the Danish scepter." In Article IV. they were described as "the claims hitherto preferred, or which may hereafter be preferred, relating to the seizure, detention, condemnation or confiscation of the vessels, cargoes, or property whatsoever, which in the last maritime war of Denmark have taken place under the flag of Denmark, or in the states subject to the Danish scepter." These descriptions were construed by the United States as excluding the claim for the Bergen prizes.' In 1848, however, Congress authorized the Secretary of the Treasury to pay to the legal representatives of Jones, and of the officers, seamen, and marines, their just proportions of the value of the prizes, adjusting their claims on principles of justice and equity, and deducting from Landais's share the sum which he received under the act of 1806.2

H. Ex. Doc. 264, 28 Cong. 1 sess.

Act of March 21, 1848, 9 Stats. at L. 214; Lawrence's Wheaton, 3 ed. note 16, p. 41.

"SIR: In answer to your letter of the 1st instant, requesting permission, on behalf of Mr. Tennant, to withdraw from the Department of State the papers filed by him with. the Commissioners under the Danish convention, I have to inform you that those papers having been deposited in this Department in conformity with the act of the 25th of February, 1831, which directs that on the close of the commission the records, documents, and all other papers in the possession of the commission or its officers shall be deposited in this Department, and which makes no provision for any subsequent disposition of any portion of them, either by returning them to the claimants or otherwise, I do not consider myself authorized to permit them to be withdrawn. Copies of those papers, however, which relate to the claim of Mr. Tennant, will be furnished to you, upon the payment of the charges fixed by law for the same, and they have, agreeably to the request made by you to Dr. Jones, been ordered to be made." (Mr. McLane, Sec. of State, to Mr. Kennedy, January 4, 1834, MS. Dom. Let. XXVI., 135.)

CHAPTER G.

THE NEAPOLITAN INDEMNITY: CONVENTION OF OCTOBER 14,

Invitation to American
Merchants.

1832.

Among the "allied" powers to whom Napoleon caused his Berlin and Milan decrees to be communicated was the kingdom of Naples. The government of the kingdom, wisely heeding the intimation, promptly reenacted them—the Berlin decree on December 21, 1806, and the Milan on January 9, 1808. But the effect of these measures on the commerce of the country was so destructive that on March 31, 1809, the government, with a view to supplying the needs of the people, issued a decree inviting the importation by neutral vessels of certain enumerated articles. This measure did not, however, obtain the response that was expected; and for the purpose of securing importations, Murat, as Joachim the First, King of Naples, on June 30, 1809, issued a special decree by which American vessels were by name authorized to import into the kingdom not only the articles enumerated in the decree of the preceding March, but also rice and staves, Peruvian bark and other drugs, Georgia, Louisiana, and Carolina cotton, Java coffee and sugar. Moreover, the Marquis of Gallo, secretary for foreign affairs, on July 1, 1809, by order of the King, addressed a communication to F. Degan, esq., United States consul at Naples, by which it was declared to be the intention of His Majesty, as a general measure, freely to admit American vessels coming directly to his ports, provided they had regular papers and had not by paying duty to Great Britain, or by submitting to be searched by British cruisers, brought themselves within the decrees of December 21, 1806, and January 9, 1808.

Confiscations.

To these various solicitations the American merchants responded. The first two or three vessels that arrived were fairly treated, and were permitted to dispose of their cargoes. Their good fortune lured on a larger number, and when these arrived they were seized and confiscated. From 1809 to 1812 49 vessels or cargoes, or both, of the value of more than $2,000,000 were thus disposed of: 15 in 1809; 24 in 1810; 2 in 1811; 8 in 1812. Upward of 39 vessels and cargoes were confiscated under a single decree issued by Murat March 12, 1810, which was as follows:

NAPLES, March 12, 1810.

"Joachim Napoleon, King of the Two Sicilies, has decreed and does decree that which follows:

"ART. 1. In conformity with the orders which we gave from Paris the 21st of December 1809, we declare confiscated the American vessels whose names are subjoined, that is to say: The Augustus, Hercules, Zephyr, Sophia, Romp, Two Betseys, Kite, Sukey and Betsey, Mary, Capt. Derby, Syren Emily, Capt. Waterman, Francis, Hound, Peace, Victory, Dove, Urania,

Fortune, William, Nancy, Maria, Hamilton, Phoenix, Ousitonack, Rose and Mary, Orizombo, Amherst, Mary Ann, Louisiana, and the John.

"ART. 2. Such of the cargoes of the said vessels as have not yet been sold, as well as the ships, are hereby directed to be disposed of by public sale, by the minister administrator-general of the indirect duties, and under the inspection of our minister of finances, or may be otherwise sold at private sale, by the said minister, as he shall judge most conducive to our interests.

"ART. 3. The proceeds of these sales shall be deposited in a particular bank, to be hereafter employed as we shall judge convenient.

"ART. 4. If any of the captors of the aforesaid vessels have claims upon them which they may think proper to advance, they are authorized to present and explain their pretensions in relation to the same, and we shall decide thereupon in pursuance of the report which we shall cause to be made to us by our minister of the finances and the minister of the marine and of war, after having taken the opinion of a commission composed of one of the administrators-general of indirect duties, of one member of the council of maritime prizes, and of one officer of the marine.

"Our ministers of the finances, of war, and of the marine, are charged, as far as it concerns them respectively, with the present decree.

Unjustifiable Proceedings.

"JOACHIM NAPOLEON.”

The only justification ever alleged for this decree was the act of Congress of March 1, 1809, which forbade commercial intercourse between the United States on the one hand and Great Britain and France on the other, an act which had no relation to Naples, and which was passed four months before the decree inviting American vessels to enter that kingdom. The object of the decree of March 12, 1810, was to confiscate all vessels and cargoes which had arrived between August 27, 1809, and February 20, 1810. As no American vessel had arrived between the latter date and March 12, it seems to have been assumed that no more would come, and that nothing would be gained by postponing the confiscations. Other vessels, however, subsequently arrived, and some of these were confiscated by ministerial letters addressed to the custom-house. In most cases it was impossible to obtain copies of these orders, since it was the policy of Murat's government to refuse copies of any documents which might incriminate it. It seems that some of the papers were destroyed, in order effectually to prevent subsequent exposure. Protests against the confiscations were made in vain. When the vessels were condemned their masters were compelled to draw on the owners even for port charges. Their crews were left to starve, or else to be supported by the United States consul, who in the end had to charter a vessel in which to send them home.

tions.

After

In 1816 William Pinkney was appointed minister of Pinkney's Negotia- the United States to Russia, and also to Naples. His mission to Naples was special, for the purpose of obtaining indemnity for the injuries which have been described. holding several conferences with the Marquis di Circello, then Neapolitan secretary for foreign affairs, Pinkney on the 24th of August 1816 addressed to him a note in which he set forth the nature of the claims of the United States and the grounds on which their payment was demanded. The Neapolitan government did not dispute, but on the contrary expressly affirmed, the injurious character of the acts on which the claims were founded.

'Am. State Papers, For. Rel. IV. 160.

But it denied the liability of the restored or "legitimate" government of the kingdom for the acts of Murat. Pinkney therefore addressed himself especially to this question. The persons who ruled Naples when the injuries were inflicted passed away before retribution could be obtained, although not before it was required; but the claims for it, said Pinkney, remained valid against the government of the country, notwithstanding the change of rulers. It was a principle universally received as incontrovertible, that a civil society was not absolved from obligations incurred by its actual government, simply by a change of government or of rulers. Merchants were not required to investigate the titles of sovereigns whose ports they visited. If they saw the usual indications of established rule, and all the distinguishing concomitants of real undisputed power, it was not within their province to determine whether it was fit for the people to obey and neighboring princes to acquiesce. They were not bound to look beyond the conditions that actually existed, and indeed were not permitted to do so. At the time of the confiscations in question the government of Murat, whatever its origin or foundation, had for some time been established and in the full exercise of the internal and external powers of government. It had been, as it long afterward continued to be, recognized as one of the family of states, and had maintained with them diplomatic relations. Such was its situation when the American vessels were tempted into its ports.

ment.

The Marquis di Circello for some time avoided makThe Neapolitan Argu- ing a formal reply to Mr. Pinkney's note. Indeed the latter was on his way to St. Petersburg when the reply was made. It was dated October 15, 1816, and passed him on his way. It was sent under cover to the Neapolitan minister at St. Petersburg, to be delivered at that place. Pinkney, learning that it was unfavorable, refused to receive it on the ground that his mission to Naples was ended; and it finally found its way to the United States through a copy handed to Mr. Gallatin, at Paris, by the Neapolitan ambassador at that place.1

After stating that the delay in replying to Mr. Pinkney's note was occasioned by an investigation of the subject of complaint, the note took the ground that the acts of "usurpers" could not be visited "upon the people subjected to their yoke, or upon the legitimate sovereigns." The true sovereign, it was argued, had "never ceased to be in a state of war with the usurper of his dominions," and he should not, on regaining his dominions in the course of the war, be "held responsible for the excesses of the enemy." Moreover, the nation was not responsible. If the inhabitants of the kingdom could have signified their wishes, they would have maintained relations of justice with the claimants. The nation itself was the victim of the usurper's acts. In fact the confiscations proceeded directly from the power and will of Bonaparte. There existed in the treasury a report of its minister to Murat, in relation to two American vessels seized under orders of sequestration emanating from "higher authority." In this report it was urged that the benefits from neutral commerce would greatly exceed the advantages to be derived from the confiscations of the vessels and their cargoes. Murat was then in Paris. The report was submitted to Napoleon, who indorsed on it an order that the

'Am. State Papers, For. Rel. IV. 169.