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Category: 1887 : CHALLENGE N°7
The third "Deed of Gift"Following the problems caused by the false waterline length of Thistle and alarmed by the growing British threat, the New York Yacht Club has decided to amend the Deed of Gift. This will be the beginning of a period of controversy that might have put an end to this story.
This period began on Oct. 3d, 1887, when the New York Yacht Club voted to appoint a committee of five "to confer with George L. Schuyler on the subject of amending the deed of gift of the America's cup, and with full power and authority to execute in behalf of the club any and all papers and instruments necessary to effect any changes in such deed of gift and the acceptance thereof which may be mutually agreed upon between them and Mr. Schuyler."
The committee appointed consisted of Ex-Commodore James D. Smith, Philip Schuyler, Gouverneur Kortright, Latham A. Fish, and Gen. Charles J. Paine, with Commodore Elbridge T. Gerry acting ex officio.
These men were of such standing and character as to preclude any imputation of desire on their part to amend the deed to secure unfair advantages to their club, yet the language of the resolution by which they were given their authority to act unfortunately laid the club open to the charge of assuming powers not vested in trustees by common law or by custom, in proposing changes in an instrument defining the conditions of their trust.
The deed drawn by the committee was the first document conveying the cup to be couched in full legal form. The cup was formally returned by the yacht club to Mr. Schuyler, and under date of October 24th, 1887, it was conveyed by him to the club under the new deed, the text of which is given here :
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The most vital change from the two former deeds was in the arrangement, intent and effect of the mutual agreement clause. In the old deeds the clause providing for mutual agreement on all terms was the initial basis of a match ; in the new deed it could not be, for the prime condition as laid down in the document was that first, "the challenging club shall give ten months' notice [of challenge] in writing," and "accompanying the ten months' notice there must be sent the names of the owner, and a certificate of the name, rig and the following dimensions of the challenging vessel, namely : Length on load water-line, beam at load water-line, and extreme beam, and draught of water, which dimensions shall not be exceeded ; and a custom-house registry of the vessel must be sent as soon as possible." After the challenger had complied with this essential requirement, it was provided that he could make, by mutual agreement, certain arrangements as to dates, courses, etc., for the races ; but the provisions for these arrangements could in no way affect the initial basis of the negotiations, namely, the sending of precise information about the challenging vessel ten months before the match.
In addition to the important change noted, the new deed contained provisions that centre-board or sliding keel vessels should always be allowed to compete for the cup without restrictions ; that in the event of failure to agree on the number of races three should be sailed ; that time allowances should be abandoned ; that all races should be over ocean courses free from headlands, practicable in all parts for vessels of twenty-two feet draft.
As both the letter and the spirit of the deed were departed from before any match could be obtained under it, and as in practice it has been interpreted in such ways as to allow its original aims and conditions to become almost lost to view, it is proper to examine, so far as may be, into the causes and motives that led to its preparation.
First of all there was unquestionably a desire on the part of the committee to exact terms from a challenger which would make possible the leisurely building of a defending yacht from dimensions suggested by those of the challenging yacht. Volunteer was built in a hurry, and this circumstance was not forgotten.
The clause providing that centre-board vessels should always be permitted to challenge for the cup was also framed with an eye to the interests of the makers of the deed. The committee held the centre-board type to be superior to keel vessels, and it believed, in view of the Arrow incident, which had left a strong impression on the mind of at least one of its members, that no English club would willingly permit a centre-board yacht to sail for the cup in the event of the trophy going to England. It therefore determined to secure for itself the right to challenge with such a vessel if the need ever arose, by imposing in advance terms more satisfactory than English yachtsmen were expected to grant ; and no secret was made of its purpose.
It appears the committee, while having always in mind the interests of the New York Yacht Club as defender of the cup, never lost sight of the club's welfare should it ever find itself in the position of a challenger for the cup. The clause providing for the abandonment of the notoriously unfair and unfit inside course of the New York Yacht Club, and the sailing of all races on ocean courses free from headlands, with a mean depth of twenty-two feet, was excellent on its face, and had the additional merit, from the committee's viewpoint, of obviating racing in the Clyde, with its high headlands, or The Solent, with its sands and bars, in the event of the cup going abroad, and a deep-draft centre-board boat being sent after it.
However well-intentioned the members of the committee may have been in making these changes, they not only put themselves in the position of trustees adding conditions to a deed of trust, which in this case would enable them to better hold the cup, but they embodied in the instruments, it will be seen, conditions which aimed to make it obligatory on future winners of the cup to accept a challenge from the club on terms of its own making.
At this time, when the centre-board type of vessel has ceased to influence cup racing, the action of the New York Yacht Club in " putting an anchor to windward " for that type of vessel appears less important than it must have seemed to the club in 1887, and the statement, sometimes heard, that " the deed was drawn for the protection of challengers," has, until weighed, a suggestion of disingenuousness. Under the terms of the deed a challenger has the right, if he cares to consider it as such, of holding to all its conditions. On the other hand it now appears that any kind of arrangement can be made by "agreement” at the pleasure of the club holding the cup, if the challenger does not care to sail under the full terms of the deed, which all challengers have shown a decided aversion to doing.
That the deed proved unsatisfactory was unfortunate, as it seemed likely the changes in it were to be final, so far as its form was concerned, for with the demise of Mr. Schuyler, none of the original donors would be left.*
* George L. Schuyler died, from heart trouble, on board Commodore Elbridge T. Gerry's yacht Electra, in New London Harbor, on the night of July 31st, 1890. He was a grandson of Gen. Philip Schuyler, of Revolutionary fame, was born at Rhinebeck, on the Hudson, June 9th, 1811, and was a graduate of Columbia College. He was twice married, both his wives being granddaughters of Alexander Hamilton. Although interested in the business of steam navigation in Long Island Sound, and in the vicinity of New York, Mr. Schuyler devoted much time to the pleasures of outdoor life, and to literary research, writing some valuable works on the campaigns in the Revolution in which his grandfather had a part. His interest in yachting was unflagging, while his experience covered the history of the sport in America from its inception.
No instrument set up in the world of sport has ever received more general condemnation than this deed of gift. It has been assailed right and left, at home and abroad. English yachtsmen from the first argued that the Americans were hedging the cup about with so many conditions that no man could win it. They complained that the dimensions demanded with a challenge gave the challenged parties an idea of the challenging boat sufficiency definite to aid them materially in building a defender, and that ten months' notice was unreasonable.
The London Jueld, which represented extreme British opinion in matters pertaining to international yachting, imputed bad faith to the New York Yacht Club in changing the deed of gift, and it appears to have reflected the sentiment of many prominent English yachtsmen. The following comment was made by the Field, editorially, on the New York Yacht Club's contention that any club winning the cup should hold it subject to the full terms of the deed :
" To prevent any other club tinkering the conditions in a similar way, the club which may win the cup will have to covenant that the present unsportsmanlike conditions shall not be altered. Copies of the conditions have been sent to British and foreign yacht clubs, with a letter to the secretary very similar to the one issued thirty years ago. The letter, after recommending enthusiasm on the part of the contestants, winds up with the declaration that any races for the cup will be conducted on strictlv fair terms by the New York Yacht Club ; but if the club is to be the sole judge of ' fair terms,' we do not think they will inspire enthusiasm."
Forest and Stream, probably the most conservative and fairminded American journal treating the subject of yachting, and reflecting the best American sentiment in yachting matters, called the deed " An Act to Prevent Yacht Racing," and said of it :
" The charges were made against the club, and we still believe correctly, that in assuming the ownership of the America's cup and making new conditions to govern contests for it, the club acted illegally and unfairly, having no right to establish any conditions of its own, and having gone further in establishing very unfair ones. . . . The whole future of international racing was, and still is, in our opinion, centered in the question whether the America's cup as a perpetual challenge trophy for international competition is the common property of all existing yacht clubs, to be raced for on fair terms, or whether it is in effect the private property of the New York Yacht Club, the privilege of competing for it being accorded foreign clubs as a favor and not as a right."
This view has found frequent and forcible repetition since originally expressed by Forest and Stream.
So strong was the pressure exerted on the New York Yacht Club during the first assaults on the deed of gift, that after six months of deliberation the club placed itself on record as modifying the deed, by the following resolution, adopted in May, 1888, in response to an inquiry made by William York, secretary of the Royal London Yacht Club, asking for an interpretation of the terms of the deed:
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