the liberality of the French courts on the subject of contraband left little occasion to decide the difficult questions which belonged to it. In regard to provisions and supplies generally, the board adopted the rule of the British admiralty and of our own supreme court; and held them illicit, only when they were destined to the military or naval use of an enemy of France, and when they were not the productions of the United States.

"2d. One class only formed an apparent exception to the last part of this rule. During the siege of Cadiz by the French in 1810, 1811 and 1812, numerous cargoes of provisions of American origin were despatched from the United States for traffic with the besieged. The fact of the siege was of course well known to those engaged in these voyages, and formed indeed their principal incentive. A number of vessels with this destination and object were taken by French boats within the limits of the outer harbour of Cadiz, or so immediately in its vicinity as to preclude the excuse that they were ignorant of the continuance of the siege. They were condemned on the ground that they had sailed with an intention of violating the siege, and had thus made themselves allies of the enemy. No evidence appears to have been offered to the French courts, nor was any presented before the board, to show that this was not their original intention or that it had been abandoned. Their apparent and uncontradicted purpose therefore was to minister to the necessities of the besieged and fortify their resistance.

"The law has long been settled in England and our own country, that a vessel sailing for a blockaded port with knowledge of the blockade is liable to the consequences of a breach of it (1 Robins. 154; 4 Cra. 78; 5 Cra. 335; 6 Cra. 29) and neither in our treaties with foreign powers nor in the treatises of public jurists is there to be found a reason why a sailing with knowledge for a besieged port should not have a similar effect. It was asserted before the board that the investment of Cadiz by the French was only on the landside, and by analogy to some decisions of Sir William Scott in cases of blockade it was contended that a maritime expedition could not be an infraction of the siege. It might however be sufficient to reply, that the capture of so many vessels at the very opening of the port by boats armed for that purpose, was proof in itself that the investment had been more complete than was admitted by the argument. But the analogy on which the argument rests is imperfect. In the cases of the Ocean and the Alert (3 Rob. 297, 4 Rob. 65), which are those referred to, the question was, whether a voyage from an open port became a violation of blockade because the cargo had been brought overland from a blockaded town. Had the goods in those cases been captured before their arrival at the place of exportation by troops stationed by the way for the purpose of intercepting them, the facts would have more nearly resembled those, on which the board was called to decide. It is enough for the vindication of France, that the means which she employed for the investment of Cadiz were such as to make a breach of the investment 'evidently dangerous.' Whether she used ships of war to prevent the introduction of supplies, or whether she relied on her batteries or her boats to produce the same result, is altogether unimportant. Nor has a neutral the right to question the adequacy of the force to the object, if there appears to have been a real intention of seeking the reduction of the place by investment. How can he in such a case complain that the force was insufficient to occasion evident danger of capture, and that he was himself captured by that very force?

"3d. A still more plain dereliction of the neutral character was that of an engagement in the transport service of an enemy of France; as where an American vessel was chartered by a government agent to carry supplies to the British garrisons in the West Indies, and was captured while performing that office. The only difficulty, in cases like this, was in attaining a knowledge of the fact. It rarely presented itself in the evidence before the prize court, and did not perhaps form a part in every instance of the more full development of interests which was exacted by the rules and practice of the commissioners.

"4th. Under the treaty of 1800, the cargo took its national character from the flag under which it was carried; free ships making free goods

and enemy saips enemy goods. But when that treaty expired, the general law of nations obtained as between Frauce and the United States, according to which, the property of an enemy is under all circumstances a legitimate object of seizure and confiscation. Accordingly, when an American had laden his goods on board a British vessel, he could not complain that his voyage was broken up by the capture of the vessel; and for the same reason a British cargo would authorize the arrest and temporary detention of an American vessel. Still, according to the law of nations, the property of the neutral would not be affected in either of these cases by its association with that of a belligerent. The American cargo would be restored, and the American ship released as soon as she could be unladen. The exceptions to this rule were founded on the alleged misconduct of the neutral. If he endeavoured to mask the property of the enemy, by commingling it with his own or by otherwise investing it with a neutral garb, he was punished for the deception by a forfeiture of his national claim to immunity. Thus, where a Swedish ship which had been purchased by an American, entered a port under the dominion of France then at war with Sweden, and exhibited simulated American papers to protect herself from capture as an enemy, her cargo belonging to the same American was held justly liable to condemnation.

"5th. The absence of appropriate documents to establish the American character of a vessel or its cargo, constituted another sufficient ground for its arrest and detention. But it was held by the board that the deficiency was not per se a ground for condemnation. The seventeenth article of the treaty of 1800 provided that such cases should be examined by a proper tribunal, and that their neutrality might be sufficiently established by other proofs admissible by the usage of nations.' The absence of a similar provision in the treaty of 1778, connected with a stipulation that neutrals should in times of war be provided with certain national documents, had given room for a different decision by the French courts. But the commissioners were of opinion that, independent of the treaty of 1800, and of course after it had expired, secondary proofs of nationality could not be rejected in ordinary cases without violating the law of nations. The eleventh article of the French regulations of 26th July 1778, which ordained that 'regard should be had only to the documents found on board' at the time of capture, was regarded as itself an interpolation in the code of public law which no nation had authority to make. It was unnecessary to appeal on this point to the unvarying rules of other countries. The very words of the treaty of 1800 recognize that other proofs are admissible by the usage of nations,' and give to the treaty provision a merely declarative character. Whatever may have been at one time contended in the United States, the principle is too clear for argument now, that a nation cannot modify her expressed compacts nor those which are implied by the general usage, without the assent of the parties by whose concurrence they were originally established.

"The Berlin decree was held by the commissioners Berlin Decree. to present no justification for the acts of France, so far. 1. As it interdicted to Americans the trade with England in goods not contraband and to ports not actually blockaded; 2. As it interdicted to them the trade in English manufactured goods; 3. As it condemned American ships for carrying British property; and 4. As it condemned American property, because found on board British vessels, or having been under the protection of British convoy.

It is indeed

7th. There was one class of cases within the operaMilan Decree and tion of the Milan decree which was held to furnish no Recaptures. ground of complaint. It was that of captures made by France of American vessels while in the possession of English captors, after a forcible detention of more than twenty-four hours. somewhat doubtful whether the French law of recaptures was at all changed by the decree. According to long-established regulations, a French vessel after twenty-four hours' possession by an enemy becomes absolutely the property of a French recaptor, and is not restored on salvage. The same rule has always been applied to the property of allies of

France, when recaptured from her enemy. But as to neutrals; from the year 1779 the usage for many years was to restore recaptured neutral vessels, provided they were not laden with contraband, or otherwise in circumstances to incur the hazard of confiscation (dans le cas d' etre confisqué) by the enemy.

"It was perhaps, because this hazard was supposed to attach to all neutrals when captured under the earlier orders in council of Great Britain, that the council of prizes at first, in the early part of the present century, pronounced the condemnation of recaptured vessels, with innocent cargoes. Such was the case of the George, Eveleth, captured by the British in January 1808, recaptured by a French privateer in February, and condemned in July following, on the express ground of the recapture, as well as for a breach of the Milan decree. But as all such cases were covered by the language of that decree, the idea of a visit from a British cruiser' being included in that of capture by such a cruiser, the French courts, after the decree had been promulgated, generally referred to it as their authority for pronouncing condemnation.

"It is not necessary to seek through the various and conflicting usages of different nations for a general law on the subject of recaptures, nor to inquire whether the Milan decree, in this application of its provisions, violated the rights of neutrals. Under what circumstances the recapturing cruiser is bound to investigate the title by which his enemy held possession of the prize, and how far the principles differ under which an eighth, a third, the half, or the whole of the neutral's property is condemned without reference to any act of his, might at one time have been topics of difficulty as well as interest. But the act of Congress providing for salvage in cases of recapture' (1800, ch. 14, sec. 3), and which our highest court has applied to cases of neutral and belligerent property alike, has decided the only question which could properly claim the notice of the commissioners. This act provides that property belonging to subjects of a foreign state shall, when recaptured by vessels bearing American commissions, be either restored or condemned, on the same terms and by the same rule as would be applied by that foreign state to American property in similar circumstances. Thus adopting the principle of reciprocity, we have admitted the right of other nations to legislate on the subject as they see fit, and cannot complain of the manner in which the discretion is exercised. Whatever may be their law, it is for the time our own: we deal with their citizens as they deal with ours. It is unnecessary therefore, to inquire whether the French law of recaptures is of ancient standing, or a consequence of the Milan decree, nor whether it is essentially reasonable or just our inquires are at an end, when we have ascertained what it is. No reclamation can be founded upon its application to the case of an American citizen."

Character of Injuries
Indemnified.

Assuming that an unlawful act on the part of France was established, was it injurious to the claimant, and was the injury susceptible of pecuniary reparation? The board did not deem it necessary, says Mr. Kane, to distinguish between cases in which the act of France constituted the essential wrong, and those in which the injury was plainly and immediately consequential, as where a vessel unlawfully captured was wrecked in the hands of the captors, or damaged or vexatiously detained. So, in the peculiar circumstances before the board, under which capture was almost equivalent to condemnation, salvage was allowed for the recapture of neutral property.' On the same principles, claims were allowed for ransoms paid to avert confiscation. Usually, however, it was requisite to show that the injury was directly referable to France. It was also necessary to show that the wrong was not of form, merely, but of substance. Irregularities in procedure, where no injustice was done, were not regarded.

1 The War Onskan, 2 Rob. 299; The Sansom, 6 Rob. 410; Talbot v. Seaman, 1 Cranch, 37.

Claims Renounced.

As to the acts by which the rights of an American citizen to indemnity might be invalidated, Mr. Kane discussed, first, the acts of the United States, and next the acts of the citizen himself. The most important act of the United States in this relation was the renunciation of claims by the convention concluded September 30, 1800. Mr. Kane, speaking for himself both as to "fact" and as to "argument," says that "in general," indemnities "due or claimed" before July 31, 1801, the date of the exchange of the ratifications of the convention at Paris, were understood to have been renounced, on the ground that "a treaty has effect from the date of its final ratification," and therefore that the claims which were released were those that existed at that date. The obvious consequence of the assumption that the convention was to be considered as having taken effect, in respect of its renunciations, at the date of its ratification and not of its conclusion, was to invalidate a number of claims. From the exclusion of claims that arose prior to the date of ratification, an exception was made in respect of property which France was obliged by Article IV. of the convention of 1800 either to restore or to pay for, but which was not provided for by the convention of 1803. Where restoration had become impossible, as by recapture, France was not held liable.

In considering the claims under Article IV. of the Proofs of Ownership. convention of 1800, the question arose as to whether it was necessary that the claimant should have demanded restitution of or compensation for his property from the French Government, supported by the proofs of ownership which that article prescribed— a passport and a certificate of cargo. On this question the board granted a rehearing, but adhered to its decision that the proofs of ownership prescribed by the article were essential to substantiate the claim. The passport and certificate of cargo prescribed by the convention of 1800 were the same as those specified in the treaty of amity and commerce of 1778, and the board held them to be exclusive proofs of ownership. This question, it may be observed, was distinct from that of the condemnations for want of a rôle d'équipage.

Case of Insurers.

The principal cases in which claims were held to have been invalidated by the claimants themselves were those in which there was an omission to seek the relief provided by the convention of 1800, either by failure to bring the case before the proper tribunal or to produce the necessary proofs, or in which the claimant had accepted an indemnity, though an insufficient one, from France; or, most numerous of all, in which the loss was borne by insurers. In the last case the insurer was treated as having acquired pro tanto an interest in the fund; but if he happened to be a foreigner he was held to be excluded by alienage, and his payment for the loss operated as an absolute relief to the fund."

"Special agreements, however," says Mr. Kane, "distributed the interests in some cases differently. An insurer sometimes became invested by contract, like another purchaser, with the whole claim of his assured, and sometimes the claim to indemnity was under a compromise surrendered by the insurer. But even in these cases the principle underwent no modification. The rights under the treaty were still held to have vested in the party who was substantially injured by the act of France; and if either

In restricting awards to the loss actually sustained Measure of Damages. by claimants, without interest, Mr. Kane, though he seeks to justify the rule in point of law, substantially admits that the action of the board was influenced by the disproportion of the fund to the amount of the claims. The rules actually applied by the board in determining the amounts to be awarded are explained by Mr. Kane as follows:

"I. In the ordinary cases of seizure and confiscation, the loss to the American citizen consisted in the value of his property at the time it was unlawfully taken from him, and the expenses which he incurred in a reasonable effort to defend or reclaim it.

"1. Where the property was seized on shore, at the place to which it was destined, and where it had a defined marketable price, that was adopted as the criterion of its value. It was ascertained by reference to prices current and letters of the day, or accounts of sales effected before the seizure. Evidence such as this formed by much the most satisfactory basis for the awards of the board.

"The sales which took place under the authority of the French Government, whether before or after the final confiscation, were rejected from consideration. They were substantially prize sales, and their prices were influenced by causes, with which the value of the property while in the hands of the owner had no connexion. Sometimes the nature of the cargo seized was such, that its introduction into the market by ordinary commerce was absolutely prohibited. The exclusion from Europe of the productions of British colonies was the great purpose of the continental system of Napoleon, and formed the excuse for some of the heaviest seizures of American property. But, once sold as prize, colonial produce was admitted for consumption wherever that system prevailed. It is obvious that the price in these cases was enhanced by the privilege which the government sale conferred. In every instance a custom-house seizure of neutral property, by proclaiming the hazards to which its importation was exposed, and so deterring others from the perils of competition, exaggerated the price for which it sold. Sometimes, on the other hand, the sale was made in a remote, a glutted, or an otherwise inappropriate market; and the proceeds fell short of the cost. The loss to the American citizen by the confiscation of his property, and the receipts into the French Treasury from the sale of it, were therefore affected by circumstances altogether different, and could approach each other only by accident.

"2. Where the property of an American citizen was seized on the ocean, a different method of ascertaining its value was necessarily resorted to. Recourse was had in such cases to its last known value and to the circumstances which had afterwards increased or impaired it.

"The vessel was generally estimated at her cost to the owner, deducting a reasonable percentage for her subsequent depreciation. The expense of constructing her, as entered in the builder's books of account, and the price paid for her by the claimant, or that for which an interest in her had been sold to others, were of course safe guides to her value at a certain time. The valuation sometimes found in the charter parties, and that stipulated in policies of insurance or embargo bonds, were also valuable, though rarely to be accepted as conclusive; and even modern depositions were sometimes resorted to.

the insurer or his assured obtained an award for more than he had lost it was only as assignee for the other's interest. The spes recuperandi was not held to be the indispensable companion of a valid reclamation. The former passes by cession, and only as a consequence of abandonment; the latter was recognized wherever a loss had been paid, whether partial or total. In the case before the supreme court of New York (8 Johns, 237) the insurer received neither abandonment nor cession, but he had the title to indemnity; the spes recuperandi did not pass to him, but he acquired the right of reclamation."