equitably if not legally bound to respond in proper damages if the alleged contract was entered into by the city. They are as follows: On June 3, 1898, Messrs. Merryweather & Sons addressed the following communication to the Hon. John Hay, at that time ambassador of the United States at London (see doc. 10): The Hon. JOHN HAY, 5 Carlton House Terrace, S. W. LONDON, 3d June, 1898. YOUR EXCELLENCY: In the month of February last we received an order from the chief of the fire brigade at Manila, Philippine Islands, for some steam fire engines and fire-brigade apparatus, to the value of a considerable sum. This apparatus was in the course of construction on the outbreak of the war, but none of it was finished in time to be dispatched before hostilities commenced. All arrangements, however, were made for payment, on dispatch, through a firm of bankers in London, and the whole of the apparatus was put in hand by us. We have lately noticed in some of the papers published in the United States paragraphs to the effect that Mr. Williams, the consul for the United States at Manila, intends to use his best efforts to induce the city to equip its fire department wholly from the United States, and it seems to us that when Manila is occupied by the United States forces, influence may be brought to bear to induce the Spanish officials in Manila to endeavor to countermand the order in question. As the withdrawal of the order, now that the apparatus is practically completed, would involve a serious loss to us and as we can not believe that the Government of the United States would desire that the operations in Manila should interfere with private business, especially with an English house, we venture to ask whether it is possible for you to represent to the authorities at home the desirableness of requesting their officers in the Philippines not to take any steps to induce the officials in command of the fire brigade at Manila to alter the arrangements already made with us for the supply of the material required. We are quite sure that having regard to the universal desire in this country for the success of the American arms in the present war your Government does not wish that success to result in the transference from English houses of business already in course of transaction with any of the Spanish colonies. Soliciting your kind offices in the matter, which will be greatly appreciated, MERRYWEATHER & SONS, Lt. The American ambassador forwarded said communication to the State Department, and the Secretary of State on June 21, 1898, referred it to the War Department with the following comment: I have the honor to submit the letter of Messrs. Merryweather & Sons for your consideration, to the end that such instructions on the subject as may be deemed proper may be sent to General Merritt. (See doc.9.) At this time (June, 1898) the Insular Division of the War Department was not in existence. The letter was sent to the office of the Adjutant-General. The United States was then engaged in actual hostilities in conducting the war with Spain. Since the matter related, in a measure, to the conduct of the troops in the field, the letter was advanced to the office of the Major-General Commanding, where it received the following indorsement: The Major-General Commanding recommends favorable consideration of the request of Messrs. Merryweather & Sons. (2d Ind. doc. 9. Thereafter the document was advanced to the office of the Secretary of War, where it was indorsed on July 11, 1898, as follows: Approved and respectfully returned to the Adjutant-General to transmit a copy of these papers to Major-General Merritt, commanding the Eighth Army Corps, for his information and guidance. (4th Ind. doc. 9.) A copy of the papers and indorsements was sent to Major-General Merritt. (5th Ind. doc. 9.) Thereafter and on July 25, 1898, the following communication was sent from the American embassy in London (see doc. 7): SIRS: With reference to your letter of the 3d ultimo to the ambassador requesting that your contract with the authorities of the fire department at Manila be not interfered with by the American officials when they occupy that city, I am directed by His Excellency to acquaint you that he has received a communication from the Secretary of State informing him that your request has been favorably considered by the Secretary of War, and that the papers in the case will be transferred to Major-General Merritt commanding the Department of the Pacific for his information and guidance. HENRY WHITE. Messrs. MERRYWEATHER & Co., Greenwich Road, London. The complainants herein are certainly not amenable to a charge of lack of diligence in asserting or vigilance in protecting their claims, since they appear at the American embassy in London on June 3, 1898, at which time the smoke of the burning Spanish vessels in Manila Bay had hardly disappeared. The complainants now insist that they were induced to proceed with the construction of said fire apparatus by said correspondence with the American ambassador. Therefore the attention of the Secretary is especially directed thereto. The attention of the Secretary is further directed to the fact that few cities are completely and adequately supplied with fire apparatus. If the apparatus involved herein is suitable and the city has a present or prospective need therefor, a speedy and happy solution of the present difficulty would be to accept the apparatus and pay a reasonable price therefor. Opposed to this, however, is the fact that the municipal officials under the American administration, "upon investigation, reached the conclusion that the engines and apparatus ordered from this London firm were in no sense adapted to the needs of the city of Manila." (See Doc. 19.) Pursuant to the views expressed in the foregoing report, the Secretary of War responded to the inquiry from the State Department as follows: DECEMBER 6, 1900. SIR: I have the honor to further acknowledge the receipt of your letters transmitting copies of the several communications received by the State Department from the British embassy in this capital, relative to the claim for damages alleged to have been occasioned Messrs. Merryweather & Sons, London, England, by reason of the refusal of the present municipal authorities of Manila to carry out the provisions of an alleged contract for supplying certain fire apparatus to said city, and requesting the views of this Department. In reply thereto I have the honor to state as follows: From the correspondence submitted it is difficult to determine whether Messrs. Merryweather & Sons elect to urge said claim against the municipality of Manila, the military government of the Philippines, or the Federal Government of the United States. If presented to either of said governments the claim must rely on an alleged contract with the city of Manila, the creation and existence of which is denied by the present municipal authorities of Manila, who assert that said contract was not entered into by the city, but if a contract existed it was between Messrs. Merryweather & Sons and Messrs. Aldecoa & Co., a local Manila firm. As at present advised, I am of the opinion that if the existence of the alleged contract were established the alleged liability, if any exists, would attach to the municipality of Manila, and would not attach to the military government of the Philippines nor the Federal Government of the United States. The municipality of Manila is a municipal corporation, and, as such, may be sued in the courts. The controversy between Messrs. Merryweather & Sons and the city of Manila stands on the same footing as a like controversy between individuals. The questions involved are of a kind and character usually resolved by judicial proceedings. Therefore the parties secure an adequate remedy by applying to the courts. Ample provision has been made by the military government of the Philippines for the protection of the rights of Messrs. Merryweather & Sons under the alleged contract, by the continuance of the established laws under which the contract was made, if at all, and by the establishment of competent courts whose decree will be enforced by the executive department. Yours, very truly, The SECRETARY OF STATE. ELIHU ROOT, Secretary of War. This matter being again presented to the Secretary of War, the final action of the War Department thereon was as follows: MARCH 7, 1901. SIR: I have the honor to acknowledge the receipt of your letter of January 19, 1901, referring to the claim of Merryweather & Sons for damages occasioned by a refusal to accept certain fire apparatus under the terms of a certain contract with said Merryweather & Sons, alleged to have been entered into by the city of Manila, P. I., while that city was under Spanish sovereignty. I have already determined that since the local authorities deny the creation of the alleged contract, I will not arbitrarily order the payment of damages resulting froin an alleged violation of said disputed contract; and since the local authorities insist that the apparatus is not fitted for the needs of the city, I will not arbitrarily order the purchase thereof by the city; nor will I exercise judicial powers and hear and determine the disputed questions arising between Merryweather & Sons and the municipality since both parties are competent to sue and be sued in the courts of the Philippines. (See letter dated December 6, 1900.) Further consideration of this matter as relating to an existing or alleged liability of the municipality of Manila will not be attempted by this Department. Inclosed in your letter is a copy of a communication from Merryweather & Sons, dated January 8, 1901, wherein it is stated that application to the courts is not open to them, for the reason as set forth in said communication, "that the refusal to accept the fire apparatus contracted for was not made by the municipality of Manila, nor by Messrs. Aldecoa & Co., but by the United States military governor of the Philippine Islands." i In support of this declaration there is set forth a copy of the notice received by Merryweather & Sons, reciting that the provost-marshal-general is instructed by the military governor to inform Messrs. Merryweather & Sons "that the military governor of the city does not desire the fire apparatus. * * * The military occupation of the islands by the United States being accomplished, the authority to administer the affairs of civil government passed, under the laws of war, to the commander of the occupying force. To properly administer said affairs, said commander duly designated certain persons to perform the duties appertaining to certain offices, among others the offices of the municipality of Manila. These incumbents so installed in municipal offices were as fully authorized to act for the city and to bind the municipality thereby as were their predecessors. If the action of these municipal officers in this instance created a liability which would attach to the city under ordinary conditions, the liability attached under the extraordinary conditions then existing. (New Orleans v. Steamship Co., 20 Wall., 387.) Messrs. Merryweather & Sons, in their communication dated January 8, 1901, addressed to the ambassador of the United States, elect to consider the Federal Government of the United States as being the one liable to them for the alleged damages. This claim, therefore, becomes one for unliquidated damages resulting from an alleged interference by the military authorities of the United States with the performance of an alleged contract between said concern and the city of Manila. As the War Department was not a party to said alleged contract, the Secretary of War is without authority to settle and adjust the claim. Were a claim of this character presented to the War Department by a citizen of the United States, the extent of the service which the Secretary of War could perform for the claimant would be to transmit the claim and accompanying documents to Congress. In the instance under consideration the Secretary of War can not perform even this service, for the claimant is not a citizen of the United States, but is an alien. At the close of the civil war a large number of "alien claims" were presented to Congress. In 1874, upon the recommendation of the committee on alien claims, Congress assumed the position that the right of petition guaranteed by the Constitution enabled a citizen of the United States presenting a claim against this Government to Congress to demand the consideration of said claim as a right; that said privilege did not extend to aliens; and thereupon Congress declared that claims of aliens can not properly be examined by a committee of Congress, there being a department of this Government in which most questions of an international character may be considered-that which has charge of foreign affairs; that Congress can not safely and by piecemeal surrender the advantage which may result from diplomatic arrangements; that this has been the general policy of the Government, and Congress has not generally entertained the claims of aliens, and certainly should not unless on the request of the Secretary of State. (See Report No. 498, Committee on War Claims, first session Forty-third Congress, May 2, 1874.) Said report also contains the following letter: "DEPARTMENT OF STATE, 'Washington, April 22, 1874. "SIR: In reply to your telegram, stating that claims are presented by French citizens and other aliens through Congress to the Committee on War Claims, I have to remark that such presentation is entirely inconsistent with usage, which requires that aliens must address this Government only through the diplomatic representatives of their own governments. "This Department refuses to entertain applications or to receive claims from aliens except through a responsible presentation by the regularly accredited representative of their government. "I have also been under the impression that Congress refused to receive petitions or claims from aliens. Such, I am advised, was at one time the rule of the House of Representatives, and such is the rule at present in the Senate, I am informed. The propriety of the refusal to allow an alien to intrude his claims upon Congress can not be questioned. "I have the honor to be, sir, your obedient servant, "Hon. WM. LAWRENCE, "House of Representatives.” "HAMILTON FISH. I am unable to discover that the practice thus established has been abandoned. It therefore seems advisable for this Department to conform thereto. Very respectfully, The SECRETARY OF STATE. ELIHU ROOT, Secretary of War. THE CLAIM FOR $30,000 PRESENTED BY THE AMERICAN MAIL STEAMSHIP COMPANY FOR SERVICES RENDERED THE UNITED STATES IN TOWING THE UNITED STATES ARMY TRANSPORT M'PHERSON TO HAMPTON ROADS. [Submitted May 28, 1900.] SYNOPSIS. 1. The property of the United States Government, rescued from the perils of the sea while in the possession of officials of that Government, is not liable to a lien for salvage. 2. The United States having received the services and resulting benefits is liable for compensation, the measure of compensation being the fair and reasonable value of the service rendered under the conditions existing at the time and place of service, and can not include any reward in the nature of salvage. SIR: I have the honor to acknowledge the receipt of your request for a memorandum on the legal questions involved in the claim for $30,000 presented by the American Mail Steamship Company for services rendered the United States in towing the U. S. A. transport McPherson to Hampton Roads. In compliance with said request I have the further honor to report as follows: In order to avoid possible misunderstanding it is necessary to state the case as it presents itself to my mind upon examination of the papers submitted and the character of the claim therein presented. It appears that on February 19, 1900, the U. S. A. transport McPherson, homeward bound, while off the coast of North Carolina, became disabled by the breaking of the tail shaft in the stern tube. Thus disabled the ship could not be steered and was at the mercy of the wind and waves, and so continued until February 23, 1900, when it was sighted by S. S. Admiral Sampson, belonging to the American Mail Steamship Company, the claimant. The Sampson saw the signals of distress which the McPherson was flying and approached the latter vessel. At 11.03 a. m. the Sampson |