aJe.C/v"blo/. o'K\^r.^ OQ/*>& ^i"^!^*^ tinvciU* ct-r-MfJ Class ^40. ^r?i (^^/Ce^ ^^ UNITED STATES COURT OF CLAIMS. \\ DECISION OF THE CASE OF THE PRIVATE ARMED BRIG GENERAL ARMSTRONG, CAPTAIN SAM C. REID AND OTHERS, CLAIMANTS, T8. THE UNITED STATES. I I UNITED STATES COURT OF CLAIMS. DECISION OF THE CASE ^^ OF TUB ''^ Jp^ PRIVATE ARMED BRIG GENERAL ARMSTRONG, ' CAPTAIN SAM C. REID AND OTHERS, CLAIMANTS, vs. THE UNITED STATES. WASHINGTON. MARCH 17, 1855. Chief Justice Gilciirist delivered the opinion of the Court. This case has been pending before the people and government of the United States, in various forms, for more than forty-one years. It has never, until recently, been in a situation to be thoroughly argued and inves- tigated as a question of law and of fact ; although, from the peculiar circumstances attending it, and from the discussions in Congress, it has commanded the atten- tion and excited the interest of the public. We are now to consider it, however, in its relation to individ- ual rights and national liabilities, and in this point of view it requires a careful consideration. The case is an interesting one in a national point of view, not only because it relates to the duties of neu- tral nations towards belligerents, but because it raises the question, how lar a belligerent power is liable to its citizens for losses they have sustained through the neglect of their government to insist that the neutral nation shall perform its obligations. It is also interest- ing as a brilliant illustration of the gallantry and self- devotion of our countrymen. The leading facts in the case have been notorious to the American people for more than forty years. On the twenty-sixth day of September, 1814, the Ameri- / 2 "' ^ can private armed brig General Armstrong cast anchor in the port of Fayal, a part of the dominions of the crown of Portugal, to get a supply of fresh water. In the afternoon the British brig Carnation, of 18 guns; the ship Rota, of 38 guns; and the 74 gun ship Plan- tagenet, came into the port, and anchored a,bou^ seven o'clock. In the evening four boats approached the General Armstrong. Captain Reid repeatedly hailed them, and warned them to keep off. They continued to approach, when he fired on them and killed and wounded several men. The boats returned the fire, and killed one man, and wounded the first lieutenant. The British then retreated, and about midnight renewed the attack with twelve boats and about four hundred men, which ended in their total defeat with great slaughter, and the partial destruction of their boats. The American brig carried seven guns, and her crew amounted to ninety men. She had two killed, and seven wounded, while the killed and wounded on the part of the British must have been nearly two hundred men. So great was the loss that the Calypso sloop of war, which arrived a few days after, was sent home with the wounded men. The British commander, Cap- tain Lloyd, finding this mode of attack unavailing, with laudable discretion anchored the Carnation close in shore, and cannonaded the brig, when her gallant de- fenders finding it useless to resist such an overwhelm- ing force, abandoned the vessel, and she was then safely set on fire by the British. The kingdom of Portugal was neutral, or professed to be so, in the war between the United States and Great Britain, and Fayal was a neutral port. Any vio- lation of the neutrality of the port, by either of the belligerents, was a breach of the law of nations. The property of belligerents when within the neutral juris- diction is inviolable. It is not lawful to make neutral territory the scene of hostility, or to attack an enemy while within it ; and if the enemy be attacked, or any capture made under neutral protection, the neutral is bound to redress the injury and effect restitution. — 1 Kent. Com., 117 ; Yattel, B. 3, ch. 7, § 132. In the case of the Tiuee Gehroeders, 3 Rob., 13G, Sir William Scott says, that no use of a neutral territory for the purposes of war is to be permitted. "Such an act as this," he says, "that a ship should station herself on neutral territory, and send out her boats on hostile enter- prises, is an act of hostility much too immediate to be permitted." That there was a violation of the neutrality of the port of Fayal by the one party or the other is indis- putable. If the party attacked merely exercised the right of self-defence, that cannot be a cause of com- plaint. It is a question of fact, to be determined upon an examination of the evidence, which party violated the rights of the neutral by attacking the other. Did the American brig, with her seven guns and ninety men, commit the folly of attacking the boats of the British squa^lron, reinforced as their crews might almost instantly have been by many hundreds of men, or did the British commander, seeing the brig lying, as he imagined, helpless within his grasp, determine to attack and carry her at all events; and did he pursue the course which any officer would have adopted if his object were to capture an enemy's vessel? This, of itself, would, according to Sir William Scott, have been a violcftion of neutrality. "Suppose," he says, "that even if a direct hostile use should be required to bring it within the prohibition of the law of nations, nobody will say that the very act of sending out boats to effect a capture is not in itself an act directly hostile." Chancellor Kent says, "no measure is to be taken that will lead to immediate violence." — 1 Kent Comm., 118. Upon this point the law is clear and indisputable. The first question that presents itself is a question of fact, and that is, whether, in this transaction, the British or the Americans were the aggressors. Mc^re than forty-one years have elapsed since the affair happened. We are not, however, forced to depend upon the testi- mony of witnesses given for the first time after so long a period, and from the credit of which, time, and the failure of memory, might properly require us to make some deduction. We have the statements of those who were actors in the transaction, made at the time of its occurrence, and with every opportunity of know- 'ing the truth. It is agreed by the counsel on both sides, that the facts and the law are now both before us, and the various questions in the case have been argued with a skill and ability that leave nothing to be desired. We shall endeavor to examine the evi- dence, irrespective of the consideration that the United States and Great Britain were then at war, and of any national feeling that might be excited by the saiiguin- ary conflict that took place in the harbor of Fayal. We shall examine, in the first place, the testimony of the witnesses, both American and English, who were actors in the transaction. On the 27th day of September, 1814, Samuel C. Reid, the captain of the Armstrong; Frederick A. Worth, the first lieutenant; Robert Johnson, third lieutenant; Benjamin Starks, sailing master; John Bros- noham, surgeon; Robert E. Allen, captain of marines; Thomas Parsons, James Davis, Eliphalet Sheffield, and Peter Tyson, prize masters of the brig, made oath before Mr. Dabney, the American consul for the Azores, to a declaration and i)rotest, the material parts of which are as follows : "That he (Reid) sailed in and with said brig from the port of New York, on the ninth day of September last past, well, found, staunch, and strong, and manned with ninety officers and men for a cruise; that nothing material happened on the passage to this island, until the twenty-sixth instant, when she cast anchor in this port, soon after twelve o'clock at noon, with a view to get a supply of fresh water; that during the said afternoon his crew were employed in taking on board water, when about sunset of the same day, the British brig of war. Carnation, Captain Bentham, appeared suddenly, doubling round the northeast point of this port ; she was immediately followed by the British ship li-ota, of thirty-eight guns, Captain P. Somerville ; and the seventy-four gun ship Plantagenet, Captain Robert Lloyd; which latter, it is understood, commanded the squadron. They all anchored about seven o'clock, p. m., and soon after, some suspicious movements on their part, indicating an intention to violate the neutrality of the port, induced Captain Ried to order his brig to be warped in shore, close under the guns of the castle ; that in the act of doing so lour boats approached his vessel, fdled with armed men Captain Reid repeatedly hailed them, and warned "them to keep oil", which they disregarding, he ordered his men to tire on them, which was done, and killed and wounded several men. The boats returned the lire and killed one man, and wounded the first lieutenant; they then fled to their ships and prepared for a second and more fomidable attack. The Ameri- can brig, in the meantime, was placed within half cable's length of the shore, and within half pistol shot of the castle. Soon after midnight, twelve, or as some state, fourteen boats, supposed to contain nearly four hundred men, witli small cannon, swivels, blunderbusses, and other arms, made a violent attack on said brig, when a severe conflict ensued, which lasted near forty minutes, and terminated in the total defeat and partial destruction of the boats, with an immense slaughter on the part of the British. The loss of the Americans in the action was one lieutenant and one seaman killed, and two lieutenants and five seamen wounded. At daybreak the brig Carnation was brought close in, and began a heavy cannonade on the American brig, when Captain Reid, finding further resistance unavailing, abandoned the vessel, after partially destroying her, and soon after the British set her on fire. The said Captain Reid, therefore, desires me to take his protest, as he by these presents does most solemly protest, against the said Lloyd, commander of the said squadron, and against the other commanders of the British ships engaged in this infamous attack on the said vessel, when lying in a neutral, friendly port ; and the said Captain Reid also protests against the government of Portugal, for their inability to protect and defend the neutrality of this their port and harbor; as also, against all and other State or States, person or persons, whom it now doth or may concern, for all losses, costs, and damages that have arisen, or may arise to the owners, officers, and crew of the said brig General Armstrong, in consequence of her destruction, and the defeat of her cruise, in the manner aforesaid." It will be perceived that Captain Reid and his officers state that some suspicious movements, indicating an intention to violate the neutrality of the port, induced Captain Reid to order his brig to be warped in shore, close under the guns of tlie castle ; " that in the act of doing so, four boats approached his vessel filled with armed men. Captain Reid repeatedly hailed them, and warned them to keep off, which they disregarding, he ordered his men to fire on them, which was done, and killed and wounded several men. The boats returned the fire, and killed one man and wounded the first lieutenant." Here ten witnesses, upon whose veracity no imputa- tion has been cast, and who had the means of observa- tion, give an account of a transaction which happened under their own eyes, and in which they took a part. On the other side is the deposition of Lieutenant Robert Fausset, sworn to on the 27th of September, 1814, before the British consul at Fayal, who states that, "on Monday the 2Gth instant, about eight o'clock in the evening, he was ordered to go in the pinnace or guard- boat, unarmed, on board his Majesty's brig Carnation, to know what armed vessel was at anchor in the bay ; when Captain Bentham, of said brig, ordered him to inquire of said vessel ; which, by information, was said to be a privateer. When said boat came near the privateer, ' they hailed to say the Americans,' [which probably should be, " the Americans hailed,"] and desired the English boat to keep off, or they would fire into her ; upon which Mr. Fausset ordered his men to back astern, and with a boat-hook was in the act of so doing, when the Americans, in the most wanton manner, fired into the said English boat, killed two and wounded seven, some of them mortally ; and this, notwithstand- ing said Fausset frequently called out not to murder them, that they struck and called for quarters, Said Fausset solemnly declared that no resistance of any kind was made, nor could they do it, not having any arms, nor, of course, sent to attack said vessel. Also several Portuguese boats, at the time of said unprece- 8 dented attack, were going ashore, which, it seems, were said to be armed." This deposition is said, in the letter of Count Tojal to Mr. Hopkins, of September 29th, 1849, to be "con- firmed under oath by the master and one seaman of that barge,'' The contradictions are, that the protest says the boats were armed, while Fansset says they were unarmed ; the protest says the fire was returned, while Fansset says they made no resistance; the protest says four boats approached the brig, while Fansset says he ap- proached with the pinnace only; the protest says that the boats disregarded the warning of Captain Reid to keep ofi", and that then he fired ; Fausset says that upon being ordered to keep off he ordered his men to back astern, and was in the act of doing so when the Ameri- cans fired. Upon all these matters, there is the testi- mony of ten witnesses from the brig, against three from the boat; and, of coure, the weight of evidence is decidedly in favor of the Americans, admitting all the witnesses to have been equally honest, and to have possessed equal opportunities for knowing the truth. Now upon this evidence, derived as it is' from the actors in the transaction, who are the very best sources of information, no intelligent jury could doubt for a moment that the statements in the protest were proved. They would find the facts to be, as we do, that four armed boats approached the brig; that they were hailed and ordered to keep off or they would be fired into; that they disregarded the warning; that the Americans then fired and killed some of their men ; that they re- turned the fire, and killed one man and wounded the first lieutenant. These facts we find to be proved by the evidence. But there are some statements in Fausset's deposition, which, to say the least, are singular, and which cast some doubt upon the entire correctness of his stor}'. It appears from his deposition that the British knew that the brig was an "armed vessel," and, "by information, was said to be a privateer." He says that " he was ordered to go in the pinnace or guard-boat, unarmed,'' to the Carnation, to know what vessel it, was; and the captain ordered him to inquire of the brig. Now, it is singular, that in the evening, in a time of war, the com- modore of a British squadron should be so particular as to order the boat to be unarmed, and still more sin- gular that Captain Bentham should, at such a time, order an unarmed boat to approach a vessel which he knew to be armed, and supposed to be a privateer, and prob- ably an American privateer. It was not by sending out unarmed boats, under such circumstances, that Brit- ish naval officers attained for their country, and so long exercised, the sovereignty of the seas ; and the British officers, of forty years ago, were not trained in a school that would tolerate such negligence. It is singular, also, that Fausset, who was sent to inquire "what armed vessel was at anchor," did not hail the brig at all; but, instead of lying off at a proper distance and hailing the bris:, he was so near, when the Americans hailed him, that he says he backed his boat astern ivith a boat-hook ! If he went there in his unsuspecting simplicity merely to procure information, was it necessary for him, in that quiet bay, and that moonlight night, to run his boat directly against the vessel's side ? Could he not have laid off a hundred feet from the brig, too far to hoard her, but near enough to get an answer to his question ? His story is entirely inconsistent with the position that he desired only to know what vessel she was, and 10 strongly confirms tlie assertion in the protest, both that Captain ReicVs warning was disregarded and that the boat returned the fire. It is difficult to understand the purpose of Fausset's allusion to the Portuguese boats, which, "at the time of the attack, were going ashore, which, it seems, were said to be armed," unless it be to intimate that Captain Reid mistook Portuguese armed boats oTjin,*!' ashore for English armed boats about to attack his vessel. The Portuguese boats had nothing to do with the affair ; this is the only allusion to them, and the fact of their presence in the bay is wholly immaterial. It may be added that Fausset says more than that the boat Vv'as unarmed^ from which it raiglit be inferred that it Avas unarmed for an assault nierel}" ; for he soys that " no resistance of any kind was made, nor could they do it, not having «;^?/ arms." He thus makes the con- dition of his boat so extremely defenceless, that his story fails to carry conviction with it. But it is said the Americans fired the first shot, and were consequently the aggressors. That they fired the first shot is clear, but the consequence does not follow that by so doing they were the aggressors. Sir William Scott says, 3 Rob., 136, "that a ship should station her- scif on neutral territorv, and send out her boats on hos- tile enterprises, is an act of hostility much too im- mediate to be permitted." That the British did send out their boats on a hostile enterprise, is, we think, too clear to admit of a doubt. What, then, was Captain Reid to do, in the face of the moral certainty that the British were determined to capture his vessel ? Was he to permit them to come on board ; to surrender the brave men Vvdio looked to him for an example, to be carried to the prison at Dartmoor, or to be compelled to servo against their countrymen in an English frigate ? 11 Was he not rather to obey the dictate alike of common sense and military honor, that in doubtful emergencies it is safer and nobler to fight than to retreat ; and, be- yond all this, had he not a rifjht, upon every principle that should animate a commander, having done all that prudence and discretion could ask for, to strike one blow in defence of his ship ? We have entirely mis- taken the extent of the right of self-defence, if both law and reason did not justify him in firing upon the English boats. Bat, even in the absence of direct evidence, the pre- sumption that the boats were armed, and that the inten- tion was hostile, is extremely strong. We were at war with England. When the British squadron came into the pore and discovered the American brig, it was well understood that all the vessels present were ships of war. It is absurd to say that these four boats were sent merely to reconnoitre the brig. Such a force was en- tirely unnecessary for that purpose. Such a thing was never heard of as that, in the evening, in time of war, a naval commander would approach a vessel, which he did not know to be friendly, with four boats filled with unarmed men. And even if Fausset's statement be assumed to be correct, and one boat only approached the brig, it is extremely improbable that, if his boat were unarmed, and his intentions were friendly, he would, without hailing the brig, have come sufii. ciently near to her to reach her with a boat-hook, when it was just as easy to ascertain what vessel she was without coming so near as to excite suspicion Espe- cially would he have been cautious not to come too near, when, as the protest states, "Captain Reid re- peatedly hailed them and warned them to keep off." It is also worthy of remark that Fausset's deposition, 12 made on the 27tli of September, 1814, was not produced until thirty-five years afterwards, when it first made its appearance, on the 29th of September, 1849, in the letter of Count Tojal to Mr. Hopkins. It is singular, too, that a new and entirely different version of the transaction is given in the letter of Senor De Castro to Mr. Barrow, of the 3d of August, 1843, in which he says, " it is affirmed, on the part of Great Britain, that they (the boats) only carried inoffensive men, who were going ashore from their ships on duty, and that they casually met the American brig when she was pre- paring to leave the port of Fayal." It is enough to say of this statement that it directly contradicts Fausset's deposition, and that both cannot be true. In addition to the positive evidence and the presump- tions, there are also the contemporary declarations of the official persons at the island. Mr. Dabney, the American consul at Fayal, in his official note to the governor of the Azores, dated at nine o'clock in the evening of the 2Gth of September, 1814, says: "In violation of the neutrality, &c., the shipsof-war of his Britannic Majesty, now lying in this port, lately ordered four or five armed boats to surprise and carry off the American armed schooner General Arm- strong. * * * The boats were repulsed, but a new and more formidable attack is now feared," &c. On the 28th of September, 1814, the governor of the Azores, Elias Jose Ribeiro, states in his despatch to his govern- ment as follows : "We are now, for the first time, made witnesses to a horrible and bloody combat, occasioned by the madness, pride, and arrogance of an insolent British officer, who would not respect the neutrality maintained by Portugal in the existing contest between his Britannic Majesty and the United States of America." 13 He also says: "I learned that a boat had been sent from the British ships-of-\var to examine the privateer, and on its return three others had been sent armed, and that the captain of the privateer not wishing to allow them to come on board of his vessel, a fire was be2:un on both sides." The governor then states that he desired a conference with the British commander, that he " might dissuade him, if he were a reasonable man, from continuing the hostilities begun so insolently, and repeated, to the scandalous contempt of the law of nations." He further says that he conceives the British com- mander " was aware of the great evil done by his hos- tile expeditions in a port not only neutral, but, more- over, belonging to an old friend and ally of his nation;" and that he wishes to show him his " resentment on account of the insults committed by him ;" nor did he consider his invitation to visit his ship " either proper or decorous." The British commander, in answer to a request by the governor that he would respect the neutrality of the port, states, on the 26th of September, " that one of the boats of his Britannic majesty's ship under my command was, without the slightest provocation, fired on by the American schooner General Armstrong, in consequence of which two men were killed and seven were wounded ; and that the neutrality of the port, which I had determined to respect, has been thereby violated. In consequence of this outrage, I am deter- mined to take possession of that vessel." To this the governor replied: "I must, however, assure you, sir, that from the accounts which I have received, it is certain that the British boats were the first to attack the American schooner." 14 It appears, also, from the diplomatic correspondence, that the United States always asserted, and that Por- tugal for a long time admitted, that the British were the a2:2:ressors, and that there was a last claim against Portugal. In the letter of the Marquis d'Aguiar, the Minister of Foreign Aluiirs, to Lord Strangford, the British minis- ter, of December 22d, 1814, he speaks of " the outra- geous manner in which that commander violated the neutrality "'^ "'■■ by audaciously attacking the Ameri- can privateer,'' and of " the base attempt of the British commander, at the time he commenced the unprovoked attack on the American privateer, to attribute those violent measures to the breaking the neutrality on the part of the Americans in the lirst instance." He states, also, that the Prince Regent had " directed the minister at London " "' to require satisfaction and indemnification not only for his subjects, but for the American privateer, whose security was guarantied by the safeguard of a neutral port." Mr. Sumter, the American minister at Rio, in hisletter of January 1, 1815, to the Marquis d'Aguiar, speaks of reparation to the Prince Regent of Portugal, for so " rude and degrading an attack upon his sovereign authority." In his letter to Mr. Sumter the Marquis speaks of "the manifest violation of his territory (by the British) in the infringement of its neutrality." In Mr. Monroe's letter, of the 3d of January, 1815, to Mr. Sumter, he says : " The growing frequency of simi- lar outrages on the part of Great Britain renders it more than ever necessary for the government of the United States to exact from nations in amity with them a rigid fulfilment of all the obligations which a neutral char- acter imposes." 15 On the 14th of :March, 1818, Mr. Adams, in a letter to the Portuguese minister at Washington, said: "It is hoped your government will, Avithout further delay, grant to the sullerers by that transaction the full in- demnity to which they arc by the laws of nations entitled." In the letter of Mr. Dickens, the acting Secretary of State, of the 'iOtli of May, 1835, to Mr. Kavinagh, the American charge at Lisbon, he says: "The Portuguese authorities at that place having failed to afford to this vessel the protection to which she Avas entitled in a friendly port, which she had en^.ered as an asylum, the government is unquestionably bound by the law of nations to make good to the sufferers all the damages sustained in consequence o^" the neglect of so obvious and acknowledged a duty." J\Ir. Kavanagh states to Mr. Forsyth, from Lisbon, on the 30th of January, 1836: " It appears that the British commander alleged at the time that the crew of the General Armstrong had provoked the lirst attack by firing into his boats; but the protest made and signed on the 2Tth of September, 1814, by Captain Reid and all his ollicers, and corroborating circumstances, dis- prove this allegation." He repeats his demand for indemnity in his letter of the 17th of February, 1837, to the Portuiruese Minister of Foreign AtFairs. In his despatch to Mr. Forsyth, of the 18th of March, 1837, he states that he had had an interview with the minister, who " spoke of the claim as one which at pre- sent could not be considered admissible;" and who said that " the Portuguese force at Fayal was alto- gether incompetent to protect the privateer against the assailants." On the 15th of January, 1842, Mr. Webster wrote 16 to Mr, Barrow, concerning the claim: "Its justness, I believe, has never been denied." And Mr. Barrow makes the same statement in his letter of May 25th, 1842, to the Portuguese Minister of Foreign Affairs, Mr. Webster, in his letter to Mr. Barrow of the 18th of August, 1842, speaking of this claim and of that of James Hall, says: "Both these claims are regarded as just by this government, and will not be relinquished under the objections heretofore made to them by the Portuguese government, which are entirely unsatis- factory." Mr. Barrow, in his letter of February 20th, 1843, to Mr. Webster, says: "The pretexts for delay in the two former cases (the General Armstrong and James Hall) are of a very frivolous character, and such will con- tinue to be given, I am convinced, until a very decided tone is assumed by our government." On the 20th of March, 1843, he writes: " There has been from the first a manifest disposition, I might say determination, on the part of the Portuguese government "^^ *^ * * to avoid the liability to which they are subject by the law of nations in the case of the General Armstrong." Such are the contemporary declarations of witnesses who saw the transaction; the indignant remonstrance of the governor of the Azores ; the admissions of the Portuguese government of the existence of a claim on our part, contained in their demand for an indemnity from England, on account of the loss of the brig, and the repeated assertions of our government of a viola- tion of the neutrality by the British. Until the 4th of August, 1843, there had been no denial, but an ad- mission of the justice of this claim upon them. But on that day the Portuguese minister, in a letter to Mr. Barrow, says: "The accounts all agree that the Ame- 17 American brig, under the pretext that four boats from the said British vessels \Yere approaching her, fired upon them, killing some of the men and wounding others. * * '■'■ It is, however, an undeniable fact that the first shot came from the American brig, tltus evidenthj co7islituUng her the aggresso7\ and a violator of the neutrality of the port of a friendly nation." Now the Portuguese minister must be presumed to have read the evidence on the subject concerning which he thought fit to write a letter, and his most extraordinary declaration that all the accounts agreed that the American brig was the aggressor, must have been made in the face of the letter of the governor of the Azores, of the 27th of September, 1814, that it was "certain that the British boats were the first to attack the American schooner;'' and of his other expressions of indignation at the conduct of the British. Whatever it arose from, whether from an inability to appreciate the evidence, a disposition to procrastinate, or an un- willingness to oflend the British government, its incor- rectness is manifest. It may be remarked, that among the published documents are to be found allusions to the influence of the British minister in hinderinc: the payment of this claim by Portugal. It is singular, indeed, that the Portuguese government should not have discovered that the evidence proved the Ameri- cans to have been the aggressors until twenty nine years had elapsed since the affair, and until the pro- duction of Fausset's deposition, which had slumbered in obscurity during that period. That the British government felt an interest in the matter, appears from Mr. Clayton's speech in the Senate, on the 26th of January, 1855. He says that the British minister "desired to confer with me, on one occasion, in regard IS to the matter, but I declined any conference with him on the subject. I thought the British government had no rio'ht to interfere." The governor of Fayal made no complaint that the Americans had violated the neutrality of the port. That discovery, as has been stated, remained to be made by the Portuguese minister in 1843. The gov- ernor did, however, complain of Captain Lloyd, and remonstrated against his proceedings; and even the minister, in his letter of August 3, 1843, says, that "the government of his Britannic majesty, appreciating the rashness with which his officers acted in a neutral port against said brig, had no hesitation in apologizing to the Portuguese government." This statement, how- ever, was denied by the British government, as appears from the letter of Count Tojal to Mr. Clay, of the loth of May, 1850. It does not appear to be necessary to settle the question of veracity between them. Considering it, then, as proved, that the British were the aggressors, the cpestion arises, whether it was the duty of Portugal, according to the law of nations, to make pecuniary compensation for the damages sus- tained by the injured party. Upon this point the opinion of the government of the United States, as expressed through the various Secretaries of State, is entitled to much weight. That Portugal was bound to pay the damages sustained, is asserted by Mr. Monroe, Mr. Adams, Mr. Forsyth, Mr. Upshur, Mr. Webster, and Mr. Clayton. Mr. Forsyth, in his letter of September 21, 183G, instructs Mr. Kava- nagh to "demand li'om the Portuguese authorities, the highest amount of damages which in your judg- ment a prudent and conscientious man would feel him- self justified in asking, were he prosecuting his own 19 claim." The same instructions are given to Mr. Clay, in Mr. Clayton's letter of March 8, 1850. It is doing the eminent men who have occupied the responsible positio i of Secretary of State, great injus- tice to assert that when they alleged that Portugal was liable in damages, they did not express their honest convictions, but condescended to the position of an ad- vocate. They had no temptation to say what they did not believe. The claim was not made a party question, nor did it have any connection with party politics. There was no call upon them to hazard their reputation as statesmen and jurists, upon a position which they did not believe to be tenable. But the case of Portugal is attempted to be put on the ground that she was unable to protect her neu- trality. To this position there are two answers. In Count Tojal's letter of March 9, 1850, to Mr. Clay, he says that, "no neutral is obliged to give pecuniary indemni- fication for damages and material losses that may have been caused in its ports by one belligerent to another, once it can be shown that it has used all the means at its disposal to give protection." The answer to this is thus strongly put by Mr. Clay, in his letter to Count Tojal, of March 15, 1850. He says : " What were the means in her power? She had the physical power of more than one hundred regular soldiers, some artillery, a fort, the power of the popu- lation of Fayal, about thirty American seaman who requested to be allowed to defend their brethren, great advantage of position, and the immense moral power of right against wrong ; these were the means she had. Did she use all or any of them to protect and defend the privateer ? Confessedly she did not ; she even 20 went beyond mere failure to defend or protect, when she prevented the American seamen from rendering whatever assistance was in their power. And if she did not use all these means, is it not clear from his excel- lency's own argument that she is bound to indemnify? " The whole tenor of tlie despatch of the governor of the Azores, of the 2Sth of September, 1814, shows that he uried no means whatever with the British commander but expostulation. Although indignant at the outrage upon the sovereignty of Portugal, the despatch needs only a careful perusal to make it apparent that the gov- ernor was paralyzed by the position in which he stood, and that he had no firmness. He seems to take credit to himself for refusins; to consent that the American seamen might aid in defending the brig, for taking away from the Americans, as they came ashore, their swords and pistols, and for the energetic feat of order- ing the standard not to be hoisted over the castle the next morning to shov/ his resentment at the conduct of the British. He mentions also his decided act, in seiz- ing two American seamen, who, during a funeral, " gave shouts of joy on account of the fight and retreat in which these officers lost their lives." A\\ these might have been very bold and gallant acts, but unfortunately for him, his own government did not approve of his conduct. The Marquis d'Aguiar, the Portuguese Minister of Foreign Affairs, in his letter to Lord Strangford, of the 22d of December, 1814, says, that if it were not for the idea that he desired to protect the iiiliabitants from the ravages which the British com- mander would not have failed to infiict, "the censura- ble moderation of the governor during these outrages would have induced his royal highness to have imme- diately caused a process to have been instituted for the 21 punishment of that officer." The question is not whether Portugal was a stronger or a weaker nation than Great Britain. It is simply whether atFayal, and under the existing circumstances, the governor did what his duty required of him as an officer of a neutral nation; and his government answered that question by saying that he did not do his duty. With these facts and admissions, it is almost idle to say that Portugal was r.ot bound to make indemnity, because she was weak. Bynkershoeck says: "If it be the duty of the sovereis^n to use his utmost endeavors to ettect that purpose, it follows that he must do it at his own expense. Nay, by going to war, if other means are not sufficient. Such is the law which is observed among all nations." — Byukershoeck's Law of "War, by Diiponccau, p. GO. But admitting, for the sake of argument, that the governor of the. Azores used all the means in his power, and was unable to resist the British force, the other answer to the position is, that the law of nations did not relieve her from the obligation to make pecuniary compensation. Now if Portugal was unable to protect her neutrality, that was her misfortune. Chancellor Kent says: "If the enemy be attacked, or any capture made under neu- tral protection, the neutral is bound to redress the in- jury and effect restitution." — 1 Kent, 122. That is, if the enemy be attacked, the neutral is bound to redress the injury ; if a capture be made, the neutral is bound to eltect restitution. The question here does not relate to the restitution of property captured, but to the redress of an injury from a hostile attack. How is an injury, sustained by reason of an attack upon the property of an enemy's citizen, to be redressed but by paying for 22 the injury done ? The position is stated absolutely and without any provisos or limitations. Can it be that a neutral is bound to restore a ship captured in its waters ; but if the ship be captured, and then sunk by the enemy, no duty whatever rests upon the neutral ? The same reason which requires a neutral to restore a captured vessel, calls on it also to make compensation where a vessel is destroyed. The same principle lies at the foun- dation of either duty. The position that a neutral is bound to make restitution, but not compensation, may thus be stated: If the neutral sees a ship captured in its waters, and is able to eifect restitution, it is bound to do so. But if restitution cannot be made from what- ever cause, then the neutral is to remonstrate to the belligerent who has done the wrong, and who knows that the neutral has done all it could ; and if the bellig- erent refuses to do anything in the matter, still the law of nations is satisfied and the affair is settled. Such was the course adopted in the present case. The vessel was destroyed by the British, and the neutral remon- strated, consequently, the neutral was absolved from all obligation to make compensation. This distinction be- tween restitution and reparation, although inappreciable by the unassisted reason, may exist in virtue of some mysterious afflatus, which is supposed to inspire the councils of diplomatists. It is enough to say that it deprives the law of nations on this point of all vitality, and reduces it to a solemn absurdity. When a ship is destroyed this distinction releases the neutral from the obligation to do what is physically impossible, but it absolves the neutral from the duty of doing the only thing in its power, that is, to effect restitution. It is unnecessary to take the position that a neutral is bound always to have in all its ports a force sufficient 23 to resist any attack that might be made. This would be unreasonable; for even England, with her powerful navy, could not accomplish it. But it is equally un- reasonable to say that because a neutral did not happen to have at any given place a sufficient force to protect its neutrality, therefore it is absolved from all duty, happen what may. That Portugal, relatively to Eng- land, was a weak nation, may be admitted. But she assumed to be neutral in the war between England and America. As she claimed the rights, so she was sub- ject to the obligations of neutrality. If she was not strong enough to cause herself to be respected as a neutral, she should not have placed herself in that position. She chose her part in the great republic of the world, and stood in relation to other nations upon a common ground with them. It is said by Vattel, Prel. ch. ^ 18, "since men are naturally equal, and a perfect equality prevails in their rights and obligations, as equally proceeding from nature, nations composed of men, and considered as so many free persons, livin"- together in the state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not in this respect produce any dilTerence. A dwarf is as much a man as a giant ; a small republic is no less a sovereign state than the most powerful kingdom." This is a clear and precise statement by an eminent writer of the reciprocal rights and obligations of nations, whatever may be their relative power. As weakness does not deprive a nation of its rights, it does not release her from the obligations which she owes to other nations. A nation may be weak as regards armies and fleets, but she may be wealthy. It may be a part of her policy to avoid the expenditure of her resources in military and naval pre- 24 paration. She may choose to lavish her revenue upon the empty forms and pageantry of government, disregard- ing- and careless of the advance and happiness of her people. But it would be strange indeed if the course she might see fit to adopt of her own free will, should be received as an excuse for her non-performance of the duties which she would exact towards herself from nations whose government might bebetter administered, and whose revenues might be more carefully expended. In Molloy's Treatise De Jure Maritime, B. 1, Ch. 1, sec. 16, a case is stated which affords an exact precedent for the one before us. After mentioning several cases where hostile encounters were forbidden in neutral ports, he says: "But they of Hamburgh were not so kind to the English when the Dutch fleet fell into their road, where rid at the same time some English mer- chantmen, whom they assaulted, took, burnt, and spoiled; for which action, and not preserving the peace of their port, they were, by the law of nations^ adjudged to answer the damage, and I think have paid most or all of it since." It is not to be expected that many precedents are to be found exactly resembling the present case, v/hich was so peculiar in its circumstances. During her long war with France, England, by her powerful navy, was en- abled to set at defiance the law of nations in respect to neutrals with impunity ; but the case cited from Molloy shows that the English claimed from Hamburgh, in 1665, the same compensation in damages which the present claimants demanded from Portugal. It is un- necessary for us to pursue the investigation of the ques- tion as to the liability of Portugal any further. We have the opinion of the most eminent jurists and diplo- matists of the United States, the authority of Molloy, 25 and, as we thiuk we have shown, the intrinsic propriety and reasonableness of the position. We have found nothing in the books which deserves to be weighed ag-ainst these views. Even Flanders, in his treatise on Maritime Law, (p. 45,) although he states as his indi- vidual opinion that the reasoning which maintains the obliiration of the neutral to answer in damages, seems to him to be inconclusive, admits that it is held by writers on the law of nations that the neutral is bound to redress the loss himself. But he cites no authority to the contrary, and he can find no stronger ground on which to found his opinion, than that the neutral is a host extending his hospitality to a belligerent who comes into his port. But, with submission, we conceive that such is not the relation in which the parties stand to each other. A nation which assumes to be neutral has certain duties which she is compelled, by the law of nations, to perform. It is said by Vattel, book 3, ch., 7, § 118 : "A neutral nation preserves towards both the belligerent powers the several relations which nature has instituted between nations. She ought to show herself ready to render them every office of humanity reciprocally due from one nation to another. She ought, in everything not directly relating to war, to give them all the assistance in her power, and of of which* they may stand in need." It thus appears that the neutral is not a host extending hospitality ex merd gratia, but is part of the great republic of nations, bound to render offices of humanity. The parallel of this writer, therefore, foils, and his opinion must fall with the inaccurate figure which he uses to illustrate his views. Our opinion is, that Portugal was bound, by the law of nations, to make to the claimants pecuniary com- pensation. 4 2G The proposition to refer this case to an arbitrator, came from the Portuguese government. The course of the United States had been consistent throughout. We had always maintained that we had a valid claim upon Portugal ; that the facts showed that the British were the aggressors, and that, by the lavf of nations, Portugal was bound to redress the injury sustained by our citizens. The first remark on the subject of an arbitration we have found, is in Mr. Clayton's letter of the 8th of March, 1850, when he wrote to Mr. Clay, the American charge d'affaires at Lisbon: " In regard to a reference of our claims to an arbitrator, 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." On the 30th of April, he wrote to the Portuguese minister at Washington, that the matter would be referred to Congress, "should the Portuguese government persevere in the refusal to adjust and settle what are believed to be the incontrovertible claims of American citizens upon that government," and he rejected the proposition of the minister to submit this claim to arbitration. The treaty between the United States and Portugal was concluded on the 2Gth of February, 1851. The first article provides that Portugal shall pay to the United States a sum equivalent to the indemnities claimed for several American citizens. By the second article it is agreed that the parties, " not being able to come to an agreement upon the question of public law involved in the case of the American privateer brig General Armstrong, that the claim presented by the American government, in behalf of the captain, officers, and crew of the said privateer, should be submitted li to the arbitrament of a sovereign, potentate, or chief of some nation in amity with both the high contracting parties." In relation to the arbitration we may remark, that in whatever we may say upon the subject, we do not mean to be understood as denvinsr the ris-ht of the government of the United States, acting for the whole people, to submit to arbitration any controversy with a foreign government, in which public interests are alone involved. Nor is it necessary to deny the power of the United States to submit to arbitration the claim of one of its own citizens upon a foreign government which it has been prosecuting, in such a way as to pre- clude itself from again pressing that claim upon such foreign government, or insisting upon it in any way as a cause of war, or a matter of national concern. There is a broad distinction between the submission of a case involving national interests exclusively, and the submis- sion of a case relating to private rights alone, where the only matter of public concern is the general duty of a government to protect its citizens. Where a case of the latter description is submitted, it must be done with a due regard to the rights of the citizen. If his rights be disregarded and sacrificed, it is the dictate alike of law, common sense, and justice, that the gov- ernment by which his rights have been sacrificed should make him restitution. We think it cannot be denied, that to relieve a government from liability to a citizen on this account, it should appear that the case was one proper to be submitted; that he had an oppor- tunity of being heard before the arbitrator by argu- ment and proofs ; that the award was certain, definite, and within the submission ; and that the arbitrator did not exceed his powers. 28 In the first place, we are unable to perceive what good and sufficient reasons there were, that required the United States to submit the claims of their citizens upon a foreign government to arbitration. We find no reasons alleged in the correspondence that led to the submission. A citizen of this republic is entitled to ask his government, respectfully, why a given course was pursued in relation to his private rights. The gov- ernment holds its public powers by no higher tenure than the citizen possesses his private rights. Public powers are delegated, and private rights are possessed, by the will and assent of the people. The day is gone by, at least on this side the Atlantic, when the rights and interests of millions can be settled definitively by diplomatists in secret session, and when no other answer to a complaint is condescended, than that such matters are mysteries of State, into which even the party aggrieved has no right to incpiire. We entrust our public interests to our public officers, in the confi- dence that they will discharge their duty. If those duties are neglected or mismanaged, we find a remedy in the ballot-box. But when a citizen has a claim upon a foreign government, which from the nature of the case, as he is powerless against the foreign govern- ment, can only be redressed through the agency of his own government, and that claim is sacrificed by his government, he has no remedy, unless his government will indemnify him. He may, surely, with propriety, ask the question, why his claim was submitted? In the present case, that the British were the aggressors was a fact, patent, known at the time to hundreds of persons, which we had always asserted to be true, and which the evidence proves to be true. No impartial Tiian can investigate the evidence and reach any other 29 conclusion. Not only is the evidence on the point overwhelming, but such has always been the position taken by the United States from 1814 to 1841, by every administration, every Secretary of State, every American minister, and, until the year 1843, admitted to be true by the Portuguese government itself. If, as Mr. Webster wrote to Mr. Barrow on the 13th of January, 1842, the justice of this claim had never been denied, why did that eminent man consent to submit it to arbitration ? What call was there upon him to ])ut it out of the power of the United States to perform that iirst and most sacred of duties, protection of the rights of the humblest citizen? A party who has a claim, of which no one denies the justice, is a most unlit manager of his business, when he submits it to arbitration, and thereby gives the arbitrator a discre- tionary authority to allow or reject it at his pleasure. We had always asserted that Portugal was bound by the law of nations to redress this iniurv ; and there is notliing in any part of the diplomatic correspondence on our part that tends to show that we ever intended to recede from this position. We had positively asserted that both the law and the facts were with us. We had expressed our views in every form. We had presented a firm, but temperate statement. We had resorted to argument. We had finally asserted our fixed determination that the injuries of our citizens must be redressed. Such being our position, the in- quiry may properly be made, why the various ques- tions in this case, involving the private rights of American citizens, should be exposed to the hazard of being loosely and partially considered by an European sovereign who, to say the least, would be as likely to be influenced by considerations of state policy as by a 30 regard to individual rights. If the government did not see fit to have recourse to arms to enforce the claim, they might, at least, have abstained from com- promising the rights of the claimants. But when the government were convinced that the facts were as the claimants alleged, the conclusion of law followed of course. The claimants alleged that the British were the aggressors. The government believed that such was the case, and that Portugal was bound to pay the claim. These positions, then, being distinctly taken, it may safely be said, that if this was a proper case for a submission, no case ever existed that would justify a resort to hostilities, so long as an arbitrator could be procured to determine the controversy. But whether this case was, in itself, under the cir-. cumstances, proper to be submitted to arbitration, there is a further view to be taken of the submission. On the 13th day of April, 1850, (Doc. 53, page 56,) Count Tojal wrote to Mr. Clay that the Portuguese gov- ernment " will now propose to refer this affair to the decision of a third power." In his letter of July 6, 1850, (Doc. 53, page 73,) Count Tojal refers to several claims of American citizens upon Portugal. A list of them is given with the amount claimed in each. They were ten in number, and the aggregate amount was $233,327. The amount claimed in the case of the Gen- eral Armstrong was $131,600. The others amounted to $91,727. Count Tojal then says: "The government of her Majesty, animated with the same desire, &c., yields to the force of circumstances, and without again reverting to the justice or injustice of the claims pre- sented by the government of the United States, and only pro honopacis^ offers to pay the said mentioned claims, amounting to $111,727, according to Mr. Clay's account, 31 with the only exception of that relating to the privateer General Armstrong. In respect to this claim the under- signed cannot deviate from the proposal heretofore made to Mr. Clay, that of so important a claim being submitted to the decision of a third power." It is to be noticed that the justice and legality of the claims, which Count Tojal thus oflered to pay, had been denied as strenuously as the claim relating to the Gen- eral Armstrong. Why the Portuguese government were unwilling to pay this claim, is indicated by the following extract from the same letter of Count Tojal: "Her ^[ajesty's government, besides the arguments contained in the notes lormerly addressed to the government of the United States, finds its judgment, and the manner of weighing the question of the privateer General Arm- strong, strengthened with the opinion of her Britannic Majesty's government, which has always deemed this claim of the government of the United States unjust." Why, again, it was necessary for Portugal to ask the opinion of England, is shown by another extract from Count TojaFs letter, in which he says: " The subsisting relations between her most faithful Majesty's govern- ment and that of her Britannic Majesty, oblige the un- dersigned to communicate to the British government all that has taken place." But whatever influences operated upon the Portuguese government, and it is not difficult to appreciate them, the proposition made by Count Tojal was not divisible. It was complete in itself. It was not an absolute pro- posal to pay the other claims, but to pay them, and to submit .this to arbitration. As Portugal had, up to the time of the proposition, invariably denied the justice of the other claims, and as she said she offered to pay them and submit this, on\y p-o bono pacis, we could not have 32 called on her to pay the other claims, unless we agreed to submit this to arbitration. It would have been un- reasonable in the extreme if our government had called upon Portugal to pay the other claims without agreeing to submit this. But that the proposal was one and in- divisible is, we think, too clear to admit of question, or to need argument in its support. When, therefore, our government decided to accept the proposal, as it did, by Mr. Webster's letter of the 23d of August, 1850, it assumed the right, which, in the present case, we are not disposed to deny or inquire into, of exposing the claim of the owners of the General Armstrong to the chances of an arbitration, for the purpose of procuring thereby the settlement of the remaining claims upon Portugal, and of putting an end to all embarrassing- negotiations with that power. The case does not call upon us to deny the right of the United States to submit to arbitration the claim of a citizen upon a foreign government without his assent, or even against his j^rotest, and the question need not be investigated. Of course, his assent would estop him afterwards from objecting that a submission was entered into. As there is evidence upon this point, we have examined it for the purpose of showing the relative positions of the claimants and the United States. On the 5th of September, 1850, Mr. Reid, the agent for the claimants, wrote to Mr. Webster: " I perceive it is proposed to refer the claim of the owners of the brig General Armstrong to the King of Sweden for arbitration. I hope the Department of State will make no final arrangements in this case, under the present circumstances, and I desire that it may be left open until I can have a conference with you on the subject. I hope no steps will be taken which will * v:- -X- * 3 o compromis? the riglits of the claimant?, until T can have the pleasure of seeing you." To this letter Mr. Web- ster answered, on the 13th of September, that the pro- position of Count Tojal to pay the several claims pre- ferred by the American government against that of Portugal, with the exception alone of that of the General Armstrong, which was to be referred to the King of Sweden, &c., had already been accepted by the government. We look in vain here for any evidence of assent to the submission. When Mr. Rcid hears that it is pro- posed to submit the claim, he hopes that the matter will be left open until he can have a conference with Mr. Webster, and that no steps will be taken that will com- promise the rights of the claimants until he can see him. Do these words mean the very reverse of what they express? Does ^Ir. Reid mean, when he uses this language, to say that he assents to the submission? If so, language was given us to disguise our thoughts, and not to express them. But not only does he not assent to the submission, but it was agreed to without any opportunity for him to assent or dissent, and with- out his knowing anything about it; for Mr. Webster informs him that the proposal of Count Tojal had already been accepted. If there ever were a plain case of dissent, it is furnished by Mr. Reid's letter. There is no evidence of his acquiescence in the sub- mission, for all ho did was to request that he might be heard before the arbitrator, after he was informed that the treaty had been concluded. It may be proper to notice, in this connection, a position taken by the solicitor, that a claimant, in a case like this, is conclusively bound by the action of his government. In the instructions to Mr. Kavanagh, 5 34 of the 21st of September, 1836, Mr, Forsyth says: "It is well understood that afier asking the interference of their government to procure redress for the injuries they suppose themselves to have sustained, the parties must abide by such settlement as that government may make.'' This proposition cannot be correct in the broad language used. No individual can urge his claims upon a foreign government with any hope of success, except- ing that derived from' their sense of justice. A private person, armed with no power of enforcing his rights, and unassisted by his own government, cannot speak in sufficiently impressive tones to insure his being heard by a foreign nation. His own government, in the dis- charge of that duty of protection which it owes to its citizens, must speak for him. " If any complaint is to be made on the part of the captured, it must be by his government to the neutral government for a fraudulent or unworthy or unnecessary submission to a violation of its territory." — 1 Kenfs Com., 121. If Mr. Forsyth's statement be correct, the government would be justified in making use of and surrendering the claim of one of its citizens for the purpose of procuring the payment of the claim of another. If, by saying that " the parties must abide by such settlement as the government may make," it be meant only that the party, after such settle- ment has been made, cannot enforce his claim against the foreign state, the position is correct. But if it be meant that, whatever settlement the government of the claimant may make, it incurs no responsibility for the claim to its own citizens, the doctrine cannot be ad- mitted. In the case of the Baron De Bode vs. Regina, 17 Eng. L. & Eq. Rep., 14, Lord St Leonards, the Lord Chancellor, said: "It is admitted law that if the sub- ject of a country be spoliated by a foreign government, 35 he is entitled to obtain redress from tlie foreign gov- ernment throu":h the means of his own c^overnment. But if, from weakness, timidity, or any other cause on the part of his own government, no rtidress is obtained from the foreigner, then he has a claim against his own country. Here is a compromise of the two govern- ments ; the question is, how far his claim is affected by it." It cannot be supposed, however, that Mr. For- syth intended to convey the idea that whatever course the government might pursue, in no event would it be liable to the claimant. Such a proposition would be, in substance, that the government is not responsible for wrong ; a ground which, we presume, no one would seriously attempt to maintain. Before examining the objections that have been made to the award, it is proper to consider the position taken by the claimants, that they were not permitted to be heard before the arbitrator. The treaty having^ been ratified by the Senate on the 7th of March, 1S51, on the lOth of March Mr. Web- ster wrote his letter of instructions to Mr. Hadduck, who had succeeded ^[r. Clay as our charge at Portugal. The material part of this letter refers to the third arti- cle of the treatv, which is as follows: "So soon as the consent of the sovereign, potentate, or chief of some friendly nation who shall be chosen by the two high contracting parties, shall have been obtained to act as arbiter in the aforesaid case of the privateer brig "General Armstrong," copies of all cor- respondence which has passed, in reference to said claim, between the two governments, shall be laid before the arbiter, to whose decision the two high con- tracting parties hereby bind themselves to submit." Mr. Webster directs Mr. Hadduck " to compare and 3G authenticate, jointly with the Portuguese government, the copies therein specified. You will understand, of course, that these copies are limited to such communi- cations as have passed between the American legation and the Portuguese government at Lisbon, and between this department and the Portuguese legation in Wash- ington." On the 12th of July, 1851, Mr. Webster Avrote to Mr. Hadduck, and after stating the instruc- tions contained in his previous letter, says: ''To pro- vide, however, against an omission of any important part of the earlier portion of the correspondence — I mean that which passed in 1814 and 1815, in Rio Jan- eiro, where the court of Portugal at that time resided, and which it could not have been intended to exclude — I transmit to you herewith a printed copy of the cor- respondence as communicated to Congress on the 15tli December, 1845." This letter, however, reached Mr. liadduck too late, as the treaty had been signed on the 23d of June previous. The papers omitted were the v^^hole of document 14 of the Senate, 1st session 29th Congress, covering fifty-eight pages. It is said that the whole of this document is contained in substance in the subsequent correspondence. One letter, how- ever, was omitted, upon which much stress was laid in the argument on the question of lact, as to the party who made the first ajj-gression. This was the letter from Mr. Greaves, the British consul, dated on the 27th of September, 1814, to the governor of the Azores, informing him that if the governor should permit the masts to be taken from the schooner, the commander of the squadron would regard the island as an enemy of his Britannic Majesty, and would treat the town and castle accordingly. This was relied upon as tending to prove that Captain Lloyd desired to capture the brig and use her in his operations against this country. .?7 But, not only was no provision made for laying before the arbitrator all the correspondence which might throw light upon the case, but the claimants were refused the privilege of being heard before the authority which was to decide upon their rights. Upon the Tth of July, 1851, the agent of the claimants filed, at the Depart- ment of State, a written argument and statement of facts, which he requested might be sent to our minis- ter, that he might submit it to the arbitrator, which was verbally refused, on the ground that the terms of the treaty precluded it. To two notes to the Secretary of State, to the same ellect, he received no answer. He then requested the President that he might be sent to France with the papers and documents, that he might present his case through Mr. Ptives ; but this was also refused. It may well be asked here, why was the case so sub- mitted that the party interested could not be heard? If the United States, ia the plenitude of their power, see fit to submit the claim of a citizen to arbitration without his assent, ought they not to make the most careful and ample provision that he shall be fully and fairly heard, and that he shall have all reasonable oppor- tunity to lay before the arbitrator the evidence on which he relies? An award made without the party having had an opportunity to be heard, rests neither upon law nor justice. If the case was sufficiently national in its bearings to be submitted to the arbitra- tion of an European prince, it was, surely, important enough to deserve a careful investigation into the facts, and the parties, whose pecuniary interests were involved, were the very persons, of all others, to whom to en- trust such an investigation. The position that every party should have an oppor- 38 tunity to be heard before the tribunal that is to pass judgment on his rights, needs no labored argument to support it. It has been repeatedly asserted by the most eminent jurists. In Rigden vs. Martin, 6 II, & Johns., 403, the court said : " That the parties ought to have notice of the time of niceting, is a position so strongly supported by common justice that it would seem not to require the aid of authorities. Every man ought to have an opportunity afforded him to be heard in defence of his rights." In Falconer vs. Montgomery, 4 Dallas, 232, it is said: " The plainest dictates of natu- ral justice must prescribe to every tribunal the law that 'no man shall be condemned unheard.' It is not merely an abstract rule, or positive right, but it is the result of long experience and a wise attention to the feelings and dispositions of human nature. * * ^'' Besides, there is scarcely a piece of written evidence, or a sentence of oral testimony, that is not susceptible of some explanation, or exposed to some contradiction ; there is scarcely an argument that may not be elucidated so as to insure success, or con- troverted so as to prevent it. To exclude the party, therefore, from the opportunity of interposing in any of these modes (which the most candid and intelligent, but a disinterested person, may easily overlook) is not only a privation of his right, but an act of injustice to the umpire, whose mind might be materially influenced by such an interposition." In the case of Lutz vs. Linthicum, 8 Peters, 178, Mr. Justice Story said: "Without question, due notice should be given- to the parties of the time and place of hearing the cause; and if the award was made without such notice, it ought, upon the plainest principles of justice, to be set aside.'' In Eimendorf vs. Harris, 23 Wend., 628, it was laid 39 down as a fundamental rule of construction in refer- ence to every transaction in the nature of a judicial proceeding, that the contract of submission necessarily implies that the arbitrator is not authorized or empow- ered to decide the question in controversy, without giving the parties an opportunity to be heard in rela- tion thereto. Mr. VYebster's construction of the 3d article of the treaty, which provided that the copies of the corres- pondence should be laid before the arbiter, excluded the presentation of any aigument. But tlie article con- tains no words of exclusion, and it is not to be pre- sumed that the arbiter would have refused to consider an argument for the claimants. The government re- fused to sanction, in any manner, the presentment of the case of the claimants to the arbiter, and without such sanction no private person would be permitted to intervene, of his own authority, between two nations. If Mr. Webster's construction be correct, then such a treaty, in violation of the plainest principles of justice, should not have been made. If his construction be wrong, then the agent was most unjustifiably hindered by the government from presenting his case. Whatever may be the true construction of the article, the claimants have suffered a wrong at the hands of the government, for which reparation should be made them. We come now to the consideration of the award, and it is necessary, in the first place, to ascertain the matter submitted to the arbitrator. The second article of the treaty is as follows : " The high contracting parties not being able to come to an agreement uj^on the question of public law involved in the case of the American privateer brig General Armstrong, &c., have consented that the claim pre- 40 sented by the American government, &c., should be submitted to the arbitrament of a sovereign," &c. The claim, then, was submitted, because the parties could not agree upon the question of law. It was not because they could not agree upon the facts, or the amount of the claim. Thus the matter in dispute was the simple question of law. As that question should be determined, so must be the award of the arbitrator. But that question was not determined at all, the award being founded solely upon the facts. If this construc- tion of the submission be correct, it follows that the award is void : firstly, because it does not settle the matter in dispute, and the matter submitted; and, secondly, because it does settle the question of fjxct, which was not submitted, and thus exceeds the sub- mission. But there is another view to be taken of the sub- mission. Although the question of law was that about which the parties were unable to agree, the claim was submitted, and this comprehends both the question of law and the question of flict. Having found the ques- tion of fact against the claimants, it is urged that this decision, involving the fact that the Americans were the aggressors, is conclusive against the claimants. Such would undoubtedly be the case if the claimants had had the privilege of being heard, by laying before the arbitrator their argument and proofs. But it is to be remembered, that in this case, not only was the sub- mission made without the assent of the claimants — not only were they denied all opportunity of appearing before the arbitrator — but the case, during all the period from the submission to the award, was in no condition to be heard. It had never been prepared for trial. The claimants had done all that was ncces- 41 sary for their immediate purpose : they had presented their daim to their own government, and had requested that it might be urged upon the government of Por- tugal. Mr. Webster did not suppose that all the evi- dence had been furnished on which the claimants rested their case, for on the 15th of January, 1842, he wrote to Mr. Barrow: "If the inadmissibility of the claim is made to depend upon the defect of evidence, or upon any other cause, you will ascertain precisely what further evidence is required in addition to that which has already been communicated by Captain Reid, and will be found on tile in your legation." The trans- action occurred in the harbor of Fayal, near to the shore, on a moonlight evening, and in the presence of innumerable witnesses. If the facts were to be con- tested, the claimants should have had the opportunity of procuring the testimony of those who witnessed the aftair, and of placing their case in the most favorable light. This privilege is not denied to the humblest suitor, in the most petty controversy. It has been denied to these claimants by the action of their govern- ment. They are remediless as to Portugal, for all claim is barred by the action under the treaty. Their just rights have been disregarded and sacrificed by the United States; and the question then arises, whether the United States are bound to make them compensa- tion. In relation to this point, we have the facts that the British were the aggressors ; that the owners of the brig had a valid claim upon Portugal for indemnity ; that the claim was submitted to arbitration by virtue of the power of the United States to do so, without the assent of the claimants ; that the treaty was so worded as, by Mr. Webster's construction, to deprive the claimants of 6 42 all opportunity of being heard in any manner ; that the United States refused tosancti3n their application to be heard; that they were not heard ; that the award was made without their privity, in their absence, and in violation of the universal principle that no one shall be condemned unheard ; and that they were entitled to be heard upon every principle of private justice, public law, and that regard to equity and fair dealing, with- out which, neither a nation nor an individual can ever be respected. It is entirely immaterial whether the question submitted was one of law or of fact. Even if we admit, for the sake of the argument, that upon the evidence now before us, it was doubtful which party was the aggressor, and even if we admit iu the same way that the validity of the claim upon PorLugal was a doubtful question, that does not at all affect the right of the party interested to be heard. So much the greater call was there upon the United States to pro- vide that they should be heard. The principles of justice are universal, and not local. They are as bind- ing upon the Emperor of the French as upon the humblest tribunal. Every step in this affair, from the acceptance of the proposal by Portugal to submit the case, to the ratification of the treaty, was the act of the United States alone. The award having been made against the United States, they are answerable to the claimants for the loss they have sustained, upon the principle that a nation, being entitled to the allegiance and obedience of its citizens, is solemnly bound, in return, to protect, not only their persons, but their property. It is said by Vattel, (ch. 2, § 17) : "If a nation is obliged to preserve itself, it is no less obliged carefully to preserve all its members. The nation owes this to itself, since the loss even of one of its members t3 weakens it, and is injurious to its preservation. It owes this also to its members in particular, in consequence of the very act of association ; for those who compose a nation, are united for their defence and common ad- vantage ; and none can justly be deprived of this union, and of the advantages he expects to derive from it, while he, on his side, fulfils the conditions. The body of a nation cannot then abandon a province, a town, or oven a single individual who is a part of it, unless com- pelled to it by necessity, or indispensably obliged to it by the strongest reasons, founded on the public safety." It is on this duty of protection that the duty of allegiance depends. We owe allegiance to the country where we were born, where we were educated, and under the protection of whose laws we live. To it we owe the sacrifice of our comfort, our property, and our lives, when the occasion requires it. And it is from the existence of these comprehensive duties on our part, that the reciprocal duty of protection arises. Our country is bound to protect our rights as indi- viduals ; and if this protection be not afforded us, she is bound to render us such an equivalent as it is in her power to bestow. Against another nation she is bound to assert our claims, fur she alone can meet such an antagonist on equal terms. If she neglects the sacred duty of protecting us in our rights, she is bound to make us compensation. These principles are no recent discoveries. They are as old as the institution of civil government. Their recognition by a state is the surest and firmest bond by which the citizen is attached to his government and his country. They embody the same idea expressed by the Lord Chancellor in the case of the Baron de Bode, to which we have referred, that " if, from weakness, timidity, or any other cause, on the part 44 of his own government, no redres s is obtained from the foreigner, he (the citizen) has a claim against his own country." In the case of Faruam vs. Brooks, 9 Pick, p. 239, Parker, C. J., intimates an opinion that there is an obligation on the government of the United States to procure redress for its citizens, or itself to reimburse them. In relation to the question of damages, no evidence has been laid before us. The sum claimed of Portugal is mentioned in the correspondence, but no proof of the damages sustained appears in the case. Upon this point testimony must be taken. f"t-- I W^ "" LIBRARY OF CONGRESS III II l|l||M!| |IIIM|I!