"These proofs of value however were rarely full, and sometimes a.. of them were wanting. Aware that this might probably be the case, the board at an early day invited the gentlemen who represented claims before them, to aid them in collecting information as to the cost of constructing vessels of different classes, in the several building districts of the United States, during the periods embraced in its investigations, and to ascertain from the insurance offices and other proper sources the rate at which such vessels depreciated as they grew older. Several gentlemen were kind enough to take upon themselves portions of this labour. My deceased friend, Alexander Stewart, Jun., of Philadelphia, whose name will recall to the circle which knew him all that is indefatigable, accurate, and just in mercantile character, devoted to it the industry of several months; examining the books of builder's, merchants and insurers, where these were accessible to him; gathering facts and estimates from intelligent residents of other cities by correspondence; collating his materials, and presenting their results in a tabular form.

"The seizure and description of the vessel, its place of construction, and its age were except in a few cases of foreign built vessels determined easily by the register; and the proximate, or rather the probable value was then fixed by reference to the general table of information which had been collected on the subject. This result was compared with the proofs in each case; and the table was made more accurate for future use by the repeated tests which were thus applied to it.

"The cargo when taken at sea was estimated at its price in the market from which it came, and the different charges which had contributed to increase its value. The bills of parcels of the claimants, their invoicestaking care to strike out the debentures on foreign merchandize where they appeared to be included in the price-the sworn value in the manifests of exportation, and a comparison of these in some cases with other similar documents relating to other shipments, or with prices current of the day, enabled the board to fix the original cost with reasonable certainty.

"To this were added the ordinary brokerage on the purchase of the goods-whether it was actually paid by the claimant, or the transaction was effected by his personal agency-the expenses of shipment, and the fair and ordinary premium of insurance for the immediate voyage, ascertained at the time of shipment and calculated to cover. This premium was regarded as a sufficiently exact equivalent for the hazards of the voyage, and as indicating definitely the increase of value which was gained by encountering them. It was therefore allowed, without inquiring whether the risk had been transferred by contract to an insurer, or was borne by the owner himself.

"As the vessel was the subject of specific allowance, and wages are not due unless the voyage be completed; and as freight is made up only of these and of the profit of the ship owner on the capital invested in his ship; it would seem at first view that the rule which excludes a claim for prospective profits should also apply to one for freight. But, as the premium of insurance represents the increase of value which is communicated to goods by the hazards they have encountered, so freight or the cost of carrying them indicates the increase of value they derive from their change of place. There is only this difference between the two: that the right to the full premium is fixed from the commencement of the risk, while the freight is not finally earned till the cargo arrives at the port of delivery. Both contribute to the value of the goods at the time of capture, the premium having imparted its entire amount, as a charge incurred at the time of shipment; the freight imparting such a share of its stipulated amount as is proportioned to the part of the voyage performed, pro rata itineris peracti.

"In estimating the pro rata freight, the board was guided by the practice which obtains in most of our commercial cities in the adjustment of average losses, and fixed it at two-thirds of the full freight on the immediate voyage.

"Yet, though the freight was allowed only as an element in the value of goods, it was not always or even generally awarded to the owner of them.

The question remained as in all other cases to be settled by facts: Was he the party substantially aggrieved? If he had paid the freight, as was sometimes the case under special contracts, he received it back under the treaty; if he had not, the award was made in favour of the ship owner, as the real loser.

"3. Other cases presented themselves in still different aspects. Sometimes the seizure took place while the vessel was in the act of entering her port of destination; sometimes after she had arrived there, but before the cargo was unladen; sometimes after a partial delivery. The question, in what manner the property should be estimated in these cases; whether according to the market value abroad, or the cost at home with the charges of shipment and freight; was often embarrassing from the difficulty of distinguishing in principle between them. Vessels in the same trade were taken possession of under the same pretext, often in sight of one another, when the forbearance of a few hours would have made their circumstances identical.

"The distinction which was adopted divided them into two classes, depending on the fact of the voyage being legally completed, or otherwise: and as according to the mercantile law full freight is earned only when the voyage is complete, the rules established by the courts on the subject of freights determined for the board its mode of estimating the value of these cargoes. Thus it was held, that the domestic value must be the basis of estimation in all cases where the vessel had not actually entered the port before capture: but where she had entered it, and was prevented from delivering her cargo by the act of the French Government, the voyage was held to be complete, freight earned, and the value of property abroad became the measure of the award. (See the case of Morgan . The Insurance Company of North America, 4 Dall. 455.)

"4. A small class of cases remained to which neither of these rules of estimation would apply. They were those in which the cargo was acquired principally by the skill, enterprize and labour of the claimants, and the application of moneyed capital had contributed very little to its value. Such were the cases of vessels engaged in the fisheries, or in whaling or sealing voyages. In these, for want of a rule of more probable accuracy, the cargoes on board at the time of capture were valued at the prices which they would have realized in the markets to which they were destined.

"To each of the awards which have been described was added a reasonable but guarded allowance for the expenses attending a reclamation immediately after the capture, where it was shown that they had been paid by the claimant. These were a proper consequence of the wrongful act of France; and indeed it would generally have formed a just objection to any claim against her, that it had not been prosecuted at the time when it arose.

"II. The only awards that are not explained by the preceding remarks, belong to cases where the property seized was not finally confiscated, or where a portion of its proceeds was restored to the owner.

"1. We have intimated already, that where a vessel was conducted into a port as prize to a French cruiser, a reasonable detention for the purpose of determining her character formed no ground of complaint against the nation. This is obviously true, if the arrest was justified by circumstances of suspicion; and even if it was plainly tortious, it was the act of individual wrong doers only, until it received the sanction of the government.

for

"2. Where the release justly claimable was vexatiously withheld, compensation was awarded to the ship owner for the wages of his crew, the expenses of supporting them, and for the damage incurred by the vessel during detention. If however a condemnation supervened, the items of wages and damage were omitted in the calculation: wages, because in such case they were not payable; and damage to the vessel, because it was merged in the general allowance of her value at the time of capture. This class of awards was generally described as the allowance for demurrage; but the loss of interest on the capital invested in the ship, which forms the most important element in the charge commonly known by that

In fact,

name, was not recognized as a subject of claim before the board. as soon as it was determined, for reasons which have been stated, that interest was not to form a substantive part of the award in each case, it became necessary to reject it from the elementary computations. But for this, the interest accruing on the cost of a cargo would have entered into the estimate of its value when captured at sea.

"In like manner an allowance was made to the owner of the cargo for the damage it sustained by an unwarrantable delay of restoration.

"3. Where the property was recaptured from the French and restored to the owner on payment of a salvage, the amount so paid was plainly the measure of the owner's damages.

"4. So, too, where the property was ransomed from the captors, the owner's loss was the price which he paid for the ransom. This of course supposes that there had been no change of its value in the intervening time: if it was injured while in the captor's possession, or if on the other hand it became more valuable in consequence of some act of theirs, the circumstance as it affected the amount of loss to the claimant, was regarded in the formation of the award.

"5. This was indeed the spirit of the distinction between the two classes of ransoms and compromises. In the former, the property was restored soon after the seizure, and before its value was materially altered. The latter were contracts, entered into after the property had been brought into port, and to be carried into effect after a judicial proceeding or by means of one. The part restored was to be invested with the character of prize goods, and to be sold under the sentence of a court in the market to which it had been carried by the captors; or else, the whole was to be sold together as prize, and the contract was for the restitution of a share of the proceeds.

"The effect of this was sometimes to diminish, but generally to augment greatly the value of the property. It happened not infrequently, that the claimant, who had relinquished to the captors a third or even a half of his property, found himself much more than indemnified by the immense profits which a prize sale in a prohibited market enabled him to realize on the rest. The board, as we have seen, found itself obliged to disregard the result of prize sales in other cases; and there was no reason for a distinction in favour of these. The only fair course was to calculate the indemnity as in an ordinary case of confiscation, and to deduct from this the sums received by the claimant under the compromise: the balance, if any, was the amount to be awarded.

6. In a considerable number of cases, the captured property was restored to the claimant, on his giving bond in a sum equal to its estimated value to abide the event of proceedings before the courts of prize. Such a transaction however had no effect upon the award of the commissioners. The wrong to the party was still the original capture: the bargain expressed in his bond was voluntary on his part, and was in fact nothing else than a conditional purchase, to become absolute in the event of a condemnation. Whether in the result this contract enabled him to make a profit, or whether it only served to increase his loss, the only injury which he could complain of against France was the capture and condemnation of his property.

"To the awards in these cases also, were added the reasonable expenses of the reclamations before the French courts."

1It appears that John H. Wheeler, of Murfreesboro, North Carolina, was in the first instance appointed clerk to the board whose history has just been narrated. (Mr. Brent to Mr. Wheeler, July 19, 1832, MS. Dom. Let. XXV. 138.)

In the Reminiscences of James A. Hamilton there is a letter from Mr. Rives, dated March 24, 1831, during the negotiation of the convention, suggesting that a number of the leading claimants should say what sum would in their opinion be admissible as a minimun. (Reminiscences, 201. See, also, pp. 238-240.)

CHAPTER C.

INDEMNITY UNDER THE FLORIDA TREATY.

and Great Britain.

It has been seen that the jurisdiction of the commisWar Between Spain sion under Article XXI. of the treaty of 1795 between the United States and Spain was limited to losses occurring during what was called "the late war between Spain and France." Peace between those powers having been made in 1795, war broke out between Spain and Great Britain in the following year.

Depredations.

On the 21st of June 1797 Mr. Pickering, who was Pickering's Report on then Secretary of State, laid before the President a report concerning depredations on the commerce of the United States by the armed vessels of Spain, Great Britain, and France since the 1st of October 1796. In this report only one case of capture under color of authority of Spain was particularly cited; but it was stated that there had "probably been a number of captures by Spanish cruisers, although not particularly specified, the consul of the United States in one of the ports of Spain having informed that almost daily American vessels were taken and brought in by French and Spanish privateers."

Madison's Report.

On the 20th of April 1802 President Jefferson, in response to a resolution of the House of Representatives, communicated to that body a report of Mr. Madison, as Secretary of State, containing further information in regard to Spanish spoliations. By this report the spoliations since October 1, 1796, appeared to fall into six classes:

1. Vessels taken at sea and brought into Spanish ports by the French. 2. Vessels similarly treated by the Spaniards.

3. Vessels seized in Spanish territory, and either condemned there or sent to French ports by the French.

4. Vessels seized or detained by the Spaniards in Spanish ports.

5. Cargoes, belonging to citizens of the United States, seized or embargoed by the Spaniards on American vessels.

6. Cargoes, belonging to citizens of the United States, seized by the Spaniards on foreign vessels other than American.

By far the greatest number of complaints were said to fall within the first and third classes, comprising captures and condemnations by the French.3

Am. State Papers, For. Rel. II. 28.

*Id. 440.

3 Id. 445-458.