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others in each branch, proceeds on the ground that the Tribunal having, by a process of elimination, determined that Great Britain was responsible only for the injuries caused by the direct acts of the three cruisers before mentioned, which injuries were in effect presented before them in detail and adjudicated upon, and having, at the request of the United States, and for obvious reasons of public policy, affecting alike the interests of the two nations principally concerned, given a gross sum on account of those very injuries and no others, this sum was to be considered as paid simply for and on account of those injuries, and the United States had received it as simply the agent or trustee of the parties for whose particular injuries it had been awarded.

These gentlemen cite, in addition to the language of the President before, his message after the award, in which occur these words: “It will be the province of Congress to provide for the distribution among those who may be entitled to it of their respective shares of the money to be paid ;” and the argument of Sir Roundell Palmer, based upon the high premiums which ruled during the war, to the effect that it would be equitable to take into consideration these premiums before allowing to the insurance companies “not only the amount of all their losses, but interest thereon,” – the latter to show that the Tribunal did take into account the very considerations now urged for not paying the insurers their losses. They refer to the case of a vessel captured by the French in 1807, where a total loss was claimed by the insured, and the question before the court was whether the value of the spes recuperandi from France should be deducted from the amount payable by the insurer; in which case Chief Justice (afterwards Chancellor) Kent, delivering the opinion of the Supreme Court of the State of New York in the negative, says, that if France should at any future period agree to and actually make compensation for the capture and condemnation in question, the government of the United States, to whom the compensation would in the first instance be payable, would become trustee for the party having the equitable title to the reimbursement; and this would clearly be the insurers, if they should pay the amount of the loss. This shows the manner in which one of the principal courts and one of the most illustrious judges in our country has regarded the position of the United States in an analogous case.

i Gracie v. New York Ins. Co., 8 Johns. R. 237.

With respect to the right of the underwriters in particular, as it is conceded by Mr. Edmunds to exist as a matter of municipal law, and not intelligibly denied by the Committee on the Judiciary of the House, it will perhaps be sufficient to quote the following from the report of a committee appointed, at the request of Lord Granville, by the London Board of Trade to aid the counsel of the British government in presenting their case before the Tribunal:

The American insurance companies who have paid the owners as for a total loss are, in our opinion, entitled to be subrogated to the rights of the latter, according to the well-known principle that an underwriter, who has paid as for a total loss, acquires the rights of the assured in respect of the subjectmatter of insurance. This principle was explained and acted on in the well-known English cases of Randall v. Cochran, 1 Ves. Sen. 98; and The Quebec Fire Insurance Co. v. St. Louis, 7 Moore, P. C. 286; and is well recognized by the courts of America. On the other hand, it is equally clear that underwriters cannot be entitled to any thing more than the assured themselves, for the claim of the former is founded on nothing else than their title to be subrogated to the rights which the latter possessed, and which, therefore, cannot possibly be more extensive than the claim which the latter would be entitled to maintain. From these considerations two consequences follow: In the first place, where the claimant is the insurance company, and not the owner, compensation cannot be due for any sum exceeding the amount of the actual loss sustained by the owner, however much that sum may fall short of the amount paid by the company by reason of the property having been overinsured. In the second place, wherever the owner puts forward a claim for his loss at the same time that the insurance company also claims the money paid by them in respect of the same loss, such a double-claim must at once be absolutely rejected, since to allow it would be in effect to sanction the payment of the loss twice over.

It may be remarked, in passing, that the phrase “ double claim " probably had its origin with these gentlemen, and that their view of the question was so clear that a possible misinterpretation of their phraseology was overlooked. But it will be seen that the law is considered by the Committee of the Board of Trade to be perfectly well settled both here and in England.

It may be well to inquire what have been the views of our statesmen heretofore in a much more complex and difficult case,

? See Comegys et al. v. Vasse, 1 Peters, 193 ; Rogers v. Posack's Ex'rs, 18 Wendell, 818.

? British Counter Case, p. 135.

– that of the claims for French spoliations upon American commerce prior to the year 1800. In this case the government of the United States had made a treaty with France by which they guaranteed to the latter power the integrity of its possessions in America. Those possessions were subsequently lost. During the disturbed period of the Revolution in their country the French government illegally seized a great number of our vessels with their cargoes, valued, correctly or otherwise, at the aggregate sum of $20,000,000. It was a period fraught with peril, and our government counted it wise to agree with France, about the year 1797, that, in consideration of the relinquishment by France of its claim on our government, as such, for damages by the nonfulfilment of the guaranty before mentioned, and for other similar considerations, our government would relinquish its claims on France for the damage done to our citizens by such seizures, many, if not most, of which claims were conceded by France to be just; that is to say, our government bartered the claims of individuals for a public benefit. It was thereupon contended that the individuals whose rights were thus appropriated to the use of the public had a claim upon the public for compensation, that what had been claims upon the French government had become claims upon our own. This was not a case in which a sum of money had been received by our government as compensation for specific injuries to citizens, and the real difficulty was in fact just here. The country was, in respect of coin and movable property of all sorts, so very poor that it seemed impossible to pay such heavy claims by taxation, and of doubtful expediency to raise the necessary amount by loan. As the country grew in prosperity, however, the claims were pressed with progressive vigor. More than thirteen states have passed resolutions in their favor. “No less than forty-two committees of the House or Senate” [of the United States have reported on the memorials of the claimants, “ and all but three in favor of them.” 1

“Five times have bills providing for their payment passed the Senate, and twice have both branches of Congress sanctioned" it; “but the measure failed under the vetoes of Polk and Pierce.” 2 Mr. Webster, as chairman of the committee on the subject, in

1 E. H. Derby, Esq., in Atlantic Monthly, August, 1870. 2 Mr. Derby, wb. sup.

the year 1835, thus expressed himself in the Senate of the United States:

The question, sir, involved in this case is essentially a judicial question. It is not a question of public policy, but a question of private right, — a question between the government and the petitioners; and, as the government is to be judge in its own case, it would seem to be the duty of its members to examine the subject with the most scrupulous good faith, and the most solicitous desire to do justice.

Before the interference of our government with these claims, they constituted just demands against the government of France. They were not vague expectations of possible future indemnity for injuries received, too uncertain to be regarded as valuable or be esteemed property. They were just demands, and they were property. The courts of law took notice of them as property. They were capable of being devised, of being distributed among heirs and next of kin, and of being transferred and assigned like other just and legal debts. A claim or demand for a ship unjustly seized and confiscated is property, as clearly as the ship itself. It may not be so valuable or so certain ; but it is as clear a right, and has been uni. formly so regarded by the courts of law.?

The papers show that American citizens had claims against the French government for six hundred and fifteen vessels, unlawfully seized and confiscated. If this were so, it is difficult to see how the government of the United States can release these claims for its own benefit with any more propriety than it could have applied the money to its own use, if the French government had been ready to make compensation in money for the property thus illegally seized and confiscated; or how the government could appropriate to itself, without making compensation, the just claims which the owners of these six hundred and fifteen vessels held against the wrong. doers, any more than it could appropriate to itself, without making compensation, six hundred and fifteen vessels which had not been seized. 8

As to the portion of the claims now owned by underwriters, it can hardly be necessary to say that they stand on the same equity and justice as if possessed and presented by the owners of ships and goods. There is no more universal maxim of law and justice throughout the civilized and commercial world than that an underwriter, who has paid a loss on ships or merchandise to the owner, is entitled to whatever may be received from the property. His right accrues by the very act of payment; and if the property, or its proceeds, be afterwards recovered, in whole or in part, whether the recovery be from the sea, from captors, or from the justice of foreign states, such recovery is for the benefit of the underwriter. Any attempt, therefore, to prejudice these claims, on the ground that many of them belong 1 Webster's Works, vol. iv. p. 158. 2 Ib. p. 159. 3 Ib. p. 169.


to insurance companies or other underwriters, is at war with the first principles of justice.

I believe the claims to be as just as were ever presented to any government. I think they constitute an honest and well-founded debt due by the United States to these claimants, — a debt which, I am persuaded, the justice of the government and the justice of the country will one day both acknowledge and honorably discharge.

The law respecting the right of insurers to subrogation having been asserted thus fully, and, of course, understood by the mercantile community, it is difficult to see why the committee of the House deny such right to an insurer who stands upon his rights, as perfectly well defined by law, and admit it in favor of those who have been so “superfluous ” as to make it the subject of a special agreement. If a man buys goods upon credit, and gives a written agreement to pay for them, is his legal position at all different from that of one who simply buys them without any written stipulation, but in the usual course of business? The question of evidence is not important in this connection.

In considering the question of the rights of the insurers and others, suppose that the government of Great Britain had pleaded before the Tribunal that they had paid the claims of some or all of them, is it conceivable that such a plea, if proved, would have been disregarded ? If they had shown that all had been paid, would not the award have been in effect “judgment for plaintiff, and judgment satisfied”?

It has been suggested that the habit of the Committee on Claims of the House of Representatives has been for some six years recently to reject such claims as these of insurers. If so, is not the obvious reply, “so much the worse for the Committee on Claims ” ? Do they make the law ?

The action of such a committee cannot be set up, except to its great and manifest disadvantage, against that of the highest courts which administer the English common law. The right of the insurer in the case before us has been allowed by the Tribunal, and is admitted to be in accordance with law. “ The court awards it, and the law doth give it.”

To exclude that right, Congress has been driven to adopt the conclusion that no individual has any claim whatever upon the proceeds of the award. And this conclusion rests upon two 1 Webster's Works, vol. iv. p. 156.

2 lb. p. 178.

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