to urge the call upon Portugal whenever there is room for expecting a favorable result.'

Under Mr. Tyler's administration Mr. Webster, at the solicitation of the claimants, renewed this demand, and a reply in writing was received from the Portuguese minister, Señor de Castro. In this communication, dated 3d August, 1843, addressed to Mr. G. W. Barrow, chargé d'affaires of the United States at Lisbon, the liability of Portugal was for the first time denied, and it was boldly asserted that the Americans, and not the British, had first violated the neutrality of their port. This was the only written reply ever received from the government of Portugal, since the communication of the Marquis de Aguiar, a period of nearly thirty years.

Under the administration of General Taylor, negotiations with Portugal were renewed. Mr. John M. Clayton, Secretary of State, in his instructions, dated April 20, 1849, to Mr. G. W. Hopkins, chargé d'affaires of the United States at Lisbon, in speaking of the Armstrong claim as "the oldest case of wrong, and the most remarkable," and in alluding to the wrongs and grievances so long borne by our countrymen, says: "It is under these circumstances that the President has resolved to make one more attempt to procure satisfaction for American claimants, and to assert the national honor. You will impress upon Portugal this idea, that, on entering upon the duties of his high office as Chief Magistrate of the United States, the President determined that he would assert the rights of his fellow-citizens upon foreign governments; proceeding upon the principle, often avowed by our government, to make no demand not founded in justice, and to submit to no wrong.' Further delay will be construed into denial. It is in contemplation to lay before Congress the result of this final appeal, at at early period of the next session. Should it happen, unfortunately, that a satisfactory answer be denied, or withheld, until the arrival of the period for making the proposed communication, the subject will then be submitted to that body as it shall at the time stand; and the Portuguese government may rest assured that any measures which Congress in their wisdom may decide upon, as due to our citizens and country, will be faithfully carried out by the Executive." In carrying out these instructions, Mr. Hopkins, in his letter, dated Lisbon, June 28, 1849, to Count Tojal, the Portuguese minister of foreign affairs, says: "The President of the United States sincerely desires to cultivate peace with every nation and people, but he will never compromit the dignity of the republic, nor abandon the just rights of his fellow-citizens to attain any end.'

Mr. James B. Clay, who succeeded Mr. Hopkins, continued the negotiation, and in bis letter of the 24th April, 1850, peremptorily refused to accept the proposition of Count Tojal to refer the case of the General Armstrong to the arbitration of a third power. In the final instructions sent to Mr. Clay by the Department of State, dated March 8, 1850, a peremptory demand was made on the Portuguese government, and twenty days allowed for a final reply. These instructions were sent to the commander of the American squadron in the Mediterranean, to be delivered to Mr. Clay, and the demand was backed by the presence of the American fleet in the river Tagus. In

these instructions Mr. Clayton says: "In regard to a reference of our claims to an arbiter, which has been indicated, the President has directed me to say that no such course will, under the circumstances, receive his sanction, and this for reasons too obvious to need enumeration."

The letter of Count Tojal to Mr. Hopkins, dated Lisbon, September 29, 1849, states that "it is well known that the British government had already, in 1817, disapproved of the conduct of Commodore Lloyd, thereby giving satisfaction to his Majesty's government, and that it had, in March, 1818, made compensation for the losses occasioned to the inhabitants of Fayal by the artillery of the British forces, while absolutely refusing indemnity for the loss of the American privateer, on the grounds of her having been the first aggressor, and therefore the cause of her own destruction." Furthermore, Count Tojal states in his letter of March 9, 1850, to Mr. Clay, that, "In 1814, the government of her Britannic Majesty, through Lord Bathurst, then minister of foreign affairs, directed Mr. Canning, ambassador at Lisbon near the regency, to give the Portuguese government a verbal satisfaction for the occurrences which had taken place, and which resulted in the destruction of the privateer General Armstrong, in the port of Fayal," &c. And finally, that, "in 1817, Lord Castlereagh, who was then minister of foreign affairs to her Britannic Majesty, sent the sum of £319 to the inhabitants of the village Da Horta, as a compensation for the damage which the balls of the brig Carnation had caused to their dwellings," &c. On Mr. Clay afterwards quoting these facts as conclusive evidence, both against the Portuguese and British governments, Count Tojal replies in his letter of May 15, 1850, that "the English government does not consider the conduct of Commodore Lloyd as amenable to censure; that upon being informed of its having been asserted, in the course of this correspondence, that Commodore Lloyd had been reprimanded by the government of his Britannic Majesty, on account of his conduct in the affair of the privateer General Armstrong, an official communication was sent, a few days ago, to the government of her most faithful Majesty, stating that the assertions in regard to such censure were entirely destitute of foundation." It is worthy of remark that the Portuguese government studiously concealed the diplomatic correspondence with England in regard to this whole transaction, although requested to exhibit it by Mr. Clay.

The government of Portugal, thus supported, aided and encouraged by the government of England, continued to resist the payment of this claim, while she willingly admitted others of unequal justice and merit. Under these circumstances, on the 11th July, 1850, Mr. Clay, according to instructions, demanded his passports and left the country. In the meantime the Portuguese minister at Washington, J. C. de Figaniére é Morâo, had opened a correspondence with the Secretary of State in relation to the Armstrong claim, urging a reference of the claim to a third power. Mr. Clayton rejected the proposition, and in his letter of the 30th April, 1850, says: "The undersigned, in conclusion, is compelled to add, that should the Portuguese government persevere in the refusal to adjust and settle what are believed to be the incontrovertable claims of American citizens upon that government, the only alternative Rep. Com. 194--2

left to the President will be immediately resorted to the submission of the whole subject to the decision of the Congress of the United States, whose final determination as to the mode of adjustment will have all its appropriate influence upon the course of the Executive." Again, on the 19th June, 1850, Mr. Clayton, in reply to Mr. Figaniére's reclamations on this government, as a set-off against this and other claims, says: "In conclusion, sir, I beg leave to repeat to you the assurance contained in my note of the 30th May last, that the just claims of the citizens of this country upon Portugal will lose none of the merit which characterizes them, nor any portion of that protection which this government has determined to extend to the claimants, by the resuscitation of such unfounded pretensions.'

At this critical juncture, on the 9th of July, 1850, President Taylor died. On the formation of the new administration under Mr. Fillmore, the proposition of Portugal to submit this claim to a third power for arbitration was renewed, accepted, and agreed to by this government, without the knowledge, advice, or consent of the memorialist, or any of the claimants. A treaty was concluded on the 26th February, 1851, and ratified by the Senate on the 10th March. This treaty was proclaimed on the 1st September, 1851. Louis Napoleon, president of the republic of France, was chosen as arbitrator. The claimants then submitted to the Department of State, and filed a written argument, with the request that it should be transmitted to the arbitrator chosen by the high contracting parties. The Secretary of State, Mr. Webster, refused the application, on the ground that the terms of the treaty did not permit of it, and the claimants were deprived of the privilege, and debarred of the benefit of being heard, through their counsel and agent, in support of their demand. More than one year was permitted to elapse before any decision was made. The "prince president" had, in the meantime, become emperor of France. On the 29th November, 1852, Mr. Rives, our minister at Paris, was informed by the French minister of foreign affairs, Mr. Drouyn de L'huys, that the arbitral decision of the prince president had just been rendered, and he would be immediately invited to wait on the prince president to receive the decision. On the 10th December, 1852, the French minister informs Mr. Rives that, "circumstances not having permitted the emperor' to invite you to wait on him, he has done me the honor of deputing me to deliver, in his name, to the representatives of the two nations interested in the matter, the two documents destined for their respective governments.' Mr. Rives, in his letter to Mr. Everett, Secretary of State, dated Paris, December 13, 1852, discloses the particulars of the formalities of receiving the award, and states, in conclusion, that "It may not be improper for me to add, that I never received, from any quarter, any intimation of the nature of the decision rendered; nor did the minister of foreign affairs, in the interview above mentioned, make the slightest allusion to its bearing on the one side or the other. He only said, in general terms, that the president had examined the whole subject with great care and attention, and with an earnest desire to render justice to the parties, according to the facts and principles involved in the controversy."

It is evident from the letter of Mr. Rives that he never was consulted

or advised with in regard to the rights of the claimants, nor was he invited or permitted at any time to appear before the "prince president," or 66 emperor of France," to make any statement or explain any fact or argument in behalf of the claimants in this arbitration. Having thus narrated the facts of the case, the committee will now proceed briefly to state the views which have led them to the conclusion that the memorialists are entitled to relief. It is certain that, by a gross violation of the law of nations, the General Armstrong was attacked and destroyed in the neutral harbor of Fayal by a British squadron. That the outrage was, immediately after its occurrence, and when the facts were all fresh in the recollection of the authorities and inhabitants of Fayal who had witnessed it, made the ground of earnest and indignant remonstrance by the government of Portugal to that of Great Britain, that it was admitted and apologized for by the latter, and compensation made to such Portuguese subjects as had suffered by the collision. It appears to be conceded on all hands that the tolerance by a neutral of such a violation of its territory, renders it responsible to the government whose citizens have suffered by it, not only for apology and explanation, but for pecuniary indemnity. That such claim was made by the United States, and urged for many years on Portugal ; that its justice has been considered indisputable by all administrations; that even it was on one occasion intimated that it would, if denied, be enforced by arms. That after many delays and evasions Portugal offered to refer the claim to the arbitrament of a third power; that this offer was peremptorily rejected; that afterwards being renewed, accompanied by the bonus of a promise to pay the full amount of all other reclamations made by the United States, it was accepted without notice to, or consultation of any kind with, the claimants, who, when it had once been rejected, had a right to presume that it would not be acceded to without their assent, and that they were not allowed the privilege of submitting an argument in the case. While a government is the sole judge of the circumstances under which a resort to arms should be had to secure reparation for injuries done to their citizens, and may abstain from a further prosecution of them, yet a manifest distinction exists between this right of abstinence and that of reference to arbitration. This power may be discreetly and rightfully exercised where various and complicated causes of complaint exist, and where the adjustment of none can be obtained without the submission of all to reference; and the citizen as to whom the decision may be unfavorable, although his claim be just, would probably have no valid equitable ground of recourse against his government.

The case of the General Armstrong was distinct and isolated, no other interests were hanging upon its decision, and if the administration of President Fillmore did not choose to urge it further, it might, and in the opinion of this committee, should have been left for future settlement. Numerous instances in our own history during the last thirty years, to which it is not necessary to refer, demonstrate the efficacy of time in bringing about the solution of difficulties apparently insurmountable.

The committee, while indisposed to speak in any other terms than those of unqualified respect of the judgment and impartiality of the

arbiter to whom the case was referred, think that there is a manifest error in his statement of facts and the conclusion drawn from his statement in the final award. He says: "Considering that if it be clear that on the night of the 27th of September, some English long boats, commanded by Lieutenant Robert Fausset, of the British navy, approached the American brig the 'General Armstrong,' it is not certain that the men who manned the boats aforesaid were provided with arms and ammunition. That it is evident, in fact, from the documents which have been exhibited, that the aforesaid long-boats having approached the American brig, the crew of the latter, after having hailed them and summoned them to be off, immediately fired upon them, and that some men were killed on board of the English boats and others wounded-some of whom mortally-without any attempt having been made on the part of the other boats to repel at once force by force.'

Now, it is evident that the natural, indeed, necessary presumption is, that the boats of men-of-war do not, at night, closely approach an armed vessel of an enemy without the crew being armed-those who assume the negative in such a case should prove it but no stronger evidence can be required of the facts of the crews of the British boats being armed, than that a seaman of the "General Armstrong" was killed and her first lieutenant wounded in the first contest. Under all the peculiar circumstances of the case, the committee are of opinion that the claimants are justly entitled to relief on strict legal principles, and even were their convictions on the subject less decided than they are, they would find in the heroic conduct of Captain Reid and his gallant crew strong inducements to give them the benefit of their doubts.

There are two points of general interest involved in this matter, which should not be without their influence on the action of the Senate. The effect to be produced on our own citizens by according indemnity in stimulating them to emulate the noble example of Captain Reid; for there can be no doubt that if he had suffered himself to be captured without resistance, full pecuniary satisfaction would long since have been accorded by Portugal to the claimants. Shall we refuse it because he has added to our naval history one of its most brilliant pages? Again, if we act upon the avowed principle that our citizens are always to be compensated for any injuries they may suffer from the violation by belligerents of the law of nations, other countries will be more earnest in maintaining the inviolability of their territory.

The committee report the accompanying bill and recommend its passage.