that simple process, familiarly described as "giving the lie."

A lamentable instance of this occurs whilst yet we are writing. Sir Stafford Northcote, one of the Commissioners, after long enforced silence, gave utterance to a speech at Exeter, early in the month of May, in which, in confutation of positive statements by Mr. Fish and General Schenck, to the effect that there was no waiver of the indirect claims at the Conference at Washington, he deliberately stated: "We (the Commissioners) are distinctly responsible for having reported to the Government that we understood a promise to be given that these claims were not to be put forward, and were not to be submitted to arbitration,"-adding, " that being so, we are, of course, brought into painful relations with, and painful questions arise between ourselves and our American colleagues upon the Commission." The cool simplicity of all this would be laughable, if it were not painful to think that a British diplomatist should pretend to invoke an "understanding” as qualifying a written contract. Moreover, the very reference to such "understanding," if it existed, would imply that the written document, unqualified by such oral understanding, would have carried the interpretation it is sought by us to controvert. It is not surprising that this charge should be looked upon as a serious matter in the United States; and accordingly we find General Butler taking it up, and moving in the House of Representatives, "that the President be required to inform the House if a promise to the effect stated by Sir Stafford North

cote had been made; if so, by whom, and under what authority; and if the Senate is controlled or influenced by such a proceeding." The Foreign Affairs Committee, to whom this motion was referred, have reported in favour of its being entertained; so here is a new sore opened up between the two countries and their Commissioners.

But hardly had the excitement occasioned by this extra-judicial announcement by Sir Stafford Northcote subsided, when Professor Bernard, one of the British Commissioners, in his ill-judged lecture at Oxford, threw a new cloud of mystery over the subject, by suggesting that with a view to conciliation, the Treaty was purposely made a little ambiguous. After observing that a treaty "is an instrument which you cannot send to be settled in a conveyancer's chamber, nor commit to a knot of wrangling attorneys," he says it is one in which the "punctilios of self-respect of Governments have to be consulted, and discussion must never be suffered to

degenerate with altercation." And for this reason "it is often necessary for the sake of agreement, to accept a less finished, or even a less accurate expression, instead of a more finished or more accurate one; and it must be construed liberally and reasonably according to what appears to be the true intention of the contracting parties." In contradistinction to this theory of the advantages of adopting "less accurate" language in order to facilitate an agreement, however, Professor Bernard, in another passage says: "The Treaty of Washington was carefully framed to embrace only specific claims, such as had

previously become known to both Governments under the name of the Alabama Claims, [but the indirect claims had also become known to both Governments], for losses and damages caused by the acts of certain vessels." These last words do not correspond with the words of the Treaty, which speaks of losses "growing out of," but they are decidedly more exact, and intelligible, and it is only to be regretted that Professor Bernard did not think of this in time to persuade his brother Commissioners to adopt them in the Treaty.

But whilst all this undignified squabbling has been going on, it is most regrettable and humiliating to find that the British Government have thought it becoming to enforce their demand for the withdrawal of the indirect claims, by holding out the threat of resorting, in case of refusal, to an alternative utterly inconsistent with justice, and therefore utterly unworthy of a great nation. All who justly appreciate the sanctity of international engagements must indignantly repudiate the theory which has been propounded day after day, in certain quarters, in and out of Parliament, that because there arises a misunderstanding as to the construction of a treaty, either party to it is at liberty to tear it up like a piece of waste paper; nay more, that a treaty is a thing of so fragile a nature, that it ceases to exist if any disagreement be raised about its import. Yet in the perplexing case before us such a doctrine has been propounded; and we have been coolly told that if we are not at one with the United States upon the interpretation of this particular Treaty,

"the agreement turns out to be no agreement, and falls to the ground." The answer to this is simply that "agreement" and "treaty " are not exactly convertible terms; that an agreement, resulting from a thorough mutual understanding, should precede the treaty; and that if such a doctrine as that propounded above were to be admitted, there would be no certainty, no security in international contracts of any kind, and that the signing of treaties would degenerate into a sort of "handicap" transaction, in which either party is at liberty to cry off, if he does not like the weights, and that without paying forfeit.

Upon the whole, we can but agree with the Americans, that, however exaggerated and intolerable their "Case" may prove to be, the function of deciding upon it rests with the Court of Arbitration, who are the sole judges of their jurisdiction under the articles of the Treaty relating to the matters referred to them. But our Government, ignoring this principle, after much doubt and vacillation came at length to the resolve of sending in a "Counter-case" to the "Case" of the United States, in which they decline treating in any way with the indirect claims, and which document they accompanied by a note, addressed to each of the arbitrators, in which they "expressly and formally intimate and certify" that this Counter-case is presented "without prejudice" to the position assumed by Her Majesty's Government, and under "express reservation of all Her Majesty's rights, in the event of a difference continuing to exist between the high

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contracting parties as to the scope and intention of the reference to arbitration ;" and add that they will, if necessary, communicate further on the subject, at or before the time limited by the 5th Article of the Treaty." It was well understood that our Government, in so acting, contemplated withdrawing altogether from the arbitration in case the claims for indirect losses were not withdrawn before the 15th June, being the day fixed for the re-assembling of the Court of Arbitration; but in pursuance of their usual hesitating and uncertain policy they, "out of motives of delicacy," as they allege, did not communicate anything to that distinct effect to the arbitrators and the consequence may yet be another misunderstanding, a misunderstanding with the arbitrating powers,-leading to confusion worse confounded.

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For, though Lord Granville seems to forget it, there are other parties besides the actual litigants who are entitled to honourable consideration in this proceeding, but who, unfortunately, have been by implication subjected to unexampled indignity through the irregular discussions which have been permitted to occur—namely, the Sovereign States who, at the joint request of the contending parties consented to arbitrate in the matter, and who have appointed distinguished jurists on their behalf towards that end. In matters of litigation before an ordinary tribunal the discussion of a case "out of court" is justly visited and resented as an act of "contempt." Sovereign states cannot commit one another to "durance vile" for such a cause;