It was contended by the special counsel for the claimant that the grove was of great value, as it added to the beauty of the landscape, and that the estate was injured to the amount of $6,000 by the destruction of the grove. The counsel for the United States contended that the value of the grove, which consisted of three acres of locust trees, represented to have been about 12 inches in diameter and 30 to 40 feet in height, could not have exceeded $400.

An award was made by the Commission in the sum of $1,500.

ISAAC TAYLOR v. THE REPUBLIC OF FRANCE, No. 1.

The claimant alleged in his memorial that on or about the 14th day of October, 1870, at the city and port of New York, in the State of New York, the commercial firm of Charles Luling & Co., shipped for account of the memorialist, on board a North German vessel called the Magdalene, 7,900 barrels of refined petroleum, measuring 374,590 gallons, of the net value of $83,191.55 in gold of the United States. He further alleged that said vessel was bound for Bremen; that on the 15th day of October, 1870, the same was captured by a French cruiser named D'Estaing, and the vessel and cargo, including said quantity of petroleum, were carried into the port of Brest, where such proceedings were had in the prize court and upon appeal to the court of final jurisdiction as led to the condemnation of the property of the memorialist, and sale of the same by a decree of said courts, and the payment of the proceeds into the fund for the support of invalids of the French army.

Upon this statement of facts, the counsel for the French Government demurred to the memorial upon three grounds, namely: First, that there had been an adjudication of the subject-matter; second, that the memorial did not charge that there was any irregularity in the proceedings before the French courts, either in the first instance or on appeal; third, that the memorial failed to show that the Government of the United States had ever taken any action upon the protest addressed by the memorialist to the honorable Secretary of State of the United States, or deemed said protest worthy of being made the subject of diplomatic correspondence between the Government of the United States and the Government of the French Republic.

In the brief filed by the counsel for the French Republic in support of the demurrer, he said:

The convention of January 15, 1881, contains the following provision: "The said Commission

# * *

shall be competent and obliged to decide upon all claims of the aforesaid character, except such as have been already diplomatically, judicially, or otherwise by competent authorities heretofore disposed of by either Government."

The jurisdiction of the prize court and of the council of State of the French Republic as an appellate court, over captures made on the high seas, is admitted by claimant. "The French prize court condemned the property and ordered the same to be sold as aforesaid, and the French appellate court affirmed the same."

The undersigned submits that the jurisdiction of the Council of State being thus admitted by claimant-it being also admitted by him that the said Council of State had appellate jurisdiction-this claim is excluded from the jurisdiction of this honorable Commission.

It was further agreed by the counsel for the French Government that the neglect of the Government of the United States to call the attention of the Government of France to the claim constituted such laches as justified the Commission in refusing to take jurisdiction of the case.

The special counsel for Taylor prepared a brief in which the position was taken that the adjudication of the prize courts in France did not

dispose of the claim, but, on the other hand, that the action of those courts created the claim.

In addition to the brief submitted by the special counsel, the counsel for the United States prepared the following brief, which was submitted to the Secretary of State:

WASHINGTON, December 9, 1881.

There is but one single alternative question raised by the memorial and demurrer in this case, namely: Did the decision of the Council of State of the French Government, affirming the capture of the property of the memorialist, dispose of the claim against the Government of France, or did it create a claim against that Government? That portion of the treaty (Art. I) which describes and specifies the character of elaimants who may prosecute claims before this Commission, and the nature of the claims which may be presented, provides that they must be claims either upon the Government of the United States or claims upon the Government of France, and that claims upon the Government of France can only be presented and prosecuted by corporations, companies, or private individuals, citizens of the United States. It is not denied that the memorialist is a citizen of the United States, and the essential questions are, is the claim against the Government of France, and, if so, when did it arise?

It is settled by a long line of authorities, many of which are cited in the brief prepared by the special counsel for the claimant in this case-and the counsel for the United States is not aware of any authority to the contrary-that in a prize court the claimants who appear as against the captors make no claim whatever against the Government represented by the captors, nor can any such claim exist, inasmuch as the Government represented by the captors does not appropriate the property until the judgment of the prize court is rendered. The proceeding is in rem and upon the allegation by the captors that the thing taken is properly prize of war.

The claim made by the claimant before the prize court is that he is the lawful owner of the property, and that the thing captured is not prize of war. When the decision of the prize court is in favor of the Government and against the claimant, as in this case, and when the claimant has made his appeal to the highest judicial tribunal of the country in which the prize court is established, and has prosecuted that appeal to a final determination, and a decree is made or affirmed that the property so taken is lawful prize of war, the property is then either specifically or by conversion appropriated by the Government; and the claim, if it has been unlawfully so appropriated, is against the Government making the appropriation.

In the case at bar the decree was either made or affirmed by the Council of State of the French Government, to which an appeal was properly made, that council having appellate and final jurisdiction of the case. There can be no question that that body was of the civil authorities of France; that a decree was either made or affirmed by which certain property claimed by this memorialist was taken from the possession of those to whom he had entrusted it, and appropriated by the Government of France to its own use. When that appropriation was made the claim arose. Whether this claim is well founded or not, is a question upon which this Commission is not now called to pass.

At this stage of the proceedings, Mr. Outrey, representing the Republic of France at Washington, addressed a letter to the Secretary of State of the United States, in which he called attention to the case of Isaac Taylor and the position it then occupied before the French and American Claims Commission. In that letter he says:

This case having been decided in France by the prize court, and afterwards, on appeal, by the Conncil of State, the agent of the French Government before the Commission has invoked the stipulations of Article II of the Convention of January 15, 1880, requesting the agent of the United States Government to withdraw it before action in the case is taken by the Commission.

His letter contained an argument in support of the position taken by the counsel for the French Republic. This letter was dated November 18, 1881.

The briefs in the case were submitted by the counsel for the United States to the Secretary of State. Under date of December 17, 1881, the Secretary of State, Hon. James G. Blaine, made a reply to Mr. Outrey, in which he said:

Referring to your note of the 18th ultimo, in relation to the case of Isaac Taylor, a citizen of the United States, which was presented to the American and French Claims

Commission in February last, and to the several conversations which we have had upon the subject, I have the honor to state that, after such consideration as I have been able to give to the question, I have reached the conclusion that that claim, because of the antecedent proceedings by the competent authorities of France, of which it has been the subject, is not properly within the cognizance of the Mixed Commission established under the provisions of the Convention of the 15th of January, 1880, between the two Republics.

In accordance, therefore, with this determination, the agent and counsel on the part of the United States will be instructed to withdraw the claim of Mr. Isaac Taylor from the further consideration of the Commission.

The letter of the Secretary of State proceeded to say that he did not doubt that the French Government, animated by a like disposition, would pursue a similar course with regard to any claims presented for the consideration of the Commission on behalf of citizens of France against the United States which should be found to have already been inquired into and decided either diplomatically, judicially, or otherwise by the competent authorities of the United States.

In accordance with this arrangement, the counsel for the United States was subsequently instructed to withdraw the claim of Isaac Taylor v. The Republic of France, and certain claims against the United States which rested upon a corresponding state of facts were withdrawn by the agent for the French Government. Those cases are enumerated in that part of the report which relates to the claim of G. A. Le More & Co. vs. The United States, No. 211.

WILLIAM C. TRIPLER v. THE FRENCH REPUBLIC, No. 4.

THOMAS MASSON . THE FRENCH REPUBLIC, No. 15.

These memorialists set forth in their memorials that in the year 1863, while they were in partnership, and residing temporarily at the city of Acapulco, in the Republic of Mexico, they became the owners by purchase of a steamship called the Anahuac, and a schooner called the Teresa, both of which vessels were employed by them in the transaction of their business as merchants. The evidence disclosed the fact that, although the purchase money was paid by Tripler and Masson, the conveyance was made to a Mexican named Barrera. The reason given by Barrera in explanation of the arrangement was that Masson and Tripler, being American citizens, could not own a vessel and carry on the coasting trade under the flag of Mexico. In the mouth of February, 1864, these vessels left Acapulco for Puerto Angel, in the Republic of Mexico, where the cargo was delivered and a return cargo was taken on board. Upon the return of the vessels from Puerto Angel, the Anahuac was boarded by an officer from a French man of war, the Le Rhin. Shortly afterwards two large launches from a French frigate called the Pallas were sent, and the men and officers from the launches took possession of the two vessels. The vessels making the seizure were a part of the blockading squadron which was then engaged in support of what was called the "Imperial party" in Mexico, under the lead of Maximilian, in opposition to what was known as the "Republican Government," or "Liberal Government" in that country. The Anahuac was used as a dispatch-boat for a time, and the evidence showed that there were proceedings by which the vessel and cargo were declared to be a prize of war by a local prize court, but that when the case was brought before the imperial council of prizes it was decreed that the vessel should be restored to the owners. That action was in conformity to a decree of the 29th of March, 1865, in which it was

provided that restoration should be made in all cases where the vessels and cargoes had not been definitively condemned." The proceeds of the cargo when sold were deposited to the credit of whomsoever it might concern in the Caisse des Dépôts et Consignations at Paris. It appeared from the evidence that the vessel was never restored, the reason given being that it was not practicable to find the owners.

The majority of the Commission, Baron de Arinos and Mr. Lefaivre, made an award in each case, in the terms following:

WASHINGTON, March 26, 1884.

The cargo of the Anahuac was sold by the French authorities, and the proceeds of the sale, amounting to 6,829.57 francs, were deposited with the "Caisse des Invalides de la Marine" of France. The court of prizes of France decreed restoration of said cargo, or of its proceeds, to its owner.

We award that the French Government shall pay a sum equal to one-half of said proceeds deposited with the "Caisse des Invalides de la Marine" of France, amounting to 3,414.78 francs to the claimant, as owner of one-half of the cargo of the Anahaue, with interest at the rate of 5 per cent. per annum from April 1, A. D. 1864. And when said award shall have been paid by the Government of the French Republic to the Government of the United States of America, the French Government shall be subrogated to the rights of the claimant to the said one-half of the sum of 6,829.57 francs deposited as aforesaid, with accruing interest.

The rest of the claim is disallowed.

Mr. Commissioner Aldis added the following:

While I assent to the above allowance, I must respectfully express the opinion that the further sum of $4,888 ought to be allowed for the Mexican dollars which I think were taken by the French military authorities.

THE ARIZONA MINING Co. v. THE REPUBLIC OF FRANCE, No. 13.

George GooDRUM . THE REPUBLIC OF FRANCE, No. 16.

W. W. WILLUSTUN AND W. J. DUTTON, EXECUTORS OF THE ESTATE OF CORY WILLUSTUN, v. THE REPUBLIC OF FRANCE, No. 17. These claims all rest upon one state of facts. A certain schooner, called the William L. Richardson, was the property of Cory Willustun, deceased, and George Goodrum. The Richardson was an American ship, the owners were American citizens, and the vessel was duly registered at the custom-house of San Francisco. On or about the 11th day of October, 1864, the vessel cleared from the port of San Francisco under command of Goodrum, destined for La Paz, on the Colorado River, in the Territory of Arizona. The Arizona Mining Co., a corporation existing under the laws of the State of New York, was engaged in mining in Arizona and for the purpose, as was alleged, of prosecuting its business, the company shipped 100 kegs of powder on board the William L. Richardson. When the William L. Richardson was in the Gulf of California and near the port of La Paz, in Mexico, she was brought to by shots from the French war steamer called the Diamant, and boarded. The French naval officer who had charge of the boarding-party demanded the vessel's papers. These were delivered under protest, and the schooner was taken in tow to a point about eight miles distant from La Paz, where the hatches were opened and the powder seized and taken possession of by the authority of the officer in command of the Diamant. The claims of Goodrum and Willustun, Nos. 16 and 17, covered the freight on the powder, damages for the detention of the William L. Richardson for the period of ten days, and further damages for the breaking up of their freighting line on the Colorado River, amounting in all to $10,000. The Arizona Mining Company claimed compensation for the value of the powder taken

by the steamer Diamant, and for the injury to the business of the company in consequence of the loss. At the time of the seizure the coast of the Gulf of California was guarded by French cruisers, although no formal blockade of the ports of Mexico had been declared. It appeared that an order had been given by the French authorities to the French consul at San Francisco not to certify an invoice of powder to any port in Mexico. The seizure of the vessel and the appropriation of the powder were justified by the counsel for the French Republic upon the ground that the presence of the William L. Richardson so near the western shores of the Gulf of California, and near the port of La Paz, in Mexico, warranted the conclusion that the powder was destined for a Mexican port.

The bill of lading and the testimony introduced showed that the powder was blasting powder, and it was contended on the part of the counsel for the United States that the vessel, in hugging the western coast of the Gulf of California, was on a direct line to the mouth of the Colorado River. It was claimed by the counsel for the Republic of France that the powder had been condemned by a French tribunal as prize of war. Evidence of the condemnation was not produced, but a certificate was furnished, made by the minister of the navy and of the colonies, that 100 kegs of powder were captured on board the ship Richardson by the French aviso the Diamant, of the naval division of the Pacific Ocean; that the seizure of that powder, regarded as contraband of war, had been held to be valid by the council of prizes; that its value, amounting to 1,303.70 francs had been the subject consequently of distribution among the captors, and that the production of a copy of said judgment was not possible, the archives of the council of prizes having been burned in 1871. Upon this certificate it was contended on the part of the counsel for the French Government that as to the powder the claim was barred by the second article of the treaty under the interpretation which had been given to it by the diplomatic representatives of the two Governments. It was further claimed by the counsel for the French Government that the decision of the case by the imperial council of prizes was final; that its decision that the powder was contraband of war affected the vessel; that the claims of Goodrum and Willustun should be rejected for the reason that the ship was engaged in transporting goods contraband of war, and that consequently no claim for detention for the purpose of search. ing the vessel and taking therefrom such goods could be maintained. It was said by the counsel for the United States, in reply:

By the treaty of 1853 between Mexico and the United States the United States was entitled to the free navigation of the Gulf of California for the purpose of availing itself of the river Colorado, which is wholly within our jurisdiction. The Richardson sailed from San Francisco, as it appears from the record, without knowledge that a blockade had been declared. She was sailing at the time of the arrest in waters to which we had free access by the treaty, and that right of access was not disturbed by the circumstance that France had engaged in war with Mexico. Those waters remained free to us for all our purposes. If war existed, and a blockade had been declared, then, of course, we had no right to run the blockade. If this vessel had been engaged in running the blockade, she was subject to seizure. But the mere fact that she was using the waters of the United States-this vessel being a vessel of the United States -gave her an absolute right to be where she was. She was precisely in the situation in which a vessel clearing from Halifax, in Nova Scotia, and bound to the Bermuda Islands, which were British possessions, would have been during our war with reference to the blockade on our coast. It would not have been competent for one of our blockading vessels to have seized a British ship when thus on her way by the ordinary course, or out of her way by stress of storm. The seizing vessel must know, before laying hands on a neutral ship, or even ordering her to heave to, that she was out of her proper course by her own motion, and that the diversion from the proper course must have been of such a nature as to show that she was intending to run the blockade. Otherwise the assaulting party is culpable, and otherwise there would be no freedom