In our earlier article, "Deed of Gift", we told how the Deed of 1887 was met with outrage by the yachting public and press on both sides of the Atlantic. Later, W.M. Lawson was to describe it as "a mixture of bad sportsmansip, bad law and bad English, made in a hurry by a little clique and never ratified by the New York Yacht Club." At the time it was first published lawyers said that neither it, nor its predecessor had any legal standing, because they had not been signed by any of the other owners' heirs, and there were public calls for the NYYC to tear up the second and third Deeds and go back to the first Deed, "the only one signed by all owners of the yacht America".
What if that were untrue? What if they did not all sign that first Deed?
America's Cup historians have written a great deal about the origins of the America's Cup Deed of Gift and, in the process, George L. Schuyler has been elevated to something close to the yachting equivalent of sainthood and his Deed of Gift has become a near sacred document. Only last month, John "Chink" Longley - a crew member on five Alan Bond campaigns - was inducted into the America's Cup Hall of Fame and ended his speech with a quote from Laurent Esquier, in reference to the author of the Deed of Gift: "The spirit of George Schuyler will prevail, and the Cup will be alright."
Will the Cup be alright?
There are plenty of question marks hanging over the George L. Schuyler Trust. We can start with the fact that, according to official records, it is listed as being set up inter vivos, but in 1857 charitable trusts were not legal in New York. It was only after the Tilden Act was passed, in 1893, that it became legally possible to set up such a trust and Schuyler had been dead for three years by then.
There are plenty of other anomalies, plenty of reasons to question the jurisdiction of the New York Supreme Court, but the biggest question of all is this:
Where is the first Deed of Gift, signed by John Cox Stevens, Edwin Augustus Stevens, John Beekman Finlay, Hamilton Wilkes and George Schuyler?
The October 1st 1851 dinner, organised at Astor House by the New York Yacht Club, in honour of John Cox Stevens was a time for celebration. The Queen's Cup (as it was then called) was proudly displayed on the table and, when the speeches of congratulations were over, the talk turned to what was to become of the trophy. It was idle, good humoured chat; should it become a NYYC trophy, or would it be better to melt it down and cast commemorative medals.
George Schuyler took the idea of the Cup becoming a trophy very seriously. He drafted some proposed terms for a competition and met with the other owners, some time after that dinner. Some changes were suggested and the other owners said they would meet Schuyler again after he had amended his original draft.
It wasn't until the following spring that the meeting took place and, this time, only two owners were present, John Beekman Finlay and George Schulyer. Hamilton Wilkes was dying in Pau, France, but his attorney William Laight attended and all three signed a letter to the NYYC, gifting the Cup on terms agreed among themselves. The letter was then sent to John Cox Stevens for him and his brother, Edwin, to sign, but did they? If they did, where is it?
In fact, any talk of a future America's Cup competition seems to have faded from the New York yachting scene until a few weeks after John Cox Stevens had died, on June 13, 1857. Then George Schuyler got out an unsigned copy of his 1852 letter, made a few alterations and sent it to the New York Yacht Club. It seems the lack of signatures was viewed with a blind eye, on the grounds that this what everyone had intended.
The Cup was duly accepted, despite the fact that the evidence - or absence of evidence - suggests that two of the Cup's owners had never, formally, agreed to gift it and, of the other two, Hamilton Wilkes was dead and there is no indication that Jack Finlay was ever asked to approve Schuyler's final version, nor that Wilkes' heirs were consulted.
The above story is, we believe, as close as one can get to the reality of what happened, over 150 years ago. It is hard to understand what Schuyler hoped to achieve by making a gift that he had no legal right to make. One can only imagine that notions of legally binding deeds and trusts were far from anyone's minds and Schuyler saw his act as simply a gentlemanly gift between sportsman. What seems certain is that, in 1857, the public and even the vast majority of New York Yacht Club members had no idea that the letter giving the Cup to the club might not have any legal standing.
If our scenario is correct, and unless someone can produce a signed copy of the first Deed of Gift we believe it is, the America's Cup was never owned by the New York Yacht Club, so cannot be owned by the current trustee. The rightful owners must be among the numerous living descendants of the five owners of the yacht America.