Though sometimes amused, the commissioners soon understood that at heart the American negotiators desired to 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 parliamentary 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.
Difficulties In Cabinet
The British commissioners were almost as much embarrassed 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 excessive 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 proposal, 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 [pg 403] neutral obligation had been committed. This retro-active or ex-post-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 concession, to obtaining any principle of settlement for future contingencies. A second was violent against all such arbitration 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, Argyll, 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 settlement, 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 had recognised as incumbent on us under our own law, might be safely run.[262] 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 out 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?
A minor objection raised by Mr. Gladstone gave much alarm to his commissioners, and it is too characteristic to 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 discredit our recognition of belligerency. And if we declare it a rebellion, we have given an example available to be quoted hereafter 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 in after “U.S.” “in respect of such depredations.”
This is an instance of the tenacity with which he sometimes held his ground after its relations and bearings had entirely changed. Something too may doubtless be set down to 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 effectively [pg 405] maintained. Canadian fishery questions were adjusted, and the boundary of San Juan remitted to the arbitration of the newly made German Emperor.
Treaty Signed
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 committed 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.[263] 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.[264]