Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, with the Annual Message of the President, December 6, 1875, Volume I

No. 122.
Mr. Logan to Mr. Fish.

Legation of the United States,
Santiago de Chile, May 24, 1875. (Received June 25.)

No. 153.]

Sir: Under cover of this dispatch, I inclose the full text in printed form of the sentence and award of the arbitrator in the matter of the Chili-Peru alliance of 1865.

I have, &c.,

C. A. LOGAN.

[Inclosure in No. 153.]

Sentence and award of the arbitrator in the matter of the Chili-Peru alliance.

From the West Coast Mail, May 22, 1875.

treaty of alliance, offensive and defensive, between chili and peru.

Whereas the respective plenipotentiaries have stipulated at this capital, on the fifth day of December, one thousand eight hundred and sixty-five, between the republics of Chili and Peru, the following treaty of alliance, offensive and defensive, viz:

In the name of Almighty God, the republics of Chili and Peru, in presence of the danger by which America is menaced and of the violent aggression and unjust pretensions with which the Spanish government has begun to attack the dignity and sovereignty of both, have agreed to enter into a treaty of alliance, offensive and defensive; for which purpose they have nominated plenipotentiaries, ad hoc: thus, on the part of Chili, Señor Domingo Santa Maria; and on the part of Peru, the secretary for foreign affairs, Señor Toribio Pacheco; who, having deemed their respective powers sufficient, proceeded to frame the present preliminary treaty.

• Art. I. The republics of Chili and Peru stipulate between themselves the most intimate alliance, offensive and defensive, in order to repel the present aggression of the Spanish government, as well as any other from the same government that may be directed against the independence, the sovereignty, or the democratic institutions of both republics, or of any other of the South American continent; or that may have originated in unjust claims deemed such by both nations, and which may not be advanced according to the principles of international law, or which may be disposed of in a way contrary to said law.
• Art. II. For the present and by the present treaty, the republics of Chili and Peru oblige themselves to unite such naval forces as they have or may in future have disposable, in order to oppose with them such Spanish maritime forces as are to be or may be found on the waters of the Pacific, whether blockading the ports of one of said republics, as now happens, or of both, as it may happen, or in any other way committing hostilities against Chili or Peru.
• Art. III. The naval forces of both republics, whether they operate together or separately, shall obey, while the present war provoked by the Spanish government lasts, the government of that republic on whose waters said naval forces be stationed.
• The officer of highest rank, and in case of there being many of the same rank, the senior among them, who may be commanding any of the combined squadrons, will assume command of them, provided such squadrons operate together.
• Nevertheless, the governments of both republics may confer command of the squadrons when they operate together, to the native or foreign officer they may think most skillful.
• Art. IV. Each one of the contracting republics on whose waters the combined naval forces may happen to be, on account of the present war against the Spanish government shall defray all kinds of expenses necessary for the maintenance of the squadron or of one or more of its ships; but at the termination of the war, both republics shall nominate two commissioners, one on each side, who shall make the definite liquidation of the expenses incurred and duly vouched, and shall charge to each of the republics half of the total amount of said expenses. In the liquidation, such partial expenses are to be comprised for payment, as may have been made by both republics in the maintenance of the squadron or one or more of its ships.
• Art. V. Both contracting parties pledge themselves to invite the other American nations to adhere to the present treaty.
• Art. VI. The present treaty shall be ratified by the governments of both republics, and the ratifications shall be exchanged at Lima within forty days, or sooner if possible.

In faith whereof the plenipotentiaries of both republics sign and seal the present treaty.

Done at Lima on the fifth day of December, one thousand eight hundred and sixty-five.

DOMINGO SANTA MARIA.

TORIBIO PACHECO.

Therefore the present treaty having been approved by decree of this date, I have ratified it, holding it as a national law, and pledging for its observance the national honor.

In faith whereof I sign the present ratification, sealed with the seal of the republic and countersigned by the secretary of state for foreign affairs, at Lima, on the twelfth day of January, in the year of our Lord one thousand eight hundred and sixty-six.

MARIANO IGNACIO PRADO.

TORIBIO PACHECO.

act of exchange of ratifications.

The undersigned, Domingo Santa Maria, envoy extraordinary and minister plenipotentiary of the republic of Chili, and Toribio Pacheco, secretary for foreign affairs for the republic of Peru, having met in the office of the bureau of foreign relations at Lima, for the purpose of exchanging the ratifications of the treaty of alliance, offensive and defensive, done at Lima on the fifth of December, one thousand eight hundred and sixty-five, and after exhibiting their respective full powers, which were found to be in good and due form, they carefully compared the two texts of said treaty, and finding them exact and agreeing between themselves and with the original, they effected said exchange.

In faith whereof, the undersigned sign the present act of exchange, and seal it with their seals, at Lima, on the fourteenth of January, one thousand eight hundred and sixty-six.

DOMINGO SANTA MARIA.

TORIBIO PACHECO.

bases of the liquidation of the allied accounts.

Upon a careful consideration of the terms of the treaty of alliance, offensive and defensive, between Peru and Chili, hereto prefixed, the arbiter is of the opinion that the liquidation of the accounts of the allies must be made upon the following bases:

• First. To consider the treaty of alliance as operative from the 5th of December, 1865, and the vessels then and thereafter placed at the disposal of the allied governments, as being under the common expense from that date, to the cessation of their service.
• Second. To place only such vessels upon the common expense as formed the allied fleet proper, viz: the Amazonas, Apurimac, Union, América, Huáscar, Independencia, Esmeralda, Maipú, Covadonga, Abtao, Valdivia, Arauco, and Nuble.
• Third. To regard a vessel as being upon the common expense as soon as she was fitted to serve the cause, and was entered so to serve it, upon the prescribed field of operations, viz, the waters of the Pacific, bordering the coasts of Peru and Chili.
• Fourth. To regard all kinds of expenses (apart from those of original equipment) necessary for the maintenance of the allied vessels in a condition of effective service as belonging to the common expense, including therein the sums paid for proper transport-service.
• Fifth. To regard as valid the Calvo-Reyes liquidation of September 15, 1870, in so far as it rests upon the bases herein set forth.
• Sixth. To regard the 31st of October, 1867, as terminating the common expense for such vessels as remained in service up to that period; and the date when a vessel was withdrawn, by capture or entire disability for further service, as the date when the common expense shall cease as to the said vessel.
• Seventh. To regard nothing as being due from one party to the other, upon account of prize-captures made by either, except in the case of the Thalaba.
• Eighth. To regard nothing as being due from one party to the other upon account of interest, until a balance of indebtedness is determined and default of payment occurs.
• Ninth. To regard the decision of minor incidental questions as resting upon the general principles of law and equity, these being fully treated of in another portion of this judgment.

In accordance with the foregoing bases the allied service must be computed as follows:

Peruvian vessels.

• Frigate Amazonas, from December 5, 1865, to January 16, 1866.
• Frigate Apurimac, from December 5, 1865, to October 31, 1867.
• Corvette Union, from December 5, 1865, to October 31, 1867.
• Corvette América, from December 5, 1865, to October 31, 1867.
• Monitor Huáscar, from the 6th of June, 1866, (the time of reaching Chiloé,) to October 31, 1867.
• Frigate Independencia, from the 6th of June, 1866, to October 31, 1867.

Chilian vessels.

• Corvette Esmeralda, from December 5, 1865, to October 31, 1867.
• Steamer Maipú, from Decembers, 1865, to October 31, 1867.
• Schooner Covadonga, from December 5, 1865, to October 31, 1867.
• Steamer Abtao, from November 20, 1866.
• Steamer Valdivia, from April 5, 1867, to October 31, 1867.
• Steamer Arauco, from April 5, 1867, to October 31, 1867.
• Steamer Nuble, from June 1, 1867, to October 31, 1867.

In conformity with the preceding bases of liquidation, it has been found that the government of Peru is indebted to the government of Chili, upon account of the expense of the allied fleet, in the sum of one million one hundred and thirty thousand dollars.

The arbiter, not having been furnished with an exact statement of the amount of money paid by the Peruvian government to the government of Chili, in abatement of its indebtedness, it must be understood that the foregoing statement of indebtedness is to be reduced to the extent of the payments upon account made by the government of Peru to the government of Chili.

It would have been more in accordance with the desires of the arbiter, if the allies had been able to agree, in a formal manner, upon a few briefly-stated interrogatories, which should embrace the questions at issue between them, and have required his simple opinion thereon.

From the singularly intricate nature of the case, however, with its very numerous ramifications, this was found to be impossible; and in the protocol agreeing to the reference to arbitration, the arbiter was invested with the additional faculties of a judge, and requested to give his opinions in the formal manner of a legal sentence. This he has endeavored to do, as briefly as possible, consistently with a fair expression of the reasons which have moved him to the formation of his opinions, and with the expressed desire of the parties; together with an act of simple justice to himself, which is, that in the discharge of duties so extensive, so responsible, and so very delicate in character, he sufficiently acquit himself of any possible imputation of being dogmatic, arbitrary, or careless, in the making of his sentence.

With these remarks the following observations are submitted as the bases upon which the arbiter’s conclusions have been reached:

observations.

The treaty of alliance, offensive and defensive, between Chili and Peru as against Spain, was signed on the 5th day of December, 1865, and was ratified, according to the requirements of the instrument, on the 14th of January, 1866.

In reference to the alliance, it is to be observed, that it was equal; and to the treaty, that, embarking the allies in a common cause, and requiring them to act with all their actual strength, however unequal their real strength, it was also equal. (Vattel, 6th Am., 198.)

Considering the treaty in reference to its validity, it is to be remarked, that it has all the elements, and is accompanied with all the requisite formalities, of a valid international contract, no allegation to the contrary being made by either party,

Considered in reference to its construction, it may be said to be indefinite, and in one sense incomplete, and, therefore, somewhat ambiguous. It is indefinite or incomplete for several reasons; the principal of which are, that no specific mention is made as to how many vessels and how many men each ally shall furnish when they shall be furnished; what class of expenses shall be considered as common to the allies, and what as special; when these common expenses shall begin to accrue, &c.; and it is both incomplete and ambiguous in Art. IV, providing for the ultimate settlement of the accounts between the allies.

As to the principal points of difference growing out of the differences of construction of the treaty, it appears to the arbiter they may be comprised under the following heads:

• First, as to the full scope and precise date of becoming operative, of the treaty ratified January 14th, 1866, as bearing upon the question, when the expense attached to each vessel began to accrue as common expense; as well as the number of vessels embraced in the alliance.
• Second, as to the particular class of expenses which should be borne by the parties in their separate and in their allied capacity.
• Third, as to the exact character and full powers of the commissioners appointed by the allies, under the provisions of Art. IV.
• Fourth, as to the validity of the agreements made April 8th and 12th, 1869, by the commissioners Calvo and Reyes, fixing the bases of liquidation, together with the partial adjustment of September 15th, 1870.
• Fifth, as to when the period of common expense, pertaining to the individual vessels of the alliance, terminated.
• Sixth, as to the division of the prize-spoils.

first.

As to the full scope and precise date of becoming operative of the treaty ratified January 14 1866, as bearing upon the question when the expense attached to each vessel began to accrue as common expense, as well as the number of vessels embraced in the alliance.

A. At what precise date did the treaty become operative?

It was signed by the plenipotentiaries December the 5th, 1865, and the ratifications were formally exchanged January 14, 1866.

It therefore became operative from the former date. (“The exchange of ratifications has a retroactive effect, confirming the treaty from its date.” Lawrence’s Wheaton page 326.)

B. What was the scope of the treaty in relation to embracing acts of the plenipotentiaries antecedent to its actual date?

This question, raised by one of the parties with the view of computing the common expense from a much earlier date than the formation of the treaty, viz, the 17th of October, 1865, would become of importance under a certain state of facts. On the 16th of October, 1865, Señor Don Domingo Santa Maria, as confidential agent of Chili in Peru with full powers, addressed a note to the minister of foreign relations of Peru, Señor Don Juan Manuel La Puente, stating his desire to procure the assistance of the naval and land forces of Peru against Spain, which latter had already declared hostilities against Chili, by blockading its ports; and soliciting a personal audience, to lay the matter of his mission before him.

It appears by the record that this interview took place on October 17; that, as a result of the interview, the Peruvian government, through its minister, issued orders that four of its vessels should at once proceed to Chilian waters, under order of that government, to assist in repelling the Spanish attack; that the Peruvian minister addressed Señor Santa Maria with an official note, dated October 17, 1865, advising him of the fact, and inviting the latter, if he desired to frame any treaty with Peru, to state it, and concluded by remarking that “this note, together with the documents referred to,” (meaning the order placing the vessels named at the disposition of the Chilian government with the decree of war against Spain,) “being the preliminary of the intimate alliance, defensive and offensive, which is established henceforth between both nations.”

On October 18, 1865, Senor Santa Maria addressed an official note to the Peruvian minister, acknowledging the patriotism of Peru; accepting the order and the assistance, and concluding as follows: “The undersigned perfectly understands that the first foundation of the treaty of alliance, offensive and defensive, for opposing Spain which ought to exist between Peru and Chili is already stipulated; but, nevertheless, he thinks it would be convenient to frame some other stipulations to render the proceedings of both governments during the war they are engaged in, more expeditious.”

On the 5th of December, 1865, Señor Santa Maria upon the part of Chili, and Señor Toribio Pacheco upon the part of Perú, formally framed and signed the treaty of that date.

The conclusion from this statement of facts is clear; the official preliminaries recited are to be considered as part of the treaty, and, under it, the vessels Amazonas, Apurimac, América, and Union would be considered upon the common expense from October 17, 1865. (“All mere verbal communications”—and, by unavoidable corollary, written communications—“preceding the final signature of a written convention, are considered as merged in the instrument itself.” Lawrence’s Wheaton, Am. page 318.)

(“All communications, written or verbal, between the parties to a treaty, preceding its signatures, and relating to the subject thereof, are merged in the treaty.” Field, Outlines of an International Code.)

But the record shows that however good the intention in the matter of dispatching the vessels named may have been, that it was not done by reason of internal difficulties connected with a change of government by that republic; that the said vessels did not become “disposable” for the purposes of the treaty until a much later date. There having been no actual compliance with the spirit or letter of the treaty until the date of its signature, the latter must be considered as the true starting-point of the alliance.

C. What were the vessels embraced in the alliance?

It is unfortunate for both governments that the treaty did not specify, in an exact manner, the number of vessels which were to be considered as constituting the alliance at its formation, together with provisions as to the means of entry of new vessels, as from time to time they became available. The omission to do so proper a thing can only be explained by considering the great and alarming danger the allies were threatened with in the presence of so large and powerful a fleet as Spain then had upon their coasts.

In the face of such an opponent all considerations of mere money were sunk by the allies before the inexorable necessity of pressing every available means into service to avert the common danger.

The question raised in this connection is one of the two so widely separating the allies, and upon its decision rests the issue of a very large sum of money. It is proper, therefore, to consider it with the utmost care and under all of the lights possible to be thrown upon it. An attentive reading of the treaty will justify the following analysis:

Article 1 stipulates an alliance for a certain purpose, viz, “In order to repel the present aggression,” &c.

Article 2 prescribes the means for the effective carrying out of the purposes of the alliance. It is agreed that both republics shall unite such “naval forces” as at the time, (i. e., the date of the treaty) they had “disposable,” (disponibles,) or might in future (i. e., during the life of the treaty) have “disposable,” for a definite purpose—i. e., “to oppose with them such Spanish maritime forces,” &c.

The simple language of the text of the two articles would seem to settle the whole question. The allies were threatened with the devastation of their sea-ports by a powerful Spanish fleet as a measure “of aggression of the Spanish government.” In the inability of either republic to cope alone with so powerful a foe, it was agreed to make common cause against the maritime forces of Spain upon the waters of the Pacific, and unite certain “naval forces,” which are exactly defined by the treaty, (all those which were disposable,) for the purpose of opposing with them these “maritime forces,” &c. In this the maxim of strength in union was intended to be illustrated and its benefits achieved.

“The idea involved comprehends two points: First, to unite the disposable vessels of the republics; and second, with such disposable vessels so united, to “oppose the Spanish maritime forces, whether blockading their ports, or in any other way committing hostilities against them.” The logical conclusion is that the allies contemplated the formation of a fleet, which might successfully cope with the Spanish fleet and thwart its designs. This interpretation gives a force to the alliance which, by creating a substantial entity, makes the article operate to a greater extent than the mere resolution to unite their efforts by contributing all their forces as the incidents of the war might successfully call them into action. This general idea of contributing an effective fleet seems plainly indicated by the treaty in its parts and in its entirety. If, however, there might be a reasonable doubt from the text as to whether it was contemplated forming a fleet to act in concert against the Spanish forces, or whether it purposed to unite all of the vessels of each country and place them upon the common expense during the war, it must be dispelled by one word in the article—the word disposable, (disponibles.)

This word is restrictive in its signification. No other “naval forces” than those which are disposable are to be united by the allies. Two distinct classes of naval forces are recognized—those disposable and those not disposable. The disposable are to be united under the treaty for a certain purpose; while the undisposable are reserved for another purpose. What can that purpose be? Is it not manifestly for the individual protection of each country? What other consideration could render them undisposable for the purposes of the alliance? Why unite only the disposable “naval forces,” if it were intended to embrace all of the naval forces of both countries and place them upon the common expense?

If the reference to the disposable “naval forces” thus united be followed through the treaty, it appears to confirm the above construction in a conclusive manner.

Article 3 prescribes that the naval forces referred to in article second shall obey that government upon whose waters they be stationed, and this whether they operate together or separately; thus providing for the contingency of the fleet, before combined, being required to separate by the exigencies of the war, and act upon different waters. This article also provides for the assumption of the supreme command of the united squadron or naval forces of both republics by the officer of highest rank, in case they operate together; but reserves the right to confer command upon any officer the governments may think most skillful when they act in combination; thus preserving the idea of a single body directed by a single officer, except in the event of their not operating together.

Again, article fourth prescribes that “each government upon whose waters the combined naval force may happen to be shall defray all kinds of expenses,” &c. The adjective combined has here a specific meaning, relating to the act of aggregation, and consistently preserves the idea of the treaty.

It cannot signify an ideal union, while physical distinctness exists. A material thing is treated of, the maintenance of “the combined naval forces.” It were superfluous to say that a government would naturally pay the expenses of its own ships on its own waters; and the provision must be intended to meet the case of the ships of one of the republics on the waters of the other;-and this consideration, coupled with the obvious import of the word combined, carries the whole question with it and calls into existence a substantial and material fleet of war-vessels, which in their operations may find themselves upon the waters of one or the other of the republics whose government is to provide for their maintenance.

To gather the fragments of the different articles and put them in a sentence so they shall tell their own story, it may be said that the disposable naval forces of both republics shall be united for the purpose of opposing the maritime forces of Spain on the waters of the Pacific; their command shall be intrusted to a certain officer when they act in combination; and, by inference, to the person naturally commanding them when they do not; and the cost of maintaining these combined naval forces shall be borne by that government upon whose waters they happen to be. No warrant is to be found in the treaty for the division of expenses upon any other basis than this.

The disposable and combined naval forces of both Republics shall be maintained by that government upon whose waters they happen to be, and the division of expenses is to be made at the termination of the war. No other expense is common.

Though possessing only a corroboratory value, but tending to show the intention of the parties to the treaty, it may be said, in general terms, that every document of the government officials of the time, presented to the arbiter, bears out the construction of a single combined fleet, created by the allies, for the purpose of opposing the Spanish fleet.

Señor Pacheco, one of the makers of the treaty, writes a note to the minister of Peru in Chili, under date of November 2, 1867, in which the character of the Callao, as an allied vessel, is denied; and the allied squadron, which, it is stated, was stationed at Chiloé, in May, 1866, is designated by the specific mention of the vessels at that time composing it; thus plainly giving the allied squadron a “local habitation and a name.” And in this connection, another fact may be referred to. The Callao and Sachaca were, by decree of the Peruvian government, transferred to a private company, on the 31st of December, 1866, for the purpose of “facilitating the coasting-trade” of one of the allies. Had these vessels constituted a part of the allied fleet, whose expenses were to be borne in common by the allies, the act of withdrawing them by one ally without the consent of the other could hardly be considered proper. The treaty of alliance was a pact between two powers, whereby, for certain mutual interests at stake, it was stipulated that the parties should unite their disposable naval forces for their common defense. Each relied upon the assistance and good faith of the other, and neither party could violate his agreements without annulling the contract. An alliance constituted upon the right to withdraw one or more of the contributed elements whenever the interests or caprice of either party might dictate, would have no strength, moral or physical. It is not probable that either of the enlightened nations, parties to the contract, would place itself and its fortunes at the hazard of such a chance. Quite as specific as the note of Señor Pacheco before referred to, is the expression contained in an agreement between the minister of foreign relations of Chili and the envoy extraordinary of Peru, under date of April 17, 1866, by which a distinguished vice-admiral is intrusted with the “command in chief of the naval forces which the governments of Chili and Peru now control, or may be able to dispose of, during the actual war.”

Again, a prize-convention was held by the representatives of the two republics,, on the 26th of December, 1866, by which certain rules for the distribution of prizes were agreed upon, the following words forming part of article fourth: “Provided, the capturing vessel makes a part of the allied squadron; but if the capturing vessel do not belong to the allied squadron, but have remained detached to the private service of one of the contracting parties,” &c.; thus, at once, preserving the distinct entity of the allied squadron, and the retention of certain vessels for the private service of either party under the head of undisposable. This convention was not ratified through non-necessity, but has an importance as showing understanding and intention at the time.

Further, in the protocol signed by the minister of foreign relations of Chili, and the envoy extraordinary of Peru in Chili, under direction of their respective governments, dated October 5, 1867, it was plainly agreed to dissolve the allied squadron by placing the Peruvian division forming part of it under command of its own government.

Of this protocol four leading points are to be observed:

1. That the alliance itself should remain intact.

2. That placing the Peruvian division under orders of its own government should operate to dissolve the common expense.

3. That, should the enemy again call the allies into action, the mutual-expense arrangement for the naval divisions of Peru and Chili under consideration should form the subject of a new agreement.

4. That profound silence is maintained as to the common expense ceasing in regard to vessels not under the orders of Chili; and hence, if all the naval vessels of one of the allies had been under the common expense, as claimed, they would still remain so, no modification of the treaty in regard to them having ever been made.

This agreement between Señores Pardo and Fontecilla, whereby the common expense was considered terminated, has an important significance, as showing the interpretation given to the treaty in this respect by those gentlemen. This interpretation is only individual opinion, to be sure, and therefore is in no sense conclusive; but nevertheless it has corroborative value, as showing the understanding of the makers of the treaty by those who were co-actors in the events of the time.

The sole object of the agreement, it is admitted, was to terminate the common expense account of the allies; and it will be observed that this was done, not by a direct agreement to terminate said common account, but by the stipulation that, as it was unnecessary for “the Peruvian naval division incorporated into the allied squadron to continue longer under orders of the Chilian government,” the said division should, from the date of the agreement, be considered as under orders of the Peruvian government; but, for reasons which do not appear, it was further stipulated that, notwithstanding the said division was placed under orders of its own government, its expenses should be common until the first day of November following.

There can be no mistake as to the understanding of the makers of the agreement in regard to the constitution of an allied squadron proper, whose expenses only were to be common. The placing of the “Peruvian naval division incorporated in the allied squadron,” under orders of its own government, terminated the common expense at a certain date.

No other common expense is provided for; the designation of those vessels whose expense had been common is specific, viz: “The Peruvian naval division incorporated into the allied squadron, under orders of the Chilian government.” This construction must be accepted; there is but one alternative—that of considering the common expense account as existing to this day. The latter proposition, as involving a conceded absurdity, leaves only the former for adoption.

Further, the documents are copious, proving that the Commissioners, Calvo and Reyes, acted constantly under instructions from their governments, in the liquidation made by them; while their work shows conclusively that they entertained no idea of creating a community of expense in regard to any other vessels than those specifically defined in their joint liquidation.

Finally, no claim to the contrary by either party anywhere appears, until the supreme decree of the government of Peru, June 3, 1869.

These considerations convey to the mind of the arbiter the unavoidable conviction that the treaty of alliance substantially established only two things: First, that the two republics entered into a league to defend themselves, and back each other to the extent of their ability, against Spain; and second, that as the contest was expected to be of a naval character, and neither of the allies possessed a fleet large enough, or strong enough, to cope with the Spanish fleet, they stipulated to put such vessels togeth er as they could dispose of compatibly with their individual interests and safety, to opj: ose the Spanish fleet; and that the expense account of the vessels composing the allied fleet should be borne by the allies in common.

D. At what time did the common expense begin to cover vessels which entered the alliance subsequently to the date of the treaty?

In the absence of specific mention upon this important point recourse must be had to the general structure and spirit of the treaty. In the solution of the question two points must be kept prominently in view: First, the vessels which were to be embraced in the alliance; and second, the field of operations prescribed by the treaty.

As regards the first, it appears that such naval forces as the republics then had, or might in the future have at their disposal, were to be embraced in the alliance; and accordingly vessels were added to the combined forces by both parties, as from time to time they became available.

As regards the second point, it must be carefully observed that those naval forces were to be united for a particular purpose, about which there can be no doubt whatever—this purpose being “in order to oppose with them such Spanish maritime forces as are to be or may be found on the waters of the Pacific, whether blockading,” &c. Here the field of hostile operations is limited to the waters of the Pacific, and, by fair and logical induction, from the concluding sentences of the article to those portions of the Pacific, bordering the coast of the allies. Therefore, except through the most extensive interpretation, it would not be within the terms of the treaty to transfer the allied fleet to the coast of Spain or the waters of the Atlantic; nor could any vessel properly belong to the alliance until she was not alone ready for service, but ready for service upon 1 he field of action, so plainly prescribed by the treaty. Whenever, therefore, a vessel belonging to either of the allies was ready for service upon such parts of the water of the Pacific as rendered her of substantial aid to the common cause, and brought her under the direction of the naval chief of the allied fleet, she became an allied vessel under the stipulations of the treaty.

second.

As to the particular class of expenses which should be borne by the parties in their separate and in their allied capacity.

The language of article fourth of the treaty seems plainly enough to interpret the meaning of its makers. The particular government upon whose waters the naval forces united or combined in a mutual cause, under article second, may happen to be, shall cefray all kind of expenses necessary for the maintenance of the squadron or one or more of its ships. The word maintenance has no technical signification in this relationship, meaning simply the upholding, supporting, and keeping up of each particular vessel, that it might sustain its attitude of belligerency. Hence, its provisions, the pay of its men, its fuel, its ammunition, the repairs necessary to maintain it in its belligerent capacity, &c., are legitimate items belonging to the common expense. It must be remarked, however, that while the warrant is sufficiently extensive to cover every tern necessary to the accomplishment of the purpose named, there appears no authority for levying expense upon the common treasury, which did not go to the maintenance above spoken of. Neither would it be proper to compute the expenses of original equipment, outfitting, &c., of such vessel as common expense, these being considered the contribution of each nation to the common cause, and in furtherance of the common safety, under the treaty, which regarded the strength of both republics as being equal, though in fact it may not have been so. As no sharp line of division can be drawn as to the class of expenses which, while necessary under the head of maintenance, at the same time added a permanent value to a particular vessel, the determination at to such cases must fall within the domain of equity.

Nor can it be inferred from the treaty that the loss of the exclusive property of one or the other, in conflicts with the enemy, was to be reimbursed by the allies. The alliance, as considered equal in that no mention was made of the respective vessels each was to furnish, the forces being considered equal for the purposes of the alliance, as before remarked. The vessels of each, such as they were, and however acquired, were embarked in the common cause; and the danger to each republic being equal, as repeatedly stated in the papers accompanying the formation of the treaty, and by the treaty itself, each nation assumed the risks and casualties of the war from necessity, the only expenses which were considered as common between them being those connected with the maintenance of the squadron, or one or more of its ships.

third.

As to the exact character and full powers of the commissioners, appointed by the allies, under the provisions of Article IV.

The difference between the allies upon this point seems radical and irreconcilable; but, it would appear from a careful consideration of the language of Article fourth, taken in its usual and accepted sense, together with established usage pertaining to such agents, that there should be no difficulty in arriving at the true solution of the question.

The word commissioner (Latin, committere, to intrust to) is usually applied to an agent, who has a commission or warrant to perform some special business, or particular branch of duty. When employed by one government, in the transaction of business with another, it usually falls within this definition; and in such cases, the warrant or power of the officer should exactly express the nature and extent of his commission. (Les commissaires, envoyés a l’etranger, ont dans cette qualité, aucude des prerogatives des ministres publics, mais le titre de ministre leur peut être conferé ainsi, que cela la pratique quelque fois pour des comissaires ay ant mission de regler de delimitations de frontiers ou de proceder a des liquidations. C’est done á leur constituant a préciser le caractere official dont il en tend les revêtir.” Martens’ Guide Diplomatic, page 62.) Vattel contends, that an agent sent with credentials on public business, becomes a public minister, his title, whether it be deputy, commissioner, or other, making no difference in the case. The real question between the allies, however, is not as to the precise diplomatic character of the commissioners, provided for in Article fourth, but the exact power conferred upon them by that article. It is a fair construction of the article, that having ascertained the amount of expense incurred, they were to make report to the two republics, for approval or ratification; or did the article invest them with authority to make a final settlement between the parties?

There can be no question that it was the intention of the allies to bear each an equal portion of the expense of the allied fleet, and the appointment of the commissioners was a simple provision for arriving at the total amount of the legitimate expense, that each of the republics might pay the one-half. Their whole duty was to make the definite liquidation of the expenses incurred and duly vouched, and charge to each republic half of the total amount of said expenses. (“Los cuales practicarán la liquidacion definitiva de los gastos hechos y debidamente justificados y cargarán a cada una de ellas la mitad del valor total a que estos gastos asciendan.”)

The commissioners were authorized by the article to do two things, and only two things: first, to make the definite liquidation of the expenses incurred and duly vouched; and second, to charge each of the republics one-half of the total amount of said expenses.

As regards the first duty, there can be no double interpretation. Bouvier in his Law Dictionary defines liquidation as “a fixed and determinate valuation of things, which before were uncertain.” They were, then, to ascertain the expenses incurred, according to the proper vouchers. After having done this, as the second branch of their duties, they were to charge one-half of the amount of the expenses so ascertained to each republic. The verb to charge has here no technical meaning in the absence of other stipulations, and must be taken in its usual sense. According to Webster, it signifies “to place to the account of, as a debt; to make responsible for.”

The commissioners, then, were expressly authorized by the treaty to ascertain the whole expense, and to put one-half the total to the account of each republic, as a debt. These were their specific duties as commissioners, and the absence of any other conditions in the treaty shows that their acts were to be considered final. If the words “shall charge” have not this meaning, they have none; and having none, there can be no resulting effect. Hence, according to a recognized rule of interpretation, that signification should be adopted which will permit the provision to operate.

Indeed, it does not appear that any contrary understanding was entertained by either party, until the protocol of the conference between the Chilian chargé Señor Godoi, and the Peruvian minister of foreign relations and of finance, was signed on November 6, 1869, when Señor Angulo made the statement, apparently acquiesced in by Señor Godoi, that the liquidation of the commissioners required the final approbation of both governments. This, however, was some seven months after the commissioner Calvo and Reyes had signed the agreements fixing the bases for the regulation and liquidation of the accounts; in the second of these agreements, dated April 13, 1869, is appears that Señor Calvo had been under instructions from his government as to what items should be allowed; while subsequent papers show that both commissioner in their settlement referred continually to their respective governments.

In the interpretation of this portion of the treaty, usage, as to the officials denominated commissioners, may, also, have a corroborative bearing. (“A clear usage is the best of all interpreters between nations.” Phillimore, vol. 2, p. 72.) Without going further than tie example of the United States, in its relations with other powers, it may be said that the resort to commissioners has been a frequent method of settling differencs as to boundaries, the determination of amounts of money to be paid, &c., as—(see the treaty with Great Britain of October 28, 1795, providing for the appointment of three sets of commissioners, whose awards, on the different subjects submitted to them, were to be final; the treaty of Ghent, February 17, 1815, appointing commissioners to decide boundary-lines, whose award was to be final; with Great Britain, January 10, 1823, to ascertain amount of indemnity to be paid for loss of slaves, under the decision of the Emperor of the Russias, the award of the commissioners to be final; the claims convention with Denmark, Jane 5, 1830, the treaty not specifying that the award should be final, but being so regarded; the claims convention with Mexico, April 7, 1840; the claims convention with Mexico, February 1, 1869; the boundary convention with Mexico, May 30, 1848; the award of the commissioners in all being final; the claims convention with Great Britain, July 26, 1853; with New Granada, November 5, 1860; with Costa Rica, November 9, 1861; with Ecuador, July 27, 1864; with Venezuela, April 17, 1867; and the celebrated treaty of Washington, June 17, 1871; all of these providing for the appointment of commissioners whose award was to be considered final.)

Reference may also be made to a claims convention between the United States and Peru, April 18, 1863; and one July 4, 1869; both providing for the appointment of commissioners whose award was to be considered final.

These examples, certainly, go far toward establishing a clear usage of submitting questions of difference to the decision of commissioners, whose decisions have always been accepted as final. In all the instances, save one, by a special article, however, which does not appear in the treaty of alliance of December 5, 1865. In the face of such precedent, and in consideration of the simple duties of the allied commissioners, as mere auditing officers, the omission cannot be material. (“The rule, that the influence and authority of usage in the interpretation of private covenants is such that customary clauses, though not expressed, are held to be contained therein, is, in its spirit, applicable to international covenants.” Phillmore, vol. 2, p. 77.)

The expression that the duties of the allied commissioners were expected to be simply those of an auditory and arithmetical character is legitimately inferable from the spirit of the treaty as a whole, and the failure to make any provision for the appointment of an umpire to decide cases of disagreement, while the omission to insert a reservation that their acts should be subject to the approval of both governments, shows that they were invested with full and final power to audit the indebtedness and specify the b; lance of money due from one to the other of the allies.

fourth.

As to he validity of the agreements made April 8th and 12th, 1869, by the commissioners, Calvo and Reyes, fixing the basis of liquidation; together with the partial adjustment, September 15, 1870.

From the foregoing consideration it must be clear that these acts of the commissioners must be considered valid, but with a most important reservation. It is a well-established principle of international law that after a treaty, possessing all of the elements of validity, has been formally executed, it can only be altered or amended before its proper expiration by the same authority, and under the same formality of procedure, as the original; and especially is it not permissible for either party to interpret its provisions according to his own fancy. In the discharge of their duties under Article fourth, the commissioners must, of necessity, keep themselves strictly within the scope of the treaty, in doing which their acts must be held binding on the allies; but in departing from which their acts are null to the precise extent of the departure. In the difficulties of settlement which presented themselves the commissioners, in a spirit of mutual concession, highly creditable to their desire for amity and fair dealing, saw fit to make certain arbitrary arrangements, as, for instance, that a certain class of expenses of particular vessels should begin at a certain time, and certain others at a certain other time; all of which, as being outside of the proper construction of the treaty, could only be made valid by a submission to and ratification by the principals. Hence, the partial liquidation by the commissioners of the date September 15, 1870, can only be held good far as it conforms itself to what is believed to be the true interpretation here laid cown.

fifth.

As to when the period of common expenses pertaining to the individual vessels of the alliance terminated.

The withdrawal of the Spanish forces from the contest without the execution of a formal treaty of peace, led the allies to the conclusion of a convention, fixing the 31st day of October, 1867, as a date whereupon the common expense account should cease. Hence, those vessels serving the allied cause continuously up to that date are to be considered upon the common expense, until it was reached; while those serving only a portion of the time could be so reckoned only to the cessation of their service.

sixth.

As to the division of the prize spoils.

Under this construction of the treaty, the allies derived no common benefit from the captures in the Atlantic by the iron-clads Huáscar and Independencia, because these vessels had not yet reached the Pacific, and hence could not belong to the allied fleet.

Neither did the Callao belong to the allied fleet when she captured the Guiding Star, and therefore the actual captors were alone entitled to the prize.

As regards the Thalaba, captured by the Covadonga, the capture must be considered joint. The allied fleet was at anchor in the bay of Valparaiso, and the Covadonga was dispatched by the commander to make the capture, which, although it did not occur within actual sight of the rest of the fleet, yet clearly falls within the general laws of prize entitling the whole squadron to joint participation, when a capture is made by one or more of its vessels, not upon a separate and datached service, and close enough to the squadron to be considered as but one of the outstretched arms of the latter. (Phillimore, 3d, 498.)

the decision of minor incidental questions.

The Paquette del Maule.—This vessel was a transport, and though chartered by one of the allies prior to December 5, 1865, the date of the treaty, she passed into service as a transport to the allied fleet, as near as can now be determined, about December 30, 1865. No evidence, at least, has been presented to the arbiter that she served the common cause prior to that date. As a transport to the combined fleet, the division of her expenses is legitimate, the transport service being absolutely necessary under the head of maintenance, as defined in the treaty. The documentary evidences are sufficiently copious to show that, when captured, she was on a service directly beneficial to one of the allies, with the full knowledge and, at least, tacit consent of its representative. No objection was made by him at the proper time, either to the terms or service of the vessel, and the right of objection is, therefore, lost. The expenses of the vessel, as well as her loss, are divisible by the allies from December 30, 1865.

Enlistments.—These cannot be considered divisible under the head of maintenance. The spirit of the treaty contemplates a contribution, by each nation, of certain efficient warlike elements. Ships unmanned cannot be so considered; and recruiting at the common expense was not provided for by the treaty. This item is thrown out of the liquidation, and each ally charged with his own expenses in this direction, so far as it has been possible to ascertain them.

Expense of repairing at Chiloé.—The note of Senor Galvez, dated December 4, 1865, promising to repay, immediately, the expense of repairing the four vessels sent to Chiloé, must be considered part of the treaty, by a rule before stated. Hence, the ally owning the ships must bear that expense exclusively. Had the account been presented, and default of payment occurred, interest could have been claimed upon the amount. Under the circumstances, it cannot be allowed.

Surplus supplies.—If a surplus of supplies was drawn by one of the allies, it was by the knowledge and act of the other, who, failing to object or protest at the proper time, has lost the remedy.

Wages of court-martialed officers.—When these left the service of the principal, (the allied fleet,) by their own act, they had no claim to recompense for services unrendered. The local law of one of the allies, allowing half-pay to court-martialed officers, cannot bind the other in the absence of a mutual agreement.

Difference of coin.—If one of the allies paid the salaries of the men of the other in a coin twenty-five per cent, more valuable than the home coin of the latter, it does not appear that the latter had any agency or direction in it; and, as being the act of the former, he cannot take advantage of his own wrong. The difference has not been allowed.

Voyage of a minister from one country to the other.—This had no connection contemplated by the treaty with “the maintenance of the allied squadron, or one or more of its ships,” and has not been allowed.

The Apurimac, after leaving the allied fleet.—This vessel was sent to Peru for repairs, which could not be made in Chili, with the knowledge and consent of both parties. Undei the plain provisions of the treaty a vessel was not compelled to be bodily present with 1 he allied fleet in order to constitute a part of it, the contingency of separation being expressly provided for; nor can any claim against her seaworthiness lie at this late day. She was accepted as an allied vessel by both parties, sent to Peru for repairs, and the objection now urged should have been made at the time. The failure to do this places the objectors in the position of taking an advantage after the fact. Her expense is computed as common to October 31, 1867.

The coal account.—The expenses of maintenance in the way of fuel is Common. No human I intelligence could have foreseen the exact amount of fuel to be required during an undetermined period and by an unknown number of consumers. The provision must be large enough to cover the contingency. As both parties incurred a joint expense in the amount purchased, both should share the profits of the residue. It is therefore so computed in this liquidation, the result being arrived at as accurately as circumstances have permitted. Coal consumed in the private use of one of the parties has been put to his exclusive account.

The matter of cannons received by one ally from the other.—This question, carrying with it a large claim, has received the serious attention of the arbiter, and, from a most careful perusal of the document from which he derives his powers, he can arrive at no other conclusion than that it is not within his faculties to decide the question. His whole authority is “to adjust the pending questions on which the Peruvian and Chilian commissioners are not agreed in the arrangement and liquidation of the accounts of the allied squadron, referred to by the pact of alliance of the 5th of December, 1865;” and further, “to decide all the rest which may exist, or which, in the course of judgment, may arise from the same accounts,” (i.e., the accounts of the allied squadron.) The transactions referred to had no connection with the allied squadron or its accounts, which were to be borne in common; but seem to the arbiter to involve a question of international ethics, easily arranged, with which, under his present authority, he cannot intervene nor pronounce a binding judgment, should he do so.

The General Lerzundi.—So far as this vessel is connected with the transaction of the cannon between the allies, the arbiter, as before stated, can give no valid judgment; but a s it plainly appears that she “was afterward sunk at the mouth of the Huito Channel by the common agreement of a council of war, composed of Chilian and Peruvian officers, in order to save the life of the squadron,” she certainly falls within the scrutiny of the arbiter, and strict equity would demand that her loss be imputed to the common account, which is accordingly done in this liquidation.

The Callao as a transport.—Though this vessel did not belong to the allied fleet, yet it has been conclusively shown that she performed important transport service to the fleet, and compensation as such, while actually engaged in the service, has been allowed in this liquidation.

C. A. LOGAN.