hardly pertinent to the discussion, as the undersigned understands it. Unless qualified, these expressions are misleading. The confusion in which the counsel has become involved is the result of failure to recog nize the distinction which prevails universally, under international law and treaty stipulations, between the civil and political rights of an individual. The Commission are, of course, familiar with the above distinction; which, as it seems to the undersigned, it is important to bear in mind when the claim of the memorialist is under consideration. In the case at bar, under view of the counsel for the French Republic, the discussion involves only a consideration of certain undoubted civil rights of an individual who, at a particular period of time, being then a citizen of France, sustains injuries to his person and property of a character of which this Commission has cognizance. And in the controversy at bar, as it seems to the undersigned, the test of present political rights, or actual national character of the memorialist, should not be controlling or conclusive.

Brief of counsel for the United States in reply to the counsel for the Republic of France on demurrer interposed by the United States.

1. AS TO THE JURISDICTION.

It is respectively submitted that the counsel for the French Republic errs when he says (p. 2) that "if it be established that the demand of the memorialist grew out of and is included in a claim which is described in the treaty, then there can be no doubt but that the Commission has jurisdiction, and should consider the claim on its merits."

In other words, if the Commission finds that it has jurisdiction of the subject-matter, it has jurisdiction of the case. This is an error. Jurisdiction is made up of two essential qualities, (1) jurisdiction of the person, and (2) jurisdiction of the case, or, as the counsel for the French Republic terms it in the paragraph quoted, jurisdiction of the claim. In all personal actions or causes involving personal rights, a court cannot proceed one step unless it has jurisdiction of the person, and then, having jurisdiction of the person, if it have also jurisdiction of the case or claim, it may proceed to adjudge the rights of the party. In the case at bar, in a qualified sense, the Commission has jurisdiction of the claim; that is to say, descriptively, the claim is of such a sort that if the Commission had jurisdiction of the person they then might determine the nature and extent of the claim. But, inasmuch as the court has not jurisdiction of the person-and it is not even asserted in the brief of the counsel for the French Republic that it has jurisdiction of the person except as an inference from the circumstance that it has, as is alleged, jurisdiction of the claim-no action whatever can be had.

The counsel for the French Government assumes that having jurisdiction of the claim, jurisdiction of the person may be inferred, while, as matter of law, no inference as to jurisdiction can be drawn. The law must give jurisdiction, and none can be assumed.

In the case cited in the 6 of Peters, p. 709, the quotation would have been satisfactory as a conclusion if the premises stated by the court, and on which the court acted, had been quoted also.

The court says:

A reference to the petition presented by the claimants in this case shows that it contains a full statement of all the matters required by the first section of the Missouri law, excepting the condition of residence, which is not required by the act of 1828.

It is thus seen that in the case then at bar all the requirements of law essential to jurisdiction were found, and the court might then well say, what has been quoted by the counsel for the French Republic

Jurisdiction is the power to hear and determine a cause., It is coram judice whenever a case is presented which brings this power into action.

So in the case of Rhode Island against Massachusetts (12 Peters, p. 718) the enlargement of the quotation would have altered its value essentially.

The court says:

However late this objection [to the jurisdiction] has been made or may be made in any case in an inferior or appellate court of the United States, it must be considered and decided before any court can move one further step in the cause, as any movement is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject-matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question is, whether on the case before a court their action is judicial or extrajudicial, with or without the authority of law, to render a judgment or decree upon the rights of the litigant parties.

Here it is assumed that the first essential requisite in the court was to find that it had jurisdiction of the parties, and that is the very question at issue in the case now at bar, whether the Commission has jurisdiction of the claimant so that it can take notice of his effort to enforce his claim.

The Supreme Court distinctly say:

This is the line which denotes jurisdiction, and its exercise in cases in personam. Where there are adverse parties the court must have power over the subject-matter and the parties. (2 Howard, 338.)

The Supreme Court, in De Groot v. The United States, repeated this doctrine, as follows:

If, therefore, the Court of Claims has the right to entertain jurisdiction of cases, it is only by virtue of acts of Congress granting such jurisdiction, and it is limited precisely to such cases, both in regard to parties and to the cause of action, as Congress has prescribed. (7 Court of Claims, p. 9.)

So this Commission has the right to entertain jurisdiction of cases only by virtue of the treaty, and such jurisdiction is limited "precisely to such cases, both in regard to parties and to the cause of action," as France and the United States have prescribed.

The counsel proceeds on the assumption that, if the demand be -founded upon a claim which is described in the treaty, then this Commission has jurisdiction, no matter of what country the claimant is a citizen or subject. (Page 2 of the brief.) That is, in effect, he contends that a claim once valid is always valid, no matter who may now be the beneficial owner. Pushed to its logical result, this reasoning will, if adopted by the Commission, force it to make awards in favor of native-born citizens of the United States, or German, Spanish, or Italian subjects, in any case where, by assignment or otherwise, they have become the owners of claims arising from injuries to French citizens of the character described in the treaty. The undersigned cannot believe that it was the intention either of France or the United States so to extend the jurisdiction of this Commission. In fact, the counsel himself does not adhere to this point, for in the next paragraph he says that the immediate purpose of the treaty "was to give relief and to provide indemnity for a large class of sufferers, citizens of the respective Governments." That is, the United States and France intended to relieve citizens of France for injuries sustained at the hands of the United States; and it cannot be supposed that the latter Government intended, through

a treaty with a foreign power, to settle questions with its own citizens, or that France assumed to interfere between the Government and the citizens of the United States.

It nowhere appears in the treaty that France seeks to recover from the United States indemnity for losses sustained by France as a Government; on the contrary, it does clearly appear that France seeks by this treaty to indemnify citizens for losses sustained by citizens, not to recover for the State compensation for losses sustained by the State through its citizens. This distinction disposes of the point that France negotiated for the claim and not for the claimant.

A distinction similar to this was made in the treaty of May 8, 1871, between the United States and Great Britain, which may be cited in illustration. In Article I, providing for a settlement of the "Alabama claims," the phraseology is as follows:

#

# #

generically known

Now in order to remove and adjust all complaints and claims on the part of the Un ted States, and to provide for the speedy settlement of such claims, the high contracting parties agree that all the said claims, as the Alabama claims, shall be referred to a tribunal of arbitration; &c. The tribunal awarded to the United States a gross sum, and did not examine the individual claims nor endeavor to ascertain the individual claimants. This was a claim by a State for loss sustained through its citizens, and was so recognized by the court which afterwards distributed the sum awarded, when they said "the reclamation made upon Great Britain was made by our Government in the capacity of sovereign, and not as a mere representative of private interests, and the indemnity received has been paid to the United States as a Government." (Robeson, Sec'y, v. The United States, Davis' Report, p. 121.)

On the other hand, Article XII of the treaty with Great Britain reads as follows:

All claims on the part of corporations, companies, or private individuals, subjects of Her Britannic Majesty, shall be referred to three commissioners, &c.

*

This article is almost identical with Article I of the treaty organizing this Commission. Under this Article XII was organized the British and American Mixed Claims Commission, the history of which is familiar. That Commission was organized for the benefit of claimants, not of the Government, as was the tribunal of Geneva; that Commission investigated individual claims, sought the beneficial owner, and ascertained his citizenship, and in effect held that not only must a claim be valid and subject to their jurisdiction, but also that the claimant must be one for whom Great Britain had power to negotiate, and whom Great Britain had a right to protect. The distinction now sought to be defined is drawn even more clearly in the treaty with France, for while the articles conferring jurisdiction on each Commission are practically identical in language, the treaty with France provides, in addition, that this Commission shall decide only claims presented by citizens, while the British Commission was to decide (Article XIII) "claims presented to them"; but by whom was not stated. The proclamation of the President of the United States and the preamble of the treaty with France show clearly that the intention of France and the United States was to obtain redress for "citizens."

The undersigned searched carefully for any case presenting the point now under discussion which had been ruled upon by the British-American Commission, but without success, and he confidently believes that the agent for Great Britain declined to present such claims, thinking them inadmissible and not within the jurisdiction of that Commission.

H. Ex. 235——4

The reasons for his belief are as follows: After a careful examination of the reports of Mr. Hale and Mr. Howard, he has failed to find any such case reported or alluded to as having been acted upon, although the question of citizenship acquired by domicile without naturalization was fully and minutely argued. The counsel for the United States before that Commission said in one of his briefs, and in illustration simply: Take the case of a British subject at the time of sustaining the alleged injury, and who, before the presentation of his claim, had become naturalized as an American citizen. It cannot be doubted that he could not be admitted to a standing before the Commission. Though he was a British subject at the time of the injury, he is no longer such, and the question of his standing before the Commission can only be determined by his national character at the time of presenting his claim. Such cases have been numerous, without doubt, but no such claim has been presented to the Commission by Her Majesty's agent. (Howard's Report, p. 326.)

All the arguments of counsel were made upon the assumption that only subjects of Great Britain could make claims upon the United States under the treaty. The counsel for Great Britain says:

It [the treaty] gives jurisdiction to all claims on the part of subjects of Her Britannic Majesty upon the Government of the United States, and reciprocally of all claims of citizens of the United States upon the Government of Her Britannic Majesty. (Howard's Report, p. 306.)

Again:

This treaty does not pretend to do more than limit the jurisdiction by the personal status of the claimants and the limitation of time, &c. (P 306.) A naturalized citizen of the United States is as to all other countries as much the subject of its protection, and as truly a citizen of the United States, as if born upon its soil. In determining who are within the protection of this treaty as citizens of the United States, the agent of the United States would hardly maintain that persons coming within the provisions of such municipal statute are not within its protection. (P. 314.)

The understanding of the British Government on this point was not less clear than that of their counsel.

In their notifications to claimants, No. 1, they said:

Notice is hereby given that all persons subjects of Her Majesty who may have claims of the nature described in the said articles, &c. (Howard's Report, p. 255.)

The other notifications were to the same effect.

has been appointed

Notice is hereby given that Henry Howard, esq., agent for Her Majesty's Government, and is authorized to receive at Washington any claims of persons, subjects of Her Majesty, coming within the provisions of the aforesaid twelfth and five next following articles of the treaty of Washington; and accordingly all persons being subjects of Her Majesty who may have claims of the nature described are required, &c. (Notification No. 2, Howard's Report, p. 256.) Notice is hereby given that the undersigned is authorized to receive any claims on the part of corporations, companies, or private individuals subjects of Her Britannic Majesty, arising out of acts committed against the persons or property of subjects of Her Britannic Majesty during the periods between, &c., and accordingly all persons being subjects of Her Britannic Majesty who may have claims, &c. (Notification No. 3, Howard's Report, pp. 256–71.)

*

And when the Commission decided that Barclay was a British subject they said:

The first thing to be decided in this case is whether the commissioners have jurisdiction, which depends upon whether the claimant is within the meaning of the treaty a British subject. (Howard's Report, p. 9.)

The following cases were disposed of as follows:

Ford, administrator, No. 328. Award made for part of the sum claimed to the British beneficiaries only.

Thomas S. Maben, administrator, No. 191. Disallowed, because no beneficiaries were proved.

William Rose, No. 303. Because a citizen of the United States after the loss, claim withdrawn by Her Britannic Majesty's agent.

Garrett, administratrix, No. 309. Dismissed for want of jurisdiction, claimant having married a citizen of the United States, and no British beneficiaries having been proved.

So the counsel for the United States, the Government and counsel of Great Britain, and the Commission assumed that to be valid a claim against the United States must be presented by a subject of Great Britain.

2. AS TO THE CONSTRUCTION OF THE TREATY.

Counsel for the Republic of France claims that international treaties are to be construed equitably, and not technically. This is all very well, and as laid down by Phillimore in the reference cited on page 3, the rule is to be observed whenever there is an ambiguity in the language employed. But in the case at bar there is no ambiguity of language. The jurisdiction of the Commission, by the terms of the treaty, extends to citizens of France having claims against the United States, and to citizens of the United States having claims against France. The court cannot take jurisdiction for the reason that, in the opinion of the court, it would be equitable for it to have jurisdiction; nor for the reason that if it had jurisdiction it could do equity to or between the parties. It must first find its jurisdiction, and then, if it have power, it may do equity to or between the parties over whom it has such juris

diction.

The language of the treaty should not be strained in order to obtain jurisdiction.

In all cases, whether with a superior or inferior court, a purely statutory authority must be pursued, and it cannot be extended by impli cation. (1 Smith, Leading Cases, 6 Am. ed., 1024, 1011, and cases cited.) When implications are admitted beyond the limits of the most rigid necessity, it is easy to drift unconsciously away from the meaning of the law giving power altogether and establish what was never intended or even thought of. Equitable constructions, according to what inay be deemed the spirit of a statute, should always be resorted to with caution. The power of extending the meaning of a statute beyond its words, and deciding by the equity and not the language, approaches so near the power of legislation that the wise judiciary will exercise it with. reluctance, and only in extraordinary cases. (Monson v. Chester, 22 Pick., 387.)

The proposition of the counsel of the French Republic is that this Commission should take jurisdiction because in its opinion it would be equitable for it to have jurisdiction.

But the question before the Commission upon the issue at bar is not whether this claimant equitably ought to receive compensation for his losses, but whether by the terms of the treaty he is made a party-claimant, so that he can prosecute his claim before the Commission; and until the Commission finds that it has, by virtue of the treaty, jurisdiction, both of the person claiming and of the claim, it cannot proceed one step towards doing what may seem to be equitable as between the claimant and the United States.

From the treaty alone can we ascertain the jurisdiction.

For the authority of this court [Court of Commissioners of Alabama Claims] to award any sum we must look to the law under which we act. (Davis' Report, p. 62.) We look into the act of Congress and, unless the case of these claimants is embraced within its provisions, we cannot admit their claim, even if we knew the value of this cargo was paid for by Great Britain, and was now in the hands of the United States. (Davis' Report, p. 108.)