ing parties, captured 'jure belli' by the cruisers of any third nation, were to be protected and defended, while they continued to be within the territories of the other; but the captor might leave the territory to which he had resorted whenever he thought fit, taking with him his prize, even before its condemnation anywhere. And if this was condemned by any competent tribunal before it left such territory, it thereupon ceased to belong to its former owner, whose rights being extinguished by such condemnation, the 'casus fœderis' then ceased to exist, and the obligation to apply. This interpretation of the Treaty of 1795 induced the Commission to reject all cases of French captures, where the prize was carried within the Spanish territory, in which there existed regular French condemnations, by competent tribunals, within the French territory, and where no act was done or suffered by Spain prior to such condemnation, contrary to her obligation to protect and defend the property while it continued American once within her jurisdiction. There remained, however, a large number of claims of the description referred to above, in which no French condemnations were produced, and to which the rule last mentioned would not apply. The greater part of these grew out of voyages undertaken by citizens of the U. S., to or from the ports of Hispaniola, then commonly designated as Brigand ports. As to such of these as were undertaken after the commencement of the act of Congress passed on the 28th of February 1806, suspending the commercial intercourse between the U. S. and these ports, the Commission could feel no hesitation. It has never considered itself bound to regard those as citizens of the U. S., intended to be protected by any part of this Treaty, who engaged in a commerce forbidden by the laws of their own country, or who sought to shroud their true character or pursuits by any false and fraudulent covering whatsoever. This rule of exclusion, however, the undersigned are pleased to be able to state, has not applied to many of the cases before them. Another rule, furnished by this Treaty itself, has been held to exclude all the other claims which grew out of voyages to the ports of Hispaniola, closed by the French arrêtés of the 22nd of June and 9th of October 1802 and March 1st, 1804, which voyages commenced after a notice of those arrêtés was had in the ports of the United States. The Commission, considering the ancient state of things as remaining unaltered, and the sovereign power of France over her colony of Hispaniola as still subsisting, at the time these and other decrees were uttered by that sovereignty, which forbid all trade with the ports described, felt itself bound to regard all such voyages (to or from these prohibited ports) illegal as against France. France undeniedly possessed the legitimate right of enforcing her own laws, so far as they related to her own dominions, and none could claim the privilege of violating them. Whatever may have been the loss imposed, therefore, upon an American citizen, for his actual or intended violation of these known laws, he has no just cause of complaint against the power he meant to offend; nor would his own state properly aid or in any way support the cause of such of its guilty citizens, by reclamation against the sovereign offended by his misdeed. And if for these reasons the sufferer or his government had no just cause of complaint against France, the actual author of the loss, it would be difficult to show how Spain could be held accountable therefor by either. Nay, the 14th article of this Treaty itself seemed to the Commission conclusive upon this point. Why should Spain thereby require to have, and the U. S. agree to present to her, an authentic statement of the claims provided for by this Treaty for the injuries they suf fered from France, that Spain may avail herself of the same, if, as the argument supposes, France had done no injury and was not accountable to any for that which her cruisers had done in this respect? "These principles, altho' they operated to the exclusion of most of the cases embraced within the description above referred to, did not apply to all the claims on account of prizes made by French privateers, which were said to have been carried and disposed of within the territory and jurisdiction of Spain, without any condemnation. Other cases remained of fair and proper voyages, forbidden by no law whatever, and growing out of an open and perfectly innocent trade. For the protection and defense of such, Spain was bound unquestionably to exert all the means in her power while within the extent of her jurisdiction. And wheresoever any sale, or other improper disposition of prizes of this description, has been proved to be made within the Spanish territory, to the injury of the right owner, being a citizen of the U. S., and within the knowledge of any proper officer of the Spanish Government, the Commission has held Spain liable, and therefore allowed the claim. In order to fix such liability upon any sure and reasonable basis, however, the board has considered it right to require of the claimants in all cases, that the transaction complained of was made known to some proper officer of the Spanish Government, and its interposition required, except where the occurrence was one so open and flagrant as to furnish evidence in itself that it must have been known to and approved by the Spanish Government of the place. “În adjusting the amount of the claims allowed, the Commission has adopted these principles. Regarding the fund provided by the Treaty as designed to indemnify claimants for actual losses sustained, and not to realize profits which might or might not have been made, the board has generally taken up the voyage at its commencement, and allowed the value of the vessel and cargo at that time. To the value of the vessel, two-thirds of a fair freight for the passage in which the loss occurred has been added. A fair premium of Insurance for the risk of such a passage has been also added to each of these insurable subjects. And the costs and expenses, incurred in defraying their rights, have been allowed to all claimants who have paid such, and have offered any evidence from which the sums so paid might be inferred. Such has been the general mode of estimating the quantum of loss to be indemnified, in most of the cases where the loss has been total. In those where the loss has been partial, and in a few where the loss has been total, to which the rules now stated could not apply, different principles of adjustment analogous to these have been resorted to, the board taking care to modify these principles to suit the facts existing in each particular case. Thus a reasonable charter has sometimes been given in lieu of freight strictly so-called, where the precise voyage was not fixed. And a fair demurrage has been applied as the standard of damage produced by the illegal detention of a vessel. And here the undersigned feel it their duty to state that more than one moiety of the amount of all the claims allowed, and a larger proportion of those rejected, have been preferred by underwriters. As the loss by them complained of resulted directly and immediately from their own contract, and was to be traced to the illegal acts of others only remotely through that contract; and as, for entering into this contract, they had received a valuable consideration, in the premium paid for taking upon themselves the very risk which had produced their loss, the Commission at a very early stage of their proceeding decided that no underwriter as such had any claim upon this fund provided by the Treaty. The claims of American citizens, therefore, who came before the board claiming for the losses they had sustained by insuring the property of foreigners, which had been illegally taken by France or Spain, were never received. And it was only when the American citizen, who had sustained a loss provided for by the Treaty, having been indemnified against this loss by an American underwriter, had abandoned, or was bound to abandon and assign his interest in the subject insured to the assurer, that the claims of under writers have ever been received. But, claiming as assignees of a party who had a good claim, these their derivative claims have always been allowed for the sum by them insured and paid, where that sum did not exceed the true value of the subject insured, according to the principles settled by the board, for ascertaining this value, as above stated. "In making such allowances to underwriters, the Commission was well aware that its effect would be to allow them more than they had lost, by the amount of the premium received from the party insured, which premium he had voluntarily paid and must have lost in any event. So, too, in making the allowance of freight, the Commission was well aware that the full wages of seamen had not been paid, probably, in any of the cases where such freight was given. But, in these and many other cases which occurred, the board, having ascertained the full amount of the loss, distributed this amount so ascertained amongst the different parties claiming it before them, and seeming to have a right to receive it (no matter in what character), without deciding, or believing itself possessed of the authority to decide, upon the merits of conflicting claims to the same subject. To whom of right the sum thus awarded when paid may belong, or for whom, how, or in what degree, the receiver ought to be regarded as a Trustee of the sum received, were questions depending upon the municipal laws of the different States of the Union, the application of which to the facts existing in any case the board did not feel itself authorized to make, and therefore abstained from instituting any enquiry as to the facts necessary to such a decision. These remarks the Commission think it proper thus to make, lest their award may be considered as barring and finally settling pretensions into which this board have in truth neither made, nor believe itself authorized to make, any examination whatever; but have purposely left open, for the adjudication of others, who will have better means of ascertaining the facts. "Having thus stated the general principles which the Commission has thought it right to adopt and to apply, in receiving, examining, and deciding upon the amount and validity of all the claims that have been exhibited before it, the undersigned, with a view of showing what these claims were, have caused to be subjoined sundry schedules. The first of these, marked A, exhibits a list of all the memorials which have ever been presented to the Commission, except those which merely asked for reexamination. In this list the memorials are numbered progressively from 1 to 1859, in the order in which they were presented. It contains the name of the memorialist and the name of the vessel referred to (when such is the case), and designates which of these memorials the Commission refused to receive for examination, for the reasons herein before stated. "The second schedule, marked B, exhibits a list of all the memorials aforesaid which were received and examined. In this list these memorials are distinguished by the numbers annexed to them in the schedule A, and are arranged under the names of the different vessels to which they refer, where they do so refer, and by that of the memorialists where no particular reference is made to any vessel. In this list are also designated all those memorials which the Commission refused to allow as valid, for some of the reasons herein before stated. "The third schedule, marked C, exhibits a statement of the several sums allowed for the loss sustained in each of the cases mentioned in the schedule B, and therein not noted as having been disallowed, together with the aggregate amount of all these several allowances, viz: the sum of $5,454,545.13, and likewise the different memorialists to whom that sum has been awarded and distributed. "And the fourth schedule, marked D, exhibits a list of the sums allowed in schedule C, distributed amongst the different parties in interest, or their proper representatives, according to their different claims. These sums of course correspond in their amount with those stated in the preceding schedule; and this schedule, marked D, the Commission exhibits as its final award, in which is ascertained the full amount and validity of all the claims exhibited to it, for which Spain was liable to citizens of the U. S., and to which the renunciations contained in the Treaty of 1819 extend. "In order to enable the U. S. to comply completely with the provisions of the 14th Article of this Treaty, and to present to Spain an authentic statement of the prizes made from citizens of the U. S. by French privateers, for which injuries Spain was regarded by the Commission as having been liable, the undersigned have annexed hereto a fifth schedule, marked E (extracted from that marked C), in which is contained a list of all the vessels of the U. S. captured by French privateers, for which any allowance has been made by this board, and of the true value so allowed. For the particulars of such captures, the Commission begs leave to refer to the vouchers and documents produced before the Commissioners, relative to the claims on this account. These vouchers and documents, together with the records of their proceedings, the undersigned Commissioners have directed their Secretary to deposit in the Department of State of the U.S. in pursuance of the provisions of the 11th Article of the Treaty aforesaid. "The undersigned will add nothing further than to say, that as the full amount of the sums allowed to the different claimants is $5,454,545. 13, while the Treaty limits the extent of the liability of the U. S. 'to an amount not exceeding five millions of dollars,' the Commission found it necessary to abate each claim allowed 'pro rata.' This ratable abatement of each claim according to its amount equals 8 per cent. So that the claimants, instead of receiving the full amount of their respective claims as allowed, will be entitled to receive only the balance, after this per centage is deducted. The schedule D will show the full amount of the claim allowed, the amount after the abatement, being the balance due the claimants, which is the sum awarded by this board to them respectively. This schedule D is in addition to the documents the Commission have believed it to be their duty to furnish, for the purpose of showing the sums awarded, and to whom due. And as it has been merely extracted from the journal of its proceedings, which will be lodged with the Department of State, the schedule itself may be transferred by it to the Department of the Treasury, as a guide to direct its payments. And the Commission would recommend its speedy publication for the information of all those whom it may concern, or the adoption of any other mode which the proper officers of the U. S. may think more convenient for the attainment of this object. "All of which is respectfully submitted. "Washington, 8th June, 1824. "Attest: "T. WATKINS." "H. L. WHITE. This report was published in the National Government Journal, June 26, 1824, and a list of the awards in the next number. The following papers of the commission are in the Department of State: 1. Journal. 2. Register of claims received. 3. Claims adjudged. 4. Claims adjudged: awards and decisions. 5. Claims admitted. 6. Report of Commissioners, with a list of awards. There is also a thin quarto volume, containing an alphabetical list of the names of claimants, which was begun but not completed. CHAPTER D. EAST AND WEST FLORIDA CLAIMS. Question as to West Acting on the assurance of Livingston and Monroe that West Florida was comprised in the cession of Louisiana, Congress, in extending the customs laws over the ceded territory, authorized the President, whenever he should deem it expedient to do so, to erect "the bay and river Mobile" and the adjacent territory into a separate district. When the Spanish Government protested against this measure, assurances were given that the United States, reserving their claims in that quarter as a subject of discussion and arrangement with Spain, meditated in the mean time no act inconsistent with the peace and friendship existing between the two nations.3 In the summer of 1810, however, while the Spanish monarchy was in the throes of dissolution, a revolution occurred in West Florida. Baton Rouge was seized, and a convention was held by which the independence of the province was declared and an application made for its admission into the American Union. The President repulsed this application, but determined to take possession of the territory as part of the Louisiana purchase. It was accordingly occupied by the American forces, but only as far as the River Pearl. The territory between that stream and the Perdido was permitted still to remain in the possession of Spain. Provision for Occupying On the 3d of January 1811 President Madison sent to Congress a secret message in which he recommended the expediency of authorizing the Executive to take temporary possession of any part of the Floridas, in pursuance of arrangements with the Spanish authorities; or without such arrangements, in case those authorities should be subverted and there should be apprehension of the occupancy of the territory by another foreign power. Acting on this message, Congress, in secret session, on the 11th of January, "taking into view the peculiar situation of Spain and her American provinces," and "the influence which the destiny of the territory adjoining the southern border of the United States may have upon their security, tranquillity, and commerce," resolved that the United States could not "without serious 1 Am. State Papers, For. Rel. II. 564. 22 Stats. at L. 254. 3 Message of President Jefferson to Congress, November 8, 1804, Am. State Papers, For. Rel. I. 63. 5 'Am. State Papers, For. Rel. III. 394-400. Am. State Papers, For. Rel. III. 539; Adams's History of the United States, V. 305–315. |