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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
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 sufferers 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 wichholden 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 ast." --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; rid 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 citel.
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 bas 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.”—T'he Appollon, 9 Wheat., 362.
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
the use of the thing withheld from the commencement of the tortious detention. The rule of the public law is the same.”
The government of the United States maintained the position of Mr. Cheves. In a letter dated April 16, 1826, from the then Secretary of State, Mr. Clay, and addressed to the British minister, he says: “We are prepared to show, if it were proper now to enter on this discussion, that interest is a fair and just component part of the indemnification, which the convention stipulates, and that, without interest, it would fall short of the intentions of his imperial Majesty's decision.'
These claims were eventually compromised between the two governments by the payment of a gross sum, of which $418,000 was expressly for interest.
This case will be again adverted to in referring to the opinions of the Attorneys General. Yet, it is obvious here to remark, that the analogy is perfect between it and the case under consideration. In the former, "a just indemnification"—in the latter, "satisfaction, was to be made for the “injuries suffered.” The terms are convertible. Nothing short of a just indemnification can constitute satisfaction for an injury. If there be any difference between them, the latter is the stronger expression.
The practice of the government on this subject has been uniform. In the treaty with Spain, of the 27th of October, 1795, it was agreed that the “losses” sustained by American citizens from the capture of their vessels by Spanish subjects should be referred to the decision of commissioners. This was done, and interest was awarded as part of the damages.- American State Papers, vol. 2, Foreign Relations, 283.
In the settlement, by Mr. Tudor, of the claims of American citizens against the Brazilian government, interest was claimed and allowed. Executive Document 32, 1st session 25th Congress ; H. R. 249.
So under the convention of April 11, 1839, and the treaty of February 2, 1848, with Mexico, interest was allowed.
The cases of the Comet and Enconium ought also to be referred to. These vessels, having slaves on board, were driven by stress of weather into the Bahamas. The slaves were seized and liberated by the colonial authorities, and the American government claimed from Great Britain the return of the slaves, or compensation for their detention and loss. In his correspondence with the English secretary, the American minister said: “The general doctrine is this: that he who withholds what he ought to return, does an injury for which he is bound to indemnify the sufferer ; that the proper measure of indemnification is the thing which is withheld, together with reasonable fruits or profits accruing during the period that it is so withheld ; that if restitution of the property, however, cannot be made, justice finds its equivalent, and interest on it is resorted to as the best standard by which to ascertain the reasonable profits of money." These positions were ultimately acquiesced in by Lord Palmerston, and the cases were settled on payment of the value of the property, and interest from the time of seizure.-Senate Document 174, 2d ses