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the treatment of various British subjects, including all those in respect of whose treatment claims are now submitted to the Tribunal. In this note Mr. Hawes expresses the desire of the British Government to be acquainted with the cause of the arrest and of the treatment to which the men were subjected, and generally as to the rights and wrongs of the proceedings. Extracts from various sworn statements by the claimants accompanied Mr. Hawes' note.
Mr. Hatch acknowledged this note on the 28th August, 1895('3) but claimed that James Brown had been born in Honolulu and was, therefore, a Hawaiian citizen. A detailed statement was promised as to the other cases.
A voluminous answer to Mr. Hawes' note of the 26th August was transmitted by the Hawaiian Minister for Foreign Affairs on the 4th November, 1895("). Evidence in support of the Hawaiian action in respect of each person arrested was submitted, and a reasoned statement of a general nature prefaced such evidence. The affidavits and statements in respect of each claim are printed in the part of this Memorial dealing with the individual claims. The general portion of the note is printed among the annexes to this part of the Memorial . The note is divided into sections dealing with the history of the period antecedent to the outbreak, with the arrest, the detention and treatment of those who were imprisoned, and with the stipulations they entered into to Îeave the country. It consists in great part of statements of principle which His Majesty's Government do not contest. The point at issue is whether such principles apply to the cases of the men whose claims are now submitted.
After full consideration of the contents of Mr. Hatch's note by Her Majesty's Government, a reply was sent by Mr. Hawes to the Hawaiian Minister for Foreign Affairs on the 28th May 1896(')In this reply Her Majesty's Government maintained the view that the claimants were subjected to imprisonment under martial law under circumstances which showed martial law was not enforced in their cases for the suppression of insurrection, but was used as a means of punishing them by im prisonment and exile for having expressed views unfavourable to the
cost of ruin in business was, in the absence of circumstances which rendered such measures an act of self protection, a step of an unfriendly character justifying an expectation on the part of Her Majesty's Government that adequate compensation would be paid.
No formal answer to Mr. Hawes' note of the 28th May, 1896, was made by the Hawaiian Government until the 1st February, 1898, but in the interval unofficial conversations took place on the subject between Mr. Hawes and the Minister for Foreign Affairs, and the latter was put in touch with Mr. Neumann, counsel for the claimants. These conversations did not, however, result in a settlement of the claims.
In August 1897, Mr. Hawes, the British representative at Honolulu, died, and in due course Mr. Kenny was appointed acting consul-general in his place. Mr. Kenny continued the unofficial conversations, but as it became clear(16) that the Hawaiian Government would not pay compensation, he asked (!?) on the 17th January, 1898, for a formal reply to Mr. Hawes' note of the 28th May, 1896(18). On the 1st February, 1898, the Hawaiian Minister for Foreign Affairs sent a formal reply("") declining to pay compensation and repudiating the idea that the present claimants were subjected to punishment. Mr. Cooper added that the Hawaiian Government therefore saw no grounds for any liability to compensate them for either loss of time, injury to business or personal feelings during their confinement. The note stated that the same suggestion applied to those who were allowed to leave the country upon their own request, as evidenced by the signing of stipulations by them previous to leaving. It was firmly maintained that these stipulations were not executed under any pressure or apprehension other than the liability of the individuals to be tried by a competent tribunal for their alleged participation in the insurrection.
The British Government thereupon suggested the arbitration of the claims(*"), a suggestion which the Hawaiian Government declined on the 15th July, 1898(^.), on account of the imminence of the annexation of the Islands to the United States. In a personal note(**) sent five days later, Mr. Cooper explained that his Government felt that it had no authority to proceed further without
United States, but stated that, if Hawaii had continued as a sovereign State, the Government would undoubtedly have accepted the British proposal.
The admission of the Hawaiian Republic into the United States of America was effected by a treaty between the two countries, signed at Washington on the 16th June, 1897(). The treaty became operative after the adoption of a joint resolution of the Congress of the United States on the 7th July, 1898, and the Hag of the United States was officially raised at Honolulu on the 12th August of
The effect of the union of Hawaii with the United States was that thenceforward the British Government could not deal with the Hawaiian authorities directly, but only through the State Department at Washington. The treaty contained no provision for the assumption by the United States of responsibility for the payment of claims of this character, and presumably, therefore, the liability remained with the Hawaiian territory. This aspect of the question, however, is one with which a foreign Government is not concerned.
In September of that year the British Ambassador at Washington, under instructions from Lord Salisbury, addressed an enquiry to the State Department at Washington as to whether the United States Government would agree to the arbitration of these claims(*), but in reply Mr. Hay begged that during the transition stage in the condition of the Government of Hawaii, the British Government would refrain from pressing the claims.(25)
In May 1899, after further enquiries made by the British Ambassador at Washington at the instance of Lord Salisbury, Mr. Hay stated that a copy of the Ambassador's note had been sent to the Hawaiian Minister for Foreign Affairs with a request that a report on the claims should be drawn up.(26) The Hawaiian Government then printed and despatched to Washington the various notes and papers which had passed between the British representative at Honolulu and the Hawaiian Government and which form the earlier annexes to this
collected by the claimants, but which had not been given by Mr. Hawes to the Hawaiian Government. (*)
These further papers and evidence on behalf of the claimants were in due course transmitted by the Secretary of State at Washington to the Government at Honolulu, but no progress seemed to be made, and on the 14th August, 1900, Lord Pauncefote again approached the State Department, and expressed the hope that it might be possible to urge the Hawaiian authorities to fix a date for the examination and adjustment of these long pending claims. (*) The Acting Secretary of State sent a note in reply on the 11th September, 1900(*'), saying that the note had been forwarded to the Governor of the territory with an intimation that the Department would be pleased if a date could be fixed for the consideration and adjustment of the claims if they should prove to be well founded. On the 21st December, 1900, Lord Pauncefote communicated to the Foreign Office a document containing so much of a long report from the Governor of Hawaii as was relevant to the British claims. His Excellency had received the document in question in an official note from the State Department.(")
The portions of this long report dealing with the individual claims are printed in the part of this Memorial dealing with the individual claims. "The general portion is printed in Annex 34. Liability was denied by the Governor of Hawaii in all cases. In the main the arguments employed are similar to those contained in the earlier note(s) of the Hawaiian Government, and it was urged that by recognised principles of international law the complainants were not at that time entitled as a matter of right to diplomatic intervention by reason of their Hawaiian domicile, by reason of the fact that they had not exhausted their remedy before the Hawaiian tribunals and by reason of their participation in seditious and treasonable acts. The arguments in support of the second ground indicated appear to have been suppressed, as by the time the document reached Lord Pauncefote such arguments were only represented by a row of dots. With regard to the stipulation to leave the country signed by four of the claimants, the
to an admission of some degree of guilt, and that no valid ground had been suggested why the stipulations should not stand, that it was not claimed that they had been obtained by fraud or compulsion, and that in the absence of such showing the stipulation must stand.
The terms of this Report prompted the Secretary of State for Foreign Affairs once more to press for the arbitration of the claims, and Lord Pauncefote thereupon addressed a note to Mr. Hay on the 9th April, 1901, urging, the submission of the claims to arbitration accordingly. The Ambassador's note was transmitted to the Governor of Hawaii.(32)
In 1903 a scheme was before the Hawaiian legislature for the appointment of a commission to deal with the foreign claims against the Government of the Islands, but the Bill was rejected by the Hawaiian House of Representatives.(33)
In 1904 Mr. Hay put forward the suggestion for a comprehensive claims commission to deal with all the outstanding claims between Great Britain and the United States.(**) The negotiations resulting from this suggestion ultimately led to the conclusion of the Convention of the 18th August, 1910, establishing the Claims Commission, and the first schedule to this Convention comprised the Hawaiian claims now submitted to the Tribunal by His Britannie Majesty's Government.
His Britannic Majesty's Government claim that compensation should be awarded to the various claimants for the reason that no justification existed for the treatment to which they were subjected. They had not participated in the rising nor had they committed any act contrary to the laws in force in Hawaii or calculated to endanger the peace of the community. Their treatment cannot be justified either as punishment for crime or on the ground of the necessity of preserving order.