Mr. Hay to Mr. Tower.

No. 131.]

Sir: I have to acknowledge the receipt of your No. 192, of the 28th ultimo, relative to the modification of the protocol for the arbitration of the whaling and sealing claims against Russia.

The action of the Russian Government in indicating its willingness to adopt the principle of arbitration for the settlement of the claim growing out of the seizure of American sealing and whaling vessels was peculiarly gratifying to the Government of the United States. It was regarded as one of the most auspicious steps recently taken in the interest of peace and justice among nations, both on account of its importance as a precedent and because it gave fresh evidence of the sentiment of mutual friendship which has ever happily characterized the relations of the two countries, and it inspires in the Government of the United States its entire confidence in reaching a satisfactory and reasonable basis of arbitration equally just and honorable to the contracting parties. It is of the essence of law, which is ordained to establish justice in governing the relation of individuals as well as of State, that it should consist of positive and certain rules by which they may regulate their conduct. It therefore follows that a law should be enacted to operate in futuro, so that those who are to be affected by it may have cognizance of it and govern their actions accordingly. To enact a rule and give it at the same time a retroactive operation is inconsistent with the most rudimentary ideas of justice, inasmuch as those who are most loyal and law abiding might thereby be subjected to penalties and losses for their very observance of the laws by which their conduct was scrupulously regulated and in the protection of which they confided. Such conception of law is impossible, because obedience to it was impossible; it is the abnegation of law and therefore of justice. At the time of the seizure complained of the vessels were subject to and governed by certain defined and well-known rules of law. It never entered into the minds of the parties that their conduct could be judged by any vague and indefinable “spirit of international agreement bearing upon the subject” which was nonexistent or was so vague and indefinable that it could afford no criterion of human conduct. The phrase is objectionable from a judicial standpoint for the reason that its meaning lacks definition. It seems difficult or entirely impracticable to understand its precise meaning as a criterion of human action and judgment. If it were adopted, the arbitrator in forming his decision would be compelled to give to the spirit substance by the formulation of a rule of conduct that would first come to the knowledge of the parties when announced by the arbitrator—a rule which, if differing from the positive law in force and governing the vessels when they were seized, could not be accepted as intrinsically just, and which, if accordant with any such positive law, it is unnecessary and superfluous to embody in the agreement.

The Government of the United States regrets its inability to assent to the incorporation in the agreement of the proposed phrase, unless it is defined and reduced to terms which will express a conception of some definite and tangible rule. If the phrase has any useful function this should be possible, inasmuch as the law of human conduct does not reside in mysteries and metaphors, but is capable of expression in [Page 866] clear and precise terms. The spirit of law could not be said to exist independently of the law itself. A rule of law, where its meaning is in doubt, may be interpreted strictly or liberally, in accordance with the general intendment or spirit of the law. But this supposed intendment or spirit is resorted to never for the establishment of a positive rule of law, but sometimes as a supposed aid in interpreting such law already in force. The positive rules governing the action of the parties when the seizures were made should be the rules governing the decision of the controversy. They are found in the common law of nations, which itself affords complete canons for its own interpretation.

The Government of the United States confides in the just disposition of the Government of His Imperial Majesty; and as it would not expect the latter to enter into an agreement having the effect to bind its subjects to abide by any real or imaginary rules of conduct found in the treaties or in the spirit of treaties of the United States with foreign States, or even in its treaties with Russia, except so far as the latter were in force at the time when the controversy arose, it cherishes the belief that His Majesty’s Government will not unwillingly accord to the citizens of the United States the same measure of justice which itself would reasonably expect for its own subjects.

If the Russian Government, after the matter has been presented in this light by you, is inflexible in its adherence to the phrase, you may suggest that the Government of the United States will assent to its inclusion on condition that the following language, in substance, be added, to wit:

But in rendering his decision the arbitrator shall be governed by the law actually in force and binding upon the parties to the controversy at the time when the seizures were respectively made.

You will represent the matter in this sense to the Imperial minister for foreign affairs, and you are at liberty, in the exercise of your discretion, if requested to do so, to furnish him a copy of this instruction.

I am, etc.,

John Hay.