existence of war between the two Republics, and especially and emphatically asserted that there had been none on the part of France. They insisted throughout that whatever "misunderstanding" had existed had not amounted to war. So that it is left to American statesmen to evolve this far-fetched idea of a war on the part of France as an argument by which to avoid responsibility to their fellow-citizens for claims for these losses which our Government had used in the settlement of its own liabilities for failure to keep and observe its treaty obligations.

In his report to the House, of February 21, 1835, Mr. Edward Everett referred to this subject as follows:

"In the progress of the negotiation, it was maintained on the part of France, in the strongest terms, that war did not exist. Witness the following passage from the dispatch of the French envoys of 11th August, 1800: 'In the first place, they will insist upon the principle already laid down in their former note, viz, that the treaties which united France and the United States are not broken; that even war could not have broken them; but that the state of misunderstanding which has existed for some time between France and the United States, by the act of some agents, rather than by the will of the respective Governments, has not been a state of war, at least on the side of France.' The misunderstanding was terminated, not by a treaty of peace, but by a convention for terminating certain differences. (Report 445, 2d Sept., 25 Cong., p. 121.)"

Again he says:

"It was the opinion of one of the ablest jurists and best patriots which the country ever produced (Chief Justice Marshall) that these claims are just. 'If,' said he, 'the envoys [of which he was one] renounced them, or did not by an article in the treaty, save them, the United States would thereby become liable for them to her

citizens.' (Mr. Everett's statement, Rep. No. 445, Ħ. of R., 2d sess., 25th Cong., p.

128.)"

And again he says:

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From the beginning to the end of the negotiations France admitted the general justice of the claims and professed her readiness to make indemnity to our citizens. "This the American Government declined to accept, because the French coupled with it the demand for the restoration of the treaties, thinking it hard, in the language of our envoys, to indemnify for violating engagements unless they can thereby be restored to the benefit of them. (Mr. Everett's statement, Rep. No. 445, H. of R., 2d sess., 25th Cong., p. 128.)"

We submit that this disposes of the entire groundwork of Mr. Dix's argument. This is further shown by the fact that condemnations were not made on the ground that there was war, but on the ground of alleged violation of neutrality and alleged failure to comply with the treaty. Mr. Russell, of Massachusetts, so ably presented this that we quote from his speech as follows (p. 8052, Record, 1st sess. 50th Cong.):

"Under the act of 1885, looking to the final settlement of these claims, our State Department sent to France and to the French West Indies for copies of the original papers made in these condemnations of our vessels.

'I have before me copies of the papers, in the original French, of two of these condemnations. Here we have first the American schooner Peggy, taken as a prize by the French privateers Le Patroite and Les Trois Amis, and carried into the French port of Guadaloupe, and here are the grounds of her condemnation made by the prize

court.

"The House will notice that this was in 1800.

Spoliation had been going on for seven years, and if there had been war existing the French officers would surely have known it, but there is no allusion whatever in these papers to a condition of war existing between the French Government and the Government of the United States.

"The condemnation could have been made on the ground of war, if any war existed, and the American vessel would have been a good prize for her French captors; but, instead of putting it upon that ground, they simply make the evasive and far-fetched declaration that the sealed letter which this vessel bore was not signed by the proper naval officers, and also that the captain, who acknowledged that he was originally a subject of Great Britain, but who had been naturalized for more than twenty years, did not happen to have his naturalization certificate about him.

"The condemnation sets forth that she had not the crew-list required according to regulation established by the French Government as necessary for American ships and also that there was not sufficient evidence on board that the cargo actually belonged to the men who had shipped it from Norfolk, Va., which was a clumsy attempt to establish a violation of neutrality."

What has been above presented shows conclusively that, in the opinion of the Supreme Court of the United States, there was in law no general war; that, in view of the subject, as expressed by both Governments, there was in fact no such war; and

there seems to be scarcely room left for any argument that these claims are in any sense 66 war claims."

The real character of the claims has already been described in quotations made in a previous part of this report. They are for wanton captures by French privateers of the vessels and cargoes of our citizens in flagrant violation of treaty stipulations and of the rules of international law, because of which our Government asserted, and France during the negotiations admitted, her liability to make compensation as herein before appears.

Mr. Jefferson, by his circular letter, and President Washington, in his message, gave assurance to our citizens that they would be compensated for these losses as valid claims against France.

THE FAILURE OF THE UNITED STATES TO KEEP HER TREATY OBLIGATIONS.

But France was not without her grievances against our Government. As we have before shown, the United States had agreed to guaranty to France her West India possessions and to grant her exclusive port privileges. Both of these covenants were broken-the one as to port privileges deliberately by the Jay treaty of 1794 with England, and this was obviously done because it was deemed more profitable to break it than to keep it. Evidently the advantages of commercial intercourse with England in our then condition were considered as outweighing such demand as France might have because of failure to keep that treaty agreement.

For these breaches France claimed indemnity as a nation against the United States as a nation. Did not the United States admit that liability by surrendering them? Your committee so consider.

BOTH NATIONS AGREED.

It thus appears that the two nations were not in dispute over the real situation. (1) The United States asserted and France admitted the liability of the latter to our citizens for these spoliations.

(2) France asserted, and the United States, as your committee consider, acquiesced in the position that they were liable to France for these infractions of these treaties.

THE TREATY OF 1800.

This was the situation which led to the treaty of 1800. That treaty was negotiated in large part with a view to the settlement of these respective claims. The effort has been made to show that this was a treaty of peace, but as there was no war, it is difficult to comprehend how it could be a treaty of peace. Since there was no war, it could be nothing else than what both parties claimed it to be an adjustment of the grievances above alluded to, the existence of which were admitted by both parties.

HOW THESE GRIEVANCES WERE SETTLED.

In the light of the multitude of reports made to the Senate and House in which the methods by which these respective claims were adjusted and finally settled have been most ably and exhaustively presented, it seems useless to do more here than to state the fact that the acknowledged claim of France as a nation against the United States as a nation was paid by the latter with the acknowledged claims of her citizens against France.

Thus private property was taken for a public use, and thus these claimants have an unanswerable demand against the United States, which payment has never been made. (Articles of Amendments to Constitution of the United States.)

So far, therefore, as these are claims made by the representatives of parties who suffered actual loss, it seems to your committee that the duty of the United States to pay them is beyond reasonable dispute; some of these have been reported to Congress by the Court of Claims and are now pending for final action.

UNDERWRITERS AND INSURANCE COMPANIES.

The court has also reported claims in favor of underwriters and insurance companies, and since it has been argued that these are less meritorious, they will now be separately considered.

Underwriting.-At that period much of the insuring was done by underwriters and not by insurance companies. The method was briefly this: A broker would write a policy, in which a named vessel was to be insured for a specific sum at a named

rate and for a named voyage. Underneath this individuals would write their names, opposite which the portion of the sum insured taken by each would be subscribed; each underwriter received his proportionate share of the premium paid and each paid the amount he subscribed in case of loss; and all the rights of the insured were transferred in fact, or by operation of law, to these underwriters, whenever a loss was paid. (Hall & Long R. R. Co., 13 Wallace, 367; Gracie v. New York Insurance Company, 8 Johnson, 245; The Potomac, 105 U. S., 634; Randall v. Cochran, 1 Vesey, 98.)

It is at least difficult, if not impossible, to find any reason why, if the owner who lost his uninsured ship can be compensated for that loss, his neighbor who guaranteed against loss and paid the loss is not also entitled to such compensation.

The doctrine of subrogation that places the party who paid in the place of him to whom the payment was made is too familiar and too obviously founded on natural justice to demand argument in its support.

But the right to be thus substituted is a contract right. In consideration of the insurance the insured agrees that the insurer shall have the premium paid and the right to any hope of recovery in case of loss.

This hope of recovery-spes recuperandi-is a property right, no matter what form it may take, whether it may be what may be felt of the vessel or any right of reclamation. It is a property right which, by contract, belongs to the insurer.

In the language of Lord Cockburn:

"Whatever rights accrue to the owner * * * pass to the underwriter the moment he satisfies the policy."

This doctrine is supported by numerous authorities of the highest character. (North of England Ins. Co. v. Armstrong, L. R., 5 Q. B., and cases supra.)

Every underwriter, therefore, who paid a loss acquired this property right the instant the loss was paid, and from that moment he had a valid claim against France, precisely such a claim a property right-as the owner of the vessel would have had if he had lost his vessel without insurance. All of these claims-these property rights of the underwriters were given up to France in consideration of the extinguishment of the claim of France against the United States, and thus the United States used this individual property for a public purpose; and therefore the rights of these underwriters are in no way different from the rights of the uninsured owners the one is no less an obligation binding on the United States than the other. In both cases the United States took property that belonged to the citizens and used it to pay their own indebtedness.

Insurance companies.-The case is not different but is precisely the same, where the insuring or underwriting was done by insurance companies. Whenever a loss was paid by an insurance company the property right above mentioned vested in that company, and these property rights were likewise used along with the others above mentioned for the same purpose, viz, the extinguishment of a national obligation. We conclude this branch of the subject by calling attention to the summary of authorities found in Holbroak v. United States, 21 Court of Claims Reports, pages

438-441:

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*

*

"In capture and condemnation there can be no spes recuperandi, for the vessel, so far as the owners are concerned, has disappeared, and there exists no reasonable prospect that anything will at any time be recovered. 'There is no existing hope,' to use Chancellor Kent's language, 'of recovery in this case (of capture), and an abandonment * * * would have been as idle as if the property had perished at sea' (Gracie v. The N. Y. Ins. Co., 8 Johnson, 245); and since the time of Lord Mansfield the capture of a neutral merchantman upon the high seas, especially when followed by confiscation, amounts to total loss and abandonment. (Goss v. Withers, 2 Burr., 683; 4 Cranch, 29; 4 Dallas, 421; 3 Wheat., 183; 1 Wash. C. C., 145; 3 Mass., 238.)

"In the case of the Vermont, in which the opinion already cited was delivered by Chancellor Kent, the vessel had been captured, the capture declared illegal by the French tribunal; pending an appeal by the captors, the cargo was delivered to the consignees upon bond given by them larger in amount than the insurance. The appeal was heard and the vessel with her cargo condemned, whereupon insured sued upon the policy after expressly refusing to abandon. The court, holding abandonment to be unnecessary, shows that any claim against the captors could only be prosecuted by the National Government, which, if compensation were obtained, would become trustee for the party having the equitable title to the reimbursement, and that this party is the insurance company, if they should pay the amount of the bond;' that is, the insurer would be entitled to what he paid. This is in accordance with the general doctrine of insurance law laid down by Lord Cockburn in the following language:

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"I take it to be clearly established in the case of a total loss that whatever remains of the vessel in the shape of salvage, or whatever rights accrue to the owner of the thing insured and lost, they pass to the underwriter the moment he is called upon to satisfy the exigency of the policy and he does satisfy it.' (North of England Í. S. Ins. Co. v. Armstrong L. R., 5 Q. B., 244; see also Propeller Monticello v. Mollison, 17 How., 152; Mercantile Marine Ins. Co. v. Clark et al., 118 Mass., 288; Shaw v. United States, 8 C. Cls. R., 488; Dozier v. United States, 9 id., 342.)

"As long ago as 1 Vesey, sr., Lord Hardwicke, in case of an illegal seizure, held that the person originally sustaining the loss was the owner, but, after satisfaction made to him, the insurer, so that if compensation be made for the seizure the assured stands as trustee for the insurer in proportion to what he has paid. (Randal v. Cochran, 1 Ves., sen., 97.)

"In one New York case (United Ins. Co. v. Scott, 1 Johns., 106) the court held that right of ownership in a captured vessel passed to the underwriters upon abandonment and payment of total loss; in another similar case (Robinson v. United Ins. Co., 1 Johns., 592) the insurers were sustained in their endeavor to bring trover against the owners for a cargo captured, abandoned, and paid for, while the case of Gracie held abandonment useless; and in the Chinese indemnity claims this court ruled (Hubbell v. United States, 15 C. Cls. R., 546) that underwriters who had paid losses sustained by reason of the capture and plunder of a vessel and cargo by Chinese pirates could participate in an indemnity fund paid therefor.

"In some cases, after payment of the insurance, the assured executed an instrument called a cession, in the nature of an assignment, by which they transferred to the insurer all rights to the property and to any recovery on account of it; but the insurer's right is not based upon that instrument, as the Supreme Court held in Comegys v. Vasse (1 Peters, 193), where the absence of an assignment was set up against the underwriter. The court said that

"The law gives to the act of abandonment, when accepted, all the effects which the most accurately-drawn assignment would accomplish.'

"So Justice Washington held in Hurtin v. The Phoenix Insurance Co. (1 Wash. C. C., 400):

"If a cession, as it is called, had been necessary to make the abandonment complete there might be something in the argument; but this is not the case. The abandonment amounts to a legal transfer of the rights of the insured, so as to enable the underwriters to pursue, to manage, and to recover the property as effectually as if a regular deed had been made to them. When it comes to be made a question whether the abandonment is invalid, if the cession is refused, we must say it is not; because such an instrument is not necessary to pass the right of the insured to the underwriters.'

*

* *

"The authorities are entirely united on this point, and there can be no doubt of the validity of claims made by insurers who have paid loss by illegal capture, condemnation, and confiscation of vessels included in the description of the act of January 20, 1885."

PRECEDENTS FOR SUCH PAYMENTS.

We are not without precedents in this respect. By the treaty of 1819, with Spain, provision was made for the payment by Spain of spoliations by France during the same period (1793-1800) on our commerce. Spain was held to be liable, because France used her ports in connection with these captures. The captures were made by France during the same period, and under the same treaty stipulations, and under precisely the same circumstances.

In the settlement of these claims nineteen insurance companies were paid by the United States from the millions of money kept back by it from Spain on the Florida purchase for losses paid on account of the respective vessels insured by them, respectively, and upon the ground above stated, to wit, that, having paid the loss, the company acquired a property right which had been used for its own purposes by this Government. (Senate Ex. Doc. 74, 49th Cong., 1st sess., pp. 25, 26, 27, 28, 29, and 30.)

Attention is again specially called to the fact that these depredations were committed by France during the same period and under the same circumstances. These are excluded by the act of Congress of January 20, 1885, from the jurisdiction of the Court of Claims, for the reason that they were paid under this treaty with Spain.

As above stated, the losses of insurance companies were paid under that treaty, so far as the property was carried into Spanish ports; not paid on any basis of profit or loss, but each loss was compensated for.

It would be indefensible inconsistency to say that one company might be paid its losses for French spoliation when the property was carried into the ports of Spain,

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and another company could not be paid for a precisely similar loss, because the property was carried into the ports of France; that the companies should be paid under the one treaty and not under the other, the losses being exactly similar.

Another precedent is found in the treaty with France of 1831. By that treaty, provision was made for the payment of claims that occurred after the treaty of 1800. In this instance fifty-two insurance companies were paid (Sen. Doc. 74, 49th Cong., 1st sess., pp. 41 to 92, inclusive) for property lost, on account of which they paid the insurance, and this was done because the United States used the property right held by the companies for public purposes.

It is therefore confidently submitted that the right of underwriters and insurance companies to be paid is, as a matter of law, irresistible, and by the precedents above mentioned it is impossible for the United States to refuse payment without inconsistency bordering on dishonor.

CONCLUSION ON THIS BRANCH OF THE SUBJECT.

These claims, although old, are not stale. They are old, because the United States has neglected to do by its citizens what they had a right to expect. They are not stale, because the claimants, generation after generation, and continuously in almost every Congress since they arose, have been pressing them for payment. Their justice has been recognized, as above shown, many times by reports made by committees composed of men of most conspicuous ability; but their justice was never more forcibly recognized than by Congress in the enactment of the law of January 20, 1885, which gave to the Court of Claims jurisdiction to consider them.

By that act the claimants were invited to submit their claims to that court. But while Congress referred to the court the question whether France was liable primarily as the spoliator, and, secondarily, whether the United States had become liable in the stead of France, this was not merely a reference of abstract questions; it was a reference of cases upon which severally, year by year, the court was to report to Congress, as these cases were tried, thus making manifest the intention to recognize them as valid if the court should so decide. This is made still more apparent when it is considered that the act further provided for the sending abroad of a commissioner to procure evidence to be used alike by the claimants and by the Government, which further indicates that it was not a decision alone of an abstract question, but the trial of cases, which was contemplated in the reference. In pursuance of this provision of the jurisdictional act Congress has made large appropriations for the purpose of getting evidence from abroad, and sent Hon. James O. Brodhead, of Missouri, as a commissioner to Paris for this purpose (see 2 Wharton's Digest of International Law, 715); and subsequently sent Mr. Somerville P. Tuck as a commissioner to the various ports of France into which the vessels had been carried for the purpose of procuring evidence; and afterwards sent Mr. Tuck to the West India Islands for the purpose of searching for proofs, all which proofs have been used alike for the benefit of the claimants and the Government.

While the act does not say so in terms, but reserves to Congress the right finally to act in the premises, yet there is in this act a clear implication of the intention of Congress to pay them; and on the faith of this the claimants have proceeded in that court.

The questions involved have been elaborately discussed in that court; every conceivable argument against the liability of France and against the liability of the United States has been advanced and urged by the counsel for the Government.

The court, chosen by Congress as the tribunal to which to submit these questions, has decided against the contention of the Government. These opinions rendered are conspicuous for their ability and research, and they are in harmony, as we have seen, with the views of our most eminent statesmen, jurists, and diplomats, who have been required, in the discharge of public duties, to consider them. There have been five opinions delivered on the subject of French spoliations by the Court of Claims. They are Gray v. United States, 21 C. of Cls. R., 340; Holbrook v. United States, 21 C. Cls. R., 435; Thomas Cushing v. United States, 22 C. of Cls. R., 2; Hooper v. United States, 22 C. of Cls. R., 408.

The jurisdictional act of January 20, 1885, in which these claims are referred to the Court of Claims, excludes three important classes of claims:

(1) All "such claims as were embraced in the convention between the United States and the French Republic, concluded on the 30th day of April, 1803."

(2) All "such claims growing out of the acts of France as were allowed and paid in whole or in part under the provisions of the treaty between the United States and Spain, concluded on the 22d day of February, 1819."