WASHINGTON CITY, _February 12, 1861_.
_To the Senate of the United States_:
I herewith submit to the Senate, for their advice, the proceedings and
award of the commissioners under the convention between the United
States of America and the Republic of Paraguay, proclaimed by the
President on the 12th of March, 1860. It is decided by the award of
these commissioners that "the United States and Paraguay Navigation
Company have not proved or established any right to damages upon their
said claim against the Government of the Republic of Paraguay, and that
upon the proofs aforesaid the said Government is not responsible to the
said company in any damages or pecuniary compensation whatever in all
the premises."
The question arises, Had the commissioners authority under the
convention to make such an award, or were they not confined to the
assessment of damages which the company had sustained from the
Government of Paraguay?
Our relations with that Republic had for years been of a most
unsatisfactory character. They had been investigated by the preceding
and by the present Administration. The latter came to the conclusion
that both the interest and honor of the country required that our rights
against that Government for their attack on the _Water Witch_ and for
the injuries they had inflicted on this company should, if necessary, be
enforced. Accordingly, the President in his annual message of December,
1857, called the attention of Congress to the subject in the following
language:
A demand for these purposes will be made in a firm but conciliatory
spirit. This will the more probably be granted if the Executive shall
have authority to use other means in the event of a refusal. This is
accordingly recommended.
After due deliberation, Congress, on the 2d of June, 1858, authorized
the President "to adopt such measures and use such force as in his
judgment may be necessary and advisable" in the premises. A commissioner
was accordingly appointed and a force fitted out and dispatched to
Paraguay for the purpose, if necessary, of enforcing atonement for these
wrongs.
The expedition appeared in the waters of the La Plata and our
commissioner succeeded in concluding a treaty and convention embracing
both branches of our demand. The convention of indemnity was signed on
the 4th of February, 1859. The preamble of this convention refers to the
interruption for a time of the good understanding and harmony between
the two nations which has rendered that distant armament necessary.
By the first article the Government of Paraguay "binds itself for the
responsibility in favor of the United States and Paraguay Navigation
Company which may result from the decree of commissioners" to be
appointed in the manner provided by article 2. This was in accordance
with the instructions to our commissioner, who was told that an
indispensable preliminary to the negotiation would, "of course, be an
acknowledgment on the part of the Paraguayan Government of its liability
to the company." The first paragraph of this second article clearly
specifies the object of the convention. This was not to ascertain
whether the claim was just, to enforce which we had sent a fleet to
Paraguay, but to constitute a commission to "determine," not the
existence, but "the amount, of said reclamations." The final paragraph
provides that "the two commissioners named in the said manner shall meet
in the city of Washington to investigate, adjust, and _determine the
amount_ of the claims of the above-mentioned company upon sufficient
proofs of the charges and defenses of the contending parties." By the
fifth article the Government of Paraguay "binds itself to pay to the
Government of the United States of America, in the city of Assumption,
Paraguay, thirty days after presentation to the Government of the
Republic, the draft which that of the United States of America shall
issue for the amount for which the two commissioners concurring, or
by the umpire, shall declare it responsible to the said company."
The act of Congress of May 16, 1860, employs the same language that
is used in the convention, "to investigate, adjust, and determine the
amount" of the claims against Paraguay. Congress, not doubting that an
award would be made in favor of the company for some certain amount
of damages, in the sixth section of the act referred to provides that
the money paid out of the Treasury for the expenses of the commission
"shall be retained by the United States out of the money" (not any
money) "that may, pursuant to the terms of said convention, be received
from Paraguay."
After all this had been done, after we had fitted out a warlike
expedition in part to obtain satisfaction for this very claim, after
these solemn acts had been performed by the two Republics, the
commissioners have felt themselves competent to decide that they could
go behind the action of the legislative and executive branches of this
Government and determine that there was no justice in the original
claim. A commissioner of Paraguay might have been a proper person to
act merely in assessing the amount of damages when an arbiter had been
provided to decide between him and the commissioner on the part of the
United States, but to have authorized him to decide upon the original
justice of the claim against his own Government would have been a
novelty. The American commissioner is as pure and honest a man as
I have ever known, but I think he took a wrong view of his powers
under the convention.
The principle of the liability of Paraguay having been established by
the highest political acts of the United States and that Republic in
their sovereign capacity, the commissioners, who would seem to have
misapprehended their powers, have investigated and undertaken to decide
whether the Government of the United States was right or wrong in
the authority which they gave to make war if necessary to secure the
indemnity. Governments may be, and doubtless often have been, wrong
in going to war to enforce claims; but after this has been done, and
the inquiry which led to the reclamations has been acknowledged by the
Government that inflicted it, it does not appear to me to be competent
for commissioners authorized to ascertain the indemnity for the injury
to go behind their authority and decide upon the original merits of the
claim for which the war was made. If a commissioner were appointed under
a convention to ascertain the damage sustained by an American citizen in
consequence of the capture of a vessel admitted by the foreign
government to be illegal, and he should go behind the convention and
decide that the original capture was a lawful prize, it would certainly
be regarded as an extraordinary assumption of authority.
The present appears to me to be a case of this character, and for these
reasons I have deemed it advisable to submit the whole subject for the
consideration of the Senate.