
    BROWN’S CASE. Ferdinand Brown v. The United States.
    
      On the Proofs.
    
    
      The claimant seeks to recover the proceeds of captured cotton. He is an alien — a native of Hanover. During Ms residence in this country, that kingdom becomes by conquest incorporated, as a part of Prussia. Under the laws of Prussia the Piscas represents the stars, and any citizen may sue the Piscas on contract before any court having jurisdiction of a like action between individuals. Such suits are brought by notice served on the attorney of the Piscas; judgment may be taken by default, and the plaintiff may have process against the property of the Piscas as against the property of an ordinary judgment debtor. Ho discrimination is made against foreigners save that they are required to give security for costs. The citizens of the United Slates have the same right to sue the Piscas as the citizens of Prussia.
    
    I. Domicile iu a foreign country does not affect tlio fact of oitizeusliip, nor work a forfei tare of political rights. When the territory and government of a Kingdom pass to, and become merged in, the territory and government of another nation, all of its subjects pass also. The tie which hinds and carries them is not bodily presence, bat allegiance.
    II. A foreign law may bo proved by a witness who has practiced before the courts of the country, though ho may for a long time subsequent have been a practitioner in the United States. Proof of a foreign law duly certified by a minister of the country at the request of and transmitted to this court by the State Department, will he regarded as evidence prima facie.
    
    III. Though the law of Prussia requires foreigners bringing suit against tlio state to give security for costs, yet if an American citizen may bring such a suit in the courts of that country at any time, and have execution against the inoperty of the government, it is a sufficient compliance with the condition imposed by the Act 27th July, 1868, (15 Stat: L., p. 243,) which restricts the right of prosecuting suits under the Abandoned or captured property acts to aliens “ who are citizens or subjects of any government which accords to citizens of thg United States the right to prosecute claims against such government in its courts."
    
    
      Messrs. Weed & Clarice for tlie claimant:
    The claimant, who is a subject of tlie King of Prussia, seeks to recover tlie proceeds of twelve bales of upland and one bale of sea-island cotton, of which he was the owner at the time of the capture of the city of Savannah, Georgia, by the United States military authorities, on tlie 22d of December, 1804.
    
      The evidence will be found to establish the following propositions :
    1. That the claimant was the owner of the cotton taken from his possession, the proceeds of which he seeks to recover.
    2. That the cotton of the claimant, described in this suit, was taken from the claimant’s possession, and that the same was sold by the Treasury agent of the United States, and the claimant is entitled to the proceeds thereof.
    3. That the claimant gave no aid or comfort to the rebellion, but observed all the obligations imposed upon him tinder the law as a neutral resident.
    The third section of the act of July 28,1868, is as follows :
    “That no action or suit shall be maintained in any court of the United States, or of any State thereof, in the name or in the behalf or interest of anj'' alien against the United States, or any person for or on account of any act done or omitted to be done by such person, as an officer or agent of the United States, in the administration of the act of Congress entitled ‘An act to provide for the collection of abandoned property, and for the prevention of frauds in insurrectionary districts within the United States,’ approved March 12, 1863: Provided, That this section shall not be construed so as to deprive alieus who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, of the privilege, of prosecuting claims against the United States in the Court of Claims, as now provided by law.”
    The right of this claimant to maintain his action or suit in this court therefore depends upon whether we have shown such facts in this case as will entitle him to the benefits contained in the proviso in said section of the statute. The existence of this right is a fact to be found by the court. How far or to what extent the right is accorded is a question of lato, to be determined from the fact established.
    The testimony as to the existence of this right establishes, beyond all controversy, the following propositions:
    1st. That by the laws of Prussia, an American citizen ma3~ prosecute claims against that government in its courts.
    2d. That the existence of this right is not a matter of favor, but of strict right.
    3d. That the right conferred can only-be exercised judicially, and tlie government of Prussia enjoys no immunity from its exercise either by subject or alien.
    
      Mr. Robert 8. Sale, special counsel of the Treasury, for the defendants:
    The claimant is a native of the Kingdom of Hanover, domiciled in Savannah since 1860.
    The claim is for 12 bales upland cotton and one small bale or pocket (110 pounds — say, one-quarter bale) sea-island cotton, captured at Savannah.
    Claimant’s title, alienage, and neutrality, and the capture, seizure, and receipt of proceeds by the Treasury, seem sufficiently proved. The only question for discussion respects his alienage.
    Claimant alleges and proves himself a subject of the King of Hanover.
    He has been domiciled in the United States since 1860.
    Hanover, by conquest, in 1866 became incorporated in the Kingdom of Prussia.
    It is submitted that the claimant, domiciled in this country at the time of the conquest, was not affected by the conquest of his native country; never became a subject of the King of Prussia, or owed him any allegiance whatever, and can claim no resulting protection from the laws of that country.
    The act of 27th July, 1868, excludes from this court in this class'of cases all aliens, subject only to the proviso. As an alien the claimant is excluded, unless he bring himself within the proviso.
    An alien whose country has been “ wiped out,”.so that he has become “ a man without a country,” can claim nothing under the proviso. That is founded in the idea of reciprocity, and he has nothing from which to reciprocate.
    Proof of Prussian law, sufficient to bring a subject of Prussia within the proviso, will not therefore aid the claimant.
    It is submitted that even as to a Prussian subject, if the claimant were to be regarded m that light, the proof is insufficient to bring him within the proviso. .
    The only proof on this subject is the deposition of Frederick Kapp, of New York, taken in the case of A. B. Weslow, but adopted by consent in this case, and a communication from the “ Boyal Prussian minister of state and justice,’'’ wliicb, though, not, perhaps, technically in form to entitle it to be received in evidence, is not objected to by the defendants on that ground,- and may be considered by the court as if fully and formally established.
    ■ The deposition of Mr. Kapp is to be construed in the light of the stipulation filed on the part of the defendants, showing the opportunity given him for examination of the authorities and verification of his opinion, and his failure to fortify his quite uncertain opinion and recollection on such opportunity.
    The certificate of the Prussian minister certainly does not show Prussian subjects within the proviso. That involves two entirely distinct points — first, that claims against that government may be prosecuted in its courts; and, second, that the right to such prosecution is accorded to citizens of the United States. ' .
    The certificate in question only goes to show that foreigners are put upon the same footing with subjects as to rights in the courts of Prussia, but whollj- fails to show that the “right is accorded” to any person to prosecute claims against that government in its courts.
    In the first place, that right, to fulfil the requirement of the lawr, must be an absolute rig-lit, and not qualified by any condition, especially by an onerous condition, which mightci keep the word of promise to the ear and break it to the hope.”
    Kapp says, “ The only difference is that foreigners have to give security for costs; others need not do it.”
    This, in the case of a foreigner claiming to prosecute a suit, against a powerful government, may well be a denial of justice.
    Again, the proviso to the second section of the act of 27th July, 1868, is based on the idea of full and-complete reciprocity, but the imposition of this condition takes the case out of the very spirit of the statute. The United States impose no security for costs as a condition for alien claimants suing in the Court of Claims; and so long as Prussia attaches that condition to our citizens suing her government in her courts, she is not entitled within the spirit of this proviso to claim the free access to our. Court of Claims which Congress has declared, in effect, to be conditioned on her like treatment of our citizens.
   Nott, J.,

delivered tire opinion of the court:

This is an action brought to recover the net proceeds of 12 bales of upland and of half a bale of sea-island cotton captured at Savannah. The proceeds now in the Treasury are alleged to amount to $7,636.

It is conceded in this case that the four essential facts required by the Abandoned or captured property act have been established — that the claimant did not give aid or comfort to the rebellion j that he owned the cotton; that it was captured; and that the proceeds are now in the Treasury. The only question in the case arises under the Act 27th July, 1868,(15 Stat. L., p. 243, § 2,) which controls the right of aliens to maintain suits against the government or its officers under the Abandoned or captured property act That privilege is limited by the statute to those u aliens who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts.”

The claimant is an alien — a native of Hanover — a subject of Prussia. The last qualification is, however, controverted by the defendants for the reason that “ Hanover, by conquest, in 1866 became incorporated in the Kingdom of Prussia.”

And it is insisted “ that the claimant, domiciled in this country at the time of the conquest, was not affected by the conquest of his native country; that he never became a subject of the King of Prussia.”

The theory of the objection is, that the privilege of suing in this court “ is founded on the idea of reciprocity,” and the claimant being an alien, domiciled here when the nationality of his country was extinguished, did not become a subject of Prussia, and is, as it were, “ a man without a country,” who has “nothing from which to reciprocate.”

We cannot accept the idea that the matter of domicile affects the fact of citizenship nor that a mere foreign residence of itself can work a forfeiture of political rights.

When the territory and government of a kingdom pass to, and become merged in, the territory and government of another nation, all of its subjects pass also. The tie which binds and carries them is not bodily presence, but allegiance.

The sufficiency of the proof of Prussian law on this point is also denied. The law comes to us upon the authority of the “Royal Minister of state and justice,” who certifies, through our Department of State, “tl^at suits between the chief of the nation and his subjects are to be brought and decided in the common courts of justice in accordance with law.” And that “the expression ‘ chief of the nation’ includes the treasury, and that, in accordance with the definition of the above quoted legal phrase, citizens of foreign countries in Prussia may enjoy the same •privileges in regard to legal protection and defence as our oion subjects, and similar rights of action against the national exchequer. The right to bring such claims before the Prussian courts belongs, to the same extent, as much to citizens of the United States of America as to Prussian subjects.”

It is also shown by Mr. Frederick Kapp, a member of the New York bar, but who for three years practiced law in the courts of Prussia, as a matter of fact within his personal knowledge, that this right is exercised by foreigners, and that this provision of the Prussian law prevails in Hanover.

Neither of these witnesses is explicit in statutory reference; but in such cases the court takes the law from the witness, and a witness is competent who has been duly admitted to practice iu the courts of the country, and knows the legal fact of which he affirms. That he has not practiced recently will lessen the weight of his testimony, bat not destroy his competency. Here the testimony cited certainly presents a case prima facie.

A point is also suggested by the vigilant counsel of the Treasury in the fact that a “difference is that foreigners have to give security for costs; others need not do it.”

Security for costs may be an inconvenience, but cannot be considered in a legal sense the denial of a right. In our own country the citizen of one State is generally required to give security when appearing as a plaintiff in the courts of another; yet no one ever regards the requirement as a bar to judicial redress. Congress could hardly have intended to exact from foreign governments in this particular a greater liberality than is common among our own States. The restriction rests not on prejudice to the foreigner, but on the fact that the process of the court runs not to the domicile of the suitor. Poverty, heedlessness, a hundred like causes, daily prevent the due administration of human justice, yet noue can be regarded' as constituting a legal impediment to the attainment of a judicial right.

It is a curious fact, not now generally known, that the example of Prussia and the German States in guarding’ the private rights of persons by subjecting the government in matters of contract to the judicial power of ordinary courts of justice, led to the establishment of the Court of Claims.

In a report made to the House of Representatives in 1848, a distinguished member, after showing (with many other suggestive facts) that out of 17,573 private claims presented to Congress, 8,948 were never even considered, thus spoke:

“ The chairman of the committee has obtained from the ministers of the several leading governments of Europe statements as to the course pursued iu claims against the governments of Russia, Austria, and the smaller German States, and in Holland, and one other nation. In relation to all mere matters of contract and ordinary trespasses, the government is heard in the ordinary tribunals of the country, which are governed precisely by the same rules of law iu these cases as between individuals. These governments, although far behind us in civil freedom and constitutional liberty, never shrink from the full and fair investigation of the claims, and always submit to an adverse decision by the courts. It has been left to our own government to deny to the citizen who has a demand against it the power to try the question before its own courts, and yet has furnished no adequate tribunal for the purpose.

“Not having already access to the works of the jurists of the several nations, the intelligent gentlemen, who have given the statement in relation to the laws and usages of the European and other nations on this subject, have necessarily given a general statement. The information, however, thus furnished, the committee regard as entirely reliable and of great value, and insert the various letters at length and append them to this report.

“ They all agree in stating that it is an established rule of the German common law, and one which is adopted and practiced upon by all the German States, ‘that,’ as stated by Baron Gerolt, the Prussian minister, ‘claims against the government are to be examined and decided by the common courts of justice, and in the way of a common lawsuit.™ (Report by Hon. J. A. Rockwell, from Committee of Claims, House of Representatives, April 26, 1848, first session Thirtieth Congress, vol 3.)

The precise manner in which suits against the Prussian gov-eminent are brought and prosecuted, is thus detailed by the witness in this case, Mr. Kapp, of the New York bar:

“ The state represented in its pecuniary capacity as the representative of money and property affairs, is called the Mseus ; and this Fiscus is a quasi corporation, and has standing in its courts like any other party; it sues and is sued. For the purpose of maintaining suits against the government, the Fiscus stands in the place of the government; for the purpose of compelling the payment of demands against the state, the Fiscus is substituted for the state itself. I know of no restriction of the rights of subjects of Prussia to maintain any suits against the Fisctos; subjects, as well as foreigners — any man can sue the Fisctos; the power to maintain a suit against the Fiscus is a matter of absolute right, rather than of favor. The only difference is that'foreigners have to give security for costs; others need not do it. American citizens have the same right to maintain their action against the Fiscus as Prussian citizens. Under the name of ‘Fiscus,7 are comprised all kinds of state revenues which flow from the right of laying taxes or duties, or from special state property, or from royal usufructs. Suits in relation to state property, in which the Fiscus is either plaintiff or defendant against others, are treated and decided like suits among private parties, and likewise all the consequences of default and executions take place against the Fisctos as well as against private parties. The Fiscus is brought into court by the service of summons and complaint on the Fiscal attorney, but if his name should not be known, or if parties did not know him, it is served on the president of the government of that circle, the Frcisidium der Begierung. Each province has got what they call a superior president; the proper title is 1Oberprasidium,7 and under this upper president are two or three, according to the size of the province. Each circle has a president, we style him ‘ Frcisidium der Begierung ;’ over president’ is the chief of the whole province in all administrative matters; ‘ president,’ for each circle. The Fiscal attorney has to answer just like any other party and bring his proof, and has to make his answer. Judgments rendered against the Fiscus are satisfied and discharged in the usual way by execution.”

The judgment of the court is, that the claimant recover of the defendants the sum of $2,219 88.  