THE REQUEST OF APRIL 29, 1882.

2. On the 29th of April, 1882, we again called the attention of counsel to this subject in these words:

"There is another subject to which the commissioners call the attention of counsel. "The term of the Commission expires on the 22d of December, or at the latest, on the 22d of next March. If the whole intervening time is constantly devoted to the examination of cases it will be necessary to decide more than two cases each day in order to finish the whole work of the Commission. It is apparent, therefore, that cases ought to be got ready at once for the examination of the Commission, so that they may from this time have cases in their hands to be examined and decided. The secretary reports to us that there are now twenty-five cases in which the testimony is closed on both sides. If briefs could be prepared at once in these cases, instead of taking the forty days given by the existing rules, so as to enable us to begin now the examination of cases, it would greatly promote the despatch of business."

This was a request, not an order. It was made in the desire to promote the despatch of business, and it was hoped that it would be met in the same spirit.

The counsel for the United States had moved on the 26th of April for an order requiring claimants to close taking testimony in all cases by June 1. The claimants had already had from one year in many cases to over four months in all cases over and above the three months granted them by the general rules, in which to take their testimony. Notwithstanding this the French counsel and the special counsel for claimants requested and urged that the time for them to take testimony be extended at least to June 30, and stated various reasons therefor.

THE CALL AND ORDER OF MAY 6.

3. Upon the 6th of May we complied with their requests, and ordered that the claimants have till June 30, instead of June 1, to take their testimony, and the United States till November 10, and that after November 10 claimants, if wishing to take rebutting testimony, must apply immediately, so that all testimony could be closed by

December 10.

The Commission then added these words to the order:

"It is obvious that this distribution of time leaves but a very short period for the commissioners to examine all the evidence in all the cases, and to properly decide them and complete the work of the Commission, especially if the large mass of cases be left to accumulate and to remain undisposed of till December.

"To avoid such accumulation we call the attention of counsel to the present condition of the business, with the hope that they will immediately present their briefs in all those cases in which the testimony is closed on both sides. There are about thirty such cases, and we shall direct them to be called this morning in order to ascertain whether they may not be got ready for hearing and decision in a few days.

"There are about one hundred and fifty-three cases in which the claimants have closed the taking of their testimony. In these cases the United States counsel can now proceed to take testimony. In many we hope testimony has already been taken. If these cases could be closed by the 1st of July, and then submitted to us for decision, it would prevent the accumulation of business towards the end of the term of the Commission, and greatly promote the despatch of business."

The 30 cases were then called; the record shows there were 36.

This was the third time we had been obliged to call for briefs not filed according to the rules.

This order of May 6 did not alter any of our existing rules. It only extended the time for the claimants to take their testimony; an extension granted to them as a favor and at their urgent request. It did not alter the rule as to submitting cases and making briefs. It only sought to ascertain whether cases "closed on both sides," and which had been so closed since February 10, "might not be got ready for hearing and decision in a few days." But no order to that effect was made; nor was allusion made to any one's being in default, although the French counsel or claimants' counsel should have filed briefs in fifteen days from February 10, and were then (May 6) delinquent in about twenty-five cases for over two months.

It is of this order that the counsel for France say: "That the orders of May 6 and November 20, in setting aside some of the most vital rules adopted by this Commission bave created confusion, and, instead of tending to facilitate the despatch of business, have greatly embarrassed it."

Instead of this statement being true, it will be seen that the order of May 6 did not set aside any rules. It extended the time for taking testimony beyond the times fixed by the rules, and this extension was granted at the urgent request of the French counsel and claimants, and in behalf of their interests. If such an extension had not been granted to claimants, who, up to that time had neglected or been un

able to take their testimony, a large number of the claimants would have been cut off from proving their claims, and could not have obtained any allowance. The order of May 6 was necessary, clear, and useful for the despatch of business, and especially indulgent to the claimants. It put the taking of testimony by both sides on a fair and just basis. It is appended, and we refer to it.

CASES SUBMITTED AND BRIEFS FILED BETWEEN MAY 6 AND JUNE 30.

4. Thirty-six cases closed on both sides were called in the public meeting of May 6,

1882.

In 8 of these cases briefs had been filed prior to May 6, leaving twenty-eight in which briefs were to be filed, and in which, by the rules, the claimants' opening briefs should have been filed by May 21. Between May 6 and June 30 only nine cases were submitted.

In ten of the twenty-eight cases the French counsel had filed opening briefs before June 30, leaving eighteen in which he had not filed an opening brief. Indeed, in sixteen of these cases no opening briefs have bee filed up to March 20, 1883.

66

On the 30th of June, the last meeting before the adjournment for the summer, the French assistant counsel moved for forty days additional time to take rebutting testimony in thirty-six cases, and for from thirty to sixty days to take testimony-in-chief in 100 other cases. As rebutting testimony cannot properly be taken (see Rule 14) until "after the proofs on the part of the defense" (the United States) shall have been closed, when, if the claimants desire to take rebutting proof, the Commission will accord a reasonable time therefor," the Commission granted thirty days to take the rebutting proof, and in the other 100 cases extended the time of claimants to thirty days more. At the expiration of thirty days (July 30) the testimony on both sides would be closed in these thirty-six cases, and then, under the rules, by the 10th of September, 1882, these thirty-six additional cases should have been briefed and submitted, making, with the previous twenty-seven cases, in all sixty-three. Indeed, it was reasonable to expect that from the 153 cases referred to in the order of May 6, a large number would be briefed and submitted for decision by the time we met again, on the 3d of October.

Between the 30th of June and the
On the 3d of October two more

The Commission met again on the 3d of October. 3d of October only four cases had been submitted. cases were submitted-six instead of sixty-three. On account of illness Mr. de Geofroy was not able to attend the meetings of the Commission till the 21st of October.

NOTICE OF OCTOBER 21, 1882.

5. At the meeting of the 21st of October the Commission made the following statement:

"The Commissioners have had under considération the matter of the extension of time to take testimony. Heretofore the Commission has been liberal in affording both sides opportunities to complete their testimony; but the limitation put upon the continuance of this tribunal compels us to be hereafter very rigid in passing upon applications for further time to take testimony, and the counsel for the Governments, and all other parties interested, must take notice that hereafter no further extension of time will be allowed, except upon urgent reasons given, properly supported by official statements or affidavits."

Motions on behalf of the claimants for the extension of time to take testimony continued to be made by the French counsel; and at the meeting of November 11 the subject was fully discussed by the counsel of both Governments.

On the 13th of November Mr. Boutwell, the counsel for the United States, presented a statement showing the condition of the business of the Commission on November 12, and the form of an order which he wished the Commission to adopt in regard to filing briefs and granting extensions of time to take testimony. The counsel for France replied to the statement, and presented his form for an order on the subject.

It was obvious that some general order must be made limiting the time for taking testimony on both sides, or the business of the Commission could not be finished in the time prescribed by the convention.

It further appeared that between the 3d of October and the 20th of November, a period of forty-eight days, only twelve cases had been briefed and submitted. At that rate, instead of closing the business by the 1st of July, 1883, the time prescribed by the convention, it would take between five and six years to finish the business.

It was plain that the existing rules were wholly insufficient; and the practice under them led to endless delays, and would defeat the objects for which the Commission was established. More stringent rules, not merely requesting more briefs, but requiring them at stated periods, were necessary.

THE ORDER OF NOVEMBER 20, 1882.

6. For these reasons the order of November 20 was adopted, which is appended to this report, but need not here be set forth in full. The following orders which refer to the making and submitting of briefs were then made:

“Opinion and order relative to the business of the Commission.

When the order of May 6 was made it was expected that the term of this Commission would expire on the 22d day of March, 1883. The order then made contemplated that the taking of testimony should cease in December, 1882, so that the commissioners should have three months after all the testimony was taken to examin and decide the cases.

"Since then the term has been extended to July 1, 1883-three months and eight days.

This extension enables us to extend the time of the claimants and of the two Governments for taking testimony for three months and eight days.

"The question now is, How shall we proceed to distribute this time among the parties so as best to promote the dispatch of business and to enable the parties to present all their testimony?

"I. We cannot assume that the Governments will again extend the time beyond July 1.

We must make our order on that basis, that the Commission will not extend beyond July 1.

"II. There will probably be about 500 cases to be examined and decided by the commissioners between this date and the first of next July; that is, about three cases for every working day, or eighteen cases per week.

"To complete the work of the Commission it is absolutely necessary that the busines shall be so arranged and the cases so set for taking testimony, and so disposed of by counsel, that a constant supply of cases ready for decision shall henceforth be furnished to the commissioners, and so that they may always have on hand daily three cases for examination and decision.

III. There are now sixty-seven cases closed on both sides, and in which briefs can at once be made.

"It is ordered that in these cases briefs be prepared, filed, and furnished by the counsel of the French Republic to the counsel of the United States; and that briefs in reply be prepared, tiled, and furnished by the counsel of the United States to the counsel of the French Republic, as follows:

"Briefs by the French counsel: 8 by November 25; 10 additional by December 2; 10 additional by December 9; 13 additional by December 16; 13 additional by December 23; 13 additional by December 30.

Replies by the counsel of the United States: 8 by December 2; 10 additional by December 9; 10 additional by December 16; 13 additional by December 23; 13 additional by December 30; 13 additional by January 6, 1883.

"The counsel of the French Republic will, upon consultation with special counsel, select the cases in which briefs are to be prepared as above.

"If the counsel of the French Republic shall desire to file briefs in reply to the United States briefs, he must do so within one week from the day on which he receives the United States briefs. At the expiration of the week the cases will be deemed submitted to the commissioners for decision, unless the counsel wish to be beard orally. If either of the counsel wish to be heard orally, he must give notice in writing thereof on or before the third day after the expiration of such last week to the adverse counsel and to the secretary, who will inform the president of the Commission. The commissioners will fix a day for such hearing. At the end of the oral arguments the case will be considered as submitted.

"After the 30th of December briefs in eighteen cases must be prepared weekly by the French counsel and furnished to the American counsel, and briefs in reply weekly by the American counsel.

"The cases before the Commission cannot be completed and decided by the commissioners by the first of July next unless the weekly average of eighteen cases be supplied to the commissioners for decision after December 30th."

It is of this rule that the French counsel say it "has been productive only of delay and confusion, owing to the utter impossibility of understanding or of carrying it

out."

Is this true?

Could not the French counsel and the special counsel for claimants understand that they were required to furnish eight briefs by November 25th, ten by December 2d, ten by December 9th, and so on in such cases as the French counsel might select upon consultation with claimant's counsel, instead of furnishing in all cases briefs in

fifteen days after the cases were closed, as required by the original rule? The impossibility was not in understanding either the old rule or the new one, or in carrying them out. The trouble arose from disregarding them. The new rule requiring a specific number of briefs at stated periods was so clear and exact that it left the counsel no excuse for delay or neglect, and if obeyed would secure the indispensable dispatch of business.

In no other respect was the rule as to the preparation of briefs changed.

As it was the duty of the French counsel to take the initiative, to select the cases for briefing and to make the opening brief, his right and his duty in that respect were left untouched by the new order. Indeed, the order expressly stated: "The counsel of the French Republic will, upon consultation with special counsel, select the cases in which briefs are to be prepared as above." The special counsel could not appear before us except through the French counsel, could not present their briefs to us, but were obliged to present them to the French counsel, who submitted them to us as they saw fit. It was for him therefore to consult with the special counsel, to inform them of what our rules required, and to demand compliance with them. We could make our orders only upon him, not them, and require obedience of him, not them.

In this order there was nothing obscure, nothing difficult to do. If obeyed, the desired dispatch of business was secured.

We waited to see how the order would work. If it furnished us "the constant supply of cases ready for decision," we should be satisfied, and should not probably inquire as to the exact and literal compliance with the rule.

On the 22d of November six cases were furnished, and we hoped we should get enough to keep us constantly employed. In December eighteen cases were furnished. In January they fell off to seven. In February there were only eleven. And in March, up to the 15th, there were only three.

On the 15th of March we were without a single case for examination-the " stant supply" had failed.

con

In the preceding statement we have shown that these orders were clear, and not to be misunderstood by any one; that they were necessary on account of the neglect in furnishing briefs as required by the rules; that they were well calculated to speed the dispatch of business, and that the delays in submitting briefs have been occasioned, not by any defect in the rules, but by the negligence of the parties who should have furnished them.

WHAT THE FRENCH COUNSEL SHOULD HAVE DONE.

7. But on this point we may add, if there were anything in the orders which seemed obscure and conflicting to the French counsel, why did they not state to the Commission the difficulties they encountered in understanding and applying the orders, or their difficulties in procuring briefs from those bound to comply with the orders? If they had really desired the dispatch of business they should have done so, and the Commissioners would at once have explained or modified the orders, or enforced them by final decree, and thus have relieved them. Instead of this they have quietly acquiesced in and acted under the order of November 20 for four months, and until the 20th of March, and then for the first time, instead of stating their alleged difficulties, that they might be removed, they have without provocation assailed the Commission with groundless charges and erroneous assertions, and present these as excuses for not complying with the rules of the Commission requiring briefs.

V.

OF THE ALLEGED INCONSISTENCY IN OUR DECISIONS IN REGARD TO THE FORFEITURE OF FRENCH CITIZENSHIP "BY AN ESTABLISHMENT IN A FOREIGN COUNTRY WITHOUT INTENT TO RETURN," UNDER SEC. 17, CHAP. II, CODE CIVIL.

1. The Commission hold that mere residence and verbal declarations of an intent not to return are insufficient to work a forfeiture of French nationality. There must be a declaration in writing before a court of record, sworn to by the claimant, of an intent to remain here and become a citizen, like the declaration of intention to become a citizen, which is the first step in naturalization. Mere verbal declarations change from time to time, and are easily proved to be one thing to-day and another thing to-morrow.

2. They hold further that the written declaration of an intent to become a citizen and to remain here, though requisite, is not conclusive proof of the intent to remain "sans esprit de retour," when the evidence shows that the party after making his declaration changed his intention (as he had the right to do), refused to perfect his naturalization, and always after claimed and reserved his right to remain a French citizen.

In Parrenin's case (No. 62) there was no written declaration, but only verbal declarations of an intent to remain and not to return to France, accompanied with the declaration, "I have never intended to become an American citizen; I have always wished to preserve my nationality." Hence we held him to be a French citizen.

In Omer's case (No. 284) he says, "I have never renounced my allegiance to France. Some time before the war I made application for naturalization papers in the circuit court, but the application never was perfected, and I have never taken an oath to any other Government. It is not clear whether he means that he applied for papers declaring his intention to become a citizen and renounce allegiance to France and this was not perfected, or that he made his declaration of intention but did not perfect his naturalization by taking the second step. If the first, his case was like Parrenin's; but if the last, though prima facie sufficient, it was rebutted by proof that he had changed his intention and always claimed publicly to be a French citizen for more than twenty years, and was regarded by his neighbors as a French citizen. Upon the whole evidence we thought that his application for naturalization papers before the war, even if construed to be a declaration of intention (which was doubtful), was fully rebutted by his uniform conduct to the contrary for more than twenty years, and we therefore held him to be a French citizen.

In Huot's case (No. 535) the French counsel charges the Commission with a want of consistency in their decisions, because "the facts affecting the question of jurisdiction were practically similar to those developed in the cases of Parrenin and Omer,” and yet we refused to consider him a French citizen. 1. Mr. Huot was asked (record, p. 26), "Have you ever filed a declaration of intention to become a citizen of the United States; and if so, where and when?" Answer: "I have, in Fernandina, Fla., in 1876, before Judge Hillyer, clerk of the circuit court in Nassau County, Florida." On page 61 of the record the declaration is shown, "I, C. H. Huot, do declare on oath that it is my bona fide intention to become a citizen of the United States and to renounce forever all allegiance and fidelity to all and any foreign prince, potentate, state, and sovereignty whatsoever, and particularly to the Republic of France.-C. H. HUOT."

Here, then, is the written declaration which did not exist in Parrenin's case-the indispensable requisite to prove an “establishment without intent to return."

2. But as this only made a prima facie case we must look farther and ascertain whether there may not be evidence to prove that he had changed his intention to remain in this country.

He was asked (p. 26): “Is it your intention to remain in this country?" Answer. "It is my present intention to remain." He went to France in 1863 on a visit and staid about two months. He was asked, "When you visited France, as mentioned in your direct examination, was it with the intention of returning to the United States?" Answer, "It was my intention to return."

There was no evidence to show an intent to return to France or an intent not to become a citizen of the United States, but the contrary was fully shown.

This case, instead of being "similar to that of Parrenin and Omer in the facts affecting the question of jurisdiction," is totally unlike it on that vital point.

In the cases of Coulon (182) and Dubos (26) the alleged inconsistency is very obscurely stated. The allegation is that though Colon was brutally wounded while resisting the capture of his property upon his own premises (as if the military authorities of the United States were making "the capture"), yet we rejected his claim while we allowed the claim of Dubos, who was arrested and imprisoned by General

Butler.

In Coulon's case there were two witnesses to the main facts-Madame Coulon, the claimant, and Madame Hemard.

Madame Coulon's testimony, where she differs from Madame Hemard, we thought unreliable. Madame Hemard testified that about forty negro soldiers came into the orange grove; that "they came in pell-mell; one jumped the fence; others came in the gate; I did not see any officers; all were colored." They were stealing oranges and breaking the trees. Coulon told them to stop. One of the colored soldiers told him it was none of his business. I told Mr. Coulon he had better go away. The colored soldier told him if he did not go away he would shoot him." He then shot him.

We can allow only "claims arising out of acts committed by the civil or military authorities of the United States." Such are the words of the convention.

The statement of the case is, in the opinion of the Commission, enough to show that the act was not committed by the authorities of the United States, but was the brutal act of a lawless negro soldier. No officer was present at this alleged "capture" of his property, and the "capture" was stealing oranges.

In Dubos's case the act was committed by General Butler, and was approved by Mr. Seward and President Lincoln.

The Governments which have established this Commission, upon considering the facts here stated, will not fail to observe how constant and frequent have been our