336
THE GREEN BAG
President of the French republic, Louis Napoleon, be chosen as arbiter, and this was acceded to by Portugal. Our minister at Paris and the Portuguese minister at the same place submitted to the minister of foreign affairs twenty-one documents em bracing the correspondence, and November 30, 1852, a little over thirty-eight years after the destruction of the brig, the arbiter rendered an award. The award recited that the Americans fired on the British boats without any at tempt having been made to repel force with force by the boat's crew; that the Americans did not ask protection until blood had been shed; that the Portuguese governor had repeatedly intervened with the English to obtain a cessation of hostilities; that the weakness of the garrison and the decay of the guns made armed intervention impossi ble; that Captain Reid did not apply for protection in the beginning or until he had recourse to arms to repel an unjust ag gression of which he claimed to be the object, and thus released the neutral sovereign from the obligation of protection other than by pacific intervention. The award proceeded to declare that the claim of the United States against Portugal had no foundation. Much misunderstanding arose from too literal a translation of this award in which the word " pretendait," as applied in the award to Captain Reid, was treated as the equivalent to the English word, "pre tended," instead of, as would have been more just, the word "claimed." The matter was taken up in the Senate in 1852, and the papers were called for. Secretary Marcy and Secretary Everrett de clared the award binding and final, but Mr. Reid for the claimants protested that the matter was submitted to arbitration without the knowledge or consent of the claimants, and that their rights against their own gov ernment should not be prejudiced by the award. A memorial was accordingly sub mitted to Congress in 1854, and a favorable report was made by Mr. Slidell from the
committee on foreign relations on the ground that the claim against Portugal was just, that Mr. Webster refused to forward to the arbiter an argument by the agent of the claimants on a ruling that it was not allowed by the treaty; that the United States minister at Paris was not consulted or heard in the matter; that an indemnity would stimulate citizens to emulate the conduct of Captain Reid; that if the United States would compensate injuries done to its citi zens in violation of neutral rights, other countries would more earnestly maintain the inviolability of their territory. Like report was made in the Lower House. A measure granting compensation was offered. In the debate leading men took part. Messrs. Slidell, Clayton, Seward, and Bay ard supported the claim. Messrs. Toombs, Chase, and Clay opposed. It was lost al most two to one. The matter was recon sidered, however, and a bill offered limiting the recovery to such amount as might be allowed by the Secretary of State, not ex ceeding $131,600, was substituted. This was finally carried by twenty-two to seven teen. Eminent lawyers like Bayard, Ben jamin, Cass, Douglas, and Seward voting with the majority, and equally eminent lawyers like Chase, Clay, Fessenden, and Sumner, voting with the minority. The matter was ultimately referred to the Court of Claims, where Charles O'Conor led for the claimants and Montgomery Blair for the government. The majority of the court sustained the claim in 1856, and established the damages at $70,739, but on rehearing one justice changed his opinion and thus the court rejected the claim. The grounds of the rejection were that the question of who began the conflict and whether its commencement was justifiable lay in doubt; that if the privateer had come to the posses sion of Portugal she would have been bound to restore her, but as she was de stroyed she could not be restored; that the Portuguese governor had no force by which he could prevent her destruction; that the
