"In the event of failure to agree, the arbitrator is determined 'by lot' out of two persons named by each side. Even if this aleatory proceeding were a proper device in the umpirage of private claims, it is strongly inconsistent with the solemnity which belongs to the present question."
It is "suggestive" that the critical secretary, so keen in detecting conversational inaccuracies, having but two words to quote from a printed document, got one of them wrong. But this trivial comment must not lead the careful reader to neglect to note how much is made of what is really nothing at all. The word aleatory, whether used in its original and limited sense, or in its derived extension as a technical term of the civil law, was appropriate and convenient; one especially likely to be remembered by any person who had read Mr. Sumner's speech,—and everybody had read it; the secretary himself doubtless got the suggestion of determining the question "by lot" from it. What more natural than that it should be used again when the subject of appealing to chance came up in conversation? It "was an excellent good word before it was ill-sorted," and we were fortunate in having a minister who was scholar enough to know what it meant. The language used by Mr. Motley conveyed the idea of his instructions plainly enough, and threw in a compliment to their author which should have saved this passage at least from the wringing process. The example just given is, like the concession of belligerency to the insurgents by Great Britain, chiefly important as "showing animus."
It is hardly necessary to bring forward other instances of virtual misrepresentation. If Mr. Motley could have talked his conversation over again, he would very probably have changed some expressions. But he felt bound to repeat the interview exactly as it occurred, with all the errors to which its extemporaneous character exposed it. When a case was to be made out against him, the secretary wrote, December 30, 1870:
"Well might he say, as he did in a subsequent dispatch on the 15th of July, 1869, that he had gone beyond the strict letter of his instructions. He might have added, in direct opposition to their temper and spirit."
Of the same report the secretary had said, June 28, 1869: "Your general presentation and treatment of the several subjects discussed in that interview meet the approval of this department." This general approval is qualified by mild criticism of a single statement as not having been conveyed in "precise conformity" to the President's view. The minister was told he might be well content to rest the question on the very forcible presentation he had made of the American side of the question, and that if there were expressions used stronger than were required by his instructions, they were in the right direction. The mere fact that a minute of this conversation was confidentially submitted to Lord Clarendon in order that our own government might have his authority for the accuracy of the record, which was intended exclusively for its own use, and that this circumstance was overlooked and not reported to the government until some weeks afterward, are the additional charges against Mr. Motley. The submission of the dispatch containing an account of the interview, the secretary says, is not inconsistent with diplomatic usage, but it is inconsistent with the duty of a minister not to inform his government of that submission. "Mr. Motley submitted the draft of his No. 8 to Lord Clarendon, and failed to communicate that fact to his government." He did inform Mr. Fish, at any rate, on the 30th of July, and alleged "inadvertence" as the reason for his omission to do it before.
Inasmuch as submitting the dispatch was not inconsistent with diplomatic usage, nothing seems left to find fault with but the not very long delay in mentioning the fact, or in his making the note "private and confidential," as is so frequently done in diplomatic correspondence.
Such were the grounds of complaint. On the strength of the conversation which had met with the general approval of the government, tempered by certain qualifications, and of the omission to report immediately to the government the fact of its verification by Lord Clarendon, the secretary rests the case against Mr. Motley. On these grounds it was that, according to him, the President withdrew all right to discuss the Alabama question from the minister whose dismissal was now only a question of time. But other evidence comes in here.
Mr. Motley says:—
"It was, as I supposed, understood before my departure for England, although not publicly announced, that the so-called Alabama negotiations, whenever renewed, should be conducted at Washington, in case of the consent of the British government."
Mr. Sumner says, in his "Explanation in Reply to an Assault:"—