"the agreement turns out to be no agreement, and falls to the ground." The answer to this is simply that "agreement" and "treaty" are not exactly convertible terms; that an agreement, resulting from a thorough mutual understanding, should precede the treaty; and that if such a doctrine as that propounded above were to be admitted, there would be no certainty, no security in international contracts of any kind, and that the signing of treaties would degenerate into a sort of "handicap" transaction, in which either party is at liberty to cry off, if he does not like the weights, and that without paying forfeit.

Upon the whole, we can but agree with the Americans, that, however exaggerated and intolerable their "Case" may prove to be, the function of deciding upon it rests with the Court of Arbitration, who are the sole judges of their jurisdiction under the articles of the Treaty relating to the matters referred to them. But our Government, ignoring this principle, after much doubt and vacillation came at length to the resolve of sending in a "Counter-case" to the "Case" of the United States, in which they decline treating in any way with the indirect claims, and which document they accompanied by a note, addressed to each of the arbitrators, in which they "expressly and formally intimate and certify" that this Counter-case is presented "without prejudice" to the position assumed by Her Majesty's Government, and under "express reservation of all Her Majesty's rights, in the event of a difference continuing to exist between the high

H

contracting parties as to the scope and intention of the reference to arbitration ;" and add that they will, if necessary, communicate further on the subject, at or before the time limited by the 5th Article of the Treaty." It was well understood that our Government, in so acting, contemplated withdrawing altogether from the arbitration in case the claims. for indirect losses were not withdrawn before the 15th June, being the day fixed for the re-assembling of the Court of Arbitration; but in pursuance of their usual hesitating and uncertain policy they, "out of motives of delicacy," as they allege, did not communicate anything to that distinct effect to the arbitrators: and the consequence may yet be another misunderstanding, a misunderstanding with the arbitrating powers,-leading to confusion worse confounded.

For, though Lord Granville seems to forget it, there are other parties besides the actual litigants who are entitled to honourable consideration in this proceeding, but who, unfortunately, have been by implication subjected to unexampled indignity through the irregular discussions which have been permitted to occur-namely, the Sovereign States who, at the joint request of the contending parties consented to arbitrate in the matter, and who have appointed distinguished jurists on their behalf towards that end. In matters of litigation before an ordinary tribunal the discussion of a case "out of court" is justly visited and resented as an act of "contempt." Sovereign states cannot commit one another to "durance vile" for such a cause;

neither can a tribunal of arbitration composed of sovereign states enforce its judgments, in the way of civil courts of judicature, against recusant parties. But there is still some respect due to the good offices of mediating states, the denial of which they are entitled to resent under penalties only limited by their own discretion, and their power to enforce them.

Putting it in the mildest form, it would be entirely a matter of option with the Italian, Brazilian and Swiss Governments, in the case of our ultimate repudiation of their functions as arbitrators, whether they should, or should not, treat the occurrence as one calling for the interruption of friendly relations. Moreover, as such a breach would destroy the whole Treaty, the Emperor of Germany might equally, in such case, be at liberty to treat as he thought proper the breach of good faith incurrred in the withdrawal from his arbitration of that troublesome question of the North-Western Boundary, which has been referred to him. We may, perhaps, have good reason to hope that there are no combinations of policy which might induce the several Foreign States referred to thus to resent our withdrawal from our treaty obligations, but the eventuality is one of such serious character and import, that we ought not to leave it possible at the discretion of others. As to the action open to the United States in such a contingency, it might assume the form of war. There would be little probability, perhaps, of such a result immediately occurring in the present case; but the option would be in the hands of our

opponents, and might be held in reserve till the arrival of any favouring occasion; and in the meantime, perhaps to all time, we should stand before the world branded with the charge of bad faith, which ranks amongst the most odious crimes known to nations.

With such reflections on our mind, we approach the consideration of the merits of this lamentable controversy, and the negociations of the Treaty of Washington generally, as set forth in the official documents before us, with no very cheerful or confident prepossessions. Restricting ourselves, still, to the Alabama Claims, it will be observed, in reference to the protocols, that the American Commissioners made no suggestion, expressed or implied, that, in agreeing to the proposal of the British Commissioners for an arbitration, accompanied by the concessions made by the latter, including the "apology" and the acceptance of the "new rules," in lieu of the payment of a lump sum, as they had at first proposed, they looked upon the modification of the proceedings aimed at as in any way militating against their "amicable" character; and it may be added, that if they had given any hint of the kind the British Commissioners would probably have had the prudence and the firmness at once to refuse completing the transaction. Yet in their "Case" the American Government has the coolness to assert that "the British Commissioners declined to make the 'amicable settlement' which was proposed on the part of the United States," and that thereupon followed other negociations which led to "an arrange

ment" which they would have the world to understand was distinct from all idea of amicableness. The preamble to the Treaty speaks of it as being framed as the means to an amicable settlement ;" and it is remarkable, and to be regretted, that neither of the Governments in citing the Treaty in their “Cases,” thought it of importance to quote this preamble.

CHARGE OF UNFRIENDLINESS AGAINST THE BRITISH

GOVERNMENT.

BUT, alas!—too certain it is that whatever friendly and generous sentiments may have animated the two Governments, as represented by their Commissioners on the signing of the Treaty in May, 1871, very little of these feelings long survived on the side of our opponents. The American Government open their "Case" by declaring that "they purpose to show that from the outbreak of the insurrection of the Southern States of the United States there was on the part of the British Government a studied unfriendliness, or fixed predisposition adverse to the United States, which furnished a constant motive for the several acts of omission and commission hereinafter complained of as inconsistent with its duty as a neutral.” Not to comment on the infinitely bad taste of such a remark, it might, in strict reason, be asked whether under the provisions of the Treaty it could properly be introduced in any proceedings based upon it. The claims "growing out" of the acts of the escaped cruisers is the only matter referred to the Court of Arbitration, the first of which escaped in the spring