In support of the demurrer the counsel for the United States contended that the authority of the Commission in the matter of jurisdiction was limited to claims by citizens of France, and that the limitation had reference to the beneficiaries, and not necessarily to the party by whom the claim might be presented. It was admitted by him that it was not essential that the citizenship of Wiltz should be averred or proved, but that his right to prosecute the case of the persons whom he professed to represent depended upon their citizenship in France. It was claimed by the counsel for the United States that, inasmuch as the said Delreiu was not living the 15th day of January, 1880, when the treaty was ratified, the provisions of the treaty could have no effect upon him personally, nor upon any claim that he might then have had against the Government of the United States, except as far as such claim had descended, by operation of law, to his heirs or legatees, who were themselves at the date of the treaty citizens of France. It was further contended by the counsel for the United States that as to creditors, whether they were French or American citizens, they were alike incapable legally of appearing before the Commission as claimants. It was contended, aiso, that previous to the ratification of the treaty there was no claim on behalf of Delrien that could be enforced; that it was by and through the provisions of the treaty that the claim had a legal existence, and by the provisions of the treaty it could only be enforced by French citizens; and that if Delrien's surviving heirs were French citizens they would have the same standing before the Commission that Delrien himself would have had if living, but if his heirs were American citizens, or if, in the absence of heirs of blood, his property should descend by operation of law to the State of Louisiana, then, manifestly, the treaty could not give to his heirs or to the State of Louisiana a standing before the Commission, as they were not citizens of France. It was contended that at the time of Delrien's death no legal obligation was subsisting on the part of the United States to indemnify Delrien, and that when the treaty was made and the obligation assumed it was assumed to and in the interest of French citizens alone, and neither American heirs of Delrien nor the State of Louisiana secured by the treaty any rights whatsoever.

In support of the positions taken by the counsel for the United States, the attention of the Commission was called to the proceedings of the British and American Mixed Commission in the case of William G. Ford, administrator. In that case the Commission allowed the claim as and for the interest of Mary G. Barker, who was a legatee under the will of G. J. Robinson, the decedent and original claimant, and rejected the claim of two American citizens, who were also legatees under the same will. The Commission were also referred to the claim of Mrs. Grayson, being No. 291, before the same Commission. Mrs. Grayson claimed as administratrix of the estate of John J. Cowley, her former husband, and, when living, a British subject. After the death of Cowley she intermarried with one Grayson, an American citizen. The Commission disallowed the claim of Mrs. Grayson so far as it was prosecuted in her own right, although she, as well as Cowley, were British subjects by birth. The special counsel on the part of the claimant submitted three propositions in support of the memorial:

1. That Leon R. Delrien was the original owner of the property described.

2. That he was a French citizen at the time his property and person were seized.

3. That the acts were committed within the jurisdiction of the United States by the military authorities of the United States and during the period prescribed in the treaty.

The Commission was referred to the first rule of the Commission, in which it is said:

If a claimant be dead, his execntor or administrator or the legal representative of the estate must appear, unless it is shown that there are no creditors, and that the estate is settled.

The counsel maintained that at the moment the claim arose it partook of a twofold character; it was a claim due to a French citizen, and also a wrong done which the French Government was bound to see corrected, and in that light it became national in its character; that the death of the claimant had but one effect, to change the personnel of the action; but it neither lessened the obligations of the United States to remedy the wrong inflicted upon a French citizen, nor did it change the relations and duties of the French Government. The point was also made by the counsel for the claimant that the Commission had no right to consider the disposition of any award that might be made; that the distribution of an allowance must be left with the Government prosecuting the claim and the courts appointed or established for that purpose. The attention of the Commission was directed to the case of James B. Halley v. The United States, No. 205, before the Mixed English and American Commission, and eleven other cases, which involved the questions presented in the demurrer in this case. The counsel cited the following passage from the opinion of the commissioners in the case of Halley:

When the claim is presented by an administrator in respect of injury to the property of an intestate, who, while living, was a British subject, and the beneficiaries are British as well as American subjects, the claim may be presented for their benefit, and the nationality of the administrator does not affect the question.

It was contended by the counsel for the claimant that "the name of the claimant, or of the administrator or representative, is used to define the claim and adjust the amount to be paid for the wrongs committed against his person or property, but for all other purposes the claim is national, is presented by the Government on behalf of the claimant, and the sums awarded, if any, are to be paid to it; hence it can make no difference who prosecutes the claim of a French citizen-one who was French at the time the wrong was done within the terms of the treaty.

At the hearing, the counsel for the French Government contended that the day the damage was done the claim arose; that it was then a chose in action, although it could not be enforced; that the right existed, that it was absolute and complete, although it could not be carried into effect. Quoting the first article of the treaty, the counsel maintained that the remedy provided for was in its nature retroactive. The treaty does not refer to "claims that shall arise," but it speaks of "claims that have arisen from such a day to such a day. Therefore, by action of the treaty, the claims to day are presumed to have been perfect as early as the day the damage was suffered; the chose in action is to-day presumed to have been complete and perfect the day the injury was suffered." The counsel for the French Government maintained the following positions:

First, the injuries are suffered by a Frenchman; second, they are suffered at a certain date; third, the right to recover is a right solemnly proclaimed by both parties. On the other hand, the jurisdiction of this Commission is perfect, and the retroaction of the effect of that jurisdiction is plainly set forth in the convention of January 15,

1880.

The counsel for France also referred to the case of Phelps vs. McDonald. McDonald, a British subject, had been engaged in business in the

United States, and was a bankrupt under the laws of the United States. He was the owner of a claim against the Government of the United States which he had obtained by purchase from his assignee. An award was made to McDonald, and the Supreme Court held that the moneys belonged to his creditors. Several other cases were cited by the counsel for the Republic of France, and, among others, Agnes Crook McLeane, administratrix (Alabama Claims Court, p. 112 and follow) Charles M. Smith and Agnes Pollock, (British and American Claims Commission, Howard's Report, p. 15 and follow), also Elizabeth Sherman's case (p. 69 of same report), and in conclusion he stated as a matter of fact, awards made by international commissions are paid by one Government to another.

The majority of the Commission, Baron de Arinos and Hon. A. O. Aldis, made a decision in the case as follows:

WASHINGTON, January 19, 1882.

Leon R. Delrieu, a French citizen, died at New Orleans April 15, 1879. He was the original owner of this claim. He was a French citizen both at the time he suffered the loss and at the time he died.

Pierre S. Wiltz, of New Orleans, files this claim as the duly appointed administrator of Delrien. He states in the memorial that the present beneficial owners of the claim are the creditors and heirs of said Delrieu, "who are legally represented by your memorialist."

He does not state that the creditors and heirs of Delrien, or any of them, are French citizens.

The counsel of the United States demurs on the ground "that it does not appear from the memorial that the alleged beneficial owners of the claim are, or ever were, citizens of France." He claims that this Commission has no jurisdiction of a claim unless at least some one of the beneficial owners is a French citizen. He admits that the nationality of the administrator is of no account, for he has no beneficial interest and merely represents the real claimants.

The counsel of France claims that as Delrieu was a French citizen at the time he suffered the loss, and so continued up to the time of his death, the administrator of his estate has the right to present and recover for the claim, although none of his creditors and heirs are French citizens.

This is a question of jurisdiction.

In deciding it we must be governed by the language and meaning of the convention. We think it was not enough that the deceased was a French citizen when he suffered the loss and when he died, and that his administrator presents the claim. It should further appear that the real and beneficial claimants, who will ultimately receive the amount that may be allowed, are French citizens, and they must appear and present their claims. This appears to us to be the plain meaning of the first and second articles of the convention. They do not, in our judgment, admit of any other construction.

We do not think it necessary, at this time, to make any further statement of the reasons for this decision.

The demurrer is therefore sustained, and the claim is disallowed.

Mr. de Geofroy, the commissioner for the French Republic, filed an opinion dissenting from the decision of the Commission, which is printed in the appendix and marked "Exhibit E."

The opinion of Mr. Commissioner Aldis is also printed in the appendix, and marked "Exhibit F.”

Subsequently to these proceedings the counsel for the French Republic entered a motion to suspend so much of the decision rendered as disallowed the claim, and that the memoralist have twenty days to show the interests of French citizens. That motion was granted.

The said Wiltz submitted what was called a "reply to the demurrer," in which he set forth that certain persons, who were citizens of France, were the heirs and beneficial owners of the claim described in his memorial. The counsel for the United States objected to the further consideration of the case: First, upon the ground that the Commission

having decided that said Wiltz had no standing before the Commission upon his memorial, inasmuch, as the facts set forth therein were not sufficient to give the Commission jurisdiction, neither he, nor the counsel for the French Republic in his behalf, could make any motion which involved the validity of the memorial; and, secondly, the counsel for the United States objected to the paper upon the ground that it did not authorize the said Wiltz to act for the persons who in the paper were alleged to be the heirs of said Delrieu, and the beneficiaries of the claim, if any allowance should be made. When the motion to suspend the decision was made, January 19, 1882, the time within which, under the treaty, memorials could be filed had passed; and it was contended by the counsel for the United States that it was not competent for the Commission to permit any amendment of, or to allow any motion in reference to, the memorial filed originally by Wiltz, as any motion which operated to revive that memorial and to give Wiltz a standing before the Commission would be equivalent to the allowance of a new me morial.

The counsel for the French Republic claimed that the paper filed the 28th of January, 1882, was a compliance with the decision of the Commission, and that it was not an amendment to the memorial. He contended that the two conditions required by the Convention had been complied with, namely, that the claim was a French claim in its inception, and that it was then a French claim, as it was owned by French parties, it having "descended from Delrieu, whose heirs now appear before the Commission." The counsel for the French Republic also relied upon the stipulation between the counsel for the two Governments, in which it was agreed that, upon the reassembling of the Commission in the autumn of 1881, the counsel for the two Governments would be prepared to submit briefs upon demurrer in cases that represented classes of claims and in cases deemed important by the counsel for either Government.

The position taken by the counsel for the United States was sustained by a majority of the Commission in a decision filed January 31, 1882, in these words:

Before the French and American Claims Commission, upon the motion of the counsel for France to suspend the order disallowing the claim and permit the "reply to the demurrer” of the administrator, stating that there are two heirs of the deceased Delrien living in France who are French citizens, and for whom he wishes to appear, to be filed, and for the administrator to appear for them

It is ordered, that the motion be denied, and the amendment, or "reply to the demurrer," by which the administrator appears for the two heirs, instead of their appearing for themselves, is rejected, and the decision of the Commission that the claim of the administrator be disallowed is confirmed.

The proceedings in the case of Wiltz, and the decision of the majority of the Commission, justify the following conclusion:

1. That in case of the death of a claimant it was competent for his legal representative to appear and prosecute the claim, and that without reference to the nationality of the representative.

2. In order that jurisdiction should be taken by the Commission, it was necessary that the memorial should set forth as facts, (1) that the decedent was, at the time the loss occurred or the injury was sustained, a citizen of the country prosecuting the claim; (2) that the heirs or legatees who would receive the benefits of any award that might be made were also citizens of the same country at the time the treaty was ratified, and (3) that the memorialist was duly authorized to appear in behalf of the beneficiaries.

HENRIETTE LEVY v. THE UNITED STATES, No. 253.

The memorial of Henriette Levy against the United States, No. 253, sets forth that she was the widow of Jacob Levy, late of Strasburg, Germany, who died at that city the 1st day of March, 1871; that the said Jacob Levy was, during his life, a member of the firm of Isaac Levy & Co., doing business at Alexander, Rapides Parish, Louisiana, from 1861 to 1865; that the said firm was composed of said Jacob Levy, deceased, Isaac Levy, deceased, Benjamin Weil, deceased, and Marx Levy, then a resident of the city of New Orleans; that each of said copartners was interested in the affairs and assets of said firm in the proportion of one undivided fourth part; that in the month of April, 1863, the said firm of Isaac Levy & Co. were the lawful owners of 253 bales of cotton; that said cotton was taken possession of by the military authorities of the United States by one F. G. Pope, captain of Company D, Forty-first Regiment Massachusetts Volunteers; that the said Jacob Levy, deceased, acquired by purchase, the 16th day of March, 1866, from two of his said copartners-Isaac Lévy, deceased, and Benjamin Weil-an additional fourth part interest in the property and assets of the said firm of Isaac Levy & Co.; that Jacob Levy and Isaac Levy, deceased, were native-born citizens of France, and not naturalized in the United States, and that the said Benjamin Weil and Marx Levy were citizens of the United States. Mrs. Levy made claim, as widow of said Jacob Levy, in her own right, and also as tutrix of her six minor children.

Upon this statement of facts the counsel for the United States filed a demurrer to the memorial on the following grounds:

1. As to the whole case: That it appears that the claimant and her children, about the year 1871, became citizens or subjects of Germany, and have ever since remained and are now such citizens or subjects, and have not since that year been citizens of the Republic of France, and that this claim is therefore not presented by or on behalf of the citizens of that Republic.

2. As to the interest alleged to have been assigned by Benjamin Weil: That as it appears that said Weil was at the time of the acts complained of a citizen of the United States, the claim is not one arising out of acts committed against the persons or property of citizens of France.

In support of so much of the demurrer as related to the claim derived from Benjamin Weil by assignment, the counsel for the United States contended that inasmuch as the said Weil could not have maintained a claim before the Commission, so neither could Jacob Levy, his assignee, if living, have maintained a claim, and, consequently, that the memorialist, Henriette Levy, was under a like disability. (See case of Perché.)

As to the claim of Jacob Levy, as represented by Henriette Levy, the counsel for the United States maintained that by the treaty of peace of the 10th of May, 1871, between the Republic of France and the Empire of Germany, the province of Alsace, in which the town of Strasburg is situated, was ceded to Germany, with all the inhabitants resident therein, except such as might avail themselves of the privilege guaranteed by Article II of the treaty, in which it was provided that all French subjects born upon the ceded territory and actually domiciled therein, who desired to preserve their French nationality, should have the opportunity until the 1st day of October, 1872, to make a declaration before competent authority of their purpose to change their domicile to the territory of France and become citizens of that country. It appearing from the memorial that the claimant was born in Alsace, and