No. 4.
Mr. Fish
to Mr. Cushing.*
Washington, December 8, 1871.
Sir: The President having appointed you one of the Counsel of the United States in the matter submitted by the Treaty between this Government and Her Britannic Majesty, signed in this city on the 8th day of May last, to the Tribunal of Arbitration to meet in Geneva, and the [Page 415] appointment having been accepted, it becomes necessary to give you, briefly, the President’s instructions on the subject of your duties.
The Case of the United States has been prepared, under the general supervision of the Secretary of State, by Mr. J. C. Bancroft Davis, Assistant Secretary of State, who has been appointed to attend the Tribunal as the Agent of the United States to represent this Government, generally, in all matters connected with the Arbitration.
It is accompanied by seven volumes, which contain the Evidence, Documents, and Correspondence on which the United States rely. Copies of the Case, and of the accompanying volumes, have been transmitted to you. Mr. Davis sailed for “Europe some time since, and intelligence of his arrival in France has been received. He is instructed to be at Geneva on or before the 16th day of December instant, and there to deliver the Case and documents in duplicate, as required by the Treaty. It is expected that he will then receive the official copies of the British Case, &c. And it will be his duty to confer with the Counsel of the United States as soon thereafter as they may be ready, with a view to the preparation of the Counter Case required by the Treaty.
It is also expected that the Counsel shall be in Europe as soon as their convenience will permit. They will arrange among themselves, and with Mr. Davis, as to the most convenient place for their meetings and consultations. In the absence and in anticipation of an agreement as to such place of meeting, it is thought desirable that your first meeting be in Geneva, at as early a day after your arrival in Europe as shall be convenient; you can then agree with Mr. Davis as to the time and place of your future meetings.
The Case contains the general views of this Government on the subjects likely to be discussed at Geneva, so far as the facts are now known. Should it become necessary to deviate materially from the positions there taken, you will refer to this Department. Mr. Davis has a copy of the cipher of the Department; in case you find it necessary to communicate secretly, he.will enable you to avail of the cipher.
Mr. Davis is fully instructed on the views which the President takes of the political questions that may be involved in thje discussion of the subject as it now stands. Should the political questions involved in the case assume any different aspect, on the presentation of the Case of the British Government, or in the progress of the case before the Tribunal, they will be referred to this Department for submission to the President, and for his further instructions.
The presentation and the management of the legal argument, and the treatment of the questions of law and evidence, are committed to the discretion and judgment of yourself and your associate Counsel. The President thinks that in this branch of your duty you may find Mr. Davis’s familiarity with the history of the Case of advantage, and that a free interchange of opinion and of views, and consultations with him, may be of benefit.
Mr. Davis is instructed to correspond frequently with this Department. You are invited to communicate with the Department as freely, and fully, and frequently as you may find it convenient. It is scarcely necessary to say that you are expected not to correspond (except for the purpose of obtaining information pertinent to the case) on the subject of the Case other than with this Department.
The instructions regarding the Counter Case also apply to the Argument.
The President desires to have the subject discussed as one between [Page 416] the two Governments; and he directs me to urge upon you strongly to secure, if possible, the award of a sum in gross.
In the discussion of this question and in the treatment of the entire Case, you will be careful not to commit the Government as to the disposition of what may be awarded, or what may be recovered in the event of the appointment of the board of assessors mentioned in the tenth article of the Treaty. It is possible that there may be duplicate claims for some of the property alleged to have been captured or destroyed, as in the cases of insurers and insured.
The Government wishes to hold itself free to decide as to the rights and claims of insurers, upon the termination of the case. If the value of the property captured or destroyed be recovered in the name of the Government, the distribution of the amount recovered will be made by this Government, without committal as to the mode of distribution. It is expected that all such committal be avoided in the argument of Counsel.
You are aware that Congress has made no appropriation for the expenses of the Arbitration. The President has invited the action of Congress on the subject, and you have been advised that he would recommend your compensation to be fixed at ten thousand dollars, (coin,) and your expenses suited to the important position you occupy.
In anticipation of the appropriation, you will receive herewith a check upon Eiggs & Co., of this city, for twenty-five hundred dollars, payable in gold coin, for which you will please return a receipt.
Each of the Counsel will probably need the services of a clerk. In the appropriation which will be asked of Congress, an estimate will be included for the compensation of a clerk to each of the Counsel, at the rate of three thousand dollars per annum. It will depend on the granting by Congress of the aggregate amount asked whether this allowance can be made.
I transmit herewith a special Passport for yourself and such of your family or suite as may accompany you,
You will be pleased to advise me of the time when you contemplate to leave the country to enter upon the duties of your appointment, and also to inform the Department of your arrival in Europe and at Geneva, and keep it advised of your address from time to time, as you may remove from place to place, so that immediate communication may be had with you at all times, by telegraph or by mail.
A copy of these instructions will be furnished to Mr. Davis, and I inclose herewith a copy of the letter to him in which they are inclosed.
I have, &c.,