General Schenck informed me that he agreed with me in my construction of what had passed, and I have submitted to him this report of our conversation. I read this in the House of Lords last night. FOREIGN OFFICE, June 4, 1872. No. 89. General Schenck to Mr. Fish. [Telegram.] LONDON, June 5, 1872. (Received at 10.45 a. m.) Opposition members in Parliament have strange and unworthy suspicions and fears that the last clause of the Article, although in the language of their own Government, is not explicit enough to prevent the indirect claims from being again brought forward. Might we not offer that if this Government will accept the Senate language for the expression of the rule, we will agree to the last clause of their form, as communicated to you in my telegram of the 31st May, adding thereto the words "but will thereupon abandon those several enumerated claims as a cause of difference between the two countries to be considered by the Arbitrators in making their award.” SCHENCK. No. 90. Mr. Fish to General Schenck. [Telegram.] WASHINGTON, June 5, 1872. We cannot agree to the suggestion in your telegram of this date. This Government deals with the British Government, and not with opposition members of Parliament. If that Government adopts the unworthy suspicions and fears referred to in your telegram, and advances them as reasons for modifying the proposed Article, or suggests that this Government will not in good faith act upon the agreement contained therein, all further negotiations must cease at once. If it does not adopt or entertain those suspicions, there is no reason for proposing to alter the language which was proposed by itself, has been accepted by us, and which is sufficiently explicit. You may say that this Government regards the new rule contained in the proposed Article as the consideration, and will accept it as a final settlement of the three classes of the indirect claims put forth in our Case, to which they objected. It is useless to expect that any change can be made in the Article as agreed to by the Senate. A treaty in the words which the Senate had agreed upon could be ratified by that body without debate and in a few minutes. Any change, however immaterial, would involve discussion and debate, and in the crowded state of their business would inevitably lead to the defeat of the Treaty. We think, also, that this Government has made a large concession for the sake of maintaining the important principles involved in the Treaty. It can make no more. No. 91. General Schenck to Mr. Fish. FISH. [Telegram.-Extract.] LONDON, June 6, 1872. (Received 5 p. m.) Your telegram of yesterday received this morning. * You will do me the justice to believe I have had no exchange of views with anybody here but the Government, through the proper channel. I must also do justice to them; they have not adopted or sympathized with the fears and suspicions of others in regard to the last clause of proposed Article, but defended it as sufficient. I, of course, would have resented any intimation from them that my Government could possibly act in bad faith. * I knew your earnest desire to save the Treaty. I knew that, for the consideration expressed in the rule as amended by the Senate, the Gov ernment of the United States intended to abandon altogether the three classes of indirect claims, and although I knew the difficulty of opening the main question in the Senate, I thought they might at once agree to show their friendly and sincere purpose by expressing that intention. even more distinctly than had been asked or needed, if by so doing their own expression of the rule could be secured. Late last night, I received from Lord Granville, after a long Cabinet session, three notes, which I send, but to which I have not replied. I will see him immediately, and communicate your views as to the uselessness of expecting change in the Senate Article, and will probably telegraph you again to-day. The first note is as follows: [Earl Granville to General Schenck.] SIR: I laid before the Cabinet the telegraphic message from Mr. Fish, which you communicated to me on the 3d instant. That message is only in answer to a portion of the objections raised by Her Majesty's Government to the alterations in the draught Article proposed by the Senate, and does not notice the other points to which I called your attention in my letter of the 28th ultimo, and which were intended to show that the effect of those alterations is to transfer the application of the adjectives “indirect" and "remote" from one subject with reference to which they have been used in the recent correspondence, viz, claims made as resulting "from the acts committed" by certain vessels, to a different subject, viz, those made as resulting from "the failure to observe neutral obligations." It is evident that a loss which is direct and immediate with reference to the former subject may be indirect and remote with reference to the latter, and this appears to Her Majesty's Government to be actually the case with respect to the claims which it is assumed the Government of the United States still intend to make before the Arbitrators. The Government of the United States must see that it is impossible for Her Majesty's Government to authorize Her Majesty's Minister at Washington to sign a treaty, the words of which appear to Her Majesty's Government to say one thing upon a mere understanding to the contrary effect. The second note is as follows: [Earl Granville to General Schenck.] SIR: There is a difference of opinion between the Government of the United States and Her Majesty's Government as to the necessity of presenting the written or printed arguments on the 15th of June. I beg to suggest to you that the fifth Article is directory; it speaks of something which it shall be the duty of the Agents of the two Governments to do within a certain time; it does not say that the Treaty is to lapse if this duty is neglected or not performed by the Agents or Agent of both Governments, or of either of them. It would hardly be suggested that the Treaty would lapse if one only of the two Agents omitted to lodge a written or printed argument, such as this Article contemplates, yet there is no more reason for saying that such a written or printed argument to be then delivered is a sine qua non of the Treaty if both Agents omit it than if only one does so. The Article is in its nature one of procedure only for the mutual information (it may be) of the parties, and entirely for the assistance of the Arbitrators, but mainly for the benefit and advantage of the parties themselves, who, in such a matter, may or may not choose to avail themselves of it, nor would any practical inconvenience or disadvantage arise to either party (in case the arbitration proceed) from an agreement not to present such arguments until a later date, the Arbitrators having full power at any later date to admit such written or oral arguments as they may think fit. Her Majesty's Government would make no difficulty as to a suitable arrangement for the presentation of the arguments if a Convention were signed by Mr. Fish and Sir Edward Thornton and ratified by the Senate, although there was not time for the ratifications to be exchanged in London previously to the 15th of June. Third note thus: [Earl Granville to General Schenck.] SIR: I have to state to you that with the view of obviating the difficulty connected with the meeting of the Arbitrators at Geneva on the 15th instant, and the presentation of the written or printed argument under the fifth Article of the Treaty on that day, Her Majesty's Government are still ready either to agree in an application to the Arbitrators on the 15th to adjourn at once without the presentation of the argument of either Government, or to conclude a new arrangement with the treaty-making power of the United States for the enlargement of the time; or, instead of the amendments to the Treaty Article which Her Majesty's Government last proposed, they are willing to conclude it with the following additions: First, to insert after the paragraph, as altered by the Senate, the words, "the remote or indirect losses mentioned in this agreement, being losses arising remotely or indirectly from, and not directly from, acts of belligerents." Second, to insert after this paragraph another paragraph: "further, the stipulations of this Convention as to future conduct have no reference to acts of intentional ill faith or willful violation of international duties." The objections to negotiating on a proposition which involves the idea that either country may be guilty of intentional ill faith or willful violation of its international duties might be met by such a declaration as that proposed in the second of these additions being inserted in the Treaty Article, or, if the United States should prefer it, by an interchange of notes, approved by the Senate at the time of ratification. SCHENCK. No. 92. General Schenck to Mr. Fish. [Telegram.] LONDON, June 6, 1872. (Received 7.20 p. m.) Since my former telegram to-day I have seen Lord Granville and stated to him that it is useless to expect that any change can be made in the Article as agreed to by the Senate, and I communicated to him what you authorized me to say, that our Government would regard the new rule as consideration for and settlement of the three classes of in direct claims. I thought it best to put that part of my communication in formal writing and have handed him a note as follows: [General Schenck to Earl Granville.] MY LORD: In the conversation we had yesterday and which was resumed this morning, you stated to me that Her Majesty's Government have always thought the language proposed by them in the draught Article as it stands sufficient for the purpose of removing and putting an end to all demand on the part of the United States in respect to those indirect claims which they put forth in their Case at Geneva, and to the admissibility of which Her Majesty's Government have objected, but that there were those who doubted whether the terms used were explicit enough to make that perfectly clear and to prevent those same claims from being put forward again. I concurredd with you in your view as to the sufficiency of the language used in that clause of the proposed Article, and which the Government of the United States had accepted, and I repelled the idea that anybody should think it possible that the Government of the United States, if they should yield those claims for a consideration in a settlement be tween the two countries, would seek to bring them up in the future or would insist that they were still before the Arbitrators for their consideration. I am now authorized, in a telegraphic dispatch received to-day from Mr. Fish, to say that the Government of the United States regards the new rule contained in the proposed Article as the consideration for and to be accepted as a final settlement of the three classes of the indirect claims put forth in the Case of the United States, to which the Government of Great Britain have objected. SCHENCK. No. 93. Mr. Fish to General Schenck. [Telegram.-Extract.] WASHINGTON, June 7, 1872. Your telegrams of yesterday received last evening. I have been quite ill and unable to reply sooner or fuller. The first criticism on the language of the Senate amendment to the proposed Article is regarded as hypercritical and strained. It is so regarded here generally, and a discussion upon it in the Senate or in the press would be inexpedient and would not tend to advance a settlement. The Senate is very impatient for adjournment; and the Senate, the public, and the press are impatient over the delays, and what they regard as either captious or dilatory objections and proposals to amend or explain what has been intended and proposed in the most perfect good faith. The new Article can be ratified, as I said in a recent telegam; but if amendments be proposed or explanatory notes requiring the Senate's approval are submitted, it will be impossible to obtain ratification. To insist upon any such course is to defeat the Article. This Government cannot adopt the argument of Lord Granville respecting the putting in of the arguments of both Governments on the 15th. We think the Treaty requires it to be done, and that the requirements can be dispensed with only by a treaty. The Senate will adjourn on Monday. I see no possibility of an agreement upon anything else than the Article as agreed to by the Senate. FISH. No. 94. General Schenck to Mr. Fish. [Telegram.] LONDON, June 7, 1872. (Received 7 p. m.) I have just received the following from Lord Granville: [Earl Granville to General Schenck.] SIR: In a telegram which I have this morning received from Sir Edward Thornton he remarks with reference to the first of the two passages which, in my letter to you of the 5th instant, I stated that Her Majesty's Government proposed to insert in the Article, in lieu of the amendments last proposed by them, that Mr. Fish had frequently, in conversation with him, objected to the use of the word "belligerent," and wishes that indirect claims arising out of acts committed by persons other than recognized belligerents, as well as belligerents, should be agreed to be not admissible for the future. If Mr. Fish should still entertain the same opinion, Her Majesty's Government would be quite content that the passage in question should run thus: "The remote or indirect losses mentioned in this agreement, being losses arising remotely or indirectly, and not directly from acts of war.' I only add that I have given Lord Granville no ground for believing that you will assent to any expression of the rule except that of the Senate amendment. No. 95. SCHENCK. Mr. Fish to General Schenck. [Telegram.] WASHINGTON, June 8, 1872. The reference to any conversation with Thornton is unjustified. I have invariably told him, as I have told you, that it is useless to discuss amendments to the proposed Article. In my telegram of 31st, I said the British amendment left a large class of very probable cases unprovided for. In conversation with Thornton I told him the same, and indicated some of those cases arising from the use of the word "belligerent," but I indicated no change that was desired by me or by this Government. I thought the amendment proposed objectionable, and the last suggested amendment in telegram of yesterday does not remove the objection, and I refer to my telegram of 5th and repeat emphatically the last clause. FISH. No. 96. General Schenck to Mr. Fish. [Telegram.] LONDON, June 8, 1872. I received your telegram of yesterday early this morning, and communicated it immediately to Lord Granville. I supposed any new pro 36 A-II |