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duties as respects either belligerent. In effect, the occurrence of war between any two powers involves more or less modification of the free. dom of action of the neutral, either by land or by sea. But freedom of action is the general right of every sovereign power, although in time of war such power yields a portion of its freedom, that is, of its general right, to the just demand of one or the other of the belligerents. It should be expected to yield the least possible of that general freedom that will allow it to be neutral in fact, for this constitutes the obligation of the neutral. On the other hand, each belligerent is entitled to demand of the neutral in profession that it should be neutral in fact. The United States have had occasion to look practically at both sides of the question, and therefore sometimes to assert neutral duties, while more generally asserting neutral rights and the policy of peace, to such extent and under such circumstances as to bave rendered the United States the champion of neutral rights, and thus by moral influence to have acted potentially on the course of events in Europe.
History repeats itself.
I cannot err, therefore, in thinking it important to note for future memory the positions in this respect maintained by the "representative” of the British government at Geneva, and noting the of that representative the Lord Chief Justice of England. I am, sir, pour obedient servant,
The importance of
Hon. J. C. BANCROFT DAVIS,
dc., d'c., c.
VI.-REPORT OF THE COUNSEL OF THE UNITED STATES.
WASHINGTOX, November 23, 1872. (Received Norember 26.) SIR: We have the honor to report tbat, in conformity with your instruction of the 8th of December, 1871, we repaired to Europe at as early a day thereafter as possible, in the discharge of our duty as counsel of the United States before the tribunal of arbitration established by the treaty of Washington.
While occupied in the preparation of the Counter Case of the United States and of the general argument, in their behalf, we found it advantageous to dwell in Paris for convenience of access to books of diplomacy and jurisprudence, and also of ready communication with London and with Washington.
In June we proceeded to Geneva, and continued there until the close of the proceedings before the arbitrators, occupied in constant attendance on them, and in the preparation and presentation of various ad. ditional arguments in response to such arguments as had been specifically required of Great Britain by the tribunal. We refer the Depart. ment to the Counter Case and documents accompanying the same, to the main argument in behalf of the United States, to the successive subse. quent arguments, and to the correspondence of the agent of the United States, for complete information regarding our acts as counsel for the Government.
In now terminating our connection with this great international cause, we beg to be allowed to express the hope that the President will see in the final award of the tribunal proof that we have not been wanting to the important trust which he confided to us. And we remain, &c.,
OPINIONS OF STATESMEX, MAGAZINES AND JOURNALS OF GREAT BRITAIN
AND THE CONTINENT ON THE CONSTRUCTION OF THE TREATY OF WASHINGTON.
Extracts from speeches made in a debate in the House of Lords, 11k of June, 1872.
[From the Times of June 5, 1972.)
The EARL OF DERBY rose and said :
“Everybody knows that we put one construction on the treaty and that the American negotiators put another. The noble earl (Earl Granville] stated that he conceived the indirect claims were excluded by the treaty as it stands. Now, that matter has been abundantly discussed in both houses, in every newspaper, in every private society, and I think the very utmost for which any one unconnected with the government has ever contended is this, that the language of the treaty was so vague, so ambigrious, so uncertain, that it may be construed either way, and, therefore, our construction was as admissible as that put upon it by the other side. Now I do not think that in a matter of such enormons importance, after the plain warning which had been given us by the speech of Mr. Sumner, after the evidence we han bad of the immense consequence wlich the American Government and people attach to these indirect claims, and the pertinacity with which they had urged them, I do not think it is at all unreasonable to say that in a matter of that kind uncertainty and ambiguity in the language of the document to which you must appeal as the supreme authority upon the matter are not likely to inspire confidence. I will not go into the controversy raised by my noble friend. He says the indirect claims, even if in the treaty, are waived in the protocol, and he referred to the question which has often been discussed as to tho meaning of the words 'amicable settlement.' Now, the obvious answer to that has often been given. An arbitration is not an amicable settlernent. It is a means by which an amicable settlement may be arrived at, but it is not itself a settlement. I do not want to go into that question, for it is enough for my argument to say that in a matter of this kind, with the full knowledge that we have had of what was claimed by the other side, and considering the immense importance of the matter at issue, there ought to have been no doubt or uncertainty." LORD Cairns said:
“We have had conflicting views as to the construction of the treaty fully before us; and now I tell the noble earl that I accept his reference to judicial claims as no compliment, accompanied, as it is, with a sneer that I am capable of making a construction of a document in one place differ from that I should give in another. [Lond cheers.] My lords, I will tell the noble earl sonicthing more. He says he talked with a judge half an hour before le entered this house, and he said that the indirect claims were clearly inadmissible. The noble earl speaks of what has been said by very learned persons in this country and elsewhere, but be quite misanderstands what those learned persons spoke about. What I understand them to be talking about-and I quite agree with them, I believe that no judge would say that these indirect claims could be admitted for a moment; but that is not the question; the question is, whether the hands of the tribunal at Geneva are sufficiently tied and bound so that they would not be the judges to say whether these are good claims or bad claims. [Hear, hcar.] That is what we want to know--that is what my noble and learned friend, who spoke last but one, put very fairly. He said, with regard to the supplementary article, that wbat the commissioners ought to have done, if they had understood their business, was to have added a new article to exclude these claims. I agree that the claims are preposterous, and that the country and the government never meant to entertain them. But the question is, wbat ought to be our view as to the construction of this treaty? The noble marquis, the president of the council, taunted the noble marquis behind me with having thought it consistent with his duty to make observations which were highly in favor of the American view of the case.
“I dare say I shall be taunted, perhaps, in the same way. But I will tell the noble marquis what I consider consistent with my duty. I consider it consistent with my duty to speak the truth-[cheers]-and I don't care whether it chimes in with the views of the Government of the United States or the government of this country, [Hear, hear.] The noble earl opposite taunted me with having an opinion on this subject which I am afraid to express. I go further, and say that in my belief the strong arguunent with the United States is not to insist, as the government have insisted, that the construction of this treaty is free from all ambiguity. The government never made a greater mistake than when they went to the United States in the first instance, and said to them, 'You are making claims not only against all principle, but in flagrant opposition to the treaty.'
“I say, generous and higli-spirited men could not have endured language of that kind without making a contest and struggle against it. [Hear, hear.] Nor, I tell the noble earl my view abont the coustruction of this treaty. The prime minister says there is no ambignity; that no sane person could have ever entered into a treats which had such a construction as America had put on it. The noble earl himself, I believe, in his dispatches uses language peculiarly strong in regard to the construction of the treaty. The commissioners tell us they were responsible for having represented to the government that they understood a promise to be given that these claims would not be put forward by the United States, and to-night the noble earl said that on & particular day the government received a communication from the commissioners saring that the claims were not to be put forward.
“What is the meaning of this ? Why were the commissioners to write to the gorernment and say that a promise was given that these claims would not be put forward if the treaty was free of ambiguity? The two things cannot stand together. Take which you like-the treaty is unambiguons, or admit that it is not clear, and rest on the promise given by the commissioners; but you cannot have both. I believe that if you refer any breach of duty to the decision of a tribunal, that tribunal, unless yon tie up its hands, will have the right to say what are the extent and the amount of the damage done.
“I admit that in Mr. Adams's time, the indirect claims had not been distinctly stated; but in 1868-69 we had distinct authority as to what had become kuown as the Alabama claims. That authority is the noble earl opposite, who, last year, before this controversy had arisen, described to the house what the Alabama claims had by official correspondence come to mean. Commenting on the terms of the Stanley-Johnson and Clarendon-Johnson conventions, the noble earl said the claims of the American Gorernment had come to conclude everything, and, therefore, that under the reference proposed in those conventions, almost unlimited damages might have been awarded to the American Government. How then can it be said that the Alabama claims represented a bundle of strictly detined claims, and that the term could not possibly be extended beyond these? The next argument is that the protocol of the 4th of May cortains a waiver by the American Government of the indirect claims. I wish I could find it to be so; but I do not find that the American Government waived anything, [Hear, hear.] The American commissioners simply said they wanted us to give them a lump sum; and in the hope of our doing so they would not estimate for the present the amount of the iudirect claims.
“After referring to the indirect injury accrning from the transfer to the British flag of a large part of the American mercantile marine, enhanced rates of insurance, the prolongation of the war, and the large sum necessarily required for this and for the suppression of the rebellion, the protocol says: 'In the hope of an amicable settlement, (meaning the payment of a lump sum,) no estimate was made of the indirect losses, without prejudice, however, to the right of indemnification in the event of no such settlement being made.' In this I can see no waiver whatever. I have no fault to find with the manner in which the noble earl conducts the argument on this point in his correspondence. The whole of the case on this subject is stated by him with great fairness and frankness, and it is surely better to be frank and fair than, ostrich-like, to run our heads into the sand and fancy that this secures our safety. The noble earl's argument is that the waiver of the indirect claims in the event of the amicable settlement proffered by the American commissioners was a waiver which applied to any form of amicable settlement, and, therefore, applied to the form proposed by the British commissioners, and accepted by the United States. That is the whole argument on this part of the case. The American commissioners, in the hope of an amicable settlement by the payment of a gross sum, made no estimate of the indirect losses ; the British commissioners declined such a mode of settlement, and Her Majesty's government maintain that the Americans were bound not to put forward those claims, what. ever the form of settlement.
“ I believe the first copy of the American Case was furnished to the foreign office on the 17th of December, and that twelve additional copies were supplied on the 19th of that month. We all know that the noblo earl opposite was sutiering from illness at the time; and I am sure that there is no one among us who would impute to him that there was any unnecessary delay on his part, or who does not sympathize with him in the position in which he was placed. That, however, is not the question. I do not know whether many of your lordships have looked at tlie case of the American Government. There is an old saying, which is applicable to it, to the effect that he who runs may read. You could see from the very title-page of their case that they were making these claims. And who were at the foreign office at the time? There was Lord Tenterilen, who, as the noble earl said, was one of the very few men in England who were thoroughly acquainteil with this question. There was also Mr. Hammond, at the foreign otiice, and I contess I can hardly believe that when Lord Tenterden or Mr. Hammond opened the first copy of the American Case, either could have failed to see in the course of tive minutes that the United States Government were making those claimsclaims, the surrender of which was proclaimed by the noble earl opposite to be the price of the treaty. (Hear.] A month after this, on the 18th of January, the cabinet sat, and although I can imagine that the falling of a bomb-shell could scarcely have created greater surprise and consternation among them than the American Case, yet some considerable time was allowed to elapse before anything was done, although the matter lay on the surface. The question was one not so much for the law-advisers of the Crown as for the ministers who hail negotiated the treaty, and who had informed the country that its price was the surrender of the indirect claims."
Extract from Fraser's Magazine, Varch, 137?.
We cannot but deeply regret the whole course of procedure which has been pursued by us, both in official and non-ofticial quarters, since the publication of the American Case. Whatever “ blundering" may have been evinced in the drawing up of the afortunate treaty, there has been much more and more unseemly and perilous blundering since, iu tho babel of clamor and denunciation with which the pretensions put forward in the American Case, founded upon it, bave been received. In this remark we refer not so much to the press, which is nothing if not critical," and which, having no recognized authority, incurs none of that responsibility which attaches to authority. We utterly reject and discountenance tho unworthy snygestion put forth by some American journals, that the meaningless and ignoble cry of distress and remonstrance which broke out from “the usual organs of public opinion” on this subject at the beginning of the year, was instigated by Her Majesty's ministers, with a view of diverting attention from other disagreeable questions which they felt to be impending over their heads, or even of removing from their own shoulders the weight of any odium which might attach to all who had had any part in this unfortunate affair of Washington; but we at the same time think it to be a circumstance much to be deplored, that those ministers should have so far forgotten the diguity of their station, and that of the sovereign whose servants they are, as to allow themselves to follow, and to drag the Crown with them in the wake of such a miserable escapade. The conduct of ministers, instead of being such as to re-assure public feeling, and to support the character of the country before surrounding pations, has been undignified, and full of inconsistencies, as well as being, as we believe, utterly without precedent in the history of international relations. It was without precedent, without justification, and at the cost of infinite inconvenience and scandal, that the government introduced into the Queen's speech any reference at all to matters in dispute, which had been formerly delegated to the discretion of a tribunal of arbitration.
It was a still greater violation of the rules of etiquette applicable in such cases, as well as a derogation of the dignity of the nation, to add that " a friendly communication” had been made to the Goverment of the United States, with a view, as was understood, of inducing them to withdraw from and recall part of the “Caso” which they had in due form, and according to the provisions of the treaty, placed before the tribunal. But, in truth, whatever hope there might have been of extracting anything from the generous humor of the Government on the other side of the Atlantic though this humiliating appeal was, on the very evening when the fact was announced, dashed to the ground by tho violent, dogmatic, and offensive language of the intractable premier, who, far from imitating the judicious reserve of the noble lord, his colleague, at the head of the foreign office, noisily challenged the whole world to dispute his own construction of the terms of the treaty as being "the meaning, the only meaning, the rational meaning, the direct grammatical meaning.” Now, to any one with more discriminating perceptions than Mr. Gladstone, such a declaration as this could only imply that the Government of the United States, supposing it to be gifted with ordinary intelligence, must have been guilty of deliberate dishonesty and attempted extortion, in putting forward demands which were to be thus emphatically repudiated