The America's Cup belongs, in trust, to the Yacht Club that wins it, but there is an obligation for the Yacht Club to adhere to the Deed of Gift. In the 20th and 21st centuries, various Yacht Clubs changed the playing field, by "interpreting" and thus modifying the rules. This was been done on the excuse that the Club in question was simply clarifying what the Deed really meant, but the reality is that it was done simply to make it harder for the holder to lose it.
So, the legitimacy of most Interpretative Resolutions was dubious and, when Alinghi persuaded the current America's Cup holder - Societe Nautique de Geneve - to annul all past Trustee Interpretative Resolutions, it did the correct thing, both legally and morally.
To interpret the Deed of Gift, correctly, we need to go back in time and look at the motives behind it, starting with the background and character of the man who started the syndicate behind the yacht America.
Why competing Yacht Clubs, not people?
In 1851, Great Britain had an Empire and was, arguably, the world’s leading industrial nation. Many of those in its yachting fraternity were full of the more unpleasant traits that overwhelming superiority tends to bring out in people; they had contempt for “the lower orders” and, whilst enjoying the fruits of inventors and entrepreneurs, they did not consider them to be of the same calibre; “blood counts” was the thought of the day. Consequently, the Royal Yachts Squadron was made up of monarchs, peers of the realm and the like; the idea of admitting a merchant to the club would have been unthinkable, but entertaining a French count, or German prince would have been perfectly acceptable.
John Cox Stevens, founder of the syndicate that owned the yacht America, had been at the receiving end of the upper class British disdain for those in trade, when he visited Britain, for his father was an entrepreneur and inventor of steam engines and boats. The son followed in the father’s business footsteps, but was more of a socialite; his home, in lower Manhattan, was so luxurious that New York society referred to it as “Stevens’ Palace.” There is plenty of evidence to suggest that he, certainly, did not want to mix with the common people anymore than the British aristocracy did. For example, he followed and even patronised (sponsored we would say now) many sports, but would never attend a prize fight and, though he enjoyed the theatre, he abhorred the way some of his peers mixed with theatre folk socially. Though not an aristocrat, John Cox Steven’s lifestyle was aristocratic and ostentatious and he was a natural for the role of first Commodore of the New York Yacht Club, when it was founded aboard his yacht Gimcrack, in 1844.
The other founder members of the NYYC were John Cox Stevens’ peers, so we now can see the rationale behind the Deed of Gift requirement for competitors for the America’s Cup to be Yacht Clubs. Members of Yacht Clubs were “the right sort of people”, bankers, entrepreneurs, inventors and they had yachts for the love of yachting; it would have been unthinkable to have a situation where some jumped up shopkeeper might build a boat, hire a crew and take the syndicate’s Cup home.
Why foreign countries, not nations?
Use of the phrase “friendly competition between nations” was considered, by the syndicate, for it appears in an early hand written draft, but is crossed out and with “between foreign countries” inserted in its place. There has to be a reason for that change and to find it, we have to cast aside our views of the meaning of “nation”, as we perceive it today, and try to think as John Cox Stevens and his friends would have thought, given the attitudes that prevailed at that time. We also have to remember that it seems certain that the first Deed of Gift – unlike the 1887 Schuyler revision – appears to have been written without the benefit of lawyers; it is very much a simple expression of the wishes of a group of men, without thought for the strict legal meaning of the words used.
In those days, the word “nation”, had far greater ethnic connotations, in every day use, than it does today. Most 21st century nations are multicultural, in the mid 18 hundreds they were mainly monocultural. Slavery still existed when the deed of Gift was being drawn up and, in Bills of Sale, slaves were often described thus: “Male Billy, age about 25 years, of the Mandingo nation”; Indians were referred to as being of the Sioux, Idaho etc nation.
It is not just conceivable, but highly likely, that the substitution of “foreign countries” for “nations” was made, after the syndicate members had talked among themselves and decided just who they wanted to be able to compete for the Cup, then and in the foreseeable future. The answer has to have been “the right sort of person” and, in those days, that would have meant no blacks, no Indians and also no “white trash”, a common phrase at the time. It would have been seen as far better to use “foreign countries” to indicate the international nature of the competition and leave the Yacht Clubs to make sure the “wrong sort” didn’t get involved.
Why no nationality clause?
That is the easiest of all to explain, but, once again, we have to put aside our concept of yachting today and see it as it was then.
In the mid 18th century yachting was the sport of the immensely rich. Such people did not hoist sails, weigh anchors, navigate, or even helm – except for the very few - hired hands did that sort of thing!
The notion of a crew nationality rule would simply not have entered George Schuyler’s head, when he started drawing up the Deed of Gift; crew members were servants, you would know the name of your skipper, just as you knew the name of your butler; but as to the rest, the hands were as insignificant as your maids and you neither knew, nor cared, what they were called and, certainly not, what nationality they were. The only thing that mattered was that they were competent and didn’t cost more than they should.
Scotsman Charlie Barr is now an America’s Cup legend, but when, in 1899, he skippered the defender Columbia, which defeated Sir Thomas Lipton's Shamrock, in three straight races, Haarlem Yacht Club of the City of New York did not even acknowledge his role. As this resolution shows, the congratulations went to the owner, J. Pierpont Morgan and the syndicate manager C. Oliver Iselin!
The concept of a crew nationality rule would have been entirely alien to the syndicate’s way of thinking and to those of the syndicates that immediately followed. If, in 1980, the Australian syndicate had correctly argued the matter in court, they must surely have won the case and prevented a nationality rule ever being brought in.
Regardless of the legality of any nationality rule, what is certain is that it would be against the spirit of the Deed of Gift and that renders any sentiments of introduction, for reasons of “We must get back to the original Deed of Gift” hypocritical. There are, however, many – with no axes to grind - who feel that the atmosphere of “a friendly contest between nations” has been all but lost and call for nationality rules, as a way of bringing back that feeling of international contest.
There is another way to bring back that feeling of nations (in the modern sense of the word) competing and still honour the Deed of Gift, but before we get onto that we have to look a bit more into the motives behind the schooner America.
To be continued ……………