of the sea. The Richardson was moving towards the mouth of the Colorado River by the direct line, as may be seen by the map. She was hugging the coast, to be sure, the western coast of the Gulf of California; but that was the line of direct movement towards the mouth of the Colorado River. The idea that she should have taken the middle of the Gulf, or the eastern shore, is absurd, as the western coast was the nearer way, and she had a right to use it. I say further that even if there was evidence that she intended to land at La Paz, in Mexico, the most that could have been done by a blockading vessel was to intercept her and give her notice that she could not enter a port of Mexico. That is what the Diamant was bound to do. She had no right to board the Richardson. The Richardson was equipped with clean papers, and bound from San Francisco to a port on the Colorado River. She was in waters which, by treaty, we had a right to use. Therefore the French vessel had no right, even if the master had absolute knowledge that the Richardson intended to enter La Paz, in Mexico, to do anything more than to notify her of the blockade. Therefore the French vessel was in fault altogether. That fact established carries with it the whole of this

case.

We were upon a water on which we had a right to sail our ships, and upon two grounds-first, that it was an open sea; secondly, if it was not an open sea, it was water within the jurisdiction of Mexico, and if it was within the jurisdiction of Mexico, that we had a right to sail upon it by virtue of the treaty of 1853. Therefore we had a right to be upon that water at that particular time, unmolested by any government on the face of the earth. If Mexico and France were at war, the only limitation upon that right would be the right of France to enforce against us the rules of war in reference to blockade. All that the Diamant had a right to do was to warn us off if she thought we were bound to a port of Mexico with articles contraband of war, or to aid the belligerent.

By the action of a majority of the Commission, Baron de Arinos and Mr. Lefaivre, these cases were all dismissed for want of jurisdiction. Mr. Commissioner Aldis dissented from the decision of the majority, and reserved the right to file an opinion. That right has not been exercised by the commissioner. It is understood that a majority of the commission accepted the certificate of the minister of the navy and of the colonies as satisfactory proof that the case had been judicially disposed of, conformably to the diplomatic agreement between the two governments.

WILLIAM OGDEN GILES v. THE REPUBLIC OF FRANCE, No. 12.

The claimant, an American citizen, was the owner of a factory, situated at Pantin, between the walls and the outer fortifications of the city of Paris. The factory was erected in 1869 for the purpose of carry: ing on the business of preserving wood for railroad ties. In 1870, and during the seige of Paris by the Germans, the factory with its contents was destroyed, for which the memorialist claimed compensation in the sum of 52,722.80 francs. The evidence tended to show, and the facts were in substance admitted by the counsel for the French Republic, that during the seige of Paris the property of Giles so situated was injured and portions of it taken by franc-tireurs, the guard-nationale, and marauders. Following the partial destruction of the property an order was gived by General Trochu for the evacuation of what was called the. "zone militaire," in which the factory of said Giles was situated. This order was dated the 8th day of September, 1870. The 10th day of September, two days afterwards, the "Moniteur Universal" announced the destruction of the buildings in the "zone militaire" by fire as a measure very expedient.

It was claimed by the counsel for the Republic of France that the military zone around Paris is limited by the law of 1821 to 150 meters, and therefore Giles's buildings, that were at a distance of 450 meters, could not be included; beside, the report of the chief of the engineers showed that no property was destroyed in that vicinity.

It was also claimed by the counsel for the French Republic that the acts complained of, if committed, were the unauthorized acts of soldiers and marauders; that no authority had been given by any civil or military officer of the French Government; that by the terms of the treaty and the decisions of the Commission the Government was not responsible therefor; and that, as to the order of General Trochu, it did not direct the destruction of the works, but merely the abandonment of the buildings within the "zone militaire." The destruction of them subsequently, whether for the purpose of destroying buildings that might be used by the German army as shelter and protection, or destroyed by the German army in its attack upon Paris, did not impose upon the French Government any liability.

The claim was disallowed by a majority of the Commission, consisting of Baron de Arinos, and Mr. Lefaivre. The commissioner on the part of the United States dissented from the opinion of the majority, and said:

It fully appears that the building of the claimant was torn down and used for fuel by the national guards, franc-tireurs, and marauders. The injury by marauders I do not think ought to be allowed, but that done by the national guards and franctireurs I think ought to be allowed.

WILLIAM H. FREAR v. THE REPUBLIC OF FRANCE, No. 9.

The claim of the memorialist, amounting to $891,933, originated in contracts made by him with the Government of France during the Franco-German war.

The case was an important one, but the questions involved and passed upon by the Commission will not probably be cited as precedents hereafter, and I have therefore not thought it important to review the testimony or the arguments.

The claim was disallowed by the unanimous opinion of the Commission, and their opinion contains a statement of the nature of the claims and the points raised by counsel in the course of the discussion. It is as follows:

The record in this case, with the briefs and printed arguments, contain about 1,800 pages. The evidence is conflicting. The questions of fact and of law are many and difficult. We have endeavored to examine the case carefully and thoroughly.

It is impossible for us to set forth in detail our views as to the evidence and the facts proved. All we can do is to indicate briefly our decisions and the reasons of them.

The claim consists

1st. Of four items for potatoes, contracted to be delivered by one Chevannes to the French Government in Paris, within eight days following the raising of the siege of Paris.

Chevannes assigned the contract to claimant, and he claims that he delivered the potatoes in Paris according to contract. Two of the items are for interest.

The French Government claims that the potatoes were not delivered according to the contract, and that when delivered they were seized by the Commune, then in insurrection against the Government.

When was the siege of Pairs raised?

There was no official announcement of the raising of the siege. The armistice was signed on the 28th of January, 1871. By the terms of the armistice the Prussian authorities agreed to give all possible facilities to the French Government and its agents to bring provisions into Paris.

On the 31st January, the French minister of foreign affairs directed the French chargé in London to send provisions by Dieppe, "Dieppe being chosen because it is connected with Paris by railroad lines which have not been devastated."

On the 2d of February the French Government gave public notice that all merchandise necessary for food could be safely brought into Paris, and that the Government renounced all right to requisitions.

On February 3 trains of provisions from Dieppe were brought into Paris. On the

4th and 5th of February 227 car-loads of provisions arrived at Paris; and from that time on the revictualing of Paris proceeded with great activity, and without obstruction by the Prussians. For all practical purposes as to the delivery of provisions in Paris the siege was raised by (at the latest) the 6th day of February.

The claimant says that he delivered the potatoes at the railway station in Paris by the 16th of March; that is, not within eight days after the raising of the siege, but only within thirty-eight days after.

This was not performance of the contract. Clearly the French Government was not bound to receive the potatoes.

It is true that many questions as to the terms on which peace might be made were still under discussion, and till these were settled the Prussian forces were not withdrawn; but as to the revictualling of Paris, the siege was raised.

Item 5 is for 112,808 francs due on the contract for provisions delivered March 10,

1871.

Mr. Frear claims that he delivered, and the French authorities received, provisions to the value of 2,765,382 francs, and paid him only a sum less than that amount by 112,808 francs.

But the French authorities claimed that there was a deficiency in the quantity and quality of the provisions delivered, amounting to 226,000 francs; so that, according to their claim, they had overpaid him.

This dispute was finally settled by one Harouel, acting on behalf of Frear. He allowed 70,000 francs for the alleged deficiency, and the French authorities paid him the balance. Mr. Frear claims that Harouel was not authorized to make such a compromise. We think he was so authorized, and that that settlement is binding on the claimant.

With the disallowance of the fifth item, the sixth, seventh, and eighth items for interest, and the ninth for loss of profits on the balance of the contract, are also disallowed.

Mr. Frear had become bankrupt, and the "oppositions" of his creditors, by which the money coming from the Government had been attached, and so the payment of it either to him or his creditors was delayed, cannot be made chargeable to the Gov

ernment.

So, too, we think item 9, for loss of profits, is not chargeable to the Government, for, in reality, he had not performed his contract in delivering the provisions within the time specified; and the acceptance of the amounts delivered by the French authorities was upon the basis of compromise that no further claims under that contract should be made.

Lariviere had an assignment of the contract, and was fully authorized to make the compromise. Item 10 is disallowed with item 9. Item 11 is for the loss of profits on the contract for cartridges.

On December 1, 1870, Mr. Frear made a contract with the French Government to supply them with twenty millions of cartridges, which, after being submitted to a test, if satisfactory, were to be forwarded to the director of artillery at Cherbourg at the rate of one million for the week beginning December 16th and two millions for each week thereafter, and all to be delivered by February 28, at the latest. The dates for delivery were to be strictly kept.

It is plain that delivery at the times fixed was of the essence of the contract. This is obvious both from the terms of the contract and from the nature of the case. So far from complying with the terms of the contract, Lariviere, to whom Frear had assigned the contract, and Cannot, the manufacturer, had delivered only 1,584,000 cartridges, as he claims, on the 30th January. At that time 11,000,000 should have been delivered. In point of fact the 1,584,000 were not delivered on the 30th January, though the French agent had given the required certificate. They were not delivered till the 1st of March, when the whole twenty millions were due.

Various excuses and pretenses for not delivering according to the contract are set up, but we think none of them satisfactory or sufficient. The French authorities were fully justified in annulling the contract and refusing to receive any more. They did receive 2,586,658 cartridges, and paid for them 393,172.08 francs.

This item is disallowed.

Item 13. Damages for defamation of claimant's character by the French Government. Article I of the Convention gives us jurisdiction of claims arising out of acts committed against the persons or property of citizens of the United States by the French civil or military authorities upon the high seas or within the territory of France," &c. Neither Government intended to include slander and libel among the "acts committed against the persons or property of citizens."

We do not deem, it necessary to dwell upon this point.

S. L. M. BARLOW, ASSIGNEE, AND A. B. STEINBERGER, ASSIGNEE, v. THE REPUBLIC OF FRANCE, No. 18.

This claim also originated in contracts made with the French Government by the persons represented by the memorialists, and during the Franco-German war. In this case the testimony was voluminous, but the controversy was for the most part upon questions of fact, which are briefly but fairly stated in the opinion of the Commission by which the claim was disallowed. That opinion is in these words:

WASHINGTON, March 26, 1884.

The contract of November 28, 1870, entered into by and between the Government of France and Messrs. Valentine, Billings & St. Laurent for the supply of a large amount of war material, was executed at a time when the French Government was in a great and urgent need of arms and ammunition for the prosecution of its war against Germany. By that contract a very short time was allowed to the contractors within which the material was to be furnished; and that fact shows that both parties understood that time was to be considered of the essence of the contract.

One of the conditions of the contract was that the contractors should make at New York a large money deposit as security for their performance of their part of the undertaking. These contractors, being unable to make such a deposit, it was agreed between them and the French Government that a penal bond of Mr. C. K. Garrison, in the sum of 1,000,000 francs, should be substituted for the money deposit originally required by the contract, and the bond was furnished on the 21st of January, 1871, by said Garrison to the agents of the French Government. That Government assumed no contract relations with Mr. Garrison, and knew him in no other light than that of a surety or guarantor of the contract of Valentine, Billings & St. Laurent.

On the 11th of February, 1871, the French Government, in view of the failure of the contractors to dispatch from New York the war material that it had contracted for on November 28, 1870, on the condition that it should be shipped within eighteen days from the beginning of the inspection of the material by its agents, instructed its agents in the United States to cease inspecting the material, and thus abrogated the contract.

All of the parties interested in said contract with the French Government thereupon appointed Mr. S. L. M. Barlow their trustee and agent to obtain a settlement from that Government of the claim which they conceived themselves to have for the improper abrogation of the contract.

One step in the prosecution of the claim was the institution, at London, of a suit to enjoin the agents of the French Government in that city from paying out a sum of 6,000,000 francs, which had been deposited with them to meet anticipated drafts to be drawn against shipments of the war material. A preliminary injunction was granted by the chancery court of England.

On June 7, 1871, Valentine, claiming to represent himself and Billings and St. Laurent, made with the French Government a new contract for the supply of part of the war material that had been contracted for on November 28, 1870. One of the conditions of this new contract was that the old contract should be considered as annulled. Another condition was that the injunction suit at London should be discontinued. This latter condition was promptly complied with. The correspondence between Mr. Barlow, trustee, and agent of the original contractors of A. B. Steinberger, assignee, and of the surety, C. K. Garrison, and Mr. J. P. Benjamin, his counsel at London, and the evidence of Barlow in the suit of Hoves and Crowel vs. Garrison, which is found in the record, show that it was with the knowledge and consent of Mr. Barlow, the trustee and authorized agent, and therefore of his principals, that said injunction suit was withdrawn.

The new contract of June 7, 1871, was carried out by the contractors and the French Government. Garrison furnished the war material which he had purchased, and provided for the execution of the original contract; drafts were drawn by the contractors upon the agents of the French Government in payment for said material; the proceeds of the drafts went into the hands of Barlow, the agent of the contractors; Garrison received more than he had expended in the purchase of the war material that was duly inspected or disbursed in the way of incidental expenses; the purposes of the compromise contract of June 7, 1871, were fully accomplished, and the French Government was relieved of all liability, if any had existed, to indemnify the original contractors for the abrogation, on February 13, 1871, of the contract of November 28, 1870.

CONCLUSION.

At it was the purpose of the contracting parties to compensate citizens of the United States for losses sustained and injuries suffered at the hands of the authorities of France, as specified in the treaty, and to compensate citizens of France for like losses and injuries sustained and suffered by the acts of the authorities of the United States, I have not felt called upon to contest claims that seemed to be just, nor to raise questions of law that I did not think were warranted by the practice of nations or authorized by the terms of the treaty. In several cases I admitted the liability of the United States. In a majority of instances involving questions of jurisdiction the positions taken by me were sustained by the Commission. It happened in a small number of cases that the positions so taken in the defense of claims against the United States and sustained by the Commission were not in harmony with the opinions of the private counsel of claimants against France whose claims rested upon a corresponding state of facts.

In those cases I could neither make nor adopt arguments that were inconsistent with my own opinions and antagonistic to the decisions of the Commission. I could only contend for uniformity.

I trust that it is not out of place for me to say that from the organization of the Commission to the day of its dissolution the good offices of the Department of State were rendered constantly to those who represented the Government before the Commission. If in the prosecution of the business a reasonable degree of success has been attained, credit is due to the assistant counsel, and to Mr. Peddrick, the secretary of the Commission on the part of the United States. With great respect, your most obedient servant,

GEO. S. BOUTWELL,

Agent and Counsel for the United States.

EXHIBIT À.

Convention between the United States of America and the French Republic for the settlement of certain claims of the citizens of either country against the other.

[Concluded January15, 1880; ratification advised by the Senate March 29, 1880; ratified by the President of the United States April 3, 1880; ratified by the President of the French Republic June 9, 1880; ratifications exchanged at Washington June 23, 1880; proclaimed, June 25, 1880.]

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.

A PROCLAMATION.

Whereas, a Convention between the United States of America and the French Republic, for the settlement of certain claims of the citizens of either country against the other, was concluded and signed by their respective plenipotentiaries, at the city of Washington, on the fifteenth day of January, in the year one thousand eight hundred and eighty, which Convention is word for word as follows:

Convention between the United States of America and the French Republic, for the settlement of certain claims of the citizens of either country against the other.

The United States of America and the French Republic, animated by the desire to settle and adjust amicably the claims made by the citizens of either country

Convention entre les États-Unis d'Amérique et la République Française, pour le réglement de certaines réclamations des citoyens de chacun des deux pays contre l'autre.

Les États-Unis d'Amérique et la République Française, animés du désir de régler par un arrangement amical les réclamations éleveés par les citoyens de chacun