be given up. Her Majesty's Government had expressed their decision against the suggestion of a new Article as a mode of settlement, and I had informed them that no note could be accepted by the President and assented to which did not embody the conditions expressed in your telegram of the 27th of April. But early next morning came the message from Lord Granville asking me to telegraph you immediately that a Cabinet would be held that day, and that he wished me to meet him afterwards. I did not wait for the conclusion of the Cabinet meeting, but sought Lord Granville almost immediately at the Foreign Office. I had made up my mind to present once more to His Lordship, as briefly and yet as clearly as I could, a summary statement of the views of my Government, and the position, as I understood it, of the question between us. I had to this end very hastily prepared myself by reducing what I had to say to him to writing, in order that there might be no misunderstanding afterward of the points advanced, or of my language. This was the paper of which I send you a copy. Lord Granville came out of Cabinet to meet me. I read it to him, and placed as much of it as was copied in his hands. I afterward furnished him a full copy. He replied at once verbally by informing me that Her Majesty's Government would probably conclude to take the initiative and propose a Treaty Article, in which case the proposal in such form as it might be agreed to offer it, would be communicated to me after the Cabinet had decided; and afterward, on that day, the proposed article was delivered to me. If my summing up that morning did not contribute towards bringing this conclusion to the correspondence and discussion, at least it did not prevent this Government from concurring in what I regarded as the only effective form of adjustment which appeared to remain to us. It is not for me to comment now on the merits of this plan of adjustment which has been placed before the Senate for consideration. Before this dispatch can reach you, that body will probably have advised the President to accede to it, or will have refused its assent. I sincerely trust that the former will be the decision arrived at. This I venture to say, not from a desire merely to adopt what seems to be perhaps the only remaining chance of preserving a Treaty so important to the peace and interests of the two countries, but because I think the principle declared in this Article for future observance between the two nations is one which if settled and maintained must be of inestimable advantage to the United States. With our chances of being generally neutral when Great Britain and other European States are belligerent, the benefits of the rule are to be principally and oftenest ours. Our continental position, our extended sea-coast, our numerous ports, the enterprising character of our citizens, and the difficulty of restraining their spirit of adventure, surely make the rule that would thus be established more val uable and more favorable to the United States than to perhaps any other country. All this we secure in exchange for the surrender of certain claims which we were pressing before the Arbitrators at Geneva, not with a view to pecuniary compensation, but only because they were a portion of the grounds of disagreement between us and Great Britain, upon which that Tribunal was empowered, for the sake of perfect peace, to make an award, while we ourselves did not hesitate to admit that it must be to our gain to have the decision against us. I have the honor to be, sir, your obedient servant, [Inclosure in No. 49.] Summary of views of the United States on the indirect claims read by General Schenck to Earl Granville on May 10, 1872. General Schenck, in an interview with Lord Granville, summed up what he regarded as the present position of the question between the two Governments in the following remarks, which he had reduced to writing to prevent misunderstanding of his views or language: When we parted, after our long conversation yesterday, your last words to me were these: "I carefully avoid anything that may be construed into menace, but in conse quence of the views and information you have presented to me yesterday and to-day I take an unfavorable view of the chances of settlement." Those words I felt it my |