
    THE SHIP CONCORD. ELIZABETH R. BLIGHT, Administratrix, v. THE UNITED STATES. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. THE SAME. THE INSURANCE COMPANY OF NORTH AMERICA v. THE SAME. FRANCIS A. LEWIS, Administrator, v. THE SAME. RICHARD C. McMURTRIE, Administrator, v. THE SAME. ARTHINGTON GILPIN, Administrator, v. THE SAME. RUSSELL THAYER and MANUEL E. GRIFFITH, Administrators, v. THE SAME. FRANCIS R. PEMBERTON, Administrator, v. THE SAME. ISAAC S. SMYTH, Administrator, v. THE SAME. HENRY PRATT McKEAN, Executor, v. THE SAME. ROBERT W. SMITH, Administrator, v. THE SAME. WILLIAM RUMFORD HOWELL, Administrator, v. THE SAME. THE PENNSYLVANIA COMPANY FOR INSURANCE ON LIVES, Administrator, v. THE SAME. HENRY PETTIT, Administrator, v. THE SAME. HENRY PETTIT, Administrator, v. THE SAME. GEORGE W. GUTHRIE, Administrator, v. THE SAME. JAMES S. COX, Administrator, v. THE SAME. FRANCIS BROOKE-WALN, Administrator, v. THE SAME SAMUEL BELL, Administrator, v. THE SAME. ATWOOD SMITH, Administrator, v. THE SAME. J. BAYARD HENRY, Administrator, v. THE SAME. CRAIG D. RITCHIE, Administrator, v. THE SAME. CRAWFORD DAWES HENNING, Administrator, v. THE SAME. GEORGE HARRISON FISHER, Administrator, v. THE SAME. ROBERT OLDDEN, Administrator, v. THE SAME. CHARLES PRAGER, Administrator, v. THE SAME. W. W. VASSE, Administrator, v. THE SAME. J. BAYARD HENRY, Administrator, v. THE SAME. JOHN C. WILLIAMS, Administrator, v. THE SAME. USELMA C. SMITH, Administrator, v. THE SAMED. FITZHUGH SAVAGE, Administrator, v. THE SAME. EPHRAIM R. RIDGWAY, Administrator, v. THE SAME. HARRY G. CLAY, Administrator, v. THE SAME. HENRY LISLE WALN, Administrator, v. THE SAME. RICHARD DELAFIELD, Administrator, v. THE SAME. JULIA BATTERSBY, Administratrix, v. THE SAME. BENJAMIN M. HARTSHORNE ET AL., Executors, v. THE SAME. LOUISA J. SEBOR, Administratrix, v. THE SAME.
    
      [French Spoliations 1589, 490, 507, 1587, 2556, 5361, 4037, 600.
    Decided April 30, 1900.]
    
      On the Proofs.
    
    The ship Concord, on a voyage from Canton to Philadelphia, is seized February 6, 1799, by a French privateer and carried into the Isle of France, where the vessel and cargo are “confiscated,” on the ground that the Governor-General of the. Isle of France has proclaimed that “France and the United States are in a state of hostilities from the month of July, 1798, and that tribunals are required to decree the confiscation of all Amencan vessels brought into this port with the cargoes on board.”
    
    I.At various times between 1793 and 1800 there was much that looked like war between France and the United States, but the United States never ceased to hold France pecuniarily responsible for the acts of her cruisers and privateers, and France never denied her responsibility for unjustifiable seizures and condemnations. A defense which France could no't now set up the United States can not. Where France claimed no exemption the United States can claim none for her, and where they can claim none for her they can set up none for themselves. Liability is determined by the liability of France.
    II.Between 1793 and 1800 the assertion in French courts of belligerent rights was in remote places. The tribunals in the immediate presence of the French Government held of the Act 9th July, 1798 (Stat. L., 578), that “it does not belong to the tribunals to take notice of any step that a foreign power may take as constituting a state of war between France and itself.”
    
    III.Under the French spoliation act an indebtedness on the part of original claimants to the United States is not strictly a set-off, as no judgment can be rendered in these cases; but it is an equity which Congress may well consider, inasmuch as the relief to be afforded is a matter of conscience and equity.
    
      The Reporters' statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court.
    I. Tbe ship Concord, Jobn Thompson, master, sailed on or about November 28, 1798, from Canton, China, on a commercial voyage bound to Philadelphia, laden with a cargo of Chinese goods, owned as hereinafter set forth. While peacefully pursuing her voyage the Concord was seized on the high seas on or about the 6th day of February, 1799, by the French privateer La Prudente and carried into the Isle of France, where said vessel and cargo were subsequently confiscated by tbe Commercial Tribunal of Land and Sea, and thereby became a total loss to the owners.
    The grounds of confiscation are set forth in the decree as follows:
    “Translation from the decree of the Commercial Tribunal of Land and Sea of the Isle of France, of the fourth Messidor, 7th year of the French Republic one and indivisible, confiscating the American ship Concord, captured by the Prudente frigate.
    “On mature deliberation—
    “Considering that it results from the procés verbal of the capture of the Concord by the Prudente frigate, on the eighteenth Pluvoise, seventh year, from the information by the justice of peace of this canton, and from the interrogatories of Messrs. John Thompson and Peter Dobell, the captain and supercargo of the said vessel, and also by those of the mate and eight seamen of the said vessel, that the said ship Concord sailed under American flag and an American passport, and that the captain, officers, and crew were all subjects of that nation;
    “Considering that in like manner results from the bills of lading, invoices, and other documents found on board, that the said vessel sailed from Philadelphia, bound to Canton, whence she was on her return when she was captured; that she, as well as part of her cargo, belonged to Mr. Peter Blight, an American subject, residing at Philadelphia, and that the other part of said cargo likewise belonged to divers others, subjects of that nation, all residing at the said city of Philad’a:
    “Considering that it results from the proclamation published by the citizen Maturtie, governor-general of the Isle of France and of la B&wiion, on the fifth of Messidor, seventh year, that France and the United States are in a state of hostilities from the ninth of July, one thousand seven hundred and ninety-eight, and that the tribunals are required to decree the confiscation of all American vessels which have been or shall be brought into this port with the cargoes on board:
    “The tribunal, in conformity to the conditions of the public ministry, declared good and valid the capture made by the Prudent frigate of the American ship Concord, on the eighteenth Pluvoise, seventh year, and therefore has confiscated, and by this present does confiscate, the said ship and the whole of her cargo for the benefit of the captors, viz, the owners, officers, and crew of the said frigate, and ordered that the whole be delivered up to them, &c.”
    
      II. Tbe Concord was a duly registered vessel of tbe United States of 303f-f tons burthen, was built in Philadelphia in the year 1193, and was owned solely by Peter Blight, a citizen of the United States and a resident of Philadelphia.
    III. The cargo of the Concord consisted of china, fans, nan-keens, satins, sugar, tea, and other miscellaneous Chinese goods, as shown by the invoices, and was 'owned by sundry citizens of the United States residing in Philadelphia, but no claim has been filed on behalf of any of the owners of the cargo, with the exception of the aforesaid Peter Blight, the owner of the vessel.
    IV. The losses by reason of the capture and confiscation of the Concord, so far as claims have been filed in this court, were as follows:
    The value of the vessel was. $12,140.00
    The value of the cargo of Peter Blight. 78, 916. 72
    The value of the cargo, so far as appears, of other owners who have not appeared. 13,510.79
    The freight earnings for the voyage... 10,215.00
    Premiums of insurance paid by Peter Blight. 9,150.00
    Premiums of insurance paid by other owners who have not appeared... 5,401.16
    Amounting in all to... 129,333.67
    SPECIAL FINDINGS RELATING TO THE SEVERAL CASES.
    Y. Case No. 1589. Peter Blight was the sole owner of the vessel and a part of the cargo. He insured his portion of the cargo in the office of the Insurance Company of Pennsylvania in the sum of §>20,000, in the office of the Insurance Company of North America in the sum of $20,000, and in the office of Shoemaker & Berrett in the sum of $33,200, making in all the sum of $73,200, paying therefor premiums amounting to the sum of $9,150.
    Thereafter the said insurance companies paid to said Peter Blight the sum of $71,736 as and for’a total loss thereon, the same being the face value of the policies less the customary abatement of 2 per cent.
    It does not appear that there was any insurance on said vessel.
    
      Iiis losses were as follows:
    The value of the vessel. $12,140. 00
    The freight earnings for the voyage. 10,215.00
    The value of the cargo owned by him.. 78,916. 72
    Premiums of insurance paid.'. 9,150. 00
    Total. 110,421. 72
    Less insurance receive’d...-. 71, 736. 00
    Leaving net loss of Peter Blight. 38,686. 72
    YI. Case No. 490. The Insurance Company of the State of Pennsylvania insured said Peter Blight on his portion of the cargo in the sum of $20,000; it also insured Paul Beck, jr., in the sum of $3,425; and James Smith, jr., in the sum of $2,925, other owners of the cargo.
    Thereafter said insurance company paid to said Peter Blight the sum of $19,600; to Paul Beck, jr., $3,356.50; and to James Smith, jr., the sum of $2,866.50, being the amount of the policies less the customary abatement of 2 per cent.
    The losses sustained by the Insurance Company of the State of Pennsylvania were as follows:
    Amount of insurance paid Peter Blight. $19, 600. 00
    Amount of insurance paid Paul Beck, jr. 3,356. 50
    Amount of insurance paid James Smith, jr. 2,866.50
    Amounting in all to. 25,823.00-
    VII. Case- No. 507. The Insurance Company of North America insured said Peter Blight on his portion of the cargo in the sum of $20,0.00 ; it also insured Edward Pennington in the sum of $8,000; and Robert Correy in the sum of $1,200, other owners of the cargo.
    Thereafter said insurance company paid to said Peter Blight the sum of $19,600 ; Edward Pennington, $6,731.74; and to Robert Correy the sum of $1,176, as and for a total loss thereon.
    The losses sustained by the Insurance Company of North America were as follows :
    Amount of insurance paid Peter Blight.$19, 600.00
    Edward Pennington.... 6,731.74
    Amount of insurance paid Robert Correy.-. 1,176.00
    Amount in all to__ 27,507.74
    
      VIII. Case No. 1587. John Miller, William McMurtrie, Edward Dunant, and 32 others, some of whom have not appeared in this case, as underwriters in the office of Shoemaker & Berrett, insured Peter Blight on his portion of the cargo in the sum of $33,200.
    Thereafter the said Shoemaker & Berrett paid to said Peter Blight the sum of $32,536, as and for a total loss for said underwriters, being the face value thereof less the customary-abatement of 2 per cent. .
    The underwriters on said policy who have appeared in this case by their legal representatives, and the loss sustained by each, are as follows:
    John Miller, jr.. §980. 00
    'William McMurtrie. 588.00
    Edward Dunant. 490. 00
    Joshua Gilpin. 490. 00
    Nicklin & Griffith. 980. 00
    Thomas and John Clifford. 784.00
    John Savage. 980.00
    Ambrose Vasse. 980.00
    Pettit & Bayard... 784.00
    Baker & Comegys. 784. 00
    Pratt & Kintzing. 980. CO
    Robert Smith & Co. 980. 00
    Samuel Howell.-. 980.00
    Willings & Francis.-... 1,960.00
    Jones & Clarke... 784.00
    Summerl & Brown.. ... 980.00
    Jacob Ridgway....... 588. 00
    Pragers & Co. 980.00
    Miller & Murray... 980. CO
    James'Cox... 784.00
    Jesse Wain. 980. CO
    John G. Wacksmuth. 980. 00
    Gurney & Smith.. 980. 00
    Rundle & Leech. 980.00
    John Leamy. 784. 00
    James Crawford & Co. 980.00
    Charles Pettit. 588.00
    John Oldden. 980. 00
    James Oldden... 980. 00
    Thomas Murgatroyd underwrote on said policy in the said office in the sum of $1,000 and paid $980.
    
      In July, 1802, tbe said Murgatroyd became bankrupt, and Jacob S. Wain became Ms assignee. The surviving executor of said Jacob S. Wain, to wit, Ed. Wain, has filed bis petition for this loss.
    . No person claiming to represent the next of kin of said Thomas Murgatroyd has appeared.
    The firm of Philips, Cramond & Co. was composed of William Cramond (a citizen of the United States), Thomas Philips, Nathaniel Philips, John Philips, John Philips, jr., and George Philips, subjects of Great Britain. Said Cramond resided in Philadelphia, where the business of the firm was carried on at the time this claim arose, and he continued to reside there until October 25, 1843, when he died. The other partners resided in Manchester, England. In 1801 the firm dissolved partnership. The partners residing in England were entitled to all outstanding firm credits.
    IX. Case 2556. John Delafield, an insurance broker, [on behalf of himself and other underwriters in his office, insured Peter Dobell, the supercai’go of said vessl, on his interest in the cargo in the sum of $10,000, at a premium of 10 per cent, the amount underwritten by said Delafield on his own account being $1,000.
    Thereafter, on February 4,1800, the said underwriters paid to said Dobell 85.31 per cent of the amounts underwritten by them, respectively, as and for a total loss on said policy.
    The loss sustained by said Delafield was as follows:
    John Delafield. §853.10
    X. Case 5361. John B. Desdoity, as underwriter in the office of John Delafield, insured said Peter Dobell on said policy of $10,000 to the amount of $500.
    Thereafter, on February 4,1800, said Desdoity paid to said Dobell 85.31 per cent of the amount underwritten by him as and for a total loss thereon.
    The loss sustained by said Desdoity was as follows:
    John B. Desdoity.. §426.55
    XI. Case 4037. Rhinelander, Hartshorne & Co., underwriters in the office of John Delafield, insured George Emlen on the cargo of the Concord in the sum of $2,000 at a premium of 15 per cent.
    
      Thereafter said underwriters paid to said Emlen the sum of SI,842, and the loss sustained by them was as follows:
    Bhinelander, Hartshorne & Co. §1,842
    XII. Case No. 600. Jacob Sebor and others who have not appeared in this case, as underwriters in the office of John Delafield, insured George Emlen on the cargo of said vessel in the sum of §10,000 at a premium of 10 per cent.
    Thereafter, on January 4,1800, the said underwriter, Jacob Sebor, paid to the said George Emlen 98 per cent of the amounts underwritten by them on said policy.
    The loss sustained by said underwriter, Jacob Sebor, was as follows:
    Jacob Sebor... $980
    XIII. The claimants herein have produced letters of administration upon the estates of the parties for whom they appear, and (with the exception of Julia Battersbjr, admin-istratrix of John B. Desdoity) have otherwise proved to the satisfaction of the court that the persons for whose estates they have filed claims are in fact the same persons who suffered loss by the seizure and condemnation of the ship Concord, as set forth in the preceding findings.
    Said claims were not embraced in the convention between the United States and the Republic of France concluded on the 30th of April, 1803, and were not claims growing out of the acts of France allowed and paid in whole or in part under the provisions of the treaty between the United States and Spain, concluded on the 22d of February, 1819, and were not allowed in whole or in part under the provisions of the treaty between the United States and France of the 4th of July, 1831.
    The claimants in their representative capacity are the owners of said claims, which have never been assigned except as aforesaid, nor does it appear that any of said claims are owned by an insurance company, except as hereinbefore stated.
    The court decided as conclusions of law that said seizure and confiscation were illegal, and the owners and insurers had valid claims of indemnity therefor upon the French Government prior to the ratification of the convention between the United States and the French Republic concluded on the 30th dajr of September, 1800; that said claims were 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 following-named claimants are entitled to the amounts set forth, respectively, from the United States:
    Elizabeth E. Blight, administratrix of Peter Blight.$38, 685. 72
    The Insurance Company of the State of Pennsylvania. 25,823.00
    The president and directors of the Insurance Company of
    North America. 27,507. 74
    Francis A. Lewis, administrator of John Miller, jr. 980. 00
    Eichard C. McMurtrie, administrator of William McMurtrie.. 588. 00
    Arthington Gilpin, administrator of Joshua Gilpin. 490.00
    Eussell Thayer and Manual E. Griffith, administrators of Eobert Egglesfield Griffith, surviving partner of Mcklin &
    Griffith.■_. 980.00
    Francis E. Pemberton, administrator of John Clifford, surviving partner of Thomas and John Clifford. 784.00
    Isaac S. Smyth, administrator of Jacob Baker, surviving partner of Baker & Comegys. 784.00
    Henry Pratt McICean, surviving executor of Henry Pratt, surviving partner of Pratt & Kintzing. 980. 00
    Eobert W. Smith, administrator of Eobert Smith, surviving partner of Eobert Smith & Co.1. 980.00
    William Kumford Howell, administrator of Samuel Howell... 980.00
    The Pennsylvania Company for Insurance, administrator of Thomas M. Willing, surviving partner of Willing & Francis. 1,960.00 Henry Pettit, administrator of Andrew Pettit, surviving partner of Pettit & Bayard. 784.00
    Henry Pettit, administrator of Charles Pettit. 588.00
    George W. Guthrie, administrator of Alexander Murray, surviving partner of Miller & Murray .•. 980. 00
    James S. Cox, administrator of James S. Cox. 784. 00
    Francis Brooke-Waln, administrator of Jesse Wain. 980. 00
    Samuel Bell, administrator of John G. Wacksmuth. 980.00
    Atwood Smith, administrator of Daniel Smith, surviving partner of Gurney & Smith. 980.00
    J. Bayard Henry, administrator of John Leamy. 784.00
    Craig D. Eitchie, administrator of Joseph Summerl, surviving partner of Summerl & Brown. 980. 00
    Crawford Dawes Henning, administrator of James Crawford, surviving partner of James Crawford & Co. 980.00
    George Harrison Fisher, administrator of Jacob Eidgway_ 588.00
    Eobert Oldden, administrator of John Oldden. 980.00
    Charles Prager, administrator of Mark Prager, jr., surviving partner of Pragers & Co. 980.00
    W. W. Yasse, surviving administrator of Ambrose Vasse. 980.00
    
      J. Bayard Henry, administrator of George Bundle and Thomas
    Leech, composing firm of Bundle & Leech. §980.00
    John 0. Williams, administrator of Edward Dunant. 490.00
    Uselma G. Smith, administrator of William Jones, surviving partner of Jones & Clarke. 784.00
    D. Eitzhugh Savage, administrator of John Savage. 980.00
    Ephraim B. Bidgway, administrator of James Oldden. 980.00
    Bichard Delafield, administrator of John Delafield. 853.10
    Julia Battersby, administratrix of John B. Desdoity. 426.55
    Benjamin M. Hartshorne and Charles N. Black, executors of Bichard Hartshorne, surviving partner of Bhinelander &
    Hartshorne. 1, 842.00
    Louisa J. Sebor, administratrix of Jacob Sebor. 980.00
    . Amounting to. 122,186.11
    The court also decided as a conclusion of law that the claimant, Henry Lisle Wain, administrator of Jacob- S. Wain, assignee in bankruptcy of Thomas Murgatroyd, is not entitled to an award under the decision in the case of the Concord (27 C. Cls. R., p. 142).
    Also, that Harry G. Clay, administrator of .William Cra-mond, is not entitled to an award, he in effect representing subjects of Great Britain.
    The court further reported to Congress:
    That the defendants have produced in evidence a customhouse bond, bearing date August 31, 1811, to secure the payment of duties on imports, given to the United States by Peter Blight. The court finds that the sum of $1,752.32 became due upon said bond, and no evideuce has been produced to establish the payment thereof.
    
      Mr. James Lowndes, Mr. W. T. S. Curtis, and Mr. Jeremiah Wilson for the claimants.
    
      Mr. Lawrence Lewis, Mr. Leonard My.ers, Mr. William E. Earle, and Messrs. Evarts, Choate de Beaman were on briefs.
    
      Mr. Charles W. Bussell (with whom was Mr. Assistcmt Attorney- General Pradt) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

On the 28th of November, 1798; the American ship Concord sailed from Canton bound for Philadelphia.

On the 6th of February, 1799, she was stopped on the high seas by the French frigate La-Prudente. The captain of the frigate found nothing in the ship’s papers to justify detention, and accordingly allowed her to proceed. But upon further reflection, after an interval of several hours, he reconsidered his determination and resolved to take the responsibility of seizing the Concord and of sending her in to the Isle of France for a further examination bjr the authorities.

The story of her seizure is best told by her captain in his protest:

“She proved to be the French frigate or corsair La Prudente, Cap. Joliffi, from the Isle of France, on a cruise, who, after strictly examining my ship’s papers, bills of lading, &c., ordered his interpreter to inform me it was not in his power to detain me, as my papers showed the ship and cargo to be neutral property; at same time returned me my papers with orders to proceed on my voyage. Accordingly 1 returned on board the Concord; at 2 p. m. made sail' on our course, the frigate doing the same, but standing about two points more north; at half past 3 p. m. hoisted colors on board the frigate; we hoisted ours also; the frigate came up; the captain ordered us to heave to until he sent his boat on board, which came with three officers, and orders for me or the supercargo to repair on board the Prudente, with all letters, papers, invoices, &c., relating to ship or cargo. Accordingly Mr. Dobell, supercargo of the Concord, took the papers and went on board the frigate. Soon after the boat returned for Mr. Dobell’s desk and small box, containing sundry orders, invoices, &c., respecting the outward cargo. The 2d officer and 2d boy were also taken on board with Mr. Dobell, and all detained during the night. At 8 p. m. the frigate hailed and ordered the officers to make sail after her, and steer W. b. N. during the night. At 6 a. m. the frigate’s boat came for me. I went on board. The captain demanded my former bills of lading for outward cargo, for which I went on board the Concord and returned again on board the frigate. After a long and tedious examination of all trivial papers the captain determined to send us to the Isle of France. At 4 p. m. on the eight began to shift crews. Cap. Joliff took my chief mate, seventeen of the Concord’s crew on board the frigate, sent some Frenchmen on board, sealed up all the Concord’s papers, and dispatched us with prize master for the Isle of France, where we arrived on the 10th day of March, as aforesaid.”

On a subsequent day the prize court in the Isle of France rendered a decree “confiscating” the ship and cargo. The decree recites that the ship Concord sailed under the American flag and an American passport; that the captain, officers, and crew were all subjects of that nation, and that her cargo belonged to American subjects residing in Philadelphia. In other words, the Concord was one of the very few of the American vessels whose conduct, ownership, and the character of whose cargo were, in the opinion of French tribunals, each and all absolutely unexceptionable. <

Nevertheless, the tribunal pronounced a decree of confiscation (not condemnation) upon the sole ground that the Governor-General of the Isle of Franco'had on the 23d day of June, 1799, published a proclamation declaring that France and the United States were and had been in a state of hostility from the 9th day of July, 1798, and requiring all tribunals to confiscate all American vessels which had been or should bo brought into French ports, with the cargoes on board.

The distinction between “confiscated” and “condemned” rested on certain French decrees. If a vessel was sailing under a neutral flag, she or her cargo might be condemed for cause; if she were an enemy, she and her cargo would thereby be liable to confiscation. -

It is apparent that some unfortunate American vessel whose master carried a commission under the Act 9th Juiy, 1798 (1 Stat. L., 578), had fallen into the hands of the French governor, and that he had thereupon, without instructions from his own Government, proclaimed war as existing between the two countries. It is a general principle that while a nation is enjoying the advantages of peace she must be held to the obligations of peace and be responsible, among other things, for the acts of her officers and agents, but that when war comes and those responsibilities cease, she, while encountering the pains and penalties of war, may exercise the belligerent right of capture. At various times between 1793 and 1800 there was much which looked like war between the two countries. But notwithstanding the act of the' 9th of July, 1798, and the decision of the Supreme Court in Bass v. Tingy (4 Dall. R., 37), and the historic battle of the Constellation with La Vengeance, wherein each ship nearly destroyed the other and the French frigate came into Curapoa dismasted and sinking, with 50 killed and 110 wounded, it has been held, and it must be held again, that no war existed which released France from bcr international responsibilities, or which authorized her to destroy American commerce. The question has been exhaustively argued and exhaustively examined, and all the information and learning which it is susceptible of receiving-will be found embodied in the opinions in the cases of Gray (21 C. Cls. R.., 340), Cushing (22 id., 1), and the John (22 id., 408). In a few words it may be said that the United States never ceased to hold France pecuniarily responsible for the acts of her cruisers and privateers, and that France never denied her liability for unjustifiable seizures and condemnations. Moreover, France never interposed the defense of belligerent rights, but, on the contrary, again and again reiterated hex-willingness to discharge her treaty and international obligations whenever the United States would discharge theirs. A defense which France could not now and did not then set up, the United States can not set up. Where France claimed no exemption the United States can claim none for her; where they can- claim no exemption for France, they can set up none for themselves. The question of liability to be determined is the liability of France.

Another fact to be considered is that this warfare, such as it was, existed only in what were then remote parts of the earth, the West India Islands, the Straits of Sun da, the Chinese Seas, etc. At the time when the governor of the Isle of France was proclaiming war and confiscating- American vessels for no fault of their own, the Tribunal of Commerce in Bayonne, in the immediate presence of the French Grovernment, was proceeding upon the basis of peace, and administering justice according to the accepted principles of international law, except, of course, where those principles were varied by French decrees. Thus in the case of the ship Victory, Hatton, master (not reported), captured October 6, 1799, while on her voyage from Norfolk to London, the tribunal held that some of the property on board, being English, was subject to capture; that, inasmuch as the captors “could not, while at sea, take out the goods which were enemy’s property found on the ship, they were authorized to bring the ship into a port for its discharge;” that hence there was no reason for decreeing damages to the American ship. But the court then decrees “the surrender to Captain Hatton of the said ship Victory with her rigging, apparel, appurtenances, and dependencies, to be restored to him in the condition she was at the time of the seizure; also that like surrender shall be made to him of the papers and documents relative to said ship, and, finally, the surrender of the portions of the goods which were not British propertj'-.” And the court then proceeds to decree the condemnation of the English property found on the ship, with the proviso “that they, the captors, pa}»- the freight thereon to the said Captain Hatton, stipulated and borne in the bills of lading’ which will be reduced to French monej'' according to French exchange on Hamburg and that of Hamburg on London by persons skilled and upon whom the parties shall agree or, in default of agreeing, by persons named by the court.”

This certainly was all that any neutral could ask.

Again, and at about the same time, in the case of the ship Fame, Bust, master, the same tribunal considered the very point now under consideration, and its decision was all that this Government could demand:

“Considering the point relative to the letter of marque of which the ship was the bearer. That the French Government without doubt is not ignorant of the delivery of like letters by the Government of the United States to the vessels of the said United States nor of the terms in which these letters are conceived. That now and up to the present time it has not been manifested that it regarded this circumstance and the act of Congress of the United States of the month of July, TT98, either as a declaration of war or as hostilities against France, since it has not asked of the legislative body a law declaring the French nation to be in a state of war with the United States of North America. That a state of war can not be established or declared without a law of the legislative body. That it does not belong to the tribunals to take notice of any step that a foreign power may take as constituting a state of war between France and itself.

“That'the condemnation demanded of the said ship Fame and of her cargo, because of the said letter of marque, can not be founded upon any law, and can not and ought not to be pronounced. The said ship besides, not having opposed any resistance, suffered itself to be visited at the summons which was made to it by the said privateer. There is, then, no occasion to accede to the demand of the captors upon this point.”

This case was appealed to the civil tribunal of the department, and thence to the Council of Prizes, which latter tribunal, on the 13th December, .1800, released the vessel and cargo, in accordance with the judgment of the two lower tribunals. (Schooner John, Blackler, master, 22 C. Cls. R., 408.)

The counsel for the United States has argued with great ingenuity and learning that these decress were rendered at the time when the treaty of September 30, 1800, was a matter of negotiation; that the French Government then desired to retain America as a friend and not to drive her over to the enemies of France, who then numbered nearly all of the sov-ereignties of Europe; and that France in effect waived her legal and maritime rights so that she might smooth the way to an adjustment of all differences with the American Government. This might be so held if it. were a defense which the United States could properly set up — if the question of liability were not always the question, “What was the liability of France before the claims were relinquished to her?” It seems undeniable that if this court were an international tribunal and France were an actual defendant in court, no one would think it possible for her to say to-day what she did not say through her own tribunals just one hundred years ago, when the matter was in litigation and the rights of the American owners a matter of contemporaneous adjudication. Accordingly it must be held now, as it has been held before, that there was no war which accorded'to France general belliger-ant rights or which subjected an American vessel to capture and condemnation if she were at the time without fault.

It is to be noted in this case that the Concord was not subject to condemnation or confiscation because of any act or paper of her own. She did not resist search; she did not attempt flight; no objection was raised by the French tribunal to any want of papers or to the character of any paper which she carried. The decree narrates that she had an American passport; but commissions under the act of July 9,1198, were generally styled by the French tribunals letters of marque. She does not appear to have had any armament whatever, and her crew, as far as appears, consisted of only 18 men. The question, therefore, whether the carrying of a commission under the act of July 9, 1798, was evidence of aggressive intent which would render her liable to capture and condemnation is not presented by the evidence in this case.

The counsel for the Government has filed a motion to reopen some of the cases against this vessel so as to enable the defendants to plead an indebtednéss on the part of the original claimants to the United States. Such a cross demand is not strictly a set-off, inasmuch as the court does not render judgments in these cases, but nevertheless it is an equity which Congress may properly consider in cases where the relief to be afforded by- Congress is a matter of conscience and equity. (Ship Parkman, present term.)

All of these motions, with one exception, have been withdrawn or abandoned.

In the case of Peter Blight, No. 1589, it is found that $1,752.32 became due to the United States on a custom-house bond, and there is no evidence to establish payment. Whether this apparent indebtedness of Peter Blight, the original claimant, should be deducted from the award in favor of his administrator is a question resting exclusively in the discretion of Congress, and in regard to it the court reports no conclusion and expresses no opinion.

The order of the court is that the findings and conclusions now filed be reported to Congress, together with a copy of this opinion.  