important interests of so many American citizens were involved. But the efforts of Mr Forbes during his long residence of more than seven years at this court, were wholly fruitless in obtaining even an examination of the claims. Mr Rosenkrantz redeemed his official pledge to take into just consideration these demands, at a more convenient season, by reiterating the same plea, which his excellency had before urged to Mr Erving, that the decisions of his Majesty's own tribunals precluded him from redressing the wrongs committed by the cruisers acting under his authority. In 1818, Mr Campbell appointed minister of the United States at the court of St Petersburg, on his way to that capital, stopped at this residence, and, in an interview with Mr De Rosenkrantz, stated that, though he was not instructed to renew the discussion of the claims at that time, he was directed to say that the American Government entertained the strongest conviction of their justice, had not abandoned, and could not think it their duty to abandon them.

In 1825, Mr Hughes, on his way from Stockholm to the Netherlands, where he had recently been appointed Chargé d' Affaires of the United States, was instructed to call here, and repeat the demand for a satisfactory adjustment of the claims. This demand was met by the Minister of Foreign Affairs, Count Schimmelmann, with the same objection which had been insisted on by his excellency's predecessor, Mr de Rosenkrantz.

Lastly, at the moment of the signature of the commercial convention between the two countries, in 1826, Mr Secretary Clay addressed a note to Mr Pedersen, his Majesty's minister, resident at Washington, explicitly declaring that the omission to provide for the indemnities due on account of these claims, in the treaty, was not hereafter to be interpreted as a waiver or abandonment of them by the United States' Government, which, on the contrary, was firmly resolved to persevere in the pursuit of them until they should be finally arranged upon principles of equity and justice.

Notwithstanding Mr Pedersen was not charged by his own Government, in that negotiation, to treat of the claims now in question, yet the American Government did not hesitate to conclude a convention which marks its liberal spirit towards the Danish Government, and from which the colonies and commerce of Denmark have derived great advantages, and which expressly recognises, for the first time, on the part of the United States, her right to the duties collected on the passage of the Sound and the Belts.

The negotiation which has now been commenced, affords, in the opinion of the American commissioner, additional proofs of the friendly disposition of the Government of the United States towards that of Denmark, and of its desire not to press its pretensions against the latter beyond reasonable and moderate bounds. It is willing to make a great sacrifice

of the interests of its citizens, who have so long been deprived of the use of their commercial capitals, by what the American Government is bound to consider the unjust conduct of the Danish cruisers, and the unjust decision of the Danish tribunals. Under these circumstances, the American commissioner regrets the necessity of entering into discussions which have been invited by the commissioners of his Majesty, but which, he apprehends, may not lead to any useful practical result.

The principal ground upon which the representations of the United States' Government, in favor of their injured citizens, has been hitherto repelled by the Danish Government, and which it is necessary first to examine, because it goes to preclude, in limine, all inquiry and all redress, is stated by his excellency, Count Schimmelmann, in an official letter to Mr Hughes, dated the 17th of August, 1825, in the following

terms:

That 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 cannot, 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 in civil and criminal causes; and the King, during his reign has followed, in every case, this invariable rule, and has not exer

cised his supreme power, excepting to mitigate penalties prescribed by sentences, conformably to the laws, or to pardon.'

The commissioner of the United States apprehends that the above remarks proceed 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 may be a law of the Danish monarchy that the sentences in the last resort of the ordinary civil and criminal tribunals, constituted under the municipal code of the country, and exercising jurisdiction over its own subjects, are not re-examinable 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 is such an effect to be attributed to those sentences, merely because, in the arrangement of the courts of justice in Denmark, the appellate jurisdiction in matters of prize invested in the same high tribunal, which is also the court of the last resort in cases arising under the municipal law of the land. Even in the case of the sentences of the ordinary municipal tribunals of a country, although the general presumption is that they are correct, (a presumption which ought not lightly to be disregarded,) it does not always prevent a foreigner from invoking the aid of his own Government to obtain redress

from the Government of the tribunal in which an erroneous judgment is supposed to have been pronounced. The writers on the law of nations, in treating on the subject of reprisals, expressly make the unjust judgments of the tribunals of the offending nation, a ground of resort to that forcible proceeding. Thus Grotius states, that a 'judicial sentence, plainly against right, to the prejudice of a foreigner, entitles his sovereign to obtain reparation by reprisals: "Nam auctoritas judicantis non idem in exteras quod in subditos valet." For the authority of the judge is not of the same force against foreigners as against subjects. Here is the difference: Subjects are bound by the sentence of the judge, though it be unjust, so as that they cannot lawfully oppose the execution of it, nor by force recover their own right, on account of the authority of the dominion under which they live. But foreigners have coercive powers, (i. e. of reprisals,) though it is not lawful to use it, so long as they can obtain their right in the ordinary course of justice.' (De Jur. B. ac. P. lib. 3, cap. 2., sec. 5.) So, also, Bynkershoek, in treating of the same subject, puts an unjust judgment upon the same footing with naked violence, as equally authorizing reprisals on the part of the State whose subject had been thus injured by the tribunals of another State. (Quæst. Jur. Pub., lib. 1., cap. 24.) And Vattel (liv. 2, ch. 18, s. 350,) in enumerating the different modes in which justice may be refused, so as to authorize re

prisals, mentions a judgment manifestly unjust and partial.' And though he states (what nobody denies,) that the judgments of the ordinary tribunals ought not to be called in question upon frivolous or doubtful grounds; yet he is manifestly far from attributing to them that sanctity which would absolutely preclude foreigners from seeking redress against them.

These principles are sanctioned by the authority of numerous treaties between the different powers of Europe, regulating the subject of reprisals, and declaring that they shall not be granted unless in case of the denial of justice.

An unjust sentence must certainly be considered a denial of justice,' unless the mere privilege of being heard before con

demnation is all that is included in the idea of justice.

But even supposing that the unjust judgments of the municipal tribunals do not form a ground of reprisals, there is evidently a wide distinction in this respect, between the ordinary tribunals of the country proceeding under the municipal law, as their rule of decision, and the same, or another tribunal, sitting in the belligerent state, and professing to administer the law of nations to foreigners as well as subjects. The ordinary municipal tribunals 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 territory of the country. But

when courts of prize exercise their jurisdiction over vessels and cargoes captured at sea, the property of foreigners is brought by force within the territory of the state by which those tribunals are constituted. By the natural law of nations, the tribunals of the captor's country are no more the rightful, exclusive judges of captures in war, made on the high seas, from under the neutral flag, than are the tribunals of the neutral country. The equality of nations would, on principle, seem to forbid the exercise of a jurisdiction thus acquired by force and violence, and administered by tribunals which cannot be impartial between the litigating parties, because created by the sovereign of one to judge the other.

Such, however, is the constitution of the tribunals, in which, by the positive and customary law of nations, is vested the exclusive jurisdiction of prizes taken in war. But this imperfection of the voluntary law of nations, in its present state, cannot oppose an effectual bar to the claim of a neutral government seeking indemnity for its citizens, who have been unjustly deprived of their property under the erroneous administration of that law. The institution of these tribunals, so far from exempting or being intended to exempt the sovereign of the belligerent nation from responsibility, is designed to fix and ascertain that responsibility. Those cruisers are responsible only to the sovereign whose commission they bear. So long as seizures are regularly made, upon apparent grounds of

just suspicion, and followed by prompt adjudication in the usual mode, and until the acts of the captors are confirmed by the sovereign in the sentences of the tribunals appointed by him to adjudicate in matters of prize, the neutral has no ground of complaint, and what he suffers is the inevitable consequence of the belligerent right of capture. But the moment the decision of the tribunal of the last resort has 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 has thus been finally denied; the capture and the condemnation become the acts of the state, for which the sovereign is responsible to the Government of the claimant.

There is nothing more irregular in the supposition that the sovereign is responsible towards foreign states for the acts of his tribunals, than that he is responsible for his own acts, which, in the intercourse of nations, are constantly made the grounds of complaint of reprisals, and even of war. No greater sanctity can be imputed to the proceedings of prize tribunals, even by the most extravagant theory of the conclusiveness of their sentences, than is justly attributed to the acts of the sovereign himself. But those acts, however binding upon his own subjects, if they are not conformable to the public law of the world, cannot be considered as binding upon the subjects of other states. A wrong done to them, forms an equally just subject of complaint on the part of their government,

whether it proceed from the direct agency of the sovereign himself, or is inflicted by the instrumentality of his tribunals.

The tribunals of any country are but a part, and a subordinate part, of the Government of that country. But the right of redress against injurious acts of the whole Government of the supreme authority incontestably exists in foreign States, whose citizens have suffered by these acts. Much more clearly, then, must it exist when those acts proceed from persons, authorities, or tribunals, responsible to their own sovereign, but irresponsible to a foreign government, otherwise than by its action on their sovereign.

These principles, so reasonable in themselves, are also supported by the authority of the writers on public law, and by historical examples.

The exclusive right of the State, to which the captors belong, to adjudicate upon the seizures made by them, (says Rutherford,) is founded upon another, i. e. its right to inspect into the conduct of the captors, both because they are members of it, and because it is responsible to all other States for what they do in war, since what they do in war is done either under its general, or under its special commission. The captors, therefore, are obliged, on account of the jurisdiction which the State has over their persons, to bring such ships or goods as they seize in the main ocean into their own ports; and they cannot acquire property in them until the State has determined whether

they were lawfully taken or not. This right, which their own State has to determine this matter, is so far an exclusive one that no other State can claim to judge o their behavior, till it has been thoroughly examined into by their own; both because no other State has jurisdiction over their persons, and, likewise, because no other State is answerable for what they do. But the State to which the captors belong, while it is thus examining into the behavior of its own members, and deciding whether the ship or goods, which they have seized upon, are lawfully taken or not, is determining a controversy between its own members and the foreigners who claim the ships or the goods; and this controversy did not arise within its own territory, but'in the main ocean. The right, therefore, which it exercises, is not civil jurisdiction; and the civil law, which is peculiar to its own territory, is not the law by which it ought to proceed. Neither the place where the controversy arose, nor the parties who are concerned in it, are subject' to this law. The only law, by which this controversy can be determined, is the law of nature applied to the collective bodies of civil societies, that is, the law of nations, unless, indeed, there have been any particular treaties made between the two States, to which the captors and the other claimants belong.'

This right of the State to which the captors belong, to judge exclusively, is not a complete jurisdiction. The captors who are its own members, are bound to submit to its sentence, though this