The Responsibility of Spain
FOR THE
Destruction of the United States Battleship Maine
IN HAVANA HARBOR, FEBRUARY is, 1898,
AND THE
ASSUMPTION BY THE UNITED STATES, UNDER THE TREATY
OF 1898, OF SPAIN'S PECUNIARY LIABILITY FOR
THE INJURIES TO, AND DEATHS OF,
HER OFFICERS AND CREW.
Argument
OF
Charles Henry Butler, before the Spanish Treaty
Claims Commission, December 18-21, 1901,
On behalf of Claimants represented by Butler & Harwood.
ClassiLlin
Book _^B^ 1
\
The Responsibility of Spain
FOR THE
Destruction of the United States Battleship Maine
IN HAVANA HARBOR, FEBRUARY is, 1898,
AND THE
ASSUMPTION BY THE UNITED STATES. UNDER THE TREATY
OF 1898, OF SPAIN'S PECUNIARY LIABILITY FOR
THE INJURIES TO, AND DEATHS OF,
HER OFFICERS AND CREW.
Argument
OF
Charles Henry Butler, before the Spanish Treaty
Claims Commission, December 18-21, iuoi.
On behalf of Claimants represented by Butler & Harwood.
NEW YORK :
The Eventnu Post Job Printing House, 15« Fulton Street.
(Evening Post Building.)
1902.
U K-
LIBRARY OF CONGRESS
RECEIVED
DEC 4 1923
DOCUMENTS DIVISION
El ~\i.
■.Sri
\
TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT.
PAGE
Statement of the case 1
Abstract of petitions 2
Article VII. of Treaty of Peace 2
Act of March 2, 1901, appointing Commission 3
Position of Attorney-General on Maine cases IS
.Motions to dismiss and disposition thereof 4
Extracts from Attorney-General's brief on motions to dismiss 5
Propositions of law in Government's brief 6
Position of the claimants in regard thereto 7
POINTS.
I.
AS TO JURISDICTION.
First Point.
Extent of Jurisdiction of Spanish Treaty Claims Commission s
Every fact necessary to confer jurisdiction alleged in petitions. 9
Questions of responsibility cannot be raised on demurrers. . . . 10
Extract from Attorney-General's brief as to jurisdiction 10
Second Point.
Duty of this Court to take jurisdiction of the claims II
Third Point.
Jurisdiction of similar tribunals discussed 13
The Aspinwall bond case against Venezuela 14
Extract from Moore's International Arbitration 15
Jurisdiction of Commissions over claims of Government officials,
civil and military 1?
Fourth Point.
The burden of sustaining demurrer for want of jurisdiction upon
the Government 18
Congress intended this Court to take jurisdiction of all claims. 19
It TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT.
II.
AS TO THE MERITS OF THE DEMURRERS.
PAGE
Fifth Point.
Claims should be allowed "on their merits and on the principles of
equity and of international law *' 20
International law part of law of United States 21
Precedents in which United States has demanded indemnity for
officials, civil and military, must be regarded as interna-
tional law by this Court; precedents cited 22
Sixth Point.
Spain responsible for the destruction of the Maim-: such destruction,
however, not an act of war. or one of the causes of the war. . 23
Government's inconsistent position in regard to Spain's con-
nection with the destruction of the Maine 24
Seventh Point.
Legislative history of the declaration of war 25
Extracts from report of Naval Court of Inquiry and President's
messages 26
Report of Committee on Foreign Relations of April 13, 1898. . 27
Joint resolution for recognition of independence, etc 29
Act of April 25, 1898, declaring war 30
Effect of Attorney-General's proposition that Maine was the
cause of the war on American principles of arbitration .... 31
Eighth Point.
Treaties of peace do not necessarily obliterate claims of citizens.
even though connected with causes of war 32
Views of Daniel Webster on this point 33
Views of Kent. Wheaton, Woolsey and others on this point. . . 34
Views of Halleck, Phillimorc and Lord Stowell on this point. . 35
Ninth Point.
Under international law Governments must compensate citizens for
claims released by treaty 36
Supreme Court decisions on this point and extract from
Grotius 37
Tenth Point.
The foregoing principle of international law a part of the con-
stitutional law of the United States 38
Decisions cited that claims of citizens of the United States
against foreign powers are property rights. . :i'.'
Obliteration of such claims by treaty held to lie the taking of
private property for public use nuclei- the Constitution. . . . '■'>'.*
Just compensation must be rendered for taking such claims for
public use 4o
TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT. Ill
PAGE
Eleventh Point.
Treaties of peace on same footing as other treaties 40
Proceedings of Constitutional ( Ion vent inn of I 7 s ; 41
Authorities cited on this point 41
Twelfth Point.
The relinquishment of claims by Article VII. of the Treaty of
Peace included claims of every nature, whether connected
with causes of war or not 42
Thirteenth Point.
Treaties affecting rights of citizens must lie construed liberally. . . 43
In this case the construction must he liberal for the citizins
whose claims were extinguished 44
Position of President McKinley in regard to these claims. .. 45
Fourteenth Point.
Claims extinguished by tin- Treaty of Peace necessarily include
these claims 45
Distinction between national and individual claims 46
Extracts from opinion in French Spoliation case 40
Other cases in which national and individual elements have
existed 4i
Charles Sumner's report in French Spoliation eases and his
views on national and individual claims 49
List of French Spoliation cases 49
Fifteenth Point.
Moral duty resting upon United States Government to present
claims to Spain 50
Authorities cited on responsibility of Governments for aban-
doning claims of citizens 50
Policy of the United States not to abandon claims of citizens . 51
Sixteenth Point.
Presumptions in construing treaty must be in favor of petitioners,
as they are officers, sailors and marines, or the widows and
orphans of, officers, sailors and marines, of the Navy of the
United States 51
Policy of the United States always to protect its soldiers and
sailors in foreign lands 52
The Baltimore case 52
Extracts from President Harrison's message 52
Extract from Secretary Blaine's instructions . . .">:;
Extract from Secretary Foster's instructions ... 54
Settlement of the Baltimore case and payment by Chile 54
IV TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT.
PAGE
Government's effort to distinguish Baltimore ease, and extracts
from Mr. Russell's argument 55
Attempt to distinguish case refuted by statements in President
Harrison's message : extracts therefrom 55
The case of the Chesapeake sailors, United States vs. Great
Britain; indemnity for attack by the Leopard 5<
The case of the General Armstrong, United Slates vs. Portugal,
and demand for indemnity of crew of privateer 59
The case of the Wyoming, United States vs. Japan, and in-
demnity collected for crew 59
Government's attempt to distinguish Wyoming case refuted by
Senate Committee's Report 59
The case of the Water Witch, United States vs. Paraguay; in-
deinity collected for sailor killed while on duty 60
The RuesTcen case, United States vs. Japan, indemnity collected
for member of legation killed, and extracts from Foreign
Relations Reports 61
The case of the Spanish Consuls in New (>rl<>iin* ami Key West,
Spain vs. United Slates, indemnity paid liy United States
to consuls assaulted by mob 6 I
The Margery ease. Great Britain vs. China : indemnity de-
manded and collected for military officer killed 62
The case of the British Sailors in Japan, Great Britain vs.
Japan; indemnity demanded and collected for British
sailors killed in legation, and extracts from Foreign Rela-
tions Reports in regard thereto 62
The case of the French Corvette Dupleix, France vs Japan,
indemnity demanded and collected for killing of French
officers and sailors 63
Seventeenth Point.
Spain's responsibility not affected by the fact that injuries occurred
on a United States battleship; doctrine of exterritoriality ap-
plicable to war vessels does not relieve sovereign of port from
protection of vessel 64
Importance of this rule to the United States 64
Attorney-General's position on exterritoriality stated in extracts
from bis brief 65
Secretary Sherman's position that Spain was responsible lor
safety of vessel 66
Doctrine of exterritoriality applicable equally to ships and em-
bassies, and extracts from Wheaton in regard thereto 67
Position of Col. George 11. Davis in regard to principles of ex-
territoriality and their application to the Maine case 61
Extract from last edition of Professor Davis' book on inter-
national law in regard to Maine ease ^S
TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT. V
PAGE
Eighteenth Point.
The claims relinquished by the treaty included all claims, whether
same had been presented by United States to Spanish Govern-
ment or not 69
Definition of the word claims and authorities cited in regard
thereto 70
Unnecessary to present claims; position of Paris Commissioners
in regard thereto 71
Other treaties cited in which presentation made an essential
element lor recognition or to confer jurisdiction 72
Correspondence of State Department refutes Attorney-Gen-
eral's position .... 73
Act of March 2, 1901, gives jurisdiction to all claims, whether
presented or not; extracts from the Act 74
Nineteenth Point.
Maine claims formally presented by the United States to Spain he-
fore the war and demand for reparation made 75
Correspondence between State Department and Spanish Gov-
ernment in regard to Maine claims 76
Spain charged with responsibility for destruction of the Maine
by Secretary Sherman 77
Spain's offer to arbitrate and correspondence in regard thereto. 78
Report of Senate Committee on Foreign Relations in regard to
responsibility of Spain for destruction of the Maine 7'.)
Secretary Day's letter of July 30, 1898, demanding Porto Rico,
etc., as indemnity for injuries to citizens HO
Correspondence between American and Spanish Commissioners
in Paris in regard to claims of citizens SI
Spanish Commissioners' offer to arbitrate question of re-
sponsibility for Maine declined by American Commis-
sioners - • ■ ■ s -
Same oiler repeated and declined S3
Addition to Article VII. that United States would adjudicate
claims of its citizens 84
No contract made by Peace Commissioners with Spain in regard
to Maine, as stated by Attorney-General 85
In construing treaty, rights of American citizens and not " sen-
sibilities " of Spain are to be considered by this Court S5
Twentieth Point.
Spanish Treaty Claims a domestic commission, and the Government
of Spain has no standing before it 86
Spain not interested in amount of claims awarded, as no con-
tingent liability exists 86
VI TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT.
PAGE
Twenty-first Point.
United States received Porto Rico, etc., specifically to pay claims of
its citizens 88
Government accepting territory for indemnity is under same ob-
ligation to pay to citizens as though it received cash 8S
Twenty-second Point.
Individual claims against Governments for injuries of and deaths to
citizens of other countries recognized by international law. . 89
Recognized by United States 90
The case of the Virginia* and the distribution of the award . . . 90
Twenty-third Point.
Statute of March 30th, L898, not a bar to petitioners' claims. Pay-
ments thereunder cannot be set up on demurrer 01
This defense could not have been pleaded by Spain, and there-
fore not pleadable by United States 92
Twenty-fourth Point.
The moral obligation to adjudicate these claims for the petitioners. . 92 (
Effect of decisions of this Court upon international law and
claims of United States against foreign nations 93
Liability of foreign nations to United States for injuries to
citizens will eventually be measured by liability admitted
by the United States in these cases 93
Twenty-fifth Point.
Demurrers should be overruled 94
Before tbe Spanish Greats Claims Commission.
Act of Congress of March 2, 1901.
Harry S. McCann
vs.
The United States.
Catharine Burns
vs.
The United States.
\- ISO.
MAINE CASES.
No. 31.
Argument of Charles Henry Butler for Claim-
ants on Demurrers.
STATEMENT.
The claims in both of these cases are for damages occasioned by the
explosion of the Maine in Havana Harbor cm February Id, 1898. The
claimant McCann is a survivor and demands $10,000 as damages for
injuries which he sustained ; the claimant Burns demands 8^0,000 as
damages for the deatli of her son, who was killed at the same time.*
In each case a petition has been filed in accordance with the pro-
visions of the statute establishing the Commission, and with the rules ami
practice adopted by the Commission; each is properly verified, sets forth
concisely and without unnecessary repetition the facts upon which the
claims are based, together with the schedule setting forth the items
claimed; each states the full name, residence and citizenship of the claim-
ant and the amount of damages sought to be recovered; each has been
signed and verified, and tiled with the Clerk of the Commission under
and pursuant to the statute, as well as the rules of this Commission ;
the prosecution, therefore, of each claim has not only been commenced,
but has been properly commenced, and is properly before this Commis-
* About one hundred and thirty claims similar to those of these petitioners have been
tiled with the Spanish Treaty Claims Commissions. Most of them are claims of relatives
of men who were killed, but a few are claims of survivors who were injured. About
sixty of the petitioners are represented by Butler & Harwood, 135 Broadway, New York
City, who are the attorneys for the petitioners McCann and Burns. The total amount of
claims in what are known as Maine cases is about $i!,500,000.
•■.' HEFOKE TIIK SPANISH TREATY CLAIMS COMMISSION.
Biorij and can only be prosecuted, or defended, in accordance with the
provisions of the statute and the rules adopted by the Commission.
Brielh stated, each petition sets forth the following facts:
I. — That the petitioner is a citizen of the United .States.
II. — That tin- petitioner has a claim against Spain which arose in the
manner state 1. and between February, 1895, and April, 1899 — to wit, on
February L5, 1898.
III. — That the claim has never been satisfied.
IV. — That the Maine at the tin f the explosion was in the Harbor
of Havana on a mission of peace, and rightfully there, and that the per-
sons killed and injured wen1 rightfully on board of her.
V. — That the injuries ol the claimant, McCann, and the death of
Burns, were the result of the explosion, and the claimants have actually
sustained damages, as alleged, by reason thereof.
VI. — That such explosion was not the fault of the petitioner or of any
person or persons in the employ, or under the control, of the United
States, nor did it result from any interior cause whatever.
VII.^-That such explosion and the resultant damages were caused by
an exterior explosion: that the Government of Spam did not assure
safety and security to the said battleship; that the explosion and re-
sultant damages were directly caused by the wrongdoing and negligence of
Spain and its officers and agents: and that the Government of Spain was
and is responsible and liable therefor.
VIII. — That peace existed between Spain and the United States on
February 15, 1898.
IX. — Thai Havana, Cuba, including the harbor thereof, on February
15, 1898, was under the control and dominion of the Government of
Spain, and of no other country or government.
X. — That the political departments ol the Government of the United
States have established as an historical tact, which is binding upon the
judicial department, that the Spanish Government was responsible for
the destruction of the Maine.
On December 10, 1898, a treaty of peace was concluded between the
United States and Spain : by Article VII. of this treaty each nation
released I lie other from all claims, national and individual, to the most
complete extent, and by the broadesl terms, which could possibly have
I n used : and the United States also declared that it would adjudicate
and settle the claims of its citizens which were thus relinquished.*
* " Abtioli VII. — The United States and Spain mutually relinquish all claims for
indemnity, national and individual, of every kind, of either Government, or of its citizens
in subjects, against the other Government, that may bai e arisen siuee the beginning of the
late insurrection in Cuba and prior to the exchange of ratifications of the present treat y,
including all claims for indemnity lor the cosl of the war.
" The United Stale- will adjudicate and settle the claims of its citizens against Spain
relinquished in this article" (80 ('. S. St. at L. pp. 1754-1757.)
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. O
On March 2, 1901, Congress passed an act directing the President to
appoint this Commission to adjudicate the claims relinquished by the
article of the treaty.*
The act provides the method in which claims are to be presented
and prosecuted and the procedure to be adopted by the United States.
It also gives the Commission certain powers as to making its rules and
conducting its business.
Pursuant to this statute, and this Commission being the only court
clothed with anyjurisdiction to receive, examine aud adjudicate claims of
this nature, the claimants have appeared at its liar to seek the redress
to which they are entitled, and which they can obtain in no other manner.
Instead of answering or demurring to the petitions as required by the
statute of March 2, 1901, the Attorney-General moved to dismiss the
claims " for want of jurisdiction " of the Commission. f
To these motions the claimants raised the preliminary objection that
under the statute of March 2, 1901, the defendant was confined to de-
murring or answering. The preliminary objections were argued on
November 20th, and overruled, hut on December 11th tic motions were
* " Chap. 800.— An Art to carry into effect tin' stipulations of article seven of the
treaty hetween tin- United States and Spain concluded on the tenth day of December,
eighteen hundred and ninety-eight.
Be il enacted by the Si uate ami House of Represt ntatives of tin- United States of America
in Congress assembled, That the President of the United States shall appoint by and with
the advice and consenf of tie- Senate, five suitable persons learned in the law, who shall
constitute a commission, whose duty it sh.ill lie. anil it shall have jurisdiction, to receive,
examine, ami adjudicate all claims ol citizens of the United states against Spain, which
the United States agreed to adjudicate and settle by the seventh article of the treaty,
concluded between the United States and Spain, on the tenth day of December, A.D. 1898.
It shall adjudicate said claims according to the merit of the several cases, the principles of
equity, and of international law " (SI U, S. St. at L., p. 877). The act consists of 10 sec-
tions, the first only is here quoted.
\ The grounds stated in the motions to dismiss are as follows :
" 1. That, the alleged claim is not within the terms m- the contemplation of the Treaty
of Peace between the United Stan- and tie- Kingdom of Spain of December 10, 1898, or of
the Act of Congress of March 2, 1901, organizing this Commission; for that whatever may
have been the facts out of which the alleged claim originated, such claim was extinguished
at or before the execution of the Treaty of Peace, and the Act of < longress aforesaid, as ap-
pears by reference to protocol No. 20, of December 6, 1898. (Treaty of Peace hetween the
United States and Spain, Senate, 55th Cong., 3rd session, Doc. No. 62, part 2, pp. 242 -It )
" 2. That, the alleged claim has been finally disposed of and concluded by the action
of the political department of the United States, and this disposition and conclusion by
the appropriate department of the Government bars the jurisdiction of this Commission or
any other tribunal, in respect to the subject matter.
" 3. That by the Act of Congress of March 30, 1898 (U. S. Stats. L., Vol. 30, p. 34(5)
entitled 'An Act for the relief of the sufferers by the destruction of the United States S. S.
Maine in the harbor of Havana, Cuba,' the United Stales has satisfied all claims for pecuni-
ary indemnity sustained by individual citizens as a result of the acts alleged in the
petition."
4 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
withdrawn and demurrers substituted therefor, the grounds for which
were somewhat different than those stated in the motions to dismiss.*
In his brief on the preliminary objections the Attorney-General
declared that the motions to dismiss practically were demurrers and
could he considered and argued as such. On the argument of the
objections, however, a different position was taken, and when a member
of the Court asked why the motions were resorted to instead of demurrers,
one of the counsel for the Government declared that the petition was
drawn in such a manner that a demurrer was impractical. In fact, t lie
learned counsel for the Government,! who has had great experience
in international disputes, and has practiced extensively before tribunals
of this nature, declared that '-the petitions were marvelous examples
of admirable pleading," and that it would probably be impossible to
sustain demurrers thereto, owing to the allegations of fact which would
necessarily have to be admitted on the argument.
After the Court had overruled the preliminary objections, the
Attorney-General filed a brief on behalf of the Government in support of
the motions to dismiss in which the position was taken: That
'* among the causes of war. formally se1 forth in the Joint Resolution
of April 20,1898, was the destruction of a United States battleship,
with two hundred and sixty-six of its officers and crew, while on a
friendly visit to Havana. * * * that it is a familiar principle of
international law concerning war and treaties of peace, that the causes
of war pass into oblivion, if not expressly saved therefrom by the treaty
of peace. * * * That it is submitted that it was the intention of
the treats- not to provide for, but to relinquish and leave in oblivion as
settled in the tribunal of war, the grievance referred to expressly in the
Joint Resolution of April 20, 1S9S"; his first point concludes with
the following remarkable statement: " The destruction of Spanish lives
and the loss of Spanish possessions atoned for and settled any supposed
responsibility of Spain for the destruction of that national ship with its
officers and crew.'' The brief then refers to the report of the Naval
Court ol Inquiry and to the Act of March 30, 1808, by which a sum not
* The grounds of the demurrers are slated as follows:
Now comes the United States, by the Attorney-General, and demurs to the petition
herein on the following grounds:
1. That the Commission has no jurisdiction of the subject matter stated in the petition.
2. That the petition does not contain facts sufficient to constitute a cause of action or
entitle the claimant to an award against the defendant.
3. That no liability ever existed on the part of Spain in favor of the claimant by
reason of the alleged acts complained of in the petition, and there is no liability on the
part of the United States in favor of the claimant by reason of the Treaty of Peace between
the United States and Spain of December 10, 1898.
A. That the alleged claim is not within the terms or the contemplation of the Treaty
of Peace between the United States and the Kingdom of Spain of December 10, 1898, or
the Act of Congress of March 2, 1901.
\ Mr. Alexander Porter Morse.
ARGUMENT OF CHAS. H. BUTLER IN" MAINE CASES. 5
greater than one year's sea pay was allowed to officers and seamen of the
Maine for articles lost by reason of the destruction of the vessel, and the
following conclusion deduced therefrom : "This action of the political
department of the Government clearly demonstrates that a claim for
money indemnity on behalf of individual citizens was never presented or
intended to be presented against Spain, and that Article VII. of the
treaty, therefore, was not intended to relinquish any claim cm behalf of
citizens against Spain."
Paragraphs III. and IV. of the brief are the most remarkable, however,
in that they are practically a plea entered on behalf of the Spanish
Government by the Attorney-General of the United States: they are
therefore quoted in full in the notes for the purpose of showing that the
Attorney-General has endeavored at every opportunity to make this
Court, believe that the adjudication clause of Article VII. of the treaty of
L89S, was made for the benefit of Spain instead of for the benefit of
citizens of the United States whose claims against Spain were obliterated
by the treaty as against that country.*
The withdrawal of the motions and substitution of demurrers was
another change of front on the part of the Government, and shows that
it desires to avoid, if possible, any adjudication of these claims and
that it intends to use every effort to prevent this Court from even con-
sidering them.
Before the argument on these demurrers the Attorney- General
tiled a consent that the brief above referred to should stand as his briel in
support of the demurrers ; since the argument the counsel for the Gov-
* " 3. Notwithstanding the broad language of the treaty and thejurisdictional act, it is
not to be supposed that the Government of Spain or the Congress of the United States
intended that this commission, constituted in a spirit of reconciliation to ascertain in a
familiar way the losses of American citizens ' that may have arisen since the beginning of
the late insurrection in Cuba,' which was in February or March, 1895, should enter upon
an inquiry into the responsibility of Spain for the destruction of the battleship refcired
to and bring in ex parte a judgment holding Spain up to the obloquy of the civilized
world. That, inquiry had been submitted to another tribunal, bad been exhaustively car-
ried on, had been acted upon by < longress, had been followed by war partially based upon
the alleged destruction, and the subject bad beer, carefully avoided in the treaty of recon
ciliation and peace.
" Spain had offered to submit to an impartial investigation by some third power, and
had herself made an investigation, with the same indefinite result, it seems, as that made
by the United States. To suppose that this commission, after all that has been referred
to and with the means and appliances which have been furnished to it, suitable only for
the ordinary purposes of a claims commission, was intended to open up and undo and do
over again this inquiry into the responsibility of the Spanish Government, with the result
of disgracing Spain on the one hand and on the other of discrediting the Government of
the United States, is entirely unreasonable.
" 4. If the commission shall be in doubt upon tins subject, so obviously imthought of
in the constituting of the commission, so far beyond its power to act upon adequately, and
involving the sensibilities of a friendly power, its doubt should be resolved in favor of
leaving to the political department of the Government a business which has already so
long and seriously engaged its attention."
6 UK FORE THE SPANISH TREATY CLAIMS COMMISSION.
ernrnenl have Bled an additional brief in which their position is finally
stated with some degree of definiteness; seven propositions are stated* at
length, which arc afterwards reduced to three principal points as follows:!
"I. — That the destruction of the battleship Maine was one of the
causes cm' the war between Spain and the United States. J
•' II. — That no liability ever existed on the part of Spain in favor of the
claimants by reason of the alleged acts complained of in the petitions.?;
* The seven propositions in the Government's brief are as follows :
"First. — That the Commission possesses no power or jurisdiction to review any acl
of the United States Government, whether enacted by its political, legislative or executive
department within the scope of its constitutional function, unless there be clear and
explicit authority to this effect appearing in the statute organizing the Commission.
" Second. — That no claim for indemnity, national or individual, except such as
existed against Spain at the tune of the execution of the treaty of peace can be enter-
tained by the Commission.
" Third. — That no national claim for indemnity on account of the destruction of the
Maine was ever asserted by the United States against Spain, and that no individual claim for
indemnity arose out of this occurrence
'Font tb. — That the battleship Maine, her crew and equipment, constituted an
entirety, a unit, a military and governmental organism, which iu its nature was not
severable; and that, as a consequence, any claim for indemnity which may be conceived
to have had any existence at any lime was a purely national claim, and could only be
affirmatively asserted and prosecuted as such by and on behalf of the Slate as claimant.
" Fifth. — That no individual claim for indemnity for the acts set out in the petitions
existed against Spain, and there is not now nor can there be any individual claim for
indemnity against the United States for said alleged acts by reason of the treaty of peace
between the United States and Spain of December 10, 189S, or otherwise.
" Sixth. -That the averments in the petition and documents referred to and made parts
thereof, and the history of events prior and subsequent to the destruction of the battle-
ship Maine clearly shows that the destruction of said vessel was at the time regarded at an
art of war.
" Seventh — That the subjt*:t matter, namely, the destruction of the Maine, ami a/I it*
incidents, was finally settled and disposed of before the creation of this Commission : First .
by the action of the constituted authorities of the United States at Washington and at
Paris ; Secondly, by the provisions of the act of Congress of March 30, 1898; Thirdly, as a
result of the treaty of peace between Spain and the United States of December in, i 898
\ The propositions of the Attorney-General are all referred to and answered in the
following argument, but as these points were prepared befoie the brief of the Govern-
ment's counsel was riled, the order of discussion adopted herein is somewhat different
from that adopted by the Attorney-General.
The Government has also printed and filed as a brief the argument of the counsel
who closed the case on its behalf, and as that argument and the brief are constructed on
different lines, it is impossible to answer them both consecutively.
J This point, is answered in this argument under points sixth and seventh, pages 23
et seg., post,
§ Tliis point is answered as to the questions of exterritoriality under the Seventeenth
Point, pp. 04 et seg., post, and as to the right of sailors to recover indemnity under the Six-
teenth Point, pp. 52 it seg., post.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 7
"III. — That the Commission lias no jurisdiction of the subject-
matter involved."*
The petitioners who have filed claims are sailors and marines, or the
widows, orphans or mothers of sailors and marines of the United States
Navy; they are citizens of the United Stales; they allege that they have,
or hail, claims against Spain which the United States has assumed; they
have invoked the aid of this Court to obtain an "adjudication " thereof,
and they submit that the claims are just and within the jurisdiction of
this Court, whose dutv as well as whose right it is to so adjudicate them;
and they have every confidence that this Court will promptly and
fearlessh adjudicate the just claims of American citizens, regardless of
any consequences which may ensue, even to the extent, if it becomes
unavoidable, of wounding the sensibilities id' a foreign nation.
The demurrers should be overruled and in the absence of direct proof
that Spain was not responsible, directly or indirectly, for the destruction
of the Maine, judgment should lie rendered for the petitioners to the full
amount of their claims, [n support of their position the following points
are submitted on behalf of the petitioners.!
* The jurisdiction of this Court to consider those claims is discussed under the fir>-t
four points, pp. 8 el se</., post.
f This printed argument is mainly the substance of the subset ibing counsel's mat
argument before the Spanish Treaty Claims Commission on the demurrers at Washing.
ton, December 1 8th, 19th, 20th and 21st, 1901. It has been somewnat lengthened so aa
to reply to the brief and the argument tiled by the Government.
The argument was heard by the full Commission, consisting of William E. Chandler,
President, Gerrit. E. Diekema, James Perry Wend, William L Chambers and William
A. Maurv, Commissioners. Argument for the Government was made by Assistants
Attorney General William E. Fuller and Chas. W. Russell, and Alexander Porter
Morse, Charles F. Jones and Win. E. Rogers, assistants; and for the claimants in the
following order: Charles Henry Duller, of New York, anil Cliflord Walton, Benjamin
Micou, W. W. Dudley and Hilary A. Herbert, of Washington, !>. C. At tho close of the
argument an order was made permitting the Attorney-General to file a brief within one
week and the claimants to file briefs within one week thereafter.
BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
POINTS.
i.
AS TO JURISDICTION OF THE SPANISH
TREATY-CLAIMS COMMISSION OVER
THESE CLAIMS.
FIRST. The jurisdiction of this Court is lim-
ited only to the extent that the claims which
it can -receive, examine and adjudicate/"
must be those of citizens of the United States
against Spain for injuries arising- between
February 25, 1895, and April 11, 1899, and
-which the United States agreed to assume and
adjudicate by the Seventh Article of the
Treaty of Paris.
The statute of March 2, L 901, not only expressly clothed this Court
with jurisdiction over, but also made it the duty of the Commission
to "receive, examine ami adjudicate" all such claims of citizens of
the United States of this nature. The petitioners have brought them-
selves within the letter and spirit of the statute, as well the evident
intention of Congress, by alleging in their petitions all the facts necessary
to bring their claims within the jurisdictional limitations.
If their allegations are true they have claims against Spain and this
Court is bound to receive them, examine them, and adjudicate them in
their favor ; if their allegations are untrue the Court is equally bound
to receive the claims, examine them, and adjudicate them against the
claimants and in favor of the United States.
In fact, the Court already has rerrira/ the claims, the Attorney-
General is asking the Court to examine them, and if the claims should
he dismissed for any cause it would necessarily be an adjudication by
this Court.
The Attorney-General declares that it is beyond the power of this
Court to adjudicate these claims, because it was contrary to the intention
of the Peace Commissioners who made the treaty to assume these claims,
and also because it was contrary to the intention of Congress in passing
the statute creating this Court, to confer such jurisdiction upon it. There
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 9
is nothing either in the treaty, or in the statute, to indicate that such
were the intentions of the makers of one, or of the enactors of the other.
The terms used are general enough to include all claims which could
in any way be advanced by citizens of the United States for claims
which they allege are amongst those assumed by the United States by
Article VII. of the treaty and which arose between the specified dates,
and they are specific enough to exclude all those which do not come
within those conditions. If the claims arose between the specified dates,
and ever existed, or if the petitioners allege that they so arose and existed,
and the petitioners are citizens, any decision of this Court that the
claims have been discharged or obliterated by the treaty of peace must
be made necessarily after reception, examination and adjudication, and
therefore is within the jurisdiction of the Court.
The Attorney-General's position is inconsistent. On the one hand, he
asks the Court to hold that it has no jurisdiction over these claims, and
on the other, he asks it to adjudge that they have been obliterated by
the treaty of peace. To sustain his position, he cites authorities on
international law as to the effect of the treaty of peace, which are wholly
inapplicable to these cases : they will be discussed under subsequent
points on the merits of the demurrers. This and the three following-
points will be confined to the question of jurisdiction of this Court.
In this respect the petitioners contend (a) they have alleged in their
petition every fact necessary to confer jurisdiction and (b) that the ques-
tion of Spain's responsibility being a question of fact cannot be raised on
demurrer as it requires a direct denial of facts alleged in the petition to
controvert it.
A. Every fact necessary to confer .jurisdiction has been alleged
in the petition.
The Spanish Treaty Claims Commission is a court of limited juris-
diction only in the sense that the suitors before it, and the controversies
adjudicated by it, must be those referred to in the act of March 2. 1901.
Otherwise than this the jurisdiction of the Commission as a court is
complete, and its power to examine and adjudicate the claims referred to
it is even more extensive than the statutory and constitutional courts of
this country, as it is not limited by the statute, or by the common, law;
it is expressly provided that claims are to be received, examined and ad-
judicated according to their merits, and the principles of equity and of
international law.
The Attorney-General, in the brief submitted by him on the prelimi-
nary objections raised by the claimants to his motions to dismiss these
cases, has defined the jurisdiction of this Court, and while the claimants
do not admit that his statement is in all respects correct, it will be ad-
mitted, for the purpose of this argument, so as to save discussion and
10 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
reduce it to the narrowest limits possible, as he has undoubtedly slated
the rules as favorably as he possibly could for the Government.*
He must admit, of course, the converse of his own proposition, which
must be accepted by this Commission as a statement that its jurisdiction
is complete to receive, examine and adjudicate claims, whenever (1) the
subject matter is an existing claim for indemnity against Spain, which
has not been heretofore diplomatically, judicially or otherwise disposed
of by competent authority and is not contractual in its nature, by
claimants (2) who are citizens of the United States, and were so at the
time of the acts complained of, which (3) occurred between February
25, L895, and April 11, 1899, in (•!) the island of Cuba.
The abstract of the petitions in the statement (ante, p. 2) shows that
the claimants have brought themselves within every jurisdictional condi-
tion prescribed by the Attorney-General ; the claimants are citizens of
the United States ; they were such at the time of the acts complained of,
which took place in Havana, Cuba, on February 15, 1898, within the
time specified in the treaty. As those allegations must, on the argument
of these demurrers, be taken as true, they dispose of the second, third
and fourth sub-divisions of the Attorney-General's statement as to juris-
diction. The jurisdiction of this Court over these claims is therefore
admitted unless it appears from the petitions themselves that the subject
matter is not "existing claims for indemnity against Spain which have
not heretofore been diplomatically, judicially or otherwise disposed of by
competent authority;" it is, of course, apparent from the petitions that
the claims as against Spain are not contractual in their nature.
B. The question of the responsibility of Spain for the acts com-
plained of cannot he raised on these demurrers as the petitions
sufficiently allege negligence as a traversihle feet, and a general
* On page 1 of the brief referred to he says :
" The jurisdiction is special and limited in respect of (1) subject-matter, (2) parlies, (3)
time, and (4) territory.
" First. The subject-matter : The only claims which the Commission is authorized to
' receive, examine, and adjudicate' are claims for indemnity— existing claims for indem-
nity which were primarily against Spain, and which have not been heretofore diplomatic-
ally, judicially, or otherwise disposed of by competent authority. Contractual claims are
not within its jurisdiction.
•' Second. The parlies: The parties must have been citizens of the United States at
the time of the acts complained of.
" Third. Tht time: The time when the claims originated must be a period between
the 25th day of February, 1895, and the 11th of April, 1899.
"Foueth. The territory : The territory in which the claims originated must be the
island of Cuba.
" All these conditions must be fulfilled and must appear affirmatively in the petition
before the Commission can entertain jurisdiction of the alleged claims." (Treaty of Paris,
Article VII ; act of March 2, 19ul ; Rules of the Commission.)
ARGUMENT OF CIIAS. H. BUTLER IN MAINE CASES. 11
allegation, without stating the particulars showing the negli-
gence, is sufficient as against a demurrer for insufficiency.
This is such an elementary principle of law that it is hardly necessary
to cite any authorities; a few, however, are referred to.*
This point, however, is also disposed of by the statement of the
Attorney-General, which appears in his brief on these demurrers, filed
December 1st, that the destruction of the Maine was the cause of the
recent war with Spain. The claimants do not admit that the destruction
of the Maine was the cause of the war, but as the Attorney-General has so
alleged it, he must be bound thereby, and it is not to be presumed that the
cause of a war declared by the United States against another power was an
act for which the foreign Government was not responsible. The fact that
the political departments of the Government have declared that the ab-
horrent conditions in Cuba had culminated in the destruction of the
Maine, eliminates the question of Spain's responsibility for the destruc-
tion of that vessel from these cases forever, no matter what the decision
of the Court may be on these demurrers.
The single point, therefore, on which there can be any discussion as
to jurisdiction of this Court to eutertain these claims is as to the subject
matter thereof. In that respect the petitions show that the claims are for
damages occasioned by a tortious act committed by, or as the result of
the negligence of, Spain; that allegation is sufficient in itself to confer
not only jurisdiction upon, but also to make it the duty of, this Court to
receive, examine and adjudicate these claims.
SECOND. It is the duty of this Court to take
jurisdiction of these claims and adjudicate
them, as much for the benefit of the United
States as for the claimants, and the intention
of Congress that the Commission should exer-
* Harper vs. Norfolk it W. R. R. Co., 36 Fed. Rep., 102;
Mobilr it 31. R. Co. vs. Crenshaw, 65 Ala., 566.
and many other cases cited in Abbott's Trial Brief on the Pleadings, page 259. And a
general allegation of negligence is equivalent to whatever degree of negligence is necessary
to sustain the pleading,
Nollon vs. Western R. R, Co., 15 N. Y., 444.
Rockford,&c, R. R. Co. vs. Phillips, 66 111., 551.
" The rule is well nigh universal that in an action for negligence the plaintiff need
not set out in detail the specific acts constituting the negligence complained of, as this
would be pleading the evidence. A general averment of negligence in the particular act
complained of resulting in damages is good, at least as against a general demurrer."
Enc. of Pleading & Practice, vol. 14, pp. 333-4, citing numerous cases.
12 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
cise jurisdiction over all claims properly-
presented by verified petition is evidenced
by the act itself.
The act of March 2, 1901, shows on its face that it was the intention
of Congress to provide a court which should receive, examine and adjudi-
cate the claims of all persons who should file petitions in accordance
therewith, as the petitioners have done, alleging claims against Spain:
it also shows that it was the intention of Congress that the Court should
determine whether all claimants who should assert they had claims by
filing verified petitions had or had not valid claims against Spain which
had been assumed by the United States under the Treaty of 1898, and
that the jurisdiction of the Court so created should be wide enough to
enable it to receive, examine, adjudicate and finally dispose of every claim
which should thus be brought before it. It must be remembered in this
respect, that it is only by this Court's assuming jurisdiction and re-
ceiving, examining and adjudicating claims that the United Slates can
be finally relieved, by the judgment of a court of competent jurisdiction,
from liability for claims which do not exist. It would certainly defeat
the purpose of Congress if this Court should decline to adjudi-
cate claims brought before it for want of jurisdiction, as such dis-
posal of claims presented would not be a determination which would re-
lieve the United States of liability for such claims, and should thus
leave them not only undetermined by this court, but undeterminable by
any Court, as no other tribunal has any jurisdiction over them. It
is, therefore, the duty of this Court to take jurisdiction of these claims:
the proper method for the United States is to defend all claims for
which, in the opinion of the Attorney-General, it is not liable, or which
have been in some manner settled, cither by answer or demurrer setting
up the actual defenses in fact or in law thereto and thus, if successful,
obtaining a final judgment on the merits of this Court to the effect
that such claims are not meritorious and that the United States is not
liable therefor. Such an adjudication would be beneficial to the United
States, for it would actually be the judgment of a Court of competent
jurisdiction: and would relieve Congress of all moral obligation to pro-
vide for such claimants. On the other hand a refusal to adjudicate
on the ground that the Court does not possess the jurisdiction to do so,
would throw back upon Congress the question of providing some other
method of ascertaining the justice of the claims dismissed, notwith-
standing the fact that this com! exists for the very purpose of ascertaining
what claims exist.
The benefits of the act must be mutual. The United States cannot
obtain the benefit of the act and have the non-existence of claims de-
termined without giving the claimants an equal opportunity of having a
complete adjudication upon the merits of their claims.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 13
THIRD. Commissions and Courts similarly
constituted, and possessing- similar jurisdic-
tion, have always considered their jurisdic-
tion wide enough to embrace all claims arising
out of, or in any way connected with, the mat-
ters referred to in the organic act or treaty.
The extent of the jurisdiction of tribunals of this nature has fre-
quently been the subject of discussion, and the jurisdiction has always
been sustained as being co-extensive with any claim which could possibly
have been included in the general terms used.*
The construction of a treaty clause referring to all claims of citizens
of the United States against a foreign government and limited only
as to time of their inception, and the ownership thereof by citizens of
the United States, was the subject of a decision by the Venezuela Claims
Commission of 1889.
That such Commission did not unduly extend its own jurisdiction is
evidenced by the dismissal of twelve claims, of which three were dis-
allowed on motion of the claimants, four for want of jurisdiction and five
without prejudice to their presentation elsewhere. The commission was
composed of John Little, of Xenia, Ohio, for the United States, Jose
Andrade for Venezuela, and at first Mr. Samuel F. Phillips as third Com-
missioner, agreed upon by the arbitrators, and after his resignation Mr.
John V. L. Finlay, of Baltimore, Md., who was selected by the rep-
resentatives of the two countries to succeed Mr. Phillips.
The Conventions of December 5, 1885, and March 15, 1888, provided
for the settlement of claims between Venezuela and the United States,
and by article II "all claims on the part of corporations, companies, or
individuals, citizens of the United States, upon the Government of*
Venezuela, which may haw been presented to their Government or to
its legation at Caracas, before the 1st day of August, 1868, and which
by the terms of the aforesaid Convention of April 35, I860, were proper
to be presented to the mixed commission organized under said Conven-
tion shall be submitted to a new Commission."
To this commission there was presented the claim of W. II. A spin-
wall & Co. for certain bonds of the Government of Venezuela, and the
* " A court of limited jurisdiction is therefore not necessarily an inferior court in its
technical sense, and it is said that those created by express constitutional enactments,
with general and exclusive powers to hear and determine all controversies within their
particular judicial sphere, cannot be said to be courts of limited or special jurisdiction
within the meaning of the rule as to presumptions."
12 Encyc. of PI. and Pr.. 159-161, and see numerous cases cited in the notes,
especially Den vs. Hammel, IS X. J. L., 78.
14 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
question was raised as to whether or not the Commission had jurisdiction*
of such a subject. A similar question had arisen under the Convention
of 1857, between the United States and New Granada, in which it was
held that bonds of New Granada were not claims within the terms of the
Convention, and therefore not within the jurisdiction of that Com-
mission, f
Mr. Little delivered the opinion for the Venezuela Commission in
which a majority united, and it is therefore the official utterance of the
Commission.! The thirty-five pages of opinions in this case read as
though they were written expressly for the cases at bar.
The decision in the New Granada case is discussed sentence by sen-
tence, and the fallacies upon which it was based exposed and refuted.
The definition of the word '• claims " under municipal and interna-
tional law, and the proper interpretation of the words '"all claims which
arose before a specified time," is discussed and authorities upon inter-
national law are cited as to their meaning and effect. §
On page 3031 the clause as it actually existed in the convention was
placed in a parallel column with the clause as it would be interpreted
by those who assailed the jurisdiction of the Commission, and the
opinion says in regard to the two clauses : " It would be a bold declara-
tion to assert their substantial sameness. Had it been the intention
thus to limit the claims in character, it is difficult to understand why
language to that end was not used as had been done before, as seen, and
by the same parties, in convention with other powers." In fact, the
opinion holds that where a convention used the words "all claims,"
which were held by citizens of the United States and which were
limited in any way by time of their origin, that it made no differ-
ence whether the claims were contractual or tortious, but that their
ownership as to citizenship and the time of their origin were the only
questions which the Commissioners could consider aud that they were
bound to assume jurisdiction of all claims, regardless of their character.
The opinion refers to certain cases under the Mexican Commission of
1868, in which Sir Edward Thornton, as umpire, excluded certain cases
from the consideration of that Commission, on the ground of their char-
acter, || but the distinction between these cases aud the ones under
present consideration is seen at once by an examination of the treaty,
* This question is discussed here only from a jurisdictional point. It is again referred
to as it affects the merits under the Eighteenth and Nineteenth Points, pp. 67 el seq.,post.
\ Moore's Arbitration, vol. 4, pp. 3616 et seq.
\ Moore's Arbitration, vol. 4, pp. 3616—3642; Mr, Finlay concurred, hi., 3642-3651.
§ Mr. Justice Story in Prigg vs. Puma. (16 Pet., 515); Lord Chief Justice Cockburn
in Queen vs. The Guardians (9 L. Q. B , 395); Circuit Judge Deady in Dowell vs. Cordwell
(I Sawyer, 228); Chief Justice Marshall in The Nereidi (9 Cr., 419), and many other
authorities.
|| Moore's Arbitration, vol. 4, p, 3628.
ARGUMENT OF CHAS. H. IiUTLER IN MAINE CASES. 15
for the character of the claims referred by the Convention was expressly
stated as those "arising from injuries to their persons or property, '
and it is evident from the language itself that claims arising ex contractu
would not lie embraced in that description.*
When the jurisdiction of the Mexican Claims Commission »f 1839
was the subject of discussion and the question was raised whether it
could take cognizance of certain cases, .Mr. Webster's opinion, as the
same is reported in Professor Moore's account of the proceedings of the
Commission, was that the extent of jurisdiction must be determined by
the Commission itself and could be exceedingly broad, t
* On page 3625, after oiling United States vs. Dickson (15 Peters, 166) and Minis vs.
United States (Id., 445), Mr. Little uses the following words peculiarly applicable to the
construction of the relinquishment and assumption clauses of Article VII. of the treaty of
1'aris, ami the jurisdiction of this Court over all claims which were not affected by the
limitations of time and citizenship:
" Almost in the language of the court it can be said: The office of the qualifying
words relative to 'claims ' in the treaty is to except demands from the general terms ' all
claims' and to qualify and restrain their generality. And it would seem to be of little
moment in what form those qualifying words were put, whether in that of a proviso or
in that in which they stand. The principle of construction would be the same— that
being that the qualifying words are, while the general terms of submission are not, to be
taken in a restrictive sense, if there is to be any distinction.
The comprehensive term 'claims' is the one always employed in similar claims
treaties, though sometimes with a synonym— or as near that as the language affords— and
is always accompanied with words of restriction. The restriction relates to ownership, time,
origin, character, or circumstance, or to several of these. Under the convention between
the United States and Ecuador (1864) ownership was the only qualification. It was com-
petent to present any claim before the commission against either State, provided it ue-
longed to a citizen of the other. In the treaty of 1834, between the United States aid
Spain, a single circumstance determined admissibility, to wit, that the claim had been
1 preferred by either party against the other.' Usually several of the elements are em-
braced in the terms of qualification. The treaty of 1795, between the powers last men-
tioned, comprehended in them ownership, time, and character. The claims for adjustment
there were for losses sustained by citizens of the United States in consequence of their
vessels and cargoes having been taken by the subjects of His Catholic Majesty during tht
latt war between Spain and France.' In 1832 the United States and the two Sicilies
treated for an indemnity to be paid by the latter to American merchants ' for losses in-
flicted upon them by Murat by the depredations, seizures, confiscations, and destruction of
their vessels and cargoes in the years 1809, 1810, 1811, and 1812.' Here are the elements
of ownership, time, origin, and character. All the five elements named are embraced in
the qualifying terms of the •Alabama claims' treaty of 1871. It is unnecessary to par-
ticularize or to illustrate further. But attention may be directed still to two conventions
under this head, that of 1802 between the United States and Spain, embracing the qual-
ifying elements of time, ownership, and character, and that of 1864 between Fiance and
the Republic of Venezuela, comprehending the two latter only."
f 2 Moore's Int. Arbitration, pp. 1241, 1242:
" On several occasions, while the board was in session, Mr. Webster was appealed to
in respect of some matter on which it had assumed to act. In all such cases he consist-
ently maintained the position that it was an independent body, in whose proceedings it
would be manifestly improper and unwarrantable for the Executive to intervene— a posi-
tion eminently sound in law and wise in practice.
"November 12, 1841, the American commissioners inquired of Mr. Webster whether
10 BEFORE THE SPANISII TREATY CLAIMS COMMISSION".
The mixed Commission organized under Articles YI. and VII. of the
treaty between the United States and Great Britain, divided on the ques-
tion of jurisdiction, the American members, however, sustaining the
jurisdiction of the Commission, Mr. Christopher Gore and Mr. I'inkney,
both writing opinions.*
certain claims had, as the Mexican commissioners contended, been withdrawn from the
cognizance of the board. December 23, Mr. Webster in reply inclosed an extract from an
instruction of Mr. Forsyth to Mr. Ellis, minister to Mexico, of May 3, 1839, and a copy of
the note of the latter to the Mexican minister for foreign affairs of November 6, 1839, and
stated that, as the execution of the convention was b}- the convention itself and the act of
Congress confided exclusively to the commissioners, it was not considered to be the prov-
ince of the Department of State to express an opinion on the point. The cases in question
involved the acts of various Mexican officials, such as the seizure on the high seas of the
American schooner Topaz and the killing of her captain and crew. In some of the cases the
dismissal of an officer was demanded, in others a reprimand, and in others yet an infliction of
punishment, and in at least one instance an assurance was asked for that no disrespect to
the flag of the United States was intended. In bringing these several matters to the at-
tention of the Mexican Government, Mr. Ellis had declared that they were ' not embraced
in the convention signed * * on the 11th of April last.' Under these circum-
stances the Mexican commissioners, on January 16, 18-12, formally inquired of Mr. Web-
ster whether the reservation made by Mr. Ellis ' positively excluded the personal inter-
est' in the cases, and whether 'there only remain to be arranged between the two
governments the subjects which relate to their flag, their honor, and their prerogatives.'
Mr. Webster, on the 21st of January, answered that while it was not ' the province of
the Executive of the United States to express an opinion upon the business which the
convention has confided to the board of commissioners,' yet he would add, for the pur-
pose of information, that ' if all claims of citizens of the United States involved in the
case of the schooner Topaz, or in any other cases embraced by the first article of the
convention, shall be considered and disposed of by the boaid according to the terms of
the convention, it is certain that this government will not deem them a subject for any
further negotiation with that of the Mexican republic' ' The mixed commission
under the convention with that republic,' said Mr. Wrebster, ' has always been
considered by this government essentially a judicial tribunal, with independent
attributes and powers in regard to its peculiar functions. Its right and dut}-,
therefore, like those of ether judicial bodies, are to determine upon the nature and extent.
of its own jurisdiction, as well as to consider and decide upon the merits of the claims
which might be laid before it.' ( In this statement the personal claims in question were
held by the board to be within its jurisdiction, and were duly examined.
" The same position was maintained by Mr. Webster in other cases. On June 21, 1841,
one of the claimants, named Santangelo, requested him to direct the diplomatic represen
tative of the United States in Mexico toast the government for certain papers which the
commission had on an equal division refused to demand. Mr. Webster declined to grant
the request, saying that the functions of the Department of State in relation to the claims
were 'expressly limited by the convention to the transmission to the board of commis-
sioners of such documents as the Department may receive.' Subsequently, when the
request was renewed, he declared that the Executive of the United States had ' no right
to interfere for the redress of our citizens who may suppose themselves to have been
aggrieved by decisions of the commissioners under the convention with the Mexican
republic. That body is, in effect, a judicial body, and it belongs to its members alone to
determine the rights of claimants under the convention.' "
Moore's International Arbitration, Vol. 3, pp. 2277 el .«</., Mr. Gore says : " When
a complaint is brought before the Commissioners, the Board must take for granted that it
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. It
On the fourth day of the argument of the demurrers the President
of the Commission asked the counsel of the claimants if they would
"furnish reference to all cases in which a claim of an ambassador, for-
eign minister, soldier or sailor, for damages or injury received in the
line of duty has been presented to any international or domestic tri-
bunal authorized to adjudicate individual claims only."
The Attorney-General is attempting to divest this Court of juris-
diction over the claims of citizens because they wore the uniform of the
United States. To counsel for the' claimants it seems as though the
question of the President of the Commission should have been directed
not to the counsel for the claimants asking them to find cases in which
jurisdiction has been taken, but the counsel for the Government should
have been asked to furnish references in which jurisdiction had been de-
clined on account of the relations of the claimants to the Government.
Counsel for the Government has not furnished a single reference in
which any tribunal or court, international or domestic, has refused to
allow a claim on the ground that the claimant occupied a civil or mili-
tary position under Government. While there have been a number of
such cases, there have been many other cases in which the claim has
been made by one Government against another and there has been no
necessity of referring the matter to a tribunal, as it has been settled
diplomatically by the offending Government acknowledging its liability
and making proper reparation.* In such cases the claim has been
regarded by both Governments as an individual claim, as the indemnity
has been paid over directly to the individual sustaining the loss.
Some of the cases in which international tribunals and domestic com-
missions have adjudicated claims of this nature are those of: Crew of
the General Armstrong against Portugal ;\ like against Mexico;\ Mc-
ia within their competency or reler it to some other tribunal to determine the question."
Subsequently, when the English Commissioners withdrew, Mr. Gore filed an opinion in
which he declared that "To refrain from acting when our duty calls us to act is as wrong
as to act where we have not authority " ( Moore, 2290).
* See cases of Baltimore (V. S. vs. Chili), Chesapeake (U. S. vs. Great Britain); Ventral
Am, strong (U. S. vs. Portugal); Attache Uuesken (I . s. vs. Japan): Water Witch (U S. vs.
Paraguay); Sailors of the Corvette Dupliex (France vs. Japan); Col. Margery (Great Britain
vs. China), and other cases cited under the Sixteenth Point, pp. 52 et seq., post,
t Tlie Crew of the General Armstrong. This case is cited later under
other points. It is referred to here only in answer to the Commissioner's question as an
instance in which the individual claims of sailors on a privateer which was duly commis-
sioned by the United States were submitted to arbitration. Although it was held by the
arbitrator that the foreign country was not liable for indemnity, the question of jurisdic-
tion was not raised and the United States itself presented to an international arbitration
claims of its citizens, who as sailors on a commissioned privateer had actually received
from the United States prize money for their gallant conduct in the battle of Fayal. The
claim was advanced against the neutral nation for injuring men who at the time were fight-
ing against a declared enemy of the United States.
| Rice's case; in which 84,000 was awarded by the Mexican Treaty of July 4,
1898, to a United States Consul for unlawful arrest, and from the opinion it would appear
that it was exclusively for sixty hours' detention (1 .Moore's Int. Arb.. 3248).
18 BEFORE THE SPANISH TRKATY CLAIMS COMMISSION.
Keovrn against United States;* the U. S. Consuls in Mexico against
Mexico ; f I 'Irirli against Mexico. %
These few cases are cited nut because they are analogous as to fact.- or
merits to the claims at bar, but simply to show that no doubt has ever
been expressed as to the right of international or domestic tribunals to
take jurisdiction of claims against foreign governments because the
claimant held fiduciary or military positions under the Government, or
that such fact in any way affected his claim if a similar claim would
have been allowed to a citizen who did not represent his Government in
any capacity whatever.
FOURTH.— The burden of sustaining- a de-
murrer for want of jurisdiction in cases of
this nature is upon the moving party, and all
the presumptions are in favor of the peti-
tioners.
This Commission is the only Court which has jurisdiction of claims
of this nature, and if it should decline to take jurisdiction and sustain
these demurrers the petitioners will lie absolutely remediless and unable to
prove their claims before any court ; they would tind themselves deprived
of the remedy which Congress has given to all persons having claims
against Spain, notwithstanding the fact that they have alleged their
claims in the manner required by statute, and no fact stated in their
petitions has been in any way controverted or denied.
The presumptions in cases of this nature must be in favor of the cit-
izens whose claims have been taken for the public good, and whose only
opportunity for compensation is to be found within this forum.
* McKcown's case ; a sbipcarpenler in the service of the United States Govern-
ment during the Civil War was arrested by his commanding officer and subsequently dis-
charged alter a confinement of thirteen days ; he was a British subject, and alter the war
presented a claim to the mixed commission at Washington under the treaty of IS . 1 and
obtained an award for $1,467 against the United States (Moore's Int. Alb., 3211, and see
other cases referred to in note on same page).
t U. S. Consuls ill 3Ic.\icO. Before war was declared between the United
States and Mexico, consuls and vice-consuls of the United Stales were ordered to cease
their functions. There were a number of American citizens expelled: consuls filed their
claims before the Commission for damages by reason of this order, and the consuls' claims
were held to be valid by the Commission of 1851 to adjudicate claims of its i itizms
against Mexico assumed by the United States under the treaty of 1S4S(4 Moore's Int.
Arb„ 3336).
| Ulrit'll's case was a claim against the Mexican Minister, and was allowed by the
Mexican Commission of 1851, which adjudicated claims against Mexico belonging to
citizens of the United States assumed by the Tniled States under the treaty of 1848 (4
Moore's Int. Arb„ 3434).
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 19
The presumption must also exist that Congress did not intend to pro-
vide a tribunal of this nature, which should not have a jurisdiction
extensive enongh to cover all claims which would be presented to them.
To this extent the demurrer and motion to dismiss are practically the
same, and subject to the same rules of pleading and practice.*
This Court was created solely to assist Congress in appropriating
money to discharge the obligations assumed by the treaty of 18'.)8. It
was not necessary to have any Court. Congress could have referred
all claims of every nature whatever to Committees of its own body, and
no questions of jurisdiction could have arisen. Had Congress seen fit in
do so, it could have appropriated the money to pay the claims without
any adjudication by this Court or examination by any committee. It
has. however, become the regular rule, ami very properly so. for special
courts to be created so as to relieve Congress from the necessity
of investigating claims of this nature, which interfere with the
legislative duties of its members, and also so that Congress may be
assured of the justice and legality of the claims, and thus be enabled to
appropriate money for the payment of all just claims, and not to be sub-
jected to demands of petitioners for the payment of claims without
foundation.
In fact, this Court simply acts as the conscience of Congress to guide
it in making appropriations. Congress expressed !>y the enactment of
the statute of March W 1901, the wish to be informed of all claims as-
sumed by the United States under Article VII. of the treaty, and created
this Court for that purpose. This Court cannot pay the claims which it
adjudicates favorably to the claimant; Congress must appropriate the
money therefor. Congress wishes to be as fully informed in regard to
alleged claims which were not assumed by the United States as it does in
regard to those which were assumed.
* " A motion to terminate a suit against the will of the plaintiff can generally be
made only by a party to the proceeding ami the burden lies upon him to see that all the
proceedings authorizing such a termination are substantially complied with."
6 Encycl. ot Pleading and Practice, 875, under Dismissal.
"A motion to dismiss lot- lark of jurisdiction is appropriate only where the defect
appears on the face of the record. Mote correct practice requires the objection to be
taken by answer of demurrer, or by a rule to show cause."
ti Encycl. of Pleading and Practice, S87. under Dismissal.
The motion is to be determined on inspection of the bill only ; the Court is not
authorized to consider the answer and proof.
/(/., p. 892, and numerous cases cited and notes on p. 870.
I-tntt vs. Bent, 43 Vermont, -14.
Bliss vs. Smith, 42 Vermont, 198,
M'iore vs. Helms, 74 Ala., 368.
Jewell vs. Lamoreavx, 30 Mich., 13K.
Holloway vs. Freeman, 22 111., 197, at p. 201.
" A bill is demurrable if want of jurisdiction appears upon the face thereof, otherwise
a plea is proper."
Stephenson vs. Duels, 56 Maine, 75.
20 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
The presumptions must be that Congress having covered every class
of claimants when it used the word all, it cannot be presumed that
in creating this Court and giving it jurisdiction, and also making it
its duty, to "• receive examine and adjudicate all claims," it expressly
excepted a single class of claimants whose claims are of the most im-
portant character, and are certainly the mosl entitled to the consideration
of national sympathy and national indemnity of all the claims presented
to this Commission.*
II.
AS TO THE MERITS OF THE DEMURRERS.
FIFTH. The claims of the petitioners should
be allowed by this Court " on their merits and
on the principles of equity and of international
law."
The argument thus far has referred only to questions of jurisdiction.
Assuming that the Court will take jurisdiction, even if motions were
properly before the Court in those respects, the demurrers should be
overruled on the merits.
When, on March 2, 1901, Congress created this Court, it well knew
that according to the strict rules of the common law and of statutory
construction, claims might, be presented to it for adjudication which
could not be allowed unless the Court found that the United States was
bound in good conscience to indemnify the claimants for claims in ac-
cordance with precedents of international law and conduct between
nations under similar conditions, and it accordingly clothed the Court
with jurisdiction to adjudicate the claims according to their merits and
the principles of equity and of international law.
1. There can be no doubt as to the merits of the claims, as upon the
demurrers it is necessarily admitted that the claimants are citizens: that
they sustained the damage complained of; and that such damages were
caused by the negligence or wrongdoing of the Spanish Government;
the question of amount is. of course, not now before the Court.
2. The claimants are entitled on "the principles of equity " to
recover from the United States whatever the United States could have
demanded on their behalf from Spain at the time that the treaty was
made. The claimants were not present. The Commissioners appointed
liv the United States to negotiate the treaty, however, represented them,
and it is not to be presumed that Commissioners appointed by the Presi-
dent to arrange terms of peace with a conquered foe would either
"The first section of the Act of March '.!. 1901, creating this Court, is quoted on
page S of this brief, mite.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 21
forget to include or intentionally omit any claims which could have been
presented had there been no war, and the negotiations related not to a
treaty of peace but solely to the settlement of claims.
Peace is the highest object sought in the conclusion of treaties, and.
therefore, the rights of individuals must give way for the sake of
national peace: but the Government, in making peace for the good of
the nation, must not and will not, forget the individual rights of its
citizens. Congress unquestionably intended, in especially including the
principles of equity as a basis for the adjudication of these claims, that
the claimants should have the benefit of every presumption to which
they could possibly be entitled, and which under stricter rules of law
they might not be able to invoke.
:i. On "the principles of international law," the United States
could have demanded indemnity for these claimants from Spain; and
this Court must allow such as are similar to those which have heretofore
been made the basis of international demands and pay 11K as such
precedents are tin' only guides for their decisions.
It was argued by counsel for the Government, and is also stated in
their brief, that the precedents cited by claimants are not binding upon
this Court, lint this einnot be sustained, for it has frequently been
decided by the Supreme Court of the United States that international
law has always been recognized as a part of the law of tin' United States;
that it is for the Court to determine what principles and rules have
actually become incorporated into our law. and which of them are
applicable to the case before it; and not only must decisions of o.ur own
Courts be followed, but decisions of courts of other countries and the
actions of this and other Governments under similar circumstances must
be taken as guides and precedents; that in the absence of any treaty
stipulation, statute or accepted provision of law, it is the duty of the
Courts to follow such precedents as by direct application, or by analogy,
can guide the Court to a correct decision.*
Counsel for the Government in their arguments and briefs maintain
that the demand for indemnity ou behalf of a sailor when killed or ill
treated in a foreign country has been purely a national matter, and one
* In the raqitette Habana, U. 3. Sup. Ct., 1900, 175 U. S., 677, Gray, /., says (p. TOO):
" For tins purpose, where there is no treaty, anil no controlling executive or legislative act.
or judicial decision, resort must be had to customs and usages of civilized nations ; and as
evidence of these, to the works of jurists and commentators, who, by years of labor, re-
search and experience, have made themselves peculiarly well acquainted with the subjects
of which they treat."
See, also, as to international law being a part of the law of the land.
Hilton vs. Ouiyol, I '. S. Sup. Ct., 1895, 159 U. S., 113, Gray, ,/.
Fremont vs. United States. V. S. Sup. Ct,. 17 Howard, 542. 547.
The Scotia, U. S. Sup. Ct,, 14 Wallace. 170, 188.
Respublica vs. De Longchamp . Sup. Ct , Penna., 1 Dallas, 111, 116.
Moultrie vs. Hunt, N. Y. Court of Appeals, 23 N. T., 394, 396.
23 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
which the Government would or would not make according to its own
inclination, and that the fact that demands have been made and collected
does not necessarily oblige this Court to hold that the Government was
obliged to make such claims on behalf of those who suffered by the
Maine, and that if such obligation did not exist against this Govern-
ment to make the demand on Spain, no obligation now exists against it
to pay the claim after Spain has been released therefrom.
If this proposition is correct it practically relieves this Court of its
jurisdiction over nearly every other claim which has been filed; the same
rule would equally apply to all claims of whatsoever nature, for formal
demand had not been made prior to the declaration of war. Claims of
citizens of one country against the Government of another are, as to cer-
tain features, always national, and it is also optional with a Government,
to a certain extent, to determine whether it will, or will not, assert the
claim. It is sometimes inadvisable to do so for political reasons ; sometimes
the weakness of the State whose citizens have suffered injury prevents their
claims from being asserted with the vigor necessary to enforce them.
The question in these cases, however, for this Court to determine, is what
the Government could liave done in regard to these claims when the
Treaty of Paris was negotiated. The Government cannot now ask this
Court to relieve it from any claim or class of claims by asserting that
it failed to present the claims properly or that possibly it might under
certain circumstances have declined to present them.
If this Court finds that on any previous occasions, be they few or many,
the United States demanded and collected indemnity from foreign nations
for chums similar to those here presented, which it has paid over to indi-
viduals similarly situated to these claimants, then it is bound under the
statute which requires it to adjudicate these cases on principles of equity
and of international law, to make their award in favor of the claimants.
That the United States has made such demands, collected such in-
demnity, and so applied the amount is beyond question. See casesofthe
Baltimore, Wyoming, Water Witch, Virginias, General Armstrong, At-
tache Hueskin, and other cases cited under other points.*
Counsel for the Government in their brief advance the proposition
that in the Baltimore, Water Witch and other cases the Government of
its own motion demanded the indemnity and was not requested to do
so by the sufferers themselves, and claimed that for this reason it can-
not be asserted that a claim existed. In fact, they practically claim
that because on some occasions the United States has voluntarily
asserted claims of this nature that other persons who were entitled
thereto cannot as a matter of right assert claims which have similarly
arisen. Certainly a proposition of that nature does not need any argu-
ment to review it. The fact, however, as slated in another point,! t'111'
the United States formally, through the President, Secretary of State
* See Sixteenth Point, pj> 52 et sen., post.
f See Nineteenth Point, pp. 75 el sty., post.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 23
and Minister Woodford, asserted to Spain that it would expect Spain
to make such reparation as one civilized nation should make to another,
and this statement relieved the claimants themselves from any necessity
whatever of presenting these claims to Spain or asking their Government
to take them up.*
SIXTH.— The Attorney General's proposition
that the destruction of the Maine was the
cause of the war is correct only so far as it
places the responsibility of that act on Spain,
otherwise it is untenable.
The Attorney-General based the motions to dismiss chiefly upon a
proposition which he still adheres to as the basis for the demurrers,
and which consists of four elements, two of which are distinct state-
ments of fact and two of which are conclusions of law, as follows- (1)
Spain was responsible for the destruction of the Maine; (2) such destruc-
tion was the cause of the war; (3) the treaty of peace obliterated all claims
for matters causing the war and therefore claims arising from the de-
struction of the Maine " passed into oblivion " and were not amongst the
claims of its citizens against Spain which the United States assumed by
Article VII. of the Treaty of 189S; (i) that such obliteration of the
claims of the United States and its citizens relieved the United States
from compensating its own citizens whose claims were thus obliterated
and sacrificed for the public good.
No matter how he may try to avoid stating both of the above facts,
they are necessarily asserted by the Attorney-General as component parts
ol his proposition, as it cannot under any circumstances be assumed that
war was declared by the United States against Spain for the destruction
of the Maine unless Spain was actually as a matter of fact responsible
therefor.
It is needless to say that the claimants not only admit, for they assert,
Spain's responsibility lor the destruction of the Maine; they do not,
however, admit the other assertion that the destruction of the Maine was
the cause of the war, or the conclusion attempted to be deduced therefrom
that claims connected therewith passed into oblivion as between the
United States and its own citizens.
* In the case of Panama Riots where the United States referred to the easrs en blue
and the umpire to whom was submitted t lie question as to whether claims could be con-
sidered as having been presented under such circumstances held that where there are
many sufferers arising from a single cause and the t-overnment refers to them as a class,
that it was a sufficient presentation to bring them within the terms of the treaty, and
under the jurisdiction of a Commission appointed to adjudicate claims which had been
previously presented. ('2 Moore on Arbitral ion, p. 1376.)
24 BEFOKE THE SPANISH TKEATV CLAIMS COMMISSION.
The claimants having asserted in their verified petitions thai Spain
was responsible for the destruction of the Maine, and the Attorney-Gen-
eral having also set it up as the basis of these motions by asserting that
it was the cause of the war, there can he no question that these claims
are within the jurisdiction of this Court unless they were obliterated hy
the treaty of peace and not assumed by the United States.
The position taken by all the counsel for the claimants in regard to
the destruction of the Maine has been consistent throughout, and is dis-
tinctly stated under (he next point. The various positions taken by
the counsel for the Government has been so inconsistent with each other
and with the facts that it is proper to call the attention of the Court
thereto.
In the opening argument the Government took the position that the
destruction of the Maim- was the cause of the war. and mi mure than one
occasion during the argument the expression "atrocious act," or its
equivalent, was used by counsel for the Government; in another argu-
ment on behalf of the Government the statement was made that the de-
struction of the Maine was an act ol war; during the closing argument
there was open discussion in the court-room between two of the Govern-
ment's counsel as to whether it was an act of war or merely one of the
causes of the war, the result of which was the withdrawal of I he ' ' act of
war " theory and adherence to the "cause of war " theory.
Ordinarily upon argument of a demurrer the statements contained in
the petition are taken as true, without in any way rendering the demur-
ring party liable to charges of inconsistency for subsequently denying
allegations which are thus admitted only for argument. In this case,
however, the Attorney-General was confronted with the position that he
could not sustain his demurrer without going outside of the record and
so instead of relying upon the allegations in the petitions, he alleged
extrinsic facts to prove that Spain actually destroyed the Maine, and
thereby caused the subsequent war. This position he evidently con-
siderered necessary so as to neutralize the effect of admitting Spain's
wrongful act, as alleged in the petitions.
While this position was finally taken on the argument, the Attorney-
General has foreseen that if these demurrers should be overruled he
could not subsequently answer denying the allegation that the Maine
was destroyed by the Spanish Government without laying himself open
to further charges of inconsistency. The Government's brief, therefore,
endeavors to qualify the implied admissions by charging the American
people with having declared war against Spain, not because it blew up
the Maine, hut because the American people believed that Spain was re-
sponsible thereloi; it actually goes so far as to declare that such belief
was as potent a factor in a declaration of war as though it had been
actually proved that Spain was responsible for such destruction.
It is a more serious matter, however, than the Attorney-General
thinks to charge the American people, the Congress of the United
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 25
States and President McKinley with having declared war, not upon
ascertained facts and for existing causes, but upon the mere belief
that a criminal act had been committed, which, if true, would justify,
not war, but demand for the indemnity which had been offered if the
responsibility were proved.*
SEVENTH. It is not an historical fact that
the destruction of the Maine 'was the cause of
the war; this appears from the legislative his-
tory of the declaration of war with Spain, and
on demurrer no facts can be asserted except
such as are within the judicial knowledge of
the Court; the action of the executive and
political departments of the Government
clearly indicates that the war of 1898 with
Spain was not declared on account of the
destruction of the Maine.
The position of the claimants in regard to the destruction of the
Maine and its relations to the war which subsequently followed between
the United States and Spain has never varied and, notwithstanding any
statement of the Attorney-General to the contrary, is consistent with all
other propositions advanced by them. They contend that the act re-
sulted either from criminal negligence or by actual direction of the
Spanish Government during a time of peace and was in direct violation
of treaty stipulations ; that it added a culminating factor to the abhor-
rent conditions which existed in Cuba and justified the United States in
demanding that Spain withdraw her sovereignty therefrom, and that had
Spain recognized in advance the hopelessness of a contest with the United
States and withdrawn from Cuba, the claims for destruction of the Maine,
both national and individual, would have been presented and pressed for
payment in the same manner as other existing claims would have been
presented and pressed. That the war resulted from Spain's refusal to
withdraw from Cuba and a practical declaration of war on her part
* < >ii page 4 of the Government's brief it is said: " We do not intimate that the destruc-
tion of the Maine was caused directly or indirectly by the act or negligence of Spain; but
one thing we do affirm as a matter of fact of history, that at the time the almost universal
belief of the American people was that the Queen of Spain was responsible for that
dreadful catastrophe. This belief was shared by Congress, as appears from the various
resolutions that were introduced and of the joint resolution approved on April 20, 1898.
The fact that the people, Congress and the President believed at the time that Spain was
responsible was just as potent a factor in causing the war under the existing circum-
stances as though that responsibility had been fixed upon Spain." The Attorney-General
seems to have lost sight of the fact that on these demurrers Spain's liability is necessarity
admitted.
26 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
against the United States is clearly demonstrated by the legislative his-
tory of the declaration of war, as it appears from the Congressional
Record, the messages of the President of the United States, and the cor-
respondence between the United States and the Spanish Government
through the regular diplomatic channels.
The destruction of the Maine occurred on February 15, 1898. Long
prior thereto the President of the United States had called attention to
the conditions existing in Cuba and had declared that if they were not
ameliorated by the Spanish Government it would be necessary for the
United States to intervene and protect its interests in that island.*
Immediately after the destruction of the Maine a Naval Court of
Inquiry was appointed pursuant to statute, which, on March 21st,
reached the conclusion that the destruction of the Maine was not due to
negligence on the part of the officers or crew, hut was caused by the ex-
plosion of a submarine mine, but no evidence had been obtainable fixing
the blame; on March 28th, said report, together with the testimony, was
transmitted by the President of the United States to Congress.f
On April 11, 1898, the President of the United States transmitted a
message to Congress on the relations of the United States to Spain by
reason of the warfare in the island of Cuba, in which message he referred
to the revolution in Cuba, which he declared had begun in February,
L895, and had reduced Cuba to want, paralyzed its commerce and seri-
ously involved the commercial and political interests of the United
States. |
* See First Annual Message of President McKinley, transmitted to Congress Decem-
ber 6, 1897, Richardson's Messages, Vol. X., pp. 127 el »</.
t "Tlie conclusions of the Court are:
That the loss of the Maine was not in any respect due to negligence on the part of any
of the officers or members of her crew ;
That the ship was destroyed by the explosion of a submarine mine, which caused the
partial explosion of two or more of her forward magazines ; and
That no evidence has been obtainable fixing the responsibility for the destruction of
the Maine upon any person or persons.
I have therefore directed the finding of the Court of Inquiry and the views of this
Government thereon be communicated to the Government of Her Majesty the Queen Re-
gent, and I do not permit myself to doubt that the sense of justice of the Spanish nation
will dictate a course of action suggested by honor and the friendly relations of the two
Governments.
It will be the duty of the Executive to advise Congress of the result, and in the
meantime deliberate consideration is invoked."
(Senate Document No. 207, 55th Congress, 2nd Session, March 28tli, 1S98.
t" The forcible intervention of the United States as a neutral to stop the war accord-
ing to the large dictates of humanity and following many historical precedents where
neighboring States had interfered to check the hopeless sacrifices of life by internecine
conflicts beyond their borders is justifiable on rational grounds. It involves, however,
hostile constraint upon both the parties to the contest as well to enforce a truce as to guide
the eventual settlement.
" These elements of danger and disorder already pointed out have been strikingly
illustrated by a tragic event which has deeply and justly moved the American people. I
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. Zi
He then summarized the grounds for intervention, first, in the cause
of humanity; second, that we owed it to our citizens in Cuba to afford
them protection and indemnity for life and property which no Govern-
ment there can or will afford; third, to prevent injury to the commerce,
trade and business of our own people, and, fourth, which he declared to be
of the utmost importance, to relieve t is Government from the enormous
expense which the warfare in Cuba had entailed upon it to preserve
neutrality.
The destruction of the Maine is alluded to as evidence of the existing
elements of danger and disorder which justified the intervention of the
United States in terminating the warfare.
On the same day the President of the United States, in another mes-
sage to Congress, transmitted Consular correspondence respecting the
condition of the reconcentrados in Cuba, the state of war in that island
and the prospect of the projected autonomy.*
The foregoing messages as well as many other communications rela-
ting to the warfare in Cuba were referred to the Committee on Foreign
Relations in the Senate, and to the Committee on Foreign Affairs in the
House of Representatives.
On April 13th, L898, the Committee on Foreign Relations of the
United States submitted a report relative to affairs in Cuba.f in which it
have already transmitted to CoDgress the report of the naval court of inquiry on the de-
struction of the battleship Maine in the harbor of Havana during the night of the loth of
February. The destruction of that noble vessel has filled the national heart with inex-
pressible horror. Two hundred and fifty-eight brave sailors and marines and two officers
of our Navy, reposing in the fancied security ot a friendly harbor, have been hurled to
death, grief and want brought to their homes, and sorrow to the nation.
" The naval court of inquiry, which, it is needless to say, commands the unqualified
confidence of the Government, was unanimous in its conclusion that the destruction of the
Maine was caused by an exterior explosion, that of a submarine mine. It did not assume
to place the responsibility. That remains to be fixed.
" In any event the destruction of the Maine by whatever exterior cause, is a patent
and impressive proof of a state of things in Cuba that is intolerable. That condition is
thus shown to be such that the Spanish Government cannot assure safety and security to
a vessel of the American Navy in the harbor of Havana on a mission of peace, and right-
fully there.
" Further referring in this connection to recent diplomatic correspondence, a despatch
from our Minister to Spain, of the 26th ultimo, contained the statement that the Spanish
Minister for Foreign Affairs assured him positively that Spain will do all that the highest
honor and justice require in the matter of the Maine. The reply above referred to of the
31st ultimo also contained au expression of the readiness of Spain to submit to an arbitra-
tion all the differences which can arise in this matter, which is subsequently explained by
the note of the Spanish Minister at Washington of the 10th instant, as follows:
" ' As to the question of fact which springs from the diversity of views between the
reports ot the American and Spanish boards, Spain proposes that the facts be ascertained
by an impartial investigation by experts, whose decision Spain accepts in advance.'
" To this I have made no reply " (H. R„ Document No. 405, 55th Congress, 2d Ses-
sion, April 11th, IS9S).
* Senate Document No. 230, 55th Congress, 2d Session, April 11th, 1808.
| Senate Report No. 885, 55th Congress, 2d Session, April 13th, 1898.
28 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
reviewed the political history of Cuba during the preceding three years
and referred to many acts of atrocity on the part of the Spanish Govern-
ment. That report declares that the destruction of the Maine was (inly
a single incident in the relations of this Government with Spain, and
that "if that calamity had never happened the questions between the
United States and that Government would press for immediate solu-
tion "; that the unfortunate condition of Cuba and the continuance of
the insurrection in that island was due to Spanish misrule; that such
Government had violated the laws of civilized warfare in the conduci of
her military operations, slaughtered prisoners after their surrender, mas-
sacred the sick and wounded insurgent soldiers and their physicians and
nurses in their captured hospitals; it declared the United States "cannot
consent upon any conditions that the depopulated portions of Cuba shall
be re-colonized by Spain any more than she should be allowed to found a
new colony in any other part of this hemisphere, or island thereof.
Either act is regarded by the United States as dangerous to our peace
and safety." The report states that Spain had failed to perform her
treaty obligations and other international duties toward the United
States ; that it was impossible to minutely specify these derelictions, but
that American citizens had been seized and imprisoned without shadow
of right; that the assassination of Ruiz, an American citizen, was the
act of Spanish officials who held him in custody unwarranted by the
treaty rights and that no reparation had been made for such act, although
it had been demanded by the Government: that of fifty million dollars
of property in the island of Cuba belonging to the citizens of the United
States, much had been destroyed by the acts of Spain, and that she
was unable or unwilling to prevent destruction of the remainder; that
claims on file in the Department of State against Spain, for indemnity
for this destroyed property then amouuted to about sixteen million dol-
lars ; that Spanish military officers had levied contributions upon Amer-
ican planters as the price for the preservation of their estates and the
continuance of their agricultural operations. Annexed to the report,
which consists of over 600 pages, are statements of many claims tiled
with the Department of State, and which the records of this Court show
have been presented to it for adjudication.
The report concludes by recommending the resolutions which were
adopted on April 20th. 1898, with the addition of the fourth section dis-
claiming the intention of acquiring the island of Cuba.
It will be noticed that the resolves are based upon a preamble which
refers to the abhorrent conditions which have existed for three years in
the island of Cuba, as well as to the destruction of the Maine. The
Attorney-General's proposition that the destruction of the Mainevi&s the
cause of the war is based exclusively upon the fact that such destruction
was referred to in the preamble of the resolutions of April 20th ; his
proposition, therefore, cannot be sustained as to the destruction of the
Maine causing the war without having the same effect as to every other
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 29
act mentioned in the Committee's Report ; that is, the imprisonment ol
Euiz, the execution of Lopez, and the acts and depredations which were
the basis of the claims filed by American citizens with the State Depart-
ment, and amounting at the time of the report to over sixteen million
dollars, all of which are now before tins Court for adjudication.*
This joint resolution was passed by both Houses of Congress on April
19th; it became a law by approval of the President on April 20. Whatsub-
sequently transpired appears from the President's message transmitted to
Congress on April 25, 1898 {Cong. Record, p. 4248), in which he stated that
he had communicated to the Spanish Minister in "Washington the demand
which it had become the duty of the Executive to address to the Govern-
ment of Spain in obedience to said resolution, and that thereupon the
Minister had asked for his passports and withdrawn from this country;
that the United States Minister at Madrid was in turn notified by the
Spanish Minister for Foreign Affairs that the withdrawal of the Spanish
representative from the United States had terminated diplomatic relations
* The resolutions are as follows: (The preamble and first, second and third reso-
1 hi i. hi - are identical as recommended and as adopted; the fourth resolution was added
after the report was received. 30 U. S. St. at L., p. 738).
[Public Resolution— No. 21, 30 U. S. Slat, at L., p. 738.]
.10INT RESOLUTION for the recognition of the independence of the people of Cuba,
demanding that the Government of Spain relinquish its authority and government in
the island of Cuba, and to withdraw its land and naval forces from Cuba and Cuban
waters, and dire, ting the President of the United States to use the land and naval
forces of the United Stales to carry these resolutions into effect.
Whereas the abhorrent conditions which have existed for more than three years in
the island of Cuba, so near our own borders, have shocked the moral sense of the people
of the United States, have been a disgrace to Chiistian civilization, culminating, as they
have, in the destruction of a United States battleship, with two hundred and sixty-six of
its officers and crew, while on a friendly visit in the harbor of Havana, and cannot longer
be endured, as has been set forth by the President of the United States in his message to
('..tigress of April eleventh, eighteen hundred and ninety-eight, upon which the action of
Congress was invited. Therefore.
Resolved by the Senate and House of Representatives of the United States of America in
Congress assembled, First. That the people of the island of Cuba are, and of right ought to
In , free and independent.
Second. That it is the duty of the United States to demand, and the Government ol
the United States does hereby demand, that the Government of Spain at once relinquish
its authority and government in the island of Cuba and withdraw its land and naval forces
from Cuba and Cuban waters.
Third. That the President of the United States be, and he hereby is, directed and
empowered to use the entire land and naval forces of the United States, and to call into the
actual service of the United States, the militia of the several States, to such extent as
mav be necessary to carry these resolutions into effect.
Fourth. That the United States hereby disclaims any disposition or intention to exer-
cise sovereignty, jurisdiction, or control over said Island except for the pacification
thereof, and asserts its determination, when that is accomplished, to leave the government
and control of the island to its people.
Approved, April 20, 1898.
30 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
between the two countries, and that all official communications between
their respective representatives ceased therewith.*
The President also referred to a note addressed to the United States
Minister at Madrid by the Spanish Minister of Foreign Affairs that the
Government of Spain had treated the reasonable demands of this Gov-
ernment as measures of hostility and had followed that with instant and
complete severance of relations by its actions which, in the usage of
nations, accompanies an existing state of war between sovereign powers:
lie further stated that he had been constrained in exercise of the
power and authority conferred by the resolutions to proclaim a blockade
of a portion of Cuba, and that he recommended the adoption of a joint
resolution declaring that a state of war existed between the United States
of America and the Kingdom of Spain.
On April 25, 1898, Senator Allen introduced a joint resolution!
declaring the existence of a state of war since tin- \btli day of February,
1898, between the United States and Spain, which was committed to the
( 'ommittee on Foreign Relations. After the receipt by the House of Rep-
resentatives of the President's message aforesaid, there was presented from
the Committee on Foreign Affairs of that body an actj declaring that
war exists between the United States and the Kingdom of Spain since the
2 1st day of April, 1898, including said date.
The Congressional Becord shows that there was some question raised
as to whether the title of the act was co-extensive with its terms, and
thereupon the statement was made that the bill had been drawn by the
Attorney-General of the United States.
The act as passed by the House, and immediately transmitted to and
passed by the Senate, declared that war existed and had existed since April
'.'1, 1898, including said day,§ and this date was adopted notwithstanding
the fact that there were then pending in the House of Representatives,
and in the Senate the resolution introduced by Senator Allen, and other
resolutions to the effect that war be declared to exist from the loth day
of February. 1898.
* See also lT. S. Foreign Relations for 189S, pp. 761 el seij.
t S. 11., 158.
\ II. R., 10,086, Cong. Record, 4252.
s Chap. 189. — An Act Declaring that war crisis between (heUni'ed States of America "ml
the Kingdom of Spurn.
Be il enacted by the Senate and House of Representatives of the United Stati s • ■( America
in Congress assembled, First. That war be, and the same is hereby, declared to exist, ami
that war has existed since the twenty. first day of April, Anno Domini eighteen hundred
and ninety eight, including said day, between the United States of America and the King-
dom of Spain.
Second. That the President of the United States be, and he hereby is, directed and
empowered to use the entire land and naval forces of the United States, and to call into the
actual service of the United States the militia of the several States, to such extent as
may be necessary to carry this Act into effect.
Approved, April 25, 1898. (SO I'. S. Stat, at Large, p. 364.)
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 31
The act was prepared by the Attorney-General and passed by both
Houses of Congress, and the care taken to declare that the war existed
from the 21st day of April, including said day, is evidence on the face
of the bill that it was the intention of both of the political departments
of the Government to declare that war did not exist prior to the 21st day
of April, and that the cause of the war was the statement in the message
of the President of April 25 that Spain had refused the reasonable de-
maud of the United .States to withdraw from the island of Cuba and had
treated that demand as a. hostile act, and that Spain herself had taken
the initiative in declaring war not only by the manner in which the de-
mand was received hut by subsequent acts which could only bo considered
as those of war.
The proposition that the destruction of the Maine was the cause of
the war with Spain has been advanced by the Attorney-General regard-
less of the awkward position in which it places the executive and
legislative departments of this Government, as one of the most im-
portant principles of international law, which this nation is bound to
support,
Every department of the Government of the United States is com-
mitted to the settlement of disputes between this and foreign countries
by arbitration instead of war, audit is not possible that this Court should
in its initial decision place itself upon record that the political depart-
ments of this Government violated the principle of international law to
which this country is committed above all others.
The Attorney-General's position, therefore, that the destruction of
the Maine was the cause of the war cannot be sustained without placing
the United States on record that it refused the offer of a foreign nation
to arbitrate a question in dispute between them and to respond to any
award resulting from such arbitration, but that within three weeks after
such offer of arbitration was made they deliberately declared war for the
cause which the other nation had offered to submit to arbitration.
The declaration of war with Spain and the causes which led up to it
are so fresh in the minds of the Court and counsel that it is almost impos-
sible in an argument of this nature not to refer to current history and to
those matters which are necessarily uppermost in our minds when this
subject is discussed, and it therefore came as a surprise to the counsel of
the claimants that at this late date the Executive Department of the
United States, after all of the efforts which it has made during the past
four years to disassociate the war with Spain with the destruction of the
Maine, should come forward and, as a means of avoiding liability for
the claims of its citizens which were sacrificed for the public welfare in
obtaining peace, and assumed by the treaty which terminated the war,
now declare for the first time that the war with Spain was caused by
the destruction of the battleship and was declared notwithstanding the
offer of the Spanish Government to arbitrate the question of liability
therefor.
32 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
EIGHTH.— A treaty of peace does not, under
the principles of international law, neces
sarily obliterate the claims of citizens of either
country against the other, even though such
claims were connected with the causes of the
war terminated by the treaty of peace.
The legal elements of the proposition upon which the Attorney-General
attempts to support his demurrers are based upon the proposition that a
treaty of peace necessarily obliterates all claims of the citizens of one
country against the government of the other which are in any way con-
nected with the causes of the war terminated by the treaty. He declares,
although his citations fail to sustain him, that this is one of the princi-
ples of international law which has been recognized and adopted by civi-
lized nations.
It has already been demonstrated that the destruction of the Maine
was not the cause of the war with Spain, but, even assuming for the
purpose of the argument that such was the case, the Attorney-General's
proposition is not tenable.
In subsequent points it will be shown that even if this principle were
recognized under the rules of international law, its only possible appli-
cation would be as to the relations of the Government of the United States
to the Government of Spain, and it would not, because it could not. in any
manner, affect the relations of the United States with those of its citizen-
whose claims were sacrificed; and that even if the principles of interna-
tional law were correctly stated by the Attorney-General they would have
to give way to the peculiar protection afforded to citizens of the United
States by the Constitution.
The leading authorities on international law, however, do notsupport
the Attorney-General in his fundamental proposition : in order to sus-
tain his position he must demonstrate that a treaty of peace not only ob-
literates claims of the citizens of each country against the government of
the other country, if such claims were in any way connected with the
causes of war, but that it also relieves the governments from indemni-
fying their citizens for the claims which are thus obliterated for the
general welfare of the country.
It is undoubtedly true that any government exercising national and
sovereign functions is competent through its treaty-making power, and
the exercise of the right of eminent domain, to make a treaty with another
government, whether such treaty be of peace or of any other nature,
containing stipulations by which the claims of its citizens are satisfied
ami obliterated as against such other government. It also maybe true
that in the absence of constitutional provisions protecting them, the
citizens' only opportunity to obtain compensation for the claims thus
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 33
sacrificed is through the voluntary act of their own government, as the
right to claim compensation from, as well as to sue. the sovereign, as a
general rule, can only be exercised by the sovereign's own consent.
While, however, it is competent for governments to thus sacrifice the
claims of their citizens, the mere fact of the conclusion of a treaty of
peace does not obliterate such chums without special expressions to that
effect, and this applies equally to claims connected, as well as to those
unconnected, with the causes of the war.
The Attorney-! reneral's proposition amounts to this: Had the destruc-
tion of the Maine I n the only incident marring the friendly relations
between Spain and the United States, and the United States had de-
manded reparation therefor, Spain had refused, war had been declared
with a distinct statement in the declaratory acl itself that it was waged
solely on account of the destruction of the Maine, and a treaty of peace
had subsequently been entered into containing the same relinquishment
as against Spain, and assumption by this Government, as is contained in
the Treaty of Paris, the United States would he under no legal or moral
obligation whatsoever to satisfy its oun citizens for whose sake the war
was undertaken, and who more than any other persons would bo entitled
to indemnity.
11' the Attorney-General correctly states the rule, the greater the loss
to the citizen, the more flagrant and pr tinced the injury, the less op-
portunity there is for him to recover his claim, the justice of which is
necessarily recognized by the resort to war to enforce it.
Had Great Britain refused to arbitrate t he Alabama claims, and had it
been necessary for the United States to resort to warlike methods to
obtain the indemnity demanded therefor, the tact that the war had been
waged to collect those very claims would, under the Attorney-General's
proposition, relieve this Government from all obligation to indemnify
the claimants.
Daniel Webster, while a Senator of the United States, delivered a
speech on the French Spoliation Claims, in which he reduced to a com-
plete absurdity the proposition that a war waged until peace is obtained
obliterates the claims connected with its causes.*
In fact, according to the Attorney- General's proposition, all that
claimants against a foreign government, whose claims are in tiny way
* "The mere fact of war ran never extinguish any claim. If, indeed, claims for indemnity
be the professed ground of war, and peace be afterwards concluded without obtain-
ing any acknowledgment of the right, such a peace may be construed to be a relinquish-
ment of the right on the ground that the question has been put to the arbitration of the
sword, and decided. But if a war be waged to enforce a disputed claim, and it be carried
on till the adverse party admit the claim, and agree to provide for its payment, it would
be strange indeed to hold that the claim itself was extinguished by the very war which
had compelled its express recognition. Now, whatever we may call that state of things
which existed between the United States and frame from 1798 to 1800, it is evident that
neither party contended or supposed that it had Keen such a state of things as had
extinguished individual claims for indemnifications tor illegal seizures and confiscations"
(4 Webster s Works. 163; 2 Wharton's Int. Law Dig., p. H74).
34 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
directly or remotely connected with causes of war, ran expect to receive
on the conclusion of a war waged on their behalf, is to be told that their
wrongs have been avenged; their Hag floats over a few thousand more
square miles of territory than it did before the war; the offending Gov-
ernment has been punished by loss of life and territory, and with the
return of peace, the claims for which they sought indemnity, and which
their own government was bound to assert, on their behalf, have as to
the personal elements thereof, been so completely obliterated, or, as it has
been somewhat poetically expressed in the Attorney-General's brief,
'• passed forever into oblivion,'' that even their own government which has
used their claims to obtain peace by surrendering them, is not bound to
indemnify them in any manner whatever.
The Attorney-General has entirely confused the international relations
of the Governments making the treaty and the rights of the citizens
whose claims are sacrificed, and while the authorities which he cites might
sustain his position, that as between Governments the causes of war pass
into oblivion to such an extent that neither Government can make a de-
mand upon the other Government for the same cause and renew hostili-
ties on that basis, they do not sustain the other element that the citizens
lose their right of indemnity against their own Government.
Chancellor Kent, whom he cites, expressly declares (169) that "the
peace does not affect private rights which had no relation to the war." and
the balance of that learned jurist's opinion em this subject completely sus-
tains the claimant's position. Dana's Wheaton declares that the treaty of
peace does not extinguish claims founded upon debts or injuries sustained
prior to the war.
In taei, Section 538 of the original text of Wheaton's Elements, as it
has been annotated by both Dana and Boyd, declares that " the power of
concluding peace, like that of declaring war, depends upon the municipal
constitution of the State "
And in Section 539, Mr. Wheaton declares: "The power of making
treaties of peace, like that of making other treaties with foreign Slates
is, or may be, limited in its extent by the national Constitution."
Prof. Theodore S. Woolsey says that peace is a return to a slate of
amity, and, in the absence of treaty stipulations, to intercourse on the
old basis, and that the ett'ect of a treaty on all grounds of complaint for
which a war was undertaken is to abandon them, but he qualifies the
statement with the assertion by a practical admission that such is not
the case as to private rights.*
" Such is the case as far as public rights air concerned. Bui private rights, the pros-
ecution of which is interrupted by war, are revived by peace, although nothing may he-
said upon the subject ; for a peace is a return lo a normal state of things, and private rights
depend not so much on concessions, like public ones, as on common views of justice. And
here we include not only claims of private persons, in the two countries, upon one another.
but also claims of individuals on the government of the foreign country, and claims — pri-
vate and not political — of each government upon the other existing before the war"
( Woolsey 's Introduction to the Study of Int. Law, 6th Ed., pp. 263 et s«/.).
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 35
There are but few countries in which the right of the private citizen
to just compensation for his property taken for public use is protected as
thoroughly as it is in the United States by the Constitution : the writers.
therefore, on international law, many of whom are foreigners, have not
considered this point from our standpoint, when they have asserted that
matters connected with causes of war are obliterated by a treaty of peace.
The American authors whose views are cited in the Attorney-General's
brief have all qualified their expressions on this subject with the state-
ment that the effect of a treaty of peace depends, as between the re-
spective Governments and their citizens on their own constitutional
and municipal provisions.
There is no positive assertion in any of the authorities cited by the
Attorney-General that claims of private citizens against the other
Government pass into oblivion on the execution of a treaty of peace.
Halleck, who goes as far as any one, says a treaty of peace does not
extinguish claims unconnected with the causes o) the war. Some of the
authorities do not discuss the questi f the obliteration of such claims.
but simply confine the expression of their views to a positive assertion
that claims unconnected with the war survive a treaty of peace, and are
unaffected thereby.
Phillimore (vol. 3, 3d edition, p. 807) says that if a war should happen
tohavebeeu waged on account of an injury done to a private person, then
the payment of his damages should be expressed ; for it requires but a
slight conjecture to found the remission of a penalty. But this language
evidently shows that the remission has got to be in some way found from
the terms of the treaty; it simply says thai the presumption might be in
favor of the remission on the general principle that claims ought to be re-
mitted so as not to provoke a renewal of hostilities.
There is nothing, however, in these, or in any other statements, to
sustain the Attorney-General or this Court in declaring that such ex-
pressions can be construed as admissions that claims that are connected
with the war, are obliterated ; such a proposition is not necessarily the
converse of, or deducible from, tin.' other.
In the case of the Molly, cited on the Attorney-General's brief (1 Dod-
son's Adm. Rep , 394), Sir William Scott (Lord Stowell) did declare that
" when a treaty of peace has been concluded the revival of any griev-
ances arising before the war comes with a very ill grace and is bv no means
to be encouraged. Treaties of peace are intended to bury in oblivion all
complaints, and if grievances are not brought forward at the time when
peace is concluded it must be presumed that it is not intended to bring
them foiward at any future time. "
This, like Phillimore's assertion, carries out the views expressed by
many writers on international law, especially those of foreign countries,
who do not consider the effect of the constitutional provisions of this
country, that a treaty of peace ought, from a moral standpoint, and for
the sake of subsequent friendly relations between the two countries, to
30 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
emphatically dispose of all claims which were in any way connected with
the war. in order to prevent their being revived, and possibly becoming the
basis of bitter diplomatic controversy, and even of renewed hostilities.
The facl that these authors have urged the insertion of articles in
treaties of peace positively releasing all claims connected with the
causes of the war, clearly indicates that the proposition asserted by the
Attorney-General is not a principle of international law which has In-
come so universally accepted that if could in any way he binding upon
citizens of the United States when property rights are at stake.
NINTH. When the claims of citizens of
either country against the other are obliter-
ated by a treaty of peace, such obliteration is
the result of the exercise through the treaty-
making- power of the right of eminent domain,
sacrificing private property for public wel-
fare, and under the principles of international
law the government exercising such right is
morally bound to indemnify its citizens for
losses thus sustained.
From the earliest time until the present, writers on international law
have asserted the principle that indemnity to citizens must go hand in
hand witli the right of their government to confiscate and sacrifice their
claims against another government for the purpose of concluding a treaty
of peace: and I his applies t o all claims, including those for which the
war was waged.
The principle that private property cannot be taken for public use
without just compensation is one of the fundamental principles upon
which not only this, but many other governments are based. It far ante-
dates the Constitution: it rests upon such a solid foundation that the
framers of the Constitution did not consider it necessary to incorporate
it in the instrument as originally prepared. In fact, the Bill of Rights, as
the first ten amendments of the Constitution are called, was only incor-
porated in the Constitution in order to satisfy the demands of some of
i he state Conventions which ratified it. Many people believed that the
enumeration of the various rights specified in those amendments might
he prejudicial to those rights iii their broadest conception, and many
writers on constitutional law have considered that the adoption of the
amendments, so far as affording protection to the rights and liberties of
American citizens therein enumerated, was unnecessary.* Be that as it
may, the principle that private rights cannol in any way he sacrificed Eor
* See I Story's Commentaries, js 300-805, pages '^17 et seq.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASKS. 6 1
the public welfare is one of the foundation stones upon which this Gov-
ernment is built.
In Warevs. Hylton* in which five of the judges delivered opinions,
Mr. Justice Chase, in the leading opinion of the Court, held that
the Congress under the Confederation had the power to sacrifice
rights and interests of private citizens in order to secure the safety
or prosperity of the public. As the treaty of peace with ({rent
Britain of 1 ? s.; was under consideration, he could not base his views
as to the necessity of indemnifying citizens whose claims were sacri-
ficed upon the constitutional provision, bill he based it upon the
fundamental principles of justice. In the course of his opinion
he says (p. 245) thai the immutable principles of justice, the public
faith of the states that confiscated and received debts pledged to the
debtors and the rights of the debtors violated by the treaty, "all com-
bine to prove that ample compensation onghi to he made to all flic
debtors who have been injured by the treaty lor the benefit of the pub-
lic." To this he added : " The principle is recognized by the Constitu-
tion, which declares -that private property shall not be taken for public
use without just compensation." Ee cites Vattel (Lib. I, c. 20) in sup-
port of the general principle, and adds thai il is evident that the debtors
"ought to be indemnified, and it is not supposed that those whose duty
it may be io make the compensation will permit the rights of our citi-
zens to be sacrificed to a public object without the fullest indemnity."
The fact that the italicised words are so in the original shows what -tress
the Court laid upon the claims of citizens' being property rights, and
confiscation of them to procure a treaty of peace being a public use.f
* I'. S. Supreme Court, 1796, 3 Dallas, 199.
\ Extract from Grotius on War and Peace, Bk. III.. Chap. XX.. n.
XVI. " Yet those Debts, which « ere due to private Persons at the beginning of the War,
are not to be accounted forgiven, for these are not acquired by the Right of War, but only
forbidden to be demanded in time of War; therefore the Impediment being removed, i. c,
the War ended, they retain their full Force. Bui tho' it ought not to be easily presumed,
that what was a Man's Righl before the War i- taken from him, for this Cause chiefly (as
Cicero well observes), Civil Societies were first constituted, that every one might keep his
own, vet this must be understood of that Right, which is derived from the Inequality of
Things.
XVIII.— There is not the same Reason that private Men should be thought to
remit the Right ot demanding Punishment, because this may without War be judicially
required , but since this Right is not ours in the same manner, as that, which arise- from
Inequality, and besides Punishments having always something odious: The slightest Con-
jectures that may he drawn from the Terms of the Treaty, are sufficient to found a just
Presumption, that this also is passed by.
XIX. — But whereas we have said, that the Right, which we had before the War,
should not easily be thought to be remitted, this indeed holds very true in the Right of
private Men. But as to the Right of Kings and Nations, a Remission may be more easily
presumed, if the Terms of the Treaty, or probable Conjectures drawn from them, lead us
to that Interpretation ; but especially if the Right in question were not clear, but in dis-
pute. For it is humane to believe that those who make Peace intend sincerely to stifle
the Seeds of War (London edition, 1737).''
38 BEFORE THE SPANISII TREATY CLAIMS COMMISSION.
TENTH. The principle of international law,
as stated in the foregoing point, as to the
moral obligation of Governments to indemnify
their citizens for claims against a foreign
Government, sacrificed for the purpose of
making peace, has been incorporated, as an
inalienable right of citizens of the United
States, in the Constitution (Art. V. of Amend-
ments), and citizens of the United States
who ;e claims are thus sacrificed for the public
welfare are entitled to just compensation and
may assert their claim therefor in any Court
to which Congress g*ives jurisdiction, and this
rule applies to claims of every nature,
even though they ■were the cause of ■war ter-
minated by a treaty of peace.
If it (-in lie demonstrated that ;i claim of a citizen of the United
States against a foreign Government is a property right, ami if the re-
mission or the obliteration of the same is a taking of private property for
the public welfare, it necessarily follows that the citizen whose property
is sacrificed must be awarded just compensation. In this respect it
matters not whether the right of eminent domain on the part of the Gov-
ernment is exercised for the purpose of securing the resumption of peace
after hostilities commenced, or to prevent an outbreak of hostilities, or
to maintain a continuance of peaceful relations before hostilities have
actually commenced.
In support of their claims the petitioners contend:
((/.) Claims of citizens of the 1'niteil Slates against foreign powers
are property rights.
(/;.) The obliteration of claims of its citizens against a foreign
Government by treaty between the United States and that
Government is an exercise of the right of eminent domain
and a taking of private property for public use within the
meaning of Article Y. of the Constitution of the United
States.
(c.) The principle of just compensation for taking private prop-
erty for public use is applicable to claims sacrificed to obtain
a treaty of peace as well as to those in which the treaties are
concluded during a time of peace,
AftGtTMENT OF CHAS. H. BDTLER IN MAINE CASES. 39
(a.) Claims of citizens of t he United Slates against foreign powers
are property rights.
It seems almost unnecessary to cite any eases in support of this
proposition ; a few references, however, will be given.
Mr. Justice Story held in 1828* that " the right of indemnity for an
unjust capture, whether against the captors or the sovereign, whether rem-
ediable in his own courts or by his own extraordinary interposition and
grants upon private petition or upon public negotiation is a right attached
to the property itself and passes by cession to the use of the ultimate suf-
ferer." In the case cited the Court decided that the claim of a citizen of
the United States against Spam lor an unjust capture of his vessel was
not only a property right, but was one of such a tangible nature that it.
passed under a general assignment of an insolvent debtor to his assignee,
and that it so passed even before the United States had negotiated with
Spain a treaty indemnifying it for the losses sustained by its citizens for
depredations upon American commerce.
This decision rendered, as it was, by one of the ablest jurists who
ever sat upon the bench of the highest Court in this or in any other
country, has been followed so repeatedly that it has become an elementary
principle of the law as it is administered in the constitutional and
statutory courts of this country. f
(A.) Tlie obliteration ofclaimsof its citizens against a foreign govern-
ment 01/ treaty between the United States and such government is mi exer-
cise of theright of eminent domain and n taking of private property
for public use within the meaning of Article V. of the Constitution of
the Untied States.
It would be impossible to give a complete list of all the treaties between
the United States and foreign powers in which claims of citizens have
been surrendered. Most of them have provided for some method of as-
certaining the amounts of the claims surrendered, and all of that elass
will be found in Moore's History of International Arbitration, together
with an account of the proceedings based thereon. The frequent exercise
of this right is evidenced by the fact that, up to L896, the United Slates
had participated in fifty-two arbitrations for the settlement of claims.
and in many cases the claims of citizens of this country were surrendered
* Comegys vs. Vasse, U. S. Supreme Court, IS2S, 1 Pet., 193, p. 215.
f Some of the many cases in which it has been followed are:
Williams vs. Heard, U. S. Supreme Ct,, ISfll. 149 U. S., 629, Lamab, J.
Phelps vs. McDonald, U. S. Supreme Ct., 1878, 99 U. S., 298, Swaynk, ,/.
Clark vs. Clark, U. S. Supreme Ct., 1854, 17 Howard, 315, Catron, ./.
Leonard vs. Nye, Mas-s. Supreme Ct., 1878, 128 Ma,-s., 455, Gray, Ch, ■/.
Delafeld vs. Cotden, N. Y. Ct. Chan., 1828, 1 Paige, 139, Walworth, Chan.
Lewis vs. Bell, U. S. Supreme Ct., 1854, 17 Howard, filfi, Grier, ./,
411 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
and barred as against the foreign government, and assumed by the
United States.*
(c ) The principle of rendering just compensation for taking private
property for public vse is applicable to /■/aims sacrificed to obtain a treaty
of peace, as well as to those in which the treaties are concluded during a
time of peace.
Fortunately, the United States has had occasion to conclude very few
treaties of peace. We have already seen thai the Supreme Courtconsid-
ered that the principle of jusl compensation for claims of citizens sacri-
ficed applied to the treaty of peace negotiated by the Confederation ; the
United States indemnified its citizens for claims sacrificed in terminating
the strained relations between this couutry and Prance in l&OOand 1803,
and also those sacrificed in concluding the treaty o I peace between this
country and Mexico after the war of L84C.
On numerous occasions, however, treaties have been concluded by the
United States with foreign powers, which were practically treaties of peace
because they were concluded for the purpose of avoiding the actual hos-
tilities which would undoubtedly have ensued had such treaty not hern
concluded. The treaty of L819 with Spain, by which Florida was ceded
to this country, was the only means by which a war was averted between
this country and Spain on account of the depredations committed on our
commerce by that country, and the menace which Florida was at that
time to the peace ol this country. Claims of our citizens were extin-
guished as against Spain, t he United States assumed them and settled
them. In 1S42 the relations between this country and Great Britain be-
came so acute that troops of both countries were mobilized on the border
line. By the diplomatic ability of Daniel Webster and Lord Ashburton,
the treaty known by their names was consummated, and the American
owners of property which passed from under the sovereignty of the United
States to that of Great Britain, were compensated for the losses sustained
by them.
ELEVENTH Treaties of peace stand on the
same footing as all other treaties made by the
United States.
Counsel for the Governmenf are evidently endeavoring to create the
impression that there is some subtle difference between the effect of a
treaty of peace, and of ol her < lonventions bel ween the United States and
a foreigu power extinguishing the claims of its citizens. Asa matter ol
I ,.,„,,.,, pa I*..-., I v. Supreme Ct., 1828, 1 Peters, 193, 216, Story, J.
PMpsva. McD M, I S Supreme Ct., 1878,99 U. S., 298, 308, Swayne, J.
Williams is Heard, U. S. Supreme Ct., 1891, 140 U. S., 529, Lahab, J.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 41
fact, however, there is no distinction whatever between treaties of peace
and other treaties. All treaties are concluded and ratified under the
treaty-making power of the United States, and the effect so far as
citizens of this country are concerned is necessarily the same.
An effort was mud'' in the Constitutional Convention to discriminate
between treaties of peace and other treaties, and Mr. Madison, . on
Friday, February 7th, 1 787, moved to insert the words " except treaties
of peace " after the ratification clause of the treaty so as allow them to be
made with less difficulty than other treaties. His motion was agreed to
at the outset, but in the course of the discussion Mr. Gerry declared
that in treaties of peace " a greater rather than a less proportion of votes
was necessary than in other treaties. In treaties of peace the dearest
interests will be at stake, as the fisheries, territories, &c. In treaties of
peace also there is more danger to the extremities of the continent of
being sacrificed than on any other occasion." On that day Mi'. Madison's
motion was adopted, but on the following day. Mr. King moved to strike
out the exception as to treaties of pence and the added clause to that
effect was struck out after a debate in which Mi-. Wilson, of Pennsyl-
vania. Mr. Gouverneur Morris, Mi'. Gerry, Mr. Sherman and Mr.
Madison participated.*
Chancellor Kent, in his Commentaries. says:f
" The department of the Government which is entrusted by the Con-
stitution with the treaty-making power is competent to bind the national
faith in its discretion, for the power to make treaties of peace must be
co-extensive with all the exigencies of the nation. * * All
treaties made by that power become of absolute efficacy; they are the
supreme law of the land." He cites the case of the Peggy, 1 ('ranch,
103, in which Chief Justice Marshall declared that individual rights
and vested rights of citizens might be sacrificed by treaty for national
purposes, and he also cites Ware v. Hylton {'■> Dallas. 199, 245) as au-
thority that private rights might be sacrificed to secure public safety.
He, however, liases the entire right to make treaties of peace ami even
to alienate territory for that purpose on the constitutional treaty-mak-
ing power of the United States, and at once accompanies it with the
statement that ••the Government" would be hound to make compensa-
tion and indemnity to the individuals whose rights had thus been sur-
rendered. The views of .Mr. Wheatou, cited in a previous note,
are that "The power of concluding peace, like that of declaring war,
depends upon the municipal constitution of the State."' He also says :J
'• The power of making treaties of peace, like that of making other
treaties with foreign States, is, or may be, limited in extent by the national
Constitution. We have already seen that a general authority to make
* Madison papers, vol. 3, pp. 151S-1528.
filth Ed., pp. 200 et setj.
X 508 Boyd's 3d English Edition, p. 623.
42 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
treaties of peace necessarily implies a power to stipulate the conditions
of peace. * * * The duty of making compensation to individuals whose
private property is thus sacrificed to the general welfare is inculcated by
jurists as correlative of the sovereign right of alienating the things which
are included in the eminent domain." llalleek, quoting both Wheaton
and Kent, says that the treaty-making power is bound by the fundamental
law of the constitution of the State, and the only exception made by
llalleek. Wheaton or Kent as to compensation to individuals is when a
State is obliged for purposes of peace to cede territory they are not
necessarily obliged to indemnifythe persons whose territory is so ceded.
It can easily be seen that this is not the same as a sacrifice of property,
as it is simply a transfer of sovereignty, the ownership of the property
not being affected, whereas in the ease of claims the property right itself
is not simply relegated for adjudication to courts of another country, but
is absolutely destroyed. The United States, however, indemnified the
owners of property which passed from under its sovereignty to that of
Great Britain by the Webster-Ashhurton treaty of 1842.
TWELFTH.— The United States relinquished
all claims for indemnity, national and indi
vidual, of every kind, of its citizens or sub
jects, -which arose since the beginning- of the
late insurrection in Cuba, and this includes all
claims of every nature regardless of whether
they were connected with the war or not.
The effort made in this proceeding to avoid respcnsibility for one
class of claims is unworthy of the Government of the United States.
The claims of its citizens against. Spain, which the United States
assumed by Article VII. of the Treaty and agreed to settle and adjudicate,
included every claim which arose since the beginning of the insurrection
in Cuba, which date has been generally tixed as February 25, 1895, and
it is not now within the power of the United States to say that it did not
agree to adjudicate and settle any claim which arose since that date.
The relinquishment clause, so far as these claimants are concerned, is
even stronger than though it had been general, for it includes all claims
except those which are before a specified date, and the exception in the
article of claims which arose prior to February, L895, is evidence on its
face that certain claims were to be excluded, and therefore, under the prin-
ciple of expressio unius exclusio alterius, there can be no exceptions to
the assumption other than those, which were specified in the article, and
no exception can be presumed on any general principle whatsoever.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 43
There can be no doubt that in making the treaty of peace the United
States could have demanded an indemnity for the Mann- both for national
and for individual loss, and even if (heir were a general rule of inter-
national law, as asserted by the Attorney-General, that where nothing is
specified in the treaty, indemnity claims connected with the causes of
the war pass into oblivion, there is no rule that prevents the victorious
power from demanding an indemnity for those causes. And if the
United States Government could have demanded on behalf of its citizens
tin indemnity for the Maine, but instead of .so doing, it relinquished all
claims, national and individual, the presumption must be that then- was
a relinquishment of the claim-- lor the sufferersof the Maine disaster for
which the American Commissioners could have demanded indemnity
had they seen fit, and the agreement, in the second paragraph of Article
VII. between the United.States and its citizens to adjudicate and settle
the claims released is sufficientlj broad to include each and every claim
of all classes which could possibly have been demanded by the United
Stab's from Spain at that time.
In the case of Aspimvall vs. Venezuela, the question of jurisdiction
was raised iii regard to the character of the claims, and the Commission
assumed jurisdiction on tin- ground that where all the claims were referred
tn a Commission by a Convention, limited only by a time qualification, no
question of the- character of claims could be raised so as to prevent the
Commission from taking jurisdiction.*
THIRTEENTH.— Treaties by which rights of
citizens are affected must be construed liber-
ally for the individuals.
On these demurrers the Attorney-General practically admits for
the purpose of the argument, if. in fact, he does not actually assert, that
the petitioners at one lime had claims, but that they were extinguished
by the treat v of peace, as against Spain, in the same manner that other
claims were released, without, however, being similarly assumed by the
rjni ted States; he seeks to find the extinguishment by the forced con-
struction of a clause in which words have to be interpolated in order to
sustain bis position.
* In this case, which has already been referred to at length under another point (see
lip. 14 el xrq , ante), the i tommission considered carefully the construction of treaties and their
effect upon rights of individuals, and in regard therein, after citing Mr. Justice Story in
,s/<au/:x vs. Dupout (3 Pet., 249); ffauenstein vs. I.ynham (100 TJ. S., 483), and Grotius
(De Jure B'lli ac Pacis, Book 2, chap. 16), decided that the most liberal exposition and
Construction of u treaty was to be adopted (Moore's History of Arbitration, pp. 3624-
3626).
44 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
The familiar rule of interpretation of treaties originally laid down by
Vattel, which has been cited on other briefs in these cases, and
which is now an elementary principle of law, is that " It is not allowable
to interpret that which has no need of interpretation."
The expression, "all claims of every nature, except those arising
prior to February 1*. 1895," cannot lie twisted into the expression "all
claims which might have passed into oblivion by a treaty of peace had
they not been expressly saved therefrom l>\ the terms of the treaty."
In the construction of treaties which operate directly upon individual
rights, the individual is always protected, and this is especially true
where the treaty contains provisions confiscating the individual's prop-
erty and indemnifying liim therefor.
All penal, confiscatory and tariff statutes are construed strictly
against the Government and all remedial statutes are construed liberally
for the person whose rights are affected. These are elementary principles
of law. which apply not only to treaty rights lmt to all rights of citizens
which are affected by governmental action.*
In construing Article VII. of the Treaty of Peace, every presumption
must he in favor of the American citizen whose claims were sacrificed for
the purpose of terminating a war, which was causing, outside and be-
vond the horrors of war and loss of life, expenditures which exceeded
every three days the total amount asked from this Commission by those
who suffered from the destruction of the Maine, and this Court will not
hold that when the Commissioners of the United States were in a po-
sition to demand indemnity for the ship and individual, and they waived
all claims of every kind, that any presumption exists that they expressly
excepted from such demand indemnity for these sufferers, who, more
than any others, were entitled thereto.
The Attorney-General now asks the Court to say that that cession
was for expenses of the war and indemnity to American citizens, except
those which had in any way occasioned the war. that is, that every claim
of the United States, national and individual, was covered by this re-
linquishment, except the particular claims now under discussion.
The records, however, of the Commission indicate that claims of every
nature, including the expenses of the war, were under consideration by
the Commissioners in Paris. On November 28,1898, Mr. Moore cabled
to Mr. Hay that "Spain offered to relinquish her sovereignty over Cuba
and cedes to the United States the Philippines, Porto Rico and Guam as
compensation for the expenses of the war ami as indemnity to American
citizens for injuries suffered since the beginning of the last Cuban insur-
rection." This was directly in line with Secretary Pay's letter to the
Due d'Almodovar del Rio, of duly 30, 1898, preliminary to the peace
negotiations, culminating in the protocol of August 12, 1898, and in
which he declared that the President was so desirous of exhibiting signal
* Powers vs. Barney, o Blatchf.. 202; U. S. vs. UUmau, Fed. Cat. No. 16, 5','H; Hart-
ran/tvs. Wiegman, 121 f. S., 609; U, S re. Wiggletworth, 2 Story, 369.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 45
generosity that he would not make any pecuniary demands for indemnity
for the war, but that lie would have to demand the cession of Porto Rico,
therefor, and for claims of citizens, for injuries to persons and property
during the war.*
The Attorney-* teneral now asks this Court to decide that the "signal
generosity " of President McKinley was simply, so far as these claimants
are concerned, a ruthless sacrifice of the claims of American citizens,
not only in defiance of public sentiment, but also of Constitutional
protection. Surely this Court will not so flagrantly misinterpret the
signal generosity of that man whose every action was not only indicative
of the highest regard for national welfare, but also of a deep and tender
regard for the individual welfare of American citizens, and especially of
our soldiers and sailors (for was he not one of them himself) and of their
widows and orphans. Let the Attorney-General road, if he will, the words
of our martyred President, about the destruction of what he called our
" noble vessel" while in the Harbor of Havana "on a mission of peace
and rightfully there," and of the -'sorrow to the nation and grief to the
home," and then let him— if he dare— repeal his assertion to this Court
that William McKinley. in announcing the terms of peace to a van-
quished foe. when lie was in a position to dictate termswhich would pro-
tect the just claims of American citizens, cither forgot to include, or
expressly excluded, the claims of the sailors and the widows and orphans
who had so terribly suffered in the destruction of our noble warship.
FOURTEENTH.— The claims extinguished
by the treaty of 1898, and described as "all
claims for indemnity, National or individual,
of every kind," necessarily included the
claims of these petitioners.
The intention of the treaty of Paris to include all claims whether
they were connected with the cause of the war or not is evidenced by the
use of the descriptive words "all claims for indemnity. National or
individual, of every kind." It is impossible to conceive of any broader
description and there can lie no doubt that the claims are " individual
claims for indemnity" and were included in the relinquishment.
* •• The President, desirous of exhibiting signal generosity, will not, now put forth any
demand for pecuniary indemnity. Nevertheless, he cannot be insensible to the losses
and expenses of the United States incident to the war, or to the claims of our citizens for
injuries to their persons and property during the late insurrection in Cuba. He must
therefore, require the cession to the United States, and the evacuation by Spain, of the
Islands of Porto Rico and other islands now under the sovereignty of Spain in the West
Indies, aud also the cession of an island in the Ladrones to be selected by the United
States" (U. S. For. Rel„ 1898, p. 821).
46 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
The distinction between "National" and " individual " claims against
foreign governments has been discussed on many occasions and there can
be no doubt that " National " claims for indemnity are those for which
the United Stales can colled and retain indemnity for losses sustainedhj
the government in property and expense, or u hen pecuniary damages are
demanded, for insult to the flag; while "individual" claims are those
which citizens of this country have against a foreign government for
loss and damages actually sustained and for which a foreign government
is responsible.
Some confusion has at times arisen from the fact that claims of citizens
of any country cannot he enforced against a foreign government except
through the Government of the injured party, and when a government
takes up and presses such claims ol its citizens it makes their individual
grievances a National matter.
In such sense the claim of I he individual may become the hasis of a
national demand, but in no sense does the claim ever lose its character of
being the persona] or individual property right of the claimant.
In all cases in which injur} to public vesselsis involved, national and
individual claims arise; both are wholly under governmental control
as against the foreign country, but as to the national claim, the govern-
ment can release the claim for whatever amount it is willing to accept,
while as to the individual claims, it must compensate those whose prop-
erty rights it has sacrificed tor the public good.
This subject has already been treated at length under another point
and it will only be briefly referred to again.*
The fact is the words " national " and " individual " were used in
the treat) in tic same way as the words "of every kind," so that Spain
should be released from every possible claim which could be presented by
the United States, either for itself or for its citizens. The winds
national anil individual arc not used in the adjudication clause; by that
the United State.-, simply agreed to adjudicate and settle the claims of its
citizens against Spain which were relinquished. If any citizen was
prejudiced by the relinquishment of a claim he is protected whether his
claim is one in which no other person is interested, or whether other
persons or the Government of the United States is also interested in it.
Counsel for the Government have dwelt at great length on the distinc-
tion between national and individual claims. The point is not involved
in the jurisdiction of this Court. Every claim of every citizen whether
it had to be presented through the Government or not is included in the
adjudical ion clause of Article VI l.|
* See pp. lit, '22. .int..
I The following extract from the opinion of Davis, ,/., in Gray VB. United States, one
ol the leading French Spoliation cases decided by the Court of Claims in 1SSG ('21 Ct. of
Clms., 340), throws a great deal of light on the terms National ami individual when ap-
plied to claims against foreign governments. On pp. 891-S, Judge Davis -ays:
" The wool - National ' has been largely used in argument in allusion to the different
kinds of claims at different, periods brought into the discussion, and is a convenient word
ARGUMENT OF CHAS. H. BUTLER IN" MAINE CASES. 47
One test which is frequently although nol always applied to ascertain
whether claims are individual or national is the disposition of the indem-
nity received. Any money received by the United States for indemnity
for a national claim must of course eventuallj find its way into the
treasury of the United States, whence il can only be withdrawn under
some Congressional authority. On the other hand indemnities for
individual claims are always paid to the United States, but I hey are as
a general rule received by the Executive Departmcnl of the Government,
and paid over by it directly to the parties entitled thereto. This was the
method adopted in regard to the Virt/iniu.i indemnity paid by Spain,
the Huesken indemnity paid by Japan, the Baltimore indemnity paid
by Chile. Many other instances might be cited, but the members of the
Court are too familiar with this practice of the Government to render
any further citations necessary.
It sometimes happens, however, that when both National and indi-
vidual claims are included in one sum, the amount is covered into the
if clearly understood in the connection in which it is used. All claims arc ' National' in
the sense of the jnx gentium, for do Nation deals as to questions of tort with an alien indi-
vidual ; the rights of that individual are against Ins Government, and not until that Gov-
ernment has undertaken to urge his claim— not. until that Government has approved it
as at least primafacie valid — does it becomes matter of international contention; then,
by adoption, it is the claim of the Nation, and as such only is it regarded by the other
country. The name of the individual claimant may be used as a convenient designation
of the particular discussion, but as between the nations it N never his individual claim,
but the claim of his Government founded upon injury to it- citizen. Nation- negotiate
and settle with nations; individuals have relations only with their own Governments.
Other claims, sometimes the subject of argument, res' upon injury to the State as a whole ;
of these an apt illustration is found in the so-called ' indirect ' claims against Great
Britain, disposed of in the arbitration of 1872, and in the claims advanced by France for
injury caused by tion compliance with the treaties of 177S.
"Thus, while all claims urged by one nation upon another are. technically speaking,
•national,' it. is convenient to use colloquially the words 'national' and 'individual,' as
distinguishing claims founded upon injury to the whole people from those founded upon
injury to particular citizens. Using the words in this sense, it appears that, in the nego
tiations prior to the treaty of 1800, and in effect in the instrument itself, national claims
were advanced by France against individual claims advanced by the United States.
France urged that she had been wronged as a nation: we urged that our citizens' rights
had been invaded. If ' national ' claim- bad been used against ' national ' claims, and the
one class had been set oil' against the other in the compromise, of course the agreement,
would have been final in every way. as the surrender and the consideration therefor
would have been national, and no rights betwi en the individual and his own Government
could have complicated the situation, lint in the negotiation of 1800 we used ' individ-
ual' claims against ' Dational ' claims, ami the set oil was of French national claims
against American individual claims. That, any Government has the right to do this, as it
has the r'ght to refuse war in protection of a wronged citizen, or to take other action,
which, at the expense of the individual, is most beneficial to the whole people, is too clear
for discussion. Nevertheless, the citizen whose property is tints sacrificed for the safety
and welfare of his country has his claim against that country; he has a right, to compensa-
tion, which exists even if no remedy in the courts or elsewhere be given him. A right
often exists where there is no remedy, and a most frequent illustration of this is found in
the relation of the subject to his Sovereign, the citizen to his Government.
48 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
treasury and an Act of Congress passed directing the amounts to be paid
to individuals to be paid out of the treasury.
Had the United States demanded and collected indemnity from Spain
for the Miliar, undoubtedly a lump sum would have finally been agreed
upon and pa;d for all National and individual claims; the United States
would have divided the amount received into two parts, one for the
value of the vessel and the other for the individual sufferers, which
would in its turn have been distributed amongst those entitled thereto
either by Act of Congress or by some other method determined by Con-
gress. The treaty settling the matter, however, might have provided for
the payment to the United States of one sum for the loss of the ship and
another for the sufferers, as well a method for the distribution of the
latter as was done in the cases of the Virginius and the Baltimore. In
any event the individual claims would have been paid, although the
entire amount would have been paid to the United States.
A notable instance in which national and individual claims arose was
that of the Wyoming* affair, for which the United States received a
large indemnity from Japan; after this fund had been held as special
trust for many years, it was covered into the Treasury; the amount of
the award which represented punitive damages for insult to the flag was
given back to Japan: indemnity was retained, however, for all expenses
of the Government and for each sailor and marine on the vessel attacked,
and all payments were made from the Treasury by Act of Congress, f
In the Chile-Baltimore affair the United States could have demanded
punitive damages for the national insult, but true to the doctrine an-
nounced in the Wyoming matter]; it made no pecuniary demand therefor,
except a suitable apology; but Chile was obliged to pay to the United States
for the families of the murdered men who wore the uniform of the United
States an indemnity ''proportionate," as Secretary Foster expressed it,
"to the gravity of the offense. "§
In the Virginius affair of 1871, the National element of the claim
against Spain and the right of the individual sufferers to indemnity was
kept distinct ; the former was eventually waived by the United States,
but Spain was obliged to pay #S0,000 to the United States for relief of
the families of the sufferers on board of that vessel. ||
In the course of the many legislative debates, reports of committees
and the judicial decisions on the French Spoliation claims, the distinction
between the national and individual claims was frequently alluded to.
The only report which will be referred to at length is what may
* See special sub-heading to Sixteenth. Point, potl.
f Act of February 22, 1883, 22 Stat, at L., p. 42.
\ Sen. Doc. 231, 66th Cong., 2d Sess., Part I. p.
§ U. S. For. Ret., 1892. under Chile, and see case referred to at length under special
sub-head to Sixteenth Point, p. 62, ]>ost.
fl U. S. For. Rel„ 1875, pp. 1250-1251.
ARGUMENT OF CHAS. II. BUTLEK IN MAINE CASES. 49
well be called the famous report on these claims of Charles Sunnier,* in
which he so ably urged the payment of debts which he declared were
justly due to American citizens, and which had been sacrificed by the
Government fur the welfare of the nation. It was in the course of that
report that he quoted the earnest wish of Governeur Morris, "that
all our treaties, however onerous, may be strictly fulfilled according to
their true intent and meaning," which he says was followed in language
foreign to the phrases of diplomacy, by picturing the honest nation as
that which, like the honest man,
" Hath to its plighted faith, and vow forever stood;
And though it promised to it- loss, yet makes that promise g I."
Part IV. of this Report is devoted to a careful analysis of claims of
this nature and distinction between them and national claims. On
page 300 he shows that when claims of this nature are taken by the
Governmeni in making a treaty the provisions of Article V. of Amend-
ments that private property cannot hi' taken for public use without
compensation are clearly applicable thereto.
This report, as it was adopted and twice readopted, stands as the clear
cut expressions of that Committee of the Senate, which has always In en
composed of the most eminent authorities on international and constitu-
tional law in that body; it asserts the moral and legal obligations of the
( rovernment of the United States to pay its obligations to its own citizens
when assumed by a treaty with a foreign Government, and it was adopted
as the basis of the legal decisions rendered in the French Spoliation cases. f
" Senate Document 231, 5 Uh Congress, 2d Session. No. 41. Parti. The report
commences at p. 274. It was adopted April t, 18H4, and was readnpled March 2. lsr,7
(p. 378), and readopted January 17, 1870 (p. 383).
f The leading French Spoliation cases an- as follows :
Holbrook vs. United States, U. S. Ct. of Claims, 1884; 21 Ct. Claims, 434 ,
Davis, ,1.
Gushing vs. United States, I . S, Ct. of Claims, 1886; 22 Ct. Claims, 1,
Davis. ./.
Gray vs. United States, U. S. Ct. of Claims. 1886; 21 Ct. Claim-. 340,
Davis, J.
Hooper vs. United States, U. S. Ct. of Claims. 1887; 22 Ct. Claims. 408,
Davis, ./.
The Brig William, I . S. Ct. of Claims, ISSs ; 23 Ct. Claim-. 201, Scofield,
./. Also reported under the names of Haskins, Adams, Blagge vs.
United States.
rJhe Ship Bel*,-,/, U. S. Ct. of Claims, ISSS ; 23 Ct. Claims, 277, Norr, J.
The Ship Jam , U, S. Ct. of Claims, 1889; 24 Ct. Claims, 74, Nott, J.
The Leghorn Seizures, V. Si. Ct. of Claims. 1892; 27 Ct. Claims, 224. Nott, J.
The Brig Venus, TJ. S. Ct. of Claims, 1892; 27 Ct. claims, 116, Nott, J.
Also reported under Colt vs. United States.
The Shi/, Tom. V. S. Ct. of Claims, 1 893 ; 29 Ct. Claims, OR, Nott. J.
The Ship Ganges, V. S. Ct. of Claims, 189H; SI Ct. Claims, 175, Davis, J.
The Ship Star, I . S Ct. ..I' Claims, 1900; 38 Ct. claims, 387, Wei.don. J.
The Schooner Henry and Gustams, U. S. Ct. of < laims, 1900; 35 Ct. Claims,
393, Welhon, /.
50 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
FIFTEENTH.— A moral duty rested upon
the Government of the United States to pre-
sent these claims to Spain, and it could not re-
lease them without assuming them.
A government may or may not present the claims of its citizens to a
foreign government, bnt it for politic or Governmental reasons, it deter-
mines not to present claims that are proper, it is bound to assume the
claims and indemnify the citizens whose claims are thus either sacrificed
or rendered uncollectible.* This rule was laid down in the French
Spoliation cases and has too often been asserted by writers on inter-
national law In require many citations to support it.f
The Ship Juliana, U. S. Ct. of Claims, 1900 ; 35 Ct. Claims, 400, Pekllk, J.
The Ship Parkman, U.S. Ct. of Claims, 1 900 ; 35 < !t. Claims, 406, Weldon, /.
The Ship Apollo, l". S. Ct. of Claims, 1900 ; 85 Ct. Claims, 411, Peelle, J.
'/'/„ Ship Concord, I . S. Ct. of Claims, 1900; 35 Ct. Claims, 432, Nott, Oh. J.
Balch vs. Blagge, U. S. Sup. Ct., 1SH6, 162 V. S., 439, Fuller, Ch. J.
U. S. vs. Qilliat, IT. S. S. C, 1896; 164 U. S., 42, Peokham, J.
For a list "I French Spoliation awards reported to Congress by the Court of Claims,
see 23 Ct. Claims, 524; 24 Id., 550 ; 25 /(/., 5:;l ; 26 /./., 6:;7.
* See also pp. 21, 22, ante, of this brief.
f On page 890, 21 Court of Claim-, 1 > \ % is, ./.. say- in his opinion in Oray vs. United
States, which has just been referred to:
"The judiciary has seld occasion to deal with the abstract right of the citizen
against his government, for inacase raising such a question the individual is without
remedy other than that granted him by the Legislature. The question of right, therefore,
is usually passed upon by the political branch of tie- Government, leaving to the courts
the power only to construe the amount and nature of the remedy given. Still judicial au-
thority is nol wanting in support of lie' position that by the agreement with France the
United States became liable over to thsir individual citizens. Lord Truro laid down in
the House of Lords as admitted law,
" 'That if tin- subject of a country is spoliated by a foreign government he is entitled
to redress tin gh the mean- .if Ins own Government. But if from weakness, timidity or
any other cause on the part of his own Government no redress is obtained from the foreign
one, then he has a claim against his own country' (De Bode v. The. Queen, 3 Clarke's
House of Lords, 464).
"The same position is sustained by that eminent writer iq the public law,
Vattel, who held that while the sovereign may dispose of either the person or property of
a subject by treaty with a foreign power, still, ' as it is for the public advantage that he
thus disposes of them, the State is bound I., indemnify the citizens who are sufferers by
the transaction.' "
See also extract from Grotius, cited on page 709, §248, vol.2, Wharton's Int. Law
Digest: "But we must also observe this, that a king may, two ways, deprive his sub-
jecl of their rights, either by way of punishment or by virtue of bis eminent domain.
But if lie do it the last way it must be for some public advantage, and then the subject
ought to receive, if possible, a. just compen-at i. m for the loss he suffers out of the common
stock" (Grot., War and Peace, 333, f. 2, eh. 14. g 7).
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 51
hi the case of the General Armstrong, destroyed in L814 by British
naval neutral vessels in the harbor of Fuyal, after many attempts to
compel Portugal to pay the claim, a treaty was made in 1851 to refer
"the claim presented by the American Government in behalf of the cap-
tain, officers unit crew," of the vessel.* The Emperor Louis Napoleon
was selected to acl as arbitrator, lie decided against the United Slates,
on the ground that the officers and crew of the General Armstrong had
resisted the attack instead of having invoked and relied on the protection
which the neutral powers should have afforded. Congress afterwards
appropriated the amount of the claim and paid it on account of certain
errors in submitting the case.
The General Armstrong case is in line with these eases in one respect,
which should be carefully noted. Many yens before the amount of the
claim against Portugal was allowed and paid. Congress had appropriated,
and distributed among the crew of the vessel. 810,000 for prize monej
as a relief measure on the part of the United States.
The United States has never abandoned claims of its citizens against
a foreign government. On the contrary, it has urged the payment of
such claims at the very point of the bayonet and tie' mouth of the
cai i. and if the Attorney-General should succeed on these demurrers
it would be tantamount to obtaining a decision of tins Court that the
United States, in making the treaty ol peace with Spain, abandoned not
only the claims of its citizens, which were so just that, as the Attorney-
General himself declares, they were the cause of a war coating hun-
dreds of millions of dollars and thousands of lives, but it also aban-
doned its time honored and well adhered to policy of never sacrificing
the just claims which any of its citizens have against any foreign
srovernment.
SIXTEENTH. In construing; Article VII.
of the Treaty of Paris, the presumption must
be in favor of the claimants, as they are officers,
sailors and marines, or the widows and
" Art. II. of the Treaty of 1S51 with Portugal is as follows: "The high contracting
parties, net being able to come to an agreement upon tin' question of public law involved
in the ease of the privateer brig, General Armstrong, destroyed by British vessels in the
waters of the island of Fayal, in September, 1st I, Her Most Faithful Majesty lias pro-
posed and the United States of America have consented, that the claim presented by the
American Government, in behalf of the captain, officers and crew of the said privateer,
be submitted to the arbitrament of a sovereign potentate, or chief of some nation iu amity
with both the high contracting parties." (U. S. Treaties anil Conventions, Ed. 1889, p.
897.) Kor the acts of Congress indemnifying the owners and other matters connected
with this case see page 59 of this brief, post , see also •! Wharton's Int. Law I >igest, § 2 Is,
p. 714, for list of documents relating to case.
52 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
orphans of officers, sailors and marines of the
Navy of the United States.
The United States has always protected its soldiers and sailors in
foreign lands and has never made any distinction in demanding indem-
nity for injuries received in foreign lands between soldiers, sailors and
other officials and citizens who have not held official positions.
It will be impossible to review all the occasions on which our soldiers,
sailors and representatives in diplomatic and consular service have been
ill treated in foreign countries in lit >f peace, and the United Slates
has compelled the foreign nation to indemnify them for the injuries
which they have sustained. In this point it is purposed simply to refer
briefly to a sufficient number of such cases to show that it is not unusual
for the United States to collect indemnity under such circumstances.
Our soldiers and sailors, officers, crew and marines, assume all risk
of danger and <>l death when, in the course of their duty, they are at-
tacked by an open enemy engaged in actual hostilities, but while they
are on a mission of peace and rightfully in a friendly harbor, they are
entitled to every possible protection which should be accorded to any
other citizen of this country, and if they are killed, their government, so
long as it classes itself amongst self-respecting governments, will insist
upon indemnity for such acts alike to soldiers and sailors as to other
citizens as .Mr. Blaine demanded it from Chile in the Hull in/ore case.
and as Secretary Foster declared in the same case: the indemnity must
be proportionate to the gravity of the affair when the men wear the uni-
form of the United States.*
The Baltimore Case.
ft is not necessary to seek for precedents prior to the present decade.
In 1891, when our sailors from the Baltimore^ were attacked in Yal-
* The claimants under tliis point will cite lie/ following cases; there are undoubtedly
many other cases in which similar demands have been made and collected:
The Baltimore, U. 8 »• Chile, 1891, seep. 52.
The Chesapeake Sailors, U. S. vs. Great Britain, 1807, see p. 57.
Tin Gem nil Armstrong, U. S. vs. Portugal, IS 14, see p. 59.
The Wyoming, U. S. vs. Japan, 1863, seep. 59.
The Water Witch, V. S. vs. Paraguay, 1855, Bee p. 60.
Attache Hvesken's death, V. S. vs. Japan, 1861, see p. 61.
Spanish Consuls in New Orleans and Key West, Spain vs. D. S., 1851,
see p. 61.
Col. Margery's death, Great Britain vs. China, 1876, .see p. 62.
British Sailors in .Injimi, Great Britain vs. Japan, 1862, Bee p 62.
The French Corvettt Dupleix, France vs. Japan, 1868, see p. 63.
\ President Harrison in Ins 3rd Annual Message, Dec. 9, 1891,9 Richardson, 188,
ays
" On the 1 tit li of October, 1891, an event occurred in Valparaiso so serious and tragic
in iis circumstances and results as to very justly excite the indignation of our people and.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 53
paraiso, Hon. James G. Blaine, the then Secretary of State, placed the
right of this country to demand indemnity for men who were in our
Naval and Military employ upon the duty of relf-respecting nations to
protect their representatives and those who wore their uniform. On
January 21, 1892, in liis instructions to Mr. Egan hi' said, in words of
no equivocal meaning :
"No self-respecting government cau consent that persons in its
service, whether civil or military, shall lie beaten and killed in a
foreign territory in resentment <>(' acts done by or imputed to
their government without exacting a suitable reparation The
Government of the United States has freely recognized this prin-
ciple, and acted upon it, when the injury was done by its people
to one holding an official relation to a friendly power, in resent-
ment of acts done by the latter. In such case the United States
has not sought for winds of the smallest value or of equivocal
meaning in which to convey its apology, but has condemned such
acts in vigorous terms and has not refused to make other
adequate reparat ion."*
to call for prompt and decided action on tin- part of this Government. A considerable
number of the sailors of the I'. S. S. S. Baltimore, then in the harbor at Valparaiso, being
upon shore leave and unarmed, were assaulted by armed men nearly simultaneously in
different localities in the city. One petty officer was killed outright and seven or eight
seamen were seriously wounded, one of whom has since died. So savage and brutal was
the assault that several of our sailors received more than two and one as many as eighteen
stab wounds. An investigation of the affair was promptly made by a board of officers ol
the Baltimore, and their report shows that these assaults were unprovoked, that our men
were conducting themselves in a peaceable and orderly manner, and that some of the
police of the city look part in the assault and used their weapons with fatal effect,
while a few others, with some well disposed citizens, endeavored to protect our men.
Thirty-six of our sailors were arrested, and some of them, while being taken to prison
were cruelly beaten and maltreated. The fact that they were all discharged, no criminal
charge being lodged against any one of them, shows very clearly that they were innocent
ol any breach of the peace.
"So far as 1 have yet been able to learn, no other explanation
ot this bloody work has been suggested than that it had its origin
in hostility to those men as sailors of the United States, wearing
the uniform of their Government, and not in any individual act
or personal animosity." See also Special Message of President Harrison to
Congress on this subject of January 25, 1S'.I2, tt Richardson s Messages, pages 215 et seq ,
and note especially his remarks on page 2IS as to the effect of assaults on sailors on shore
have. These remarks are quoted^it length in a subsequent note under this point.
• The remarks of Mr. Blaine were preceded by the following statement:
•■ 1 am directed by the President to say to you that, he has given careful attention to
all that has been submitted by the Government of chile touching the affair of the assault
upon the crew of the U. S. S. Baltimore, in the t'liy of Valparaiso, on the evening of the
16th of October last, and to the evidence of the officers and crew of that vessel, and of
some others who witnessed the affray, and that his conclusions upon the whole case arc-
as follows:
" First. That the assault is not relieved of the aspect which the early information of the
event gave to it, viz.: That of an attack upon the uniform of the U. S. Navy, having its
origin and motive in a feeling of hostility to this Government, and not in any act of the
sailors or of any of them.
54 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
The prompt demand made by Secretary Blaine resulted in a recogni-
tion by Chile of the claim, and it was subsequently settled, not, however,
until the great statesman who bad so ably enunciated many American
principles had passed to his final rest. The negotiations were concluded
by his successor, Secretary ofState John W. Foster, who, in his dispatch
of July 1st, L892, to Mr. Egan, declared thai the gravity of the offense
was increased by the fact that the men wore the uniform of the United
States.* Chile finally paid $?5,000 indemnity! to the men who were
injured and for the families of those who were killed. No pecuniary
demand for National insult was made.
On the argument of the demurrers, counsel, closing the case for the
Government, entered into an elaborate distinction as to the difference
between the case of the Baltimort and the case of the Maine. He main-
" Second. That the public authorities of Valparaiso flagrantly failed in their duty to
protect our men, and that some of the police and of the Chilean soldiers and sailors were
themselves guilty of unprovoked assaults upon our sailors before and after arrest. Ue
thinks the preponderance of the evidence and the inherent probabilities lead to the con-
clusion that Riggin was killed by the police or soldiers.
" Third. That he is therefore npelled to bring the ease back to the position taken
by this Government in the note of Mr. Wharton of October 23 last (a copy of which you
will deliver with this), and to ask for a suitable apologj and lor some adequate reparation
for the injury done to this Government,
•• You will assure the Government of Chile that the President has no disposition to be
exactin" or to ask anything which this Government would not, under the same circum-
stances, freely concede. He regrets that, from the beginning, ttie gravity of the questions
involved has not apparently been appreciated by tin- Government of Chile, an. I that an
affair in which two American seamen were killed and sixteen others seriously wounded,
while only one Chilean was seriously lent, should be distinguished from an ordinary
brawl between sailors in which the provocation is wholly personal and the participation
limited" (t\ S. For. Rel., 18111, p. 307).
* " Mr. Foster conveys to Mr. Egan the gratification of the President at, the desire of the
Chilean Government, expressed in Mr. Egan's telegram of the 23d of June, and expresses
thebeliel that the indemnity to the relatives of the seamen killed,
and to the men who survived injuries received while wearing the
uniform of the United Slates, shall be proportionate to the grav-
ity of the affair. He requests information by telegram as to the views ot the
Chilean Government in regard to prompt compensation." (U. S. For. Rel.. 1892, p. 57.)
f [From Mr. Euan to Secretary Foster.]
U.S. For. Rel., 1S92, p. f.4.
" Legation ok the United States,
jif0 :;,;i '■ Santiago, , Inly 16, 1892.
(Received August 22).
" Sir: — I have the honor to refer to my No. 326 of 12th instant and to say that on
the 1 1th instant 1 communicated verbally to the minister of foreign relations the purport
of your telegram of 12th instant, in regard to the offer of compensation in the Baltimort
case, at which be expressed much pleasure. Today I received a note from him dated 13th
instant, translation of which is herewith enclosed, formally, on behalf of his Government,
placing at my disposal the sum of $75,000 gold, with the request that it be distributed
among the families of the two men killed and those who received personal injuries in the
attack of 16th October last iu Valparaiso."
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 55
tained that the United States was justified in demanding indemnity for
sailors who were killed on shore leave, but that it would not have been
justified in demanding indemnity had the sailors been on duty. In fart,
he went so far as to say. in answer to a. question propounded by claim-
ants' counsel, that had the riot in Valparaiso occurred at the quay and
that some of the men who were killed had been on shore leave and some
of them had been on duty in the Baltimore's cutter, the United States
could have demanded indemnity for those who were killed on the quay,
but not for those who were killed in the cutter.* Had the occurrence
actually taken place in that manner, counsel for claimants has grave
doubts whether .Mr. Blaine would have split, hairs with such neat dis-
tinction, and can hardly conceive that he would have interpolated into
the dispatch, just quoted, the words '-while there on shore leave,
although the United States will permit them to be killed with impunity
while they are on duty."
An entirely different view of the Baltimore case from that of the
Attorney-General was taken by President Harrison. Eis special mes-
sage to Congress of January 25, 1892, in regard to t lie relations with
Chile in regard to this affair completely undermines the position of the
Attorney-General in regard to the distinction between men on shore leave
and men on duty. f The imperative demand which was made on Chile
* During the closing argument made by Mr. Russell on behalf of the Government the
following colloquy between counsel occurred ; it appears "n page 13 of Mr. Russell's
printed argument :
"Mr Butler. 1 would like to ask you this question : Whether your argument goes so
far that if a cutter had taken the seamen ashore for shore leave, anil after they had gotten
on the dock and severed from the cutter an accident had happened in such a way that
some of the men on the dock IkuI been killed and seme of the men in the cutter, do yon
contend that those men who were in the cutter would have had no claim for indemnity
and those on the dock would have had a claim?
" Mr. Russell. If tie- cutter is regarded as a part of the man-of-war 1 answer'
accordingly."
fin this message (9 Richardson, 'JIT et seg.) Mr. Harrison, after alluding to the
remarks in his annual message about the Baltimore, which have just been quoted, says:
"I am still of the opinion that our sailors were assaulted, beaten, stabbed and killed not
for anything they or any of them had done, but. for what the Government of the United
Slates had done or was charged with having done by its civil officers and naval command-
ers, If that be the true aspect of the ease, the injury was to the Government of the
United States, not to the poor sailors who were assaulted in a manner so brutal ami so
cowardly.
"Before attempting to give an outline of the facts upon which this conclusion rests
I think it right to say a word or two upon the legal aspect of the case. The Baltimore
was in the harbor of Valparaiso by virtue ot that general invitation which nations are
held to extend to the war vessels of other powers with which they have friendly relations.
This invitation, I think, must be held ordinarily to embrace the privilege of such com-
munication with the shore as is reasonable, necessary and proper for the comfort and con-
venience of the officers and men of such vessels. Captain Schley testifies that when his
vessel returned to Valparaiso on September 1 1 the city officers, as is customary, extended
the hospitalities of the city to his officers ami crew. It is not claimed that, every
5<3 BEFOIJE THE SPANISH TUEATY CLAIMS COMMISSION.
was due to the fact that Mr. Harrison and his Cabinet considered that
the men, while on shore leave, were entitled to protection from all
assaults animated by local hostility to the United States, and that it was
as much a national insult as if the Minister or Consul or the flag itself
had been insulted, and was far more serious than though a mere citizen
had been injured, and this Government was bound to take action upon
it as though it had been an attack upon its own sovereignty.
If the views expressed by counsel for the Government in these eases
had been adopted by Mr. Harrison and his Cabinet, this National phase
ol' the case would have deprived the sailors themselves of all personal
indemnity or compensation except such as the United States should
gratuitously afford them by act of Congress out of the Treasury. \\\
fact, the offence was declared to he equivalent to an insult to the flag,
and. the injury was characterized as one to the Government of the United
States and not to the sailors. The demand, however, was made and
collected as indemnity for the sailors for the injuries received, exactly
as in the case of other citizens, and Mr. Harrison did not consider that
because the case involved National elements, the individual sufferers
eould be deprived of their just claims for their indemnity: the money was
paid by Chile as indemnity for the individuals;* it never went into
the treasury of the United States, but was distributed by the Secretary
of theNavy amongst the persons equitably entitled thereto.
The Attorney-General's position has no foundation whatever either
in law or in fact, for it is a matter of history that the United States has
demanded and collected indemnity for its citizens who have been killed
while in discharge of their duty in exactly the same manner as they
have demanded and collected such indemnity for citizens pursuing
their ordinary vocations as appears from the Baltimore and other cases
cited in this point.
personal collision or injury in which a sailor or officer ot such vessel visiting the
shore may be involved raises an international question, lint. 1 am deafly of the opinion
that where such sailors or officers are assaulted by a resident populace, animated by hos-
tility to the government whose uniform these sailors and officers wear, and in resentment
to acts done by their Government, not by them, their nation must take notice of the event
as one involving an infraction of its rights and dignity, not in a secondary way, as where
a citizen is injured and presents his claim through hi< own Government, but in a primary
way, precisely as if its ministers or consul or the flag itself had been the object of the
same character of assault.
"The officers and sailors of the Biilliiii-n; were in the harbor ol Valparaiso under the
orders of their Government, not by their own choice. They were upon the shore by the
implied invitation of the Government of Chile, and with the approval of their commanding
officer; and it does not distinguish their case from that of a consul that his stay is more
permanent or that he holds tin- express invitation of the local government to justify his
longer residence. Nor does it affect the question that the injury was an act of a mob. If
there had been mj participation by tie- police or military in this cruel work, and no neglect
on their part to extend protection, the case would still be one, in my opinion, when its
extent and character are considered, involving international rights."
* See letter from Mr. Esjan to Mr. Foster of July 16, 1892, already quoted in full in
the notes to this point.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 57
The Chesapeake Sailors.
It is, of course, unnecessary to recite the details of the attack of the
British man-of-war Leopard on the United States frigate Chesapeake off
Hampton Roads, in June, 1807. It is a part of the history of our navy
and of our country.* The commanding officer of the Leopard claimed
that certain seamen who had deserted from British vessels were on the
Chesapeake, and lie demanded their delivery. They were American
citizens and the demand was refused. The Leopard opened fire upon the
Chesapeake, which was unprepared fur an engagement, and was obliged
to surrender after a brief resistance and allow the men demanded to be
taken fr«>m her. During the engagement three men on the Chesapeake
were killed, eighteen wounded and four captured. The attack was one
against the sovereignty of the United States to the last degree, f There
was mi personal animosity against the individual sailors; the demand for
the delivery to the British man-of-war of the seamen was formally made
by a naval officer of Great Britain upon a naval officer of the United
States.
A demand was immediately made by the United States Government
upon Great Britain,! and Mr. James Monroe, then Minister to England,
was instructed to demand that ample reparation Lie made without diffi-
culty or delay. After a great deal of diplomatic negotiation which fol-
lowed this demand, Mr. Erskine, the British .Minister, offered, in April,
1809, to have his Government formally disavow the act, "restore the
men forcibly taken out of the Chesapeake," and, if acceptable to the
American Government, " make a suitable provision for the unfortunate
* For the report of the Naval Court of Inquiry on the Leopard-CIiesapeah affair, see
3 Am. State Papers, 6, 21, 22.
t In referring to the matter President Jefferson said, 8 Am. State Papers. 24: "At
length a deed, transcending all we have hitherto seen or suffered, brings the public sensi-
bility to a serious crisis, and our forbearance to a necessary pause. A frigate of the United
States, trusting to a state of peine, and leaving her harbor on a distant service, has been
surprised and attacked by a British vessel of superior force, one of a squadron then lying
in our waters and covering the transaction, and lias been disabled from service, with the
loss ol a number of men killed and wounded. This enormity was not only without provo-
cation or justifiable cause, but was committed with the avowed purpose of taking from a
ship of wur of the United States a part of her crew ; and that no circumstances might be
wanting to mark its character, it had been previously ascertained that the seamen
demanded were native citizens of the United States." The foregoing is quoted from the
President's proclamation of July 2. 1807, requiring British vessels to depart from the
waters of the United States as the result of the Leopard's attack on the Chesapeake.
\ See Instructions Secretary of Slate Madison to James Monroe, then Minister to
England of July 6, 1807, 3 Am. State Papers, 183. The words used (bottom of p. 184) are
almost identical with those of Secretary Sherman : " The President has the right to expect
from the British Government, not only an ample reparation to the United States in this
case, but that it will be decided without difficulty or delay." In case suitable reparation
was not offered he was instructed to " take proper measures for hastening home."
58 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
sufferers."* No question whatever was raised by either government as
to the right of the Government of the United States to demand indem-
nity for sailors killed while they were on duty, defending their vessel
against an unwarranted attack by the war vessel of a power at peace
with the United States. Nor was the point, so persistently argued by
the Attorney-General, as to the sailors simply being an integral part of
the ship equipment and crew, and therefore not entitled to personal in-
demnity, ever suggested by either government.
The United States accepted this offer,f but the British Government
disavowed it. In November, 1811, however, the British Government
authorized its minister at Washington to renew the offer, including "a
suitable pecuniary provision for the sufferers in consequence of the
attack on the Chesapeake, including the families of the seamen who
unfortunately fell in the action. "J This proposition was accepted by
the United States.§
The correspondence, a part of which is printed in the notes to this
section, shows that the United States, even in its days of infancy, did
not hesitate to demand indemnity for its sailors when they were wrong-
fully killed or injured, although the deaths and injuries were the result
of a direct attack upon its sovereignty, as it necessarily was when one of
its own war vessels was fired upon by the war vessel of another power; in
fact, the attack was of such a nature as to justify its being referred to in
the diplomatic correspondence as a naval engagement.
* Mr. Erskine to Mr. Smith, April 17, 1809, and April 8, 1803, 3 Am. State Papers,
295, 297.
f Mr. Smith to Mr. Erskine, April 17, 1S09, 3 Am. State Papers, 296.
I Mr. Foster (British Minister) to Mr. Monroe (Secretary o( State): "Washington,
Nov. 1, 1811. * * * (The propositions were as follows):
"First. That I am instructed to repeat to the American Government the promot dis-
avowal made hy His Majesty (and recited in Mr. Erskine's note of April 17, lSUSt, to Mr.
Smith), on being apprized of the unauthorized act of the officer In command of his naval
forces on the coast of America, whose recall from a highly important and honorable com-
mand immediately ensued, as a mark ol His Majesty's disapprobation.
" Secondly. That] am authorized to offer, in addition to that disavowal on the part
of Ilis Royal Highness the immediate restoration, as far as circumstances will admit, of
the men, who in consequence of Admiral Berkeley's orders were forcibly taken out of the
Chesapeake, to the vessel from which they were taken, or, if that ship should no longer be
in commission, to such seaport of the United States as the American Government may
name for the purpose.
" Thirdly. That I am also authorized to otter to the American
Government a suitahle pecuniary provision for the sufferers in
consequence of the attack on the Cheasapeahe, including the
families of those seamen who unfortunately fell in the action and
of the WOUnded survivors." 3 Am. State Papers, 499, 500.
i Mr. Monroe to Mr. Foster. November 12, 1811, 3 Am. State Papers, 500.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 59
The General Armstrong.
When, iu direct violation of neutral rights, the British fleet attacked
the privateer brig General Armstrong* in Fayal harbor, in 1814. during
the war of L812, and Portugal refused the protection due to the ships of
friendly nations in her neutral ports, Congress voted $10,000 as prize
money to the privateersmen whose gallant conduct had proved so effi-
cacious at a critical moment to this country : that did not interfere,
however, with the State Department pressing a claim against Portugal
for the owners of the vessel and for the sailors who were killed, until at
last, even after arbitration, unfortunately decided (upon papers
improperly submitted) against us, Congress still indemnified the
owners of the vessel and the crew for the losses which they had sus-
tained, and which were in their nature claims against a foreign gov-
ernment. Although these men were not actually enlisted officers of
the United States they were privateersmen, and as such fought under
the Stars and Stripes and received prize money from Congress.
The Wyoming-.
When, in 1863, an attack was made upon naval vessels of the
United States and of other powers in the Japanese waters, and
in the Straits of Shiinonoseki, Japan was obliged not only to ren-
der an apology but also to pay indemnities to the French, Dutch,
British and United States Governments aggregating $3,000,000; sub-
sequently. Japan having fully atoned for the offense, the United
States returned its share of that indemnity, following the long-estab-
lished precedent of this country that it would not accept a money
indemnity for an insult to the flag; this Government, however, de-
ducted $140,000 from the indemnity received to represent the expenses
actually incurred by the Government and also as compensation and in-
demnity for the sailors and marines of the Wyoming, who were
attacked, and some of whom were killed on that occasion. f
* For full account of the Oeneral Armstrong case see 2 Moore's Arbitration, pp. 1071
ct seq, and see also p. ol, ante, of this brief. The General Armstrong was not a regular
naval vessel belonging to the United States; it was, however, a duly commissioned priva-
teer sailing under letters of marque, and the fact that Congress voted prize money to !he
ciew shows that the men occupied a </»«.«'-naval position. See Act of 1834, 6 U. S. Stat,
at L., 603; Sin. Doc. 231, 56th Cong., 2d Sess., Part. I., for numerous reports in regard
to this case ; Act of 1882, 22 U. S. St. at L„ 697 ; Act of 1895, § 1. 28 U. S. St. at L., 84.3.
f Counsel for the Government have relied upon the fact that in distributing the
Wyoming indemnity among the crew Congress ordered it to be done as prize money.
That is, the distribution was made on the basis of prize money. The point on which the
claimants cite the Wyoming is that the United States received from Japan I wo separate
funds — one for $750,000 to atone for the insult, which was refunded in full, the other tor
$140,000, which was received for indemnity for expenses and for the crew. This was re-
tained, and the distribution to the crew, allhough it was made under an act of Congress for
gallant conduct and on the basis of prize money, was, as a matter of fact, made out of
moneys received from Japan as an indemnity for an act which was committed during a
period of peace, but for which it was responsible. That the distribution of the Wyoming
nO BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
The Water Witch.
In 1S55 the Government of the United States sent out a naval vessel
called the Water Witch, tinder the command of Lieutenant Thomas J.
Page, to make a survey of the tributaries of the Rio de la Plata and the
Paraguay Rivers. The Brazilian Government gave its consent to the
expedition so far as waters controlled by it were concerned, but the ves-
sel went up t he Parana River, and proceeded a few miles above the point
where it forms the common boundary between Paraguay and Argen-
tina. At that time Lieutenant Jeffers, who was then iu command of
the Water Witch, perceived that the Paraguayans were getting guns ready
apparently for an attack; he thereupon cleared his vessel for action also.
A Paraguayan canoe came alongside and a man handed Lieutenant Jeffers
a paper written in Spanish, which he declined to receive. Thereupon he
stood up the river with his crew at quarters. Two blank cartridges were
fired by the fort in quick succession, and these were followed by a shot
which carried away the wheel of the vessel, cut the ropes and mortally
wounded the helmsman. On receiving this fire Lieutenant Jeffers di-
rected a general fire in return. The action continued for some minutes.
It seems that the Paraguayan Government had forbidden foreign men-
of-war to enter the waters within its jurisdiction. This fact was ad-
mitted, but Lieutenant Page claimed that as the river was a common
boundary between the Argentine Confederation and Paraguay he hail a
right to go up the main channel of the river, although it was on the
Paraguayan side. A great deal of correspondence ensued in regard to
this matter, and the Paraguayan Government regarded the attempt of
the Lieutenant in charge of the Water Witch to force his way up the
river as an outrage, and in this respect they have been sustained by a
writer on international law of no less authority than M. Calvo, the
eminent Brazilian, but whose sympathies, of course, were with the South
American countries.
Notwithstanding the fact that the man at the wheel of the Waier
Witch was doing his duty on an occasion in which actual hostilities oc-
curred, the United States demanded $10,000 indemnity for his family.
and subsequently that amount was paid by the Government of Paraguay
and turned over to the family of the injured seaman. Counsel for the
Government in their brief have erred in saying that this matter was
found by an arbitration committee to be without foundation, as the
Hopkins claim, and not the Water Witch claim, was submitted to arbi-
tration, and the Paraguayan Government, at the same time that it re-
fund was placed by the Senate Committee on Foreign Relations not on the grounds of
gratuity but on those of justice, appears from report No. 120, •"•Till I longress, 2d Session,
July 7, 18S2 (Doc. 231, p. 440) in which on page 45S it is said that justice and equity re-
quire that Congress should recognize the claims of the crew. " Their claim is based upon
the convention by which they were intended to be provided for, upon the fact that
$140,000 was set apart for them by the other contracting parties and paid to the Tinted
Slates in virtual trust for them."
ARGUMENT OF CHAS. H BUTLER IN MAINE CASES. 61
ferred the Hopkins claim to arbitration, voluntarily paid the indemnity
for the sailor of the Water Witch.*
The Huesken Case.
In January, 1861, Mr. Huesken, the interpreter to the Japanese Lega-
tion, was assaulted and killed; the United States at once demanded
punishment of the offenders, an apology for the offence and an indem-
nity for the widowed mother of Mr. Huesken, all of which was accorded,
and the sum of $10,000 was paid by the Japanese Governmentand trans-
mitted to Mrs. Huesken. f
The Spanish Consuls in New Orleans and Key West.
In all the cases just cited the United States demanded and collected
indemnity from foreign powers; it has also jro/V/ indemnity under similar
circumstances.
*A full account, (if the Water 117/, h ami Hopkins cases, and the relations of the United
States with Paraguay arising therefrom will be found in Chapter 22, 2 Moore International
Law, pp. 1485 el seg.; and see the report of the Secretary of the Navy, December 2, 1859.
f See message and diplomatic correspondence for 1862, pp. 804-So7.
In a letter of Mr. Harris to Mr. Seward, November 23, 1861, he says: "In your
dispatch of August 1 (No. 18) you informed me that you urgentlj- insist, except that, in
the extremest necessity, I shall not consent to any postponement of any covenant in the
existing treaty without first receiving satisfaction of some marked kind for the great
crime of the assassination of Mr. Huesken while in the diplomatic service of the United
States. You leave me to determine on the form and mode of that satisfaction, adding
that it would be best to secure, if possible the punishment of the assassins; but circum-
stances unknown to you must enter into the question, and may niodif}- my action, but
deem the principle too important to be abandoned, After reflection, it appears to me that
the satisfaction required might be given in either of the three following forms, viz.: 1. By
the arrest and punishment of the assassin ; 2, by a salute to our flag; or. 3, by a money
pa3'ment as an indemnity." The serious question of receiving a money indemnity as
" selling the blood " was referred to at a subsequent point in this letter,
On November 27th Mr. Harris wrote to Mr. Seward that the Japanese Government
would pay an indemnity and that no effort should be wanting to punish the offenders, in
regard to which he said :
" I replied that Mr. Huesken was the only child of his widowed mother, who, by his
death, had been deprived of her sole means of support. I would therefore propose that
they should pay her a sum sufficient for her support, either in annual payments or in a sum
sufficient to purchase a life annuity equal in amount to the income she receiver) from her
late son. I stated, very emphatically, that they must not consider this a proposition] from
me to sell the blood of Mr. Huesken, or that the payment of any sum of money could atone
for his murder.
"After a few explanations had been asked and given the ministers promptly agreed to
pay me the sum of $10,000 for the benefit of Mrs. Huesken. They then stated that they did
not consider that the payment of this sum in any way released them from their obligation
to bring to punishment the murderers of Mr. Huesken."
These extracts have been quoted at length in order to show that while Mr. Huesken
was in the diplomatic service of the United States, and this country was dealing with the
other questions in connection with the opening of our intercourse with Japan, they did
not hesitate to demand personal indemnity, although the act was committed directly
against the sovereignty of the United States and was an exhibition of the animosity of
the Japanese people against foreigners, and especially agaiust the United States.
6-,' 1SEF0RE THE SPANISH TREATY CLAIMS COMMISSION.
In 1851, when the news of the summary execution in Cuba of Crit-
tenden and other members of the Lopez expedition reached New Orleans
and Key West, there were strong anti-Spanish riots in both cities, in the
course of which Spanish citizens were assaulted and their property
destroyed. Among those who suffered injury were the Spanish consuls,
and a reclamation was made upon this Government on their behalf
through the Spanish Minister. A long correspondence ensued in regard
to this matter, which finally resulted in the United States indemnifying
the consuls for the loss and indignity which they had sustained.*
A full account of this matter can be found in Wharton's Digest, and
it is cited to show that the United States did not take the position when
a demand was made upon it that consuls should not. be indemnified
because they occupied an official position under their Government. In
fact, the correspondence shows that the proper authorities of the United
States considered that there was a special obligation to indemnify the
consuls beyond that which existed in regard to any other Spanish citi-
zens. It is undoubtedly to these cases that Mr. Blaine referred in his
instructions to Mr. Egan when he declared that the United States had
recognized the principle that no self-respecting Government would per-
mit its representatives, either civil or military, to be beaten and killed in
a foreign country without demanding suitable reparation.!
The Margery Case.
In 1875 Mr. Margery, an English officer and five Chinaman accom-
panying him on an exploring mission from British Burundi, were killed
by native soldiers and the British Minister at once demanded that the
British Government should be allowed to renew the expedition and that
an indemnity of 150,000 taels should be paid, of which 30,000 taels was
to go to Margery's family. In this case. Mr. Avery. United States
Minister, united with the British Minister (as did also some of the
other foreign ministers) in demanding that the Chinese Government pay
this indemnity for the death of a British officer.J
The British Sailors in .Japan.
In 1862 British sailors on duty at the Brit sh Legation at Yedo were
killed in a manner for which the Japanese Government was responsible,
and on the failure of that Government to properly meet the demand which
was made upon them, Earl Russell, then in charge of the British Foreign
office, directed a peremptory demand to be made to the Japanese
* For a full account of these occurrences see 2 Wharton, § 226, p. 601.
| See extracts from Mr. Blaine's instructions of January 2, 1892, on p. 53, ante, of this
brief.
X Letter of Mr. Avery to Mr. Fish from P*kin, April 1, 1875, U. S. For. Rel., 1875, pp.
310 etteq.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 63
Government, " which was not to be modified, delayed or even discussed,''
bul to be met within twenty days.*
The French Corvette Dupleix.
On March 8, 1868, while the French frigate Venus and French cor-
vette Dupleix were in the port of Sakai, Japan, a number of Japanese
armed men attacked the strain launch of the Dupleix at a landing.
eleven men, including the midshipman in charge of the launch, were
killed, four were wounded and one escaped unhurt. No damage was
done to the ship, the launch or other national property of France. The
attack was disavowed by Japanese authorities, hut the French Govern-
ment through the French Minister at once made a demand on the Mikado,
which included the execution of all those who had participated in the
attack, an apology to be made on the Venus by two princes, one of the
blood and one of the province, and •'• an indemnity of $150,000 to be paid
on behalf of the Damio of Tosa to the French Government, the interest
on the fund to be applied towards the support of the families of the
officers and the men who were murdered." These demands were acceded
to and the indemnity was paid in three installments of $50,000 each.
The fact that the victims of this outrage were an officer and sailors of
the French Navy, who were actually on duty in a naval vessel when
they were killed, and the attack resulted from the hostile feeling
against foreigners, makes it almost identical with the Maine case, and
peculiarly applicable thereto as a precedent for demanding indemnity
for the families of the sailors as well as insisting upon suitable apology
for the insult to the flag, f
* Letter from Mr. Pruyn to Mr. Seward, from Legation of the United States in Japan,
Yedo, April 10, 1S6X:
"Sir: I have the honor to inform you that Lieutenant-Colonel Neale, her Britannic
Majesty's charge d'affaires, read me a communication a few days since, while I was on a
short visit to Yokohama, which he was about sending to the Japanese Government, agree-
ably to the instructions of Earl Russell, in which he makes a peremptory demand on this
Government, ' which is not to be modified, delayed or even discussed,' but to be met
within twenty days of the 6th inst.
" For the murder of the British sailors in June last at the British Legation, the sum of
£10,000 i3 again demanded; for the murder of Mr. Richardson and the wounding of his
companions on the tokaido in September last, an apology is demanded from this Govern-
ment, aud also the payment of £100,000 sterling.
'■At the same time a fiigate is to be sent to the territory of the Prince of Satsuma
(abcut sixty miles from Nagasaki) with a demand for the payment by him of the sum of
£25,000, and that the chief murderers of Mr. Richardson shall be executed in the presence
of a British officer.
"A British fleet of twelve ships of war, under command of Rear-Admiral Kuper, is to
enforce this demand ; the measures to be adopted are not yet determined on, but a blockade,
or some other measures short of hostilities, is first to be resorted to." (U. S. Diplomatic
Correspondence, 18 68, Part II., p. 989.)
f A full account of this affair will be found in Diplomatic Correspondence of the
United States for 1868, Part 1., from pages 698-808 ; see index of that volume for the
particular dispatches which refer to this incident.
G4 r.EFORE THE SPANISH TREATY CLAIMS COMMISSION.
SEVENTEENTH.-The fact that the deaths
and injuries which are the basis of the claims
occurred and were received on a battleship of
the United States Navy, does not in any way
relieve Spain from responsibility therefor,
and the doctrine of exterritorialty applicable
to jurisdiction of the sovereign owning- a war
vessel over such vessel in a friendly harbor
does not in any way relieve the sovereign of
the port from the necessity of protecting such
vessel or of responsibility in case of failure to
afford such protection
It was with some surprise that the counsel for the claimants heard
the counsel for the United States who opened and closed the argument
for the Government declare that the fact that the injuries for which
the petitioners have riled their claims, were not received within the
jurisdiction of Spain, and therefore Spain was not liable therefor to the
United States or to the petitioners; but that the fact that the deaths
and injuries occurred and were sustained on a United States battleship
transferred the territorial location of the tort committed from Spanish
to United States territory. Still more surprised were the counsel for the
claimants when they heard United States couusel, in order to relieve their
Government from the payment of a comparatively small amount of
money, solemnly invoke before this Court those principles of exterri-
toriality applicable to the preservation of jurisdiction of the United
States over its own warships wherever they may be, for the purpose of
relieving the sovereign of the foreign port which such vessels might
visit, from liability for deaths of, and injuries to, the officers and crew
of such vessel resulting from the wanton destruction thereof.
There is no rule of international law which it is more important for
tie- United States to preserve than that which places the burden of the
protection of American war vessels upon the sovereign of the port
wherever it may be, notwithstanding the rules of exterritoriality as to
jurisdiction thereon: this thought must have been uppermost in the
mind of Secretary Sherman when he penned the instructions of March
26th, 1898, which is cited under another point,* in which he claimed
the jurisdiction over the vessel for the United States but charged the
Spanish Government with the protection thereof while in the harbor of
Havana.
* See note under Nineteenth Point on p. 75. post, of this brief.
ARGUMENT OF CHAS. H. BUTLEB IN* MAINE CASES. 65
The entire amount of the claims which have been Sled with this
tribunal on account of the destruction of the Maine equals about one-
half the average value of the battleships of the United States Navy, and
therefore the necessity of maintaining the rule of co-existent exterri-
torial jurisdiction and local protection is infinitely more important for
the United States than it is to defeat these claims. Notwithstanding
the immense amount, as well as the principle, which is at stake, counsel
for the Government in these cases have enunciated as a principle
of law that when vessels of the United States are in foreign harbors
the State in whose water they float is exempt from care or liability per-
taining to their management and control.
This may be true as to what happens on the vessi 1, but the Attorney-
General extends the exemption to relieving the local sovereign from
affording any protection to the ship itself, and if his position in this
respect is sustained it will oblige every vessel of the United States
Navy when it enters a foreign port to protect itself and to guard against
disasters similar to that which happened to the Maine, and furthermore
it will shift from the sovereign of the port to the 1'iutcd States not
only the burden of protection, but also the burden of proving the
cause of any disaster which might happen to the vessel.
In order that there may be no question as to the position of the
Attorney-General in this respect, his point is quoted, and the italics in
the quotation are his own.*
The propositions of the Attorneys-General in this respect arc so
monstrous that it is practically impossible to refute them. It is the
Erst time that the doctrine of exterritoriality, which has been enun-
ciated, sustained and expanded solely for the purpose of affording pro-
tection to the vessels of one sovereign power in the territory of another,
*" li is submitted that no individual claim for indemnity against Spain arose out of
the explosion of the Maine under the circumstances; and that if any claim originated
fi i that occurrence it was a national claim. And this results from the peculiar situa-
i ion. As a public vessel of the United States, the Maine, although at the time ol its
destruction was physically within the territorial waters of Spain, yet she was not within
the jurisdiction of Spain. Public vessels of a State passing through or anchoring in
foreign waters enjoy an exemption from territorial jurisdiction under a well recognized
principle of international law. In these circumstances they enjoy absolute immunity
from the exercise of jurisdiction by the local authorities. They are considered, as it
were, projections of foreign territory, subject only to the jurisdiction of the flags they
bear. As they are exempt from local jurisdiction, tin Slate in whose waters they Jloat is cor-
respondingly exempt from any cart or liability pertaining to their management and control,
s * *
" From I lie principle of immunity of ships of war in foreign waters from local jurisdic-
tion, certain material consequences result, some of which are convenient and advan-
tageous to the ship, its crew, and equipment; others which perhaps may, on occasions, be
inconvenient and burdensome. The-e consequences, however, do not affect, or modify the
rule of international usage in this regard. As in man) other situations which are
familiar in law and custom, the maxim applies. Qai senlit commodams entire debet et onus:
He who derives the advantage ought to sustain the burden."
6G BEFORE THE Sl'ANISH TREATY CLAIMS COMMISSION.
luts been distorted into a general license to destroy ships and men with
impunity; and, it' it were not for the fad that able counsel devoted at
least two hours to maintain these propositions, it would be passed over
with a mere mention in this brief : inasmuch, however, as the proposition
was seriously presented to, and argued before, this tribunal it will be
necessary to make some reference to the general doctrine of exterritor-
iality and to the particular elements of such doctrine which were appli-
cable to the Maine at the time she was destroyed in Havana harbor.
Fortunately for Court, for counsel and for claimants, the position of
the United States in this regard was definitely, clearly and concisely set
forth within a few weeks after the occurrence, and the extract from Sec-
retary Sherman's instructions of March 26 to Minister Woodford, which
is quoted under another poinl is the enunciation of the proper depart-
ment of the Government of the United States upon this subject, and
should certainly be adopted by this Court, not only because it was such
an enunciation, but because it was a correct statement of the situation.
On March 26th Secretary Sherman, in transmitting to him a cable
summary of the report of the Naval Court of Inquiry, directed Minister
Woodford to communicate to the Spanish Government that the Maine
had entered the harbor ol Havana, relying upon the security and pro-
tection of a friendly port, and that while she remained as to what look
place on board under the jurisdiction of her own government, the con-
trol of tin' harbor remained in the Spanish Government, which as the
sovereign of the place was bound to render protection to persons and prop-
erty there, and especially to the public ship and the sailors of a friendly
power*
Secretary Sherman summed the whole case up in that paragraph.
The United States retained jurisdiction, but the Spanish Government
was bound to afford protection.
The Attorney-General's proposition practically means that the bur-
den of protection of. as well as jurisdiction over, a battleship of the
United States Navy in a friendly port, devolves upon the United States;
if this is sustained ic would practically relieve every foreign nation from
affording that degree of protection to American vessels, which, under the
rules of international law. they always have been, and now are, obliged
to afford, and which the United States always affords, actively, and not
passively, to the warships of other friendly nations within its ports.f
* Set- extracts from Secretary Sherman's instructions to Minister Woodford cm p.
77, posit, of tliis brief.
\ When the Spanish warship Viscaya visited New York in February, 1898, every
possible precaution was taken to insure its safety. Police and revenue cutters guarded
it night and day, and persona without authority were not permitted to approach within a
certain distance of it. The correspondence in regard to the exchange of visits of the
Spanish ami American war vessels is referred to in U, S, For. Re!., 1898, under Spain,
gee sub-ht-uil Battleship Ma>u,,
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. H7
The doctrine of exterritoriality applies equally to ships of war and
to the residences of foreign ambassadors and foreign ministers*
In neither case dues the local jurisdiction extend over the ship.
the embassy or the legation, but i he local sovereign is bound to protect
the ship and the resilience, and also the people thereon and therein.
Vattel declares that the " independency of the ambassador would
be very imperfect, and his security very precarious, if the house in which
he lives were not to enjoy perfect immunity and to be inaccessible to the
ordinary officers of justice." But as to protection he says : '-The house
of an ambassador ought to be safe from all outrage, being under the
particular protection of the law of uations and that of the country; to
insult it is a crime both against the State and against all other nations "f
Tie- statement of the law in Secretarj Sherman's letter to Minister
Woodford, which has already been cited, is almost a paraphrase of
Vattel's position as to immunity from local jurisdiction and the co-ex-
isting right t<> rely upon the protection of the local sovereign.
Lieutenant-Colonel and Deputy Judge Advocate George B. Davis.
formerly Professor of Law at the Military Academy at West Point, is one
oftheablest authorities on international law in the United States. The
sei .1 edition of his " Elements of International Law." originally pub-
lished in 1887, appeared in L900, and in his chapter devoted to the prin-
ciples of exterritoriality he practically argues this case for the claimants
and distinctly sustains their position as to the degree of protection to be
accorded by the sovereign of a port to the war vessels of a friendly power
which may be therein on a mission of peace.
In support of the principle that while the sovereignty of the owner
of the vessel continues thereover, the sovereign owner of the port
must render protection, he cites the case of The Exchange^ and there-
after proceeds to give instances in which the questions of exterritoriality
have been involved. He refers to the case of the Sitka, a Russian ves-
* Wheaton, in enumerating tin- instances in which the municipal institutions of a
State may operate beyond the limits of its territorial jurisdiction, specifies :
" (1) person of the sovereign ; (2) the person of the ambassador and his residence ;
(:i) the foreign army or Meet marching through, sailing over or stationed in the territory
of another State, and in the absence <■< any express prohibition the polls of a friendly
State are considered as open to the public, armed and commissioned ships belonging to
another nation with whom that State is at peace, Such -hip- ai xempt from the juris-
diction of the local tribunals and authorities, whether they enter the ports under the
license implied from the absence of any prohibition or under an express permission
stipulated by treaty" (Dana's 8th Edition, 1866, Part 2, Sec. 95, page 153).
In elaborating upon this, he says: " If there shall be no prohibition, the ports of a
friendly nation are considered as open to the public ships of all powers with whom it is at
peace, and they are supposed to enter such ports and remain in them, while allowed to
remain, under the protection of the Government of the place " (Id., § 100, p. IB9).
j Vattel, Bk. 4, Ch. 9, § 117.
^Schooner Exchange vs. McFaddm, IT. S. Sup. Ct., IS; 7 Cranch, 103, Marshall,
at. j.
68 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
sel, which brought a prize into the port of California, and the captain of
which refused to recognize process issued by the United States, and was
sustained therein by the Attorney-General; he also cites under the same
head the cases of the Baltimore, the Constitution* and the Maim-.
Professor Davis published his last edition before any claims had
been filed on behalf of sufferers of the Maine. He has occupied a
position of great importance under the United States, thai of instruct-
ing the men who wen; to he the officers in its army, and who necessarily
should possess a complete knowledge of the practical relations of the
United States with foreign countries; if cannot lie presumed that he
would improperly impute to a foreign nation lack of care and protection,
or charge it with any greater degree of care and protection than the
principles of international law actually require. His opinion, there-
fore, in regard to the responsibility of the Spanish Government for the
destruction of the Maim is entitled to he received with great weight
by this Commission, and as he covers in his brief review of the case
both the question of degree of authority retained thereover by the United
States and the degree of protection to be accorded thereto by Spain, his
summary will be quoted in full in the notes as it sustains in every respect
the claimants' position that, as he expresses it:
"The privilege of exterritoriality is admitted to extend only
to the officers and crews ot public armed vessels, and goes no
further than to exempt the vessel and crew from the operations
ot the local laws. It confers ho authority upon the officers of
the visiting vessel to resort to measures of defence, or of
precautionary police, outside the ship, or within the territorial
waters of the State in whose harbor it is anchored; for such
protection from purely external injury the ship must rely upon
the efforts ot the local authorities, whose duty and responsi-
bility it is to resort to such measures ot precaution as are
suggested by the emergency of the occasion," and that —
"If, in view ot the local situation, or in consequence of its
strained relations with the Government of the United States,
the Spanish Government was either unable or unwilling' to
charge itself with the safety and security of the Maine, it
should have withheld its consent to the entry of the vessel
into its territorial waters; tailing to do this, that government
was justly held responsible for the disaster which ensued upon
its failure to exercise the diligence which was demanded by
the circumstances ot the case.")
* In iliis case the Admiralty Courts of Great Britain refused to take jurisdiction of a
salvage case against a vessel belonging to the I". S. Navy.
|" Case of tin " Maine." The United States battleship Maim- entered the harbor of
Havana, (Julia, on January 25, 1898. Immediately upon her arrival, the customary
civilities were exchanged and the vessel was conducted, by a government pilot, to the
anchorage assigned her, as a foreign vessel of war, by the local naval authorities. Here
the ship remained at anchor for a period of about three weeks. During that time it dors
not appear that any special measures of precaution were resorted to by the Spanish
Government with a view to insure the safety of the visiting vessel. At 9.411 P. M., on
ARGUMENT OF CHAS. H. BITLER IN MAINE TAPES. 69
EIGHTEENTH. Article VII. of the Treaty of
1898 relinquished claims of every kind, and
this included claims whether the same had
been presented by the Government of the
United States to that of Spain or not.
Counsel for the Government have endeavored to limit tin? use of the
word " claims" as used in Article VII. of the treaty of 1898 to the de-
February I5lh, being at ill-' time moored to the buoy assigned her upon her arrival, the
I/,//,., was destroyed by the explosion of a submarine mine which caused the incidental
explosion of one or more of her forward magazines. A naval court of inquiry was imme-
diately convened by order of the United States Government, which, after a careful and
exhaustive investigation of the circumstances, reached tin- opinion that the destruction of
the vessel was caused by the explosion of a mine exterior to the ship, and was not due to
the fault or negligence of her officers and crew. An inquiry instituted by the Spanish
Oovernment, after a less < plete investigation, is believed to have reached a different
conclusion; hut I In- position of certain parts ol the ship's structure, in consequence ol the
explosion, including portions of the keel, He- outer shell, and the outside bottom plating,
were such as to offer conclusive proof that, the destruction was due to an exterior explo-
si, >n. Bywhomand under what circumstances the destruction was caused has never
been determined. It is proper to say, however, that, the act was promptly disclaimed bj
the local colonial authorities, and it has never been authoritatively suggested that the
injury was ordered, or authorized, or even countenanced, bj any branch or portion of the
governmental authority of Spain.
" Although the relations existing between the governments of the United States ami
Spain were strained ai the time of th icurrence, tin' circumstances at ti nding tin- entry
of th« vessel were by no means unusual, and the visit was not, made until a conference
had been had with the Spanish minister in Washington, in which the renew al of th,. visits
of public armed \ Is of the United States to Spanish waters had been discussed and
accepted, and the governmental authorities at Madrid and Havana had been advised of
the purpose of the United States Government to resu friendly naval visits at Cuban
ports, and that In that view the Maine would forthwith call at the port, of Havana.
" The case is novel at international law in that it ei.es rise to a question as to
the nature ami extent of the responsibility incurred by a stale winch, under the cir-
cumstances above set forth, permits a foreign vessel ol war to enter its ter-
ritorial waters. The rule of international law applying to the case is believed
to be correctly slated by Chief Justice Marshall in the ease of the Exchange in
the following terms: ■ Unless closed by local law, the ports of a friendly nation are con-
sidered as open to the public ships of all power- with whom it is at. peace, and they are
supposed to enter such ports, and to remain in them, while allowed to remain, under the
protection of the government of the place.' [Then follows the first quotation in the text. |
" Where independent nations are concerned, the degree of care to lie shown by one
State in order to prevent injury to another, where such duty of prevention exists, is per-
haps best described by the term ' due diligence'; this means something more than, and
different from, 'reasonable care,' as that term is used in describing the corresponding
obligation owed by one individual to another, or to the public, and implies that the
diligence used in the prevention of injury must he proportioned to the risk of such
injury occurring to the vessel of a friendly nation which may happen to enter its
ports or territorial waters. The duty of protection, and the expediency of resorting to
special precautionary measures, upon the occasion of a public armed vessel entering even
-
70 BEFORE THE SPANISH TKEATY CLAIMS COMMISSION.
tnands of citizens of the United States against Spain which had been
presented by the United States to Spain prior to the execution of the
treaty. This is utterly untenable, because the relinquishment clause was
made as wide as possible. It included "all claims for indemnity,
national and individual, of every kind,"* and that necessarily includes
all claims and demands whether presented or not. In fact, the fallacy
of the Government's position is clearly d< monstrated by the fact that the
relinquishment included claims that "may have arisen since the begin-
ning of the late insurrection in Cuba and prior to the exchange of
ratifications of the present treaty." It was manifestly impossible to
have meant presented claims when the words " mini have arisen " were
used as to claims prior to the signature of the treaty, and the relinquish-
ment included claims which might pnssihly have arisen in the future
period of indefinite length which necessarily ensued before the treaty
could be ratified by the Senate and the ratifications formally exchanged,
an event which did not actually occur until four months thereafter.
Counsel making the closing argument lor the Government denied
that rights of citizens for indemnity were claims within the meaning of
the relinquishment clause of the treaty until taken up by the Cnited
States Government ami presented against Spain directly or by a sample
case, or by implication. \
The definition of the word " claims " is too well known to require
any elaborate argument on the part ot the claimants to refute the Gov-
ernment's proposition. The relinquishment was of claims of every kind,
the assumption or agreement to adjudicate and settle related to every
claim relinquished, the jurisdiction of this Court extends over all claims
assumed. Thai is, the relinquishment clause as against Spain, the as-
sumption clause as against the United States, and the clause conferring
jurisdiction on this Court are all co-extensive, each, with the other, and
no hair-splitting distinctions can deprive a citizen having a just claim
a friendly harbor, are suggested by the fact that the crew are 1 1 ■ > t only strangers to the
port, l>ut are members of a different nationality, and thua occupy a very different relation
from that of ordinary aliens; in the ease of the Maine, a resort to such preventive
measures was not only sanctioned by the rules of international law, but required by
express treaty stipulations, and strongly suggested by the strained relations existing
between the United Slates and Spain." [The article concludes with the second quotation in
the text.] (The Elements of International Law. Bj George B. Davis, New and devised
Edition, 1900, pp. 77-80.)
' For Article VII. in full, see note on p. •>, ante, of this brief.
\ The following colloquy occurred during the closing argument as appears from the
printed argument of Mr. Russell (pp. 35, 36):
Mr. Chandler. Well, this section [Art. VII. ol the Treaty] includes individual claims
of every kind.
Mr. RUSSELL, There may be a right and no claim, a claim and no right.
Mr. Chandler. Tell us what the rights are thai an- not claims.
Mr. Russell. The rights that are not claims arc the rights that have not been turned
into claims and made by the Government in some way, by implication or otherwise.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 71
against Spain, no matter in what condition it was on December loth,
1898, from having the same adjudicated by this Court and the United
States Government charged therewith.
The claimants do not consider that there is any basis whatever to the
Government's contention that it can avoid payment of just claims of its
citizens because it tailed to properly present them or include them
specifically in the relinquishment; they do claim that the Maine claims
lnnl been presented not only by implication which, Mr. Russell admits
would be sufficient, but directly, to the Spanish Government, and repara-
tion had been demanded therefor, and this will be demonstrated by ex-
tracts from the correspondence between thee ecutive department of the
Government and the Spanish Government, which are quoted in the next
point.* In this point, however, it will be shown that even if the Maine
claims had never been formally, or even by implication, accepted
by the United States and presented to Spain, they would still be. as
they undoubtedly are, included in the relinquishment, assumption and
jurisdictional clauses of the treaty, and the act creating this com-
mission.
This Court will remember that the secretary and counsel of the
American Commissioners in Paris was Mr. John Bassett Moore, whose
knowledge of the form of and terms used in claims conventions prob-
ably exceeds that of any other person. Not only every claims conven-
tion made by the United States, but many made by foreign powers be-
tween each other for the purpose of releasing claims have been carefully
studied and commented upon by him in his great work on international
arbitration. The general presumption, therefore, that plenipotentiaries
mean what they say and say what they mean in mutually releasing
their respective Governments from claims national and individual of
every kind is strengthened by the fact that in this particular instance
the protocols show that the exact wording of the articles was left to the
Secretaries-General,! one of whom was Mr. Moore, who could not
possibly have used words which were not intended to exactly express the
extent ol the mutual releases
Notwithstanding the elaborate argument made by the counsel
closing the case tor the Government, it lias been well established
that claims which had not been formally presented by the asking
Government on behalf of its citizens to the Government upon
whom the demand is made, are not excluded from the releases
contained in claims conventions, or from the .jurisdiction ol a
tribunal to which claims are referred lor arbitration.
The case of Aspin\pall vs. Venezuela has already been referred to at
some length, in which it was decided that claims ex contractu could be
considered by an arbitration tribunal created by the Convention between
- See page 75 el seg., post, of this brief.
f See Doc. No. 6i, Treaty with Spain, Protocol No. 19, p, 230,
72 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
the United States and Venezuela of 1889, although it was contended
that the correspondence related solely to claims arising ex delictu*
The commissioner who wrote the opinion in that case collected nu-
merous definitions of the word "claims," which include nut only de-
mands, but the right to claim or demand; the matter is summed up by
the expression: "Claim is the generic term implied in the legislation of
the United. States to express every form and character of demand that
one can urge against another," and the opinion adds that it would seem
quite superfluous to cite particular statutes or authorities on this sub-
ject^
Had it been intended, however, i>\ the plenipotentiaries in Paris to
exclude either from the relinquishment or the assumption clauses of
Article VI f. claims which up to that time had been presented, the same
form would have been used to express their intention as has customarily
been used in cjaims conventions which have been confined to a specific
(dass of claims. J and the fact that Mr. Moore hail all of these treaties lie-
fore him at the time is sufficient evidence that the intention of the
* See pp. 13 • / »r/, ante, this brief.
f Moore's International Arbitration, pp. 1022 et seg.
I Tin convention for the settlement of claims with Peru of 1 S63 (5 Moore's Interna-
tional Arbitration, 4786) provides that all claims not yet settle. 1 between the two (iovern-
inciits. " and statement of which, soliciting the interposition of either Government, may.
previously lo the exchange of the ratification of llii- convention, have been filed in the
Depai'tment of Slate at Washington or the Department of Foreign Affairs at Lima, shall
be referred to a mixed commission," die.
The convention for the settlement of claims with Peru of 1800(5 Moore's Interna-
tional Arbitration, 1787) provides that all claims, Ac. " which may have been presented
to either Government for its interposition since the sittings of the said mixed commission,
and which remain yet unsettled, as well as any other claims which maybe presented
within the time specified in Article III. hereinafter, shall be referred," Ac.
The convention for il ttlement of claims with American citizens made with Por-
tugal in is.M i ■. Moore's International Arbitration, 4791) provides that " the indemnities
which Poitugal promises to pay, or cause to be paid, for all the claims presented pre
vious to the 6th day of July, 1850, on behalf of American citizens, by the Government of
the United states (with the exception of that of the General Armstrong) are fixed at
191,727," <fcc.
The convention for the settlement of claims with Venezuela of 1867 (5 Moore's Inter-
national Arbitration, 4808) provides that "all claims on the part of corporations, com-
panies or individuals, citizens of the United Slates, upon the Government of Venezuela, and
which may have been presented to their Government, or to its legation al Caracas, shall
bo submitted," 4c.
The claim- convention with Venezuela of 1839(5 Moore's International Arbitration,
p. 4810) provides that "all claims, 4c, which ma) have I a presented to their Govern-
ment, or to its legation at Caracas, before the first day of August, IsoS, and which by the
term- of the aforesaid convention of April 25th, 1866, were proper to be presented lo the
nii\ -,1 commission organized under said convention shall be submitted," *fec.
The convention with Mexico for the adjustment of claims of 18o9 (5 Moore's Intel na-
tional Arbitration, p. 477 1 ) provided that "all claims of citizens of the United Slates
upon the Mexican Government, statements of which, soliciting the interposition ot the
Government of the United States, have been presented to the Department of State or to
ARGUMENT OF CHAS. H. BtJTLER IN MAINE CASES. ?'l
American Commissioners was to cover every possible right or claim of
every kind which either had been, or could be, urged by one government
against the other. The correspondence between the State Department
and the Spanish Government, through Minister Woodford, and the snb-
sequent correspondence prior to the declaration of war; the letter of
Secretary Day to the DukeD'Almodovar del Rio, of July BOtb, 1898; and
the correspondence between Mr. Day, as President of the American Com-
missioners in Paris, and M. Rios, one of the Spanish Commission, are all
set forth at length under the next point,* and will not be referred to at
length here, except to say that the correspondence before the war
contained a direct charge that Spain had failed to afford proper
protection to our ships and sailors while under her protection
in Havana Harbor, and that the United States expected Spain to
make the reparation therefor that the government of one civilized
nation should make to another under such circumstances, and that the
letters of Secretary Daj referred to claims of our citizens for injuries
to person and property, and that therefore the demand was complete
and the claims could be considered as presented; that correspondence is
referred to under this point simply to show that it was the intention of
the Commissioners, both American and Spanish, to so mutually release
each Government from claims of the other, both national and on account
of its citizens, that no claim could ever be made after the ratification of
this treaty by one Government upon the other for any cause whatso-
ever which was based upon a matter happening prior to the ex-
change of the ratifications. If the ingenious argument of the counsel
for the Government is correct, and the relinquishment clause does not
rover what he calls abstract rights or unpresented claims, then the
United States is in the position,,!' not having been released by Spain
from claims which had not been presented to the United States, and Spain
is not released from Mich "abstract rights " of United States citizens as
their Government may now see fit totakeupand present to Spain cle novo
and demand additional indemnity to that already received, and which
Spain was certainly justified in believing was in full for all possible
the diplomatic agent of the United States at Mexico until the signature of this convention
shall be referred," &c.
The convention with Mexico for the settlement of claims of 1868 (5 Moore's Inter-
national Arbitration, 4773) limits the claims to those arising from injuries to persons or
property * * * which may have been presented to either Government for its inter-
position with the other since the signature of the treaty of Guadalupe Hidalgo between
the United States and the Mexican Republic of the -'d of February, 1848, and which
will remain unsettled, as well as any other such claims which may be presented within
the time hereafter specified, shall be referred," (fee.
These instances might be indefinitely multiplied, but enough have been given to
show that where any limitation is made as to the prior presentation of claims, it is
expressly specified in the treaty and the jurisdiction of the tribunal over claims is limited
only by the terms of the treaty.
* See pp. 75 et seq. of Ibis brief.
74 BEFORE THE Sl'ANISH TREATY CLAIMS COMMISSION-.
and contingent liabilities as well for those which had been actually pre-
sented prior to the declaration of war.
The provisions of the Act of March 12. 1901, creating- this Com-
mission, indicate that Congress understood that claims had heen
assumed by the treaty and would be adjudicated by tliis Court
which had not been presented by the Government of the United
States to Spain. As has already been stated, the relinquishment and
assumption clauses of the treaty and the jurisdictional clause of the Act
are co-extensive each with the other. Had Congress considered that
only such claims as had actually been presented through the State De-
partment to the Spanish Government had been assumed, it would un-
doubtedly have limited the jurisdiction of the Court to such claims.
[nstead, however, oi simply providing that the claims in the Department
of State should be transmitted by the Secretary to this Commission, it
expressly provided that claims could be filed de novo by the claimants for
a period of -i\ months alter the first session of the Commission and
created no limitation m regard thereto based upon prior presentation.*
All the provisions of the Act relating to the condition of the claim.
the filing thereof and the limitations as to the presentation, are contained
in the extrai ts from the Act which are quoted in the note, and suivh it
is not possible to deduce from those few clear-out sentences any support
whatever for the Attorney-General's proposition that the jurisdiction of
this Court, the assumption of the claims by the United States or relin-
quishment thereof as ugainsl Spain was in any way limited by the prior
presentation thereof.
* Sec. 9 of Chap. 800, 31 U. S. St. I... p. 977, which is Llie act appointing this Com-
mission, provides: "that every claim prosecuted before said Commission shall be pre-
sented by petition setting forth concisely and without unnecessary repetition the facts
upon which said claim is based, together with an itemized schedule Betting forth all dam
ages claimed. Said petition shall also slate the full name, the residence and the citizen-
ship of the claimant, and the amount of damages sought to be recovered, and shall pray
judgment upon the facts and law. It shall be signed by the claimant, or his attorney or
legal representative, and be verified by the affidavit of the claimant, his agent, attorney or
legal representative. It shall be tiled with the Clerk of the Commission, and the prosecu-
tion of the claim shall be deemed to have commenced at the date of such filing, All
claims shall he tiled as aforesaid within six months fr the date of the first meeting of
the Commission, and every claim not filed within such time shall be forever barred:
Provided, that the Commission may receive claims presented within six months after the
termination ol said period if the claimants shall establish to their satisfaction good reasons
for not presenting the same earlier."
Section B oi the \ei pro> ides " thai all rep irts, records, proceedings and ether docu
me nls now on file or of record in the Department of State, or in any ether department
certified copies tle-reof. relating to any claims prosecuted before the said Commission
under this A.i, shall be furnished to the Commission upon its order made of its own mo-
tion, or at the request ol the claim int, or of the attorney representing the United Stales
before -aid Commission. The first section of the A.cl provi les thai " this Court shall have
jurisdiction to receive, examine and adjudicate all claims of citizens of the United States
against Spain which the United States agreed to adjudicate and settle by the seventh
article of the treaty concluded between the United States and Spain on the loth da\ ol
,,,,,- 1898, li shall adjudicate said claims according to the merits of the several
cases, the principles of equity and of international law.'
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 75
NINETEENTH. -The protocols and records
of the American and Spanish Commissioners
negotiating: the Treaty of Peace and the cor
respondence between the State Department
and the Spanish Government clearly indicate
that the claims of the petitioners were in-
cluded in the assumption clause of Article VII,
and in the adjudication clause of the same
article, and that a formal demand for the pay-
ment of these claims had been made on Spain
prior to the declaration of war.
As stated in the preceding point, counsel for the Governmenl have
, on tended thai the Maine claims were expressly excluded from the assump-
tion clause of Article VII. of the Treaty and also from the adjudication
clause at the end of the same article; they have attempted to sustain this
position by referring to the protocols of the Commission and the letter
of Secretarj Day of July 30, 1808, to the Due d'Almodovar del Rio; and
they also claim that the expressions used in the protocols (which will lie
hereafter quoted at length) should be construed by this Court as a direct
promise to the Spanish Government thai there would be no subsequent
adjudication between the United States and its own citizens of claims
involving the destruction of the Maine and its causes. In fact, the
closing of the final argument of the Government counsel was an
earnest plea on behalf of the Spanish Government that this Court,
constituted by the United States Government tinder the adjudication
clause of Article VII. would not violate the good faith of the American
nation by attempting to ascertain the rights of American citizens for fear
thai it might offend and disgrace the Spanish Government.
So far from protocols of the Peace Commission and the correspond-
ence between the Department ol State and the Spanish Government,
sustaining the position of the Attorney-General, the only reasonable con-
struction that can be placed upon them thereon, is that the United States
assumed all claims of its citizens againsl Spain, and stated to the Spanish
Commissioners thai the matter as between the United States and
Spain was closed, and that as between itself and its own
citizens tbe United States would adjudicate all claims, to
the exclusion of Spain, and in the manner in which it is now
adjudicating- them, to wit, by the creation of this Commission; this
construction necessarily clothes this Court with jurisdiction to hear and
determine these claims; and if it has jurisdiction to consider the claims
at all it must have lull power to adjudicate them upon the merits, as it
cannot be conceived that a Court directed to adjudicate claims upon
their " merits and the principles of equity and' of international law.''
could possibly take jurisdiction of any cases and be limited as to the
7li BEFORE THE SPANISH TKKATY CLAIMS COMMISSION.
extent of its investigation by any fear of wounding the sensibilities of
a friendly nation.
When the claimants' counsel called attention in his opening argu-
ment to that portion of the Government's brief which referred to the
inadvisability of this Court investigating this question lor fear of offend-
ing ••the sensibilities of a friendly nation." the President, of the Court
informed him thai u would he unnecessary to continue the argument
upon that point, and relying upon that suggestion counsel passed at once
from that branch of the subject ami he does not intend to discuss it any
further in this brief, hut he will confine the argument to the effeel of the
correspondence and protocols referred to by the Attorney-General.
In order to fully appreciate the effect of the ••protocols" of the
Peace Commission which have been referred to bj the Attornpy-General,
and which will be quoted in full under this point, it is necessary to trace
the history of the Main, claims from their inception, so far as the rela-
tions of the United Stales and Spain in regard thereto are concerned.
The explosion occurred on February L5, 1898. During the next few
days several messages of sympathy were received from the Spanish Gov-
ernment at Madrid, and also from officers of the Spanish Government in
Cuba, all of which were properly acknowledged by the Department of
State: in none of the messages was there any admission of responsibility
for the act, nor in the acknowledgments thereof by the United States
was there any expression which might he construed as relieving Spain of
any responsibility for the act.
On March 20th, while the .Naval Court of Inquiry was holding its
sessions, the President, relying upon the fact that the burden of proof
rested upon Spain to disprove her responsibility for the destruction of
the Maine, as he was clearly entitled to do* communicated to .Mr. Wood-
ford, through Secretary Sherman, that the Naval Board would make a
unanimous report that the Maine w,i* blown up by a sub-marine mine,
and that the matter could he peacefully settled if full reparation were
promptly made, f
Letters, despatches and instructions passed in quick succession^ be-
tween Washington and .Madrid, all of which contained imperative
* See authorities collated on this subject under Seventeenth Point, ante.
f "Maine loss may be peacefully ettled if full reparation is promptly made, such as
the most civilized nation would offer. But there remain general conditions in Cuba
which cannot he longer endured, ami whirl) will demand action on our part, unless Spain
restores honorable peace which will stop starvation ol i pie and give them opportunity
to take care of themselves, and restore commerce now wholly lost. April 15th is none
ton early date lor accomplishment of these purposes. Relations will he much influenced
by attitude of Spanish Government in Maim matter, bul general conditions must not be
lust sight of. [t is proper that you should know that, unless events otherwise indicate,
the President, having exhausted diplomatic agencies to secure peace in Cuba, will lay the
whole question before Congress " (t\ s. For. Bel., 1898, pp. 692, 693).
J On March 22, 1898, Mr. Woodford notified the President that he had seen Minister
Morel that morning and had a conversation with him in which lie had stated to him that
ARGUMENT OF ('HAS. H. BUTLER IN MAINE CASKS. i ,
demands for separation, until at last on March 26th Secretary Sherman
telegraphed to Minister Wood ford a long summary of the report of the
Maine, in the last sentences of which he distinctly stated the position
of the [Jnited States Government as follows:
"Upon the facts as thus disclosed a grave responsibility
appears to rest upon the Spanish Government. The Maine, on a
peaceful errand, anil with the knowledge and consent ot that
Government, entered the harbor of Habana, relying upon the
security and protection ot a friendly port. Confessedly she still
remained, as to what took place on board, under the jurisdiction
ot her own Government ; .vet the control of the harbor remained
in tin- Spanish Government, which, as the sovereign of the place,
was hound to render protection to persons and property there,
and especially to the public ship and the sailors of a friendly
power."*
" beyond and above the destruction of the Ma'mn, unless some satisfactory agreement is
peached within a very few days, which will assure immediate and honorable peace in
Cuba, the President must at once submit the whole question of the relations between the
United Statei and Spain, including the matter of the Maim . to the decision of Congress."
(U. S Fur. Rel., 1898, p. 696 i
On March 25 Mr. Woodford wrote to Mr. Sherman an account of his interview of
March 28d in which he repeated the si at en lent which has jusl been quoted and staled that
Minister Gullon had replied that
" the Spanish Government had not received the text of the Spanish report upon the ex-
plosion of the Maine, and in the absence uf any statement by myself [Mr. Woodford] as
to the character of the American report he could not discuss the matter, but that the
Spani-h Government would certainly do whatever right and justice should require when
his Government should have full knowledge of all "the facts'" (U. S. For. Rel . 1898, p.
698 i
After referring to other subjects, Mr. W Iford said that he closed the interview
"by expressing my belief that the present Spanish Government would deal justly and
honorably in regard to the destruction of the I". S S. Maine, in the harbor of Havana,
whenever I should be instructed to present that matter for diplomatic action, but that
now, beyond and above the destruction of the Maine, anil even beyond and above all
questions of the destruction of American property interests in Cuba, the great and con-
trolling questions of humanity and civilization require that permanent and immediate
peace be established and enforced in the Island of Cuba,
'• Minister Gullon replied to me, through Minister Moret as interpreter, that Spain
might be relied upon to do what is right and just and honorable in the matter of the
Maine." (U. S. For. Rel., 1898, pp. 699-700.)
At a subsequent point in the letter, Mr. Woodford said:
"The Spanish Minister was very earnest in his desire that the report of the investi-
gating commission on the subject of "the Maine should not be sent to Congress, but should
be held as a subject of diplomatic adjustment between the two Governments. He assured
me that Spain would do in this matter whatever should be just and right." (U. S. For.
Rel.. 1898, p 701.1
On March 25, Mr Woodford sent the President a long telegram, the first sentence of
which was as follows :
'•Official interview this afternoon (Friday) with Minister of Foreign Affairs. He
assures me positively that Spain will do ail the highest honor and justice require in the
matter of the Maine." (U. S. For. Rel., 1S98, p 703.)
* That part of Secretary Sherman's telegram relating to Spain's responsibility is:
" In conclusion, Court rinds that loss of Maine was not due to any fault or negligence
of any of the officers or crew, but to explosion of a submarine mine, which cause, 1 partial
explosion of two or more of the forward magazines. No evidence, however, obtained fix-
ing responsibility on any person or persons. ' " ' (Extract above then follows.)
" The Government of the United States has not failed to receive with due apprecia-
7R BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
The Spanish Government practically accepted these demands and
the United Slates was informed through the proper diplomatic channels
that the master would be adjusted in some way honorable and favorable
to both nations, and that Spam would arbitrate the matter.*
.Meanwhile correspondence took place between Senor Polo de lier-
nabe, the Spanish Ministeral Washington, and Mr. Day, enclosing copies
of reports both of the Spanish Investigating Committee and the United
States Naval Board of Enquiry. f Matters were still in this position
when, on April llth, President McKinley transmitted his message to
Congress in regard to the condition of affairs in Cuba, in which he re-
ferred to the Maine in the language which has already been quoted at
so Iengih, pages 26 et seq., ante, as well as to the propositions which
had Keen made in regard to arbitration by Spain, and also declared that
the destruction of the vessel was a patent and impressive proof of a state
tion the expressions of sympathy by the Government of the Queen Regent with the
1'nited States in the loss of its ship and sailors. This fact can only increase its regret that
the circumstances of the case, as disclosed by the report of the board of inquiry, are such as
to require of the Spanish Government such action as is due when- the sovereign rights of
one friendly nation have been assailed within the jurisdiction of another. The President
does not permit himself to doubt that the sense of justice of the Spanish nation will dictate
a course of action suggested by the friendly relations of the two Governments. You will
communicate the contents of this instruction to the Minister of State and give him para-
phrase if desired "(I". S. For. Rel., 1898, pp. 1041,1042).
* On March 28th Minister Woodford, at an interview with the Spanish Minister of
Foreign Affairs, communicated Secretary Sherman's views to him leaving a statement
couched in exactly the same words as contained in the dispatch, and on March 28th so
informed the Secretary of State (U.S. For. Rel., 1898, pp. 1040-1044). On March 29th
he addressed a letter to the President in which he stated that he had read the summary
just referred lo and left an official note giving such summary with (he Minister of Foreign
Affairs, and that on the following day In- had had an interview with President Sagasta
ami Senor Moret and Senor Gullon, and that after stating the position of this Government
he had awited President Sagasta's reply who had
" mentioned the loss ol the Maine, and expressed his appreciation of the manner in which
you [the President] had presented the Bubject to Congress, and added that he believed
your method ol dealing with ilii- question would enable the two Governments to examine
and adjust the matter in soiue way honorable and fair to both nations " (I *. S. Koi Rel.,
1898, p. 719).
Another account of this interview, in which the same is repeated, was transmitted
by Mr. Woodford to Mr. Day (IT. S. For. Rel., 1898, p. 7'2S).
Meanwhile, on March 28th, President McKinley transmitted to Coneress the official
reporl of the Maine Board of Inquiry. He closed his message by referring to the fact
that he had communicated the contents of the reporl and the views of this Government in
regard thereto to the Queen Regent.
(in April 1st Mr. Woodford wrote to the President stating that the propositions
made by (he Spanish Government in regard to affairs in Cuba went as far as they could
possibly go, hut he -aid they had already yielded one or two points, including one as
follows;
•• First, they arc willing (o arbitrate (he Maine matter. Some days ago they talked
tight if we should even suggest thai they were responsible for the loss of the Main* " I V.
S. For. bet.. 1898, p. 728).
f U. S. For. Rel., 1898. pp. 1046 et teg.
ARGUMENT OF CHAS. H. BUTLER IN MAINE PASES. 79
of things in Cuba that was intolerable and such that the Spanish Gov-
ernment "cannot assure safety and security to a vessel of the American
navy in the harbor of Havana on an errand of peace, and rightfully
there.'"* The message was referred to the Committee on Foreign Rela-
tions of the United States Senate, winch had already other matters
relating to the explosion of the Maine before it, in regard to which it had
taken considerable testimony. In fact, tie- Senate through this com-
mittee, conducted an independent investigation mm the causes of the
destruction of the Maine, and the resolutions which were reported by it
on April 13th and subsequently adopted on April SOthf were not based
exclusively on the report of the .Naval < ourt as transmitted by the
President, but also upon competent testimony taken by the committee,
and its findings^ are entitled to the greatest weight and consideration.
The report of the Committee was published, printed and widely dis-
tributed, and while there is no evidence that, the entire report was for-
mally transmitted to the Spanish Government, there was no injunction
of secrecy placed thereon, and it is now a matter of history that the re-
port was published far and wide in the public press, both American ami
foreign, and was accessible to even person who desired to obtain a copy
thereof, and the presumption must be, t hen- fore, t hat t In' Spanish Govern-
ment was fully aware of tin' report and everything that was contained
therein. All other documents referred to under this point were directly
transmitted to the Spanish Government or proceeded therefrom.
On April '.'nth the resolutions recommended m the report wereadopted
and were transmitted to the Spanish Government, which regarded the
passage thereof as an act of hostility, ami not only refused to comply
therewith, but severed diplomatic relations in a manner which Mr.
McKinlev declared in a message transmitted on April ■.'•">. 1898, to Con-
gress " accompanies an existing state of war between sovereign powers."
This was immediately followed by the Act of April 25, L898, declaring
war to have existed against the Kingdom of Spain since April 21, L898.§
The foregoing recital of facts contains, as counsel believes, all the
published correspondence and public enactments, and of which this
Court will take judicial knowledge, relating to the- destruction of the
battleship Maine so far as diplomatic illations between this country and
Spain are concerned prior to the declaration of war. It shows thai at
* U. S. For. Rel„ 1898, [>. 758.
f These resolutions appear in full on p. 29, mile, of this brief.
\ " It is the opinion of your committee, having considered the testimony submitted
to the board ol inquiry, in connection with further testimony taken by the committee, net
with the relevant and established facts presented by the events of the last three years,
that the destruction of the Maine was compassed either by the official act of the
Spanish authorities or was made possible by a negligence on their part so willing ana gross
as to be equivalent in culpability to positive criminal action" (Sen. Rep. No. 880, 55th
Congress, 2d Session, p. v.).
§ 30 U. S. Stat, at L., p. 36, and see act quoted in lull p. 30, ante, of this brief.
80 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
the commencement of the war the Government of the United States
had formally, both by executive and legislative action, declared that
Spain had not ••assured safety to a vessel of the American Navy in the
harbor of Havana while on a mission of peace and rightfully there;"
that the destruction of the vessel was "compassed either by the offi-
cial act of the Spanish authorities or was made possible by negli-
gence on their part so willing and gross as to lie equivalent in
culpability to positive criminal action," and that through the
regular diplomatic channels of the Department of State and our
Minister to Spain the United States had formally expressed to the
Spanish Government a demand, couched in regular diplomatic lan-
guage, that such proper reparation should he made as was due from one
civilized nation to another under the circumstances. The claimants
therefore contend that at the commencement of war, and at the time of
the peace negotiations in Paris, all the formalities necessary to transform
any abstract right which they might have had to request the Government
of the United States to obtain indemnity for them from the Spanish Gov-
ernment had been transformed by executive and legislative action into a
recognition of their claims and a formal demand upon Spain to make
adequate reparation therefor.
From April -.'1st until July 30th, during the period of active hostili-
ties between Spain and the United States, no diplomatic relations existed
between the two countries, and there was therefore no further correspond-
ence in regard to these claims and the status was exactly the same on
duly 30th as it was on April 20tb, J s(. i-t.
When Spain, thoroughly realizing the hopelessness of the contest,
requested a cessation of hostilities, and instituted negotiations of peace,
the Due d'Alraodovar del Rio, on behalf of the Queen Regent, and
through the French Ambassador, made the first advances in July.
1898, .Mr. Day responded on July 30th, 1898, in a letter setting
forth the terms upon which the President of the United States was
willing to make peace with Spain, and in which, without making
specific reference to the claim of any citizen or of any classes "\'
claims of citizens of the United States, he declared that claims of our
citizens for injuries to their persons and property during the late insur-
rection in Cuba must be provided for by the cession of Porto Pico
and other territory.* The expression used was broad enough to cover
every claim which the United States might have put forward at that time
against the Government of Spain, and if Secretary Day had appended to
* " The President, desirous ot exhibiting signal generosity, will not now put forth any
demand for pecuniary indemnity. Nevertheless, he cannot be insensible to the losses and
expenses of the United Slates incident to the war, or to the claims of our citizens for
injuries to their persons ami property during the late insurrection in Cuba, He must
therefore require the cession to the United States, and the evacuation by Spain of the
islands of Porto Rico and other islands now under the sovereignty of Spain in the West
Indies, and also the cession of an island in the Ladronea to be selected by the United
States" (P. S. For. lte-1., 1898, 821).
ARGUMENT OF (I! AS. U. IJUTLEK IN MAINE CASES.
SI
the letter n schedule of the claims which lie intended to cover by his general
expression, it would not only have hern eminently proper for him to have
included the claims of the petitioners arising from the destruction of
the Maine therein, but it would have been eminently improper for him
to have excluded them therefrom; there is nothing whatever in the
language used which justifies the statement made by the counsel who so
ably closed the case on behalf of the Government that the evident intent
of Secretary Day's letter was to positively exclude the claims arising
from the destruction of the Maine.
Nothing further appears to have been said about the Maim-, or any
other claims until after the peace protocol had been signed, and the Com-
missioners were negotiating the treaty of peace in Paris, when a corre-
spondence took place between Mr. Day and Mr. Rios, one of the Spanish
Commissioners, in which Mr. Day assured him that all claims. National
and individual, were relinquished, and that citizens of the United States
would look to their own Government for indemnity for the claims
relinquished by the treaty.*
On December 5th, lS'.is, at a meeting of the Commissioners, the
articles of the treaty from I. to VIII. were read and agreed upon, subject
* M. Rios, on November 22d, addressed a letter to Mr Hay. who was then President
of the American Commission, in which he said:
" The Secretary of state having stated in bis note of .Inly 30th last, that the cession
by Spain of the Island of Porto Rico and the other islands now under Spanish sover-
eignty in the West Indies, as well as one of the Ladrones, was to l>e as compensation for
the losses ami expenses of the United States during the war, ami of the damages suffered
by their citizens during the last insurrection in Cuba, what claims does the proposition
refer to as requiring that there shall he inserted in the treaty a provision for the mutual
relinquishment of all claims, individual ami national, that have arisen from the beginning
of the last insurrection in Cuba to the conclusion of the treaty of peace? ' (Message of
President transmitting treaty of peace to Senate, Sen. Doc, 56th Cong,, 3 Sess., No. 62
Part I, January 4, 1899, p. 'i!7).
On the following day Mr. Day replied, ami after restating M Rios' question, said:
" While the idea doubtless was conveyed in the note of the Secretary of State of the
United States of the 30th of July list, that the cession of ' Porto Rico and other islands
now under the sovereignty of Spain in the Wesl Indies, and also the cession of an island
in the Ladrones, to be selected by the United states' was required on grounds of
indemnity and that, 'on similar grounds the United States is entitled to occupy and will
hold the city, bay, and harbor of Manila, pending the conclusion of a treaty ol p. i ice
which shall determine the control, disposition and government, of the Philippines,' no
definition has as yet been given of the extent or precise effect of the cessions in that
regard. The American Commissioners therefore propose, in connection with the cessions
of territory, ' the mutual relinquishment of all the claims for indemnity, national and indi-
vidual, of every kind, of the United States against Spain and of Spain against the United
States, that may have arisen since the beginning of the late insurrection in Cuba and
prior to the conclusion of a treaty of peace.'
" And I may add that this offer is made by the American Commissioners in full view
of the fact that the citizens of the United States, having claims that come within the fore-
going relinquishment, will, on the strength thereof, apply to their own Government for
indemnity." (Doc, No. 62, cited supra, 219.)
82 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
to modifications as to form, upon which the Secretaries were to agree.*
The then language of this article was practically the same as the first
clause of the article which was finally adopted and incorporated into the
treaty as concluded and ratified, the second clause as to adjudication of
claims by the United States of the article as it now is included in the
treaty was not included in thefirst draft. On December 6th, as appears
by protocol No. 20 of the Peace Commissioners, articles were presented
by the American and Spanish Commissions each to the other, hut it is
evident from the final adoption of the first eight articles on the previous
day that these were, as stated in the protocol of that dayf "Additional
Articles," and were not intended in any way to supersede the article
already adopted, by which both Governments had mutually relinquished
all claims against the other.
The article which the Spanish Commissioners wished to have inserted
in the treaty of peace in regard to the Maine provided for the appoint-
ment of an international commission, consisting of seven experts " to he
entrusted with investigating the causes of and responsibility for the
Mni in catastrophe " and which, after prescribing the method ot appoint-
ment of (lie Commissioners and that each Government should pay one-
half of the expenses, provided that : " In the event of the Spanish Gov-
ernment being found responsible, it shall pay to the United States its
share of the expenses of the Commission. Further, a Spanish war ship
must go to New York and salute the flag of the United States. "J
It also appears by protocol No. 20 that this article was rejected by the
American Commissioners, who stated that they considered the case as
closed; but the President of the Spanish Commission stated that he
* "The reading' in English anil Spanish of tlie articles of the treat}- from the first to
eighth, inclusive, was then proceeded with, and they were approved bv both Commissions,
which declared them to be final save as in mere modifications of form, upon which the
Secretaries-General might endeavor to agree." (Sen. Doc. No. 62. p. 230.)
The article containing the relinquishment of claims, which was then numbered VI.
but afterwards became No. VII. by a re-arrangement of articles included in those read,
was as fellows :
" Article VI. —The United States and Spain, in consideration of the provisions of this
treaty, hereby mutually relinquish all claims of indemnity, national and individual, of
every kind (including all claims for indemnity for the cost of the war), of either Government
or of its citizens or subjects, against the other Government, that may have arisen 9ince
the beginning of the late insurrection in Cuba and prior to the ratification of the present
treaty." (Sen, Doe No. 62, p. 234.)
| Sen. Doc. 62, p. 242. _
{The proposed " Additional Article " then provided that:
"If, on the contrary, the Commission shall decide that Spain is not responsible,
attributing the catastrophe to an accident inside the vessel or other fortuitous cause, the
Government of tie- I rnited States shall pay to Spain its share of the expenses of the Com-
mission, Moreover, the President of the United States shall report the arbitral award to
the Congress of the United States, setting forth in the official message the righteous course
of the Spanish nation." (Sen. Doe. No. < J J . 248.)
ARGUMENT OF CHAS. H. BUTLKK IN" MAINE CASKS. 83
was unable to consider it as closed since the President of the United
States had referred to it in his message to < longress on the previous Mon-
day, to which the President of the American Commission replied that
they had not received a copy of the message ami therefore had not
read it, to which the President of the Spanish Commission replied that
he had in his possession an extract from it which he could produce, but the
American President answered that the American Commissioners did not
care to continue discussion of the subject on the present occasion. This
closed the incident for the day, and other additional articles were then
proposed by the Spanish Government, some of which were rejected
and some of which were accepted.* On December 8th, the meeting of
December 7th having been postponed to that date, the protocol of the
preceding session was read and approved, and the Spanish Commission-
ers then observed! that although the American Commissioners had
rejected the article presented by them relating to the Maine, they con-
sidered it their duty to insist upon this question being submitted to
arbitration. The American Commissioners answered referring to the
observations made by them on this subject of the last session. \
* Sen. Hoc. No. 62, pp. 243, J4 4.
I Sen. Doc. No. 62, p. 250.
{ To this tht' Spanish Commissioners, who seemed unable to understand the situation,
and under the impression ilia' by constant insisting they might obtain some concession,
replied that Bince
" this new proposal lor arbitration was also rejected they would ask the American Com-
missioners to be pleased to propose s<>mc method of clearing up the matter of the Maine,
and the responsibility growing out of it, bo that the unjust prejudice against Spain shown
in the United States by reason of an incomplete investigation might disappear, and the
resentment of Spain because the uprightness "I her authorities or subjects, ami the
capacity of her administration to guarantee tie- safety in her ports of vessels of a nation
with which she was at peace, had been placed in doubt, might also be blotted out.''
The American Commissioners replied to this that they had no method to propose
(Sen. Doc. Xo. 62, p. 251), and this is all that transpired verbally between the ('ononis
sioners upon that day as appears in protocol No. 21, but as an annex to the protocol a
memorandum of the Spanish Commissioners was submitted in which tic Commissioners
explained as the reason why they had insisted upon the arbitration the fact that the
President had in his message of December 6lh referred to the explosion of the Man,, as
suspicious, and the memorandum ended with the following remarkable statement:
"The Spanish Commission, therefore, cannot yield to such a refusal, and solemnly
records its protest against it, setting forth that in the future it shall never be lawful for
those who oppose the investigating of the cause of that horrible disaster, to impute,
opealy or covertly, responsibility of any kind therefor to the noble Spanish nation, or its
authorities" (Sen. Hoc Xo. 62, p 260.)
On the following day after an exchange of courtesies, the treaty was prepared and
signed, and Mr. .1. B. Moore, Secretary of tic Commission, transmitted a reply to the
memorandum of the Spanish Commissioners just referred to, in which lie said :
" Respecting the observation in the memorandum of the Spanish Commission upon
the last message of the President of the United States, wherein he refers to the disaster
to the battleship Maine, the American Commissioners feel obliged to decline to enter upon
<sl BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
Meanwhile it appears that the treaty had been redrafted by the Sec-
retaries, thai the article in regard to the relinquishment of claims had
bei n revised so as to read as finally adopted,* including the final clause
as to the adjudication by the United States of the claims relinquished.
The only possible conclusion which ran be drawn from the corre-
spondence between the American and Spanish Commissioners and the
protocols of their conversations in regard to the Maine disaster is that
Spain requested an international adjudication of the causes of the de-
struction, and the United States refused the request; and as the Span-
ish Commissioners, in their memorandum, attempted to say that there
could be no imputation as to her fault in the absent f such arbitra-
tion, the United States Commissioners inserted in the treaty an addi-
tional clause to the effect that the United States would itsell adjudicate,
as well as settle, the claims of its citizens which had been relin-
quished in order that there might be no question as to the right of the
United States to settle with its citizens in such manner as it should see
fit, even if it required an adjudication which would necessitate an in-
vestigation of every cause connected with the claims. This contention
is borne out by the statement of Mr. Moore, referring to the well-estab-
lished precedents and practice in the history of our country. Mr. Moore
undoubtedly had in mind the Mexican case in which we made peace with
Mexico and then assumed and settled all of the claims owing to
American citizens and in regard to which there was no limitation as to
the method of investigating the cause; to the distribution of the Alabama
award m which we received from Great Britain $15,500,000 as a lump
sum, and distributed the same pursuant to the awards made by the Court
of Alabama Claims: to the treaty with Spain in 1819, by which we ac-
quired Florida and released Spain from the claims due to our citizens,
and thereupon adjudicated the claims without any limitation upon the
power regardless of how they might have arisen.
With the signature of the treaty by the Commissioners of both
Spain and the United States, the negotiations were concluded and were
merged into the treaty itself, and tin' claimants contend that the words
of the treaty as they stand in Article VII. providing for a mutual
relinquishment of all claims by both Governments, national and indi-
vidual, against the other, and for the adjudication by the United States
of the claims relinquished by its citizens, are so clear that they cannot
be changed by any interpretation, and that in the absence of any arn-
any discussion of the same, in obedience to well established precedents ami practice in the
history of tlu-ir country " (Sen Doc. No, 62, p. 262).
* "Article 7. The United States ami Spain mutually relinquish all claims for indem-
nify, national anil individual, of every kind, of either Government, or of its citizens or
subjects, against the other Government, that may have arisen since the beginning of the
late insurrection in Cuba and prior to the exchange ol ratifications of the present treaty,
including all claims tor iudemnity for the cost of the war.
" Tlie United states will adjudicate ami settle the claims of its citizens against Spain
relinquished in this article " (Sen, Doc. No. ti'J. pp. 266, 267).
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. fc>5
biguity it is unnecessary, and therefore not allowable, to resort to the
protocols of the Peace Commission or to the correspondence relating
thereto in order to obtain any different construction than that which
appears upon the face of the article. The elementary rule of law. that
all prior negotiations and correspondence are necessarily merged iuto the
instrument itself, is as applicable to treaties between nations as it is to
contracts between individuals, and. therefore, the protocols upon which
the Attorney-General spent so much time cannot in any way affect the
construction of the clause by which all the claims were relinquished
against Spain by the United Slates and assumed by that Government
as to its citizens. The complete record from the loth day of February
to the 10th day of December, I s: is, has been rehearsed under this point
in order that this Court might have before it, in a condensed and con-
secutive form, everything which related to these claims from the t •
that they first arose until the lime that thej were finally extinguished as
against Spam and assumed by (he United States.
It is not proper, however, to close this point without referring to the
argument of the counsel closing the case for the I rovernment on the oral
argument, especially in regard to his proposition that the protocols of
December 5th — December LOth of the Peace Commission in Paris are to he
construed practically into a solemn contract between the United States
and Spain, that from that time the incident should he closed nol only as
against the Spanish Government hut also between the United Statts and
its own citizens in regard to the adjudication of these claims.*
Hi- earnest appeal to this Court not to further wound the sensibilities
nf a friendly nation and not In disgrace a once powerful hut now un-
fortunate nation, might indeed have been effective before an international
tribunal had he been representing tin1 Spanish Government and the
United Slates was presenting these claims; inasmuch as his argument
was to the effect that the absolute rights of American citizens under a
treaty made on their behall by their own Government should be sub-
ordinated to tin.' "sensibilities" ofa foreign power, counsel does not
consider that it requires any refutation beyond its mere statement.
If the treaty of 1898 is to lie construed in connection with corresj d-
ence and protocols, this Court must presume that the American Com-
missioners were regarding not the ••sensibilities" of the Spanish
Government on points of honor, hut the actual vested rights and prop-
erty of American citizens. On the present occasion no interests of Spain
are at stake and therefore the presumptions need not he construed as
against a victorious power insisting upon terms in a, treaty of peace, but
in favor of those citizens who were not present and whose Governinenl
* The word " protocol" as used in treaty negotiations does nut mean agreement, as
it sometimes (.lues when the foreign offices of different governments finally dispose of a
diplomatic matter, but simply minutes ofa meeting. For this sense, see V. S. For. Re].,
1871, under fireat Britain, and proceedings of Commissioners negotiating the Treaty of
Washington uf 1871.
86 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
sacrificed their claims for its own purposes with full knowledge, as was
expressed by Secretary Day, bhat thej would look to their Government
for the adjudication and payment of the claims which were thus sacrificed
for the sake of peace and in order that no further punishment need to
be meted out to the nation which had caused these great injuries to
American citizens and against whom the claims not only existed but
had actually been presented by this Government.
TWENTIETH. This is a domestic tribunal.
Spain is not before tbe Court, and in con-
sidering- Article VII. only the rights of Amer-
ican citizens can be considered.
The closing of the argument of the Government contains a plea for
Spain and an effort is made to induce this Court to consider itself under
some obligation to the Spanish Government not to adjudicate the Maine
claims by reason of an implied promise made by the American Commission-
ers to the effect that the incident wasclosedand would never be reopened.
In the last point that matter was discussed and the correspondence
and protocols were quoted from at length to show that no such construc-
tion could possibly be placed upon the treaty or the correspondence in
regard thereto or the protocols of the Commissioners in Paris. The
counsel for the Government have argued this case as though Spain had
some interest in the amount involved which is to be paid to American
citizens. They have made arguments similar to those which might
have been made had the treaty contained a provision that in case the
amounts assumed by the Government of the United States upon adjudi-
cation amounted to over a specified stun. Spain should pay all of such
excess and that they were bound on behalf of Spain to keep the amount
below the specified figure.
Had Spain remained liable in whole or in part it might be proper at
the present time for that Government to be represented before this Com-
mission and to protest against the allowance of claims which had been
excluded from the relinquishment or the assumption clause. No such
condition exists, however, and it is absolutely immaterial to Spain
whether the United States, in adjudicating and settling these claims,
shall be obliged to pay five million dollars or fifty million dollars. Spain
has beoD forever released and the United States alone has undertaken to
adjudicate and settle the claims, citizens of the United States are the
only parties, and therefore the rules of the construction of this treaty
must be exactly as though the United States and its citizens were the
only parties to the treaty. In fact, the final clause of Article VII. of
the treaty is practically a contract or treaty between these claimants and
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 81?
the United States, and under these circumstances it must be const rued
liberally for the claimants and strictly against the United States.
If the argument of the counsel for the Government is correct and
Spain lias an interest in the amount paid these claimants, the argument
might just as well be carried to a further point, and at some subse-
quent period Spain can come in and declare that the claims had been
stated as amounting to many more millions of dollars than the Govern-
ment has finally paid upon the judgments of this Court, and demand
the difference between that total and the minimum to which the
Attorney-General hopes to reduce these awards on the ground of false
representations, and that it parted with Porto Rico and its other posses-
sions, supposing that, anywhere from $l(i,000,000 to $60,000,000 was to
be paid by the United States to its citizens.
It is a well settled rule in the construction of treaties that clauses of
this nature must be construed strictly against the party making them.*
The United States needed these claims in order to make peace. 1 1 took
them by the right of eminent domain, confisca'ed them and not only
rendered them valueless as against Spain, but took it forever out of the
power ill (In1 United States to present them against Spain at any future
time, ami therefore in the construction of this clause every presumption
must betaken against the United States and in favor of every person
who had a claim or an abstract right of an\ kind to demand indemnitj
for any loss which lie had sustained.
Again, if the argument of the Government's counsel is correct, the
Commissioners at l'aris pledged to Spain the solemn faith of the United
States that the explosion of the Maine would never be even referred to
again by any official of the United States in any manner derogatory to
Spain.
It must he admitted that the requests of tin- Spanish Government to
arbitrate the matter had nothing whatever to do with the financial side
of the case, but were only for the purpose of protecting the good name of
Spain, and they were called forth, as stated in the protocols, by the
allusion of President McKinley in his annual message of December 5th,
1S98, to the destruction of the Maine as being suspicious.
They asked that the matter be arbitrated because the good name of
Spain had been attacked and she had been charged with inability to pro-
tect a foreign warship, i bat was the sole ground of the request on
both occasions upon which it was made, and on both occasions the
American Commissioners declined to open the subject, because they said
the incident was closed. As stated during the argument of the
demurrers by the President of this Court the Spanish never used the
words attributed to them by counsel for the Government, that the
matter was settled.
Counsel for the Government cannot confine their arguments to the
* The cases cit(>d under the Thirteenth Point, page 44, ante, of this brief as to strict
construction of tariff laws against the United States are also applicable to this point.
SS BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
financial elements of the question; if their contention is sustained it will
practically be an adjudication by this Court that if on any occasion here-
after the President of the United States or any other person high in
authority shall declare that the destruction of the Maine was due to
Spanish wrongdoing or Spanish negligence, there will have been a breach
of the treaty, for which Spain could justly demand indemnity.
TWENTY FIRST. The United States has
received compensation for these claims and
holds it in trust for these claimants. The Gov-
ernment which receives lands as indemnity
for national and individual claims is in the
same position towards its citizens -whose
claims have been relinquished as though the
indemnity had been paid in cash.
Counsel for the Government intimated in their argument that these
claims had never been heard of until after the treaty had been made
and ratified and this Court had been created. In this they are mistaken.
As early as February ;2<S, 1898, counsel for the claimants, when there
was no thought whatever of representing them before this Commission,
stated in the public press that the United States had a right to demand
indemnity for all those who had sustained loss by the explosion of the
Maine* Be that as it may. however, the United States, as appears by
the letter of Secretary Day, which has already been quoted from at
lengthf, and the protocols of the Peace Commission, demanded and re-
ceived the Island of Porto Uico, the other islands of the West Indies
under Spanish sovereignty and the Island of Guam as indemnity not
only for war expenses but also for injuries of its citizens to persons and
property dining the period specified in the Treaty of Peace. Leaving
the Philippine archipelago entirely out of the question, the United
States to-day owns and exercises sovereignty over a large extent of most
valuable territory, which it acquired to some extent by the confiscation
and surrender of the claims of its citizens against Spain, and it doe- not
lie in the mouth of the counsel representing tin' Government to now
deny the existence of the claims which were used in part payment for
this property.
The value id the property lias nothing whatever to do with the mat-
ter : when a government accepts territory for national and individual
claims it must itself take the risk of the value of the indemnity accepted
*See N. Y. World for February -iti. 1898.
f Sim- extracts from letter of Secretary 1'ay to Duke d'Almodovar del Rio, ol Julj 80
1 8^8, referred to on page TS, cade, of this brief.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 89
and must pay the claims of the citizens, which its own constitution for-
bids it to take without just compensation, before it can realize its own
national demands. Whether or not the value of the territory acquired
by the United States exceeds the amount of the individual claims suffi-
ciently to completely indemnify this Government for the cost of the war
is a matter for which the Commissioners at Paris making the treaty, the
President approving it, and the Senate ratifying it, are responsible; and if
they believe that the territory acquired was sufficient to indemnify the
Government, or was all that could be obtained, responsibility falls upon
them, and the individual claimants cannot in any way be affected
thereby. This is not the first time that the United States has accepted
territory as indemnity and paid the claims of the citizens. In the cases
of Louisiana ceded l>y France, and Texas and California ceded by
Mexico, there were monetary considerations in regard to the claims
which were surrendered at the time; but in the case of Florida the land
was taken and claims to the amount of $5,000,000 were assumed and
paid, and the counsel for the Government himself admitted that there
was a fund in this case. In fact, he declared that Spain was paying the
claims and not the United States.*
TWENTY SECOND. - Governmental obliga-
tion for personal injuries to, or deaths of, citi-
zens of other countries recognized under in-
ternational law as individual claims.
It seems hardly necessary to refer to this point, but in view of certain
questions asked on the argument counsel calls the attention of the Court
to the numerous cases in Moore's Arbitration in which indemnity for
personal injuries to. or deaths of, its citizens in foreign lands has been
demanded by the Government of the United States from the government
of the country in which the injuries and deaths occurred; and also*
in which the United States has paid indemnity to foreign governments
* Mr. Russell, in the course of his argument, said (p. 82): " I presume the prece-
dents referred to are the numerous treaties iu which the form of the treaty is that of a re-
linquishment; but the reality of the treaty is that the foreign nation turns over a fund in
payment of and by way of donation for political reasons on account of the claims asserted
and made by our Government. I am not raising any objection to the proposition that
Spain paid over a fund. I am very glad it has been brought forward.
Mr. Maury: The difference between this and other cases is that we agreed to pay a
certain amount — there was a maximun, $3,000,000, I think.
Mr. Russell: It is Spain that is paying the claims provided for in Article VII. and
not the United States — paying them out of a fund provided in the treaty, just as if it was a
fund of money originally. This land is to be regarded as money, and so much of it is to
be paid as the claims are really worth and not a maximum to be distributed upon some
loose principles of international comity."
90 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
under similar circumstances. Wrongful governmental acts and negli-
gence to prevent mob violence have generally been placed upon the same
footing. The Senate Committee on Foreign Relations so placed the
cause of the Maine's destruction.*
Whether the destruction of the Maine was the result of criminal
negligence on the part of the Spanish Government in not preventing
it, or of actual wrongful governmental act, is immaterial at the present
time, as the petitions allege that the destruction of the vessel resulted
from one cause or the other, and for a cause for which that Government
was responsible. The Government of the United States' has necessarily
admitted this by demurring, in fact, it has gone further by affirmatively
alleging that the act was a cause of the war.
This Court is to adjudicate the claims before it on the principles of
equity and of international law. The rules of the common law and of
statute law as administered by our municipal courts do not apply or bind
this Court. Claims for death and injuries can never exist between govern-
ments under any statute, for no power exists to enact the statute. They
can be recognized by this Court under the principles of international
law;f because the cession of Porto Rico was demanded as indemnity for
injuries of our citizens to person and property;! an<l because equity de-
mands that when the United States agreed to adjudicate and settle
claims of citizens relinquished, it thereby agreed to give to its citizens all
that it already had or could have demanded from Spain in their behalf. S
One specific instance will be cited as the basis for the claims of peti-
tioners who are relatives of those who were killed.
The claims of the families of the passengers and crew of the Vir-
ginius, who were shot in Cuba in 1873, were settled by the payment of
a lump sum of $80,000 by Spain. ||
The agreement provided that the purpose of the payment was the
relief of the families or persons of the ship's company and passengers,
and the money was accepted by the United States Government in satis-
faction of reclamations of any sort, which, in the sense of personal
indemnification, might be advanced against the Spanish Government.
It also provided: '• The President of the United States will proceed to
distribute the same among the families, or the parties interested, in the
form and manner which he may judge most equitable, without being
obliged to give account of this distribution to the Spanish Govern-
ment."
*See extract from Report of April 13, 1898, quoted under Seventh Point, p. 27 of
this brief.
\ See cases cited under Fifth Point, pp. 21, 22, ante.
| See Secretary Day's letter of July 30, 1898, cited on p. SO, ante.
§ See Senate Report and claims of this nature referred to therein, cited on pp. 27, 28,
ante.
] Protocol or Agreement of February 27, 1875, U. S. For. Rel., 1875, under Spain;
see sub-head Virginius.
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 91
Subsequently the money was received and distributed by President
Grant. The money appropriated to the families was divided according
to a system which was adopted as being the most equitable, and if the
('iiurt will examine the sixty petitions and upwards filed by the firm of
the counsel for these claimants it will find that the same basis of distribu-
tion which was adopted by President Grant has been adopted as the basis
of the demands in these cases.*
TWENTY-THIRD. The Statute of March 30,
1898, is not a bar to the petitioners1 claims;
furthermore, payments thereunder cannot be
set up on a motion to dismiss for want of juris-
diction or by demurrer.
The act of March 30, 1898, was not for indemnity for death or in-
jury. It was to reimburse for articles lust. The amount was one year's
sea pay. The payments had to be made pursuant to provisions of the
act and there is nothing on the record of these proceedings to show that
these .petitioners ever received any money under the act or accepted its
provisions.
The United States was not responsible for the destruction of the ves-
sel and the payment was a mere gratuity.
The claims against Spain were actual property rights, and if the
United States had attempted to confiscate or condemn them by a nominal
payment in this manner the act would have been unconstitutional.
The claim against Spain was necessarily unaffected, as the act was passed
March 30, and the treaty was not made and the debt assumed by the
United States until December 10, 1898.
During the reconcentrado period in Cuba many Americans were as-
sisted by the United States Consul. Some of these persons have claims
against Spain for their ill treatment. Is this Court to decide that the
help extended in that manner wiped out claims against Spain which
were assumed a year later ?
As stated under a previous point, Congress appropriated $10,000 for
" III. — The several amounts allowed as above are to be paid to the widow, children
parents, or brothers and sisters of the deceased as follows :
(1) To the widow of the deceased.
(2) If no widow, to the children of the deceased in equal shares. Where such
children shall be minors, the same shall be paid to a legally appointed guardian.
(3) If no children, then to the father ; if no father, to the mother.
(4) If no father or mother, then to the brothers and sisters in equal shares.
(6) If the deceased shall have left no widow, child, parent, brother or sister, no
amount is to be paid on his account."
49th Cong., 2nd Sess., Sen. Ex. Doc. No. 82. Mess, of President Cleveland on distri-
bution Virginias fund, Feby. 14, 1887.
92 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
the crew of the General Armstrong, but that did not interfere with pressing
claims of the same persons against Portugal for the damages caused by
its violations of neutrality in the Harbor of Fayal. The effect of this
statute has been covered so thoroughly in the able argument of other
counsel, that it will not be enlarged on here.
Had the claims against Spain been referred to an international tribu-
nal, Spain would not have been able to plead this statute and payments
under it. it' any were made; and, as the United States stands in the shoes
of Spain before this tribunal, it cannot plead anything as a defense which
would not have been pleadable by Spain.
TWENTY- FOURTH — A moral obligation
rests upon the United States and upon this
Court to adjudicate these claims for the peti-
tioners.
This Court will take into consideration the great disadvantage under
which the petitioners have been placed by the obliteration of their claims
against the Spanish Government and the assumption thereof by the
United States under the treaty of 1898.
Doubtless the United States had the constitutional right to relieve
Spain from all obligation for the wrongs committed by that country upon
American citizens, arising from the abhorrent condition of the island of
Cuba, and culminating in the destruction of the Maine and the death of
two hundred and sixty-six American seamen, and to assume, adjudicate
and settle these claims itself: but although this right existed, availing
of it has necessarily placed all of the claimants under the disadvantage
of having the Government of the United States arrayed against
them instead of being upon their side. Had the Treaty of Peace pro-
\ided that Spain should remain liable for all claims owing by that
Government to citizens of the United States, and provided 1'or a regular
international tribunal to adjudicate such claims, every suitor before this
Court would have been represented before Buch tribunal by the Govern-
ment of the United States, which would have used its tremendous power
to procure for each claimant not only a favorable adjudication on
every point of law involved, thus extending the liability as far as pos-
sible from a legal standpoint, but it also would have urged such tribunal
to render as large an award as possible from a pecuniary standpoint.
Since, however, the United States has released Spain from all
liability, and agreed not only to adjudicate these claims, but also to as-
sume the payment thereof, the claimants now find that they have not only
lost the weight and influence of their own Government in urging these
claim- to the widest extent and for the fullest amount, but they find
that Government appearing against them before this tribunal, with
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. f ' 3
an nrray of able counsel especially employed not only to limit the
liability of Spain to the narrowest point, and reduce the loss for which
citizens of this country are entitled to indemnity to the smallest amount,
but, as appears by these demurrers, to obtain from this Court, created
by Congress for the purpose of adjudicating and settling these claims,
a legal decision that the claims do not even exist.
This Commission must, as it undoubtedly will, always bear in mind
that in adjudicating these claims it is laying down the law for the
future; it must remember that some day decisions which this Court
shall make determining the extent of the liability of the United States
as the assuming debtor for crimes committed by the Spanish Govern-
ment upon American citizens, will be cited against the United States as
the measure of liability which can be asserted by that Government itself
as resting upon foreign nations under similar circumstances.
A grave responsibility rests not only upon the Spanish Treaty Claims
Commission as a Court, but also upon the Attorney-General, for the posi-
tion taken by him on behalf of the Executive Department of this Govern-
ment. His arguments and briefs will undoubtedly some day be quoted
before The Hague, and other international, tribunals as declaratory of
the full measure of liability which, in the opinion of the present executive
department of this Government, rests upon a foreign government for
the ill-treatment of American citizens: such liability cannot be any
greater when the foreign country itself has to pa^' the damages sustained
by our citizens than when the United States is obliged to pay them by
virtue of au assumption similar to that of the treaty of L898.
The foregoing remarks relate particularly to the questions of inter-
national law to be determined by this tribunal and not to the amounts of
damages to be assessed by it. It is eminently proper that this Court
should closely scrutinize every claim presented to it so far as the amount
claimed for damages is concerned. Possibly some of the claims for
damages to property which it will be called upon to adjudicate may have
been estimated by the sufferers at amounts which will bear inspection,
and a sum less than that claimed would reimburse the claimants for the
damages sustained. So far as the facts are concerned, this Court should
require the fullest proof which can be obtained that the injuries actually
were received and the loss actually was sustained, but as to the principles
oi equity and of international law involved, let this Court remember that
the protection which must be accorded to citizens of the United States
in foreign lands must be so full and complete that plantations belonging
to American citizens cannot be burnt and pillaged, that American citi-
zens cannot be ruthlessly shot or imprisoned regardless of the forms of
law and the protection afforded by international law and by treaty stipu-
lations, and that above all our soldiers and sailors cannot be hurled into
eternity from the deck of a battleship in a so-called friendly country's
harbor while on a mission of peace and rightfully there.
94 BEFORE THE SPANISH TREATY CLAIMS COMMISSION.
TWENTY-FIFTH.— The demurrers should
be overruled and the claimants awarded the
amount of their damages, as alleged in the
petitions.
BUTLER & IIARWOOD,
Attorneys for Claimants,
135 Broadway,
New York City.
Charles Henry Butler,
Of Counsel.
[F3788]
„4& .
/
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