Boutwell has already recognized this principle in several instances, when he has referred to the Department of State for the elucidation of doubtful points, and I take pleasure in testifying that the Department has never sought to avoid the responsibility of expressing its opinion with regard to true meaning of certain of the terms of the convention of January 15, 1880. This general rule being established, it remains for us to examine the special case submitted to our consideration. Article II of the convention of January 15 was drawn up with particular care, and it seems strange that there should be any difference of opinion as to the meaning of its provisions. Since claims arising from damage caused by acts of war are not governed by precise laws their settlement varies according to countries and circumstances; it is, however, in all cases, subjected to such conditions as it pleases the Governments concerned to establish. Now, during the negotiation of the convention of 1880, it was well understood that neither of the contracting parties would consent to any revision of decisions pronounced within its territory by competent authorities in any form whatever. In order to meet such a case, Article II formally and explicitly provides that the Commission shall not decide any claim that either Government has already caused to be settled, either diplomatically, judicially, or otherwise, by competent authorities. According to our view, the case of the Magdalena has been judicially settled, since it has been passed upon by two bodies invested with judicial powers. I am aware that different doctrines have been laid down with regard to the weight to be attached to the decision of prize courts; it does not seem to me, however, that this is a proper time for the discussion of those doctrines, for even admitting for the moment that the case of the Magdalena is not to be considered as having been judicially decided, it cannot be denied that it comes under the head of those which have been otherwise decided by competent authorities. I have every reason to believe, judging from the conversation which I had the honor to have with you yesterday, that you will share this view, and I therefore beg you to instruct your agent to withdraw this case, as one of which the commission is not competent to take coguizance. A speedy decision in this matter is highly important for the avoidance of a serious conflict, which might arise if this Commission, having a case brought before it in which it has no jurisdiction, should consider itself thereby authorized to decide such case. Be pleased to accept, Mr. Secretary of State, the assurances of my very high consideration. Hon. JAMES G. BLAINE, Secretary of State of the United States. MAX. OUTREY. No. 6. Mr. Blaine to Mr. Outrey. DEPARTMENT OF STATE, Washington, December 17, 1881. SIR: Referring to your note of the 18th ultimo in relation to the case of Isaac Taylor, a citizen of the United States, which was presented to the American and French Claims Commission in February last, and to the several conversations which we have had upon the subject, I have the honor to state that after such consideration as I have been able to give to the question, I have reached the conclusion that that claim, because of the antecedent proceedings by the competent authorities of France of which it has been the subject, is not properly within the cog. nizance of the Mixed Commission established under the provisions of the convention of the 15th of January, 1880, between the two Republics. In accordance, therefore, with this determination the agent and counsel on the part of the United States will be instructed to withdraw the claim of Mr. Isaac Taylor from the further consideration of the Commission. In taking this view of the question involved in the claim referred to, I am influenced in no small measure by the earnest desire felt by this Government to give full effect to the spirit no less than to the letter of the second article of the convention, and by thus withholding from the cognizance of that international tribunal any claim which may have already been made the subject of inquiry and determination by the competent authorities of France, avoid any occasion for making the competency of such proceedings the subject of question or review. That the French Government, animated by a like disposition, will pursue a similar course with regard to any claims presented for the consideration of the Commission on behalf of citizens of France against the United States which shall be found to have already been inquired into and decided either diplomatically, judicially or otherwise by the competent authorities of of the United States, I do not allow myself to doubt. I have also to request that you will convey to your Government the distinct understanding of that of the United States, that in regard to the merits of Mr. Taylor's claim and also with respect to any other remedy that he may deem open to him, the present measure of withdrawing the claim from the consideration of the Mixed Commission is not to be taken as any expression of opinion against the justice of the claim, nor to be hereafter urged in bar of any other remedy he may seek to avail himself of, nor in any manner to prejudice his rights in relation to the claim in question. I avail myself of this occasion to renew to you, sir, the assurances of my highest consideration. Mr. MAXIME OUTREY, &c. No. 7. JAMES G. BLAINE. Mr. Outrey to Mr. Frelinghuysen. LEGATION OF FRANCE IN THE UNITED STATES, Washington, December 21, 1881. Mr. SECRETARY OF STATE: In reply to certain observations which were addressed to him by me on the 18th ultimo, relative to a claim which Mr. Isaac Taylor desired to lay before the French and American Commission, your predecessor did me the honor to write me, on the 17th instant, that after a careful examination of the question, he had reached the conclusion that the spirit and letter of Article II of the convention of January 15, 1880, did not allow the admission of the competence of the said Commission in that matter. He consequently informed me that instructions had been sent to the agent and counsel of the United States to withdraw the claim of Isaac Taylor. That decision was, nevertheless, adopted under certain conditions. Mr. Blaine wished to have it distinctly understood between the two Governments that the measure which he had taken did not imply the expression of any opinion with regard to the justice or the merits of the claim itself; that it could not be made the ground of any legal objection in case the claimants should have recourse to other means of action, and finally that it could in no wise prejudice any rights that they might consider themselves to have. After having referred the matter to Paris, I am happy to be able to inform you that my Government gives its adhesion to these conditions, that is to say, that it admits that the fact of the withdrawal of the claim of Isaac Taylor in no wise prejudices the substance of that claim, • whose validity, whatever that may be, remains precisely what it was before this incident occurred. I need not add that, on our part, we shall strictly observe the case arising, the legal interpretation given, by mutual consent, to Article II of the convention of January 15, 1880. Be pleased to accept, Mr. Secretary of State, the assurances of my very high consideration. Hon. FREDERICK T. FRELINGHUYSEN, Secretary of the United States. MAX. OUTREY. No. 8. Mr. Frelinghuysen to Mr. Outrey. DEPARTMENT OF STATE, SIR: I have the honor to acknowledge the receipt of your note of the 21st ultimo, communicating with respect to the effect of the withdrawal of the claim of Mr. Isaac Taylor from the consideration of the French and American Claims Commission. Accept, &c., FRED'K T. FRELINGHUYSEN. Mr. MAXIME OUTREY, &c. No. 9. Mr. Frelinghuysen to Mr. Outrey. DEPARTMENT OF STATE, Washington, February 7, 1882. SIR Referring to your note of the 21st of December last, in which you were so good as to say that the Government of the French Republic would, on its side, observe the legal interpretation given by common. accord to Article II of the convention of the 15th of January, 1880, I have now the honor to inclose a list of cases which are reported to me by the assistant counsel of the United States, as coming within the rule adopted by common consent, and I beg to ask that instructions may be given to the agent for France to have these cases dismissed in whole or in part according to the statements in the accompanying list. It is understood, of course, that further and other motions for dismissal may be made on either side hereafter, as the pleadings or proof may disclose that claims come within the operation of Article II, as mutually construed. Accept, sir, &c., Mr. MAXIME OUTREY, &c. FRED'K T. FRELINGHUYSEN. No. 10. [Translation.] Mr. Outrey to Mr. Frelinghuysen. LEGATION OF FRANCE IN THE UNITED STATES, Mr. SECRETARY OF STATE: I have received the letter which you did me the honor to address to me under date of the 17th instant, requesting the withdrawal of a certain number of claims against the United States Government, which are now on the docket of the French and American Commission. That letter was accompanied by a list presented on the 25th of January by the assistant counsel of the American Government, showing the cases which, as is stated, that Commission, according to Article II of the convention of January 15, 1880, is not competent to examine. I have transmitted these documents to the agent of the French Government, who has special charge of the presentation of the claims of our citizens, requesting him to come to an understanding with Mr. Boutwell or his assistant for the elucidation of the facts, and I do not for an instant doubt that he will speedily withdraw such as have already been settled. The understanding which was reached in December last between the Government of the United States and that of France in regard to the precise meaning of the stipulations of Article II of the convention leaves no room for the supposition that there can be any difference of opinion between the agents of the two countries as to the principles whereby they are to be guided. It will, I think, be sufficient for them to communicate to each other the documents on which their responsibility is to rest. If, however, any disagreement shall arise, it will be the duty of Mr. Grimaud de Caux to inform the legation of the reasons thereof, and I shall not fail in that case to confer with the Department of State. Be pleased to accept, Mr. Secretary of State, the assurances of my very high consideration. No. 11. MAX. OUTREY. Mr. Frelinghuysen to Mr. Outrey. DEPARTMENT OF STATE, SIR Referring to our recent correspondence in reference to the dismissal of such of the claims now pending before the French and American Claims Commission as may be found from time to time to home within the operation of Article II of the convention of January 15, 1880, as mutually construed, I now have the honor to request that appropriate action may be taken by your legation in reference to the cases of Jules Perrodin, No. 90, and of G. A. Le More, No. 211, which are referred to in the accompanying papers. Accept, &c., Mr. MAXIME OUTREY, &c. FRED'K T. FRELINGHUYSEN. No. 12. [Translation.] Mr. Outrey to Mr. Frelinghuysen. LEGATION OF FRANCE IN THE UNITED STATES, Mr. SECRETARY OF STATE: I have received the letter which you did me the honor to address to me on the 18th of this month, wherewith you transmitted to me various documents relative to the claims of which Messrs. Boutwell and John Davis ask the withdrawal as coming within the scope of the second article of the convention of 15th January, 1880. As I had already previously done with regard to the list which you sent me on the 7th of this month, I now send these documents to Mr. Grimaud de Caux, charging him to come to an understanding with the agent of the Government of the United States before the Commission. Permit me to embrace this fresh occasion to call your attention to the erroneous impression which seems to exist in the mind of Mr. Bout. well concerning the part to be taken by the Department of State and the legation of France in the application of the second article in question. According to the principles established by common consent, as is witnessed by the notes exchanged on the 18th of November and the 17th and 21st of December, 1881, the interpretation of the clauses of the treaty belong to the two contracting Governments and not in any way to the Commission, from which it follows that in case of disagreement between the respective agents before the Commission, the question should be laid before the two Governments, but this arrangement cannot have the effect of discharging the agents from the obligation of giv ing joint consideration to the difficulties which may arise. It is, therefore, only in the event of its being impossible for them to reach an agreement that they should make reference to us, and then it is indispensable that they should lay before us the objections raised on either hand. Now, I see nothing in the letters of Mr. Boutwell or in the papers therewith which can enlighten us as to the causes of disagreement. I am convinced, Mr. Secretary of State, that after having examined the question you will recognize that any other manner of proceeding can only lead to delays and perhaps regrettable confusion. I should, therefore, be very glad should you deem it opportune to instruct the agent of the Government of the United States to be pleased hereafter to address himself first to the agent of the Government of France, as the latter has himself done to Mr. Boutwell in the case of Isaac Taylor. Be pleased to accept, Mr. Secretary of State, the assurances of my very high consideration. MAX. OUTREY. Hon. FREDERICK T. FRELINGHUYSEN. |