
    THOMAS CUSHING, Administrator, v. THE UNITED STATES.
    [French Spoliations
    No. 132.
    Decided December 6, 1886.]
    
      On the defendants’ Motion.
    
    The general question of the liability of the United States for claims released to France by the Treaty 1800 is decided in the case of Gray (21 C. Cls. R., 340). Subsequently during the term, the law officers of the government move for a rehearing. All of the questions involved are reaTgued and reconsidered.
    T. The French Spoliation Cases cannot be maintained as subjects of legal right founded on municipal law; but Congress with full knowledge of the law and the facts, directed that they be investigated and determined under a different and broader rule, viz, “ According to the rules of laxo, municipal and international, amd the treaties of the United States applicable to the same,” Act 20th January, 1885 (23 Stat. L., 283).
    II. The question, what are “x'alid claims to indemnity upon the French Gov-miment,” is international and not within the scope of ordinary judicial inquiry, and is to be measured by rules which relate to the rights and obligations of nations.
    III. The purpose of the French Spoliation Act of 1885 is that the judicial shall assist the political branch of the Government in determining certain rights not enforceable in courts, but which are nevertheless obligatory under international law and the Constitution.
    
      IV.The court now adheres to its former conclusions (l) that the French depredations upon American commerce were illegal; (2) that the United ¡States hy the Treaty 1800 set off these claims against others “ maintained by France, and released them for a valuable consideration beneficial to this nation (3) that an appeal from a prize court is not an indispensable prerequisite to diplomatic interference and amid the circumstances is no defense in this case.
    V.It is the purpose of the Spoliation Act that the court shall determine whether each claim brought before it is valid as against France, and whether the United States became liable over to the indi- . vidual.
    VI.Neither original of the treaty of 1800 with France can be found; but the published copies differ only in the caption, which is not a part of a treaty, and is usually the work of an editor.
    VII. The treaty was not a treaty of peace, nor did it conclude or recognize a state of war or a condition of hostilities. The decision in Has v. Xingy (4 Dallas, 37), and the statutes to which the decision refers, • examined and explained.
    VIII. The treatyis not an adjudication of these claims adverse to this Government. Its own terms negative that assumption ; so do the negotiations which led to it, and so does the act 1885.
    IX.The reprisals of this country upon France were most limited in their nature; were allowed by the natural laws of self-defense, and defined and regulated by acts of Congress which were defensive in character, allowing French merchantmen to pursue their voyages unmolested and to refit and provision in our ports.
    X.The seizure of an American merchantman cannot be justified by the fact of her having been armed for defensive purposes. During the last century substantially all vessels were armed against pirates.
    XI. Condemnations of prize courts are final in actions between individuals, and as to the vessels condemned, giving purchasers a good title as against all the world, but do not bind foreign nations nor bar claims valid by international law.
    XII. The rights of prize courts are the rights of the capturing states. Their decrees do not relieve the state from responsibility nor preclude other powers from seeking redress or investigating the captures de novo.
    
    XIII.The absence of a ship’s papers may be punishable within local jurisdiction as a police measure, but never by absolute confiscation, if it be shown that the vessel was innocently pursuing a legitimate voyage.
    
      The Reporters’ statement of the case:
    The cases now argued and submitted are the same as those determined at the last term (21 C. Ols. K>., 340, 430), the present motion being merely a means for reviewing and resubmitting the legal questions previously considered. The cases were reported to Congress on the same day that this motion was decided. The findings in those cases are given below.
    The Schooner Industry.
    No. 132. Thomas Cushing, administrator of Marston Watson.
    No. 258. Charles F. Adams, administrator of Peter C. Brooks.
    No. 258. William Sohier, administrator of Nath. Fel-lowes.
    No. 1918. H. W. Blagge and Susan B, Samuels, administrators of Crowell Hatch. •
    FINDINGS OF FACT.
    These cases having been tried together before the Court of Claims, William E. Earle, esq., appearing for Thomas Cushing and Charles F. Adams; Edward Lander, esq., for William Sohier, and George S. Boutwell, esq., for Blagge and Samuels, claimants; and Benjamin Wilspn, esq., assistant attorney in the Department of Justice, with Bobert A. Howard, Assistant Attorney-General, for the defendants, the court, upon the evidence, finds the facts to be as follows:
    I. The schooner Industry, a duly registered vessel of the United States, of which Benjamin Hawkes was master, sailed on a commercial voyage from the port of Boston, Mass., June 1, 1798, bound for Surinam with a cargo of merchandise, both owned by Marston Watson, a citizen of the United States residing in said Boston, now deceased; said vessel was lawfully pursuing her voyage when she was seized and captured on the high seas by the French privateer Victoire, Captain Bandry, on the 26th of July, 1798, and was taken into the French port of Cayenne, and there libeled, condemned, and sold as a prize.
    II. The sole ground of condemnation was that the rdle dequip age which she had on board was “signed only by one notary public, without the confirmation of witnesses,” and that there was written on the back of said role an unsigned certificate that a role dequip age was unnecessary.
    III. The value at the time of said seizure was as follows:
    Vessel............................................ $1, 500
    .Freight........................................... 2,500
    Cargo of merchandise.............................. 10,555
    Cost of insurance................................. 4,000
    Total value.................................18, 555
    IV.Said Watson had insurance thereon to the amount of $12,000, which the claimant, Cushing, his duly appointed administrator, admits was paid to said Watson, or tliat he is chargeable with the receipt thereof. Crowell Hatch, William Smith, David Greene, Benjamin Bussey, and Nathaniel Fel-lowes, all citizens of the United States, were among the insurers, each for $1,000, through Peter C. Brooks, also a citizen of the United States, an insurance broker, which said sums were paid to said Marston Watson on or before February 20, 1799, as for a total loss of said schooner with the cargo.
    Y. Henry W. Blagge and Susan B. Samuels are the duly appointed administrators of said Crowell Hatch, deceased, and William Sohier is the duly appointed administrator of said Nathaniel Fellowes, deceased, and in their said representative capacity they are the present owners of the claims of their respective intestates above set out.
    Yl. Said Smith, on the 15th of December, 1801, in consideration of $4,000 and the assumption by said Brooks of all the disadvantages of the said Smith as an underwriter in the office of the said Brooks and said Greene, on the 23d of December, 1801, in consideration of $6,000, and the assumption of the disadvantages of said Greene as an underwriter in the office of said Brooks and said Bussey, on the 15th of February, 1805, in consideration of $10,000 and the assumption by said Brooks of the disadvantages of the said Bussey as an underwriter in the office of the said Brooks, assigned to said Brooks all their respective underwriting accounts in his said office; and said Charles F. Adams, administrator aforesaid in said representative capacity, is the present owner of said claims so assigned.
    VII. Said claims were not embraced in the convention between the United States and the Republic of France concluded on the 30th of April, 1803. It was not a claim 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 it was 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.
    CONCLUSIONS OF LAW.
    The court finds as conclusions of law that said seizure and condemnation were illegal, and the owners and insurers had valid claims therefor upon the French Government prior to the ratification of the convention between the United States and the French Republic, concluded on the 30th day of September, 1800, and were entitled to the following sums :
    Marston Watson, owner of the vessel and cargo----$18, 555
    Less the amount of the insurance.................. 12, 000
    Balance................................... 6, 555
    William Smith, David Greene, and Benjamin Bussey, repre-seated by Charles Francis Adams, administrator of Peter Oliardon Brooks, assignee, Crowell Hatch, and Nathaniel Fel-lowes, each $1,000, the amount of insurance paid by them respectively.
    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.
    The conclusions of law which, in our judgment, affect the liability of the United States therefor, are set forth in the opinions of this court, delivered May 17 and 24, and December 6,1886.
    Íhe Schooner Delight.
    No. 505. George Holbrook, administrator of Edward Holbrook.
    No. 249. Charles Francis Adams, administrator of Peter C. Brooks.
    No. 249. Ebenezer Gay, executor of the last will and testament of Ebenezer Gay, who was assignee in bankruptcy of Thomas English.
    No. 249. Charles T. Hunt, administrator of Joseph Bus-sell, surviving partner of Jeffrey & Bussell.
    No. 249. Henry. W. Blagge and Susan B. Samuels, administrator and administratrix of Crowell Hatch.
    No. 252. Charles Francis Adams, administrator of Peter O. Brooks.
    FINDINGS .OF FACT.
    These cases, involving a claim under the act of January 20, 1885, were heard by the Court of Claims. The claimants were represented by William E. Earle, esq., Messrs. Shellabarger & Wilson, and George S. Boutwell, esq.; and the defendants by Benjamin Wilson, esq., assistant attorney, with whom was the Assistant Attorney-General. After hearing the parties, their proofs, and arguments, the court from the evidence find the facts to be as follows:
    I. That the schooner Delight, an American registered vessel of 78 and a fraction tons, owned by Asa Payson and Edward Holbrook, both of Boston, Mass., sailed upon a commercial voyage from Boston to St. Bartholomew’s, June 22,1799, laden with a cargo of bacon, soap, candles, butter, and similar goods.
    II. That said vessel and cargo were owned by Payson'& Holbrook, with an adventure, belonging to Stephen Curtis, the captain, all of whom were citizens of the United States.
    III. That on July 2,1799, the owners obtained of Peter Char-don Brooks a policy of insurance on said schooner for $1,500, and on said cargo for $4,500, whereon the hereinafter named insurers underwrote as stated.
    
      IV. That on June 21, 1799, Stephen Curtis obtained a policy of insurance of $500 on his adventure, whereon Tuthill Hub-bart underwrote $500.
    V. That the schooner Delight and her cargo was captured by the French privateer, La Courageuse, Captain Vendibourg, July 19, 1799, and condemned at Guadeloupe.
    VI. That the sole grounds for the-condemnation were that a part of the cargo was English merchandise, and that the rale $ equipage was deficient.
    VII. That the cargo contained nothing contraband of war, under the treaty of February 6,1778, and nothing English.
    VIII. That the cargo owned by Payson & Holbrook was worth $5,959, and the insurance paid thereon being $1,500, they lost on the cargo $1,459; that the schooner was worth $3,243, and the insurance paid thereon being $1,500, the loss thereon was $1,743; that the freight was reasonably worth $2,500; that the insurance premium paid was $600, making $6,302.
    IN. That the said underwriters named in Finding No. Ill paid the said several sums for which they underwrote, amounting to $6,000, and Tuthill Hubbart also paid the amount for which he underwrote, as found in Finding No. IV, and thereupon the insured abandoned.to the underwriters in writing to the extent of the insurance.
    X. Crowell Hatch, Tuthill Hubbart, William Smith, Jeffrey & Russell, Benjamin Homer, Thomas English, David Greene, Daniel Denison Rogers, all citizens of the United States, were insurers for the following sums, to wit: Said Hatch, Hubbart, Smith, and Jeffrey & Russell, each in the sum of $1,000, said Homer, English, Greene, and Rogers, each in the sum of $500, through Peter Ohardou Brooks, also a citizen of the United States and an insurance broker, which said sums were paid to the said Payson & Holbrook before January 25,1800, as and for a total loss of said schooner and cargo.
    XI. Tuthill Hubbart, a citizen of the United States, was an insurer in the sum of $500, through Peter Ohardou Brooks, a citizen of the United States and an insurance broker, which said sum was paid to. Stephen Curtis before January 25,1800, as and for a total loss of his adventure on board of said schooner.
    XII. Henry W. Blagge and Susan B. Samuels are the duly appointed administrators of Crowell Hatch, deceased, and Charles F. Hunt is the administrator, cum testamento annexo, of Joseph Russell, deceased, surviving partner of Jeffrey A. Russell; and Ebenezer Gay is the executor of the last will and testament of Ebenezer Gay, assignee in bankruptcy of Thomas English, deceased ; and in their representative capacities they are the present owners of the claims of their respective decedents herein set forth.
    
      XIII. That said Smith, on the 16th of December, 1801, in consideration of $4,000 and of the assumption of the liabilities of the said Smith as an underwriter in the office of Peter Char-don Brooks; and said .Greene, on the 23d day of December, 1801, in consideration of $6,000 and the assumption of the liabilities of the said Greene in the office of said Brooks as an underwriter; and said Rogers, on the 19th of October, 1804, in consideration of $3,400 and the assumption of the liabilities of the said Rogers as an underwriter in the office of the said Brooks; and the said Homer, on the 23d of July, 1805, in consideration of $5,000 and the assumption of the liabilities of the said Homer in the office of the said Brooks as an underwriter; and .the said Hubbart, on the 4th of April, 1808, in consideration of $60,000 and of the assumption of the liabilities of the said Hubbart in the office of the said Brooks as án underwriter, assigned to the said Brooks all their respective underwriting accounts in his said office.
    XIY. That said claims wore not embraced in the convention between the United States and the Republic o: France, concluded on the 30th of April, 1803; that they 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 day of February, 1819; and they 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.
    CONCLUSIONS OE LAW.
    The court finds as conclusions of law that said seizure and condemnation were illegal, and the owners and insurers had valid claims therefor upon the French Government prior to the ratification of the convention between the United States and the French Republic, concluded the 30th clay of September, 1800, and were entitled to the following sums to wit:
    Payson & Holbrook, owners of vessel and cargo, after deducting insurance, $6,302.
    Benjamin Homer, Daniel Denison Rogers, and David Greene, represented by Charles Francis Adams, jr., administrator of Peter Chardou Brooks, each $500.
    Crowell Hatch, represented by Henry W. Blagge and Susan B. Samuels, $1,000.
    Jeffrey & Russell, represented by Charles F. Hunt, $1,000.
    Thomas English, represented by Ebenezer Gay, $500.
    Tuthill Hubbart and William Smith, represented by Charles Francis Adams, jr., administrator of Peter Chardou Brooks, $1,000 each.
    Tuthill Hubbart, in case No. 252, represented by Charles Francis Adams, jr., administrator of Peter Chardou Brooks, $500, the same being the amounts of insurance paid by them respectively.
    
      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.
    The conclusions of law which in our judgment affect the liability of the United States therefor are set forth in the opinions of this court delivered May 17 and 21 and December 6,1886.
    The Schooner Little Pegg.
    No. 155. Francis King Carey, administrator of Samuel Hol-lingsworth.
    FINDINGS OE EACT.
    This case was heard before the Court of Claims May, 1886.
    The claimant was represented by William E. Earle, esq., and John & David Stewart, esqrs., and the defendants by Benjamin Wilson, esq., assistant attorney. After hearing the parties, their proofs and arguments, the court from the evidence finds the facts to be as follows:
    I. In 1798, Thomas and Samuel Hollingsworth, of whom Samuel was the survivor, citizens of Baltimore and of the United States, were the owners of the schooner Little Pegg, a duly registered vessel of the United States.
    II. In the same year said vessel sailed upon a lawful voyage from Baltimore, Md., to Kingston, Jamaica, under the command of William Auld, master, laden with a cargo of flour, crackers, peas, and shingles, all belonging to said owners. September 28,1798, the vessel was captured by a French privateer, called Le Macanda, commanded by Lewis Duprat, and carried into Port au Paix. Said vessel and her cargo were subsequently condemned, to wit, October 3,1799, as prize, at Cape Frangois, by the French prize tribunal.
    III. William Auld, the said master, was born in Scotland, but was naturalized as a citizen of the United States August 22,1798, and had been a resident of Baltimore since January, 1795. The condemnation of the vessel and cargo was made on the ground that the master was anative of Scotland, with which country France was at war.
    IY. At the time of the capture said vessel was worth $2,000, the cargo $2,760.50, and the freight $1,200, making in all $5,960.50. The claim has never been assigned. The claimant is the duly appointed administrator de bonis non of the estate of Samuel Hollingsworth, deceased, by the orphans’ court of Baltimore.
    Y. This claim was not embraced in the convention between the United States and the Republic of France concluded on the 13th day of April, 1803 ; that it was not a claim 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 day of February, 1819 ; and that it was not allowed, in whole or in part, under the provisions of the treaty between the United States and France, concluded on the 4th day of July, 1831.
    CONCLUSIONS OE LAW.
    The court finds as conclusion of law that Samuel Hollings-worth has a valid claim to indemnity upon the French Government prior to the ratification of the convention between the United States and the French Republic, concluded on the 30th day of September, 1800, and was entitled to the sum of $5,960.50, and that the claim was 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.
    The conclusions of law which in our judgment affect the liability of the United States therefor are set forth in the opinion of this court delivered the 17th and 24th of May and the 6th of December, 1886.
    The Ship Theresa.
    No. 142. R. Stewart Strobel and Henry L. Bruns, administrators of Thomas Stewart.
    FINDINGS OE FACT.
    This case, involving a claim under the act of January 20, 1885, was heard before the Court of Claims in May, 1886. The claimant was represented by William E. Earle, esq., and the defendants by Hon. Benjamin Wilson, assistant attorney. After hearing the parties, their proofs and arguments, the court from the'evidence finds the facts to be as follows :
    I. In 1797 Thomas Stewart, a citizen of Charleston, S. C., was the owner of the ship Theresa. The Theresa was duly registered as a vessel of the United States. In the same year, under the command of James Brown, the master, she sailed, in ballast, upon a lawful voyage from London to É antes, where she was to take in a cargo of salt. She bore a letter from Mr. King, the United States minister to Great Britain, to P. F. Dorbee, vice-consul of the United States at Nantes. Arriving at Nantes she was seized by the French marine officers, and, on April 25, 1798, condemned by the tribunal of commerce, whereby she became lost to the owner.
    II. The Theresa was condemned “upon the plea of the want of a muster-roll or róle d'égidpage.” The legality of condemnation for this cause, the liability of France to make restitution, and the transfer of such liability to the United States by the operation of the treaty of 1800, were considered by the court and ruled upon adversely to the defendants in the case of William Gray, Administrator, v. The United States, No. 7 of these claims.
    
      III. The value of the Theresa was $6,350. The claim, has never been assigned, nor is it embraced in the convention between the United States and the French Republic concluded on the 30th day of April, 1803; nor to 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; ñor to such claims as were allowed, in whole or in part, under, the provisions of the treaty between the United States and France concluded on the 4th day of July, 1831.
    IY. The claimants Avere duly appointed administrators de bonis non of the estate of Thomas Stewart, deceased, by the probate court of Charleston County, S. C.
    CONCLUSIONS OR LAW.
    The court finds as conclusion of law that the said Thomas Stewart had a valid claim to indemnity upon the French Government prior to the ratification of the convention between the United States and the French Republic, concluded on the 30th day of September, 1800, and A\ras entitled to the following sum of $6,350, and that the claim was 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.
    The conclusions of Iuav Avhich in our judgment affect the liability of the United States therefor are set forth in the opinions of this court deliA’ered the 17th and 24th of May and the 6th of December, 1886.
    The questions submitted by the counsel for the defendants on the present motion wore the following:
    1. Whether the ship’s paper called a role ed equip age, or muster roll, or crew list, Avas properly exacted of the original claimants by the French admiralty courts.
    2. Whether the original claimants were excused from an exhaustion of their remedies against the privateer owners in France.
    3. The question of the conclusiveness against the original claimants of the admiralty condemnations in France.
    4. Whether there was war between France and the United States at the time these claims arose, and how that fact affected their validity.
    5. Whether the French Government ever admitted the validity of the present claims,
    6. Whether this Government bargained away and appropriated the present claims while pending against France.
    
      
      Mr. Solicitor-General Jcnhs, for the defendants,
    requested the court to find the following conclusions of law :
    1. That the act of the 20th of January, 1885, submits to this court two questions for its consideration and report: (a) The validity of the claims presented as against France. (b) Such facts and conclusions of law as may affect the liability of the United States therefor. (23- Stat. L., 283, § 1, 3.)
    2. That the court, in its report and conclusions of law, is required to conform to the rules of law, municipal and international, and the treaties of the United States applicable to the case. (23 Stat. L., 283, § 3.)
    3. That the acts of Congress of the United States, unrepealed, within the limits of the Constitution, are conclusively obligatory upon this court as law in this case.
    4. That this court is not empowered under the law to go behind an act of Congress, unrepealed, to inquire into the motives, reasons, or facts which induced the passage of the act, and pass upon the verity or sufficiency of the facts, motives, or reasons which occasioned the legislative power to pass it, or decide, because it may differ with the legislative power as to the verity of the facts and the sufficiency of the reasons, therefore the act regularly passed, approved, unrepealed, and within the limits of the Constitution, is not law. (Osborn v. U. S., 7 Wheaton, 866; Fisher v. Blight, 2 Oranoh, 390; U. S. v. Wilt-berger, 5 Wheaton, 95, 105.)
    5. It is a prerogative of sovereignty to judge and determine conclusively whether war is justifiable; and when a‘sovereign so determines it is conclusive on the whole world. (Story on the Constitution, § 207.)
    6. France, at the time of the seizure of the property for which claim is made, was a sovereign nation, and, as such, had a right to determine conclusively as to the United States whether her status should be that of peace or war; and if the latter, whether it should be general or limited; and, in either event, the principles of international law applicable to the status she selected are those which should control in determining her liability for the property for which claim is made. (The Charming Betsey, 2 Crauch, 118; 1 id., 39-28 ; 3 Wheaton, 315.)
    7. That the deliberate act of France by which she authorized the seizure by force, the condemnation, and confiscation of the merchantmen and armed vessels of the United States, under which the property claimed in this case was seized, was the actual assertion and exercise of a belligerent power, and, as such, constituted a maritime war on her part against the United States. (Bas v, Tingy, 4'Dali., 39, 40, 41: Dana’s Wheaton, § 291.)
    8. That the right to redress by the United States or her citizens for the seizure of the property claimed should be determined by the principles of international law, as applicable to a nation engaged in a maritime war. (Talbot v. Seaman, 1 Oranch, 28.)
    9. That during the existence of a maritime war, if a vessel and cargo of a citizen be seized by one of the belligerents, and be not recaptured by one of his own nation, his title is gone ; and, unless,by the treaty which terminates the war the rights are reserved, or indemnity is provided for or received for the seizure, he has no valid claim for his loss. (YattePs Law of Nations, 385, 386; 2 BlaCkstone, 400; 8 Oranch, 145.)
    10. The determination as to whether war is justifiable and exists belongs, under the United States Government, to the political departments of the Government, and their determination is conclusive as" law on the judiciary. (2 Black, 670; 12 Wall., 702; 15 id., 560, 561.)
    11. If the political departments of the Government enact such laws, make such proclamations, as authorize the forcible capture of the property of another nation on the high seas, make conquests, and condemn the property captured as booty, it is a political determination of the existence of war. (Prize Oases, 2 Black, 670; 12 Wall., 702; 15 id., 560.)
    12. The act of Congress of the 9th of July, 1798, and other similar acts, at ,and about the same time, in pursuance thereof, followed by the capture and condemnation of the property of the French, and other warlike acts of retaliation by force, is a conclusive determination by the political departments of the Government that war existed by the United States against France.* (Bas v. Tingy, 4 Dali., 42,43, 44, 46; 1 Oranch, 28,31.)
    The syllabus in Bas v. Tingy is as follows :■
    
      u Under the seventh section of the Act of March 2, 1799 (1 Stat. L., 716), France was to be deemed an'enemy of the United States in March, 1799, and a French privateer having captured an American vessel, a,public armed vessel of the United States was entitled to salvage or recapture.”
    The opinion declares as follows:
    « The decision of this question must depend upon another, which is whether, at the time of passing the act of Congress of the 2d of March, 1799, there subsisted a state of war between the two nations. It may, I believe, be safely laid down that every contention by force between two nations, in external matters, under the authority of their respective Governments, is not only war, but public war. If it be declared in form, it is called solemn, and is of the perfect kind; because one whole nation is at war with another whole nation, and all the members of the nation declaring war are authorized to commit hostilities against all the members of the other in every place and under every circumstance. In such a war all the members act under a general authority, and all the rights and consequences attach to their condition.
    
      “ But hostilities may subsist between two na tions, more confined in its nature and extent, being limited as to places, persons, and things, and this is more properly termed imperfect war, because not solemn, and because those who are authorized to commit hostilities act under special .authority and can go no farther than to the extent of their commission. Still, however, it is public war, because it is an external contention by force between some of the members of the two nations, authorized by the legitimate powers. It is a war between the two nations, though all the members are not authorized to commit hostilities such as in a solemn war where the Government restrain the general power.
    “ Now, if this be the true definition of war, let us see what was the situation of the United States in relation to France. In March, 1799, Congress had raised an army, stopped all intercourse with France,, dissolved our treaty, built and equipped ships of war and commissioned private armed ships; enjoining the former and authorizing the latter to defend themselves against the armed ships of France; to attack them on the high seas, to subdue and take them as prize, and to recapture armed vessels found in their possession.”
    “ What, then, is the evidence of legislative will ? Tn fact and in law we are at war. An American vessel fighting with a French vessel to subdue and make her prize is fighting with an enemy, accurately and technically speaking; and if this be not sufficient evidence of the legislative mind, it is explained in the same law. The sixth and the ninth sections of the act speak of prizes, which can only be of property taken at sea from an enemy, -jure belli; and the ninth section speaks of prizes taken from an enemy, in so many words, alluding to prizes which had been previously taken. But no prize could have been then taken except from France; prizes taken from France were, therefore, taken from the enemy. This, then, is a legislative interpretation of the word enemy; and if the enemy as to prizes, surely they preserve the same character as to recaptures. Besides, it may be fairly asked, Why should the rate of salvage be different in such a war as the present from the salvage in a war more solemn and general Í And it must be recollected that the occasion of making the law of March, 1799, was not only to raise the salvage, but to apportion it to the hazard in which the property retaken was placed, a circumstance for which the former salvage law had not provided.
    “ The two laws, on the whole, cannot be rendered consistent unless the court could wink so hard as not to see and know, that in fact in the view of Congress, and to every intent and purpose, the possession by a French armed vessel of an American vessel was the possession of an enemy, and, therefore, in my opinion, the decree of the Circuit Court ought to be affirmed.”
    “ But by the acts of Congress an American vessel is authorized: 1st. To resist the search of a French public vessel; 2d. To capture any vessel that should attempt by force to comppl submission to a search ; 3d. To recapture any American vessel seized by a French vessel; and 4th. To capture any French armed vessel wherever found on the high seas.”
    “ An imperfect war, or a war as to certain objects and to a certain extent, exists between the two nations; and this modified warfare is authorized by the constitutional authority of our country. It is war quoad hoc. As far as Congress tolerated and authorized the war on our part, so far may we proceed in hostile operations. It is a maritime war, a war at sea as to certain purposes. The national armed vessels of France attack and capture the national armed vessels of the United States; and the national armed vessels are expressly authorized and directed to attack, subdue, and take the national armed vessels of France, and also to recapture American vessels.”
    Now, is that the truth or is it false? Is that law to this court or is it not law; and was not that a capture exactly like this of the Sally ? But if it were a war and the laws of war apply, there was no title, no right of recovery whatever left in the owner of the Sally twenty-four hours after she was taken under general international law. Under our statute there was none at all, unless on recapture. The same view is expressed in another form by each and every justice in that cause. Now, if you will take that case and make any possible distinction between the case of Bas v. Tingy and this case at bar, it is more than I am capable of making on principle, because you will have to find it was captured just as the Sally was.
    13. The United States having elected to redress the wrongs France had done her and her citizens by retaliation — a warlike measure — and having actually obtained redress in that way, cannot afterwards, in the absence of treaty stipulations, deny the justice of the judgment in this last and highest tribunal of nations, nor claim another remedy arid payment for the same wrong. (Treaty of 1800, Rev. Stat., § 225; Yattel, 437,438.)
    14. The claim in this case, if any existed, having then been redressed by the war measures of retaliation as against France, is barred by the redress received in the judgment of that court of last resort.
    15. When a sovereign appeals to the judgment of the tribunal of war, that ax>peal is final and conclusive as to the parties in the controversy and all their citizens as to the subject-matter of the dispute, and is conclusively presumed to be fully executed in the treaty by which the appeal is terminated.
    1G. That by the treaty of 1800 as ratified, no rights of the citizen were reserved, nor any indemnity provided for or received ; but both the United States and France expressly renounced their respective pretensions to indemnity for past alleged wrongs committed by either. (Rev. Stat., § 232.)
    
      17. That the very cause of the warlike measures determined upon by the United States as against France, which was terminated by the treaty of 1800, was the capture, condemnation, and destruction by the French of American vessels and cargoes, in which was included the property claimed by the petitioner in this case. (Rawle on the Constitution, 100.)
    IS. That under the law and facts of this case, the claimant had no right, at, immediately before, or after the treaty of 1800, -to indemnity for his claim against France.
    19. A nation, by the compact of Government, does not insure against nor agree to indemnify its citizens for all wrongs done them, either individual or national. (Yattel, 402, 403.)
    20. The fact that the United States did not require an indemnity of France for the spoliations committed on the commerce of her citizens does not impose on the United States the legal duty of paying all or any claims for which she as a sovereign did not see fit to demand indemnity.
    21. That the judgment of the political departments of the Government in making and ratifying the treaty of 1800 being a political act, and within the jurisdiction of the political departments, is, as law, conclusive on this court; and this court-is not empowered to reopen the justice or expedience of the treaty, nor to rejudge it on any grounds. (Williams v. Suffolk Insurance Co., 13 Pet., 420; Phillips v. Payne, 92 U. S. R., 132. Hie Amiable Isabella, 6 Wheat., 72.)
    22. That by the act of Congress of the 7th of July, 1798 (1 Stat. L,, p. 578), the treaty of 1778 between the United States and France was annulled, and Francé, after the passage of the act, had no lawful claim against the United States for or on account of that treaty, or for or on account of any breach or infringement thereof. (1 Stat. L., 538; Rawle on the Constitution, 109; Chirac v. Chirac, 2 Wheat., 272; The Charming Betsey, 2 Orancli, 118.)
    23. That under the law and treaties in this case no claim of France against the United States for any breach or infraction of the treaty of 1778 was paid by set-off, defalcation, or compromise of any rights, i f such existed, which this claimant had against France for spoliation.
    24. That at the time negotiations for the treaty of 1800 were had between the United States and France, no treaty existed between them, nor any treaty obligation.
    25. The United States, by the treaty of 1800, did not receive, reserve, nor stipulate for any additional redress for the alleged wrong claimed in the case of the petitioner; but, upon its ratification, expressly renounced its pretensions of claim therefor. (Rev. Stat., 43d Cong., Post Roads and Treaties, p. 232.)
    26. That the claimant in this case has no legal claim or right against the United States.
    
      
      Mr. B. Wilson, for tbe defendants,
    proposed the following additional requests:
    1. That international law concerning neutral commerce required, as proofs of the neutrality of a vessel, the same proofs which are mentioned in the treaty of 1778, which are, 1st, the certificate of the several particulars of the cargo (Ordinance of 1681; Ohitty’s Com. Law, 487; DeMartens’ Armateurs, §. 21); 2d, a passport (Ohitty’s Com. Law, 487; Ordinance of 1681; 3 Phillimore Int. Law, 734, cases there cited); 3d, the certificate of the ownership of the vessel (regulation of the Hanseatic League, 1369); 4th, the report or proeés -verbal of the captain of what was done during the voyage (Boucher Droits Maritimes, §§. 368, 498; Emerigon, sec. tom. 1, fol. 276); 5th, the carrying of the flag of the country to which the vessel belongs (1 Bob. Adm. Bep., 1, 19, 161); 6th, the rale ffléquipage (Beglements of 1704,1774,1778; Chitty’s Com. Law, 487; Valin,'Traite de Prises, &c.).
    2. That the treaty of 1778, so far as the proofs of neutrality or innocence were concerned, was therefore declaratory of international law already existing and to be intepreted accordingly.-
    3. That the treaty required a role Wéquipage, or list of the crew, giving the names and places of birth of the crew and of all who should embark on board, duly authenticated by the officers of the Government.
    4. That the object of such a list, not being stated in the treaty, is to be sought for in international law, and-is there declared to be to prove the neutrality of the crew. (DeMar-tens Armateurs, § 21; Chitty’s Com. Law, 487.)
    5. That the Government of the United States having failed and refused to live up to the offensive and defensive alliance (treaty of 1778) existing between it and France, and proclaimed itself neutral, it was competent for the French Government to-recognize us as neutrals, and thereafter legal for the French courts to treat our vessels as those of neutrals were to be treated under international law, and no longer as those of allies, disregarding anything in the treaties arising out of the favored position of allies.
    6. That when the vessel of a belligerent captured any suspected vessel, tbe question of prize belongs exclusively to the-jurisdiction of the courts of the captor’s country. (9 Oranch, 359; 1 AVheat., 238; 2 Gallison, 29.)
    7. That where there is probable cause of capture, i. e., circumstances to warrant a reasonable suspicion of illegal conduct, the captors are justified and exonerated from all losses and damages sustained by reason of the capture, and the burden of proof is on the captured. (The Rover, 2 Gallison, 240; Maissonnaire v. Keating, 2 Gallison, 336; The George, 1 Mason, 24; Shattuelc v. Maley, 1 Wash. C. C., 248.)
    
      8. In the prize court the onus probandi rests on the captured. (The Amiab’e Isabella, 6 Wheat., 77; 3 Phiilimore Int. Law, 723; 8 Orancli, 155.)
    9. That as the neutrality or innocence of the property of the claimant was not proven beyond a reasonable doubt, it was rightly condemned. (Id.)
    10. That municipal laws to enforce a nation’s rights under international law are facts of the relations of two nations, and acts performed by a nation, of which the prize court takes notice in order to enforce international law as applicable thereto; that this was done in the cases of the present claimants, and the condemnation of this property was not rendered' illegal by such procedure.
    11. That claimants had no valid claim against France, for the reason, among others, that they did not exhaust their remedies in the French courts by appeal or action upon the bond and against the property of the captor.
    12. That not to appeal from the decision of the inferior court condemning the claimant’s vessel was an acknowledgment of the justice of the sentence and conclusive. (Lee on Captures, 220.)
    13. It is universally admitted that the decree of a prize court is conclusive against all the world as to all matters decided and within its jurisdiction. (17 Otto, p. 80, authorities there ' cited; note, Gushing v. Laird. See also Article 5, French and United States Treaty, 1803.)
    14. That it is contrary to public policy to ask a nation to reprobate the long-continued conduct of its political department. (Ellsworth, Ch. J., quoted below; also Yattel, bk. 2, ch. 7, § 85.)
    15. That the capture of claimant’s property was an act of war, and as such gave rise to no valid claim i or indemnity. (Yattel, bk. 3, ch. 13, § 190; 1 Rob. Adm. Rep., 581; 3 Dallas, 226, 227, &c.)
    16. That to render a war lawful, and legalize the damage done in the course of it, no declaration is necessary. (Bynder-shoeck on the Law of War, ch. 2; Grotius, lib. 3, ch. 3, § 6, notes 1 and 2.)
    17. That when a state authorizes reprisals for national injury to be made by an indiscriminate seizure of the property of the subjects of another, this order is equivalent to a declaration of war. (Dana’s Wheaton, § 291.)
    18. That’ in recognizing that France was at war against us we recognized that the laws of war were applicable to her proceedings, and were estopped to claim that they were piratical. (1 Stat. L., act of July 9,1798; Bas v. Tingy, 4 Dallas, 38; 1 Cranch, 1.)
    19. That the political departments of the Government having recognized that France was at war in respect of the seizures of our vessels, the courts cannot consider as piratical those acts of hostility which were so directed against our vessels. (TJ. 8. v. Palmer, 6 Wheaton, 634.)
    20. That the confiscation of enemy’s vessels and cargoes is lawful under the law of nations, and rests upon the sound discretion of the national sovereign. (8 Cranch, 145.)
    21. That the property of the subjects of one nation may be confiscated by another, after a failure to satisfy for an injury and without a war. (Vattel, bk. 2, ch. 18, § 342; Dana’s Wheat-on, § 290; Kliiber, Droits des Gens, § 234, note C; Burlamaqui, Droits des Gens, pt. 4, ch. 3, § 43.)
    
      Mr. William E. Earle,
    
    having participated in the original argument for claimants and filed printed briefs, submitted the following propositions:
    I. That certain claims of American citizens have been re- . leased to France. This we established by the treaty of 1800,
    and by the correspondence and negotiations relative thereto, as officially published in Ex. Doc. 102, 1st sess., 19th Oong.
    II. That these claims for indemnity were valid against France, and that her liability for them was admitted by France. This w'e have established by well settled principles of the law of nations and the treaties between the two natiQns, and the evidence in Ex. Doc. 102.
    III. That the United States released to France these claims of American citizens “for a valuable consideration for the public benefit,” ignoring the rights of individual citizens who had suffered by the spoliations. This we have established by the treaty of 1800, and the correspondence and negotiations as to it, as published in Ex. Doc. 102, and the proceedings of the two nations as to its ratification.
    IY. That the release by France, of her claims fbr indemnity, for the failure to keep the treaties of 1778, and for making the Jay treaty, in Í794, was to the United States a “valuable consideration,” for their release to France of these claims of their citizens against her. This we have established by the official correspondence published in Ex. Doc. 102, and the treaties of 1778, and well recognized principles of the law of nations.
    Y. That whilst prize courts may hold themselves bound to administer the local laws and regulations of their own country, and whilst their own decrees are final as to property in the res, yet their judgment is the act of their government, and a valid diplomatic claim rests upon it, if the condemnation is in derogation of the law of nations or impairs a treaty. This we have established by decisions of our Supreme Court, and by the settled law of nations.
    VI. That in the treaty of 1800, the governments of the two countries came together in an adjustment of their differences or “ misunderstanding,” as on the basis of the continued existence of the treaties of 1778, and agreed “ to negotiate further” as to those treaties and the mutual claims for indemnity for their mutual violations of them; and subsequently, in its ratification, the United States secured a release from the future obligations of the treaties of 1778 and their liabilities for having failed to observe them, in consideration of a release to France of their claims for reclamation of American citizens. The bargain was not only a set-off of the mutual claims to indemnity, but a release to the United States from these treaties for the future.
    VII. That war leaves the right to captured property with the possessor at the time of the signing of the treaty; but in view of the fact that there had been no war, this treaty mutually restored all captures on hand.
    VIII. That the question arises as to what cases come within the class of those released to France, in the bargain effected by the recision of the second article, and were therefore valid claims against France, and not excluded by the terms of the exceptions relating to the three other treaties, as declared in the terms of the jurisdictional act, referring these claims to this court. And the answer to this is, all u for illegal captures, detentions, seizures, condemnations, and confiscations, made prior to July 31,1801,” which do not come within one of the three exceptions of the jurisdictional act, and which were made in- violation of the treaties between France and the United States, and in violation of the law of nations. And this answer must be applied to the state of facts established by the evidence in each particular case.
    IX. That most of these condemnations were based on the want of a róle d’équipage, which was required by the ancient maritime regulations of France, and this regulation was reenacted after the treaties of 1778. The civil tribunals on appeal from the tribunals of commerce, held that this regulation was binding on the courts of France without regard either to the treaties or to the laws of nations. These condemnations, we maintain, were not only in violation of the treaty but of the law of nations.
    
      X. That condemnations because the captain or mate was foreign-born, though a naturalized American citizen, were in violation of the law of nations.
    XI. That condemnations for running a blockade were unlawful, for it is a well-established historical fact that the French had not a blockade in the West Indies, and the very proclamations of blockade themselves, show that they were brutum fulmen and mere pretexts for making captures.
    XII. That the few remaining captures were on the ground of carrying British productions or trading to British ports, both whereof are indisputably in violation of the treaty aud are in contravention of the law of nations.
    XIII. An illegal condemnation by a prize court is the act of the government of that court, and the valid basis of a diplomatic claim.
    
      Mr. William Gray, Mr. George S. Boutwell, Mr. Bdicard Lander, Mr. Lawrence Lewis, jr., Mr. Samuel Shelldbarger, Mr. Jere Wilson and Mr. Leonard Myers were also heard in support of the position taken by the claimants.
    Argument of Mr. B. Wilson for the defendants:
    The third section of the jurisdictional act January 20, 1885, provides that this court “ shall decide upon the validity of said claims according to the rules of law, municipal and international, and the treaties of the United States applicable to the same, and shall report all such conclusions of fact and law as in their judgment may affect the liability of the United States therefor.”
    By the sixth section it is provided that such finding and report shall be only advisory.
    Congress wants no information from the court, but positive fact and positive law, and when the court finds such a thing is the fact and such a principle is the established law, and so report to Congress, that body proposes to take action according to its own wisdom upon the report so made. For example, the Supreme Court, interpreting the acts of the political department, have settled the question as to war in all its bearings, and the law to be that it was such a war as authorized captures and condemnations as prize and made one government the enemy of the other. (4 Dallas, 38; 1 Cranch, pp. 1-9, 31, 32, 39, 40, 41.) What more can be done but to report accordingly? Again, the Supreme Court {Ware, Administrator, v. Hylton et al., 3 Dallas 258,1796) have settled the law of nations to be that treaties between sovereign powers when broken by one are voidable at the option of the other; and in Chirac v. Chirac, the same court, Marshall, Ch. J., delivering the opinion, held that in 1799 no treaty was in existence between France and the United States. (2 Wheaton, 272.)
    What can be done by this court but report that such is the law on that subject? In the same manner, by reference to standard authorities, should all other legal principles be ascertained and reported, as, for example, the conclusiveness of prize adjudications {Cushing v. Laird, 107, U. S. R., pp. 69), and invalidity in law of claims, based either upon such adjudications (Lord Eldon in 2 Swanston, 576) or upon acts of war, and the necessity of exhausting remedies in the courts in such cases (other than prize cases, however) where valid claims may exist. All these things are settled law, and operate favorably to the United States in this matter. Special exemptions from the general law must be specially pleaded and proven. For example, if some of the captured were prevented from exhausting their remedies, and it appears that all were not, it is incumbent on each claimant to show that he was so prevented. The burden must be on some one to show it, and he who asserts a fact must prove it, and not he who denies it prove the negative. Most, practically all these claims would be invalid for want of exhaustion of remedies, if not already invalid because prize judgments are conclusive and final. •
    The facts to be reported are, of course, the when and how, where and .why, seizures and captures were made by the French. These being found, then the question of law arises, were they illegally made? Were they made in pursuance of international law ? It is not pretended that they were made without authority of French law. But it is pretended that France had no right under the law of nations to pass such laws. If this was pretended of the laws of Congress in 1798 authorizing condemnation of French property we should call the pretense an absurdity. However, were the laws illegal according to international law? Upon what alleged right of France were they based ? Evidently on the right, which every nation has, of using force to retaliate upon another nation which she believes to have deprived her of her rights secured by treaty, and to have wronged her otherwise. Was this using of force by France for such a purpose legal or illegal ? Yattel and Grotius, and other writers on the law of nations, tell us that such laws are proper, and that it is for every sovereign nation to decide for itself when they ought to be passed, not because might is right, but because there is nobody else to decide the question. If the law is'right and proper, was it legal to enforce it in the courts 1 To ask such a question is to answer it. The right of a sovereign to enact such laws is as well settled as any international question can be.
    When the commander of a French vessel captured an American vessel there was only one legal way to determine whether he had legally captured her, and whether she was lawful prize under the treaties and the law of nations, and that was by trial in a prize court of the captor’s country; so says the law of nations. That trial and the finding were not only legal, but the only legal ones possible. Any other trial and a finding, in any other kind of court, in any other country, would have been illegal, but not this. This is another conclusion of the law of nations which affects the liability of the Government of the United States when subrogated to the liability of France. Prize judgments are not disregarded by international commissions created by the consent of nations, because they are, properly speaking, illegal, but for reasons of diplomacy and compromise. For example, the Alabama Commission, as one of the opposite counsel stated, disregarded decisions of the Supreme Court in prize cases. The reports of those Commissioners show that the correctness and legality of the court’s decisions were not disputed, but under the treaty they were to decide according to abstract justice rather than according to law. Law works absolute justice in most cases, but fails to do so in the exceptional cases. Nations can waive their right to the enforcement of law in such exceptional cases.
    This was proposed by American envoys for France to do in, 1800, but she refused because we did not agree to her propositions. In the Alabama cases the waiver was agreed upon. That consent could rightly have been withheld, and the law insisted on, but policy induced the contrary. To quote from the argument used in those cases:
    “ It was further maintained on behalf of the claimants that,. under the treaty of Washington, the Commissioners were not constituted a tribunal Miich in prize cases had a merely appellate jurisdiction to review the judgments of the prize court of last resort; that the Commissioners had, by the terms of the treaty, greater and more absolute power to do justice than was or could be exercised by the prize courts of the United States; and that even if the Commissioners should be satisfied that upon the record presented to the prize court, the facts disclosed warranted condemnation under the law of nations, yet if they found, under all the circumstances of the case, that in justice and equity the claimants were entitled to indemnity, it was their solemn duty to award it, even though it were in the face of the technical rule of the prize courts.”
    As stated, nations may waive their right under international law, and reach results mutually satisfactory by diplomacy, but diplomacy is not international law.
    This can only be done by consent of sovereign nations, and money paid upon claims thus admitted or created, is a gift or donation for purely political and diplomatic reasons. (2 Swans-ton, 576). France did not waive her legal right as to the conclusiveness of the judgments of her prize courts, nor to the necessity for claimants to exkausttheir remedy by appeal oroth-erwise, nor as to the effect of the public maritime war between the two nations. She declined to waive these rights, because we refused to revive without modification the ancient treaties.
    As to the alleged admissions and the statements made and omitted in the notes exchanged between the French and American negotiators of the treaty of 1800, embraced between pages 580 and 637, Senate Ex. Doc. 102,19th Cong., 1st sess., a perusal of those pages with care and anxiety does not reveal either the admissions or omissions relied on by claimants. Neither any waiving of the exhaustion of remedies by France, nor any admission of the validity of the claims, occurs anywhere in that negotiation. The various proposals and counter-proposals, being mere diplomatic chaffering, might explain, but could not alter, what was done. Claims for indemnities due or claimed were renounced (chat is, as the word means, withdrawn), and Congress has asked this court to determine, under international law and the treaties, which were also law, whether they were due or not.
    The American envoys (Ex. Doc. 102, 19th Cong., 1st sess., p. 587, &c.) admitted the following rights of France under the law of nations by asking her to waive them, viz, the conclusiveness of prize judgments (i. e., tlieea?ciMSM>0Messofprizejurisdiction in the capturing Government), the right to construe for itself the treaty of 1778, as to the role d'équipage and the right to pass the retaliatory decree of January 18,1798. The principle of conclusiveness of judgments actualiy was incorporated in the treaties of 1800 (Art. 4) and 1803 (Art. 5), and the necessity for exhausting remedies into the latter' treaty (Art. 4), for payments were to be made in cases “ appealed within the time necessary.” (See the treaty in French, 8 Stat. L.) The proposition to waive her rights was responded to by France with the proposition that the hostile measures, including the abrogation of treaties, must be receded from; for, of course, if the nations did not now agree that they had been at peace, no indemnities would be due for hostile acts. They must first of all settle what their status had been and was now — peace or war. If peace, what had been done that was of a hostile character' would thus be adjudged to be illegally and piratically done, and indemnities might be due; but if war, the ravages of war give rise to no indemnities. The two nations, disregarding the unauthorized makeshift reported by their respective agents in the second article, adopted the latter alternative — war, and no indemnities due. It had to be called war or piracy on both sides, and the President and Senate, with the concurrence of France, adjudged that it was not piracy, but war. The Chief Justice, Ellsworth, our principal envoy, had said to the President: “Having given your draft of instructions such perusal as the hurry and pressure of a court crowding two terms into one admits of, I remark, with all the freedom you invite, that to insist that the French Government acknowledge its orders to be piratical, or, which is the same, absolutely to pay for depredations committed under them, is, I believe, unusually degrading, and would probably defeat the negotiation, and place us in the wrong. (2 Flauders’ Chief Justice, 236.)
    ' One’s eyes must be shut to all the rights of France as a sovereign, and all the plainest law of nations, and the decisions of our Supreme Court, not to see the legality of the laws passed by France in retaliation for our injuries to her and to force us to fulfill the treaties we had violated and refused to fulfill. The Supreme Court said the nations were in a state of public war authorized by both Governments. One of its reasons for deciding was, that war and only war, could justify the depredations, confiscations, and bloodshed, on either side, and the) honor of both nations required it to be called war. Now, is/it not necessary to establish these eight propositions before-'declaring the condemnation of these ships illegal ? ' /
    (1) That the treaty did not require the crew-list 'when it mentioned the crew-list. /
    (2) That the French court had no right to construe the treaty according to its own understanding of it.
    (3) That the French Government had no^right to pass the retaliatory decree.
    (4) That the French courts had no right to decide whether the French Government had such right under international law.
    (5) That the treaty, though violated by us, was still binding in all its details on France.
    (6) That the treaty dispensed with all proofs except the passport, which it said must be on board.
    (7) That the judgments of prize courts are not exclusive and conclusive against all the world.
    (8) That there was peace.
    Allow all of these eight propositions, and it may be admitted that the condemnation of these vessels was illegal. Deny any one of them, and these cases must fall to the ground. It is said by counsel that the decisions of the French courts as to these captures were always against the Americans. Perhaps international law was likewise against them. They were found violating belligerent rights of France. • But in no less than three out of the four or five cases exhibited here merely to show the jurisdiction of the court of cassation, the supreme court of error in France, the vessels of these Americans were released. But it is said the inferior tribunals at least-always decided against the captured. This is also erroneous, for we have here a list of cases from St. Domingo decided in 1797 and 1799, and out of a little over a hundred captures of suspected "vessels there were thirty-three releases. It is in St. Domingo that the French are charged with being most lawless.
    In the midst of the most bitter war ever waged between France and England, the English courts never in any case disputed the conclusiveness of French prize judgments. It is true that they decided that neutrals were s a veil from danger when recaptured from the French; and so said Napoleon; so said our S'ijipreme Court in 1 Crancli, 1. But Napoleon said that the injustice of the French laws, so far as they affected real neutrals,-was just retaliation as regarded the Americans, for their Jay treaty, and our Supreme Court, in that very case, decided that Frailee and America were enemies and at war.
    The whole world, it is said, are parties to an admiralty cause, and, therefore, the whole world is bound by the decision. So says Judge \larshall. (9 Oranch, 126.) ‘These sentences are admissible and conclusive between the assured and the underwriters as to every fact which they profess to decide.’ (B &P., 20 ) If a ship is condemned as enemy property, whatever ‘ ordinances ’ may be referred to, it is conclusive. (5 East., 155.) If the court comes to the conclusion that the vessel is not neutral,itis quite immaterial through what media it arrived at it. (Lord Mansfield, 2 Taunton, 85.) If infraction of treaty be the ground, the condemnation is legal and conclusive, although, where a treaty required certain documents on the ship, municipal laws were referred to as showing what the treaty required, and although the court ‘coustrued the treaty iniquitously.’ (Lord Ellenborough, 5 East., 99.) If the court, by the aid of the ordinances of its country, reached the conclusion that it was enemy property, it is conclusive. The sent ence is conclusive if based on breach of treaties, however there may nothave been sucha breach. (Id.,* Piggott, Foreign Judgments, 258; 4 Oranch, 433.) Croudson et al. v. Leonard, Johnson, J., delivering the opinion, held: ‘ I am of the opinion t hat the sentence of condemnation was conclusive evidence of the commission of the offense for which the vessel was condemned.’ In 6 Mass. Reports, 277, John Baxter et al. v. The New England Marine Insurance Company, it was held: In an action upon a policy of insurance, the sentence of a foreign court of vice-admiralty, condemning the ship insured for a breach of blockade is conclusive evidence of the fact of such breach of bloclc ade. (8 Term, Rep., 192; id., 434 ; 2 Douglas, 575 ; 6 Bee’s U. S. Rep., 165, affirmed on appeal; 7 Term Rep., 681; 2 Shower, 232; 3 B. & P., 201; id., 499; 2 Taunton, 7, 35; 8 Mass., 536.)
    The honorable Chief Justice inquired wheth er all the cases cited as to conclusiveness did not apply to priv ate parties, as distinguished from sovereign nations.
    The litigants were private parties in these cases; but Chief-Justice Ellsworth and our other envoys claimed no such distinction when they asked the Government of France to waive the principle. The two nations,when they negotiated the treaty of 1800 (Art. 4) and the treaty of 1803 (Art. 5), recognized that the principle applied between nations. We have-only to look at the reason for this principle. What is the reason? Harmony, peace, concession to the universal welfare of mankind ; that which in our municipal cases is called the policy of the law. It is the policy of the law of nations. If the political department of one nation could erect itself into a court of appeals to reverse the decisions of the supreme court of another nation having by international law jurisdiction of the parties and subject-matter, what litigant could ever be satisfied until his country had become involved in war ? (Reference is made on this point to Douglas, 619 and 617, and treaties there cited. Also, to the treaty between Great Britain and Denmark, July 11, 1670, article 37; treaty between Russia and Great Britain, October, 1801, article 2; treaty between Louis XIV and Groat Britain, 1677, article 12; treaty between the Netherlands and Charles II of England, 1647, article 12 ; same parties, 1668, article 16. Also, Piggottfs Foreign Judgments, 249; Vattel, b. 2, ch. 7, § 85; 9 Crunch, 126; Campbell v. Mullett, 2 Swanston, 576,577, 578,579, 584,585; also, article 5, treaty of the United States and France 1803.)
    The treaties referred to recognize that the jurisdiction of prize belongs exclusively and finally to the capturing Government. For instance: “ If the King of France shall complain of the unjustness of sentences which have been given concerning the ships or merchandise taken at sea (or of the wrong interpretation of the treaty by the courts), the King of Great Britain shall forthwith commission under his great seal nine of his privy counsel to adjudge such matters and to confirm or revoke these sentences.” So we see that according to the theory of these treaties unless the Government of the captor does not choose to reverse the decision of his own courts their decisions stand conclusive against the other nations. Such is the law of nations as to prize judgments. This does not prevent a nation from claiming anything it may desire or another nation from granting what is claimed if it sees fit.
   Dayis, J.,

delivered the opinion of the court:

This case, with others like it, was fully argued at the last term, and after careful study and industrious conference an opinion was delivered upon the general principles applicable to the claims as a class, while final and detailed findings were delayed, at the defendants’ request, until after the summer recess. During this recess the law officers of the Government, diligently and jealously guarding the interests intrusted to them, have carefully studied not only the facts of the several cases, but have re-examined the general principles applicable to the claims as a class — principles understood to have been finally settled, so far as this court is concerned, by the former decisions.

The defendants now move for a rehearing, and somewhat contrary to the usual practice, but in furtherance of the substantial ends of justice, a full, able, and learned argument, occupying nearly two weeks, has been had, in which all the questions heretofore considered have again been exhaustively discussed. Thus, upon a motion for permission to reargue the case, it has in fact been reargued, and in deciding the motion we act with all the light we should have received had the more technical course been pursued of first allowing the motion and then hearing-the reargument.

The learned Solicitor-General, who has personally appeared with the assistant attorney of the United States who so competently conducted the defense of these claims, takes as the text of his argument certain suggested conclusions of law, twenty-five in number, many of which may be readily admitted, either standing alone or in the connection in which they are used, without leading to a result different from that already reached by this court; while considered as a whole they form the successive links of a chain of argument which, if perfect, defeats all the claims submitted under the act of Congress.

Many of the difficulties surrounding these cases will disappear under the touchstone of the jurisdictional act, for it must always be remembered that we are not now to decide in accordance with the general statutes giving us exclusive jurisdiction of actions between the citizen and his Government founded ®n contract, nor yet under the special jurisdiction conferred by such laws as the “ Bowman Act,” by which, in aid of Congress, we report facts to that body or its committees, and facts and law to the Executive Departments for their “ guidance and action”; nor under the jurisdiction given by section 1063 of the Revised Statutes, which authorizes us'to proceed to final judgment in claims of a certain nature transmitted to us by the heads of the principal Executive Departments. In all these cases we sit as a court bound to administer the law found in the Constitution, statutes, and common law of the United States as interpreted by the Supreme Court, and, so far as we have yet seen, not one of the spoliation claims could have the slightest pretense of a successful result were the investigation to be measured by the standard set for us in other causes. It cannot be presumed that Congress, in passing the act of 1885, with full knowledge of the law and facts, intended an empty form; therefore it follows that they desired us not only to examine these claims, but to examine them in the light of some rule different from that upon which we must ordinarily proceed.

The statute says that those citizens or their legal representatives who had “valid claims” of a specified class upon the French Government, arising out of certain illegal acts committed prior to the ratification of the treaty of 1800, may apply to this court (§ 1); we are then to determine the validity and amount of these claims “ according to the rules of law, municipal and international, and the treaties of the United States applicable to the same,” but we cannot enter judgment; on the contrary, after the hearing we may only report to the Congress such conclusions of fact and law as in our opinion may affect the liability of the United States for these claims (§§ 3 and 6), and this report is binding on neither the claimant nor the Congress (§6).

The first question presented, then, is as to the validity of the claims against France. This is an international question not within the scope of ordinary judicial inquiry, and is to be measured by rules of law well known, thoroughly recognized, and often enforced, but which in the very nature of things are not, in the absence of special legislative authority, presented to, argued before, or passed upon by the judicial departments of Governments. These rules of law relate to the rights and obligations of nations, not to the title to property, nor to the rights of individuals between themselves, nor yet to the rights of individuals against their own Governments.

While many of the propositions of the defense are in the abstract sound, they rest upon the basis that these claimants are prosecuting a legal right in a court of law acting under the usual common-law restrictions of such a tribunal sitting as a subordinate agent of the state with strictly defined procedure and jurisdiction. So far as power is concerned this court is not so sitting in these cases; “judicial power is the internal or civil branch of executive power exerting itself under such checks and controls as the legislative power has subjected it to” (11 Rutherforth, 59); those checks and controls are well defined and well understood, and are such as operate to defeat in judicial tribunals diplomatic claims founded upon international right.

We are for the present, to a limited degree, absolved by express act of the legislature from these checks and controls.

That is, we are to aid the political department of the Government, by its direction, in the disposal of contentions which arise from past international transactions, and while the claims of individuals now before us are not, from a judicial point of view, legal rights — that is, they do not constitute causes of action — they may be none the less rights; that is, they may be founded on law but not enforceable in a court of law.

We do not intend to assume any legislative function or to determine any abstract right, for our power is fixed and defined by the act of Congress, which authorizes no such course, but which does require something more than a bare opinion that there can be no recovery on these claims in the courts; that was known before the statute was passed, and the legislature have instructed us by that statute to advise them not as to the law enforceable in courts of law, not as to abstract rights, but as to the law enforceable within their own higher jurisdiction.

We have already held that the depredations made by France upon our commerce were illegal, and notwithstanding the able argument of the defense, sustained by the results of most industrious investigation, we do not see reason for changing this conclusion. The quotations in our previous opinion show that the Government of the United States uniformly insisted upon the illegality of the conduct of France and never failed to demand redress; they show that France admitted the principle of the American contention; that Spain paid claims of this class ; that England did the same, and that by the principles of the law of nations aside from any definite compact such as that of 1778, the injuries to our commerce afforded good foundation for diplomatic demand. Upon the second branch of the case we held, and in support of the position cited copiously from the contemporaneous negotiations and instructions of the American Secretaries of State, and from the correspondence and journals of the American ministers charged with the protection of American interests, that by the cancellation of the second article of the treaty of 1800 the United States set off the spoliation claims against those claims which France had against us, claims which our representatives thought of so much gravity and of so much value as to authorize an offer, refused by France, of many millions of francs for a release.

It seems unnecessary to repeat those voluminous citations, or to add to them, from the mass of correspondence which we have read, extracts which would be merely cumulative. We have carefully re-examined the question in the light of the re-argument, and nevertheless adhere to the conclusions reached last term after exhaustive discussion by counsel and patient and laborious investigation by ourselves, that these claims (as a class) were valid obligations from France to the United States, that the latter surrendered them to France for a valuable consideration benefiting the nation, and that this use of the claims raised an obligation founded upon right, and upon the Constitution (which forbids the taking of private property for public use without compensation), to compensate the individual sufferers for the losses sustained by them.

We do not decide nor have we attempted to decide that the conduct of the Government after the Eevolution and prior to the treaty of 1800 was or was not wise, proper, or justifiable, questions which are within the domain of the historian, and have not been submitted to us; we advise, whether in performance of their public duties, and in protection of the commonwealth, and in carrying out the directions of those having the right to give them, or in fulfillment of the powers and obligations conferred and imposed by the Constitution and laws, the statesmen of that period took such action in relation to private rights as raised an oblig'ation on the part of the Government to compensate the citizen.

We are to see whether the claims urged on France were valid, whether each particular claim brought before us is one of the class defined in the statute, whether it was valid in law against France, and whether the United States became, by their action in 1800 and 1801, liable over to the individual.

The Government again urges that, as-there was war between the United States and France, the seizures were justifiable. This point we have so fully discussed in the opinion delivered at the last term that now it seems necessary only to sum up our conclusions and to consider one or two incidental points pressed with particular energy by the defense at this argument.

There were what were called by some “ hostilities,” by others “ differences,” by Congress “the system of predatory violence” (1 Stat. L., 578), by Justice Patterson “ a qualified state of hostility,” “war quoad-hoc," and by Justice Chase “ limited partial war.” The executive department said the conduct of France would have justified a declaration of war, but the United States, “ desirous of maintaining peace,” contented themselves “ with preparations for defense and measures calculated to defend their commerce” (Doc. 102, p. 561), while the United States ministers, speaking of the American statutes, wrote that “they did not even authorize reprisals upon [French] merchantmen, but were restricted simply to the giving of safety to their own till a moment should arrive when their sufferings could be heard and redressed.”

Congress did not consider war as existing, for every aggressive statute looked to the possibility of war in the future, making no provision for war in the present, and France, our supposed enemy, absolutely denied the existence of war. So then, the legislative, judicial, and executive branches of our Government recognized no war, no public solemn war, as existing, and the opposing party denied the fact.

It has been urged that the compact of 1800 was a treaty of peace; but we do not agree with this contention, for reasons which we give further on, after first considering the subordinate suggestion made relation to the caption of that treaty as found in print.

Curiously neither of the originals, that supposed to be in the custody of France nor that supposed to be in the Department of State, is obtainable. That belonging to this Government long since disappeared, and we are informed that a like fate-has befallen the French copy. We are therefore forced to turn to the copies in print in various compilations of treaties to see what assistance can be obtained from a careful comparison of them. No material difference appears anywhere but in the caption, and there we should expect to find it, as the caption is not part of the treaty, and is usually drawn to suit the taste of the editor. The caption in the Revised Statutes runs as follows:

“ Convention of peace, commerce, and navigation with France, concluded at Paris September 30, 1800; ratification advised by Senate, with amendments, February 3, 1801; ratified by President February 18, 1801; ratified by First Consul of France, with Senate’s amendments, &c.”

Marten’s French collection of treaties contains the head-note, Convention entre la Republique Fran§aise et les Etats-Unis d’Amérique, signée le 30 Septembre, 1800,” and the editor says he had not a copy from the original treaty, but relied upon another publication. Le Clerc has a brief caption containing the word u peace.” The caption in the Bancroft Davis edition of treaties entitles the compact a Convention between the French Republic and the United States of America,” and gives the dates of signature, exchange, and proclamation; while the caption in volume 8 of the Statutes at Large, prepared in 1846, runs simply as follows: “ Convention between the French Republic and the United States of America.” It should be noticed as to this copy that the letter from the committees of Congress found at the beginning of volume 8 states that they learn that every law and treaty has been carefully collated with the originals in the Department of State.”

In Mr. Adams’s message, dated December 15,1800, transmitting the treaty to Congress, the head-note is exactly as in volume 8 of the Statutes (2 F. R., 295).

No inference, therefore, can be drawn from the caption, and the nature of the treaty must be gleaned from its contents, for if it concludes a war that fact will necessarily appear in some form as it does in the treaties of 1783 and 1814 with Great Britain, and in the treaty of 1848 with Mexico. The object of the treaty is stated to be a termination of the “ differences ” between the two countries, not of the “ war ” nor even of the £l hostilities ” alleged here to have existed between them. Next it should be observed, and this is a vital distinction, that the treaty is of limited duration; it is to be in force for eight years only. Article Y speaks of a “misunderstanding”; and in the twenty-seven articles of the agreement, which cover the many different subjects at that time usually found in a treaty of amity and commerce, there is nothing to indicate that in the opinion of the parties there had been a public solemn war or that they were making a treaty of peace.

We are again cited to Bas v. Tingy (4 Dallas), a case which we considered very carefully in our previous opinion and from which we made very full quotation, holding that it decided the state of affairs under discussion to constitute partial war limited by the acts of Congress. The opinions of the Supreme Court speak very clearly as. to thé relations of the nations, but it is well to bear distinctly in mind that the court was dealing not so much with broad principles of international law as with the interpretation of statutes. Tingy claimed salvage for the rescue of the Eliza from a French privateer, and this claim he based upon the seventh section of the- Act March 2, 1799 (1 Stat. L., 716).

The act is eu titled “An act for the government of the Navy of the United States,” and the seventh sectiou makes provision for salvage to naval vessels for American vessels retaken from France; in construing this statute the court referred to the act of June 13,1798, as explanatory of the relations between the United States and France. This latter act being “An act to suspend the commercial intercourse between the United States and France, and the dependencies thereof,” does not in any way lead to the inference that public solemn war existed, for if such war existed a formal suspension of commercial relations would be unnecessary, and the contents of the statute negative the inference of war especially in the provision that no French vessels “ armed or unarmed, commissioned by or for or under the authority of the French Eepublic, or owned, fitted, hired, or employed by an3r person resident within the territory of that Eepublic, or any of the dependencies thereof, or sailing or coming therefrom, excepting any vessel to which the President of the United States shall grant a passport * * * shall be allowed an entry or to remain within the territory of the United States unless driven there by distress of weather or in want of provisions,” and these distressed vessels are to be allowed to provision and refit (§ 3), something certainly not permitted either in time of war or reprisal.

The Act June 28,1798 (1 Stat. L., 574), also considered by the court, was intended as an addition to that of June 13,1798 (1 Stat. L., 565), and makes provision as to the amount of salvage to be received by American war vessels capturing French armed vessels during what the latter act describes as the “ aggressions, depredations, and hostilities ” encouraged and maintained “by the Government of France,” and which it does not describe as war.

The decision of the Supreme Court therefore goes to this extent and no more, that for the purpose of a recovery -of salvage France was an enemy to the extent the acts of Congress prescribed.

It has been urged that the treaty of 1800 was a solemn adjudication of the claims adverse to this Government, but we are of opinion not only that this position is negatived by the treaty itself, but that the negotiations which preceded that contract, and which may very properly be referred to for explanation if there be ambiguity in the document, do not support such a contention. Those negotiations having been commented upon by us heretofore, we need not now repeat them, while as to the expunged second article of the treaty, that upon which this contention hangs, it is sufficient to note the statement that as the ministers were “ not able to agree respecting ” the' treaties of 1778 and 1788, nor upon the indemnities “ mutually due and claimed, the parties will negotiate further on these subjects at a convenient time.” Meanwhile the treaties are to have no effect and the relations of the countries are to be governed by the treaty of 1800.

The claims made by France, for which the United States offered millions of francs for release, were national, and were based upon the provisions of the treaties of 1778. The claims for indemnity which we had constantly urged, and whose payment Pickering demanded as an ultimatum, were what are known as the “ spoliations claims.” In the entire negotiation, as we have shown in our former opinions, French claims based upon treaty obligations, past and future, were set up against American claims for illegal seizures, condemnations, and confiscations.

To be sure, Pickering makes a passing mention of national claims on the part of the United States, adding that, as national claims may probably be less definite than those of individuals, and consequently more difficult to adjust, “ national claims may on both sides be relinquished.” (Doc. 102, p. 566.) An examination of the negotiations will show that such claims on our side were not pressed, while on the French side they were strongly urged.

No where is the contention more concisely formulated than in the communication of J. Bonaparte and his colleagues to the American Commissioners, wherein the French ultimata are set forth in tiiis form: “ Either the ancient treaties, with the privileges resulting from priority and the stipulation of reciprocal indemnities, or a new treaty assuring equality without indemnity.” (Doc. 102, p. 618.)

“At the opening of the negotiation,” said the Secretary of State to the American ministers, “ you will inform the French ministers that the United States expect from France, as an indispensable condition of the treaty, a stipulation to make to the citizens of the United States full compensation for all losses- and damages which they shall have sustained by reason of irregular or illegal captures or condemnations of their vessels and other property under color of authority or commissions from the French Bepublie or its agents ” (Doc. 102. p. 562); and he closed this instruction with several points “to be considered as ultimata,” the first of which was: “ That an article be inserted for establishing a board, with suitable powers to hear and determine the claims of our citizens for the causes herein-before expressed, and binding France to pay or secure payment of the sums which shall be awarded,” while the second point prohibited recognition of the old treaties.

There never was a substantial retreat on either side from these absolutely diverse positions, although there was considerable vacillation, until finally, in a spirit of patriotism, the representatives of the United States, abandoning Mr. Pickering’s ultimata, consented to leave the question still open, as it is found in the second article of the treaty. That article) in terms,, admits that there existed differences as to the treaties of 1778, and in terms it states that indemnities are “ mutually due and claimed.” If indemnities are mutually “ due” and indemnities are mutually “claimed,” the instructions and the negotiations prior to the treaty should show what those “ due” and claimed” indemnities are. They do show that upon one side they were claims for national indemnity under treaty obligations; on the other side,'claims for indemnity for spoliations. As the treaty states that indemnities are “ claimed,” and as it states that indemnities are “ due,” we cannot agree that it operates as an adjudication of those claims upon which the indemnities are founded.

The jurisdictional act also negatives this assumption in its direction that we shall examine valid claims arising out of certain acts committed prior to the ratification of the treaty of 1800, thus negativing so far as this court is concerned any possible final adjudication by that international agreement. The statute instructs us not to investigate claims now valid against France, or claims which citizens now have against France, but valid claims which citizens “had” against France and which arose out of certain illegal acts committed prior to the treaty’s ratification.

By the action of the President and Senate on the yne side, and of Napoleon on the other,' the second article was expunged from the treaty upon agreement that “ the two states renounce the respective pretensions which were its object.” Thus, for the purpose of quieting the difficulties and dangers flowing from the treaties of 1778, to avoid the French claims, from which a release had been asked at an offered price of many million francs, to save the young Republic from internal dis.-sension and from danger from without, the American authorities surrendered to France the claims for spoliations upon which up to that moment they had most steadily and most strenuously insisted.

The alleged reprisals committed by this country upon French commerce were most limited in their nature, and hardly amounted to more than is allowed by the natural law of self-defense — that law which, by not obliging us to part with our lives, our limbs,.or orir property, allows us to defend our persons and our goods.

The reprisals were authorized and defined by acts of Congress, the first of which was passed iu June, 1798, and the last in January, 1799.

The Act June 25, 1798 (1 Stat. L., 572) authorized “the defense” of merchant vessels against “French depredations,” and to that end permitted the merchantman to oppose search, restraint, or seizure attempted by an armed French vessel, permitted the merclianr.man to repel by force any assault by such a French vessel, authorized him to capture such an assaulting vessel, and permitted the merchantman to retake any other American merchantman captured by any armed French vessel.

The second section of this act, which provided for salvage, refers to the case of the capture of a French “armed” vessel, from which an assault or other hostility “shall be first made”; and section 3 requires a bond from armed merchantmen that they shall commit no “unprovoked violence” against the vessel of any nation in amity with the United States. Finally, the sixth section directs that when France shall stop the “lawless depredations and outrages hitherto encouraged and authorized by that Government against the merchant vessels of the United States, and shall cause the laws of nations to be observed,” the President shall instruct the merchantmen to submit to search and to refrain from violence.

As to the next act, passed, three days later (1 Stat. L., 574), it is only necessary to note that recaptures were to be restored after salvage paid the recaptors, nothing going to the Treasury. The 9th of July following an act was passed to “protect the commerce of the United States,” which authorized the President to give private armed vessels the same license and authority to take armed vessels of France, and to recapture American vessels, as public armed vessels of the United States had by law (1 Stat. L., 578, § 2); “armed” French vessels captured to be absolutely forfeited to the capturing vessel, which should receive also just and reasonable salvage on all recaptures. (§§ 5,0.)

The license and authority given the public armed vessels of the United States are found in the first section of this act of 9th July, 1798, and also in a prior act entitled “An act more effectually to protect the commerce and coasts of the United States,” approved May 28, 1798 (1 Stat. L., 561), which permitted the seizure only of such French armed vessels as had committed, or were hovering on our coasts for the purpose of committing, depredations on vessels belonging to citizens of the United States, and also permitted the recapture'of American vessels seized by the French. The act of July went further than this, and authorized the President to instruct the commanders of public armed vessels to “subdue, seize, and take any armed French vessel which shall be found within the jurisdiction of the United States, or elsewhere on the high seas.”The authority, therefore, given to armed merchantmen by this statute was to subdue, seize, and take any French “armed” vessel, and to recapture any American vessel.

These statutes seem to us not only defensive in their character, but also marked by self-restraint and calm judgment. Notwithstanding the persistent attacks by France upon the American mercantile marine, no permission is given in this legislation to injure French commerce; armed vessels only are to be seized, and American vessels may be recaptured; peaceable French merchantmen may pursue their voyages unmolested.

A system of reprisals goes further than this, for it is based upon the principle of compensation, and is aggressive, not defensive, in spirit and intent.

“Beprisals [says Vattel, lib. 2, p. 342] are used between nation and nation to do justice to themselves when they cannot otherwise obtain it. If a nation has. taken possession of what belongs to another; if it refuses to pay a debt, to repair an injury, to make a just satisfaction, the other may seize what belongs to it and apply it to its own advantage, till it has obtained what is due for interest and damage, or keep it as a pledge until full satisfaction has been made. In the last case it is rather a stoppage or a seizure than reprisals, but they are frequently confounded in common language.”

Dr. Woolsey says reprisals consist in recovering what is our own by force, then in seizing an equivalent. We do not attempt to lay down any general rule of law on this question of reprisals, but a study of the authorities leads to tire conclusion that the action is affirmative and aggressive in character, having for its object compensation. The essence of reprisals has been said to be security — that is, the seizure of property for protection until just claims are settled, but we do not see that the principle of compensation is thereby changed, as the seizure of property for security must be directed by an effort to obtain security sufficient in amount to provide compensation should the demand for redress be unsuccessful.

The statutes we have cited have no such object; they are not aggressive in tlieir provisions or in the power they give, but entirely defensive, except in the instance of seizing armed vessels or retaking captured American vessels. The aim of the statute is defense of our merchantmen, not depredations upon the commerce of France, nob compensation to the United States for losses already incurred, not security for demands heretofore made, but protection and safety in the future. It seems to us, therefore, that these acts lack the essential elements of statutes of reprisals. Two suggestions occur to us in concluding this point. If there were, a state of war or a state of reprisals existing, wliy should distressed French vessels be allowed to refit and provision in our ports as they were by the express provisions of the Act January 30, 1799 (1 Stat. L., 614) ? The Government of the United States could not have considered that it was at war, or that a state of reprisals existed, for the instructions of Mr. Pickering, the Secretary of State, and the mouthpiece of the Government, entirely negative such a supposition. (Doc. 102, pp. 561 et seq.)

In the face of these statutes the seizure of a merchant vessel cannot be justified on the one ground that she was armed; and more especially is this true as to seizures during the period when these claims arose, a period when, to guard against the pirates of the Caribbean, of the Malay Archipelago, or of the Algerine coast, it was customary for merchant vesssls to carry ijome armament.

“The"laws of neutrality and nations, in no instance that I know of [says Judge Bee, in 1795, while holding the District Court of South Carolina], interdictneutral vessels from going to sea armed and fitted for defensive war. All American India.men are armed, and it is necessary they should be so. * * * When the wisdom of Congress substituted an embargo for a declaration of hostilities, preparations of this sort might have been seen in every State in the Union. From the instructions and circular letter to the different collectors, it was clear that the vessels of the belligerent powers alone were comprehended in the restrictions. Even they might arm for defense; and if, as respected French vessels, it should appear doubtful whether their equipment was applicable to war or commerce, such equipment was declared lawful.”

Each case before the court must of course be examined separately upon the facts peculiar to it, and it is not impossible that such facts may be shown as to some of the private armed vessels of the United States as justified their seizure and condemnation.

The vessels whose cases are now decided were either unarmed or were armed for strictly defensive purposes.

The jurisdictional act requires us to inquire into - illegal con-detonations, and it is urged on behalf of the defendants that all condemnations by the French courts are final and conclusive upon this court if the French court had jurisdiction. Many citations are made in support of this contention, among them the case of Baring and others v. The Royal Exchange Assurance Company (5 East., 99 et seq.), which may be taken as a fair illustration.

The American ship Eosanna, insured by the defendants, was captured and condemned by the French, whereupon plaintiffs sued on the policy and recovered. Lord Ellenborough, Ch. J., interrupting the argument, said:

“Does not this [French] sentence of condemnation proceed specifically on the ground of infraction of treaty between America and France in the ship not having those documents with which in the judgment of the French court the American was bound by treaty to be provided ? I do not say that they have construed the treaty rightly; on the contrary, suppose them to have construed it ever so iuiquitously; yet, having competent jurisdiction to construe the treaty, and having professed to do so, we [the court] are bound by that comity of nations which has always prevailed amongst civilized states to give credit to their adjudication where the same question arises here upon which the foreign court has decided. After arguing for hours, we must come to the same conclusion at last, that the French court has specifically condemned the vessel for an infraction of treaty which negatives the warranty of neutrality. Then, having distinctly adjudged the vessel to be good prize upon a ground within their jurisdiction, unless we deny their jurisdiction, we are bound to abide by that judgment. Whenever a case occurs of a condemnation by a foreign court on the ground of ex parte ordinances only, without drawing inferences from them to show an infraction of treaty between the nation of the captors and captured, and referring the judgment of the court to the breach of treaty, I shall be glad to hear the case argued, whether such ordinances are to be considered as furnishing rules of presumption only against the neutrality or as positive laws in themselves, binding other nations proprio vigoreP

The decision of the English court, then, goes to this extent, that in an action between individuals, the decree of the French court which had jurisdiction is final; so would it also be final as to the vessel, and the purchaser at the confiscation sale could rest upon the decree as good title against all the world.

But all this does not affect the position of the United States Government against the Government of France.

Lord Ellenborough says that no matter how iniquitous the construction given the treaty by the French court, he, as a judge, is bound to follow it. But so is not the-Government of the United States. That Government could have objected either that the court was corrupt, or that there existed no treaty, or that there had been manifest error in construing it. All such questions may be outside the right of a court to consider, but they are within the right and form part of the duty of the political branch of the Government. If the French court, acting within its jurisdiction, construed the treaty iniquitously, the courts might not have power to remedy the wrong, but the owner had a right to appeal to his Government for redress, and that Government, when convinced of the justice of his complaint, was bound to endeavor to redress it.

The decree is an estoppel on the courts, but it is no estoppel on the Government; in fact, the right to'diplomatic interference arises only after the decree is rendered. Of course, precedents for cases of this kind are not to be found in the reports of courts, for no such case can, in the nature of things, come before a court unless by virtue of a special and peculiar statute, such as that under which we now act; but diplomatic history is full of them.

Butherforth (Institutes, vol. 2, ch. 9, p. 19), speaking of the right of a state to proceed in prize, says: •

“This right of the state to which the captors belong to judge exclusively is not a complete jurisdiction. The captors, who are its own members, are bound to submit to its sentence, though this sentence should happen to be erroneous, because it has a complete jurisdiction over their persons. But the other parties in the controversy, as' they are members of another state, are only bound to submit to its sentence as far as this sentence is agreeable to the law of nations, or to particular treaties, because it has no jurisdiction over them in respect either of their persons or of the things that are the subject of the controversy. If justice, therefore, is not done them, they may apply to their own state for a remedy; which may consistently with the law of nations give them a remedy either by solemn war or by reprisals. (See Dana’s Wheaton, 391.)”

This brings us naturally to another point, admitted as a •general principle, that appeal should be prosecuted to the court of last resort before there can be diplomatic intervention.

The exceedingly able British-American Commission which, sat in Washington in 1872 not only unanimously decided that they had jurisdiction in prize cases in which the decision of the ultimate appellate tribunal of the United States had been had, a conclusion in which even the agent of the United States concurred, but also that they had jurisdiction when the claimant had not pursued his remedy to the court of last resort, provided satisfactory reasons were given for the failure to appeal. (Papers relating to the Treaty of Washington, vol. 6, pp. 88-90.) To this last conclusion the American Commissioner dissented; but even he held that a misfeasance or default of the capturing Government, by which means an appeal was prevented, was sufficient to excuse the failure to appeal. (Id., 92.)

The rights of the prize courts are the rights of the capturing-state. These courts are its agents, deputed by it to examine into the conduct of its own subjects before becoming answerable for what they have done, and the right ends when their conduct, has been thoroughly examined. Therefore the state has a right to require that the captor’s acts be examined in all the ways which it has appointed for this purpose, and on this principle is founded the doctrine that the complainant, unless he exhaust his appeal, shall be held to confess the justice of the decision. This presupposes, first, that there are appellate courts; second, that they are open to the complainant freely and honestly. The captor has no right to insist for his own protection upon the fulfillment of a form which he by his own acts preven s.

There is also a distinction, not often clearly drawn, between the validity of a claim per se and the right to enforcement. The justice of the claim is founded upon the injustice of the sentence. The appeal does not affect the merits of the claim; it does not palliate or destroy any wrong done; but it is simply a course provided for the captor’s protection, that he may fully examine into the acts of his own agents, through his other agents, the courts.

“ The whole proceeding, from the capture to the condemnation, is a compulsory proceeding in invitum by the state in its political capacity, in the exercise of war powers, for which it is responsible, as a body politic, to the state of which the owner of the property is a citizen.” (Dana’s Wheaton, note, 18G.)

Therefore the capturing state may waive such a demand, and not insist upon exhausting its right to further investigation, and may waive it by failing to provide an appellate tribunal, or by preventing recourse to it, or in any other way which shows an intention not to insist upon this right of examination; but appeal or no appeal, the validity of the claim is founded upon the injustice to the claimants.

All writers lay down the principle that appeal should be taken from the inferior to the superior tribunal before resort by the injured Government to measures of redress; but. this principle is always coupled with the extreme measures of war and reprisals (see Rutherforth, supra; Grotius, bk. 3, ch. 2, §§. 4, 5), and there is no assertion in the writers that illegal capture necessarily does not found an international claim even when appeal has not been taken.

It was notorious that justice could not be obtained in the French prize tribunals in existence at the time of those seizures. Mr. Pickering, writing to Mr. Pinckney in April, 1797, said :

“The report of Mr. Mountflorence, which you transmitted, shows that the merchants in the ports of France who constitute the tribunal .of commerce in which our captured vessels are tried and, on the most frivolous and shameful pretenses, condemned, are often, if not commonly, owners of the privateers on whose prizes they decide.” (Doc. 102, p. 165.)

Consuls were at one time forbidden to appear before the tribunals in defense of absent owners. (Prizes Maritimes, vol. 2, pp. 317 et seq.)

Soon [says Cauchy], upon the occasion of the rupture with England, the signal was given for privateering. The French gave to it all that could encourage speculations half mercantile, half warlik; they put at the disposition of the owners part of the sailors of the fleet, even to strangers and neutrals ; they opened to them the storehouses of the state; they abandoned to the captors the total product of the captures, and they joined to that in certain cases premiums and rewards. They did more; they abolished with the offices of the admiralty the tribunal of prizes, and, in order to find judges more ready to sanction captures, they conferred upon the tribunals of commerce and of the district the judgment of these matters.”
“ It was erroneously that they had represented the benefits of privateering as a source of riches and public prosperity. In order to make the fortunes of four or five ports, the privateers were reducing the whole of France, a country by nature agricultural aud industrial, so that she had neither raw materials for manufactures nor supplies for her navy, nor outlets for her products, for they kept away from our ports the neutral ves-seis which could alone supply the total absence of vessels sailing under the French flag.”
“On the other hand, were not the relations of the Republic with foreign Governments at the mercy of simple judges of commerce or of district, imprudently invested by the law with the terrible right to put France in a state of war against the wish and knowledge of her Government ? The Directory concluded that privateering, instead of receiving more extension and favor, ought to be restrained and regulated by law.”
“But this progress, forseen under the Directory, was not to be accomplished until after its fall. (Le Droit Maritime International, Eugene Cauchy, Paris, 1862, vol. 2, pp. 317, 318, 323-325.)
“The council of prizes, which was the supreme court of appeal in prize matters, was abolished in 1793. The 2!!th Germinal, year IV, the Council of Five Hundred passed a resolution thus expressed: ‘The appeals from the tribunals of commerce in matters oft prize shall be carried to the tribunals of the departments.” * * * Carried to the Council of the Ancients; this resolution was not opposed, and the 8th Floréal, year IV, it was converted into law. One only remembers too well (adds M. Merlin) how disastrous were the results of this strange legislation. The tribunals paid no attention in their decrees to the relation of France with foreign powers, whence arose numerous and pressing claims.
“However, to palliate the political inconvenience that might flow from thus vesting ordinary tribunals with the cognizance of maritime prizes, it was thought sufficient to authorize the commissaries near the civil tribunals to refer to the Government those matters which necessitated the interpretation of treaties, and in which the judgments of the tribunals might compromise the rights .of a friendly or neutral power; but experience was not long in demonstrating that this palliation was a vain remedy, and that the legislation ought to be deeply modified, the tribunals having shown the greatest hostility against the measure, some determining in spite of it the causes which the commissaries had referred to the Executive Directory; others denying to the commissaries of the Government the right to judge alone of the propriety or necessity of the reference. Matters had come to such a point that in the year VIII the minister of justice, Cambacéres, being instructed by the Consuls as to the amendments to be made to the legislation as to prizes, was authorized to say ‘ that privateering had become a system of brigandage, because the laws which had been applied to it were insufficient and bad; that they had heard complaints raised in all directions by merchants and foreign ministers, and that nevertheless the Government, convinced of the justice of these complaints, had always been without power to do right.’” (Traité de Prises, Maritimes pas Pistoye et Du-vardy, Paris, 1858, vol. 2, pp. 157, 158.)

The form and expense of appeal were useless, for it was not denied that the adjudications below were in accordance with French ordinances, while it was contended that they were in violation of the rights of neutrals, measured either by treaty provision or by the precepts of the law of nations. Municipal law is not a measure of international responsibility, but it is binding within the jurisdiction of the state upon all its subordinate agents, including the courts. The decree in one of the cases before us, which was appealed to the civil tribunal, shows the following as the grounds for affirming- the condemnation below:

“The tribunal * * * considering the rules of 1704,1744, 1778, prior as well as subsequent to the treaty between France and the United States of America, emphatically demand that all foreign ships shall be furnished with a rile, authenticated by the public officers of the neutral port whence they have set out, under pain of being good prize. Considering' that the execution of these regulations has been ordered by article 5 of the law of the 14th of February, 1793; considering that a ship, which cannot be reputed neutral on account of a lack of papers sufficient to prove its neutrality, cannot be regarded but as an enemy, and, being so, its cargo is to be confiscated, according to the terms of article 7 of the ordinance of the marine of 1681 — title prize — says that it has been well judged by the judgment which has been appealed from, ami orders that it shall have its full and entire effect.”

So it appears that questions of treaty or international law were not ruled upon, the court being guided alone by the statutes of France. In the face of precedents of this kind an appeal was a vain and expensive form, as an affirmation of the judgment -below necessarily must follow. The cases were class cases, the condemnations (so far as we have yet seen) proceeded upon substantially the same grounds, and one appeal was decisive of all similar cases. The state’s right of investigation had therefore, in effect, been satisfied when it had affirmed in one case the legal principles applicable to many others presenting the same facts.

There were appeals also to the court of cassation, which were decided adversely to the claimant — necessarily so decided when the character and duty of the court are understood.

When the jurisdiction of the court of cassation is invoked there must take place a preliminary argument to determine whether the court under the particular facts of the case has or has not jurisdiction. This settled in the affirmative by one of the divisions of the court known as the chamber of requests, the cause is referred either to the chamber of civil causes, or to the chamber of criminal causes, and the jurisdiction of these chambers is simply to secure uniformity in the construction of the statutes. Merlin says :

' “ As resource to the cassation is only an extreme remedy which has no other object than the maintenance of the legislative authority and of the ordinances, it cannot be made use of under the simple pretext that a case has been ill-judged in the main.”

The opinion of the council of state, dated January 18, 1806, speaking of the court of cassation, says :

“If the forms have been violated [below] there is no judgment, properly speaking, and the court of cassation destroys an irregular decree. If, on the contrary, all the forms have been observed, the judgment is reputed to be truth itself. * * * If, then, a decree should be in formal opposition to a written provision of the law, the presumption of its justice disappears, for the law is and ought to be the justice of the tribunals; wherefore the court of cassation has the right to annul in this case the decrees of the courts. (See Merlin, Eépertoire de J urisprudence.)”

What, then, could be the object of an appeal to the court of cassation when the court below had not misinterpreted the French law, especially as such an appeal would in no event have suspended the execution of the judgment ? (Code, art. 16, title, Courts and tribunals (1790), Tripier’s edition, 1865.)

The condition of affairs in regard to French courts is well illustrated by the letter from Pinckney, Marshall, and Gerry to the Secretary of State (October 22, 1797, Doc. 102, p. 467), wherein they quote their advocate as saying: “ It is obvious that the tribunal have received instructions from the officers of the Government to hasten their decisions, and that it was hardly worth while to plead, for all our petitions in cassation would be rejected.”

In the colonies matters were still worse than in France (Tuck’s Eeport, and citations therein, EL B. Ex. Doc. 194, 49th Cong. 1st sess.) and appeals were much more difficult. After the decision of a court, organized in some instances for the purpose of condemnation, by an officer of the Government, himself interested in privateers, or in some instances after a decision by that officer in person (id, p. 9), the only remedy was to obtain an appeal to the mother country. This trouble and expense were practically useless (see in this relation Skipwith to Berlier, Doc. 102, pp. 833, 834). Communication between France and the colonies was difficult; the masters of the seized vessels were poor and were often stripped by the privateers of what little they had.

The condition of French prize tribunals was so notorious as to cause a change in admiralty law, the reasons for which were thus expressed by Lord Stowell:

“ It has certainly been the practice of this court, lately, to grant salvage on recapture of neutral property out of the hands of the French, and I see no reason at the present moment to depart from it. I know perfectly well that it is not the modern practice of the law of nations to grant salvage on recapture of neutral vessels, and upon this plain principle, that the liberation of a clear neiitral from the hand of the enemy is no essential service rendered to him, inasmuch as that sa,me enemy would be compelled by the tribunals of his own country, after he had carried the neutral into port, to release him, with costs and damages for the injurious seizure and detention. This proceeds upon the supposition that those tribunals would duly respect the obligations of the law of nations ; a presumption which, in the wars of civilized nations, each belligerent is bound to entertain in their respective dealings with neutrals. But it being notorious to all Europe,- in the present war, that there has been a constant struggle maintained between the governing powers of France, for the time being, and its maritime tribunals, which should most outrage the rights of neutral property — the one by its decrees, or the other by its decisions — the liberation of neutral property out of their possession has been deemed, not only in the judgment of our courts, but in that of neutrals themselves, a most substantial benefit conferred upon them, in .a delivery from danger against which no clearness and innocence of conduct could afford any protection. And a salvage for such service has not only been decreed, but thankfully paid, ever since these wild hostilities have been declared and practiced by France, against all acknowledged principles of the law of nations and of natural justice. When these lawless and irregular practices are shown to have ceased, the rule of paying salvage for the liberation of neutral property must cease likewise.”
“ No proof is offered that the maritime tribunals of France have, in any degree, corrected either the spirit or the form of their proceedings respecting neutral property generally; and, therefore, I shall not think myself authorized to depart from the practice that has been pursued, of awarding a salvage to the captors. (The Onskan, 2 Robinson, 300, 301.)”

And later he said :

<! It is certainly true that the standing doctrine of the court has been that neutral property, taken out of the possession of the enemy, is not liable to salvage., It is the doctrine to which the court has invariably adhered till it was forced out of its course by the notorious irregularities of the French cruisers- and of the French Government, which proceeded, without any pretense of sanction from the law of nations, to condemn neutral property. On these grounds it was deemed not unreasonable by neutrals themselves that salvage should be paid for a deliverance from French capture. The rule obtained early in the war, and has continued to the present time. It is said that-a great alteration has taken place in the French proceedings, and that we are now to acknowledge a,sort of return of “ Satur* nia Reyna,.” This court is not informed, in a satisfactory manner, that any such beneficial change has taken place in the administration of prize law in the tribunals of France; and, therefore, it will continue to make the same decree till the instructions of the superior court shall establish a different rule. (.Eleonora, Oatharina, 4 Fob., 157.)”

It is important to note that during the period of these seizures neither the Government of the United States, which consistently supported the claimants’ contentions, nor the Government of France, from whom we were demanding redress, indicated the necessity of the form of appeal, nor later did the French, even in the long negotiations in which the validity of these claims was a principal subject of discussion, intimate in any way that they considered the appeal of importance or that they required it.

We conclude, therefore, that under these exceptional circumstances a claim properly founded in law is not excluded from our jurisdiction because the supposed remedy by appeal was not exhausted, and this we hold upon two principal grounds: First, that by the action of the French Government such an appeal was useless or impracticable; second, that as between the United States and France such an appeal as a condition precedent to recovery was in effect waived.

The decree condemningthe Industry proceeds upon the theory that the vessel’s role $ equipage was not in the form said to be required by article 25 of the treaty of February 6,1778, and also said to be required by certain French decrees declaring to be good and lawful prize every American vessel not having a role in a form prescribed.

Colloquially a role d’équipage is usually treated as a crew list, whereas in French law it is a more formal paper, with more extended requirements.

To the first of the propositions contained in the court’s decree a very clear answer is found in the fact that the treaty does not demand, as we have already decided, that a crew list of any kind be carried on the vessel. Article 25 of that instrument calls for a “letter or passport expressing the name, property, and bulk of the ship, as also the name and place of habitation of the master or commander of the said ship, that it may appear thereby that the ship really and truly belongs to the subjects of one of jhe parties; ” this passport to follow a form annexed to the treaty. The ship was also to have a certificate as to cargo, showing she was not carrying contraband; but this certificate is not brought in question in these cases. The treaty therefore required two documents: First, a passport; second, a certificate as to cargo. The form of passport annexed to the treaty runs as follows:

“The name of the master and the name, hailing port, and tonnage of the vessel are given, together with the name of the port in which she is lying, as well as that of the port to which she is bound; the general nature of her cargo is described, and it is made known and certified that permission has been given the master to proceed after he shall make oath that the vessel belongs to one or more American citizens.”

Up to this point, therefore, the passport’s requirement is a description of the vessel and cargo, with the name of the master and a sworn statement as to the citizenship of the owners. Up to this point also the document follows exactly article 25 of the treaty, contains everything demanded by that article, and we are informed that it was the custom of the United States in the English version of the passport to halt at this point, while the versions in foreign languages contained the concluding portion, which we are now about to consider. ' (See original sea-letter of the Zebra; claim allowed under treaty of 1831; original MSS. Department of State.)

The master “ will,” it says further, keep the marine ordinances on board, in every port he “shall” show his sea-letter, “shall” give a faithful account of his voyage, and “shall” carry the colors of his country; and he shall (or will) enter in the proper office (remettra) what: — “a list, signed and witnessed, containing the names and surnames, the places of birth and abode of the crew of his ship and of all who shall embark on board her, whom he shall not take on board without the knowledge and permission of the officers of the marine.”

There is no requirement here that the master shall carry on his vessel the document described, be it role d’équipage or crew list. The demand of this clause is that such a document be deposited or filed (remis) in a proper place, and whether this be done before or after the passport issue is not material. That instrument simply declares that such a list has been, or ■at least will be, before sailing properly filed, not carried. (Doc. 102, pp. 467 and 564; 2 Prises Maritimes, 53.)

The provision of Article IX of the treaty of 1788, relating as it does to consular rights in the arrest of deserting seamen, has no bearing upon this question. A semi-extraterritorial power is by that instrument given to French consular officers, and a way strictly marked out in which they shall pursue it; to arrest a deserter they must show him to be part of the vessel’s crew, and this they must do by exhibiting “ the registers of the vessel or ship’s roll.” This is a specific agreement relating to a specific subject, and has no reference to condemnations.

The Industry was -not condemned because the crew list had not been filed in the home port, but because the rdle d’égtiipage was not in form. The careful study and patient research of Government counsel have failed to develop any treaty requirement that such a document be carried on board the vessel, while the United States Government constantly and most peremptorily insisted that during all the period now under discussion the French demand was illegal and unauthorized by treaty or other law. The Pinckney mission told M. Bellamy in October, 1787 (Doc. 102, pp. 466,467), that none of our vessels had such a role j and that if they were to surrender the property taken from their fellow-citizens in cases where the vessel was not furnished with such a role the United States would become responsible for the property so surrendered, as “it would be impossible to undertake to assert that there was any plausibility in the allegation that our treaty required a role ÚJéquigiageP

Pickering’s interesting instructions to the Ellsworth mission, dated October 22,1799 (Doc. 102, p. 561), contain a very definite statement of the position of the Government on this subject. He lays down as—

“An indispensable condition of the [proposed] treaty a stipulation to make to tbe citizens of the United States full compensation for all losses and damages which they shall have sustained by reason of irregular or illegal captures or condemnations of their vessels and other property. And all captures and condemnations are deemed irregular or illegal when contrary to the law of nations generally received and acknowledged in Europe, and to the stipulations in the treaty of amity and commerce of the 6th of February, 1778, fairly and ingenuously interpreted while that treaty remained in force, especially when made and pronounced:
“(1) Because the vessel’s lading, or any part thereof, consisted of provisions or merchandise coming from England or her possessions.
u(2) Because the vessels were not provided with the roles Wequipage prescribed by the laws of France, and which it has been pretended were also required by treaty.
“(3) Because sea-letters or other papers were wanting, or said to be wanting, when the property shall have been, or shall be, admitted or proved to be American. Such defect of papers, though it might justify the captors and exempt them from damages for bringing in such vessels for examination, could not with reason be a ground of condemnation.”

Further on in the instruction Mr. Pickering says:

“There never was, indeed, any intimation on the part of France from 1778, when the treaty of amity and commerce was made, until the passing of the decree of the Directory,in March, 1797, that a role d’équipage, other than the ship’s roll or the shipping papers [see act 1790], would be required. It was then suddenly demanded, and the decree * * * was instantly enforced and became a snare to.the multitudes of American vessels, which, for want of previous notice, would not have on board the document in question, if their Government should permit them to receive a document which they were under no obligation to produce. For it cannot with any semblance of justice be pretended that the vessels of one nation are bound to furnish themselves with papers in forms prescribed by the laws of another. And if we resort to the treaty of 1778, or to the sea-letter or passport annexed to it, on which letter the Directory pretended to found their decree concerning the role di equipage, we shall see that these words are not to be found in either.” (Id., 564.)

For the purpose of argument, however, we may for the moment admit the French contention in this matter — a contention now adopted by the defense — and concede that, by relation back through the passport to the twenty-fifth article of the treaty of 1878, it became the duty of the vessel’s master not to file a crew list at the port of departure, but to carry on his vessel a róle d’équipage drawn and certified in accordance with the ordinances and decrees of France, and not necessarily in accordance with the statutes of the United States, to which country his vessel belonged and of which country he was a citizen.

The position being admitted, we must consider the amount of penalty which the vessel is to suffer if such a role be lacking. What penalty does the treaty impose? That instrument says nothing about a róle or crew list, but demands a passport, which latter document it is urged requires the presence of a róle on the vessel; the treaty penalty, therefore, for the lack of this róle, not mentioned in the body of the instrument, cannot be greater than the penalty for the lack of the passport which is there mentioned. The object of the passport provision is clearly to be gathered from the wording of the treaty: “To the end that all manner of dissensions and quarrels may be avoided and prevented,” the twenty-fifth article, it is provided that when either party is at war the vessels of the other shall be furnished with passports describing the name, property, and bulk of the ship, together with the name and abode of the master, so that it may appear that the vessel “ really and truly belongs to the subjects of one of the parties.” Such is the substance of the twenty-fifth article, whosé object as clearly expressed is not to affix penalties, but to avoid “ dissensions and quarrels.”

The twenty-seventh article provides, that if a merchant ship of either party meet a man-of-war or privateer of the other, the armed ship, “for the avoiding of any disorder,” shall remain out of cannon-shot, send boats to the merchantman; put no more than two or three men on board, to whom the master shall show his passport; having done which he may pursue his voyage, and the vessel may not be molested or searched in any manner, nor chased, nor forced out of her course. The passport, then, being given for the purpose of preventing “ dissensions and quarrels,” is by virtue of its presence alone to free the ship from search, chase, or forced deviation. No penalty is affixed for the lack of this passport other than what may be inferred, as, for example, that without it she would be liable to detention and search, and possibly to investigation by a prize court or other competent tribunal as to the honesty of her character and the innocence of her voyage.

No treaty penalty being affixed for the absence of a definitely prescribed document, how can one be held to exist for the absence of a subsidiary document which the treaty does not require the master to exhibit, even if its presence on board be necessary ? An American vessel boarded by a French officer need only, so says article 27, do one thing, need only show one paper, to wit, his passport •, this done, he may immediately proceed.

No rule of international law has been called to our attention, and none is known to us, which, in the absence of specific agreement to the contrary, requires the presence on vessels of any particular document. Some papers undoubtedly should be carried for protection; that is, carried for the benefit of the ship, to divert suspicion, to avoid detention and delay, and to afford at least prima facie proof that she is what she pretends to be, an innocent vessel engaged in legitimate business. The nature and character of ships’ papers is, however, usually a matter of municipal regulation to which foreign vessels must conform or incur certain reasonable penalties, enforceable within the territorial jurisdiction of the enacting Government. Many examples of municipal acts of this nature may be found in our own statute books.

Speaking, generally, however, aside from local regulations not enforceable by the Government of one nation over the vessels of another on the high seas, the class and kind of papers to be carried by a merchantman are prescribed by his own Government, and as between him and a foreign vessel of war these papers ar prima facie proof of innocence and honesty ; but as they are not conclusive on these points, so is their absence no more than the foundation of a reasonable suspicion deserving-inquiry into the true character of the vessel and voyage. (See, also, Merlin, 2 Frises Maritimes, 51.)

“It is of the highest importance [says Ortolan] that a vessel be in position to prove her nationality. The flag- is the distinctive evident sign of the vessel’s national character. Every state has its particular colors under which its citizens sail. * * * But this distinctive sign cannot be the only one, for if it were it would be easy to disguise the nationality of a vessel. Therefore, to provide clear proof of this nationality, ships’ papers or sea-letters are required, with which every merchantman should he provided. The number, nature, and form of these papers are regulated by the law of each country, usually through the provisions of codes of maritime commerce. (Ré-gles Internationales et Diplomatic de la Mer. Ortolan, vol. 1, p. 174.)
“The right to visit [says Hautefeuille] must be confined to an ascertainment through examination of official papers of the nationality of the vessel met, and also in case she is bound to an enemy’s port, whether faithful to her duty she carries no arms or munitions of war; that is, that she is not guilty of interference in the hostilities. These two single points ascertained, and that only by documents coming from the neutral sovereign, or his delegates, the cruiser should retire and allow the vessel, now recognized as neutral, to continue her voyage.” (Hautefeuille, vol. 3, p. 428; Parsons-Shipping, vol. 2, pp. 475-477.)

The lack of a particular ship’s paper may be punishable under certain circumstances within local jurisdiction as a police measure, but never, so far as we know, by absolute confiscation when it is shown that the vessel is innocently pursuing a legitimate voyage. An accident is easily supposable by which, after leaving port, and while on the high seas, all the papers of a ship may by fire or water be destroyed. On that account is she to be confiscated ? We know of no rule of law, municipal or international, which would authorize such a course.

The Industry, it is said, did not have a proper role ¿V equipage. The treaty did not require any,, or, if it did, then it punished the lack of the role by detention, search, and inconvenience only. The crew list is a paper usually carried on a merchant vessel, but its absence is not, by internaSonal law, punishable by confiscation.

After all the discussion between the two Governments in regard to the role W equipage, we find in article 4 of the treaty of 1800 provision for a passport identical in form with that of 1778, which could only have been so therein inserted because both Governments had agreed upon what had always been contended for by the United-States, and finally admitted by France, that this form imposed upon the shipmaster no obligation to carry on board his vessel the document technically known to the French law as a role eVequipage.

That France came openly to this position is shown by various cases.

In the case of the Louise (13 Thermidor, year IX) the council of prizes decided, that the laws of France relative to róles d’équipage should not be applied to foreign ships, it being sufficient that their róles conformed to the laws of their own country. (Traité des Prises Maritimes, Pistoye et Duverdy, vol. 1, p. 484.)

In the cases of the Elizabeth (17 Pluviose, year VII) and of Les deux Amis (3 Messidor, year VIII) it was held that even a failure to produce a proper passport or sea-letter did not warrant condemnation if the neutrality of the vessel sufficiently appeared from other papers or indicia on board. (Id., pp. 439, 479.)

The commissioner of the French Government very thoroughly presented this whole question in the case of the Pégou, on trial before the council of prizes. (Traité des Prises Mari-times, Pistoye et Duverdy, vol. 2, pp. 51 et seq.)

Among other things, he said that certainly the regulations of 1744 and 1778 and the orders of the Directory required aróle d’équipage, certified by public officers at the port of departure. Certainly, also, the role Wéqulpage is not set forth in the treaty of 1778 as among the documents required to show neutrality. Whether the treaty or the French decrees should prevail he does not decide, but starting with the principle that all questions of neutrality are questions of good faith, in which actual facts, not simply appearances, must be examined, he holds that the absence of a required document or an irregularity in form does not authorize condemnation-as prize. The truth must be sought, and that not by technical forms j simply omissions or irregularities should never obscure the truth if it be otherwise proved. The essential question is, whether the ship is or is not in fact neutral. It is not of importance that legislators have thought it their duty to require the presentation of particular papers ,• the severity of the legislators is always subordinate to the surrounding circumstances which alone lead to conviction. The neutrality should be proved, but this may be done notwithstanding the omission or irregularity of certain forms. On the other hand, fraud may be uncovered, though sought to be concealed under deceiving appearance. All thorns and all subtleties of law must be thrown aside “ il faut procéder par bonne et mure déUbération et y regarder par la conscience.” And the court followed his advice thus officially given.

We are irresistibly forced to the conclusion that a condena-nation based simply on the absence of a role d’équipage or upon its informality was illegal.

We do not, however, hold that the absence or informality of a ship’s paper may not create a suspicion calling for explanation, or that its absence or informality may not, in connection with other evidence, give good ground for investigation and suitable punishment. The cases now before us do not present this issue. In the case of the Industry, Benjamin Hawkes, master, for example, there is no allegation in the decree of the tribunal, nor is there anything in the proceedings tending to show that she was not what she pretended to be, an American vessel owned by citizens of the United States, honestly pursuing a legitimate and peaceful voyage. The grounds of condemnation were solely that the role d’équipage which the vessel had on board was not in form, being signed only by one notary public “without the confirmation of witnesses,” and there being written on the back of said rólé an unsigned certificate that a réle d’équipage was not necessary.

It will probably become important to consider in the future the proposition of the defense that the captured vessel is required to prove her innocence — that is, that the onus probmdi rests upon her in prize proceedings. In this case, however, there is no allegation that the vessel was violating neutrality or violating any law of nations or any law of France, other than that which demanded a róle d’équipage in a prescribed form. Consideration of this question is therefore reserved.

Some of the points presented in the argument we do not consider more in detail, as they have either been discussed by us before, or, in our judgment, are decided in the conclusions we have reached upon other contentions to which they are subordinate.

We thank counsel, both those representing the claimants and those who appeared in behalf of the Government, for the valuable assistance they have rendered the court by the thorough presentation of the many and complicated questions involved in these cases. ■

Motion denied.  