than this the United States ought not to be and would not be satisfied with.

"Some discussion was also had as to the manner in which the questions should be raised.

"Sir John Rose said that the British Government could not take the initiative in the question of the Alabama claims, and suggested that, in case the way for a settlement seemed clear, the British Government should propose a commission for the settlement of the San Juan boundary, the fisheries, and other Canadian questions, and that the United States should accede, provided the claims for the acts of the vessels should be also considered. Mr. Fish assented to this."

uary 11, 1871.

prepared.

On the 11th of January Sir John Rose called

Memorandum of Jan- at the Department of State and read to Mr. Davis, confidentially, a paper which he had After reading this paper, Sir John left it with Mr. Davis. It was returned by Mr. Fish on the following day, "with thanks, and with hopes." Owing to its importance, it is inserted here at length:

["Strictly confidential.-Mem.]

"The commissioners to treat on various questions of dif ference between the U. S. & G. B.:-to provide by Protocols, Treaties, or otherwise, means by which a full and final adjustment and satisfactory determination of the same may take place,' or some such words.

"The preamble of the English Com. to contain words of similar import to those which preceded the negotiations in 1814 as to the desire of H. M. to put an end to these differences-to lay,-upon a just and liberal basis which shall secure the rights and interests of both nations, the foundation of lasting bonds of amity between them.

"Would not sending High Comrs. here be accepted as a friendly advance in reference to past events, and would not terms made in Washington through such a body be more likely to be acceptable than the same terms would be if arranged in England by ordinary diplomatic process?

"The commissioners by discussions and protocols would soon limit the points of difference. The idea is, not that the High Commissioners should adjudicate on the questions themselves, but arrange by Treaties, modes or machinery of doing so.

"The great difficulty would probably be as to the mode by which the question whether England was liable for the Alabama's depredations should be determined;-whether, if the Commissioners disagreed, the decision should be left to a friendly power to be chosen by the two governments;-or

Mr. Davis MS. Journal.

whether the opinions of a Body of eminent Jurists, including American, English and Foreign, might not be taken on the facts as they appear in the Diplomatic Correspondence? and be the guide as to the existence and measure of liability, which opinions should form the rule for the Mixed Commissioners, to be named and act judicially under the treaty.

"It is hardly conceivable that High Commissioners meeting in a pacific spirit, and selected specially with reference to their acceptability to each country, should not find some method of adjustment which would be satisfactory to both nations. They would, of course, be subject to daily instructions from their governments; and mutual concessions could be thought of to meet the various cases of difficulty as they arose.

"It is not probable that their negotiations would be very prolonged, as no questions of fact requiring evidence would arise; and would it not be possible to bring the negotiations to such a point as that the assent of the Senate to the results might be obtained before it adjourned?

"Is it not desirable, also, if these general views are thought favorably of, that they should be initiated before General Schenck leaves? The approaching fishing season may bring renewed controversy and rouse feelings which may obstruct pacific action in reference to the other more serious questions. It would seem difficult now to recede from the policy of exclusion, at all events not unless a Conference on the subject had actually begun.

"Then the English Parliament (possibly an European Congress) will be in session about the time the new Minister arrives; and subjects of pressing exigency growing out of the policy and views of the governments in reference to the FrancoGerman war, the action of Russia on the Black Sea questionof Prussia on the Luxembourg Treaty,-the Army and Navy organization, will so force themselves on the attention of Parliament and the Government that, however earnest their desire might be to carry on immediate direct negotiations with General Schenck, much delay may unavoidably occur; and it is impossible to say what may take place before the Autumn, the period which we might naturally look to as that when diplomatic negotiations might make some progress.

"Supposing, then, that an attempt was made to have Sir Edward Thornton authorized by cable, now, to propose such a Commission with reference to all other subjects-omitting the

Gen. Robert C. Schenck. After Mr. Motley was asked to resign Mr. Frederick T. Frelinghuysen was nominated as minister to England. His nomination was promptly confirmed by the Senate, but for personal reasons he declined the post. (Mr. Fish to Mr. Frelinghuysen, July 21, 1870; Mr. Frelinghuysen to Mr. Fish, July 30, 1870. MSS. Dept. of State.) General Schenck was subsequently appointed. He was requested to delay his departure for London, with a view to his becoming a member of the joint commission. (For. Rel. 1871, p. 432.)

Alabama-and that the U. S. were to say they would only agree, provided the Commissioners were authorized to deal with the A. and all the other subjects as well as with a view to a comprehensive settlement;-might not the English Commissioners come out at once, and would it not be politic that General Schenck should be one of the American Commissioners (as were the U. S. Minister to France and England on the negotiations in 1814)?

"The other alternative (which, however, involves the risks attending delay and which would leave the proceedings without the advantage of General S.'s presence here) would seem to be that, if the plan now sketched out should be acceptable to the Government of the United States, the proposals might be made in England to General Schenck, instead of to the Government here by Sir E. Thornton, and that his, General Schenck's, instructions, prepared with special reference to the contingency, might authorize an immediate assent, so that the Commissioners could leave England at an early day, and the Senate might during the present session approve of those whom the President might be pleased to name here.

"If this course were adopted, it would be desirable to accompany it with some temporary arrangement whereby the risk of fresh difficulties from the Fishery question during the coming season should be prevented."

randum.

The negotiations had now reached a stage Mr. Sumner's Memo- at which it became necessary, in order that success might be assured, definitely to ascer tain the basis on which an agreement might be concluded with a certain prospect of its ratification by the Senate. With this view, Mr. Fish on the 15th of January called by appointment at Mr. Sumner's house and laid before him, as chairman of the Senate Committee on Foreign Relations, to which any treaty would have to be referred, Sir John Rose's proposals. Mr. Sumner on that day gave no answer; but on the 17th of January he sent to Mr. Fish the following written response:

"MEMORANDUM FOR MR. FISH IN REPLY TO HIS INQUIRIES.

"(1) The idea of Sir John Rose is that all questions and sources of irritation between England and the United States should be removed absolutely and forever, that we may be at peace really, and good neighbors; and to this end all points of difference should be considered together. Nothing could be better than this initial idea. It should be the starting point.'

"(2) The greatest trouble, if not peril, being a constant source of anxiety and disturbance, is from Fenianism, which is excited by the proximity of the British flag in Canada. Therefore, the withdrawal of the British flag cannot be aban

doned as a condition or preliminary of such a settlement as is now proposed. To make the settlement complete the withdrawal should be from this hemisphere, including provinces and islands.

"(3) No proposition for a Joint Commission can be accepted unless the terms of submission are such as to leave no reasonable doubt of a favorable result. There must not be another failure.

"(4) A discrimination in favor of claims arising from the depredations of any particular ship will dishonor the claims arising from the depredations of other ships, which the American Government cannot afford to do; nor should the English Government expect it, if they would sincerely remove all occasions of difference.

"17th Jan. '71."

Memorandum of Mr.
Fish.

"C. S.

What would have been the effect of a demand for the withdrawal of the British flag from the western hemisphere, including prov inces and islands," as a "condition or preliminary" of such a settlement as was proposed, it is not difficult to conjecture'; and, after reading the foregoing memorandum, Mr. Fish determined to continue the negotiations on the lines on which he had begun them, relying on his ability to gather sufficient support to overcome any opposition which he might encounter in so doing. To this end he drew up a tentative memorandum of a reply to Sir John Rose's proposals, which was as follows:2

["Strictly confidential.]

"MEMORANDUM (FOR CONSIDERATION BY H. F.)

"The Commissioners, or Envoys, or Plenipotentiaries (however called) on either side should be authorized and empowered to treat of, settle and adjust all subjects of difference between the two governments, so as to remove all sources of irritation and to secure a substantial and lasting peace and friendship between the two countries.

"The precise language to be used in the Commissions, or Preambles, or preliminary correspondence, or proposals, cannot

1 The Hon. Geo. F. Edmunds, in his memorial address on Mr. Fish, before the legislature of New York, referring to this stage of the negotiations, says: "In doing this work Mr. Fish had to contend with some most astonishing and extravagant propositions, insisted upon by some gentlemen high in public life as a sine qua non of entering into any negotiations at all. Some of them were such that there is good reason to believe that the mere statement of them would have put an end to all negotiations at once." (P. 47.)

2 Mr. Davis' MS. Journal.

be now determined; but, if the two governments desire a friendly settlement of all differences and of all probable or possible causes of difference, they will each naturally use language looking to that end.

"No copy of the Powers of the British Commissioners who negotiated the Treaty of Ghent is found in the Department of State. The form stated in Sir John Rose's Mem. does not appear objectionable; but, not having the words which preceded the negotiations in 1814,' it is thought advisable not to refer to a paper of which we have no copy.

"The Government of the United States in all its branches is desirous of an early, friendly, full, and complete adjustment of all differences and of all questions of difference with Great Britain, and of the removal of all causes likely to give rise to differences or to irritation in the future.

"It is believed that the proposal by Great Britain to send Commissioners here would be regarded and accepted as a friendly advance in reference to past events.

"The idea that the High Commission should not adjudicate on the questions themselves, but arrange by Treaties modes or machinery of doing so,' is, perhaps, not fully understood. It is supposed that, upon the questions (for instance) of the Fisheries, San Juan, the Navigation of the St. Lawrence, the admission of liability of Great Britain for what are commonly known as the 'Alabama Claims,' in whole, or in part, the definition of Public Law or rule to be established between the two powers as to maritime neutrality, &c., the negotiators (by whatever name known) could and should themselves treat, adjudicate and determine.

"If the idea be only that the High Commissioners are not to adjudicate upon the amounts or validity of claims, but are 'to arrange by Treaties modes or machinery of doing so,' it is approved.

Possibly the High Commissioners (this designation is used throughout to indicate the Commissioners or Negotiators of both and of each Power by whatever name commissioned) may agree upon a gross or lumping' sum to be paid to the United States in satisfaction for what are known as the 'Alabama Claims, and for the expense to which the Government of the United States was put in the pursuit and capture of the vessel or vessels which inflicted the damage. If not, but if they settle the question of liability, the amount of liability would seem a proper subject for reference to a mixed commission with judicial functions, and the composition or mode of forming such mixed commission should be a subject of consideration and agreement by the High Commission.'

"On the subject of the Alabama Claims,' a reference, in case one be agreed upon in any event, of the facts as they appear in the Diplomatic Correspondence, might operate unjustly. Such facts as could be agreed upon by the High Commission' might be submitted, as well as those which appear in the