Indirect Claims
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 experienced 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, consequential, 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 preposterous 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 [pg 407] others to be out of their wits, there was nothing for it but dishonesty.
For five anxious months the contest lasted. The difficulties 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 government, 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 settlement which it would be a sad disgrace as well as misfortune to both countries now to miss.” And here occurs a consideration 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 aggravated 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 [pg 408] have generally marked his conduct with, regard to the Washington treaty.... On the whole the House of 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[265] 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 unsound, 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.[266] All this was a rational and truly diplomatic temper on both sides; but then the immortal 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 transfigured 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 conference, 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 [pg 409] to rule the indirect claims out. At the other extreme of the cabinet scale, the view was urged that England should not go on, unless she put upon record a formal declaration that did she not, and never would, assent to any adjudication 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 responsible for so much of the original mischief[267]—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 lie 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 [pg 410] converse with my colleagues. March 16.—Cabinet 2¾-7; laborious chiefly on the Washington treaty. 17th.—Worked on part of the 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 below-stairs 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 Uniformity bill through committee at intervals. June 3.—Cabinet 3-4-1/4. 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 Education—the House too well pleased as to the former. 11th.—The cabinet met at 2. and sat intermittently with the House to 5¾, again 9-1/4-1.
At Geneva
The arbitrators were to meet on June 15. Yet no break in the clouds seemed likely. Mr. Gladstone and his colleagues 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 adjournment, 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:—