Mr. Tower to Mr. Hay.

No. 230.]

Sir: In supplement to my dispatch No. 214, of the 14th of April, in regard to the wording of the protocol proposed for the arbitration of the whaling and sealing claims made by the Government of the United States against the Government of Russia, I have the honor to inform you that, as the result of considerable further negotiation by means of which the intention of both high contracting powers to seek merely the ends of justice and equity through such an arbitration has made itself perfectly clear, the gratifying decision has been reached by the Imperial Government that it will consent to modify the phrase, “The arbitrator shall be governed by the general principles of international law and by international agreements applicable to the subject,” by adding to it the following passage:

It is understood and agreed that this stipulation shall have no retroactive force, and that the arbitrator shall apply to the cases now in litigation the principles of international law and of international agreements which were in force and binding upon the parties to this litigation at the moment when the seizures aforementioned took place.

I inclose to you herewith a copy of the note which I addressed upon this subject to the Imperial minister of foreign affairs upon the 4th of April and a copy and translation of his reply to it, dated the 17th [Page 873] (30th) of May, in which he announces the readiness of the Russian Government to modify the phrase to which objection has been made hitherto.

I have promised the Imperial minister to submit to you this announcement and to inform him immediately upon the receipt of instructions from you as to its acceptance by the Government of the United States.

I have the gratification to believe that with the modification thus proposed the language of the protocol will now be acceptable to both Governments, and that the more serious questions relating to the litigation may be taken up in due course.

I have, etc.,

Charlemagne Tower.
[Inclosure 1.]

Mr. Tower to Count Mouravieff.

Excellency: I beg leave to acknowledge the receipt of your excellency’s note, No. 1652, of the 22d of March (4th of April) in reply to one which I had the honor to address to your excellency on the 16/29th March, relating to the wording of the protocol proposed for the arbitration of the cases which have arisen out of the seizure of certain American vessels.

I hasten to express to your excellency the gratification which I feel in being able, both from the statements contained in this esteemed note and from the tenor of the personal interviews which I have recently been privileged to have with your excellency, to confirm-my belief that the Imperial Government and the Government of-the United States are substantially in accord in regard to submitting the cases in question to the judgment of an arbitrator who shall be satisfactory to both high contracting powers.

As I have already had the honor to inform your excellency, the United States Government is prepared to accept the conditions in the protocol suggested by the Imperial Russian Government, except that it wishes for a more definite statement as to the exact meaning of the phrase, “and the spirit of international agreements applicable to the subject.”

The United States Government is not averse to the retention in the protocol of this phrase, provided, as I have heretofore had the advantage of explaining to your excellency, the intention of this language can be clearly defined, and that it may be understood to mean such international agreements and such rules of international law as may, by a just and fair interpretation, be found to be applicable to the subject.

As I have the personal assurance of your excellency that the purpose of the Imperial Government is no other than this, it is quite evident that the only difference still remaining between the two high contracting powers in this connection is one of expression and not of meaning, and that neither of the powers has the intention of applying either the principles of international law or the spirit of international agreements in a retroactive sense so as to make them relate to the questions now to be considered by the arbitrator, unless they were actually in existence and binding upon the parties in interest at the time when the seizures of the American vessels respectively took place.

This being the fact, it seems that there ought to be no difficulty in reaching an accord upon the subject. For that purpose, therefore, and with the earnest desire of forwarding the interests of all parties concerned in this litigation, I have the honor to request your excellency that you will authorize me to report officially to the Government of the United States in regard to the provision suggested in the protocol—“the general principles of international law and the spirit of international agreements applicable to the subject”—the following statement: “It is understood and agreed that this stipulation shall have no retroactive force and that the arbitrator shall apply to the cases now in litigation the principles of international law and the spirit of such international agreements only as were in force and binding upon the parties hereto at the moment when the seizures in question took place.”

If your excellency will favor me with this statement I shall not fail to communicate it forwith to the Government of the United States for its approval and acceptance.

I avail, etc.,

Charlemagne Tower.
[Page 874]
[Inclosure 2.—Translation.]

Count Mouravieff to Mr. Tower.

No. 2614.]

Monsieur l’Ambassadeur: Having had the honor to receive your excellency’s note of the 3d (16th) of April, I hasten to inform you that the Imperial Government, as a proof of its desire to arrive at an understanding in regard to the wording of the protocol in the arbitration of the cases relating to American vessels, is disposed to admit in the text of the protocol, in conformity with the wish expressed in the abovementioned note, the following phrase: “It is understood and agreed that this stipulation shall have no retroactive force, and that the arbitrator shall apply to the cases now in litigation the principles of international law and of international agreements which were in force and binding upon the parties to this litigation at the moment when the seizures aforementioned took place.”

This phrase is to follow the passage which reads: “The general principles of international law and the spirit of international agreements applicable to the subject.”

I beg you to accept, etc.,

Count Mouravieff.