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nation, the rights of whose people have been so extinguished, would naturally entertain; and, endeavoring to review these proceedings with the impartial eye of those utterly indifferent to the causes which produced them, the Commission has pursued this course. In relation to facts asserted by the Spanish courts, and deduced by them from testimony equivocal, donbtful, or contradictory, this Commission has never felt itself at liberty to rely upon its own opinion as to these, even where that opinion might probably have been different, if derived solely from the same evidence; nor has it permitted the introduction of new proof here, to affect Spanish decisions given under a different state of circumstances, fairly exhibited. The principle which has governed this board in all such cases has been, that if this Treaty had never been made, the Spanish Government ought uot to have been liable even for the errors of its ordinary courts (whether these were errors of fact or law) unless such error was evident, palpable, “et in re minime dubia"; when, and when only, they would cease to be mere errors, and assume the appearance of premeditated wrongs. Confiding, therefore, in all the facts asserted by the Spanish tribunals when derived from testimony equivocal, doubtful, or contradictory; confiding also in the expositions made by these tribunals of their own laws; and even yielding sometimes to the supposed correctness of Spanish adjudications, altho' founded upon assumed principles of public law of very questionable existence; this Commission has in no instance regarded a claim as good against Spain, when opposed to such decisions of its own courts, or considered a seizure as unlawful, when sanctioned by the unreversed judgment of such a forum, so deduced. And it has only pursued a different course when the determination of the Spanish tribuvals was founded upon doctrines of public law, to which enlightened nations have not generally yielded a willing assent. or upon principles in diametrical opposition to the Treaty of 1795. Having once adopted this rule of respect for Spanish adjudications in cases where this board might probably have pronouncel a different opinion, if it had felt itself at liberty to decide at all, the Commission has of course been compelled to admit as good some claims founded upon the reversal of such adjudications, concerning which equal difficulty might otherwise have been felt, if such decrees had never been passed.
“ As to the claims supposed to be comprehended within the 2nd renunciation of the 9th Article of the Treaty, the undersigned have to state that the construction given by the Commission to that renunciation has not confined it to cases denoted by the mere terms therein used. These would include none other than condemnations by “French consuls within the territory and jurisdiction of Spain.' The board, however, has considered the term 'Consuls' here introduced, as merely descriptive of the persons who for the most part exercised the French prize jurisdiction in foreign states, where it was suffered at any time to be exercised, and not as intended to confine the claims here provided to condemnations by such officers only. It has been regarded rather as an example than as a limitation; and therefore the Commission has received and allowed many claims, founded upon condemnatious in the territories of Spain, uttered by other French agents than those denominated 'Consuls,' believing that the injnry designed to be here provided for was that which was produced by the Act of Spain in suffering French jurisdiction to be exercised within her territory, no matter by what appellation this jurisdiction might be designated. So, too, the terms 'territory and jurisdiction of Spain,' according to a strict interpretation of them, might possibly be confined to places appertaining to Spain absolutely and exclusively. But the board has considered itself at liberty to regard the terms as intended to be understood in a different sense; and, construing them as meaning to declare the liability of Spain for all condemnations by French tribunals suffered to exert authority within the limits of the countries subject at the time to her power, the board has not hesitated to receive and to allow all claims for such condemnations, uttered in the city of Santo Domingo prior to the year 1801. For altho' by a Treaty concluded between France and Spain many years antecedent to this period, the Spanish part of the Island of Hispaniola was ceded by Spain to France, yet until January 1801 the possession of this territory was never surrendered to France in pursuance of that Treaty; but the Spanish power and authority continued to be exerted there as before.
“A class of cases embracing very many claims, similar to each other in some particulars, have been again ard again pressed upon the Commission in every stage of its proceeding, and preser ted in every possible aspect which the learning, ingenuity and zeal of their advocates could discern. The board, however, felt itself constrained to reject most of them. The cases alluded to are those of captures made by French privateers, where the prizes were carried within the territory and jurisdiction of Spain and, altho' not condemned by any tribunal then existing, were nevertheless there disposed of by the captors. This description comprehends a very large proportion of all the claims that have been exhibited to the board, as well in number as amount.
"It is not probably comprehended by the terms used in any of the renunciations of the Treaty, whatever latitude of construction may be given to these terms), unless it may be the 5th, and but a part of the cases referred to can be affected by this renunciation, since there are but few of them comparatively, statements of which, soliciting the interposition of the Government of the U. S., have been presented within the period, or to the functionaries, therein mentioned. This circumstance operated with great force upon the Commission in producing the opinion they have expressed. The attention of the high contracting parties had been obviously drawn to the subject of captures of American vessels made by French privateers, where the prizes had been conducted within the Spanish territory. Thé alleged facts attending many of these cases had been laid before them in statements soliciting the interposition of the Government of the U. S. And as the Treaty had notwithstanding (in the 2nd renunciation of the 9th article) expressly limited the claims on account of French captures, by the fact of French condemnation within the Spanish territory, it could not readily be conceived that so large a class of American sufferers as those whose claims were not comprehended within this 2nd renunciation, would have been left altogether unprovided for, unless of purpose. Many considerations operated to confirm this opinion. Spain most probably never would have consented to acknowledge, or the U. S. have pressed, her liability for acts done by France, unless these acts were done in violation of some duty which Spain had taken upon herself, and the observance of which forbade her to suffer such acts to be performed. None could contend rightfully, however, that it was any violation of the general duties which one nation owes to any other, to suffer the cruisers of a co-belligerent and allied nation (as France then was) to send their prizes into, and to use, her ports and harbours for all purposes of safety or convenience. And if Spain had contracted any particular obligation with the U. S. not to suffer this to be done in relation to their vessels, which might be captured by any other nation, such obligation was to be sought for in the Treaty of 1795. That Treaty, however, merely provided that each party should endeavor by all means in their power, to protect and defend all vessels and other effects, belonging to the citizens or subjects of the other, which should be within the extent of their jurisdiction, by sea or by land; and that they should use all their efforts, to recover and cause to be restored to the right owners, their vessels and effects, which might have 'been taken from them, within the extent of their said jurisdiction. The latter part of this provision obviously applies to vessels and effects taken within the extent of the territories of the contracting parties, and has no application therefore to cases like these, in which the captures were all made on the high seas, or beyond such jurisdiction. And the former part, wbile it imposes upon the contracting parties the obligation to endeavor by all means in their power to protect and defend all vessels and other ettects belonging to the citizens or subjects of either, which should be within the extent of the jurisdiction of the other, by sea or by land, neither binds them to dispossess a belligerent captor of his prize, nor to exert the power of wresting from the court of such captor the high and responsible authority of deciding upon the legality of the capture. The vessels and other effects belonging to the citizens or subjects of either of the contracting parties, captured ‘jure belli' by the cruisers of any third nation, were to be protected and defended, while they continued to be within the territories of the other; but the captor might leave the territory to which he had resorted whenever he thought fit, taking with him his prize, even before its condemnation anywhere. And if this was condemnod by any competent tribunal before it left such territory, it thereupon ceased to belong to its former owner, whose rights being extingnished by such condemnation, the casus fæderis' then ceased to exist, and the obligation to apply.
"This interpretation of the Treaty of 1795 induced the Commission to reject all cases of French captures, where the prize was carried within the Spanish territory, in which there existed regular French condemnations, by competent tribunals, within the French territory, and where no act was done or suffered by Spain prior to such condemnation, contrary to her obligation to protect and defend the property while it continued American once within her jurisdiction. There remained, however, a large number of claims of the description referred to above, in which no French condemnations were produced, and to which the rule last mentioned would not apply. The greater part of these grew out of voyages undertaken by citizens of the U. S., to or from the ports of Hispaniola, then commonly designated as Brigand ports. As to such of these as were undertaken after the commencement of the act of Congress passed on the 28th of February 1806, suspending the commercial intercourse between the U. S. and these ports, the Commission could feel no hesitation. It has never considered itself bound to regard those as citizens of the U. S., intended to be protected by any part of this Treaty, who engaged in a commerce forbidden by the laws of their own country, or who sought to shroud their true character or pursuits by any false and fraudulent covering whatsoever. This rnle of exclusion, however, the undersigned are pleased to be able to state, bas not applied to many of the cases before them. Another rule, furnished by this Treaty itself, has been held to exclude all the other claims which grew out of voyages to the ports of Hispaniola, closed by the French arrêtés of the 22nd of June and 9th of October 1802 and March 1st, 1804, which voyages commenced after a notice of those arrêtés was had in the ports of the United States. The Commission, considering the ancient state of things as remaining unaltered, and the sovereign power of France over her colony of Hispaniola as still subsisting, at the time these and other decrees were uttered by that sovereignty, which forbid all trade with the ports described, felt itself bound to regard all such voyages (to or from these prohibited ports) illegal as against France. France undeniedly possessed the legitimate right of enforcing her own laws, so far as they related to her own dominions, and none could claim the privilege of violating them. Whatever may have been the loss imposed, therefore, upon an American citizen, for his actual or intended violation of these known laws, he has no just cause of complaint against the power he meant to offend; nor would his own state properly aid or in any way support the cause of such of its guilty citizens, by reclamation against the sovereign offended by his misdeed. And if for these reasons the sufferer or his government had no just cause of complaint against France, the actual author of the loss, it would be difficult to show how Spain could be held accountable therefor by either. Nay, the 14th article of this Treaty itself seemed to the Commission conclusive upon this point. Why should Spain thereby require to have, and the U. S. agree to present to her, an authentic statement of the claims provided for by this Treaty for the injuries they suffered from France, that Spain may avail herself of the same, it, as the argument supposes, France bad done no injury and was not accountable to any for that which her cruisers had done in this respect?
“These principles, altho' they operated to the exclusion of most of the cases embraced within the description above referred to, did not apply to all the claims on account of prizes made by French privateers, which were said to have been carried and disposed of within the territory and jurisdiction of Spain, without any condemnation. Other cases remained of fair and proper voyages, forbidden by no law whatever, and growing out of an open and perfectly innocent trade. For the protection and defense of such, Spain was bound unquestionably to exert all the means in her power while within the extent of her jurisdiction. And wheresoever any sale, or other
mproper disposition of prizes of this description, has been proved to be made within the Spanish territory, to the injury of the right owner, being a citizen of the U. S., and within the knowledge of any proper officer of the Spanish Government, the Commission bas held Spain liable, and therefore allowed the claim. In order to fix such liability npon any sure and reasonable basis, however, the board has considered it right to require of the claimants in all cases, that the transaction complained of was made known to some proper officer of the Spanish Government, and its interposition required, except where the occurrence was one so open and flagrant as to furnish evidence in itself that it must have been known to and approved by the Spanish Government of the place.
“In adjusting the amount of the claims allowed, the Commission has adopted these principles. Regarding fund provided by the Treaty as designed to indemnify claimants for actual losses sustained, and not to realize profits which might or might not have been made, the board has generally taken up the voyage at its commencement, and allowed the value of the vessel and cargo at that time. To the value of the vessel, two-thirds of a fair freight for the passage in which the loss occurred has been added. A fair premium of Insurance for the risk of such a passage has been also added to each of these insurable subjects. And the costs and expenses, incurred in defraying their rights, have been allowed to all claimants who have paid such, and bave offered any evidence from which the sums so paid might be inferred. Such has been the general mode of estimating the quantum of loss to be indemnified, in most of the cases where the loss has been total. In those where the loss has been partial, and in a few where the loss has been total, to which the rules now stated could not apply, different principles of adjustment analogous to these have been resorted to, the board taking care to modify these principles to suit the facts existing in each particular case. Thus a reasonable charter has sometimes been given in lieu of freight strictly so-called, where the precise voyage was not fixed. And a fair demurrage has been applied as the standard of damage produced by the illegal detention of a vessel. And here the undersigned feel it their duty to state that more than one moiety of the amount of all the claims allowed, and a larger proportion of those rejected, have been preferred by underwriters. As the loss by them complained of resulted directly and immediately from their own contract, and was to be traced to the illegal acts of others only remotely through that contract; and as, for entering into this contract, they had received a valuable consideration, in the premium paid for taking upon themselves the very risk which had produced their loss, the Commission at a very early stage of their proceeding decided that no underwriter as such had any claim upon this fund provided by the Treaty. The claims of American citizens, therefore, who came before the board claiming for the losses they had sustained by insuring the property of foreigners, which had been illegally taken by France or Spain, were never received. And it was only when the American citizen, who had sustained a loss provided for by the Treaty, having been indemnified against this loss by an American underwriter, had abandoned, or was bound to abandon and assign his interest in the subject insured to the assurer, that the claims of underwriters have ever been received. But, claiming as assignees of a party who had a good claim, these their derivative claims have always been allowed for the sum by them insured and paid, where that sum did not exceed the true valne of the subject insured, according to the principles settled by the board, for ascertaining this value, as above stated.
“In making such allowances to underwriters, the Commission was well aware that its effect would be to allow them more than they had lost, by the amount of the premium received from the party insured, which premium he had voluntarily paid anıl must have lost in any event. So, too, in making the allowance of freight, the Commission was well aware that the full wages of seamen had not been paidl, probably, in any of the cases where such freight was given. But, in these and many other cases which occurred, the board, having ascertained the full amount of the loss, distributed this amount so ascertained amongst the different parties claiming it before them, and seeming to have a right to receive it (no matter in what character), without deciding, or believing itself possessed of the authority to decide, upon the merits of conflicting claims to the same subject. To whom of right the sum thus awarded when paid may belong, or for whom, how, or in what degree, the receiver ought to be regarded as a Trustee of the sum received, were questions depending upon the municipal laws of the different States of the Union, the application of which to the facts existing in any case the board did not feel itself authorized to make, and therefore abstained from instituting any enquiry as to the facts necessary to such a decision. These remarks the Commission think it proper thus to make, lest their award may be considered as barring and finally settling pretensions into wbich this board have in truth neither made, nor believe itself authorized to make, any examination whatever; but have purposely left open, for the adjudication of others, who will have better means of ascertaining the facts.
“ Having thus stated the general principles which the Commission has thought it right to adopt and to apply, in receiving, examiving, and deciding upon the amount and validity of all the claims that have been exhibited before it, the undersigned, with a view of showing what these claims were, have caused to be subjoined sundry schedules. The first of these, marked A, exhibits a list of all the memorials which have ever been presented to the Commission, except those which merely asked for reexamination. In this list the memorials are numbered progressively from 1 to 1859, in the order in which they were presented. It contains the name of the memorialist and the name of the vessel referred to (when sach is the case), and designates which of these memorials the Commission refused to receive for examination, for the reasons herein before stated.
“ The second schedule, marked B, exhibits a list of all the memorials aforesaid which were received and examined. In this list these memorials are distinguished by the numbers annexed to them in the schedule A, and are arranged under the names of the different vessels to which they refer, where they do so refer, and by that of the memorialists where no particular reference is made to any vessel. In this list are also designated all those memorials which the Commission refused to allow as valid, for some of the reasons herein before stated.
“ The third schedule, marked C, exhibits a statement of the several sums allowed for the loss sustained in each of the cases mentioned in the schedule B, and therein not noted as having been disallowed, together with the aggregate amount of all these several allowances, viz: the sum of $5,454,545. 13, and likewise the different memorialists to whom that sum has been awarded and distributed.
“And the fourth schedule, marked D, exhibits a list of the sums allowed in schedule C, distributed ainongst the different parties in interest, or their proper representatives, according to their different claims. These sums of course correspond in their amount with those stated in the preceding schedule; and this schedule, marked D), the Commission exhibits as its final award, in which is ascertained the full amount and validity of all the claims exhibited to it, for which Spain was liable to citizens of the U. S., and to which the renunciations contained in the Treaty of 1819 extend.
“In order to enable the U. S. to comply completely with the provisions of the 14th Article of this Treaty, and to present to Spain an authentic statement of the prizes made from citizens of the U.S. by French privateers, for which injuries Spain was regarded by the Commission as having been liable, the undersigned have annexed hereto a fifth schedule, marked E (extracted from that marked C), in which is contained a list of all the vessels of the U. S. captured by French privateers, for which any allowance has been made by this board, and of the true value so allowed. For the particulars of such captures, the Commission begs leave to refer to the vouchers and documents produced before the Commissioners, relative to the claims on this account. These vouchers and documents, together with