CHAPTER F.

THE DANISH INDEMNITY: CONVENTION OF MARCH 28, 1830.

Though diplomatic relations between the United Reservation of Claims. States and Denmark were early established, the first treaty entered into between the two countries was that of friendship, commerce, and navigation, which was concluded at Washington on the 26th of April 1826. On the day preceding its signature Mr. Clay, who was then Secretary of State, addressed to Mr. Pedersen, the minister resident of Denmark at Washington, with whom the negotiations had been conducted, a note in which he stated that "it would have been satisfactory to the Government of the United States if Mr. Pedersen had been charged with instructions, in the negotiation which has just terminated, to treat of the indemnities to citizens of the United States in consequence of the seizure, detention, and condemnation of their property in the ports of His Danish Majesty. But," continued Mr. Clay, "as he has no instructions to that effect, the undersigned is directed, at and before proceeding to the signature of the treaty of friendship, commerce, and navigation on which they have agreed, explicitly to declare that the omission to provide for those indemnities is not hereafter to be interpreted as a waiver or abandonment of them by the Government of the United States, which, on the contrary, is firmly resolved to persevere in the pursuit of them until they shall be finally arranged upon principles of equity and justice. And to guard against any misconception of the fact of the silence of the treaty in the above particular, or of the views of the American Government, the undersigned requests that Mr. Pedersen will transmit this official declaration to the Government of Denmark." Mr. Pedersen acknowledged the receipt of this note and promised to transmit it to his government.1

The claims to which this correspondence related had Origin of the Claims. their origin in the Napoleonic wars. On the 14th of September 1807 Denmark, suddenly forced by Great Britain from the position of neutrality from which Napoleon had already prepared to drive her, issued instructions to her privateers to bring in for adjudication not only all British vessels but all vessels which there was ground to suspect of not being neutral. In the latter part of 1809 American merchants, who since the expiration of the embargo laws had eagerly returned to the pursuit of foreign commerce, began to complain of the seizure of their vessels and cargoes by the Danish privateers. As early as July 19, 1809, a memorial was sent from Christiansand to the

1 Treaty Volume, 234, 235.

2 Am. State Papers, For. Rel. III. 327.

President of the United States by the masters and supercargoes of American vessels whose voyages had thus been interrupted.1 In the following October resolutions on the subject were adopted by the merchants of Philadelphia. Between April and October 1809 many American vesselsreports at the time said upward of fifty-were seized and carried into Danish ports, the most of them into Copenhagen and Christiansand, but some into Aulburg and Fladstraud. Out of a list of fifty, twenty-one were condemned, but in some of the cases of acquittal, as well as in some of the cases of condemnation, appeals were taken.2

Privateering Instructions of 1810.

March 28, 1810, revised instructions to Danish privateers were issued, by one clause of which all vessels were declared to be good prize "which have made use of British convoy either in the Atlantic or the Baltic."3 Under this clause eighteen American vessels were seized in 1810, and many more were captured in the same year by the Danish privateers on other grounds.

Remonstrances.

The first remonstrance on the part of the United States against the Danish seizures was made by John Quincy Adams, who in September 1807, while on his way to Russia as minister of the United States, stopped at Christiansand and there received information of the extensive attacks to which American commerce had already been subjected. Though he was not accredited to the Danish court, he made such representations as were admissible on the subject of the seizures, and then went on to Russia. More than a year and a half elapsed before the United States were represented at the Danish court by a minister.

In May 1811 Mr. George W. Erving arrived in CopenMission of Mr. Erving. hagen as special minister of the United States. His first act after his arrival was to request that all proceedings in the American prize cases might be suspended till, having been presented to the King, he should be able to enter into regular communication on the subject with Mr. De Rosenkrantz, the minister for foreign affairs; and on the 6th of June he transmitted to Mr. De Rosenkrantz two lists of vessels, one of which embraced twelve vessels, taken in company with a fleet under the convoy of a British gun brig and sent into Christiansand by five Danish men-of-war in July 1810. The other list embraced sixteen vessels against which suits were then pending in the high court of admiralty at Copenhagen, and in two of these cases the sole ground of complaint related to certificates of origin given by French consuls in the United States. It had been the practice of these consuls to grant certificates of origin to American vessels bound to ports in France or in neutral or allied countries. In 1809 the French Government directed them to discontinue granting such certificates except to vessels bound to France. This order was not received in the United States till November 13, 1809, and it was in the interval between its issuance in France and its reception in the United States that the two certificates in question were granted. The King, on being informed of the facts, directed that certificates of origin issued by the French consuls before receiving the order to cease granting them

1 Am. State Papers, For. Rel. III. 329.

2 Id. 328-332.

3 Id. 524.

should not be permitted to work any injury to the vessels. In other respects also His Majesty manifested the rectitude of his intentions, and seizures of American vessels by the Danish privateers were, after Mr. Erving's arrival at Copenhagen, for the most part discontinued.

In a dispatch to Mr. Monroe of June 23, 1811, Mr. Erving stated that the evils which American commerce had suffered in Denmark, though very considerable, were yet not so extensive as had been generally believed. He gave the whole number of captures in 1809 as 38, of which 12 were condemned. In 1810 the number of captures was 122, of which 30 were condemned, including 8 out of 18 convoy cases. Thus the whole number of captures in 1809 and 1810 was 160, and the whole number of condemnations was 42, of which 12 were not genuine American cases. Ninety-four vessels had been released. Twenty-four cases, including the 10 undetermined convoy cases, were still pending in various tribunals. "Finally," said Mr. Erving, "of the 14 cases (not convoy cases) which were pending before the high court on my arrival, 4 have been acquitted. And though the privateersmen and all concerned with them (and the ramifications of their business are immense) have made every effort to bring on condemnations, yet the tribunal, otherwise perhaps well disposed to proceed, has been steadily held back by the government, and I see the best reason to hope that at least 8 of the remaining 10 cases will be acquitted. As to the convoy cases my confidence is not so strong, yet even of them I do not despair. The ground on which they stand, I am aware, is not perfectly solid, yet I did not feel myself authorized to abandon them, and therefore have taken up an argument which may be difficult, but which I shall go as far as possible in maintaining." Mr. Erving further stated that, though Mr. De Rosenkrantz gave him reason to hope for the King's perseverance in the change of system which had so happily taken place, he discouraged "any expectation of indemnification for the injuries sustained by our commerce under that which now appears to be relinquished. Yesterday he told me very explicitly," continued Mr. Erving, "that against the definitive decisions of the high court I must not hope for any redress. He trusted that for the future we should not have any cause to complain, but for the past there was no remedy. I thought it not opportune to enter much into the matter at that time, and therefore contented myself with some general protestations against his doctrines." A week after this dispatch was written Mr. Erving complained to Mr. De Rosenkrantz that the tribunals, in their determination of the American cases, did not give effect to the "just and liberal views" of the King; that the high court" had, in a multiplicity of cases, * * * entered into matters entirely irrelevant to the object of the instructions;" that it had "given weight to evidence entirely inadmissible," and that it had "resorted to pretexts for condemnation entirely insufficient." As an example he pointed to a then recent decision, by which he said that a valuable American ship was condemned on the mere allegation of some of the privateering captors that she had thrown some papers overboard, though her neutrality and that of her voyage were fully established. These representations were made on the 30th of June. On the 2d of July condemnations were pronounced by the high court in 4 of the pending convoy cases. As this

1 Am. State Papers, For. Rel. III. 521.

action was taken in spite of Mr. Erving's requests for delay, he "warmly remonstrated against this precipitate procedure, and the determination taken to condemn all the convoy cases without admitting any justificatory pleas." The Danish Government, however, maintained "that neutral vessels that make use of the convoy or protection of the vessels of war of Great Britain are to be considered as good prize if the Danish privateers capture them under convoy." Such was the construction given by Mr. De Rosenkrantz to the convoy clause of the instructions of March 28, 1810; a clause which, as thus construed, the Danish Government refused to modify. The principle on which the clause was justified was, as stated by Mr. De Rosenkrantz, "that he who causes himself to be protected, by that act ranges himself on the side of the protector, and thus puts himself in opposition to the enemy of the protector, and evidently renounces the advantages attached to the character of friend to him against whom he seeks the protection. If Denmark should abandon this principle the navigators of all nations would find their account in carrying on the commerce of Great Britain under the protection of British ships of war, without running any risk. We every day see this done, the Danish Government not being able to place in the way of it any obstacles."2 In contesting this principle the representatives of the United States seem to have been greatly aided by its very literal application by the Danish tribunals, so that the mere fact of being found in the company of vessels under convoy was treated as a sufficient ground for condemnation. After May 1811 few American vessels were molested by the Danes.3

tions.

In the interval between Mr. Erving's special mission Subsequent Negotia- to Copenhagen, which ended in May 1812, and Mr. Clay's correspondence with Mr. Pedersen, no serious effort was made to bring about a settlement of the claims for Danish spoliations, though the subject was not permitted to fall into oblivion. In the autumn of 1818 Mr. George W. Campbell, who had been appointed minister to Russia, stopped on his way at Copenhagen, and in an interview with Mr. De Rosenkrantz stated that although he was not instructed to renew the discussion of the claims at that time, he had it in charge to say that his government, entertaining the strongest conviction of their justice, could not think of abandoning them. In 1825 Mr. Christopher Hughes, jr., who had been transferred as chargé d'affaires from Sweden and Norway to the Netherlands, was instructed on his way from Stockholm to The Hague to call at Copenhagen and repeat the demand for satisfaction of the American claims. In the performance of this duty he presented to Count Schimmelmann, then Danish minister for foreign affairs, on the 5th of August a note urging that an indemnity be paid. On the 17th of August Count Schimmelmann replied, again setting up the irreversible character of the sentences of the high court of admiralty. Two days later, however, Mr. Hughes, in a report to his government, stated that the general result of his observations during his short stay of eighteen days at Copenhagen was that there did exist "a disposition to go into an examination of the claims, which the owners of them may perhaps turn to a favorable account-a disposition produced by views and

1 Am. State Papers, For. Rel. III. 529.

2 Id. 526.

3 Id. 535.

calculations of the importance of our trade and of the benefits to be derived from a commercial convention." But he also stated that the owners of the claims "must consent to forget, in a great measure, their justice, and to take up the subject on the more liberal principle of compromise," since there was "neither the will nor the ability to pay the whole."

In 1827, Henry Wheaton was sent to represent the Mr. Wheaton's Mission. United States at the Danish court. His instructions, which were signed by Mr. Clay on the 31st of May, As to the mode of

contained an ample review of the subject of claims. their settlement, Mr. Clay said that the President would prefer a board of commissioners similar to that under Article VII. of the Jay Treaty. But if efforts in that direction should be found to be unavailing, Mr. Wheaton was instructed to propose as a compromise the payment of a gross sum, and to invite the Danish Government to state how much it would be willing to pay. Its statement on this subject he was to receive ad referendum. It was, however, to be understood that any arrangement arrived at, whether through a board of commissioners or by compromise, was not to be considered as comprehending the claims for the cargoes of the ships Fair Trader and Minerva Smyth, and the brig Ariel, which were detained at Kiel in 1812 and were thought to present peculiar features of injustice; and if a compromise should be made it was to be understood as extinguishing any claims of Danish subjects upon the Government of the United States. 2

1Early in 1827 the subject of claims against France, Naples, Holland, and Denmark, since 1805, was agitated in Congress. On January 30 Mr. Clay, in response to a resolution, sent to the Speaker of the House of Representatives a list of such claims. In this list the claims against Denmark aggregated $2,662,280.361. (Am. State Papers, For. Rel. III. 384, 505, 529.) On February 23 Mr. Everett, from the Committee on Foreign Affairs, reported that the committee were confident that executive measures would prove successful in effecting a settlement, and that till such measures had been exhausted and found inadequate, the time for legislative interference would not have arrived. (Am. State Papers, For. Rel. III. 614.)

2 There were three vessels-the Mercator, the Henry, and the Hendrickalleged to be the property of Danish subjects, in respect of which claims against the United States arose during the rupture of amity between the United States and France in 1798-1800. The Mercator and the Henry, appear to have been captured by American armed vessels on suspicion that they were in reality American vessels engaged in violating the nonintercourse with France. The Mercator, which was captured on a voyage from St. Thomas to St. Domingo, was said to be the property of a citizen of the former island. (Am. State Papers, For. Rel. III. 344; H. Doc. 249, 22 Cong. 1 sess.) The Hendrick, a Danish brigantine, was captured by a French privateer in 1799, and was retaken by an armed vessel of the United States and carried into a British island where she was adjudged to be neutral, but with such an allowance of salvage and costs as absorbed nearly the whole amount of the sales of the vessel and cargo. (Am. State Papers, For. Rel. II. 483.) During the American Revolutionary war the Danish minister for foreign affairs made an application to Franklin, who was then minister of the United States at Paris, for redress in the case of the Danish ship Providentia, captured by an armed vessel of the United States. (Wharton's Dip. Cor. Am. Rev. VI. 787.)