time in the intended arbitration. And you add that it will of course be understood by the Tribunal that while Her Majesty's Government would consider the Tribunal to have full power to proceed at the end of the period of adjournment, if the difference between the High Contracting Parties should then have been removed, notwithstanding the non-delivery on that day of the argument by the British Agent, they will continue, while requesting this adjournment, to reserve all Her Majesty's rights in the event of an agreement being finally arrived at, in the same manner as was expressed in the note which accompanied the British Counter Case. This note, my Lord, in its full text, I transmitted this morning to my Government at Washington, where I have no doubt it will be received and considered in the friendly spirit in which it is intended, and as a sincere effort yet to preserve the Treaty between the two countries; and I will not fail to communicate to you at the earliest moment the answer which may come from Mr. Fish. I have the honor to be, with the highest consideration, my Lord, Your Lordship's most obedient servant, ROBT. C. SCHENCK. [Inclosure 6 in No. 104.] Earl Granville to General Schenck. FOREIGN OFFICE, June 11, 1872. SIR: It may be useful that I should briefly recapitulate the negotiations which have passed with respect to the supplementary Treaty Article in order that there may be a distinct and connected record of them. On the 10th of May Her Majesty's Government, although they considered that the proposal of the form of Article would come more conveniently from the United States Government, proposed the draught Article as originally forwarded to you on that day. This draught Article was substantially the same as the draught note, the interchange of which had formed the subject of previous correspondence. On the 26th of May Her Majesty's Government learned that the Senate had recommended the President to negotiate a convention on the basis of this draught Article, with the substitution of two other paragraphs for the fourth and fifth paragraphs of the English draught, as follows: "Whereas the Government of Her Britannic Majesty has contended in the recent correspondence with the Government of the United States as follows, namely: That such indirect claims as those for the national losses stated in the Case presented on the part of the Government of the United States to the Tribunal of Arbitration at Geneva, to have been sustained by the loss in the transfer of the American commercial marine to the British flag; the enhanced payments of insurance; the prolongation of the war, and the addition of a large sum to the cost of the war and the suppression of the rebellion;' firstly, were not included, in fact, in the Treaty of Washington; and further, and secondly, should not be admitted in principle as growing out of the acts committed by particular vessels, alleged to have been enabled to commit depredations upon the shipping of a belligerent by reason of such a want of due diligence in the performance of neutral obligations as that which is imputed by the United States to Great Britain; and whereas the Government of the United States has contended that the said claims were included in the Treaty; and whereas both Governments adopt for the future the principle that claims for remote or indirect losses should not be admitted as the result of the failure to observe neutral obligations, so far as to declare that it will hereafter guide the conduct of both Governments in their relations with each other: Now, therefore, in consideration thereof, the President of the United States, by and with the advice and consent of the Senate thereof, consents that he will make no claim on the part of the United States in respect of indirect losses, as aforesaid, before the Tribunal of Arbitration at Geneva." Her Majesty's Government objected, as I informed you in my letter of the 27th of May, to the definition as therein expressed of the principle which both Governments are prepared to adopt for the future, as too vague, and proposed the substitution of the words, "of a like nature," for the words, "for remote or indirect losses," and the substitution of the words, "such want of due diligence on the part of a neutral," for the words, "the failure to observe neutral obligations." On the 29th of May you communicated to me the substance of a telegraphic dispatch from Mr. Fish, stating that the Government of the United States declined to agree to these alterations, as the establishment of the principle embodied in the Article as assented to by the Senate had been its object in adhering to that Article. You had previously explained to me, on the preceding day, that what you considered that the Government of the United States desired was the establishment of a general principle to be applied to cases as they might arise, and not limited to particular cases or circumstances which may or may not ever occur. Her Majesty's Government did not pretend that the words suggested, by themselves, were incapable of improvement, and made another proposal to you on the 30th of May, which they trusted would meet the views of both Governments, as follows: "Whereas the Government of Her Britannic Majesty has contended in the recent correspondence with the Government of the United States as follows, namely: "That such indirect claims as those for the national losses stated in the Case presented on the part of the Government of the United States to the Tribunal of Arbitration at Geneva, to have been sustained by 'the loss in the transfer of the American commercial marine to the British flag; the enhanced payments of insurance; the prolongation of the war; and the addition of a large sum to the cost of the war and the suppression of the rebellion;' firstly, were not included in fact in the Treaty of Washington; and further, and secondly, should not be admitted in principle as growing out of the acts committed by particular vessels alleged to have been enabled to commit depredations upon the shipping of a belligerent by reason of such a want of due diligence in the performance of neutral obligations as that which is imputed by the United States to Great Britain; "And whereas the Government of the United States has contended that the said claims were included in the Treaty; "And whereas both Governments adopt for the future the principle that claims against neutrals for remote and indirect losses should not be admitted as resulting from the acts of belligerents, which such belligerents may have been enabled to commit by reason of a want of due diligence on the part of a neutral in the performance of neutral obligations, so far as to declare that this principle will hereafter guide the conduct of both Governments in their relations with each other: "Now, therefore, in consideration thereof, the President of the United States, by and with the advice and consent of the Senate thereof, consents that he will make no claim on the part of the United States, before the Tribunal of Arbitration at Geneva, in respect of the several classes of indirect losses herein before enumerated." On the 31st of May, Her Majesty's Government were informed by Sir E. Thornton that Mr. Fish acknowledged that the Article recommended by the Senate was capable of improvement, and thought that the one proposed by Her Majesty's Government might also be improved, and believed that, with sufficient time, an agreement could be come to satisfactory to both countries, which have the same object. On the same night you communicated to me a telegraphic message from Mr. Fish, stating that “it is not believed that there is any such difference of object between the two Governments in the definition and limitation which each desires to place upon the liability of a neutral as to prevent an agreement on the language in which to express it, if time be allowed for an exchange of views by some other means than the telegraph," and that it appeared to the President that the form of Article last proposed by Her Majesty's Government left a large class of very probable cases unprovided for, and that he held (with reference to an observation in my letter to you of the 28th of May) "that the results of bad faith or willful misconduct toward either of the two governments would never be the subject of pecuniary compensation." Her Majesty's Government, in their earnest desire to meet the views of the Government of the United States, thereupon made the proposal contained in my letter to you of the 5th instant, the effect of which is to leave the Article as proposed by the Senate, with the addition merely of some few words of definition, which, if the intention of the Senate was that which Her Majesty's Government have been willing to believe, (though they think it insufficiently expressed,) do not in any way affect it in principle, viz: The remote or indirect losses mentioned in this agreement, being losses arising remotely or indirectly, and not directly, from acts of belligerents," and of a declaration as to acts of willful violation of international duties, which might either be inserted in the Article or made at the time of the exchange of ratifications. Having learnt, on the 7th instant, that the Government of the United States entertained objections to the use of the expression "acts of belligerents," Her Majesty's Government informed you that they were willing to change it to "acts of war." Her Majesty's Government believe, therefore, that they have met all the objections, so far as they have been informed of them, which have been from time to time advanced to the suggestions which they have made, and that this recapitulation of the negotiation shows that unless Her Majesty's Government have erred in their view of the probable intention of the Senate, the two Governments are substantially agreed, or that, if there is any difference between them in principle, it is reduced to the smallest proportions. On the other hand, the objections which Her Majesty's Government entertain and have expressed to the language of the amendments made by the Senate, are founded. upon reasons to which they attach the greatest importance, though they think it possible that the Senate did not intend to use that language in the sense which, according to the view of Her Majesty's Government, the words properly bear. The Government of the United States have stated, in the telegraphic message from Mr. Fish to which I have already referred, that there are some cases not provided for in the words suggested by Her Majesty's Government on the 30th of May. If the Government of the United States are of opinion that these cases are not covered by the last proposed form of Article, and will state what are the cases in question, Her Majesty's Government cannot but think that the two Governments might probably agree upon a form of words which would meet them, without being open to the objections which they have felt to the wording of the Article as proposed by the Senate. Her Majesty's Government have never put forward their words as an ultimatum, and they will be willing to consider, at the proper time, other words, if an adjournment is agreed upon. I have much pleasure in taking advantage of the present occasion to request you to convey to the Government of the United States the appreciation by Her Majesty's Government of the frank and friendly declaration contained in your letter to me of the 6th instant, respecting the last paragraph of the draught Article. Her Majesty's Government had never supposed that the Government of the United States had differed from Her Majesty's Government in the sense attached to that portion of the Article, but they look upon the declaration made in your letter as an additional proof of the anxiety, which they are confident is shared by both Governments, of bringing the negotiation to an honorable and successful issue. I have the honor to be, with the highest consideration, sir, your most obedient, humble servant, GRANVILLE. No. 105. Mr. Fish to General Schenck. [Telegram.] DEPARTMENT OF STATE, Telegraph and write to Davis, Hotel Beau Rivage, Geneva, as follows: See my telegrams to Schenck of second and ninth June. If arguments are filed in good faith, without offensive notice, we will assent to their motion for adjournment. FISH. [From British Blue Book "North America," No. 10, (1872,) p. 2.] No. 106. Earl Granville to Lord Tenterden. FOREIGN OFFICE, June 12, 1872. MY LORD: Should the Arbitrators inquire for how long a period the adjournment requested in the note which you are instructed in my other dispatch of this day's date to present to them, is desired, you should state that Her Majesty's Government understand that in order to afford time for the consideration of a supplementary convention by the Senate in the session commencing in December, it would be requisite that the adjournment should be for a period of eight months, with power for the Arbitrators to meet at any earlier date, upon being convened for that purpose by the secretary, on the joint request in writing of the Agents of the two Governments. I am, &c., GRANVILLE. [From British Blue Book "North America," No. 10, (1872,) p. 2.] No. 107. Earl Granville to Lord Tenterden. FOREIGN OFFICE, June 12, 1872. MY LORD: Sir Roundell Palmer having consented, at the request of Her Majesty's Government, to attend the meeting of the Tribunal of Arbitration on the 15th instant as Her Majesty's Counsel, I have to instruct you to be guided by his advice in all your proceedings. I am, &c., GRANVILLE, [From British Blue Book "North America," No. 10, (1872,) p. 2.] No. 108. Earl Granville to Lord Tenterden. FOREIGN OFFICE, June 12, 1872. MY LORD: If any circumstances not provided for should occur while you are endeavoring to obtain an adjournment according to your instructions, you will telegraph the particulars to me and ask for instructions. I am, &c., GRANVILLE. [From British Blue Book "North America," No. 10, (1872,) p. 2.] No. 109. Lord Tenterden to Earl Granville. GENEVA, June 14, 1872. (Received June 21.) MY LORD: I have the honor to report that I arrived here this morning, in company with the Lord Chief Justice, Sir R. Palmer, Mr. Sanderson, Mr. Lee Hamilton, and Mr. Langley. Count Sclopis, Baron Itajuba, Mr. Adams, and Mr. Bancroft Davis, together with the United States Counsel, Mr. Evarts, Mr. Cushing, and Mr. Waite, are here, and M. Staempfli is expected to arrive this evening or to-morrow morning. The meeting of the Tribunal has been fixed for 12 o'clock to-morrow, the 15th instant, in pursuance of the resolution adopted on the 15th of December last. I am, &c., TENTERDEN. No. 110. Mr. Davis to Mr. Fish: [Telegram.] GENEVA, June 15, 1872. (Received at 6.30 p. m.) Our argument presented. Tenterden presents note in form almost identical with Granville's note of 10th to Schenck, of which you have copy, and says he is instructed to withhold British argument. Tribunal adjourns till Monday for consultation on our side. DAVIS. No. 111. Mr. Fish to Mr. Davis. [Telegram.] DEPARTMENT OF STATE, If there is to be an adjournment, let it be not beyond first January, so as to allow time for a Treaty, if one be agreed upon, to be submitted to the Senate in December, and thereafter for the necessary legislation respecting fisheries, assessors, &c. The President sees no objection to such adjournment, if asked for by the defendants, and nothing objectionable shall have been presented. You and Counsel will understand, and, if necessary, can say, that there can be no extra session of the Senate called; and there will be no extra session in March. Tribunal will this morning make declaration reciting British motion for adjournment, and reasons given for making it, namely, the differences between the Governments as to competency of Tribunal to determine the three classes of indirect claims, and then continues: The Arbitrators do not propose to express or imply any opinion upon the point thus in difference between the two Governments as to the interpretation or effect of the Treaty, but it seems to them obvious that the substantial object of the adjournment must be to give the two Governments an opportunity of determining whether the claims in question shall or shall not be submitted to the decision of the Arbitrators, and that any difference between the two Governments on this point may make the adjournment unproductive of any useful effect, and after a delay of many months, during which both nations may be kept in a state of painful suspense, may end in a result which it is to be presumed both Governments would equally deplore, that of making this arbitration wholly abortive. This being so, 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, they have arrived, indi 37 A-II |