11 
 
 / 
 
 The responsibility of Spain 
 
 FOR THE 
 
 Destruction of the United States Battleship Maine 
 IN HAVANA HARBOR, FEBRUARY is, 1898, 
 
 s 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. 
 
£ niTL 
 
 llilSS 
 
 llddk vS ^1 
 
 lUKSKNTltli In 
 
With the Compliments of 
 
 CHARLES HENRY BUTLER, 
 
 135 Broadway, 
 
 New York City. 
 
The responsibility of Spain 
 
 FOR THE 
 
 Destruction of the United States Battleship Maine 
 IN HAVANA HARBOR, FEBRUARY is, i8q8, 
 
 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, iqoi. 
 
 On behalf of Claimants represented by Butler & Harwood. 
 
 NEW YORK : 
 
 The Evening Post Job PRtNTiNG House, 15K Fulton Street. 
 
 (Evening Post Building.) 
 
 1902. 
 

 Gift from 
 
 Charles H. Putter 
 
 April 7. 1932 
 
TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT. 
 
 PAGF. 
 
 Statement of the ca.se 1 
 
 Al)stract of jii'titious "-^ 
 
 Article VII. nl' Treaty of Peace 3 
 
 Act of March 2. ]'M)l. apiioiuting C'oiiiiiiii-sion 3 
 
 Position of Attorney-^'f'iieral on Mulni: cases 3 
 
 Motions to dismiss and disposition thereof i 
 
 Extracts from Attorney-General's brief on motions to dismiss .5 
 
 Propositions of law in Government's brief <' 
 
 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. !» 
 
 Questions of responsibility cannot be raised on demurrers. ... 10 
 
 Extract from Attorney-General's brief as to jurisdiction 10 
 
 Second Point. 
 
 Dirty of this Court to take jurisdiction of the claims. 11 
 
 Third Point. 
 
 Jurisdiction of similar tribunals discussed 1'5 
 
 The Aspinwall bond case against Venezuela 1-t 
 
 Extract from Moore's International Arbitration 15 
 
 Jurisdiction of Commissions over claims of Go\-ernment oflicials. 
 
 civil and military 1^ 
 
 Fourth Point. 
 
 The burden of sustaining demurrer for want of jurisdiction upon 
 
 the Government l*^ 
 
 Congress intended this Court to take jurisdiction of all claims. 19 
 
II TABLE OF CONTENTS AND ANALYSIS OF AROUMENT. 
 
 II. 
 
 AS TO THE MKKITS OF THE DEMURRERS. 
 
 PAOE 
 
 Filth Point. 
 
 Claims eliould bo allowed "on thoir merits ami on tlie principles of 
 
 equity aud of international law " 20 
 
 International law part of law of United States 21 
 
 Precedents in which Ignited States has demanded indemnity for 
 ofticials, civil and military, must be regarded as interna- 
 tional law liy this (!ourt; precedents cited 22 
 
 Sixth Point. 
 
 Spain responsible for the destruction of tiie Miiiiie; 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 
 
 Sevuutli Point. 
 
 Legislative history of the declaration of war 25 
 
 Extracts from report of Naval Court of In(|uiry and President's 
 
 messages 2'i 
 
 Kejmrt of Committee on Foreign Relations of April 13, 1898.. 27 
 
 Joint resolution for recognition of independence, etc 29 
 
 Act of April 25, IX'J><, declaring war 30 
 
 Effect of Attorney-General's proposition that Maine was the 
 
 cause of the war on American principles of arbitration .... 31 
 
 Eit^Iith Point. 
 
 Treaties of peace do not necessarily •)bliterate claims of citizens. 
 
 even though connected with causes of war 32 
 
 Views of Daniel Webster on this point 33 
 
 Views of Kent. Wheaton. WOolst-y and others on this point. . . 34 
 
 Views of Ilalleck, Phillimorc and Lord Stowell on this point. . 35 
 
 Ninth Point. 
 
 Under international law (iovernmeuts must com|)ensate citizens for 
 
 claims released by treaty 36 
 
 Supreme Court decisuins on this point and extract from 
 
 Grotins 37 
 
 Tenth Point. 
 
 The foregoing principle of international law a part of the con- 
 stitutional law of the United States 3S 
 
 Decisions cited that claims of citizens of the United States 
 
 against foreign powers are ]>roperty rights 3Ii 
 
 Olditeration of such claims by treaty lield to l>e the taking of 
 
 private jiroperty for jmhlic use under the Constitution 3'.i 
 
 Just compensation must be rendered for taking such claims for 
 
 public use "iO 
 
TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT. Ill 
 
 PAGE 
 
 Eleventh Point. 
 
 'i'reaties of peace on same footing as otlier treaties 40 
 
 Proceedings of Constitutional Convention of ITS7 41 
 
 Authorities cited on tiiis point 41 
 
 TwoU'tli Point. 
 
 'J'lie relinquishment of claims l)y Article VII. of the Treaty of 
 Peace included claims of every nature, whether connected 
 with causes of war or not 4'2 
 
 Thirteeuth Point. 
 
 Treaties affecting rights of citizens must be construeil liberally. ... 43 
 In this case the construction must be liberal for the citizens 
 
 whose claims were extinguished 44 
 
 Position of President McKinley in regard to these claims. ... 45 
 
 Foniteenth Point. 
 
 Claims extinguished by the Treaty of Peace necessarily include 
 
 these claims 45 
 
 Distinction between national and individual claims 40 
 
 E.xtracts from opinion in French Spidiaticn case 46 
 
 Other cases in wdiieh national aTid individual elements have 
 
 existed 47 
 
 Charles Sumner's report in French Spoliation eases and his 
 
 views on national and individual claims 4'.i 
 
 List of French Spoliation cases 41) 
 
 Fifteenth Point. 
 
 Moral duty resting upon United States Government to present 
 
 claims to Spain 50 
 
 Authorities cited on responsibility of (ioverumcnts 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 ofiicers, sailors and marines, or the widows and 
 orphans of, otticers, sailors and marines, of the Navy of the 
 
 United States 51 
 
 Policy of the United States always to protect its soldiers a.iid 
 
 sailors in foreign lauds 52 
 
 The BaUiiiuire case S'-i 
 
 Extracts from President Harrison's message 53 
 
 Extract from Secretary Blaine's instructions 53 
 
 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. 
 
 PAOE 
 
 Government's effort to distiiigiiisli Bnllimore case, and extracts 
 
 from M r. Kiisscll's argument 55 
 
 Attempt to distinguish case refuted by statements in President 
 
 Harrison's message : extracts tliere*'ri)m 55 
 
 The case of the C/iesdjicuke sailors, United Slates rs. Great 
 
 Britain : indemnity for attack by the LeojmnI 5? 
 
 Tiie ease of tbe (leiicriil Aniisl mny. United States vs. I'ortugal, 
 
 and demand for indemnity of crew of jirivateer 59 
 
 The case of the Wyomiug, United States rs. Japan, and in- 
 demnity collected for crew 50 
 
 Governmenl's attem]it to distinguish Wijomiiiy case refuted by 
 
 Senate Committee's ]{eport 5'.i 
 
 The case of the Wutir Witch, United States vs. Paniguay; in- 
 
 demity collected lor sailor killed while on duty r,0 
 
 The llnexken case, United States vs. Ja|)ai), indemnity collected 
 for member of legation killed, and extracts from Foreign 
 Ri-lations IJeports HI 
 
 'I'he c;ise of the Spfinis/i Cfiiisul-y i>/ .Vf/c Orleans cm i/ Key HV'.v/. 
 Spain vs. United States, indemnity paid by United States 
 to consuls assaulted by mob til 
 
 Tbe .Miirycrij case. Great Britain vx. t'hina : indemnity de- 
 manded and collected lor military officer killed G'i 
 
 The case of the British Sailor.s in Japan, Great Britain c.v. 
 Japan: indemnity demanded and collected for British 
 sailors killed in legation, and extracts from Foreign Rela- 
 tions Reports in regard thereto *'>'i 
 
 The case of the Froirh Corretle Duplei.r, France c.v Japan, 
 indemnity demanded and collected for killing of French 
 oflBcers and sailors '>•< 
 
 Seventeenth Point. 
 
 Spain's responsibility not affected by tbe fact that injuries oecnrred 
 on a United Stales battleship: doctrine of exterritoriality ap- 
 plicable to war vessels does not relieve sovereign of port from 
 
 protection of vessel tj-t 
 
 Importance of t!iis rule to the United States <)-l 
 
 Attorney-General's position on exterritoriality stated in cNtnicis 
 
 from his brief ''5 
 
 Sicretary Sherman's position that Spiiin was resiKinsible lor 
 
 safely of vessel '''"' 
 
 Doctrine of exterritoriality applic^djle ojually to ships and em- 
 bassies, and extracts from Wbeaton in regard thereto .... I'T 
 Position of Col. George B. Davis in regard to principles of ex- 
 territoriality and their apjilication to the Maine case I>T 
 
 Extract from last edition "f Professor Davis' book oTi inter- 
 national law in regard to Maine case *'•'> 
 
TABLE OF CONTENTS AND ANALYSIS OF ARGUMENT. V 
 
 PAGE 
 
 Elgliteenth Point. 
 
 letber 
 
 The claims relinquished by the treaty included all claims, whethe 
 same had been presented by United States to Spanish Govern 
 
 69 
 nient or not ' 
 
 Definition of tlie word rhiims and authorities cited in regard 
 
 thereto ^^ 
 
 Unnecessary to present claims; position of Paris Commissioners 
 
 in regard thereto • • 
 
 Other treaties cited in wliieh presentation made an essential 
 
 element for recognition or to confer jurisdiction T^ 
 
 Correspondence of State Department refutes Attorney-Gen- 
 
 eral's position ' ' 
 
 Act of March 'i, 1901, gives jurisdiction to all claims, whether 
 
 presented or not; extracts from the Act "4 
 
 Nineteenth Point. 
 
 Maine claims formally presented by the United States to Spain be- _ 
 fore the war and demand for reparation made 'O 
 
 Correspondence between State Department and Spanish Gov- 
 ernment in regard to Maine claims ' '' 
 
 Spain charged with responsibility for destruction of the Manie 
 
 by Secretary Sherman ' ' 
 
 Spain's oftcr to arbitrate and correspondence in regard thereto. 7S 
 
 Keport of Senate Committee on Foreign Relations m regard to 
 
 responsibilitv of Spain for destruction of the Maine T'-' 
 
 Secretary Day's letter of July 30, isOS. demanding Porto Rico, 
 
 etc., as indemnity for injuries to citizens f^O 
 
 Correspondence between American and Spanish Commissioners 
 
 in Paris in regard to claims of citizens ''I 
 
 Spanish Commissioners' otfer to arbitrate question of re- 
 sponsibility for Maine declined by American Commis- 
 sioners ~ 
 
 Same offer repeated and declined • • • • ^ -^ 
 
 Addition to Article VII. that United States would adjudicate ^^ 
 claims of its citizens • 
 
 No contract made by Peace Commissioners with Spain m regard 
 
 to Maine, as stated by Attorney-General «•:> 
 
 In construing treaty, rights of American citizens and not " sen- 
 
 sibilities " of Spain are to be considered by this Court !^& 
 
 Twentieth Point. 
 
 Spanish Treaty Claims a domestic commission, and the Government 
 
 of Spain has no standing before it ^ 
 
 Spain not interested in amount of claims awarded, as n , con- ^^ 
 tiugent liability exists 
 
"fl TABLE OF CONTENTS AND ANALYSIS OF AKOUMENT. 
 
 I'AOE 
 
 Tweutj-flrst Point. 
 
 United Suites ivcciv.il l'..ito IJico, etc., specifically to pay claims of 
 
 its citizens " i,„ 
 
 Government aeerptiiij,' territory for indemnity is nnder same oi)- 
 
 ligati(.n to pay to citizens as though it received cash 88 
 
 Twenty-sotond Point. 
 
 IndividiMl elainis against Governments f,ir injniii-s of and d.-alhs to 
 
 citizens of other countries recognized by international law. . 8!) 
 
 Recognized hy United States ,,J, 
 
 The case of the Virginiiix and the distribution of the award . . . i.o 
 Tweiity-tliird Point. 
 
 Statute of March :50th, 1898, not a bar to petitioners' claims. I'av- 
 
 meiits thereunder cannot be sec up on demurrer ". . (pj 
 
 This defense could not have been pk-aded liy Spain, and there- 
 fore not iiltadahje by United States 90 
 
 Twenty-fourtli Point. 
 
 The ni.M'al obligation to adjudic^ate these claims for the p.-titioners. •.!■> 
 Effect of decisions of this Court upon international law and 
 
 claims of United States against foreign nations .13 
 
 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 (,;j 
 
 Twenty-tin h Point. 
 
 Demurrers should l)e overruled ,>, 
 
Before tbe Spanish ^reat\> Claims Commission. 
 
 Act of Congress of 31arc'li '2, IDOl. 
 
 Harry S. McCann 
 
 "^^^ / No. 30. 
 
 The United States. 
 
 Cathaeine Burns 
 
 vs. 
 The United States. 
 
 MAINE CASES. 
 No. 31. 
 
 Arg-ument of Charles Henry Butler for Claim- 
 ants on Demurrers. 
 
 STATEMENT. 
 
 The claims in both of these cases are for damajies occasioned by the 
 explosion of the Maine in Havana Harbor on Feliruary !•'), IS'.iS. The 
 claimant McCann is a snrvivor and demands ^lo.oOO as damages for 
 injuries which lie sustained; the claimant Burns dem.mds ?C^O,000 as 
 damages for the death of her .sou, who was killed at the same time.* 
 
 In e.ich case a petition h;iS been tiled in acccu'dance with the pro- 
 visions of the statnte establishing the Commission, and with the rules and 
 practice adojited by the Commission : each is properly verified, sets forth 
 concisely and without unnecessary repetition tiie facts upon which the 
 claims are bused, 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 songlit to be recovered ; each lias 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 olauns similar to those of iliese|ietitioners liave been 
 filed with the Spanish Treaty Claims Commissions. Most of them are claims of relatives 
 of men who were Uilled, l.ut a lew are claims of survivors who were injured. About 
 sixty of tlie petiiioners are represented by Butler it Harwood, lo5 Broadway, Xew York 
 City, who are the attorneys for the petitioners McCann and Burns. The total amount of 
 claims in what are known ag Maine cases is about $Z, 500, 000. 
 
5} BEFORE THE SPANISH TUKATY CLAIMS COMMISSION. 
 
 sion, and can only be i)rost'Cutfil, or duftMuk'tl, in uceorilance with the 
 provisions of the statute and the rules adopted by the Commission. 
 
 Briefly stated, each petition sets forth the following facts: 
 
 I. — That the petitioner is a citizen of the United States. 
 
 II. — That the petitioner has a claim aj,'ainst Spain which arose in the 
 manner stateil, and between February, 18!t5, and April, 18!l!) — to wit, on 
 February 15, 18;i8. 
 
 III. — That the claim lias never l)een satisfied. 
 
 IV. — That tlie .M<ilne at the time of the explosion was in the Harbor 
 of Havana on a mission of peace, and ri<,'htfiilly tlieiv, and that the per- 
 sons killed and injured were rightfully on board of her. 
 
 V. — That the injuries of the claimant, McCann, and the deatli of 
 Hums, were the result of the explosion, and the claimants ji^ive 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. — Tiiat such explosion and the resultant damages were caused by 
 an ext«rior 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 resi>onsible and liable therefor. 
 
 VIII. — Tliat peace existed between Spain and the United States on 
 J-Vbruary L"), 1898. 
 
 I X. — That Havana, L'ulta, iiuhiding the iiarbor thereof, on Feliruary 
 l.'i. Ib'.is, was under tlic control and dominion of the C«o\ernment of 
 Spain, and of no other country or government. 
 
 X. — That the political departments of the Government of the United 
 States have established as an historical fact, which is bimling ujion the 
 judicial department, that the Spanish Government was resjionsible 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 the other from all claims, national and individual, to the most 
 complete extent, and by the broadest terms, which could possibly have 
 been used : and the United States also declared that it would adjudicate 
 and settle the claims of its citizens which were thus relinquished.* 
 
 * " Abticli VII.— Tlie L'nitud Suites and Spain muliially relinquish all claima for 
 indeninily, national and individual, of every kinil. of either (Jovernnient, or of its citizens 
 or »ul>jetl8, against tlic other (Jovernnient. thai may have arisen since the beginning of lh« 
 late insurrection in Cuba and prior to the exchaOL'c of ratifications of the present treat \ , 
 including all rlaiina for indemnity for tin- cost of the war. 
 
 " The United States will adjuilirate and settle the claiius of its citiiens agaioal S|i>iq 
 relinquished in this article " (80 U. S. St. at 1... pp. 1754-1757.) 
 
AtiOritENT OF ClTAS. H. BUTLER IN jIAIXE CASES. o 
 
 On Mai'rh 2, IKOl, Odiigrcss pussed an act directing the President to 
 appoint this Commission to adjudicate the claims relinquished by the 
 article of the treaty.* 
 
 The act provides tiie methotl in which claims are to be presented 
 and jirosecuted and tiie 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 and adjudicate chiims of 
 this nature, the claimants have appeared at its bar 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 3, IHOI, the Attorney-General moved to dismiss the 
 claims "for want of jurisdiction " of the Commission.! 
 
 To these motions the claimants raised the jjreliminary objection that 
 under the statute of March 2, 1901, the defendant was confined to de- 
 murring or answering. The preliminary objections were ai-gued on 
 November 2iith, and overruled, but on December lltli the motions were 
 
 * " Cu.'ip. 800.— An Act to carry into effect llie stipulations of article seven of the 
 treaty between the United States and Spain concluded on the tenth day of December, 
 eighteen hundred and ninet3--eight. 
 
 Be il enacled by lite Semite and Hiinxe of Represndatiiies of the United St<des of America 
 in Coni/re/is assembled. That the President of the United Slates shall appoint by and with 
 the advice and consent of the Senate, five snitable persons learned in the law, who shall 
 constitute a commission, whose duty it shall be, and it shall have jurisdicUon, 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 tenth day of December, A.D. 181)8. 
 It shall adjudicate said claims according to the merit of the several cases, the principles of 
 equity, and of international law" (31 U. S. St. at L., p. 877). The act consists of 10 sec- 
 tions, the first only is here quoted, 
 
 f The grounds stated in the motions to dismiss are as follows : 
 
 '• 1. 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 of 
 the Act of Congress of March 2, IHiil, organizing this Commi.ssion ; 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 Congress aforesaid, as ap- 
 pears by reference to protocol No. 20, of December t>, lSii8. (Treaty of Peace between the 
 United States and Spain, Senate, 55tli Cong.. 3rd session. Doc, No. iVi, part '2, pp. 242-244. ) 
 
 ■' 2. That the alleged claim has been finally disposed of and concluded bj' the action 
 of the political department of the United States, and this di-sposition 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. 349) 
 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 States has satisfied all chiims for pecuni- 
 ary indemnity sustained by individual citizens as a result of the acts alleged in the 
 petition." 
 
i BEFORE THE SPANISH TREATY CLAIMS COJIMISSIOJ^. 
 
 withdrawn and demurrers substituted therefor, tlie grounds for which 
 were somewhat difterent than those stated in the motions to dismiss.* 
 
 In liis brief on tlie preliminary objections the Attorney-General 
 declared tliat the motions to dismiss prdrliraUy were demurrers and 
 could be considered and argued as such. On the argument of the 
 objections, however, a different jiosition 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 tin- petition was 
 drawn in such a manner that a demurrer was impractical. In fact, the 
 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 wftuld prohably 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 tlie Government in supjiort of 
 the motions to dismiss in which the position was taken: That 
 " among the causes of war, formally set forth in the Joint Resolution 
 of April 20, 1S9S, was the destruction of a United States battleshiii, 
 with two hundred and sitty-six of its otKcers 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 treaty not to provide for, but to relin(|uisli and leave in oblivion as 
 settled in the tribunal of war. the grievance referred to expressly in the 
 Joint Kesolution of April 20, 1S98"; his firbt 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 shi|) with its 
 ofiBcers and crew.'" Tlie brief then refers to the report of the Naval 
 Court ol Inquiry and to tite Act of Marcii 30, 1898, by which a sum not 
 
 • The grounds of the demurrers are staled as lollows: 
 
 Now comes llie United SUt<'s, by tlie Attorney General, and demurs to the petition 
 herein on the following prounds: 
 
 1. That the Commission has no jurisdiction of the subject matter sUited in the petition. 
 
 2. That the petition does not conUin facts sulTicienl to constitute a cause of action or 
 entitle the claimant to an iiward agiiinst the defendant. 
 
 3. That no liability ever existed on the part of Spain in favor of the claimant by 
 reason of the nllc>;ed acts complained of in the petition, and there is no liability on the 
 part of the United States in favor of the claiinnnt by reason of the Treaty of Peace between 
 the United States and Spain of December 10, ISitg. 
 
 4. That the alU'ijed claim is not within llir terms or (he contemplation of th- Treaty 
 of I'cace between the United SUIes and the Kingdom of Spain of Decemlwr 10, 1898, or 
 the Act of t'ongrcss of March 2. 1901. 
 
 f Mr. Alexander Porter Morse. 
 
ARGUMENT OF CHAS. H. BUTLER IX MAI^fE 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 relini|nish any claiui im behalf of 
 citizens against Spain." 
 
 Paragniphs HI. and IV. of the l)rii_'f are the most remarkable, however, 
 in that they are practically a plea entered on behalf of the Spanish 
 (rovernnient by the Attorney-General of the United States; they are 
 therefore (pioted in full in the notes for the purpose of showing that the 
 Attorney-(ieneral has endeavored at every opjiortunity to make this 
 Court believe that the adjudication clause of .Vrticle \'II. of the treaty of 
 ISIKS, was made for the benefit of Spain instead of for the benefit of 
 citizens of the LFnited States whose claims against Spain were obliterated 
 by the treaty as against that country.* 
 
 The withdi'awal of the motions and sub^titutinn 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 ileniurrers the Attorney-General 
 filed a consent that the brief above referred to should stand as his brief in 
 support of the demurrers : since the argument the counsel for tiie Gov- 
 
 * " .S. Notwilhslandinglhe broad language of llie treaty and the jurisdictional act, it is 
 not to be supposed ihat the Government of Spain or the Congress of Ihe United States 
 iotemled that this commission, constituted in a spirit of reconciliation to asceitiiin 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. 1S95, should en'er upon 
 an inquiry inlu the res]ionsibility of Spain for the deslruction of ihe batlleehip refi-irtd 
 to and bring in ex jmrte a judgment holding Spain up to the oliloquy of the civilized 
 world. That imjuiry had been submitted to another tribunal, had been exhausiively car- 
 ried on, had been acted upon by Congress, had been followed by war partially based upon 
 the alleged destruction, and the subject had been eai'efully 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 appliancei which have been furnished to it. suitable only for 
 the ordinar\- purposes of a claims commission, was intended to open up and umlo 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 tliis subject, so obviously unthought cif 
 in the constituting of the commission, so far beyond its power to act upon adequ:ilely, 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 BEFORE THE SPANISH TREATY CLAIMS COMSflSSlOV. 
 
 erument have filed iin addiiional luicf in which their i)osition is finally 
 stated with some degree of defiiiiteiiess; seven prdpositions are stated* at 
 length, which are afterwards reduced to tliree princii)al points as folUjws:f 
 
 " I. — Tlial the destruction of the haltleship Maiiif was one of tiic 
 causes of the war Ijetwecn Spain and the United States.}: 
 
 " 11. — That no lialjility 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 tlic Oovernmeiifs brief are ns follows: 
 " Firsl — Th.1t llie Commission possee'es no power or jurisdiction lo rerieie any net 
 of the I'liiled Slates (iovernment, wlic-tlier emicleti \>y its politiisl, 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 eluim for indemnity, national or individual, except such as 
 existed agaimt Spain at the time of the execution of the treaty of peace ran he enter- 
 tained by the Commission. 
 
 " Third. — That no national claim for indemnity on account of the destruction of the 
 Atainr vaxei'tr aiaerleil hi/ Ike Uniltd Stales agninal Spain, and that no individual claim for 
 indemnity arose out of this occurrence. 
 
 "Kouith. — That the battleship Maine, her erew and erjuipment, constituted an 
 entirety, a unit, a mililnrv and governmental orijanisra, which in its nature wa« not 
 severable ; and that, as a consequence, any claim for indemnity which may l)e coiieeived 
 to have had any existence at any time was a purely national clKim, 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 agaiu-it Spain, and there is uol now nor can there be any individual claim for 
 indemnity against tlie L'niled States for said alleged acts by reason >'\ the treaty of peace 
 between the l'niled States and Spain of December 10, IS9S, or otherwise. 
 
 " Sixth. -That the averments in the petition and documents referred to and made pirts 
 thereof, and the history of events prior and .subsequent to the destruction of the battle- 
 ship Mainr clearly shows that the destruction of said vessel was at the time regarJnl as an 
 art of war. 
 
 " Seventh — 7'lial the suhjut mailer, namely, the destruction of the Maine, and all its 
 incidents, was finally settled and disposed of before the creation of this Commission : Firil, 
 by the action of the constituted authorities of the I'nited Slates at Washington and at 
 Paris ; Seeonilh/, by the provisions of the act of Congress of .March SO, 1S9S ; Thirdhi. as a 
 result of the treaty of peace between Spain ami the I'nited States of December 10, 1898. " 
 
 f The propositions of the Attorney-TJeneral are all referred to and answered in the 
 following argument, but as these poinLs were prepared befoie the brief of the Govern- 
 ment's counsel was filed, the order of discussion adopted herein is somewhat difTerent 
 from that adopted by the AtlornoyCieneral. 
 
 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. 
 
 X This point is answered in this argument under points sixth and seventh, pages 23 
 el setj., post. 
 
 § This point is answered as to the questions of exterritoriality under the Seventeenth 
 Point, pp. (H rl sr,/.. post, and as to the right of sailors to recover indemnity under the Six- 
 teenth Point, pp. h'i et seij., post. 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 7 
 
 "III. — That the Commission lias no jnrisdiction of the subject- 
 matter involved."* 
 
 The petitioners who have tiled 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 States; they allege that they have, 
 or had, claims against Spain which the United States has assumed: they 
 have invoked the aid of this Court to obtain iiu '' adjudication " thereof, 
 and they submit that the claims are just and within tlie jurisdiction of 
 this Court, whose duty as well as whose right it is to so adjudicate them; 
 and they have every confidence that this Court will promptly and 
 fearlessly adjudicate the just claims of American citizens, regardless of 
 any consequences which may ensue, even to the extent, if it becomes 
 unavoidable, of woundino; the sensibilities of a foreign nation. 
 
 The demurrers should Ijc overruled and in the absence of direct proof 
 that Spain was not res[)onsible, directly or indirectly, for the desti'uction 
 of the .]f((iiic. judgment should lie rendered for the petitioners to the full 
 amount of theirclaims. In siipiiort of their position the fidlowing points 
 are sidjuiitted on behalf of llie petitioners.! 
 
 * The jurisdiction of this Court to consider these claims is discussed under tlie dval 
 t'ouf [loints. pp. 8 '/ sf</., po.\t. 
 
 ■| This printed arsurneiit is nuiiuli' the substance of the sul)sciibing counsel's oral 
 argument before the Spanisli Treat,y Claims Commission on the demurrers at Washing- 
 ton, December ISth, litlh, iOth and 21st, 1901. It has been soniewnat len^jthened to as 
 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, 
 I'resiilent, Gerrit E. Diekema, .lames Perry Wood, 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 Ali'xander Porter 
 Morse, Charles F. Jones and Wm. E. Rogers, assistants; and for tlie claimants in the 
 following order: Charles Henry Butler, of New York, and Clifiord Walton, Benjamin 
 Jlicon, W. W. Dudle}' and Hilary A. Herbert, of Washington, 1>. C. At the close of the 
 argument an tirder was made permitting the Attorney-General to file a brief within one 
 week and Ihe 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 
 ag'ainst Spain for injuries arising' between 
 February 25, 1895, and April 11, 1899, and 
 Tv^hichthe United States ag-reed to assume and 
 adjudicate by the Seventh Article of the 
 Treaty of Paris. 
 
 'l"lu' statute of iliircli ■-', IHOI, iml (Uily cxprut-sly clotlu'd tliis Court 
 willi jurisdiction over, but also made it the duly of the Commission 
 to "receive, exiiiniiu' and adjudicate'' all such claims of citizens of 
 tiie United States of tiiis nature. The petitioners have hrougiit liieni- 
 selves within the letter and s|)irit of the statute, as well the evident 
 intention olConirrcss, liy aiicj;iiig in their petitions all the facts necessary 
 to liring (heir claims within llie jurisdictional limitations. 
 
 If their allegations are true they have claims against Sjiain and this 
 Court is hound to receive lliem, examine them, and atljiulicate them in 
 their favor; if their allegations are untrue the Court is ei|n;dly Imund 
 to receive the claims, examine them, and iwljudicate them against tiie 
 clainnmts ,i7id in favor of the United States. 
 
 Ill fact, the Court alrcaily has receiceil the claims, the Atlorney- 
 (teneral is asking tlie Court to examine them, and if the claims slxmld 
 be dismi.ssed for any cause it would necessarily be an (iiljni/icnUnii iiy 
 this Couit. 
 
 The Attorney-tieneral 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 th<'se claims, 
 and also bci-ause it was contrary to the intention of Congress in |iassing 
 the statute creating this Court, to confer sucli jurisdiction u|Hin it. There 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 9 
 
 is nothing either in tlie treaty, or in tlie statute, to iniiicate that such 
 were the intentions of the makers of one, or of the enactors of the other. 
 The terms used are general enough to incliule all claims which coukl 
 in any way be advanced by citizens of tlie 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 wliich do not come 
 within those conditions. If the claims arose between the specified dates, 
 and ever existed, or if thepefifl<jiierH alh-ije that they so arose and cxisff'(7, 
 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 anil (b) that the ques- 
 tion of Spain's responsibility being a question of fact cannot be raised on 
 demurrer as i^ 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 iu the act of March 3, liiOl. 
 
 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 statutoi-y 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 arc to be received, examined and ad- 
 judicated according to their merits, and the principles of e(|uity 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 bis 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 stated 
 the rules as fiivorably as he possibly could for the Government.* 
 
 lie must admit, of course, the converse of his own projjosition, 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 (.'?) occurred between February 
 2r,, ISli."), and April 11, IS'.iK, in (4) the island of Cuba. 
 
 The abstract of the petitions in the statement (ditic, p. 'i) 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, 
 wliicli took i)lace in Havana, Cuba, on I'Vluiiury 1.5, ISOS, 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 i.-; therefore 
 admitted unless it ajipears 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 ))y 
 competent authority;'" it is, of course, ajiparent from the petitions that 
 the rlaims as against Spain are not contractual in their nature. 
 
 U. The question of the responsibility of Spain for tlic acts ••oiii- 
 plaiiiod of cannot he raised on tht-sc dcniiirrers astlie |i<'ti(i(ins 
 sllHirienlly alleyo neylifjence as a traversihlo fact, and a {j«'ncral 
 
 * On page 1 of the brief referred to he says : 
 
 " The jurisdiction is special and limited in respect of (1) tubjetl-matler, {2) parlia, (8) 
 lime, and (4) ternlori/. 
 
 " First. T/if mibject-maller : The onlj- claims which the Commission is authorized to 
 ' receive, examine, and adjudicate' arc clnims for indeinnilv — existing claims for indem- 
 nity which Were primarily against Spain, and which have nut been heretofore diplomatic- 
 ally, judicially, or otherwise disposed of by competent authority. Contractual claims arc 
 not within its jurisdiction. 
 
 " Secoxd. T/if parlies: The parties must iiave been citizens of the United States at 
 the time of the acts complained of. 
 
 " TuiRU. The lime: The time when the claims originated must be a period between 
 the 25th day of February, 1895, and the llth of April, 1899. 
 
 " FoiRTii. The krrilory : The tiTritury in which the claims originated must be the 
 island of Cuba. 
 
 " All the.te conditions must be fulfilled and must appear nfhrmativ ely I'li the /tetitton 
 before the Commission can entertain jurisdiction of the alleged claims." (Treaty of Paris, 
 Article VII ; act of March 2, :9UI ; Uules of the Commission.) 
 
ARGUMENT OF CHAS. H. BUTLER IS MAINE CASES. 11 
 
 allegation, witliont stating tlie particulars showing the negli- 
 gence, is suflieient as against a demurrer for insutticiency. 
 
 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 demurrer.^, filed 
 December 1st, that the destruction of the 3faine was the cause of the 
 recent war with Spain. The claimants do not admit that the destruction 
 of the 3faine 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 
 3fai}ie. eliminates the question of Spain's responsibility for the destruc- 
 tion of that vessel from tliese 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 entertain these claims is as to the aiibject 
 mailer 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. Norfol); c£- W. R. R. Co.. 36 Fed. Kep., Iu2; 
 Muhile d- M. R. Co. vs. Crenshaw. 05 Ala., 666. 
 and many other cases cited in Abbott's Trial Brief on the Pleadings, page 269. And a 
 general allegation of negligence is equivalent to whatever degree of negligence is necessary 
 to sustain the pleading, 
 
 yohoH vs. Westerii R. R. Co., 15 N. Y., 444. 
 
 Rockford, cCy., R. R. Co. vs. Phillips, 66 111., 5.51. 
 
 " 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. 
 
Vi IIEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 cise jurisdiction over all claitns properly- 
 presented by verified petition is evidenced 
 by the act itself. 
 
 Tlie act of March 2, lOul, shows on its facu that it was the intention 
 of Congress to provide a court which should receive, examine and adjudi- 
 cate the flainis of all persons who should file petitions in accordance 
 tiierewith, as the petitioners have done, alle<ring 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 
 enableit 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 States can 
 be finally relieved, by the judgment of a court ofcompetent jurisdiction, 
 from liability for claims whicli do not exist. It would certainly defeat 
 the purpose of Congress if tliis 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, either by answer or demurrer setting 
 up tiie 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 lie lieneficial to tlie 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 surh 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 court existsfor the very purposeof ascertaining 
 what claims exist. 
 
 The benefits of the aci musi 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.—Cominissions and Courts similarly- 
 constituted, and possessing similar jurisdic- 
 tion, have always considered their jurisdic- 
 tion w^ide enoug-h to embrace all claims arising 
 out of, or in any -way connected with, the mat- 
 ters referred to in the org-anic act or treaty. 
 
 The extent of the jurisdictiou 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 ^jo.^^-^'J/// 
 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 subjectof 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 Sve 
 without prejudice to their presentation elsewhere. Tiie commission was 
 composed of .John Little, of Xenia, Ohio, for the United States, .lose 
 Andrade for Venezuela, and at first Mr. Samuel F. Phillips as thinl 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 C3untries to succeed Mr. Phillips. 
 
 The Conventions of December 5, 1885, and March 1.5, 1888, jn-ovided 
 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 have been presented to their Government or to 
 its legation at Caracas, before the 1st day of August, 18G8, and which 
 by the terms of the aforesaid Convention of April 25, 18GG, 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. H. Aspiu- 
 wall & Co. for certain bonds of the Government of Venezuela, and the 
 
 * " A court of limited jurisdictioa is therefore not necessarily an inferior court in its 
 technical sense, and it is said that tliose 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 tlie rule as to presumptions." 
 
 12 Encyc. of PI. and Tr., 159-161, and see numerous cases cited in the notes, 
 especially Den vs. Hammel, 18 N. 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 liud arLseu under the Convention 
 of 1857, between the United .States and New Granada, in whioh it was 
 held that bonds of New Granada were not claims within the terms of the 
 Convention, and therefore not witliin the jurisdiction of tliat Cinn- 
 mission.f 
 
 Mr. Little delivered the opinion for tiie X'enezuela Commission in 
 whicii a majority united, and it is tlierefore tiie otficial utterance of the 
 Commission. t The thirty-live pages of ojjinions in this case read as 
 though tla-y 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 wiiich 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 eflfect.g 
 
 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 tlie claims in character, it is diflicult to understand why 
 language to that end \v;is 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 wiiere 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 
 ownersiiip as to citizenship and the time of their origin were the only 
 questions which the Commissioners could consider and that they were 
 hound to assume jurisdiction of all claims, regardless of their character. 
 
 Tiie opinion refers to certiiiii cases under the Mexican Commission of 
 18G8, in which Sir Edward Thornton, as umi)ire, excluded certain cases 
 from the consideration of that Commission, on the ground of their char- 
 acter,! I)ut the distinction between these cases and the ones under 
 present consideration is seen at once by an examination of the treaty, 
 
 * This question is discussed here only from a jiirisdictiunal point. It is ngoin referred 
 to 83 it aflects the merit9 under the Eighteenth and Nineteenth Points, pp. 67 el itq.,pott. 
 
 f Moore's Arbitration, vol. 4, pp. SillO tt acq. 
 
 X Moore's Arbitration, vol. 4, i)p. .S616-3642; Mr. Finlay concurred, /J., 3642-3C51. 
 
 g Mr. Justice Story in Prigg vs. Pemia. (16 I'eL, 6)5); Lord I hief Justice Cockburn 
 in Qiiem vs. The Ouardiatu (9 L. Q. B . .IPS); Circuit Judge Dcndy in Dowell vs. Corjirell 
 (4 Sawyer, 228); Chief Justice MnrKhall in TTte XereiJe (9 Cr., 419), and many other 
 authorities. 
 
 Q Moore's Arbitration, vol. 4, p. ;I628. 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 15 
 
 for the character of the dainis 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 rniifractii 
 would not be embraced in that description.* 
 
 \Yhen the jurisdiction of the Mexican Claims Commission of is:59 
 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 jn-oceedings of the 
 Commission, was that the estent of jurisdiction must be determined by 
 the Commission itself and could be exceedingly broad, f 
 
 * On jiage 36'25, after citing UiiKed Slates vs. Dic/csou (15 Peters, 165) and Mhds vs. 
 United Slale.': [Jd., iia], Mv. Utile uses the following words peculiarly applicable to the 
 construction of the relinquishment and assumption clauses of Article VII. of the treaty of 
 Paris, and the jurisdiction of this Court over all claims which were not afrecled 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 tlcat 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 aa near that as the language aflfords — 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 (1S04) ownership was the only quali6caliou. It was com- 
 petent to present any claim before the commission against either State, provided it be- 
 longed to a cj//2e« of the other. In the treaty of 1834, between the United States and 
 Spain, a single cir'-umstance determined admissibility, to wit, that the claim had been 
 ' preferred by either party against the other.' Usually several of the elements are em- 
 braced in the terms of qualificatioa. 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 cUh.ens of the United States in consequence of their 
 vessels and cargoes having been lak-eii by the subjects of His Catholic Majesty dnrhg the 
 We icar 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 bythe 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 France 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 tlie 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 
 
K) liEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 Tlic mixed Commission organized under Articles VI. :uul X'H.df the 
 treaty between the United States and Great Britain, divided on the ques- 
 tion of jurisdiction, tlie American memhers, liowever, sustaininfj tlie 
 juiisdiclion of the Commission, Mr. Ciiristcjpiier Gore and llr. I'inlvney, 
 l)otli writing opinions.* 
 
 certiiin clniins liad, as the Mexican commissionera contended, been withdrawn from the 
 cognizance of the board. December 23, Mr. Webster in reply inclosed an e.\tract 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 convenlion was by the convention itself and the act of 
 Congress contidej exclusively to the commissioners, it was not considered to be the prov- 
 ince of the Department of Slate 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 llic 
 American schooner Topaz and the killing of her cajilnin and crew. In some of the cases the 
 dismissal of an officer was demanded, in others a reprimand, and in others yel an infliction of 
 punishment, and in at least one instance an assurance was iibked for that no disrespect to 
 the Hag 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 thellth of April last.' I'ndcr these circum- 
 stances the Mexican commissi jncrs, on .January D'l, 1842, formally inquired of .Mr. Web- 
 ster whether the reservation made by Mr. Kills ' positively excluded the personal inter- 
 est ' in the cases, and whether 'there only remain to be arrani;ed between the two 
 governments the subjects which relite to their Hag. 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 board 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 convenlion with that republic," said Mr. Webster, ' 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 duly, 
 therefore, like those of ether judicial bodies, are to determine upon the nature and extent 
 of its own jurisdictiim.as well as to consider and decide upon the incrila of the claims 
 which might be laid before it.' On this statement the personal claims in qiiestioo 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 .lune 21, 1811, 
 one of the claimants, named SanUingelo, requested him to direct the diplomatic represen- 
 tative of the L nited States in Mexico to asl; the government for certain papers which the 
 commission had on an equal division refused to demand. Mr. Webster declined to grunt 
 the re(|uest, saying that the functions of the Department of State in relation to the claims 
 were ^expressly limited by the convention to the transmission (u the board of commis- 
 sioners of such docnments as the Department may receive.' Subsequently, when the 
 request was renewed, he declared that the E.\ecutivc of the United States had ' no right 
 to interfere for the redress of our citizens who may suppose themselvej to have been 
 aggrieved by decisions of the commissioners under the convention with the Mexican 
 republic. Tlint bo ly is, in efTect, a judicial boily, and it belongs to its members alone to 
 determine the rights of claimantj! under the convention.'" 
 
 * Moore's International Arbitration, Vol. S, pp. 2277 <l itq., Mr. Gore says: " When 
 a complaint is brought before the Commissioners, the Board must take for granted that it 
 
ARGUMENT OF CHAS. H. I'.UTLKR IN MAINE CASES. 17 
 
 On tlie fourlh day uf the urgunKiit of the deiimrrers the PresidfUt 
 of the Commission asked tiie counsel of tlie claimants if they would 
 '• furnish reference to all cases in which a claim of an ambassador, for- 
 eign nnnisler, 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 uniiorm uf 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 lor tlie claimants asking them to find cases in which 
 jurisdiction has been taken, but the counsel for the Government should 
 have been asked to furnisli 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 anotlier and there lias been no 
 necessity of relcrring 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 uf 
 the General Armstrong against Portugal ;\ Rice against Mcxico;X Mc- 
 
 13 witliiii their competency or i-eler it to 3ome otiier tribunal to determine the question." 
 Subsequently, when the Enfjlish C\-mniissioners withdrew. Mr Gore filed au opinion ia 
 which he declared that "To refrain fi'oiii acting when our duty calls us to act is as wrong 
 as to act svhere we have not autliority " I Moore, 22i10). 
 
 • See cases of Balthaore (U. S. vs. Chili); C/tesapeake (U. S. iis. Great Britain); General 
 Armstrong (U. S. vs. Portugal); Allaehe Huesken (U. S. vs. Japan): Water Witch (U. S. vs. 
 Paraguay); Sailors of the Corvette Ditpliex (France r.i. Japan); Col. Margery (Great Britain 
 <'4\ China), and other cases cited under the Sixteenth Point, pp. 52 et seq., post. 
 
 t The Crew of tbe Geueral Arm.stroug-. 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 oo«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. 
 
 X Rice's case ; in which $4,000 was awarded by the Mexican Treaty of July 4, 
 189B, to a United States Consul for unlawful arrest, and from the opinion it would appear 
 that it was exclusively for sixty hours' detention (4 Moore's Int. Arb., 3248). 
 
18 BEFORE tHE SPANISH TREATY CLAIJtS COMMISSIOlT. 
 
 Keown against United States; * the U. S. Consuls in Mexico against 
 Mexico ; f Ulrich against Mexico. % 
 
 These few cases are citeJ not because they are analogous as to facts or 
 merits to the claims at bar, but simply to show that no doubt lias ever 
 Ijeen ex])ressed as to the right of intcrnatioual or domestic tribuiuds to 
 take jurisdiction of claims against foreign governments because the 
 claimunt held fiduciary or military positions under the Government, or 
 that such fact in any way affected liis 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 
 tbis nature is upon tbe moving* party, and all 
 tbe presumptions are in favor of tbe 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 be absolutely remediless and unalile to 
 prove their claims before any court; they would lind themselves deprived 
 of the remedy which Congress has given to all persons having claims 
 against Spain, notwitlistaiuliiig tlie 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 ])re8umpti()ns in cases of tiiis 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. 
 
 * McKeowD'.S case ; a shipcarpenter in the service of the United States Govern- 
 ment diirini: thf Civil War was nrrestoil l)y his commanding nflicer and subseqncnlly dis- 
 charged after a confinctnt'nt of Ihirtevn days ; lie was a British fsuhject, and after the war 
 presented a ilaini to the mixed commission at Washington under the treaty of IS.1 and 
 obtained an award fur il,-167 against the United States (Moore's Int Arb., 3211, and see 
 other cases referred to in note on same page). 
 
 f U. S. Coil.SUlS ill Mexico. Before war was declared between the United 
 States and Mixico, lonsuls and vice-consuls of the Initid 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 valiil by the Commission of 1 f>M to adjudicate claims of its citizens 
 against Mexico assumed by the United States under the treaty of 1848 (4 Moore's Int. 
 Arb., 8836). 
 
 \ Ulrich'S ca.se' was a claim against the Mexican Minister, and was allowed by the 
 .Mexican Commission of 1851, which adjudicated claims against .Mexico belonging to 
 ciliiens of the United ."stales assumed by the United States under the treaty of 1848 (4 
 Moore's Int. Arb., »4»4). 
 
ARGUMENT OF CHAS. H. BL'TLEU IN MAINE CASES. 19 
 
 Tlie ])resuraption must also exist that Congress did not intend to pro- 
 vide a tribunal of this nature, which sliould not have a jurisdiction 
 extensive enough to coverall claims whicli would be presented to them. 
 
 To this extent the demurrer and moticui to dismiss are practically the 
 same, and subject to the same rules of pleading and practice.* 
 
 Tiiis Court was created solely to assist Congress in appropriating 
 money to discharge the obligaticnis assumed liy the treaty of 18'.tS. 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 c<ndd have arisen. Had Congress seen fit to 
 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, and very properly so, for special 
 courts to be created so as to relieve Congress from the necessity 
 of investigatinff claims of this nature, whicli interfere with the 
 legislative duties of its members, and also so that Congress may be 
 assured of the ju-tice and legality of the claims, and thus be enabled to 
 appropriate money for the ])ayment of all just claims, aiul not to he sub- 
 jected to denuuuls of petitionei's f(U- the payment ol claims without 
 foundation. 
 
 In fact, this Court simply acts as the conscience of Congress to guide 
 it in making ajiiiropriations. Congress expressed by the enactment of 
 the statute of March ■■?, 1901, the wish to be informed of all claims as- 
 sumed bi/ l/ir Vnitcit Slates iiiidcr Article VII. of the treaty, and created 
 this Court for tliat purpose. This Court cannot jmy 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. 
 
 * " .\ raotioD to terminate a suit against tVie will of the |iIaintifT can generally be 
 niaiie only by a jiarty to tlie iiroceediiiij; and the burden lies upon him to see that all the 
 proceedings authorizing such a termination are substantially eon]plied with." 
 6 Encycl. of Pleading and Practice, S75, under Dismissal. 
 "A motion to dismiss for lack of jurisdiction is apinopriate oidy where the defect 
 appears on the face of the record. More correct practice requires the objection to be 
 taken by answer or demurrer, or by a rule to show cause." 
 
 fi Encycl. of Pleading and Practice, S87, under r)i,sMissAL. 
 The motion is to be determined on inspection of the bill only ; the Court is not 
 authorized to consider the answer and proof. 
 
 Id., p. 892, and numerous cases cited and notes on p. 876. 
 Bail vs. Bent, 43 Vermont, 44. 
 Bliss vs. Smitti, 42 Vermont, 198. 
 Mimre vs. Helms, 74 Ala., 368. 
 Jewell vs. Lanwreavx, 30 Mich., 136. 
 HoUomnj vs. Freeman, 22 111., 197, at p. 2iil. 
 " A bill is demurrable if want of jurisdiction appears upon the face Oureof, otherwise 
 a plea is proper." 
 
 Steplienson vs. Davis, 56 Maine, 75. 
 
20 BEFORE THE SI'ANMSH TREATY CLAIMS COMMISSION. 
 
 The pi-C'sumptions must be that Congress having covered every class 
 of claimants wlien 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 tiie most entitled to the consideration 
 of national symjiathy and national indemnity of all the claims presented 
 to this Corumissioii.* 
 
 II. 
 
 AS TO THE MERITS OF THE DEMURRERS. 
 
 FIFTH. The claims of the petitioners should 
 be alloived 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 arcording to the strict rules of the common law and of statutory 
 construction, claims might be presented to it for a<ljudication which 
 could not be allowed unless the Court found that the United States was 
 bound in good conscience to indemnify the clainnmts 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 tin- claims, as upon the 
 demurrers it is necessarily admitted tii.it tiie claimants are citizens: that 
 they sustained the damage complained of; and that such damages were 
 caused by the negligence or wrongdoing of the S|)anish Government; 
 the question of amount is, of course, not now i)erore the Court. 
 
 2. The claimants are entitled on *'«li.' |.iin< ipi.s of equity " to 
 recover from the United States whatever the United Sliites could have 
 demanded on their behalf from Spain at the time that the treaty was 
 made. The claimants were not present. The Commissioners appointed 
 by 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 
 
 * Tlio fintt Bcclion of the Act of March 2, l!)Ul, creating this Court, is quot«d un 
 page S of this brief, antr. * 
 
ARGUMEXT OF CHAS. H. BUTLER IN MAINE CASES. 21 
 
 forget to include or intentionally omit any claims which conid 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 tlie conclusion of treaties, and, 
 therefore, the rights of individuals must give way for the sake of 
 national peace: but the CTOvernment, in making peace for the good of 
 the nation, must not. and will not, forget the individual riglits of its 
 citizens. Congress unquestionably intended, in especially including the 
 principles of ecjnity 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 "tlie priiK-lple.s of iaternatioiial Iuav." 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 heretolore 
 been made the basis of international demands and payments, as such 
 precedents are the 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. But this ciunot 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 the United States; 
 that it is for the Court to determine what i)rinciiiles 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 our 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, statitte 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 on behalf of a sailor when killed or ill 
 treated in a foreign country has been purely a national matter, and one 
 
 • In the Puquette Habana, U. 3. Sup. Ct., 1900, 1 75 U. S.. 677, Gray, /., says (p. 700) : 
 " For this purpose, where there is no treaty, and no controlling executive or legislative act 
 or judicial decision, resort nunt be had to customs and usasjes of civilized nations ; and as 
 evidence of these, to the works of jurists and coniuientators, wlio, by 5-ears of labor, re- 
 search and e.xperience. 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, 
 
 milon TS. Giiiyol, U. S. Sup. Ct., 1895, 159 U. S., 113, Gray, ./. 
 
 Fremont vs. United States, U. S. Sup. Ct., 17 Howard, 542, 517. 
 
 The Scotia, U. S. Sup. Ct., 14 Wallace, 17o, 188. 
 
 Respublica vs. DeLongchamp, Sup. Ct.Penna., 1 Dallas, HI, 116. 
 
 Moultrie vs. Hu,it, N. Y. Court of Appeals, 23 N. Y., 394, 396. 
 
22 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 which the Goverumeiit woiiKl 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 (hat the Government was 
 obliged to make such claims on behalf of those who suffered by tlie 
 Maine, and that if such oliligatiori did not exist against this Govern- 
 ment to make tlie deniaiid 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 
 jurisiiiction over nearly every other claim which has been tiled; the same 
 rule Would er|ually a]>ply 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 arc, 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 tiie 
 claim. It is sometimes inadvisalde to do so for political reasons ; sometimes 
 the weakness of the State whose citizens have suffered injury prevents their 
 claims from being iisserted with the vigor necessary to enforce them. 
 The question in these cases, however, for this Court to determine, is what 
 the Government could have clone in regard to these claims when the 
 Treaty of Paris wa.^ 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 dei'liiied to ])resent them. 
 
 If IhisCourt finds that on any previous occasions, be they fewer many, 
 the United States demanded and collected indemnity from foreign nations 
 for claims 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 i)riti('iples of equity 
 an<l of international law, to make their award in favor of the claimants. 
 
 'I'li.it t lie United States has made such demands, collected such in- 
 demnity. ;ind so applied the anumnt is beyond question. See cases of tlie 
 Baltiinorc, Wyoininy, Water Witch, VirginiK.s, (lenenil Armiilniiig, At- 
 tache Hueskin, and other cases c'xtnA under other points.* 
 
 Counsel for the Government in their brief advance the proposition 
 that in the Baltimorf, Udtrr Witrh and other cases the Government of 
 its own motion demanded the indemnity and was not requested to do 
 80 by the sufferers themselves, and claimed that for this reason it ean- 
 not be asserted that a claim existed. In fact, they i)raetically clnim 
 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 stated in another point, f that 
 the United States fornuilly, through the I'resident, Secretary of State 
 
 * Sec SixtecDlh Point, fp S2 tt Mq.,pott. 
 t See Nineteenth Point, pp. 75 tt in]., pott. 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASfeS. 23 
 
 and Minister Woodford, asserted to Spain tliat it would expect Spain 
 to make siicli reparation as one civilized nation should make to another, 
 and this statement relieved tlie 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, 
 othervrise it is untenable. 
 
 Tl.c Attorney-General based the motions to dismiss chiefly ujjon 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 I'act and two of which are conclusions of law, as follows- (1) 
 Spain was responsible for the destruction of tiie Maine; (2) such destruc- 
 tion was the cause of the war; (3) the treaty of peace oltliter.ited all claims 
 for matters causing the war and tlierefore claims arising from the de- 
 struction of the ^^(line " ])assed into oblivion " and were not amongst the 
 claims of its citizens against Spain which the United States assumed iiy 
 Article VIL of the Treaty of IS98; (4) tliat sncli 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 
 of his proposition, as it cannot under any cinninistances 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 iact responsible 
 therefor. 
 
 It is needless to say that the claimants not only admit, for they assert, 
 Spain's responsibility for 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 tiie 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 Uoited States referred to the cases en bloc 
 and the umpire to whom was submitted the question as to whellier 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 Government 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 Arbitration, p. 1376.) 
 
24 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 The chiinuints having asserted in their verified petitions that Spain 
 was responsible far tlie destruction of the Maine, and the Attorney-Gen- 
 eral having also set it up as tlio l)asis of these motions by asserting that 
 it was tile cause of the war, there can be no question that these claims 
 are withiu the jurisdiction of this Court unless they were obliterated by 
 the treaty of peace and not assumed by the United States. 
 
 The position taken by all the counsel for the clainuints in regard to 
 the destruction of tlie ^fain^^ has been consistent throughout, and is dis- 
 tinctly stated under the ne.Kt point. The various positions taken by 
 the counsel for the Government has heen so inconsistent witli each otiier 
 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 Maine was the cause of the war, and on more 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 Goverinnent the statement was made tiiat the de- 
 struction of the J7rt('«e was an aet ol war; during the closing argument 
 there was open discussion in the court-room between two of tiie (iovern- 
 menfs counsel as to whether it was an act of war or merely one of the 
 causes of the war, the result of wliich was the withdrawal of the "act of 
 war " theory and adiieience to the "cause (d" war " theory. 
 
 Ordinarily upon argument of a demurrer the statements contained in 
 the petition are taken as true, without in any way reiuleriiig liie 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 lie 
 could not sustain his demurrer without going outside of the record and 
 so instead of relying upon the allegations in the petitions, he alleged 
 e.xtriiiNh- laots 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 eflfect of admitting Siiain'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 Sjianish Government without laying himself ojien 
 to further charges of inconsistency. The (iovernment's brief, therefore, 
 endeavors to qualify the implieil admissions by charging the American 
 people with having declared war against Spain, not because it lilew up 
 the Maine, but because the American peojde believed that Spain was re- 
 sponsible therelor; 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 
 actiudly proved that Spain was responsible for such destruction. 
 
 ll is a more serious matter, however, than the Attorney-(ieueral 
 thinks to charge the American people, the Congress of the United 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 25 
 
 States aud President McKiuley 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 ofEered if the 
 responsibility were proved.' 
 
 * 
 
 SEVENTH.— It is not an historical fact that 
 the destruction of the Maine -was the cause of 
 the w^ar; this appears from the legislative his- 
 tory of the declaration of war \rith Spain, and 
 on demurrer no facts can be asserted except 
 such as are within the judicial know^ledg-e of 
 the Court; the action of the executive and 
 political departments of the Government 
 clearly indicates that the war of 1898 w^ith 
 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 
 
 * On page 4 of the Government's brief it is said; " We do not intimate that the destruc- 
 tion of the Maine vras 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 tliat 
 dreadful catastrophe. Tliis 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 belieeed 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 necessarily 
 admitted. 
 
26 BEFOUE 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 Prtsidcnt of the United States, and the cor- 
 respondence between the United States and the Spanisli fioveninieut 
 through the regular diplomatic channels. 
 
 The destruction of the Maine occurred on February 15, 18!t8. Long 
 prior thereto tlie President of tlie United States had called attention to 
 the conditions existing in Cuba and had declared that if they were not 
 ameliorated by the Spauish Government it would be necessary for the 
 United States to intervene and pro(ect its interests in tliat island.* 
 
 Immediately after the destruction of the Maine a Naval Court of 
 Inquiry was appointed pursuant to statute, which, on JIarch 21st, 
 reached the conclusion that the destruction of the Maine was not due to 
 negligence on tlie part of the ofBccrs or crew, but was caused by the ex- 
 plosion of a submarine mine, but no evidence had been obtainahlc fixing 
 tlie blame ; on March 28th, said report, togetiier with the testimony, was 
 transmitted by the President of the United States to Congress-f 
 
 On April 11, 1808, the President of the United States transmitted a 
 message to Congi-ess on the relations of the United States to Spain by 
 reason of the warfare in the island of Cub;i. in which message he referred 
 to the revolution in Cuba, wliich lie declared had begun in February, 
 1895, and had reduced Cuba to want, paralyzed its commerce and seri- 
 ouslv involved the coinmi'rci;il and poliiical interests of the United 
 States, t 
 
 ♦ Sec First Annual Message of President McKinley, transmitted to Congress Decem- 
 ber 6, IS97, Richardson's Messages, Vol. X., pp. 127 rf «f</. 
 
 t "The 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 J/aiiie upon any person or persons. 
 
 I have therefore directed the finding of the Court of In(|uiry and the views of this 
 Government thereon be communicated to the Covernment of Her Mnjesty the t^ueen 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, fiSth Congress. 2nd Ssssion, Mirch 28th, 1898. 
 
 X" The forcible intervention of the United States as a neutral to stop the war occord- 
 ing to the largo dictates of humanity and following many historical precedents where 
 neighboring Slates had intcrlered to check the hopeless sacrifices of life by internecine 
 conflicts beyond tlieir borders is justifiable on rational grounds. It involves, however, 
 hostile constraint upon both the parlies to the contest as well to enforce a truce as to guide 
 the eventual settlement. 
 
 " These elements of dangtr and disorder already pointed out have been strikingly 
 illustrated by a tragic event which has deeply and justly moved the American [leoplo. I 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 27 
 
 lie tlieii summarized the grounds for intervention, first, in the cause 
 of humanity; second, tliat we owed it to our citizens in Cuba to afibrd 
 tiieni protection and indemnity for life and property whicli no Govern- 
 ment there can or will afford; third, tn [irevent 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 statu 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 m C!uba 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 loth, isiis, the Committee on Foreign Relations of the 
 United States submitted a report relative to affairs in Cuba,t in which it 
 
 have ali-eady IransmiUed to Congress tlie report of llie naval court of inquiry on the de- 
 struction of the battlesliip Maine in the harbor of Havana during the niglit of the lolli of 
 February. The destruction of that noble vessel has tilled 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 of 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 e.\terior 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 Afuine 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 S[ianish Government cannot assure safety and security to 
 a vessel of the American Navy in the harbor uf 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 retpiire in the malterof the Maine. The reply above referred to of the 
 31st ultimo also contained an expression of the readiness of Spain to submit to an arbitra- 
 tion all the differences which can arise in this matter, whicli is subsequently explained b^' 
 the note of the Spanish Minister at Washington of tlie 101b instant, as follows : 
 
 " ' As to the question of fact which springs from the diversity of views between the 
 reports of 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. 40.5, 55th Congress, 2d Ses- 
 sion, April nth, 1898). 
 
 * Senate Document No. 230. 55th Congress, 2d Session, April lllh, 1898. 
 
 •|- 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 rofi-rred to many acts of atrocity on the part of tlie Spanisli Govern- 
 ment. That report declares that the destruction of the Maine was only 
 a single incident iu the relations of this Government with Spain, and 
 tliat '■ if tliat calamity had never happened the i|uestions between the 
 United States and tlnit Government would press for immediate solu- 
 tion"; that the unfortunate condition of Cuba and the continuance of 
 the insurrection in tliat island was due to Spanish misrule: that such 
 (lovernnient liad violated the laws of civilized warfare in the conduct of 
 her military operations, slaughtered prisoners after their surrender, mas- 
 sacred the sick and wounded insurgent soldiers and their )diysicians ami 
 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 otiicials who held him in custody unwarranted by tlie 
 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 jiroperty 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 nepartment of State against Spain, for indemnity 
 for this destroyed property then amounted to al)out sixteen millit)n dol- 
 lars ; that Spanish military ofticers had levied contributions upon Amer- 
 ican planters as the price for the preservation of their estates and the 
 continuance of tiieir agricultural operations. Annexed to the report, 
 which consists of over GOO pages, are statements of many claims filed 
 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 tiie resolutions which were 
 adopted on April 20th. IS'.i.S, with the addition of the fourtli section dis- 
 claiming the intention of acfpiiring 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 Miiine. The 
 Attorney-General's proposition that the destruction of tiie Mniur was 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 
 Miiiiif causing the war without having the sjime effect as to every other 
 
AEGUMENT OF CHAS. n. BUTLER IN MAINE CASES. 29 
 
 act nu'iitioued in the Committee's Report ; tliat is, the imprisonment of 
 Ruiz, tlic execution of Lopez, and the acts and depredations which were 
 the basis of the chiims filed hy American citizens with the State Depart- 
 ment, and amounting at tlie time of the report to over sixteen million 
 dollars, all of which are now before this Court for adjudication.* 
 
 This joint resolution was passed by both Houses of Congress on April 
 I'.ith: it became a law by approval of the President on Aprir^O. What sub- 
 sequently transpired appears from the President's message transmitted to 
 Congress on April v'o, 1 S'.IS ( Cong. Record, p. 4348), 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 Stateshad terminated diplomatic relations 
 
 * Tlie resolutions are as follows: (Tlie preamble anj first, second and thiril reso- 
 lutions are identical as recommended and as adopted ; the fourth resolution was added 
 after the report was received. 30 V. S. St. at L., p. 738). 
 
 [Public Resolution— Nd. 21, 30 U. S. Slat, at L., p. 738.] 
 
 .JOINT RESOLUTION for the recognition of the independence of the [leople of Cuba, 
 demandint; that the Government of Spain relinquish its authority and government in 
 the island of Cuba, and to withdraw its land and nav.al forces from Cuba and Cuban 
 waters, and direetins the President of the United States to use the land and naval 
 forces of the United States to carry these resolutions into eflfect. 
 
 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 
 Congress of April eleventli, eighteen hundred and niuety-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 
 be, free and independent. 
 
 Second. That it is the duty of the United States to demand, and the Government ot 
 the United States does hereby demand, that tlie Government of Spain at once relinijuish 
 its authority and government in the island of Cuba and withdraw its land and naval forces 
 from Cuba and Cuban waters. 
 
 Third. That tlie President of the United States be, aud 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 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 couutries, and that all oflicial communications between 
 tlieir respective representatives eeased tlierewitli.* 
 
 'i'lie President also referred to a note addressed to the United States 
 Jlinister at Madrid by the Spanisli Minister of Foreign Affairs that the 
 (loverninent of Spain had treated Die reasonable demands of tliis Gov- 
 crnnieut as measures of hostility and liad 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; 
 he further stated that lie had been constrained in exercise of the 
 jjower and authority conferred by the resolutions to i)rnclaim a blockade 
 of a portion of C'ul)a, 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 S]iain. 
 
 On April 25, ISltS, Senator Allen introduced a joint resolutionf 
 declaring the existence of a state of war since the lolh day of Februarii, 
 IS'.iS, between the United States and Spain, which was committed to tiie 
 Committee on Foreign Relations. After the receipt by the House of IJep- 
 resentatives of the President's message aforesaid, there was presented from 
 tlie Committee on Foreign .Vffairs of that ijody an aclj declaring that 
 war exists between the United States and the Kingdom of Spain since tiie 
 21st day of April. IS'.IS, including said date. 
 
 Tiie Congnssinnal Rerord shows that there was some ([uestion raised 
 as to whether the title of tlic act was co-extensive witii it.s terms, and 
 thereupon the statement was made that the bill had been drawn by the 
 Attorney-General of the United States. 
 
 The act as i)assed by the House, and immediately transmitted to and 
 passed by the Senate, declared that war existed and had existed since April 
 21, 181t.S, including said day.S and this date was adopted notwithstanding 
 the fact tiiat there were tlien pending in the House of Itejircsentativcs, 
 and in tlie Senate the resolution introduced by Senator Allen, and other 
 resolutions to tlie effect tiiat war be declared to exist from the l.">th day 
 of February, 1808. 
 
 ♦ See also U. S. Foreign Relations for 1898, pp. 761 t( leq. 
 
 t S. U., 188. 
 
 X H. U., |0,08fi, C011.-7. litcord, 42.i2. 
 
 § Chap. 189. — An Act Derlariiiy llial irar (z'uh beliecen iheCiiiled Slates of America anil 
 the h'iriffdom nf Spaiti. 
 
 I3e it enacted li\J llu Senate and Hniutc of /ii/iicMHtatiia of the L'nited Slain of America 
 in Conffreu aMcmbltd, First. Tliat war be, and the same is hereb\'. declared to exiat, and 
 thnt war has existed since llie twenty first day of April. .\nno Domini eii;litcen liundred 
 and ninety eiijht, including said day, between the l'nited Slates of .\merica and the King- 
 dom of Spain. 
 
 Second. That the President of the Tnited States be, and he hereby is. directe'] and 
 empowered to u^c the entire land and naval furces of the l'nited States, and to rail into the 
 actual service of the l'nited .'states the militia of the several Stales, to such extent as 
 may be necessary to carry this Act into effect. 
 
 Approved, Aprii ir, l^'.is (SO L'. S, Slut, nt Large, p. 361.) 
 
ARGUMENT OF CHAS. U. BUTLER IN MAINE CASES. 31 
 
 The act was prepared by the Attornej'-General and passed by both 
 Houses of Congress, and the care taken to decLvre that tlie war existed 
 from the 21st day of April, inditding said day, is evidence on tlie 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- 
 mand of the United States to withdraw from the island of Culia and had 
 treated that demand as a hostile act, and that Spain herself hud taken 
 the initiative in declaring war not only by the manner in which the de- 
 mand was received but by subseipient acts which could only be considered 
 as those of war. 
 
 The ]iroposition that tlie destruction of the Maine was the cause of 
 the war with Spain has been advaTiced by the Attorney-General regard- 
 less of the awkward position in which it places the executive and 
 legislative departments of tliis Government, as one of the most im- 
 portant princi]ib's of international law, which this nation is Ijound to 
 support. 
 
 Every department of the (Joverument 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 nj)on record that the political depart- 
 ments of this Government violated the principle of international law to 
 which this country is comiriitted above all others. 
 
 The Attorney-General's position, therefore, tliat 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 arbiti'ate a question in dispute between them and to respond to any 
 award resulting from sucli arbitration, but that within three weeks after 
 such ott'_'r 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 ia 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 jiast 
 four years to disassociate the war with Spain with the destruction of the 
 Maine, should come forward and, as a means of avoiding liabilicy 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 nrbitrate the question' of liability 
 therefor. 
 
32 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 EIGHTH. A treaty of peace does not, under 
 the principles of international la'w, neces- 
 sarily obliterate the claims of citizens of either 
 country ag-ainst the other, even thoug'h 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 
 :iltenii>ts to support his demurrers are based ui)oii tiie proposition tliat 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 wliic-li lias boon 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 
 nianner. affect the relations of the United States with those of its citizens 
 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 I'nitcd 
 States by the Constitution. 
 
 The leading authorities on international law, however, do notsui)port 
 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 iti 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 comi)etent through its treaty-making ]iower, and 
 the exercise of the right of eminent domain, to make a treaty with anotiier 
 government, whether such treaty be of peace or of any other nature, 
 containing stipulations by which the claims of its citizens are satisfied 
 and obliterated as against such other government. It also maybe true 
 that in the absence of constitutioual provisions protecting them, the 
 citizens' only opportunity to obtain compensation for the claims thus 
 
ARGUMENT OF CHAS. II. BUTLER IN MAINE CASES. 3'^ 
 
 sacrificed is tliroiigii the voluntary act of tlieir own government, a.s tiie 
 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. 
 
 Willie, 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 claims 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-General's proposition annnints to this: Had tlie destruc- 
 tion of tlie Maine been 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 Ijceu declared 
 with a distinct statement in the declaratory act 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 be under no legal or moral 
 oliligation whatsoever to satisfy its own citizens for whose sake the war 
 was undertaken, and wlininoiv than any (Jther persons would be entitled 
 to indemnity. 
 
 If the .\ttorney-General correctly states the rule, the greater the loss 
 to the citizen, the more flagrant and pronounced 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 the Alabama claims, and had it 
 been necessary for the United States to resort to warlike methods to 
 obtain the indemnity demanded therefor, the fact that the war had been 
 waged to I'oUect those very claims would, under the Attorney-Generars 
 proposition, relieve this Government from all obligation to indemnify 
 the claimants. 
 
 Daniel Webster, while a Senator of the United States, delivered a 
 si)eech on the French Spoliation Claims, in which he reduced to a com- 
 plete absurdity the proposition tliat a war waged until peace is obtained 
 obliteiates the claims connected with its caitses.* 
 
 In fact, according to the Attorney-Generars proposition, all that 
 claimants against a foreign government, whose claims are in any way 
 
 * "The mere fact of war can never extinguish any claim. If, indeed, claims for indemnily 
 be the professed ground of war, and peace be afterwards concluded without obtain- 
 ing any acknowledgment of the ri;^'ht, 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 huld that the claim itself was extinguished by the very war which 
 had compelled its express recognition. Now, whatever we may call that state of tilings 
 which existed between the United States and France from 17'.i8 to 1800, it is evident that 
 neither party contended or supposed that it had been such a state of things as had 
 e.xtinguished individual claims for indemnifications tor illegal seizures and confiscations" 
 (4 Webster s Works, 163; 2 Wharton's Int. Law Dig., p. iui). 
 
34 BEFORE T)tE SPANISH TREATY CLAIMS COMMISSION. 
 
 directly or remotely connected with causes of Wiir, can expect to receive 
 on the conclusion of ii war waged on their behalf, is to be told that their 
 wrongs have been avenged; their flag floats over a few thousand more 
 scjuare miles of territory than it did before the war; the offending Gov- 
 ernment lias been punished l>y loss of life and teriitory, and with the 
 return of jieace, the claims for which they sought indemnity, and which 
 their own government was bound to assert, on their beiialf, 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 tlieir claims to obtain peace liy surrendering them, is not bound to 
 iMdeinnify them in any manner whatever. 
 
 The Attorney-General has entirely confused the international relations 
 of the Governments makini; the treaty and the rigiits of the citizens 
 whose claims are sacriliced, and while the autiiorities which he cites might 
 sustain his position, that as between Oover7iments the causes of war pass 
 into ol)livion to such an extent that neither Government can make a de- 
 mand upon the other (rovernment for tiie 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, wiiom he cites, expressly declares (loy) that "'the 
 peace does not affect private rights which had no relation to the war," and 
 the balance of that learned jurist's opinion on this subject comi)lotely sus- 
 tains the claimant's jiosition. Dana's Wheaton declares that the treaty of 
 peace does not extinguish claims founded ujwn debts or injuries sustained 
 prior to the war. 
 
 In (act, Section 5:58 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, lilve thatof declaring war, depends u|ion the niiinieipal 
 constitution of the State." 
 
 And in Section .5:i'.), Mr. Wheaton declares: "The jiower of making 
 treaties of peace, like that of making otiier 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 state of 
 amity, and, in the absence of treaty stipulations, to intercourse on the 
 old basis, and that the effect of a treaty on all grounds of coni|)laiut for 
 wiiich a war was undertaken is to abandon them, but he •lUaliHes the 
 statement with the assertion by a i)ractical admission that sucii is not 
 the case as to private rights.* 
 
 * " Sucli is llie cnse ns fir «» imblic liglils iiri' cuncorncd. Ittit privnle ri);hu<, I lie pros- 
 eciilion of which \a inlvrriiplvd by wnr, iire ri-vive>l by peace, alt hough iiKthint; may be 
 said upon the subject ; fur a pence is a return ti> n normal Mliileof things, and private righto 
 depend not so much on concessions, like public ones, as on common views of Justice. And 
 here wc 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 cloims— pri- 
 vate and not political— of each government upon the other existing before the war " 
 (WooUcy's Introduction to the Study of Int. Law, 6th Ed,, pp. 268 tl teg.). 
 
ARGUMENT OF CHAS. II. BUTLER IX MAINE CASES. 35 
 
 There are but few countries in wliicli the right of tlie private citizen 
 to inst compensation for his property taken for public use is protected as 
 tiiovoughly as it is in the UniteH 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 tlif authorities cited liy 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 of the war. Some of the 
 authorities do not discuss the (|uestion of the obliteration of such claims, 
 but simply confine the expression of their views to a positive assertion 
 that idaims unconnected with the war su''vive a treaty of peace, and are 
 unaffected thereby. 
 
 Phillimore (vol. 3. od editi(ni, )). 8i;T) says tiiat if a war should happen 
 to have been waged on aci'ouiit 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 
 evideutlv shows that the remission has got to lie in some way found from 
 the terms of the treaty: it simply says that the presumption mi(jhf. he 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 : suidi a proposition is not necessarily the 
 converse of, or deducible from, the other. 
 
 In the case of the Mollif, cited on the Attorncy-tieneral's brief (1 Dod- 
 son's Adm. Rep , oft-i). Sir W illiam Scott (I^ord Stowell) did declare that 
 "when a treaty of peace has lieen concluded the revival of any griev- 
 ances arising before the war comes with a very ill grace and is by 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 i)resumed that if is not intended to bring 
 them foiwaid at any future time." 
 
 This, like I'hillimore'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 
 countrv, that a treaty of peace utighf, from a moral standpoint, and for 
 the sake of subsequent friendly relations between the two countries, to 
 
3G BKKORE TlIK SPANISH TKKATY CLAIMS COMMISSION. 
 
 cnipliiitically dispose of all claims « liicli were in any way connected with 
 the w;ir, in order to prevent tlieir being revived, and possihiy becoming the 
 basis of bitter diplomatic controversy, and even of renewed hostilities. 
 
 The fact that these authors have urged the insertion of articles in 
 treaties of peace ]iosiiivi'ly releasing all cbiiins connected with the 
 causes of the war, clearly indicates that the |)roposition asserted by the 
 Attorney-General is not a juinfiplc i>f international hiw which has be- 
 come so universally accepted tliat it could in any way be liinding upon 
 citizens of tiie United States when pi-operty 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 throug-h the treaty- 
 making- power of the rig-ht 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 liaiul in 
 hand with the right of their government to confiscate and sacrifice their 
 claims against another government for the jnirposo of concluding a treaty 
 of peace; and this ajiplies to all claims, including those for which the 
 war was waged. 
 
 The principle that ]irivate projjcrty 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 iiased. It far ante- 
 dates the Constitution: it rests upon such a solid foundation that tiie 
 framers of the Constitution did not consider it necessary to incorporate 
 it in the instrument as originally prepared. In fact, the liill of Higlits, as 
 the first ten amendments of the Constitution arc called, was only incor- 
 porated in the Constitution in order to satisfy the demands of some of 
 the State Conventions which ratified it. Many people believed that the 
 enumeration of the various rights specified in those amendments might 
 be prejudicial to those rights in their broadest conception, and many 
 writers on constitutional law have considered that the ado|)tion of the 
 amendments, so far Ji-s alTording protection to the rights and liiierties of 
 American citizens therein enumerated, was unnecessary.* He that as it 
 may, the principle that private rights cannot in any way be sacrificed for 
 
 • "<<"e 1 Story's CoinnicnUiries. g;5 SOO-ao.'i, piiji-a •>]' 'i tnj. 
 
ARGUMENT OF C'lIAS. H. BUILKH IN MAINE CASES. 37 
 
 the public welfare is one of the foundation stones uiion whieh this (iov- 
 erntnent is built. 
 
 In W(ire\s. Hijltun* in which live of the judges delivered opinions, 
 Mr. .lustice Chase, in the leadin^f opinion of the Court, lield that 
 the Congress under the Confederation had the power to sacrifice 
 rights and interests of private citizens in order to secure the .'^afety 
 or jirosperitv of tlie public. As the treaty of jieace with (!reat 
 Britain of 1?S.) was under consideration, he could not base his views 
 as to tlie necessity of indemnifying citizens whose claims were sacri- 
 ficed ujwn the constitutional provision, but he based it upon the 
 fundamental principles of justice. In the course of his opinion 
 he says (p. 345) that the immutable jirinciides of justice, the jiublic 
 f;iith of the States that confiscated and received delits pledged to the 
 debtors and the rights of tlie debtors violated by the treaty, '-all com- 
 bine to prove that aniiile compensation ought to be made to all the 
 debtors wlio liave l)feu injured by the treaty for the iienclit of the pub- 
 lic." To this he adiled : ■■ The principle is recognized by the Constitu- 
 tion, which declares • that private property shall not be taken for public 
 use without just compensation.'" He cites Vattel (Lib. 1, c. 20) in sup- 
 port of the general principle, and adds that it is evident that the debtors 
 "ought to be indemnified, and it is not supposed that those whose duly 
 it may he to make the compen.sation will permit the »•;>////•« of our citi- 
 zens to be sacrificed to a ^;i<i//V: oi/Vc/ without the fullest indemnity." 
 The fact that the italicised words are so in the original shows what stress 
 the Court laid upon the claims of citizens' being property rights, and 
 confiscation of them to procure a treaty of peace being a public u se.f 
 
 * U. S. Siiprfme Court. 1796, 3 Dallas, 199. 
 
 t Extract from Grotius on AVar aud Peace, Bk. III.. Cliap. XX . n. 
 XVI. " Yet those Debts, wliieli were iliip to private I'ersons 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. e., 
 the War ended, they retain their full Force. But tho' it ought not to be easily presumed, 
 that what was a Man's Riglit before the War is taken from him, for this Cause chiefly (as 
 Ckero well observes). Civil Societies were first constituted, that every one might keep his 
 own, yet this must be understood of that Right, which is derived from the Ineciuality of 
 Things, 
 
 XVIII.— There is not the same Reason that private Men should be thought to 
 remit the Right of demanding Punishment, because this may without War be judicially 
 rerjuired ; but since tins Right is not ours in the same manner, as that, which arises from 
 Inequality, and besides Punishments having always something odious: Tlie slight,est Con- 
 jeclures that may be drawn from the Terms of the Treaty, are suflicient 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 Terras of the Treaty, or probable Conjectures drawn from them, lead us 
 to that Interpretation; but especially if the Right in question were not clear, hut in dis- 
 pute. For it is humane to believe that those who make Peace inteml sincerely to stifle 
 the Seeds of War (London edition, 17.S7)." 
 
38 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 TENTH. The principle of international la\r, 
 as stated in the fore.^oin.^ point, as to the 
 moral oblig'ation of Governments to indemnify 
 their citizens for claims a^-ainst a foreig'n 
 Government, sacrificed for the purpose of 
 making- peace, has been incorporated, as an 
 inalienable ri^ht 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 
 •w^elfare are entitled to just compensation and 
 may assert their claim therefor in any Court 
 to Tv^hich Con^-ress erives jurisdiction, and this 
 rule applies to claims of every nature, 
 even thoug-h they were the cause of •war ter- 
 minated by a treaty of peace. 
 
 If it c:in be detiKiiistrateil tliat :i cliiiiu of a citizen of the Uiiilcil 
 States against a foreign Government is a iiroperty riglit, and if tiie re- 
 mission or the oblitenilion of the same is a taking of private property for 
 the pnblio welfare, it necessarily follows tiiat the citizen whose property 
 is sacriliced must be awarded just compensation. In this resjiect it 
 matti'rs not whether the right of eminent domain on the part of the (Jov- 
 ernmcnt is exercised for the pur[)ose of securing the resumption of peace 
 after hostilities commenced, or to prevent au outbreak of hostilities, or 
 to maintain a continuance of peaceful relations before hostilities have 
 actually commenced. 
 
 In support of their claims the petitioners contend: 
 
 (rt.) Claims of citizens of the United States against foreign powers 
 are property rights. 
 
 {().) The obliteration of claims of its citizens against a foreign 
 Government by treaty between the l-nited States and that 
 Government is an e.xercise of the right of eminent donniin 
 and a taking of private projierly for public n.se within the 
 meaning of Article V. of the Constitution of the United 
 States. 
 
 (c.) The principle of just compensation for taking private proji- 
 erty for i)ublic use is applicable to claims sacrificed to obtain 
 a treaty of peace as well as to those in wlilch (be treaties are 
 concluded during a time of peace. 
 
ARGUMENT OF CHAS. H. BUTLER IN MAIXE CASES. 39 
 
 (a.) Claims of citizenx of the United Slates ayainsl foreign powers 
 are proper lij rights. 
 
 It seems almost unnecessary to cite any cases in support of this 
 proposition : a few references, however, will l)e given. 
 
 Mr. .Justice Story held in 1828* that " the ri<,dit of indemnity for an 
 unjust capture, whether against the captors or t lie sovereign, whether rem- 
 ediable in his own courts or by his own extraordinary inteiposition and 
 grants upon private petition or upon public negotiation is a rightattached 
 to the property itself and pas.?es by cession to the use of the ultimate suf- 
 ferer."" In tiie case cited the Court decided that the claim of a citizen of 
 the United States against Si)aiu for 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 ol 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 oue of tiie 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 liecome an elementary 
 principle of the law as it is administered in ti\e constitutional and 
 statutory courts of this country. f 
 
 (i.) The oblileralion ofclaimsof its citizens against a foreign gorern- 
 mentby treaty between the United States mid snchgorernmenl is an exer- 
 cise of the right of eminent domai)i and a talcing of private propcrtg 
 for pitUic vse within the meaning of Article V. of the Const llntion if 
 the United 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 class 
 will be found in Moore's History of International Arbitration, together 
 with an account of the proceedings based thereon. Tiie frequent exercise 
 of this right is evidenced by the fact that, up to IS'.Hi. the United States 
 had participated in fifty-two arbitrations for the settlement of claims, 
 and in many cases the claims of citizens of tiiis country were surrendered 
 
 * Comeyys vs. Vasse, U. S. Supreme Court, 1828, 1 Pet., 198, p. i\a. 
 •f- Some of the many cases in which it has been followed are; 
 
 Williams vs. Heard, U. S. Supreme Ct., 1891, 149 U. S., 529, L.^M*R, /. 
 
 Phelps vs. McDonald, U. S. Supreme Ct.. 1S7S, 99 U. S., 29S, Swav.ne, J. 
 
 Clark vs. Clark, U, S. Supreme Ct., 1854, 17 Howard, 315, Catron, J. 
 
 Leonard vs. Nye, Mats. Supreme Ct., 1878, I'iS Mass., 455, Gr.^y. Ch. J. 
 
 Delafield vs. Colden, N. Y. Ct. Chan., IS'iS. 1 Paige, 139, Walworth. Chan. 
 
 Leifis vs. Bell, U. S. Supreme Ct., 1854, 17 Howard, 616, Grier, ./. 
 
40 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 iiiiil Ijurit'il as against tlic foreign goveniruent, and assumed by tlie 
 United States.* 
 
 (c.) The principle of remlering juat compensation fur taking priiale 
 property for publir tiite is apptiaible to claims sacrificed to obhiiii a treat 1/ 
 of peace, as well as tu those in which the treaties are concluded duriny a 
 time of peace. 
 
 Fortunately, the United States h:ishad occasion to conclude very few 
 treaties of peace. We have already seen that the Supreme Court consid- 
 ered tliat the principle of just compensation for claims of citizens saeri- 
 liced applied to the treaty of peace negotiated by the Confederation ; the 
 United ."-^tates indemnitied its citizens for claims sacrificed in termiiniting 
 the strained relations between this country and France in 1800 and ISIC!. 
 and also those sacrificed in conchnling the treaty of peace between this 
 country and Mexico after the war of I84(i. 
 
 On numerous occasions, however, treaties have been concluded Ijy the 
 rniled States with foreign power?, which were practically treaties of peace 
 bi'cause they were concluded for the purpose of avoiding the actual hos- 
 tilities which would undoubtedly have ensued had such treaty not been 
 concluded. The treaty of ISl!) witli Spain, by which Florida was cedctl 
 to this country, was the only means l)y which a war was avertcil I)etween 
 tills country and Spain on account of the depredations committed on our 
 commerce l)y that country, and tiie menace which Florida was at that 
 time 10 tile ]ieace of tliis country. Claims of our citizens were extin- 
 guished as against Spain, the United States assumed them and settled 
 them. In 1S42 the relations between this country and Great Hritain be- 
 came so acute that troops of both countries were mobilized on the border 
 line. Hy the diplomatic ability of Daniel Wel)Ster and Lord Ashburton, 
 the treaty known by their names was consummated, and the American 
 owner.s of property whicli passed from under the sovereignty of the United 
 States to that of Great Britain, were comjiensated for the losses sustained 
 bv them. 
 
 ELEVENTH Treaties of peace stand on the 
 same footing' as all other treaties made by the 
 United States. 
 
 Counsel for tiie (iovcrnment are evidently endeavoring to create tiie 
 impression that there is some subtle ditferencc between the elTcet of a 
 treaty of peace, and of other Conventions between tiie United States and 
 a foreign power extinguishing the claims of its citizens. As a mutter of 
 
 • Comrgy vs. Vamr. V. S. Supreme Ct., 1828. I Peters, 198, 216. Sto«t, ./. 
 J'hrlpn V8. Mr Donald. V. S. Supreme IX, 1878, 99 U. S.. 298, 808. Swatjie, 7. 
 \Villi,><m vs. l/raij, V S. Supreme Ct., 1891, 140 U. .S., 629, L*¥AB, J. 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 41 
 
 fact, liu\V(.'ver, tliere is no ilistinetion wluitever l)etweeii 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 made in the Constitutional Convention to discriminate 
 between treaties of peace and other treaties, and Mr. Jladison, on 
 Friday. February 7th, 1787, 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 moticni was agreed to 
 at the outset, but in llie course of the discussion Jlr. 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 Mr. Madison's 
 motion was adopted, but on the following day, Mr. King moved to strike 
 out the exception as to treaties of peace and the added clause to that 
 effect was struck out after a debate in which Mr. Wilson, of Pennsyl- 
 vania. Mr. Oouvernenr Aforris, Mr. Gerry. Mr. Sherman and Mr.- 
 Madison participated.* 
 
 CJiancellor Kent, in his Commentaries. says:t 
 
 '• The department of the Government which is cntiiisted 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 i\\Q Peggy, \ Cranch, 
 lo:i, in whicdi Chief Justice Marshall declared that individual rights 
 and vested rights of citizens might bo sacrificed by treaty for national 
 purposes, and ho also cites Ware v. Hi/I/on (:> Dallas, li)9, 245) as au- 
 thority that private rights might be sacrificed to secure public safety. 
 He, however, bases the entire right to make treaties of peace and 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 bound to make compensa- 
 tion and indemnity to the individuals whose rights had thus been sur- 
 rendered. The views of Mr. Wheaton, 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 -.X 
 
 " 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, toI. 3, pp. 1518-1528, 
 
 f 14th Ed., pp. 200 elseq. 
 
 i 508 Boyd's .Sd English Edition, p. 628. 
 
42 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 treaties of peace necessarily implies a power to stipulate the conditions 
 of peace. * * * Tiie duty of makingcompensation to individuals whose 
 private property is thus sacrificed to the general welfare is inculcated iiy 
 jurists as correlative of the sovereign right of nlienating the things which 
 are included in the eminent domain." llalleck, quoting both Whcaton 
 and Kent, says that the treaty-making power is bound by the fundamental 
 law of the constitution of the State, and the only exception uuule by 
 llalleck, Wheatou or Kent as to compensation to individuals is when a 
 State is obliged for purposes of jjcace to cede territory they are not 
 necessarily obliged to indemnify the persons whose territory is so ceded. 
 It can easily be seen tiiat this isnot the same as a saiTifice of property, 
 as it is simply a transfer of sovereignty, the ownership of the i)roperty 
 not being affected, whereas in the case 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, indemnitied the 
 owners of property which passed from under its sovereignty to that of 
 Great Urilaiu l)y the Webster-Ashburton 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 beg-inning of the 
 late insurrection in Cuba, and this includes all 
 claims of every nature regardless of whether 
 they were connected w^ith the war or not. 
 
 The effort made in this proceeding to avoid respcnsibility for one 
 class of claims is unworthy of the (lovcrnmeiit of the United States. 
 Tiie (daims 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 fi.xcd as February ib, It'.io, 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 ilate. 
 
 The relinquishment clause, so far as tiiese claimants are concerned, is 
 even stronger than though it had been general, for it includes all claims 
 except those which are before a siK'cified date, and the exception in the 
 article of claims which arose prior to February, IS'.to, is evidence on its 
 face that certain claims were lobe excludeil, and therefore, under the jjriu- 
 ciple of e.rj)ressio iiiiii(s I'.irlu.iiu ulte'-iii-i. there can be no exceptions to 
 the assumption other than those, which were specified in the article, and 
 no e.xception can be presumed on any general (irinciple whatsoever. 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASKS. 43 
 
 There can he no doubt that in making tiif treaty of [leacc the United 
 States could liave demanded an indemnity for the Maine both for national 
 iind for individual loss, and even if there were a general rule of ir.ter- 
 national law, as asserted by the Attorney-General, that wliere nothing is 
 specified in the treaty, indemnity claims connected witii the causes of 
 the war pass into ol>livion, tiiore is no rule tliat prevents the vietoiious 
 power from demanding an indemnity for those causes. And it the 
 United States Government eonld have demanded on behalf of its citizens 
 an indemnity for the Maine, bnt instead of so doing, it relinquished all 
 claims, national and individual, the presumption must be that tiiere was 
 a relinquisliment of the claims lor the sulfirersof tlic .1/«/?ie disaster for 
 which the American C!omniissione)-s could have demanded indemnity 
 had they seen tit, and the agreement in the second paragi'aph of Article 
 VII. Ijctween the United States and its citizens to adjudicate and settle 
 the claims released is sutliciently broad to include eacli and every claim 
 of all classes which could possibly have been denianded by tlic I'nited 
 States from Spain at that time. 
 
 In the case of Jsjii/iiirill vs. Ve)ie::iieJ(( . tlic ((uestion of jurisdiction 
 was raised in regard to the character of the claims, and the Commission 
 assumed jurisdiction on the ground that where all the claims were refei-red 
 to a Commission by a t'onveiition, limited only by a tune ipudification, no 
 question of the elueracter of claims could be raised so as to prevent the 
 Commission from taking jurisdiction.* 
 
 THIRTEENTH.— Treaties by which rig-hts of 
 citizens are aflFected must be construed liber- 
 ally for the individuals. 
 
 On these demurrers the Attorney-General practically admits for 
 the purpose of the argument, it. in fact, he does not actually assert, that 
 the petitioners at one time had claims, but that they were extinguished 
 by the treaty of peace, as against Spain, in the same manner that other 
 claims were released, without, however, being similarly a.ssumed by the 
 United States; he seeks to find the extinguishment liy the forced con- 
 struction of a clause in which words have to be interpolated in order to 
 sustain his posilion. 
 
 * In this case, wliich li.is already been referred to at Icnglli under another point (see 
 pp. 14 eUeq., ./»(e), the Conmiission considered carefully the construction of treaties and tlieir 
 effect upon ri-hts of individuals and in refjard lliercio, after citing Mr. Justice Story in 
 Shn,d:s \-». Dupo„t {:i IVt.. '.;4'.i); H.vin..'<itm vs. I.nnham (Imi U. S., 48S). and Grotius 
 (De Jure Belli ac Pacis, Book ■>. chap. 16), decided that the most liberal exposition and 
 construction of ii treaty was to be adopted (Moore's History of Arbitration, pp. 8624- 
 3626). 
 
44 liKi-oKK Tin: spanisu tkkaty claims commission. 
 
 Tlie familiar rule of interpretation of treaties originally laid down by 
 Vattel, which has been cited on other briefs iii these cases, and 
 which is now an clenientiiry principle of law, is that " It is not allowable 
 to intL'rprt't that which has no necil of iiitcrjiretation." 
 
 Tiie expression, "all claims of every nature, except those arising 
 l)rior to Fel)ni;iry IS, IHilo," cannot be twisted into the expression "all 
 claims whicii might have i)asscd into oblivion by a treaty of peace had 
 they not been expressly saved therefrom by tlie terms of the treaty." 
 
 In the construction of treaties which operate directly upon individual 
 rigiits, the individual is always protected, and this is especially true 
 where the treaty contains provisions confiscating the individual's ])rop- 
 erty and indemnifying him therefor. 
 
 All penal, confiscatory and tarilf statutes are construed strictly 
 against the Government and all remedial statutes are construed liberally 
 for the person whoso rights are affected. These are cli-meutary ])rincii)lps 
 of law, which apply not only to treaty rights but to all rights of citizens 
 which are affected by governmental action.* 
 
 In construing Article Vll. of tlie Treaty of Peace, every presumption 
 must be in favor of the American citizen whose claims were sacrificed for 
 the purpose of terminating a war, which was causing, outside and be- 
 yond the horrors of war and loss of life, expenditures which exceeded 
 every three days the total amount asked IVom this Commission by those 
 who suffered from the destruction of the Maine, and this Court will not 
 hold tiiat when the Commi.-isioners of the United States were in a jto- 
 sition to demand indemnity for the ship and individual, and they waived 
 all claims of every kind, that any jiresumption 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, e.\cept 
 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. llav that "Siiain offered to reliiic|uish her sovereignty over Cuba 
 and cedes to the United States the Philippines, Porto Hico and (iuam as 
 compensation for the expenses of the war and as indemnity to American 
 citizens for injuries suffered since the beginning of the last Cuban insur- 
 rection." This was directly in line with Secretary Day's letter to the 
 Due d'Almodovar del Kio, of July :»0, 18'J8, preliminary to the peace 
 negotiations, culminating in the proloc(d of August Vi, 1898, and in 
 which he dechired that ihe Presidi-nt was so desirous of exhibiting signal 
 
 ■ Poteen vs. Barntji, 6 BUtcbr., 202; U. 8. tb. UUman, Ftd. Cat. No. 18, 698; Hart- 
 r.m/tVB. Winfinan, 121 U. S., 609; U. S. vs. WiyyluKorth, 2 Slory, S<19. 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 45 
 
 generosity that lie would not make any pecuniary demands for indemnity 
 for the war, but that he would have to demand the cession of Porto Rico, 
 therefor, and for claims of citizens, for injuries to persons and profierty 
 during the war.* 
 
 The Attorney-General 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 cliiims of American citizens, 
 not only in defiance of pulilic sentiment, but also of Constitutional 
 protection. Surely this Court will not so flagrantly misinterpret tiie 
 signal fieneronit 11 of that man whose every action was not only indiralive 
 of the highest regard for national welfare, but also of a deep and tender 
 regard for the individual wellare 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 read, if he will, tlie words 
 of our martyred I'resident. about the destruction of what he called our 
 "noble vessel" while in the llarljor of Havana "ou a mission of peace 
 and rightfully there,"' and of the "sorrow to the nation and grief to the 
 home."' and then let him — if ho dan^ — repeat his assertion to this Court 
 that William McKinley, in announcing the terms of peace to a van- 
 quished foe, when he was in a position to dictate terms which would pro- 
 tect the just claims of American citizens, either 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 tiie 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 be no doubt that the claims are " individual 
 claims for indemnity" and were included in the relinr|uishmeut. 
 
 * ■• The Presulent, tlesiroiH of exlubiting signal generosity, will not now put forth any 
 demand for pecuniary indemnity. Neverlhcless, 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 pr.iperty during the late insurrection in Cuba. He must 
 therefore, require the cession to ihe United States, and the evacuation by Spain, of the 
 Islauds of Porto Rico and other islands now under tlie sovereignty of Spain in the West 
 Indies, and also the cession of an island in the Ludruues 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 govcninu-iits has been (liseii.ssed on many occasions and there can 
 be no doiilil that " Nalional " claims lur indemnity are thoec for which 
 the United States can collect and retain indemnity for losses sustained by 
 the government in property and expense, or when i)ecuniary damages arc 
 demanded, lor insult to the Ihig; wliile " individual "' claims arc those 
 which citizens of this country have against a foreign government for 
 loss and damages actually sustained and for which a foreign government 
 ia responsible. 
 
 Some confusion has at times arisen from the fact that claims of citizens 
 of any country cannot be enforced against a foreign government except 
 througli the Government of the injured party, and when a government 
 takes up and presses such claims ol its ciU'zens it makes their individual 
 grievances a National matter. 
 
 In sucii sense the claim of the individual may become the basis of a 
 national demand, but in no sense does the claim ever lose its character of 
 being tlie personal ov individual property right of the claimant. 
 
 In all cases in wiiich injury to i)ublic vessels is inv(dved, luitional and 
 individual claims arise; liotli are wliolly under governmental contnd 
 as against Ihe foreign country, but as to the nalional claim, the govern- 
 ment can release the claim for whatever :imount it is willing to accept, 
 wiiile as to the individual claims, it must compensate those whose prop- 
 erty rights it has sacrillccd for the pul)lic good. 
 
 This subject has already been treated at length under another jioint 
 and it will only lie briefly referred to again.* 
 
 The fact is the words '• national '" and " individual " were used in 
 tiie treaty in the same way as the words •' of every kind," so that Spain 
 should Ije released from every possilile claim which could l)c prosenlcil by 
 the United States, cither for itself or for its citizens. The words 
 national and individual are not used in the adjudication clause; by that 
 the United States simi)ly agreed to adjudicate and settle the claims of its 
 citizens against Spain whicli were relini|nishcd. If any citizen was 
 prejudiced liy the relinquishment of a claim he is protected whether his 
 claim is one in whicli no other jierson is interested, or whether other 
 l)ersons or tlie Government of the United States is also interested in if. 
 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 (-itizen whetlicr 
 it bad to be presented through the Government or not is included in the 
 adjudication clause of Arti(de Vll.f 
 
 • Si'f pp. 21. 22, (tiilr. 
 
 \ Tlio following extract from the npiiiion of Davis. J., in Urai/ v«. t'tiilnl Slolrs, one 
 o( llie leading French .Spolintiun ruses decided by the Ciuirt of Olniins in 1886 (21 Ct. of 
 Olint., 34i>), tlirowe n (jrenl deal of light on the tonus Xnlional and individual nhen ap- 
 plied to claims against foreign governnientg. On pp. .'<91-S, Judge Davis saya : 
 
 " The word " National ' has been largely used in argument in allusion to Ilia dilTerent 
 kinds of claims at dilferent periods brought into the discussion, and is a convenient word 
 
AROnHENT OF CHAS. IF. BUTLER IN MAINE CASES. 47 
 
 One test which is frequently altlidugli nut always aiiplied to aseertaiu 
 whether claims are individual or national is the disposition of the indem- 
 nity received. Any money received by the United States for indemnity 
 for ;i national chiim must of course eventually find its way into the 
 treasury of the United States, whence it can only he withdrawn under 
 some Congressional authority. On the other hand indemnities for 
 individual claims are always paid to the United States, but they are as 
 a general rule received by the Executive Department of the Oovernment, 
 and i)a,id over by it directly to the parties entitled thereto. This was the 
 method adopted in regard to tlie ]'ir(ii/iiiis indemnity |)aid liy S|iain, 
 the lliu-akeii indemnity iiaid liy Jai)un, tlie BaUiimn-c iiidi>mnity paid 
 by Chile. Many other instain-es might be cited, but tln' numbers of the 
 Coui-I are too familiar with this practice of the Government to reiuler 
 any further citations necessary. 
 
 It sometimes happens, however, that when l)oth National aiul indi- 
 vidual claims are included in one sum, the amount is covered into the 
 
 if clearly urulerstoofl in llie connfction in which it is used. All clainia are ' N'atii.nal' in 
 the sense of the jus (/cvlimn, for no Nation deals as to queslions of tort witli an alien indi- 
 vidual ; the rights of (hat inOividiial are against his Government, and not until that (;ov- 
 ernment has undertaken to urge his claim— not until that (iovernment has ajiproved it 
 as at least /iiv'mrt/atvc valid — does it become a 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 imlividnal claimant may be used as a convenient designation 
 of the particular diseu^sicm, but as belwien the nations it is never his individual claim, 
 but the claim ol his Government foundnl upon injury I" it-^ citizen. Nations negotiate 
 and settle with nations; individuals have relations only with their own Governments. 
 Other claims, sometimes the subject of argument, rest upon injury to the State as a whole ; 
 of these an apt iUustration is fcjund in the so-called ' indirect ' claims agaim-t (treat 
 Britain, disposed of in the arbitration of 1872, and in the claims advanced by France for 
 injury caused by non compliance with the treaties ol IMS. 
 
 "Thus, while all claims urged by one nation upon another are. technically spealdng, 
 'national,' it is convenient^ to use colloquially tin- words -national ' and ■ imliviiliial.' as 
 distinguishing claims founded upon injury to the whole people from those foutided uiion 
 injury to particular citizens. TIsing the words in this sense, it appears that in the nego 
 tiations prior to the treaty of 180O, and in effect in tlie instrument itself, national claims 
 were advanced by France against individual claims advanced liy the United States. 
 France urged that she had been wronged as a nation; we urged that our citizens' rights 
 had been invaded. 1 f ' national ' claims had been used against ' national ' claims, and the 
 one class had been set off 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 between the individual and his own Government 
 could have complicated the situation. But in the negotiation of 1800 we used ' individ- 
 ual ' claims against ' national ' claims, and the set-ott was r,f French national claims 
 against American individual claims. That any Government has the right to do this, as it 
 has the right 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 lu-operty is thus 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 la- paid 
 to inilividiials to he paid out of the treasury. 
 
 ]Iad the United States demanded and collected indemnity from Spain 
 for tiie Maine, undouljledly a lump sum would have finally been agreed 
 upon and paul for all National and in(livi<lual claims; the United States 
 would have divided the amount received into two part.«, one for the 
 value of the vessel and the other for the individual sufferers, which 
 would in its turn have heen distributed amongst those entitled thereto 
 either hy Act of Congress or hy Si)me other method determined l>y 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 
 anotiier for the sufferers, as well a method for the distribution of the 
 latter as was done in the cases of tlie Virginius and the fialtimore. 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 Hag was 
 given back to Japan: indemnity was retained, however, for all expenses 
 of the fiovernment 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-Ball imore affair the United States could have demanded 
 j)unitive damaijes for the national insult, but true to the doctrine an- 
 nounced in the W'l/oiniiir/ matterj; it made no pecuniary dennind therefor, 
 except a suitable apology ; but Cliile was obliged to pay to the United States 
 for the families of the murdered men who wore the uniform of the United 
 States an indemnily " |)roportionate,'' as Secretary Foster expressed it, 
 " to the gravity of the offense. "§ 
 
 In the rin/i)iiiis affair of U^TI. the National element of the claim 
 against Spain and the right of the individual sufferers to inilemnity was 
 kept distinct ; the former was eventually waived by the United States, 
 but Spain was oldigod to pay ^80,000 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 S|)idiati()n claims, tlie distinction 
 between the national and individual claims was freiiuently alluded to. 
 
 The only report whicii will be referred to at length is what may 
 
 • See special sub-heading to Sixteenth Point, /km/. 
 f Act of February 22, ISS.'?, 22 SUt. at I.., p. 42. 
 X Sen. Doc. 231, 66tb Cong., 2d Sess., Part I. p. 
 
 § U. S. For. Rel., 1892. nnder Chile, and see case referred to at length under special 
 ■ub-hcail to Sixteenth Point, p. hi, jkM. 
 
 I f, S. For. Kel., 1875, pp. 12iO-I2Bl. 
 
ARGUMENT OF CIIAS. H. BUTLEK lis MAINE CASES. 49 
 
 well be eallfd thefainuu.^ report ou these claims of Charles Sumner,* in 
 which lie so ably urged the pa3'meut of debts which he declared were 
 jusily due to American citizens, and which hail been sacrificed by the 
 Government for the welfare of the nation. It was in the course of that 
 report tiiat he r|Uoted 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 })hrases of diplomacy, by picturing the honest nation as 
 that which, like the honest man, 
 
 " Hath to its pliirhteJ faitli. and vow forever stood; 
 And thoU2;li it promised to its loss, yet malces that promise good." 
 
 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 :!00 he shows that when claims of this nature are taken by the 
 Government in making a treaty the provisions of Article V. of Amend- 
 ments that private property cannot be taken for juiblic use without 
 compensation are clearly applicable thereto. 
 
 This report, as it was adopted and twice readopted, staTuls as the c-lear 
 cut expressions of that Committee of the Senate, which has always bi 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 
 Government of the United States to pay its obligations to its own citizens 
 when assumed by a treaty w ith a foreign Government, and it was adopted 
 as the basis of tiie legal decisions rendered in the French Spoliation cases. f 
 
 • Senate Document 231, 5 ith Congress, 2d Session. No. 41. Parti. The report 
 commences at p. 274. It was adopted April 4. 1864, and was readopted March "2, 18IJ7 
 (p. 378), and readopted .lanuary 17, lS7n (p. 383). 
 
 f The leading French Spoliation cases are as follows : 
 
 Holbrook- vs. Vnited Stales, \J. S. Ct. of Claims, 18S4 ; 21 Ct. Claims, 434, 
 
 Davis, .7. 
 Citshinff vs. i^mtal Slulf.% V. S. Ct. of Claims, 1S86; 22 Ct, Claims, 1, 
 
 Davis, J. 
 Gray vs. U^nited Stales, V. S. Ct. of Claims, IS.St;; 21 Ct. Claims. S40, 
 
 D.4VIS, J. 
 
 Hooper vs. UniUd Slates, \J. S. Ct. of Claims. 1887; 22 Ct. Claims. 408, 
 
 D.4VIS, J. 
 
 T/it Brig William, U. S. Ct. of Claims, 1S8S ; 23 Ct. Claims, 201, Scofield, 
 
 J. Also reported under the names of Haskius, Adams, Blagge vs. 
 
 Vnited States. 
 Ihe Ship Betsey, U. S. Ct. of Claims, 1888 ; 23 Ct. Claims, 277, Nott, J. 
 Tlie Ship Jane, U. S. Ct. of Claims, 1889 ; 24 Ct. Claims, 74, Nott, J. 
 The Leghorn Seizures, U. S. Ct. of Claiins, 1892; 27 Ct. Claims, 224, Nott, J. 
 Tlie Brig Venus, U. S. Ct. of Claims, 1892; 27 Ct. Claims, 116, Nott, J. 
 
 Also reported under Cole vs. United Slates. 
 The Ship Tom, U. S. Ct. of Claims, 1893 ; 29 Ct. Claims, 68, Nott. /. 
 The Ship Ganges, U. S. Ct. of Claims, \89'<; 31 Ct. Claims, 175, Davis, /. 
 7he Ship Star, V. S. Ct. of Claims, 190e ; 35 Ct. Claims, 387, Weldos, J. 
 The Schooner Henry and Guslavm, V. S. Cl. of Claims, 1900; 35 Ct. Claims, 
 
 393, Wkldos, /. 
 
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 muy nr niiiy ni)t present tlie claims of its citizens to a 
 foreign goverumeiit, but if Cor i)oiilic or (li)vernmentiil reasons, it deter- 
 mines not to present claims that are lu^jpi-r, it is bonnd to assume the 
 claims and indemnify tlie citizens wliose claims are thus eitiier sacrificed 
 or rendered uncollectible.* This rule was laid down in tiie French 
 Spoliation cases and has too often been asserted by writers on inter- 
 mitional law to require many citations to support it.f 
 
 Tlu Ship Juliana, V. S. Ct. of Claims, lOilO ; 35 Ct. Claims, -100, Pkkli.k, J. 
 The Ship Patkman. U. S. Ct. of Claims, 1 900 ; .S5 Ct. Claims, 406, W kluox, ./. 
 The Ship Apollo, U. S. Ct. of Claims, 1900; 86 Ct. Claims, 411, Peeule, J. 
 The Ship Corirord, V. S. Ct. of Claims, I9ii0; 35 Ct. Claims, 432, Nott, Ch. J. 
 Batch vs. Bla</f/e. U. S. Sup. Ct., 1896, 162 U. S., 439, Fullkr, Ch. ./. 
 U. S. vs. Gillial, U. .S. .S. C, 1896; 164 U. S.. 42, Peckham, /. 
 For a list of Frencli Spoliation awards rtporled to Congress bj- the Court of Claims, 
 see 2S Ct. Claims. 624; 24 Id., 550; 25 A/., 531 ; 26 /</., 637. 
 
 * See also pp. 21. 22, ante, M this brii-f. 
 
 f On page 390, 21 Court of Claims, Davis, J., says in his opinion in Orai/ vs. United 
 States, which has just been referred lo : 
 
 " The judiiiary has seldom occasion to deal with the abstract ri^ht of the citizen 
 aj^ainst his jjovcrninent, for in a case raising such a i|uestiiin the in(llvi<lual is without 
 remedy other than that grnriled hirn by llif Legislature. The question of right. lheref<iri>. 
 is usually passed upon by the political branch of the (foverninent, leaving to the courts 
 the powi'r only lo construe the amount and nature of the remedy given. Still juilicial au- 
 thority is not wanting in support of the position that by the agreement with France the 
 United States became liable over lo their individual citizens. Lord Truro laid down in 
 the House of Lords as admitted law, 
 
 " "Thatif ihe subject of a country is spoliated by a foreign government he is entitled 
 lo redre's through the means of his own Government. But if from weakness, timidity or 
 any other cause on the pari of his own Oovernment no redress is obtained from the foreign 
 one, then lie has a claim against his own country' (De Bode i'. The Queen, 3 Clarke's 
 Mouse of Lords, 464). 
 
 "The same position is sustained by that eminent writer upon the public law, 
 Vattel, who held that while the sovereign may dispose of either Ihe 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 Stale is bound to indemnify the citizens who are sufferers by 
 the transaction.' " 
 
 Sec also extract from tirotius, cited on page "oil, g248. vol. 2, Wharton's Int. Law 
 Digest: "But we must also observe this, that a king may, two ways, deprive his sub- 
 jects of their rights, either by way of punishment or by virtue of his eminent domain. 
 But if he do it the last way it must hv for some public advantage, and then the subject 
 ought lo receive, if possible, itjml compensation for the loss he suffers oat of the commoo 
 slock" (ttrot.. War and P.-ncn, 3:<3. f. 2. ch. 14, § 7). 
 
L 
 
 ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 51 
 
 In the case of the General Arws/roiu/. destroyed in 1S14 liy British 
 naval neutral vessels in the harbor of Fayal, after many attempts to 
 compel Portugal to pay the elaini. a treaty was made in 18.")1 to refer 
 "the claim presetiled by the Amrricn/i Gurirnmoit in /jehalf nf the cap- 
 fain, officers anil crew." of the vrssel.* The Emperor Louis Najioleon 
 was selected to act as arhitrator. lie decided against the United States, 
 on the ground that the oBicers and crew of the General Arnisfrong iiad 
 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 ami inid it on account of certain 
 errors in suhmitting the case. 
 
 The General Arn>f:tro)if/ ciiSL' is in line with these cases in one respect, 
 which should lie carefully notrd. Many years liefore the amount (d' the 
 claim against Portugal was allowed and paid, Congress had appropriated, 
 and distributed among the crew of the vessel. §10,000 for prize money 
 as a relief measure on the part of the United Slates. 
 
 The United States has never abandoned claims of its citizens against 
 a foreign government. On tlie contrary, it has urged the payment of 
 such claims at the very p.unt of the baymiet and the mouth of the 
 cannon, and if the Attorney-Gt-neral should sneered on these demurrers 
 it would be tantamount to obtaining a decision of this Court that tiu' 
 United States, in making the treaty of peace wiili 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 costing 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 citi;ens have against any foreign 
 irovernment. 
 
 SIXTEENTH. In construing Article VII. 
 of tlie 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 1851 witli Portuijal is as follows: " The high conlracling 
 parlies, not being able to come to an agreement ujion the ijiiestion of public law invcjlved 
 in the case of the privateer brig, Geiiend Armstromj. ik'stroyeil by British ves-sels in the 
 waters of tlie i.slan<l of Fajal, in September, ISl I. Her Most Faithlul Majesty has pro- 
 posed and Uie Uniled States of America have oonsenled. that llie claim presented by the 
 American Government, in behalf of the captain, officers and crew of the said privateer, 
 be submitted lo the arbitrament of a sovereign potentate, or chief of some nation in amity 
 with both the high contracting parties." (U. S. Treaties and Conventions, Ed, 188U, p. 
 8»7.) For the acts of Congress indemnifying tlie owners and other matters connected 
 with this case see page 59 of this brief, jxist ; see also 2 Wharton's Int. Law Digest, g 248, 
 p. 714, for list of documents relating to case. 
 
52 HEPOUE THE Sl'AN'ISH TREATY CLAIMS COMMISSION. 
 
 orphans of officers, sailors and marines of the 
 Navy of the United States. 
 
 'I'lie United States hiis ahvay-* protected its soldiers and sailors in 
 foreign lands and lias never made any distinction in demanding indem- 
 iiitv for injuries received in foreign lands between soldiers, sailors and 
 other otlieiais and citizens who have not iield otiieial positions. 
 
 It will be impossible to review all the occasions on which onr soldiers, 
 sailors and representatives in diplomatic iind consular service have been 
 ill treated in foreign countries in time of peace, anil the United States 
 has compelled tlie foreign nation to indemnify tliem for the injuries 
 whicli tiiey have sustaine<l. In this point it is purposed simply to refer 
 briefly to a sutticient number of sueii cases to show that it is not unusual 
 for the United States to collect indemnity under such circumstances. 
 
 Our soldiers and sailors, otlicers, crew and marines, assume all risk 
 of danger and of death when, in the course of their duty, they are at- 
 ticked by an open enemy engaged in actual hostilities, l)ut 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 sttilor.<< as to other 
 citizens as Mr. Blaine deniamled it from Chile in the HnUimnre case, 
 and as Secretary Foster dechired in the same case: the indemnity must 
 be proportionate to the gravity of the affair when tiie men wear the uni- 
 form of the United States.* 
 
 The Hitltillior*' Case. 
 
 It is not necessary to seek for precedents prior to the present decade. 
 In l.S'.tl, when our sailors from the BaUimoie\ were attacked in Val- 
 
 • Tlic ilftiniants under lliis point will cite the folluwing cases; there are undoubtedly 
 many oilier ciisea in which siinilnr dein«mls have liecn made and collected; 
 The Ballimorr, U. S. .j. Chile, IS'.M, see p. .5'». 
 The Cheta/ieake Sailorx. U. S. i». (Sreat Britain, 1807. see p. 67. 
 The Oenernl Arm-strmiff. U. S. !■». rorluijal. 1814, see p. 59. 
 77i« Wi/omiiiff, U. S. ft. Japan. 18«S, seep. 59. 
 The Water H'lVc/i, U. S. if. Parntruay. 1855. see p. fiO. 
 Allache lluenk-eu't lUalh, U. S. I'l. Japan. ISfil, .«ee p. 61. 
 SpaiiM Coutulu in New Orleaiit and Key W'al, Spain i* V. S., 1861. 
 
 sec p. 61. 
 Col. Martirri/'t Jtalh, Great Ifritain r». China, 1875. see p. 82. 
 Britifh Sailors in Japan, Great Hritain i». Japan, 18tii, see p. 62. 
 The French Corrrllr Viiplrii, Krani-e rt. Japan, I81I8, sec p. 63. 
 
 f President Harrison in his .3rd Aiiiiuul .Me»snj;e. Pec. 9, 1891.9 Richardson. 186, 
 says ; 
 
 •• On the l«th of Oolohcr. 181(1. an event occurred in Valparaiso so serious and tragic 
 in its circumsUnces and result* as to very justly excite the indignation of our people and 
 
ARGUMENT OF CHAS. H. Bl'TLER IN MAINE CASES. 53 
 
 paraiso, Hon. .hmies G. Blaino. tin- then Secretary of State, placed tlie 
 riglitof this country to demand indemnity for men who were in our 
 Naval and ifilitary employ uiiou the duty of relf-respecting nations to 
 protect tiieir rcpresentative.s and those wiio woi'e tinir uniform. (.)n 
 January 21, lSli-<!, in his instrnction.s to Mr. Egan he said, in woixls of 
 no etjuivocal meaning : 
 
 '•No st'U-re.spcftiujj- jjovermneiit <-aii coiisi'iit fliat poixmsin its 
 .service, wliothcr *i\H or military, shall be Ixateii and killed in a 
 loroiyn territory in rcscntnH-iit of arts dono by or iin|Mited to 
 their j'<»\crnnient without <'\aetini; a suitable n^paralioii The 
 Government oftlie Unitcid States has freely reeognized this i»rin- 
 • ■iple. and aete<l upon if, wlii-n the injury was don<' by its pi'ople 
 to one holding' an ollicial relation to a friendly power, in ri'sent- 
 nieiit of acts done by the latter. In su<h <ase the Unite«l States 
 has not sou;;lit for words of the smallest \alu<' or of eipiivoeal 
 meaning' in which to eon\ey its apology, but has condemned such 
 acts in vilj'oroiis terms an<l has not rcfuse<l to make other 
 arteciuate reparation."* 
 
 to call for |irom|it and decided aelion dii the \^an of this Govcn-nment. A considerable 
 number of the sailors of the P. S. 8. S. Bulliiiiore, then in ihe harbor at Valparai.so, beini; 
 U|)on shore leave and nnarnied, were assanli.ed liy armed men nearly sitntdtaLeoiisly in 
 dirt'erent localities in the city. One petty officer was killed (jnl right and seven or eiylit 
 seamen were seriously wounded, one of whom has since died. So savasje and brutal wa.s 
 the assault that several of our sailors received uujre than two and one as many as eijjhteen 
 stab wounds. An investii^alion of the artair wag promptly made by a board of officers id' 
 the jBallhnorc, and their report shows that the.se assaults were uiiprovidied, tliat our men 
 wei-e eonduct'n^ themselves in a pea(;eable and orderly mannei', and that some of Ihe 
 police of the cilj" look part in the assault and used their weapons with faial eil'cct, 
 while a few others, with some well disposed citizens, endeavored to protect our men. 
 Thirty -si,\ 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 
 of anv breach of the peace. 
 
 "So far as I have yet bet-n able to l«-arn, no other explanatitui 
 ot this bloody work h:is been suf;j;ested than that it had Its orij;in 
 iu liostilitj to thos«' men as sailors of the I'nited States, wearing' 
 the uniform of their Government, and not iu any individual act 
 or pei'SOnal animosity." See al,so .Special Message of Pi-esident Harrison Vi 
 Congress on this subject of .January 2.5, 1892, 9 Richardson's Messages, pages 21.'i el smy , 
 and note especially Ids remarks on page 218 as to the etiect of assaults on sailors on shore 
 leave. These remarks are quoted at length in a subsemient note nmler this point. 
 * The remarks of Mr. Blaine were preceded by the following statement: 
 " I am directed by the I'resident 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. BuUimore, iu the City of Valparaiso, on the evening of the 
 I6th of October last, and to the evidence of the officers and crew of that vessel, ami of 
 some others who witnessed the affray, and that his conclusions upon the whole ease are 
 as follows; 
 
 " First. That the assault is not relieved of the aspect which the early inforniatiou 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 
 Bailors or of any of them. 
 
54 BEFORE THE SPANISH TKEATY CLAIMS COMMISSION. 
 
 'I'lic |iriitiii>t lU'iiKuid niiulf by Secretary Blaine resulted in a recogni- 
 tion l>y Chile of the claim, and it was siibsi.'i|iieiitly settled, not, however, 
 until the great statesman who had so ably enunciated many American 
 principles had passed to his final rest. The negotiations were concluded 
 by his successor, Secretary of State John \V. Foster, who, in his dispatcli 
 of July 1st, IS'.fi, to Mr. Egan, declared that the gravity of the otieuse 
 was increased by the fact that the men wore the uniform of the United 
 States.* Chile finally paid $;."), 000 iiulemnityf to the men who were 
 injured and for th<> (aniilie.s of those who were killed. No pecuniary 
 deniaiul fm- Natinnal 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 Bal/imore and the case of the Maine. He main- 
 
 " Second. Tliat 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 ifuilty of unprovoked assaults upon our sailors before and after arrest, lie 
 thinks the preponderance of the evidence and the inherent probabilities lead to the con- 
 I'lusion tliat Uii;:;in whs killed by the police or soldiers. 
 
 " Third. Tliat he is Iheref'rc compelled lo brin;; the case back to the position taken 
 by this (lovernment in the note of .Mr. Wharton of *.)ctober 2^^ last (a copy of which you 
 will ilcliver with this), .ind to ask for a suitable apology and for 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 
 exacting or to ask anj-lhing which this Government would not, under the same circum- 
 stances, freely concede. lie reijrets that, from the beginning, the gravity of the questions 
 involveil has not appiirenlly been appreciated by the Government of Chile, and that an 
 atTmr in which two American seamen were killed and sixteen others seriously wounded, 
 while iiidy one Chilean was seriously hurt, should not he distinguished from an (ir<linary 
 brawl between sailors in which the provocation is wholly |)orsonal and the participalnm 
 limited" (!'. S. For. llel., 18!ll. p. Wi). 
 
 * " Mr. Foster conveys to Mr. Ugan the gratilication of the I'rcsident at the desire of the 
 Chilean (Jovernment. expressed in Mr. Kgan's telegram of the 23d of .lune. and expresses 
 the liellef that file i iiil c III II 1 1 v to Mil' rchitivcs ofllH- ■<caiiii-ii Uiilcil. 
 and to tlic llicii w lio ■.ur> l\cil iii.jiirirs r«'c<'i v«'(l \\ liili' wciiriii^ I In- 
 iiiiiloriii III Mm- I'liitcil Slates, shall lie proportionate lo llio {grav- 
 ity ol'tllC atl'air. II'! requests informati<in by telegram as lo the \iew^ u\ ihe 
 Chilean (iovernment in regard to prompt compensation." (U. S. For. Rel.. 18'.I2, p. 57.) 
 
 f [Kbom Mr. Koan to Skcrktary F'ostkr.] 
 I'. 8. For. Uel., 18»2, p. r,4. 
 
 " Lkgation ok the U.NiTin States, 
 No. 3!11. " Sa.itiaoo, July 16. 1891 
 
 (Keceived August 22). 
 " Sir. — I have Ihe lumor to refer to my .No. ;vjii of 12th instant and lo say Ihot on 
 the 1 (III instant I communicated verbally to the minister of foreign relati<ms the purport 
 of your telegram of 12th instant, in regard to the offer of compensation in the Halliinnrt 
 case, at which he expresseti much pleasure. To-day I received a note from him dated 13th 
 instant. Irnnslatiim of which is herewith enclosed, formally, on behalf of his Governmenl. 
 placing at my disposal the sum of ^7.^.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 llith October last in Valparaiso." 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 55 
 
 taiued 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 fact, 
 he went so far as to say, in answer to a (luestion propounde'l by claim- 
 ants' counsel, that had the riot in Valparaiso occurred at the ![uay and 
 that some of the men wlio were killed Jiad been on shore leave and some 
 of them had been on duty in the Bal/iiiion-'s cutter, the Ignited States 
 could have demanded indemnity for those who were killed on the quay, 
 but not for those who were idlled 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 BaUhnorc case from that of the 
 Attorney-General was taken by President Harrison. His special mes- 
 sage to Congress of January v!5, IS'.r.', in regard to the relations with 
 Chile in regard to this atfair eoiniiletely undermines the position of the 
 Attornev-tjeneral in regard to the distinction between men on shore leave 
 and men on dutyf The imperative demand which was made on Chile 
 
 * During the closing argument made by Mr. Ruasell on behalf of the Government the 
 following colloi|uy between counsel uccui-recl ; it appi'.irs on iiai;e IS of Mr. Rns-^ell's 
 printed argument: 
 
 " Mr. Butler. I would like to ask you this ([uestion : Whether your argument goes so 
 far that if a cutter had taken the seamen ashore for shore leave, and after they had gotten 
 on the dock and severed from the cutter an accident had happened in such a way lliat 
 some of the men on the dock had been killed and some of the men in the cutter, do you 
 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 the cutter is regarded as a part of tlie man-of-war 1 .-inswer 
 accordingly." 
 
 fin this message (9 Richardsoo, 217 et seq.) Mr. Harrison, after alluding lo tlie 
 remarks in his annual message about I lie B.tllimore. wliich have just been quoted, says; 
 '• I am still of the opinion that our sailor.s were assaulted, beaten, slabbed and killed not 
 for anything they or any of them had done, but for what the Government of tlie L'nited 
 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 and so 
 cowardly. 
 
 " Before attempting to give an outline of the facts ujion 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 i)roper 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 U the city officers, as is customary, extended 
 the hospitalities of the city to his officers and crew. It is not claimed that every 
 
5') BEFOKE THE SPANISH TKEATY CLAIMS COM^fISsION. 
 
 was due to the fact that Mr. Harrison ami 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 llafj itsoir 
 had l)een insulted, and was lar more serious than though a mere citizen 
 had been injured, and this (iovernment was bound to take action upon 
 it as though it had been an attack upon its own sovereignly. 
 
 ir the views expressed by counsel for the (I'lvcrnment in these cases 
 had been adopteil l)y .Mr. Harrison and his Cabinet, this Malioiiul pha.se 
 of the case would have deprived the sailors themselves of all ])ersonal 
 indemnity or conipensation except sucli as the United States slmnld 
 gratuitously afford ihem by act of Congress out of the Treasury. In 
 fact, the otfence was declared to be eipiivalent to an insult to the flag, 
 and the injury wasdiaraclerized as one to the Government of the United 
 States and not to the sailors. 'I'he demand, however, was made and 
 collected as indemnity for the sailors f(M' llu' injuries received, exjictly 
 as in the case of other citizens, and .\Ir. Harrison did not consider that 
 because the case involved A<i/iitiiiil elements, the individual sulTerers 
 could be deprived of their just claims for their indemnity: the money was 
 ))aid by Chile as indemnity for the individuals;* it never went into 
 the treasury of tiie United States, but was distributed by the Secretary 
 of the Navy amongst the persons e(|uitably 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 ap])ears from tiie llnUimore and other cases 
 cited in this point. 
 
 pergonal culliaion or injury in which a sailor or officer of such vessel visiting the 
 sh'jre may l>e involved raijes an inti-rnalional i|iiesli<in. I>ut I am dearly of the opinion 
 that whrre such sailors or officers are assaulleil by a resiileni populace, nniniated liy hos- 
 tility to the government whose uniform these sailors and officers wear, anil in resentment 
 to acts done by their Gjvernnienl, not by them, their nntioo must lake notice of the event 
 as one invidvini; an infraction of its rights and dignity, not in a secondary way, as where 
 n citiiiMi is injared and prcients his claim throiiifh hi< own Oovernnieol. but in a primary 
 way, pteciicly «•< if its minister! or consul or the tVi;; itself had been the object of the 
 sauie character of assault. 
 
 "Tln> officers and sailors of the liiltimorr were in the harbor of Valparaiso under the 
 orilers of tlicir (Government, not by their own choice. They wer'c upon the shore by the 
 implied invitation of the (iovernment of Chile, and with the approval of their conmiandini; 
 officer: and il docs not distincuish their case from that of a consul that his stay is more 
 permanent or that ho holds the expresi inviution of the local government to justify his 
 longer residence. Nor does il nlTect the ipieslion that the injury was an act of a mob. If 
 there had been no participation by llie police or military in this crui'l work, and no neglect 
 on their part to extend proicclion, ihe ca.'e would still be one, in my opinion, when ila 
 extent and character are considered, involving inlernational riglils." 
 
 • See lolU'r from Mr. K,'an lo Mr. Foster of July 16, 181'2. already quoted io full in 
 the notes to Ihis point. 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 57 
 
 Tlie Chesapeake Sailors. 
 
 It is, of course, unnecessary to recite tlie details of the attack of tlie 
 Britisli man-of-war Leopard on tlie United States frigate Chesnpmlce otf 
 Hampton Koads, in .Tune, l.SOT. 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 
 Cliempc'ike, and he demanded their delivery. They were American 
 citizens and the demand was refused. The tertjor^rr? opened fire upon the 
 C'hesapcal-e, which was unprepared for an engagement, and was obliged 
 to surrender after a brief resistance and allow the men demanded to be 
 taken from her. During the engagement three men on the Clieaapcdl-e 
 were killed, eighteen wounded and four cai)tured. The attack was one 
 against the sovereignty of the United States to the last degree. f There 
 was no 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 ofticer of Great Britain upon a naval otticer of the United 
 States. 
 
 A tlemand 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 be 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, 
 1S09, 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 tlie Leopnrd-Chexnpeuke affair, see 
 •A Am. State Papers, G, 21, 22. 
 
 t In referring to the matter President Jefferson said, 3 Am. State Papers, 24: "At 
 length a deed, transcending all we have hitherto seen or sufl'ered, brings the public sensi- 
 bility to a serious crisis, and our forbearance to a necessary pause. ,\ frigate of the United 
 States, trusting to a state of peace, 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 has been disabled from service, witli tlie 
 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 war of the United States a part of her crew; and that no circumstances might be 
 wanting to mark its cli.aracter, it had been previously ascertained that the seamen 
 demanded were native citizens of tlie United Stales." Tlie foregoing is quoted from the 
 President's proclamation of -Inly 2, 1807, requiring British vessels to depart from the 
 waters of the United States as the result of the LeoparrVx attack on the ChesajKahe. 
 
 \ 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 e-vpect 
 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 (juestion whatever was raii^ed by either government as 
 to the right of the Government of the United States to dcniaml indem- 
 nity for sailors killed wliilc they were on duty, defending their vessel 
 against an unwarnmti'd uttatk 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,! •-"''^ the British Government 
 disavowed it. In November, IS 11, however, the British Government 
 authorized its minister at Washington to renew the olTer. including "a 
 suitable pecuniary provision for the sufferers in consequence of tlic 
 attack on the Chesapeake, including the families of the seamen who 
 unfortunately fell in tlie action."J This proposition was accepted by 
 the United States. g 
 
 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 tiiey 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 powur; 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. Ergkine to Mr. Smith, April 17, lSii!>. and April 8, 1803, 3 Am. Slate Papers. 
 295, 297. 
 
 \ Mr. .Smith to Mr. Krskine, April 17. 1809. 3 Am. Slate Papers, 290. 
 
 \ Mr. Foster (British Minister) to Mr. Monroe (Secretary ol State): " Washington, 
 Nov. 1, 1811. * * • (The propositions were as follows): 
 
 " First. That 1 am instructed tn repeat lo the American Governn.cnt the prompt dis- 
 avowal made by His Majesty (and recited in Mr. Erskine's note of April 17, ISny, l<i 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 iinmcdintely ensued, as a mark ol His Majesty's disapprobation. 
 
 " Secondly. That 1 am anthorizid lo dlfi-r, in addition to that disavowal on the part 
 of His Royal Highness the immediate restoration, as fnr as circumstances will admit, of 
 the men, who in consequence of Ailmiral Berkeley's orders were forcibly taken out of the 
 Chtnapeake, to the vessel from which they were taken, or, if that ship should no longer be 
 in commission, to such siaporl of the United Stales as the American Government may 
 name for the purpose- 
 
 "Tlilr«lly. Tli;il I aiii iilso aut liori/«<l lo oiler to tlie -\iii«'ii< an 
 GovcniiiitMit a siiilabU' |><><-niiinry pro* i.sioii for tlio siiHt-ror"* in 
 <'onso(|iionoo of (In- :i(ta<'K on tin- Cheandptahr, invIiKlin^ tlie 
 laiiiilii's of t lioso sraiiirii wlio iiiil'ort tiiial<-l> It'll In Hit- art ion iiikI 
 of t lie \Miiiii(lcil >iir\ i> or.S." 'A .\in. . 'State Papers, 49'.'. .MH'. 
 
 i Mr. Monroe to Mr. Foster, November 12, 1811, S Am. Sutc Papers, BOO. 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. 59 
 
 The General Arm^>t^ong. 
 
 When, in direct violation of neutral rights, the British fleet attacked 
 the privateer brig Geiicral Armstrong* in Fayal harbor, in 1814, during 
 the wai' of 1812, 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 privateersnien whose gallant conduct had proved so effi- 
 cacious at a critical moment to tliis country ; that did not interfere, 
 however, with the State Department pressing a claim against Portugal 
 for the owners of tlie 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 orew for tiie 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 w^ere privateersnien, and as such fought under 
 the Stars and Stripes and received prize money from Congress. 
 
 The Wyoming. 
 
 When, in ISHS, an attack was made upon naval vessels of the 
 United States and of other powers in the Japanese waters, and 
 in the Straits of Slumonoseki, Japan was obliged not only to ren- 
 der an apology but also to pay indemnities to the French, Dutch, 
 British and United States Governments aggi'egating 13,000,000; sub- 
 sequently, Japan having fully atoned for the offense, the United 
 States relumed 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 tlie 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 Wi/owing, 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 
 (t se(j. and see also p. c,],aiite, of tiiis brief. The General Armstrong was not a regular 
 naval vessel belonging to the United States; it was, however, a dulj- commissioned priva- 
 teer sailing under letters of marque, and the fact that Congress voted prize money to the 
 ciew shows that the men occupied a qnmixia.v&\ position. See Act of 1834, 6 U. S. Slat, 
 at L.. 603; S. n. Doc. 2.31. 56th Cong., 2d Sess., Part. 1., for numerous reports in regard 
 to this ease ; Act of 18S2, 22 U. S. St. at L., 697 ; Act of 1895, § 1. 28 U. S. St. at L., 843. 
 
 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 wliich the 
 claimants cite the Wyoming is that the United States received from .Japan two separate 
 funds— one for ?750,O00 to atone for the insult, which was refunded in full, the other for 
 .* 140,000, which was received for indemnity for expenses and for the crew. This was re- 
 tained, and the distribution to the crew, although 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 .lapan 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 
 
fiO BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 Tlie Water Witcli. 
 
 In 1855 the Government of the United States sent out a naval vessel 
 called the Water Witch, iinilor tli? command of Lieutenant Thomas J. 
 Page, to make a survey of tlie triijutaries of tiie llio 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 the P.irana River, and proceeded a few miles above tiie point 
 where it forms tlie common boundary between Paraguay and Argen- 
 tina. At tliat time Lieutenant JefTi'rs, who was then in command of 
 tlie Water Il'f/c/^, perceived that tlic Paraguayans were getting guns ready 
 apparently for an attack; ho tiiereupon cleared his vessel for action also. 
 A Paraguayan canoe came along.sidcand a man Iianded Lieutenant Jeffers 
 a [laper written in Spanish, whicii lie declined to receive. Thereupon he 
 stood up the river with his crew at quarters. Two hlank cartridges were 
 fired by the fort in quick succession, and these were followed by a shot 
 which carried away the wheel of the vessel, out the yo\)cs and mortally 
 wounded the helmsman. On receiving this fire Lieutenant Jeflfers 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 wiis a common 
 boundary between the Argentine Confederation and Paraguay he had 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, hut whose sympathies, of course, were with the South 
 American countries. 
 
 Notwithstanding the fact that the man at the wheel of the Water 
 Witch was doing his duty on an occasion in whii-h actual hostilities oc- 
 curred, the United States demanded ^10,0()i) 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 
 (iovernuient in their brief have erred in saying that this matter was 
 found liy an arbitration committee to be wi;hout foundation, as tiie 
 IIo|)kiiis claim, and not the Water Il'iVr// claim, wiis submitted to arbi- 
 tration, and the Paraguavan Government, at the same time that it re- 
 
 funt) was placi'il by the Senate Committee on Foreign Relations not oc the grounds of 
 uraluity but on those of juatici', appears from report Xo. 120, ^7lh Congress, 2ii Session, 
 .luly 7, 188 ii (Doc. 231, p. 44n) in whicli on page 453 it is 8ai<l that justice and equily re- 
 quire that Congress should recognize the claims of the crew. " Their claim is based upon 
 the convention by which they wore intended to be provided for, upon the fact that 
 $140,000 was set apart for them by the other contracting parties and paid lo the United 
 States in virtual Irost for them." 
 
ARGUMENT OF CHAS. H BUTLER IN MAINE CASES. 01 
 
 ferred the Hopkins claim to arbitration, voluntarily paid the iudemuity 
 for the sailor of tlie Water Witcli* 
 
 Tbo Hiiesken Case. 
 
 In .lunuary, ISOl, Mr. Iluef^ken, tlie interpreter to tlio Japanese Lega- 
 tion, was assaulted and killed; tlie United States at once demanded 
 punishment of tlie offenders, an apology for the offence and an indem- 
 nity for the widowed motlier of 'Siv. Huesken, all of which was accorded, 
 and the sum of llO.dOo was paid by the Japanese Governmentaud trans- 
 mitted to Mrs.IIuesken.f 
 
 The Spanish Consuls in New Orleans and Key West. 
 
 In all the cases jusr cited the United States demanded and collected 
 indemnity from foreign powers; it has aXao pai<l indemnity under similar 
 circumstances. 
 
 *A full account of the Water Witch ami Hopkins cases, and the relations of the United 
 States with Paraguay arising therefrom will be found in Chapter 22, 2 Moore International 
 Law, p]). 1485 et seq.; and see the report of the Secretary of the Navy, December 2, 185(1. 
 
 •f See message and diplomatic correspondence for 1862, pp. 804-807. 
 
 In a letter of Mr. Harris to Mr. Seward, November 23, ISfil. he says: "In your 
 dispatch of August 1 (No. 18) you informed me that you urgently insist, except that, in 
 the e.^tremest 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 woidd be best to secure, if possible the punishment of the assassins; but circum- 
 stances unknown to you must enter into the question, and may modify 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 Hag; or, 3, by a money 
 payment 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 pjiyments or in a sum 
 sufficient to purchase a life annuity equal in amount to the income she received from her 
 late son, I stated, very emphatically, that they must not consider this a propositiom from 
 me to sell the blood of Mr. Huesken, or that the payment of any sum of money cuukl atone 
 for his murder. 
 
 ••After a few explanations liad been asked and given the ministers promj.tly 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 diplom.itic 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 exhibiiion of the animosity of 
 the Japanese people against foreigners, and especially against the United States. 
 
63 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 In 1851, when the news of tlie summary execution in Cuoa of Crit- 
 tenden and otiier members of the Lopez expedition reached New Orleans 
 and Key West, tliere were strong anti-Spanish riots in botli cities, in the 
 course of which Spanisli citizens were assaulted and their property 
 destroyed. Among those who sufTered injury were the Spanish consuls, 
 and a reclamation was made ujjon 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 indemnilied 
 because they occupied an oflBcial 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 jx'r- 
 mit its representatives, cither civil or military, to be beaten and killed in 
 a foreign country without demanding suitable reparation, f 
 
 The Margery Case. 
 
 In 1S75 Mr. Margery, an English dflicer and five Chinannin acinm- 
 panying him on an exploringinissiim from British Burmah. weri' kilU-d 
 by native soldiers and the British Minister at once demanded that the 
 British Government should be allowed to renew the exjicdition and that 
 an indemnity of 1.50. 000 tacls sliould be paid, of whirh :iO,000 taels was 
 to go to Margery's family. In this case, ilr. Avery, United States 
 Minister, united with the British Minister (as did also some of the 
 other foreign ministers) in demanding that the Chinese Government p.iy 
 this indemnity for the death of a British officer. J 
 
 Tlie IJritisIl Sailors in .lapaii, 
 
 lu ISGi British sailors on duty at the Brit sh Legation at Yedo were 
 killed in a numner for wiiich the Japanese (iovernment was resiionsible, 
 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 n full aocoiint of tlirae occurrences sec 2 Wharton, § 226, p. 601. 
 f Sec extract!! from Mr. lilaine'g instructions of .lanuary 2, 1892, on p. 53, uti/c, of lliis 
 brief. 
 
 { Kett43r of Mr. Avery to Mr. Fish from Pukin, April 1, 1875, U. 3. For. Rcl., 1876, pp. 
 310 fttfij. 
 
ARGUMENT OF CHAS. H. BL'TLER IN MAINE CASES. 63 
 
 Government, " wliieli was not to be iiioditied, delayed or even discussed," 
 l)iit to be met within twenty days.* 
 
 The French Corvette Dupleix. 
 
 On March 8, 18GS, wliile the French frigate ]'c7ius and French cor- 
 vette Diiplei.c were in tiie port of Sakai, Japan, a nnniljer of J;ipanese 
 armed men attacked the steam launch of the DupJeix at a landing, 
 eleven men, i)icluding the midshipman in charife 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, but 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 
 ofticers 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 Xavy. 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. Fi'u^'ti to Mr. Seward, from Legation of tlie United States in Japan, 
 Yedo, April 10, 186:i : 
 
 "Sir: I have the honor to inform you that Lientenixnt-Colonel Neale, her Britannio 
 Majesty's charge d'affaires, read me a commnnication a few days since, while I was on a 
 short visit to Yokohama, which he was about sending to the Japanese Government, agree- 
 abh' 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 is again demanded; for the murder of Mr. Richardson and the wounding of his 
 companions on the tokaido in September last, an apology is demanded frimi this Govern- 
 ment, and also the payment of £100,000 sterling. 
 
 "At the fame time a frigate is to be sent to the territory of the Pi-incc of Satsuma 
 (about sixt}- miles from Nagasaki) with a demand for the payment by him of the sum of 
 £25,0011. and that the chief murderers of Mr. Ricliardson shall be executed in the presence 
 of a Bi'itish officer. 
 
 "A British flfet of twelve ships of war, under command of Ilear-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 6S, Part II., p. 989.) 
 
 f A full account of this affair will be found in Diplomatic Correspondence of tlie 
 United States for 186s, Part 1., from pages 698-808; see index of that volume for the 
 particular dispatches which refer to this incident. 
 
C4 rtEFORE 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 w^ay 
 relieve Spain from responsibility therefor, 
 and the doctrine of exterritorialty applicable 
 to jurisdiction of the sovereign ownins: 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 tliat tlie counsel for the claimants lieanl 
 the counsel for the United States who opened and closed the arjrument 
 for the Government declare that the fact that the injuries for which 
 the petitioners have filed their claims, were not received within tin- 
 jurisdiction of Spain, and therefore Spain was not liable therefor to the 
 United States or to tlie i>otitioners ; 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 lor the 
 claimants when they heard United States counsel, 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 tlie foreign port which such vessels might 
 visit, from liability for deaths of, and injuries to, the officers and crew 
 of such vessel it-sulting from the wanton destruction thereof. 
 
 There is no rule of international law which it is more important for 
 the 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 tiiereon : this thought must have been upjicrmost in the 
 mind of Secrttary Sherman when he penned the instructions of .March 
 •-'•'•th. is'.is. 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 ander Ninrtreiith Poinl on p. "5. poil. of this brief. 
 
ARGUMKNT OK CHAS. H. DUTLKR IN M A I N K CASES. 05 
 
 TliG entire arriDUiit, ul' tlu^ (•liiims which have hcen liled witii (]iin 
 trilniiiaj on account of the destruction nl' the Mfiinc equals al)Oiit one- 
 half tile aveni^a' value of Ihe Ir-ittlesliiiis of llie I'liited Slates Navy, and 
 thcn-efore the necessity of Triaintaiiiing thi- rule of co-existent exterri- 
 torial jurisdiction ami li>cal |ii-iileetion is inlinitely more inijiorlant for 
 the United States than it is to defeat these claims. Notwithstanding 
 the immense amount, as well as the princii)le, which is at stal<e, counsel 
 for the Government in these cases have enunciated as a jirincijile 
 of law that when vessels of the United States are in foreign harhors 
 the State in whose water they float is exempt from care or liahility per- 
 taining to their man:igenient and control. 
 
 'I'liis maybe true as to what happens <in the vcssid, Init the Attorney- 
 General e.xtends the exemption to relieving the local sovereign frcmi 
 affording any protection Id 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 (xn-t to jirotect ilsidf and to guavd against 
 disasters similar to that which hapjiened to the Moine, and furthermore 
 it will shift fnmi the sovereign of the port to the United States not 
 only the imrden 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 <juoted, and the italics in 
 the quotation are his own.* 
 
 The propositions of the Attorneys-General in this respect are so 
 monstrous that it is practically impossible to refute them. It is the 
 first time that the doctrine of exterritoriality, which has been enun- 
 ciated, sustained and expanded solely for the piirpo.se of affording pro- 
 tection to the vessels of one sovereign power in the territory of another, 
 
 *" It is sabmitled that no iiidiviiJual claim fur iiidi-mriity against Spain arose out of 
 the explosion of the M'tUu under the circumatances ; and that if any claim orljjinated 
 from that occurrence it was a national claim. And this results from the peculiar fiitua- 
 tion. As a public vessel of the United Statv.s, the Mnin/. although at the time of its 
 destruction was physically within the territorial water? of Spain, yet she was not within 
 the jurisdiction of Spain. Public vessels of a State paasin;^ through or anchoring in 
 foreign waters enjoy an exemption from territorial jurisdiction under a well-recugnizcd 
 principle of international law. In these circumstances tliey enjoy absolute immunity 
 from the ex.^rcise of jirisJiction by the local authorities. They are considered, as it 
 were, projections of foreign terriu>ry. subject only Vt the jurisdiction of the flags they 
 bear. Ax lliey are ezemptfrom local jurisdiction. Ihe SUUt in mlione walert the;/ Jloat in cor- 
 Te»}Miidingli) exemjit from ani/ care or liability perlaittiii'/ lo their munagemejit and cuulrol. 
 * * * 
 
 ■ From the 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 Imnlensome. The-e consequences, however, do not affect or modify the 
 rule of international usage in this regard. As in many other situations which are 
 familiar in law and custom, the maxim applies, lini neutil roiniHodunu entire debet el ovut: 
 He who derives the advantage ought to sustain the burden." 
 
GG BEFOKK THE SPANISH TKKATY CLAIMS COMMISSION. 
 
 lias liuc'ii dislortuil into u geiRTiil licLii-se lo destroy sliijis and iiiuii with 
 iiii|MiMity : and, if it were not for tlie fact that able counsel devoted at 
 least two hours to maintain tiu'se propositions, it would be passed over 
 with a mere mention in tliis brief: inasmuch, however, as the proposition 
 was seriously i)resented 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 i>osition of 
 the United States in tliis regard was deKnitely, clearly and concisely set 
 forth within a few weeks after the occurrence, and the extract from Sec- 
 retary Siierinan's instructions of March 20 to .Minister Woodford, which 
 is (ini)ted under another point is the enunciation of the i)ro|)er depart- 
 ment of the Government of the United States upon this subject, and 
 should certainly be adopted by tliis Court, not only because it was such 
 an enunciation, but because it was a correct statement of the situation. 
 
 On March 20th 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 (Jovernment that the Miiiiie 
 had entered the harbor of Havana, relying upon the security and pro- 
 tection of a friendly port, and that while she remained ns lo what took 
 phire OH board under the jurisdiction of her own government, the con- 
 trol of llie liarbor remained in l/ie Spani.s/i (lovernment, which as the 
 norereif/n of the place was bound lo render protection to jwrstm.s and prop- 
 erly there, and especially lo llic public atiip and tite sailors of a friendly 
 power.* 
 
 Secretary Sherman summed the whole case up in that paragra]ih. 
 The United States retained jurisdiction, but the Spanish Government 
 was bounil to afford protection. 
 
 The Attorney-Generars proposition practically means that the bur- 
 den of protection of, as well as jurisdiction over, a battleship of the 
 United States Navy in a frieiully port, devolves ujwn the United States: 
 if this is sustained it 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 wliich the United States always affords, actively, and not 
 passively, to the warships of otlier friendly nations within its ports.f 
 
 • See extracts from Scrrctnry Sbermnn's instructions lo Minister Woodford nn p. 
 Tl, poll, of this brief. 
 
 I Wlien llie Spnnisli warsliip Vitcuifa viaitvcl New York in Kebrunry. 181(8, every 
 p4>!iiiible precmilion was tiikun Ui insure ils safety. Police nnd reveuue cutters guariled 
 it iiigbt and day, nnd persons withi>ut authority were not permitted In npproacli within a 
 rcrtuin distance of it. The cnrrcspondeice in roijnrd to the cxoliBnge of vioils of the 
 Spaniah and American war vessfls i* referred to in U. S. For. Kel., 181'8. under Spain; 
 see sub-head Uatlle.'<liip Mainr, 
 
ARGrMENT OF CHAS. n. Bl'TLEK IX ilAINE CASES. (it 
 
 The doctrine of osterritoriiility api'lies (qually to ships of w;ir and 
 to the residences of foreign ambassadors and foreign ministers* 
 
 In neitiier case does the local jurisdiction extend over the ship, 
 the embassy or the legation, but ihe local sovereign is bound to protect 
 the ship and the residence, and also the people thereon and therein. 
 
 Vattel declares that the '■ indepeiuleney of the ambassador would 
 be very imperfect, and his security very precarious, if the house in which 
 he lives were not to enj^iy 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 l)e safe from all outrage, being under the 
 particular protection of the law of nations and that of the country ; to 
 insult it is a crime both against the State and against all other nations "f 
 The sl:,atenient ol the law in Secretary Shrfrman's letter to Minister 
 Woodford, which has already been cited, is almost a paraphrase of 
 Vattel's position as to immunity from local juri.sdictiou and the co-ex- 
 isting right to rely upon tlie 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 
 of the ablest authorities on international hiw in the United States. The 
 second edition of his "Elements of International Law." originally pub- 
 lished in L'^ST, appeared in I'.iOO. 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 jiort 
 must render protection, he cites the case of The E:cchange,X and tliere- 
 atter 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 eniimeniting the instances in wliicli tlie mimieipal institntions of a 
 State may operate bejond the limits of its territorial jurisiliction, specilies : 
 
 ■■(1) person of the sovereign ; (2) the person of the ambassador and his residence; 
 (3) the foreign array or fieot marching through, sailing over or stationed in the territory 
 of another State, and in tlie absence of any express prohibition the ports 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 ships are exempt from the juris- 
 diction ol 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" (Dan.a's Sth Edition, ISflB. fart 2, Sec. 9,5, page I5S). 
 
 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 th.' jdace " (Id., s 1"0, p. 159), 
 
 f Vattel, Bk. 4, Ch. 9, g 117. 
 
 \ Schooner Exchange vs. McFadden,V- S. Sup. Ct., 18; 7 Cranch, 103, Marshall, 
 Ct. J. 
 
68 BEFORE THE SPANISH TKEATY PLUMS COMMISSION. 
 
 sel, which brought a prize into tlie port of California, and the captain of 
 which refused to rtcogiiize process issued by the United States, and was 
 sustained therein by the Attorney-General; he also cit<s under the same 
 hiiul the cases of the Baltimore, the Cunn/iiufion* and the Maine. 
 
 Professor Davis published his last edition before any claims had 
 been filed on behalf of sutTerers of the Maine. He has occn])ied a 
 position of great importance under the United .States, that of instruct- 
 ing the men who were to be the officers in its army, and who necessarily 
 should possess a complete knowledge of the i)ractical relations of the 
 United States with foreign countries; it cannot be presumed that he 
 would improperly imijuteto a foreign nation lack of care and protection, 
 or charge it witii any greater degree of care and protection than the 
 principles of international law actually re<(uire. His opinion, there- 
 fore, in regard to the responsibility of the Spanish Government for the 
 destruction of the Maine is entitled to be received with great weight 
 i)y this (joniniission, and as he covers in his brief review of the case 
 both the (luestiou 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 priviloji-e of exloi-ritorialily is iMlniittod lo oxteiul only 
 to tin' odic'ors ami crews ot |iiil>lii' iirmcd vessels, and }roos no 
 Inrtliei- lliiin to exenipl tlie vessel aiul erew from the operations 
 ol the ItM'iil laws. It eonl'ers no anllioril> npoii the ollieers of 
 the >isitin^ vessel to resort to nieasnres of ilelen<-e. or of 
 prt'oantionary police, ontsiile the ship, or within the territorial 
 waters ol the State in whose harhor it is an<-hore(l ; f<ir snch 
 proleetion from pnrely external injury the ship must rely upon 
 the ellorts ol th«' loeal ant lioi-il ies. whose duly and r«'sponsi- 
 hilil.N it is to resort to sneh measures ol |ire<':int ion as ar«' 
 sn};t:«'ste<l hy the eniei-i;«'nr> of tin- oecasion," and that — 
 
 "If, in \iew ol the loeal sitnalion. or in <-onse<|nen<e of its 
 strained relalions with tin- <;o^e^nment of the I niled Stales, 
 the Spanish (ioxernment was either nnahle or nnwlllin<^ to 
 eliarye itself with the safety and security of the >Iaine. it 
 should have withheld its eonseiit to the entry of the vessel 
 into its ti-rritorial waters; failing to do this, timt fro\crnmoiil 
 
 was, justly held res| silde for the disaster which ensueil iijiou 
 
 its failure to cxercis*- the dilifjenee whi<'h was demanded hy 
 the circunistiuices ot the vitsc."f 
 
 * In tliis Oll^«■ ihe Adinirnlly Courts of Great Britnio refiiseil to take jurisiliction of a 
 salvoge CB8C n);niD>t n vessfl bi'lniiKinj; to the V . S. Navy. 
 
 I " Catt of Ihe •• Miiiue." Tin- I'nili'd States bnttleship Ma'int entered llie liarbor of 
 Havana, Cuba, on January 25, 1898. Immediately upon ber arrival. Ibe ctistomary 
 uivililies were exchnngcd and llic vessel was conducted, by a government pilot, to the 
 ancborai;!' assigned ber, as a forei;;n vessel of war, liy the local naval authorities. Hero 
 the sliip reiimini'd at anelior for a period of about tliree weeks. Purinu that lime it dix'8 
 not ajipear that any sjiecinl measures of precaution were resorted to by the Spanish 
 tJovernnient Willi a view lo insure the safety of the visitinij veesel. At V.4il p. m., oo 
 
ARGUMENT OF CHAS. H. BfTLER IX [MAINE f'AfFS. (lO 
 
 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 Uoveriimeiit have endeavored to limit the use of the 
 word "claims" as used in Article VII. of the treaty of 1S9>S to the de- 
 February 15lh, beinp; at the time mooreil to the buoy assigned her upon her arrival, the 
 Maine was ciestrnyed 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 imiue- 
 diately convened by order of the United States Government, which, after a careful and 
 exhaustive investigation of the circumstances, reached the opinion that the destruction of 
 the vessel was caused by the explosion of a mine exterior to the shii), and was not due to 
 the fault or negligence of her officers and crew. .-Vn inquiry instituted by the Spanish 
 iJovernment, after a less complete investigatifm. is believed to have reached a difl'erent 
 conclusion; but the position of certain parts of the ship's structure, in consequence of the 
 explosion, including portions of the keel, the outer shell, and the outside bottom plating, 
 were such as to offer conclusive proof that the destruction w.is due to an exterior exjdo- 
 sion. By whom and under what circumstances the destruction was caused has never 
 been determined. It is jtroper to say, however, that the act was promptly disclaimed by 
 the local colonial authorities, and it has never been authoritatively suggested that the 
 injury was ordered, or authorized, or even countenanced, liy any branch or [lortion of the 
 governmental authority of Spain. 
 
 " .Although the relations existing between the governments of the I'nited States and 
 Spain were strained at the time of the occurrence, the circumstances altendini; the entry 
 of the vessel were by no means unusual, and the visit was not made until a conference 
 had been had with the Spanish minister in \Vashir:gton. in which the renew al of the visits 
 of public arme I ve^jsels of the United States to Spanish waters had l)eeu discussed and 
 accepted, and the governmental authorities at lladriil and Havana liad been advised of 
 the purposes of the United States Government to resume friendly naval visits at Cuban 
 ports, and that in that view the ilahie would f >rtliwith call at the jiort of Havana. 
 
 " The case is novel at international law in that it gives rise to a ijuestion as to 
 the nature and extent of the responsibility incurred by a state whicli, under the cir- 
 ctimstances abnve set forth, permits a foreign vessel of war to enter its ter- 
 I'itorial waters. The rule of international law applying to the case is believed 
 to be correctly slated by Chief .(ustice Marshall in the case of the Exelimige in 
 the following terms: ' Unless closed by local law, the ports of a friendly- nation are C(jn- 
 sidered as open to the public ships of all powers with whom it is at peace, and they are 
 supposed to enter such ports, and to remain in thetn, while allowed to remain, under ihe 
 protection of the government of the place.* [Then follows the tirst quotation in the text.] 
 
 " Where independent nations are concerned, the degree of care to be 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 nuist be proportioned to the risk of such 
 injury occurring to the vessel of a friendly nation which may hai)pen 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 
 
1*0 BEFORE THK SPANISH ThEATY CLAIMS COMIIISSIOK. 
 
 inaiuls of citizens of tlu- United States against Spain which had been 
 proscnted by tlie United Stales to Spain prior to the execution of the 
 treaty. This is utterly untenable, because tlie reliiuiuishment clause was 
 made as wide as imsfible. It iiuliided '"all claims for indemnity, 
 nation;d and individual, of every kind,"* and that necessarily includes 
 all claims and uemaiuls whether presented or not. In fact, the fallacy 
 of the Government's jiosition is clearly (Umonstrated by the fact that the 
 relin(iui,shment included claims tiiat "may have arisen since the i)egin- 
 ning of the late insurrection in Cuba and jjrior to the cxoliaiigc of 
 ratifications of the present treaty." It was manifestly impossible to 
 have meant present! d claims when the words '' miiij hari' uiixen" were 
 used as to chiinis prior to the signature of the treaty, and the relinquish- 
 ment included claims which might possilily have arisen in the future 
 period of imlelinite length which necessarily ensued before the treaty 
 could be ratified by the Senate and the ratifications formally exchanged, 
 an event wiiich did not actually occur until four months thereafter. 
 
 Counsel making the closing argument for the Government denied 
 tiiat rij^lils of citizens for indemnity were claims within the meaning of 
 the relimiuisiiment clause of tiie treaty until taken up by tlie I'nited 
 States Government and presented against Spain directly or by a sample 
 case, or by imi)licatioii.f 
 
 The dehnitioii of tlu' word " claims " is too well known to recjuire 
 any elaborate argument on the part of tiie claimants to refute the Gov- 
 ernment's proposition. The relin(|uisiiment 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 (daims 
 assumed. That is, the relinquishment clause as against Spain, the as- 
 sumption (dause as against the United States, and the clause conferring 
 jurisdiction on this Court are all co-extensive, each witii the other, and 
 no hair-splitting distinctions can deprive a citizen having a just claim 
 
 a friendly liarbor, are siifrsjcsled by (lie f«cl llint llie crew art- not only strangers to the 
 port, but are nii-nibers of a diffi-rrnt nationality, and thus occupy a very dilTerent relation 
 from tlial of ordinary alien.'; in llic case of Ibe Maiiir, a resort to cuch preventive 
 measures wa.H not only sanctioned by the rules of international law, but required liy 
 express treaty stipulations, and strongly suggested by tlie straineil relations existing 
 between the United Stales and Spain." [The article concludes with the second (piotalion in 
 the text.] (The Elements of International Law. lU (ieorge !>. Uavis, New and Revised 
 Edition. lUllO, pp. 77-80.) 
 
 • For Article VII. in full, see note on |). 2. auU, of this brief. 
 
 f The following colloquy occurred during the closing argnincnl as appears from the 
 jirinted argument of Mr. Kussell (pp. .')5, ;Ui): 
 
 Mr. C11AM11.EK. Well, this si'ciicm [Art. Vll.i.l the Treaty] includes individual claims 
 of every kind. 
 
 Mr. iU.s.sKLi_ There may be a right and no claim, a claim and no right. 
 
 Mr. CuANDLER. Tell us what the rights arc that are not claims. 
 
 Mr. lUissKLL. 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 otherwisa. 
 
AKGUMENT OF CHAS. H. BL'TLER IN MAINE CASES. 71 
 
 against Spain, no matter in what condition it was on Deci'inlicr Kitli, 
 1898, from having the same adjudicated by this Court and the Fnited 
 States Government chai'ged therewith. 
 
 Tiie claimants do not consider that there is any liasis wliatever to (lie 
 (iovernnient's eontention that it can avoid jiaymcnt of just claims of its 
 citizens because it failed to properly present them or include them 
 specifically in the reliiupiishnient; they do claim that the Maine claims 
 had heeu presented not only by implication which. Mi'. Kussell admits 
 would be sufficient, but directly, to the Spanish (iovernment, and repara- 
 tion had been demanded therefor, and this will l.)e demonstrated by ex- 
 tracts from the correspondence between the e eciitive department of the 
 Goveinment and the Spanish Governnieut, wdiich are cpioted in the next 
 point.* In this point, liowe\er, it will be shown that even if the Maine 
 claims had never been formally, or e\en liy implication, accejited 
 by the United States and presented to Spain, they would still be. as 
 they undoubtedly are, included in the relinquishment, assum[)tion and 
 jurisdictional clauses of the treaty, and the act creating this coin- 
 mission. 
 
 This Court will remember that the secretary and counsel of the 
 .Vnierican Commissioners in Paris was Mr. John B.jssett Moore, whose 
 knowledge of the form of and terms used in claims con\eutioMs prob- 
 ably exceeds that of any other person. A'ot only every claims conven- 
 tion made by the Uuited States, but many made fiy foreign ]iowers be- 
 tween each other for the purpose of releasing claims have liecn carefully 
 studied and ccuninented uptui hy liim in his great work on international 
 arbitration. The general presumption, therefore, that plenipotentiaries 
 mean wdiat they say and say what they mean in mutually releasing 
 their respective Governments fr(nn claims national and individual of 
 every kind is strengthened Ijy the fact that in this }iartieular instance 
 the protocols show that the e.xact wording of the articles was left to the 
 Secretaries-General. t (jne of whom was .Mr. Moore, who could not 
 possibly have used words which were not intended to exactly express the 
 extent of the mutuiil releases. 
 
 XotwitlistaiKliiii;' the elaborate uriiuineiit made b.y tlie <'<nin.sel 
 elo.siny the ease tor the <;<>* erimieiit, it has Ijeeii «ell estahlislied 
 that elaiins which had not been forinalli presented by the asking 
 Government on beliall ot its citizens to the tio\ernment upon 
 whom the demand is made, are uot excluded from the releases 
 eontained in claims conventions, or from the .jurisdietion ot a 
 triluinal to whi<li claims are referred lor arbitration. 
 
 'Y\\Q Cixae oi Axpinieall \s. ]'cne:i<el<i has already been referred to at 
 some length, in which it was decided that claims ex ciintractn could lie 
 considereil by an arbitration tribunal created by the Convention between 
 
 * See page 75 et seq., post, of this brief. 
 
 f See Doc. No. 6i, Treaty witli Spaia, Protocol No. 19, p. 230, 
 
72 BEPOKE TUK SPANISH TItEATY I'LAIMS COMMISSION. 
 
 the United States and Wnrziu-la of l8S!i, altliough it was contended 
 that the correspondence related solely to claims arising ex delictu* 
 
 The coinniissionor who wrote the opinion in that case collected nu- 
 merous definitions of tlie word " chiinis," wliich include not only de- 
 mands, but the right to claim or demand; tiie matter is summed up by 
 the expression: " C'hiini is the generic term implied in the legislation of 
 the rnited States to exjiress every form and tharacter of demand that 
 one can urge against another," and the opinion adds that it would seem 
 <|iiite siiperlluous to cite particular statutes or authorities on this sub- 
 ject, t 
 
 llatl it been intended, however, by the plenipotentiaries in I'aris to 
 exclude either from tlie relinriuishment or the assumption clauses of 
 Article \'I[. claims whicii up to that time had been presented, the same 
 form would have been used to express their intention as lias customarily 
 been used in claims conventions which have been confined to a specific 
 class of claims.! and the fact that Mr. Moore had all of these treaties be- 
 fore him at tlie time is sufficient evidence that the intention of the 
 
 * See pp. 13 tl M<j., ante, this lirief. 
 
 f Moore's International Arbitration, pp. It'>22 el sk/. 
 
 } Tlie convention for the settlement of claims with Peru of 1 863 (5 Moore's Interoa- 
 lionnl .\rl)ilnili(in, 4786) provides that all claims not yet settleil between the two (;<,vern- 
 ments. " ami stulement of which, soliciting the inleiposilion of either Government, may, 
 previously to the exchan^je of the ralilication of this convention, have been fileil in the 
 Department of State at Washington or the Department of Foreign Aflairs at Lima, shall 
 be referred to a mixed commission," Ac. 
 
 The convention for the settlement of claims with Teru of 1869(5 Moore's Interna- 
 tional .Arbitration, 1787) provides that all claims, Ac. '• which may have been presented 
 to either Government lor its interposition since the sittings of the said mixed commission, 
 and which remain yet unsettled, as well as any other claims which may be presented 
 within the lime specified in Article III. hereinafter, shall be referred," &i: 
 
 The convention for the settlement of claims with American citizens made with I'or- 
 ln,'al in 18.")1 (.'> Moore's International Arbitration, 47!'l) provides that " the indemnities 
 which I'oitngal promises to pay, or canse to be paid, for all the claims pre'cnied pre- 
 vious to the 6th day of Jidy, 185i), on behalf of American citizens, by the Government of 
 the I'nited Slates (with the exception of that of the Griieral Annnlroni/) arc fixed at 
 $91,727," Ac. 
 
 The convention for the settlement of claims with Veneznela of 1867 {b Moore's Inter- 
 national Arbitration, 4808) provides that "all claims on the part of corporations, com- 
 panies or in. lividuals, citizens of the I'nited Slates, upon the Government of Venezuela, and 
 wliich may have been presenteil to their Government, or to its legation at farara-, sliall 
 be submitteil," Ac. 
 
 The claims convention with Venezuela of 18S9(.% Moore's International Arbitration, 
 p. 4810) provides that "all claims, Ac., whicli may have l)een presented t.> their Govern- 
 ment, or to iUi legation at t'aracas, before tho first day of August, 1S«8, and which by the 
 terms of tho afore-'si.! convention of April 23tli, 1866, were proper to be presented to the 
 mixed commission org.inized under said i-onvention shall be submitted," Ac. 
 
 The convention with Mexico for tlH' ailjiislnient of claims of 1839 (5 Moore's Interna- 
 tional Arbitration, p. 4771) provided that "all claims of citizens of the I'nited States 
 upon the Mexican fJovernment. statements of which, soliciting the interposition ol the 
 Government of the I'nited Slates, have been presented to the Department of Slate or to 
 
ARCil'MENT OF CIIAS. H. BUTl.EK IN MAINE CASES. '^'■i 
 
 American t'lunniissioiiers was to cover every possible right or claim of 
 every kind which either had been, or coiikl be, urged by one government 
 against tbe other. 'I'lie correspondence between the State Department 
 and tlie Spanish Guvernnient. Ilircnigh Minister Woodford, and the sub- 
 sefjuent correspondence jirior to the dechiration of war; the letter of 
 Secretary Day to the Duke D'Ahnodovar del Kio, of July ;Wth. 1808; and 
 the correspondence between Mi-. Day, as President of the American Com- 
 missioners in Paris, and M. Itios, one of the Spanish Commission, are all 
 set forth at length under the nexti)()int,* and will not be referred to at 
 length here, except to say that the correspondence before the war 
 contained a direct cliarge 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 cin-umstances, and that the 
 letters of Secretary Day referred to claims of our citizens for injuries 
 to person and property, and that therefore the demand was complete 
 and the claims could he 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 (daims 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 (rovernnient upon the other for any cause whatso- 
 ever which was based upon a nuitter hajipening prior to the ex- 
 change of the ratifications. If the ingenious argument of the counsel 
 for the Government is coiTect, and the relinquishment clause does not 
 cover what he calls abstract rights or unpresented claims, then the 
 United States is in the position of not liaving been released by Spain 
 from claims which had not been presented to the United States, and Spain 
 is U(.)t released from such " abstract rights " of United States citizens as 
 theii- Government may now see tit to take up and present to Spain de novo 
 and denumd additional indemnity to that already received, and which 
 Spain was certainly justified in believing was in full for all possible 
 
 tlie diplomatic agent of tlie Uiiiled States at Mvx\co iiiitil l/if sii/nalure of this cotweiilwii 
 shall be referretl." etc. 
 
 The couventioQ with Mexico foi- tlie settlement ol' claims of 1868 (5 Mooi-e'3 Inter- 
 national Arbitration, 4773) limits the claims to those arising from injuries to persons or 
 property * * * which may have been presented to either (xovernment 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 'id 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," ifec. 
 
 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 speciaed 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 this brief. 
 
'J'4 BKFOKE THE SPANISH TREATY PLAtMS COUMI88ION. 
 
 and contingent liabilitiei? as well for those which had been actually pre- 
 sented prior to the dcflaratioii of war. 
 
 TIm- provisions of f h<> Act of Marcli li 1 JK>1 , creatiiiff tliis Ooin- 
 iiiissioii, iiiilicMlf tliat ( 'oiii;'r<'ss iiii<I<ts(<m><I (hat cliiinis Icid Ix'oii 
 assiiiiuMi li> tlic tr<':it,v :iii<l would l><- :i<l.jii<li<':it e<l lij tills Court 
 wliieli liail not l>*-cn presented l>.v tlie Cioveninieiit of tlic United 
 States to Spain. As has already bei'ii statetl, the reliii<|uislinK-nt and 
 assumption clauses of the treaty and the jurisdictional clause of the Act 
 are co-extensive each with the other. Had Congress considered tiiat 
 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. 
 Instead, liowever, ol simply providing that the claims in the Department 
 of State siiould be transmitted by the Secretary to this Commission, it 
 e.\i)ressly provided that claims cnuld be fded de tioru by the claimants for 
 a period of six months after the lirst session of the Commission and 
 created no limitation in regard thereto based upon prior presentation.* 
 
 .Vll the provisions of the Act relating to the condition of the claim, 
 the tiling thereof and the limitations as to the presentation, are contained 
 in the extracts from the Act which are quoted in the note, and surely it 
 is not possible to deduce from those few clear-cut* sentences any support 
 whatever for the Attorney-Ceneral's jjroposition that the jurisdiction of 
 this Court, the assumption of the claims by the United States or relin- 
 quishment thereof as against Sjiain was in any way limited by the prior 
 presentation thereof. 
 
 ♦See. 9 of Chap. 800, 31 U. S. St. L., p. 977, whicli U llie ael appointing Ibis Com- 
 mission, provides: " tliat nvcry cliiim prosecuted before said (.'omniission shall l>e pre- 
 sented by petition s-elting forth concisely and without unneci-.ssary repetition the facts 
 upon which said claim is based, together with an iteuiized schedule setting forth all dam 
 ages claimed. Said petition shall also slate the full name, the residence and the citizen- 
 ship of the claimant, and llie amount of damages sought lo be recovered, and shall jiray 
 judgment upon the facts and law. It shall be sifrncd by the claimant, or his attorney or 
 legal representative, and be veritied by the affidavit of the claimant, his agent, attorney or 
 legal reprcseutative. It shall be filed 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 be filed as aforesaid within six monihs from the date of the first meeting of 
 the Commissiim, and every claim not filed within such time »liall be forever barred: 
 I'ruiiilfil, that the Commission may receive claims presented within six months after the 
 termination of said period if the claimants shall establish to their satisfaction good reasons 
 for not presenting the same earlier." 
 
 Section 8 of the Act provides " that all reports, records, proceedings and other docu- 
 ments now on file or of record in the Department of .State, or in any other department, or 
 certified copies thereof, relating to any claims prosecuted before the said Commission 
 under this Act, shall be furnished to the Commission upon its order made of its own mo- 
 ti.in, or at I he request of the claim int. or of the allorney representing the United SUIcs 
 before saiil Commission. The first section of the Act provides that " this Court shall have 
 jurisdictioii lo receive, examine ami adjudicate all claims of citizens of the United States 
 against Spain which the Iniled Sialis agreed to adjudicate and settle by the seventh 
 article of the treaty c.inclnded between Ihe United Stales and Spain on the lOth day of 
 December, 1898. It shall adjudicate said ilaims acconling lo the merits of the several 
 cue*, the principles of equity and of international law." 
 
ARGUMENT OF CHAS. H. BUTLER IN M.VINE CASES. - -T 
 
 NINETEENTH. -The protocols and records 
 of the American and Spanish Commissioners 
 neg-otiating- 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 w^ar. 
 
 As stad'il in the precediu"- point, coiinsi'l lor tlie Government have 
 contended tliiit tlie Maine claims were expressly excluded from tlio assump- 
 tion clause of Article VII. oT the 'I'lvaty and also ln>m 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 Secretary Day of July :i(), ISiiS, to the Due d'.Mmodovar del Rio: and 
 they also claim that the exiu-essions used in the protocols (which will he 
 hereafter (pwted at length) should be const lued liy this Court as a direct 
 promise to the Spanish Government that there would l)e no subsequent 
 adjudicatujn between the United States and its own citizens of claims 
 involving the destruction of the 3fin'iie :iiul its causes. In fact, the 
 closing of the final argument of the Government counsel was an 
 earnest jilea on behalf of tlie S|ianish (Jovernment that this Court, 
 constituted by the United States Government under the adjudication 
 clause of Article VII. would not violate the good laith of the American 
 nation by attempting to ascertain the rights of American citizens for fear 
 that it might offend and disgrace the Spanish Government. 
 
 So far from protocols of the Peace Commission and the correspond- 
 ence between the Department of State and the Si>anish Government, 
 sustaining the position of the Attorney-General, the only reasonable con- 
 struction that can be placed upon them thereon, is that the TTnited States 
 assumed all claims of its citizens against Spain, and stated to the Spanish 
 Commissioiu-rs that tlie matter as l.ctvvoeii tlie Uiiitod States and 
 Spain was olosed, and that as bet\ve«n itselt and its own 
 citizens the United States would ad.jndieate all claims, to 
 tlie ex<Insion of Spain, and in the manner in which it is now 
 ad.jndi«'atins- them, to « it. 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 tli.-m upon the merits, as ifc 
 cannot bo 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 aud be limited as to the 
 
T<> BEFORK THE SI'ANISII TKKATY CLAIMS COMMISSION. 
 
 extent of its investigation by any ffiir i<f wounding the sensibilities of 
 a fripiiilly nation. 
 
 Wiien the chiimants" counsil called atti-iition in his opening argu- 
 ment to that portion of the Government's brief which referred to the 
 inadvisability of this Court investigating this question for fear of offend- 
 ing "the seiisil)ilities of a frioiully nation," the President of the Court 
 infornii.'(l liini that it would Ik- unnecessary to continue the argument 
 upon liiat point, and ivlyiiig upon lluit suggestion connsid passed at once 
 from that l)raucli of the subject ami he does not intend to discuss it any 
 further in this brief, but he will confine the argumeut to the effect of the 
 correspondence and protocols referred to by the Attorney-General. 
 
 In order to fully a])preciate the effect of the " ])rotocols "' of the 
 Peace Commission which have been relerrcii to by the Attorney-General, 
 and which will be (pioled in full under this point, it is necessary to trace 
 the history of the Maiiif chiims from their inception, so far as the rela- 
 tions of the United States and Spain in reganl thereto are concerned. 
 
 The explosion occurred on February 15, 1S9S. During the next few 
 days several messages of sympathy were received from the Spanish Gov- 
 ernment at Madrid, and also from otiieers of the Spanish (Jovernment in 
 Cul)a, 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 C'nited States 
 was there any expression which might be construed as relieving Spain of 
 any responsibility for the act. 
 
 On Nfarch 20tli, while the Naval Court of Imjuiry was bedding its 
 sessions, the President, nlying ujion 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 Slierjnan. tliat the Naval Hoard would make a 
 nmmimous report that the Maine was blown up by a sub-marine mine, 
 and that the matter could be peacefully settled if full rejiarat ion were 
 promjilly made, f 
 
 Letters, desinitches and instructions passed in (piick sueeessiouj be- 
 tween Washington and Madrid, all of which contained imperative 
 
 * See auihorities collated on Ihi-i subject under Seventeenth Point, antr. 
 
 \''Maine loss may be puacefullj- settled if full reparation is promptly made, «uoh as 
 the inoal civilized nation would offii-. But tln-n' nniain general conditions in Cuba 
 wliicli ciinno*. be lonjjor endured, and which will dcninnd action on our purl, unless Spain 
 restores honorable peace which will stop starviiiion of people and give them opportunity 
 to take cure of themselves, and restore commerce now wholly lost. April I'lth is none 
 too enrlv date for accomplishment of these purposes. Relations will lie much influenced 
 by attitude of Spanish Government in Maine matter, but general conditions must not be 
 lost sight of. It is proper that you should know that, unless events otherwise indicate, 
 the President, having e.xli»uslcd diplomntic agencies to secure peace in Cuba, will lay the 
 whole questi..n before Congress " (f. S. Kor. Uel., ISS,*", pp. i«92, fil'8). 
 
 X (In March 22. 1898. Mr. Woodford notitied the Tresidpnt that he hail seen Minister 
 Morel that morning and had a conversali'>n «iil. \xw in wli'rli li,' had stated to him that 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. // 
 
 demands for separation, until at last on March 26th Secretary Sherman 
 telegraphed to Minister Woodford a long summary of tlic report of tlie 
 Maine, in tiie last sentences of which he distinctly stated the position 
 of tlie United States Government as follows: 
 
 "Upon tlie facts as thus disolosfd a grave responsibility 
 appears to rest upon the Spanisli Oov«'rnnu'nt. Tho Maine, on a 
 peaceful «rranrt. and with the knowledge and <-onsent ot that 
 Government, entered the harbor of Habaiia, reljini; upon the 
 security and itrotection ot a frien<ll.v port. Confessedly she still 
 remained, as to vvliat took place on boar<l, under the jurisdiction 
 ot lier own Government; yet the control of the harbor reuiaiiied 
 in the Spanish Government, which, as the sovereign of the place, 
 was bound to rentier 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 Maine, unless some satisfactory agreement is 
 reached within a very few days, which will assure imniediale and lionorable peace in 
 Cuba, the President i[iust at oiice submit the whole question of the relations beuveen ll.e 
 United State-* and Si)ain, including the matter of ihe Mciim. to the decision of t'ongress.' 
 {U. S For. Rel., 1898, p. fiflC.) 
 
 On March 25 Mr. Woodford wrote to Mr. Slierman an account of his interview of 
 March 23il in wliich he repeated the statement which has just been quoted and staled that 
 Minister Gullon had replied that 
 
 •the Spanisli Government had not received the text of the Spanish report upon the ex- 
 plosion of the il<iine. and in the absence "f any statement by myself [Mr. W oodford] as 
 to the character of the American report he coul I not di^cuss tlie matter, but that the 
 Spanish Government would certainly do whatever rii;ht and justice should require when 
 his Government should have full knowledge of all the facts" (U. S. For. llel., iSHS, \k 
 fi'.'S.I 
 
 .\fter referring to other subjects, Mr. Woodford said that he closed the interview 
 •■ by expressing my belief that the present Spanish (iovernment would deal justly and 
 honorably in regard to the destruction of the LT, S. S. MaUic. in the harbor ot Havana, 
 whenever I should be instructed to present that matter for diplomatic action, but that 
 now, beyond and above the destruction of the Maine, and even beyond and above all 
 questions of the destruction of American property interests in Cuba, the great and con- 
 trolling questiiuis of humanity and civilization reipiire that permanent and immediate 
 peace be -stablished and enforced in the Island of (_'nba. . 
 
 •■ Minister Gullon replied to me, through Minister Moret as interpreter, that ^pain 
 might be relied upon to do what is right and just and honorable in the matter ot the 
 Maine" (U. S. For. Rel., 1898. pp. BD9-700.) 
 
 At a subsequent point in the letter. Mr. Woodford said: 
 
 "The Spanish Minister was very earnest in his desire that the report of the tn^'es''- 
 I'atin^v commission on tlie subject of "the .l/'<;»f should not be sent to Congress, but should 
 be heTd as a subject of diiil-imatic adjustment between the two Governments.^ He assiii-ed 
 me that Spain would do in this matter whatever should be just and right.' (I . S. 1-or. 
 Rel.. 1898, p 701.1 
 
 On March 2.I. Mr Woodford sent the President a long telegram, the first sentence of 
 
 which was as foUows ; 
 
 -Omoial interview this afternoon (Friday) with Minister of Foreign AITairs. He 
 assures me positively that Spain will do all the highest honor and justice reciuire in the 
 matter of the Maine." (U. S. For. Rel., 1898, p 703.) 
 
 * That part of Secretary Sherman's telegram relating to Spain's responsibility is: 
 
 ■■In conclusion, Court finds 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 caused 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 practiciilly accepted these demands and 
 tlie United States was infornu'd through the proper diplomatic channels 
 that tiie nia'tcr would be adjusted in some way ]ion(*rable and favorahle 
 to both nations, and that Spain would arbitrate the matter.* 
 
 Mean wji lie correspondence took place between Senor Polo de Ber- 
 nabe, the Spanish Ministerat Wasliington, and Mr. Day, enclosing copies 
 of reports both of the Spanisii Investigating Committee and the United 
 States Xaval Hoard of IiKpiiry.f Matters were still in this position 
 wli.'n, on April 11th, President .^[cKinley transmitted his message to 
 Congress in regard to the condition of affairs in Cuba, in which he re- 
 ferred to the Maitie in the language which has already been quoted at 
 some leiigih, pages 20 et fpr/.. aiile, as well as to the propositions which 
 had been 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 
 
 lion the ex|irc9sion8 of sympathy by the Oovernment of the Queen Regent with ihe 
 fnilec] Stiites in the loss of its ship and saihirs. This fact can only increase its regret tliat 
 the circuinslances uf the case, as disclosi-d by the report of the board i>f inquiry, are such as 
 to require of the Spanish Government such action as is due where the sovereign rij^hts of 
 one friendly nation have been assailed wilhin the jurisdiction of another. The President 
 rioes not permit him^^elf lo doubt that the sense of justice of the Spanish nation will dictate 
 a course of action 8U<;<rested by the friendly relations of the two Governments. You will 
 communicate the contents of this instruction to the Minister of Slate and sfive him para- 
 phrase if desired " (U. S. For. Rel.. 1898, pp. 1041, 1042). 
 
 * (Jn March 28th Minister Woodford, at an interview with the Spanish Minister of 
 Foreign Affairs, communicated Secretary Sherman's views to him leavin^j a statement 
 couched in exactly the same words as coniained in Ihe dispatch, and on March 28th so 
 inrormed Ihe Secretary of State (U. .S. For. IJel.. 1898, pp. 1 040-1 04 4). On March 29th 
 he addressed a letter to the President in which he stated that he had reaii Ihe nummary 
 just referred to and left an official note j^ivinjf such summary with the Minister of Forei);n 
 Aflfiiirs. and that on the following day he had had an interview with President Sagasta 
 and Senor Moret and Senor Gullun, and that after stating the position of this Government 
 he had awited President Sagasta's reply who had 
 
 " mentioned the loss of the .ifaiiit. and expressed his appreciation of the manner in which 
 you [the President] had presented the subject to t'ongress, and addeil that he believed 
 yoiu' method of dealing; with this question would enable the two Governments lo examine 
 anil adjust the matter in some way honorable and fair to both nations " (!'. S. For Rel.. 
 1898, p. 719). 
 
 Another account of this interview, in which the same is repeated, was transmitted 
 by Mr. \Vo,>dford to Mr. Day (U. S. For. Ucl.. 1898. p. 72S). 
 
 Meanwhile, on March 28lh. President McKinley transmitted to Conirresi Ihe official 
 report of the Maine Board of Inquiry. He closed his message by referrini; to Ihe fact 
 that he had communicated the contents uf the report and the views of this GovernincDt in 
 regard thereto to the Queen Regent. 
 
 On April 1st Mr. Woodford wrote to the President stating thai the propusitinns 
 made by the Spanish (iovernmcnl in regard to alTairs in Cuba went as far as Ihey could 
 pii^silily gii, but he said they had already yielded one or two points, incluiling one as 
 follows: 
 
 '■ First, they are willing to arbitrate the Mninr matter. Some days ago they talked 
 tight if we should even suggest that thev were responsible for the loss of the .l/<iiii< ' iL'. 
 S. For. Rel., 1898, p. 728). 
 
 \V. S. For Rel.. 1S9S. pp 104.'. f/wy. 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINE CASES. t9 
 
 of things in Cuba tliat Wiis intolerable and such that the Spanish Gov- 
 ernment " cannot assnre safety and security to a vessel of the American 
 navy in the harbor of Havana on an errand of peace, ami riglitfully 
 tliore."* The message was referred to tiie Committee on Foreign Rela- 
 tions of tlie United States Senate, which had already other nnitters 
 relating to tlu> explosion of the Maine befoi'e it, in regard tn whicii it liad 
 taken considerable testimony. In fact, tbe Senate tlirough this com- 
 mittee, conducted an independent investigation into the causes of the 
 destruction of the Maine, a,nd tbe resolutions which were reported by it 
 on Ajn-il 13th and subsequently adopted lui April '^Othf were not based 
 exclusively on the report of the Naval Court as transmitted by the 
 President, bnt also upon conij)etent testimony taken by the committee, 
 and its findings]; are entitled to the greatest weight and consideratiou. 
 
 The report of the Committee was })ublished, printed and widely dis- 
 tributed, ami 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 iiress, both American and 
 foreign, and was accessible to every person who desired to obtain a copy 
 thereof, and the presumption must be, therefore, that the Spanish Govern- 
 ment was fully aware of the rejiort and everything that was contained 
 therein. All other documents referred to under this point were directly 
 transmitted to the Spanish Gcjvernment or proceeded therefrom. 
 
 On April ■l()l\\ the resolutions I'ecommendcd in the report were adojUed 
 and were transmitted to the Spanish Government, which regarded the 
 passage thereof as an act of hostility, and not only refused to coniiily 
 therewith., but severed diplomatic relations in a manner which .Mr. 
 .McKiidey declared in a message transmitted on Ajtril "^'.3, IS'.is, to Con- 
 gress " accompanies an existing state of war lietween sovereign powers." 
 
 This was immediately followed by the Act of April "^o, 18!i8, deelaring 
 war to have e.xisted against the Kingdom of Spain since April "..'1. 1SH8.§ 
 
 The foregoing recital of lacts contains, as counsel believes, all the 
 published correspondence and public enactments, and of which this 
 Court will take judicial knowledge, relating to the destruction ijf the 
 battleship Maine so far as diplomatic relations between this country anil 
 Spain are concerned prior to the declaration of war. It shows that at 
 
 * V. S. For. Rel., 1898, p. 758. 
 
 f These resolutions appear in full on p. 29. unit, of tliis brief. 
 
 \ " It is the opinion of your coraraittee, having considered the testimony svibmiUed 
 to the board ol inquiry, in connection with further testimony taken by the committee, and 
 with tlie relevant ancl established facts presented by the events of the last three years, 
 that the destruction of the Maine was compassed either by tlie official act of the 
 Spanish authorities or was made possible by a negligence on their part so willing and gross 
 as to be equivalent in culpability to positive criminal action" (Sen. Rep. No. 885, s.'ith 
 Congress, 2d Session, p. v.). 
 
 § HO U. S. Stat, at L., p. :!6, and see act quoted in full p. 30, ax/c, of this brief. 
 
80 BEFORE THE SPANISH TREATY CLAIMS COMSttSSION. 
 
 the commeiicenient of the war the Government of the United States 
 hiul formally, both by executive and legishitive action, declared that 
 Siiiiiii had not "assured safety to a vessel of the Ameriean Navy in the 
 harbor of Ifavana while on a mission of peace and lij^htfully there;" 
 that tiie destrnclion of the vessel was •'compassed eitiier by the offi- 
 cial act of the Spanish authorities or was made possible by negli- 
 gence on their Jiart so willing and gross as to be equivalent in 
 culpaliility to positive criminal action," and that tlirough the 
 regulai' diplomatic channels of the Department of State and our 
 Minister to Spain the United States had formally expressed to the 
 Sjianish (Jovernnient a demand, couched in regular diplomatic Inn- 
 guagf. that such pro[ier reparation should be made as vas due from one 
 civilized nation to auollicr under the circumstances. The claimants 
 therefore contend that at the commencement of war, and at the time of 
 the pca<'e negotiations in Paris, all the formalities necessary to transform 
 any al)stract right u liicli thiy might have iiad to request the Goveniineiit 
 of tlu^ United States to obtain indemnity for them from the Spanish (iov- 
 ernment had been transfoi'med by executive and legislative action into a 
 recognition of tiieir claims and a iorniiii dcinaiid upon Spain to make 
 adequate re])aration tiierefor. 
 
 From April vMst until duly iiOlli. 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 furtiier correspond- 
 ence in regard to these claims and the status was exactly the same on 
 July :iOth as it was on April -^'Oth, 1S!)8. 
 
 When Spain, thoroughly realizing the hopelessness of the contest, 
 requested a cessation of hostilities, and instituted negotiations of peace, 
 the Dnc d'Almodovar del Rio, on bihalf of the Queen Regent, and 
 through the French Ambassador, made the first advances in July, 
 1S!I8, Mr. Day responded on July ;SOth. 1S98. in a letter setting 
 forth tlie terms upon which the President of the United States was 
 willing to make peace with Spain, and in which, without making 
 s[)ecitic reference to the claim of any citizen or of any classes of 
 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 Rico 
 and other territory.* The expression used was broad enough to cover 
 every claim which tiie United States might have put forward at that time 
 against the Ooverument of S])ain, and if Secretary Day had appended to 
 
 • " Tlie I'residenl.desiruus ot I'xiiiljiliiijj .signal f;i-nerositv, will not now put fortti any 
 (Irniand fur peciiniary inili-mnitj'. Ncvertlieli'^-s, lie canndt bo insensible to llie lo»si-a ami 
 expenses of the United Slates incident to the war, or to the claims iif our ciliiens for 
 injuries to tlieir persons ami properly during llie lat« insurrection in Cuba. He must 
 tlierefure rei)iiire the cession to tlie I'nili-d Slates, and the evacuation by Spain of the 
 islands of 1'orui tlio and other islands now under the soverciijnty of Spain in the West 
 Inilies, and also the cession of nil island in the Ladronus t« be selected by the I'nited 
 Slates" (i;. S. For. Kel., 1898, 821). 
 
AKGl-MKNT OF <HAS. H. ISUTI.EU IN MAINE CASES. 81 
 
 the letter -.i schetlule of the elaims which he intended to cover by liisgeneral 
 expression, it wonld not only liave been eminently proper for him to have 
 included the claims of the petitioners arising from the destruction of 
 the M(fine therein, but it would liave been eminently improper for him 
 to have excluded them therefrom; there is nothing whatever in the 
 lauoua-e used which justilies the statement ni:.de 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 tiie Maine. 
 
 Nothing further appears to have been said about the Miuiu: or any 
 other clainrs until after the peace protocol had l)een 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 .^th, 1898, at a meeting of the Commissioners, the 
 articles of the treaty from I. to VIII. were read and agreed upon, suliject 
 
 * M. Rios, on November 22d, addressed a letter to Mr. Day, who was then President 
 of the American Commission, in which he said: 
 
 '■ The Secretary of State having stated in his note of .U.ly 30tli la»t, that tlu- cess.on 
 bv Spain of the Island of Porto Rico and the other islands now un<ler Spanish sov.r- 
 eignty in the West Indies, as well as one of the Ladrones, was to be as compensation for 
 the losses and expenses of the United Stales during the war, and of the damages suffered 
 by their citi/.ens during the last insurrection in Cuba, what claims does the proposition 
 refer to as requiring that tliere shall be inserted in the treaty a provision for the mutual 
 relinquishment of all claims, individual and national, that have arisen from the beginning 
 of the last insurrection in Cuba to the conclusion of the treaty of peace V (Message of 
 President transmitting treaty of peace to Senate, Sen. Doc, .55th Cong., 3 Sess., No. 6L. 
 Part 1, January 4, 1899, p. 217). 
 
 On the following day Mr. Day replied, and 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 Snth of July l-.st. that the cession of • Porto Rico and other islands 
 now under the sovereignty of Spain in the West Indies, and also the cession of an ,s a«d 
 in the Ladrones, to be selected by the United States' was required on grounds,, 
 indemnity and that, 'on similar grounds the United States is entitled to occupy and wdl 
 hold the'city bay. and harbor of Manila, pending the conclusion of a treaty of peico 
 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 ,n 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 ind.. 
 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 an,i 
 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 mpra, 219.) 
 
82 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 to modifications as to form, upon wliicli the Secretaries were to agree.* 
 The then laiij;iiage of tiiis arlinle was jiracticdlh' 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 Uiiitod States of the article as it now is included in the 
 treaty was not included in tlie first draft. On December tjtii. as appears 
 by protocol No. "iO of the Peace Commissioners, articles were presented 
 by the American and Spanish Commissions each to tlie 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 supcr.sede the article 
 already adopted, l)y which l)oth Governments had mutually reliiniuished 
 all claims against the other. 
 
 The article which the Spanish Commissioners wished to have inserted 
 in the treaty of peace in regard to the Maini- provided for the appoint- 
 ment of an intei-national commission, consisting of seven experts " to be 
 entrusted with investigating the causes of and responsibility for the 
 Maine catastrophe " and which, after prescribing the method ot appoint- 
 ment of the Commissioners and that each Government should pay one- 
 halt of the expenses, pntvided 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 shi|> 
 must go to New York and salute the fiag of the United Stiites."t 
 
 It also appears by protocol No. 20 that this article was rejected by the 
 American Commissioners, who stated tiiat tiiey considered tiie case as 
 closed; but the President of the Si)aiiish Commission stated that he 
 
 • "Tlie rending in Enfjlisli anil .'^|iani;li of tlic articles of Ihe treaty from the first to 
 eiglitli, inclusive, was then proeeeileil with, and they were a|i|irove<l by both t'uinmissions, 
 which de<^lared tlieni to be final save as to mere modifications of furni, u|)r>n which the 
 Secretaries-Cieneral inii^ht, endeavor to agree." (Sen. I)oo. No. ti'i. p. 230.) 
 
 The artirle containing the relinijuishnienl of claims, which was then numbered VI. 
 but afterwards became No. VII. by a re-arrangement of arlicl.-s included in those read, 
 was a« follows : 
 
 " Articlb VI. — The United Stales and Spain, in consideration of (he provisions of this 
 treaty, hereby mutuall}' relincpiish nil claims of indemnity, national and individual, of 
 every kind (incluilingall claims for indemnity for the coat of the war), of either tioverniuent 
 or ui its citizens or subjects, against the oilier Governuienl, that may have arisen since 
 the beginning of the late insurrection in Culm and prior to the ratification uf the present 
 treaty." (Sen. Doc. No. 62, p. 234.) 
 
 t Sen. Doc. 62, p. •.•42. 
 
 {The proposed " Additional Article " then provided that: 
 
 " If, on the contrary, the (^miinissiim shall decide that Spain is not res|H>n9ible. 
 attril)uting the catastrophe to an accident inside the vessel or other fortuitous cause, the 
 Government of the I'nited Slates 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 Sljites, setting forth in the official message the righteous course 
 of the Spanish nation." (Sen. Uoc. No. t')2. 243.) 
 
ARGUMENT OF CHAS. H. BCTLKK IN" MAINE CASES. 83 
 
 was unable to consider it as closed since tlie President of the United 
 States had referred to it in his message to Congress on the previous Mon- 
 day, to which the President of the American Commission replied that 
 they had not received a copy of tlie message and therefore liad not 
 read it. to whicii the President of the Spanish Commission re[)lied that 
 he had in his i)OSsession 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 tlie incident for the day, and other additional articles were then 
 proposed by the Spanish fTOvernment. some of which were rejected 
 and some of which were accepted.* On December sth, the meeting of 
 December Tth having been postponed to that date, tlie protocol of the 
 preceding session was read and a|)proved, and the Spanish Commission- 
 ers then observedf 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 i|uestion being submitted to 
 arbitration. The A'uerican Commissiiniers answered referring to the 
 observations made by them on this subject of tlie last session. J 
 
 * Sen. Doc. No. 62, pp. 243. 244. 
 f Sen. Doc. No. 62, p. 250. 
 
 X To this the Spanish Conmiissioners, who seemed uuable to understand the situation, 
 and under tlie iiiipression that hy constant insisting they might obtain sorae concession, 
 repliec.1 tltat since 
 
 " this new proposal for arbitration was also rejected they would ask the American Com- 
 missioners to be pleased to propose some method of clearing up the matter of the Maine, 
 and the responsibility growing out of it, so that the unjust prejudice against Spain shown 
 in the United States by reason i>f an incomplete investigation might disappear, and the 
 resentment of Spain because the uprightness of her authorities r)r subjects, and the 
 capacity of her administration to guarantee the safety in her ports of vessels of a nation 
 with which she was at peace, had been placed in iloubt, might also be blotted out." 
 
 The American Coujmissioners replied to this ihat they had no method to propose 
 (Sen. Doc. No. 62, p. 251), and this is .all that transpired verbally between the Cornniis 
 sioners upon that day as appears in protocol No. 21, but as an annex to the protocol a 
 memorandum of the Spani.«h Commissioners was submitted in which the Commissioners 
 explained as the reason why they had insisted upon the arbitration the fact that the 
 President had in his message of December 5tli referred to the explosion of the Maine as 
 xttspieious, and the memoramUim 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 sliall never be lawful for 
 those who oppose the investigating of the cause of that horrilile disaster, to impute, 
 ope.ily or covertly, responsibility of any kind therefor to the noble Spanish nation, or its 
 authorities " (Sen. Doc. No. 62, p 260.) 
 
 On the following day after an exchange of courtesies, the treaty was prepared and 
 signed, and Mr. .1. 15. Moore, ,Secretary of the Comrai-ssion, transmitted a reply to the 
 memorandum of the Spanish Cornmissioners just referred to, in which he said : 
 
 " Respecting the observation in ihc inetnoiandum of the S|iani.-h Comunssion upon 
 the last message of the President of the llnited States, wherein he refers to the disaster 
 to the battleship Maine, the American Commissioners feel obliged to decline to enter upon 
 
84 BEFOKK TlIK .SI'ANISH TKEATY CLAIMS COMMISSION. 
 
 MuauwliiU' it :i|i|icar.s thai tlie tivaty hail hfi'ii redrafted liy tlie Sec- 
 retaries, that the article in regard to the reliiKjuislinient of claims had 
 been 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 can be drawn from the corre- 
 spondence between the American and Spanish fJommissioncrs and the 
 protocols of their conversations in regard to tiic Maine disaster is that 
 Spain refjuested 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 t'ault in the absence of such arbitra- 
 tion, the United States Commissioners inserted in the treaty an addi- 
 tional clause to the effect that the United States would itself ndjudicalc, 
 as well as .letflc, the claims of its citizens whicli had lieen relin- 
 quished in order that there might be no ((uestion as to the right of tiie 
 United States to settle with its citizens in such manner as it should see 
 fit, even if it re<|uired 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 jiractice in the history of our country. Mr. Moore 
 undiiubteiUy had in mind tlie 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 distriliution of tlie Alabama 
 award in 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 ISl'.l, Ity 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 
 Sp.iin and the United States, the negotiations were concluded and were 
 merged into the treaty itself, and the claimants contend that the words 
 of the treaty as they stand in Article \'1I. providing for a mutual 
 reliiKpiisliment 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 am- 
 
 any dtBcussion of the game, id obedience to well established precedpots and practice in the 
 history of their country " (Sen. Iloo. Nd. 62, p. 2ii'2). 
 
 • " Article 7. The I'nilcd Slnlfs and .'^piiin niutunlly Il.•liIu|lli^h nil cliiinis fur indem- 
 nity, nutioual and individual, of every kind, of either (tuvernmcnt, or of iUi citizens or 
 subjects, Against tlir other lioveronient, that may have arisen nincc the beginning of the 
 late insurrection in Cuba and jiriur to the exchange of ruliticnliuns of the present treaty, 
 including nil claims for indemnity for llie coHof the war. 
 
 " The I'nitvd States will u<ljudieate anil settle the claims of its citizens against Spain 
 relinquished in this article" (Sen. Doc. No. 62, pp. 266, 267). 
 
ARGUMENT OF CHAS. H. BUTLER IN MAIN'E CASES. t-.:> 
 
 biguity it is unnecessary, and therefore not allowalile, to resort to the 
 protocols of tlie Peace Commission or to the corre.>i)ondencc rehitinj^ 
 thereto in order to oljtain any dit!erent construction than tliat whicli 
 appears npun tlie face of tiie article. The elementary rule of law, that 
 ail prior negotiations and correspondence are necessarily merged into the 
 insti'ument itself, is as applicalile to treaties between nations as it is to 
 contracts between individuals, and. therefore, the protocols u})ou wliich 
 tlie Attorney-General spent so much time cannot in any way affect the 
 construction of the clause by which all the claims were relinr|uished 
 against Spain by the United States and assumed by that Government 
 as to its citizens. The complete record from the loth day of February 
 to the 10th day of December, 1S98, has been rehearsed under this point 
 in order that this Court might have before it, in a condensed and con- 
 secutive form, everything whicli related to these claims from the time 
 that they first arose until the time that they were finally extinguished as 
 against Spain and assumed by the United States. 
 
 It is not proper, however, to close this point without referring to the 
 argument of the coun.sel closing the case for the Government on the oral 
 argument, especially in regard to his proposition that the protocols of 
 December .Tth — December lOtli of the Peace Commission in Paris are to be 
 construed practically into a solemn contract between the United States 
 and Spain, that from that time the incident should be closed not only as 
 against the Sjianish Government but also between the United Statts and 
 its own citizens in regard to the adjudication of these claims.* 
 
 His earnest afijieal to this Court not to further wound the sensibilities 
 of a friendly nation and not to disgrace a once powerful but now un- 
 fortunate nati<in. might indeed have been effective Ijefore an international 
 tribunal had he been representing the Spanish tfovernment and the 
 United States was presenting these claims; imismnch as his argument 
 was to the effect that the absolute rights of American citizens under a 
 treaty made on their behalf by their own Government should be sub- 
 ordimited to the '•sensibilities" of a foreign power, counsel does not 
 consider that it requires any refutation beyond its mere statement. 
 
 If the treaty of ISltS is to be construed in connection with correspond- 
 ence and protocols, this Court must presume that the American Com- 
 missioners were regarding not the ''sensibilities" of tlie Spanish 
 Government on points of honor, but the actual vested rights and proji- 
 eity of American citizens. On the present occasion no interests of Spain 
 are at stake and therefore the presumptions need not be construed as 
 against a victoiious power insisting upon terms in a treaty of peace, but 
 in favor of those citizens who were not present and whose Government 
 
 * The word " protocol " as used in treaty negotiations does not mean agreement, as 
 it sometimes does when the foreign offices of different governments finally dispose of a 
 diplomatic mattei', but simply minutes of a meeting. For this sense, see U. S. For. Rel., 
 1S7I. under Great Britain, and proceedings of Commissioners negotiating the Treaty of 
 Washington of 1871, 
 
86 BEFORK THE SPANISH TKEATY CLAIMS COMMISSION. 
 
 Siifrificcd their claims for its own purposes witli full knowledge, as was 
 expressed hv Secretary Day, that they would l("ik to their Government 
 for theadjudicatiou and payment of the elaims which were thus saerifx'ed 
 for the sake of peace and in order that no further punishment need to 
 he meted out to the n itioii which had caused these great injuries to 
 American citizens and against whom the claims not only existed but 
 iiad actually been presented by this Government. 
 
 TTVENTIETH. This is a domestic tribunal. 
 Spain is not betore the Court, and in con- 
 sidering- Article VII. only the rights of Amer- 
 ican citizens can be considered. 
 
 The closing of the argument of llic Guvernmeut coutaius a plea for 
 Spain and an effort is made to induce this Court to consider itself under 
 some obligation to the Spanish (iovcriiment not to adjudicate the Maine 
 claims bv reason of an im|)lied promise made by the American Commission- 
 ers to theetTect that the incident wasclosedand would never be reopened. 
 
 Ill 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 tipiui 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 thoujjh Spain had 
 some interest in the amount involved which is to be paid to American 
 citizens. They luive 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 sum. Spain sliould jiay all of such 
 excess and that they were bound on behalf of Spain to keep the amount 
 below the specified figure. 
 
 Hiid Spain remained liable in whole or in part it might be proix-r at 
 the iircseiit time for that (Jovernment to be represented before this Com- 
 mission and to protest against the allowance of claims which had been 
 excluded from the relinquishment or the a.ssumptiou clause. No such 
 condition exists, however, and it is absolutely immaterial to Spain 
 whether the United States, in adjudicating and settling these claims, 
 shall lie obliged to pay five million d.dlars or fifty million dollars. Spain 
 has bei i> forever released and the United States alone has undertaken to 
 ailjudicate and settle the claims. Citizens of the United States are the 
 o'lly 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 
 
AftGUMENT OF CHAS. H. BUTLER IN MAINE CASES. St 
 
 the United States, and under these circumstances it must be construed 
 liberally for the claimants and strictly against the United States. 
 
 If the argument of the counsel for the Government is correct and 
 Spain has 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 tJie Govern- 
 ment has finally paid upon the judgments of this Court, and demand 
 the difference between that total and the minimum to wliicli the 
 Attorney-General hopes to reduce these auard.s on tlie ground of false 
 representations, and that it parted with Porto liico and its other posses- 
 sions, supposing that anywhere from 1111,000, OUO to §00,000,000 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 nuiking tiiem.* 
 The Ignited States needed these claims in ordei- to make peace. It took 
 them by the right of eminent domain, confisca'ed them and not only 
 rendered them valueless as against Spain, hut took it forever out of the 
 power nl the United States to present them against Spain at any future 
 time, and therefore in tiie construction of this clause every presumption 
 must be taken against the United States and in favor of every person 
 who had a claim or an abstract right of any kind to demand indemnity 
 for any loss which he had sustained. 
 
 Ao'aiu, if the argument of the Government's counsel is correct, the 
 Commissioners at Paris 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 be admitted that the recpiests of the Spanish (io\ernnient to 
 arbitrate the matter had notiiing 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 Decemljer 5th, 
 1898, 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 (dnirged with inability to pro- 
 tect a foreign warship, that was the sole ground of the request on 
 both occa-ions uj^on 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 conline their arguments to the 
 
 * The cases citod under the Thirteenth Piiint, page 44, ante, of this brief as to strict 
 construction of tariff laws against the United Stales are also applicable to this point. 
 
88 BEFORE THE SPANISH TREATY CLAIMS COlIMISSIOK. 
 
 finaniinl rl.mentsof the question; if their contention is sustained it will 
 iniiclieally bf an atljudication l)y this Court that if on any occasion hen- 
 after llie President of the United States or any other person liigh in 
 authority shall declare that llie destruction of the Mtiiiie was due to 
 Sp;inisli wronjitloino; or Spanish negligence, there will have lieen a lireaeli 
 of the treaty, for wliieli 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 w^hose 
 claims have been relinquished as thoug-h the 
 indemnity had been paid in cash. 
 
 Counsel for the Government intimated in their argument that these 
 claims had never been hoard of until after the treaty had been made 
 and ratified and this Court iiad been creal.-d. In this they are mistaken. 
 As early as February 28, 1898, counsel for the chiimants, when there 
 was no thought wliatever of representing them before this Coniniission, 
 stated in tlie public press that the I'nitcd States had a right to demand 
 indemnity for all those who liad sustained loss by the explosion of the 
 Maine* Be tliat as it may, liowever, tlie United States, as appears by 
 the letter of Secretary Day, which has alieady been quoted from at 
 Icngtlit. and tlie protocols of the Peace Commission, demanded and re- 
 ceived the Ishiiid of Porto Ifico, 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 during the period specified in the Treaty of Peace. Leaving 
 the Philippine archipelago entirely out of the ((ueslion, the United 
 States to-day owns and exercises sovereignty over a large extent of most 
 valuable territory, which it acfpiired to some extent by the conGscation 
 and surrender of the claims of its citizens against Spain, and it does not 
 lie in the mouth of the counsel representing the (Jovernment to now 
 deny the eiistence of the claims which were used in part jiayment for 
 this properly. 
 
 The value of the properly has 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 Jf. r. World hr Febraary S8. 1898. 
 
 t See extracts from letter of Secretary Day to Duke d'Alniodovar del Rio, of July 80, 
 1 SfS, referred to on page 7S, anit, of this brief. 
 
ARGUMENT OF CHAS. H. BUTLEK IN MAINE CASES. 80 
 
 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 by 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 f.5,000,000 were assumed and 
 j)aid, 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 recog'nized 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 Aloore'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, ia the course of his argument, said (p. 32): " I presume the prece- 
 dents referred to are the numerous treaties in 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. M.\UKy : The diflference between this and other cases is that we agreed to pay a 
 certain amount — thei'e 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 UEFORE THE SPANISH TREATT CLAIMS COJIMISSIOK. 
 
 under similar circumstances. Wrongful governmental acts and negli- 
 gence to prevent mob violence iiave 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 lias 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 administei'ed 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 
 ]aw;t because the cession of Porto Rico was demanded as indemnity for 
 injuries of our citizens to i)erson and property:| and 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.§ 
 
 One specilic 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- 
 gijiius, who were shot in Cuba in 187;!, were settled by the payment of 
 a lump sum of 180,000 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 (tovernment 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. 
 
 \ Sec casi'8 cilcil under Fifth Point, pp. 21, 22, antf. 
 
 i See Secretary Day's letter of July 30, 1898, cited on p. 80, ante. 
 
 § See Senate Report and claims of this nature referred to therein, cited on pp. 27, 28, 
 anU. 
 
 I Protocol or Agreement of February 27, 1875, U. S. For. Rcl., 1875, under Spain ; 
 «ce sub-bead Firyiniut. 
 
ARGUMENT OF CHAS. H. BUTLER IN MAINK 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 eipiitable. and if the 
 Court will examine the sixty petitions and upwards tiled by the firm of 
 the counsel for these claimants it will find that the same basis of distribu- 
 tion which was adoj>ted by President Grant has been adopted as tiie basis 
 of the demands in these cases.* 
 
 TWENTY-THIRD.— The Statute of March 30, 
 1898, is not a bar to the petitioners' claims; 
 furthermore, payments thereunder cannot be 
 set up on a motion to dismiss for 'want of juris- 
 diction or by demurrer. 
 
 Tlie act of March oO, 1808, was not for indemnity for death or in- 
 jury. It was to reimburse for articles lost. 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 tliat 
 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, 181)8. 
 
 During the rcconccntrado 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 deciJe 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 dece.ised 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. 
 
 (5) 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 Virginbis fund, Feby. 14, 1887, 
 
93 BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 the crew of the General A rnh<fr(iiig, but that did not interfere witli pressing 
 daims of the same persons against Portugal for the damages caused liy 
 its violations of neutrality in the Harbor of Fayal. Tiic 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 jjlead this statute and payments 
 under it, if 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 oblig-ation 
 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 
 ao-ainst the Si)anish Government and the assumption thereof by the 
 United States under the treaty of 18!i8. 
 
 Doubtless the United States had the constitutional right to relieve 
 Spain from all obligation for the wrongs cominitted by that country upon 
 American citizens, arising from the abhorrent condition of the island of 
 Cuba, and culminating in the destruction of the Maitie 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- 
 vided that Spain should remain liable for all claims owing by tiiat 
 Government to citizens of the United States, and provided for a regular 
 intoruMtional tribunal to adjudicate such claims, every suitor before this 
 Court would have been represented before such tribunal by the Govern- 
 ment of the United States, which would have used its tremendnis 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 awaril 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 tile payment thereof, the claimants now find that they have not only 
 lost the weight and influence of their own Government iu urging these 
 claims 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. P3 
 
 an nrray of able counsel especiall)- 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, Init also upon the Attorney-General, for the posi- 
 tion taken by him on behalf of the Executive Department of this Govern- 
 ment. Ilis arguments and briefs will undoubtedly someday 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 pay the damages sustained 
 by our citizens than when the United States is obliged to pay them by 
 virtue of an assumption similar to that of the treaty of is'.i.S. 
 
 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 suiferers 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 ol)tained 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 lauds 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. 
 
nt BEFORE THE SPANISH TREATY CLAIMS COMMISSION. 
 
 TWENTY-FIFTH.The demurrers should 
 be overruled and the claimants awarded the 
 amount of their damag'es, as alleg'ed in the 
 petitions. 
 
 I'.l'TLER & IIARWOOD, 
 
 A lliirncyx for Claimants. 
 
 13') Broadway, 
 
 New York City. 
 Charles Henry Butler, 
 
 Of CounseJ. 
 
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