The American claims against France were of a totally different character. They were presented, it is true, by the Nation, as all individual claims against a foreign Government must be presented by the nation and not by the individual himself. But ultimately they were claims of the individual owners of vessels and cargoes captured and condemned with or without legal process by the French. They were based upon the long series of spoliations committed by the public cruisers and private armed vessels under commissions from the French Government against our merchantmen, vessels peaceably pursuing their course of lawful trade between 1793 and 1800. Thus, the rights of American shipowners and merchants were traded away in return for a great national advantage.

They thereafter had no redress against France and naturally looked to their own Government for indemnity for their losses, from which indemnity France had been forever released. From that time for a period of 85 years those claims were actively pressed, first by the original claimants and afterwards by their descendants. They were championed by some of the greatest names in American public life.

Chief Justice Marshall especially expressed himself as impressed with their equity and justice. He said that—

Having been connected with the events of the period and conversant with the circumstances under which the claims arose, he was, from his own knowledge, satisfied that there was the strongest obligation on the Government to compensate the sufferers by the French spoliations.1

In 1826, Henry Clay, then Secretary of State, transmitted to the Senate, in pursuance of a resolution, all the diplomatic correspondence which had given rise to these claims, and it was printed as Senate Document No. 102, Nineteenth Congress, first session.

It is significant that from that time until 1885, when the act was passed referring these claims to the Court of Claims, no adverse report was ever made on these claims in either House of Congress.

REFERENCE TO COURT OF CLAIMS.

The act which thus became a law in 1885 was the third to pass both Houses of Congress. The first was vetoed by President Polk on account of the condition of the Treasury, which he deemed "not justifying the expenditure of the money at that time," and the second by President Pierce on grounds going to the origin of the claims. The third, which was signed by President Arthur, gave the Court of Claims power and jurisdiction to examine into the validity of the claims, their present ownership, and all considerations affecting their validity, merits, and the amounts, and to report to Congress its conclusions of fact and law with regard to each claim.2

The Court of Claims is a tribunal originally established by act of February 24, 1855, "for the investigation of claims against the United States." Story, in his work on the Constitution, section 1678, intimates a strong opinion that it is the duty of Congress to establish a tribunal in which the Government may be sued. This duty was neglected until long after Story's death. Even after the court was established it was prohibited from exercising jurisdiction over any

1 Clayton's speech, 1846.

223 Stat. L., 283.

810 Stat. L., 612.

claims "

growing out of or dependent on any treaty stipulation entered into with foreign nations." 1

Long after the establishment of the court Chief Justice Chase, for the Supreme Court, said:

It was urged in argument that the right to sue the Government in the Court of Claims is a matter of favor; but this seems not entirely accurate. It is as much the duty of the Government as of individuals to fulfill its obligations.2

And still later:

By establishing this court the United States created a tribunal to determine the right to receive moneys due by the Government."

The general provisions of law relating to the Court of Claims are now embodied in chapter 7 of the Judicial Code of March 3, 1911.

The general jurisdiction of the court is mainly exercised in cases arising out of contracts with the Government and in suits involving the question of pay or emoluments of officers.

Under the ordinary procedure of that court it enters final judgments against the United States, from which appeals lie to the Supreme Court of the United States. But "the judgment of the Court of Claims, from which no appeal is taken, is just as conclusive under existing laws as the judgment of the Supreme Court, until it is set aside on a motion for new trial." 4

In these French spoliation claims, however, provision was made by the act of 1885 that the decision of the court should not take the form of a judgment, but that its conclusions of fact and law should be reported to Congress as advisory for future action.

DECISIONS OF COURT OF CLAIMS.

In the first cases which came before the Court of Claims under this act it was maintained on behalf of the claimants that the terms of the act constituted a prejudgment on the part of Congress of the validity of the claims as a class, leaving only to the court the examination of the particular facts and circumstances tending to bring each claim within the class. This view the court refused to adopt and held on the contrary that it was the intention of Congress to submit to the court the original and underlying question involving the validity of all the claims as a class.

It therefore entered into an exhaustive examination of all the facts of diplomatic history with regard to the relations of France and the United States at that day. The opinions in the initial cases were written by Judge John Davis, then fresh from a service of great brilliancy as Assistant Secretary of State, and constitute beyond all doubt the most complete examination which the general subject of these claims has ever received.

The principal defense of the United States was that France and the United States were at war during the time of these captures and that therefore the captures were justifiable as having been made by a belligerent against the private property of another belligerent found on the high seas. The court made an examination of the entire statu

tory history of the period, as well as of the judicial and diplomatic acts of each Government bearing on the question.

The conclusion reached was that while the relations had become very strained and there was even a partial state of hostilities, there had not been a state of war between France and the United States at any time. The legislation of the day, as has been shown by the brief summary given of it earlier in this article, was marked by studious restraint, and nowhere authorized anything going beyond defensive measures against the arbitrary and unlawful depredations of French cruisers and privateers upon American commerce.

The French tribunals, on the other hand, with all their desire to find every pretext for the condemnation of American vessels and cargoes, had never claimed that they had justification for so doing in the existence of a state of war between the two countries. And when the claims were presented and actively urged by our negotiators upon the French Government as proper subjects for treaty settlement, their validity was never questioned, but they were met by the assertion of equally valid national claims existing on the part of France against the United States.

The position of the two Governments is also clearly stated in Senator Sumner's great report on these claims:

And now, when it is considered that Congress alone, under the Constitution, has the power to declare war; that it never made any declaration of war against France, and that throughout this whole period of trouble-in its whole series of acts-it expressly negatived the fact of war, it is impossible to assert that, according to the understanding of our Government, war actually existed. What Congress did, and what it failed to do, testify alike.

But the declarations of the Executive are as explicit as the declarations of Congress. In the instructions to our plenipotentiaries at Paris, under date of October 22, 1799, the Secretary of State, after reciting the spoliations of France, says:

"This conduct of the French Republic would well have justified an immediate declaration of war on the part of the United States; but desirous of maintaining peace, and still willing to leave open the door of reconciliation with France, the United States contented themselves with preparations for defense and measures calculated to protect their commerce." (French Spoliations, 1826, p. 561.)

And these plenipotentiaries declared to the French plenipotentiaries, under date of April 16, 1800, that "the act of Congress, far from contemplating a cooperation with the enemies of the Republic, did not even authorize reprisals upon merchantmen, but were restricted solely to giving safety to our own, till a moment should arrive when their sufferings could be heard and redressed." (Ibid., p. 583.) Again, in the instructions to our minister in England, under date of September 20, 1800, the Secretary of State, who was none other than John Marshall, says:

66

The aggressions of one and sometimes of another belligerent power have forced us to contemplate and to prepare for war as a probable event.

p. 452.)"

In the face of such declarations who can say that war existed? 1

And again:

(Ibid.,

Already, at an earlier date, Talleyrand, as minister of foreign relations, had written, under date of August 28, 1798:

66

'France has a double motive, as a nation and as a republic, not to expose to any hazard the present existence of the United States. Therefore it never thought of making war against them; and every contrary supposition is an insult to common sense." (Ibid., p. 649.)

When the convention in its final form was laid before the legislative assembly of France one of the French plenipotentiaries charged with its vindication

1 Compilation of Reports of Committee on Foreign Relations, United States Senate, Vol. I, pp. 305, 306.

announced in a speech November 26, 1801, that "it had terminated the misunderstanding between France and America," which, he said, had become such "that the reconciliation should be hastened if it was desired that it should not become very difficult." A report was also made to the legislative assembly by M. Adet, formerly French minister to the United States, in which it is declared:

"There had not been any declaration of war. Commissions granted by the President to attack the armed vessels of France are not to be regarded as a declaration of war. The will of the President does not suffice to put America in a state of war. It requires a positive declaration of Congress to this effect. None has ever existed." (Code Diplomatique, par Portiez, tom. 1, pp. 39–57.) And these legislative documents, so positive in character, are introduced by the learned editor in words which fitly characterize the international relations to which they refer when he says that "they exhibit the causes which ruffled the harmony of the two States." True enough. The harmony of the two States was ruffled, but war did not exist.1

And many years after the first decisions of the Court of Claims that master of the general subject of governmental liability, Chief Justice Nott, said in regard to the subject of the existence of war:

* * that no war existed which released France from her international responsibilities or which authorized her to destroy American commerce. The question has been exhaustively argued and exhaustively examined, and all the information and learning which it is susceptible of receiving will be found embodied in the opinions in the cases of Gray (21 C. Cls. R., 340); Cushing (22 id., 1); and The John (22 id., 408). In a few words it may be said that the United States never ceased to hold France pecuniarily responsible for the acts of her cruisers and privateers and that France never denied her liability for unjustifiable seizures and condemnations. Moreover, France never interposed the defense of belligerent rights, but, on the contrary, again and again reiterated her willingness to discharge her treaty and international obligations whenever the United States would discharge theirs. A defense which France could not now and did not then set up the United States can not set up. Where France claimed no exemption the United States can claim none for her; where they can claim no exemption for France they can set up none for themselves. The question of liability to be determined is the liability of France.2

There was thus a complete chain of evidence that neither France nor the United States regarded herself as at war with the other during this period and that both nations regarded the claims of American citizens against France for the spoliation of their property as well founded. Thus, the claims having been traded off by the American negotiators of the treaty in return for our release from national claims of the most embarrassing character on the part of France against us, the court held that the case was covered by the general principle of international law, that when a claim of a citizen against a foreign Government is surrendered or relinquished by that Government for its own advantage it is bound to compensate him for the sacrifice thus exacted of him for the national advantage.

Lord Truro's view, expressed in the House of Lords, was cited: That if the subject of a country is spoliated by a foreign Government he is entitled to redress through the means of his own Government. But if from weakness, timidity, or any other cause on the part of his own Government no redress is obtained from the foreign one, then he has a claim against his own country.

It was added:

The same position is sustained by that eminent writer upon the public law, Vattel, who held that while the sovereign may dispose of either the person or

1 Compilation of Reports of Committee on Foreign Relations, United States Senate, Vol. I, p. 306.

2 Ship Concord (35 C. Cls., 432, 443, 444).

3 De Bode v. The Queen (3 Clarke's House of Lords, p. 464).

the property of a subject by treaty with a foreign power, still, "as it is for the public advantage that he thus disposes of them, the State is bound to indemnify the citizens who are sufferers by the transaction." (Book 4, chap. 2.)

Napoleon, from his retirement in St. Helena, testified that by the suppression of the second article of the treaty of 1800 the privileges which France had possessed by the treaty of 1778 were ended, and the "just claims which America might have made for injuries done in time of peace were annulled, adding that this was exactly what he had proposed to himself in fixing these two points as equiponderating each other." (Gourgaud Memoirs, vol. 2, p. 129.) Finally, Senator Livingston, familiar with the whole subject as a contemporary, in his report upon it to the Senate, said:

"The committee think it sufficiently shown that the claim for indemnities was surrendered as an equivalent for the discharge of the United States from its heavy national obligations and for the damages that were due for their preceding nonperformance of them. If so, can there be a doubt, independent of the constitutional provision, that the sufferers are entitled to indemnity? Under that provision, is not this right converted into one that we are under the most solemn obligations to satisfy? To lessen the public expenditure is a great legislative duty; to lessen it at the expense of justice, public faith, and constitutional right would be a crime. Conceiving that all these require that relief should be granted to the petitioners, they beg leave to bring in a bill for that purpose.

991

The same principle is expressed in the fifth amendment to the Constitution," Nor shall private property be taken for public use without just compensation."

These opinions of the Court of Claims were made the subject of a review by Prof. John Westlake in the Revue de Droit International, Brussels, volume 18, page 543. This very competent critic, looking at the question from an impartial distance, treats the decision of the Court of Claims as being so clearly right as hardly to admit of question. He says:

The pamphlet before us contains the advice given by the Court of Claims, and it is hardly necessary to say that this advice is favorable to the claimants." And he concludes:

Let us hope that Congress will conform to the advice which has been given to it, and will thus bring to an end a controversy interesting rather on account of its origin and its extraordinary duration than by reason of any difficulties which it presents.3

The general question of the liability of the United States for these French spoliations has just been reexamined by the Court of Claims, the entire membership of the court having changed since the initial decisions of 1886.

The court in 1911, by Judge Howry, thus recapitulated and reaffirmed its conclusions of 25 years earlier:

Beginning with the reports of Mr. Pickering (who was Secretary of State under the administrations of both President Washington and President Adams) and ending with the approval of the act of 1885 by President Arthur, the discussions related to indemnity for property spoliated and not to diplomatic claims for injuries done to persons sailing the seas. Chief Justice Marshall, while contending that there was the strongest obligation on our Government to compensate, restricted the contention to compensation for those whose vessels and cargoes had been despoiled. (Clayton's speech, 1840.) Mr. Clay rested his contention for payment upon the rate of equity "furnished by our Constitu

1 Gray, administrator, v. United States (21 C. Cls., 340, 391).

2" La brochure dont nous occupons renferme les avis donnés par la cour des griefs, et il est presque inutile de dire que ces avis sont favorables aux plaignants."

3" Espérons que le congrès se ralliera à l'avis qui lui est donné, et terminera ainsi une controverse qui offre de l'intérêt plus à cause de son origine et de sa durée extraordinaire qu'à cause des difficultés qu'elle présente."

S. Doc. 451, 64-1-2