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were abrogated by the wrongful acts of President Lopez, The amounts of these latter sums are, from their nature, discretionary. The data to estimate them we place before the commission, and we respectfully submit that, judicially de. termined, the award would exceed the sum which the com. pany have always, and in every form, claimed as less than their real right-one million of dollars.
OPENING STATEMENT FOR PARAGUAY:
BY JAMES M. CARLISLE, ESQ.,
COUNSEL FOR THE REPUBLIC.
On the part of the Republic of Paraguay, the counsel does not propose to extend this opening statement beyond the exigency of the rule adopted by the commission in this behalf. Its scope is simply to indicate the grounds upon which he will rely in resisting the pretensions of the claimants, and which it will be his duty to support by proofs and arguments hereafter.
1. The counsel for the claimants assume, as a foregone conclusion, that wrong and injury, in the transactions upon which this claim is based, have been done by the Republic of Paraguay.
This is utterly denied. And it will be respectfully insisted that it will be for this honorable commission not to take for granted, but to require to be here proven and established, in fact and law, the allegation that, by reason of any matter or thing done or permitted by the Republic of Paraguay in the premises, any responsibility in damages to these claimants rests upon it.
This commission is organized under the law of nations, and the terms of a treaty or convention between sovereigns of equal dignity in the view of that code. The instructions given by one of these high contracting parties to its minister, its executive messages, the reports of committees, or other proceedings of its legislature, referred to in the opening
statement, can have no other weight or value than as exhib. iting, in an imposing form, the claim which is here made, and is here to be established or rejected. They are not even entitled to be regarded as the deliberate conclusions of the gov. ernment from whom they emanate, since they are founded exclusively upon the case as made ex parte, by those whose interests and feelings may have naturally colored their representations. By the solemn act of the United States, in entering into this convention, it is stipulated that this claim shall be here “investigated" and "adjusted,” AND “its amount determined," "upon sufficient proof of the charges and defences of the contending parties." (Convention, Art. II.)
II. As to any inducements held out by the Republic of Paraguay for the enterprise of the claimants, they are to be found in the general law of the Republic, an unofficial copy of which is now exhibited for information, and a duly authenticated transcript of which will be adduced in proof. It is denied that these claimants acquired any rights of patent or monopoly for ten years, or for a single moment, under that law, or in any manner whatever. If they had such rights, it will be perceived that the law prescribes the specific and appropriate evidence of them, upon the issuing of which alone could they be exercised or enjoyed. The production of this evidence is respectfully required.
As to the letter of Mr. Gelly, which the claimants rely on as giving a construction and application of this general law, it is admitted to be a genuine letter of that gentleman, his handwriting being recognised by the Paraguayan commissioner. But Mr. Gelly never was Secretary of State, nor did he ever hold any office under the government of Paraguay, except that of special commissioner to treat concerning boundaries between that Republic and the Empire of Brazil, upon which duty he was engaged at the date of that letter. The letter itself purports, upon the face of it, to be a mere private letter, bears date in the year 1848, and expressly refers Mr. Hopkins to the above-cited general law, as governing the whole subject of exclusive rights and patents, and informs him, in so many words, that it would "neither be just nor possible to make an exception" in his favor. But if that letter were all that it has been represented to be, it could have no effect to dispense with the requirements of the law, or to give it an authoritative construction,
III. It is denied that the agents of the company were expelled from the Republic, or that the business of the company was interrupted, or disturbed, or interfered with, otherwise than in due execution of the laws of the land, to which they had voluntarily subjected themselves, and from which they could not, upon any principle known to the law of nations, demand exemption. In this connection it will be the duty of the undersigned to exhibit the conduct of the general agent of the company in a light which would surely have been disapproved by the respectable gentlemen whose interests he so recklessly jeoparded by his bad faith and his absurd and arrogant pretensions. And it will appear in the evidence that the most extraordinary favors were extended to him, and through him to them, by President Lopez, until to have continued them longer would have been to disgrace that distinguished personage and the State of which he is the head. Connected with this point, it is proper that a remark should be made upon those passages of the opening statement which represent President Lopez as wielding the high powers of government for the infamous purposes of his own private traffic and gain. These are pure inventions of Mr. Hopkins. They are utterly denied. President Lopez is neither "merchant," nor "banker," nor "cigar maker." Honorable as those employments are in themselves, he has never exercised either of them, nor does he derive his revenues from any other sources than the abundant salary which the law an. nexes to his office, and from estates which he possesses and enjoys in like manner as other private proprietors. Bred to the law, the productions of his own pen, which the undersigned has had the advantage of seeing, show him to be an accomplished scholar and a man of enlightened and vigorous intellect; while the concurrent testimony of all who have had personal intercourse with him (among whom may be mentioned, as here present, the secretary of this board, while secretary of legation to that Republic) ascribes to him the essential characteristics of a high-toned and honorable gentleman. The history of his country, since he has been entrusted with its government, attests his ability and enlightened patriotism.
IV. If it shall be held by the honorable commission, that the Republic of Paraguay is liable in damages upon any of the heads which have been adverted to, it will be respectfully insisted that the amount of damage so actually sustained shall
be made out by clear and distinct proofs of values, and of all other facts entering into such computation. The undersigned totally dissents from the mode of ascertaining this result which is foreshadowed in the opening statement.
Without going into any argument, (which more properly belongs to a subsequent stage of the case,) he thinks it proper to say: First. That he will maintain that no prospective, conjectural, or speculative damages can be allowed in any form. Nor does his mind apprehend the distinction indicated orally by the learned counsel who read the opening statement between the demand for prospective profits, eo nomine, (which was disclaimed,) and the demand for a pecuniary satisfaction, which shall indemnify the claimant for not receiving those prospective profits, which, being
an indemnity, must of course equal those profits. Secondly. He wholly dissents from the mode proposed to ascertain the investments of the company, and he disputes the items of the account, (Exhibit A, with the statement,) one and all. He denies that the measure of damages is to be in any degree affected by the amount of those investments, as mere investments, made in the United States, the results of which never came within the territory of Paraguay. Still less can he admit that compensation is to be made for "intelligence," "enterprise,” (in the abstract) and “anxiety of mind generally.". As to expenses incurred in procuring justice through the intervention of the United States government, of course the vouchers of any such expenditure must exist, and will be produced, if that inquiry is to be entered upon.
Without going into particulars, it may be sufficient to say, by way of example, that the first and principal item of the paper A, ($90,031 05,) and the second in magnitude, ($24,819 72,) $114,850 77, are for a steamer which was wrecked, without any apparent combination between President Lopez and the elements, and which never reached Paraguay; and for her cargo, and that of another vessel, which never came within that jurisdiction.
Again, and for example also: it is not perceived how the Republic of Paraguay is to be held responsible for the difference between the par value of the bonds issued to raise the capital of the company and the minor sums which, with more or less faith in the speculation, people were willing to pay for them. Further: it is not perceived upon what principle it is that, in addition to this, the capital raised is to be assumed to have been borrowed by the company upon an agree