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

Early 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 $2,662,280.36). (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. )

There were three vessels-the Mercator, the Henry, and the Hendrick— alleged 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.)

On the 26th of July 1828, Mr. Wheaton addressed to Count Schimmelmann a "confidential and private note," in which, after quoting the assurances given by Mr. De Rosenkrantz to Mr. Erving on the 8th of May 1811, that the Danish Government would be disposed to "take into just consideration" the claims of the United States when a general maritime peace should have been restored, he proposed, for the purpose of terminating the claims, a joint commission, or, if that plan should be repugnant to the Danish Government, a settlement of the claims en bloc. Soon afterward Mr. Wheaton brought to the notice of Count Schimmelmann the cases of the American ships Commerce and Hector, which were captured by a Russian squadron in the Mediterranean in 1807 and in respect of which the Emperor of Russia had made reparation, though it seemed that one of the ships had been regularly condemned by a prize court. Great delay, however, was encountered by Mr. Wheaton in having the subject of indemnities brought before the King-a delay partly due to the festivities attending the marriage of the King's daughter. Nevertheless, on the 29th of December, Count Schimmelmann made known the fact that His Majesty, notwithstanding the rule of the Danish monachy to admit no modification or annulment of a sentence pronounced by the judicial authorities, unless in the case of a pardon, had ordered a report to be submitted to him touching the alleged injuries, in order that he might form a correct judgment on the subject. As the result of this measure, the King in the course of a few days appointed Count Schimmelmann and Mr. De Stemann, the minister of justice, as commissioners with full powers to treat; and the register of prize proceedings and sentences, which had previously been exhibited only confidentially, was opened to Mr. Wheaton's official inspection.

In the summer of 1829 Mr. John Connell, who was agent for a large number of claimants, went to Copenhagen, and Mr. Wheaton was authorized to consult with him in regard to a compromise, and particularly to be guided by him in the settlement of the claims which he represented. The claimants as well as their government had apparently come to the conclusion that the payment of a lump sum offered the best if not the only hope of obtaining an indemnity. Mr. Wheaton had numerous interviews with the members of the Danish cabinet, various informal conferences with Count Schimmelmann, and several official meetings with the Danish commissioners. On the 27th of August 1829 the Danish commissioners offered the sum of 500,000 marks banco of Hamburg, or $175,000, a mark banco of Hamburg being worth about 35 cents. Mr. Wheaton rejected this offer, and proposed the sum of 3,000,000 marks banco of Hamburg, or $1,050,000. As the Danish commissioners, in spite of the apparant concessions of the King, reverted to the doctrine that the decisions of their prize courts were conclusive, besides maintaining the objections of their government to a joint commission, this wide divergence of views as to the amount for which claims might be compromised seemed to leave little room for a rational hope that a settlement could be effected. Indeed, Mr. Wheaton informed Count Schimmelmann that he considered the negotiations as substantially terminated. Nevertheless, he determined to place on record a formal exposition of the case of the United States, which should cover all the points in controversy and leave as little occasion as possible for future argument. This he did in a paper of great power, which he presented to the Danish commissioners on the 24th of November,

Mr. Wheaton's
Argument.

In this paper Mr. Wheaton, after reviewing prior efforts to effect a settlement of the claims, proceeded in the first place to discuss the question of the conclusiveness of the sentences of prize courts. As the basis of this discussion he took the statement of the Danish position made by Count Schimmelmann to Mr. Hughes, in an official note of August 17, 1825. In this statement Count Schimmelmann declared: "The sentences by which vessels, bearing the flag of the United States, have been released or condemned by the prize tribunals or high court of admiralty, are without appeal, and can not, without derogating from that which has been established from the remotest times in the Danish monarchy, be altered or annulled; no more than (might be) sentences pronounced by the courts of justice, and by the tribunals of civil and criminal cases; and the King, during his reign, has followed, in every case, this invariable rule, and has not exercised his supreme power, excepting to mitigate penalties prescribed by sentences, conformably to the laws, or to pardon." Mr. Wheaton combated this statement as proceeding "upon an erroneous conception, both of the nature of prize jurisdiction as established and exercised under the law of nations, and of the demand which has been made by the Government of the United States in respect to the judicial proceedings now in question." It might, said Mr. Wheaton, be "the law of the Danish monarchy that the sentences of the ordinary civil and criminal tribunals, constituted under the municipal code of the country, and exercising jurisdiction over its own subjects, are not reexaminable by the supreme power of the state; but it does not therefore follow that the sentences of the prize tribunals are to have a similar conclusive effect upon foreign states and their citizens." Nor was such an effect to be attributed to those sentences merely because, in the arrangement of the courts of justice of Denmark, the appellate jurisdiction in matters of prize was invested in the same court of last resort as that in cases arising under the muncipal law. Though there was a general presumption, which ought not to be lightly disregarded, that the sentences of the ordinary municipal tribunals of a country were correct, yet it did not always prevent a foreigner from invoking the aid of his government to obtain redress for a sentence plainly against right.1 But even supposing the unjust judgments of municipal tribunals to be conclusive, there was evidently a wide distinction in this respect between an ordinary tribunal proceeding under the municipal law, and the same or another tribunal sitting in a belligerent state and professing to administer the law of nations to foreigners as well as to subjects. "The ordinary municipal tribunals," said Mr. Wheaton, "acquire jurisdiction over the person or property of a foreigner by his consent, either expressed by his voluntarily instituting the suit, or implied by the fact of his bringing his person or property within the country. But when the courts of prize exercise their jurisdiction over vessels and cargoes at sea, the property of foreigners is brought by force within the territory of the state by which those tribunals are constituted." The institution of prize tribunals, said Mr. Wheaton, instead of being intended to exempt the sovereign of the belligerent nation from responsibility, was designed to ascertain and fix

Grotius, De Jur. B. ac. P. lib. 3, cap. 2, sec. 5; Bynkershoek, Quaest. Jur. Pub. lib. 1, cap. 24; Vattel, liv. 2, ch. 18, sec. 350.

that responsibility. The sovereign's cruisers were responsible to him alone; and so long as seizures were regularly made, upon apparent grounds of just suspicion, and followed by prompt adjudication in the usual mode, and until the acts of the captors were confirmed by the sovereign in the sentences of the tribunals appointed by him to adjudicate in matters of prize, the neutral had no ground of complaint, and what he suffered was the inevitable result of the belligerent right of capture. But the moment the decision of the tribunal of last resort had been pronounced against the claimant (supposing it not to be warranted by the facts of the case, and the law of nations as applied to those facts), and justice had thus been finally denied, the capture and the condemnation became the acts of the state, for which the sovereign was responsible to the government of the claimant. In the celebrated case of the Silesian loan, the King of Prussia stopped the payment of interest on a loan due to British subjects as an act of reprisal for the unjust condemnation of Prussian vessels by the British prize courts, and an indemnity was paid by the British Government for the condemnations.1 Under the treaty or 1794 between the United States and Great Britain, a board of commissioners was constituted to determine the claims of citizens of the United States, growing out of the capture and condemnation of their vessels and cargoes under the authority of the British Government. In the course of the proceedings of the board, an objection was made on the part of the British Government to the consideration of any case in which the sentence of condemnation had been affirmed by the lords of appeal in prize causes. This objection was overruled by the board, and the indemnities that were awarded in such cases were promptly paid by the British Government. By the treaty of 1795 between the United States and Spain a similar commission was constituted for the purpose of determining claims on account of captures and condemnations under the authority of Spain, and by this commission the sentences of the Spanish admiralty tribunals were not considered as an obstacle to the decision of the claims "according to the merits of the several cases, and to equity, justice, and the law of nations." Again, provision was made by the Florida treaty for indemnifying citizens of the United States for unlawful seizures by Spanish cruisers, and it was never so much as doubted by the commissioners appointed by the United States to distribute that indemnity, that they had authority to inquire into cases where the capture had been affirmed by the final decision of the competent tribunal of Spain. Further examples, continued Mr. Wheaton, it would be superfluous to give. Although the theory of the law of nations supposed the prize tribunals of the belligerent to decide exactly as if they were established by and sitting in a neutral countrythat is to say, conformably to the public law common to both countries yet it was common knowledge that in practice such tribunals took for their guide the prize ordinances and instructions issued by the belligerent sovereign, without stopping to inquire whether they were consistent with the paramount rule. This being so, the obvious consequence of considering their sentences as conclusive would be to invest the belligerent state with legislative power over the rights of neutrals, without regard to the rules of the law of nations. Such were the consequences which would

1 Vattel, liv. 2, ch. 7, sec. 85.

inevitably flow from such a misapplication of the doctrine of the conclusiveness of admiralty sentences. That they were conclusive on the question of prize or no prize, so as to effect a transfer of the property in the thing condemned from the original owner to the captor, was a principle of public law undeniable in itself and necessary to peace and commerce. It seemed to have been supposed by the Danish Government that the demand of the United States was for a judicial revision and reversal of the sentences of condemnation which had been pronounced in its tribunals, as the United States believed, in derogation of the public law. This supposition was erroneous. The demand of the United States "was for the indemnity to which the citizens of the United States were entitled in consequence of the denial of justice by the tribunals in the last resort, and of the responsibility thus incurred by the Danish Government for the acts of its tribunals." Having thus endeavored to remove the preliminary objection of Denmark to the claims of the United States, Mr. Wheaton next proceeded to examine the allegations on which the seizure and condemnation of the vessels and cargoes sailing under the American flag were made and had been attempted to be justified. Following the classification made in his instructions, he said that these allegations were "principally three: 1. The possession of false and simulated papers by which, it was alleged, an American character was stamped on British property; 2. Sailing under British convoy whereby it was alleged our vessels lost the immunities of our flag and subjected themselves to be treated as British property; and 3. The possession of French consular certificates of origin after the French consuls were forbidden to give them, except to vessels sailing direct to French ports." As to the first of these allegations, Mr. Wheaton declared "that the American Government, far from affording any favor or protection to the fraudulent assumptions of its flag during the late maritime war in Europe, would have been the first to denounce and punish them." Into the particular cases in which the Danish authorities alleged that such a use of the American flag was made he would not enter. These cases had been fully discussed by Mr. Erving whose arguments could not, said Mr. Wheaton, in his opinion, be satisfactorily refuted. He would therefore proceed to consider the grounds on which the seizure and condemnation of property confessedly belonging to citizens of the United States had been attempted to be justified by the Danish Government.

This involved, said Mr. Wheaton, the second Danish allegation, an allegation which had been applied to the cases included in the list (No. 1) inclosed in Mr. Erving's note to Mr. De Rosenkrantz of June 6, 1811. In these cases the property was condemned under the royal ordinance of March 28, 1810, clause 11, Article D, which declared to be "good and lawful prize such vessels as, notwithstanding their flag is considered neutral as well with regard to Great Britain as to the powers at war with the same nation, still, either in the Atlantic or Baltic, have made use of English convoy." Under this clause, said Mr. Wheaton, vessels and cargoes were condemned by the high court of admiralty, though in most if not in all such cases there was satisfactory proof that the vessels had been compelled to join the British convoy, and though the ordinance in question

'Mr. Clay, Sec. of State, to Mr. Wheaton, May 31, 1827, H. Doc. 249, 22 Cong. 1 sess. -11

5627-VOL. 5