Granville to Robert C. Schenck, June 11, 1872
Earl Granville to General Schenck.
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, hereinbefore 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 show 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,