Mr. Tower to Mr. Hay.

No. 157.]

Sir: Since writing my dispatch No. 152 to you on the 18th of November, I have had an opportunity, during a personal interview, to discuss further with the Count Mouravieff, imperial minister of foreign affairs, the protocol submitted to the Government of the United States by the Imperial Russian Government in relation to the mode of procedure to be adopted in the arbitration of the claims arising out of the seizure of the American vessels, James Hamilton Lewis, C. H. White, Kate and Anna, and Cape Horn Pigeon.

I recalled to the imperial minister the fact that the United States Government has intimated its willingness to accept the form of protocol submitted by Russia, with the introduction of a few minor changes which have been adopted by the Imperial Government without objection; [Page 863] but that, while the United States Government has expressed its preference to eliminate the clause which stipulates, as to the method in which the arbitrator shall arrive at his conclusions, by taking note of the rules on international laws, in addition thereto “il aura à se regler sur Pesprit des accords internationaux applicables à la matière,” the imperial ministry of foreign affairs has declared—in the note of the Count Lamsdorff, under date of the 5th (17th) of November, a copy of which I have already forwarded to you—that it finds itself obliged to insist upon the retention of that clause in the protocol.

I asked M. de Mouravieff to explain to me, in order that I might report it to you, what particular treaties or agreements this stipulation has reference to, and why it is considered to be of especial importance in connection with the subject-matter to which the arbitration relates.

He replied that it is the intention of the Russian Government to give the arbitrator in this controversy all the latitude possible, which shall be as fair to one side as to the other, in the admission of evidence and in coming to his decision; and that, in order to afford him this assistance, it is intended to allow him to take notice of the spirit and general tendency of international agreements applicable to the cases. He assured me that the Imperial Government has no purpose of relying upon the language of any particular agreement; and he gave me authority to say to you that he is ready to stipulate that no treaty or international agreement shall be presented in evidence before the arbitrator in order to prove any particular point of the argument, but merely to prove the spirit or general drift of international agreements applicable to the questions in dispute. He declared it to be his intention that the arbitrator alone shall be the judge as to the pertinence or applicability to the present litigation of such “spirit of international agreement.”

Since I asked you in my dispatch, No. 152, for your instructions as to my future conduct in this negotiation, I beg now to submit this statement of the Count Mouravieff in further explanation of the view taken by the Imperial Russian Government.

I have, etc.,

Charlemagne Tower.