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"3. If we regard the subject from a point of view under international law, we shall find that the piratical state of Koelan was within the jurisdiction of China, and the Chinese Government is responsible for its condition, although the piracy was not directly an act of the Chinese Government, or adopted by it in a direct manner.

"In regard to this piratical imperium in imperio, the Chinese Government might take several courses. They might suppress the pirates by energetic action, as they were bound to do; they might merely make an indemnity for any losses inflicted on foreign commerce; they might leave foreign nations to take indemnity by reprisals, or take redress by bombardment (after a refusal of indemnity by the Emperor), as has been done in times past against the Barbary States or savage islands in the Pacific Ocean. It is well to note here that the expedition against Koelan was not on account of this claim. The expedition went to recover the goods and chastise the pirates, as such, and not as subjects of China. Two mandarins accompanied the force as a manifestation of its peaceful character toward China and its government. Everything appears to have been done with international courtesy and politic circumspection.

"In this case, the emperor has decided to make an indemnity, if it is due; that is, by agreeing to a convention of claims. He has made arrangements to pay this claim contingently upon its adjudication.

4. I have now to consider certain objections to this claim of a popular nature, and shall do so briefly. It has been asserted that it has always been the custom of the Chinese Government to suppress pirates, banditti, and insurrections, by buying up the leaders, and giving them pardon and promotion to office, even among the people whom they have robbed. It is sufficient to say that iniquity of this sort cannot plead custom. We have no reason to complain of the internal customs of China, but when those customs encourage piracy, which infringes our foreign commerce, the mildest redress which can be demanded is a pecuniary indemnity.

"If we consider the weakness of the Chinese Government an excuse in this case, we set aside the treaty, give immunity to the Koelan pirates, establish piracy by law, and issue in spirit, if not in fact, a roving commission to pirates to prey on American commerce, provided, for the time being, they are strong enough to be unusually audacious. It is not competent for this commission to regard these popular considerations. Commiseration for China is a point for the consideration of the United States Government when it makes treaties with China. On the other hand, the claimants are entitled to commiseration, for they have lost their property by a violent crime hostile to all human interests. They are entitled to all the equity which the facts of the case can possibly give. Their loss has been absolute and without contingency or construction.

"Equity, however, requires that the allowance of the claim should be made with a deduction. The underwriters and others should not be placed in a better position than if no piracy had occurred. The ship suffered heavily in the hurricane, and a large claim on the insurance offices would have been made. The vessel had four feet of water in the hold, and had been much strained. The masts, sails and rigging had been nearly lost before the pirates came alongside. It is impossible to say now what the exact amount of repairs, salvage, or general average would have been, or what portion of the cargo was damaged by the water in the hold or other leakage. After considering all the circumstances and taking testimony, I deem it just to allow but forty per cent. of the claim of the policy covering the hull, and the same on the policies covering the cargo, with five years' interest, at twelve per cent, to the underwriters in the United States. A separate document will be submitted, showing the amount due the claimants respectively. The rejection of this claim in 1854 (on ground which, in my opinion, overlooked the marked distinguishing features of it) has necessitated a careful review. I have endeavored to view the subject as if it were now presented for the first time. I have regarded it merely as a legal question, which requires a judicial solution, according to the best of my ability."

1

1 H. Ex. Doc. 29, 40 Cong. 3 sess. 178-180.

The report of Mr. Roberts was adopted and affirmed by Mr. Ward, and under the decision thus made the underwriters received $47,542.62, and Messrs. Alvord & Co., $7,023.52. The claim of Rooney, the master of the bark, was disallowed for want of proof of his American citizenship. Subsequently, such proof having been made, Mr. Burlingame allowed his claim to the amount of $3,040.1

The claimants being dissatisfied with the amount allowed under the decision of the board, Congress, by an act of June 9, 1878, referred the case to the Court of Claims. This tribunal rendered a decision in favor of the claimants, and on May 7, 1881, the decision of the Court of Claims having been affirmed by the Supreme Court, the Secretary of State paid out the sum of $113,077.11 in satisfaction of the judgment.

In the case of the Caldera reference has been made to Claim of Nott & Co. the claim of Nott & Co., which was disallowed by the commissioners. It appeared that on October 16, 1857, Nott & Co., American merchants at Hongkong, shipped four boxes of specie, valued at $16,197.60, on board the British schooner Nera, at that port. The schooner sailed on the afternoon of the 17th of October, and during the evening, while she was lying at anchor at a short distance from the limits of the harbor, five Chinese came alongside and requested passage to Foochoo. At about 11 o'clock at night these supposed passengers, assisted by some Chinese members of the crew, took possession of the vessel, murdered the captain and some of the seamen, and seized the treasure on board. They subsequently escaped to the mainland near Mirs Bay. The remaining members of the crew brought the vessel back to Hongkong and made a report of the occurrence. The claimants alleged that the local authorities did not exert proper diligence for the apprehension of the culprits and the recovery of the treasure; but owing, it was said, to the absence of their age In the northern part of China when the claim was rejected by the commissioners at Macao, they failed to take an appeal to the minister of the United States, Mr. Ward, and the decision of the commissioners was affirmed. Subsequently they sought to obtain payment of their claim from the United States ont of the surplus of the fund, and by an act of February 22, 1869, the case was referred to the Attorney-General. On the 3d of the next month he rendered an opinion in favor of the claimants, under which the Secretary of State paid them the sum of $38,242.53, which included interest up to the date of the Attorney-General's opinion.

der of the Fund.

It seems that when it was ascertained that a surplus Return of the Remain- would remain after the payment of the claims allowed by the board, the return of the money was proposed, but the Chinese Government declined to accept it.3 In his annual message of 1860, President Buchanan suggested that, as the remainder of the fund would in equity belong to that government, it should be appropriated "to some benevolent object in which the Chinese may be specially interested." President Lincoln in his first annual message repeated this suggestion, but added that if it should not be adopted, the money might be invested as a

1 H. Ex. Doc. 29, 40 Cong. 3 sess. 189.

2 H. Ex. Doc. 29, 40 Cong. 3 sess. 206.

3 H. Ex. Doc. 29, 40 Cong. 3 sess.

fund for the satisfaction of claims against China which might arise in the future.

In 1863 Mr. Burlingame proposed that the money should be used for the establishment of an educational institution at Peking. No action, however, was taken by Congress on the subject, and in 1867 the money was ordered to be remitted to the United States. This was done, and the money was duly invested. Out of the fund thus created the subsequent allowances in the case of the Caldera and Nott & Co. were paid. Finally, by an act of March 3, 1885, Congress directed the Secretary of State, after deducting the sum of $130,000, which was to be paid to the executors of Charles E. Hill in satisfaction of his claim against the Chinese Government for the use and loss of the steamer Keorgeor, to turn over the remainder of the fund, together with the increment derived from its investment, to China. In accordance with this direction the Secretary of State on April 24, 1885, paid to the Chinese minister at Washington the sum of $453,400.90. In acknowledging its reception the Chinese minister said: "This generous return of the balance of the indemnity fund by the United States to China can not fail to elicit feelings of kindness and admiration on the part of the Government of China toward that of the United States, and thus the friendly relations so long existing between the two countries will be strengthened."2

Mr. Seward, Sec. of State, to Mr. Burlingame, April 5, 1867, H. Ex. Doc. 29, 40 Cong. 3 sess. 17.

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Constitution of the
Court.

CHAPTER K.

THE "ALABAMA" CLAIMS COURTS.

I. THE FIRST COURT.

For the "adjudication and disposition" of the moneys received under the Geneva award Congress, by an act approved June 23, 1874, authorized the President, by and with the advice and consent of the Senate, to appoint "five suitable persons" who should constitute a court to be known as the "Court of Commissioners of Alabama Claims." It was provided that the President should designate, by appointment, one of these judges to be presiding judge of the court; that each of the judges and other officers of the court should take the oath of office prescribed by law to be taken by all officers of the United States; and that all vacancies which might occur in the court by reason of death, resignation, or inability or refusal or neglect of any of the judges to discharge the duties of his position, should be filled in the same manner as vacancies occurring in offices under the Constitution of the United States. It was further provided that the judges should meet and organize the court in the city of Washington, where its sessions should be held; that three of the judges should constitute a quorum for the transaction of business; and that the agreement of three should be necessary to decide any question arising before the court.

In addition to the judges the act provided for the appointment by the President, by and with the advice and consent of the Senate, of a clerk. And in order that the interests of the government might be protected, the President was authorized to designate a counselor at law admitted to practice in the Supreme Court of the United States, to appear as counsel on behalf of the United States and represent it in all claims filed for indemnity, subject to the supervision and control of the Attorney-General. The court was authorized to appoint one shorthand reporter. The duty of serving the process of the court, executing its orders, and preserving order in the place of its sittings, was imposed on the marshal of the United States for the District of Columbia and his deputies.

The judges were required to meet in Washington as soon as might be convenient after their appointment, and the existence of the court was limited to one year from the date of its first convening and organizing. In case it should be found impracticable to complete the work within that period, the President was authorized by proclamation to extend the duration of the court for not more than six months.

118 Stats. at L. 245.

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