No. 113.
Mr. Frelinghuysen to Mr. Denaut.

Sir: I have the honor again to refer to the claims pending before the French and American Claims Commission in regard to which correspondence has taken place between Mr. Outrey, Mr. Roustan, and this Department, and which I hold to fall within the principle agreed to by the two Governments in the case of Isaac Taylor against the Republic of France, pursuant to which the cases of Taylor and others were withdrawn from the Commission by this Government, and various eases against the United States were afterwards withdrawn by the agent of France.

The case of G. A. Le More and Company vs. The United States, No. 211 on the docket of the Commission, is founded upon the following facts:

The claimants allege that they owned a large number of bales of cotton, situated in Louisiana, which were seized by the fleet under Admiral Porter and taken to Cairo. Thereafter judicial proceedings were begun in the district court of the United States, and the case was carried on appeal to its ultimate resort in the Supreme Court of the United States, [Page 184] the decision in each instance being adverse to the interests of the Messrs. Le More.

While the proceeding was in the nature of an action in rem, it is a well-known fact, and appears in the records of this Department and of the court, that the claimants were represented by counsel at every stage.

While the case was still pending the representatives of the French Government in Washington, and the Messrs. Le More directly, endeavored to obtain a consideration of their claim by this Department, This request was uniformly declined, and it was held that the claimants should first exhaust their legal remedies before appealing to diplomatic action. After the case had been decided in the Supreme Court, a motion for a rehearing was made by the claimants’ counsel on the ground of an alleged error in the record prejudicial to the claimants’ rights, which motion was refused; and a subsequent request having been made to this Department to reconsider the case diplomatically on the ground of a failure of justice to the parties, an adverse decision was rendered as nothing was found in the proceedings authorizing a recourse to the executive branch of the Government.

This claim, therefore, does not differ in principle from that of Taylor, and, in fact, it appears even more clearly to have been finally disposed of judicially by competent authority.

The claim of Mr. Taylor was founded upon the seizure by a French cruiser of petroleum owned by him laden upon a German vessel called the Magdalena, and Mr. Outrey in his note of November 18, 1881, says:

This case having been decided in France by the prize court, and afterwards on appeal by the council of state, the agent of the French Government before the Commission has invoked the stipulations of Article II of the convention of January 15, 1880, requesting the agent of the United States Government to withdraw it before action in the case is taken by the Commission.

And further:

In investing the Commission with absolute powers, and in according to its decisions a character of finality from which there is no appeal, the two Governments intended that those powers should be exercised only within the rigorous limits fixed by them, and they have never dreamed of authorizing the commissioners to enlarge their sphere of action by leaving the interpretation of the clauses of the treaty to them.

Now, during the negotiation of the convention of 1880, it was well understood that neither of the contracting parties would consent to any revision of decisions pronounced within its territory by competent authorities in any form whatever. In order to meet such a case Article II formally and explicitly provides that the Commission shall not decide any claim that either Government has already caused to be settled either diplomatically, judicially, or otherwise by competent authorities. According to our view the case of the Magdalena has been judicially settled, since it has been passed upon by two bodies invested with judicial powers. I am aware that different doctrines have been laid down with regard to the weight to be attached to the decisions of prize courts; it does not seem to me, however, that this is a proper time for the discussion of those doctrines, for even admitting, for the moment, that the case of the Magdalena is not to be considered as having been judicially decided, it cannot be denied that it comes under the head of those which have been otherwise decided by competent authorities.

On the 17th of December, 1881, Mr. Blaine wrote to Mr. Outrey, stating—

That after such consideration as I have been able to give to the question, I have reached the conclusion that that claim, because of the antecedent proceedings by the competent authorities of France, of which it has been the subject, is not properly within the cognizance of the mixed commission established under the provisions of the convention of the 15th of January, 1880, between the two Republics.

And he further stated that the agent and counsel on the part of the United States would be instructed to withdraw the claim of Taylor, and that in taking this view of the question he (Mr. Blaine) was— [Page 185]

Influenced in no small measure by the earnest desire felt by this Government to give full effect to the spirit no less than to the letter of the second article of the convention, and by thus withholding from the cognizance of that international tribunal any claim which may have already been made the subject of inquiry and determination by the competent authorities of France, avoid any occasion for making the competency of such proceedings the subject of question or review. That the French Government, animated by a like disposition, will pursue a similar course with regard to any claim presented for the consideration of the Commission, on behalf of citizens of France against the United States, which shall be found to have already been inquired into, and decided either diplomatically, judicially, or otherwise by the competent authorities of the United States, I do not allow myself to doubt.

On the 21st December, 1881, Mr. Outrey wrote me as follows:

I need not add that on our part we shall strictly observe, the case arising, the legal interpretation given by mutual consent to Article II of the convention of January 15, 1880.

Pursuant to the agreement thus arrived at, several cases have been withdrawn. But while the case of Le More and Co. was some time since brought to the attention of Mr. Roustan, and while I understood that our views harmonized, and while several conventions have taken place with regard to it, it appears to be still pending before the Commission, and I am now informed that that body purposes to force it to trial, notwithstanding the negotiations which have taken place and the further negotiations which are now pending. The case is clearly one which has been disposed of by a competent tribunal. It has been decided in regular gradation by the inferior courts of the United States, and by its highest court of final resort. This is not denied, and while it has been contended in conversation that the Supreme Court had not jurisdiction of the case, a conclusive answer to this assertion is found in the fact that the very point was made before the court, and the court in terms and expressly decided that it had jurisdiction over the case. This decision cannot but be regarded as final; and as, to quote Mr. Outrey’s words, “during the negotiation of the convention of 1880 it was well understood that neither of the contracting parties would consent to any revision of decisions pronounced within its territory by competent authorities, in any form whatever,” and as the case of Le More has been judicially settled, since it has been passed upon by three bodies invested with judicial powers, I have to request that the agent on behalf of the Republic of France before the French-American Commission be instructed to withdraw this claim from the consideration of that body.

Be pleased to accept, &c.,