by the Danish Government), that it considered the fact of having made use of British convoy as an indelible offense, to be visited with the penalty of confiscation, even after the vessels had separated from the convoy, or on the return voyage where they had made use of convoy going up the Baltic. "But the resistance of the master of a single ship, which is supposed to be analogous to the case of convoy, must refer to a neutral master, whose resistance would probably, by the established law of nations, involve both ship and cargo in the penalty of confiscation. The same principle would not, however, apply to the case of an enemy master, who, having an incontestible right to resist his enemy, such resistance could not affect the neutral owner of the cargo, unless he was on board, and had actually participated in the resistance.

"Such was, in a similar case, the judgment of Sir William Scott, whose decisions may certainly be considered as very good, and even conclusive authority, where he decides anything favorable to neutral rights, however questionable they may be thought where they tend to confirm belligerent pretensions. So, also, the right of a neutral to transport his goods on board of an armed belligerent vessel was solemnly affirmed by the decision of the highest tribunal in the United States, during the late war with Great Britain, after a most elaborate discussion, in which all the principles and analogies of public law, bearing upon the question, were thoroughly examined and considered.

The American commissioner, then, confidently relies upon the position before assumed by him, that the entire silence of all the authoritative writers on public law as to any such exception to the general freedom of nentral navigation, laid down by them in such broad and comprehensive terms, and of every treaty made for the special purpose of defining and regulating the rights of neutral commerce and navigation, constitutes, of itself, a strong negative authority to show that no such exception exists, especially as the freedom is expressly extended to every case which has the slightest resemblance to that now in question. It cannot be denied that the goods of a friend, found in an enemy's fortress, are exempt from confiscation as prize of war; that a neutral may lawfully carry his goods in an armed belligerent ship; that the neutral shipper of goods on board an enemy's vessel (armed or unarmed), is not responsible for the consequences of resistance by the enemy master. How, then, can the neutral owner, both of ship and cargo, be responsible for the acts of the belligerent convoy, under the protection of which his property has been placed, not by his own immediate act, but by that of the master, proceeding without the knowledge or instructions of the owner?

"Such would certainly be the view of this question if we apply to it the largest measure of belligerent rights ever assumed by any maritime state. But when examined by those milder interpretations of public law, which the Danish Government, in common with the other Northern powers of Europe, has hitherto patronized, it will be found still more clear of doubt. "If, as Denmark has always insisted, a neutral may lawfully arm himself against all the belligerents; if he may place himself under the convoying force of his own country, so as to defy the exercise of belligerent force to compel him to submit to visitation and search on the high seas, the conduct of the neutral Americans who were driven to take shelter under the floating fortresses of the enemy of Denmark, not for the purpose of resisting the exercise of her belligerent rights, but to protect themselves against the lawless violence of those whose avowed purpose rendered it certain that, notwithstanding their neutrality, capture would be followed by inevitable condemnation, will find its complete vindication in those principles which the publicists and statesmen of his country have maintained in the face of the world.

"Had the American commerce in the Baltic been placed under the protection of the ships of war of the United States, as it is admitted it might have been, the belligerent rights of Denmark would have been just as much infringed as they were by what actually happened. In that case, the Danish cruiser must (upon Danish principles) have been satisfied with the assurance of the commander of the American convoying squadron of the neutrality of the ships and cargoes sailing under his protection. But that assurance

could only have been founded upon their being accompanied with the ordinary documents found on board of American vessels, and issued by the American Government, upon the representations and proofs furnished by the interested parties. If these may be false and fraudulent in the one case, so may they be in the other, and the Danish Government is equally deprived of all means of examining their authenticity in both. In the one, it is deprived of these means by its own voluntary acquiescence in the statement of the commander of the convoying squadron; in the other, by the presence of a superior enemy's force preventing the Danish cruiser from exercising his right of search. This is put, for the sake of illustration, upon the supposition that the vessels under convoy had escaped from capture, for upon that supposition only could any actual injury have been sustained by Denmark as a belligerent. Here they were captured without hostile conflict, and the question is, whether they are liable to confiscation for having navigated under the enemy's convoy, notwithstanding the neutrality of the property, and the lawfulness of the voyage in other respects? Even supposing, then, it was the intention of the American shipmasters, in sailing with the British convoy, to escape from Danish as well as French cruisers, that intention has failed of its effect; and it may be asked what belligerent right of Denmark has been practically injured by such an abortive attempt? If any, it must be the right of visitation and search. But the right of visitation and search is not a substantive and independent right, with which belligerents are invested by the law of nations for the purpose of wantonly vexing and interrupting the commerce of neutrals. It is a right growing out of the greater right of capturing enemy's property or contraband of war, and to be used as means to an end to enforce the exercise of that right. Here the exercise of the right was never, in fact, opposed, and no injury has accrued to the belligerent. But it may be said that it might have been opposed, and entirely defeated, had it not been for the accidental circumstance of the separation of these vessels from the convoying force, and that the entire commerce of the world with the Baltic sea might thus have been effectually protected from Danish capture. And it may be asked in reply, what injury would have resulted to the belligerent rights of Denmark from this circumstance? If the property be neutral, and the voyage lawful (as they were in the present instance), what injury would result from the vessels escaping from examination? On the other hand, if the property was that of the enemy, its escape must be attributed to the superior force of the enemy, which, though a loss, would not be an injury of which Denmark would have a legal right to complain. Unless it can be shown that a neutral vessel navigating the seas is bound to volunteer to be searched by the belligerent cruisers, and that she has no right to avoid search by any means, it is apparent that she may avoid it by any means which are not unlawful. Viofent resistance to search, rescue after seizure, fraudulent spoliation, or concealment of papers, are all confessedly unlawful means, which, unless extenuated by circumstances, may justly be visited with the penalty of confiscation. Those who allege that sailing under belligerent convoy is also attended by the same consequences, must show it by appealing to the oracles of public law, to the text of treaties, to some decision of an international tribunal, or to the general practice and understanding of nations. If all these are silent upon the subject, can it be expected that the Government of the United States will relinquish their claim to an indemnity for the property of their citizens thus captured and confiscated, even if the question were more doubtful than it is, upon principle and analogy?

"The third general ground of capture of American vessels and cargoes, that of their being possessed of French consular certificates of origin after the French consuls in the United States were prohibited by their own government to issue them, except to vessels bound directly to the ports of France, proceeded upon a mistaken assumption of fact. The French consuls were accustomed to give their certificates to any American vessel applying for them, without regard to the port of destination, except that it must be a port of France, or of an ally of France, or of a neutral power. In the year 1810 the French Government forbade the granting these certificates

to any other vessels than those bound to the ports of France; but the instructions to that effect did not reach the French consuls in the United States until the 13th of November of that year, prior to which time those certificates bore date which were made the pretext for the seizure of American vessels by the Danish crnisers. Even if the certificates had been spurious, as was supposed, contrary to the fact, that would not have been a justifiable cause for the seizure and confiscation of an American vessel under Danish authority, whatever might have been the consequences in the tribunals of France of a capture by a French cruiser. As to Denmark, a French certificate of origin, not being a document required by the law of nations, was a paper altogether unimportant and superfluous. Indeed it is difficult to conceive how it should even have been otherwise considered by the Danish tribunals, since it is said that His Majesty had not adopted the decrees of Berlin and Milan, and the other violent measures of France against neutral trade.1

Conclusion of a
Convention.

In communicating this argument to his government, Mr. Wheaton said he flattered himself that the views he had taken of the question of the conclusiveness of prize sentences would induce the Danish Government "once more to abandon this ground." It seems to have had that effect, though it did not at the moment produce any apparent result. Nevertheless, after further negotiations the Danish commissioners at length offered a sum which Mr. Wheaton decided to accept, and on March 28, 1830, he signed with them a convention in which provision was made for its payment.3

Terms of the Convention.

By this convention His Majesty the King of Denmark, while renouncing the indemnities which "might be claimed" from the Government of the United States on account of the seizure, detention, condemnation, or confiscation of vessels, cargoes, or other property, engaged to pay to the United States the sum of 650,000 Spanish milled dollars, "on account of the citizens of the United States who have preferred claims relating to the seizure, detention, condemnation, or confiscation of their vessels, cargoes, or property whatsoever, by the public and private armed ships, or by the tribunals of Denmark, or in the states subject to the Danish scepter." It was agreed that this sum should be paid in three equal installments on March 31, 1831, September 30, 1831, and September 30, 1832, respectively, with interest on the second and third installments from March 31, 1831, at the rate of 4 per cent per annum. The distribution of the fund was committed to the United States, and for the purpose of adjusting the claims described in the convention the United States engaged to establish a "board of commissioners, consisting of three citizens of the United States," who should

1 H. Doc. 249, 22 Cong. 1 sess. 34-38.

H. Doc. 249, 22 Cong. 1 sess. 22.

"With reference to the sum which he accepted, Mr. Wheaton, in a dispatch to Mr. Van Buren, said: "I have not before me sufficient material from which to form a judgment as to the real amount of the losses unjustly sustained by our citizens from Danish captures. You will find that Mr. Erving, in his correspondence, estimates the actual loss at about $1,750,000, reckoning about thirty-five condemnations 'quite unjust,' to use his own expression. But supposing the real injury to have been considerably greater, the sum now recovered, considering the diminished resources of this exhausted country, will, I trust, be considered as a tolerable salvage from this calamitous concern." (Davis's Notes: Treaties and Conventions, 1776-1887, p. 1287.)

be appointed by the President, by and with the advice and consent of the Senate, and who should meet at Washington and within two years from the time of their first meeting "receive, examine, and decide upon the amount and validity of all such claims, according to the merits of the several cases, and to justice, equity, and the law of nations." The commissioners were required to take an oath or affirmation "for the faithful and diligent discharge of their duties." They were "authorized to hear and examine, on oath or affirmation, every question" relating to the claims before them, and "to receive all suitable authentic testimony concerning the same." And in order to facilitate the proceedings of the board the King of Denmark engaged, "when thereunto required, to cause to be delivered to any person or persons who shall be duly authorized for that purpose by the Government of the United States, in addition to the papers already delivered, all the acts, documents, ship's papers and prize proceedings which may still remain in the archives of the High Court of Admiralty, or the Prize Tribunals of Denmark, relating to the seizure, detention, condemnation, or confiscation of the vessels, cargoes, or property whatsoever, belonging to the citizens of the United States of America before the said tribunals." It was further provided that the commissioners should "award and cause to be distributed, among the several parties whose claims shall be allowed by the board, the sum mentioned" in the convention, in proportion to the amounts of their respective claims thus allowed. Finally it was declared that the "intention of the two high contracting parties being solely to terminate, definitely and irrevocably, all the claims which have hitherto been preferred," the convention was "only applicable to the cases therein mentioned, and having no other object can never hereafter be invoked by one party or by the other as a precedent or rule for the future."

Act of Congress.

In order to carry this convention into effect, an act was passed by Congress by which it was provided that "the commissioners who are or may be appointed by the President of the United States, by and with the advice and consent of the Senate, in pursuance of the third article of the convention," should meet at Washington, and within two years from the time of their first meeting "receive, examine, and decide upon the amount and validity of all such claims as may be presented to them and are provided for by the convention referred to, according to the merits of the several cases, and to justice, equity, and the law of nations, and according to the provisions of said convention." The President was authorized to appoint a secretary to the commission, and the commissioners, or a majority of them, with the secretary, were required to convene at Washington on the first Monday in April 1831 and to proceed to execute the duties of their commission. It was provided that all papers in the Department of State relating to the claims should be delivered to the commission. The commissioners were empowered to make all needful rules and regulations for the government of their procedure. Their salary was fixed at $3,000 a year and that of the secretary at $2,000, and the President of the United States was authorized to make provision for their contingent expenses. At the close of their labors they were directed to deposit their records and all other

1 Act of February 25, 1831, 4 Stats. at L. 446.

papers in the possession of the commission or its officers in the Department of State.

ces.1

mission.

As commissioners the President appointed George Organization of Com- Winchester, William J. Duane, and Jesse Hoyt, and as secretary Robert Fulton. They met in Washington on Monday, April 4, 1831, and in obedience to the act of Congress took an oath faithfully to perform the duties of their respective offiThe commissioners then addressed a letter to Mr. Van Buren, as Secretary of State, informing him of their organization, and received in reply, at their rooms, "in a building on Capitol Hill, formerly occupied by Congress," several boxes of papers. In the letter with which these papers were transmitted Mr. Van Buren informed the commissioners that an agent had been sent by the United States to Sweden, with the permission of the government of the latter country, for the purpose of withdrawing from the tribunals of Norway such documents as might be useful and necessary in deciding upon claims under the convention.

Rules.

On the 6th of April 1831 the commissioners adopted the following rules:

"Ordered, that all persons having claims under the convention between the United States of America and His Majesty the King of Denmark, concluded and signed at Copenhagen on the 28th day of March 1830, which are to be received by the commissioners, do file a memorial of the same with the secretary of the board to the end that they may hereafter be duly examined, and the validity and amount thereof decided upon, according to the merits of the several cases and the suitable and authentic testimony concerning them which may hereafter be required. The said memorial must be addressed to this board. It must set forth minutely aud particularly the various facts and circumstances whence the right to prefer such claim is derived. It must be verified by the affidavit of the claimant.

"And in order that claimants may be informed of what is now considered by the commission as essential to be averred and established before any such memorial can be received by this board, it is further,

"Ordered, that each claimant shall declare in his said memorial, for and in behalf of whom the said claim is preferred, and whether the amount thereof, and of any part thereof, if allowed, does now, and at the time when the said claim arose did, belong solely and absolutely to the said claimant or to any other, and if any other, what person; and in cases of claims preferred for the benefit of any other than the claimant, the memorial to be exhibited must further set forth, when, why, and by what means, and for what consideration, such other has become entitled to the amount or any part of the amount of the said claim. The memorial required to be exhibited by all claimants must also set forth and certainly declare, whether the claimant, as well as any other for whose benefit the claim is preferred, is now, and at the time when the said claim arose, was, a citizen of the United States of America-where he is now, and at the time the said claim arose was, domiciliated, and, if any, what change of domiciliation has since taken place.

"The said memorial must also set forth whether the claimant, or any other who may have been at any time entitled to the amount claimed, or any part thereof, hath ever received any, and if any, what sum of

The oath, which was taken before a justice of the peace of the District of Columbia, was as follows: "I do solemnly swear that I will faithfully and diligently discharge the duties of my office, and that I will support the Constitution of the United States."