Ask if Gifford would prefer Basle if it can be arranged; he can keep his present post if he wishes.

SIR: The following telegram was sent to you on the 15th instant: Ask foreign office whether Albert C. Janin has been appointed assistant counsel before the French-American Commission; if not, what his official position there is.

Case of Le More, two hundred eleven, before French Commission, under discussion with French minister, being claimed by us as not within jurisdiction of Commission under agreement in case of Taylor against France, minister has not replied to our last communication. Meanwhile, French counsel urge case to trial. Ask that instructions be sent to delay action on this case until after return and conference with Mr. Roustan. Haste is necessary.

FRELINGHUYSEN.

No. 33.

Mr. Morton to Mr. Frelinghuysen.

No. 463.] PARIS, December 21, 1883. SIR: Upon receiving your telegram of the 15th instant, with reference to the official position of Mr. Albert C. Janin before the French and American Commission, application was immediately made to the foreign office for the desired information, and I have this day received an answer, addressed to Mr. Brulatour, the substance of which I have communicated this day by telegraph, stating that Mr. Janin had been recently appointed assistant counsel of the French agency before the Commission.

I inclose herewith copies of your telegram and of mine, with a copy and translation of Mr. Ferry's note.

I have, &c.,

LEVI P. MORTON.

1

[Translation.]

Mr. Ferry to Mr. Brulatour.

PARIS, December 20, 1883.

SIR: By your letter of the 17th instant, you have, in behalf of your Government, expressed the desire of knowing what is exactly the position of Mr. Albert Janin with the Commission of the Franco-American Claims at Washington.

I hasten to inform you that Mr. Albert Janin has recently been appointed assistant counsel of the French agency near the aforesaid Commission.

Please receive, &c.,

Ask foreign office whether Albert C. Janin has been appointed assistant counser before the French-American Commission; if not, what his official position there is. FRELINGHUYSEN. Received, Paris, December 15.

[Telegram.]

Mr. Morton to the Secretary of State.

FRELINGHUYSEN, Secretary, Washington:

I am informed officially that Mr. Albert C. Janin has recently been appointed assistant counsel of the French agency before the Franco-American Commission.

French minister answers to-day your request to delay trial of case of Le More before Mixed Commission that he is informed the Commission decided unanimously on the 19th to try the case on the 28th, and that American commissioner and Brazilian umpire agreed to this.

SIR Referring to your telegram received on the 21st ultimo, requesting me to apply for delay in the trial of the case of Mr. Le More, pending before the Franco-American Commission, which application was

made the same day in writing and verbally, I have the honor to send herewith copy and translation of the answer of the minister of foreign affairs. This answer reached me on the 28th ultimo, after our bags were closed. Its substance was immediately telegraphed to you.

I also inclose copies of the telegram received, and of my telegraphic

Case of Le More, two hundred eleven, before French Commission, under discussion with French minister, being claimed by us as not within jurisdiction of Commission, under agreement in case of Taylor against France, minister has not replied to our last communication. Meanwhile, French counsel urge case to trial. Ask that instructions be sent to delay action on this case until after return and conference with Mr. Roustan. Haste is necessary.

French minister answers to-day your request to delay trial of case of Le More before Mixed Commission that he is informed the Commission decided unanimously on the 19th to try the case on the 28th, and that American commissioner and Brazilian umpire agreed to this.

PARIS, December 28, 1883.

[Translation.]

Mr. Ferry to Mr. Morton.

MORTON, Minister.

PARIS, December 27, 1883.

SIR: On the 22d instant you had the goodness to communicate to me a telegram from Mr. Frelinghuysen relative to a claim brought by Mr. Le More, a Frenchman, and taken before the Mixed Commission at Washington. The Secretary of State of the United States wished that the judgment of this claim should be adjourned in order to allow the two Governments to decide whether it should not be withdrawn in virtue of Article II of the treaty of 1880.

In accordance with this desire, I immediately telegraphed to our commissioner at Washington not to object to the proposed adjournment. But it appears from the reply of Mr. Lefaivre that "by unanimous decision of December 19, after formal deliberation, the Commission ordered that the Le More matter should be submitted to it on the 28th instant."

This decision to which the American commissioner adhered, as well as the Brazilian arbitrator, evidently changes the state of the question. As to the doubts which existed, and of which the claimant would have benefited, it adds a presumption and a kind of acquired right, the benefit of which it seems to me impossible to refuse him. Besides, it is difficult to see what right one of the two Governments has to interfere with the view of postponing the execution of a decision of the Commission, which alone has quality to decide as to the mode of its proceedings.

In this state of things it has appeared to me to be desirable to allow the procedure to pursue its course, the commission remaining judge of the question whether the

claim should be set aside by virtue of Article II of the treaty of 1880 which for it is law.

I shall be obliged if you will have the goodness to inform Mr. Frelinghuysen with reference to the motives which it seems to me would not allow me to conform to his wishes.

SIR: Referring to recent telegrams in the cases of Le More & Co., before the French-American Claims Commission, as the negotiations have all taken place here, I send you a short statement of the case, and inclose a copy of my note of the 27th December last to Mr. Denaut, the chargé d'affaires of France at this capital, which will put you in possession of the more important facts.

The case of Taylor against the French Republic was based upon the seizure of a cargo owned by the claimant, an American citizen, shipped upon a German vessel, seized by a French man-of-war, condemed by a French prize court of original jurisdiction, the condemnation being affirmed upon appeal.

The second article of the treaty constitution the French-American Claims Commission excludes from its jurisdiction all claims which "have been already diplomatically, judicially, or otherwise, by competent authorities, heretofore disposed of by either Government."

Mr. Outrey, then representing the French Republic in this country, demanded the withdrawal of the case of Taylor on the ground that it had been judicially disposed of by competent authority.

This contention was admitted by Mr. Blaine, and after some delay and further correspondence the case was witdrawn by the agent on the part of the United States before the Commission, acting upon instructions received from the Department.

Mr. Outrey further agreed for his Government that the same principle should apply to any cases on the part of French citizens against the United States, and pursuant to that agreement several cases have been withdrawn.

The case of G. A. Le More & Co., No. 211, however, is still pending, although the United States request its withdrawal as having been judicially disposed of by competent authority. There has been some conversation on the subject between the French minister, the Secretary and Assistant Secretary of State, and upon the departure of the former upon his leave of absence it was understood, while not expressly agreed, that the case should remain in statu quo until he should have communicated, upon his return, the views of his Government upon the propositions advanced by us. Prior to his return, however, the French agent, acting through the counsel of that Republic, pressed the case to trial, and this notwithstanding the fact that he is aware of the contention of this Government, and that there are other cases pending before the Commission ready to be disposed of, so that no delay need occur. The Commission

not having before it any notice that the two Governments agreed to suspend action in the case, naturally proceeded with it and directed that it be set down for a hearing on the 28th ultimo. Thereupon you were requested by telegraph to ask for a delay until the return of Mr. Roustan, who was expected to arrive in Washington within a few days, and who is thoroughly familiar with the case.

I am now in receipt of a note addressed to you by Mr. Ferry, dated the 27th December, in answer to your note based upon my telegram, in which he says that the Commission having decided to proceed with the

case

This decision evidently changes the state of the question; to the doubts which existed and of which the claimant should have the advantage it adds a presumption, and, as it were, a kind of acquired right of which it does not seem possible to take from him the benefit. On the other hand, it is not apparent by which title one of the two Governments can intervene to cause the postponement of a decision of the Commission, which alone has the power to fix the order of its work. Under these circumstances it appeared to me advisable to allow the proceeding to follow its own course, the Commission remaining the judge of the questions whether the claim of Mr. Le More should be thrown out because of the provisions of Article II of the treaty of 1880, which is the law for it.

This is so entire a change from the position taken by the Government of the Republic of France in the case of Taylor that I cannot but believe that Mr. Ferry is acting under a misapprehension of the facts of the case. In the first place, this Government does not contend that alone it has the right to direct the Commission as to its work, or to demand the suspension of action in a particular case; but it did ask the Government of France to join with it in such a request exactly as the Government of France asked this Government to consent to a suspension of proceedings in the case of Taylor and in the case of Chourreau while diplomatic negotiations were pending, to which request this Government promptly acceded. Nor can I admit that the action of the Commission in proceeding with the consideration of the case submitted to them by the agent of one Government in the absence of any agreement between the two Governments for the suspension of the claim raises any presumption or acts in any way in favor of the claimant. The Commission by that act simply says that it finds a certain case upon its calendar and directs its trial.

The position of Mr. Ferry that the Commission should remain the judge as to its jurisdiction over this case under Article II is directly opposed to the contention of Mr. Outrey, to which the Government assented, and pursuant to which the case of Taylor was withdrawn as stated in his note of November 18, 1881:

In investing the Commission with absolute powers, and in according to its decisions a character of finality from which there is no appeal, the two Governments intended that these powers should be exercised only within the rigorous limits fixed by them, and they have never dreamed of authorizing the commissioners to enlarge their sphere of action by leaving the interpretation of the clauses of the treaty to them. And again:

Now, during the negotiating of the convention of 1880, it was well understood that neither of the contracting parties would consent to any revision of decision pronounced within its territory by competent authority in any form whatever. In order to meet such a case, Article II formally and explicitly provides that the Commission shall not decide any claim that either Government has already caused to be settled either diplomatically, judicially, or otherwise by competent authority.

The facts of the Le More case, as stated in the inclosed note to Mr. Denaut, show that it has been judicially decided by the district, circuit, and Supreme Courts of the United States, in which latter tribunal, after the final decision, a motion for a rehearing was denied.