of 1800; that is, claims "confirmed," to use this word, by that treaty's fourth and fifth articles.

The distinction between different classes of claims then existing between the United States and France must be clearly marked out before the treaty of 1803 can be properly understood. The second article of the treaty of 1800 covered claims for illegal seizures and condemnations which were tied to the treaties of 1778. But all the illegal captures were not covered by that second article, for the fourth article treated of others, that is of "property captured and not yet definitely condemned, or which may be captured before the exchange of ratifications;" and this property, it was agreed, should be restored. That is, while the negotiations of the Ellsworth mission were proceeding the French decrees remained in force and spoliations had not stopped; the cases of some seized American vessels were then pending before the French tribunals, and these were the ones to be restored if not "definitely condemned" by the time the treaty became a law; others might be seized pending the discussion and before exchange of ratification, in fact such seizures were made, and these also were to be restored.

Additional proof that this fourth article was in effect a mere modus vivendi is found in its concluding paragraph, which provides that it shall take effect from the date of signature, not from the exchange of ratifications, and that if any property should be condemned, that is, condemned in the future, before knowledge of the stipulation "shall be obtained, the property shall without delay be restored or paid for."

Now, the property covered by this article, to wit, that then before the tribunals or which might thereafter come before the tribunals before the new treaty took effect, never was restored or paid for, although spoliations continued for some time. It is important here to note the distinction between the position as against the French Government, of cases pending during the negotiation or which might thereafter arise, and that now before this court wherein the condenmation had occurred before. This case and those like it were "claims to indemnity" merely; the property had disappeared and could not be restored; the French tribunals had definitively acted, and payment for it would be made only upon admission by the United States of the continuing force of the ancient treaties; while, as to then pending cases the property could be restored, or in case of mistaken sale its value could be easily and immediately ascertained, and the fourth article absolutely promised restoration or payment.

The agreement of 1803 is contained in three instruments forming the contract by which we acquired Louisiana; they give no rights to these claimants, as is popularly supposed; on the contrary, it is contended by the Government that any rights which ever existed were destroyed by them. The third treaty providing for the payment of "sums due by France to the citizens of the United States" is the only one bearing upon these cases.

Article I provides that these "sums" called "debts" contracted before September 30, 1800 (the date of the prior treaty), shall be paid, with interest.

Article II describes the debts as those set forth in an annexed conjectural note, which is a list of claims allowed by the French accounting officers for such articles as rice, flour, salt beef, cloth, leather, cotton, and indigo, wines and spirits; while Article IV limits the preceding articles to debts still due American citizens yet creditors of France "for supplies, for embargoes, and prizes made at sea in which the appeal has been properly lodged within the time mentioned in the convention" of 1800. But there is no such time mentioned in that convention, nor is there a word in it looking to any appeal whatever from decisions of inferior tribunals; the only provision about prizes in that treaty is that contained in its fourth article, directing that in the future they be restored.

Proceeding now to Article V of this somewhat mysterious instrument of 1803, we find another limitation upon the preceding articles, to wit, that they shall cover only captures wherein the council of prizes has ordered restitution if the claim was valid against France, and then only in case of "insufficiency of the captors," i. e., that the privateer's bond was not good. Further, it shall apply to debts mentioned in the fifth article of the treaty of 1800, that is, "debts" (not claims for damage by tort) due by one nation to citizens of the other; and this fifth article of 1800 expressly bars claims for captures or confiscations, while the fifth article of 1803 expressly does not comprehend "prizes whose condemnation has been or shall be confirmed." Therefore, by this series of limitations, the scope of the treaty of 1803 is confined on its face, and so far as the cases at bar are interested in it, "to captures, of which the council of prizes shall have ordered restitution," provided the claim was a valid one and the captor insufficient. Really, there does not seem very much left of it, so far as "embargoes and prizes made at sea" (Article IV) are concerned.

The significant fact is stated to us by counsel in this connection that there were presented to the commission formed under the treaty of 1831, which we shall soon have occasion to examine, claims for four vessels, the Dominick Terry, the Nancy, the

Nathanial, and the Traveller, taken between September 30, 1800, and July 31, 1801, and not paid for. These claims were rejected because the vessels were captured before July 31, 1801, the date when ratifications of the treaty of 1800 were exchanged. Further the report of the board under the treaty of 1803 shows that only eight captures at sea were allowed, a ridiculously small number if the class of claims now at bar were within the jurisdiction of that tribunal.

That the settlement and payment of "debts," not of claims for tort, was the primary object of the treaty of 1803 is explained in its preamble and is apparent from its text, while the treaty of 1800 dealt with torts and indemnities for wrongs committed upon our commerce. The claim for debts was not sacrificed by the treaty of 1800, but kept alive by the fifth article, which, in further proof of the abandonment of claims for tort, explicitly excepted from the benefits of its provisions all "indemnities claimed on account of captures and confiscations." But these "debts contracted by one of the two nations with individuals of the other" were not paid as the treaty of 1800 promised, nor, as Mr. Livingston said to the French Government in 1802, was there the most "distant hope of their payment.' (Doc. 102, p. 714.)

The association of the second and fifth articles of the treaty of 1800 in the preamble of the treaty of 1803 has been deemed significant as showing an intention to revive and settle the second-article claims, now commonly known as "spoliation" claims, whereas the allusion was intended to reaffirm the exclusion of these claims already made by the second article; for the fifth article (1800) includes "debts" which are to be settled and expressly excludes "indemnities;" that is, excludes the subject-matter of the second article, which was not to be settled; so that France, being desirous in 1803, as the preamble says, "in compliance with the second and fifth articles of the convention of 1800 to secure the payment of the sums due by France to the citizens of the United States," covenanted to pay "debts," not indemnity for torts other than those specified, and which had been turned into debts by the fourth article of the treaty of 1800. To put it in another form: As the original second article had ceased to exist, and was replaced by a provision that the treaty should last eight years, of course a reference to this new second article in the treaty of 1803 would have been absurd; so we must conclude that the negotiators referred to the original second article, the article which had been expunged by agreement. That article, so far as claims of citizens were concerned, referred to torts and nothing else; the fifth article referred to "debts," and provided that payment should be made therefor; and then went on to make an express exclusion from its benefits of claims for captures and confiscations; that is, claims arising from torts which were covered by the second article as it then stood. What more natural then that, in rehearsing the objects of the treaty of 1803, the two articles should be brought together in the preamble, the fifth article as embracing the debts due and the second article as covering the express exception made in the fifth article, which "includes debts contracted," and excludes "indemnities claimed on account of captures and confiscations?" The language of the preamble is, therefore, in compliance with the second as well as with the fifth articles of the treaty of 1800.

We are of opinion that the treaty of 1803 had no reference to the claims embraced in the second article of the treaty of 1800.

CREW LIST.

Turning to the particular case now on trial, we consider it with the principle admitted that the claims popularly known as "French spoliation claims" were, as a class, and if embraced in the description of the second article of the treaty of 1800, valid claims against France, which were surrendered by our Government for the valuable consideration found in a release from the obligations of the treaties of 1778, and that, by this action, the Government of the United States assumed the liabilities of France in regard to them, and is in duty bound to recompense the individuals who suffered loss by the illegal captures and condemnations.

The findings show that the schooner Sally, owned by Americans, commanded by an American, and laden with an American cargo, while on a commercial_voyage from Massachusetts to Spain, was on the 5th day of June, 1797, seized by the French privateer Intrépide, taken to the port of Nantes, there condemned by a French tribunal, and "confiscated" for the benefit of the privateer. It was not alleged that she had violated the law of nations, either by attempting a blockade or by carrying contraband, or in any other manner, but that she had violated a local French municipal regulation "concerning the navigation of neutrals." It appears upon the face of the decree that the Government of France, through laws passed by its own legislature, valid within its territorial jurisdiction and upon its own ships, but not elsewhere, attempted to regulate the conduct of neutral merchantmen upon the high seas, where they were subject only to the laws of their own country and that law of abstract right and justice which by mutual consent has become crystallized into the law of nations.

To learn wherein the schooner violated the French decree we must turn to the findings, which rehearse the judgment of the tribunal, as follows:

"That while the master may be correct in the sum total of his clearance papers he is flagrantly at fault as to his crew-list" and "considering that the obligation common to the French nation and to the United States, and which constitutes the safety of their respective navigation, is defined by the treaty of February 6, 1778, which decides, articles 25 and 27, that every captain who receives a passport must be provided with a list, signed and attested by witnesses, containing the names and surnames and place of birth and residence of the persons composing the crew of his ship and of all persons embarking upon her, which he will not receive without the knowledge and permission of the naval officers. Considering that the memorandum or crew-list fulfills none of these formalities, inasmuch as it is unsigned, that the places of birth and residence of the men composing the crew are not declared, and the permission of the naval officer is not given; considering that article 6 of section 7 of the marine regulations of 1781 declares to be lawful prize the cargoes of confiscated ships," and "considering finally that article 4 of the decree of the executive directory of the 12th Ventose, year five, is clear and precise, and that it declares to be a good and lawful prize every American ship which shall not have a crew-list in due form such as is described by the model annexed to the treaty of February 6, 1778," therefore, the court, in conformity with these laws, and especially with article 4 of the said decree, declared valid the capture of the Sally and her cargo, and declared the captain to belong to the "enemies of the Republic" because he did not have a crew-list in conformity with the French decree. The vessel and cargo were confiscated because the crew list, the "rôle d'équipage, was not in form, although there is not a word or sentence, as the French afterwards admitted (Doc. 102, p. 637), in the treaties of 1778 requiring any such document. The French decree required it, but we cannot admit that the Government of a foreign country may stretch its arm over the ocean, and, seizing an American vessel, direct it as to the papers it shall carry, under penalty of confiscation. There is no allegation in the proceeding that the Sally did not have all the papers, other than this crew list, required by the treaty of 1778 and the laws of the United States. In fact, the court itself admits this in saying that the captain is correct "in the sum total of his clearance papers, * * but flagrantly in fault as to his crew list." How flagrantly at fault? He had complied with the laws of his country, he had not violated a provision of the treaties of 1778, and it is not hinted that he infringed the law of nations or intended to do so.

*

The confiscation rests upon the decree of March 2, 1797, authorizing the seizure and condemnation of every American vessel not having on board "a rôle d'équipage, in proper form, such as is prescribed by the model annexed to the treaty of the 6th of February, 1778." A "rôle d'équipage" is for all practical purposes a "crew list," although technically, under French regulations, it contains the names of all on board, including the passengers. Still "crew list" is a sufficient translation for the purposes of this case.

The treaty of 1778 required vessels of each party to be furnished with a passport and a certificate as to her cargo and destination, but no mention whatever is made of a crew list. Seizures on account of the lack of this instrument were, however, made even before the decree of March, 1797, and our consul-general, in calling attention to this fact, said to the minister of foreign affairs (February 23, 1797, ibid., p. 155):

* * *

"By no regulations of the United States are our ships subjected to this formality; and not one of our vessels has (rôle d'équipage) a crew list thus countersigned. Moreover, in the different treaties and conventions that connect France with America there is not found a single article sufficient to justify the doctrine set forth by the privateer. I consider it unnecessary for me to communicate on this subject the right and supreme law of nations, being persuaded that you will think with me that every free and independent nation should possess the exclusive right to establish regulations for the management of their own navigation; and that no nation possesses the right to subject the citizens of another power to formalities to be observed in a foreign country not exacted by the laws of said country or by those to which said citizens belong. * * The principle which the captain [of the privateer] desires

*

to see established would lead to the condemnation of all the ships belonging to my nation actually found in the different ports of France, under the faith of treaties, and to authorize the cruisers of the Republic to capture all our merchantmen. Mr. Pinckney afterwards (May 15, 1797, ibid., p. 171) writes:

"Our papers are, as they ought to be, according to the maritime laws of our country." And again (June 28, 1797, ibid., p. 176):

"Mr. Adet [the French minister] arrived at Havre in an American ship without a rôle d'équipage. The Courrier Maritime du Havre infers that Mr. Adet

* * *

must have been convinced, with all other publicists, that a rôle d'équipage was not necessary, and that all that was requisite was a passport conformable to the model annexed to the treaty of 1778."

Mr. Pickering, then Secretary of State, wrote the next year (December 13, 1798, ibid., p. 429):

"There is no shadow of foundation for the claims set up by the French Government of the necessity of our vessels being provided with a rôle d'équipage.",

In default of express treaty provision no Government can prescribe to our merchantmen navigating the high seas, the detailed form and number of the papers they are to carry, nor seize or confiscate those merchantmen for non-compliance with that nation's municipal statutes. The seizure of this vessel, and of others under like conditions, was clearly illegal and unjustifiable.

PRIZE COURTS.

The defendants say, further, the condemnation cannot be illegal because made by a prize court having jurisdiction, and the decisions of such courts are final and binding. This proposition is of course admitted so far as the res is concerned; the decision of the court, as to that, is undoubtedly final, and vests good title in the purchaser at the sale; not so as to the diplomatic claim, for that claim has its very foundation in the judicial decision, and its validity depends upon the justice of the court's proceedings and conclusion. It is an elementary doctrine of diplomacy that the citizen must exhaust his remedy in the local courts before he can fall back upon his Government for diplomatic redress; he must then present such a case as will authorize that Government to urge that there has been a failure of justice. The diplomatic claim, therefore, is based not so much upon the original wrong upon which the court decided as upon the action and conclusion of the court itself, and, diplomatically speaking, there is no claim until the courts have decided. That decision, then, is not only not final, but, on the contrary, is the beginning, the very cornerstone, of the international controversy. This leads us naturally to another point made by the defense, in that the claimant did not "exhaust his remedy" because he did not prosecute an appeal. We of course admit that usually there is no foundation for diplomatic action until a case cognizable by the local courts is prosecuted to that of last resort; but this doctrine involves the admission that there are courts freely open to the claimant, and that he is unhampered in the protection of his rights therein, including his right of appeal. It is within the knowledge of every casual reader of the history of the time that no such condition of affairs in fact then existed.

The very valuable report of Mr. Broadhead shows that prior to March 27, 1800, there was no appeal except to the department of the Loire-Inférieure, and in the then existing state of bad feeing and modified hostilities, and under the surrounding circumstances, this was to the captains of the seized vessels, in most if not in all cases, a physical impossibility. Nor prior to the agreement of 1800 was there any practical reason for appealing to a court when the result, as our seamen believed, whether rightly or not, but still honestly, was a foregone conclusion, and while negotiations were progressing for a settlement; nor is there anything in these negotiations showing that a technical exhaustion of legal remedy would be required. We are of opinion that the claimant was not, under these purely exceptional circumstances, obliged to prosecute his case through the highest court, even if he could have done so, which we doubt.

TREATIES OF 1819 AND 1831.

This court is forbidden by the act conferring jurisdiction not only to examine claims embraced in the treaty of 1803, which we have considered, but also those allowed and paid in whole or in part under the treaty of 1819 with Spain and those allowed in whole or in part under the treaty of 1831 with France.

The reference heretofore made in this opinion to the Spanish treaty is sufficient to show its inapplicability to vessels seized on the high seas by a French privateer, taken to a French port, and there illegally condemned and confiscated; so that treaty may be thrown out of the consideration of this case.

The treaty of 1831 is a claims treaty, by which the French Government, "in order to liberate itself completely from all the reclamations preferred against it by citizens of the United States for unlawful seizures, captures, sequestrations, confiscations, or destructions of their vessels, cargoes, or other property," agreed to pay 25,000,000 francs to the United States for distribution (Article I), while the United States on their part agreed to pay to France for claims, described in language somewhat similar, the sum of 1,500,000 francs (Article III). As to other claims each country opened its courts to the citizens of the other, and finally France abandoned its demands under the

eighth article of the Louisiana treaty in return for a reduction of duties upon French

wines.

The wording of this treaty is broad enough at first glance to sustain the defendants' contention that these claims are included in it; but treaties and statutes, like every other document, must be read in the light of the facts as they existed at the time. Ă treaty now made with Great Britain providing a settlement of "all claims" could not be held to reopen the proceedings of the Geneva arbitration and to authorize payment of claims there dismissed, for the award was final, both as to what was allowed and as to what was refused. Nor could a similar general convention with France permit an opening of the proceedings of the Franco-American Commission with possible payment of claims there refused and declared forever barred.

Such treaties look not to dead issues, but to living pending claims forming at the time a subject of contention between the Governments, and not to those universally regarded as finally settled. Claims of the class of the one at bar had been disposed of in 1801, when the President and Senate concurred in Napoleon's stipulation as to the second article, and since that time, although they had been constantly pressed upon the United States as an obligation of that Government to its citizens, they nowhere appear as a subject of discussion between the nations. France, by the treaty of 1831, desired to liberate itself from claims "preferred against it" by citizens of the United States, but these spoliation claims were not then being preferred against it; on the contrary, since 1801 the claimants had turned their attention exclusively to the United States, recognizing the force and effect of what was called the "retrenchment of the second article." The French Government clearly understood this treaty of 1831 as excluding all American claims of every description originating prior to the treaties of 1803. (Ex. Doc., 22d Cong., 2d sess., No. 147, p. 165.)

Our commissioners who distributed the fund also so understood it and required every claimant to show that his "claim remained unimpaired and in full force against France in 1831. (Ex. Doc. H. R., 24th Cong., 1st sess., No. 117, p. 4.) But these spoliation claims had not only been impaired but destroyed as a French obligation by the treaty of 1800. One hundred and five cases of captures made prior to September 30, 1800, were presented to the board and rejected.

A broad distinction is made in the remedial statute (January 20, 1885) between the claims described in these different treaties of 1803, 1819, and 1831. As to the treaty of 1803 the act does not extend to claims "embraced" in its provisions; as to the treaty of 1819, the act does not extend to claims "allowed and paid in whole or in part" under its provisions; as to the treaty of 1831, the act does not extend to claims "allowed in whole or in part" under its provisions. It is not contended that this claim was "allowed in whole or in part" under the provisions of the treaty of 1831.

ABROGATION OF TREATIES OF 1778.

We have not considered the point that the treaties of 1778 were abrogated by the act of Congress passed in 1798. That question, which the ablest minds of the period were unable to solve, and which proved an ever present and enduring obstacle to all negotiation until forcibly removed by Napoleon, with our concurrence, we fortunately are not forced to deal with. The rights of this claimant rest upon no convention, but are founded upon international law. Treaty or no treaty, a foreign nation cannot be permitted to confiscate an American merchantman engaged in legitimate commerce upon the high seas because his crew-list does not fulfill the requirements of that nation's local ordinances. That the act of Congress was binding within the jurisdiction of the United States and was necessarily to be so regarded by our courts does not now admit of question. The treaties were, however, not only part of the supreme law of the land wherein they were replaced, within the jurisdiction of the Constitution, by a later supreme law, to wit, a statute, but they were also, as between the two Republics, contracts, which one of the parties attempted to annul. Treaties containing no clause fixing their duration are, under certain circumstances, voidable at the option of one party; whether there existed in 1798 such circumstances as authorized and made valid an abrogation of the treaties of 1778 by the United States was the very question left unsettled by the treaty of 1800, the one question upon which by no possibility apparently could the parties agree.

For the same reason we find it unnecessary to examine how far the French violated the agreement by their treaty of 1786 with Great Britain (15 Martens Recueil de Traités, 2d ed., vol. 4, p. 155), or the effect, by way of abrogation of these agreements, of the Jay treaty, or the change in the form of government in France.