#### THE BRIGS “FANNY” AND “HOPE.” ROYAL E. GOULD, ADMINISTRATOR, v. THE UNITED STATES.

[French Spoliations, 3805.

Decided February 13, 1911.]

*On the Proofs.*

The principal question in this case is whether the master of a vessel illegally captured and condemned can maintain an action under the French Spoliation Act for personal wrongs, such as false imprisonment inflicted upon him after he has been brought on shore by the French authorities.

I. One Government may claim compensation from another for personal wrongs done to citizens.

*215II.The only claims for which the United States are liable to their own citizens are the claims which were relinquished to France by the retrenchment of Article II of the treaty of 1800 in consideration of the relinquishment by France of her claims against the United States.

III. The claims so relinquished to France were claims for property losses; for spoliations of property, and illegal seizures, condemnations, and detentions of vessels and cargoes. There were no claims for personal wrongs included among the claims relinquished to France.

IV. The *French spoliation act, 1885*(23 Stat. L., 283), limits the jurisdiction which it creates to “ *valid claims to mdemmty arising out of illegal captures, detentions, seizures, condemnations, and confiscations.”*The terms “ *illegal seizures*” and “ *illegal captures*” and “ *illegal detentions*” can only mean the illegal seizure and detention of property. Therefore this court is without jurisdiction of a suit brought by the master of a vessel illegally captured and condemned, for personal wrongs and injuries inflicted by the French authorities.

Y. A cash valuation of an amount extending into many millions having been put upon the claims of the American merchants and shipowners by both the contracting parties before they were relinquished to France they thereby became property; and having been so relinquished for a valuable consideration passing directly to the United States, after their cash value had become known they, in a sense, constituted private property taken for public use. ■

*The*Reporters’ statement of tlie case:

The following are the facts of the case as found by the court:

I. The brig Fanny, J ohn Gould, master, sailed on a commercial voyage from Kennebunk, in the then State of Massachusetts, on the 27th day of November, 1796, bound for Leogane, Hispaniola, on which voyage she was captured on the high seas on December 30, 1796, by the French privateer Loyaute, Capt. Dolhabaret, and carried into Port de Paix. The vessel and cargo were afterwards condemned by the French prize tribunal sitting at Cape Francois.

II. The brig Hope, J ohn Gould, master, sailed on a commercial voyage from Kennebunk, in the then- State of Massachusetts, on the 1st day of April, 1800, bound for St. Thomas, in the West Indies, upon which voyage she was captured on *216the high seas on April 27, 1800, by the French privateer *La*Medee, Capt. Lagau, and carried into Port de la Liberte. The vessel and cargo were afterwards condemned by the tribunal of commerce and prizes sitting at Basseterre, Guadeloupe.

III. The evidence as to the claim based upon the capture of the *Hope*consists of an affidavit made by Capt. Could on November 5, 1825, and the only evidence as to the taking of his personal property from him consists of a statement in said affidavit and a statement contained in his protest relating to the capture of the *Fanny.*No evidence has been adduced as to the quality, quantity, or value of such personal property by reason of either seizure.

The court decided as conclusions of law that the damages alleged to havé been sustained by reason of the false imprisonment and detention of Capt. John Gould and for loss of occupation were not such claims as were assumed by the United States by the retrenchment of the second article of the treaty of 1800, and therefore the court has no jurisdiction to hear the same under the act of January 20, 1885 (23 Stat. L., 283); and that the claim for loss of personal property is not sustained by sufficient evidence; and that therefore the claimant is not entitled to indemnity from the United States by reason thereof.

*Mr. E. B. Smith*for the claimant.

1. Being of those whose rights were thus surrendered, Capt. Gould stood upon the same plane of justice as the other sufferers from the French, and his representative is within the act of January 20, 1885 (23 Stats., 283), entitled “An act to provide for the ascertainment of claims of American citizens for spoliations committed by the French prior to the 31st day of July, 1801.”

Such is its title (23 Stats., 283).

Its first section concedes to “such citizens of the United States, or their legal representatives, as had valid claims to indemnity upon the French Government arising out of illegal captures, detentions, seizures, condemnations, and confiscations prior to “ September 30,1800,” the right to apply to this *217court within two years to have determined their validity, amount, and present ownership (ibid.).

Under that statute we seasonably filed the present petition, prosecuted by Capt. John Gould’s duly appointed legal representative, who is also his next of kin.

The title is, for the ascertainment of claims for spoliations, which Webster and the Century Dictionary define as the act of plundering or robbery, “ especially the act of plundering neutrals at sea under authority,” which makes the authorizing government responsible to the plundered.

But the text of the act goes further, while omitting this word. It gives the citizen opportunity to complain of captures, detentions, and seizures as well as condemnations and confiscations.

These three italicized words apply equally to persons as to property, while the last two are confined to property.

The Century Dictionary says capture is “ the act of seizing a person or property”; “to capture (1) to take or seize by force, as an enemy or his property; take captive, make a prize or prisoner of.”

Burgoyne was captured, no strategic importance attaching to the particular place of his capture.

The whole definition (1) of the Standard Dictionary is:

“ To take prisoner, or to catch, as by force, strategem, or surprise; seize and hold, or carry off as in war; take as a prisoner.”

Webster says the same, but also makes it synonymous with “ seizure ” and “ arrest.”

With this definition of capture as a “ seizure ” or “ arrest,” and the ordinary understanding of “seizure” as being the same, except that it implies the use of force, while a capture may be effected by strategem, we forbear definitions of this word.

The Century’s definition of detention is: “The state of being detained or held back; restraint; confinement.”

Giving the same definition, the Standard adds: “2. Confinement or restraint'of one’s person,” quoting this line from. Pomeroy’s Mun. Law, “All detention is technically an imprisonment.”

*218So say all lexicographers; such is the common understanding ; and Congress must, have used these three words conformably thereto.

This construction accords with what this court has noticed to be—

“the subjects of diplomatic complaint between 1793 and 1800, i. e., the French statutory decrees impairing the rights of neutral commerce ©n the high seas, the capture of American merchantmen by French cruisers, and the unjust and lawless condemnations of American vessels, and imprisonment of American seamen by French tribunals.” (Leghorn Seizures, 27 C. Cls., 234.)

(See various congressional reports on the subject. Histories, *passim.)*

It would be a reproach to which our Government and people are not amenable if, while justly indignant at the wrongs done to property, they were indifferent to the imprisonment and sufferings of men.

Nor can we imagine the Congress of 1885 to have intended finy such discrimination.

Its enactment was intended to cover all the incidents of the wrongful and oppressive acts of the French tribunals and officials in the West Indies which constituted a valid claim against France for indemnity committed prior to September 30, 1800.

Such, certainly, is the character of the present claim.

This being a remedial statute, based upon a consideration, should be interpreted liberally to reach every claim which is part of that consideration.

In *Neal*v. *Moultrie*(12 Ga., 104) the court say a statute is remedial which “ creates a right of action or recovery in an individual or a particular class of individuals.”

All we claim is, however, that the unambiguous language of the statute should be taken according to the ordinary, as well as lexicographical, meaning of the words to effectuate equal justice between all persons concerned in its subject matter and origin.

Capt. Gould’s claim is of the character of those in support of which England and Germany are at this writing blockading the ports of Venezuela, and which international commissions are constituted to adjust — injuries to the persons *219and property of citizens of one state by the authority or through the negligence of another.

It is substantially an action for false imprisonment, with circumstances of aggravation and of robbery of effects.

It is universally declared that the gist of such an action is *“*unlawful detention ” — the word used in the first section of the act of January 20, 1885. *(Rich*v. Mclnerny, 103 Ala., 345; *McCarthy*v. *D^Armit,*99 Pa., 71 mid.; *McConnell*v.‘ Kennedy, 29 S. C., 187; *Hobbs*v. *Ray,*18 E. I., 85; *State*v. Lunsford, 8 N. C., 530; *Balter*v. Barton, 1 Colo. Ap., 187; *Tavenner*v. Moorhead, 41 W. Va., 120.)

The presumption in favor of liberty is so strong that mere proof of imprisonment throws upon the defendant the burden of establishing justification. *(Barleer*v. *Anderson,*81 Mich., 508; *People*v. *McGrew,*77 Cal., 570; *ZaTlimore*v. *Ammeivnan,*39 Ind., 327; 99 Pa. St., 70, cited, *supra.)*

In our case the decree of condemnation which recites the imprisonment of Capt. Gould shows its illegality.

As said per Holmes, J., the original arrest being unlawful, . the whole detention was. *(Bath*v. *Metcalf,*145 Mass., 274 to 276, citing *Murphy*v. *Countiss,*1 How., 143; 2 C. & P., 432.)

*Mr. John W. Travner*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

PIowry, *Judge,*

delivered the opinion of the court:

This is a petition for reimbursement from the United States under the act of January 20, 1885, 23 Stats., 283; 1 Supp., 471; 2 Supp., 1001. The principal question has never before been presented to the court.

It is alleged that the master at the time of the capture of the brigs was imprisoned, and while in durance vile was subjected to indignities, insufficiently fed, and deprived of the control of his vessels, and damaged for loss of occupation. Substantially the action is for false imprisonment, and to all intents and purposes the claim is for punitive damages.

It is not doubted that one government may claim compensation from another for wrongs done the persons of its citizens. International commissions are frequently consti*220tuted to adjust injuries to the persons of one state by the authorities or through the negligence of another government. But here the inquiry is: What claims were released for a valuable consideration by the United States to France by the retrenchment of the second article of the treaty of 1800, and whether this court can report an award in the nature of an allowance for the injuries alleged to have been sustained.

The first mission sent to France to obtain indemnities for the losses of our citizens was without opportunity to conduct negotiations, because the existing Government refused to receive what was known as the Pinckney Commission. But claims were subsequently presented and negotiated on the part of the United States by the Ellsworth mission. The instructions which this last mission had as an indispensable condition of any treaty provided for a stipulation to make to the citizens of the United States “ full compensation for all losses and damages which they shall have sustained, by reason of irregular or illegal captures or condemnations of their vessels and other property, under color of authority or commissions from the French [Republic or its agents.” 2 Am. St. Pap., For. Rel., 302; Doc. 102, p. 561. As an ultimatum the instructions provided that if France would treat with us “ an article be inserted for establishing a board, with suitable powers to hear and determine the claims of our citizens, for the causes hereinbefore expressed, and binding France to pay or secure payment of the sums which shall be awarded.” 2 Am. St. Pap., 306; Doc. 102, p. 575.

It will be observed that the instructions related to captures or condemnations of property alone. There was no demand for damages arising out of wrongs committed upon the officers or crews of vessels captured or condemned. The American commissioners strictly followed the authority given to them. At the outset they presented to the French the project of a treaty to settle the differences which nearly resulted in war between France and the United States. The Americans’ first proposal related wholly to losses and damages to property. Subsequently our mission delivered to the French a written proposition that the indemnities sought were to be ascertained and secured “in the manner proposed in our *221project of a treaty.” 2 Am. St. Pap., For. Rel., p. 328; Doc. 102, p. 620.

Paragraph II of the instructions to the Ellsworth Commission provided for the appointment of a board to examine and adjust all the claims similar to a board provided by the Jay treaty in the settlement of claims with Great Britain. The language of the Jay treaty was similar to the language employed in our proposals to France and related solely to “ irregular or illegal captures or condemnations of vessels and other property ” of our citizens. 8 Stat., 121. The United States also had a treaty with Spain for losses sustained by our citizens for illegal captures and condemnations of vessels and cargoes. This was in 1795 and was made to carry out the provisions of article 21 of our treaty with Spain. 8 Stat., 150.

Nowhere does it appear that there was any presentation or allowance of a claim for damages for false imprisonment under any of these treaties.

Though our Secretary of State did complain of the ill treatment of American seamen in communications .to Congress, and though with the Pinckney Commission there was an allusion to the violence done to the persons of our citizens, the language must be taken as an inducement to obtain compensation for losses of property.

In *Gray's*case, 21 C. Cls. R., 340, and in *Gushing's case,*22 ibid., 1, this court incidentally referred to the claims surrendered as property claims only. The reason is manifest. If injuries to the person had been the subject matter of consideration in framing the matter of proposed liability, such claims could have been incorporated as a part of the retrenchment of the treaty only by having been subsequently presented to France.

In considering the *Leghorn*Seizures, 27 C. Cls. R., 239, this court said that the subject of diplomatic complaint between 1793 and 1800 was * * * imprisonment of American seamen by French tribunals to be read in the light of the negotiations set forth.

It must not be forgotten that at the outset our claims for the illegal capture of property did not constitute the principal object of our negotiations with France, but to secure *222release from our guaranty to France of her territorial possessions in America.

When, pursuant to instructions, our commissioners were urging settlement, it was Napoleon who suggested that the national demands and privileges which France had possessed under a previous treaty between the two countries (which our Congress had undertaken to abrogate) be ended and that the “ just claims which America might have made for injuries done in time of peace ” be relinquished. That proposition was finally accepted by the two Governments, and Napoleon by it accomplished the suppression contained in the second article of the treaty which was finally made. That masterful mind is on record as stating that he fixed upon these two points as “ equiponderating ” propositions. There is nothing certain arising out of all the'negotiations that anything was expected or demanded by our Government beyond compensation for property losses. The shipping and commercial interests of this country alone were under consideration.

The title of the act of January 20, 1885, is for this court to ascertain the “ claims of American citizens for spolia-tions committed by the French prior to the thirty-first day of July, 1801.” Plunder taken in war is spoil. Spoliation is defined to mean the act of plundering, robbery, and the authorized act or practice of plundering neutrals at sea. It is true that the jurisdictional act itself must be examined in connection with the title. But the first section provides for consideraion for those who had “ valid claims to indemnity arising out of illegal captures, detentions, seizures, condemnations, and confiscations.” These words are limited by the proviso excluding from consideration “ such claims as were embraced in the convention between the United States and the French Republic concluded ” April 30, 1803, and “ such claims as were allowed, in whole or in part, under the provisions of the treaty between the United States and France concluded ” July 1, 1831, and “ such claims growing out of the acts of France as were allowed and paid, in whole or in part, under the treaty between the United States and Spain, concluded ” February 22, 1819.

*223Beginning with the reports of Mr. Pickering (who was Secretary of State under the administrations of both President Washington and President Adams) and ending with the approval of the act of 1885 by President Arthur, the discussions related to indemnity for property spoliated *and not to diplomatic claims for injuries done to persons sailing the seas.*Chief Justice Marshall, while contending that there was the strongest obligation on our Government to compensate, restricted the contention to compensation for those whose vessels and cargoes had been despoiled. Clayton’s speech, 1846. Mr. Clay rested his contention for payment upon the rule of equity “ furnished by our Constitution” which provides that private property shall not be taken for public use without just compensation — making his contention so applicable as to entitle the injured citizen to consider his own country a substitute for the foreign power. The Meade case in 1821. Mr. Clay’s report was either preceded or followed by 44 other reports generally favorable for indemnity for property only. Many eminent in our public life concurred, including President Madison, Edward Livingston, Clinton, Everett, Webster, Cushing, Choate, Sumner. This court has said, however, that opponents were not wanting, among the most eminent of whom were Forsyth, Calhoun, Silas Wright, Benton, and President Polk, and President Pierce. In the three unfavorable reports the objectors put their opposition to indemnities of any kind.

The act for the payment of these claims discloses a majority of many more than two to one of those voting in the House of Representatives. Those supporting the measure include names from all sections of the country. Among many eminent in their day and time but no longer living-may be mentioned Culberson, Breckinridge, Broadhead, Dingley, Abram S. Hewitt, Oates, Thos. B. Reed, W. L. Wilson, and Jno. Randolph Tucker. The measure passed the Senate without a record vote. 16 Cong. Rec., 48th Cong.

A cash valuation had been put upon the claims of our merchantmen and vessel owners of a large sum. But later, France admitted a valuation of property spoliated of ten millions of francs. At the same time France was contending that by reason of the abrogation of our treaty with that *224Government, France had sustained damages for a sum so great money could not compensate. She conceded that money should be paid for the destruction of the property rights of our citizens. By the settlement between the two countries the United States surrendered the diplomatic claims of our citizens for the relinquishment by France of that country’s national obligations against us. The personal injuries sustained by the officers and crews of our vessels were plainly ignored.

The terms “ illegal seizures ” and “ illegal captures ” and “ detentions ” can only mean the illegal seizure, capture, and detention of property.

The French spoliation act of January 20, 1885, like the Indian depredation act of 1891, did not provide for claims growing out of personal injuries. The United States, in assuming the payment of obligations for the taking, destruction, or appropriation of property were never considered liable for consequential damages.

The spoliation claims as a class were valid obligations from France to the United States, and our Government surrendered them to France for a valuable consideration benefiting the Nation, and this use of the claims raised an obligation founded upon right. The question presented at the time of the settlement was what constituted valid claims to indemnity upon the French Government for property. That question was international and not within the scope of ordinary inquiry. It was then, and is yet to be, measured by rules which relate to the rights and obligations of nations. *Schooner Industry,*22 C. Cls. R., 3.

The jurisdictional act does not require that this court advise Congress as to the law enforceable in the courts, nor yet to abstract rights, but as to the law and equities which the lawmaking power shall deem proper to recognize.

But for the requirement to make a report this cause would be dismissed for want of jurisdiction without going into the merits. But under the statute the findings, together with a copy of this opinion, must be transmitted to Congress.

It is so ordered.