
    ROTHSCHILD’S CASE. James Mayer De Rothschild et al. v. The United States.
    
      On the Proofs.
    
    
      At the breaking out of the rebellion certain French subjects are the owners of tobacco stored in Richmond. It remains there till the capture of the city, and soon after is seized by the Treasury agents as captured propwty. The oioners then bring their action in the Richmond court of hustings to recover possession and restrain the agents from further interference. The Secretary of the Treasury and the owners then stipulated that the suit be dismissed, the tobacco sold, the proceeds converted into United States bonds, and the bonds deposited in the First National Ranh at Washington, and that the controversy be determined by suit brought in this court. Itisalso expressly provided that thebondsso deposited“ stall l)e delivered and paid over to the party entitled to the same by the judgment or decree of the said Court of Claims.” Pursuant to this stipulation an action is brought in this court, and the owners prove their title to the tobacco, and the law of France respecting suits against that government.
    
    I. By the -written, laws and precedents of France, a French subject has the right to sue the French government for real andpersonal property. The right of anAmeriean citizen to sue the Fren oh government is exactly the same as that enjoyed by French citizens, subject only to giving security, judicaium solvi.
    
    II. A volume of foreign statutes will be deemed sufficiently authenticated if it has been received under the authorized reciprocal interchange of statutes between tbis government and France.
    III. Where it is stipulated between the Secretary of the Treasury and the owners of captured property that a suit then ponding for the recovery of the property be dismissed, the property sold, the proceeds invested in ■bonds, ancl the bonds deposited with a bant to be “ delivered and paid over to the party entitled to the same,” as may be determined by the judgment of this court; and the owners thereupon bring the suit contemplated by the stipulation and establish their right to recover, the judgment or decree of this court will follow the stipulation, and direct that the balance in the bank be paid and delivered to the owners.
    
      Messrs. Hughes, Denver & Peelc for the claimants:
    This is an action brought by original petition to recover the proceeds of three hundred and sixty-six hogsheads of tobacco.
    The claimants are citizens of France; they purchased this tobacco in Richmond, Virginia, in the summer of I860. Before it was removed the war of the rebellion commenced and a blockade of the rebel ports established. It remained in Richmond until the occupation of that city by the United States forces, and subsequently the agents of the United States Treasury Department took possession of it, claiming it as captured property.
    This claim was resisted by the owners, and the tobacco having remained on store in the city of Richmond until after the reestablishment of the civil courts, two actions of detinue and two suits in chancery were commenced against the officers and agents of the United States having it in custody.
    A compromise was then agreed upon between De Rothschild Brothers and the agents of the government, and a formal stipulation executed, which was approved by the Secretary of the Treasury.
    This recites that, whereas the tobacco is claimed by De Rothschild Brothers to be their property, and is claimed by the United States as captured and abandoned property, and whereas it has been agreed between said claimants that their respective claims to the tobacco aforesaid, and all claims connected with or arising therefrom, shall be decided by the judgment or decree of the United States Court of Claims, in proceedings to be hereafter instituted in said court, it is provided that the tobacco shall be sold and the proceeds invested in United States bonds, which shall be deposited in the First National Bank, Washington, District of Columbia, and be delivered to the party entitled to the same by the judgment, or decree of this court.
    This stipulation has been complied with, by the sale of the tobacco and the investment of the proceeds as directed, the net stun thus invested being $56,800. These facts are all proved by reference to the stipulation on file, and by the deposition of Hon. Ang. Belmont.
    ■ 'The seizure is proved by the same deposition and by the stipulation. ■
    As to the neutrality of the claimant—
    Mr. Belmont testifies “to my knowledge, from my presence in Paris during the war, and from my general knowledge of the business of the house, and from facts which show the contrary, I am convinced that they had no transaction of any kind whatever with the confederate government or its agents. Neither they nor any of their firms or connections in London or on the continent ever bought or had any interest in confederate securities. One of the firm, in 1863, said in my presence that the confederate bonds were not worth the value of the blotting-paper which he was then using. My belief, as to their having no interest in confederate securities, is confirmed by my knowledge that.they were one of the first of the European bankers to buy and hold largely of the federal loans, which I know, in 1863, they were large owners of. One of the claimants, in 1863, in my presence, showed to the American minister at Brussels, Mr. Sanford, then on a visit to Paris, from the books of the claimants, the large amounts of federal securities the firm had purchased for themselves and their friends. In the spring of 1862 Baron Bothschild told me the confederacy would fall some time, just as the large monument in Place Vendóme would fall if the base were taken away. From the beginning of the war I knew from my correspondence with the claimants, from my interviews with them, and from my knowledgeof their business, that they hr no way gave aid or comfort to the rebellion, in any manner whatever.”
    The claimants were all citizens of France.
    The Act July 27, 1868, in its second section, enacts that no suit shall be maintained by any alien on account of any act done or omitted to be done in the administration of the statutes relating to captured and abandoned property, or in virtue of or under color of said acts, with this proviso :
    “ Provided, That this section shall not be construed so as to deprive 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, of the priv-ileg'e of iirosecuting claims against the United States in. the Court of Claims, as now provided by law.”
    The next section provides that the remedy given by the third section of the Act March 12, 1863, in relation to captured property, shall be exclusive, “precluding the owner of any property taken by the agents of the Treasury Department, as abandoned or captured property, in virtue or under color of said act, from suit at common law, or any other mode of redress whatever, before any court or tribunal other than said Court of Claims.”
    The former statutes conferring upon this court jurisdiction of suits to recover the proceeds of captured property, and indeed those relating to its general jurisdiction, made no allusion to aliens, and if they were permitted to sue, it was because they could make the proof and comply with the conditions required of all claimants. This court decided, in the case of Byrnes v. United States, (3 C. Cls., p. 197,) that these acts did not “provide that the claimant shall establish his position, sympathy, and loyalty, but simply that he shall prove to the satisfaction of the court that he has not given aid or comfort to the rebellion; ” and, therefore, any alien could sue for and recover the proceeds of captured property.
    This ruling is fully confirmed by the Act Jtily 27,1868. That act clearly confirms the right of aliens, subjects of certain governments, to pursue the remedy given in the third section of the Act March 12, 1863.
    The conditions imposed are that the alien shall be a citizen or subject of a government which accords to the citizens of the United States the right to prosecute claims against such government in its courts.
    The character of the claims which that government must permit American citizens to prosecute is not defined.
    The statute does not furnish any definition of these claims, or any clue by which we can seek for a definition.
    The word “ claims” being used in its general sense, without restriction or qualification, it should be construed to give the most liberal and extended effect to this clause of the statute, because the object of it is remedial.
    The clause of the statute under consideration does not define the character of the courts before which citizens of the United States shall be permitted to prosecute claims against the foreign government.
    
      The term !i court ” is not used with reference to our own institutions, but directly in reference to those foreign states whose subjects or citizens might prefer claims here for proceeds of captured and abandoned property.
    The term must therefore be construed in its broadest sense, as applicable to the institutions of the nations of the world.
    It is to be observed that the courts referred to in the proviso are those in which claims against the government may be prosecuted, and there is nothing in the act from which we can infer that the courts intended should have the power to enforce payment. To establish such a court would be going further than our own country has ever gone. The Court of Claims can only establish a debt and fix the liability of the government.
    To prove the right of an American citizen to prosecute claims against the government of France, we have taken the deposition of Mr. G-abriel Ambroise Bosviel, who is president of the Order of Advocates at the Gonseil d’JStat, and at the Gour de Cassation, who has been a member of the bar for thirty-two years, twenty-four years at the Gour de Cassation, and eight years at the Gour Impértale. Also of M. Yictor Frangois Gronalle, an ex-president of the Order of Advocates at the Gonseil d’JBtat and at the Gour de Gassation, a member of the bar for twenty-seven years.
    M. Bosviel states that an American citizen, or any other foreigner whatever, has the same rights as a French citizen, and is subject to the same jurisdiction in such cases, with the exception of giving security judicatum solvi.
    
    It is exactly the same thing;, there is no distinction made; the same jurisdiction applies to either.
    In the settlement of the estate of Mrs. Eliza Walker, Mrs. de Klyn, an American heir, instituted a suit against the government, (Administration des Domaines;) the cause was brought before the court at Versailles, and afterward on appeal before the court at Paris; a judgment, dated July 9, 1858, and a decision, dated May 17,1859, confirming the judgment, granted the claim of Mrs. de Klyn, to whom an indemnity of 10,000 francs was moreover allowed. This cause related to the estate of a person who had died in France and whose property had been taken possession of by the government as property without an owner. The question of jurisdiction was not even raised.
    
      This witness is fully corroborated and supported by M. Groualle. Both, witnesses were cross-examined on bebalf of tbe United States, by an equally distinguished advocate, who made no attempt to explain away or controvert their testimony.
    The Marquis de Chambrun has given am elaborate and exhaustive deposition upon this subject, citing the laws and authorities upon which he relies for his positions.
    This testimony is so direct and explicit, and the requirements in the proviso of the statute are so fully met, that we can present no further argument upon the question without being advised of the objections to be interposed by the Attorney General.
    The books referred to by the Marquis de Ohambrun are in the law library of the Supreme Court, and are included in the stipulation between the counsel for the defendants and. the solicitors for the claimants, which was entered of record in the court, and we offer them in evidence.
    We insist, however, that the French government submits to the jurisdiction of the courts at the suit of a private citizen or alien, not by virtue of any express written law authorizing it, but by virtue of a general principle of law, which renders the government amenable to the same jurisdiction as private citizens, in the absence of any express written law to the contrary.
    
      Mr. Joseph A. Ware (with whom was the Assistant Attorney General), for the defendants :
    Under the proviso in the second section of the Act July 25, 1S68, aliens are permitted to sue the United States in the Court of Claims only where the government of which they are citizens or subjects “accords” to citizens of the United States the “right” to prosecute their claims against such government in its own courts. This “right” must be “accorded” by positive law, decree, or other binding enactment. It is not sufficient that the “ right” may be inferentially drawn from abstract principles or from a collation of statutes and rules of practice.
    It was the intention of Congress, in making that provision, to restrict the “privilege” of suing in the Court of Claims to those aliens whose governments have “ accorded” to American citizens reciprocal “ right.” Where, therefore, in any foreign country, the only tribunals through which the government can be sued are so limited in their jurisdiction of causes of action that it is evident that a substantial failure of justice would be the result of a suit by an American citizen for any possible claim he might set up, even if he could get a standing in court, such a tribunal is not a u court” within the meaning of the statute; for, if there is no jurisdiction to decide a supposed claim, there is no claim in law.
    The word “ court” used in the statute is used in the American sense as belonging to the judiciary, a coordinate and independent branch of the government. The French words “ cotvr” and “ tribunal” are not its equivalent, and such organizations could not have been contemplated by Congress when it used the word “ courts.”
    This being a case under the Acts March 3d, 1883, and July 27ih, 1868, the right of the parties, who are aliens, to sue' in this court must be governed by the construction of the proviso in the second section of the latter act and the proof made under the same. That proviso follows the declaration that alienage shall be a bar to a suit under the acts of 1863 and 1864.
    The question to which we address ourselves therefore is, Does 'the French government u accord” to citizens of the United States the “right” to prosecute claims against said government in its courts ?
    
    The affirmation of this proposition being on the claimants, they have offered several witnesses, and a word as to their character and the character of their testimony may not be out of place. The two depositions of Bosviel and Groualle, coun-sellors at laiv of high standing and long practice in the highest courts of France, are identical, and the very words used are the same. This is not evidence in the American sense, except in cases of experts in patent causes. Such experts are always paid servants of the party on whose part they testify, and contribute more to win or lose the case than counsel.
    Nothing could be more unlike .this task than that of the witnesses above mentioned, and yet nothing could be more like the testimony of a patent expert, who has his regular salary of from $1,000 to $5,000 a year, besides his per diem of $25 during a trial, than the depositions of these two gentlemen.
    It is with no intention of disparaging these witnesses that the above remarks are made. Their mode of thought and reasoning is simply that of tbeir race. A slight acquaintance with the literature, law, philosophy, and history of France will convince any one that the tendency of the French intellect is to deductive instead of inductive reasoning, from general principles to particular results, rather than from known facts to principles.
    The same distinction is observable in the French law. There are but few statutes and published decisions. The authorities most relied on are commentators, who, in a great measure, start with an aphorism or an axiom, aud reach a certain concrete result from the abstract idea. It is not, therefore, surprising that these Parisian lawyers should have rendered their testimony as they did; but that is not testimony, according to the American notion.
    In this connection, we refer to the only attempt on the part of the claimants to make proof by primary evidence on this point. It is in the deposition of the Marquis de Chambrun. The three articles from the Code Civil and the commentary from Demolombe have no reference whatever to the point in question. There is not a solitary word as- to the right of an American citizen to sue the State. The two articles of the Code de Procedure Civile prove just as little, and no more. They simply refer to the mode of serving process.
    The evidence of the Marquis de Chambrun is open to the same objections as apply to the depositions Of MM. Bosviel and Groualle, but it has the advantage of being accompanied by books of reference. The marquis is evidently a prejudiced witness, to the extent, at least, that he deems it due to the honor of his country to show that full and unlimited privileges are “ accorded” to Americans to sue the French government in the French courts} but he conclusively fails to show this.
    Thus the evidence that the French government has “ accorded” to American citizens the “right” to sue that government utterly fails both on oral and record evidence.
    By the word “courts” Congress intended to express the American idea of a court. It did not intend to include every species of tribunal which might exist in any foreign’Tountry. The French words “cows” and Utrib%mauxn cannot be translated into English, and they signify something entirely different from the American word “ court.”
    The learned counsel for the claimants contends that, in framing tbe proviso in the second section of the Act July 27,1868, since the act does not define what particular courts were intended, Congress intended to include all courts and tribunals of every kind in foreign countries. By this proviso Congress unquestionably intended to announce a reciprocity of privileges between the United States and foreign nations. All that came within the province of Congress was to use language that usually conveys to the American mind the idea of a tribunal of justice, and leave the question of the specific application and meaning of the word to. the particular cases in which the question might arise.
    The word “ court,” when used in legislation by a body of American legislators, has a well-defined and unmistakable meaning. A “ court ” signifies a member of the department of the judiciary, which is one of the coordinate branches of the government. In neither England nor France, and especially the latter, is this idea one of the fundamental theories of government.
    Another idea must have had its place in the minds of the men who made that law. It must have been worded with special reference to the Court of Claims, the only tribunal before which the United States government consents to appear at the direct suit of a private individual. The subject-matter of the act was the reclamation of demands against the sovereign, and the reciprocity to be granted to certain foreigners Avas the “privilege” of suing in the Court of Claims. Now, this court, which at that time must necessarily have been in contemplation, is as free and independent as any tribunal on earth. We submit to the court that when Congress passed this law it could have had but little idea how far the tribunals of France, to which an American citizen would be referred to recover from the government, are removed in character and independence from the Court of Claims.
    One other point may be referred to in this connection. The wording of the proviso is peculiar. The act proposes to give the “privilege” of suing in this court in exchange for the “ accorded right ” to sue in foreign courts. Taking the testimony of the claimants at its best in their favor, no “right ” is “ accorded.” All the witnesses state thatthe right is only “ derived from general principles.”
    The word “ claims” is used in the act of 1868 in a practical, not an imaginative, sense, and. means claims that can be prosecuted. If the jurisdiction of a tribunal is so narro w,as to be confined wholly or nearly so to local matters, and exclude all general claims, then such claims are not claims •, for where there is no jurisdiction to liquidate dr decide claims, and no law to pay them, there is no claim in a legal point of view.
    We also most emphatically dissent from another point taken by the counsel for the claimants. He argues that it is of no consequence what sort of claims the government of France may be sued for. His position is plausible enough until.we look a little further into the law. Here we find that the only tribunals which have jurisdiction over claims where the government is interested is the Section du Gontentieux, Gonseil de Prefecture^ with appeal to the Gonseil d’État, and that the jurisdiction of those courts is limited to certain causes of action.
    Reference is made to the case of Mrs. de Klyn. There is no proof but hearsay that there was such a case; but, granting for the sake of argument that there was, it happens that it comes under one of the only two exceptions allowed to the general rule, that where the state is concerned the suit must be in the administrative courts.
    The administrative courts of France are of two kinds — one, the ministers of state, who, in contested cases, act through the (i Section du Gontentieux,” which is a committee selected from the departments ,• the other is the “ Gonseil de Prefecture,” which is a local court in each of the eighty-nine territorial departments of France. From both an appeal lies to the “ Gonseil d'Étatf and the final decree of which has no force nor vitality without the decree of the Emperor or reigning sovereign.
    The functions of the ministers of the cabinet and their judicial powers are almost precisely the same as those of cabinet officers in this country. They are not courts ; they perform simply the duties of accounting officers and heads of bureaus.
    The defendants have made the following points:
    1. The French law is not proved by competent evidence.
    2. It is not proved that the French law u accords” to American citizens the “ right” to sue the state in its own courts.
    3. The intention of Congress in passing the Act July 27, 1868, was to create a reciprocity of rights and privileges between American citizens and subjects or citizens of foreign countries, and there is no such reciprocity between Franco and this country.
    
      4. By the word “ courts ” Congress intended to express tbe American idea of a court. It did not intend to express any species of tribunal which might exist in any foreign country.
    5. The word “claims” is used in the act in a practical, not an imaginative, sense, and means claims that can be prosecuted. If the jurisdiction of a tribunal is so narrow as to be confined wholly, or nearly so, to local matters, and exclude all general claims, then such claims are not claims.
    6. The case of Mrs. de Klyn, referred to in the testimony of MM. Bosviel and Groualle, is apochryphál. It is not proved by either primary or secondary evidence.
    7. The administrative courts of France are of two kinds— one, the ministers of state, who, in contested cases, act through the u Section du Gontentieux,” which is a committee selected from the departments; the other, the u Gonseil de Préfeetwre” which is a local court in each of the eighty-nine territorial departments of France. From both appeals lie to the “ Gonseil d’JGtat,” the final decree^ of which has no force nor vitality without the decree of the Emperor or the reigning sovereign.
    8. Suits against the government of France must be brought in the form of application for damages before a cabinet minister or before the u Gonseil de Préfecture,” with appeal to the “ Gonseil d’JÜtat. The law gives the Emperor an unqualified veto on the decrees of three of these so-called courts.
    9. The functions of the ministers are almost precisely the same as those of cabinet officers in this country; but they are under the control of the Emperor. The decrees must be signed by him.
    10. The “ Gonseil de Prefecture” is simply a local court, and has no jurisdiction except over local matters.
    11. Finally, the evidence of the claimants being all secondary, and therefore incompetent, or, if admitted, proving, so far as it goes, the negative of the propositions that they must establish, judgment should be rendered for the defendants.
   Milligan, J.-

delivered the opinion of the court:

The plaintiffs in this action claim to be citizens of the empire of France, and that in the spring of the year prior to the breaking out of the late rebellion in the United States they were the lawful owners of three hundred and sixty-six hogsheads of tobacco, wbicb were stored in the- city of Richmond, Virginia, and which remained there until the capture of said city by the United States military forces, in April, 1865. Soon after the fall of Richmond, as the claimants allege, the tobacco was seized by the agents of the United States Treasury Department, who claimed the same as property captured jure belli.

The claimants further allege that, as soon as the judicial tribunals of the State of Virginia were reestablished, they commenced legal proceedings in the court of hustings, of the city of Richmond, to recover the possession of said tobacco, and to restrain the agents of the United States from further interfering with it.

It is further charged in the petition that, while said actions were pending and undetermined,.the claimants stipulated with the agents of the United States Treasury Department, acting under the authority, approval, and direction of the Secretary of the Treasury, by which it was agreed, for the protection of the rights of both parties, that said tobacco should be sold and the proceeds converted into bonds of the United States, and the bonds deposited in the First National Bank in the city of Washington, District of Columbia; that the suits then pending in the court of hustings should be dismissed and the claim of the petitioners and of the United States to the possession of the tobacco, or its proceeds, should be decided by this court.

In conformity to the written agreement of the parties, entered into on the 27th day of May, 1867, and approved by the Secretary of the Treasury, this suit was instituted under the third section of the Act 12th March, 1863; and the court finds the ultimate facts to be as hereinafter set forth, which are more at large drawn out and filed with the record:

1. The claimants are aliens — subjects and residents of the empire of France.

2. They were the lawful owners of three hundred and sixty-sis hogsheads of tobacco, which were purchased prior to the war, and stored in -the city of Richmond, Virginia, where they remained until after the occupation of that city by the national military forces, when they were seized by authority of the United States, and since claimed by them as captured property.

3.- On the. 27th of May, 1867, the following agreement was entered into by the district attorney for Virginia, acting for the United States, and tbe attorneys of tbe claimants, wbicb was approved by tbe Secretary of tbe Treasury, viz : ■

“ Whereas there are stored in Anderson’s warehouse, in tbe city of Richmond, and State of "Virginia, about two hundred and fifty-three hogsheads of leaf tobacco, and in Myer’s warehouse, in said city and State, about one hundred and thirteen hogsheads of leaf tobacco, all of which are claimed by the firm of De Rothschild Brothers, of Paris, in the empire of France, to be their property; and whereas said tobacco is claimed by the United States of America as captured and abandoned property; and whereas it has been agreed between said claimants that their respective claims to the tobacco aforesaid, and all claims connected or. arising therefrom, shall be decided by the judgment or decree of the United States Court of Claims, in proceedings to be hereafter instituted in said court; and whereas the tobacco aforesaid is liable to loss and injury by being kept until such judgment or decree can be had, it is now therefore agreed by the said claimants that William W. Crump and John S. Loomis, of the city of Richmond, in the State of Virginia, are hereby constituted commissioners and agents, with the following powers and duties, to wit: They shall proceed forthwith to have all of the said tobacco resampled and reweighed; they shall give public notice, by publication in two newspapers in the city of Richmond, one in the city of Baltimore, and one in .the city of New York, of a time and place of sale, said notice to be published for at least two weeks, and shall at such time and place sell said tobacco by public auction for cash. They shall out of the proceeds pay all necessary and proper expenses and costs of such sale, including a commission of five per centum for themselves; they shall pay such charges for storage, insurance, and inspection as they shall find on rigid examination to be due on said tobacco, including all necessary expenses thereon paid by said Loomis heretofore, and the balance remaining they shall invest in bonds of the United States, which shall be delivered and paid over to the party" entitled to the same by the judgment or decree of the said Court of Claims, and which said bonds, until said judgment or decree shall be rendered, shall be deposited in the First National Bank of Washington, District of Columbia. But if, before any judgment or decree be rendered by the said Court of Claims, the claim of De Rothschild Brothers to said tobacco be admitted by the Treasury Department of the United States, then and in such event the said bonds shall be delivered and paid to the said De Bothschild Brothers; and whereas there are now pending in the court of hustings for the said city of Bichmond an action of detinue against B. H. Dibrell, an action of detinue against W. W. Weisiger, a suit in chancery against B. H. Dibrell and John S. Loomis, and a suit in chancery against W. W. Weisiger and John S. Loomis, in all of which the firm of De Bothschild Brothers are plaintiffs, and all of which are brought with the object of recovering said tobacco, it is now agreed that each of said four suits be dismissed. Agreed.
“In testimony of all which, this agreement is signed in triplicate on the part of the United States by L. IT. Chandler, district attorney of the United States, and on the part of De Bothschild Brothers by Ould & Carrington and Wm. W. Crump, their attorneys, this twenty-seventh day of May, 1867.'
“L. H. OHANDLEB^
United States District Attorney for Yirginia.
“DE BOTHSCHILD BEOS.,
“ By OULD & CABE1NGTON,
“ WM. W. CBUMP, ■
Their Attorneys.
“W. E. C. Approved: ■ H. McCULLOCH,
Secretary of the Treasury.”

4. Pursuant to this agreement the several actions pending in the courts of Bichmond were dismissed and the tobacco sold. “ The gross proceeds of the sales,” (as stated by the witness Belmont,) “as reported, were $64,471 08; from which were deducted $4,000 for storage and cooperage, and $3,000 for commissions, leaving the net sum of about $56,800,” the proceeds of which are now in bank under the aforesaid agreement.

5. We also find, as a matter of fact, that the claimants neither by themselves as individuals, nor as a firm through their banking house in Paris, or elsewhere, gave aid or comfort to the late rebellion in the United States, or to persons engaged therein throughout the war.

6. We further find, as an ultimate fact, that the government of France accords to citizens of- the United States the right to prosecute claims in its courts against the government, as fully and substantially as the right is accorded to citizens of the United States to prosecute claims against their government.

On these facts, as enlarged and set forth more in detail in the regular findings of the court, no question has been raised in the argument of counsel against the claimants’ right to recover, except that which grows out of the provisions .of the second section of the Act 21th July, 1868.

The claimants are aliens, subjects of the empire of France, and need not, therefore, as this court has repeatedly held, prove affirmatively that they did not during the rebellion consistently adhere to the United States, as provided in other cases by the third section of the Act 25th June, 1868. It is enough, if an alien shows himself otherwise entitled to sue in this court, that he prove to the satisfaction of the court that he has observed a strictly neutral course throughout the war, and given no aid or comfort to the rebellion.

In this case the claimants bring themselves strictly within the rule, and no objection on this ground is made in the argument, or can be successfully maintained to'their right to sustain this action.

The ownership of the tobacco, and its capture by the military forces of the United States, is not challenged, notwithstanding the latter is only implied from the record, and the recitals in the written argument of the parties of the 27th of May, 1867, which has the approval of the Secretary of the Treasury.

.The right of the government to the property being rested on the ground that it was captured, and the proceeds of the sales of the tobacco having been, with the sanction of the Secretary of the Treasury, converted into government bonds, and those bonds placed in the First National Bank, in this city, to await the decision of this court, under the written agreement of the parties, we feel bound to take cognizance of the case, and deal with it as if the tobacco had been regularly sold by the Treasury agents, and the proceeds covered into the Treasury.

Treating the case in this light, there is no obstacle in the way of the claimants’ right to recover, unless they are barred from prosecuting their suit by the second section of the Act 21th July, 1868.

This provision of the statute is a flat bar to the claimants’ right of action in this court, unless they have brought themselves within the provisions of the proviso in the second section, which is in the words following:

££ That this section shall not be construed so as to deprive 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, of the privilege of prosecuting claims against the United States in the Court of Claims, as now provided by law.”

The section of the statute in which this proviso is incorporated was evidently intended by the legislature to restrict the right of aliens to sue the government of the United States to those whose home governments accord to citizens of the United States a reciprocal right of prosecuting claims against their governments and in their courts. The words uits courts,” employed in the proviso, cannot be held to limit the right of action in a foreign government in a court organized in such government in all respects similar to this court. The requirements of the statute will be complied with if a citizen of the United States have the legal right, according to the forms of procedure( in such government, to prosecute in its courts to judgment against the government a claim which, if the case arose under this government, he could, under the same circumstances, prosecute to judgment against the United States.

The, claim presented in this record is for personal property, tobacco, purchased by the claimants in this country, through their agents, before the war, and placed on storage in Richmond, Yirginia, where it remained until near the close of the war, when it was captured by the United States military forces. It cannot be doubted, under the circumstances of this case, had the tobacco belonged to a citizen of the United States who had consistently adhered to the United States, and given no aid or comfort to the rebellion, that he could, under the provisions of the uAbcmdoned or captured property acts,” have come into this court, and, under proper averments in his petition, obtained a judgment for the net proceeds covered into the Treasury.

. The claimants, standing in the attitude of foreigners, who have strictly observed their neutrality, and given no aid or comfort to the rebellion, can, Avith equal right, if they have brought themselves within the provisions of the proviso here-inbefore quoted, maintain this action and prosecute it to judgment.

And this brings us to the consideration of the French law, as proven in this case. It appears in the facts found by the court that, by the written laws and precedents of France, a subject has tbe right to sue the French government for real and personal property detained by that government; and that the rights of American citizens to sue the French government for real estate and personal property detained by it are exactly the same as those enjoyed by French citizens, subject only to giving security — judicatum solvi.

' The mode of procedure in cases of this kind, as well also as in cases arising out of contract with or supplies furnished to the French government, are all specifically stated by the learned witnesses who quote the law, and show the tribunals on which, in each class of cases, the suit should be instituted, and each tribunal is declared to be strictly judicial and complete within its jurisdiction.

It is objected, however, by the defendants’ counsel, that neither the written law as set out in the record, nor the proof of its existence, is sufficient to authorize this court to receive and recognize the French law as interpreted by the learned experts examined in the case.

The rule of law in respect to the proof of foreign law is too well and firmly settled by the Supreme Court of the United States in the case of Ennis v. Smith et al., (14 How., p. 401,) and the authorities there cited, now to be shaken. See, also, 1 G-reenleaf Ev., sec. 488.

In harmony with this case, Judge Story, in his Conflict of Laws, section 642, says: “But foreign unwritten laws, customs, and usages may be proved, and indeed must ordinarily be proved, by parol evidence. The usual course is- to make such proof by the testimony of competent witnesses, instructed in the laws, customs, and usages, under oath.”

The Gode Napoleon, and the Code Civil, from which citations are made in the testimony, we hold to be sufficiently authenticated, under the authority in the Ennis case, by virtue of the authorized reciprocal interchange of statutes, &c., between this government and the government of France. But these citations are claimed to be somewhat equivocal, and capable of different constructions as to the rights conferred under them; and if so, in such a case we are authorized, by the decision in Ennis’s case, to admit the parol testimony of competent witnesses instructed in the laws, customs, and usages of such foreign government as to the interpretation of and practice under such laws. We can go to no higher authority, and, from the necessity of tbe case, are constrained in snclr case to accept tbeir interpretation.

In this case these learned witnesses declare in terms, that the right of an American.citizen to sue the French government rests on the “ written lato and precedents,” which they set out and assert in practice authorize a citizen of the United States to sue the French government for real estate or personal property detained by it, as well also as in matters of contract with or supplies furnished to that government.

We feel compelled, therefore, to hold that the claimants have brought themselves within the provisions of the second section of the Act 21th July, 1868, and are entitled to maintain this action and to recover the balance of said fund after deducting the necessary expenses, as provided by the agreement of the parties, dated the 27th of May, 1867, and the balance, as therein provided, remaining in bank, shall be delivered and paid over to the claimants.  