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"As the premium was regarded as an equivalent for the hazards of the voyage, and as indicating the consequent increase of value, it was allowed, whether this risk had been incurred by an insurer or was borne by the owner himself. In cases of capture and release, where doubts existed as to the neutral character of the vessel or circumstances [existed] justifying the capture, nothing has been allowed, unless the delay was unreasonable; and then only for the wages of the crew, the expenses of their support and the damage incurred by the vessel during the detention. When the property was recaptured from the French and restored on the payment of salvage, the amount so paid, with the incidental charges, was held to be the measure of the owner's damage; so, too, in the case of ransom, the sum paid was awarded as the amount of compensation; but, when the property after the capture had been sold and a proportion of its proceeds given up as the price of a partial restitution, the indemnity was calculated as in an ordinary case of confiscation, deducting the sums received by the claimants under the compromise.

"In the distribution of the amounts awarded, reference was had to the claimant's actual loss. Whatever he had received under contracts of insurance was deducted from his award; and when the Insurers were claimants before the Board, their claims were generally allowed as valid for the sums they had paid; the only exception to this rule, was in cases of loss which had been specially adjusted between the parties by compromise or otherwise, and in such cases the object has been to carry into effect the intention of the parties at the time of the adjustment.

"Having thus stated the general principles by which the Board was guided in its decisions on the validity and amount of claims and in the distribution of its awards, the Undersigned subjoin a Descriptive list of the several books which have been prepared under their direction and which accompany this Report.

"A. Journal of the proceedings of the Board.

"B. A list of all the Memorials presented numbered progressively from 1 to 3148.

"C. A list of all the spoliations complained of in the Memorials abovementioned.

"D. A list of the several awards made by the Board, arranged for convenience of reference, under the heads of the vessels which were the subjects of Spoliation or which had been at some time employed in transporting the property seized.

"From these it appears that the number of spoliations complained of in 3148 Memorials was 883; of which 1567 Memorials referring to 361 spoliations have been made the basis of Awards amounting to nine million three hundred and fifty-two thousand one hundred and ninety three dollars and forty seven cents.

"The Board then adjourned to meet to-morrow at 10 o'clock.

"G. W. CAMPBELL.
"J. K. KANE. '
"R. M. SAUNDERS.

Attest:

"JOHN E. FROST, Secy."

Mr. Kane's Notes.

When we consider the multitude of private interests at stake, and the circumstance that the fund fell far short of satisfying even the principal of the claims which were found to be valid, it is not surprising that complaints should have been made of the results of the board's deliberation. With a view to elucidate the subject and correct misapprehensions, Mr. Kane, shortly after the adjournment of the commission, published a pamphlet in which he set forth the general principles by which the board had been guided.'

Notes on Some of the Questions Decided by the Board of Commissioners under the Convention with France, of the 4th July 1831. Philadelphia, 1836.

He discussed the subject under two general heads-first, the title of the claimant to participate in the fund; and second, the measure of compensation.

National Character of
Claim.

Under the first head, the first topic discussed was that of the national character of the claim. The commission required that the claim should be altogether American, that it should have originally belonged and have continued to belong to an American citizen. The question whether a foreigner domiciliated in the United States for commercial purposes was entitled to the benefits of the convention, did not arise before the commission. Several cases, however, occurred where the claimants, who were American citizens by birth, and had not renounced their allegiance, were at the time of the spoliation residing in foreign countries. Where the foreign nation, within whose territories the claimant was domiciliated, was at war with France, and the property was taken jure belli, the claim was disallowed.' But where the country in which he was a resident was neutral, he was held to retain the right to protection. Where the claimant, though a resident citizen of the United States, was interested in a foreign commercial house, he was regarded, in respect of the property of such house, as domiciled in the country in which the house was situated. It was also held that a citizen might renounce the protection of his government by violating its laws. By the act of Congress of February 7, 1806, commercial intercourse was prohibited between "persons resident within the United States and persons resident within any part of that island (Hispaniola) not in the possession and under the acknowledged government of France." Where a vessel when captured was violating this statute, indemnity was refused. The same rule was applied in cases of violation of the embargo of December 22, 1807, and the nonintercourse act of March 1, 1809.

Meaning of Term "Property."

The convention made provision only for cases of unlawful captures of American "property." By a majority of the board it was determined that property should be held to include "only those interests which were absolutely vested before the intervention of France, or which became so in consequence of that intervention. Commissions, therefore, as well as profits, wages of seamen, and a variety of minor contingent interests, were held not to possess the character of property." The claims of insurers were, however, regarded, whether the loss was total or partial, though the commissioners under the Florida treaty seemed to have treated insurers as assignees and recognized them as claimants only in case of total loss. The commissioners under the French convention acted upon a broader principle. 3

Agency of France.

The next subject discussed by Mr. Kane was that of the nature of the act which formed the subject of complaint. Was it the act of France? In a large proportion of the injuries, the agency of France was direct and obvious. Where there were judicial proceedings, the commissioners recognized the principle that a state is politically answerable only for the decisions of its

The Pizarro, 2 Wheat. 228.

2 Murray v. Charming Betsey, 2 Cra. 120.

3 Gracie v. New York Insurance Co., 8 Johns. 237, 245.

highest tribunals; but where the course of decisions in the highest court was absolutely uniform, and a reversal of the condemnation was hopeless, the claimant was not required to show that he had prosecuted an appeal. Seizures of munitions of war and provisions, and levies of pecuniary contributions in neutral territory by national functionaries for public uses, were treated as grounds for indemnity. Also the burning of American vessels at sea by a French squadron to conceal its course from the enemy. Spoliations of a minor sort, having the character of personal depredations, were excluded.' But, apart from spoliations in which the agency of the French Government through its own officers was in question, there was a large class of cases in which it was alleged that France influenced or compelled other nations to commit wrongs. This allegation especially affected claims growing out of spoliations in Holland and Denmark.

Case of Holland.

When the convention between the United States and France of 1831 was concluded more than a year had elapsed since Wheaton brought to a successful termination his negotiations with Denmark for the payment of the claims of American citizens on account of the seizure, detention, condemnation, and confiscation of their vessels, cargoes, or other property in that country. If Denmark was thus liable, was not Holland also? If so, the claims against Holland were not valid charges on the fund under the convention with France, In reality, the United States had practically abandoned the claims against Holland, claims which grew out of the seizure and the sequestration or confiscation of American vessels in Dutch ports in 1809 and 1810. When the United States pressed the claims in 1815, the Dutch Government denied its responsibility on the ground that when the seizures occurred the Netherlands were under the actual government of France. The discussion continued from time to time for five years. The cases of three vessels were particularly discussed: The Baltimore, Captain Philips; the Bacchus, Captain Johnson; the St. Michael, Captain Dawson. On May 26, 1820, John Quincy Adams, as Secretary of State, instructed Mr. A. H. Everett, the chargé d'affaires of the United States at The Hague, to forbear to press the matter further for the present. This step was taken at the request of the Dutch Government, made through its minister at Washington, that the claims be not further pressed. The commissioners under the convention with France decided that these claims constituted valid demands against the French nation. Mr. Kane discussed the question as follows:

3

"1st. Holland, after some ten years of political changes, during which though nominally independent she was tributary to all the projects of France, had received in the month of June 1806, a king of the Napoleon family. But it was manifest, that in placing Louis upon the throne, his brother had not renounced his control over the affairs of that country. The form of distinct sovereignties was presented to the public eye; but the energies of the Dutch people were directed more than ever to the advancement of the imperial policy. At last, in the concluding month of 1809, a new crisis approached. At a moment when the finances of Holland were in a state of extreme embarrassment, she was required to destroy her commerce with foreign nations, which formed the principal source of her

1 U. S. v. Jones, 3 Wash. C. C. 218; Case of Cheline, 2 L. G. 714, 754. Am. State Papers, For. Rel. V. 598–629.

3 Id. 629.

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revenues. Louis ventured to remonstrate, and delayed compliance with the mandate. He was reminded in reply, that the country of which he was sovereign was a French conquest, and that his highest and imprescriptible duties were to the imperial crown;' and it was announced to him, in terms which could not be mistaken, that the project of uniting Holland to the empire was already matured, and that its consummation could only be postponed by his unqualified obedience. Among the most decided, though not the first tests of his submission, as he has since declared to the world, the pretended treaty of the 16th of March 1810, which was in fact a capitulation, was presented to him to be ratified.' 'It was imposed,' he adds, 'by the emperor;' and a prisoner as Louis was at the time at Paris, he had no choice but to yield. The French armies had forcibly possessed themselves beforehand of several of the Dutch fortresses; French officers of the customs occupied all the ports and outlets of the kingdom; and Napoleon, confounding apparently his purposes with their execution, had already directed his decrees to the authorities of Holland as if it was one of the departments of France. The assent of the king however did not avail to prolong his reign. The troops of his brother continued to advance, they menaced Amsterdam, the popular feeling was inflamed, and in the vain hope of averting a new revolution, Louis abdicated on the 1st of July in favour of his son. It was unnecessary: the emperor's arrangements were already made: a decree of thirteen articles was issued on the 9th from the palace of Rambouillet, the first of which declared that Holland was united to the empire.

"The tenth article of the treaty of 16th March 1810 was as follows: 'All merchandize, which has arrived in American vessels in the ports of Holland since the 1st of January 1809, shall be placed under sequestration, and shall belong to France, to be disposed of according to circumstances and to the political relations with the United States.' It was executed in the spirit which suggested it, rather than according to its terms: every American cargo, without reference to the date of its importation, was sequestered at once. Some were afterwards released under the decree of 9th July 1810, or by special favour; but the greater number, after more or less delay, were sold by the imperial order, and their proceeds passed into the caisse d'amortissement at Paris.

"It was for the value of these cargoes, that reclamations were made before the commissioners. The brief account which has been given of the political condition of Holland from the year 1809 till it was formally merged in the French empire, sufficiently explains the reason for allowing them. Holland was already a dependent kingdom, and Louis a merely nominal sovereign. The treaty was a form; in substance it was an imperial decree.

"2d. The spoliations to which Denmark ministered were of a different character. The grand project of Napoleon, which was to effect the subjugation of Great Britain by excluding her manufactures and the productions of her colonies from the markets of the world, had received the assent of nearly all European sovereigns. Denmark had been at war with England since the attack of Copenhagen in 1807, and had vied with France in edicts for the imprisonment of British subjects and the confiscation of their property. But, in the summer of 1810, she had not extended to her territories the prohibitions of the continental system. Large quantities of colonial produce belonging to American citizens were in consequence collected in the duchy of Holstein. The city of Hamburg formed the frontier post of the French custom houses; and its proximity to the free port of Altona, from which it is divided only by a geographical line, offered great facilities to the secret introduction of forbidden merchandize from the adjacent duchy.

"At this time, 10th August 1810, the decree of Trianon was promulgated, which marked the first change in the imperial policy by declaring a tariff on the productions of British colonies. This was followed on the 2d of October 1810 by a decree of Fontainebleau, applying the provisions of the former decree to all colonial produce found in the Hanseatic towns, or which might be imported into them thereafter. A third decree bore date the 4th of October: it recited that much colonial merchandize had been

brought into Holstein by Danish privateers, and authorized its introduction within the lines of French custom houses, by the way of Hamburg, at any time before the 1st of November following, on compliance with certain formalities and payment of the prescribed duties. No doubt these duties were enormous, prohibitory even; but in this there was nothing to complain of. So far as the decree of the 2d of October was retroactive, it affected those only who had been guilty of an offense against the regulations previously in force; and as to the future, it was optional with the owners of the goods, whether they would avail themselves of the privilege of bringing them to Hamburg on the terms proposed, or not. A series of ordinances of the king of Denmark succeeded however, which deprived them of this right of choice.

"The first of these was issued at Fredericsberg on the 20th of October. After announcing the qualified removal of the interdict on importations of certain goods into Hamburg by the French decree of the 2d, and conceding to those interested the royal permission to avail themselves of the privilege granted by 'the friendship' of the French emperor; it proceeds to declare the purpose of the king, to 'co-operate on his part in attaining the object of the emperor, by raising the prices in the duchies of wares named in the tariff to the height which they have reached in the neighbouring countries in which the French tariff is already established, and by preventing as far as possible the illicit exportation of colonial goods.' It then ordains, that everyone having in the duchies any such goods as are specified in the French tariff, shall declare the same within forty-eight hours on pain of confiscation, and shall within forty-eight hours more, make report of the quantity he intends exporting to Hamburg; it fixes the manner in which the transit shall take place, by the way of Altona, and enacts that goods once entered for transit shall not afterwards remain in the country; it charges a transit-duty of six per cent ad valorem on the goods so reported, in addition to that previously subsisting, and on the goods which shall not be reported it levies a heavier impost than that prescribed by the tariff of Trianon.

"Other ordinances followed on the 26th of the same month, avowedly at the request of the French emperor, and having for their object the expulsion of colonial produce from the Danish territories. At last it was announced, that by a royal decree of the 9th of November, 'all colonial goods held on foreign account in the duchies of Sleswig and Holstein, so far as they are referred to in the ordinance of the 20th of October, shall within twenty-four hours after the publication of the present decree be reported by the factors or other holders for exportation to Hamburg; and in default of such report, shall be confiscated."

"Driven by force of these extraordinary enactments out of the Danish territory, the route designated, and all escape fully guarded against, the colonial merchandize passed into Hamburg, and there became subject to the tariff of Trianon. The only indulgence which could be obtained by the owners, was a permission to pay their duties in kind, by surrendering two-thirds of the goods to the French Government; the rest standing charged with the transit duties and other expenses, which generally more than consumed it.

"Such is the history of the claims, which were classed as the Holstein and Hamburg cases. They present, on the part of Denmark, a train of wrongs unworthy of a state unquestionably sovereign and professing to be free, committed against the citizens of a friendly nation, who had violated no law, and were entitled to protection by every title of hospitality and justice.

"But the question before the board regarded not Denmark, but France. One cannot be charged with the acts of the other; for neither was dependent. It may be, that the conduct of king Frederic was dictated by his anxiety to conciliate the favour of the French emperor; or perhaps he was moved by the portion of the spoil which might fall into his hands: we had nothing to do with his motives or his fears. The act was his own: the kingdom of Denmark was then, as now, independent.

"France might plead the systematic evasion of her commercial regulations at Hamburg, and the well-known illicit destination of some of the

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