2.3S r8?6e A A= — .' A — g ?— i 5— i Collection of Speeches in Congress on the Geneva Av;ard 8 ;= i AT LOS ANGELES '^ i^ ^ '* DISTRIBUTION OF THE GENEVA AWARD. The plain and common rules of honesty and fair dealing are as obligatory in arbitraments between nations as between individuals. SPEECH OF HON. ELIJAH WARD, IN THE HOUSE OF REPRESENTATIVES, ^AY 23, 1876. Our country obtained the money through the award of a great international court representing the leading civilized nations, with the hope not only of solving the difficulties which then existed, but of establishing a precedent which wrnild tend to promote human progress by substitutingjust and honorable arbitrament for settlements through brute force and the horrors of war. We are bound to respect the rulings of the court; and those whose good opinion is best worth deserving will judge us by the disposal we make of the funds committed to our charge. WASHINGTON 1876. DISTRIBUTION OF THE GENEVA AWARD. The plain and common rules of honesty and fair dealing are as obligatory in arbitraments between nations as between individuals. SPEECH OF HON. ELIJAH WARD, IN THE HOUSE OF REPRESENTATIVES, yVlAY 23, 1876. Our country obtained the money through the award of a great international court representing the leading civilized nations, with the hope not only of solving the difficulties which then existed, but of establishing a precedent which would tend to promote human progress by substituting j us t and honorable arbitrament for settlements through brute force and the horrors of war. We are bound to respect the rulings of the court; and those whose good opinion is best worth deserving will judge us by the disposal we make of the funds committed to our charge. WASHINGTON 1876. I <■ I TO I '1/ ^ ^' \J a; e- Distribution of tlie Geneva ATravd. SPEECH OF HON. ELIJAH WAHD. The Honse having resolved itself into Committee of the whole on the State of the Union, ilr. Si'iikgeu in the Chair, and proceeded to consider the bill making \ appropriations for the Indian Department — Mr. Ward said : "■ jj Mr. Chairman: Before proceeding with the remarks which I pro- ^ pose npou the distribution of the award made by the tribunal at ^ Geneva for losses sustained liy citizens of the United States, I ask J^ the Clerk to read a paper which I send to the desk. The Clerk read as follows : > To the honorable tlie Senate and Ilouse of Representatives of the United States of Amer- ^ ica in Congress assembled : ^ The undersifoied, marine underwriters, owners of claims hy reason of which the \ money paid by Groat Britain was awarded by the tribunal of arbitration at Geneva, 'j^ respectfully remonstrate against the passage of the House bill No. 2C85, reported to ~\ the House of Representatives by Mr. Loitn, from tlie Judiciary Committoo. The pro- > posed bill disregards the decisions and proceedings of tlio tribunal in tlio rejection ^ and aUowanco of claims, denies or ignores the Just rights of lawful owners of prop- erty tlie value of whicli entered into the award, and fails to .satisfy the trust, duty, and obligation of the Government of the United States toward those upon or by vj rea.son of whose legal rights it obtained the award andcoOectod the money. And the provi.-tion for admitting tlieso rightful chiiniants to a .share of a supposed sur- jdus, afttrr bc.ntowal of the fiinil upon invalid and improperly preferred claims, t^ which were wholly rejected by the tribunal and are necessarily indeliuito in amount, does not in anywi.se obviate or correct the injustice. \ E.ich of your petitioners, which is a mutual society, further respectfully pro- tests against bestowal of the monej- of the society upon what are termed war-pre- mium clainiant.i, who do not embrace but a fragment of its dealers, aiieen run, but there has b(!«n no loss. Yet further from all right would it be for any third party, even the United States, to step in and, by the power of force, give the vessel to other parties. We are not approacliing the subject of the disposal of the amount paid to us ae if the money were our own, to be given a« wc choose. Two-thirds of it remain undistributed. It was awarded for specific purposes and for no others, and the money was paid to the Govern- ment of our country for parties whose claims were admitted to be just and who had confided them to the Government as its best and truest trustee. The bill reported by the majority of the Judiciary Committee makes provision for three classes of claims. It provides : That the first class shall be for claims directly resulting from damage done on the high seas by confederate cruisers during the late rebellion, including vessels and cargoes attacked on the high seas, although destroyed within four miles of the shore, except as provided for in section 11 of said chapter 459. The second class shall be for claims for the payment of premiums for war risks, whether paid to corporations, agents, or individuals, after the sailing of any confederate cruiser. The third class shall be for claims for sums actually paid for insured property de- stroyed on the high seas by such confederate cruisers, except sums for which judgments have been entered under section 12 of said chapter. That judgments entered in the first class shall be paid before judgments of the second class are paid ; and judgments of the second class shall be paid before judg- ments of the third class are paid. If the sum of money so unappropriated shall be insuflicient to pay the judgments of the first class, they shall bo paid according to the proportions wliich they severally bear to the whole amount of such unappro- priated sum. If such sum shall be suflBcient to pay the judgments of the first class, and not sufficient to pay the judgments of the second class, the latter judgments shall be paid according to the proportions which they severally bear to the residue of such unappropriated sum. If such sum shall be sufficient to pay the judgments of the first and second classes, and not sufficient to pay the judgments of the third class, they shall be paid according to the proportions which they severally bear to the residue of such unappropriated sum after the payment of the judgments of the first and second classes. The Geneva tribunal adjusted only the liability of Great Britain for the admitted depredations committed by the Florida, Alabama, and Shenandoah after leaving Melbourne, and their tenders, the Tus- caloosa, Clarence, Tacony, and the Archer, and excluded from consid- eration, in the award of damages, the Georgia, Sumter, Nashville, and other exculpated cruisers. In opposition to this decision, the bill allows to be presented claims resulting from damage done on the high seas by all " confederate cruisers during the late rebellion," without the limitation imposed by the arbitrators and in direct conflict with the intent and decision of the chosen tribunal. In equally bad faith is the provision allowing claims for the pay- ment of the premiums on war risks, which were distinctly ruled out by the tribunal. This ruling was recognized and accepted by the agent and counsel who represented our Government at Geneva ; and, to make yet more glaring the enormity of the proposed bill, the claims of the insurance companies, which seem to come clearly within the award, are placed in the last class, without possibility of pay- ment after the wrongful demands, excluded by the tribunal but placed by the bill in the first and second classes, have been satisfied. 9 The majority of the Committee say, "with an evident desire to palliate the transparent injustice they suggest inflicting on the in- surance companies, that the first class of claims for •which provision is made in this hill will not, they think, exceed §1,500,000, and the second class §5,000,000, leaving $4,000,000 for the insurers. A signifi- cant commentary on these estimates is that the chairman of the Ju- diciary Committee in the last House, who urged the same interests aa have priority in the report made by the majority of the present com- mittee, in answer to a question by another honorable member, replied that the bill then under consideration, and which is now a law, would require only $3,000,000 to satisfy the claims for which it provided. As matter of fact it has taken between eight and nine millions. The probability is that the first two claims for which provision is made in the bill reported by the committee would swell in larger proportions. It would be difficult to find in the whole history of pernicious leg- islation a precedent more dangerous to public and private integrity than the perversion of the funds our country has obtained from Great Britain for specific purposes, wliich were admitted to be just, to other purposes for which it was not and never would have been awarded. There is no doubt how the courts would decide, and I regret that a knowledge that no court in equity would reject the doctrine of subro- gation as applied to the insurance companies, should be assigned as a reason why Congress ought to take the matter into its own hands and make its own will the law. It is bad enough that Congress should disregard settled princijiles and rules as to the rights of property, but that such a doctrine as this is avowed in open debate in this House is deeply to be deplored. Having called to our aid in settling the claims of our citizens against the British government men of the most pro- found legal knowledge and the highest character among other lead- ing nations of the world, tlie attention of civilized mankind is di- rected toward us. The reputation as well as the honor and honesty of our country is at stake, and ,if wo fail in our duty, wo shall bo deemed now and througli future history to have added publicly and 38 a nation a portentous illustration to the already long catalogue of the too prevalent characteristics of the times. While tlie facts I have presented are beyond doubt or cavil, the con- siderations which should regulate our tlocisions as to the Alabama claims are so unquestionable as to be out of the region of debate. I repeat that tlio Government of our country obtained the money through tlie award of a great international court appointed by the leading civilized nations, with the hope not only of solving the diflfi- cultifs wliicli then existed, but f)f establishing a ])roc('dcnt which would t(!nd to promote human progress l)y substituting just and hon- orable arbitrament for settlements through l)rute force and tlio hor- rors of war. We arc bound to respect the rulings of the court; and 10 those whoso good opinion is best worth deserving will judge ua by the disposal we make of the funds committed to our charge. Our Government obtained the award as damages for the destruc- tion of private property, and on proofs supplied by its owners. As the Government itself never owned the property, it cannot possibly bo the rightful^owner of the damages'or Jhave any right to confiscate them. In jtresenting the claims before the court as grounds for damages, the Government insisted upon their validity. If it has now discov- ered that they were invalid and that it was an error to present them, only one alternative remains. The plain and common rules of hon- esty and fair dealing are as obligatory in arbitraments between na- tions as between individuals ; and if, after recovery of damages, the plaintiff" nation ascertains or becomes convinced that the recovery was founded on wrong or error, it is bound in honor and good faith to re- turn the sum improperly collected. While Great Britain would doubt- less be unwilling to receive again any part of the sum she has paid to the Government of the United States under the award, she cannot be expected to regard without interest an alienation of the money and its application to objects for which, by so high a tribunal, it has been decided that she is not responsible. The duty of the Government, apart from this alternative, is plain and simple. Having received the money as the value of private prop- erty, it la bailee or trustee for the owners. Repudiation of the trust or bailment by any individual under the same circumstances would be severely punished in a court of justice. The nation cannot be sued, but it is therefore so much the more firmly bound by higher considerations of right and policy to render no less justice than the private trustee would be constrained to do. All fair consideration of this subject leads to the same conclusions. The only just claim on the part of the Government is the one per cent, interest, the difference between what it has paid and received. This is fairly its right, and should be covered into the Treasury. The Government ought freely and promptly to submit all claims upon which the award was based to proper audit beforo^the distributing tribunal, where they can be heard upon their merits and decided in accordance with the principles of. legal right. No other course will afford substantial or valid protection to the national.Treasury, and any indirect or arbitrary procedure cannot fail to disgrace our country in the estimation of the whole civilized world. o THE GrENEVA AWARD. IT AIAY BE DISTRIBUTED ACCOEDIXG TO JUSTICE EQUITY. AND GOOD FAITH. HON. GEORGE W. McCRARY. OI^ lO'WA., IN THK HOUSE OF REPRESENTATIVES, June 8, 1876. AV A s; ii 1 2sr G T ( ) X . 1876. SPEECH OF ' HOX. GEOKGE W. McCRARY The Hou.si.' iiaviuj; under consideration the bill (H. E. No. 2685) for the distribu- tion of the iinapnropriated moneys of the Geneva award — Mr. McCRAKY said : Mr. Speaker: I desire to coufiue my remarks upou tliis bill mainly to what I regard as the fundamental inquiry in the discussion. That inquiry is whether the fund paid into the hands of the United States as the proceeds of the Geneva arbitration and award is a trust fund which we are bound to pay to certain particular claim- ants, or whether it is a fund paid to this Government to be dis- tributed according to its discretion, and according to its view of what is required by equity and justice and good faith toward its own citizens. This I say is the fundamental question. If it be decided, as I think it must be, that the Government of the United States may exercise its discretion in the disposition of this fund, then I think there will be bitt little difficulty in determining what ought to be done with it. One class of the claimants, the insurance companies, represented by the minority of the committee, have already been enriched by war premiums charged and received on account of the very causes which gave rise to the treaty of Washington and resulted in the Geneva award. In order that the importance and the significance of this question may be seen by the House, I beg to state a few facts which have now passed into history and will not be questioned. Very soon after the outbreak of the war of the rebellion Great Britain, animated no doubt bj' a hope that her oft-repeated prophecy of the downfall of this Republic was about to be fulfilled, recognized tlie belligerent rights of the Confederate States. That recognition and the events which followed gave rise to what were known as the Alabama claims, to the treaty of Washington, aiul to the Geneva ar- bitration. IJfforc that recognition, Mr. Speaker, our commerce was «afe upon tbf high seas. The confederacy had no ships of war and no means of producing them. It Wiuj not long after that recognition until a liirgi' number of confederate cruisers were armed and equijiped in British ports and let loose upon the high seas to prey upon Ameri- can commerce and to destroy American shipping. This, in a word, was the cause of our complaint .-igainst Great Britain. It was main- tained by the Government of the United States from the very com- mencenu^nt tliat the losses which our American ship-owners and onr American merchants suffered by reason of tlieso cruisers wen* canwd by the hasty recognition of the belligerent rights of tlie confederacy and by the subse([uent course of the govcrniiKiiit of Great Britain in permitting rebel cruiserH to fit out in and sail Iroui hi^r jxjpIs. As oua of the lesulfcs of these causes the rates of insnrance went up to enor- mous proportions. The iusunince companies •svho insured American ships chai'ged very high war premiums; and as a result of the busi- ness of insuring American ships and cargoes against war risks, the insurance companies, which are now claimants for a portion of this fund, realized a profit in the aggregate of more than ;f2,000,000. Va- rious ships were destroyed that were not insured. Persons who paid, because these cruisers were abroad upon the ocean, large sums of money as war premiums now ask, and I think justly, to be indemni- fied from this fund. It is not my purpose to enter into detail. My task shall be to es- tablish the proposition that it is within the Y>ower of Congress 'to exercise a discretion in the distribution of this fund and so to dis- tribute it as to pay the actual losses, so as to pay. the actual sufferers the amounts which they lost by reason of Great ]3ritaiu's wrong. I maintain, Mr. Speaker, that Congress is not bound to pay over this money or any part of it into the coffers of corporations that were enriched by the recognition of the confederacy by Grreat Britain and by the fact that confederate cruisers were permitted to be abroad upon the ocean. If, sir, this great arbitration between these two great nations has.hadno other result than this, that the fund received from Great Britain in order to carry out the award must be carried into the coffers of corporations that lost nothing but really enriched themselves by reason of the wrongs for which our damages were allowed, then our boast as to the honor that has been conferred upon this nation by the treaty of Washington and the Geneva award is an. empty boast. Now, I maintain the proiiositiou that the Government of the United States has not put itself in this attitude, hnt has from the beginning to the end of this great and to us highly honorable controversy reserved the right to distribute this fund as right and justice and good faith may dictate. If I can settle that proposition, I think there will be little doubt as to what the House will do witli the pending bill. The- report of the majority provides a just, an equitable, a fair distribu- tion of this fund, a distribution such as I am sure the House will not hesitate to agree to, if we shall tlnd that this discretion exists. In determining this question it is proper that we consider the treaty itself, the proceedings at Geneva, and the award of the arbitrators. I maintain that by reference to all. of these it is apparent that the Government of the United States did retain control of this fund and the right to dispose of it to actual sufferers by reason of England's wrong, bounded only by the subject-matter of the arbitration. ' But before I come to consider the main <|uestion, let me call the at- tention of the House to a preliminary consideration. This question, M)'. Speaker, has once been decided by Congress. After a long de- bate the two Houses agreed, and a bill was passed which is uov/ the law of the land which recognizes tlie doctrine for which I contend, and which provides that the insurance companies which made money out of war premiums sliall only recover the amount of their actual losses. The language of the law is as follows : No claim sliall be admissible or allowed by .said court, by or in behalf of any in- surance company " * * unless such claiiuaEt shall show to the satisfaction of said court that during the late rebellion tlie sum of its * * * losses in respect to its * * " war risks exceeded the sum of its * ' * premiums or other gains upon or in respect to such war risks. Now, Mr. Speaker, under that law the proper court has distributed about one-half of this large fund. Upon that princi])le about ten mill-. ious of the twenty milliou dollars originally iu tlic Treasury, iuchul- iug interest and premium ou gold, has been distributed. Now, I do not say that this Congress may not reverse the policy of the last Con- gress : but I do say that as a matter of public policy it is exceedingly impolitic for one Congress upon a subject of this character to change the policy established by another. Let us look at it for a moment. Congress has deliberately decided upon a rule by which this fund shall be distributed. By that rule a large class of claimants ai'e denied relief because they are not» losers, l)ut gainers, on account of the acts of which the Government com- plained and for which the Government received this money. Under this rule, established by solemn act of Congress, we have proceeded until the fund is one-half exhausted. Now, sir, if that rule is reversed, if it be now declared that the in- surance companies are entitled to this money, no man can say the fund will hold out until they are all paid, because one-half of it has been distrilmted upon the other theory. And if the fund does not hold out, who will undertake to say Ihese corporations will not suc- cessfully demand the payment of their claims out of the Treasury of the United States for any balance over and above the amount of the fund ? I think, Mr. Speaker, that a question of this character once decided, once passed into law, ought not to be changed unless there be very grave and controlling reasons for so doing, especially after a large part of the fund has beeii distributed. But, sir, I proceed to show, as I believe I can, from the treaty itself, from the proceedings at Geneva, and from the award, that the Gov- ernment of the United States has retained the control of this fund ; tliat it was paid to this Government as a nation, without any require- ment that it should be distributed to particular claimants, but with the distinct understanding that the Government retained the right to flistriljute it in its own discretion. Mr. HOOKER. Will the gentleman allow me to ask him a ques- tion for information ? Mr. McCKARV. Certainly. Mr. HOOKER. Are you prepared to state what proportion of this award has been paid to tjiese insurance companies iu comi)arison to what has been ])aid to actual losers ? Mr. Mc'CRARY. Mr. Speaker, under the law as it stands insurance companies are entitled to their actual losses, and lam told that they liave claimed and recovered a small amount, a very small amount, be- <;ause there were few companies that did not make money out of war nsks. Mr. CAT'EFH-'LI). Tiie amount of claims put in was $48,001), and they proved .Sl'i,"Oii. Mr. McClf AR^'. Now, sir, I insist under the treaty it was intended that if a sum in gross should be paid to the United States, that sum should be paid to the United States as a nation without restriction as to the disi»()sition of the fund by this Gyvernment. By reference to the treaty it will Ite seen that two plans were proposed for the settle- ment of tlu-se claims, lirst it was proposed that the arbitrators might, if thry saw fit, provide for the api)ointment of assessors be- fore whom all jirivate claimants should present tiieir claims and prove tliem np. Or, if that was not agreed to, then it was proposed and l>rovlded that a sum in gross might be paid l>y the government of (Jreat Britain to the (Jovernment of the t'nited States. And now I want to call the attention of the House to the two arti- cles of the treaty, th(! one which provides for tlie ajipoiiitiiientof as- :61G ^ ^ 6 sosBors, and tbe other which provides for the payment of a sum in gross. I ask the especial attention of the House to the difference between these two articles, because the difference is very striking, and, as I think, very significant. If the proposition to refer the claims to assessors had been adopted, then it was provided that those assessors should be guided and governed in the allowance of claims by the decisions and findings of the board of arbitration. But in case a sum in gross was allowed to the Government of the United States, a very different provision was made. In the latter case there is no limitation to be found in the award except this : that the sum paid to the Government of the United States shall be in satisfaction of all the claims referred to the tribunal. Let me call the attention of the House to the exact language of these two articles, and comment briefly on them. Article 7, which relates to the payment of a sum in gross, provides as follows : In case the tribunal finds that Great Biit-ain has failed to fulfill any duty or du- ties as aforesaid, it may. if it think proper, proceed to award a sum in gross to be paid by Great Britain to the United States. For what? For such claims as the arbitrators have specifically allowed ? For any particular claims, to satisfy any class of claims to the exclusion of others ? No, sir. To be paid by Great Britain to the United States for all the claims referred to it. For all the claims referred to the tribunal. Now, sir, that is pecu- liar language, and it must have been inserted in the treaty for a pur- pose. I shall show, Mr. Speaker, presently that this language is re- peated, with little variation, several times in the treaty and in the award. Bnt when you contrast it with article 1(», which provides for the appointment of assessors, the House will discover at once why this difference, why this peculiar language in one article which is not found in the other. Article 10, which relates to the allowance of claims by assessors, is as follows : In case the tribunal finds that Great Britain has failed to fulfill any duty or dutie.s as aioresaid and does not award a sum in gross, the high contiacting parties agree that a board of assessors shall be appointed to ascertain and determine what claim.s are valid and what amount or amounts shall be paid by Great Britain to the United States on account of the liability arising fiom such iailuie as to each vessel — Here is the point I call the attention of the House to — as to each vessel accordinj to the extent of sxi^h liability, as decided by the arbitrators. Now, Mr. Speaker, why was not that language in article 7 ? Why was no limitation put upon the Government of the United States as to the disposition of this fund ? It was provided in case assessors were appointed they should be guided by the decisions of the arbi- trators, and it was provided if a sum in gross was paid to the United States it should be for "all the claims referred to the tribunal." Now, sir, it is very plain that a different mode of distribution was intended under section 10 from that which is provided tinder section 7. I will show as I proceed why it was that the arbitrators were careful; and why it was that fhis language was inserted ; that it was simply and solely because it was the settled policy of the United States to insist that this Government shotild not b.e committed as to the mode or manner of the distribution of any gross sum that might be allowed. Hence it was that when they provided for a sum in gross they provided nothing but that it .should be in satisfaction of all the claims ; but when they came to talk about submitting these claims to assessors, then they inserted the restrictions. It was of importance to Great Britain in case the claims were to be settled by aeseBSors, "without any maximum sum being named in the treaty, that the rules should be laid down whereby these claims should be determined and the amount paid to each claimant should be fixed. But, sir, when it was proposed to pay a sum in gross to the United States in satisfaction of all claims, it became a matter of no conse- quence whatever to Great Britain what the United States did with the money. I shall recur again to some other features of the treaty before I con- clude, but I pass now to show by the proceedings at Geneva tbat this Government is not committed as to the disposition of this fund. Our policy on the subject was declared in language that cannot be mis- understood in the instructions given by this Government to our coun- sel at Geneva, from which I read as follows ; and as I regard this as very significant, I would like to have the attention >of the House to it : The President desires to have the subject discussed as one between the two gov- emments, and he directs me to urge upon yon stiongly to secure if possible the award of a sum in gross. In the discussion of this question, and in the treatment of the entire case, you will be careful not to commit the Government as to the dis- position of what may be awarded. » * * The Government wishes to hold^itself free to decide as to the rights and claims of insurers upon the termination of the case. If the value of the property captured or destroyed be recovered in the name of the Government, the distribution of the amount recovered will be made by this Government, without committal as to the mode of disti'ibution. Now, Mr. Speaker, if the counsel of the United States before the tribunal at Geneva did not violate the instructions given by this Gov- ernment, then I say that this Government is not cominitted as to the mode of distribution. And gentlemen who come here representing insurance companies and claiming that this Government is committed by the proceedings and the award at Geneva must do so upon the as- sumption that this positive, direct, imperative, and explicit instruc- tion given by the Government to its own counsel was disregarded and was not obeyed. Sir, if it became necessary in the course of that negotiation for the counsel of the United States to submit to a decision which would compel this Government to pay the.se §20,000,000 into the cofi'ers of ;upanios) that the award was founded upon a certain class of claims, that the amount of it was a-scertained by referring to a cer- t.tin .sclicdule setting fr)rth the claims chiefly of insurance companies, and that the Government of the United States obtained this money by making use of the evidence furnished by the insurance companies, and tliat now it is bound to pay it over to them. • Sir, there miglit be Hoinetliing in tliis argument if this statement 10 embraced all the facts in the case; hut it docs not. The gentlemen) ■who make these arguments overlook the fact that wlieu this Govern- ment submitted to the decision of the tribunal as to the particular vessels concerning whose acts Great Britain was to be held responsi- ble — whtn this Government submitted to that decision it did so giv- ing notice to the tribunal, giving notice to Great Britain, that it re- served the right to dispose of this fund in its own discretion in distrib- uting it among its own citizens. Therefore the proposition that this Government recovered this amount of money upon the showing made at Geneva by the insurance companies, even if it were true, would have no controlling influence in the decision of this question. But it does not appear to be trxie. It is impossible to say upon what data, upon what evidence, the arbitrators arrived at the sum of $15,500,000. Various claims had been presented ; such evidence as the United States could command was laid before the tribunal. But the Government expressly declared that it was not to be bound by anything that was presented. The tribunal ascertained the amount from the best evidence it could get. But, like the proceedings in a jury-room, it is impossible to say what controlled or influenced the decision of the arbitrators in fixing the sum. Upon that subject perhaps no man is better informed than Mr. J. Bancroft Davis, who was the agent of the United States at Geneva. I ask to read to the House what he says about it. Mr. Davis says this : It is eTident that the arbitrators, to facilitate, the investigations, wished to have before them a comparative summary of that which the United States claim and the- criticism of these claims by England, criticism bearing upon the items as well as upon the classes of claims. These tables, made by the two parties in no vf&y bind the arbitrators. They are simply indications suited to guide the tribunal across the mass of figures and details contained in the cases and the evidences of the two governments. Again, he says : It does not appear in the protocols how the arbitrators anived at this amount. I am informed that it was reached by mutual concessions. The neutral arbitrators and Mr. Adams, from the beginning of the proceedings, were convinced of the policy of awarding a sum in gross. * * * "We therefore devoted our energies toward securing such a sum as should be practically an indemnity to the sufferers. Whether we have or have not been successful can be determinetl only by thelinal division of the sum. I have said, and I based the statement upon what appears in the record, that our counsel at Geneva obeyed the instructions which were given them by the Government. I think I have shown that they did so. But I have a little further testimony upon that subject ; it is the opinion of one of the counsel who represented the Govern- ment before that tribunal ; I mean Hon. Caleb Gushing. Mr. Gushing, counsel for our Government, in liis book upon the Alabama claims, says : The awaid is to the United States, in conformity with the letter of the treaty, which has for its well-defined object to adjust and remove complaints and claims on the part of the United States. But the history of the treaty and of the arbitration shows that the United States recovered not for the benefit of the American Government as such, but of such in- dividual citizens of the United States as shall appear to have suffered loss by the a«ts or neglects of the British government. It is, however, not a special trust le- gally affected by any particular claimant or claims, but a general fund, to be admin- istered by the tJnitea States in good faith, in conformity with their own conception of justice and equity within the range of the award. Xor does the tribunal define formally what claims .shall be satisfied otherwise than in the comprehensive terms • of the award, which declares that the sum awaided is the indemnity to be paid by Great Brftain to the United States for (he aatisiactiou of all ciaime referred to the consideiatioii ot the tribunal. 11 He further says : The arbitrators, be it observed, do not say tbat it is for the satisfaction of cer- taiii specific claims among those referred to the consideration of the tribunal, but of all the claims so referred conformably to the provisions of the tieaty. And again, and more especially upon the point which I am discuss- ing, as to whether the counsel of the United States carried out the instructions given to them by this Government, Mr. Gushing in a more recent opinion says : The counsel of the United States were specially instructed by the Goverament to avoid committing the United States to any theoiy of distribution as regards either claims or claimants, and especially not to commit the United States in the mattei- of the claims of insurers. * X * * * * * 5. The counsel of the United States obeyed the instructions given them, and did not commit the United States to any theory of distribution whatever, either by way of irclnsion or of exclusion, but left that question to be deterniiiiecl by the wisdom and discretion of Congress. The United States at Geneva laid before the tribunal all the claims of citizens of the United States which had been presented to the Government, without vouching for the validity of any of them ; but insisted that the United States were not bound by the printed schedules, but only by the description of the tre.aty — "all the said claims, growing out of acts committed by the aforesaid vessels, and generally known as the Alabama claims.' (ProtocorxXVI.) So it appears, not only from the language employed in the treaty and award and from the whole course of the proceedings at Geneva but also from the statement of one of the counsel of the United States, that they did obey instructions, and did not commit this Government a» to the distribution of this fund. But this very view of the subject has been taken by British statesmen themselves, and I wish now to call the attention of the House to that. .Certain citizens of England who had lost by the Alabama, claimed in- demnity from their own government, insistingthat, inasmuch as Great Britain had consented to indemnify the citizens of another nation (the United States) for losses occasioned by those cruisers, that gov- ernment was bound to indemnify its own citizens in like manner. And a claim of this character was made in the British Parliament. But it was not considered as valid. The reason given was that the government of Great Britain had not indemnified any citizen of the Unit-ed States ; that the claim of no citizen of the United States had over been considered or allowed by the Geneva tribunal or paid by the British government under that award. During the debate in the British Parliament Mi'. Anderson asked — If we were obliged to pay for damage sustained by the Americar.s. by reason of the conduct of the Alabaiiia, why were we not etjually bound to pay foi the damage tsuKtaiucd by our own subjects by reason of tlie acts of that vessel i Mr. Gla,OiiO to men w!u) do not in honesty and good faitli deserve to receive a single dollar, and so as to deprive others who have lost their all by England's wrong of tho right to recover a single cent. A citizen of the United States was tlio owner of a vessel ujion the high seas. AVith true patriotism and with true courage lie took his own risk. He unfurled tlio Stars and Stripes over his vcissel, when by showing foreign colors he wouhl have been safe. He had no in- surance. A rebel cruiser let loose from a port in Great Ihitain runs down liis vessel and it is destroyed. I lis all is gone and he is enti- tled from no source, if not from this fnnd, to recover a single dollar of indemnity. TJiis patriotic and loyal citizen places his claim iii tho liands of his Government, and his Government goes before this great tribunal to assort his rights, insisting it was England's wrong which resulted in liis ruin. An insurance company that made its million of doll.ars out of war preniium.s, having in the course of its business to pay the loss on another vessel, places its claim, too, in the liands of this fioveriiiiient, ami asks the Government to lie its re])reseutative 14 before this liigli tribaual and to insist upon its rights. The Govern- ment, accordiunr to gentlemen, accepted the position of agent or of attorney for these two chiiniants. It went before that high court. Before going, however, it pledged itself to these claimants, and to its citizens, and to the world, that it would not under any circumstances so tie its hands as to be Unable to distribute fairly and justly auy sum in gross w'hich might be paid into its Treasury as the result of its negotiations. Yet, after all that, are we to be told that this Gov- ernment, in its capacity as attorney or agent, has goue before that tribunal and has violated its promise to the people and to the claim- ants, and has so conducted that negotiation that the citizen who lost his all can recover nothing from this fund, and the insurance com- pany that made its million shall carry off its whole claim ? Sir, you disgrace the nation when you say it acted as attorney in this ca-se, and you disgrace it more when you undertake to show to Con- gress and the American people that when acting as attorney it con- ducted itself in this way. No lawyer could retain his place at the bar in any respectable court on the face of tlie earth who should so betray his client. GEINTEV^ Js.^VJ^TlT) OF HON. GEORGE A. JENKS, OF PENNSYLTAXIA, IN THE HOUSE OF REPEESENTATIVES, JUNE 28, 187G. WASHINGTON: GOVEJJNMENT PRINTING OFFICE. 1870. it must be because they have a legal right ; because as the law now stands they are re-imbnrsed for all that they have lost in excess of that which they have received in war premiums. Now, if they are entitled to anything more it must be because they have a legal right. And if they have legal right to any they must have legal right to all. So that the majority report seems to me to be a logical solecism con- tradictory in itself; apparently acknowledging the title of the insur- ance companies and yet repudiating it. This amendment, therefore, is necessary to give logical consistency to the majority report and to do justice to those wlio have actually lost. During tlie discussion of this question some of those who think the insurance companies are entitled to the whole fund have seen proper and thought it necessary to introduce authority to establish the prin- ciple that a nation should be just. I apprehend. this was entirely unnecessary. To be just is a nation's duty and her highest glory. But we must not forget that before the throne of justice truth is the sole ministering spirit ; and we can approach that throne only through this medium. We must stand upon truth, and appropriate truth, or justice cannot be done. There has also been a series of arguments introduced which to me seem to be entirely irrelevant and improper. Something like this proposition has been stated : The United States have recovered this fund from Great Britain. Now, if she, in disposing of it, does iK)t give it to A or to B, she ought to return it to Great Britain. This is a thorough non scqiiitiir. If a man obtains money honestly, how he disposes of that money can in no event affect the justice or injustice of the mode by which he obtained it. So that whether we give this money to the insurance companies or not, if we obtained it in honest good faith from Great Britain and perpetratetl no fraud upon her, it makes no dili'erence to whom we distribute it. This, therefore, that we see in the papers, that we wrong Great Britain if we give this to others than the insurance companies, does not follow at all. The fact is, as regards Great Britain, this money was obtained for certain ves- sels destroyed in consequence of her neglect of duty as a neutral power in the civil war transpiring between sections of the United States. The individual title of no individual was considered in any way. But I would say here that if in any event it should turn out, or if evidence should be adduced that we have in any manner wronged. Great Britain, I would say pay her her money back. It is our duty to be perfectly just. Justice is a more comprehensive term than either national honor or national glory. The honor may be a mere bubble. The glory may be tainted with crime. But justice is one of the immaculate attributes of the Eternal, and is higher and broader than either of the other terms. I would be just to Great Britain. I would be just to every iieison who iiresents a claim here ; but I would not accept the principle that when we have obtained this money justly, if we do not give it to A, B, or C we should give it back to Great Britain. That question in no way arises here, but is intro- duced into the discussion in consequence only of that confusion which often arises from attempting to consider two things at once which are in no way relevant to each other. In approaching the throne of justice it is also necessary to make this distinction, that all truth is not e(iu,ally important. If I should state as a legal truth that "if a person of sound memory and discre- tion taketh the life of a reasonable being, and in the peace of the Commonwealth, with malice aforethought, express or implied, he is a murderer." That is a truth, an unquestionable legal truth, which we- .accept; but it woiiltl be eutiiely irrelevaut here. Or if I should state as a fact the accurate dimeusious of this Hall, that would be a truth but an irrelevaut truth. So that vre must not only approach the ■august throne of justice through the medium of truth, but we must see that that truth is relevant," relevant in fact and relevant in law. Many considerations have been introduced here that seem to me to be entirely unimportant in the discussion of this case. The first proposition I will endeavor to establish will be that this award was ol)taiued upon the paramount title of the nationf and not upon any imlividual title whatever ; that no individual right was ■considered by the arbitrators, nor was any individual right the basis -upon which this recovery was had. And in reference to this, in order to guard against confusion, it may be well to call to the attention . of the House the fact that there are at the same tiuie to all the aggre- gate wealth of a nation the ]iaramount title of the nation anil the municipal title of the individual. They are not necessarily con- nected at all. The destruction of the one does not necessarily de- stroy the other at all. The transfer of one does not necessarily transfer the other at all. They are distinct and for distinct and dif- ferent puri>oses. The title which pertains to the nation, which is a sovereign as to foreign nations and to the individual, ai'e as distinct as if the two tith-s existed in distinct individuals, each for its own appropriate ]iinj»ose. We may illustrate this by the fact that a nation may sell its para- mount title to another in such case. Those who hold a municipal title are not thereby divested of their individual rights or titles, be- cause the municipal titl^ was not destroyed by the sale. But there may be a money consideration paid for the title of a nation. Audit may be transferred as fully as an individual can transfer his own. We have illustrations of this in the history of our own country, in the cases of the purchase of Louisiana, the purchase of New Mexico, and the purchase of Alaska. Those inhabitants who, ])iun- to those purchases, owned jtroperty within the purchased territory did not have their title affected at all. l>ut the paramount title of France in one instance, of Mexico iu another, aud of Russia in the third was transfeired to our country. Therefore we waut to remember that the municipal title of tlie individual and the paramount title of the sov- reign are not the same at all. Then, if they an; not the same, on what title was this recovery had as to Great Ijritain ? And before we progress further in the consid- eration of that jxiint it may n(d be irrelevant to suggest what is title. " It is the means by which the owner cometh to the just possession of his jiroperty." WJierever tliere is no means there is no title. Some- times the ]>ar»mount title of the sovereign may be the means of re- covering tlie inferior or municipal title of the citizen. Where I speak of th«! jiaranionnt title of the sovereign and the municii)al title of the citizen I do not wish to be undtMstood as derogating fioiu either, be- cause they do not collide; tln;re is no contia vent ion ot'ri;;ht between them; they aie very of ten co-existing, but they may be, separate. Another illusi lation of this point : In a tinit; of war. if a eitizen sell his property to tin- enemy that clearly divests the title of the eitizen to tliat property; but the paramount title of the sovereign is not di- vesteil theieby, ami the sovereign may recover it ba<;k. 'I'he eitizen has destroyed his title; lint tlie nation's titli' stands intact as before, anil it is as nnn li her property after the sah* as before. Tlien^fore we must l>ear in mind that the two titlesan'uot necessarily co-exi.st- 4'nt, although thfv usually do exist together. Then, thirc being two titles, on what title was this recovery liad ? I maintaiu tliat it was had solely and exclusively on the paramounfe title of the United States, which, as to all foreign nations, is sover- eign, fnlly endowed in all respects. The first fact to which I wish to call attention is the very statement of this case. This case stood " United States vs. Great Britain." The award was in favor of the United States and against Great Britain. Now, prima facie, the title- recovered upon miist have been the title of the United States. There- fore the award itself Would be at first prima facie evidence that the- title on which that recovery was had was in the United States. Then, unless sufficient evidence is adduced to the contrary, the- award itself would settle it in the mind of any lawyer that it was ou the paramount title of the United States alone that it was recovered. This is capable of being rebutted by evidence ; because, as I have said before, the title of the sovereign and the title of the citizen are not antagonistic or adverse at all. But prima facie I say that the very a jvard itself is evidence that it was recovered on the title of the- United States. The second fact to which I shall call the attention of the House in reference to the title is that this award was had on three certain rules established by the Geneva tribunal. Those rules were with reference to the duty of a neutral nation in time of -u-ar. Now, there is no duty that one nation owes to the citizen of another as such. If war exists between two nations, and another nation recognizes the belligerent state of those two nations, it owes neutral duties to those nations. But the international duty of neutrality exists only between nations, and not between a nation and any citizen of another, iude- jjendent of his sovereign. Now, the very ground of the recovery of this award was that Great Britain had violated her duty as a neutral. Whatever was introduced before that tribunal for the purpose of establishing the amount to be recovered was merely evidence of the amouut of damages, and was not any ground of recovery. Just as in the case of an action of cov- enant being brought on a contract between two paj'ties,-the contract being one to build a house. You might introduce evidence of what another man's house cost to test the amount of damages resulting from the failure to carry out the contract to build. That would give no title to the house the cost of which had been given in evidence, as- it was only a means of finding out the amount of damages done on the breach of contract ; or, as we would say in this case, ou the breach of national relations between the United States and Great Britain. The ground of recovery before the Geneva tribunal was a breach of duty, which conduced to the destruction of property over which the United States had a paramount title. If there had not been a single vessel destroyed, the United States could have sustained its ground of action, but the amouut of dam- ages would not have been probably so great as that which was award- ed. The three rules ou which this award -^-as founded show that the ground of recovery was the breach of national duty, which no nation ever owes to the individual citizen of another nation as a citizen, sft The third fact is that the court was international. This court could not pass upon individual titles. No nation would appear before an international triliunal to contest with a citizen concerning any right that he might have. The character of the court itself indicates that this was a contest on the paramount title of the United States^ and not upon any individual title. And these insurance companies, or any person else appearing there and attempting to establish their title before this tribunal, would have been ruled out without a hearing,. as in fact they vrere ruled out. Every iijdividual title that -was there offered as a title was ruled out. But the arbitrators say, " We settle this question between nations and on national rights, not between individuals at all.*' The next fact that we would give in evidence is the instructions of Lord Russell in reply to Mr. Adams, which I quote from a speech of the honorable Senator from Ohio ; 1 have no doubt the quotation is correct : Her Majesty's govemmont cannot therefore admit that they are under any obli- gation ■whatever to make compensation to the United Statts citizens on account of proceedings of that vessel, (the Alabama.) The British government repudiated any obligation to make com- pensation to citizens of the United States for any injury done to them. " It must be something else than citizen's title' that niust be consid- ered here,'' was what the arbitrators said. If the question had been one of citizen's title there would never have been any recovery, as I shall demonstrate as I proceed further in my argument. It is said by some that the individual title was ruled out on account of that transcendental maxim (a relic of the Dark Ages) that a sov- ereign could not condescend to contest with an iudi\"idual. That was not the ground ; the ground was that the individual had no title which could be presented there. My next jiroposition will be that there was no municip.il title to any portion of this property that was destroyed after the moment of captuie. However, as to this at present. Her Majesty's government repudiated making compensation to any citizen in that award ; that is The ground upon which England acted. Then Avith reference to the United States, we find this fact also ap- pearing, that not only the court itself before which this trial was had, and the British government, repudiated all individual title, but the United States did the very same thing; lor in the communica- tion of iiistrnctions of Secretary Fish to those having this trial in charge the following jiassage occurs : The Prewrtent desires to have the Rnbject discnssed as one between the two gov- emmeiiis. and Le directs me to iu;;e upon yon strongly to secure, if possible, the a'A'aril of a sum in jaoss. In the discussion of this question, and in the treatment of the entire case, you will be careful not to commit the Government as to the dis- position of what may be awardt-d. It is possible that there may be duplicate claims upon some of the propei-ty alleged to have been captured or destroved. a.s in the case of insurers and insured. The Government wishes to hold herself fiee to decide as to the lights of the claimant.s' insuiers upon the termination of the case. If the value of the proneity ca^itured or destroyed be recoidfd in the name of the (Jovemment, the distribution ot the amount recorded will be made by this Govern- ment without committal as to \\ui mode of distribution. Now, if it had been on the title of any individual that this recovery was had, tliere must necessarily have been a committal of the Gov- ernm«'nt, because the Goveniiiient cannot violate ]trivate right — can- not take the ]ir<»])crty of one and give it to another. This i>riiiciple of law is so well kjiown that if the Govenimciit liad not stood upon the ground tliat sin- was recovering uiuui her paranidunt title that which was destroyed by tlic breach of neutral duties on the part of Great Britain, that couiniunication of Secretary Fish would never have been made by the United States as it was. Tliese facts siiHiciently establisli that the amount was recovered Ji|ion tlie paramount title of the United States, and not up state two seijarate bodies, who ]>retend to al)solute inain and her colonies, and |)t'e- viouH to the ackiiowledgnient of tlic indi-]>eiidi'Mi'i- of tin- latter by thi' t'nilfd States, the colonies were ileenied by us lielligerent nations, and entilli-il, ho tar as conceius n«, t!o all the sovereign riglits of war against their enemy. So tliat if a civil war is existing as a f.ir-t, unless there 1)0 soinecon- gre.s.sidiial legi.sladoii to changi! tlie hiw in ivlVieuce to it, (lie law of nations applies to and rules the case. 10 We will also cite the case of Phillips vs. Hatch, 1 Dillon's Circwit Court Eeports, 576, on this same principle: "Were the rules and doctrines of international law at all to apply to this conflict, or were the questions arising out of it to be wholly determined by the municipal law ? This general question first came bef oi-e the Supreme Court in'the Prize cases, a Blact. C35, 1862. It has since been frequently before that tribunal. (See The Venice, i! Wallace, '258; Mrs. Alexander's Cotton, ibid., 404; The Hampton, ,5 "Wal- lace, 372; "William Bagley, ibid., 377; The Ouachita Cotton, 6 ibid., 521; Hanger vs. Abbott, ibid., 532; Cappell os. Hall, 7 ibid., 542; McKee vs. tJuited States, 8 ibid., 1G3; the Grapeshot, 9 ibid., 129.) These cases all apply or declare to be applicable to the rebellion the general doctrines of public law which govern in wars between independent states. So that authorities in international law and our highest court have said that the laws of war were to be applied to this rebellion, as though it had been a contest between two iudependent nations. This being the fact, then what is the law of war with reference to property captured ? What becomes of the title when the property is captured ? is the next question. Let me say, without citing author- ities, that it is indisputable that whenever a vessel is captured from that moment the municipal title is divested, if the vessel is not within twenty-tour hours taken from the captor. If not taken within twenty-four hours there is no municipal title unless by the doctrine of postliminy, which is a war right and never obtains after peace has been made or an amnesty proclaimed, in existence whatever. When- ever those vessels were captured, there being civil war and the law of nations applying to that war, the title of the individual was for- ever divested unless the vessels were recaptured within twenty-four hours ; and this was not done with reference to any of this property for which recovery was had before the Geneva tribunal. We will cite the authorities to establish this before we proceed further. The first authority I will cite on that point is one perhaps not alto- gether unfamiliar. I quote from Blackstone's Commentaries, book second, page 400. Speaking of the title by occupancy, and the prop- erty as to which title by occupancy may be obtained, the commenta- tor says : It hath also been adjudged that, if an enemy take the goods of an Englishman, which are afterward retaken by another subject of this kingdom, the former owner shall lose his property therein, and it shall be indefeasibly vested iu the second taker. That is, if these vessels have been taken by the confederate cruisers and retaken by another citizen of the United States, the title would be indefeasibly vested in the second taker, and the prior owner's title would be forever gone : TTnless they were retaken the same day and the owner before sunset puts in his claim of property. "Which is agreeable to the law of nations as undeistood in the time of Grotius, even with regard to captures made at sea, which were held to be the property of the captors after a possession of tvventy-four hours. The next authority I will cite in stipport of that proposition is Hal- leck on International Law, page c'66 : "With respect to things taken by the enemy, the Eoman law considered them as withdrawn from the category of legal relations during the period of the enemy's possession of them. If retaken by their former owner, they became his by the re- capture ; but, if retaken by the State, they were considered as Viooty or prizes of war, the oiiginal light of property being extinguished by the intervening ho.stile possession. Then again on page 870 : But the diificu'ty of recognizing things of this nature — Speaking of personal property — with any degree of certainty, and the endless disputes which would spring from a revendication of them — 11 As -^re fiud -^vell illustrated in this case — have introdncefl a contrary practice in modem times: and the title of the former owner to all booty is considered a« completely diveste d liy a fii-m possession of the captor of twenty-four hours. Then he gives the law with reference to real property, whicli is not relevant to this case. The next authority we cite ou that proposition is volume 3 of Phil- limore's International Law, page 504 : "With respect to rn/,vahle property or prize captured in a war by sea. all such property is vested in the captor. If he part with- them to a neutral, the formtr proprietor is not entitled to claim them. Then again, on page 509 : Byntershock. however, agrees with Grotius that movable gooAs are now. without distinction, subjects of prize, and dive.sted of the privileges of postliminy. As goods captured from the enemy, he argues, vest in the captor, it follows, when re- captured, the J' vest iu the recaptor. The exception to this we will state in a moment : That the doc- trine of postliminy extends the time within which the recapture oc- curs, l>ut never extends beyond the re-establishment of peace. An amnesty in civil war is the same as a treaty of peace in case of foreign war. and that amnesty occurred before there was any recovery of this property back. The next authority I cite is Hopnor vs. Appleby, 5 Mason, pages 75^ 76. I read from the opinion of Judge Story : The orisinal ownership of the enemy is entirelv divested by the capture; and though a title good against all the world may not be conveyed to a neutral vendee by the cajjtors unless there be a regular condemuatioiyis prize, or a treaty of peace which coutiniis. by implication, the existing title and state of things, yet thi» does not interfere with the geneial right of the captors to sell the property or dis- pose of it as rightful proprietors Jure belli and possessors de facto. Then with reference to the effect of destruction being the same as that of sale : The cai)tors had a plenarv dominion over the property by the capture, and niight. 80 far as she was concerue'l. have burned or de.-tiojed it, or disposed of it iu any other manner which they pleased. We claim that these authorities establish that by the capture what- ever municipal title exLsted as to any of this pro]ierty was totally and entirely divested. Then on what ground docs tlie doctrine of subrogation ou which the insurance comitanies claim stand? They are subrogated they say to the rights of the owner of the ves.sid. I admit it. If there l)e any f-pcs rtciqurartdi the insurance companies are rightly by law subrogated to it ; but if there be uo eyes recttijerandi^ they are not subrogated. Now, if tJie title, was utterly and entirely extinguished as to the owner of the ve.s.sel from the time of her capture, what was there of apes rtx'iiiHfdiuli as to which the.se insurance companies can be subro- gated ? Th»-y insinx'd under tin- laws of war ; they took the risks of a state of war. as well its laws as its arms. Yon might conceive one of the insuiancf agents going to a sliip-owncr and stating the price of insurancf. The shiji-owner might object that the price was too high. The agent would reply that they l)ad to take tlie risk of the property being ca])tnred, and if it was captured tiiere woubl be no spes reeuptraudi. That is doubtless the way the insurance agents talked, and it is good law. Tliey assumed The risks f)f war when they charged war premiums. This is one of the very risks they bargained for, because the law of the laud euters into an«I constitutes a jiart of every contra'-r. Then these parti<'.'<. knowing that in the event of cajiture (he title of iho ow!Kr wiis f.uvver gone, charged for that and received llieir i)ay 12 for it, so that they liave ueitlier law nor equity ux)ou which, to base their alleged right of subrogation. Subrogation never exists as to a mere moral or imperfect right. We may illustrate that in this way: A wealthy father might advise his son to eater into some commercial enterprise regarded as likely to be remunerative. The son, upon the advice of the father, enters into the undertaking and perhaps insures the vessel in which he ships his cargo abroad. That vessel is lost. In that event would there be such a thing as subrogating the insurance company to the moral right which the father might feel to be his duty to recognize in reference to re-imbur.".iug his sou ? Subrogation does not exist in regard to moral right. These parties made their contract on the very basis that in case the vessel was captured their spe? reciiperancli was gone. They made a« war premium lit for that risk. They have neither in equity nor in law a right to claim anything more than any other citizen should claim. That is, if they have actually lost they shall l)e re-imbursed. The Treasury Dei)artment of the United States under all circumstances has always denied that insurance companies were entitled to subroga- tion. In support of that I quote from page 133 of the Digest of De- cisions of the Second Comptroller, section 974 : Certain steamboats wkile impressed into the military service of the Uniteil States vrere destroyed by tire, without any fault or neglisjence of the owners. The lisks taken by the underwriters were liquidated and paid for, and claim by them, as sub- rogated to all the rights of the assured, made under the act of March 3, 1849, for the amount thus paid ; but it was held that the piinciple of equitaijle subrogation ap- plied only in favor of the Government, the underwriters, as for the owners, having by their i)olicies of insurjpce pro tanto agreed to incur the risk. Therefore, as a fact, if they had taken pains to inquire indej^end- ently of the law which they were bound to know, they would have found that subrogation was never recognized in such cases. And here it may not be malapropos to refer to a discussion which occurred in the Senate. The honorable Senator from Ohio, [Mr. Thur- ' MAX,] for whose character and judgment alike I have a regard closely bordeiing upon reverence, I apprehend was misled somewhat in his judgment in this case by a case which he there cited. And the same view was taken by the honorable chairman of the Committee on the Judiciary [Mr. Kxott] in this dicussion. That was the case of Com- egys vs. \'asse : A ship that was insured was illegally captured by the Spaniards. In the course of time Tasse became bankrupt, itc. That is, the ship was Wegnlhj captured by the Spaniards. If in time of peace a nation with whom we are at peace captures a vessel be- longing to a citizen of the United States, that is an Illegal capture ; but if the vessel is captured by a nation with which we are at war, then it is a letjal capture. This case of Comegys vs. Vasse turned upon the legalty of the capture. The right of subrogation was admitted in that case because there was a distinct, living, tangible right and title in the party who had been wronged by the illegal capture. The rul- ing in that case is entirely iuaiipropiiate to this, in that under the law of nations this was a legal capture, and divested the municipal title. Whereas in the case of the Spanish capture that was an ille- gal capture, and the municipal title continued to live just as much after the cai>ture as before. It was a' chavige of property in possession to property in action only ; the right of property existed the same after the illegal capture as before. But the right. of property did not continue to exist in the case of these vessels captured by the confederates, because that cai)ture was made in a state of war. I think, therefore, the Spanish case misled to some extent the judgments of those who are nsnally so thoroughly, informed and for whose opinion we hare such unbounded respect. We claim, then, that there was no municipal titip left in anyone as to which there could be any subrogation. Then how does that award stand ? Just in this position : it was recovered for a breach of neutral duty, recovered by the United States against Great Britain, not upon any municipal title, but upon the national paramount title of the United States as a sovereign. Then Avhat should be done with this money ? The nation shonld be simi)ly and fully just ; if tb^re be one single" dollar that should be paid back to Great Britain it should go back there, because justice is our highest duty. But there is no evidence and no inference to be derived from anything that has trans- pired in the present examination astoany injustice having been done to Great Britain. We are to assume, as we would with reference to any conrt, that those who acted upon this case considered it care- ftiily ; that they were honest and competent, and that they rendered judgment for no more tlian was right, l^nless somebody establishes affirmatively that the tribunal did give judgment for more tlian was destroyed, vre owe no duties to Great ^ritain so far as that question is concerned. Then as to the claims of citizens, the fund is left in the possession of the United States to be distributed to those who according to the policy of the nation and the principles of natural justice would be entitled to receive it. The national policy is to encotirage commerce. I'liis fund is just as free for distribution as are the vessels captured by United States men-of-war. The capture of any prize by a United States vessel during war vests the title in the United States; but we have passeil certain laws by which the Government distributes this as prize-money among seamen in recognition of the meritorious serv- ice of thfise whose valor has won it. This is our policy with the view rotectioM,. 14 which it failed to give them. Hence tliey are entitled to be remuuer- ;ated. Those who lost vessels which were not, as they say, incul- pated — but in my v^w of the case it is unimportant whether they were inculpated or excuTiiated, because there is no title to this fund in any citizen — those who lost vessels which were destroyed by these cruisers before they were inculpated were just as much invited to enter into this <50mmerce as those that were destroyed by cruisers a f ter they were incul- pated. We might take a single illustration, the Delphine. Before the Shenandoah passed into Melbourne she was alleged to be exculpated;' after she passed into Melbourne and came out she was inculpated. ' She destroyed the Delphine perhaps twenty-four hours before she went into Melbourne ; and twenty-four hours afterward she de- stroyed another vessel. Now the duty of the Government toward the •owner of the Delphine was just as high as toward the other vessel. The right of protection was just the same in each case. Both par- ties had rendered the same allegiance ; both incurred the same loss ; hence natural eq)iity says that they should receive the same com- pensation. Therefore I would from this fund make compensation to all those who actually lost ships and to whom the United States owed protection. Then again, with reference to the war-premium claimants. The honorable chairman of the Judiciary Committee, in his remarks on this subject, said that this war-premium business was a bet on their part. Not at all; it was a contract, with all the relations, i^rovisions, and incidents of a contract. He says it was entered into in ordef that the owner of the ship might sleep soundly at night. But the insured gave his allegiance to his Government that he might sleep soundly at night. Perhaps he took his gun upon his shoulder and risked his life that he might sleep soundly at night. Why, then, should he be required to pay this additional sum that he might sleep soundly at night? For he has paid all that anybody else had paid for the same thing. But it may be alleged that this was a voluntary payment. If it was a voluntary payment and a reckless one, it would not be justifiable to re-imburse him; but if it was a voluntary payment, such as an ordinarily-prudent business man would regard as justifi- able and necessary and warranted by the circumstances, he had a Tight to make this payment and has a right now to his share of this fund, because the Government owed to him this i^rotectiou which he had to provide for himself. Or we might arrive at the conclusion by another way. If the doc- trine of subrogation — which as a legal doctrine does not exist in the case — be recognized, it might be said to the insurance companies : " Why not subrogate one step further and make compensation to the man who lost instead of him who made the money ? Why not sub- rogate the man who re-imbursed you to your right ?" But the true ground upon which to place this question is that of the correlative duties of allegiance and protection: and these men were eiititled to * protection without paying their war premiums, so that they might sleep soundly at night, as the honorable chairman of the Judiciary Committee has stated.. So that these two classes of claimants are entitled to their share of this fund, and entitled justly. Then the third class which my amendment would leave provision at some future time for bringing in as a separate element are those who suffered actual physical or bodily loss inthese transactions. He who lost a hand or a limb is just as much a sufferer as he who lost a "vessel, and ought to be re-imbursed just as much. Hence my amend- ment provides that after paying the two classes to which I have ad- verted, the balance shall remaiu in the Tceasury to be distributed by If) future congressional legislation to those other parties who have suf- fered direct losses from which the Governmeut, if able, should have protected them. These are the views we have with reference to this whole transac- tion : tirst, this money was recovered upon the paramount title of the nation, and upon no iudividiuxl title ; second, there was no mu- nicipal or individual title in existence at the time of its recovery, and, as a consequence from that, there can be no subrogation; and third, the conelative duties of protection and allegiance require th^ that class of men who sufiered from these cniisers, when others did not, should have this indemnity extended to them in order to repair their loss, because we did not prevent them from suffering it. So we claim, then, this is the course which should be adopted. We stand as a sovereign, above every muTiicipal law or technicality. We own this fund simply to do right. The nation, according to the an- cient view of a sovereign, was endowed with the right or prerogative of personal dignity. That is the special pre-eminence which the sovereign lias above all other persons and the ordinary course of law by right of sovereign dignity. We stand above the ordinary course of law to look ui)ou this whole field in its full breadth, standing, as it were, as the vicegerent of the Creator himself to do just what is right and make whole every one who hae lost in this transaction. We are not to view it through any translucent medium of municipal law, but through the transparent ether of absolute distinct natiu'al justice. We ask this House, then, to adopt the amendments we have intro- duced, so that instead of turning over to insurance companies who have already made a large amount of money, or if they have not, the pre.seut law re-imbnrses all they have lost, leave it to those who have suffered absolute personal lossorany other direct loss which may have been or may be shown to have taken place Mr. I3LAXD. I ask the gentleman from Pennsylvania to explain what is the difference between the proposition he advocates and the present law and the act of the last Congress. Mr. JEXKS. The act of the last Congress only provided that those whose vessels hafhat they have not been paid back ? Mr. .JENK.S. Of course this billonly i)ays the actual loss to war- premium men. As I view this, there is no right in any m.ui to claiiu anj' profit upon this wliatever. It is finly the loss which sliould ll(^ re-imbursed, because profit must be the result of li*gal right, and, :ih there is no Irgal right, nothing Imt impfi-fcct riglit for any one to go upon or iuf)ral 16 Mr. JENKS. Tliey paid for some of them, and thoy claim the whole fund in consideration of having j>aid for them. Mr. MILLS. Do they claim the whole fund in eonsideratioii of having paid for part of them f Mr. JENKS. For vessels destroyed by the inculpated vessels which they had insured. Mr. MILLS. Do any owners' of any of the vessels which had been insured and received their insurance claim any part of it? Mr. JENKS. They do not, as I understand it. Mr. MILLS. Only those who were not insured ? Mr. JENKS. Only those who were not insured are claiming any portion of the fund, as I understand it. Mr. JONES, of Kentucky. I should like to ask the gentleman a (jnestion. I understand the gentleman to have said in the course of his remarks that at the time these commissioners met at Geneva,, where they determined upon the amount due from the British gov- ernment to the Government of the United States, these individual claims had not been presented ? Mr. JENKS. I say the individual titles were not considered. It was only upon the paramount title of the nation they passed, and. there was no individual title before the tribunal. Mr. JONES, of Kentucky. Bat there must have been some consid- eration of the various claims made. Mr. JENKS. Only as to the value of the vessels. Mr. JONES, of Kentucky. Before the amount was fixed how did they arrive at any amount which was supposed to be due from the government of Great Britain? Mr. JENKS.. They fixed it by the value of the vessels which were- actually destroyed. Mr. LORD. And their cargoes. Mr. JENKS. Yes ; by the value of the vessels and cargoes de- stroyed. Mr. JONES, of Kentucky. Did they not take into account indi- vidual claims ? Mr. JENKS. They never did : as I vmderstand it, they only took into account the nation's claim by virtue of her paramount title, and no individual title was before that tribiinal or could have been there. And tlie)'e ivas tio indiddual title in existence to present there. That is what I have endeavored to demonstrate. Mr. JONES, of Kentucky. I understand that a great many indi- vidual claims have been admitted and agreed to be paid. Now the gentleman contends, as I understand him — for I did not hear all his remarks — that if there is a balance of this amount of fifteen millions and no farther claims are admitted to be just and due, then it should remain as belonging to the United States Government ? Mr. JENKS. It would remain, provided there are no losses that the United States ought to compensate. The SPEAKER pro tempore. The time of the gentleman from Penn- sylvania has expired. ^ Mr. JONES, of Kentucky. Ju8<^ allow me another question, "ap- pose there should be no claim and that a balance was left of four or live million dollars? Mr. JENKS. It would belong to the United States, unless some other jnst claim thereto should appear. Mr. JONES, of Kentucky. Docs the gentleman l^old that it should be covered into the Treasury ? Mr. JENKS. I hold nothing about that now, as the fact does not, yet appear. THE GENEVA AWARD. SPEECH OF HON. ELBPtlDGE G. LAPHAM, OF NEW YORK. IN THE HOUSE OF REPRESENTATIVES, JULY 6, 1876. » ♦ «- WASHINGTON 167C. SPEECH HON ELBRIDGE G. LATHAM. Oil tbt- bill. ()1. 11. No. -2683,) reported bvtlieComniittoeou till' Ju.liciary, forlbedis- tributiou of the uiiappropiiated moneys of the Geneva award. Mr. LAPHAM. Mr. Speaker, it is uot my pmpose to enter upon a detailed exaiiiiuation of the preci.se mode in whicli the remainder of the Innd in question shall be distributed by Congress among the various classes of claimants thereto. Agreeing in the main upon that question with the views stated by the majority in their report, I shall briefly discuss the question as to the status of this fund and the gent-nii duty of the (ioveniuient in respect to it and its distribu- tion. Three impurtaiit ends to the Government of the United Statt s were aimed at and sought to be attained by the Geneva arbitration : First. An acknowledgment on the part of Great Britain that she hail been guilty of a violation of the rights of neutrality and an ajjology therefor. Seccccnil>er, l-'TO, rcconnnendcd flic piircliasc of all iiMlividnal claims in the following language: I tlieiefore reroMimeiiil to ("iinjjreM.s to aiitliiiri/.e the !i|ipiiiiitiiic'ut ot a coiunii.s- fion to take iiioiit nt tlm aiii'iiiiit and tln^ ownershiit of ilicse. several claiiiiN. ' ' " and that aiitliority he j:ivi-ii foi' tin- si-ttleniiMit of thesr claiiiiM hy the I'niled Slates, HO that the ( tovcniimnt Hhall have tin- ownerHliip of the pri\ ati; elainis, as XM'll ai4 lilt' reM]MiiiHible eoiilKd of all the diiiiaiids a;^ainsl (irrat JJiltaiii. JIaro- vided for in its distribution. THE GENEVA AWARD. HONEST FAITH THE NATION'S SUPREME NEED. SPEECH OF .^AAioT, LIS, M. C, IX THE HOUSE OF REPRESENTATIVES, JULY 1, 187G. W ^ S IT I 2Sr Gr T O N" . 187G. SPEECH OF HOX. BEXJAMIX A. WILLIS The House having undev coiisitleration tho hill (IT. U. Xo. 268")) repovteil by the Committee on the JmlicLary for tho di.stribiitioa of tho uuappropriated moneys of the Geneva award — Mr. WILLIS said : Mr. Speakkii: The discussion iiiangnrated l)y my honorable c'(d- leaguc, Mr. LoiU), possesses rare interest, far exceetling that -which any qnestion of local concern can excite. It relates to action on the part of the United States Government bearing npou the disposi- tion of a trust fund placed in its possession by a\yard and decision of arbitrators pursuant to the treaty of Washington. Fidelity to in- ternational obligations, the maintenance of national honor by strict regard to the behests and conditions imposed by such a\vard and decision, are tlie grave questions to be determined by the action of Congress upon the pending bill. It becomes us to accept as an ap- propriate rule of our conduct in this matter the decision of the Su- preme Courts pronounced by Associate Justice McLean in these words : The action of a sovoreiini state will ho characteiized hy a more sorni)nlous re- gard to .justice and l>y a lii;iher sense of morality than belonijs to the ordinary trans- iictious of iuiUviduals. Noble words these and fitly spoken then, but far more needed now, when vice is so rampant and corru]»tion so thoroughly infused in all the clianiiels of commerce and government that sinnile virtue has scarcely a single worshiper. STATEMENT Ol" THE CASE. Mr. Speaker, my honorable colleague has aptly stated what occurred before the Judiciary Committee, the classes of claimants who i)re- sentedtlu:mselves, and some of the facts whicli serve to illustrad' tho history of what are known l)y the generic ten not " thcVlabainailaiins." He has failed, however, and that, too, utterly, to give place and prom- inence to tho.se essential facts which constitute the irs (lentw of tho ca.se, and out of which arise tho legal an coahid at Kn- glisli liail)ors; they ••oniniitti'd Cniled States agent, in reply to the diKjtatcii already read : ] liave hiiil your telegnuns lii-forc the PreHideiil, wlio directs me to Hny that lii« acceptM the di'claratiiiii of tlie tribunal um itM jud::m<'iit ii)ion a ijueHtiun of putdic law which be felt tbiit tbe iliteK'st^ of Inilb ^ovei iiiiients lei|nil'ed should be de- cided, and for the di'tenilinat ion of wliicli lu! luul felt it iiii|iortHiit to present tho ciaimH refeiTid to for the ]iui-|ioHe of tukin^ the ojiinioii of tin; tnbuiiul. You will note the languag'- of Ihisdispatcli. Tlie rresideiit iucepts a dcclaial ion of the tiiliunal's j'ldgment. Ife felt il iinpoitaiit to 6 present tlie claims referred to. But note furtLicr. The same tele- gram contains this unmistakable language : "We had no wish for a pecuniary award, but desired an expression by the tribu- nal as to the liability of a neutral for claims of that character. (Meaning indirect tlaiuis.) Tlie President therefore further accepts the opinion and advice of the counsel as set forth above, and authorizes the announcement to the tribunal that he accepts their declaration as determinatiYe of their judgment upon the important question of public law upon which he had felt it his duty to seek the expression of their opinion ; and that, in accordance with such judgment and opinion, fi-om henceforth he regards the claims set forth in the case presented on the part of the United States, for loss in the transfer of the American commercial marine to the British flag, the enhanced payment of insurance, and the prolongation of the war, and the addition of a large sum to the cost of the war, and the suppression of the rebellion, as adjudicated and disposed of; and that consequently they will not be further in- sisted upon before the tribunal by the United States, but are henceforth excluded from its consideration by the tribunal in making its award. •* FISH. After snch a declaration from the Chief magistrate, in terms so ex- idicit that, had ^ve not been familiar with past legislation on this sub- ject, had we not read the report or listened to the argument of mj' honorable colleague, we would have deemed it impossible for any in- telligent man to insist that sifch indirect claims had been waived or withdrawn. Wo will go still further in this direction. What did the tribunal actually do upon the reception of the foregoing dispatch ? You will find in protocol 7— the same being a record of the proceed- ings of the 27th of June, ld72, — that Count Sclopis, on behalf of all the arbitrators, then declared that the said several claims for indirect losses, to wit, (see protocol C:) First. The loss in the transfer of commercial marine to the British flag. Second. The enhanced payments of insurance. Third. The prolongation of the war, and the addition of a large sum to the cost of the war and the suiipression of rebellion — Are and from henceforth shall Ijo wholly excluded from the consideration of the tiibunal, and directed the secretary to embody this declaration in the protocol of this day's proceedings. Mr. Speaker, before this determination was had, before it was ac- cepted as binding and conclusive by the high contracting parties, Cushing, Evarts, and Waite had exhausted all the resources of their lore, their logic, and their eloquence, far overmatching their competitors, in enforcing the justness of these indirect claims, they were attent- ively heeded by willing, admiring judges, but to no purpose ; the ar- bitrators calmly and firmly rejected the claim. The United States acquiesced in their rejection ; acquiesced in the understanding that our Government was not to recover money for such a purpose. The arbitrators, in arriving at their judgment respecting these claims, were controlled by rules contained in the sixth article of the treaty of Washington and such iirinciples of international law as are not inconsistent therewith. The rules are already quoted. IMMORALlTi- OF PAYIXG REJECTED CLADIS. Now, we have the liability of the British government in the prem- ises clearly defined; determined acceptably to both governments. The indirect claims are distinctly announced as not being sustaiualdc either by virtue of tlie treaty or of any principle of international law ; and yet we confront a demand that moneys obtained on account of claims which were specifically allowed, which in the high court of nations had been solemnly adjudged as proper, upon which the award itself was predicated, shall be appropriated, now that we have by fraudulent contrivance and device ol)taiued control of it, to tlie pay- ment of claims admittedly unfounded, and which hj' solemn decree, pursuant to solemn treaty, have been solemnly adjudged illegal and ■without wanaut in international law. What words can be employed in depicting the infamy of such an act ? The nation, exultant that such claims had been declared illegal and boasting the advantages to accrue from such an adjudication, through its Congress enacts a law in direct antagonism to the judgment of the tribunal and in violation of every sentiment of honor and justice. ^^^ly, the United States disdainfully stated they desired no pecuniary award on their account. In the correspondence the Secretary t)f State (see volume 11, treaty of Washington, page 476) writes that we should be content with an award that a state is not liable in pecuniary dam- ages for the iudu'cct results of a failiu'e to observe its neiitral obli- gations. Any other decision would have been prejudicial to the interests of ourEepublic. A nation whose sphere for the next century will be neu- trality and belligerency wiU bo its exceptional conilition. CHAKACTEK 01^ THE MAJOKm' rKOrOSITIOX. Mr. Speaker, the turpitude of the pending bill amazes one who has any moral sense at all : obtaining money in trust for the payment of claims specifically allowed, and then employing it to satisfy claims specifically disallowed. The sophistry of the report which tends to justify its c(mclusions is thinner than a gossamer wing. It urges or tends to urge that these claims were not adjudicated but abandoned; that in consideration of their abandonment the United States received certain advantages in the negotiation, and that thereby the citizens who paid enhanced premiums of in.surance made a sacrifice which it became the duty of the Government to requite. This reasoning is delu- sive, were it true in itself. It would have no applicability ; for sums of money would be diverted and appropriated contrary to the letter of the trust money intended for other definite purposes. ISut this is the admirable logic of the rejjort ; and if the arbitrators decide in favor of the indirect claims, it will inure to the advantage of a few gentle- men who claim war premiums, but will prejudice us as a neutral na- tion and injure thereby forty millions of our people, if the arbiti'ators decide adversely to the indirect claims. Why, it will benefit forty millions of ]ioople, and it will not inter- fere with tlie rights of the gentlemen who claim war prcniinins. We will take care of them, say the .Judiciary Committee; (hey shall be beneficiaries, law or no law. Happy claimants of llie war prcniiums ! Ingrates if you do not jiraisc, tlu; l^ord for such /.e.-iloMs friends! Mr. Speaker, perhaps I have dwelt overlongon tlie{|uestion of good faith upon the part of the Government bt-fore stating with jutipor j)recision the particular fjuestions whicli are to be settled in this dis- cussion. The diaraeter of tmr claim against (^reat iJritain, the mode of determining damages due the, Uiiiteetion w;is a deter- mination for(!ver barring such claims, as the language of the treaty exprcsKCH it, are facts incontestably established. TIIK nKI.ATIOX OK THE OOVI.nXMICNT TO Till'. FrKK. The trusteeship of the Governnienl is a fact no less susceptible of demonstration, so far as these claims for money awards are concerned. 8 The money claims of the Government ^ere rejected, as already in- dicated; they came nnder one or the other of the following heads : For transfer of commercial marine to the English flag. For additional cost in suppressing rebellion. For expense in pursuing the cruisers. The United States, as already shown, submitted these claims; they were adversely determined by the tribunal, and such decision rejoiced in by oui" Government as one specially favorable to its probable posi- tion of neutrality. The Government no longer had any pecuniary interest in the controversy. Such decision was not the result of a bargain, of shrewd calcula- tion — a tacit waiver for an equivocal consideration ; it was the delib- erate judgment of illustrious judges, representing the majesty and dignity of empires, ujiou certain issues i»resented, honestly and fairly, according to the rules provided in article 6 of the treaty of Wash- ington, aud the principles of international law not inconsistent there- with. Tables of American claims were presented and accepted as elements of damage sustained by citizens of the United States. Details of evidence were analyzed i n determining which particular cruisers should be inculpated and which exculpated. Extreme i>articularity in the findings is a feature of the award. No money award was made to the nation. Any moneys intrusted to the Government Avere intended for the satisfaction of claims due to American citizens, as determined by the tribunal. SUMJI.VnV OF POINTS DECIDED BY THE TRIBUNAL. Let the award be produced ; let the decision be exhibited. After first declaring certain vessels to be inculpated, holding that Great Britain in such instances failed by omission to fulfill duties prescribed in the first, second, and third of the rules established by article 6 of the treaty of Washington, they decide that the United States are not entitled to indemnity for costs of pursuing the cruisers ; they decide that prospective earnings cannot properly be made the sub- ject of compensation, inasmuch as they depend in their nature upon future and uncertain contingencies ; they decide that all double claims for same losses shall be set aside, and also all claims for gross freights, so far as they exceed "net freiglits ; " that it is preferable, in accord- ance with the spirit and letter of the treaty of Washington, to adopt the form of adjudication of a sum in gross, rather than refer the sub- ject to a board of assessors, pursuant to article 10 of the treaty ; that $15,.50O,00O in gold be jiaid as indemnity by Great Britain to the United States for the satisfaction of all the claims referred to the considera- tion of the tribunal, conformably to provisions contained in article 7 of the said treaty; that each and every one of the said claims, M'hether the same may or may not have been presented to the notice of, or made, piefeiTeurityl How splendid such diplomacy! It would be olitaining money inidcr false jirctenses. Should an individual in ordinary business resort to such mctliods he would b(; condemned to social outlawry. rr.F.A OF GOVERXMF.XT OWXEKSUIl" INVAl.U>. Mr. Siicaker, wrongs arc rarely urged unless fortilied by ))lausilile pretext. Not so in this instance. A pretext is set forth, but it is utterly wanting in plausibility. It consists in the allegation that the payment of the money in a gross sum vested the same absolutely in the United States, subjtict to their arbitrary disposition. This position is not tenable for an instant. First. The act ual proofs, weighed by the arViitrators and accepted as pertinent to the issues, having reference only to tlie losses of private individuals l)y certain cruisers, namely, the Alaljama and her tenders, the Florida and her tenders, the Shenandoah, after leaving Melbourne, give exact sliape and direction to the award. Second. The language of the American case, where the exact reasons are stated why an awarded a sum in gross was desired, as follows : They panirstly liojn- tli:it tlie- tiiliiiiial will oxoicise the power eoiifeired upon it to iiwald .1 .Hiiiii, in trioss. to Ijf piiid byCircjit Jiritaiii to the United States. Tlio injuries of wliich thi- Uuiteil States eoiiiplaiu were eoiiiniitteil many years sinco. Tlie original wnmjrs to the suti'eiers Ijy theaetsof the insuij^i'iit eiiiisers liave lieeu increased by tlie ih-lay in niakiiiir reparation. It w ill he unjust to impose further delay, and the i-xiiense of jiicsentin;; claims to unoflier trihuiial. if the evidence •which the I'nited States have the honor to )iresi'nt for the consideration of tluwo arbitrators shall ])rove to be sullicient to eiiabh' tlu-m to determine wliat sum, in grosH, would be a. just compensation to the t'niled States for the injuries ami losses of which they coiii]daiii. (Case of the I'nited St.ites, iiart ublic ; its advantages and results ruthlessly and lastingly lost to us all througli our future years. Mr. Speaker, the peculiar relation of our Government relatively to this award and its citizens has been jdainly demonstrated. If tlio Government is a trustee, who are the vcnliii que truHln — a question of strict law not dependent on discretion, but nevertheless eiiuities are not absent. It should be judicially determined. From the beginning this has been the error of our Government; instead of directing specific claims to be paid it shouhl have authttrizcd a comi)etent court to de- termine the validity of all claims, subject to the treaty of \\'ashing- ton and the jiroci-edingH of the tribunal at fJeneva, tugether witlithe decision and the award f!iei-e made. We woulil then have escaped an unse«')nly sl(; in the lobby. Suitors would have ]>lied courts, where they belong, insteail of Uegislatures, whose business it is to make, not to administiTainl construe the laws. Having given a com- petent court jurisdiction, all else t-ouhl have Ijeen better eing, first, those wlio owin^d the veHsels and cargoes ilestroyeil and, second, those subrogated to their ri gilts. Ill tiiis remarkable discussion of a question as to the execulioii of a 12 trust defined accurately and specifically, none among those advocat- ing a violation of the trust has disputed the validity of the claims just indicated. The particular claims i)roved resulted from the destruction of ninety-four vessels and their cargoes by the Alabama and Florida and their tenders and the Shenandoah after leaving Melbourne ; the value of tlie vessels, their cargoes and earned freight ■with interest thereon, the arbitrators after careful computation an- nounced to be $jl5,5(H»,000, and made the award accordinglj'. Now, it seems incredible, in the presence of such an adjudication, to sup- pose any gentleman could doubt that the owners of these vessels and cargoes, or those who, having paid the losses, became subrogated to theirrights, are entitled to the award ; that the moneys so paid to the United States are held in trust for such a purpose. The former part of the proposition happily escapes the censure of the Judiciary Committee, that the owners were so entitled. Will the legal skill and wisdom of the Judiciary Committee enlighten us as to the distinction of owners and those subrogated to the rights of owners ? I suppose it is no needful labor to expound the doctrine of subro- gation and point out its application in this case. Such right on the part of underwriters was insisted upon by American coiinsel before the tribunal, admitted by Sir Roundell Palmer, attorney-general of England, and Chief Justice Cockburn, the English arbitrator. No good, conscientious lawyer will deny it. When a merchant makes a contract of insurance with a company he agrees, upon being paid for his loss, to abandon everything con- nected with the thing insured to the insurer ; to assign to him all right of reclamation-^legal parlance, the sjycs rcciqu-raiidi, the hope of recovery — of the thing lost or any damage from the tort feaser who occasioned the wrong. The case reported (8 Johnson's Eeport, page 23T, New York) cited by Chief Justice Story with approbation, in the case of Comegys is. Vasse, (1 Peters, page 193, United States,) sets forth the doctrine intelligibly and with an aptness so much in iioint that its full force will be acknowledged. One question was whether the jury was at liberty to deduct from the total loss the value of the spes recuperandi. The court held they they were not. Chief Justice Kent said : If Fiance should at any future period ajTrce to and actually nial;e com])ensation for the capture and coudeuination in question, the Government of the TJuited States, to whom the consideration would in tlie first instance be payal)le, would become trustee for the paity havint; tlie ecjuitable title to the reimbursement, and this would clearly be to the deieuremiums aud losses occa- sioned by exculpated crui.sei-s should, in their horror for constitutional tribujials iu whose temi>les alone justice is secure, take refuge iu this House, and by appeals to false sentiment persuade gentlemen ■who.se manifold duties ])revent them from critically examining the legal features of the question to pronounce judgment, in wanton dis- ' regard of moral, legal, and international obligations. There is but one conclusion which an honest judgment can reach: that is that the award belongs to the owners of the ninety-four ves- sels and cargoes destroyed, or to tho.se who, having paid the owners, are subrogated to their rights; and if the Government in the distri- bution of the award swerves one hairs-breadth from the faithful fulfillment of its trust it will bt! guilty of an awful crime against morality, and we will learn but too tardily that '•righteousness ex- alteth a nation." Mr. Speaker, appeals to ]irejudice in determination of a legal (|ucs- tion where the rights of all the parties are finally adjudicated are un- worthy this House and should be vi.sited w ith pitiless censure, more especially when unfounded. To whom would these moneys, if paid to the insurance companies, go? Let us see. The amount of insurance claims aggregate the .sum of S4,002,i'7'2, iiultuling interest. Mutual insurance companies claim .vJ,(i:M,'j:54 ; stock companies claim .si, :{()■', (i'Jlt; ten stock couii)anies claiming §(((»«i,(;'Jl have failed by rea.son of great fires in Chicago aud lUtston, All tlie mr)neys received by tlie bankrupt companies will relieve tlie necessitieH of tliose who sufi'ered by these severe fires. Will my honorable friends of the .Judiciary Committee urg(^ ('ongres.s by caju'ice and stretch r>f authority to tuiii aw;iy these fnuds from that undeserving class, all for the sake of equity and just ice ? Jtut, Mr. ."^pe.iker, n<'arl.\ tlnei-fonrt lis if not quite .ill of those claims are yirefitired by unitn.-il insui'anceconi]ianies ; they, by organ- ization, volnntiiry ;i.ssoci;ition, combine ;ind insure; I henisel ves against loss. Everything they reccrive will be divided among ship-owners and cargo-owners. ])o fliey morally, of|uitably, or logic.illy shift their jiosition as owners when by this voluntary arrangenieiit they 14 insure themselves ; are they less owners than before ? Is it not a fact that losses and yrolits by reason of a species of partnership are mu- tually borne and losses so divided as to operate without liarshuess upon individuals? Do not the gentlemen who made the majority report understand that these moneys, if i)aid to insurance companies, would be returned to the very parties who paid premiums and war risks during the rebellion ; during the period when deiiredations were committed ? In New York State the statute provides for such a distribution. These are the unconscionable parties whose devoted heads the legislative wrath is to be poured. Such are the people whose rights, more ancient than the Republic, coeval with civilization, are assailed by the majority report of tlie Judiciary Committee. No sophistry can mislead, no misrepresentation betray ; the facts are i^alpable. But infinitely more important thau even these rights is the honor of the Republic. Mr. Speaker, it is conceded that the payment of war premiums can be justified only by the plea that the ownership of the award vests absolutely in our Government. They were excluded from all consid- eration hy the tribunal ; no proofs were proftered. Now I beg to in- quire what special ground there is, what reasons there are, what cir- cumstances which sanctify these claims ? We are told they maintained the honor and dignity of the flag ; that through their inflexible patriotism our commerce survived the rebellion. Indeed, sir, they are a class of heroes whose history is un- written. Our annals should blaze with the luster of their deeds, for I would gladly yield devotion and homage to valiant men, to patriots. What did they do ? Well, they paid excessive rates of insurance, and in doing so they exercised their own volition ; they entered into a contract without any one dreaming that they were fit subjects for the issuance of a writ de Innat'wo inquirendo. If they met with losses they were paid in full by the companies; if not, it is fair to assume these disinterested gentlemen made profit. I doubt whether they ever indulged the spes recuperandi ; the thought, the vulgar, gross thought of indemnity never entered as alloy in their pure iiatriotism. O, np! this was an af ter- thought ; and if the Judiciary Committee are potent enough it will eventuate a lucky thought. When gentle- men are terribly overweighted with sympathy, I would suggest they considered whether the patriotism of these claimants would not have helped the flag quite as much if it had been expended in our armies or navies as in the peaceful pursuits of trade. Mr. Speaker, the cruisers intlicted an equal loss on every citizen of this Reiniblic ; every soldier was thereby exjiosed to additional rigors and hardships ; additional graves, a^lditional homes made cold and desolate, additional burdens of taxation imposed, attest tlie loss. If restraints imposed by the treaty are tp be disregarded, if the Government decides to claim it for itself, then let it be distributed among those whose valor on fields of carnage saved a nation's life : let it be distributed in bounties and pensions, or, Avhat is yet more equitable, let it be covered in the Treasury and divided without liartiality among all the people. Do not idly pretend, gentlemen, that your bill rewards patriotism. In all I have said no disrespect is intciided for individuals claim- ing the enhanced premiums ; they rely upon the advice of learned counsel ; my arrows are aimed at the shallow argument which does them gross injustice. This bill enacted into a law, France and Eng- land involved in war ; cruisers fitted out from the harbors of this neutral repulilic ; England knocks at our door; presents claims foj* 15 war premiiiuis. We say. " Have you forgotten tlie Geneva award given pm-suant to the treaty of Washiugtouf "' England will say, " No ; but while I remember the smart Yankee trick of the American Republic, which, disclaiming all concern about indirect claims, contrived under the guise of a gross sum to collect and distribute them all."' What a spectacle then would the glorious Republic jiresent! Con- victed of treachery to treaty obligations, of misapproitriatic* of mon- eys intrusted to it in a iiduciary capacity. The tableau would be indeed interesting if ray honorable friend and colleague should hap- pen just then to be the Secretary of State. Perhaps England would say, "We discard the treaty you hafc vio- lated ; we demand damage as though it had never been signed."' What a pitiable plight ! Would my honorable friends pride them- selves as wise lawyers and considerate legislators ? The peoi^le would be entirely indili'erent about the cost or the size of their head-stones. If the British Parliament should euact a law declaring the treaty of Washington a nullity, we would invoke upon it tlie execrations of mankind ; luid yet we are asked by this bill to do that which in En- gland would be deemed infamous. Mr. Speaker, there are among those claiming enhanced prcmiuuts gentlemen who recognize the meaning of a sacred compact and the national obligation to respect the same, who disdain to receive wliat does not belong to them. I refer to Grinell, Minturn «S: Co., of the city I have the honor in part to represent, who frankly write, in a letter dated January d, 1874, as follows : After tlio decision of the Geneva l)oard of arbitration, disallovrin^ the claims for ■war premiums, vre supposed that all chance of our receiving auythin;; for those claims was ended, and the idea of ni.akin,^ an allowance to clainiautsof this chaiuc- ter, by means of takiug away from the insurance companies the amounts allowed by the Geneva board in satisfaction of their direct chiims for hisses of ships and cargoes vested in them as assignees, by abandonment or otherwise of the claims of the original parties, is an idea which certainly never would liave occurred to us. The letter, a part of Avhich I have .just read, indicates how this question addre.s.ses itself to the commercial miiul, which, in obedience to the dictates of intelligent .self-interest, always recognizes the full force of honesty and integrity in all business transactions. In the court of Alabama conunissioners, in the case of West vs. The United States, this straightforward language is employed: Does not natir)nal courtesy and good faith reiinirc of us to su]>pose that Crtngrcas in creating tin; court never intended we shonhl distribute the fund other tlian for tlie purj)oses Great JSritain supposed she was jiayingit/ Sni>pose, fresent committee f .Mr. Speaker, the m.-ijoiity report in predicated ii|)on a false notion that lih' el.iimH in question ar<'againsf the I'niteil .States. When'for.- liieir warrant for this con' lunion / The, United Stat<'s (Jovernmeiit IG • comuiittcil no wrong in tbo premises ; no daaiage occurred by reason of their neglect. The wrongs done for which tlie award was made resnlted from the negligence of P^ngland. All claims were against England ; the claimants, nnalde individually to press their demands against a foreign government, invoked their own Government to act as sponsor and agent. On the 'I^id of September, 1865, the Department of State isAed a circular in the following form: Dei-aktmext of State, Wanhinijton, September 22, 1865. Citizens of tlio TTnited States having ilaims anjaiiist foreijcn governments, not founded in eontract, wliicli may liave oiijiinated .since the 8th of February, 1853, will, without any delay which can be avoided, forward to this Department state- ments of the same, under oath, accompanied by the proper i^roof. * ^- * * * * * ' It is proper that the interposition of this Government with the foreifjii government against which the claim is presented should be requested in express terms, to avoid a possible objection to the Jurisdiction of a future connaission ou the ground of the generality of the claim. Claims of citizens of the United States against this Gov- ernment growing out of the late insurrection are under cognizance of other De- partments, of the Court of Claims, or are a subject for an .appeal to Congress. Were the majority of the Judiciary Committee cognizant of this letter ? Did they note the manner in which the claims were des- ignated ; the distinction made between claims against Great Britain and claims against the United States ; the instructions given to such claimants? If so, what an astonishing assumption that the obliga- tion to jjay the claims in question devolved upon our Government as such rather than upon it as the custodian of a fund, charged with a duty in making disposition thereof! The treaty, the proceedings before the trilmnal, the records of the Secretary of State, the action of Congress, the arguments in Ameri- can case, the nature of the matter in itself, are so many i)roofs, clear and explicit, to the eftect that the award wao made to satisfy the claims of American citizens against Great Britain, and the United States were intrusted with the task of custody and distribution. Mr. Speaker, a commanding duty, one of uuequaled dignity and consequence, awaits our performance. The rights of the respective parties, whose demands for this award depend upon our action, have already been determined by irreversible decree. We have yielded thereto our acquiescence and expressed therewith our satisfaction. We have accepted a trust subject to its conditions. If we fail in ex- ecuting it, so as to escape the whisper of censure, better, a thousand- fold, that the treaty of Washington had never been. What is ill-gotten rarely thrives. Arbitration would henceforth be spurned and discarded as a mode of adjusting international difficulties. A reimblic would sink into deserved obloquy, the companion of semi-barbarous nationalities, whose distinction consists in wanton disregard of sacred treaties ; a shame on our part infinitely nuiltij>lied because of the crime against humanity involved in provoking a fre- quency of wars. Whatever scrupulous honor shall demand or strict propriety sug- gest, let that be done. If rejected claims must be paid, let some other fund be provided. The Geneva award is English money, not ours. To use it as our own would be turpitude. Law, not cai)rice, should be the oracle. That our glory may be dimmed by no unworthiuess ; that the treaty of Washington may be a presage of a holier and happier futurity ; th.at it may be hailed by all the peoples of the earth as a rich, sure Xdedge of enduring peace among the nations, let this last act on our part, the execution of the trust, be honestly, piously performed. O UNIVERSITY of CALIFORMa AT LOS ANGELES LIBRARY date stamped below 0EC26flM 5m-6,'41(3644) AA 000 517 558 PLEAtf DO NOT REMOVE THIS BOOK CARdS .^^■LIBRARY^ University Research Library y