Compelled by her conduct to assume the offensive towards England, and deprived, in a great measure, of her national marine, Denmark had recourse, mainly through private armed vessels, to reprisals against the commerce of her enemy; and though the Berlin and Milan decrees and the other edicts of Napoleon were never formally adopted, yet the execution of the instructions against British commerce, between 1807 and 1811, led to the seizure and condemnation of numerous American vessels. In the latter year, a special mission was intrusted to Mr. George W. Erving, who was measurably successful in arresting further condemnations. As regards past transactions, the effort was without avail, but an intimation was given that when the maritime war was terminated, the subject might be resumed. To prevent those matters passing into oblivion, on two occasions,-in 1818 and 1825, the attention of the Danish government was called to the cases, and in exchanging, in 1826, the ratification of the commercial treaty, a note was addressed by the Secretary of State to the Danish Minister, to preclude all idea of indemnity being abandoned by the United States.

The reclamations were respectfully entertained, though at first met by a plea of poverty. Writing to the Secretary of State, November 20, 1827, Mr. Wheaton says: “You can hardly have an adequate notion how this country was impoverished by the war brought upon it by the unjust aggressions of England, and followed by the dismemberment of the kingdom, at the peace. If they had remained neutral, their commerce and navigation must have sensibly declined at the latter epoch. But when we consider that they lost, at a single blow, their navigation and all their capital engaged in commerce; that they made immense pecuniary sacrifices to the faithful observance of their alliance with France; that the kingdom, with its diminished territory, population, and resources, is now staggering under a debt of upwards of fifty millions of dollars, we cannot wonder at their reluctance to enter into new engagements. They have no means of replacing the capital thus lost. France,

after repeated evasions, has, at last, peremptorily refused to repay them a debt of the most sacred character, being for supplies furnished the French troops, beyond the stipulations of the alliance. This is their condition, although the king is a man. of very simple habits, and observes the most praiseworthy economy in his household, and in other respects, except the army, which has been his hobby from his youth. But the former condition of the kingdom has entailed upon him a numerous pension list, and the burden of supporting establishments quite disproportionate to its diminished resources."

Partial indemnity, satisfactory to the claimants, for a class of the cases, was accorded at the close of 1827, and within two months of Mr. Wheaton's arrival. In January, 1829, the Minister of Justice, M. de Stemann, was united with Count Schimmelmann, to discuss with the American Plenipotentiary the means of an amicable adjustment of all the matters in controversy. This measure had been preceded by a declaration of the king's desire "to use every means to reduce the losses to which some American citizens had been subjected, by neglecting, without an intention on their part, those forms which would have served to protect their navigation and their strictly neutral transactions," and by putting Mr. Wheaton in possession of the register of sentences, with the grounds on which they were supported by the competent tribunals, from the year 1807 to 1812.

The appointment of the Danish Plenipotentiaries was made on the eve of the termination of the administration of President Adams; but, fortunately for the country, President Jackson, who was inaugurated in the following March, " did not," to use the language of an experienced senator, in reference to this transaction, "change the negotiator-did not substitute a raw for an experienced minister."1

Mr. Wheaton was met, as Mr. Erving had been at the out

1 Benton's Thirty Years in the Senate, vol. i. p. 603.

set, with the pretension, that the final decrees of the highest tribunal could not be reëxamined, and that it would be a reflection on their character to suppose that they were not in conformity with the law of nations. It was no difficult task to show, that though the decrees were conclusive in rem, as regards the title of the property and as respects the subjects of Denmark, they could not be deemed so as between nations; but that, on the contrary, the right of a foreign government to demand redress against an illegal capture only arose after the failure to obtain justice, in the ordinary course, from the

courts.1

The alleged grounds, on which the American vessels had been condemned, were, principally: 1. For having simulated papers; 2. For having French consular certificates, which the Danish government had been informed by that of France could only have been issued to vessels going direct to that country; and, 3. For being found under English convoy.

1. So far as respects simulated papers, it was a question of fact in each individual case, and involved no discussion of principles.

2. On the second point, besides the answer that a French consular certificate was a document not known to the law of nations, and which American vessels, certainly so far as regards Denmark, were not required to have, it was satisfactorily proved that the instructions to the French consuls to confine them exclusively to vessels going directly to France, was not received in America till after the date of the sailing of the vessels in question.

3. The sailing under English convoy presented a subject of consideration not so readily to be disposed of. And Mr. Wheaton, in giving, in the appropriate place in this work, the substance of the argument, by which he succeeded in accomplishing the object of his instructions, does not affirm as a prin

1 Part IV., ch. 2, § 16, p. 460.

ciple, but presents as a proposition to be discussed, the liability to capture of neutral vessels sailing under enemy's convoy. He had, indeed, himself, as counsel in the Supreme Court of the United States, contended, in 1821, as appeared in his Reports, that sailing under enemy's convoy was cause for the condemnation both of vessel and cargo; and he had, then, referred to the correspondence with the Danish government by Mr. Erving, who, he said, admits the extreme difficulty of upholding the contrary doctrine, and only seeks to escape from it by contending that the rule could not be extended to vessels forced into convoy, or accidentally involved in the enemy's fleet. "And this," he adds, "may be readily admitted, without at all weakening the general rule." 1

It was denied by the Danes, that our claims came within the exceptional cases. On the contrary, they contended that "the convoy was a matter of preconcert; that the American vessels being employed to procure naval stores from Russia, for the use of England, they first submitted to an examination before they were received under convoy, declined to submit to search by the other belligerent, and were defended by the convoy if of superior force, or endeavored to escape during the contest. If worsted, they still claimed their neutrality."

The naked question, of the effect of sailing under enemy's convoy, has never been passed on in the United States' Courts, except so far as it may be supposed to be involved in the decisions respecting the liability to capture of neutral property; on board of an armed vessel of the enemy, as to which, as we have seen, there were conflicting decisions in the British and American Admiralty Courts. But, it is proper to notice, that in his dissenting opinion, in the case of The Nereide, Judge Story lays down in strong language the liability to capture of all vessels under enemy's convoy, and supports himself by a decision of the Lords of Appeal in England; while in the case

1 Wheat. Rep. vol. vi. p. 34. The Aimable Isabella.

of The Atalanta, in which the previous decision, allowing neutral goods to be shipped on board of an armed vessel of the enemy, is affirmed, Judge Johnson distinguishes between such a case and that of sailing under enemy's convoy.

The settlement of the claims, by a gross sum to be distributed by the American government itself, precluded any further investigation of the facts by of the facts by a tribunal, whose authority was recognized by both parties; but it is understood that those convoy cases, which were admitted by the American Commissioners, were proved to have fallen within the exceptional classes, as stated by Mr. Erving, and that their being under British protection was the result of superior force. While the success of Mr. Wheaton, unaided by any hostile menaces, is enhanced by the doubt which attached to a portion of the reclamations, the general result affords the highest proof of the zeal and ability with which his functions were discharged. Indeed, it is only due to the truth of history to record, that without a minister, holding towards the king and the members of the Danish government the relations which Mr. Wheaton maintained, there would never have been an opportunity for those free discussions, to which, and not to any formal conferences, the fortunate termination of the business is to be ascribed. Such is the testimony borne by the agent, who represented the principal claimants, and on that account visited Copenhagen. Count Schimmelmann repeatedly told him, that he considered that "the American government had paid them quite a compliment, in sending them such a representative as Mr. Wheaton." And of the position which he occupied there, as well as of the friendly form which the negotiations assumed, no better proof can be given than is furnished by the following note, taken from among those from the Danish Minister of Foreign Affairs, which their daily intercourse induced : "Je suis désolé, Monsieur, que votre indisposition me prive aujourd'hui de l'avantage de vous voir; ce n'étoit pas des communications officielles que j'étois chargé de vous faire, mais je

g