Mr. Hay to Sir Michael Herbert.

[Personal.]

My Dear Mr. Ambassador: I have received your personal note of the 31st ultimo, with inclosure, relating to certain claims of British subjects which have been brought to this Government’s attention from time to time and which arose out of the operations during the recent war with Spain.

The Department concurs in the expression contained in your note that “not the least of the calamities resulting from a state of war is the loss caused thereby to the subjects or citizens of neutral powers possessing property or engaged in business in the affected area.” The losses sustained by His Majesty’s subjects mentioned in the memorandum accompanying your note come within the category of cases above described, in which, as you say, “It often happens that the destruction of that property or damage to that business is a matter of military necessity to one of the belligerents.” And such destruction may sometimes be wantonly inflicted by insurgents, which, though equally [Page 483] deplorable, does not create liability on the part of the titular government in the cricumstances existing in connection with said claims.

These claims appear to the Department to be quite different in legal character from those which arose in behalf of American citizens expelled by the British authorities from South Africa and for which His Majesty’s Government graciously made compensation. However much I might be personally disposed to recommend a compensation in these cases as a matter of grace and favor, as is suggested in your note, I am persuaded that such recommendation to Congress would be fruitless, in view of the adverse reporta of the Senate Committee on Foreign Relations in the mentioned claim of William Hardman, and in view of the further fact that the Government of the United States would probably be reluctant to set a precedent for the making of compensation for the losses of property caused by the action of insurgents beyond the control of the military authorities of the United States and for whose action the latter was not morally culpable. Such a precedent, if set, would doubtless be followed by the presentation of numerous and other large claims for compensation for property destroyed by acts of insurgents.

The claim of Mr. J. Walter Higgin, now presented for the first time, is of the same essential legal character as those which have already been rejected by the Department.

I am, etc.,

John Hay.
  1. See Senate Report No. 224, Fifty-seventh Congress, first session, January 23, 1902.