
    THE SHIP HOPE. RICHARD S. WHITNEY, Administrator, v. THE UNITED STATES. THE SAME v. THE SAME. WILLIAM E. HEBBERD, Executor, v. THE SAME. E. S. DE LYON, Administratrix, v. THE SAME.
    [French Spoliations,
    121, 122, 156, 2262.
    Decided January 25, 1892.]
    
      On the Proofs,
    
    The case of this vessel was presented to the Spanish Commission and rejected upon the merits. It appears that she was taken into San Domingo and condemned hy the “French Tribunal of Provisional Captures.”
    
    I. Where a case of capture and condemnation hy the French was within the jurisdiction of the Spanish Commission and was adjudicated upon the merits, it became res judicata.
    
    H. The French Spoliation Act 1885 (23 Stat. L., p. 283) expressly excludes from jurisdiction such “claims growing out of the acts of France as were allowed and paid, in whole or in part,” under the treaty with Spain 1819. But this does not imply that a case not excluded from jurisdiction, hut once heard hy a competent tribunal and decided upon the merits, shall he readjudicated in this court.
    III. A condemnation by the French tribunal of provisional captures sitting in San Domingo was a condemnation hy a French consul within the territory and jurisdiction of Spain within the intent of the Spanish treaty of 1819; and a claim founded thereon was within thejurisdiction of the Spanish Commission.
    IV. When the United States elected to take indemnity from Spain for illegal French condemnations in Spanish ports, the claims passed out of the forum of diplomatic negotiation, and this nation lost whatever rights of action it might have had against France.
    
      The Reporters’ statement of tbe case.
    The facts relating to the former adjudication by the Spanish commission will be found set forth in the opinion of the court.
    
      Mr. R. 0. Shepherd for the claimant.
    If the evidence of grounds of the decision only to be found in the u remarks of counsel ” is of too doubtful character to be relied upon, there is no positive evidence that the Spanish Commission ever considered or decided the ease upon its merits; and the inference from the word il disallowed,” which means refuse to allow, that the decision was upon grounds not involving the merits, may be as properly drawn as the contrary. If it fails to appear affirmatively that the case was heard and decided upon its merits, it is not res judicata.
    
    The case is not res judicata, because the parties are not the same. In the case before the Spanish Commission the real party defendant was Spain. The United States was only the bargained proxy for the purpose of trial and payment. . But whether it was Spain or the United States becomes immterial, as neither is a party defendant in this case.
    It nowhere appears in the act of Congress of 1885 that the United States intends to become or can be made a party defendant to a claim thereby permitted to be tried in this court. The contrary appears by the provisions making the findings and reports of the court only advisory to Congress, not conclusive upon it, and that nothing in the act shall be construed as committing the United States to the payment of such claims. Only the legal officers of the United States are in the case as amici curiae to prevent a case having but one party from being tried ex parte.
    
    
      Bes judicata is not a defense to this case, because the right of retrial is expressly granted by the French spoliation act of Congress of 1885.
    (1) That it is granted in the very broad terms of the first part of section 1 of that act will hardly be questioned. The only limitations there stated are that the original claimant was a citizen of the United States, and had, prior to July 31, 1801, a valid claim for any of the causes there specified. This case and the parties conform to all those requirements.
    The very fact that the proviso which follows excludes claims against which the defenses of res judicata and payment would be complete, shows that Congress considered that, without the proviso, the act would embrace claims that had not only been previously tried and decided, but even paid. It is an accepted rule of interpretation that the exception of a particular thing proves that, in the opinion of the lawgiver, the thing excepted would be within the general clause had the exception not been made.
    
      (2) The main question is, therefore, whether claims disallowed by the Commission under the Spanish treaty of 1819 are excluded by the proviso. It is confidently submitted that they are not thereby excluded.
    The careful phraseology used in the- several dances of the proviso, namely, the wox’d “ embraced,” in the first clause, and the phrase “ allowed and paid in whole or in part ” in the other two clauses, accurately defines the precise claims to be excluded.
    The word “ embraced ” is used with good reason in the first clause, because by article X of the convention between the United States and the French Republic, concluded April 30, 1803, it is provided that the rejection of any claim by the tribunal under that treaty “shall exempt the United States from the payment of it,” but shall not affect it as a claim against France. Therefore no injustice to United States, citizens was done by excluding from this act all claims of that class, whatever their history.
    But in the second clause of the proviso, which alone concerns this case, the only claims selected out for exclusion are such as were “ allowed and paid in whole or in part.” If it had been the intention to exclude claims allowed, upon which no payment had been made, or claims disallowed, it could easily have been expressed by simple changes of the phraseology. The very omission of the necessary words to exclude claims merely allowed or disallowed is quite conclusive of the intention not to exclude such claims. And the mention of one class confines the exclusion to that class only. The maxim “ ex-pressio unius est exolusio alterius ” applies here with emphatic significance.
    Besides, there is abundant good reason for carefully refraining from excluding claims disallowed by the Spanish Commission. In the first place, it was well known to Congress, as it is to this court, that the records of the Spanish Commission fail to show in many cases what were the reasons or grounds of disallowance. Its decisions, as in this very case, are often by the single word “disallowed.” That purported reasons should appear in an argument for a new trial is exceptional. It could not be known by the single word “disallowed” whether the adverse decision was upon the merits of the case or upon technical or jurisdictional grounds 5 and in many cases tbe records do not show, as is not shown in this case except by the memorial for a rehearing, whether any hearing was had or defense pnt in.
    And, in the second place, doubtless many citizens having valid claims for the acts of France, who had anxiously waited twenty-five years for a chance of indemnity, seized upon this first opportunity afforded by the treaty of 1819, and entered precipitately and unadvisedly into the tribunal thereby provided, only to suffer further disappointment by the disallowance of their claims on grounds that may or may not have gone to the real merits. For Congress to faff to provide for retrials of claims disallowed by the Spanish Commission would do unmerited injustice to many citizens.
    It is difficult to see how there can be more than one claim of this class paid only “in part.” If the claims allowed by the Spanish Commission exceeded the total amount of #5,000,000, the limited sum provided by the treaty for the United States to pay upon claims so allowed, there being no provision for the proportionate distribution of a limited amount in the case of such excess, awards would be paid in the order of presentation for payment until the fund was exhausted, leaving at the end enough, perhaps, for a partial payment of the last one presented. The rest would necessarily go entirely unpaid. And in such allowed but unpaid claims is found the reason for the careful omission to exclude claims allowed merely, but not also paid.
    But if there were many claims paid in part only, no greater injustice would occur than has happened in the division of funds collected by the Government, as in the case of the distribution of the amount of the Geneva award. The $5,000,000 provided by the Spanish treaty of 1819 is the estimated limit of the amount of the prospective proceeds of sales of the public lands ceded to the United States by that treaty, or is the supposed value of the claims bargained away by the United States for such land, and so stands like any fund collected by the Government.
    But even if the exclusion of claims paid in part only does much injustice, it furnishes no ground for the inference of an intention to do the other still greater wrong, of excluding claims disallowed by the Spanish Commission.
    
      The manifest intention of the act of 1885 is to open the doors of this court very wide to all citizens whose claims for the described causes accrued within the prescribed date and remain unpaid; and that they should not be refused admittance at the very threshold by res judicata; to the end that all who at this late day shall be able to show to this court, so distinguished for ability and justice, the validity of their claims as they stood prior'to July 31, 1801, unaffected and unprejudiced by all subsequent mistakes of the claimants, their counsel, or any judicial tribunal, shall here obtain a verdict for the just indemnity for their wrongs by France, expectantly waited and prayed for for nearly a century, and, having obtained it, thereafter continue to hope and pray for full fruition by another act of Congress providing for payment.
    
      Mr. Benjamin Wilson and Mr. G. W. Bussell for the defendants.
   Davis, J.,

delivered the opinion of the court:

The case of the Hope was presented to the commission constituted pursuant to the provisions of article 9 of the treaty of 1819 with Spain, and was by that body rejected upon the merits (Spanish Com., vol. 23). It- is now contended by the defendants that the claim is not within our jurisdiction, being res judicata.

The Hope was taken into San Domingo and there condemned by what was entitled in the decree the “French tribunal of provisional captures established at San Domingo, M. Thomas Pons, judge of the provincial tribunal for captures, established at San Domingo.”

As to claims of the class within which falls the case at bar, the commission said:

“As to the claims supposed to be comprehended within the second renunciation of the ninth article of the treaty, the undersigned have to state that the construction given by the commission to that renunciation has not confined it to cases denoted by the mere terms therein used. These would include none other than condemnations by ‘French consuls within the territory and jurisdiction of Spain,’ here introduced as merely descriptive of the persons who for the most part exercised the French prize jurisdiction in foreign states, where it is to be suffered at any time to be exercised, and not as intended to confine the claims here provided, to condemnations by sucli officers only. It- has been rcgafded rather as an example than as a limitation; and therefore the commission has received and allowed many claims founded upon condemnations in the territory of Spain uttered by other French agents than the denominated “ consuls,” believing that the injury designed to be here provided for was that which was produced by the act of Spain in suffering French jurisdiction to be exercised within her territory, no matter by what appellation this jurisdiction might be designated.
“ So, too, the terms ‘ territory and jurisdiction of Spain,’ according to a strict interpretation of them, might possibly be confined to places appertaining to Spain absolutely. But the board has considered itself at liberty to regard these terms as intended to be understood in a different sense; and, construing them as meaning to declare the liability of Spain for all condemnations by French tribunals, suffered to exert authority within the limits of the country subject at that time to her power, the board has not .hesitated to receive and allow all claims for such condemnation uttered in the city of Santo Domingo prior to tlie year 1801, for although by a treaty concluded between France and Spain many years antecedent to this period the Spanish part of the island of Hispaniola was ceded by Spain to France, yet until January, 1801, the possession of this territory was never surrendered to France in pursuance of that treaty; but the Spanish power and authority continued to be exerted there as before.”

It should be noted that the commission rejected claims for loss arising from “captures made by French privateers where the prizes were carried within the territory and jurisdiction of Spain, and although not considered by any tribunal then existing, were, nevertheless, there disposed of by the captors.”

These decisions turned upon the phraseology of paragraph 2 of article 9 of the treaty of 1819 with Spain, which extends to “ all claims on account of prizes made by French privateers and condemned by French consuls within the territory and jurisdiction of Spain.” We agree that San Domingo, when the Hope was there condemned, was within “the territory and jurisdiction of Spain,” and we also agree that the phrase “ French consuls ” should, as stated by the commissioners, be held to include a French authority exercising the power usually there exercised by a French consul. This case, therefore, was within the jurisdiction of the commission, and plaintiffs had a remedy there which they unsuccessfully invoked.

The parties before the commissioners were the same as here, the subject-matter was the same, and when the commission ruled adversely upon tbe merits of tbe case it became res ju-dicata, and can not be revived unless Congress bas in tbe act of 1885 given tbis court jurisdiction to consider it.

At tbe close of tbe last century tbe United States bad two remedies open to them for tbe settlement of tbeir claims arising from injury to citizens through illegal condemnation, within Spanish territory and jurisdiction, by French authority, of tbeir merchant vessels. One was against France, which committed tbe act; tbe other was against Spain, which had permitted the act within her ports. The United States elected to secure indemnity from Spain, and through the provisions of the treaty of 1819 these claims passed out of the forum of diplomatic negotiation and this country lost any rights it might have before had against France. By the treaty of 1819 the United States agreed to pay the claims of their citizens defined in its ninth article and soon provided a tribunal to adjudicate them.

The act by virtue of which we exercise jurisdiction over these spoliation cases describes them as valid claims to indemnity upon the French Government, arising out of illegal captures, etc., prior to the ratification of the treaty of 1800, and excludes from our consideration such “ claims growing out of the acts of France as were allowed and paid, in whole or in part, under the provisions of the treaty between the United States and Spain concluded on the 22d day of February, 1819.”

This claim was not allowed nor paid in whole or in part, but it was presented for payment to a tribunal having jurisdiction to consider it, and was decided upon the merits adversely to the plaintiff. The peculiar phraseology of the proviso which excludes from our jurisdiction claims “ embraced” in one treaty, “claims allowed and paid in whole or in part” under another treaty, and claims “allowed in whole or in part7’ under a third treaty, shows that Congress had in view certain claims which were “embraced” in these last two treaties, and from this class separated and threw out of our jurisdiction, in the one case claims which had not only been “allowed,” but also “paid in whole or in part;” and, in the other case, claims which simply had been “ allowed in whole or in part,” whether paid or not.

A class of claims was then contemplated (which was “ embraced” in the treaty of 1819, which had not been “allowed or paid in whole or in part,” and which is to be considered by this court.

To glean jurisdiction from a proviso in a statute, of a case already heard by a competent tribunal and decided upon the merits requires very clear and unequivocal language. Such jurisdiction can not be inferred, as every presumption is against such an inference. Many claims were rejected by the commissioners under the treaty of 1819 for reasons not going to the merits. Such claims may well have been u embraced” in the treaty, while not allowed. They are not res judicata according to any principle of law, and Congress intended to permit us to consider upon the merits such claims as were not decided upon the merits by the Spanish claims commissioners. This theory gives reasonable and sufficient force and effect to the proviso, which wé deem did not revive a cause already heard and decided upon its merits by a competent tribunal.  