As the war acknowledged "no obligation to repair its ravages." American plenipotentiaries were not authorized either to recognize the treaties of 1778 or to abandon the claims, an agreement on this basis was impossible, and it became necessary either to postpone the subject or to abandon the negotiations. The American plenipotentiaries assumed the responsibility of the former alternative, and on September 30, 1800, signed a convention. By Article II. of this convention it was declared that, as the plenipotentiaries of the contracting parties had been unable to agree either upon the question of the treaties or "upon the indemnities mutually due or claimed," the two governments would negotiate on those subjects "at a convenient time," and that until they had come to an agreement the treaties should "have no operation." The Senate of the United States approved the convention, with the proviso that Article II. should be "expunged" and the duration of the convention limited to eight years. The convention as thus amended was returned to Paris for exchange of ratifications. Bonaparte, as First Consul, inserted in his ́ act of ratification the proviso that, by striking out Article II., “the two states renounced the respective pretensions, which are the object of the said article." The ratifications were exchanged at Paris on July 31, 1801. When the convention was received in the United States, the President, in view of the form of the French ratification, deemed it prudent to submit it again to the Senate, although he did not regard "the declaratory clause as more than a legitimate inference from the rejection by the Senate of the second article." The Senate, on December 19, resolved that it considered the convention "as fully ratified," and returned it to the President for promulgation. It was proclaimed on the 21st of December. The convention of 1800, after providing for the restoration of certain captured property, stipulated (Article V.) that debts contracted by one of the two nations with individuals of the other should be paid, but that this clause should not extend to indemnities claimed on account of captures or confiscations. By the convention of April 30, 1803, concluded in connection with the Louisiana purchase, it was provided that these debts with interest at six per cent should be paid to an amount not exceeding 20,000,000 francs The claims which were excluded from payment became known as the "French Spoliation Claims." It was maintained by the claimants that the condition of things existing between the United States and France from 1798 to 1800 did not constitute a state of war; that the claims against France for spoliations consequently remained in full force, except so far as they had been relinquished by the United States; that the United Ŝtates had in fact relinquished them in the consideration of a release by France from the obligations of the treaties of 1778; and that the United States, having sold the claims for a valuable consideration. had itself become liable for their payment. A bill passed by Congress for the relief of the claimants was vetoed by President Polk on August 8, 1846. A similar measure was vetoed by President Pierce on February 17, 1855. At length, by an act approved January 20, 1885 (23 Stat., 283), the claims were referred to the Court of Claims, which was authorized to report such conclusions of fact and law as in its judgment might affect the liability of the United States. This resulted in the filing of petitions embracing nearly 3,000 vessels and involving between 5,000 and 6,000 cases. Under the act of 1885 the Secretary of State sent abroad special agents, who by their researches obtained a mass of documents and information of much historical interest as well as of great value in determining the merits of the individual cases. Davis, Notes, Treaty Volume (1776-1887), 1300-1309; Moore, Int. Arbitrations, V. 4425-4437. As to French spoliations after 1803, see Moore, Int. Arbitrations, V. 4447 et seq. As to Spanish spoliations, see Moore, Int. Arbitrations, V. 4487, 4533. "The argument by which it is maintained that they [the French spoliation claims] should be paid by the United States may be briefly stated thus: (a.) The claims were valid claims against France, because they are founded upon torts committed in violation of the canons of international law, in a time of peace. (b) The United States relinquished these claims to France upon condition that France should surrender to them its national claims against them for alleged infractions of the treaties of 1778 and 1788, and should consent to the abrogation of those treaties. (c) Therefore, the United States, having appropriated to itself a benefit resulting from the losses of its citizens, should make compensation to the sufferers. "The argument of the other side may be stated thus: (a.) They were the cause of a war between France and the United States, by which they were expunged in the course of the operation of the ordinary rules of international law; but even admitting the contrary, those claims which were not recognized by the treaty of 1803 could not have been enforced against France without violating established canons of international law. (b.) No bargain was made with France respecting the guarantee. (c.) Therefore, the conclusion which is drawn from that alleged fact is incorrect. "The points in dispute, therefore, relate (1) to the fact whether there was or was not a recognized state of war; (2) whether the relinquishment of the guarantee in the 11th article of the treaty of 1778 was an element in the conclusion of the treaty of 1800; (3) whether that agreement of guarantee had an appreciable money value." Davis, Notes, Treaty Vol. (1776–1787), 1309. For Mr. Clay's report of 1826, with accompanying correspondence, see The Court of Claims, in opinions rendered by Judge John Davis, on May 17 and May 24, 1826, held that the United States was liable for the payment of the claims. It was conceded that the Supreme Court of the United States, in the case of Bass v. Tingy, 4 Dallas 37, had held that the state of things between the United States and France from 1798 to 1800 constituted " partial warfare, limited by the acts of Congress." The Court of Claims observed, however, that all the measures relied upon as evidence that war existed were taken prior to the instructions given by the United States to its plenipotentiaries to France on October 22, 1799, which did not recognize a state of war as existing or as having existed; that France herself, as shown by her various declarations, did not regard the difficulties between the two countries as amounting to war, and that the opinion of Congress, as gleaned from the statutes, was to the same effect. The court cited the opinions of Pickering, Madison, Clay, and Chief Justice Marshall that the claims were valid as against France and were relinquished by the United States for a valuable consideration. This view, said the court, was sustained by forty-five reports in Congress favorable to the claims as against only three adverse reports, all of which were made prior to the publication of the correspondence by Mr. Clay in 1826. The validity of the claims had also, said the court, "been recognized by Clinton, Edward Livingston, Everett, Webster, Cushing, Choate, Sumner, and many other of the most distinguished statesmen known to American history, and while opponents have not been wanting, among the most eminent of whom were Forsyth, Calhoun, Polk, Pierce, Silas Wright, and Benton, still the vast weight of authority in the political division of that Government has been strenuous in favor of the contention made here by the claimants." Gray, Adm'r., v. United States, 21 Ct. Cl. 340, 368-405. See, also, Cushing v. United States, 22 Ct. Cl. 1. By the act of January 20, 1885, no provision was made for an appeal to the Supreme Court. It has been held by the Supreme Court, in a case involving the question of who were the "next of kin," under the act of March 3, 1891, making an appropriation to pay certain claims, that the payments were directed by Congress by way of gratuity or grace, and that the next of kin intended were those living at the date of the act. (Blagge v. Balch, 162 U. S. 439, 16 S. Ct. 853, reversing 157 Mass. 144, 31 N. E. 764. See, alsoJones' Admr. v. United States, 137 U. S. 202.) No legal liability attaches to the United States for the surrender of a private claim unless it thereby gains a national advantage. (The Jane, 23 Ct. Cl. 226.) H. Doc. 551-vol 6-65 As the relinquishment of the United States was of claims for depredations on American commerce by French cruisers, it did not embrace the seizure and confiscation by the French army in 1796 of goods in a British warehouse in the neutral city of Leghorn. (Field, Admr., v. United States, 27 Ct. Cl. 224.) A condemnation by a French tribunal in Santo Domingo, within the jurisdiction of Spain, was disposed of by the treaty between the United States and Spain of 1819. (The Hope, 27 Ct. Cl. 122.) 3. RIGHT TO WITHDRAW OR ABANDON. § 1057. A government does not, by abandoning the claim of one of its citizens against a foreign government, necessarily become liable to make good the claim. "The argument of abstract right is strong; but as the justice obtainable from foreign nations is at all times, and under every state of things, very imperfect, and as the only alternative in cases of denial of justice is the abandonment of the claim or war, a nation by abandoning the claim, after exhausting every specific expedient for obtaining justice, neither partakes of the injustice done nor makes itself responsible to the sufferer; for war, even if it eventually obtains justice for that sufferer, secures it by the sufferings of thousands of others equally unmerited and which must ultimately remain unindemnified. And mere inability to obtain justice can not incur the obligation it is unable to enforce. 6 J. Q. Adams's Memoirs, 383. "The diplomatic abandonment of the claims by their own government, especially if accompanied by the characterization contained in the proposed preamble, could not fail to prove a serious obstacle to the success of any efforts which the parties, whose claims have heretofore been presented, might make to secure redress through the judicial tribunals, a source from which, under the most favorable circumstances, the claimants would seem to have little to hope for." Mr. Fish, Sec. of State, to Mr. Logan, Dec. 20, 1875, MS. Inst. Chile, XVI. 171. "While this Department is at all times ready to lend the good offices of its representatives abroad for the presentation of all valid claims founded on justice and equity of its citizens upon foreign governments in accordance with its established regulations, and also to assist in the promotion of American interests in all proper cases and by those methods known and approved internationally, yet it is not unmindful of the concurrent obligation imposed by our professions of amity and comity with other nations, as well as by the injunctions of our own self-respect, upon which we invite those nations confidently to rely, which should secure such previous scrutiny and examination of the law and facts upon which such claims are based by their proponents as shall, prima facie, assure both parties of their justice.. "To discriminate against speculative and unjust claims by our citizens upon foreign governments and in favor of those founded in justice and equity, will cause our recommendations to have that weight which we desire, and create confidence in our international action." Mr. Bayard, Sec. of State, to Mr. Jarvis, min. to Brazil, No. 40, Sept. 6, 1886, 42, withdrawing the claim of James C. Jewett against the Government of Brazil. "In view of the previous exercise of the Department's good offices on your behalf in this matter, and the apparent failure to establish the allegations of claim then made, it is not thought that your case is a proper subject for further diplomatic action." (Mr. Wharton, Asst. Sec. of State, to Mr. Jewett, June 28, 1889, 173 MS. Dom. Let. 474.) "Essential as it is that the intercourse between nations should be marked by the highest honor as well as honesty, the moment that the government of the United States discovers that a claim it makes on a foreign government can not be honorably and honestly pressed, that moment, no matter what may be the period of the procedure, that claim should be dropped." Report of Mr. Bayard, Sec. of State, to the President, on the case of A. H. It is part of the sovereign right of a government if, at any time before the consummation of a transaction relating to the claim of a citizen against a foreign government, it becomes satisfied of the falsity or injustice of the claim, to abandon all further action on behalf of the claimant. United States v. La Abra Silver Min. Co., 29 Ct. Cl. 432. XVI. DAMAGES. 1. MEASURE OF DAMAGES. § 1058. The probable or possible profits of an unfinished voyage afford no rule to estimate the damages in a case of marine trespass. The Amiable Nancy, 3 Wheat 546; La Amistad de Ruse, 5 id. 385. The prime cost or value of the property lost, and, in case of injury, the diminution in value by reason of the injury, with interest thereon, affords the true measure of damages in such a case. The Amiable Nancy, 3 Wheat. 546. |