May 4 last Mr. Dodge stated in reply that 2,039 cases, claiming $15,283,267, had been tried, and the sum of $2,239,313 found due thereon; and that there remained 7,106 more to be tried, claiming $22,420,805. The following is the reply in full, and we deem it proper to ask the special attention of the House to the information which it furnishes:

DEPARTMENT OF JUSTICE,

Washington, D. C., May 4, 1894.

SIR: Replying to your communication of March 24, 1894, requesting information as to the number and aggregate of claims known as war claims referred to the Court of Claims under what is known as the Bowman Act, approved March 3, 1883, also the number and amount of such claims decided by the court, and the number and amount of those still pending, and construing the expression "war claims" in accordance with resolution adopted by the Fifty-second Congress as meaning claims growing directly or indirectly out of the late war for the suppression of the rebellion, permit me to say that 9,150 claims of this description have been referred by Congress to the Court of Claims under said act, the aggregate whereof is about $35,000,000.

Of these, about 2,039 claims have been disposed of, aggregating as face of claims the sum of $15,283,267, the amounts found due by the court thereon aggregating $2,239,313.

There remain pending in court 7,106 claims of this character, which aggregate upon their face the sum of $22,420,805.

In addition to the foregoing, suits are pending within either the general jurisdiction or jurisdiction conferred by special acts of Congress, based upon claims either directly or indirectly growing out of said war, the aggregate whereof, as stated by the petitions, is the sum of $2,762,650, thus making the total amount of war claims pending in both jurisdictions $25,183,455.

This computation of the number and amount of claims disposed of is based upon the previous annual reports of Attorneys-General, and some slight measure of duplication or inaccuracy may exist therein. The statement of the number and amount of claims pending is given as the result of actual examination of those claims.

Very respectfully,

Hon. B. H. BUNN,

J. E. DODGE, Assistant Attorney-General.

Chairman Committee on Claims,

House of Representatives.

In this connection the following letter of the clerk of the Court of Claims contains important information:

COURT OF CLAIMS, CLERK'S OFFICE,
Washington, April, 1890.

MY DEAR SIR: Replying to your letter of inquiry of date April 22, 1890, I have the honor to state that the first finding under the Bowman Act was made April 28, 1884. Up to this time there have been tried by the court, of these cases referred under the Bowman Act, 1,020 cases. The amount passed upon by the court is upward of $7,000,000. This amount includes not only the Bowman Act cases when the question of loyalty is precedent to give jurisdiction, but all other cases referred by War Claims Committee and other committees of Congress under that act wherein loyalty was not a subject of inquiry.

Of this number of cases tried, 358 have been decided in favor of claimants, which embrace the classes above referred to.

I respectfully invite your attention to the accompanying extract from the report of the Attorney-General, commencing in 1886 and ending in 1889. It will be seen upon reference to this last report that the percentage of allowances in proportion to the amount claimed is about 7 per cent.

It is suggested that if the findings, in cases that form a part of this aggregate, in which loyalty was not a jurisdictional question, be eliminated, that the amount allowed for cases for stores and supplies will scarcely reach 6 per cent.

This, it is respectfully suggested, is a fair basis for the percentage of allowances throughout the time covering the trial of Bowman Act cases in the Court of Claims. Yours, respectfully, ARCHIBALD HOPKINS, Chief Clerk.

Hon. W. E. SIMONDS,

House of Representatives.

FRENCH SPOLIATIONS AND THE AMOUNT OF THEM.

The French spoliation claims are the price paid to France for her aid to us in achieving our independence. On February 6, 1778, the American colonies, through Dr. Benjamin Franklin, made a treaty with France whereby they agreed to protect France in her West Indies possessions and accord to her certain port privileges exclusively; and, in consideration thereof, France guaranteed to us our political and commercial independence. That France kept her guarantee is sufficiently proved by the historical event of Yorktown. Whether we kept ours or not, France committed these spoliations on the commerce of our citizens for alleged violations of neutrality in her war with Great Britain; and thereafter, in the negotiations for a new treaty, France claimed damages against the United States for its failure to keep the obligations of Franklin's treaty, and it was agreed under the second article of the new treaty of September 30, 1800, by both parties, "to negotiate further" "upon the indemnities mutually due or claimed." The Senate of the United States rejected the second article, and Napoleon, on July 31, 1801, agreed to its rescission on the condition that the two classes of claims should be mutually set off against each other, and on December 9, 1801, the Senate of the United States declared the treaty ratified, with the rescission of the second article by Napoleon. Such is the judgment of the Court of Claims after the fullest argument and reargument, the questions having been referred to it by an act of Congress passed January 20, 1885 (see the case of Gray v. United States, 23 Ct. Cls., 277). The Court of Claims finds as a conclusion of law:

"The court decides as conclusions of law that said seizure and condemnation were illegal, and the owners and insurers had valid claims of indemnity therefor upon the French Government prior the the ratification of the convention between the United States and the French Republic concluded September 30, 1800; that said claim was relinquished to France by the Government of the United States by said treaty in part consideration of the relinquishment of certain national claims of France against the United States; and that the claimant is entitled to the following sum from the United States."

It is true that the act of Congress does not empower the court to give judgment in these cases, and it has not done so. But it has tried the cases fully, the United States being represented by the Solicitor-General and the assistant attorneys, and the court has set forth its findings as to the liability of the Government upon certain of the cases and its grounds for rejecting a great many more in elaborate and well-considered opinions. It would not seem profitable to go back of these to inquire into the merits of these claims on the legal questions involved, though it does appear from many reports of this committee, including that to the last Congress, that immediately after the ratification of the treaty (viz, in 1802) Mr. Giles, of Virginia, made a report that by the treaty of September 30, 1800, the United States had assumed liability for these claims, and Mr. Marion, of South Carolina, made a similar report in 1807, wherein he said:

"From a mature consideration of the subject, and from the best judgment your committee have been able to form on the case, they are of the opinion that this Government, by expunging the second article of our convention with France of the 30th September, 1800, became bound to indemnify the memorialists for their just claims, which they otherwise would rightfully have had on the Government of France for the spoliations committed on their commerce."

Such was the judgment of two committees of this House contemporaneously with the transactions, whereof they had personal knowledge; and in the then weak and impoverished condition of the country no inference prejudicial to the merits of the claims can be drawn from the failure of Congress to pay them. It simply took no action.

It appears also that after Mr. Clay, as Secretary of State, in 1827, transmitted all of the correspondence and negotiations which led up to the treaty of 1800 to the Senate, there has never been an adverse report, except one made by the Committee on Appropriations of the Fiftieth Congress, to which the matter was never referred except under an order of the House to place the claims on the general deficiency bill.

Having referred these claimants by an express act of Congress more than nine years ago to the Court of Claims for an investigation of the legal validity of their demands, and having sent the claimants for stores and supplies to the same court to establish their loyalty and the value of their property used by the army, the only question which would now seem to be open is whether Congress will pay these adjudicated obligations or repudiate them.

There has been a great deal of statement based upon speculation as to the probable amount of the liability of the United States on account of these French spoliation claims, and, with the view of obtaining correct information for the House on this point,

your committee addressed a communication to the Court of Claims, requesting full and specific information from its official records in relation thereto.

The reply of the court shows that claims for $23,992,820.92 (which is more than half of the highest estimate placed by anyone on the amount claimed) have been finally disposed of, and awards made thereon for $3,382,291.96, whereof the sum of $1,304,095.37 has been paid, leaving a balance of $2,078,196.59. This reply of the Court of Claims is very important and is made an appendix hereto, and further reference will hereinafter be made to it.

TREATIES INVOLVED IN THE REFERENCE OF FRENCH SPOLIATIONS TO THE COURT OF CLAIMS.

The act of Congress of January 20, 1885, referring these claims to the Court of Claims, provided that

"The provisions of this act shall not extend to such claims as were embraced in the convention between the United States and the French Republic concluded on the 30th day of April, 1803; nor to such claims growing out of the acts of France as were allowed and paid in whole or in part under the treaty between the United States and Spain concluded on the 22d of February, 1819; nor to such claims as were allowed and paid in whole or in part under the provisions of the treaty between the United States and France concluded on the 4th day of July, 1831."

Of course, claims coming under the two treaties of 1819 with Spain and of 1831 with France were properly excluded from consideration in connection with the present claims, for in them the Government of the United States, it its capacity of a sovereign nation, presented diplomatically the claims of its citizens against a foreign government, and agreed to accept a specific sum as indemnity therefor; and, having recovered the amount, Congress enacted a law providing for the distribution of the indemnity among those who held claims against it. A list of the awards of each of these commissions is to be found in Senate Ex. Doc. No. 74, Forty-ninth Congress, first session. We need not further consider either of these treaties.

Some confusion, however, seems to have arisen in relation to the treaty of April 30, 1803, which is sometimes designated as the Louisiana treaty, it being the one under which we acquired ownership by purchase of the Louisiana territory. This treaty was made subsequently to the one under which the claims we are now considering were released to France, and it arose in this wise:

In the early days of the French revolution, and after twenty-three treaties had been made between the governments of Europe binding themselves to punish France for having beheaded her king and setting up a representative form of government, Mr. Genet, the French minister, called upon our Government to carry out its obligations made by Dr. Franklin in 1778 to protect France in the possession of her West India islands, and our Government declined to do so, electing to take the position of neutrality, upon which question the American people became so divided that President Washington said there was "an English party and a French party, but no American party in America." Under these circumstances large quantities of war material and military supplies were sold to the French Government by American citizens, for which no compensation had been made, and in this treaty under which we acquired Louisiana for $20,000,000 it was provided that $5,000,000 thereof should be paid by the United States to American citizens on account of debts due to them by the French Government. It in terms distinguishes between these debts growing out of purchases of supplies and the class of claims for spoliations which were released to France under the treaty of September 30, 1800, and in article 4 uses the following language, to wit: "It is expressly agreed that the preceding articles shall comprehend no debts but such as are due to citizens of the United States who have been and are yet creditors of France."

The claims which we are now considering, which have been so often discussed in this House and which come within the terms of the act of January 20, 1885, arose from spoliations committed by France under the following circumstances:

On February 6, 1778, in the darkest hour of our revolutionary struggle, Dr. Franklin made a treaty with France whereby the latter guaranteed to us our political and commercial independence, which guaranty was kept by France regardless of the price in blood and treasure. In return, under the provisions of the treaty, we guaranteed to France the perpetual possession of her West India islands and certain exclusive port privileges. When, by the express terms of twenty-three treaties despotic Europe had confederated against France, she called loudly and piteously upon us to keep our contract. The nature of the response which we made is shown by the letter of Mr. Genet, the French minister, to Mr. Jefferson, Secretary of State, dated September 18, 1793, as follows, to wit:

"That the Secretary of War, to whom I communicated the wish of our Government of the Windward Islands to receive promptly some firearms and some cannon, which might be put into a state of defense, possessions guaranteed by the United States, had the front to answer me, with an ironical carelessness, that the principles established by the President (in his proclamation of neutrality) did not permit him to lend us so much as a pistol.' (Doc. 102, p. 219.)

Thereafter the then French Government of the Directory issued numerous decrees directed against American commerce, and revived many obsolete French naval reglements requiring many things to be done and observed by neutrals, and upon the seizure of American vessels they were promptly condemned for some violation or pretended violation of some of these reglements technically construed, e. g., the failure to carry a rôle d'equipage, or for a passport or a manifest being technically defective in some local French requirement. All of these condemnations were made in disregard of the treaty of amity and alliance and the law of nations, and on some pretext of violation of neutrality; but there was no pretence of condemnation on the ground of enemy's property. Some decrees of condemnation made as late as September, 1800, are based on alleged violation of American neutrality. This fact of itself absolutely refutes the proposition maintained at one time by some of the opponents of these claims that they are invalid as being war claims. Your committee, however, regards this contention as being so entirely overthrown that it is deemed wholly unnecessary to go into the argument. Mr. Mansur, who, as a member of this committee, made several able and learned reports on these claims, has collated many expressions of contemporaneous jurists and statesmen of both nations, showing a consensus of opinion that there was never any general war between the United States and France, or any affecting their mutual liberties; and this collation is so replete with interesting and valuable information that your committee makes it an appendix to this report.

THE INSURANCE CLAIMS.

It has been settled by the courts of last resort in England and this country that the insurer is subrogated to the rights of the owner to the extent that he pays the loss. (Comegys v. Vasse, 1 Pet., 193; Monticello v. Millison, 17 How., 152; The Potomac 105 U. S., 635; Merchants' C. P. & S. Co. v. Insurance Co., 151 U. S., 368.) If the owner has been paid To the extent that the insurer has paid he is owner. by the insurer he can not recover, even if the insurer does not file a claim; and, as the So the Government payment by the insurer is settlement, the owner ceases to have a claim, and by subrogation the insurer becomes owner instead of the original one. pays but once.

All of this has been decided by the Court of Claims, and its decisions upon this subject are entirely in accord with the decisions of the High Court of Chancery of England and the Supreme Court of the United States.

Then, where the insurer has paid, whether underwriter or a company, it is his or its claim that was released to France, and it stands upon he same legal and equitable ground as the claim of the owner.

The sum of $23,000 under the appropriation of March 3, 1891, to pay awards to insurance companies, from the findings of the Court of Claims in the case of schooner Betsey and Nancy, Ellis, master, No. 2178, certified to the House April 5, 1892, appears to have been distributed among the legal representatives of the individual stockholders. It further appears that the legal representatives of the stockholders in these insurance companies have gone into the courts of equity and filed bills, and had receivers appointed to represent their interests before the Court of Claims.

Out of the sum of $5,000,000 paid by Spain under the treaty of 1819 for part of these very spoliations—that is, for vessels which were condemned by French consuls in Spanish ports the money being distributed by a commission appointed by the United States, 34 claims of insurance companies were paid $1,479,409.92, as fully appears in Senate Ex. Doc. No. 74, Forty-ninth Congress, first session.

Again, under the treaty of 1831 France paid the United States $5,000,000 for spoliations committed after the treaty of September 30, 1800, chiefly under Napoleon's Milan and Berlin decrees; the money was distributed by a United States commission among the claimants, and 51 insurance company claims were awarded $2,915,791.82, as fully appears in Senate Ex. Doc. No. 74, Forty-ninth Congress, first session.

Of a contemporaneous recovery from Denmark, under the treaty of 1830, of $663,000 distributed by an American commission, one-fourth was paid insurers.

Out of a like recovery from the Two Sicilies, of $500,000, similarly distributed, onefifth was paid to insurers.

Unless a policy expressly covers war risks they are not included in it; but not only were there no war risks covered by policies of insurance in French spoliations, but

they contained clauses expressly excluding them from the policies thus: "Unless war shall in the meantime break out.'

No lawyer familiar with the facts, who has at all studied the question, will contend that there is any similarity between the insurance claims in French spoliation cases and those before the Alabama commission. The Alabama insurance claims were on the usual marine-risk policies, and then special policies were issued against the risk of war, for which special premiums were paid; and they were allowed to come in under the commission if they had suffered actual loss, but they had not.

There is another material distinction between the Alabama claims and these in this: The claim made by the United States against Great Britain growing out of the depredations of the Alabama was expressly a national claim for violation of neutrality on the part of Great Britain, and the private claims were offered in evidence merely for the purpose of showing the extent of the depredations committed in consequence of this violation of neutrality. In the French spoliation cases the claims of American citizens, as we have already seen, were expressly released to France in payment or settlement and as an offset to claims which France as a nation set up against the United States for failure to observe our treaty obligations of February 6, 1778. It is manifest that the claims are dissimilar in fact and absolutely dissimilar in law,

RESPONSE OF THE COURT OF CLAIMS AS TO FRENCH SPOLIATIONS.

Such of these claims as are judicially determined to be valid constitute so high a moral obligation on the Government of the United States that it would seem to be a matter of principle to pay them in vindication of the national honor, however large the amount might be. But it is altogether desirable that Congress should be advised as fully as may be, as to the probable amount of the entire liability, and your committee has sought the best means of obtaining accurate information on this subject, The conjectural statements made for several years past in the annual reports of the Attorney-General have been so vague and conflicting that your committee has called upon the Court of Claims for specific information bearing upon the subject, to be obtained from its official records. These show that $23,992,820.92 on the claims filed have been finally disposed of. (This sum constitutes more than one-half of the highest estimate placed by any of the reports of the Attorney-General on the total amount of the claims.) Of this amount there have been allowed to claimants $3,382,291.96, and this allowance is a fraction more than 14 per cent of the total amount of the claims disposed of. It is a natural and reasonable presumption that the best claims would be those first tried, and we may safely proceed upon the theory that a larger percentage than the above will not be allowed on the balance of the claims; and this would make the entire liability on account of all the claims not exceed $6,000,000.

Of the $3,382,291.96, there has been appropriated and paid the sum of $1,304,095.37 under the act of March 3, 1891. The claims then allowed and not appropriated for, together with those which have since been allowed, amount to $2,078,196.59, and if this sum were appropriated, the balance could be easily met in small annual appropriations of about $500,000 running through six years. Such an arrangement would scarcely be felt in our national finances, and would certainly be more creditable to the United States than to allow these just and honest obligations to remain longer unpaid.

It is proper to state before leaving this point, however, that at the time (namely, January 20, 1885) the act was passed referring these claims to the Court of Claims, commissioners were appointed to procure records and evidence in relation to them from abroad, and that during their absence a great many petitions were filed in the hope that evidence would be found to sustain them. Nine years having now elapsed and no evidence having been filed in a great many of these cases, the probabilities are strongly against any ever being found to sustain them.

In response to our inquiries, the court informs us that "the amounts claimed in the petitions form no basis of the recovery, and are usually largely in excess of the awards;" and this fact is very apparent from the figures given above. The number of petitions and the apparently large amount claimed are explained by the statement of the court that "there are a great many claims indeed, whole classes of them-in which petitions have been filed by two and even three different parties;" but that the trial of all petitions growing out of the seizure of one vessel "precludes the possibility of allowance of duplicate claims.'

From these detailed statements of fact it seems to your committee to be manifest that very erroneous and exaggerated impressions have been created as to the amount of these claims. It is clearly true that the sums named by claimants in their petitions are immaterial and no indication of the amount of their real claims; and that there are

36668-10--10