
    THE LEGHORN SEIZURES. GEORGE H. FIELD, Administrator, v. THE UNITED STATES. AUSTIN J. MONTGOMERY, Administrator, v. THE SAME. GEORGE MEADE, Administrator, v. THE SAME.
    [French Spoliations,
    853, 1987, 2686.
    Decided March 7, 1892.]
    
      On the Proofs.
    
    In 1796, war existing between France and Austria, Napoleon enters the neutral territory of Tuscany and seizes the property of American citizens. It does not appear that the claim was ever pressed by the United States against either France or Tuscany. The American owners go before the board of commissioners under the treaty of 1803 in the character of creditors and present their de.mands as debts. The commission decides against them for reasons not given.
    I, An American vessel,on the high seas is in contemplation of law American territory. The obligation of the Government to protect property under its flag is as obligatory upon the sea as upon the land.
    H. When an American merchant carries his goods into a foreign port, the obligation of his own Government is to see that he receives from the other the full measure of protection which the latter accords to its own citizens.
    III. When the treaty with France 1800 was made, there were two classes of claims the subject of negotiation, the one of which was designated by the general term of “Indemnities,” the other by the general term of “Debts.” The former were relinquished to Franee; the latter were declared to be still binding and obligatory. The liability of the United States to their citizens springs from the former and not from the latter.
    IV. The Leghorn seizures in 1796 were land captures on neutral territory, by military force, accompanied by assurances of payment on the part of the French authorities. The subjects of diplomatic complaint between 1793 and 1800 termed “ claims for indemnities” in the treaty of 1800, were the depredations on American commerce by French cruisers, followed by the unjust and lawless condemnations by French tribunals. The claims relinquished to France by article n of the treaty 1800 did not include claims for land captures on neutral territory.
    V. In 1796, Tuscany being neutral territory, the United States owed only a qualified protection to their citizens who had voluntarily carried their goods there, and could not be Called upon to proceed against Franco for the Leghorn seizures unless they deemed the circumstances such as justified them in going behind Tuscany and calling the real wrongdoer to account.
    
      YI. A rule laid down by a belligerent concerning’ land captures can not change tbe character of the transaction nor transmute neutral territory into the high seas nor make it subject to maritime law.
    VII. The French Spoliation Act, 1885, confers jurisdiction, but does not assume liabilities. Congress conceded that several classes of claimants seeking redress for French spoliations might come into this court and have the question of the liability of the United Stages determined, and conceded nothing more.'
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court.
    I. Upon tbe 16tb of March, 1885, petitioner was duly appointed and qualified by tbe probate court of tbe city and county of Philadelphia as tbe administrator de bonis non of tbe estate of John Field tbe older, late of said city. Tbe said John Field tbe older was tbe .survivor of tbe firm of John Field & Son, said firm consisting of John Field tbe older and John Field tbe younger, both of whom were citizens of tbe United States.
    II. On or about tbe 31st day of January, 1795, tbe said John Field & Son and one Henry Phillips caused to be shipped at Charleston, S. C., for their joint account and risk, by tbe firm of Joseph Peppin & Co., of Charleston, a certain cargo of rum, sugar, coffee, pimento, candles, flour, tobacco, bides, beeswax, tar, rice, indigo, and sundry other merchandise, in and upon tbe Danish brig Young Frederick, Capt. Harder, and consigned to Messrs. Earl, Hodgson & Drake, merchants at Leghorn, Italy, for sale.
    III. Afterwards, to wit, on or about tbe 10th day of October, 1795, tbe said firm of John Field & Son caused to be shipped at Philadelphia for Leghorn, Italy, in and upon the Swedish ship Kapperer, Capt. Blom, a certain invoice of rocoa, for their sole account and risk, which said invoice having arrived'at Leghorn was landed, and deposited for sale in tbe warehouse of Messrs. Earl, Hodgson & Drake, merchants at Leghorn.
    IV. The proportionate interest of the said John Field & Son in the goods and merchandise shipped on the Danish brig Young Frederick, for Leghorn, as aforesaid, being 58 puncheons of rum, was of the value of $4,099.11. The value of the 31 casks of rocoa shipped at Philadelphia by the said John Field & Son on the Swedish ship Kapperer for Leghorn $5,233.47, which last-named sum added to the sum of $4,099.11, tbe loss to tbe said Jobn Field & Sou on tbe cargo of tbe brig Young Frederick, makes tbe total loss to tbe said Jobn Field & Son, on account of tbe cargo of both of .said vessels, amount to $9,332.58.
    Y. Tbomas and Jobn Ketland, together with tbe said Henry Phillips and one Simon Walker, citizens of tbe United States, on or about tbe 7th of September, 1795, shipped from Philadelphia upon tbe Eaguson ship Columba Fortunata, A. Pav-oriek, master, for Leghorn, in Italy, a certain invoice of coffee, sugar, cocoa, ginger, tobacco, and staves, owned by them in proportion of one-third each. Tbe vessel sailed from Philadelphia, and in due time arrived at said port of Leghorn, where said invoice was landed and deposited in tbe warehouse of tbe said Earl, Hodgson & Drake.
    YI. Tbomas and Jobn Ketland, together with tbe said Henry Phillips and one Simon Walker, citizens of tbe United States, about tbe 24th of July, 1795, shipped from Philadelphia, upon tbeSwedisb snow G-luckstern, Jakim Frederick Pagels, master, for Leghorn, in Italy, a certain invoice of coffee and other merchandise, owned by them in proportion of one-third each; that said vessel sailed from Philadelphia and in due time arrived at the said port of Leghorn, where said cargo was landed and deposited in the warehouse of the said Earl, Hodgson & Drake.
    YII. Thomas and John Ketland, together with the said Henry Phillips and one Simon Walker, citizens of the United States, on or about the ,16th day of July, 1795, shipped from New York, upon the snow Fin Marken, whereof Jorgen Jorg-enson was master, for Leghorn, in Italy, a certain invoice of muslin, jumento, coffee, and cocoa, owned by them in the proportion of one-third each; the vessel sailed from New York and in due time arrived at Leghorn, where said invoice was landed and deposited in the warehouse of the said Earl, Hodg-son & Drake.
    YIII. The value of the property belonging to Henry Phillips, and which was seized and sequestered as aforesaid, was as follows:
    Per Danish brig Young Frederick..c. $4, 099.11
    Per Eaguson ship Columba Fortunata, and Swedish snow G-luckstern, and the snow Fin Marken. 17,248.99
    Total loss. 21,848.10
    
      Tbe loss to tbe firm of Thomas and John Ketland, as aforesaid, was as follows:
    Per Eaguson ship Columba Fortunata, and Swedish snow Gluckstern, and the snow Fin Marten.. $17,248.99
    IX. On or about tbe 27tb day of June, 1796, while tbe aforesaid goods and merchandise, belonging to John Field & Son, and Henry Phillips, and Tbomas and John Ketland, were, in whole, or in part, in tbe warehouses of Earle, Hodgson & Drake, at Leghorn, the French national troops entered and captured the city, and the French commissioners caused the goods and merchandise to be forcibly seized, sequestered, or confiscated for the use of the French Eepublic, which thereby became a total loss to the said owners.
    X. The sole ground upon which these goods and merchandise were seized, sequestered, and confiscated by the French was because they were deposited in the warehouses of Messrs. Earle, Hodgson & Drake, English merchants; that said merchandise was not contraband of war.
    XI. No assignment or transfer of said claims has ever been made, or any indemnity or compensation received on account of said loss.
    XII. This claim was not embraced in the convention of April 30,1803, between the United States and France; it was not allowed and paid, in whole or in part, under the treaty with Spain of February 22,1819; nor was it allowed, in whole or in part, under the treaty, with France of July 4, 1831.
    XIII. Austin J. Montgomery is the duly appointed administrator de bonis non of the estate of Henry Phillips, deceased, and George Meade is the duly appointed administrator de bonis non of the estate of Thomas Ketland, the surviving partner of the firm of Thomas and John Ketland, and in their representative capacities are the present owners of the claims of their respective intestates, as above set forth.
    
      Mr. William H. Harle for the claimant.
    Whether the seizures had been made on the territory of an ■ enemy or on the high seas, the fact remains that the goods and merchandise were the property of the citizens of a neutral power, and, not being countraband of war, they could not be condemned. They were protected both by the general princi-pies of international law and by tbe express terms of the treaty of amity and commerce between the Government of France and the United States of 1778. Thns it is said:
    The two distinct propositions — (1) That enemy’s goods found on board a neutral vessel may lawfully be seized as prizes of war; (2) That the goods of a neutral found on board an enemy’s vessel are to be restored — have also been explicitly incorporated into the jurisprudence of the United States, and declared by the Supreme Court to be founded on the law of nations. The rule, as it was observed by the court, rested on the simple and intelligent principle that war gave a full right to capture the goods of an enemy, but gave no right to capture the goods of a friend. The neutral flag constituted no protection to enemies’ property, and the belligerent flag communicated no hostile character to neutral property,” etc. (3 Phil-limore, Int. Law, 327, citing, The Wereide, 9 Cranch, 388, 395, 418; The Cygnet, 2 Dodson’s Adm., 299.)
    So that, irrespective of the treaty, these goods and merchandise should have been free. But the treaty itself provides: u It shall be lawful for all * * * the subjects of the Most Christian King, and the citizens * * * of the United States to sail with their ships with all manner of liberty and security * * * from any port to the places of those who now are or hereafter shall be at enmity with the Most Christian King or the United States.” * * * (Art. 23.)
    
      11 This liberty of navigation and commerce shall extend to all kinds of merchandises, excepting only those which are distinguished by the name of contraband.” * * * (Art. 24.)
    It seems superfluous to argue further the proposition that the original seizure was a wanton violation of the property rights of American citizens; and as such gave them under the law of nations a just claim against the French Government, which would be equally enforceable under the specific terms of the treaty.
    The United States Government has not hitherto made any distinction in its treatment of claims for the injuries done its citizens on land and on sea. On the contrary, in the often- ■ quoted letter of Thomas Jefferson, the Secretary of State, to Messrs. Duke & Co., during the stormy period of the French revolution (Aug. 31, 1793), the two classes of injuries are treated as one and the same. Thus he says:
    
      “ I have it in charge from the President to assure the merchants of the United States concerned in foreign commerce or navigation that due attention will be paid to any injuries they may suffer on the high seas or in foreign countries contrary to the law of nations or to existing treaties, and that on the forwarding hither of well-authenticated evidence of the same proper proceedings will be adopted for their relief.” (2 Wharton’s Dig., sec. 228.)
    And this has been the policy of the State Department continuously. Thus Mr. Frehnghuysen, Secretary of State, to Mr. Logan, under date of June 7,1883, writes:
    “ One belligerent government is to beheld liable for a wanton destruction of neutral property in an invasion of the territory of the other belligerents.” (2 Wharton’s Dig., sec. 228.)
    And still stronger must be the argument in cases where, like the present, the property of a neutral has been confiscated in the territory of another neutral. It is submitted, therefore, that a just and valid claim under the law of nations and under the special treaty existed against France in favor of Henry Phillips and all others in eonsimili easu when the treaty of September 30,1800, was concluded.
    It is already res adjudicata that all claims, of every nature whatsoever, that were embraced in the second article of that treaty were mutually surrendered by the two governments. (Gray Adm. v. United States, 21 G. Ols. R., 345.)
    And this claim must have been included among them; for no distinction is made at any place in the instruction to our envoys nor in the language of the second article between the different kinds of claims.
    “ The Americans were instructed to inform the French ministers at the opening as an indispensable condition of the treaty, a stipulation to make to our citizens full compensation for all losses and damage which they shall have sustained by reason of irregular or illegal captures or condemnations of their vessels and other property, under color of authority or commissions from the French Republic or its agents.” (Ibid., p. 388.)
    At the close of his instructions the Secretary sets out certain points to be considered as ultimata, of which the following only is important:
    
      u 1. That there shall be established a board to determine the claims of our citizens which France should bind herself to pay.” (Ibid., p.365.)
    
      And all through the negotiations, as appears from their history in the opinion of this court in the cases of Gray and Gushing against .the United States Government, no distinction of claims was made.
    “In the entire negotiation * * * French claims based upon treaty obligations, past and future, were set up against American claims for illegal seizures, condemnations, and confiscations.” (Cushing’s Adm. v. TJ. S., 22 0. Ols. It., 35.)
    “What the respective pretensions (renounced under Napoleon’s retrenchment of the second article of the treaty of 1800) were does not admit of a shadow of doubt. On the one hand, the alleged continuing existence of the treaties, incidentally involving national claims for past acts on our part and more particularly a right to future privileges; on the other, indemnity to our citizens for spoliations.” (Ibid., 387.)
    “ Our claims were good by the law of nations, and we had no need to turn back to the treaty for a foundation on which to rest our arguments.” (Ibid., 387.)
    From all this it must be evident that no claim of any American citizen which arose prior to the treaty of 1801, whether valid or not against his own government, could for a moment be entertained as existing against France after the ratification of the treaty of July 31 of that year.
    The claims for the Leghorn spoliations were canceled with all the others; and the United States thenceforth occupied the same relations towards the owners of these claims as to the others whose property rights had been taken by it for public uses.
    This claim is covered by the terms of the jurisdictional act of 1885. The language of this act is as follows:
    “ Be it enacted, etc., That such citizens of the United States, or their legal representatives, as had valid claims to indemnity upon the French Government arising out of illegal captures, detentions, seizures, condemnations, and confiscation prior ;o the ratification of the convention between the United States and the French Republic concluded on the thirtieth day of September, 1800, the ratifications of which were exchanged on the thirty-first day of July following, may apply by petition to the Oourt of Claims, within two years from the passage of this act, as hereinafter provided,” etc.
    Assuming for the purposes of argument that the evidence in this case is such as to show that it was a valid claim against the French Government prior to the ratification of the convention, it must of course be shown to come under one at least of tbe categories mentioned; tbat is, it must bave arisen either from “illegal captures,” “detentions,” “seizures,” “ condemnations,” or “ confiscations.” Some of these words have both a technical and a popular meaning, and the rule in such cases is:
    “Where a word having a technical as well as a popular meaning is used in the constitution or a statute, the courts will accord to it its popular signification, unless the very nature of the subject indicates or the context suggests tbat it is used in a technical sense.” (Sutherlandon Stat. Const., sec. 250, citing Weill v. Kenfield, 54 Oal., Ill; People v. Tighe, 5 Hun., 25; Opinion of Justices, 7 Mass., 543; Malian v. May, 13 M. & W., 511, 517.)
    It becomes necessary, then, to define both the technical and the popular meaning of the words used, and from the definitions themselves it will appear that in at least two of them the popular and the technical meaning coincide, and under either of them the claim here urged will be embraced.
    “Capture” is defined by Webster: 1. In the general sense, the act of taking or seizing; as the capture of an enemy, of a ship, or of booty by force, surprise, or strategem. 2. The thing taken, a prize; prey taken by force, surprise, or strategem. 3. Seizure, arrest; as the capture of a criminal or debtor.
    “ Capture,” the taking of property by one belligerent from another. Bouvier, Law Diet., title “Capture.”
    It appears, then, that both in the popular and in the technical sense the word “capture” may be applied to the taking of property either on land or at sea; and it is so used by Dana in . an explanatory note to Wheaton’s International Law, where he says:
    “The matter may be summed up thus: Merchandise, whether embarked upon the sea or found on land, in which the hostile power has some interest for purposes of war, is prima facie, a subject of capture. Yessels and cargoes are usually of. that character. Of the infinite varieties of property on shore some are of this character and some not. There are very serious objections of a moral and economical nature to subjecting all property on land to military seizure. These objections have been thought sufficient to reverse the prima facie right of capture. To merchandise at sea these objections apply with so little force, that the prima facie right of capture remains.” (Note to sec. 306.)
    “Detention,” the act of detaining or keeping back, a withholding. (Webster’s Dictionary.)
    
      “ Detention,” tbe act of detaining and preventing tbe removal of a person or property. (Bouvier’s Law Diet., title “Detention.”
    “ Seizure,” tbe act of seizing or tbe state of being seized. (Seize, to fall or rusb upon suddenly and lay bold on; to gripe or grasp suddenly. 2. To take possession of by force, with, or without right, etc.) (Webster’s Dictionary.)
    “ Seizure,” in practice, tbe act of taking possession of the property of a person condemned by tbe judgment of a competent tribunal, etc. Tbe taking possession of goods for tbe violation of a public law; as tbe taking possession of a ship for attempting an illicit trade. (Bouvier’s Law Diet., title “ Seizure.”)
    “ Condemnation,” the act of condemning; the judicial act of declaring guilty and dooming to punishment. (Condemn, to pronounce to be wrong, to utter a sentence of disapprobation against; to censure, to blame. 2. To pronounce a. judicial sentence against, etc.) (Webster’s Dictionary.)
    “Condemnation,” tbe sentence of a competent tribunal which declares a ship unfit for service. Tbe judgment, sentence, or decree by which property seized and subject to forfeiture for an infraction of revenue, navigation, or other law is condemned or forfeited to tbe government. Tbe sentence of judgment of a court of competent jurisdiction that a ship or vessel taken as a prize on tbe high seas was liable to capture, and was properly and legally captured and held as a prize. (Bouvier’s Law Diet.)
    “ Confiscation,” (Confiscate, to appropriate as a penalty to public use. (Webster’s Dictionary.)
    “Confiscate,” to appropriate to the use of tbe state. Especially used of tbe goods and property of alien enemies found in a state in time of war. (1 Kent, 52 et seq.; Bouvier’s Law Diet.)
    From these definitions it would certainly seem that tbe claim under consideration and all claims of like nature may be, without any straining of language, included among those covered either by tbe word “captures,” seizures,” or “confiscations,” leaving tbe words “detentions” and “condemnations ” as being more probably intended to apply to spolia-tions of a strictly maritime nature. If the language of the act were in anywise obscure, and it became necessary under tbe rules of statutory construction to fall back upon tbe title to resolve such doubts by an extension of tbe purview, or to restrain it, or to correct an obvious error, it is submitted that tbe very expression used therein “of claims of American citizens for spoliations ” would carry with it a reference to spolia-tions of all kinds. “Tbe rehearsal or preamble of thestatnte,” says Lord Coke, “is a good means to find out tbe meaning’ of tbe subject, and, as it were, a key to open tbe understanding thereof.” (Co.-Litt., 79, per Thayer, J.; Ins. Go. v. Stokes, 9 Phila., 80.)
    But there does not appear in the statute under consideration to be either doubt or difficulty or obscurity, and the principle that “the language of a statute is a most natural exposition, and where its language is susceptible of a sensible interpretation it is not to be controlled by any extraneous considerations,” would seem to apply. (Alexander v. Worth-ington, 5 Maryland, 485.)
    “The legislature must be understood to mean what it has plainly expressed, so that the act read by itself or in connection with other statutes pertaining to the same subject is clear, certain, and unambiguous. The courts have only the simple and obvious duty to enforce the law according to its terms.” (Sutherland’s Stat. Const., sec. 237.)
    The court would be astute to construe this statute, as it is a remedial one, in the most liberal manner possible if obscurity appeared in any of its terms. (Ibid., sec. 408.) But it seems hard to imagine what argument can be advanced that will wrest from the plain and unambiguous language used a meaning that would destroy its efficacy in any portion of the cases to which it was meant to apply. Considering the infirmity of human language, it is difficult to imagine how words could be used that would more clearly convey the intention of Congress to refer to this court every species of claims that existed against the French Republic prior to the ratification of the treaty of 1801.
    
      Mr. Charles W. Bussell for the defendants.
   Nott, J.,

delivered the opinion of the court:

These cases, which have been brought under the French spoliation act of 1885, are very extraordinary, being for the seizure of American property on neutral territory by a belligerent not at war with the "United States. Their history we take from the argument of the claimant’s counsel.

“ In 1796 the city of Leghorn was a part of the Grand Duchy of Tuscany. War was being waged on Italian soil between tlie armies of France and Austria and her Italian allies, but Tuscany was neutral. A state of war existed between England and France. The immediate circumstances attendant upon the seizure of Leghorn are stated by a well-known historian as follows:

Having arranged this important treaty (with the Pope), Napoleon without delay crossed the Apennines, and found the division of Vaubois at Pistoia. From that point he detached Murat, who suddenly descended upon Leghorn, and seized the effects of a large i>ortion of the English merchants, which were sold in open violation of all the usages of war, which hitherto had respected private property on land, and from their sale he realized twelve millions of francs for the use of the army. What rendered this outrage more flagrant was that it was committed in the territories of a neutral power, the Grand Duke of Tuscany, and from whom he himself at the time was getting the most splendid reception at Florence.” (3 Allison’s History of Europe, p. 31.) 1
“ ‘If our administrative conduct,” said Napoleon to the Directory, “was detestable at Leghorn, our political conduct towards Tuscany was no better.” (Secret Correspondence of Napoleon, 11th July, 1796. Ibid., note p. 32.
“ The firm of Earle, Hodgson & Drake, in whose warehouse the goods and merchandise of Henry Phillips and other American citizens were stored, was an English house, and the seizure was made under the preteuse that the goods were English property. The French proclamation contained the following extraordinary language:
The intention of the general in chief is that all the enemy’s property should be delivered to the Eepublie as prizes made at sea.’

To this should be added that a long correspondence was carried on between the American consul and the French commissioners, in which the former claimed that his own warehouse should be considered as a ship under the American flag exempt from search and seizure. Great reliance apparently has been placed on this position of the consul; but as the goods of these American claimants were not in his warehouse his demand for exemption from search does not affect or benefit them. Their goods at the time were in the warehouses of Earle, Hodgson & Drake, an English house, and concerning their goods the consul conceded: “I confess that it is necessary to exhibit proofs to claim this property. The note sworn before me by the attorney of Messrs. Earle & Co., of which I gave you a copy, wants nothing to establish a plain proof but to be compared with the books of the merchants. These books being in yonr bands, yon can not accuse me of making ill-founded demands.”

Tbe French commissioners did not concede tbat tbe proofs were sufficient, and replied to tbe consul: “ You may be sure tbat tbe agents of tbe Eepublic will be as exact to give back to tbe neutrals all tbat will be proved belonging to them as not to let escape tbe property we are intrusted witb.”

Tbe correspondence involved other matters and tbe rights of other parties, and it does not appear tbat there was an im-equivocable refusal to give up tbe goods at any time. But it is certain tbat they were not given up, tbat they were sold at auction witb tbe English property in tbe same warehouse, and tbat tbe owners ultimately preferred claims for payment under tbe treaty of 1803. Those claims were rejected on tbe following ground:

“In pursuance of tbe rule of proceeding adopted on tbe 15 th of May last (vide, p. 164 of this register), tbe board having fully examined tbe documents and vouchers regularly certilied to them in the five cases above specified (not found upon tbe “conjectural note”), and which are to be considered as part of this record, and having duly attended to all tbe proofs produced in relation to them, are of opinion tbat such claims respectively are excluded from tbe benefit of tbe convention of • the 30th of April, 1803, between tbe United States and France, and ought not to be certified for liquidation to the French bureau.”

It can not be denied tbat this invasion of neutral territory and seizure of neutral property was a lawless outrage, and it must be conceded tbat tbe conduct of tbe French agents was specious, evasive, false, and rapacious. But tbe question in these cases is whether these seizures are of those classes for which tbe United States have become responsible.

When an American merchant places bis goods on an American ship they do not lose their nationality because she leaves port. An American vessel on tbe high seas is in contemplation of law American territory. Tbe obligation of the Government to protect tbe property of tbe citizen, varied but unimpaired, remains. Every government owes protection from foreign aggression to tbe person and property of every citizen. So long as be and bis goods remain under tbe American flag it is immaterial whether it waves on land or sea.

But when au American merchant carries Ms sMp into a foreign port and unloads Ms goods and places them under tlie protection of a foreign power, the obligation of Ms own Government is to see that be receives from the other the full measure of protection which it accords to its own citizens. If he should subsequently meet with losses or misfortunes, and the foreign power in which he has confided should be unable to afford protection or obtain redress, those disappointments will be chances which he was bound to consider in limine, risks incident to the transaction.

It is true that the political arm of the American Government might have taken hold of this matter, but it might have done so though no American citizen had lost a dollar’s worth of property. Great national considerations can not depend upon the rights or wrongs of individuals. All the neutral nations of the world might well have made common cause with the Duke of Tuscany in demanding reparation or declaring war. It is also true that when a weak power like Tuscany is utterly unable to afford protection or demand redress against a great power like France, a strong obligation will rest on the American Government to overlook the intermediate nation and demand redress from the wrongdoer; but ordinarily the obligation to afford protection or demand redress rests on the other government, the government which was immediately charged with the duty of protection; and there is a great difference in the nature and measure of the obligation when the wrongful act was committed on American territory or under the American flag, and when it was committed upon the territory and under the flag of another nation.

Six years after these Leghorn seizures the Governments of France and America were still negotiating concerning their demands against each other. On the part of France there was a great claim strictly national, i. e., a demand for redress for acts and omissions of the American Government prejudicial to France as a nation; on the part of the United States there were many private claims, i. e., a demand for redress for the wrongs and injuries done to the commerce of their citizens. In this controversy France acknowledged an obligation to make indemnity, the amount being unascertained, while the United States denied obligation growing out of their national policy, but nevertheless offered to pay 12,000,000 francs to be relieved from tbe demand. After years of irritating and unavailing attempts to settle tbeir differences Napoleon’s insight perceived that the American Government was weary of its unavailing efforts to procure a settlement, and with characteristic shrewdness and readiness he proposed to get rid of the liability of France by setting off the one demand against the other aad entering into a mutual renunciation of both.

But in the year 1800 there were many other American claims which were not so relinquished, and which consequently did not enter into and become a part of the consideration which the United States gave to France in exchange for the release which France gave to the United States. The claims which constituted that consideration, and which consequently form the basis of the Government’s liability to its own citizens, as this court has held, were only the claims embraced in the second article of the treaty of 1800. (Gray’s Case, 21 C. Cls. R., 340; Cushing’s Case, 22 id., 1.)

These claims are alluded to, but not defined, in the second article. They are spoken of in very general terms as the indemnities “mutually due or claimed, on the part of France under the treaty of alliance of 1778, and on the part of the United States under the treaty of amity and commerce of the same date. But the fifth article provides for debts “ contracted by one of the two nations with individuals of the other,” which it declares “shall be paid” “in the same manner as if there had been no misunderstanding between the two States,” with the proviso added: “But this clause shall not extend to indemnities claimed on account of captures or confiscation.” In other words, there were then before the high contracting parties two classes of claims, the one of which was designated by the general term of “indemnities,” and the other by the general term of “debts;” the former were mutually relinquished, that is to say, exchanged, and the latter were declared to be still binding and obligatory.

After a brief interval those “debts,” recognized as obligatory by the fifth article, were again the subject of negotiation between the two governments, and by the treaty of 1803, article IV, a fund was provided for the payment of them, with, however, qualifications that they should be debts “due to citizens of the United States who have been and are yet creditors of France;” that they should be debts “the payment of which bas been heretofore claimed of the actual Government of France;” that they should be debts “for which the creditors have a right to the protection of the United States.” The claimants in the present cases, as previously stated, went before the board of commissioners under the treaty of 1803 in the character of creditors, and presented their demands as debts, and the board rejected them, upon the ground that they were “excluded from the benefit of the convention of the 30th April, 1803, and ought not to be certified for liquidation to the French bureau.” The reasons for this exclusion are not given. • It may have been because, in the opinion of the board, they came under the head of “indemnities” instead of under the head of ‘ ‘ debts; ” it may have been because they were regarded as debts for which the creditors had not a right to the protection of the United States.

Let it be assumed, however, that they were rejected by the board upon the ground that they were not debts, within the intent of the fifth article of the treaty of 1800, which had been “ contracted by one of the two nations with individuals of the other” — by France with citizens of the United States. The question then recurs whether they were claims for “indemnity” within the intent of the second article, which the American Government was bound to prosecute, which it had prosecuted, and by the extinguishment of which it then acquired an extinguishment of its own liability to France.

The claimants’ cases are exceedingly hard cases, but they are also, it is believed, distinctive and peculiar. No other instances have been brought to the attention of the court in all of our trouble with the French Republic of land captures ’ on neutral territory by military force. The American Government was not to blame in the matter nor in anyway chargeable with the offense. Its Army and Navy were not bound to defend Tuscany, nor to protect the claimants’ property in a foreign country; and no liability can be cast upon it unless it took these claims, expressly or by reasonable implication, and released them for its own benefit, leaving the claimants without redress against either Tuscany or France. It therefore seems but reasonable that if the claimants would establish that liability they must show either that their claims come within the general demands for indemnity which the Government constantly pressed in the negotiations that' ended in tbe second article of tbe treaty of 1800, or tbat these Leghorn seizures were expressly brought to the attention of the French Government with a demand for indemnity on behalf of the individual owners. As to the second alternative, it may here be said that no demand or complaint was made by the United States which the evidence discloses, and that in all of the voluminous instructions and correspondence relating to French spoliations which have been before the court in other cases we have not observed a single reference to the Leghorn seizures. The question then is, whether they were, if not expressly, by reasonable implication within the demands for indemnity which the United States made upon France.

The subjects of diplomatic complaint between 1793 and 1800 were the French statutory decrees impairing the rights of neutral commerce on the high seas, the capture of American merchantmen by French cruisers, and the unjust and lawless condemnations of American vessels and imprisonment of American seamen by French tribunals. The decree of May 15,1791, inhibited Americans from “introducing, selling, and arming their vessels” in French ports and from “enjoying all the advantages allowed to those built in the shipyards of the Republic;” the decree May 9, 1793, ordered the arrest of neutral vessels laden with provisions bound for an enemy’s port; the decree of February 1,1797, subjected neutral vessels to capture and confiscation if merely cleared for certain ports in the West India Islands; the decree of March 2,1797, made the absence of a crew list, the “ role Wequipage,” a ground of condemnation; the decree of January 18,1798, made the carrying of British merchandise a ground of condemnation of a neutral vessel; all of these decrees, in a word, related to navigation and neutral commerce under its own flag and on the sea.

The American legislation during the same period related to the same subjects, referring in terms to the rights of neutral commerce on the sea, coupled with the “national rights and sovereignty” of the United States. The Act 28th May, 1798 (1 Stat. L., p. 561), recites that “armed vessels sailing under authority or pretense of authority from the Republic of France have committed depredations on the commerce of the United States, and have recently captured the vessels and property of citizens thereof.” The Act 13th June, 1798 (ib., p. 565), forbids the vessels of the United States to enter French ports and tbe vessels of France to enter American ports nntil tbe Government of France and all persons acting nnder its authority “ shall be found to refrain from tbe aggressions, depredations, and hostilities which have been and are by them encouraged and maintained against the vessels and other property of the citizens of the United States and against their national rights and sovereignty.” The Act 7th July, 1798 (ib., p. 578), declares that “there is yet pursued against the United States a system of predatory violence,infracting the said treaties, and hostile to the rights of a free and independent nation.” The Act 9th July, 1798 (ib., p. 578), authorizes the capture of armed French vessels and their condemnation and forfeiture, and provides for the restoration of American property found on captured ships. All of these statutes are silent as to French aggressions on foreign soil, as to land captures on neutral territory, and as to the infraction of the national rights and sovereignty of other neutral powers.

The diplomatic correspondence by which we apprised France of our demands for indemnity follows the same lines, and does not, that we have observed, go beyond them. The brief but comprehensive, summary given by our brother Davis in the leading case of Gray (21 C. Cls. R., 361) sets forth substantially the whole of the American demands as they were presented to France.

“We complained of spoliation and maltreatment of our vessels at sea, losses by the embargo at Bordeaux, nonpayment of drafts by the colonial administration, seizure or cargoes of vessels, nonperformance of contracts by Government agents, condemnation of vessels and their cargoes in violation of the treaties of 1778, and captures under the decree of 1793.”

The court is not unmindful of the assurance (likewise pressed by counsel upon our attention) which Mr. Jefferson gave to the merchants of the United States wherein it is said he made no distinction between injuries done to American citizens on land and sea:

“I have it in charge from the President to assure the merchants of the United States concerned in foreign commerce or navigation that due attention will be paid to any injuries they may suffer on the high seas or in foreign countries contrary to the law of nations or to existing treaties, and that on the forwarding hither of well-authenticated evidence of the same, proper proceedings will be adopted for their relief.” (2 Wharton’s Dig., sec. 228.)

But all that this letter really promises is “clue attention” and “proper proceedings,” and concerning it it must be beld, first, that “proper proceedings” upon claims of this character would be the pressing of a remonstrance upon either Tuscany or France; and, seeond, that Mr. Jefferson’s letter was written long before these claims existed. It may be considered a pledge or promise to American citizens, yet it can not be treated as if it were a specific recognition of these claims on the part of the Government, and the avowal of an intent to press them against the French Republic and demand indemnity on behalf of these citizens.

As the Leghorn seizures have been likened to a seizure of neutral property on belligerent territory, and it has been claimed that the right to indemnity is indeed stronger in cases like the present, where “ the property of a neutral has been confiscated in the territory of another neutral,” the court will declare briefly the principles which it deems applicable to seizures on land.

When a nation is at peace, it owes protection of person and property to all who are allowed to come within its territory, whether they are citizens or aliens. When war comes and the neutral becomes a belligerent, the obligation to protect, as against the acts of the other belligerent, ceases equally in the case of either a citizen or an alien; both must bear the hazards of war. Conversely, however, the right of the alien’s own government to speak for him in a measure revives, and it may demand redress for the seizure and user or for the wanton destruction of his property by either belligerent.

Applied to the case before us, these principles mean this: Tuscany being neutral territory, the United States owed only a qualified protection to the alien, though their citizen, who had voluntarily carried his goods there, and as against France could not be called upon to interfere, unless they deemed the circumstances such as justified them in going behind Tuscany and calling the real wrongdoer to account. If Tuscany had then been belligerent territory, she would not have owed protection to this property as against France, and the duty which the United States owed to their citizens would have been to interfere and demand indemnity for the user or wanton destruction of American property by France, though upon enemy’s territory.

It appears iu tbe correspondence of tbe American consul at Leg'llorn, before cited, tbat when tbe French army descended npon tbat city a proclamation was issued likening tbe seizure of English property to prizes made at sea. Tbe proclamation is not before us, but we will assume tbat tbe brief quotation made by tbe consul is correct: “The intention of tbe general in chief is tbat all tbe enemy’s property should be delivered to tbe Republic as prizes made at sea.” Tbe consul himself adroitly sought to take advantage of tbat expression by claiming tbat bis own warehouse should be regarded as a ship under tbe American flag, exempt from search by tbe terms of tbe treaty of amity and commerce 1778, and be accordingly addressed tbe following memorial to tbe French authorities:

The consul of the United States of America in Tuscany to the cirv. salicite commissary of the Trench Government for the army of Italy, greeting :
“ Tbe consul-general of tbe French Eepublie having declared by bis proclamation tbat tbe goods belonging to tbe enemies of tbe Republic were to be delivered to him as prizes made at sea, and tbe twenty-third article of tbe treaty of friendship and trade between the French Republic and tbe United States positively says tbat the respective ships will secure tbe liberty of merchandises; tbat all tbe goods found on board of any of tbe ships belonging to tbe subjects of one of those governments will be declared free, though tbe cargoes on board should belong to tbe enemies of one of them, the undersigned thinks that be is authorized to ask tbat bis magazines should be considered as ships carrying tbe American flag. He hopes that his demand will be received with goodness, tbat protection will be granted to him in his quality of consul for a Republic which has been a friend of France since the beginning of her revolution.”

On the argument this idea has been carried further, and tbe claimants have contended tbat tbe warehouse of tbe English merchants Earle, Hodgson & Drake should be regarded as an English ship upon tbe high seas, and tbe neutral property on board of her as exempt from seizure and condemnation.

Tbe proclamation of tbe French general and the subsequent correspondence of tbe French officials indicate tbat tbe intention was: First, tbat English warehouses should be seized; second, tbat English goods in neutral warehouses should be seized; third, tbat neutral property wherever situated should be restored or paid for. Tbe last intent, unhappily, seems never to have been carried into effect.

But this rule for conducting these seizures on land could not change the character of the transaction, nor affect the relations of the three powers, nor transmute the neutral territory into the high seas, nor make it subject to . maritime law. Neither does the proclamation assume to do so. It does not speak of neutral property, nor assure neutrals of maritime rights; it begins and ends with English property, which it declares shall ic be delivered up as prizes made at sea; ” i. e., as we understand it, the inhabitants of Leghorn should deliver up English property in their possession just as a neutral vessel on the high seas could be required to stop and surrender her English cargo. The act of seizure continued to be an invasion of neutral territory, the Tuscan Government continued to owe the owners protection, and the United States continued to be irresponsible for the wrong.

The terms of the jurisdictional act have been pressed upon the court as indicative of a legislative intent that the court should assume jurisdiction of these land captures, and do justice to these suffering American claimants; and there are words and phrases in the statute broad enough to sustain such a jurisdiction. Here, however, the question is not one of jurisdiction, but of liability. There were many classes of claimants before Congress seeking redress for French spoliations. As to some of them the legislative discretion refused judicial redress by expressly withholding jurisdiction of claims which were embraced in the treaty 1803, or were allowed and paid under the treaty with Spain 1819, or were allowed under the treaty with France 1831. As to others, arising under the second article of the treaty 1800, Congress have conceded that the claimants may come into this court and have the question of liability determined, and have conceded nothing more.

The conclusion of the court is that the claimants are not entitled to indemnity against the United States; and the order of the court is that they be so reported to Congress, together with this opinion.  