Imatges de pÓgina

tice in the final settlement of their claims. The United States assumed the obligation to provide, "by process of law," for the adjudication and satisfaction of the injuries in question, reserving to themselves the choice of means for performing this obligation. If there be any defect in the proceedings authorized by law to fulfil the stipulations of the ninth article of the treaty, or if the result has been a failure to do substantial justice, either on account of the character of the tribunal erected, or of palpable errors in its judgment, the committee are of opinion that good faith requires the error to be corrected, and the treaty obligation to be fulfilled, to the very letter and extreme of right. If the appeal had been allowed to the Supreme Court of the United States, or to any established tribunal whose decisions are uniform and authoritative, as being guided by established principles, the parties could not perhaps, under any circumstances, have had good cause to complain. But the determination of legal questions by an executive officer, exercising quasi-judicial functions in pursuance of a treaty stipulation which provides for adjudications "by process of law," and being authorized thereto by the party alone whose duty it is to pay, certainly cannot claim that undoubted auauthority which would make the decisions final and conclusive under all circumstances. If, therefore, the Secretary of the Treasury has decided wrong, in a material point, the error ought to be corrected; and this can be done only by an act of Congress.

The matter of dispute between the government and the claimants rests upon a single point of law, which is extremely simple in its essential nature, however much the Secretary of the Treasury may have been embarrassed by "the usages of the department," and by the acts of his predecessors. The single question at issue is, not whether the accounting officers of the treasury are authorized to pay interest on claims presented for payment, but whether, in the substantial justice of the cases in question, the damages allowed by the Florida judges, in the form of interest, from 1813 down to the time when Congress provided the first and only opportunity to present them for adjudication and satisfaction, were properly allowed and ought to be assumed and paid by the government.

This committee do not find any reason to doubt that the estimates made by the Florida judges of the amount of injuries done by the American army, are fair and reasonable. Indeed, the fact that the Secretary of the Treasury, after full examination of the testimony and proceedings, ordered the payment of the principal sum, but refused to pay the incidental damages arising from the delay of satisfaction, upon the ground that the usage of the department did not authorize the payment of interest, is a sufficient evidence of the fairness of the awards, and leaves the question already stated to stand upon its own merits as a simple question of law and of right.

The committee do not deem it necessary to inquire how far the usages of the Treasury Department justified the original decision of this question in 1835, nor how far subsequent Secretaries were bound by that act of their predecessor. If the Secretary was embarrassed by existing laws and usages, then Congress certainly did not give the claimants the benefit of a fair tribunal, because the rights of these parties,

under the treaty, were to be determined by the laws of nat ons, and not by departmental usage, or even by the local laws of the United States. So far as the committee have been able to ascertain the views prevailing in the mind of the various Secretaries, and controlling their decision of this question, they were based altogether on the ground of precedents in the department, and not to any extent upon the general principles of law or the substantial justice of the case. In the letter of the present Secretary of the Treasury to the Attorney General, Mr. Guthrie says: "The latter part of these claims, awarded by the judges, was rejected by Mr. Woodbury, under the usage of the Treasury Department,' * * * * ' and the decision thus made has continued to govern in these cases to the present time." And Attorney General Cushing, in his reply to Mr. Guthrie, uses the following language:

"While for these reasons it would be unwise, in my opinion, for the Secretary of the Treasury to re-open, of himself, questions so fully and so long adjudicated, all in one way, and especially after the ample discussion of it in the last opinion of Mr. Crittenden, it is due to explicitness to say, that his view of the interest question precisely accords with my own, to the effect that although, if the question of interest were a new one, the weight of legal authority might lead to a different result from the existing one; yet the received rule must now be regarded as the law, subject only to the judgment of Congress, which can, if it will do what it has not yet done, prescribe by law the conditions and circumstances under which interest shall be allowed by the officers of the treasury."

So, also, Attorney General Nelson, in his opinion officially given in these same cases, uses this language:

"I do not mean to say that, upon principles of a broad and liberal equity, the present claimant may not be entitled to interest upon his demand. That is a question on which I express no opinion. All that I intend to urge, is, that under the established usage of the Treasury Department, over and again sanctioned by the opinions of the law officers of the government, the Secretary has no power to pay it."

It is plain from these facts that the true merits of the claim in question have never been determined. The usages of the Treasury Department, and the power of the Secretary to pay interest under existing laws, have been the only inquiries made, and upon them alone has the decision been based. Neither "the principles of a broad and liberal equity," nor the law of nations, nor the general maxims of adjudication adopted in ordinary courts of justice, have ever been applied to the adjustment of these demands.

The present Secretary of the Treasury thinks the injuries of 1812 and 1813 not within the provisions of the Florida treaty, and he looks upon the act of 1834 as a mere act of bounty on the part of the government. But such has not been the prevailing opinion. On the contrary, since the period of its passage, this act has been construed by every Secretary of the Treasury up to the time of Mr. Guthrie's report, and by every Attorney General who has given an opinion on the subject, including the present incumbent, Mr. Cushing, as a legis

lative declaration in the form of law, to the effect that the losses and injuries occasioned by the invasion of East Florida in 1812 and 1813 were within the treaty of 1819, and were to be adjudged and paid according to the provisions of the preceding act of March 3d, 1823, passed to carry the said article of the treaty into effect. The territorial and district judges, as well as the Supreme Court of the United States, have placed the same construction on the act of 1834, and the committee fully concur in this interpretation of the act.

Under this act, thus construed, these claims have been "received, examined and adjudged," and have been re-examined and approved at the treasury, as "just and equitable within the provisions of the treaty," and, in pursuance of the 2d section of the act of 1823, have been paid to the extent of the original value of the property at the time of its loss or destruction; while that part of the decrees which indemnifies for the loss of the use of the property arising from the delay of adjudication and payment has been repudiated and disallowed. But even in the absence of these conclusive considerations, and upon the supposition that the claims in question are not within the provisions of the treaty, it is still plain, from the terms of the act of 1834, that it was designed by that law to place the present claimants in the same condition with those who suffered injury by the acts of the army in 1818, and to give them the full benefit of the treaty stipulation. The cases were precisely parallel, and the same measure of damages was intended to be applied by the same tribunal, and paid out of the same appropriation. It is impossible to escape this conclusion, and, in the judgment of the committee, it is a mere quibble to attempt to evade a just responsibility upon a ground so trivial.

If, therefore, this case is to be considered, as the committee think it ought to be, apart from and untrammelled by the mere local usages of the Treasury Department, it becomes necessary to look to the established principles of law as administered in courts of justice, either under the local laws or under the laws of nations. As a question of law to be tested by these principles, as well as in view of abstract right and equity, there cannot be a doubt of the obligation on the part of the government to pay the demand. As before remarked, it is not properly in the nature of interest, and ought not to be placed upon that footing. It is, in reality, a substantive part of the injuries suffered by the operations of the army, and intended to be compensated by the treaty. If the case had reference to lands, the courts would estimate the injury by the value of the rents; if, in some States, it related to slaves, the measure of compensation would be the annual hire, which would always be much more than interest. In truth, the measure of damages adopted by the Florida judges, is the mildest and most mitigated estimate ever adopted by courts of justice. But to the extent of these awards or decrees, the principle is universally established--by the civil law, by the common law, and by the law of nations, alike in its application to individuals as in its operation between governments. It is believed that no decision can be found in the records of any respectable court in Christendom, in which this principle is denied or rejected. It is not only established by the decisions of the courts of all the States, and of the Supreme Court of the

United States, but by the awards of every board of commissioners which has ever acted under any of our treaties, and by the unvarying demands of this government, whenever it has sought indemnity for its own citizens in similar cases of injury by other powers.

It would be disreputable to the character of this government, and derogatory to its honesty and good faith, to repudiate, in this case, the principles whose acknowledgment it uniformly exacts from other governments under the same circumstances. The injustice would be only the more inexcusable and tyrannical, from the fact that the territory in which the outrages were committed, with many of the suf ferers themselves, have passed under the jurisdiction of the United States, so as to leave but little interest on the part of Spain to press the demand of her citizens. The government, having the parties completely in its power, cannot, without dishonor, refuse them that measure of justice which it would not for a moment withold from any powerful nation, having an equal right to claim it.

Without further argument of a question seemingly so plain, the committee refer to the numerous authorities quoted below in support of the positions assumed; and upon the strength of those authorities, they report a joint resolution directing payment of the awards made by the judges in favor of the claimants, and recommend its passage by the House.

First-The law of nations.

The following rule is laid down by Rutherforth in discussing the subject of Reparation for damages done:"


"In estimating the damages which any one has sustained, when such things as he has a perfect right to are taken from him and withholden or intercepted, we are to consider not only the value of the thing itself, but the value likewise of the fruits or profits that might have arisen from it. He that is the owner of a thing, is likewise the owner of such fruits or profits, so that it is as properly a damage to be deprived of them as of the thing itself."-Rutherf. Instit. Lib. 1, ch. 17, sec. 5.

"Satisfaction" for injuries, according to Vattel, includes interest and damages, and authorizes reprisals until what is due, with interest and damages, is repaid.-Vatt. Lib. 2, ch. 18, sec. 342; Wheat. Inter. Law, part 4, ch. 1, sec. 3.

The loss or diminution of any one's possession is not confined to the injuries done to the substance alone of the property, but includes everything affecting the produce of it, whether it has been gathered or hot."-2 Camp. Grot., ch. 17, sec. 4, et passim.

Fruits and profits are awarded in cases of wrongful taking or detention of property as part of the damages.-1 Domat. Lib. 3, tit. 5; vid et The Acteon, 2 Dods. R. 84.

Such is also the rule of the common law. The value of the property, with interest, furnishes the measure of damages. -Sedgw. on Damages, 549, 550, and authorities there cited.

Second-Judicial decisions of Supreme Court United States and State


"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 rule for estimating damages."-The Amiable Nancy, 3 Wheat., 546.

"The value of the vessel, the prime cost of the cargo, with all the charges, and the premium of insurance when it has been paid, with interest, are to be allowed."-The Anna Maria, 2 Wheat., 327.

"The just measure of damages has been deemed to be the actual value of the property, with interest upon the amount from the time of trespass."-The Appollon, 9 Wheat., 362.

"The proper measure of damages, in cases of illegal capture, &c., is the prime value and interest to the day of judgment.”—The Lively, 1 Gallis, 315.

In all cases of injury to property, whatever may be the form of the action, the rule that the value of the property at the time of the injury, with interest from that time, is the measure of damages, is of universal application.-2 Greenleaf's Ev. 282; Sedgw. on Dam. 517; and authorities there cited. Brannin vs. Johnson, 19 Maine R. 361; Bissell vs. Hopkins, 4 Cow., 52; Hyde vs. Stone, 7 Wend., 354; Dellenbach vs. Jerome, 7 Cow., 294.

Third-The practice of this Government.

Under the treaty between the United States and Great Britain, in 1794, a joint commission was instituted, which sat in London, and interest, as part of the damages, was allowed. Doctor Nicoll, one of the English commissioners, said: "To reimburse the claimants the original cost of the property, and all the expenses they have actually incurred, together with interest on the whole amount, would, I think, be a just and adequate compensation.

"This, I believe, is the measure of compensation usually made by all belligerent nations, and accepted by all neutral nations, for losses, costs, and damages," &c., &c.-Wheaton's Life of Pinkney, 198; vid et 265, in nota, and 375; the case of the Betsey. Some of these cases were submitted to Sir William Scott and Sir John Nicholl, and interest was awarded by them.-2 American State Papers, Foreign Relations, 119, 120.

The most important, because best considered case, was that arising under the treaty of peace between the United States and Great Britain in 1815, before cominissioners acting upon the award of the Emperor of Russia, which declared "that the United States were entitled to a just indemnification from Great Britain for all private property carried away by the British forces." The question was, What was such just indemnification? Mr. Cheves, the American commissioner, said: "The claim is not of interest eo nomine. It is adopted as a mitigated rule of damages, compensation, or indemnification, founded on the estimated value of the article withheld. In that case the common law and the civil law are both clear in allowing reparation for the loss of

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