1871.] MISUNDERSTANDING. 7 However, it is no part of our duty to discuss the rights or wrongs of all this, nor to revive an ancient dispute. As may be seen, all turned on an "understanding" differently understood, and doubtless blamelessly, by the persons engaged. What we have to note is the conduct of Sir Stafford Northcote in the matter. On May 19, 1872, he delivered a speech at Exeter, in which he touched on the question of the "indirect claims." "Two questions have been raised," he said: "one the personal question as to what was the understanding between the Commissioners at all events, and perhaps between the two Governments, at the time the treaty was concluded; the other, as to the general merits of the question which has been raised with regard to what are called consequential damages, or the indirect claims. Now, with regard to the personal question I will only say this-that we, the Commissioners, were distinctly responsible for having represented to the Government that we understood a promise to be given that these claims were not to be put forward, and were not to be submitted to arbitration. That being so, we are, of course, brought into painful relations with, and painful questions arise between ourselves and our American colleagues upon that Commission. It would have been most unjustifiable if, while the matter was under discussion, we had allowed any desire to make out our own case in this matter to interfere with a great international settlement going on. Whether the time will ever come for speaking fully upon the matter I do not know, and I comparatively little care." Though these events are distant, it seems needless to add to Sir Stafford's statement. In consequence of these remarks, made in a public speech, one of the American Commissioners, Mr Fish, complained that Sir Stafford was "seeking aliunde outside of the treaty or of the protocol to establish a meaning, or to explain its terms," and that this had the anticipated effect of raising "a personal question." Mr Fish then denied that "such a promise as Sir Stafford stated that the British Commissioners represented to their Government as having been understood by them to have been made by the American Commissioners was in fact ever made."1 Sir Stafford explained himself thus in a letter to Lord Derby : "86 HARLEY STREET, W., June 5, 1872. "DEAR LORD DERBY,-I observe that, in your speech in the House of Lords last night, you referred to a recent statement of mine with regard to the negotiations at Washington in a manner which shows me that you, as well as many other persons, have misunderstood my meaning. It has been supposed, and you seem to have supposed, that I said that an understanding existed between the British and the American negotiators that the claims for indirect losses should not be brought forward; and it has 1 'The American Commissioners,' &c. Washington Government Printing Office. 1872. P. 11. 1871.] LETTER TO LORD DERBY. 9 been inferred from this that we, relying upon that understanding, were less careful in framing the treaty than we should otherwise have been. This is incorrect. What I said was, that we had represented to our Government that we understood a promise to have been given that no claims for indirect losses should be brought forward. In so saying, I referred to the statement voluntarily and formally made by the American Commissioners at the opening of the conference of the 8th of March, which I, for one, understood to amount to an engagement that the claims in question should not be put forward in the event of a treaty being agreed on. "I will not enter into a discussion of the grounds upon which I came to that conclusion, but will simply say that we never for a moment thought of relying upon it, or upon any other matter outside of the treaty itself. We thought, as I still think, that the language of the treaty was sufficient, according to the ordinary rules of interpretation, to exclude the claims for indirect losses. At all events, we certainly meant to make it so. I remain, yours very faithfully, STAFFORD H. NORTHCOTE. "The Earl of Derby. "Perhaps you will kindly read this in the House of Lords to-morrow." The conclusion of the matter then, is, that neither Lord de Grey nor the other Commissioners had the faintest intention of using language which admitted the indirect claims.1 But what Sir Stafford meant, in his Exeter speech, by saying "whether the time will ever come for speaking fully upon the matter, I do not know," is a question which may still puzzle us. His letter refers 1 This letter to Mr Fish explains Sir Stafford's position : “MY DEAR MR FISH,-I had hoped that it would be unnecessary for me to refer again to the vexed question of the understanding upon which the Treaty of Washington was negotiated; but the correspondence on the subject of my 'statement' before the Exeter Chamber of Commerce last May, which has just been published by the United States Government, appears to call for some notice on my part. I write now, as I spoke then, solely on my own responsibility, and without communication with my Government or my late colleagues on the Commission. "When I said that we, the British Commissioners, were responsible for having represented to our Government that we understood a promise to have been given that what are called the indirect claims were not to be put forward by the United States, I meant to convey to my audience that I thought that our Government must have inferred from our communications with them that we understood such a promise to have been made by the American Commissioners. I did not think it right at that time to go further into particulars; but subsequently, in my letter to Lord Derby of the 5th June, which is included in your correspondence, I explained that the occasion to which I referred, as that on which I supposed the promise to have been made, was the conference of the 8th March 1871. "You say, and all our American colleagues on the late Commission say with you, that no such promise was made on that occasion. I of course unhesitatingly accept your assurance that it was not your intention to make one, and that you did not consider that you had made one. I cannot, however, admit that there was anything unreasonable in the precisely opposite inference which I, at all events, drew from what passed on that day, confirmed as that inference was by our proceedings on several subsequent days. "You will remember that it had been arranged that on the 8th March the American Commissioners should state their case with respect to the Alabama and the other vessels. This you did in a written paper, which you read out to us, but which you did not hand in as part of the proceedings. It was to the effect that, besides the direct losses occasioned by the 1871.] LETTER TO MR FISH. 11 to the protocol only- to what did his speech refer? Apparently to some more "personal question," which neither his diary nor his correspondence elucidates. He says in a letter from Washington to Mr Disraeli, “I wish I had some of your power of reading character cruisers, and the cost incurred in their pursuit and capture, it was believed by the United States Government that they had also a good and equitable claim for indirect or constructive losses. These latter, however, you did not prefer; and you stated that your not doing so must be regarded as a great concession. You then proceeded, still reading from the paper, to propose that the Commissioners should endeavour to agree upon a gross sum, to be paid by Great Britain in discharge of the claims of the United States; and you went on to say, still reading from the same paper, that, should the Commissioners be unable to arrive at an understanding for such a payment, the American Commissioners would be willing to refer the liability of Great Britain to some competent tribunal which should be empowered to assess damages. You added, however, that they would at the same time expect that certain principles of international law should be laid down, to be applied to the decision of the claims of the United States, whether those claims were considered by the Commission or by such a tribunal as had been mentioned; and you propounded four articles containing the principles which you desired us to adopt. Of those four articles you gave us a copy, and we then retired for the purpose of considering your proposal in both its branches. "Whether I was technically right in speaking of the declaration thus made as a promise' is a question which I will not discuss. I can only say that my impression at the time was, that you were proposing to us two alternative methods of settling the direct claims, coupling your proposal with the announcement that if either of the alternatives were adopted, the indirect claims would not be preferred. If this was not the meaning of the statement, I am at a loss to understand why the expression with regard to those claims was used at all. Of one thing I feel perfectly confident, that there was nothing in your proposal which could lead us to suppose that the indirect claims were to be waived in case of the adoption of one of your alternatives, and not in case of the adoption of the other. The proposal was made as a whole, without our interposing a word, and the four rules, which you handed to us, were stated by you to be rules which were to govern the decision equally, whichever mode of settlement |