one to be withdrawn by the memorialist. Many other claimants having solicited an extension of the time assigned for the presentation of memorials, on the allegation of their utter inability otherwise to procure from foreign countries indispensable documents, the order of July was, at their instance, modified by the extension of the time to the 1st of February next; but the order is in force in reference to all others.

"In several of the suspended cases, also, the claimants can not procure the requisite documents in time to enable me to pass upon them equitably; indeed, there is not a single instance in which the claimant has signified his willingness to have his case set down for hearing; some of the claimants require time to procure evidence from England, France, Spain, South America, and the West Indies.

"The amount of claims presented thus far, by memorial, exceeds the fund, and the amount of claims of which notice has been given, and part of the proofs in support of which are now on file in this office, reaches several millions beyond the fund. It is out of my power to decide upon the validity of the mass of these claims, until not only the memorials shall have been filed, but all the proofs before me.

"The reason for the suspension of most of the memorials has been the insufficiency of the accompanying evidence by which the claims were supported; and I do not doubt that, on reasonable indulgence being given as to time, the necessary proofs will be furnished. It strikes me to be premature to express a confident opinion as to what range the claims may take under the convention; certain it is, that much of the embarrassment now felt by me on this point will be removed should the President recommend, and Congress adopt, either of the alternatives proposed in my note of the 4th instant to the department.

"With great respect, I remain, sir, your most obedient servant,
"LOUIS D. HENRY."

These letters were duly communicated to Congress, and the term of the commission, which was at first limited to a year from the first meeting in Washington, was extended till February 1, 1838.o

February 8, 1837, the board adjourned till May 22, Principles of Decision. when it reconvened for its third session. This session closed July 12, when an adjournment was taken to November 23, to afford claimants further time for filing memorials and proofs. On July 10, two days before this adjournment, the commissioner published the following principles and rules on which all accounts were to be taken, under decisions allowing claims:

"First. As to vessels: The value of every vessel must be estimated at her actual cost to the owner, where that can be ascertained; and if not ascertained, her value at the commencement of the voyage will be deemed to be her true value, deducting there from a reasonable percentage for subsequent deterioration.

"To her value thus allowed, add two-thirds of a fair freight, where the voyage was not completed.

"In cases of capture and release, where doubts exist as to the probable grounds of capture, nothing is to be allowed for the detention of the vessel after capture, unless the delay has been unreasonable, and then only for the wages of the crew-expenses of their support-and damages incurred by the vessel during the detention.

"Second. As to cargo: In cases where the cargo has been taken at sea, the invoice cost will be deemed to be its true value, adding thereto the usual and ordinary shipping charges-the customary brokerage on the purchase

1H. Ex. Doc. 73, 24 Cong. 2 sess.

2Act of June 7, 1837, 5 Stats. at L. 179.

5627-VOL. 5——-10

of the goods-and a reasonable or fair premium of insurance for the particular voyage, said premium to be rated with that usual or current at the time of the shipment; and this premium is to be allowed whether the owner was his own insurer or not.

"Where the property was seized on shore at the place of destination, and the market price there, at the time of seizure, can be satisfactorily ascertained, that price shall be the criterion of value. If from any cause such market price cannot be ascertained, recourse must be had to the actual cost and charges as in other cases.

"Third. Charges and expenses, in defending the property, whether vessel or cargo, will be allowed where they have been actually paid, in all cases where there has been a reasonable effort to defend or reclaim the subject.

"Fourth. Where the property was recaptured, and restored on payment of salvage, the amount so paid, with incidental expenses, is to be allowed. In cases of Ransom, the actual sum paid is to be allowed, and where the property has been sold after capture, and a proportion of its proceeds given up as the price of a partial restitution, the sum so given up is to be deducted from the indemnity to be allowed.

Fifth. As to freight: A fair premium of insurance is to be allowed on freight, as on other insurable interests.

"Sixth. In the distribution of the amount awarded, reference is to be had only to the claimant's actual loss. Nothing is to be allowed for profits or anticipated gains. Whatever he has received under contracts of insurance, is to be deducted from the award in his favor; but where insurers are claimants, their claims are generally to be allowed for the sums actually paid, except in cases of loss especially adjusted between the parties, and then the intention of the parties at the time of settling their contracts is to be carried into effect."

Final Report.

November 23 the board met for its fourth session, which continued till January 31, 1838, when the term of its existence being about to expire, the board, having disposed of the business before it, directed the secretary to transmit all books, papers, and documents relating to the commission to the Department of State, and then adjourned. The commissioner made the following report:

"The undersigned commissioner, a citizen of the United States, appointed by the President, by and with the advice and consent of the Senate, under the act of Congress approved the 7th of June 1836, entitled 'An act to carry into effect a Convention between the United States and Spain, concluded at Madrid, on the 17th day of February, A. D. 1834,' has the honor to submit to the Secretary of State the following Report.

"The board was duly organized pursuant to the said act, on the 30th of July 1836. The journal, or record, of its proceedings, which accompanies this report, will show fully the manner in which it was organized, and the various orders, rules, and regulations, which it adopted from time to time, for the just and orderly government of its proceedings, to which the commissioner begs leave to refer.

"The action of the undersigned upon the cases submitted to his consideration, comprehended three stages. The first stage was the examination of memorials; the second, the examination of the proofs filed to substantiate the allegations of the memorials; and the third, and last, was the adjustment of the awards in the allowed cases. In this order he therefore begs leave to present a general outline of the principles which regulated his determinations.

"In the examination of memorials, the facts stated therein, and verified by the affidavit of the claimant, were assumed by him to be true. If the case presented by the memorial was embraced by the renunciations of the third article of the convention of the 17th February 1834, unless a strong doubt existed, the memorial was received; otherwise, it was rejected. "This course involved the necessity of settling the proper construction

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 22d 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 undersigned 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 arguments 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 foreigner, 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 authorized by Spain, or directly sanctioned by her authorities, civil, military, or judicial; that the injury was not the loss of expected gains, aud 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 obligated 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 claims 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 established, 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 frivolous pretenses, in contravention of well-established principles of inter

national 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 expected 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 value; if it could not be ascertained, recourse was had to the actual cost and charges.