"First. That I am instructed to repeat to the American Government the prompt disavowal made by His Majesty (and recited in Mr. Erskine's note of April 17, 1809, to Mr. Smith) on being apprised 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 command immediately ensued, as a mark of His Majesty's disapprobation. "Secondly. That I am authorized to offer, in addition to that disavowal on the part of His Royal Highness, the immediate restoration, as far as circumstances will admit, of the men who, in consequence of Admiral Berkeley's orders, were forcibly taken out of the Chesapeake to the vessel from which they were taken; or, if that ship should be no longer in commission, to such sea-port of the United States as the American Government may name for the purpose. "Thirdly. That I am also authorized to offer to the American Government a suitable pecuniary provision for the sufferers in consequence of the attack upon the Chesapeake, including the families of those seamen who unfortunately fell in the action, and the wounded survivors. "These honorable propositions, I can assure you, sir, are made with the sincere desire that they may prove satisfactory to the Government of the United States, and I trust they will meet with that amicable reception which their conciliatory nature entitles them to. I need scarcely add how cordially I join with you in the wish that they might prove introductory to a removal of all the differences depending between our two countries." Mr. Foster, British minister at Washington, to Mr. Monroe, Sec. of State, Nov. 1, 1811. 3 Am. St. Pap. (For. Rel.), 499. "I have had the honor to receive your letter of the 1st November, and to lay it before the President. "It is much to be regretted that the reparation due for such an ag gression as that committed on the United States frigate, the Chesapeake, should have been so long delayed; nor could the translation of the of fending officer from one command to another be regarded as constituting a part of a reparation otherwise satisfactory. Considering, however, the existing circumstances of the case, and the early and amicable at tention paid to it by His Royal Highness the Prince Regent, the President accedes to the proposition contained in your letter, and, in so doing, your Government will, I am persuaded, see a proof of the conciliatory disposition by which the President has been actuated. "The officer commanding the Chesapeake, now lying in the harbor of Boston, will be instructed to receive the men who are to be restored to that ship." Mr. Monroe, Sec. of State, to Mr. Foster, Nov. 12, 1811. 3 Am. St. Pap. (For. (4) CASE OF THE DARTMOOR PRISONERS. § 315c. On April 6, 1815, after the proclamation of the peace of Ghent, certaiu prisoners of war, citizens of the United States, who were confined in Dartmoor prison, becoming restless at what they may have regarded as a detention when entitled to be discharged, showed what the captain of the guard considered symptoms of insubordination. They were unarmed and defenseless, but he called out a squad of soldiers, and, after some altercation, as to the extent of which the evidence subsequently taken differed, ordered, or at least sanctioned, firing by the soldiers on the prisoners. The consequence was that seven of the prisoners were killed and sixty wounded. The British Government did not bring the offenders to trial, but expressed "distress" at the conduct of its troops, communicating, at the same time, in a letter by the British chargé d'affaires to the Secretary of State, the fact that the Prince Regent had visited the offenders with the information of his "disapprobation," making at the same time an offer of " compensation to the widows and families of the sufferers." This offer, Mr. Monroe, Sec. of State, on Dec. 11, 1815, declined. As to treatment of Dartmoor prisoners, see further infra, § 348c. (5) CASE OF THE PROMETHEUS. § 315d. The Prometheus, a steamboat engaged by the American Atlantic and Pacific Ship Canal Company in the work of the then projected canal, was attached, when about to leave the harbor of Greytown, in November, 1851, by a writ purporting to have been issued by the "Mosquito King" for certain port charges. These charges the commander refused to pay, on the ground of their exorbitancy and illegality; but, on the Prometheus undertaking to leave the harbor without payment, she was fired into by the Express, a British armed cutter, under orders of Mr. Greene, British vice-consul at Greytown, claiming also to be regent of the Mosquito territory. The charges being then paid by the Atlantic and Pacific Ship Company under protest, the company complained of this outrage to Mr. Webster, who at once instructed Mr. Lawrence, our then minister at London, to inquire of Lord Palmerston, the foreign secretary, whether the attack on the Prometheus was under British authority, and whether it was approved by the British Government. Lord Palmerston having gone out of office before a reply was made, inquiries were instituted by his successor, Lord Granville, who, as soon as he received an official report from Greytown, disavowed and apologized for the action of the Express. For subsequent attack on Greytown, see supra, § 224a. Reference to docu. ments relative to the attack on the Prometheus is made supra, § 224a. II. ARBITRATION. § 316. Arbitration, in reference to private claims, has been already considered. (Supra, § 221.) National disputes as to boundaries, or to other public issues, are, in like manner, submitted to arbitration. As illustrations may be mentioned the reference of some of the questions arising under the Treaty of Ghent to the Emperor of Russia (supra, § 150); that of the northeastern boundary to the King of the Netherlands; that of the Alabama spoliations to certain eminent statesmen. In all these cases the questions involved were questions of public law, and in this sense distinct from those heretofore discussed as falling under the head of private claims. (Supra, § 271.) By the fifth article of the Treaty of Ghent it was stipulated that commissioners should be respectively appointed by the contracting parties for the purpose of ascertaining, surveying, and finally determining the northeastern boundary of the United States; but in case of their disagreement, their reports should be referred to the arbitration of some friendly sovereign or state. If the commissioners should agree, then their "map and declaration fixing the boundary" were to be considered by both parties" as finally and conclusively fixing the said boundary." In case of their disagreement, then "His Britannic Majesty and the Government of the United States engage to consider the decision of such friendly sovereign or state to be final and conclusive on all the matters so referred." The following papers show the proceedings under the award of the King of the Netherlands, whom both parties agreed on as arbitrator: เ "His Britannic Majesty's Government is too well acquainted with the division of powers in that of the United States to make it necessary to enter into any explanation of the reasons which rendered it obligatory on the President to submit the whole subject to the Senate for its advice. The result of that application is a determination on the part of the Senate not to consider the decision of the King of the Netherlands as obligatory, and a refusal to advise and consent to its execution. But they have passed a resolution advising the President to open a negotiation with His Britannic Majesty's Government for the ascertainment of the boundary between the possessions of the United States and those of Great Britain on the northeastern frontier of the United States, according to the treaty of peace of 1783.' This resolution was adopted on the conviction felt by the Senate that the sovereign arbiter had not decided the question submitted to him, or had decided it in a manner unauthorized by the submission. "It is not the intention of the undersigned to enter into an investigation of the argument which has led to this conclusion; the decision of the Senate precludes it, and the object of this communication renders it unnecessary; but it may be proper to add that no question could have arisen as to the validity of the decision had the sovereign arbiter determined on, and designated, any boundary as that which was intended by the treaty of 1783. He has not done so. Not being able, consistently with the evidence before him, to declare that the line he has thought the most proper to be established was the boundary intended by the treaty of 1783, he seems to have abandoned the character of arbiter and assumed that of a mediator, advising both parties that a boundary which he describes should be accepted as one most convenient to them. But this line trenches, as is asserted by one of the States of the Union, upon its territory, and that State controverts the constitutional power of the United States to circumscribe its limits without its assent. If the decision had indicated this line as the boundary designated by the treaty of 1783, this objection could not have been urged, because then no part of the territory to the north or the east of it could be within the State of Maine, and however the United States or any individual State might think itself aggrieved by the decision, as it would in that case have been made in conformity to the submission, it would have been carried into immediate effect. The case is now entirely different, and the necessity for further negotiation must be apparent to adjust a difference which the sovereign arbiter has, in the opinion of a co-ordinate branch of our executive powers, failed to decide. That negotiation will be opened and carried on by the President with the sincerest disposition to bring to an amicable, speedy, and satisfactory conclusion a question which might otherwise interrupt the harmony which so happily subsists between the two countries, and which he most earnestly wishes to preserve. "Presuming that the state of things produced by the resolution of the Senate above referred to, and the desire expressed by the President to open, carry on, and conclude the negotiation recommended by that body in the most frank and amicable manner, will convince His Britannic Majesty's Government of the necessity of meeting the offers now made with a correspondent spirit, the undersigned is directed to propose for consideration the propriety of carrying on the negotiation at this place. The aid which the negotiators on both sides would derive from being in the vicinity of the territory in dispute, as well as the information with respect to localities from persons well acquainted with them which they might command, are obvious considerations in favor of this proposition. "Until this matter shall be brought to a final conclusion the necessity of refraining, on both sides, from any exercise of jurisdiction beyond the boundaries now actually possessed, must be apparent, and will, no doubt, be acquiesced in on the part of the authorities of His Britannic Majesty's province as it will be by the United States." Mr. Livingston, Sec. of State, to Mr. Bankhead, July 21, 1832. As to finality of arbitrations, see supra, §§ 291, 238. MSS. Notes, As to Ashburton treaty, settling the above controversy, see supra, § 150e. "By that convention (that of September 29, 1827) it was agreed to submit the question, which was the true boundary according to the treaty of 1783, to the decision of an arbitrator to be chosen between them. The arbitrator selected, having declared himself unable to perform the trust, it is as if none had been selected, and it would seem as if the parties to the submission were bound by their contract to select another; but this would be useless, if the position assumed by the Government of His Britannic Majesty be correct, that it would be utterly hopeless at this time of day to attempt to find out, by means of a new negotiation, an assumed line of boundary, which successive negotiators and which commissioners employed on the spot have, during so many years, failed to discover. The American Government, however, while they acknowledge that the task is not without its difficulties, do not consider its execution as hopeless. They still trust that a negotiation opened and conducted in a spirit of frankness, and with a sincere desirè to put an end to one of the few questions which divide two nations whose mutual interest it will always be to cultivate the relations of amity and a cordial good understanding with each other, may, contrary to the anticipations of His Britannic Majesty's Government, yet have a happy result; but if this should unfortunately fail, other means, still untried, remain. It was, perhaps, natural to suppose that negotiators of the two powers coming to the discussion with honest prejudices, each in favor of the construction adopted by his own nation, on a matter of great import to both, should separate without coming to a decision. The same observations may apply to commissioners, citizens, or subjects of the contending parties, not having an impartial umpire to decide between them; and, although the selection of a sovereign arbiter would seem to have avoided these difficulties, yet this advantage may have been more than countervailed by the want of local knowledge. All the disadvantages of these modes of settlement heretofore adopted might, as it appears to the American Government, be avoided by ap pointing a new commission, consisting of an equal number of commissioners, with an umpire selected by some friendly sovereign from among the most skillful men in Europe, to decide on all points on which they disagree, or by a commission entirely composed of such men so selected, to be attended in the survey and view of the country by agents selected by the parties. Impartiality, local knowledge, and high professional skill would thus be employed, which, although heretofore separately called into the service, have never before been combined for the solution of the question. This is one mode, and, perhaps, others might occur in the course of the discussion, should the negotiators fail in agreeing on the true boundary. An opinion, however, is entertained, and has been hereinbefore expressed, that a view of the subject not hitherto taken might lead to another and more favorable result." Mr. Livingston, Sec. of State, to Sir C. R. Vaughan, Apr. 30, 1833. MSS. Notes, Sir C. R. Vaughan's reply, dated May 11, 1833, is in Brit. and For. St. Pap., 1833–34, vol. 22, p. 806. In it he says: "This rejection of the decision of the arbitrator by the Government of the United States has thrown the parties, as Mr. Livingston observes, into the situation in which they were prior to the selection of His Netherland Majesty to be the arbitrator between them. It may be observed, also, that though the tracing of the boundary line according to the treaty of 1783 appeared from the statements delivered by the respective parties to be the principal object of arbitration, the King of the Netherlands was invited, in general terms, 'to be pleased to take upon himself the office of arbitration of the difference between the two Governments.' |