Here I pause for a moment. What was the reason that led to the introduction of this sentence into this article of the treaty? If the words "territorial jurisdiction" had been used, doubts could have arisen about liabilities arising out of certain acts committed in Mexico. It could have been said that at times parts of that territory had been under the actual control of France, and in order to avoid a possible misconstruction or even a shadow of doubt the framers of the convention agreed to define the limits of French territory within which claims intended to be settled might have arisen. The jurisdiction of this Commission was limited to the territory of France, its colonies and dependencies, and nothing was said about territorial jurisdiction. Now, this was accepted by the Government of the United States. Why it was accepted is no matter for inquiry by this Commission. The words used by the treatymaking power control the decisions to be rendered by this Commission.

On the other hand, when the question of limiting the responsibility of the United States came up, another expression was substituted therefor, to wit, the words "within the territorial jurisdiction of the United States," meaning that whenever a claim had arisen within the territorial jurisdiction of the United States it should be competent for the Commission to be organized thereafter to examine that claim and to pass upon it.

I will illustrate this again by the words "the civil disturbance known as the 'insurrection of the Commune,''

Nobody has ever doubted that Paris was always under the jurisdiction of France, although it was not always under French control. During the occupation of Paris by the Commune, the exercise of the sovereign power of France had been interrupted; nevertheless it was admitted in the convention that claims might arise in Paris, for it was part of the territory of France. Now, by way of reciprocity, the words "territorial jurisdiction" were intended to mean the same thing, except that they were more extended.

The question of actual exercise of jurisdiction inside the limits of the United States has never been contemplated by the framers of this convention, and I say that the text as drawn shows this conclusively.

But even were the United States entitled here to the benefit of doubt, the construction of this article should be taken from the French text, where the French word "territoire" is constantly used.

Now, as to the question of actual occupation in the South and to that of actual jurisdiction.

Let me merely remark that the word jurisdiction, as it is used by my friend Governor Boutwell, is taken from the language of constitutional law, not from that of international law, and I venture to say when it is used by constitutional law writers or by authorities on constitutional questions, it has an entirely different meaning from the words "territorial jurisdiction," of such frequent use in international law.

And right here I think I can point out to the counsel for the United States the cause of what I will take the liberty to call his mistake; he is misled by the constitutional meaning of the word "jurisdiction" and he overlooks its meaning so far as international law is concerned.

My friend says that there was no exercise of jurisdiction in the South. Exercise of what jurisdiction? Of course that of the constitutional Government.

Such is the meaning of "jurisdiction" as used by the expounders of constitutional doctrines.

And in support of this, I will quote an authority which my friend on the other side will not deny. It is taken from a speech entitled "The Rights of the Rebel States." It was delivered in Congress by Governor Boutwell himself.

"Nor do I admit that the people in the rebellious States are aliens. They are not of any other country, they are not of any other legal jurisdiction, but they are within the jurisdiction of the Union. Three years ago, as all admit, they were a portion of the Union, and, although they have been carrying on a war, that war has not thus far been successful; their independence has not been acknowledged by us, nor has it been recognized by any other nation. They, therefore, are not aliens. They are, to be sure, public enemies, but they are not alien enemies."

And further on

"What then remains? Unquestionably it remains true that the Government of the United States has legal jurisdiction over this territory and over the people who occupy it." (Speeches relating to the Rebellion, by George S. Boutwell, pp. 312, 313.)

Mr. BOUTWELL.

Mr. DE CHAMBRUN. I am sorry that so distinguished a lawyer as my friend on the other side should have so given away his case. It is the absolute right of sovereignty that you claim in this speech. You never spoke of legal jurisdiction as you have done in the argument which I am answering. When on the floor of Congress you never admitted for one moment (I know your record quite well, and it is a good one) that the seceded States were out of the Union, and consequently outside the terri

torial jurisdiction of the United States. According to your own views it remained unimpaired.

The Government of the United States never failed to assert their legal jurisdiction over the whole extent of their territorial jurisdiction; thus, the Congress of the United States legislated for the South. It imposed taxes on the South, and it passed an act directing that the interest of back taxes should be added to the unpaid principal. This Government has justly asserted and maintained its jurisdiction, and since its counsel admits that the legal jurisdiction has never ceased, a fortiori the territorial jurisdiction has never been affected. In regard to this latter, nothing short of the recognition of the independence of the rebellious States, both by this Government and by foreign nations, could take away one inch of the territory of the United States. My friend on the other side stated that in the first part of Article I, of the convention of January 15, 1880, the "insurrection of the Commune" was spoken of. Did he mean that an act of the "insurrection of the Commune" must be compensated for by the Government of France? That would be a strange misconstruction of this provision inserted in this article. It means that during the existence of the Commune claims might have arisen against the Government of France, but it does not mean that the acts of the insurgent organization come within the jurisdiction of this Commission and that awards can be made here on account of damages by that so-called Government.

And now, in conclusion, I submit

1. That the words "jurisdiction of the United States" are broader than the word "territory."

2. That the convention excludes the damages committed by rebel authorities, but it admits all claims for injuries to persons and property when said acts have been committed by civil or military authorities of the United States.

3. The claimant must not have given aid or comfort to the enemies of the United States.

4. No losses for slaves were to be entertained before this Commission. In exchange for these limitations others were inserted in regard to claims against France; no need to state them again. I trust that I have said enough on this point.

Now, let me add one more remark. In the course of the argument in the case of P. 8. Wiltz, administrator, I remarked that technicalities kill law. To-day this remark would be equally true. Is it meant to construe the treaty so as to exclude the greater majority of the claims? If so, I say again that technicalities kill the law.

When speaking of the question of the rights of the administrators, I said that if the views of the counsel for the United States were to prevail the high contracting parties would be led to review the action of the Commission. To-day I again warn the counsel for the United States. If his ideas were adopted, if his principles about what he terms territorial jurisdiction were to be sanctioned by the Commission, it would be incumbent alone on the high contracting parties to consider jointly the

Mr. PRESIDENT AND GENTLEMEN OF THE COMMISSION:

I believe that the order just rendered by the Commission, in which it is held that no general and abstract discussion will be allowed, does not affect the motion which I have prepared, since the motion refers to certain individual cases, and is made in the claims of Anna Vidal v. The United States, No. 24; Pierre Petrequin v. The United States, No. 3, and Baptiste Lauga v. The United States, No. 39; therefore I will proceed to read it

"The counsel of the French Republic moves this honorable Commission to adopt the following order:

"Whereas the counsel of the United States has submitted to this honorable Com

mission, on behalf of the United States, a certain construction of the words 'territory' and 'territorial jurisdiction,' used in Article I of the convention of January 15, 180, between France and the United States;

"And whereas the counsel for the French Republic has opposed said iutended construction as contrary to the true intent and meaning of the convention of January 15, 1880, and on the grounds that it limits the jurisdiction granted to this Commission; and also on the further ground that the word 'territorial jurisdiction of the United States' are construed as conflicting with the word 'territoire' used in the French text of the convention;

"It is ordered, that the whole question thus raised by the counsel for the United States be referred to the high contracting parties for the determination of the issues thus presented; and that until their decision has been received by this Commission, no case in which the construction of the words thus used in the treaty is necessary to its determination shall be considered and adjudicated by this Commission. "CHARLES ADOLPHE DE CHAMBRUN, "Counsel for the French Republic. "A. PORTER MORSE, Assistant Counsel.

"WASHINGTON, March 24, 1882."

This motion is made in three of the cases, to which the argument on behalf of the United States was partly meant to apply. It is true that Governor Boutwell's argument, as it shows upon its face, was intended to lay down certain general propositions, intended to rule out eventually many cases pending before this Commission, but it referred specifically to Claims No. 24, 35, 39, and 100 against the United States, known as the "garden cases."

The argument was divided into two parts, the former relating to the principle of liability resulting from acts of piliage, and the latter relating, so far as it applied to cases at bar, to the question of territorial jurisdiction.

Mr. BOUTWELL. If you will allow me, I will show what I had in mind. The question of pillage was raised, of course, and it was a case of pillage according to our theory within the recognized territorial jurisdiction of the United States; but now, in order to show what the territorial jurisdiction of the United States was I was also under the necessity of showing what it was not, and therefore my argument of exclusio was just as pertinent as my argument of inclusion; and under the ninth head 1 proceeded to lay down arguments bearing upon those cases which were within the territorial jurisdiction of the United States, and the cases were admitted to be cases of taking within the territorial jurisdiction of the United States. I did the best I could. With more ingenuity I might have done better, but under the circumstances I could not show what was the territorial jurisdiction of the United States, upon our theory, without showing what was not.

I attempted to apply the doctrines which are contained in my ninth heading, which I consider as applicable to taking within the territorial jurisdiction of the United States, and therefore the part of my argument which was not absolutely necessary, was the first heading in regard to property taken necessary to the enemy in time of war. That does not bear much on those cases or any cases.

The argument upon territorial jurisdiction was entirely within the necessary field of debate upon the three cases before you. If I was to state the liability of the Government of the United States for taking property within the territorial jurisdiction of the United States, I was also under the necessity, logically, to state the theory of the counsel of the United States in regard to other territory which we claimed was not within the jurisdiction of the United States.

Mr. de CHAMBRUN. In other words, you consider that the part of your argument relating to territorial jurisdiction applies to the "garden cases."

Mr BOUTWELL. I do; there is no doubt of it; both the exclusion and the inclusion. Mr. de CHAMBRUN. Since that part of the argument of the counsel for the United States applies to the "garden cases," my motion will also apply to them, and is entirely free from the objection of being of a general character.

At the same time, in order to bring the whole subject before this Commission, I have prepared this second motion, of the presentation of which I have not yet given notice to the counsel for the United States.

"And now comes the counsel for the French Republic, who moves this honorable Commission to reconsider its decision in the above entitled case for the following reasons, that is to say:

"That the ground on which it was rendered is that the Commission was 'not pre

pared to hold that at the time of the burning of the cotton the place was within the territorial jurisdiction of the United States,' and that the question thus raised rests on the construction of part of Article I of the convention.

"2. That the words territorial jurisdiction of the United States,' are construed in such a way as to conflict with the meaning of the word 'territoire' used in the French text of the convention.

"3. That no decision can be rendered in this individual case until the high contracting parties shall have determined the meaning of the words 'territorial jurisdiction' and 'territoire,' as used in the English and French text of the convention of January 15, 1880. "CHARLES ADOLPHE DE CHAMBRUN."

I do not propose to speak on these motions. I will confine myself to the reading of the following statement:

"The undersigned, counsel for the French Republic, respectfully submits to this honorable Commission the following points in support of his motion:

"1. The decision rendered in the case of Joseph Choureau, No. 43, tends to establish a certain jurisprudence in regard to the meaning of the words 'territorial jurisdiction of the United States,' as used in Article I of the treaty, which conflicts with the sense in which said words are used in public law.

“2. It also conflicts with the French text of the convention of January 15, 1880, which contains the words 'territoire des Etats Unis.'

"3. The arguments of the counsel for the United States in the cases of Anna Vidal v. The United States, No. 24, of Pierre Petrequin v. The United States, No. 38, and of Baptiste Lauga v. The United States, No. 39, are founded in part on the above quoted decision and they contain general propositions which are intended to be drawn by way of deduction from the said decision, to wit, that the Government of the United States is not liable for a loss of property, if the property at the time the loss occurred was not within the territorial jurisdiction of the United States.

"4. That if this decision shall prevail, the claims which it was intended by the high contracting parties should be disposed of through the instrumentality of this Commission, would remain in abeyance and a large majority of said claims would be thrown

out.

"5. That the practical result of the adoption of the proposition presented by the counsel of the United States would actually reverse the views of the high contracting parties as laid down in the convention of January 15, 1880.

"6. That this honorable Commission has allowed the counsel for the United States to submit his views as far as applicable to certain cases now submitted to this Commission.

"7. That arguments have been also submitted by counsel for the French Republic. "For these several reasons, and also for additional reasons to be stated hereafter, if required, the undersigned most respectfully requests this honorable Commission to grant his motion.

Here I rest.

"CHARLES ADOLPHE DE CHAMBRUN,
"Counsel for the French Republic."

Mr. Boutwell delivered an argument. Mr. de CHAMBRUN. I will only say a very few words in answer to what has been stated by the counsel on the other side, for the reason that the point at issue had not been even touched upon. The only question pending is this: In the English text the words "territorial jurisdiction of the United States" are found, and in the French text the word "territoire" is used. On the construction of the words "territorial juris.lletion of the United States" the counsel for the United States has built one of his many systems of defense. The fate of about five-sevenths of the whole number of cases to come before this Commission seems at present to depend upon it. At the last meeting the Commission for the United States argued that the words "territorial jurisdiction" are meant to cover merely the territory actually possessed and held by the United States at the time the damage occurred, and to-day he argues that the word "territoire" has the same meaning.

Now, I say to the counsel of the United States that if he declares positively that the words "territorial jurisdiction of the United States" mean the same thing as "territoire," let him withdraw his general propositions, also his argument, and we will withdraw our motions. But I hear that my friend declines to do it.

Since he has decided to persist in his former views, I will state again the general proposition which I submitted at one of the last sessions of this Commission, to wit: That the words "territorial jurisdiction" have a broader sense than the word "territory." Let me illustrate this: When we speak of French jusisdiction in Chinese waters, of course we do not mean that these words extend to the territory of China; we apply it only to a kind of territorial jurisdiction over some parts of China. Who will contend that the word "territoire" applies? Is China a part of the "ter

ritory" of the United States? While in some respects some parts of that territory by virtue of treaty stipulations are under the "territorial jurisdiction" of the United States, the exact meaning of the words "territorial jurisdiction" and "territory" is so plain that I can hardly conceive how this question of construction has been raised by my friend.

I confess also that I cannot possibly conceive how the Commission has been led to construe the convention of January 15, 1880, as it did in the case of Joseph Choureau v. The United States.

Where injury is done to the person or property of a citizen of France by the civil or military authorities of the United States, this Commission, after ascertaining whether satisfactory evidence has been furnished on behalf of claimant, is bound to make an award. The fact that the injury was committed by on officer or agent of the United States controls and determines the liability.

But since the Commission has departed from the simple rule of construction, and in the face of texts which appear to be so easy to reconcile leans to views which would defeat the purposes of the high contracting parties, and in fact exclude the very claims which the two Governments wished to adjust by way of a friendly arbitration, it becomes necessary to refer to the two Governments the question so unfortunately raised. Indeed, if we are forced to choose between an interpretation that would amount in fact to a denial of justice and a reference of the matter-in other words, if we are compelled to select between two evils-let us act as prudent men and select the lesser. I do not claim that my motion offers to this Commission a satisfactory adjustment of the difficulty; I do claim that it is the only possible method to prevent a denial of justice. It seems, however, the only measure at command to extricate the Commission from the existing embarrassment into which the submission and entertainment of the propositious insisted upon by counsel for the United States has involved the Commission.

And now I come to suggest how, in my judgment, this reference can be made: After this Commission had organized, it gave notice of the fact to the respective Governments through their respective agents. This precedent was established according to the views of the two Governments; therefore any decisions of a like character rendered by this Commission should be communicated to the high contracting parties through the same channel.

Such is the plan which I respectfully submit to the honorable commissioners.

Once more, this plan in my judgment is very unsatisfactory, but since my friend declines to withdraw from his position, I think that it opens the only way to prevent denial of justice.

CHARLES ADOLPHE DE CHAMBRUN,
Counsel for the French Republic.

WASHINGTON, March 29, 1882.

No. 48.

Mr. Aldis to Mr. Frelinghuysen.

WASHINGTON, February 3, 1883.

SIR: Yesterday the commissioners of the French and American Claims Commission held a meeting and examined the whole business before the Commission.

We are unanimous in the opinion, and the counsel concur, that the term of the Commission should be extended to the 1st day of March,

A. D. 1884.

As the United States Senate adjourns on the 4th of March and does not meet again til December, it is necessary that the convention for extending the time should be sent to the Senate as soon as the 10th February instant; otherwise the pressure of business at the close of the session may prevent the convention's being considered and ratified.

The first article of the convention should extend the term for eight months, viz, to the 1st day of March, 1884.

The second article should provide that no evidence or testimany should be presented to or received by the Commission after July 1, 1883. This is important If no evidence is received after that date, then the whole