Chap.XVII. upon, within six months, agree upon some Sovereign or Head of a friendly State, who shall be invited to decide upon such claim, and before whom shall be laid the official correspondence which has taken place between the two Governments, and the other written documents or statements which may have been presented to the Commissioners in respect of such claims."1 That the American Government that is, the President acting by the advice and with the consent of the Senate-had a right to decline to ratify the Convention, will be disputed by no one. This right belongs to every Sovereign, and may be exercised for any reason that he judges to be of sufficient importance, even though the negotiator have not exceeded his powers or transgressed his instructions. So important is it that the neutral engagements of nations should be contracted deliberately, that there should be opportunity for reconsideration, and that the assent of each should be perfectly free. The reasons for which the ratification was withheld in this case were explained in Mr. Fish's despatch of the 25th September, 1869. Though somewhat vaguely stated, they cannot certainly be described as light or trivial: they express, on the contrary, a view of the question at issue so widely different from 1 Nothing is here said about the question of recognition. The British Government had not only refused several times distinctly and positively to suffer this question to be raised before an arbitrator, but had repeated this, through Lord Stanley, to Mr. Johnson himself: "In this conversation (21st October, 1868) little was said as to the point on which the former negotiations broke off, viz., the claim made by the United States' Government to raise before the arbiter the question of the alleged premature recognition by Her Majesty's Government of the Confederates as belligerents. I stated to Mr. Reverdy Johnson that we could not on this point depart from the position which we had taken up, but I saw no impossibility in so framing the reference as that, by mutual consent, either tacit or express, the difficulty might be avoided."-Lord Stanley to Mr. Thornton, 21st October, 1868. It must be assumed that the Queen's Government did not intend to abandon this resolution by acquiescing in the use of general words, nor the Government of the United States to overreach Great Britain by a trick of expression. that which appears to have governed the framing of Chap. XVII. the Convention that they were not only sufficient to warrant the rejection of it, but appear likely to oppose considerable obstacles to the conclusion of any other. There is certainly not the slightest reluctance in this country to make any reasonable amends to the United States, could we but convince ourselves that reparation is justly due. Were we satisfied of that, I am persuaded that no punctilious sense of national dignity or honour would be suffered to forbid the frank acknowledgment of a past error. But the estimate which the American Government has thought fit to adopt of its own claims, and of the questions to be submitted to an arbitrator, is not favourable to a settlement. To say truth, it is such as almost to preclude discussion.1 1 "The Claims Convention, Mr. Motley said, had been published prematurely owing to some accident which he could not explain, and that consequently long before it came under the notice of the Senate it had been unfavourably received by all classes and parties in the United States:-the time at which it was signed was thought most inopportune, as the late President and his Government were virtually out of office, and their successors could not be consulted on this grave question. The Convention was further objected to because it embraced only the claims of individuals, and had no reference to those of the two Governments on each other, and lastly, that it settled no question and laid down no principle." -The Earl of Clarendon to Mr. Thornton, 10th June, 1869. "The President deems it due to the Senate, to himself, and to the subject, to declare that he concurs with the Senate in disapproving of that Convention. His own particular reasons for this conclusion are sufficiently apparent in this despatch. In addition to these general reasons, he thinks the provisions of the Convention were inadequate to provide reparation for the United States in the manner and to the degree to which he considers the United States entitled to redress. Other and special reasons for the same conclusion have been explained in a previous despatch, such, namely, as the time and circumstances of the negotiation, the complex character of the proposed arbitration, its chance, agency, and results, and its failure to determine any principle, or otherwise to fix on a stable foundation the relations of the two Governments. The President is not yet prepared to pronounce on the Chap.XVII. Arbitration is a useful expedient when all that the parties require is an impartial judgment on their respective rights, and this can be given without laying down a general principle; or when the principle which it is necessary to lay down will be of no future importance to the litigants; or when the authority of the arbitrator is such that they are content to receive from him a principle which will be important to them hereafter. Where the decision will probably involve, or appear to involve, an important rule of conduct, on which the parties, or either of them, would not be willing to submit to the authority of the arbitrator, objections may reasonably be entertained to this mode of settlement. Further, where the decision will involve, or appear to involve, a principle of importance, it is material that the principle should be stated clearly, and, for this purpose, that the question of the indemnities which he thinks due by Great Britain to individual citizens of the United States for the destruction of their property by rebel cruisers fitted out in the ports of Great Britain. "Nor is he now prepared to speak of the reparation which he thinks due by the British Government for the larger account of the vast national injuries it has inflicted on the United States. "Nor does he attempt now to measure the relative effect of the various causes of injury, as whether by untimely recognition of belligerency, by suffering the fitting out of rebel cruisers, or by the supply of ships, arms, and munitions of war to the Confederates, or otherwise, in whatsoever manner. "Nor does it fall within the scope of this despatch to discuss the important changes in the rules of public law, the desirableness of which has been demonstrated by the incidents of the last few years now under consideration; and which, in view of the maritime prominence of Great Britain and the United States, it would befit them to mature and propose to the other States of Christendom. "All these are subjects of future consideration which, when the time for action shall come, the President will consider with sincere and earnest desire that all differences between the two nations may be adjusted amicably and compatibly with the honour of each, and to the promotion of future concord between them; to which end he will spare no efforts within the range of his supreme duty to the right and interests of the United States."-Mr. Fish to Mr. Motley, 25th September, 1869. question which is to be submitted to the arbitrator Chap.XVII. should be stated clearly. Generally speaking, there are Note. few classes of questions more suitable for arbitration than questions of alleged negligence or unintentional default. On the other hand, the question under what circumstances a Sovereign Government may issue a declaration of neutrality, is one on which few Sovereign Governments would be willing to bow to the decision of any arbitrator. NOTE. After the foregoing pages were in print, I have had the pleasure of reading a short dissertation, entitled La Questione Anglo-Americana dell' Alabama dopo il Discorso del Senatore Sumner al Senato di Washington, by Signor Pietro Esperson, Professor of International Law in the University of Pavia. It is chiefly devoted to a consideration of the question whether the recognition of the Confederates as belligerents was an injurious act, for the consequences of which Great Britain became responsible. Professor Esperson lays down, in substance, the following propositions, and argues them one by one :— Where revolt or rebellion has gone such a length as to establish within a country a de facto Government, confronting the old one and waging war against it, foreign nations are bound, by the respect due to national independence, to accept the facts as they exist, without inquiring whether the new Government has right on its side; to regard the contending parties as (for the purposes of the war) two independent societies; and to remain neutral. These conditions existed in the United States, and foreign nations had no alternative but to recognize both parties as belligerents. As there can be no war without two or more belligerents, to deny that character to one of the contending parties would have been to refuse it to the other. The blockade of the South was, in respect of foreign nations, an exercise of the rights of war against neutrals, and President Lincoln's Proclamation of the 19th April, 1861, which announced the blockade, recognized the existence of a war. Great Britain exercised a right, and may indeed be said to have fulfilled a duty, in recognizing the Confederates as belligerents. It is, therefore, absurd to contend that she is responsible for damages which the United States may have sustained, traceable directly or indirectly to the Queen's Proclamation. "Come si può conciliare che chi Chap. XVII. non è responsabile della causa debba poi rispondere degli effetti?" Even if it were true that the Confederates would never have sent privateers to sea, had they not been recognized as belligerents, this would not justify a claim for reparation; the recognition itself being a perfectly legiti Note. mate act. Setting aside the case of the Alabama, the conduct of Great Britain was blameless in respect of both the contending parties ("inoffensiva per ambe le parti contendenti"). As regards the Alabama, Professor Esperson thinks that the British Government became responsible for the losses actually inflicted by that vessel. He will pardon me, however, for saying that on this subject, to which he devotes only a few lines, his information seems to be imperfect. He describes the Alabama as having been built, armed, and manned in British waters, under the eyes of the British Government, as having been wholly manned with British seamen, and afterwards received into British ports "with her prizes." And he says that in the Convention rejected by the American Senate the British Government admitted a violation of neutrality in this case, by consenting to refer to arbitration the amount ("il calcolo") of the losses sustained by merchants who suffered from the depredations of the Alabama. If he should do me the honour to read this book, he will find that these are very unlike the true facts of the case, and he may perhaps see reason to change his opinion on this point. |