Chapter IX

. Washington And Geneva. (1870-1872)

Although I may think the sentence was harsh in its extent, and unjust in its basis, I regard the fine imposed on this country as dust in the balance compared with the moral value of the example set when these two great nations of England and America—which are among the most fiery and the most jealous in the world with regard to anything that touches national honour—went in peace and concord before a judicial tribunal rather than resort to the arbitrament of the sword.—GLADSTONE.(254)

I

One morning in the summer of 1862 a small wooden sloop, screw and steam, of a little over a thousand tons register dropped slowly down the waters of the Mersey. The decks were rough and unfinished, but guests on board with bright costumes made a gay picture, flags were flying, and all wore the look of a holiday trial trip. After luncheon in the cabin, the scene suddenly changed. At a signal from the vessel a tug came alongside, the cheerful visitors to their surprise were quickly transferred, and the sloop made off upon her real business. She dropped anchor in a bay on the coast of Anglesey, where she took twenty or thirty men mostly English on board from a tug sent after her from Liverpool, with or without the knowledge of the officials. Thence she sailed to the Azores, where a steamer from London and a steamer from Liverpool brought officers, armaments, and coal. As soon as these were trans-shipped, the British ensign was hauled down, the Confederate flag run up, and the captain opened sealed orders directing him to sink, burn, or destroy, everything that flew the ensign of the so-called United States of America. These orders the captain of the rover faithfully executed, and in a few months the _Alabama_—for that was henceforth her memorable name—had done much to sweep the commercial marine of America from the ocean.

(M129) On the day on which she sailed (July 29), the government made up its mind that she should be detained, on the strength of affidavits that had been almost a week in their hands. The bird of prey had flown. The best definition of due diligence in these matters would seem to be, that it is the same diligence and exactness as are exercised in proceedings relating to imposts of excise or customs. We may guess how different would have been the vigilance of the authorities if a great smuggling operation had been suspected. This lamentable proceeding, for which the want of alacrity and common sense at the foreign office and the bias or blundering of the customs agents at Liverpool, may divide the grave discredit, opened a diplomatic campaign between England and the United States that lasted as long as the siege of Troy, and became an active element in the state of moral war that prevailed during that time between the two kindred communities. Mr. Gladstone, like other members of the Palmerston administration, held for several years that the escape of the _Alabama_ was no wrong done by us. Lord Russell admitted (1863) that the cases of the _Alabama_ and the _Oreto_ were “a scandal and in some degree a reproach to our laws,” though he stated in the same sentence that the cabinet thought the law sufficient where legal evidence also was sufficient. It was true that Britain is the greatest shipbuilding country in the world; that to interfere with ships or any other article of commerce is in so far to impose on a neutral some of the calamities of a belligerent; and that restriction of trade was no element in the policy and spirit of foreign enlistment acts either here or in America, which was the first country that by positive legislation sought to restrain its citizens within definite limits of neutrality. By a law of this kind parliament intended to forbid all subjects within its jurisdiction to make war on people at peace with the British sovereign. It is only, in the words of Canning, when the elements of armament are combined, that they come within the purview of such law. This is not by way of controversy, but to define an issue. Chief Justice Cockburn, an ardent champion of his country if ever there was one, pronounced in his judgment at Geneva, when the day for a verdict at length arrived, that the cruiser ought to have been detained a week before; that the officials of customs were misled by legal advice “perhaps erroneous”; and that the right course to take was “plain and unmistakable.” Even Lord Russell after many years of obdurate self-defence, at last confessed in manly words: “I assent entirely to the opinion of the lord chief justice that the _Alabama_ ought to have been detained during the four days I was waiting for the opinion of the law officers. But I think that the fault was not that of the commissioners of customs; it was my fault as secretary of state for foreign affairs.”(255)

Before the _Alabama_ some ten vessels intended for Confederate service had been detained, inquired into, and if released, released by order of a court for want of evidence. After the _Alabama_, no vessel on which the American minister had made representation to the foreign office succeeded in quitting a British port. But critical cases occurred. Emboldened by the successful escape of the _Alabama_, the Confederate agents placed two ironclad rams upon the stocks at the Birkenhead shipyard; Mr. Adams, the American minister in London, renewed his bombardment of the foreign office with proof of their object and design; the foreign office repeated its perplexed pleas against interference, made still more difficult by a colourable transfer of the rams to a French owner; and the whole dreary tragi-comedy of the _Alabama_ seemed likely to be acted over again. By the autumn of 1863 the rams were ready to take the water, and the builders were again talking of a trial trip. This time Lord Russell gave orders that the rams were to be stopped (Sept. 3). He felt the mortification of an honourable man at the trick, of which he had allowed himself to be made the dupe in the case of the _Alabama_. Perhaps also he had been impressed by language used by Mr. Adams to a member of the cabinet, and more formally to himself, to the effect that the departure of the rams would mean the practical opening to the Southern Confederates of full liberty to use this country as a base for hostile expeditions against the North. “This,” said Mr. Adams, “is war.”(256)

The affair of the rams was followed by Mr. Gladstone with absorbed attention. He confessed to the Duke of Argyll (Sept. 30, 1863) that he could not get the ironclads out of his head, and his letter shows with what exhaustive closeness he argued the case. The predicament was exactly fitted to draw out some of his most characteristic qualities—minute precision, infinite acuteness, infinite caution, the faculty of multiplied distinction upon distinction, an eye for the shadows of a shade. The points are no longer of living interest, but they exhibit a side of him that is less visible in his broader performances of parliament or platform.

As might have been expected, Mr. Adams was instructed to solicit redress for the doings of the _Alabama_. Lord Russell (Dec. 19, 1862), declaring that government had used every effort to stop her, refused to admit that we were under any obligation whatever to make compensation. Two years later (Aug. 30, 1865) he still declined both compensation and a proposal for arbitration. This opened a long struggle of extreme interest in the ministerial life of Mr. Gladstone, and, what was more, in the history of civilised nations. It was arbitration upon these issues that now began to divide politicians both inside the cabinet and outside, just as mediation and recognition had divided them in the earlier stages of the American conflict.

(M130) In 1863 Mr. Adams was the first to point to what after a long struggle became the solution of these difficulties, by assuring Lord Russell that there was “no fair and equitable form of conventional arbitrament or reference” to which America would not be willing to submit. In 1865 (Sept. 2) Mr. Gladstone wrote a letter to Lord Russell, the reply to which has already been published.(257) Always jealous for cabinet authority, he began by submitting to Lord Russell that he had no idea that a despatch refusing arbitration was to be written, without a cabinet being held upon a subject so important. As it was, they had not disposed of the question or even discussed it. On the merits, he inclined to believe that the demand for arbitration was highly unreasonable; still though not disposed to say “Yes” to the demand, he doubted “No.” The proper course would be to lead the Americans to bring out the whole of their case, so that the cabinet might have all the pleas before them previously to coming to “a decision of great delicacy and moment.”

Lord Russell stood to his guns. “The question,” he said, “has been the principal object of my thoughts for the last two years, and I confess I think that paying twenty millions down would be far preferable to submitting the case to arbitration.” England would be disgraced for ever if a foreign government were left to arbitrate whether an English secretary of state had been diligent or negligent in his duties, and whether an English law officer was partial and prejudiced in giving his opinion of English law. There the matter stood, and the moral war smouldered on.

II

In 1870, the time arrived when Mr. Gladstone himself, no longer a minister third in standing in a Palmerston government, was called upon to deal with this great issue as a principal in his own administration. In 1868 the conservative government had agreed to a convention, by which a mixed commission, British and American, sitting in London should decide upon the settlement of all claims by the subjects of either country upon the other; and in respect of what were known generically as the _Alabama_ Claims, proposing to refer these to the arbitration of the head of some friendly state, in case the mixed commission should not agree. The idea of a composite court or tribunal, as distinguished from a single sovereign arbitrator, had not yet risen above the horizon. Before this project ripened, Mr. Disraeli was out of government, Lord Clarendon had taken Lord Stanley’s place at the foreign office, and the convention, with some modifications, was signed by him (Jan. 14, 1869), and in due course despatched to Washington. There the Senate, not on the merits but for party and personal reasons, refused to ratify. Though this attempt failed, neither of the two English political parties was in a position any longer to refuse arbitration in principle.

Agreement in principle is of little avail, without driving force enough for practice. The driving force was found mainly from a gradual change in English sentiment, though the difficulties with Russia also counted for something. Even so early as 1863 the tide of popular opinion in England had begun slowly to swell in favour of the Northern cause. In 1866 victory across the Atlantic was decided, the union was saved, and slavery was gone. A desire to remove causes of difference between ourselves and the United States grew at a remarkable speed, for the spectacle of success is wont to have magical effects even in minds that would indignantly reject the standards of Machiavelli. While benevolent feeling gained volume in this country, statesmen in America took ground that made the satisfaction of it harder. They began to base their claim for reparation on the original proclamation of British neutrality when the American conflict began. First made in 1866, this new pretension was repeated in despatches of 1867, and in 1869 the American secretary formally recorded the complaint that the Southern insurrection obtained its enduring vitality by resources drawn from England, and as a consequence of England’s imperfect discharge of her duties as neutral. England became, they said, the arsenal, the navy-yard, and the treasury of the insurgent Confederacy.

In the discussion of the Clarendon convention of 1869 Mr. Sumner—a man of some great qualities, but too often the slave of words where he thought himself their master—made an extravagant speech against the British government in the senate, assessing the claim of the United States upon this country on principles that would have raised it to the modest figure of some four hundred million pounds sterling due from us to them, or, as Mr. Gladstone himself estimated it, to sixteen hundred millions. It does not matter which. This was only a violent and fantastic exaggeration of an idea of constructive claims for indirect damages that lay slumbering, but by no means extinct, in American minds, until, as we shall see, in 1872 it very nearly led to a disastrous explosion. This idea first found distinct and official utterance in the despatch of 1869. Besides compensating individuals for depredations, we were to pay for the cost to America of chasing the cruisers; for the transfer of most of the American commercial marine to the British flag; for enhanced insurance; and generally for the increased difficulty of putting down the rebellion.

All through 1870 a rather troublesome exchange of letters went on between Washington and the foreign office, and Mr. Gladstone took an active concern in it. “I grieve to trouble you with so much manuscript,” Lord Clarendon writes him on one occasion (Mar. 17, 1870), “but I don’t venture single-handed to conduct a correspondence with the United States.... All this correspondence can do nothing but harm, and I have made my answer as short as is consistent with courtesy. I should like to send it on Saturday, but if you have not time to look at it, or think it ought to be seen by the cabinet, I could, make an excuse for the delay to Motley.” All this was in entire conformity to Mr. Gladstone’s enduring conception of the right relations between a prime minister and the foreign secretary. We need not follow details, but one must not be omitted. In 1868 a royal commission recommended various material changes in the Foreign Enlistment Act, and in 1870 accordingly a new law was passed, greatly strengthening the hands of the executive, and furnishing due means of self-protection against such nefarious manœuvres as those of the _Alabama_.(258) By this Act, among other things, it was made an offence to build a ship with reasonable cause to believe that it would be employed in the service of a foreign state at war with a friendly state.

As the year 1870 went on, the expediency of an accommodation with America strengthened in Mr. Gladstone’s mind. One member of the cabinet pointed out to the foreign secretary that if there was any chance of a war with Russia about the Black Sea, it would be as well to get causes of differences with America out of the way; otherwise, however unprepared the United States might be at the moment, we should undoubtedly have them on our hands sooner or later.(259) With Mr. Gladstone the desire was not a consequence of the possible troubles with Russia. His view was wider and less specific. He was alive to the extent to which England’s power in Europe was reduced by the smothered quarrel with America, but he took even higher ground than this in his sense of the blessing to the world of an absolute reconciliation in good faith between the old England and the new. At first the government proposed (Nov. 28, 1870) to send over Sir John Rose to America. He was one of the many Scots who have carried the British flag in its best colours over the face of the globe; his qualities had raised him to great prominence in Canada; he had enjoyed good opportunities of measuring the American ground; he was shrewd, wise, well read in the ways of men and the book of the world, and he had besides the virtue of being pleasant. Rose himself did not formally undertake the mission, but he applied himself with diligence and success to bring the American government to the project of a joint high commission to examine and consider a situation that there was a common desire to terminate.

(M131) On Feb. 1, 1871, Mr. Gladstone was able to report to the Queen the arrival of news that the government of the United States were willing to concur in a commission for the discussion of international questions at present depending, without a previous understanding that liability in respect of the _Alabama_ was to be acknowledged by this country. The cabinet naturally thought that on this they might close, and they at once considered the composition of the commission and the proper instructions. Lord de Grey consented to be its president. Lord Derby, on being invited to join the commission, was very grateful for the compliment but declined, being of opinion that firmness and not concession to the Americans was what was wanted. Sir George Grey declined; so did Lord Halifax. “I asked Northcote,” Lord Granville reports to Mr. Gladstone, “his eyes twinkled through his spectacles. But he said he must ask Lady Northcote, and requested permission to consult Dizzy. The former consented, ditto Dizzy, which looks well.” So the commission was made up of Lord de Grey as the head of it, Northcote, Thornton (the British minister at Washington), Sir John Macdonald, as the representative of Canada, and Mr. Mountague Bernard, a theoretic jurist, who had written a book about our neutrality the year before.(260)

III

The personal relations of Lord de Grey and his brethren with their American colleagues were excellent. They worked hard all day, and enjoyed Washington hospitality in its full strength every night. In business, Mr. Fish occasionally advanced or supported contentions thought by the Englishmen to be almost amusing. For instance, Mr. Sumner in a memorandum (Jan. 17, 1871) to Mr. Fish, had submitted a singular species of political syllogism. He desired nothing so much, he said, as that entire goodwill should prevail between Great Britain and the United States, and that the settlement should be complete. Now the greatest trouble and peril in the way of a complete settlement was Fenianism; Fenianism was excited by the proximity of the British flag over the Canadian border; therefore, the British flag should be withdrawn from the whole hemisphere, including the islands, and the American flag should fly in its stead. In conformity with this tight and simple chain of reasoning, Mr. Fish threw out a hint to Lord de Grey that the cession of Canada might end the quarrel. The English envoy contented himself with the dry remark that he did not find such a suggestion in his instructions.(261)

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.

(M132) 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 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 maintained. Canadian fishery questions were adjusted, and the boundary of San Juan remitted to the arbitration of the newly made German Emperor.

(M133) 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)

IV

(M134) 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 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 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 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 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.

(M135) 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:—

_June 13_ (Thursday).—Since Tuesday morning I have constantly resolved or discussed this proposition: that we should not be justified in breaking off the proceedings at Geneva (if an adjournment can be had after presentation of the summary), upon a refusal to present it. My determination upon it is now firmly rooted and tested by all the mental effort I can apply, and the time I thought had come to-day for looking forward as well as backward. I therefore wrote to the Queen in terms which might a little prepare her for difficulties in the cabinet. I saw Granville first, who had not reached my point, but seemed to come up to it; then arranged for him to see Halifax, Ripon to see Kimberley, and the chancellor [Lowe] to see Cardwell; as the _knot_ of the probable difficulty is in these three. On the whole, I hope we shall, in one way or another, work through. _At any rate, if anything like a government can be held together, I will not shrink._

_June 15._—Cabinet 12-2-1/4, and with brief intervals to 7-½. Dined with Princess Louise. After dinner Granville and I went to see Mr. Hammond, then on to the F. 0., where we got (before midnight) the protocol of to-day from Geneva. Thank God that up to a certain point the indications on this great controversy are decidedly favourable.

_June 16._—Sunday (Bunker Hill anniversary? [No—June 17]). Cabinet here 1-½-3-1/4. We sent off a telegram, which I hope may finish the good work at Geneva.

What happened at Geneva was this. When the day came, the British agent did not lodge his summary, but asked for an adjournment for eight months, as the two governments did not agree upon the scope of the arbitration. This looked dark enough, and the treaty seemed doomed. It was saved by Mr. Adams, the American nominee on the tribunal. When he reached Geneva and learned how things stood, he decided that the knot which they could not untie must be cut.(268) His golden idea was this: the arbitrators should make a spontaneous declaration that on the principles of international law the indirect claims ought to be excluded from their consideration. Adams saw his colleagues one by one, and brought them round to his view. The English chief justice had made up his mind that the whole thing was dead, as he had for many months been loudly telling all London that it ought to be. But when asked by Mr. Adams whether the spontaneous extra-judicial declaration would remove all obstacles to progress, Cockburn answered that he thought it would. “I said,” Mr. Adams continued, “that in that event I was prepared to make a proposition. I should be assuming a heavy responsibility; but I should do so, not as an arbitrator representing my country, but as representing all nations.” So the indirect claims were summarily ruled out, and the arbitration proceeded. In some notes prepared for the cabinet on all these proceedings (Feb. 4, 1873), Lord Tenterden, the clever and experienced British agent at Geneva, writes, “I cannot conclude this part of the memorandum without saying that the dignity, tact, self-command, and moderation with which Mr. Adams discharged his functions as arbitrator, did honour to his country.”

(M136) In September (1872) the five arbitrators at Geneva gave their award. They were unanimous in finding Great Britain liable for the acts of the _Alabama_; all save the British representative found her liable for the _Florida_; the Italian, the Swiss, and the American against the Englishman and the Brazilian found her liable for the _Shenandoah_ after leaving Melbourne. They awarded in satisfaction and final settlement of all claims, including interest, a gross sum of about three and a quarter million pounds sterling. The award, though hardly a surprise, still inflicted a lively twinge of mortification on the masterful and confident people of this island. Opinion was divided, but the decision was not one of those that cut deep or raise the public temperature to fever. The prints of the opposition insisted that the result was profoundly vexatious, it was a bungled settlement, and the arguments used in favour of it were “wild sentimental rubbish.” On the other hand, the _Times_ regarded it with profound satisfaction, and ministerial writers with a lyric turn hailed it as a magnificent victory, though we had to pay a heavy bill. A little balm was extracted from the fact that the Americans had preferred before the tribunal a demand of nine millions and a half, and thus got little more than one-third of what they had asked. So ended what has been called the greatest of all arbitrations, extinguishing the embers that could not have been left to smoulder without constant peril of a vast and fratricidal conflagration. The treaty of Washington and the Geneva arbitration stand out as the most notable victory in the nineteenth century of the noble art of preventive diplomacy, and the most signal exhibition in their history of self-command in two of the three chief democratic powers of the western world. For the moment the result did something to impair the popularity of Mr. Gladstone’s government, but his association with this high act of national policy is one of the things that give its brightest lustre to his fame.

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