§ SIR CHARLES ADDERLEY
, in rising to call the attention of the House to the Treaty of Washington, 1871, and to move for "Address for Copy of Correspondence between Her Majesty's Government and the High Commissioners 862 during the late negotiations at Washington," said, he was sorry that so important a discussion as he now wished to introduce should come on at such an hour (nearly half-past 5). He also greatly regretted the delay which had occurred in that House having an opportunity of expressing its opinion on the Washington Treaty. It was, however, better that the House should express an opinion on that Treaty even now, than that it should express no opinion upon it at all. If the House were to take no notice whatever of the late Washington Treaty, what would be the opinion of the world as to the view taken by this country of that negotiation? All that would appear to the world, and all that would appear to those who were about to arbitrate on the subject, as indicating the feeling of this country in regard to the Treaty would be these three facts—First, that Her Majesty had conferred almost the highest honour on one of the Commissioners who negotiated it; second, that the other House of Parliament had refused to endorse a Resolution condemnatory of the Treaty; and, third, that the House of Commons had apparently given its perfect satisfaction by total silence. It would evidently be deemed, from those three facts, by the arbitrators, and by the world at large, that this country thought it had gained a signal triumph and made an extraordinarily good bargain for itself and for its colonies, whereas, the fact was that this country had made an enormous concession in the interests of peace. Now, it could not be too late to consider that subject in that House, or, if it were, it was equally too late when it was discussed "elsewhere;" for it was then remarked by one of the highest authorities who took part in the debate, that the Treaty was already in honour binding, as accepted by Her Majesty's Plenipotentiaries. It was, important, therefore, that the House of Commons should also express some opinion upon that Treaty, seeing that the arbitration was still before them, and would soon commence—the possible burdens thrown on the taxpayers of this country were still before them; and, what was still more important, novel rules of International and Maritime Law were proposed to be established, and it would be strange if the representatives of a commercial people like ours did not think it was worth 863 while even to give any opinion upon the imposition of new liabilities on neutral Powers. In opening the subject, he would state, as briefly as he could, the view he took of the conduct of the Government in prosecuting the Treaty; and the reflections he wished to make, impugned the Instructions of the Government, and did not at all impeach the Commissioners for the mode in which they carried out those Instructions, nor did he wish to find fault with all the terms of the Treaty itself. The circumstances which first led to the negotiations were simply these—At the end of last year, apparently, Lord Granville thought it necessary to instruct Sir Edward Thornton to urge on Mr. Fish, as absolutely necessary for the maintenance of good relations between the two countries, that there should be a Conference on the subject of the Fisheries. It was proposed that the Conference should be held at Washington, by Commissioners to be appointed by both Governments. In January the subject was opened by Sir Edward Thornton to Mr. Fish, who, on the part of the President, accepted the proposal, on condition that the Alabama claims should be added to the subjects of the Conference. Within 48 hours Sir Edward Thornton cordially thanked Mr. Fish for so accepting the proposal, and acquiesced in his condition, further adding to the subjects of Conference the claims of British subjects on the United States, and of American citizens against the British Government for damages received in the war. That was agreed to; and the Commissioners were immediately appointed. Now, on these preliminaries, he ventured to make this remark—he thought it unfortunate that this country was made a petitioner for a Conference the subjects of which were of far more importance to America than to us. The dispute about the Fisheries, for instance—which country was most interested in its settlement? The country in possession, and whose rights were undoubted to exclude others from the waters, or the country which wished to be admitted to a share of those rights? He did not mean to say that it was desirable the then state of the Fishery question should continue. Far from it. After the cessation of the Reciprocity Treaty in 1864, on the motion of America herself, the United States fishermen were admitted to Canadian waters upon licences; but 864 these were so difficult to enforce that the exclusion of unlicensed fishermen required an armed Canadian flotilla. Of course, a better settlement was desirable than then existed, but not primarily on our side. We were the grantors, and ought not to have been made the petitioners. If that was the case with reference to the Fishery question, how much more so was it the case with the Alabama claims, in the settlement of which, as he considered, America alone was interested, for England had confessedly cleared herself of all interest in the settlement of that question? The claims had been utterly discredited by the exaggeration of the Americans themselves in the person of Mr. Sumner. The sober, thinking men of America had tacitly admitted that we stood well in the matter, and the American Government had virtually confessed it by their refusing arbitration when it was first offered, on the simple question agreed to by Mr. Reverdy Johnson whether we had fulfilled our obligations at the time. He must say, without any reflection on the statesmen of that great country, it was an unfortunate result of their democratic institutions that they must always have some election cry, and no cry was so effective as a cry against England. Could there be a better American election cry against England than this—raising claims with reference to which we stood so clear in the eyes of the world? He had only one other remark on the mere incidental features of the negotiation to make in passing. It appeared, as he complained, that from the moment when the negotiations began the subject which was added to the terms of the Conference—the Alabama claims—became the principal one; while the Fishery claims, for which the Conference was originally proposed, became subsidiary, and assumed a very minor part in the progress of the negotiations. As to the Treaty itself, he would remark, as to the personages chosen to nominate the arbitrators, the Americans had certainly no reason to complain of them. The Emperor of Brazil, both by recent events and his position of neighbourhood, was not likely to be unfavourable to the Americans; and the President of the Swiss Republic, by the nature of the institutions of his country, was not likely to be unsympathizing with the Americans; while the place where the arbi- 865 trators were to meet — Geneva — was about as favourable to the Americans as the City where the negotiations were begun—Washington. We had boldly surrounded our altar as it were with trenches of water, so that no one could say fire from Heaven came down upon it by any unfair advantage. Now, with reference to the Instructions to the Commissioners, they referred to nine heads of subjects, which he had for economy of time collected under two groups, as follows:—1. War claims between England and America, comprising those made on account of the Alabama; those on account of British subjects against America arising out of the Civil War, and vice versâ; and connected with these war claims were the new International rules, or revision of the law of maritime neutrality. 2. Canadian claims, comprising claims on America on account of the Fenian raids; those on account of the Fisheries; those on account of Trade; and, finally, those on account of boundaries. In that division, or reduction of subjects under the two heads named, he did not by any means intend to separate British from Canadian interests as distinct things, but only proposed a convenient local classification. A common Sovereign made the Treaty in the names and by representatives of both divisions of her subjects united in common Imperial interests and speaking to America as one nation. Canada was most of all the British Empire interested in a settlement of the Alabama dispute; and England was, in common with Canada, deeply interested in her Fisheries, boundaries, and trade. The understanding throughout the negotiations was that one and all points of settlement were to stand or fall together. England was not to settle her interests without Canada; in short, the two were considered one, as they ought to be. He now proceeded to discuss the Treaty itself. To begin with the Alabama claims their reference to arbitration was not new. They had been proposed for arbitration in the Convention signed by Lord Clarendon and Mr. Reverdy Johnson. What were the terms of that reference?—"Whether England had fulfilled her obligations at the time the Alabama sailed." The American Senate refused to consent to that arbitration. Why? Because it was too certain that impartial arbitrators must 866 have said we had fulfilled all such obligations, even according to the strict interpretation of our own municipal law. But now America accepted arbitration. Why? Because of a very significant change made in the terms of reference to which Her Majesty, as a concession to friendship, had agreed. The reference now proposed for arbitration was, whether England, in 1861, had fulfilled international obligations according to new and stricter terms drawn up in 1871. The proposition, put abstractedly, was, that in a judgment of mutual obligation rules of interpretation should be adopted different from those on which the obligation rested. When the Americans rejected the first arbitration they put themselves in the wrong; and they eagerly accepted new terms, hoping to put us in the wrong. It was on these terms that we had consented to refer the claims. It had been said that no rules had been laid down of International Law at the time, and therefore it was necessary to put in terms some rules by which the arbitration should be guided. But the language of the Commissioners in conference struck that ground of excuse from under them; because they admitted distinctly that the rules on which the arbitration was now proposed did not exist, and were not in force at the time—that the principles on which the new arbitration was agreed on were not in force at the time the Alabama sailed, and therefore that the new terms were not an interpretation, but an innovation. He would not attempt to discuss himself the proposed revision of International Law; he should be glad rather to have the opinion of the hon. and learned Member for Richmond (Sir Roundell Palmer) on that subject. Different views were taken of these new rules. Some argued they would be good for England for the future; but the reason they gave was because England was likely always to be a belligerent. He hoped that was not true, and it would be a bad reason if it was true; for law should not be shaped to meet accidental interests, but based on sound general principles. Others, on the contrary, said they were retrograde rules on principle, as increasing the liabilities of neutrals, and to such an extent as to be often impracticable, especially for a scattered colonial Empire like that of England. Those persons thought with Lord Palmerston, that if 867 two nations were such fools as to knock their heads together, it was no reason that all the wiser nations should embarrass their commerce, and turn spies upon their merchants, merely for the protection of fair play between the belligerents. Great concessions, in mitigation of the risks of war, to the convenience of neutral commerce, were made by the Declaration issued from the Congress of Paris, 1856, saving enemies' goods under neutral flags. If that indicated the tendency of recent revision, the new rules in the Treaty were certainly retrograde. But it mattered very little to the present argument what the merits of the new rules might be; what he asked was whether it was wise or an act of self-stultification to offer ourselves to be tried as to the fulfilment of a legal obligation by rules different from those on which the obligation itself rested? By the new rules it was stipulated that "due diligence" should be given by neutrals to stop privateering from their own ports. Did not that new version imply that what satisfied the old principles was something that the new would make "due diligence"—that the "diligence" demanded by the old principles of maritime neutrality was below the new standard? The change was a restriction of the rules by which we had been virtually acquitted, and a chance was sought of a verdict against us. He believed that even on these stricter rules we should stand clear, and it would be distinctly proved that we fulfilled all the obligations which even they would impose. But that did not at all justify the proceedings by which they had sacrificed themselves for the avowed object of friendly relations with those whose avowed object was our sacrifice. The friendly relations of simplicity with shrewdness might be more intimate than sound. He knew it was said by some that whether it was an act of self-stultification or not, it was liberal, and that it was the highest of national duties to promote the interests of peace—that the barbarism of readiness to take offence and to stand on points of honour was alike in public and private life giving way to the more generous and wiser sentiments of civilization, and the wider influence of cosmopolitan intercourse; that magnanimity became great nations, and that if England could not afford to be magnanimous, who could; and that England 868 might even teach a nation she had herself so lately brought into the world how to conduct herself worthily of so great an origin, and not with the restless sensitiveness of a parvenu. But there were limits beyond which magnanimity became folly, subjecting those who passed them to suspicion of want of proper spirit and self-respect. Extremes met; and when they stood pretty clearly in the right, to agree to change the standard of right in order to give opponents a better chance of putting them in the wrong, expressly to please those who wished to do so, the extreme point of magnanimity was passed, and the sublime had become ridiculous. With respect to the other war claims—namely, those of British merchants on the United States, and the claims of the United States on England for damages during the war—there was only one question he had to put, and that was put by Lord Cairns in "another place," but had received no answer. That question was why there was a limit of time for claims both of American citizens on Great Britain and for claims of British subjects on America for damages to person or property during the war—observe the significance of even the little circumstance of the order in which these claims are mentioned, first American, then British—while there was no limit of time put on the Alabama claims. The claims of British merchants for damages in war must, according to the XIIth Article of the Treaty, be solely in reference to damages received between the 13th of April, 1861, and the 9th of April, 1865, which latter date was at least six months before the end of the war. But there was no such restriction on the Alabama claims. The only answer made by the noble Earl (Earl Granville) was that, no doubt, the American Government would fairly acknowledge any further claims for damages after that date, and that American merchants claims were more strictly defined than British by a definition of them as "claims arising out of the war." Earl De Grey said that he thought British claims would be held all the stronger for damages after the termination of war, owing to the limit fixed, beyond which war ceased to be any excuse. But that was no satisfactory answer; the question remained to be answered, why a limit was placed against us and none against the other side, and 869 the hopes of the two noble Lords would avail little to modify a Treaty. He now proceeded to the second and last group of subjects — namely, the Canadian claims. First of all there were the Fenian claims. It seemed to him there was no possibility of defending the course which Government had instructed the Commissioners to take on the subject of the Fenian claims. Whatever gave weight to the Alabama claims gave tenfold weight to the Fenian claims. With regard to the Alabama, the question was whether the British Government had watched with due diligence her warlike intentions, and her escape for such purposes. He (Sir Charles Adderley) said they had, but if there had been the slightest failure of due diligence, he asked them to compare their loyal conduct with the fact that 50 regiments of Fenians drilled publicly for months on the American borders, avowedly for the purpose of invading Canada, their meetings, designs, and preparations known and winked at by the American Government, which excused itself from interfering by reasons plainly evincing a fear of electioneering loss to themselves. Consider the claims, identical in nature with what the Alabama claims would be if they could be substantiated, which were at once conceded to America and paid by Canada, when even Confederate Americans made a raid out of Canada on the Bank at St. Alban's, in Vermont. The only reason assigned for not insisting on compensation exactly of the same kind as had been conceded the other way, and enforcing a claim compared with the clearness of which the Alabama claims were as a shadow, was that America would not listen to it. Stet pro ratione voluntas. The only excuse on our side offered for not pressing such a claim was as futile as the reason of the Americans for resisting it — namely, that the amount of compensation claimable would have been very small. The mischief, however, of such weak concession was not the immediate loss, but the invitation to unlimited assumption in future. The second Canadian claim related to the Fisheries. On that subject, which was the sole topic on which they asked for conference, it was wrongly imagined that the Canadians had a special veto left to them. Such was by no means the case, for all three Powers had equal power of veto on all the Treaty, and Canada no 870 more than themselves; all three would have to legislate on some points essential to the carrying out of the Treaty, and therefore might cause its rejection. He must say he did not wonder at the sensitiveness exhibited by Canada on the subject of the Fisheries. The Fisheries were of enormous value to Canada. Their value had been greatly increased by improvements she had herself carried out. They were the best nurseries of seamen in the world, destined, he hoped, to furnish one day a great Canadian Navy. The greatest interest of the Dominion was its marine and Fisheries. They did well to consider them the primary subject of this negotiation, as they had done; but the right line of negotiation was not so clear, for one thing only was certain—they could not remain as they were. American fishermen once admitted could scarcely be made to pay licences, still less kept out by an armed Canadian flotilla; the question was, therefore, on what terms they should freely fish in all Canadian waters. Licences clearly were impossible, and exclusion still more clearly so, and the terms mentioned in the Treaty seemed to be the only ones upon which an arrangement could be made — namely, that all the seas being open equally to both countries, the difference of value should be estimated between them, and the possessors of the least valuable Fisheries should compensate by paying the difference. The Canadians would always have an advantage from fishing in their own waters, their trade being already established, and closer to home. They had superior waters, and that they would not lose their advantage by a common right of fishery. Canada seemed to have become mystified by long-continued controversy until she had identified in her own mind the Reciprocity Treaty and the Fisheries as if they were inseparable subjects. Good, however, might be done by lookers on, who, not being prejudiced by the long controversy, could take a clearer view of the matter, and see that there was no inseparable connection between those subjects. The Fisheries were valuable in themselves, and should not be shared without adequate payment; but to sell them for free trade would be to sell them for nothing, because free trade could be, would be, and was certainly being otherwise secured. Already it was working 871 its way steadily forwards and irresistibly. The Treaty, moreover, secured free admission of Canadian fish into America, the largest boon that reciprocity could attain. Coal and salt were on the eve of following, and lumber must follow in their wake; and even if that were not so, in many articles America was so dependent upon Canada for necessary imports, of which Canada had a practical monopoly, that whatever the tariffs might be, the American importers necessarily paid the whole duty they put on such imports. Those who put an end to the Reciprocity Treaty in the middle of the American Civil War, when there were no Members for the Southern States in Congress, did so not from Protectionist views but rather from an idea in the minds of the Northern States that the termination of that Treaty would so embarrass Canada as to lead to annexation. In that they had been entirely disappointed, for the cessation of that Treaty had done infinite good to Canada, having stimulated her to find a large foreign trade for herself, independent of the Americans. The trade with America also had rapidly increased since the cessation of that Treaty, from increasing wealth and population, and, as he had before observed, America in imposing duties on many articles was injuring Canada much less than herself. The Canadians were mistaken in connecting the revival of the Reciprocity Treaty with the opening of their Fisheries, which should stand entirely on its own merits. He thought, however, it required explanation, why the Commissioners were instructed to refuse such instalments of free trade as America had offered, although on the whole he was not without hope that Canada would find the terms of the Treaty were much more favourable to her than she at first imagined. The money compensation ought to balance the different value of the Fisheries, in addition to which the free admission of their fish to the American markets was of such paramount value that it had already reconciled the maritime Provinces to the Treaty. In fact, objection seemed now to come only from the Upper Provinces, and Newfoundland has formally voted its approval. There were also to be considered the trade arrangements, such as the opening of the St. Lawrence below the 45th parallel of latitude, but that 872 was nothing new, beyond its being made a matter of Treaty. The river was already open, on sufferance, throughout. Again, on the Canadian canals Americans paid only the same dues as the Canadians. Of course, if war broke out, it would be in the power of Her Majesty to close the passage of the St. Lawrence and of the canals to the Americans. On the other hand, the opening of Lake Michigan to the Canadian merchants was of very great importance, because on the south of that lake was that great emporium of Middle America—Chicago—and no greater advantage could be secured to the Canadians than the free navigation of that lake, in addition to which there was the concession of the coasting trade with the ports on those lakes. With respect to the boundaries he had nothing to say, because any such dispute was only to be settled by arbitration, and to the arbitrators he could offer no objection. With regard to the San Juan, he heard that documents had recently been discovered which would tend to the maintenance of the British claim on that boundary. On the whole, he was of opinion that the Government ought to offer some defence of their conduct with regard to the negotiations on all the following points—first, the mode in which they initiated this Conference; secondly, their permitting the substitution of the Alabama claims for the Fishery question as a primary topic of conference; thirdly, their consent to the setting up of new rules for the arbitration as to our fulfilment of obligations different from those on which the obligations rested; fourthly, the obvious inequality of foregoing on our part similar and much stronger claims for Fenian outrages; and lastly, the unfair limit given to closing the claims of British merchants, whereas no limit was given to claims against ourselves. On all these points the House should receive information from the Government, who ought to defend the Instructions they had given to the Commissioners whom they had sent to Washington. At the same time the House would, he believed, express a feeling which prevailed throughout the country by saying that, apart from any mistakes in the process of negotiation, it was the cordial and unanimous wish of this country that those negotiations might end in cementing permanent peace and 873 goodwill between the two countries, and in removing any irritation or causes of future dispute between two kindred nations that ought to go hand in hand in promoting the prosperity of the world. However wanting in equity might have been the negotiations on some points, he hoped the mistakes of administration would not hinder kindly relations between these two countries, but such relations would best rest on mutual self-respect. The right hon. Gentleman concluded by moving the Resolution of which he had given Notice.
Motion made, and Question proposed,
That an humble Address be presented to Her Majesty, praying that She will be graciously pleased to give directions that there be laid before this House, a Copy of Correspondence between Her Majesty's Government and the High Commissioners during the late negotiations at Washington."—(Sir Charles Adderley.)
§ SIR ROUNDELL PALMER
* Sir, it must be satisfactory to the House to find that on the colonial branch of this subject, on which the right hon. Gentleman (Sir Charles Adderley) is entitled to speak with the greatest authority, the Treaty of Washington in entirely approved by him. I feel indebted to the right hon. Gentleman for having—with the assistance of Government—brought the subject forward, because I cannot think that it would have become the House to separate without devoting some time to a review of this matter. Personally, I take the deepest interest in it; because I was a Member, though a subordinate one, of the Government during whose tenure of office there arose many of the transactions out of which this Treaty sprung; and also because I, in common with every British citizen, desire that the honour of this country in all public matters may be maintained; that in all arrangements growing out of disagreements between this and other countries there should be taken due measures to obtain security for the future; and, of course, if it be possible, that cordial goodwill should subsist between ourselves and that great country on the other side of the Atlantic which has sprung from us. On our side that goodwill has subsisted without interruption, and the difficulty to many of us in forming a sober estimate of those transactions is increased by the wonder how it should be possible that our feeling towards the United States should be mis- 874 understood by them. There has never been a time at which we should not have been willing to make great sacrifices in order to maintain cordial relations with the United States; but no sacrifices are worthy of a great nation, or can really tend to the maintenance of cordial relations, which involve in any degree a compromise of public honour. Nor would it have been consistent with wisdom to enter into any arrangements for the removal of present differences, unless regard were had to the future, or unless there were a likelihood of their containing securities against future disagreement. Regarding, in the first place, the considerations connected with our national honour, I cannot look upon that honour as compromised by what has been done. Even taking the lower ground of the honour of the Government, of which I was a Member during the American War, I am unable to see that its honour or credit has been at all compromised. If I thought that it had been, I could not have expressed any acquiescence in the arrangements which have been made. I believe that Lord Palmerston's Government did nothing during that critical period, but what was thoroughly honourable and upright. That which has been made one of the main subjects of criticism is, to my thinking, one of the most satisfactory points of the Treaty—namely, that, while consenting to certain rules for the future, and allowing them to be applied as rules of judgment with respect to the past, we have guarded ourselves against being supposed to admit that we can be charged with any actual failure in the performance of our public duty, even if it should appear to any arbitrator that, being tried by those rules, our conduct at that time was in any respect wanting. We have distinctly declined to admit that those rules had any existence as rules of international obligation between ourselves and the United States at the time of these transactions; so that if an award on those principles, considered as established on the footing of international compact, could be made against us, it stands on record that we have not admitted anything derogatory to our honour, as to our having been at that time under such obligation as between nation and nation. I desire to place before the House—and I will endeavour to do it quite fairly and temperately—my view of the transactions during the Ame- 875 rican Civil War, which, so far as the differences on that subject are concerned, have led on the part of this country to the arrangement in question. If the present moment is not favourable to a complete appreciation of our conduct, I do not doubt that history will do justice to it; for there never was, in my opinion, a more honest, fair, true, or consistent neutrality professed or observed by any nation, than that which we observed during the American Civil War. It should be remembered that nations are represented by their Governments; and in a free country there must of necessity be various feelings and interests, and great freedom in the expression of opinion. Englishmen do not impute ill-will or wrong to the United States because there may appear in their newspapers or circulate in their society language which seems to be inconsistent with a kindly feeling; because we know well how to distinguish between the public attitude and conduct of a nation and the freedom of individuals composing it, and we have a right to hope and expect that the same judgment will be applied to ourselves. Tried by this test, the course taken by the Government was, from first to last, one of strict, honourable, and loyal neutrality. The first thing they did was to issue a Proclamation of Neutrality, for the purpose of making it understood, that we meant to submit to the exercise of belligerent rights on the part of the United States against those of our citizens who might be found guilty of running blockades or of introducing contraband of war, and, at the same time, of warning our citizens that they would be subject to those penalties. So far from that being an unfriendly act, the moment the war actually broke out it was a duty that we owed, both to the Americans and to ourselves, to issue such a Proclamation. To say that we were not to recognize the Civil War as a fact, and to make it known that we acknowledged the rights of war when they were asserted against us, was difficult for us to understand. Yet for a long time that was made the head and front of our offending; but it has now disappeared from the category of imputations. The next step of the Government was to issue rules against the use of our ports and waters as places of hostile operations. We would not allow any ships of war, belonging to either belli- 876 gerent, to remain for more than a limited time in our ports, nor would we allow any pursuit or attack to be initiated in our waters, or prizes to be brought in, or supplies of coal or other articles to be obtained, except within certain narrow limits which international hospitality prescribed. The Government thus prevented our ports or waters from being used as a base of hostile operations. The next question was, whether we should recognize the blockade of the whole seaboard of the Union, there being a great difficulty in maintaining it, especially at the commencement, and numerous questions have been raised as to its vilidity. Other neutral Powers on the Continent had been angry when we had established blockades in former years, and they were much dissatisfied with the decisions of Prize Courts in enforcing them. Great urgency was used with our Government to refuse to recognise the blockade of the American ports, with its unavoidable infirmities, especially in the early part of the war; but England declined to adopt that course, and stated that she would, when a neutral, abide by those rules which she had laid down for others when she was a belligerent. The war continued for a long time; during which the pressure of the blockade upon our commerce and manufactures was very severe; and many of our ships were captured and condemned, either for breach of blockade, or for carriage of contraband to the Confederates. Several of these captures, and the decisions maintaining them, were of a questionable character; but our Government adhered strictly to the principle on which they acted at the outset, and did not, in any instance, interfere with the free action of the American Prize Courts. During the progress of the war, the Confederates organized the forms of a regular Government, and maintained, for a long time, so vigorous and effective an opposition to the North, that many persons on this side of the Atlantic thought they must ultimately succeed in establishing their independence. Under these circumstances, both in this House and out of it, and on the Continent of Europe as well as in this country, overtures and suggestions were made for the recognition by us of the South, which had, so far, established its own Government. It is not for me to say whether there were, or were not, good grouds for assertions which were 877 confidently made, and for a belief which was very commonly entertained, that the adoption of that policy was urged upon us by at least one very great Power upon the Continent. But all those suggestions were steadily resisted by our Government; and in every public act that Government not only maintained an attitude of neutrality honourably and with integrity, but they did so in as friendly a spirit as was consistent with the nature of that neutrality towards both the branches of that great country, which we were sorry to see at variance with each other, and whose reconciliation was the thing we most desired.
I now come to the subject, still, I am sorry to say, in controversy between the two countries, of the ships, in respect of which claims are made against us by the United States. And first I will speak of the state of the laws of both countries bearing on that subject. Our own Foreign Enlistment Act, which was then in force, was originally founded upon the precedent of the corresponding law of the United States, upon which it was, unquestionably, an improvement. One of the ablest of the American writers on this subject, Mr. Bemis, although not friendly towards us in this controversy, admitted the great defects of their law, even in comparison with ours. It should be remembered, that during the progress of the war, in 1862–3, our Government made overtures to the Government of the United States for a revision of the neutrality laws of both countries; and those overtures were received with courtesy, and even with an expression of satisfaction; but still with the distinct statement on the part of the Government of the United States, (as the conversation was recorded at the time by Lord Russell,) that they "Did not see how their own law on that subject could be improved." Mr. Adams himself reported his words as being, that his Government thought their own law "of very sufficient vigour." Clearly, therefore, they did not call upon us to make an alteration of our law; because they thought their own law, which was of inferior stringency, sufficient; and when formerly pressed by Spain, in 1818, to make that law more stringent, they had expressly declined to do so. The law of the United States was inferior to ours in this cardinal point—that it coupled the arming of ships within the jurisdiction 878 with the fitting them out, in such a manner that it would be hardly possible for them to stop an unarmed ship. This was done in the prohibitory clause in three places: it was done twice (without any qualifying context), in the clause under which power was given to the Executive to take possession of offending vessels; and the bonding and detaining clauses spoke only ofarmed ships or vessels sailing out of the ports of the United States, belonging wholly, or in part, to citizens thereof,and of vesselsmanifestly built for warlike purposes, and about to depart to the United States, of which the cargo should principally consist of arms or munitions of war.The Alabama would not have been an offender against the United States' law, according to any ordinary principles of construction; and certainly she could not have been stopped under the detaining clauses of that statute, because she went out unarmed and received her armament elsewhere. The United States, therefore, must have thought our law sufficiently stringent; and they did not press us to alter it, although our Government, if they had thought both it and their own insufficient, would have been anxious to improve and strengthen it, as has since been done. But this was not a task which the Government, under the circumstances of that time, could prudently undertake, without a concurrence of opinion on both sides of the water as to its necessity; especially as the opinion, which our own Lord Chancellor had expressed as to the efficiency of the English law, happened to agree with that which Mr. Adams was instructed to declare, on the part of his Government, as to the law of the United States. If any proposal of that kind had been made in Parliament without being carried, it certainly would not have improved the situation of affairs. Such a state of the neutrality laws of both countries must at least be accepted as negative evidence of what they then understood to be the measure and limit of their obligations. It was not to be supposed that the United States, having made their original law in 1794, and their present law in 1817, when the wars between Spain and Portugal and their revolted colonies were going on, could have considered that any obligation rested upon them to go beyond what they were enabled to do by 879 that form of law. Our own view was this—We did not conceive that anything in our Foreign Enlistment Act rested upon any previously known international obligation; we conceived that it rested upon our own legislation, which was designed to enable ourselves the better to vindicate and enforce within our own jurisdiction our own neutrality; and there can be no doubt that the great writers and politicians of the United States always took substantially the same view of the matter. We did not for a moment say that the United States had not a right to call upon us bonâ fide to put in force our own law for the preservation of our neutrality; we distinctly admitted they had that right; but we said they had it upon the footing of a friendly State, asking us to enforce our own laws, and not upon any footing prior, paramount, or superior to our own laws; that they must seek to have that law enforced, as all other British laws were enforced, according to our own system of jurisprudence; and that it must be applied in cases where evidence was forthcoming, where juries and judges would say, or where at least there was a fair probability that they might say, it had been infringed. We could not suppose they would imagine it was their right to ask us to act arbitrarily, as if we were not a people governed, like themselves, upon the principles of freedom, by Parliaments and by laws. In this state of things we recognized their right to call upon us bonâ fide to the best of our power, by the use of all the means which the law gave us, to stop proceedings of this kind, the fitting out of these ships. We undertook to do this, in all the diplomatic communications upon the subject which passed between our Government and that of the United States: we at all times professed our determination to enforce our own law, according to the construction put upon it by our own Law Officers; and the construction put upon it at that time, though undoubtedly questionable, was that most favourable to the United States, which made the arming of ships within this jurisdiction not essential here, as it seemed to be under the United States Act, but which considered the fitting out of a ship for warlike purposes, with a view to her being afterwards employed as a cruiser or ship of war in the service of one of the belligerents, as sufficient to warrant 880 interference. The position, now embodied in the first rule of the Treaty, that a vessel ought to be treated as an offender, if she was "specially adapted, wholly or in part, for warlike uses within the jurisdiction," was very much in controversy before the Court of Exchequer in the Alexandra case; in which two Judges declared that the large and beneficial construction of the law on which we always acted was right, two that it was wrong, and the judgment of the Court, in point of form, was with those who thought it wrong. Nevertheless, the Government, being advised that the larger and more favourable view was the right view, continued always to act upon it. I mention this, because the first of the three rules now adopted, even though it may not coincide with the view which some lawyers took, does coincide with the view which the Government itself took of the measure of our own self-imposed obligations.
I come now to what we did, and what we are accused of having left undone, in this respect. We stopped altogether five ships; the Oreto, afterwards called the Florida, at Nassau, which was acquitted there, and which was never armed till she had been in the Confederate port, I think of Mobile or Wilmington; the Alexandra, which was stopped twice, once here, where she was acquitted, and afterwards again at Nassau, where she remained under detention at the end of the war; the Pampero, which was seized in the Clyde, and condemned, and the two rams, which the Government, eventually purchased for a large sum, though not more than their value, rather than run any risk of failure at the trial which would otherwise have taken place. It is however, a total mistake to suppose, that in the case of the two rams there was any assumption of power beyond the law; because the Government acted on evidence which they thought to be sufficient. The ships which we did not stop, and which were afterwards employed by the Confederates against the United States, were three only; the Georgia, the Shenandoah, and the Alabama. In the cases of the Georgia and the Shenandoah, nothing was done within British jurisdiction; or, if anything was done which could have been treated as an offence against the law, no information of it was ever given to the Government. The Shenandoah had been the Sea King, a 881 trading-steamer, and was not even suspected by anyone in this country; it was not until she had got into or beyond Portuguese waters that she received any armament. The Alabama was officered by Americans, and armed at the Azores. She was built here to order, as an article of merchandise, under a contract with agents of the Confederates, and was not so equipped as to be capable of hostilities when she sailed from this country. A month elapsed between Mr. Adams's first communication with Lord Russell on the subject of that ship, on the 23rd of June, 1862, and the transmission by him to the Foreign Office of any evidence in support of it, which was not done till the 22nd of July; the Board of Customs being in the meantime unable to obtain any information on the cardinal point of the destination of the ship. Only one of the depositions sent by Mr. Adams on the 22nd of July contained really material evidence on that point. Two more depositions were sent (with Mr. Collier's opinion of the 23rd July) in another letter from Mr. Adams, dated the 24th of July, which was not received at the Foreign Office till Saturday, the 26th. On Monday, the 28th, these Papers were considered by the Law Officers of the Crown; on the same evening their Report was agreed upon, and it was in Lord Russell's hands early on the 29th. Orders were then immediately sent to Liverpool to stop the vessel, but on the same day she escaped. I was supposed, on a former occasion, to have stated that this was not business to which the Law Officers could attend on Sunday; which I never did state. Of course the Law Officers of the Crown would attend to urgent public business on Sundays; but in this case the Papers received on the 26th could hardly have been sent to their offices until Saturday evening, and, in the ordinary course, Sunday would intervene before they practically received them. There was as much diligence as could reasonably be expected to be exercised in any important legal matters, either for the Government or for private persons, and there was, at least, sufficient to show that the Government acted with good faith. As to what followed, when any of these ships were in the hands of the belligerents, we did exactly what the United States had done under similar circumstances. When any ship had once been commissioned as a public ship of 882 war, by a belligerent Power over whom we had no jurisdiction, no proceedings or inquiry having previously been held within our jurisdiction as to that ship, we did not consider ourselves bound or entitled to refuse to allow her, like other ships bearing a similar commission, and under the same restrictions, to enter any of our ports. While the arbitration is pending, it would not become me to enter into detail, so much as I otherwise might have done, as to the concurrence of the authorities of the United States themselves in the principles upon which we acted. It cannot be wondered at, if we thought it a matter of national honour to act when we were neutrals on the principles we professed as belligerents, that we should expect the United States when they were belligerents to act on the principles they avowed as neutrals; and had they done so, this controversy would not have been so long kept alive. All their authorities on jurisprudence, anterior to the late Civil War, notably Wheaton, held that commercial dealings in ships of war, as in other contraband, were not prohibited by International as distinguished from municipal law. There is one passage, particularly, in Wheaton's History of International Law, in which he treats it as a perfectly clear proposition, that the sale and delivery of armed vessels by neutral citizens, within neutral territory, to a belligerent Power, is lawful, jure gentium During the French Revolutionary War, no one thought of holding the United States responsible for captures of British vessels on the high seas, not brought into their own ports, by privateers which the French had fitted out in the most remarkable manner in the ports of the United States, openly, and in defiance of the legal sovereignty of the United States themselves. The idea of holding them responsible for prizes not brought into the ports of the United States was never so much as contended for; and even as to those which were brought into their ports, they declined to be responsible for their restitution, when they had been brought in before a particular day in 1793, on which notice was given to the French Minister that he would not be permitted so to use the ports of the United States any longer. As to all brought in before that date, they declined responsibility; and our Government did not press it; as to all after, they undertook 883 to restore them; and in cases within the latter category, and within that category only, in which it was admitted that proper deligence had, intentionally, not been used, it was afterwards agreed by treaty to make compensation. Between 1815 and 1818, there was a controversy between Spain and the United States, with respect to ships fitted out in the ports of the United States which had committed depredations on the ships of Spain during her war with her colonies; and uniformly the United States maintained that they were not responsible for the captures made by those ships; that their only obligation was to enforce their own law upon sufficient evidence, and that failing the production of such evidence they were not responsible. This controversy closed in 1819, with a treaty which involved the cession of Florida, by which all claims on both sides were waived without prejudice to the attitude the United States had assumed. A similar controversy between the United States and Portugal was carried on from 1816 to 1850; during which, over and over again, the United States refused to refer any such claims to Commissioners; saying that there was no responsibility for captures made beyond their jurisdiction, even by their own citizens, and although the ships which made those captures had been fitted out and armed in their own ports. Surely this country cannot be considered as having acted otherwise than in a spirit of bonâ fide neutrality, when it uniformly professed to adhere to that measure of obligation, which the United States had, on these solemn and repeated occasions, laid down for themselves. I maintain that Lords Russell and Clarendon were perfectly justified, in the first instance in declining to go into any arbitration; they were only doing the very thing which had been done by the United States in the controversy with Portugal as recently as 1850. But the real truth of the matter is, that this country does not like to be at variance with the United States. Whatever might be the measure of our obligation—whatever the legal view of it, this country most deeply regretted that any ships should have escaped from our shores, and committed depredations on the commerce of the United States: and the people of Great Britain, generally, preferred to waive a strict examination of the question on legal and international grounds, 884 in order to get any settlement of it which which might bring peace and goodwill for the present, and security for the future. Those were the circumstances under which Lord Stanley negotiated the former Treaty with Mr. Reverdy Johnson; and when that step had once been taken, it became manifestly impossible to go back. While I do not wish to say a word against the part taken by Lord Stanley in negotiating a Treaty, which fairly expressed at that time the sentiments and wishes of the country, I have no hesitation in saying that I greatly prefer the present proceeding.
§ It being now ten minutes to Seven of the clock,
§ COLONEL WILSON-PATTEN
rose to suggest that, considering the importance of the subject and of the speech, and that it was so desirable to preserve the continuity of both, the Orders of the House might be a little strained, and the hon. and learned Gentleman the Member for Richmond permitted to resume his observations at 9 o'clock.
§ MR. BAILLIE COCHRANE
said, he had no objection to postpone the Motion which stood first in his name on the Paper, if the right hon. Gentleman at the head of the Government would pledge himself to give him an hour of the Tuesday Morning Sitting.
said, that with the present requirements of Public Business, he could not give the desired pledge.
§ Debate adjourned, till this day.
moved, That the House, at its rising, should adjourn to 12 o'clock on Saturday, and said that no Supply would be taken, but that the Bill relating to the Judicial Committee of the Privy Council would be considered.
§ Motion agreed to.
§ House at rising to adjourn till To-morrow.
§ And it being now Seven of the clock, the House suspended its sitting.
§ The House resumed its sitting at Nine of the clock.