mission and embodied in the treaty. This was the first point. The second was the fact that the Government of the United States had made no protest against the statements in Parliament as to the true interpretation of the treaty, though, as was often pointed out, General Schenck was present at the debate in the House of Lords on the 12th of June.1 As to the expression "amicable settlement," the proper interpretation of it seems to be that it referred, as Mr. Fish used it, to a direct settlement by the commissioners. Mr. Fish said that "in the hope of an amicable settlement no estimate was made of the indirect losses, without prejudice, however, to the right to indemnification on their account in the event of no such settlement being made." In their reply to this statement, the British commissioners disavowed any responsibility on the part of Great Britain for the acts of the Alabama and the other vessels, and made an offer of arbitration. The American commissioners "expressed their regret at this decision of the British commissioners." If the "amicable settlement" desired by Mr. Fish included arbitration, there certainly was little meaning in the American commissioners' expression of regret when the British commissioners proposed that mode of settlement. It seems that Mr. Fish used the term to describe a direct settlement, at least of the question of liability, as distinguished from contentious litigation before arbitrators. To the failure of the United States to protest against what was said in Parliament as to the true interpretation of the treaty little importance can be attached. The opinion expressed by Lord Granville and the Marquis of Ripon in the House of Lords was directly opposed by Lord Cairns, than whom there was no higher authority in matters of legal construction. And if questions arose as to the construction of the treaty, was not the tribunal of arbitration the proper authority to decide them? Was not the tribunal competent to determine whether claims were or were not within its jurisdiction? It has been seen that this question arose under the seventh article of the Jay Treaty, and that it was then answered in the affirmative, though, in the controversy which arose concerning the sixth article of that treaty, it appears that the United States did not admit that the power of arbitrators to derermine their own jurisdiction was unlimited. It is highly probable, and indeed some of the discussions Papers Relating to the Treaty of Washington, II. 427. clearly show, that as the indirect claims were traced by Mr. Sumner to the recognition of belligerency, many persons supposed that the disavowal of that pretension by the United States signified the withdrawal of the claims. But it is obvious that the indirectness of the indirect claims was diminished rather than increased by treating them as growing out of the acts of the Confederate cruisers, whose depredations were either the immediate or the proximate cause of all the injuries of which the United States complained. Lord Tenterden's The same disposition of sincere amity that led to the conclusion of the treaty saved it from failure in the controversy that arose as to its meaning. In April, when the time arrived for the filing of the Counter Cases, Lord Tenterden met Mr. Davis at Geneva with unreserve and in a spirit of conciliation. Under instructions from his government he lodged with the secretary of the tribunal a notice to the individual arbitrators of the action taken by Her Majesty's government on the 3d of February, in order that the act of filing the British Counter Case should not be deemed a waiver of that action; but he did not conceal his own strong desire to save the treaty. He said that unless the claim for the prolongation of the war was out of the way no ministry in England could go on with the arbitration. Various expedients were discussed, and Lord Tenterden finally suggested that the arbitrators might come together of their own motion before the 15th of June, for the avowed purpose of relieving the two governments by the consideration in advance of argument-subject to the right of either party to argue subsequently-of the liability of Great Britain for the indirect. damages. To this suggestion Mr. Davis did not at the time reply, though he regarded it with favor.' Proposals by Meanwhile the two governments were endeavoring to reach a final solution of the controversy. In a telegram of March 1, 1872, Mr. Fish instructed General Schenck to sound Lord Granville as to the willingness of the British Government to withdraw their construction of the treaty of 1846 as to the San Juan water boundary, if the United States would withdraw their construction of the treaty of arbitration as to the indirect claims. This proposition Lord Granville declined. On the 27th of April Mr. Davis to Mr. Fish, April 17, 1872. (MS.) 2 MSS. Dept. of State 5627-41 Mr. Fish, after a conversation with Sir Edward Thornton, telegraphed to General Schenck that, while the United States had not asked for pecuniary damages on account of the indirect losses, it was deemed essential that the question be decided whether claims of that nature could in the future be advanced against the United States. He said that his conversation with Sir Edward Thornton had induced the belief that the British Government might make a proposal to the effect that Great Britain would not advance such claims against the United States in the future, and that in consideration of such a stipulation the United States should not press for damages on account of the indirect claims at Geneva. Mr. Fish said that the President would assent to such a proposal.1 Adjournment of Tribunal Requested. Negotiations were proceeding on this line when the time arrived for the reassembling of the tribunal of arbitration. Baron d'Itajubá was in doubt about going to Geneva, unless requested to do so.2 Mr. Fish instructed Mr. Davis to go to Geneva and, if necessary, to give notice to the arbitrators that he expected to be there; and notice-was accordingly sent to each arbitrator that the United States would be present at Geneva on the 15th of June, by their agent and counsel, and would be prepared to present their argument and to submit themselves to the further directions of the tribunal under the treaty. On that day Mr. Davis appeared before the arbitrators and delivered the American argument. Lord Tenterden also appeared, but instead of delivering the British argument he requested the tribunal to grant an adjournment for a period of eight months in order to enable the two governments to conclude and ratify a supplementary convention. But, fortunately, a solution of the difficulty was found on the line of the suggestion made by Lord Tenterden in the preceding April. It has heretofore been stated that the diffiMr. Adams's Views. culty of the Government of the United States in dealing with the indirect claims was not due to any faith in their soundness, but to the difficulty in getting rid of them. In an instruction to General Schenck of April 23, 1872, Mr. Fish said that the United States "would at any time willingly have waived the indirect claims for any equivalent, or in connection with any settlement, had they 1 Papers Relating to the Treaty of Washington, II. 477. been asked so to do during the negotiation of the treaty." Before Mr. Adams sailed for England a member of the Cabinet had a conversation with him in Boston, in which Mr. Adams expressed the opinion that, as a question of public law, a state was not liable in damages for injuries, such as those enumerated in the American Case, resulting indirectly from a failure to observe neutral obligations; and Mr. Fish suggested that Mr. Adams might find occasion, while in London, to interchange opinions on this point with Sir Alexander Cockburn or some member of the government, and that the assurance of an agreement of the opinions of the American and British arbitrators as to the question of liability ought to remove the apprehensions of the British Government on the subject of a possible award. Negotiations at When the arbitrators reassembled at Geneva, Mr. Adams, in view of the fact that the two governments were endeavoring to dispose of the indirect claims by negotiation, sought to secure the assent of the British agent to the consideration and determination of the several questions of liability affecting the direct claims, leaving the question of the indirect claims for further negotiation. On the 15th of June Mr. Davis, at the request of Mr. Adams, had an interview with Lord Tenterden on this proposal. His Lordship, who had been instructed to secure an adjournment or to retire, expressed the individual opinion that the course suggested by Mr. Adams would not be entertained by the ministry; but he added: "What does Mr. Adams want? If he means business he must go further. He must have the indirect claims rejected." Lord Tenterden then explained that he thought it probable that if the neutral arbitrators would be willing to say that Great Britain could not be held responsible for the indirect claims, the manifestation of such an opinion would induce the United States to instruct their agent to say that they did not desire to have those claims further considered by the tribunal. He said there was a strong feeling in England that the United States expected that the arbitrators would, while specifically rejecting this class of claims, let them have weight when considering other claims, and that some instructions would be desired to answer that objection. Mr. Davis, who had already been trying to induce the arbitrators to pass upon the indirect claims MSS. Dept. of State. pending the motion for an adjournment, at once saw Mr. Waite and Mr. Evarts (Mr. Cushing had gone to bed) and told them what had taken place; and about midnight he had another interview with Lord Tenterden, who came to say that he had seen Sir Roundell Palmer, and that the latter had made a minute of three points which would have to be borne in mind by the arbitrators in any sach step as had been suggested. These points Lord Tenterden was not authorized to communicate officially, but he read them to Mr. Davis, who wrote them down from his dictation. They were as follows: "1. That the arbitrators can not give any judgment on the indirect claims, as not being submitted to them by both parties; and that therefore any expression of opinion upon them at the present time would be simply extrajudicial. "2. That the British Government having expressly refused to allow the indirect claims to be adjudicated upon by the tribunal, it would not be consistent with the duty of the British arbitrator to take any part in any expression of opinion on the subject. 3. That any expression on the subject would not be binding upon either of the two governments unless assented to by both." Early on the morning of June 16 Mr. Davis laid these points before the counsel of the United States with some written comments, in which counsel concurred. It was agreed that Mr. Evarts should see Sir Roundell Palmer and suggest that the third point contained everything necessary for the protection of either government, and that the statement of the points of disagreement be omitted. Mr. Evarts saw Sir Roundell in the evening, and he was understood to concur in the opinion that the third point was all that need stand. As soon as counsel had completed their examination of Sir Roundell's points Mr. Evarts and Mr. Davis called upon Mr. Adams and laid the facts before him. Mr. Adams concurred in the opinion expressed by Mr. Davis that an adjournment such as was asked for would end in a rupture, and declared that he would do all in his power to prevent it. "He said," as reported by Mr. Davis in a contemporaneous memorandum, "that he had had some conversation with Mr. Fish before leaving Washington, in which Mr. Fish had told him that he was willing to have the indirect claims decidedly adversely, and that he had said to Mr. Fish that in his judgment they ought to be so disposed of; that Mr. Fish MSS. Dept. of State. |