
    THE CALDERA CASES.
    Henry W. Hubbell v. The United States. The Same v. The Same. The Sun Mutual Insurance Company v. The Same. The China Mutual Insurance Company v. The Same. John C. Wilber v. The Same. John P. Paulinson, Administrator, v. The Same.
    
      On the Proofs.
    
    
      China pays to this government about $750,000 “in full liquidation of all claim of American citizens.” A commission sitting in China allows to th owners of the Caldera, $o., 40 per cent, of their claims, disallows 6 per cent, as being a marine loss, which had occurred prior to the captun Congress' pass a supplementary statute authorizing the owners, tfo., of th Caldera to bring suits in this court against the government, but limitin their relief to the balance of the Chinese indemnity fund.
    
    I.Tlie Act to prevent frauds on the Treasury, 26th February, 1853 (10 Stat. L 170), winch declares that “all transfers and assignments hereafter mad of any claim upon the United States,” &c., shall he void, does not appl to a claim against the Chinese indemnity fund under control of th Dex>artment of State.
    II,Where a statute authorizes this court to hear certain claims agains a foreign government and determino them “according to the prinoiph of justice and international law,” and it appears that this governmen formerly, with knowledge of the facts, asserted them to he valid, an demanded reparation for them, it will he held that, as between th claimants and this government, the xioint was settled that the claim constituted a legitimate reclamation upon the other country.
    III.Where a demand was made hy this government upon China for redros for certain specific injuries to American citizens, and the Chines Government, without conceding their liability, x>aid a sum in grot in satisfaction of all American claims, it must he held in a suit to ri cover a portion of the fund that China recognized her liability fc the acts complained of.
    
      V. Where a board was authorized by law to determine certain claims of American citizens against China “according to the principles of international law,” and the statute declared that the decision of the board should be final, and the board determined that the claims should be paid, the question of liability according to the principles of international law must be deemed in subsequent proceedings under a supplementary statute to have been settled by the board.
    V. Where an act authorizing the re-examination of certain international claims, Act 19thJime, 1879 (21 Stat. L., —), was passedwithfullknowl-edge on the part of Congress of every fact which ever transpired in regard to them, it must be supposed that Congress regarded them as valid claims according to the principles of international law.
    
      71, Where an American vessel was destroyed.by Chinese subjects, and it appears that damage to the ship and cargo had been caused by the perils of the sea immediately before capture, the amount whereof has not been established by either party, it must be held that the owners should recover out of the Chinese indemnity fund the full value of their property.
    
      The Reporters' statement of the case:
    These cases were heard together and argued at great length. Che facts being substantially the same in all, the court framed ,lie following general findings:
    I. On the 5th day of October, 1854, the Chilian bark Cal-lera, commanded by one Matthew Eooney, a citizen of the Jnited States, and having on board the merchandise and property hereinafter described, sailed from the port of Hong-Kong or San Francisco, with fine, clear weather and a light breeze, rat late in the afternoon of that day she encountered a typhoon,end on account thereof the master, on or about the 7th of Octo>er, sought shelter from the storm, and anchored the vessel in i bay on the coast of China, where there was smooth water, íear the islands of Koelan and Choo-koo-me, about 100 miles rom Hong-Kong. While at anchor in the said bay, and the nen were employed at the pumps to keep the vessel free, she vas seized by the crews of a large number of piratical junks, vho drove the men from the pumps and prevented them from seeping the vessel free of water; and after plundering her of ill the movable cargo, stores, passengers’ and crews’ luggage, dripped off the copper, and cut off bends of the vessel, and inally set fire to the. hull and destroyed the ship. The master inally succeeded in securing a boat, which carried him to Macao, where he represented the ease to the authorities, but, failing t get assistance there, he left for Hong-Kong, where he arrive* on or about the 13th of October, 1854, and immediately tool steps to acquaint the authorities with the facts of the case. Oi the 14th of October, 1854, he extended a marine protest befor the vice-consul of France at Hong-Kong in the words and ñg ures following: •
    “Yxce-CoNsulat de FeANCE 1 Howg-Kong.
    “Protest entered by Matthew Rooney, master of the Chiliai bark Caldera, of 574 tons register, which vessel left this por bound for San Francisco, California, on the morning of the 5tl day of October, at 5 o’clock, with fine, clear weather, and light breeze which carried her through the Lyemoon passage at 8.30 a. m. discharged the pilot, a fine breeze blowing iron the north-northwest. The vessel had as passengers Mademoi selle Loviot, Mr. Carroll, and a China cabin passenger, and ha* a crew of two officers, a carpenter, a cook, a steward, and twelv seamen, all Europeans. ■ The vessel was in perfect order, bein; stout, stanch, and strong; had her cargo well and sufficiently stowed and secured; was well masted, manned, tackled, appax eled, and appointed, and was in every respect fit for sea and th voyage she was about to undertake.
    “That after the pilot left, he continued to the eastward unti 4 o’clock p. m., with all sail set, and fine weather. At that hou the breeze coixsiderably freshened, and he immediately prepare* to shorten sail; double-reefed the topsails; gale inci’easing furled all sail; vessel under bare poles; the wind blowing perfect typhoon; heavy cross-seas running, and the vessel la bored heavily. The typhoon increasing, and higher cross-sea running, the vessel strained much. The sails, which wer snugly furled and well secured, were blown to ribbons by th fury of the gale. The mizzenmast and’fore and maintop-gall an masts and the jib-boom were blown away. The vessel still la boring heavily, the rigging became slack, and the masts worke* to and fro with great violence, endangering the hull of the ves sel. The vessel leaking badly (though when she left port sh did not leak a drop), the crew being disabled and injured, h resolved to seek for shelter, and he steered for the nearest land and on the 7th day of October, at 4 o’clock p. in., sighted Fir Islands, about two miles distant, in the vicinity of which wa discovered a bay where there-was a smooth sea. In going in fo an anchorage, the vessel took the ground in three fathoms o water; he succeeded in getting her off into four fathoms, wher* he anchored. The vessel, being badly strained, leaked ver much, and the pumps were consequently properly attended tc That night was dark and’ stormy, and the men were employe* at the pumps to keep the vessel free, and that while at wor] bey were surprised by tbe crew of three large junks, which 'oarded tbe ship suddenly, throwing stink-pots and other coin-ustible materials on deck, preventing them from defending the ttack. The crew and all hands were immediately seized and trongly tied, and the question, “if the vessel was English'?” ms asked, and on being informed that she was not, the pirates aid that if it had been, they would kill every one on board, 'hey immediately commenced plundering the cargo, remaining i possession of the vessel all of the 8th, and on the 9th instant, t daylight, a large fleet of pirate junks hove in sight, when mmediately the others alongside left, and the new party came p and took charge of the vessel. The men of the latter fleet fere under complete discipline, and did not injure the crew, >ut only plundered the cargo. They offered to seud the whole f the crew of the vessel to Houg-Kong, after taking all they ranted. All the junks were heavily armed, mounting good inglish 32-pounders. They took all the cargo except the grange and small stores, &c., and left the ship at 8 p. m., leaving a Jhinese boat to bring the crew to this place; but as soon as the eet got out of sight, the boatmen refused to comply with the rder. Again, other pirate boats came alongside and took pos-ession of the ship, and plundered her of stores, passengers’ and rew’s luggage, ship’s tackle, and almost everything on board, nd set Are to the ship, which was quenched immediately. This arty would not allow the crew to leave the ship. They broke he cabin to pieces and cut the decks. They then left the ves-el, and still another gang of pirates boarded her, and took verytking that was spared by the previous marauders.
    “They stripped off the copper, and cut the bends of tke-ves-el, and made a most complete wreck of her.
    “The vessel, which in the typhoon, and in grounding, had een badly strained, then had four feet of water in her hold, 'his band of pirates left nothing for the crew to eat, and pre-ented them from leaving the ship. At one time there was but ne junk alongside, with only fourteen men, and he proposed o the crew and Mr. Carroll to take the boat by force and then scape in it; but it was impossible, as there were only three ren who would fight. The remainder of the crew would not .o anything but submit to the orders of the pirates. The pirates ben promised to take him and the French lady away, and by bis means managed to get the passengers in one boat. He, be captain, wishing to embark also, they presented swords and. ther arms at him, and prevented his going with her. They ben shoved off, taking, besides her, the Chinese cabin passener. All the pirates were from the neighboring villages, and ad a red sash around their waists and red turbans on their eads. After a great deal of trouble he succeeded in obtaining boat to convey him to Macao, on promising a good remunera-ron. He left the vessel with the carpenter, leaving Mr. Carroll and the rest of the crew in the ship, and arrived at Macao, anc represented the case to the authorities, but could get no assist anee, and left for this place, arriving here at 12 o’clock p. m. o: the 13th instant, and immediately took steps to acquaint tin authorities with the unfortunate circumstances; and after ob taining the prompt promise of assistance fr.om Sir Willian Hoste, chartered the Lady Mary Wood, and will leave at 9 a m. to try and save the crew, and the hull of the ship, the pas sengers and French lady taken on shore, and bring them to this port.
    “The Chinese who brought Mm to port have been bandee to the authorities at this place, they being connected with th< pirates who plundered his ship. The violence of the gale coulc only be exceeded by the danger our lives were in while in the hands of the pirates. He hereby protests against winds, seas and all causes of danger sustained, and particularly agains the Chinese Empire, for having been plundered in one of its ports by the villagers, when obliged to run for an anchorage ii distress, and reserving the right to extend the present upon hii return from the vessel with any further particulars. And leav ing this at hours at which there is no office of notary republit open, he has noted this protest before me, the vice-consul o: France, ou this 14th day of October, 1854.
    “Mathew Rookey,
    
      “Master of Caldera.”
    
    “In witness whereof, as well the said appearer as I, the vice consul, have subscribed these presents, and I have also causee my seal of office to be hereunto affixed, the day and year above written.
    “Geo. S. Haskell,
    “ Vice-Consul of Frcmce.”
    
    “ I, the undersigned, vice-consul for France, at Hong-Kong hereby certify that the above is a true copy of the protest made at this consulate on the 14th day of October, 1854, by Matthev Rooney, late master of the Chilian bark Caldera; that the same has been carefully examined by me, and compared byme. with the original now on file at this- consulate, and been found to agree in every respect, and is in every respect a true and faithfu copy.
    “In testimony whereof, I have hereunto set my hand anc seal of office this 16th day of October, A. D. 1854.
    [seal.] “Geo. S. Haskell, Vice-Consul
    
    II. The said cargo on board the Caldera, at the time of the saic seizure and plunder, was taken out of her by the pirates whe committed the depredations, and a part of it was placed or board the said junks, and some of it removed to the town o: Koelan and other towns on the said islands and coast- of China Koelan is an island about 150 miles southwesterly from Canton, and about 20 miles from the mainland. The said island, and the waters in which the Caldera anchored and was seized, plundered, and destroyed as aforesaid, were at the time aforesaid under the jurisdiction and sovereignty of the Imperial Government of China, and within the district of Sin Ning, which was under the command of a military officer of said government, of the rank of Pa Chang, surnamed Tsou.
    TTT. Shortly after his a rrival at Hong-Kong, the master of the Caldera, on behalf of the underwriters on the vessel, chartered a steamer called the Lady Mary Wood, belonging to the Peninsular and Oriental Steam Navigation Company, for the purpose of proceeding to the place where he had left the vessel, and, if possible, saving the hull and what property he could find belonging to her. He proceeded with the said steamer to Koe-lan, and on arriving there found that the Caldera had been set on fire and afterwards sunk by the pirates, so as to become a total loss, thereby destroying the object of his visit. On arriving off Koelan, the Lady Mary Wood was supported by her Britannic Majesty’s ship Spartan, and an effort was made by the master of the Caldera, assisted by marines and sailors from the Spartan, to land and reach the village of Koelan, where it was supposed the said pirates, and a part of the cargo of the Caldera, were; but, on attempting to land, the party were fired on by the pirates from batteries on the shore, and driven off, and were unable to accomplish their intended object. The master, on returning to Hong-Kong, extended a second protest, as follows:
    “ Poet oe Victoria, Hong-Kong:
    
    “Be it known and made manifest unto all persons whom it doth, shall, or may concern, that on the 7th day of November, in the year of our Lord 1854, before me, William Gaskell, notary public, by royal authority duly admitted and sworn, residing and practicing in the city of Victoria, in the colony of Hong-Kong, personally appeared Matthew Rooney, master mariner and commander of the ship or vessel called the Caldera, of the burden of 549 tons or thereabouts, and now destroyed by pirates, who did duly and solemnly declare and state as follows:
    “That he, this appearer, shortly after his arrival in Hong-Kong aforesaid, as mentioned iu the declaration respecting the capture of the said vessel Caldera by pirates, made before me, the said notary, on the 21st day of October last, chartered the Peninsular and Oriental Steam Navigation Company’s steam-vessel Lady Mary 'Wood, to proceed to the place, where he, the said appearer, had left the said vessel in the hands of the pirates, with the intention of rescuing the hull of the said vessel, and what property he could find belonging to her, from them ; that on reaching the place in the said steam-vessel he found that the said vessel Caldera had been set on fire and afterwards sunk, so as to become a total wreck, thereby defeat ing the object of his, the appearer’s, visit.
    “And 1 make this declaration conscientiously, believing the same to be true.
    “ Matthew Rooney.
    [seal.] “ITm. G-asicell,
    “ Notary Public, Hong-Kong.”
    “ To all to whom these presents shall come :
    
    “ I, Edward Keate Stace, notary public, duly admitted and sworn, residing and practicing in the colony of Hong-Kong, do hereby certify that the paper writing hereunto annexed, purporting to be a copy of a declaration of Matthew Rooney therein described, bearing date the 7th day of November last past, is a true and correct copy of the said declaration, the same having been duly and carefully examined and compared with the draft of the original declaration drawn up and registered in the office of one William Gaskell, a notary jniblie residing and practicing m this place.
    “ In faith and testimony whereof, I, the said notary, have hereunto subscribed my name and set and affixed my seal' of office at Hong-Kong aforesaid, the 5th day of May, in the year of our Lord 1855.
    [seal.] “Edwaed K. Stace,
    
      “Notary Ptiblic, Hong-Kong.”
    IV. After the return of the Lady Mary Wood to Hong-Kong, the agents of the underwriters on the cargo of the Caldera chartered another vessel, called The Ann, and sent her to Koelan for the purpose of recovering, if possible, the said cargo. The said vessel left Hong-Kong on or about the 17th of October, 1854, and proceeded to the place where the plunder and destruction of the Caldera occurred, but was unable to find and bring away the said cargo.
    V. The existence of a piratical population and fleet at Koelan being recognized by the Chinese and by the British, American, and other foreign authorities at Hong-Kong and Macao, an expedition consisting of two Chinese war junks and of two British men-of-war and of Portuguese and American forces, was >rganized and sent to Koelan in the month of November, 1854. Che said expedition was accompanied by the United States bartered steamer Queen, commanded by Lieutenant George H. Preble, IT. S. N.; Captain Kooney, master of the Caldera; Mr. 3. W. Alvord, one of the owners of the cargo on said \Tessel, and >thers.
    The said expedition found a force of piratical junks, which tad been concerned in the plunder of the Caldera, pro-meted by shore batteries, at Koelan. After destroying some >f the said junks, the rest escaped and went up the Broadway sassage of the Canton River, where they eArentually became a >art of the Imperial service, but in what tvay does not appear.
    VI. The Government of China, knowing that pirates were jommitting such depredations on foreign vessels found in the said waters of China, took no adequate measures to prevent Dr hinder them from committing such acts. It is an historic fact that the great Taeping rebellion was then at its height, and that the city of Nanking and its province were then in the possession of the rebels.
    VII. The merchandise and property stolen from the Caldera, as aforesaid, were risible and accessible to the local Chinese authorities, at the island of Koelan, and the said authorities took no adequate steps or measures to recover the said' property and restore it to the owners, or to arrest and punish dep-redators.
    VIII. By the said acts the Caldera, her tackle, apparel, furniture, stores, &e., and the cargo laden on board of her, and the property and effects of her master, passengers, and crew, as more particularly set forth in finding XXVII, were wholly lost to the owners of the same.
    IX. The Mercantile Mutual Insurance Company at the times hereinbefore referred to was and still is an insurance company, created by and existing under the laws of the State of New York, and authorized to make marine insurance on vessels, freight, goods, wares, merchandise, &e. They insured a portion of the said cargo of the said Caldera on the said voyage by two policies, one for 89,834, and the other for $4,078. All the property thus insured was destroyed as hereinbefore set forth. After the owners of the said property had brought their claim for indemnity to the notice of Mr. McLane, as set forth in finding XVII, the said company paid the full amount of- Said policies. They also expended tlie further sum of $260.37 in efforts to recover the property insured by them. The details of this expenditure are set forth in finding XXVIII.
    On or about the 19th day of July, 1858, the said Mercantile Mutual Insurance Company, for value received from the said Hubbell, then and there fully and absolutely transferred, assigned, and set over to the claimant, his executors, administrators, and assigns, all the claim and demand of the said company upon the Government >of China, to be compensated and paid for the losses sustained and paid by the said company, as insurers on the said cargo of the Caldera, for the robbery, burning, and destruction of said cargo by the Chinese as aforesaid, and all its right, title, and claim to the said sums so .paid by the said company, and the interest thereon, and all damages therefor to be recovered of the Government of China, and any and all persons liable therefor.
    X. The New York Mutual Insurance Company at the times hereinbefore referred to was and still is an insurance company, created by and existing under thelaws of the State'of New York, and authorized to make marine insurance on vessels, freight, goods, wares, merchandise, &c. As such they insured another portion of the said cargo in the said - Caldera by a policy for $2,000, and the hull, furniture, tackle, and apparel of the said vessel for the said voyage by a certain other policy for $20,000. All the property thus insured was destroyed as hereinbefore set forth. The said last-named company paid to their assured for a total loss on the said property so insured by them as aforesaid, the said sum of $22,000, and expended the further sum of $1,538.28 in efforts to recover the property insured by it. The details of this expenditure are set forth in finding XXVIII.
    On or about the 7th day of September, 1858, the said New York Mutual Insurance Company, for value received from the said Hubbell, then and there fully and absolutely transferred, assigned, and set over to the claimant, his executors, administrators, and assigns, all the claim and demand of the said company upon the Government of China, to be compensated and paid for the losses sustained and paid by the said company, as insurers on the said hull and cargo of the Caldera, for the robbery, burning, and destruction of said hull and cargo by the Chinese as aforesaid, and all its right, title, and claim to the said sums so jbaid by the said company, and the interest thereon, and all damages tlierefor to be recovered of the Government of China, and any and all persons liable therefor.
    XI. The Sun Mutual Insurance Company at the times here-inbefore referred to was and still is an insurance company, created by and existing under the laws of the State of New York, and authorized to make marine insurance as aforesaid. On or about the 5th day of October, 1851, they made and issued two policies of marine insurance respectively for $10,000 and $25,000 for American account upon certain other goods, wares, and merchandise in the said Caldera on the said voyage. All the property thus insured was destroyed, as hereinbefore set forth. The said last-named company paid to their said assured for a total loss on the said property the sum of $31,300, being the whole amount so insured, less a deduction of two per cent., as provided for in said last-named policies. The said last-named company also expended the further sum of $870.08 in efforts to recover the property insured by them. The details of this expenditure are set forth in finding XXYIIT.
    XII. The China Mutual Insurance Company at the times hereinbefore referred to was and still is an insurance company, created by and existing under the laws of the State of Massachusetts, and authorized to make marine insurance as aforesaid. As such they insured another portion of the said cargo for $1,600, for American account... All the property thus insured was destroyed, as herinbefore set forth. They paid to their assured for a total loss the sum of $1,568, being the whole amount so insured, less a deduction of two per cent., as provided for in said policy. Said last-named company also exx>ended the further sum of $30.63 in efforts to recover the property insured by it, the details of which may be found in finding XXVIII.
    XIII. The claimant John O. Wilber is the administrator of all and singular of the goods, chattels, and credits which were of Enoch I. Wilber, deceased, at the time of his death, who departed this life intestate on or about the 3d of July, 1863. Tie said Enoch I. Wilber, in his lifetime, and one Selliek Whitney Alvord, being both citizens of the United States, were-merchants and copartners, trading and doing business in China, in, before, and after the year 1854, under the name, firm, and style of Alvord & Co. The said Selliek Whitney Alvord departed this life intestate on or about the 12th day of January, 1860, leaving him surviving the said Enoch I. Wilber, the sole surviving copartner of the late firm of Alvord & Co. On or about the 5th day of October, 1854, the said Enoch I. Wilber and Sellick Whitney Alvord, composing- the said firm of Alvord & Co., shipped at Hong-Kong-, China, certain other goods, wares, and merchandise, of the value of $10,974.24, the property of the said firm, in the Caldera, on the said voyage. No insurance was effected by the said Alvord & Co. on the said goods, wares, and merchandise, and the same were wholly uninsured for the said voyage. All the said property shipped by Alvord & Company became and was absolutely and totally lost to them in manner hereinbefore-set forth.
    XIY. The claimant John P. Paulinson is the administrator of all and singular of the goods, chattels, and credits which were of one Matthew Rooney, deceased, at the time of his death. The said Matthew Rooney, being- a citizen of the United States, was, on or about the 5th day of October, 1854, the captain and master of the said bark Caldera. On or about the 5th day of October, 1854, the said Matthew Rooney placed certain goods and personal effects belonging to him, of the value of $4,750, the same being- uninsured, on board of the said vessel for the aforesaid voyage. By reason of said destruction and loss of said vessel and cargo, the said property placed on board by said Rooney became and was absolutely and totally lost.
    XY. In October, 1854, the following correspondence occurred between D. N. Spooner, United States vice-consul at Canton, and his excellency Yeh, the Chinese governor of that province:
    “ Consulate United States op America,
    
      u Canton, Ootober 16, 1854.
    
      “ Sir : I have the honor to acknowledge the communication of your excellency, under date of 9th instant, advising that orders had been given to the local officers to clear the "rivers and channels near Canton of pirates who infest them. In acknowledging this communication, it is necessary for me to state to your excellency that it is in answer to one addressed from this consulate nearly two and a half months ago, and that such delay is unusual, and not acceptable to me as an officer of the United States Government.
    “But it is the special object of this to call the attention of your excellency to a most aggravated case of piracy (committed at the moment even when your excellency was preparing the ■dispatch under acknowledgment), and the serious delinquency -of the officers of the Chinese Government who permitted that piracy, under tlieir own eyes, by villagers from tlie shore and boats from the vicinity, without attempting to stop it.
    “This act was committed upon the bark Caldera while driven by a severe typhoon to seek refuge in a harbor .near Macao. The crew, exhausted by their labors during the storm, were overpowered, the vessel plundered of her entire cargo, and a French lady passenger, taken on shore, has not since been heard from. Such is the statement of the captain of the ship, who has arrived at Hong-Kong with one sailor only.
    “ By this act the American merchants, Bussell & Co., Henry W. Hubbell, Nye Brothers & Co., and others, have suffered the loss of property valued at $100,000, for which they request me to make a claim upon the Government of China.
    “ 1 believe their claim to be reasonable and just, and one which the Government of the Hnited States will take measures to enforce the payment of unless settled amicably by such officers as your excellency may depute to examine the details of accounts, in connection with myself.
    “ I do, therefore, by this address, protest against the Chinese Government for allowing this act of piracy on a distressed vessel, seeking refuge in a harbor on its owrn coast; and in the name of my government I do require from the Government of China remuneration for losses suffered by citizens of the Hnited States in consequence thereof.
    “ To adjust the latter, I hold myself ready to meet such officers as your excellency may appoint to investigate the case.
    “ This much it is my duty to state as regards the loss of property incurred by my countrymen; but, as vice-consel of the Hnited States, I must add that my government, as well as the government and people of all western nations, will consider it the duty of the Government of China to seek out and rescue from captivity the French lady named above as now in the hands of the jarates.
    “ Should it be the wish of your excellency to send an expedition to the place wffiere the Caldera was robbed, I am ready to furnish a pilot to such force.
    “I am, sir, your excellency’s obedient servant,
    “D. N. Spooner,
    “ United States Vice-Consul.
    
    “ His Excellency Yeh, ■
    
      “ Governor-General of Quang-ping and Quang-see.”
    “October, 19, 1854.
    “To the American Consul Spooner:
    “ Yeh, governor general of Quang-ping and Quang-see, &c., &c., hereby replies: On the 18th instant I received your communication, in which it is stated “ That on the 9th instant a merchant-vessel named the Caldera, having' experienced bad weather at sea, sought refuge in a harbor and anchored to the west of Macao, where presently pirates and villagers near by came to her in small boats and boarded her, taking out by force all her cargo and a French lady, who was a passenger, with which they went away.” Such pirates as these, prowling about on the face of the seas, robbing and destroying, should be seized and severely punished; and as your communication mentions that the place belongs to the district of Sin-ning, I have issued orders to the district magistrate there' to make inquiry. Cases like this are very common in Quang-ping every year, and it is very important that these real pirates should be most sternly dealt with.
    “The cargo should doubtless be given back and restored, which has been carried off. Your communication speaks of making indemnity for it; but it is stated in the 26th article of the treaty of the United States that if the merchant-vessels of the United States, while within the waters over which the Chinese Government exercise jurisdiction, be plundered by robbers or pirates, then the Chinese local authorities, civil and military, on receiving information thereof, will arrest the said robbers or pirates and punish them according to law, and will cause all the property which can be recovered to be placed in the hands of the nearest consul, or other officer of the United States, to be by him restored to the true owner. But if, by reason of the extent of the territory and numerous population of China, it shall in any case happen that the robbers cannot be apprehended, and the property only in part recovered, then the law will take its course in regard to the local authorities ; but the Chinese Government will not make indemnity for the goods lost. This declaration contained in the treaty is plain and explicit on this point, and consequently nothing more need be said or discussed respecting making good the losses.
    “As to the French lady carried off, I have already dispatched orders tó the district magistrate of Sin-ning that he send out policemen with the troops and revenue force, and search everywhere and bring her back, as well as seize the robbers, and communicate about going to the spot with a special officer. It is enough to give orders to the magistrate of Sin-ning, as it is his jurisdiction; he will inquire and decide on all points. For this I reply.”
    “United States Consulate,
    “ Omton, October 20,1854.
    “ Sir : I have to acknowledge you excellency’s communication of the 19th instant, in answer to mine of the 18th, regarding the loss of the Caldera, and I regret to find that your excellency has not admitted the liability of the Government of China for the value of the xiroperty stolen on that occasion.
    “I must assure your excellency that my government will not pass this matter lightly by; and the wording of the 26th article of the treaty will not be received as an excuse for negligence on tbe part of the officers of the Government of China. The 27th article expressly stipulates for ‘friendly treating, and the means of safety and security,’ in case a vessel is driven to take refuge in a port on the coast of China; and the Government of the United States will exact from the Government of China the fulfillment of this stipulation.
    “I do, therefore, in the name of my goverment, renew my demand for the amount of property lost by American citizens on the occasions referred to.
    “I am quite aware that it may require some delay in getting from the magistrates their reports in answer to the charges I have made against them, and in arranging for the settlements of this claim; and this will be a matter of little importance, provided your excellency shall admit the justice of my demand, for it is the admission of just principles, rather than the prospect of prompt payment of money, that my government requires in its dealings with other nations.
    “I am, sir, your excellency’s obedient servant,
    “D. N. Spooner,
    “ United States Vice-Consul.
    
    “His Excellency Yeh,
    “ Governor-General of Quang-ping, Quang-see, &eP
    
    XVI. In October, 1854, the following correspondence took place between James Keenan, U. S. consul at Hong-Kong, and Chaong, the Chinese military commander at Oawloong:
    “United States Consulate,
    “ Hong-Kong, October 16, 1854.
    “ Sir : I have the honor to notify you that on the 5th day of October, A. D. 1854, the Chilian bark Caldera left for San Francisco, with a valuable cargo on board, belonging to American citizens; and that on the 7th instant, when anchored off the islands of Koelan and Choo-koo-mee, the vessel was attacked and taken possession of by Chinese pirates, and taken to the bay of Choo koo-mee, and there plundered and burned.
    “Having ascertained that these places are under the jurisdiction of officers of the Chinese Government, I beg further to notify you that the American Government will hold the Chinese Government responsible for the loss of the cargo and the damage sustained by its citizens, of the amount of which I will inform you as soon as it can be ascertained.
    “ I am, sir, very respectfully, your obedient servant,
    “James Keenan,
    “ United States Consul.
    
    “ Ci-iaong-,
    
      “Military Commander at Caxcloong, China.”
    
    
      [Translation. ]
    
      11 From Oliaong, military commander of Tai-Fing.
    
    “Keenan, Consul of the United, States :
    
    “ Sir : I have to acknowledge the receipt, on the 20th instant, of your official communication, stating that (here follows a copy of the official letter) — and in reply beg to state that on inquiry 3 And that the islands of Koe-lan and Choo-koo-mee are under the supervision of the officers of the Heong-shan district and not under mine. I will, therefore, forward your communication to the military commandant and chief magistrate of that place, that they may inquire into thé matter, and reply thereto. I therefore write this communication for your present information, and with my respectful inquiries, <&c.
    “Dated October 21, 1854.”
    XVII. After the said loss, the American owners • brought claims for indemnity against China for their losses to the notice of Hon. R. M. McLane, the commissioner of the United States to China. Mr. McLane was of opinion that the treaty offered no basis upon which to make a claim against the Chinese Government for indemnity, and reported the matter to his government for instructions. Mr. Marcy, Secretary of State, instructed Dr. Parker, Mr. McLane’s successor, as follows:
    No. 3.] “Department op State,
    “ Washington, 5 Oct., 1855.
    “Peter Parker, Esq.,
    “che., ct'c., &c.:
    
    “Sir: In the disturbed iiolitical condition of China, you will doubtless be called on to act in emergencies which cannot now be foreseen, and it is not, therefore, possible to give you any definite instructions to guide your conduct in all cases which may arise.
    “In the present state of things in that country, you will consider the Emperor as the sovereign of China. To him and his government alone can we look for the faithful execution of the treaty now existing between the United States and China, and of course to him and his government are we bound to fulfil the obligations which we have assumed by that treaty. * * * Every part of the Chinese Empire, by whomsoever governed, is bound to fulfil the treaties with foreign powers.
    .ü. Ji. .¿t. JJ. .¿i. vf íF 9F e 9F W
    “The rapid increase of piracy in the seas and waters around China exposes to imminent hazard our commerce in that quarter. This subject will receive your most serious attention and .•eqnire all your exertions to restrain and repress depredations. Che Government of China should be solemnly warned of its responsibility for these outrages. It is its duty to arrest them ; tnd it will be held to have had power to do so, or at least to tave been able to restrain its subjects from any participation herein. This government will require of that of China a strict jompliance with the existing- treaty stipulation on this subject.
    *******
    41 The claims of American citizens upon the Government of Jliina will of course engage your serious attention. It has )een suggested by several of your predecessors that in cases >f clear right and peremptory refusal of redress by China, the jommissioner should be allowed to withhold duties payable by >ur citizens to the amount of such claims. This course it is blleged has been adopted by other powers and has not resulted n the interruption or embarassment of their trade with China. Phe President is not disposed to authorize you to adopt such a jourse as a general rule of action. There may be occasionally an instance in regard to which you would be justified in resorting o it, should you have reason to believe it would not have an mfavorable effect upon our commerce with China. The case if J. J. Eoberts is one in which such a mode of indemnity might ie ventured on. In that case the claim has been liquidated by lie two governments, yet payment has been refused. After igain urging the payment of it, you may in your discretion -esor t to the measure of withholding duties to the amount thereof. Chough you should lose no time in presenting all claims which ,rou deem just and fair to the consideration of the imperial govern men t with a demand for satisfaction, I do not think that any loursc which is calculated to produce irritation should be taken mtil the close of the negotiation for the revision of the of the iresent treaty.
    
      “ The case of the Chilian barque Caldera was referred by your mmediate predecessor to this government for instructions in -egard to it. It is clearly a case of aggravated wrong, and I think he proofs make out a claim against the Chinese Government, ¡hough it may not come under any specific provision of the treaty. Che President does not authorize you to resort to the summary node of obtaining indemnity left at your option in the case of 1. J. Eoberts. It does not appear that the case has ever been u-esented by the com missioner to the consideration of the Chinese Government.
    “You are instructed by the President to bring the claim to ts serious attention, and to demand a pecuniary compensation jqual to the aetualloss of our citizens. That government should >e made to understand distinctly that it is regarded by your government as a serious affair, and it is expected that the demand for indemnity will not be evaded or long delayed. The result of this proceeding you will report to the department a the earliest opportunity.
    * * # * *• #
    “You will keep this department constantly advised of you proceedings, and the condition of affairs in China, particularl; in respect to such matters as affect our commercial interests ii that quarter.
    “I am, sir, respectfully, your obedient servant,
    “W. L. Makov.”
    XVIII. On the 13th March, 1856, Dr. Parker addressed th following communication to F. B. Cutting, esquire, of New York counsel for some of the said claimants:
    “LEGATION OE THE UNITED STATES,
    “ Canton, China, March 13, 1856.
    “Sir : Your communication of the 3d of December, 1855, oi behalf of several of the leading insurance companies of Nei York and Boston, through the detention of the Peninsular am Oriental Company’s steamer at Lisbon, did not come to ham till the 11th instant.
    “ By this mail 1 am able to do little more than acknowl edge its receipt. I have specific instructions from the govern ment at Washington, relative to the case of the Chilian bar! Caldera, which will receive my careful attention. Whilst t my mind the obligation of the China Government is manifest I have little confidence that the same will be voluntarily ac knowledged by it, and that correspondence and argument wil effect but littie without the prestige of the presence of a re spectable naval force. The necessity of this auxiliary to negotia tions with a government like that of China I have fully repre sented to the President and his Cabinet at Washington, am invoked other influences to secure it; and if the companies in terested in the claim in the Caldera case can, directly or indi rectly, do aught to expedite the early arrival in China of th requisite naval force, they will not only be promoting thei special interests but those of the United States generally h this country. My instructions preclude the adoption of th means of indemnity suggested to his excellency Robert M. Me Lan-e, the amount of his award having been tendered to am accepted by the Chinese Government. When the Unite< States Government arrives at a point of saying to that of China indemnity in this case ought and must be paid, the ways am means will not be difficult to determine.
    “I am now in Canton seeking an interview with the imperia commissioner, having special reference, among other subjects to bringing the Caldera case to his excellency’s attention h person.
    “ With the assurance the subject shall receive my most ear nest attention, as circumstances shall permit, I have the honor to be, very respectfully, your obedient servant,
    “Petes, ParKEb.
    “F. B. CUTTING-, Esq., Yew YorJc.”
    
    XIN. In pursuance of his instructions, Dr. Parker, on the 31st March, 1816, addressed the following note to the imperial commissioner:
    “Legation oe the Dotted States,
    “ Macao, 31 st March, 1856.
    “Sir: On the 8th of March Iliad the honor of addressing your excellency renewing my request for an interview, not only for the purpose of delivering for transmission a letter from the President of the United States to His Majesty the Emperor, but also to attend to matters of business of grave importance appertaining to mutual interests of the two governments, to which up to the 17th instant your excellency returned no reply, when proper self-respect and due regard for the government I have the honor to represent compelled me to withdraw, which I did on the 18th instant, returning in the United States ship Vandalia to Macao, on the 20th instant.
    “In the communication of the 8th instant I addressed your excellency in the spirit of true friendship, and if aught was disagreeable it was the unpleasantness-of truth and history. It is a source of regret that the pre-eminently friendly sentiments of my government towards that of the Ta Tsing Empire seems to meet no response from your excellency charged with the conduct of foreign affairs.
    “It is much to be deprecated when unfounded distrust becomes a separating wall between friends, and still more between great and friendly nations, whose interests are reciprocal and to a great extent identical. I take this opportunity to reiterate that the Government of the United States has nothing to ask of China for which they will not give an equivalent, and the granting of which will not benefit the giver as much as the receiver. A line drawn by the golden rule, “Do to others as you would that others do to you,” marks the course the United States pursues towards the nations with w'hich they have intercourse, and to convince your excellency of this fact was one of the objects for which I sought an interview.
    “Failing in my repeated endeavors to meet your excellency in person, I now avail myself of the alternative of calling your attention by correspondence to subjects of moment, whose adjustment cannot, without prejudice to parties concerned, be longer postponed:
    “11 am instructed by the President of' the United States to bring the claims of American citizens, in the case of the Chilian barque Caldera, to the attention of the Government of China, and to demand a pecuniary compensation equal to the actual losses of those citizens.
    “ ‘This caséis regarded as a serious affair, and it is expected that the demand for indemnity will not be evaded or long- delayed,’ &c.
    “ In obedience to these instructions I now address your excellency.
    “The hon’ble F. B. Cutting, the attorney of the insurance companies of New York and Boston, in their behalf has addressed me, minutely and lucidly staring the evidence bearing upon the case, a translation of which is appended.
    “I have examined and find that the Chilian barque Caldera had a valuable cargo, shipped by citizens of the United States and insured by American insurance companies, to the amount of about $100,000; that, having encountered a typhoon when at sea, was so disabled as to be obliged to seek shelter, which she did near the islands of Ko Lan and Ohoo-Koo-me, in the district of Sin-Ning, within the jurisdiction of China, and under command of a military officer of the rank Pa Chang, surnamed Tsow; that whilst thus within the jurisdiction of China, and of said officer, the barque was plundered of everything and destroyed.
    “ The cargo was taken on shore and stored in the town of Koo-Lan, near which she was plundered; that at the town, and many other places, the people and petty officers have been in the habit of receiving for safe-keeping, and sending to Macao for sale, the plunder taken by pirates. That the Chinese who plundered the vessel, either at the time or immediately after, held commissions from and were employed by the Chinese Government.
    “ Although this plunder occurred under the eye of the local authorities, it does not appear that they reported it to the high officers, indicating that they were in collusion with the plunderers. The United States consuls at Canton & Hong-Kong were the first to bring it to the notice of the Chinese Government. It is also stated that there was great remissness on the part of that government when notified, or the property might have been recovered, and that co-operation with the English, United States, and Portuguese ships of war was delayed as long as possible, and that they actually were detained three days whilst negotiations were in progress with the pirates to join the imperial service.
    “It is well known that in repeated instances pirate chiefs have been promoted to office under the imperial government. With great propriety on the 16th Octo., 1854, the United States consul at Hong-Kong notified Chang, the military commander of Kowloon, and the United States consul at Canton, on the same day, informed your excellency of this outrage, and that the Government of the United States hold that of China responsible for indemnity of the consequent losses.
    
      “Your excellency, in reply to the consul at Canton, dated the 19th of Octo., quoted the xxvi article of treaty as barring the claim for indemnity, and were the case of the Caldera such as provided for by that article, viz, a piracy upon the sea, the argument were conclusive, but it is not.
    “The Caldera was not plundered upon the high seas, but within the district of Sin-Ning, and under the immediate jurisdiction of the Chinese authorities, where the robbers could be apprehended and the property recovered. And it is just that the imperial government makegood the losses which have been sustained in consequence of its own neglect.
    “The xxvii article specifically provides for just such a case as that of the Caldera, and had it been fulfilled, there had been no occasion for complaint or indemnity, but it has not, and the consequences of its non-fulfillment clearly rests upon the Chinese Government.
    “Not only is it right, according to the treaty, but in the opinion of his excellency Cushing, Attorney-General of the United States, the American owners of property, destroyed under the above circumstances, are clearly entitled to the indemnity from the Chinese Government upon well-settled principles of international law, of which several cases are on record,
    “ If your excellency wishes to examine the evidence that $100,000, more or less, was lost, and will appoint a proper officer to meet the United States consul at Canton, the same shall be submitted and carefully examined, and the exact amount ascertained. It is only for the actual loss sustained by their citizens that the Government of the United States demands indemnity.
    “I am also instructed by my government to call on that of China for the payment without further delay of the claim of J. J. Roberts, a citizen of the United States, which, by a joint commission of the two governments, was adjudged in July, 1847, to be 1,000 taels, which, with interest to date, I have to request may now be paid.
    “ I avail myself of this opportunity to renew to your excellency the assurance of my regards, and have the honor to remain, sir, 3’our excellency’s obed’t servant,
    “Peter Parker.
    “ Commissioner of the United States of America to China, &e., die., <&c.
    
    “ His Excellency YÉÉ
    “ Cabinet Minister & High Imperial
    
    
      Commissioner, d:c., etc., duel
    
    [L. s.]
    XX. No reply was ever received to the last named note. On or about the 9th December, 1856, Dr. Parker again brought said claims to the attention of the Chinese Government, and was answered that the captain of the Caldera should have fired upon the pirates and not suffered himself to be plundered.
    XXI. On or about September 10, 1858, the following letter was addressed by F. B. Cutting, esq., of New York, counsel for some of the claimants, to Mr. Heed, United States minister to China:
    “New York, September 10,1858.' ‘
    
      “ Sir : I have the honor, by request of the Sun Mutual Insurance Company, the New York Mutual Insurance Company, and the Mercantile Mutual Insurance Company, to call your attention to the heavy loss sustained by them, as well as by other parties, citizens of the United States, by the idunder and destruction of the cargo of the bark Caldera, by parties for whose acts it is insisted the Chinese Government is responsible.
    “ The accompanying papers, marked Nos. 1,2, and 3, are copies of originals which probably may be found on file in the American embassy, and furnish an outline of the facts of the case.
    “The members of the firm of Bussell & Co., Alvord &• Co., and other gentlemen who are referred to in the documents, will be able, I presume, to furnish additional information.
    “The.parties interested in this claim upon the Government of China indulge the hope that the present is a favorable opportunity to insist upon a just indemnity, and they respectfully beg leave to recommend tlie subject to your attention.
    “ Very respectfully, your obedient servant,
    “ F. B. CUTTING.
    “ His Excellency Willi AM B. Beed,
    “ Minister of the United. States.”
    
    XXII. On or about the 7th of June, 1858, the late master of the Caldera, Matthew Booney, forwarded to Mr. Beed, United States minister to China, his claim against China for losses sustained by him, amounting to $4,750 and interest, by the seizure and plunder of the said vessel.
    XXIII. After the negotiation of the convention of June 18, 3858 (12 Stat. L., 1023), Mr. Beed, the American minister in China, wrote to his colleagues in China as follows :
    “Legation oe the United States,
    “ Tientsin, June 28, 1858.
    “ My Lord : I have the honor to inform your excellency that on the 26th instant J concluded an arrangement with the imperial commissioners, by which the claims for American losses in the destruction of property at Canton and its vicinity, after the precise amount, now stated in the aggregate at six hundred thousand taels, shall be ascertained, are to be paid by the appropriation of one-fiffcli of the gross duties at Canton, Fuhcbow, Shanghai, on goods laden in American ships, and tonnage-dues.
    “ My object in this arrangement has been to impair as little as possible the resources of the Chinese Government, and at the same time to direct the application of a portion of the duties contributed by the United States to indemnify her citizens.
    “ I have the honor to be, my lord, your excellency’s obedient, humble servant,
    “WILLIAM B. REED.
    “ To His Excellency the Earl of Elg-in & Kincardine,
    “ H. B. II. High Commissioner^ the., <f;e., &e.n
    
    (The same sent to Baron Gros and Count Poutiatine.)
    NXIY. On or about the 10th November, 1858, Mr. Reed notified his government of the negotiation of the convention of November 8, 1858 (12 Stat. L., 1081),- in a dispatch, in which he said, among other things:
    “ In the tabular statement of claims which I have appended to tiiis dispatch, you will under the head of claims suspended see two — No. 2, section 1, ‘The Caldera’; another, section 4, No. 3, ‘ Ryder ’; and one not numbered, that of A. Pierrepoint Edwards, which I presume must be adjudicated at home.
    “ The case of the Caldera is the claim of New York under-. writers, whose original evidence is no doubt in the United States, and can be there most easily’ produced.
    “ That of G. M. Ryder involves a question of law as to the rights of a claimant who had declared his intention when the injury was done, but not been certificated as a citizen, on which it will be necessary to have the views of the government.
    “ And that of Mr. Edwards, which was a case of personal injury received by him as far back as 1841. When his claim was first brought to my notice he was resident in America, but has since, I learn, died.
    “ A sufficient sum can be reserved to cover these claims, all of which are more or less doubtful, and remitted in due season to the United States for distribution.”
    The following is an extract from the “tabular statement of claims ” above mentioned:
    
      “Symmary of preceding schedule of claims.
    
    Sect. 1. — Totals of allowed claims & interest... $7, 752 17
    Sect. 2. — Do. “ “ “ ... 9,208 22
    ■Sect. 3. — Do. “ “ “ ... 289,894 78
    Sect. 4. — Do. “ “ “ ... 246,289 45
    Totals. $554,144 62
    Total of speculative claims. 332, 007 67
    
      “ Additional claims, not decided upon nor entered in above.
    
    Sect. 1. — No. 2. Underwriters of “ Caldera . $100,000 00
    M. Eooney, master of “Caldera”. 4, 750 00
    Sect. 3. — No. 10. P. L. Everett, unattested. C, 500 00
    No. 17. W. M. Robinet & Co.. 200, 365 49
    Sect. 4. — No. 3. G-. M. Ryder... 14,128 00
    A. H. P. Edwards, for personal wrongs suffered in 1841. Amt. not stated.
    Totals..$325, 743 49
    Total of all claims now stated. $1,211, 895 78
    Amt. stated in Feb. 1,1858, was . 1,286,841 88
    N. B. — The total of actual losses, including interest at 12 % per aim. for 3 years on the above,.is.... $554,144 62
    Add “ Caldera’s ” claim & int. 142,460 00
    $696, 604 62
    XXY. Oliver E. Roberts and Charles W. Bradley were appointed by the President, on or about the 29th of April, 1859, the commissioners under the said act, approved March 3,1859, above referred to.
    ■ XXYI. On the 5th May, 1859, Mr. Cass, Secretary of State, instructed Mr. Ward, the minister of the United States in China,, as follows:
    No. 7.] “Department oe State,
    “ Washington, May 5, 1859.
    “ Sib, : Since I wrote you on the 29th ultimo, I have received the papers in the case of the Oaldepa, and they will be sent out by the next mail, together with such arguments in reference to them as may be added by the parties interested. Of course the' decision of the case will rest with the commissioners and yourself 5 but since it has previously been the subject of correspondence with the department, it may be well to present very briefly the view which is now taken of it.
    “The claim is on account of the plunder of the Caldera, when that vessel had been driven in distress into the harbor of Kulan.. The cargo on board belonged to American citizens, and the ship, when abandoned, was the property of American underwriters. Upon the facts presented at that time, Governor Marcy instructed Mr. Parker, under date of October 5,1855, that the parties injured were entitled to indemnification from the Government of China, if not specifically by treaty, at least by general principles of international right and obligation. Some-additional facts have since been presented, and it is claimed that the Chinese Government is also responsible by treaty.
    “The 27th article of the treaty then in force stipulates that—
    “‘If any vessel of the United States shall be wrecked or stranded on the coast of China, and be subjected to plunder or other damage, the proper officer of government, on receiving information of the fact, will immediately adopt measures for their relief and security.’
    “It is alleged that this engagement was wholly disregarded by the Chinese Government in the present case; that the local authorities participated in or connived at the acts of plunder; and that the higher authorities took no measures of ‘relief and. security.’
    “ The 26th article of the same treaty stipulates as follows:
    “‘If the merchant vessels of the United States, while within the waters over which the Chinese Government exercises jurisdiction, be plundered by robbers or pirates, then the Chinese local authorities, civil and military, on receiving information thereof, will arrest the said robbers or pirates, and punish them according to law, and will cause all the property which can be-recovered to be placed in the hands of the nearest consul or other officer of the United States, to be by him restored to the true owner. But if, by reason of the extent of territory and numerous population of China, it should in any case happen that the robbers cannot be apprehended or the property in part only recovered, then the law will take its course in regard to the local autlioritiés, but the Chinese Government will not make indemnity for the goods lost.’
    “By this article the Chinese Government engages that the-local authorities should arrest and punish the robbers, and should recover and restore the property plundered, and if they failed to do this, the Chinese Government would seem to be clearly responsible, unless they can show that their officers exercised due diligence and were prevented from accomplishing-the results stipulated by causes beyond theif control. Undoubtedly it might discharge itself of the obligations of indemnity by showing that the robbers could not be known to be apprehended, or that the property could only be in part recovered.
    “ In the present case it is alleged that the property plundered was notoriously visible and accessible to the local authorities; that the latter participated in the plunder; thus the robbers rvere known as such to the local and general authorities; and that the pirates concerned in it were shortly afterwards, Avith-full knoAvledge, taken into the service of the imperial government.
    
      “If facts of sucli a nature be proved, tbe responsibility of the Chinese Government, and its duty to make indemnity, would seem to be fixed according to both the 26th and the 27th articles of the treaty, as well as according to the law of nations, and the parties would be entitled to a share of the indemnity negotiated by Mr. Keed.
    “I am, sir, respectfully, your obedient servant,
    “Licw. Cask.
    “John E. Ward, Esq., die., &c., (fee.”
    XXVII. On the 10th November, 1859, the said commissioners organized as a board at Macao, under the said act of March 3, 1859. The claims óf the said claimants were presented to the said commissioners for allowance, as follows:
    
      (a.) The two claims of the claimant Hubbell (Nos. 11968 and 11969) were presented by Bussell & Co., of Hong-Kong, as his agents, in the following form:
    “ Statement of claims of Henry W. Hubbell, esq., by Ms agents, Bus-sell & Co., upon the Chinese Government, for losses by the bark Caldera, in October, 1854.
    
      Voucher Ho. 1. — Original policy of the New York Mutual Insurance Company,. No. 1204, on hull, &c., of said vessel, with original receipt for payment to W. M. Bobinet, attached.$20, 000 00
    
      Voucher Ho. 2. — Original policy of said insurance company, No. 1263, on cargo by said vessel, with original receipt for payment to W. M. Bobinet, attached... 2, 000 00
    
      Voucher Ho. 3. — Original voucher for payment of salvage charter of Lady Mary Wood. 1, 500 00
    
      Voucher Ho. 4. — Original voucher for payment of proportion of salvage. 38 28
    
      Voucher Ho. 5. — Original power of attorney to collect from said insurance company to said Hubbell.
    
      Voucher No. 6. — Original bill of sale of said claim to said Hubbell, and indorsed in blank to Bussell & Co.
    
      Voucher No. 7. — Original power of attorney to collect the claim of the Mercantile Mutual Insurance Company by said company to said Hubbell, arising on policy No. 130, account Caldera, $9,834; also under policy No. 137, .on account Caldera, $4,07S . 13, 912 00
    The policies were issued and losses paid by Eye Brothers & Co., as agents for said insurance company, and have been lodged in the archives of the legation.
    
      
      Voucher No. 8. — Original bill of sale of said claim by tbe insurance company to I-lubbell, and indorsed by Russell & Oo. for collection.
    
      Voucher No. 4 (above). — Also, voucher for the proportion of salvage expenses ..-. $266 37
    Total. 37,716 65
    “For II. IV. Hubbell, Esq.
    “.Russell & Oo.,
    
      “Agents.
    
    “I-Iong-Kong, December 5,1839.”
    
      (b.) The claim of the Sun Mutual Insurance Co. by said Russell & Oo. as their agents, in the following form:
    
      “ Extract- from the account of Bussell & Oo. 'with the Sun Mutual Insurance Company of Neto Torh
    
    “ DEBIT.
    November 18, 1854. To paid acceptance of policy No. 507, for . total loss Caldera.. $10,000
    Less 2 per cent, abatement..... 200 -$9, 800 00
    December 6, 1854. To paid proportion of expenses incurred in efforts to save cargo per Caldera, per statement rendered. 670 08
    April 17, 1855. To paid acceptance of policy No. 495, for total loss per Caldera. $25, 000
    Less 2 per cent, abatement . 500 •
    - 24,500 00
    34,970 08
    “I hereby certify that the above is a true and faithful extract from the account of the Sun Mutual Insurance Company of New York, as the items appear in the books of Russell & Co. for the years 1854 and 1855, and that the sum of $34,970.08 represents the amount lost by the Sun Mutual Insurance Company, on insurance granted by Russell & Co., as agents of the Sun Mutual Insurance Company, on cargo shipped by the bark Caldera.
    “I further certify that the within-meutioued policies of insurance, which were surrendered on payment of the loss, were destroyed or supposed to be destroyed in the burning of the Canton factories, in December, 1856.
    “George Tyson,
    “Accountant.”
    
      “Untted States Consulate,
    “ Hong-Kong, December 5, 1S59.
    “ Sworn and subscribed 'before me the date above written. Witness my hand.
    [seal.] “ Jaaies Keenan,
    “ United States Consul.”
    
    “ Statement of claims of the Sun ]\[utual Insurance Company, by their agents, Bussell & Co., upon the Chinese Government, for losses by the bark Caldera in October, 1854.
    
      Voucher No. 1. — Copy of entries in the books of Russell & Co., verified by the affidavit of their chief accountant, showing the sums paid for losses by said vessel, amounting to. $34,970 OS
    “ The losses of the insurance company by the two policies on cargo by the Caldera as above were paid by us at the time for the insurance company, and have been repaid to us by said company. The policies, duly canceled, with the receipts of the assured, were placed on file with past records, and are believed to have been destroyed, as stated in the affidavit of Mr. Tyson.
    “Russell & Co., Agents.
    
    “ TlONü-KONtr, December 5, 1859.”
    (c.) The claim of the said China Mutual Insurance Company by the said Russell & Co. as their agents, in the following form:
    “ Extract from the account of Bussell & Co. with the China Vutual Insurance Company of Boston.
    
    “debit.
    October 19, 1854. To paid acceptance of policy No. 564, for total loss per Caldera. $1,600
    Less 2 per cent abatement . 32
    -:-$1, 568 00
    October 30, 1854. To paid proportion of expenses incurred in efforts to save cargo per Caldera, as per statement.. 30 63
    1,598 63
    “ I hereby certify that the above is a true and faithful extract from the account of the China Mutual Insurance Company of Boston, as the items appear in the books of Russell & Co. for the year 1854, and that the sum of $1,598.63 represents the amount lost by the China Mutual Insurance Company on insurance granted by Russell & Co., as agents of the China Mutual Insurance Company, on cargo shipped by the bark Caldera.
    
      “ I further certify that the within-mentioned policy of insurance, which was surrendered on payment of the loss, was destroyed, or supposed to be destroyed, in the burning of the Canton factories, in December, 1856.
    “George Tyson,.
    
      Accountant.
    
    “ Uni tee'States Consulate
    “ Hong-Kong, December 5, 1859.
    “ Sworn and subscribed before me the date above written. Witness my hand and consular seal.
    [seal.J “James Keenan,
    “ United States Consul.’^
    
    
      il Statement of claims of the China Mutual'Insurance Company of Boston, by their agents, Bussell & Co., upon the Chinese Government, for losses by the baric Caldera in October, 1854.
    louclier No. I .~-Oopy of entries in the books of Russell & Co., verified by the affidavit of their chief accountant, showing thc sum paid for losses by said vessel, amounting to... $1,598 63
    “ The losses of the insurance company by the policy on cargo by the Caldera as above were paid by us at the time for the insurance company, and have been repaid to us by the said company. The policy, duly canceled, with the receipt of the assured, was placed on file with past records, and is believed to have been destroyed, as stated in the affidavit of Mr. Tyson.
    “ Russell & Co., Agents.
    
    “ HoNG-KoNCt, December 5, 1859.”
    
      (d.) The claim of the said John C. "Wilber, Administrator, by Alvord & Co. in their own name, in the following form:
    “CLAIM OE ALVORD & 00., PER CALDERA.
    “ Statement of loss sustained by the plunder of the vessel Caldera by Chinese.
    
    Value of merchandise shipped on board the above vessel, as per bills of lading and invoice hereunto annexed, amounting to .- $11, 029 73
    Less value of 9 packages of No. 4, lot short shipped, as noted on the bill of lading. 55 49
    10, 974 24
    Interest thereon from October, 1854, to June, 1858, making three years and eight months, at 12 per cent, per annum... 4, 828 63
    15, 802 87 “Alvord & Co.
    “Hong-Kong, June 30, 1858.”
    
      “Macao, January 18,1860.
    “ Before me, O. E. .Roberts, commissioner of claims, personally came E. J. Wilber, wbo, being duly sworn, did declare that the invoice hereto attached is a true copy of the invoice ol goods shipped by Alvord & Co. on board the Caldera, and that he, the said E. J. Wilber, was a partner in the firm of Alvord & Co. at the time of said shipment, and is a partner in said iirm at this time.
    “Witness my hand.
    “O. E. Roberts,
    “ Commissioner of Claims.”
    “ Invoice of merchandise shipped onboard the Chilian bark Caldera, in r/oodorder, by Alvord cf Co., for account and risk of, and consiyned lo, E. J. II ilber <f Co., San Francisco.
    
    
      
    
    “ With bill of lading attached. Errors and omissions excepted.
    “Alvord & Co.”
    
      (e.) The claim of the said «John P. Paulinson, administrator, by Matthew Kooney, the commander of the Caldera, in the following form:
    “ Claim made by the undersigned against the Chinese Government, through the consul of the United States of America at Hong-Kong, for losses sustained by the capture of the baric Caldera in Ty-lo Bay, in October, 1854.
    “The undersigned was master of the said bark, and, besides being exposed to much insult, hardship, and having his life menaced, lost the following effects:
    Seven cases of sundries, invoice of which was lost in the vessel, value.'. $1, 500
    A quantity of table silver, marked EL McF. 400
    A quantity of table silver, marked M. It. 250
    Nautical instruments, two chronometers, and gold watch 800 x
    Books, charts, &c. 500
    Personal clothing. 300
    Cabin furniture and stores ... 1, 000
    Three years and eight months’ interest on $4,750, at 1 " per cent, per month. 2, 090
    6,840
    “Matthew Hookey.
    “ Hong-Kong-, June 16,1858.”
    “Consulate oe the Cniteh States,
    “ Hong-Kong, June 16,1858.
    “ Before me personally came Matthew Booney, now a resident of Formosa, and formerly master of the bark Caldera, and a citizen of the United States, wlio, being duly sworn, did declare that the foregoing account of losses, amounting to $6,840, is true.
    “Witness my hand and consular seal the day and year above written.
    [seal.] “O. E. Bobekts, Vice-Consult
    
    XXVIII. At the same time the said Bussell & Co., on behalf of the said underwriters, presented the following memorandum of salvage expenses: ■
    “ Statement of expenses account of underwriters in efforts to save cargo of the baric Caldera.
    
    To Williams, Anthon & Co., in account with under- : writers on cargo of bark Caldera, per copy herewith . $1,104 95
    Copy of protest, &c... 20 00
    1,124 95
    
      Deduct proportion of net proceeds of sales of goods saved from the Caldera, belonging to charterers of steamer Ann, -3¡-; and underwriters on the cargo, viz, total net proceeds. $184 00
    Dess proportion of to officers and men of the Spartan... $01 34
    Less % of net proceeds of 4 chests of tea, paid to Messrs. Alvord & Co., as owners thereof, say $9.20.if_ 3 07
    - 04 41
    - 119 59
    . 1, 005 30
    “ To be divided between underwriters on cargo for the sum of $52,512.85, as follows :
    Sun Mutual Insurance Company, proportion for $35,000 is. $070 08
    China Mutual Insurance Company, proportion for $1,600 is.r. 30 03
    Mercantile Mutual Insurance Company,'proportion for $13,912.85 is.. 260 37
    New York Mutual Insurance Company, proportion for $2,000 is. 38 28
    . 1, 005 36
    £i Errors excepted.
    “Kussell & Co.
    “ CANTON, December 26, 1854.”
    
      “ Messrs. Russell & Oon underwriters on baric, Caldera•, in account-current with Williams, Anthon & Go.
    
    October. Paid charter steamer Ann.,. $1,000 00
    Paid J. Eoberts for services. 20 00
    Paid Chinese for services ...:. 2 00
    Paid bill provisions supplied by steamer. Ann. 48 00
    Paid certified copy of protest of Captain Eooney. 8 00
    Paid commission on disabilities, $1,070, at 2¿ per cent... ' 26 95
    At debit of Messrs. Eussell & Co., in account .. 1,104 95
    “ Errors and omissions excepted.
    “WilliaMS, Antiion & Co.
    
      u Honcí-Kong-, October 31, 1854.”
    
      XX TX. On tbe 18th November, 1854, the said commissioners considered tbe said Caldera claims, and after much discussion postponed tbe same. At tbat bearing tbe following affidavits were made before tbe commissioners and were filed in tbe case:
    
      “Affidavit of James B. Bndicotf.
    
    “Oeeice oe Board oe COMMISSIONERS oe Claims, Macao.
    
    “My former profession was tbat of master mariner. I am now, and for some 3-ears past have been, engaged in running steamboats, botb on established routes in China and on extraordinary service along its coast, and am likewise tbe owner of three dock-yards at Whampoa. I am.acquainted with tbe facts relating to tbe Caldera’s departure from Hong-Kong for San Francisco, in October, 1854, and with her condition when she Iropped anchor at or near Koe-lan, shortly after she sailed, on lie 7 th of tbe same month. It is my confident opinion tbat after íer disasters, occasioned by stress of weather, and by her taking ground when running for an anchorage, that she could not tiossibly have pursued her voyage without thorough repairs; aeither could she have safely run for Singapore. Her cargo lould not have been lauded, dried, and stored at Koe-lan nor my where in that neighborhood, beca'use there were there no iroper places for drying and storing the same; and further, lecause of the danger of its being pillaged by pirates. Her mly resource would have been to send to Hong-Kong for steam-;owage to that port, which could not have reached her under Free days at least.
    “ Koe-lan is distant from Hong-Kong about 100 miles by sea. :t would have cost the underwriters $5,000 to tow her back to Elong-Kong, in her helpless condition, against the strong north-íortlieast monsoon which prevailed at that time.
    “ My steamers having often been called for and performed ¡ucli service, I have charged and been paid at this rate, and I :onsider that that sum would have been but a usual and just ■enumeration. In my dock-yards I have had much experience n the repairs of vessels, and am confident that it would have equired an outlay of at least $15,000 to put her in a fit condition or sea.
    “ The only available portion of the ship which could offset, my of this expense would be her copper, the value of which I ihould estimate at $1,500; this would reduce the cost of suck tecessary repairs to $13,500.
    “ With reference to the cargo in the ship, from a knowledge if the facts, as stated in the master’s protest, I should say that ully one third of it must have been damaged by the water in Ler hold being thrown from side to side, rolling, as she did, in , heavy sea, which would have wetted it for at least five feet upward, to say nothing' of the probable damage it might have received by water from above through the hatches and open seams; of the amount of which I am unable to judge.
    “ J. B. Endicott.
    “ Sworn to and subscribed before us this 28th day of November, A. D. 1859.
    “O. W. Bradley,
    “O. E. Roberts,
    “ United States Commissioners of Claiams.'1'1
    
    
      “Affidavit of Charles McDonald.
    
    “Oeeice oe Board oe COMMISSIONERS oe Olaims, Macao.
    
    “ I am an engineer by profession, and have commanded tin steamer-Lily when engaged in towing vessels on the west coast I have been to Koe-lan and Ohoo-koo-me. I have heard tin testimony of Captain James B. Endicott, and fully concur in al he has said in relation to the Caldera, her condition, state o the cargo, and expenses of towage and repairs.
    “Chas. McDonald.
    “ Sworn to and subscribed before us this 28th of November, A D. 1859.
    “0. W. Bradley,
    “O. E. Roberts,
    “ United States Commissioners of Claims.”
    
    
      XXX. The said claims were again considered by the sai< commissioners on the 6th December, 1851. Being unable t agree in regard to the principle involved in the claims, the; determined to submit to the American minister in China writte: arguments covering the whole case. Commissioner Robert submitted his argument on the 8th December, 1854. He coi tended that the underwriters had proved that they had pai the losses which they insured against, and that Alvord & Cc and Rooney had proved their losses. He added:"
    ■ “ Equity, however, requires that the allowance of the claii should be made with a deduction. The underwriters and othei sliould not be placed in a better position than if no piracy ha occurred. The ship suffered heavily in the hurricane, and large claim on the insurance offices would have been made. Th vessel had four feet of water in the hold, and had been muc strained. The masts, sails, and rigging had been nearly los before the pirates came alongside. It is impossible to say no what the exact amount of repairs, salvage, or general averag would have been, or what portion of the cargo was damage iy tbe water in tbe bold or other leakage. After considering ill tbe circumstances and taking testimony, I deem it just to illow but forty per cent, on tbe claim of tbe policy covering tbe mil, and tbe same on tbe policies covering tbe cargo, with'five gears’ interest, at twelve per cent., to tbe underwriters in tbe United States.”
    Commissioner Bradley submitted bis argument on tbe 9th December, closing it with tbe following expression:
    
      “ My opinion is, that the parties interested in tbe case of tbe Caldera are entitled to no award, either on principles of usage, equity, or of international law.”
    XXXI. After consultation with tbe American minister, tbe said commissioners completed their work, and on tbe 13th of January, 18C0, banded to tbe American minister an account of [heir proceedings, and a list of tbe claims allowed in whole or in part, and of tbe claims disallowed. Among tbe claims thus allowed in part are those presented as aforesaid by Bussell & Go. on behalf of tbe underwriters or their assignee, Hubbell, and that of Alvord & Co. Tbe said claim of Booney was not returned as allowed or as disallowed. Tbe following are full statements made by said commissioners of tbe amounts so allowed to tbe underwriters represented by said Bussell & Co., as agents, and to said Alvord & Co.:
    
      u 2Iemorandum of award on the Caldera claims represented hyBus- & Go., agents, viz :
    
    “ To Bussell & Co., as agents : For China Mutual Insurance Company, Boston, claim $1,598.63,40 per cent., is $639 45
    For Bun Mutual-Insurance Company, New York, claim $34,970.08, at 40 per cent., is. 13, 988 03
    -$14, 627 48
    “ To Bussell & Co., as agents:
    For H. W. Hubbell, purchaser of claims of New York Mutual Insurance Com- ' pany, claim $23,538.28, at 40 per cent., is. 9,415 31
    And of Mercantile Mutual Insurance Company, New York, claim $14,178.37, 40 per cent., is.. .. 5,671 35
    - 15,086 67
    29, 714 14
    Five years’ interest at 12 per cent.=60 per cent... 17,828 48
    Total 47,542 62
    
      “ Award on the Caldera claim represented by Alvord & Go.
    
    Claim, for goods lost by piracy, less tbe amount of damage done by the tempest, forty per cent, of the loss being allowed:
    Claim, as per invoice uninsured...... $10,974 24
    At 40 per cent., is . 4,389 70
    Five years’ interest, at 12per cent.=60 per cent... 2, 633 82
    Total.. 7,023 52
    The commissioners also put the following statement in the official record of their proceedings:
    “ The commissioners agreed, after consultation, that it was desirable to place on record the fact that interest has been allowed to the claimants at the liberal rate of 12 per cent, per annum, in consideration of the circumstance that there will be some delay in making payment of the amounts awarded; and it is further to be distinctly understood that the allowance of interest made in the awards, severally, is absolutely final, and no more interest is to be allowed in any manner or upon any consideration whatever.”
    XXXII. The value of the cargo of the Caldera, on leaving Hong-Kong, was as represented in the claims made before the said commissioners; and it appears that damage was sustained by said cargo and by said vessel from the perils of the sea before the piratical acts aforesaid; but the amount of such damage has not been established by either party.
    XXXIII. Mr. Ward, the American minister in China, approved these awards, including those in the Caldera matter, and on the 26th of January, 1860, informed the Secretary of State of his action, making special'reference to the case of the Caldera, and added: “ As far as I have been able to learn, every claimant is content with the amount awarded. Such certainly ought to be the fact; and yet the amount secured by the treaty will not be exhausted.” It does not appear that any of the said claimants, or any one on the behalf of any of them, objected to said awards or the amount of them, although ample opportunity was afforded them to do so.
    XXXIV. The amounts so allowed to the said Hubbell, and to the said Sun Mutual Insurance Company, and to the said China Mutual Insurance Company, and to the said Alvord & Co., together with the interest allowed thereon, have been paid in fall out of the fand paid by China under the convention of November 18,1858, as follows:
    To said Hubbell on the claim described in No. 11968. $9, 074 10
    Eo said Hubbell on the claim described in No. 11969. 15, 064 49
    ro said Sun Mutual Insurance Company inNo. 11970. 22,380 86
    Eo said China Mutual Insurance Cotnimny in No. 11971. 1,023 12
    To Alvord & Co., No. 11975.7, 023 52
    XXXV. On or about the 3d September, 1864, Mr. Burlingame allowed and paid out of the said fund 40 per cent, of the claim of the said Matthew Booney, which had been filed in the legation of the United States and presented to the commissioners as aforesaid, and thereupon wrote the following letter to the surviving brother and sole heir of the said Booney:
    “LEGATION OB TIIE UNITED STATES,
    “ Peking, September 3,1864.
    “ Sm: I have examined the power of attorney granted you by Mr. Michael Booney, as the sole heir of his late brother, Matthew Booney, and your affidavit taken by and before Mr. GL W. Caine, her Britannic Majesty's consul at Swataw, that he is the only heir of the said Matthew Booney, whose claim on the Chinese Government for losses by the pillage of the bark Caldera has been presented by you for payment out of the money received from it, and find them and the other documents proving the citizenship of the said Matthew Booney to be valid and satisfactory. I have, therefore, decided to allow this claim, which the late Mr. Booney filed in this legation June 17, 1858, for |6,840, but which was passed over by the board of commissioners of claims in December, 1859, owing to want of proof of citizenship, and pay it on the same principles that guided the commissioners in their decision on the claims of other American citizens growing out of the same pillage, viz, paying 40 per cent, of the original loss claimed, and add. five years’ Interest. Deducting $2,090, added as interest by Mr. Booney, his original loss was $4,750, 40 per cent, of which is $1,900; to which add $1,140 for five years’ interest at 12 per cent., and the total sum is $3,040, for which I inclose an order on Messrs. Olyphant & Co., of Hong-Kong, the depositary of the indemnity fund, payable to you for Michael Booney, and a form of receipt to be signed by him in duplicate. I shall be obliged to you to procure this receipt as well as return your own for the money now paid on his account. I may observe that, if the citizenship of the original claimant had been proven before the commissioners at Macao in 1859, 1 have no doubt they would have decided the amount on tbe same principles as they did for the others, and 1 follow the same rule in settling it now.
    “ Respectfully, your obedient servant,
    “Anson Burlingame.
    “ Thomas W. Richardson, Esq., Stcataw.”
    
    XXXVI. All the evidence which was offered before said commissioners or referred to by them and which was transmitted by them to the American minister in China, and by him transmitted to the Department of State,-respecting the facts and circumstances of the said voyage of the Caldera, or the seizure of the said vessel and its cargo, or the destruction of the same by the Chinese pirates, or the alleged injury and damage to the same by the tempest or by the sea, or in any other manner, before the vessel arrived at Koelin, is set forth at length in these findings, in the said Rooney’s protests, or in the said affidavits of said Endicott or said McDonald.
    XXXYII. The amount paid by China to the United States in pursuance of the treaty and convention of November 8, 1858, commonly known and designated as the Chinese indemnity fund, was $735,238.97. There was a balance, or surplus, aftei the payment of the awards made by the said board of commissioners, under the act of March 3, 1859, which was tendered to the Chinese Government, and an offer made to return it tc that government, but they declined to accept it, and the same was subsequently transmitted to the United States in the yeai 1867. The fund bore interest in China at the rate of five peí cent.
    The amount of the interest which had accrued on the fund in China prior to its transmission to the United States was $14,553.48. The whole amount of said fund transmitted to the United States was $390,223.72.
    XXXVIII. The amount realized from interest on the said fund since its transmission to the Department of State up tc October 8, 1879, was $261,904.09, and the total earnings o: said fund from interest, investments, and reinvestments, at thai date, was $276,457.57; but the whole increase since the func reached the United States has been paid to it by the United States as interest on their own bonds, in which it has beer invested.
    The amount paid out of the said fund since its transmission tc the United States is $37,755, which amount was paid to Messrs Nott & Co., for loss of coin on the Neva, in pursuance of the award of the Attorney-General, to whom the said claim was referred for decision by the act of Congress of February 22,1869.
    The total amount of the said Chinese indemnity fund under the control of the Department of State of the United States on October 8, 1879, was $614,373.63, which is still held in the possession and under the control of the Department of State.
    
      Mr. John Jl. Ward, Mr. Joseph JT. Choate, Mr. J. Hiibley Ash-ton, and Mr. Leonard Myers for the claimants:
    I. — THE CONSTRUCTION OF THE ACT OF JUNE 19, 1878.
    The history of the “ Caldera claims,” for nearly a quarter of a century well known to Congress, the title of the act, and all its provisions s^ow that the question intended to be referred to this court for decision substantially was whether the “board in China,” under the act of March 3,1859, to which this act is supplementary, erred in disallowing 60 per cent, of the claims growing out of the plunder and destruction of the Caldera and cargo in 1854, in Chinese waters, by Chinese subjects; and if so, the court is empowered to give such relief by judgment, payable out of the Chinese indemnity fund, as the parties are entitled to under “the principles of justice and international law.”
    The act is eminently a remedial statute, and is to be construed liberally, so as to carry out the just intent of Congress and to promote and not defeat the remedy. (Roberts v. United States, 92 H. S., 41; Cross’s Case, 14 Wall., 479.)
    Every question as to the liability of China for the depredation and the right of international reclamation against that power, on behalf of the claimants, has been conclusively adjudged and settled by the executive and legislative departments of the Government of the United States ; and no such inquiry is involved in these cases. (Foster v. Weilson, 2 Pet., 251; Garcia v. Lee, 12 Pet., 511.)
    The claims were presented to Mr.McLaen in 1854, and referred by him to the government for its decision as to the responsibility of China for the injury. The President, through Mr. Marcy, instructed Mr. Parker that China was liable, and to demand pecuniary indemnity for the losses. He did so. Under this decision, Mr. Reed negotiated for the payment of the claims, and, under the convention of November 8,1858, the full amount of them with interest was paid by China to the United States. Congress, by the act of March 3,1859, to carry the convention of 1858 into effect, authorized the “board in China” to determine all claims presented to them tinder that convention “according to the provisions of the same, the principles of justice and international law.” Before the board met, Mr. Cass instructed Mr. Ward, as the chief diplomatic officer, to whom the decisions were to be reported, that China was liable, not only under the general public law, but also under treaty stipulations. The “ board in China” again affirmed the responsibility of the Imperial Government. The board, however, in assessing the damages, although it was admitted that it was impossible to determine the amount of injury to the ship or what portion of-the cargo was damaged by water, deducted 60 per cent, for supposed sea-damage prior to the seizure by the Chinese. The parties complained to Congress of this error of the commissioners, claimed the 60 per cent., and asked for a remedy. The question as to the 60 per cent, disallowed was the only question which jurisdiction was created in this court to try; whether the error complained of had been been committed, and, if so, to remedy it, and to give a full and just remedy.
    If there were any doubt as to this on the face of the act, read' in the light of its history, it would be resolved by the report of the Congressional committee accompanying the act. (Senate, Forty-fifth Congress, second session, Beport No. 184, to accompany bill H. B. 923.)
    II. — TIIE GRANT OR JURISDICTION AND TIIE RULE OP DECISION.
    The act sets up the United States as a nominal defendant, China, as represented in the fund, being the real defendant. It created this court an international tribunal to try the claims referred, and give relief on broadest principles of justice and international law. The technical rules of the common law or the principles applicable to ordinary claims against the United States in this court are inapplicable here. The claimants are by the act entitled to receive, and the court is authorized to award, out of the fund, what, under the circumstances of the case and the principles of justic and international law, in view if the nature and origin of tbe claims, it is right for the govern-nent to pay.
    The title of tlie act shows the judgment- of Congress that the jonvontion of 1858, the sole object of which was the payment of ill just claims in full, had not been carried into effect. It was jxprcssly to supplement the existing deficiencies in that regard that the act is entitled.
    [II.— TIIE CLAIM: EOR THE GO PER CENT. DISALLOWED BY THE BOARD IN CHINA.
    The theory that the decision of the commissioners in China concludes inquiry here would defeat the manifest object and purpose of the act, and flies in the face of all its provisions. Meade’s Case and the other cases cited have no application.
    The award of the board raises no presumption even that its amount was correct. The very passage of the act negatived that presumption. It laid absolutely and wide open the whole question of the amount. Its purpose was to do full justice to the claimants and the fund on this the only question, not to bar or hinder either by technical presumptions.
    The fundamental proposition is that as the value of the property at the inception of the voyage is established, and the loss, if any, sustained by the tempest is unproved, the broad principles by which the court is instructed to be guided in adjudicating the claims require, under the facts of the case, that the disallowed 60 per cent, for unascertained and admittedly unas-eertainable sea-damage should be adjudged to the parties.
    With regard to the rights of the underwriters, the question of any prior partial sea-damagé is unimportant, as their losses were not superinduced by any sea-damage, but by the hostile acts of China. (Levie v.Janson, 12 East, 649; ScMeffelin v. Neto YorTc Ins. Co., 9 John., 28.)
    But the evidence in the record shows conclusively that if the cargo sustained any sea-damage it was not until after the Chinese seized the vessel and drove the men from the pumps, and that the whole theory of prior sea-damage to the cargo has been built upon an erroneous reading of the master’s protest.
    lAr. — THE question OE INTEREST.
    The principles by which the court is to be governed in this adjudication require that interest at the rate received from China, and allowed by the board, 9,nd approved by Congress in the case of The Neva, i. e., 12 per cent., which was the customary rate in China, as the testimony shows, should be allowed the claimants.
    The allowance of interest would be conformable to international law, and is required by paramount considerations oi equity and-justice. (Argument of the United States Geneva Arbitration; 3 papers relating to Treaty of Washington, p 220, and authorities cited.)
    The cases are within the principle settled by this court in the Atocha Case (0 C. Cls. R., 427).
    Sec. 1091 of the Revised Statutes has no application to these claims.
    V. — THE ASSIGNMENT TO I-IUBBELL.
    This assignment is not within the act of February 26, 1853, or affected by it. The claims stand here as they stood before the board in China. The act of 1878 expressly authorizes “ any person holding and making any claim” upon the balance of the Chinese indemnity fund, &c., to commence proceedings in this court, and Hubbell is such a person. Congress knew all the facts as to his claim and assignment, and passed the act for his relief.
    
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants:
    
      I. — As to the assignment to Hubbell.
    
    Whatever may have been the right of the owner of the property insured, or the right of the Mercantile Mutual Insurance Company, to demand reclamation from China through the Government of the United States, Henry W. Hubbell has no status here. He asserts title through an assignment made the 19th July, 1858, after Mr. Reed’s convention with China of June 27, 1858. That assignment does not assume to confer on him a right to demand from the United States, and if by construction it can be held to have that effect, it is rendered u absolutely null and void ” by the act of February 26,1853. (10 Stat. L., 170,171. Cole’s Case, 3 C. Cls.R., 69; Cooper’s Case, 1 ib., 87; Pierce’s Case, 289; Gillis’s Case, 95 U. S., 414; Kirie v. 8pafford, 97 ib., 489; McKnight v. Richardson, 98 ib., 186.)
    
      Nor does tbe act of June 19,1878, relieve in any way from the force of the act of 1853, for it provides that the proceedings shall be commenced “in the same manner as other suits are brought, pursuant to and in virtue of the statutes of the United States and the rules of said court, * * * and that the proceedings, trial, decision, and judgment of the said court shall be had in the same manner as in all other cases before the said Court of Claims, and have the same effect.”
    If the act of 1853 had never been passed or is inapplicable to the case, it remains true that such a claim is not assignable at common law, and it is not shown that it would be assignable by the laws of China. (Atocha v. The United States, 6 C. Cls. R, 69.)
    
      II. — Responsibility of the Imperial Government for the robbery.
    
    Congress, treating the demand made by the executive upon China for reparation for the loss of the Caldera as of no binding force upon the United States in the distribution of this fund, has directed the court to determine the claim according to the principles of justice and international law.
    Claimant contends that this provision of the statute should ■not be complied with, because the Secretary of State in 1855 thought that the proofs before him made out a claim against the Chinese Government, and instructed Mr. Parker to make demand therefor. To this we answer that China continuously and emphatically denied its responsibilitjr, and in 1859 the State Department receded from its position by instructing the commissioners that the responsibility of the Chinese Government was to be determined by them and Mr. Ward, upon proof to them of certain allegations of claimant.
    The money having been paid in a hump, with no acknowledgment by China of its liability for this depredation, the power of Congress over this fund is as absolute as over any moneys in the Treasury arising from taxation or other means of revenue. (See Rustomjee v. The Queen, Law Reports, 2 Queen’s Bench, Div. 73.) And there was nothing unconstitutional or in derogation of the dignity and authority of the executive for Congress to invest the court with the right to inquire into the international principles involved.
    Familiar with the interpretation put by the Secretary of State and the commissioners upon similar language in the act of March 3,1859, and familiar with the controversy between Mr. Boberts and Mr. Bradley (which Mr. Ward declined to settle), Congress must have meant that the responsibility of China should be fully inquired into by the court and finally settled.
    No competent evidence has been offered by claimant to show connivance, collusion, or guilty negligence on the part of the Imperial Government. Apart from the allegations of himself and his coclaimants, and giving to unofficial letters and es-parte statements not under oath the dignity of evidence, there is nothing which in the remotest’ degree attaches blame to the Imperial Government for this robbery. (See the views of Messrs. McLane, Bradley, Beed, Yeh, and Cass.)
    The penal code of China as early as 1799 punished piracies on the high seas or on great rivers, and robberies on the public highways by decapitation. (Div. YI, Book I, § 266, and Appendix, 555, Staunton’s translation.) And the proof is abundant that both before and after the plunder of the Caldera this law was rigorously enforced.
    ' III. — Bight of recovery.
    
    But if the claimant ever had any right of participation in this fund, the decision of the commissioners was a legal adjudication of the extent of his claim, and the act of June 19,1878, does not impair the force of that adjudication as an estoppel. (Oomegys v. Vasse, 1 Pet., 193; Meade's Case, 2 O. Cls. B., 277, 293; 9 Wall., 691,725; JlaslceWs Case, 9 C. Cls. E,, 414; Cruger's Case, 11 ib., 770; Erwin's Case, 13 ib., 49.)
    The evidence offered by the United States to show that the vessel and cargo was damaged 60 per cent, is as competent and efficient to prove that fact as the evidence offered by claimant is to show that his assignor underwrote the cargo, that the cargo was destroyed, and that the underwriter paid the policy. It was more convincing to the commissioners than the evidence offered to them to prove the responsibility of the Chinese Government, for they agreed upon the amount of the deduction and disagreed as to the imperial liability. Not only so, but Mr. Ward, while evading the latter question, assented to the estimate of damages by the storm. Notice was given to claimants’ ■agent that the minister would hear exceptions, but none were filed, and Mr. Ward informed the Secretary of State that every claimant urns content with the amount awarded.
    
      The protest shows that the vessel and. cargo were severely injured by the typlxoon, thus destroying th& prima fucie force of the policy as evidence of the value of the goods at Koelan, and the plaintiff is left with no evidence on that point.
    It seems to be well established by Levie v. Janson (12 East, 048) and kindred cases, that where an underwriter contracts that the vessel shall arrive safe at her destination, and the immediate cause (or, to put in more legal language, the cause) of her non-arrival is a peril against which the underwriter did not insure, the assured cannot recover for previous deterioration resulting from perils covered by the policy.
    But that is law of contract, not of tort. China did not insure the Caldera, either generally or against the perils of the sea. Nor does her liability for the capture of the Caldera rest upon insurance or any other form of contract.
    
      IY. — Interest.
    Under the statute this is a proceeding against the United States. Since the money came into the hands of an officer of the United States, the claim, whether a valid or an invalid one, has been a claim against the United States. And the fact that the final judgment in favor of a claimant or plaintiff is to be paid from the specified fund makes it none the less a claim against the United States, and as such within the prohibition of section 1091. In the face of the language of that section, it matters nothing whether there is an implied contract to pay interest or a moral obligation to do so. The right to interest was not expressed in the demand on China, in the convention, in the act of March 3, 1859, nor in the act of June 19, 1878; it was, however, expressed in the act for the payment of the Neva claim.
    Again, no obligation rested upon the United States to pay this claim from 1860 until 1878 (Gomegys v. Vasse; Bustomjee v. The Queen, supra)-, it is only for delay after the obligation attaches that interest is recoverable (United States v. Sherman, 98 U. S., 565), and in any view of section 1091 he should only recover interest from June 19, 1878.
   Drake, Ch. J.,

delivered the opinion of the court:

The first question of law involved in these cases is as to the meaning and intent of the act of Congress under which they are submitted to tlie jurisdiction and tbe decision of tbis court. Owing to the great length of the findings of facts, we will make a condensed reference to the leading circumstances which gave rise to its enactment.

By the convention entered into on the 8th of November, 1858, between the United States and the Emperor of China, set forth in the findings, the sum of 500,000 taels, equal to about $750,000, was provided to be paid by China, “in full liquidation of all claims of American citizens [against China] at the various ports at this date.’7

On the 3d of March, 1859, to carry into effect that convention, an act was passed (11 Sat. L., 408) which authorized the appointment of two commissioners as a 11 board in China,” “to receive and examine all claims which may be presented to them under the said convention, according to the provisions of the same, the principles of justice, and international law”; and the commissioners were required by the act to “report to the chief diplomatic officer [of the United States] in China the several awards made by them, to be approved by him”; and thereupon the fund provided by said convention was to be used to pay the awards.

Before this board the claims which are now, in part, before us in these suits, were presented, all growing out of the loss of the bark Caldera, her cargo, and the effects- of her master, through the acts of Chinese pirates in a Chinese port.

The board allowed forty per cent, of the several claims, except that of the master, upon which they took no action, and disallowed the remaining sixty per cent, on the ground that before the perpetration of the acts of piracy through which the vessel and her contents were lost, both vessel and cargo had been damaged to the extent of sixty per cent, by perils of the sea.

The parties received in China the forty per cent, allowed them, with interest thereon.

If the matter had ended here, the action of the board would have been final and conclusive for all time on the subject-matter; and the rejected portion of these claims could not have been again brought under review in any judicial tribunal. (Comegys v. Vasse, 1. Pet., 193.)

But the claimants appealed to Congress for relief, and that body, with a full knowledge of all the facts in relation to these claims, and of all that had passed between the Government of tlie United States and that of Cbina in regard to them, saw fit to pass tlie following act:

“AN ACT supplementary to tlie act entitled ‘An act to carry into effect tlie convention Between tlie United States and Cliina, concluded on tlie eig'litli day of November, 1858, at Shanghai,’ approved Marcli 3, 1859, and to give to the Court of Claims jurisdiction in certain cases.

11 Be it enacted by the Senate'and Souse of Representatives of the United States of America in Congress assembled, That any person or persons, or body corporate, holding and making any claim upon the balance of the fund usually designated and known as “the Chinese indemnity fund,” under the control of the Department of State of the United States, and now unappropriated, for loss sustained by the plunder and destruction, in the year 1854, of the bark Caldera, and property on board of said vessel, may, at any time within twelve months after the passage of this act, commence proceedings in the United States Court of Claims against the United States, in the same manner as other suits are brought, pursuant to and in virtue of the statutes of the United States and the rules of said court: and that the said Court of Claims shall have full jurisdiction to" hear and determine such claim or demand, according to the principles of justice and international law.

Sec. 2. That at the hearing or on the trial of any suit so commenced, either party, plaintiff or defendant, shall have the right to use before the court any testimony or documents which may be relevant to, and competent upon, the issues joined between the parties ,• and that the proceedings, trial, decision, and judgment of the said court shall be had in the same manner as in all other cases before the said Court of Claims, and have the same effect; and that either party, plaintiff or defendant, may appeal from the decision or judgment of the said Court of Claims to the Supreme Court of the United States in the same manner as now provided for in other cases: Provided, however, That if any final judgment be found in favor of a claimant or plaintiff the same shall only be paid and satisfied out of the balance of said Chinese indemnity fund; and if said judgment shall be in favor of the defendant, then such claimants shall be forever barred, in law and equity, from hereafter making any claim upon or against said fund.

“Approved June 19,1878.”

Under this act these suits were instituted, and by its terms their decision is to be governed.

The right of these parties under this act to present their claims for adjudication here is not questioned by the defendants, except as to Henry W. Hubbell, who claims as assignee. As to him, it is urged that the assignment under which he claims, executed on the 19fch of July, 1858, was null and void under tbe provisions of the act of February 26, 1853 (10 Stat. L., 170), which declared “ that all transfers and assignments hereafter made oí any claim upon the United States, or any part or share thereof, or interest therein, whether absolute or conditional, * * * shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.”

To this position the simple and conclusive answer is that' these are not claims against the United States, but against the Empire of China, represented by ‘“the Chinese indemnity fund,’ under the control of the Department of State.” That statute, therefore, has no application here.

What could be brought here for our adjudication under the act1? “ Any claim” which “any person or body corporate,” being an American citizen, might see fit to make, within twelve months after the passage of the act, “upon the balance of the fund,” “for loss sustained by the plunder and destruction * * * of the bark Caldera.”

These comprehensive terms, taken in connection with the fact that it was well known to Congress, when it passed the act, that all the claims now sued on had been before the board, and that forty per cent, of them had been allowed and paid, and sixty per cent, disallowed, lead us to the conclusion that it was the intention of Congress to grant these claimants a rehearing before this court as to the disallowed sixty per cent.; for otherwise the act refers nothing whatever to us.

In the decision of the question whether the claimants are entitled to that part of their claims, we are first to ascertain whether a rule is laid down in the act for our guidance, and we find that there is. We are authorized to “ hear and determine according to the principles of justice and international law'1 any claim brought before us. This is in terms the same rule that was prescribed by the act under which the “board in China” was appointed; except that in that act the commissioners were required to examine claims “according to the provisions of the convention, the principles of justice, and international law.” The omission from the present act of any reference to “the provisions of tbe convention” is not considered to have any effect upon tbe rights of these parties.

Whether, “ according to international law,” the claimants had, in the first instance, valid claims against China for the loss and destruction of the Caldera, we do not consider to be now an open question as between the United States and these claimants.

By direction of the President, the Secretary of State, on the 5th of October, 1855, instructed the United States Minister in China to bring those claims to the serious attention of the Chinese Government, and to demand a pecuniary compensation equal to the actual loss of our citizens. He characterized it as “clearly a case of aggravated wrong”; and held that “the proofs make out a claim against the Chinese Government”; not, let it be observed, because a treaty had been violated, but even “though it might not come under any specific provision of the treaty.” To every intent this must be considered as asserting a demand which the President regarded as sustained by international law, quite independently of treaty stipulations. So regarding it, he used this emphatic and, in diplomacy, unusually energetic language: “That government should be made to understand distinctly that it is regarded by your government as a serious affair, and it is expected that the demand for indemnity will not be evaded or long delayed.”

The United States have not to this day changed the attitude then taken in regard to these claims. On principles of international law they then held China liable to make indemnity to these parties. China paid $750,000 “in full liquidation of all claims of American citizens” up to November 8,1858, specifying none, but paying a gross sum, 'which the United States received, and undertook to ascertain, determine, and satisfy out of that sum “all claims of American citizens” against China which had accrued prior to that date.

It cannot be questioned that, in determining what claims should be paid out of that sum, it was the right of the United States to ascertain, in such way and through such instrumentality as they might see fit to prescribe and employ, whether any claim which had not been presented by the United States to the Chinese Government before the convention of 1858 was a claim for which, by international law, China was liable; but when the President of the United States, before that convention was signed, had examined into claims — as he did in the case of tbe Caldera — and had not only decided that they were just claims against China, but had ordered a peremptory demand to be made upon China for their settlement, the point was set tied, so far as the United States are concerned, that by international law they constituted a legitimate reclamation upon that country. And it was so settled by the only department of the United States Government that had authority to settle it. And in our judgment it is not for any judicial tribunal to assume to reverse that decision of the national Executive, and so put our government in the unjustifiable and unenviable position before the world of having demanded money from China to pay certain claimants, and then denying them indemnity out of that money on the ground that, on principles of international law, they never had any claim whatever against China. It would be inconsistent with the plainest principles of national honor for our government to have urged, in language so peremptory and with a promptness so conspicuous, demands which, as now claimed, were unsanctioned by international law.

But the United States, though nominally the defendants here, are not the real defendants. These suits are, in effect, against China. If the United States can at all deny that these are legitimate claims under the principles of international law, they must do so, if not for China, at least from the Chinese Standpoint-Viewing the matter from that standpoint, we regard the question as equally settled. China, in consequence of the demand of the United States for indemnity for these very claims, as well as others, paid the money constituting the fund, and in all the diplomatic correspondence which preceded the convention there was no objection by China to her liability, by international law, to make the particular indemnity demanded by these claimants. On the contrary, the payment by China of the money, with knowledge of the existence of these claims, is conclusive to us that the Chinese Government recognized her international liability for them, and intended to provide for their satisfaction, at least so far as that could be obtained from that fund. Therefore, whether the United States speak now for themselves or quasi for China, it is not competent for them to deny the original liability of China, by international law, for the loss and destruction of the Caldera.

But, further, we refer to the action of the board appointed by the United States. That body was required to examine claims “according to tbe principles of international law”; and the United States declared, by the law under which it was appointed,, that its decision on all claims brought before it should be final. In every case presen ted to it the initial and fundamental question was whether, according to international law, the claim was a legitimate one against China. That question the board decided in favor of each of the claims, of which those now before us were a part, except that of Captain Rooney;, and we are satisfied that it would have allowed them in their entirety, if the commissioners had not, upon what they regarded as sufficient evidence, deemed it their duty to disallow sixty per cent, of them, because of damage by perils of the sea, sustained before the loss and destruction of the Caldera by the pirates.

Therefore, by the diplomatic act of the United States, by that- of China, and by the action of the board, we consider the original liability of China, according to international law, for the Caldera claims, a point settled, and not now re-examinable here.

But the act under which we are now proceeding seems to us, in itself, when considered in connection with all the circumstances, to be a recognition of the validity, under international law, of those claims. As before suggested, that act was passed with full knowledge on the part of Congress of every fact which ever transpired in regard to them. The diplomatic correspondence about them, the positions respectively taken by our government and that of China concerning them, the action of the board, all were as well known to Congress when it passed the act as they are to us to-day; and is it at all supposable that that body could not see as clearly as the President did in 1855 that the claims of these parties were, according to international law, legitimate claims against China? And if Congress had not so considered them, is it conceivable that the door of this court would have been opened for their presentation here ?

It is no answer to this to point to the words of the statute requiring us to hear and determine these claims “ according to international law.” That was but a continuance, in terms, of the rule of decision prescribed by the act of 1859. In view of the possibility of new claims being presented, on account of the Caldera’s destruction, which had not been brought before the ■ board, it was eminently proper that every such claim should be subjected to the same rule of decision that had been applied to those upon which the board had previously passed. But' it could not be supposed necessary to apply that test a second time to the claims which the board had allowed in part; for that partial allowance was as clear a determination of the original liability of China as if the whole amount demanded had been allowed.

So, in any and every view of the matter, it seems to us beyond reasonable doubt that the question of the original liability of China on account of the destruction of the Caldera has been every way decided against China by both the executive and legislative departments of our government, and, as to claims partially allowed by the board, cannot be now raised in this court. We are, therefore, required by the statute to decide these cases simply “ according to the principles of justice.”

In regard to the merits of the several claims, no extended remark is necessary. The matter is brought down to two simple points — 1. What was the value of the Caldera, her cargo, and the effects of her captain, when she sailed from Hong-Kong ? 2. What damage had the vessel and her contents sustained by perils of the sea before she was assailed by the pirates ?

These points are settled, so far as concerns the value of the vessel and her cargo, by the court’s finding XXXII, in the following words:

“ The value of the cargo of the Caldera, on leaving Hong-Kong, was as represented in the claims made before the said commissioners; and it appears that damage was sustained by said cargo and by said vessel from perils of the sea before the piratical acts aforesaid; but the amount of such damage has not been established by either party.”

Whether the evidence warranted that finding is not now open for discussion here. In Calhoun’s Case (14 C. Cls. R., 193), after careful consideration, the unanimous view of the court as to the finality of our findings of fact was thus expressed : “In deciding a case we first act as judges, in order to determine what evidence shall be received and what rejected. Next, as jurors, we shape the facts into a form resembling a special verdict. The concessions which individual judges make or find themselves unable to make to reach a result are lost in this proceeding. The bar and the world only know that at least three members of the court concur in what is announced as a finding of fact, and have no right to know more unless information is voluntarily communicated.” And in United States v. Adams (6 Wall., 101) the Supreme Court refused to go behind the findings of fact of this court, and declared that the very intent of their rule requiring such findings to be made was that they should be conclusive as to the facts found.

The fundamental points of the value of the vessel and cargo being thus disatinctly found by the court, and the damage thereto not having been established, we consider it u according to the principles of justice” to allow the several claimants the full amount of the sixty per cent, of their claims, which the “ board in China” disallowed.

The same allowance is made in favor of the administrator of Matthew Eooney, the master of the Caldera, for goods and personal effects belonging to his intestate, which were on the vessel, were lost on her, and were uninsured.

The claimants ask interest on their claims; and Judge Hunt concurs with the writer of this opinion in holding that, inasmuch as the deduction of sixty per cent, by the board was unwarranted in law and in fact, that portion of their claims was due to the claimants from the date of the approval of the board’s awards by the American Minister in China, namely, January 2G, 1860 ; and that, as the fund, while in China, earned five per cent, per annum, and since its transfer to the Department of State has earned more than that rate per annum, it is “ according to the principles of justice” to allow the claimants interest at that rate from that date. Judge Nott, in order that the question of interest may be fairly presented by the record in the event of an appeal, concurs in its allowance, but is of the opinion that Congress, having expressly allowed interest in the case of the Neva (15 Stat. L., 440), and not having allowed it in the case of the Caldera, and the money having been in no sense owing to the parties, no interest was intended by Congress to be allowed.

The judgment of the court is, that the several parties recover the sum of sixty per cent, disallowed by the commissioners, with five per cent, interest thereon from January 26, 1860, to the present day, as follows:

No. 11,968. Henry W. Hubbell.$8,507 02
Interest.8, 661 80
Total. 17,168 82
No. 11,969. Henry W. Hubbell.. . $14, 122 91
Interest. • 14, 379 93
Total.. 20, 982
No. 11,970. The Sun Mutual Insurance Co 05 21,363 80
Interest. 42,345 85
11,971. 959 18
The China Mutual Insurance Co Interest. Total 976 63
No. 1,935 81
11,975. 6,584 54
John C. Wilber, administrator .. Interest.-. Total. 6, 704
No. 34 1,3288 88
12,058. 2,850 00
John P. Paulinson, administrator- Tn+Arpst. .. 2,901 85000
.__ ....... 28,502 90 2,901 85
Total. 5,751 85

Davis, J.,

with whom concurred Richardson, J.,

dissenting.

The minority of the court is of opinion that the ju Igments which have just been announced are not warranted in fact. It also seems to us that they rest upon principles at variance with sound doctrines of international law, and in conflict with the interests of this nation in its international relations. We are further of opinion that they are not authorized by the act of June 19, 1878, which grants the only power we have to hear •and decide these cases. In presenting the reasons for our conclusions, we will consider, as briefly as the imi>ortance of the subjects will allow: I. The origin and nature of the Chinese indemnity fund. II. Its administration by the United States. III. The facts upon which the claimants ground their claims upon it. IY. Their legal rights and obligations in that respect. Y. Their participation in the former distribution of it. YI. Their rights under the act of June 19 1878.

• I. The origin and nature of the fund.&emdash;We must disembarrass ourselves at the outset of the fallacy that China ever admitted liability for any specific claim against the fund, or made any Total No. payment with a purpose that it should be applied specially on account of such a claim. In discussing this branch of the case, we shall, under the authority of Meade’s Case, 9 Wall., 691, and De Celis’s Case, 13 C. Cls. R., 117, refer to some well-known general historical facts connected with the treaty which are not in the findings of fact.

The 19th article of the treaty of 1844 provided that the Imperial Government should protect American residents in the five ports (8 Stat. L., 596). By the 26th article it was stipulated that if the merchant vessels of the United States should be plundered by pirates, or robbers while within waters over which the Chinese Government exercised jurisdiction, the local authorities would cause the property to be recovered; but that if, by reason of the extent of territory and numerous population ■of China, the property could only in part be recovered, then the Chinese Government would not make indemnity for the goods. (Ib., 598.)

The Taeping rebellion broke out in 1850; and when the Caldera was seized the rebels were in undisturbed possession of the rich province of Kiang Su and Nanking, its capital, between Peking and the five ports. A series of injuries to persons and properties of Americans in China happened between 1844 and 1858, in consequence of the social anarchy and executive paralysis which were caused by the rebellion. Some of these acts were subject to the provisions of the treaty respecting violence on land; others, like those done to the Caldera and her cargo, to the provisions relating to piratical acts done in Chinese waters. From time to time, as injuries occurred, reclamations were made upon the local authorities. China invariably denied any and all liability.

In 1858 a treaty was concluded which authorized an American diplomatic representative to reside at Peking. (12 Stat. L., 1023.) In entering the western family of nations China relieved herself of past causes of difference by concluding the claims convention, whose fruits form the subject of this controversy. (Ib., 1081.) Without referring to any particular claim, the American plenipotentiary demanded a gross sum in satisfaction of all claims. Without admitting liability for any, the Chinese negotiator offered a less sum to be rid of all. They agreed upon a compromise amount, which was paid and received as a satisfaction.

By accepting this money the United States agreed to satisfy from it all claims for which China was liable; but they were bound to pay out of it only what China was bound to pay into it. In the preliminary negotiations and in the treaty, there was no mutual recognition of any specific liability in China for particular claims or for settled amounts. It therefore became the duty of the United States, in their new relation to the claimants, to scrutinize each claim. This duty was the same whether the United States were regarded as trustees for China, paying out the fund as China should have paid it; or, as a trustee for their own citizens, distributing it according to the principles of its municipal law; or, as a sovereign, dealing with subjects according to the dictates of conscience.

The previous act of their Executive in demanding reclamation, no matter how strongly expressed, did not excuse them from making these inquiries. An international reclamation is only an invitation from the one government to the other to inquire into the merits of the demand. If the government which makes the demand then rests (as the United States rested after the refusal by China), it is not committed to the justice of the claim, or to the obligation to enforce it. If the receipt of a sum in gross from the other government in satisfaction of all demands imposes the obligation of distributing it among those entitled to it, bona fide claimants have a right to have the com- .• mon fund protected against spurious claims. This involves a judicial inquiry into the merits of each claim presented for participation in the distribution, and into the just amounts of those which have merit. But if it can be maintained that the act of the Executive in presenting a claim to a foreign government is in effect a determination that the claim is just, the distributing court is deprived of jurisdiction over the main question as to the merits. The majority of the court appear to give this force to an Executive act. We are constrained to disagree with them. During the present century thirteen courts have sat, under statutes of the United States, for the purpose of distributing-funds received under treaties, in satisfaction of international demands. So far as we are advised, it has never been held that a previous Executive demand precludes the court from inquiry into the legal merits of a claim; but the uninterrupted practice has been to the contrary. Certainly the commission which sat in China exercised that power, and in the case of these very claims assumed iu their discussions that they were empowered to sit in judgment on their merits in law..

The instructions of Mr. Cass and Mr. Marcy were plainly regarded at that time as (as in fact they were) domestic acts done by a superior to a subordinate. They, were in no sense international^ and they were then and still are no bar to a judicial investigation of the subjects to which they relate. An Executive instruction is conclusive in matters intrusted exclusively to executive discretion (6 Op. Attys. Gen., 626); but on subjects which are referred for judicial determination, it is entitled only to the weight which the character, learning, intelligence, and discretion of the particular officer give to it. No imputation is cast upon the Executive if the judiciary fails to agree with it.

After the commissioners had done their work, as we shall see in the next branch of the inquiry, there was a large surplus left from the fund. In a message to Congress, President Buchanan said that this “belonged in equity to the Chinese Government.” President Lincoln said substantially the same thing. In President Johnson’s time the money was received in Washington and invested in a separate fund in the Department of State, where it still is. It has never been in the Treasury. President Grant more than once reported its condition to Congress. Bills were introduced there for the purpose of covering it into the Treasury, but Congress invariably neglected or declined to do so. The latest evidence of the purposes of that body is in the act of June 19, 1878. It looks upon the fund as still applicable to the payment of proper claims, and still it makes no provision for covering into the Treasury as the property of the United States what may be left after these cases shall be determined. It does not regard the remainder as belonging to the United States; the only other possible owner is China. For these reasons we assume, as a starting point in our inquiry, that this fund equitably belongs to China, except so far as claimants are entitled to participate in it in consequence of injuries inflicted in China, for which the Imperial Government was internationally responsible to the United States when the convention of November 8, 1858, was concluded, and that we are bound to see that nothing is taken from it for which China was not internationally liable.

II. The administration of the fund by the United States. — The amount paid by China was $735,238.97. By the act of March 3, 1859 (11 Stat. L., 408), Congress authorized, the President to appoint a commission to aid the Secretary of State in distributing this money. The purpose of Congress in this act is plain. The commissioners were at first to act as auditors only. They were empowered to receive and examine claims. They were required to report the results of their auditing to the diplomatic representative of the United States in China. His approval was necessary before the audits against the fund could be operative. On receiving that, they were to become “awards” payable from the fund.

The commissioners selected for this responsible work were fitted for it by special training. Both were residents in China; one was in the consular service there. Both knew, directly or indirectly, most of the claimants, most of the witnesses, and most of the transactions to be investigated. Each was a man of integrity and personal character. The record furnishes abundant proof that each was a man of intelligence and capacity.

In making their awards and distributing the money, the commissioners, as we have already said, scrutinized all claims presented. Some they allowed in full; some they rejected in foto ; and some, among which were the Caldera claims, they allowed in part and rejected in part. After they had rendered their decisions and the awards had been paid, a further payment was made in China from the fund to the representative of Booney, the master of the Caldera. After payment of all these sums, and of all incidental' expenses, $220,000 remained. (Dip. Cor. 1865, pt. 2, p. 443.) This was transmitted to Washington. Since its arrival here, one payment has been made from it, under the provisions of the Act of February 22, 1869 (15 Stat. L., 440). On the 8th day of October last it amounted to $614,373.63.

III. The facts respecting the claimants’ demand upon the fund.— In October, 1854, the Chilian bark Caldera, commanded by Matthew Rooney, a naturalized citizen of the United States, lay at Hong-Kong taking in a cargo on American account for San Francisco. The vessel and some of the cargo was also insured on American account, and some was uninsured. She had also on board some property of the master, part of which was a small risk on his own account, and the remainder personal property, like clothing, silver table-service, &c., not stowed in the hold.

On the 5th day of that month, at 5 o’clock in the morning, be bark set sail on her voyage. On the 7th day of the same month, at 4 o’clock in the afternoon, she dropped anchor in a )ay in the island of Koelan, off the coast of China, to the south if Macao. Daring that night she was seized by pirates. Her condition at the time of her seizure may be learned with reasonable accuracy from the master’s protest. A typhoon struck the vessel soon after leaving port. The master describes this, and then continues thus :

“Double reefed the topsails; gale increasing; furled all sail; vessel under bare poles; the wind blowing a perfect typhoon; heavy cross-seas running, and the vessel labored heavily. The typhoon increasing, and higher cross-seas running, the vessel strained much. The sails, which were snugly furled and well secured, were blown to ribbons by the fury of the gale. The mizzen-mast and fore and maintop-gallant masts, and the jib-boom were blown away. The vessel still laboring heavily, the rigging became slack, and the masts worked to and fro with great violence, endangering the hull of the vessel. The vessel leaking badly (though when she left port she did not leak a drop), the crew being disabled and injured, he resolved to seek for shelter, and he steered for the nearest land; and on the 7th day of October, at 4 o’clock p. m., sighted Fire Islands about two miles distant, in the vicinity of which was discovered a bay where there was a smooth sea. In going in for an anchorage, the vessel took the ground in three fathoms of water; he succeeded in getting her off into four fathoms, where he anchored. The vessel, being badly strained, leaked very much, and the pumps were consequently properly attended to. The night was dark and stormy, and the men were employed at the pumps to keep the vessel free, and that while at work they were surprised by the crew of three large junks, which boarded the ship suddenly.”’

These junks were part of a large fleet of pirates collected at that island in sufficient numbers to set the Chinese authorities at defiance. They robbed the vessel of its cargo, all of which, with a slight exception, disappeared, and they destroyed the vessel.

The master’s account shows conclusively that the vessel had suffered serious injury before it was seized by the pirates. If she had not been destroyed she could not have been repaired at Koelan. It would have been necessary to take her to Hong-Kong. The cost of towing vessel and cargo to Hong-Kong would have been $5,000. As the value of the cargo (exclusive ofRooney’s property) was $62,754.24, and the policy on the vessel was for $20,000. it follows that the ship’s proportion of the salvage would have been $1,208.04. After arrival at Hong-Kong it would have cost $13,500 to put the vessel in repair. By this process the loss on the policy on the vessel, caused by the acts of the pirates, is fixed at $5,291.96, so far as it is shown by any proof outside of the award.

The condition of the cargo at the time of the seizure is left more to conjecture, except as it is settled by the award. It is plain, even to a layman, that it was badly damaged. The experts said that in their opinion fully one-third of the teas were wet in the hold by water which had been thrown among it by the rolling of the vessel, and that another part, but how much they could not say, was damaged by water from above through the hatches and open seams. There were no conveniences at Koelan for drying and storing these wet .teas. Had they been saved, it would have been necessary to take them to Hong-Kong. Their proportion of this salvage would have been $3,791.96, or about 6 per cent, of their cost. This amount would have to be deducted from the market value of the damaged teas at Hong-Kong in order to ascertain their value at Koelan.

The majority of the court has found as a fact, in finding XXXII, that although it appears that damage was sustained by the vessel and cargo from perils of the sea, the amount of such damage has not been established by either party. This finding seeks to determine as a fact what is in reality a question of law. Other facts in the finding show that the commissioners did audit and determine, and with the approval of the minister did award, that the property suffered sea damage to the extent of 60 per cent, of its value, and that the parties expressed their satisfaction with the amount awarded, and that the several amounts awarded were received without protest or dissent, although there was ample time for it. Some of this evidence was a judgment — the highest class of proof; all of it was pertinent. The conclusion deduced from it by the majority, that the amount of the damage is not established, is in reality a conclusion of law as to the force of the former judgment. It is reviewable above, although it takes the form of a finding of fact. (Meade’s Case, 9 Wall., 722; Clark's Case, 96 U. S., 49.) In Calhoun’s Case (14 C. Cls. R., 193), it was held that when three members of the court concur in a finding of fact, it is conclusive; but the present minority did not then, and do not now, assent to tbe doctrine that wben it appears by the findings that an ultimate fact in them is a conclusion of law, and that all the previous facts from which it is deduced are in the findings, the minority are concluded from dissenting to it. The right of dissent is co extensive with the right of review; and in such case the right of review exists. In our-opinion, the award is competent proof to show, and, in the absence of contradictory proof, fixes the amount of the sea-damage at Koelan at 60 per cent, of the cost of the property. It would have required about 6 percent. of that cost to remove the teas to Hong-Kong. The commissioners, therefore, found the damage to be about 54 per cent, of the cost at Hong-Kong. There is a great probability, derived from a general knowledge of the forces which worked the injury, that a cargo of teas in such circumstances would have depreciated to that extent.

IV. The legal rights and obligations of the claimants. — The value of the property or of the policies at the time of the sailing of the vessel do not appear to have been in dispute. The title of each claimant also was not questioned. There was no discussion there as to the subrogation of the insurers, or as to the rights of Mr. Hubbell as assignee. It was apparently assumed that the Executive decides in whose name the United States will present international claims, and that its action in this respect cannot be judicially reviewed without authority from Congress.

The statute of1859 required the commissioners to exercise their powers in conformity with the provisions of the claims convention of 1858; and according to the principles of justice; and in accordance with the canons of international laio.

The only provisions of the convention which could affect their proceedings were those relating to the payments into the fund. The commissioners had regard to this in the rate of interest which they fixed as compensation for delays in payment.

The principles of justice, as the phrase is used in the statute, is not a vague sense of equity. Congress had in mind the well-defined distinction between the principles of justice im planted in all men by the Creator, (which commentators on the civil law style the Jus Gentium, or the Jus Naturale), and what'we call International Law, which the Romans termed Jus Fetiale, and which some later writers called the Jus inter Gentes. (Wheaton’s Histoire des Progrés du Droit des Gens, vol. 1, p. 142, 3d ed.; 1 Lawrence’s Commentaire sur Wheaton, 106 $ Maine’s Ancient Law, cb. III; 4 Mommsen’s Rome, 655, American Edition.) Those principles of justice were as capable oí defintion as any known legal principles. For onr purposes it is sufficient to indicate two:

1. In the means by which justice is to be attained, the court is freed from the technical -rules of evidence imposed by the common law, and is permitted to ascertain truth by any method which produces moral conviction. This proposition is self-evident. Evidence, in its narrow and technical sense, is a machine for the discovery of truth, fettered and restrained by municipal law and by local regulations, which vary greatly in different countries. In its- wider and universal sense it embraces all means by which any alleged fact, the truth of which is submitted to examination, may be established or disproved. (1 Green. Ev., § 1.) International tribunals are not bound by local restraints. They always exercise great latitude in such matters (Meade’s Case, 2 C. Cls. R., 271), and give to affidavits and sometimes even to unverified statements the force of depositions. The statute failed to direct the commissioners to administer oaths, not only because they were to arbitrate internationally upon the liability of China, but also because they might have to take the testimony of Chinamen, who were without sense of the responsibility of an oath. They might also be obliged, when proof was lost, to estimate losses from general facts within their own knowledge. Congress gave them the right to do this, so that no one in the little American colony, where the work was to be done, should suffer from technicalities.

2. Complete reciprocity of obligation exists; so that one power is not to be held to the duty of a performance from which the other power under similar circumstances would be released. This proposition is also self-evident. If a duty were unilateral, it could not from its very nature spring out of a rule created by universal and necessarily reciprocal recognition and obligation.

International laio, the third phrase used in the statute, has been often defined by elementary writers. In onr opinion a judicial tribunal can recognize as authoritative only those princi* pies which are either sanctioned by the municipal law of the country or are concurred in by the general practice of nations as expressed by executive or judicial organs. Law, as applied to man or society is a rule for action prescribed by authority. We know of no human authority which can assume to dictate to a sovereign nation except its own municipal laws and its treaties and tbe concurrent practice of tbe great family of nations.

Among tbe principles sanctioned by tbe concurrent consent of nations are two which are pertinent: 1. That a nation should observe its treaties, whether the engagements aré reciprocal or unilateral. 2. That the unwritten obligations which custom imposes on nations in their international dealings are reciprocal. Inter Rationed lato, as well as the principles of justice, recognize the duty of nations to observe the divine maxim, and do unto other powers as it would have them do were the case reversed.

The first question for the commissioners to determine was whether China was internationally responsible for the acts of the pirates. Mr. Eobert McLane, who was the American representative in China when the outrage took place, and who knew the circumstances under which the seizure was made, and the political condition of China, and the strain Avhich the rebellion was making upon her social forces, and who was in the best position to pass judgment on her good faith, advised his government that China was not responsible. The trained capacity of Mr, McLane for diplomacy, and his practical knowledge of the international rights and duties of nations, entitle his opinion to much consideration. Mr. Wells Williams, of whom the same may be said, and Commissioner Bradley were of like opinions. Commissioner Roberts differed from his colleague. Mr. Ward, the minister, to whom they referred their differences, settled the matter by turning to the instructions from the Department of State. Mr. Marcy had instructed Mr. Ward’s predecessor to present the claim diplomatically. This was done in 1855; some years before the conclusion of the claims convention. In so far as the instruction can be construed as an expression of the Secretary’s opinion that China was liable internationally on the facts as we now have them, it was wrong. But Mr. Marcy does not review thefacts, and therefore we cannot judge how far he founded his opinion on ex parte statements which turned out on investigation to be untrue.

Mr. Cass wrote after the conclusion of the convention, and in view of the coming arbitration, and therefore avoided the tone of a categorical instruction. He reviewed the facts as he understood them. They differ materially from those which this court now finds. Mr. Cass said that it was alleged that the local authorities participated in the plunder; that the robbers were known to the authorities; and that the pirates were taken into the imperial service with full knowledge of their Crime. If these facts should be proved, he thought China would be responsible, both under the treaty and according to the law of nations.

That may be so; but in the present findings none of these facts appear, although we were asked to find them. The local authorities had access to the booty and did not restore it; but they may well have been prevented by the overwhelming superiority of the pirates, and, in our opinion, such was the fact. The pirates were driven within the imperial lines by the force sent against them, leaving their plunder behind them. Eventually they became part of the imperial service. We have not found a guilty knowledge and intent in their employment by the government. Their junks may have been, and probably were, captured by the imperial fleet, and the crews may have been, and probably were, forced into the government service. Both Mr. Marcy and Mr. Cass wrote without the light which our own war has thrown upon the inability of the best-disposed government to enforce its will at all points within its jurisdiction during the pendency of a gigantic armed rebellion. Had they written later, they would have hesitated before they committed the United States to such a reclamation.

A nation is not ordinarily esteemed to be liable internationally for injuries done to the property of foreigners within its jurisdiction. If Chinese property is destroyed in California, or a British vessel pillaged by wreckers in Alaska, international responsibility in damages does not necessarily follow. By the comity of nations it is assumed that the civil'power acts in good faith; that its laws in their ordinary operation afford requisite protection; and that if protection fails its courts furnish the means to procure compensation and to punish the wrongdoer. A foreigner who resides within a country is only entitled to enjoy the same protection and the same indemnity which are accorded to the citizens or subjects. (Mr. Webster to Mr. Calderon, November 13,1851.) When the courts of the country are so bad or so corrupt as to excuse resorting to them ; or when all redress through them has failed; or when a despotism affords no protection to natives; or when the injured nation has letermined to question the good faith of the other power, a ease irises for an international reclamation for such a cause.

In China, however, the right of resort to the court and the amount of protection afforded by law to Chinese were nullities as to foreigners. The unilateral treaty provisions concerning protection and indemnity were made to take their place. The findings make no question as to the good faith of China. If China failed in the performance of any engagement to protect or to restore the claimant’s property, the failure was not designed. This does not necessarily relieve China from the consequences of failure, if it occurred, but it may excuse it from responsibility outside of the treaty.

As soon as news of the piracy was received, China contributed its quota of war vessels to a combined expédition to Koelan for the purpose of arresting the pirates, and punishing them according to law, and obtaining possession of the property in order to restore it to its owners. The expedition went to Koelan and broke up the nest of pirates, and drove a portion of them inside the lines of the Chinese fleet in Canton itiver, and restored a portion — unfortunately a very small one — of the property.

Thus far China appears to have willingly performed its duty as well as it could; but it did not return the property. The only express engagement in the treaty related to a partial return of the property, in which case China was not bound to make indemnity for the remainder. The treaty made no provisions respecting a total loss, or respecting indemnity for a partial loss when the failure to return the remainder was occasioned by causes not named in it. As to those cases, China was bound to do what could be required of the United States under like circumstances. If the United States had been pressed by a great rebellion, as China then was, taxing its energies to the utmost, its government would undoubtedly have claimed exemption from liability or blame for not preventing a piracy at a point on its shores beyond the insurgent lines, or for not capturing and returning goods which had been seized and destroyed.

Regarding himself as bound by his instructions, the minister decided that China was liable. The commissioners adopted his conclusion and proceeded to determine how the liability should be measured. On this point they decided, apparently without disagreement, that it was to be measured by tlie value of the property when seized and destroyed. In this they unquestionably did right. It would have been a. mockery of justice to measure the liability by values which the vessel and cargo had lost at sea before arriving in Chinese waters. Congress did not mean to assent to a principle which would require the United States in like circumstances to make good losses occurring before the arrival of ships in American waters, nor did they invite the commissioners to sanction it.

The artificial relations between assurers and assured, which are now invoked to cast responsibility on China, relate only to the rights of parties inter sese. In the case before the commissioners they could not be considered. The insurers insured both against perils of the sea and piracy. They were equally liable for a total loss whether the vessel arrived at Koelan in good condition or injured. As, therefore, the technical rule in regard to the proximate cause of loss could in no event limit the insurer’s liability, it would have been wrong to invoke it simply to enforce upon China a measure of damages unknown to international law.

The protest showed that the property arrived in Koelan badly injured. The owners and insurers were then as they are now in the position of having proved affirmatively that the invoices and policies were untrustworthy as measures of value. The commissioners then either allowed the claimants to produce evidence, or sought themselves for evidence, on these points in the claimants’ interest, which is not in the record or findings. Without such proof they could not have found for the claimants. If they sought it themselves, they acted entirely within the spirit of the statute.

It is said that the evidence of the condition of the property at the time of the seizure was destroyed by the Chinese, and that, therefore, everything should be taken against the spoiler. But the Chinese were not the spoilers. The ravages were made by armed enemies of China, who were cruising in organized fleets sufficiently numerous to bid defiance to the war junks of China and to overawe the local authorities at Koelan.

The commissioners decided that all the claimants, except Boo-ney, were entitled to recover. They next determined that they were entitled to interest. On this point they determined t£to place on record the fact that interest has been allowed to the claimants at tbe liberal rate of 12 per cent, per annum in consideration of tbe circumstance that there will be some delay in making payment of tbe amount awarded.” They did right in allowing interest; but it appears by tbe findings that five per •cent, was tbe rate in China at that time.

Y. The claimants' participation in the former distribution of the fund. — Tbe proved loss on tbe policy, as we have seen, was $5,292.60. Tbe rate of interest proper to be allowed was 5 per cent. Interest was calculated for five years. At that rate tbe amount allowed on tbe vessel should have been $0,615.75. Tbe commissioners actually allowed $15,200. They obtained this amount by adding to 40 per cent, of tbe policy $1,500 spent by tbe underwriters on tbe vessel for salvage, and giving 60 per cent, interest on all. It is plain that they disregarded tbe evidence of tbe experts and audited the loss on tbe vessel on other evidence. Before passing to tbe next items, we take occasion to say that in our opinion the'underwriters on tbe vessel were not entitled to compensation, even on tbe theory of liability adopted by tbe commissioners from Mr. Cass’s instructions. The Chinese were guilty of no violation of tbe treaty in not restoring tbe vessel. Tbe pirates destroyed it and made its return impossible.

Tbe commissioners’ audit of tbe value of tbe cargo at tbe time of tbe seizure is tbe only proof on that point in tbe record. If it bad been stricken out, tbe claimants could have recovered nothing. There is abundant contemporaneous evidence that it was right. Tbe claimants or their representatives in China approved of it. Mr. Ward wrote on this point officially to tbe Secretary of State: “As far as I have been able to learn, every claimant is content with the amount awarded. Such certainly ought to be the fact.” This court has found as a fact that there was no protest, although tbe claimants had ample time to make one. It having been said that some of tbe underwriters bad protested against it, Mr. Wells Williams wrote officially to Mr. Burlingame: “Among tbe papers now on file relating to tbe Caldera, there is no copy of a protest or appeal from Messrs. Bussell & Co., when they received tbe award; nor when I paid them tbe first dividend of $21,950.62 in January, 1860, did I receive a protest, and I have no recollection of bearing of it at any time after that date. Messrs. Alvord & Co., whose claim for losses at tbe same time was decided on tbe same principle, made no appeal against their award.” (2 Dip. Cor. 1865, 412.) Some years later some of, the insurance companies attempted to reopen the question diplomatically. They did not then question the facts as found by the commissioners. They rested their claim to a rehearing on the allegation that they had not had time to prepare an argument to cover the case, and that “the board, not being conversant with insurance, did not consider the merits of the marine loss through the protest with full evidence and testimony before them.” (Ib., 410.) When this statement that they had not had time to prepare an argument was submitted to Mr. Wells Williams, he said: “In truth this case was illustrated by more evidence direct and collateral than any other one presented, not only as to the condition of the ship and cargo after the storm, the circumstances of the-several attacks of the pirates, and the disposal of the cargo-after she had been pillaged, but by full arguments in regard to the legal and international features involved in the transaction. * * •* It is always difficult to disprove negative assertions, but in this case I cannot see how the distance or the limited session of the commission operated against the claimants,, for they had a longer notice than they now say would have sufficed, and seem to have fully availed themselves of it.” (Ib., 411.)

YI. The claimants' rights under the act of June 19, 1878. — The grant of power in the act is as follows:

“Any person or persons, or body corporate, holding and making any claim upon the balance of the fund usually designated and known as ‘ the Chinese indemnity fund,’ under the-control of the Department of State of the United States, and now unappropriated, for loss sustained by the plunder and destruction, in the year 1854, of the bark Caldera and property on board of said vessel, may, at any time within twelve months after thepassage of this act, commence proceedings in the United States Court of Claims against the United States, in the same manner as other suits are brought, pursuant to and in virtue of the statutes of the United States and the rules of said court; and that the said Court of Claims shall have full jurisdiction to hear and determine such claim or demand according to the principles of justice and international law.”

The act contemplates proceedings supplementary to those of the commissioners. The powers granted are to be exercised, as were the powers granted to the commissioners, according to the principles of justice and international law. We agree with the majority that the act contemplated the possibility of new claims being presented on account of the Caldera; but we further hold that on its face it applies only to claims not presented and passed upon in Macao in 1859. There is no express warrant for setting aside the results of the former investigation .after their approval by Mr. Ward.

We also agree with the majority that before the passage o f the act of 1878 the action of the board was final and conclusive for all time, and barred a recovery on the merits in this court (Meade’s Case, 9 Wall., 725); but we hold that the bar raised by the award of 1800 is not set aside by the act of 1878, when construed alone and without reference to its legislative history. It authorizes us only to hear and determine claims against the fund. But a demand which has been adjudicated upon and settled and paid is no longer a claim. It has been extinguished and no longer exists.

This very poin t has been decided. In 1866 Congress resolved that the claim of Richard W. Meade be “referred to the Court ■of Claims for adjudication.” (14 Stat. L., 611.) The case came before this court. In its third conclusion of law, this court decided that the resolution “referring back this case after the same had been once decided by the former Court of Claims adversely to the claimant was not a waiver of the said bar, and does not allow this court to adjudge and decide the case upon ■the merits, irrespective of the decision and dismissal by the said commission.” (7 C. Cls. R., 168.) The Supreme Court, passing upon this, said: “We concur also in the third conclusion of law.” (9 Wall., 725.)

In 1869 Congress reopened the commissioners’ decisions as to another claim which had been rejected. They then said “ that the Attome3'r-General be, and he hereby is, directed to examine the claim of Nott & Co., and if in his opinion the said claim ■ought to be paid, he is authorized and instructed to order the same to be paid.” If equally explicit language had been used respecting the present claims, they would have been before us .for adjudication.

When we refer to the legislative history of the act it appears •that Congress did intend to set aside the bar, but only in part and upon conditions. The committee of the Senate and the House committee made identical reports recommending the .passage of this identical act. In that report they said :

“Under an act of Congress, passed in 1859, commissioners were appointed to pass upon all claims upon this Chinese indemnity fund. These commissioners held their sessions at Macao, in China, and to them the papers in the Caldera case were forwarded by Mr. Cass, then Secretary of State. The claim was duly filed with the commissioners, who made a deduction therefrom of 60 per cent., on the ground of a supposed prior damage by sea-water in the cargo. This deduction appears to have been made without sufficient evidence of its justice, and under a misapprehension of the, law applicable to the case, and the claimants had no opportunity of being heard upon the question.
“They were told that the acceptance of tbe 40 per cent, allowed them would not preclude a rehearing of the case at Washington j. but as the act of 1859 did not provide for an appeal from the decision of the commissioners, such a rehearing cannot be had without an act of Congress.
“Your committee are satisfied, from the evidence submitted to-them, that it is but just that the underwriters should be allowed to present the evidence, which, if they had time or proper notice, would have been presented to the commissioners to some competent tribunal for a final decision as to the justice of their claim.”

If this report may be reeeived to show the purpose of the legislature, the act of 1878, 1st, authorized the Court of Claims to inquire whether under the law applicable to the cat e any deduction could be made from the value of the cargo on the ground of damage by sea-water before the liability of China attached; and, 2d, in case of a decision of this point of law adverse to the claimants, then that the claimants should have the right to present here evidence to warrant a reduction of the amount found by the commissioners which was not presented to the commissioners for want of time or proper notice. If no-such evidence should be presented, then the old award was to stand. Congress did not intend to open .the award as to the-40 per cent. It opened it as to the 60 per cent, only for two purposes: 1. The claimants were before Congress as they are before this court and as they were before Mr. Burlingame seventeen years ago, urging that the doctrine respecting proximate cause of loss laid down in Schiefflin v. New York Insurance Company (9 Johns., 28) is applicable to these cases, and that they are entitled to the full value of the ship and cargo, irrespective of sea-damage. Congress authorized them to have the question determined here. We have shown that the doctrine has no application in these cases. 2. The claimants also urged before Congress that they were in possession of evidence which had not been' before the commissioners, and which might have reduced the estimate of the sea-damag’e. The eommitte recommend Congress to say to them, “ Take it before the Court of Claims. If the new proof is what you say it is, that court may hear it and do you justice.”

Even if we may interpolate the qualifying provisions of the report into the statute, and thus modify its clear provisions, we are not authorized to reopen the old issues on the old proof. That was weighed and settled twenty years ago by men in every way competent to settle it, upon competent evidence, some of which is manifestly not in the record. No competent evidence is now offered which was not offered and considered at the former trial. It appears by finding XXXYI that all the proof which the commissioners sent to Washington is before us. Their settlement was accepted and approved by all parties interested at the time it was made. This court has no power on the same evidence to reopen it; and if it had the power the minority of the court would not be disposed to increase the amount then allowed.

Finally, and to recapitulate, we are of opinion, for reasons already given—

1. That the executive and legislative branches of the government .have (each by separate action) indicated an opinion that the Chinese indemnity fund belongs to China, except as to claims for which China was internationally responsible under the provisions of the treaty of 1844 and the claims convention of November, 1848.

2. That China was not internationally liable for the acts of the pirates at Koelan.

3. That if so liable, it was liable only for the value of the property at the time of its seizure by the pirates.

4. That that value was proved to the satisfaction of the commissioners who were authorized to audit it.

5. That their audit.was approved by the diplomatic representative of the United States and became an “award” under the statute of 1859.

6. That in proceedings under the act of 1878 the claimants can refer to that award to prove their title to the property seized and its forcible capture, and that without such reference there is no evidence of title in the record or findings.

7. That the claimants having proved affirmatively that all the property had suffered sea-damage before its arrival at JKoelan, the burden of proof is on them to show the amount of that injury if they rely upon the policies- and invoices as evidences of I value.

8. That the award \s prima facie evidence to prove the value of the property at the time of the seizure, and that it is collaterally supported by other facts in the findings and in official documents printed by order of Congress.

9. That no other evidence as to the value of the property at the time of the seizure being offered by the claimants under the provisions of the act of 1878, the award is conclusive on that point.

10. That the awards which were favorable to the claimants were right as to amounts ; or if there was any error it was in their favor.

11. That the representative of Rooney cannot recover, because China was not responsible for his losses.  