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.

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 gov ernment sale conferred. In every instance a custom-house seizure of nentral 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."

"These proofs of value however were rarely full, and sometimes a.. of them were wanting. Aware that this might probably be the case, the board at an early day invited the gentlemen who represented claims before them, to aid them in collecting information as to the cost of constructing vessels of different classes, in the several building districts of the United States, during the periods embraced in its investigations, and to ascertain from the insurance offices and other proper sources the rate at which such vessels depreciated as they grew older. Several gentlemen were kind enough to take upon themselves portions of this labour. My deceased friend, Alexander Stewart, Jun., of Philadelphia, whose name will recall to the circle which knew him all that is indefatigable, accurate, and just in mercantile character, devoted to it the industry of several months; examining the books of builder's, merchants and insurers, where these were accessible to him; gathering facts and estimates from intelligent residents of other cities by correspondence; collating his materials, and presenting their results in a tabular form.

"The seizure and description of the vessel, its place of construction, and its age were except in a few cases of foreign built vessels determined easily by the register; and the proximate, or rather the probable value was then fixed by reference to the general table of information which had been collected on the subject. This result was compared with the proofs in each case; and the table was made more accurate for future use by the repeated tests which were thus applied to it.

"The cargo when taken at sea was estimated at its price in the market from which it came, and the different charges which had contributed to increase its value. The bills of parcels of the claimants, their invoicestaking care to strike out the debentures on foreign merchandize where they appeared to be included in the price-the sworn value in the manifests of exportation, and a comparison of these in some cases with other similar documents relating to other shipments, or with prices current of the day, enabled the board to fix the original cost with reasonable certainty.

"To this were added the ordinary brokerage on the purchase of the goods-whether it was actually paid by the claimant, or the transaction was effected by his personal agency-the expenses of shipment, and the fair and ordinary premium of insurance for the immediate voyage, ascertained at the time of shipment and calculated to cover. This premium was regarded as a sufficiently exact equivalent for the hazards of the voyage, and as indicating definitely the increase of value which was gained by encountering them. It was therefore allowed, without inquiring whether the risk had been transferred by contract to an insurer, or was borne by the owner himself.

"As the vessel was the subject of specific allowance, and wages are not due unless the voyage be completed; and as freight is made up only of these and of the profit of the ship owner on the capital invested in his ship; it would seem at first view that the rule which excludes a claim for prospective profits should also apply to one for freight. But, as the premium of insurance represents the increase of value which is communicated to goods by the hazards they have encountered, so freight or the cost of carrying them indicates the increase of value they derive from their change of place. There is only this difference between the two: that the right to the full premium is fixed from the commencement of the risk, while the freight is not finally earned till the cargo arrives at the port of delivery. Both contribute to the value of the goods at the time of capture, the premium having imparted its entire amount, as a charge incurred at the time of shipment; the freight imparting such a share of its stipulated amount as is proportioned to the part of the voyage performed, pro rata itineris peracti.

"In estimating the pro rata freight, the board was guided by the practice which obtains in most of our commercial cities in the adjustment of average losses, and fixed it at two-thirds of the full freight on the immediate voyage.

"Yet, though the freight was allowed only as an element in the value of goods, it was not always or even generally awarded to the owner of them.

The question remained as in all other cases to be settled by facts: Was he the party substantially aggrieved? If he had paid the freight, as was sometimes the case under special contracts, he received it back under the treaty; if he had not, the award was made in favour of the ship owner, as the real loser.

"3. Other cases presented themselves in still different aspects. Sometimes the seizure took place while the vessel was in the act of entering her port of destination; sometimes after she had arrived there, but before the cargo was unladen; sometimes after a partial delivery. The question, in what manner the property should be estimated in these cases; whether according to the market value abroad, or the cost at home with the charges of shipment and freight; was often embarrassing from the difficulty of distinguishing in principle between them. Vessels in the same trade were taken possession of under the same pretext, often in sight of one another, when the forbearance of a few hours would have made their circumstances identical.

"The distinction which was adopted divided them into two classes, depending on the fact of the voyage being legally completed, or otherwise: and as according to the mercantile law full freight is earned only when the voyage is complete, the rules established by the courts on the subject of freights determined for the board its mode of estimating the value of these cargoes. Thus it was held, that the domestic value must be the basis of estimation in all cases where the vessel had not actually entered the port before capture: but where she had entered it, and was prevented from delivering her cargo by the act of the French Government, the voyage was held to be complete, freight earned, and the value of property abroad became the measure of the award. (See the case of Morgan r. The Insurance Company of North America, 4 Dall. 455.)

"4. A small class of cases remained to which neither of these rules of estimation would apply. They were those in which the cargo was acquired principally by the skill, enterprize and labour of the claimants, and the application of moneyed capital had contributed very little to its value. Such. were the cases of vessels engaged in the fisheries, or in whaling or sealing voyages. In these, for want of a rule of more probable accuracy, the cargoes on board at the time of capture were valued at the prices which they would have realized in the markets to which they were destined.

"To each of the awards which have been described was added a reasonable but guarded allowance for the expenses attending a reclamation immediately after the capture, where it was shown that they had been paid by the claimant. These were a proper consequence of the wrongful act of France; and indeed it would generally have formed a just objection to any claim against her, that it had not been prosecuted at the time when it arose.

"II. The only awards that are not explained by the preceding remarks, belong to cases where the property seized was not finally confiscated, or where a portion of its proceeds was restored to the owner.

"1. We have intimated already, that where a vessel was conducted into a port as prize to a French cruiser, a reasonable detention for the purpose of determining her character formed no ground of complaint against the nation. This is obviously true, if the arrest was justified by circumstances of suspicion; and even if it was plainly tortious, it was the act of individual wrong doers only, until it received the sanction of the government.

"2. Where the release justly claimable was vexatiously withheld, compensation was awarded to the ship owner for the wages of his crew, for the expenses of supporting them, and for the damage incurred by the vessel during detention. If however a condemnation supervened, the items of wages and damage were omitted in the calculation: wages, because in such case they were not payable; and damage to the vessel, because it was merged in the general allowance of her value at the time of capture. This class of awards was generally described as the allowance for demurrage; but the loss of interest on the capital invested in the ship, which forms the most important element in the charge commonly known by that