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Fenianism ; Fenianism was excited by the proximity of the
British flag over the Canadian border ; therefore, the British
flag should be withdrawn from the whole hemisphere, in-
cluding the islands, and the American flag should fly in its
stead. In conformity with this tight and simple chain of
reasoning, Mr. Fish threw out a hint to Lord de Grey that
the cession of Canada might end the quarrel The English
envoy contented himself with the dry remark that he did
not find such a suggestion in his instructions. 2

1 A Historical Account of the and indemnification to the colonists

Neutrality of Great Britain during for losses suffered by them in their

the American Civil War. 1870. rebellion, and Lord Shelburne was as

8 Franklin, in the negotiations on deaf in 1782 as Lord de Grey in

the recognition of the independence 1871. At an inaugural dinner of what

of the American colonies in 1782, had was then called the Colonial Society

made the same suggestion of the ces- (March 10, 1869), Mr. Johnson, then

sion of Canada by way of reparation American minister, made some semi-



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10 WASHINGTON AND GENEVA

Though sometimes amused, the commissioners soon under-
stood that at heart the American negotiators desired to
187L settle. Difficulties with their own people were great. A
presidential campaign with all its necessities approached.
A settlement of outstanding accounts with England might
be a good card to play in the election ; on the other hand, if
the peace card were not available, it was just possible that a
war card might do nearly as well Mr. Fish was mortally afraid
of Sumner, who had been chairman of the foreign relations
committee in the senate, and whose anti-English temper, as
we have seen, was red-hot. The constitutional requirement
of a two-thirds majority in the senate for the ratification of a
treaty was awkward and menacing, and it was necessary to
secure dubious senators by the exhibition of high national
temper on the public stage. It is interesting to note, in
passing, that the English visitors were persuaded how much
better it would have been if, according to our own parlia-
mentary system at Westminster, the American system had
allowed Mr. Fish to meet Mr. Sumner on the floor of congress,
and instead of seeking victory by unseen manipulation, fight
the battle out before the country.

The British commissioners were almost as much em-
barrassed by their friends at home as by their friends
or foes at Washington. Both ministers and lawyers, from
the safe distance of Downing Street, were sometimes ex-
cessive in pressing small and trivial alterations, which the
Americans after the diplomatist's manner insisted on
treating as if they were not small but great. The sharp
corner in the London cabinet was the more serious pro-
posal, that certain rules as to the duty of neutrals should
be laid down, and should be made guiding principles for the
arbitrators, although the rules themselves had not been
formally established when England's alleged breaches of

facetious remarks about colonies find- to open negotiations for the cession of

ing themselves transferred from the British Canada. Mr. Gladstone, who

union jack to the stars and stripes, was present, referred to the days

Lord Granville said he was rather when he had been at the colonial

afraid that the minister of the great office, when in every British colony

republic, who had spoken with such there was a party, called * the British

singular eloquence, would feel it was a party,' which, he rejoiced to think r

little want of sense on his part, that nad since become totally extinct,
made him unprepared at that moment



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DIFFICULTIES IN CABINET 4 11

neutral obligation had been committed This retro-active
or ex-po8t-facto quality, when the cabinet considered it
(March 18), gave trouble, and it was used by passionate and
impolitic persons to tarnish the whole policy in this country.
Much heat was evoked, for a cabinet of many talents is
not always the same thing as a cabinet of plain minds. One
clever man objected at large to the commission, to con-
cession, to obtaining any principle of settlement for future
contingencies. A second was violent against all such arbi-
tration as this, and thought they had much better pay up
at once and have done with it. A third clever man even let
fall some high words about ' national dishonour.' Granville,
Aigyll, Forster (the last described by a colleague as ' a tower
of strength '), were steadfast and unfaltering for conciliation.
Mr. Gladstone agreed, but eager though he was for a settle-
ment, he * agreed with reluctance/ Sir Roundell Palmer
had now great influence with him, and Palmer had come
round to the conclusion that the risk from translating
retrospectively into the form of a hypothetical international
convention, not existing when the events happened, a duty
that we iad recognised as incumbent on us under our own
law, might be safely run. 1 In plain English, the adverse way
of describing this peculiar substitute for a free and open
arbitration, was that Great Britain owed the Americans
nothing, and if she had not consented to accept a set of
new-fangled rules, and to be judged retro-actively by them,
she could not possibly have been made to pay anything. To
this the short answer was that though the rules might or
might not be new-fangled as principles of international law,
yet they were not new as principles of English municipal
law, which, as construed by the British government itself,
was coincident in substance with those rules. Was it in
fact reasonable to contend that ironclads might be built in
the Mersey, sent otit a few miles beyond the river mouth,
there armed from lighters, and sent off to bombard New
York ? If not, was it reasonable that England should invite the
arbitrators to judge the Alabama case according to one rule
in the past, and then to lay down another rule for the future ?

1 Selborne, Personal and Political Memorials, i. p. 214.



^Et. 62.



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12 % WASHINGTON AND GENEVA

BOOK A minor objection raised by Mr. Gladstone gave much.
* ^ alarm to his commissioners, and it is too characteristic to



1871 - be omitted. Speaking of the ardently desired treaty, he
writes to Lord Granville (April 12, 1871) : —

With regard to the preamble, it designates the late war in
America as 'the rebellion/ I do not think it is right for us
now to adopt a mode of speech different from that which we
maintained throughout the struggle. Further, it tends to dis-
credit our recognition of belligerency. And if we declare it a
rebellion, we have given an example available to be quoted here-
after for the dealings of a foreign power with rebels as belligerents.
If, on the other hand, the Americans object to speaking of the
' civil war,' it is quite easy (so I think) to leave out the words
' during the recent rebellion in the U.S.' altogether, and to say
in the years 186 — or even to begin 'Whereas H.B.M/ perhaps
inserting after ' U^S.' ' in respect of such depredations.' •

This is an instance of the tenacity with which he some-
times held his ground after its relations and bearings had
entirely changed. Something too may doubtless be set
down jto the lingering remains of his old feeling, of the
strength of the constitutional argument of the South that
sovereign states had a right to withdraw from the union
if they pleased. If the proposal to drop the word ' rebellion*
had been brought without warning or preparation before the
full commission, assent would have been hopeless, but by the
discretion of informal interviews, the matter was canvassed
beforehand, the obnoxious word was silently left out, Mr.
Gladstone's point was gained, and things went prosperously
forward. ' I am quite sure/ wrote Sir Stafford Northcote to
Mr. Gladstone (March 17), ' that there was no other way in
which you could have hoped to settle these questions than
by such a commission as ours. . . . What may be our fate I
do not presume to guess, but if we succeed, it will be mainly
due to de Grey's excellent sense, tact, and temper/ In
the end, notwithstanding the power of the senate over
treaties, the want of control by the American government
over its party, and the exigencies of Canada, all at last fell
into decent shape, and the substantial objects in view were



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TREATY SIGNED 13

effectively maintained. Canadian fishery questions were
adjusted, and the boundary of San Juan remitted to the
arbitration of the newly made German Emperor.

After thirty-seven sittings, spread over a period of two
months, the treaty was signed on May 8, in a room decorated
with flowers, with the good omen of brilliant sunshine, and
everybody in such good humour that the American secretary
of the commission tossed up with Lord Tenterden which
should sign first, — the Englishman happily winning. The
treaty began by the declaration that her Britannic Majesty
authorised the commissioners to express in a friendly spirit
the regret felt by her Majesty's government for the escape,
under whatever circumstances, of the Alabama and other
vessels from British ports, and for the depredations com-
mitted by these vessels. It embraced a definition of the
rules of maritime neutrality, which some legal text- writers
have applauded, and other legal text- writers have therefore
condemned. Finally, and most important of all, whether we
look at the immediate purpose or at its contribution to a
great though slow-moving cause, the treaty of Washington
secured a judgment by the arbitration of a tribunal, of all
claims growing out of acts committed by the cruisers, ' and
generically known as the Alabama Claims/ The tribunal
was to consist of five members named by Great Britain,
the United States, Switzerland, Italy and Brazil.

The effect of the rules of Washington as applied at Geneva
remains, as I have said, a topic of controversy. Maine, for
example, while admitting that the result for the occasion
was good, holds that by making the rule of neutral duty
more severe, it marked reaction rather than progress in the
general drift of international law. 1 Others maintain that
the amended foreign enlistment Act of 1870, which is in
fact a partial incorporation of the Washington rules, went
far beyond what international law requires, and made a new
crime out of an act, namely the building of a ship, which is
not forbidden either by the law of nations or by other
municipal laws. 2

1 International Law, p. 240. On Law (1895), pp. 5534.
the doubtful value of the rules, see a Boyd, third Eng. edition of
Lawrence's Principles of International WTuaton ( 1 889) p. 593.



^Et. 62.



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1872.



14 WASHINGTON AND GENEVA

BOOK IV .

VI.

Once, after some crowning mercy in the war, President

Lincoln said to his cabinet, * Now, gentlemen, we have got
our harpoon into the monster, but we must still take
uncommon care, or else by a single flop of his tail he will
send us into all eternity.' This wholesome caution, too
often overlooked by headlong politicians, was suddenly
found to be much needed at the eleventh hour of the treaty
of Washington. At the end of 1871, Mr. Gladstone ex-
perienced a severe shock, for he found that the case put in by
America for the arbitrators insisted upon an adjudication
by them not only upon the .losses suffered by individual
American citizens, but upon the indirect, constructive, con-
sequential and national claims first propounded in their full
dimensions by Mr. Sumner. A storm at once arose in
England, and nobody was more incensed than the prime
minister. In reporting to the Queen, he used language of
extreme vehemence, and in the House of Commons (Feb. 9.
1872) when Mr. Disraeli spoke of the indirect claims as pre-
posterous and wild, as nothing less than the exacting of
tribute from a conquered people, Mr. Gladstone declared
that such words were in truth rather under the mark than
an exaggeration, and went on to say that ' we must be insane
to accede to demands which no nation with a spark of honour
or spirit left could submit to even at the point of death/
Speaking of the construction put upon the treaty by the
government, he declared such a construction to be ' the true
and unambiguous meaning of the words, and therefore the
only meaning admissible, whether tried by grammar, by
reason, by policy, or by any other standard/ Some persons
argued that this was to accuse the Americans of dishonesty.
' I learn really for the first time/ exclaimed Mr. Gladstone to
Lord Granville (Feb. 8), ' that a man who affirms that in his
opinion a document is unambiguous in his favour, thereby
affirms that one who reads it otherwise is dishonest' His
critics retorted that surely a construction that could not
stand the test of grammar, of reason, of policy, or any other
test, must be due either to insanity or to dishonesty ; and as
we could hardly assume General Grant, Mr. Fish, and the



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INDIRECT CLAIMS 15

others to be out of their wits, there was nothing for it but
dishonesty.

For five anxious months the contest lasted The difficulties - Et# 63
were those of time and form, often worse than those of matter
and substance. Nor would this have been the first case in
which small points hinder the settlement of great questions.
The manner of proceeding, as Mr. Gladstone reports to the
Queen, was of such complication that hours were given
almost every day for many weeks, to the consideration of
matter which on the day following was found to have moved
out of view. Suggestions came from Washington, mostly
inadmissible, whether their faults were due to accident and
haste or to design. Sometimes refusals of this suggestion or
that from our side were couched in ' terms of scant courtesy
and bordering upon harshness/ Still the cabinet persisted
in husbanding every chance of saving the treaty. They
charitably judged the attitude of the Washington govern-
ment, in Mr. Gladstone's ample language, ' to be directed by
considerations belonging to the sphere of its own domestic
policy, and to the contentions of party in that sphere. But
they will attempt by patient consideration, avoidance of self-
laudation and of irritating topics, and a steady endeavour to be
right, to attain the great end in view of an honourable settle-
ment which it would be a sad disgrace as well as misfortune
to both countries now to miss/ And here occurs a considera-
tion as we pass, upon the American constitution. ' The fact
remains indisputable (June 1), that there is no conclusive
evidence of any serious subject the substance of which is at
present in dispute between the two governments, but the
difficulties arising on the American side from what may
be termed electioneering considerations are greatly aggra-
vated by the position of the American senate and the
reference to that body for previous counsel, for which it
seems to be miserably unsuited, as it takes days and almost
weeks for debate, where a cabinet would require only
hours/

The opposition in parliament was patriotic, and as a rule
made no difficulties. ' Mr. Disraeli/ reports Mr. Gladstone
(June 3), ' behaved with the caution and moderation which



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16 WASHINGTON AND GENEVA

BOOK have generally marked his conduct with regard to the

_^J * Washington treaty. ... On the whole the House of

1871 - Commons showed the same dignified self-command for
which it has been remarkable during the whole period since
the opening of the session with reference to this question ;
although the more inflammatory expressions, which fell
from a few members, were warmly cheered by a portion, and
a portion only, of the opposition/

The cabinet was unanimous against the submission of the
indirect claims, but there were marked differences of leaning,
as in fact there had been throughout. All accepted Lord
Ripon's 1 view that if he had insisted on getting into the
treaty nothing less than a formal and express repudiation of
the indirect claims, no treaty at all would have been possible.
Both sides in the Washington conferences had been more
anxious to submit to the arbitrators the principle of allowing
indirect claims, than to embark on any discussion of them.
The American commissioners knew this principle to be un-
sound, but knowing also that their own people expected the
claims to be referred, they could only abstain from insisting
on their inclusion. The British commissioners were willing
silently to waive an express renunciation of them, being
confident that the terms of the protocols and the language
of the treaty would be so construed by the arbitrators as to
exclude the indirect claims. 2 All this was a rational and
truly diplomatic temper on both sides; but then the im-
mortal events of a hundred years before had shown too plainly
that Englishmen at home cannot always be trusted to keep
a rational and diplomatic temper ; and many events in the
interval had shown that English colonists, even when trans-
figured into American citizens, were still chips of the old
block. The cabinet agreed that a virtual waiver of the
claims was to be found both in the protocols of the con-
ference, and in the language of the treaty. Lord Ripon and
Mr. Forster, however, thought it would be safe to go on at
Geneva, in the assurance that the arbitrators would be certain

1 Lord de Grey had been created of International Arbitration to which

Marquis of Ripon after the signature the United States have been a Party.

of the treaty of Washington. Washington, 1898, i. pp. 629-37.

a See Moore, History and Digest



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INDIRECT CLAIMS 17

to rule the indirect claims out. At the other extreme of
the cabinet scale, the view was ufged that England should
not go on, unless she put upon record a formal declaration ^ Et - 6 ~
that she did not, and never would, assent to any adjudica-
tion upon the indirect claims. To a certain minister who
pressed for some declaration in this sense, — also formulated
in a motion by Lord Russell in parliament, himself respon-
sible for so much of the original mischief 1 — Mr. Gladstone
wrote as follows : —

June 17. — . . I doubt whether the cabinet can legitimately
be asked, as a cabinet, to make these affirmations, inasmuch
as, according to my view, they are not within the purview of its
present undertaking — that undertaking has reference exclusively
to the scope of the arbitration. We have contended all along that
the claims would not legitimately come before the arbitrators. . . .
But we had never demanded the assent of the Americans to our
reasoning, only to our conclusion that the claims were not within
the scope of the arbitration. It is my view (but this is quite
another matter) that they he cast aside, a dishonoured carcass,
which no amount of force, fraud, or folly can again galvanise into
life. You will see then, in sum, that (if I rightly understand you)
I accept for myself broadly and freely what may be called the
extreme doctrine about the indirect claims ; but I think the cabinet
cannot fairly be challenged for an official judgment on a matter
really not before it.

The little entries in the diary give us a good idea of the
pressure on the prime minister : —

Feb. 6, 1872. — Spoke an hour after Disraeli on the address. . . .
The Alabama and Washington question lay heavy on me till the
evening. Even during the speech I was disquieted, and had to

1 Mr. Bruce writes home from the were in the House of Commons,
cabinet room : — * June 5, 1872 : You would lead to resignation. We can-
mast read the House of Lords debate not of course treat the vote of the
on the Alabama treaty. It was a most Lords, where we are. always in a
mischievous move of Lord KusseU, as minority, as of the same quality.
the discussion must weaken our last But it will be misunderstood in
chance — not a bad one — of settling America. We are now in the cabinet
differences. The debate was ad- discussing the next steps.' The
journed. But there is no doubt that motion was withdrawn.
a vote wiU be carried which, if it

VOL. II. B



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18 WASHINGTON AND GENEVA

BOOK converse with my colleagues. March 16. — Cabinet 2f-7 ; laborious
/ . chiefly on the Washington treaty. 17 tk. — Worked on part of the

18 ' 2 - despatch for America. 18th. — In conclave. Much heavy work on
Alabama. 22nd. — Severe bronchial attack. Transacted business
through West, W. H. G. [his son] Mr. Glyn, Lord Granville and
Cardwell, who went to and fro between the cabinet belbw-staira
and me. To all of them I whispered with some difficulty. April
5. — Conclave on countercase. First with Cardwell and Lowe,
then with Tenterden and Sanderson. Much confusion. May 12.
— Saw Lord Granville, who brought good news from America.
27th.— U.S. question bristles with difficulties. 30th.— H. of C.
During the evening two long conferences on Washington treaty
with Lord G. and the lawyers, and a cabinet 10-1. Worked Uni-
formity bill through committee at intervals. June 3. — Cabinet
3-4 J. H. of C. Made a statement on the treaty of Washington.
The House behaved well. Also got the Act of Uniformity bill
read a third time. Its preamble is really a notable fact in 1872.
6th. — H. of C. Spoke on Washington treaty and Scots Educa-
tion — the House too well pleased as to the former. 11th. — The
cabinet met at 2, and sat intermittently with the House to 5 J,
again 9J-1.

.The arbitrators were to meet on June 15. Yet no break
in the clouds seemed likely. Mr. Gladstone and his col-
leagues had a meeting at the foreign office, and did not
separate until after midnight on June 11. The British
agent was to be directed to apply for an immediate adjourn-
ment, and without lodging the summary of our case as
provided by the treaty. If the arbitrators declined to adjourn,
either because the Americans objected, or from a belief that
they had no title to adjourn without a formal opening of
business by lodging summaries, then was or was not our
agent to change tack and lodge his summary ? Or was the
arbitration, and with the arbitration the whole treaty, to fall •
to the ground for want of it ? On this question Mr. Gladstone
thought it his duty to mention to the Queen that it had not
yet (June 13) been found possible to bring the cabinet to a
decision. For a day or two it looked as if the ministry might
fall to pieces, but the head of it was indomitable : —



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AT GENEVA 19

June 13 (Thursday). — Since Tuesday morning I have constantly CHAP,
revolved or discussed this proposition : that we should not be justi- v IX - A
fied in breaking off the proceedings at Geneva (if an adjournment & T > 63.
can be had after presentation of the summary), upon a refusal to
present it. My determination upon it is now firmly rooted and
tested by all the mental effort 1 can apply, and the time I thought
had come to-day for looking forward as well as backward. I there-
fore wrote to the Queen in terms which might a little prepare her
for difficulties in the cabinet. I saw Granville first, who had not
reached my point, but seemed to come up to it ; then arranged for
him to see Halifax, Ripon to see Kimberley, and the chancellor
[Lowe] to see Cardwell ; as the knot of the probable difficulty is in
these three. On the whole, I hope we shall, in one way or another,
work through. At any rate, if anything like a government can be held
together, I will not shrink.

June 15. — Cabinet 12-2 J, and with brief intervals to 7 \. Dined
with Princess Louise. After dinner Granville and I went to
see Mr. Hammond, then on to the F. 0., where we got (before
midnight) the protocol of to-day from Geneva. Thank God that
up to a certain point the indications on this great controversy are
decidedly favourable.

June 16. — Sunday (Bunker Hill anniversary ? [No — June 17]).
Cabinet here 1|-3J. We sent off a telegram, which I hope may
finish the good .work at Geneva.

What happened at Geneva was this. When the day came,
the Britteh agent did not lodge his summary, but asked for
an adjournment for eight months, as the .two governments
did not agree upon the scope of the arbitration. This looked
dark enough, and the treaty seemed doomed. It was saved
by Mr. Adams, the American nominee on the tribunal. When
he reached Geneva and learned how things stood, he decided
that the knot which they could not untie must be cut. 1 His
golden idea was this: the arbitrators should make a spon-



Online LibraryJohn MorleyThe life of William Ewart Gladstone, Volume 2 → online text (page 2 of 91)