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of that article, as to what claims were to be considered as comprehended within its renunciations.
“By the third article, Spain and the United States reciprocally renounce all claims which either may have upon the other, of whatever class, denomination or origin, they may be, from the 224 February 1819 until the time of signing the convention. No enumeration of these claims is afforded by the treaty. Language thus broad and comprehensive admitted of the greatest latitude of interpretation, and admonished the undersigned of the high responsibility involved in affixing to it a legitimate construction.
“This question occasioned to him the most serious embarrassment, as upon its right determination must depend the fact whether the fund obtained under the convention from Spain should prove available or delusive as an indemnity to rightful claimants, or be frittered away among the mass of illegitimate pretenders.
“That a general error existed in the public mind as to the right construction of the third article was evident to the undersigned, from the very miscellaneous character of the claims preferred for his consideration-presenting every imaginable shade of grievance and injury, whether springing from contracts, spoliations, or the enforcement of Spanish municipal laws. This error no doubt had its foundation in the latitude of phraseology employed in the third article, undefined by any specification of the renunciations it was meant to embrace.
“The undersigped is aware that he must have disappointed the hopes of many confident claimants, in determining, as he did, to place a restrict ive interpretation upon this article. On this, however, as upon all other questions of doubt, involving principles of decision, the undersigned took as guides to a right judgment the laws of nations, the stipulations of treaties between the United States and Spain, and the correspondence between the two governments, which led to the conclusion of the convention, as far as they were applicable to the cases before him, and never permitted himself to range in the wide field of unrestricted opinion. This course was dictated not only by a just distrust of his own judgment, but by the more important consideration, that he was unaided by the argnments of counsel. or by the cooperation of an assistant commissioner, and that there was no appeal from his decisions.
“The construction adopted by the undersigned restricted the broad language of the third article to the recognition of such cases only, as would have formed valid reclamations against Spain, on the part either of the United States or her citizens, had the convention of 17th February 1834 never been concluded.
“ To establish, therefore, the validity of a claim, it was necessary to show that the aggrieved party was a citizen of the United States, and entitled to the protection of his government, at the time of the wrong complained of; that the claim had never become the property of a foreigoer, by which its national character was considered as forever forfeited, that the wrong complained of was a clear violation of the laws of nations or of treaty stipulations between the United States and Spain; that it was autborized by Spain, or directly sanctioned by her authorities, civil, military, or judicial; that the injury was not the loss of erpected gains, and that the claim remained in full force against Spain at the date of the.convention of the 17th of February 1834.
“ Under this construction a class of claims was admitted which deserves a particular notice, not only on account of the principles involved, but on account of the magnitude of the claims themselves.
“These were claims which had their origin before the 22d February 1819, the date of the Florida treaty, and were included within some of the renunciations of the ninth article of the said treaty-where it appeared the claimants had preferred their claims before the board organized under the said treaty; that they were in want of documents, which were in the possession of Spain, indispensable to establish their claims before said board; had made proper application, in the mode designated by the said treaty, to obtain said documents, but had failed to obtain them owing to the omission of Spain to furnish them within the time prescribed for the action of the board, in violation of the obligations imposed upon her by the eleventh article of the Florida treaty, whereby the claims were disallowed by the commissioners acting under that treaty.
“ The renunciations of the convention of the 17th February 1834, it is true, are limited to cases since the 22d February 1819, and the claims in question were renounced by the United States, by the ninth article of the Florida treaty. But as Spain obligatod herself to the United States, by the eleventh article of that treaty, to furnish the documents and elucidations, when properly demanded, which should be necessary for the adjustment of these claims by the Florida board, the failure on her part to furnish them, whereby the claims were rejected, was considered as constituting a valid reclamation against her on the part of the United States, as trustee for and in behalf of these very claimants. The fund obtained under the convention of February 1834 was given by Spain in part to remunerate the losses occasioned by her breach of the eleventh article of that treaty. These claimants were the aggrieved parties, and, to the extent of their losses, the equitable owners of said fund. The right of reclamation for this breach accrued to the United States since the 22d of February 1819, and enured to the benefit of these claimants as rightful participants of the fund; so that by adopting the construction referred to, the language of the third article of the convention, which confined its renunciations to a designated period of time, was reconciled with the justice and equity of the claims themselves. This opinion, moreover, was fortified by the correspondence between the two governments, which induced this convention, by which it will appear that the United States preferred this class of cíaims to Spain for indemnification, and enforced her demands with a confidence of manner which attested the sincerity of her motives and the justice of the claim.
" While, however, this class of claims was recognized as embraced by the third article of the convention, it was held that, to entitle them to be allowed, they must possess the following qualifications, viz.: That the claimant had submitted his claim, in the proper manner, to the Florida board; that it was disallowed for the want of documents and elucidations which were in the possession of Spain, and which were indispensably necessary to establish its validity; that a specific application had been made to obtain them, through the channel designated by the Florida treaty; and that our government had made a demand upon Spain for them, within a reasonable time before the expiration of the time limited for the sitting of the Florida board; and finally, that it was not only embraced by some of the renunciations of the ninth article of the Florida treaty, but that it was a good and valid claim under that treaty, and as such ought to have been allowed by the tribunal which adjudicated claims under the treaty, had the required documents been furnished.
“But few, however, of this class of claims were presented to the undersigned for consideration, and not more than one or two possessed the requisite qualifications to entitle them to a favorable reception.
"The next stage in the progress of the commission was the examination of memorials on their proofs. Each claimant was required to produce the highest evidence, which the nature of his claim admitted, to establish the allegations of his memorial. Where such evidence could not be produced from loss or accident, and from no fault imputable to the claimant, or, where any reasonable effort had been made to procure it, without avail, secondary evidence was admitted with very great caution.
“In every case resting upon the condemnation of Spanish tribunals, the decree of condemnation properly authenticated was considered as indispensable evidence, unless where it indubitably appeared that timely and vigorous efforts had been made to procure it, but without success.
“Although the undersigned recognized the principle of public law as well ostablished, that the captor's nation is not to be held responsible but for the decisions of its highest tribunals, appointed to investigate questions of prize of war, yet when it appeared to be the uniform course of the Spanish tribunals of every grade, during the period of time in which the cases arose that came under his consideration, to condemn the property of our citizens as prize of war, upon the most groundless and friyolous pretenses, in contravention of well-established principles of international law and treaty stipulations applicable to the cases, and in utter disregard of those forms of procedure, adopted by the universal usage of civilized nations, to secure a fair hearing to claimants, and to load an appeal with costs too oppressive to be borne, he did not require the claimant to show that he had prosecuted an appeal from the inferior to the supreme tribunals of Spain, as indispensable to the validity of his claim. Cases did sometimes occur, although rarely, where the proceedings of the Spanish courts were marked by a just regard to the claims of humanity and public law. These exceptions established the propriety, inculcated by the principles of international law, of confiding in the decisions of the legitimate prize tribunals of Spain, where nothing appeared to impugn them for palpable errors of law or fact. But, where it appeared that there had been “a refusal of justice---palpable and manifest injustice, and a gross violation of forms,” in cases involving little doubt, those decisions were regarded only as colorable, and the case was thrown open for a full investigation upon its merits.
“ The proofs filed with memorials under the same spoliations, were always collated with each other, as well as with any evidence that was furnished from the Department of State; and cases of different spoliations which had their origin about the same period of time, and under similar circumstances, were often compared with each other, with the view of testing the justice of the complaint, and guarding against imposition or mistake.
"Notwithstanding all this precaution, the undersigned cannot flatter himself but that his unaided research has been fraught with a multiplicity of error. His aim has been to do justice and equity where he was not too strongly overruled by the law of the case.
“The undersigned next proceeded to ascertain the amounts due to the respective claimants, whose claims he had allowed as valid. In adjusting the amount to be awarded to each, he adopted as a controlling principle, that the fund obtained by the convention with Spain was intended only as an indemnification for actual losses sustained, and not as recompense for the loss of erpected profits or gains. The rules and principles established for making up the awards will be found recorded fully and at large in the journal of his proceedings, under date of the 10th of July 1837, to which he here begs leave to refer. They were those which had been generally adopted by other successive boards of a like nature, had been reported to the government from time to time, and were supposed to be sanctioned by its acquiescence, as no instance was known to him in which they had been repudiated. That his own judgment did not concur in all these principles he is free to avow, but being avouched by the high authority of so many distinguished jurists, with the implied approbation of the government, they acquired the force of precedents which he did not feel himself at liberty to disregard.
"A brief summary of them will only here be presented.
“As to vessels, their actual cost to the owners was allowed, when it could be ascertained; and where it could not, their value at the commencement of the voyage, deducting a reasonable percentage for subsequent deterioration. The tables of Alexander Stewart, Junior, of Philadelphia, compiled at the instance of the French commission, were generally used to ascertain this deterioration.
“ To the value of the vessel was added two-thirds of a fair freight, where the voyage was not completed, with insurance to cover.
“In cases of improper and unreasonable detention, allowance was only made for the wages of the crew, expenses for their support, and damages incurred by the vessel during such detention.
"As to the cargo, the invoice value was taken to be the true value in all cases, save where it was seized on shore, at the place of destination, to which was added the usual shipping charges, the customary brokerage on the purchase of the goods, and a reasonable or fair premium of insurance to cover, on the particular voyage. When seized on shore, at the place of destination, and the market price could be satisfactorily ascertained, that was allowed, as the true criterion of valne; if it could not be ascertained, recourse was had to the actual cost and charges.
“Charges and expenses in defending the property, where reasonable evidence was afforded of actual payment, were also allowed. In the distribution of the amounts awarded under each spoliation, the sum which any claimant had received under contracts of insurance was deducted from the gross amount awarded him, and where insurers were claimants they were generally allowed what they had actually paid, except in cases of loss especially adjusted between the parties, and then the intention of the parties at the time of settling the adjustment was carried into effect.
“Having thus stated the general principles by which the undersigned was guided in deciding upon the validity and amount of claims presented for his consideration and the distribution of the awards, he herewith subjoins a descriptive list of the several books prepared under his direction, in which his proceedings have been recorded, and which accompany this report.
*A. Journal of the proceedings of the board. “B. A list of all the memorials presented, numbered from 1 to 102, and a list of awards,
“C. A list of the several awards made by the undersigned, arranged under the heads of the vessels, which were the subjects of spoliations, or from which the property had been seized, or in which it had been transported.
“D. A book of Orders' published for the information of claimants.
“From these it will appear that the number of memorials was one hun. dred and two; that the number of awards (was 68, there being 34 rejections]; and that the amount awarded to claimants under the rules and principles adopted by the commissioner for adjusting awards is four hundred and sixty-six thousand eight hundred and nine and Dollars, to which was added by order of the commissioner (see order of 31st January 1838) twenty-eight and a-half percentum, making the total amount awarded to claimants, five huudred and ninety-nine thousand eight hundred and fifty is. Dollars. “Approved.
“ LOUIS D. HENRY. "Attest: “ JOHN J. MUMFORD, Secretary.”
Of the 34 claims that were rejected, 5 were disallowed Rejected Claims. for invalidity, 15 for want of proof, 2 for defective
averments, 3 for defective averments and want of proof, 3 for defective averments and invalidity, and 1 for want of proof of citizenship and for defective averments, while 3 were withdrawn. One was rejected for special reasons, as follows: “No. 102. Ysabel Leonard and John B. Leonard, Executors of John Leonard.
“This memorial was filed on Saturday 27th January 1838, at $ past 3 o'clock P. M., being only four working days before the expiration of the Commission. The Memorial was considered and received because, althouglı it was filed at so late a day, the claimants showed good and sufficient reasons why it was out of their power to file it at an earlier day. The ground upon which the claimants rested their right to a reclamation against. Spain was the entire ruin or breaking up of John Leonard's vast commercial establishment in Spain, by the seizure or seqnestration of his property, under a Royal Order of the King (which commissioned a special court or Judge to entertain an action in behalf of one Thorndike, against the Testator Leonard, for damages which he (Thorndike) alleged he had suffered at the hands of Leonard, by reason of false and groundless prosecutions instigated against him by Leonard), in contravention of the 7th article of the Treaty of 1795.
“The proofs in this case were voluminous but yet imperfect, owing po doubt to the confusion into which Mr. L.'s papers were thrown by his death. This circumstance, together with the want of time at the closing hours of the Commission duly to consider the various and intricate questions connected with the investigation of the claim, have prevented the Commissioner from forming as confident an opinion as was desirable, upon the merits of the case. He had only time to record this brief memorandum of the reasons for disallowing the claim. The principal questions to be determined were, whether it were competent for the King of Spain to appoint a special tribunal to adjudicate a controversy between two citi. rens of the United States, notwithstanding the 7th and 20th articles of the Treaty of 1795. Next, if it appeared that the King had done so, at the instance of the Minister of the United States, then resident near his Court, whether the United States were not estopped from setting up any plea against the jurisdiction of the court, and of course from making any reclamation against Spain on that account. And lastly, whether the proceedings of this court had been duly conducted under the authority of law and according to its due course, in the same way that justice would have been dispensed between citizens of Spain.
“Being of opinion from the evidence submitted to him that this court had been appointed at the special request of the Minister of the United States, and therefore that our Government could not impugn its legality, the Commissioner could not, for this reason, consider that this claim would have been valid against Spain. If, however, the Spanish tribunal were duly constituted, and Mr. Leonard aggrieved by its proceedings, yet, as his representatives have not furnished an exemplification of its whole proceedings and decrees, in the suit between Thorndike and Leonard, to enable the Commissioner to pronounce upon their regularity and legality, the Claim must be considered as invalid under the convention of 17th February 1834. The claim is therefore disallowed. “Jany. 31, 1838.”
While the bill to carry the convention into effect Payments on the
was pending before the House of Representatives, Mr. Awards.
Cushing said “that he desired to avail himself of this occasion to express his strong sense of the justice and honor exhibited by the Government of Spain in the treaty of which this bill was the consummation. In the midst of national calamities, which she met with her characteristic fortitude, with a deadly civil war raging in her bosom, and weighed down with financial embarrassments, Spain has acknowledged and satisfied the claims of our citizens, in a spirit of manly promptitude and frankness, in striking contrast with the conduct of some other European powers in similar matters.” "The long continuance of the internal condition described by Mr. Cusbing caused a suspension of payments due under this treaty. In his message to Congress of December 7, 1841, President Tyler said: “The failure on the part of Spain to pay with punctuality the interest due under the convention of 1834, for the settlement of claims between the two countries, had made it the duty of the Executive to call the particular attention of that government to the subject. A disposition has been manifested by it, which is believed to be entirely sincere, to fulfil its obligations in this respect so soon as its internal condition and the state of its finances will perinit.'
"Mr. Buchanan, when Secretary of State, agreed to receive an annual payment of $30,000 at Havana in full of the interest on the principal provided for by the convention, less fifteen hundred dollars for what was called prompt payment.
When the payment of 1862 was about to be made, the question arose whether it should be demanded in coin or whether we were bound by the act of Congress of the 25th of February 1862 to accept the same in the currency of the United States. The latter alternative was reluctantly acceded to.'”
Davis's Notes: Treaties and Conventions between the United States and other Powers, 1776-1887, p. 1387.