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.

"2. Where the release justly claimable was vexatiously withheld, compensation was awarded to the ship owner for the wages of his crew, for 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."1

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.

On the 21st of June 1797 Mr. Pickering, who was Pickering's Report on then Secretary of State, laid before the President a Depredations. 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."1

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

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

2Id. 440.

3 Id. 445-458.

When Charles Pinckney was sent as minister to Pinckney's Instructions. Spain in June 1801, he was "instructed to urge particularly on the Spanish Government redress for such of our citizens as have suffered from captures made by privateers unlawfully cruising out of Spanish ports, and from wrongful condemnations, both by Spanish tribunals and by decisions of French consuls, within Spanish jurisdiction." He was forewarned that the Spanish Government meant "to turn us over for redress to the French republic in all cases where the prizes have been taken under French commissions or been condemned by French consuls;" and was directed to "combat such an idea" with arguments drawn from sources in his possession, and with appeals "to the principles and motives which ought to direct the conduct of a wise and just government." For the purpose of adjusting the questions at issue, he was instructed to propose arbitration by a board of commissioners such as that under Article XXI. of the treaty between the United States and Spain of 1795, or those under Articles VI. and VII. of the Jay Treaty.1

Spanish Blockades.

Many of the attacks on the commerce of the United States that were begun or consummated in Spanish jurisdiction by persons acting under the authority of France occurred during the "misunderstanding" between the United States and the French republic which was terminated by the convention. of September 30, 1800. Numerous seizures were, however, made by the Spaniards during 1800 and 1801 under a proclamation issued on the 15th of February 1800, on which day the Spanish minister of state announced that the King, in consequence of the "scandalous traffic" which many of his subjects carried on with Gibraltar in neutral vessels, and for the purpose of making reprisals against the enemies of his Crown, had declared the ports of Cadiz and St. Lucar de Barrameda to be blockaded, and had also thought proper to declare that from that day Gibraltar should be considered as blockaded, and that all neutral vessels going thither should be held to be legitimate prize. While Gibraltar was little resorted to for the purposes of trade, American vessels engaged in commerce with the Mediterranean were very generally instructed to touch there, since in consequence of its situation it was much used by vessels as a port of call, not only for the purpose of getting information, but also for the purpose of obtaining the convoy of national ships against the Barbary corsairs. The blockade in question, at the time when it was proclaimed, was protested against by the ministers of the neutral powers at Madrid on the ground that it was not warranted by the real state of Gibraltar. It was subsequently stated that the force by which the blockade was alleged to be maintained was stationed at Algeciras, and was for the most part kept at a distance from Gibraltar by a superior naval force which it could not without manifest danger venture to approach; that, after the issuance of the proclamation, the port of Algeciras was itself entered and attacked by a British fleet, and that since this occurrence no proclamation had been made declaring the blockade to be renewed.1

1 Am. State Papers, For. Rel. II. 476.

2 Id. III. 293.