CHAPTER I. THE BRAZILIAN INDEMNITY: CONVENTION OF JANUARY 24, 1849. Terms of the Convention. By a convention concluded at Rio de Janeiro, January 27, 1849, by David Tod, envoy extraordinary and minister plenipotentiary of the United States near the court of Brazil, and the Viscount of Olinda, then Brazilian secretary of state for foreign affairs, a settlement was effected of the long-pending claims of citizens of the United States against the Government of Brazil, by the latter government agreeing "to place at the disposition of the President of the United States the amount of 530,000 milreis, current money of Brazil, as a reasonable and equitable sum," to comprehend "the whole of the reclamations" collectively, without reference to the merits of any particular case. This sum it was left to the United States to distribute among the claimants; and in order that this might be done properly, it was provided that any documents which threw light on the claims should be delivered by the imperial government to that of the United States. It was stipulated that the indemnity should bear interest at the rate of 6 per cent from July 1, 1849, till it was paid. Legislation. Mr. Tod recommended that the tribunal to distribute the indemnity should sit at Rio de Janeiro, and in this recommendation some of the claimants concurred. An 2 act was, however, approved March 29, 1850, by which provision was made for the appointment of a commissioner to sit in Washington, and of a clerk to assist him. The commissioner was allowed $3,000 a year, and the clerk $2,000; and the commissioner was required to complete his labors within a year from the time of his first attendance in Washington. Organization of the July 1, 1850, Mr. John M. Clayton, Secretary of State, transmitted to Mr. George P. Fisher, of Delaware, a commission from the President, appointing him, by and with the advice and consent of the Senate, as commissioner under the convention and the act of Congress; and on the same day Mr. Clayton transmitted a similar commission to Mr. Philip N. Searle, of New York, as clerk. Mr. Searle was afterward succeeded as clerk by Mr. Charles Howard Edwards. Mr. Fisher entered upon the discharge of his duties as commissioner on July 1, 1850. He adopted rules for the government of procedure, and issued a notice of his appointment through the public press. 1 Mr. Tod to Mr. Clayton, August 23, 1849, H. Ex. Doc. 19, 31 Cong. 1 sess. 29 Stats. at L. 422. July 6, 1850, Mr. Clayton transmitted to the clerk of the commission all the papers then in the Department of State relating to the claims that were to be adjusted. On August 19, 1850, Mr. Webster, as Secretary of State, informed the commissioner that Mr. Ford, the diplomatic representative of the United States at Rio de Janeiro, had been instructed to apply to the minister for foreign affairs of Brazil for papers in the possession of that government. Various documents from Brazil were received in February 1851. Extensions of the By an act of March 3, 1851, the act of March 29, 1850, was continued in force for a year from March 1, 1851.' This extension, however, proved to be insufficient for the purposes of the commission, owing to circumstances which were stated in a letter to Mr. Webster of February 2, 1852, which was as follows: "Hon. DANIEL WEBSTER, "OFFICE OF THE COMMISSIONER TO "Secretary of State. "SIR: The near approach of the day to which this commission is limited by act of Congress, and the slow progress which has been made in the business for which it was established, admonish me of the propriety of placing before you a summary of its proceedings; to which I have the honor respectfully to solicit your attention. "On the 1st day of July 1850 I entered upon the discharge of my duties; since which time only twenty-one cases of claims have been presented for my examination and decision. Six of these have been ruled out upon the ground that they had never been presented to the imperial government prior to the negotiation of the convention between the United States and the Emperor of Brazil of the 27th of January 1849, and were therefore not such claims as were included in it. The aggregate amount of these six claims is about two hundred and eighty thousand dollars. In five other cases I have awarded in favor of the claimants. The aggregate amount of these awards is about seven thousand dollars. One of the claims has been decided adversely to the claimant, upon the ground that there was no evidence whatever to support it. The amount claimed in this case was about twenty-five thousand dollars. "It will be seen therefore that there still remain nine cases in which the memorials of the claimants have been presented, but which have not yet been decided owing to the difficulties the claimants have met with in obtaining testimony. "I have from time to time, by letter, reminded the claimants and their attorneys that the term of this commission is limited to the 1st day of March next, with the view that they might exercise all diligence in presenting the evidence in support of their claims; and I must do them the justice to say that in my opinion there are but few instances in which due diligence has not been used. "There is every probability that the nine cases last above mentioned may be adjudicated by the 1st day of March next. If each of these shall be decided favorably to the claimant, the aggregate amount of the awards would, according to the best estimate I can form, range from one hundred and seventy-five thousand to two hundred thousand dollars. "In addition to the above there are still nineteen cases which have been presented by the Government of the United States to the imperial government of Brazil for indemnity, and which are therefore comprehended under the convention of 1849; but which have not as yet been presented to me for adjustment. This number includes several of the largest and most complicated claims. 19 Stats. at L. 606. "I have been informed by the claimants in some of these cases that they have met with much difficulty in procuring from Brazil the documents and papers which are necessary to enable them not only to establish, but even to present their claims in proper form. You will recollect that, as long ago as the month of August 1850, instructions were given to our minister at Rio de Janeiro to call upon the department of state for foreign affairs of the imperial government for a compliance with the third article of the treaty, by which it was stipulated that the imperial government should deliver to that of the United States 'the respective documents which throw light upon' the claims comprehended in that convention. "In pursuance of these instructions that demand was made by our minister at Rio de Janeiro, but the result was the production of a mere handful of papers which related only to a few of the claims, and which were in most cases of comparatively little value. "I have been informed by the attorneys in several cases that they have many months ago, under the auspices of the State Department, pt forth fresh efforts to procure from Brazil evidence relating to their respective cases. Of the result of these renewed applications I am not apprised, but from the fact that these efforts have first to be directed to Rio de Janeiro and thence to the different provinces of a large empire embracing a sea coast of nearly three thousand miles, and sometimes to the interior of these provinces where the facilities of travel and communication are limited in the extreme, it is believed there is but little probability that any evidence from that empire will reach here in time to be of service to the claimants in presenting their cases to this commission, should it be closed upon the day to which it is limited. Indeed were all the cases now fully presented with ample proof to sustain each claim, I do not see how it could be possible for me to give them that proper examination which justice and equity would demand within the short space of four weeks. "You will bear in mind that many of these claims have been subjects of correspondence between the Department of State and the United States legation at Rio de Janeiro, and of discussion between that legation and the department of state for foreign affairs of the imperial government of Brazil for many years past. Several of them are coeval with the imperial government, whilst others date even beyond the separation of Brazil from the mother country. "As might naturally have been expected, many of the original claimants have been long since dead. Some of the claims arise out of the seizure and detention of vessels which were the property of several joint owners, of whom some have died, some have failed in business, turning their interests over to assignees, and others are scattered over different parts of the country from Maine to California. All these circumstances have conspired to delay even the inception of proceedings, in cases where such circumstances have occurred. "The sum paid by the Government of Brazil to that of the United States as indemnity under the convention of 1849 was five hundred and thirty contos of reis, which with interest and exchange realized about three hundred thousand dollars of our currency. If from this sum be deducted the estimated aggregate of awards already made and which may be made before the 1st day of March next, there will then remain in the Treasury of the United States, of the indemnity paid, from one hundred and thirty thousand to one hundred and fifty thousand dollars, or nearly one moiety of the fund. Should the commission then be closed with this state of things existing, I need not hint at the seemingly awkward position our government would occupy towards that of Brazil, having distributed but little more than one-half of the sum demanded and received of her as indemnity for wrongs and injuries committed upon our citizens. "It is manifest that these citizens will have to sustain loss against which they could not provide, owing to the circumstances which have The precise sum realized proved to be $322,535.98. (Mr. Corwin, Sec. of the Treasury, to Mr. Fisher, February 26, 1852, MSS. Dept. of State.) transpired within the long period of time during which negotiations have been pending, while the Government of Brazil will at the same time have apparent cause to complain of injustice suffered at our hands; and so long as that cause shall continue to exist, that government cannot fail to regard every claim hereafter to be made upon it by the Government of the United States with that prejudice which the mention of past injustice must certainly engender. "With these remarks I have respectfully to request that you will call the attention of the President to this subject, in order that he may consider upon the propriety of placing it before Congress. "I have the honor to be, Sir, your obedient servant, "GEO. P. FISHER." This letter was duly communicated by the President to Congress,' and an act was passed and approved extending the act of March 29, 1850, for a period of four months from and after March 1, 1852. The time for filing memorials was extended to January 1, 1852. Character of Claims. The character of the claims before the commission is disclosed in the following letter: "OFFICE OF THE COMMISSIONER TO "Hon. WALTER UNDERHILL, "House of Representatives. "SIR: Your letter addressed to the Hon. Daniel Webster, Secretary of State, with its enclosures, propounding questions respecting the nature and extent of the claims allowed to the citizens of the United States in the recent treaty' between this government and the Emperor of Brazil, was yesterday referred to me by the Department of State for an answer. In reply to the questions asked I have the honor to communicate the following information: "There are several classes of claims of American citizens which have from time to time been presented with demands for satisfaction by the Government of the United States to that of Brazil, thro' our legation at Rio de Janeiro. The first, is that class known as the prize claims, which originated upwards of 20 years ago during the war between Brazil and Buenos Ayres by reason of captures made by the imperial blockading squadron of American vessels for alleged attempts to enter the ports of Buenos Ayres in violation of the law of blockade. "Second. Claims for damages resulting from the seizure and detention of vessels at various ports in Brazil on the alleged ground that said vessels bore the American flag unlawfully, or that they were destined to places in the various provinces from which communication at the time was cut off by an imperial order. "Third. Claims for interest accruing after the acknowledgment of the demand for the principal. "Fourth. Claims for the restitution of anchorage duties, duties on importation paid twice, port charges, fines, and for provincial duties and taxes. "Fifth. Claims arising our of contracts of individuals with the imperial government. "Sixth. For damages occasioned by imprisonment, confiscation of property, and other wrongs to individuals. "Seventh. For expenses incurred in consequence of unlawful acts of the imperial government. Every claim of each of these classes was warmly resisted by the imperial government, and in the first article of the convention of the 27th January 1849, herewith transmitted, it is expressly stated that the Gov 1 Message of February 16, 1852, H. Ex. Doc. 75, 32 Cong. 1 sess. 2 Act of February 27, 1852, 10 Stats. at L. 146. |