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vice-consuls of either party shall be ex officio the executors or administrators of the citizens of their nation who may die within their consular jurisdiction, or of their countrymen dying at sea, whose property may be brought within their jurisdiction." Under this provision a claim against the United States arose in 1857. It finally came before the mixed commissioners under the convention between the United States and Peru of January 12, 1863. The four commissioners rendered the following unanimous opinion and award:

"In the month of May 1857 the Peruvian citizen Juan del Carmen Vergil, returning from New York to the Pacific, died on board the steamer Empire City. The agents of the company to which that steamer belonged placed his personal effects in the hands of the 'public administrator of the city of New York.' "The minister of Peru in the United States, in July of the same year, represented to the Secretary of State that the Peruvian consul in the same city had made proper representation to entitle him to the charge of these effects under existing treaty stipulations, but that, failing to secure the rights therein guaranteed to him, it was necessary to interpose diplomatic offices.

"The Secretary of State immediately instructed the law officer of the Government of the United States in the city of New York to take such steps as would secure compliance with the provisions of the treaty.'

"The conflicting claims of the public administrator and of the consul of Peru appear to have been heard before the surrogate's court of New York at different times up to the 2nd December 1858, after which no record is found of further judicial investigation, although it continued to be the subject of diplomatic correspondence up to December 1862.

"When the attention of the Secretary of State (Mr. Cass) was first invited to this case, no objection was presented to the views expressed by Mr. Osma in reference to the Peruvian consul's right to take possession of Vergil's property under the treaty of 26th July 1851; so far from it, it will have been observed that prompt measures were taken to secure the observance of the stipulations of the 39th article of that treaty.

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When it had become evident that the proceedings were unsuccessful, the question was referred to the Attorney-General of the United States for his opinion as to the requisite measures to be pursued in order to give effect to the stipulations of the treaty.'

"That officer declared that the detaining of the goods of the deceased from the Peruvian consul was unlawful and a wrong which may justly be complained of. He thought, however, that the Peruvian consul and minister were in fault in endeavoring to obtain 'redress where there is no authority to furnish it,' and he added that the judicial authorities would have given them this justice 'for the asking.'

"Dismissing any further question upon the principles involved in this claim, in regard to which there is no disagreement among the commissioners, it remains only to arrive at a just measure of the value of Vergil's effects as they were delivered to the public administrator and claimed by the consul of Peru.

"Consul Casado wrote to the Peruvian minister on 9 Octo ber 1858, that Vergil had some jewelry and two thousand dollars, together with some bales of merchandise, the value of which he did not know.' The official record, transmitted by the district attorney of the United States in New York to the Secretary of State on the 13th December last, gives a precise memorandum of the accounts of the public administrator in reference to Vergil's effects. From this it appears that he charged himself with cash found in Vergil's trunk, $101. Add to which the appraised value of his other effects, which was $347.96, making a total of $448.96.

"Having discovered in the expediente presented in this case on the part of Peru the name of Messrs. Templemann & Bergmann, of Lima, as gentlemen having business transactions and correspondence with Vergil, Mr. Bergmann of that firm was invited to appear before the commission and communicate any information he might have upon the subject of Vergil's property. The papers and statements presented by this intelligent and, as is known to the mercantile community here, upright gentleman do not definitely determine the actual value of Mr. Vergil's property at the time of his death. But they are sufficiently conclusive to warrant the belief that the detention of Vergil's effects by the public administrator of New York worked damages and losses to his estate which are not covered by the value of his property as appraised added to the money found in his possession.

"Taking into consideration the following elements, viz, the money, the effects of which Vergil died possessed, and the damages actually resulting from the embarrassment to which his property was unjustly subjected, it is believed that nine hundred dollars is a reasonable measure of redress in the case. The commission therefore award to the legal representatives of Juan del Carmen Vergil nine hundred dollars with interest at 6 per cent for five years, amounting in the whole to eleven hundred and seventy dollars in the silver money of the United States or its equivalent."

Claim for a Gratuity.

"The expediente sets forth in substance— "That in 1812 Alexander Scott, a citizen of the United States, residing in Washington, having been appointed a political agent by President Madison to proceed to Venezuela, then at war with Spain for independence, to look after the commercial and other interests of the United States in that quarter, delayed his departure from some

time in March till late in May, in order to secure the aid of his country toward relieving the distress and suffering of the people of Caracas and vicinity, caused by the then recent disastrous earthquake in that part of South America; that he 'obtained its consent and authority for purchasing and transporting' fifty thousand dollars' worth of provisions 'to the city of Caracas for the relief and sustenance of the suffering inhabitants;' that the provisions (which arrived in June and July) were gratefully received by Venezuela 'with many flattering demonstrations of respect and gratitude toward' Mr. Scott; that owing to heavy personal expenses incurred during and in consequence of this service (which continued till January, 1813), he was reduced from affluence to straitened circumstances. He died in 1839. Elizabeth B. Scott, his widow, who had accompanied him and shared the labor and privations of the undertaking, in 1855 sent her memorial, embodying these statements substantially, to the Venezuelan Government through the American legation at Caracas, asking, to use her own language, 'at the hands of a high-minded and honorable country such a return of reciprocal kindness as they may think fit to bestow in view of the sacrifices made.'

"No sum was named either of the expenses or losses incurred or of indemnity desired. Afterwards letters from time to time were forwarded in her behalf through said legation to that government, in one of which $25,000 were suggested as a proper sum to be paid for the services rendered. The letters, while depicting in strong colors the great benefits to Venezuela of Mr. Scott's mission, and the needs of the petitioner, claimed as a consequence from his sacrifices for that country, disclose no new material fact.

"This claim was presented to the former commission by the American minister at Caracas May 14, 1868. That was the first time the United States Government or its agency took or was asked to take cognizance of it further than to forward the matter as above stated.

"To this claim' Venezuela by her counsel demurs, upon the ground that it is based entirely on the supposed right to an exercise of gratitude by Venezuela, and does not allege any breach of contract or wrong cognizable by a tribunal of justice, this without admitting the claim of special gratitude.'

"As we understand it, a 'claim' within the meaning of the treaty implies a right on the one hand and an obligation on the

other. It has reference to some alleged wrongful conduct of the government upon which it is made. That conduct may have been active or passive; the government may have done what it ought not to have done, or refused or neglected to do what it ought to have done in respect to the subject-matter of the claim. And injury or damage must be alleged to have resulted from that conduct to the claimant under circumstances giving him the right under the treaty through his own government to demand, and imposing on the delinquent government the obligation to allow indemnity therefor.

"This claim is not of that character. No wrongful conduct is or can be imputed to Venezuela in respect to its subjectmatter. All she did was thankfully to receive a gift of provisions sent by the Government of the United States to her people in distress. The claim, if otherwise good on the face of the papers, would be obnoxious to an objection for delay in presentation for reasons stated in No. 36. The demurrer will be sustained and the case dismissed.

"It may be worth while to add a few facts about this case obtained from the public records. Having been commissioned in 1811 to go to Venezuela as agent for the Government of the United States, Mr. Scott started in March, 1812, and got as far as Baltimore, where he found there were no vessels going to Venezuela because of the then recent embargo. While thus detained in Baltimore, Congress passed the act of May 8, 1812, for the relief of citizens of Venezuela,' authorizing the President to purchase $50,000 worth of provisions and 'to tender the same in the name of the Government of the United States to that of Venezuela for the relief of the citizens who have suffered by the late earthquake.' He was directed by President Madison to proceed to that country in one of the vessels carrying the provisions and aid in their distribution. He was paid by the United States, as its agent, for his services, including $700 paid him while detained in Baltimore, $4.115, and thereafter employed in its service."

Little, commissioner, for the commission, Elizabeth B. Scott v. Venezuela No. 12, United States and Venezuela Claims Commission, convention of December 5, 1885.

The principle of this case was cited and affirmed by the commission in the case of Margaret Watson de Clark v. Venezuela, No. 19, Andrade, commissioner, delivering the following opinion:

"It appears that Margaret Clark, of the city of Baltimore, widow of Captain John Clark, who spent a considerable portion of his life and in

1847 died in the naval service of Venezuela, had been 'conceded' a pension of $20 per month by that government on account of such service. This pension was regularly paid up to May 31, 1856, to her, and thereafter to March 1, 1858, to her authorized agent, one Seth Driggs, to wit: $419.40 in cinco billetes de deuda antigua de Tesoreria sin interés, which he claimed to have lost. She died in said city November 4, 1863. The petition here was filed before the former commission by said Driggs on behalf of her heirs at law, citizens of the United States, claiming the pension from May 31, 1856, till her death, with interest. There is no evidence before us that this claim was ever presented to the Government of the United States or to its legation at Caracas beyond the fact of its consideration by the former commissioners and umpire; nor is there any evidence submitted touching the merits of the claim.

"The claim is not such as the treaty contemplates, and must be disallowed on that ground (see No. 12), even if there were no lack of evidence and no difficulty about due presentation."

"In the case of Joseph W. Roach, No. 154, Liability for Collision. the claim was for the value of the brigantine Maderia and her cargo, which was alleged to have been, on the 3d October 1863, run into by the Clyde, a steamer transport owned by the United States, and the vessel and her cargo thereby sunk and totally lost. That the collision took place in the course of a lawful voyage of the Maderia from the port of Saint John's, Porto Rico, to the port of New York; and that the Clyde was then upon a voyage for the Government of the United States, and under the charge of officers of that Government. That the collision happened entirely through the neglect and default of the officers of the Clyde. The memorial claimed damages $14,969.50, besides interest. The proofs filed sustained the allegations in the memorial as to the loss of the vessel and cargo by the default of the officers of the Clyde, and showed that the matter had been investigated by the claims commission of the War Department, and a report was made by that commission in January 1867, assessing the damages of the claimant at $11,373.98, besides interest. The only question raised in the case was as to the amount of damages to be allowed. The commission unanimously awarded the claimant $14,081."

American and British Claims Commission, treaty of May 8, 1871, Article XII. Hale's Report, 159.

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